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U.S. Supreme Court declines to issue stay of execution for Mexican defendant, who alleges prejudicial error resulting from violation of Vienna Convention on Consular Relations in absence of congressional implementation of Convention
Jose Ernesto Medellin (Petitioner), a Mexican citizen on death row in Texas, applied for a stay of execution. A jury had convicted him of raping and strangling two teenaged girls. He argued that either the U.S. Congress or the Texas Legislature could determine that the International Court of Justice’s (ICJ’s) ruling in this matter could lead to vacating his death sentence. In 2004, the ICJ held in the Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America (Judgment) [31 March 2004] ICJ, available at http://www.icj cij.org), that the 51 Mexican nationals (including Medellin) sentenced in various states of the U.S. were entitled to review and reconsideration of their convictions and sentences because of a breach of the consular notification requirements of the Vienna Convention on Consular Relations [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S 261; in force for U.S. Dec. 24, 1969].
Justice Scalia, writing for the narrow majority, denied the application. He held that that the possibility of legislative action is too remote to stay the execution. “It is up to Congress whether to implement obligations undertaken under a treaty which (like this one) does not itself have the force and effect of domestic law sufficient to set aside the judgment or the ensuing sentence, and Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in Medellín v. Texas, 552 U.S. ___ (2008). This inaction is consistent with the President’s decision in 2005 to withdraw the United States’ accession to jurisdiction of the ICJ with regard to matters arising under the [Consular] Convention.”�
“The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that Petitioner was not prejudiced by his lack of consular access.”� [Slip Op. 1]
The decision resulted in several dissents that questioned the wisdom of the Court’s decision. Justice Stevens noted that, “… waiting a short time to guarantee that the views of the Executive have been given respectful consideration is only prudent. Balancing the honor of the Nation against the modest burden of a short delay to ensure that the breach is unavoidable convinces me that the application for a stay should be granted.”� [Slip Op. 2].
Justices Souter, Ginsberg and Breyer also dissented. Justice Breyer’s dissent criticized the majority for failing to acquiesce to the four justices’ desire for a stay. “A sufficient number of Justices having voted …., it is particularly disappointing that no Member of the majority has proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received.”� [Slip Op. 3].
Citation: Medellin v. Texas, 2008 WL 3821478; 77 U.S.L.W. 3073 (U.S. 2008).
Filed in: 2008 International Law Update, Issue8
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Second Circuit rules that Article 36 of Vienna Convention does not confer judicially enforceable right on foreign arrestee to be informed that he could obtain assistance from his consular officials which he could enforce through litigation under Alien Tort Claims Act or Convention itself
Ricardo de los Santos (Plaintiff) was a citizen of the Dominican Republic whom New York authorities arrested in 1992 and charged with attempted robbery. He pled guilty and the judge sentenced him to six months’ in prison and five years’ probation.
Three years later, Plaintiff filed a million dollar suit pro se in a New York federal court under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350. He alleged that the local prosecutor and City Police had violated Article 36 of the Vienna Convention on Consular Relations [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S 261; in force for U.S. Dec. 24, 1969] by failing to tell him that he could contact the Dominican consulate for assistance. The District Court dismissed Plaintiff’s suit sua sponte under Civil Rule 12(b)(6).
Plaintiff then obtained counsel, and appealed the dismissal. He contended that Convention Article 36 does confer an justiciable right to be told about the availability of consular notification; and that federal courts may enforce this right not only under ATCA, but also under the civil rights act (42 U.S.C. Section 1983) and directly under the Convention itself. The U.S. Court of Appeals for the Second Circuit, however, affirms.
The Court points to the split between the U.S. Courts of Appeals on these questions and to the fact that the Supreme Court has not yet authoritatively answered it. (Noteworthily, four of the nine current Justices have expressed their agreement with Plaintiff’s theory in Sanchez Llamas v. Oregon, 126 S. Ct. 2669, 2677 78 (2006).
In the Head Money Cases, 112 U.S. 580 (1884), the Supreme Court declared that a treaty “is primarily a compact between independent nations.”� Id. at 598. As such, “[i]t depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.”� Id.
The Head Money Court also acknowledged that treaties may also create individual rights “which partake of the nature of municipal [i.e., domestic] law, and which are capable of enforcement as between private parties in the courts of the country.”� Id. Noting that the Supremacy Clause places international treaties on the same legal footing as federal law, the Court concluded that “[a] treaty, then, is a law of the land as an act of [C]ongress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.”� Id. at 598 599.
