No, because ratifying an amendment is a completely different process than enacting a bill in Congress.
Correct, but it would not be improper either, and it would meet the requirements of the Arizona law.
It’s not required by Art 36 – but if it’s done, does it meet the requirements of Art 36?
Right, but also:
“The said authorities shall inform the person concerned without delay of his rights under this subparagraph”.
That seems to suggest that it’s the responsibility of the arresting state to inform the arrested that he has the right to ask for the presence of consular officials. You’re right that in this particular case it probably wouldn’t have made much of a difference, because he gave the confession before he was arrested and before he was entitled to a consular official, but it’s kind of hard to read the provision and not come to the conclusion that he should have been informed at some time of his right to a consular official.
“At some time” after the authorities became aware he was covered by the provision, yes.
No, at some time after his arrest or detainment. Specifically, “without delay” after his arrest or detainment. Since the authorities have a positive requirement to inform foreign nationals of their right to speak with consular officials, that carries with it the responsibility to determine who’s a foreign national and who’s not.
If the US doesn’t want to comply with the terms of the treaty, it should withdraw from the treaty; not violate the treaty and then disallow any remedy for those individuals whose rights have been violated.
Preferably before the execution.
Just out of curiosity (I haven’t followed this case closely), any idea when it became known that he was not a U.S. citizen?
Hmmm, informing someone who is not arrested or detained. Obviously, this has to be decided on a case by case basis. Informing someone, then two week later arresting them, would not qualify, in my opinion.
Now, a situation closer in time would go down like this and would require a combo question/statement informing from police…
1- Police encounter
2- Are you a US Citizen?
3- Answer: No
4- The police would then still have to actually inform them of their consular rights now to try and comply with Art. 36 (“You have the right to contact your consulate/embassy”)
5- sometime soon thereafter arrest or book them.
I don’t see how that’s relevant to someone who has not been arrested or booked. They only need to be informed when they are detained and don’t have access to their consulate. So legally, I’m not sure, probably no. I’m not sure what would happen if they actually invoked their right, but did it before being arrested/booked. If they could invoke that right (and that invocation caused the authorities to contact the consulate/embassy), then I could see it applying and being consistent with Art. 36. If they could not invoke or it had no effect until they were actually booked/arrested, then no, it would not comply with Art. 36. So again, case by case, and the closer in time police inform person to arrest/booking would obviously be crucial.
However, in practice, I would say no effect, no effect until after arrest/booking as the advice from the State department suggests.
I assume he was warned of his right to an attorney in general. I don’t see any significant difference in using a consular attorney vs. using a regular one.
Would it then not be the duty of the attorney that he hires, or has hired for him, to inquire as to his citizenship status before trial?
IOW, a difference that makes no difference is no difference.
Regards,
Shodan
Again:
“The said authorities shall inform the person concerned without delay of his rights under this subparagraph.”
Was Humberto Leal a person who had rights under this subparagraph? Yes, he was.
Did the authorities arresting him inform him at all, much less “without delay”, of those rights? No, they didn’t.
So how is this not a treaty violation? The fact that the United States gives defendants other rights, like the right to an attorney, doesn’t exempt them from giving detained foreign nationals access to consular officials, or letting them know that they have the right to access to consular officials.
I can’t find the precise date. From what I’ve read, it wasn’t know in 1994 (it appears even Leal Garcia may not have known he was a Mexican citizen) but an appeal based on the citizenship issue was filed in 1998. So sometime between those two dates.
Possibly cost, which is a freaking big deal. Some countries’ consular staff do nothing more than recommend qualified attorneys; some have staffers with knowledge of local laws and procedures; and some may even provide financial assistance for legal expenses or provide guidance on how to obtain such. If you were being charged with murder and knew you might have options other than a public defender, wouldn’t you look into that?
And it did. He had legal representation and his conviction was appealed to several higher courts. He got far more consideration than his victim did.
Texas did exactly what it was supposed to do. All this whining and bitching and moaning that’s going on over this is nothing but hogwash.
This is why it’s not a self-executing treaty. The receiving State must make laws that define how, and under what cirsumstances, the “said authorities” are supposed to learn that a detained person has any rights at all under this subparagraph.
So, no, they didn’t inform him, but it was because they didn’t know these requirements were applicable to him.
Cost to who - Garcia? I don’t know if he paid for his own defense or not - I suspect not - but I doubt a consular attorney is going to be cheaper than a PD.
I doubt there is much difference between a US PD and a PD from the Mexican consulate.
Because nobody apparently knew that the treaty applied to him.
And, as I have said, it doesn’t make any difference. Whether they had warned him of his right to a Mexican attorney as opposed to just an American one, he had already incriminated himself. He had the right to remain silent too, but there was no obligation to warn him of this - it was a non-custodial interrogation.
I don’t see how anything would change if we changed the Miranda warnings to include “You have the right to an attorney, and to have one present during any questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before any questioning. If you aren’t a US citizen, it might be one from the consulate.” He would still have been convicted, and rightly so.
Like Bricker says, Texas was under no obligation to warn him. Maybe this guy inculpated himself because he didn’t know he had the right to remain silent even in a non-custodial interview. Tough noughies for him - the police don’t have to warn you of your rights unless and until they arrest you. Same as for his right to a consular attorney - if you don’t mention you are a foreign national, it’s your problem, not the state of Texas’. You should mention it some time up to or during your trial, not four years after the fact.
