MedellíN V. Dretke: Another Chapter in the Vienna Convention Narrative

Abstract:     
The Vienna Convention on Consular Relations (Vienna Convention) enshrines consular notification rights - the rights of detained foreign nationals who have become wards of a foreign country's criminal justice system to communicate with their home country and request, among other things, legal assistance. In practice, detaining officials in the United States are typically members of state and local law enforcement agencies, and these officials often do not inform foreign national detainees of their Vienna Convention rights. By the time a foreign national raises the Vienna Convention transgression, the criminal prosecution has often progressed to a point where procedural bar rules impede a court's ability to entertain Vienna Convention-related claims and adjudicate the question of prejudice to the foreign national. Thus, during the last decade, the Vienna Convention story has evolved into a volley of litigation, bouncing between the International Court of Justice (ICJ), the Supreme Court, and lower federal and/or state courts. Medellín v. Dretke emerges as a relatively minor chapter in this Vienna Convention narrative. Although the Court granted a writ of certiorari in Medellín to answer fundamental international law questions involving the effect of an ICJ decision on lower federal and state court proceedings, the Court, following a Presidential memorandum that ordered lower courts to comply with the ICJ decision, ultimately dismissed the case for improvidently granting certiorari. Thus, the Court, for the time being, dodged the underlying international law questions, leaving other transnational actors with to grapple with the complexities that the Vienna Convention presents. The Medellín decision nonetheless highlights much about the nature of international law. In particular, Medellín (1) reminds that state courts, and thus local practitioners, remain important players in the evolution and resolution of transnational legal issues; (2) implicitly reaffirms the breadth of executive power in foreign affairs; and (3) for the Court watchers and vote counters, provides insight into how the Court may resolve related international legal issues in the future.

Number of Pages in PDF File: 25

Keywords: international law, International Court of Justice, consular relations, Vienna Convention on Consular Relations, executive power, state courts, transnational legal process

Accepted Paper Series