Keywords
Vienna Convention on Consular Relations
remedies
Inter-American Court of Human Rights
International Court of Justice
U.S. courts
How to Cite
Abstract
This paper seeks to analyze whether Article 36 (1) (b) of the Vienna Convention on Consular Relations (1963) confers an individual right to consular notification upon detained foreign nationals under international and U.S. courts decisions, and if such right is to be considered a human right in the current state of international law. This paper will further analyze whether characterizing consular notification as a fundamental human right would make a difference regarding the remedies that should be available for its violation, since U.S. courts have generally denied remedies for clear violations of the right to consular notification or have required a showing of prejudice to the outcome of the trial in order to trigger judicial remedies.
The Inter-American Court’s Advisory Opinion OC-16/99 and the LaGrand and Avena judgments of the International Court of Justice (ICJ) are studied, which specifically interpreted Article 36 of the Vienna Convention and addressed the issue of the remedies that should be available in U.S. courts in order to give full effect to the right to consular notification. Finally, this paper explores how U.S. courts have interpreted Article 36
of the Vienna Convention before and after the aforementioned international judicial decisions on the matter. It is concluded that a growing international consensus considers the right to
consular notification a human right pertaining to the minimum guarantees of due process, given the fact that the right to a fair trial of foreign defendants is in jeopardy if Article 36 of the Vienna Convention is not enforced effectively by the authorities of the receiving State. However, the U.S. jurisprudence regarding the right to information on consular assistance remains unsettled even after the ICJ’s judgments in LaGrand and Avena, because most U.S. courts are not likely to find an
individual enforceable right in Article 36 of the Vienna Convention.
This journal is registered under a Creative Commons Attribution 4.0 International Public License. Thus, this work may be reproduced, distributed, and publicly shared in digital format, as long as the names of the authors and Pontificia Universidad Javeriana are acknowledged. Others are allowed to quote, adapt, transform, auto-archive, republish, and create based on this material, for any purpose (even commercial ones), provided the authorship is duly acknowledged, a link to the original work is provided, and it is specified if changes have been made. Pontificia Universidad Javeriana does not hold the rights of published works and the authors are solely responsible for the contents of their works; they keep the moral, intellectual, privacy, and publicity rights.
Approving the intervention of the work (review, copy-editing, translation, layout) and the following outreach, are granted through an use license and not through an assignment of rights. This means the journal and Pontificia Universidad Javeriana cannot be held responsible for any ethical malpractice by the authors. As a consequence of the protection granted by the use license, the journal is not required to publish recantations or modify information already published, unless the errata stems from the editorial management process. Publishing contents in this journal does not generate royalties for contributors.