Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of Justice (ICJ) Interpretation of Consular Notification Requirements

CRS Report for Congress
Vienna Convention on Consular Relations:
Overview of U.S. Implementation and
International Court of Justice (ICJ)
Interpretation of Consular
Notification Requirements
May 17, 2004
Michael John Garcia
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

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

Contents
Background on the International Court of Justice and the Vienna
Convention Optional Protocol...............................1
Background on the Vienna Convention Article 36....................2
U.S. Implementation and Judicial Interpretation of Vienna Convention
Article 36................................................4
U.S. Implementation of Article 36 Requirements at the Federal Level.4
U.S. Implementation of Article 36 Requirements at the State Level...5
Judicial Remedies Available for Article 36 Violations at the Federal
or State Level........................................5
Interpretation of Article 36 by the International Court of Justice........11
Paraguay v. United States of America.........................11
Mexico v. United States of America (Avena and Other
Mexican Nationals)...................................14
Potential U.S. Responses to ICJ Decisions Concerning Implementation of
Convention Article 36.....................................16
Possible Considerations in Deciding whether to Comply with the
ICJ Decisions in Avena and LaGrand.....................16
Judicial Compliance with ICJ Decisions Interpreting Article 36....17
Better State and Local Law Enforcement Article 36
Notification Procedures................................19

Vienna Convention on Consular Relations:
Overview of U.S. Implementation and
International Court of Justice (ICJ)
Interpretation of Consular Notification
Requirements
In accordance with the Vienna Convention on Consular Relations (Vienna
Convention),¹ a multilateral international agreement designed to codify customary
international practice concerning consular relations, the United States has pledged to
inform detained foreign nationals of their right to have their respective consular
offices notified of their detention. In practice, this obligation has not always been
fulfilled, and questions have arisen as to what, if any, legal remedy is owed to foreign
nationals who are not informed of their right to notify their consulate. U.S. courts
have split on the issue of whether the Convention creates individual rights for
affected foreign nationals, although in most cases U.S. courts have denied foreign
nationals relief from Convention violations on either procedural or substantive
grounds. On March 31, 2004, the International Court of Justice (ICJ) issued a ruling
in the case of Avena and Other Mexican Nationals (Mexico v. United States of
America)² that clarified State notification obligations under the Vienna Convention,
and additional measures may be required if the United States intends to comply with
the ICJ’s ruling.
Background on the International Court of Justice and the
Vienna Convention Optional Protocol
The International Court of Justice is the principal judicial organ of the United
Nations.³ Under the U.N. Charter, a Member State is obligated to comply with any⁴
ICJ decision to which it is a party. The United States is also a party to the Vienna
Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes

¹ Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77 [hereinafter
“Vienna Convention”].
² Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment
(Mar. 31, 2004), available at
[htt p : / / 212.153.43.18/icj www/idocke t/imus/imusj udgme nt/imus_imusj udgme nt_2004033

1.pdf] [hereinafter “Avena”].

³ U.N. Charter at Art. 92.
⁴ Id. at Art. 94(1).

(Optional Protocol), under which Convention parties agree to accept the jurisdiction
of the ICJ to resolve disputes between them concerning Convention implementation.⁵
In 1946, the United States declared that it recognized the compulsory
jurisdiction of the ICJ over matters relating to, inter alia, (1) the interpretation of a
treaty; (2) the existence of any fact which, if established, would constitute a breach
of an international obligation; and (3) the nature or extent of the reparation to be
made for the breach of an international obligation.⁶ In its declaration, however, the
United States made clear that the declaration accepting compulsory jurisdiction by
the ICJ did not apply to “disputes with regard to matters which are essentially within
the domestic jurisdiction of the United States of America ....”⁷ In 1985, the United
States informed the ICJ that it no longer recognized the ICJ as having compulsory
jurisdiction of matters involving the United States.⁸ Nevertheless, the United States
did not rescind certain international agreements that it had entered, including the
Optional Protocol, which recognized ICJ jurisdiction to resolve particular
international legal disputes.
Whether ICJ decisions concerning the Vienna Convention are legally binding
upon U.S. courts pursuant to the Optional Protocol is a matter of debate. A majority
of Supreme Court Justices has implicitly suggested that ICJ opinions are only
advisory for purposes of domestic law,⁹ while a vocal minority of Justices has argued
that ICJ decisions regarding the Vienna Convention are binding on U.S. courts
pursuant to the Optional Protocol.¹⁰
Background on the Vienna Convention Article 36
Traditionally, States (i.e., countries) have provided consular services to assist
their nationals in other countries. The Vienna Convention on Consular Relations was
completed in 1963 as a means of codifying consular practices originally governed by
customary international law and bilateral agreements between States. Most
countries, including the United States, are parties to the Vienna Convention, and the
United States has “relied increasingly on it as the principal basis for the conduct of
[its] consular activities.”¹¹ The Vienna Convention enumerates basic legal rights and
duties of signatory States including, inter alia, (1) the establishment and conduct of
consular relations and (2) the privileges and immunities of consular officers and
offices in the “receiving State” (the country where the foreign consular office has

⁵ For example, the United States brought a case against Iran during the Hostage Crisis
concerning Iran’s failure to respect the inviolability of consular premises and officers. See
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgement (May 24, 1980).
⁶ United States Declaration of Aug. 14, 1946, 61 Stat. 1218,1 U.N.T.S. 9.
⁷ Id.
⁸ United States Department of State, U.S. Terminates Acceptance of ICJ Compulsory
Jurisdiction, 86D^EP’^TS^T.B^ULL.67 (Jan. 1986).
⁹ See infra at pp. 8-10, 18-20.
¹⁰ See infra at pp. 11, 17.
¹¹ United States Department of State, Bureau of Consular Affairs, Consular Notification and
Access, Part 5: Legal Material, available at [http://travel.state.gov/notification5.html].

been established). If the receiving State infringes upon the legal rights afforded to
the “sending State” (the State that has established a consular office in the receiving
State) under the Vienna Convention, the sending State is permitted to reciprocate this
treatment against the foreign consulates that the receiving State has established in the
sending State.¹²
Article 36 of the Vienna Convention provides that when a foreign national is
“arrested or committed to prison or to custody pending trial or is detained in any
other manner,” appropriate authorities within the receiving State must inform him
“without delay” of his right to have his native country’s local consular office notified
of his detention.¹³ With the detained national’s permission, a consular officer from
his country may then “converse and correspond with him and ... arrange for his legal
representation.”¹⁴ Article 36(2) provides that these rights “shall be exercised in
conformity with the laws and regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded under this Article are intended.”¹⁵
The consular notification provisions of Article 36 can potentially have a number
of benefits for a detained foreign national. If a sending State is made aware of the
arrest or detention of one of its nationals in the receiving State, it might take
diplomatic or other steps to ensure that its national is treated fairly by the receiving
State. A consular official might also have more expertise in the laws and practices
of the receiving State than the detained national, and might also be able to arrange
for the arrested national to receive better legal representation than he might otherwise
receive in the receiving State. Consular assistance might also be useful to a detained
foreign national in building a defense to criminal charges raised against him in the
receiving State. For example, a consular official might be able to assist the detained
national in obtaining evidence or witnesses from the sending State that will either
bolster the national’s defense against the charges made against him or, in cases in
which the national is subsequently convicted, assist the national in arguing for
leniency in sentencing.
Because different States provide different degrees of protections to foreign
nationals, the advantages accrued by a foreign national via consular access may vary
from State to State. For example, whereas the United States provides detained
foreign nationals in criminal cases with the same degree of constitutional protections
as U.S. citizens, including the right to a court-appointed lawyer and various other due
process protections, certain other parties to the Convention may not guarantee foreign
nationals such protections. Therefore, a U.S. citizen detained in a country without
such protections might suffer more serious consequences from being deprived of
information relating to his consular officials than a foreigner detained in the United
States.

¹² Vienna Convention at Art. 72(2).
¹³ Id. at Art. 36.
¹⁴ Id.
¹⁵ Id.

