Federalism and Foreign Affairs: How to Remedy Violations of the Vienna Convention and Obey the U.S. Constitution, Too

Authors

Joshua A. Brook, U.S. Court of Appeals for the Second Circuit

Abstract

This Note discusses various ways to bring the United States into better compliance with the 1963 Vienna Convention on Consular Relations The introduction to this Note discusses how violations of the Vienna Convention are currently treated in the United States. In particular, the introduction discusses the unsuccessful attempts to prevent the execution of Karl and Walter LaGrand, two German nationals sentenced to death in Arizona. The LaGrands were convicted after a violation of their rights under the Vienna Convention because they were not informed without delay of their right to consular notification and assistance. In later appeals, United States courts refused to review or reconsider the sentence on the basis of the Vienna Convention violation, because the LaGrands had procedurally defaulted the claim. The introduction notes that after the death of Karl and Walter LaGrand, the World Court declared the United States had violated the Vienna Convention, and that it must allow reconsideration and review of death sentences in future cases where consular rights have not been given.

Section one of this Note argues that the federal government has the power to force the States into compliance with the Vienna convention. Subsequent sections of the Note discuss how various branches of the federal government might attempt to force the States to comply.

Section two discusses how the judicial branch might seek to enforce the Vienna Convention upon the states. Section two argues that the United States Courts can and should employ the World Court's view of the scope of consular rights contained within the Vienna Convention. This section also addresses the thornier problem of sovereign immunity and argues that the Eleventh Amendment should not prevent the federal government from enforcing the Vienna Convention, because the States may not raise the Eleventh Amendment to avoid the effects of a international treaty. Section two argues that even if the Eleventh Amendment does apply to binding international treaties, it does not apply to cases like LaGrand, because these cases clearly fall into the exception to the Eleventh Amendment established by Ex Parte Young.

Section three discusses whether the executive branch could stay or commute a State death sentence for a foreign national, on the ground that the sentence was rendered in violation of the Vienna Convention. This section concludes that an attempt by the executive to delay an execution on these grounds would probably fail because it would fall outside of the President's authority to see the laws are "faithfully executed."

Section four of this Note discusses the power of Congress to enforce the Vienna convention against the States. The primary obstacle to such an attempt would be the anti-commandeering doctrine of Printz v. United States. This section argues that the anti-commandeering doctrine does not extend to the treaty power. It goes on to propose several routes congress could use to ensure compliance with the Vienna Convention. Congress could enforce the Vienna convention by: using the conditional spending power; expanding federal habeas corpus jurisdiction; creating an independent federal cause of action for violations of the Vienna convention; expressly granting the President limited clemency power; or directly pre-empting State death penalty law with a federal law tracking the Vienna Convention.

Recommended Citation

Joshua A. Brook, Federalism and Foreign Affairs: How to Remedy Violations of the Vienna Convention and Obey the U.S. Constitution, Too, 37 U. Mich. J. L. Reform 573 (2004).
Available at: https://repository.law.umich.edu/mjlr/vol37/iss2/6