International Miranda? Article 36 of the Vienna Convention on consular relations
By Rebecca E. Woodman I I. Introduction n State v. Ameen,l a panel of the Kansas Court of Appeals considered a claim by a foreign national, convicted of crimes in Kansas, that his convictions should be reversed because the State failed to advise him of his rights under Article 36 of the Vienna Convention on Consular Relations. Noting that Ameen had failed to raise the issue in the trial court, and finding that his claims of prejudice were "speculative," the Court of Appeals denied Ameen's claim. However, the Court's opinion contains the following admonition:
We do, however, urge state prosecutors to become familiar with the treaty and specifically Article 36. The Vienna Convention on Consular Relations was adopted by 92 nations, including the United States. See Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l Law 565, 568 (997). State prosecutors should become aware of the treaty's provisions and adhere to them.2
More recently, in State v. Rosas,3 Article 36 of the Vienna Convention was again considered, this time by a different panel of the Court of Appeals. In Rosas, while the court disapproved of any language in the Ameen court's decision which implied that suppression of evidence could be an appropriate remedy for violation of the Vienna Convention upon a showing of prejudice, the Rosas court did agree with the Ameen court that prosecutors should be aware of the Vienna Convention and inform foreign national defendants of their rights under Article 36 of the treaty. 4 What is Article 36 of the Vienna Convention on Consular Relations, and why is it important for state prosecutors to become aware of this treaty and adhere to its provisions? This article seeks to answer those questions, and to explain why familiarity with Article 36 of the Vienna Convention is important, not only for state prosecutors, but for all law enforcement officials, lawyers and judges in this state. In particular, defense counsel representing a foreign national must be aware of their client's rights under Article 36, and assert any claim involving a violation of those rights in a timely manner. As recent litigation across the country and around the world illustrates, failure of state officials in the United States to comply with Article 36 of the Vienna Convention has serious consequences. In some cases, a violation of the treaty may result in a reversal of a foreign national's criminal conviction. Though most courts in the United States have so far refused to reverse a conviction for a violation of Article 36 absent a showing of prejudice, powerful arguments have been made, and some courts have held, that a failure to inform a foreign national of his or her rights under the treaty is the equivalent of a Miranda violation and requires the suppression of incriminating statements.
2. 27 Kan,App.2d at 184. ~ 3. _._ Kan.App.2d _,17 P.3d 379{2000}. 1. zr Kart;APP.2d lSI, lP.3d 330 (2000). 4. 17 P.3d at 386.
JUNE/JULY 2001/ TIlE JOURNAL - 41 In all cases, a failure to comply with the treaty threatens (a) consular officers shall be free to communicate the foreign relations of the United States. The United States with nationals of the sending State and to have has been roundly criticized in recent years for failing to access to them. Nationals of the sending State shall ensure enforcement of the rights of have the same freedom with respect to communi As recemt foreign nationals under the Vienna cation with and access to consular officers of the Convention while at the same time sending State; litigation expecting, and demanding, full protec across the tion under the treaty for American citi zens abroad. Specifically, the United (b) if he so requests, the competent authorities of country and States has been condemned for allow the receiving State shall, without delay, inform the aroung the ing the death penalty to be carried out consular post of the sending State if, within its con on foreign nationals whose rights sular district, a national of that State is arrested or world under the Vienna Convention were committed to prison or to custody pending trial or illustrates, clearly violated. Executions of foreign is detained in any other manner. Any communica nationals have been allowed to go for tion addressed to the consular post by the person failur of state ward in this country despite orders arrested, in prison, custody or detention shall also officials in the issued by the International Court of be forwarded by the said authorities without delay. Justice to stay the executions pending The said authorities shall inform the person con United States final decision in lawsuits filed against cerned without delay of his rights under this sub to comply the United States by their respective paragraph; with Article 36 governments. Failure to enforce Article 36 of the Vienna Convention and to of the Vienna provide an effective remedy for its vio (c) consular officers shall have the right to visit a Convention lation not only violates international national of the sending State who is in prison, cus law, it weakens the status and author tody or detention, to converse and correspond has serious ity of the United States in the interna with him and to arrange for his legal representa consequences tional community, and places tion. They shall also have the right to visit any Americans abroad at serious risk. national of the sending State who is in prison, cus tody or detention in their district in pursuance II. Article 36 of the Vienna Convention on Consular of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national Relations who is in prison, custody or detention if he expressly opposes such action. The Vienna Convention on Consular Relations (VCCR) is a binding multilateral treaty adopted in April, 1963 under the signature of 92 nations, including the United States.s 2. The rights referred to in paragraph 1 of this The United States Senate ratified the VCCR in 1969.6 To Article shall be exercised in conformity with the date, more than 160 nations are parties to the VCCRJ laws and regulations of the receiving State, subject Under the Supremacy Clause of the Constitution of the to the proviso, however, that the said laws and reg United States, the VCCR is the law of the land, and is bind ulations must enable full effect to be given to the ing on the states.s The VCCR is deemed a self-executing purposes for which the rights accorded under this treaty,9 which means that the treaty is the equivalent of an Article are intended. act of Congress, and operates without the aid of any enabling legislation. Self-executing treaties give rise to judi Article 36 of the VCCR represents a clear recognition of cially enforceable rights. 