THE RIGHT TO AN INTERPRETER UNDER CUSTOMARY INTERNATIONAL LAW
Julia Sherman*
INTRODUCTION
Over the past two decades, customary international law has become a hotly debated subject in the United States, giving rise to new theories on the relationship between international norms and the common law. However, simply because the applicability of customary international norms in U.S. courts has become foggy does not mean that the evolution of customary international norms has slowed, nor that parties in U.S. courts should be hesitant to argue new norms in U.S. state and federal jurisdictions. This Note argues that the right to an interpreter 1 is a right recognized and protected by customary international law and, as such, can be claimed by individuals in U.S. courts who have suffered a prejudicial violation. The right to an interpreter is generally viewed as a subsidiary right of the right to a fair trial; however, even as a subsidiary right, it is an important and necessary right that is well established by state practice and opiniojuris.Moreover, the right is a more specified and definite norm of customary international law than the right to a fair trial and is thus more easily applicable in domestic jurisdictions, opening up the possibility for new customary international law claims to be made in U.S. courts.
* J.D. Candidate 2017, Columbia Law School; MPhil 2014, University of Cambridge; B.A. (Hons) 2012, McGill University. The author would like to thank Professor Lori Fisler Damrosch for her insightful comments on drafts of this Note, the staff of the Columbia Human Rights Law Review for their invaluable editing, and her family for their support. 1. For the purposes of this Note, "the right to an interpreter" is used as a general term for the right to language assistance in criminal proceedings, including both oral interpretation and translation of essential written documents, following the jurisprudence of international courts and tribunals which have generally considered the right to translation of essential written documents to be a subsidiary right of the broader right to an interpreter. The scope and content of the right to an interpreter is further explained in Part III.A and B of this Note. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
The recognition of the right to an interpreter as a norm of customary international law is important both in theory for the elucidation of international law and also in practice for individuals who have suffered a violation but lack an international forum in which they could vindicate their rights. The United States offers some of the strongest fair trial guarantees in the world, and, as a result, parties in U.S. courts can often look to the U.S. Constitution for protection of their due process and fair trial rights. However, in some circumstances, and as will be demonstrated with interpretation rights, international law may offer greater protection of specific fair trial rights, leaving individuals who are unable to argue these rights in U.S. courts vulnerable to a violation without an appropriate domestic remedy. Identifying the right to an interpreter as a right protected under customary international law consequently helps to provide greater protection of such rights for claimants in American courts. Moreover, because the right to an interpreter meets the heightened requirements of general acceptance and specificity set out by the U.S. Supreme Court in Sosa v. Alvarez-Maebain, the application of the right may help to reignite the use of customary international norms in the United States. This Note begins in Part II by arguing that the right to a fair trial is a general norm under customary international law established by state practice and opiniojuris.However, the right to a fair trial is too vague and indefinite to be invoked successfully in national courts, and especially not U.S. courts, which may apply a strict standard for customary international law norms after the Supreme Court's decision in Sosa v. Alvarez-Maebain. Part III finds that the right to an interpreter has sufficient state practice and opinio juris to be considered a right under customary international law independent of the general right to a fair trial, and is not as problematic as the right to a fair trial for application in U.S. courts. Finally, Part IV considers the potential of the customary international right to an interpreter for application in U.S. federal and state courts, arguing that the right to an interpreter likely provides an additional layer of protection for individuals who are insufficiently protected by interpretation standards in federal or state jurisdictions. Ultimately, this Note aims to cement the status of the right to an interpreter as a norm of customary international law, for potential application in both national and international tribunals by individuals who have suffered prejudicial violations of their rights. 2017] The Right to an Interpreter
I. RIGHT TO A FAIR TRIAL UNDER CUSTOMARY INTERNATIONAL LAW
The right to an interpreter is generally viewed as a subsidiary right of the right to a fair trial and is intimately related to some of the essential elements of fair trials, such as the right to prepare an adequate defense and be present in court. 2 Consequently, it is arguable that customary international law provides for language assistance primarily as an implied right under an international customary right to a fair trial. However, individuals who are arguing a violation of the right to an interpreter solely as a subset of the umbrella right to a fair trial face an uphill battle. In order to be considered demonstrative of customary international law, a norm must be supported by state practice and opinio juris,' requirements that the right to a fair trial, in general terms, satisfies. Yet, the right to a fair trial is a right with uncertain scope and content under customary international law and thus is likely not readily applicable in national courts, unlike the customary right to an interpreter.
A. State Practice In order to give rise to a new rule of customary international law, state practice should be "both extensive and virtually uniform" and should occur "in such a way as to show a general recognition that a rule of law was involved."4 A survey of the history of the right to a fair trial and its codification in national constitutions demonstrates that there exists among states exactly the kind of general recognition of legal obligation required under customary international law and provides evidence of its extensive and virtually uniform practice.
2. See, e.g., Kamasinski v. Austria, App. No. 9783/82, 62 (Eur. Ct. H.R. Dec. 19, 1989) (describing the right to a fair trial as a constituent element of the general right to a fair trial and related to the right to be present in court); Akbingdl v. Germany, App. No. 74235/01, 1 (Eur. Ct. H.R. Nov. 18, 2004) (finding that the accused person was not entitled to the translation of particular documents because they were not necessary to the preparation of the defence case and thus not essential to the guarantee of a fair trial). 3. Statute of the International Court of Justice, art. 38, June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 933; see North Sea Continental Shelf (Ger. v. Den.; Ger. v. Neth.), 1969 I.C.J. 3, at 74 (Feb. 20). 4. North Sea ContinentalShelf, 1969 I.C.J. at 74. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
The modem conception of the right to a fair trial can be traced back to the Roman Lex Duodecim Tabularum,5 and through the Magna Carta, the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution, ' and to Articles 6 and 9 of the French Declaration of the Rights of Man.8 Prior to the modem era of human rights, the Charters of the Nuremberg and Tokyo War Crimes Tribunals also guaranteed the right to a fair trial.9 Launching the modem era of human rights codification, Article 18 of the American Declaration of the Rights and Duties of Man 10 first protected twentieth-century fair trial rights some months before the Universal Declaration of Human Rights did the same.11 Since the UDHR recognized the right to a fair trial, the right has been codified by human rights covenants and conventions around the world. Perhaps most importantly, Article 14 of the International Covenant on Civil and Political Rights protects the right to a fair trial. 12 The right to fair trial is also protected by Article 6 of the European Convention on Human Rights,13 the 1951 NATO Status of Forces Agreement, 14 Article 8 of the American Convention on Human
5. Patrick L. Robinson, The Right to a Fair Trial in InternationalLaw, with Speci c Reference to the Work of the ICTY, 3 BERKELEY J. INT'L L. PUBLICIST 1, 1 (2009) [hereinafter Robinson, Right to a FairTria. 6. SAMUEL WALKER, CIVIL LIBERTIES IN AMERICA: A REFERENCE HANDBOOK 147 (2004); see Magna Carta, 39; see also Robinson, Right to a Fair Trial, supra note 5, at 2. 7. U.S. CONST. amends. V, VI, XIV; see also MARIANNE MASON, COURTROOM INTERPRETING 1 (2008) (describing fair trial rights as protected by the U.S. Constitution). 8. Robinson, Right to a FairTrial, supra note 5, at 3. 9. See David Harris, The Right to a Fair Trial in Criminal Proceedingsas a Human Right, 16 INT'L & COMP. L.Q. 352, 352-53 (1967). 10. American Declaration of the Rights and Duties of Man, Mar. 30-May 2, 1948, reprinted in HANDBOOK OF EXISTING RULES PERTAINING TO HUMAN RIGHTS, OEA/Ser.L/V/II.60 Doe. 28, rev. 1, at 19 (1983). 11. Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 10, U.N. GAOR, 3d Sess., U.N. Doc A/810 (Dec. 10, 1948) [hereinafter UDHR]; see Robinson, Right to a Fair Trial,supra note 5, at 2-5. 12. International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 14, S. Exec. Doc. E, 95-2, at 28 (1978), 999 U.N.T.S. 171, 177 (entered into force Mar. 23, 1976) [hereinafter ICCPR]. 13. [European] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, art. 6, E.T.S. No. 5, 213 U.N.T.S. 221, 228 (entered into force Sept. 3, 1953) [hereinafter ECHR]. 14. See Harris, supra note 9, at 352-53. 2017] The Right to an Interpreter
Rights,15 Article 7 of the African Charter on Human and Peoples' Rights,16 Article 21 of the statute of the International Criminal Tribunal for the former Yugoslavia,1 7 Article 20 of the statute of the International Criminal Tribunal for Rwanda, 18 Article 17 of the statute for the Special Court for Sierra Leone,19 Article 67 of the Rome Statute of the International Criminal Court,2° Article 35 the Charter for the Extraordinary Chambers of the Courts of Cambodia,21 and Articles 15 and 16 of the statute for the Special Tribunal for Lebanon. 22 The Human Rights Committee in General Comment No. 32 has also clarified the content of the right to a fair trial contained in the ICCPR.23 Moreover, as identified by Professor Bassiouni, the right to a fair trial or hearing is enumerated in the national constitutions of
15. American Convention on Human Rights, opened for signatureNov. 22, 1969, art. 8, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 (entered into force July 18, 1978) [hereinafter ACHR]. 16. African Charter on Human and People's Rights, adoptedJune 27, 1981, art. 7, 21 I.L.M. 58 (entered into force Oct. 21, 1986) [hereinafter African Charter]. 17. Statute of the InternationalCriminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of InternationalHumanitarian Law Committed in the Territoryof the Former Yugoslavia Since 1991, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doe. S/RES/827 (1993), implementing Report of the Secretary-GeneralPursuant to Paragraph2 of the Security Council Resolution 803 (1993), U.N. GAOR, annex, 12, art. 21 (1993) [hereinafter ICTY Statute]. 18. Statute of International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International HumanitarianLaw Committed in the TerritoryofRwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, Between January 1, 1994 and December 31, 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., Annex, 3453d mtg. at 15, art. 20 U.N. Doe. S/RES/955 (1994), reprintedin 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute]. 19. Statute of the Special Court for Sierra Leone, art. 17, U.N. Doe. S/2002/246, appendix II (2002), 2178 U.N.T.S. 138, 151 (entered into force April 12, 2002) [hereinafter SCSL Statute]. 20. Rome Statute of the International Criminal Court, opened for signature July 17, 1998, art. 67, 37 I.L.M. 999, 2187 U.N.T.S. 90, 120, 129 (entered into force July 1, 2002) [hereinafter Rome Statute]. 21. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, art. 35, NS/RSM/1004/006 (2004) [hereinafter ECCC Statute]. 22. Statute of the Special Tribunal for Lebanon, arts. 15, 16, U.N. Doc. S/RES/1757 (2007) [hereinafter STL Statute]. 23. Human Rights Comm., General Comment No. 32: Article 14, U.N. Dec. CCPR/C/GC/32 (Aug. 23, 2007) [hereinafter General Comment No. 32]. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
thirty-eight national constitutions: 24 Antigua and Barbuda, 25 Bahamas, 26 Barbados, 2 Belize,2 8 Bolivia,2 9 Botswana, 30 Cameroon,3 1 Canada, 32 Dominica, 33 Dominican Republic, 34 Fiji, 35 Gambia, 36 Grenada, 3' Guyana, 38 Hungary, 39 Jamaica, 40 Kenya, 41 Kiribati, 42
24. M. Cherif Bassiouni, Human Rights in the Context of CriminalJustice: Identifying InternationalProcedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT'L L. 235, 267 (1993). Although Prof. Bassiouni's survey of world constitutions did not clearly describe his methodology, it appears that he classified a constitution as explicitly guaranteeing the right to a fair trial if language protecting a "fair trial" or "independent and impartial" tribunal was used, or language with only a slight variance to that effect. Constitutions that do not guarantee fair trial rights in this precise language, but rather contain general due process provisions are noted separately. See, e.g., infra note 127 and accompanying text. 25. THE CONSTITUTION OF ANTIGUA AND BARBUDA July 31, 1981, ch. II § 15(l). 26. THE CONSTITUTION OF THE COMMONWEALTH OF THE BAHAMAS June 20, 1973, ch. III § 20(l). 27. THE CONSTITUTION OF BARBADOS Nov. 22, 1966, ch. III § 18(l). 28. BELIZE CONSTITUTION ACT Sept. 21, 1981, pt. II § 6(2). 29. CONSTITUTION OF 2009 OF THE PLURINATIONAL STATE OF BOLIVIA Feb. 7, 2009, pt. 1, tit. IV, art. 120(I). Note that Prof. Bassiouni's study incorporated an earlier version of Bolivia's Constitution that also had a fair trial provision but was placed in a different title. 30. CONSTITUTION OF BOTSWANA Mar., 1965, ch. II § 10(l). 31. CONSTITUTION OF CAMEROON June 2, 1972, as amended by Law No. 96-06, Jan. 18, 1996, pmbl. Note that the Constitution of Cameroon includes the UDHR as an annex, which also guarantees the right to a fair trial in article 10. 32. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act, 1982, c 11 (U.K.), pt. I § ll(d). 33. CONSTITUTION OF THE COMMONWEALTH OF DOMINICA Nov. 3, 1978, ch. I § 8(l). 34. CONSTITUTION OF THE DOMINICAN REPUBLIC June 13, 2015, ch. II, art. 69(2). Note that Prof. Bassiouni's study incorporated an earlier version of the Dominican Republic's Constitution that also had a fair trial provision but was placed in a different section. 35. CONSTITUTION OF THE REPUBLIC OF FIJI Sep. 6, 2013, § 15(l). Note that Prof. Bassiouni's study incorporated an earlier version of Fiji's Constitution that also had a fair trial provision but was placed in a different article. 36. CONSTITUTION OF THE REPUBLIC OF THE GAMBIA 1997, ch. IV § 24(l). Note that Prof Bassiouni's study incorporated an earlier version of Gambia's Constitution that also had a fair trial provision but was placed in a different article. 37. THE GRENADA CONSTITUTION ORDER 1973, § 8(l). 38. CONSTITUTION OF THE CO-OPERATIVE REPUBLIC OF GUYANA Feb. 20, 1980, art. 144(l). 39. MAGYARORSZAG ALAPTORVENYE [THE FUNDAMENTAL LAW OF HUNGARY], ALAPTORVENY, Apr. 18, 2011, art. XXVIII(1). Note that Prof. 2017] The Right to an Interpreter
Liberia,43 Malta,44 Mauritius,4 5 Namibia,4 6 Nauru,47 Nigeria,4 8 Papua New Guinea, " St. Kitts and Nevis, 50 Sierra Leone, 51 Solomon 3 54 55 56 Islands, 52 Sri Lanka, 5 Sudan, Swaziland, Trinidad and Tobago, Tuvalu, 57 Uganda, 58 United Arab Emirates, 59 Zambia, 60 and 61 Zimbabwe.
