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International Law Consular Relations
by
John Quigley

Introduction

Rights and duties of states as they send and receive consular representatives is the subject matter of the field of consular relations. The law relating to consular relations governs the process for accreditation of consular representatives, the obligations of the receiving state to facilitate consular functions, immunities enjoyed by the sending state for the premises it uses and the functions in which it engages, and immunities enjoyed by consular representatives. This body of law also relates to individual nationals of sending states, because consuls perform functions relating to the activities of their nationals in the territory of the receiving state, for example, marriage, the administration of estates, and criminal arrest and prosecution. The law on consular relations is found in customary international law, based on practice extending back a number of centuries. To a large extent, that customary law has been codified in a multilateral treaty that enjoys wide adherence, the Vienna Convention on Consular Relations (1963). In addition, many states conclude treaties bilaterally with other states to provide for the specifics of the consular relations they desire. In Europe the states of the European Union (EU) have consolidated their consular efforts to a certain degree. Consular law is given mention in many general treatises on international law. While much helpful information can be found in such general treatises, they are too numerous for inclusion here.

Reference Works

There is no bibliography on consular relations, nor is there any encyclopedic work on the topic. However, several publications are helpful in finding current materials or in providing a guide to terminology. Maresca 1991 gives guidance on the basic terminology of consular relations; the Max Planck Encyclopedia of Public International Law gives a basic account of the major subissues in consular relations, whereas Public International Law: A Current Bibliography of Books and Articles keeps one up-to-date on new literature in the field.

Treatises

Consular law is often analyzed in treatises in conjunction with a related body of law, that dealing with diplomatic relations. There is some overlap between the two bodies of law, because consulates often function, at least in capital cities, out of the embassy of the sending state. In some instances, diplomats perform consular functions, and on occasion consuls perform diplomatic functions. Some treatises, in their treatment of consular law, cover all major issues, whereas others focus on a particular issue, and still others highlight the practice of particular states. Ahmad 1973, Ankoletz 1948, Lee and Quigley 2008, Maresca 1966, and Sen 1988 cover all major issues, which generally include acquisition of consular status, functions of consuls, obligations of a receiving state to facilitate consular activity, privileges relating to use of consular premises and consular communication, and immunities enjoyed by consular personnel. Biscottini 1969 covers the major issues but emphasizes the various functions of consuls, and Corsini 1958 is strong on the historical development of the consular institution. Blishchenko and Durdenevskii 1962 and Hoffmann and Glietsch 2002 focus on the practice, respectively, of eastern Europe and Germany, while still covering the major issues.

  • Ahmad, Mohammed Ali. L’institution consulaire et le droit international: Étude de la Convention de Vienne du 24 avril 1963 sur les relations consulaires et la pratique des États dans ce domaine. Paris: Librairie Générale de Droit et de Jurisprudence, 1973.

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    A thesis prepared at the University of Geneva covering privileges and immunities of consulates and career consuls, sources of consular law, and procedure for posting of consuls; particularly detailed on consular functions. Appendix includes a useful listing of bilateral consular treaties dating from the 19th century.

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  • Ankoletz, Daniel. Tratado teórico y práctico de derecho diplomatico y consular, con referencias especiales a la República Argentina y a las demás Repúblicas Americanas. 2 vols. Buenos Aires, Argentina: Editorial Ideas, 1948.

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    A two-volume treatise on diplomatic and consular law. Volume 1 discusses diplomatic law; volume 2 looks at consular law, analyzing all major issues, with extensive reference to state practice, particularly in South America.

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  • Biscottini, Giuseppe. Manuale di diritto consolare. Manuali di scienze giuridiche. Padua, Italy: Casa Editrice Dott. Antonio Milani, 1969.

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    Functions of consuls in protecting interests of conationals, consular ranks, acceptance by receiving state, immunity from local taxes, notarial acts of consuls, involvement in commercial shipping. Focus is on Italian practice.

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  • Blishchenko, I. P., and V. N. Durdenevskii. Дипломатическое и консульское правo. Moscow: Institute of International Relations, 1962.

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    Sparse on consular functions but strong treatment on the establishment of consular posts and on consular immunities, with extensive reference to early-20th-century bilateral consular treaties, especially in eastern Europe.

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  • Corsini, Vincenzo. Diritto diplomatico consolare: Parte generale. Milan: Giuffré, 1958.

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    Short treatise on both diplomatic and consular relations. Strong on the history of consular institutions from ancient times.

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  • Hoffmann, Klaus, and Herbert Glietsch. Konsularrecht: Sammlung der Völkerrechtlichen Vereinbarungen und Innerstaatlichen Rechtsvorschriften der Bundesrepublik Deutschland über Konsularische Beziehungen, Konsularbeamte, ihre Aufgaben under Befugnisse. Dresden, Germany: R. S. Sachbuch, 2002.

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    Collection of international agreements in consular law and German regulations and practice, examining the establishment of consular relations and the duties and powers of consular personnel.

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  • Lee, Luke T., and John Quigley. Consular Law and Practice. 3d ed. Oxford and New York: Oxford University Press, 2008.

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    Originally published in 1961; second edition, 1990 (both authored by Luke T. Lee alone). Looks at the history of consular relations, the sending and receiving of consuls, protections for consuls and consular functions in the receiving state, immunities of consuls, and consular premises.

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  • Maresca, Adolfo. Le relazione consolari. Milan: Giuffré, 1966.

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    Discusses the sending and receiving of consuls, immunities. Quite detailed on the various functions of a consul, consular privileges and immunities, situations in which consular relations between two states are interrupted. Contains an excellent bibliography of early-20th-century works on consular law.

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  • Sen, B. A Diplomat’s Handbook of International Law and Practice. 3d ed. Dordrecht, The Netherlands, and Boston: Martinus Nijhoff, 1988.

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    Contains a major section titled “Consular Functions, Immunities and Privileges.” Other sections cover particular tasks of consuls in the protection of nationals, including property interests of nationals and the situation of nationals under arrest.

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General Issues in Consular Law

A number of scholars have focused on general issues in consular law or on a particular aspect of it. One aspect to which attention has been prominently devoted is the various functions of consuls. Another is the immunities that are afforded to consuls so that they can carry out their work without interference by the receiving state. Choi 2006 addresses fascinating issues arising out of new means of communication, as rules on secrecy of consular communications were written prior to their development. A sending state is entitled to protect only its nationals, but Kdhir 2006 explains difficulties that arise in determining who falls into this category. Künzli 2006 and Maresca 1972 examine the interaction between diplomatic activity and consular activity, because both can be directed at protecting sending-state nationals, and it is not always clear which is involved. Safronova 2003 delves into 19th-century theoretical writings on consular relations, in which it finds support for a view that seems out of keeping with contemporary analysis that would regard consuls more as international civil servants than as representatives of their states. Zourek 1963 draws on the author’s work as rapporteur on consular law for the International Law Commission to survey a number of major issues.

  • Choi, Won-Mog. “Diplomatic and Consular Law in the Internet Age.” Singapore Yearbook of International Law 10 (2006): 117–132.

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    Analyzes basic concepts of consular law in light of contemporary technologies: inviolability of consular communication now applies to e-mail communication; suggests that the right of a receiving state to enter consular premises without consent in the event of a disaster may apply if a virus infects computers at a consulate.

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  • Kdhir, Moncef. “Les bénéficiaires de la protection consulaire. In La protection consulaire: Journée d’études de Lyon. Edited by Société Française pour le Droit International, 115–135. Paris: Pedone, 2006.

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    Analyzes the connection that brings a person (physical or legal) within the ambit of the obligations that a receiving state owes a sending state, such that the sending state is entitled to extend consular protection.

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  • Künzli, Annemarieke. “Exercising Diplomatic Protection: The Fine Line between Litigation, Demarches and Consular Assistance.” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 66 (2006): 321–350.

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    Analyzes the distinction between diplomatic protection and consular assistance when a sending state acts on behalf of a conational who is being prosecuted for crime in the receiving state. Points out that diplomatic functions may be exercised by consuls and that consular functions may be exercised by diplomats.

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  • Maresca, Adolfo. Les relations consulaires et les fonctions du consul en matière de droit privé. Recueil des cours: Academie de droit international 134. Leiden, The Netherlands: A. W. Sijthoff 1972.

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    Useful summary of the obligations of sending and receiving states, focusing on private rights that are afforded by consular law to nationals of sending states. Explains the interaction between diplomatic law and consular law.

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  • Safronova, Elena Viktorovna. “Концептуальное видение консульского института в науке международного права.” Государство и право 9 (2003): 70–79.

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    Looks at theorists of international law, prominently Russian theorists prior to the 20th century, analyzing how they conceptualized consular law; identifies two views: some regarded consular institutions as organs representing states, whereas others viewed them as administrative organs of the international community.