10 the unique disadvantages faced by foreign nationals Article 36 of the VCCR, pertaining to arrest or detention arrested or detained in another country, and provides "a of foreign nationals, states as follows: cultural bridge for detained nationals who must otherwise navigate through an unfamiliar and often hostile legal sys 1. With a view to facilitating the exercise of con tem."ll The provisions of the VCCR are generally consid sular functions relating to nationals of the sending ered to be a codification of customary international law, State: under which nations assumed an obligation to accord for-
5. 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (April 24, 1963). Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l. L. 6. 115 Congo Rec. 530997 (daily ed. Oct. 22, 1969). 565, 613 n. 147 (1997). See also, United States V. Torres-Del Muro, 58 7. Kelly Trainer, The Vienna Convention on Consular Relations in F.Supp.2d 931, 932 (C.D. Ill. 1999)(noting that the VCeR is a se!f the United States Courts, 13 Transnat'! Law. 227, 232 (2000). executing treaty); United States v. Chaparro-Alcantara, 37 F.Supp.2d 8. U.S. Const. art. VI, cI.2("all Treaties made, or which shall be 1122, 1124 n.1 (C.D. Ill. 1999)(same), affd 226 F.3d 616 Oth Cir. 2000). made, under the Authority of the United States shall be the supreme 10. Foster V. Nielson, 27 U.S. 253, 314 (1829); The Head Money Cases, Law of the Land; and the Judges in every State shall be bound thereby, 112 U.S. 580 (1884). and Any Tthing in the Constitution or Laws of any State to the Contrary 11. United States V. Chaparro-Alcantara, 226 F.3d 616,622 Oth Cir. notwithstanding") . 2000)(quoting William J. Aceves, Murphy V. Netherland, 92 Am. J. Int'! 9. See Mark J. Kadish, Article 36 of the Vienna Convention on L. 87, 89-90 (1998)).
42 - THE JOURNAL /JUNE/JULY 2001 eign nationals a certain minimum standard of treatment in VCCR creates an individually enforceable right, and referred keeping with prevailing notions of justice.12 in its opinion to the State Department's correspondence with the First CircuitY The en bane III. Litigation of Article 36 of the VCCR in the United States court in Lombera-Camorlinga reversed the decision of a panel of the Ninth Despite the Despite the fact that the VCCR is a binding, self-executing Circuit which had held that Article 36 reluctance of treaty, two fundamental issues have arisen in federal and creates an individual right that is state courts in the United States when considering claims enforceable in courts of the United courts to under Article 36. The first issue is whether Article 36 con States. 18 decide the fers an individual right which is enforceable in courts of the Many courts in the United States United States. Though most courts decline to reach the have held that Article 36 of the VCCR issue, there issue, it is generally assumed among them that Article 36 confers individual rights, and that a reaUy should does confer individual rights to consular notification and foreign national therefore has standing assistance. The second, more troubling issue for the courts, to assert those rights in a court of be no dispute is whether there is a judicially enforceable remedy for a law.19 By contrast, few courts have as to whether violation of those rights. Each of these issues will be dis suggested that Article 36 confers no cussed in turn. As will be seen, it is the courts' resolution of individual rights at all. 20 The decision Article 36 of the second issue that has posed the most serious problems of the Kansas Court of Appeals in the veCR for the United States in the international community. State v. Rosas appears to adopt the lat confers ter view, although without clearly say A. Individual Rights to Consular Notification and ing SO.21 Most state and federal courts, individual however, as in Li and Lombera rights. Access under Article 36 Camorlinga, have generally followed the lead of the United States Supreme The issue of whether Article 36 of the VCCR confers indi Court in bypassing the issue of indi- vidual rights is unsettled in state and federal courts. In Breard vidual rights, either by avoiding the issue altogether or by v. Greene,13 which involved a Paraguayan national's claim assuming, without deciding, that Article 36 of the VCCR that Article 36 was violated by Virginia authorities, the does confer individual rights and then moving on to the Supreme Court of the United States noted that Article 36 issue of remedy.22 "arguably confers on an individual the right to consular assis Despite the reluctance of courts to decide the issue, there tance following arrest". The Court did not decide the issue, really should be no dispute as to whether Article 36 of the however, and instead held that Breard's claim under Article VCCR confers individual rights. The language of Article 36 was procedurally defaulted because it was not asserted in 36(1)(b) of the VCCR seems clear enough: "The said state court.14 In addition, the Court recently denied certiorari authorities shall inform the person concerned without delay in two federal circuit cases which chose to sidestep the issue of his rights under this subparagraph." The dissent in of whether Article 36 confers individual rights. Lombera-Camorlinga relied on this "mandatory and In United States v. Li, the First Circuit concluded that "it is unequivocal" language of Article 36(1)(b) to argue that the far from clear that the Vienna Convention confers any VCCR establishes individual, enforceable rights.23 rights upon criminal defendants."15 This conclusion was Under international rules of treaty interpretation,24 the based in part upon answers provided by the State text of the treaty must be read as a whole, in light of the Department to specific questions posed by the Li court. object and purpose of the treaty, and in consideration of The State Department asserted in Li that the VCCR was not relevant rules of international law and subsequent agree a treaty establishing an individual right. 