Friday, December 4, 2009
The recent Supreme Court decision in Medellín v. Texas created a veritable “maze” for foreign prisoners in the U.S., and their countries of nationality, who might wish to enforce their rights under the Vienna Convention on Consular Relations (the “VCCR”). This decision, and other Supreme Court and lower federal court opinions, have erected “dead ends” for prisoners and their countries of nationality that block their “escape” from this maze. These opinions, among other implications, cast substantial doubt on the availability of judicial relief for individuals under the VCCR, foreclose executive enforcement, and exclude the possibility of corrective injunctions for many current prisoners. This article also takes the position, unacknowledged by many others, that the Supreme Court’s “new federalism” even poses risks to potential congressional enforcement of VCCR rights. This article initially describes how present doctrines erect these dead ends for virtually all the escape routes that courts and commentators seem to be currently considering. This article then proposes a possible new plan of escape, at least for the sovereign sending States whose nationals’ rights are being violated. It is noted that sending states parties to the VCCR have substantial rights under it, in their own distinct capacities as parties to it. This article suggests that once a U.S. jurisdiction violates the VCCR rights of a prisoner from a foreign State, the VCCR rights of that State itself are also violated, and that this violation is continuous. Accordingly, the sending State should be able to obtain an injunction against the U.S. jurisdiction’s officers, requiring them to obey the VCCR prospectively.