the right to an interpreter under customary international...

THE RIGHT TO AN INTERPRETER UNDERCUSTOMARY INTERNATIONAL LAW

Julia Sherman*

INTRODUCTION

Over the past two decades, customary international law hasbecome a hotly debated subject in the United States, giving rise tonew theories on the relationship between international norms andthe common law. However, simply because the applicability ofcustomary international norms in U.S. courts has become foggy doesnot mean that the evolution of customary international norms hasslowed, nor that parties in U.S. courts should be hesitant to arguenew norms in U.S. state and federal jurisdictions.

This Note argues that the right to an interpreter 1 is a rightrecognized and protected by customary international law and, assuch, can be claimed by individuals in U.S. courts who have suffereda prejudicial violation. The right to an interpreter is generally viewedas a subsidiary right of the right to a fair trial; however, even as asubsidiary right, it is an important and necessary right that is wellestablished by state practice and opiniojuris. Moreover, the right is amore specified and definite norm of customary international law thanthe right to a fair trial and is thus more easily applicable in domesticjurisdictions, opening up the possibility for new customaryinternational law claims to be made in U.S. courts.

* J.D. Candidate 2017, Columbia Law School; MPhil 2014, University ofCambridge; B.A. (Hons) 2012, McGill University. The author would like to thankProfessor Lori Fisler Damrosch for her insightful comments on drafts of this Note,the staff of the Columbia Human Rights Law Review for their invaluable editing,and her family for their support.

1. For the purposes of this Note, "the right to an interpreter" is used as ageneral term for the right to language assistance in criminal proceedings,including both oral interpretation and translation of essential written documents,following the jurisprudence of international courts and tribunals which havegenerally considered the right to translation of essential written documents to bea subsidiary right of the broader right to an interpreter. The scope and content ofthe right to an interpreter is further explained in Part III.A and B of this Note.

COL UMBIA HUMAN RIGHTS LAW RE VIE W

The recognition of the right to an interpreter as a norm ofcustomary international law is important both in theory for theelucidation of international law and also in practice for individualswho have suffered a violation but lack an international forum inwhich they could vindicate their rights. The United States offers someof the strongest fair trial guarantees in the world, and, as a result,parties in U.S. courts can often look to the U.S. Constitution forprotection of their due process and fair trial rights. However, in somecircumstances, and as will be demonstrated with interpretationrights, international law may offer greater protection of specific fairtrial rights, leaving individuals who are unable to argue these rightsin U.S. courts vulnerable to a violation without an appropriatedomestic remedy. Identifying the right to an interpreter as a rightprotected under customary international law consequently helps toprovide greater protection of such rights for claimants in Americancourts. Moreover, because the right to an interpreter meets theheightened requirements of general acceptance and specificity set outby the U.S. Supreme Court in Sosa v. Alvarez-Maebain, theapplication of the right may help to reignite the use of customaryinternational norms in the United States.

This Note begins in Part II by arguing that the right to a fairtrial is a general norm under customary international law establishedby state practice and opiniojuris. However, the right to a fair trial istoo vague and indefinite to be invoked successfully in national courts,and especially not U.S. courts, which may apply a strict standard forcustomary international law norms after the Supreme Court'sdecision in Sosa v. Alvarez-Maebain. Part III finds that the right toan interpreter has sufficient state practice and opinio juris to beconsidered a right under customary international law independent ofthe general right to a fair trial, and is not as problematic as the rightto a fair trial for application in U.S. courts. Finally, Part IV considersthe potential of the customary international right to an interpreterfor application in U.S. federal and state courts, arguing that the rightto an interpreter likely provides an additional layer of protection forindividuals who are insufficiently protected by interpretationstandards in federal or state jurisdictions. Ultimately, this Note aimsto cement the status of the right to an interpreter as a norm ofcustomary international law, for potential application in bothnational and international tribunals by individuals who have sufferedprejudicial violations of their rights.

[48.3

The Right to an Interpreter

I. RIGHT TO A FAIR TRIAL UNDER CUSTOMARY INTERNATIONAL LAW

The right to an interpreter is generally viewed as a subsidiaryright of the right to a fair trial and is intimately related to some of theessential elements of fair trials, such as the right to prepare anadequate defense and be present in court. 2 Consequently, it isarguable that customary international law provides for languageassistance primarily as an implied right under an internationalcustomary right to a fair trial. However, individuals who are arguinga violation of the right to an interpreter solely as a subset of theumbrella right to a fair trial face an uphill battle. In order to beconsidered demonstrative of customary international law, a normmust be supported by state practice and opinio juris,' requirementsthat the right to a fair trial, in general terms, satisfies. Yet, the rightto a fair trial is a right with uncertain scope and content undercustomary international law and thus is likely not readily applicablein national courts, unlike the customary right to an interpreter.

A. State Practice

In order to give rise to a new rule of customary internationallaw, state practice should be "both extensive and virtually uniform"and should occur "in such a way as to show a general recognition thata rule of law was involved."4 A survey of the history of the right to afair trial and its codification in national constitutions demonstratesthat there exists among states exactly the kind of general recognitionof legal obligation required under customary international law andprovides evidence of its extensive and virtually uniform practice.

2. See, e.g., Kamasinski v. Austria, App. No. 9783/82, 62 (Eur. Ct. H.R.Dec. 19, 1989) (describing the right to a fair trial as a constituent element of thegeneral right to a fair trial and related to the right to be present in court);Akbingdl v. Germany, App. No. 74235/01, 1 (Eur. Ct. H.R. Nov. 18, 2004)(finding that the accused person was not entitled to the translation of particulardocuments because they were not necessary to the preparation of the defence caseand thus not essential to the guarantee of a fair trial).

3. Statute of the International Court of Justice, art. 38, June 26, 1945, 59Stat. 1055, 1060, 33 U.N.T.S. 933; see North Sea Continental Shelf (Ger. v. Den.;Ger. v. Neth.), 1969 I.C.J. 3, at 74 (Feb. 20).

4. North Sea Continental Shelf, 1969 I.C.J. at 74.

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The modem conception of the right to a fair trial can betraced back to the Roman Lex Duodecim Tabularum,5 and throughthe Magna Carta, the Fifth, Sixth, and Fourteenth Amendments ofthe U.S. Constitution, ' and to Articles 6 and 9 of the FrenchDeclaration of the Rights of Man.8 Prior to the modem era of humanrights, the Charters of the Nuremberg and Tokyo War CrimesTribunals also guaranteed the right to a fair trial.9 Launching themodem era of human rights codification, Article 18 of the AmericanDeclaration of the Rights and Duties of Man 10 first protectedtwentieth-century fair trial rights some months before the UniversalDeclaration of Human Rights did the same.11

Since the UDHR recognized the right to a fair trial, the righthas been codified by human rights covenants and conventions aroundthe world. Perhaps most importantly, Article 14 of the InternationalCovenant on Civil and Political Rights protects the right to a fairtrial. 12 The right to fair trial is also protected by Article 6 of theEuropean Convention on Human Rights,13 the 1951 NATO Status ofForces Agreement, 14 Article 8 of the American Convention on Human

5. Patrick L. Robinson, The Right to a Fair Trial in International Law,with Speci c Reference to the Work of the ICTY, 3 BERKELEY J. INT'L L.PUBLICIST 1, 1 (2009) [hereinafter Robinson, Right to a Fair Tria.

6. SAMUEL WALKER, CIVIL LIBERTIES IN AMERICA: A REFERENCEHANDBOOK 147 (2004); see Magna Carta, 39; see also Robinson, Right to a FairTrial, supra note 5, at 2.

7. U.S. CONST. amends. V, VI, XIV; see also MARIANNE MASON,COURTROOM INTERPRETING 1 (2008) (describing fair trial rights as protected bythe U.S. Constitution).

8. Robinson, Right to a Fair Trial, supra note 5, at 3.9. See David Harris, The Right to a Fair Trial in Criminal Proceedings as

a Human Right, 16 INT'L & COMP. L.Q. 352, 352-53 (1967).10. American Declaration of the Rights and Duties of Man, Mar. 30-May 2,

1948, reprinted in HANDBOOK OF EXISTING RULES PERTAINING TO HUMANRIGHTS, OEA/Ser.L/V/II.60 Doe. 28, rev. 1, at 19 (1983).

11. Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 10,U.N. GAOR, 3d Sess., U.N. Doc A/810 (Dec. 10, 1948) [hereinafter UDHR];see Robinson, Right to a Fair Trial, supra note 5, at 2-5.

12. International Covenant on Civil and Political Rights, opened forsignature Dec. 16, 1966, art. 14, S. Exec. Doc. E, 95-2, at 28 (1978), 999 U.N.T.S.171, 177 (entered into force Mar. 23, 1976) [hereinafter ICCPR].

13. [European] Convention for the Protection of Human Rights andFundamental Freedoms, opened for signature Nov. 4, 1950, art. 6, E.T.S. No. 5,213 U.N.T.S. 221, 228 (entered into force Sept. 3, 1953) [hereinafter ECHR].

14. See Harris, supra note 9, at 352-53.

[48.3


Rights,15 Article 7 of the African Charter on Human and Peoples'Rights,16 Article 21 of the statute of the International CriminalTribunal for the former Yugoslavia,1 7 Article 20 of the statute of theInternational Criminal Tribunal for Rwanda, 18 Article 17 of thestatute for the Special Court for Sierra Leone,19 Article 67 of theRome Statute of the International Criminal Court,2° Article 35 theCharter for the Extraordinary Chambers of the Courts of Cambodia,21and Articles 15 and 16 of the statute for the Special Tribunal forLebanon. 22 The Human Rights Committee in General CommentNo. 32 has also clarified the content of the right to a fair trialcontained in the ICCPR.23

Moreover, as identified by Professor Bassiouni, the right to afair trial or hearing is enumerated in the national constitutions of

15. American Convention on Human Rights, opened for signature Nov. 22,1969, art. 8, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 (entered into force July 18,1978) [hereinafter ACHR].

16. African Charter on Human and People's Rights, adopted June 27, 1981,art. 7, 21 I.L.M. 58 (entered into force Oct. 21, 1986) [hereinafter AfricanCharter].

17. Statute of the International Criminal Tribunal for the Prosecution ofPersons Responsible for Serious Violations of International Humanitarian LawCommitted in the Territory of the Former Yugoslavia Since 1991, S.C. Res. 827,U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doe. S/RES/827 (1993), implementingReport of the Secretary-General Pursuant to Paragraph 2 of the Security CouncilResolution 803 (1993), U.N. GAOR, annex, 12, art. 21 (1993) [hereinafter ICTYStatute].

18. Statute of International Criminal Tribunal for the Prosecution ofPersons Responsible for Genocide and Other Serious Violations of InternationalHumanitarian Law Committed in the Territory ofRwanda and Rwandan CitizensResponsible for Genocide and Other Such Violations Committed in the Territoryof Neighboring States, Between January 1, 1994 and December 31, 1994,S.C. Res. 955, U.N. SCOR, 49th Sess., Annex, 3453d mtg. at 15, art. 20 U.N. Doe.S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (1994) [hereinafter ICTR Statute].

19. Statute of the Special Court for Sierra Leone, art. 17, U.N. Doe.S/2002/246, appendix II (2002), 2178 U.N.T.S. 138, 151 (entered into force April12, 2002) [hereinafter SCSL Statute].

20. Rome Statute of the International Criminal Court, opened for signatureJuly 17, 1998, art. 67, 37 I.L.M. 999, 2187 U.N.T.S. 90, 120, 129 (entered intoforce July 1, 2002) [hereinafter Rome Statute].