U.S. Implementation and Judicial Interpretation of Vienna
Convention Article 36
The United States ratified the Vienna Convention in 1969, six years after
signing the agreement. The legislative history concerning ratification of the
Convention suggests that the United States believed that the Convention would have
minimal impact upon U.S. domestic law and practice. Prior to the Senate giving its
advice and consent to ratification of the Vienna Convention, the State Department
legal advisor submitted testimony to the Senate Committee on Foreign Relations
concerning the Department’s understanding of the Convention’s purpose and effect.
According to the State Department, the Vienna Convention was entirely self-
executing and therefore did “not require any implementing or complementing
legislation” to come into force.¹⁶ Indeed, the State Department concluded that the
Convention did “not have the effect of overcoming Federal or State laws beyond the
scope long authorized in existing consular conventions.”¹⁷ The Senate Committee
subsequently transmitted the Vienna Convention to the full Senate with a
recommendation of consent to ratification, along with an accompanying Report
listing factors that had resulted in the Committee’s approval of the Convention. The
first factor described in the Report was the Committee’s belief that the Convention¹⁸
“does not change or affect present U.S. laws or practice.” The following sections
describe U.S. implementation of Vienna Convention Article 36, as well as judicial
interpretation of Convention requirements as they relate to claims for relief raised by
foreign nationals who were not notified of their right to contact their country’s
consular officials following their arrest.
U.S. Implementation of Article 36 Requirements at the Federal
Level. The view of the State Department and Senate Committee on Foreign
Relations that ratification of the Vienna Convention required no implementing
legislation was perhaps influenced by the adoption of certain federal regulations two
years earlier. Under regulations first adopted in 1967 by the Department of Justice
(DOJ), “in every case in which a foreign national is arrested the arresting [federal]
officer shall inform the foreign national that his consul will be advised of his arrest
unless he does not wish such notification to be given.”¹⁹ The arresting federal officer
is further required to “inform the nearest U.S. Attorney of the arrest and of the
arrested person’s wishes regarding consular notification.”²⁰ Immigration officials are
also required to notify all detained aliens of their right to communicate with their
local consulate.²¹ Although these regulations were adopted two years prior to U.S.
ratification of the Vienna Convention in order to comply with various bilateral

¹⁶ S.E^XEC.R^EP.N^O. 91-9, App. at 5 (1969).
¹⁷ Id.
¹⁸ S.E^XEC.R^EP.N^O. 91-9 at 2 (1969).
¹⁹ 28 C.F.R. § 50.5(a)(1).
²⁰ Id. at § 50.5(a)(2).
²¹ 8 C.F.R. § 242.2(g).

consular treaties previously entered into by the United States, they nevertheless fulfill
the notification requirements of Vienna Convention Article 36.²²
U.S. Implementation of Article 36 Requirements at the State Level.
U.S. obligations under Article 36 are not limited to actions taken by federal officials;
the Vienna Convention makes no distinction between the notification duties owed by
federal, state, and local officials within a receiving State. But while federal law
enforcement officials are required by regulation to act in a manner compliant with the
Vienna Convention, no federal law or regulation has been adopted to compel state
or local law enforcement officials to notify foreign nationals of their right under²³
Convention Article 36, possibly because of federalism concerns. Instead, the State
Department has attempted to ensure state and local compliance with Article 36 by
regularly distributing manuals, pocket cards, and training resources to state and local
officials concerning the consular notification obligations owed under the Vienna²⁴
Convention. These materials characterize Vienna Convention obligations as
“binding on federal, state, and local government officials to the extent that they
pertain to matters within such officials’ competence,” and stress that “in all cases,
the [arrested or detained] foreign national must be told of the right of consular²⁵
notification and access.”
In a written brief to the ICJ during the Avena case, the United States noted that
“some states have incorporated consular notification procedures into their booking²⁶
procedures, as the Department of State has recommended,” while others have not.
Other states have incorporated consular information into their statements of Miranda²⁷
rights, but most have not taken such action.
Judicial Remedies Available for Article 36 Violations at the Federal
or State Level. Despite the existence of federal regulations concerning consular
notification and State Department efforts to ensure state and local authorities’
compliance with Vienna Convention Article 36, foreign nationals are not always

²² Indeed, some courts have stated that the Vienna Convention was the basis behind these
regulations, despite the Convention being ratified two years after their implementation. See,^th
e.g., United States v. Calderon-Medina, 591 F.2d 529, 531 n.6 (9 Cir. 1979).
²³ The constitutional implications of requiring state officials to execute U.S. treaty
obligations is discussed infra at pp. 20-23.
²⁴ These materials can be viewed and downloaded at
[http://travel.state.gov/CNAdownloads.html ].
²⁵ U.S.D^EP^T.^OFS^TATE,C^ONSULARN^O^T^I^F^I^C^ATI^{ON AND}A^CCESS:I^NSTRUCTI^{ONS FOR}
F^EDERAL,S^TATE,^ANDL^OC^A^LL^AWE^NFORCEM^E^{NT AND}O^THERO^FFI^CI^ALSR^EGARDI^NG
F^OREI^GNN^ATI^{ONALS I}^N^THE^UNI^TEDS^{TATES AND}^THER^I^{GHTS OF}C^ONSULARO^FFI^{CERS TO}
A^SSI^STT^HEM 13 (1998), available at [http://travel.state.gov/CNAdownloads.html] (italics
in original).
²⁶ C^OUNTER-^ME^MO^R^I^A^L^O^F^T^H^EU^NI^TEDS^{TATES OF}A^M^E^RI^{CA I}^N^TH^EC^{ASE OF}A^VEN^{A AN}^D
O^T^H^ERM^E^X^I^CA^NN^AT^ION^A^L^S(M^EXIC^OV.U^NI^TE^DS^TA^TE^S^O^FA^MERIC^A), S^TATEM^{ENT OF}
F^ACTS,C^HAP^TERIIat35 (Nov. 3, 2003), available at
[ h t t p : / / 212.153.43.18/ i c j www/ i docket/imus/imuspl eadi n gs / i mus _i pl eadi ngs _20031103_c-
mem_toc.pdf]
²⁷ Id.

provided with requisite consular notification information following their arrest or
detention. While the failure to notify an arrested or detained foreign national of his
right to consular notification would appear to constitute a prima facie violation of
Vienna Convention Article 36 if the national belonged to a signatory State, it is
unclear what, if any, judicial remedy is available to the national under U.S. law.
Indeed, the Vienna Convention does not expressly provide any specific remedy to an
arrested foreign national if he is not informed of his right to have his local consular
office notified, and the State Department has historically taken the view that “The
[only] remedies for failures of consular notification under the [Vienna Convention]
are diplomatic, political, or exist between states under international law.”²⁸
Various federal and state courts have opined on the issue of whether the
Convention Article 36 creates a judicially-enforceable right to relief for detained
foreign nationals who are not provided with requisite consular information. A
number of federal courts has endorsed the view that violations of the Vienna
Convention cannot be remedied through judicial action, ²⁹ while a similar number has³⁰
concluded otherwise. For its part, the Supreme Court has only gone so far as to

²⁸ United States v. Li, 206 F.3d 56, 61 (1st Cir. 2000) (quoting State Department answer to
question posed by the First Circuit); see also United States v. Page, 232 F.3d 536 (6th Cir.

2000).

