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Breard and Treaty-Based Rights Under the Consular Convention
Published online by Cambridge University Press: 27 February 2017
Extract
Article 36(1) of the Vienna Convention on Consular Relations provides that (a) “[nationals . . . shall have the same freedom with respect to communication with and access to consular officers,” and that (b) “[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” In Breard v. Greene, the Supreme Court nearly recognized that, under the Convention, the individual petitioner had actionable rights that had been violated. The Court concluded, however, that the rights were “defaulted” when not pursued in the state courts, that the errors would not be prejudicial, and that the subsequendy enacted federal Antiterrorism and Effective Death Penalty Act limited the petitioner’s “ability to obtain relief based on violations of the Vienna Convention.”
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- Copyright © American Society of International Law 1998
References
1 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.
2 Breard v. Greene, 118 S.Ct. 1352 (1998). That the individual has rights under the treaty is evident from Article 36(1). See Breard v. Pruett, 134 F.3d 615, 621–22 (4th Cir. 1998) (Butzner, J., concurring); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.) (arrestee's rights under the Vienna Convention were violated when Texas officials failed to inform arrestee of his right to contact the Canadian Consulate), cert, denied, 117 S.Ct. 487 (1996); Lori Fisler Damrosch, The Justiciability of Paraguay's Claim of Treaty Violation, infra p. 697. Like human rights and denial of justice claims, the individual's rights should not be waivable by the national's state, for example, by acceptance of an apology. See also infra note 23.
3 The Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104–132, 110 Stat. 1214 (1996) (codified at 28 U.S.CA. §2254(a), (e)(2) (West Supp. 1998)), requires the development in state court proceedings of the factual basis for claims regarding violations of “treaties.”
4 Breard v. Greene, 118 S.Ct. at 1354–55.
5 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See, e.g., Jordan J. Paust, International Law as Law of the United States 107–08 n.9 (1996); Restatement (Third) of the Foreign Relations Law of the United States §114 (1987) [hereinafter Restatement].
6 See S. Exec. Rep. No. 91–9, at 2, 5 (1969) (appendix) (statement of Deputy Legal Adviser J. E. Lyerly); 1 Restatement, supra note 5, at 457.
7 Certainly, judicially created procedural rules can be controlled by Congress, see, e.g., Sibbach v. Wilson & Co., 312 U.S. 1 (1941), and treaties are at least coequal with acts of Congress. Even if treaties and judicially created procedural rules are considered to be generally coequal, the “rights under treaties” exception to the last-in-time rule, see infra note 13, should assure the primacy of the treaty in this instance.
8 See, e.g., Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268, 272–73 (1909); Hauenstein v. Lynham, 100 U.S. 483, 488 (1879); Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 372 (1857); Strother v. Lucas, 37 U.S. (12 Pet.) 410, 439 (1838); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 593 (1832); Owings v. Norwood's Lessee, 9 U.S. (5 Cranch) 344, 348–49 (1809); United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (Marshall, C.J.); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 237, 244 (Chase, J.), 261 (Iredell, J.), 272 (1796); Paust, supra note 5, at 52, 54–55, 58, 67–68, 97; Restatement, supra note 5, §111(3).
9 See, e.g., Paust, supra note 5, at 51–55, 65–68.
10 See, e.g., id. at 54–59, 67–73; supra note 8.
11 See, e.g., Paust, supra note 5, at 99, 108 n.9.
12 Supra note 3.
” See, e.g., Paust, supra note 5, at 86–88, 96, 99, 116–17 nn. 35–45, 266–67 n.503, 279 n.547, 319 n.8; see also Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (statutes “can never be construed to violate…rights… further than is warranted by the law of nations”) (emphasis added). The “rights under treaties” exception was fashioned by the Supreme Court in the 19th century and is applicable when rights under a treaty are threatened by subsequent federal legislation. Its application ensures the primacy of treaty-based rights.
14 Concerning “denial of justice,” see, e.g., Restatement, supra note 5, §711 reporters' note 2 (“denial to accused of communication with representatives of his government”); Paust, supra note 5, at 8, 199, 259–61 n.481, 290 n.604, 387–90, 397. On the primacy of customary international law over federal statutes, see, e.g., id. at 88–96, 99–100; supra note 13.