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  • Zourek, Jaroslav. Le statut et les fonctions des consuls. Recueil des cours: Academie de droit international 106. Leiden, The Netherlands: A. W. Sijthoff. 1963.

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    Analysis of the customary law of consular relations by the United Nations (UN) rapporteur for the codification of consular law. Covers consular functions, the legal status of consuls, consular privileges and immunities, and the institution of honorary consuls.

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Consular Functions

Consuls perform a variety of functions, all relating in some fashion to promoting the interests of the sending state and its nationals. These functions are only loosely defined in the law but develop largely through practice. Historically, promotion of the economic activity of sending-state nationals was the major function. Although this remains so in the early 21st century, the servicing of individual sending-state nationals has assumed a major role, for example, certifying documentation a sending-state national may need for various purposes, dealing with the death of a sending-state national, or assisting a sending-state national who is arrested on suspicion of crime. Cardon 2006 focuses on the promotion of the trade and economic activity of sending-state nationals. Il’in 1969 examines the activity of Soviet consuls in trade promotion, in a context in which trade is a state monopoly. Morillo Herrada 2006 argues that consuls have become more assertive in protecting sending-state nationals, in particular, in relation to two issues that have captured the attention of governments: human trafficking of their nationals and exploitation of the labor of their nationals as migrant workers. Zourek 1963 explains the functions of consuls in modern times against the background of the predominantly trade functions of consuls in earlier times.

  • Cardon, Mathieu. “La promotion et la protection des intérêts économiques.” In La protection consulaire: Journée d’études de Lyon. Edited by Société Française pour le Droit International, 137–150. Paris: Pedone, 2006.

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    Analyzes the work of consuls in promoting and protecting the economic activity of sending-state nationals in the receiving state. Links this activity to the historical origins of the consular institution, when commercial matters were central to the work of consuls.

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  • Il’in, Iu D. Основные тенденции в развитии консульского права. Moscow: Legal Literature, 1969.

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    Focuses on the activity of consuls in promoting foreign trade, particularly that of the USSR. Unusual for Soviet publications in providing coverage of the institution of honorary consuls, which was not used by the USSR.

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  • Morillo Herrada, Zósimo Roberto. “El surgimiento de un nuevo Derecho Consular Internacional (política exterior, migraciones, derechos humanos y relaciones consulares en el contexto de la globalización).” Revista peruana de derecho internacional 56.132 (2006): 51–70.

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    Regards consular law as having taken a significant turn in the late 20th century from traditional functions to more assertive servicing of conationals: protection of migrant workers, efforts against human trafficking, and protection of conationals detained on suspicion of crime.

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  • Zourek, Jaroslav. “Quelques problèmes théoriques du droit consulaire/Some Theoretical Problems of Consular Law.” Journal du droit international 90 (1963): 4–67.

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    Explains that in former times, consuls were set up by associations of an expatriate merchant community to settle disputes within that community. Surveys functions of consuls. Suggests that a state that systematically refuses to establish consular relations acts contrary to the international obligation to develop friendly relations among nations. Text in both French and English.

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Vienna Convention

The Vienna Convention on Consular Relations (VCCR), as the major multilateral treaty on the subject, has been studied extensively. Two major categories of writings are to be found. One is analyses of the drafting history, as answers to issues of interpretation have been sought by study of how particular provisions were changed during the drafting process. Analyses of the drafting history are thus important tools for scholars and litigators as they argue the meaning of particular provisions. A second category is commentaries, which give not only the author’s opinion on the meaning of particular provisions, but also often provide a guide to a provision’s drafting history.

Drafting History

The VCCR was drafted initially by the International Law Commission of the United Nations (UN), with Jaroslav Zourek as rapporteur. The International Law Commission functions under the UN General Assembly to draft multilateral treaties on major issues. The text was finalized at a conference in Vienna called by the UN in 1963. That conference followed by two years a similar conference, also in Vienna, that had produced the Vienna Convention on Diplomatic Relations (VCDR). The 1963 conference used the International Law Commission draft as the basis for its discussions but eventually made significant modifications. Jaroslav Zourek reported in 1957 (see Zourek 1957) and again in 1960 (see Zourek 1960) to the International Law Commission, having surveyed the issues that he believed needed to be covered. Conférence des Nations Unies sur les relations consulaires gives a transcript of the proceedings in Vienna, including the statements made on the floor by delegates on particular points of contention. This transcript is an essential source for construing the meaning of VCCR provisions when disputes arise over their meaning.

Commentaries

In European legal scholarship, codes of law are often analyzed in commentaries, which elucidate a code article by article. That approach has been taken by several scholars in analyzing the VCCR. The commentaries on the Vienna Convention are of two types. Lee 1966 and Marcantonatos 1974 use the main subcategories of consular law as their organizing principle, but in examining them the major focus is on the VCCR. Richtsteig 2010 and Wagner, et al. 2007 proceed more in the style of a traditional European commentary, namely, providing an entry for each article from the beginning to the end of the VCCR. Whichever style is employed, these commentaries provide a useful introduction to particular provisions, although lawyers needing to explore issues in depth may need to look further. The more recent of these commentaries also usefully reference practice in implementation of the provisions.

  • Lee, Luke T. Vienna Convention on Consular Relations. Leiden, The Netherlands: A. W. Sijthoff, 1966.

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    Covers appointment of consuls, consular functions, and privileges and immunities, with analysis that makes extensive reference to articles of the VCCR.

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  • Marcantonatos, Leon G. Les relations consulaires aux termes de la Convention de Vienne du 24 avril 1963. Thessaloniki, Greece: Institute of International Public Law and International Relations, 1974.

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    Analysis of the VCCR, organized by subject matter rather than article by article, nonetheless basing the analysis on the provisions of the Convention.

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  • Richtsteig, Michael. Wiener Übereinkommen über diplomatische und konsularische Beziehungen: Entstehungsgeschichte, Kommentierung, Praxis. 2d ed. Baden-Baden, Germany: Nomos, 2010.

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    Article-by-article commentary on both the VCDR and VCCR. Includes drafting history and state practice implementing the articles, with emphasis on practice in Germany.

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  • Wagner, Niklas, Holger Raasch, and Thomas Pröpstl. Wiener Übereinkommen über konsularische Beziehungen vom 24. April 1963: Kommentar für die Praxis. Berlin: Berliner Wissenschafts-Verlag, 2007.

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    Highly detailed commentary, article by article, of the VCCR. Includes text of German statute implementing the Convention.

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Consular Status

The sending and receipt of consuls is governed by consular law. Attaining consular status involves procedures set under international law. Consuls may be accepted as career consuls, meaning full-time salaried employees of the sending state. Or, sending states may contract with local residents to attend to consular matters on their behalf, occupying a position known as that of an honorary consul. Traditionally, consuls serve only the nationals of the sending state. More recently, in Europe member states of the European Union (EU) have agreed to provide consular assistance to nationals of other member states that do not have a consular representative in a particular locality. Green 1991 provides a primer on the various titles used for consular representatives, whereas Ganiushkin 1999a surveys the range of precise positions held by consuls bearing different titles. Bolewski 2003 examines what it finds to be abuse by those claiming titles they in fact do not hold in order to gain various privileges. Bolewski and Pierlings 2006 examines what it finds to be abuse by honorary consuls. The subject of honorary consuls is examined in Torres Cazorla 2008, which sees it as an increasingly useful mechanism for projecting a consular presence in territory where an official consulate is not warranted. Honorary consuls are typically permanent residents of the receiving state who perform consular functions for the sending state on a part-time basis. Dinstein 1966, Ganiushkin 1999b, and Seidenberger 1994 examine the privileges enjoyed by consular personnel as individuals and by the sending state for its premises and activities. Dinstein, in particular, examines the scope of personal immunities enjoyed by consuls from judicial process, which are more limited than for diplomatic personnel. Garnett 2005 treats a subject that typically gets little attention in the literature, namely, the status of locally hired personnel in their labor relations with a consulate, determining that they often lack basic protections.

  • Bolewski, Wilfried M. “Emploi abusif et protection des titres diplomatiques et consulaires.” Revue de droit international et de droit comparé 80.2 (2003): 270–284.

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    Recounts instances of fraud perpetrated by persons purporting to hold consular titles and using such a claimed title to gain the confidence of the victim. German penal code renders use of a false consular title an offense.

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  • Bolewski, Wilfried M., and Tobias Pierlings. “Honorarkonsul—Beruf oder Berufung? Völkerrechtliche und innerstaatliche Grundlagen des Honorarkonsularwesens.” Archiv des Völkerrechts 44.4 (2006): 429–459.

