Amicus Curiae Brief — Medellin v. Dretke

[Supreme Com U3—

FILED

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No. 04-5928 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

JOSE ERNESTO MEDELLIN

Petitioner,

Vv.

DOUG DRETKE, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF FORMER

UNITED STATES DIPLOMATS

AS AMICI CURIAE IN SUPPORT

OF PETITIONER

DONALD B. AYER HAROLD HONGiv KOH

WILLIAM K. SHIREY II (Counsel of Record)

CHARLES T. KOTUBY, JR. MARY J. HAHN

JENNIFER L. SWIZE ALLARD K. LOWENSTEIN

JONES DAY INTERNATIONAL HUMAN

51 Louisiana Ave., NW RIGHTS CLINIC

Washington, D.C. 20001 YALE LAW SCHOOL

(202) 879-3939 127 Wall Street

New Haven, CT 06510

(203) 432-1660

Counsel for Amici

NAS ea SSR A SE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

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TABLE OF AUTHORITIES

Page

Federal Cases

Asakura v. City of Seattle, 265 U.S. 332 (1924) ..cccceeeeees 11

Breard v. Greene, 523 U.S. 371 (1998).........cccccccscsssssseseees 13

Crosby v. Nat'l Foreign Trade Council,

es Se CEE weccanpitibecenicvicansstecivimphtmmensacsioniies 2, 12

Dep't of Transp. v. Public Citizen,

Rae Sk Satis. Se EE Phionrtinncctecennenesiemneadiiiilabenniangndnnbiiniatain 25

FPC v. Tuscarora Indian Nation,

FE Rs FP COED hceatiantanticlocaptniniiciscunvsdbiiintatasatibemitin 3

Hauenstein v. Lynham, 100 U.S. 483 (1879) .......0.ccccceeeeeees 1]

Hilton v. Guyot, 159 U.S. 113 (1895S)......ccccccccccsscscoesecvessees 22

Medellin v. Dretke, 371 F.3d 270 (Sth Cir. 2004)............... 13

Missouri v. Holland, 252 U.S. 416 (1920)... eeeeceee 12

Republic of Austria v. Altmann,

ee es MOET CD icnadalnteiiiibsinitaiiciaistaiieisidaainidgtbiiiinnstnainamante 24

United States v. Belmont, 301 U.S. 324 (1937)............ 11, 12

United States v. Pink, 315 U.S. 203 (1942) w.....ccceeeeee 11,12

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) 0.0... 11

Decisions of Foreign Courts and

International Tribunals

Aerial Incident of 3 July 1988 (Iran v. U.S.),

1989 L.C.J. 132 (Dec. 13), and

es OF re Be itarecntoniiappininnieintinpenitianmembicciigns 23

Avena and Other Mexican Nationals

(Mexico v. U.S.), 2004 LC.J. No. 128.............. 1, 2,3, 13

Canada v. S.D. Myers, Inc., 2004

Fed. C.C. LEXES 20 Cee. C2, FBG) wcccecocseseccecssecscoccseees 25

European Communities—Regime for the

Importation, Sale and Distribution of Bananas,

| en 25

European Communities—Measures Concerning

Meat and Meat Products (Hormones),

WTO Doc. Series WT/DS26 & WT/DS48..............000000 25

iV

TABLE OF AUTHORITIES

(Continued)

NAFTA-Chapter | 1-Investment, Canada Dep’t of

Foreign Affairs and Int’! Trade Website, at http://

www.dfait-maeci.gc.ca/tna-nac/NAFTA-en.asp ............ 25

NAFTA Investor-State Arbitrations, U.S.

Department of State Website, at http://

WWW. State. gOV/ S//C3439.NIM ........cccceercesseereccessseenseeees 25

Trial of Pakistani Prisoners of War (Pak. v. IndiaJ,

1973 L.C.J. 328 (July 13), and

ig et RL ree ae 23

Ramon Martinez Villareal v. United States,

Case 11.753, Report No. 52/02,

Ng ad 6 Reece nr ner 16-17

Constitutions

ARTICLES OF CONFEDERATION AND

CB eee ee 6

th Gs Oe SS eee eee ides i)

U.S. CONST. art. IT, § 2, Ch. 2...ceseseseseneneneees oceevecevovevevecesoes 5,9

(8G ££ RY ) ae eS 9,10

Statutes and Legislative Materials

VIENNA CONVENTION ON CONSULAR RELATIONS,

Se, a Fe ee rietertetictttcnttinietiticciamcniiitaitines 15

Treaties and Other International Materials

Charter of the U.N., entered into force

Chet, BE, FOG, Fe RE, FT Be cinstcccininnsoninsesensenitiniamenninn 3

Convention Defining and Establishing the

Functions and Privileges of Consuls and

Vice Consuls, Nov. 14, 1788, U.S.-France,

fg ee 10

Convention on International Civil Aviation,

opened for signature Dec. 7, 1944, 3 Bevans 944,

RS CA Fe i i> MP cnccepssivcincienctinnniigininnnictusteniiiinintaplinitahiagtie 24

Vv

TABLE OF AUTHORITIES

(Continued)

Page

Int'l Air Transp. Agreement, opened for

signature Dec. 7, 1944, 3 Bevans 922,

DO Bh.0as 6 is. SP octecstiinidsinininentnntrmenieiemanenemnimnietiitse 24

N. Amer. Free Trade Agreement,

Sept. 6, 1992, 32 LL.D. 296 (1993S) ...cccccecccccecceceecessereess 24

Optional Protocol Concerning the Compulsory

Settlement of Disputes, Apr. 24, 1963,

21 U.S.T. 325, 596 U.N.T.S. 487 ........0sceceseeees 1,4, 13, 19

Patent Cooperation Treaty, opened for signature

June 19, 1970, 28 U.S.T. 7645, 1160 U.N.T.S. 231....... 24

Statute of the Int’] Court of Justice, 59 Stat. 1055................ 3

Treaty of Friendship, Commerce and Navigation,

Feb. 2, 1948, U.S.-Italy, 63 Seat. 2255,

TP Gales Babe UF 8 ccvtuigsincnduliiatbeniianiitndansatepcedmnimnsentonats 23

Treaty of Friendship, Commerce and Navigation,

Oct. 29, 1954, U.S.-F.R.G., 7 U.S.T. 1839,

BUD Gd esE ly Denthentintiniaieetitindinainoanaiamesiaiitaibenblsatia 23

Treaty of Peace with Great Britain, Sept. 3,

5 Peay, Sar COR © scteecnninapececimurstelnighinipinlinnipteniitindiienes 6,7

Treaty of Peace with Japan, Sept. 8, 1951,

DS PO Be tel is GD sertintepencicindiautincsindnsiccciinizgsion 23

Understanding on Rules and Procedures Governing

the Settlement of Disputes (DSU), entered into

force Jan. 1, 1995, in Final Act Embodying the

Results of the Uruguay Round of Multilateral

Trade Negotiations, Marrakesh, Apr. 15, 1994,

PP Cre BRP CIP ID aeiitlicicnssnsodencreniatiintimimascentinatend 24, 25

Universal Copyright Convention, opened for

signature Sept. 6, 1952, 6 U.S.T. 2731, 216

Fes Gale Caes nmsccsinersnpenstieciittiibinntiniadnatiinidiiieaispeamniininmnitate 24

Vienna Convention on Consular Relations, Apr.

24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 ....... 1,4, 13,19

vi

TABLE OF AUTHORITIES

(Continued)

Law Reviews and Treatises

SAMUEL FLAGG BEMIS, A DIPLOMATIC

HISTORY OF THE UNITED STATES (4th ed. 1955) .............. 8

Jonathan I. Charney & W. Michael Reisman,

Agora: Breard, 92 AM. J. INT’L L. 666 (1998)............... 21

Samuel B. Crandall, Treaties, Their r

Making and Enforcement (1904)............ccccescceeeeeeeeerees 6,7

1 GEORGE TICKNOR CURTIS, HISTORY OF THE

ORIGIN, FORMATION, AND ADOPTION OF THE

CONSTITUTION OF THE UNITED STATES (1854)...........--0+. 8

David M. Golove, Treaty-Making and the Nation:

The Historical Foundations of the Nationalist

Conception of the Treaty Power,

98 MICH. L. REV. 1075 (2000) ............:cccceeees: .-6, 7, 8, 10

Rodrigo Labardini, /nternational Court of

Justice Finds U.S. Breached its Obligations

under the Vienna Convention on Consular

Relations, 20 INT’L ENFORCEMENT L. REP.

re Rita ee ee ee a eee ae 15, 16

LUKE T. LEE, CONSULAR LAW AND

om Ee ky Ss eee ere ers errors: 14

FREDERICK W. MARKS III, INDEPENDENCE

ON TRIAL, FOREIGN AFFAIRS AND THE

MAKING OF THE CONSTITUTION (1973) .....ccccccsceeeeeeeeee 5,6

Colter Paulson, Compliance with Final Judgments

of the International Court of Justice Since 1987,

98 AM. J. INT’L L. 434 (2004) .........cccccseccesccessceerecereeenes 23

S. Adele Shank & John Quigley, Foreigners on

Texas’ s Death Row and the Right of Access to

A Consul, 26 ST. MARY’S L.J. 719 (1995) ......cccccceeseeenes 14

JOHN LORD SHEFFIELD, OBSERVATIONS ON THE

COMMERCE OF THE AMERICAN STATES

(Dublin, Luke White 2d ed. 1784).........:ccccccceeceseresereeseees 8

vii

TABLE OF AUTHORITIES

(Continued)

