America, consular relations and compliance

If we move on from my previous article, and accept that international law is, well, important and relevant, we can venture into more dangerous territory: a case study that seems to defy my own position. US non-compliance with the law on consular relations is pervasive, even systemic. Foreigners are not being advised of their rights under that body of law when arrested and detained in the US. Why is that? Why can’t even the International Court of Justice compel the American government to comply? Here is what I found so far. In a nutshell.

Compliance theory

A quick reminder: I have mentioned here a few times that I have gotten into compliance theory a few years ago, i.e. the question of why states comply with international law to such a great extent in the absence of direct enforcement. This field is based on the assumption that stated do indeed comply on such a level. So, to ask why that is has solicited many theories from both international legal theory as well as international relations theory. Only the classic realists don’t buy this assumption. Some theories are based on managerialism, others on identity; a few more on economics, legitimacy and process. But these are just academic labels. They are theories based on case studies. How did compliance come about in this and this case? I thought I’d go about it a bit different. In my research I use Transnational Legal Process as a framework to look into the case of persistent American non-compliance with the Vienna Convention on Consular Relations (VCCR).

Consular Relations

Under the Vienna Convention, an arrested foreigner must be told that he has the right to assistance from his home state, through its consulate in the country. The rationale for this right is the unfamiliarity with the legal system to which the foreigner is subjected, putting him at a severe disadvantage. However, many law-enforcement officials in the US fail to do so. Foreigners, but most notably, many illegal immigrants from Latin America have ended up on death row – and been executed – without having seen their consular official. A myriad of legal questions have arisen as defendants have also made this argument during their legal proceedings. But American courts, including the Supreme Court of the United States (SCOTUS) did not want to entertain the argument. No convictions were overturned or sentences amended. As a last resort, Paraguay, Germany and Mexico went to the International Court of Justice (ICJ) on behalf of their citizens.

The ICJ, SCOTUS and the US Constitution

Within 5 years of each other, the three mentioned states applied to the ICJ accusing the US of violating the VCCR. In the cases of Germany (LaGrand-case) and Mexico (Avena-case), real defendants were on death row. Not until a late stage in their legal proceedings did the defendants raise the issue, and did these states found out about the plight of their nationals. In both cases, the ICJ decided that the US had indeed violated the treaty, and had to give effect to the right to consular assistance within the US. But SCOTUS wasn’t having it. It decided that the ICJ decisions and the consular relations treaty were not directly applicable within the US legal system according to constitutional doctrine. Plus, it thought was the ICJ was wrong anyway. So, nothing really happened. The German citizen and the Mexican nationals were executed nonetheless.

Federalism and American Exceptionalism

But why didn’t the US and its legal system respond to international law and the ICJ decisions? Well, first reason: federalism. Despite pleas from the US federal government, it has no authority over local criminal justice systems. That is no valid excuse under international law, so the US remains responsible for violating the VCCR. It is caught between a rock and a hard place. Second, even more fundamental is the foundational, constitutional resistance to international law; the legal expression of American exceptionalism. However, if you read the US Constitution, things don’t seem that bad. Treaties are the law of the land, and customary international law is federal common law. Over time, these starting principles have been watered down so to speak. Treaties are only equal to US law and directly applicable if they are ’self-executing’. And that criterion has only become stricter. In more recent times, the role and effect of customary international law is somewhat under fire. But why has the place of international law so steadily been undermined?

Stunted theory

It is a legal, political and cultural resistance to having anything foreign trump (no pun intended) US law. No surprise. Call it isolationism, the unique American experiment, or just geography, it all results in a sense of exceptionalism among Americans. And the relevant issue for me is to use this example in all its detail to discredit or refine the compliance theory of Transnational Legal Process. This is an attractive theory because it tries to explain compliance by zooming in on details and, well, process. But it has its flaws and tends towards an inevitability of compliance if you would only be more patient. Let me reserve a further explanation of that theory – and it flaws – for another time. A cliffhanger of sorts.

How do you like them apples?

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