Consuls at work: universal instruments of human rights and consular protection in the context of criminal justice.
II. THE PROTECTION OF NATIONALS BY CONSULS UNDER
CONSULAR AGREEMENTS AND PRACTICES
A. Consular Protection Before the Vienna Convention
B. The Vienna Convention on Consular Relations
C. Consular Protection and Access to a Consul
III. HUMAN RIGHTS AT STAKE
A. Human Rights and the United Nations Charter
B. The Universal Declaration of Human Rights
C. The Universal Declaration and the Administration of
D. The International Covenant on Civil and Political Rights
IV. CONSULAR PROTECTION AND HUMAN RIGHTS IN UNITED STATES LAW
V. THE APPLICATION OF THE VIENNA CONVENTION IN UNITED
STATES DOMESTIC COURTS
A. The Faulder Case
B. The Montoya Case
C. The Murphy Case
D. The Breard/Paraguay Cases
Improvements in transportation have increased the number of foreign travelers going abroad for business, labor, and tourism.(1) In rare instances, such travelers may find themselves detained in a foreign country for alleged criminal conduct. Foreigners arrested or imprisoned abroad are certainly disadvantaged--especially for persons whose economic, social, and cultural condition make them particularly vulnerable to abuses.(2)
Criminal prosecution in a foreign country could significantly reduce the possibility of a fair trial. This danger multiplies for defendants not fluent in the local language or whose understanding of the foreign legal system is tacking.(3) The picture becomes more threatening in countries where the prosecution may still impose the death penalty.(4)
Undoubtedly, depriving a foreigner of their liberty in a strange country involves numerous aspects of basic human rights law. International law guarantees the protection of fundamental norms such as the right to be free from arbitrary deprivation of physical liberty during the administration of criminal justice--an area where violations often occur.(5) In such cases, the opportunity to speak with a consul could significantly affect the legal situation of aliens arrested and imprisoned in foreign countries. This right of consular access has been specifically guaranteed in international conventions and bilateral treaties.(6) Moreover, the right to contact a consul is well settled in international practice.(7)
Unfortunately, the protection offered by a consular officer of the alien's country of origin is often disregarded.(8) Unfamiliarity with international law and, more particularly, ignorance of both immigrants and police agents regarding consular tasks and responsibilities are usually to blame for the deprivation of the right to a consul.
Both United States law and international law protect the right to have access to a consul.(9) Moreover, when a foreign national faces judicial proceedings in a strange country, several basic human rights are implicated: including the right to due process, adequate counsel, and an interpreter. Many of these rights are also guaranteed by the United States Constitution and enforced by United States courts.(10)
From a humanitarian point of view, the right to a consul also has important implications. The scope of consular protection covers not only the legal aspects of a national's detention or trial, but also more personal issues. As the U.S. Department of State noted in an official communication, "[t]he Consul's presence may also help assuage the distress of detained nationals."(11) The consul thus represents familiarity. The presence of a fellow national who speaks the same language gives great psychological relief to distressed nationals detained in strange environments.
This article examines relevant aspects of consular protection derived from international treaties, customary international law, human rights agreements, and the United States legal system. Because consular practice is based in international law, it will become apparent that several existing human rights instruments of universal coverage appear to protect the right to a consul. Additionally, adequate basis exists to support the argument that this protection should be enforced through the United States' legal system and the domestic courts--particularly in the capital punishment sphere.
The article begins with an examination of consular protection in customary international law and early bilateral agreements, culminating in a discussion of the Vienna Convention on Consular Relations--the foremost international instrument in the field. Next, Part III analyzes the provisions of several human rights agreements relating to consular protection. The foundations for consular protection of foreign nationals under United States' law is briefly discussed in Part IV. Part V introduces a novel legal argument currently developing in several pending death penalty cases. In these examples, inmates on death row are asking for various forms of state and federal relief due to alleged violations of their right to consul guaranteed by the Vienna Convention on Consular Relations. The final section offers some practical solutions concerning how the right of access to a consul could be enforced in the context of the United States' legal system.
II. THE PROTECTION OF NATIONALS BY CONSULS UNDER CONSULAR AGREEMENTS AND PRACTICES
The consular institution is one of the oldest in international relations.(12) The protection of nationals, whether natural or legal persons, in foreign countries is arguably one of the foremost purposes of consular representatives.(13) In fact, this objective could well be regarded as the underlying objective for all other functions performed by consuls in the interest of the sending State.(14)
In this respect, two main theoretical approaches exist on the issue of whether a person has the right to demand protection of his consul.(15) Some states believe their consular representatives have the duty to provide the necessary protection to co-nationals, while others maintain that consular protection is a matter of strict discretion on the part of the state of nationality.
France, Mexico, the United Kingdom, and the United States have adopted the former view to varying degrees.(16) French consuls are required "to aid their nationals in the attainment of judicial equality and fairness and, in case of expulsion ... to demand explanation from the local authorities."(17) Consular protection by Mexican consuls includes assistance and advice to Mexicans in their dealings with local authorities, visiting Mexicans in detention, prison, hospitals, or assistance in any other difficult situation, and representing Mexicans who are incapable of handling their own affairs.(18) Even before the adoption of the Vienna Convention, British Foreign Service officers had the duty to "watch over and take all proper steps to safeguard the interests of British subjects and British protected persons within his district."(19) Likewise, once United States citizenship is unquestionably established, United States consuls have a duty to protect nationals.(20)
Brazil and Hungary have similar views. According to Brazilian laws, not only do Brazilian consular representatives have the duty and right to assist and protect Brazilians and to see that their rights are respected, but citizens have the right to demand such protection when abroad.(21) The right of Hungarian citizens to enjoy the protection of the Republic of Hungary during their legal stay abroad is guaranteed in the 1989 Hungarian Constitution.(22)
Illustrative of the second position is the Canadian practice. According to the Canadian Consular Manual, the protection of nationals is a "high priority" function of the Canadian government and its consuls have "a mandate to protect and assist Canadians who live and travel abroad and to respond promptly when they find themselves in distress."(23) However, "[m]ost Consular services are provided as a matter of discretion by virtue of the royal prerogative [and] except as provided by statute, no one is entitled to claim such services as a matter of legal right."(24) Thus, the Canadian Secretary of State for External Affairs can, in his discretion, withhold protection and assistance to nationals.
Similarly, the Netherlands maintains that neither international law nor Dutch law allow nationals to demand consular protection of their interests abroad.(25) Thus, in the case of a clash between the protection of a national and the interest of the state, the question of whether such protection should be withheld "must as a rule indeed be a matter for the authorities to decide from case to case."(26)
Nevertheless, it has been suggested that the two general positions are not irreconcilable.(27) Although most countries accept the duty of their consular representatives to protect and assist nationals in accordance with international law and the laws of the receiving State, this duty is general in character and no specific action is enforceable at the request of an individual.(28) Consequently, the duty to protect is a non-justiciable duty.(29) Nonetheless, as will be discussed later, the right to communicate with a consul, and thus to obtain the protection of the sending State, could be enforced from a human rights perspective.(30)
A. Consular Protection Before the Vienna Convention
Long before the adoption of the Vienna Convention on Consular Relations,(31) the law governing protection of nationals was developed through bilateral agreements between nation-states.(32) Pre-Vienna Convention consular agreements regulate, with more or less detail, matters related to the establishment of consular posts, the appointment of consular staff, privileges and immunities of consular officers, and the scope of consular functions--giving consular law its distinctive conventional-based character which persists today.(33) Consuls are also authorized to contact local authorities for information regarding the situation of nationals and to lodge protests when their national's rights have been violated by the receiving State.(34)
Shortly before the adoption of the Vienna Convention, treaty provisions concerning consular protection and the protective role of consuls could be found in practically every consular agreement.(35) By the end of the 1950s, the protection of nationals by consuls had been included in many consular treaties concluded between the Soviet Union and numerous bordering countries in Eastern Europe and Asia.(36)
As a logical complement of the protection tasks performed by consular representatives, they also have the duty to render aid and assistance to their nationals in the receiving State according to the circumstances.(37) Consular assistance may take different forms.(38) A consul may help his co-nationals by giving them information and advice on local proceedings, representing them before local authorities, or providing the assistance of a lawyer or an interpreter when facing judicial procedures.(39) Consuls also have the right to visit and interview nationals of the sending State detained or imprisoned in the receiving country and to verify the conditions of their stay in local police stations or jails.(40) They may also protest and seek redress when a wrong is committed against a citizen by local authorities.(41) Furthermore, consuls have a special role in the safeguarding of persons with special needs or limited legal capacity, such as minors, handicapped, and elderly nationals.(42)
Essential to the fulfillment of these protective functions is the consul's right to learn immediately of the detention of any of his compatriots.(43) Upon notification, a consular officer may take a variety of actions to provide protection for a fellow national.(44)
B. The Vienna Convention on Consular Relations
Although there were several efforts at the academic and inter-state level to codify consular law,(45) the 1963 Vienna Convention is the most important instrument on consular relations to date.(46) Negotiated under the auspices of the United Nations' International Law Commission, the Convention was unanimously adopted by the participating States on April 24, 1963, in the Austrian capital.(47) When the Convention entered into force on March 19, 1967, more than 100 states became bound by its terms.(48)
The success of the Conference is self-explanatory. "As the first conference of this kind participated in by states with diverse national, regional, and ideological interests, the fact that a convention was concluded at all was in itself a remarkable feat."(49) The merit of the Convention is even more significant considering it had no great precedent to follow.(50) Apart from several customary rules of international law, bilateral treaties (frequently with conflicting provisions), and a few regional treaties, the task of the Conference had no settled basis with which to begin.(51)
The codifying nature of the Vienna Convention, both with respect to existing and newly propagated rules, has a double character.(52) On the one hand, it codifies existing customary consular law--the product of state practice and historical development.(53) On the other hand, it completes and develops customary law, incorporating new rules originating from conventional sources.(54) This dual nature of the Convention has a significant impact on the legal nature of the norms it codifies. As to customary rules, the Vienna Convention is binding on all states, including those which are not signatories to the instrument.(55) As to the rules of conventional origin, the Convention is binding only on states which are parties to it.(56)
Notwithstanding the non-binding nature of the provisions originating at the Convention, the success of the Convention and its near universal acceptance(57) certainly influences state practice and patterns of legal expectation.(58) In a communication to the Syrian government concerning the detention of two Americans by local authorities without granting them the right to contact the American consul in Damascus, the U.S. Department of State referred to the Convention as "widely accepted as the standard of international practice of civilized nations, whether or not they are parties to the Convention."(59)
In any event, the Preamble to the Convention leaves the regulation of matters not expressly covered by the Convention subject to customary rules of international law.(60) Regarding consensual rules, the Convention does not affect the consular agreements effective between state parties before its adoption. Article 73 expressly recognizes the validity of all agreements, whether bilateral or regional, existing at the time the Convention came into force.(61) Moreover, Article 73 authorizes other international agreements between states "confirming or supplementing or extending or amplifying the provisions" of the Convention.(62) In this sense, the Convention represents a general framework of minimum standards which states are encouraged to further develop.
