|Gonzaga Journal of International Law||
Cite as: Edwin L. Aralica, The Inherent Conflict – Vienna Convention on Consular Relations and United States Domestic Law, 7 Gonz. J. Int'l L. (2003-04), available at http://www.gonzagajil.org/
The Inherent Conflict-Vienna Convention on Consular Relations and United States Domestic Law
Edwin Lee Aralica
In 2004, an American is executed in a foreign country. The United States government and its citizens are irate because this particular country did not notify the US Embassy that an American was on trial and executed. Nonetheless, this particular country baldly replies that "we see no need inform you when a US citizen is on trial and executed since you never do the same for other countries."
This trial and execution did not happen to an American in a foreign country. However, this hypothetical is a reality for foreigners in the United States. The International Court of Justice in The Hague declared in April 2004 that the US is in breach of the Vienna Convention on Consular Rights. This treaty "requires the arresting authorities to advise all detained foreign citizens without delay of their right to contact their consulate for assistance."
Citizens entangled in a foreign criminal justice system face unique problems. Language and cultural barriers, along with a lack of understanding of foreign legal systems, can make travelers vulnerable to severe penalties in foreign jurisdictions. Therefore, native consular officers, who have knowledge about local laws, are guides for their country-people.
In order to reduce the problem that foreigners could face when they encounter foreign laws, the United States became a party to the Vienna Convention on Consular Relations in 1969. The United States has an obligation to inform foreign nationals of their right to contact their local embassy in order for consular officials to assist them in their legal problems. Furthermore, if U.S. citizens are arrested abroad, the State Department requires foreign sovereigns to abide by the Vienna Convention. While the United States government is a zealous advocate for its own citizens, the Vienna Convention has come into conflict with American domestic laws.
American law enforcement officers have frequently failed to notify foreign nationals of their rights under the Vienna Convention. The failure to notify foreign nationals of their consular rights is also a failure of due process because the entire judicial process is adversely affected for that particular foreign national. A number of foreign nationals have raised a Vienna Convention claim as an issue in their criminal trial. However, the conflict between domestic law and international law has made these claims unsuccessful so far in the American judicial system.
International law is a network of rules and principles dealing with the conduct of nations and of international affairs. International bodies consist of international organizations, citizens, corporations, and nation-states. Unlike the common law system in the United States, international law has no formal sources of precedent. Therefore, nation-states must consent to international law. Treaties have been the prime source to bind nation-states together in a net of international law. However, the United States has signed very few international treaties that have ramifications affecting the application of domestic law.
The conflict between international law and domestic law is very simply about which law takes precedence. At the international level, the obligations of international law are superior to any rights or duties that the nation-state may have to its domestic law. Nations (or, as they are referred to in international law, States) cannot excuse non-performance of international law because of a conflict with domestic law. Nations must fulfill their obligations to international treaties that they have consented to in accordance with their domestic law.
The actual application of international law in a domestic setting is a little bit more complex. Some countries do not give any precedent to international law. The United States treats domestic law and international law as two separate entities. Furthermore, the application of international law depends on American domestic law. Since the United States is made up of separate sovereign states, the Constitution provides that international law is federal law. As a result, an international treaty such as the Vienna Convention, principally interacts with federal law.
II. Federal Law
A. The Vienna Convention on Consular Rights
Treaties, international law, legislative history, foreign law, and United States law have all recognized that foreign nationals have an individual right to consular notification and access after an arrest in the United States. The Vienna Convention on Consular Relations was signed on April 24, 1963. Until that point, it was customary international law that governed the rights of foreign nationals, and allowed for the right to contact their consulate or embassy. The Vienna Convention formalized these rights and privileges, as well as the duties of consulates. Therefore, the Vienna Convention is the most extensive international agreement on consular communications and relations. The United States ratified the Vienna Convention in 1969.
The Vienna Convention established the basis for the obligations a signature country must follow when a foreign national is arrested in that country. The convention requires that communication from arrested foreign nationals to their consulates be forwarded immediately. Also, the consulate or embassy must be notified upon the arrest of a national in a foreign state. Finally, consular officials must be granted automatic access to visit their citizens in jail and have the right to arrange for their legal representation.
The concept of consular relations is very important to individuals when they are in foreign countries. Consular officials can provide a competent defense counsel to the defendant. They can also provide background information regarding cultural differences; obtain documents; and assist in transporting witnesses. The Vienna Convention also assures governments that their citizens will be treated fairly when traveling abroad, which in turn provides for better foreign relations among countries.
Consular notification is binding on the separate sovereign states in the United States because of the Supremacy Clause of the Constitution. The Supremacy Clause asserts "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding." Since a treaty is supreme law, it supersedes state law.
