19. Submission, United States, to the Inter-American Court of Human Rights regarding Mexico/VCCR advisory opinion request (June 1, 1998)
INTER-AMERICAN COURT OF HUMAN RIGHTS
SAN JOSE, COSTA RICA
REQUEST FOR ADVISORY OPINION
THE GOVERNMENT OF
THE UNITED MEXICAN STATES
CONCERNING APPLICATION OF THE DEATH PENALTY IN VIOLATION OF
THE VIENNA CONVENTION ON CONSULAR RELATIONS
INTERNATIONAL HUMAN RIGHTS GUARANTEES
WRITTEN OBSERVATIONS OF
THE UNITED STATES OF AMERICA
June 1, 1998
corrected June 10, 1998
Table of Contents
I. IntroductionPage 1
II. Jurisdiction 3
III. Summary of Why Mexico's Submission Must In
Any Event Be Rejected on the Merits. 7
IV. The Vienna Convention on Consular Relations 9
A. The obligations and practice of State parties
under Article 36 10
B. VCCR remedies and enforcement 20
V. U.S. Implementation of Vienna Convention Obligations 22
VI. Consular Notification Is Not a Prerequisite for the
Exercise and Protection of Human Rights. 25
A. The purpose of the VCCR is not to establish or
protect individual human rights. 26
B. Consular notification is not a prerequisite to
protecting the human rights of individuals
subject to criminal proceedings. 30
C. Other means assure the effective protection of
human rights in the United States. 33
D. Claims that consular notification might have altered
the outcome of past cases are speculative and improbable. 43
E. Consular notification has no special role in cases
involving application of the death penalty. 47
F. Mexico's argument has serious implications for
the criminal justice systems of VCCR parties. 49
VII. The Failure to Provide Consular Notification is Not Discriminatory
and Does Not Violate the Right to Equality Before the Law 49
VIII. Conclusion 52
Pursuant to Article 64 of the American Convention on Human Rights, the Government of the United Mexican States ("Mexico") has requested an advisory opinion from the Inter-American Court of Human Rights pertaining to what Mexico characterizes as "the right of all foreign detainees who may face the death penalty to be notified, from the time of their arrest, of their right to obtain assistance from the consular authorities of their country." The request refers in particular to Article 36 of the Vienna Convention on Consular Relations, done at Vienna, April 24, 1963, 596 UNTS 261 ("VCCR"), and the guarantees of equality and due process recognized in the International Covenant on Civil and Political Rights ("ICCPR"), the Charter of the Organization of American States ("Charter"), and the American Declaration of the Rights and Duties of Man ("American Declaration").
Specifically, Mexico has asked the Court to clarify:
whether notification of the right to consular assistance is included in the guarantees for ensuring a fair trial for foreigners accused of crimes that are punishable by death;
whether consular notification must be provided at the time of arrest or before the foreigner provides a statement to law enforcement authorities; and
whether the failure to provide consular notification is in keeping with the right of the foreigner to have access to adequate means for the preparation of his defense and with his right to full equality under the law.
The Government of the United States of America ("United States") respectfully submits its views with respect to Mexico's request for a number of reasons. First, the United States questions the appropriateness of this Court considering Mexico's requests in the context of an advisory opinion. It is clear that Mexico's petition is directed specifically at the United States and invites this Court to engage in factual and legal findings involving a particular bilateral situation that are clearly beyond its jurisdiction and competence in the context of an advisory proceeding. This Court cannot, and should not, attempt to make factual findings concerning particular cases that have arisen in the United States. There is no factual basis before the Court on which it could plausibly rule on the particular cases.
Second, a decision by the Court to accept Mexico's proposals would seriously distort both the nature of the consular notification and access provisions of the VCCR and human rights principles. Contrary to Mexico's submission, there is no individual right -- much less an individual human right -- to consular assistance; there is no basis for saying that consular assistance is necessary to a fair trial; there is no obligation for consular notification to be given precisely at the time of arrest or before a statement is made by a detainee; and there are no special rules of consular notification applicable in cases involving the death penalty. The rights and obligations of consular notification are rights and obligations of States that exist when States have established consular relations. While these rights benefit individuals, they are not human rights that inhere in individuals, and they do not even exist in the absence of consular relations. Moreover, they are rights merely of notification and access, not rights to consular assistance.
Article 64 of the American Convention permits the Court to consider requests for advisory opinions on the interpretation of the Convention itself and "of other treaties concerning the protection of human rights in the American states." In Advisory Opinion OC-1/82 of September 24 , 1982, "Other Treaties Subject to the Consultative Jurisdiction of the Court," Series A No.1, 22 ILM. 51 (1983), the Court described this aspect of its jurisdiction as "permissive" and "more extensive that that enjoyed by any international tribunal" then in existence. Nonetheless, even under this broad view the Court determined that its jurisdiction was limited to treaties concerning the protection of human rights.
In the present case, the issue turns on an interpretation of the obligations of States parties to the VCCR, which manifestly is not a human rights treaty. Nor is the VCCR a treaty "concerning" or "dealing with" the protection of human rights so as to confer jurisdiction upon this Court." Indeed, to paraphrase the Court's own words, the VCCR is one of those "multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States," and readily distinguished in character from "modern human rights treaties." See para. 29, OC-2/82 of September 24, 1982, "Effect of Reservations on the entry into Force of the American Convention on Human Rights," Series A. No. 2, 22 ILM 37 (1983). As indicated elsewhere in this memorial, even if the VCCR establishes a potentially important protection for certain individuals in detention (foreign nationals whose States of nationality have consular relations with the host State), it does not follow that it concerns or deals with human rights so as to confer jurisdiction upon this Court. Not every obligation of States regarding individuals is perforce a human rights obligation. Nor does the fact that one provision in the VCCR may authorize beneficial assistance to certain individuals in certain circumstances transform the VCCR into a human rights instrument containing "binding unilateral commitments not to violate the human rights of individuals within their jurisdiction." Id. at para. 33. Treaties concerning investment, trade, and other aspects of bilateral reciprocal relations such as ownership of land and rights of inheritance, for example, confer not only benefits but also rights on individuals, but such treaties are not considered human rights treaties within the jurisdiction of the Court.
There are other compelling reasons why the Court should, in this instance, act both judiciously and with caution. The VCCR is not in any sense a regional treaty; nor does it belong to the Inter-American system. Rather, it was adopted under the auspices of the United Nations to establish a uniform global regime for the conduct of consular relations between States. The prospect of differing interpretations of State obligations on a regional basis is inconsistent with that objective. Second, there is already pending before the International Court of Justice ("ICJ") a contentious proceeding involving the same issue that Mexico has raised in this proceeding. Indeed, that case was brought against the United States by the Republic of Paraguay, a State that has indicated an intent to participate in this proceeding. Thus, this case will necessarily involve many of the same legal and factual issues that are now before the ICJ. Prudence, if not considerations of comity, should lead this Court to defer its consideration of the pending request until after the ICJ has rendered its decision interpreting the obligations of States party to the VCCR.
Still another reason the Court should decline to exercise jurisdiction in the present proceeding is that Mexico has in fact presented a contentious case in the guise of a request for an advisory opinion. The Court has on several occasions expressed its concern over this possibility. See, e.g., Advisory Opinion OC-3/83 of September 8, 1983, "Restrictions to the Death Penalty," Series A No. 3; cf. Advisory Opinion OC-1/82 of September 24, 1982, "Definition of Other Treaties Subject to the Interpretation of the Inter-American Court of Human Rights," Series A. No. 1, 22 ILM 51 (1983), para. 24; Advisory Opinion, OC-2/82 of September 24, 1982, "Entry into Force of the American Convention for a State Ratifying or Adhering with a Reservation," Series A No. 2, 22 ILM 37, para. 23. It is of course a distinction well-known to the ICJ. See Interpretation of the Agreement of 25 March 1951 Between WHO and Egypt, 1980 ICJ Rep. 73; The Interpretation of Peace Treaties Case, 1950 ICJ Rep. 65; Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5.
