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Published online by Cambridge University Press: 06 March 2019
The United States is a party to the Vienna Convention on Consular Relations (“the Consular Convention”). It requires in Article 36(1)(b) that the competent authorities of each State party inform the consulate of another party if the latter's national is arrested and requests that the consulate be notified. Article 36(1)(b) further requires the authorities to inform the person arrested of the right to communicate with the consulate. Article 36(2) says that the rights in Article 36(1) are to be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso “that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”
1 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. This Introduction is based in part on ASIL Insight, The Texas Court of Criminal Appeals Decides Medellín's Consular Convention Case (Dec. 8, 2006), available at http://www.asil.org/insights/2006/12/insights061208.html. See also ASIL Insight, Medellín v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings (Apr. 8, 2008), available at http://www.asil.org/insights/2008/04/insights080418.html.Google Scholar
2 Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 266 (Order of Prov. Meas., Apr. 9); LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104 (June 27); Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).Google Scholar
3 LaGrand Case, para. 91; Avena Case, para. 113.Google Scholar
4 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).Google Scholar
5 Ex parte Medellín, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006).Google Scholar
6 Medellín v. Texas, 128 S.Ct. 1346 (2008).Google Scholar
7 Medellín, 128 S.Ct. at 1358.Google Scholar
8 Medellín, 128 S.Ct. at 1381, 1383 (Breyer, J. dissenting).Google Scholar
9 See U.S. Const. art. II, § 2, cl. 2. (explaining that in the United States, treaties - in the domestic sense of the word - require only the advice and consent of two-thirds of the Senate).Google Scholar
10 Medellín, 128 S.Ct. at 1359.Google Scholar
11 Id. at 1359–60.Google Scholar
12 Compulsory Jurisdiction, International Court of Justice: Hearing Before a Subcomm. of the Senate Comm. On Foreign Relations, 79th Cong., 2d Sess. 142 (1946) (statement of Charles Fahy, Legal Adviser to the U.S. Department of State).Google Scholar
13 The U.S. view on the scope of Article 94(2) was not widely shared by other States at the San Francisco conference that drafted the U.N. Charter. See Leland B. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations 557 (3d ed. 1969); see also 2 The Charter of the United Nations: A Commentary 1177 (Bruno Simma ed., 2002).Google Scholar
14 Medellín, 128 S.Ct. at 1360.Google Scholar
15 Medellín, 128 S.Ct. at 1360 (emphasis in the original).Google Scholar
16 See 3 Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005, at 1571 (2006).Google Scholar
17 Medellín, 128 S.Ct. at 1363. A similar approach was taken by the Fifth Circuit Court of Appeals in United States v. Postal, 589 F.2d 862 (5th Cir. 1979) (concerning Article 6 of the Convention on the High Seas). For criticism, see Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AM. J. INT'L L. 892 (1980). See also 1 Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h, and Reporters’ Note 5 (1987).Google Scholar
18 See Roper v. Simmons, 543 U.S. 551, 622–28 (2005) (Justices Scalia, Thomas and Chief Justice Rehnquist, dissenting); Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Justices Scalia, Thomas and Chief Justice Rehnquist, dissenting).Google Scholar
19 See Medellín, 128 S.Ct. at 1363 n.10 referencing Mackay Radio & Tel. Co. v. Lal-La Fatma Bent si Mohamed el Khadar, [1954] 21 Int'l L. Rep. 136 (Tangier, Ct.App. Int'l Trib.) and Socobel” v. Greek State, [1951] 18 Int'l L. Rep. 3 (Belg., Trib. Civ. de Bruxelles); 1 Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005, at 213–20 (2006).Google Scholar
20 Bundesverfassungsgericht (Federal Constitutional Court of Germany), 2 BvR 2115/01 (Sept. 19, 2006), available at http://www.bundesverfassungsgericht.de. The summary in the paragraph above is based on Jana Gogolin, Avena and Sanchez-Llamas Come to Germany – The German Constitutional Court Upholds Rights under the Consular Convention on Consular Relations, 8 German L.J. 261 (2007), and Klaus Ferdinand Gärditz, Article 36, Vienna Convention on Consular Relations-Treaty Interpretation and Enforcement-International Court of Justice –Fair trial – Suppression of Evidence, 101 Am. J. Int'l L. 627 (2007).Google Scholar
21 Medellín, 128 S.Ct. at 1368. The third argument is taken directly from Article II, Section 3 of the Constitution.Google Scholar
22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–55 (1952).Google Scholar
23 Medellín, 128 S.Ct. at 1369.Google Scholar
24 Some provisions in a treaty may be self-executing while others are not. See 1 Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h (1987). The legislative history from 1945 and 1946 that the majority in the Medellín case mentioned was concerned entirely with international enforcement when a State party to an I.C.J. proceeding failed to comply with the judgment.Google Scholar
25 United States v. Pink, 315 U.S. 203, 227–30 (1942); United States v. Belmont, 301 U.S. 324, 330–31 (1937); see U.S. Const. art. II, § 3 (illustrating that the Constitution expressly gives the President the authority unilaterally to receive ambassadors and other public ministers).Google Scholar
26 This argument has no implications for the President's asserted authority to act unilaterally to combat terrorism as commander-in-chief of the armed forces. In that context, the lines between presidential and congressional authority are much less clear than they are in the purely diplomatic context.Google Scholar
27 Medellín, 128 S.Ct. at 1371–72. The majority referred to American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003); Dames & Moore v. Regan, 453 U.S. 654 (1981); United States v. Pink, 315 U.S. 203; and United States v. Belmont, 301 U.S. 324 (1937).Google Scholar
28 Garamendi, 539 U.S. at 421.Google Scholar
29 Zschernig v. Miller, 389 U.S. 429 (1968).Google Scholar
30 Garamendi, 539 U.S. at 418.Google Scholar
31 Medellín, 128 S.Ct. at 1372.Google Scholar
32 See Louis Henkin, Foreign Affairs and the United States Constitution 203–04 (2d ed. 1996).Google Scholar
33 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).Google Scholar
34 Medellín, 128 S.Ct. at 1365.Google Scholar
35 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, U.N. Doc. A/CONF.39/27 (1969).Google Scholar
36 Report of the International Law Commission on the Work of Its Eighteenth Session, U.N. Doc. A/6309/Rev.1 (1966), reprinted in [1966] Y.B. Int'l L. Comm'n 172, 255, U.N. Doc. A/CN.4/SER.A/1966/Add.1.Google Scholar
37 See the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts, arts. 49 & 51 (“Articles on State Responsibility”), and the Commentary thereto, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, 328–33 & 341–44, U.N. Doc. A/56/10 (2001), reprinted in James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries 281–87 (2002). See also Frederic L. Kirgis, Some Lingering Questions About Article 60 of the Vienna Convention on the Law of Treaties, 22 Cornell Int'l L.J. 549, 571–72 (1989).Google Scholar
38 Articles on State Responsibility, art. 54.Google Scholar
39 Case Concerning the Air Services Agreement of 27 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (1978). The panel upheld countermeasures that “do not appear to be clearly disproportionate” when compared to the wrongful act of the other State. In Gab!íkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, paras. 85–87 (Sept. 25), the I.C.J. concluded that then-Czechoslovakia's diversion of the Danube River was disproportionate to Hungary's refusal to proceed with work under a treaty to construct and operate a system of locks on the river. The I.C.J. did not offer a test for proportionality.Google Scholar
40 Articles on State Responsibility, arts. 48 & 54.Google Scholar
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