Consular Notification and Assistance:

A Guide for Defense Attorneys


Prepared by Mark Warren, Human Rights Research


Obtaining Consular Assistance for Foreign Nationals Facing the Death Penalty

The Role of the Consul in Criminal Cases

Domestic Litigation of Article 36 Claims

Understanding the Sanchez-Llamas Decision

International Court Decisions

Enforcing Avena: the Medellin Case

Grounds for Relief: Case Studies

Article 36 Precedents and Bibliography

Additional Resources

Excerpts from the Vienna Convention on Consular Relations

Mandatory Notification Countries in the USA (Bilateral Agreements)


Fifteenth Edition, August 2018.
This document may be freely circulated, or cited with attribution. The author welcomes your comments and suggestions

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Obtaining Consular Assistance for Foreign Nationals Facing the Death Penalty

Suggestions for attorneys in the USA


Enlisting the Consulate as an Ally: a 10-step strategy

Of the approximately 120 foreign nationals known to be under sentence of death in the USA, the vast majority were never notified by the arresting authorities of their right to seek assistance from their consulate.

That right is enshrined in Article 36 of the Vienna Convention on Consular Relations, a multilateral treaty ratified unconditionally by the USA in 1969 (21 U.S.T. 77, T.I.A.S. 6820). Under its provisions, local authorities must promptly inform detained or arrested foreign nationals of their right to communicate with their consulate. At the request of the national, authorities must contact the consulate and permit consular communication and access. Consuls are empowered to arrange for their nationals' legal representation and to provide other services. Local laws and regulations must give full effect to these rights. (See Appendix 1 for the full text).

These breaches of a ratified treaty designed to protect the legal and human rights of foreign detainees may provide a variety of potential grounds for appeal and for pre-trial motions. They also serve as compelling justification for attorneys to contact the consular representatives of a foreign client and to seek material and legal assistance from the home government. Protecting and assisting nationals who have run afoul of the law while abroad is a primary function of consular officials. Most nations' consulates are thus very sensitive to Article 36 breaches, particularly when their citizen is then sentenced to death.  Approaching a foreign client's consulate and enlisting their support should be viewed by attorneys as an essential element in the effective defense of a foreign client, as should vigorously litigating Vienna Convention violations. What follows are step-by-step suggestions for obtaining this crucial assistance, and for raising legal claims where consular rights were violated.

The consulates of most nations strive to provide at least basic consular protections to their nationals detained abroad. However, the scope of assistance that you and your client will receive may vary, depending on the severity of the offense, the resources available to the local consular post, the priority placed by the home government on consular services and even the degree of interest of the local consul. Nonetheless, in all reported capital cases to date, contacted consulates have provided meaningful assistance of varying kinds to US defense counsel. Even if your research indicates that your client was promptly informed of her consular rights upon arrest and declined consular notification, you should still try to obtain the client’s consent to contact the consulate and discuss possible assistance.

1) Familiarize yourself with the provisions of Article 36 and consider its potential ramifications in your client's case. (See below: The Role of the Consul in Criminal Cases).  Review the case file (particularly arrest reports) to ascertain if there was an Article 36 violation, i.e., that the arresting authorities knew or had reason to believe that the detainee was a foreigner but failed to notify your client of the right to consular communication and notification. Please note that communications between law enforcement agencies (i.e. requesting criminal records from the home jurisdiction) do not meet the notification requirements of Article 36.

2) Discuss the advantages of consular assistance with your client, and obtain their consent to contact the consulate. Not all foreign nationals would wish their consulates to be contacted (political exiles, for example), and you should carefully consider any legitimate objections to consular contact. If your client refuses to consent but you believe that their objections are not reasonable (e.g., cases involving impaired mental capacity), use your own best judgment on whether the potential benefits of consular contact outweigh any potential concerns.  For a full discussion of counsel’s ethical duty to seek consular assistance for a foreign client in a capital case, see section 10. 6 of the ABA Guidelines on the Appointment of Counsel in Death Penalty Cases.

3) Contact the nearest consulate of your client's home government. If there is no consulate nearby, contact the nation's embassy in Washington.  (The State Department web site provides a full list of foreign embassies and consulates in the USA, at: ).  In either case, you'll want to speak with the consular official in charge of providing assistance to detained or imprisoned nationals. Send an introductory letter summarizing your client's nationality, the grave predicament of the defendant and, if applicable, the Vienna Convention violation. At this point, your main purpose should be to acquaint the consulate with the situation and to establish a dialogue on how you might work together on your client's behalf. Ask to meet with a consular representative to discuss the case.

4) When establishing contact, there are two requests for assistance you may make that most consulates will feel duty-bound to comply with.  First of all, you may ask the consulate to verify your client’s nationality.  Second, a consular representative should immediately arrange to visit or communicate with the national.  Both are general consular functions under the Vienna Convention.

In the aftermath of September 11th, you should advise the consulate of the risk that prison authorities may be monitoring conversations between consular officers and detained foreigners. To be on the safe side, consular officers should be reminded not to discuss case specifics or other sensitive information with your client.

5) At all stages, the consulate should regularly visit or communicate with your client and should lodge formal complaints over any irregularity in the prisoner's treatment.  A general listing of the forms of consular assistance available to detained nationals is contained in Article 5 of the VCCR (see appendix 1). Of course, some nations are more active than others in representing the rights of arrested nationals, just as some consulates have more resources available to devote to consular visits or other forms of assistance.

In some cases, jail or prison authorities have refused to allow consular access to prisoners or have obstructed communications between the consulate and the detainee.  The State Department's Bureau of Consular Affairs will undertake to remedy consular access problems, at the request of the affected diplomatic post.  To register a complaint regarding consular notification or access, the consulate should contact the Office of Public Affairs, Outreach Liaison, (202) 647-2606. N.B. The US Government's position is that the treaty confers no judicially-enforceable rights on individual nationals and that no judicial remedies are available for its violation--so the consulate should not discuss the case circumstances or legal strategies when registering a complaint.

6) If the consulate is receptive to their national’s plight and expresses a willingness to help the defense further, introduce other requests for assistance that would be most beneficial to the case.  For example, the consulate may be able to facilitate the more rapid recovery of crucial documents available only in your client’s country of origin, such as birth certificates, criminal, medical, military or educational records.  Depending on the case circumstances and the stage of proceedings, other assistance can include: interceding to support a proposed plea agreement; attending court proceedings; facilitating a mitigation investigation in the home country; supporting legal motions; or help in retaining qualified interpreters and expert witnesses.  Timely consular involvement in prosecutorial discretion can be especially crucial: in many cases, prosecutors have decided to waive the death penalty after well-timed consular interventions (and the implicit prospect of facing a defense augmented by the resources of a foreign government at trial and beyond).

You should be aware that not all consulates will be familiar with U.S. death penalty procedures or the potential scope and benefit of consular assistance in these cases. It may therefore be necessary for you to explain these procedures and the significance of consular involvement at different stages of a case. A comprehensive document on consular involvement in capital cases can be downloaded from the website of the International Justice Project:

Equal Protection : Consular Assistance & Criminal Justice Procedures in the USA

Now also available in Spanish, as Proteccion sin Distincion : La Ayuda Consular y los Procesos de Justicia Penal en los Estados Unidos de America

Intended primarily for consuls in the USA, the 60-page text includes examples of effective consular interventions, an overview of the U.S. death penalty process and advice for consuls working with defense teams.  A 16-page summary of basic information on the role of consular assistance is also available:

Consular Notification and Assistance: A Resource Guide for Consuls

7)  Despite recent efforts by the State Department to improve domestic compliance, violations of Article 36 requirements are still commonplace.  In all cases where there has been a violation of Article 36 obligations, document when and why the police knew or had reason to believe that the detainee was a foreign national.  Begin preparing motions to introduce this claim in pre-trial proceedings, or on appeal. (Contact me for reference motions).  Obtain an affidavit from your client stating that a) they did not know about their consular rights, b) were not informed of their right to have the consulate notified and c) they would have invoked that right immediately, had they been informed.  If the affidavit is supporting a more comprehensive motion to suppress custodial statements (e.g., on Miranda grounds), it should also state that your client would have refused to answer any further questions pending consultation with their consulate, had they been informed of the right to consular notification. (See Understanding Sanchez-Llamas below, for more on VCCR violations and suppression claims).

Confirm with the consulate whether there is a bilateral consular convention between the USA and the home government that could also be invoked.  The United States has bilateral consular agreements with some 52 nations; unlike Article 36, these agreements generally require that the consulate itself must be directly notified of the detention within a specified time period (typically 72 hours), irrespective of the national's wishes.  These agreements place an additional onus on the local authorities beyond those in the Vienna Convention and violations may provide legitimate grounds for direct legal intervention by the home government, in order to vindicate its sovereign treaty rights. (See Appendix II for a list of ‘mandatory notification’ countries).

In any case where there has been a violation of Article 36 or a bilateral notification requirement, you may request that a diplomatic note be sent to the US State Department from the embassy, formally protesting the alleged treaty breach.  The note should request a full investigation into the allegation.  Diplomatic protocol requires that the State Department relay the request to the relevant state Attorney General's office for investigation and response.  A substantive response to the note will take at least a month and probably longer.

The probable response from state officials to your claim will be to admit that arresting authorities failed to notify your client of his consular rights but that, for a variety of reasons, the breach of the treaty constitutes harmless error. Consular officials will likely perceive this response as unacceptable.  Now may be the ideal time to ask the consulate to file an amicus curiae brief to support the amended habeas petition (or similar interventions in pre-trial or appellate proceedings). The brief should outline the forms of assistance that the consulate routinely provides to its detained nationals facing serious charges, address the specific circumstances of the case, and argue that this breach of international law undermined the fairness of the proceedings.

In cases where the consulate was effectively prevented from assisting its national for an extended period of time, it may also help to obtain an affidavit from the consulate attesting that they were not notified of the arrest, outlining the standard assistance they provide when they are informed of the arrest of one of their nationals on serious charges, and the case-specific forms of assistance that would have been provided to your client.  Establishing that the consulate would have responded promptly with valuable assistance is an essential element in meeting the standards of prejudice that courts are increasingly applying to Article 36 claims.  In all cases where you are arguing prejudice arising from the treaty violation, it is essential to demonstrate specific and individualized harm.

If the consulate agrees to intervene in the proceedings but does not have a lawyer on retainer, you may wish to recommend law firms to prepare the brief.  They should, of course, be familiar with treaty law as well as capital litigation in your jurisdiction.  This stage is a "point of no return" in terms of consular involvement; a foreign government may be reluctant to intervene in a domestic court case and may require some patient persuasion on your part. A lack of resources should not deter a consulate from intervening in the proceedings; some law firms may agree to represent a consulate pro bono in order to add a foreign government to their client list.

