The Foreign Service Journal, October 2003

for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’” Progress on Death Penalty Issues The right to effective repre- sentation at trial. In capital pun- ishment matters, the Court sig- naled a greater openness than in the past to the informed opinions of bodies that have explored this issue in depth. In a key decision on the right to effec- tive representation at trial, Wiggins v. Smith , the Court pointed favorably to the guidelines for defense attor- neys established by the American Bar Association. Though not strictly an international organization, the ABA has members around the world and is deeply involved in the subject of international law. Moreover, in a previous decision, the Court had bypassed the ABA’s guidelines as worthy ideals, but not required for minimal constitutional representation. Juvenile offenders. It is widely anticipated that the Supreme Court will eventually review another issue that has strong international law overtones: the execu- tion of juvenile offenders. Just as the Court reviewed the execution of the mentally retarded in Atkins , so, too, are they likely to reconsider whether those who were under 18 years of age when they committed their crimes should be eligible for the death penalty. Four justices, ordinarily enough for the Court to grant certio- rari in a case, have already expressed their view. In dis- senting from denial of the writ of habeas corpus in a 2002 death penalty case, they stated that it has come time to end this “shameful practice” that they regarded as a “relic of the past.” Since international opinion, as expressed through the International Covenant on Civil and Political Rights and in the Convention on the Rights of the Child, is nearly unanimous on this point, it seems likely that international opinion will contribute to the ultimate decision in this case. Consular relations and the Vienna Convention. Despite the Supreme Court’s dismissal of international challenges based on the Vienna Convention on Consular Relations mentioned above, the issue has gained attention both at the U.S. State Department and among countries with citizens on death rows in the U.S. In an effort to inform and assist law enforce- ment agencies with regard to this binding treaty, the State Depart- ment has distributed summaries of the information that police should give to foreign nationals in a variety of languages. The president of Mexico, Vicente Fox, emphasized the crit- ical importance of this issue for his country when he cancelled a scheduled visit with President Bush in Texas after a Mexican national was executed, despite the failure of law enforcement to provide him with his rights under the treaty. Recently, Mexico obtained a ruling from the International Court of Justice calling for stays of execu- tion for three Mexican citizens facing possible execu- tion dates in the U.S., and calling for more time to study the cases of 48 other such Mexicans on death rows around the country. Countries such as Mexico and El Salvador, which have a number of their citizens on state death rows, have begun providing assistance to the lawyers defending their citizens accused of capital crimes, sometimes even before trial in order to avoid the death penalty in the first place. In U.S. courts, the Vienna Convention issue is being raised earlier in the judicial process and in some cases courts have recognized the establishment of individual defendant rights connected to this treaty. U.S. District Judge David H. Coar ruled that a decision by the International Court of Justice “conclusively determines that Article 36 of the Vienna Convention creates indi- vidual enforceable rights, resolving the question most American courts have left open.” In his ruling in the case of Gregory Madej, a Polish foreign national who claims that Chicago police and Cook County prosecu- tors violated his right to secure consular assistance, Judge Coar noted that Madej's rights under both the Vienna Convention and the Consular Convention of 1972 between Poland and the United States “were clearly violated.” The judge rejected arguments that an individual alleging violations of Article 36 may be denied relief if he misses the deadline imposed by the state for initiating such a challenge to his conviction or sentence. F O C U S 36 F O R E I G N S E R V I C E J O U R N A L / O C T O B E R 2 0 0 3 There are increasing signs that giving way on the death penalty would not be the major concession it would have been in the past.