Article 36 of the Vienna Convention on Consular Relations

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.

~ 1. zr Kart;APP.2d lSI, lP.3d 330 (2000).

2. 27 Kan,App.2d at 184. 3. _._ Kan.App.2d _,17 P.3d 379{2000}. 4. 17 P.3d at 386.

JUNE/JULY 2001/ TIlE JOURNAL - 41

In all cases, a failure to comply with the treaty threatens the foreign relations of the United States. The United States has been roundly criticized in recent years for failing to

As recemt litigation

across the country and aroung the

world illustrates,

failur of state officials in the

United States to comply

with Article 36 of the Vienna

Convention has serious

consequences

ensure enforcement of the rights of foreign nationals under the Vienna Convention while at the same time expecting, and demanding, full protec­tion under the treaty for American citi­zens abroad. Specifically, the United States has been condemned for allow­ing the death penalty to be carried out on foreign nationals whose rights under the Vienna Convention were clearly violated. Executions of foreign nationals have been allowed to go for­ward in this country despite orders issued by the International Court of Justice to stay the executions pending final decision in lawsuits filed against the United States by their respective governments. Failure to enforce Article 36 of the Vienna Convention and to provide an effective remedy for its vio­lation not only violates international law, it weakens the status and author­ity of the United States in the interna­tional community, and places Americans abroad at serious risk.

II. Article 36 of the Vienna Convention on Consular Relations

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 The United States Senate ratified the VCCR in 1969.6 To date, more than 160 nations are parties to the VCCRJ

Under the Supremacy Clause of the Constitution of the United States, the VCCR is the law of the land, and is bind­ing on the states.s The VCCR is deemed a self-executing treaty,9 which means that the treaty is the equivalent of an act of Congress, and operates without the aid of any enabling legislation. Self-executing treaties give rise to judi­cially enforceable rights. 10

Article 36 of the VCCR, pertaining to arrest or detention of foreign nationals, states as follows:

1. With a view to facilitating the exercise of con­sular functions relating to nationals of the sending State:

5. 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (April 24, 1963). 6. 115 Congo Rec. 530997 (daily ed. Oct. 22, 1969). 7. Kelly Trainer, The Vienna Convention on Consular Relations in

the United States Courts, 13 Transnat'! Law. 227, 232 (2000). 8. U.S. Const. art. VI, cI.2("all Treaties made, or which shall be

made, under the Authority of the United States shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and Any Tthing in the Constitution or Laws of any State to the Contrary notwithstanding") .

9. See Mark J. Kadish, Article 36 of the Vienna Convention on

42 - THE JOURNAL /JUNE/JULY 2001

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communi­cation with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its con­sular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communica­tion addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person con­cerned without delay of his rights under this sub­paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, cus­tody or detention, to converse and correspond with him and to arrange for his legal representa­tion. They shall also have the right to visit any national of the sending State who is in prison, cus­tody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and reg­ulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Article 36 of the VCCR represents a clear recognition of the unique disadvantages faced by foreign nationals arrested or detained in another country, and provides "a cultural bridge for detained nationals who must otherwise navigate through an unfamiliar and often hostile legal sys­tem."ll The provisions of the VCCR are generally consid­ered to be a codification of customary international law, under which nations assumed an obligation to accord for-

Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l. L. 565, 613 n. 147 (1997). See also, United States V. Torres-Del Muro, 58 F.Supp.2d 931, 932 (C.D. Ill. 1999)(noting that the VCeR is a se!f­executing treaty); United States v. Chaparro-Alcantara, 37 F.Supp.2d 1122, 1124 n.1 (C.D. Ill. 1999)(same), affd 226 F.3d 616 Oth Cir. 2000).

10. Foster V. Nielson, 27 U.S. 253, 314 (1829); The Head Money Cases, 112 U.S. 580 (1884).

11. United States V. Chaparro-Alcantara, 226 F.3d 616,622 Oth Cir. 2000)(quoting William J. Aceves, Murphy V. Netherland, 92 Am. J. Int'! L. 87, 89-90 (1998)).

eign nationals a certain minimum standard of treatment in keeping with prevailing notions of justice.12

III. Litigation of Article 36 of the VCCR in the United States

Despite the fact that the VCCR is a binding, self-executing treaty, two fundamental issues have arisen in federal and state courts in the United States when considering claims under Article 36. The first issue is whether Article 36 con­fers an individual right which is enforceable in courts of the United States. Though most courts decline to reach the issue, it is generally assumed among them that Article 36 does confer individual rights to consular notification and assistance. The second, more troubling issue for the courts, is whether there is a judicially enforceable remedy for a violation of those rights. Each of these issues will be dis­cussed in turn. As will be seen, it is the courts' resolution of the second issue that has posed the most serious problems for the United States in the international community.

A. Individual Rights to Consular Notification and Access under Article 36

The issue of whether Article 36 of the VCCR confers indi­vidual rights is unsettled in state and federal courts. In Breard v. Greene,13 which involved a Paraguayan national's claim that Article 36 was violated by Virginia authorities, the Supreme Court of the United States noted that Article 36 "arguably confers on an individual the right to consular assis­tance following arrest". The Court did not decide the issue, however, and instead held that Breard's claim under Article 36 was procedurally defaulted because it was not asserted in state court.14 In addition, the Court recently denied certiorari in two federal circuit cases which chose to sidestep the issue of whether Article 36 confers individual rights.