Bassiouni's study incorporated an earlier version of Hungary's Constitution that also had a fair trial provision but was placed in a different section. 40. THE CONSTITUTION OF JAMAICA 1962, § 20(l). 41. CONSTITUTION art. 25(c), art. 50(l)-(2) (2010) (Kenya). Note that Prof. Bassiouni's study incorporated an earlier version of Kenya's Constitution that also had a fair trial provision but was placed in a different article. Also note that art. 25(c) states that the right to a fair trial is a non-derogable right. 42. CONSTITUTION OF KIRIBATI 1980, § 10(l). 43. CONSTITUTION OF THE REPUBLIC OF LIBERIA Jan. 6, 1986, art. 21. 44. CONSTITUTION OF MALTA Sep. 21, 1964, art. 39(l). 45. THE MAURITIUS INDEPENDENCE ORDER [CONSTITUTION] Mar. 6, 1968, ch. II § 10(l). 46. CONSTITUTION OF THE REPUBLIC OF NAMIBIA Mar. 21, 1990, ch. 3, art. 12(1)(a). 47. CONSTITUTION OF NAURU May 17, 1968, pt. II § 10(2). 48. CONSTITUTION OF NIGERIA (1999) § 36(l), (4). Note that Prof. Bassiouni's study incorporated an earlier version of Nigeria's Constitution that also had a fair trial provision but was placed in a different article. 49. CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA Sept. 16, 1975, pt. II(3)(B) § 37(3). 50. STATUTORY INSTRUMENTS, 1983 NO. 881, SAINT CHRISTOPHER AND NEVIS [CONSTITUTION] June 22, 1983, ch. II § 10(l) (St. Kitts and Nevis). Note that Professor Bassiouni used the spelling "St. Christopher-Nevis." 51. THE CONSTITUTION OF SIERRA LEONE Oct. 1, 1991, ch. III § 23(l). 52. THE SOLOMON ISLANDS INDEPENDENCE ORDER 1978 [CONSTITUTION] May 31, 1978, ch. II § 10(l). 53. CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA 1978 Aug. 31, 1978, ch. III § 13(3). 54. INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF THE SUDAN July 6, 2005, pt. II § 34(3). Note that Prof. Bassiouni's study incorporated an earlier version of Sudan's Constitution that also had a fair trial provision but was placed in a different article. 55. THE CONSTITUTION OF THE KINGDOM OF SWAZILAND ACT July 26, 2005, ch. III § 21(l). Note that Prof. Bassiouni's study incorporated an earlier version of Swaziland's Constitution that also had a fair trial provision but was placed in a different chapter. 56. THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO Aug. 1, 1976, ch. I, pt. I § 5(2)(f)(ii). 57. THE CONSTITUTION OF TUVALU Oct. 1, 1986, § 22(2). 58. CONSTITUTION OF THE REPUBLIC OF UGANDA Oct. 8, 1995, ch. IV § 28(l). Note that Prof. Bassiouni's study incorporated an earlier version of Uganda's Constitution that also had a fair trial provision but was placed in a different chapter. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Other constitutions that explicitly guarantee the right to a fair trial62 that were not included in Professor Bassiouni's survey are: 65 66 67 68 Albania,6 3 Andorra, 64 Angola, Armenia, Bangladesh, Belarus, Bosnia and Herzegovina (hereinafter BiH), 69 Bulgaria,70 Burkina Faso,7 1' Burundi,7 2 Congo,7 3 Cote d'Jvoire,7 4 Croatia,7 5 Cyprus, 7 6 Czech
59. CONSTITUTION OF THE UNITED ARAB EMIRATES 1971, pt. 3, art. 28. 60. CONSTITUTION OF ZAMBIA (1996) § 18j). Note that Prof Bassiouni's study incorporated an earlier version of Zambia's Constitution that also had a fair trial provision but was placed in a different article. Also note that Zambia's Constitution was amended on Jan. 5, 2016; however, the amendments do not appear to have altered Part III on fundamental rights and freedoms of the individual. 61. CONSTITUTION OF ZIMBABWE § 69(l). Note that Prof. Bassiouni's study incorporated an earlier version of Zimbabwe's Constitution that also had a fair trial provision but was placed in a different chapter. 62. For the purposes of this Note, a constitution was considered to explicitly enumerate the right to a fair trial if language guaranteeing a "fair trial" or "independent and impartial" tribunal was used, or language varying only slightly to that effect, in order to replicate as closely as possible Prof. Bassiouni's methods. Constitutions that did not have an exact guarantee of a "fair trial" or trial by an "independent and impartial" tribunal, but contained several provisions that together guaranteed such rights have been noted in the relevant note. See supra note 24; infra note 127 and accompanying text. 63. CONSTITUTION OF THE REPUBLIC OF ALBANIA Nov. 22, 1998, pt. II, ch. II, art. 31. 64. CONSTITUTION OF THE PRINCIPALITY OF ANDORRA Feb. 2, 1993, tit. II, ch. 111, art. 10. 65. CONSTITUTION OF THE REPUBLIC OF ANGOLA Jan. 21, 2010, art. 67. 66. CONSTITUTION OF THE REPUBLIC OF ARMENIA July 5, 1995, ch. II, art. 19. 67. CONSTITUTION OF THE PEOPLE'S REPUBLIC OF BANGLADESH Nov. 4, 1972, pt. III, art. 35(3). 68. CONSTITUTION OF THE REPUBLIC OF BELARUS OF 1994 Mar. 1, 1994, sec. II, art. 60. 69. CONSTITUTION OF BOSNIA AND HERZEGOVINA Dec. 14, 1995, art. II, para. 3(e). 70. CONSTITUTION OF THE REPUBLIC OF BULGARIA July 13, 1991, ch. II, art. 31(4) ("The rights of a defendant shall not be restricted beyond what is necessary for the purposes of a fair trial."). 71. CONSTITUTION OF BURKINA FASO June 2, 1991, ch. I, art. 4. 72. CONSTITUTION OF BURUNDI Feb. 28, 2005, tit. II, art. 38. 73. CONSTITUTION DE LA REPUBLIQUE DU CONGO Oct. 25, 2015, art. 9. 74. CONSTITUTION DE LA REPUBLIQUE DE COTE DIVOIRE Oct. 30, 2016, art. 7. 75. CONSTITUTION OF THE REPUBLIC OF CROATIA Dec. 22, 1990, ch. III, pt. II, art. 29. 76. CONSTITUTION OF CYPRUS Aug. 16, 1960, pt. II, art. 30(2). 2017] The Right to an Interpreter
Republic, 77 Ecuador, 78 Egypt, 79 Equatorial Guinea, 80 Eritrea, 81 85 86 87 88 Finland, 82 Germany, 83 Ghana, 84 Guinea, Iceland, Iraq, Japan, Kosovo, 89 Latvia, 90 Lesotho, 91 Libya, 92 Lithuania, 93 Malawi, 9' Maldives, 95 Marshall Islands, 96 Mongolia, 97 Montenegro, 98 Nepal, 99 New Zealand, 100 Norway, 101 Pakistan, 102 Palau, 103 Paraguay, 104
77. Usneseni c. 2/1993 Sb. ch.V, art. 36 (Czech.). 78. CONSTITUCION DE LA REPUBLICA DEL ECUADOR tit. I, ch. VIII, art. 7(k). 79. DUSTUR JUMHURIAT MISR AL-ARABIAT [CONSTITUTION] ch. IV, art. 96 (Egypt). 80. CONSTITUCION DE GUINEA ECUATORIAL. pt. I, art. 13j) (Eq. Guinea). 81. QwAM ERITREA [CONSTITUTION] ch. III, art. 17. 82. SUOMEN PERUSTUSLAKI [CONSTITUTION] ch. II, sec. 21 (Fin.). Note that section 21 states that guarantees of a fair trial will be laid out by an Act. 83. GRUNDGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBL. 1, § IX, art. 103 (Ger.). Note that article 103 does not guarantee a fair trial in its content, but is entitled "fair trial". 84. THE CONSTITUTION OF THE REPUBLIC OF GHANA ch. V, art. 19(l). 85. LA CONSTITUTION DE LA RIPUBLIQUE DE LA GUINEE tit. II, art. 9 (Guinea). 86. STJORNARSKRA LYDVELDISINS ISLANDS [CONSTITUTION] § VII, art. 70 (lIce.). 87. DUSTUR AL-IRAQ [CONSTITUTION], sec. II, ch. I, art. 19(5) (Iraq). 88. NIHONKOKU KENPO [KENPO] [CONSTITUTION], ch. III, art. 37 (Japan). 89. CONSTITUTION OF THE REPUBLIC OF KOSOVO June 15, 2008, ch. II., art. 31. 90. LATVIJAS REPUBLIKAS SATVERSME [LV] [CONSTITUTION], ch. VIII, art. 92 (Latvia). 91. CONSTITUTION OF LESOTHO, ch. II, arts. 4(1)(h), 12. 92. CONSTITUTIONAL DECLARATION, ch. IV, art. 31 (Libya). Note that Prof. Bassiouni's study incorporated an earlier version of the Libyan Constitution that only provided for procedural safeguards for the defense and was classified in his study as such. 93. CONSTITUTION OF THE REPUBLIC OF LITHUANIA Oct. 25, 1993, ch. II, art. 31. 94. REPUBLIC OF MALAWI (CONSTITUTION) ACT May 18, 1994, ch. IV, art. 42(2)(f). 95. CONSTITUTION OF THE REPUBLIC OF MALDIVES, ch. II, art. 42(a). 96. CONSTITUTION OF THE REPUBLIC OF THE MARSHALL ISLANDS, art. II, sec. 4. 97. CONSTITUTION OF MONGOLIA Jan. 13, 1992, ch. II, art. 16(14). 98. CONSTITUTION OF THE REPUBLIC OF MONTENEGRO Oct. 19, 2007, pt. II, ch. II., art. 32. 99. CONSTITUTION OF NEPAL Sept. 20, 1015, pt. III, art. 20(9). Note that the Constitution cited here was adopted in September 2015 and the author is relying on an unofficial translation by International IDEA. 100. NEW ZEALAND BILL OF RIGHTS ACT 1990 Aug. 28, 1990, pt. II, art. 25(a). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Poland," 5 Romania,1 0 6 Rwanda,1 0 7 Saint Lucia,0 8 Saint Vincent and the Grenadines, 109 Samoa, 110 Serbia, "' Seychelles, 112 Slovenia, 113 116 117 118 Somalia, 114 South Africa,115 South Sudan, Switzerland, Syria, 122 12 3 12 4 Tanzania,1 1 9 Togo,1 20 Tonga,1 21 Tunisia, Turkey, and Vanuatu.
101. CONSTITUTION OF THE KINGDOM OF NORWAY May 17, 1814, sec. D, art. 95. 102. PAKISTAN CONST. pt. II, ch. I, art. 10A. 103. CONSTITUTION OF THE REPUBLIC OF PALAU July 9, 1980, art. IV, sec. 7. 104. CONSTITUTION OF PARAGUAY June 20, 1992, pt. I, tit. II, ch. II, art. 16. 105. CONSTITUTION OF THE REPUBLIC OF POLAND Apr. 2, 1997, ch. II, art. 45(l). 106. CONSTITUTION OF ROMANIA Nov. 21, 1991, tit. II, ch. I, art. 21. Note that Prof. Bassiouni's study incorporated an earlier version of Romania's Constitution that did not have a fair trial provision. 107. CONSTITUTION OF THE REPUBLIC OF RWANDA May 26, 2006, tit. II, ch. I, art. 19. 108. CONSTITUTION OF SAINT LUCIA Dec. 31, 2006, ch. I, art. 8(l). 109. THE SAINT VINCENT AND THE GRENADINES CONSTITUTION ACT 2009, ch. I, art. 8(l). 110. THE CONSTITUTION OF THE INDEPENDENT STATE OF WESTERN SAMOA 1960, pt. II, art. 9. 111. THE CONSTITUTION OF THE REPUBLIC OF SERBIA 2006, ch. II, pt. II, art. 32. 112. THE CONSTITUTION OF THE REPUBLIC OF SEYCHELLES June 21, 1993, ch. III, pt. I, art. 19(l). 113. THE CONSTITUTION OF REPUBLIC OF SLOVENIA Dec. 23, 1991, ch. II, art. 23. Note that Article 23 guarantees the right to "have any decision regarding his rights, duties, and any charges brought against him made without undue delay by an independent, impartial court constituted by law" and that Articles 24 through 31 guarantee subsidiary fair trial rights. 114. THE FEDERAL REPUBLIC OF SOMALIA PROVISIONAL CONSTITUTION Aug. 1, 2012, ch. II, tit. II, art. 34(2). 115. S. AFR. CONST., 1996, ch. II, arts. 34, 35(3). 116. THE TRANSITIONAL CONSTITUTION OF THE REPUBLIC OF SOUTH SUDAN, July 2011, pt. II, art. 19. 117. BUNDESVERFASSUNG [BV] [CONSTITUTION] Apr. 18, 1999, SR 101, arts. 29, 30 (Switz.). 118. CONSTITUTION OF THE SYRIAN ARAB REPUBLIC Mar. 13, 1973, tit. II, ch. II, art. 51(2). 119. THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA Apr. 25, 1977, ch. I, pt. III, art. 13(6)(a). 120. THE CONSTITUTION OF THE REPUBLIC OF TOGO May 5, 1993, tit. II, sub. tit. I, art. 19. 121. THE CONSTITUTION OF TONGA Nov. 4, 1875, pt. I, art. 14. Note that Article 14 does not guarantee a fair trial in its content, but is entitled "trial to be fair". 122. THE CONSTITUTION OF TUNISIA Jan. 26, 2014. Note that Prof. Bassiouni's study incorporated an earlier version of the Tunisian Constitution 2017] The Right to an Interpreter
The right to a fair trial was also enumerated in the 2003 Draft Constitution of the State of Palestine. 125 In addition to protections through the common law, the right to a fair trial is explicitly protected in the United Kingdom through the Human Rights Act of 1998,126 which incorporated the ECHR into British law. In addition to the almost a hundred countries explicitly protecting the right to a fair trial, other national constitutions contain general due process language that has been interpreted to guarantee fair trial rights, most notably the U.S. Constitution, which guarantees fair trial rights in the Fifth, Sixth, and Fourteenth Amendments. 127 The constitutions of Afghanistan, 128 Algeria, 129 Bhutan,13 ° Cape Verde,' Colombia, 132 Mexico, 133 the Federated States of Micronesia, 134 the Philippines, 135 Uruguay, 136 and Venezuela 137 that only provided for procedural safeguards for the defense and was classified in his study as such. 123. CONSTITUTION OF THE REPUBLIC OF TURKEY Nov. 7, 1982, pt. II, ch. I, sec. XIII § A, art. 36. 124. CONSTITUTION OF THE REPUBLIC OF VANUATU July 30, 1980, ch. II, pt. 2, art. 5(2)(a). 125. CONSTITUTION OF THE STATE OF PALESTINE Mar. 25, 2003, ch. II, art. 29. 126. Human Rights Act, 1998, c. 42, § 1(3), sch. 1, pt. 1, art. 6 (Eng.). 127. U.S. CONST. amends. V, VI, XIV; see also Bassiouni, supra note 24, at 267 (noting the fair trial protections of the Fifth, Sixth, and Fourteenth amendments); MASON, supra note 7, at 1 (describing fair trial rights as guaranteed by the U.S. Constitution). 128. CONSTITUTION OF THE ISLAMIC REPUBLIC OF AFGHANISTAN Jan. 26, 2004, ch. II, art. 27 (guaranteeing due process rights). 129. CONSTITUTION OF THE PEOPLE'S DEMOCRATIC REPUBLIC OF ALGERIA 1989, as amended, 1996, pt. I, ch. IV, art. 45 (requiring that an accused has "all the guarantees required by the law"). 130. CONSTITUTION OF THE KINGDOM OF BHUTAN 2008, art. 7j) (guaranteeing due process rights). 131. CONSTITUTION OF THE REPUBLIC OF CAPE VERDE 1992, as amended, 1999, ch. II, pt. II, tit. I art. 20 (stating that everyone should be "guaranteed by law the right to defense, to be represented, to have access to information, and to consultation."). 132. CONSTITUCION POLTICA DE COLOMBIA [C.P.] tit. II, ch. I, art. 29 (guaranteeing due process rights). 133. CONSTITUCION POLTICA DE LOS ESTADOS UNIDOS MEXICANOS [CP], tit. I, ch. I, art. 14, Diario Oficial de la Federaci6n [DOF] 05-02-1917, utimas reformas DOF 10-02-2014 (Mex.). 134. CONSTITUTION OF THE FEDERATED STATES OF MICRONESIA 1978, art. IV, §§ 3, 6. 135. CONST. (1987), art. III § 1 (Phil.). 136. CONSTITUTION OF THE ORIENTAL REPUBLIC OF URUGUAY 1967, as amended2004, sec. II, ch. I, art. 12 (guaranteeing due process rights). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
similarly contain general due process language. 138 The Australian constitution does not have an enumerated right to a fair trial, but 1 39 courts are able to protect fair trial rights through the common law. The constitutions of the Democratic Republic of the Congo (hereinafter D.R.C.), Estonia, Ethiopia, Nicaragua, and Oman do not enumerate the right to a fair trial, but rather explicitly guarantee several subsidiary fair trial rights, such as the right to a speedy and public trial. 140 The Constitution of the Slovak Republic does not guarantee the right to a fair trial, but instead states that "[e]veryone may claim by the established legal procedure his right to an independent and impartial court hearing." 141 Several more constitutions guarantee simply the right to all the procedural safeguards necessary for the defense 142 : Benin, 143 Brazil, 144 Central African Republic, 145 Chad, 146 El Salvador, 147 Gabon, 148 Kuwait, 149 152 153 154 Madagascar, 150 Moldova, 151 Niger, Portugal, and Qatar.