16 Similarly, in ments regarding interpretation or application of the treaty United States v. Lombera-Camorlinga, the Ninth Circuit, on provisions. The plain language of the treaty controls, and if en bane review, refused to decide whether Article 36 of the
12. Trainer, supra note 7, at 233 n. 32. (B.D. Va. 1996)(suggesting that VeCR does not confer private 13. 523 V.S. 371, 140 L.Ed.2d 529, 118 S.Ct. 1352 (1998). enforceable rights), ajJ'd 134 F.3d 622 (4th Cir. 1998). 14. 523 U.S. at 376. 21. see 17 P.3d at 384-385(though acknowledging that the defendant, 15. 206 F.3d 56, 62 (1st Cir.), cerr. denied 121 S.Ct. 378, 379, 148 a Mexican national, was not informed of ,his "right" under Article L.Ed.2d 292 (2000). 36(1)(b), the Court neverthele~s stated that the purpose of the VeCR is 16. Id. at 63. not to benefit individuals). 17. 206 F.3d 882, 885, 890 (9th Cir.), cm. dented 121 S.Ct. 481, 148 22. See United states v. Cbantbadara, 230 F.3d 1237, 1255 (lOth Cir. L.Ed.2d 455 (2000). 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir. 18. see United States v. Lombera-Gamorltnga, 170 F.3d 1241, 1242- 2000); United States v. Carillo, 70 F.Supp.2d 854, 859 (N.D. Ill. 1999); 1243 (9th Cir. 1999)(withdrawn). United States v. Rodrigues, 68 F.Supp.2d 178, 182-183 (E.D.N.Y. 1999); 19. see United States v. Esparza-Ponce, 193 F.3d 1133, 1138 (9th Cir. United States v. Alvarado-Torres, 45 F.Supp.2d 986 (S.D. Cal. 1999); 1999); United States V. Ore-lrawa, 78 F.Supp.2d 610, 612 (B.D. Mich. State v. Miranda, 622 N.W.2d 353, 355-356 (Minn.App. 2001); Zavala v. 1999); United States v. Torres-Del MUro, 58 F.Supp.2d 931, 933 (C.D. Ill, , State, 739 N.E.2d 135, 140 (Ind. 2000); State v. Cevallos-Bermeo, 754 1999); United States v. Hongla-Yamcbe, 55 F.Supp.2d 74, 77 (D. Mass. , A.2d 1224, 1227 {N.}. Super. 2000). 1999); United States v. $69,530.00 in United States Currency, 22 23. 206 F.3d at 889-890. F.Supp.id 593 (W.O. Tx. 1998); State v. Reyes, 740 A.2d 7, 9-10 (Del. 24. see Vienna Convention on the Law of Treaties, arts. 31, 32, 1155 1999). V.N.T.S. 330 (May 23, 1969). 20. See, e.g., Republic o/Paraguay v. Allen, 949 F.Supp.2d 1269, 1274
JUNE/JULY 2001/ THE JOURNAL - 43 the textual language is ambiguous, resort must be made to amendment would "accord privileged status to the travaux preparatoires (legislative history) to determine aliens." In response to the criticism of the amend the treaty's meaning.25 ment, the United Kingdom delegate responded "it To the extent that the plain language of Article 36(1)(b) [is] precisely with aliens and their rights that article leaves any room for doubt as to its meaning, the travaux 36 [is] concerned." Despite the concerns raised, the preparatoires to the VCCR clearly United Kingdom amendment was eventually Indeed official show that the framers of the treaty, adopted by the conference. including the United States, intended documents of Article 36 to confer individual rights to The controversy over Article 36 continued into the United consular notification and access. As the plenary meetings. Near the close of the described by one commentator: Conference, the United Kingdom submitted an States amendment proposal to encourage a compromise Department of Committee and plenary meeting on paragraph (1)Cb); specifically, an obligation on debates of the Vienna Conference the receiving State to inform the detained national State show that there was significant of his rights under the paragraph. This amendment repeatedly debate over Article 36. In fact, was eventually adopted two days before the numerous amendments were sub Conference closed. As ultimately adopted, Article refer to the mitted, and the original draft was 36 contains each of the necessary safeguards pro rights completely eliminated from the posed to protect individual freedoms, including a conferred Convention when it failed to prohibition on notification unless the foreign receive the requisite support. In national requests it and a requirement that the for under Article committee meetings, several eign national be told of his right to request such 36 as nations' representatives expressed notification.26 concern over individual rights. individual One particular amendment, sub And, as noted by the dissent in United States v. Li, the rights. mitted by Venezuela, received a United States delegate to the Vienna Convention voted in great deal of attention. This pro- favor of the amendment submitted by the United posed amendment to Article Kingdom.27 Further, in an official letter from the United 36(1)(a) completely eliminated reference to the States Secretary of State to the President of the United national's freedom to communicate with his consul. States dated April 18, 1969, as part of documents in support Some nations supported the amendment because of Senate ratification, the Secretary stated that Article they believed that the Treaty was an inappropriate 36(1)(b) "requires that authorities of the receiving State place to establish an individual national's rights. inform the person detained of his right to have the fact of However, the amendment received strong opposi his detention reported to the consular post concerned and tion. It was withdrawn, and eventually replaced his right to communicate with that consular post. "28 with language which included the freedom of the In Li, the dissenting Chief Judge of the First Circuit criti individual