In United States v. Li, the First Circuit concluded that "it is far from clear that the Vienna Convention confers any rights upon criminal defendants."15 This conclusion was based in part upon answers provided by the State Department to specific questions posed by the Li court. The State Department asserted in Li that the VCCR was not a treaty establishing an individual right. 16 Similarly, in United States v. Lombera-Camorlinga, the Ninth Circuit, on en bane review, refused to decide whether Article 36 of the

12. Trainer, supra note 7, at 233 n. 32. 13. 523 V.S. 371, 140 L.Ed.2d 529, 118 S.Ct. 1352 (1998). 14. 523 U.S. at 376. 15. 206 F.3d 56, 62 (1st Cir.), cerr. denied 121 S.Ct. 378, 379, 148

L.Ed.2d 292 (2000). 16. Id. at 63. 17. 206 F.3d 882, 885, 890 (9th Cir.), cm. dented 121 S.Ct. 481, 148

L.Ed.2d 455 (2000). 18. see United States v. Lombera-Gamorltnga, 170 F.3d 1241, 1242-

1243 (9th Cir. 1999)(withdrawn). 19. see United States v. Esparza-Ponce, 193 F.3d 1133, 1138 (9th Cir.

1999); United States V. Ore-lrawa, 78 F.Supp.2d 610, 612 (B.D. Mich. 1999); United States v. Torres-Del MUro, 58 F.Supp.2d 931, 933 (C.D. Ill, 1999); United States v. Hongla-Yamcbe, 55 F.Supp.2d 74, 77 (D. Mass. 1999); United States v. $69,530.00 in United States Currency, 22 F.Supp.id 593 (W.O. Tx. 1998); State v. Reyes, 740 A.2d 7, 9-10 (Del. 1999).

20. See, e.g., Republic o/Paraguay v. Allen, 949 F.Supp.2d 1269, 1274

VCCR creates an individually enforceable right, and referred in its opinion to the State Department's correspondence with the First CircuitY The en bane court in Lombera-Camorlinga reversed the decision of a panel of the Ninth Circuit which had held that Article 36 creates an individual right that is enforceable in courts of the United States. 18

Many courts in the United States have held that Article 36 of the VCCR confers individual rights, and that a foreign national therefore has standing to assert those rights in a court of law. 19 By contrast, few courts have suggested that Article 36 confers no individual rights at all. 20 The decision of the Kansas Court of Appeals in State v. Rosas appears to adopt the lat­ter view, although without clearly say­ing SO.21 Most state and federal courts, however, as in Li and Lombera­Camorlinga, have generally followed the lead of the United States Supreme Court in bypassing the issue of indi-

Despite the reluctance of courts to decide the issue, there reaUy should be no dispute as to whether Article 36 of the veCR confers individual rights.

vidual rights, either by avoiding the issue altogether or by assuming, without deciding, that Article 36 of the VCCR does confer individual rights and then moving on to the issue of remedy.22

Despite the reluctance of courts to decide the issue, there really should be no dispute as to whether Article 36 of the VCCR confers individual rights. The language of Article 36(1)(b) of the VCCR seems clear enough: "The said authorities shall inform the person concerned without delay of his rights under this subparagraph." The dissent in Lombera-Camorlinga relied on this "mandatory and unequivocal" language of Article 36(1)(b) to argue that the VCCR establishes individual, enforceable rights.23

Under international rules of treaty interpretation,24 the text of the treaty must be read as a whole, in light of the object and purpose of the treaty, and in consideration of relevant rules of international law and subsequent agree­ments regarding interpretation or application of the treaty provisions. The plain language of the treaty controls, and if

(B.D. Va. 1996)(suggesting that VeCR does not confer private enforceable rights), ajJ'd 134 F.3d 622 (4th Cir. 1998).

21. see 17 P.3d at 384-385(though acknowledging that the defendant, a Mexican national, was not informed of ,his "right" under Article 36(1)(b), the Court neverthele~s stated that the purpose of the VeCR is not to benefit individuals).

22. See United states v. Cbantbadara, 230 F.3d 1237, 1255 (lOth Cir. 2000); United States v. Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir. 2000); United States v. Carillo, 70 F.Supp.2d 854, 859 (N.D. Ill. 1999); United States v. Rodrigues, 68 F.Supp.2d 178, 182-183 (E.D.N.Y. 1999); United States v. Alvarado-Torres, 45 F.Supp.2d 986 (S.D. Cal. 1999); State v. Miranda, 622 N.W.2d 353, 355-356 (Minn.App. 2001); Zavala v.

, State, 739 N.E.2d 135, 140 (Ind. 2000); State v. Cevallos-Bermeo, 754 , A.2d 1224, 1227 {N.}. Super. 2000).

23. 206 F.3d at 889-890. 24. see Vienna Convention on the Law of Treaties, arts. 31, 32, 1155

V.N.T.S. 330 (May 23, 1969).

JUNE/JULY 2001/ THE JOURNAL - 43

the textual language is ambiguous, resort must be made to the travaux preparatoires (legislative history) to determine the treaty's meaning.25

To the extent that the plain language of Article 36(1)(b) leaves any room for doubt as to its meaning, the travaux

Indeed official documents of the United States Department of State repeatedly refer to the rights conferred under Article 36 as individual rights.

preparatoires to the VCCR clearly show that the framers of the treaty, including the United States, intended Article 36 to confer individual rights to consular notification and access. As described by one commentator:

Committee and plenary meeting debates of the Vienna Conference show that there was significant debate over Article 36. In fact, numerous amendments were sub­mitted, and the original draft was completely eliminated from the Convention when it failed to receive the requisite support. In committee meetings, several nations' representatives expressed concern over individual rights. One particular amendment, sub­mitted by Venezuela, received a great deal of attention. This pro-posed amendment to Article

36(1)(a) completely eliminated reference to the national's freedom to communicate with his consul. Some nations supported the amendment because they believed that the Treaty was an inappropriate place to establish an individual national's rights. However, the amendment received strong opposi­tion. It was withdrawn, and eventually replaced with language which included the freedom of the individual to communicate with his consul.