²⁹ See, e.g., United States v. Banaban, 85 Fed. Appx. 395 (5th Cir. 2004) (holding that
Vienna Convention does not create individually enforceable rights); Mendez v. Roe, 88 Fed.
Appx. 165 (9th Cir. 2004) (denying federal habeas relief for violation of Vienna Convention
Article 36, as no clearly established federal law directed that Article 36 instituted a
judicially enforceable right); United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir. 2001),
cert. denied, 121 S. Ct. 2620 (holding that the Vienna Convention does not provide detained
foreign nationals with a private right of action, and giving strong consideration to State
Department opinion that Convention does not confer enforceable individual rights); United
States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001), cert. denied, 535 U.S. 977
(2002)(holding that foreign nationals have no right under the Vienna Convention to consular
access, and noting that preamble to the Convention disclaims creation of individual rights);
United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.1999) (finding that “the Vienna
Convention itself prescribes no judicial remedy or other recourse for its violation.”); Gordon
v. State, 863 So. 2d 1215 (Fla. 2003) (holding that petitioner for state habeas relief lacked
standing to assert claim under Article 36 because the treaty created rights between States,
not their individuals); Rodriguez v. State, 837 So. 2d 478 (Fla. Dist. Ct. App. 5th Dist. 2002)
(Mexican national lacked standing to claim Vienna Convention violation in absence of
protest from Mexico).
³⁰ See, e.g., United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000), cert.
denied, 531 U.S. 991 (2000) (holding that Vienna Convention establishes individual rights
enforceable by courts); United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999)
(holding that detained foreign national has standing to assert right under Vienna Convention
to have consulate notified); Standt v. City of New York, 153 F. Supp. 2d 417 (S.D.N.Y.
2001) (holding that Vienna Convention Article 36 provides detained individuals with a
private right of action enforceable through 42 U.S.C. § 1983); United States v.
Hongla-Yamche, 55 F. Supp. 2d 74 (D. Mass. 1999) (holding that the Vienna Convention
confers an individual right to consular notification and a detained individual has standing
to challenge an alleged violation); United States v. Torres Del-Muro, 58 F. Supp. 2d 931
(C.D. Ill. 1999) (recognizing a private right of action for violations of Vienna Convention
Article 36); United States v. Briscoe, 69 F. Supp. 2d 738 (D.V.I. 1999).

posit that the Convention “arguably” confers a private right of action for an arrested
or detained foreign national who was subject to an Article 36 violation.³¹
Regardless of this split, the courts have recognized that a violation of any right
provided to a foreign national by Vienna Convention Article 36 would warrant
judicial relief only in limited circumstances. The courts have routinely found that
Article 36 violations do not require the suppression of evidence or dismissal of an
indictment against an arrested foreign national; drastic remedies that are generally
available to an arrested individual only when a fundamental constitutional right is
implicated.³² The failure to notify an individual of his consular rights would not deny
him the right to a court-appointed attorney, a speedy trial, or any of the other due
process protections generally afforded to U.S. citizens, and the courts have therefor
concluded the Article 36 violations do not implicate an affected foreign national’s
constitutional rights.³³ Accordingly, even in cases where a foreign national is
recognized as having an enforceable right under the Vienna Convention, the courts
have generally concluded that such a right entitles the national to relief only in
circumstances where an Article 36 violation prejudiced him in some capacity, either
by altering the outcome of his case or changing the actions that the defendant took.³⁴

³¹ Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam).
³² See, e.g., Jimenez-Nava, 243 F.3d at 192; United States v. De La Pava, 268 F.3d 157 (2nd
Cir. 2003) (holding that government failure to comply with Article 36 did not provide a
basis to dismiss an indictment); Li, 206 F.3d at 60 (“irrespective of whether or not the
[Vienna Convention] create[s] individual rights to consular notification, the appropriate
remedies do not include suppression of evidence or dismissal of the indictment”); Page, 232
F.3d at 540-41 (6th Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 620-21
(7th Cir. 2000); Lombera- Camorlinga, 206 F.3d at 882 (reversing decision by Court of
Appeals panel and holding that violation of Vienna Convention’s consular notification
requirement does not require suppression of subsequently obtained evidence in a criminal
proceeding against arrested foreign national); United States v. Chanthadara, 230 F.3d 1237
(10th Cir. 2000); United States v. Cordoba-Mosquera, 212 F.3d 1194 (11th Cir. 2000).
³³ See, e.g.,United States v. Minjares-Alvarez, 264 F.3d 980, 987 (10th Cir. 2001) (“There
is no reason to think the drafters of the Vienna Convention had [the] uniquely American
[Fifth and Sixth Amendment] rights in mind ... given the fact that even the United States
Supreme Court did not require the Fifth and Sixth Amendment post-arrest warnings until
it decided Miranda in 1966, three years after the treaty was drafted”), quoting
Lombera-Camorlinga, 206 F.3d at 886; Li, 206 F.3d at 61 (“Article 36 of the Vienna
Convention...[does] not create — explicitly or otherwise — fundamental rights on par with
the right to be free from unreasonable searches, the privilege against self-incrimination, or
the right to counsel”); Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997) (holding that the
Supremacy Clause does not convert Vienna Convention violations into violations of
constitutional rights); United States v. Bin Laden, 132 F. Supp. 2d 168 (S.D.N.Y. 2001).
³⁴ See, e.g., Hernandez v. United States, 280 F. Supp. 2d 118 (S.D.N.Y. 2003) (rejecting
Dominican defendant’s appeal to relief, absent evidence that consultation with Dominican
Republic consulate would have altered the outcome of his case); Bieregu v. Ashcrof, 259
F. Supp. 2d 342 (D.N.J. 2003) (rejecting prisoner’s claims under Alien Tort Claims Act and
Federal Tort Claims Act for violations of the Vienna Convention, as defendant had failed
to show causation and damages related to trial and conviction); United States v. Ore-Irawa,
78 F. Supp. 2d 610 (E.D. Mich. 1999) (holding that for actual prejudice to be demonstrated
to justify a claim of relief for Article 36 violation, a foreign national must demonstrate that
(continued...)

In many instances, lawyers representing foreign nationals do not raise the issue
of Article 36 violations at trial or pre-trial hearings, possibly because neither they nor
their clients are aware of the Vienna Convention. As a result, potential claims for
relief from Article 36 violations may be precluded from being raised under state or
federal procedural default rules. If a petitioner fails to raise a claim in state court
concerning an Article 36 violation prior to being convicted and sentenced, state
courts acting under state procedural default rules will likely deny him an opportunity
to reopen his case for purpose of raising the Article 36 claim, regardless of whether
or not his failure to be informed of his right to consular notification prejudiced him
in some capacity. Although Congress has provided the lower federal courts with
authority to review state court criminal convictions on a writ of habeas corpus, the
scope of this review is limited by statute. Pursuant to the Antiterrorism and Effective
Death Penalty Act (AEDPA) enacted by Congress in 1996, a foreign national
petitioning for habeas relief in federal court must have first raised the allegation of
a treaty, statutory, or constitutional violation in state court if he is to be provided an
evidentiary hearing on the basis of that violation for purposes of federal habeas
review.³⁵ Accordingly, the failure of a foreign national to timely raise an Article 36
claim for relief may preclude him from receiving judicial relief, regardless of the
merits of his claim.
The Supreme Court discussed U.S. interpretation of its obligations under the
Vienna Convention, as well as the applicability of the procedural default rule to
claims of relief from Article 36 violations, in the case of Breard v. Greene.³⁶ The
Breard case concerned Paraguayan national Angel Francisco Breard who, though
convicted on rape and murder charges and sentenced to death by a Virginia state
court,³⁷ had not been informed of his right under Article 36 to have the Paraguayan
consulate contacted at any point prior to being convicted and sentenced to death.
Breard’s motion for habeas relief in federal district court was denied on procedural
default grounds, as he had failed to raise the issue in Virginia state court proceedings.
In conjunction with Breard’s federal appeal, the Republic of Paraguay also brought
suit in federal district court against certain Virginia officials for violating Paraguay’s
rights as a signatory party to the Vienna Convention. In addition, just prior to
Breard’s scheduled execution, Paraguay instituted proceedings in the ICJ alleging
that the United States had violated both Paraguay and Breard’s rights under the
Vienna Convention by failing to provide Breard with requisite consular information

(...continued)
there was a likelihood that the contact with the consul would have resulted in meaningful
assistance); United States v. Miranda, 65 F. Supp. 2d 1002 (D. Minn. 1999) (holding that
criminal defendant must establish prejudice from violation of rights under Vienna
Convention); United States v. Tapia-Mendoza, 41 F. Supp. 2d 1250 (D. Utah 1999) (foreign
national must prove prejudice through indication that he would have availed himself of right
to consult consulate and contact with consul would have assisted him).
³⁵ See 28 U.S.C. §§ 2254(a), (e)(2). A possible exception enabling otherwise procedurally
defaulted constitutional claims to be raised in federal habeas courts occurs when the claim
relies upon “a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.” Id. at § 2254(e)(2)(A)(i).
³⁶ 523 U.S. at 371.
³⁷ The Supreme Court characterized the evidence indicating Breard’s guilt as
“overwhelming.” Id. at 373.

