Vienna Convention (Consular Relations)

• Author: International Law Group

October 21, 1998, was a bad day for the alien smuggling operation of Juan Chaparro-Alcantara and Jaime Romero-Bautista. First, their van broke down in South Jacksonville, Illinois. When the police came, they found out that the 13 passengers were undocumented Mexicans. Finally, the police arrested the two men for transporting these aliens.

Both defendants are Mexican nationals permanently residing in the U.S. An officer informed them of their Miranda rights, but failed to mention their rights under the Vienna Convention to contact the Mexican consulate [Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S. 261] The two then made inculpatory statements.

Article 36(1)(b) of the Consular Convention provides in part that: "The said [arresting] authorities shall inform the person concerned without delay of his [consular notification] rights under this sub- paragraph."

When defense counsel got wind of the Immigration and Naturalization Service's (INS) plan to deport the passengers, he objected, claiming that some of the passengers had made statements that contradicted the Government's version of the facts. A district court granted a motion to keep the passengers in the U.S. for a time, but eventually released them for deportation.

The defendants then moved to suppress their inculpatory statements because U.S. authorities had not informed them of their Article 36 rights to notify their consular officials. They also challenged the deportation of the passengers who may have been material witnesses. From their convictions, defendants appealed but the U.S. Court of Appeals for the Seventh Circuit affirms.

As a general rule, international agreements and agreements between the U. S. and other sovereign nations do not create judicially enforceable individual rights within the U. S. The courts have acknowledged certain exceptions to that rule, and have conceded that Article 36 of the Consular Convention "arguably confers on an individual the right to consular assistance following arrest" (see Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam)). Like the Ninth Circuit in Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (see 2000 International Law Update 63), the Court does not squarely decide this issue. In this case, the Court deems it enough to assume that the Convention does create such an individual right and directly to confront whether an exclusionary rule would be an appropriate sanction for a...