Committee debate over Article 36(1)(b) and (2) also focused on the individual. Many countries insisted upon automatic notification to consuls in cases of arrest or detention of nationals. A primary reason for such notification was to insure due process safeguards for the protection of nationals; however, concern for the free will of the affected national prevailed. The Committee, and eventually the Convention, adopted language that prohibits notification of the consul unless it is requested by the foreign national.

Debate over paragraph two of Article 36 focused on an amendment submitted by the United Kingdom; some nations were concerned that the

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

amendment would "accord privileged status to aliens." In response to the criticism of the amend­ment, the United Kingdom delegate responded "it [is] precisely with aliens and their rights that article 36 [is] concerned." Despite the concerns raised, the United Kingdom amendment was eventually adopted by the conference.

The controversy over Article 36 continued into the plenary meetings. Near the close of the Conference, the United Kingdom submitted an amendment proposal to encourage a compromise on paragraph (1)Cb); specifically, an obligation on the receiving State to inform the detained national of his rights under the paragraph. This amendment was eventually adopted two days before the Conference closed. As ultimately adopted, Article 36 contains each of the necessary safeguards pro­posed to protect individual freedoms, including a prohibition on notification unless the foreign national requests it and a requirement that the for­eign national be told of his right to request such notification.26

And, as noted by the dissent in United States v. Li, the United States delegate to the Vienna Convention voted in favor of the amendment submitted by the United Kingdom.27 Further, in an official letter from the United States Secretary of State to the President of the United States dated April 18, 1969, as part of documents in support of Senate ratification, the Secretary stated that Article 36(1)(b) "requires that authorities of the receiving State inform the person detained of his right to have the fact of his detention reported to the consular post concerned and his right to communicate with that consular post. "28

In Li, the dissenting Chief Judge of the First Circuit criti­cized the majority, not only for disregarding the plain lan­guage of Article 36 which establishes that the protections under Article 36(I)(b) belong to the individual national, but also for completely ignoring the doctrine of self-execution, which renders Article 36 enforceable in courts at the behest of the affected individuaI.29 The dissent pointed out govern­ment counsel's concession at oral argument that the VCCR requires that the individual be notified immediately, and that the treaty was violated in the case. Yet, the dissent stated, "as is apparent from the majority opinion, the con­cessions made at oral argument are for naught. "30 The dis­sent also took issue with the majority's reliance on posi­tions taken by the State Department in adversariallitigation, arguing that such positions were "unpersuasive, particularly as those positions are both self-serving and directly con­trary to the Department's nonlitigation position."31

Indeed, official documents of the United States

Department of State repeatedly refer to the rights conferred under Article 36 as individual rights. The State Department's Foreign Affairs Manual, in reference to the rights of American detainees abroad, states that Article 36 of the VCCR "provides that the host government must notify the arrestee without delay of the arrestee's right to communi­cate with the American consul. "32 The "Consular Notification and Access" handbook issued by the State Department in January, 1998, instructs federal, state, and local law enforcement officials on the procedure and proto­col for informing arrested or detained foreign nationals of their rights under Article 36 of the VCCR. 33 Regulations of the United States Department of Justice also codify the rights to consular notification and access embodied in Article 36,34 as do those of the United States Immigration and Naturalization Service.35

2. Remedy for Violation of Rights under Article 36

Assuming that Article 36(1)(b) of the VCCR does confer individual rights, there still remains the issue of an appro­priate remedy for a violation of those rights. Most courts in the United States have refused to supply a remedy for a VCCR violation, which probably explains why courts are reluctant to state definitively that Article 36 confers individ­ual rights in the first place. If a foreign national has individ­ual rights to consular notification and access upon arrest or detention which are enforceable in court, then there must be a remedy to vindicate a violation of those rights.

One thing seems clear from the decisions of state and federal courts on the issue of remedy: If a claim under Article 36 of the VCCR is not raised early, it may be waived. This was the result reached by the Kansas Court of Appeals in State v. Ameen, which held that Ameen's claimed preju­dice from an Article 36 violation was "speculative" because he failed to raise the issue in the trial court and therefore "no evidentiary basis for the claim was properly established as part of the record on appeal."36 In Ademodi v. State,37 on an application for post-conviction relief, the Minnesota Supreme Court held that the petitioner waived his VCCR claim because he failed to raise the issue on direct appeal,38 The United States Supreme Court in Ereard v. Greene found that Breard had procedurally defaulted his VCCR claim under federal habeas corpus law because he did not assert it in state court.39 Breard was subsequently executed in the state of Virginia. These cases demonstrate that it is incumbent on defense counsel representing a for­eign national to determine at the outset whether his or her client has been properly notified of their rights under Article 36 of the VCCR, and to raise an Article 36 violation at the first opportunity.

