Consular Rights Research Articles

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights; (Islamic Republic of Iran v. United States of America)

165International Court of Justice — Jurisdiction — Treaty of Amity, Economic Relations, and Consular Rights, 1955 between Iran and the United States of America (“1955 Treaty”) — Article XXI of the 1955 Treaty — Jurisdiction ratione materiae — Whether real issue in dispute concerning the 1955 Treaty — Whether Iran’s claims actually concerning the decision of United States of America to withdraw from the JCPOA — Whether possible for a State’s conduct to breach more than one legal instrument at the same time — Effect of Iran’s invocation of the compromissory clause under the 1955 Treaty on the dispute settlement mechanism of the JCPOA — Whether the 1955 Treaty covering measures relating to trade between Iran and third countries — Interpretation of Articles IV, V, VII, VIII, IX and X of the 1955 Treaty — Territorial scope of certain provisions of the 1955 Treaty — Link between determination of the content of third country measures — Merits of the caseInternational Court of Justice — Admissibility of Iran’s application — Abuse of process — Exceptional circumstances — Whether exceptional circumstances could justify finding that Iran’s application was an abuse of process — Whether Iran’s application could lead to Iran gaining an illegitimate advantage — Whether a claim based on a valid title of jurisdiction could be an abuse of processTreaties — Interpretation — Application — Article XX(1)(b) and (d) of the 1955 Treaty — Measures relating to fissionable materials — Essential security interests — Whether objections under Article XX(1)(b) and (d) preliminary in character — Connection between Article XX(1)(b) and (d) and the examination at the merits stageEconomics, trade and finance — Economic sanctions — Sanctions imposed by the United States of America against Iran — Territorial extent — Whether capable of affecting rights under the Treaty of Amity, Economic Relations, and Consular Rights, 1955, between Iran and the United States of America — Jurisdiction of the International Court of Justice — Admissibility of application of Iran

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. U.S.) (Judgment on Preliminary Objections) (I.C.J.)

On February 3, 2021, the International Court of Justice delivered its judgment on preliminary objections in Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America). The judgment rejected all of the United States’ preliminary objections, declared the admissibility of Iran's Application, and held that the Court has jurisdiction “on the basis of Article XXI, paragraph 2 of the Treaty of Amity, Economic Relations, and Consular Rights of 1955.”

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights; (Islamic Republic of Iran v. United States of America)

1International Court of Justice — Provisional measures — Conditions for the indication of provisional measures — Prima facie basis for jurisdiction — Treaty of Amity, Economic Relations, and Consular Rights, 1955, between Iran and the United States of America — Whether acts of which Iran complained falling within material scope of the 1955 Treaty — Article XX, 1(c) and 1(d) of the 1955 Treaty — Whether Article XX restricting the Court’s jurisdiction — Plausibility of rights asserted — Whether Article XX making Iran’s asserted rights not plausible — Whether rights invoked by Iran arising under the 2015 Joint Comprehensive Plan of Action — Defence available to United States of America — Link between measures requested and rights whose protection Iran seeking — Real and imminent risk of irreparable prejudice — Evidence of irreparable prejudice — Continuing character of irreparable prejudice — Urgency in the circumstances — Humanitarian concerns — Non-aggravation and non-extension of the dispute — Binding character of provisional measuresEconomics, trade and finance — Economic sanctions — Sanctions imposed by the United States of America against Iran — Territorial extent — Whether capable of affecting rights under the Treaty of Amity, Economic Relations, and Consular Rights, 1955, between Iran and the United States of America — Provisional measures jurisdiction of the International Court of Justice

Jadhav Case (India v. Pakistan)

Jadhav Case (India v. Pakistan) concerned Pakistan's arrest, detention, conviction, and death sentence of Kulbhushan Sudhir Jadhav, asserted by India to be an Indian national, who had been convicted of engaging in acts of terrorism and espionage in Pakistan. This is the third dispute over the interpretation of Article 36 of the Vienna Convention on Consular Relations (VCCR) to come before the International Court of Justice (ICJ). In contrast to the Applicants in the previous consular rights cases, India sought relief that included the annulment of Jadhav's conviction in Pakistan, his release from custody, and his safe transfer to India. After unanimously finding it had jurisdiction, fifteen judges of the ICJ, with only Judge ad hoc Jillani dissenting, held on the merits that Pakistan had breached VCCR Article 36 by failing to inform Jadhav without delay of his rights under that provision; by failing to notify without delay the appropriate consular post of India in Pakistan of his detention; and by depriving India of its right to communicate with Jadhav, to visit him in detention, and arrange for his legal representation. In addition, the Court, with only Judge ad hoc Jillani dissenting, found that Pakistan is under an obligation to inform Jadhav of his rights without further delay and is obliged to provide Indian consular officers access to him. The Court further found that appropriate reparation required Pakistan to provide, by means of its own choosing, effective review and reconsideration of Jadhav's conviction and sentence to ensure that full weight is given to the effect of the violation of his rights. Finally, the ICJ, again with Judge ad hoc Jillani dissenting, declared that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of Jadhav's conviction and sentence.

