Individual Consular Rights: Foreign Law and Practice

Updated: June, 2015


Overview
 

            In a 2006 brief filed with the U.S. Supreme Court, the United States reasserted its current litigating position that Article 36 of the Vienna Convention on Consular Relations (VCCR) “does not confer individually enforceable rights” and that “the implementation of Article 36...abroad belies an individual-rights interpretation.”[1]
 

In reality, more than 60 parties to the treaty recognize that article 36 of the VCCR confers specific legal rights on individual foreign detainees; many countries require advisement of those individual rights simultaneously with other legal safeguards such as the right to an attorney.  Official sources (including the United States’ own submissions to the International Court of Justice) confirm that the implementation of individual consular rights under Article 36 is both long-established and widespread. Furthermore, courts in other countries, including those with common-law judicial systems similar to the United States, have recognized that judicial remedies are available for violations of these individual consular rights. Finally, no party to the VCCR has formally supported the U.S. interpretation of the treaty or filed any reservations to its ratification of the treaty that support the U.S. interpretation of Article 36 rights.
 

The U.S. Supreme Court has long recognized that, when construing a multilateral treaty, the interpretations of its terms by other treaty parties must be accorded “considerable weight.” Air France v. Saks, 470 U. S. 392, 404 (1985); see also Olympic Airlines v. Husain, 540 U.S. 644 (2004) (Scalia, J., dissenting) (“We can, and should, look to decisions of other signatories when we interpret treaty provisions. Foreign constructions are evidence of the original shared understanding of the contracting parties.”).
 

In addition, the U.S. position squarely contradicts the binding determination of the International Court of Justice in LaGrand and Avena, holdings that the Supreme Court had previously recognized should be given “respectful consideration” as “the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such”. Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam).

 
 

Legal Positions of 60 Foreign Governments Before the U.S. Supreme Court
 

            The most obvious indicators of international disagreement with the U.S. position are the legal submissions made to the U.S. Supreme Court by 60 nations that are parties to the VCCR.  In 2004, the Member States of the Council of Europe (comprising 45 nations) joined in an amicus curiae brief to the Court in the case of  Medellin v. Dretke, stating their position that “Article 36 confers legally-enforceable rights” on individuals and that “judicial review of conviction and sentence is required if Article 36 is violated.” [2]  In that same case, 13 Latin American nations submitted a brief arguing that the United States must comply fully with the ICJ finding of individually-enforceable rights under Article 36 and that U.S. authorities must “furnish a legal remedy” for its violation. [3] Canada and Mexico have taken the same position in their own briefs to the Court. [4]  Notably, no party to the VCCR has submitted a brief to the Court in support of the U.S. position to the contrary.
 

 

Foreign court decisions recognizing individual Article 36 rights and remedies

 

Germany

 

            A recent unanimous decision by the Federal Constitutional Court (Bundesverfassungsgericht) held that German courts must follow the ICJ findings in LaGrand and Avena that Article 36 confers individual and judicially-enforceable rights on foreign detainees.  Within the ICJ's sphere of competence, its compulsory judgments are found by the Court to be persuasive even in cases where Germany was not a party.  Article 36 itself has been confirmed to be directly applicable in the domestic legal order as treaty law on par with a federal law (Article 59, para. 2 of the German Basic Law).  The decision sends the underlying criminal appeals back to the federal Supreme Court (Bundesgerichtshof) because its former rulings on the claim did not show the required respect for the ICJ judgments. The Constitutional Court did not decide whether the convictions in question were based on the violation of Article 36 rights, which would be for the ordinary criminal courts to determine. Notably, the constitutional violation found by the Court is the right to a fair trial.

 

The Constitutional Court decision thus directly conflicts with the opinion of the U.S. Supreme Court in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006)(finding that the ICJ interpretation of Article 36 rights is not binding on the domestic courts).  Significantly, the Constitutional Court cites Sanchez-Llamas and then reaches the opposite conclusion.  To the extent that Sanchez-Llamas rests “[i]n particular” on the assumption that “there is little indication that other parties to the Convention have interpreted Article 36 to require a judicial remedy in the context of criminal prosecutions” and on "the contemporary practice of other signatories", see id. at 2680 and 2685, its findings are now factually inaccurate. 

 

The informal case citation is: BVerfG, 2 BvR 2115/01 vom 19.9.2006, Absatz-Nr. (1 - 77); the full opinion in German is posted at:

http://www.bundesverfassungsgericht.de/entscheidungen/rk20060919_2bvr211501.html

 

The decision is also discussed in the American Journal of International Law, Vol. 101 No. 3 (July 2007), at pp. 627-35.

