Vol 38. No.1 Fall 2013 | School of Law | SIU

Vol 38. No.1 Fall 2013

THE 50TH ANNIVERSARY OF THE VIENNA CONVENTION ON CONSULAR RELATIONS

ARTICLES

Vienna Convention on Consular Relations:  In Retrospect and into the Future

John B. Quigley ........................................................................... 1

In the half-century since the adoption of its text, the Vienna Convention on Consular Relations has done great service by providing specificity on the obligations of receiving States to let consuls do their work, in particular their work of protecting co-nationals who find themselves in the receiving State.  By virtue of a jurisdictional protocol appended to the Vienna Convention on Consular Relations, the International Court of Justice has been opened to state parties who seek to hold other state parties to their consular law obligations.  In recent years, the Vienna Convention on Consular Relations has featured prominently as a protective device for persons arrested on criminal charges outside their state of nationality.  The International Court of Justice has given details on the obligations of a receiving State in this situation, thereby making clear how this important protective device must be implemented.

Rendered Meaningless?  Security Detentions and the Erosion of Consular Access Rights

Mark Warren ............................................................................. 27

From incommunicado confinement to extraordinary renditions, the harsh countermeasures adopted worldwide in response to the threat of terrorist attacks have profoundly undermined the basic rights of detained foreign nationals.  One aspect of these controversial responses merits more attention than it has so far received: the widespread denial of timely consular access to foreign detainees suspected of terrorist activities, in breach of the Vienna Convention on Consular Relations and other binding treaty obligations.

This Article explores the erosive effect of security detentions on the universality of consular access rights.  It includes a survey of bilateral consular agreements and anti-terrorism treaties, two important but often overlooked sources of authority on the contemporary understanding of consular notification and access obligations.  The Article also summarizes the corrective recommendations now emerging from public inquiries, foreign service policy reviews, intelligence agencies, and human rights colloquia.  This diversity of perspectives offers innovative proposals for rebuilding the essential safeguard of consular protection to meet the rigors of a new and threatening global landscape.

Reflections on the 50th Anniversary of the Vienna Convention on Consular Relations

Cindy Galway Buys ................................................................... 57

April 2013 marked the 50th anniversary of the signing of the Vienna Convention on Consular Relations (VCCR), thus providing an excellent opportunity for the consular community to reflect on the development of consular relations law since the adoption of the VCCR and to consider what the future may hold for further development of consular law.  The VCCR is the first and only comprehensive multilateral agreement governing consular relations and is one of the most widely adopted treaties today with 175 member states.  It was drafted taking into account centuries of customary practices among diplomats and consuls and several bilateral treaties that addressed consular functions.  Its primary purposes were to codify these customary practices and to further define the work of consulates in promoting relations between states and in protecting the interests of a state and its nationals in the territory of another state.  Although the VCCR addresses many consular functions, two of the most litigated issues under the Convention are the scope of consular immunity and the right of consular notification and access.  This Article addresses developments in the law and future challenges with respect to both of these issues.

With respect to the scope of consular immunity, U.S. courts continue to define its parameters on a case-by-case basis as claims are brought against consular officers.  And new technologies present challenges to the immunities provided for consular communications.  Case law and diplomatic practice likewise continues to develop and refine the parameters of the rights of consular notification and access.  In the United States, law enforcement authorities are not always well informed regarding the right of consular notification and have frequently failed to notify foreign defendants who are arrested or detained of their right to be in contact with their consulates.  These failures have led to litigation regarding whether and how the right of consular notification may be enforced in the U.S. legal system.  This litigation has raised issues regarding whether individuals may bring a private cause of action under the treaty, what the duty to provide consular notification “without delay” means, and what remedies are available for a violation of the right. 

The VCCR has been successful in regularizing consular relations in many aspects.  It also has been successful in raising awareness regarding the right of consular notification and the need for consular assistance by foreign defendants.  However, few states have taken advantage of the dispute resolution procedures provided by the treaty and remedies for violations of the treaty have been unsatisfactory to date.  Thus, more work remains to ensure that states and their consular officers are able to give full effect to the guarantees of the VCCR.

Consular Notification for Dual Nationals

Mark E. Wojcik .......................................................................... 73

The Vienna Convention on Consular Relations (VCCR) requires parties to inform foreign nationals who are arrested or detained that they have the right to have their consulates notified of that arrest or detention.  The VCCR is silent, however, as to what must be done when the person is also a citizen of the country where he or she was arrested or detained.  When Mexico sued the United States for violating rights of its nationals under the VCCR, Mexico dropped a claim for one of its nationals who was also a citizen of the United States.  This Article argues that the right of consular notification belongs not only to the person arrested or detained, but also to the other country, and that the right to consular notice should be given to dual nationals.

COMMENTS

The Best of Both Worlds: Finding Middle Ground in the Heated Debate Concerning Issuing Driver’s Licenses to Undocumented Immigrants in Illinois

Dean W. Davis .......................................................................... 93

For most people, possessing and maintaining a valid driver’s license is essential in order to live a normal life.  Without a license, common activities that most take for granted, namely lawful driving, become unmanageable.  The importance of procuring a driver’s license raises an important question:  to which people should this right extend?