    DOI: 10.1628/000389206780061569Save Citation »Export Citation »E-mail Citation »

    Discusses status in Germany of honorary consuls of sending states. Argues that abuse of consular titles is widespread, analyzes the legal status of honorary consuls in Germany, and surveys the techniques available in German law to prevent abuse. Available online through purchase.

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  • Dinstein, Yoram. Consular Immunity from Judicial Process, with Particular Reference to Israel. Jerusalem: Institute for Legislative Research and Comparative Law, 1966.

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    A monograph on the immunities enjoyed by consuls, with extensive reference to case law and treaties. Focuses on the definition of “official acts,” for which a consul has immunity. Special attention is given to the practice of Israel.

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  • Ganiushkin, Boris V. “Правовое положение консульств и их персонала.” Московский журнал международного права 3 (1999a): 166–174.

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    Provides a comparative analysis of the bilateral consular conventions concluded by Russia with other countries. Most are treaties inherited by Russia from the USSR. Covers interplay between these bilateral conventions and the VCCR.

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  • Ganiushkin, Boris V. “Широта прав консульских учреждений.” Московский журнал международного права 2 (1999b): 220–246.

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    Covers consular privileges and immunities: protection of consular premises and, in particular, of consular archives and taxation of consulates, with focus on worldwide practice.

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  • Garnett, Richard. “The Precarious Position of Embassy and Consular Employees in the United Kingdom.” International and Comparative Law Quarterly 54.3 (2005): 705–718.

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    Explains the difficulties that local employees of consulates situated in the United Kingdom have in gaining judicial redress for employment-related problems, immunity from suit being provided under UK legislation. Notes a number of other countries in which local employees are entitled to sue in such situations. Available online through purchase.

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  • Green, Cami. “Counsel, Consul or Diplomat: Is There Any Practical Significance for Practitioners?” University of Miami Yearbook of International Law 1.3 (1991): 143–159.

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    An engaging account of the differences between various consular and diplomatic categories. Solid analysis of the status enjoyed by and the immunities that accompany diplomatic personnel and consuls (both career and honorary). Available online through purchase.

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  • Seidenberger, Ulrich. Die diplomatischen und konsularischen Immunitäten und Privilegien: Ein Beitrag zur Diskussion über die Reformbedürftigkeit des Diplomaten- und Konsularrechts aus staats- und völkerrechtlicher Sicht. Schriften zum Staats- und Völkerrecht 55. Frankfurt am Main and New York: Peter Lang, 1994.

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    Based on the author’s 1992 dissertation. Covers the various immunities and privileges enjoyed by diplomatic and consular personnel and institutions. Useful for showing the differences between those enjoyed in the diplomatic context and those enjoyed in the consular context.

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  • Torres Cazorla, María Isabel. “La reactivación de los consulados honorarios en la práctica española de las últimas décadas.” Revista española de derecho internacional 60.1 (2008): 97–112.

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    Explains that Spain has, since the late 20th century, turned increasingly to the use of honorary consuls. Major reasons are Spanish investment abroad, Spaniards touring in distant locations, long-distance Spanish fishing, and the emergence of new states (e.g., in eastern Europe), where Spain desires a consular presence.

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Consular Practice in Particular Territories

Although consular law is largely universal, each state has its own laws and procedures that set the basis for the functioning of its consular service. Accordingly, one finds writers analyzing consular practice from a local perspective. Many of the items included under other headings emphasize the practice of particular states, but some focus on it nearly exclusively. Thus, Bobylev and Zubkov 1966 analyzes the consular institutions of the USSR, whereas Bud 1999 does the same for Mongolia, and Hecker 1999 for Germany. Padilla Bendezú 1999 gives a detailed account of Peru’s regulations on consular activity, whereas Trajkovski 1991 covers general consular law issues, but with a strong focus on the practice of Yugoslavia. Some states share consular work with other states, either on a bilateral or a regional basis. The European Union (EU), in particular, as explained in Council of the European Union 2010 and Commission of the European Communities 2006, requires EU member states to provide consular services for nationals of other EU member states that lack a consular presence in the particular territory. Cot 2009 explains practical difficulties arising out of this practice, notably, that some EU member states regard it as an obligation to extend consular protection, whereas others regard it as a matter of discretion.

Consular Protection of Detained Sending State Nationals

One traditional function of consuls is to assist nationals who are arrested in the receiving state on suspicion of a criminal offense or who are detained for any other reason. A receiving state is required to facilitate such assistance in a variety of ways. This receiving state obligation yields corresponding rights for the sending state: to gain access to a detained national and to be afforded facilities to provide assistance both in dealing with incarceration and in preparing a legal defense against criminal charges. Quigley, et al. 2010 provides a comprehensive guide to the receiving state’s obligation to afford consular access. It reproduces excerpts from domestic legislation and regulations on the subject, provisions of bilateral treaties, and decisions of domestic and international courts. Doumbe-Bille 2006 finds the relevant Vienna Convention of Consular Relations (VCCR) provision—Article 36—insufficiently precise in defining the obligations of a receiving state. This essay urges courts to clarify certain points. Gherari 2006 recalls that at the VCCR, some thought that a receiving state should inform the sending state in every instance of the arrest of a sending state national but that the position that prevailed (final text of Article 36) was that the receiving state’s obligation is to inform the foreign national about consular access and then to follow the foreign national’s lead as to whether the sending state needs to be informed about the arrest. Many works, such as Aceves 1998, Buys 2011, Gisvold 1994, Lo 2005, and Shank and Quigley 1995, find the United States deficient for failing to ensure that foreign nationals are advised about consular access. McGuinness 2006 argues that it is the use of capital punishment in the United States that has generated international concern over failings in the United States in implementing the obligation to inform foreign nationals about consular access.

  • Aceves, William J. “Murphy v. Netherland, 116 F.3d 97.” American Journal of International Law 92.1 (1998): 87–91.

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    Recounts and criticizes decision of the US Court of Appeals to deny relief to a Mexican national who was convicted of murder and sentenced to death but who was not advised about consular access. More broadly, finds a “pervasive disregard” by state-level officials of the notification obligation in the United States. Available online for purchase.

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  • Buys, Cindy Galway, Scott D. Pollock, and Ioana Navarette Pellicer. “Do unto Others: The Importance of Better Compliance with Consular Notification Rights.” Duke Journal of Comparative and International Law 21.3 (2011): 461–501.

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    Explains the significance of consular notification, using examples from the practice of the Mexican consulate in Chicago; suggests legal strategies in the United States to secure a remedy in cases of noncompliance with the consular notification obligation.

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  • Doumbe-Bille, Stéphane. “L’assistance consulaire.” In La protection consulaire: Journée d’études de Lyon. Edited by Société Française pour le Droit International, 101–114. Paris: Pedone, 2006.

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    Suggests that the text of VCCR, Article 36, is insufficiently precise on consular assistance, recounts an effort for an additional protocol to the VCCR on consular assistance, and posits that clarification is best achieved through interpretations by the International Court of Justice (ICJ). Recalls ICJ statement in the Tehran hostages case on the importance of consular assistance.

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  • Gherari, Habib. “L’institution consulaire entre tradition et modernité.” In La protection consulaire: Journée d’études de Lyon. Edited by Société Française pour le Droit International, 7–38. Paris: Pedone, 2006.

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    Provides a history of the evolution of consular work in protecting conationals. Gives useful account of the drafting history of the VCCR on the issue of whether notifying a consul upon the arrest of a foreign national should be automatic or should depend on the wishes of the foreign national.

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  • Gisvold, Gregory Dean. “Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities.” Minnesota Law Review 78.3 (1994): 771–803.

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    Argues the importance, in the United States, of the federal government’s taking the lead in ensuring the implementation of the right of detained foreign nationals to be informed about consular access.

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  • Lo, Ying-Jen. Human Rights Litigation Promoting International Law in U.S. Courts. American Legal Institutions. New York: LFB, 2005.

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    Recounts efforts by defense attorneys to raise nonnotification about consular access in capital cases in the United States. Provides detailed analysis of how US courts dealt with such pleas, criticizing the courts for rejecting many of these pleas.

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  • McGuinness, Margaret E. “Medellín, Norm Portals, and the Horizontal Integration of International Human Rights.” Notre Dame Law Review 82 (2006): 755–842.

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    Regards the United States’ posture as an outlier user of capital punishment as the underlying dynamic beneath the flurry of litigation over consular access in the years around the turn of the 21st century; views the VCCR as a “norm portal” that may bring abolition of capital punishment to the United States.

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  • Quigley, John, William J. Aceves, and S. Adele Shank. The Law of Consular Access: A Documentary Guide. Routledge Research in International Law. London and New York: Routledge, 2010.