“And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would a statute.”� Id. at 599.
The Circuit Court then observes that it must resolve the key question as a matter of treaty interpretation. In a textual analysis of Article 36, the Court observes that the Convention refers to the detaining state’s obligations to, upon request, inform a foreign detainee’s consulate of the detention and allow the detainee to contact his consulate as “rights”� about which the authorities must notify the detainee.
Nothing in the text indicates, however, that the detaining state’s obligation in Convention ¶ 1(b) to inform the foreign national “without delay of his rights under this sub paragraph,”� is an individual right. The Convention makes no mention of whether and how individuals are to enforce the specified rights contained therein. The Court concludes that the rights Article 36 does confer are a means of implementing the treaty obligations as between the signatory States.
The context of the Convention supports this conclusion. The first clause of ¶ 1 of Article 36 begins with the following statement of purpose: “[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State.”� Furthermore, ¶ 5 of the Conventions’ preamble states that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.”�
The motivating principles of the Convention are clearly those governing the relations of States inter se. It protects state level concerns for the “sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations.”� In the Court’s view, these passages suggest that Convention rights belong to, and are enforceable by, the States parties to the Convention through their official representatives.
Moreover, the Optional Protocol to the Convention vests compulsory jurisdiction over disputes arising under the Convention in the International Court of Justice (ICJ) which handles disputes between nations. The Court points out that individuals can benefit from Convention rights other than by private actions for damages. It then suggests four examples: “First, states parties can safeguard the rights in the Convention (and protect their nationals) through “�negotiations and reclamations.’ See Head Money Cases, supra at 598.
Second, the reciprocal nature of the Convention provides a natural incentive to receiving states to comply with its terms. For instance, in an action brought by the federal government, the U.S. can sue state and local governments to ensure compliance with the Convention. Third, the lack of any privately enforceable right to damages for a violation of Article 36(1)(b)(third) would not prevent a domestic court or magistrate from inquiring whether anyone has informed a foreign national before it that he or she may contact his consulate [at that point], thus satisfying the notice obligation. Finally, a detained alien could petition officials of a detaining authority, including where appropriate, the courts, to comply with the obligations set forth in Article 36.
The Court notes that the Constitution assigns the mechanisms for establishing and enforcing international treaties to the Executive and Legislative branches. There is, therefore, a strong presumption against the courts’ enforcing of international treaty obligations at an individual’s behest.
Moreover, the Court says, its precedents and those of the other Courts of Appeals and the Supreme Court strongly support the principle that, in the absence of express language to the contrary, treaties do not create privately enforceable rights for private individuals. The Court concludes by noting that “there are a number of ways in which the drafters of the Vienna Convention, had they intended to provide for an individual right to be informed about consular access and notification that is enforceable through a damages action, could have signaled their intentions to do so . . . That they chose not to signal any such intent counsels against our recognizing an individual right that can be vindicated in a damages action in this case.”� [Slip op. 25 26].
Next, the Court bolsters its conclusion by referring to the position of the Department s of State and Justice, which jointly submitted an amicus curiae brief on behalf of the U.S. in support of New York. Following Medellin v. Texas, 552 U.S. ______ (2008), the Court notes that it places “great weight”� on the Executive’s interpretation of a treaty and finds Plaintiff’s opposing arguments unpersuasive.
The Court then addresses ICJ jurisprudence which suggests that the Vienna Convention does create privately enforceable rights. The Court first notes that “[i]n contrast to the “�great weight’ we must accord the views of our Executive, the Supreme Court has instructed that we “�should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such.’ Breard v. Greene, 523 U.S. 371, 375 (1998). We are not bound either to give that interpretation any particular weight when considering the text and context of a treaty, or to treat it as having any dispositive effect in the event of ambiguity.”� [Slip op. 28 29]
The Court is not persuaded by the ICJ’s assertion in Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [31 March 2004] ICJ (available at http://www.icj cij.org) that “the individual rights. . . under ¶ 1(b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States”� [Slip op. 29]. The ICJ offers no rationale to support its conclusion.
To determine the intentions of the drafters, the Court then considers the travaux preparatoires of the Convention. Finding that the travaux offer no clear guidance on the issue, the Court concludes that in any event, “scattered examples drawn from the travaux to support Plaintiff’s position would not defeat the deference … we owe to the clear and consistent views of the United States.”� [Slip op. 31].
