Connecticut Bar Journal
77 CBJ 171.
SURVEY OF 2002-2003 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUT
171SURVEY OF 2002-2003 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUTBY HOUSTON PUTNAM LOWRY(fn*) AND PETER W. SCHROTH(fn**)With this twelfth article in our series, again covering two years, we are now up to date. In some areas that have been perennials in these pages, such as child abduction and service of process, the courts now have more experience in international law, so that the new cases deal with subtleties and details. This year, for the first time, we devote a large part of our Survey to immigration law, especially as it concerns removal of aliens following conviction of an "aggravated felony," noting the rapid increase in the number of cases of this kind and that most of the contested cases involve claims based on human rights treaties.
BASIC RESPECT FOR INTERNATIONAL LAW
In the continuing saga of the Vienna Convention on Consular Relations ("VCCR"),(fn1) the news is better than it was
173last year. The Connecticut Judicial Department has instituted a comprehensive procedure to implement its obligations under the VCCR. Two Justices of the United States Supreme Court filed opinions declaring their improved understanding of the relevant law, but that Court's record remains unacceptable.(fn2)
One effect of the LaGrand case(fn3) was to call attention to Connecticut's lack of procedures to fulfill its obligations under Article 36 of the VCCR. That has been corrected.
173Since March 2003, persons arrested or detained by the State of Connecticut are to be advised by the court as follows:
If you are not a U.S. citizen, you are entitled to have your consulate notified of your arrest.
If your consulate has not been notified yet and you want the Judicial Marshal Services to do so, you can request this now.(fn4)
As this advisement text implies, the Judicial Marshals have the primary responsibility for compliance with the VCCR. The new procedures for Judicial Marshals, issued in April 2003, call for: prompt, courteous notification to the foreign national of the possibility of consular assistance, and prompt, courteous notification to the foreign national's nearest consular officials so that they can provide whatever consular services they deem appropriate.(fn5)
To support this responsibility, the Marshals have been provided a 25-page, quite detailed Policy and Procedure,(fn6) which includes longer versions of the advisement,(fn7) a list of manda-
175tory notification countries and jurisdictions, a form to be used for telefax notification to a consulate and a list of the telephone and telefax numbers of foreign embassies and consulates.
This Policy and Procedure is based mostly on State Department models.(fn8) The step-by-step procedure begins with determining - from the arrest paperwork, from the prisoner's passport or other travel documentation or by simply asking - whether each prisoner is a foreign national and continues through the details of consular notification, recordkeeping and permission for exceptions. Although the Policy and Procedure does not tell the Marshals what to do if the prisoner does not understand English(fn9) (or even that they ought to determine whether he understands what he is being told), the United States would have been spared a great deal of international embarrassment if even a much less comprehensive policy than that now in place in Connecticut had been in effect throughout the United States since the effective date of the VCCR in 1969.
Osbaldo(fn10) Torres, a Mexican national, was arrested for two murders(fn11) and burglary in Oklahoma in 1993, then con-
176victed and sentenced to death. In 1999, he filed a petition for habeas corpus in the U.S. District Court, on the ground, among others, that he was not advised of his rights under Article 36 of the VCCR.(fn12) The writ was denied on the impermissible grounds of procedural default and harmless error,(fn13) in an unpublished opinion(fn14) that apparently applied Breard v. Greene(fn15) as if it had not been overruled by the International Court of Justice in 2001,(fn16) and without a certificate of appealability. In an opaque footnote,(fn17) the Tenth Circuit Court of Appeals refused to allow Mr. Torres to include the VCCR point in his appeal.