That the subject matter of the current proceeding involves a contentious case is evident from the fact that the disputes presented by Mexico's application cannot be resolved without reference to specific facts. They do not turn simply and completely on a question of law or of treaty interpretation. They are necessarily determined by analyzing facts, yet those facts have not been categorically established, and cannot be established before this Court. As this is a request under Article 64(1), the Court must limit itself to the question of interpretation in general terms, without considering the particular laws and practices of a particular country. See Advisory Opinion, OC-14/94, of December 9, 1994, "International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights)," Series A No. 14.
While Mexico alludes to a number of cases in the United States involving the death penalty and consular notification issues, the judicial record in none of the cases is before this Court. Indeed, the submission of the Mexico does not even specifically identify the majority of cases on which it bases its request for an advisory opinion, and many of them apparently remain in litigation in U.S. courts. The United States has not had the opportunity to refute the generalized allegations with specific factual proof. Nor have the victims of the crimes committed or the competent authorities of the governmental entities that prosecuted the crimes had an opportunity to participate with the United States, to ensure that all relevant information is available and to defend the integrity of the convictions obtained. Yet a decision by this Court, even of an advisory nature, would necessarily involve a judicial characterization of those cases, and of the rights of the individuals and governments concerned. Moreover, such a decision could seriously compromise the integrity of the judicial systems in which these cases are pending.
Thus, the present case is patently an attempt to subject the United States to the contentious jurisdiction of this Court, notwithstanding that the United States is not a party to the American Convention and has not accepted the contentious jurisdiction of the Court under Article 62. An advisory opinion in the form sought here by Mexico will necessarily prejudice the rights and interests of the United States in any future contentious proceeding before this Court and in other international legal proceedings, as well as in its domestic legal system. The Court should not take such action in an advisory proceeding. Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5.
III. Summary of Why Mexico's Submission Must
In Any Event Be Rejected On the Merits
The United States treats seriously its obligations under the VCCR, including those relating to consular notification and access. Consular notification is important, and it is incumbent upon States to ensure that it is provided in all relevant cases, not just in those involving the death penalty. But, as demonstrated below, there is no support, either in the VCCR or in relevant human rights instruments, for Mexico's efforts to transform the VCCR's consular notification obligations into a necessary and universal prerequisite for the observance of human rights, or into an obligation that, if not observed, invalidates the results of a state's criminal justice system.
First, and contrary to the suggestion in Mexico's submission, the VCCR does not create a right to consular assistance. Rather, it provides that a receiving State must inform a detainee that, if he requests, sending State consular authorities may be notified of his detention (hence, the term "consular notification"). If the detainee requests consular notification, whether, and to what extent, consular assistance is ultimately provided to the detainee is in the discretion of sending State's consular authorities. Neither the VCCR nor international human rights instruments require that consular assistance be provided, or establish any minimum standards for consular assistance. Nor do they in any way require that criminal proceedings be held in abeyance while consular notification is given. Indeed, nothing in the VCCR requires domestic courts to take any particular action regarding domestic criminal proceedings either to give effect to the VCCR's consular notification provisions or as a remedy for an alleged violation of those provisions.
Second, the VCCR's consular notification obligation is not a prerequisite for the observance of human rights in criminal cases. It does not constitute a human right enforceable in national courts in order to invalidate criminal proceedings that otherwise satisfy relevant human rights norms as reflected in national law. The international human rights instruments invoked by Mexico, and presumably the relevant municipal laws of all OAS member states, provide foreign detainees with specific fair trial rights and procedural protections. These protections -- which are not addressed in the VCCR -- have long been recognized by the international community as the principal guarantees of fairness in criminal proceedings. These rights are to be given effect by the territorial State in all cases, regardless of the nationality of the defendant and regardless of whether consular relations exist between the host country and a foreign national defendant's country. The right to their enjoyment does not depend in law on the presence or absence of consular notification, and should not depend on consular notification in practice. Nor does it or should it depend on the existence of consular relations. The Court should decline Mexico's invitation effectively to amend and expand existing international human rights protections to incorporate the VCCR's consular notification obligation. The relevant human rights instruments and their negotiating histories make no reference, explicitly or implicitly, to consular notification; conversely, the VCCR makes no reference to human rights and no effort to establish standards for criminal proceedings. This Court should not accept Mexico's invitation to obscure the important distinctions between the VCCR, on the one hand, and human rights instruments, on the other.
IV. The Vienna Convention on Consular Relations
The VCCR is an intergovernmental agreement among approximately 160 State parties concerning the conduct of consular relations between States and the privileges and immunities relating to the conduct of consular functions by consular officials. The VCCR was adopted at the 1963 United Nations Conference on Consular Relations in Vienna, A/CONF.25/16, as a parallel instrument to the earlier Vienna Convention on Diplomatic Relations. It was intended to "contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems," by addressing "consular relations, privileges and immunities." (VCCR, Preamble.) Accordingly, it addresses issues such as the procedure for the establishment of consular relations, the inviolability of consular premises, the appointment of consular staff, and exemption from taxation and other forms of host government regulation. The VCCR also enumerates functions that consular authorities are authorized to perform within host countries, and the facilities, privileges, and immunities that are to be granted to consular officers and consular posts.
Issues regarding the interpretation and application of the VCCR are resolved most often through diplomatic channels in bilateral discussions and negotiations between the States parties. Approximately 53 States parties to the VCCR, however, are also parties to the VCCR's Optional Protocol Concerning the Compulsory Settlement of Disputes (done at Vienna April 24, 1963; entered into force March 19, 1967; 596 UNTS 487), which provides for conciliation or arbitration by agreement or referral of disputes to the ICJ. That Court has only once addressed the requirements of the VCCR (United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports, p. 3). As we have noted, however, a second case is now pending before the ICJ that involves issues related to those raised by Mexico's request to this Court.
A. The obligations and practice of State parties under Article 36
Among the principles enumerated in the VCCR are the freedom to communicate with detained nationals of the consul's country of nationality, and the obligation of "competent authorities" of the receiving State, upon the detainee's request, to notify consular posts when such nationals are detained in any way. This facility, granted to consular posts, is addressed in Article 36, paragraph 1 of the VCCR:
"1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, 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. Any communication addressed to the consular post by the person arrested . . . shall also be forwarded to the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. . . .
Thus, Article 36 reflects two separate notification obligations: the obligation to inform the foreign national of the option to have consular officials notified, and the further obligation to notify consular officials if requested by the detainee. The United States understands that Mexico's submission relates only to the first obligation, to inform the foreign national of the option to have consular officials notified of the detention. In fact, a foreign national may already be aware of the right to consular notification, particularly if he is from a country that vigorously seeks to protect its citizens abroad. It is equally possible that, regardless of whether consular notification is given by the host country, the detainee or his family or friends will advise consular officials directly of the detention. Indeed, U.S. consular officials frequently learn of detentions of U.S. nationals -- including detentions in Mexico -- from friends or relations of the detainee, not from the host country officials. Thus, consular notification can occur even if law enforcement officials neglect to inform a foreign detainee of its possibility. In its guidance to U.S. law enforcement officials, the United States takes the view that the individual need not be informed of the right to consular notification if consular notification in fact has already occurred, because at that point informing the individual is an unnecessary formality.