The Convention faced one of its major challenges in defining standards for consular functions. The duties of a consul vary substantially among countries and particularly according to the circumstances of each case.(63) It was difficult for the participants at the Conference to set fixed standards defining the exact scope of consular action. Nevertheless, the Convention attempted to enumerate many of the essential functions of a consul.(64)
According to Article 5 of the Convention, consular functions include inter alia: the protection and assistance of co-nationals in the sending State; the protection of the interests of the sending State and of its nationals, both individuals and bodies corporate, in accordance with the laws of the receiving State; the protection of the interests of minors and other persons lacking full capacity who are nationals of the sending State, within the limits imposed by the laws of the receiving State; the representation or arrangement of appropriate representation for co-nationals before local tribunals and other authorities insofar as the laws of the receiving State permit; and the assistance of vessels, aircraft, and their crews having the nationality of the sending State in accordance with the laws of the sending State.(65) Moreover, consuls have judicial-type duties such as acting as notaries and civil registrars, the transmission of judicial documents, and certain administrative functions such as the issuance of passports, visas, and travel documents.(66)
However, as the text of the Convention recognizes, the list is not intended to be exhaustive and consuls can perform functions "which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State . . . ."(67) In the cases of protection of nationals, the flexibility granted by this provision proves to be fundamental.
C. Consular Protection and Access to a Consul
Consular functions aim to protect the interests of the sending State and its nationals. In particular, the right to communicate and to have access to the nationals of the sending State is of vital importance because the fulfillment of all other consular protective duties depends on their exercise.
Before the adoption of the Vienna Convention, it was customary for consuls to have the right of communication with and access to nationals.(68) Additionally, before the Vienna Convention, the United States signed twenty-eight bilateral treaties with provisions regarding the right of American consuls to be notified of the arrest of nationals.(69) Thus, the right of consular access to nationals in prison was accepted as a matter of customary international law, or at least of international practice, regardless of the existence of a treaty.(70)
In the years preceding the Vienna Convention, the U.S. Department of State had consistently argued for these rights in their communications with other nations. For example, one case involved the denial of a U.S. consular officer's right to visit a U.S. citizen detained in Germany.(71) The State Department instructed the United States Embassy to transmit to the German government its belief that the consul should be granted access to their nationals according to what the U.S. Government considered to be "the accepted international practice, ... in order that the Consular Officers may render them the assistance to which they may be entitled."(72)
Addressing a complaint from Mexican authorities regarding access to a Mexican national in California, the State Department informed the Governor of California that, even in the absence of an applicable treaty, the U.S. government had "always insisted that its consuls be permitted to visit American citizens imprisoned throughout the world."(73) In response to an Italian inquiry on the question of whether the consular representative of a foreigner arrested in the United States would be notified, the State Department answered that "while it is not the general practice to notify the consular representatives of a foreigner who is placed under arrest, such notification would promptly be made upon request therefor by the arrested person."(74)
The negotiation and ratification of the Vienna Convention significantly contributed to the international legal consolidation of the right of consuls to have free access to detained nationals. Additionally, the convention spelled out the right of a consul to learn immediately of the detention of a co-nationals, to visit them in the place of detention, and to provide them with legal assistance.(75)
The adoption of this provision at the Vienna Conference proved to be a controversial one, even threatening the success of the whole Convention.(76) The International Law Commission originally proposed an unconditioned obligation of the receiving State to inform a consul of the detention of a co-national "without undue delay."(77) This provision raised significant opposition at the Conference.(78) The concerns raised by the delegations were stated in terms of individual liberty,(79) appropriateness of having such a provision in a treaty on consular relations,(80) jurisdictional concerns,(81) the administrative burden resulting from such a duty,(82) and conflicts of laws principles.(83)
Notwithstanding these objections, some countries continued to emphasize the importance of the proposed obligation of the receiving State to inform consuls of the detention of a national.(84) Others presented proposals to amend the obligation so as to base notification of consul on the request of the person detained.(85) This amendment was criticized because disputes could easily arise as to whether the detained individual had actually made the request.(86) Furthermore, as argued by the Italian delegation, this approach would make cooperation between the receiving State and the consular post of the sending State dependent on "the will of a single individual."(87)
Ultimately, just two days before the closing of the Conference, an amendment to Article 36 was passed.(88) The final text of Article 36 represents a practical compromise between the two positions--those who would impose an unqualified obligation of the receiving State to inform consuls of imprisonment of their co-nationals and those who would deny such an obligation altogether. On one hand, the adopted Article 36 strengthens the obligation of the receiving State to inform consuls "without delay" of detained co-nationals.(89) On the other hand, it makes the notification dependent on the request of the detained national.(90)
In any case, the final terms of Article 36 implied the acknowledgment by the international community of a deeply rooted right in international practice: the right to receive the assistance and protection of one's State through the protective duties of consular representatives. In addition, the Vienna Convention implicitly recognized those human rights whose exercise depend on the availability of a consul.
III. HUMAN RIGHTS AT STAKE
The right of consular protection has, at its origin, the basic right of an individual to enjoy protection while in a foreign state. From where does this basic right derive? Some claim that it is a principle of international law applicable to nationals of one state within the jurisdiction of another state.(91) Historically, protection of nationals in a foreign state was a question of sovereignty.(92) Protection was accomplished by "subsuming individuals into the nation-State network through the bond of nationality."(93)
The international community has evolved from this state-sovereignty based protection system into a system which directly protects the rights of the individual.(94) It involves a committed effort to respect those liberties, immunities, and benefits which all human beings are entitled to "as of right."(95) At the practical level, the observance of minimum human rights standards set by international instruments of universal applicability is a yardstick to assess the protection of an individual's life, liberty, and personal security.
A. Human Rights and the United Nations Charter
The need for effective protection of human rights beyond the domestic jurisdiction of states began to emerge after the end of the second World War.(96) Indeed, the creation of the United Nations responded in part to the international concern about gross violations of human rights during the war.(97)
Hence, in the Preamble of the U.N. Charter, members "reaffirm[ed] faith in fundamental human rights ... [and] in the dignity and worth of the human person."(98) Furthermore, Article 55 of the Charter states that the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."(99) Article 56 strengthens this commitment by requiring that "[a]ll Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55."(100)
Although there has been considerable debate as to the legal nature of the obligations contained in these provisions,(101) it is now generally accepted that they at least represent more than a mere statement of purpose devoid of any legal effect.(102) The words used in the Charter create a "legal obligation."(103) Further, the pledge of Article 56 represents a "legal commitment" on the part of the members to act in co-operation with the United Nations to achieve the respect of human rights.(104) Undoubtedly, if a member engages in gross violations of human rights, it violates the pledge of Article 56.
Additionally, the Charter imposes a legal duty upon the organs of the United Nations to adopt measures and create the implementation mechanisms necessary to accomplish its goals in the area of human rights.(105) The Economic and Social Council and the Commission on Human Rights are the main instruments to implement the human rights principles and obligations of the United Nations.(106) Article 68 of the Charter gives the Economic and Social Council the power and the mandate to set up a Commission for the promotion of human rights.(107) This mandate has been broadly interpreted to authorize the Commission to deal with any matter relating to human rights, such as the preparation of studies, recommendations on matters of its competence, drafting international instruments, and the investigation of allegations concerning violations of human rights.(108)
B. The Universal Declaration of Human Rights
The General Assembly of the United Nations adopted the Universal Declaration of Human Rights ("the Declaration") on December 10, 1948.(109) The adoption of the Declaration attempts to fulfill much of the promise of Article 1 of the United Nations Charter to "promot[e] and encourag[e] respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."(110) Its expanding moral and political authority, surpassed only by the Charter itself, places the Declaration among the most important contemporary international human rights instruments.(111)
Although not in itself legally binding,(112) the increasing legal significance of the Declaration stems from its widespread acceptance.(113) The Declaration's influence is reflected in national constitutions, domestic courts, and international courts.(114) The instrument serves as the ideological foundation of the whole United Nations human rights implementation system.(115) The Declaration supplies the international community with a basic point of reference to conform its conduct to broadly accepted parameters of fundamental freedoms and socio-economic well being. Moreover, the Declaration has inspired several regional treaties.(116)
As for the Declaration's applicability to aliens, the use of simple and general terms in its provisions evidences a truly universal coverage. Article 1 states "[a]ll human beings are born free and equal in dignity and rights."(117) This broad language clearly makes no distinctions based on national borders. Moreover, the Declaration repeatedly uses terms such as "everyone" to express the affirmative grant of a right and "no one" to state the prohibition of a particular depravation in subsequent articles.(118)
C. The Universal Declaration and the Administration of Criminal Justice
Human rights play a central role in the field of criminal justice. Simply because of the nature of the criminal process, the state represents the biggest threat to the human rights of the individual.(119) The protection of life, liberty, personal security, and physical integrity of individuals in the context of criminal procedure is within the scope of the Declaration. Protection during the pre-trial detention stage and the actual trial are both contemplated by the Declaration.
The general provisions previously discussed provide a philosophical framework in the area of criminal justice. Article 3 of the Declaration guarantees the right to life, liberty, and security of person.(120) Article 5 mandates that no one shall be subjected to torture or to cruel, inhuman, or degrading treatment of any kind.(121) Article 6 establishes the right to the recognition of legal personality everywhere.(122) Assuring equality and non discrimination in the exercise of these rights, Article 7 proclaims: "All are equal before the law and are entitled without any discrimination to equal protection of the law."(123) At the same time, this article secures equal protection against any discrimination in violation of the Declaration.(124) These provisions set the stage for more specific protections in the area of criminal procedures provided in subsequent articles of the instrument.
Article 9 provides: "No one shall be subjected to arbitrary arrest, detention or exile."(125) The key element in Article 9 is the interpretation of the term "arbitrary." According to the United Nations Commission on Human Rights, the notion of "arbitrary includes both procedural and substantive components."(126) Thus, a U.N. study in 1965 defined an arbitrary arrest or detention as "(a) on grounds or in accordance with procedures other than those established by law, or (b) under the provisions of a law the purpose of which is incompatible with respect for the right to liberty and security of person."(127)
The protection provided by this article is critical in terms of consular protection. It gives the consul a point of reference to evaluate the lawfulness of the detention of a co-national. It also provides a legal basis, other than consular conventions and customary international law, for the consul to make objections. If the deprivation of liberty does not meet the standard established by this provision, the consul should be entitled to obtain the liberty of his co-national through the means established in domestic legislation or, if inappropriate or unavailable, through protest before the authorities of the receiving State.
Article 10 of the Declaration states: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."(128) The right to a fair trial is an essential, if not imperative, element to the establishment and effective implementation of a criminal justice system based on the rule of law.(129) As embodied in this Article, the right to a fair trial covers the procedural aspect ("fair and public hearing") and the institutional aspect ("independent and impartial tribunal") of a criminal trial.(130) The scope of this right is so broad that "the right to a fair trial stands out as perhaps the one most inventively elaborated as well as most dynamically interpreted by the organs set up for the international protection of human rights."(131)
In cases where there has been a "denial of justice,"(132) consular representatives can actively seek redress for injured co-nationals. For instance, protective duties of British consuls include intervention in judicial proceedings if "(1) a prima-facie miscarriage or denial of justice exists, (2) the local legal remedies have been exhausted, or (3) an appeal to higher authority would obviously be futile."(133)
No express mention of the rights of foreign nationals nor to the aid of consuls was made in Article 10. A Draft Declaration submitted to the Third Session of the U.N. Commission of Human Rights, however, stated:
[Everyone] shall be entitled to a fair hearing of his case
and to have the aid of a qualified representative of his
own choice, and if he appears in person to have the
procedure explained to him in a manner in which he can
understand it and to use a language which he can speak.(134)
This language alludes to the protection of persons unfamiliar with the legal system of a particular state and unable to understand the language spoken in that country. In order to make the language of the article more succinct (not due to disagreement on its content), the reference to legal aid to such individuals was omitted in the adopted version of Article 10.(135) Nevertheless, the proposal indicates that the concern for the rights of foreign nationals in the context of the criminal administration of justice was present during the debates concerning the Declaration.
