John Bellinger Gets it Right on Consular Convention Implementing Legislation

John Bellinger, who served as the Bush administration Legal Advisor to the State Department (in which capacity he famously guest blogged at Opinio Juris!), has an op-ed in today’s last Saturday’s NY Times calling for legislation to override the Supreme Court’s decision in Medellin v. Texas and to give effect to the ICJ’s 2003 decision in Avena. The legislation would overcome any state procedural bar rules to permit review of the convictions of the 51 Mexican nationals at issue in Avena who were denied their consular notification rights in violation of the Consular Convention.  As Bellinger notes, until such review takes place, the U.S. remains in non-compliance with the ICJ decision and the UN Charter.  Moreover, the Supreme Court indicated in Medellin v. Texas that legislation, not to assertion of executive powers, is the only path to compliance with Avena — short of the individual states independently choosing to comply (an option rendered impossible following Texas’ execution of Jose Medellin last August).

Bellinger rightly emphasizes the reciprocal nature of the Consular Convention and the protections it affords to Americans overseas, and notes that although the Obama administration has embraced the idea of enforcing  international legal obligations it still faces a dilemma on this issue:

President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty.

The Obama administration’s best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter.

From closing Guantánamo to engaging with the International Criminal Court to seeking Senate approval of the Law of the Sea Convention, President Obama is confronting the recurring tension between our international interests and domestic politics. But reviewing the Mexican cases as the international court demands is not insincere global theater. On the contrary, complying with the Vienna Convention is legally required and smart foreign policy. It protects Americans abroad and confirms this country’s commitment to international law.

A statute aimed more broadly at Consular Convention compliance was proposed during the last congressional term but languished in the shadow of the presidential campaign and a lame-duck administration (see the proposed bill here.)  Whether the statute is more narrowly tailored as Bellinger suggests, or sweeps more broadly to preempt state procedural rules to achieve compliance with the Convention going forward, Bellinger is right that this should be a priority for the Obama State Department and Congress.