The Vienna Convention and the Rights of Foreign Nationals to Contact their Consulate
[Guest post by DRJ]
I know next-to-nothing about this subject which is why I’m asking readers and commenters to help me understand this.
In April 2007, the Supreme Court granted cert in Medellin v. Texas in part to address the right of a foreign national under the Vienna Convention to seek consular assistance from his/her home country following arrest:
“The case involves the attempt by President Bush to have Texas state courts abide by a ruling of the World Court that the United States, and some of its states, have violated the Vienna Convention on the right of foreign nationals arrested and prosecuted for crime in the U.S. to meet with a diplomat from their home country.”
As far as I can tell, the Medellin case is still pending in the Supreme Court. That makes me wonder what effect this case has:
“The U.S. Supreme Court rejected an appeal from a 28-year-old Honduran man who is scheduled to be executed next week for the 2001 robbery and fatal shooting of a south Arlington clothing store manager. Heliberto Chi was sentenced to die Oct. 3 by lethal injection for robbing and killing Armand Paliotta, 56, at the K&G Men’s Superstore in southwest Arlington.
The nation’s highest court rejected claims by Chi’s court-appointed attorney, Wes Ball, that Chi was not allowed to contact his country’s consular as prescribed by the Vienna Convention on Consular Rights. That 1963 treaty was meant to allow foreigners who are arrested the right to speak with their consulates.
“Nobody told Mr. Chi he had a right to a consular official, and it was never brought to his attention,” Ball said.”
I can’t find the Chi opinion online yet so this issue may not be central to the Court’s ruling. There may also be prior decisions on this subject with which I’m not familiar.
Can anyone help me out?
— DRJ
I don’t know, but I think the Treaty is a good idea and the U.S. should respect it.
Christoph (92b8f7) — 9/25/2007 @ 3:59 pmI think we should respect it even if we think it’s a bad idea. Treaties, after all, are the law of the land.
The issue becomes: if we don’t respect it in a particular case — because, for example, the police have no idea that the suspect is a foreign national — then what’s the remedy? Voiding an otherwise valid conviction and/or sentence, in virtually all (if not all) cases, is wildly out of proportion to the harm caused.
Patterico (0612a3) — 9/25/2007 @ 4:13 pmHere’s the Fifth Circuit opinion in Chi. It may be that this case was decided on procedural default grounds following Sanchez-Llamas v. Oregon (S.Ct. 2006), and it doesn’t address the Vienna Convention issue.
DRJ (ec59b5) — 9/25/2007 @ 4:26 pmThe issue isn’t “if” the Vienna Convention is to be respected by US authorities, but “how.”
cboldt (3d73dd) — 9/25/2007 @ 4:31 pm.
And somewhat related to “how” is “when,” and “by whom.”
.
It would be interesting, and I have not researched this at all, to see how other countries handle similar situations, when a foreigner is charged with a local crime, but doesn’t contact his embassy. In many cases, when US citizens contact US embassies abroad, they don’t get any “relief” from the charge, they go through the legal process in the foreign land, up to and including capital punishment.
My concern was more basic: Is it possible the Chi decision resolves this issue? Looking at the Fifth Circuit decision (I can’t get the link past the spam filter), it’s possible this case was decided on procedural default grounds following Sanchez-Llamas v. Oregon (S.Ct. 2006) because Chi raised his Vienna Convention claim at trial but not on appeal. But it seems to me it’s also possible the Court addressed the merits of whether the Vienna Convention applies.
DRJ (ec59b5) — 9/25/2007 @ 4:37 pmSo, ask everyone who is arrested if they are a foreign national, and if so, for their passport and other documentation of entry. In any event allow them to have contact with the consular officials. But do not allow the fact that the officials are too busy (e.g. Mexico) to delay any proceedings.
I mean, if they have a Treaty Right, we need to respect that. So it MUST be procedure to identify the nationality of all arrestees. For their own good.
Kevin Murphy (805c5b) — 9/25/2007 @ 4:39 pmThis may be old news (Where was I in 2005?) because the US pulled out of the Vienna Convention Optional Protocols in 2005:
I don’t know what this did to pending cases like Medellin and Chi.
DRJ (ec59b5) — 9/25/2007 @ 4:53 pmAssuming someone receives assistance of counsel, why does it matter whether or not the state advises them of their right to contact consular officials?
SPQR (6c18fd) — 9/25/2007 @ 4:55 pmWhy exactly could it be a bad idea to allow a person accused of a crime in the United States to contact their government for consular assistance? What possible harm could come to the United States? Would you not want the ability to contact the U.S. embassy if you were accused of a crime in a signatory nation?
Indeed.
That’s a great question and one for the courts. I would say it would be different in a case where the suspect didn’t divulge he was a foreign national vs. one where he did. In the latter case, the U.S. has an obligation to follow the Treaty and the government (you or your federal counterpart) can expect a reversal or serious consequences for not following through with your Treaty obligation to the accused.