 

Mexico

The Supreme Court of Mexico recognized in its 2013 Cassez decision that a violation of Article 36 obligations implicates due process and is a factor to be considered in determining if a defendant’s fair trial rights were breached.

 

The Court found it “unquestionable that the right of foreign nationals to consular notification, contact and assistance is a fundamental right in force in our country.” Based on serious irregularities in the police investigation of the case (including an Article 36 violation), the Court ordered the French petitioner’s immediate release.  The Court "believes that in the specific circumstances of this case, the violations of the fundamental rights to consular notice, contact and assistance, to be placed at the immediate disposition of the Ministerio Público and of the presumption of innocence--in the terms set forth herein--permeated throughout the process, to produce a corrupting effect so serious that it undoubtedly affected the performance of the fundamental right of due process by the responsible authorities."

 

AMPARO DIRECTO EN REVISIÓN 517/2011. QUEJOSA: FLORENCE MARIE LOUISE CASSEZ CREPIN, p. 157.

 

(Available in Spanish via: http://goo.gl/IT7w9f)

 

In a subsequent bulletin discussing its application of due process and fundamental rights in three recent cases (including the Cassez case), the Supreme Court of Mexico provided this list of fundamental rights that "constitute a limit on state action":

"The right to equality, liberty, the presumption of innocence, due process, to have a certified translator and interpreter, and, in the case of foreigners, to have the right that the consulate of their country be notified of their detention."

 

¿Qué entendemos por derechos fundamentales?, at http://viewonline.fromdoppler.com/otuf/gyctsF/c/a/a



 

State practice, according to the State Department’s submissions to the ICJ
 

            According to the State Department’s own submissions to the ICJ in the Avena case [5], a number of other Western democracies:
 

--suspend interrogations pending consular notification, or
 

--advise foreign detainees of their consular rights upon detention, simultaneously with their other legal rights and prior to questioning.
 

“In Australia and New Zealand, our Embassies report, law enforcement officials in practice stop interrogation if the individual asks for legal representation or to consult with the consulate.”
 

A U.S. citizen detained in Denmark “will be informed of his rights to remain silent and to contact his consulate; if the detainee at this point does not wish the interrogation to continue it will be stopped until consular notification is provided.”

 

In Mexico “once Mexican law enforcement officers are aware that a detainee is a U.S. national, they often inform the detainee of his or her rights...law enforcement officials in the Tijuana and Nogales consular districts apparently will usually stop interrogations when a request for consular notification is made”.

In the United Kingdom, notification of the consulate “is given within a few hours”; courts in the UK have “excluded incriminating statements made by foreign nationals from use at trial” where consular information rights were not observed.

 

           In other democracies, foreign detainees are “routinely informed” of their consular rights prior to questioning:
 

“Our posts in Iceland, Ireland and Kenya report that...U.S. citizen detainees are routinely informed [of consular rights] in practice prior to being interrogated.”
 

In South Korea, “before interrogation, the suspect signs a written statement if he or she does not want the consulate to be contacted.”
 

In Turkey, a “form provided upon detention tells the detainee he or she may contact a relative or ‘a person [the detainee has] established’ and the relative or the ‘Embassy/Consulate’ will be urgently informed.”
 

In Spain, a “Notice of rights form is provided at time of detention which includes the right of a foreign detainee to inform his or her consular officer or embassy of the detention.” Spanish officials “typically notify United States consular officers upon the detention of a U.S. citizen, even before the U.S. citizen is advised of his or her consular notification rights.”
 

In Brazil, “consular notification is considered one of the ‘rights’ under Article 5, LXIII of the Brazilian Constitution, which provides that: ‘the arrested person will be informed of her rights, among them, the right to remain silent, the right to have legal and familiar assistance...”.
 

 

Other state practice sources
 

            According to their official compliance reports submitted to the UN Committee Against Torture, [6] other countries also provide an advisement of consular rights upon detention and simultaneously with other legal rights.
 

For example, Latvia  reported that: “Every foreigner who has been detained, including persons detained on the State border for more than three hours, is given the opportunity to contact the embassy of his/her country by telephone.”  Estonia stated that “Upon detention the person will be informed of the right to contact consular representation.”

 

In Bahrain, “if the arrested person is a foreigner, he has the right to communicate with his country’s embassy or embassy representative at the time of his arrest.... [and] the right not to talk about the charge without a lawyer being present....These rights are spelt out in the arrest form ”.

 

In Switzerland and Guatemala, detainees are provided with forms advising them of their right to counsel and their right to consular notification.
 