The Court next considers whether an alleged violation of Article 36(1)(b)(third) gives rise to a claim pursuant to the ATCA for a breach of customary international law: “To form the basis of a ATCA suit, the alleged tort must be “�defined with a specificity comparable to the features of the 18th century paradigms’ of torts in violation of the law of nations “� violations of safe conducts, offenses against ambassadors, and piracy. Sosa v. Alvarez Machain, 542 U.S. 692, 725 (2004). These paradigmatic examples involve “�offences . . . principally incident to whole states or nations and not [to] individuals seeking relief in court.’ Id. at 720. Plaintiff has pointed to no sources which evince support for the specific customary international law tort proposed here. …”� [Slip op. 31]
Citation: Mora v. People of the State of New York, 524 F.3d 183 (2d Cir. 2008).
Filed in: 2008 International Law Update, Issue5
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U.S. Supreme Court, by vote of 6 to 3, declines either to apply exclusionary rule or to fashion exception to state forfeiture rules when state authorities fail to notify foreign detainees of their rights to contact their respective consulates pursuant to Article 36 of Vienna Convention on Consular Relations
Article 36(1)(b) of the Vienna Convention on Consular Relations (April 24, 1963, 21 U.S.T. 77, 100-101 [1970]; T.I.A.S. No. 6820; 596 U.N.T.S. 261) (VCCR) provides, inter alia, that a member state holding foreign detainees shall notify the prisoners that they may contact their consular officials.
Supreme Court docket No. 04-10566 involves Moises Sanchez-Llamas (Petitioner 04). He is a Mexican national whom U.S. police arrested after an exchange of gunfire in Oregon. At the time of his arrest, the police gave him his Miranda warnings in both English and Spanish. They failed to tell him, however, that he could have the Mexican Consulate notified of his detention. During police interrogation, Petitioner 04 made several incriminating statements.
The Oregon authorities charged Petitioner 04 with attempted aggravated murder, attempted murder, and other offenses. Before trial, he moved to suppress the inculpatory statements arguing that he had made them involuntarily and that the authorities had failed to comply with VCCR Article 36. The trial court denied the motion, and the case went to trial.
The court convicted Petitioner 04. On appeal, he argued that the Article 36 violation demanded the suppression of his statements. The Oregon Court of Appeals, however, affirmed and the U.S. Supreme Court granted certiorari.
Docket No. 05-51 involves Mario Bustillo, a Honduran national (Petitioner 05). Virginia authorities charged him with murdering James Merry in Springfield, Virginia. At trial, the defense argued that a third party was the true killer. The trial court convicted Petitioner 05 of first-degree murder. A Virginia appellate court affirmed his conviction.
Petitioner 05 then petitioned for a writ of habeas corpus in a Virginia court, contending for the first time that the state authorities had violated his right to prompt consular notification under VCCR Article 36. He urged that the Honduran Consulate could have helped him find the true culprit prior to trial. The state court dismissed Petitioner 05′s VCCR claim for his failure to raise it at trial or on direct appeal. Petitioner 05 objected that state procedural default rules should not apply to Article 36 claims.
In these cases, the U.S. Supreme Court granted certiorari on the following issues: (1) whether suppression of evidence is a proper remedy for a violation of VCCR Article 36; and (2) whether a state court may regard an Article 36 claim as forfeited under state procedural rules where a defendant has failed to timely raise the claim. In a 6 to 3 vote, the Court affirms the judgments of the Supreme Courts of Oregon and Virginia.
The Court first points out that the VCCR itself provides no specific remedies for breaches of Article 36. Whether there should be a rule that keeps out evidence obtained through a breach of Article 36 thus remains a matter of domestic U.S. law. Noteworthily, the remedy Petitioner 04 seeks here is not one he could obtain in any of the other 169 VCCR nations.
Moreover, even if it wished to do so, the Supreme Court is unable to require a state court to suppress Petitioner 04′s statements by calling upon a “supervisory power.”As Dickerson v. United States, 530 U.S. 428, 438 (2000), has declared: “it is beyond dispute that we do not hold a supervisory power over the courts of the several States.” [2679].
