Ask the Expert: Mark Warren on Consular Notification/Vienna Convention after Medellin v Texas

Mark Warren is a human rights researcher and legal consultant based in Ottawa, Canada, who specializes in the application of international law to domestic criminal cases. He is the author of several instruction manuals for consular officers and for attorneys representing foreign nationals facing capital charges. He is also a contributor to Cultural Issues in Criminal Defense, 2d. Ed.

Q: After Medellin v. Texas, is there any reason to still raise claims based on violations of the consular advisement and notification obligations of the Vienna Convention on Consular Relations (VCCR)?

Yes, definitely. Contrary to what was widely reported in the media, the Medellin decision does not address the VCCR at all— let alone resolve its domestic legal status. Nothing in the decision addresses the larger question of individual rights under the VCCR and the remedies that may flow under domestic law for violations of those rights. In fact, the Medellin Court was careful to emphasize that those important issues were not under review:

"The question is whether the Avena judgment has binding effect in domestic courts under the Optional Protocol, ICJ Statute, and U.N. Charter. Consequently, it is unnecessary to resolve whether the Vienna Convention is itself "self-executing" or whether it grants Medellín individually enforceable rights. . . . As in Sanchez-Llamas, 548 U.S., at 342-343, 126 S.Ct. 2669, we thus assume, without deciding, that Article 36 grants foreign nationals "an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification." Medellin v. Texas, 128 S.Ct. 1346, 1357, n. 4 (2008).

These issues should thus continue to be presented as unresolved legal questions, particularly since it is uncontestable that VCCR ratification was consented to by the Senate on the understanding that it is a self-executing treaty. Perhaps most significantly, it’s now entirely clear that a failure to raise VCCR claims in a timely manner will not be excused on any legal basis, meaning that counsel must at all stages ensure that these treaty-based claims are properly raised, argued and preserved for review.

b) If so, generally how should these claims be made?

Apart from the narrow category of Mexican nationals’ cases to which the Medellin decision applies, the Court’s holdings neither add to nor subtract substantially from the strategies that already existed for raising VCCR claims. How counsel should raise a failure by the police to advise a foreign detainee of the right to consular communication and notification still very much depends on the procedural status and factual circumstances of the case.

In pre-trial proceedings, for example, the Supreme Court has already held that "a defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police. If he raises an Article 36 violation at trial, a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance." Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2682 (2006). As discussed in chapter 1 of Cultural Issues in Criminal Defense (2d ed.), any violation of consular advisement and notification rights is now part of the "totality of the circumstances" enquiry when assessing the admissibility of custodial statements. In addition, if a defendant "raises an Article 36 violation at trial, a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance." Sanchez-Llamas, 126 S.Ct. at 2682. Counsel should seek to rely on the "appropriate accommodations" language as the basis for continuances and the rehearing of previously-dismissed pretrial motions based on the prejudicial effects of the treaty violation.

In post-trial proceedings, counsel should continue to argue that giving full effect to the individual rights conferred under the treaty requires the courts to fashion suitable remedies for violations of those rights, whenever it can be demonstrated that the absence of timely consular notification was prejudicial. In addition, the treaty violation should always be linked to other existing claims based on constitutional rights, such as arguing that trial counsel was ineffective for failing to seek the assistance of the foreign defendant’s consulate, see Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App. 2000), or for failing to accept offered consular assistance. See Marquez-Burrola v. State, 157 P.3d 749, 768 (Okla. Crim. App. 2007).

Another still-viable option in many cases would be to consider filing a civil suit for damages for the Vienna Convention violation. The federal circuit courts are split on the question of whether a VCCR violation can result in timely claims for monetary damages under domestic law (usually brought under 28 U.S.C. § 1350 and/or 42 U.S.C. § 1983). The Seventh Circuit, for example, has now twice held that such claims are cognizable; see, e.g., Jogi v. Voges, 425 F.3d 367, 385 (7th Cir. 2005) (authorizing suit under the Alien Tort Statute, 28 U.S.C. § 1350, because "there is an implied private right of action to enforce the individual’s Article 36 rights"). In contrast, the Ninth Circuit recently held that the obligation to inform aliens of their right to consular notification was not enforceable as a private action for damages. See Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007); see also De Los Santos Mora v. New York, 2008 U.S. App. LEXIS 8870 (2nd Cir., Apr. 24, 2008) (consular notification obligations did not provide an alien with rights that he could enforce in a private action for damages brought under either § 1983 or the Alien Tort Statute or under the VCCR itself). The Eleventh Circuit is undecided, recently vacating and remanding a case to determine if the alien tort claim was properly raised and would survive initial screening under 28 U.S.C. § 1915A(b)(1). See Lopez v. Wallace, 2008 U.S. App. LEXIS 4263 (11th Cir., Feb. 25, 2008) (unpublished).

c) How should Medellin be distinguished?

Medellin distinguishes itself: as previously noted, the decision does not address VCCR rights or remedies, and it applies only to a narrow subset of Mexican nationals whose cases were addressed by the International Court of Justice. Counsel should point out that Medellin simply holds that the ICJ decision in Avena is not binding federal law, neither in its own right nor because of the President’s implementing memorandum. Accordingly, state rules of procedural default apply to Avena claims, unless and until Congress says otherwise.

The Supreme Court has now clarified that ICJ judgments on VCCR violations are binding under international law but are not enforceable in the domestic courts (Avena), and that the ICJ’s construction of the treaty does not trump domestic procedural rules (Sanchez-Llamas). However, where the ICJ’s interpretation of VCCR obligations does not conflict with domestic law, its construction of VCCR requirements should be presented as persuasive authority—just as the Medellin Court was itself prepared to accept. See Medellin, 128 S.Ct. at 1355, n. 1 (citing and apparently adopting the ICJ interpretation of the VCCR requirement to notify a consulate "without delay"). One example of where the ICJ’s construction could still be useful to defendants is its finding that advisement by the police of the detainee’s consular rights must take place "as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national." Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31), ¶ 88.

Prepared by: Mark Warren
Human Rights Research,
Ottawa, Canada
For more information on VCCR litigation strategies and the question of individual consular rights, please visit:
http://www3.sympatico.ca/aiwarren