Moreover, the Supreme Court stated that treaties are contracts by their nature. Further, the United States is not only a member-state of the Vienna Convention, but also participated in the original treaty negotiations. American diplomatic officials never objected to the consular notification requirement in Article 36 of the Vienna Convention. America consented to the Vienna Convention with good faith, including Article 26 which stresses that the treaty "is binding upon the parties to it and must be performed by them in good faith."
B. The State Department's Stance on Vienna Convention
The State Department has recognized the importance of enforcing the Vienna Convention and has published numerous publications that guide local law enforcement agencies. Likewise, the State Department argues that harmonization of local, state, federal, and international law in regards to the treatment of foreign nationals will ensure compliance with the Vienna Convention. However, the State Department's publications regarding the Vienna Convention are advisory and, thus, not binding on law enforcement officials in the U.S.
Nonetheless, these American diplomatic publications confirm that the Supremacy Clause makes consular notification and access binding on the states, local law enforcement officials, and the federal government. Additionally, the State Department makes clear that Article 36 obligations of the Vienna Convention must be taken seriously. Consular notification should be customary practice for law enforcement officials in order to safeguard individual freedoms, including a requirement that the foreign nationals be told of their right to request notification and a prohibition on notification unless the foreign national requests it.
In addition, the State Department has on various occasions, since 1969, insisted that other countries comply with the Vienna Convention when a foreign government has detained American citizens. For example, two Americans were detained in the 1970s by the Syrian government. The Syrian officials denied embassy access and communication to the Americans detained in Damascus. The State Department informed the American Ambassador to put the Syrian government on notice regarding its Vienna Convention obligations. Shortly after the embassy reminded the Syrian government of their treaty obligations, the American citizens were allowed to communicate with the embassy.
When Iranian students occupied the American Embassy in Tehran in 1979, they detained several American citizens. Those Americans were not permitted to communicate with U.S. consular officials, and the State Department again reminded a foreign government of its treaty obligations. Iran did not comply with the State Department's request. The State Department then initiated proceedings against Iran in the International Court of Justice (ICJ). The ICJ held that Iran violated international law because it failed to live up to its obligations as a party to the Vienna Convention.
III. THE CONFLICT – DENIAL OF TREATY RIGHTS IN AMERICA
Clearly, the U.S. government is concerned with making certain other nations follow international law and live up to their treaty obligations. However, the U.S. has failed to live up to its own treaty obligations on several occasions. Law enforcement practices in individual U.S. states have conflicted with the international obligations that the U.S. has accepted. As a result, many criminal defendants in those states have challenged their convictions claiming that their rights, as dictated by the Vienna Convention, were violated.
Despite the clear language in the requirements of the Vienna Convention, federal and state law enforcement agencies have failed to comply with consular notification procedures on numerous occasions. While the State Department has been very supportive of Vienna Convention observance outside of the criminal court context, that support does not extend to the concession of an individual right to consular notification once legal action has begun. In addition, courts at both the federal and the state level have been hesitant about enforcing the Vienna Convention.
A. Pertinent Federal Cases
U.S. courts have recognized and enforced the right to contact a consular official, though not in the criminal context, through Immigration and Naturalization Service (INS) deportation hearings. In the criminal context, the Vienna Convention has not been considered a significant concern. The Department of Justice and the State Department both argue that there is no individual standing to raise a Vienna Convention violation in a criminal case. In addition, many courts have reached conclusions similar to that of the First Circuit in United States v. Li that "Article 36 [of the Vienna Convention] does not create a ‘fundamental' right." The court further held, "even if the treaties granted individual rights to the appellants, the remedies they seek would be unavailable."
The Ninth Circuit has also been unwilling to create an enforceable individual right. United States v. Lombera-Camorlinga held:
"there is nothing in the language or operation of the treaty provision to suggest Article 36 was intended to create an exclusionary rule with protections similar to those announced by the United States Supreme Court three years later in Miranda v. Arizona, 384 US 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). In reaching this decision, we give some weight to the State Department's interpretation of the treaty, set forth in a letter originally submitted in conjunction with similar litigation currently pending in the First Circuit, United States v. Nai Fook Li, 206 F.3d 78, 2000 U.S. App. LEXIS, 2953, et. al. We not decide whether the treaty creates individual rights that are judicially enforceable in other ways."
In reaching these decisions, both the First and Ninth Circuit avoid pertinent dicta from the Supreme Court in Breard v. Greene, suggesting that the Vienna Convention created an individual right of consular notification. However, both Li and Lombera-Camorlinga have well reasoned dissents supporting an individual right under Vienna Convention. The Supreme Court denied certiorari in both cases. Therefore, these issues will continue to face defendants in federal courts.
