Protecting U.s. Citizens Abroad and Bringing the United States Into Compliance With the Vienna Convention Post-medellin

• Publication year: 2018

PROTECTING U.S. CITIZENS ABROAD AND BRINGING THE UNITED STATES INTO COMPLIANCE WITH THE VIENNA CONVENTION POST-MEDELLIN

Margaret Anne Christie^*

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Table of Contents

I. Introduction...............................................................................448

II. The Historical Development of Consular Relations........449

A. Brief History and Overview of Consular Relations Law..........449
B. General Provisions of the Vienna Convention on Consular Relations...................................................................................451
C. The Vienna Convention and the International Court of Justice.......................................................................................453

III. History of the Vienna Convention in the United States............................................................................................454

A. United States' Ratification of the Vienna Convention..............454
B. The Application of the Vienna Convention in the United States........................................................................................455
C. The Supreme Court and the Vienna Convention......................458

IV. Past Proposals............................................................................464

A. Failed Attempts at Legislative Reform.....................................464
B. Various Proposals for Compliance..........................................470
C. Individual U.S. States' Attempts at Compliance......................472

V. A Workable Solution................................................................474

VI. Conclusion...................................................................................478

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I. Introduction

The United States leads the world in making treaties and in publicly holding other countries accountable when they fail to fully comply with treaty obligations.¹ Nonetheless, the United States sometimes fails to satisfy its obligations under binding international agreements. Due to the actions of numerous states, the United States is in violation of its treaty obligations under Article 36 of the Vienna Convention on Consular Relations (Vienna Convention).² Article 36 of the Vienna Convention governs the "communications and contact with nationals of the sending State" requiring the country who has incarcerated a non-citizen to notify the non-citizen's consulate "without delay."³ Many states in the United States fail to notify a non-citizen's consulate after incarceration, and post Medellin,⁴ the United States has been unable to rectify this failure in instances where foreign nationals may have procedurally defaulted on their claims. Multiple nations are disgusted with the manner in which the United States has handled the situation. For example, Mexico has written to several U.S. representatives in Congress and reprimanded the United States' behavior at international forums.⁵

The primary concern with the United States' failure to comply with the Vienna Convention is the treatment that incarcerated U.S. citizens are receiving abroad. After the Supreme Court's ruling in Medellin I, there have been numerous instances and high profile stories of Americans imprisoned or arrested in foreign nations.⁶ If the United States is not honoring foreign

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visitors' rights to contact their consulates after they have been arrested or detained, why should other countries offer U.S. citizens the same rights? The truth is that often those countries do not offer U.S. citizens such rights.⁷

As U.S. citizens increase their travel abroad, providing assistance and protection to Americans should be a top priority for the U.S. government.⁸ But nothing has yet been done to ensure every state in the United States is required to honor the nation's obligations under the Vienna Convention. It is the position of this Note that the only way the United States can begin to patch its relations with other nations and protect U.S. citizens travelling abroad is through sufficient legislation passed by Congress ensuring that all fifty states comply with Article 36 of the Vienna Convention. First, this Note will discuss the historical development of consular relations and effects of the Vienna Convention on Consular Relations in the United States. Next, it will address why past proposed legislation and other proposed solutions to fix America's non-compliance with the Vienna Convention have failed. Finally, this Note will analyze the past proposed legislation and suggest legislation for the U.S. Congress to implement, or state legislation in the alternative, in order to remedy this very serious problem.

II. The Historical Development of Consular Relations

A. Brief History and Overview of Consular Relations Law

Consular relations have existed between sovereign states for centuries, even dating back to ancient Greece.⁹ The scope of the duties of the Greek counterparts to consuls were quite different, but they were nevertheless "responsible for representing the interests of their nationals."¹⁰ Yet, the word

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consul did not come into existence "until the time of the Romans."¹¹ The term originally signified "chief magistrates appointed in southern European cities," but by the eleventh century, the definition had extended to magistrates sent to foreign cities as well.¹² The growth of trade between nations promoted the development of the consular system.¹³ Nations began sending their own consulates to other nations in order "to supervise their commerce, protect national interests, and adjudicate disputes between merchants."¹⁴ This increase in consular relations promoted trade, but when centralized state authority began asserting direct control over the relations, "confusion over the exact status" of the consulate officials ensued.¹⁵ The lack of clear guidance prompted many nations to create treaties on the matter.¹⁶ Therefore, by the middle of the twentieth century, the rules governing consular relations derived from bilateral treaties and the customary international law that developed from such agreements.¹⁷

The United States has recognized the importance of providing protection to nationals abroad though consulates for the past two-hundred years.¹⁸ But it was not until the mid-1950s that the entire international community identified "the need to codify the existing rules and practices governing consular relations."¹⁹ Accordingly, the General Assembly of the United Nations (U.N.) tasked the International Law Commission with drafting a multilateral convention that would bring more uniformity to the laws governing consular relations.²⁰ The International Law Commission eventually adopted the Draft Articles on Consular Relations on July 7, 1961.²¹ Subsequently, the Conference on Consular Relations met in Vienna, Austria from March 4 until April 22, 1963 to prepare an international agreement on consular relations.²² There were over ninety countries and several international organizations in attendance, and on April 24 of 1963,

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the Conference adopted the final text of the Vienna Convention and the Optional Protocol Concerning Compulsory Settlement of Disputes.²³ However, the Vienna Convention did not enter into force until March 19, 1967.²⁴ Currently, this multilateral treaty has over 170 parties to it²⁵ and is considered by most scholars and countries to be a codification of customary international law, which all nations, not only the Parties to the treaty, need to follow.²⁶

B. General Provisions of the Vienna Convention on Consular Relations

As iterated above, the Vienna Convention marked the first international attempt to systemize existing consular practices in international law. The preamble of the Vienna Convention recognizes the historical significance of consular practices, stating that the Parties have agreed to the treaty, while "[r]ecalling that consular relations have been established between peoples since ancient times . . . [and] [b]elieving that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations. . . ."²⁷ The articles of the Vienna Convention also codify many of the consular functions nations historically assumed. For instance, Article 5 describes the basic functions of the consulate. Generally, consular functions encompass "protecting and facilitating the interests of a State and its nationals in the territory of another State."²⁸ The provisions of Article 5 were noncontroversial when adopted and continue to be relevant in international relations today.²⁹

On the other hand, the provisions of Article are at the center of international debate. Titled "Communication and contact with nationals of the sending State," Article 36 reads:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same

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freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of

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