Implementation of LaGrand and Avena in Germany and the United States: Exploring a transatlantic divide in search of a uniform interpretation of consular rights

European Journal of International Law

Volumn 18, Issue 2, 2007, Pages 317-336

  Hoppe, Carsten ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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[No Author keywords available]

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EID: 34547919652     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm015     Document Type: Article

References (117)

1. Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) [2004] ICJ Rep 12.
2. LaGrand Case (Germany v. United States of America) [2001] ICJ Rep 466.
3. The right is expressed in Art. 36(1)(b), of the Vienna Convention in the following terms: '[i]f he [the person arrested] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph ....': Vienna Convention on Consular Relations, Art. 36, 4 Apr. 1963, 21 UST 77, 596 UNTS 261 (hereinafter Vienna Convention).
4. See, e.g., Simma and Hoppe, 'From LaGrand and Avena to Medellin - A Rocky Road Toward Implementation', 14 Tulane J Int'l & Comp L (2006) 7;
5. Pulkowski, 'Testing Compliance Theories: Towards the United States Obedience of International Law in the Avena Case', 19 Leiden J Int'l L (2006) 511, issue 2;
6. Quigley, 'Toward More Effective Judicial Implementation of Treaty-Based Rights', 29 Fordham Int'l LJ (2006) 552;
7. Ostrovsky and Reavis, 'Rebus Sic Stantibus: Notification of Consular Rights after Medellin', 27 Michigan J Int'l L (2006) 657;
8. Le Mon, 'Post-Avena Application of the Vienna Convention on Consular Relations by United States Courts', 18 Leiden J Int'l L (2005) 215;
9. Paulus, 'From Neglect to Defiance? The United States and International Adjudication', 15 EJIL (2004) 783, at 784, 796;
10. Carter, 'Compliance with ICJ Provisional Measures and the Meaning of Review and Reconsideration under the Vienna Convention on Consular Relations: Avena and other Mexican Nationals', 25 Michigan J Int'l L (2003) 117;
11. Sir Robert Jennings, 'The LaGrand Case', 1 Law and Practice of International Courts and Tribunals (2002) 13.
12. Avena Case, supra note 1.
13. LaGrand Case, supra note 2.
14. Avena Case, supra note 1.
15. LaGrand Case, supra note 2.
16. In the first ICJ case on the matter, concerning a Paraguayan national, Angel Breard, Paraguay withdrew the case after Breard was executed: See Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) [1998] ICJ Rep 248.
17. LaGrand Case, supra note 2.
18. Avena Case, supra note 1.
19. Sanchez-Llamas v. Oregon, 126 S Ct. 2669 (2006).
20. BVerfG, 2 BvR 2115/01 of 19 Sept. 2006 (hereinafter Vienna Convention Decision).
21. Of course this hope was crushed as soon as Walter was executed despite the ICJ's ordering provisional measures to the contrary.
22. Art. 1 of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, 18 Apr. 1961, 596 UNTS 487, 21 UST 325, reads as follows: [d]isputes arising out ofthe interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the court by an application made by any party to the dispute being a Party to the present Protocol. As we shall see below, the United States withdrew from the Optional Protocol on 7 Mar. 2005.
23. For an explanation ofthe procedural default rule see infra note 33 and accompanying text.
24. In a similar case, the Canadian citizen Joseph Stanley Faulder was executed on 17 June 1999 in Texas despite an order of provisional measures issued by the Inter-American Commission on Human Rights seeking to halt his execution. Yet, in this case, the government of Canada did not pursue any international law remedies.
25. Avena Case, supra note 1.
26. For an in-depth discussion of the two cases see Simma and Hoppe, supra note 4.
27. See State v. LaGrand, No. CR-07426, Minute Entry (Pima County Superior Ct, 2 Mar. 1999).
28. LaGrand Case, supra note 2, 9 at 16 (Order of 3 Mar. 1999 - Request for the Indication of Provisional Measures).
29. LaGrand Case, supra note 2, at 475.
30. Ibid., at 513.
