Article 36 of the Vienna Convention on Consular Relations: private enforcement in American courts after LaGrand.

• Author: Drinan, Cara

INTRODUCTION

On June 27, 2001, the International Court of Justice (ICJ) held in the case of Germany v. United States of America (LaGrand) that Article 36 of the Vienna Convention on Consular Relations ("VCCR") affords an individually enforceable right to consular access upon arrest or detention in a foreign country. (1) In the United States, death penalty opponents applauded the ICJ's finding for its promise of greater due process protection, while states' rights advocates criticized the decision as an unlawful exercise of criminal appellate jurisdiction. LaGrand, in theory, resolves many questions that have plagued American courts: whether Article 36 rights are vested in an individual or a signatory state; whether the right may be privately enforced; whether domestic procedural rules may bar Article 36 claims in certain circumstances; and whether the ICJ's provisional measures are binding upon member states.

The LaGrand opinion, however, leaves unclear as many issues as it clarifies. Procedurally, LaGrand has enormous implications for American criminal courts if taken at its word. Yet it remains to be seen how, and if, the American courts will incorporate the ICJ's decision in LaGrand into their jurisprudence. The United States Supreme Court has yet to address the LaGrand issues in a comprehensive manner. (2) As a result, courts vary widely in their willingness to defer to ICJ opinions, and in many cases they have avoided incorporation of ICJ law altogether by deferring to the political branches in high-profile cases involving foreign national defendants. (3)

Even those courts that recognize ICJ opinions as contributing to American common law are left with a critical gap in the LaGrand opinion: where a court determines that there has been an Article 36 violation, what is the appropriate remedy? Should the court treat an Article 36 violation as comparable to a Fourth Amendment violation, thereby triggering a form of the exclusionary rule? Should the court view Article 36 as akin to the effective counsel guarantees of the Sixth Amendment? Or should the court defer to the United States Department of State, allowing an infringement to be resolved politically, perhaps only with an apology and a promise to be more vigilant in guarding consular access in the future?

In this Note, I explore the potential impact of LaGrand upon domestic American criminal jurisprudence with an eye toward what the case demonstrates for America as a member of international institutions more generally. In Part I, I describe the central holdings of the ICJ in LaGrand, noting how dramatically LaGrand departs from what American courts have previously interpreted the VCCR to require. Having demonstrated the enormity of LaGrand's procedural implications, I examine early cases after LaGrand and what they suggest about the American judicial response to the ICJ decision in Part II. I argue that American courts err to the extent that they recognize little shift in law after LaGrand. The ICJ directed the American courts to craft a remedy in future cases that provides "effective review of and remedies for criminal convictions impaired by the violation of the rights under Article 36." (4) These words are not an escape hatch for American courts, but rather an instruction to be respectful of the ICJ opinion in the context of domestic criminal cases.

Finally, in Part III, I argue that American courts are well-equipped to heed this instruction, for they are experienced in balancing rights and employing prejudice analysis where the criminal adjudicative process has been tainted. These models should be a template for the similar treatment of Article 36 violations. Such a model allows the courts to factually distinguish between various Article 36 claims and to tailor narrow remedies on a case-by-case basis. In fact, meaningful application of the LaGrand opinion in the United States may enhance our own constitutional principles of due process while simultaneously enhancing our role as a member of international institutions.

1. LAGRAND

   Historically, American courts have minimized the importance of Article 36 rights, often incorrectly interpreting the obligations created by the VCCR altogether. (5) First, courts have treated the rights as belonging to VCCR signatory states, rather than to individual defendants whose consular access has been denied. (6) Declining to clarify this issue, the United States Supreme Court has conceded only that Article 36 "arguably" confers an individual right of some kind. (7) Second, courts have treated an Article 36 violation as one best remedied through political means. (8) Therefore, before LaGrand, Article 36 rights in practice posed little disruption to the standard adjudication of domestic criminal cases.

   In light of this historical treatment of Article 36, LaGrand represents a mandate for significant change in the adjudication of cases involving foreign nationals. Five holdings of the LaGrand decision deserve particular attention.