U.S. case law provides an additional and powerful incentive for seeking direct interventions by the consulate. Under existing precedents, when a nation protests a treaty violation that harms its citizens, the affected national gains derivative standing to seek judicial redress for the violation (See, e.g., United States v. Verdugo-Urquidez, 939 F.2d 1341, 1356 (9th Cir. 1991)).  Formal diplomatic protests and legal interventions by the home government may thus assist you in circumventing the thorny question of whether Article 36 confers a private right of action on individual nationals.

8) Other forms of consular support may also be possible, depending on the case.  For example, you could request a consular representative to testify at an evidentiary hearing on this issue, describing the forms of assistance that would have been provided (consular officers have diplomatic immunity and consular privilege, so obtaining the consent of the home government to their appearance is crucial).  The consulate might also agree to pay the travel expenses of your client's friends or family so they may testify at a mitigation hearing, or assist in obtaining visas for foreign witnesses.  In the last stages of appeal, the Consul General might request a personal meeting with the state Governor to discuss clemency, testify at a clemency hearing regarding the significance of timely consular assistance, or arrange for a formal representation from a senior government official requesting clemency. 

9) If your first contact or subsequent relations with the consulate are unsatisfactory, don't give up. Send a copy of your introductory letter to the home government's Foreign Affairs Minister (names/addresses available on the Internet). Do not criticize the consulate in your correspondence with the home government; should the government decide to intervene in the case, you'll still need to work with the local consular officials.  When all else fails, you may wish to consider publicity or lobbying in the home country to persuade a reluctant government to take action.  However, this step should only be taken after consultation with well-informed and reliable people 'on the ground' in the home country.  For instance, Amnesty International maintains national Sections in some 55 countries worldwide. Many AI Sections have press officers and campaign coordinators who can advise you on the local opportunities for media outreach, government lobbying, approaches to domestic bar associations, etc.  For information on potential Amnesty International contacts in the home country, consult with the AI USA Death Penalty Program Director in Washington (tel: (202) 544-0200).

10) A final word of advice: diplomats have lower metabolisms than death penalty attorneys; they're accustomed to moving slowly and deliberately.  Be patient and tactful in all your dealings with the consulate: make suggestions, not demands. It may be frustrating, but the yield will be greater if you employ gentle but persistent pressure.  Be aware of the political realities between the United States and the home government: some consulates may prefer to keep their interventions low-key and will strive to avoid publicity, while others may use your client's case to further their own nation's agenda.  In either situation, let the consulate retain a sense of control over their participation in the case.  Always keep them fully informed of any relevant legal developments, and always show your appreciation for any assistance that they decide to provide. Good luck!

For a more comprehensive look at the role of consular assistance in capital defense, see:

Bridging the Gap: Effective Representation of Foreign Nationals in US Criminal Cases


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The Role of the Consul in Criminal Cases: An Informal Summary

Assisting its nationals in distress is one of the defining aspects of the consular service of every nation.  Few nationals require that assistance more urgently than those who are arrested and face prosecution in a foreign country.  Arrested foreigners are truly "strangers in a strange land", confronted by an unfamiliar legal system, far from home and at the mercy of the local authorities.

International law has long recognized that consuls have the right to visit, communicate with and assist their nationals who are jailed or imprisoned abroad.  Indeed, the concept that all states are entitled to protect the interests of their nationals abroad is a basic principle of international law and diplomatic practice.

While consular assistance for detained nationals can take many forms, each intervention serves three basic purposes.  The first is humanitarian : consuls provide detainees with access to the outside world (e.g. communicating with family and friends) and ensure that they have the basic necessities of life (e.g., in some countries, prisons do not provide adequate food or medicine).

The second purpose is protective: consular visits help to ensure that foreign nationals are not mistreated in custody. In many countries, unfortunately, timely consular assistance is all that stands between foreign prisoners and ill-treatment, torture, or even death in custody.

The final purpose is legal assistance: consuls advise their nationals on their rights and the basic procedures under the local legal system, provide them with lists of local lawyers to defend them and take other appropriate steps to ensure that their nationals receive fair and equal treatment under the laws of the arresting state.

The most essential first function of the consul in this context is often to explain to the detainee what their legal rights are and the differences between the U.S. criminal justice system and that of the home country--in terms that the foreign national will understand and act on appropriately.

Beyond that function as a cultural and conceptual interpreter, the consul also ensures that the detainee has all the means necessary to mount an effective defense.  Even in capital cases where a foreign national is already familiar with U.S. criminal justice procedures, the consulate still provides an indispensable function.  For example, crucial mitigating evidence may exist only in the home country but may be beyond the reach of defense counsel.  In other words, the protective and supportive function of the consulate does not end after the arrest and arraignment of their national--it continues with unabated significance throughout the trial, sentencing and appellate review.

In a capital case, common forms of consular assistance include:

--ensuring that detainees understand their legal rights and local court procedures;

--monitoring the treatment of the detainee in custody and protesting ill-treatment;

--contacting friends and family in the home country;

--attending court hearings;

--ensuring that the detainee and the defense attorney are in close contact;

--resolving problems that may arise between the lawyer and the national;

--explaining the benefits of a plea agreement to the defendant

--interceding with prosecutors to avoid excessive punishment;

--notarizing and conveying documents from the home country (e.g. medical, educational, military records);

--petitioning for clemency.

Advanced forms of consular assistance can include:

--assisting mitigation investigations in the home country;

--bringing mitigation witnesses to testify;

--if necessary, obtaining expert witnesses or finding additional counsel for the accused;

--retaining an attorney to represent the consular interest;

--submitting amicus briefs or motions based on any violations of international law;

--participating directly or indirectly in appellate review;

--any other assistance necessary to ensure that the national receives fair, equal and humane treatment throughout the trial proceedings and after imprisonment.



Introduction: a universal standard

The Vienna Convention on Consular Relations (VCCR) is a multilateral treaty that regulates the rights, privileges and duties of consulates and consular staff worldwide.  Ratified by some 170 countries, the VCCR is the cornerstone of modern consular law.

The USA unconditionally ratified the VCCR in 1969, whereupon it became binding on all local, state and federal authorities under the Supremacy Clause of the US Constitution. The USA also simultaneously ratified the VCCR Optional Protocol on the Compulsory Settlement of Disputes, which permits any signatory party to seek a binding judgment from the International Court of Justice for disputes involving the interpretation or application  of the Convention. Federal regulations were amended to comply with the provisions of Article 36, notably INS guidelines (8 C.F.R. §236.1(e)) and Justice Department  arrest procedures (28 C.F.R. §50.5(a)).

There are some 120 reported foreign nationals under sentence of death in the USA representing over 30 nationalities, including citizens of Mexico, Jamaica, Cuba, Colombia, Germany, El Salvador, Lebanon, Iran, Cambodia and Viet Nam.  In many of these cases, local authorities failed to notify the defendants of their consular rights “without delay”, in violation of the VCCR.  Despite periodic State Department bulletins and intense outreach efforts, violations of Article 36 are still common occurrences.

The State Department has repeatedly affirmed that it views Article 36 notifications of detained Americans abroad to be a matter of the highest importance and has vigorously protested foreign breaches of the Vienna Convention. The Department rightly insists that Americans detained in any other country must be informed of their consular rights promptly: unwarranted delays in consular notification or access are mandatory grounds for protests by U.S. consulates.  Indeed, the USA was the first nation to exercise the dispute settlement mechanism of the VCCR Optional Protocol, by bringing an action against Iran at the International Court of Justice for the Tehran hostage-taking incident in 1979.

Early cases in the USA

Most early litigation citing the VCCR involved immigration procedures and illegal aliens. See, e.g., United States v. Rangel-Gonzales, 617 F.2d 529 (1980) (dismissing indictment for illegal re-entry for failure to comply with the INS regulation implementing Article 36 obligations). The Ninth Circuit ruled that violations of Article 36 may be grounds for appealing and reversing INS deportation orders and construed the INS regulations implementing Article 36 notification, also finding that the right conferred under the treaty is a personal one.  Based on United States v. Calderon-Medina (591 F.2d 529 (9th Cir. 1979), the Rangel-Gonzales Court employed a three-part prejudice test under which aliens must show that they were not aware of their consular rights, would have sought consular assistance and that consular contact would have been of benefit to the national’s defense (i.e., the violation prejudiced their interests protected by the regulation and the treaty).

Although the Vienna Convention has been the law of the land in the USA for three decades, the criminal case record on Article 36 claims prior to 1992 is remarkably scant.  However, by 1997 a number of late-stage death penalty appeals were pending on this issue. Generally speaking, relief was denied in these cases on the grounds that the claim was procedurally defaulted or that the petitioner had failed to demonstrate prejudice.  The first U.S. death penalty cases to fully litigate a breach of the Vienna Convention was that of Joseph Stanley Faulder, a Canadian on death row in Texas.  In his state habeas corpus petition, Faulder argued that the failure of Texas authorities to notify him of his consular rights violated his right to compulsory process and due process under the Fifth, Sixth and Fourteenth Amendments. The Fifth Circuit later denied Faulder's claim, on the grounds that Texas' breach of Article 36 did not materially harm the defense. (Faulder v. Johnson, 81 F.3d 515 (5th Cir.1996)).

Both the Canadian and Mexican governments have responded vigorously to alleged Article 36 violations in the USA. For example, in the Faulder case, Canadian authorities were unaware of his arrest and death sentence for 15 years. In 1992, when Faulder was first facing execution, the Canadian government responded by appealing for clemency to the Governor of Texas and through diplomatic notes to the State Department requesting an investigation into Texas' failure to comply with Article 36.  After Texas officials admitted a VCCR violation in Faulder's arrest (but dismissed it as 'harmless error'), the Canadian government filed a series of amicus curiae brief with the courts. The briefs outlined the significance of the VCCR, describes the consular assistance provided to Canadian nationals and concluded that Faulder "was deprived of a right under international law that may have prejudiced his ability to receive a fair trial and sentencing hearing". Following dismissal by the Fifth Circuit, Canada filed a new and more comprehensive amicus brief with the Texas courts and the US Supreme Court, but to no avail: Faulder was executed on 17 June, 1999.  Direct interventions by the US Secretary of State failed to persuade the Texas Board of Pardons and Paroles to conduct any meaningful review of the effects of the VCCR violation on the fairness of Faulder’s death sentence.