32.7 Foreign..waits Manu$! §411.1 (1984). 33.A~l3;ble at ..

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,t9.5 '(1:S.lIIt 375-376.' ... , .: Ii.. .•. , ..~'.. l4i~riifa p. Ariza. 1'JQ. 384 U.S. 436, 16 L,eq;24 q~.4~:. 86 s .. lCtl 1602 (1966)(hqllding;thllt a~isslbility In evidence.of.any IIta~~entLgiten ',; <,'" 'I " , : :, I i' :: ;' .'i !: '

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Defendants raising a VCCR claim have most often argued that a failure to advise them of their rights under Article 36 requires the suppression of incriminating statements or a new trial, equating a VCCR violation with a Miranda 40 violation. But even where the merits of an Article 36 claim have been reached, most courts in the United States have required that the defendant show actual prejudice in order to obtain relief. These courts have generally rejected suppression as too extraordinary a remedy for a VCCR violation - on the ground that the rights under Article 36 are less weighty than fundamental constitutional rights; on the ground that, as long as a for­eign national is advised of the Miranda rights, no prejudice from a VCCR violation can be shown; and even on the ground that where preju­dice is shown, suppression is never­theless an inappropriate remedy.

Some courts have held that the exclusionary rule cannot be invoked for a violation of Article 36 of the VCCR, reasoning that the treaty does not create any fundamental right to be

One thing seems clear from the decisions of state and federal courts on the issue of remedy: Ifa claim under Article 36 of the VCCRis not raised early, it may be waived.

protected by the remedy of suppression. For instance, in United States v. Chaparro-Alcantara,41 the federal district court of Illinois held that the treaty violation must rise to the level of a constitutional violation in order to invoke the exclUSionary rule, stating: "It is clear that Article 36 does not create a 'fundamental' right, such as the Sixth Amendment right to counsel, or the Fifth Amendment right against self-incrimination which originates from the concept of due process ... ,,42 Applying the same logic, the New York federal district court in United States v. Rodrigues43

stated that consular notification "is not a fundamental right derived from the Constitution," and therefore "[tlhe princi­pal justification for excluding relevant evidence - to reduce governmental infringement on fundamental constitutional rights - is not implicated when Article 36 of the [VCCRl is violated. "44

Although, under the Supremacy Clause of the Constitution, treaties are placed "on the same footing" with federal statutes,45 even the court in Rodrigues acknowl­edged an exception to the general rule that the exclusion­ary rule is available only to remedy violations of fundamen­tal constitutional rights. The court noted that the United States Supreme Court has applied the exclusionary rule for violations of federal statutes, specifically in the McNabb-

during cUlItodial Interrogation depends <i>n iwhetl;ler sl.Jspect provided w1th. warning sufficient to prQtect the su~~s, Fifth; Amendment right against lIelfclnCrillninati9n). . ,. ... • .,.. . .. .

.41.!3~ F;Supp.~dll~2.· 42: 14 aPl2571126~.. , " : 43; 6$ P.~upp;~d.178.. •. .. ., i... .: .... . ;44: 1'1 ~t ~1 Sf!8a/sr,J, Unltet! SfaifS it. ~6~~O'~'npn#erJ Sjafes CU~, ~u 22.F.$upp.2d 593,.[ ii\. Ii'; ii' ..••• ... .;

!45f see : ~p.Roberlson, l24!U,~. ~90, .194\: 3,1 tiEd!. ~,+8S.dt. 456 (~8f;18)J' .I'

i; ~i ,

JUNE/JULY 2001/ TIlE JOURNAL - 45

Mal/ory delay-in-presentment line of cases.46 In fact, a fed­eral magistrate judge had relied on this line of cases to rec­ommend suppression of custodial statements for an Article

36 violation to the federal district court in United States v. Miranda,47 but the

It has been district court rejected the magistrate's argued that the right of

notification in Article 36 of

the VCCR

recommendation, finding that the vio­lation did not rise to the same level or require the same remedy as a violation of an individual's due process rights.48

The Texas Court of Criminal Appeals went to great lengths to avoid a rem­edy for a VCCR violation. In Rocha v. State,49 the Texas court considered an Article 36 violation in the context of that state's exclusionary rule, which provides that no evidence taken in violation of any provision of the state constitution or state laws, or in viola­tion of the "Constitution or laws" of the United States shall be admitted as

encompasses fundamental

issues similar to those

protected by the Miranda evidence in any criminal case. 50 doctrine. . . Relying on the "orthographic differ­

ence between 'laws' and 'law'," and noting that the Supremacy Clause

refers to treaties as "law", the court majority in Rocha rea-soned that, "Under Supremacy Clause usage, then, constitu­tions and treaties are 'law' but are not 'laws"', and the fact that the state statute "uses the countable plural 'laws'" was "an indication that the provision refers to statutes and not to 'law' in a more general sense."51 As if concerned that this reasoning was unclear, the court attempted to explain itself further in a footnote to its opinion: " ... That a treaty is equal to a law does not mean that a treaty is the same as a law. And, though a treaty is equal in power to a law, if it be not a law, then a provision that applies only to 'laws' cannot apply to treaties, despite their equal status."52 Not surprisingly, four judges strongly disagreed with the major­ity's reasoning, stating that the state's exclUSionary rule was a permissible enforcement mechanism for violations of Article 36 of the VCCR. These judges nevertheless con­curred in the result, stating that under the facts of the case no causal connection between the VCCR violation and statements taken by police had been shown.53 Ironically, just the previous year the same Texas Court of Criminal Appeals held in Maldonado v. State that a VCCR violation

46. 68 F.Supp.2d at 185(citing Mallory v. United States, 354 U.S. 449, 1 L.Ed.2d 1479, 77 S.Ct. 1356 (1957); McNabb v. United States, 318 U.S. 332,87 L.Ed. 819, 63 S.Ct. 608 (1943».

