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Individual rights under Vienna Convention on Consular Relations—duty to inform detained foreign nationals of right to seek consular assistance—protections against arbitrary deprivation of life—advisory jurisdiction of Inter-American Court of Human Rights

Published online by Cambridge University Press:  27 February 2017

William J. Aceves
William J. Aceves*
Affiliation:
California Western School of Law
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 3 , July 2000 , pp. 555 - 563
Copyright
Copyright © American Society of International Law 2000

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References

1 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.

2 See, e.g., Federal Republic of Germany v. United States, 526 U.S. 111 (1999); Republic of Paraguay v. Allen, 134 F.3d 622 (4th Cir.), aff’d sub nom. Breard v. Greene, 523 U.S. 371 (1998). See generally Aceves, William J., Case Report: Case Concerning the Vienna Convention on Consular Relations (Federal Republic of Germany v. United States) [LaGrand Case], 93 AJIL 924 (1999)CrossRefGoogle Scholar [hereinafter Aceves, Case Report: LaGrand]; Aceves, William J., Case Report: Application of the Vienna Convention on Consular Relations (Paraguay v. United States), 92 AJIL 517 (1998)Google Scholar [hereinafter Aceves, Case Report: Paraguayv. United States]; Agora: Breard, 92 AJIL 666 (1998).

3 The Mexican government submitted its request three months after a Mexican national was executed in Virginia despite clear evidence that he was never informed of his right to consular assistance. See Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997).

4 American Convention on Human Rights, opened for signature Nov. 22, 1969 Google Scholar, 1144 UNTS 123.

5 The Mexican government requested interpretation of several agreements, including the Vienna Convention, the International Covenant of Civil and Political Rights, the OAS Charter, the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights.

6 Rules of Procedure of the Inter-American Court of Human Rights (entered into force Jan. 1, 1997), obtainable from <http://www.cidh.org/basic.htm.

7 Indeed, the Inter-American Commission noted that a comparative study of national legislation suggests it is possible to annul judicial proceedings if a violation of the Vienna Convention is prejudicial to a foreign national.

8 Written Observations of the United States of America (June 10, 1998), at 2 (on file with author).

9 Id. at 3–4.

10 When the United States filed its written observations, the Republic of Paraguay was still pursuing its case against die United States before the International Court of Justice.

11 Written Observations of the United States of America, supra note 8, at 5.

12 Id. at 7.

13 Id. at 8.

14 Id.

15 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Inter-American Court of Human Rights, Advisory Opinion No. OC-16/99, para. 45 (1999) [hereinafter Advisory Opinion].

16 Id., paras. 52, 61. The Court found that the case before the Inter-American Commission involved entirely different proceedings. See Individual Complaint to the Inter-American Commission on Human Rights Against the United States of America on Behalf of Carlos Santana, Case 11.130, Inter-Am. C.H.R., OEA/ser.L/V/II.85 (1993). The Court made a similar finding with respect to die proceedings before the International Court of Justice. Indeed, the Inter-American Court emphasized that it and the ICJ are distinct and autonomous judicial institutions, with their own responsibilities.

17 Advisory Opinion, supra note 15, para. 65.

18 Id., para. 80.

19 Id., para. 84.

20 Id., para. 104.

21 Id., para. 106.

22 Id., para. 92.

23 Id., para. 115.

24 Id., para. 119.

25 Restrictions on the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion No. OC-3/83, Inter-Am. Ct. H.R. (ser. A), No. 3, paras. 52, 55 (1983), obtainable from<http://wwwl.umn.edu/humanrts/iachr/iachr.html.

26 Advisory Opinion, supra note 15, para. 135.

27 Id., para. 139; see Garrido and Baigorria Case, 26 Inter-Am. Ct. H.R. (ser. C), No. 39, para. 46 (1996), obtainable from <http://wwwl.umn.edu/hurnanrts/iachr/iachr.html.

28 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 29, 1155 UNTS 331.

29 Advisory Opinion, supra note 15 (Trindade, J., concurring) [hereinafter Trindade Concurrence].

30 Id., para. 4.

31 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 ICJ Rep. 3 (May 24).

32 Trindade Concurrence, supra note 29, para. 23.

33 Id., para. 35.

34 Advisory Opinion, supra note 15 (Ramírez, J., concurring).

35 Id.

36 Advisory Opinion, supra note 15, para. 4 (Jackman, J., partially dissenting).

37 Id., para. 9.

38 Although two cases involving the Vienna Convention have been filed with the International Court of Justice, the ICJ has not issued an opinion on the merits in either case. In the Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States), the United States failed to comply with a provisional measures order issued by the ICJ. Paraguay discontinued its action after the United States issued a formal apology. In the LaGrand Case (Federal Republic of Germany v. United States), the United States again failed to comply with the provisional measures order, and a decision on the merits has not yet been rendered. See supra note 2. See generally Aceves, Case Report: LaGrand, supra note 2; Aceves, Case Report: Paraguay v. United States, supra note 2.

39 See, e.g., Christoph J. M., Safferling, Case Report: In re Bickel and Franz, 94 AJIL 155 (2000)Google Scholar.

40 See, e.g., Commission on Human Rights, The Question of the Death Penalty, ESC Res. 2000/65, UN ESCOR, UN Doc. E/CN.4/RES/2000/65 (2000)Google Scholar; Commission on Human Rights, The Question of the Death Penalty, ESC Res. 1999/61, UN Doc. E/CN.4/RES/1999/61 (1999)Google Scholar.

41 United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en banc).

42 Id. at 64 n.4.

43 Supplemental Brief for Defendant-Appellants at 6, United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999) (Nos. 98–50347 and 98–50305).

44 Supplemental Brief for Plaintiffs-Appellees at 8, United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999) (Nos. 98–50347 and 98–50305).

45 United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000) (en banc). [Editor’s note: the case will be addressed in a subsequent issue.]

46 See, e.g., Breard v. Greene, 523 U.S. 371 (1998).

1 Three of the original judges sat in the second decision: Mohamed Shahabuddeen, Lai Chand Vohrah, and Rafael Nieto-Navia. President Gabrielle Kirk McDonald and Judge Wang Tieya were replaced by President Claude Jorda and Judge Fausto Pocar. Decisions of the ICTR are available online at <http://www.ictr.org.

2 Prosecutor v. Barayagwiza, Indictment, No. ICTR-97–19 (Oct. 22, 1997) (confirmed on Oct. 23, 1997, Prosecutor v. Barayagwiza, No. ICTR-97–19-I); Prosecutor v. Barayagwiza, Amended Indictment, No. ICTR-97–19 (June 28, 1999) (leave to amend granted on April 11, 2000, Prosecutor v. Barayagwiza, No. ICTR-97–19-I). The trial chamber had delayed its decision on the amended indictment until the appeals chamber decided whether the prosecution against Barayagwiza could proceed (which was the central issue in the March decision).

3 SC Res. 955, annex (Nov. 8, 1994), UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).