Implementing Legislation for VCCR Introduced in US Senate
June 14, 2011
Today brings further developments in the saga of the United States' attempts to provide consular notice to foreign defendants in the United States in accordance with its international obligations. U.S. Senator Patrick Leahy has introduced a bill to faciliate compliance with the Vienna Convention on Consular Relations.
The bill reaffirms the duty of state and federal officers to provide timely consular notification in all cases where a foreign defendant is arrested or detained.
However, it only provides federal courts with specific jurisdiction to review claims of lack of consular notice in capital cases.
In his statement accompanying the bill, Senator Leahy states that he recognizes the need to ensure prompt consular notice in all cases involving foreign defendants, but is seeking support for the narrower Consular Notice Compliance Act as a first step in that direction, particularly in light of the scheduled execution next month of foreign national, Humberto Leal. The bill may be found here.
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Indeed, the U.S. Supreme Court in Medellín did recognized the duty of the U.S. to comply with the VCCR.
Why not expand the jurisdiction to state court? Is it due to a lack of political capital or constitutional basis?
Despite the fact that the obligation to provide consular notice to foreign defendants under the VCCR is a part of criminal procedure which has long been considered as traditional state concern, Supremacy Clause has legitimate reason to trump the Tenth Amendment.
The rationale of Missouri v. Holland, 252 U.S. 416 (1920) would be true of the case involving a violation of the VCCR in state court.
In Madison v. Marbury, the Court stated that once a right is violated, there must be remedy. The notice is not a right of an individual? Only a subject of diplomatic protection?