The criminal procedure codes of Poland, Indonesia, Ecuador, Australia, the UK and Lithuania require advising foreign detainees of their consular rights simultaneously with other legal rights.

 

Directive 2012/13/EU (22 May 2012) of the European Parliament on the right to information in criminal proceedings obligates EU member States to advise foreign detainees of the right to have consular authorities informed (Article 4(2)(b)) and to ensure a defendant’s right to challenge a non-notification of consular rights (Article 8(2)).


 

 

Foreign statutes implementing individual consular rights prior to interrogation
 

            Few nations outside of the USA recognize the doctrine of “self-executing treaties” (i.e., the American legal concept that designated treaties gain the force of law without implementing legislation). Where a ratified treaty requires amendments to domestic law or practice, those provisions are typically incorporated into the domestic law of other nations through separate enabling legislation.  It is the statute implementing the treaty rather than the treaty proper that courts in those countries would normally look to when determining if individual rights and remedies are at stake. 


Some domestic courts have misunderstood this crucial distinction and have made much of the incidental fact that the courts of most VCCR parties could not entertain a claim based directly on the treaty itself, as evidence that the VCCR is not interprted by its other parties as conferring individual rights. Far more relevant to this determination is the fact that other nations sharing the U.S. common law tradition (but not the self-executing treaty doctrine) have adopted implementing statutes expressly based on their understanding of Article 36 requirements. The courts of those nations have then recognized and remedied violations of the individual legal rights conferred by the treaty, as given effect by the implementing statutes.
 

Australia
 

            Australian law requires advisement of consular rights prior to interrogation and affords a reasonable time for the consulate to respond to notification before questioning can begin.  Federal law (the Crimes Act (1914), section 23P) and the laws of three states (New South Wales, Queensland and Victoria) all require police to provide foreign nationals with “reasonable facilities” to communicate with their consulate and to defer questioning for a reasonable time until contact has taken place.
 

These provisions are based expressly on Australia’s understanding of Article 36 requirements. Australian codification of the right to consular information and notification “derives from Article 36 of the Vienna Convention on Consular Relations”, according to the Gibbs Committee Review of Australian Criminal Law report of 1991. The findings of the Gibbs Committee are the basis for the incorporation of all legal cautions into Australian arrest procedures.
 
 

United Kingdom
 

British law requires advisement of consular rights simultaneously with other legal rights and prior to interrogation. Section 3, Code of Practice C, Police and Criminal Evidence Act (1984) requires that all detainees be informed of the right to consult with an attorney and cautioned about the right to remain silent before any questioning and, if they are a foreign national, be advised of their consular communication rights.
 

These requirements clearly reflect the United Kingdom’s understanding of its Article 36 obligations. Closely paralleling the language of the VCCR, Paragraph 7.1 of Code of Practice C requires that the detainee “must be informed as soon as practicable of their right to consular communication” and “their right, upon request, to have their...Consulate told of their whereabouts and the grounds for their detention.”  Paragraph 7.3 of the Code states that “Consular officers may visit one of their nationals in police detention to talk to them and, if required, to arrange for legal advice.” These requirements are based on "the provisions of consular conventions" and a "record shall be made when a detainee is informed of their rights under this section." Id. paras 7.4, 7.5. Finally, in keeping with the Article 36(2) requirement that local laws and regulations must give “full effect” to these rights, the Notes for Guidance for these instructions state that: “The exercise of the rights in this section may not be interfered with,” even if the circumstances of the case fall within a legal exception that allows the authorities to delay the detainee’s right of access to an attorney.

 

 

Ireland
 

            Irish law requires that detained foreign nationals be advised without delay of their right to consular notification and contact, simultaneously with other safeguards such as the right of access to an attorney prior to questioning.  See Criminal Justice Act, 1984 (Treatment Of Persons In Custody In Garda Síochána Stations) Regulations 1987 – Regulation 14. [7]  The language of the advisement is identical to the provisions of Article 36.
 

Responding to a European Union questionnaire on legal rights provisions, the Irish government noted:
 

“...certain information which must be given to suspects is set out either in legislation or in the custody regulations which govern the treatment of persons in Garda custody. This information is in fact given to suspects in the Garda station in written form by means of a form known as the C72 which sets out the rights of the detained person such as access to a solicitor, to medical advice, to consular assistance, to visits and to give notification of the person’s detention to a person named by them....One would expect a suspect to be informed of his or her rights when they first become at risk. Relevant information should be given to the person at least when the person is in custody.” [8]

 

 

New Zealand
 

            The police advisement of rights to persons in custody required for consistency with the New Zealand Bill of Rights Act 1990 (BORA) reads in part:
 

“NOTICE TO PERSON IN CUSTODY
 

As an accused person you are entitled to communicate without delay with, and be visited by, a solicitor of your choice.