B. Pertinent State Examples-Arizona
Arizona state officials have frequently violated the Vienna Convention on Consular Rights. Under the Constitution, the power to conduct foreign affairs is exclusively the domain of the federal government. In addition, the Supremacy Clause requires Arizona to abide by international law in the form of treaties signed by the U.S., even if the international law would conflict with state law. Thus, an international treaty to which the U.S. is a party supercedes local state authority. When foreign nationals are arrested in Arizona, the local authorities must notify their embassy and consular officials. However, Arizona has not followed the Vienna Convention.
For example, Walter and Karl LaGrand were tried for murder in the first-degree during an attempted robbery of the Valley National Bank in Marana, Arizona in 1982. The LaGrand brothers were found guilty of murder in the first-degree, attempted murder in the first-degree, attempted armed robbery, and two counts of kidnapping. They were sentenced to death for murder.
The LaGrand brothers were citizens of the Federal Republic of Germany, and the German authorities learned about their sentences from the LaGrands themselves in 1992. The enforcement authorities in Arizona had never informed the German embassy that two German nationals were charged, let alone later convicted of any crimes. This was true despite the fact that Arizona law enforcement officials admittedly knew that the LaGrands were German citizens when they were arrested in 1982. When Germany did learn of this situation, officials immediately hit the diplomatic circuit in America in an attempt to protect their citizens.
The German president, the German Foreign Minister, and the German Ambassador all tried to block the execution of the LaGrands through diplomatic means. German officials conferred with their U. S. federal counter-parts in Washington D.C. and local Arizona counterparts hoping to stay the execution. Despite their best efforts, Walter LaGrand was executed by lethal injection in February, 1999, and his brother Karl was sent to the gas chamber in March.
As a result of Walter's execution and Karl's pending execution, Germany announced that it would sue the United States in the ICJ for violating the Vienna Convention on Consular Relations. Germany's argument was simple: the LaGrand brothers were denied consular access as required by international law. Further, Arizona officials violated the Vienna Convention because they knew that the LaGrand brothers were German citizens, and never informed the German embassy of the LaGrands' arrest. As the German Justice Minister compellingly argued, "the obligation to respect international law is valid for everyone . . . respecting international law cannot be a one-way street."
After the ICJ issued an order to stay the execution based on the violation of the Vienna Convention, Germany turned to the U. S. Supreme Court. Under the Supreme Court's original jurisdiction, the Federal Republic of Germany moved for leave to file a bill of complaint and sought a preliminary injunction against the United States and Governor Jane Dee Hull of Arizona in order to stay the execution of the Karl LaGrand. In a decision citing the interaction of international law, federal law, and Arizona law, the Supreme Court denied Germany's request. The majority decision noted
"[p]laintiffs seek, among other relief, enforcement of an order issued this afternoon by the International Court of Justice . . . directing the United States to prevent Arizona's scheduled execution . . . With regard to the action against the United States, which relies on the ex parte order of the International Court of Justice, there are imposing threshold barriers. First, it appears that the United States has not waived its sovereign immunity. Second, it is doubtful that Art. III § 2, cl. 2, provides an anchor for an action to prevent execution of a German citizen who is not an ambassador or consul."
The Supreme Court found that the Vienna Convention did not apply in this particular situation involving the intersection of federal law and international law.
The German government's other claim was that it could bring an action against the sovereign state of Arizona. However, the Supreme Court found that "a foreign government's ability here to assert a claim against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles." As a result, the Court held that Germany did not have a basis for their claim against Arizona.
The United States' primary argument against the stay of execution was that the action was too late-"this action was filed within only two hours of a scheduled execution that was ordered on January 15, 1999." Yet, Justice Breyer's dissenting opinion argued that Germany had good reasons to bring the suit so late. Specifically, Germany did not become aware of the LaGrands' situation until they were already sentenced to death. Further, Justice Breyer felt that since both the ICJ and a sovereign nation, Germany, had requested a preliminary stay of execution, such a stay should be granted in light of the jurisdictional and international legal issues involved.
Arizona did not follow international law because it failed to notify the German consulate about the arrest of German citizens. Arizona was bound by the Supremacy Clause to follow the Vienna Convention, but did not. Neither Arizona nor Governor Jane Dee Hull ever explained why they did not follow the Vienna Convention, especially when they admitted that they did know the LaGrands were German citizens. Further, the federal government did not follow its obligations under the Vienna Convention. Despite the best efforts of the German government and despite the fact that the U.S. violated international law, the LaGrand brothers were put to death.
In a similar case, Jose Villafuerte was convicted of first-degree murder, kidnapping, and theft of property in Williams, Arizona in 1983. Villafuerte was a Honduran citizen at the time he was convicted. Villafuerte was informed of his Miranda rights by a Spanish speaking officer, but he was never informed of his right to contact the Honduran embassy or consulate as required by the Vienna Convention.