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    Provides excerpts from multilateral and bilateral treaties on consular access as well as excerpts of domestic statutes and domestic and international court decisions on the range of issues involved in consular access.

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  • Shank, S. Adele, and John Quigley. “Foreigners on Texas’s Death Row and the Right of Access to a Consul.” St. Mary’s Law Journal 26 (1995): 719–753.

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    Explains three cases of foreigners sentenced to death in Texas, all of whom claimed that they had not been informed by authorities about consular access; makes proposals to ensure that such information is given to foreigners detained on criminal charges.

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Consular Access as a Human Right

The obligation of a receiving state to facilitate consular access opens the question of whether rights are thereby created not only for the sending state, but for its nationals as well. This question has been considered of importance to courts when a foreign national seeks a remedy for a failure of the receiving state to facilitate consular access. International decision-making bodies have found such a right to flow from the Vienna Convention on Consular Relations (VCCR). Beyond consular law such a right may exist as a human right under human rights law, separate and apart from obligations in consular law. A number of human rights treaties refer to the right of consular access for a foreign national detainee as a right that adheres to the individual. Perruchoud 2007 notes the inclusion of a provision on consular access in a treaty providing protections for migrant workers who are arrested in the state in which they are working. As noted by Aceves 2000, Cerna 2008, and Uribe 1997, the Inter-American Court of Human Rights, in a 1999 advisory opinion, found consular access to be a right that adheres to the individual as a human right. Antônio Augusto Cançado Trindade (Cançado Trindade 2007) explains, as a judge of that Court, why he views consular access as a human right. Vallarta Marrón 2004 argues that once consular access is seen as a human right, courts must reverse the conviction of a foreign national who was convicted of crime but whose consular access right was not respected. Decaux 2006 takes the idea of consular access as a human right a step further, maintaining that if the receiving state fails in its consular access obligation, the sending state may be liable to its national for failing to ensure compliance by the receiving state.

  • Aceves, William J. “The Right to Information on Consular Assistance in the Framework of the Guarantee of the Due Process of Law: Advisory Opinion OC-16/99.” American Journal of International Law 94.3 (2000): 555–563.

    DOI: 10.2307/2555324Save Citation »Export Citation »E-mail Citation »

    Recounts proceedings in the Inter-American Court of Human Rights on Mexico’s request for an advisory opinion on consular access as an element of due process of law. Notes that the Court, in accepting this analysis, regards due process of law as an evolving concept. Available online through purchase.

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  • Cançado Trindade, Antônio Augusto. “The Humanization of Consular Law: The Impact of Advisory Opinion no. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice.” Chinese Journal of International Law 6.1 (2007): 1–16.

    DOI: 10.1093/chinesejil/jml059Save Citation »Export Citation »E-mail Citation »

    Develops a point the author made in a concurring opinion he wrote as a judge of the Inter-American Court of Human Rights in the advisory opinion referenced in the title—namely, that international law is being “humanized” in a variety of ways and that developments in consular access provide an example.

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  • Cerna, Christina M. “The Right to Consular Notification as a Human Right.” Suffolk Transnational Law Review 31.2 (2008): 419–469.

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    Recounts international proceedings on claims of a violation of consular access and shows that a right of consular access has been found to be a matter of due process for a foreign national.

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  • Decaux, Emmanuel. “La protection consulaire et les droits de l’homme.” In La protection consulaire: Journée d’études de Lyon. Edited by Société Française pour le Droit International, 51–72. Paris: Pedone, 2006.

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    Finds consular access to be a due process right of a foreign national in the first instance over and against the receiving state. Argues that the sending state can be secondarily liable under human rights law for the delinquencies of the receiving state if it (the sending state) fails to provide consular assistance.

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  • Perruchoud, Richard. “Consular Protection Assistance.” In International Migration Law: Developing Paradigms and Key Challenges. Edited by Ryszard Cholewinski, Richard Perruchoud, and Euan MacDonald, 71–85. The Hague: TMC Asser, 2007.

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    Briefly summarizes consular protection in the context of the developing law relating to the protection of migrants. Notes the inclusion of a consular access provision in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).

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  • Uribe, Victor M. “Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice.” Houston Journal of International Law 19.2 (1997): 375–424.

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    Contends that consular protection is vital to ensure that foreign nationals accused of crime are provided fair treatment and fair trials. Characterizes the rights of such foreign nationals as human rights.

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  • Vallarta Marrón, José Luis. “Obligación de informar a todo detenido extranjero de su derecho a la protección consular, según el derecho internacional.” Revista de la Facultad de Derecho de México 54.242 (2004): 281–318.

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    Argues that consular access is required not only under the VCCR, but also under human rights treaties that call for all detainees to be afforded their rights. Asserts that for a foreign national, consular access is such a right. This characterization, it is maintained, requires reversal of a conviction if consular access is not observed.

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Paraguay v. USA

A number of sending states have taken receiving states to the International Court of Justice (ICJ) over allegations that the receiving states have failed in their obligations to sending-state nationals under arrest. Three such cases have been filed against the United States. The first was filed by Paraguay in 1998. This filing resulted in the issuing of an interim order by the ICJ to the United States to ensure that the Paraguayan national in the case not be executed while the case was pending. Despite this order, the Paraguayan national was executed. The case did not result in a ruling on the merits, because some months after the execution Paraguay dismissed the suit. Aceves 1998a and Shank and Quigley 1998–1999 provide overviews of Paraguay’s case, finding the United States in default of its obligations both in regard to its failure to remedy a consular access violation and to heed the ICJ interim order. Aceves 1998b argues that the federal government of the United States should sue states in which the consular access violation occurs if necessary to achieve a remedy for a foreign national. Bradley 1999 addresses the US failure to heed the ICJ interim order but finds the failure appropriate and consistent with what the author views as a US tradition in international law of separating international obligations from the work of the courts.

  • Aceves, William J. “Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Provisional Measures Order/Breard v. Greene, 118 S.Ct. 132.” American Journal of International Law 92.3 (1998a): 517–523.

    DOI: 10.2307/2997924Save Citation »Export Citation »E-mail Citation »

    Explains the order issued by the ICJ, asking the United States not to allow the execution of a Paraguayan national, Angel Breard, while Paraguay’s case was pending. Recounts the unsuccessful request by the US secretary of state to the governor of state of Virginia that the execution be postponed. Available online through purchase.

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  • Aceves, William J. “The Vienna Convention on Consular Relations: A Study of Rights, Wrongs and Remedies.” Vanderbilt Journal of Transnational Law 31 (1998b): 257–324.

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    Recommends that the federal government of the United States take legal action against states that fail to comply with the consular access provisions of the Vienna Convention on Consular Relations (VCCR) and that legislation be adopted to require compliance.

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  • Bradley, Curtis A. “Breard, Our Dualist Constitution, and the Internationalist Conception.” Stanford Law Review 51.3 (1999): 529–566.

    DOI: 10.2307/1229264Save Citation »Export Citation »E-mail Citation »

    Argues that US courts appropriately declined to defer to the ICJ’s request that Breard not be executed pending resolution of Paraguay’s case. The author views nondeference in this instance as consistent with what he sees as US traditional adherence to a dualist conception of international law. Available online by subscription.

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  • Shank, S. Adele, and John Quigley. “Obligations to Foreign Nationals Accused of Crime in the United States: A Failure of Enforcement.” Criminal Law Forum 9.1–2 (1998–1999): 99–149.

    DOI: 10.1007/BF02677814Save Citation »Export Citation »E-mail Citation »

    Explains the ICJ litigation initiated by Paraguay against the United States, including Paraguay’s request for interim measures to avert the execution of Breard and his subsequent execution. Available online through purchase.

