Under Article 36 of the Vienna Convention on Consular Relations (VCCR or Convention), foreign nationals have the right to consular notification when detained and/or arrested in a country other than their country of nationality, assuming both the arresting country and their country of nationality have ratified the Convention. The United States ratified the VCCR in 1969. However, there is a lack of consensus among domestic courts in the United States concerning whether Article 36 confers an individual right to consular notification. The subject is highly contested, and most courts have refrained from definitively answering the question. The Supreme Court has held that even if a right does exist, a violation of Article 36 does not warrant the suppression of evidence in a judicial proceeding. Accordingly, state procedural default rules will usually bar any such claim.

This Note will argue that the right to consular notification under Article 36 is an individual right and, in some circumstances, a foreign national defendant can be prejudiced in the absence of being informed of this right. This Note will also analogize Article 36 with the constitutional right to due process, the right to a fair trial, the right against self-incrimination, and the right to an attorney. Finally, this Note will propose a new statute conferring an individually enforceable right stemming from Article 36, listing preventative measures to lessen the number of Article 36 violations, and enacting concrete remedies should a violation occur.

Continue reading The Right to Consular Notification: The Cultural Bridge to a Foreign National’s Due Process Rights