137. CONSTITUTION OF THE BOLIVARIAN REPUBLIC OF VENEZUELA 1999, as amended2009, tit. III, ch. II, art. 49. 138. The 2008 Constitution of Myanmar also contains due process language in Article 381; however, due process guarantees are explicitly allowed to be derogated in times of foreign invasion, insurrection, and emergency in the same article. See CONSTITUTION OF THE REPUBLIC OF THE UNION OF MYANMAR May 29, 2008, ch. VIII, art. 381. 139. Simon Bronitt & Bernadette McSherry, The Use and Abuse of Counseling Records in Sexual Assault Trials: Reconstructing the 'Rape Shield'7 8 CRIM. L.F. 259, 272-273 (1997). 140. CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO 2005, tit. II, ch. I, arts. 18-21; CONSTITUTION OF THE REPUBLIC OF ESTONIA June 28, 1992, ch. II, arts. 21-24; CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA Dec. 8, 1994, ch. III, pt. I, art. 20; CONSTITUCION POLTICA DE LA REPUBLICA DE NICARAGUA [CN.] tit. IV, ch. I, art. 34, LA GACETA, DIARO OFICIAL [L.G.] 9 January 1987; CONSTITUTION OF OMAN 1996 (rev. 2011), ch. III, art. 22- 23. 141. CONSTITUTION OF THE SLOVAK REPUBLIC Sept. 1, 1992, ch. II, pt. VI, art. 46(l). 142. Bassiouni, supra note 24, at 267-68. 143. CONSTITUTION DE LA REPUBLIQUE DU BENIN Dec. 2, 1990, art. 17. Note that Prof Bassiouni's study did not classify Benin's Constitution as such. 144. CONSTITUIQAO FEDERAL [C.F.] [CONSTITUTION] art. 5 (Braz.). Note that Prof. Bassiouni's study incorporated an earlier version of Brazil's Constitution that also had a fair trial provision but was placed in a different section. 145. CONSTITUTION DE LA REPUBLIQUE CENTRAFRICAINE Mar. 27, 2016, art. 3 (Cent. Afr. Rep.). Note that the document cited here is the Constitution adopted after constitutional referendum in December 2015. 146. CONSTITUTION DE LA REPUBLIQUE DU TCHAD Mar. 31, 1996, art. 24 (Chad). 2017] The Right to an Interpreter
1. Opinio Juris As evidenced by national constitutions, international treaties and U.N. statutes, fair trial rights have nearly universal protection, satisfying the state practice requirements set out by the I.C.J. Nonetheless, in order to be considered customary international law, a norm must be evidenced not only by state practice, but also opinio juri;,that is, a state's subjective belief that it is bound by the obligation.155 However, it is less obvious whether states believe fair trial rights to be a norm under international law, as opposed to a protected right under their own national constitutions. Opinio juris is what distinguishes customary international law from "mere habit or usage,' 156 and thus cannot be neglected or assumed. Yet, it is difficult to ascertain when a norm has reached
147. CONSTITUCION DE LA REPUBLICA DE EL SALVADOR [CONSTITUTION] Dec. 15, 1983, arts. 11-12. Note that Article 11 guarantees the right not to be deprived of liberty without previously being heard and defeated in a trial, while Article 12 protects the accused's right to "all the guarantees necessary for his defense." 148. CONSTITUTION OF THE GABONESE REPUBLIC Mar. 26, 1991, prelim. tit., art. 1(4). Note that Prof. Bassiouni's study incorporated an earlier version of Gabon's Constitution that had a provision guaranteeing all the procedures necessary to safeguard the right to defense, but was placed in a different title. 149. CONSTITUTION OF KUwAIT Nov. 11, 1962, pt. III, art. 34. 150. CONSTITUTION OF MADAGASCAR Nov. 14, 2010, tit. II, sub-tit. I, art. 13. 151. CONSTITUTION OF THE REPUBLIC OF MOLDOVA Jul. 24, 1994, tit. II, ch. I, art. 21. Note that Article 21 guarantees the right to be presumed innocent, the right to a public trial, and the right to "all guarantees necessary for.., defense". 152. CONSTITUTION OF 8 NOVEMBER 1960 tit. II, art. 20 (Niger). Note that Prof. Bassiouni's study did not classify Niger's Constitution as such; however, it was considering an earlier version of the Constitution. 153. CONSTITUTION OF THE PORTUGUESE REPUBLIC 1976, tit. II, ch. I, art. 32(l). 154. PERMANENT CONSTITUTION OF THE STATE OF QATAR 2003, pt. III, art. 39. Note that Prof. Bassiouni's study had classified the Constitution of Qatar as explicitly guaranteeing the right to a fair trial, as an earlier version of the Constitution had included such as provision in Article 11. However, the 2004 Constitution no longer explicitly guarantees the right to a fair trial and only guarantees that the necessary safeguards for self-defense will be secured. 155. See International Law Commission, Second report on identification of customary international law by Michael Wood, Special Rapporteur, 69, U.N. Doe. A/CN.4672 (May 22, 2014). 156. Id. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
customary status through opiniojurs, 15 and particularly difficult to ascertain the subjective views of a state with regard to a norm like the right to a fair trial, as it is explicitly and extensively guaranteed by numerous treaties and declarations. For instance, China is 158 particularly notorious for failing to comply with fair trial rights. Nevertheless, changes were made to the Chinese Criminal Procedure Law and Criminal Law in the 1990s to enhance fair trial protections (at least on paper).159 Consequently, even from a Chinese perspective, it appears that the right to a fair trial entails some sense of legal
157. See ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 82-87 (1971); J. Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INT'L L. 449, 452-53 (1999); International Law Association, Final Report of the Committee on the Formation of General Customary InternationalLaw, 69 INT'L L. ASS'N REP. CONF. 713, 719-21 (2000); Frederic L. Kirgis, Jr., Custom on a Sliding Scale, 81 AM. J. INT'L L. 146, 149 (1987); Michael P. Scharf, Acceleration Formation of Customary International Law, 20 ILSA J. INT'L COMP. L. 305, 328 (2013); Andrew T. Guzman, Saving Customary International Law, 27 MICH. J. INT'L. L. 115, 124-25 (2005); International Law Commission, supra note 155, 66; see also Special Tribunal for Lebanon, Interlocutory Decision on the Applicable Law, STL-11-01/I, 87 (STL Appeal Chambers 2011) (finding that customary international law had been proven "beyond any shadow of doubt" but declining to determine that that was the applicable burden of proof). 158. See, e.g., Human Rights Commission, Opinions Adopted by the Working Group on Arbitrary Detention, Opinion No. 02/2003, E/CN.4/2004/3/Add.1, 19 (Nov. 26, 2003); Human Rights Commission, Opinions Adopted by the Working Group on Arbitrary Detention, Opinion No. 10/2003, E/CN.412004/3/Add.1, 1 27 (Nov. 26, 2003); Human Rights Commission, Opinions Adopted by the Working Group on Arbitrary Detention, Opinion No. 23/2003, E/CN.4/2005/6/Add.1, 15 (Nov. 19, 2004); Human Rights Commission, Opinions Adopted by the Working Group on Arbitrary Detention, Opinion No. 20/2005, E/CN/4/2006/7/Add.1, 23 (Oct. 19, 2005); Human Rights Council, Opinions Adopted by the Working Group on Arbitrary Detention at its Sixtieth Session, Opinion No. 15/2011, A/HRC/WGAD/2011/15, 28 (Feb. 27, 2012); Human Rights Council, Opinions Adopted by the Working Group on Arbitrary Detention at its Sixty-First Session, Opinion No. 29/2011, A/HRC/WGAD/2011/29, 31 (Feb. 28, 2012); Human Rights Council, Opinions Adopted by the Working Group on Arbitrary Detention at its Sixty-Fourth Session, Opinion No. 36/2012, A/HRC/WGAD/2012/36, 22 (Nov. 23, 2012); Human Rights Council, Opinions Adopted by the Working Group on Arbitrary Detention at its Sixty-Ninth Session, Opinion No. 02/2014, A/HRC/WGAD/2014/2, 34 (July 21, 2014); Human Rights Council, Opinions Adopted by the Working Group on Arbitrary Detention at its Sixty-Ninth Session, Opinion No. 03/2014, A/HRC/WGAD/2014/3, 28 (July 21, 2014). 159. See Daphne Huang, The Right to a Fair Trialin China, 7 PAC. RIM. L. & POL'Y J. 171, 171-72 (1998). 2017] The Right to an Interpreter
obligation under international law and before the international community. 160 The overwhelming prevalence of fair trial rights in national constitutions and treaties and the frequency of international condemnations of fair trial violations suggests that the right to a fair trial is subjectively valued by states. 161 Indeed, the fact that the United States in particular internationally condemns other states for fair trial violations is a good indicator that it views the right as a customary international norm, as the two primary sources of international fair trial obligations upon the United States, aside from customary international law, are the UDHR and the ICCPR. However, the debate over the customary status of these 162 documents is likely more disputed than that of fair trial rights. While some commentators argue that the norms contained in the UDHR and ICCPR have "risen to the level of customary international law"163 and lower courts in the United States have cited the UDHR as
160. See id. at 173. But see Ping Yu, Glittery Promise vs. Dismal Reality: The Role of a CriminalLawyer in the Peoples' Republic of China after the 1996 Revision of the Criminal Procedure Law, 35 VAND. J. TRANSNAT'L L. 827, 862 (2002) (arguing that China is obligated to uphold the right to a fair trial, citing the UDHR as binding authority for customary international law); Marsha Wellknown Yee, Note, Hong Kongs' Legal Obligation to Require Fair Trial for Rendition, 102 COLUM. L. REV. 1373, 1390 (2002) (arguing that Hong Kong has an obligation to provide fair trials for rendition and extradition based on the ICCPR, customary international law, and other international instruments). 161. See also ANTONIO CASSESE ET AL., CASSESE'S INTERNATIONAL CRIMINAL LAW 357 (3rd ed., rev. 2013) (stating that the "principle of fairness" is likely jus cogens due to "the insistence of all states on the importance of fair but expeditious trials"). 162. See, e.g., Tai-Heng Cheng, The Universal Declaration of Human Rights at Sixty: Is It Still Right for the United States 41 CORNELL INT'L L.J. 251, 278-80 (2008) (noting that since Sosa eighteen lower courts have interpreted Sosa to hold that the UDHR has no authoritative value, forty courts have avoided deciding the status of the UIDHR, and twelve have relied on the UDHR as authoritative international law). 163. See Harold Hongju Koh, Agora: Military Commissions: the Case Against Military Commissions, 96 AM. J. INT'L L. 337, 341 n.24 (2002); Hurst Hannum, The Status and Future of the Customary InternationalLaw of Human Rights: The Status of the UniversalDeclaration ofHuman Rights in National and InternationalLaw, 25 GA. J. INT'L & COMP. L. 287, 345-46 (1995); Elizabeth F. Defeis, Human Rights, the European Union, and the Treaty Route: from Maastricht to Lisbon, 35 FORDHAM INT'L L.J. 1207, 1225 n.93 (2012); Jordan J. Paust, JuaicialPower to Determine the Status and Rights of PersonsDetained Without Trial, 44 HARV. INT'L L.J. 503, 511 n.27 (2003); see also MYRES S. McDOUGAL, HAROLD LASSWELL & LUNG-CHU CHEN, HUMAN RIGHTS AND WORLD PUBLIC ORDER 272 (1980) (stating that the UDHR is an "authoritative legal COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
a source of customary international law binding upon the United States,1 6 4 the present status of these documents is unclear. In Sosa v. Alvarez-Maehain, the U.S. Supreme Court considered whether the UDHR and ICCPR could form the basis for customary international law causes of action for the case arising under the Alien Tort Statute (ATS). 165 The Court ultimately concluded that the UDHR "does not of its own force impose obligations as a matter of international law. '166 In contrast, the Court concluded that the "[ICCPR] does bind the United States as a matter of international law" but that the non-self-executing treaty does not "itself create obligations enforceable in the federal courts." 167 Consequently, the Court arguably acknowledged the ICCPR as a source of customary international law, potentially giving rise to fair trial obligations under international norms, while dismissing the UDHR as a source of such obligations. Sosa, however, is also important for its discussion of the conditions needed for a norm of customary international law to be recognized by U.S. courts. In declining to recognize a norm against the kind of arbitrary detention suffered by Alvarez, the Court 16 introduced two requirements: general acceptance and specificity. 1 The Court stated that any claim based on a norm of customary
requirement"); Mark S. Ellis, A Global Legal Odyssey: A TrainingManual for the Legal Profession, 43 S. TEX. L. REV. 355, 356 (2002) (arguing that the UDHR sets out principles recognized as part of customary international law by the I.C.J. in the Tehran Hostages Case); Joannis Kalpouzos & Itamar Mann, Banal Crimes against Humanity: The Case of Asylum Seekers in Greece, 16 MELBOURNE J. INT'L L. 1, 16 n.83 (2015) (citing the WGAD decision in Question of the Human Rights of All PersonsSubjected to Any Form ofDetention or Imprisonment for the statement that the UDHR established international norms relating to the right to a fair trial); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 701 cmt. d (1987) (stating that "it is increasingly recognized that states parties to the [U.N.] Charter are legally obligated to respect some of the rights recognized in the [UDHR]"). 164. See Filartiga v. Pena-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980). 165. Sosa v. Alvarez-Machain, 542 U.S. 692, 734-37 (2004); see also Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 899 (2007) (describing the holding of Sosa with regard to the UDHR and ICCPR). 166. Sosa, 542 U.S. at 734; see also Bradley et al., supra note 165, at 899 (describing the holding of Sosa with regard to the UDHR and ICCPR). 167. Sosa, 542 U.S. at 735 (emphasis added); see also Bradley et al., supra note 165, at 899 (describing the holding of Sosa with regard to the UDHR and ICCPR). 168. Sosa, 542 U.S. at 725. 2017] The Right to an Interpreter
international law must be "accepted by the civilized world and defined with a specificity comparable to the features of the 18th- century paradigms we have recognized." 169 The Court gave the example of piracy as a sufficiently specific norm, and further clarified that "the determination whether a norm is sufficiently definite to support a cause of action should ...involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." 170 While the decision still leaves a number of ambiguities as to the exact levels of general acceptance and specificity that will be sufficient for norm recognition, it indicates that, in the future, customary international norms must meet a 171 substantially heightened standard to be recognized in U.S. courts. Irrespective of the domestic status of ICCPR- or UDHR-based fair trial rights,1 2 the United States regularly accuses other states of violating fair trial norms.7 3 Consequently, U.S. actions in this regard
