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Why is the UK involved in a Texas death case?
Mon Aug 31, 2009 16:44

Why is the UK involved in a Texas death case?
1:59 PM Mon, Aug 31, 2009 | Permalink | Yahoo! Buzz
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The following is a guest blog post by Hugh Southey, an English Barrister who has worked on Texan death penalty cases. He can be reached by email.

The United Kingdom recently took the relatively unusual step of filing an Amicus brief in the 5th circuit in the case of Linda Carty, a United Kingdom national presently detained on death row in Texas. Ms Carty has also received support from a United Kingdom charity, Reprieve. Those interventions follow similar interventions by other foreign governments in cases concerning their nationals.
Why do foreign governments and charities feel able to intervene in Texas death penalty cases? It is not for me to speak for governments. However, I would suggest that there is an important and principled reason why foreign governments have a legitimate role to play.

International travel is now a core aspect of modern life. Every day thousands of foreign nationals enter Texas lawfully to engage in business or enjoy a holiday. Similar numbers of Texans travel overseas. That travel benefits us all. The Texan economy (as well as all other economies) would suffer without travel.
Travel is inevitably undermined if states fail to adopt minimum standards for the treatment of people within their jurisdiction. To give an obvious example, very few people wish to travel to Somalia because the absence of the rule of law leaves all people at risk of ill-treatment. Less obviously many United Kingdom nationals now have concerns about travel to Thailand following reports of arrests at Bangkok airport as a way of extorting bribes.

The concerns about minimum standards have caused states (including the United States) to sign up to the Vienna Convention on Consular Relations. Among other things, this enables states to visit their nationals who are detained overseas and make representations on their behalf. There are recent examples of cases where I have little doubt that the American authorities will have sought to intervene on behalf of their nationals. For example, the American authorities will have wished to intervene on behalf of John Yettaw, the American imprisoned for seeking to swim to Aung San Suu Kyi. However, it is not only high profile cases that matter. The cases of American nationals arrested for more routine matters are as important. They are entitled to fair trials and proper treatment.

The Vienna Convention is not the only example of an international agreement intended to ensure minimum standards. In some respects agreements such as the United Nations Torture Convention and the American Declaration on the Rights and Duties of Man are more important. That is because they commit states to adopt minimum standards in the treatment of detainees. For example, it is now very clear that the use of torture is prohibited as a matter of international law.

The legal system described above is undoubtedly important from an American and a Texan point of view. It allows travellers to go overseas knowing that the American government can and will intervene if they are subjected to ill-treatment. However, that legal system cannot operate as a one way street. It means that American must expect foreign governments to intervene on beheld of their nationals. If foreign governments are unable to intervene, American nationals can expect to be denied protection when they travel.

The reason why the death penalty is the particular focus of the interventions is that there are real issues about the compatibility of the death penalty with international law. International law may have reached the stage where the use of the death penalty is as unacceptable as torture. In addition, even if the death penalty is compatible the restrictions upon its use that are imposed as a matter of international law mean that in practice its use may well violate international law. Violations of international law have been found in American death penalty cases by both the International Court of Justice and the Inter-American Commission on Human Rights. That means that foreign governments are likely to have grounds for intervention in death penalty cases. They are likely to be able to argue that accepted standards have not been met.

In light of the system of international law described above, it appears to me that Texas must respect and accept interventions by foreign governments. If it does not Texans will be denied support when they travel. That will ultimately undermine travel.

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