21. Law on the Establishment of Extraordinary Chambers in the Courts ofCambodia for the Prosecution of Crimes Committed during the Period ofDemocratic Kampuchea, art. 35, NS/RSM/1004/006 (2004) [hereinafter ECCCStatute].

22. Statute of the Special Tribunal for Lebanon, arts. 15, 16, U.N.Doc. S/RES/1757 (2007) [hereinafter STL Statute].

23. Human Rights Comm., General Comment No. 32: Article 14, U.N. Dec.CCPR/C/GC/32 (Aug. 23, 2007) [hereinafter General Comment No. 32].

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COL UMBIA HUMAN RIGHTS LAW RE VIE W [48.3

thirty-eight national constitutions: 24 Antigua and Barbuda, 25Bahamas, 26 Barbados, 2 Belize, 2 8 Bolivia, 2 9 Botswana, 30 Cameroon,3 1Canada, 32 Dominica, 33 Dominican Republic, 34 Fiji, 35 Gambia, 36Grenada, 3' Guyana, 38 Hungary, 39 Jamaica, 40 Kenya, 41 Kiribati, 42

24. M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice:Identifying International Procedural Protections and Equivalent Protections inNational Constitutions, 3 DUKE J. COMP. & INT'L L. 235, 267 (1993). AlthoughProf. Bassiouni's survey of world constitutions did not clearly describe hismethodology, it appears that he classified a constitution as explicitlyguaranteeing the right to a fair trial if language protecting a "fair trial" or"independent and impartial" tribunal was used, or language with only a slightvariance to that effect. Constitutions that do not guarantee fair trial rights in thisprecise language, but rather contain general due process provisions are notedseparately. See, e.g., infra note 127 and accompanying text.

25. THE CONSTITUTION OF ANTIGUA AND BARBUDA July 31, 1981, ch. II§ 15(l).

26. THE CONSTITUTION OF THE COMMONWEALTH OF THE BAHAMAS June 20,1973, ch. III § 20(l).

27. THE CONSTITUTION OF BARBADOS Nov. 22, 1966, ch. III § 18(l).28. BELIZE CONSTITUTION ACT Sept. 21, 1981, pt. II § 6(2).29. CONSTITUTION OF 2009 OF THE PLURINATIONAL STATE OF BOLIVIA

Feb. 7, 2009, pt. 1, tit. IV, art. 120(I). Note that Prof. Bassiouni's studyincorporated an earlier version of Bolivia's Constitution that also had a fair trialprovision but was placed in a different title.

30. CONSTITUTION OF BOTSWANA Mar., 1965, ch. II § 10(l).31. CONSTITUTION OF CAMEROON June 2, 1972, as amended by Law No.

96-06, Jan. 18, 1996, pmbl. Note that the Constitution of Cameroon includes theUDHR as an annex, which also guarantees the right to a fair trial in article 10.

32. Canadian Charter of Rights and Freedoms, Part I of the ConstitutionAct, 1982, beingSchedule B to the Canada Act, 1982, c 11 (U.K.), pt. I § ll(d).

33. CONSTITUTION OF THE COMMONWEALTH OF DOMINICA Nov. 3, 1978,ch. I § 8(l).

34. CONSTITUTION OF THE DOMINICAN REPUBLIC June 13, 2015, ch. II,art. 69(2). Note that Prof. Bassiouni's study incorporated an earlier version of theDominican Republic's Constitution that also had a fair trial provision but wasplaced in a different section.

35. CONSTITUTION OF THE REPUBLIC OF FIJI Sep. 6, 2013, § 15(l). Note thatProf. Bassiouni's study incorporated an earlier version of Fiji's Constitution thatalso had a fair trial provision but was placed in a different article.

36. CONSTITUTION OF THE REPUBLIC OF THE GAMBIA 1997, ch. IV § 24(l).Note that Prof Bassiouni's study incorporated an earlier version of Gambia'sConstitution that also had a fair trial provision but was placed in a differentarticle.

37. THE GRENADA CONSTITUTION ORDER 1973, § 8(l).38. CONSTITUTION OF THE CO-OPERATIVE REPUBLIC OF GUYANA Feb. 20,

1980, art. 144(l).39. MAGYARORSZAG ALAPTORVENYE [THE FUNDAMENTAL LAW OF

HUNGARY], ALAPTORVENY, Apr. 18, 2011, art. XXVIII(1). Note that Prof.

2017] The Right to an Interpreter

Liberia,43 Malta,44 Mauritius,4 5 Namibia,4 6 Nauru,47 Nigeria,4 8 PapuaNew Guinea, " St. Kitts and Nevis, 50 Sierra Leone, 51 SolomonIslands, 52 Sri Lanka, 53 Sudan, 54 Swaziland,

55 Trinidad and Tobago, 56

Tuvalu, 57 Uganda, 58 United Arab Emirates, 59 Zambia, 60 andZimbabwe.

61

Bassiouni's study incorporated an earlier version of Hungary's Constitution thatalso had a fair trial provision but was placed in a different section.

40. THE CONSTITUTION OF JAMAICA 1962, § 20(l).41. CONSTITUTION art. 25(c), art. 50(l)-(2) (2010) (Kenya). Note that Prof.

Bassiouni's study incorporated an earlier version of Kenya's Constitution that alsohad a fair trial provision but was placed in a different article. Also note that art.25(c) states that the right to a fair trial is a non-derogable right.

42. CONSTITUTION OF KIRIBATI 1980, § 10(l).43. CONSTITUTION OF THE REPUBLIC OF LIBERIA Jan. 6, 1986, art. 21.44. CONSTITUTION OF MALTA Sep. 21, 1964, art. 39(l).45. THE MAURITIUS INDEPENDENCE ORDER [CONSTITUTION] Mar. 6, 1968,

ch. II § 10(l).46. CONSTITUTION OF THE REPUBLIC OF NAMIBIA Mar. 21, 1990, ch. 3,

art. 12(1)(a).47. CONSTITUTION OF NAURU May 17, 1968, pt. II § 10(2).48. CONSTITUTION OF NIGERIA (1999) § 36(l), (4). Note that Prof.

Bassiouni's study incorporated an earlier version of Nigeria's Constitution thatalso had a fair trial provision but was placed in a different article.

49. CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEASept. 16, 1975, pt. II(3)(B) § 37(3).

50. STATUTORY INSTRUMENTS, 1983 NO. 881, SAINT CHRISTOPHER ANDNEVIS [CONSTITUTION] June 22, 1983, ch. II § 10(l) (St. Kitts and Nevis).Note that Professor Bassiouni used the spelling "St. Christopher-Nevis."

51. THE CONSTITUTION OF SIERRA LEONE Oct. 1, 1991, ch. III § 23(l).52. THE SOLOMON ISLANDS INDEPENDENCE ORDER 1978 [CONSTITUTION]

May 31, 1978, ch. II § 10(l).53. CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

1978 Aug. 31, 1978, ch. III § 13(3).54. INTERIM NATIONAL CONSTITUTION OF THE REPUBLIC OF THE SUDAN

July 6, 2005, pt. II § 34(3). Note that Prof. Bassiouni's study incorporated anearlier version of Sudan's Constitution that also had a fair trial provision but wasplaced in a different article.

55. THE CONSTITUTION OF THE KINGDOM OF SWAZILAND ACT July 26, 2005,ch. III § 21(l). Note that Prof. Bassiouni's study incorporated an earlier version ofSwaziland's Constitution that also had a fair trial provision but was placed in adifferent chapter.

56. THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO Aug. 1,1976, ch. I, pt. I § 5(2)(f)(ii).

57. THE CONSTITUTION OF TUVALU Oct. 1, 1986, § 22(2).58. CONSTITUTION OF THE REPUBLIC OF UGANDA Oct. 8, 1995, ch. IV

§ 28(l). Note that Prof. Bassiouni's study incorporated an earlier version ofUganda's Constitution that also had a fair trial provision but was placed in adifferent chapter.


Other constitutions that explicitly guarantee the right to afair trial62 that were not included in Professor Bassiouni's survey are:Albania,6 3 Andorra, 64 Angola, 65 Armenia, 66 Bangladesh,

67 Belarus, 68

Bosnia and Herzegovina (hereinafter BiH), 69 Bulgaria,70 BurkinaFaso,7 '1 Burundi,7 2 Congo,7 3 Cote d'Jvoire,7 4 Croatia,7 5 Cyprus, 7 6 Czech

59. CONSTITUTION OF THE UNITED ARAB EMIRATES 1971, pt. 3, art. 28.60. CONSTITUTION OF ZAMBIA (1996) § 18j). Note that Prof Bassiouni's

study incorporated an earlier version of Zambia's Constitution that also had a fairtrial provision but was placed in a different article. Also note that Zambia'sConstitution was amended on Jan. 5, 2016; however, the amendments do notappear to have altered Part III on fundamental rights and freedoms of theindividual.

61. CONSTITUTION OF ZIMBABWE § 69(l). Note that Prof. Bassiouni's studyincorporated an earlier version of Zimbabwe's Constitution that also had a fairtrial provision but was placed in a different chapter.

62. For the purposes of this Note, a constitution was considered toexplicitly enumerate the right to a fair trial if language guaranteeing a "fair trial"or "independent and impartial" tribunal was used, or language varying onlyslightly to that effect, in order to replicate as closely as possible Prof. Bassiouni'smethods. Constitutions that did not have an exact guarantee of a "fair trial" ortrial by an "independent and impartial" tribunal, but contained several provisionsthat together guaranteed such rights have been noted in the relevant note. Seesupra note 24; infra note 127 and accompanying text.

63. CONSTITUTION OF THE REPUBLIC OF ALBANIA Nov. 22, 1998, pt. II,ch. II, art. 31.

64. CONSTITUTION OF THE PRINCIPALITY OF ANDORRA Feb. 2, 1993, tit. II,ch. 111, art. 10.

65. CONSTITUTION OF THE REPUBLIC OF ANGOLA Jan. 21, 2010, art. 67.66. CONSTITUTION OF THE REPUBLIC OF ARMENIA July 5, 1995, ch. II,

art. 19.67. CONSTITUTION OF THE PEOPLE'S REPUBLIC OF BANGLADESH Nov. 4,

1972, pt. III, art. 35(3).68. CONSTITUTION OF THE REPUBLIC OF BELARUS OF 1994 Mar. 1, 1994,

sec. II, art. 60.69. CONSTITUTION OF BOSNIA AND HERZEGOVINA Dec. 14, 1995, art. II,

para. 3(e).70. CONSTITUTION OF THE REPUBLIC OF BULGARIA July 13, 1991, ch. II,

art. 31(4) ("The rights of a defendant shall not be restricted beyond what isnecessary for the purposes of a fair trial.").

71. CONSTITUTION OF BURKINA FASO June 2, 1991, ch. I, art. 4.72. CONSTITUTION OF BURUNDI Feb. 28, 2005, tit. II, art. 38.73. CONSTITUTION DE LA REPUBLIQUE DU CONGO Oct. 25, 2015, art. 9.74. CONSTITUTION DE LA REPUBLIQUE DE COTE DIVOIRE Oct. 30, 2016,

art. 7.75. CONSTITUTION OF THE REPUBLIC OF CROATIA Dec. 22, 1990, ch. III,

pt. II, art. 29.76. CONSTITUTION OF CYPRUS Aug. 16, 1960, pt. II, art. 30(2).