If you are an accused person on overnight arrest you are also entitled to communicate with and be visited by
your family or a friend; if no family is available, a medical practitioner, minister of religion, and if you are an alien, by your diplomatic or consular representative.”
 
Appended in Minister of Immigration & Anor v Udompun [2005] NZCA 128 (26 May 2005) (emphasis added). See also id. at 13 (citing testimony that “embassies are normally available for assistance for their [detained] citizens 24 hours a day seven days a week”).

 

 

France


          Responding to a European Union questionnaire on legal rights provisions, the Documentation and Research Division of the French Court of Cassation noted that:

 

“The need for states to protect the universally recognized fundamental rights with regard to migrants, by providing them with particular assistance and protection in order to guarantee them the rights established in the Vienna Convention, in particular the right to be informed of the consular assistance available from their country of origin, has been evoked by the United Nations General Assembly. . . . Article 36 of the Vienna Convention establishes a genuine human right, in that a person, as proven by the ICJ in the LaGrand case, is not simply the subject of consular protection, but takes part in it as a subject of law, in that he can refuse that protection.”

 

A series of circulars from the French Ministry of Justice give domestic effect to these rights by placing a “general obligation on the head of the penal establishment to inform the foreign detainee, as soon as he is detained, of the possibility of informing his consul that he has been imprisoned, to ask for a visit from him and to correspond with him.” In the absence of a bilateral treaty requiring other methods, notification of the consulate is “subject to the authorization of the accused person according to the Vienna Convention”. [8A]

 

 

South Korea

           Under Article 6 of the Constitution of South Korea, treaties “duly concluded and promulgated. . . have the same effect as the domestic laws of the Republic of Korea” and the “status of foreigners is guaranteed as prescribed by international law and treaties.”  Guidelines for the Ministry of Justice of the Republic of Korea (BOP KOMI No. 01129-299), entitled “Directives for the Investigation of Crimes Committed by Foreigners” (30 April 1993), stipulate the following:

"(a) When investigative agencies arrest or detain a foreigner, they shall immediately inform him that he is entitled to freely interview and communicate with consular or honorary consular officers of his home State stationed in the Republic of Korea, and that at his request, the consular officers or the honorary consular officers shall be immediately notified of his arrest or detention;

(b) In addition, if the person arrested or detained so requests, the investigative agencies shall send a communiqué containing the detainee's personal data and the particulars of his case, including his commission of a crime, the date and location of his arrest or detention, his current location, etc. to the head of honorary head of the consular post."

As the State Department recognized in its submission to the ICJ regarding State practice, the intent of these guidelines is to ensure that foreign detainees are advised of their consular rights and sign a form indicating their wishes as to consular notification before any custodial interrogation takes place.

 

 

Foreign court decisions requiring individual remedies


            Courts in Australia and the United Kingdom have construed the implementing language discussed above as requiring the suppression of statements or exclusion of evidence where their terms were not complied with and there was a minimal showing that the breach was prejudicial to the defendant.  Neither country’s implementing statute requires a judicial remedy; courts have instead fashioned appropriate remedies from their common-law authority to exclude evidence in the interests of justice. 
 

The United States’ argument that these lower court rulings should be given no precedential weight is very doubtful. First, no court in either country has construed these statutory obligations to the contrary in any case. [9] Second, in no case did the prosecution appeal the ruling granting suppression on these grounds, indicating that there is no legal dispute over the correctness of these holdings. Third, authoritative legal texts in both countries affirm the binding legal obligation to advise foreign detainees of these individual treaty rights. [10] Finally, there are no essential factual or legal distinctions between these cases and those of foreign nationals arrested and prosecuted in the United States.

The analytical approach adopted by the courts in both countries is consistent with the requirements for addressing U.S. consular rights violations outlined by the International Court of Justice.  See Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ 128 (March 31, 2004), at para. 127 (the question of the exclusion of evidence for a violation of the defendant's consular rights “is one which has to be examined under the concrete circumstances of each case by the United States courts.”).

 

Australia
 

            Courts in Australia have applied suppression in cases where police did not comply with consular rights obligations, also holding that this breach of legal rights alone is sufficient to warrant exclusionary remedies:
 

See Tan Seng Kiah v R [2000] 10 NTLR 128 (Northern Territories Court of Criminal Appeals) (suppressing statement where, inter alia, consulate was not notified at the detainee’s request). Reviewing the factual record, the Court noted:

 

“The right to communicate with or to attempt to communicate with the consular office is contained in s 23P of the Crimes Act. There is an obligation imposed upon the investigating official to give the person arrested reasonable facilities to communicate with the consular office. In this case nothing was done.”