The first part of Article 11 of the Declaration reads: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."(136) Article 11 recognizes the crucial concepts of presumption of innocence until proven guilty, the right to a public hearing, the right to an effective defense, and the nonretroactivity of the law.(137) Consuls may further the goals of Article 11 by aiding a detained national in securing legal assistance. "Legal representation is regarded as the best means of legal defense against infringements of human rights and fundamental freedoms."(138)
D. The International Covenant on Civil and Political Rights
After the Universal Declaration, the most important human rights instruments are the International Covenant on Civil and Political Rights (ICCPR)(139) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).(140) The ICCPR, adopted in accordance with the principles proclaimed in the United Nations Charter,(141) was derived from the Universal Declaration.(142) The Preamble of the ICCPR explicitly recognizes "in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom."(143) The ICCPR, along with the Declaration and the ICESCR, combine to form what has been labeled the "International Bill of Rights."(144)
Unlike the Declaration, the legal nature of the ICCPR has never been questioned, and the provisions of the Covenant are binding international law.(145) "[I]t creates rights and obligations among the states parties to it and affords each party the usual remedies for inducing compliance or obtaining reparation if a violation occurs."(146) Thus, Article 2 of the instrument states that "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant."(147) Furthermore, Article 2 mandates every state that adheres to the instrument to undertake legislative measures necessary to give effect to the rights recognized in the Covenant.(148)
In order to assure its implementation, Article 28 of the ICCPR established the Human Rights Committee Committee),(149) a permanent and independent body of experts charged with reviewing the human rights situation in each signatory State and monitoring the adherence to the standards set forth by the Covenant.(150) The Committee acts if it receives a state party's complaint against another party for violations of the ICCPR.(151) Under the ICCPR's Optional Protocol, the Committee may also hear complaints of individuals against a state party.(152) From time to time, the Committee adopts reports and "general comments" interpreting key provisions of the ICCPR, with a view toward settling disputes among parties concerning the application of the Covenant.(153)
Consistent with their legally binding character, both the ICCPR and the ICESCR, in contrast to the Declaration, are drafted in a more "legalistic" style.(154) They spell out in great detail the nature of the rights concerned and elaborate on rights already included in the Declaration.(155) In this regard, the ICCPR contains provisions relating specifically to foreign nationals.(156)
The protection of foreign nationals, however, is not limited to these specific provisions. Following the spirit of the Declaration, the ICCPR provides universal language which suggests universal coverage.(157) For instance, Article 14 begins by declaring "[a]ll persons shall be equal before the courts and tribunals."(158) Like the Declaration, the provisions of the ICCPR should be applied without discrimination of any type.(159) Accordingly, many of the ICCPR's general provisions provide consuls with an international legal basis for protection of their nationals.
In its first few articles, the ICCPR addresses the basic rights already protected in the Declaration. Article 6 assures the "inherent right to life" of every human being and declares that "[n]o one shall be arbitrarily deprived of life."(160) Article 7 reproduces the Declaration's prohibition of torture and cruel, inhuman or degrading treatment.(161)
Article 9 proclaims everyone's right to liberty and security of person.(162) More specifically, as to deprivation of liberty, Article 9 includes important elements regarding due process of law, such as provisions against arbitrary arrest and detention, which are fundamental to the protection of the liberty of the individual.(163) This provision incorporates not only the right to be free from arbitrary arrest established in the Declaration, but it provides for the prohibition of illegal deprivations in more legalistic and specific terms: "[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."(164) Hence, to be lawful, a detention must comply with the substantive and the procedural requirements established by legislation, regulation, or other legal means.
Other provisions in Article 9 provide for specific protection of persons against whom criminal charges are brought:
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release . . . . (165)
The judicial control of arrest or detention outlined in paragraph 3 is generally interpreted as having two basic requirements: a right to be presented "promptly" before a judge or other authorized officer, and the right to have a trial within a "reasonable" time or to be released.(166) Time is therefore a fundamental factor in the exercise of these rights. As to the promptness, the Human Rights Committee has stated that delays in presentation before a judge must not exceed a "few days."(167) The Committee has also proclaimed that "[p]re-trial detention should be an exception and as short as possible."(168)
The duration of detention has been an important issue in the development of consular protection. Consuls may legitimately inquire into the length and appropriateness of a detention and, if necessary, ask for the prompt release of the co-national or insist that proceedings begin immediately.(169)
The right to be presented before a judge or authorized officer has important implications for consular protective duties. Though it is generally the police who are in charge of executing arrests, the allocation of this power varies in the different legal systems.(170) Similarly, the arrest itself may be previously authorized by a judge or public prosecutor, or it may be issued by an investigating judge or by a court of criminal jurisdiction.(171) The familiarity of the consul with the judicial and administrative organization of the receiving State and with the arrest procedures is fundamental to verify the legality of the deprivation of liberty.
In its last two paragraphs, Article 9 of the ICCPR provides for further protection of persons deprived of their liberty:
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation.(172)
This internationally guaranteed right of the domestic court to examine the legality of every arrest or detention is equivalent to the domestic guarantees of habeas corpus and the Latin American notion of amparo to promptly go before a court to determine the lawfulness of a detention.(173)
As to the right of compensation in cases of unlawful arrest or detention, there is a question as to whether the cause of action accrues against the receiving State, or merely the official responsible for the unlawful arrest.(174) The "plausible interpretation" is that the state must assure that the remedy is effective, and the state must assure compensation if the official cannot pay it.(175) In the case of foreign nationals unlawfully deprived of liberty, it should be within the duties of a consul to seek appropriate compensation for wrongs committed against nationals.(176)
Article 14 of the ICCPR contains several basic guarantees which as a whole integrate the right to a fair trial.(177) Article 14 defines specific guarantees which expand on the concept of a fair trial as promulgated in the Declaration.(178) As recognized by the Committee, this Article is of a complex nature.(179) Its provisions relate to specific aspects of the general concept of fair trial and the proper administration of justice.(180) Some of the basic guarantees set forth in this provision have particular interest in the context of consular access and protection.
Subparagraph 3(a) of Article 14, dealing with "prompt" notification, clearly has special application to foreign nationals, who may not have the ability to speak and understand the language of the receiving state.(181) The Committee has interpreted the promptness requirement of this provision to mean that the information should be given "as soon as the charge is first made by a competent authority."(182)
Consular assistance can be critical in securing the right to an adequate defense guaranteed by subparagraph 3(b) of Article 14.(183) The requirement of "adequate time" for the preparation of the defense depends on the circumstances of each case in particular and is closely related to the availability of evidence.(184) The Committee has interpreted the "adequate facilities" requirement to include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel.(185)
The right to counsel, essential for an adequate defense, is assured in subparagraph 3(d) of Article 14.(186) This right is guaranteed even in situations where the accused lacks economic means to hire a lawyer, as is often the case with accused aliens.(187) The court also has discretion to supply counsel in any case where "the interests of justice require."(188)
The right to have legal assistance in the context of criminal procedures is fundamental to the concept of fair trial. The Committee has expressed this concern, saying "[t]he accused or his lawyer must [have] the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair."(189) Accordingly, the presence of an effective counsel tends to "deter and prevent abuses against the person arrested, charged or prosecuted ... [and] ensures that due process shall be followed."(190)
The opportunity to have access to a consular representative is a key factor in the protection of this fundamental right. Not surprisingly, the provision of legal assistance was a recognized basic duty of consular officers in the Vienna Convention.(191) One of the first inquiries after a consul has learned of the detention or imprisonment of a co-national is to find out whether he has had proper legal advice and present him a list of attorneys.(192) Consequently, disregard of the duty to inform consular representatives of the detention of fellow nationals may be considered a violation of the right to counsel, in detriment of the human rights of the foreign national. The oversight of this duty may have irrevocable consequences on the final outcome of the trial.
Moreover, the task of a consul does not end with the act of furnishing the detained co-national with the assistance of a lawyer. Consuls are occasionally required to attend the trials to secure the adequate protection of co-nationals subjected to criminal proceedings.(193)
Finally, subparagraph 3(f) sets forth the right to assistance of an interpreter if the accused does not understand or speak the language used in court.(194) This protection assures that the accused will comprehend the proceedings, the documents, and the evidence against him, whether he is a national or a foreigner. The Committee has interpreted this as a "basic" right in those cases in which ignorance of the language of the proceeding may constitute a major obstacle to the right of defense.(195) Essential to the effective exercise of this right is close contact with consular representatives from the early stages of the proceedings.
IV. CONSULAR PROTECTION AND HUMAN RIGHTS IN UNITED STATES LAW
According to the United States Constitution's Supremacy Clause, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."(196) The Vienna Convention on Consular Relations was ratified by the United States,(197) and therefore, has the status of "supreme Law of the Lan&' and is binding on federal and local authorities. If a treaty provision gives protection to an individual, the provision will be deemed "self-executing" and given the force of law.(198)
United States courts have enforced the right to contact a consul, although not in the context of criminal justice.(199) Although it is not expressly mentioned in the United States Constitution, the Supreme Court has held that international law is also "part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination."(200)
The status of the human rights clauses of the United Nations Charter has been subject to much controversy.(201) Once ratified by the United States, the Charter became the supreme law of the land. Accordingly, the United States is bound to fulfill its obligations for the promotion of human rights embodied in articles 55 and 56 of the instrument.(202) Nonetheless, the domestic impact of such provisions has been practically nullified, as domestic courts have repeatedly held that they are not intended to be self-executing.(203) In any event, regardless of the general nature of the language of Articles 55 and 56 of the Charter, "it seems clear that whatever human rights norms are generated by the Charter must be given effect domestically by member States, including the United States, if they are to fulfill their legal obligations under the treaty."(204)
The legal nature of the provisions of the Universal Declaration of Human Rights cuts off any pretension of legal obligation.(205) During the adoption of the Declaration, the United States expressly concluded that, because the instrument was not a treaty, it gave rise to no binding legal obligations whatsoever.(206) Nevertheless, some of the rights embodied in the Declaration, to the extent that they have become part of customary international law, could be directly enforceable under domestic law.(207) United States courts have, in fact, recognized the value of the Declaration as evidence of customary international law enforceable in the domestic courts.(208) The path opened by this recognition may lead to the identification of other human rights norms found in the Declaration which might have become part of customary international law.
The efficacy of the ICCPR and its norms was significantly impaired by the inclusion of a non-self-executing reservation.(209) In any event, the ICCPR, like the Declaration, has been used as an interpretive aid by domestic courts in the enforcement of human rights.(210) In this sense, the use of the ICCPR for the construction of domestic law provisions is likely to expand after U.S. ratification.(211)
The failure of United States authorities to comply with the obligation to inform detained aliens of their right to communicate with a consul, or to notify consular officers when one of their nationals has been detained, has significant human rights consequences. This failure also implies United States' responsibility for the violation of international human rights treaties and norms of customary international law.
V. THE APPLICATION OF THE VIENNA CONVENTION IN UNITED STATES DOMESTIC COURTS
Foreign nationals on death rows throughout the United States are embracing a novel argument that their sentences should be commuted because of violations of the Vienna Convention on Consular Relations. Although human rights are closely related to rights of access to a consul, these rights have not been independently invoked as cause for commutation of a death sentence. For the foreign nationals in the following cases, the Vienna Convention may offer a last chance to avoid the death penalty. For the international community, these new developments could open the door for further elaboration on the right to a consul.
A. The Faulder Case
A representative worst-case scenario involving a foreigner facing criminal procedures abroad is the case of Joseph Stanley Faulder. Faulder, a Canadian national working in Texas,(212) was convicted in a state court and sentenced to death for the 1975 robbery-murder of a prominent local citizen.(213) He then was placed on Texas's death row.(214)
Following a series of failed direct appeals, a protracted period of separate actions commenced, described by the Fifth Circuit as follows:
After unsuccessful direct appeals, Faulder filed a petition
for habeas corpus and a motion for stay of execution
in state court. The court held an evidentiary
hearing on Faulder's ineffective assistance of counsel
claim and recommended that relief be denied. The
Court of Criminal Appeals denied Faulder's petition.