In his federal habeas corpus petition, Villafuerte argued that Arizona never informed him of his consular rights, and therefore his conviction was not valid. He pursued the Vienna Convention issue in a habeas corpus petition to the Ninth Circuit. The Ninth Circuit agreed that he was never informed of his rights under the Vienna Convention. The court was then faced with a conflict between the supremacy of the international treaty and domestic law.
The Ninth Circuit resolved this conflict by citing to the Supreme Court's rejection of a similar claim in a Virginia case, Breard v. Greene. Breard was a Paraguayan citizen who was arrested, convicted, and sentenced to die. He also claimed that he was not informed of his Vienna Convention rights, and the Supreme Court found that the Vienna Convention violation claim was "procedurally defaulted" because it had not been raised in state court. The Ninth Circuit applied the Breard ruling and found that Villafuerte's Vienna Convention claim was also procedurally defaulted, and did not fall into one of the two "gateway exceptions" because it was not based on a new rule of constitutional law.
The Honduran government's diplomatic overtures fell on deaf ears when they pled for Villafuerte's life. Again, the State Department admitted a violation of the Vienna Convention had occurred. Nevertheless, they refused to intervene in Arizona's decision to execute Villafuerte; he was executed by lethal injection on April 22, 1999.
C. Favorable State Law–Delaware
One case brought in state court has resulted in a favorable holding for the concept of an individual right and a remedy for Vienna Convention violations. In Delaware v. Reyes a Delaware trial judge suppressed statements that were taken by police prior to a defendant being informed of his rights under the Vienna Convention. Reyes was the first opportunity for a Delaware court to consider the right to consular notification in a criminal case. The judge cited Article 36(2) of the treaty, which "provides that the laws and regulations of the receiving State must allow full effect to be given to the rights" set out in the body of the treaty. The decision also invoked the observation of the District Court of the Virgin Islands in United States v. Superville that the right to consular notification has been asserted by the U.S. and "[r]eciprocity is the foundation of international law."
In making its determination, the Delaware trial court considered both the standards used in INS deportation cases, which turns on the question of prejudice to the alien being deported, and the Supreme Court's holding in Breard. The Supreme Court decision was in part based on the fact that "the procedural rule in the United States requires that assertions of error in criminal proceedings must first be raise in state court" in order not to be procedurally defaulted. Further, although the court did not hold that prejudice necessarily results from violation of the Vienna Convention, the violation in Reyes was, in fact, prejudicial. The judge dismissed the state's argument that defendant was required to prove that contacting the consulate would have "would have changed his decision to speak to the police" as "meritless."
The court found that there was no reason to claim that the defendant lacked standing under the treaty and that, because Reyes raised the suppression argument at the pre-trial stage, suppression of the statement was an available remedy under Delaware state law and the Vienna Convention. Moreover, since the Supremacy Clause makes the Vienna Convention "the law of the land," and the police conduct violated the treaty, that violation was sufficient justification for the suppression. The state tried to appeal the decision to the Delaware Supreme Court, but the Court would not grant leave to appeal.
D. The Consequences of Vienna Convention Violations
Under international law, the recognized remedy for a treaty violation is to restore the status quo and return the parties to the position they would have occupied had the violation not taken place. Clearly, though, this is not possible when the violation results in the execution of a citizen of another sovereign nation. Since satisfactory reparations are impossible, it would be better to avoid such violations altogether, rather than face other potential international repercussions.
First, every time that the United States violates, or is perceived to violate, the Vienna Convention, such a violation inevitably decreases American international credibility. International bodies are already demonstrating their disapproval because the United States is violating international law pertaining to the Vienna Convention. For example, the United Nations placed the United States on Amnesty International's list of human rights violators for the first time ever in 1999. The State Department has not hesitated to inform foreign countries when they are in violation of the Vienna Convention. However, the United States has also violated the Vienna Convention. If the United States continues to violate the Vienna Convention, the perception that this nation does not care about and does not follow international law will grow. This will diminish the international credibility America invokes in its fight against the spread of weapons of mass destruction and terrorism.
Second, the United States should consider the effect that treaty violations will have on international reciprocity. If the United States expects other countries to abide by the Vienna Convention, then it must also abide by the same obligations. One of the State Department's duties is to protect Americans abroad. Considering that the State Department has designated the Vienna Convention as being of immense significance, and has pressured other nations to observe the treaty, the United States has done a poor job of fulfilling its own reciprocal obligation of consular notification. This blatant disregard for consular rights suggests that the United States will only follow the Vienna Convention when it suits its purposes. Sadly, American officials do not seem to be as concerned as they should be about the consequences of treaty violations by state officials.
One possible result of the United States' disregard for international treaties is that other nations may not feel compelled to abide by their treaty obligations either. Such a response could put Americans abroad in danger. "United States citizens are scattered about the world-as missionaries, Peace Corps volunteers, doctors, teachers and students, as travelers for business and for pleasure. Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example. Public officials should bear in mind that ‘international law is founded upon mutuality and reciprocity. . . .'"
