Sanchez-Llamas v. Oregon: Recent Developments Concerning the Vienna Convention on Consular Relations
Publication Date: August 2006
Publisher(s): Library of Congress. Congressional Research Service
The Vienna Convention on Consular Relations (VCCR) is a multilateral agreement codifying consular practices originally governed by customary practice and bilateral agreements between States. Pursuant to Article 36 of the VCCR, when a foreign national of a signatory State is arrested or otherwise detained, appropriate authorities within the receiving signatory State must inform him "without delay" of his right to have his consulate notified. Nevertheless, foreign nationals detained by U.S. state and local authorities are not always provided with requisite consular information.
Until March 2005, the United States was also party to the VCCR's Optional Protocol Concerning the Compulsory Settlement of Disputes. Parties to the Optional Protocol agree to accept the jurisdiction of the International Court of Justice (ICJ) to resolve disputes arising between nations with respect to the VCCR. Prior to U.S. withdrawal from the Optional Protocol, the ICJ ruled in the LaGrand Case (Federal Republic of Germany v. United States) and the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) that Article 36 confers an individually-enforceable right to consular notification. Further, the ICJ concluded that procedural default rules should not, at least in certain circumstances, bar the raising of Article 36 claims by foreign nationals who were not provided with requisite consular information and were subsequently convicted in criminal proceedings.
In the consolidated cases of Moises Sanchez-Llamas v. Oregon and Bustillo v. Johnson, decided on June 28, 2006, the Supreme Court considered arguments as to what judicial remedy, if any, is available to foreign nationals in U.S. criminal proceedings who are not provided requisite consular information. By a vote of 5-3 the Court held that (1) suppression of evidence in a criminal proceeding is never an appropriate remedy for an Article 36 violation; and (2) federal and state procedural default rules prevent the raising of Article 36 claims that were not made on a timely basis. Although the Court considered the ICJ's interpretation of Article 36 as deserving respectful consideration, it did not deem it to be legally binding or necessarily persuasive. The Court did not determine whether Article 36 creates an individually-enforceable right. Nor did the Court assess the legal implications of the President's 2005 memorandum instructing state courts to give effect to the ICJ's decision in Avena with respect to the 51 Mexican nationals at issue in that case.