10 Migrants caught in crises: Contexts, responses and innovation

10 Migrants caught in crises: Contexts, responses and innovation

The International Court of Justice in an Age of Inter-Legality: A Survey of its Case Law in the New Millennium

The International Court of Justice (ICJ) occupies a special position amongst international courts. With its quasi-universal membership and ability to apply in principle the whole body of international law, it should be well-placed to adjudicate its cases with a holistic view on international law. This article examines whether the ICJ has lived up to this expectation. It analyses the Court’s case load in the 21st century through the lens of inter-legality as the current condition of international law. With regard to institutional inter-legality, the authors observe an increase of inter-State proceedings based on largely the same facts that are initiated both before the ICJ and other courts and identify an increasing need to address such parallel proceedings. With regard to substantive inter-legality, the article provides analyses of ICJ cases in the fields of consular relations and human rights, as well as international environmental law. The authors find that the ICJ is rather reluctant in situating norms within their broader normative environment and restrictively applies only those rules its jurisdiction is based on. The Court does not make use of its abilities to adjudicate cases holistically and thus falls short of expectations raised by its own members 20 years ago.

Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America): Request for the Indication of Provisional Measures (I.C.J.)

On October 3, 2018, the International Court of Justice (ICJ) issued a unanimous order indicating limited provisional measures against the United States. Iran initiated the case, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran v. United States), after the United States announced its decision to withdraw from the Joint Comprehensive Plan of Action (JCPOA) and revoke related sanctions relief for Iran. While the ICJ found that it had prima facie jurisdiction to hear the case—contrary to the U.S. position—the provisional measures it granted fell significantly short of the relief Iran sought. The Court also hinted that it might accept a significant element of the U.S. jurisdictional objection at the merits stage of the case.

Iran Initiates Suit Against the United States in the International Court of Justice, While Sanctions Take Effect

In the wake of President Trump's decision to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA) and reimpose sanctions, Iran instituted proceedings against the United States before the International Court of Justice (ICJ). In its application, filed on July 16, 2018, Iran alleged that the re-imposition of sanctions constituted a violation of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Treaty of Amity) between Iran and the United States. In order to prevent “irreparable damages” to the Iranian economy, Iran simultaneously filed a request for provisional measures. After the ICJ issued an order unanimously granting limited provisional measures on October 3, 2018, the United States announced its intention to terminate the Treaty of Amity. The United States issued its first phase of sanctions on August 7, 2018, and the remaining sanctions took effect on November 5, 2018.

Trump Administration Announces Withdrawal from Four International Agreements

In October of 2018, the Trump administration announced that the United States would withdraw from four international agreements. On October 3, 2018, Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty of Amity, Economic Relations, and Consular Rights with Iran. Later that day, National Security Advisor John Bolton announced that the United States was also withdrawing from the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both withdrawals were triggered by pending International Court of Justice (ICJ) cases grounded in these treaties that were recently brought against the United States. Two weeks later, in an escalation of the ongoing trade dispute with China, the United States gave notice of withdrawal from the Universal Postal Union (UPU), the international body charged with overseeing the international mailing system. Finally, on October 22, 2018, President Trump announced that the United States would be terminating the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. Unlike other withdrawals undertaken by the Trump administration, this latest round involved three Article II treaties to which the Senate had provided its advice and consent. In addition, the international commitments withdrawn from in this round were long-standing ones, with U.S. participation in the UPU going back as far as 1875.

Foreigners on America's Death Rows: The Legal Combat Over Access to a Consul by John Quigley

