Amicus Curiae Brief — Sanchez-Llamas v. Oregon

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———

FILED

Go) JAN 31 2006

OFFICE O° TRE CLERK

Nos. 05-51 and 04-10 “har

OWVART US.

In the Supreme Court of the Gnited States

MARIO A. BUSTILLO, PETITIONER

GENE M. JOHNSON, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS

MOISES SANCHEZ-LLAMAS, PETITIONER

Vv.

STATE OF OREGON

ON WRITS OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

AND THE SUPREME COURT OF OREGON

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DOUGLAS HALLWARD-DRIEMEIER

Assistant to the Solicitor

JOHN B. BELLINGER, III General

Legal Adviser ROBERT J. ERICKSON

Department of State Attorney

Washington, D.C. 20520 Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether Article 36 of the Vienna Convention on

Consular Relations, April 24, 1963, 21 U.S.T. 77, 100-101, 596

U.N.T.S. 261, 292, 294, creates individual rights that may be

judicially enforced in a criminal case at the behest of a

criminal defendant (Nos. 04-10566 & 05-51).

2. Whether a violation of Article 36’s requirement that a

detained foreign national be advised of his rights to have

consular officials informed of his detention and to communi-

cate with the consular post requires the suppression of a

detainee’s statements to the police (No. 04-10566).

3. Whether state courts may preclude a defendant from

raising a claim under Article 36 based on the defendant’s

procedural default in failing to raise the claim at trial (No. 05-

51).

(I)

TABLE OF CONTENTS

Page

Interest of the United States ................. cece ee eees 1

EE dadicndvcncndcenivesvescessssvenened Poosecwes 2

Ee PEED kfc cv ccccdccnacaccuscccten 2

i IIIS © oo cccindésacoccccéscotecece 3

PTD nscale ceeedcededbeucdeesioussess 7.

EN Pere rer eT rer Terre Terre eT TTT Te 1]

The Vienna Convention does not provide a ~

basis on which petitioners may challenge their

SE 5 66 00 weedcdncescdivcenseececccs 11

I. Article 36 does not confer individually

III 5 dc cdieneckddetadnedietieien 11

A. Treaties are presumed to be enforteable

by States, not by individuals, absent a

_ Clear indication to the contrary ........... 11

B. The language and structure of the

Vienna Convention confirm that it does

not create privately enforceable rights ... 16°

C. The Vienna Convention’s ratification

history and its construction by the

Executive Branch confirm that it was

not understood to have the radical effect

of creating individual rights ...... awh aks 22

D. The implementation of Article 36, both

in the United States and abroad, belies

an individual-rights interpretation ....... 24

E. The International Court of Justice’s

decisions construing the Convention do

not overcome the conclusions compelled

by principles of treaty interpretation,

the language and purpose of the Con-

vention, and its implementation history ... 28

(IIT)

Table of Contents—Continued:

Ii.

IIT.

Conclusion

Appendix

The suppression of evidence is not an

available remedy for a violation of Article 36’s

consular notification provision ...............

A. The Court’s authority to impose

exclusionary rules on the States is

highly circumscribed ............ese0:

B. There is no basis for construing the

Vienna Convention as incorporating an

implied suppression remedy ............

1. Neither the text nor structure of the

Convention suggests that the drafters

intended suppression of evidence as a

remedy for violations of Article 36(1)

2. Asuppression remedy would be

inconsistent with the implementation

practices of the State parties to the

CEN 5. sos cos nncavancaneasonus

.. 36

3. The Senate did not intend for the Court

to adopt a suppression remedy for

Vienna Convention violations .......

The Vienna Convention does not preclude

application of procedural default principles ...

A. This Court’s decision in Breard is

controlling and should not be

WORTOIIOS 6 i.5.6. 000 bands antvanectenes

B. Nothing about Vienna Convention

claims takes them outside the

procedural DOF FUE .....cccccccscceces

“eevee eevreveeeneeeaeeeneerereeenenwneneer eee ee eee eneeeee

.. 42

Cases:

TABLE OF AUTHORITIES

American Ins. Ass'n v. Garamendi; 539 U.S. 396

EES RS TE SE oa 16, 44

- Anderson v. Villela, 210 F. Supp. 791

ET ee i eek deicuskbeoaneeseoese 15

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) ......... cece cece ceceees 12

Asakura v. Seattle, 265 U.S. 332 (1924) -............ 13

Avena and other Mexican Nationals (Mezico v.