   1. Article 36 "creates individual rights" for detained foreign nationals to be informed "without delay" that they are entitled to receive consular assistance if they choose. (9)

   2. Article 36 stands for rights of the foreign national and the sending state that are distinct from rights accorded to the foreign defendant under domestic criminal law, such as the right to effective counsel. Article 36 may assist the foreign national in securing private rather than court-appointed counsel, and this distinction may be outcome-determinative. (10)

   3. A showing of prejudice to the foreign defendant is not required to establish an Article 36 violation. (11)

   (4.) Where a state violates Article 36 by failing to inform a foreign national of his right to consular assistance, that state cannot then invoke waiver as a defense to a challenge based on that very same violation. (12)

   (5.) Courts addressing an Article 36 violation may not invoke procedural default rules to dismiss the case where the default itself is caused by an Article 36 violation. (13)

   Each of these holdings requires American judicial and executive agents to modify their treatment of foreign nationals in the future.

   First, the ICJ's determination that Article 36 creates an individually enforceable right settles a long-standing question for American courts. While this piece of the ICJ decision may have rung hollow in the LaGrand case, since both of the LaGrand brothers had already been executed at the time of the decision, the holding will have more significance in the future. No longer may courts equivocate on this point. Now, when the American government deprives a foreign national of his right to consular assistance, the foreign defendant has standing to raise an Article 36 claim in a criminal trial.

   Second, the ICJ's description of the right to consular access as distinct from, and not cumulative of, rights accorded under domestic law such as that of effective counsel requires greater diligence on the part of both executive and judicial agents. Neither arresting officers nor judges may devalue the role of the consular official on the rationale that counsel and consul provide effectively the same resources. (14)

   Third, the issue of prejudice analysis requires great judicial attention. The ICJ opinion makes clear that a showing of prejudice is not required to establish an Article 36 violation. (15) However, it is my contention, as discussed below, that compliance with the ICJ opinion is not feasible for American courts without employing some type of prejudice analysis, at least in terms of damages or impact assessment. The task remains, then, for the courts to reconcile the finding of a violation without a showing of prejudice and the crafting of an appropriate remedy with such prejudice analysis.

   Fourth, the ICJ's determination that a receiving state that fails to notify the foreign national of his right to consular assistance may not invoke waiver or procedural default creates an opportunity to bolster domestic safeguards of due process. The ICJ was careful to state that procedural default per se has not been called into question, but rather "its specific application in the present case." (16) Thus, the ICJ condemned American refusal to entertain a claim where the very reason for the tardy nature of the claim was intertwined with the alleged violation of the defendant's rights. This notion is no different from the domestic principles underlying Miranda warnings and the Fourth Amendment exclusionary doctrine: Government violation of a defendant's rights may not generate a windfall for the government's case against the defendant.

2. COMPLACENCE VERSUS COMPLIANCE

   Theoretically, the ICJ's opinion in LaGrand requires dramatic change in the law of consular access, but the question remains whether American courts will comply with such mandates in practice. In the six months since LaGrand, a handful of federal courts have rendered decisions in which defendants raised the issue of the government's failure to comply with Article 36. (17) These cases suggest that the LaGrand decision--in particular its holding that Article 36 does create individual, legally enforceable rights--will not alter domestic law as dramatically as the ICJ may have anticipated with its decision.

   1. American Courts Have Failed to Correctly Interpret and Announce the LaGrand Decision

      First, there has been a collective judicial failure to explicitly address LaGrand, let alone incorporate its holdings into domestic law under the Supremacy Clause. (18) The one case that does mention LaGrand summarily dismisses the import of the ICJ's decision by focusing on what the Court did not decide explicitly--the issue of remedy. Declining to "decide" whether or not Article 36 creates individually enforceable rights, the Tenth Circuit in Minjarez-Alvarez referred to the LaGrand decision in only a brief footnote. The Court justified its decision to deny a motion for suppression of...