Furthermore, if authority for the enforcement of a particular judicial remedy in state court should exist, it would have to come from the VCCR itself. “[W]here a treaty provides for a particular judicial remedy, there is no issue of intruding on the constitutional prerogatives of the States or the other federal branches. Courts must apply the remedy as a requirement of federal law. Cf. 18 U.S. C. Section 2515; United States v. Giordano, 416 U.S. 505, 524-525 (1974). But where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.” [2680]
Petitioner 04 also urged that the VCCR needs to have an effective judicial remedy to safeguard Article 36 rights. Be that as it may, the Court decides that an exclusionary rule would not be appropriate here. The U.S. courts mainly use exclusionary rules to deter law enforcement officials from obtaining inculpatory statements or other evidence from breaches of a defendant’s constitutional rights or analogous statutory rights. A violation of VCCR Article 36, however, is not equivalent to a breach of constitutionally protected rights.
Moreover, the violation of the right to consular notification is at best remotely connected to the gathering of evidence. “Article 36 has nothing whatsoever to do with searches or interrogations. Indeed, Article 36 does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention — not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention. In most circumstances, there is likely to be little connection between an Article 36 violation and evidence or statements obtained by police.” [2681]. Finally, the suppression of incriminating and probative evidence is a drastic remedy and by no means the only conceivable way to vindicate VCCR rights.
In Petitioner 05′s case, the Virginia courts denied his Article 36 claim because he had failed to timely raise it at trial or on direct appeal. The general rule in federal habeas cases bars a defendant who fails to raise a claim on direct appeal from raising the claim collaterally. Petitioner contended, however, that the Court should not approve the application of state procedural default rules to Article 36 claims because this would unduly dilute the Article.
Petitioner tried to distinguish his case from Breard v. Greene 523 U.S. 371, 375 (1998) where the Court decided that “the procedural rules of the forum State govern the implementation of the treaty in that State.” [2682-83]. He points out, however, that the International Court of Justice at the Hague (ICJ) has since interpreted the Convention to preclude the application of procedural default rules to Article 36 claims.
Specifically, Germany brought the LaGrand case (LaGrand (Germany v. United States of America), 2001 I.C.J. 104, paragraph 77 (June 27), 2001 International Law Update 102) and Mexico filed the Case Concerning Avena and other Mexican Nationals (Case Concerning Avena and other Mexican Nationals (Mexico v. United States), 2004 I.C.J. No. 128 (March 31), 2004 International Law Update 52) before the ICJ. The ICJ ruled that applying procedural default rules unduly prevented foreign governments from assisting their citizens. Petitioner 05 argued that these ICJ rulings would justify a modification of Breard.
The Supreme Court, however, is not persuaded. “Nothing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts. The ICJ’s decisions have ‘no binding force except between the parties and in respect of that particular case,’ Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T. S. No. 993 (1945).” [2684]
While the Court gives respectful consideration to LaGrand and Avena, it concludes that the ICJ’s interpretation is inconsistent with the basic procedural framework of the American legal system. The Court is confident that the established principles of U.S. domestic law can protect the rights of foreign detainees without undermining the importance of the VCCR. The relief Petitioner 05 requests is extraordinary and the Court declines to apply the more liberal procedural rules the Court might apply to the forfeiture of Constitutional claims.
Citation: Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 74 U.S.L.W. 4493 (2006).
Filed in: 2006 International Law Update, Issue7
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U.S. Supreme Court, by vote of 6 to 3, declines either to apply exclusionary rule or to fashion exception to state forfeiture rules when state authorities fail to notify foreign detainees of their rights to contact their respective consulates pursuant to Article 36 of Vienna Convention on Consular Relations
Article 36(1)(b) of the Vienna Convention on Consular Relations (April 24, 1963, 21 U.S.T. 77, 100-101 [1970]; T.I.A.S. No. 6820; 596 U.N.T.S. 261) (VCCR) provides, inter alia, that a member state holding foreign detainees shall notify the prisoners that they may contact their consular officials.
Supreme Court docket No. 04-10566 involves Moises Sanchez-Llamas (Petitioner 04). He is a Mexican national whom U.S. police arrested after an exchange of gunfire in Oregon. At the time of his arrest, the police gave him his Miranda warnings in both English and Spanish. They failed to tell him, however, that he could have the Mexican Consulate notified of his detention. During police interrogation, Petitioner 04 made several incriminating statements.
