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The Vienna Convention on Consular Relations (VCCR):

Litigation Strategies

(Last updated July 2001)

Presented by :

Sandra L. Babcock

2520 Park Avenue South

Minneapolis, MN 55404

tel. 612/721-9414

fax 612/721-4075

email: sandrababcock@earthlink.net

I. Introduction

The Vienna Convention on Consular Relations (VCCR) is a ratified, multilateral treaty that grants all foreign nationals arrested in the United States a right to communicate and correspond with their consular officials. In addition, the VCCR requires that arresting authorities notify all foreign nationals “without delay” of their rights under the treaty. Unsurprisingly, law enforcement agencies have ignored their obligations under the VCCR for the last three decades. In recent years, there has been a spate of litigation over the rights enshrined in the VCCR, particularly in capital cases involving foreign nationals.

The courts have struggled with two issues raised by defendants asserting their rights under the VCCR. The first is whether the VCCR confers rights on individuals that may be invoked in criminal proceedings. Thus far, the courts are split on whether defendants have standing to assert their rights under the Convention; most courts have intentionally refrained from deciding the question.

The second issue is whether an individual is entitled to a legal remedy for the violation. Many attorneys have argued that courts should apply the exclusionary rule and suppress evidence obtained after the violation. Unfortunately, the great majority of courts have held that the exclusionary rule does not apply to a violation of Article 36. I am not aware of any court that has addressed the remedy of vacating a death sentence as a violation of international law. See discussion infra.

The courts have largely overlooked the best, and most comprehensive, judicial opinion regarding the enforcement of the Vienna Convention in death penalty cases. On October 1, 1999, the Inter-American Court of Human Rights concluded that the execution of a foreign national violates international law, if that person was not afforded the right to consular notification and assistance. OC-16/99, Inter-Am. Ct. H.R. (October 1, 1999)(available at http://coreteidh-oea.nu.or.cr/ci/PUBLICAT/SERIES.A/A_16_Ing.H., or through the website of the Organization of American States at www.oas.org).

On June 27, 2001, the International Court of Justice (“World Court” or “ICJ”) issued its first opinion regarding the rights established by article 36. LaGrand Case (Germany v. United States), 2001 I.C.J. 104 (Judgment)[hereinafter “LaGrand”]. The ICJ’s judgment is sure to affect future court rulings in the United States, since the decision conflicts in important respects with current U.S. case law. Among other things, the ICJ held that article 36 gives rise to individual rights. The ICJ also held that in cases involving “prolonged detention or severe penalties,” foreign nationals are entitled to more substantial remedy than a mere apology from the State Department. Finally, the ICJ concluded that the procedural default rules, as applied in the case of the LaGrand brothers, conflicted with the United States’ obligation to give full effect to the purposes of article 36. This decision is discussed in more detail, below.

The United States Department of State has taken the position that there is no legal remedy available for individuals whose rights are violated under the treaty. In December 1998, however, Secretary of State Madeleine Albright urged Texas Governor George Bush to commute the death sentence of Canadian Joseph Stanley Faulder as a remedy for the VCCR violation. Governor Bush ignored her plea, and Mr. Faulder was executed.

It appears the Bush administration will interpret the LaGrand decision quite narrowly. In the case of Gerardo Valdez, a Mexican national scheduled for execution in Oklahoma in July 2001, the State Department advised Governor Keating to consider whether the article 36 violation prejudiced Valdez at trial. The State Department refused to advise Keating that Valdez’s sentence be commuted to life in prison, even though the article 36 violation in Valdez’s case was arguably more compelling than in LaGrand. Although the Oklahoma Pardon and Parole Board had recommended commutation of Valdez’s sentence to life imprisonment, Keating rejected that recommendation and denied clemency. The Oklahoma Court of Criminal Appeals will soon set a new execution date for Valdez, and his lawyers will now seek enforcement of LaGrand in the courts.

II. Legal Arguments

A. Background

In 1963, the United States and several other nations signed the Vienna Convention on Consular Relations (“VCCR”). The treaty codified long-standing customs regarding consular relations, and provided important rights to foreign nationals facing criminal prosecution outside their native land. Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77. The United States Senate ratified the treaty in 1969; as a result, it became binding on the states under the Supremacy Clause of the United States Constitution. U.S. Const. Arts. VI, cl. 2. See also Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 252, 314 (1829). Federal regulations were subsequently adopted to ensure compliance with the consular notification provisions of the VCCR. 8 C.F.R. 242.2 (g); 62 Fed. Reg. 10312, 10360 (1997)(INS guidelines); 28 C.F.R. 50.5(a); 32 Fed. Reg. 1040 (1967)(FBI arrest procedures).

Article 36(1)(b) of the Vienna Convention requires that when a foreign national is detained, the country detaining him must give him immediate notice of his right to see and communicate with his consular representative:

(b) if he so requests, 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. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

Vienna Convention, art. 36(1) (emphasis added). In interpreting this provision, the United States Department of State has recognized that

The [Vienna Convention] requires that a foreign national be notified “without delay” of the right to consular assistance. . . In the case of an arrest followed by detention, the Department of State would ordinarily expect the foreign national to have been advised of the possibility of consular notification by the time the foreign national is booked for detention.

U.S. State Department, Consular Notification and Access (1998) (www.state.gov/www/global/legal_affairs/ca_notification/part3.html#when).

Article 36(1)(c) grants consular officers the right to visit, converse and correspond with a national who is in detention and to arrange for his legal representation:

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Finally, Article 36(2) provides that the laws and regulations of the receiving state must enable full effect to be given to these rights.

The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

B. History of Litigation in the United States

Before 1992, the only published opinions citing article 36 involved immigration proceedings. See, e.g., United States v. Rangel‑Gonzalez, 617 F.2d 529, 532 (9th Cir. 1980). In Rangel-Gonzales, the Ninth Circuit held that defendant’s indictment for illegal re-entry after deportation should have been dismissed, since he had shown prejudice resulting from a violation of article 36 in earlier deportation proceedings. Specifically, the defendant demonstrated he would have contacted his consulate if he had been aware of his right to do so. He also demonstrated that consular assistance likely would have led to a voluntary departure, rather than deportation. If his departure had been voluntary, the government would not have been able to charge him with illegal re-entry.

