The Supreme Court Decides a Consular Convention Case
On June 28, 2006, the U.S. Supreme Court issued its decision in two consolidated cases involving foreign nationals who had been arrested by state officers, one in Oregon and the other in Virginia, without being given the notification required by Article 36 of the Vienna Convention on Consular Relations that they had a right to contact the consular posts of their respective countries.[1] In the Oregon proceedings, the foreign defendant had made self-incriminating statements to the police; his counsel argued at trial and on appeal that because he had not been advised of his right to contact the consulate, the incriminating statements should be suppressed (should not be admitted in evidence). The Oregon courts rejected that argument. In the Virginia proceedings, the foreign defendant did not raise the Consular Convention issue until after his conviction and sentence had been handed down and affirmed on appeal. At that point the Virginia courts held that under the state's "procedural default rule" it was too late to raise the issue. The U.S. Supreme Court affirmed the state court judgments in both cases.
The Supreme Court considered three questions: (1) Does Article 36 create rights that defendants may invoke in criminal proceedings (an issue in both cases)? (2) Does a violation of Article 36 require suppression of a defendant's statements to police (the issue in the Oregon case)? (3) May a state, in post-conviction proceedings, treat a defendant's Article 36 claim as defaulted because he failed to raise the claim at trial (the issue in the Virginia case)?
The majority's disposition of the second and third issues (against the petitioners) made it unnecessary to decide the first issue. In other words, the petitioners would lose even if - as they asserted - Article 36 creates rights on which they could rely. Thus the majority simply assumed, without deciding, that such rights exist. The issue, though, is an interesting and potentially significant one. Under Article VI of the U.S. Constitution, treaties of the United States are the supreme law of the land, but that does not necessarily mean that they grant enforceable rights to individuals in U.S. courts. Article 36 of the Consular Convention is couched in terms of rights of individuals, but there is also language in the Convention suggesting that it is meant simply to regulate consular relations among nation-states. The Supreme Court in a previous case said that the Convention "arguably confers on an individual the right to consular assistance following arrest,"[2] but that is as far as a majority in the Court has gone toward deciding the issue.[3]
Four Justices in the present case (Justices Breyer, Ginsburg, Stevens and Souter) would have squarely faced the first issue.[4] Justice Breyer's dissenting opinion includes a succinct explanation of the issue:
[I]t is common ground that the Convention is "self-executi[ng]." That is to say, the Convention "operates of itself without the aid of any legislative provision." The parties also agree that we need not decide whether the Convention creates a "private right of action," i.e., a private right that would allow an individual to bring a lawsuit for enforcement of the Convention or for damages based on its violation. Rather, the question here is whether the Convention provides, in [the present] cases, law applicable in legal proceedings that might have been brought irrespective of the Vienna Convention claim, here an ordinary criminal appeal and an ordinary postconviction proceeding.[5]
Justice Breyer and his three colleagues would have decided that question in the affirmative, based on the language and context of Article 36 and on the International Court of Justice's consistent interpretations of it.
On the second issue, the Supreme Court noted that the Convention does not itself mandate suppression of a defendant's statements as a remedy for a violation of Article 36. Suppression of evidence is a U.S. court-imposed remedy for certain violations of constitutional rights, such as unreasonable searches and seizures, or failures by police to give "Miranda" warnings before a suspect makes a self-incriminatory statement. The Court pointed out that other states parties to the Consular Convention do not authorize suppression of evidence as a remedy for violations of the Convention. The majority opinion also expressed doubt that violations of Article 36 would be likely to enable police to obtain evidence or statements that would not otherwise be obtained. No data was offered in support of that premise. Justice Breyer argued in dissent that the premise would not necessarily be valid in a case, for example, of a foreign national who speaks little English and who comes from a legal culture unlike that of the United States.
Although the Supreme Court held that a violation of Article 36 does not by itself require suppression of evidence, this would not completely preclude any effective remedy in future cases if it can be shown that a defendant was actually prejudiced by the failure to inform him or her of the right to contact the consulate. The Court noted that a defendant might be able to raise a claim of an Article 36 violation as part of a challenge to the voluntariness of his or her statement to the police. Another example, not mentioned by the Court, might be a showing in a particular case that the arrested person would have requested that the consular post be notified and that the consular officials would have been willing and able to uncover credible exculpatory evidence had they been notified promptly.[6] In such a case the defendant's attorney at trial might be able to obtain an adjournment in order to gather evidence, or if it is too late to gather relevant evidence, might even get the charges dismissed or convince a jury that there is reasonable doubt about guilt.