Victor M. Uribe, Consuls at Work: Universal

Instruments of Human Rights and Consular

Protection in the Context of Criminal Justice,

SD BSUS. 5. BOE 0. La, FFD CTFW F pecccvccscccsintnsspesvnsssnioes 13, 14

Other Authorities

Amnesty International, The Execution of Angel

Breard: Apologies Are Not Enough, at

http://web.amnesty.org/library/Index/

engAMRS510271998 (May 1, 1998) ...........ccsscsseeeees 17-18

Associated Press, /ragis Refuse Access to

Americans for Second Day, Apr. 19, 1995 ........ccccseeeeeees 14

George Boehmer, Killer Loses Fight for Life,

DAILY TELEGRAPH (Sydney, Australia),

DERE. |, Fay OE Bi cniarinimsnisetsssccticrtiacnibemnenussenensseintyia 18

Raymond Bonner, Mexican Killer is Refused

Clemency by Oklahoma, N.Y. TIMES,

FURY FE, TBO t > GB PB nccsnsssctnsscnsinspintacimencttensessepetesnaientiiiins 18

Raymond Bonner, U.S. Bid to Execute Mexican

Draws Fire, N.Y. TIMES, Oct. 26, 2000, at A20 ........4.. 16

Roger Cohen, U.S. Execution of German Stirs

Anger, N.Y. TIMES, Mar. 5, 1999, at 14.................sceceees 18

Barbara Crossette, For First Time, U.S. Is

Excluded From U.N. Human Rights Panel,

N.Y. TIMES, May 4, 2001, at Al .....c.ccccccccsscccssssccsscorseses 18

THE FEDERALIST No. 22 (Alexander Hamilton) ............... 8,9

THE FEDERALIST NO. 42 (James Madison) .............c.c0000eeeeeee 9

THE FEDERALIST NO. 64 (John Jay) ........:cccccccccsseeceeeeeeeeenees 10

Germany Sues U.S. For Breaking Law, REUTERS,

Sept. 16, 1999, available at http://www.ub.es/

penal/historia/Pde M/dpicintl.Htm ..............:ccceeseeneeeneeees 19

viii

TABLE OF AUTHORITIES

(Continued)

Alexander Hamilton, A Letter from Phocion to

the Considerate Citizens of New York

(Jan. 1-27, 1784), reprinted in 3 THE PAPERS

OF ALEXANDER HAMILTON 489 (Harold C. Syrett

& Jacob E. Cooke eds. 1962) .........::cccccccceeeseseserreeseeeeeeeees 7

Adam E. Jacobs and Mark A. Berman,

Rediscovering the Right to Consul, N.J.L.J.,

EE. Fg FP OR Dabciansinccspcnasinntuscvieciinnetbcspiccrncsentecnseesintes 20

Brian Knowlton, Execution Pits Mexico Against

U.S., INT’L HERALD TRIB., Aug. 16, 2002, at 1........ 16, 20

Laura LaFay, World Court-U.S. to Halt

Execution, VIRGINIAN-PILOT, Apr. 10, 1998, at A1....... 15

Letter from Madeleine K. Albright, U.S.

Secretary of State, to James S. Gilmore III,

Governor of Virginia (Apr. 13, 1998) ........sscssserseseeees 21

Nicaragua Solidarity Network of Greater

New York, Hondurans Protest Execution

in the U.S., WEEKLY NEWS UPDATE ON THE

AMERICAS, Apr. 26, 1998, available at

http://www.tulane.edu/~libweb/RESTRICTED/

WEEKLY /1998_O426.128 .....cccsscocossssssscsercosesseseevesesesoeses 20

Colin Nickerson, Canadians Protest a Texas

Execution; Inmate Set To Die Today for 1975

Killing, BOSTON GLOBE, Dec. 10, 1998, at A2 ........ 16, 20

Paraguay Angered by US Execution, BBC News,

Apr. 15, 1998, available at http://news.bbc.co.uk/

I /hi/world/americas/78602.StM .........cccceseeeeeseereseeeeeeees 20

Dana Priest & John M. Goshko, Genocide

Warning Center Established; Clinton

Human Rights Initiatives Include Changes

at INS, WASH. PosT, Dec. 11, 1998, at A52..........cce00e 17

| THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (Max Farrand ed., rev. ed. 1937) ......:ccseceeeeeeees 8,9

ix

TABLE OF AUTHORITIES

(Continued)

Page

Resol. On Death Sentence Handed Down on

Greg Summers in Texas, USA,

OUR, Fe A Gee BUD ehesraiiseriresecsinhrcscacetineennnnss 17

Philippe Sands, An Execution Heard Around

the World, L.A. TIMES, Apr. 16, 1998, at BY... 14

David Schwartz, Plan to Execute German

Killers Attracts Scrutiny, DALLAS MORNING

2 8 ee, OM OS! ee eee ee 15

Somini Sengupta, Appeal in Murder Cites

International Treaty, N.Y. TIMES,

8 | ee _ nae,

David Stout, Do as We Say, Not as We Do: U.S.

Executions Draw Scorn From Abroad, N.Y.

TIMES, Apr. 26, 1998, § 4 (Week in Review)..... 18, 19, 20

Kevin Sullivan, Mexico Challenges U.S. on

Death Penalty Cases, WASH. POST,

8 Ye FS | eee ee 17

Jonathan Tepperman, Faulder: The Long-Term

View, NATIONAL Post (Toronto), Dec. 11, 1998 ........... 15

Texas Embroiled in International Legal Rights

Dispute Over Preparations to Execute a

Canadian Citizen (NPR Morning Edition

SOSRSCRG, ERNE. DB, FHSS) ccctatleldacrinrsatectsrctincnapstsissineveds 20

Texas Executes a Mexican Killer, Raising

a Furor Across the Border, N.Y. TIMES,

ID, Be, Foe HB TD Si cccccencicciiieniliitsinseinsibibemitinasticitdinibeians 20

Ginger Thompson, An Execution in Texas

Strains Ties with Mexico and Others, N.Y.

FURGRE, Rap. 0G, Dies OB Rib ccrisvincutinasinuisiciinitintanitintiie 15

x

TABLE OF AUTHORITIES.

(Continued)

Page

A Conversation on the Relevance of Foreign Law

for American Constitutional Adjudication with

U.S. Supreme Court Justices Antonin Scalia &

Stephen Breyer, Jan 13, 2005, at Amer. Univ.

Sch. of Law, transcript available at http://

~ wcl.american.edu/secle/founders/2005/050 1 13.cfm ......26

franscript: Confirmation Hearing of Condoleezz

Rice, Jan. 18, 2005, available at http://

www.nytimes.com/2005/01/18/politics/

Fa Oe SSD vonnscneguescntenminiettinnintiineiondiiiamiepantbete 22

Transcript of State Dep't Regular Briefing,

FED. NEWS SERV., July 15, 1999 00... .cccccscsesesessscereeeeeees 14

Transcript of State Dep't Regular Briefing,

FED. NEWS SERV., Aug, 19, 1999..........cccscsrccsessrrceeseees 14

U.N. Official Frets Over Canadian’s Texas

Execution; Ottawa Steps Up Bid To Spare

Albertan Convicted of Murder, TORONTO

es, TE: Bae: Bey OP Hee acitneinpeeesdcienectinciinactnncveisiaiens 20

United Nations Conference on Consular

Relations Official Records, U.N. Doc.

I ce Oe ee itcctteientiscpemmiacranetiincnnencens 15,19

U.S. Boosts Security in Honduras as Tempers

Flare, REUTERS, Apr. 24, 1998 ..........ccccrscccsrssesseseeseesees 20

Connie de la Vega, Going it Alone, AMER.

PRROSPICT, Fa, Bes BB A Bcccctecsesirnsccncssenecincseqsosennesin 18

Armando Villafranca, Life and Death Chasm,

Hous. CHRON., Sept. 28, 1997, at AL ......ccccscceeceeeeeseeees 21

STATEMENT OF INTEREST'

The Vienna Convention on Consular Relations, Apr. 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [Vienna Convention],

requires all signatory nations, including the United States, to

inform “without delay” any detained foreign national of his

right to request assistance from the consul of his own nation

and, if the national so requests, to inform “without delay” the

consular office of that national’s detention or arrest.

Notwithstanding these obligations, the state of Texas

arrested, tried, convicted, and sentenced Petitioner Jose

Ernesto Medellin—a Mexican national—to death, without

ever informing him of his right to seek assistance from the

Mexican Consulate.

In January 2003, the Mexican government brought suit in

the International Court of Justice [ICJ] against the United

States under the Optional Protocol Concerning _ the

Compulsory Settlement of Disputes [Optional Protocol],

which both Mexico and the United States have ratified,’

alleging that the United States had violated the Vienna

Convention in Petitioner's case, among others. After full

briefing and oral argument, the ICJ, on March 31, 2004,

issued a final judgment holding, inter alia, that the United

States had violated the Vienna Convention by failing to

inform 51 identified Mexican nationals—including

Petitioner—"“of their rights” under the Convention “to notify

' No party other than the Amici and their counsel authored this brief in

whole or in part, and no person or entity, other than Amici and their

counsel, has made a monetary contribution to the preparation or

submission of this brief. Both parties have granted consent to the filing

of this amici curiae brief. Letters of consent are on file with the Clerk of

the Court.