And if this guy didn’t know he was a Mexican citizen, then no amount of asking by the police is going to fix the situation.
I don’t see any reason why we shouldn’t execute this guy because he got a US attorney instead of one from the Mexican consulate. It’s irrelevant to his guilt, and his right is to a fair trial, not a perfect one.
Regards,
Shodan
They should have, though. This treaty is what? 50 years old? And the US hasn’t passed a mechanism for compliance yet? It’s disgusting. And it would be one thing if this were the first time this has come up, but this happens over and over again.
I don’t see how it doesn’t make any difference. It seems like it makes an enormous difference. He still probably would have been convicted and sentenced to death, sure. But the difference it would have made is that we would have been in compliance with a treaty we signed instead of violating it. And, like you said, it would be incredibly easy to do. Just add to the Miranda warning, “If you are a foreign national, you have the right to request that your nation’s consulate be notified and, if you so desire, to meet with a consular official.” But yet, we don’t do it, and we routinely arrest and try people in violation of their rights.
Then why don’t you assume that despite ratifying the treaty, Congress has no intention of actually executing its terms. Why isn’t that completely within Congress’ province? Why is their failure “disgusting?”
No. No one has the right to keep quiet about his nationality and still get informed about his right to consular access.
You don’t know that, and neither do I. I don’t know what mechanisms the Mexican Consulate had in place at the time for ensuring its nationals’ right to competent counsel was protected. Even if a PD would be cheaper, the Consulate may have referred him to someone more competent, and who knows how the case might have gone differently? Even with the confession, assuming it had been admitted into evidence, who knows if he would have gotten the death penalty?
Regardless of whether you think a PD would have been at least as good as whoever the Consulate may have referred him to, the point remains that it would have been quite simple to add a brief statement about the right of foreign nationals to consular assistance. Nearly 12% of U.S. residents are foreign born, so the issue comes up all the damn time, and apparently some jurisdictions have added such notifications of their own accord.
Why would the U.S. ratify a treaty it had no intention of implementing? What’s the point? I bet you would all be screaming if a U.S. citizen were arrested for murder in Mexico and not allowed access to consular assisatnce that was guaranteed by treaty.
That’s a load of baloney. A couple of simple questions would give law enforcement enough info to make a simple phone call to check on his citizenship status. And no, I don’t think we should rely on the citizenship determinations of often quite unsophisticated people; hell, my own grandmother, who was educated through high school level in an English-speaking country and was by no means stupid, may not have been aware of her immigration status (and for that matter, I still haven’t managed to figure out what her immigration status was, but she’s dead now, so at least nobody can deport her). This kind of thing happens often enough, especially to people who immigrated as young children, that there is a specific exemption for such cases from the general bar to visa issuance, naturalization, etc. for people who make unknowing false claims of citizenship.
Again, I bet a lot of the people in this thread who have been 100% in favor of frying this guy would be screaming bloody murder if the same thing happened to a U.S. citizen abroad.
Why is it disgusting for a country to ratify a treaty and then deliberately not comply with it? It’s an example of bad faith, it makes a mockery of the law of treaties, it destroys international trust in a state, and it makes an already anarchic international situation even more anarchic. One of the fundamental principles of relationships between states is that they can come to agreements that once entered into, are followed by all parties. This gives a sense of stability to international relations, as it allows for the development of international law and international relationships. We can enter into agreements with other nations and know that there are certain safeguards for the treatment of prisoners of war, for instance, or for non-proliferation, or for the treatment of diplomats, or the treatment of foreign nationals accused of crimes, or for common defense. Entering into these agreements make us more secure, and the world more peaceful, because setting up agreed upon rules of behavior that all parties who agree will comply with enables us, first, to derive tangible benefits (such as knowing that any of our POWs will not be mistreated, or our diplomats will be unmolested, or that the United States government will be able to be sure that detained Americans are being treated fairly and that their family members are informed of their whereabouts), and second, to set up where disputes can be settled peacefully instead of by violence.
Treaty violations, therefore, must be taken very seriously, and in fact, they have been considered casus belli for war…see for instance, the Iraq Resolution, where the US went to war with Iraq for their violation of UNSCR 687, or the violations of the Treaty of Fort Laramie that led to war between the United States and the Sioux, or the attack on the city of Saguntum by Carthage, in violation of treaty, that led to the Second Punic War.
And, of course, not complying with treaties hurts the United States internationally. We lose moral authority to complain about North Korea’s violations of the NPT, or China’s failure to enforce treaties dealing with international copyright when we ourselves fail to comply with treaties we are signatories to.
No country should sign a treaty unless they feel that it is in their best interest. But, having signed the treaty and deriving whatever benefit from the treaty, they have both a moral and a legal duty to comply as best they can with the terms of the treaty. To do otherwise is not only dishonorable, but also dangerous. If Congress did not wish to execute the terms of the treaty, it should not have agreed to the treaty.
The treaty says that a foreign national has the right to be informed about his right to consular access upon arrest or detention. It does not condition such right by any action by the foreign national. It doesn’t say, “A foreign national has the right to be informed about his right to consular access upon arrest or detention if he first proves to the arresting officer that he is a foreign national.”
That is not what occurred with Garcia. He was not “not allowed” access to consular assistance - he never sought it. The treaty states that he should have been informed he could seek consular assistance, but it was his own status as an unidentified illegal alien that prevented it.
He was not informed and didn’t know he had the right to seek consular assistance.