Vienna Convention Rights—Sanchez-Llamas/Bustillo

As the United States Supreme Court works through the last week of the 2005-2006 term, it has held some of the most interesting decisions for last. In the decision announced yesterday in the consolidated cases of Sanchez‑Llamas v. Oregon (04-10566) and Bustillo v. Johnson (05-51), a 5‑4 majority held that foreign national criminal defendants have a right to notify and consult with their consulates upon arrest.^[1] However, that right is virtually unenforceable.

The Court acknowledged that the Supremacy Clause requires United States courts to give effect to treaty law and agreed with the state’s arguments that “our authority to create a judicial remedy applicable in state court must lie, if anywhere in the treaty itself.”^[2] Reasoning that the Vienna Convention on Consular Relations does not include any enforceability provisions, and that “the exclusionary rule as we know it is an entirely American legal creation,” the majority focused on whether or not the exclusionary rule applied to the facts in Mr. Sanchez‑Llamas’ case. In so doing, it avoided discussing the direct question of whether or not multinational treaties are enforceable in U.S. courts. However, the slant of this case against individual treaty‑based rights is unmistakable.

The Vienna Convention on Consular Relations provides in Article 36(1)(b) that “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…[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.”^[3]

However, the Convention does not address the issue of remedy in the treaty itself, addressing that issue in a corollary document, the Optional Protocol Concerning the Compulsory Settlement of Disputes. This Protocol specifies that the International Court of Justice (ICJ) is the arbiter of interpretation.^[4] Although the United States originally signed both the Convention and the Protocol, it withdrew from the Protocol on March 7.^[5]

The majority found that this treaty‑blind approach was also consonant with the Vienna Convention Article 36(2), in which, “[t]he 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.”^[6] Chief Justice Roberts, writing for the majority, stated that “neither the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression of Sanchez‑Llamas’ statements to police.”^[7]

Therefore, under Sanchez‑Llamas, if a criminal defendant seeks to suppress evidence he would not have given but for the police denial of his right to consult with his consulate, he may look only to the laws and precedents of the court charging him with a crime for a remedy.

In considering Mr. Bustillo’s contention that his consular rights claim must not be barred simply because it was entered for the first time after conviction, the Court affirmed its earlier ruling in Breard v. Greene, 523 U.S. 371 (1998) (per curium), holding that “claims under Article 36 of the Vienna Convention may be subjected to the same procedural default rules that apply generally to other federal‑law claims.”^[8]

Noting that even though the ICJ has ruled differently on the application of procedural default rules with regard to Article 36, default rules “generally take on greater importance in an adversary system such as ours than in the sort of magistrate‑directed, inquisitorial legal system characteristic of many of the other countries that are signatories to the Vienna Convention.”^[9] In fact, the Court noted that it “has not taken the view that the ICJ’s interpretation of Article 36 is binding on our courts.”^[10]

Therefore, Justice Roberts opined that “it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States.”^[11]

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[1] Sanchez‑Llamas v. Oregon, 548 U.S. ____ (2006).
[2] Sanchez‑Llamas at 9.
[3] Sanchez‑Llamas at 4, citing Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 100‑101, T.I.A.S. 6820 at 36(1)(b) [hereinafter Convention].
[4] Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T 325; T.I.A.S. 6820.
[5] Sanchez‑Llamas at 6. See also Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary‑General of the United Nations. See also Charles Lane, U.S. Quits Pact Used in Capital Cases, Washington Post, Mar. 10, 2005.
[6] Sanchez‑Llamas at 9. See also Convention supra note 3 at 36(2).
[7] Sanchez‑Llamas at 10.
[8] Sanchez‑Llamas at 15, citing Breard v. Greene, 523 U.S. 371 (1998) (per curium).
[9] Sanchez‑Llamas at 13.
[10] Sanchez‑Llamas at 13.
[11] Sanchez‑Llamas at 14.