Consular Relations

• Pages: 70-72

Page 70

Ricardo de los Santos (Plaintiff ) was a citizen of the Dominican Republic whom New York authorities arrested in 1992 and charged with attempted robbery. He pled guilty and the judge sentenced him to six months' in prison and fi ve years' probation.

Three years later, Plaintiff fi led a million-dollar suit pro se in a New York federal court under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350. He alleged that the local prosecutor and City Police had violated Article 36 of the Vienna Convention on Consular Relations [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S 261; in force for U.S. Dec. 24, 1969] by failing to tell him that he could contact the Dominican consulate for assistance. The District Court dismissed Plaintiff's suit sua sponte under Civil Rule 12(b)(6).

Plaintiff then obtained counsel, and appealed the dismissal. He contended that Convention Article 36 does confer an justiciable right to be told about the availability of consular notifi cation; and that federal courts may enforce this right not only under ATCA, but also under the civil rights act (42 U.S.C. § 1983) and directly under the Convention itself. The U.S. Court of Appeals for the Second Circuit, however, affirms.

The Court points to the split between the U.S. Courts of Appeals on these questions and to the fact that the Supreme Court has not yet authoritatively answered it. (Noteworthily, four of the nine current Justices have expressed their agreement with Plaintiff 's theory in Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2677-78 (2006).

In the Head Money Cases, 112 U.S. 580 (1884), the Supreme Court declared that a treaty "is primarily a compact between independent nations." Id. at 598. As such, "[i]t depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it." Id.

The Head Money Court also acknowledged that treaties may also create individual rights "which partake of the nature of municipal [i.e., domestic] law, and which are capable of enforcement as between private parties in the courts of the country." Id. Noting that the Supremacy Clause places international treaties on the same legal footing as federal law, the Court concluded that "[a] treaty, then, is a law of the land as an act of [C]ongress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined." Id. at 598-599. "And when such rights are of a nature to be enforced in a court of...