It appears that compliance with the receiving State's obligations (1) to inform a foreign national who has been detained or arrested that consular authorities may be notified and (2) to notify a consular official if requested, varies widely among VCCR parties. Some countries seem to comply unfailingly, others rarely, if at all. (Mexico frequently fails to comply with the VCCR consular notification obligations with respect to U.S. nationals.) Rates of compliance appear to be a function of factors such as whether a country is large or small, whether it has a unitary or federal organization, the sophistication of its internal communication systems, the number and frequency of foreign visitors, and the manner in which the country has chosen to implement the obligation. Countries have chosen to implement the obligation by providing only oral guidance; by issuing internal directives; and by enacting implementing legislation. Some States apparently do not provide any guidance to law enforcement authorities.
Article 36 provides that both notification obligations must be carried out "without delay." No more specific definition of "without delay" is to be found in the VCCR's text or in its negotiating record, and there is no basis for Mexico's suggestion that the notification must occur precisely at the time of the arrest. Rather, a defendant should be informed about consular notification following his detention or arrest, within a limited, reasonable period of time that allows authorities to determine whether the defendant is a foreign national and to complete the necessary formalities.
As a practical matter, notification at the time of arrest may not be possible. An arrest may occur in exigent circumstances, or may involve little or no communication between the arresting official and the detainee. Typically it is only when a detainee arrives at a detention facility, at the earliest, that detaining officials have a reasonable opportunity to ascertain the detainee's nationality and to advise the detainee of the possibility of notification to his consul. In some cases, the fact that a detainee is a foreign national is not known -- and even cannot be known -- until long after the arrest. In the United States, for example, detained foreign nationals may lie about or conceal their nationality to avoid deportation and there often is no obvious distinction between an American citizen and a foreign national.
When States have wished to agree to specify a precise time by which the consular notification procedure must be completed, they have done so by concluding agreements separate from the VCCR. For example, the United States and other States have negotiated bilateral consular agreements that provide enhanced consular protections, beyond those contained in the VCCR. In some of these enhanced agreements, the States parties have allowed each other up to four days to provide consular notification following a detention or arrest. See U.S. Department of State, Consular Notification and Access, (January 1998), pp. 47-49 (summarizing bilateral agreements between the United States and other countries). The existence of such agreements is inconsistent with Mexico's suggestion that consular notification under the VCCR must occur at the time of arrest or before a foreign national provides a statement to the authorities.
That Mexico's suggestion is untenable is also evident from the fact that Article 36 does not specify the manner in which notification to consular officials must be provided. Indeed, some countries provide notification by diplomatic note, a formal and frequently lengthy process. Notification may also occur by mail, phone, or facsimile, or even in person. Depending on the means chosen, there may be a significant delay before notification is received by consular authorities. Moreover, even in countries where notification is normally provided by telephone, completing notification depends upon the particular consular facility being open. Persons arrested in the evening or at night, on weekends or on holidays, often cannot have their detention notified to a consular official until the next business day for the consular facility, which may mean a delay of several days. During this time, even under the best of circumstances, criminal proceedings take the same course for both aliens and nationals. As a result, statements, pleas, or other events significant to a criminal proceeding may well occur either before the detainee is notified of the right to consular notification; before consular notification, if requested, is made; or before the accused speaks to a consular official. Thus, nothing in the VCCR or in state practice under the VCCR supports Mexico's suggestion that procedures in criminal cases must be brought to a halt until notification occurs.
Further, Mexico's assumptions about what occurs after the "competent authorities" make a requested consular notification goes well beyond that which is provided for in Article 36 and beyond actual practice. For example, while Article 36(1)(c) establishes that consular officials must be permitted to visit their nationals in detention, to converse and correspond with them, and to arrange for their legal representation, detained persons are not required to accept such assistance, and a consular officer must refrain from taking any action on behalf of a detainee that the detainee opposes. Id. A detainee may in fact reject consular assistance for a variety of reasons, including to protect his privacy or because of a general distrust of his own government, or because he considers it unnecessary (e.g., in the case of a long-term, assimilated resident).
More importantly, the VCCR does not obligate consular officials to provide any measure of substantive consular assistance in any case, whatever the nature of the charges or the potential penalty. This is particularly significant and merits emphasis: the VCCR provides for the notification of consular authorities at the request of a detained person, and allows consular authorities access to the individual, but it does not establish a substantive right to consular assistance vested in the detained individual. Governments need not assist their nationals, and some do not do so consistently, or at all. Given this practice, to suggest that there is an obligation for the receiving State to hold its criminal justice process in abeyance pending the provision of such services is untenable. It is not supported by the VCCR, its negotiating history, or state practice. It is inconceivable that States would agree to such an obligation, and they have not done so.
In fact, the practice of States -- and even of individual consuls -- in assisting their nationals varies widely. Some States are very active, while others choose not to provide significant consular assistance or are unable to do so owing to limited resources. Even the most active States, however, do not provide the exceptional array of services postulated in Mexico's request for an advisory opinion. Indeed, Mexico's portrayal of consular assistance as a universal prerequisite to the protection of human rights proceeds from a largely imaginary and inaccurate view of the consular function.
In the case of the United States, for example, upon learning that a U.S. national has been detained, a U.S. consular officer typically seeks to visit the detainee in person to ascertain the extent to which he or she requires or wishes consular assistance. A long-term resident of the host country may have an established network of family, friends, advisors, and legal counsel that could obviate the need for any consular assistance. In contrast, a more temporary visitor may find consular assistance to be more beneficial. Some detainees, for privacy or other reasons such as negative views about their government, wish no consular assistance regardless of their needs.
A U.S. consular officer inquires whether the detainee has legal counsel and will frequently provide the detainee with general information about the receiving State's judicial system. If the detainee does not have legal counsel, U.S. consular officials also provide information to help detainees identify and retain legal counsel. The United States does not, however, recommend specific lawyers or hire and pay for lawyers to assist its nationals. Rather, the national must bear the cost of legal counsel, or rely upon the host country to provide free legal services, just as he would do if at home. To our knowledge, this is the long-standing general practice of State parties to the VCCR.
U.S. consular officials also offer to assist detainees in communicating with family and friends in the United States, and seek to stay generally informed about the status of the detainee's case. They offer reading material in some cases and may assist in transferring to the detainee funds from family or friends in the United States. They may also arrange for medical attention and provide medical and dietary supplements when necessary to preserve a detainee's good health while in prison. These activities are not unlike those of a social worker. Most critically, consular visitation acts to ensure that the individual is not suffering in detention.
Countries with fewer resources and less formal internal guidance are likely, in general, to provide significantly fewer services. Providing a high level of consular assistance requires a commitment of human and financial resources that is beyond the capacity of many States. A State with a relatively large number of nationals sojourning or residing in a host State may only have one or two consular officials in a capital city, and none at all in more remote locations. In such circumstances, a State's consular officials may choose or be required to limit the consular assistance they provide to detained nationals. They may choose, for example, not to undertake prison visits at all or to visit only selected prisoners or locations. Such officers may limit consular contacts with their detained national to periodic correspondence or telephone calls. Even countries with significant resources may limited their consular services if providing such services is not a priority for that country. Others may vary their focus on consular assistance in light of the host country involved.
Ultimately, each State decides for itself what it can and will do in aid of its nationals. Thus neither the text nor the negotiating history nor state practice supports the existence of a "right to consular assistance." On no basis, therefore, could this Court find that consular assistance is a human right, in any context. To do so would, on the one hand, impose obligations on governments to provide assistance that they have never accepted and may not be able to meet and, on the other, would hold national criminal justice systems hostage to foreign governments' ability and willingness to assist their nationals.