 

The court found that the police took no steps to contact the consulate, made only desultory efforts to secure counsel and sought no extension of time for the custodial investigation period:
 

“Had the investigating authorities undertaken any one of those steps the applicant is likely to have obtained advice and it may well have been the case that the applicant would have declined to be interviewed or the interview and the resulting record would have assumed a different form.”
 

See also Foo v The Queen [2001] NTCCA 2 (finding no violation of Section 23P and therefore no grounds to suppress the statement). Although the court here found no violation of consular rights, it reaffirmed the prior holding in Tan Seng Kiah that breaches of Section 23P standing alone are subject to suppression or exclusion.
 
            Australian courts have also recognized that the advisement of consular rights must occur prior to custodial interrogation of a known non-citizen, or suppression may be required.

 

See R. v. Tan [2001] WASC 275 (5 October 2001) (Supreme Court of Western Australia):

  

In this drug smuggling case, the Court excluded evidence obtained by the Australian Federal Police during a search of the suspect’s room, for failure to advise the foreign national of his statutory rights (including the right to consular communication prior to any questioning taking place). In determining that the violations of rights were so prejudicial as to require exclusion of evidence, the Court noted (at 58) that:

  

“The evidence establishes that the AFP conduct involved a deliberate disregard of the applicant's statutory rights. This involved relevant unfairness to the applicant. The following extract from R v Su [1997] 1 VR 1 (at 55) captures the applicant's situation:

  

‘Stripped to its essentials, the case is one in which a foreign national, who, so far as the evidence went, had no familiarity at all with Australian police procedures, and whom the interviewing police officer believed had committed a very serious offence, was interviewed without being given a proper caution and without being informed of his rights. We consider that to tender that statement against him is unfair.’”
 

See also R v Su [1997] 1 VR 1 (Supreme Court of Victoria), at 114:
 

After suppressing the foreign defendant’s first statement for failure to advise him of any of his legal rights, the court observed that the defendant was cautioned and informed of his rights prior to the second interview, also noting that: “Before the police began this [second] interview they permitted [the defendant] to see a Japanese consular official. Thus no question of any contravention of s23P of the Crimes Act arises.”  In context, it is clear that the reviewing court was prepared to suppress the second custodial statement on section 23P grounds if the consular notification requirement had not been met.

 

            Australian courts have further held that access to consular contact prior to interrogation is an essential right, for which the provision of access to counsel or an interpreter is no substitute:
 

“Contacting the consular office by a detained foreign national provides an opportunity to. . . seek advice and assistance. . . One need only contemplate the predicament of an Australian national held in custody in a foreign non-English speaking country without access to an Australian consular office to appreciate the importance of the right . . . .The right to consult a legal practitioner or. . . the right to contact the consular office. . .are rights independent of the right of access to an interpreter. They are rights available to be enjoyed ‘as soon as practicable’.”
 

Tan Seng Kiah, [2002] NTCCA 1 at 49, 51.

 

            A request for consular notification must be acted on immediately; even if the detainee subsequently withdraws that request, the breach of consular notification requirements must still be addressed by the courts:

 

“For a period of approximately 24 hours the request existed and was not acted upon. A statutory obligation was imposed upon the police and they failed to comply with that obligation. The fact that the applicant subsequently withdrew his request does not diminish the seriousness of the failure during the period the request was extant. In those circumstances there was a breach of the requirements of the Crimes Act. . . . it is clear that when a person is arrested and not dealt with in accordance with the law, the subsequent detention is unlawful and statements or admissions of the arrested person may be excluded in the exercise of a discretion.”

 

Id. at 53-55.
 
 

United Kingdom
 

            Courts in the United Kingdom have granted suppression on these grounds alone, even when the detainees were advised of and waived their right to counsel. Notably, the British implementing statute (para. 7.4 of PACE Code of Conduct C) does not state a time frame in which notification must take place, expressly require that interrogations be suspended pending consular notification, or specify a remedy for its violation.
 

R. v. Bassil and Mouffareg (1990) 28 July, Acton Crown Court, HHJ Sich (reported in Legal Action, December 1990, at page 21):
 

“Each [defendant] signed the custody record to indicate that they did not require a solicitor. Both defendants were interviewed at length in the absence of a solicitor and made substantial admissions. However, there was a lingering doubt about whether the defendants had understood their rights, in particular the right of silence and the right to an independent solicitor. If para. 7.4 had been complied with, a French or Arabic speaking official would have visited the defendants in the police station at short notice. Such a person would have helped them to reach an informed decision about their position, and might well have advised them to obtain the services of a solicitor and an interpreter before being interviewed. It followed that the breach of para.7.4 was substantial and significant and so the evidence of the interview should be excluded.”
 