Relying on this precedent, criminal defense attorneys began litigating article 36 violations in the early and mid-1990s. Early decisions, such as the Fifth Circuit’s opinion in Faulder v. Johnson, 81 F.3d 515 (5^th Cir. 1996), a capital case, implied that a petitioner would be entitled to a remedy for the violation if he could demonstrate prejudice. Two years later, in an opinion respecting the denial of certiorari in another capital case, the United States Supreme Court likewise implied that a remedy might be available to a defendant who could demonstrate prejudice. Breard v. Greene, 523 U.S. 371 (1998).

Recent capital cases have reaffirmed the prejudice requirement first established in Faulder. See, e.g., United States v. Chanthadara, 230 F.3d 1237 (10^th Cir. 2000); United States v. Beckford , 2000 U.S. App. LEXIS 6752 (4^th Cir. 2000) (because jury sentenced defendant to life in prison, district court properly rejected his claim that Government’s death sentence should have been stricken). In Flores v. Johnson, 210 F.3d 456 (5^th Cir. 2000), however, the Fifth Circuit found the habeas petitioner’s VCCR claim to be Teague-barred.

Over time, an increasing number of federal courts have held that certain remedies simply are not available for a violation of article 36 – regardless of any demonstration of prejudice. In none of the following cases, however, was the defendant sentenced to death. See, e.g., United States v. Minjares-Alvarez, 2001 U.S. App. LEXIS 16867 (10^th Cir. July 27, 2001) (suppression of evidence not an available remedy); United States v. Jimenez-Nava, 243 F.3d 192 (5^th Cir. 2001)(same); United States v. Lombera-Camorlinga, 206 F.3d 882 (9^th Cir. 2000)(same); United States v. Chaparro-Alcantara, 226 F.3d 616 (7^th Cir. 2000)(same); United States v. Li, 206 F.3d 56 (1^st Cir. 2000)(neither suppression nor dismissal of indictment are available as remedy for violation); United States v. Page, 232 F.3d 536 (6^th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194 (11^th Cir. 2000); United States v. Chen Kevin, 1999 U.S. Cist. LEXIS 5728 (S.D.N.Y. April 7, 1999).

The legal landscape changed significantly on June 27, 2001, when the ICJ issued its decision in LaGrand. A summary of the LaGrand Court’s decision is attached as an appendix to this document.

C. Responding to Government Arguments

1. Individuals Have Standing To Invoke Their Rights Under the Vienna Convention

As noted above, most courts have side-stepped this issue. Nevertheless, there are a number of courts that have concluded – or at least implied – that individuals have enforceable rights under the Vienna Convention. In an opinion respecting the denial of certiorari in Breard v. Greene, 523 U.S. 371 (1998), the Supreme Court noted that the Vienna Convention “arguably confers on an individual the right to consular assistance following arrest.” See also Standt v. New York, 99 Civ. 11008 (S.D.N.Y. July 18, 2001); United States v. Rodrigues, 68 F. Supp. 2d 178 (E.D.N.Y. 1999)(stating that an individual probably does have standing, but declining to decide the issue conclusively); United States v. Esparza-Ponce, 7 F. Supp.2d 1084, 1095-96 (S.D. Cal. 1998)(same); United States v. Torres-Del Muro, 58 F. Supp. 2d 931 (C.D. Ill. 1999)(individual has standing); United States v. Hongla-Yamche, 55 F. Supp. 2d 74 (D. Mass 1999)(same); United States v. Briscoe, 69 F. Supp. 2d 738 (D. V.I. 1999)(“overwhelming weight of evidence” indicates that Vienna Convention confers private right of action); United States v. Superville, 40 F. Supp. 2d 672 (D. V.I. 1999)(same). But see Kasi v. Commwealth, 508 S.E.2d 57, 64 (Va. 1998)(Article 36 creates no legally enforceable individual rights).

Moreover, when the Executive branch submitted the VCCR to the Senate for ratification, it indicated that the treaty was "entirely self-executive [sic] and does not require any implementing or complementary legislation." S. Exec. Rep. No. 91-9, 91st Cong., 1st Sess. 2 & 5 (appendix) (statement by J. Edward Lyerly, Deputy Legal Adviser) (1969).

Most important of all, two international tribunals have conclusively found that article 36 gives rise to individual rights. In the LaGrand case, the ICJ voted fourteen to one that article 36, paragraph 1 creates an individual right to consular notification and access. On October 1, 1999, the Inter-American Court on Human Rights found that consular notification was one of the “minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial.” In OC-16/99, para. 122, Inter-Am. Ct. H.R. (October 1, 1999) – a right embodied in article 14(3)(b) of the ICCPR.

2. Remedies

To my knowledge, only one court has suppressed a defendant’s statement (in a murder case) as a remedy for the violation of the Vienna Convention. State v. Reyes, 740 A.2d 7 (Del. 1999). Other courts, as indicated above, have held that suppression is not an available remedy under the Vienna Convention.

Some courts, however, have implied that if a defendant could show he was prejudiced by a violation of the treaty, he would be entitled to some remedy – such as reversal of his conviction. See, e.g., Breard, 118 S. Ct. at 1355 (“it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial”); United States v. Ediale, 1999 U.S. App. LEXIS 28477 (4^th Cir. Nov. 2, 1999); Faulder v. Johnson, 81 F.3d 515 (5^th Cir. 1996); Waldron v. Immigration and Naturalization Serv., 17 F.3d 511 (2d Cir. 1993); United States v. Miranda, 65 F. Supp. 2d 1002, 1007 (D. Minn. 1999)(“no remedy is warranted unless the defendant can demonstrate that the Convention violation resulted in some form of prejudice”); United States v. Tapia-Mendoza, 41 F. Supp. 2d 1250, 1254-55 (D. Utah 1999)(“By rejecting the remedy of suppression of such statements this court does not foreclose the possibility that other remedies may be available.”); United States v. Martinez-Villava, 80 F. Supp. 2d 1152 (D. Colo. 1999)(rejecting defendant’s suppression motion on grounds that he failed to demonstrate prejudice); Chen Kevin, 1999 U.S. Dist LEXIS 5728.

You should confront these cases head on, and argue that they all failed to consider the authoritative decisions of the ICJ in LaGrand and of the Inter-American Court on Human Rights in OC-16/99.

In LaGrand, the ICJ squarely rejected a prejudice standard when reviewing the article 36 violation in that case. Germany argued that its consular officers would have been able to intervene and present a “persuasive mitigation case” at trial which “likely would have saved” the lives of the LaGrands. Germany’s inability to provide consular assistance was directly attributable to the U.S. violation of article 36 (1)(b). Germany further argued that its later intervention could not remedy the “extreme prejudice” created by the [ineffective assistance of] counsel appointed to represent the LaGrands.

