The Vienna Convention on Consular Relations: a study of rights, wrongs, and remedies.

• Author: Aceves, William J.

1. INTRODUCTION

   The United States has long recognized the importance of diplomatic and consular relations. Indeed, as a victim of one of the most egregious violations of diplomatic and consular rights in recent memory, the United States has vigorously enforced these obligations on behalf of itself and U.S. citizens abroad.(1) Despite extensive efforts to enforce these rights abroad, the United States has failed to implement the obligations set forth in the Vienna Convention on Consular Relations (Vienna Convention) at home.

   The Vienna Convention was adopted in 1963 to codify the rights and obligations of member states with respect to consular relations.(2) To facilitate the exercise of consular functions, the Vienna Convention provides that consular officials shall be free to communicate with, and have access to, their nationals at all times.(3) Similarly, foreign nationals shall have the same freedom to communicate and meet with consular officers.(4) A particularly sensitive issue arises when a foreign national is detained by law enforcement officials. Article 36(1)(b) of the Vienna Convention provides that the competent authorities shall, without delay, inform a detained national of his right to communicate with consular officials.(5) In addition, Article 36(1)(c) grants consular officials the right to visit, converse, and correspond with a detained national and to arrange for his legal representation.(6) Essentially, the Vienna Convention serves two functions. It serves the needs of foreign nationals by allowing them to communicate with consular officials when they are detained. Given the likelihood of culture and language differences, consular officials can provide critical information about the legal process and the rights of detained nationals. The Vienna Convention also serves the needs of signatory states by allowing them to monitor the fair treatment of their nationals abroad.

   Despite the importance of the Vienna Convention and the right of consular access, the United States has failed to ensure that these obligations are fully implemented domestically. Specifically, the United States has failed to ensure that foreign nationals are notified of their right to consular access when detained by state and local officials. If consular officials are not promptly notified when foreign nationals are detained, they are unable to communicate with their nationals and provide them with effective assistance. On several occasions, foreign nationals have raised this treaty violation as a basis for challenging criminal proceedings. Courts, however, have routinely dismissed these claims on the grounds that the defendants were not prejudiced by the failure to adhere to the Vienna Convention or that they failed to raise the claim in a timely manner. Until recently, these cases did not receive significant attention, in part, because they were raised by foreign nationals in the course of criminal proceedings.

   On September 12, 1996, the Republic of Paraguay, the Paraguayan Ambassador to the United States, and the Paraguayan Consul General filed an action against Virginia officials in U.S. District Court for the Eastern District of Virginia to seek redress for violations of the Vienna Convention and the Treaty of Friendship, Commerce and Navigation signed between the United States and Paraguay (Treaty of Friendship).(7) The case arose from the arrest and detention of Angel Breard, a citizen of Paraguay. Breard was subsequently convicted of murder and sentenced to death. Despite his detention, Breard was never notified of his right to consular access under the Vienna Convention. Similarly, Paraguay was never notified of Breard's detention under the Treaty of Friendship. Indeed, Paraguay did not become aware of Breard's detention until well after his conviction and sentence to death.(8) Paraguay subsequently filed its lawsuit to seek redress for these treaty violations. Specifically, Paraguay sought declaratory and injunctive relief including an order declaring Breard's conviction void. The district court dismissed the lawsuit for lack of subject matter jurisdiction, and the decision was subsequently affirmed by the Fourth Circuit.(9) A similar lawsuit was also filed by the Mexican government against Arizona state officials, and a similar outcome was reached in the Ninth Circuit.(10)

   These cases are unique in several respects. In contrast to other cases in which criminal defendants have raised violations of the Vienna Convention to challenge their underlying criminal convictions, Paraguay and Mexico petitioned the courts to redress their own rights under the Vienna Convention. While foreign governments have been granted access to U.S. courts in the past, these cases are, perhaps, the first in which foreign governments have sought to enforce treaty obligations in federal courts. These cases certainly represent the first time that foreign governments have petitioned U.S. courts to redress violations of the Vienna Convention.(11)