prior to his conviction and sentence. Prior to the Supreme Court issuing an opinion
on Breard and Paraguay’s applications to stay Breard’s execution, the ICJ issued a
Provisional Measures Order (PMO) instructing the United States to “take all
measures at its disposal to ensure that ... Breard is not executed pending a final
decision in these [ICJ] proceedings.”³⁸
The issuance of a PMO by the ICJ did not prevent the Supreme Court from
issuing a per curiam opinion denying Breard and Paraguay’s claims for relief, and
Breard was subsequently executed. While noting that “respectful consideration”
should be given to the ICJ’s interpretation of the Vienna Convention,³⁹ the Supreme
Court apparently did not view the ICJ as having definitive authority to either resolve
questions of Convention interpretation or issue legally-binding orders upon U.S.⁴⁰
courts.
The Supreme Court held that it was clear that Breard procedurally defaulted on
his Article 36 claim by failing to raise the claim in state court, and he was therefore
precluded from relief by federal courts on those grounds. Both Paraguay and Breard
had argued that even if a foreign national failed to raise an Article 36 claim in state
court on a timely basis, that claim could nevertheless be heard in federal court
because as a treaty ratified by the United States, the Vienna Convention held status
as the “supreme law of the land” and therefore trumped the procedural default
doctrine.⁴¹ The Court, however, ruled this interpretation to be “plainly incorrect” for⁴²
two reasons.
First, the Court concluded that the Vienna Convention itself did not require any
modification to U.S. procedural default rules. The Court found that “it has been
recognized in international law that, absent a clear and express statement to the
contrary, the procedural rules of the forum State govern the implementation of the⁴³
treaty in that State.” Examining the language of the Convention, the Court
concluded that Article 36 did not alter or create an exception to traditional U.S.
procedural default rules in cases where a foreign national was not provided with
requisite consular information.⁴⁴

³⁸ International Court of Justice, Provisional Measures Order, Paraguay v. United States
(Apr. 9, 1998) available at
[http://212.153.43.18/icj www/idoc ket/ipaus/ipausorder /ipaus_iorder_090498.HT M ].
³⁹ Breard, 523 U.S. at 375.
⁴⁰ Indeed, the Court declined to act to enforce an ICJ PMO in a subsequent case concerning
U.S. application of the Vienna Convention. See Fed. Republic of Germany v. United States,
526 U.S. 111 (1999). In opposing the stay of the execution of a German foreign nation on
account of an ICJ PMO, the U.S. Solicitor General argued that “an order of the International
Court of Justice indicating provisional measures is not binding and does not furnish a basis
for judicial relief.” Id. at 113.
⁴¹ Breard, 523 U.S. at 375.
⁴² Id.
⁴³ Id.
⁴⁴ Id. at 375-76.

Secondly, the Court rejected Breard and Paraguay’s claim that the Vienna
Convention superceded federal procedural default rules on account of the “last-in-
time doctrine.” The last-in-time doctrine recognizes that “An act of Congress ... is on
a full parity with a treaty, and that when a statute is subsequent in time [and] is
inconsistent with a treaty, the statute to the extent of the conflict renders the treaty
void.”⁴⁵ Claims for relief under the Vienna Convention are “subject to this
subsequently enacted rule, just as any claim ... would be.”⁴⁶ Accordingly, the Court
concluded that the enactment of AEDPA limited any rights afforded to a foreign
national under Convention Article 36, so as to prevent a petitioner an evidentiary
hearing in front of a federal habeas court on account of an Article 36 violation if he
“has failed to develop the factual basis of [the] claim in State court proceedings.⁴⁷
Further, the Breard Court noted that even if an Article 36 claim was not
precluded by AEDPA, it would be “extremely doubtful” that the remedy for an
Article 36 violation would ever be the overturning of a final judgment of conviction
absent a showing that the violation had an effect on the trial. The Court seemed to
be skeptical that consular notification would make a difference in a trial’s outcome,
positing that U.S. attorneys are “likely far better to explain the United States legal
system ... than any consular official ....”⁴⁸
The Court also rejected Paraguay’s claim that the Convention raised a private
right of action on behalf of a foreign nation to set aside its national’s criminal
conviction and sentence for a violation of Article 36. First, the Court noted that
neither the Convention’s text nor history clearly provided for such a right of action.
Secondly, the Court concluded that the Eleventh Amendment of the U.S.
Constitution provides a more fundamental barrier to such relief, as it has been
interpreted by the Courts to stand for the proposition that “the States [of the United
States], in the absence of consent, are immune from suits brought against them ... by
a foreign State.”⁴⁹ Though a possible exception to the standard exists when judicial
relief is necessary to prevent a continuing violation of a federal right by a state,⁵⁰ the
Breard Court concluded that no such continuing violation had occurred with respect
to Paraguay, as the failure to notify the Paraguayan Consul “occurred long ago and
has no continuing effect [upon his rights].”⁵¹
Following Breard, the Supreme Court has denied petitions for a writ of
certiorari in cases claiming Vienna Convention violations.⁵² In doing so, the Court’s
interpretation of Article 36 and the relief it offers to foreign nationals has been
questioned by Justices Stevens and Breyer. Both have noted that subsequent ICJ

⁴⁵ Id. at 376, quoting Reid v. Colvert, 354 U.S. 1(1957) (plurality opinion).
⁴⁶ Id.
⁴⁷ Breard, 523 U.S. at 376.
⁴⁸ Id. at 377.
⁴⁹ Id. at 377, quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 329-30 (1934).
⁵⁰ See Milken v. Bradley, 433 U.S. 267 (1977).
⁵¹ Breard, 523 U.S. at 378.
⁵² See, e.g., Torres v. Mullin, 124 S.Ct. 919 (2003) (denying cert.).

rulings interpreting the Vienna Convention appear to conflict with the majority’s
holding in Breard, and they appear to believe that the ICJ’s interpretation of
Convention obligations should be deemed binding on U.S. courts in light of the
jurisdictional authority provided to the ICJ by the Convention’s Optional Protocol.⁵³
Interpretation of Article 36 by the International Court of
Justice
Since 1998, the ICJ has agreed to hear three cases challenging U.S. application
of Vienna Convention Article 36 in death penalty cases. In each of these cases, the
petitioning State requested the ICJ to order the United States to rescind the
convictions and death sentences of certain nationals of the petitioning State on
account of an alleged failure by the United States to comply with its Article 36⁵⁴
obligations. Although the ICJ did not find that the petitioning State was owed such
relief in any of these cases, in two cases the ICJ ordered the United States to review
the sentences and convictions of foreign nationals who had not been provided with
requisite consular information owed under Convention Article 36. The following
sections describe the three cases brought to the ICJ concerning U.S. implementation
of Article 36.
Paraguay v. United States of America. As previously noted, in
conjunction with its appeal to the U.S. Supreme Court seeking a stay in the execution
of Paraguayan national Angel Breard, the Republic of Paraguay filed an application
with the ICJ seeking a ruling that the United States had failed to comply with the
duties owed to Breard and Paraguay under Vienna Convention Article 36. Paraguay
asked the ICJ to require the United States to halt Breard’s execution and rescind his
conviction on account of having failed to inform him of his right to notify
Paraguayan consular officials of his arrest⁵⁵ As mentioned previously, the ICJ
immediately issued a PMO instructing the United States to “take all measures at its
disposal” to prevent Breard’s execution pending a final ICJ ruling, but Breard was
nevertheless executed soon after the U.S. Supreme Court denied Breard and
Paraguay’s appeal in Breard v. Greene. In response, Paraguay rescinded its case

