Proposed Legislation Seeks VCCR Compliance by the United States

by Duncan Hollis

Those who have followed the cases relating to the Vienna Convention on Consular Relations (VCCR) here in the United States and at the ICJ know that the United States has a compliance problem. The United States does not provide the ‘judicial review and reconsideration’ remedy that the ICJ has indicated is required in the event a violation of an individual’s rights under Article 36 of the VCCR, and the Supreme Court has indicated that the President alone cannot order U.S. states to provide those remedies.  Since 2008, many commentators have suggested that the solution to this problem lies with Congress. Earlier attempts to enact legislation authorizing the necessary procedural steps to put the United States in compliance have fallen short.  Senator Patrick Leahy, however, is ready to try again in light of a pending execution of a Mexican national in Texas (apparently scheduled for July 7), which also seems certain to revive international attention to this issue.

Today, Leahy introduced the Consular Notification Compliance Act (for the text see here), which will give U.S. federal courts jurisdiction to provide the ICJ-dictated remedy. Here’s the quick take from Senator Leahy’s press release:

The Leahy-authored Consular Notification Compliance Act will give jurisdiction to federal courts to review the cases of foreign nationals currently on death row in the United States who did not receive consular access as required by the VCCR. It includes those individuals covered by a 2004 decision by the International Court of Justice, which held that the U.S. must review the convictions and death sentences of more than 50 Mexican nationals who had not been notified of their right to consular access. The legislation would also clarify for future cases that courts must ensure that all foreign nationals charged with a capital offense are informed of their right to contact their consulate. More than 100 foreign nationals from more than 30 countries are currently on death row in the United States.

And here’s what Senator Leahy had to say in longer remarks introducing his bill:

Each year, thousands of Americans are arrested and imprisoned when they are in foreign countries studying, working, serving the military, or traveling. From the moment they are detained, their safety and well-being depends, often entirely, on the ability of United States consular officials to meet with them, monitor their treatment, help them obtain legal assistance, and connect them to family back home. That access is protected by the consular notification provisions of the VCCR, but it only functions effectively if every country meets its obligations under the treaty – including the United States.

Unfortunately, in some instances, the United States has not been meeting those obligations. There are currently more than 100 foreign nationals on death row in the United States, most of whom were never told of their right to contact their consulate and their consulate was never notified of their arrest, trial, conviction, or sentence. There are many other foreigners in U.S. prisons awaiting trial for non-capital crimes, some facing life sentences, who were similarly denied consular access. This failure to comply with our treaty obligations undercuts our ability to protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law. It would also be completely unacceptable to us if our citizens were treated in this manner.

The Consular Notification Compliance Act seeks to bring the United States one step closer to compliance with the convention. It is not perfect. It focuses only on the most serious cases – those involving the death penalty – but it is a significant step in the right direction and we need to work together to pass it quickly. Texas is posed to execute the next foreign national affected by this failure to comply with the treaty on July 7, 2011. He was not notified of his right to consular assistance, and the Government of Mexico has expressed grave concerns about the case. We do not want this execution to be interpreted as a sign that the United States does not take its treaty obligations seriously. That message puts American lives at risk.

The Government of Great Britain has expressed similar concerns about a case involving a British citizen facing the death penalty here, who was denied consular access.

The bill I am introducing would allow foreign nationals who have been convicted and sentenced to death to ask a court to review their cases and determine if the failure to provide consular notification led to an unfair conviction or sentence.

The bill also recognizes that law enforcement and the courts must do a better job in the future to promptly notify individuals of their right to consular assistance so the United States does not find itself in this precarious position again. To that end, the bill reaffirms that the obligations under the treaty are Federal law and apply to all foreign nationals arrested or detained in the United States. For individuals arrested on charges that carry a possible punishment of death, the bill ensures adequate opportunity for consular assistance before a trial begins. . . . .

I saw the need to resolve this issue first-hand this spring when a young, innocent Vermont college student was detained by Syrian police simply for taking photos of a demonstration. I worked hard with the U.S. consulate in Syria to obtain access to him. His safety depended on the ability of our consular officers to see him, provide assistance, and monitor his condition.

Similarly, the United States invoked the VCCR to seek access to the three American hikers detained in Iran after accidently crossing an unmarked boarder in 2009. In 2001, when a U.S. Navy surveillance plane made an emergency landing in Chinese territory, the State Department cited the VCCR in demanding immediate access to the plane’s crew. . . .

This bill has the support of the Obama administration, including the Department of Justice, the Department of Defense, the Department of Homeland Security, and the Department of State. I have heard from retired members of the military urging passage of the bill to protect servicemen and women and their families overseas, and from former diplomats of both political parties who know that compliance with our treaty obligations is critical for America’s national security and commercial interests. I ask unanimous consent to include those letters in the Record, as well as a recent public letter signed by retired judges and prosecutors from around the country urging the Governor of Texas to delay the upcoming execution to allow Congress time to act.

In short, it sure looks like the consular stuff is coming back (especially with a July 7, 2011 execution date).  As a result, Leahy’s bill and the potential for a new round of executions will bear watching.

http://opiniojuris.org/2011/06/14/proposed-legislation-seeks-vccr-compliance-by-the-united-states/

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