Republic, 77 Ecuador, 78 Egypt, 79 Equatorial Guinea, 80 Eritrea, 81Finland, 82 Germany, 83 Ghana, 84 Guinea, 85 Iceland, 86 Iraq,

87 Japan, 88Kosovo, 89 Latvia, 90 Lesotho, 91 Libya, 92 Lithuania, 93 Malawi, 9'Maldives, 95 Marshall Islands, 96 Mongolia, 97 Montenegro, 98 Nepal, 99New Zealand, 100 Norway, 101 Pakistan, 102 Palau, 103 Paraguay, 104

77. Usneseni c. 2/1993 Sb. ch.V, art. 36 (Czech.).78. CONSTITUCION DE LA REPUBLICA DEL ECUADOR tit. I, ch. VIII, art. 7(k).79. DUSTUR JUMHURIAT MISR AL-ARABIAT [CONSTITUTION] ch. IV, art. 96

(Egypt).80. CONSTITUCION DE GUINEA ECUATORIAL. pt. I, art. 13j) (Eq. Guinea).81. QwAM ERITREA [CONSTITUTION] ch. III, art. 17.82. SUOMEN PERUSTUSLAKI [CONSTITUTION] ch. II, sec. 21 (Fin.). Note that

section 21 states that guarantees of a fair trial will be laid out by an Act.83. GRUNDGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND

[GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBL. 1, § IX, art. 103 (Ger.).Note that article 103 does not guarantee a fair trial in its content, but is entitled"fair trial".

84. THE CONSTITUTION OF THE REPUBLIC OF GHANA ch. V, art. 19(l).85. LA CONSTITUTION DE LA RIPUBLIQUE DE LA GUINEE tit. II, art. 9

(Guinea).86. STJORNARSKRA LYDVELDISINS ISLANDS [CONSTITUTION] § VII, art. 70

(lIce.).87. DUSTUR AL-IRAQ [CONSTITUTION], sec. II, ch. I, art. 19(5) (Iraq).88. NIHONKOKU KENPO [KENPO] [CONSTITUTION], ch. III, art. 37 (Japan).89. CONSTITUTION OF THE REPUBLIC OF KOSOVO June 15, 2008, ch. II.,

art. 31.90. LATVIJAS REPUBLIKAS SATVERSME [LV] [CONSTITUTION], ch. VIII,

art. 92 (Latvia).91. CONSTITUTION OF LESOTHO, ch. II, arts. 4(1)(h), 12.92. CONSTITUTIONAL DECLARATION, ch. IV, art. 31 (Libya). Note that Prof.

Bassiouni's study incorporated an earlier version of the Libyan Constitution thatonly provided for procedural safeguards for the defense and was classified in hisstudy as such.

93. CONSTITUTION OF THE REPUBLIC OF LITHUANIA Oct. 25, 1993, ch. II,art. 31.

94. REPUBLIC OF MALAWI (CONSTITUTION) ACT May 18, 1994, ch. IV,art. 42(2)(f).

95. CONSTITUTION OF THE REPUBLIC OF MALDIVES, ch. II, art. 42(a).96. CONSTITUTION OF THE REPUBLIC OF THE MARSHALL ISLANDS, art. II,

sec. 4.97. CONSTITUTION OF MONGOLIA Jan. 13, 1992, ch. II, art. 16(14).98. CONSTITUTION OF THE REPUBLIC OF MONTENEGRO Oct. 19, 2007, pt. II,

ch. II., art. 32.99. CONSTITUTION OF NEPAL Sept. 20, 1015, pt. III, art. 20(9). Note that the

Constitution cited here was adopted in September 2015 and the author is relyingon an unofficial translation by International IDEA.

100. NEW ZEALAND BILL OF RIGHTS ACT 1990 Aug. 28, 1990, pt. II,art. 25(a).

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Poland," 5 Romania, 1 0 6 Rwanda, 1 0 7 Saint Lucia,0 8 Saint Vincent andthe Grenadines, 109 Samoa, 110 Serbia, "' Seychelles, 112 Slovenia, 113Somalia, 114 South Africa,115 South Sudan, 116 Switzerland, 117 Syria,

118

Tanzania, 11 9 Togo, 120 Tonga, 121 Tunisia, 122 Turkey, 12 3 and Vanuatu. 12 4

101. CONSTITUTION OF THE KINGDOM OF NORWAY May 17, 1814, sec. D,art. 95.

102. PAKISTAN CONST. pt. II, ch. I, art. 10A.103. CONSTITUTION OF THE REPUBLIC OF PALAU July 9, 1980, art. IV,

sec. 7.104. CONSTITUTION OF PARAGUAY June 20, 1992, pt. I, tit. II, ch. II, art. 16.105. CONSTITUTION OF THE REPUBLIC OF POLAND Apr. 2, 1997, ch. II,

art. 45(l).106. CONSTITUTION OF ROMANIA Nov. 21, 1991, tit. II, ch. I, art. 21. Note

that Prof. Bassiouni's study incorporated an earlier version of Romania'sConstitution that did not have a fair trial provision.

107. CONSTITUTION OF THE REPUBLIC OF RWANDA May 26, 2006, tit. II,ch. I, art. 19.

108. CONSTITUTION OF SAINT LUCIA Dec. 31, 2006, ch. I, art. 8(l).109. THE SAINT VINCENT AND THE GRENADINES CONSTITUTION ACT 2009,

ch. I, art. 8(l).110. THE CONSTITUTION OF THE INDEPENDENT STATE OF WESTERN SAMOA

1960, pt. II, art. 9.111. THE CONSTITUTION OF THE REPUBLIC OF SERBIA 2006, ch. II, pt. II,

art. 32.112. THE CONSTITUTION OF THE REPUBLIC OF SEYCHELLES June 21, 1993,

ch. III, pt. I, art. 19(l).113. THE CONSTITUTION OF REPUBLIC OF SLOVENIA Dec. 23, 1991, ch. II,

art. 23. Note that Article 23 guarantees the right to "have any decision regardinghis rights, duties, and any charges brought against him made without unduedelay by an independent, impartial court constituted by law" and that Articles 24through 31 guarantee subsidiary fair trial rights.

114. THE FEDERAL REPUBLIC OF SOMALIA PROVISIONAL CONSTITUTIONAug. 1, 2012, ch. II, tit. II, art. 34(2).

115. S. AFR. CONST., 1996, ch. II, arts. 34, 35(3).116. THE TRANSITIONAL CONSTITUTION OF THE REPUBLIC OF SOUTH

SUDAN, July 2011, pt. II, art. 19.117. BUNDESVERFASSUNG [BV] [CONSTITUTION] Apr. 18, 1999, SR 101,

arts. 29, 30 (Switz.).118. CONSTITUTION OF THE SYRIAN ARAB REPUBLIC Mar. 13, 1973, tit. II,

ch. II, art. 51(2).119. THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA Apr. 25,

1977, ch. I, pt. III, art. 13(6)(a).120. THE CONSTITUTION OF THE REPUBLIC OF TOGO May 5, 1993, tit. II,

sub. tit. I, art. 19.121. THE CONSTITUTION OF TONGA Nov. 4, 1875, pt. I, art. 14.

Note that Article 14 does not guarantee a fair trial in its content, but is entitled"trial to be fair".

122. THE CONSTITUTION OF TUNISIA Jan. 26, 2014. Note that Prof.Bassiouni's study incorporated an earlier version of the Tunisian Constitution


The right to a fair trial was also enumerated in the 2003 DraftConstitution of the State of Palestine. 125 In addition to protectionsthrough the common law, the right to a fair trial is explicitlyprotected in the United Kingdom through the Human Rights Act of1998,126 which incorporated the ECHR into British law.

In addition to the almost a hundred countries explicitlyprotecting the right to a fair trial, other national constitutions containgeneral due process language that has been interpreted to guaranteefair trial rights, most notably the U.S. Constitution, whichguarantees fair trial rights in the Fifth, Sixth, and FourteenthAmendments. 127 The constitutions of Afghanistan, 128 Algeria, 129Bhutan,13 ° Cape Verde,' Colombia, 132 Mexico, 133 the Federated Statesof Micronesia, 134 the Philippines, 135 Uruguay, 136 and Venezuela 137

that only provided for procedural safeguards for the defense and was classified inhis study as such.

123. CONSTITUTION OF THE REPUBLIC OF TURKEY Nov. 7, 1982, pt. II, ch. I,sec. XIII § A, art. 36.

124. CONSTITUTION OF THE REPUBLIC OF VANUATU July 30, 1980, ch. II,pt. 2, art. 5(2)(a).

125. CONSTITUTION OF THE STATE OF PALESTINE Mar. 25, 2003, ch. II,art. 29.

126. Human Rights Act, 1998, c. 42, § 1(3), sch. 1, pt. 1, art. 6 (Eng.).127. U.S. CONST. amends. V, VI, XIV; see also Bassiouni, supra note 24, at

267 (noting the fair trial protections of the Fifth, Sixth, and Fourteenthamendments); MASON, supra note 7, at 1 (describing fair trial rights asguaranteed by the U.S. Constitution).

128. CONSTITUTION OF THE ISLAMIC REPUBLIC OF AFGHANISTAN Jan. 26,2004, ch. II, art. 27 (guaranteeing due process rights).

129. CONSTITUTION OF THE PEOPLE'S DEMOCRATIC REPUBLIC OF ALGERIA1989, as amended, 1996, pt. I, ch. IV, art. 45 (requiring that an accused has "allthe guarantees required by the law").

130. CONSTITUTION OF THE KINGDOM OF BHUTAN 2008, art. 7j)(guaranteeing due process rights).

131. CONSTITUTION OF THE REPUBLIC OF CAPE VERDE 1992, as amended,1999, ch. II, pt. II, tit. I art. 20 (stating that everyone should be "guaranteed bylaw the right to defense, to be represented, to have access to information, and toconsultation.").

132. CONSTITUCION POLTICA DE COLOMBIA [C.P.] tit. II, ch. I, art. 29(guaranteeing due process rights).

133. CONSTITUCION POLTICA DE LOS ESTADOS UNIDOS MEXICANOS [CP],tit. I, ch. I, art. 14, Diario Oficial de la Federaci6n [DOF] 05-02-1917, utimasreformas DOF 10-02-2014 (Mex.).

134. CONSTITUTION OF THE FEDERATED STATES OF MICRONESIA 1978,art. IV, §§ 3, 6.

135. CONST. (1987), art. III § 1 (Phil.).136. CONSTITUTION OF THE ORIENTAL REPUBLIC OF URUGUAY 1967, as

amended2004, sec. II, ch. I, art. 12 (guaranteeing due process rights).

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similarly contain general due process language. 138 The Australianconstitution does not have an enumerated right to a fair trial, butcourts are able to protect fair trial rights through the common law.

1 39

The constitutions of the Democratic Republic of the Congo(hereinafter D.R.C.), Estonia, Ethiopia, Nicaragua, and Oman do notenumerate the right to a fair trial, but rather explicitly guaranteeseveral subsidiary fair trial rights, such as the right to a speedy andpublic trial. 140 The Constitution of the Slovak Republic does notguarantee the right to a fair trial, but instead states that "[e]veryonemay claim by the established legal procedure his right to anindependent and impartial court hearing." 141 Several moreconstitutions guarantee simply the right to all the proceduralsafeguards necessary for the defense 142 : Benin, 143 Brazil, 144 CentralAfrican Republic, 145 Chad, 146 El Salvador, 147 Gabon, 148 Kuwait, 149Madagascar, 150 Moldova, 151 Niger,152 Portugal, 153 and Qatar.