47. 65 F.Supp.2d 1002 (D. Minn. 1999). 48. [d. 49. 16 S.W.3d 1 (Tx.Crim.App. 2000). 50. [d. at 13(citing Vernon's Ann. Texas C.C.P. art. 38.23(a». 51. [d. at 14. 52. [d. at 15, n. 12. 53. [d. at 23-30(Holland, J., concurring, joined by Meyers, J., Price, J.,

and Johnson, J.). 54.998 S.W.2d 239,247 (Tx.Crim.App. 1999). 55. See also, Trujillo v. State, 85 S.W.3d 824 (Tx.App. 2000)On another

non-capital case, the court found that the defendant's two pre-trial statements should have been suppressed as a result of an Article 36 violation) .

56.68 F.Supp.2d at 184(citing United States v. Alvarado-Torres, 45

46 -TIlE JOURNAL /JUNE/JULY 2001

would fall under the state's exclUSionary rule.54 It is inter­esting to note that Rocha was a death penalty case, while Maldonado was not.55

Other courts have found that the giving of Miranda warnings vitiates any claim of prejudice from a VCCR viola­tion. As was stated by the court in United States v. Rodrigues: "Prejudice has never been - nor could reason­ably be - found in a case where a foreign national was given, understood, and waived his or her Miranda rights. Courts have uniformly found that no prejudice can exist in that situation, because the advice a consular official would give would simply augment the content of Miranda, which the foreign national has already waived.,,56 In United States v. Alvarado-Torres, the court found that notification under the VCCR would have been merely cumulative of the Miranda warnings, which the defendant had waived. 57 Still other courts have relied on policy reasons to reject applica­tion of the exclusionary rule for a VCCR violation, stating that the effect of this remedy would be the loss of relevant and probative evidence. 58

The reasoning of these courts in denying a remedy for a VCCR violation has been severely criticized. It has been argued that the right of notification in Article 36 of the VCCR encompasses fundamental issues similar to those protected by the Miranda doctrine, established to protect individuals in custody by ensuring that they are made aware of certain fundamental constitutional rights, which can only be waived knowingly and voluntarily. 59 Further, failure to equate Article 36 with a fundamental constitu­tional right and thereby foreclosing a finding of prejudice for its violation is flawed, because treaty provisions are the "law of the land" under the Supremacy Clause as much as federal statutes and the Constitution. Finally, Article 36 of the VCCR embodies a presumption of prejudice when a foreign national is arrested, inasmuch as Article 36 is a recognition that an individual arrested in a foreign country is at a unique disadvantage, and the denial of rights under Article 36 "deprives the foreign national of equality of legal process and the ability to mount a proper defense.,,6o

One state court affirmatively held that the failure to advise a foreign national of the rights under Article 36 was prejudicial and required the suppression of incriminating statements. In State v. Reyes,61 the Delaware Supreme Court framed the issue as "not whether Defendant would have asserted his Article 36 consular notification rights, but whether or not, following his arrest, Defendant was

F.Supp.2d 986, 990-991 (S.D. Cal. 1999); United States v. Tapia-Mendoza, 41 F.Supp.2d 1250, 1254-1255 (D. Utah 1999); Untted States v. Cbaparro­Alcantara, 37 F.Supp.2d 1122, 1126-1127 (C.D. Ill. 1999). Accord, United States v. Raven, 103 F.Supp.2d 38 (D. Mass. 2000); United States v. Ore­[rawa, 78 F.Supp.2d 610, 613 (E.D. Mich. 1999); State v. Miranda, 622 N.W.2d 353,356-357 (Minn.App. 2001); State v. Rosas, 17 P.3d 379, 386 (Kan.App.2000).

57. 45 F.Supp.2d at 990. 58. Rodrigues, supra, 68 F.Supp.2d at 185-186; Alvarado-Torres, supra,

45 F.Supp.2d at 994. 59. Kadish, supra note 9, at 603-607. See Miranda, 384 U.S. 436. See

also, Dickerson v. United States, 530 U.S. 428, 147 L.Ed.2d 405, 120 S.Ct. 2326 (2000)(holding that Miranda was a constitutional decision of the Court which may not be overruled by an act of Congress).

60. Kadish, supra. 61. 740 A.2d 7 (Del. 1999).

informed of his consular notification rights.,,62 Stating that the VCCR is the law of the land under the Supremacy Clause, and finding that Article 36 was violated and that the violation was asserted in a timely manner, the court in Reyes held that "a violation of Article 36 is ground for sup­pressing incriminating statements made by a foreign national while in police or government custody.,,63 In addi­tion, relying on the Miranda doctrine that a suspect may be interrogated only if the suspect makes a voluntary, knowing and intelligent waiver of rights, the court held that the burden is on the State to prove by a preponderance of the evidence that the suspect waived the rights under Article 36.64 The court also noted the language in Article 36(2) of the VCCR, which provides that the rights referred to in paragraph 1 of Article 36 "shall be exercised in con­formity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regu­lations must enable full effect to be given to the purposes for which the rights accorded under this Arlicle are intended.,,65