⁵³ See id. at 919 . (Stevens, J. dissent) (disputing the “hastily crafted” opinion in Breard and
arguing that, in light of subsequent ICJ jurisprudence, applying the procedural default rule
to Article 36 is “not only in direct violation of the Vienna Convention, but it is also
manifestly unfair”); Torres v. Mullin, 124 S.Ct. 562, 563-65 (Breyer, J. dissent) (suggesting
that the ICJ Optional Protocol obligates U.S. courts to follow the ICJ’s decisions concerning
Vienna Convention interpretation and application).
⁵⁴ The three countries that have petitioned the ICJ oppose the death penalty, and their
petitions concerned nationals sentenced to death by U.S. courts.
⁵⁵ See Application of the Republic of Paraguay in the case of Vienna Convention on
Consular Relations (Paraguay v. United States of America) (Apr. 3, 1998). Paraguay
asserted that it was “entitled to restitutio in integrum: the re-establishment of the situation
that existed before the United States failed to provide the notifications and permit the
consular assistance required by the Convention.” Id. at ¶ 4.

without the ICJ ever deciding the merits of Paraguay’s claims against the United
States for violating Article 36.⁵⁶
Federal Republic of Germany v. United States of America (Lagrand
Case). Shortly after Paraguay rescinded its claim against the United States,
Germany brought a case to the ICJ against the United States for failing to notify two
German nationals of their ability to have German consular officials contacted
following their arrest.⁵⁷ The LaGrand case concerned German brothers Karl and
Walter LaGrand, who were arrested in Arizona and charged with attempted armed
robbery, kidnaping, and murder, and subsequently convicted and sentenced to death⁵⁸
by an Arizona state court. Their claims for relief on account of not being informed
of the rights afforded under Convention Article 36 were procedurally defaulted from
being raised in U.S. state or federal court, with the Supreme Court finding that they
had “failed to show cause to overcome this bar.”⁵⁹ It was not disputed that U.S.
authorities had not informed the LaGrands of their right to have German consular
authorities notified of their arrest at any time prior to their being convicted and⁶⁰
sentenced to death. At the time that Germany filed its case with the ICJ, Karl
LaGrand had already been executed and Walter LaGrand’s execution was impending.
A day before Walter LaGrand’s scheduled execution, Germany filed its petition with
the ICJ, and the ICJ immediately issued a PMO instructing the United States to “take
all measures at its disposal” to ensure that Walter LaGrand was not executed pending
a final decision by the ICJ.⁶¹ Just as it had viewed the ICJ’s PMO in Paraguay v.
Breard as non-binding, the U.S. Supreme Court declined to treat the LaGrand PMO
as binding when Germany attempted to have the Court enforce it against Arizona,⁶²
and Walter LaGrand was subsequently executed. Unlike Paraguay, however,
Germany did not rescind its claim against the United States upon the execution of its
national.
In June 2001, the ICJ issued its decision in LaGrand. The ICJ’s interpretation
of Article 36 in LaGrand differed from that taken by U.S. courts in a number of
ways. First, contrary to the conclusion reached by a number of U.S. courts, the ICJ
concluded that the Vienna Convention did not simply confer rights upon signatory

⁵⁶ See International Court of Justice, Order of Discontinuance in the Case Concerning the
Vienna Convention on Consular Relations (Paraguay V. United States of America) (Nov.
10, 1998) available at
[http://212.153.43.18/icj www/idoc ket/ipaus/ipausorder/ipaus_iorder_981110.htm] .
⁵⁷ See Fed. Rep. of Germany v. United States (LaGrand Case), Final Judgment (June 27,
2002), available at
[http://212.153.43.18/icjwww/idocket/igus/igusj udgment/igus_ij udgme nt_20010625.htm
[]hereinafter “LaGrand”].
⁵⁸ For a background on the LaGrands’ case and its procedural history in U.S. courts, see
Stewart v. LaGrand, 526 U.S. 115 (1999).
⁵⁹ Id. at 119 (discussing Walter LaGrand’s petition exclusively, as Karl LaGrand had already
been executed).
⁶⁰ LaGrand at ¶ 123.
⁶¹ See International Court of Justice, Provisional Measures Order, Germany v. United States
of America (Mar. 3 1999).
⁶² Fed. Republic of Germany v. United States, 526 U.S. 111 (1999) (per curiam).

States, but also provided certain “individual rights” to these States’ nationals
pursuant to Article 36.⁶³ The ICJ further held that the United States was obligated
to provide foreign nationals covered under the Convention with a means to challenge
their convictions and sentences on account of having not been provided with the
requisite consular information owed under Article 36.⁶⁴
Secondly, the ICJ held that U.S. procedural default rules as they had been
applied in the cases of the LaGrand brothers, “had the effect of preventing ‘full effect
[from being] given to the purposes for which the rights accorded under ... [Article 36]
are intended,’ and therefore constituted a violation of Article 36.”⁶⁵ Indeed, the ICJ
concluded that a claim for redress for Convention violations could be raised
regardless of whether consular notification would have resulted in a different
verdict,⁶⁶ because a failure by the receiving State to fully comply with the
requirements of Article 36 was sufficient to enable the sending State and its affected
nationals to raise a claim seeking redress.⁶⁷ In cases where a foreign national had not
been provided with requisite consular information and had been “sentenced to severe
penalties,” an apology by the United States to the sending State would be an
insufficient form of redress.⁶⁸
Finally, the ICJ disputed the refusal by the United States to abide with the PMO
instructing the United States to take all necessary measures to prevent Walter
LaGrand’s execution before the ICJ had issued a final ruling on the merits of
Germany’s case. The ICJ characterized its PMOs as binding law upon participants
in ICJ cases, and held that the United States therefore had a legal obligation to fully
comply the ICJ’s PMO and final rulings.⁶⁹
In reaching its decision in LaGrand, the ICJ took note of the U.S. commitment,
reiterated throughout the proceedings, “to ensure implementation of the specific
measures adopted in performance of its obligations under Article 36,” and concluded
that “this commitment must be regarded as meeting the Federal Republic of
Germany’s request for a general assurance of non-repetition.”⁷⁰ The ICJ held,
however, that “should nationals of ... Germany nonetheless be sentenced to severe
penalties, without their rights under Article 36 ... having been respected, the United
States ... by means of its own choosing, shall allow the review and reconsideration
of the conviction and sentence by taking account of the violation of the rights set
forth in that Convention.”⁷¹

⁶³ LaGrand at ¶¶ 77, 89.
⁶⁴ See id. at ¶¶ 77, 86-89, 125.
⁶⁵ Id. at ¶ 91.
⁶⁶ Id. at ¶ 74.
⁶⁷ See id. at ¶ 123.
⁶⁸ Id.
⁶⁹ LaGrand at ¶¶ 110, 115-16.
⁷⁰ Id. at ¶ 128; see also id. at ¶ 123.
⁷¹ Id. at ¶ 128.

Mexico v. United States of America (Avena and Other Mexican
Nationals). On January 9, 2003, Mexico filed a case with the ICJ against the
United States for purported violations of Vienna Convention Article 36. Mexico
alleged that 54 Mexican nationals presently awaiting execution in the United States
were not informed of their right to have Mexican consular officials notified “without
delay” of their arrests, with many of the named nationals having not been informed
of their right to consular notification at any time prior to being convicted and
sentenced. Unlike in the previous cases filed with the ICJ by Paraguay and Germany,
none of the named nationals in Mexico’s application to the ICJ was scheduled to be
executed in the near future.⁷²
On March 31, 2004, the ICJ issued a judgment partially in favor of Mexico. In
doing so, the ICJ first dismissed the jurisdictional and admissibility challenges
presented by the United States. Of particular note, the ICJ concluded that Mexico did
not have to exhaust local remedies within the United States (i.e., allow Mexican
nationals to exhaust their judicial appeals) before Mexico could seek a determination⁷³
by the ICJ that its rights under Vienna Convention had been violated. Further,
although the United States alleged that Mexico’s own failure to consistently comply
with its Vienna Convention obligations towards detained U.S. citizens precluded it
from raising a claim against the United States, the ICJ found that even if these claims
were accurate, “this would not constitute a ground of objection to the admissibility
of Mexico’s claim.”⁷⁴
With respect to the merits of Mexico’s claims, the ICJ concluded that the United
States had violated its obligations under the Vienna Convention by failing to properly
notify Mexican nationals of their right to have Mexican consular officials notified of
their arrest, which in turn deprived Mexican consular officers of their right under
Article 36 to render assistance to their detained nationals.⁷⁵ Further, the ICJ ordered
the United States to remedy these violations, holding that the United States is
required to provide “by means of its own choosing, review and reconsideration of the
convictions and sentences of the Mexican nationals” named in Avena that takes into
account the rights afforded to these nationals under Vienna Convention Article 36.⁷⁶
The ICJ noted that in the cases of all but three of the named nationals in Avena, the

