Introduction
The Vienna Convention
on Consular Relations (VCCR) is a multilateral treaty that regulates
the rights, privileges and duties of consulates and consular staff worldwide.
Ratified by some 160 countries, including the United States in 1969 without reservation,
the VCCR is the cornerstone of international consular relations.
Article
36 of the VCCR recognizes and enshrines
the right of consuls to communicate with and assist their detained nationals.
These provisions are regarded as the universal norm for consular relations.
Further, they also apply to those nations that have not yet ratified the
treaty as part of customary international law.
The United States has signed bilateral mandatory notification treaties with over fifty countries. These treaties regulate the rights of governments to provide consular services to their citizens. Some of these agreements require that consular officials be notified of the arrest and/or detention of one of their nationals regardless of whether the national has made a request for assistance. Please click
here for more information.
On 27th June 2001, the International
Court of Justice (ICJ) issued a binding judgment in the LaGrand case (Germany v USA) in which the Court ruled on the interpretation and application of rights conferred under Article 36 of the Vienna Convention on Consular Relations (VCCR).
On January 9, 2003, the Government of Mexico initiated proceedings against the United States in the International
Court of Justice (“ICJ”), alleging violations of the VCCR in the cases of Medellin and 53 other Mexican nationals facing the death penalty in the United States (Avena
and other Mexican Nationals (Mexico v. United States of America)). On March 31, 2004, the ICJ held, by a vote of fourteen to one, that the United States had breached Article 36(1) in the cases of 51 of the Mexican nationals. For background Information, click
here.
Following the Avena decision, Jose Medellin, a Mexican national appealed alleging that his rights under the VCCR had been violated. The Court of Appeals denied his application. On August 18, 2004 Medellin applied for a writ of certiorari to the United States’ Supreme Court. The State’s response was filed on October 20, 2004. Of note, the European Union and Members of the International Community also filed an amicus curiae brief. On December 10, 2004 the United States' Supreme Court granted cert. Oral arguments were heard on March 28, 2005. On May 23, 2005 the U.S. Supreme Court dismissed Medellin's appeal as improvidently granted. Click
here for the decision.
Following this, on July 29, 2005 attorneys for Jose Medellin filed at the Texas Court of Criminal Appeals. The EU and Members of the International Community filed an amicus curiae brief in support of Medellin.
Consular assistance can take many forms but each intervention serves three basic functions. The first is humanitarian: consuls provide detainees with access to the outside world and ensure that they are provided with basic necessities while incarcerated. The second is protective: consular visits help ensure that foreign nationals are not mistreated in custody and finally, legal assistance: Consuls acquaint nationals with the basic procedures under the local system.
In the context of capital punishment, consular assistance should not be underestimated indeed, infringement of the aforementioned rights may have a direct impact upon each and every stage of the criminal justice procedure. Violations of Article 36 or the preferable alternative of effective consular assistance and intervention may mean the difference, literally, between life and death.
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