Mexico has undertaken extensive and vigorous litigation of consular rights issues in domestic and international courts (see International Court Decisions, below). The Mexican Foreign Ministry has established the Mexican Capital Legal Assistance Program, whereby experienced death penalty attorneys in the United States provide assistance to defense teams representing Mexican nationals at any stage of a capital case. Mexican consular officials have also been instructed to intervene wherever possible at the pre-trial stage, to forestall the seeking of death sentences by prosecutors--with some notable success in many recent cases, particularly in those jurisdictions where prosecutors must consider a notice of mitigating factors before making a decision on capital charges.

The Republic of Paraguay took assertive legal action to defend the interests of one of its citizens, Angel Francisco Breard, who faced execution in Virginia. Paraguay filed a civil suit against the Governor of Virginia and other state officials (Paraguay v. Allen, Governor), seeking relief from their continuing violations of Article 36 and an 1859 treaty with Paraguay. In January/98, the Fourth Circuit dismissed Breard's habeas petition as "procedurally defaulted", as well as Paraguay's supporting civil suit.  Paraguay appealed the dismissal to the US Supreme Court. In support of Paraguay's petition for certiorari, 4 nations filed an amicus brief stressing the importance of consular assistance under Article 36 and the necessity of a domestic judicial remedy for violations of the treaty within the USA.

In an unprecedented move, Paraguay then petitioned the International Court of Justice (under the terms of the VCCR Optional Protocol) for a binding ruling on the violation of its national's consular rights. As a preliminary step, the ICJ issued a 'provisional measures order', a kind of preliminary injunction requiring the United States to halt Breard's execution pending the resolution of Paraguay’s claims. The order also placed the subject matter of the dispute between Paraguay and the USA under the compulsory jurisdiction of the International Court. The decision marked the first time that the ICJ had intervened to stop an execution anywhere in the world, as well as the first order from the Court against the USA based on the provisions of the Vienna Convention.

Despite these interventions, the US Supreme Court dismissed all appeals, finding that Breard's habeas claim was procedurally defaulted and that Paraguay was prohibited by the Eleventh Amendment from suing Virginia for non-compliance with the treaty.  Breard was executed on April 14/98.  Significantly, the Supreme Court decision does not preclude consideration of individual habeas claims on the basis of the treaty, assuming that they are timely filed and can raise a strong claim of actual prejudice.  Breard v. Greene, 523 U.S. 371, (1998) (per curiam).

In its last-minute per curiam order, a majority of the Supreme Court rejected the arguments raised by Paraguay and its national as “plainly incorrect.” Acknowledging  that “we should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such,” the Supreme Court opined 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 the treaty in that State.”   Because of this alleged rule, “[b]y not asserting his Vienna Convention claim in state court, Breard failed to exercise his rights under the Vienna Convention in conformity with the laws of the United States and the Commonwealth of Virginia. Having failed to do so, he cannot raise a claim of violation of those rights now on federal habeas review.”   The Court inferred that domestic procedural default rules were consistent with the “full effect” requirements of Article 36(2).   Conceding that the Vienna Convention “arguably confers on an individual the right to consular assistance following arrest,”  and that the VCCR stands on the same footing as an act of Congress, the Court held that federal legislation adopted subsequent to the treaty prohibited an evidentiary hearing on a procedurally defaulted claim.   The last-in-time rule  “prevents Breard from establishing that the violation of his Vienna Convention rights prejudiced him.”  Treaties “are recognized by our Constitution as the supreme law of the land,” but “that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply.”   The Court nonetheless applied a prejudice analysis to conclude that the treaty violation constituted harmless error, asserting that “it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial . . . In this case, no such showing could even arguably be made.”

Domestic Court Decisions After Breard

Article 36 claims continued to produce a wide range of judicial responses, from outright rejection of the issue as non-justiciable to relief on this basis alone. Without a definitive Supreme Court ruling on the legal scope of any individual rights that may be conferred under the treaty, the lower courts continued to generate opinions based as much on judicial ideology as on case law.

Although an opinion arising from a denial of Supreme Court review does not constitute binding precedent under U.S. law,  most domestic courts have since relied on Breard to forbid relief to death-sentenced foreign nationals raising untimely consular rights claims.  Even after the ICJ clarified in the LaGrand case that its provisional measures are indeed legally binding on the United States and expressly held that procedural default may not prevent domestic review of an Article 36 claim (see below), U.S. courts continued to defer to the Supreme Court’s opinion.   Where these claims were not subject to procedural default, reviewing courts have typically found instead that the treaty breach constituted harmless error, even though no consistent prejudice standard had been adopted for the lower courts to apply.   Some appellate courts went even further, taking the position that the VCCR confers no legally enforceable rights on individuals and that such claims were not justiciable.

The most consistent trend was a recognition (sometimes grudging) that violations of the treaty may be cited by individual plaintiffs and give rise to judicial review by the US courts.  Far less clear is the question of a remedy for the violation of consular information rights in a criminal case.  Several circuit courts ruled that exclusion was not an available remedy, for example, while at the same time declining to rule categorically on the nature of any individual rights which may be conferred under Article 36.  See, e.g., United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000); United States v. Li,  206 F.3d 56, 61 (1st Cir. 2000).

Both of these circuit court rulings produced strong dissenting opinions. For example Chief Justice Torruella of the First Circuit reached the conclusion that the treaty is part of the municipal law of the United States, clearly conferring legal rights on individuals.  The violations of those rights may give rise to a judicial remedy, according to the Chief Justice, once it has been determined that the defendant was harmed by the violation.  Responding to the majority's contention that the language of the treaty provisions is "ambiguous", the Chief Justice wrote:

I have some difficulty envisioning how it is possible to frame language that more unequivocally establishes that the protections of Article 36(1)(b) belong to the individual national, and that the failure to promptly notify him/her of these rights constitutes a violation of these entitlements by the detaining authority. I must also confess to no small amount of bafflement, not to say disappointment, with the reluctance demonstrated by my colleagues in the majority, as well as other courts, in refusing to provide a forum for the vindication of what amounts to a confessed and flagrant violation of our national law by the Government. I would ask, what arena is more appropriate than the courts of the United States, for an individual to seek the validation of his/her rights against Governmental transgression of its own laws and regulations?. . . I am at a loss to find rhyme or reason in the majority's conclusions.

The dissenting opinion is well worth reviewing in its entirety; it includes a detailed and well-researched analysis of the drafting history of Article 36.  Most significantly, it incorporates new material supporting the contention that the US government both understood and supported the inclusion of individual rights in Article 36 when the VCCR was drafted.

One state court ruling represents the other end of the spectrum.  In July of 1999, a trial court judge in Delaware suppressed the statement of a Guatemalan national facing a murder charge, based solely on a violation of Article 36 and without requiring any further demonstration of prejudice to the defendant.  State of Delaware v. David Reyes, 740 A.2d 7, 14 (Del. 1999) appears to be the first case of its kind.  It has survived appellate review, in the sense that the Delaware Supreme Court declined to hear the case on appeal.  Since it was based largely on the Ninth Circuit panel decision in Lombera-Camorlinga holding that suppression was an available remedy for a VCCR violation (a ruling subsequently reversed en banc), Delaware courts since then have declined to follow the Reyes precedent.


Understanding the Sanchez-Llamas Decision


As knowledge of Article 36 obligations slowly spread throughout the U.S. legal community, many defendants raised timely challenges to its violation and sought remedies such as suppression of custodial statements or dismissals of indictments.  Those claims were usually denied, although courts recognizing an individual treaty right were sometimes receptive to remedies such as civil suits or discretionary suppression.   The common thread connecting nearly all of the decisions anticipating potential judicial remedies is the necessity of demonstrating specific and individualized prejudice arising from the treaty violation.  But after a decade of intense litigation, the lower courts remained deeply divided over the threshold issues of individual rights and the availability of judicial remedies.  Meanwhile, both Germany and Mexico obtained binding judgments from the ICJ that interpreted and applied Article 36 in a manner squarely at odds with the Supreme Court’s hasty per curiam denial in Breard.  (The ICJ decisions in LaGrand and Avena are discussed separately, below).


The most recent substantive decision by the U.S. Supreme Court on Article 36 claims has great significance for the future litigation of the issue, both in trial proceedings and on appeal.  In Sanchez Llamas v. Oregon, the Court combined the cases of two foreign nationals who had unsuccessfully raised Article 36 claims in state court proceedings [1] and granted review to address three unanswered questions:


“First, does Article 36 create rights that defendants may invoke against the detaining authorities in a criminal trial or in a postconviction proceeding? Second, does a violation of Article 36 require suppression of a defendant's statements to police? Third, may a State, in a postconviction proceeding, treat a defendant's Article 36 claim as defaulted because he failed to raise the claim at trial?” [2]


A bare majority of the Court bypassed the first and arguably most basic issue, assuming without deciding that Article 36 does confer individually-enforceable rights, but finding it “unnecessary to resolve the question” because the petitioners were not entitled to the requested relief. [3] Since “neither the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression” on these grounds, the exclusion of evidence is never an available remedy for an Article 36 violation per se.  Although the Court should give “respectful consideration” to the post-Breard holdings of the International Court of Justice on procedural default and Article 36 claims, “nothing in the ICJ’s structure or purpose suggests that its interpretations were intended to be binding on U. S. courts” and the ICJ interpretation “sweeps too broadly, for it reads the ‘full effect’ proviso in a way that leaves little room for the clear instruction in Article 36(2) that Article 36 rights ‘be exercised in conformity with the laws . . . of the receiving State.’”  Accordingly, “a State may apply its regular procedural default rules to Convention claims.” [4]


However, the majority noted that an Article 36 violation can be relevant to determining the admissibility of a defendant’s statements, and that other more limited pre-trial remedies could be available for the violation standing alone:


Finally, suppression is not the only means of vindicating Vienna Convention rights. A defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police. If he raises an Article 36 violation at trial, a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance. [5]


Brief though it is, this description of potential remedies has potentially far-ranging implications.  First, any violation of Article 36 obligations should now be included in the totality of the circumstances when assessing the involuntariness of custodial statements and in determining whether a Miranda waiver leading to those statements was knowing, intelligent and voluntary.  Second, in some circumstances, the treaty obligation to advise the detainee “without delay” must attach prior to or during interrogation; if the consular rights advisement could always be delayed until after a statement was obtained, there would never be a viable “Article 36 claim” to introduce “as part of a broader challenge to the voluntariness” of those statements.  