154

137. CONSTITUTION OF THE BOLIVARIAN REPUBLIC OF VENEZUELA 1999, asamended2009, tit. III, ch. II, art. 49.

138. The 2008 Constitution of Myanmar also contains due process languagein Article 381; however, due process guarantees are explicitly allowed to bederogated in times of foreign invasion, insurrection, and emergency in the samearticle. See CONSTITUTION OF THE REPUBLIC OF THE UNION OF MYANMAR May 29,2008, ch. VIII, art. 381.

139. Simon Bronitt & Bernadette McSherry, The Use and Abuse ofCounseling Records in Sexual Assault Trials: Reconstructing the 'Rape Shield'78 CRIM. L.F. 259, 272-273 (1997).

140. CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO 2005,tit. II, ch. I, arts. 18-21; CONSTITUTION OF THE REPUBLIC OF ESTONIA June 28,1992, ch. II, arts. 21-24; CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLICOF ETHIOPIA Dec. 8, 1994, ch. III, pt. I, art. 20; CONSTITUCION POLTICA DE LAREPUBLICA DE NICARAGUA [CN.] tit. IV, ch. I, art. 34, LA GACETA, DIARO OFICIAL[L.G.] 9 January 1987; CONSTITUTION OF OMAN 1996 (rev. 2011), ch. III, art. 22-23.

141. CONSTITUTION OF THE SLOVAK REPUBLIC Sept. 1, 1992, ch. II, pt. VI,art. 46(l).

142. Bassiouni, supra note 24, at 267-68.143. CONSTITUTION DE LA REPUBLIQUE DU BENIN Dec. 2, 1990, art. 17.

Note that Prof Bassiouni's study did not classify Benin's Constitution as such.144. CONSTITUIQAO FEDERAL [C.F.] [CONSTITUTION] art. 5 (Braz.). Note

that Prof. Bassiouni's study incorporated an earlier version of Brazil'sConstitution that also had a fair trial provision but was placed in a differentsection.

145. CONSTITUTION DE LA REPUBLIQUE CENTRAFRICAINE Mar. 27, 2016,art. 3 (Cent. Afr. Rep.). Note that the document cited here is the Constitutionadopted after constitutional referendum in December 2015.

146. CONSTITUTION DE LA REPUBLIQUE DU TCHAD Mar. 31, 1996, art. 24(Chad).

[48.3


1. Opinio Juris

As evidenced by national constitutions, international treatiesand U.N. statutes, fair trial rights have nearly universal protection,satisfying the state practice requirements set out by the I.C.J.Nonetheless, in order to be considered customary international law, anorm must be evidenced not only by state practice, but also opiniojuri;, that is, a state's subjective belief that it is bound by theobligation.155 However, it is less obvious whether states believe fairtrial rights to be a norm under international law, as opposed to aprotected right under their own national constitutions.

Opinio juris is what distinguishes customary internationallaw from "mere habit or usage,' 156 and thus cannot be neglected orassumed. Yet, it is difficult to ascertain when a norm has reached

147. CONSTITUCION DE LA REPUBLICA DE EL SALVADOR [CONSTITUTION]Dec. 15, 1983, arts. 11-12. Note that Article 11 guarantees the right not to bedeprived of liberty without previously being heard and defeated in a trial, whileArticle 12 protects the accused's right to "all the guarantees necessary for hisdefense."

148. CONSTITUTION OF THE GABONESE REPUBLIC Mar. 26, 1991, prelim.tit., art. 1(4). Note that Prof. Bassiouni's study incorporated an earlier version ofGabon's Constitution that had a provision guaranteeing all the proceduresnecessary to safeguard the right to defense, but was placed in a different title.

149. CONSTITUTION OF KUwAIT Nov. 11, 1962, pt. III, art. 34.150. CONSTITUTION OF MADAGASCAR Nov. 14, 2010, tit. II, sub-tit. I,

art. 13.151. CONSTITUTION OF THE REPUBLIC OF MOLDOVA Jul. 24, 1994, tit. II,

ch. I, art. 21. Note that Article 21 guarantees the right to be presumed innocent,the right to a public trial, and the right to "all guarantees necessaryfor.., defense".

152. CONSTITUTION OF 8 NOVEMBER 1960 tit. II, art. 20 (Niger). Note thatProf. Bassiouni's study did not classify Niger's Constitution as such; however, itwas considering an earlier version of the Constitution.

153. CONSTITUTION OF THE PORTUGUESE REPUBLIC 1976, tit. II, ch. I,art. 32(l).

154. PERMANENT CONSTITUTION OF THE STATE OF QATAR 2003, pt. III,art. 39. Note that Prof. Bassiouni's study had classified the Constitution of Qataras explicitly guaranteeing the right to a fair trial, as an earlier version of theConstitution had included such as provision in Article 11. However, the 2004Constitution no longer explicitly guarantees the right to a fair trial and onlyguarantees that the necessary safeguards for self-defense will be secured.

155. See International Law Commission, Second report on identification ofcustomary international law by Michael Wood, Special Rapporteur, 69,U.N. Doe. A/CN.4672 (May 22, 2014).

156. Id.

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customary status through opinio jurs,15 and particularly difficult toascertain the subjective views of a state with regard to a norm likethe right to a fair trial, as it is explicitly and extensively guaranteedby numerous treaties and declarations. For instance, China isparticularly notorious for failing to comply with fair trial rights.

158

Nevertheless, changes were made to the Chinese Criminal ProcedureLaw and Criminal Law in the 1990s to enhance fair trial protections(at least on paper).159 Consequently, even from a Chinese perspective,it appears that the right to a fair trial entails some sense of legal

157. See ANTHONY A. D'AMATO, THE CONCEPT OF CUSTOM ININTERNATIONAL LAW 82-87 (1971); J. Patrick Kelly, The Twilight of CustomaryInternational Law, 40 VA. J. INT'L L. 449, 452-53 (1999); International LawAssociation, Final Report of the Committee on the Formation of GeneralCustomary International Law, 69 INT'L L. ASS'N REP. CONF. 713, 719-21 (2000);Frederic L. Kirgis, Jr., Custom on a Sliding Scale, 81 AM. J. INT'L L. 146, 149(1987); Michael P. Scharf, Acceleration Formation of Customary InternationalLaw, 20 ILSA J. INT'L COMP. L. 305, 328 (2013); Andrew T. Guzman, SavingCustomary International Law, 27 MICH. J. INT'L. L. 115, 124-25 (2005);International Law Commission, supra note 155, 66; see also Special Tribunal forLebanon, Interlocutory Decision on the Applicable Law, STL-11-01/I, 87 (STLAppeal Chambers 2011) (finding that customary international law had beenproven "beyond any shadow of doubt" but declining to determine that that was theapplicable burden of proof).

158. See, e.g., Human Rights Commission, Opinions Adopted by theWorking Group on Arbitrary Detention, Opinion No. 02/2003,E/CN.4/2004/3/Add.1, 19 (Nov. 26, 2003); Human Rights Commission, OpinionsAdopted by the Working Group on Arbitrary Detention, Opinion No. 10/2003,E/CN.412004/3/Add.1, 1 27 (Nov. 26, 2003); Human Rights Commission, OpinionsAdopted by the Working Group on Arbitrary Detention, Opinion No. 23/2003,E/CN.4/2005/6/Add.1, 15 (Nov. 19, 2004); Human Rights Commission, OpinionsAdopted by the Working Group on Arbitrary Detention, Opinion No. 20/2005,E/CN/4/2006/7/Add.1, 23 (Oct. 19, 2005); Human Rights Council, OpinionsAdopted by the Working Group on Arbitrary Detention at its Sixtieth Session,Opinion No. 15/2011, A/HRC/WGAD/2011/15, 28 (Feb. 27, 2012); Human RightsCouncil, Opinions Adopted by the Working Group on Arbitrary Detention at itsSixty-First Session, Opinion No. 29/2011, A/HRC/WGAD/2011/29, 31 (Feb. 28,2012); Human Rights Council, Opinions Adopted by the Working Group onArbitrary Detention at its Sixty-Fourth Session, Opinion No. 36/2012,A/HRC/WGAD/2012/36, 22 (Nov. 23, 2012); Human Rights Council, OpinionsAdopted by the Working Group on Arbitrary Detention at its Sixty-Ninth Session,Opinion No. 02/2014, A/HRC/WGAD/2014/2, 34 (July 21, 2014); Human RightsCouncil, Opinions Adopted by the Working Group on Arbitrary Detention at itsSixty-Ninth Session, Opinion No. 03/2014, A/HRC/WGAD/2014/3, 28 (July 21,2014).

159. See Daphne Huang, The Right to a Fair Trial in China, 7 PAC. RIM. L.& POL'Y J. 171, 171-72 (1998).

[48.3


obligation under international law and before the internationalcommunity. 160

The overwhelming prevalence of fair trial rights in nationalconstitutions and treaties and the frequency of internationalcondemnations of fair trial violations suggests that the right to a fairtrial is subjectively valued by states. 161 Indeed, the fact that theUnited States in particular internationally condemns other states forfair trial violations is a good indicator that it views the right as acustomary international norm, as the two primary sources ofinternational fair trial obligations upon the United States, aside fromcustomary international law, are the UDHR and the ICCPR.

However, the debate over the customary status of thesedocuments is likely more disputed than that of fair trial rights.

162

While some commentators argue that the norms contained in theUDHR and ICCPR have "risen to the level of customary internationallaw"163 and lower courts in the United States have cited the UDHR as

160. See id. at 173. But see Ping Yu, Glittery Promise vs. Dismal Reality:The Role of a Criminal Lawyer in the Peoples' Republic of China after the 1996Revision of the Criminal Procedure Law, 35 VAND. J. TRANSNAT'L L. 827, 862(2002) (arguing that China is obligated to uphold the right to a fair trial, citingthe UDHR as binding authority for customary international law); MarshaWellknown Yee, Note, Hong Kongs' Legal Obligation to Require Fair Trial forRendition, 102 COLUM. L. REV. 1373, 1390 (2002) (arguing that Hong Kong has anobligation to provide fair trials for rendition and extradition based on the ICCPR,customary international law, and other international instruments).

161. See also ANTONIO CASSESE ET AL., CASSESE'S INTERNATIONALCRIMINAL LAW 357 (3rd ed., rev. 2013) (stating that the "principle of fairness" islikely jus cogens due to "the insistence of all states on the importance of fair butexpeditious trials").

162. See, e.g., Tai-Heng Cheng, The Universal Declaration of HumanRights at Sixty: Is It Still Right for the United States 41 CORNELL INT'L L.J. 251,278-80 (2008) (noting that since Sosa eighteen lower courts have interpreted Sosato hold that the UDHR has no authoritative value, forty courts have avoideddeciding the status of the UIDHR, and twelve have relied on the UDHR asauthoritative international law).

163. See Harold Hongju Koh, Agora: Military Commissions: the CaseAgainst Military Commissions, 96 AM. J. INT'L L. 337, 341 n.24 (2002); HurstHannum, The Status and Future of the Customary International Law of HumanRights: The Status of the Universal Declaration ofHuman Rights in National andInternational Law, 25 GA. J. INT'L & COMP. L. 287, 345-46 (1995); Elizabeth F.Defeis, Human Rights, the European Union, and the Treaty Route: fromMaastricht to Lisbon, 35 FORDHAM INT'L L.J. 1207, 1225 n.93 (2012); Jordan J.Paust, Juaicial Power to Determine the Status and Rights of Persons DetainedWithout Trial, 44 HARV. INT'L L.J. 503, 511 n.27 (2003); see also MYRES S.McDOUGAL, HAROLD LASSWELL & LUNG-CHU CHEN, HUMAN RIGHTS AND WORLDPUBLIC ORDER 272 (1980) (stating that the UDHR is an "authoritative legal

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a source of customary international law binding upon the UnitedStates,1 6 4 the present status of these documents is unclear.