? The Optional Protocol provides that any disputes “arising out of the

interpretation or application of the Convention shall lie within the

compulsory jurisdiction of the International Court of Justice.” Optional

Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24,

1963, 21 U.S.T. 325, 326, 596 U.N.T.S. 487, 488.

2

the Mexican consular post of the[ir] detention.” Avena and

Other Mexican Nationals (Mexico vy. United States), 2004

L.C.J. No. 128, at 43 [Avena]. To remedy that violation, the

ICJ determined that the United States should “allow the

review and _ reconsideration of the conviction[s] and

sentence[s] by taking account of the violation of the rights

set forth in the Convention.” The Fifth Circuit refused,

holding that the Vienna Convention creates no individually

enforceable rights and that no judicial remedy is available for

the violation of Petitioner's rights.

Amici have served as Senior State Department Officials,

Ambassadors, and Legal Advisers to the U.S. Department of

State, representing the government of the United States at

home and abroad in both Republican and Democratic

administrations. See Crosby v. National Foreign Trade

Council, 530 U.S. 363, 385 (2000) (“[O}pinions of senior

National Government officials are competent and direct

evidence of the frustration of congressional objectives by [a]

state Act.”). Amici vary widely in their views regarding

whether or not the death penalty can ever be lawfully

administered and do not express any opinion on what the

ultimate resolution of Petitioner’s conviction and sentence

* Amici include former Secretary of State Madeleine K. Albright, former

Deputy Secretary of State Strobe Talbott, former Under Secretary of

State Thomas R. Pickering, former ambassadors Stephen W. Bosworth,

Jeffrey Davidow, James R. Jones, John O'Leary, J. Stapleton Roy, Nancy

Soderberg, Malcolm R. Wilkey and Frank G. Wisner, former Legal

Advisers Herbert J. Hansell and Abraham D. Sofaer, and Special

Presidential Envoy James C. O’Brien. Of their number, four have retired

with the rank of Career Ambassador, the highest rank that can be

awarded to members of the United States Foreign Service. Ambassador

Wilkey and Legal Adviser Sofaer were formerly federal judges, on the

United States Court of Appeals for the D.C. Circuit, and the U.S. District

Court for the Southern District of New York, respectively. Amici appear

in their personal capacities. Current affiliations of Amici are provided

here for identification purposes only, and are not intended to convey the

views of their affiliated institutions on the questions presented here. The

qualifications of Amici are listed in the Addendum to this brief.

3

should be after review and reconsideration. Some of the

signatories of this brief also disagree as to the correctness

and merits of the ICJ’s interpretations of the Vienna

Convention. But all Amici agree that, so long as the United

States adheres to the Optional Protocol, it is obliged to abide

by those decisions, and that this Court’s failure to respect the

ICJ’s judgment in Avena would significantly impair the

credibility of American diplomats in the international arena.

Refusing to respect the ICJ’s final judgment in Avena

would violate U.S. obligations under four interconnected

treaties that the President and Senate ratified—the Vienna

Convention, its Optional Protocol, the United Nations

Charter, and the annexed Statute of the ICJ.* To affirm the

Fifth Circuit and condone such multiple treaty violations

would impair important U.S. foreign policy interests and

reduce American standing in the world community.

Amici believe that “[g]reat nations, like great men [and

women], should keep their word,” FPC v. Tuscarora Indian

Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). This

Court should reverse the Fifth Circuit’s ruling, which is

inconsistent with sovereign commitments we have made, and

* In 1945, the United States accepted the duty to comply with ICJ

judgments when the Senate advised and consented to ratification of the

U.N. Charter and the annexed Statute of the ICJ, 59 Stat. 1055, T.S. 993

(1945) [ICJ Statute], as a treaty under Article II of the Constitution. The

ICJ is the “principal judicial organ of the United Nations.’ Charter of the

U.N., entered into force Oct. 24, 1945, art. 92, 59 Stat. 1031, 1051.

Under Article 94(1) of the Charter, “[eJach Member of the United

Nations undertakes to comply with the decision of the [ICJ] in any case

to which it is a party.” /d. Article 93 of the Charter declares all U.N.

Members to be ipso facto parties to the ICJ Statute, which is annexed to

and an integral part of the U.N. Charter. /d. Under Article 59 of the ICJ

Statute, decisions of the Court have “no binding force except between the

parties and in respect of that particular case.” \CJ Statute, 59 Stat. at

1062 (emphasis added). Thus, the Avena decision has binding force

between the United States and Mexico with respect to Petitioner

Medellin and fifty other Mexican nationals who .are specifically

mentioned in the ICJ's judgment. See Avena, 2004 L.C.J. No. 128, at 43.

4

will disrupt our diplomatic relations with close American

allies and damage critical U.S. interests governed by other

treaty regimes.

SUMMARY OF ARGUMENT

The ability of U.S. diplomats to carry out important

foreign policy objectives from the Founding to the present

day has critically depended upon strong enforcement of our

treaty obligations by the federal government and federal

courts. The Framers’ difficult experiences under the Articles

of Confederation taught them that the United States cannot

credibly conduct its foreign relations unless it honors its

treaty obligations. The severely limited treaty power granted

to the Continental Congress nearly crippled the young nation

by failing to ensure that state governments would abide by

our treaty obligations. Indeed, state violations of national

treaty obligations led important allies and adversaries to

refuse to both honor their reciprocal treaty obligations and

enter new commercial treaties with the United States.

In drafting the Constitution, the Framers made sure that

the federal government would have the authority to bind the

entire nation, including the individual states, to our

international obligations. Since its inception, this Court has

repeatedly reaffirmed that understanding. This Court has

regularly held that treaties duly entered by the national

government supersede conflicting state laws and bind the

States to our national commitments.

Texas's noncompliance in this case with the Vienna

Convention and its Optional Protocol offends the Framers’

constitutional vision and has created the kind of diplomatic

failures that prompted the formation of the treaty power.

Texas’s and other states’ persistent practice of ignoring the

Vienna Convention obligations has strained bilateral and

multilateral relations, and has disrupted important national

foreign policy interests by impairing the ability of diplomats

to carry Out critical initiatives with foreign governments and

international organizations. Moreover, state noncompliance

5

with our treaty obligations has caused allies and adversaries

alike to criticize the United States and to question our

longstanding leadership in international law and human

rights.

This Court's decision will affect not just the ability of the

United States to enforce the Vienna Convention, but, more

broadly, our nation’s capacity to participate effectively in a

diverse array of treaty regimes. Our executive and legislative

branches of government have regularly chosen compulsory

international adjudication as a means to protect our interests

in national security and international trade. American

diplomats have pursued and successfully secured numerous

treaties that confer jurisdiction on the ICJ and other

international dispute-settlement bodies. As American private

‘commercial interests become increasingly global, reliable

mechanisms for international dispute resolution will become

increasingly central to our nation’s foreign policy. The

‘United States cannot build or benefit from these —

mechanisms, so long as its states and localities continue to

violate ratified treaties and jeopardize our global reputation

as a dependable treaty partner.

ARGUMENT

I. THE TREATY POWER AUTHORIZES THE

PRESIDENT AND THE SENATE TO ENTER

INTO TREATY OBLIGATIONS THAT ARE

BINDING ON THE STATES AND OVERRIDE

CONFLICTING STATE LAWS

A. Numerous Diplomatic Failures Under The Articles

Of Confederation Led To The Creation Of Federal

Authority Under The Treaty Power

The Framers established the treaty power (U.S. CONST.,

art. Il, § 2, cl. 2) in response to their frustrating experience

under the Articles of Confederation.’ That experience taught

> See generally FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL,

FOREIGN APFAIRS AND THE MAKING OF THE CONSTITUTION (1973)

6

that permitting the states to impair the nation’s treaty

obligations would significantly impede the conduct of the

fledgling nation’s foreign affairs.

Under the Articles of Confederation, the Continental

Congress possessed the treaty power,” but virtually all

legislative authority rested with the states.’ This structure

left Congress nominally responsible for foreign affairs, but

ultimately dependent on the good faith of the states to carry

out those treaty obligations. See generally SAMUEL B.

CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT

19-43 (1904). This structure caused repeated failures for

Congress in its diplomatic endeavors, as the states routinely

refused to carry Out important national treaty obligations.

The most serious failure involved the Treaty of Peace

with Great Britain of 1783, which secured recognition of

both the independence of the United States of America and

the U.S. claim to expansive boundaries. Negotiated by

Benjamin Franklin, John Adams, and John Jay, the Treaty of

Peace was quickly attacked on the ground that its principal

(difficulty of obtaining state compliance with treaties motivated the

Constitutional Convention); David M. Golove, Treaty-Making and the

Nation: The Historical Foundations of the Nationalist Conception of the

Treaty Power, 98 Mich. L. Rev. 1075, 1102-49 (2000) (reviewing

history ).

* Article IX of the Articles of Confederation granted Congress sole and

exclusive power to make treaties and alliances, but subject to the

restriction “that no treaty of commerce shall be made whereby the

legislative power of the respective States shall be restrained from

imposing such imposts and duties on foreigners, as their own people are

subjected to, or from prohibiting the expropriation or importation of any

species of goods or commodities whatsoever.” ARTICLES OF

CONFEDERATION AND PERPETUAL UNION, art. IX.

_ For example, the Continental Congress had no authority to regulate

imterstate or foreygn commerce. See id. art. Il (“Each state retains its

sovereignty, freedom, and independence, and every power, jurisdiction,

and nmght, which is not by this Confederation expressly delegated to the

United States, in Congress assembled.”).

