The right to consular notification as a human right.

• Author: Cerna, Christina M.
• Position: The Medellin v. Texas Symposium

I. INTRODUCTION

The late Professor Joan Fitzpatrick wrote in 2002 her reflections on U.S. implementation of the International Court of Justice (ICJ) judgment in the LaGrand case. These reflections on the situation of the implementation of the Vienna Convention on Consular Relations (VCCR) in the United States are as true today as they were six years ago:

The Judgment of the International Court of Justice (ICJ) in the LaGrand case has not to date resulted in a discernible improvement in United States compliance with the VCCR on Consular Relations. The gross deficiencies of U.S. practice regarding consular access under Article 36 of the convention are a sad but telling reflection on the unreality of international law in the United States today. The lessons from LaGrand are varied and important. First, consular access is an individual right. The LaGrand judgment affirms that the right to consular notification and access guaranteed by Article 36(1)(b) of the convention is an individual right of detained persons which may be asserted by their state of nationality in proceedings under the Optional Protocol to the Convention. The United States had argued that "rights of consular notification and access under the VCCR are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance ..." Second, the judgment provided a rare instance in which the treaty obligations of the United States, affecting individual rights, were subject to binding international adjudication. Rights under such ratified treaties as the International Covenant on Civil and Political Rights (ICCPR) and the 1967 Protocol relating to the Status of Refugees are regularly violated by the United States, without effective redress, because of peculiar but dominant contemporary views of treaties held by domestic authorities responsible for their implementation.... Violation of the VCCR is costless to those committing the violations. The judiciary continues to ignore violations of the VCCR, as if the ICJ had not spoken.... Third, the ICJ was curiously diffident on the question of whether the right to consular notification and access is a human right. Having found that Article 36(1)(b) creates an individual right, the court reserved the issue pressed by Germany that this right "has today assumed the character of a human right." Unmentioned in the LaGrand Judgment is the well--reasoned Advisory Opinion of the Inter-American Court on Human Rights on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law.... Fourth, the ICJ clarified that provisional measures indicated under Article 41 of its Statute impose a binding legal obligation. Twice the United States has executed foreigners in the face of Article 41 provisional measures by the ICJ requesting a stay of execution until the condemned men's rights under the VCCR could be adjudicated.... Fifth, the ICJ largely leaves open the issue of the proper remedy for a violation of Article 36(1)(b).... The United States argued that an apology and its program disseminating information about the VCCR should suffice. The ICJ ventured beyond this position, but in limited and indefinite directions.... The failure of the ICJ to specify the mechanisms for domestic "review and reconsideration" in cases involving violations of Article 36(1)(b) can be defended as an appropriate accommodation of permissible variations among national criminal justice systems and as deference to national authorities' better grasp of remedial realities. However, the ICJ's failure to specify the precise remedial action that must be taken for proven violations of Article 36(1)(b) leaves U.S. courts adrift ... because the ICJ did not specifically consider the applicability of the exclusionary rule to violations of the VCCR. Sixth, LaGrand is, and at the same time is not, a death penalty case. The VCCR does not differentiate between the rights of capital defendants and other foreign detainees.... Violations of consular notification and access are pervasive, and freeing all the victims is not a realistic form of reparation. The ICJ and the Inter-American Court limit their demands for vigorous remedial steps to cases in which severe criminal penalties have been imposed. There is a certain justice in this resolution, but also an equal lack of logic. Seventh, the reciprocity of treaty obligations provides insufficient leverage to induce U.S. compliance with certain treaty obligations.... Although systematic U.S. noncompliance may endanger U.S. citizens abroad and create tensions in relation with other states, it is evident that this risk poses no real concern to officials in a position to affect U.S. practice regarding consular notification. (1) Some colleagues participating in the Medellin Symposium predictably will discuss U.S. obligations regarding compliance, or lack thereof, with judgments of the ICJ. Jose Medellin was one of the fifty-four Mexican nationals on whose behalf the Mexican government brought suit against the United States in the Case Concerning Avena and Other Mexican Nationals (Avena). (2) My contribution to this Symposium will deal with Professor Fitzpatrick's third point, the question of whether the right to consular notification and access is a human right, and how the Advisory Opinion of the Inter-American Court of Human Rights (Inter-American Court) (3) influenced the discussion of this right by the ICJ in its two cases dealing with the VCCR since the Inter-American Court's opinion.

Legal interpretations as to whether consular assistance is a "right" or not, and if a "right" what "kind" of a right, are diverse enough to create doubt as to the status of the norm in international law. Clearly, the status of a "human" right is greater than the status of an individual right only found in a particular treaty. For the right to notification of consular assistance to acquire the status of a "human" right, as a component of the fundamental right to due process for a fair trial, for example, would call into question the legitimacy of the final judgment in the alien's trial. If consular assistance is a "human" right and not merely a "treaty" right, one would expect that the obligation of the alien's state to actually provide the alien with assistance should be more than purely discretionary with the State.

The arguments presented by the United States in the LaGrand case addressed the issue as to whether Article 36 of the VCCR endows the detained foreign national with human rights. Specifically, Professor Stefan Trechsel, a Swiss national and former President of the European Commission of Human Rights who is a specialist in criminal law and international human rights, argued for the United States that "the present case does not concern the problem of capital punishment" despite the fact that the two LaGrand brothers had been executed. (4) Dr. Trechsel begins his argument noting that no human rights instrument or document mentions the right to consular "contact" as a human right and that the right to consular assistance does not have the character of a "fundamental" right "which all human beings should enjoy by virtue of their human existence." Human rights, Dr. Trechsel adds, "are not conferred on their beneficiaries, they are innate, and are merely 'recognized' by international treaties." (6) Dr. Trechsel's most persuasive argument is that the United States was unable "to find a single decision quashing a judgment for contravening the VCCR." (7) None of these arguments are conclusive on the issue, however, when one examines the evolution of "fundamental" human rights. In the United States, for example, an indigent's right to a lawyer in state court criminal proceedings (8) or the right of an arrestee to be informed of the Miranda warnings, (9) both of which date from the 1960s, are today considered part of the components of the fundamental right to due process, whereas prior to the 1960s they were not considered rights at all. The United States argued that the alien receives due process comparable to that of any United States citizen in criminal justice proceedings in the United States and that this is sufficient, when in truth, the inadequate defense provided by many public defenders and the inability of the system to allow for the correction of these errors committed at the first instance level, due to the procedural default rule, are at the root of the problem.

Judge Cangado Trindade, a Brazilian Judge, at the time President of the Inter-American Court of Human Rights, was of the view, in his opinion, in Advisory Opinion No. 16, that the right to consular assistance had crystallized into a human right:

At the end of century, we have the privilege to witness the process of humanization of international law, which today encompasses also this aspect of consular relations. In the confluence of these latter with human rights, the subjective individual right to information on consular assistance of which are titulaires all human beings who are in the need to exercise it, has crystallized such individual right, inserted into the conceptual universe of human rights, is nowadays supported by conventional international law as well as by customary international law. (10) The ICJ in the LaGrand case held that the right of the individual to be informed without delay of his right to communicate with his consulate upon detention was an "individual" right." Germany, in oral argument, contended before the ICJ that this right had assumed the character of a "human" right and submitted that the UN Declaration on the Human Rights of Individuals who are Not Nationals of the Country in Which They Live, adopted by the General Assembly Resolution 40/144 on December 13, 1985, confirms the view that the right of access to the consulate of the home State, as well as the information on this right, constitute individual...