Us Consular Notification Compliance Act

United States Consular Notification Compliance Act: Questions For the Record in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): After the July 27, 2011 hearing, both the Justice Department and the State Department provided responses to questions for the record (“QFRs”) from members of the Senate Judiciary Committee. The excerpt below from the Justice Department responses emphasizes that the Consular Notification Compliance Act would not impose any new obligations on law enforcement beyond those already required by the Vienna Convention and other treaties. The Justice Department's responses to QFRs are available in full at (internet link) state.gov/s/l/c8183.htm.

Developments

Question…

1. How would you expect S. 1194 to affect law enforcement practices and judicial proceedings? Do you think it would impose any undue burdens on states? Answer:

Details

We expect that Sections 3—which is intended to facilitate compliance with U.S. obligations under Article 36 of the Vienna Convention on Consular Relations (“Vienna Convention”) and related bilateral agreements—and 4(b)—which ensures consular notification and access and, if necessary, a limited remedy of continuance, for future capital defendants—of S. 1194 would have a minimal impact on law enforcement practices and judicial proceedings, and will not impose any undue burdens on states. The actions needed for these sections are straightforward. Indeed, the obligations for consular notification and access already exist, and have long been met as a matter of course through actions taken by federal, state, and local law enforcement based on training and guidance provided by the State Department, including through the comprehensive manual entitled, Consular Notification and Access, available at www.travel.state.gov/consulanotification. Section 3 of S. 1194 provides that federal, state, and local authorities shall inform an arrested or detained foreign national without delay of his or her option to have the consulate notified and thus creates no obligations beyond the U.S. existing treaty requirements under the Vienna Convention and related bilateral consular notification treaties.

Section 3 further makes clear that such notification should occur no later than the time of a foreign national's first appearance in court in a criminal proceeding, that federal, state, and local authorities must reasonably ensure that a foreign national in their custody is able to communicate freely with and be visited by his or her consulate, and also that the section does not create any judicially or administratively enforceable right. In sum, Section 3 merely facilitates compliance with current obligations of the United States under the Vienna Convention, and does not add to them.

More about the Issue

In Section 4(b), S. 1194 also provides a limited, and non-burdensome, means for ensuring that foreign nationals who are facing federal or state capital charges are afforded consular notification and access when consular notification has not yet taken place. Where a failure to provide consular notice and access is timely raised and substantiated, the foreign national's consulate shall be notified immediately and the individual shall be afforded consular access in accordance with U.S. legal obligations. Upon a showing of necessity, the court shall postpone proceedings to the extent necessary to allow adequate opportunity for consular access and assistance. Such a remedy—a continuance—is already available to a judge; S. 1194 merely makes clear that such a remedy is available under these limited circumstances, when someone faces federal or state capital charges. Any disruption to judicial proceedings should be minimal—the length of the continuance necessary to afford notification and assistance. This provision is thus consistent with the Supreme Court's observation in Sanchez-Llamas v. Oregon, that, if a defendant “raises an Article 36 violation at trial [i.e., that consular notification was not provided, as required by Article 36 of the Vienna Convention], a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance.” 548 U.S. 331, 350 (2006). Moreover, by ensuring that consular access is made available at this stage of the proceedings, S. 1194 helps ensure that federal and state courts will not face the burden of litigating the failure to provide access in post-trial proceedings.

Notably, again, Section 4(b) makes clear that it does not create any other additional judicial or administratively enforceable remedies.

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 Medellín 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. Medellín v. Texas, 552 U.S. 491, 522Ð23, 525Ð26 (2008).