Determining the Remedy for Violations of Article 36 of the VCCR: Review and Reconsideration and the Clemency Process after Avena
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DETERMINING THE REMEDY FOR VIOLATIONS OF
ARTICLE 36 OF THE VCCR: REVIEW AND
RECONSIDERATION AND THE CLEMENCY
PROCESS AFTER AVENA
Harry S. Clarke, III*
I. INTRODUCTION
Article 36 of the Vienna Convention on Consular Relations
(VCCR) requires that foreign nationals be notified of the right to
confer with consular officials when they are detained by law
enforcement officials in member states.1
Interpreting this provision in the LaGrand case,2 the Interna-
tional Court of Justice (ICJ) determined that if a receiving state
fails to inform a detained foreign national of his rights under the
VCCR, it is in violation of Article 36(1).3 In January 2003 Mexico
initiated proceedings against the United States before the ICJ for
violations of Article 36(1).4 In the Case Concerning Avena and Other
Mexican Nationals (Avena), Mexico alleged that no fewer than fifty-
four Mexican nationals had received the death penalty in the
United States following proceedings in which competent authori-
ties failed to comply with their obligations under 36(1).5
The United States acknowledged its failure to provide consular
notification to many of the respective Mexican nationals: thus,
there was no real dispute between Mexico and the United States on
* J.D. 2005, The George Washington University Law School; A.B. 2002, Duke Uni-
versity. Special thanks to Dean Susan Karamanian for her ideas and enthusiasm in starting
this Note. Thanks to Christina Dimock and Mark Seidman for their thoughtful comments
and suggestions. Thanks to the staff of The George Washington International Law Review for
their hard work.
1. Vienna Convention on Consular Relations (VCCR), art. 36, Apr. 24, 1963, 21
U.S.T. 77, 596 U.N.T.S. 261.
2. LaGrand Case (F.R.G. v. U.S.), 2001 l.C.J. 466 (June 27).
3. William J. Aceves, International Decision: LaGrand (Gennany v. United States) Judg-
ment, 96 AJ.I.L. 210, 215 (2002).
4. Application Instituting Proceedings, Avena and Other Mexican Nationals (Mex. v.
U.S.), 2004 I.C.J. 128 (Jan. 9, 2003) [hereinafter Avena Application].
5. Id. at 1.](ViewImageLocal?handle=hein.journals/gwilr38&div=10&collection=&method=preview&ext=.png&size=3)
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