A Look at the Vienna Convention on Consular Relations and Its Local Implementation
One treaty that has been at the forefront of domestic and international rights litigation is the Vienna Convention on Consular Relations (“VCCR”).[1] The VCCR lays out various rights afforded to citizens of the signatory nations abroad, including the right when arrested to speak with a consular representative for assistance.[2] Article 36, a point of contention for many signatories of the VCCR, provides the right to have “[c]ommunication and contact with nationals of the sending State.”[3] There is an open question over whether the prosecuting nation must inform the defendant of these rights or if they can be procedurally defaulted on, with many nations viewing this potential obligation differently.[4]
Application of the VCCR is affected when certain nations, like the United States, believe that only some international treaties are self-executing. In the U.S. and certain other jurisdictions, even if the VCCR was signed, Article 36 rights may not be binding regardless of procedural default regimes.[5] This is particularly important as if VCCR rights to consultation are denied those arrested may be afforded worse defenses and opportunities to appeal their cases.
The U.S., a signatory, and ratifier of the VCCR, has dealt with significant inflows of foreign nationals over its history and has developed a complicated system for arresting many of these foreign nationals while pursuing a policy of procedurally defaulting on VCCR rights.[6] This has led to several U.S. Supreme Court decisions on how domestic procedural rules apply to the VCCR and the impact of the International Court of Justice (“ICJ”) on controlling national legal doctrine.[7] As of today, Supreme Court precedent holds that if a defendant does not raise their VCCR rights timely, at the start of litigation, they are considered waived.[8] Regardless of these default rules, the Supreme Court implied that the VCCR needs further parliamentary action to make itself binding on the U.S. via Congressional ratification.[9]
The U.S. regime for notifying VCCR rights and procedurally defaulting is not universally accepted. In the ICJ holding Avena and Other Mexican Nationals (Mexico v. United States) (“Avena”), the ICJ itself stated that the individual merits of each claim should be adjudicated without concern for procedural defaults.[10] The ICJ went further to hold that if the US procedural default regime continues, there will be a “violation of Article 36” and denial of VCCR rights.[11] This means those arrested in the U.S. will be denied rights that the ICJ feels should be granted via the VCCR, if there is a procedural default on requesting consular assistance.[12]
In some countries, the standard set by the ICJ in Avena is binding law.[13] Other nations object to the holding outright, while some allow regional jurisdictions to control the applicable VCCR standards.[14] The Federal Constitutional Court of Germany holds that if procedural defaults are harmless to the outcome of the case then VCCR rights were not violated.[15] In contrast, various provincial-level courts in Canada have come to different conclusions on procedural defaulting on VCCR rights, with some following the German model and other provincial courts disagreeing with the right altogether.[16]
The VCCR has a long debated impact on international law, with the effects of its implementation deciding whether increased consular rights and privileges are afforded to arrested foreign nationals for their own defense.[17] If VCCR rights are denied, whether through procedural default or not viewing the signed VCCR as binding, resources needed to win legal disputes may be denied to arrested individuals which could impact legal outcomes.
Joshua Hochstat is a staff member of Fordham International Law Journal Volume XLVII.
[1] See Dinah L. Shelton, An Introduction to the History of International Human Rights Law, GW Law Faculty Publications & Other Works at 1052 (2007); See 596 U.N.T.S. 291.
[2] See id.
[3] Id.
[4] See generally Kristin K. Beilke, The U.S. is Not Alone in Its Reluctance to Adhere to Supranational Decisions from the International Court of Justice, Judicial Review of Congressional Section Five Action: The Fallacy of Reverse Incorporation, 7 Loy. U. Chi. Int’l L.Rev. 213, 227 (2010).
[5] See id.
[6] See Immigration and Relocation in U.S. History, Library Of Congress, https://www.loc.gov/classroom-materials/immigration/global-timeline/ (last visited Jan. 26, 2024); See Medellin v. Texas, 552 U.S. 498, 499 (2008) (holding that VCCR rights not raised are waived at the trial level).
[7] See id. at 519 (ICJ decisions are not immediately binding on the United States, therefore procedural default rules can proceed unless Congress acts); see also Breard v. Greene, 523 U.S. 371 (1998) (procedural default rules upheld even in a death penalty scenario).
[8] See Medellin, 552 U.S. at 499, 520.
[9] See id. at 521.
[10] See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (March 31).
[11] See id.
[12] See id.
[13] See generally Beilke, supra note 5.
[14] See id.
[15] See Abstract of the Federal Constitutional Court’s Order of 19 September 2006, 2 BvR 2115/01.
[16] See R. v. Van Bergen, [2000] 261 A.R. 387 (Alta. Ct. App.) (the VCCR does create an obligation to inform, but this can be overcome by harmless procedural errors); see also R. v. Partak, [2001] 160 C.C.C. (3d) 553 (Ont. Super. Ct.) (obligations only between nations not between individuals and their arresting state).
[17] See generally Beilke, supra note 5.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.