When two or more nations sign an international agreement, each party expects the other to follow the obligations under the agreement. Given the nature of international law, one of the only means to enforce a treaty is by voluntary consent. When a party does not consent or retracts that consent, the international treaty loses enforcement. Therefore, when deciding not to consent and not to comply with an international treaty, the party must consider the possible ramifications of treaty violations. If American officials do not follow the established remedies, the U.S. stands to lose the benefits of international and reciprocal treaty obligations.
IV. The Possible Conflict Solutions
The United States has an obligation, under Article 36 of the Vienna Convention, to inform foreign nationals of their right to consular notification. When international law is violated, redress should be available to the injured parties. Moreover, since the United States has violated international law, then it must take some action to make reparations and strengthen its commitment to and law enforcement's compliance with the Vienna Convention.
A. Awareness Remedy
The LaGrand and Villafuerte cases illustrate that law enforcement officials and attorneys are unaware that the Vienna Convention rights exist. One possible remedy is to take an example from Miranda and require law enforcement officials to read certain rights to an individual under arrest. Law enforcement officials should have a set of Vienna Convention rights that they can read to a foreign national who is under arrest in America. A basic understanding of the Vienna Convention might just be the best remedy.
B. Judicial Remedy
When courts have directly interpreted the Vienna Convention, foreign nationals have not been able to get the relief they sought. When a Vienna Convention claim has been argued, the courts have avoided the conflict between international law and domestic law by stating that the international claim is procedurally flawed or that there is no individual right. Hence, if defendants bring up the Vienna Convention claim in an indirect manner, realistic relief might result.
C. Indirect Argument-INS and United States v. Calderon-Medina
Congress codified the consular notification provision of article 36 of the Vienna Convention in the regulations of the United States Immigration and Naturalization Service (INS), at 8 C.F.R § 236.1(e). Under this regulation, if the INS detains a foreign national, the INS officer is required to inform the individual of the right to communicate with a consulate official. The right to communicate with consul first came up in the context of deportation hearings conducted by the INS. Early review of INS deportation cases did not require a direct interpretation of the Vienna Convention because those cases arose in the context of implementing an INS regulation. Nonetheless, the parties indirectly argued the Vienna Convention.
In the Ninth Circuit case of United States v. Calderon-Medina, the defendants argued that the INS violated 8 U.S.C §1326 in the context of a deportation hearing. The defendants claimed that, as foreign nationals, they had a right to communicate with their consulate based on the INS statute. The statute reads "every detained alien shall be notified that he may communicate with the consular or diplomatic officers of the country of his nationality."
On remand, the court stated that the defendants should be allowed to demonstrate and prove that the INS violation of the regulation prejudiced them in such a way as to affect potentially the outcome of their proceedings." The court's decision did not directly comment on the Vienna Convention, but a footnote in the opinion did discuss the treaty.
Footnote six stated that the INS regulation requiring aliens be given a right to communicate with their consulate was "intended to ensure compliance with the Vienna Convention on Consular Relations." Further, District Judge Takasugi, in his dissenting opinion, commented:
"[t]his nation must manifest integrity in our treaties with foreign countries. To honor the provisions of Article 36 of the Vienna Convention on Consular Relations, as noted in footnote 6 of the majority opinion, mandates a sense of justice and decency. To do anything less is a severe erosive compromise of our very essence equal if not greater than a Constitutional violation."
While the Vienna Convention was not directly used in favor of the defendants, it did play a role in the outcome of the decision. In this way, the courts have held that a violation of the INS regulation requiring consular communication will invalidate deportation proceedings if prejudice is shown. Thus, the Vienna Convention argument had more success in an indirect way than the direct attacks made in the LaGrand case for example.
Eventually, the United States Supreme Court will have to directly address the conflicts inherent in the Vienna Convention and domestic law. In the meantime, the American judiciary, both at the state and the federal level, should pay more attention to the Vienna Convention on Consular Relations. Based on the plain language of Article 36 of the treaty, statements by the State Department, and customary international law, the Vienna Convention confers specific rights on individual foreigners. Under the Supremacy Clause, the rights contained in the treaty are therefore binding on the states, and should be treated accordingly. The principles of international law demand that an adequate domestic remedy be provided for violations of treaty rights granted to citizens of other nations when they are within our borders.
 Member The State Bar of California #230167; L.L.M Trial Advocacy 2004 California Western School of Law; JD Magna Cum Laude 2003 Gonzaga University School of Law; BA Cum Laude History and Political Science 2000 Arizona State University. I want to thank former professor from Gonzaga University School of Law Frank Conklin, Supervising Attorney at University Legal Assistance Alan McNeil, Assistant Federal Public Defenders of Arizona Dale Baich and Ken Murray, and Executive Director Federal Defenders of San Diego Mario Conte.