Harm to whom? And who decides this? The courts, one assumes. And it’s speculative — who is to say with vigorous consular assistance and advice the entire defense may not have been wildly different?
When a person is convicted of a serious crime and is denied assistance from their government through U.S. incompetence or worse, the courts should look in to that.
I’m all for punishing the guilty — less jails, more gaols. But before conviction, the government has to do things right.
How difficult is it to train people “Foreign national: advise/allow them to contact their government”?
And the consequence if convictions for truly guilty people were overturned would be felt in the other nations more than the U.S. I assume you would deport.
Christoph (92b8f7) — 9/25/2007 @ 5:33 pmThe Convention like most treaties is usually observed by countries where the law rules and ignored by nations (most of the world) where the rule of law is a facade. It requires that embassies be notified of the arrest or detention of foreign nationals. Most nations have security forces that couldn’t be bothered by this and with the best of will couldn’t comply. Mexico is an excellent example of a nation that routinely shakes down and jails Americans. In some areas where Americans are involved in illegal or questionable activities they simply disappear, whether victims of rivals or the security forces is open to question but in SW Mexico where drug activities are frequent an American turns up dead frequently.
In my opinion the Convention is a joke and bilateral treaties are far more useful than one which cannot be enforced.
Thomas Jackson (bf83e0) — 9/25/2007 @ 5:35 pmNaturally. Contacting your embassy doesn’t give you “relief” from capital offenses.
What it does is allow your government to provide assistance to you in whatever way it deems fit. Including recommending lawyers, mounting publicity campaigns, giving advice, whatever.
In most cases this won’t affect the outcome… but in some it will and it’s a foreign national’s right to contact their government. Quite a reasonable right I should think.
Christoph (92b8f7) — 9/25/2007 @ 5:36 pmBoo hoo. Sad for any innocent victims of crime, but do you think a lot of these Americans get caught up in the drug trade and get killed for their trouble?
I suspect so.
Individual opinions don’t supersede Treaty obligations.
The Congress could remove the United States from the Treaty.
Christoph (92b8f7) — 9/25/2007 @ 5:40 pmIf the relevant counselar officials are to be notified, then the detaining authority has to ascertain the detainees nationality. Of course, in Los Angeles, they are prohibited from doing so by Special Order 40, which is replicated in many jurisdictions through-out the U.S., in the desire to be user-friendly when it comes to our undocumented “guests”.
Another Drew (8018ee) — 9/25/2007 @ 7:26 pmSo, will the Judiciary overrule the various Executive and Legislative bodies that have proclaimed so many of our States and Cities as “Sanctuary” areas, and require police across the country to ask all detainees their country of citizenship?
‘Not allowed to contact consular officials’ and ‘not advised of his right to contact consular officials’ are two entirely different things. Which one is the case here?
Did the accused request access to consular officials? If so, was the request not relayed to the consular office? Or were consular officials prohibited from communicating with the accused?
Does the treaty in question have any mandate requiring that detained foreign nationals be advised of their rights under the treaty?
Or is this some lawyer’s idea of expanding the treaty a-la Miranda into something that it does not expressly state?
ThomasD (9e8a29) — 9/25/2007 @ 7:52 pmI don’t practice law, but it seems to me that the US government did not trust the international court of justice with terrorist operatives from other countries… or their handlers at the embassy here in the US
SteveG (4e16fc) — 9/25/2007 @ 8:34 pmThis was a big issue several years ago, but in the Ninth Circuit at least there is now a long line of case authority finding the failure to advise a defendant of his right to contact a consulate official is usually harmless error.
wls (fb8809) — 9/25/2007 @ 9:54 pmAs another commenter noted, the issue here seems to be that police and authorities don’t necessarily take a proactive role in advising their arrestees about contacting foreign consulates or embassies on their behalf. In certain border areas especially, that would undoubtedly be a useful protocol to include, perhaps as an addition to the Miranda warnings, but it’s not currently law that people be advised of this.
I don’t know of any cases where someone arrested, having requested their foreign consulate be notified, was refused this treaty-guaranteed right.
The optional protocol only seems to be a mechanism which would place the ICJ in a judicial review position superior to our own Supreme Court. I don’t see how that would be useful or necessary, but then I’m prejudiced in favor of the U.S. Supreme Court.
If an arrestee doesn’t, for whatever reason (doesn’t want to call attention to their status as an illegal alien, thinking that they’ll be released at some point, having gotten away with plentiful lawbreaking up to that point), request consular notification, then that’s their own lookout.