The Oregon authorities charged Petitioner 04 with attempted aggravated murder, attempted murder, and other offenses. Before trial, he moved to suppress the inculpatory statements arguing that he had made them involuntarily and that the authorities had failed to comply with VCCR Article 36. The trial court denied the motion, and the case went to trial.
The court convicted Petitioner 04. On appeal, he argued that the Article 36 violation demanded the suppression of his statements. The Oregon Court of Appeals, however, affirmed and the U.S. Supreme Court granted certiorari.
Docket No. 05-51 involves Mario Bustillo, a Honduran national (Petitioner 05). Virginia authorities charged him with murdering James Merry in Springfield, Virginia. At trial, the defense argued that a third party was the true killer. The trial court convicted Petitioner 05 of first-degree murder. A Virginia appellate court affirmed his conviction.
Petitioner 05 then petitioned for a writ of habeas corpus in a Virginia court, contending for the first time that the state authorities had violated his right to prompt consular notification under VCCR Article 36. He urged that the Honduran Consulate could have helped him find the true culprit prior to trial. The state court dismissed Petitioner 05′s VCCR claim for his failure to raise it at trial or on direct appeal. Petitioner 05 objected that state procedural default rules should not apply to Article 36 claims.
In these cases, the U.S. Supreme Court granted certiorari on the following issues: (1) whether suppression of evidence is a proper remedy for a violation of VCCR Article 36; and (2) whether a state court may regard an Article 36 claim as forfeited under state procedural rules where a defendant has failed to timely raise the claim. In a 6 to 3 vote, the Court affirms the judgments of the Supreme Courts of Oregon and Virginia.
The Court first points out that the VCCR itself provides no specific remedies for breaches of Article 36. Whether there should be a rule that keeps out evidence obtained through a breach of Article 36 thus remains a matter of domestic U.S. law. Noteworthily, the remedy Petitioner 04 seeks here is not one he could obtain in any of the other 169 VCCR nations.
Moreover, even if it wished to do so, the Supreme Court is unable to require a state court to suppress Petitioner 04′s statements by calling upon a “supervisory power.”As Dickerson v. United States, 530 U.S. 428, 438 (2000), has declared: “it is beyond dispute that we do not hold a supervisory power over the courts of the several States.” [2679].
Furthermore, if authority for the enforcement of a particular judicial remedy in state court should exist, it would have to come from the VCCR itself. “[W]here a treaty provides for a particular judicial remedy, there is no issue of intruding on the constitutional prerogatives of the States or the other federal branches. Courts must apply the remedy as a requirement of federal law. Cf. 18 U.S. C. Section 2515; United States v. Giordano, 416 U.S. 505, 524-525 (1974). But where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.” [2680]
Petitioner 04 also urged that the VCCR needs to have an effective judicial remedy to safeguard Article 36 rights. Be that as it may, the Court decides that an exclusionary rule would not be appropriate here. The U.S. courts mainly use exclusionary rules to deter law enforcement officials from obtaining inculpatory statements or other evidence from breaches of a defendant’s constitutional rights or analogous statutory rights. A violation of VCCR Article 36, however, is not equivalent to a breach of constitutionally protected rights.
Moreover, the violation of the right to consular notification is at best remotely connected to the gathering of evidence. “Article 36 has nothing whatsoever to do with searches or interrogations. Indeed, Article 36 does not guarantee defendants any assistance at all. The provision secures only a right of foreign nationals to have their consulate informed of their arrest or detention — not to have their consulate intervene, or to have law enforcement authorities cease their investigation pending any such notice or intervention. In most circumstances, there is likely to be little connection between an Article 36 violation and evidence or statements obtained by police.” [2681]. Finally, the suppression of incriminating and probative evidence is a drastic remedy and by no means the only conceivable way to vindicate VCCR rights.
In Petitioner 05′s case, the Virginia courts denied his Article 36 claim because he had failed to timely raise it at trial or on direct appeal. The general rule in federal habeas cases bars a defendant who fails to raise a claim on direct appeal from raising the claim collaterally. Petitioner contended, however, that the Court should not approve the application of state procedural default rules to Article 36 claims because this would unduly dilute the Article.
Petitioner tried to distinguish his case from Breard v. Greene 523 U.S. 371, 375 (1998) where the Court decided that “the procedural rules of the forum State govern the implementation of the treaty in that State.” [2682-83]. He points out, however, that the International Court of Justice at the Hague (ICJ) has since interpreted the Convention to preclude the application of procedural default rules to Article 36 claims.
