The Right to Access Your Consulate

Let’s say you are on vacation somewhere outside of the United States–let’s say it is Europe–and you run into some serious legal problems. Perhaps you find yourself being charged with a serious crime, such as murder or being an American spy. An unlikely scenario for most of us, but it might still make you feel a little better to know that you have a right to contact the American consulate and request advice or assistance from your home country. Indeed, this is a real concern for American military and aid personnel serving overseas. And it is a right that even so-called rogue nations respect, as Liz Goodwin notes in a recent article. North Korea granted such access to American journalists it jailed and Iran did the same for the American hikers it thought were spies.

The Vienna Convention on Consular Relations, adopted in 1963, both created new international law and codified pre-existing international customs. Much of its 79 articles focus on the definitions of consular activities and the rights and immunities of consular staff. Article 36, however, has been broadly interpreted as providing foreigners who are arrested a right to access their home country consulates.

Al of this seems straightforward, so why is there a problem in the United States? On one level, there is a question of federalism. The typical VCCR case that makes its way into law school case books, cases such as Medellin, Avena, and LaGrand, have often involved American Presidents trying to tell Governors to stay executions of foreign nationals because their consular rights were never invoked. Indeed, this is exactly what is happening right now. President Obama, and his solicitor-general are asking Texas to grant a stay of execution. This is to give Congress time to finally pass legislation that will finally incorporate American obligations under the treaty it signed and ratified into the domestic legal system, as the Supreme Court has said is required. So this goes to the second reason for the problem today. There is disagreement as to whether our original ratification of the treaty was sufficient and self-executing (as the Massachusetts Supreme Judicial Circuit has apparently said), or whether Congress was required to enact legislation first (what the Supreme Court has said).

So here we are. Tomorrow, July 7, the State of Texas is scheduled to execute Mexican national Humberto Leal. Whether or not he is guilty (likely he is, in this case) and whether or not an intervention from the consulate would have altered the penalty, we should still be aware that how we treat the nationals of other countries may impact how those other countries treat our own nationals.

One of the key principles underpinning international law is reciprocity. We often make agreements and uphold those agreements in the hope that others will do the same. As so many observers have been pointing out, this is one issue where the United States is not upholding its end of the bargain and if that continues we should be worried that others will no longer do the same for us. Let’s hope that Congress finally passes this legislation so that we can put this issue to rest.

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