Recommendations for Fixing Medellín: Ensuring Consular Access Through Compliance With International Law
Rejoining the VCCR's Optional Protocol
Withdrawal from the Optional Protocol Harms U.S. Citizens
In 2005, President Bush withdrew from the VCCR's Optional Protocol concerning the Compulsory Settlement of Disputes.36 The aim was to prevent future ICJ decisions against the U.S. similar to Avena. Unfortunately, because rights and obligations under the Optional Protocol are entirely reciprocal, the decision to withdraw also stripped U.S. citizens abroad of a binding enforcement mechanism for their right to access their consulate when detained or arrested outside of the U.S.
The U.S. Should Rejoin the Optional Protocol
The House and Senate Judiciary and Foreign Relations Committees should examine the impact of our withdrawal from the Optional Protocol on U.S. citizens living, working, and traveling abroad. As part of their fact-finding responsibilities, these committees and their relevant subcommittees should hold hearings to determine the effects of withdrawal from the Optional Protocol.
The committees should be particularly concerned with the impact on U.S. military personnel abroad. The risks for detained American personnel if consular access is withheld are both real and widespread. In 1998, host country governments processed 5,092 cases against U.S. military personnel.37 Maintaining access to consular support is indispensable for the protection of American service members facing incarceration by foreign authorities. Congressional hearings to determine the extent to which loss of the Optional Protocol's enforcement mechanism affects military personnel and other U.S. citizens are crucial to drawing attention to the issue and demonstrating the widespread support for rejoining the Optional Protocol.
The President should rejoin the Optional Protocol, reversing the 2005 withdrawal by the Bush Administration in response to the Avena decision. The success and usefulness of multilateral and bilateral treaties depend upon a shared trust that each nation will honor its obligations and resolve disputes in a fair manner and in accordance with the treaty's terms. In 1979, the U.S. was the first country to invoke the Protocol before the ICJ, suing Iran for taking 52 U.S. diplomats and consular personnel hostage in Tehran.38 The ICJ ruled in favor of the U.S., which subsequently asserted the binding nature of that judgment and insisted that Iran comply with the decision.39 U.S. withdrawal from the Protocol as the result of an adverse decision by the ICJ weakens the VCCR's effectiveness by subverting the ICJ's role as arbiter of VCCR-related disputes between nations.
Moreover, withdrawing from the Optional Protocol after the Avena decision sends the wrong signal to other nations. It suggests that the U.S. will only honor the rule of law embodied by the Optional Protocol so long as ICJ decisions favor the U.S. The President can undo this damage by rejoining the Optional Protocol.
Addressing the Legacy of Avena and Medellín
The U.S. is Not Honoring Its Treaty Obligations
In the nearly seven years since the Avena decision, the U.S. has failed to comply with the ICJ ruling. All three branches of the federal government, along with state governments, have failed to take the measures necessary to honor the decision or the U.S.'s obligations under the VCCR and the Optional Protocol. As a result, the U.S. no longer recognizes the mechanism for the enforcement of foreign nationals' right to receive access to their consulate when detained, and can no longer expect its citizens to receive reciprocal protections abroad.
The U.S. Should Implement Avena
Congress should pass legislation to provide judicial remedies for foreign nationals who have been denied their right to consular access pursuant to the VCCR. Such legislation would directly address the Supreme Court's holding in Medellín that the VCCR is not self-executing by creating binding federal law that provides remedies for foreign nationals denied consular access.
Federal legislation addressing the Medellín decision must give federal courts jurisdiction to review the merits of claimed violations of the VCCR and to provide appropriate relief, including overturning convictions, ordering new trials or sentencing proceedings, and providing other declaratory or equitable relief necessary to secure the foreign national's rights. Such legislation must also permit federal court review in cases where the petitioner filed a habeas corpus petition under chapter 153 of title 28 before enactment of the proposed legislation, though they would otherwise be procedurally barred from raising the claim. This will ensure that foreign nationals previously denied review of their claims under the Medellín decision will have an opportunity to assert their rights under the VCCR.
The President should encourage Congress to pass legislation implementing the Avena judgment and commit to signing such legislation once it passes. Demonstrating leadership on this issue will signal to the international community that the Administration is committed to meeting the U.S.'s treaty obligations. As Secretary of State Madeleine Albright wrote in 1998, "[W]e must be prepared to accord other countries the same scrupulous observance of consular notification requirements that we expect them to accord the U.S. and its citizens aboard."40
The President should also direct executive agencies to provide adequate training to federal law enforcement agents regarding their obligations under the VCCR to make foreign nationals aware of their right to consular notification and access. Finally, the Administration should provide guidance and support for similar training for state and local law enforcement agents, whether through technical training or grants.
Once federal law permits foreign nationals to pursue remedies for denial of their right to consular access pursuant to the VCCR and the Avena decision, federal courts should rigorously enforce these provisions to ensure that they are given full effect. In so doing, federal courts will encourage federal and state law enforcement to honor the VCCR's consular notification requirements, thereby protecting the rights of foreign nationals and preventing the need for federal courts to overturn convictions or sentences.