Michael J. Larson, Calling All Consuls: U.s. Supreme Court Divergence from the International Court of Justice and the Shortcomings of Sanchez-llamas v. Oregon

• Jurisdiction: United States,Federal
• Publication year: 2008
• Citation: Vol. 22 No. 1

CALLING ALL CONSULS: U.S. SUPREME COURT DIVERGENCE FROM THE INTERNATIONAL COURT OF JUSTICE AND THE SHORTCOMINGS OF SANCHEZ-LLAMAS V. OREGON

INTRODUCTION

Imagine being arrested in a foreign country where you do not understand the language of the officials interrogating you. Picture yourself not knowing or understanding the laws of the foreign state holding you captive. For those lost individuals tossed into this unsettling-and perhaps life-threatening-situation Article 36 of the Vienna Convention on Consular Relations (Vienna

Convention) offers a lifeline.¹Article 36 provides an arrested foreign national the right to notify his consulate of his arrest; it imposes a duty on the arresting country to inform the foreign national of his right to contact his consulate, allowing the consulate to aid in the detainee's legal defense. This right is significant because a foreign detainee likely does not understand the arresting country's legal system. As one commentator noted, however, Article 36 has the "most tortuous and checkered background" of any of the Vienna

Convention's 79 articles.²While the meaning of Article 36 has been called into question numerous times in U.S. courts, no coherent jurisprudence has developed on the rights and duties associated with the provision.

Sanchez-Llamas v. Oregon illustrates the latest interpretation of Article 36 in U.S. Supreme Court jurisprudence.³Sanchez-Llamas involved two foreign nationals who were not informed of their Article 36 rights.⁴Petitioner Sanchez-Llamas is currently serving a 20½-year prison sentence for attempted murder and other offenses, and Petitioner Bustillo was sentenced to thirty years in prison for first-degree murder.⁵In its denial of relief to Sanchez-Llamas and Bustillo, the Supreme Court disregarded recent International Court of Justice (ICJ) decisions, holding that suppression of evidence is not a remedy implicit

318 EMORY INTERNATIONAL LAW REVIEW [Vol. 22 in the Vienna Convention and that a state procedural rule can bar the assertion of a Vienna Convention claim.⁶

This Comment analyzes the importance of consular notification, the Supreme Court's latest interpretation of Article 36 in Sanchez-Llamas v. Oregon, and the ramifications of the Court's holding in light of the International Court of Justice's interpretation of Article 36 and our increasingly globalized society. Part I presents the history and purpose of the Vienna Convention and discusses the issues raised in Sanchez-Llamas v. Oregon. Part II examines different courts' interpretations of Article 36, including the opinion of the International Court of Justice. Part III argues that Article 36 of the Vienna Convention confers judicially enforceable individual rights that should not be impeded through state procedural bars and addresses possible remedies to an Article 36 violation, such as the exclusionary rule or the granting of a new trial. Additionally, Part III examines the impact of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes and proposes methods by which a foreign national harmed by a Vienna Convention violation should be able to seek redress.

I. BACKGROUND

A. History and Purpose of Article 36 of the Vienna Convention

The Vienna Convention was created on April 24, 1963, and entered into force on March 19, 1967.⁷The Nixon Administration regarded the agreement, which supplies crucial protections to individuals arrested in member states, as a significant addition to international law, one that would further stabilize international relations.⁸The Vienna Convention regulates relations between consulates and their nationals.⁹The object of the treaty is "to assure consular communication and assistance to such nationals, who may not fully understand the host country's legal regime or even speak its language."¹⁰Consular officers serve as a "cultural bridge" for their nationals detained outside their

2008] CALLING ALL CONSULS 319 home country.¹¹The treaty assumes differences in culture, language, and legal system between the foreign national and the forum state and allows the arrested foreign national to contact his consulate if the arresting country is a signatory of the treaty.¹²