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LaGrand Case

A second consular access case was filed against the United States in the International Court of Justice (ICJ), by Germany, in relation to a German national facing imminent execution. This filing resulted initially in the issuing of an interim order to the United States to ensure that Walter LaGrand not be executed while the case was pending. (His brother, Karl, who was charged with and convicted of the same crimes, was executed.) Walter LaGrand was executed shortly thereafter, in violation of that order. The case then proceeded to memorials and oral argument and resulted in the Court’s first judgment on the merits on a consular access claim. The ICJ found liability for failure to comply with the notification requirement. The ICJ ruled that in the event of a conviction of a foreign national who was not advised about consular access, the receiving state must ensure the “review and reconsideration” of the conviction and sentence in light of the violation. Rejecting one argument of the United States, the ICJ said that such review and reconsideration cannot be avoided even if the foreign national failed to raise the issue of the violation at the stage required by local procedural rules. The German national’s execution soon after the ICJ’s interim order led the ICJ to rule, for the first time in its history, that an interim order is legally binding. The LaGrand judgment thus dealt with two distinct issues: the obligation to remedy a consular access violation and the obligation to comply with an interim order. Aceves 2002 and Matringe 2002 provide an overview of the judgment, addressing both issues. Martin 2002 finds fault with the failure of the United States to comply with the interim order. Simma and Hoppe 2007 offers an extensive factual account of Germany’s involvement from the time it learned that the LaGrand brothers were facing execution. Most texts analyzing the LaGrand judgment have focused on the remedy issue. Mennecke 2001 compares the ICJ’s analysis to that of the Inter-American Court of Human Rights and finds the latter making a better reasoned and therefore stronger statement about the need to remedy a consular access violation. Fitzpatrick, et al. 2002 argues that a remedy like reversal of a conviction is not required if the proceedings otherwise comport with due process standards. Quigley 2002 asserts that US courts were following the lead of the Department of State and its position (as recounted by Fitzpatrick, et al.), and as a result were refusing to provide a judicial remedy for a consular access violation. Schiffman 2002 suggests procedural avenues that foreign nationals might use to gain a remedy. Fitzpatrick 2002 focuses on a subissue of the remedy issue, namely, whether a foreign national can be precluded from raising a consular access violation in a court if the matter was not raised at the procedural stage required by local law (procedural default).

  • Aceves, William J. “LaGrand: International Court of Justice Judgment on Duty to Inform Detained Persons of Their Right to Consular Assistance and on Legal Effect of Provisional Measures.” American Journal of International Law 96.1 (2002): 210–218.

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    Explains the judgment of ICJ in the LaGrand case as the first merits judgment of the Court on consular access; notes in particular the ICJ’s first-time ruling that interim measures orders are legally binding.

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  • Fitzpatrick, Joan. “The Unreality of International Law in the United States and the LaGrand Case.” Yale Journal of International Law 27.2 (2002): 427–433.

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    States that the ICJ takes positions at odds with those of the United States on key issues relating to the consequences of a failure to inform a foreign national about consular access, in particular, the US Supreme Court’s position that raising a claim must be done within the limits of domestic rules on default of claims.

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  • Fitzpatrick, Joan, Bruno Simma, Catherine Brown, John Quigley, and Nigel Rodley. “Consular Rights and the Death Penalty after LaGrand.” Proceedings of the Annual Meeting of the American Society of International Law 96 (2002): 309–319.

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    Brown, a lawyer who argued LaGrand for the United States, writes that the US government in the LaGrand proceedings accepted the position that the right of consular access is a right that pertains to an individual foreign national but questioned whether noncompliance with that right should require the reversal of a conviction if the trial was otherwise fair (pp. 315–317). Available online through purchase.

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  • Martin, Pierre-Marie. “Carences tragiques de la Convention de Vienne sur les relations consulaires: L’affaire LaGrand devant la Cour internationale de Justice.” Le Dalloz 10 (2002): 823–828.

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    Analyzes the failure of the United States in the LaGrand case to comply with the ICJ’s provisional measures order that a German national not be executed while the case was pending.

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  • Matringe, Jean. “L’arrêt de la Cour internationale de Justice dans l’affaire LaGrand (Allemagne c. États-Unis d’Amérique) du 27 juin 2001.” Annuaire français de droit international 48 (2002): 215–256.

    DOI: 10.3406/afdi.2002.3701Save Citation »Export Citation »E-mail Citation »

    Detailed analysis of the major issues in the LaGrand judgment: the admissibility of the case, the binding nature of provisional measures orders, the issue of procedural default, the Court’s ruling that review and reconsideration of conviction and sentence are required in the event of a violation.

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  • Mennecke, Martin. “Towards the Humanization of the Vienna Convention of Consular Rights: The LaGrand Case before the International Court of Justice.” German Yearbook of International Law 44 (2001): 430–468.

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    Argues that the right of consular access should be read in light of the development of human rights norms in the late 20th century; hence finds the advisory opinion of the Inter-American Court of Human Rights better reasoned than the LaGrand judgment.

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  • Quigley, John. “LaGrand: A Challenge to the U.S. Judiciary.” Yale Journal of International Law 27.2 (2002): 435–440.

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    Finds that US courts, even after the LaGrand judgment, were rejecting claims of a consular access violation by citing US Department of State directives that the right of consular access is not invocable in court and is no basis for reversing a criminal conviction.

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  • Schiffman, Howard S. “The LaGrand Decision: The Evolving Legal landscape of the Vienna Convention on Consular Relations in U.S. Death Penalty Cases.” Santa Clara Law Review 42.4 (2002): 1099–1135.

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    Examines procedural mechanisms that may be employed in US courts to gain enforcement of the consular access obligations explained by the ICJ in LaGrand.

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  • Simma, Bruno, and Carsten Hoppe. “The LaGrand Case: A Story of Many Miscommunications.” In International Law Stories. Edited by John E. Noyes, Laura A. Dickinson, and Mark W. Janis, 371–405. New York: Foundation Press, 2007.

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    Simma represented Germany in LaGrand. The authors recount how Germany tried by diplomatic representations to stop the scheduled execution in the US state of Arizona of two German brothers, and how, after one was executed, Germany filed in the ICJ to stop the execution of the other. The authors also analyze subsequent US court practice on consular notification violations.

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Avena Case

The second consular access case to result in a ruling on the merits in the International Court of Justice (ICJ) was filed by Mexico against the United States, in respect to fifty Mexican nationals who at the time were under death sentences in US states. Mexico alleged that its nationals had not been informed upon arrest about consular access. The Court issued an interim order against the execution of the Mexican nationals during the pendency of the case. The ICJ’s judgment on the merits built on that in LaGrand with respect to a remedy in the event of a consular access violation by clarifying that the “review and reconsideration” for which the ICJ called in LaGrand must be carried out by a court if the matter is presented to it. Several texts, such as Requena Casanova 2004 and Quigley 2004, focus on this issue as the key point in the Avena judgment. Requena Casanova predicted that the ruling would lead to an increase in claims by foreign nationals before the courts of the United States over consular access violations. Linda E. Carter writes in support of the ICJ’s position that courts must act to provide a remedy, contending that remedies by other agencies, such as executive clemency, are not adequate (Carter 2005). A number of works, like Benlolo-Carabot 2004, cover all major aspects of the Avena judgment. Dupuy 2006, Dominicé 2005, and Simma and Hoppe 2005 express agreement with the ICJ’s affirmance of its view stated in LaGrand, and reiterated in Avena, that procedural default cannot be raised by the courts of the receiving state as a reason not to entertain a claim of a consular access violation. Dubin 2005 raises the possibility that implementation of consular notification obligations in the United States might improve as result of its having given assurances to both Germany and Mexico of improved compliance in the future. Martin 2003 focuses on the interim order and argues, based on the ICJ’s ruling in LaGrand, that such orders are binding, that this order must be respected by the United States with respect to the Mexican nationals.

  • Benlolo-Carabot, Myriam. “L’arrêt de la Cour internationale de Justice dans l’affaire Avena et autres ressortissants mexicains (Mexique c. États-Unis d’Amérique), du 31 mars 2004.” Annuaire français de droit international 50 (2004): 259–291.

    DOI: 10.3406/afdi.2004.3796Save Citation »Export Citation »E-mail Citation »

    Detailed review of the Avena case in its major aspects: the admissibility of the case, the nationality of a detainee as a criterion for obligations of a receiving state, the meaning of “without delay” for informing a detainee about consular access, the legal consequences of a receiving-state violation.

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  • Carter, Linda E. “Lessons from Avena: The Inadequacy of Clemency and Judicial Proceedings for Violations of the Vienna Convention on Consular Relations.” Duke Journal of Comparative and International Law 15.2 (2005): 259–280.

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    Contends that clemency is insufficient to remedy consular access violations, because clemency is subject to little judicial oversight to ensure consistency; argues that judicial proceedings in the United States are insufficient because of the limited nature of collateral proceedings, in particular, the rule on procedural default.

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  • Dominicé, Christian. “L’arrêt AVENA et le sort judiciaire des droits individuels.” In Internationale Gemeinschaft und Menschenrechte: Festschrift für Georg Ress zum 70. Geburtstag. Edited by Jürgen Bröhmer, Roland Bieber, Christian Calliess, Christine Langenfeld, Stefan Weber, and Joachim Wolf, 55–62. Cologne: Heymanns, 2005.

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    Notes the ICJ acceptance of Mexico’s argument that the VCCR creates rights for individual foreign nationals and the ICJ rejection of US defense of procedural default. Argues that the rights accorded to an individual by a treaty like the VCCR can go beyond rights protected as human rights.

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  • Dubin, L. “Les guaranties de non-répétition àl’aune des affaires LaGrand et Avena: La revolution n’aura pas lieu.” Revue générale de droit international public 109.4 (2005): 859–888.

