Questions for the Record

Questions For the Record in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): These treaty obligations are directly binding on state and local governments, as well as the federal government, by virtue of the Supremacy Clause, Article VI of the Constitution.4 See Hauenstein v. Lynham, 100 U.S. 483, 489 (1879) (By virtue of Supremacy Clause, “every treaty made by the authority of the United States shall be superior to the Constitution and laws of any individual State.”); Kolovrat v. Oregon, 366 U.S. 187, 190-91 (1961) (provisions in bilateral treaty with Yugoslavia prevailed over inconsistent provisions of Oregon law); Clark v. Allen, 331 U.S. 503, 508 (1947) (same for treaty with Germany and California law); Asakura v. City of Seattle, 265 U.S. 332, 340-41 (1924) (under the Supremacy Clause, U.S. treaty with Japan was “binding within the state of Washington” and prevailed over a municipal ordinance); Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (“The Supremacy Clause mandates that rights conferred by a treaty be honored by the states.”).

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These obligations are also self-executing, and domestic legislation to implement these treaty obligations is not required. In other words, these consular notification and access obligations are already automatically obligatory on federal, state, and local authorities, and implemented through their existing powers. 5 See, e.g., Gandara v. Bennett, 528 F.3d 823, 828 (11th Cir. 2008) (The Vienna Convention “has the force of domestic law without Congress having to implement legislation.”); Cornejo v. County of San Diego, 504 F.3d 853, 856 (9th Cir. 2007) (“There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress.”); Jogi v. Voges, 480 F.3d 822, 831 (7th Cir. 2007) (“When the United States Senate gave its advice and consent to the ratification of the Vienna Convention in 1969, . . . the Convention became the 'supreme Law of the Land,' binding on the states.”); Breard, 134 F.3d 615 at 622 (“The provisions of the Vienna Convention have the dignity of an act of Congress and are binding upon the states.”).6

Developments

For decades, federal, state, and local governments have applied the Vienna Convention and bilateral conventions directly on the basis of the relevant treaty language and written guidance such as the State Department's Consular Notification and Access Manual. Many state and local authorities have also issued internal regulations, directives, orders, or similar instructions for their officials. For example, effective January 1, 2000, California adopted legislation setting forth the obligations under state law, Cal. Penal Code § 834c. Texas, Virginia, Indiana, and Wisconsin have all published manuals setting forth consular notification guidance; and a number or local jurisdictions have issued formal policies and guidance to law enforcement, including Peoria and Chandler, Arizona; Bowling Green, Kentucky; Truro, Massachusetts; Suffolk County, New York; and Chesapeake, Virginia.

Details

At the federal level, providing consular notification is standard operating procedure, and is incorporated into the internal procedural manuals and directives of federal law enforcement agencies. The Department of Justice and the Department of Homeland Security (DHS) have promulgated regulations on the steps their officials must take in order to discharge the obligations. See 28 C.F.R. § 50.5; 8 C.F.R. § 236.1. Within these agencies, U.S. Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the U.S. Marshals Service, the Drug Enforcement Agency, and the Federal Bureau of Investigation, as well as the U.S. Postal Inspection Service and the Internal Revenue Service Criminal Investigation Division, have all issued standard operating procedures relating to consular notification and access.

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Guidance for federal prosecutors is routinely made available to U.S. Attorneys Offices. Foreign nationals charged with federal crimes eventually may benefit from a proposed amendment to Rule 5 of the Federal Rules of Criminal Procedure that would require federal courts to inform individuals at the time of their first appearance that if they are foreign nationals, they have the option to meet with a consular official. In addition, the Uniform Law Commission currently is considering whether to form a drafting committee for similar uniform state legislation. Furthermore, for well over a decade, the Departments of State and Justice have worked closely with federal, state, and local officials to ensure that they are aware of their consular notification and access obligations and properly discharge them. The Department of State has distributed over one million sets of briefing materials on consular notification and regularly conducts training sessions all over the country. The Consular Notification and Access Manual is the centerpiece of these efforts, explaining the very simple and practical steps that should be taken to fulfill the obligations in real-world contexts. Last year, the Department distributed 6,000 manuals to law enforcement officials. The Department also distributes tens of thousands of small pocket cards each year (70,000 last year) and training videos for law enforcement personnel, maintains updated information on consular notification on its website, (internet link) travel.state.gov/consularnotification, and has a Twitter feed, @ConsularNotify, followed by over 1,200 organizations and individuals, where it provides tips on consular notification practice.

Questions For the Record

In relation to the international law practice and Questions For the Record in this world legal Encyclopedia, please see the following section:

Consular Assistence, Judicial Assistece and Related Issues

About this subject:

Consular Notification, Access, and Assistance

Under this topic, in the Encyclopedia, find out information on:

• Avena Implementation and Related Issues
• Legislation

. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Questions for the record

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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