;

concessions to the British—particularly the Treaty’s

financial and amnesty provisions in Articles IV and VI—

infringed upon the authority of the states." Almost

immediately, a number of state legislatures passed laws that

violated Articles 1V and VI.” As states continued to resist

the terms of the Treaty of Peace, tensions with Great Britain

worsened—so much so that the British refused to carry out

its reciprocal obligation to withdraw troops from military

posts in the northwestern territory. CRANDALL, supra, at 40-

42. Critically, the Framers’ experience with the fractious

behavior of the states under the Treaty of Peace was repeated

in our diplomatic efforts to establish commercial relations as

other nations became openly skeptical of the trustworthiness

of the United States as a treaty partner.'”

* Article IV of the Treaty provided, inter alia, that all debts owed to

British creditors that had been extinguished under state law would be

resuscitated. Article VI provided that there would be no further

confiscations, prosecutions, or other actions taken against Loyalists and

that those Loyalists still in prison would be released. Treaty of Peace

with Great Britain, Sept. 3, 1783, 12 Bevans 8, 11-12.

* For example, in 1783, New York enacted a series of laws that patently

violated Article VI, asserting that that provision was beyond Congress's

authority and, thus, null. In response, Alexander Hamilton argued in

support of congressional authority to enter the obligations of the Treaty

of Peace:

Does not the act of confederation place the exclusive right of war and

peace in the United States in Congress? Have they not the sole power

of making treaties with foreign nations? Are not these among the first

rights of sovereignty, and does not the delegation of them to the

general confederacy, so far abridge the sovereignty of each particular

state?

Alexander Hamilton, A Letter from Phocion to the Considerate Citizens

of New York (Jan. 1-27, 1784), reprinted in 3 THE PAPERS OF

ALEXANDER HAMILTON 489 (Harold C. Syrett & Jacob E. Cooke eds.

1962).

'” Indeed, foreign skepticism about the Continental Congress’s ability to

enter binding treaties limited that body's ability to negotiate any

commercial treaties other than a limited commercial treaty with Prussia.

The ensuing diplomatic paralysis profoundly affected the

Framers’ vision of the proper scope of the treaty power.

During the Convention, Madison remarked upon the

“constant tendency in the States . . . to violate national

treaties.”'' Alexander Hamilton echoed the same concern in

The Federalist Papers."”

Golove, supra, at 1131; see clso id. (citing SAMUEL FLAGG BEMis, A

DIPLOMATIC HISTORY OF THE UNITED STATES 66 (4th ed. 1955)

(“|A]bortive negotiations with other powers, notably Austria and

Denmark, failed because the growing ineptitude and powerlessness of the

Confederation to enforce its treaties against the thirteen component states

convinced foreign nations that the Continental Congress had ceased to be

a responsible body and that the United States itself might soon cease to

be a nation.”)).

For example, in response to the American commissioners’ request to

open commercial treaty negotiations with Great Britain, the Duke of

Dorset replied:

I have been . . . instructed to learn from you, gentlemen, what is the

real nature of the powers with which you are invested,—whether you

are merely commissioned by Congress, or whether you have received

separate powers from the respective States.... [Rjepeated

experience having taught . . . how little the authority of Congress

could avail in any respect... .

| GEORGE TICKNOR CURTIS, HISTORY OF THE ORIGIN, FORMATION, AND

ADOPTION OF THE CONSTITUTION OF THE UNITED STATES 289-90 n.!

(1854) (quoting Letter from Duke of Dorset to American Commissioners

(Mar. 26, 1785)).

Likewise, Lord Sheffield contended:

No treaty can be made with the American States that can be binding

on the whole of them. The act of Confederation does not enable

Congress to form more than general treaties: at the moment of the

highest authority of Congress, the power in question was with-held by

the several States.

Golove, supra, at 1128 (quoting JOHN LORD SHEFFIELD, OBSERVATIONS

ON THE COMMERCE OF THE AMERICAN STATES 199-200 (Dublin, Luke

White 2d ed. 1784)).

. | THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 164 (Max

Farrand ed., rev. ed. 1937). Madison explained:

9

To ensure national compliance with treaties, the Framers

drafted three constitutional provisions establishing that

treaties would bind the states and supersede conflicting

provisions of state law. The Treaty Clause of the U.S.

Constitution granted the nation’s treaty power exclusively to

institutions of the federal government.'* Article 1, Section 10

further specified that that grant was exclusive, providing “No

state shall enter into any Treaty, Alliance, or Confederation,”

U.S. Const. art. I, § 10. Finally, the Supremacy Clause

declared that the Constitution, the laws of the United States

made pursuant thereto, and “all Treaties made, or which shall

be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State

shall be bound thereby ....” /d. art. VI, cl. 2.

As the text and structure of these provisions make plain,

where our nation’s foreign policy is concerned, the

Constitution does not recognize dual sovereignty. See, e.g.,

THE FEDERALIST No. 42 (James Madison). In Madison's

famous words, “If we are to be one nation in any respect, it

clearly ought to be in respect to other nations.” /d. When

treaties are at issue, the states disappear and the President

The tendency of the States to [treaty] violations has been manifested

in sundry instances. The files of Congs. contain complaints already,

from almost every nation with which treaties have been formed. . . .

A rupture with other powers is among the greatest of national

calamities. It ought therefore to be effectually provided that no part

of a nation shall have in its power to bring them on the whole.

Id. at 316.

'2 Due to the states’ repeated violations of treaty obligations, Hamilton

noted, “[t}he faith, the reputation, the peace of the whole Union are . . .

continually at the mercy of the prejudices, the passions, and the interests

of every member of which it is composed.” THE FEDERALIST No. 22

(Alexander Hamilton).

'3 The President shall have the “Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two thirds of the

Senators present concur.” U.S. CONST. art. Il, § 2, cl. 2.

10

and Senate act, in the words of the Supremacy Clause, with

the sole “Authority of the United States.”"*

Further confirmation of the broad treaty power that the

Framers established in order to bind states comes from one

of the first treaties ratified by the new American government:

a Consular Convention with France, a bilateral precursor to

the modern-day Vienna Convention on Consular Relations.'°

That treaty, ratified by the first Senate in 1789, extended

foreign consular officials extensive immunities from the

operation of state laws, ceded consuls jurisdiction to

administer estates of deceased French nationals, and opened

the state courts to French nationals. In ratifying the treaty,

the Serfate had no doubt of its authority to bind the states and

to supersede state laws in areas that otherwise fell within the

legislative province of the states. See generally Golove,

supra, at 1149-50 & nn. 223, 225.

B. This Court Has Consistently Recognized That

States Must Comply With Our Treaty Obligations

To Maintain U.S. International Credibility And

To Avoid Diplomatic Failures

Since its inception, this Court has ensured that our nation

upholds its binding international obligations,

notwithstanding contrary internal laws and policies of the

individual states. Less than a decade after the Constitution

took effect, this Court first invoked its authority to enforce

the provisions of federal treaties and affirmed the Framers’

vision that the national treaty authority supersedes any

'* While the Constitution does sot place substantive restrictions in favor

of the states on the exercise of the treaty power, the Constitution does

provide for the protection of the states’ interest through the Senate's role

in the ratification process. See generally THE FEDERALIST No. 64 (John

Jay) (discussing the Senate's role in protecting the interests of the states

“[a]s all the States are equally represented”).

‘> See Convention Defining and Establishing the Functions and

Privileges of Consuls and Vice Consuls, Nov. 14, 1788, U.S.-France, 8

Stat. 106, 7 Bevans 794.

iT

inconsistent or conflicting state laws: In Ware v. Hylton, this-

Court held that, pursuant to the Supremacy Clause, Article

IV of the Treaty of Peace—which ensured British creditors

that they would “meet with no lawful impediment to the

recovery” of debts—nullified a conflicting Virginia statute

that permitted such debts to be discharged. 3 U.S. (3 Dall.)

199, 235, 239 (1796)."°

Subsequently, this Court has consistently enforced treaty

rights, making clear the fundamental principle that treaties

are supreme over inconsistent state law.'’ In United States v.

Pink, in which this Court held that a policy of the State of

New York could not override national obligations

established in an agreement between the United States and

the Soviet Union, the Court declared: “No State can rewrite

‘our foreign policy to conform to its own domestic policies.

Power over external affairs is not shared by the States; it is

vested in the national government exclusively.” 315 U.S.

203, 233 (1942)."" And in United States v. Belmont, the —

Court made clear that “[i]n respect of all international

negotiations and compacts, and in respect of our foreign

'© As the Court explained, “[a] treaty cannot be the supreme law of the

land, that is of all the United States, if any act of a State Legislature [or

constitution or court] can stand in its way.” /d. at 236.

'” See, e.g., Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) (stating

that “[a treaty] will be applied and given authoritative effect by the

courts” and holding that a city ordinance was unenforceable because it

violated a treaty between the United States and Japan); Hauenstein v.

Lynham, 100 U.S. 483 (1879) (holding that a treaty between the United

States and the Swiss Confederation superseded inconsistent state law).

'* As this Court explained, “{S}tate law must yield when it is inconsistent

with, or impairs the policies or provisions of, a treaty or of an

international compact or agreement. . . . [The treaty power] need not be

so exercised as to conform to state laws or state policies, whether they be

expressed in constitutions, statutes, or judicial decrees. And the policies

of the States become wholly irrelevant to judicial inquiry when the

United States, acting within its constitutional sphere, seeks enforcement

of its foreign policies in the courts.” /d. at 230-31, 233-34,

12

relations generally, state lines disappear.” 301 U.S. 324,

331 (1937) (emphasis added).'”

