Southern Criminology, Law and the ‘Right’ to Consular Notification in Australia, New Zealand and the United States

This paper investigates the implementation of Article 36 of the Vienna Convention on Consular Relations in Australia, New Zealand and the United States (US) by using a Southern approach to examining law. We describe the incorporation of Article 36 from a defendant‐ centred perspective under Australian and New Zealand laws governing police procedure, and the commensurate jurisdictional tensions it has generated in the US. We then empirically analyse 16 non‐capital US cases to identify the type of offence, the nationality and perceived English‐speaking competency of the foreign suspect, and the point at which the alleged Article 36 violation is canvassed in legal arguments. This analysis highlights the importance of a defendant‐centred Southern criminology of law in critically assessing the implementation of international legal requirements into domestic criminal justice practice.


Introduction
Southern criminology's emphasis on 'power relations embedded in the hierarchical production of criminological knowledge' (Carrington, Hogg and Sozzo 2016: 2) is well-suited to the critical examination of international and national responses to alleged crimes by foreign nationals. Broader crimmigration strategies (Bosworth and Kaufman 2011) reflect contemporary forms of global legal pluralism (Berman 2012), consisting of 'autonomous … international treaty norms and many autonomous sets of domestic criminal norms with quite distinctive points of authority' (Boister 2015: 14) that often lack clear guidance or accountability for law-enforcement decisionmaking (Bowling and Sheptycki 2015). Foreign nationals in pre-trial or post-conviction custody often bear the brunt of highly questionable domestic crimmigration policies that are regulated in distinct ways at varying legal scales (Dorsett and McVeigh 2012;Valverde 2015) under a combination of international crime control and human rights treaties (Andreas and Nadelmann 2006). Consular notification is an increasingly significant yet under-researched branch of diplomatic law that directly shapes domestic police procedure. Statistics on the number of foreign nationals investigated, charged with, convicted of, imprisoned for, or victimised by crime are rare (Klein 2011;c.f. Venditto and Mouzos 2006). However, in Australia each year, up to ten million tourists (Tourism Australia 2017) and one million registered foreign workers (Australian Government, Department of Home Affairs 2017) could be eligible for assistance from 119 foreign consulates located throughout the country (Department of Foreign Affairs and Trade n.d.). An average of four daily requests for some form of consular assistance is made by Australian sole or dual citizens touring, working or residing abroad temporarily or permanently (Warren and Palmer 2015: 5-6). Most involve advice on how to deal with a lapsed visa or passport. However, consular offices also provide assistance for accusations of serious criminal offending and victimisation affecting their nationals, as well as more complex claims for diplomatic or political asylum and related legal immunities (Lavander 2014;Lee and Quigley 2008;Warren and Palmer 2015;Wojcik 2013). This defendant-centred (Gless 2015) emphasis can avert the possibility 'a local problem' will evolve into a more serious 'international one' (Loader and Percy 2012: 218) with bi-or multi-lateral political and economic implications. This paper examines the distinct methods of incorporating Article 36 of the Vienna Convention on Consular Relations (VCCR 1963(VCCR :2005 into Australian, New Zealand and United States (US) law, while developing a defendant-centred Southern criminology of law. First, we explain our Southern approach to law (Warren and Palmer 2018) and its applicability to key elements of the Article 36 provisions. Second, we explain Australian and New Zealand legislation governing consular notification, and describe available judicial rulings examining its enforcement. Third, we summarise US scholarly and judicial arguments that 'bracket' (Blomley 2014) Article 36 within a contested jurisdictional 'dialogue' between the International Court of Justice (ICJ), the US Supreme Court, and state criminal trial and appeal courts (Berman 2012;Rogoff 2006). We then outline the results of a preliminary empirical investigation into how salient facts about the alleged crime, the foreign suspect's background, and the nature of the police encounter are classified in a sample of 16 non-capital cases that denied the foreign national's post-conviction arguments. We conclude by highlighting the importance of a defendant-centred Southern criminology of law when critically examining the incorporation of international law into domestic criminal procedure.