169. Id. 170. Id. at 731-32 (2004). 171. Bradley et al., supra note 165, at 896-97. But see William S. Dodge, After Sosa: The Future of CustomaryInternational Law in the United States, 17 WILLAMETTE J. INT'L L. & DIS. RES. 21, 26 (2009) (arguing that the standard set out in Sosa for general acceptance and specificity was the same that lower courts had already been applying). 172. See, e.g., People v. Ramirez, 139 P.3d 64, 118-19 (Cal. 2006) (plaintiff citing the UDHE and ICCPR as evidencing a customary international law right to a fair trial but court finding that the defendant was not denied a fair trial even by international standards). 173. See U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: AZERBAIJAN 11-14 (2016), https://www.state.gov/ documents/organization/265608.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: CHINA 14-18, 103 (2016), https://www.state.gov/documents/organization/265540.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: IRAN 11-12 (2016), https://www.state.gov/documents/organization/265708.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: KAZAKHSTAN 8-10 (2016), https://www.state.gov/documents/organization/265750.pdf; U.S. DEPT OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA 8-9 (2016), https://www.state.gov/ documents/organization/265556.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: KYRGYZ REPUBLIC 7-9 (2016), https://www.state.gov/documents/organization/265752.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: LAOS 5-7 (2016), https://www.state.gov/documents/organization/265560.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: LIBYA 9-10 (2016), https://www.state.gov/documents/organization/265722.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: MALDIVES 6-8 (2016), https://www.state.gov/documents/organization/265754.pdf; U.S. DEPT OF COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
indicate that it likely views the right as a norm of customary international law, and thus has sufficient opinio uris. Additionally, states that are accused of fair trial violations generally respond by arguing that no such violation occurred or that other states similarly have violated fair trial rights, rather than by contesting the value or
STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: MOLDOVA 11-13 (2016), https://www.state.gov/documents/organization/265662.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: MONGOLIA 7 (2016), https://www.state.gov/documents/organization/265568.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: NIGERIA 12-14 (2016), https://www.state.gov/documents/organization/265500.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: PAKISTAN 15-18 (2016), ttps://www.state.gov/documents/organization/265758.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: RUSSIA 14-16 (2016), https://www.state.gov/documents/organization/265678.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SAUDI ARABIA 13-17 (2016), https://www.state.gov/documents/organization/ 265730.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SIERRA LEONE 8-10 (2016), https://www.state.gov/ documents/organization/265510.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SOUTH AFRICA 12-13 (2016), https://www.state.gov/documents/organization/265514.pdf (noting that South Africa has been particularly criticized by the U.S. State Department for failing to provide access to qualified interpreters and generally having low interpretation standards that compromised the "veracity of the exchange between the defendant and the court"); U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SOUTH SUDAN 9-11 (2016), https://www.state.gov/ documents/organization/265516.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SUDAN 16-18 (2016), https://www.state.gov/ documents/organization/265518.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SYRIA 16-18 (2016), https://www.state.gov /documents/organization/265732.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: TAJIKISTAN 6-8 (2016), https://www.state.gov/documents/organization/265762.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: TURKEY 14-17 (2016), https://www.state.gov/documents/organization/265694.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: TURKMENISTAN 7-8 (2016), https://www.state.gov/documents/organization/26576 4.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: UNITED ARAB EMIRATES 7-9 (2016), https://www.state.gov/documents/ organization/265736.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: UZBEKISTAN 11-12 (2016), https://www.state.gov/ documents/organization/265766.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: VIETNAM 14-16 (2016), https://www.state.gov/documents/organization/265598.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: ZIMBABWE 10-12 (2016), https://www.state.gov/documents/organization/265530.pdf. 2017] The Right to an Interpreter
protection of fair trial rights. 174 This practice suggests that even violators do not wish to be perceived by the international community as such and that they feel compelled to protect the right as an international norm. In that sense, the right to a fair trial is treated by states similarly to well-established norms, such as the prohibition against torture, where states engage in linguistic and legal gymnastics in order to avoid being chastised by the international community for violations. 175 Moreover, over time the right to a fair trial has become a more common protected right in national constitutions. While older constitutions, particular the U.S. Constitution, often offer general due process protections, many of the constitutions drafted after colonial occupation or the end of the Cold War explicitly enumerate the right to a fair trial as a fundamental right protected under the constitution, along with rights such as those to life and liberty.1 7 6 Consequently, states, and especially new states, appear to place increasing importance upon the right to a fair trial over the last few decades, suggesting that while the right may not have been a customary international law norm prior to the Second World War, it is today.
2. The Right to a Fair Trial as Jus Cogens
Some commentators have gone even further and have concluded that the right to a fair trial it not merely a right under customary international law, but has achieved the status of jus
174. See, e.g., State Council Information Office of the People's Republic of China, Human Rights Record of the United States in 2014 (2014), http://news.xinhuanet.com/english/China/2015-06/26/c 134357934.htm (criticizing the lack of fair investigations into police abuses in the United States); Global Times Editorial Board, Gu's Trial will test Principle of Rule of Law, GLOBAL TIMES (July 27, 2012, 5:14 PM), http://www.globaltimes.en/content/723603.shtml (arguing that China should respect the rule of law and allow a fair trial in high- profile civil and criminal proceedings in order to respond to international criticism). 175. However, although the international community in this sense treats the right to a fair trial similarly to the prohibition of torture, the right to a fair trial is likely not a peremptory norm of customary international law, or jus cogens, and thus is quite distinguishable from the prohibition of torture. See infra Part I.C. 176. For instance, the more recently adopted constitutions of Albania, BiH, Croatia, Czech Republic, Eritrea, Latvia, Lithuania, Montenegro, Serbia, South Africa, and South Sudan enumerated the right to a fair trial as a fundamental right with subsidiary rights, similarly to the structure of fair trial rights in the ICCPR and ECHR. See supra Part I.A. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
cogens, a peremptory norm of international law.7 Fair trial rights would thus join the rank of norms such as the prohibition against genocide and torture as norms from which no derogation is ever permitted. However, while the right to a fair trial is certainly an important right in international law, the right faces an internal limitation that may prevent it from achieving the status ofjus cogens. The right to a fair trial is generally considered to be a derogable right in cases of emergency, for instance codified in Article 4 § 2 of the ICCPR.178 As a consequence, some commentators argue that the right to a fair trial cannot achieve the status of jus cogens, as it is not absolute.1 7 9 Nevertheless, while it is contestable whether the right to
177. See Robinson, Right to a Fair Trial, supra note 5, at 7 (arguing that the right to a fair trial is a peremptory norm of general international law); Patrick L. Robinson, Fair but Expeditious Trials, in THE DYNAMICS OF INTERNATIONAL CRIMINAL JUSTICE 169, 171 (Hirad Abtahi & Gideon Boas eds., 2006) (arguing that the fair trial standards enshrined in Article 14 of the International Covenant on Civil and Political Rights 1966, 999 UNTS 171, are of a jus cogens nature); GIDEON BOAS, THE MILOSEVIC TRIAL: LESSONS FOR THE CONDUCT OF COMPLEX INTERNATIONAL CRIMINAL PROCEEDINGS 16-17 (2007) [hereinafter BOAS, MILOSEVIO]; Michail Wladimiroff, Rights of Suspects and Accused, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW 419, 430 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000); ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN INTERNATIONAL LAW 60 (2006); John H. Dingfelder Stone, Assessing the Existence of the Right to Translation under the International Covenant on Civil and PoliticalRights, 16 MAX PLANCK Y.B. U.N. L. 159, 161 (2012); see also GEERT-JAN ALEXANDER KNOOPS, THEORY AND PRACTICE OF INTERNATIONALIZED CRIMINAL PROCEEDINGS 24-25 (2005) (describing procedural due process norms as jus cogens); CASSESE ET AL., supra note 161, at 357 (stating that the "principle of fairness" is a undoubted norm of customary international law and is likely jus cogens due to "the insistence of all states on the importance of fair but expeditious trials"); Sarah H. Cleveland, Norm Internationalizationand US. Economic Sanctions,26 YALE J. INT'L L. 1, 29 (2001) (noting that the right to a fair trial may be approaching the status of a customary obligation erga omnes); Evan J. Criddle & Evan Fox-Decent, A FiduciaryTheory ofJus Cogens, 34 YALE J. INT'L L. 331, 371 (2009) (noting that a few scholars have argued that due process should be recognized as a peremptory norm). 178. ICCPR, supra note 12, art. 14. But see Article 19 v. Eritrea, Case No. 275/03, 98 (African Comm'n H.P.R. May 30, 2007) (noting that the right to a fair trial cannot be derogated from for any reason and in any circumstance); see also Nsongurua J. Udombana, The 60th Anniversary of the Declaration of Human Rights: A Reality Check: Mission Accomplished? An Impact Assessment of the UDHI in Africa, 30 HAMLINE J. PUB. L. & POL'Y 335, 376 (2008) (describing the African Commission's holding in the Eritrea Case). 179. See Michael Byers, Book Review, 101 A.J.I.L. 913, 916 (2007) (reviewing ORAKHELASHVILI, supra note 177) (rejecting the notion that derogable rights such as due process and the right to a fair trial can be peremptory norms); 2017] The Right to an Interpreter
a fair trial has or even can become jus cogens, as evidenced by state practice and opiniojuris,the right to a fair trial, as a general right, is a protected right under customary international law.
3. Scope and Content of the Right to a Fair Trial The right to a fair trial can thus be considered a norm of customary international law. Yet, that conclusion may have little practical meaning for defendants in national courts who have suffered a particular violation of their fair trial rights. While the right is protected almost universally outside of customary international law, the actual scope and content of the right is difficult to ascertain.180 Indeed, in considering a Vienna Convention on Consular Relations (hereinafter VCCR) claim in the 2006 Vienna Convention Decision, the German Federal Constitutional Court noted that the right to a fair trial "does not contain explicit rules and prohibitions in detail" and consequently these rules are to be clarified by the national 1 8 1 courts. National constitutions that explicitly guarantee the right to a fair trial vary significantly in terms of the content of the right. Moreover, even amongst the international human rights treaties, there are discrepancies in the criteria required for a fair trial.12 As just one example, considerable debate has emerged after international courts such as the ICTY have identified certain rights
see also Oona A. Hathaway, Do Human Rights Treaties Make a Difference, 111 YALE L.J. 1935, 1965-66 (2002) (distinguishing the right to a fair trial from the non-derogable jus cogens prohibiting torture and genocide); Mike Madden, Comparative Cherry-Pickingin a Military Justice Context: The Misplaced Quest to Give Universally Expansive Meaning to InternationalHuman Rights, 46 GEO. WASH. INT'L L. REV. 713, 730 (2014) (describing the disagreement between commentators about the status of fair trial rights in customary international law). But see ORAKHELASHVILI, supra note 177, at 60 (stating that certain derogable rights, such as the right to a fair trial, can be peremptory). 180. See Madden, supra note 179, at 731 (noting the difficulty in determining the substance of a customary international right to a fair trial). 181. Bundesverfassungsgericht [BVerfD] [Federal Constitutional Court] Sep. 19, 2006, 2 BvR 2115/01, 2132/01, 348/03 51 (Ger.); see Riley J. Graebner, Note, Dialogue and Divergence: The Vienna Convention on ConsularRelations in German, American, and InternationalCourts, 42 GEO. J. INT'L L. 605, 614-15 (2011). 182. See Stella Burch Elias, Rethinking "Preventive Detention" from a Comparative Perspective: Three Frameworksfor DetainingTerrorist Suspects, 41 COLUM. HUM. RTS. L. REV. 99, 124 (2009) (noting that there is considerable variation around the world as to what constitutes a fair trial). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
as existing within fair trial rights, due to discrepancies between civil and common law jurisdictions on the particular content of the right to a fair trial.18 3 Therefore, even if there is a general right to a fair trial guaranteed under customary international law, it would be difficult to implement such a right in national courts without a guiding treaty such as the ICCPR. More importantly for potential claimants in American courts, the right to a fair trial seemingly lacks the required specificity for an international norm set out in Sosa, which may be fatal if courts interpret the requirements of Sosa to apply beyond ATS cases. 184 As a result, individuals who have suffered violations of the right to a fair trial likely would not be able to rely on that norm alone in national courts due to its lack of clear scope or content. Consequently, there is a need to elucidate the customary international law norms within the right to a fair trial that may independently be considered rights under customary international law, in order to identify those subsidiary rights that may have a greater chance of vindication in national courts than a general customary fair trial norm.
