Tuesday, July 17, 2012

The Consular Notification Compliance Act of 2011

Senate Bill 1194 and Article 36 of the Vienna Convention

By Shawn Smith 
Shawn Smith graduated from Albany Law magna cum laude in 2012 and is originally from Jefferson, NY. He earned a Bachelor’s Degree from the State University at Albany. Throughout law school, Shawn interned at the Schenectady County District Attorney’s. He has tried several cases, argued in the Appellate Division, conducted felony hearings in both City and County Court, and written numerous appellate briefs. In addition, Shawn owns and operates A-1 Transmission in Albany, NY and the Blenheim Hotel in Blenheim, NY. Shawn was also a Senior Editor for the Center for Judicial Process.
This paper was prepared for Professor Gathii’s International Buisiness Transactions class, Fall 2011.

The President signed, and the Senate ratified, the Vienna Convention on Consular Relations Done at Vienna on April 24, 1963. Article 36 of that treaty, titled “Communication and Contact with Nationals of the Sending State,” provides that detained foreigners shall have the right to contact their nation’s consulate. More importantly perhaps, Article 36 also provides that the authorities of the receiving state shall inform the detained person of their right to contact their consulate.

This treaty language, which on its face appears to grant a specific right to foreign nationals detained in the United States, became the subject of many state and federal court cases throughout the latter part of the twentieth century. Criminal defendants who had not been informed of their right to contact their consulate, sought to have their convictions overturned on that ground. Courts interpreted Article 36 of the Vienna Convention in various ways, but nearly all courts refused to grant the defendant’s relief.

United States courts were not the only judicial bodies that interpreted defendant’s rights under Article 36 of the Vienna Convention. Germany and Mexico each brought suit against the United States in the International Court of Justice contending that, by not notifying certain detained German and Mexican nationals of their right to contact their consulate, the United States had failed to comply with its obligations under Article 36. In both of these cases, the International Court of Justice held that the United States was in violation of its treaty obligations.

However, despite the ICJ’s rulings, the Supreme Court of the United States decided a case involving an alleged violation of Article 36 and determined that the treaty did not create domestically enforceable rights, because the Vienna Convention was not “self executing.” The Supreme Court held that if Congress desired Article 36 to be domestically enforceable, it would need to enact legislation to that effect.

In an effort to comply with the Supreme Court’s ruling, Senator Leahy of Vermont, the chair of the Senate Judiciary Committee, introduced Senate Bill 1194: Consular Notification Compliance Act of 2011, on June 14, 2011. Bill 1194’s purpose is “to facilitate compliance with Article 36 of the Vienna Convention on Consular Relations,” and it requires state and federal officers to inform certain detained foreigners of their rights pursuant to Article 36 of the Vienna Convention.*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.