U.S. vs. Treaty Law, Part I

NPR reported this afternoon that Secretary of State Rice has announced U.S. intentions to withdraw from an Optional Protocol to the Vienna Convention on Consular Relations granting the ICJ jurisdiction over disputes arising under the treaty. This is just the sort of thing that IHOD was created for, and so I will tackle this matter in a three-part post of epic proportions. This first part will deal with the U.S. and the right to consular assistance. Part II will deal with the Optional Protocol in question, and Part III will go over the U.S. decision to withdraw. Enjoy.

In recent years, the International Court of Justice has repeatedly found the U.S. to be in breach of the VCCR because of our imprisonment and execution of foreign nationals, without first advising them of their right to speak to a consular official from their country. Of course individuals have no standing at the ICJ, and so the claims are brought by foreign governments over the failure to notify their representatives in the U.S. of the arrest of their nationals. The idea is quite simple, Americans know from TV and film that if arrested abroad they can announce that they are American citizens, and demand to speak to the embassy. But this is not because Americans are special; it is because of the VCCR. Mexicans, Gabonese, Kazakhstanis and yes, even the French have the same right to demand consular assistance based on their nationality if arrested abroad in another member State… but most police officers, prosecutors, judges, defense attorneys and arrestees don’t know that, so the defendant’s rights under the treaty go ignored.

It’s hard enough to raise treaty obligations in court in this country. Most judges think you’re making stuff up, even though it says right there in Article VI of the U.S. Constitution that treaties are to be applied by judges as “the supreme law of the land.” It’s even harder to raise the VCCR because our right to counsel is often presumed to address any problem that could arise from not talking to one’s embassy. The public defender, though, usually cannot address cultural perceptions and issues that can prove crucial to the outcome of a case. Rachel Lewis, fellow MU Law graduate and one of my favorite writers, tells the story of Angel Breard in her unpublished 2004 paper, A Fundamental Miscarriage of Justice: U.S. Interpretation of Consular Rights in Article 36 of the Vienna Convention on Consular Relations:

Angel Breard was a dual citizen of Paraguay and Argentina who came to the United States in 1986 to attend school. He was convicted of capital murder in Virginia after a trial in 1993. At the time of his arrest in 1992, police found his Paraguayan passport in his apartment, but despite such clear evidence that he was not a U.S. citizen, he was never informed of his consular rights. He confessed to the crime, and contrary to the advice of his appointed attorney, he refused a plea bargain for manslaughter. He insisted on testifying at his trial against the advice of his attorney, and informing the jury that his father-in-law had put a Satanic curse on him, compelling him to commit the murder. He thought the jury would be sympathetic and forgive him, as Jesus had. Had Breard been able to avail himself of the right to consul, he probably would not have committed such fatal errors of judgment in the courtroom. Breard's ignorance of the American legal system resulted in a death sentence, without his country having ever been informed of his arrest, trial or conviction. (p. 4-5). (footnotes omitted).

Americans were outraged in 1994 when Michael Fay was caned in Singapore for vandalizing cars, so it should be easy to understand why Paraguay sued Virginia. They lost because Breard hadn’t raised his claim at trial. They then took their case to The Hague, and the ICJ ordered the U.S. to take “all measures at its disposal” to stay the execution pending their decision. The U.S. Supreme Court basically said “how cute…” and denied a stay, in part because the issue had not been raised at trial. Breard was executed, and Paraguay withdrew its claim at the ICJ.

While Rachel was writing her paper, we discussed the similarities between the provisions of VCCR Article 36 and Miranda warnings. In her paper she wrote:

Miranda was decided in 1966, after the U.S. had signed the VCCR, but prior to ratification. The rationale the Court used to justify warning detainees of their constitutional rights is analogous to the reasons Article 36 was created for detained foreign nationals. Justice Warren stated, "[t]he accused who does not know his rights and therefore does not make a request may be the person who most needs counsel." It is ironic to note that Miranda was a poor immigrant from Mexico, exactly the type of person Article 36 was designed to protect. (p. 19). (footnotes omitted).

Most criminal lawyers don’t know international law, and consular intervention, the very thing here denied, was probably the only way Breard could’ve raised the issue at trial. In other words, if I sell you a defective car by not telling you about the defect, and you bring it back later after finding the defect, I can say “yeah, it’s defective… I wish I could help you out, but you should’ve said something at the time of the sale.” If that doesn’t sound very fair, it’s probably because it isn’t.

Rachel’s paper also discusses the Murphy Advisory Opinion (Mex. v. U.S.), which was litigated at the Inter-American Court of Human Rights. I’ll close Part I with another excerpt from her paper:

Consular assistance, as the Inter-American Court noted, is a procedural safeguard. It serves to protect the interests of the detainee, who is presumably unfamiliar with his rights in the host country, and therefore presumptively prejudiced if not afforded the chance to contact his consul. Notification of the right to consular assistance should, as the Inter-American Court concluded, be examined in the context of due process considerations, which, the Court noted, "arise from the inherent dignity of the individual." Taking note of the significant steps U.S. Courts have made in the past to ensure due process rights, there is no justification for not complying with the treaty obligations we undertook 35 years ago. (p. 17). (footnotes omitted)