The Vienna Convention on Consular Relations: persuasive force or binding law?

• Author: Weiland, Sandra J.

1. INTRODUCTION

The Vienna Convention on Consular Relations ("Vienna Convention") sets forth signatory nations' obligations to detained foreign nationals. (1) The United) States adopted the Vienna Convention and Optional Protocol in 1963 and ratified in 1969. (2) Article 36 requires that detained foreign nationals be informed--"without delay"--of their right to confer, communicate, and seek representation by their consulate throughout their detention. (3)

Although the United States considers treaties as part of the "law of the land," (4) its record in enforcing and complying with obligations set forth in the Vienna Convention is inconsistent. The United States demands enforcement of diplomatic and consular rights abroad, yet the International Court of Justice (ICJ) recently found the United States in breach (for the third time) of the Vienna Convention. (5) Because of enhanced threats to U.S. citizens both abroad and at home, it is more important than ever to have a consistent policy of enforcement and reciprocity among nations.

After the ICJ's 2004 decision in Avena and Other Mexican Nationals, (6) President Bush ordered state courts to give "meaningful review" to convicted Mexican inmates who were not notified of their Vienna Convention rights. (7) In a recent brief submitted to the Supreme Court, the U.S. Solicitor General stated, "Compliance serves to protect the interests of United States citizens abroad, promotes the effective conduct of foreign relations, and underscores the United States' commitment in the international community to the rule of law." (8) Shortly afterward, however, President Bush withdrew from the Optional Protocol that gives the ICJ jurisdiction to hear cases, like Avena, arising under the Vienna Convention. (9)

The Vienna Convention expresses the international law rule of pacta sunt servanda (once you enter an agreement in good faith you must aide by it), and the United States' lack of enforcement of the rights and obligations under the Vienna Convention has generated ill will in the international community. (10) In this time of increasing threats to United States citizens abroad and at home, the United States should synthesize the Vienna Convention into its domestic law and demand compliance from state and federal agencies. The United States' systematic Vienna Convention violations undermine the integrity and accountability of the United States internationally and demand redress within our court systems domestically.

Part II of this paper examines the issue of foreigners awaiting the death penalty in the United States. Part III examines the rights and obligations created under the Vienna Convention for foreigners. Part IV studies the evolution of the legitimacy and enforcement of the Vienna Convention by examining the Breard (11) and LaGrand (12) cases. Part V examines the Torres (13) case and the ICJ's Avena and Other Mexican Nationals (Mexico v. United States of America) decision. Part VI examines the current status of conflicting jurisprudence in the Fifth Circuit's recent Medellin (14) decision in which the United States Supreme Court recently granted certiorari. Part VII concludes the paper.

2. FOREIGN NATIONALS & CAPITAL PUNISHMENT IN THE UNITED STATES

   The United States reinstated capital punishment of foreign nationals in 1976. (15) As of February 15, 2005, 119 foreign nationals await the death penalty. (16) Most foreign nationals on death row were not notified of their rights to confer with their consuls and did not learn of their rights until after years of detainment and long after exhausting most of their appeals. (17)

   Currently, 118 countries have abolished the death penalty and 15 more retain it only for crimes against humanity and war-time crimes. (18) Four nations--the United States, China, Iran, and Viet Nam--carry out 84 percent of all executions. (19) For purposes of the following list, dual--citizenship cases are not listed because, according to the United States State Department, individuals who hold both United States citizenship as well as another nationality are not entitled to rights under the Vienna Convention. (20)

   Foreign Nationals under Sentence of Death in the United States: By Foreign Nationality (21)

   Further, foreign nationals face capital punishment in the following states (number of nationals in each state in parenthesis): California (43), Texas (27), Florida (21), Arizona (5), Ohio (4), Oklahoma (1), Nevada (4), Pennsylvania (2), Louisiana (3), Virginia (1), Oregon (1), Montana (1), Georgia (1), Mississippi (1), Alabama (1), Nebraska (1), and Federal (2). (22)

3. THE VIENNA CONVENTION: RIGHTS AND OBLIGATIONS

   The United States must notify detained foreign nationals "without delay" of their fights to confer with their consular officials. (23) Article 36(1)(b) of the Vienna Convention is two-fold: (1) to notify "without delay" the detained foreigner of his right to confer with his consulate; and (2) to allow communication between the detained foreign national and his consulate. (24) This requirement gives people traveling and living abroad the fight to contact their consulates and seek assistance when accused of a crime.

   The Vienna Convention codified international customary law on consular "relations, privileges and immunities." (25) The United States ratified the Vienna Convention treaty without reservations in 1969 and agreed to the jurisdiction of the ICJ, which hears disputes between nations. (26) In March 2005, however, President Bush withdrew the United States from the Optional Protocol that gives the ICJ jurisdiction to hear disputes arising under the Vienna Convention. (27)

   Ironically, the United States has been a leader in advancing the legitimacy and binding effect of ICJ judgments. (28) In 1979, when Iran held American hostages at the United States Embassy in Iran, the United States immediately went to the ICJ and demanded a judgment that Iran had violated international law. (29)

   Under the Supremacy Clause of the United States Constitution, the Vienna Convention binds all states. (30) Scholars debate whether the United States has obligated itself to international treaties as binding on state's judicial and criminal procedures. (31) And, even officials aware of the Vienna Convention do not always adhere to it. Gene Acuna, spokesmen for Texas Governor Rick Perry, stated: "According to our reading of the law and the treaty, there is no authority for the federal government or this World Court to prohibit Texas from exercising the laws passed by our legislature." (32)

4. CASE STUDIES

   1. Breard v. Greene (33)

      In 1992, the Commonwealth of Virginia arrested Angel Francisco Breard, a dual citizen of Paraguay and Argentina, for rape and murder. (34) At trial, the State presented "overwhelming evidence of guilt, including semen found on the victim's body matching Breard's DNA profile and hairs on the victim's body identical in all microscopic characteristics to hair samples taken from Breard." (35) Breard refused counsel and confessed to killing the victim, but explained that he did so only because his father-in-law placed a satanic curse on him. (36) A jury convicted Breard and then sentenced him to death. (37) The Virginia Supreme Court affirmed. (38) The United States Supreme Court denied certiorari. (39)

      Only after Breard exhausted all of his state court proceedings did he learn that Virginia officials violated his rights under the Vienna Convention, and he then brought a habeas corpus petition in federal district court. (40) The court denied his petition, however, because of the "procedural default" rule: Breard had not raised the issue in previous state court proceedings. (41) The court also found that Breard did not show he suffered prejudice as a result of this procedural default. (42) The Fourth Circuit affirmed. (43) Notably, in a concurring opinion, a Fourth Circuit judge stated: "United States citizens are scattered about the world.... Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example." (44)

      After Breard's conviction became final, Paraguay sued in the ICJ, stating that the United States had...