United States), 2004 1.C.J.12 (Mar. 31) ..... 8, 29, 37

Brady v. Maryland, 373 U.S. 83 (1963) ............045 5

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

Bustillo v. Commonwealth, No. 2321-98-4, 2000 WL

365930 (Va. Ct. App. Apr. 11, 2000), cert.-denied,

SE IE 5

Bustillo v. Virginia, 5382 U.S. 1072 (2001) ............. 5

Canada v. Van Bergen, (2000) 261 A.R. 387 .......... 27

Charlton v. Kelly, 229 U.S. 447 (1913) .............5. 11

Coleman v. Thompson, 501 U.S. 722 (1991) .......... 42

Davis v. Packard, 32 U.S. (7 Pet.) 276 (1833) ......... 14

Dickerson v. United States, 530 U.S. 428

i Mciteed ad dgadienenes: 9, 31, 32, 33, 34, 35, 37, 41

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) ......... ll

Fujitsu Ltd. v. Federal Express Corp., 247 F.3d

423 (2d Cir.), cert. denied, 534 U.S. 891 (2001) ..... 14

Gerritsen v. dela Madrid Hurtado, 819 -

ns soca e te ceaceenssesesees< 14

Head Money Cases, 112 U.S. 580 (1884) .......... 11,13

Johnson v. Browne, 205 U.S. 309 (1907) ............. 14

Cases—Continued: Page

Johnson v. Eisentrager, 339 U.S. 769 (1950) .......... 12

Jordan v. Tashoro, 278 U.S. 123 (1928) .............. 13

Judgment of 7 Nov. 2001, BGHSt 5, 116.............. 26

Khadr v. Canada (Minister of Foreign Affairs)

[2005] 2 F.C.R. D-25 (Can. Fed. Ct. 2004) ......... 26

Kolovrat v. Oregon, 366 U.S. 187 (1961) .............. 13

Lagrand Case (Germany v. United States), 2001

I 28, 29, 44, 45

Mallory v. United States, 354 U.S. 449 (1957) ........ 33

Mapp v. Ohio, 367 U.S. 643 (1961) .............00005. 32

Massaro v. United States, 538 U.S. 500 (2003) . . 10, 46, 47

McNabb v. United States, 318 U.S. 332 (1943) ..... 33, 34

Medellin v. Dretke, 125 S. Ct. 2088 (2005) ........... 2,3

_ Miller v. United States, 375 U.S. 301 (1958) ......... 33

Miranda v. Arizona, 384 U.S. 436 (1966) .............. a)

Northern Pipeline Constr. Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982) ................. 29

Payne v. Arkansas, 356 U.S. 560 (1958) .... 2.2.2.2... 32

Pennsylvania Bd. of Probation & Parole v. |

Ge aes Se GEE cv dcacesiskdcadccnsacess 31

R. v. Abbrederis (1981) 1 N.S.W.L.R. 530 ............ 27

R. v. Partak, 2001 C.C.C. Lexis 312 (Ont. Super.

a AF ED dsiwedirunscccancediecesecees 26

R. v. Su [1997] 1 V.R. 1 (Sup. Ct. Viet.) ............... 26

R. v. Tan [2001] WASC 275 (W. Austl. Sup. Ct.) ...... 26

Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991),

cert. denied, 502 U.S. 1035 (1992) ................. 14

Vil

Cases—Continued: Page

Roper v. Simmons, 125 S. Ct. 1183 (2005) ............ 35

Sanitary Dist. v. United States, 266 U.S. 405

Dt? dcccctudinddaminbwdaniandaendanoneasuner 15

Sarelas v. Rocanas, 311 F.2d 36 (7th Cir. 1962) ....... 15

Sumitomo Shoji Am., Inc. v. Avagliano, 457

ee ET nn. céndcedssbunasbedsesuuckesesds 8, 23

Tan Seng Kiah v. R. (2001] 10 NTLR 128 (N.

Pe EA HEED décbucdacduessovecsancensons 26

United States v. Ademaj, 170 F.3d 58 (1st Cir.),

cert. denied, 528 U.S. 887 (1999) ..............005: 36

United States v. Alzarez-Machain, 504 U.S. 655

cided deadcenenenebedansnedekdenaeubecsues 14

United States v. Alvarez-Sanchez, 511 U.S.

DET cclstccanstanssadaleseeneebeonnneaakes 34

United States v. Ani, 138 F.3d 390 (9th Cir. 1998}7..... 32

United Staies v. Balsys, 524 U.S. 666 (1998) .......... 37

United States v. Benevento, 836 F.2d 60 (2d Cir.

