Douglass Cassel

HUMAN RIGHTS AND BUSINESS RESPONSIBILITIES IN THE GLOBAL MARKETPLACE

Communism lost the Cold War, not to pure free market capitalism, but to a range of diverse economic systems based on varying degrees and forms of social regulation of the market. Such social regulation was possible because both polities and economies were primarily national. Since the end of the Cold War, there has been rapid globalization of the economy, but not of effective social regulation. Incipient global political institutions are too weak to regulate global corporate power, while national governments no longer have sufficient reach to regulate large multinationals. Corporate self-regulation has begun, but only haltingly and mostly ineffectively.

Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities

The last two decades of the Cold War saw human rights reach a low ebb in Latin America. From Argentina’s Dirty War and Chile’s General Pinochet in the South, to bloodbaths of peasants in El Salvador and indigenous peoples in Guatemala in the North, the continent was overrun by serious violations of human rights. Few countries escaped. Even today the region’s two largest nations, Brazil and Mexico, suffer widespread and systematic patterns of police torture (among other abuses), while massive violence stalks Colombia and

International Remedies in National Criminal Cases: ICJ Judgment in Germany v. United States

In Germany v. United States (2001), the International Court of Justice ruled that the Vienna Convention on Consular Relations confers judicially enforceable rights on foreign nationals detained for prolonged periods or sentenced to severe penalties without notice of their right to communicate with their consulates. The Court also ruled that states which fail to give timely notice cannot later invoke procedural default to bar individuals from judicial relief. However, the Court did not clearly address other issues, such as requiring individuals to show prejudice to the outcome of the trial, or denial of certain remedies for Convention violations, which may effectively foreclose relief. 1. THE JUDGMENT AND ITS IMPACT IN A NUTSHELL In deciding the merits of Germany v. United States, the International Court of Justice (‘ICJ’) for the first time intervened definitively, albeit partially, in domestic criminal proceedings. The Court ruled that the Vienna 15 Leiden Journal of International Law 69–86 (2002)  2002 Kluwer Law International HAGUE INTERNATIONAL TRIBUNALS * Director, Center for International Human Rights, Northwestern University School of Law, Chicago. The author is counsel for the Consul General of the Republic of Poland in the case of People v. Madej, 193 Ill.2d 395 (Ill.S.Ct. 2000), cert. denied, 121 S.Ct. 2262, rehearing in light of Germany v. US denied, ___ U.S. ___ (2001), motion for review in light of Germany v. US denied, ___ Ill.2d ___ (2001). He was also counsel for two amici curiae before the Inter-American Court of Human Rights in the proceedings on Advisory Opinion OC-16. 1. Case concerning the Vienna Convention on Consular Relations (Germany v. United States of America), No. 104, Judgment, 27 June 2001 (‘LaGrand case’) (hereinafter ‘Judgment’). This and other ICJ documents cited herein are accessible at http://www.icj-cij.org. For comment on the provisional measures stage of the case and background on the death penalty and foreign nationals in the United States, see D. Cassel, Judicial Remedies for Treaty Violations in Criminal Cases: Consular Rights of Foreign Nationals in United States Death Penalty Cases, 12 LJIL 851 (1999) (quoted by Germany before the ICJ, Verbatim Record, 13 November 2000, CR 2000/26, M. Paulus, para. 75). 2. In two previous instances, including an earlier phase of this case, the ICJ indicated provisional measures directing the US not to execute foreign nationals until the ICJ could rule on the merits of claims brought by their governments challenging violations of consular rights under the Convention. Paraguay v. US, Request for the Indication of Provisional Measures, Order of 9 April 1998; Germany v. US, Request for the Indication of Provisional Measures, Order of 3 March 1999. Convention on Consular Relations confers judicially enforceable rights on foreign nationals detained for prolonged periods or sentenced to severe penalties without being given prompt notice of their right to communicate with their consulates. It further ruled that state parties to the Convention which fail to give prompt notice may not later invoke procedural default to bar foreign nationals from judicial relief. The ICJ thus rejected some but not all of the grounds upon which US courts have denied relief for violations of consular rights. The case was brought before the ICJ in 1999. Germany sued the US on behalf of itself and its national, Walter LaGrand, who had been convicted of murder and sentenced to death and was about to be executed by the state of Arizona. Along with his brother, executed days earlier, Walter had not been timely notified of his consular rights. The brothers finally learned of their consular rights 10 years after their arrest and attempted to raise the violations in court. However, US judges ruled that they were procedurally barred for not raising them earlier. Claiming that it learned only recently that Arizona officials had known since early on that the LaGrands were German nationals, Germany asked for and got an ICJ order indicating provisional measures directing the US to “take all measures at its disposal to ensure that Walter LaGrand is not 70 International Remedies in National Cases 15 LJIL (2002) 3. 1963 Vienna Convention on Consular Relations, 21 UST 77, TIAS No. 6820, 596 UNTS 261 (hereinafter ‘Convention’). 4. Formally the ICJ’s decision “has no binding force except between the parties and in respect of that particular case,” ICJ Statute, Art. 59. But in this case, responding to Germany’s request for assurances, the ICJ ordered the US to afford judicial relief to German nationals in certain future cases. Judgment, para. 128(7). Under Art. 94 of the United Nations Charter, the US “undertakes to comply” with ICJ decisions “in any case to which it is a party.” As a treaty of the US, the UN Charter is also the “supreme law of the land” for purposes of domestic law. United States Constitution, Art. VI. At least one judge expects the US to afford the same relief to foreign nationals from countries other than Germany. In a separate Declaration, President Guillaume noted that “subparapraph (7) does not address the position of nationals of other countries [...]