Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of Justice (ICJ) Interpretation of Consular Notification Requirements (CRS Report for Congress)
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| Release Date |
May 17, 2004 |
| Report Number |
RL32390 |
| Report Type |
Report |
| Authors |
Michael John Garcia, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
On March 31, 2004, the International Court of Justice (ICJ) ruled in the case of Avena and
Other
Mexican Nationals that the United States had failed to comply with its obligations owed to
Mexico
and its foreign nationals under the Vienna Convention on Consular Relations. It further instructed
the United States to review and reconsider the convictions and sentences of foreign nationals denied
requisite consular information owed under Convention Article 36, and held that U.S. state or federal
procedural default rules should not prevent relief from Article 36 violations.
The Vienna Convention on Consular Relations is a multilateral agreement codifying consular
practices originally governed by customary practice and bilateral agreements between States. Most
countries, including the United States, are parties to the Convention. The United States is also a
party to the Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes,
under which it has agreed to accept the jurisdiction of the ICJ to settle disputes between Convention
parties regarding the agreement's provisions. In recent years, three countries (Paraguay, Mexico, and
Germany) have brought cases to the ICJ disputing U.S. practice in relation to Convention Article 36.
Article 36 provides that when a foreign national is arrested or detained, authorities of the receiving
State must notify him "without delay" of his right to have his country's local consular officer
contacted.
While the United States has adopted measures to ensure federal law enforcement compliance
with the provisions of Article 36, no federal law ensures state and local compliance with Convention
consular notification requirements. Regardless, U.S. federal and state courts have generally not
granted foreign nationals relief for Article 36 violations, often because state and federal procedural
default rules, including those federal rules enacted pursuant to the Antiterrorism and Effective Death
Penalty Act (AEDPA), prevent consideration of such claims if they are not raised on a timely basis.
In Breard v. Greene , the Supreme Court upheld the application of federal procedural
default rules
to Convention claims, including in instances where such rules precluded federal habeas relief from
sentences imposed by state courts. If the United States decided to comply with the ICJ's ruling,
legislative measures might be required. U.S. jurisprudence concerning the Vienna Convention, along
with the requirements of AEDPA, make it unlikely that U.S. courts will uniformly abide by the ICJ's
ruling. In order to comply with the ICJ's decision concerning the nonapplicability of the procedural
default rule to Convention claims, AEDPA may need to be amended to permit further review of
Article 36 claims. Further, the United States could seek to improve state and local compliance with
Convention provisions through federal legislative measures. Whether or not Congress has the power
to commandeer state and local officials to execute U.S. treaty obligations remains an undecided
issue, and Congress might decide to implement less direct measures to assure state compliance with
the ICJ's ruling.