The Court accepted Germany’s arguments, and rejected the United States’ position that Germany’s assertions were speculative and unfounded. (The United States argued that some mitigating evidence had been presented at trial, and that Germany’s intervention would not have persuaded the sentencing judge to be more lenient).

The Court concluded that the rights set forth in article 36(1)(a) and 36(1)(c) are interrelated with the rights delineated in 36(1)(b). “It follows that when the sending State is unaware of the detention of its nationals due to the failure of the receiving State to provide the requisite consular notification without delay. . . the sending State has been prevented for all practical purposes from exercising its right under Article 36, paragraph 1. It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen.”

Even more important, the LaGrand Court held that an apology was not a sufficient remedy in cases where foreign nationals have not been advised without delay of their rights under article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties. (para. 123)

The Court noted that in cases where individuals are subject to prolonged detention or severe penalties, “it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention.” Unfortunately, the Court did not expressly state that a death sentence must be vacated, or a conviction overturned.

In OC-16/99, a comprehensive, 77-page analysis of article 36,[1] the Inter-American court heard arguments from several countries, including the United States, as well as several non-governmental organizations. The court squarely rejected the arguments of the United States, which had argued the treaty created no individual rights. Instead, the court held that the right to consular notification was analogous to other basic due process rights contained in Article 14 of the International Covenant on Civil and Political Rights. The court recognized that the right to consular notification is “among the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial.” OC -16/99 at 70, para. 122. The court reached this conclusion after observing that the legal system must resolve factors that contribute to inequality before the law. Id. at 71, para. 119. Most important, the court concluded that the execution of a foreign national whose consular notification rights were violated would constitute an “arbitrary deprivation of life” in violation of the International Covenant on Civil and Political Rights and the American Convention on Human Rights. Id. at 76, para. 137.

In his concurring opinion to OC-16, Judge Cancado Trinidade concisely summarized the special needs of foreign citizens with regard to consular notification:

The action of protection, in the ambit of the International Law of Human Rights, does not seek to govern the relations between equals, but rather to protect those ostensibly weaker and more vulnerable. Such action of protection assumes growing importance in a world torn by distinctions between nationals and foreigners (including de jure discriminations, notably vis-à-vis migrants), in a “globalized” world in which the frontiers open themselves to capitals, inversions and services but not necessarily to the human beings. Foreigners under detention, in a social and juridical milieu and in an idiom different from their own and that they do not know sufficiently, experiment often a condition of particular vulnerability, which the right to information on consular assistance, inserted into the conceptual universe of human rights, seeks to remedy.

OC-16/99, concurring opinion of Trinidade, J., at para. 23. The opinion of the majority in OC/16, as well as the concurring opinions, illustrate that consular notification is no mere formality – and is indeed a fundamental right. You should argue that this provision – like the human rights treaties signed in the last fifty years – are unlike the treaties of old, which regulated affairs between states. Article 36, like the ICCPR, is designed to protect the rights of individuals, and represents a broad consensus among the international community. As such, it is more akin to a constitutional right than a statutory entitlement.

In addition to relying on OC/16, you should argue that vacating the death sentence/conviction or suppressing evidence are remedies consistent with international law.

Under international law, the recognized remedy for a treaty violation is to restore the status quo ante, and return the parties to the position they would have occupied had the violation not taken place. “The essential principle of international law is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” Restatement (Third) of the Law of Foreign Relations, §901 R.N. 3. See also Ian Brownlie, State Responsibility 210 (1983)(“nullity is the necessary outcome of illegality” in international law). The International Court of Justice has repeatedly recognized that a violation of international law requires an annulment (i.e., a declaration that a transaction was never valid, or void ab initio) of the international wrong. See, e.g., Texas Overseas Petroleum Co./California Asiatic Oil Co. v. Government of the Libyan Arab Republic, (Dupuy, arb., Award of January 19, 1977)(reprinted in 17 I.L.M.1 (1978)(restitutio in integrum “may consist in annulment of the judgment of a national tribunal delivered in contradiction with international law”); Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J.6, at 37; Barcelona Traction, Light and Power Co., Ltd., 1970 I.C.J. 3 (opinion of Fitzmaurice, J.).

At least one scholar has advocated this approach in capital cases:

[i]f a defendant in a capital case submits a timely motion or petition to suppress or to quash a conviction, restoration of the status quo ante (by excluding any self-incriminating evidence the defendant may have given in the absence of any awareness that he or she could have communicated with the consular post) would be required, as a matter of good faith, given the finality of the death penalty.

Frederic L. Kirgis, “Restitution as a Remedy in U.S. Courts for Violations of International Law,” 95 Am. J. Int’l L. 341 (2001). But see United States v. Torres-Del Muro, 58 F. Supp. 2d 931 (C.D. Ill. 1999); People v. Madej, slip. op. No. 87574 (Ill. August 10, 2000).

Moreover, you should provide the court with examples of non-constitutional violations that may lead to judicial remedies such as suppression of evidence. For example, the McNabb-Mallory rule requires suppression of confessions obtained after a violation of Federal Rule of Criminal Procedure 5(a). See Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, 318 U.S. 332 (1943). See also United States v. Doe, 170 F.3d 1162 (9^th Cir. 1999); Lombera-Camorlinga, 206 F.3d at 893 n.2 (Thomas, J., dissenting)(collecting cases). In some states, courts routinely exclude evidence of intoxilyzer tests in prosecutions for driving under the influence if the police fail to follow statutory procedures.

3. Prejudice

Although you should always argue that a showing of prejudice is not required under international law, virtually all U.S. courts have held that the defendant is required to demonstrate prejudice before he is entitled to a remedy for the violation. See, e.g., Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994). To demonstrate prejudice, the Ninth Circuit has held that the foreign national must produce evidence that:

1) he did not know of his right; 2) he would have availed himself of the right had he known of it; and 3) there was a likelihood that the contact [with the consul] would have resulted in assistance to him. . .

United States v. Proa-Tovar, 975 F.2d 592, 594-95 (9^th Cir. 1992)(en banc). This test has been adopted by other courts, as well.

When litigating a Vienna Convention violation in pre-trial proceedings, it is critical that you establish that your client would have contacted the consulate, if he had known of his rights under the Convention. You must also contact consular officials from your client’s home country, and talk to them about ways in which they could have assisted your client. Mexican consular officials, for example, routinely testify at pretrial hearings that they advise their citizens not to speak to the police without first seeking the advice of counsel.

