DETERMINING THE REMEDY FOR VIOLATIONS OF ARTICLE 36 OF THE VCCR: REVIEW AND RECONSIDERATION AND THE CLEMENCY PROCESS AFTER AVENA

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. Interpreting this provision in the LaGrand case, the International 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 or Article 36(1). 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 US following proceedings in which competent authorities failed to comply with their obligations under 36(1). The ICJ views Article 36, paragraph 1, as establishing an interrelated regime designed to facilitate the implementation of the system of consular protection. The importance of the judgment in Avena cannot be overstated. Although the ICJ found a breach of Article 36, it did not firmly clarify what constitutes the appropriate remedy.