Criminal proceedings can impose distinct disadvantages upon foreign nationals, such as manipulation, intimidation, and exploitation, and Article 36 seeks to limit these effects.¹³In Herrera v. Collins, the U.S. Supreme Court noted that "the central purpose of any system of criminal justice is to convict the guilty and free the innocent."¹⁴Article 36 advances this goal by permitting consular officials to visit, communicate with, and assist detained nationals.¹⁵

One important function in this regard is the consulate's ability to explain the arresting country's legal system to the foreign national in an understandable way.¹⁶

Problems can arise even if the arrestee is proficient in English or has a fluent translator. Unfamiliar cultural norms, nonverbal gestures, values, intentions, and context can all influence a foreign national's decision-making during arrest and subsequent criminal proceedings.¹⁷It is also important for the accused foreign national to realize that although the state may appoint his attorney, the attorney's duty of loyalty lies with the foreign national; the sending state's consulate can provide this information.¹⁸Furthermore, the role of the consulate goes beyond interacting with the foreign national detainee; consular officers can also address potential concerns of defense witnesses, such as emphasizing the importance of cooperating with the defense counsel.¹⁹

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Providing consular assistance also helps protect foreign nationals from falsely confessing to crimes they did not commit.²⁰Alarmingly, "today's interrogation methods are so effective, so powerful, and so calculated to obtain incriminating admissions, that they sometimes influence innocent people to falsely admit to crimes in which they had no involvement."²¹A foreign national's culture and language barriers may exacerbate this problem.²²

Consular access will not always result in exonerating a foreign national detainee.²³However, the consulate can be instrumental in fact finding, which ultimately gives the judiciary a better chance of achieving one of its principal aims: protecting the innocent from wrongful conviction.²⁴

B. Pertinent Provisions of Article 36 of the Vienna Convention

Sanchez-Llamas v. Oregon and prior cases regarding consular notification deem Article 36, which concerns "Communication and contact with nationals of the sending state," as the relevant section of the Vienna Convention.²⁵As the Preamble to the Vienna Convention states, "the purpose of [the] privileges and immunities [embodied in the treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States."²⁶Courts that find that the Vienna Convention does not grant judicially enforceable individual rights often cite the Preamble's language that the treaty is "not to benefit individuals" for support.²⁷However, it is critical to understand the text of Article 36 before making that determination.

Under Article 36(1)(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."²⁸This section

2008] CALLING ALL CONSULS 321 grants a signatory nation's consulate the right to conduct consular relations with an arrested national, including those arrested in the United States.

Article 36 also guarantees the notification of the consul if the detainee so requests. Under Article 36(1)(b), at the arrestee's request, "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."²⁹The receiving state has a duty to inform the detained foreigner of his right to contact his consul.³⁰The State Department interpreted Article 36(1)(b) to mean that notification to the foreign national must be given "'as soon as reasonably possible under the circumstances'" and recommended that this happen prior to booking.³¹

Perhaps the most controversial provision is Article 36(2). It states that the rights afforded under Article 36(1) "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."³²

During the drafting of Article 36, the United States was particularly concerned with protecting the national's personal rights.³³The U.S. government was ardent in the protection of individual rights seemingly to protect Americans arrested in signatory nations. Reciprocity, a fundamental principle of international law, dictates that the United States grant similar protections to foreign nationals arrested in the United States.³⁴However, Sanchez-Llamas demonstrates a gap in this logic.

When an Article 36 violation is alleged, courts consider: (1) whether the

Vienna Convention confers judicially enforceable individual rights; (2)

322 EMORY INTERNATIONAL LAW REVIEW [Vol. 22 whether an Article 36 violation results in material prejudice to the foreign national; and (3) what type of remedy, if any, a court should provide for a violation.³⁵Because the Supreme Court had not ruled definitively on these issues prior to 2006, Sanchez-Llamas gave the Court an opportunity to provide some much-needed clarity.

C. Sanchez-Llamas v. Oregon

Sanchez-Llamas is a consolidated case³⁶that many legal scholars hoped would resolve controversies regarding the Vienna...