Some courts, in refuSing to invoke the exclusionary rule for an Article 36 violation, have relied on a belief that no other nation has ordered suppression as a remedy.66 However, at least two courts in the United Kingdom have ordered that incriminating statements be suppressed as a result of an Article 36 violation. In the first case, R. v. Bassil and Mouffareg,67 the court held that statements taken from two Lebanese nationals after arresting authorities failed to inform them of their rights to consular notification and assistance must be excluded. No showing of actual preju­dice was required. In reaching its decision, the court con­sidered as factors the defendants' lack of knowledge of the British criminal justice system and their limited English lan­guage skills, and also that the defendants were from a country where it is perceived that an arrested suspect has 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 statements of two Dutch women were suppressed because, following their arrest, they were interviewed with­out being informed of their right to contact their consulate. Even though the court found that the defendants could speak English reasonably well, the court stated that this might be deceptive since the two women were "young people who might wish to appear more sophisticated and worldly wise than they really were."70 The United Kingdom has also codified in its criminal code the rights to consular notification and access under Article 36 of the VCCR.71

62. Id. at 13. 63. Id. at 14. See also, Flores v. johnson, 210 F.3d 456 (5th Cir.

2000)(though VCCR claim was procedurally barred on federal habeas, the court recognized that if Article 36 confers an individual right, the remedy would be application of the exclUSionary rule).

64. Id. 65. Id. at 9(emphasis added). 66. See United States v. Chaparro-Alcantara, supra, 226 F.3d at 622;

United States v. Rodrigues, supra, 68 F.Supp.2d at 186; United States v. Alvarado-Torres, supra, 45 F.Supp.2d at 994.

67. (1990) 28 July, Acton Crown Court, HHJ Sich, Reported in Legal Action 23, December 1990.

68.Id. 69. (1991) 31 May, Snaresbrook Crown Court, HHJ Sich, Reported in

Legal Action 12, September 1991. 70. Id. 71. Police and Criminal Evidence Act of 1984 (PACE), Code C,

Section 7.

3. International Law Mandates a Remedy for a VeeR Violation

The recognized remedy for a treaty violation under inter­national law is restoration of the status quo ante, returning the parties to the position they would have occupied had the violation not taken place.72

This principle of annulment of the international wrong has been repeat­edly invoked by the International Court of Justice.73 It has been force­fully argued that, in the context of a criminal case, a return to the status quo ante for a VCeR violation requires suppression of evidence obtained in violation of the treaty, or a new trial,74 Under Article 36(2) of the VCCR, the laws and regulations of the receiving State must enable full effect to be given to the purposes of the rights accorded under Article 36(1), and since the purpose behind Article 36(1)(b), like that of Miranda, is to make a suspect aware of his rights before he unknowingly waives them, it is argued that a violation of Article 36 requires the same presumption of

Some courts, in refUSing to invoke the exclusionary ruleforan Article 36 violation, have relied on a belief that no other nation has ordered suppression as a remedy.

prejudice as a Miranda violation or a violation of the right to counsel,75

IV. Failure to Abide by Article 36 of the VeeR Threatens the Foreign Relations of the United States

The reluctance of American courts to enforce a remedy for a VeCR violation may be a reflection of a more general reluctance on the part of courts in the United States to incorporate international law into the criminal law con­text.76 It may also reflect a judicial bias against international law.77

In any event, despite their withholding of an enforcement mechanism for a VCCR violation, one thing that United States courts do agree upon is that non-compliance with Article 36 of the VCeR constitutes a serious treaty violation which poses a threat to the foreign relations of the United

72. Restatement (Third) of the Law of Foreign Relations §901 (987). 73. See Texas Overseas Petroleum Co/California Asiatic Oil Co. v.

Government of the Libyan Arab Republic, 17 LL.M. 1 (1978); Temple of Preah Vihear(Cambodia v. Thail.), 1962 I.C.]. 6, 37 (June 15); Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.e.]. 3 (Feb. 5)(separate opinion of Fitzmaurice, J.).

74. Kadish, supra note 9, at 610. 75. Id. at 609-611(citing Strickland v. Washington, 466 U.S. 668

(1984), and Miranda, 384 U.S. 436). See also, Dickerson, supra, 530 U.S. 428.

76. See Eric G. Luna and Douglas]. Sylvester, Beyond Breard, 17 Berkeley]. Int'l L. 147 (1999)(noting the reluctance of U.S. courts to apply international law in the criminal context, while continuing to expand the application of international law in the civil context).

77. See Christopher E. van der Waerden, Death and Diplomacy: Paraguay v. United States and the Vienna Convention on Consular Relations, 45 Wayne L. Rev. 1631, 1646 (1999)(noting a growing judicial 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 hold­ing that the exclusionary rule could not be invoked for an Article 36 violation, the court stated that "it is not the

Nowhere is the threat to

foreign relations more visible than in the context of

the death penalty in the United States and our non­

compliance with Article 36

of the VCCR.

court's intention to deprecate the seri­ousness of a treaty violation. . . . If American law enforcement officials disregard, or perhaps more accurately, remain unaware of the notification provision in Article 36, then officials of foreign signatories are likely to flout those obligations when they detain American citizens. "79 Likewise, the court in United States v. Alvarado­Torres,80 after holding that suppression was not an appropriate remedy for an Article 36 violation, stated that, "In so holding, the Court does not intend to minimize the Government's violation of the [Vienna] Convention, as such a violation gravely troubles the Court, as it has other courts ... "81 Such senti­ments were similarly expressed by the court in United States v. Chaparro­Alcantara.82 But such lip service to the importance of treaty commitments, in

the face of refusals to provide an enforcement mechanism for violations of those commitments, risks being perceived as an empty gesture.83 Moreover, the failure to enforce treaty commitments in our own country creates a danger­ous risk that other countries will do the same to American detainees abroad.84