15 Breard v. Greene, 118 S.Ct. 1352, 1354 (1998).
16 The cases cited, id. at 1354–55, do not directly support the statement and some are irrelevant. Sun Oil Co. v. Wortman, 486 U.S. 717, 723 (1988), recognized a conflicts principle concerning statutes of limitation mistakenly said to be “reflected” in a rule of so-called international law, citing Le Roy v. Crowninshield, 15 F. Cas. 362, 365, 371 (C.C.D. Mass. 1820) (No. 8,269) (Story, J.). In Sun Oil there is no mention of a treaty or its application or a supposed rule limiting the reach of a treaty unless there is a “clear and express statement to the contrary.” Similarly, Le Roy made no mention of a treaty or international law and merely involved inquiry into a conflicts principle related to “municipal convenience and public utility,” where there is “no hardship or injustice,” not to be departed from in the face of “mere comity.” Id. at 364. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988), merely involved interpretation of an ambiguous treaty witfi reference to forum state law concerning service of process. Societe Nationale Industrielle Aérospatiale v. United States Dist. Court, 482 U.S. 522, 539 (1987), is closer, but involved treaty interpretation and the highly questionable point that, if the multilateral treaty was meant “ ‘to bring about … a curtailment of the rights given to all litigants by the [U.S.] federal rules … [, it] would surely state its intention clearly and precisely identify crucial terms' “ (quoting In re Anschuetz & Co., 754 F.2d 602, 612 (1985)) (emphasis added).
17 See, e.g., Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 26, 1155 UNTS 331; Restatement, supra note 5, §321 cmt. a.
18 See, e.g., Vienna Convention on the Law of Treaties, supra note 17, Art. 27.
19 See, e.g., Jordan v. Tashiro, 278 U.S. 123, 127 (1928); Asakura v. City of Seattle, 265 U.S. 332, 342 (1924); United States v. Payne, 264 U.S. 446, 448 (1924); Hauenstein v. Lynham, 100 U.S. 483, 487 (1879) (citing Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 249 (1830)); see also Owings v. Norwood's Lessee, 9 U.S. (5 Cranch) 344, 348–49 (1809) (“Whenever a right grows out of, or is protected by, a treaty, … it is to be protected”).
20 Concerning access to courts and the right to an effective remedy, see, e.g., Restatement, supra note 5, §711 reporters' note 2; Paust, supra note 5, at 7–8, 34 n.38, 198–203, 256–72, passim.
21 Breard v. Greene, 118 S.Ct. 1352, 1356 (1998).
22 Vienna Convention on Consular Relations, supra note 1 (emphasis added).
23 See, e.g., Victor M. Uribe, Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice, 19 Hous. J. Int'l L. 375, 387–90, 397 (1997); but see Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987).
24 Justice Souter expressed “doubts that either Paraguay or any official acting for it is a ‘person’ within the meaning of 42 U.S.C. §1983.” Breard v. Greene, 118 S.Ct. at 1356 (statement of Souter, J.). Given the express independent right of consular officers under the treaty and the requirement that federal statutes be interpreted consistently with international law (including the right to an effective remedy), they should be treated as “persons.” See Republic of Paraguay v. Allen, 949 F.Supp. 1269, 1275 (E.D. Va. 1996).
25 See 28 U.S.C. §1607 (1994); National City Bank v. Republic of China, 348 U.S. 356 (1955).
26 See also Ex parte Gruber, 269 U.S. 302, 303 (1925); The Federalist No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed. 1961) (“it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation”); Damrosch, supra note 2. Article III, §2, clause 1 of the Constitution both contemplates and assures the extension of federal judicial power to suits “between a State … and foreign States,” but clause 2 notes that the Court will have appellate jurisdiction over such suits, a power complementary to the treaty power and the Supremacy Clause.
27 See also 28 U.S.C. §1251 (1994) (“Supreme Court shall have original but not exclusive jurisdiction of … all actions to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties”). Of course, the Court will decide on its constitutionally based independent judicial power, not Congress. See California v. Arizona, 440 U.S. 59, 65 (1979).
28 See Breard v. Greene, 118 S.Ct. at 1356 (citing Milliken v. Bradley, 433 U.S. 267 (1977)). Cf. Republic of Paraguay v. Allen, 134 F.3d 622, 627–28 (4th Cir. 1998) (“ongoing,” “continuing” violation).
29 But see Republic of Paraguay v. Allen, 134 F.3d at 627–28; Breard v. Netherland, 134 F.3d 615, 619 (4th Cir. 1998); United Mexican States v. Woods, 126 F.3d 1220, 1223 (9th Cir. 1997) (“The facts … are fixed …. past conduct …. [and] Mexico … [, later,] has received notice and currently has access …. [and] is not precluded from ensuring … effective counsel” now); Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.), cert. denied, 118 S.Ct. 26 (1997) (also stating that the cause for defendant's failure to raise the Vienna Convention claim was not the state's continuing failure to notify under the treaty, allegedly because there was “no ‘external impediment preventing [his] counsel from constructing or raising the claim,’ ” but the failure of his attorney to engage in “a reasonably diligent search” of the law, adding: “Treaties are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national.” This argument is also bizarre: the state violated the duty to notify, but the individual's ignorance of treaty-based rights and the consulate's ignorance of the fact that a national was arrested were not “caused” by the state's failure to notify in breach of the treaty if die individual's attorney could have discovered the ongoing breach and corrected the violation by notifying the accused and the consulate; i.e., my breach did not cause anything because someone else could have corrected my continuing breach, but I did not tell them either).