Faulder now seeks relief from the federal courts.
He filed a petition for writ of habeas corpus and motion
for stay of execution. The district court granted the stay
of execution and held an evidentiary hearing on the use
of special prosecutors and whether the prosecution allowed
[one of the State's witnesses] to testify falsely. After
the hearing, the court denied Faulder's petition but
granted a certificate of probable cause to appeal.(215)
It was during this appeals process that attorneys raised the argument that authorities had violated the right to consular access guaranteed by the Vienna Convention.(216)
The Fifth Circuit reported that "Faulder claims he is entitled to relief because ... [his] right to compulsory and due process was violated when law enforcement officials violated the Vienna Convention on Consular Relations."(217) Neither after his arrest nor during his trial was Faulder informed by Texas authorities of his right to contact the Canadian consulate.(218) He made no contacts with family in Canada in preparation for his trial, and presented no mitigating evidence in the penalty phase of the trial.(219) Only during the post-conviction proceedings--several years after the trial--did Faulder's attorneys realize that he had been denied his right to contact the consular authorities of his country.(220)
The intervention of a consul to contact the authorities of the sending State and the family of the co-national in the search of evidence can be crucial. A consul plays an important role in obtaining testimonies from relatives and acquaintances and presenting it to the court of the state where the alien is being tried. Faulder's right to a fair trial included the right to obtain the attendance and examination of witnesses on his behalf, something that could have been easily accomplished with consular assistance.
On appeal to the Fifth Circuit, the Canadian government filed an amicus curiae brief in support of Mr. Faulder.(221) Canada argued that the issue "relates to the treatment of a Canadian citizen in the United States and the failure of the Government of the United States to fulfil the terms of the Vienna Convention on Consular Relations."(222) Canada further asserted that the situation would have been different if the Canadian consular authorities had been informed of the detention of Faulder:
[I]f Mr. Faulder had been given an opportunity to contact
the Canadian Consulate General in Dallas, he
would have been visited by a Canadian consul. The consul
would have offered to contact Mr. Faulder's family
in Canada and inform them of his situation. They in
turn could have provided information concerning Mr.
Faulder's medical and mental history that could have
been material to his defense. The consul would also
have been able to provide him with a list of local lawyers
he could contact. During Mr. Faulder's incarceration,
the consul would have provided Mr. Faulder with
assistance on non-legal issues which he could not have
received from his attorney. Consuls are specifically
trained and instructed to provide such unique assistance
to persons in Mr. Faulder's situation.(223)
This breach of the Vienna Convention, according to Canada, "deprived Mr. Faulder of a right under international law that may have prejudiced his ability to receive a fair trial and sentencing hearing."(224)
The Fifth Circuit's resolution of this issue was unsatisfying. The opinion recognized that there had been a violation of Faulder's Vienna Convention rights.(225) Nonetheless, the court apparently found the omission to be "harmless error." The court explained:
[T]he district court correctly concluded that Faulder or
Faulder's attorney had access to all of the information
that could have been obtained by the Canadian government.
While we in no way approve of Texas' failure
to advise Faulder, the evidence that would have been
obtained by the Canadian authorities is merely the
same as or cumulative of evidence defense counsel had
or could have obtained.(226)
Accordingly, the Fifth Circuit held that the violation did not merit reversal.(227)
It is undoubtedly a dangerous precedent for a United States Circuit Court to hold that the violation of a basic human right does not merit reversal of a capital murder conviction. The court's willingness to look past this violation of an accepted international norm is puzzling, particularly considering the specifics of Faulder's case. Mitigating evidence is crucial to an effective defense in the punishment phase of a capital punishment proceeding. Faulder's attorneys determined that his relatives would have assisted in gathering important mitigating evidence had they known of the proceedings.(228) It seems clear that "evidence [located in Canada] could only have surfaced if either Faulder's attorney recognized the importance of Faulder's citizenship or the Canadian consulate knew of Faulder's detention and cooperated with the defense attorney."(229) The participation of consular officers would have ensured that Faulder's rights were protected through every stage of the foreign legal proceedings, and that those procedures met the standards required by international human rights law.
Nevertheless, Faulder still sits on Texas's death row.(230) His appeals are largely exhausted and, except for a forthcoming clemency appeal to the Governor of Texas, the Chief of the Habeas Corpus Division of the Attorney General's Office does not foresee any further litigation.(231) All that awaits is for the District Attorney's office of Gregg County to ask the court to set an execution date.(232)
B. The Montoya Case
Irineo Tristan Montoya, a Mexican national, was convicted of capital murder and sentenced to death in a Texas district court for the stabbing death and robbery of a U.S. citizen.(233) The principal piece of evidence used against Montoya was a signed confession obtained after several hours of police interrogation following his arrest, prior to his initial appearance before any court, and before counsel had been appointed to defend him.(234) Montoya's confession was in English, a language that he is unable to read, speak, or write.(235)
As in the Faulder case, Montoya was not informed of his right to contact his consular representatives.(236) The Mexican Consulate was not notified until two months after Montoya's trial and conviction, when consular officers could do little about any violation of his rights at the early stages of the proceedings.(237) Mexican consuls have a vital role in the protection of a Mexican national's rights:
By custom and practice the Mexican Consulate actively
intervenes as soon as it is notified of a Mexican National's
detention and/or arrest. The Consulate meets
with the National, informing them of his rights under
United States law, especially the right to remain silent and the
right to an attorney. The Consulate also provides a list of
Spanish-speaking attorneys. Once a lawyer is appointed or
obtained, the Consulate meets with the lawyer and offers to
assist in any way possible. Further, the Consulate may attend
trial on a daily basis to ensure the National's rights are
protected. This assistance is not to be minimized--in fact--it is
recognized as imperative and instrumental in avoiding the death
By failing to inform Montoya of his right to consul, he was effectively deprived "of his most basic human rights in contravention of fundamental protections afforded under international law."(239)
Montoya stated that if he had been informed of his right to consular assistance, he would have contacted the Mexican consular officers.(240) By failing to notify the Mexican Consulate, the essential right to counsel throughout all the stages of the criminal procedures was significantly impaired. As Montoya's defense stated: "[T]he State's inaction [to notify Montoya of his right to a consul] effectively nullified the consulate mission and authority and prevented consular intervention at the most critical time for Montoya as a foreign national-when his very life was at stake."(241)
C. The Murphy Case
In 1991, Mario Benjamin Murphy, another Mexican national, pled guilty to capital murder for hire and for conspiracy to commit capital murder in Virginia.(242) He was sentenced to death by the trial court for the capital murder offense.(243)
The issue of Virginia's violation of the Vienna Convention on Consular Relations was raised for the first time in federal habeas corpus proceedings.(244) Murphy's lawyers argued:
Because of the Commonwealth's failure to abide by the
Convention, Mario endured a lengthy legal process in which
favorable mitigating evidence was beyond his reach. Notification
to Mario of his rights under the Convention and the consequent
notification of the government of Mexico of the mortal
predicament of its native son would have critically altered the
course of Mario's sentencing. Informed of his rights under Article
36, Mario would have requested assistance from his consulate.
He would have been visited in short order by his consul, who
would have set in motion the process by which Mario's Mexican
family could have provided crucial testimony and assistance and
by which other evidence might have been obtained.(245)
The district court noted in its ensuing memorandum opinion that discussion of this issue was "necessary due to the sheer novelty of the claim."(246) The court began with the questionable assertion that the purpose of the Vienna Convention was not to specifically protect foreign nationals, but to categorize and protect the functions of the consular offices themselves.(247) It also took note of "what appears to be Virginia's defiant and continuing disregard for the Vienna Convention."(248) Nevertheless, the court determined that there was no significant difference between Murphy's case and the facts in Faulder v. Johnson, and the exclusion of consul was harmless error.(249) Despite addressing the substance of the argument, the court ultimately found that the claim was procedurally barred.(250) Accordingly, the court denied the claim and dismissed the petition for a writ of habea's corpus.(251)
Murphy's attorneys appealed the judgment of the district court to the United States Court of Appeals for the Fourth Circuit.(252) Murphy asked the court to reverse and remand the case for proceedings on the merits arising from the violations of the Vienna Convention by the Commonwealth of Virginia.(253) He argued that Article 36 of the Vienna Convention, "[a]s a valid provision of a ratified treaty.... supersedes procedural default and requires that the courts of the United States give `full effect' to Article 36's purpose of assuring consular assistance for detained foreign nationals."(254)
Murphy argued that there was "substantial evidence of prejudice" in his case because of Virginia's violation of the Vienna Convention.(255) In addition to arguing lack of access to mitigating evidence, Murphy discussed several ways that "intervention of consul might have changed the course of plea negotiations."(256) Murphy asserted that presence of consul might have prevented the "singling out" of Murphy for the death penalty.(257) "Given that Article 36 exists precisely to prevent national origin discrimination, the obviously pretextual nature of [the decision to seek the death penalty for Murphy] provides the most relevant and disturbing evidence of prejudice that could be offered."(258) Accordingly, Murphy argued that the district court erred in determining that the exclusion of consular assistance was harmless error.(259)
In an argument addressing the Fifth Circuit's conclusion in Faulder v. Johnson, Murphy contended that the district court erred in requiring him to prove prejudice from the violations of the Vienna Convention.(260) He argued that continued violation of the right of access to consul is "structural error"(261) as opposed to "trial error":(262)
Virginia's sustained violation of the Convention is just the type of
wrong that is a structural error. The effect of Virginia's violation
was not isolated to some discrete moment in the proceedings
against Murphy. The exclusion of the consul from Murphy's
prosecution was pervasive and affected Murphy's rights and
treatment from the time of his arrest in 1991 throughout his
prosecution to, at the earliest, May 1996, when the consul finally
was informed. The undisputed evidence before the District Court
established that if Virginia had fulfilled its obligations, Murphy
would have notified the consul, Murphy's trial counsel would have
welcomed the assistance, and the consul would have employed all
his substantial resources to assist Murphy during each and every
phase of his detention, trial, sentencing, appeal, and state habeas
proceedings. Thus, the failure to notify Murphy of his rights
cannot be viewed as a discrete moment in the course of an
otherwise fair process. Virginia's disregard of the Convention
infected the entire process that concluded with Murphy's death
Consequently, harmless error analysis should not be applied.(264)
D. The Breard/Paraguay Cases
Angel Francisco Breard was convicted and sentenced to death for capital murder and the attempted rape of Ruth Dickie.(265) Breard, a dual citizen of Paraguay and Argentina, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia on August 30, 1996.(266)
Like the claimants before him, Breard argued that his rights were violated under the Vienna Convention.(267) It was noted that "Virginia's persistent refusal to abide by the Vienna Convention troubles the Court."(268) Nevertheless, the court found that "a violation of rights under the Convention is insufficient to permit [federal habeas corpus] relief."(269)
In a separate proceeding, the Republic of Paraguay filed an action against the governor of Virginia for declaratory and injunctive relief related to the arrest and conviction of Breard.(270) The issue came before the district court in Virginia's motion to dismiss for lack of subject matter jurisdiction.(271) Once again, the court stated that it was "disenchanted by Virginia's failure to embrace and abide by the principles embodied in the Vienna Convention."(272)
The court held, however, that the Constitution effectively barred retroactive relief based on this claim.(273) The decision rationalized that the Eleventh Amendment bars suits by a foreign government against a state, as well as barring suits against state officials.(274) A claimant can fit within a narrow exception to this immunity if they can show (1) a continuing violation of federal law and (2) the requested relief is prospective.(275) Paraguay had to show, then, that it was the "victim of a continuing violation of federal law."(276)
In a peculiar interpretation of "continuing," the court contended:
The complaint does not state that defendants continue
to deny plaintiffs access to Breard. There is no allegation
that [Virginia] refuse[s] to allow [Paraguay] to give
Mr. Breard legal assistance. In fact, officials from the
Republic of Paraguay assisted in the preparation of
Breard's habeas petition filed before this Court. Now
that defendants have given Paraguayan officials access
to Mr. Breard, they are no longer in violation of the
The court apparently ignored the "continued" violation of Breard's Vienna Convention rights from the time of his arrest until well after his conviction. According to this formulation of the exception to the Eleventh Amendment immunity, no claimant could seek federal relief so long as the offending state supplied consular access at some point in time before the claim for declaratory/injunctive relief came before the court. This certainly provides little motivation for compliance with the Vienna Convention's right of notification of consul "without delay."(278)
This disposition by the district court has been appealed to the United States Court of Appeals for the Fourth Circuit.(279) Oral argument of Murphy's case is set for April 7, 1997.(280) The ultimate resolution of these cases will have a lasting effect upon the criminal justice system of many states. It could also have a potential life-saving effect upon the many foreign nationals on America's death rows.(281)
In the United States, the main cause of the violation of the right to a consul and of subsequent procedural human rights violations remains the lack of awareness of the Vienna Convention by federal and local authorities, and the lack of an effective procedure to inform foreigners of their right to consular access.(282)
The courts of the United States must be responsible for the fulfillment of obligations regarding consular access derived from international instruments like the Vienna Convention.(283) In the case of the Vienna Convention, its implementation is more difficult because of the decentralization of police and prosecutorial functions among state and local authorities.(284)
However, under Article 14 of the Convention, the receiving State has the duty to notify the local authorities of a consular district of the appointment of a new head consul.(285) This notification could be used by the federal government to implement a program to inform and familiarize local authorities with the obligation to ensure that the right to contact a consul is available to foreign detainees. Moreover, Article 14 declares the sending State is obligated to ensure that "the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention."(286)
In the United States legal system, through the practice of reading detainees their Miranda rights, police officers routinely inform arrested individuals of the right to remain silent, the right to be represented by an attorney, and that statements made to the police may be used as evidence against them in court.(287) Therefore, it has been suggested that the incorporation of the right of detained aliens to contact a consular officer into Miranda warnings would significantly improve their situation.(288) Additional measures, such as including information concerning the rights of detained foreigners under the Vienna Convention in the training programs of police officers and other law-enforcement agents would also be helpful.