Specifically, Germany brought the LaGrand case (LaGrand (Germany v. United States of America), 2001 I.C.J. 104, paragraph 77 (June 27), 2001 International Law Update 102) and Mexico filed the Case Concerning Avena and other Mexican Nationals (Case Concerning Avena and other Mexican Nationals (Mexico v. United States), 2004 I.C.J. No. 128 (March 31), 2004 International Law Update 52) before the ICJ. The ICJ ruled that applying procedural default rules unduly prevented foreign governments from assisting their citizens. Petitioner 05 argued that these ICJ rulings would justify a modification of Breard.
The Supreme Court, however, is not persuaded. “Nothing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts. The ICJ’s decisions have ‘no binding force except between the parties and in respect of that particular case,’ Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T. S. No. 993 (1945).” [2684]
While the Court gives respectful consideration to LaGrand and Avena, it concludes that the ICJ’s interpretation is inconsistent with the basic procedural framework of the American legal system. The Court is confident that the established principles of U.S. domestic law can protect the rights of foreign detainees without undermining the importance of the VCCR. The relief Petitioner 05 requests is extraordinary and the Court declines to apply the more liberal procedural rules the Court might apply to the forfeiture of Constitutional claims.
Citation: Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 74 U.S.L.W. 4493 (2006).
Filed in: 2006 International Law Update, Issue6
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Sixth Circuit rules that Vienna Consular Convention does not grant rights that would be enforceable by individuals, thus defendant cannot obtain dismissal of indictment or reversal of conviction based on United States’ noncompliance with Convention’s notice requirement
Canadian authorities arrested Chucks Emuegbunam, a Nigerian citizen, in Canada and extradited him to the U.S. on federal narcotics charges. He had allegedly provided 675.5 grams of heroin to one Johnnie Player. The district court denied defendant’s numerous pretrial motions that he filed pro se. Emuegbunam was convicted and, on appeal, challenged the U.S. failure to notify the Nigerian Embassy of his arrest because it allegedly might have helped him to procure evidence of his innocence from Nigeria. The U.S. Court of Appeals for the Sixth Circuit affirms the district court.
Article 36 of the Vienna Convention on Consular Relations (April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (1969)) requires signatories (which include the U.S. and Nigeria) to notify the diplomatic representative of foreign detainees. Defendant first complained of a possible Vienna Convention violation approximately one year after his extradition from Canada. The prosecutor later sent written notice to the Nigerian Embassy of the situation, and defendant separately sought assistance from the Embassy to procure witnesses and other evidence from Nigeria. To have a speedier trial, defendant later decided to go to trial without additional evidence from Nigeria.
In general, the rights created by an international treaty belong to the state and are not privately enforceable. The U.S. Supreme Court, however, has recognized that treaties and conventions can create individually enforceable rights in some circumstances. Without express language in the treaty, federal courts will not vindicate private rights unless it creates fundamental rights equivalent to those protected by the Constitution. As for the Vienna Convention, the U.S. Supreme Court has not yet resolved the question of whether it creates individual rights. The Sixth Circuit states in this opinion that the Vienna Convention does not create rights that are individually enforceable in federal courts.
In either case, if U.S. authorities had breached defendant’s rights under the Vienna Convention and if private individuals can claim rights under it, defendant cannot obtain a dismissal of his indictment. The cases have held that, although some judicial remedies may exist, there is no right to keep evidence out of a criminal prosecution or to have an indictment thrown out due to a violation of Article 36.
The final question then is whether reversal of a conviction is a proper remedy for a violation of the Vienna Convention. The Court then reviews the Convention and its structure, as well as its ratification history and subsequent operation, the position of the U.S. Department of State, and federal court precedent. The Court then holds that “the Vienna Convention does not create a right for detained foreign nationals to consult with the diplomatic representatives of his nation that federal courts can enforce. A contrary conclusion risks aggrandizing the power of the judiciary and interfering in the nation’s foreign affairs, the conduct of which the Constitution reserves for the political branches. (Cits.) Significantly, the Supreme Court has twice held that the Vienna Convention does not provide a signatory nation a private right of action in the federal courts to seek a remedy for a violation of Article 36. (Cits.) If a foreign sovereign to whose benefit the Vienna Convention inures cannot seek a judicial remedy, we cannot fathom how an individual foreign national can do so in the absence of express language in the treaty.” [Slip op. 30-31]
Citation: United States v. Emuegbunam, No. 00-1399 (6th Cir. October 5, 2001).
