International Miranda? Article 36 of the Vienna Convention on Consular Relations
| Publication year | 2001 |
| Pages | 41-50 |
| Citation | Vol. 70 No. 6 Pg. 41-50 |
70 J. Kan. Bar Assn. 6, 41-50 (2001). International Miranda? Article 36 of the Vienna Convention on Consular Relations
70 J. Kan. Bar Ass'n, June/July 2001, 41-50 (2001)
I. Introduction
In State v. Ameen,[1] 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 (1997). 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.
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 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.[5] The United States Senate ratified the VCCR in 1969.[6] To date, more than 160 nations are parties to the VCCR.[7]
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.[8] 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:
(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 sub-paragraph;
(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."[11] The provisions of the VCCR are generally considered to be a codification of customary international law, under which nations assumed an obligation to accord foreign 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 banc review, refused to decide whether Article 36 of the VCCR creates an individually enforceable right, and referred in its opinion...
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