to communicate with his consul. cized the majority, not only for disregarding the plain lan guage of Article 36 which establishes that the protections Committee debate over Article 36(1)(b) and (2) under Article 36(I)(b) belong to the individual national, but also focused on the individual. Many countries also for completely ignoring the doctrine of self-execution, insisted upon automatic notification to consuls in which renders Article 36 enforceable in courts at the behest cases of arrest or detention of nationals. A primary of the affected individuaI.29 The dissent pointed out govern reason for such notification was to insure due ment counsel's concession at oral argument that the VCCR process safeguards for the protection of nationals; requires that the individual be notified immediately, and however, concern for the free will of the affected that the treaty was violated in the case. Yet, the dissent national prevailed. The Committee, and eventually stated, "as is apparent from the majority opinion, the con the Convention, adopted language that prohibits cessions made at oral argument are for naught. "30 The dis notification of the consul unless it is requested by sent also took issue with the majority's reliance on posi the foreign national. tions taken by the State Department in adversariallitigation, arguing that such positions were "unpersuasive, particularly Debate over paragraph two of Article 36 focused as those positions are both self-serving and directly con on an amendment submitted by the United trary to the Department's nonlitigation position."31 Kingdom; some nations were concerned that the Indeed, official documents of the United States
25. See Kadish, supra note 9, at 590-591, 594., 26. Kadish, supra ~ote 9, at 596-59SCfootnotes omitted}. S~e also tit, at 597 n. 200(notingthat the .United States submitted an alill~dq!.~t • Article 36(1)(b} proposing that notification to a consuL 0( a:n~ . arrest or detemion be made Itt the .request of the foreign ~tiIO+ that, according to the United; States delegate! the pU1:p(lse,; amendment was to protect the rights of the national co!lce~);. ... . 27. 206 F.3d at 74(TorrueUa, CJ., dissenting)(dting Report ot tHe
44 - THE JOURNAL /JUNE/JULY 2001 Department of State repeatedly refer to the rights conferred Defendants raising a VCCR claim have most often argued under Article 36 as individual rights. The State Department's that a failure to advise them of their rights under Article 36 Foreign Affairs Manual, in reference to the rights of requires the suppression of incriminating statements or a American detainees abroad, states that Article 36 of the new trial, equating a VCCR violation VCCR "provides that the host government must notify the with a Miranda 40 violation. But even One thing arrestee without delay of the arrestee's right to communi where the merits of an Article 36 claim cate with the American consul. "32 The "Consular have been reached, most courts in the seems clear Notification and Access" handbook issued by the State United States have required that the from the Department in January, 1998, instructs federal, state, and defendant show actual prejudice in local law enforcement officials on the procedure and proto order to obtain relief. These courts decisions of col for informing arrested or detained foreign nationals of have generally rejected suppression as state and their rights under Article 36 of the VCCR. 33 Regulations of too extraordinary a remedy for a VCCR the United States Department of Justice also codify the violation - on the ground that the federal courts rights to consular notification and access embodied in rights under Article 36 are less weighty on the issue of Article 36,34 as do those of the United States Immigration than fundamental constitutional rights; and Naturalization Service.35 on the ground that, as long as a for remedy: Ifa eign national is advised of the claim under 2. Remedy for Violation of Rights under Article 36 Miranda rights, no prejudice from a VCCR violation can be shown; and Article 36 of Assuming that Article 36(1)(b) of the VCCR does confer even on the ground that where preju the VCCRis individual rights, there still remains the issue of an appro dice is shown, suppression is never priate remedy for a violation of those rights. Most courts in theless an inappropriate remedy. not raised the United States have refused to supply a remedy for a Some courts have held that the early, it may VCCR violation, which probably explains why courts are exclusionary rule cannot be invoked reluctant to state definitively that Article 36 confers individ for a violation of Article 36 of the be waived. ual rights in the first place. If a foreign national has individ VCCR, reasoning that the treaty does ual rights to consular notification and access upon arrest or not create any fundamental right to be detention which are enforceable in court, then there must protected by the remedy of suppression. For instance, in be a remedy to vindicate a violation of those rights. United States v. Chaparro-Alcantara,41 the federal district One thing seems clear from the decisions of state and court of Illinois held that the treaty violation must rise to federal courts on the issue of remedy: If a claim under the level of a constitutional violation in order to invoke the Article 36 of the VCCR is not raised early, it may be waived. exclUSionary rule, stating: "It is clear that Article 36 does This was the result reached by the Kansas Court of Appeals not create a 'fundamental' right, such as the Sixth in State v. Ameen, which held that Ameen's claimed preju Amendment right to counsel, or the Fifth Amendment right dice from an Article 36 violation was "speculative" because against self-incrimination which originates from the concept he failed to raise the issue in the trial court and therefore of due process ...,,42 Applying the same logic, the New "no evidentiary basis for the claim was properly established York federal district court in United States v. Rodrigues43 as part of the record