Filed in: 2001 International Law Update, Issue10
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As matter of first impression, Fifth Circuit rules that Vienna Convention on Consular Relations does not grant arrested foreign nationals private, judicially enforceable rights to consult with consular officials
The Immigration and Naturalization Service (INS) suspected that Alejandro Jimenez-Nava, an illegal alien from Mexico, was making fraudulent immigration documents and social security cards. Suspicion ripened into belief when INS agents questioned Jimenez-Nava and he showed them the document laboratory where he worked. The agents read Jimenez-Nava his Miranda rights on several occasions, advised him of his right to confer with Mexican consular officers and charged him with document fraud.
During his suppression hearing, Jimenez-Nava admitted that he had received the Miranda advice and had a chance to contact consular officers. Having allegedly declined because he did not understand the function of consular officers, he appeals his conviction based on alleged violations of the Vienna Convention on Consular Relations (April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820). The U.S. Court of Appeals for the Fifth Circuit affirms, finding no error in the denial of Jimenez-Nava’s motion to suppress.
Jimenez-Nava argued that Article 36 of the Vienna Convention grants foreign nationals a private, judicially-enforceable right to consult with consular officials of their home country. In his view, the court should have suppressed his post-arrest statements and the evidence obtained from the document laboratory.
This is a matter of first impression in the Fifth Circuit. So far, courts have avoided the issue of whether the Vienna Convention provides individually enforceable rights of consultation with consular officials. Moreover, there is a presumption against implying private rights. The U.S. State Department has posited that the Vienna Convention does not establish rights for individuals but only state-to-state rights and obligations.
“First, by dwelling on the plain language concerning ‘rights’ in Article 36, Jimenez-Nava must discount the equally plain language in the Preamble that the treaty’s purpose ‘is not to benefit individuals’. Appellant would confine the limitation to consular officials, but that interpretative route hardly assists him, since consular officials are the specific beneficiaries of many of the treaty provisions. … If the treaty cannot benefit them by creating individually enforceable rights, how can it intend to confer enforceable rights on all foreign nationals detained in the receiving state?”
“Second, while acknowledging the general rule against implication of personal rights in treaties, Jimenez-Nava notes that, like any agreement, treaties may explicitly confer individual rights. … He cites as an example [the] Supreme Court’s construction of an extradition treaty … Unlike the Vienna Convention, [however] the purpose and provisions of the extradition treaty related directly to the individual right asserted.” [Slip op. 13-14]
Finally, the Court rejects the argument that consular notification and communication is a “fundamental right” analogous to the Fifth and Sixth Amendments. All sister circuits have held that suppression of evidence is not a remedy for an Article 36 violation.
“Article 36 does not articulate a specific remedy. The treaty states that the rights of consultation ‘shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.’ Vienna Convention, Art. 36(2). The treaty leaves the implementation to the discretion of each signatory state so long as its ‘purposes’ to ensure free communication and access are given full effect. …”
”Finally, most countries do not have a suppression remedy. [Cit.] No other signatories to the Vienna Convention have suppressed statements under similar circumstances and two have rejected this remedy. [Cit.] If suppression becomes the remedy in the United States, the treaty would have an inconsistent meaning among signatory nations. Thus, refusing to resort to the exclusionary rule promotes ‘harmony in the interpretation of an international agreement.’” [Slip op. 20-22]
Citation: United States v. Jimenez-Nava, No. 99-11300 (5th Cir. February 26, 2001).
Filed in: 2001 International Law Update, Issue 3
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U.S. Supreme Court denies convicted Canadian murderer’s appeal for stay of execution despite alleged prior violations of Vienna Consular Convention
On June 17, 1999, the State of Texas executed Stanley Faulder, a Canadian citizen, for the 1975 murder of an elderly woman. Earlier the same day, the U.S. Supreme Court had denied Faulder’s last-minute appeal to delay the execution [119 S.Ct. 2363, 67 U.S.L.W. 3770 (1999)].
