This Article explores the tension between the limited power of the federal government to implement the ICJ's ruling and the authority of individual U.S. states to effect criminal justice, in consideration of the Vienna Convention and the requirements of the Avena decision. The application of international law within the U.S. federal system will be analyzed, in particular with respect to the Avena, LaGrand, and Breard cases. In view of those cases, the efficacy of remedies in the U.S. federal system for the correction of past violations as well as the prevention of future breaches of the Vienna Convention will be addressed, with a look at possibilities for enforcement by the national government as well as possibilities for state action. Part I generally discusses the challenges that federal States encounter in the international legal community with a focus on attribution of acts to the State and the compliance of State organs. Part II illustrates the functioning of the U.S. federal system and its relationship with the international community, specifically concentrating on the status of treaties in the United States. Part III explains the doctrine of procedural default and provides a selected case analysis to understand the framework in which the Avena case is found. The cases highlight a broad array of Vienna Convention violations at the various levels of government. Part IV provides an in-depth outlining of Breard and LaGrand, the cases preceding Avena, and their relevant issues in order to provide a backdrop for Avena so as to facilitate a better understanding of the circumstances in which the case was decided. Part V presents a detailed look at the Avena case, which includes the facts and the decision and rationale of the ICJ. In addition, this Part reviews the recourse requested by Mexico in Avena. Part VI expounds upon the implementation of the ICJ decision in Avena and discusses whether U.S. states may choose to follow the decision of the ICJ despite a contrary ruling by the U.S. Supreme Court as seen in Breard, and whether Breard is actually valid precedent. In addition, two cases are offered to highlight the differences in approach. Part VII addresses the responsibility of the United States to provide avenues of redress. In addition, the doctrine of good faith will be emphasized as a necessity when taking action that entails international ramifications. Miscellaneous instances are then offered as examples of the exercise of good faith. Part VIII analyzes the various ways in which the U.S. federal government, responsible for its state organs, can secure state compliance with federal treaties, with an emphasis on federal action that can be taken. Part IX advocates the implementation of a Miranda-style warning as mandatory throughout the United States as a means of avoiding possible future Vienna Convention violations and concludes with a specific recommendation.
Revisiting Miranda After Avena: The Implications of Mexico v. United States of America for the Implementation of the Vienna Convention on Consular Relations in the United States,
29 Fordham Int'l L.J. 1068
Available at: http://ir.lawnet.fordham.edu/ilj/vol29/iss5/6