Bellinger on Avena Implementing Legislation

by Peggy McGuinness

Almost three years have passed since the Supreme Court’s decision in Medellin v. Texas. The only remaining avenue to overturn Medellin and make the ICJ’s decision in Avena (holding that the US violated its obligations under the Consular Convention and ordering review of the cases) binding as domestic law — a federal statute — has not been passed.  Former State Department Legal Advisor John Bellinger has again made the case for Congress to pass an implementing statute in this op-ed in the Washington Post last week. Bellinger lays out the politics of getting a law passed to review the death row convictions at issue in Avena:

In contrast to the Bush administration, the Obama administration has made less visible efforts to comply with the World Court rulings. The White House has not asked Congress for legislation authorizing the president to order a review of the convictions of the remaining Mexican nationals, presumably because it is not popular to side with an international tribunal in favor of a group of convicted murderers. The next execution is scheduled for July.

Although Republicans might not be eager to cooperate with President Obama, legislators should craft a narrow law authorizing the president to comply with the World Court ruling. Even if they are skeptical of vague principles of international law, House Republicans should recognize that U.S. compliance with the Vienna Convention is vital. Members of Congress condemn other countries that fail to comply with their treaty obligations to the United States in cases of consular access and diplomatic immunity. But lawmakers cannot expect other countries to comply with their treaty obligations to us unless the United States observes its treaty obligations to them. Congress and the president must ensure that the United States observes the Vienna Convention not as a favor to foreigners but because it serves a “plainly compelling” national interest in protecting Americans who travel and American companies that operate in foreign countries.

To me this should be an easy call for Republicans and Democrats alike: an effective foreign policy requires the protection of the Consular Convention (not to mention the Diplomatic Convention — see, e.g., the Davis case in Pakistan.)  The recent evacuations of American citizens from Egypt and Libya demonstrate the importance of our consular presence oversees and the protection our consular work receives under international law.  We should be doing everything we can to ensure that we comply with the Convention as a way to underscore our commitment to consular protection.  But I don’t sense a whole lot of momentum here.  Do our readers have any additional insights into the current state of play?

One Response

  1. Without passing judgment I suspect that for some relevant actors the sentence might more accurately read:
    The recent evacuations of American citizens from Egypt and Libya demonstrate the irrelevance of the protection our consular work receives under international law.

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