It is also relevant to note that there are significant legal limits on the prerogatives of consular authorities. Article 5(i) of the VCCR limits the rights of consular officers to represent or to arrange representation of their nationals before the authorities of the receiving State. They may do so only "subject to the practices and procedures obtaining in the receiving State." The United States does not permit foreign consular officials to act as attorneys in the United States (nor may its own consular officers abroad act as attorneys for American citizens). We believe that this is the general practice of States. Moreover, a consular official could seriously interfere with a foreign national's legal defense if the official were to undertake to provide legal advice with respect to a criminal proceeding notwithstanding the official's lack of competence to do so, or to second-guess the views of the detainees' lawyers.
Finally, Article 36 makes no distinction among different kinds of detentions. It applies regardless of the types of charges a detainee might face. There is no basis in the VCCR, therefore, for saying that consular notification has any special status derivative of the nature of the particular case. On the face of the treaty, a foreign national resident in a country for twenty years and fluent in its language who is arrested for a minor crime must be advised of the right of consular notification in the same way as a foreign national who is transiting briefly, does not speak the language, and is arrested for a crime that could be punished by life imprisonment or the death penalty. The VCCR provides no basis for saying that consular notification has some different or higher level of importance in one case than in the other. This is consistent with the fact that consular notification has not been understood to be an essential component of a national criminal justice proceeding against a foreign national.
In sum, Article 36 does not create a right to consular assistance, change the essential elements of host countries' criminal justice systems, or speak to the fundamental elements of international criminal justice protections. Rather it attempts to ensure that consular officials will become aware of detentions of their nationals if the detainee so wishes, so that the officials can then act as they deem appropriate, in a manner not inconsistent with the host government's legal system. Consular officials may become aware of detentions through other means, as well, and may or may not provide any particular form of assistance.
B. VCCR remedies and enforcement
The VCCR does not provide for a remedy in national courts for the failure of a host State to fulfill its consular notification obligation. Nor does the VCCR's Optional Protocol Concerning the Compulsory Settlement of Disputes specify such a remedy. The VCCR does not require the domestic courts of State parties to take any actions in criminal proceedings, either to give effect to its provisions or to remedy their alleged violation. Instead, the practice of States concerned about consular notification has been to follow a process of diplomatic communication and negotiation initiated by an aggrieved State.
As indicated above, States provide varying levels of consular assistance depending on a variety of factors, including whether the State regards such assistance as an important priority in the particular host country involved. By the same token, States vary in the degree to which they insist upon their rights under Article 36 vis-�-vis receiving States. Consular officers of a State that attaches priority to consular protection may seek to establish contacts with local law enforcement officials and others to make their availability and their interest in notification known. They may also call failures of notification to the receiving State's attention, to ensure that the receiving State seeks to improve compliance. Consular officials who are less concerned may do little to ensure that the mechanism established by Article 36 is working effectively. In this connection, the United States believes that the sending State has some responsibility to call to the receiving State's attention situations in which the sending State is dissatisfied with Article 36 compliance. U.S. consular officers, for example, are under standing formal instructions to raise issues of compliance with the receiving State. Conversely, when the United States hears little or nothing from a sending State about consular notification issues in the United States, it may fairly assume that the sending State is satisfied with the level of compliance, and in any event has no way of knowing if additional measures are required to improve compliance. Given the elaborate due process protections afforded to all criminal defendants by the U.S. judicial system, and the general freedom with which detainees in the United States may communicate with persons outside detention facilities, it is possible that many countries do not consider consular notification to be essential to the protection of their nationals when detained in the United States.
When a consular officer learns of and is concerned about a failure of notification, a diplomatic communication may be sent to the host government protesting the failure. While such correspondence sometimes goes unanswered, more often it is investigated either by the foreign ministry or the relevant law enforcement officials of the host government. If it is learned that notification in fact was not given, it is common practice for the host government to apologize and to undertake to ensure improved future compliance. To the best of our knowledge, no State has demanded a remedy outside of the diplomatic process until consular notification recently became a subject of dispute between the United States and certain other States concerned about death sentences imposed by U.S. courts in certain cases involving their nationals. Significantly, these States generally had not previously made U.S. compliance with consular notification requirements a significant issue in their diplomatic discussions with the United States.
V. U.S. Implementation of Vienna Convention Obligations
The United States regards its obligations under the VCCR as important ones that should be fully respected, and accordingly it seeks compliance throughout the United States. Within weeks of the entry into force of the VCCR in late December 1969, the State Department's Legal Adviser wrote each state governor to introduce the VCCR, to provide a copy of it, and to call the attention of state authorities to the most significant provisions relevant to them, including Article 36. In the ensuing years, the State Department conducted briefings on the VCCR, answered numerous inquiries from federal, state, and local authorities, and sought to educate such authorities further when foreign governments brought lapses of compliance to the Department's attention. In 1986, the Department issued and circulated a "Notice to Law Enforcement Officials" summarizing the consular notification and access obligations of both the VCCR and several bilateral consular conventions and providing a list of telephone numbers for foreign embassies and consulates throughout the United States. The Department of State mailed the "Notice" to the governor and attorney general of each state, commonwealth, and territory of the United States, with a request for its further dissemination, to the mayors and chiefs of police of every U.S. city having a population of 100,000 or greater, and to others upon request. The "Notice" was updated in 1989, 1991, and 1993 (primarily to reflect new information about consular representation in light of the dissolution of the Soviet Union and other countries) and was similarly distributed. In addition, throughout this period the Department of State continued to respond to regular inquiries from law enforcement officials throughout the United States on the consular notification and access obligations of the VCCR and bilateral consular conventions.
In 1997, the U.S. Department of State initiated a new effort to educate all federal, state, and local law enforcement and other officials about consular notification and access requirements. Since November 1997, when a State Department official addressed state and local law enforcement officials in Texas, at the invitation of the Attorney General of the State of Texas, the Department of State has conducted a wide variety of seminars and other briefings on these issues. Sessions have included officials of New Mexico, Arizona, California, Florida, and other states, as well as Texas. Additional outreach activities are planned in 1998 and beyond.
In addition, in January, 1998, the Department published a new manual of instructions for consular notification and access, entitled Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them. Copies of this manual have been shared with all embassies in Washington, some of which have indicated that it is more comprehensive than any guidance given by their own governments. More significantly, it has been made available to federal, state, and local law enforcement and judicial officials throughout the United States. To signal its importance, the Secretary of State wrote the governors of each state, commonwealth, and territory in February 1998, providing the manual and asking for assistance in ensuring that the consular notification obligation is brought to the attention of all state and local law enforcement authorities. The Department's Legal Adviser subsequently also corresponded with each state Attorney General, making an identical request, and asking that a state coordinator be appointed for consular notification and access. The manual is being provided to thousands of other officials directly, and is generally available on the Internet.
The focus of many of these recent efforts has been on the border between the United States and Mexico. This is a result of continuing, vigorous diplomatic dialogue between the two countries on such issues as intercountry migration and the provision of consular services to legal and illegal migrants and others. The U.S. effort to educate federal, state, and local law enforcement and other officials about the obligations in VCCR Articles 36 and 37 has been carried out, in part, in the context of the Border Liaison Mechanisms (BLMs) between Mexico and the United States. (As part of the BLM, the United States has also insisted on improved Mexican attention to consular notification and access with respect to U.S. citizens detained in Mexico.) The United States and Mexico also adopted a non-binding Memorandum of Understanding on Consular Protection of Mexican and United States Nationals in May 1996, which included specific precatory language on consular notification and access. This recent history of activities further illustrates the determination of the United States to implement Article 36 of the VCCR effectively.
VI. Consular Notification is Not a Prerequisite For the Exercise and Protection of Human Rights.
Notwithstanding the importance of consular notification, there is no support, either in the VCCR or in relevant human rights instruments, for Mexico's suggestion that the Article 36 consular notification obligation is a prerequisite for the observance and protection of human rights or that it gives rise to a judicially enforceable remedy. The VCCR may facilitate the observance of human rights in some circumstances, but that is not its underlying purpose. None of the international instruments invoked by Mexico -- the American Declaration, the Charter, or the ICCPR -- reasonably may be read to encompass a universal, judicially enforceable human right to consular notification.
