International Treaties — How Far Apart Are We?

This blog is all about cutting through the hype, so let me take that approach to one issue that makes the news now and again in Germany.

Let’s say you’re a foreign national in country X, and the police arrest you. An international treaty called the Vienna Convention on Consular Relations provides that, upon request, you must be given immediate access to your consulate. They can help you understand the legal system of the country you are in, and perhaps assist you in finding proper legal representation.

Many of the foreign nationals on in US prisons were not told of their right to contact their consulate when they were charged with a crime. Usually, this is the result of oversight; most law enforcement in the U.S. is local, and it’s likely that many police officers in Waxahachie, Texas or Klamath Falls, Oregon has never heard of the Vienna Convention on Consular Relations. It’s also sometimes hard to actually determine whether someone in police custody is a foreign national, especially if they lie about this fact because they are illegally in the USA and fear being deported to their home country.

Germans are likely to recognize the Vienna Convention (Wiener Abkommen, in everyday language) because it was big news not so long ago. In 1999, Germany sued the United States before the International Court of Justice (ICJ) on behalf of two German nationals, Walter and Karl LaGrand, who had been convicted and sentenced to death in Arizona for 1982 bank robbery in which one man was killed and a woman severely injured. The ICJ issued an order requesting the United States to stop the executions, but the State of Arizona concluded that this order was not binding upon its own justice system, and executed the brothers even before the ICJ had issued its final judgment. The decision itself is somewhat complex, you can read a summary of the case here. The case was extremely controversial; German Green Claudia Roth condemned (G) the United States as "arrogant" and claimed it was setting itself above international law.

I’m not going to get into a discussion of the merits of the LaGrand case (though they’re quite interesting). I mention it simply to show how often the Vienna Convention often serves as a focus of international criticism of the United States, especially when it is violated in a death penalty case. Paraguay and Mexico have also sued the U.S. on behalf of their nationals before the ICJ and received judgments favorable to their legal positions. To avoid more of these embarrasing judgments, the President withdrew the United States from the jurisdiction of the ICJ on March 7, 2005. (For the record, I disagree with that decision). This means that the U.S. is still bound to obey the Vienna Convention, but cannot be sued in front of the ICJ for a violation.

If you look behind the headlines, though, the issues raise by the Vienna Conventions turn out to pose complex problems for all countries, among them the following:

  1. Does the Vienna Convention give individuals rights? That is, can you sue personally in front of a court of law when you are not given the proper warnings? Perhaps the Vienna Convention doesn’t give persons specific rights, in which case a violation can only be resolved through diplomatic means (i.e., a letter of protest, or a visit by a consul).
  2. What’s the remedy? Say you confess to a crime after not receiving your Vienna Convention warning. Can that confession be used against you in a court of law, or must it be excluded from later judicial proceedings?
  3. What if you don’t raise the issue in time? What happens if you don’t find out about the Vienna Convention violation until long after the trial, when you no longer have a right to file an appeal? Should international law take precedence over procedural rules, common in most legal systems, that require prisoners to raise all of their legal claims as early in the process as possible?
  4. Who bears responsibility for respecting the Convention? In countries like the United States, which have extremely decentralized criminal justice systems, the national government (which is the one that signs treaties) has little influence on local law enforcment. Every state in the U.S. has its own criminal code, and 98% of executions are carried out under the law of specific states. In these cases, the federal government has little power to interfere with the legal process in one particular state, and the President has no power at all. (Very few Europeans, in my experience, understand this fact).

These questions turn out to be important, and difficult for every country that has signed the Vienna Convention. In 2006, the United States decided a case called Sanchez-Llamas v. Oregon. The majority of the U.S. Supreme Court did not answer the question of whether the Vienna Convention gives individuals rights, but they seem to have implied that it did so. The majority then held that you could "procedurally default" your claim that the police violated your Vienna Convention rights if you did not raise it at the proper time during the process. Further, the Court held, even if you do complain at the right time, this does not meant that your confession to the crime should be excluded from evidence at your trial. In Sanchez-Llamas, the defendant had been given the standard Miranda warnings ("You have the right to remain silent…") in English and Spanish before he confessed. Thus, he hadn’t been told that he had a right to contact his consulate, but he had been told of all of his other rights, including the right to a free lawyer and the right to remain silent. This fact, the majority held, reduced the impact of any possible violations of the defendant’s rights under the Vienna Convention.