on appeal."36 In Ademodi v. State,37 on stated that consular notification "is not a fundamental right an application for post-conviction relief, the Minnesota derived from the Constitution," and therefore "[tlhe princi Supreme Court held that the petitioner waived his VCCR pal justification for excluding relevant evidence - to reduce claim because he failed to raise the issue on direct governmental infringement on fundamental constitutional appeal,38 The United States Supreme Court in Ereard v. rights - is not implicated when Article 36 of the [VCCRl is Greene found that Breard had procedurally defaulted his violated. "44 VCCR claim under federal habeas corpus law because he Although, under the Supremacy Clause of the did not assert it in state court.39 Breard was subsequently Constitution, treaties are placed "on the same footing" with executed in the state of Virginia. These cases demonstrate federal statutes,45 even the court in Rodrigues acknowl that it is incumbent on defense counsel representing a for edged an exception to the general rule that the exclusion eign national to determine at the outset whether his or her ary rule is available only to remedy violations of fundamen client has been properly notified of their rights under tal constitutional rights. The court noted that the United Article 36 of the VCCR, and to raise an Article 36 violation States Supreme Court has applied the exclusionary rule for at the first opportunity. violations of federal statutes, specifically in the McNabb-
32.7 Foreign..waits Manu$! §411.1 (1984). during cUlItodial Interrogation depends n iwhetl;ler sl.Jspect provided 33.A~l3;ble at .. w1th. warning sufficient to prQtect the su~~s, Fifth; Amendment right
46. 68 F.Supp.2d at 185(citing Mallory v. United States, 354 U.S. 449, 1 F.Supp.2d 986, 990-991 (S.D. Cal. 1999); United States v. Tapia-Mendoza, L.Ed.2d 1479, 77 S.Ct. 1356 (1957); McNabb v. United States, 318 U.S. 41 F.Supp.2d 1250, 1254-1255 (D. Utah 1999); Untted States v. Cbaparro 332,87 L.Ed. 819, 63 S.Ct. 608 (1943». Alcantara, 37 F.Supp.2d 1122, 1126-1127 (C.D. Ill. 1999). Accord, United 47. 65 F.Supp.2d 1002 (D. Minn. 1999). States v. Raven, 103 F.Supp.2d 38 (D. Mass. 2000); United States v. Ore 48. [d. [rawa, 78 F.Supp.2d 610, 613 (E.D. Mich. 1999); State v. Miranda, 622 49. 16 S.W.3d 1 (Tx.Crim.App. 2000). N.W.2d 353,356-357 (Minn.App. 2001); State v. Rosas, 17 P.3d 379, 386 50. [d. at 13(citing Vernon's Ann. Texas C.C.P. art. 38.23(a». (Kan.App.2000). 51. [d. at 14. 57. 45 F.Supp.2d at 990. 52. [d. at 15, n. 12. 58. Rodrigues, supra, 68 F.Supp.2d at 185-186; Alvarado-Torres, supra, 53. [d. at 23-30(Holland, J., concurring, joined by Meyers, J., Price, J., 45 F.Supp.2d at 994. and Johnson, J.). 59. Kadish, supra note 9, at 603-607. See Miranda, 384 U.S. 436. See 54.998 S.W.2d 239,247 (Tx.Crim.App. 1999). also, Dickerson v. United States, 530 U.S. 428, 147 L.Ed.2d 405, 120 S.Ct. 55. See also, Trujillo v. State, 85 S.W.3d 824 (Tx.App. 2000)On another 2326 (2000)(holding that Miranda was a constitutional decision of the non-capital case, the court found that the defendant's two pre-trial Court which may not be overruled by an act of Congress). statements should have been suppressed as a result of an Article 36 60. Kadish, supra. violation) . 61. 740 A.2d 7 (Del. 1999). 56.68 F.Supp.2d at 184(citing United States v. Alvarado-Torres, 45
46 -TIlE JOURNAL /JUNE/JULY 2001 informed of his consular notification rights.,,62 Stating that 3. International Law Mandates a Remedy for a VeeR the VCCR is the law of the land under the Supremacy Violation Clause, and finding that Article 36 was violated and that the violation was asserted in a timely manner, the court in The recognized remedy for a treaty violation under inter Reyes held that "a violation of Article 36 is ground for sup national law is restoration of the status pressing incriminating statements made by a foreign quo ante, returning the parties to the Some courts, national while in police or government custody.,,63 In addi position they would have occupied tion, relying on the Miranda doctrine that a suspect may had the violation not taken place.72 in refUSing to be interrogated only if the suspect makes a voluntary, This principle of annulment of the invoke the knowing and intelligent waiver of rights, the court held that international wrong has been repeat the burden is on the State to prove by a preponderance of edly invoked by the International exclusionary the evidence that the suspect waived the rights under Court of Justice.73 It has been force ruleforan Article 36.64 The court also noted the language in Article fully argued that, in the context of a 36 36(2) of the VCCR, which provides that the rights referred criminal case, a return to the status Article to in paragraph 1 of Article 36 "shall be exercised in con quo ante for a VCeR violation requires violation, formity with the laws and regulations of the receiving State, suppression of evidence obtained in have relied on subject to the proviso, however, that the said laws and regu violation of the treaty, or a new trial,74 lations must enable full effect to be given to the purposes for Under Article 36(2) of the VCCR, the a belief that which the rights accorded under this Arlicle are intended.,,65 laws and regulations of the receiving no other Some courts, in refuSing to invoke the exclusionary rule State must enable full effect to be for an Article 36 violation, have relied on a belief that no given to the purposes of the rights nation has other nation has ordered suppression as a remedy.66 accorded under Article 36(1), and ordered However, at least two courts in the United Kingdom have since the purpose behind Article ordered that incriminating statements be suppressed as a 36(1)(b), like that of Miranda, is to suppression result of an Article 36 violation. In the first case, R. v. Bassil make a suspect aware of his rights as a remedy. and Mouffareg,67 the court held that statements taken from before he unknowingly waives them, two Lebanese nationals after