R. v. Van Axel and Wezer (1991) 31 May, Snaresbrook Crown Court, HHJ Sich (reported in Legal Action, September 1991, at page 12):
 

“[The trial judge] said that the situation could vary enormously, from foreign nationals who had been resident in the UK for many years, to those who spoke no English and were here for the first time, but in all cases ‘compliance was extremely important’....[The judge] had some disquiet about whether they understood their rights, both because Ms Van Axel had asked what a solicitor was and because they had been given out-of-date rights in Dutch.  He held that it was at least possible that, if contact with the embassy had been made, the defendants would have been advised to ask for a solicitor who spoke Dutch.”
 

Canada

            The Federal Court of Canada has recognized that Article 36 confers individual legal rights on Canadian nationals that they may rely on in domestic judicial proceedings:
 

“Statutes should be construed to comply with Canada’s international obligations....Specifically, the International Court of Justice's decision in LaGrand...states that the VCCR does create individual rights to the services requested by the Applicants in this case.”

Khadr v. Canada (Minister of Foreign Affairs)
, 2004 FC 1145, at paras. 26, 27.

 


 

Non-objections to Article 36 by ratifying States
 

            Under international law, a ratifying nation may attach limiting declarations or reservations to specific treaty provisions unless the reservation “is incompatible with the object and purpose of the treaty.” [11] According to the United Nations Treaty Collection, some of the169 parties to the VCCR have attached reservations to various provisions of the treaty. However, no party to the treaty has attached any reservations to Article 36 that would limit the scope or effect of its language conferring rights on individual detainees. [12]  More significantly still, this uniform pattern of non-objection has continued after the ICJ decisions in LaGrand and Avena holding that Article 36 confers specific rights on individuals, violations of which are subject to domestic legal remedies. Ratifications of the VCCR postdating the ICJ decision in Avena (Cambodia, Monaco and Singapore) have attached no reservations to full acceptance of Article 36.

 

Subsequent treaties regarding consular notification procedures


    In the three decades since the adoption of the VCCR in 1963, at least ten multilateral treaties have been approved that contain provisions requiring consular notification in the cases of foreign detainees.  Each without exception enshrines the individual right of those detainees to consular information and communication, often incorporating the language of VCCR Article 36 verbatim.   For example, article 16 of the UN Convention on the Protection of the Rights of All Migrant Workers and the Members of Their Families (1990) states:


7. When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner:

 

    (a) The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor;

 

    (b) The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right to receive communications sent by the said authorities without delay;

 

    (c) The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation.


If there was any serious objection within the international community to an understanding that Article 36 was intended to confer private and enforceable rights on individuals, it is virtually certain that these subsequent treaties would not contain identical and unqualified rights-conferring language.

 

Conclusion


            The weight of international authority from numerous independent sources thus clearly supports the recent findings of many domestic courts that Article 36 confers rights on individual foreign nationals. [13] Those findings are consistent with two centuries of Supreme Court jurisprudence affirming that rights conferred under self-executing treaties will be enforced by the domestic courts, and that any ambiguity in the treaty provision must be construed so as to give full effect to individual rights. [14]

 

While the executive’s interpretation of a treaty is accorded “much weight,” it is “not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights.”  Charlton v. Kelly, 229 U.S. 447, 468 (1913).  Examples abound in which the Supreme Court rejected the government’s restrictive interpretation of treaty obligations and upheld the treaty-based rights of individual litigants.[15]  The plain language and purpose of Article 36, coupled with its widespread interpretation by other treaty parties, squarely contradicts a limiting reading of the rights that it confers on foreign detainees.

 

 

ENDNOTES

 
[1] See Brief for the United States Supporting Respondents, Bustillo v. Johnson and Sanchez-Llamas v. Oregon (Nos. 05-51 and 04-1056) (January 2006), available at http://www.debevoise.com/publications/pdf/USBustilloAmicusfinal.pdf

 

[2] Brief of Amici Curiae the European Union and Members of the International Community in Support of Petitioner, Medellin v. Dretke, 125 S.Ct. 2088 (Oct. 20, 2004), available at

 http://www.debevoise.com/publications/pdf/dpny-21879793-v1-EU%20Merits%20Brief.PDF

 