The use of this well settled procedure for the implementation of the right to contact a consul would not cause great inconvenience to local authorities and would assure the presence of consular representatives at the early stages of the criminal procedures.
The right to a consul represents a fusion of two somewhat contradictory trends of international law: the traditional consular functions as representative of a sovereign state, and the new emphasis of members of the international community on the respect of human rights.
Through consular protection and assistance, recognized in multilateral and bilateral conventions, states assure the adequate defense of the rights of their nationals beyond their borders. This protection is vital in situations involving criminal procedures, where human rights violations are likely to occur due to the lack of familiarity with a particular legal system and the inability of some foreign nationals to communicate in the local language. The protection is particularly important in the United States, where capital punishment still exists in some states.
International human rights standards come into play in these types of cases. Human rights embodied in universally recognized instruments prevent the discrimination that foreign nationals often encounter, and guarantee that facilities will be available to them in the preparation of their defense. The United States, one of the main actors in the international human rights arena and member of the United Nations, has the duty to assure that human rights of foreign nationals are observed. The strict enforcement of the right to immediate access to a consul would be a significant step in this direction.
(1.) Luke T. Lee, Consular Law and Practice 133 (2d ed. 1991).
(2.) See generally Gregory Dean Gisvold, Note, Strangers in a Strange Land: Assessing the Fate of Foreign Nationals Arrested in the United States by State and Local Authorities, 78 Minn. L. Rev. 771 (1994) (analyzing state and local treatment of foreign nationals and concluding that their law enforcement procedures violate international treaty-based rights, are repugnant to domestic legal principles, and detract from foreign policy).
(3.) See id. at 801. The Ninth Circuits test, developed in United States u. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979), recognized foreign nationals' rights under the Vienna Convention on Consular Relations and allowed for reversal of a conviction if it could be demonstrated that particular circumstances such as lack of understanding or a language barrier harmed the defense of the alien. See Calderon-Medina, 591 F.2d at 532.
(4.) See S. Adele Shank & John Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 St. Mary's L.J. 719, 720 (1995); see also discussion infra Part V.
(5.) See Sohail Mered, Note, It's Not a Cultural Thing: Disparate Domestic Enforcement of International Criminal Procedure Standards--A Comparison of the United States and Egypt, 28 Case W. Res. J. Int'l L. 141, 141 (1996) (focusing on the pre-trial detention phase of the criminal procedure system and arguing that "most violations of human rights which are basic to our human dignity occur during arbitrary and incommunicado detentions. Unchecked police control of this phase leads to violations of ... basic human rights .... and thus compromises the integrity of a system which relies on its ability to promote justice.").
(6.) See, e.g., Convention on Consular Officers, June 6, 1951, U.S.-U.K., art. 16, 3 U.S.T. 3426, 3439; Consular Convention, Aug. 12, 1942, U.S.-Mex., art. VI, para. 3, 57 Stat. 800, 809 ("Nationals of either High Contracting Party shall have the right at all times to communicate with the consular officers of their country."). Article 16 of the Convention on Consular Officers states:
A consular officer shall be informed immediately by the appropriate
authorities of the territory when any national of the sending state is
confined in prison awaiting trial or is otherwise detained in custody
within his district. A consular officer shall be permitted to visit without
delay, to converse privately with and to arrange legal representation for,
any national of the sending state who is so confined or detained. Any
communication from such a national to the consular officer shall be
forwarded without delay by the authorities of the territory.
Convention on Consular Officers, supra, art. 16, at 3439.
(7.) See B. Sen, A Diplomat's Handbook of International Law and Practice 323 (1979).
(8.) For instance, a recent "memorandum of understanding" between Mexico and the United States was signed after incidents involving human rights violations of Mexican undocumented immigrants by local law enforcement officers in California. See Mark Fineman & Stanley Meisler, U.S., Mexico Sign Pacts on Migrants, Drugs, Pollution, L.A. Times, May 8, 1996, at A1. Although it largely reaffirms rights recognized by both countries in earlier instruments, the understanding spells out more explicitly the rights of both U.S. and Mexican consular officials to immediately interview their detained citizens. See id.
(9.) See discussion infra Part IV.
(10.) See, e.g., U.S. Const. amend. XIV (due process); Gideon v. Wainwright, 372 U.S. 335 (1963) (guaranteeing the right to an attorney).
(11.) This language comes from a telegram sent from the U.S. Department of State to its Embassy in Damascus, Syria, on February 21, 1975, concerning two American nationals who had been detained by Syrian authorities without notifying the Embassy of their arrest. See Lee, supra note 1, at 145-46 (reprinting relevant parts of the telegram).
(12.) See Constantin Economides, Consuls, in 1 Encyclopedia of Public International Law 770, 770 (R. Bernhardt ed., 1992); see also Sen, supra note 7, at 201 ("[T]he institution of the consul is of a much more ancient origin than that of permanent diplomatic missions.").
(13.) See Lee, supra note 1, at 124; see also Sen, supra note 7, at 60 ("Protection of the interests of the sending state and its nationals is one of the primary duties of an envoy.").
(14.) See Economides, Consuls, supra note 12, at 772.
(15.) See Lee, supra note 1, at 124.
(16.) See id. at 124-27.
(17.) Id. at 126 (footnote omitted).
(18.) See id. at 127. Additionally, when a wrong is committed against a Mexican citizen by the local authorities, Mexican consuls are further instructed to present a protest in order to obtain appropriate redress. See id.
(19.) See id. at 125 (quoting the U.K.'s Foreign Service Instructions manual and noting the long-standing tradition of British consular officials concerning the protection of their nationals).
(20.) See id. at 124.
(21.) See id. at 124-25.
(22.) See id. at 125.
(23.) Shank & Quigley, supra note 4, at 725 (quoting Canadian Consular Manual [sections] 3.4.3, reprinted in Canadian Dep't of External Affairs, 1990-91 Annual Report).
(4.) Lee, supra note 1, at 127 (quoting Canadian Consular Manual, 1-3).
(25.) See R.C.R. Siekmann, Netherlands State Practice for the Parliamentary Year 1982-1983, in 15 Neth Y.B. Int'l L. 267, 344 (1984).
(27.) See Lee, supra note 1, at 125 n.6.
(28.) See id.
(29.) See id.
(30.) See discussion infra at Part IV.
(31.) Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Vienna Convention].
(32.) See Constantin Economides, Consular Treaties, in 1 Encyclopedia of Public International Law, supra note 12, at 768, 768; cf. Constantin Economides, Consular Relations, in 1 Encyclopedia of Public International Law, supra note 12, at 765, 765 ("The ability to establish consular relations belongs ipso jure to sovereign States and, like the right of legation, is one of the fundamental elements of their capacity as subjects of international law."). Bilateral agreements regulating consular matters were concluded as early as the 17th century. See Economides, Consular Treaties, supra, at 768. They became more frequent in the next century and quite common during the 19th century. See id. Provisions regarding privileges of consuls and their functions were often found in agreements of a wider scope--mainly those on friendship and commerce. See id.
(33.) See Economides, Consular Treaties, supra note 32, at 768.
(34.) See Economides, Consuls, supra note 12, at 772-74.
(35.) See Lee, supra note 1, at 128.
(36.) Protection of nationals by consuls was included in the Soviet consular conventions with Hungary, Czechoslovakia, Bulgaria, Austria, the Federal Republic of Germany, North Vietnam, and China. See id. Article 16 of the 1957 Poland-East Germany Consular Convention provides, for instance, that consuls have the right to defend the privileges and interests of their co-nationals in accordance with international law and custom and may address themselves directly to the courts and other local authorities in the pursuit of this duty. See id.
(37.) See Sen, supra note 7, at 234.
(38.) See e.g., Lee, supra note 1, at 125-28 (describing the consular practices of the United Kingdom, France, the Dominican Republic, Mexico, and Canada).
(39.) See id. at 125-26 (discussing the United Kingdom's practices).
(40.) See id. at 133-38.
(41.) See id. at 127 (noting that Mexican consuls are instructed to "lodge a protest with a view to obtaining appropriate redress").
(42.) See id. at 126-27 (discussing the preferential treatment these groups are given by Dominican consuls in facilitating repatriation of destitute nationals).
(43.) See Sen, supra note 7, at 232; see also Lee, supra note 1, at 33 ("A major protective function of consuls is to communicate with and contact their nationals in prison.").
(44.) For example, in January 1987, the British Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs outlined the services that British consuls can generally offer to detained British nationals: they can contact British nationals who have been arrested; supply lists of lawyers, interpreters, and doctors; and arrange to get messages from prisoners to relatives or friends in limited circumstances. See Lee, supra note 1, at 125-26. He also discussed, however, many things that British consuls cannot do to aid detained British nationals: they cannot get better treatment for British nationals in prison than is provided for local nationals; they cannot give legal advice, nor can they instigate court proceedings or interfere with local judicial procedures to try and free the British national; and they cannot investigate the crime or the conduct of the detained British national, as this is properly the work of the local authorities. See id. at 126.
