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In Defense of Consular Rights
On June 6, 2007, the United States Department of State published an impressive defense of the official views held by the United States on international law. John B. Bellinger III, the Legal Adviser's remarks at The Hague, included the following observations on consular access:
For nearly a decade the United States has struggled to reconcile our obligation to obey orders of the International Court of Justice with our system of criminal justice, in which most criminal law is state, not federal, law. In 1998 the ICJ asked the Clinton Administration to delay the execution of a convicted murderer who claimed certain rights under the Vienna Convention on Consular Relations. The U.S. government conveyed the request to Virginia, the state that had imposed the sentence, along with its endorsement of the request, but believed it could do nothing more.No doubt the perceptions vary greatly from different perspectives. But the United States' top international lawyer's statement appears to open the door to dialogue which begins with the outline of facts as perceived by the various sides. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington. consular access legal adviser
More recently, in the Avena decision, the ICJ ordered the United States to review the cases of 51 Mexican nationals convicted of capital crimes. All of these individuals were represented by counsel and had or will have multiple opportunities to seek judicial review of their convictions and sentences. All of their lawyers had reason to know of the Vienna Convention and how it affected their clients. But all had failed to present the grievance about violation of the Vienna Convention to the trial court in a timely manner. The ICJ, however, declined to acknowledge the U.S. rule requiring timely presentation of a defense during the course of a criminal trial - a rule that prevents defendants and their lawyers from abusing the system to obstruct and delay the administration of justice.
The cases covered by the ICJ judgment all involved heinous murders, including of young children. Some proceedings had gone on for many years, with the victims' families patiently waiting while our state and then federal courts reviewed the outcome to ensure that it fully complied with our laws. Yet the ICJ judgment nonetheless required us to review these cases again to consider the unlikely possibility that the outcome would have been different if the defendant had been asked whether he wanted his consular officer notified of his arrest.
It is hard for those who were not intimately involved in the process to appreciate how difficult, legally and politically, this issue was, or how seriously we took it. The pressure on this administration was enormous: The President had been Governor of Texas, where many of the cases arose. The crimes had been atrocious, and the ICJ judgment required us to disregard the normal rules of procedure for our criminal trials. The President, acting on the advice of the Secretary of State, nonetheless decided to require each State involved to give the 51 convicts a new hearing.
The first defendant to try to take advantage of the President's decision was in the state of Texas, which objected to the President's decision. In response, the Texas Court of Criminal Appeals ruled that the President had no power to intervene in its affairs, even to obtain compliance with an order of the ICJ. This Administration has gone to the Supreme Court of the United States to reverse this decision. We expect a ruling from that Court this time next year.
Fri, / / Embassy Law Link