The Government will no doubt argue – relying on several bad decisions – that any advice by a consular official would be merely duplicative of what counsel would have done. In addition, the Government may rely on the reasoning of United States v. Chaparro-Alcantara, 37 F. Supp.2d 1122 (C.D.Ill. 1999). In Chaparro-Alcantara, a Mexican consular official testified he would have advised the defendants that any statements they made could be used against them, and would have assisted them in obtaining legal representation. The defendants also filed affidavits, claiming that they would have exercised their right to consular notification, and would have followed the advice of the consulate not to speak to the police.

The district court observed that both defendants failed to show they would have exercised their Fifth Amendment right to silence at the moment they were advised of their rights, before they actually had an opportunity to speak to the consulate. The court further held that nothing in the VCCR required law enforcement officials to cease interrogating the defendants after notifying them of their rights under the convention. There was also no evidence regarding how quickly the defendants could have reached a Mexican consular official. 37 F. Supp.2d at 1126. See also Rodrigues, 1999 U.S. Dist. LEXIS at *17- *18.

In anticipating these arguments, you must try to demonstrate that your client would have refused to speak to the police if he had known of his right to contact the consulate. Moreover, the Inter-American Court on Human Rights has now held that the authorities must notify a defendant of his rights under the VCCR at the time of arrest, and before the accused gives his first statement to authorities. OC-16/99 at 65, para. 106.

The Mexican consulates in many states have instituted a 24-hour, toll-free line that defendants may call to receive assistance from the consulate.

Prejudice arguments are easiest to make where the Government has gathered evidence, such as an incriminating statement, subsequent to the VCCR violation. If these arguments are unavailable, be creative in arguing prejudice. Rely on the international law remedies discussed above, and argue that:

1. The indictment should be dismissed;

2. The Department of Justice should rescind its death authorization (particularly if consular officials were not given an opportunity to participate in meetings with the Justice Department);

3. The Government should be barred from seeking the death penalty;

4. The Government should not be able to use prior convictions as enhancement, or as 404(b) evidence, if the prior convictions were obtained subsequent to a violation of the Vienna Convention.

5. As a result of the violation, you have been hampered in preparing a defense, since the consulate would have provided critical assistance in gathering evidence/contacting witnesses in your client’s home country (compulsory process violation).

4. Even If The Defendant’s Home Country Has Not Signed or Ratified the Treaty, The United States Is Still Obligated To Comply With The Terms of the Vienna Convention.

The State Department recognizes that consular notification is part of customary international law, and that the United States is bound to comply with Article 36 – even if the foreign citizen’s home country is not a signatory to the Convention. U.S. State Department, Consular Notification and Access (1998). Likewise, your client’s status as an illegal immigrant or permanent resident is of no relevance in determining whether he is entitled to consular notification. If your client retains foreign citizenship, he is entitled to the protections of Article 36.

5. Procedural Default

In the event that you are presenting a Vienna Convention argument in post-conviction proceedings, you may need to overcome procedural default problems. Although the following argument has not been well-received, I would argue that a state procedural rule cannot trump the rights created by Article 36.

Moreover, you should rely on the ICJ’s decision in LaGrand to argue that the procedural default rules may not be invoked to bar merits review of an article 36 violation. In LaGrand, the Court noted that by the time Germany learned of the LaGrands’ incarceration, the procedural default rule prevented counsel for the LaGrands from effectively challenging their convictions and sentences based on the article 36 violation.

The ICJ held that the waiver of this argument was attributable to the failure of American authorities to comply with their article 36(1)(b) obligations. “As a result, although United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards, the procedural default rule prevented them from attaching any legal significance to the fact, inter alia, that the violation of the rights set forth in article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention. Under these circumstances, the procedural default rule had the effect of preventing ‘full effect [from being] given to the purposes for which the rights accorded under this article are intended,’ and thus violated paragraph 2 of article 36.” (para. 91)

The Supreme Court has held that state laws are subordinate to the nation's obligations under international compacts:

We repeat that there are limitations on the sovereignty of the States. No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.

United States v. Pink, 315 U.S. 232, 233-34 (1942). See also United States v. Belmont, 301 U.S. 324 (1937)("Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. . . "); Ronan Doherty, Foreign Affairs v. Federalism: How State Control of Criminal Law Implicates Fedral Responsibility Under International Law, 82 Virginia L. Rev. 1281, 1283-90 (1996).

You will also need to distinguish the Court's opinion on denial of certiorari in Breard v. Greene, 523 U.S. 371 (1998). First, since Breard was merely an opinion regarding the denial of certiorari, it does not constitute binding precedent. Second, Breard dealt only with the conflict between provisions of a federal statute – namely, 28 U.S.C.A. secs. 2254(a), (e)(2) – and the VCCR. The Court did not address whether a state rule of procedural default could prevent a federal court from reaching the merits of a dispute involving international treaty rights. This is obviously an argument best raised in state post-conviction proceedings, or in a petition for writ of certiorari from a state appellate court.

If all else fails, you should argue that previous counsel was ineffective for failing to notify his/her client of the right to consular assistance under article 36. Cf. Ledezma v. State, 626 N.W.2d 134 (Iowa 2001)(“all criminal defense attorneys representing foreign nationals should be apprised of Article 36”).

C. Recent Developments

The LaGrand case, described throughout this memo and summarized in an attachment, is highly significant. The United States has signed the Optional Protocol to the VCCR, agreeing to submit to the jurisdiction of the ICJ for all disputes arising from the interpretation of the Convention. (Below is a list of countries that have signed the optional protocol).

III. Preparing for Pre-Trial Hearings

A. Seeking the Assistance of Foreign Governments

Approaching a foreign client's consular officials and enlisting their support is an essential element in pursuing a Vienna Convention claim. The consulates of most nations strive to provide at least basic consular protections to their nationals detained abroad. However, the scope of assistance that you and your client will receive may vary, depending on the resources available to the local consular post, the priority placed by the home government on consular services and even the degree of interest of the local consul.

What follows are step‑by‑step suggestions for obtaining this crucial assistance.

1. Consider the ramifications of the VCCR violation in your client's case. Review the case file (particularly arrest reports) to ascertain that: the arresting authorities were aware that your client was a foreigner and that they failed to notify him of his right to consular assistance. Please note that communications between law enforcement agencies of the United States and a foreign country (e.g., requesting criminal records from the Ministry of Justice from a foreign country) do not meet the notification requirements of Article 36.