Nowhere is the threat to foreign relations more visible than in the context of the death penalty in the United States and our non-compliance with Article 36 of the VCCR. In recent years, foreign nationals have been executed in the United States despite clear violations of Article 36, and over the active protest of the international community. Angel Breard, a Paraguayan national, was executed in Virginia in 1998. The brothers Karl and Walter LaGrand, nationals of Germany, were executed by Arizona authorities in February and March of 1999. Joseph Stanley Faulder, a Canadian national, was executed in Texas in 1999. In each of these cases, it was undisputed that state authorities failed to advise the individuals of their rights under Article 36 of the VCCR. Moreover, these individuals were executed despite

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

pleas from the State Department, the International Court of Justice, and each of the foreign nations involved that the executions be stayed pending consideration of their Article 36 claims.8s The international outcry over these executions was so great that, in 1999, for the first time in history, the United States was placed on Amnesty International's list of human rights violators.86

Both Paraguay and Germany filed suit against the United States in the International Court of Justice CIC]), seeking redress of Article 36 claims involving their respective nationals facing imminent execution in the United States.87

With Angel Breard's execution date in Virginia fast approaching, Paraguay filed suit in the IC] on April 3, 1998, arguing that any criminal liability imposed on Breard by the United States in violation of its international treaty obliga­tions under the VCCR was void and that Paraguay was enti­tled to a return to the status quo ante, the situation that existed before the failure to provide the required notifica­tions to Breard occurred.88 The ICJ, finding that a valid dis­pute existed over which it had jurisdiction, issued a Provisional Measures Order against the United States to "take all measures at its disposal" to postpone Breard's exe­cution until a final judgment was issued.89

In the meantime, writs of certiorari by both Breard and Paraguay were pending in the United States Supreme Court. In a brief to the Supreme Court, the United States Department of Justice asked the Court to deny the certiorari petitions. Though conceding that a treaty violation had occurred, the Department of Justice argued that the viola­tion did not affect the outcome of Breard's trial, and that the IC]'s order did not justify a stay of execution or a new trial. At the same time, however, the State Department sent a letter to the Virginia Governor, urging him to voluntarily delay Breard's execution until the IC] ruled on the merits of the case. In the letter, Secretary of State Madeleine Albright stated that if Breard's execution was carried out in spite of the IC]'s order, other countries may "contend incorrectly that the U.S. does not take seriously its obligations under the Convention", and that executing Breard as scheduled may hinder the United States' "ability to ensure that Americans are protected when living or traveling abroad."90 The Governor of Virginia as well as the United States Supreme Court refused to stay the execution, and Breard was executed as scheduled.91

Germany requested similar relief from the IC] when it

filed suit against the United States in 1999, in an attempt to stay the execution of Walter LaGrand after his brother Karl was executed in Arizona in February of 1999. As was the case with Paraguay, the IC] issued a provisional order against the United States to stay the execution pending a ruling on the merits of Germany's case against the United States.92 Simultaneously, Germany filed motions in the United States Supreme Court, invoking the Court's original jurisdiction, requesting leave to file a bill of complaint and for preliminary injunctions against the United States and the Governor of Arizona to enforce the IC]'s provisional order. The Supreme Court subsequently denied these motions. Even though the Arizona Board of Executive Clemency voted to recommend a reprieve for LaGrand so that Germany would have time to file an orderly request with the IC], the Governor of Arizona rejected the recommenda­tion, and Walter LaGrand was executed on March 3, 1999.93

In Paraguay's case, the United States issued a formal apology for the failure to notify Angel Breard under the VCCR, stating in part that, "Consular notification is no less important to Paraguayan and other foreign nationals in the United States than to U.S. nationals outside the United States .... We cannot have a double standard ... "94 The IC] subsequently removed Paraguay's case from its docket at the request of Paraguay, and with the concurrence of the United States, on November 10, 1998.95

Germany, however, has not dismissed its lawsuit against the United States in the IC]. The IC] heard oral arguments in the LaGrand case from November 13 to November 17, 2000. Germany is requesting the international court to rule that: 1) the United States, by not informing Karl and Walter LaGrand, following their arrest, of their rights under Article (1)(b) of the VCCR, and by depriving Germany of the pos­sibility of rendering consular assistance, which ultimately resulted in the LaGrands' executions, violated its interna­tional legal obligations under the VCCR; 2) that the United States, by applying rules of domestic law, in particular the doctrine of procedural default, to preclude the LaGrands from raising their claims under the VCCR, and by executing them, violated its international legal obligation under the VCCR to give full effect to the purposes for which the rights accorded under Article 36 are intended; 3) that the United States, in failing to take all measures to ensure that Walter LaGrand was not executed pending a final decision of the IC], violated its international obligation to comply with the IC] order and to refrain from any action which might inter­fere with the subject matter of a pending judicial proceed­ing; and 4) that the United States must provide assurances

92. F.R.G. v. u.s., supra note 87, Order of Mar. 3, 1999, available at <hnpJ/www.icj-cij.org>.

93. O'Driscoll, supra note 86, at 331-334. 94. Luna &: Sylverster, supra note 76, at 192 n. 223(citing Dep't St.

Press Releases, Nov. 4, 1998 (James Rubin) at <http://secrerary.state.gov/wwwlbriefmgs/statements/I998/ps981104.ht ml»).