[3] Brief of Foreign Sovereigns as Amici Curiae in Support of Petitioner, Medellin v. Dretke, 125 S.Ct. 2088 (Oct. 20, 2004), available at

http://www.debevoise.com/publications/pdf/Brief%20amicus%20curiae%20of%20Foreign%20Sovereigns%20merits_v1.PDF

 
[4]  See Brief Amicus Curiae of the United Mexican States in Support of Petitioner, Medellin v. Dretke, 125 S.Ct. 2088 (Oct. 20, 2004), available at
http://www.debevoise.com/publications/pdf/dpny-21879786-v1-Mexico%20Amicus%20Brief.PDF 

See also Brief Amicus Curiae of Canada in Support of Petition for Writ of Certiorari, Faulder v. Johnson (No. 98-7001) (November 25, 1998) (arguing that Article 36 confers individual legal rights and that application of state rules of procedural default to an individual claim conflicts with the “full effect” requirement of Article 36(2)).

 

[5] Annex 4 to the U.S. Counter-Memorial (Declaration of Ambassador Maura A. Harty Concerning State Practice in Implementing Article 36(1) of the Vienna Convention on Consular Relations). Available at:

http://www.cesarfierro.info/Harty.PDF
 

 

[6] State parties to CAT are required to submit periodic reports on their compliance with its provisions, including the obligation under article 6(3) that a foreigner facing torture charges shall be “assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national.” The State Party Reports submitted to the Committee are available at  http://www.unhchr.ch/tbs/doc.nsf
 
 

[7] The full text of the Irish legal advisement is available at http://www.irishstatutebook.ie/ZZSI119Y1987.html#ZZSI119Y1987A8


 

[8] See Question 28, Green Paper on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union: Response of the Minister for Justice, Equality and Law Reform, Ireland, at http://europa.eu.int/comm/justice_home/fsj/criminal/procedural/responses/28.pdf

 

[8A] Full document available at:

http://ec.europa.eu/justice_home/fsj/criminal/procedural/responses/cour_de_cassation_tra_en.pdf

 

[9]  The United States’ citation of an earlier Australian case as indicating that Article 36 does not confer individual rights is incorrect.  R. v. Abbrederis predates the amendments to the Crimes Act implementing Article 36 rights, and involved routine questioning by customs agents of an individual entering Australia—not the interrogation of a criminal suspect already in custody.  A thorough search of Australian case law (March 21, 2006) by the author via Lexis discovered no cases construing the Australian implementing statutes other than as indicated.
 

[10] See, e.g., Halsbury's Laws of Australia, at [80-1020], n. 4 (“A person under arrest who is not an Australian citizen has rights to communicate with the relevant consular office”);  Halsbury’s Laws of England, sec. 728 (detained foreign national “must be informed as soon as practicable of his right to communicate with his consul if he so wishes. He must also be informed that the police will notify his consul of his arrest if he wishes.”). See also Carter’s Criminal Law of Queensland, Part V, Division 1, Questioning Relevant Persons About Indictable Offences, at 40(3) (requiring police officers to advise detained foreign nationals that: “Before I ask you any questions I must tell you that you have the right to telephone, or attempt to telephone, the embassy or consular office of the country of which you are a citizen. Do you want to telephone your embassy or consular office?”).

 
 

[11] Vienna Convention on the Law of Treaties (1980), art. 19 (c), 1155 U.N.T.S. 331.

 
 

[12] In fact, only one VCCR party has attached any form of reservation to Article 36, and it applies only to the visitation rights conferred on consular officers. Qatar has declared that “The rights accorded in this article shall not extend to those consular employees who are engaged in administrative tasks or to the members of their families.” In other words, only an accredited consular officer may exercise the right to consular contact and visits.

 