Consider a reverse scenario. The United States is informed that a foreign state's failure to supply counsel during trial to a U.S. accused per terms of a treaty is a past event and of no serious consequence because now that the U.S. citizen is incarcerated, the United States knows of the situation, can visit the prisoner, and can provide a lawyer; but the conviction stands and a death sentence will be imposed. Adding insult to injury, the foreign state declares that die U.S. citizen, who was unaware of her treaty-based right to counsel, “defaulted” on the error.
In view of the above, it is certainly not die case that Virginia complied with the Vienna Convention after Breard's rights under the Convention were brought to its attention, and I doubt that the federal Government took adequate steps “to ensure that… state … officials would … comply.” Cf. Curtis A. Bradley & Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, supra p. 675, 676 n.7.
30 Article VI, clause 2 has conditioned the meaning of the 10th Amendment powers of states, see, e.g., Missouri v. Holland, 252 U.S. 416 (1920); Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), and should similarly condition 11th Amendment immunities.
31 See also Damrosch, supra note 2. We also agree that Principality of Monaco v. Mississippi, 292 U.S. 313 (1934), is distinguishable. It was based on an ordinary claim for money regarding bonds, not claimed violations of a treaty that is supreme law of the land, is so clearly tied to domestic legal processes, and implicates serious federal and international concerns.
32 See, e.g., Paust, supra note 5, at 51–55, 65–68, 92, 97, 133–34 n.83, 202, passim; Louis Henkin, Provisional Measures, U.S. Treaty Obligations, and the States, supra p. 679; Carlos Manuel Vazquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, supra p. 683; see also Louis Henkin, Foreign Affairs and the United States Constitution 157, 233–34 (2d ed. 1996).
I do not confuse “foreign relations” as such with treaties, which are the supreme law of the land binding national and state judges alike. The President is also bound by treaty law of the United States. See, e.g., Paust, supra note 5, at 143–46, 154–59; Henkin, Provisional Measures, supra. For these reasons and in view of the Supremacy Clause and its history, it is disingenuous to argue that the Constitution leaves resolution of arguments concerning compliance with the Vienna Convention and the ICJ Order “largely to the elected officials.” See Bradley & Goldsmith, supra p. 678, text at n.26. Compliance with treaty law is not discretionary with the President, or, indeed, the courts, see supra note 8. The significant focus should not be on “foreign relations” or “national interest” as such, but on treaty law, the Supremacy Clause and Article III of the Constitution.
It is also misleading to argue that customary human rights are mere “common law” and that die irrelevance of federalism to “foreign relations” “underlies” claims that such customary law “trumps state law.” See Bradley & Goldsmith, supra p. 675. The fact that customary international law is part of the law of the United States, the Supremacy Clause and trends in judicial decision underlie the supremacy of customary human rights law over state law. See, e.g., Paust, supra note 5, at 1–50, 182–83, 187, 202, 234, 248, 267, 271, passim; Jordan J. Paust, Customary International Law in the United States: Clean and Dirty Laundry, 40 Ger. Y.B. Int'l L. 78 (1998). It is also misleading or in error to state that the federal Government has merely “limited and enumerated,” not implied, powers, Bradley & Goldsmith, supra p. 677 n.18; that Alvarez-Machain's “holding” rested on general international law and confirms a “dualist” approach (it was based narrowly on a misreading of a bilateral treaty), id. p. 679 n.31; and that federal clauses and non-self-executing declarations attached to other treaties mean that such treaties are to have “no domestic force and do not alter the balance of authority between” states and the federal Government, id. p. 677. Concerning the latter, compare Bradley & Goldsmith, supra, with Connie de la Vega, Civil Rights During the 1990s: New Treaty Law Could Help Immensely, 65 U. Cinn. L. Rev. 423, 455, 460, 467–68, 470 (1997); Jordan J. Paust, Race-Based Affirmative Action and International Law, 18 Mich. J. Int'l L. 659, 671–74 (1997); and Jordan J. Paust, The Permissibility of Affirmative Action in Higher Education under Human Rights Law, 3 N.Y.C.L. Rev. (forthcoming 1998).
33 See, e.g., Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring); supra note 29.
34 For examples of such claims, see, e.g., Damrosch, supra note 2.