95. Para. v. U.S., supra note 87, Order of Nov. 10, 1998, available at <http://WWW.icj-cij.org>.

96. InterntJtionai Court of justice Press Communique 2000/38, Nov. 17, 2000, available at <http://WWW.icj-cij.org>.

97. See Charles B. Radlauer, A Clash of Power and jurisdiction: The United States Supreme Court v. The InterntJtional Court of justice, 11 St.

that such unlawful acts are not repeated in the future, and that in future cases of detention of or criminal proceedings against German nationals, the United States will ensure the effective exercise of the rights under Article 36 of the VCCR in law and in ••• The practice, and particularly in cases international involving the death penalty, the United States must provide effective review of and remedies for criminal convictions impaired by a violation of the rights under Article 36.96 A deci­sion from the IC] in the LaGrand case will constitute a binding obligation on the United States.97

The Inter-American Court of Human Rights, exercising its advisory jurisdiction under the auspices of the Organization of American States (OAS) , issued a unanimous adviSOry opinion on October 1, 1999, upon a request of Mexico based on violations of Article 36 of the VCCR with respect to Mexican nationals sentenced to death in the United States. The court held that Article 36 of the VCCR con­fers specific legal and human rights on individual foreign nationals, and that in order to protect a foreign national's rights under the treaty, a detainee must be informed of his or

outcry over these executions was so great that, in 1999, for the first time in history, the United States was placed on Amnesty International's list of human rights violators.

her rights under Article 36 at the time of arrest, before any statements are made, whether or not the detainee may be subject to the death penalty.98

In finding that Article 36 of the VCCR confers individual rights, the Inter-American Court specifically noted that the United States, in bringing a case before the IC] involving American hostages seized in Iran, "linked Article 36 of the Vienna Convention on Consular Relations with the rights of the nationals of the sending state."99 Moreover, the court held that inasmuch as Article 36 of the VCCR concerns the protection of individual rights of foreign nationals and is therefore part of the body of international human rights law, it specifically implicates the right to due process of law recognized in Article 14 of the International Covenant on Civil and Political Rights, which is binding on the United States. IOO The court further held that a failure to observe a detained foreign national's rights under Article 36 of the VCCR is not only prejudicial to due process of law, but that

Thomas 1. Rev. 489, 504, 513 n. 109 (1999)(citingU.N. Charter art. 94(1). See also, Howard S. Schiffman, Breard and Beyond: The Stlltus oj Consular Notiftcatton and Access Under tbe Vienna Convention, 8 cardozoJ.lnt'l &: Compo 1. 27, 54 (2000).

98. Inter-American Court of Human Rights, Advisory Opinion OC-16/99, para. 141. The OAS countries of EI.5alvador, Domlfiican Republic, Honduras, Guatemala, Paraguay, and Cos~ Rica submitted written comments to the Inter-American Court in support of Mexico's position.

99. Id., paras. 75, 84. See Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. V. Iran), 1980 I.C.J. 3; see also Trainer, supra note 7, at 241.

100. Id, paras. 124, 141.

JUNE/JULY 2001/ THE JOURNAL - 49

imposition of the death penalty in such circumstances con­stitutes a further violation of the right not to be deprived of life arbitrarily, contained in human rights treaties, specifi­cally the American Convention on Human Rights and the International Covenant on Civil and Political Rights. 101

While the advisory opinion of the Inter-American Court is not binding, it is certainly representative of the expanding view of the international community that the United States does indeed live by a "double standard," expecting other countries to guarantee the rights under Article 36 of the VCCR to American citizens abroad while denying that same guarantee to foreign nationals in the United States. Indeed, it has been argued that the judicial attitude in the United States toward Article 36 claims reflects a flagrant disregard for international law, which may have an adverse effect when judgments of the United States are considered in international tribunals.102

V. Conclusion

If, as one senior State Department official has said, the rights under Article 36 of the VCCR constitute "a diplomatic Miranda warning,,,103 then they should be enforced as such. Indeed, if there is no sanction for a violation of the

101. ld., paras. 137, 141. 102. van der Waerden, supra note 77, at 1645-1646. 103 See Luna & Sylvester, supra note 76, at 148(citing All Things

Considered (N.P.R. Radio broadcast, Apr. 4, 1998)(statement of Kathy Peterson, Managing Director for Overseas Citizens Services and Crisis

rights under Article 36, then law enforcement officials may well be inclined to disregard them. And they do, as the cases discussed in this article clearly illustrate. Moreover, reciprocity is the foundation of international law.104 The failure to comply with, and enforce, the notification rights under Article 36 of the VCCR in the United States sends a dangerous signal to other nations that the United States does not intend to honor its treaty obligations. This not only jeopardizes the credibility and world leadership of the United States, it poses a serious threat to American nation­als abroad.

It is vitally important, therefore, that the State of Kansas enforce Article 36 of the VCCR with respect to foreign nationals arrested or detained in this state. Law enforce­ment officials, prosecutors, defense counsel and judges all have a duty to ensure that the rights guaranteed under Article 36 are respected and upheld. Indeed, Kansas can altogether avoid the serious consequences of non-compli­ance with Article 36 of the VCCR, both domestic and inter­national, if all Kansas law enforcement officials are made aware of and consistently carry out their notification responsibilities under Article 36 whenever a foreign national is arrested or detained in this state.

Management, U.S. State Department), available in Westlaw, 1998 WL 3644532».

104. Hilton v. Guyot, 159 U.S. 113, 228 (1895). See also, Breard v. Prnett, 134 F.3d 615, 622 (1998)(Butzner,J., concurring).

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.

50 - THE JOURNAL /JUNE/JULY 2001