Furthermore, the Court has conceded that the defendant has independent standing to raise the claim for the purpose of securing benefits, strongly suggesting the existence of an individual right and calling into question precedent cases to the contrary. [6]  Where a trial court arbitrarily refuses to grant a reasonable accommodation or trial counsel fails to raise a known violation, those issues could likely now be considered as grounds for an appeal.  Nor does Sanchez-Llamas absolutely preclude state court habeas relief for already-defaulted Article 36 claims; although a state court “may apply” its procedural default rules, nothing in the decision requires it to do so.  Many state courts of final appeal possess the discretionary authority to set aside procedural barriers where the interests of fundamental justice so require, and might be persuaded to do so if presented with particularly egregious consequences arising from a denial of consular rights. [7] Finally, the holding on procedural default and the reference to “appropriate accommodations” that trial courts may provide places the onus squarely on trial counsel to investigate, develop and preserve Article 36 violations.


Perhaps most importantly, the Sanchez-Llamas Court left for another day a decision on whether individual rights are conferred under Article 36, along with all the legal consequences implicit in any such determination. [8]  Until such time as the Supreme Court rules definitely on the scope of individual rights conferred under the treaty and the full range of remedies available for its violation, important aspects of this issue must be treated as unresolved legal questions.  And, although there is language in Sanchez-Llamas indicating that the relevant ICJ decisions are not directly binding on the domestic courts in cases the ICJ did not adjudicate, [9] the weight to be attached to Article 36 interpretations by the ICJ that do not conflict with domestic law (unlike procedural default) remains an unsettled question. The “respectful consideration” to be accorded to the ICJ indicates that its interpretations of other still-unresolved aspects of Article 36 claims should always be presented as persuasive authority.  To summarize, the pressing legal questions still to be answered include the following:







Applying Sanchez-Llamas to Pre-trial Claims


Suppression Motions


Two factors should be kept in mind when developing suppression claims that incorporate Article 36 violations.  First, after Sanchez-Llamas, suppression of statements will not be granted for an Article 36 violation standing alone.  It is essential to develop other grounds for suppression to which the treaty breach can then be colorably connected.  Second, international and domestic authority holds that the police are not required to suspend an interrogation pending notification of the consulate, nor need they contact the consulate immediately after the detainee requests notification. [10] However, advisement of the right must take place as soon as the police know or suspect foreign nationality, which will often be prior to interrogation or during its earliest stages. [11] The central element in this component of the suppression motion must therefore be a demonstration that simply advising the suspect of his consular rights at the required time would have prompted him to request consular notification and to invoke his Fifth or Sixth Amendment rights while awaiting the consulate’s assistance. 


In cases where the detention prior to the incriminating statement was clearly long enough to have triggered the obligation to notify the consulate, counsel might also seek to establish that consular notification was readily achievable, resulting in a prompt response that would also have addressed the identified involuntariness factors (such as the coercive effects of multiple interrogations over several days).


An Article 36 claim should be relevant to the involuntariness analysis whenever:


  1. the foreign national was in some form of detention at the time that the incriminating statement was made;
  2. there are cogent grounds for suppression apart from the Article 36 violation;
  3. the interrogating police knew or had reason to suspect that the detainee was a foreign national prior to obtaining the incriminating statement;
  4. the detainee was not advised of the right to consular notification and would have exercised that right;
  5. the detainee would have refused to answer any further questions upon invoking the right to consular notification.


 In cases of prolonged detention prior to securing the statement, additional factors may support involuntariness:


  1. the interrogation prior to the statement was of sufficient duration to have allowed the consulate to respond and communicate with its national;
  2. the consulate would have responded promptly, ensuring that the detainee understood her rights and/or arranging for the immediate presence of an attorney;
  3. the violation was prejudicial, in the sense that the absence of consular notification can be plausibly linked to the suspect’s statement and that the statement itself was a major element in the subsequent conviction or sentence.



Securing the “benefits of consular assistance”


It is not uncommon for awareness of the treaty violation and its implications to surface at a later stage in the trial proceedings.  Assessing the potentially harmful effects of the absence of consular assistance should thus span the entire time interval between the first knowledge by the arresting authorities of probable foreign nationality and the consulate’s eventual awareness of the detention.  Depending on the stage of the proceedings and the supporting facts, counsel should thus file or supplement motions addressing a range of issues related to the delay in consular notification.  Those motions include:







As with all Article 36 claims, it is important to demonstrate case-specific prejudice and to argue that the denial of the motion would be harmful to the defendant’s right to a fair trial.  Counsel should formally object if the motion is denied, to preserve the issue on the record for potential appellate review.


Seeking a continuance or rehearing is not the only way to interpret the “appropriate accommodations” language of Sanchez-Llamas.  For example, even where suppression is ultimately denied, the defense could request a jury instruction incorporating the Article 36 violation (and the potential benefits of timely consular assistance) into the jury’s determination of involuntariness.  Regardless of the case circumstances, however, counsel should in all cases acquaint the trial court with the Article 36 violations and preserve the claim by requesting the court to apply the general remedy recognized by Sanchez-Llamas.


[1]  Mexican national Moises Sanchez-Llamas was convicted of the attempted murder of a police officer, following a drunken altercation with police in Oregon.  He unsuccessfully raised the treaty violation in a pre-trial motion to suppress; after an 11-hour interrogation, he gave a confession that included factual inaccuracies regarding the use of a second weapon. The transcript of his interrogation also established that he understood his Miranda rights as meaning that “it would be better if I told the truth and everything.” The Oregon courts denied relief on the grounds that the treaty does not create individual legal rights and suppression was thus not an available remedy.  Honduran national Mario Bustillo did not object to the treaty violation at trial or on direct appeal, first raising the claim in his state habeas corpus petition challenging the validity of his conviction; the Virginia  courts found that his treaty claim was procedurally defaulted. His submission to the Supreme Court included evidence that another person subsequently confessed to the murder for which Bustillo was convicted, after the Honduran Consulate assisted habeas counsel in locating that individual in Honduras. Bustillo had raised a defense of mistaken identity at trial, but trial counsel was unable to locate the other suspect. In both cases, police were aware of the nationality of the defendants but failed to advise them of their consular rights.


[2]  Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2674 (2006).


[3]  Sanchez-Llamas, 126 S.Ct. 2669, at 2677.  The four dissenting justices held that Article 36 does confer individual rights, but divided 3-1 on the availability of the requested remedies.


[4]  Id. at 2685-86.


[5]  Id. at 2682.


[6]  A number of courts had previously held that defendants lacked standing to raise an Article 36 violation because the VCCR creates no individual rights.  See, e.g., U.S. v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001); Maharaj v. State, 778 So. 2d 944 (Fla. 2000); State v. Martinez-Rodriguez, P.3d 267 (N.M. 2001); Kasi v. Virginia, 508 S.E.2d 57, 63-64 (Va. 1998); State v. Navarro, 659 N.W.2d 487 (Wisc. App. 2003).


[7]  See, e.g., Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App. 2002) (court exercised “its power to grant relief when an error complained of has resulted in a miscarriage of justice”, for a procedurally-defaulted claim of ineffective assistance stemming from trial counsel’s prejudicial failure to seek consular assistance).


[8]  It is a basic axiom of U.S. law that where there is a legal right, there must be a legal remedy for its violation. See generally Marbury v. Madison, 5 U.S. 137 (1803).


[9]  Sanchez-Llamas, 126 S.Ct. 2669, at 2685 (noting in dicta the subsequent U.S. withdrawal from the VCCR Optional Protocol and observing that “it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States.”).


[10]  See Sanchez-Llamas at 2688-89 (Ginsburg, J., concurring in the judgment) (citing the ICJ decision in Avena and State Department documents to support the observation that “Article 36 of the Vienna Convention does not require the arresting authority to contact the consular post instantly….[n]or does that Article demand that questioning await notice to, and a response from, consular officials.”). The State Department “would normally expect notification to consular officials to have been made within 24 hours, and certainly within 72 hours.”  Consular Notification and Access (Part 3: FAQs).


[11]  Consular advisement “without delay” gives rise to an obligation to advise a detained foreign national of his Article 36 rights “as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.” Avena and Other Mexican Nationals, 2004 I.C.J. 128, ¶ 88; United States v. Miranda, 65 F. Supp. 2d 1002, 1005 (D. Minn. 1999) (a period of two days constitutes a “delay” within the meaning of the Convention where there is no evidence that earlier advisement would not have been reasonably possible).


Post-conviction issues


In post-trial proceedings, counsel should continue to argue that giving full effect to the individual rights conferred under the treaty requires the courts to fashion suitable remedies for violations of those rights, whenever it can be demonstrated that the absence of timely consular notification was prejudicial.  In addition, the treaty violation should always be linked to other existing claims based on constitutional rights, such as arguing that trial counsel was ineffective for failing to seek the assistance of the Mexican consulate or for failing to accept offered consular assistance.  


Viewed purely in Fifth and Sixth Amendment terms, it is largely immaterial whether or not Article 36 confers individual and justiciable rights beyond the “benefits” already recognized in Sanchez-Llamas, since the issue is not one of treaty construction but instead the constitutional right to due process and to the effective assistance of counsel.  Determining the effectiveness of trial or appellate counsel is a case-specific analysis based on the application of prevailing professional norms, including the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases and other similar standards.  Representing a foreign national in capital proceedings requires recourse to additional criteria for determining effective representation, including the obligation to advise the client of the option of consular notification and to seek consular assistance on the defendant's behalf.


Both before and after Sanchez-Llamas, a number of courts have recognized that trial counsel’s failure to seek or accept available consular assistance on behalf of a foreign client or to raise an Article 36 violation at trial may constitute ineffective assistance. Where counsel’s unprofessional error is demonstrably prejudicial, relief is available—just as it would be for any other ineffectiveness claim.


For example, a panel of the Seventh Circuit recently determined unanimously that defense counsel’s failure to inform her client of these rights and to raise the violation with the trial court constitutes deficient performance.  See Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008) (finding trial counsel “was ineffective for failing to seek a remedy” for Article 36 violation and remanding non-capital habeas case for prejudice determination); id. (concluding after analysis that “Sanchez-Llamas appears to express a preference for subsuming Vienna Convention claims in broader constitutional attacks, rather than basing relief entirely on the treaty itself.”).  The court was careful to distinguish the IAC claim:


While Osagiede’s Sixth Amendment claim centers on his lawyer’s failure to raise an Article 36 violation, we must bear in mind that he is seeking relief under the Constitution—not under the Convention. See Sanchez-Llamas, 548 U.S. at 363-64 & n.3, 126 S. Ct. 2669 (Ginsburg, J., concurring) (noting that the defendant “did not include a Vienna-Convention-based, ineffective-assistance-of-counsel claim along with his direct Vienna Convention claim in his initial habeas petition”). . . .Because this is a Sixth Amendment ineffective assistance of counsel claim, it is controlled by Strickland and its familiar two-prong test. Whether rights and remedies are available under Article 36 of the Vienna Convention is relevant only to the extent that it helps prove or disprove one of these elements. . . . Further, we believe that there was a viable (and simple) remedy for the Article 36 violation alleged in this case: counsel could have informed Osagiede of his right to consular assistance and the violation could have been raised with the judge presiding at trial.


