Monday, February 13, 2006

Federal District Court Rejects VCCR Individual Rights

Last week a federal district court in Virginia issued an important decision in Bell v. True, available here, holding that the Vienna Convention does not create individual rights. Here is a key excerpt:
[T]he ICJ in LaGrand did not go so far as to hold that Article 36 of the Vienna Convention creates individually enforceable legal rights that a detainee may assert in a domestic criminal proceeding to reverse a conviction. However, a few years later in Avena, the ICJ explained that "what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration." Avena, 2004 I.C.J. at 65. Thus, Avena did hold that the United States has an obligation to permit detainees to raise Article 36 claims in our domestic courts. While Avena and, to a lesser degree, LaGrand support Bell's contention that Article 36 of the Vienna Convention creates individually enforceable rights of consular notification, these ICJ decisions do not constitute binding precedent on domestic cases involving different parties. The statute of the ICJ states that its decisions have "no binding force except between the parties and in respect of that particular case." Statute of the International Court of Justice, Article 59. "Just as I.C.J decisions are not considered binding precedent by the I.C.J, nor are they considered authoritative statements of international law in domestic courts."...

In light of the LaGrand and Avena cases, the Supreme Court's vague comments on whether Article 36 is individually enforceable, the State Department's position on the issue, and the general presumption that international treaties do not confer individual rights, "[i]t remains an open question whether the Vienna Convention gives rise to any individually enforceable rights." United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir.2001). Indeed, one circuit has held that the Vienna Convention confers individual rights, other circuits have held that it does not, and still others have stated that it remains unclear. See United States v. Villa-Ortega, 2005 U.S. Dist. LEXIS 28234, at *11 (D.Kan.2005) (citing a Seventh Circuit case holding it does confer individual rights; First, Second, Fifth, and Sixth Circuit cases holding that it does not confer individual rights; and Third, Ninth, and Tenth Circuit cases stating that it is unclear). Because no clearly established federal law directs that Article 36 creates an individually enforceable right to consular access, it cannot be said that the Supreme Court of Virginia's determination that it does not confer such a right is contrary to, or involves an unreasonable application of, clearly established federal law. Thus, I must deny relief on this claim.
Of course, it is anticipated that in two pending cases the Supreme Court will clarify whether the Vienna Convention creates individually enforceable rights. The cases of Bustillo v. Johnson and Sanchez-Llamas v. Oregon are scheduled for oral argument on March 29, 2006. The Supreme Court briefs in those cases have been submitted and provide much fodder for thought.

Law professors who argue in an amici brief (2005 WL 3530557), available here, that the Vienna Convention does create individually enforceable rights are David Sloss, David Bederman, Frederic Bloom, Erwin Chemerinsky, Sarah Cleveland, Constance De La Vega, William Dodge, Martin Flaherty, Greg Fox, Roger Goldman, Laurence Helfer, Ronald Slye, Beth Stephens, Michael Van Alstyne, Beth Van Schaack, David Weissbrodt, and Ingrid Wuerth.

Law professors who argue in an amici brief (2006 WL 259988), available here, that the Vienna Convention does not create individually enforceable rights are Paul Stephan, Samuel Estreicher, John Harrison, Julian Ku, John McGinnis, Mark Movsesian, Ruth Wedgewood, Mark Weisburd, Ann Woolhandler, and Ernest Young.

Julian has posted about these cases here and about law professor amici briefs here.