Perhaps the Mexican government should add consular notification tips to its comic books advising how to illegally enter the U.S.?
v/r,
CAA
Consul-At-Arms (9a38d4) — 9/25/2007 @ 9:59 pmPrecisely. The stated goal of the people promoting the ICJ is to have it be a sort of World Supreme Court, trumping all local jurisdictions. Their unstated goal is the same as that of the rest of the Internationalists: to bring the damned Americans to heel. Secretary Rice removed us from the Optional Protocols to head that off. Chi intimates that the Court will follow the Ninth Circus in reaffirming American sovereignty; or so one can hope.
Regards,
Ric Locke (527071) — 9/26/2007 @ 5:30 amRic
I’m probably dateing myself, but it’s now a longstanding precedent that the President can revoke the US’s treaty obligations with the stroke of a pen, and Congress gets no say in the matter. If I recall correctly, it was a treaty with Formosa that got revoked.
LarryD (feb78b) — 9/26/2007 @ 9:28 amIn many cases, when US citizens contact US embassies abroad, they don’t get any “relief” from the charge, they go through the legal process in the foreign land, up to and including capital punishment.
As an American citizen formerly residing in foreign countries, I was advised by the consulate/embassies that the only US embassy or consulate responsibility is to ensure any accused US citizen is treated in accordance with the laws of the land in which the (alleged) crime was committed.
In the cases I knew about personally (traffic violations, drug violations, murder), this is precisely what happened. In each case, it was the police who contacted the US consulate/embassy, but then the crimes happened in countries which require id to be carried at all time, so the police would know who to contact.
It seems only right that a foreign national should have the same ability when within the US, but it should always be with an eye to how a foreign national in the US is being treated in accordance with US laws, not some other legal entity.
MayBee (a2697c) — 9/26/2007 @ 9:41 amChrissy:
Exactly how many Americans have you dealt with in foreign countries?
Opinions don’t supercede treaty obligations? Exactly how many treaty negotiations have you ever sat in on and have any knowledge of how they are enforced?
Most treaties are passed by State to prove they “accomplised” something. They are not enforced, have little impact and ignored regularly for political reasons.
Do tell us about your experience in foreign relations, national security, and vast foreign experience.
Your ignorance is exceeeded only by your opinions.
Thomas Jackson (bf83e0) — 9/26/2007 @ 10:16 amHear, hear!
Christoph (92b8f7) — 9/26/2007 @ 11:50 amI still think that if a defendant has access to counsel, whether or not he is advised of the right to contact consular officials is meaningless.
SPQR (6c18fd) — 9/26/2007 @ 1:09 pmSPQR- I agree, and one would think counsel would inform a defendant of that right.
MayBee (a2697c) — 9/26/2007 @ 2:32 pmThere would be a problem if, for example, a defendant didn’t know the American system and was never told about his right to counsel and/or a court-appointed lawyer. That’s where consular notification would help. They could presumably inform their citizen what his rights in the US legal system are.
If all proper legal procedures are followed, however, I don’t see how not informing a defendant of his right to contact his consulate harms him.
MayBee, if someone isn’t informed of their right to counsel, then that would be a substantive violation in my book.
SPQR (6c18fd) — 9/26/2007 @ 2:33 pmMine too, SPQR.
MayBee (f39c71) — 9/26/2007 @ 7:17 pmMay I ask those who believe access to consel is going to do in the third world? Most courts operate under a system that most Americans cannot comprehend, much less describe as law. The bottom line is that once you are overseas you operate under the laws of the land and not those of the US. This means you have no rights in most of the world that are meaningful and to believe that you can get relief from an American embassy is a joke. Anyone who depends on the American embassy in an emergency is going to be badly disappointed.
Thomas Jackson (bf83e0) — 9/27/2007 @ 6:39 amThomas Jackson, I’m talking about the US legal system. My point is that so long as a defendant has access to counsel, claiming that the state did not advise him of another right is not a meaningful violation.
SPQR (6c18fd) — 9/27/2007 @ 7:42 amArrestees are advised that they have the right to an atty. If they don’t request an atty, why does anyone think they will request a member of their Consulate? Regardless, the issue is the remedy to be applied when consul is not contacted. As far as I’m concerned, “it’s a right without a remedy.”
dave (d87ba8) — 9/27/2007 @ 7:54 amSPQR:
I am referring to the Third World. I suggest you review my comment. I’ve dealt with enough Americans overses to realize how clueless Americans are about what an embassy will do and how much consular officers give a damn.
Thomas Jackson (bf83e0) — 9/28/2007 @ 1:37 pmWell, see it like this, if Texas dont stop tgis execution it may have poltical effects like if some american get caught in trouble abroad he or she may not be allowed to contact your ouncil.. I honestly think you, and all other americans should take that underconsideration and try to stop this execution, whether your pro or against the deathpunishment.. 50 (!) countries has signed a document oppose this execution.. That´s 50 countries who will follow this case.. A scaring thought.. but hey, I´m from Sweden so really I shouldnt even care about it..
Sara (9bc25c) — 10/1/2007 @ 6:13 am