Canada, which did away with the death penalty in 1976, strongly protested the execution, claiming that the U.S. had violated the diplomatic protocol established by the Vienna Convention on Consular Relations [21 U.S.T. 77, T.I.A.S. No. 6820] by failing to advise Faulder of his right to contact his local consul. Though Faulder had been on death row since 1977, Canadian authorities claimed to have learned about his case only after he had already spent 15 years in prison.
In 1996, the U.S. Court of Appeals for the Fifth Circuit had held that Texas had not violated the Vienna Convention in a way that required a reversal of Faulder’s conviction. See Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996). The Court relied in part on a 1992 letter from a Texas Assistant Attorney General to a Canadian Embassy representative.
The letter described the contacts between Texas and the Canadian government during Faulder’s prosecution, noting that Faulder had expressly stated that he did not want to contact his family in Canada. For these and other reasons the Court found that the violation of the Vienna Convention amounted to harmless error.
The day before the execution, the U.S. Court of Appeals for the Fifth Circuit had denied Faulder’s motion to stay his execution and to obtain a temporary restraining order. Based on 28 U.S.C. Section 1350 [Alien Tort Claims Act] and Section 1983, Faulder had alleged a tort claim against Texas officials for breaches of the Consular Convention.
The Court repeated its recent holding that federal courts lack jurisdiction to stay executions under Section 1983, and extended that holding to Faulder’s claim under the Alien Tort Claims Act. The next day, the U.S. Supreme Court denied certiorari and Texas went ahead and put Faulder to death.
Citation: Faulder v. Johnson, No. 99-20542 (5th Cir. June 16, 1999); Faulder v. Texas Board of Pardons & Paroles, No. 99-50130 (5th Cir. June 10, 1999); Reuters press release “Texas executes Canadian despite Ottawa’s protests” (June 17, 1999).
Filed in: 1999 International Law Update, Issue 7
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In review of claim by detained Mexican citizen that customs had not told him of his right to consular advice under the Vienna Convention, Ninth Circuit finds Convention violation and remands for determination of whether it had prejudiced the accused
Customs inspectors at the Calexico, California, border crossing found 39.3 kilograms of marijuana hidden in the car of Jose Lombera-Camorlinga (a Mexican national). The inspectors did not tell defendant that he had the right to contact the Mexican Consulate, and he made incriminating statements.
Before his trial, defendant moved to suppress his statements to the inspectors because customs had obtained them in violation of Article 36 of the Vienna Convention on Consular Relations [21 U.S.T. 77, T.I.A.S. No. 6820]. The district court denied the motion and defendant appealed his later conviction. The U.S. Court of Appeals for the Ninth Circuit reverses and remands.
The Court first notes that Article 36(1)(b) of the Vienna Convention provides that, “the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if … a national of that State is arrested … The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.”
The government argued that the rights under the Vienna Convention belong to the foreign consulate rather than to the detained alien. The Court flatly disagrees. This language unequivocally grants these rights to the detainee. By failing to notify defendant, the customs inspectors clearly violated his Convention rights.
The Court also rejects the government’s argument that, even if the Vienna Convention establishes individual rights, individuals lack standing to enforce those rights. In the Court’s view, the case law has firmly established that, where treaty provisions establish individual rights, the courts of the U.S. must enforce those rights on behalf of the individual.
“Upon a showing that the Vienna Convention was violated by a failure to inform the alien of his right to contact his consulate, the defendant in a criminal proceeding has the initial burden of producing evidence showing prejudice from the violation of the Convention. If the defendant meets that burden, it is up to the government to rebut the showing of prejudice.”
“In this case, Lombera-Camorlinga filed a motion to suppress his post-arrest statements because he was not first advised of his rights under the Vienna Convention. The district court denied his motion to suppress without making a determination of prejudice. We therefore reverse and remand to the district court for a determination whether in making his post-arrest statements, Lombera-Camorlinga was prejudiced by the violation of the Vienna Convention.” [Slip op. 9-11]
[Compare this to the recent case of Paraguayan citizen Angel Breard, which sparked a dispute between the U.S. and Paraguay because U.S. officials did not inform the Paraguayan Consulate about Breard's initial arrest. Breard was later executed in the U.S. The U.S. eventually issued an apology to Paraguay and the International Court of Justice removed the case from its docket. See 1998 Int'l Law Update 41 & 1999 Int'l Law Update 12].
Citation: United States v. Lombera-Camorlinga, No. 98-50347 (9th Cir. March 25, 1999).
Filed in: 1999 International Law Update, Issue 4