Copyright (c) 2005 School of Law, Santa Clara University
Santa Clara Law Review
COMMENT: THE VIENNA CONVENTION ON CONSULAR RELATIONS: QUO VADIS, AMERICA?
45 Santa Clara L. Rev. 937
Nicole L. Aeschleman*
The application of international law, and specifically of International Court of Justice ("ICJ") 1 decisions, in U.S. domestic courts is a contentious issue in the United States. More than thirty-five years after the ratification of the Vienna Convention on Consular Relations ("Vienna Convention" or "Convention"), 2 a multilateral treaty enacted to protect foreign nationals who have been detained by law enforcement officials in a signatory nation, 3 and the Optional Protocol on Disputes, a treaty accompanying the Convention that gives the ICJ compulsory jurisdiction over "disputes arising out of the interpretation or application of the Convention," 4 the United States government remains irresolute about the applicability of these treaties in the U.S. domestic court system.
The uncertainty persists despite two ICJ decisions finding that the ICJ has jurisdiction over Vienna Convention claims, as proscribed by the Optional Protocol, and that the United States violated its duties under the Convention. 5 These ICJ decisions held that the U.S. habeas corpus procedure violates the Vienna Convention when it prevents foreign nationals from having their U.S. convictions and sentences reviewed and reconsidered in light of alleged Convention violations. 6 The U.S. Supreme Court's current position on this issue, based on its latest case ruling, is that banning such review, through the application of state procedural defaults, is appropriate. Thus, the ICJ decisions conflict with the law of the United States.
Recent developments in Vienna Convention law 7 necessitated a response and a clarification of ...
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