⁷² See Application of the United Mexican States in the case of Mexico v. United States of
America (Avena and Other Mexican Nationals) (Jan. 9, 2003), available at
[http://212.153.43.18/icj www/idocket/imus/imusorder /imus_iappli cation_20030109.PDF] .
⁷³ Avena at ¶ 40. The court made note that the individual rights of Mexican nationals “are
to be asserted, at any rate in the first place, within the domestic legal system of the United
States. Only when that process is completed and local remedies are exhausted would Mexico
be entitled to espouse the individual claims of its nationals through the procedure of
diplomatic protection.” Id. However, because Mexico’s claim before the ICJ was based in
part upon the injuries it had itself suffered, directly and through its nationals, on account of
alleged U.S. violations of Article 36, the ICJ concluded that Mexico did not need to exhaust
domestic remedies in the U.S. before exercising its right under the Convention’s Optional
Protocol to bring suit to the ICJ. See id.
⁷⁴ Id.at ¶ 47.
⁷⁵See id. at ¶¶ 106, 153.
⁷⁶LaGrand at ¶ 153.

criminal proceedings had not yet reached a stage where U.S. procedural default rules
would preclude judicial reexamination of the Mexican nationals’ convictions and
sent ences.⁷⁷
The ICJ made clear that it was not requiring that the convictions and sentences
of the Mexican nationals named in Avena be overturned; only that both the
convictions and sentences needed to be reviewed in light of the violations of the
Vienna Convention that had occurred, and that this reconsideration must focus on the
manner in which Convention violations might have affected the nationals’
convictions and sentences.⁷⁸ The United States had argued that the possibility of
executive clemency in cases where a convicted foreign national had been denied
consular information owed under Article 36 constituted sufficient “review and
reconsideration” and also complied with the ICJ’s previous ruling in LaGrand.⁷⁹ The
ICJ disagreed, however, and made clear that such reconsideration was to made via
judicial review, having concluded that clemency review through the executive branch
was “not sufficient in itself to serve as an appropriate means of ‘review and
reconsideration.’”⁸⁰
Further, the ICJ held that the United States must take additional steps to grant
prospective relief to Mexico against future Vienna Convention violations. Although
the ICJ acknowledged U.S. efforts to ensure that U.S. state and local law enforcement
authorities complied with the Vienna Convention, including via outreach efforts by
the U.S. State Department, the ICJ concluded that in all cases a foreign national of
a Convention party must be informed of rights under Article 36 once grounds exist
to believe the person is a foreign national, going so far as to suggest (though not
require) that such notice could be given along with the reading of an arrestee’s
Miranda rights.⁸¹
Importantly, the ICJ did not limit the scope of its holding to the Mexican
nationals directly at issue in Avena, and implied that the reasoning of its decision also
applied to U.S. treatment of other foreign nationals protected by the Vienna

⁷⁷ Avena at ¶ 113.
⁷⁸Id. at ¶¶ 121-128.
⁷⁹ Id. at ¶¶ 136-143. The United States argued that clemency review enabled consideration
of the effect that Article 36 violations may have had upon foreign nationals’ sentences, even
if procedural default rules precluded these nationals from seeking judicial review of their
sentences and convictions. See C^OUNTER-^ME^MO^R^I^A^L^O^F^T^H^EU^NI^TEDS^{TATES OF}A^M^E^RI^CA
^I^N^THEC^{ASE OF}A^{VENA AND}O^THERM^EXI^C^ANN^ATI^ONALS(M^EXI^C^OV.U^NI^TEDS^{TATES OF}
A^M^E^RI^CA),C^HAP^TERVI:T^HEU^NI^TEDS^{TATES COM}^P^LI^{ES W}^I^{TH ALL OF THE OBLI}^GATI^ONS
^UNDERA^RTI^C^LE36^{OF THE}VCCR, at 109-121 (Nov. 3, 2003), available at
[http://212.153.43.18/icj www/idoc ket/imus/imuspleadings/imus_ipleadings_20031103_c-
mem_toc.pdf]. For example, the United States noted that former Illinois Governor George
Ryan commuted the death sentences of at least 3 individuals named in the Avena case on
account of these nationals’ allegedly not having received requisite consular information
required by Article 36. Id. at 114-15, n.247.
⁸⁰Avena at ¶¶ 142-143
⁸¹ See id. at ¶¶ 64, 149.

Convention.⁸² Accordingly, the Avena decision could potentially provide Mexico and
all other Convention signatory States with grounds to challenge alleged Article 36
violations and demand judicial review of their affected nationals’ convictions and
sentences.
Potential U.S. Responses to ICJ Decisions Concerning
Implementation of Convention Article 36
According to the ICJ’s holdings in LaGrand and Avena, the United States is not
presently complying with its treaty obligations under Vienna Convention Article 36.
The United States has a number of options to deal with these ICJ decisions. The first
would be to maintain its current position. If the United States decided to comply
with these decisions, it may need to (1) provide further judicial review of the
convictions and sentences of the named defendants in Avena and (2) prospectively
modify federal and possibly state procedural default rules so as to prevent foreign
nationals from being denied the opportunity to seek remedies against violations of
their rights under Article 36. The United States might also consider methods to
improve notification procedures by state and local law enforcement officials, so as
to reduce the possibility that an Article 36 violation will occur. The United States
could potentially respond to the ICJ’s decisions in a number of ways, though various
U.S. options have differing policy and constitutional implications.
Possible Considerations in Deciding whether to Comply with the
ICJ Decisions in Avena and LaGrand. One possible way for the United States
to respond to the ICJ’s rulings in Avena and LaGrand is to simply disregard them.
In support of this policy, some might argue that it would be too costly and
burdensome for the United States to ensure that every foreign national covered by the
Vienna Convention is provided requisite consular information and guaranteed
judicial access to pursue claims for relief from Convention violations. Those
opposed to complying with the ICJ decision might further argue that the United
States should not alter its domestic criminal procedures on account of the opinion of
a non-U.S. judicial body, especially given the fact that the ICJ’s interpretation of the
Vienna Convention appears to run contrary to historical U.S. legislative, executive,
and judicial interpretation of U.S. obligations under the Convention.⁸³ On the other
hand, some might argue that failure to comply with the ICJ rulings might have
significant diplomatic consequences upon U.S. relations with Mexico and other
Convention parties, and might make other countries less likely to afford U.S. citizens
Article 36 protections.⁸⁴ Further, some might argue that U.S. noncompliance with

⁸²Id. at ¶ 151 (“To avoid any ambiguity, it should be made clear that, while what the Court
has stated concerns the Mexican nationals whose cases have been brought before it by
Mexico, the Court has been addressing the issues of principle raised in the course of the
present proceedings from the viewpoint of the general application of the Vienna Convention
... the fact that in this case the Court’s ruling has concerned only Mexican nationals cannot
be taken to imply that the conclusions reached by it in the present Judgment do not apply
to other foreign nationals finding themselves in similar situations in the United States”)^.
⁸³ See supra at pp. 4-11.
⁸⁴ Pursuant to Article 72(2) of the Vienna Convention, when a State infringes upon the legal
rights afforded to another State, the offended State may proportionately restrict the legal
(continued...)