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    Notes that the United States gave assurances, in response to demands by Germany and Mexico, for guarantees to inform foreign nationals in the future about consular access. Maintains that the impact will be limited by the US withdrawal from the Optional Protocol to the VCCR.

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  • Dupuy, Pierre-Marie. “La protection consulaire sous les feux de la jurisprudence internationale.” In La protection consulaire: Journée d’études de Lyon. Edited by Société Française pour le Droit International. 39–50. Paris: Pedone, 2006.

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    Based on the author’s experience as counsel for Germany and then for Mexico in their cases against the United States; asserts that the US position on procedural default is inconsistent with VCCR Article 36(2); explains how Mexico unsuccessfully sought the reversal of criminal convictions as relief for consular notification violations.

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  • Martin, Pierre-Marie. “Les carences de la Convention de Vienne sur les relations consulaires: Nouveaux développements.” Recueil Le Dalloz 179.22 (2003): 1450–1452.

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    Written shortly after the ICJ, in the Avena case, issued an order that certain Mexican nationals named by Mexico not be executed while the case was pending, this article argues that the United States is required to comply with this provisional measures order.

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  • Quigley, John. “Avena and Other Mexican Nationals (Mexico v United States of America): Must Courts Block Executions Because of a Treaty?Melbourne Journal of International Law 5.2 (2004): 450–461.

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    Recounts ICJ judgment in the Avena case, in particular, the ICJ’s clarification that when it said, in LaGrand, that review and reconsideration is required when a foreign national has been convicted absent compliance with consular notification requirements, this means review and reconsideration by a court, as opposed to executive agencies.

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  • Requena Casanova, Millán. “La protección efectiva de los derechos consulares en el plano judicial: A propósito de la Sentencia Avena (México c. Estados Unidos de América).” Revista española de derecho internacional 56.2 (2004): 777–792.

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    A note on the Avena judgment, covering jurisdiction and admissibility and the ICJ’s treatment of legal consequences of a breach of consular access obligations; suggests that the judgment may encourage pursuit of judicial remedies by foreign nationals in the United States whose consular access rights have been violated.

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  • Simma, Bruno, and Carsten Hoppe. “From LaGrand and Avena to Medellín—A Rocky Road toward Implementation.” Tulane Journal of International and Comparative Law 14.1 (2005): 7–59.

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    Criticizes those US courts that have held, contrary to LaGrand, that the VCCR does not provide for a right that adheres to the individual foreign national upon arrest and criticizes those US courts that apply rules on procedural default to defeat consular access claims.

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Withdrawal from Vienna Convention Optional Protocol

Paraguay, Germany, and Mexico were able to secure jurisdiction over the United States for their cases in the International Court of Justice (ICJ) by virtue of a protocol to the Vienna Convention on Consular Relations (VCCR) in which states agree that any VCCR state party may sue any other over an alleged violation. After the Court’s judgment in Mexico’s case (Avena), the United States sent a communication to the United Nations (UN) secretary-general, stating that it was withdrawing from that protocol. In press statements the United States explained that, in its view, the ICJ’s rulings in LaGrand and Avena had misconstrued VCCR, Article 36. In the US view, the withdrawal action means that no other state party to the VCCR has jurisdiction over it under the Optional Protocol and that, correspondingly, the United States has no jurisdiction under the Optional Protocol to sue any other state party to the VCCR. While the withdrawal notice was prompted by US displeasure over rulings on consular access, it applies to any and all issues of consular law. Stokes 2006 questions the wisdom of the filing of the withdrawal notice, suggesting that it harms the United States in respect to gaining enforcement of consular law. An unanswered question is the legal effect of the US communication. The Optional Protocol contains no provision authorizing withdrawal. Many treaties contain a provision allowing states to “denounce” (the more traditional term), but the Optional Protocol does not. Quigley 2009 argues that the withdrawal notice was not effective. Reisman and Arsanjani 2007 argues that it was. The validity of the withdrawal notice could, in an appropriate case, be considered by the ICJ. The clear US position is that it is no longer a party to the Optional Protocol.

Consular Notification

Claims of a violation of consular access have bedeviled domestic courts. These claims typically seek a remedy based on the Vienna Convention on Consular Relations (VCCR). Thus, they involve the larger question of the application of international legal norms in domestic courts, a matter that is not handled uniformly around the world. The International Court of Justice (ICJ) indicated in Avena that it falls to the judiciary in VCCR member states to review convictions in which a foreign national was not informed about consular access. That injunction may require domestic courts to set aside the rules of criminal procedure that they would normally follow. At the same time, in most countries, treaty obligations are, in principle, to be implemented by the courts.

Germany

A number of cases have arisen in criminal courts in Germany in which a foreign national objected that consular access had not been explained by the arresting authorities. These foreign nationals sought a remedy. Several of these cases went to Germany’s Constitutional Court on the strength of the VCCR. In a 2006 case, as explained in Gogolin 2007 and Hoppe 2007, the German Constitutional Court stated that Germany must follow the rulings of the ICJ, given Germany’s adherence to the VCCR and its Optional Protocol. Gogolin 2007 and Hoppe 2007 juxtapose that decision with decisions of the US Supreme Court that show less deference to the ICJ. Gärditz 2007 expresses less conviction that the German Constitutional Court should so defer. In subsequent cases, as explained in Esser 2008, the regular German courts that ultimately had to decide what to do with these consular access violation claims decided that rather than reverse convictions, they would reduce sentences by way of compensating for the violation.

  • Esser, Robert. “Rechtsfolgen eines Verstosses gegen die Belehrungspflicht aus Artikel 36 WÜK: Zugleich Anmerkung zum Urteil des BGH v. 20.12.2007—3 StR 318/07.” Juristische Rundschau 7 (2008): 271–279.

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    Comments on a decision of 20 December 2007, by Germany’s State Supreme Court, and on several other decisions around the same time by that Court, in which judicial remedies were sought by foreign nationals who were convicted without having been informed properly about consular access.

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  • Gärditz, Klaus Ferdinand. “Article 36, Vienna Convention on Consular Relations—Treaty Interpretation and Enforcement—International Court of Justice—Fair Trial—Suppression of Evidence.” American Journal of International Law 101.3 (2007): 627–635.

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    Expresses skepticism about a 2006 decision of the German Constitutional Court in which the Court (1) found a denial of the right of consular assistance to be a denial of the right of fair trial under Germany’s Constitution and (2) showed considerable deference to the decision of the ICJ in the LaGrand case.

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  • Gogolin, Jana. “Avena and Sanchez-Llamas Come to Germany: The German Constitutional Court Upholds Rights under the Consular Convention on Consular Relations.” German Law Journal 8.3 (2007): 261–278.

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    Contrasts a 2006 decision of the German Constitutional Court with a 2006 decision of the US Supreme Court (Sanchez-Llamas v. Oregon) in the extent to which the two courts follow decisions of the ICJ in cases in which a foreign national has been convicted of crime without having been properly informed of the right of access to a consul. Finds the German court more receptive than the US court.

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  • Hoppe, Carsten. “Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights.” European Journal of International Law 18.2 (2007): 317–336.

    DOI: 10.1093/ejil/chm015Save Citation »Export Citation »E-mail Citation »

    Compares implementation of ICJ decisions on consular access by courts of the United States and Germany, finding that German courts are more willing to follow those decisions.

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The United States

Much analysis has been devoted to claims raised in US courts over a failure of notification about consular access. The United States has been the most fertile territory for such claims. Most have been criminal cases, in which a foreign national convicted of crime seeks a remedy that would result in annulment of the conviction or modification of the penalty. Many of these criminal cases have been capital cases, in which a foreign national seeks remission of the death sentence based on a violation of consular access. A few of the cases have been civil cases, in which a foreign national sues the government for money damages. Several major cases have been decided in the US Supreme Court. While analyses of leading US Supreme Court decisions follow under separate headings, this section compiles analyses of the run of cases in US courts. Babcock 2002 and Clarke and Whitt 2007 focus on cases in which the sentence was death, as these cases have aroused the most intense involvement by sending states. These works are generally critical of the US courts for underestimating the significance of a consular access violation. Fleishman 2003, also focusing on capital cases, recounts the extensive involvement in the United States of the government of Mexico in cases in which its nationals faced possible execution. Velez 2009 analyzes a noncapital criminal case that reflects an approach that has appealed to a number of US courts: finding a consular access violation to require reversal of a conviction not because of the violation itself, but because the failure of the foreign national to raise the issue deprived the foreign national of the effective assistance of counsel.

  • Babcock, Sandra. “The Role of International Law in United States Death Penalty Cases.” Leiden Journal of International Law 15.2 (2002): 367–387.

