Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights

Abstract

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.