2. Contact the nearest consulate of your client's home government. If there is no consulate nearby, contact the nation's embassy in Washington. In either case, you'll want to speak with the Consul General (the diplomatic official in charge of consular affairs). If possible, arrange to meet with them directly. If not, send an introductory letter summarizing your client's background, the case history and stressing both the breach of the Vienna Convention on Consular Relations and the grave predicament of the defendant. At this point, your purpose should be to acquaint the consulate with the situation and to establish a dialogue on how you might work together on your client's behalf.

3. After establishing contact, there are two requests for assistance you may make which most consulates will feel duty‑bound to comply with. First, a consular representative should immediately arrange to visit your client. Second, request that a consular official be present at all subsequent court hearings. Both are general consular functions under the Vienna Convention; evidence of this participation will add credibility to your claim that the consulate would have rendered valuable assistance to your client following arrest..

4. If the consulate is receptive to your client’s plight and expresses a willingness to help, you may want to ask them to send a diplomatic note to the US State Department, formally protesting the breach of Article 36. In its note, the government may request a full investigation into the allegation (keep in mind, however, that the government official who follows up on the investigation may be the assistant U.S. Attorney handling your case). A substantive response to the note will take at least a month and probably longer.

5. Find out if there is a bilateral consular convention between the USA and the home government. You can ascertain this by checking the web page of the United States Department of State (www.state.gov/www/global/legal_affairs/ca_notification/introduction.html). The United States has bilateral consular agreements with some 40 nations; unlike Article 36, these agreements generally stipulate that the consulate itself must be directly notified of the detention within 72 hours, irrespective of the national's wishes. These agreements place a high measure of responsibility on the local authorities that goes above and beyond what is required by the Vienna Convention, and may provide legitimate grounds for direct legal intervention by the home government to vindicate its sovereign rights.

6. Consider asking the consulate to file an amicus brief to support your pretrial motion. The brief should outline the forms of assistance that the consulate provides to its detained nationals and argue that this breach of international law prejudiced the defendant's legal rights.

7. Once the consulate has agreed to intervene in the case, you may wish to explore other forms of direct assistance. Depending on the facts of your case, this may include: meeting with Justice Department officials to urge them not to authorize the death penalty; hiring a mitigation investigator to visit the home country, obtaining and notarizing documents from the home country (e.g. medical records), or appointing an attorney to represent the consular interest at hearings.

8. Other forms of consular support are also possible. For example, you could ask a consular representative to testify at an evidentiary hearing on this issue, describing the forms of assistance available to detainees (senior officials may have diplomatic immunity, so their voluntary consent to appear is crucial). The consulate may agree to assist witnesses and/or family members obtain visas and make travel arrangements so they may testify at trial. The home government may also sue the United States before the International Court of Justice to seek an effective remedy for the breach of the Vienna Convention, but this may not be a viable option at the pretrial stage of a capital case. The home government will consider this a major undertaking, as well as a hostile action toward the United States. To date, only two governments have gone to the ICJ (Paraguay and Germany), and those governments waited until their nationals were facing imminent execution.

9. At all stages, the consulate should regularly visit or communicate with your client and should lodge formal complaints over any irregularity in the prisoner's treatment. A general listing of the forms of diplomatic assistance available to detained nationals is contained in Article 5 of the VCCR as well as Articles 3(b) and 45(c) of the Vienna Convention on Diplomatic Relations. Of course, some nations are more active than others in representing the rights of their arrested nationals.

10. If your first contact or subsequent relations with the consulate are unsatisfactory, don't give up. Send a copy of your introductory letter to the home government's Foreign Affairs Minister (names/addresses available through any Amnesty International office). Do not criticize the consulate in your correspondence with the home government; should the government decide to intervene in the case, you'll still need to work with the local consular officials.

B. Witnesses and Other Evidence

Your client will need to testify that (1) he was not informed of his rights under the VCCR; and (2) if he had known about his right to consular notification, he would have exercised it immediately (and would not have discussed his case with law enforcement officers until after he spoke to a consular official).

Other witnesses you may call include: (1) Consular officials from the home government; and (2) Representatives of the United States Department of State (Catherine Brown is one official who routinely deals with Vienna Convention issues, tel. 202/647-4415 or 202/647-0688).

ARTICLE 36 BIBLIOGRAPHY

Books and Law Review Articles

‑- for an overview of consular functions and the significance of the VCCR, see Luke T. Lee, Consular Law and Practice (2d ed. 1991).

‑- an early analysis of Article 36 violations and US law is found in 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. (1994). The footnotes contain a wealth of useful detail and additional sources; the article proposes a standardized notification procedure akin to Miranda v. Arizona.

‑- for a more recent treatment of the importance of consular assistance at the pre‑trial phase, Adele Shank and John Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 St. Mary's L. J. 719 (1995).

‑- consular assistance in criminal cases is also reviewed in Victor Uribe, Consuls at Work: Universal Protections of Human Rights and Consular Protection in the Context of Criminal Justice, 19 Hous. J. of Int’l L. 375 (1996).

‑- the history of the VCCR and its applicability in individual cases is outlined in William C. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs and Remedies, 31 Vand. J. Transnat’l L. 257 (1998)

‑- consular notification rights should apply from the earliest possible moment of detention to prevent prejudicial treatment; the drafters of Article 36 expressly intended to confer a legal right on individual nationals, according to 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 (1997).

‑- The federal government has ultimate responsibility for compliance with international treaty obligations: Ronan Doherty, Foreign Affairs v. Federalism: How State Control of Criminal Law Implicates Federal Responsibility Under International Law, 82 Va. L. Rev. 1281 (1996).

‑- assistance for detained foreign nationals may also be available from other organizations, including cultural, religious and special interest groups. For a detailed list of these groups in the USA by nationality, see: The Vienna Convention, Consular Access and Other Assistance Available to Foreign Nationals: A Guide for Criminal and Immigration Lawyers, by Lara A. Ballard, Columbia Human Rights Law Review (1998). Also available on‑line at: www.gacdl.org.

Reports^{^[2]}

*USA: Violation of the Rights of Foreign Nationals Under Sentence of Death, AI Index: AMR 51/01/98, January 1998. Outlines the general failure of U.S. authorities to inform detained foreigners of their consular rights, with disastrous consequences in capital cases.

*USA: The Execution of Angel Breard: Apologies Are Not Enough, AI Index: AMR 51/27/98, May 1998. Reviews the efforts to litigate this issue in the Breard case at the domestic and international level, as well as the response of the U.S. government.