II. RIGHT TO AN INTERPRETER UNDER CUSTOMARY INTERNATIONAL LAW
A. State Practice and Opinio Juris The right to an interpreter is one such right within the broader right to a fair trial that is independently protected as a right under customary international law due to near universal state practice and opinio juri.1 8 5 Similarly to the right to a fair trial, the
183. In 2001 the ICTY Trial Chamber in Milogevic found that an accused has a customary right to self representation, which has been rejected by several commentators. See Prosecutor v. Milosevid, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, 11 (Int'l Crim. Trib. for the former Yugoslavia July 3, 2001); Gideon Boas, Self-Representation before the ICTY,9 J. INT'L CRIM. JUS. 53, 56 (2011) [hereinafter Boas, Self-Representation]; Michael P. Scharf & Christopher M. Rassi, Do FormerLeaders Have an InternationalRight to Self-Representation in War Crimes Trials?,20 OHIO ST. J. Dis. RES. 3, 37-38 (2005). 184. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004); see also Bradley et al., supra note 165, at 896 (describing the heightened standards for customary international law norms set out in Sosa). 185. See BOAS, MILOSEVId, supra note 177, at 17 (stating that the overarching right to a fair trial is a jus cogens norm and that the "provisions 2017] The Right to an Interpreter
right to an interpreter has been enumerated as a right under numerous international human rights conventions and treaties. The right to an interpreter is guaranteed by Article 14 § 3(f) of the JCCPR,186 Article 6 § 3(e) of the ECHR, 187 Article 8 § 2(a) of the ACHR,188 Article 21 § 4(f) of the ICTY Statute,189 Article 20 § 4(f) of the ICTR Statute,190 Article 17 § 4(f) of the SCSL Statute,1 91 Articles 55 and 67 of the Rome Statute, 192 Article 35(f) of the ECCC Charter,193 and Articles 15 and 16 of the SCL Statute. 194 The right to an interpreter has also been clarified by the European Commission in Directive 2010/64/EU 195 and by the Human Rights Committee in General Comment No. 32.196 Migrants may also have a protected right to an interpreter under international human rights norms for migrants. 197 The exception to the universal codification of the right to an interpreter is the African Court on Human and Peoples' Rights, which does not have an enumerated guarantee of the right to an interpreter under the African Charter on Human and Peoples' Rights.1 98 Nevertheless, in 1992 the African Commission on Human and Peoples' Rights adopted a resolution stating that accused persons shall have "the free assistance of an interpreter if they cannot speak the language used in court" due to the relationship of the right to the overarching right to a fair trial. 199 Furthermore, the African Commission on Human and People's Rights found in Malawi African which make up the content or constituent parts of that right are" customary international law). 186. ICCPR, supra note 12, art. 14, para. 3(f). 187. ECHR, supra note 13, art. 6, para. 3(e). 188. ACHR, supra note 15, art. 8, para. 2(a). 189. ICTY Statute, supra note 17, art. 21, para. 4(f). 190. ICTR Statute, supra note 18, art. 20, para. 4(f). 191. SCSL Statute, supra note 19, art. 17, para. 4(f). 192. Rome Statute, supra note 20, art. 55, para. 1(c), art. 67, para. 1(f). 193. ECCC Statute, supra note 21, art. 35(f). 194. STL Statute, supra note 22, art. 15(d), art. 16, para. 4(g). 195. Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the Right to Interpretation and Translation in Criminal proceedings, 2010 O.J. (L 280). 196. General Comment No. 32, supra note 23. 197. See International3grants Bill of Rights: InternationalMigrants Bill offRights, With Commentary,28 GEO. IMMIGR. L.J. 23, 60 (2013). 198. African Charter, supra note 16, art. 7. 199. African Commission on Human and Peoples' Rights, "Resolution on the Right to Recourse and Fair Trial", Eleventh Session, 2-9 March 1992, para. 2(e)(iv). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Association and Others v. Mauritaniathat the right to an interpreter was included within an accused person's right to a defense under the African Charter.200 In addition to international instruments, Professor Bassiouni has identified the right to an interpreter as guaranteed by thirty-two national constitutions 201: Antigua and Barbuda, 202 Bahamas, 203 Barbados,20 4 Belize,2 °5 Botswana,2 °6 Canada,20 7 Dominica,2 °s Estonia,2 °9 Ethiopia, 210 Fiji, 211 Gambia, 212 Grenada, 213 Guyana, 214 Jamaica, 215 2 16 8 Kenya, Kiribati, 217 Malta,2 1 Mauritius, 219 Nauru, 22o Nicaragua,22 1
200. Malawi African Association and Others v. Mauritania, Case No. 54/91, 97 (African Comm'n H.P.R. May 11, 2000). 201. Bassiouni, supra note 24, at 284. 202. THE ANTIGUA AND BARBUDA CONSTITUTIONAL ORDER 1981, ch. II § 15(2)(f). 203. THE CONSTITUTION OF THE COMMONWEALTH OF THE BAHAMAS, June 20, 1973, ch. III § 20(2)(f). 204. THE CONSTITUTION OF BARBADOS Nov. 22, 1966, ch. III § 18(2)(f). 205. BELIZE CONSTITUTION ACT Sept. 21, 1981, pt. II § 6(3)(f) 206. CONSTITUTION OF BOTSWANA, 1966 (as amended up to 2006), ch. II § 10(2)(f). 207. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act, 1982, c. 11 (U.K.), pt I § 14. 208. CONSTITUTION OF THE COMMONWEALTH OF DOMINICA Nov. 3, 1978, § 8(2)(f). 209. CONSTITUTION OF THE REPUBLIC OF ESTONIA June 28, 1992, § 21. 210. CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA Dec. 8, 1994, art. 20(7). Note that Prof. Bassiouni's study incorporated an earlier version of Ethiopia's Constitution that also had a provision protecting the right to an interpreter but was placed in a different chapter. 211. CONSTITUTION OF THE REPUBLIC OF FIJI Sep. 6, 2013, § 14(2)(i). Note that Prof Bassiouni's study incorporated an earlier version of Fiji's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. 212. CONSTITUTION OF THE REPUBLIC OF THE GAMBIA 1997, § 24(2)(f). Note that Prof Bassiouni's study incorporated an earlier version of Gambia's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. 213. THE GRENADA CONSTITUTION ORDER Dec. 19, 1973, ch. I § 8(2)(f). 214. THE GRENADA CONSTITUTION ORDER Feb. 20, 1980, pt. 2, tit. 1, art. 144(2)(f). 215. CONSTITUTION OF JAMAICA July 25, 1962, ch. III § 20(6)(e). 216. THE CONSTITUTION OF KENYA Dec. 27, 2010, ch. IV, art. 50(2)(m). Note that Prof Bassiouni's study incorporated an earlier version of Kenya's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. 217. THE KIRIBATI INDEPENDENCE ORDER [CONSTITUTION] June 26, 1979, ch. II § 10(2)(fP. 2017] The Right to an Interpreter
Nigeria, 222 Papua New Papua New Guinea,223 Peru, 224 Romania, 225 St. 7 22 229 Kitts and Nevis, 226 Sierra Leone, 22 Solomon Islands, 1 Swaziland,
218. CONSTITUTION OF MALTA Sept. 21, 1964, ch. IV § 39(6)(e). 219. CONSTITUTION OF THE REPUBLIC OF MAURITIUS Mar. 12, 1968, ch. II § 10(2)(f). 220. CONSTITUTION OF NAURU May 17, 1968, pt. II § 10(3)(d). 221. CONSTITUCION POLTICA DE LA REPUBLICA DE NICARAGUA [CONSTITUTION] tit. IV, ch. I, art. 34(6), LA GACETA, DIARO OFICIAL [L.G.] 9 January 1987. 222. CONSTITUTION OF NIGERIA (1999), § 366(e). Note that Prof. Bassiouni's study incorporated an earlier version of Nigeria's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. 223. CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA Sept. 16, 1975, pt. III, div. 3(B), art. 37(4)(d). 224. POLITICAL CONSTITUTION OF PERU, DEC. 31, 1993, as amended by Law No. 2942 (2009), tit. I, ch. I, art. 2(19). Note that Prof. Bassiouni's study incorporated an earlier version of Peru's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. 225. CONSTITUTION OF ROMANIA Nov. 21, 1991, tit. III, ch. VI § I, art. 128. Note that Prof. Bassiouni's study incorporated an earlier version of Romania's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. 226. STATUTORY INSTRUMENTS, 1983 NO. 881, SAINT CHRISTOPHER AND NEVIS [CONSTITUTION] June 22, 1983, ch. II § 10(2)(f) (St. Kitts and Nevis). Note that Professor Bassiouni used the spelling, "St. Christopher-Nevis". 227. THE CONSTITUTION OF SIERRA LEONE Oct. 1, 1991, ch. III § 23(5)(e). 228. THE CONSTITUTION OF SOLOMON ISLANDS July 7, 1978, ch. II § 10(2)(f). 229. THE CONSTITUTION OF THE KINGDOM OF SWAZILAND ACT, 2005 Feb. 8, 2006, ch. III § 21(2)(g). Note that Prof. Bassiouni's study incorporated an earlier version of Swaziland's Constitution that also had a provision protecting the right to an interpreter but was placed in a different chapter. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Trinidad and Tobago, 230 Tuvalu, 231 Uganda, 232 Zambia 233 and 34 Zimbabwe. Other national constitutions not identified by Professor Bassiouni that explicitly protect the right to an interpreter are: Afghanistan, 235 Albania, 236 Angola, 237 Armenia, 238 Azerbaijan, 239 Bolivia, 240 China, 241 Croatia, 242 Cyprus, 243 Czech Republic, 244 Ecuador, 245 Finland, 246 Georgia, 24 Ghana, 248 Italy, 249 KsoVO, 250
230. CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ACT Mar. 29, 1976, amended Oct. 31, 2000 by Act No. 29 of 1999, ch. I, pt. I § 5(2)(g). 231. THE CONSTITUTION OF TUVALU 1986, pt. II, div. 3(A) § 22(3)(g). 232. CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995 Oct. 8, 1995, as amended Sept. 30, 2005, ch. IV § 28(3)(f). Note that Prof. Bassiouni's study incorporated an earlier version of Uganda's Constitution that also had a provision protecting the right to an interpreter but was placed in a different chapter. 233. CONST. OF ZAMBIA (1996), as amended Jan 5, 2016, pt. III, art. 18(2)(f). Note that Prof. Bassiouni's study incorporated an earlier version of Zambia's Constitution that also had a provision protecting the right to an interpreter but was placed in a different article. Also note that Zambia's constitution was amended on Jan. 5, 2016; however the amendments do not appear to have altered Part III on fundamental rights and freedoms of the individual. 234. CONSTITUTION OF ZIMBABWE Dec. 21, 1979 , as amended Mar. 16, 2013, ch. IV, pt. II § 70(1)(j). Note that Prof. Bassiouni's study incorporated an earlier version of Zimbabwe's Constitution that also had a provision protecting the right to an interpreter but was placed in a different chapter. 235. CONSTITUTION OF THE ISLAMIC REPUBLIC OF AFGHANISTAN Jan. 26, 2004, ch. VII, art. 135. 236. KUSHTETUTA E REPUBLIKES SE SHQIPEISE [CONSTITUTION] Nov. 28, 1998, pt. II, ch. II arts. 28, 31 (Alb.). 237. CONSTITUTION OF ANGOLA 2010, tit. II, ch. II, sec. II, art. 63(i). 238. CONSTITUTION OF THE REPUBLIC OF ARMENIA July 5, 1995, ch. II., art. 16. 239. CONSTITUTION OF THE AZERBAIJAN REPUBLIC Nov. 12, 1995 ch. VII, art. 127, sec. 10. Note that Azerbaijan does not have an enumerated right to a fair trial but does protect the right to an interpreter. 240. CONSTITUCION POLITICA DEL ESTADO [CONSTITUTION] Jan. 25, 2009, art. 120(11) (Bol.). Note that Prof. Bassiouni's study incorporated an earlier version of Bolivia's Constitution that did not have an provision guaranteeing the right to an interpreter. 241. XIANFA [CONSTITUTION], art. 134 (1982) (China). Note that China does not have an enumerated right to a fair trial but does protect the right to an interpreter. 242. CONSTITUTION OF THE REPUBLIC OF CROATIA July 6, 2010, art. 29. 243. CONSTITUTION OF THE REPUBLIC OF CYPRUS July 1960, art. 12(5)(e), art. 303(e). 244. CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS [Constitution] Dec. 16, 1992, art. 37(4) (Czech.). 245. CONSTITUTION OF THE REPUBLIC OF ECUADOR Oct. 20, 2008, art. 76(7)(f). 2017] The Right to an Interpreter
Lesotho, 251 Lithuania, 252 Malawi, 253 Maldives, 254 Mongolia, 255 Montenegro, 256 New Zealand,257 Paraguay,258 Serbia,25 9 Saint Lucia,260 Saint Vincent and the Grenadines, 261 Samoa, 262 Seychelles, 263 Slovakia,264 Somalia and Somaliland,265 South Africa,266 Sri Lanka,267 Tajikistan, 268 Turkmenistan, 269 Uzbekistan, 270 and Vanuatu. 271
246. CONSTITUTION OF FINLAND June 11, 1999, § 17. Note that section 17 states that the rights of persons in need of an interpreter or translator will be set down by an Act. 247. CONSTITUTION OF GEORGIA Aug. 24, 1995, art. 85(2). 248. CONSTITUTION OF THE REPUBLIC OF GHANA 1992, art. 19(2)(d), (h). 249. ART. 111 COSTITUZIONE [CONSTITUTION] (It.). 250. CONSTITUTION OF THE REPUBLIC OF KOSOVO 2008, arts. 29, 30. 251. CONSTITUTION OF LESOTHO 1993, art. 12(2)(f). 252. CONSTITUTION OF THE REPUBLIC OF LITHUANIA Oct. 25, 1992, art. 117. 253. CONSTITUTION OF THE REPUBLIC OF MALAWI May 16, 1994, art. 42(2)(f)(ix). 254. CONSTITUTION OF THE REPUBLIC OF THE MALDIVES 2008, art. 51(d). 255. CONSTITUTION OF MONGOLIA Jan. 13, 1992, art. 53. 256. CONSTITUTION OF MONTENEGRO 2007, arts. 29, 37. 257. Bill of Rights Act 1990, S 24(g) (N.Z.). 258. CONSTITUTION OF PARAGUAY June 20, 1992, art. 12(4). 259. CONSTITUTION OF THE REPUBLIC OF SERBIA 2006, art. 32. 260. SAINT LUCIA CONSTITUTION ORDER Dec. 20, 1978, ch. I, art. 8(2)(b), (t). 261. THE SAINT VINCENT AND THE GRENADINES CONSTITUTION ACT July 26, 1979, ch. I, art. 8(2)(f). 262. CONSTITUTION OF THE INDEPENDENT STATE OF WESTERN SAMOA Oct. 28, 1960, pt. II, art. 9(4)(e). 263. CONSTITUTION OF THE REPUBLIC OF SEYCHELLES June 21, 1993, art. 19(2)(f). 264. USTAVA SLOVENSKEJ REPUBLIKY [CONSTITUTION] Sept. 3, 1992, art. 47(4) (Slovk.). 265. THE FEDERAL REPUBLIC OF SOMALIA PROVISIONAL CONSTITUTION Aug. 1, 2012, art. 35(10). In Somaliland, defendants are provided with free interpreters by the Somaliland government. See U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SOMALIA 10 (2016), https://www.state.gov/documents/organization/265512.pdf. 266. S. AFR. CONST., 1996, art. 35(3)(k). 267. THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Sept. 19, 1978, art. 24(3). Note that Prof. Bassiouni's study did not list the Sri Lankan Constitution as guaranteeing the right to an interpreter, despite the 1978 Constitution containing an article on language rights in the country generally and language rights in courts specifically. 268. CONSTITUTION OF THE REPUBLIC OF TAJIKISTAN June 22, 2003, ch. VIII, art. 88. 269. CONSTITUTION OF TURKMENISTAN 2008, sec. VI, art. 106. 270. CONSTITUTION OF THE REPUBLIC OF UZBEKISTAN Dec. 8, 1992, pt. V, ch. XXII, art. 115. 271. CONSTITUTION OF THE REPUBLIC OF VANUATU July 30, 1980, ch. II, pt. 2, art. 5(2)(c), (d). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Additionally, the right to an interpreter is explicitly protected in the United Kingdom through the Human Rights Act.27 2 In addition to these constitutions that have explicit guarantees to interpretation rights in criminal proceedings, some national constitutions have provisions that would in practice guarantee language assistance for individuals who do not speak the language used in court. Neither the right to an interpreter nor the right to be informed of the charges against oneself in a language one understands are explicitly guaranteed in the Constitution of Bosnia and Herzegovina; however, Art. II para. 2 states that the rights and freedoms enumerated in the ECHR, which includes the right to an interpreter, are directly applicable in BiH and have priority over all other law. 2 3 The right to an interpreter is not enumerated in the 2003 Draft Constitution of the State of Palestine or the constitutions of the D.R.C., Eritrea, Namibia, or Switzerland, but in all an accused has a right to be informed of the charges against him in a language he understands. 4 In the United States, due process rights under the Fifth, Sixth and Fourteenth Amendments provide protection for the right to 2 an interpreter . 75 Additionally, the right to a court interpreter in federal court is protected by the Court Interpreters Act of 1978 and cases pre-dating the Act, such as United States ex rel. Negron v. New York.27 6 In California and New Mexico, the right to an interpreter is protected by the state constitution.2 7 The right to an interpreter is 27 8 27 9 also protected in other states by state statutes or common law.