Even in the absence of an Article 36 violation, the failure of trial counsel to take advantage of readily-available consular resources can constitute prejudicially ineffective representation. See Marquez-Burrola v. State, 157 P.3d 749 (Okla. Crim. App. 2007) (modifying death sentence to life imprisonment for trial counsel’s failure to develop and present mitigating evidence despite pre-trial offers of consular assistance).

International Court Decisions

Consular Rights and Due Process: Advisory Opinion OC/16

Following the executions of two Mexican nationals in 1997, the State Department sent formal apologies to Mexico for the failure of local authorities to comply with Article 36.  Mexico then sought an advisory ruling from the Inter-American Court on Human Rights (of the Organization of American States) on the validity of these U.S. executions in the absence of the requisite Article 36 notifications. The Court released a landmark decision in October 1999, holding that the treaty confers essential rights on individuals and that an unremedied Article 36 violation would render a subsequent execution unlawful.  The full text in English of Advisory Opinion OC/16 is available at:


The LaGrand Case: Defining Consular Rights Under International Law

In response to the execution in Arizona of German nationals Karl and Walter LaGrand in 1999, the Republic of Germany brought an action against the USA at the International Court of Justice (Germany v. USA).  Unlike Paraguay (which withdrew its case following an apology from the USA), Germany then proceeded to obtain a binding judgment from the ICJ, which was issued on 27 June 2001.

In a complex and carefully worded decision, a virtually unanimous Court rejected the arguments advanced by the USA, choosing instead to safeguard the consular rights of all detained foreigners.  The ICJ also established the binding nature of its provisional measures orders (i.e. injunctions) when resolving treaty disputes, a decision with major implications for any future cases brought before it for a compulsory judgment.

The ICJ determined that the United States had violated every major provision of Article 36, thus incurring obligations both to Germany and to its detained nationals. The key elements of the ruling squarely contradict the legal position adopted by US authorities in the domestic courts, as well as the per curiam decision of the US Supreme Court in Breard v. Greene (523 U.S. 371 (1998)). The ICJ held that:

--Article 36 confers specific rights on individual foreign nationals;

--procedural default may not be applied to prevent the judicial consideration of the treaty violation in such cases;

--no prejudice need be demonstrated to establish the treaty violation and to trigger a potential remedy;

--the USA must provide “review and reconsideration” of convictions and sentences where Article 36 was violated. 

Germany had requested that the ICJ require the United States "to provide effective review of and remedies for criminal convictions impaired by the violation of the rights under Article 36", particularly in death penalty cases.  However, the Court stopped short of specifying the nature of the remedies required.  Instead, the Court held that the USA must provide "review and reconsideration" and that this obligation "can be carried out in various ways. The choice of means must be left to the United States."

In a separate declaration attached to the judgment, the ICJ President clarified that the Court's decision on review and reconsideration would apply to all foreign nationals whose consular rights were violated, regardless of nationality or circumstances. President Gullaume noted that the operative paragraph "does not address the position of nationals of other countries or that of individuals sentenced to penalties that are not of a severe nature.  However, in order to avoid any ambiguity, it should be made clear that there can be no question of applying an a contrario interpretation to this paragraph."

Despite the binding and authoritative nature of the judgment and its obvious domestic implications, the US government issued no formal comment on the ruling and announced no measures that it would take to comply with it.

The full text of the historic ruling and all of the related documents are available at:


The Avena Case: Confirming and Clarifying LaGrand

In January of 2003, Mexico instituted ICJ proceedings in the case of Avena and Other Mexican Nationals (Mexico v. United States of America).  Mexico alleged that the United States had violated the consular rights of 52 death-sentenced Mexican nationals and sought remedies for those violations.  The United States vigorously opposed all of Mexico’s claims and submissions, challenging the factual basis for the case and arguing that it had unlimited “choice of means” to implement the ICJ’s prior judgment in LaGrand.   Specifically, the United States argued that in each of the 52 cases, clemency review satisfied the United States’ obligation to provide “review and reconsideration” of Vienna Convention violations.  Mexico argued that clemency was wholly unsuitable as a mechanism for reviewing these violations, and pressed the Court to find that the United States was obligated to provide judicial review.  In addition, Mexico asked the Court to rule that the convictions and sentences of all 52 nationals should be vacated.

 On March 31, 2004, the ICJ issued its final judgment. The majority opinion is 61 pages in length and addresses a wide range of questions and issues.   It bears repeating that the final judgment of the ICJ is legally binding on both parties under both the Optional Protocol to the Vienna Convention, the ICJ Statute and Article 94 of the United Nations Charter.

By fourteen votes to one,  the Court found that, for 51 of the 52 individuals named in the case, the United States had failed to inform the detainee of his right to consular notification without delay, in violation of Article 36 (1) (b) of the VCCR.  In 49 of the 52 cases, the Court also found that the United States had violated its corresponding obligation to notify the Mexican consulate of the detention without delay, as well as Mexico’s right to communicate and have access to its nationals.  In 34 of the cases, the United States was also found to have deprived Mexico of its right to arrange for legal representation of those nationals in a timely manner, in breach of Article 36, paragraph 1 (c).

Four elements of the Court’s judgment are particularly noteworthy from a domestic litigation standpoint.

First, the Court clarified that in all 51 cases, the United States was obligated to provide judicial review and reconsideration of the convictions and sentences, including the three cases in which legal appeals have been exhausted.  Clemency review is not an appropriate means to fulfill this obligation, although the ICJ found that appropriate clemency  procedures can supplement (not substitute for) judicial review.  Judicial review must be effective, and must give “full weight” to the violation of the rights set forth in the Vienna Convention, “whatever may be the actual outcome of such review and reconsideration.”   The Court declined to adopt Mexico’s position that the convictions and sentences must be vacated, while leaving open the possibility that such remedies could be provided by the United States courts.

Second, the Court emphatically reaffirmed that procedural default rules may not be invoked to prevent meaningful review and reconsideration of cases in which violations of Article 36 have occurred.  The United States had argued that the application of procedural bars was harmless in these cases, since each Mexican national was entitled to challenge the fairness of his trial under the United States Constitution.  The Court rejected these arguments, and emphasized that the review and reconsideration process must “guarantee that the violation and the possible prejudice caused by that violation will be fully examined and taken into account in the review and reconsideration process.”

Third, the ICJ endorsed a prejudice standard in reviewing these claims.  The Court did not articulate who should bear the burden of proof, nor did it define the term “prejudice.”  The ICJ adopted various formulations in its reasoning, referring at times to (1) possible prejudice caused by the violation; (2) the legal consequences of the violation upon the criminal proceedings that have followed the violation; (3) whether the violation of Article 36 caused actual prejudice to the defendant in the process of administration of criminal justice; and (4) whether the violations can be regarded as having, “in the causal sequence of events, ultimately led to convictions and severe penalties.”   It is noteworthy, however, that the ICJ rejected the United States’ argument that violations of Article 36 could never be harmful, so long as the defendant received all of the protections to which he was entitled under the United States Constitution.  The court emphasized that “[t]he rights guaranteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under United States constitutional law.”   Thus, “the defendant raises his claim in this respect not as a case of “harm to a particular right essential to a fair trial-- a concept relevant to the enjoyment of due process rights under the United States Constitution -- but as a case involving the infringement of his rights under Article 36, paragraph 1.”

 Finally, the Court held that the duty to inform a foreign national of his consular notification rights arises “as soon as [the authorities] realize that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.”   The ICJ observed that notification does not necessarily have to take place prior to interrogation, since the VCCR does not contemplate a consular officer acting as the legal representative or more directly engaging in the criminal justice process.  It is equally apparent, however, that where the authorities learn of the detainee’s foreign nationality before interrogation, they would be required to notify him at that time of his consular rights.

In order to improve compliance with its obligation to provide consular information without delay, the Court suggested (but did not require) that the United States incorporate consular rights information into the Miranda warnings.

The Court also made clear in dicta that its interpretation should apply to all individuals in similar circumstances in the United States, regardless of nationality.

 For a capsule summary of the main holdings, see Instant Avena on this site:

For full documentation from the ICJ proceedings and judgment, visit:

On 7 March 2005, the U.S. Government advised the United Nations of its withdrawal from the VCCR Optional Protocol.  It should be clearly understood that this decision has no effect on the force of the prior ICJ Judgments in LaGrand and Avena, which continue to be legally binding on the USA.  As the State Department later announced, “The United States has not withdrawn from the Vienna Consular Convention and remains committed to its principles and provisions. . . The U.S. is fully committed to compliance with our international legal obligations under the VCCR, and actively works to improve compliance nationally.” U.S. Department of State, Announcement: All Consular Notification Requirements Remain in Effect, available at: .


The U.S. withdrawal means that other parties to the Optional Protocol may no longer bring VCCR claims against the United States for compulsory resolution by the ICJ.  However, the ICJ does not sit as court of appeal and has already fully addressed the requirements of Article 36 for all nationalities, suggesting that any future claims brought against the USA raising identical issues would not have been productive.  The most significant effect of this unfortunate decision may well be to deprive the United States of the right to defend its own consular rights and interests by bringing VCCR claims before the International Court.


Enforcing Avena: the Medellin Case


On 10 December 2004, the U.S. Supreme Court agreed to review the case of José Medellín, a death-sentenced Mexican national in Texas and another of the individuals named in the Avena decision of the International Court of Justice.  Mr. Medellín asked the Supreme Court to decide whether the Avena Judgment was directly binding on the U.S. courts, or should be followed by the domestic courts out of judicial comity.  Mr. Medellín’s appeal was supported by a wide range of amicus briefs representing some 50 concerned nations, various non-governmental organizations and former U.S. diplomats. 


Shortly before the Supreme Court was scheduled to hear oral arguments on these important questions, President George W. Bush issued a legal memorandum announcing that the United States intended to comply with Avena by requiring state courts to provide “review and reconsideration” in all 51 cases:

I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States of America, that the United States will discharge its international 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 I.C.J. 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.

