Split Widened: Is Consular Notification (Or Notification Of the Availability Consular Notification) An Actionable Individual Right?

Per Mora v. People of N.Y., 2008 WL 1820836 (2d Cir. Apr. 24, 2008)

Medellin made waves when came down, but it turns out the Supreme Court in that case (as with others before it) did not decide an issue that had split the circuits: Whether the Vienna Convention’s provision requiring police officers to notify detainees that they could communicate with their consulate. Instead a majority of the court Court assumed, without so holding, that the Vienna Convention did so. The Circuits have split on this issue. The CAs 4,5,6,9, and now 2 hold that the Vienna Convention does not create judicially-enforceable rights, whereas the CA 7 holds that it does. The separate question of whether the Vienna Convention is self-executing was not raised in this case.

Article 36(b) provides: “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, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;”

The CA 7 says that this language is clear that it creates an individually enforceable right; how else can you read “of his rights.” Moreover, the CA 7 argues, this is clearly not a right conferred on the sending State, because its exercise depends on the request of the detainee. As final support for its position, the CA 7 looks to State Department circulars, and DOJ regulations referring to Article 36 as providing an individual right.

The CA 2 disagrees, noting that the obligation to inform a detainee of his rights is, itself, never phrased as a right; nor does this or any other provision of the Vienna Convention state whether private individuals can pursue judicial enforcement of the treaty in the domestic courts of the States-party. The CA 2 also relies on the Preamble to Article 36 and the Convention as a whole, which disclaim any purpose to benefit individuals. Finally, the State Department submitted an amicus brief in conjunction with the Department of Justice urging the conclusion that the Convention does not confer a judicially-enforceable individual right. The CA 2 says the views of the Executive concerning treaty interpretation are entitled to great deference.

As an interesting aside, the panel requested the United States to provide information regarding other states’ practices with regards to private suits for money damages for violations of Article 36. 91 countries replied, 90 of which do not permit such suits to go forward. In addition, the State Department informed the panel that only a handful of countries had interpreted Article 36 as providing an individual right. The opinion does not state, however, how many of the countries had interpreted the Article the other way (i.e. if the handful was 100% or 10% of the countries to have considered the question). Such state practice is meaningful in the interpretation of treaty obligations.