272. Human Rights Act, 1998, c. 42, § 1(3), sch. 1, pt. 1, art. 6(3)(a), (e) (Eng.). 273. CONSTITUTION OF BOSNIA AND HERZEGOVINA art. II, para. 2. 274. CONSTITUTION OF THE STATE OF PALESTINE Mar. 25, 2003, ch. II., art. 29; THE CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO 2005, tit. II, ch. I, art. 18 (note that Professor Bassiouni's study originally included the Constitution of Zaire, which did not provide for fair trial or interpretation rights); QwAM ERITREA [CONSTITUTION] ch. III, art. 17(3); THE CONSTITUTION OF THE REPUBLIC OF NAMIBIA 2010, ch. 3, art. 11(2); BUNDESVERFASSUNG [BV] [CONSTITUTION] Apr. 18, 1999, SR 101, art. 31, para. 2 (Switz.). 275. U.S. CONST. amends. V, VI, XIV; see also MASON, supra note 7, at 1. 276. Court Interpreters Act, 28 U.S.C. § 1827 (2012); United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970). 277. CAL. CONST. art. I, § 14; N.M. CONST. art. II § 14; see SUSAN BERK-SELIGSON, THE BILINGUAL COURTROOM 26 (1990). 278. See ALA. CODE § 15-1-3 (West 2016); ARIZ. REV. STATE. ANN. § 12-241 (West 2016); ARK. CODE ANN. § 16-10-1101 (West 2013); COLO. REV. STAT. § 18-1- 403 (West 2014); DEL. SUPER. CT. CRIM. PROC. R. 28; FLA. STAT. ANN. § 29.004 (West 2016); GA. CODE ANN § 15-1-14 (West 2013); HAW. R. PENAL PROC. 28 (West 2017] The Right to an Interpreter
Finally, Title VI of the Civil Rights Act of 1964 has been interpreted to require state courts receiving federal funds to provide interpreters, 280 which was enforced in 2000 by Executive Order 13166.281
2012); IDAHO R. CRIM. PROC. 28 (1980); 725 ILL. COMP. STAT. 5/104-22 (West 2016); IND. CODE § 34-45-1-3 (West 2016) (providing for an interpreter in civil proceedings, which in conjunction with IND. CODE § 35-35-2-2 (West 2016) provides also for interpreters in criminal proceedings); IOWA CODE § 622A.2 (West 2016); KAN. STAT. ANN. § 75-4351 (West 2017); KY. REV. STAT. ANN. § 30A.410 (West 2017); LA. CODE CRIM. PROC. art. 25.1 (2008); ME. R. U. CRIM. PROC. 28 (West 2016); MD. CODE ANN., CRIM. PROC. § 1-202 (LexisNexis 2012); MASS. GEN. LAWS. ch. 211c, § 2 (2011); MICH. COMP. LAWS ANN. § 775.19a (2006); MINN. STAT. § 611.30 (2009); MISS. CODE ANN. § 9-21-79 (2014); MO. REV. STAT. § 476.803 (West 1999); NEB. REV. STAT § 6-703 (2011); NEV. REV. STAT. Ann. § 50.0515 (LexisNexis 2012); N.H. SUPER. CT. CIV. R. 47; N.J. STAT. ANN § 2B:8-1 (2015); Rule 28, N.D. R. CRIM. PROC.; OHIO REV. CODE ANN. § 2311.14 (West 2004); OR. REV. STAT. § 45.275 (2014); 42 PA. CONST. STAT. § 4412 (2004); R.I. GEN. LAWS § 8-19-3 (2012); S.C. CODE ANN. § 17-1-50 (2014); S.D. CODIFIED LAWS § 23A-22- 11 (2004); TENN. R. CRIM. PROC. 28; TEx. GOV T CODE ANN. § 57.002 (West 2013); VT. STAT. ANN. tit. 1, § 332 (2015); VA. CODE ANN. § 19.2-164 (2015); WASH. REV. CODE § 2.42.010 (2012); W.VA. CODE § 5-14A-3 (2013); WIS. STAT. § 885.37 (2015); WYO. R. CRIM. PROC. 28; see also Jose Julian Alvarez-Gonzalez, Law, Language and Statehood: The Role ofEnglish in the GreatState ofPuerto Rico, 17 LAW & INEQ. 359, 369 (1999) (noting that Puerto Rico will provide an interpreter for criminal defendants who do not have an adequate command of Spanish). 279. See Tsen v. State, 176 P.3d 1, 8 (Alaska Ct. App. 2008) (noting that the state law on the right to an interpreter was undefined by case law or statute and thus required the court to look to federal law); State v. Natividad, 526 P.2d 730, 733 (Ariz. 1974); State v. Munoz, 659 A.2d 683, 696 (Conn. 1995); Garcia v. State, 511 A.2d 1, 4 (Del. 1986); State v. Inich, 173 P. 230, 234 (Mont. 1918) (holding that the trial court has the discretion to appoint an interpreter); People v. Ramos, 258 N.E.2d 197, 198 (N.Y. 1970) (holding that N.Y. Crim. Proc. Law § 260.20 requires that a defendant who cannot understand English to have testimony translated to him in a language that he understands); Wise v. Short, 107 S.E. 134, 136 (N.C. 1921) (holding that the court has the inherent power to appoint an interpreter); Parra v. Page, 430 P.2d 834, 837 (Okla. Crim. App. 1967) (holding that the defendant's fundamental rights were violated when he was denied an interpreter); State v. Masato Karumai, 126 P.2d 1047, 1050 (Utah 1942) (holding that the court may, at the State's expense, appoint an interpreter where necessary to prevent injustice). 280. See Lau v. Nichols, 414 U.S. 563, 568-69 (1974); ROSEANN DUENAS GONZALEZ, VICTORIA F. VASQUEZ & HOLLY MIKKELSON, FUNDAMENTALS OF COURT INTERPRETATION: THEORY POLICY, AND PRACTICE 9-10 (2nd ed. 2012); see also Maxwell Alan Miller et al., Language in the Law: Finding Justice in Translation, 14 HARV. LATINO L. REV. 117, 130 (2011) (noting that under Title VI of the Civil Rights Act of 1964 state courts that receive federal funds are required to make interpreters available); Laura Abel, Language Access in State Courts 44 n.6 (Brennan Ctr. For Justice, Public Law & Legal Theory Research Series Working Paper No. 10-10, 2010) (noting that Title VI prohibits actions that result in discrimination against people who do not speak English). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Additionally, language assistance is protected in American Article 5 military tribunals and Combatant Status Review Tribunals for unlawful combatants,2 82 as well as in Canadian military tribunals for unlawful combatant status reviews.2 83 The protection of the right to an interpreter in such tribunals is interesting, as it suggests that interpretation rights extend to international humanitarian law and 2 84 may not be derogable in situations where other fair trial rights are. Finally, international courts have demonstrated the existence of international norms regarding language assistance by referencing fundamental judgments from different courts and tribunals.2 85 This practice indicates that while interpretation rights may be explicitly guaranteed by the JCCPR or a regional human rights convention, the right is sufficiently similar across jurisdictions to be considered not just a statutory right but also an international norm. Furthermore, some commentators have indicated that the right to translation of documents, itself a subset of the right to an interpreter, has reached the status of customary international norm, suggesting that the 2 86 broader right to an interpreter must have as well. Thus, the right to an interpreter is widely protected by international instruments and national constitutions. Although the right faces the same difficulties for establishing opinio juris as the right to a fair trial,287 in the case of interpretation rights, where there is little indication that any state could be seen as a persistent objector
281. Exe. Order No. 13166, 65 Fed. Reg. 50,121 (Aug. 11, 2000); see GONZALEZ ET AL., supra note 280, at 9-10. 282. Thomas J. Bogar, Unlawful Combatant or Innocent Civilian?A Call to Change the CurrentMeans for DeterminingStatus ofPrisonersin the Global War on Terror,21 FLA. J. INT'L L. 29, 61 (2009). 283. Id. at 65. 284. See infra notes 302-04 and accompanying text. 285. See, e.g., Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01-04- 01/06-268, Decision on the Requests of Defence of 3 and 4 July 2006, 6 n.14 (Aug. 4, 2006, p. 6 n.14 (relying in part on the Leudicke v. Germanyand Kamasinski v. Austria decisions from the ECtHR); Prosecutor v. Bagilishema, Case No. ICTR 95- 1A-A, Appeal Judgement, 12 (July 3, 2002) (citing the ICTY in Prosecutor v. Kupreskid, Case No. IT-95-16-A, Appeal Judgement, 32 (Int'l Crim. Trib. for the former Yugoslavia Oct. 23, 2001)); Harward v. Norway, Comme'n No. 451/1991, 7.4 (Hum. Rts. Comm. July 15, 1994) (holding in favor of the State Party who cited the ECtHR's decision in Kamasinski v. Austria as part of their submission). 286. See generally Dingfelder Stone, supra note 177, at 159 (describing arguments that the right to translation is a customary norm of customary international law as embodied in the ICCR and Rome Statute); see also infra Part II.B. 287. See supra Part I.B. 2017] The Right to an Interpreter
in this case, state practice and protection by international instruments may provide sufficient evidence of opinio jurs 88 For instance, it is interesting to note that states which are regularly accused of general fair trial violations such as Azerbaijan and China actually explicitly protect the right to an interpreter in their national constitutions, 289 suggesting that interpretation rights are subjectively valued by states even when the broader fair trial norm is not necessarily. Some commentators have also argued that where there is a great deal of sufficient state practice, there may be less need for evidence of opinio juris, 290 although this view has recently been rejected by the International Law Commission. 9 1 Therefore, together, the widespread protection of the right to an interpreter in international instruments and national constitutions and statutes gives substantial evidence of state practice and opinio juris that the right to an interpreter is a norm under customary international law.
B. Scope and Content of the Right to an Interpreter In addition to satisfying the requirements for customary international norm status of state practice and opiniojuris,the right to an interpreter additionally satisfies the heightened requirements
288. See Michael B. Akehurst, Custom as a Source of InternationalLaw, 47 BRIT. Y.B. INT'L L. 1, 12 (1974) (arguing that a small amount of practice is sufficient to prove a rule of customary international law where there is no evidence presented against it); Scharf, supra note 157, at 312, 314, 316 (noting that international legal custom can be evidenced by silence, inaction, spontaneous compliance, and sufficient representation); see also International Law Commission, supra note 155, 71 (stating that the evidence needed to determine opinio juris may "depend upon the nature of the rule and the circumstances in which the rule falls to be applied."). 289. See supra notes 239 and 241. 290. See Kirgis, supra note 157, at 149; see also John Tasioulas, In Defense of Relative Normativity: Communitarian Values and the Nicaragua Case, 16 OXFORD J. LEG. STUD. 85, 109 (1996) (supporting Professor's Kirgis's "sliding scale" view of opiniojuris); Maurice H. Mendelson, The Formation of Customary InternationalLaw, 272 RECUEIL DES COURS 165, 384-86 (1998) (also supporting Professor's Kirgis's "sliding scale" view of opiniojuris). Some commentators have even argued that opinio juris is not necessary for the formation of a norm of customary international law. See Hersch Lauterpacht, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT 380 (1958); Akehurst, supra note 288, at 32; Mendelson, supra at 289; see also Guzman, supra note 157, at 145 (noting that some prominent commentators view opiniojurisas unnecessary for the formation of customary international norms). 291. See International Law Commission, supra note 155, 21-32 (reaffirming that the formation of customary international law requires the two elements of a general practice accepted as law). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
set out in Sosa for customary international laws to be applied in U.S. federal courts.292 Although Sosa concerned claims brought under the ATS, 293 and thus its holding may be limited to customary international law claims under the ATS, it is nonetheless important that the right to an interpreter satisfies even the Sosa standards, as it opens the possibilities for claims of interpretation violations to be brought in the United States. Unlike the right to a fair trial, the right to an interpreter is a more specified right, with more or less consistent definitions between international instruments such as the ICCPR and ECHR and interpretations between international bodies such as the Human Rights Council and ECtHR.29 4 As an international customary law norm, the right to an interpreter protects the right to language assistance both pre-trial and during trial, and during any interviews or interrogations with authorities. 295 The customary right to an interpreter also imposes a positive obligation upon the competent authorities to independently ensure that the accused is able to understand the proceedings, and thus a violation can occur even when the accused has not notified the court of his difficulties2 96 or
292. See supra note 171 and accompanying text. 293. Sosa v. Alvarez-Machain, 542 U.S. 692, 697 (2004). 294. One area of potential variance between the Human Rights Committee and ECtHR concerns whether the right to an interpreter is an individual right belonging to the accused alone, or a right belonging to the "defense." For instance, in Harward v. Norway, the Human Rights Committee did not find a violation where the accused did not have separate language assistance but the accused's defense counsel could speak the language used in court and could interpret and translate for the accused. See Harward v. Norway, Commc'n No. 451/1991, 9.5 (Hum. Rts. Comm. July 15, 1994). In contrast, the ECtHR in Cuscani v. the UnitedIangdomfound that the defense counsel's language skills were insufficient protection of the accused's fair trial rights and that the accused should have been provided with a formal interpreter. See Cuscani v. the United Kingdom, App. No. 32771/96, 38 (Eur. Ct. H.R. Sept. 24, 2002). However, this discrepancy may exist due to the particular facts of the cases, as in Cuscani the defense counsel appeared to have grossly exaggerated his language skills, whereas in Harward the defense counsel was competent in the accused's language. 295. See Singarasa v. Sri Lanka, Commc'n No. 1033/2001, 7.2 (Hum. Rts. Comm. Aug. 23, 2004); Saman v. Turkey, App. No. 35292/05, 36 (Eur. Ct. H.R. Apr. 5, 2011). 296. However, where the accused makes no challenges to the quality of the interpretation, fails to request a replacement interpreter, and appears to understand the proceedings, the court may assume that interpretation is sufficient, so long as language assistance would have been available had it been requested. Protopapa v. Turkey, App. No. 16094/90, 86 (Eur. Ct. H.R. Sept. 22, 2009). 2017] The Right to an Interpreter
when the defense counsel has assured the court that accused does not need language assistance.297 Finally, the right to an interpreter under international law is an absolute right to free language assistance, regardless of the accused person's finances, and costs cannot be retrieved by the court after the proceedings, even if the accused is convicted.298 The greatest variation between international instruments with regard to the right to an interpreter is whether an accused person is entitled to the free translation of documents, as some instruments have not explicitly enumerated this right, while others have. 299 However, whether explicitly enumerated as a separate right or found to be an implied right within the right to an interpreter, international courts and tribunals have not substantially disagreed on the scope of translation rights, generally finding that translation is guaranteed as required to safeguard the principles of fairness. 30 Additionally, the scope and content of the right to an interpreter does not vary between civil and common-law jurisdictions. Consequently, the right is more specified and consistent across legal systems than other subsidiary fair trial rights, such as the right to counsel.0 1
297. See Brozicek v. Italy, App. No. 10964/84, 9[ 41 (Eur. Ct. H.R. Dec. 19, 1989); Cuscani v. the United Kingdom, App. No. 32771/96, 38 (Eur. Ct. H.R. Sept. 24, 2002); see also Directive 2010/64/EU, supra note 195, art. 2 § 4. Compare also the European approach to the reality of interpretation protections in U.S. courts where trial judges have the ultimate discretion. See Infra Part III.A. 298. See Guesdon v. France, Commc'n No. 219/1986, 10.2 (Hum. Rts. Comm. July 25, 1990); Isyar v. Bulgaria, App. No. 391/03, 45-48 (Eur. Ct. H.R. Nov. 20, 2008); Hovanesia v. Bulgaria, App. No. 31814/03, 48-52 (Eur. Ct. H.R. Dec. 21, 2010); Luedicke, Belkacem and Koc v. Germany, App. Nos. 6210/73, 6877/77, 7132/75, 48 (Eur. Ct. H.R. Mar. 10, 1978). The only exceptions to the free provision of language assistance have been seen in the case where the accused has failed to appear at the proceedings. In those cases, courts have found that the accused is entitled to "free" interpretation services when they "appear" in court, and since the accused failed to "appear", he was not entitled to "free" interpretation services. See Fedele v. Germany, App. No. 11311/84, 6 (Eur. Ct. H.R. Dec. 9, 1987). 299. Cf ECHR, supra note 13, art. 6, para. 3(e); Rome Statute, supra note 20, art. 67, para. 1(f); see generally Dingfelder Stone, supra note 177, at 159 (describing the scope of the right to translation of documents under the ICCPR and customary international law). 300. Cf Kamasinski v. Austria, App. No. 9783/82, 62 (Eur. Ct. H.R. Dec. 19, 1989); Harward v. Norway, Commc'n No. 451/1991 (Hum. Rts. Comm. July 15, 1994). 301. While the right to counsel is itself uncontroversial, commentators and courts have disagreed as to whether the right to counsel entails also a right to COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Moreover, the right to an interpreter also appears to be a non-derogable right in times of emergency. The right to an interpreter is not an absolute right in and of itself; rather it is guaranteed in order to safeguard the right to a fair trial. 302 Consequently, certain limitations may be placed on the right where it causes no prejudice to the accused person or where a balance must be struck between the right to an interpreter and another fair trial right, most often the right to a speedy trial. 0 3 However, even in situations of emergencies and under international humanitarian law, states 3 have protected the right to an interpreter for accused persons . 04 Consequently, the right has a clear scope and definition both in times of emergency and in normal application. The right to an interpreter is also likely a right that would have been protected at the time of the founding of the United States, since, as a fair trial right, it can be traced to the Sixth Amendment. Indeed, court interpreters have been documented as being used in the United States since at least 1808.305 Thus, defendants claiming a violation of the right to an interpreter in ATS cases might face an easier battle than did the defendant in Sosa in proving a right against arbitrary detention. 306 Moreover, according to Professors Bradley, Goldsmith, and Moore, the Court in Sosa implied that state practice, as evidence through national constitutions, "might be influential in establishing that nations had accepted the norm in question,' 307 and
self-representation, as the ICTY Trial and Appeals Chambers concluded in Mi]ogevi. See Prosecutor v. Milosevid, Case No. IT-02-54-A1R73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, 11 (Int'l Crim. Trib. for the Former Yugoslavia July 3, 2001); Boas, Self-Representation,supra note 183, at 56; Scharf & Rassi, supra note 183, at 15. 302. See Diallo v. Sweden, App. No. 13205/07, 25 (Eur. Ct. H.R. Jan. 5, 2010) (noting that in some circumstances there may be compelling reasons to restrict the right to an interpreter). 303. See generally Sandel v. the Former Yugoslav Republic of Macedonia, App. No. 21790/03, 44 (Eur. Ct. H.R. May 27, 2010) (detailing the efforts of Macedonian authorities to find a Hebrew-Macedonian interpreter for the proceedings which caused the proceedings to be unduly delayed under Article 6 of the ECHR). 304. See generallyBogar, supra note 282, at 65 (describing the right to an interpreter in U.S. and Canadian military tribunals). 305. In re Norberg, 4 Mass. (1 Tyng) 81 (Mass. 1808) (swearing in an interpreter for a Swedish witness for a grand jury who did not speak English); see also GONZALEZ ETAL., supra note 280, at 4. 306. See Sosa v. Alvarez-Machain, 542 U.S. 692, 737 (2004). 307. Bradley et al., supra note 165, at 899. 2017] The Right to an Interpreter
may be more valued than inclusion in international instruments such as the ICCPR and UDHR. ° Therefore, not only is the right to an interpreter a right protected under customary international law, but also a customary international law norm that may be invoked in U.S. courts even under the stricter requirements set out in Sosa.
