Protecting Americans Abroad, And Human Rights

If you were detained abroad, would you want to be guaranteed access to help from your Embassy?  Of course you would.

Last week, the Senate Judiciary Committee heard testimony from officials at the Department of Justice, the State Department, prominent constitutional lawyers, and Clare Gillis, a journalist who spent 44 fearful days detained in Libya, in support of the Consular Notification Compliance Act, legislation introduced earlier this summer by Senator Patrick Leahy of Vermont.

This bill enlists state law enforcement officials and federal courts to comply with a 2004 International Court of Justice (ICJ) ruling, known as the Avena decision, which ordered the U.S. to remedy its failure to inform 51 foreign national death row prisoners of their right to access their consulate “without delay”.  This right is specified by the Vienna Convention of Consular Relations (VCCR), which became U.S. law in 1969. One of the 51 men, Humberto Leal, was recently executed by Texas as Leahy presented his legislation.

Many of the hearing witnesses cited the fact, affirmed by the U.S. Supreme Court, that both the VCCR and ICJ judgments are international law obligations.  They argued that U.S. non-compliance with VCCR obligations puts Americans abroad at risk for similar infringements of their rights. And there are thousands of U.S. military personnel and Americans visiting or working abroad who, like Ms. Gillis, find themselves dependent on other nations’ reciprocal commitment to the treaty.

The U.S. professes to be the standard-bearer of human rights (though its recent record indicates otherwise).  Passing Senator Leahy’s bill and affirming a human rights commitment that actually protects U.S. citizens abroad ought to be a no-brainer.

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9 thoughts on “Protecting Americans Abroad, And Human Rights

  1. I read recently that the US Constitution states that the US is not obligated to keep its treaties and agreements and should not if there is danger for the US. This leaves me wondering where it actually stands in behavior rather than rhetoric. My perception is that it is a major treaty breaker, has no interest in protecting anyone other than the richest off its own citizens and cannot be trusted.

  2. Article 6, clause 2 of the U.S. Constitution states: "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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

    Since the terms of the Vienna Convention of Consular Relations were found constitutional upon the U.S.'s ratification of the treaty in 1963, our government is bound to adhere to it. However, treaties may be either "self-executing", meaning they immediately come into force under article 6 and may be enforced by the courts, or "non-self-executing", which is the case here. Non-self executing treaties are those that courts may not enforce absent congressional legislation obliging them to do so, despite the fact that the treaty itself is supreme law and constitutes an international obligation. The U.S. Supreme Court found in the 2008 Medellin v. Texas decision that Texas courts did not have to obey the ICJ's Avena ruling to review the cases of the Avena defendants who were allegedly denied their right to consular access despite the Vienna Convention's obligation of the U.S. to comply with such ICJ rulings because the U.N. Charter only requires the U.S. to "undertake to comply" with them. This language was interpreted to mean that the Treaty was non-self-executing, and therefore the courts could not enforce it absent legislation. It seems ridiculous that there should be such nuances when the U.S. signs a treaty that is substantively and procedurally constitutional and that there should be any confusion as to whether or not the U.S. is bound to comply with it, but such is the nature of our legal system. I hope that Congress has enough sense to pass Senator Leahy's bill so that we can actually adhere to a treaty that has been part of our law for over 4 decades.

  3. The real question is what the remedy is if it's not complied with. Should a murderer or rapist go free if he's not put in touch?

  4. I read recently that the US Constitution states that the US is not obligated to keep its treaties and agreements and should not if there is danger for the US. This leaves me wondering where it actually stands in behavior rather than rhetoric. My perception is that it is a major treaty breaker, has no interest in protecting anyone other than the richest off its own citizens and cannot be trusted.

  5. Article 6, clause 2 of the U.S. Constitution states: “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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    Since the terms of the Vienna Convention of Consular Relations were found constitutional upon the U.S.’s ratification of the treaty in 1963, our government is bound to adhere to it. However, treaties may be either “self-executing”, meaning they immediately come into force under article 6 and may be enforced by the courts, or “non-self-executing”, which is the case here. Non-self executing treaties are those that courts may not enforce absent congressional legislation obliging them to do so, despite the fact that the treaty itself is supreme law and constitutes an international obligation. The U.S. Supreme Court found in the 2008 Medellin v. Texas decision that Texas courts did not have to obey the ICJ’s Avena ruling to review the cases of the Avena defendants who were allegedly denied their right to consular access despite the Vienna Convention’s obligation of the U.S. to comply with such ICJ rulings because the U.N. Charter only requires the U.S. to “undertake to comply” with them. This language was interpreted to mean that the Treaty was non-self-executing, and therefore the courts could not enforce it absent legislation. It seems ridiculous that there should be such nuances when the U.S. signs a treaty that is substantively and procedurally constitutional and that there should be any confusion as to whether or not the U.S. is bound to comply with it, but such is the nature of our legal system. I hope that Congress has enough sense to pass Senator Leahy’s bill so that we can actually adhere to a treaty that has been part of our law for over 4 decades.

  6. The real question is what the remedy is if it’s not complied with. Should a murderer or rapist go free if he’s not put in touch?

  7. Leahy's bill simply gives U.S. Courts the jurisdiction to "review" the cases of foreign nationals who allege that they were denied their rights (as commanded by the ICJ in Avena) to determine whether or not their allegations are a. correct and b. if the denial of said right had a determinate impact on the outcome of their case. The latter will certainly be hard to prove, as is the case when any convict appeals his/her trial based on procedural errors. Most judges deem trial errors "harmless" and simply uphold the original court's decision and sentencing, but the merits of such a practice are a whole different argument. If a judge does find that the defendant was not put in contact with their consulate in a timely fashion and that that had an undeniable negative impact on the defendant's conviction or sentence, they will order a new trial and sentencing, not let the "murderer or rapist go free".

  8. Leahy’s bill simply gives U.S. Courts the jurisdiction to “review” the cases of foreign nationals who allege that they were denied their rights (as commanded by the ICJ in Avena) to determine whether or not their allegations are a. correct and b. if the denial of said right had a determinate impact on the outcome of their case. The latter will certainly be hard to prove, as is the case when any convict appeals his/her trial based on procedural errors. Most judges deem trial errors “harmless” and simply uphold the original court’s decision and sentencing, but the merits of such a practice are a whole different argument. If a judge does find that the defendant was not put in contact with their consulate in a timely fashion and that that had an undeniable negative impact on the defendant’s conviction or sentence, they will order a new trial and sentencing, not let the “murderer or rapist go free”.

  9. The real question is what the remedy is if it's not complied with. Should a murderer or rapist go free if he's not put in touch? Thanks for sharing the informative post.