arresting authorities failed to it is argued that a violation of Article inform them of their rights to consular notification and 36 requires the same presumption of assistance must be excluded. No showing of actual preju prejudice as a Miranda violation or a violation of the right dice was required. In reaching its decision, the court con to counsel,75 sidered as factors the defendants' lack of knowledge of the British criminal justice system and their limited English lan IV. Failure to Abide by Article 36 of the VeeR Threatens guage skills, and also that the defendants were from a country where it is perceived that an arrested suspect has the Foreign Relations of the United States no rights or that it is dangerous to insist on any rights.68 Similarly, in the second case, R. v. Van Axel and Wezer,69 The reluctance of American courts to enforce a remedy the statements of two Dutch women were suppressed for a VeCR violation may be a reflection of a more general because, following their arrest, they were interviewed with reluctance on the part of courts in the United States to out being informed of their right to contact their consulate. incorporate international law into the criminal law con Even though the court found that the defendants could text.76 It may also reflect a judicial bias against international speak English reasonably well, the court stated that this law.77 might be deceptive since the two women were "young In any event, despite their withholding of an enforcement people who might wish to appear more sophisticated and mechanism for a VCCR violation, one thing that United worldly wise than they really were."70 The United Kingdom States courts do agree upon is that non-compliance with has also codified in its criminal code the rights to consular Article 36 of the VCeR constitutes a serious treaty violation notification and access under Article 36 of the VCCR.7 1 which poses a threat to the foreign relations of the United
62. Id. at 13. 72. Restatement (Third) of the Law of Foreign Relations §901 (987). 63. Id. at 14. See also, Flores v. johnson, 210 F.3d 456 (5th Cir. 73. See Texas Overseas Petroleum Co/California Asiatic Oil Co. v. 2000)(though VCCR claim was procedurally barred on federal habeas, Government of the Libyan Arab Republic, 17 LL.M. 1 (1978); Temple of the court recognized that if Article 36 confers an individual right, the Preah Vihear(Cambodia v. Thail.), 1962 I.C.]. 6, 37 (June 15); remedy would be application of the exclUSionary rule). Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 64. Id. I.e.]. 3 (Feb. 5)(separate opinion of Fitzmaurice, J.). 65. Id. at 9(emphasis added). 74. Kadish, supra note 9, at 610. 66. See United States v. Chaparro-Alcantara, supra, 226 F.3d at 622; 75. Id. at 609-611(citing Strickland v. Washington, 466 U.S. 668 United States v. Rodrigues, supra, 68 F.Supp.2d at 186; United States v. (1984), and Miranda, 384 U.S. 436). See also, Dickerson, supra, 530 U.S. Alvarado-Torres, supra, 45 F.Supp.2d at 994. 428. 67. (1990) 28 July, Acton Crown Court, HHJ Sich, Reported in Legal 76. See Eric G. Luna and Douglas]. Sylvester, Beyond Breard, 17 Action 23, December 1990. Berkeley]. Int'l L. 147 (1999)(noting the reluctance of U.S. courts to 68.Id. apply international law in the criminal context, while continuing to 69. (1991) 31 May, Snaresbrook Crown Court, HHJ Sich, Reported in expand the application of international law in the civil context). Legal Action 12, September 1991. 77. See Christopher E. van der Waerden, Death and Diplomacy: 70. Id. Paraguay v. United States and the Vienna Convention on Consular 71. Police and Criminal Evidence Act of 1984 (PACE), Code C, Relations, 45 Wayne L. Rev. 1631, 1646 (1999)(noting a growing judicial Section 7. attitude that U.S. domestic law is superior to international law).
JUNE/JULY 2001/ THE JOURNAL - 47 States. In United States v. Carillo,78 for example, while hold pleas from the State Department, the International Court of ing that the exclusionary rule could not be invoked for an Justice, and each of the foreign nations involved that the Article 36 violation, the court stated that "it is not the executions be stayed pending consideration of their Article court's intention to deprecate the seri 36 claims.8s The international outcry over these executions ousness of a treaty violation. . . . If was so great that, in 1999, for the first time in history, the Nowhere is American law enforcement officials United States was placed on Amnesty International's list of disregard, or perhaps more accurately, human rights violators.86 the threat to remain unaware of the notification Both Paraguay and Germany filed suit against the United foreign provision in Article 36, then officials of States in the International Court of Justice CIC]), seeking relations more foreign signatories are likely to flout redress of Article 36 claims involving their respective those obligations when they detain nationals facing imminent execution in the United States.87 visible than in American citizens. "79 Likewise, the With Angel Breard's execution date in Virginia fast the context of court in United States v. Alvarado approaching, Paraguay filed suit in the IC] on April 3, 1998, Torres,80 after holding that suppression arguing that any criminal liability imposed on Breard by the the death was not an appropriate remedy for an United States in violation of its international treaty obliga penalty in the Article 36 violation, stated that, "In so tions under the VCCR was void and that Paraguay was enti holding, the Court does not intend to tled to a return to the status quo ante, the situation that United States minimize the Government's violation existed before the failure to provide the required notifica and our non of the [Vienna] Convention, as such a tions to Breard occurred.88 The ICJ, finding that a valid dis violation gravely troubles the Court, as pute existed over which it had jurisdiction, issued a compliance it has other courts ..."81 Such senti Provisional Measures Order against the United States