In Sosa v. Alvarez-Maehain, the U.S. Supreme Courtconsidered whether the UDHR and ICCPR could form the basis forcustomary international law causes of action for the case arisingunder the Alien Tort Statute (ATS). 165 The Court ultimatelyconcluded that the UDHR "does not of its own force imposeobligations as a matter of international law. '166 In contrast, the Courtconcluded that the "[ICCPR] does bind the United States as a matterof international law" but that the non-self-executing treaty does not"itself create obligations enforceable in the federal courts." 167Consequently, the Court arguably acknowledged the ICCPR as asource of customary international law, potentially giving rise to fairtrial obligations under international norms, while dismissing theUDHR as a source of such obligations.

Sosa, however, is also important for its discussion of theconditions needed for a norm of customary international law to berecognized by U.S. courts. In declining to recognize a norm againstthe kind of arbitrary detention suffered by Alvarez, the Courtintroduced two requirements: general acceptance and specificity.

161

The Court stated that any claim based on a norm of customary

requirement"); Mark S. Ellis, A Global Legal Odyssey: A Training Manual for theLegal Profession, 43 S. TEX. L. REV. 355, 356 (2002) (arguing that the UDHR setsout principles recognized as part of customary international law by the I.C.J. inthe Tehran Hostages Case); Joannis Kalpouzos & Itamar Mann, Banal Crimesagainst Humanity: The Case of Asylum Seekers in Greece, 16 MELBOURNE J.INT'L L. 1, 16 n.83 (2015) (citing the WGAD decision in Question of the HumanRights of All Persons Subjected to Any Form ofDetention or Imprisonment for thestatement that the UDHR established international norms relating to the right toa fair trial); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THEUNITED STATES § 701 cmt. d (1987) (stating that "it is increasingly recognizedthat states parties to the [U.N.] Charter are legally obligated to respect some ofthe rights recognized in the [UDHR]").

164. See Filartiga v. Pena-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980).165. Sosa v. Alvarez-Machain, 542 U.S. 692, 734-37 (2004); see also Curtis

A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary InternationalLaw, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 899 (2007)(describing the holding of Sosa with regard to the UDHR and ICCPR).

166. Sosa, 542 U.S. at 734; see also Bradley et al., supra note 165, at 899(describing the holding of Sosa with regard to the UDHR and ICCPR).

167. Sosa, 542 U.S. at 735 (emphasis added); see also Bradley et al., supranote 165, at 899 (describing the holding of Sosa with regard to the UDHR andICCPR).

168. Sosa, 542 U.S. at 725.

[48.3


international law must be "accepted by the civilized world anddefined with a specificity comparable to the features of the 18th-century paradigms we have recognized." 169 The Court gave theexample of piracy as a sufficiently specific norm, and further clarifiedthat "the determination whether a norm is sufficiently definite tosupport a cause of action should ... involve an element of judgmentabout the practical consequences of making that cause available tolitigants in the federal courts." 170 While the decision still leaves anumber of ambiguities as to the exact levels of general acceptanceand specificity that will be sufficient for norm recognition, it indicatesthat, in the future, customary international norms must meet asubstantially heightened standard to be recognized in U.S. courts.

171

Irrespective of the domestic status of ICCPR- or UDHR-basedfair trial rights,1 2 the United States regularly accuses other states ofviolating fair trial norms.7 3 Consequently, U.S. actions in this regard

169. Id.170. Id. at 731-32 (2004).171. Bradley et al., supra note 165, at 896-97. But see William S. Dodge,

After Sosa: The Future of Customary International Law in the United States, 17WILLAMETTE J. INT'L L. & DIS. RES. 21, 26 (2009) (arguing that the standard setout in Sosa for general acceptance and specificity was the same that lower courtshad already been applying).

172. See, e.g., People v. Ramirez, 139 P.3d 64, 118-19 (Cal. 2006) (plaintiffciting the UDHE and ICCPR as evidencing a customary international law right toa fair trial but court finding that the defendant was not denied a fair trial even byinternational standards).

173. See U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTSPRACTICES FOR 2016: AZERBAIJAN 11-14 (2016), https://www.state.gov/documents/organization/265608.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ONHUMAN RIGHTS PRACTICES FOR 2016: CHINA 14-18, 103 (2016),https://www.state.gov/documents/organization/265540.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: IRAN 11-12 (2016),https://www.state.gov/documents/organization/265708.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: KAZAKHSTAN 8-10(2016), https://www.state.gov/documents/organization/265750.pdf; U.S. DEPT OFSTATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA 8-9 (2016), https://www.state.gov/documents/organization/265556.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ONHUMAN RIGHTS PRACTICES FOR 2016: KYRGYZ REPUBLIC 7-9 (2016),https://www.state.gov/documents/organization/265752.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: LAOS 5-7 (2016),https://www.state.gov/documents/organization/265560.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: LIBYA 9-10 (2016),https://www.state.gov/documents/organization/265722.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: MALDIVES 6-8(2016), https://www.state.gov/documents/organization/265754.pdf; U.S. DEPT OF

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indicate that it likely views the right as a norm of customaryinternational law, and thus has sufficient opinio uris. Additionally,states that are accused of fair trial violations generally respond byarguing that no such violation occurred or that other states similarlyhave violated fair trial rights, rather than by contesting the value or

STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: MOLDOVA11-13 (2016), https://www.state.gov/documents/organization/265662.pdf; U.S.DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:MONGOLIA 7 (2016), https://www.state.gov/documents/organization/265568.pdf;U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:NIGERIA 12-14 (2016), https://www.state.gov/documents/organization/265500.pdf;U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:PAKISTAN 15-18 (2016), ttps://www.state.gov/documents/organization/265758.pdf;U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:RUSSIA 14-16 (2016), https://www.state.gov/documents/organization/265678.pdf;U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:SAUDI ARABIA 13-17 (2016), https://www.state.gov/documents/organization/265730.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTSPRACTICES FOR 2016: SIERRA LEONE 8-10 (2016), https://www.state.gov/documents/organization/265510.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTSON HUMAN RIGHTS PRACTICES FOR 2016: SOUTH AFRICA 12-13 (2016),https://www.state.gov/documents/organization/265514.pdf (noting that SouthAfrica has been particularly criticized by the U.S. State Department for failing toprovide access to qualified interpreters and generally having low interpretationstandards that compromised the "veracity of the exchange between the defendantand the court"); U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTSPRACTICES FOR 2016: SOUTH SUDAN 9-11 (2016), https://www.state.gov/documents/organization/265516.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ONHUMAN RIGHTS PRACTICES FOR 2016: SUDAN 16-18 (2016), https://www.state.gov/documents/organization/265518.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ONHUMAN RIGHTS PRACTICES FOR 2016: SYRIA 16-18 (2016), https://www.state.gov/documents/organization/265732.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTSON HUMAN RIGHTS PRACTICES FOR 2016: TAJIKISTAN 6-8 (2016),https://www.state.gov/documents/organization/265762.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: TURKEY 14-17(2016), https://www.state.gov/documents/organization/265694.pdf; U.S. DEP'T OFSTATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016:TURKMENISTAN 7-8 (2016), https://www.state.gov/documents/organization/265764.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR2016: UNITED ARAB EMIRATES 7-9 (2016), https://www.state.gov/documents/organization/265736.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMANRIGHTS PRACTICES FOR 2016: UZBEKISTAN 11-12 (2016), https://www.state.gov/documents/organization/265766.pdf; U.S. DEP'T OF STATE, COUNTRY REPORTSON HUMAN RIGHTS PRACTICES FOR 2016: VIETNAM 14-16 (2016),https://www.state.gov/documents/organization/265598.pdf; U.S. DEP'T OF STATE,COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: ZIMBABWE 10-12(2016), https://www.state.gov/documents/organization/265530.pdf.


protection of fair trial rights. 174 This practice suggests that evenviolators do not wish to be perceived by the international communityas such and that they feel compelled to protect the right as aninternational norm. In that sense, the right to a fair trial is treated bystates similarly to well-established norms, such as the prohibitionagainst torture, where states engage in linguistic and legalgymnastics in order to avoid being chastised by the internationalcommunity for violations. 175

Moreover, over time the right to a fair trial has become amore common protected right in national constitutions. While olderconstitutions, particular the U.S. Constitution, often offer general dueprocess protections, many of the constitutions drafted after colonialoccupation or the end of the Cold War explicitly enumerate the rightto a fair trial as a fundamental right protected under the constitution,along with rights such as those to life and liberty.1 7 6 Consequently,states, and especially new states, appear to place increasingimportance upon the right to a fair trial over the last few decades,suggesting that while the right may not have been a customaryinternational law norm prior to the Second World War, it is today.

2. The Right to a Fair Trial as Jus Cogens

Some commentators have gone even further and haveconcluded that the right to a fair trial it not merely a right undercustomary international law, but has achieved the status of jus

174. See, e.g., State Council Information Office of the People's Republic ofChina, Human Rights Record of the United States in 2014 (2014),http://news.xinhuanet.com/english/China/2015-06/26/c 134357934.htm (criticizingthe lack of fair investigations into police abuses in the United States); GlobalTimes Editorial Board, Gu's Trial will test Principle of Rule of Law, GLOBALTIMES (July 27, 2012, 5:14 PM), http://www.globaltimes.en/content/723603.shtml(arguing that China should respect the rule of law and allow a fair trial in high-profile civil and criminal proceedings in order to respond to internationalcriticism).

175. However, although the international community in this sense treatsthe right to a fair trial similarly to the prohibition of torture, the right to a fairtrial is likely not a peremptory norm of customary international law, or juscogens, and thus is quite distinguishable from the prohibition of torture. See infraPart I.C.

176. For instance, the more recently adopted constitutions of Albania, BiH,Croatia, Czech Republic, Eritrea, Latvia, Lithuania, Montenegro, Serbia, SouthAfrica, and South Sudan enumerated the right to a fair trial as a fundamentalright with subsidiary rights, similarly to the structure of fair trial rights in theICCPR and ECHR. See supra Part I.A.