    DOI: 10.1017/S0922156502000183Save Citation »Export Citation »E-mail Citation »

    Analyzes instances of failure of consular notification obligations in cases in which the foreign national is subsequently convicted of murder, leading to a sentence of death.

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  • Clarke, Alan W., and Laurelyn Whitt. The Bitter Fruit of American Justice: International and Domestic Resistance to the Death Penalty. Hanover, NH: University Press of New England, 2007.

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    Chapter 4, “Honoring Treaty Commitments: The Vienna Convention on Consular Relations,” analyzes consular access as one instance of a legal institution that works to restrict application of capital punishment (pp. 50–72).

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  • Fleishman, Michael. “Reciprocity Unmasked: The Role of the Mexican Government in Defense of Its Foreign Nationals in United States Death Penalty Cases.” Arizona Journal of International and Comparative Law 20.2 (2003): 359–407.

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    Details efforts by government of Mexico in the United States to provide consular assistance when Mexican nationals are charged with a capital offense, in particular, the founding of the Mexican Capital Legal Assistance Program to ensure proper defense; details Mexican governmental activity in several specific cases.

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  • Velez, Angela Lee. “A Vindication of the Right to Consular Assistance: The Sixth Amendment in Osagiede v. United States.” North Carolina Journal of International Law and Commercial Regulation 35.1 (2009): 263–283.

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    Analyzes a US Court of Appeals case in which receiving-state authorities did not inform about consular access, and the matter was not raised at trial; the Court said that a remedy is required on grounds of the ineffective assistance afforded by the foreign national’s defense counsel in failing to raise the issue of noncompliance by receiving-state authorities.

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Judicial Remedies for Violations

A key issue in claims made in court for a remedy for a failure of notification about consular access is the consequence of such a failure. Foreign nationals have argued that the failure should vitiate a conviction. Courts have often required a showing, in addition, that the failure must have been connected in some fashion to the conviction. This requirement is sometimes framed as one of prejudice. Clarke 2006 notes that the issue of what to do about a consular access violation may fall to the executive branch of government, which in the United States means the governor of the state whose courts entered the conviction, and finds this avenue of redress less appropriate than a judicial remedy. Epps 2004 asserts, similarly, that courts should provide a remedy for a consular access violation in the way they typically provide a remedy for a violation of a constitutionally based right. Sridhar 2006 argues for the need for US courts to provide a remedy for a consular access violation based on the Avena judgment. Halberstam 2005, noting that US courts were not providing remedies, suggested that when courts decline a remedy based on procedural default, a new avenue of redress be provided. A major source of litigation in US courts has been claims to suppress an incriminating statement made by a foreign national who was not advised about consular access. Kirgis 2001 and Quigley 2004b reference the principle of redress by restoring the prior existing situation as a reason to suppress such a statement. Addressing claims more generally, Quigley 2004a contends that beyond those based on the text of the VCCR, remedies are required under a body of international law that underlies treaty obligations and requires a remedy even if the treaty text is silent on remedies. Quigley 2005 urges that US courts adopt the approach of a hemispheric human rights organ calling for reversal of convictions in the face of a consular access violation.

  • Clarke, Harry S. “Determining the Remedy for Violations of Article 36 of the VCCR: Review and Reconsideration and the Clemency Process after Avena.” George Washington International Law Review 38.1 (2006): 131–158.

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    Maintains the inadequacy of clemency as a mechanism for correcting a consular access violation but recounts a US case in which clemency did in fact lead to a remedy.

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  • Epps, Valerie. “Violations of the Vienna Convention on Consular Relations: Time for Remedies.” Willamette Journal of International Law and Dispute Resolution 11 (2004): 1–37.

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    Asserts that courts should provide a remedy, including, when appropriate, the suppression of an incriminating statement, whereby, as with a treaty like the VCCR, a right is provided that is closely akin to a constitutional right.

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  • Halberstam, Malvina. “Lagrand and Avena Establish a Right, but Is There a Remedy? Brief Comments on the Legal Effect of Lagrand and Avena in the U.S.” International Law Students Association Journal of International and Comparative Law 11 (2005): 415–419.

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    Proposes that the federal habeas corpus statute be amended to provide review in a federal court for a consular notification violation if the state courts decline on grounds of procedural default.

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  • Kirgis, Frederic L. “Restitution as a Remedy in U.S. Courts for Violations of International Law.” American Journal of International Law 95.2 (2001): 341–348.

    DOI: 10.2307/2661400Save Citation »Export Citation »E-mail Citation »

    Argues that if a foreign national is not advised about consular access and makes an incriminating statement to authorities, the international law principle on restitution as a remedy for breach of an obligation requires that the statement not be used in evidence at trial against the foreign national. Available online through purchase.

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  • Quigley, John. “The Law of State Responsibility and the Right of Consular Access.” Willamette Journal of International Law and Dispute Resolution 11 (2004a): 39–52.

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    Contends that the VCCR yields rights that adhere to a foreign national regarding consular access and that under the general law applicable for violation of international obligations, called the law of state responsibility, a remedy is required for a violation of consular access obligations.

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  • Quigley, John. “Suppressing the Incriminating Statements of Foreigners.” William & Mary Bill of Rights Journal 13 (2004b): 339–362.

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    Argues that where a foreign national has been arrested but not advised about consular access, any incriminating statement elicited by authorities is not admissible in evidence against the foreign national.

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  • Quigley, John. “Application of Consular Rights to Foreign Nationals: Standard for Reversal of a Criminal Conviction.” International Law Students Association Journal of International and Comparative Law 11.2 (2005): 403–413.

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    Cites case law of the Inter-American Commission on Human Rights, in which the Commission has said that a failure to inform a foreign national about consular access gives rise to a presumption that the proceedings against the foreign national were unfair.

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  • Sridhar, Aparna. “Creating Judicial Remedies for Violations of the Vienna Convention on Consular Relations: A Proposed Resolution to Medellín v. Dretke.” Stanford Journal of Civil Rights and Civil Liberties 2.2 (2006): 333–364.

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    Maintains that, in light of Avena, state courts in the United States are bound to afford “review and reconsideration” to convicted foreign nationals whose right to consular access was not implemented.

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Sanchez-Llamas v. Oregon

Sanchez-Llamas v. Oregon is the major US Supreme Court case on the consequences of a consular notification violation and on procedures for challenging a violation. The case involved two foreign nationals, one convicted in the US state of Oregon, the other in the US state of Virginia. The Oregon case dealt with the question of whether an incriminating statement made by a foreign national who was not advised about consular access before making the statement was entitled to have that statement suppressed from use at trial. The US Supreme Court decided that the statement could be introduced into evidence by the prosecution, despite the consular access violation. The Virginia case dealt with the question of whether a foreign national must comply with rules on the timing of presentation of legal claims when seeking a remedy for a consular notification violation, rules that bar a claim on grounds of procedural default. The US Supreme Court decided that a foreign national must comply with such rules, despite the rulings of the ICJ in LaGrand and Avena to the contrary. Koh 2007 and Quigley 2008 are critical of the Sanchez-Llamas ruling on both issues, in that the Court ignored broader principles of law that require a remedy for a breach of an international obligation. Levit 2007 argues that the Court’s denial of suppression of a statement as a remedy leaves open other avenues for redress. Kadish and Olson 2006 addresses a case in which a foreign national unsuccessfully sought continuance of a trial during which he learned for the first time that he had a right that had been violated. The authors argue that the ICJ in Sanchez-Llamas assumed arguendo that consular access is a right that adheres to the individual foreign national; hence, a violation may constitute a basis for redress.

  • Kadish, Mark J., and Charles C. Olson. “Sanchez-Llamas v. Oregon and Article 36 of the Vienna Convention on Consular Relations: The Supreme Court, the Right to Consul, and Remediation.” Michigan Journal of International Law 27 (2006): 1185–1237.

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    Criticizes, as inconsistent with Sanchez-Llamas, a prior US Court of Appeals decision upholding a denial of a continuance to a foreign national who learned of consular access only during the trial. Suggests that, although the US Supreme Court avoided the question of whether a foreign national has a right to consular access, it hinted that it would find such a right.

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  • Koh, Steven Arrigg. “‘Respectful Consideration’ after Sanchez-Llamas v. Oregon: Why the Supreme Court Owes More to the International Court of Justice.” Cornell Law Review 93.1 (2007): 243–273.

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    Argues, in line with the dissent of Justice Stephen Breyer, that the US Supreme Court gave insufficient consideration to the views of the ICJ about the consequences of noncompliance with consular access with respect both to the question of procedural default and to the question of a remedy.

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  • Levit, Janet Koven. “Sanchez-Llamas v. Oregon: The Glass Is Half Full.” Lewis and Clark Law Review 11.1 (2007): 29–46.