 Doug Cassel, World Court to Texas: Follow Your Own Laws, Chicago Tribune, April 11, 2004, at C1.
 See id.
 See generally John Cary Sims & Linda E. Carter, Representing Foreign Nationals: Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool, The Champion, Sept/Oct 1998, available at http://www.nacdl.org/CHAMPION?Articles/98sep01.htm.
 Vienna Convention on Consular Relations and Optional Protocol on Disputes, December 24, 1969, 21 U.S.T 77, 596 U.N.T.S 261 (Hereinafter, Vienna Convention).
 Vienna Convention, supra note 5, at Art. 36-Referring to Article 36 of the Convention that states that law enforcement officials must notify foreign nationals of their rights enclosed in the convention.
 U.S. Dep't of State, Pub. No. 10518, Consular Notification and Access: Instructions for Federal, State and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them at 13 (1998).
 See Ohio v. Issa, 752 N.E.2d 904, 914 (2001).
 See id. at 915.
 See generally United States v. Doe, 219 F.3d 1009 (9th Cir. 2000); United States v. Heredia-Fernandez, 756 F.2d 1412 (9th Cir. 1985); New York v. Turkenich, 137 A.D.2d 363 (N.Y. App. Div. 1988); see Arizona v. Rivera, 733 P.2d 1090 (1987); Ohio v. Garcia, 750 N.E.2d 634 (Ohio Ct. App. 2001).
 Restatement (Third) of Foreign Relations Law §101 (1987).
 See Albert Ehrenzweig & Erik Jayme, Private International Law A Comparative Treatise on American International Conflicts Law, Including the Law of Admiralty 4-11 (Oceana Publications, Inc. Volume 2 1973) (1973).
 See Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614, 636, 639 (1985); Publicis Communication v. True N. Communications, Inc. 206 F.3d 725, 728 (7th Cir. 2000); Sedco v. PEMEX, 767 F.2d 1140, 1145-46, and nn. 12 & 13 (5th Cir. 1985); In Re Transrol Navegacco 782 F.Supp 848, 850 (S.D.N.Y 1991).
 Ehrenzweig & Jayme, supra note 12 at 1-2, 4-11, 20-49.
 Id. at 28.
 See id. at 8.
 Id. at 7.
 Vienna Convention on the Law of Treaties, May 23, 1969, art. 27, 8 I.L.M. 679, 1155 U.N.T.S. 331 (Hereinafter, Law of Treaties).
 See Ehrenzweig & Jayme, supra note 12 at 8-11 (1973).
 See id. at 4-11.
 See id.
 See id.
 See id.
 See id. at 28 ("We have observed how, after a long and complex process of trial and error, the Due Process has come to supply an affirmative definition of the conflicts jurisdiction of those states of the Union, which have adjusted the reach of their statutes, expressly or impliedly, to the maximum permissible under the Supreme Court's interpretation of the Clause.").
 See id. However, although international law does mainly impact federal law first, it can also conflict with local state law.
 See, e.g., Vienna Convention, supra note 5 at art. 36; Luke T. Lee, Consular Law and Practice 3-5 (2d ed. 1991); 42 U.S.C. § 1983 (2004), which was used as the basis of Paraguay's argument against Virginia's execution of Breard in Rep. of Paraguay v. Allen, 949 F.Supp. 1269 (E.D. Va. 1996).
 See id.
 See Vienna Convention, supra note 5.
 See id.
 See Vienna Convention, supra note 5; see generally Luke T. Lee, Vienna Convention on Consular Relations, With Texts and Commentaries on Vienna Convention on Diplomatic Relations 16 (A.W. Sijthoff-Leyden / Rule of Law Press, Durham, N.C. 1966).
 See Vienna Convention, supra note 5; see also Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l L. 565, 568 (1997). The United States did wait to sign the treaty. The U.S. government believed that the treaty did not go far enough in providing consular relations when a foreign national is arrested. This is ironic because the U.S. has not followed the Vienna Convention on many occasions.
 See Vienna Convention, supra note 5 at art. 36 (The specific language of article 36 is "the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.")
 See id.
 See id.
 See id.
 See Vienna Convention, supra note 5 at art. 36.
 See Sims & Carter, supra note 4.
 See Cara S. O'Driscoll, The Execution of Foreign Nationals in Arizona: Violations of the Vienna Convention on Consular Relations, 32 Ariz. St. L.J. 323, 327-28 (2000).
 U.S. Const. art. VI, cl. 2.
 See id.
 See Bradley, Curtis, Breard. Our Dualist Constitution, and the Internationalist Conception, 51 Stan. L. Rev. 529, 540 (1999); see also TWA v. Franklin Mint Corp., 466 U.S. 243, 253 (1984).
 See Vienna Convention, supra note 5 at 21 U.S.T. 77.