Mr. Torres petitioned the Supreme Court for a writ of certiorari, with the support of an amicus curiae brief on behalf of the Government of M,xico. In addition, in January 2003, M,xico filed a case in the International Court of Justice, charging that Mr. Torres and other Mexican nationals had been convicted in the United States in violation of the VCCR.(fn18) In February 2003, the ICJ issued an order requiring the United States to take "all measures necessary" to prevent the execution of the three Mexican nationals in question while the case was pending in the ICJ.(fn19) In November 2003, in full awareness of the ICJ's order (and that it was binding on the United States, including the United States Supreme Court(fn20)), the Supreme Court denied certiorari(fn21) - which, it must be emphasized, does not constitute an endorsement or affirmance of the Tenth Circuit's decision. In contrast to prior cases, however, Mr. Torres was not promptly executed.
In March 2004, the International Court of Justice ruled, as expected, that Mr. Torres's and other Mexican nationals' rights under the VCCR had been violated.(fn22) In May 2004, the Governor of Oklahoma, referring to the VCCR, commuted his death sentence to a sentence of life without the possibility of parole.(fn23) "I took into account the fact that the U.S. signed the 1963 Vienna Convention and is part of that treaty," the Governor said.(fn24)
The good news is that Justices Stevens and Breyer filed vigorous dissents to the denial of certiorari. Justice Breyer believed "further information, analysis, and consideration"(fn25) were necessary before the vote on whether to grant certiorari, in particular because: the United States has not filed a brief directly addressing the issues Torres has raised in this case, nor has any group of individuals expert in the subject of international law. The United States has filed a brief in opposition in the related cases Ortiz v. United States, No. 02-11188, and Sinesterra [sic] v. United States, No. 03-5286, in which it argues, inter alia, that "the ICJ does not exercise any judicial power of the United States, which is vested exclusively by the Constitution in the United States federal courts." Brief in Opposition 18. While this is undeniably correct as a general matter, it fails to address the question whether the ICJ has been granted the authority, by means of treaties to which the United States is a party, to interpret the rights conferred by the Vienna Convention. The answer to Lord Ellenborough's famous rhetorical question, "Can the Island of Tobago pass a law to bind the rights of the whole world?" may well be yes, where the world has conferred such binding authority through treaty. See Buchanan v. Rucker, 9 East 192, 103 Eng. Rep. 546 (K. B. 1808). It is this kind of authority that Torres and Mexico argue the United States has granted to the ICJ when it comes to interpreting the rights and obligations 177set forth in the Vienna Convention.(fn26)
This is not as clear as it might be, but perhaps Justice Breyer is saying that the International Court of Justice, rather like the Island of Tobago, is small and generally unimportant; if so, his education should continue.
Justice Stevens, in contrast, spoke directly, and correctly, to the merits: My dissent from the hastily crafted opinion in Breard v. Greene- rested on procedural grounds: The Court's departure from its normal rules governing the processing of certiorari petitions deprived us of the briefing and argument necessary for the careful consideration of important issues-. I am now persuaded that my dissent should have been directed at the merits of the Court's holding-.
Applying the procedural default rule to Article 36 claims is not only in direct violation of the Vienna Convention, but it is also manifestly unfair. The ICJ's decision in LaGrand underscores that a foreign national who is presumptively ignorant of his right to notification should not be deemed to have waived the Article 36 protections simply because he failed to assert that right in a state criminal proceeding.(fn27)
INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION A. Statistics
For our 2000-2001 Survey,(fn28) we collected some previously published figures on the annual caseloads in 2000 and 2001 of some of the most popular providers of international alternative dispute resolution services. For this Survey, we did our own modest primary research on the point. For these four years, the annual caseload for the top three providers(fn29) was:
178Name 2000 2001 2002 2003 American Arbitration Association 507 649 672 646 International Chamber of Commerce 541 566 593 580 London Court of International 87 71 88 104 Arbitration(fn30)
Although the absolute numbers are smaller, the rate of growth of the caseload of the International Centre for the Settlement of Investment Disputes ("ICSID")(fn31) has been much greater. In the period 1 July 2002 through 30 June 2003, over 25 new arbitration cases were registered, raising to 63 the number of pending cases.(fn32)
Inter-American Arbitration Commission Rule Changes
The Inter-American Commercial Arbitration Commission ("IACAC")(fn33) was...