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    Contends that the US Supreme Court, though denying suppression as a remedy, left open the possibility that noncompliance with consular access obligations might be relevant to the voluntariness of a confession or to the question of whether the foreign national received effective assistance of counsel.

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  • Quigley, John. “Must Treaty Violations Be Remedied? A Critique of Sanchez-Llamas v. Oregon.” Georgia Journal of International and Comparative Law 36 (2008): 355–380.

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    Asserts that the US Supreme Court, in denying the remedy of suppression of an incriminating statement given by a foreign national who was not advised about consular access, ignored the doctrine of state responsibility, which requires a remedy for a treaty violation even if no remedy is specified in the treaty.

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Medellín v. Texas

After the ICJ, in Avena, ordered the United States to provide judicial review and reconsideration of the convictions of Mexican nationals who had not been advised about consular access, President George W. Bush indicated that this process should be carried out by the courts of the US states in which a particular Mexican national had been convicted. When the courts of Texas refused to do so, Texas was taken to the US Supreme Court, which ruled in Texas’s favor, on the grounds that the United Nations (UN) Charter provision that requires a state to comply with an adverse ruling of the ICJ was not self-executing, hence, not binding on Texas. Pulkowski 2006 addresses the reasons behind President Bush’s decision to seek implementation of Avena in the particular way that he did. Bradley 2006, written prior to the Medellín decision, argues that US courts are free to disregard rulings of the ICJ. Cruz 2010, written after the Medellín decision, agrees with its result, saying that President Bush inappropriately sought to require courts of the US states to ignore their own laws. Buys 2009 and Quigley 2009 both question the Court’s approach of asking whether the UN Charter provisions calling for implementation of ICJ judgments were self-executing. Gamble and Giuliano 2009 finds the reluctance of the US Supreme Court to implement ICJ judgments to reflect a broader American reluctance to comply with international obligations.

  • Bradley, Curtis A. “Enforcing the Avena Decision in U.S. Courts.” Harvard Journal of Law & Public Policy 30.1 (2006): 119–125.

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    Argues that US courts are not bound by decisions of the ICJ but that they should heed them if the reasoning is sound; suggests that US courts follow Avena’s proposition that foreign nationals enjoy individual rights to consular access but reject Avena’s proposition that procedural default rules should be overridden.

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  • Buys, Cindy Galway. “The United States Supreme Court Misses the Mark: Towards Better Implementation of the United States’ International Obligations.” Connecticut Journal of International Law 24 (2009): 39–76.

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    Maintains that the US Supreme Court, instead of asking whether the UN Charter provisions on the ICJ were self-executing, should have addressed the issue of the president’s power to implement Avena on the basis that the president was acting on the basis of the VCCR.

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  • Cruz, Ted. “Defending U.S. Sovereignty, Separation of Powers, and Federalism in Medellíin v. Texas.” Harvard Journal of Law and Public Policy 33.1 (2010): 25–35.

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    Written by the Texas solicitor general, who argued Medellín in the US Supreme Court; criticizes President George W. Bush’s directive to state courts to review convictions gained following upon noncompliance with consular access obligations as involving a claim that the president can override state laws on the basis of ambiguous international obligations.

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  • Gamble, John King, and Christine M. Giuliano. “US Supreme Court, Medellín v. Texas: More Than an Assiduous Building Inspector?” Leiden Journal of International Law 22.1 (2009): 151–169.

    DOI: 10.1017/S0922156508005670Save Citation »Export Citation »E-mail Citation »

    Suggests that the US Supreme Court’s reluctance to accept law as interpreted by the ICJ in Avena is reflective of American isolationism in regard to the international community.

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  • Pulkowski, Dirk. “Testing Compliance Theories: Towards US Obedience of International Law in the Avena Case.” Leiden Journal of International Law 19.2 (2006): 511–554.

    DOI: 10.1017/S0922156506003426Save Citation »Export Citation »E-mail Citation »

    Interesting, informed speculation as to why President George W. Bush decided to seek domestic implementation of Avena. Suggests that this decision, along with the US decision to withdraw from the Optional Protocol to the VCCR, reflected a middle-of-the-road approach to compliance with international law.

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  • Quigley, John. “President Bush’s Directive on Foreigners under Arrest: A Critique of Medellín v. Texas.” Emory International Law Review 22 (2009): 423–454.

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    Argues that the Court inappropriately focused on the issue of whether UN Charter provision on binding effect of ICJ judgments is self-executing, because self-execution is an issue only when treaties are invoked by private parties; further, the Supreme Court, once undertaking this analysis, inappropriately concluded that the UN Charter provision was not self-executing.

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Guides for Practitioners

As litigation blossomed in the United States on consular access issues, the matter came to be included in continuing education materials for practicing attorneys. Law enforcement agencies were criticized for lax implementation of the notification requirement, leading government agencies to prepare continuing education materials for law enforcement personnel. Consular officials, too, needed to know how to involve themselves usefully when cases of their nationals reached the courts. James and Cecil 2005 is a primer for consular officials on how consular access violations claims are handled in US courts. Rudd 2007 provides a primer for law enforcement personnel on their basic obligations when they arrest a foreign national. Buys 2011 and Carter, et al. 2008 do the same for criminal defense attorneys. More elaborate expositions of what criminal defense attorneys need to know are James 2007, Quigley 2009, and Warren 2010. Kuykendall, et al. 2008 explains to criminal defense attorneys how to interact with consular representatives so as to benefit their foreign national client.

  • Buys, Cindy Galway. “Ensuring Consular Notification Rights for Foreign Defendants.” Criminal Law Reporter 88.13 (2011): 377–384.

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    Basics of consular notification for criminal defense attorneys who represent foreign nationals on a criminal matter: obligation of consular access, ways to raise violations if consular access is not properly afforded.

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  • Carter, Linda E., Ellen S. Kreitzberg, and Scott W. Howe. 2d ed. Understanding Capital Punishment Law. Understanding Series. Newark, NJ: LexisNexis, 2008.

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    A five-page section titled “Vienna Convention on Consular Relations” provides a useful summary of international litigation on consular access aimed at practitioners representing a foreign national charged with a capital offense.

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  • James, Anne, ed. Bridging the Gap: Effective Representation of Foreign Nationals in U.S. Criminal Cases: An Introductory Guide for Attorneys. 3d ed. Newark, NJ: International Justice Project, 2007.

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    Information for defense attorneys representing a foreign national: how to communicate effectively with a foreign national client, how to interact effectively with the foreign national’s consulate, how to raise claims related to a failure of notification about consular access.

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  • James, Anne, and Joanne Cecil. Equal Protection: Consular Assistance and Criminal Justice Procedures in the USA: An Introductory Guide for Consulates. 2d ed. Newark, NJ: International Justice Project, 2005.

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    Information for consuls on how their protection work for detained conationals fits with the various stages of a criminal case in the United States; suggestions on how to interact with the conational’s defense attorney effectively.

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  • Kuykendall, Gregory J., Alicia Amezcua-Rodriguez, and Mark Warren. Mitigation Abroad: Preparing a Successful Case for Life for the Foreign National Client.” Hofstra Law Review 36 (2008): 989–1018.

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    Based on the work of the Mexican Capital Legal Assistance Program, asserts the importance for defense lawyers of involving consular officers in mitigation proceedings following upon a conviction of a capital offense; contends that consuls can obtain critical documentary records and other information about the foreign national relevant to mitigation.

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  • Quigley, John. “‘If You Are Not a United States Citizen . . .’: International Requirements in the Arrest of Foreigners.” Ohio State Journal of Criminal Law 6 (2009): 661–679.

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    Aimed at legal practitioners in the United States; explains the consular notification requirement under the VCCR and how challenges based on noncompliance have been handled by US courts.

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  • Rudd, Jonathan L. “Consular Notification and Access: The ‘International Golden Rule.’” FBI Law Enforcement Bulletin 76.1 (2007): 22–32.

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    Authored by a legal instructor at the Academy of the Federal Bureau of Investigation (FBI), explains to law enforcement personnel what they must do to comply with consular access requirements when they arrest a foreign national.

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  • Warren, Mark. “Consular Resources and Litigation Strategies.” In Cultural Issues in Criminal Defense. 3d ed. Edited by Linda Friedman Ramirez, 5–34. Huntington, NY: Juris, 2010.

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    Instructs lawyers representing a foreign national in the United States on a criminal charge about consular access issues: how consular assistance may benefit the client, how to interact with a consulate, how to craft a motion to suppress an incriminating statement if the client was not notified about consular access.

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LAST MODIFIED: 03/23/2012

DOI: 10.1093/OBO/9780199796953-0014

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