Likewise, this Court has consistently recognized that the

constitutional vesting of full authority over foreign affairs in

the federal government benefits our country by enabling us

more effectively both to engage in relations with other

nations and to protect the interests of our citizens.”” As this

Court put it in Crosby v. National Foreign Trade Council,

effective diplomacy is best served when the federal

government alone speaks for the entire United States on

foreign matters: “Quite simply, if the [state] law is

enforceable the President has less to offer and less economic

diplomatic leverage as a consequence.” 530 U.S. 363, 377

(2000).7!

Taken together, these constitutional principles and

precedents firmly establish the federal government’s sole

” See also id. (“|Cjomplete power over international affairs is in the

national government and is not and cannot be subject to any curtailment

or interference on the part of the several states.”); cf. Missouri vy.

Holland, 252 U.S. 416, 434 (1920) (holding that the treaty power is not

subject to “some invisible radiation from the general terms of the Tenth

Amendment”).

= See, e.g., Pink, 315 U.S. at 232 (“If state action could defeat or alter

our foreign policy, serious consequences might ensue. The nation as a

whole would be held to answer if a State created difficulties with a

foreign power.”); Belmont, 301 U.S. at 331 (relying on Madison’s

statement during the constitutional debates that “|t}o counteract [a treaty]

by the supremacy of the state laws, would bring on the Union the just

charge of national perfidy, and involve us in war”).

1 inc rosby, this Court faced a Massachusetts law that threatened to

invite World Trade Organization (WTO) enforcement action by the

European Communities. While “express[ing] no opinion on the merits of

[those] proceedings,” the Court struck down the offensive state law, at

least partly because an adverse WTO complaint against the United States

would serve to “embroil the National Government . . . in international

dispute proceedings” and “threaten|| relations with the United States.”

Id. at 383 & n.19.

13

authority to bind the entire nation to treaty obligations to

achieve national foreign policy interests. Yet, in this case,

the Fifth Circuit ignored those national obligations out of

deference to local state concerns, precisely the result that the

Framers drafted the treaty clauses to avoid.”

Il. FAILURE TO ADHERE TO THE ICJ’S FINAL

JUDGMENT IN AVENA WOULD UNDERMINE

U.S. DIPLOMATIC CREDIBILITY

The Vienna Convention and its Optional Protocol are

precisely the kind of treaties that the Framers had in mind

when they rendered treaties supreme over inconsistent state

law.’ Texas’s noncompliance with the ICJ’s ruling in

Avena defies the authority of the federal government to bind

the states to international obligations. Amici believe that, if

left unchecked, the persistent failure of Texas and other

states of the Union to comply with Avena will surely alienate

this nation from its allies. Likewise, Amici believe that the

refusal of state and federal courts (such as the Fifth Circuit

here) to provide the “review and reconsideration” required

by the ICJ’s judgment wili undermine America’s credibility

as a global leader, and seriously hinder foreign policy

objectives at a critical time in our nation’s history.

The United States has long declared that the right to

consular access guaranteed by the Vienna Convention and its

Optional Protocol is “widely accepted as the standard of

2 Although recognizing that the ICJ’s decision in Avena in 2004 held

that “procedural default rules cannot bar review of a petitioner's claim,”

the Fifth Circuit nevertheless deferred to Texas’s procedural default rule

and denied Petitioner’s application for a certificate of appealability, on

the basis that the Supreme Court’s earlier opinion denying review in

Breard v. Greene, 523 U.S. 371, 375 (1998), reasoned “that ordinary

procedural rules can bar Vienna Convention claims.” Medellin v. Dretke,

371 F.3d 270, 279-80 (Sth Cir. 2004).

23 See generally Brief of Amici Curiae International Law Experts

(discussing the difficulties enforcing previous treaty regimes on consular

assistance that lack binding dispute-resolution mechanisms).

14

international practice of civilized nations.” Through its

diplomats, our government routinely calls on such nations as

Irag, Syria, China, and North Korea to abide by this minimal

standard when U.S. citizens are detained abroad.”> Over two

decades ago, when Iran flagrantly violated the Vienna

Convention by taking U.S. diplomats hostage in Tehran, then

flouted its obligation under the Optional Protocol to comply

with the ICJ’s order to release the hostages, then-President

Carter accused Iran of showing “‘contempt, not only for

international law, but for the entire international structure for

securing the peaceful resolution of differences among

nations." The United States led an effort to convince

*4 Victor M. Uribe, Consuls at Work: Universal Instruments of Human

Rights and Consular Protection in the Context of Criminal Justice, \9

Hous. J. INT'L L. 375, 385 (1997) (quoting telegram sent from U.S.

Department of State to its Embassy in Damascus on February 21, 1975).

*’ Transcript of State Dep't Regular Briefing, FED. NEWS SERV., July 15,

1999 (James Rubin, State Dep't spokesman, commenting on detention of

U.S. female citizen: “We remind the government of North Korea of its

obligations under the Interim Consular Agreement of 1994 and the

Vienna Convention on Consular Relations to permit consular access to

detained U.S. citizens.”); Transcript of State Dep't Regular Briefing,

FED. News SERV., Aug, 19, 1999 (James Rubin, State Dep't spokesman,

reporting on request for access and immediate grant of access to U.S.

citizen detained in China); Associated Press, /ragis Refuse Access to

Americans for Second Day, Apr. 19, 1995 (quoting State Department

spokesman: “Obviously, we are extremely disappointed that the Iraqi

government has reneged on its promise to allow these weekly visits.

We're disappointed because that is their legal obligation under the

Vienna convention.”); S. Adele Shank & John Quigley, Foreigners on

Texas's Death Row and the Right of Access to a Consul, 26 ST. MARY'S

L.J. 719, 729 (1995) (quoting Consular Officers and Consulates, 1977

Digest § 2, at 290) (U.S. protest of delay in notification of detention of

U.S. missionaries in El Salvador); see also LUKE T. LEE, CONSULAR

LAW AND PRACTICE, 145-46 (2d ed. 1991) (documenting U.S. invocation

of the Vienna Convention).

= Philippe Sands, An Execution Heard Around the World, L.A. TIMES,

Apr. 16, 1998, at B9 (quoting President Carter's comments during the

Iranian hostage crisis).

15

nations throughout the world to confer compulsory

jurisdiction on the ICJ precisely because it was dissatisfied

with diplomatic overtures alone as the sole mechanism for

enforcing the Vienna Convention.”’

Today, our closest allies now accuse the United States of

showing that same disregard for the Vienna Convention and

the ICJ. Nations such as the United Kingdom, Mexico,

Canada, Spain, Paraguay, Germany, and Italy have

repeatedly objected to the U.S. practice of executing

nationals of these countries after state and local violations of

the Vienna Convention. Through numerous calls, meetings,

and letters to both state and federal authorities, our allies

have strenuously requested review and reconsideration of the

convictions and sentences of their citizens, in compliance

with the Vienna Convention and earlier provisional orders of

the ICJ.* Perhaps in no other area of our foreign policy

>” See Brief of Amici Curiae Ambassador L. Bruce Laingen and Capt.

John J. Swift, et al., at 6-16; see also United Nations Conference on

Consular Relations Official Records, \st Comm., 29th mtg., 44 36, 54,

U.N. Doc. A/CONF.25/16 (1963) [Official Records); id. at Plenary mtg,

2Ist mtg., 99 17-20; VIENNA CONVENTION ON CONSULAR RELATIONS,

SEN. EXEC. REP. 91-9, at 19 (1969) (statement of J. Edward Lyerly,

Deputy Legal Adviser for Administration of the State Dep't).

- See, e.g., Ginger Thompson, An Execution in Texas Strains Ties with

Mexico and Others, N.Y. TIMES, Aug. 16, 2002, at A6 (citing call from

Presidént Fox of Mexico); Jonathan Tepperman, Faulder: The Long-

Term View, NAT’L Post (Toronto), Dec. 11, 1998 (documenting efforts

by Canadian Foreign Affairs Minister and Ambassador on behalf of

Canadian citizen); Laura LaFay, World Court—U-.S. to Halt Execution,

VIRGINIAN-PILOT, Apr. 10, 1998, at Al (describing protests by Mother

Teresa, Pope John Paul II, and Italian government to execution of Italian

citizen); Somini Sengupta, Appeal in Murder Cites International Treaty,

N.Y. TIMES, Dec. 23, 1997, at BS (letter from Ecuadorean Consul

General); David Schwartz, Plan to Execute German Killers Attracts

Scrutiny, DALLAS MORNING NEws, Feb. 22, 1999, at Al (describing

efforts by then-German President Herzog, Chancellor Schroeder, Foreign

Minister Fischer, and Ambassador Chrobog requesting support for

clemency from President Clinton and Arizona Governor Hull); see also

Rodrigo Labardini, /nternational Court of Justice Finds U.S. Breached

16

have Amici so consistently heard foreign heads of state,

foreign ministers, and foreign ambassadors pleading for the

enforcement of U.S. treaty obligations.

Indeed, officials of our closest neighbors, Canada and

Mexico, have openly declared that the failure of American

state authorities to provide their nationals with timely

consular access has “strain{ed]” bilateral relations.” For

example, in 2002, long before the ICJ issued its final

judgment in Avena, Mexican President Vicente Fox took the

extraordinary step of canceling a trip to President Bush’s

Texas ranch as “‘an unequivocal signal of rejection of the

execution’” of a Mexican national who had not been

informed of his consular rights.”