   This Article provides an overview of these unique cases and the ability of foreign governments to raise treaty violations in federal courts. Part II examines the Vienna Convention and other consular agreements, focusing on the right of consular access. Part III reviews the application of the Vienna Convention by the United States both at home and abroad. Part IV examines several cases in which foreign nationals have raised the failure of state officials to comply with the Vienna Convention as a basis for challenging criminal proceedings. Part V reviews two cases brought by foreign governments to seek redress for violations of the Vienna Convention: Paraguay v. Allen(12) and United Mexican States v. Woods.(13) Part VI then addresses three issues raised by these cases: (1) when is the United States required to comply with treaty obligations; (2) whether a foreign government can seek redress in U.S. courts for treaty violations; and (3) what remedies are available in U.S. courts for treaty violations. Finally, Part VII sets forth several recommendations to improve U.S. compliance with the Vienna Convention and other consular agreements.

2. THE VIENNA CONVENTION ON CONSULAR RELATIONS

   The importance of consular relations has long been recognized.(14) Indeed, its roots can be traced to the city-states of ancient Greece.(15) The Greek prostates acted as intermediaries between Greek colonists and local governments.(16) As an effective political institution, however, the consul did not truly develop until the dawning of the commercial age during the early Middle Ages. According to one noted commentary:

   In the commercial towns of Italy, Spain, and France the merchants

   used to elect one or more of their fellow merchants as arbitrators in

   commercial disputes, and these were called juges consuls or consuls

   marchands. When, between and after the Crusades, Italian,

   Spanish, and French merchants established themselves in Near

   Eastern countries, they brought the institution of consuls with

   them, merchants from the same nation electing their own consul.

   The competence of these consuls became gradually enlarged

   through treaties, called "capitulations," between the home states of

   the merchants and the mohammedan monarchs in whose territories

   they had settled. The competence of consuls came to comprise all

   civil and criminal jurisdiction over, and protection of, the privileges,

   life, and property of their countrymen.(17)

   Gradually, the consular institution spread to other countries.(18) By the twentieth century, consular agreements had been adopted by numerous countries.(19)

   In 1949, the International Law Commission designated the subject of consular relations as an area ripe for codification.(20) However, it did not begin examining the issue until 1955. After several years of study, the International Law Commission adopted the Draft Articles on Consular Relations on July 7, 1961.(21) Subsequently, the General Assembly announced that it would convene a conference to prepare an international agreement on consular relations.(22) The United Nations Conference on Consular Relations met in Vienna, Austria, from March 4 until April 22, 1963.(23) Over ninety countries as well as several international organizations attended the Conference.(24) On April 24, 1963, the Conference adopted the Vienna Convention and two optional protocols.(25) The Vienna Convention entered into force on March 19, 1967.(26) To date, the Vienna Convention has been ratified by over 130 countries.(27) It has been referred to as "undoubtedly the single most important event in the entire history of the consular institution."(28)

   The Vienna Convention defines and guarantees consular rights, privileges, and duties. Article 5 of the Convention lists a number of consular functions. These cover a wide variety of responsibilities, including: furthering the development of commercial, economic, cultural, and scientific relations between the sending state and the receiving state; issuing passports and travel documents; serving as a notary and civil registrar; transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending state; and exercising rights of supervision and inspection of vessels and aircraft of the sending state.(29) One of the most important responsibilities of the consul is to protect the nationals of the sending state. Article 5(e) provides that consular functions include "helping and assisting nationals, both individuals and bodies corporate, of the sending State."(30)

   The Vienna Convention recognizes that communication is essential for facilitating the exercise of consular functions relating to nationals of the sending state. Article 36(1)(a) provides that consular officials shall be free to communicate with, and have access to, nationals of the sending state.(31) Similarly, nationals of the sending state shall have the same freedom with respect to...