The European Journal of International Law Vol. 18 no. 2 © EJIL 2007; all rights reserved
Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights
* J.D. University of Michigan Law School (2004). The author clerked at the International Court of Justice (2004–2005) and is currently pursuing a PhD in law at the European University Institute in Florence. I would like to thank Bruno Simma and Andreas Paulus for their insightful comments on an earlier draft of this article. Further thanks are due to Mark Toufayan and Knut Traisbach for helpful feedback. Email: carsten.hoppe{at}eui.eu.
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Abstract |
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Article 36 of the Vienna Convention on Consular Relations identifies consular information as an individual right that foreign nationals possess when arrested or detained abroad. The difficulties encountered by these persons, however, when they seek to vindicate that right before domestic courts has become dramatically visible in the cases of foreigners on death row in the United States. In recent years, three such cases have reached the International Court of Justice (ICJ), two of which were fully litigated. In LaGrand and Avena, the ICJ ordered review and reconsideration where Article 36 rights had been violated and the legal process was already exhausted. Unfortunately, the implementation of these judgments in the United States left much to be desired. The majority opinion in the recent Supreme Court decision in Sanchez-Llamas v. Oregon, with its abrasive treatment of the ICJ, forms an unfortunate culmination point of this trend. On the other side of the Atlantic, the German Bundesverfassungsgericht fortunately steered a very different course. Contrary to their US counterparts, the German judges had no difficulty in subordinating their jurisprudence to the decision of a competent international court. Thus, the German judges were prepared, under certain circumstances, to afford ICJ decisions a strong guiding force, even where Germany was not a party to the respective cases. The present article compares the striking differences of ‘consideration’ afforded to the ICJ's jurisprudence on Article 36 by the Supreme Court of the United States and the Bundesverfassungsgericht respectively.