Reviewed by: Foreigners on America's Death Rows: The Legal Combat Over Access to a Consul by John Quigley Sandra Babcock (bio) John Quigley, Foreigners on America's Death Rows: The Legal Combat Over Access to a Consul (Cambridge, 2018), ISBN 9781108428231, 282 pages. Had it not been for the persistence of capital punishment in the United States, Article 36 of the Vienna Convention on Consular Relations (VCCR) would likely have remained an obscure treaty provision, little known and honored in the breach throughout the country. After all, the treaty generated little controversy in the two decades after the US Senate gave its advice and consent to ratification. Dedicated largely to the functions and immunities of consular posts, the treaty contains only a few provisions bearing on the rights of detained individuals. Article 36, however, provides that detained foreign nationals have the right to communicate with consular officials and to have consular posts notified of their detention—and further stipulates that the authorities must advise detained nationals of those rights "without delay."1 As of 1993, no US scholars—with the sole exception of Luke T. Lee2—had written about the implementation of Article 36 with respect to detained foreign nationals.3 In the early 1990s, a series of capital cases changed all that. In Foreigners on America's Death Rows, John Quigley has meticulously documented the slow awakening of US-based litigators to widespread violations of Article 36 in the cases of foreign nationals sentenced to death in the United States. Written in a style designed to be accessible to practitioners unfamiliar with international law, the book provides an exhaustive analysis of the diplomatic debates over the text of Article 36, the intent of the drafters, and the often-flawed analysis of the text by US courts. Professor Quigley has actively participated in litigation in both domestic and international courts over violations of Article 36. The book effectively combines scholarly research with the insights he has gained over decades of engagement in the cases of foreign nationals on death row. It is essential reading for any practitioner, scholar, or jurist grappling with the interpretation of Article 36. If the US Supreme Court ever grants certiorari to decide whether individuals have enforceable rights under the treaty (a question it has thrice refused to address directly), judicial clerks will be reaching for Foreigners on America's Death Rows to inform their bench memos. Along with Professor Quigley and a handful of other lawyers, I have been litigating violations of the Vienna Convention in capital cases for over two [End Page 1003] decades. In 1992, I became the first lawyer to litigate an Article 36 violation in a capital case. I was counsel to the Government of Mexico in Avena and Other Nationals (Mexico. v. United States) in the International Court of Justice4 and have been involved in the US Supreme Court cases of Medellín v. Texas5 and Sanchez-Llamas v. Oregon6 as well as dozens of other cases in state courts—many of which are discussed in Foreigners on America's Death Rows. I thought I would have little to learn from Quigley's text, but I was wrong. The brilliance of Foreigners on America's Death Rows derives from Quigley's synthesis of diplomatic archives and legal records to support his argument that the rights enshrined in Article 36 are integral to the fairness of criminal prosecutions. As I read through it, I kept wishing that Professor Quigley had published the text before the litigation in Avena, and before the US courts adopted a series of poorly reasoned decisions denying individual remedies for violations of consular rights. The material on which he based much of the book did not yet exist, but it is hard for the informed reader to escape the sense of opportunities lost. Part I of Foreigners on America's Death Rows grounds the reader in the longstanding custom of consular assistance and its eventual codification into Article 36. The first chapter describes the evolution of consular practice in the United States under customary law. Focusing on intervention by US consular staff in support of Americans detained abroad, Quigley uses historical examples...

Los extranjeros en Estados Unidos de América y el cumplimiento del artículo 36 de la Convención de Viena sobre relaciones consulares = Foreigners in the United States of America and compliance with article 36 of the Vienna Convention on consular relations

The paper studies the compliance in the United States of America of the provisions of article 36 of the Vienna Convention on Consular Relations of 1963, which establishes the obligation of authorities to inform the foreigner they have detained, without delay, of their right to communicate with their consulates so that their officers can visit and help them organize their legal defense. The document focuses on the United States, a country that has had proceedings instituted against it three times before the International Court of Justice for violations of article 36 of the above-mentioned convention. During the last two decades, the United States has become the international epicenter of the debates on consular rights, not only because it is the nation with the highest number of foreigners living in its territory and has the largest prison population in the world, but also due to the existence of capital punishment in its legal system.

ИСТОРИЧЕСКОЕ РАЗВИТИЕ КОНСУЛЬСКОГО ИНСТИТУТА И КОНСУЛЬСКОГО ПРАВА

ИСТОРИЧЕСКОЕ РАЗВИТИЕ КОНСУЛЬСКОГО ИНСТИТУТА И КОНСУЛЬСКОГО ПРАВА

Friedrich F. Martens on 'The Office of Consul and Consular Jurisdiction in the East'

Friedrich F. Martens is famous for the clause named after him and his Cours of 1882. Much less known is his doctoral thesis of 1873 on ‘The Office of Consul and Consular Jurisdiction in the East’. Apart from dealing with consular rights and duties in the Oriental states in general, Martens’ special interest is in a particular institution of consular law in the ‘East’, i.e., consular jurisdiction. By virtue of so-called capitulations entered into in favour of Western states from the 16th century on, nationals of the latter nations were exempted from the territorial jurisdiction of their Oriental host states. In lieu of it, Western consuls exercised judicial authority over their fellow countrymen. Martens’ analysis of consular jurisdiction is deeply immersed in the 19th century dichotomy of civilized and non-civilized nations, with this institution, from his point of view, assuming a key role in managing the relations between the two. He is convinced that intercourse between the West and the East and consequently a rise in the level of civilization of the Oriental states is only possible by mediation of consular jurisdiction. Thus, studying Martens’ doctoral thesis contributes both to a better balanced assessment of Martens as an international lawyer and reminds us how quickly humanitarian arguments and purported promotion of civilizational purposes can turn into paternalistic reasoning.