*Effective Consular Assistance in Death Penalty Cases, by Mark Warren and Sandra Babcock, June 1999. Intended primarily for consular and diplomatic staff, this paper outlines the importance of early consular intervention, gives examples of effective interventions at various stages of death penalty cases and stresses the need for close cooperation between consulates and defense teams.

Magazine and Newspaper Articles

*Representing Foreign Nationals: Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool, John Sims and Linda Carter, "The Champion", September/October 1998. Outlines the litigation history of Article 36 in the USA and proposes a number of strategies for raising the claim at various stages of litigation. Detailed footnotes included.

Vienna Convention: New Tool for Representing Foreign Nationals in the Criminal Justice System, Logene Foster and Stephen Dogett, "The Champion", March 1997. Brief introduction to the litigation potential of the VCCR, including Article 37 (guardianship rights).

States Deny Treaty Rights to Foreign Defendants, Robert Brooks and William Wright, Jr.,"The National Law Journal", November 4, 1996. Early introduction to legal claims under Article 36, by the attorneys who represented Mexican national Mario Murphy in Virginia.

Foreigners' Convictions Raise Rights Issue, Margaret Jacobs, "Wall Street Journal", November 4, 1997. Report on VCCR claims in death penalty cases.

Justice for All, Jim Hoagland, "The Washington Post", April 19, 1998. Column on the significance of the execution of Angel Breard.

*Aliens' Rights Issue in Texas Death Row Case, Rick Lyman, "New York Times", December 8, 1998. Report on the Article 36 claim in the Faulder case and the State Department's intervention.

*Foreigners on Death Row Denied Rights, U.S. Says, Henry Weinstein, “Los Angeles Times”, December 10, 1998. A lengthy and reasonably accurate article on the treaty issue, with good material on efforts to date by Mexico, Canada and Thailand.

*Death Penalty Stirs Treaty Debate, Mike Ward, "Austin 360" (Austin American‑Statesman on‑line service, www.Austin360.com), December 21, 1998. Report on the VCCR and its impact on Texas death penalty cases involving foreigners, especially Mexican nationals..

On‑line Material

-- data on death‑sentenced foreign nationals in the USA and other background material:

www.deathpenaltyinfo.org/foreignnatl.html

-- US Department of State manual for law enforcement on Article 36: http://travel.state.gov/consul_notify.html

-- material from the International Court of Justice on the LaGrand case: www.icj-cij.org/icjwww/idocket/igus/igusframe.html

-- source for Amnesty International reports: www.amnesty.org

ARTICLE 36 AND U.S. LAW

This section contains a partial listing of relevant cases, with an unofficial summary of each decision. The number of cases citing Article 36 violations (and the subsequent rulings) is constantly growing: counsel are advised to consult LEXIS or WESTLAW for current data.

1. Prejudice Standard

-‑ establishing a two‑part test for assessing prejudice for Article 36 violations in INS proceedings: United States v. Calderon‑Medina, 521 F.2d 529 (9th Cir. 1979).

‑- Article 36 violation is grounds for reversal in INS proceedings where prejudice can be established; the right established by INS regulation and by the treaty is a personal one: United States v. Rangel‑Gonzalez, 617 F.2d 529, 532 (9th Cir. 1980).

-‑ claim citing a violation of Article 36 may be procedurally barred: Murphy v.Netherland, 116 F.3d 97 (4th Cir. 1996).

-‑ violation of Article 36 is not grounds for reversal where the violation constituted harmless error: Faulder v. Johnson, 81 F.3d 515 (5th Cir.1996).

-‑ rights under the Vienna Convention are not the equivalent of fundamental rights (e.g. right to counsel) in deportation proceedings: Waldron v. INS, 17 F.3d. 511 (1993).

2. Cases expressly holding that Article 36 confers standing on individuals to invoke treaty rights:

United States v. Briscoe, 69 F. Supp. 2d 738 (D. V.I. 1999)

United States v. Hongla‑Yamche, Criminal No. 98‑10296‑JLA (D. Mass. June 15, 1999).

United States v. Torres-Del Muro, 58 F. Supp. 2d 931 (C.D. Ill. 1999)

United States v. Alvarado‑Torres, No. Crim. 98‑3351‑R, 1999 WL 236197, at *2 (S.D. Cal. Apr. 19, 1999). The court applies an impossibly difficult standard of prejudice in this case. One of the Government’s favorite cases.

United States v. Superville, 40 F. Supp. 2d 672 (D. V.I. 1999).

3. Cases implying that individuals have standing, but denying relief on other grounds:

Villafuerte v. Stewart, 142 F.3d 1124, 1125 (9th Cir. 1998).

Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996).

Breard v. Pruett, 134 F.3d 615 (4th Cir.1998).

United States v. Esparza‑Ponce 7 F. Supp. 2d 1084, 1096 (S.D. Cal 1998) (good analysis suggesting individuals have personal rights under VCCR).

Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam) ("[the Convention] arguably confers on an individual the right to consular assistance following arrest").

Appendix I: Excerpts from the Vienna Convention on Consular Relations

Ratified without reservations by the United States on November 24, 1969.

Article 5: Consular Functions

Consular functions consist in:

(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

(c ) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa' in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

(j) transmitting judicial and extra‑judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;

(l) extending assistance to vessels and aircraft mentioned in sub‑paragraph (k) of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;

(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the inter‑national agreements in force between the sending State and the receiving State.

Article 36: Communication and Contact With Nationals of the Sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, 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. The said authorities shall inform the person concerned without delay of his rights under this sub‑paragraph;

(c ) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Appendix II Mandatory Notification Countries in the USA (Bilateral Agreements)

Antigua and Barbuda Malta

Armenia Mauritius

Azerbaijan Moldova

Bahamas Mongolia

Barbados Nigeria

Belarus Philippines

Belize Poland (non-permanent residents)

Brunei Romania

Bulgaria Russia

China Saint Kitts and Nevis

Costa Rica Saint Lucia

Cyprus Saint Vincent and the Grenadines

Czech Republic Seychelles

Dominica Sierra Leone

Fiji Singapore

Gambia Slovakia

Georgia Tajikistan

Ghana Tanzania

Grenada Tonga

Guyana Trinidad and Tobago

Hong Kong Turkmenistan,

Tuvalu

Jamaica Ukraine

Kazakhstan United Kingdom

Kiribati U.S.S.R.

Kuwait Uzbekistan

Kyrgyzstan Zambia

Malaysia Zimbabwe

Note: This list was compiled in 1998 and may no longer be comprehensive. When exploring the possibility of a bilateral consular agreement, consult with the consulate in question.

