International Law: Valdez v. State of Oklahoma and the Application of International Law in Oklahoma1

I. Introduction

“This court has before it a unique and serious matter involving novel legal issues and international law.”2 The Oklahoma Court of Criminal Appeals chose these words to describe Valdez v. State of Oklahoma,3 a case in which a Mexican national argued for postconviction relief from the death penalty on the basis of Article 36 of the Vienna Convention on Consular Relations (VCCR),4 to which the United States is a party. Significantly, Valdez made the Oklahoma Court of Criminal Appeals one of the first state courts to address Article 36 since the International Court of Justice (ICJ) decided Germany v. United States of America (LaGrand),5 in which the ICJ interpreted the controversial provision. Briefly stated, Article 36 grants foreign nationals the right to contact their consulate if they are arrested or detained in a foreign country.6 Such notification allows the consulate to provide legal assistance to the foreign national, who may speak another language or be unfamiliar with the foreign nation's legal system. As might be expected, local authorities sometimes fail to comply with Article 36. In the United States, such failures have prompted foreign nationals to file appeals based on what they consider to be a judicially enforceable right created by Article 36. However, U.S. courts have dismissed such appeals on the basis that Article 36 fails to create an individual, [*pg 500] judicially enforceable right.7 Furthermore, procedural default rules often prevent courts from reviewing Article 36 claims because the foreign national fails to raise the issue at the trial level or in prior appeals.8 An obvious “catch- 22” results: foreign nationals cannot raise timely Article 36 claims if they are not notified of their Article 36 rights until