Academic journal article The George Washington International Law Review

Determining the Remedy for Violations of Article 36 of the Vccr: Review and Reconsideration and the Clemency Process after Avena

Academic journal article The George Washington International Law Review

Determining the Remedy for Violations of Article 36 of the Vccr: Review and Reconsideration and the Clemency Process after Avena

Article excerpt


Article 36 of the Vienna Convention on Consular Relations (VCCR) requires that foreign nationals be notified of the right to confer with consular officials when they are detained by law enforcement officials in member states.1

Interpreting this provision in the LaGrand case,2 the International Court of Justice (ICJ) determined that if a receiving state fails to inform a detained foreign national of his rights under the VCCR, it is in violation of Article 36 (1).3 In January 2003 Mexico initiated proceedings against the United States before the ICJ for violations of Article 36 (1).4 In the case Concerning Avena and Other Mexican Nationals (Avena), Mexico alleged that no fewer than fiftyfour Mexican nationals had received the death penalty in the United States following proceedings in which competent authorities failed to comply with their obligations under 36(1).5

The United States acknowledged its failure to provide consular notification to many of the respective Mexican nationals: thus, there was no real dispute between Mexico and the United States on this issue.6 The two nations sharply disagreed, however, over the appropriate remedy for such a violation under the VCCR.7 Mexico requested a "meaningful remedy at law for violation of the rights afforded to Mexico and its nationals," which could only be provided by a restoration of "the status quo ante."s The United States, on the other hand, argued that this remedy misinterpreted the LaGrandjudgment and would unduly interfere with the administration of its criminal justice system.9 Scholars uniformly desired that the United States find a way to comply with VCCR requirements.10 Nevertheless, many disagreed as to what should be the remedy. Some scholars felt that granting Mexico's proposed remedy might be futile because of the likelihood that the United State would not comply with the ICJ order,11 while others felt that the position of the United States was a charade that provided no real remedy for individuals whose rights had been denied.12

In April 2003 the ICJ issued its order in Avena, holding that the United States breached its obligations under the VCCR.13 Moreover, the Court found that the clemency process did not constitute adequate review and reconsideration as required by LaGrand.14 Nevertheless, the Court equivocated with respect to the remedy, again recommending that the United States "provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals."15 Although it remains to be seen how the United States will formally interpret the judgment, there is cause for both hope and pessimism as these cases play out in the U.S. court system.

This Note examines the respective arguments of Mexico and the United States and ultimately concludes that Mexico's argument has more merit in light of the LaGrand judgment. First, this Note discusses the history of Article 36(1) claims in both U.S. courts and in the ICJ. second, it details the legal framework that the ICJ set forth in LaGrand for violations of Article 36. Next, it considers the remedies suggested by the United States and Mexico in Avena and examines the ICJ's holding. Finally, this Note supports Mexico's position in recognizing the inadequacy of the clemency process as a remedy for a violation of Article 36. It also examines the response of the United States to the Avena decision both politically and judicially. Although there is extensive commentary regarding various aspects of the case, this Note ignores issues of jurisdiction and admissibility, focusing instead on the argument over the appropriate remedy.


The ICJ views "Article 36, paragraph 1, [as] establish [ing] an interrelated regime designed to facilitate the implementation of the system of consular protection."16 After receiving draft Articles from the International Law Commission, the General Assembly convened the United Nations Conference on Consular Relations from March 4 to April 22, 1963. …

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