Indeed, to find a "human right" in the treaty obligation to notify a detained foreign national of the further right to have a consular official notified of the detention would create profoundly illogical results. It would imply that a foreign national's human rights are violated regardless of his need for consular notification (e.g., he may already be aware of the option); regardless of his need for consular assistance (e.g., he may be a long-term resident who is, for all practical purposes, like a national of the host country); and regardless of what assistance might actually have been provided (e.g., his country of nationality might have provided no services at all). And, because the general requirements of consular notification and access pertain only if there are consular relations between governments (and the specific provisions of Article 36 pertain only between State parties to the VCCR), the Mexican proposal would imply that some individuals have greater human rights than others.
The rights of consular notification and access are in the first instance rights of States, not individuals. They are intended to benefit individuals by permitting -- not requiring -- States to offer them consular assistance. But they are not individual human rights that inhere in the individual, as such, independently of the relations between States. They cannot in any way appropriately be characterized as human rights.
A. The purpose of the VCCR is not to establish or protect individual human rights.
It is evident from a reading of the VCCR's many related provisions that the essence of the VCCR is not the elaboration or even the protection of individual human rights. Rather its intent and effect are to establish legal rules governing relations between States, not to create rules that operate between States and individuals. As noted above, the VCCR's text creates a body of international law rules regulating the activities of State parties as they engage in consular functions -- issues such as the establishment of consular relations, the appointment of consular staff, and various exemptions from host state regulation. The Preamble to the VCCR declares the understanding of the State Parties "that the purpose of such privileges and immunities [set forth in the VCCR] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States . . . ." The Parties also declared in the Preamble that a convention on the subject of consular relations and privileges and immunities would "contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems." Similarly, Article 36 is entitled "Communication and contact with nationals of the sending State" and is part of a larger section of the VCCR pertaining expressly to the "Facilities, Privileges And Immunities Relating To A Consular Post."
In sum, the VCCR's very terms emphasize that it articulates the rights of States and that it was not concluded, in the first instance, to protect the rights of individuals. Consistent with this, it should not be viewed as a source of individual human rights. In two phrases, indisputably, Article 36 expresses ideas in the vocabulary of "rights." But it is important to bear in mind that Article 36 does so, not because of any notion that a human right to notification existed or should be established, but because it reflects a compromise between those countries that advocated notification to consular officials of all detentions (sometimes known as "mandatory notification") and those who argued that notification should be made only when specifically requested by the detainee. Had mandatory notification been adopted, there would have been no reference in Article 36 to the right of the individual at all, and notification to consular officials would have occurred regardless of the individual's wishes. Opponents of mandatory notification argued primarily that it would place an unmanageable burden on host countries, given the inherent difficulties of compliance. Others were concerned that the privacy interests of the detainees would be ignored -- i.e., they were interested in preserving the individual's "right to privacy." Opponents of requiring notification only upon specific request were concerned that the detainee would not know that he could request notification. Ultimately, it was agreed that the detainee would be advised of the possibility of consular notification, and that notification to consular officials would be required if requested. Strictly speaking, therefore, the provision is a compromise between the State's right to consular notification and the individual's right to privacy vis-�-vis the State. This compromise was incorporated into the VCCR as a requirement to inform the individual of a "right" to have consular officials notified.
Certainly one purpose of the provision was to protect individuals by establishing a mechanism whereby their governments could undertake consular assistance, without going so far as to require consular notification in all cases. But nothing in this evolution of Article 36 supports the conclusion that the VCCR sought to establish a judicially enforceable human right of individuals, separate from the rights of their governments. It is an even greater leap to conclude that the VCCR establishes a human right essential to a criminal proceeding. It no more does so than do the numerous bilateral and multilateral treaties that States have entered into to further international investments. Indeed, those investment treaties, unlike the VCCR, clearly establish enforceable individual rights, yet equally clearly do not establish human rights.
B. Consular notification is not a prerequisite to protecting the human rights of individuals subject to criminal proceedings.
Consular notification may in particular circumstances assist in the vindication of human rights, but it is not a necessary precondition for their observance; indeed, human rights must be observed in the absence or the presence of consular notification, access, or assistance. Certainly the obligation of States to provide individuals with consular notification does not rise to the level of the human rights recognized in the provisions of the American Declaration, the OAS Charter, or the ICCPR.
In relevant part, Article 14 of the ICCPR guarantees individuals accused of crimes equality before the courts; a fair trial before a competent tribunal; and adequate time and facilities for the preparation of a defense. The American Declaration states (in Articles II and XXVI) that individuals accused of crimes are to be presumed innocent, afforded impartial judicial hearings, and treated equally before the law, without distinction as to race, nationality, sex, and other factors. Article 3(l) of the OAS Charter, which Mexico invokes, does not enumerate specific rights, but rather makes reference in more general terms to "the fundamental rights of the individual." This Court has interpreted this as referring to the rights set forth in the American Declaration. (See Advisory Opinion OC 10/89 of July 14, 1989.) All of the rights referenced in the Charter and relevant to this proceeding, as reflected in the American Declaration and the ICCPR, properly attach to all individuals who are detained and accused of crimes regardless of their nationality. In the United States, all of these rights are extensively safeguarded by means of elaborate provisions of national law, as described below.
Nothing in these international instruments suggests that there exists a human right to consular notification or that such notification is a necessary prerequisite to the exercise of the rights that these instruments enshrine. And nothing in these texts indicates that consular notification -- or even consular assistance -- is relevant to the fair trial protections which they explicitly enumerate. As noted previously, Mexico's characterization of the potential role of consular assistance is a speculative portrayal of what idealized consular officials might do. It bears no particular relationship to reality and has not been proven through evidence. But even were one to accept Mexico's hypothetical characterization, it provides no basis for transforming consular notification into a human right, any more than believing that a defendant would be better defended by the "best" lawyer than by a merely competent lawyer makes having the "best" lawyer a human right. This is particularly true because, unlike the right to legal counsel, there is no right to any degree or type of consular assistance at all.
Mexico has not produced evidence to substantiate its new and expansive reading of these instruments from their negotiating records. Nor, to the best of our knowledge, have international publicists familiar with the application of consular law and practice reached the unprecedented conclusions that Mexico has put before the Court. Consular notification has never been understood by the international community to be among the core protections required for the vindication of the human rights of detained persons. Indeed, given the discretionary nature of consular assistance and the limited ability of many governments to provide assistance to their nationals abroad, it would appear that the consular notification obligation could never attain such status. Moreover, to rely on consular notification or consular assistance to ensure respect for the human rights of defendants in criminal proceedings is contrary to, and would undermine, the fundamental obligation of States to honor true human rights. A host State is obligated to guarantee fair trial rights and due process protections to foreign nationals as well as citizens. This responsibility does not, cannot, and should not, depend on the consular intervention of other States.
C. Other means assure the effective protection of human rights in the United States.
The U.S. criminal justice system gives full effect to the important fair trial protections and procedural guarantees invoked by Mexico. These procedures and guarantees are not dependent upon consular notification, access, or assistance. The protections afforded individuals in the U.S. criminal justice system are among the strongest and most expansive in the world -- including in the Western Hemisphere. The U.S. Constitution -- which governs both federal and state criminal proceedings -- establishes a wide range of rights and legal protections for individuals charged with criminal offenses, as do other federal and state laws and regulations. These protections ensure that all persons, including foreign nationals unfamiliar with English or the U.S. judicial system, will have adequate interpreters and competent legal counsel who can advise them. Failure to honor these protections and guarantees can be corrected through appeals or other judicial remedies.
