A Tale of International Law in the Heartland: Torres and the Role of State Courts in Transnational Legal Conversation

Abstract

The Vienna Convention narrative is a volley, of sorts, between the International Court of Justice (ICJ), the Supreme Court, and lower federal and state courts, with the Oklahoma Court of Criminal Appeals, in the case of Torres v. Oklahoma, lobbing the last, but certainly not the final, shot.

The Vienna Convention on Consular Relations (Vienna Convention) enshrines consular notification rights - the rights of detained foreign nationals who have become wards of a foreign country's criminal justice system to communicate with their home country and request, among other things, legal assistance. In practice, detaining officials in the United States are typically members of state and local law enforcement agencies, and these officials often do not inform foreign national detainees of their Vienna Convention rights. By the time a foreign national raises the Vienna Convention transgression, the criminal prosecution has often progressed to a point where procedural bar rules impede a court's ability to entertain Vienna Convention-related claims and adjudicate the question of prejudice to the foreign national.

Foreign states have become particularly angered when their foreign nationals receive death sentences without being informed of their Vienna Convention rights, spurring a flurry of litigation in the ICJ. In January 2003, Mexico, on behalf of some 50 Mexican nationals on death row in various U.S. states, filed the most recent Vienna Convention-related ICJ case. The ICJ concluded, in a decision known as "Avena," that the U.S., in its arrest, detention, trial and sentencing of Mexican nationals, had violated its Vienna Convention obligations; in order to remedy such transgressions, U.S. courts must "review and reconsider" each of the named Mexican nationals' cases.

Osbaldo Torres was the first Mexican national to face execution in the wake of the Avena decision and thus the first to use Avena to challenge the finality of his death sentence. Despite procedural bar rules, the Oklahoma Court of Criminal Appeals stayed the execution and remanded the case for an evidentiary hearing to determine whether Oklahoma's violation of Torres' Vienna Convention rights had prejudiced the trial and/or sentencing. In an unpublished opinion, Judge Chapel explains why his court - a state court - should defer to the ICJ decision.

This Vienna Convention story has three broader implications for the way that scholars and practitioners conceive of international law and lawmaking: 1) it reminds that the Supreme Court is, at times, a cautious, hesitant participant in an iterative transnational judicial conversation; 2) it illustrates the process-oriented nature of international lawmaking; and 3) it illuminates state courts as important transnational actors.

Keywords: international law, International Court of Justice, Vienna Convention on Consular Relations, Supreme Court, state courts, treaty