ICJ rulings might establish a precedent for other countries to disregard ICJ rulings
concerning the Vienna Convention and other matters, and such noncompliance might
undermine international legal institutions in a manner arguably contrary to long-term
U.S. interests.⁸⁵
Judicial Compliance with ICJ Decisions Interpreting Article 36. If
the United States chose to comply with the ICJ’s holdings in LaGrand and Avena,
some might argue that no further legislative action is necessary to ensure U.S.
compliance. It could be argued that by ratifying the Optional Protocol of the Vienna
Convention, the United States agreed to accept ICJ rulings concerning U.S.
obligations under the Vienna Convention as binding. Accordingly then, some might
argue that the federal courts have a legal obligation to recognize ICJ decisions as
binding law concerning the nonapplicability of the procedural default rule to
Convention claims, and these courts must also apply the ICJ’s interpretation of U.S.
Convention obligations when reviewing state and federal claims for habeas relief.
Because the Supremacy Clause of Article VI of the U.S. Constitution states that “the
laws of the United States ... all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the judges
in every state shall be bound” by them, some might argue that states too would be
legally obligated to comply with ICJ decisions concerning Convention application.⁸⁶
This position has been taken by Justice Breyer and Stevens in dissenting Supreme
Court opinions⁸⁷ and at least one federal court subsequent to the ICJ’s decision in⁸⁸
LaGrand.
It does not appear certain, however, that federal and state courts would take such
a position for a number of reasons. First, there is a question as to the legal authority
that ICJ rulings have upon U.S. courts, and how any such authority relates to that of

(...continued)
rights it affords to the offending State under the Convention.
⁸⁵ The United States has relied on ICJ rulings in the past to condemn certain practices taken
by other nations. For example, the United States previously sought and received a judgment
by the ICJ ruling that Iran’s seizure and holding of U.S. diplomatic and consular officials
in 1979 was a violation of Iran’s Vienna Convention obligations which required redress.
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of
America v. Iran), Judgement (May 24, 1980). On the other hand, the United States has also
previously chosen not to comply with an ICJ judgment ordering it to pay reparations to
Nicaragua for acts of aggression when the United States disputed the ICJ’s jurisdiction and
argued that U.S. actions towards Nicaragua were necessary, inter alia, to defend Central
American allies of the United States against communist insurgents allegedly harbored and
supported by Nicaragua. See Case Concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States). As a result of the ICJ’s judgment in the
Nicaragua case, the United States subsequently rejected the ICJ’s compulsory jurisdiction
over U.S. actions, though it did not rescind its agreement to the Optional Protocol providing
the ICJ with jurisdiction over Vienna Convention disputes concerning the United States.
⁸⁶ U.S.C^ONST., Art VI, § 2.
⁸⁷ See supra note 53.
⁸⁸ See U.S. ex rel. Madej v. Schomig, 223 F. Supp. 2d 968 (N.D.Ill.,2002) (giving
consideration to ICJ’s holding in LaGrand, and finding that state procedural rule could not
serve as basis for denial of relief based on state’s violation of Vienna Convention).

the U.S. Supreme Court. As discussed previously, the Breard Court’s interpretation
of U.S. obligations under Article 36, at least with the respect to how these obligations
relate to U.S. criminal procedural rules, conflict with the rulings of the ICJ.⁸⁹ Article
3 of the U.S. Constitution states that the “judicial Power of the United States, shall
be vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.”⁹⁰ This power “shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made ....”⁹¹ Ultimately, U.S. lower courts interpreting the Vienna
Convention may conclude that it is the U.S. Supreme Court rather than the ICJ that
has final say under the U.S. constitutional system as to the meaning and applicability
of the Vienna Convention (or any other treaty), at least so far as the international
agreement applies to domestic U.S. practice. Accordingly, these courts would likely
apply the Supreme Court’s holding in Breard as to the obligations owed by the
Vienna Convention; though such courts may nevertheless follow the Supreme
Court’s lead in Breard and give the ICJ’s rulings “respectful” — though not binding
— consideration. A number of lower courts has continued to abide by the
Convention interpretation adopted by the Supreme Court or other U.S. federal courts
after the ICJ issued its ruling in LaGrand.⁹²
As discussed previously, AEDPA provides an additional, statutory barrier
toward federal courts reconsidering and reviewing Article 36 violations by state and
local law enforcement officials when such claims were not first raised in state court.
Even prior to the Supreme Court’s ruling in Breard, it had been a well-established
principle in constitutional law that the authority of a federal statute trumps that of a

⁸⁹ Compare supra at pp. 8-11 with supra at pp. 11-16.
⁹⁰ U.S.C^ONST., Art III, § 1.
⁹¹ U.S.C^ONST., Art III, § 2.
⁹² See, e.g., Banaban, 85 Fed. Appx. at 395 (holding that Vienna Convention does not create
individually enforceable rights); Mendez, 88 Fed. Appx. at 165 (denying federal habeas
relief for violation of Vienna Convention Article 36, as no clearly established federal law
directed that Article 36 instituted a judicially enforceable right); Emuegbunam, 268 F.3d at
377 (appeal subsequent to LaGrand decision rejecting premise the Article 36 creates
individual rights enforceable in federal courts); Jimenez v. Dretke, 2004 WL 789809
(N.D.Tex. 2004) (applying U.S. jurisprudence concerning Article 36 rather than ICJ
interpretations in LaGrand and Avena); Cauthern v. State, 2004 WL 315068
(Tenn.Crim.App. 2004) (unpublished) (holding that, “[g]iven the lack of direction from the
United States Supreme Court, we take our lead from the general principle that treaties are
not presumed to create privately enforceable rights,” despite the fact that petitioner raised
ICJ’s ruling in LaGrand); State v. Navarro, 659 N.W.2d 487 (Wis.App. 2003) (“In the
absence of explicit language in [the Vienna Convention] granting individual foreign
nationals a right of enforcement and a definitive directive from the United States Supreme
Court, we can see no reason to depart from the well-established general principles of
international law, the expressed position of the State Department, and the apparent long-
standing practices of the international community to find that Navarro has a private right of
action he can enforce in a state criminal proceeding”); Valdez v. State of Oklahoma, 46 P.3d
703, 706-10 (Okla.Crim.App. 2002) (in state post-conviction proceeding, noting the ICJ’s
decision in LaGrand but holding that Court’s ruling in Breard precluded it from considering
procedurally defaulted Article 36 claim); State v. Martinez-Rodriguez, 33 P.3d 267 (N.M.
2001) (holding that Mexican national did not have standing to bring claim for relief from
Vienna Convention violation).

treaty enacted earlier in time.⁹³ This does not mean that an earlier treaty is rescinded
by a subsequent, conflicting federal law; its application is limited by the subsequent
congressional action.⁹⁴ Thus, even if the United States has an international legal
obligation pursuant to the ICJ’s rulings to provide review for all Article 36 claims
made by affected foreign nationals, U.S. federal law may prevent this obligation from
being fulfilled.
If Congress deemed it appropriate to ensure review and reconsideration of state
convictions and sentences of foreign nationals denied the rights owed to them under
Article 36 when the foreign national has not raised an Article 36 claim in state court,
it would likely have to amend AEDPA to enable federal habeas review of such
claims. Absent such authorization, it appears unlikely that the United States could
fully comply with the ICJ’s rulings requiring the elimination of procedural default
rules that inhibit foreign nationals from raising Article 36 claims, unless the fifty
states amended their procedural default rules to allow review and reconsideration of
the sentences and convictions of foreign nationals raising Article 36 claims.
Better State and Local Law Enforcement Article 36 Notification
Procedures. Because present outreach efforts by the State Department have not
been wholly successful in ensuring that foreign nationals arrested by state and local
law enforcement officials are provided with necessary consular information,
Congress also might consider employing more direct measures to ensure state and
local law enforcement compliance with Convention requirements.
One such option would be for Congress to enact legislation requiring state and
local authorities to (1) inform arrested persons of their right to have their consulate
notified, in a manner similar to traditional Miranda procedures and (2) contact
relevant consular authorities on an arrested foreign national’s behalf if the national
approves of such notification. A direct legal requirement on state and local officials
to comply with Article 36 requirements would likely reduce the frequency of Vienna
Convention violations at the state and local level, and also reduce the possibility that
review and reconsideration of a foreign national’s conviction and sentence would be
warranted on account of the national having been deprived of requisite consular
notification information.
The constitutional grounds concerning federal commandeering of state and local
law enforcement officials to ensure compliance with U.S. obligations under the
Vienna Convention or other federal treaties remains untested. In the cases of New⁹⁵⁹⁶
York v. United States and Printz v. United States, the Supreme Court declared two
federal laws that attempted to commandeer state executive and legislative authority
to be unconstitutional abridgements of state rights protected by the Tenth

⁹³ See, e.g.,Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson, 124 U.S. 190
(1888); The Chinese Exclusion Case, 130 U.S. 581 (1889); R^ESTATEM^ENT(T^HI^RD)^OF
F^OREI^GNR^ELATI^ONSL^AW§115(1987).
⁹⁴ See R^ESTATEM^ENT(T^HI^RD)^OFF^OREI^GNR^ELAT^I^O^N^SL^AW§115n.2(1987);L^OUI^SH^ENKI^N,
F^OREI^GNA^FFAI^R^{S AND THE}U.S.C^ONSTI^TUTI^ON209-10(2^nd ed. 1996).
⁹⁵ 505 U.S. 144 (1992).
⁹⁶ 521 U.S. 898 (1997).