31. ICJ President Guillaume, however, stressed in his Declaration appended to the LaGrand judgment that there could not be an a contrario interpretation with respect to nationals of other states: ibid. at 517.
32. The ICJ then made the substance of this Declaration an integral part of the Avena judgment: Avena Case, supra note 1, at 69-70.
33. Ibid., at 17.
34. Ibid., at 53-54.
35. Ibid., at 57.
36. With respect to those three individuals the ICJ had earlier passed provisional measures: See Avena Case, supra note 1 (Order of 5 Feb. 2003 - Request for the Indication of Provisional Measures).
37. Ibid., at 70.
38. App. No. 74969/01, Görgülü, judgment of 26 Feb. 2004; The Bundesverfassungsgericht handed down four decisions to ensure implementation: BVerfG, 2 BvR 1481/04 of 14 Oct. 2004, 111 BVerfGE 307 (hereinafter Görgülü I); BVerfG, 1 BvR 2790/04 of 28 Dec. 2004 (hereinafter Görgülü II); BVerfG, 1 BvR 2790/04 of 28 Jan. 2005 (hereinafter Görgülü III); BVerfG, 1 BvR 2790/04 of 10 June 2005 (hereinafter Görgülü IV).
39. Torres v. Mullin, 540 US 1035 (2003);
40. Torres v. Oklahoma, No. PCD-04-442, slip op. (Ct. Crim. App., 13 May 2004), reprinted in 43 ILM (2004) 1227, at 1229;
41. Torres v. State, 120 P 3d 1184 (2005).
42. See, e.g., Simma and Hoppe, supra note 4.
43. Medellin v. Dretke, 125 S Ct 2088, 2089 (2005).
44. The rule stands for the principle of procedural law that a defendant who did not raise a claim at trial cannot raise it in subsequent appeals, state or federal the claim is lost or in legalese 'defaulted'.
45. For a detailed overview of this case law see Simma and Hoppe, supra note 4.
46. A more detailed analysis of these aspects can be found in Ostrovsky and Reavis, supra note 4.
47. The text of the memorandum reads as follows: '[t]he United States is a party to the Vienna Convention on Consular Relations (the "Convention") and the Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), which gives the International Court of Justice (ICJ) jurisdiction to decide disputes concerning the "interpretation and application" of the Convention. I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its inter-national obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision. [Signature]', available at: http://www.whitehouse.gov/news/releases/2005/02/20050228-18.html.
48. LaGrand Case, supra note 2, at para. 128(7);
49. Avena Case, supra note 1, at para. 153 (11).
50. Avena case, supra note 1, at para. 151.
51. See also supra note 23.
52. For an early contemplation of the implementation of ECHR judgments in dictum see Frowein, 'Anmerkung zur Pakelli-Entscheidung des Bundesverfassungsgerichts (commentary and reprint of the decision)' [1986] ZAÖRV 286, available at: http://www.zaoerv.de/46_1986/ 46_1986_2_b_286_294.pdf.
53. The Bundesverfassungsgericht is divided into two Senate (panels), which are further subdivided into Kammern (chambers). For a short overview of its organization see the court's website at http://www.bundesverfassungsgericht.de/en/organization/organization.html.
54. See Görgülü I, supra note 28;
55. Görgülü II, supra note 28 (ordering provisional measures);
56. Görgülü III, supra note 29 (rejection of challenge to order of provisional measures);
57. Görgülü IV, supra note 28 (merits);
58. At present there is an official translation only of Görgülü I, which is available at: http://www.bundesverfassungsgericht.de/ entscheidungen/rs20041014_2bvr148104en.html.
59. App. No. 74969/01, Görgülü, supra note 29.
60. Ibid.
61. See Görgülü I, supra note 29, at para. 17.
62. See ibid., at paras 33-34.
63. See ibid., at para. 35.
64. See ibid., at para. 48.
65. See ibid., at para. 39. In this regard the Vienna Convention Decision, which I will discuss below, seems to afford the ICJ a special, more fundamental role, in that even decisions in cases to which Germany was not a party are held to give rise to a duty to afford due consideration ('take into account'). This will be an interesting subject for study, especially should this interpretation come up again in a decision of one of the Senate or the court in full.
66. See the translation of ibid., supra note 41, at para. 62.
67. Görgülü II, IV, both supra note 29.