International and regional human rights bodies have

echoed the protests of foreign governments. The Inter-

American Commission on Human Rights, the European

Parliament, and the U.N. High Commissioner for Human

Rights have each strongly criticized U.S. violations of the

its Obligations Under the Vienna Convention on Consular Relations, 20

INT'L ENFORCEMENT L. REP. 250, 251 n.8 (June 2004) (documenting six

letters the government of Mexico sent to the United States regarding the

execution of Irineo Tristan Montoya by Texas in 1997). Unlike these

earlier cases, the Fifth Circuit's ruling under review ignores a final

judgment of the International Court that has “binding force” with respect

to the parties. See supra note 4.

**Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire, N.Y.

TIMES, Oct. 26, 2000, at A20 (quoting Jorge G. Castaneda, foreign policy

advisor to Mexican President Fox); Colin Nickerson, Canadians Protest

a Texas Execution; Inmate Set to Die Today for 1975 Killing, BOSTON

GLoBE, Dec. 10, 1998, at A2 (describing statements by Canadian

government officials responding to execution of Canadian citizen Stanley

Faulder who had been denied consular rights).

” Brian Knowlton, Execution Pits Mexico Against U.S.; Fox Echoes

World on the Death Penalty, INT'L HERALD TRIB., Aug. 16, 2002, at |

(quoting President Fox's representative).

17

Vienna Convention.*' The European Union has lodged

numerous official demarches with state authorities

requesting reconsideration of pending executions because of

violations of the Vienna Convention.”

The widespread international opposition to the states’

persistent practice of violating the Vienna Convention and

refusing to abide by the decisions of the ICJ under the

Optional Protocol has harmed our position as a human rights

leader.’ Our authority in several important international

*" See, e.g., Ram6n Martinez Villareal v. United States, Case 11.753,

Report No. 52/02, Inter-Am. C.H.R., $4 69-70 (2002) (describing

notification of right to consular assistance as “among the minimum

guarantees essential for foreign nationals also to adequately prepare their

defense and receive a fair trial” and failure to notify of such rights

violated Mexican national’s right to due process); Resol. On the Death

Sentence Handed Down on Greg Summers in Texas, USA, B4-0188/99,

1999 O.J. (C 150) 383-84 (passing resolution condemning persistent U.S.

failure to notify foreign nationals of rights to consular access and noting

“demonstrably extremely poor quality” of defense counsel in case of two

German brothers on death row who had not had consular assistance);

Kevin Sullivan, Mexico Challenges U.S. on Death Penalty Cases, WASH.

Post, Jan. 10, 2003, at A1l7 (citing concerns expressed by U.N. High

Commissioner for Human Rights regarding the execution of Javier

Suarez Media, a Mexican citizen, because of the denial of his rights

under the Vienna Convention by the state of Texas); Dana Priest & John

M. Goshko, Genocide Warning Center Established; Clinton Human

Rights Initiatives Include Changes at INS, WASH. Post, Dec. 11, 1998,

at AS2 (referring to speech by U.N. High Commissioner for Human

Rights before U.N. General Assembly, criticizing the execution of Joseph

Stanley Faulder, a Canadian citizen, because of the denial of his rights

under the Vienna Convention by the state of Texas).

** Demarches by the European Union have been filed in a number of

cases, including: (1) Joseph Stanley Faulder, Canada, Dec. 8, 1998;

(2) Miguel Angel Flores, Mexico, Nov. 3, 2000; (3) Hung Thanh Le,

Vietnam, Dec. 4, 2003; (4) Gregory Madej, Poland, May 1, 2001;

(5) Javier Suarez Medina, Mexico, July 23, 2002; (6) Osvaldo Torres,

Mexico, Apr. 306 and May 6, 2004; (7) Gerardo Valdez Maltos, Mexico,

June 5 and July 13, 2001.

3S ce, e.g., Amnesty International, The Execution of Angel Breard:

Apologies Are Not Enough, at hitp://web.amnesty.org/library/Index/

18

human rights bodies has been impaired.’ —_ International

disapproval of our noncompliance with the Vienna

Convention has also deflected attention away from serious

human rights abuses in other countries and has provided our

adversaries with diplomatic ammunition to raise doubts

about the sincerity of our commitment to human rights.

State violations of the Vienna Convention have also

called into question our commitment to the rule of law in

international relations.” For example, when the German

engAMR510271998 (May |, 1998) (quoting Paraguayan Deputy Foreign

Minister Rachid: “[T]here is not an international summit at which they

[the U.S. government] do not preach the preservation of human rights. . .

. [T]he United States has been the champion of democracy . . . let them

be the first one to demonstrate to us the principles of democracy; let them

also respect human rights.”); George Boehmer, Killer Loses Fight for

Life, DAILY TEL. (Sydney, Australia), Mar. 4, 1999, at 25 (quoting the

German parliament's Human Rights Committee Chairman Roth’s

reaction to the LaGrand execution: “When (Secretary of State Madeleine)

Albright talks of human rights, for example in China, she must prove her

credibility by also taking human rights in the United States seriously.”).

“ Shortly after the execution of two German nationals denied their

Vienna Convention rights despite a provisional order of the ICJ, the

United States was voted off the U.N. Commission on Human Rights in

2001 for the first time in that body’s 54-year history. Barbara Crossette,

For First Time, U.S. ls Excluded from U.N. Human Rights Panel, N.Y.

TIMES, May 4, 2001, at Al. The United States likewise failed to win a

seat on the Inter-American Commission on Human Rights for the first

time since that body's inception in 1959, and its observer status in the

Council of Europe—which bans executions—has been put in jeopardy.

Connie de la Vega, Going It Alone, AM. PROSPECT, July, 2004, at A22.

> See, e.g., Raymond Bonner, Mexican Killer is Refused Clemency by

Oklahoma, N.Y. Times, July 21, 2001, at A8 (quoting Mexican

government as declaring that execution of Mexican national denied

Vienna Convention rights as “contrary to international law and the

elemental principles of cooperation between nations”); Roger Cohen,

U.S. Execution of German Stirs Anger, N.Y. TIMES, Mar. 5, 1999, at 14

(quoting German Justice Minister, declaring that the execution of two

German nationals whose Vienna Convention rights had been violated by

state officials “is barbaric and unworthy of a [nation] based on the rule of

law”); David Stout, Do as We Say, Not as We Do: U.S. Executions Draw

19

Justice Minister announced Germany's suit against the

United States in the ICJ to challenge the execution of two

German nationals who were denied consular rights, she

declared: “Respecting international laws cannot be a one-

way street.””* When the United States seeks to promote the

rule of law around the world, other nations will surely

demand that we first comply strictly with our own binding

obligations under the U.N. Charter, the ICJ statute, and the

Vienna Convention and its Optional Protocol. This is

particularly so given that the United States not only

spearheaded the effort to create the Optional Protocol to the

Vienna Convention, but engaged in energetic diplomacy to

convince other nations to adopt it.””

Taken together, the continued noncompliance with our

obligations under the Vienna Convention and Optional

Protocol has significantly hindered the ability of Amici and

other diplomats to carry out foreign policy initiatives. In

Amici’s experience, an inordinate proportion of important

bilateral and multilateral meetings with our closest allies are

now consumed with answering diplomatic demarches

challenging these practices, diverting attention away from

our core national foreign policy interests.

Our diplomatic efforts overseas have also been impeded

by the public hostility stirred by the U.S. practice of

executing foreign nationals who have been denied their

Vienna Convention rights. The practice has led to persistent

criticism in the press and angry demonstrations in front of

Scorn from Abroad, N.Y. TIMES, Apr. 26, 1998, § 4 (Week in Review),

at 4 (quoting Honduran newspaper upon execution of Honduran national

denied rights under the Vienna Convention: “The most powerful country

in the world, which claims to be a stickler for justice and legal rectitude,

a eee ©

© See Germany Sues U.S. for Breaking Law, REUTERS, Sept. 16, 1999,

penne ea ub.es/penal/historia/Pde M/dpicintl.htm.

*” Official Records, supra note 27, Ist Comm., 29th mig., {4 46, 54; id.,

at Plenary mtg, 21st mtg., 44 17-20.

20

U.S. embassies abroad. Such protests have not only

seriously disrupted important diplomatic missions, but have

even threatened the physical safety of our U.S. diplomats and

embassy staff trying to work in these countries.”

* See Knowlton, supra note 30 (documenting intense media attention in

Mexico); Nickerson, supra note 29 (describing execution of Stanley

Faulder as a “cause celebre . . . dominating front pages and television

newscasts” in Canada); Stout, supra note 35 (citing protest in front of

U.S. embassy in Paraguay); Paraguay Angered by US Execution, BBC

News, Apr. 15, 1998, available at http://news.bbc.co.uk/1/hi/world/

americas/78602.stm (documenting public outcry and inundation of radio

channels in Paraguay with angry calls); Adam E. Jacobs & Mark A.

Berman. Rediscovering the Right to Consul, NEw Jersey L.J., Mar. 2,

1998, at 32 (describing demonstration in front of U.S. Consulate in

Ecuador): Texas Executes a Mexican Killer, Raising a Furor Across the

Border, N.Y. TIMES, Mar. 26, 1993, at A1S (describing street protests).

