Fixing Medellín: Ensuring Consular Access Through Compliance
With International Law
History of the Problem
History of the VCCR
The United Nations proposed the VCCR in 1963.5 Now ratified by more than 170 countries, the VCCR regulates the establishment and functions of consulates worldwide.6 Article 36 of the VCCR grants a foreign citizen the right to notify and communicate with his or her country's consulate when arrested, detained, or imprisoned in a foreign country that is also a party to the treaty.7 Article 36 also confers on consulates the right to communicate with, visit, and offer assistance to their detained nationals, including the right to arrange for their legal representation.8 It further requires that local laws and regulations "must enable full effect to be given" to the rights accorded to detained foreigners and their consular representatives.9 These rights are entirely reciprocal in nature.10
To ensure U.S. citizens detained abroad are provided the right to consular access, the U.S. ratified the VCCR without reservation in 1969.11 The understanding prior to the U.S. Supreme Court decision in Medellín was that the treaty's provisions would be entirely self-executing, meaning Congress would not need to pass legislation to implement it, and it would prevail over any conflicting state laws.12 Consequently, both federal and state law enforcement agencies are required to comply with Article 36 when detaining foreign nationals, including advising them of their right to consular notification and access. Despite this requirement, U.S. domestic compliance with Article 36 obligations has long been significantly deficient—even in cases where foreign nationals face capital prosecution—as evidenced by the more than 50 Mexican nationals who were a party to the Avena case.
Also in 1969, the U.S. unconditionally ratified the Optional Protocol to the VCCR concerning the Compulsory Settlement of Disputes.13 Under the Optional Protocol, the U.S. consented to have the ICJ, the principal judicial body of the United Nations, settle any disagreements over the interpretation or application of Article 36.14 Article 59 of the ICJ statute makes the ICJ's decisions binding on the parties to a dispute.15 Additionally, under Article 94 (1) of the United Nation's Charter, each member nation agrees to comply with any ICJ decision to which it is a party.16
The U.S. was the first nation to bring a case under the Optional Protocol, in response to the seizure of U.S. diplomatic and consular personnel in Iran in 1979.17 The ICJ ruled in favor of the U.S., which asserted the binding nature of that judgment, insisting that Iran comply with the decision.18
Avena Litigation
In January 2003, Mexico filed with the ICJ an application instituting proceedings against the U.S. on behalf of a group of 52 Mexican nationals, including Mr. Medellín, who had been sentenced to death without being advised of their consular rights.19 Mexico asked the court to consider whether these Mexican nationals were entitled to a legal remedy for the violation of Article 36.20 The U.S. participated fully in the case.21
During the proceedings, Mexico did not call into question the heinous nature of the crimes or the legitimacy of the death penalty. Rather, Mexico asserted that each of its nationals was entitled to a remedy for the denial of the protections he was entitled under the VCCR.22
On March 31, 2004, the ICJ held, by a vote of fourteen to one, that the U.S. had breached Article 36(1) in the cases of 51 of the 52 Mexican nationals.23 The ICJ declined to vacate the convictions and death sentences of the Mexican nationals, but held that U.S. courts must provide "review and reconsideration" of the convictions and sentences to determine in each case if the Article 36 violation was harmful to the defendant.24 The ICJ held that the remedy of "review and reconsideration" applied to all 51 cases, including those where the VCCR claim would otherwise be procedurally barred because of the defendants' failure to raise the issue at trial.25
Executive, Judicial and Legislative Response to Avena
In 2005, President George W. Bush withdrew the U.S. from the VCCR Optional Protocol, although he recognized the ICJ decision in Avena as binding.26 On February 28, 2005, the President issued a Memorandum to the U.S. Attorney General stating that the U.S. would "discharge its international obligations" under the ICJ's decision "by having State courts give effect to the decision," which required "review and reconsideration" of the decisions to determine if the violation prejudiced the defendant.27
Texas refused to recognize the ICJ's decision or the President's Memorandum as binding law and continued its plans to execute Mr. Medellín.28 The issue went to the Supreme Court in Medellín v. Texas, where Mr. Medellín asserted that he had a judicially enforceable right to review of his case, pursuant to Avena.29 President Bush argued that, while he had authority to enforce the Avena decision, there was no private right of action under the VCCR.30 The Supreme Court ruled that Avena is not directly enforceable in the domestic courts because none of the relevant treaty sources – the VCCR Optional Protocol, the U.N. Charter, or the ICJ Statute – create binding federal law in the absence of implementing legislation by Congress.31 The Supreme Court also held that the President did not have the authority to implement Avena unilaterally.32 The Court unanimously agreed, however, that compliance with Avena is an international legal obligation of the U.S. and that Congress has the authority to implement that obligation.33
Adhering to the VCCR and its Optional Protocol would not affect the ability of states or the federal government to prosecute and subsequently jail or execute foreign nationals. Consular notification and access does not enable foreign nationals who commit crimes to avoid legal consequences. Rather, as the U.S. Department of State acknowledges, "one of the basic functions of a consular officer is to provide a 'cultural bridge' between the host country" and foreign nationals.34 The consul helps "to ensure [a foreign national detained by law enforcement] is aware of his rights, to advise him of the availability of legal counsel, to give him a list of local attorneys, to help him get in touch with his family and friends, to alert him to the legal and penal procedures of the host country, and to observe if he has been or is in danger of being mistreated."35 The solutions outlined below would ensure that not only foreign nationals in U.S. custody but also U.S. citizens and service members traveling abroad would be afforded the full protections of consular access.