(45.) Several private efforts had considerable influence on the theory and practice of consular law. See Economides, Consular Treaties, supra note 32, at 768. For example, the International Law Association proposed a draft at its meeting in Warsaw in 1928. See id. In 1932, a more thorough draft on the legal status and the duties of consuls was adopted by the Harvard Research in International Law. See id. At the inter-state level, Latin American countries were concluding regional multilateral consular conventions at roughly the same time. See id. Noteworthy efforts include the Caracas Convention of 1911 and the Havana Convention of 1928, both addressing the duties and rights of consuls. See id. at 768-69.
(46.) See id. at 769.
(47.) See id.
(48.) See id.
(49.) Luke T. Lee, Vienna Convention on Consular Relations, Int'l Conciliation, Jan. 1969, at 41, 48.
(50.) See Anne Winslow, Introduction, Int'l Conciliation, Jan. 1969, at 1, 2.
(51.) See id.
(52.) See Economides, Consular Treaties, supra note 32, at 769.
(53.) See id.
(54.) See id.
(55.) See id.
(56.) See id.
(57.) See id.
(58.) See Lee, supra note 1, at 145.
(60.) See Vienna Convention, supra note 31, pmbl., 21 U.S.T. at 79, 596 U.N.T.S. at 262.
(61.) See id. art. 73, 21 U.S.T. at 121, 596 U.N.T.S. at 320.
(63.) See generally William D. Morgan & Charles Stuart Kennedy, The U.S. Consul at Work 125-45 (1991) (giving first-hand accounts of protection activities performed by several American consular officials in countries as diverse as Mexico, Lebanon, South Korea, France, and Ethiopia).
(64.) See Vienna Convention, supra note 31, art. 5, 21 U.S.T. at 82-85, 596 U.N.T.S. at 268-70.
(65.) See id.
(66.) See id. art. 5(f), 21 U.S.T. at 83, 596 U.N.T.S. at 268.
(67.) Id. art. 5(m), 21 U.S.T. at 85, 596 U.N.T.S. at 270.
(68.) See Lee, supra note 1, at 136.
(69.) See id. at 134.
(70.) See id. at 136.
(71.) See Consuls, 4 Hackworth Digest [sections] 441, at 831.
(73.) Id. at 836. The Governor subsequently allowed the consul to visit the prisoner with the prisoner's attorney. See id.
(74.) Id. at 837.
(75.) See Vienna Convention, supra note 31, art. 36(1), 21 U.S.T. at 100-01, 596 U.N.T.S. at 292. Article 36(1), of the Vienna Convention declares:
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, 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;
(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. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment.
(76.) See Lee, supra note 1, at 138.
(77.) See id.
(78.) See id.
(79.) See id. ("The wishes of the individuals involved who might not want consular help or the fact of their imprisonment to be known to the authorities of the sending State should be respected.").
(80.) See id. at 139. Some argued that this was a question more properly addressed by a treaty on human rights or establishment of residence. See id.
(81.) See id. The national, by virtue of entering the receiving State, had accepted jurisdiction; consequently, the national should be afforded no more protection than nationals of the receiving State. See id.
(82.) See id.
(83.) See id. Some countries domestic laws forbid notification to a third party without the detained person's consent. See id. Whatever the reasons, the heated debate on this subject shows that states understood the importance of the obligations contained in Article 36 of the Convention. The incorporation of the receiving State's duty to notify consuls of detained nationals in the multilateral instrument would have significant legal and practical consequences.
(84.) See id. The United States delegation emphasized the necessity of the receiving State, under certain circumstances, to inform consuls of the sending State of the arrest of its nationals. See id. The Italian delegation argued that "freedom being an essential part of human dignity, consuls would be prevented from discharging their basic protective functions unless they were notified of any restriction upon the personal freedom of their co-nationals." See id.
(85.) See id. at 139-40. This was essentially the content of a six-power amendment to Article 36 submitted by the United States, Canada, Japan, Kuwait, Thailand, and the United Arab Republic. See id. The proposal was as follows:
A consular official shall be informed without delay by the competent
authorities of the receiving state if a national of the sending state
who is arrested, committed to prison or detained in any other manner so
requests. Any communications addressed to the consulate by the person
arrested, in prison, custody or detention shall also be forwarded by the
said authorities without delay.
Id. at 140.
(86.) See id. at 140.
(87.) See id. at 141.
(88.) See id. at 141-42.
(89.) See Vienna Convention, supra note 31, art. 36(1)(b), 21 U.S.T. at 101, 596 U.N.T.S. at 292.
(90.) See id. The inclusion of the last sentence of Article 36(1)(b), stating the obligation of local authorities to inform the concerned person of his right to contact his consul, secures the exercise of such prerogative. See id. The individual liberty of detainees to deny consular protection, however, was similarly protected under Article 36--again striking a balance between two competing interests. The last part of subparagraph (c) reads: "[C]onsular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action." Id. art. 36(1)(c).
(91.) See Hersh Lauterpacht, Lauterpacht's Revision of Oppenheim, in International Protection of Human Rights 5, 5 (Louis B. Sohn & Thomas Buergenthal eds., 1973) (explaining that "what the Law of Nations really does concerning individuals is to impose upon all States the duty to grant certain privileges to such foreign Heads of States and diplomatic envoys, and certain rights to such foreign citizens" when in the territory of the foreign state).
(92.) See Richard B. Lillich, The Human Rights of Aliens in Contemporary International Law 1, 1 (1984). "If a State committed a wrong against an individual who was an alien, then that wrong, if unredressed, was translated into a wrong against the alien's State of nationality. Once two States were involved, traditional international law handled the issue through its normal mechanisms (diplomacy, arbitration, and even war)." Id. (footnote omitted).
(94.) See id. at 3. Throughout this evolution, a lively debate has ensued between two schools of international thought as to the level of protection a foreign national should receive abroad. See id. at 17. Proponents of the "national treatment doctrine" maintain that aliens and nationals are entitled to equal treatment under the laws of the host state; if this equality is granted, the host state's international obligations have been fulfilled, even if the foreigner or his home state is dissatisfied with the treatment. See id. Others argue that there should be an "international minimum standard," which takes into account the situation where nationals are treated so badly that equal treatment of foreigners violates international law, See id.
(95.) See Louis Henkin, Human Rights, in 2 Encyclopedia of Public International Law 886, 886 (R. Bernhardt ed., 1995).
(96.) It is now almost common place to state that the "close link between Nazi barbarism and the total denial of human rights" was a significant factor in the international awareness of human rights after World War Two. See Antonio Cassese, Human Rights in A Changing World 30 (1990).
(97.) See L.B. Sohn, A Short History of United Nations Documents on Human Rights, in International Protection of Human Rights, supra note 91, at 505, 506.
(98.) U.N. Charter pmbl.
(99.) Id. art. 55.
(100.) Id. art. 56.
(101.) See generally Hersh Lauterpacht, International Law and Human Rights 145-54 (1968) (discussing the legal nature of the obligations under the U.N. Charter regarding human rights and fundamental human freedoms).
(102.) See id. at 147-48.
(103.) See Louis Henkin, Introduction to the International Bill of Rights 8 (Louis Henkin ed., 1981).
(104.) See Oscar Schacter, The Charter and the Constitution: The Human Rights Provisions in American Law, 4 Vand. L. Rev. 643, 652-53 (1951).
(105.) See Lauterpacht, supra note 101, at 221.
(106.) See id. at 221-22. The Economic and Social Council is the primary organ and acts either by itself or through its human rights subsidiary organization-the Commission on Human Rights. See id. at 222.
(107.) See U.N. Charter art. 68.
(108.) See U.N. Dep't of Pub. Info., the United Nations and Human Rights at 6-7, U.N. Sales No. E.841.6 (1984).
(109.) Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., 183d plen. mtg., U.N. Doc. A/810 (1948), reprinted in Basic Documents in International Law 250 (Ian Brownlie ed., 3d ed. 1983) [hereinafter Universal Declaration].
(110.) U.N. Charter art. 1.
(111.) See Juan Carrillo Salcedo, Human Rights, Universal Declaration (1948), in 2 Encyclopedia of International Law, supra note 95, at 922, 925.
(112.) See id.
(113.) See id. (noting that the Declaration has become an international standard).
(114.) See id.
(115.) The Preamble of the Universal Declaration of Human Rights proclaims in part that it is
a common standard of achievement for all peoples and all nations, to the end
that every individual and every organ of society ... shall strive by teaching
and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal
and effective recognition and observance, both among the peoples of Member
States themselves and among the peoples of territories under their
Universal Declaration, supra note 109, pmbl. at 251.
(116.) See Salcedo, supra note 111, at 925. See, e.g., American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 144-45 (reiterating in its preamble the principle and ideals set forth in the Declaration); Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, 224 (resolving in the preamble "to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration").
(117.) Universal Declaration, supra note 109, art. 1, at 252.
(118.) See, e.g., id. art. 3 ("Everyone has the right to life, liberty and security of person."); id. art. 6 ("Everyone has the right to recognition everywhere as a person before the law."); id. art. 8 ("Everyone has the right to an effective remedy); id. art. 5 ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."); id. art. 15, at 253 ("No one shall be arbitrarily deprived of his nationality . . . ."); id. art. 20(2), at 254 ("No one may be compelled to belong to an association."). Of course, there are certain provisions of the Declaration which state rights which are not available to aliens. See id. art. 21 ("Everyone has the right to take part in the government of his country).
(119.) See Gerry Maher, Human Rights and the Criminal Process, in Human Rights: from Rhetoric To Reality 197, 197 (Tom Campbell et al. eds., 1986).
(120.) See Universal Declaration, supra note 109, art. 3, at 252.
(121.) See id. art. 5.
(122.) See id. art. 6.
(123.) Id. art. 7.
(124.) See id.
(125.) Id. art. 9.
(126.) Johanna Niemi-Kiesilainen, Article 9, in The Universal Declaration of Human Rights: A Commentary 147, 149 (Asbjorn Eide et al. eds., 1992).
(127.) Id. at 150.
(128.) Universal Declaration, supra note 109, art. 10, at 252-53.
(129.) See William M. Cohen, Principles for Establishment of a Rule of Law Criminal Justice System, 23 GA. J. Int'l & Comp. L. 269, 279 (1993). Mr. Cohen's work is self-described as "a guide for determining whether existing laws and practices ... as well as proposed reforms ... comply with universally recognized international standards for protection of human rights and fundamental freedoms." Id. at 271. See generally id. at 272-86 (discussing specific principles which are necessary to safeguard against abuses of human rights).
(130.) See Lauri Lehtimaja & Matti Pellonpaa, Article 10, in The Universal Declaration of Human Rights: A Commentary supra note 126, at 159, 159.
(131.) Id. at 161.
(132.) The Restatement defines "denial of justice" as:
Any injury to an alien for which a state is responsible under this chapter
has sometimes been characterized as a "denial of justice." More commonly
the phrase "denial of justice" is used narrowly, to refer only to injury
consisting of, or resulting from, denial of access to courts, or denial
of procedural fairness and due process in relation to judicial proceedings,
whether criminal or civil. As regards natural persons, most injuries that in
the past would have been characterized as "denials of justice" are now
subsumed as human rights violations under clause (a) (of this section].
Restatement (Third) of Foreign Relations Law of the United States [sections] 711 cmt. a (1987).
(133.) Lee, supra note 1, at 125.
(134.) Lehtimaja & Pellonphaa, supra note 130, at 160.
(135.) See id. The Soviet Union opposed the removal of such reference. See id. However, the inclusion of the phrase emphasizing the principle of equality in the shortened text satisfied the Soviet concerns. See id.
(136.) Universal Declaration, supra note 109, art. 11, at 253. The second paragraph of Article 11 states other fundamental rights of a person accused of a crime, such as the non-retroactivity of laws. See id.