After Arizona executed Jose Roberto Villafuerte, a Honduran national,

500 Hondurans protested at the U.S. Embassy in Tegucigalpa, and

Hoénduran newspapers reported retaliatory threats against the lives of

U.S. citizens in Honduran prisons. Nicaragua Solidarity Network of

Greater New York, Hondurans Protest Execution in the U.S., WEEKLY

NEWS UPDATE ON THE AMERICAS, Apr. 26, 1998, available at http://

www.tulane.edu/~libweb/RESTRICTED/W EEKL Y/1998_0426.txt. — In

1999. to protest the execution of a Canadian who had been denied his

rights under the Vienna Convention, local activists planned

demonstrations and other organized protests, including letter-writing

campaigns and threatened economic boycotts. UN. Official Frets Over

Canadian's Texas Execution; Ottawa Steps Up Bid to Spare Albertan

Convicted of Murder, TORONTO STAR, Nov. 26, 1998, at A9; Texas

Embroiled in International Legal Rights Dispute Over Preparations to

Execute a Canadian Citizen (NPR Morning Edition broadcast, Dec. 9,

1998).

* During public demonstrations in front of the U.S. embassy in Honduras

to protest the execution of a Honduran who had not been given timely

access to the consular officials, more than 4,000 U.S. personnel,

including diplomatic staff, had to be protected by armed security. See

US. Boosts Security in Honduras as Tempers Flare, REUTERS, Apr. 24,

1998: Stout, supra note 35. After the execution of Tristan Montoya, a

Mexican who had been denied his rights under the Vienna Convention,

Mexicans issued death threats and U.S. tourists were given warnings to

stay out of certain areas. Armando Villafranca, Life and Death Chasm,

Hous. CHRON., Sept. 28, 1997, at Al.

—_——

21

Indeed, the Secretary of State has written to state

governors commenting on the disruption of foreign policy

because of the persistent state practice of failing to provide

consular notice. Most notably, in 1998, Secretary of State

Madeleine Albright (a signatory to this brief, see supra

note 3) wrote to the Governor of Virginia with regard to

Angel Francisco Breard, a Paraguayan national for whom the

ICJ granted a nonfinal provisional measure directing the

United States to stay his execution because Virginia officials

had ignored his Vienna Convention rights.’ In requesting

that the Governor exercise his powers to stay Breard’s

execution, Secretary Albright explained that she was

“particularly concerned about the possible negative

consequences” of the execution for the many American

citizens whe live and travel abroad.*' “The execution of Mr.

Breard in che present circumstances,” she observed, “could

lead some countries to contend incorrectly that the U.S. does

not take seriously its obligations under the Convention” and

“could be seen as a denial by the United States of the

significance of international law and the Court’s processes in

its international relations and thereby limit our ability to

ensure a Americans are protected when living or traveling

Amici fear that this Court’s affirmance of the Fifth

Circuit’s rejection of the Avena judgment would inevitably

impair diplomatic relations with our closest allies and

promote distrust of our international commitments. In an

age where global cooperation is crucial to our nation’s

security, we cannot afford to allow the several states to

” Letter from Madeleine K. Albright, U.S. Secretary of State, to James

S. Gilmore III, Governor of Virginia (Apr. 13, 1998), quoted in Jonathan

I. Charney & W. Michael Reisman, Agora: Breard, 92 Am. J. INT'L L.

666, 671-72 (1998).

"Id

° Id.

22

exercise a veto over our national obligations and interests

under the Vienna Convention and its Optional Protocol.”

IL.FAILURE TO ADHERE TO THE AVENA

JUDGMENT WOULD ALSO DAMAGE FOREIGN

POLICY INTERESTS GOVERNED BY OTHER

TREATY REGIMES

The ICJ dispute-settlement provisions in the Vienna

Convention's Optional Protocol are not sui generis. For that

reason, the diplomatic fallout from America’s perceived lack

of respect for the ICJ and the Vienna Convention cannot be

limited to just those settings. Amici submit that the failure of

the United States to comply with the ICJ’s decision in Avena

would damage a number of existing treaty regimes that

ensure the security of our citizens and safeguard our

commercial interests, as well as undermine the United

States’ ability to negotiate new diplomatic covenants.

Because “interna nal law is founded upon mutuality and

reciprocity,” Hilton v. Guyot, 159 U.S. 113, 228 (1895), the

creation and operation of international dispute-resolution

regimes depends largely upon every signatory’s good-faith

compliance with decisions by these judicial bodies.

After World War Il, when international trust and

diplomacy were at a low ebb, the United States moved to

establish numerous treaties with its former enemies that

** Certainly, these concems are of no less importance today than they

have been in the past. As Secretary of State designee Condoleezza Rice

stated at her confirmation hearing on January 18, 2005: “The United

States will . . . continue to work to support and uphold the_system of

imternational rules and treaties that allow us to take advantage of our

freedom, to build our economies and to keep us safe and secure.”

Transcript’ Confirmation Hearing of Condoleezza Rice, N.Y. TIMES,

Jan. 18, 2005, at http://www.nytimes.com/2005/01/18/politics/1 8STEXT-

RICE.himl; id. (“We must use American diplomacy to help create a

balance of power in the world that favors freedom. The time for

diplomacy is now.”).

23

resolved disputes through binding decisions of the ICJ.“

This diplomatic strategy of asking friends and foes alike to

submit their disputes to binding international dispute-

resolution bodies persists to the present day.

In return for our commitment to abide by ICJ judgments,

the United States gains not only the cooperation of other

states, but also a powerful diplomatic tool for encouraging

non-judicial resolution of disputes. Indeed, “[mJany cases

are settled before a final judgment is reached,” giving the ICJ

“an important ‘pacifying effect’ on disputes at all stages of

litigation.” Colter Paulson, Compliance with Final

Judgments of the International Court of Justice Since 1987,

98 Am. J. INT’L L. 434, 436 (2004). Even nations with

longstanding histories of extreme hostility toward one

another have reached agreement on serious diplomatic

disputes after referral (or threat of referral) to the ICJ.*° This

occurred, for example, after the United States inadvertently

-downed an Iranian civilian airliner, killing’ 290 passengers

and crew. Despite our strained diplomatic relations, Iran

sought a peaceful solution by bringing suit before the ICJ,

and the parties ultimately were able to negotiate a

settlement.

The “mutuality and reciprocity” that forms the

foundation of international relations is particularly critical

for the effective operation of our ration’s commercial and

See, e.g., Treaty of Friendship, Commerce and Navigation, Feb. 2,

1948, U.S.-Italy, art. XXVI, 63 Stat. 2255, 2294, 79 U.N.T.S. 171, 212;

Treaty of Friendship, Commerce and Navigation, Oct. 29, 1954, U.S.-

F.R.G., art. XXVII, 7 U.S.T. 1839, 1867, 273 U.N.T.S. 3, 36; Treaty of

Peace with Japan, Sept. 8, 1951, art. 22, 3 U.S.T. 3169, 3188-89, 136

U.N.T.S. 45, 72.

> See, e.g., Trial of Pakistani Prisoners of War (Pak. v. India), 1973

L.C.J. 328 (July 13), and 1973 L.C.J. 347 (Dec. 15) (dispute settled out of

court).

* Aerial Incident of 3 July 1988 (Iran v. U.S.), 1989 LCJ. 132 (Dec.

13), and 1996 L.C.J. 9 (Feb. 22).

24

economic treaties. International trade agreements have

always been a major component of U.S. diplomatic relations

with other nations, but the last half of the twentieth century

has witnessed the direct application of such agreements to

commercial relationships between individuals and nations.*’

Critically, a vast array of agreements dealing with

international trade and foreign investment now call for

binding arbitration or resort to permanent international

tribunals to resolve intractable disputes. Affirmance of the

Fifth Circuit in this case might seriously impede the ability

of our nation and its citizens to rely upon the international

arbitration arrangements in these commercial treaties.

Many important economic treaties vest compulsory

jurisdiction before the ICJ, including international sovereign

disputes ranging from the international recognition of

copyrights” and patents” to the transport of goods by air.”

The United States has also agreed to submit to the

jurisdiction of other binding arbitration mechanisms to

protect U.S. trade and investment interests. Of most recent

significance to commercial interests is Chapter 11 of the

North American Free Trade Agreement (NAFTA),”' and the

Understanding on Rules and Procedures Governing the

Settlement of Disputes (DSU) of the World Trade

*” See, e.g., Republic of Austria v. Altmann, 541 U.S. 677 (2004) (finding

no sovereign immunity bar to suit by individual against sovereign nation

regarding expropriation of private property).

** Universal Copyright Convention, opened for signature Sept. 6, 1952,

art. XV, 6 U.S.T. 2731, 2743, 216 U.N.T.S. 132, 146.

* Patent Cooperation Treaty, opened for signature June 19, 1970, art. 59,

28 U.S.T. 7645, 7708, 1160 U.N.T.S. 231, 262.

® International Air Transport Agreement, opened for signature Dec. 7

1944, art. IV, sec. 3, 3 Bevans 922, 925, 84 U.N.T.S. 389, 394; see also

Convention on International Civil Aviation, opened for signature Dec. 7,

1944, chp. XVIII, art. 84, 3 Bevans 944, 966, 15 U.N.T.S. 295, 352.

*! North American Free Trade Agreement, chp. 11, Sept. 6, 1992, 32

L.L.M. 605, 639 (1993).

-<

25

Organization (WTO). Together, NAFTA and the WTO

grant private interests and sovereign nations, respectively,

compulsory resort to binding arbitral tribunals.

The benefits stemming from these treaties and their

binding dispute-resolution mechanisms are not illusory.

