ASIL Presidents Call on Congress to Pass Legislation to Ensure Compliance with the Avena Judgment

Yesterday, the American Society of International Law's current and (living) past presidents sent a letter to congressional leaders urging them to pass legislation that would ensure U.S. compliance with the International Court of Justice's judgment in Avena. As noted previously, a bill was introduced earlier this week that would do precisely that. Here's the letter:

In light of the Supreme Court’s recent decision in Medellin v. Texas, we urge congressional action to ensure that the United States lives up to its binding international legal obligations under the Vienna Convention on Consular Affairs and the United Nations Charter. As current and past Presidents of the American Society of International Law, writing in our personal capacities, we are concerned about the possible U.S. breach of these obligations and the impact such breach could have on our own nationals abroad and on our reputation as a trusted counterparty in international legal relations.

In the Medellin case, the Supreme Court unanimously agreed with the Bush administration that the United States is obliged to comply with the International Court of Justice (ICJ) judgment in the Case Concerning Avena and Other Mexican Nationals holding that the United States must provide "review and reconsideration" of the criminal convictions of 51 Mexican nationals in the United States who were denied their Vienna Convention rights of access to their own national consular officials when apprehended.

President Bush had issued a Memorandum to the Attorney General directing that state courts give effect to the Avena judgment. The Supreme Court concluded, however, that both it and the President were powerless to order such "review and reconsideration" and that, absent voluntary action by state executives or legislatures, compliance with this international obligation requires congressional action.

With the execution of the first of the Mexican nationals scheduled to take place in Texas on August 5, 2008, the United States is poised irreparably to violate the Vienna Convention and a judgment of the ICJ. Such violations of international law would set a dangerous precedent, undermining the reciprocal Vienna Convention rights that American citizens are entitled to enjoy while traveling, living, or working abroad.

Such violations would also damage the reputation of the United States as a nation that respects its international legal obligations and holds others to the same high standard. Our ability to conclude agreements binding on other countries facilitates nearly every aspect of our international relations, including critically important issues relating to cooperation in counter-terrorism efforts, trade, nuclear non-proliferation, environmental protection, and international investment. Our interests in these areas dictate that we adhere to our obligations, including those under the Vienna Convention and U.N. Charter.

Both the President and the Supreme Court have concluded that the United States is obliged to comply with the ICJ Avena judgment. The President has recognized the importance of such compliance to U.S. international relations. Now it falls to Congress to legislate compliance. If you fail to do so, Americans who are detained abroad may well lose the critical protection of ensured access to United States consular officers. We urge that you act, and act quickly.

We thank you for your attention to this important matter.