 See id. at 190 (the United States signed the treaty without including any reservations).
 See Law of Treaties, supra note 18 at art. 26.
 See, e.g., Consular Notification and Access, supra note 7 at 13.
 See id.
 See id. at 44.
 See id; see also U.S. Const. art. VI.
 See Consular Notification and Access, supra note 7 at 13; see also Arthur W. Rovine, U.S. Dep't of State, Digest of the United States Practice in International Law 161 (1973) ("The obligations of consular notification and to uphold the Vienna Convention is ‘of the highest order and should not be dealt with lightly.'").
 See id.
 See William J. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. Transnat'l L. 257, 270 (1998).
 See U.S. Dep't of State, Digest of the United States Practice of International Law 249 (1975).
 See id.
 See id. (The State Department declared that: "recognition of these rights is prompted in part by considerations of reciprocity. States accord these rights to other states in the confident expectation that if the situation were to be reversed they would be accorded equivalent rights to protect their nationals. The government of Syria can be confident that if its nationals were detained in the United States the Appropriate Syrian officials would be promptly notified and allowed prompt access to these nationals.")
 See id.; see also Wire Services, Iranians Show Restraint Marking Embassy Attack, The Record (Bergen County, NJ), November 4, 1999, at A18.
 See id.
 See id. (The International Court of Justice is a forum that settles disputes between foreign countries, and decide questions of international law including interpretation of an international treaty.)
 See id.
 See Issa, 752 N.E.2d at 915.
 See Jonathan I. Charney, Judicial Deference in Foreign Relations, 83 Am. J. Int'L. 805, (1989).
 See United States v. Calderon-Medina, 591 F.2d 529, 532 (9th Cir. 1979) (The court held that the prosecution for illegal reentry following deportation would be precluded if aliens could demonstrate prejudice resulting from regulation violations by the INS in the original deportation and if district court determined that the violations harmed the alien in such a way as to affect the potential outcome of the deportation proceedings, but showing the violations without prejudice was insufficient.)
 See United States v. Li, 206 F.3d 56, 63-64 (1st Cir. 2000)(The State Department's position is that only diplomatic or political remedies are available for breaches of the Vienna Convention.) All of the federal cases cited in this article have been prosecuted by the Department of Justice, which has adopted the State Department's position as the basis of its arguments.
 Li at 61-62 (citing United States v. Chaparro-Alcantara, 37 F.Supp.2d 1122, 115 (N.D. Ill. 1999)).
 Li at 57. The remedies sought included overturning convictions and sentences, dismissal of indictments and suppression of evidence obtained in violation of the Vienna Convention.
 United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000).
 Id. at 883-884.
 Breard v. Greene, 523 U.S. 371, 376 (1998).
 Li, 206 F.3d at 68-78 (Torruella, C.J., dissenting); Lombera-Camorlinga, 206 F.3d at 888-896 (Declaring that the majority opinion was "equivalent to securing enforcement [of the Convention] by a toothless, clawless lion.").
 Li v. United States, 531 U.S. 956 (2000); Lombera-Camorlinga, 206 F.3d 882, cert. denied sub nom. Oropeza-Flores v. United States, 531 U.S. 1101 (2001).
 Arizona has not only violated the Vienna Convention, but has allowed the confessions of the defendants to be admitted into evidence in their trials, an outcome that would not normally result in the case of confessions taken in violation of the Miranda rule.
 U.S. Const. art. I., § 8, cl. 3 (granting Congress the power to "regulate commerce with foreign nations") and art. 2, § 2, cl. 2 (granting the President the power "by and with the Advice and Consent of the Senate, to make Treaties").
 See U.S. Const. art. VI cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."); see also United States v. Pink, 315 U.S. 203, 223 (1942) (holding that individual states may not enter into treaties and may not regulate international affairs); Gregory Dean Gisvold, Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities, 78 Minn. L. Rev. 771, 786 (1994)(Even when the treaties involve areas in which the state would otherwise have concurrent authority to legislate, states do not have the right to enter into treaties under the Constitution.)
 See id. at 786; see also Missouri v. Holland, 252 U.S. 416 (1920) (dealing with a treaty between the United States and Great Britain from 1916 regulating the killing of migratory birds. The Court held that Congress, not the state of Missouri, has the power to make all laws necessary and proper for carrying into execution of the treaty. Missouri has no authority to regulate such birds because the state has no ownership of nor exclusive right to kill them. This case is a good example of how an international treaty takes precedence over local needs); see also Ware v. Hylton, 3. U.S. 199 (1796).
 Arizona v. LaGrand, 734 P.2d 563, 565 (1987).
 Id. at 23, 734 P.2d at 565.
 Fed. Rep. of Germany v. United States, 526 U.S. 111, 112-113 (1999)
 See id. at 111-113.
 See id.