Southern criminology, law and Article 36 of the VCCR
The VCCR is an example of global consensus-building aimed at protecting foreign nationals in unfamiliar criminal justice systems (Lee and Quigley 2008). However, domestic legislatures and courts ultimately determine whether any international legal issue is 'bracketed' as a procedural or jurisdictional requirement (Dorsett and McVeigh 2012;Valverde 2015), or whether these issues remain completely excluded and 'outside of law' (Blomley 2014: 136 facts and relevant legal principles 'more or less independently of their surrounding context', domestic institutions attempt to 'stabilise and fix a boundary' for the permissible scope of international legal protection within domestic law (Blomley 2014: 135). A Southern criminology of law interrogates the potentially selective, biased, prejudicial or counterintuitive impacts of these processes on crime suspects, law enforcement personnel and others immediately affected by their implementation (Warren and Palmer 2018).
Article 36 is considered a self-executing requirement that applies automatically on ratification (Howell 2013) and confers specific rights on consular officials vis-á-vis each ratifying nation (Buys, Pollock and Pellicer 2011). It is commonly viewed as placing a positive obligation on police to ensure any foreign national in custody is informed of their right to consular assistance (Stransky 2007: 54). Article 36 stipulates the 'receiving state' must, 'without delay', notify 'the consular post of the sending state' when one of its nationals is 'arrested or committed to prison or to custody pending trial or is detained in any other manner' (VCCR 1963(VCCR : 2005. Most supplementary bi-and multi-lateral treaties specify that notification must occur within a maximum number of days or hours (Buys, Pollock and Pellicer 2011: 464-466;Lee and Quigley 2008). Foreign suspects can receive private consular visits and request help to obtain independent legal representation or communicate with family and friends (Art 36.1 (a) and (c) VCCR 1963VCCR : 2005, but are only obliged to accept assistance in a small number of jurisdictions.
In Australia and New Zealand, Article 36 supplements common law 'guidelines for the conduct of police officers when interrogating Aboriginal persons and … migrants' in the presence of an interpreter or 'prisoner's friend' (R v Anunga and Others;R v Wheeler 1976: 413-415). When, where and how these rights are communicated and enforced is of 'vital importance' (New Zealand Law Commission 1994: 4) in averting potential misunderstandings flowing from the 'extreme imbalance of power' facing Indigenous people (Douglas 1998: 29) and foreign nationals in police custody. These spatial and temporal issues are also of growing importance in critical socio-legal inquiry (Blomley 2014;Valverde 2015), and are intentionally or inadvertently magnified by broader social attitudes towards racial difference or crimmigration.
The US jurisdictional focus in this article examines whether 'decisions of international tribunals may intrude into the normal operation of … domestic legal systems' (Rogoff 2006: 408). This emphasis turns on macro questions of international political comity (Stransky 2007;Warren and Palmer 2015: 292), which are complicated when federal authorities ratify international treaties, yet most criminal offences are investigated and prosecuted by state or provincial agencies (Garland 2013;Howell 2013Howell : 1354James and Warren 2010). Although potentially having the same legal effects when a foreign national is denied consular assistance, our analysis suggests procedural or jurisdictional bracketing can have significant implications on ensuring formal legal accountability for routine police practice. Police guidelines (Bartels 2011) and operational discretion can temper these communicative obligations if it appears delays in providing assistance will contribute to the destruction of evidence, witness tampering, or threats to public safety (s. 23L Crimes Act 1914 (Cth)). In New South Wales, the written caution informs suspects that 'investigating police do not have to wait for more than 2 hours' for the consular official to arrive before commencing an interview (New South Wales Police Force n. . As the next section demonstrates, US jurisdictional debates on consular notification make only speculative references to the quality of assistance in the specific contexts of police detention.