to with Article 36 ments were similarly expressed by the "take all measures at its disposal" to postpone Breard's exe court in United States v. Chaparro cution until a final judgment was issued.89 of the VCCR. Alcantara.82 But such lip service to the In the meantime, writs of certiorari by both Breard and importance of treaty commitments, in Paraguay were pending in the United States Supreme the face of refusals to provide an enforcement mechanism Court. In a brief to the Supreme Court, the United States for violations of those commitments, risks being perceived Department of Justice asked the Court to deny the certiorari as an empty gesture.83 Moreover, the failure to enforce petitions. Though conceding that a treaty violation had treaty commitments in our own country creates a danger occurred, the Department of Justice argued that the viola ous risk that other countries will do the same to American tion did not affect the outcome of Breard's trial, and that detainees abroad.84 the IC]'s order did not justify a stay of execution or a new Nowhere is the threat to foreign relations more visible trial. At the same time, however, the State Department sent than in the context of the death penalty in the United States a letter to the Virginia Governor, urging him to voluntarily and our non-compliance with Article 36 of the VCCR. In delay Breard's execution until the IC] ruled on the merits of recent years, foreign nationals have been executed in the the case. In the letter, Secretary of State Madeleine Albright United States despite clear violations of Article 36, and over stated that if Breard's execution was carried out in spite of the active protest of the international community. Angel the IC]'s order, other countries may "contend incorrectly Breard, a Paraguayan national, was executed in Virginia in that the U.S. does not take seriously its obligations under 1998. The brothers Karl and Walter LaGrand, nationals of the Convention", and that executing Breard as scheduled Germany, were executed by Arizona authorities in February may hinder the United States' "ability to ensure that and March of 1999. Joseph Stanley Faulder, a Canadian Americans are protected when living or traveling abroad."90 national, was executed in Texas in 1999. In each of these The Governor of Virginia as well as the United States cases, it was undisputed that state authorities failed to Supreme Court refused to stay the execution, and Breard advise the individuals of their rights under Article 36 of the was executed as scheduled.91 VCCR. Moreover, these individuals were executed despite Germany requested similar relief from the IC] when it
78.70F.Supp.2d 854 (N.D. Ill; 1999). 79.ld, at8~9-860.i .•. .' 8O.4SP,supp.2d 986, . •. 81:1d:at'99[;!l n, 1~...... ' .' 62. 220 FI.3d 616, i622. ••.. . .; ,.." 83. Sqe,'e.&, Adf!m'!di:'~"i~te;,i: 616 N.W.2d 11~. ~~ .' concucrring .speclaU II? ~n~ci;e ~he dissent for sta~s requ' ilt fs yq:a:d~in'i be considered qn ... then i. ~,anlil thereby f~ilif1g'lt an,5 . . the preae . by the case: "fI1o,s reach the ,. . . not do so because ""e most likel anOther.~ fo~ ~titlo~er~nJy jives him a falSe seme I:?f Mi;,see fpf/. ~ 16 ~.W,.34 1, 26(H9llanc:l. J.. co Unit$t Sta' .' ~~i a .roechBnismfor: ~ C~v~tiori, wh .. , I?ili~r ~o~s enf:9r(j~ t,Jie' treaty?"),. '; ;.:i, f .'.. !i.•...... '; .... '.' .ii. 85, see ch1i.dThpl1#:betryTi ~ederaltsm f!s. fOfSetgn~tJ: . U~tted Stales,'. ~an 4dm1n1ster Article 36 of ~ Wen,. CO" , "' 'i \' I
48 - THE JOURNAL /JUNE/JULY 2001 filed suit against the United States in 1999, in an attempt to that such unlawful acts are not repeated in the future, and stay the execution of Walter LaGrand after his brother Karl that in future cases of detention of or criminal proceedings was executed in Arizona in February of 1999. As was the against German nationals, the United States will ensure the case with Paraguay, the IC] issued a provisional order effective exercise of the rights under against the United States to stay the execution pending a Article 36 of the VCCR in law and in ••• The ruling on the merits of Germany's case against the United practice, and particularly in cases international States.92 Simultaneously, Germany filed motions in the involving the death penalty, the United States Supreme Court, invoking the Court's original United States must provide effective outcry over jurisdiction, requesting leave to file a bill of complaint and review of and remedies for criminal these for preliminary injunctions against the United States and the convictions impaired by a violation of Governor of Arizona to enforce the IC]'s provisional order. the rights under Article 36.96 A deci executions The Supreme Court subsequently denied these motions. sion from the IC] in the LaGrand case was so great Even though the Arizona Board of Executive Clemency will constitute a binding obligation on voted to recommend a reprieve for LaGrand so that the United States.97 that, in 1999, Germany would have time to file an orderly request with The Inter-American Court of for the first the IC], the Governor of Arizona rejected the recommenda Human Rights, exercising its advisory tion, and Walter LaGrand was executed on March 3, 1999.93 jurisdiction under the auspices of the time in history, In Paraguay's case, the United States issued a formal Organization of American States the United apology for the failure to notify Angel Breard under the (OAS) , issued a unanimous adviSOry VCCR, stating in part that, "Consular notification is no less opinion on October 1, 1999, upon a States was important to Paraguayan and other foreign nationals in the request of Mexico based on violations placed on United States than to U.S. nationals outside the United of Article 36 of the VCCR with respect Amnesty States .... We cannot have a double standard ..."9 4 The to Mexican nationals sentenced to IC] subsequently removed Paraguay's case from its docket death in the United States. The court International's at the request of Paraguay, and with the concurrence of the held that Article 36 of