World - Consular access in spotlight

A recent ruling by the International Court of Justice in a case where a Mexican national was executed in Texas has turned the spotlight once again on the Vienna Convention on Consular Relations. The judgment held the execution, carried out in 2008, a violation of the United States’ obligations under the VCCR, a multilateral treaty that codifies the privileges and immunities of consular officials. Article 36 of the VCCR stipulates that authorities must immediately int imate foreigners held in custody of their right to inform the respective consulates of the detention and allow them unfettered access to related services, provided that these are exercised in conformity with domestic laws, which in turn should give full effect to the Convention. Moreover, State parties to the Optional Protocol of the VCCR are bound by the ICJ’s decisions on the interpretation and application of the various provisions of the Convention. The world court’s latest ruling — which has major implications for criminal proceedings against foreign nationals involved, for instance, in corporate fraud and terrorist activities — is yet another attempt to clarify its jurisdiction vis-À-vis national laws of member states. If its 2001 verdict underscored the binding nature of the provisional orders it had issued staying the capital punishment awarded to two Germans, the 2004 judgment called upon the U.S. to review the convictions of 51 Mexican nationals, who were not informed of their rights.
However, the world court’s jurisdiction over the U.S. domestic laws became a ticklish question after Washington’s withdrawal in 2005 from the Protocol and the Supreme Court’s 2008 verdict holding that decisions of the ICJ were not binding with respect to domestic laws. A further complication arises from the fact that federal and state laws preclude the possibility of reopening cases to examine claims not brought up in earlier trials. Attempts are under way to enact fresh legislation to ensure effective compliance with ICJ’s rulings. These are encouraging signs of a new commitment to international cooperation from one of the world’s advanced democracies, moving away from its unilateralist stance of recent past. Washington’s rejoining the Optional Protocol will be in the interest of both foreign nationals and U.S. citizens resident abroad. Nobody knows this better than the U.S. which invoked the Protocol at the ICJ in support of 52 of its men taken hostage by Iran in 1979.