Article 36 and US legal bracketing
Until Article 36 is incorporated into federal or state policing legislation, convicted foreign nationals must prove a lack of consular assistance caused 'actual prejudice' during an investigation or trial (Broughton 2012: 206 appeals had no 'prospect of success', and proposed federal laws incorporating Article 36 were mere 'hypothetical legislation' with no legal implications (Garcia v Texas (2011) 131 S Ct 2866: 2868). These factors characterise the broader jurisdictional tension between the ICJ and the US Supreme Court that brackets out consideration of the experiential contexts of foreign nationals' encounters with police and justice officials, and ultimately preserves state autonomy over their regulation (Howell 2013;Mallory 2016).
Before and since Garcia, US debates have focused almost exclusively on the impact of Article 36 in capital cases immediately pending a foreign national's execution (Moss 2012;Stransky 2007), while a small number of states incorporate consular notification into police procedure with no legal consequences for non-compliance (Howell 2013). Below, we document 16 non-capital cases involving alleged Article 36 violations dating from 1 January 2010 to the Garcia ruling on 7 July 2011. Our concern is to identify how the legal impact of the types of crime and contexts of police or pre-trial custody are bracketed under the US jurisdictional approach, and its comparability to the Australian and New Zealand procedural emphasis.
US non-capital Article 36 claims, January 2010-July 2011 Table 1 summarises the charges, sentences and facts in six cases (37.5% of the 16) reviewing noncapital homicide convictions.     The majority of foreign suspects in this sample were from Central or South America (56.25%) where Spanish (66.7%) or English (33.3%) are recognised national languages. Two European claimants held Serbian and dual Swedish-Jordanian citizenship respectively. Aside from the Chinese gang, two cases involved West African nationals from countries where English is the recognised language. This relative balance between English and non-English speaking foreign nationals has broader impacts on political comity, especially given the Southern criminological dimensions of US extraterritorial drug enforcement activity (Carrington, Hogg and Sozzo 2016;Warren and Palmer 2015: 233-289). As with most capital cases (Shiek 2006), foreign nationals in this sample generally became aware of Article 36 after conviction, with only two cases involving requests for consular assistance that were subsequently denied by police. However, case records are also vague on the timing of most alleged Article 36 violations, which reflects the permeation of the jurisdictional issues examined by the ICJ and the US Supreme Court into post-conviction state appeal courts.
Each case considers whether a lack of consular notification is sufficient to justify a judicial remedy given the suspect's language skills and personal vulnerabilities (Rogoff 2006). The following documents how these contextual issues are bracketed alongside four intersecting aspects of the broader jurisdictional dialogue between the ICJ and the US Supreme Court (Howell 2013) to limit the prospect of judicial intervention in these non-capital post-conviction appeals. State review courts openly question the accuracy of claims police failed to communicate the right to consular assistance, or that such failures prejudiced the final verdict (Lawal v United States of America 2011 US Dist LEXIS 22214). An appeal by a Jamaican national convicted of possessing 41 kilograms of marijuana with intent to distribute, demonstrates the onus for seeking consular assistance rests primarily with the foreign national, and legal remedies are unavailable if the right to consular notification is not recognised under federal or state law. This case brackets Article 36 as a non-binding choice police, legal counsel or arraignment courts can convey at their discretion, or foreign nationals can request but not positively assert. Hence:

The 'right' to consular notification
[i]f Jackson was truly interested in assistance from the Jamaican consul, nothing prohibited Jackson from writing to the consulate or asking his trial counsel to do so. (United States of America v Jackson 2011 US Dist LEXIS 2377: 11) There is also no guarantee consular assistance would be useful in navigating the complexities of the US criminal justice process. Rather, notification is bracketed as a discretionary choice enabling the consulate to determine whether assistance should be provided if a request is made . Therefore, any potential remedies, such as the exclusion of prejudicial evidence, must conform to recognised domestic laws, which involve speculative assessments of how third-party assistance might have changed a trial outcome by altering the focus of an investigation, a suspect's plea, or counsel's legal arguments.

Procedural default and ineffective counsel
The 'procedural default' rule prevents continuous post-conviction appeals when new facts or legal issues emerge. The ICJ has criticised the circular effects of this requirement, as many foreign nationals and consulates only become aware of an Article 36 violation after conviction (Shiek 2006

Conclusion
Article 36 of the VCCR recognises foreign nationals can experience disadvantage in unfamiliar justice systems. Our Southern criminological approach uses a defendant-centred perspective to examine how the impact of consular notification is often 'placed outside of law', yet simultaneously remains a central 'product of law' (Blomley 2014: 136). For example, Australian case law examines the nature of police cautioning to determine the admissibility of evidence, but only the New Zealand case of Bin Zhang considers the limited value of consular notification in fleeting forms of police detention. In direct contrast, the US jurisdictional schism between the ICJ and US federal and state courts (Berman 2012) overlooks the immediate '[s]patial particularities' of police encounters with foreign nationals entirely, which are 'erased in pursuit of a universal space of equality' (Blomley 2014: 137) under generic legal requirements applicable to all people. This form of legal bracketing places an almost impossible onus on foreign nationals to prove consular assistance would have altered the investigative focus, legal arguments or trial outcome.
The concept of the 'prisoner's friend' under Australia's Anunga guidelines is a useful example of Southern procedural law that reflects the pastoral value of third-party assistance. Our preliminary study suggests that linguistic competence does not necessarily equate with a full understanding of foreign policing or justice procedures. However, available remedies are limited regardless of whether consular notification is bracketed as a procedural or jurisdictional issue. For example, Australian crimmigration strategies are gradually eroding admissibility standards to facilitate immediate forms of evidence collection regardless of the context of the police encounter or the foreign suspect's wellbeing. This is also evident in our US sample: there are no specific remedies for alleged contraventions of an international obligation and the US Supreme Court is unwilling to formally recognise pending state or federal congressional action. These issues become more salient when the spatial and temporal dynamics of police encounters with foreign nationals are emphasised in the critical examination of judicial decision-making (Blomley 2014;Valverde 2015). We suggest this defendant-centred emphasis is crucial to the development of a Southern criminology of law that recognises the complex and diverse ways international legal requirements can be incorporated into domestic policing, pre-trial and post-conviction accountability mechanisms available to foreign nationals suspected of, or victimised, by crime.