George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae, Medellín v. Dretke (No. 04-5928).  In an amicus brief submitted to the U.S. Supreme Court, the United States clarified that, under the presidential directive, a state court “is required to review and reconsider the conviction and sentence of the affected individual to determine whether the violations identified by the ICJ caused actual prejudice to the defense at trial or at sentencing.”  Where prejudice is found, “a new trial or a new sentencing would be ordered.  A state court may not, however, interpose procedural default to prevent review and reconsideration.”  The President’s determination establishes a “binding federal rule” and hence constitutes the supreme law of the land.  While the scope of the President’s legal determination is confined to the cases named in Avena, the government’s brief also recognizes that it is “without prejudice to the courts’ power to consider afresh in other cases the underlying treaty-interpretation and application issues subsumed in the ICJ’s rulings”.  Brief of the United States as Amicus Curiae, Medellín v. Dretke, at 41-42, 2005 WL 504490.


In reaction to the President’s memorandum, Mr. Medellín filed a new habeas petition with the Texas courts asserting that he was now entitled to “review and reconsideration” under Avena and by the terms of the presidential directive.  Texas authorities responded to the President’s decision by questioning his constitutional authority to order state court reviews of the cases. 

On May 23, 2005, the Supreme Court ruled 5-4 that Mr. Medellín’s petition should be dismissed as improvidently granted.  The Court recognized that review and potential remedy by the state courts was the correct next step, followed  by its further consideration of the case, if necessary:

In light of the possibility that the Texas courts will provide Medellín with the review he seeks pursuant to the Avena judgment and the President’s memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellín’s pending action, we think it would be unwise to reach and resolve the multiple hindrances to dispositive answers to the questions here presented.


Medellín v. Dretke, 125 S.Ct. 2088, 2092 (May 23, 2005) (per curiam).  Four of the Justices initially preferred that the case be stayed until the Texas courts could address the successive habeas petition filed by Mr. Medellín.  Significantly, all of the opinions filed acknowledge the possibility that the petitioner might well obtain compliance with the Avena Judgment through the Texas courts.  The per curiam opinion noted that the “state-court proceeding may provide Medellín with the very reconsideration of his Vienna Convention claim that he now seeks in the present proceeding,” with the concurring and dissenting opinions all expressing similar views.  The principal dissent by Justice O’Connor provides a useful analysis of why Article 36 could well be construed as conferring justiciable rights on individuals.


The Texas Court of Criminal Appeals later responded by dismissing Medellín’s subsequent habeas application, holding that the President had “exceeded his constitutional authority” by ordering state court compliance with the ICJ decision, and finding that Avena did not constitute binding federal law.  See Ex Parte José Ernesto Medellín, No. AP-75,207, 2006 Tex. Crim. App. LEXIS 2236 (Nov. 15, 2006).  


The Supreme Court granted certiorari and issued its decision on March 25, 2008.  The majority found it undisputed that Avena “constitutes an international law obligation on the part of the United States,” but held that none of the treaties addressing the enforcement of ICJ decisions are “self-executing,” meaning that their requirements cannot be directly enforced by the U.S. courts.  Consequently, the  Court concluded that “neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that preempts state limitations on the filing of successive habeas petitions,” and thus neither Avena nor the Presidential memorandum required state courts to provide review and reconsideration of the claims of the 51 Mexican nationals named in the ICJ decision.  Medellín v. Texas, 128 S. Ct. 1346, 1353 (2008).  The Court also held that President Bush lacked the constitutional authority to order the state courts to provide “review and reconsideration” of the Vienna Convention violations in the affected cases. 

Despite its obvious significance as a treaty interpretation case, it is crucially important to understand that the Medellín decision does not concern the judicial enforceability of the VCCR at all.  Nothing in the decision addresses the larger question of individual rights under Article 36 and the remedies that may flow under domestic law for violations of those rights when the claim is raised in a timely manner.  In fact, the Medellín Court was careful to emphasize that those important issues were not under review:


The question is whether the Avena judgment has binding effect in domestic courts under the Optional Protocol, ICJ Statute, and U.N. Charter. Consequently, it is unnecessary to resolve whether the Vienna Convention is itself “self-executing” or whether it grants Medellín individually enforceable rights. . . . As in Sanchez-Llamas, 548 U.S., at 342-343, 126 S.Ct. 2669, we thus assume, without deciding, that Article 36 grants foreign nationals “an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification.”

Three aspects of the Medellín decision are especially noteworthy.  First, every member of the Court recognized that the United States has an international legal obligation to comply with Avena.  Second, every justice acknowledged that the national interest in securing full domestic compliance with Avena is “plainly compelling,” since that would result in “ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law.” Third, the Court determined that the responsibility for vindicating these plainly compelling national interests rests not with the courts but with the U.S. Congress.

Grounds for Relief: Case Studies

Gerardo Valdez, Oklahoma

In the first domestic death penalty case to address the direct enforceability of the LaGrand decision, the Oklahoma Court of Criminal Appeals granted an indefinite stay of execution to Mexican national Gerardo Valdez, finding that Valdez's successor habeas petition based on LaGrand raised "a unique and serious matter involving novel legal issues and international law". Valdez had previously been granted two reprieves by the Governor of Oklahoma after Mexican authorities intervened in the case and the state pardons board had recommended the commutation of the death sentence, largely on the grounds of the treaty violation. However, the governor eventually refused to follow the clemency recommendation, resulting in the last-minute appeal and stay of execution.

The decision of the Oklahoma Court of Criminal Appeals in the Valdez case provides a useful example of judicial pragmatism when confronted with a persuasive VCCR claim. The Oklahoma CCA declined to grant relief on the basis of LaGrand, finding that Valdez's Vienna Convention claim was procedurally defaulted:

"Whether the treaty creates individually enforceable rights or not, the United States Supreme Court in Breard specifically rejected the contention that the doctrine of procedural default was not applicable to provisions of the Vienna Convention and until such time as the supreme arbiter of the law of the United States changes its ruling, its decision in Breard controls this issue. Petitioner cannot be afforded review under our statutes on the ground that the ICJ's interpretation of the Convention in LaGrand constitutes a new rule of constitutional law."

However, the Court emphasized the potential significance of timely consular assistance in this case:

"We cannot ignore the significance and importance of the factual evidence discovered with the assistance of the Mexican Consulate. It is evident from the record before this Court that the Government of Mexico would have intervened in the case, assisted with Petitioner's defense, and provided resources to ensure that he received a fair trial and sentencing hearing...We believe trial counsel, as well as representatives of the State who had contact with Petitioner prior to trial and knew he was a citizen of Mexico, failed in their duties to inform Petitioner of his right to contact his consulate."

Although the Court had twice previously considered a claim that Valdez received inadequate representation, the cumulative impact of the new evidence was deemed sufficient to require a new sentencing hearing:

"While we have no doubt the evidence discovered with the assistance of the Mexican Consulate could have been discovered earlier, under the unique circumstances of this case, it is plain that the evidence was not discovered due to trial counsel's inexperience and ineffectiveness... this Court cannot have confidence in the jury's sentencing determination and affirm its assessment of a death sentence where the jury was not presented with very significant and important evidence bearing upon Petitioner's mental status and psyche at the time of the crime. Absent the presentation of this evidence, we find there is a reasonable probability that the sentencer might "have concluded that the balance of aggravating and mitigating circumstances did not warrant death." (citing Strickland).

The decision is Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2002).


Osbaldo Torres, Oklahoma

The first case to test the binding force of the ICJ decision in Avena was that of Mexican national Osbaldo Torres in Oklahoma.  Specifically named by the ICJ as one of the cases in which the U.S. courts must provide “review and reconsideration” and facing imminent execution, Torres filed a successive habeas petition with the Oklahoma courts based on Avena.  The Oklahoma Court of Criminal Appeals then issued an order indefinitely staying his execution and requiring the trial court to hold a special hearing to determine primarily “whether Torres was prejudiced by the State’s violation of his Vienna Convention rights.” 


Just hours later, Governor Brad Henry commuted Mr. Torres’s death sentence to life imprisonment.  Noting the court order, the Governor said, “Despite that stay, I felt it was important to announce the decision that I had made upon a careful and thorough review of the entire case.”   The Governor’s statement also pointed out that “Under agreements entered into by the United States, the ruling of the ICJ is binding on U.S. courts.” 


Following the court order, an Oklahoma judge held a special hearing and determined that Mr. Torres was prejudiced by the violation of his consular rights.  The Oklahoma Court of Criminal Appeals subsequently endorsed that conclusion.   After considering the extensive assistance that Mexico provided after belatedly learning of the case, the Court concluded that the Article 36 violation was prejudicial at the sentencing phase; because the death sentence had already been commuted, no further remedy was required.  In adopting the 3-part prejudice test first developed by the Ninth Circuit in Rangel-Gonzalez, the Court noted: "If a defendant shows that he did not know he could have contacted his consulate, would have done so, and the consulate would have taken specific actions to assist in his criminal case, he will have shown he was prejudiced by the violation of his Vienna Convention rights." This test "is consistent with the direction of the International Court of Justice decision. . . .Whether or not the aid results in a different case outcome, a citizen must be actually prejudiced when he is denied aid his government would have provided." 


Torres v. State, 120 P.3d 1184 (Okla. Crim. App. 2005).



Isidro Marquez Burrola, Oklahoma


In this groundbreaking case the Oklahoma Court of Criminal appeals ordered an evidentiary hearing on direct appeal to examine the refusal of capital trial counsel to accept consular assistance when representing a mentally-ill Mexican national.  Finding ample evidence of prejudice resulting from for the failure to develop and present mitigating evidence with consular help, the Court took the unusual step of directly modifying the death sentence to life imprisonment; see Marquez-Burrola v. State, 157 P.3d 749 (Okla. Crim. App. 2007). 


“Even though Appellant declined an invitation to contact the Mexican consulate on his arrest, consular officials were notified about his case, and they enlisted the help of the Mexican Capital Legal Assistance Program (MCLAP) to communicate with defense counsel. Attorneys working on Mexico's behalf were in contact with defense counsel in the summer of 2002, offering, among other things, sample motions to seek court funds for experts and other services, including a mitigation investigation.”  Id. at 764.


“Mexico has a long history of providing financial and legal support to its nationals charged with capital crimes in the United States. The Mexican Capital Legal Assistance Program was established to provide experienced legal, forensic, and financial support to defense counsel around the country who represent Mexican nationals charged with capital crimes.” Id. at n. 13.


“We find it ironic that...[counsel] later appointed to represent Appellant on direct appeal, was able to marshal substantial mitigating evidence. This was accomplished with invaluable help from attorneys and mitigation specialists working on behalf of the government of Mexico--the same professionals who had repeatedly offered assistance to trial counsel, and who testified that a thorough mitigation investigation might have been available before trial, had trial counsel first sought funds from the district court to conduct it.”  Id. at 766, n. 20.