Since 1996, American investors have initiated arbitral

proceedings under NAFTA against the government of

Canada eight times, and against the government of Mexico

twelve times, with at least five of those cases resulting in

compensation for the American investors, while six of the

cases remain pending.” Similarly, 74 of the 324 disputes

that have been initiated before WTO tribunals were brought

by the United States as a complainant.’ However, an

*? In the DSU, WTO members agree to submit to binding arbitration of

certain trade disputes, and are under an obligation “to have recourse to

and abide by the rules and procedures” of the DSU. Understanding on

Rules and Procedures Governing the Settlement of Dispute, entered into

force Jan. 1, 1995, art. 23(1), in Final Act Embodying the Results of the

Uruguay Round of Multilaterai Trade Negotiations, Marrakesh, Apr. 15,

1994, 33 LL.M. 1125, 1241 (1994).

*? For a list of past and pending NAFTA Chapter Eleven cases, see

NAFTA Investor-State Arbitrations, U.S. Department of State Website,

at http://www.state.gov/s/l/c3439.htm (last visited Jan. 10, 2005), and

NAFTA-Chapter | 1-Investment, Canada Department of Foreign Affairs

and International Trade Website, at http://www.dfait-maeci.gc.ca/tna-

nac/NAFTA-en.asp (last updated Jan. 22, 2004).

See also Dep't of Transportation v. Public Citizen, 124 §S. Ct. 2204,

2211 (2004) (recognizing U.S. adherence to the decision of a NAFTA

arbitration panel); Canada v. §.D. Myers, Inc., 2004 Fed. C.C. LEXIS 20,

at *15, *16 (Fed. Ct. Jan. 13, 2004) (affording a “high level of deference”

to a NAFTA Tribunal in affirming a $7 million award to an American

investor against the Canadian government, “so as to be sensitive to the

need of a system for predictability in the resolution of disputes”).

” See, e.g., European Communities—Regime for the Importation, Sale

and Distribution of Bananas, WTO Doc. Series WT/DS27, and

European Communities—Measures Concerning Meat and Meat Products

(Hormones), WTO Doc. Series WT/DS26 & WT/DS48. For a list of past

and pending DSU cases, see http://www.wto.org/english/tratop_e/

dispu_e/dispu_status_e.htm (last updated Jan. 10, 2005).

26

unwillingness to honor our treaty commitments in this case

would jeopardize the very scheme of international judicial

protection our nation is increasingly using to safeguard our

individual and national economic interests.

In sum, Amici submit that the continuing ability of the

United States to secure international treaty regimes that are

critical to the realization of our national interests throughout

the world, and to secure reliable enforcement of those

regimes already in place, depends directly upon our

reputation for honoring the international obligations that we

undertake. Amici believe that the practice of some of the

several states in ignoring our obligations under the Vienna

Convention and Optional Protocol presents a serious

problem in this regard—one to which this Court should put

on ona *

CONCLUSION

For the foregoing reasons, Amici urge the Court to

reverse the decision below.

* In doing so, this Court will also help ensure that the Vienna

Convention is consistently interpreted and uniformly applied by all

signatories—which is one of the principle goals of nations in entering

treaties in the first place. See also Transcript: A Conversation on the

Relevance of Foreign Law for American Constitutional Adjudication

with U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer, Jan

13, 2005, at American University School of Law, available at http://

wcl american.edu/secle/founders/2005/050113.cfm (Justice Scalia

stating, “[T]he object of a treaty being to come up with a text that is the

same for all the countries, [the U.S. courts] should defer to the views of

other signatories, much as we defer to the views of the agencies—that is

to say, if it’s within the ballpark, if it’s a reasonable interpretation,

though not necessarily the very best.”’).

DONALD B. AYER

WILLIAM K. SHIREY II

CHARLES T. KOTUBY, JR.

JENNIFER L. SWIZE

JONES DAY

51 Louisiana Ave., NW

Washington, D.C. 20001

(202) 879-3939

January 24, 2005

27

Respectfully submitted,

HAROLD HONGJU KOH

(Counsel of Record)

MARY J. HAHN

ALLARD K. LOWENSTEIN

INTERNATIONAL HUMAN

RIGHTS CLINIC

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06510

(203) 432-1660

Counsel for Amici

APPENDIX - LIST OF AMICI

Madeleine K. Albright served as U.S. Secretary of State

from 1997-2001 and as Permanent Representative to the

United Nations from 1993 to 1997.

Stephen W. Bosworth is Dean of the Fletcher School of

Law and Diplomacy at Tufts University. During his

diplomatic career, he served as U.S. Ambassador to the

Republic of Korea, U.S. Ambassador to the Philippines,

U.S. Ambassador to Tunisia, Director of the State

Department Policy Planning Staff, Principal Deputy

Assistant Secretary for Inter-American Affairs, and

Deputy Assistant Secretary for Economic Affairs. He has

also served as Executive Director of the Korean

Peninsula Energy Development Organization (KEDO)

and President of the United States-Japan Foundation.

Jeffrey Davidow is the president of the Institute of the

Americas at the University of California, San Diego. He

served as U.S. Ambassador to Mexico from 1998 to

2002, under both President Clinton and President Bush,

and as U.S. Ambassador to Zambia (1988-1990), and

Venezuela (1993-1996). From 1996 to 1998, he was

assistant Secretary of State for Inter-American Affairs.

After 34 years in the State Department, he retired with

the personal rank of Career Ambassador.

Herbert J. Hansell served as the Legal Adviser of the U.S.

Department of State from 1977 to 1979, Member of the

Permanent Court of Arbitration, The Hague, frorm 1978-_ -

1980, and Senior Adviser and Ambassador to the

Mideast Peace Negotiations in 1980. He served as

Adviser to the United States Trade Representative on

international investment in 1980, and as Adviser to the

American Law Institute Restatement of the Foreign

Relations Law of the United States. He is also Retired

Partner at the law firm of Jones Day.

2a

James R. Jones is a partner with Manatt, Phelps and Phillips

LLC, and National Chairman of the World Affairs

Council of America. From 1973 to 1987, he was a

member of the U.S. House of Representatives from

Oklahoma. During his tenure in Congress, he was

Chairman of the House Budget Committee and a ranking

member of the Ways and Means Committee. From 1989

to 1993, he was Chairman and Chief Executive Officer

of the American Stock Exchange. He served as the U.S.

Ambassador to Mexico from 1993 to 1997, and was

awarded by President Ernesto Zedillo the Aztec Eagle

Award, the highest award that can be given to a non-

Mexican.

James C. O'Brien served as Special Presidential Envoy for

the Balkans from 2000 to 2001, as Principal Deputy

- Director of the State Department Policy Planning Staff

from 1998 to 2000, and as a State Department official

from 1989 to 2001.

John O'Leary served as U.S. Ambassador to Chile from

1998 to 2001. He is currently a Principal of O'Leary &

Barclay LLC, and a Member of the Board of Directors of

the Council of American Ambassadors and of the

Association for Diplomatic Studies and Training.

Thomas R. Pickering served as the Under Secretary of State

for Political Affairs from 1997 to 2001, and was the U.S.

Ambassador and Permanent Representative to the United

Nations from 1989 to 1992. A Career Ambassador,

during his diplomatic career, he also served as Assistant

Secretary of State for Oceans, Environment and Science,

U.S. Ambassador to The Russian Federation, U.S.

Ambassador to India, U.S. Ambassador to Israel, U.S.

Ambassador to E] Salvador, U.S. Ambassador to Nigeria,

U.S. Ambassador to The Hashemite Kingdom of Jordan,

3a

and Executive Secretary of the Department and Special

Assistant to the Secretary. He was also President of the

Eurasia Foundation.

J. Stapleton Roy is Managing Director of Kissinger

Associates, Inc. A Career Ambassador, he served as U.S.

Ambassador to Indonesia, U.S. Ambassador to the

Peoples’ Republic of China, and U.S. Ambassador to

Singapore. He also served as Assistant Secretary of State

for Intelligence and Research, Executive Secretary of the

Department and Special Assistant to the Secretary, and as

Deputy Assistant Secretary for East Asian and Pacific

Affairs.

Nancy Soderberg is the Vice-President for Multilateral

Affairs at the International Crisis Group, and served as

Deputy Assistant to the President for National Security

Affairs and as the U.S. Ambassador and Representative

for Special Political Affairs at the United Nations.

Abraham D. Sofaer is a Senior Fellow at the Hoover

Institution, Stanford University, and Professor of Law

(by Courtesy) at the Stanford Law School. He served as

a federal district judge in the Southern District of New

York from 1979 to 1985. From 1985 to 1990 he served

as Legal Adviser at the US Department of State.

Strobe Talbott served as Deputy Secretary of State from

1994-2001, and Ambassador-at-large and Special

Advisor to the Secretary of State for the former Soviet

Union from 1993-1994,

Malcolm R. Wilkey is a retired Circuit Judge of the U.S

Court of Appeals for the D.C. Circuit, where he served

from 1970 to 1985, and is a former U.S. Ambassador to

Uruguay (1985-90). He also served as Adviser to the

American Law Institute Restatement of the Foreign

Relations Law of the United States from 1979 to 1986.

4a

Frank G. Wisner is Vice-Chairman of the American

International Group. A Career Ambassador, he served as

U.S. Ambassador to India, U.S. Ambassador to the

Philippines, U.S. Ambassador to Egypt, and U.S.

Ambassador to Zambia. He also served as Under

Secretary of Defense for Policy, Under Secretary of State

for International Security Affairs, and Senior Deputy

Assistant Secretary of State for African Affairs.