Amendment of the U.S. Constitution.⁹⁷ The Printz case especially raises concern
regarding the constitutionality of any federal legislation requiring state and local law
enforcement officials to notify foreign nationals of their ability to have their
consulates contacted pursuant to Convention Article 36. In Printz, the Supreme
Court ruled in a 5-4 opinion that a federal law requiring local law enforcement
officials to conduct background checks on handgun purchasers as part of a federal
program was an unconstitutional infringement of states’ Tenth Amendment rights.
Some might argue that, applying Printz, a federal law requiring state and local law
enforcement officials to provide arrested or detained foreign nationals with consular
information and access would be constitutionally impermissible.
On the other hand, the Supreme Court has previously upheld congressional
action taken to give force to a ratified treaty, even when such action would otherwise
impede on a state’s rights under the Tenth Amendment. In the 1920 case of Missouri
v. Holland, the Supreme Court upheld a federal law regulating the killing of
migratory birds that had been adopted pursuant to a treaty between the United States
and Great Britain, despite a Tenth Amendment challenge by the State of Missouri.⁹⁸
Notwithstanding the fact that a similar statute enacted in the absence of a treaty had
been ruled unconstitutional, the Court ruled in an opinion by Justice Holmes that the
federal law at issue in Holland was a proper exercise of Congress’s power to make
laws necessary and proper for the execution of a binding treaty, and it was not
“forbidden by some invisible radiation from the general terms of the Tenth
Amendment.”⁹⁹ Accordingly, some might argue that, applying Holland, Congress
has constitutional authority to enact legislation requiring state and local officials to
take actions that will comply with U.S. obligations under the Vienna Convention.
The holding of Holland appears to remain good law, as the Supreme Court has
continued to cite to it approvingly even following its decision in Printz,¹⁰⁰ albeit
apparently never in support of the proposition that the treaty power goes so far as to
permit Congress to enact legislation commandeering state and local officials to
perform actions to fulfill U.S. treaty obligations.¹⁰¹ However, the scope of the
Court’s holding in Holland, especially with respect to the scope of the “invisible
radiation” emanating from the Tenth Amendment, remains open to interpretation.
One constitutional and international legal scholar has argued that Justice Holmes’s
opinion in Holland:
did not say that there were no limitations on the Treaty Power in
favor of the states, only that there were none in any ‘invisible
radiation’ from the Tenth Amendment. The Constitution

⁹⁷ U.S.C^ONST., amend. X (“[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states ...”).
⁹⁸ 252 U.S. 416 (1920).
⁹⁹ Id. at 434-35.
¹⁰⁰ See, e.g., United States v. Lara, 124 S.Ct. 1628 (2004) (citing Holland to stand for the
proposition that “treaties made pursuant to that power can authorize Congress to deal with
‘matters’ with which otherwise ‘Congress could not deal’”) (internal citation omitted).
¹⁰¹ The Holland case concerned a law imposing duties upon federal wildlife agents rather
than state game wardens.

probably protects some few states’ rights, activities, and
properties against any federal invasion, even by treaty.¹⁰²
It is unclear whether the constitutional prohibition against federal commandeering
of state and local law enforcement officials would be sustained when such
commandeering was pursuant to federal legislation implementing a treaty obligation,
as opposed to legislation enacted solely pursuant to Congress’s commerce power, as
had been the case in Printz. In the words of one commentator examining the
historical foundations of U.S. treaty-making power and its relationship with the
Tenth Amendment, “Whether [Tenth Amendment protections] apply in the treaty
context and to what extent remain open questions about which there already has been
and will continue to be substantial disagreement.”¹⁰³ Indeed, a number of legal
scholars has raised this question in recent years, particularly with respect to the
Vienna Convention, without reaching a clear consensus.¹⁰⁴
If Congress adopts legislation commandeering state and local law enforcement
so as to ensure their compliance with U.S. obligations under the Vienna Convention,
it appears likely that a legal challenge would be brought against the federal
government alleging an infringement of states’ Tenth Amendment rights, and it is
unclear whether such legislation would be upheld as constitutional. Accordingly, if
Congress sought to pursue this question, to affect state and local law abidance with
the Vienna Convention in a manner beyond the outreach program already employed
by the State Department, it might instead consider legislation that influences states
and localities less directly than through commandeering, such as legislation
conditioning federal funding for state services upon state compliance with the
procedures described in Vienna Convention Article 36 and the ICJ’s rulings in
LaGrand and Avena. Conditioning federal funding upon state performance of a
particular function has been a long-standing practice that has been upheld on several
occasions by the Supreme Court.¹⁰⁵ Although conditioning federal funding on state
compliance with Vienna Convention procedures would not guarantee that every state
would adopt necessary measures, it may provide states with a strong incentive to take
actions necessary to ensure U.S. compliance with the ICJ’s rulings concerning
application of the Vienna Convention.

¹⁰² H^ENKI^N, supra note 94, at 193.
¹⁰³ David M. Golove, Treaty-making and the Nation: the Historical Foundations of the
Nationalist Conception of the Treaty Power, 98 M^IC^H.L.R^EV.1075, 1087 (2000).
¹⁰⁴ See, e.g., Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103
C^OLUM.L.R^EV. 403 (2003); Molora Vadnais, A Diplomatic Morass: An Argument Against
Judicial Involvement in Article 36 of the Vienna Convention on Consular Relations, 47
U.C.L.A.L.R^EV.307 (1999); Carlos Manuel Vázquez, Symposium, Breard, Printz, and the
Treaty Power, 70 U.C^OLO.L.R^EV. 1317 (1999); Note, Too Sovereign but Not Sovereign
Enough: Are U.S. States Beyond the Reach of the Law of Nations?, 116 H^ARV.L.R^EV. 2654
(2003); Janet R. Carter, Note, Commandeering under the Treaty Power, 76 N.Y.U.L.R^EV.

598 (2001).

¹⁰⁵ See, e.g.,New York, 505 U.S. 144 (upholding federal encouragement of particular state
action through the conditioning of federal funding, even while prohibiting the federal
government from directly compelling state action); South Dakota v. Dole, 483 U.S. 203
(1987) (upholding congressional conditioning of highway funds on States’ adoption of
minimum drinking age as constitutional exercise of congressional spending power).

It might also be possible to argue that the commandeering principle does not
apply to federal legislation concerning state courts, and that Congress might therefore
enact legislation requiring state courts to inform alien prisoners at court proceedings
of their right to have relevant consular officials notified of their arrest and detention.
The cases of Printz and New York established constitutional prohibitions on the
federal commandeering of state executive and legislative branches, but did not speak
to the subject of federal commandeering of the state judiciary. The Supreme Court
has previously found that requiring state courts to enforce federal laws was
permissible under the Supremacy Clause.¹⁰⁶ It might be argued, however, that while
the Supremacy Clause may permit the federal government to require state courts to
adjudicate federal claims, it does not go so far as to permit the federal government
to commandeer state courts to perform non-adjudicatory functions, such as informing
foreign nationals of their rights under the Vienna Convention.

¹⁰⁶ See Testa v. Katt, 330 U.S. 386 (1947).