Article 36 of the Vienna Convention on Consular Relations: Private Enforcement in American Courts after LaGrand

Abstract

On June 27, 2001, the International Court of Justice (ICJ) held in the case of Germany v. United States of America (LaGrand) that Article 36 of the Vienna Convention on Consular Relations ("VCCR") affords an individually enforceable right to consular access upon arrest or detention in a foreign country.1 In the United States, death penalty opponents applauded the ICJ's finding for its promise of greater due process protection, while states' rights advocates criticized the decision as an unlawful exercise of criminal appellate jurisdiction. LaGrand, in theory, resolves many questions that have plagued American courts: whether Article 36 rights are vested in an individual or a signatory state; whether the right may be privately enforced; whether domestic procedural rules may bar Article 36 claims in certain circumstances; and whether the ICJ's provisional measures are binding upon member states. The LaGrand opinion, however, leaves unclear as many issues as it clarifies. Procedurally, LaGrand has enormous implications for American criminal courts if taken at its word. Yet it remains to be seen how, and if, the American courts will incorporate the ICJ's decision in LaGrand into their jurisprudence. The United States Supreme Court has yet to address the LaGrand issues in a comprehensive manner.2 As a result, courts vary widely in