Oregon Supreme Court holds that Vienna Convention does not create rights that individual foreign nationals may assert in U.S. criminal proceedings
In December 1999, Oregon police arrested Moises Sanchez-Llamas (defendant), a Mexican citizen (defendant), after a shoot-out. The police never notified defendant that he had an international law right to communicate with the Mexican Consulate about his predicament.
Later, defendant moved to suppress his post-arrest incriminating statements as obtained in contravention of the Vienna Convention on Consular Relations (VCCR) [24 April 1963, 21 U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S. 261 (1969)]. The trial court held that any violation of the VCCR that may have taken place did not require suppression of his statements.
The intermediate Court of Appeals affirmed, and defendant obtained review before the Supreme Court of Oregon. The Court affirms, on the theory that Article 36 of the VCCR does not create rights that individual foreign nationals may assert in a criminal proceeding.
Both the U.S. and Mexico are parties to the VCCR. Article 36 requires "competent authorities" to inform the respective consulate when a foreign national is arrested, and to permit the consulate to communicate with the detainee. The detainee must be informed "without delay" of those "rights."
Petitioner contended that the VCCR created an individual right of consular access and notification. Further, he claimed that the VCCR, as a ratified U.S. treaty, is part of the "supreme law of the land" and thus on the same level as a federal statute. Therefore, the VCCR being "self-executing," it is immediately enforceable by individuals in the American courts.
The Supreme Court is unpersuaded. "... [T]hat is an issue of federal law, and the federal cases suggest that treaties are "self-executing,' in the sense of permitting enforcement by an individual right of action, only when a specific intent to create such rights can be discerned from the treaty as a whole. ... In fact, the general rule, widely recognized in the federal courts, is that rights created by international treaties belong to the signatory state and are not enforceable in American courts by private individuals. ... [...]"
"The rationale for the foregoing general rule (which in substance amounts to a presumption against the creation of individual, judicially enforceable rights) is obvious. ...The necessary and beneficial corollary of [the separation of powers] is that, in matters of international relations, the nation speaks through a single authoritative voice " the president. That beneficial effect, and the separation of powers principle itself, would be undermined if the Judicial Branch were to presume to enforce treaty provisions on behalf of individuals when its authority to do so is less than clear. ..."
"... [W]e do not mean to say that a court never can read a treaty to create privately enforceable rights. Certainly, the noted presumption can be overcome by explicit wording and even by provisions that necessarily imply a private right of judicial enforcement. For example, courts have allowed individuals judicially to enforce treaties that govern the rights of foreign nationals to inherit property, despite the absence of explicit treaty wording ... " [Slip op. 8-12]
In the Court's view, the mere use of the word "rights" in the VCCR does not indicate the signatories' intent to allow enforcement by individuals. "Neither does any other wording in the treaty suggest an intent to create individual rights that are enforceable in a judicial proceeding. In fact, the purposes stated in the preamble (to "contribute to the development of friendly relations among nations') and the initial clause of Article 36 ("with a view to facilitating the exercise of consular functions relating to nations of the sending state') both suggest that the treaty and Article 36 are concerned with relationships and obligations among nations, not with individual rights."
"Finally, there is nothing about the subject matter of the VCCR that would compel an inference that a private right of action was intended. In that regard, we think it is perfectly reasonable to read the treaty as leaving enforcement of Article 36 entirely to the signatory states."
"In the absence of any such clear indication to the contrary, we must conclude that the obligations that Article 36 describes are enforceable only by the affected signatory states and not individual detainees." [Slip op. 14-16]
[EDITORIAL NOTE: In letter dated March 7, 2005, from U.S. Secretary of State to U.N. Secretary General, U.S. has announced its withdrawal from Optional Protocol to VCCR, see IN BRIEF, below, at page 47.]
Citation: State of Oregon v. Sanchez-Llamas, 338 Or. 267, 2005 WL 552819 (Sup. Ct. Ore. March 10)(en banc).
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