Avena Implementation

Avena Implementation

Questions For the Record in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Section 4(a)—the carefully circumscribed retrospective remedy that is designed to meet the treaty obligation of the United States identified by the Supreme Court in the Medellin decision—will not impose an undue burden on states or federal courts. Section 4(a) of S. 1194 addresses retrospective Vienna Convention claims of those foreign nationals sentenced to death at the time of enactment of S. 1194. Currently there are approximately 130 foreign nationals under sentence of death in the United States, only some of whom allege they did not receive timely consular notification and access. Section 4(a) provides a carefully tailored, time-limited opportunity for judicial review and reconsideration on federal post-conviction review of the capital conviction and sentence for foreign nationals who were previously sentenced to death at the time of enactment, and who did not receive timely consular notification. While procedural default rules would not bar this opportunity, relief would be available only where a petitioner shows actual prejudice—a high burden which the U.S. courts are familiar administering—to his or her conviction or sentence based on the lack of consular notification or access. It should also be noted that Section 4( a) would eliminate the current burden faced by the states and by federal courts in dealing with Avena challenges to these convictions. Thus, for this and the foregoing reasons, we do not believe that a substantial additional burden would be imposed by Section 4(a). See Medellin v. Texas, 552 U.S. 491, 536 (2008) (Stevens, J., concurring) (noting that in Medellin “[t]he cost to Texas of complying with Avena would be minimal ….”);State of Texas, Br. In Opp., Pet'n for Writ of Certiorari in Medellin v. Texas, Nos. 08-5573, 08A98, U.S. Sup.

Ct., at 17 (August 4, 2008) (Texas “acknowledge[ d]” the “international sensitivities presented by the Avena ruling” and that “[t]he cost to Texas of complying with Avena would be minimal[,]” quoting Justice Stevens).

More about Questions For the Record

The State Department's responses to QFRs reinforced the point that treaty obligations under the Vienna Convention already apply to the states. The excerpt below is the State Department's response to the question from Senator Leahy: “What obligations regarding consular notification currently apply to the states and why?” The full text of the State Department's responses to QFRs from the July 27, 2011 hearing is available at (internet link) state.gov/s/l/c8183.htm.

Developments

The Vienna Convention on Consular Relations (“Vienna Convention”) is a multilateral international treaty to which the United States has been a party since 1969. President Kennedy signed the treaty in 1963, and in 1969 President Nixon transmitted the Vienna Convention to the Senate for advice and consent under Article II, Section 2 of the Constitution, which the Senate unanimously provided by a vote of 81 to 0. The United States is also party to over 50 bilateral consular conventions containing similar provisions on consular notification and access. The United States became a party to each of these conventions by ratifying them upon the Senate's advice and consent. All of these conventions have been the law of the land, binding on U.S. federal, state, and local authorities, since their ratification.

Details

Domestic officials at the federal, state, and local level are obligated under Article 36 of the Vienna Convention2 to follow three simple rules with respect to any national of another Vienna Convention party who is arrested or detained in their jurisdiction: authorities must ask the individual without delay if he or she wants to have the consulate notified; notify the consulate without delay if so; and allow the consulate access to the individual if the consulate so requests. “Asking” an individual means that if authorities ascertain that the detained individual is a foreign national, they must tell the individual that he or she may have the consulate notified of the detention. This may be accomplished by asking the individual if he or she is a foreign national, or by informing all individuals taken into custody that if they are a foreign national, they may have their consulate notified. “Without delay” means that the authorities should inform the individual promptly. This means that there should be no deliberate delay, and notification must occur as soon as reasonably possible under the circumstances. In criminal proceedings, this ordinarily means that the person should be informed about the option to seek consular assistance at booking, when identity and foreign nationality can be confirmed in a safe and orderly way. Notification of the consulate “without delay,” in turn, means as soon as possible but generally no later than 72 hours after arrest.3

More about the Issue

For nationals of countries that are parties to relevant bilateral conventions, the rules may differ slightly. Most commonly, bilateral conventions, including those with China, Russia, and the United Kingdom, require state authorities to notify the consulate of an arrest or detention, whether or not the individual requests it. The specific requirements of these “mandatory notification” conventions and other information are provided in the Department of State's Consular Notification and Access Manual, available at (internet link) travel.state.gov/consularnotification.

Resources

See Also

  • Consular Assistence
  • Judicial Assistece
  • Consular Services
  • Avena Implementation
  • Legislation

Resources

Notes and References

  1. 2 Article 36 of the VCCR provides as follows:

    1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

    (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

    (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

    (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

    2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, 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.

  2. 3 As noted below, the Federal Rules Committee currently is considering a recommendation from the Department of Justice to amend Rule 5 of the Federal Rules of Criminal Procedure to require that federal courts ensure that consular notification has been provided to foreign national defendants at the time of their first appearance.
  3. 4 The Supremacy Clause provides that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” U.S. Const., Art. VI.
  4. 5 The Consular Notification Compliance Act is needed, however, because it will give domestic legal effect to the Avena judgment and prevent further violations of the Vienna Convention by enshrining existing treaty obligations on consular notification and access in Federal law.
  5. 6 It is important to note that the U.S. Supreme Court in Medell’n did not hold that the consular notification requirements of the Vienna Convention are not binding on the United States or the several states. Instead, it addressed the nature of the International Court of Justice's judgment in the Avena case, holding that the judgment was not, on its own, directly enforceable in state courts even though President Bush had issued an executive memorandum directing state courts to give effect to the judgment. Medell’n v. Texas, 552 U.S. 491, 522Ð23, 525Ð26 (2008).

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