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cogens, a peremptory norm of international law.7 Fair trial rightswould thus join the rank of norms such as the prohibition againstgenocide and torture as norms from which no derogation is everpermitted. However, while the right to a fair trial is certainly animportant right in international law, the right faces an internallimitation that may prevent it from achieving the status ofjus cogens.The right to a fair trial is generally considered to be a derogable rightin cases of emergency, for instance codified in Article 4 § 2 of theICCPR.178 As a consequence, some commentators argue that the rightto a fair trial cannot achieve the status of jus cogens, as it is notabsolute.1 7 9 Nevertheless, while it is contestable whether the right to

177. See Robinson, Right to a Fair Trial, supra note 5, at 7 (arguing thatthe right to a fair trial is a peremptory norm of general international law); PatrickL. Robinson, Fair but Expeditious Trials, in THE DYNAMICS OF INTERNATIONALCRIMINAL JUSTICE 169, 171 (Hirad Abtahi & Gideon Boas eds., 2006) (arguingthat the fair trial standards enshrined in Article 14 of the International Covenanton Civil and Political Rights 1966, 999 UNTS 171, are of a jus cogens nature);GIDEON BOAS, THE MILOSEVIC TRIAL: LESSONS FOR THE CONDUCT OF COMPLEXINTERNATIONAL CRIMINAL PROCEEDINGS 16-17 (2007) [hereinafter BOAS,MILOSEVIO]; Michail Wladimiroff, Rights of Suspects and Accused, inSUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW 419,430 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000); ALEXANDERORAKHELASHVILI, PEREMPTORY NORMS IN INTERNATIONAL LAW 60 (2006); JohnH. Dingfelder Stone, Assessing the Existence of the Right to Translation underthe International Covenant on Civil and Political Rights, 16 MAX PLANCK Y.B.U.N. L. 159, 161 (2012); see also GEERT-JAN ALEXANDER KNOOPS, THEORY ANDPRACTICE OF INTERNATIONALIZED CRIMINAL PROCEEDINGS 24-25 (2005)(describing procedural due process norms as jus cogens); CASSESE ET AL., supranote 161, at 357 (stating that the "principle of fairness" is a undoubted norm ofcustomary international law and is likely jus cogens due to "the insistence of allstates on the importance of fair but expeditious trials"); Sarah H. Cleveland,Norm Internationalization and US. Economic Sanctions, 26 YALE J. INT'L L. 1, 29(2001) (noting that the right to a fair trial may be approaching the status of acustomary obligation erga omnes); Evan J. Criddle & Evan Fox-Decent, AFiduciary Theory ofJus Cogens, 34 YALE J. INT'L L. 331, 371 (2009) (noting that afew scholars have argued that due process should be recognized as a peremptorynorm).

178. ICCPR, supra note 12, art. 14. But see Article 19 v. Eritrea, Case No.275/03, 98 (African Comm'n H.P.R. May 30, 2007) (noting that the right to a fairtrial cannot be derogated from for any reason and in any circumstance); see alsoNsongurua J. Udombana, The 60th Anniversary of the Declaration of HumanRights: A Reality Check: Mission Accomplished? An Impact Assessment of theUDHI in Africa, 30 HAMLINE J. PUB. L. & POL'Y 335, 376 (2008) (describing theAfrican Commission's holding in the Eritrea Case).

179. See Michael Byers, Book Review, 101 A.J.I.L. 913, 916 (2007)(reviewing ORAKHELASHVILI, supra note 177) (rejecting the notion that derogablerights such as due process and the right to a fair trial can be peremptory norms);


a fair trial has or even can become jus cogens, as evidenced by statepractice and opiniojuris, the right to a fair trial, as a general right, isa protected right under customary international law.

3. Scope and Content of the Right to a Fair Trial

The right to a fair trial can thus be considered a norm ofcustomary international law. Yet, that conclusion may have littlepractical meaning for defendants in national courts who havesuffered a particular violation of their fair trial rights. While the rightis protected almost universally outside of customary internationallaw, the actual scope and content of the right is difficult toascertain.180 Indeed, in considering a Vienna Convention on ConsularRelations (hereinafter VCCR) claim in the 2006 Vienna ConventionDecision, the German Federal Constitutional Court noted that theright to a fair trial "does not contain explicit rules and prohibitions indetail" and consequently these rules are to be clarified by the nationalcourts.

1 8 1

National constitutions that explicitly guarantee the right to afair trial vary significantly in terms of the content of the right.Moreover, even amongst the international human rights treaties,there are discrepancies in the criteria required for a fair trial.12 Asjust one example, considerable debate has emerged afterinternational courts such as the ICTY have identified certain rights

see also Oona A. Hathaway, Do Human Rights Treaties Make a Difference,111 YALE L.J. 1935, 1965-66 (2002) (distinguishing the right to a fair trial fromthe non-derogable jus cogens prohibiting torture and genocide); Mike Madden,Comparative Cherry-Picking in a Military Justice Context: The Misplaced Questto Give Universally Expansive Meaning to International Human Rights, 46 GEO.WASH. INT'L L. REV. 713, 730 (2014) (describing the disagreement betweencommentators about the status of fair trial rights in customary international law).But see ORAKHELASHVILI, supra note 177, at 60 (stating that certain derogablerights, such as the right to a fair trial, can be peremptory).

180. See Madden, supra note 179, at 731 (noting the difficulty indetermining the substance of a customary international right to a fair trial).

181. Bundesverfassungsgericht [BVerfD] [Federal Constitutional Court]Sep. 19, 2006, 2 BvR 2115/01, 2132/01, 348/03 51 (Ger.); see Riley J. Graebner,Note, Dialogue and Divergence: The Vienna Convention on Consular Relations inGerman, American, and International Courts, 42 GEO. J. INT'L L. 605, 614-15(2011).

182. See Stella Burch Elias, Rethinking "Preventive Detention" from aComparative Perspective: Three Frameworks for Detaining Terrorist Suspects, 41COLUM. HUM. RTS. L. REV. 99, 124 (2009) (noting that there is considerablevariation around the world as to what constitutes a fair trial).

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as existing within fair trial rights, due to discrepancies between civiland common law jurisdictions on the particular content of the right toa fair trial.18 3 Therefore, even if there is a general right to a fair trialguaranteed under customary international law, it would be difficultto implement such a right in national courts without a guiding treatysuch as the ICCPR. More importantly for potential claimants inAmerican courts, the right to a fair trial seemingly lacks the requiredspecificity for an international norm set out in Sosa, which may befatal if courts interpret the requirements of Sosa to apply beyond ATScases. 184

As a result, individuals who have suffered violations of theright to a fair trial likely would not be able to rely on that norm alonein national courts due to its lack of clear scope or content.Consequently, there is a need to elucidate the customaryinternational law norms within the right to a fair trial that mayindependently be considered rights under customary internationallaw, in order to identify those subsidiary rights that may have agreater chance of vindication in national courts than a generalcustomary fair trial norm.

II. RIGHT TO AN INTERPRETER UNDERCUSTOMARY INTERNATIONAL LAW

A. State Practice and Opinio Juris

The right to an interpreter is one such right within thebroader right to a fair trial that is independently protected as a rightunder customary international law due to near universal statepractice and opinio juri.1 8 5 Similarly to the right to a fair trial, the

183. In 2001 the ICTY Trial Chamber in Milogevic found that an accusedhas a customary right to self representation, which has been rejected by severalcommentators. See Prosecutor v. Milosevid, Case No. IT-02-54-AR73.7, Decisionon Interlocutory Appeal of the Trial Chamber's Decision on the Assignment ofDefense Counsel, 11 (Int'l Crim. Trib. for the former Yugoslavia July 3, 2001);Gideon Boas, Self-Representation before the ICTY, 9 J. INT'L CRIM. JUS. 53, 56(2011) [hereinafter Boas, Self-Representation]; Michael P. Scharf & ChristopherM. Rassi, Do Former Leaders Have an International Right to Self-Representationin War Crimes Trials?, 20 OHIO ST. J. Dis. RES. 3, 37-38 (2005).

184. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004); see alsoBradley et al., supra note 165, at 896 (describing the heightened standards forcustomary international law norms set out in Sosa).

185. See BOAS, MILOSEVId, supra note 177, at 17 (stating that theoverarching right to a fair trial is a jus cogens norm and that the "provisions

[48.3


right to an interpreter has been enumerated as a right undernumerous international human rights conventions and treaties. Theright to an interpreter is guaranteed by Article 14 § 3(f) of theJCCPR,186 Article 6 § 3(e) of the ECHR, 187 Article 8 § 2(a) of theACHR,188 Article 21 § 4(f) of the ICTY Statute,189 Article 20 § 4(f) ofthe ICTR Statute,190 Article 17 § 4(f) of the SCSL Statute,1 91 Articles55 and 67 of the Rome Statute, 192 Article 35(f) of the ECCC Charter,193and Articles 15 and 16 of the SCL Statute. 194 The right to aninterpreter has also been clarified by the European Commission inDirective 2010/64/EU 195 and by the Human Rights Committee inGeneral Comment No. 32.196 Migrants may also have a protectedright to an interpreter under international human rights norms formigrants. 197

The exception to the universal codification of the right to aninterpreter is the African Court on Human and Peoples' Rights,which does not have an enumerated guarantee of the right to aninterpreter under the African Charter on Human and Peoples'Rights.1 98 Nevertheless, in 1992 the African Commission on Humanand Peoples' Rights adopted a resolution stating that accused personsshall have "the free assistance of an interpreter if they cannot speakthe language used in court" due to the relationship of the right to theoverarching right to a fair trial. 199 Furthermore, the AfricanCommission on Human and People's Rights found in Malawi African

which make up the content or constituent parts of that right are" customaryinternational law).

186. ICCPR, supra note 12, art. 14, para. 3(f).187. ECHR, supra note 13, art. 6, para. 3(e).188. ACHR, supra note 15, art. 8, para. 2(a).189. ICTY Statute, supra note 17, art. 21, para. 4(f).190. ICTR Statute, supra note 18, art. 20, para. 4(f).191. SCSL Statute, supra note 19, art. 17, para. 4(f).192. Rome Statute, supra note 20, art. 55, para. 1(c), art. 67, para. 1(f).193. ECCC Statute, supra note 21, art. 35(f).194. STL Statute, supra note 22, art. 15(d), art. 16, para. 4(g).195. Directive 2010/64/EU of the European Parliament and of the Council

of 20 October 2010 on the Right to Interpretation and Translation in Criminalproceedings, 2010 O.J. (L 280).

196. General Comment No. 32, supra note 23.197. See International 3grants Bill of Rights: International Migrants Bill

offRights, With Commentary, 28 GEO. IMMIGR. L.J. 23, 60 (2013).198. African Charter, supra note 16, art. 7.199. African Commission on Human and Peoples' Rights, "Resolution on

the Right to Recourse and Fair Trial", Eleventh Session, 2-9 March 1992,para. 2(e)(iv).

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Association and Others v. Mauritania that the right to an interpreterwas included within an accused person's right to a defense under theAfrican Charter.200

In addition to international instruments, Professor Bassiounihas identified the right to an interpreter as guaranteed by thirty-twonational constitutions 201: Antigua and Barbuda, 202 Bahamas, 203Barbados,20 4 Belize,2 °5 Botswana,2 °6 Canada,20 7 Dominica,2 °s Estonia,2 °9Ethiopia, 210 Fiji, 211 Gambia, 212 Grenada, 213 Guyana, 214 Jamaica, 215Kenya, 2 16 Kiribati, 217 Malta, 21 8 Mauritius, 219 Nauru, 22o Nicaragua,22 1

200. Malawi African Association and Others v. Mauritania, Case No. 54/91,97 (African Comm'n H.P.R. May 11, 2000).201. Bassiouni, supra note 24, at 284.202. THE ANTIGUA AND BARBUDA CONSTITUTIONAL ORDER 1981, ch. II

§ 15(2)(f).203. THE CONSTITUTION OF THE COMMONWEALTH OF THE BAHAMAS, June

20, 1973, ch. III § 20(2)(f).204. THE CONSTITUTION OF BARBADOS Nov. 22, 1966, ch. III § 18(2)(f).205. BELIZE CONSTITUTION ACT Sept. 21, 1981, pt. II § 6(3)(f)206. CONSTITUTION OF BOTSWANA, 1966 (as amended up to 2006), ch. II

§ 10(2)(f).207. Canadian Charter of Rights and Freedoms, Part I of the Constitution

Act, 1982, beingSchedule B to the Canada Act, 1982, c. 11 (U.K.), pt I § 14.208. CONSTITUTION OF THE COMMONWEALTH OF DOMINICA Nov. 3, 1978,

§ 8(2)(f).209. CONSTITUTION OF THE REPUBLIC OF ESTONIA June 28, 1992, § 21.210. CONSTITUTION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

Dec. 8, 1994, art. 20(7). Note that Prof. Bassiouni's study incorporated an earlierversion of Ethiopia's Constitution that also had a provision protecting the right toan interpreter but was placed in a different chapter.