Among the most important U.S. constitutional protections are the following:
1. Criminal defendants are guaranteed the right to be tried before a fair and impartial tribunal under the Fifth and Fourteenth Amendments to the U.S. Constitution. Delaware v. Van Arsdall, 475 U.S. 673 (1986).
2. The Fifth and Fourteenth Amendments also guarantee that persons shall not be subject to discrimination by federal and state authorities based on their race, gender, ethnicity or national origin. Craig v. Boren, 429 U.S. 190 (1976); Loving v. Virginia, 388 U.S. 1 (1967); Bolling v. Sharpe, 347 U.S. 497 (1954); Korematsu v. United States, 323 U.S. 214 (1944); Yick Wo v. Hopkins, 118 U.S. 356 (1886).
3. Under the Fifth Amendment, authorities must inform detained persons of the privilege against self-incrimination (the "right to remain silent"). This privilege prevents authorities from incriminating a defendant with his own statements unless the individual has "knowingly and intelligently" waived this constitutional privilege. Waiver of this privilege would not be considered "knowing" if the defendant did not comprehend his rights, whether because of language difficulties, or for other reasons. Tague v. Louisiana, 444 U.S. 469 (1980); North Carolina v. Butler, 441 U.S., 369 (1979); Miranda v. Arizona, 384 U.S. 436 (1966); U.S. v. Villegas, 928 F.2d 512, 518 (2d Cir. 1991); U.S. v. Short, 790 F.2d 464 (6th Cir. 1986); LaFave & Israel, Criminal Procedure, sections 6.5 -6.9. (1984 and 1991 Supplement).
4. Under the Sixth Amendment, defendants are entitled to (1) be informed promptly, and in detail, of all charges made against them; (2) a public trial by jury in all criminal prosecutions; (3) effective legal representation -- supplied at public expense if they cannot afford an attorney; and (4) adequate time and opportunity to prepare a defense and consult with counsel. County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Jones v. Barnes, 463 U.S. 745 (1983); Duncan v. Louisiana, 391 U.S. 145 (1968); Gideon V. Wainright, 372 U.S. 335 (1963); Glasser v. United States, 315 U.S. 60 (1942); Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973); United States ex rel. Darcy v. Handy, 203 F.2d 407 (3d Cir. 1953); see also Federal Rules of Criminal Procedure, Rule 5.
5. Of particular importance to some foreign nationals is the fact that U.S. courts have interpreted the Fifth and Sixth Amendments to embrace the right to be assisted by an interpreter if a defendant does not understand English language proceedings. U.S. v. Lim, 794 F.2d 469 (9th Cir. 1986); U.S. v. Martinez, 616 F.2d 185 (5th Cir. 1980); United States ex rel. Negron v. State of New York, 434 F.2d 386, 389 (2d Cir. 1970). See also 28 U.S.C. section 1827; Federal Rules of Criminal Procedure,
6. While Mexico suggests that consular assistance is needed to ensure that evidence on the defendant's behalf is discovered, in fact U.S. courts have interpreted the Sixth and Fourteenth Amendments as providing a constitutional right to the assistance of investigators and experts where a particularized need for such assistance can be demonstrated. Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980); People v. Watson, 221 N.E. 2d 645 (1966); Note, 16 Wake Forest Law Review 1031, 1036 (1980) (collecting cases); LaFave & Israel, Criminal Procedure, section 11.2(d) (1984); Annotation, 34 A.L.R.3d 1256 (1970). This right has also been codified in federal statute. See 18 U.S.C. section 3006A(e)(1).
7. The ex post facto clause of the U.S. Constitution, Article I, Section 9, bars retroactive increases in the penalties available in criminal cases. The operation of this clause forbids the government from imposing a penalty (including the death penalty) on an offender for a crime that was not subject to such punishment at the time it was committed.
8. The death penalty may be carried out only under laws in effect at the time the crime was committed, subject to the extensive due process and equal protection requirements of the U.S. Constitution, and after exhaustive appeals. U.S. law provides special protections for those accused of capital offenses. For example, in addition to the usual requirements enumerated above:
--Automatic review of the conviction as well as the sentence is mandatory in nearly every state whose laws provide for capital punishment. Such review serves to safeguard against the possibility that capital punishment might be imposed capriciously, arbitrarily, or disproportionately. Gregg v. Georgia, 428 U.S. 153 (1976). Typically, review is undertaken regardless of the defendant's wishes and is conducted by the state's highest appellate court.
--In those few states not providing for automatic review, the defendant may elect to appeal the sentence, the conviction, or both.
-- The U.S. Supreme Court has determined that when a sentencing jury is empowered to impose either capital punishment or a sentence of life imprisonment, the jury must be informed whether, in the latter case, the defendant would be ineligible for parole. Simmons v. South Carolina, 114 S.Ct. 2187 (1994). This is because ineligibility for parole may cause a jury to recommend a life sentence instead of death.
--A state may not prohibit acts of executive clemency, including amnesty, pardon, and commutation of sentence. Gregg v. Georgia, 428 U.S. 153, 199 (1976). Such measures may provide relief from convictions that have been affirmed when no further recourse to the judicial process is available, including in cases where new evidence suggests the possibility of innocence. See Herrera v. Collins, 113 S.Ct. 853 (1993).
-- Persons who were under sixteen years of age at the time of the crime may not receive capital punishment in the United States. Thompson v. Oklahoma, 487 U.S. 815 (1988); Sanford v. Kentucky, 492 U.S. 361 (1989).
-- Both Federal and State law provide significant protection against the trial, conviction and punishment of individuals with significant mental infirmities or disabilities. U.S. law prohibits the execution of the insane. In many states, a defendant cannot be held responsible if he or she reacted to an "irresistible impulse" or is incapable of acting responsibly by reason of mental or emotional disability. Moreover, no one who is not mentally competent can be forced to stand trial in the United States. Similarly, an individual cannot be executed unless he or she is both aware of the punishment and of the reason why it is to be imposed. The legal standard for competence, together with the bar on the prosecution of the insane and the other defenses mentioned above, limit significantly the prosecution of persons with mental disabilities.
Foreign nationals in the U.S. criminal justice system enjoy all of these rights under international law and U.S. law. The United States and the several states of the United States are obligated to honor these rights, regardless of the status of consular notification, and regardless of whether defendants have received substantive consular assistance. If fair trial and due process protections have been violated, the affected individuals are entitled to judicial remedies, no matter their nationality, and no matter the status of consular notification. The failure to provide consular notification does not, however, violate these rights and protections, and cannot itself cause or constitute a violation of them. These rights must be provided in any event.
In its submission to the Court, Mexico expresses concern that the fair trial rights and due process protections of Mexican nationals in U.S. criminal proceedings will not be vindicated in the absence of consular notification. Mexico merely makes the point that consular assistance -- if and when it is provided -- may enhance the operation of the rights and protections traditionally recognized under international law. This could be true in a particular case, but it does not compel or even justify the legal conclusion that consular notification must be accorded the status of a human right that may be enforced through domestic legal systems to set aside otherwise valid convictions and sentences.
It is unnecessary, and it would be unwise, to create a universal presumption that failure to provide consular notification must invalidate subsequent criminal convictions. Such a presumption would be diametrically at odds with the VCCR and the practice of States, which do not link consular notification to the criminal process, and would ignore the large variety of real-world circumstances that may exist in a particular case. Moreover, whether or not consular notification has occurred, if there exists a question about the fundamental fairness of a judicial proceeding, or (in the United States) about compliance with one of the specific rights just described, the resulting inquiry properly focuses on whether such rights explicitly guaranteed by international instruments (and, in turn, by municipal law) have been violated. For example: Was the defendant's right to prepare an adequate defense given effect? And did the defendant receive the assistance of competent, effective counsel?