(137.) See id.
(138.) Draft Declaration on the Right to a Fair Trial and Remedy, U.N. Doe. E/CN.4/Sub. 2/19993/24/Add.1 (1993), reprinted in The Protection of Human Rights in the Administration of Criminal Justice 132, 177 (M. Cherif Bassiouni ed., 1994) [hereinafter Human Rights in Criminal Justice].
(139.) International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
(140.) International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
(141.) See ICCPR, supra note 139, pmbl., at 172 (declaring that the parties to the Convention are "in accordance with the principles proclaimed in the Charter of the United Nations").
(142.) See Vratislav Pechota, The Development of the Covenant on Civil and Political Rights, in The International Bill of Rights, supra note 103, at 32, 38-39 (noting that the Universal Declaration gave a universally accepted minimal definition of "human rights and fundamental freedoms" which served as the basis for all work on the ICCPR after 1948).
(143.) ICCPR, supra note 139, pmbl., at 172.
(144.) See Louis Henkin, Preface to The International Bill of Rights, supra note 103, at ix, x.
(145.) See id.
(146.) Henkin, supra note 103, at 17.
(147.) ICCPR, supra note 139, art. 2, at 173.
(148.) See id. art. 2, at 173-74.
(149.) See id. art. 28, at 179.
(150.) See id. art. 41, at 182-83 (outlining the functions of the Committee).
(151.) See id.
(152.) See Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 302, 302.
(153.) See U.N. Dep't of Pub. Info., supra note 108, at 11.
(154.) See Lillich, supra note 92, at 45.
(155.) See id.
(156.) See id. Article 12, for instance, refers to freedom of movement within member countries. See ICCPR, supra note 139, art. 12, at 176. Article 13 gives procedural rights to foreign nationals when the host State is taking expulsion actions against them. See id. art. 13. The ICESCR is generally "less favourable to aliens than its counterpart." Lillich, supra note 92, at 47. "[O]ne is led to the conclusion ... that the Economic, Social and Cultural Covenant does not embody a general norm of non-discrimination against aliens, as does the Civil and Political Covenant." Id. at 48. This distinction can largely be explained. Because the ICESCR largely deals with issues that involve affirmative state action (allocation of resources, educational opportunities, etc.), it is not surprising that nationals of the state are given first priority under the ICESCR. See id. at 47.
(157.) See Lillich, supra note 92, at 45.
(158.) ICCPR, supra note 139, art. 14, at 176. Reiterating the principle of legal equality, Article 26 announces:
All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination
on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth, or
Id. art. 26, at 179.
(159.) In Article 2 of the ICCPR, state parties undertake "to respect and to ensure to all individuals within its territories and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Id. art. 2, at 173.
(160.) Id. art. 6, at 174.
(161.) See id. art. 7, at 175.
(162.) See id. art. 9.
(163.) See id. art. 9, at 175-76. See generally Haji N.A. Noor Muhammad, Due Process of Law for Persons Accused of Crime, in The International Bill of Rights, supra note 103, at 138, 138-65 (presenting a detailed study of due process and the ICCPR).
(164.) ICCPR, supra note 139, art. 9, at 175. It is important to point out that this requirement of lawfulness is applicable to all deprivations of liberty, including criminal cases as well as cases involving mental illness, vagrancy, drug addiction, educational purposes, and immigration control. See U.N. Human Rights Committee, General Comment 8 of the Human Rights Committee on the International Covenant on Civil and Political Rights, 16th Sess., Annex 6, U.N. Doc. A/40/40 (1982), reprinted in Human Rights in Criminal Justice, supra note 138, at 63, 63 [hereinafter General Comment 8]. From the consular protection point of view, the broad scope of this provision has important consequences. The protective duties of consuls often include, as recognized in the Vienna Convention itself, the visitation of nationals not only in prisons, but also in other centers of detention, such as mental institutions and rehabilitation clinics. See Vienna Convention, supra note 31, art. 36, 21 U.S.T. at 100-01, 596 U.N.T.S. at 292. In the case of mentally affected persons, the responsibility of the consular officer is more significant as consuls have the character of legal representatives of co-nationals lacking full legal capacity. See id. art. 5(h), 21 U.S.T. at 83, 596 U.N.T.S. at 268.
(165.) ICCPR, supra note 139, art. 9, at 175.
(166.) See Niemi-Kiesilainen, supra note 126, at 152.
(167.) See General Comment 8, supra note 164, at 63.
(169.) See Sen, supra note 7, at 325. If unsatisfied with the receiving State's response to his demands, the consular representative can lodge a formal protest, even claiming reparation for the injury caused in some cases. See id.
(170.) See Muhammad, supra note 163, at 141.
(171.) See id. The limited right of the detainee to have bail set by the judicial authority is also secured by Article 9. See ICCPR, supra note 139, art. 9, at 175 ("It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees."). Although generally a consul cannot pay for this kind of expense, they can make arrangements in order to get the money for the detained national. See LEE, supra note 1, at 126.
(172.) ICCPR, supra note 139, art. 9, at 176.
(173.) See Hurst Hannum et al., Materials on International Human Rights and U.S. Criminal Law and Procedure 49 (1989).
(174.) See Muhammad, supra note 163, at 144-45.
(175.) See id.
(176.) See, e.g., Lee, supra note 1, at 127 (noting that when a wrong is committed against a Mexican national, Mexican consuls have standing instructions to obtain appropriate redress).
(177.) See ICCPR, supra note 139, art. 14, at 176-77.
(178.) See Universal Declaration, supra note 109, arts. 10-11, at 252-53. Article 14 of the ICCPR provides inter alia:
3.In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court ....
ICCPR, supra note 139, art. 14, at 177.
(179.) U.N. Human Rights Committee, General Comment 13 of the Human Rights Committee on the International Covenant on Civil and Political Rights, 21st Sess., Annex 6, U.N. Doc. A/40/40 (1984), in Human Rights in Criminal Justice, supra note 138, at 135, 135 [hereinafter General Comment 13).
(180.) See id.
(181.) See ICCPR, supra note 139, art. 14, at 177.
(182.) See General Comment 13, supra note 179, at 137.
(183.) See ICCPR, supra note 139, art. 14, at 177.
(184.) See General Comment 13, supra note 179, at 137.
(185.) See id.
(186.) See ICCPR, supra note 139, art. 14, at 177.
(187.) See id.
(188.) See id. The "interests of justice" may come into play if the accused is not sufficiently educated or the case is complex or difficult to understand. See Muhammad, supra note 163, at 153.
(189.) General Comment 13, supra note 179, at 137.
(190.) A Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235, 280 (1993).
(191.) See Vienna Convention, supra note 31, art. 5(i), 21 U.S.T. at 84, 596 U.N.T.S. at 268.
(192.) See, e.g., Lee, supra note 1, at 164 (discussing the comprehensive coverage of U.S. consular service, which includes requiring the presentation of a list of attorneys during the initial visit of U.S. consular officers to detained co-nationals).
(193.) See id. at 170 (stating that each U.S. consular post should determine whether it is necessary or desirable for an officer to attend the trial of a citizen prisoner to ensure that the co-national is not discriminated against).
(194.) See ICCPR, supra note 139, art. 14, at 177.
(195.) See General Comment 13, supra note 179, at 138.
(196.) U.S. Const. art. VI, cl. 2.
(197.) The Vienna Convention was ratified by the United States on November 24, 1969. See Vienna Convention, supra note 31, 21 U.S.T. at 77.
(198.) See Shank & Quigley, supra note 4, at 731-32.
(199.) See United States v. Calderon-Medina, 591 F.2d 529, 532 (9th Cir. 1979) (remanding the case to the district court to allow a foreign national the opportunity to demonstrate that violation of a consular access provision harmed his interests so as to prejudice his deportation proceedings).
(200.) The Paquete Habana, 175 U.S. 677, 700 (1900).
(201.) See generally Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U. Cin. L. Rev. 367, 371-85 (1985) (discussing the status and evolution of the U.N. Charter`s human rights provisions in domestic law).
(202.) See U.N. Charter arts. 55, 56.
(203.) See Lillich, supra note (201, at 374.
(204.) Id. at 380.
(205.) See Lauterpacht, supra note 101, at 399 ("[The Universal Declaration of Human Rights] is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation."). (206. See Lillich, supra note 201, at 394. 207. See id. at 397.
(208.) See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980) (recognizing that the right to be free from torture has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights); Fernandez v. Wilkinson, 505 F. Supp. 787, 795-96 (D. Kan. 1980) (recognizing the Declaration as "legal authority" for the proposition that an individual has the right to be free from arbitrary detention).
(209.) See Jordan J. Paust, Avoiding "Fraudulent" Executive Policy: Analysis of Non-Self-Execution of the Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1257, 1259 (1993) (arguing that the "non-self-execution declaration was apparently intended to gut this critical obligation of any meaningful effect and, thereby, to gut the right of individuals to an effective remedy").
(210.) See id. at 1277 & n.87.
(211.) See id. at 1277.
(212.) See Shank & Quigley, supra note 4, at 724.
(213.) See Faulder v. State, 745 S.W.2d 327, 328 (Tex. Crim. App. 1987). This appeal in the Texas Court of Criminal Appeals followed the second capital murder conviction of Faulder for the July 8, 1975, murder of Mrs. Inez Phillips. See id. at 328-29. His first conviction and sentence of death was reversed by the Texas Court of Criminal Appeals in 1979 after a majority of the court determined that Faulder's confession was extracted in violation of his Fifth Amendment rights. See Faulder v. State, 611 S.W.2d 630, 634-35 (Tex. Crim. App. 1979).
(214.) See Faulder, 745 S.W.2d at 328.
(215.) Faulder v. Johnson, 81 F.3d 515, 517 (5th Cir.), cert. denied, 117 S. Ct. 487 (1996).
(216.) See Vienna Convention, supra note 31, art. 36, (21 U.S.T. at 100-01, 596 U.N.T.S. at 292.
(217.) Faulder, 81 F.3d at 517.
(218.) See Shank & Quigley, supra note 4, at 724.
(219.) See id.
(220.) See id. Faulder's situation was aggravated by his particular personal condition. He suffered a severe childhood injury which left him with permanent organic brain damage. See id. Faulder's family living in Canada never received notice of the legal proceedings and, in fact, believed that he was dead. See id. He was unable to introduce evidence regarding his physical condition and his lawyers were prevented from obtaining substantial and favorable testimony from members of Faulder's family in Canada. See id. Nor could they obtain evidence related to the fact that Faulder had never been convicted or even accused of violent acts in Canada. See id. In the case of foreign nationals, some of the most important evidence for defense purposes may be found in their own countries.
(221.) See Brief of the Government of Canada as Amicus Curiae, Faulder v. Johnson, 81 F.3d 515 (5th Cir.) (No. 95-40512), cert. denied, 117 S. Ct. 487 (1996).
(222.) Id. at 1.
(223.) Id. at 9-10.
(224.) Id. at 10.
(225.) Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied, 117 S. Ct. 487 (1996). Texas admitted that there had been a violation after William Zapalac, Assistant Attorney General of Texas, investigated the allegations and found no evidence that Faulder had been advised of his Vienna Convention rights. See id.
(227.) See id.
(228.) See Shank & Quigley, supra note 4, at 724.
(229.) Gisvold, supra note 2, at 772 n.5.
(230.) Telephone Interview by Joedaniel Horne with William Charles Zapalac, Assistant Attorney General, Office of the Attorney General for the State of Texas (Jan. 15, 1997).
(231.) See id.
(232.) See id.
(233.) See Montoya v. State, 810 S.W.2d 160, 161 (Tex. Crim. App. 1989).