On the third issue, the Supreme Court held that a state court may apply the "procedural default rule" to preclude a defendant from raising the Consular Convention violation after having failed to do so at the trial or on direct appeal from the conviction. The majority stressed that Article 36(2) of the Convention calls for the rights in Article 36(1) to be "exercised in conformity with the laws and regulations of the receiving State." In Breard v. Greene, the Supreme Court had held that the procedural rules of the forum State (which would include the procedural default rule) govern the implementation of a treaty in that State. The majority in the present case upheld that rule, as applied by the courts in Virginia, even though the International Court of Justice in two previous cases had determined that application of the procedural default rule prevented "full effect [from being] given to the purposes for which the rights accorded under [Article 36] are intended" and thus violated the proviso in Article 36, paragraph 2.[8]
As the Supreme Court noted, ICJ judgments have no binding force except between the parties and in respect of that particular case.[9] Thus, said the Supreme Court, the two ICJ judgments are entitled only to "respectful consideration." Such consideration did not overcome the plain import of Article 36 as the Supreme Court had interpreted it in Breard v. Greene. According to the Supreme Court majority, the ICJ had overlooked the importance of procedural default rules in an adversary system, which relies chiefly on the parties to raise significant issues and present them to the court in a timely manner.
The Supreme Court could have decided the third issue on a narrower ground. Bustillo, the defendant in the Virginia case, conceded that his attorney was aware at the trial of his client's rights under the Vienna Convention. Justice Ginsburg, in her concurring opinion, pointed out that even under the ICJ's approach, the attorney's awareness at the time of trial could justify the state's refusal to allow the matter to be raised for the first time after the trial.[10] In a footnote, the Supreme Court majority briefly mentioned the attorney's awareness,[11] but the holding clearly did not turn on that fact. It amounts to a broad affirmation of a state's application of its procedural default rule in Consular Convention cases. Justice Breyer, speaking for himself and Justices Stevens and Souter, dissented from the majority's broad approach to this issue, arguing that the majority had been too inflexible regarding the varying facts of individual cases, and had not given sufficient respect to the ICJ judgments.
Justices Breyer, Stevens and Souter favored a reading of the Convention that would override a state's procedural default rule if the failure to inform the defendant of his or her rights caused the failure to raise the violation in a timely manner, and if the state's law provides no other procedure for review and reconsideration of the effect of the violation. They would have remanded these cases to the courts of Oregon and Virginia, respectively, to permit them to apply their procedural and remedial laws with the understanding that the Convention demands an effective remedy for an Article 36 violation.
The Court's holding does not mean that a state court or legislature must apply the procedural default rule to Consular Convention cases. Nor does it preclude a state from allowing post-conviction claims of ineffective assistance of counsel (which could involve a showing that counsel failed to recognize or raise the Consular Convention issue at trial). But it is not at all apparent from the majority opinion that the Supreme Court would overturn a state's disallowance of post-conviction claims of ineffective assistance of counsel in a Consular Convention case.
In the past, the Supreme Court has sometimes issued quite narrow decisions, limiting its holdings to the specific facts presented in the case. At other times it has issued sweeping decisions that seem intended to guide lower courts in cases that raise similar issues, but that could be distinguished on their facts from the case at hand. Its current decision on the Consular Convention falls into the latter category.
Frederic L. Kirgis, an ASIL member, is Law School Association Alumni Professor Emeritus at the Washington and Lee University School of Law. He has written books and articles on international law, and is an Honorary Editor of the American Journal of International Law. The author is grateful to David Martin for his helpful comments on a draft of this Insight. Any errors or omissions are the author's own.
Footnotes
[1] Sanchez-Llamas v. Oregon, 548 U.S. ____, 2006 WL 1749688. The Virginia case consolidated with the Oregon case was Bustillo v. Johnson, Docket no. 05-51. Article 36 of the Consular Convention provides in part, "1. With a view to facilitating the exercise of consular functions relating to nationals 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. ... 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."
[2] Breard v. Greene, 523 U.S. 371, 376 (1998)(per curiam).
[3] The Supreme Court has been reluctant to decide whether multilateral treaties supply rights that individuals may invoke in U.S. courts. In addition to Sanchez-Llamas and Breard, see Medellin v. Dretke, 544 U.S. 660, 665 (2005)(another case involving the Consular Convention), and Hamdan v. Rumsfeld, 548 U.S. , 2006 WL 1764793 (a case involving the1949 Geneva Conventions on the law of war).
[4] Although Justice Ginsburg agreed with dissenters Breyer, Stevens and Souter on this issue, she concurred in the judgment (though not with all the reasoning) of the Court on the other two issues.
[5] Justice Breyer's dissenting opinion, 548 U.S. at ____, 2006 WL 1749688, at star page 23 (citations omitted).
[6] This may actually have been the situation in Bustillo v. Johnson, but the defense counsel did not raise the issue at the trial or on direct appeal.
[7] Note 2 supra.
[8] See note 1 supra. The two ICJ cases are the LaGrand Case (Germany v. United States), para. 91, 2001 ICJ 466, 40 ILM 1069 (2001), and the Avena Case (Mexico v. United States), para. 113, 2004 ICJ ___, 43 ILM 581 (2004).
[9] ICJ Statute Art. 59.
[10] In the Avena Case, para. 113, note 8 supra, the ICJ put some emphasis on defense counsel's likely unawareness of a violation of Article 36 at the time of trial.
[11] Footnote 6 in the majority opinion.