These are important questions. They can be answered only upon a proper judicial inquiry into the facts of each case in which a human rights violation has been alleged. Mexico confuses and distorts the inquiry by asking this Court to deem the failure to provide consular notification to be a violation of fair trial rights and due process protections per se -- that is, in every present and future case, without regard to the particular facts and circumstances. There is no basis for such an approach; the question of whether rights fundamental to a fair trial have been violated can only be answered by examining a particular case. The relevant case-specific considerations include such factors as the ability of a detained foreign national to comprehend English; the quality and character of the legal representation provided; and the need for, and presence of, interpreters and other forms of assistance.
If a defendant is treated fairly and with equality before the court, if he receives competent legal representation, and by such representation adequate time and facilities for the preparation of a defense, the failure to provide consular notification does not affect the integrity of the defendant's human rights. Thus, the Italian Supreme Court held that the failure of Italian authorities to inform British consular authorities of a British national's arrest was not of legal significance, because the defendant had received a fair trial and was able to prepare an adequate defense with the assistance of counsel.
By contrast, when the facts demonstrate that a defendant did not receive the benefit of fair trial and due process protections, an inquiry properly results and remedies may be appropriate -- again, without regard to consular notification. Indeed, it is possible for a defendant to receive consular notification, and possibly consular assistance, and nevertheless to have suffered a deprivation of his fair trial and due process rights.
Mexico has alluded to a number of cases in the United States in which it asserts that a failure of consular notification affected the outcome. The United States disputes the way in which particular cases have been characterized and, more generally, the alleged factual basis for the Mexican submission. As this is an advisory proceeding, however, it is neither possible nor appropriate for the Court to decide disputed characterizations of particular cases. It is certainly not appropriate in the context of an advisory opinion to place a burden on the United States to specifically refute these factual allegations, nor would this even be possible given the vagueness of some of the allegations made. Nonetheless, in order to illustrate that the fair trial and due process rights of defendants may be protected even though it appears that consular notification was not provided, the United States provides some information about a limited number of cases below. In none of the cases fully investigated by the United States to date was there a credible or compelling argument that the results of the criminal proceeding should be set aside merely because consular notification was not given.
In support of the claimed human rights status of consular notification, Mexico has also invoked specific cases in the U.S. criminal justice system in which Mexican consular authorities are said to have played significant roles in assisting Mexican defendants. These cases, too, are not properly before this Court, nor can they be. Moreover, the United States also does not accept Mexico's characterization of them. In any event, however, as we have previously noted, the fact that consular assistance may be beneficial in a given case does not lead to the conclusion that human rights would otherwise be denied or that consular notification is a human right. Many forms of assistance may be beneficial to criminal defendants, including access to the best defense counsel or the resources to hire the best experts.
The fact that a particular form of assistance, including consular assistance, may be of value does not make notification of its existence, or even access to it, a human right whose absence invalidates a conviction. Simply put, the fact that consular authorities may be able to provide useful assistance to defendants in certain cases is neither sufficient nor persuasive reason to declare that consular notification is a universal prerequisite to the observance of human rights or to a valid criminal conviction.
In sum, the United States submits that the fairness of a criminal proceeding must be judged by the standards which States have embraced in the American Declaration, the ICCPR and other international human rights instruments to which they are parties, and which are reflected in municipal law. The fair trial rights and procedural protections recognized in these instruments are specific, and their scope is well understood. None can reasonably be read to encompass or depend upon a consular notification obligation. Indeed, neither the text nor the negotiating record of the VCCR suggests that it was intended to make the absence of consular notification a universal basis for invalidating national criminal proceedings. A fortiorari there is no basis for doing so with respect to some criminal proceedings, such as those involving the death penalty, but not others.
D. Claims that consular notification might have altered the outcome of past cases are speculative and improbable.
Mexico has suggested that there are numerous cases in the United States in which foreign nationals were unfairly sentenced to death because they were not informed of their right to have a consular official notified of their detention. As noted, this is not intended or permitted to be a contentious proceeding, and it would be inconsistent with jurisdiction of this Court for it to attempt to make findings about specific cases involving the United States and Mexico, much less to do so in the absence of full information about those cases. The United States in any event cannot address the specific factual dimensions of Mexico's claim, as Mexico has not identified particular criminal proceedings. Nevertheless, we discuss here briefly two cases involving Mexicans in which death penalties have been carried out by states of the United States and in which it appears that consular notification was not provided, to illustrate for the Court why Mexico's broad claims cannot be accepted.
Irineo Tristan Montoya: Tristan Montoya received the death penalty for murdering an American who gave him and a co-defendant a ride in his vehicle. The victim's vehicle was found in Mexico by Mexican law enforcement authorities and returned to Brownsville, Texas. Within 24 hours of his arrest, Tristan Montoya was advised in Spanish three times of his right to legal counsel and to remain silent, as required by the U.S. Constitution. He waived both rights and gave a statement to authorities confessing to participating in the murder. There is no basis for concluding that consular notification would have affected this result. As explained above, international law does not require that criminal investigations or proceedings stop while consular notification is provided.
Even if Tristan Montoya had asked that consular authorities be notified of his detention, there is no basis for assuming that he would not have confessed. Assuming consular officials had been notified of the detention within the first twenty-four hours, whether and when a consular visit would have occurred is pure speculation. The burdens on Mexican consular officials in Texas were -- and remain -- substantial. Moreover, Mexican consular authorities became involved in Tristan Montoya's case in 1986, after his conviction and sentencing, yet Mexico did not raise the issue of consular notification with the United States until 1996, ten years later, when Tristan Montoya's execution became imminent. Had Mexico viewed the failure of notification as critical, surely it would have raised the issue with the United States far earlier.
Mario Benjamin Murphy: Murphy was a lawful permanent resident alien in the United States who was executed for participation in a 1991 murder-for-hire. At the time of the murder, he was 19 years old and had lived in the United States for 15 years -- almost his entire life. Murphy was fluent in English and his stepfather was an American citizen. Moreover, prior to his arrest for murder, Murphy had been involved in previous criminal proceedings in which he was represented by a lawyer. He was therefore familiar with the U.S. criminal justice system, as well as with the United States and its culture. Upon his arrest, and after being informed of his right to counsel and his right to remain silent, Murphy waived his right to legal counsel, made a full confession, and then spoke to the news media. Thereafter, he requested as legal counsel the experienced criminal attorney who had represented him in previous proceedings. Thus, a significant goal of consular assistance -- ensuring that a foreign national is represented by legal counsel -- was met. To the extent that consular officials may also facilitate communication with family members, this goal was also met. Murphy's family lived in the area and participated in his defense. He had access to friends and family in the United States and Mexico.
Mexico would have the Court conclude that consular notification would have led to a different outcome in these cases. There is no sound basis for such a conclusion and the Court should not enter into such speculation. It is impossible to know what level of consular assistance might have been provided had it been requested in a particular case. Nor is it appropriate to attempt to engage in fact-finding on this issue. It would be unworkable for this or any court to attempt to determine reliably what a consular officer would have done and whether it would have made a difference. Doing so accurately would require access to normally inviolable consular archives and testimony from consular officials notwithstanding their usual privileges and immunities. (See footnote 20, above.) In the above cases, for example, one might wish to examine Mexico's consular instructions and practices as of the time when the nationals were arrested and inquire into the resources then available to its consular officers. Such questions would have to be examined pursuant to a satisfactory waiver of privileges under the VCCR before a court could reliably decide what effect, if any, consular notification might have had.