Dinh Pham, Virginia


In January of 2006, the judge presiding over proceedings in the capital case of Vietnamese national Dinh Pham ruled in response to a pre-trial motion that Virginia police had failed to advise him of his consular rights. As the appropriate remedy for the violation of the defendant’s consular treaty rights, the state was prohibited from seeking the death penalty. State authorities promptly appealed the trial court ruling, and the Virginia Supreme Court later ruled that the judge had exceeded her authority by precluding the death penalty. The Court also found, however, that following a conviction for capital murder, the trial judge “will have the authority…to exercise judicial discretion to decide whether to impose the death penalty.” In re Horan, 634 SE 2d 675, 678-679 (Va. 2006). Following Dinh’s capital murder conviction, the trial judge sentenced him to life imprisonment.


Other options: civil litigation

A jury in New York City awarded compensatory and punitive damages to a Danish woman for the failure of the NYPD to inform her of her right to consular assistance upon arrest. As public awareness of consular notification issues increases, it is likely that other egregious cases will present opportunities for civil litigation, particularly where other elements are present, such as false arrest or ill-treatment in custody.

Anette Sorensen was arrested in May of 1997 and charged with child endangerment, after she left her infant unattended in a stroller and went in to a restaurant. Following a highly-publicized trial that contrasted child rearing practices in Europe and the USA, Ms. Sorensen and her partner filed a civil lawsuit for false arrest. While the six-member jury rejected the false arrest claim, they did award a total of $66,401 in damages for events after her arrest, including what the jury called the police's "widespread practice" of failing to advise foreigners who are arrested in New York of their right to assistance from their consulate.

Ms. Sorensen was awarded $6,400 in compensatory damages for the failure of the police to advise her of her right to have the Danish Consulate notified. Her lawyer, Michael Q. Carey, had offered evidence that the police failed in tens of thousands of cases each year to provide such notification. Official records produced by the plaintiff revealed that over 53,000 foreign nationals were arrested in New York City during 1997, but that the NYPD Alien Notification Log registered only 4 cases in which consulates were notified of those arrests--a failure rate well in excess of 99 per cent (even presuming that a majority of the detainees might have declined consular notification).

Although the Sorensen award and decision were both later reversed on appeal, a recent preliminary ruling in another case out of New York City points to a viable mechanism for seeking civil remedies for consular rights violations. Recently, a German national brought an action under 42 U.S.C. §1983 against the NYPD for their failure to notify the German Consulate of his arrest after he specifically requested that they do so.

The city moved to dismiss the claims under the Vienna Convention and Section 1983, arguing first that the treaty does not provide for a private right of action in and of itself, and that a claim for money damages can not be brought under Section 1983 predicated on a denial of rights under the Vienna Convention. However, the court rejected both of the city's arguments, finding that " the language of the VCCR, coupled with its legislative history and subsequent operation, suggest Article 36 of the Vienna Convention was intended to provide a private right of action to individuals detained by foreign officials." The court also found that the U.S. Supreme Court, in Blessing v. Freestone, 520 U.S. 329 (1997), recognized that "Section 1983 provides a cause of action to redress deprivation of 'any rights ... secured by the Constitution and laws' of the United States, not only fundamental or Constitutional rights." Finally, the absence of a provision for civil recovery in the treaty does not preclude such a recovery under Section 1983.  See Standt v. City of New York, 153 F. Supp.2d 417 (S.D.N.Y. 2001) (civil). (The Vienna Convention confers a private right of action enforceable by individuals; defendants may pursue an affirmative claim for violations of their VCCR rights pursuant to 42 U.S.C. §1983).

More recently, the U.S Seventh Circuit Court of Appeals held that an Indian national had standing to bring a civil suit for damages arising from an Article 36 violation.  See Jogi v. Voges, 425 F.3d 367, 385 (7th Cir. 2005) (following completion of sentence, authorizing suit under the Alien Tort Statute, 28 U.S.C. § 1350, because “there is an implied private right of action to enforce the individual's Article 36 rights.”)  The case is also noteworthy for its thorough discussion of the factors supporting a finding that Article 36 confers individual justiciable rights, the violation of which would be subject to appropriate remedies in the domestic courts.

Conclusion: an issue worth developing

Claims citing a violation of consular rights should be filed at the earliest possible stage of the proceedings (including pre-trial motions), if only to preserve the issue for further review.  Obtain an affidavit from your clients to establish that they were not informed of their consular rights and would have exercised them. After obtaining your client's consent, immediately contact the consulate and apprise them of the situation.  Given the significance of the Vienna Convention, most consuls will respond positively, particularly in cases where timely consular assistance could plausibly mean the difference between life and death.

Consular intervention can be beneficial to your client in unexpected ways. The active involvement of the consulate has dissuaded some prosecutors from seeking the death penalty in the first place; in other cases, a single consular visit has persuaded condemned prisoners to resume their appeals. 

Clearly, motions or appeals citing an Article 36 violation in the USA would be most effective where it can be demonstrated that the violation materially harmed the ability to mount an adequate defense or affected the outcome of the trial. Of particular importance is the crafting of a strong argument that judicial remedies are both available and appropriate for the violation of an individual's treaty-based rights. Claims raised as post-conviction habeas appeals should strive to establish that the prejudice sustained by the defendant was clearly not harmless error. In all death penalty cases, counsel should cite the ICJ decisions in LaGrand and Avena as providing an authoritative, legally binding and enforceable rule of decision—at least so far as the ICJ interpretation does not conflict with domestic procedural rules.



Useful Precedents

Courts in the United States have now considered several hundred VCCR claims, in a wide variety of postures and proceedings.  The following list includes some of the lesser-known or more helpful of those decisions.


Pre-trial remedies


Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006) (“A defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police. If he raises an Article 36 violation at trial, a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance.”)


Prejudice standard

United States v. Rangel-Gonzalez, 617 F.2d 529, 533 (9th Cir. 1980) (dismissing indictment for illegal re-entry, where the INS failed to comply with consular advisement requirements and defendant demonstrated prejudice: he “did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance to him in resisting deportation.”


Torres v. State, 120 P.3d 1184, 1187 (Okla. Crim. App. 2005) (“If a defendant shows that he did not know he could have contacted his consulate, would have done so, and the consulate would have taken specific actions to assist in his criminal case, he will have shown he was prejudiced by the violation of his Vienna Convention rights.”) 


Individual rights


Jogi v. Voges, 480 F.3d 822, 834 (7th Cir. 2007) (“We conclude that even though many if not most parts of the Vienna Convention address only state-to-state matters, Article 36 confers individual rights on detained nationals.”)


Medellin v. Texas, 552 U.S. 491, 506 n. 4 (2008) (continuing to assume that Article 36 grants foreign nationals “an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification.”)

Ineffective assistance claims


Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008) (finding trial counsel was ineffective for failing to seek a remedy for an Article 36 violation and remanding non-capital habeas case for prejudice determination); id. at 408 (concluding after analysis that “Sanchez-Llamas appears to express a preference for subsuming Vienna Convention claims in broader constitutional attacks, rather than basing relief entirely on the treaty itself.”); id. at 403 (observing that consulates “can provide critical resources for legal representation and case investigation. Indeed, the consulate can conduct its own investigations, file amicus briefs and even intervene directly in a proceeding if it deems that necessary.”)

Deitz v. Money, 391 F.3d 804 (6th Cir. 2004) (remanding non-capital case to determine, inter alia, if trial attorney’s failure to “notify Deitz of his right to contact the Mexican consulate …deprived him of the effective assistance of counsel.”)

Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App. 2002) (in capital case, finding Article 36 claim procedurally defaulted but remanding for resentencing, on the grounds that trial counsel’s failure to seek assistance from Mexican Consulate constituted deficient and prejudicial performance)

Torres v. State
, 120 P.3d 1184, 1187 (Okla. Crim. App. 2005) (in capital case, applying ICJ-mandated remedy of "review and reconsideration" and Rangel-Gonzalez  prejudice test to find prejudice at penalty phase arising from Article 36 violation)


Marquez-Burrola v. State, 157 P.3d 749 (Okla. Crim. App. 2007) (modifying death sentence to life imprisonment for trial counsel’s failure to develop mitigating evidence despite available consular assistance).


State v. Morales-Mulato, 744 N.W.2d 679 (Minn. App. 2008) (suppression not an appropriate remedy for Article 36 violation, but may be considered in assessing whether statement was voluntary, knowing, and intelligent)

State v. Ramirez, 732 N.E.2d 1065, 1070-71 (Ohio App. 3d. 1999) (in criminal case, noting in dicta that if Article 36 had been complied with inadequate Miranda translation requiring reversal “would have been avoided”)

U.S. v. Miranda, 65 F.Supp.2d 1002 (D.Minn.1999) (in immigration case, two-day delay in advisement of consular rights constituted Article 36 violation, but defendant failed to demonstrate how consular contact might have prevented him from making statements to police). See also id. at 1005 (“Indeed, the fact that authorities were able to administer Miranda warnings to him during the relevant time-frame amply demonstrates that the officers had sufficient means and opportunity to provide him with [consular] notification.”).

Civil remedies


Jogi v. Voges (Jogi II), 480 F.3d 822, 824-25 (7th Cir. 2007)

(42 U.S.C. § 1983 provides a private right of action for enforcing individual rights established by the Vienna Convention, and reserving the questions of whether jurisdiction could also rest on the Alien Tort Statute or whether Vienna Convention rights could be vindicated by means of an implied action directly under the Convention)


Standt v. City of New York, 153 F. Supp. 2d 417, 427 (S.D.N.Y. 2001) (in wrongful arrest suit, VCCR confers a private right of action enforceable by individuals; defendants may pursue an affirmative claim for violations of their Article 36 rights pursuant to 42 U.S.C. §1983).

Instructive language

Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997) (in capital case, treaties such as the VCCR “are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national.”)


Ledezma v. State, 626 NW.2d 134, 152 (Iowa 2001) (Mexican consular officer “would explain the significant differences between the American and Mexican criminal justice systems”; court believes “all criminal defense attorneys representing foreign nationals should be aware of the right to consular access as provided by Article 36, and should advise their clients of this right. Criminal defense attorneys are not equipped to provide the same services as the local consulate. Consular officials can eliminate false understandings and prevent actions which may result in prejudice to the defendant. Thus, consular access may very well make a difference to a foreign national, in a way that trial counsel is unable to provide.” [citations omitted])

Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring) (Article 36 obligations “should be implemented before trial when they can be appropriately addressed. Collateral review is too limited to afford an adequate remedy.”); id. (warning that the “freedom and safety” of U.S. citizens abroad “are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example”).

