Aralica the Inherent Conflict - Vienna Convention on Consular Relations and United States Domestic Law
| Citation | Vol. 7 No. 1 |
| Publication year | 2003 |
Gonzaga Journal of International Law
Gonzaga University
The Inherent Conflict - Vienna Convention on Consular Relations and United States Domestic Law
Edwin Lee Aralica[1]
Introduction
In 2004, an American is executed in a foreign country. The United States government and its citizens are irate because this particular country did not notify the US Embassy that an American was on trial and executed. Nonetheless, this particular country baldly replies that "we see no need inform you when a US citizen is on trial and executed since you never do the same for other countries."
This trial and execution did not happen to an American in a foreign country. However, this hypothetical is a reality for foreigners in the United States. The International Court of Justice in The Hague declared in April 2004 that the US is in breach of the Vienna Convention on Consular Rights.[2] This treaty "requires the arresting authorities to advise all detained foreign citizens without delay of their right to contact their consulate for assistance."[3]
Citizens entangled in a foreign criminal justice system face unique problems. Language and cultural barriers, along with a lack of understanding of foreign legal systems, can make travelers vulnerable to severe penalties in foreign jurisdictions. Therefore, native consular officers, who have knowledge about local laws, are guides for their country-people.[4]
In order to reduce the problem that foreigners could face when they encounter foreign laws, the United States became a party to the Vienna Convention on Consular Relations in 1969.[5] The United States has an obligation to inform foreign nationals of their right to contact their local embassy in order for consular officials to assist them in their legal problems.[6] Furthermore, if U.S. citizens are arrested abroad, the State Department requires foreign sovereigns to abide by the Vienna Convention.[7] While the United States government is a zealous advocate for its own citizens, the Vienna Convention has come into conflict with American domestic laws.
American law enforcement officers have frequently failed to notify foreign nationals of their rights under the Vienna Convention.[8] The failure to notify foreign nationals of their consular rights is also a failure of due process because the entire judicial process is adversely affected for that particular foreign national.[9] A number of foreign nationals have raised a Vienna Convention claim as an issue in their criminal trial.[10] However, the conflict between domestic law and international law has made these claims unsuccessful so far in the American judicial system.
I. Overview
International law is a network of rules and principles dealing with the conduct of nations and of international affairs.[11] International bodies consist of international organizations, citizens, corporations, and nation-states. Unlike the common law system in the United States, international law has no formal sources of precedent.[12] Therefore, nation-states must consent to international law.[13] Treaties have been the prime source to bind nation-states together in a net of international law.[14] However, the United States has signed very few international treaties that have ramifications affecting the application of domestic law.[15]
The conflict between international law and domestic law is very simply about which law takes precedence.[16] At the international level, the obligations of international law are superior to any rights or duties that the nation-state may have to its domestic law.[17] Nations (or, as they are referred to in international law, States) cannot excuse non-performance of international law because of a conflict with domestic law.[18] Nations must fulfill their obligations to international treaties that they have consented to in accordance with their domestic law.[19]
The actual application of international law in a domestic setting is a little bit more complex.[20] Some countries do not give any precedent to international law.[21] The United States treats domestic law and international law as two separate entities.[22] Furthermore, the application of international law depends on American domestic law.[23] Since the United States is made up of separate sovereign states, the Constitution provides that international law is federal law.[24] As a result, an international treaty such as the Vienna Convention, principally interacts with federal law.[25]
II. Federal Law
A.
Treaties, international law, legislative history, foreign law, and United States law have all recognized that foreign nationals have an individual right to consular notification and access after an arrest in the United States.[26] The Vienna Convention on Consular Relations was signed on April 24, 1963.[27] Until that point, it was customary international law that governed the rights of foreign nationals, and allowed for the right to contact their consulate or embassy.[28] The Vienna Convention formalized these rights and privileges, as well as the duties of consulates.[29] Therefore, the Vienna Convention is the most extensive international agreement on consular communications and relations.[30] The United States ratified the Vienna Convention in 1969.[31]
The Vienna Convention established the basis for the obligations a signature country must follow when a foreign national is arrested in that country.[32] The convention requires that communication from arrested foreign nationals to their consulates be forwarded immediately.[33] Also, the consulate or embassy must be notified upon the arrest of a national in a foreign state.[34] Finally, consular officials must be granted automatic access to visit their citizens in jail and have the right to arrange for their legal representation.[35]
The concept of consular relations is very important to individuals when they are in foreign countries. Consular officials can provide a competent defense counsel to the defendant.[36] They can also provide background information regarding cultural differences; obtain documents; and assist in transporting witnesses.[37] The Vienna Convention also assures governments that their citizens will be treated fairly when traveling abroad, which in turn provides for better foreign relations among countries.[38]
Consular notification is binding on the separate sovereign states in the United States because of the Supremacy Clause of the Constitution.[39] The Supremacy Clause asserts "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding."[40] Since a treaty is supreme law, it supersedes state law.[41]
Moreover, the Supreme Court stated that treaties are contracts by their nature.[42] Further, the United States is not only a member-state of the Vienna Convention, but also participated in the original treaty negotiations.[43] American diplomatic officials never objected to the consular notification requirement in Article 36 of the Vienna Convention.[44] America consented to the Vienna Convention with good faith, including Article 26 which stresses that the treaty "is binding upon the parties to it and must be performed by them in good faith."[45]
The State Department has recognized the importance of enforcing the Vienna Convention and has published numerous publications that guide local law enforcement agencies.[46] Likewise, the State Department argues that harmonization of local, state, federal, and international law in regards to the treatment of foreign nationals will ensure compliance with the Vienna Convention.[47] However, the State Department's publications regarding the Vienna Convention are advisory and, thus, not binding on law enforcement officials in the U.S.[48]
Nonetheless, these American diplomatic publications confirm that the Supremacy Clause makes consular notification and access binding on the states, local law enforcement officials, and the federal government.[49] Additionally, the State Department makes clear that Article 36 obligations of the Vienna Convention must be taken seriously.[50] Consular notification should be customary practice for law enforcement officials in order to safeguard individual freedoms, including a requirement that the foreign nationals be told of their right to request notification and a prohibition on notification unless the foreign national requests it.[51]
In addition, the State Department has on various occasions, since 1969, insisted that other countries comply with the Vienna Convention when a foreign government has detained American citizens.[52] For example, two Americans were detained in the 1970s by the Syrian government.[53] The Syrian officials denied embassy access and communication to the Americans detained in Damascus.[54] The State Department informed the American Ambassador to put the Syrian government on notice regarding its Vienna Convention obligations.[55] Shortly after the embassy reminded the...
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