Analysis: What is left of the Vienna Convention?

The Supreme Court’s 5-4 ruling Wednesday on foreign nationals’ right to seek the aid of a consular officer from their home country after they are arrested and charged in the U.S. leaves two specific questions unanswered under the more general inquiry of whether anything of real substance remains of the Vienna Convention on Consular Relations.

The first question is when, and how, the Court might reach and settle definitively whether individuals may sue to enforce rights supposedly protected by the Convention. The second question is what impact the decision will have on President Bush’s attempt to force states to obey the Convention as intepreted by the World Court.

In its ruling in Sanchez-Llamas v. Oregon (04-10566) and the companion case of Bustillo v. Johnson (05-51), the Court did not answer the first question, but simply assumed for the time being that the Convention might be enforceable in private challenges to denial of access to a consular officer. The Court never directly mentioned the second question, but that controversy is unfolding in a pending case in the Texas Court of Criminal Appeals, and may ultimately reach the Court.

The Vienna Convention, adopted in 1963 with the strong support of the U.S. government, requires police in a country that has joined the Convention to give an arrested foreign national prompt notice that he or she may contact a consular officer from the home country. It is a guarantee that, in practice, is widely ignored by state and local police, but that indifference has led to significant international controversy, with two major rulings from the World Court on nations’ duties to obey the Convention’s mandate. The Bush Administration has pulled the U.S. out of a protocol of enforcement, but has advised states holding a group of Mexican nationals covered by the most recent World Court ruling to give those individuals some way to mount a challenge to their convictions for Convention violations.

Wednesday’s ruling, written by Chief Justice John G. Roberts, Jr., did settle two issues about the obligation of states to enforce the Convention. The majority decided that states need not allow foreign nationals to raise a claim of denial of consular access if those individuals fail to do so before or during trial, and only seek to raise it after convictions have become final — a point at which many states regard the claim as having been forfeited. Since individuals claiming violations of the U.S. Constitution or of a U.S. federal law can be barred by such “procedural default” rules from raising their claims, the Court said, those asserting a Convention violation may be, too. “It is no slight to the Convention to deny…claims under the same principles we would apply to an act of Congress, or to the Constitution itself,” the Chief Justice wrote.

That part of the ruling is expected to head off many claims of breaches of the Convention. But, even if a foreign national has not forfeited such a claim, and shows a denial of access, the second part of the decision Wednesday may rule out a significant remedy. In that part of the ruling, the Court concluded that suppression of evidence — such as a confession to police — is never required as a remedy. The Convention itself does not require suppression, but relies for remedies upon nations’ domestic laws. And, the Court found, no domestic legal concept supports suppression. “We do not hold a supervisory power over the courts of the several states,” Roberts noted.

The Chief Justice’s opinion does suggest some alternative remedies: “A defendant can raise [a claim of violation] as part of a broader challenge to the voluntariness of his statements to police. If he raises [it] at trial, a court can make appropriate accomodations to ensure that the defendant secures, to the extent possible, the benefitts of consular assistance. Of course, diplomatic avenues — the primary means of enforcing the Convention — also remain open.”

There is no way to predict, at this point, when a case would again reach the Court in a posture that would allow it to decide in an explicit way whether the Convention can be invoked at all by an individual who has not been found to have forfeited the claim. It is fairly typical in cases of foreign nationals that they do not become aware of the Vienna Convention until after they have been convicted. (The State Department is trying to fill that information gap by urging state and local police to tell foreign nationals about the Convention, but it cannot coerce compliance.)

If diplomacy is going to be the primary means for carrying out the obligations of the
Convention, it may be significant that the Bush Administration has backed out of the protocol, and thus may have little incentive to exert significant efforts to encourage states to go along with it — at least beyond the State Department’s informational efforts.

And, even if the Administration were more enthusiastic about or committed to enforcement of the Convention on behalf of individuals caught up in state and local law enforcement, its authority to do so may be in doubt. That is the issue that is lingering in the still-pending case in Texas state courts, as a sequel to the Supreme Court’s action last year in Medellin v. Dretke, declining to decide an earlier test of state defiance of the World Court rulings.

Although withdrawing the U.S. from the Vienna enforcement protocol, President Bush did say that states holding an identified group of Mexican nationals should find a way to hear their Convention violation claims. But the state of Texas is energetically resisting that command, in the continuing litigation over Jose Ernesto Medellin, a Mexican national. (An earlier post on that case can be found here.)

The Court’s ruling on Wednesday does not offer any definitive views on that controversy. But the Chief Justice’s opinion may perhaps give the state of Texas some encouragement. Noting the President’s decision to withdraw from the enforcement commitment, Roberts wrote that, whatever the effect of the World Court rulings on Convention enforcement before that withdrawal, “it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States.”

That comment, if noticed by the Court of Criminal Appeals, might bolster any inclination it has to resist the President’s argument that the Supremacy Clause requires Texas to obey the World Court’s rulings.