Beyond the Veil of Federalism: Protecting the Consular Rights of Foreign Nationals in United States Courts by Adisada Dudic

I. Introduction

The United State of America must comply with the decisions of the International Court of Justice (ICJ).  This obligation comes from Article 94 of the United Nations Charter, ratified in 1945.[1] In Medellín v. Texas, the US Supreme Court said that the Supremacy Clause of the US Constitution does not require Texas to follow or enforce an ICJ decision.[2] This decision not only threatens American nationals travelling abroad, but it also threatens to deprive US nationals, individuals and businesses alike, of workable dispute resolution procedures that treaties provide.  Such a result is unacceptable and unsound policy in the modern world where the scope of commerce and trade is increasingly international.

II. Vienna Convention on Consular Relations (VCCR)

The VCCR protects the rights of individuals arrested, detained, or imprisoned in foreign nations and grants them the right to access their own consulate.[3] Under Article 36, member states have an obligation to inform detained or arrested foreign nationals of their consular notification rights and the arresting authorities must notify the appropriate consulate of such arrests.[4] The US, upon advice and consent of the Senate,[5] ratified the VCCR without reservation in 1969, understanding its provisions to be entirely self-executing and prevailing over any conflicting state laws.[6] The US also ratified the VCCR’s Optional Protocol Concerning the Compulsory Settlement of Disputes[7]providing that disagreements over the interpretation or application of Article 36 fall under the compulsory jurisdiction of the ICJ.[8] However, the US consistently  fails to comply with the VCCR, even in the most extreme cases where foreign nationals are facing the death penalty.   It gave notice of its withdrawal from the Optional Protocol in 2005.[9]

III. Policy Concerns

The US federalism concerns have historically conflicted with its international obligations.[10] Considering violations of the VCCR, the courts must balance the States’ interest in preserving their established rules, the foreign defendant’s interests in having access to appropriate foreign consulate, and the US interest in maintaining good foreign relations and respect for international law.[11] Hiding behind a veil of federalism to escape international obligations leads to an imbalance in mutuality and reciprocity deeply rooted in international law.  Since over 2,500 American citizens are arrested abroad each year, such noncompliance may have a severe impact on their treatment abroad.[12] The US economy is closely related to foreign nationals traveling within the US and US nationals traveling abroad.  Further, Medellín sends a strong message to the international community that the US cannot be trusted in trading partnerships.[13]

IV. Federalism Abroad

Similar to the US, Australia has recently adopted certain reforms giving its states a greater role in the treaty process.[14] However, Australia focuses on state advice at its core, as opposed to federalism reservations of the US, creating a balance between state interests and international obligations that sacrifices neither.[15] In the German model of “cooperative” federalism, federal and state governments work together to make “one complete system of courts, legislature, and administrative agencies.”[16] The US “competitive” model, however, has the federal and state governments each “complete” in their own regard with separate legislatures, court systems, and administrative agencies.[17] However, the Canadian model seems to “subordinate international concerns to domestic separation of legislative competence” and is often criticized.[18]

V. Conclusion

The US must rejoin the VCCR Optional Protocol.  Signatory to approximately seventy treaties requiring submission of disputes to the ICJ,[19] the US continues to be significantly concerned with international adjudication.[20] Its citizens and businesses depend on free trade.[21] The “war on terrorism” requires the cooperation of foreign governments.[22] The US must speak with a single voice in its international undertakings.  While it seems to feel entitled to both “go it alone” and to demand other sovereign to implement international law and global democratic values at the same time, such confusing insistence on international law is a sign of weakness.[23] At a time when the world’s greatest problems cannot be solved at a national level, we should keep in mind that the “judicial integration of the US in the international legal community is a condition for American influence in it.”[24]

[1] U.N. Charter art. 94, para. 1.

[2] Medellín v. Texas, 552 US 491 (2008).

[3] Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST. 77, 596 U.N.T.S. 261 (ratified by the United States on Nov. 12, 1969) [hereinafter VCCR].

[4]Id., art. 36.

[5] Medellín v. Texas, 552 US 491, 492 (2008).

[6] The 2009 Criminal Justice Transition Coalition, Smart on Crime:  Recommendations for the Next Administration and Congress, 239 (2008), available at view=article&id=25&Itemid=22 [hereinafter Smart on Crime].

[7] Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Mar. 19, 1967, 21 UST. 325, 596 U.N.T.S. 487.

[8] Smart on Crime, supra note 6, at 245.  See also Medellín v. Texas, 552 US 491, 493 (2008).

[9] Id. at 240.

[10] Ben Geslison, Treaties, Execution, and Originalism in Medellín v. Texas, 128 S. Ct. 1346, 32 Harv. J.L. & Pub. Pol’y 767, 767 (2009).

[11] Cindy Galway Buys, The United States Supreme Court Misses the Mark:  Towards Better Implementation of the United States’ International Obligations, 24 Conn. J. Int’l. L. 39, 63 (2008).

[12] US Department of State, Overseas Citizens Services, Publication 10252 (2002), available at

[13] D. A. Jeremy Telman, Medellín and Originalism, 68 Md. L. Rev. 377, 429 (2009).

[14] Cyril Robert Emery, Treaty Solutions From the Land Down Under:  Reconciling American Federalism and International Law, 24 Penn St. Int’l L. Rev. 115, 138 (2005).

[15] Id. at 145-46

[16] John C. Reitz, Political Economy as a Major Architectural Principle of Public Law, 75 Tul. L. Rev. 1121, 1147 (2001).

[17] Id.

[18] Jeffrey L. Friesen, The Distribution of Treaty-Implementing Powers in Constitutional Federations:  Thoughts on the American and Canadian Models, 94 Colum. L. Rev. 1415, 1433–35 (1994).

[19] Buys, supra note 11, at 42, n.2.

[20] Andreas L. Paulus, From Neglect to Defiance?  The United States and International Adjudication, 15 Eur. J. Int’l. L. 783, 785 (2004).

[21] Id.

[22] Id.

[23] Id. at 810.

[24]Id. at 812.