III. APPLYING THE RIGHT TO AN INTERPRETER IN U.S. COURTS
The right to an interpreter is thus a norm under customary international law, and one that likely has the sufficient specificity, definition, and state practice to satisfy the requirements of even a Sosa analysis of general acceptance and specificity, 309 should that be necessary. Consequently, the right to an interpreter could be invoked as a right under customary international law in U.S. courts, and indeed should be, as the customary international law right to an interpreter likely provides far greater guarantees of language assistance than currently exists in the United States.
A. Federal Courts The Court Interpreters Act of 1978 goes a long way to guarantee the right to an interpreter in federal courts in comparison to the lack of protection prior to its enactment. However, the Act also leaves much to be desired, 310 and provides far fewer guarantees than the customary international law right. Under the Act, an accused is only entitled to interpretation if the need is obvious to the judge or brought to the attention of the judge.3 11 Consequently, the Act does not impose a positive obligation upon the competent authorities to ensure that the accused is able to fully participate in the proceedings, as the customary norm does. 312 In fact, the Court Interpreters Act
308. See id at 898-99. 309. See supra note 171 and accompanying text. 310. See GONZALEZ ETAL., supra note 280, at 7, 174-76, 185-214; Miller et al., supra note 280, at 131; Heather Pantoga, Injustice in Any Language: The Need for Improved Standards Governing Courtroom Interpretationin Wisconsin, 82 MARQ. L. REV. 601 (1999); Mollie M. Pawlosky, Case Note, When Justice is Lost in the "Translation' Gonzalez v. United States, an "Interpretation"of the Court InterpretersAct of 1978, 45 DEPAUL L. REV. 435 (1996); COLUMBIA HUMAN RIGHTS LAW REVIEW, A JAILHOUSE LAWYER'S MANUAL, ch. 16, 493-501 (vol. 6 vol. II, 2005) [hereinafter JLM]. 311. JLM, supra note 310, at 496; see United States v. Fuentes, 563 F.2d 527, 536-37 (2d Cir. 1977); Gonzalez v. United States, 33 F.3d 1047, 1050 (9th Cir. 1994). 312. See supra Part II.B. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
leaves the decision to provide language assistance to the trial judge's discretion, which is consistent with the Supreme Court's reasoning in Perovieh v. UnitedStates. 3 Accordingly, most courts have found that the Constitution does not per se require that every accused person who has demonstrated a need for language assistance be provided with it, opening the possibility for a general fair trial violation in addition to failing to meet international standards for interpretation.314 Aliens are particularly left vulnerable by gaps in the Court Interpreters Act, with the Second Circuit concluding that the Immigration and Naturalization Service is not always required to provide interpreters for aliens, thus leaving aliens especially vulnerable to a violation of their customary international law right to an interpreter. 315 The Court Interpreters Act also does not enumerate a right to translation of documents, and courts have disagreed on what documents an accused is entitled to have translated in order to ensure due process.316 Finally, despite the constitutional requirement for free interpretation services for criminal proceedings in the United States, federal and state courts have often failed to provide free interpretation services for criminal cases, and in particular courts have often tried to recover costs for language assistance from defendants who have not demonstrated their financial need. 317 Therefore, there is both a gap in and a dearth of protection for language assistance in the United States that can be corrected by customary international law. The identification of the right to an interpreter as a norm of customary international law thus does not merely reinforce existing fair trial protections for individuals in the United States, but establishes new standards to which American
313. Perovich v. United States, 205 U.S. 86, 91 (1907) (noting that the decision to appoint an interpreter "is a matter largely at the discretion of the trial court"). 314. JLM, supra note 310, at 497; see United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir. 1980); United States v. Edouard, 485 F.3d 1324, 1337 (11th Cir. 2007); Abdullah v. INS, 184 F.3d 158, 166 (2d Cir. 1999). 315. Abdullah, 184 F.3d at 166. 316. JLM, supra note 310, at 501; see United States v. Quesada Mosquera, 816 F. Supp. 168, 175 (E.D.N.Y. 1993). Cf Sanders v. United States, 130 F. Supp. 2d 447, 449 (S.D.N.Y. 2001); Canizales-Satizabal v. United States, No. 95-1831, 1995 U.S. App. LEXIS 38214, at *3 n.2 (7th Cir. Dec. 20, 1995); United States v. Martinez, 120 F. Supp. 2d 509, 514 (W.D. Pa. 2000); De La Rosa v. United States, CA-No. 94-7623, 1995 U.S. Dist. LEXIS 5721, at *4-7 (E.D. Pa. Apr. 25, 1995). 317. GONZALEZ ETAL., supra note 280, at 73-74. 2017] The Right to an Interpreter
courts should be held and from which new claims of violation could be brought. This Note does not aim to weigh in on the considerable debate over the status of customary international law in federal courts.3 18 Since Sosa this issue has not become any less contested, as "everybody except [Alvarez-Machain] thinks that they won the case."319 As a result, supporters of the "modern" position reason that Sosa vindicates their argument that customary international law is federal common law.32 ° On the other side, "revisionists" also claim a victory, interpreting Sosa as rejecting the "modern" position that customary international law is self-executing federal common law.321 A third approach argues that customary international law is neither state nor federal law, but "general common law. 322 Thus, much controversy remains over the status of customary international law in U.S. federal courts after Sosa. However, Sosa did
318. See generally Curtis A. Bradley & Jack L. Goldsmith, Customary InternationalLaw as Federal Common Law: A Critique of the Modern Position, 110 HARv. L. REV. 815 (1997) (introducing the "revisionist" position); Harold Hongju Koh, Commentary, Is InternationalLaw Really State Law? 111 HARV. L. REV. 1824 (1998) (critiquing the Bradley & Goldsmith argument); Ernest A. Young, Sorting Out the Debate Over Customary InternationalLaw, 42 VA. J. INT'L L. 365 (2002) (describing the debate over customary international law); Daniel J. Meltzer, Customary InternationalLaw, Foreign Affairs, and Federal Common Law, 42 VA. J. INT'L L. 513 (2001) (describing the different arguments in the debate over federal common law and customary international law); Carlos M. Vasquez, CustomaryInternational Law as US. Law: A Critique of the Revisionist and IntermediatePositions and a Defense of the Modern Positon,86 NOTRE DAME L. REV. 1495 (defending the "modern" position as stated in the Restatement (Third)); Gerald L. Neuman, Sense and Nonsense about Customary International Law: A Responses to ProfessorsBradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997) (defending the "modem" position); Beth Stephens, Customary InternationalLaw as Federal Law aifer Erie, 66 FORDHAM L. REV. 393 (1997) (defending the "modern" position). 319. Ralph G. Steinhardt, The Traffic Light Theory of Sosa v. Alvarez Machain, 101 AM. SOC'Y INT'L L. PROC. 272, 272 (2007); see also Julian Ku, A No Decision: Sosa v. Alvarez-Machain and the Debate of the Domestic Status of Customary InternationalLaw, 101 AM. SOC'Y INT'L L. PROC. 261, 263 (2007) (finding that Sosa supports neither the "modern" or "revisionist" position). 320. See also Raven Lidman, Civil Gideon: Creatinga ConstitutionalRight to Counsel in the Civil Context, 15 TEMP. POL. & CIV. RTS. L. REV. 769 (2006) (noting the different arguments of the modem and revisionist positions). 321. See Bradley et al., supra note 165, at 870; David H. Moore, Accommodating Concerns for InternationalLaw and ProperGovernance, 101 AM. SOC'Y INT'L L. PROC. 261, 265 (2007). 322. See Young, supra note 318, at 370; see also Meltzer, supra note 318, at 515 (commenting on Professor Young's general common law argument). COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
not shut the door to such international claims. Provided that the norm alleged meets the requirements set out in Sosa, as the right to an interpreter does, an individual could bring a customary international law claim under the ATS for violations of rights which occurred outside the United States. 2 3 Commentators have also noted that other avenues to federal jurisdiction remain open, such as federal question jurisdiction under 28 U.S.C. § 133 1,324 and that Sosa did not directly address the use of customary international law absent congressional authorization, leaving the door somewhat open for common-law type claims. 325 Consequently, regardless of the relative success of the "modern," "revisionist," or general common law theories in the U.S. Supreme Court, post-Sosa claims of violations of customary international law could likely be brought in U.S. federal courts through one of several different avenues. Customary international law also has not lost its status as a helpful tool for statutory interpretation. 326 Therefore, assuming that the Supreme Court has not completely foreclosed the use of customary international law by federal courts, a claim of a violation of the right to an interpreter may be brought in a U.S. federal court through one of several causes of action. For instance, a customary international law right to an interpreter might be successfully relied upon in a habeas corpus petition. Prior to the Supreme Court's confusing commentary in Sosa, the Kansas District Court in Fernandez v. Wilkinson relied entirely on customary international law in its holding on the prolonged 32 detention of one of the Mariel Cubans. ' After surveying the major human rights treaties for evidence of state practice and opiio juris, the court found that the defendant's arbitrary detention, while not
323. See also Bart M.J. Szewczyk, Customary International Law and Statutory Interpretation:An EmpiricalAnalysis of Federal Court Decisions, 82 GEO. WASH. L. REV. 1118, 1125 (2013) (finding that U.S. courts have generally used customary international law in the context of statutory interpretation and future litigants in ATS cases may be most successful with this approach). 324. See Gwynne Skinner, When Customary InternationalLaw Violations Arise under the Laws of the United States, 36 BROOK. J. INT'L L. 205, 240 (2010). 325. See Martin S. Flaherty, CustomaryInternational Law as FederalLaw Aifer Sosa v. Alvarez-Machain: Introduction: The Path to Sosa, 101 AM. SOC'Y INT'L L. PROC. 261, 263 (2007). 326. See Jordan J. Paust, Customary International Law and Human Rights Treaties are Law of the UnitedStates, 20 MICH. J. INT'L L. 301, 326 (1998); Szewczyk, supra note 323, at 1125. 327. Fernandez v. Wilkinson, 505 F. Supp. 787, 795 (D. Kan. 1980), affd, Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981) (affirming the judgment on statutory grounds). 2017] The Right to an Interpreter
prohibited by the Constitution or statute, was prohibited by customary international law. 28 Moreover, in affirming the judgment on statutory grounds, the Tenth Circuit also noted that "[n]o principle of international law is more fundamental than the concept that human beings should be free from arbitrary imprisonment, 329 and cited the UDHR and ACHR. Other Circuits have taken different approaches to customary international law in considering habeas petitions. After noting that international law was controlling only in the absence of a treaty or a controlling executive, legislative or judicial decision, the 11th Circuit in Garcia-Mir v. Meese found that the "reach of international law [was] interdicted by a controlling judicial decision,"33' the Supreme Court's earlier ruling in Jean v. Nelson.331 In the case of a violation of the right to an interpreter, it is not clear whether a court would consider the Court Interpreters Act a controlling legislative decision, as the Act does not fully set out the scope and content of interpretation rights in the United States, and leaves that job to the courts. As a result, it may be possible to rely solely on a customary international law claim in federal courts for a violation of the right to an interpreter, particularly for the right to translation of documents, which is not covered by the Court Interpreters Act. 332 Therefore, while the success of the claim may vary depending on the Circuit and many ambiguities remain post-Sosa, individuals who have suffered a violation of their interpretation rights may be successful in relying on customary international law in U.S. federal courts and should make such arguments, especially where U.S. statutory protections are insufficient in comparison to international norms.
