Fixing Medellín: Ensuring Consular Access Through Compliance
With International Law
In 2008, the United States Supreme Court decided Medellín v. Texas,1 a case in which José Ernesto Medellín, a Mexican national on death row in Texas, challenged his conviction. Mr. Medellín claimed that after being taken into law enforcement custody he was not afforded his right of consular notification and access, pursuant to the Vienna Convention on Consular Relations (VCCR).2 The Court found that the International Court of Justice's (ICJ) 2004 decision in Avena and Other Mexican Nationals (Avena)—which interpreted the VCCR as requiring the U.S. to provide further "review and reconsideration" of the convictions of Mr. Medellín and 51 other Mexican nationals on death row in the U.S.—was not binding domestic law.3 As a result, the Court held that, absent implementing legislation passed by Congress and signed by the President, neither the VCCR nor the ICJ’s Avena decision were enforceable by federal courts against Texas.4 This decision effectively barred Mr. Medellín and others who had previously been denied their consular notification and access rights from seeking judicial review of these violations of the VCCR, and caused the U.S. to breach its commitment to the VCCR.
The President and Congress should ensure that the United States honors its commitment to the VCCR by taking the following steps: first, the President should rejoin the Optional Protocol concerning the Compulsory Settlement of Disputes of the Vienna Convention on Consular Relations; second, Congress should pass legislation providing foreign nationals with judicial remedies for violations of their rights under the VCCR; and finally, the President should require that the Department of State and the Department of Justice provide further education and support to state and local law enforcement about the right to consular access and compliance with this obligation going forward.
Addressing these issues is critical not only to protect foreign nationals in U.S. law enforcement custody, but also to ensure that U.S. citizens and service members abroad receive the full protections of the VCCR.