In most instances, bilateral consular agreements require that the consulate be notified within a stipulated time period whenever one of its nationals is arrested or detained in the USA, irrespective of the national’s wishes. As with Article 36 violations, there is considerable evidence that these provisions are routinely breached by arresting authorities across the USA. Litigation of this issue is still in a very early stage of development.

Appendix III Optional Protocol to the Vienna Convention on Consular Relations

concerning the Compulsory Settlement of Disputes

Article I

“Disputes arising out of the interpretation or application of the Convention shall

lie within the compulsory jurisdiction of the International Court of Justice and may

accordingly be brought before the Court by an application made by any party to the

dispute being a Party to the present Protocol.” (38 signatories, 44 parties).

Argentina

Australia

Austria

Belgium

Benin

Bosnia and Herzegovina

Bulgaria

Burkina Faso

Cameroon

Central African Republic

Chile

China

Colombia

Congo

Cote d'Ivoire

Democratic Republic of the Congo

Denmark

Dominican Republic

Estonia

Finland

France

Gabon

Germany

Ghana

Hungary.

Iceland

India

Iran (Islamic Republic of)

Ireland

Italy

Japan

Kenya

Kuwait

Lao People's Democratic Republic

Lebanon

Liberia

Liechtenstein

Luxembourg

Madagascar

Malawi

Mauritius

Nepal

Netherlands

New Zealand

Nicaragua

Niger .

Norway

Oman

Pakistan

Panama

Paraguay

Peru

Philippines

Republic of Korea

Senegal

Seychelles

Surinam

Sweden

Switzerland

United Kingdom

United States of America

Uruguay

Yugoslavia

Additional Resources

Mark Warren with Amnesty International maintains an extensive library of documents for attorneys seeking additional information, including sample pleadings.

Mark Warren

<aiwarren@sympatico.ca>

(613) 278‑2280

Mark can send many of the following files as e-mail attachments, and has other relevant documents, as well. When requesting a document, please cite the file name(s). Files are in either WordPerfect 6.1 or DOS format.

File Name Size Format Pages

_________________________________________________

CONINTRO 49KB WP 16

(Notes from the presentation given at the consular assistance seminar by Sandra Babcock and Mark Warren. Includes examples of effective consular interventions, an overview of the US death

penalty process and advice for consuls working with defense teams).

FORNAME 13KB DOS 7

(Current list of all reported foreign nationals under sentence of death in the USA, with background notes. Updated monthly: the current list includes 82 names representing 29 nationalities).

STATEDEP 84KB WP 29

(A condensed version of the State Department manual for law enforcement on consular notification and assistance. Contains all of the pertinent sections on Article 36).

AMICICJ 93KB WP 21

(Amicus brief to the US Supreme Court from a group of prominent law professors, arguing for a stay of Angel Breard's execution in light of the provisional measures order issued by the International Court of Justice).

INTAMIC 40KB WP or DOS 17

(Amicus brief filed by four nations in support of Paraguay's appeal to the US Supreme Court. Provides a comprehensive overview of the forms of consular assistance in capital cases).

CANAMIC 174KB WP 17

(Canada's amicus brief on Article 36, supporting Stanley Faulder's cert petition)

[Note: a number of other amicus briefs and various motions raising Article 36 claims are also available in paper format].

ICJSUM 41KB DOS 20

(Material on the International Court of Justice, including its function, statute and rulings in the LaGrand case).

AIREPS 102KB WP 20

(The texts of three relevant Amnesty International reports, including an overview of the failure of the USA to comply with Article 36 in capital cases, the final stages of the Breard case and a summary of issues in the Faulder case).

CLIPS 35KB DOS 16(A compilation of newspaper articles and editorials on the significance and value of consular assistance in death penalty cases)

VCON 136KB WP 50

(Law review article stressing the potential value of assistance for foreign nationals from cultural organizations, religious groups and ethnic media. Includes lists of these organizations in the USA by nationality and ethnic group).

VCLIST 10KB WP 8

(A more comprehensive list of most of the individuals and organizations most active in consular assistance issues. Includes attorneys, academics, consular officials, non-governmental organizations.)

KASEM 8 KB WP 3

(A summary of the Allal Ben Kasem Affair, a 1905 incident between the USA and Morocco, in which the US legation demanded and obtained the release of a detained national whose consular rights were protected by a multilateral treaty.)

****************************

LAGRAND CASE: SUMMARY OF ICJ’S KEY FINDINGS

What follows is a brief summary of the factual background of the LaGrand case, and analysis of the Court’s key findings. This document was prepared by reference to the ICJ decision only. This is designed to assist those who have cases currently pending, and need quick information about the import of this decision. This is not a detailed or scholarly analysis of the ICJ’s holding.

Factual Background

Karl and Walter LaGrand were German nationals, both of whom were executed by the State of Arizona in 1999. The LaGrands were born in Germany, but moved to the United States as children. In 1982, police arrested the LaGrands and charged them with capital murder in connection with an attempted armed robbery in which one person was murdered. They were tried, convicted, and sentenced to death in 1984.

Arizona authorities were unaware the brothers were Germans until after their trial. Their nationality was apparently discovered during a pre-sentence investigation in 1983 or 1984. Neither of the brothers was informed of his right to consular notification and access, and it is unclear whether either knew he was a German national at the time of the arrest. One of the brothers informed Arizona law enforcement authorities he was a U.S. citizen.

In 1992, after the brothers had already completed appellate and post-conviction proceedings, they learned of their article 36 rights and contacted German consular officials. (Their lawyers had failed to present the article 36 violation to the courts for review and consideration, and were presumably unaware of the treaty). Consular officials subsequently visited the LaGrands and assisted counsel in investigating the LaGrands’ background. Consular reps also assisted post-conviction counsel in raising the article 36 violation in federal habeas proceedings.

Both LaGrands filed successive post-conviction petitions in federal court, seeking to set aside their convictions and death sentences on the grounds that Arizona had violated their article 36 rights. The federal courts rejected their arguments, reasoning that the article 36 claim had not previously been raised in state courts on direct appeal or in post-conviction proceedings, and was therefore procedurally defaulted.

According to the ICJ, Germany never filed a diplomatic note regarding the article 36 violation. Although the German chancellor wrote to the President of the United States and Governor Hull of Arizona, and the German foreign minister wrote the Secretary of State and the Governor, no German official raised the article 36 violation until two days before the scheduled execution of Karl LaGrand.