In early January 2013, Illinois governor Pat Quinn signed into law Senate Bill 957 (SB 957), making Illinois only the fourth state to grant driving privileges to undocumented immigrants.  One of the primary reasons for the law’s passage was to combat the risk presented by the more than 250,000 undocumented immigrants residing in Illinois who drive uneducated, uninsured, and unlawful.  A survey of states that passed laws similar to SB 957 reveals that laws or programs granting driver’s licenses to undocumented immigrants are susceptible to abuse, particularly fraud.  To prevent the problems faced by other states, Illinois officials must critically examine the requirements of SB 957 and ensure sufficient safeguards are in place.  Specifically, Illinois should: (1) require fingerprints for all undocumented immigrant applicants in order to reduce the risk of fraud; (2) require proof of insurance prior to issuing an undocumented immigrant a driver’s license; (3) match the life of the undocumented immigrant’s insurance policy with the validity of his temporary driver’s license; (4) prepare responses to allegations  that SB 957 violates equal protection rights and promotes racial profiling; and (5) build incentives into SB 957 that encourage compliance with the program.  This Comment takes the position that adding restrictions and considering alternative approaches to SB 957 will help prevent fraud and benefit the undocumented immigrant population the bill truly intends to support:  the hard-working, law-abiding, productive contributors to society.

Code Bound and Down . . . A Long Way to Go and a Short Time to Get There:  Autonomous Vehicle Legislation in Illinois

Kyle L. Barringer .................................................................... 121

Autonomous vehicles and associated technologies are under development by most major automobile manufacturers and have been the subject of recent legislation in several states.  These vehicles that do not require human input to operate are likely not prohibited under current Illinois law, but it is in the best interest of the state to expressly authorize their use through legislation.  Such legislation would provide the judicial system with guidance in cases involving situations that may arise from autonomous vehicles, but are not covered under current law.  In addition, legislation would create a positive economic effect, help reduce the environmental impact of automobile usage, and likely reduce injuries and fatalities.  Thus, Illinois and its citizens will benefit from enacting autonomous vehicle legislation sooner, rather than later. 

CASENOTES

Standing Up Against More Ethanol:  The D.C. Circuit’s Restrictive View in Grocery Manufacturers Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012)

Christopher B. Sides ................................................................ 143

Standing is a party’s right to bring a cause of action in court.  Establishing this right is an important threshold to be crossed, because without it the merits of a party’s claim cannot be heard.  To have standing, a party must at least meet the “case and controversy” limitation of Article III of the U.S. Constitution, which requires the party to show an injury that was caused by the defendant’s conduct, and the injury must be one that can be redressed by the court.  The process of applying these requirements has ample historical precedent, but is complicated by the fact that each is “susceptible to imprecise definition.”

Ethanol is a biofuel that uses corn as a primary ingredient and is blended with traditional petroleum-based gasoline.  For many years ethanol has been blended at a ratio of ten percent, approved for use in many types of combustion engines.  The EPA, in 2010, approved an increase in the ratio of ethanol to fifteen percent to meet additional renewable fuel standards imposed by the Energy Independence and Security Act of 2007.  In Grocery Manufacturers Ass’n v. EPA, three industry groups claimed that the increased blend of ethanol would cause injury to their group constituents due to higher costs through competition for limited supplies of corn, additional infrastructure requirements, and wear and tear on engine components.  The D.C. Circuit found each group failed to meet at least one standing requirement, preventing the merits of their injury claims from being heard.  The result of the court’s holding effectively denied significant industrial interests to challenge increasing ethanol use and the logic employed implicates a high bar for any industry to do so in the future.  This Note discusses why the court’s denial to hear the claims due to lack of standing was in error for two of the three industry groups by contracting the logic and principles of precedential authority.

An Incomplete “Pass”:  Why the Illinois Supreme Court Dropped the Ball in Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 973 N.E.2d 880 (Ill. 2012)

Jessica R. Sarff ........................................................................ 165

In 2008, the Illinois Supreme Court upheld its longstanding position that the tort of fraudulent misrepresentation is limited to economic or business situations.  Four years later, however, in Jane Doe-3 v. McLean County Unit School District No. 5 Board of Directors, the Illinois Supreme Court virtually eliminated future fraudulent misrepresentation claims when it used the tort of willful and wanton conduct to hold that a school district owes a duty of care to children in another school district to accurately represent the number of days an educator worked for them on an employment verification form.

This Note examines the decision in Jane Doe-3 and argues that the Illinois Supreme Court was incorrect in creating this new cause of action not only because it allowed the plaintiff to “repackage” a nonviable fraudulent misrepresentation claim, but also because it completely disregarded common law rules relating to duty of care.  Though the court’s ruling furthers the public policy of protecting children, it also creates a civil cause of action where the legislature has chosen not to do so.  This Note argues that such a result not only disregards Illinois precedent, but also opens the door to poorly grounded negligence claims.