E. Consular notification has no special role in cases involving application of the death penalty.
Mexico has stressed its concern regarding cases involving potential application of the death penalty. It has suggested that special protections should be extended to criminal defendants who may be sentenced to death. While the United States believes that the death penalty may be imposed in appropriate cases in a manner consistent with international law, it agrees that, because the death penalty constitutes the most serious and irreversible sanction, it may be handed down only in strict accordance with the protections for criminal defendants recognized under law. Accordingly, in addition to the expansive fair trial protections noted above, federal and state laws in the United States provide for exhaustive appeals of death sentences both at the state and federal levels and for the other special procedural rules that govern the imposition of the death penalty also described above. These are consistent with Article 6 of the ICCPR, which sets forth standards regarding the imposition of the death penalty.
Mexico asks the Court to go beyond these recognized standards and guarantees and to enshrine a new human right to consular notification, without which the death penalty cannot lawfully be prescribed. Mexico has not argued and cannot demonstrate, however, that the numerous and rigorous protections already provided to defendants in capital cases in the United States are insufficient under international law. In the absence of textual support in the VCCR or in relevant human rights instruments, the Court should not accept Mexico's invitation. The imposition of a death sentence is indeed a most serious matter, but the appropriate limitations and procedural requirements applicable to its imposition are those fair trial rights and procedural guarantees already enshrined in law. Moreover, it is difficult to see how standards for the protection of human rights can properly be set at a much higher level in death penalty cases than in other equally or more serious cases that, because of the specific differences among national criminal justice systems, may lead to penalties other than death, such as life or other lengthy imprisonment; or indeed than in any other criminal matter. If the right to consular notification is essential to the protections of human rights, then it properly attaches, at a minimum, in any legal proceeding which threatens a significant deprivation of a defendant's liberty.
Moreover, it cannot be said that cases involving the possible imposition of the death penalty are the only cases in which arrest and imprisonment of a foreign national can have potentially the most serious consequences. As noted above, for example, one of the well-established objectives of consular assistance is to monitor how an individual is treated while in detention. Even leaving aside cases of potential torture or abuse by detaining authorities, persons may die or suffer permanent impairment in prisons for a variety of reasons, such as lack of effective or even minimally adequate medical care. National authorities may rely on relatives or friends of prisoners to provide supplemental food or other needed items, and foreign national prisoners may lack access to such resources. Consular assistance in such cases could also help. Yet even in these circumstances, it has not been considered that consular notification and access are human rights, or that sending States have an obligation to provide consular assistance to their detained nationals.
F. Mexico's argument has serious implications for the criminal justice systems of VCCR parties.
Mexico's legal arguments concerning procedural guarantees and consular notification cannot be limited to cases in which the death penalty is at issue. If the Court were to follow Mexico's suggestion, it would call into question the basic fairness and sufficiency of any criminal proceeding potentially resulting in significant imprisonment, in which consular notification regrettably did not occur -- even if the defendant was served by competent counsel, investigators, and translators. There is no basis in international law, logic, or morality for such a judgment and for the resulting disruption and dishonor to the many States parties to the VCCR.
VII. The Failure to Provide Consular
Notification Is Not Discriminatory and Does Not Violate the Right to Equality Before the Law.
In its request, the Government of Mexico makes reference to the rights to non-discrimination and equality before the law. One must ask, therefore, in what respect and under what circumstances the failure to provide consular notification bears on either of these rights.
Consular notification by its nature comes into play only in relation to persons who are not citizens of the host State; citizens of the host State obviously do not require consular notification. Accordingly, discrimination in relation to consular notification per se must necessarily consist of discrimination as between persons of respective nationalities. That is, it would be discriminatory to advise of the possibility of consular notification with respect to persons of one nationality but not persons of another nationality, if this was a deliberate practice based on the grounds of nationality.
Nonetheless, such discrimination could be justified on the basis of different arrangements or agreements between the respective States involved. For example, if there were no consular relations between two States, citizens of one State who are imprisoned in the other need not be advised of the possibility of consular notification, because of their nationality. As noted above, it follows that the failure to advise of or to provide consular notification is not a violation of equality before the law, because international law does not require consular notification where there are no consular relations.
We do not understand the Government of Mexico to be raising the question of discrimination or equality as between persons of differing nationalities, however. Rather, it appears that the question of possible discrimination or inequality is raised as between citizens of the State which is responsible for the detention and citizens of other States. In this context, it is not the presence or absence of consular notification which is relevant (since consular notification is never given to nationals of the detaining State). Rather, the question is whether there is discrimination or unequal treatment with respect to the enjoyment of recognized due process and other relevant rights.
Foreign nationals are entitled to the same access to courts, and the same treatment before the courts, as are citizens of a host country. The U.S. Constitution enshrines this principle in its Fifth and Fourteenth Amendment, as do the constitutions of the constituent states of the United States. For a nation of immigrants, the avoidance of discrimination on the basis of nationality or national origin has long been recognized to be of particular importance, warranting the highest standards of protection.
Mexico's submission appears to suggest, however, that foreign nationals merit special protections of their human rights, above and beyond those applicable to citizens of a host State. Mexico has invited the Court to declare the existence of a special form of human rights protection that benefits only a narrow class of persons detained in a foreign country -- foreign nationals of States that have consular relations with the host State.
While it is recognized that special measures in some cases may be appropriate to ensure the adequate and effective enjoyment of human rights, this analysis is highly case- and fact- specific. One cannot simply assume that a foreign national will not effectively enjoy his or her rights without special measures being taken. The needs and circumstances of foreign nationals may vary dramatically; they do not comprise a unified class. Individuals visiting a host country for one or two days may be entirely unfamiliar with the language and customs, while permanent residents may have lived in a host country virtually for their entire lives. Moreover, the kinds of difficulties which foreign nationals may face in some cases, such as unfamiliarity with English or with the U.S. legal system or the need for access to information located in a foreign country, are difficulties which may confront U.S. citizens in their own country as much or even more than any specific foreign national. Accordingly, this Court should reject any conclusion that the right to non-discrimination or equality before the law is violated per se on the basis of nationality. Ultimately, the suggestion that foreign nationals merit special rights is itself contrary to the principles of non-discrimination and equality.
For the reasons stated above, the United States submits that the Court should decline Mexico's invitation to rule that the individual rights and protections applicable in criminal proceedings and expressed in the American Declaration, the OAS Charter and the International Covenant on Civil and Political Rights encompass a human right to consular notification; that notification must be given at the time of arrest or before a statement is made by the detainee; and that any particular remedy is required when the death penalty is imposed in cases involving failures of notification.
Instead, the Court should conclude that:
1. Compliance with the consular notification requirements of Article 36 is important and all States party to the VCCR should endeavor to improve their compliance.
2. Consular notification is not a human right, as such, but rather a duty of States that have entered into consular relations with other States that is intended to benefit individuals as well as States.
3. Consular notification does not imply a right to or require any particular level of consular assistance.
4. Where consular relations exist between States, consular notification nevertheless may result in consular assistance that could assist a foreign national who is subject to criminal proceedings in the receiving State.
5. The essence of the individual rights and protections applicable in criminal proceedings is as expressed in the American Declaration, the OAS Charter, and the International Covenant on Civil and Political Rights.
6. All persons are entitled to fair criminal proceedings, regardless of the penalty that may be imposed, and foreign nationals must be accorded fair criminal proceedings regardless of whether they receive consular notification.
7. The failure of a host State to inform a foreign national that consular authorities may be notified of his detention may properly result in diplomatic measures that seek to address such a failure and improve future compliance; in any event, the appropriate remedy for a failure of notification can only be evaluated on a case-by-case basis in light of the actual practice of states and the consular relations between the states concerned.
David R. Andrews
Legal Adviser, United States Department of State