Medellin v. Dretke: International Law Often Happens Despite Judicial Decision

by Janet K Levit

I would like to embellish a bit upon yesterday’s post in light of Texas’ Medellin decision. In terms of the integrity and viability of consular notification rights – in terms of enforcement of Article 36 of the Vienna Convention, to what extent does it matter what the Texas court decides in Medellin (or what the Supreme Court has decided in Sanchez-Llamas or might decide in Medellin in the future)?

The international law of consular notification rights is an evolving story, with the drafting and ratification of the Vienna Convention (and Optional Protocol) merely the first chapter, followed by a series of ICJ cases which not only interpreted Article 36 rights and obligations but also publicized the disjuncture between treaty obligations and on-the-ground practice, and now unfolding in various domestic cases which are grappling with the complexities of honoring Vienna Convention rights in a diffuse federal system. This process unleashed irrepressible forces, triggering transnational dialogue and energizing multiple transnational actors in state and local government, as well as in the private sector, in ways that transcend the outcome of any particular case. The results of this transnational legal process are at once tangible, in the form of rules, regulations and protocols, and intangible, in molding legal consciousness. Consider the following brief (and not comprehensive) perusal of some of these initiatives.

At the national level, the State Department’s Consular Notification and Outreach Division deploys staff to interface with law enforcement officials throughout the country and disseminates (virtually and in hard copy): flow charts that essentially map the Vienna Convention requirements; model procedures and protocols that local law enforcement agencies can adopt; a Consular Notification and Access Reference Card that provides a Miranda-esque script that law enforcement officials can use upon detaining a foreign national; translation of a consular notification script into thirteen languages; phone numbers and addresses for consulates throughout the U.S.; and training videos. Some of these State Department documents have been incorporated essentially verbatim in state and local law, policies and programs.

At the sub-national level, California incorporated Article 36 into its penal code; other state law enforcement agencies and attorney generals’ offices (most prominently, and somewhat ironically, the Texas Attorney General’s office) attempt to systematize law enforcement procedures in an effort to make Vienna Convention compliance pervasive and routine. Likewise, local police department operating procedures incorporate Vienna Convention obligations, often creating roadmaps and consular notification forms that functionally translate treaty requirements, stated in diplomatic legal ease, into on-the-ground practice.

Non-state actors are also part of such Vienna Convention processes. For instance, the ABA’s Guidelines for Defense Counsel in Death Penalty Cases deploy appointed counsel to protect Vienna Convention rights. The Pegasus Research Foundation answered (in part) Congress’ post-9/11 call to enhance local law enforcement agencies’ ability to “talk to each other” by creating a local-to-local data communications network; one peripheral effect of this local-to-local network is electronic consular notification functionality, thereby offering local law enforcement agencies who subscribe the electronic capability to fulfill Vienna Convention obligations.

I recognize that my opening question – the effect of high profile court decisions on day-to-day Vienna Convention compliance – is a narrow one. Admittedly, in Medellin, there are larger principles – federalism, executive power, and the relationship between national and supra-national legal systems – at stake that transcend the specific Vienna Convention questions. And I recognize that my rosy portrait of Vienna-Convention-related on-the-ground practices is little solace to the 50-some Avena defendants who are on death row, perhaps in part because they did not have consular assistance. Yet, to focus on top-down decisions and decision-making without looking at what is transpiring on the ground-level is to paint a woefully incomplete picture and, perhaps, to skew our scholarly and advocacy efforts.

2 Responses

  1. That’s a great point, Janet. But I’m not sure how far you want to go with this analysis. Certainly, the U.S. makes pretty much this same argument about its VCCR compliance efforts to demonstrate that it is in fact complying with the treaty. But I assume that its failure to comply with judicial decisions still matters to you? If so, how should scholars and advocates rank judicial advocacy vs. the type of norm advocacy you seem to be suggesting in your post?

  2. Julian, you ask the critical question — one, admittedly, that I must grapple with in a more rigorous way. You are certainly correct that courts’ willingness to comply with Avena matters to me because I care deeply about the standing of international law in our federal system. However, the question that I posed in my post was, by design, a narrow one — to what extent do post-Avena judicial decisions impact overall compliance with the VCCR? While it is impossible to quantify, my sense is that the litigation process — starting with Breard and now resting with Texas’ decision in Medellin, heightened awareness and triggered responses that will importantly anchor compliance with the VCCR in the future. In Texas, for example, where the courts have been hostile to VCCR arguments, administrative and executive efforts to systematize VCCR compliance have been, at least according to some, quite successful, primarily through charging local magistrates, who usually interface with a detainiee “without delay,” with ultimate responsibility for VCCR compliance.

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