. However, in order to avoid any ambiguity, it should be made clear that there can be no question of applying an a contrario interpretation to this paragraph.” Declaration of President Guillaume. The majority of the Court likely agrees, even if it does not say so explicitly. (President Guillaume’s separate reference to “individuals sentenced to penalties that are not of a severe nature” is discussed in note 93, infra.) 5. For a summary of the facts and US proceedings, see Cassel, supra note 1, at 868–870. 6. Judgment, paras. 23, 28 and 29. 7. Judge Buergenthal expressed “serious doubts about the legitimacy” of this claim. Adding that even “assuming that Germany did not actually know these facts, it certainly had no excuse for not knowing them,” he dissented from the admissibility of Germany’s claim for breach of the provisional measures order. Dissenting Opinion of Judge Buergenthal, para. 12. In his view, Germany “had no good reason for not bringing its request for provisional measures to the Court at least a year or two earlier, if not much earlier.” Id. para. 23. Germany’s “litigation strategy” (id.) “amounted to procedural misconduct prejudicial to the interests of the United States as a party [...],” rendering its claim inadmissible. Id., at para. 24. While the Court nonetheless found Germany’s claim admissible, it agreed that Germany “may be criticized for the manner in which these proceedings were filed and for their timing.” Judgment, para. 57. executed pending the final decision in these proceedings [...].” When Walter LaGrand was then executed anyway, Germany proceeded with its case on the merits before the ICJ. Germany presented three claims of rights and remedies under the Convention. It asked the Court to rule that the US failure to notify LaGrand of his consular rights violated the rights of both Germany and its national under Article 36.1 (submission 1). It further claimed that by invoking the procedural default rule after failing timely to notify LaGrand of his consular rights, the US violated Article 36.2 (submission 2). As reparation, Germany asked the ICJ to order the US to provide several assurances: not to repeat its violations, to ensure effective exercise of consular rights, and in the event of future violations involving the death penalty, to provide for effective judicial review and remedies for criminal convictions impaired by the violations (submission 4). The US opposed most of Germany’s claims. It also objected that Germany was in effect asking the ICJ to become an ultimate court of criminal appeals. Nonetheless the Court ruled: 1. Individual rights: The Convention confers rights on individuals to be notified of their right to communicate with their consulates. 2. Judicial remedies: Where individuals not so notified are then detained for a prolonged period, or convicted of crimes and sentenced to severe penalties, remedies are not limited to diplomatic apologies and undertakings, but must include domestic judicial remedies on behalf of individuals. By means of their own choosing, states must allow review and reconsideration of such convictions and sentences to take account of the violations. 3. Procedural defaults: Where a state fails in its duty to notify a detained foreign national of his right to consular communication, it may not later invoke procedural default to bar the individual from judicial relief. The ICJ ruling thus rejects at least two grounds on which foreign nationals have sometimes been denied judicial relief in the US – the mistaken view that the Convention does not confer judicially enforceable indiDouglass Cassel 71 8. Order, 3 March 1999, supra note 4, at para. 29(I). 9. Judgment, para. 34. 10. Judgment, para. 12(1). Submission 1 also asserted a violation of Art. 5 of the Convention, which the ICJ found unnecessary to address. Id., at paras. 12(1), 73. 11. Id., at para. 12(2). 12. Id., at para. 12(4). 13. Id., at paras. 77, 128(3). 14. Id., at paras. 123, 125, 128; see note 59 infra. 15. Id., at paras. 91, 128(4). vidual rights, and the use of procedural default to bar late claims presented by individuals who were not timely notified of their consular rights. However, its practical impact in the US will probably be quite limited, because it leaves open other grounds. Many US courts have denied relief on the ground that particular remedies or remedial theories, such as suppression of incriminating statements, dismissal of indictments, or relief from ineffective assistance of counsel, are unavailable under the Convention. Others – or often the same courts, relying on multiple grounds – deny remedies unless violations are shown to prejudice the outcome of 72 International Remedies in National Cases 15 LJIL (2002) 16. US v. Li, 206 F.3d 56, 66 (1st Cir.) (en banc) (Co

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.

The inter-American system of human rights

1. Regional Protection of Human of Human Rights: the Inter American Achievement 2. The Rise of the Inter American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox 3. The Inter American Commission on Human Rights: Its Organisation and Examination of Petitions and Communications 4. The Role of Country Reports in the Inter American System of Human Rights 5. The Operation of the Inter American Court of Human Rights (1979-1996) 6. Reparations in the Inter-American System 7. The Interaction Between the Political Actors of the OAS, the Commission and the Court 8. The Civil and Political Rights Protected in the Inter-American System 9. The Protection of Economic, Social, and Cultural Rights under the Inter-American System of Human Rights 10. The Protection of Indigenous Peoples in the Inter-American System 11. Responses to Amnesties by the Inter American System for the Protection of Human Rights 12. States of Emergency in the Inter American System 13. The Inter American System at the Dawn of a New Century: Recommendations for Improvement of its Mechanism of Protection 14. Procedural Shortcomings in the Defence of Human Rights: An Inequality of Arms Appendices