 See generally Fed. Rep. of Germany v. United States, 526 U.S. 111 (1999).
 See id.; see also O'Driscoll, supra note 38 at 331-32; Anna Kuchment & Malcolm Beith, A Matter of Execution, Newsweek, Nov. 27, 2000, at 3.
 Fed. Rep. of Germany, 526 U.S. at 111-12.
 See id.; see also, generally, David Schwartz, Plan to Execute German Killers Attracts Scrutiny; Arizona's Intent to Send Brothers to Gas Chamber Draws Wide Protest, The Dallas Morning News, Feb. 22, 1999, at 1A. Despite that headline, only Walter LaGrand went to the gas chamber, on March 4, 1999, while Karl LaGrand was executed by lethal injection on February 24, 1999, see O'Driscoll, supra note 38 at 332-33.
 Fed. Rep. of Germany, 526 U.S. at 112-113 (Breyer, J., dissenting).
 See Schwartz, supra note 84.
 See id.; see also Fed. Rep. of Germany, 526 U.S. at 112.
 See Kuchment & Beith, supra note 82 ("As for the LaGrand brothers, Arizona Attorney General Janet Napolitano admits the state [Arizona] denied them their legal rights.")
 Fed. Rep. of Germany, 526 U.S. at 111.
 Id. at 112.
 See Fed. Rep. of Germany. 526 U.S. at 113.
 See id.
 See id.
 See id. at 111.
 See Arizona v. Villafuerte, 690 P.2d 42, 44-45 (1984).
 See Villafuerte v. Stewart, 142 F.3d 1124 (9th Cir. 1998).
 See id. at 1125.
 See id.
 See id.
 See id.
 523 U. S. 371 (1998); see Villafuerte, 142 F.3d 1124.
 See Breard, 523 U.S. at 372-73.
 See id.
 See Villafuerte, 142 F.3d at 1125.
 See Christina Leonard, Con Dies Despite Pleas: Vatican, President of Honduras Intervened, Arizona Republic, Apr. 22, 1998, at Al.
 See U.S. Won't Intervene in Arizona Death Case, N.Y. Times, Apr. 22, 1998, at A16.
 See id.; see also Leonard, supra note 111.
 Delaware v. Reyes, 740 A.2d 7, 14 (1999).
 Id. at 8.
 United States v. Superville, 40 F.Supp.2d 672, 676 (D. VI. 1999)(Citing Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998)(Butzner, J., concurring)).
 Reyes at 11-12.
 Id. at 12.
 Id. at 23.
 See id. at 14.
 Delaware v. Reyes, 765 A.2d 953 (2000).
 "The essential principle of international law is that reparation must, as far as possible, wipe out all the consequences of the illegal acts and reestablish the situation which would, in all probability, have existed if that act has not been committed." Restatement (Third) of the Law of Foreign Relations, § 901 (1987).
 See Elizabeth Olson, Good Friends Join Enemies to Criticize U.S. on Rights, N.Y. Times, March 28, 1999, at 1-9.
 See People v. Madej, 739 N.E.2d 423, 431 (Ill. 2000) (Justice McMorrow, concurring in part and dissenting in part) (quoting Hilton v. Guyot, 159 U.S. 113, 130 (1895)).
 See William J. Aceves, International Decisions: Application of the Vienna Convention on Consular Relations (Paraguay v. United States) and Breard v. Greene, 118 S. Ct. 1352, 92 Am. J. Int'l L. 517, 523 (1998)("[t]reaties represent reciprocal obligations between countries").
 See International Paper Co. v. Schwabedissen, 206 F.3d 411 (4th Cir. 2000).
 See id.
 See Gregory Dean Gisvold, supra note 73 at 792.
 See LaGrand, 734 P.2d 563 (Ariz. 1987); See Villafuerte, 142 F.3d 1124 (9th Cir., 1998); see also Justice Breyer's dissent from the denial of LaGrand's petition for a stay of execution at 526 U.S. 1001 (1999).
 See Miranda v. Arizona, 384 U.S. 436 (1966).
 See Victor M. Uribe, Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice, 19 Hous. J. Int'l L. 375, 423 (1997).
 See, e.g., LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998); Villafuerte, 142 F.3d 1124 (9th Cir. 1998).
 See LaGrand, 133 F.3d at 1261 (9th Cir. 1998); Villafuerte, 142 F.3d at 1125.
 "Every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States." 8 C.F.R. § 236.1(e) (2004).
 See id.
 See United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980); see Calderon-Medina, 591 F.2d 529 (9th Cir. 1979).
 See id.
 See Rangel-Gonzales 617 F.2d at 530; Calderon-Medina 591 F.2d at 531.
 See Calderon-Medina, 591 F.2d at 530.
 See id. at 530
 Id. at 532.
 Id at 531 n.6.
 Id. at 532.