Four Justices of the U.S. Supreme Court dissented. They argued that the Vienna Convention does automatically create rights that individuals can personally vindicate before U.S. courts (a point the majority seemed to assume but did not specifically decide), and that suppressing confessions might, in some cases, be an appropriate remedy for Vienna Convention violations. The dissenting opinion (by Justice Stephen Breyer) gives much more prominence to the reasoning of the ICJ’s decisions on this issue, and suggests (to my mind), a much more effective way of actually implementing the international court’s reasoning within the U.S. legal system. Alas, these arguments did not carry the day.

But what do I see when I open my Neue Zeitung fuer Strafrecht the other day but a decision (G) from Germany’s Federal Constitutional Court (FCC) on very similar issues? That case involved a Turkish national being investigated for murder. Again, no Vienna Convention warnings. The court took evidence from the very police officers who had failed to advise the defendant of his Vienna Convention rights. The Federal Supreme Court of Justice held that this evidence was admissible, and upheld the conviction.

When the defendant turned to the FCC (Germany’s highest court for Constitutional questions, which has the power to revise judgments of lower courts on Constitutional grounds), that court agreed with the lower courts that the Vienna Convention did, in fact, create personal rights of action. However, the lower courts had not taken adequate notice of the ICJ’s decision in cases like LaGrand and Avena, which require national courts to devise adequate practical guarantees of the enforceability of Vienna Convention rights. Put simply, the ICJ has not told member states exactly what they have to do to enforce Vienna Convention rights, but has told them that they must take some effective action in this regard.

The FCC thus sent the case back to the lower German court with instructions to consider the remedy for a Vienna Convention violation more carefully. It did not, however, tell the lower court to suppress the testimony of the police officers. In fact, the FCC noted, just as the U.S. Supreme Court had, that many of the standard German warnings to criminal suspects (for example, that they are entitled to an attorney), overlap with the protections that the Vienna Convention is supposed to guarantee. Thus, perhaps any violation of the suspect’s Vienna Convention rights might not have had much of an impact on his trial. The Court also noted that the mere failure to tell a suspect of his rights under the Vienna Convention before interrogating him does not necessarily constitute a "breach" of the convention.

Thus, at the end of the day, the FCC has said that the Vienna Convention is to be taken seriously and that the ICJ’s cases interpreting the convention are worthy of careful study. However, the decision whether to actually attach any consequences to a violation of the Convention in any specific case will depend on the interest-balancing common in German legal adjudication: the violation of the Vienna Convention will be balanced against the State’s interest in prosecuting crime, the importance of the evidence that might be excluded, etc.

Therefore, it’s entirely possible that the violation of the Vienna Convention will, at the end of the day, result in the same practical result in both the U.S. and in Germany: the country’s courts will hold that (1) the protections for defendants offered by that country’s own judicial system are sufficient to protect the defendant’s rights; and (2) all evidence gathered by the state can be used against the defendant even if there was a violation of the Vienna Convention in his case.

There are differences, of course. I, for one, would personally would rather see the United States take a more aggressive approach to implementing the Vienna Convention (as is suggested by the dissenting opinion in Sanchez-Llanas). Further, the possibility of someone being executed  in the United States adds a dimension that is missing in all countries which no longer practice capital punishment. But I think the difference between the two countries’ practical policies in this complex area of the law are not as great as some news coverage might have you believe.

3 thoughts on “International Treaties — How Far Apart Are We?

  1. Hello Andrew,
    This is a general layout comment and not on the above article. I use a larger font than you do. Your right hand column trims off the last 5 or so characters of every line. Makes for harder reading. Don’t know what can be done about it but if it is easily corrected , I thought I would mention it.
    Like your stuff generally. Mein Deutsch ist nicht gut. So I appreciate the english translation of things.


  2. I think the Convention is all about fair trial. If the defendant gets a fair trial by local standards, if he understands what’s going on, then it should be fine. If he is more like a tourist with limited language skills that could be taken advantage of by an overzealous attorney, then support from his embassy would help to establish a fair trial. The LaGrange case was more about death penalty and the convention was a mere tool to fight it, IMHO. Both brothers were long time residents and they knew very well what was going on. If you are in a foreign country and the police allows you to make a call, then call your embassy. If you are just locked away and tried in absentia, then you’re out of luck anyways. You wouldn’t get a fair trial, you would end up as a peon in a diplomatic struggle. Verhandlungsmasse statt Verhandlungssache, sozusagen.


  3. Hi, any chance you could contact me via my e-mail address I would love to briefly pick your brain about an essay I have to write! All about evaluating the German Legal system. Help would be beyond appreciated…
    Kind Regards


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s