[13] See, e.g., Jogi v. Voges, 425 F.3d 367, 382 (7th Cir. 2005); United States  v. Rangel‑Gonzales, 617 F.2d 529, 532 (9th Cir. 1980);  Hernandez v. U.S., 280 F.Supp.2d 118, 124 (S.D.N.Y. 2003); United States ex rel. Madej v. Schomig, 223 F. Supp. 2d 968, 979 (N.D. Ill. 2002);  People v. Preciado-Flores, 66 P.3d 155, 161 (Colo. App. 2002);  Madej v. Schomig, No. 98-C-1866, 2002 WL 31386480, at *1 (N.D. Ill. Oct. 22, 2002); Standt v. City of New York, 153 F. Supp. 2d 417, 427 (S.D.N.Y. 2001); U.S. v. Superville, 40 F.Supp.2d 672, 678 (D.V. I. 1999); United States v. Alvarado-Torres, 45 F. Supp. 2d 986, 989 (S.D. Cal. 1999); United States v. Chaparro-Alcantara, 37 F. Supp. 2d 1122, 1125 (C.D. Ill. 1999); U.S. v. Briscoe, 69 F.Supp.2d 738, 747 (D.V.I. 1999); United States v. Torres-Del Muro, 58 F.Supp.2d 931, 932-33 (C.D.Ill.1999); United States v. Hongla-Yamche, 55 F.Supp.2d 74, 77-78 (D.Mass.1999); U.S. v. Rodrigues, 68 F.Supp.2d 178, 183 (E.D.N.Y.1999); United States v. $69,530.00 in United States Currency, 22 F.Supp.2d 593, 594 (W.D.Tex.1998); Torres v. State, 120 P.3d 1184 (Okla.Crim.App.2005); State v. Miranda, 622 N.W.2d 353 (Minn. App. 2001); State v. Reyes, 740 A.2d 7 (Del. 1999); see also Medellin v. Dretke, 125 S.Ct. 2088, 2103-2104 (O’Connor, J., dissenting); Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring); United States v. Li, 206 F.3d 56, 71 (1st Cir. 2000) (Torruella, C.J., concurring in part; dissenting in part); People v. Madej, 739 N.E.2d 423, 431 (Ill. 2000) (McMorrow  J., concurring in part and dissenting in part).

 

 

[14]  See, e.g., Ware v. Hylton, 3 Dall. 199 (1796); United States v. Schooner Peggy, 1 Cranch 103 (1801) (Marshall, C.J.); Hopkirk v. Bell, 7 U.S. 454 (1806); Owings v. Norwood’s Lessee, 9 U.S. (5 Cranch) 344 (1809)(Marshall, C.J.); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1813); Chirac v. Chirac’s Lessee, 15 U.S. (2 Wheat.) 259 (1817); Shanks v. Dupont, 28 U.S. 242, 249 (1830); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561-62 (1832); Perchemann v. United States, 32 U.S. (7 Pet.) 51 (1833); Hauenstein v. Lynham, 100 U.S. 483, 490 (1879); Head Money Cases (Edye v. Robertson), 112 U.S. 580, 598-99 (1884); Chew Heong v. United States, 112 U.S. 536 (1884); United States v. Rauscher, 119 U.S. 407 (1886); DeGeoffrey v. Riggs, 133 U.S. 258, 271 (1890);  Jones v. Meahan, 175 U.S. 1, 32 (1899); Johnson v. Browne, 205 U.S. 309, 320-22 (1907); Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268, 272-73 (1909); United States v. Payne, 264 U.S. 446, 449 (1924); Asakura v. Seattle, 265 U. S. 332 (1924); Cheung Sum Shee v. Nagle, 268 U.S. 336 (1925); Santovincenzo v. Egan, 284 U.S. 30 (1931); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10-11 (1936); Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 163 (1940); Hines v. Davidowitz, 312 U.S. 52, 62-63 (1941); Clark v. Allen, 331 U.S. 503 (1947); Kolovrat v. Oregon, 366 U.S. 187 (1961);  Antoine v. Washington, 420 U.S. 194 (1975); United States v. Stuart, 489 U.S. 353, 368 (1989). See also Sumitomo Shoji Am. v. Avagliano, 457 U.S. 176, 185 n.13, 186 n.14 (1982) (listing examples of treaties protecting foreign citizens’ rights beginning with 1778 treaty between United States and France); The Bello Corrunes, 19 U.S. 152, 168 (1821) (“The long and universal usage of the Courts of the United States has sanctioned the exercise of this right” of consular assistance).

 

[15] See, e.g., Chew Heong v. United States, 112 U.S. 536 (1884); United States v. Rauscher, 119 U.S. 407 (1886); De Lima v. Bidwell, 182 U.S. 1, 181, 194-199 (1901); Johnson v. Browne, 205 U.S. 309, 319-321 (1907); United States v. Payne, 264 U.S. 446 (1924); Cheung Sum Shee v. Nagle, 268 U.S. 336 (1925); Cook v. United States, 288 U.S. 102, 120 (1933); Perkins v. Elg, 307 U.S. 325, 328, 337-342 (1939); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 136 (1989) (Brennan, J., concurring in judgment) (observing that the Court was rejecting a view of the Warsaw Convention that had consistently been adopted by the Executive Branch and had been pressed by the United States in that case); see also The Bello Corrunes, 19 U.S. 152 (1821) (disagreeing with government and recognizing standing of consuls to assist and represent interests of nationals); United States v. The Schooner Amistad, 40 U.S. 518, 594-596 (1841) (rejecting executive interpretation that individuals abducted into slavery constitute recoverable property falling within the scope of a treaty provision).