U.S. v. Cisneros, 397 F. Supp. 2d 726, 729 (E.D. Va. 2005) (finding that MCLAP and Mexican consulate “did render valuable assistance to Mr. Cisneros by helping to make witnesses available during the penalty phase of this death penalty trial and by providing assistance to Mr. Cisneros's attorneys.”)

Commonwealth v. Gautreaux, 458 Mass. 741 (2011), a post-Medellin decision in which the Supreme Judicial Court of Massachusetts recognized and applied the Avena requirement of 'review and reconsideration' for Vienna Convention violations by accepting that "postconviction review may be obtained at any time by filing a motion for a new trial" based on a VCCR violation. The Court attached a high prejudice standard, but it nonetheless chose to recognize Avena notwithstanding Medellin [at 751]:

"We acknowledge and accept the conclusion of the ICJ regarding the obligation that art. 36 creates when clear violations of its notice protocols have been established, that is, to provide some process by which the soundness of a subsequent conviction can be reviewed in light of the violation."


Other noteworthy cases

Consulate Gen. Of Mexico v. Phillips
, 17 F. Supp. 2d 1318, 1322-23 (S.D. Fla. 1998) (Mexican Consulate had a right to be notified and to be of assistance to detained national and standing to assert that right).


Arteaga v. Texas Department of Protective and Regulatory Services, 924 S. W. 2d 756 (Tex. App.-Austin 1996) (construing the mandatory notification provisions of Article 37 (legal guardianship of foreign juveniles) and restating the axiom that the state must comply with the provisions of the VCCR).  


Books and Law Review Articles

-for an overview of consular functions and the significance of the VCCR, see Luke T. Lee, Consular Law and Practice, Oxford: Clarendon Press, 1991 (2nd ed.).

-an early analysis of Article 36 violations and US law: Gregory Dean Gisvold, Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities, Minnesota Law Review, Vol. 78 No.3, February 1994. The footnotes contain a wealth of useful detail and additional sources; the article proposes a standardized notification procedure akin to Miranda v. Arizona.

-for a treatment of the importance of consular assistance at the pre-trial and trial phase, see Adele Shank and John Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 St. Mary's Law Journal, 719 (1995).

-consular assistance in criminal cases is also reviewed in Victor Uribe, Consuls at Work: Universal Protections of Human Rights and Consular Protection in the Context of Criminal Justice, 19 Houston Journal of International Law, 375 (1996).

-the history of the VCCR, its applicability in individual cases and the scope of potential judicial remedies: William C. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs and Remedies, 31 Vand. Journal of Transnational Law, 257 (1998).

-consular notification rights should apply from the earliest possible moment of detention to prevent prejudicial treatment; the drafters of Article 36 expressly intended to confer a legal right on individual nationals: Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Michigan Journal of International Law, 565 (1997).

-The federal government has ultimate responsibility for compliance with international treaty obligations: Ronan Doherty, Foreign Affairs v. Federalism: How State Control of Criminal Law Implicates Federal Responsibility Under International Law, 82 Virginia Law Review, 1281 (1996)

- assistance for detained foreign nationals may also be available from other organizations, including cultural, religious and special interest groups. For a detailed list of these groups in the USA by nationality, see: Lara A. Ballard, The Vienna Convention, Consular Access and Other Assistance Available to Foreign Nationals: A Guide for Criminal and Immigration Lawyers, Columbia Human Rights Law Review (1998). Also available on-line at:

- a domestic court should order restitution as the usual remedy when a party with a real stake in the matter has established that a violation of international law has occurred:  Frederic L. Kirgis, Restitution as a Remedy in U.S. Courts for Violations of International Law , American Journal of International Law, April, 2001, 95 A.J.I.L. 341.

- discussing the possibility of executive action or enforcement through a lawsuit brought by the Justice Department to compel  a state to comply with the treaty in a criminal case: John Quigley, The Law of State Responsibility and the Right to Consular Access, 11 Willamette J. Int’l L. & Disp. Resol. 39 (2004)

-amending the federal habeas statute to create a statutory exception for Avena “review and reconsideration” is the most effective response: Linda E. Carter, Lessons from Avena: The Inadequacy of Clemency and Judicial Proceedings for Violations of the Vienna Convention on Consular Relations, 15 Duke Journal of Comparative and International Law 259 (2005). 

Amnesty International Reports (available at

USA: Violation of the Rights of Foreign Nationals Under Sentence of Death, AI Index: AMR 51/01/98, January 1998. Outlines the general failure of U.S. authorities to inform detained foreigners of their consular rights, with disastrous consequences in capital cases.

USA: The Execution of Angel Breard: Apologies Are Not Enough , AI Index: AMR 51/27/98, May 1998. Reviews the efforts to litigate this issue in the Breard case at the domestic and international level, as well as the response of the U.S. government.

United States of America: Worlds Apart. Violations of the Rights of Foreign Nationals on Death Row - Cases of Europeans AI Index AMR 51/101/00.

United States of America: A Time for Action-- Protecting the consular rights of foreign nationals facing the death penalty AI Index: AMR 51/106/2001.Provides a review of the LaGrand  decision and proposes 12 recommended steps for compliance by state and federal authorities.

Magazine and Newspaper Articles

Representing Foreign Nationals: Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool, John Sims and Linda Carter, The Champion, September/October 1998. Outlines the litigation history of Article 36 in the USA and proposes a number of strategies for raising the claim at various stages of litigation. Detailed footnotes included.

Vienna Convention: New Tool for Representing Foreign Nationals in the Criminal Justice System, Logene Foster and Stephen Dogett, The Champion, March 1997. Brief introduction to the litigation potential of the VCCR, including Article 37 (guardianship rights).

States Deny Treaty Rights to Foreign Defendants, Robert Brooks and William Wright, Jr., National Law Journal, November 4, 1996. Early introduction to legal claims under Article 36, by the attorneys who represented Mexican national Mario Murphy in Virginia.

Foreigners' Convictions Raise Rights Issue, Margaret Jacobs, Wall Street Journal, November 4, 1997. Early coverage of VCCR claims in death penalty cases.

Aliens' Rights Issue in Texas Death Row Case, Rick Lyman, New York Times, December 8, 1998. Report on the Article 36 claim in the Faulder case and the State Department's intervention.

Foreigners on Death Row Denied Rights, U.S. Says, Henry Weinstein, Los Angeles Times, December 10, 1998. A lengthy and accurate article on the treaty issue, with good material on efforts to date by Mexico, Canada and Thailand.

U.S. Bid to Execute Mexican Draws Fire, Raymond Bonner, New York Times, October 26, 2000. Good overview of efforts by Mexican consular officials to assist their nationals facing the death penalty in the USA.

*World Court Rebukes U.S. Over Execution of Germans, New York Times, June 27, 2001. An overview and analysis of the ICJ ruling in the LaGrand Case and its possible implications.

Foreigners on Death Row Shortchanged, Eun-Kyung Kim, Associated Press, July 10, 2001. Explores the general failure of US authorities to inform foreign nationals of their consular rights, in the context of the Valdez case in Oklahoma.

Foreign National, Denied Consulate Call, Can Sue for Damages, Mark Hamblett, New York Law Journal, July 24, 2001. Good summary of the main points in the civil case brought in Standt v. City of New York .

Foreigners Awaiting Execution in U.S. Pursue New Trials, Paul Hofheinz, The Wall Street Journal Europe, August 30, 2001. Reports on efforts by attorneys to litigate the LaGrand decision in domestic courts, with a focus on the Valdez case.


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Additional Resources 

On-line Material

- data on death-sentenced foreign nationals in the USA and other background material:

- US Department of State manual for law enforcement:


General Assistance in Capital Cases


Human Rights Research acts as a clearinghouse of information and contacts on Article 36 issues.  Among other services, it offers a free electronic newsletter on recent developments, access to an extensive electronic library, a brief bank, litigation guides and bibliographies, consulting services and contacts with other experts in this field.  Contact Mark Warren at (613) 256-8308, or by email


The Mexican Capital Legal Assistance Program is an initiative funded by the Mexican Foreign Ministry to provide various forms of support to attorneys representing Mexican nationals facing the death penalty in the United States.  Its services include a team of attorneys experienced in raising VCCR and other international law claims, model briefs and motions, amicus briefs and assistance in working with local Mexican consular officers.  If you represent a Mexican national facing capital charges, contact the Program at 520-792-8033.


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Appendix I  Excerpts from the Vienna Convention on Consular Relations

Ratified without reservations by the United States on November 24, 1969.

Article 5: Consular Functions

Consular functions consist in:

(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

(c ) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession 'mortis causa' in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;

(j) transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;

(l) extending assistance to vessels and aircraft mentioned in sub-paragraph (k) of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;

(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the inter-national agreements in force between the sending State and the receiving State.

Article 36: Communication and Contact With Nationals of the Sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he 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;

(c ) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article 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.


Appendix II   Mandatory Notification Countries in the USA (Bilateral Agreements)


Antigua and Barbuda             Malta

Armenia                                  Mauritius

Azerbaijan                              Moldova

Bahamas                                Mongolia

Barbados                               Nigeria

Belarus                                   Philippines

Belize                                     Poland (non-permanent residents)

Brunei                                    Romania

Bulgaria                                 Russia

China                                    Saint Kitts and Nevis

Costa Rica                            Saint Lucia

Cyprus                                  Saint Vincent and the Grenadines

Czech Republic                    Seychelles

Dominica                              Sierra Leone

Fiji                                         Singapore

Gambia                                 Slovakia

Georgia                                 Tajikistan

Ghana                                   Tanzania

Grenada                                Tonga

Guyana                                  Trinidad and Tobago

Hong Kong                            Turkmenistan

Jamaica                                 Tuvalu

Kazakhstan                            Ukraine

Kiribati                                    United Kingdom

Kuwait                                    U.S.S.R. (Successor states)

Kyrgyzstan                             Uzbekistan

Malaysia                                 Zambia


Note: This list was compiled in 1998 and may no longer be comprehensive. When exploring the possibility of a bilateral consular agreement, consult with the consulate in question.

In most instances, bilateral consular agreements require that the consulate be notified within a stipulated time period whenever one of its nationals is arrested or detained in the USA, irrespective of the national's wishes. As with Article 36 violations, there is considerable evidence that these provisions are routinely breached by arresting authorities across the USA. Litigation of this issue is still in a very early stage of development.

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