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On June 27, 2001, the International Court of Justice (ICJ) held in the case of Germany v. United States of America (LaGrand) that Article 36 of the Vienna Convention on Consular Relations ("VCCR") affords an individually enforceable right to consular access upon arrest or detention in a foreign country.' In the United States, death penalty opponents applauded the ICJ's finding for its promise of greater due process protection, while states' rights advocates criticized the decision as an unlawful exercise of criminal appellate jurisdiction. LaGrand, in theory, resolves many questions that have plagued American courts: whether Article 36 rights are vested in an individual or a signatory state; whether the right may be privately enforced; whether domestic procedural rules may bar Article 36 claims in certain circumstances; and whether the ICJ's provisional measures are binding upon member states.

In this Note, I explore the potential impact of LaGrand upon domestic American criminal jurisprudence with an eye toward what the case demonstrates for America as a member of international institutions more generally. In Part I, I describe the central holdings of the ICJ in LaGrand, noting how dramatically LaGrand departs from what American courts have previously interpreted the VCCR to require. Having demonstrated the enormity of LaGrand's procedural implications, I examine early cases after LaGrand and what they suggest about the American judicial response to the ICJ decision in Part II. I argue that American courts err to the extent that they recognize little shift in law after LaGrand.

Finally, in Part III, I argue that American courts are well-equipped to heed this instruction, for they are experienced in balancing rights and employing prejudice analysis where the criminal adjudicative process has been tainted. These models should be a template for the similar treatment of Article 36 violations. Such a model allows the courts to factually distinguish between various Article 36 claims and to tailor narrow remedies on a case-by-case basis. In fact, meaningful application of the LaGrand opinion in the United States may enhance our own constitutional principles of due process while simultaneously enhancing our role as a member of international institutions.



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