68. Görgülü II, supra note 29, at para. 28;
69. Görgülü IV, supra note 29, at para. 34.
70. The Court groups the defendants and claimants in the constitutional case using a combination of Roman and Arabic numerals to address their different positions and resulting constitutional claims separately. It is beyond the scope of this article to track the decision at that level of detail. Yet it deserves mentioning that one of the wrinkles so addressed is that the German and Serbo-Montenegrin claimants were actually claiming a derivative right to have the statement of the Turkish main defendant excluded, in a 'fruit of the poisonous tree' fashion, meaning that evidence that was obtained in violation of the law could never be legally introduced, no matter against whom (the German claimant could of course never claim an Art. 36 right himself).
71. Vienna Convention Decision, supra note 13, at paras 22-24.
72. BGH, Judgment of 7 Nov. 2001, 5 StR 116/01, at 3-5.
73. Vienna Convention Decision, supra note 13, at paras 27-29.
74. BGH, Judgment of 29 Jan. 2003, 5 StR 475/02.
75. This question is not to be confused with the status of the treaty itself in the domestic legal order. In Germany and the US a treaty has the status of a federal law, as acknowledged in the respective decisions: see Vienna Convention Decision, supra note 13, BVerfG at 53,
76. Sanchez-Llamas, supra note 12,
77. Breyer J., dissenting, at 9.
78. Constitution of the United States, Art. VI.
79. Sanchez-Llamas, supra note 57, at 11.
80. Ibid., at 18 (citing Brief for ICJ experts at 11) (emphasis in original).
81. See supra note 15 and accompanying text.
82. Sanchez-Llamas, supra note 57, at 20-21.
83. Torres v. Mullin, 124 S Ct. 562 (Mem), 540 US 1035 (2003) (Breyer, J., dissenting).
84. Sanchez-Llamas, supra note 57, at 20-21
85. (citing Breard v. Greene, 523 US 371, 375 (1998)).
86. Vienna Convention Decision, supra note 13, at paras 20-21.
87. Ibid., at para. 54.
88. The Court discusses the examples of the ECHR and the ICC: ibid., at paras 55-56.
89. Sanchez-Llamas, supra note 57, at 21-22.
90. See, e.g., ibid., at 23.
91. See ibid., Opinion of Justice Breyer, at 23.
92. Ginsburg J. joined the dissent only as to its Part II, dealing with the issue whether the Convention gives rise to individual rights enforceable in a domestic court.
93. Sanchez-Llamas, supra note 57,
94. Breyer J., dissenting, at 20.
95. Ibid.
96. Ibid., at 21-22 (providing two full pages of references).
97. Ibid., at 23-24.
98. Vienna Convention Decision, supra note 13.
99. Ibid., at para. 43.
100. Ibid.
101. Ibid., at para. 48.
102. Ibid., at para. 54.
103. Ibid., at para. 60.
104. Ibid., at para. 61.
105. Ibid., at para. 69.
106. The dissenting opinion penned by Breyer J. emphatically affirms that Art. 36 creates individual rights: '[w]here language, the interpretation of the treaty taken separately or together so strongly point to an intent to confer enforceable rights upon an individual, I cannot find in the simple fact of the Executive Branch's contrary view sufficient reason to adopt the Government's interpretation of the Convention': Sanchez-Llamas, supra note 57, Breyer J., dissenting, at 15.
107. BGH, Judgment of 7 Nov. 2001, supra note 54;
108. BGH, Judgment of 29 Jan. 2003, supra note 56. The court, however, then proceeded in each case to hold that the rights would not be meant to protect the individual from statements he made to the police.
109. Sanchez-Llamas, supra note 57, at 12.
110. Ibid., Opinion of the Court, at 8-15.
111. Cf., ibid., Breyer J., dissenting, at 30.
112. Vienna Convention Decision, supra note 13, at paras 68-69.
113. Ibid., at para. 68.
114. Ibid., at paras 70-74.
115. For a quick overview of the organization of the BVerfG in English see http://www.bundesverfassungsgericht.de/en/organization/organization.html.
116. Two of the judges, DiFabio and Landau, are regarded as more conservative, while Hassemer could be seen as more 'progressive'. Judge Hassemer is also highly regarded as an expert in criminal law.
117. Ex parte Medellin, _ SW 3d _, 2006 WL 3302639 (Texas Crim. App. 2006).