211. CONSTITUTION OF THE REPUBLIC OF FIJI Sep. 6, 2013, § 14(2)(i).Note that Prof Bassiouni's study incorporated an earlier version of Fiji'sConstitution that also had a provision protecting the right to an interpreter butwas placed in a different article.

212. CONSTITUTION OF THE REPUBLIC OF THE GAMBIA 1997, § 24(2)(f).Note that Prof Bassiouni's study incorporated an earlier version of Gambia'sConstitution that also had a provision protecting the right to an interpreter butwas placed in a different article.

213. THE GRENADA CONSTITUTION ORDER Dec. 19, 1973, ch. I § 8(2)(f).214. THE GRENADA CONSTITUTION ORDER Feb. 20, 1980, pt. 2, tit. 1,

art. 144(2)(f).215. CONSTITUTION OF JAMAICA July 25, 1962, ch. III § 20(6)(e).216. THE CONSTITUTION OF KENYA Dec. 27, 2010, ch. IV, art. 50(2)(m).

Note that Prof Bassiouni's study incorporated an earlier version of Kenya'sConstitution that also had a provision protecting the right to an interpreter butwas placed in a different article.

217. THE KIRIBATI INDEPENDENCE ORDER [CONSTITUTION] June 26, 1979,ch. II § 10(2)(fP.


Nigeria, 222 Papua New Papua New Guinea,223 Peru,224 Romania, 225 St.Kitts and Nevis, 226 Sierra Leone, 227 Solomon Islands, 221 Swaziland,

229

218. CONSTITUTION OF MALTA Sept. 21, 1964, ch. IV § 39(6)(e).219. CONSTITUTION OF THE REPUBLIC OF MAURITIUS Mar. 12, 1968, ch. II

§ 10(2)(f).220. CONSTITUTION OF NAURU May 17, 1968, pt. II § 10(3)(d).221. CONSTITUCION POLTICA DE LA REPUBLICA DE NICARAGUA

[CONSTITUTION] tit. IV, ch. I, art. 34(6), LA GACETA, DIARO OFICIAL [L.G.]9 January 1987.

222. CONSTITUTION OF NIGERIA (1999), § 366(e). Note that Prof.Bassiouni's study incorporated an earlier version of Nigeria's Constitution thatalso had a provision protecting the right to an interpreter but was placed in adifferent article.

223. CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEASept. 16, 1975, pt. III, div. 3(B), art. 37(4)(d).

224. POLITICAL CONSTITUTION OF PERU, DEC. 31, 1993, as amended by LawNo. 2942 (2009), tit. I, ch. I, art. 2(19). Note that Prof. Bassiouni's studyincorporated an earlier version of Peru's Constitution that also had a provisionprotecting the right to an interpreter but was placed in a different article.

225. CONSTITUTION OF ROMANIA Nov. 21, 1991, tit. III, ch. VI § I, art. 128.Note that Prof. Bassiouni's study incorporated an earlier version of Romania'sConstitution that also had a provision protecting the right to an interpreter butwas placed in a different article.

226. STATUTORY INSTRUMENTS, 1983 NO. 881, SAINT CHRISTOPHER ANDNEVIS [CONSTITUTION] June 22, 1983, ch. II § 10(2)(f) (St. Kitts and Nevis).Note that Professor Bassiouni used the spelling, "St. Christopher-Nevis".

227. THE CONSTITUTION OF SIERRA LEONE Oct. 1, 1991, ch. III § 23(5)(e).228. THE CONSTITUTION OF SOLOMON ISLANDS July 7, 1978, ch. II

§ 10(2)(f).229. THE CONSTITUTION OF THE KINGDOM OF SWAZILAND ACT, 2005 Feb. 8,

2006, ch. III § 21(2)(g). Note that Prof. Bassiouni's study incorporated an earlierversion of Swaziland's Constitution that also had a provision protecting the rightto an interpreter but was placed in a different chapter.

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Trinidad and Tobago, 230 Tuvalu, 231 Uganda, 232 Zambia 233 andZimbabwe.

34

Other national constitutions not identified by ProfessorBassiouni that explicitly protect the right to an interpreter are:Afghanistan, 235 Albania, 236 Angola, 237 Armenia, 238 Azerbaijan, 239Bolivia, 240 China, 241 Croatia, 242 Cyprus, 243 Czech Republic, 244Ecuador, 245 Finland, 246 Georgia, 24 Ghana, 248 Italy, 249 KsoVO, 250

230. CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ACTMar. 29, 1976, amended Oct. 31, 2000 by Act No. 29 of 1999, ch. I, pt. I § 5(2)(g).

231. THE CONSTITUTION OF TUVALU 1986, pt. II, div. 3(A) § 22(3)(g).232. CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995 Oct. 8, 1995, as

amended Sept. 30, 2005, ch. IV § 28(3)(f). Note that Prof. Bassiouni's studyincorporated an earlier version of Uganda's Constitution that also had a provisionprotecting the right to an interpreter but was placed in a different chapter.

233. CONST. OF ZAMBIA (1996), as amended Jan 5, 2016, pt. III, art. 18(2)(f).Note that Prof. Bassiouni's study incorporated an earlier version of Zambia'sConstitution that also had a provision protecting the right to an interpreter butwas placed in a different article. Also note that Zambia's constitution wasamended on Jan. 5, 2016; however the amendments do not appear to have alteredPart III on fundamental rights and freedoms of the individual.

234. CONSTITUTION OF ZIMBABWE Dec. 21, 1979 , as amended Mar. 16,2013, ch. IV, pt. II § 70(1)(j). Note that Prof. Bassiouni's study incorporated anearlier version of Zimbabwe's Constitution that also had a provision protecting theright to an interpreter but was placed in a different chapter.

235. CONSTITUTION OF THE ISLAMIC REPUBLIC OF AFGHANISTAN Jan. 26,2004, ch. VII, art. 135.

236. KUSHTETUTA E REPUBLIKES SE SHQIPEISE [CONSTITUTION] Nov. 28,1998, pt. II, ch. II arts. 28, 31 (Alb.).

237. CONSTITUTION OF ANGOLA 2010, tit. II, ch. II, sec. II, art. 63(i).238. CONSTITUTION OF THE REPUBLIC OF ARMENIA July 5, 1995, ch. II.,

art. 16.239. CONSTITUTION OF THE AZERBAIJAN REPUBLIC Nov. 12, 1995 ch. VII,

art. 127, sec. 10. Note that Azerbaijan does not have an enumerated right to a fairtrial but does protect the right to an interpreter.

240. CONSTITUCION POLITICA DEL ESTADO [CONSTITUTION] Jan. 25, 2009,art. 120(11) (Bol.). Note that Prof. Bassiouni's study incorporated an earlierversion of Bolivia's Constitution that did not have an provision guaranteeing theright to an interpreter.

241. XIANFA [CONSTITUTION], art. 134 (1982) (China). Note that China doesnot have an enumerated right to a fair trial but does protect the right to aninterpreter.

242. CONSTITUTION OF THE REPUBLIC OF CROATIA July 6, 2010, art. 29.243. CONSTITUTION OF THE REPUBLIC OF CYPRUS July 1960, art. 12(5)(e),

art. 303(e).244. CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS [Constitution]

Dec. 16, 1992, art. 37(4) (Czech.).245. CONSTITUTION OF THE REPUBLIC OF ECUADOR Oct. 20, 2008,

art. 76(7)(f).


Lesotho, 251 Lithuania, 252 Malawi, 253 Maldives, 254 Mongolia, 255Montenegro, 256 New Zealand,257 Paraguay,258 Serbia,25 9 Saint Lucia,260Saint Vincent and the Grenadines, 261 Samoa, 262 Seychelles, 263Slovakia,264 Somalia and Somaliland,265 South Africa,266 Sri Lanka,267Tajikistan, 268 Turkmenistan, 269 Uzbekistan, 270 and Vanuatu. 271

246. CONSTITUTION OF FINLAND June 11, 1999, § 17. Note that section 17states that the rights of persons in need of an interpreter or translator will be setdown by an Act.

247. CONSTITUTION OF GEORGIA Aug. 24, 1995, art. 85(2).248. CONSTITUTION OF THE REPUBLIC OF GHANA 1992, art. 19(2)(d), (h).249. ART. 111 COSTITUZIONE [CONSTITUTION] (It.).250. CONSTITUTION OF THE REPUBLIC OF KOSOVO 2008, arts. 29, 30.251. CONSTITUTION OF LESOTHO 1993, art. 12(2)(f).252. CONSTITUTION OF THE REPUBLIC OF LITHUANIA Oct. 25, 1992, art. 117.253. CONSTITUTION OF THE REPUBLIC OF MALAWI May 16, 1994,

art. 42(2)(f)(ix).254. CONSTITUTION OF THE REPUBLIC OF THE MALDIVES 2008, art. 51(d).255. CONSTITUTION OF MONGOLIA Jan. 13, 1992, art. 53.256. CONSTITUTION OF MONTENEGRO 2007, arts. 29, 37.257. Bill of Rights Act 1990, S 24(g) (N.Z.).258. CONSTITUTION OF PARAGUAY June 20, 1992, art. 12(4).259. CONSTITUTION OF THE REPUBLIC OF SERBIA 2006, art. 32.260. SAINT LUCIA CONSTITUTION ORDER Dec. 20, 1978, ch. I, art. 8(2)(b), (t).261. THE SAINT VINCENT AND THE GRENADINES CONSTITUTION ACT July

26, 1979, ch. I, art. 8(2)(f).262. CONSTITUTION OF THE INDEPENDENT STATE OF WESTERN SAMOA Oct.

28, 1960, pt. II, art. 9(4)(e).263. CONSTITUTION OF THE REPUBLIC OF SEYCHELLES June 21, 1993,

art. 19(2)(f).264. USTAVA SLOVENSKEJ REPUBLIKY [CONSTITUTION] Sept. 3, 1992,

art. 47(4) (Slovk.).265. THE FEDERAL REPUBLIC OF SOMALIA PROVISIONAL CONSTITUTION

Aug. 1, 2012, art. 35(10). In Somaliland, defendants are provided with freeinterpreters by the Somaliland government. See U.S. DEP'T OF STATE, COUNTRYREPORTS ON HUMAN RIGHTS PRACTICES FOR 2016: SOMALIA 10 (2016),https://www.state.gov/documents/organization/265512.pdf.

266. S. AFR. CONST., 1996, art. 35(3)(k).267. THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI

LANKA Sept. 19, 1978, art. 24(3). Note that Prof. Bassiouni's study did not list theSri Lankan Constitution as guaranteeing the right to an interpreter, despite the1978 Constitution containing an article on language rights in the countrygenerally and language rights in courts specifically.

268. CONSTITUTION OF THE REPUBLIC OF TAJIKISTAN June 22, 2003,ch. VIII, art. 88.

269. CONSTITUTION OF TURKMENISTAN 2008, sec. VI, art. 106.270. CONSTITUTION OF THE REPUBLIC OF UZBEKISTAN Dec. 8, 1992, pt. V,

ch. XXII, art. 115.271. CONSTITUTION OF THE REPUBLIC OF VANUATU July 30, 1980, ch. II,

pt. 2, art. 5(2)(c), (d).