(234.) Application for Reprieve and Application for Commutation of Death Sentence to Lesser Penalty and Memorandum in Support Thereof at 7, In re Irineo Tristan Montoya, Before the Governor for the State of Texas and the Board of Pardons and Parole (1996) (on file with the Houston Journal of International Law) [hereinafter Montoya's Application].
(235.) See id. at 8. Montoya dictated the statement to a Sergeant in the Cameron County Sheriffs office in Spanish, and the officer wrote the statement out in English. See Montoya, 810 S.W.2d at 173. The confession followed a midnight arrest, intoxication at the time of arrest, solitary confinement overnight, and sleep deprivation. See Montoya's Application, supra note (234, at 12-13. Other factors affecting the confession were:
[Montoya] testified at [a pretrial hearing] that he was eighteen years
old at the time of his arrest. He testified that his educational background
consisted of five years of school in Mexico. He testified that the
officers coerced him into confessing by showing him a picture of the
victim's body and telling him that if he did not confess they would show
the picture to a jury and a jury would give him the needle. According to
[Montoya], his rights were never explained to him and although his
statement was read to him in Spanish after he dictated it, he did not
[Montoya] asserts that the fact that he spent one night in solitary
confinement, coupled with the fact that he did not speak English and was
not taken before a magistrate until after he confessed, invalidates the
voluntariness of his confession.
Montoya, 810 S.W.2d at 174. The Court of Criminal Appeals rejected this argument, noting "[w]e find no abuse of discretion in the trial court's decision concerning the voluntariness of the confession." Id.
(236.) See Montoya's Application, supra note 234, at 7-8.
(237.) See id. at 11.
(238.) Id. at 19 (citations omitted).
(239.) Id. at 26.
(240.) See id. at 11. Although he was read his Miranda rights bylaw enforcement officials, it is unlikely that he understood his rights. First, he signed the Miranda card at a time when he was "too intoxicated to be interviewed," even misspelling his own name on the card. See id. at 12. Second, Mexican nationals generally have a lack of understanding and pervasive mistrust of the American system of justice:
Mexican nationals are not familiar with American jurisprudence and they have
no basis for understanding either linguistically or culturally ... The
cultural and linguistic differences require the presence of consular
officials, or the notification of the right to consular assistance, to
ensure the protection of the Mexican national's fundamental rights as
afforded under international law and the United States Constitution.
Id. at 12 n.2.
(241.) Id. at 18.
(242.) Murphy v. Commonwealth, 431 S.E.2d 48, 49 (Va. 1993). Murphy, 19 years old at the time of the crime, was convicted of being involved in the plot to kill James Radcliff. See id. He was recruited by Gary Hinojosa, who was involved in a sexual relationship with Radcliff's wife, Robin Radcliff. See id. at 49-50. Robin Radcliff, Hinojosa, and Murphy agreed upon a plan to kill Radcliff and make it look like a burglary. See id. at 50. Robin Radcliff. agreed to pay Murphy $5000 of the anticipated $100,000 proceeds from James Radcliff's life insurance policy. See id. Murphy then allegedly recruited two of his acquaintances, James Hall and Aaron Turner, to assist him in the crime. See id. While James Radcliff slept in his bedroom and Robin Radcliff waited in the living room, Murphy, Hall, and Turner attacked and killed James Radcliff. See id.
(243.) See id. at 49.
(244.) See Amendment to Petition for Writ of Habeas Corpus at 2, Murphy v. Netherland (E.D. Va. filed May 29, 1996) (No. 3:95-CV-856) (noting that until May of 1996, Murphy had never heard of the Vienna Convention on Consular Relations, nor had he been informed of any rights he might have had under the treaty); see also id. at 4-6 (noting that the Commonwealth of Virginia had never informed him of his rights under Article 36 of the Convention either between arrest and sentencing or in the four years since his sentencing).
(245.) Id. at 7-8.
(246.) Murphy v. Netherland (E.D. Va. July 26,1996) (No. 3:95-CV-856), at 6.
(247.) See id. (quoting language from the preamble of the Vienna Convention which noted that the "purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States"). But see Shank & Quigley, supra note 4, at 720 (describing the rights under the Vienna Convention as a "crucial issue in human rights protection").
(248.) Id. at 7.
(249.) See id. at 7-8 (citing Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied, 117 S. Ct. 487 (1996)) (noting that Murphy's case was "weaker" because the court was left to speculate about what evidence the Mexican consulate would have produced).
(250.) See id. at 8.
(251.) See id. at 8, 10.
(252.) Appellant's Opening Brief, Murphy v. Netherland, No. 96-14 (4th Cir. filed Jan. 14, 1997). In support of Murphy's appeal, the Mexican government also filed a brief. Amicus Curiae Brief of the United Mexican States, Murphy v. Netherland, No. 96-14 (4th Cir. filed Jan. 14, 1997).
(253.) See Appellant's Opening Brief at 40, Murphy (No. 96-14).
(254.) Id. at 10. Article 36(2) of the Vienna Convention requires "that the said laws and regulations [of the receiving State] must enable full effect to be given to the purposes for which the rights accorded under this Article are intended." Vienna Convention, supra note 31, 21 U.S.T. at 101, 596 U.N.T.S. at 292-94. Alternatively, Murphy argued that he had cause for any alleged procedural default:
Cause is established by showing that a legal or factual claim is not
reasonably available to counsel during state proceedings or by showing that
interference or misconduct by the state hindered or impeded the petitioner's
ability to assert the claim. Both exist here. The District Court found that
Murphy's Convention claim were a `sheer novelty' and that the Commonwealth
had engaged in `defiant and continuing disregard' for a valid treaty of the
See Appellant's Opening Brief at 10, Murphy (No. 96-14). Moreover, the procedural bar of Murphy's claim "not only fails to remedy Virginia's clear violation of law but also will embolden Virginia (and other states) to persist in such unlawful conduct in other cases since they will not have to fear any repercussions from their flagrant disregard of the Vienna Convention." Amicus Curiae Brief of the United Mexican States at 3, Murphy (No. 96-14).
(255.) See Appellant's Opening Brief at 25, Murphy (No. 96-14).
(256.) Id. at 26-28.
(257.) See id. at 29 ("Article 36 of the Convention exists primarily to ensure that foreign nationals receive in a country's courts treatment equal to that given native defendants."). Murphy was the only one of the six defendants not offered a plea bargain by the prosecution. See id. at 27. The prosecutor argued in an affidavit that he "would not have entered into a plea agreement with Murphy under any circumstances because of Murphy's primary role in the murder and the fact that he recruited others to participate in the murder." Id. at 30. However, Murphy argued that neither of these factors distinguished Murphy sufficiently from his codefendants so as to warrant the imposition of the death penalty. See id. Specifically, Murphy argued that the "pretextual nature" of the decision to single out Murphy for the death penalty "was unconstitutionally founded on national origin [discrimination]." Id. at 30.
(258.) Id. at 35.
(259.) See id.
(260.) See id. at 35-36.
(261.) "Structural error" is defined by one court as an error which affects the "framework within which the trial proceeds, rather than simply an error in the trial process itself." Id. at 36 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
(262.) "Trial error" is error that is confined to "discrete moments in the course of an otherwise fair trial." Id. (quoting Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir.), Petition for cert. filed, 65 U.S.L.W. 3322 (U.S. Oct. 15, 1996) (No. 96-590)).
(263.) Id. at 37-38.
(264.) See id. at 38.
(265.) See Breard v. Commonwealth, 445 S.E.2d 670, 673 (Va. 1994).
(266.) See Paraguay v. Allen, No. CIVA.3:96CV745,1996 WL 732099, at *1 (E.D. Va. Nov. 27, 1996). The court granted the motion to dismiss the petition for a writ of habeas corpus in a memorandum opinion decided on the same day. See Breard v. Netherland, No. CIV.A.3:96CV366, 1996 WL 732098, at *1 (E.D. Va. Nov. 27, 1996).
(267.) See Breard, 1996 WL 732098, at *2.
(268.) Id. at *6.
(269.) Id. (citing Murphy v. Netherland, No. CIVA.3:95CV856, at 6-8 (E.D. Va. July 26, 1996)). This sweeping assertion is tempered by the fact that the court did not actually reach the merits on this point-holding that the claim was procedurally defaulted and federal review was barred. See id. The court rejected Breard's claim that Virginia's persistent failure to comply with the Vienna Convention provided just cause for the default, noting "[Virginia's] failure to comply with the Vienna Convention did not prevent Breard's counsel from raising the issue during state proceedings. The only predicate fact required to raise the claim was the knowledge of Breard's foreign nationality." Id. The court stated that the knowledge of the Vienna Convention claim was imputed to Breard through the several attorneys that had represented him at various stages of his trial, appeal, and habeas corpus proceedings. See id.
(270.) See Paraguay, 1996 WL 732099, at *1-.*2. In particular, the Paraguayan government requested the court:
1. Declare that [Virginia] violated the Vienna Convention and Friendship Treaty by failing to notify [Paraguay] of Breard's arrest.
2. Declare that [Virginia] continue[s] to violate both treaties by failing to afford [Paraguay] a meaningful opportunity to give Breard assistance during the proceedings against him.
3. Declare Breard's conviction void.
4. Enjoin [Virginia] from taking any action based on the conviction and declare that any further action based on the conviction is a continuing violation of the treaties.
5. Grant an injunction vacating Breard's conviction and directing defendants to abide by the treaties during any future proceedings against Breard.
Id. at *2.
(271.) See id.
(272.) Id. at *3.
(273.) See id. The Eleventh Amendment to the United States Constitution reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.
(274.) See Paraguay, 1996 WL 732099, at *2.
(275.) See id. (citing Green v. Mansour, 474 U.S. 64, 68 (1986)).
(276.) Id. at *3.
(278.) See Vienna Convention, supra note 31, art. 36(1)(b), 21 U.S.T. at 101, 596 U.N.T.S. at 292.
(279.) Paraguay v. Allen, No. CIVA.3:96CV745, 1996 WL 732099 (E.D. Va. Nov. 27, 1996), appeal docketed, No. 96-2770 (4th Cir. Dec. 10, 1996).
(280.) Telephone Interview by Joedaniel Horne with William H. Wright, Jr., Attorney for Mario Benjamin Murphy, Hunton & Williams (Jan. 21, 1997).
(281.) Although there is no definitive count of the foreign nationals on death rows around the country, the number has been estimated at 30-40. See id.
(282.) See Shank & Quigley, supra note 4, at 748.
(283.) See id. at 730.
(284.) See id. at 748.
(285.) See Vienna Convention, supra note 31, art. 14, 21 U.S.T. at 87-88, 596 U.N.T.S. at 274. Article 14 of the Vienna Convention reads in part: "As own as the head of a consular post is admitted even provisionally to the exercise of his functions, the receiving State shall immediately notify the competent authorities of the consular district." Id.
(287.) These rights are derived from a decision of the United States Supreme Court. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
(288.) See Hernan de J. Ruiz-Bravo, Suspicious Capital Punishment: International Human Rights and the Death Penalty, 3 San Diego Just. J. 379, 394 (1995).
Victor M. Uribe, Law Degree, Facultad de Derecho de la Universidad Michoacana de San Nicolas de Hidalgo, Morelia, Mexico, 1990; LL.M., University of Houston Law Center, 1996. Mr. Uribe is a member of the Mexican Foreign Service since 1993 and is currently the Consul in charge of the Protection Department at the Consulate General of Mexico in New Orleans, Louisiana. The author would like to acknowledge the work of Mexican consular officials, who, in their daily duties, strive for the respect of human rights of Mexicans all over the world.
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|Author:||Uribe, Victor M.|
|Publication:||Houston Journal of International Law|
|Date:||Jan 1, 1997|
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