Investment Treaty Arbitration and the (New) Law of State Responsibility

The case study of investment treaty arbitration provides an opportunity to examine whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. This article takes the analytical perspective of investors, capable of being perceived as right-holders (by reference to human and consular rights), beneficiaries (by reference to the law of treaties rules on third states), or agents (by reference to diplomatic protection). The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The overall thesis is that conceptual challenges faced by investment arbitration may be illuminated by the solutions formed by the regimes that provided the background for its creation.

Case Nos. 2 BvR 2115/01, 2 BvR 2132/01, & 2 BvR 348/03.60 Neue Juristische Wochenschrift 499 (2007)

Case Nos.2 BvR 2115/01, 2 BvR 2132/01, & 2 BvR 348/03.60 Neue Juristische Wochenschrift 499 (2007). At <http://www.bundesverfassungsgericht.de>.Bundesverfassungsgericht (Federal Constitutional Court of Germany), September 19, 2006.On September 19, 2006, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) held in jointly decided Case Nos. 2 BvR 2115/01, 2 BvR 2132/01, & 2 BvR 348/03 that a failure to provide consular information to foreign nationals pursuant to Article 36 of the Vienna Convention on Consular Relations (VCCR) violates the guarantee of a fair trial as provided by the German Constitution (Grundgesetz). The result is in contrast to a recent U. S. Supreme Court decision in Sanchez-Llamas v. Oregon, a strikingly similar case.The defendants, two nationals of Turkey and two of Serbia-Montenegro, were arrested in the course of different criminal investigations. They were informed of their rights as defendants as guaranteed by Germany's law of criminal procedure. The prosecuting authorities failed, however, to provide information on the defendants’ right to contact the consular staffs of their own countries in compliance with the VCCR. Three defendants were found guilty of murder and sentenced to lifetime imprisonment by the district court (Landgericht) of Braunschweig. The district court of Hamburg found the fourth defendant guilty of a robbery that resulted in the death of a victim, and sentenced him to eleven years’ imprisonment. Since the defendants refused to make statements, the criminal courts relied, inter alia, on the testimony of the police officers questioning the defendants after their various arrests. During the subsequent criminal proceedings, the defendants, presumably out of ignorance, made no attempt to invoke their consular rights, and the district courts seemed to be equally unaware of those rights.

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

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.

Commentary: Judicial Remedies for Treaty Violations in Criminal Cases: Consular Rights of Foreign Nationals in United States Death Penalty Cases

Litigation over the right of detained foreign nationals to be notified of their right to seek consular assistance in death penalty cases is important to the more than 80 foreign nationals currently on death row in the United States. It also raises more general questions about the role of international law and of international courts in sensitive criminal cases before national courts. International courts and litigants may enhance the likelihood of compliance in such cases by insisting on fair and deliberate procedures, on transparent and thoroughly articulated reasoning, and on prudent shaping of remedies.

List of Current Proceedings: Update

On 2 November 1992, Iran filed an application instituting proceedings against the United States in respect of a dispute arising out of the attack on and the destruction of three offshore oil production complexes. In it, Iran contended that these acts constituted a fundamental breach of various provisions of the Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, signed in 1955.

List of Current Proceedings: Update

On 2 November 1992, Iran filed an application instituting proceedings against the United States in respect of a dispute arising out of the attack on and the destruction of three offshore oil production complexes. In it, Iran contended that these acts constituted a fundamental breach of various provisions of the Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, signed in 1955.

Washington and treaty‐making with the Sultan of Muscat and Oman

Replacing an 1833 treaty the last remaining treaty granting the United States extraterritorial rights on 28 April 1959 the United States Senate ratified a new Treaty of Amity, Economic Relations and Consular Rights, Friendship and Commerce with the ruler of the largest Persian Gulf State, the Sultan of Muscat and Oman and Dependencies. Washington had been eager to conclude the new agreement because American business interests were involved in the search for oil in the Persian Gulf.1 Treatymaking with Muscat-Oman depended on the will of one individual, Sultan Said bin Taimour.