the VCCR con list of human United States, on November 10, 1998.95 fers specific legal and human rights Germany, however, has not dismissed its lawsuit against on individual foreign nationals, and rights the United States in the IC]. The IC] heard oral arguments that in order to protect a foreign violators. in the LaGrand case from November 13 to November 17, national's rights under the treaty, a 2000. Germany is requesting the international court to rule detainee must be informed of his or that: 1) the United States, by not informing Karl and Walter her rights under Article 36 at the time of arrest, before any LaGrand, following their arrest, of their rights under Article statements are made, whether or not the detainee may be (1)(b) of the VCCR, and by depriving Germany of the pos subject to the death penalty.98 sibility of rendering consular assistance, which ultimately In finding that Article 36 of the VCCR confers individual resulted in the LaGrands' executions, violated its interna rights, the Inter-American Court specifically noted that the tional legal obligations under the VCCR; 2) that the United United States, in bringing a case before the IC] involving States, by applying rules of domestic law, in particular the American hostages seized in Iran, "linked Article 36 of the doctrine of procedural default, to preclude the LaGrands Vienna Convention on Consular Relations with the rights of from raising their claims under the VCCR, and by executing the nationals of the sending state."99 Moreover, the court them, violated its international legal obligation under the held that inasmuch as Article 36 of the VCCR concerns the VCCR to give full effect to the purposes for which the rights protection of individual rights of foreign nationals and is accorded under Article 36 are intended; 3) that the United therefore part of the body of international human rights States, in failing to take all measures to ensure that Walter law, it specifically implicates the right to due process of law LaGrand was not executed pending a final decision of the recognized in Article 14 of the International Covenant on IC], violated its international obligation to comply with the Civil and Political Rights, which is binding on the United IC] order and to refrain from any action which might inter States. IOO The court further held that a failure to observe a fere with the subject matter of a pending judicial proceed detained foreign national's rights under Article 36 of the ing; and 4) that the United States must provide assurances VCCR is not only prejudicial to due process of law, but that
92. F.R.G. v. u.s., supra note 87, Order of Mar. 3, 1999, available at Thomas 1. Rev. 489, 504, 513 n. 109 (1999)(citingU.N. Charter art.
JUNE/JULY 2001/ THE JOURNAL - 49 imposition of the death penalty in such circumstances con rights under Article 36, then law enforcement officials may stitutes a further violation of the right not to be deprived of well be inclined to disregard them. And they do, as the life arbitrarily, contained in human rights treaties, specifi cases discussed in this article clearly illustrate. Moreover, cally the American Convention on Human Rights and the reciprocity is the foundation of international law.104 The International Covenant on Civil and Political Rights. 101 failure to comply with, and enforce, the notification rights While the advisory opinion of the Inter-American Court is under Article 36 of the VCCR in the United States sends a not binding, it is certainly representative of the expanding dangerous signal to other nations that the United States view of the international community that the United States does not intend to honor its treaty obligations. This not does indeed live by a "double standard," expecting other only jeopardizes the credibility and world leadership of the countries to guarantee the rights under Article 36 of the United States, it poses a serious threat to American nation VCCR to American citizens abroad while denying that same als abroad. guarantee to foreign nationals in the United States. Indeed, It is vitally important, therefore, that the State of Kansas it has been argued that the judicial attitude in the United enforce Article 36 of the VCCR with respect to foreign States toward Article 36 claims reflects a flagrant disregard nationals arrested or detained in this state. Law enforce for international law, which may have an adverse effect ment officials, prosecutors, defense counsel and judges all when judgments of the United States are considered in have a duty to ensure that the rights guaranteed under international tribunals.102 Article 36 are respected and upheld. Indeed, Kansas can altogether avoid the serious consequences of non-compli V. Conclusion ance with Article 36 of the VCCR, both domestic and inter national, if all Kansas law enforcement officials are made If, as one senior State Department official has said, the aware of and consistently carry out their notification rights under Article 36 of the VCCR constitute "a diplomatic responsibilities under Article 36 whenever a foreign Miranda warning,,,103 then they should be enforced as national is arrested or detained in this state. such. Indeed, if there is no sanction for a violation of the
101. ld., paras. 137, 141. Management, U.S. State Department), available in Westlaw, 1998 WL 102. van der Waerden, supra note 77, at 1645-1646. 3644532». 103 See Luna & Sylvester, supra note 76, at 148(citing All Things 104. Hilton v. Guyot, 159 U.S. 113, 228 (1895). See also, Breard v. Considered (N.P.R. Radio broadcast, Apr. 4, 1998)(statement of Kathy Prnett, 134 F.3d 615, 622 (1998)(Butzner,J., concurring). Peterson, Managing Director for Overseas Citizens Services and Crisis
ABOUT THE AUTHOR
Rebecca E. Woodman is a 1987 graduate of the Washburn University School of Law. She has served as an Assistant Appellate Defender at the Appellate Defender Office in Topeka, Kansas for ten years, and currently specializes in death penalty appeals.
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