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Additionally, the right to an interpreter is explicitly protected in theUnited Kingdom through the Human Rights Act.27 2

In addition to these constitutions that have explicitguarantees to interpretation rights in criminal proceedings, somenational constitutions have provisions that would in practiceguarantee language assistance for individuals who do not speak thelanguage used in court. Neither the right to an interpreter nor theright to be informed of the charges against oneself in a language oneunderstands are explicitly guaranteed in the Constitution of Bosniaand Herzegovina; however, Art. II para. 2 states that the rights andfreedoms enumerated in the ECHR, which includes the right to aninterpreter, are directly applicable in BiH and have priority over allother law. 2 3 The right to an interpreter is not enumerated in the2003 Draft Constitution of the State of Palestine or the constitutionsof the D.R.C., Eritrea, Namibia, or Switzerland, but in all an accusedhas a right to be informed of the charges against him in a languagehe understands. 4

In the United States, due process rights under the Fifth,Sixth and Fourteenth Amendments provide protection for the right toan interpreter . 275 Additionally, the right to a court interpreter infederal court is protected by the Court Interpreters Act of 1978 andcases pre-dating the Act, such as United States ex rel. Negron v. NewYork.27 6 In California and New Mexico, the right to an interpreter isprotected by the state constitution.2 7 The right to an interpreter isalso protected in other states by state statutes 27 8 or common law.

27 9

272. Human Rights Act, 1998, c. 42, § 1(3), sch. 1, pt. 1, art. 6(3)(a), (e)(Eng.).

273. CONSTITUTION OF BOSNIA AND HERZEGOVINA art. II, para. 2.274. CONSTITUTION OF THE STATE OF PALESTINE Mar. 25, 2003, ch. II.,

art. 29; THE CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO 2005,tit. II, ch. I, art. 18 (note that Professor Bassiouni's study originally included theConstitution of Zaire, which did not provide for fair trial or interpretation rights);QwAM ERITREA [CONSTITUTION] ch. III, art. 17(3); THE CONSTITUTION OF THEREPUBLIC OF NAMIBIA 2010, ch. 3, art. 11(2); BUNDESVERFASSUNG [BV][CONSTITUTION] Apr. 18, 1999, SR 101, art. 31, para. 2 (Switz.).

275. U.S. CONST. amends. V, VI, XIV; see also MASON, supra note 7, at 1.276. Court Interpreters Act, 28 U.S.C. § 1827 (2012); United States ex rel.

Negron v. New York, 434 F.2d 386 (2d Cir. 1970).277. CAL. CONST. art. I, § 14; N.M. CONST. art. II § 14; see SUSAN

BERK-SELIGSON, THE BILINGUAL COURTROOM 26 (1990).278. See ALA. CODE § 15-1-3 (West 2016); ARIZ. REV. STATE. ANN. § 12-241

(West 2016); ARK. CODE ANN. § 16-10-1101 (West 2013); COLO. REV. STAT. § 18-1-403 (West 2014); DEL. SUPER. CT. CRIM. PROC. R. 28; FLA. STAT. ANN. § 29.004(West 2016); GA. CODE ANN § 15-1-14 (West 2013); HAW. R. PENAL PROC. 28 (West

[48.3


Finally, Title VI of the Civil Rights Act of 1964 has been interpretedto require state courts receiving federal funds to provide interpreters,280 which was enforced in 2000 by Executive Order 13166.281

2012); IDAHO R. CRIM. PROC. 28 (1980); 725 ILL. COMP. STAT. 5/104-22 (West2016); IND. CODE § 34-45-1-3 (West 2016) (providing for an interpreter in civilproceedings, which in conjunction with IND. CODE § 35-35-2-2 (West 2016)provides also for interpreters in criminal proceedings); IOWA CODE § 622A.2 (West2016); KAN. STAT. ANN. § 75-4351 (West 2017); KY. REV. STAT. ANN. § 30A.410(West 2017); LA. CODE CRIM. PROC. art. 25.1 (2008); ME. R. U. CRIM. PROC. 28(West 2016); MD. CODE ANN., CRIM. PROC. § 1-202 (LexisNexis 2012); MASS. GEN.LAWS. ch. 211c, § 2 (2011); MICH. COMP. LAWS ANN. § 775.19a (2006); MINN. STAT.§ 611.30 (2009); MISS. CODE ANN. § 9-21-79 (2014); MO. REV. STAT. § 476.803(West 1999); NEB. REV. STAT § 6-703 (2011); NEV. REV. STAT. Ann. § 50.0515(LexisNexis 2012); N.H. SUPER. CT. CIV. R. 47; N.J. STAT. ANN § 2B:8-1 (2015);Rule 28, N.D. R. CRIM. PROC.; OHIO REV. CODE ANN. § 2311.14 (West 2004); OR.REV. STAT. § 45.275 (2014); 42 PA. CONST. STAT. § 4412 (2004); R.I. GEN. LAWS§ 8-19-3 (2012); S.C. CODE ANN. § 17-1-50 (2014); S.D. CODIFIED LAWS § 23A-22-11 (2004); TENN. R. CRIM. PROC. 28; TEx. GOV T CODE ANN. § 57.002 (West 2013);VT. STAT. ANN. tit. 1, § 332 (2015); VA. CODE ANN. § 19.2-164 (2015); WASH. REV.CODE § 2.42.010 (2012); W.VA. CODE § 5-14A-3 (2013); WIS. STAT. § 885.37 (2015);WYO. R. CRIM. PROC. 28; see also Jose Julian Alvarez-Gonzalez, Law, Languageand Statehood: The Role ofEnglish in the Great State ofPuerto Rico, 17 LAW &INEQ. 359, 369 (1999) (noting that Puerto Rico will provide an interpreter forcriminal defendants who do not have an adequate command of Spanish).

279. See Tsen v. State, 176 P.3d 1, 8 (Alaska Ct. App. 2008) (noting thatthe state law on the right to an interpreter was undefined by case law or statuteand thus required the court to look to federal law); State v. Natividad, 526 P.2d730, 733 (Ariz. 1974); State v. Munoz, 659 A.2d 683, 696 (Conn. 1995); Garcia v.State, 511 A.2d 1, 4 (Del. 1986); State v. Inich, 173 P. 230, 234 (Mont. 1918)(holding that the trial court has the discretion to appoint an interpreter); People v.Ramos, 258 N.E.2d 197, 198 (N.Y. 1970) (holding that N.Y. Crim. Proc. Law §260.20 requires that a defendant who cannot understand English to havetestimony translated to him in a language that he understands); Wise v. Short,107 S.E. 134, 136 (N.C. 1921) (holding that the court has the inherent power toappoint an interpreter); Parra v. Page, 430 P.2d 834, 837 (Okla. Crim. App. 1967)(holding that the defendant's fundamental rights were violated when he wasdenied an interpreter); State v. Masato Karumai, 126 P.2d 1047, 1050 (Utah1942) (holding that the court may, at the State's expense, appoint an interpreterwhere necessary to prevent injustice).

280. See Lau v. Nichols, 414 U.S. 563, 568-69 (1974); ROSEANN DUENASGONZALEZ, VICTORIA F. VASQUEZ & HOLLY MIKKELSON, FUNDAMENTALS OFCOURT INTERPRETATION: THEORY POLICY, AND PRACTICE 9-10 (2nd ed. 2012); seealso Maxwell Alan Miller et al., Language in the Law: Finding Justice inTranslation, 14 HARV. LATINO L. REV. 117, 130 (2011) (noting that under Title VIof the Civil Rights Act of 1964 state courts that receive federal funds are requiredto make interpreters available); Laura Abel, Language Access in State Courts 44n.6 (Brennan Ctr. For Justice, Public Law & Legal Theory Research SeriesWorking Paper No. 10-10, 2010) (noting that Title VI prohibits actions that resultin discrimination against people who do not speak English).

2017]


Additionally, language assistance is protected in AmericanArticle 5 military tribunals and Combatant Status Review Tribunalsfor unlawful combatants,2 82 as well as in Canadian military tribunalsfor unlawful combatant status reviews.2 83 The protection of the rightto an interpreter in such tribunals is interesting, as it suggests thatinterpretation rights extend to international humanitarian law andmay not be derogable in situations where other fair trial rights are.

2 84

Finally, international courts have demonstrated the existenceof international norms regarding language assistance by referencingfundamental judgments from different courts and tribunals.2 85 Thispractice indicates that while interpretation rights may be explicitlyguaranteed by the JCCPR or a regional human rights convention, theright is sufficiently similar across jurisdictions to be considered notjust a statutory right but also an international norm. Furthermore,some commentators have indicated that the right to translation ofdocuments, itself a subset of the right to an interpreter, has reachedthe status of customary international norm, suggesting that thebroader right to an interpreter must have as well.

2 86

Thus, the right to an interpreter is widely protected byinternational instruments and national constitutions. Although theright faces the same difficulties for establishing opinio juris as theright to a fair trial,287 in the case of interpretation rights, where thereis little indication that any state could be seen as a persistent objector

281. Exe. Order No. 13166, 65 Fed. Reg. 50,121 (Aug. 11, 2000);see GONZALEZ ET AL., supra note 280, at 9-10.

282. Thomas J. Bogar, Unlawful Combatant or Innocent Civilian?A Call toChange the Current Means for Determining Status ofPrisoners in the Global Waron Terror, 21 FLA. J. INT'L L. 29, 61 (2009).

283. Id. at 65.284. See infra notes 302-04 and accompanying text.285. See, e.g., Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01-04-

01/06-268, Decision on the Requests of Defence of 3 and 4 July 2006, 6 n.14 (Aug.4, 2006, p. 6 n.14 (relying in part on the Leudicke v. Germanyand Kamasinski v.Austria decisions from the ECtHR); Prosecutor v. Bagilishema, Case No. ICTR 95-1A-A, Appeal Judgement, 12 (July 3, 2002) (citing the ICTY in Prosecutor v.Kupreskid, Case No. IT-95-16-A, Appeal Judgement, 32 (Int'l Crim. Trib. for theformer Yugoslavia Oct. 23, 2001)); Harward v. Norway, Comme'n No. 451/1991,7.4 (Hum. Rts. Comm. July 15, 1994) (holding in favor of the State Party whocited the ECtHR's decision in Kamasinski v. Austria as part of their submission).

286. See generally Dingfelder Stone, supra note 177, at 159 (describingarguments that the right to translation is a customary norm of customaryinternational law as embodied in the ICCR and Rome Statute); see also infraPart II.B.

287. See supra Part I.B.

[48.3


in this case, state practice and protection by internationalinstruments may provide sufficient evidence of opinio jurs 88 Forinstance, it is interesting to note that states which are regularlyaccused of general fair trial violations such as Azerbaijan and Chinaactually explicitly protect the right to an interpreter in their national

289constitutions, suggesting that interpretation rights are subjectivelyvalued by states even when the broader fair trial norm is notnecessarily. Some commentators have also argued that where there isa great deal of sufficient state practice, there may be less need forevidence of opinio juris, 290 although this view has recently beenrejected by the International Law Commission. 9 1 Therefore, together,the widespread protection of the right to an interpreter ininternational instruments and national constitutions and statutesgives substantial evidence of state practice and opinio juris that theright to an interpreter is a norm under customary international law.

B. Scope and Content of the Right to an Interpreter

In addition to satisfying the requirements for customaryinternational norm status of state practice and opini

the right to an interpreter under customary international...

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