B. State Courts
Although the right to an interpreter is guaranteed by state statutes and common law, the right to an interpreter is also inadequately protected in U.S. state courts, violating both U.S. due process guarantees and customary international law.333 In addition to
328. Fernandez,505 F. Supp. at 795. 329. Rodriguez-Fernandez,654 F.2d at 1388. 330. Garcia-Mir v. Meese, 788 F.2d 1446, 1455 (11th Cir. 1986). 331. Garcia-Mir,788 F.2d at 1455; see Jean v. Nelson, 472 U.S. 846 (1985). 332. See, e.g., Rodriguez v. Trombley, Case No. 2:06-CV-11795, 2010 U.S. Dist. LEXIS 1444, at *41-44 (E.D. Mich. Jan. 8, 2010) (considering a claim of inadequate interpretation in a petition for habeas relief but concluding that the factual record did not support the claim). 333. See Abel, supra note 280, at 4. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
suffering from the same deficiencies as federal courts, and especially the failure to provide interpreters free of cost for all accused persons and witnesses, state courts are particularly likely to insufficiently protect interpretation rights due to the substantial variance in standards for interpretation between courts, both interstate and intrastate, despite statutory or common law protections existing in every state.334 As a result, customary international law could play a significant role in state courts as well as federal courts, by bringing international standards for the right to an interpreter to individuals engaged in proceedings in state courts. U.S. federal courts have dominated the discussion of customary international law since Professors Bradley and Goldsmith ignited debate in the late 1990s; however, state courts should not be forgotten in the discussion of customary international law. State courts in practice do consider customary international law,335 and defendants in state courts have a long history of raising customary international law defenses.336 Since the ATS has been cut back in scope,337 some commentators believe that there will be an increase in claims brought in state courts for violations of customary international law.338 One subset of defendants who may wish to raise such customary international law claims in state courts are defendants who have been unsuccessful with VCCR claims. Despite the
334. See GONZALEZ ET AL., supra note 280, at 225; see also supra Part II.A. 335. See Jack L. Landau, Customary InternationalLaw in State Courts: A State Court Perspective,20 WILLAMETTE J. INT'L L. DIS. RES. 48, 56 (2012). 336. See, e.g., Cochran & Thompson v. Tucker, 43 Tenn. (3 Cold.) 186 (Tenn. 1866) (considering the laws of war); Hedges v. Price, 2 W.Va. 192 (W.Va. 1867) (considering the laws of war); Capterton v. Martin, 4 W.Va. 138 (W.Va. 1870) (considering the laws of war); Ferguson v. Loar, 68 Ky. 689 (Ky. 1869) (considering the laws of war); Bryan v. Walker, 64 N.C. 141 (N.C. 1870) (considering laws of war); Koonce v. Davis; 72 N.C. 218 (N.C. 1875) (considering the laws of war); Namba v. McCourt, 204 P.2d 569 (Or. 1949); Peters v. McKay, 238 P.2d 225 (Or. 1951) (considering international law arguments for suspending the statute of limitations); see also Gwynne L. Skinner, Beyond Kiobel: Providing Access to JudicialRemedies for Violations of InternationalHuman Rights Norms by TransnationalBusiness in a New (post-iobel)World, 46 COLUM. HUM. RTS. L. REV. 158, 201 n.100 (2014) (describing the treatment of customary international law in state courts during the 1800s). 337. See generally Sosa v. Alvarez Machain, 542 U.S. 692 (2004) (considering an ATS claim for arbitrary detention); Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (finding that the presumption against extraterritoriality applies to the ATS). 338. See Landau, supra note 335, at 56; Skinner, supra note 336, at 201. 2017] The Right to an Interpreter
safeguards provided by the U.S. Constitution, recent history has shown that foreign nationals are particularly susceptible to fair trial violations when facing criminal proceedings in the United States and particular violations of their right to consular notification. 339 Accordingly, the I.C.J. has found that the United States has deprived foreign nationals of their rights under the VCCR in several cases. 40 However, U.S. defendants alleging VCCR violations and attempting to have their I.C.J. judgments enforced in the United States have 341 been largely unsuccessful in federal courts. Some state courts, however, have been more favorable to hearing international law arguments, including allegations of VCCR violations. Looking to the I.C.J.'s Avena judgment, in 2005 the Oklahoma Court of Criminal Appeals subsequently remanded the case of Osbaldo Torres to trial court to consider whether Torres, a Mexican national, was prejudiced by Oklahoma's failure to inform him of his VCCR rights.342 On remand, the trial court found that Torres was prejudiced due to the VCCR violation, based on a three-prong test that the trial court, and subsequently the Oklahoma Court of Criminal Appeals, adopted.343 In considering the trial court's finding of a violation on appeal, the Oklahoma Court of Criminal Appeals noted that the test used by the trial court was consistent
339. Under Article 36 of the VCCR, a foreign national arrested, committed to prison, put in custody pending trial, or detained in any manner, has a right to notify their consular post of their detention without delay, and the arresting authorities should inform the detained individual of this right. See Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Moreover, under the Optional Protocol Concerning the Compulsory Settlement of Disputes, disputes arising from interpretations of the VCCR are the compulsory jurisdiction of the I.C.J. See Optional Protocol to the Vienna Convention on Consular Relations Concerning Compulsory Settlement of Disputes, art. I, Apr. 24, 1963, 21 U.T.S. 325, 596 U.N.T.S. 487 [hereinafter Optional Protocol]. Any party to the dispute who is a party to the Protocol may bring the dispute before the I.C.J. in an application. See Optional Protocol, art. I. 340. See Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measure, 1998 I.C.J. Rep. 29 (April 9); LaGrand Case (Germ. v. U.S.), 2001 I.C.J Rep. 466, 478 (June 27); Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. Rep. 12, 50 (March 31). 341. See Breard v. Greene, 523 U.S. 371 (1998) (per curiam); Sanchez- Llamas v. Oregon, 548 U.S. 331, 340 (2006); Medellin v. Texas, 552 U.S. 491 (2006). 342. Torres v. State, 120 P.3d 1184, 1186 (Okla. Crim. App. 2005). 343. Id. The test considers: (1) whether the defendant did not know he had a right to contact his consulate for assistance; (2) whether he would have availed himself of the right had he known of it; and (3) whether it was likely that the consulate would have assisted the defendant. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
with the I.C.J.'s reasoning in Avena.3 44 However, the Oklahoma Court of Criminal Appeals ultimately concluded that Torres was not prejudiced by his Vienna Convention violation, and denied his application for post-conviction relief. 14' Nevertheless, the Torres decision provided some hope to similarly situated foreign nationals, as it held that, as a matter of state law, the Vienna Convention confers individually enforceable rights.4 6 Since Medellin v. Texas, foreign nationals who have allegedly suffered a violation of their consular notification rights under the Vienna Convention have been largely without relief due to the procedural default rule. 3 However, despite the Supreme Court's finding that the VCCR is a non-self-executing treaty, one state court has been willing to continue reviewing VCCR violations as directed 348 by the I.C.J. In 2012, the Nevada Supreme Court considered the denial of a post-conviction writ of habeas corpus from Carlos Gutierrez. 349 In 1994, Gutierrez had pleaded no contest to the first-degree murder of his stepdaughter and was sentenced to death.350 Gutierrez was one of the named Mexican nationals in Avena, and unlike the defendant in Medellin, the facts of his case are, prima facie, indicative of prejudice due the lack of timely consular access.351 In his criminal proceedings in Nevada, Gutierrez had been denied adequate interpretation services, which may have been rectified had the Mexican consulate been notified of his detention.3 52 One of the interpreters used during his proceedings not only mistranslated key words, but also relied on the incorrect variant of Spanish, utilizing Cuban-Spanish rather than
344. Id. at 1187. 345. Id. at 1190. 346. Id. at 1186; see also Guevara v. Miller, No. CIV-10-027-W, 2011 WL 7143477, at *30 (W.D. Okla. Dec. 30, 2011). 347. See, e.g., Leal Garcia v. Quarterman, 573 F.3d 214, 218 (5th Cir. 2009) (finding that the basis for the petitioner's habeas claim had been foreclosed by Medellin and state procedural default rules). 348. John R. Crook (ed.), Contemporary Practice of the United States Relating to InternationalLaw: State Diplomatic and ConsularRelations, 107 AM. J. INT'L L. 216, 216 (2013). 349. Gutierrez v. State, No. 53506, 2012 WL 4355518, at *1 (Nev. Sept. 19, 2012). 350. Id. 351. Id. at *2-4; Garcia v. Texas, 131 S. Ct. 2866, 2868 (2011) (per curiam); Medellin v. Texas, 554 U.S. 759, 760 (2008) (per curiam) (denying Medellin's stay of execution after the Court's decision in Medellin I); see Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 17 (March 31). 352. Gutierrez,2012 WL 4355518, at *5-13. 2017] The Right to an Interpreter
Mexican-Spanish. 353 Furthermore, the interpretation services provided to Gutierrez were inadequate as a matter of law. The interpreter who interpreted for the judges and three of the State's witnesses was later convicted of perjury for falsifying his credentials at Gutierrez's death penalty hearing.3 54 Demonstrating the degree of harm the interpreter may have inflicted on Gutierrez, the State described the interpreter as "a sociopath" who "does not know how to recognize or offer truthful assertions '355 but who, nonetheless, played an "integral"356 role in Gutierrez's death penalty hearing. The Nevada Supreme Court noted that while state procedural default rules do not need to yield to I.C.J. judgments such as Avena without Congressional legislation executing the VCCR, "they may yield, if actual prejudice can be shown."357 Gutierrez, the court found, "needed help navigating the American criminal system" 358 and while the U.S. Constitution does not require certified interpreters, "it does require reliable evidence, ' which had likely been undermined by the misconduct of the interpreter. Consequently, the Nevada Supreme Court reversed and remanded the decision of the district court denying a writ of habeas corpus for an evidentiary hearing to determine whether Gutierrez suffered prejudice from his lack of consular access.360 Since the case was remanded for an evidentiary hearing in 2012, no movement has been made on the Gutierrez case. Therefore, it is possible that upon rehearing, the district court may find that Gutierrez was prejudiced by his lack of consular access, giving life back to Avena and individual enforcement of consular notification rights in U.S. courts. Yet the history of the VCCR in the United States demonstrates that foreign nationals relying solely on VCCR claims are unlikely to find any ultimate relief.
353. Id.at *11. 354. State v. Gonzalez, Case No. CR96-0562 (Nev. Second Jud. Dist. Ct.) judgment in the perjury trial of the interpreter in Gutierrez v. State); Gutierrez, 2012 WL 4355518, at *2. 355. Gutierrez,2012 WL 4355518, at *11 (quoting the State's arguments in State v. Gonzalez). 356. Id. at *11 (quoting the State's arguments in State v. Gonzalez). 357. Id. at *4. 358. Id. at *6. 359. Id. 360. Id. at *12-13. COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3
Nevertheless, when VCCR rights are violated, other rights are also often implicated and even infringed upon. 61 In the case of Gutierrez, the facts are so peculiar that they likely give rise to not only a violation of the right to consular notification under the VCCR, but also a violation of the right to an interpreter under customary international law. Indeed, Gutierrez's arguments for a violation of the right to an interpreter may be stronger than under the VCCR claim. The facts available indicate that the interpretation provided to the court was insufficient to ensure procedural fairness. Even though the interpreter was interpreting for the judges rather than for Gutierrez, Gutierrez's fair trial rights were still likely infringed upon. The right to an interpreter is not merely a right essential to the accused's ability to participate in the proceedings, but also an essential element of the court and the trier of fact's ability to evaluate the credibility 3 62 and reliability of witnesses and accused persons. Moreover, international courts such as the ECHR have been sensitive to interpretation violations during particularly critical moments of criminal proceedings,36 3 and thus the lack of sufficient interpretation during Gutierrez' death penalty hearing may be considered an especially egregious violation under international law. Thus, the facts indicate that the interpretation services provided to Gutierrez would likely be considered a violation of the right to an interpreter in an international tribunal. However, it is unclear whether consular notification would have rectified this issue, as the
361. See generallySanja Djajic, The Effect of InternationalCourt ofJustice Decisions on Municipal Courts in the United States: Breard v. Greene, 23 HASTINGS INT'L & CoMp. L. REV. 27 (1999) (describing other international norms which may have been violated in Breard). 362. See Prosecutor v. Rutaganda, Case No. ICTR 96-3-A, Judgement, 21 (May 26, 2003); Prosecutor v. Bagilishema, Case No. ICTR 95-1A, Judgement, 12 (July 3, 2002) (citing Prosecutor v. Kupreskid, Case No. IT-95-16-A, Appeals Judgement, 32 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 23, 2001)); see also Prosecutor v. Kunarac, Case No. IT-96-23 & 23/1, Judgement, 40 (Int'l Crim. Trib. for the Former Yugoslavia June 12, 2002). 363. See Human Rights Council, Opinion of the Working Group on Arbitrary Detention, Opinion No. 34/2011, A/HRC/WGAD/2011/34, 5 (Feb. 28, 2011) (noting that the accused persons who were denied an interpreter were facing the possibility of execution); Saman v. Turkey, App. No. 35292/05, 31, 36 (Eur. Ct. H.R. Apr. 5, 2011) (noting that the accused was facing complex charge for grave criminal offenses and thus that the interpretation provided was insufficient). 2017] The Right to an Interpreter
problematic interpreter was a court interpreter and not an 3 64 interpreter for Gutierrez. Consequently, for a defendant like Gutierrez, where the facts indicate that the defendant suffered prejudice (thereby overcoming the procedural default rule365) and the state court appears favorable to international law claims, a violation of the customary international law right to an interpreter may be easier to establish than a VCCR claim, particularly as the right is also protected, albeit less 366 comprehensively, by the U.S. Constitution and Nevada state law. Alternatively, a defendant could claim a violation of the right to an interpreter under customary international law in addition to a violation of the VCCR, bolstering both international law claims.
CONCLUSION
The right to an interpreter, while not previously identified as such, is well established by both state practice and opimojuris.As a right essential to the broader international law guarantees of a fair trial, the right to an interpreter is longstanding in international law and, particularly, international criminal law. However, unlike the right to a fair trial, the right to an interpreter is both more specified and more readily applicable, consequently giving it a better chance of recognition in U.S. courts. As a result, individuals who have faced substantial difficulties in claiming a treaty-based international law right in U.S. state or federal courts, may have a better chance of success with a customary international law claim. As a customary norm, the right to an interpreter is not limited by the requirements of dualist systems such as the United States for execution of treaties, and consequently, has potentially more value to U.S. claimants than treaty rights only protected under international instruments such as the ICCPR. Moreover, the customary international law right to an interpreter is more comprehensive and offers far stronger fair trial
364. Gutierrez v. State, No. 53506, 2012 WL 4355518, at *11 (Nev. Sept. 19, 2012). 365. According to the U.S. submissions in LaGrand,the procedural default rule "is a federal rule that, before a state criminal defendant can obtain relief in federal court, the claim must be presented to a state court. If a defendant attempts to raise a new issue in a federal habeas corpus proceeding, the defendant can only do so by showing cause and prejudice." LaGrand Case (Germ. v. U.S.), 2001 I.C.J 466, 477 (June 27). 366. See U.S. CONST. amends. V, VI, XIV; NEV. REV. STAT. § 50.0515 (LexisNexis 2012). 302 COLUMBIA HUMAN RIGHTS LA W REVIEW [48.3
protections than U.S. statutory provisions. Therefore, the right to an interpreter is not only a right guaranteed by the intangible body of customary international law, but also a practical right that may be successfully exercised in the United States by individuals who have suffered a substantial violation of this ight.