The Arizona Parole Board rejected Karl LaGrand’s clemency request, and he was executed February 24, 1999.

Germany filed an application in the ICJ on March 2, 1999, and requested provisional measures to prevent Walter LaGrand’s execution. That same day, the Arizona Parole Board recommended a 60-day reprieve, but rejected Walter’s request for commutation. The ICJ issued provisional measures March 3, 1999, and requested that the U.S. take all measures at its disposal to prevent the execution of Walter LaGrand.

In legal proceedings brought by Germany and Walter LaGrand to enforce the ICJ’s order of provisional measures, the U.S. Solicitor General advised the U.S. Supreme Court that such orders were not binding. The Supreme Court refused to stay the execution. Governor Hull rejected the Board’s recommendation and allowed the execution to proceed on March 3, 1999.

Key Findings

1. Germany’s demand for a remedy beyond a mere apology was appropriate, given that LaGrands were sentenced to death. The Court rejected the United States’ contention that Germany, by requesting a remedy beyond a mere apology, was demanding a remedy that Germany itself did not provide for article 36 violations. The Court noted that the cases cited by the United States involved relatively light criminal penalties. (para. 63). “It is no doubt the case, as the United States points out, that Article 36 of the Vienna Convention imposes identical obligations on States, irrespective of the gravity of the offence a person may be charged with and of the penalties that may be imposed. However, it does not follow therefrom that the remedies for a violation of this Article must be identical in all situations.”

2. By violating article 36(1)(b), the United States prevented German consular officers from exercising their rights under article 36 (1)(a) and 36(1)(c). It is immaterial whether Germany can prove such assistance would have affected the outcome of the trial. (paras. 72-74).

Germany argued that its consular officers would have been able to intervene and present a “persuasive mitigation case” at trial which “likely would have saved” the lives of the LaGrands. Their inability to provide consular assistance was directly attributable to the U.S. violation of article 36 (1)(b). Germany further argued that its later intervention could not remedy the “extreme prejudice” created by the [ineffective assistance of] counsel appointed to represent the LaGrands.

This passage is critical, because it rejects a prejudice standard in analyzing the effect of the violation.

3. Article 36(1)(b) confers rights on individuals. (para. 77). Those rights were violated in the case of the LaGrands.

4. The procedural default rule, as applied in the LaGrands’ case, violated article 36(2).

By the time Germany learned of the case, the procedural default rule prevented counsel for the LaGrands from effectively challenging their convictions and sentences based on the article 36 violation. The waiver of this argument was attributable to the failure of American authorities to comply with their article 36(1)(b) obligations. “As a result, although United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards, the procedural default rule prevented them from attaching any legal significance to the fact, inter alia, that the violation of the rights set forth in article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention. Under these circumstances, the procedural default rule had the effect of preventing ‘full effect [from being] given to the purposes for which the rights accorded under this article are intended,’ and thus violated paragraph 2 of article 36.” (para. 91)

5. The Court’s order of provisional measures was binding in nature. (para. 108). When the Court issued provisional measures on March 3, 1999, its order created a legal obligation for the United States. The Court was critical of the United States’ failure to take all possible measures to prevent the LaGrands’ execution, and referred particularly to the statement by the Solicitor General that such orders were non-binding. The Court also took note of Governor Hull’s failure to grant a reprieve.

6. An apology was not a sufficient remedy in this case, and would not be sufficient in other cases where foreign nationals have not been advised without delay of their rights under article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties. (para. 123)

Since the United States is carrying out a massive program of education to ensure compliance, the Court accepts these measures as assurances of non-repetition of the violation. However, the court notes that if the United States fails to provide consular notification in cases where individuals are subject to prolonged detention or severe penalties, “it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.

Notes on application

1. The ICJ’s decision is “binding” only on the parties to the litigation, and expressly applies only to German nationals. Nevertheless, non-German nationals can argue that the ICJ decision is a definitive and persuasive analysis of the United States’ obligations under article 36, and that U.S courts (and executive clemency authorities) are bound to apply the decision under the Supremacy Clause and customary international law. Note that there is much scholarly debate over the enforceability of ICJ judgments in U.S. courts.

2. The ICJ decision conflicts in important respects with decisions by certain U.S. circuit courts – particularly in its analysis of procedural default rules and its rejection of a prejudice standard. This conflict between the ICJ’s decision and the decisions of the lower federal courts creates several cert-worthy issues. (Detailed discussion of these is not presented here, but will be forthcoming).

3. The ruling will most benefit cases in post-conviction proceedings, in which procedural default rules would otherwise prevent merits consideration of the article 36 violation. Counsel in those cases now have authority to argue that procedural default rules, as applied in a given case, conflict with the United States’ obligations to give effect to the consular notification and access provisions of article 36. This is only true, however, where consular officials were deprived of an opportunity to provide consular assistance in a timely manner, due to the local authorities’ failure to notify detained foreign nationals of their article 36 rights.

4. The Court appears to reject a prejudice standard, and mandates review and reconsideration of cases of individuals subjected to “severe penalties and prolonged detention.” Nevertheless, the Court stops short of recommending that death sentences should be vacated or commuted as a remedy for article 36 violations. In this sense, the Court’s holding is more limited than the decision of the Inter-American Court on Human Rights in OC-16/99. It is my recollection, however, that in its oral arguments Germany did not advance this position – so we should not read too much into the Court’s failure to specifically address this issue.

5. The Court declined to address whether the individual right to consular notification and access was a human right. (The Inter-American Court addressed this issue, and found that consular notification is one of the “minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial”).

6. For nationals of countries that have ratified the optional protocol to the Vienna Convention, there is the option of filing an application for relief in the ICJ. (Mexico has not yet ratified the optional protocol, but many other countries have. Mexico is in the process of ratifying the optional protocol.). Because the ICJ’s decision applies specifically to German nationals, they have a stronger argument that the decision is legally enforceable in U.S. courts.

[1] The government may argue that an advisory opinion from this international tribunal is not binding. In response, you should cite Thomas Buergenthal, a noted authority on the Inter-American system:

Advisory opinions [of the Inter-American Court] are not academic exercises; they are judicial pronouncements. The mere fact therefore that the Court has made a pronouncement in an advisory opinion rather than in a contentious case does not diminish the legitimacy or authoritative character of the legal principle enunciated by it.

Thomas Buergental, International Human Rights in a Nutshell 220 (2d ed. 1995 ).

^{^[2]}The reports and articles indicated with an asterisk are available from Mark Warren as e-mail file attachments.

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