1987), cert. denied, 486 U.S. 1043 (1988) ........... 33

United States v. Caceres, 440 U.S. 741 (1979) ...2..... 32

United States v. Chaparro-Alcantera,

226 F.3d 616 (7th Cir. 2000), cert. denied,

Se ae 36

United States v. De La Pava, 268 F.3d 157

a ee 12, 13, 19

United States v. Emuegbunam, 268 F.3d 377 (6th

Cir. 2001), cert. denied, 535 U.S. 977 (2002) ..... 11,13

United States v. Giordano, 416 U.S. 505 (1974) ....... 22

Vill

_Cases—Continued: Page

United States v. Hensel, 699 F.2d 18 (ist Cir.),

cert. denied, 461 U.S. 958 and 464 U.S. 823

RRB ES Se Fae a eI yee Re Oe 33

United States v. Indelicato, 865 F.2d 1370

(2d Cir.), cert. denied, 493 U.S. 811 (1989) ......... 33

United States v. Jimenez-Nava, 243 F.3d 192

(5th Cir.), cert. denied, 533 U.S. 962 (2001) -. . 12, 36, 38

United States v. Li, 206 F.3d 56 (1st Cir.),

cert. denied, 531 U.S. 956 (2000) ........ 12, 13, 22, 36

United States v. Lombera-Camorlinga,

206 F.3d 882 (9th Cir.), cert. denied,

SE EE cednncdccuaneddenciousss 35, 36, 37

United States v. Mason, 52 F.3d 1286 (4th Cir.

RR ee eee eres RN ern a 33

United States v. Minjares-Alvarez, 264 F.3d 980

Kk BE ee meiaeaeions 36

United States v. Ortiz, 315 F.3d 873 (8th Cir.

2002), cert. denied, 538 U.S. 1042 and

EEE AT I Re ee 38

United States v. Page, 232 F.3d 536 (6th

Cir. 2000), cert. denied, 532 U.S. 935,

1023, and 1056 (2001) ........ sundoatebedkeddunes 36

United Statesv. Payner, 447 U.S, 727 (1980) ......... 31

United States v. Rauscher, 119 U.S. 407 1886) ........ 14

United States v. Stuart, 489 U.S. 353

Dl stadcnstaseasnewesuaétenedeewened 8, 22, 23, 24

United States v. Ware, 161 F.3d 414 (6th Cir.

1998), cert. denied, 526 U.S. 1045 (1999) ........... 32

Wacker v. Bisson, 348 F.2d 602 (Sth Cir. 1965) ....... 14

Cases—Continued: - Page

Waltier v. Thompson, 189 F. Supp. 319 (S.D.N-Y.

DU i tétddateccuduadnindedsdnedssuibesetaens 15

Wainwright v. Sykes, 434 U.S. (1977) ............. 42, 45

Whitney v. Robertson, 124 U.S. 190 (1888) ........... 11

Williams v. Taylor, 529 U.S. 362 (2000) .............. 29

Wilson v. Arkansas, 514 U.S. 927 (1995) ..........0-. 34

Yist v. Nunnemaker, 501 U.S. 797 (1991) ............. 45

Zschernig v. Miller, 389 U.S. 429 (1968) ............. 38

Constitution, treaties, and statutes:

U.S. Const.: °

Art. 6, Cl. 2 (Supremacy Clause) ............... 32, 1a

I il Sa he oa Jade dhe g une igeduall 32

PDT tn do ddducaddiuchetuasduneudenmeeteesaeet 32

Charter of the United Nations, June 26, 1945,

i Se es MEE b. vd ob daienvodvawssces®es 44, 45, 4a

Convention Relative to the Treatment of Prisoners

of War, July 27, 1929, 47 Stat. 2021, 118 U.N.T.S.

I ints aeled bias ahaha hinheh he dcdiawiied willie tit daa ah ee ek oe 12

International Convention for the Suppression of the

Financing of Terrorism, opened for signature

Jan. 10, 2000, S. Treaty Doc. 49, 106th Cong., 2d

Sess. (2000), 2178 U.N.T.S. 2B0 ... 2c ccccccccccces 27

art. 9, para. 3,S. Treaty Doc. No. 49,

106th Cong., 2d Sess. 8, 2178 U.N.T.S. ~

ED dutucdtddedensdacceasetontandadstdandeet 28

BOE cbeesucdsdsdvcceesccpcceincéetsndsececs 28

Treaties and statutes—Continued: Page

International Convention for the Suppression of

Terrorist Bombings, opened for signature Jan. 12,

1978, S. Treaty Doc. No. 6, 106th Cong.,

Ist Sess. (1999), 2149 U.N.T.S. 284 ............... 27

art. 7, para. 3, S. Treaty Doc. No. 6,

106th Cong., 1st Sess. 7 (1999), 2149

ES oc ccteuenisedsecescéunnssseses 28

art. 7, para. 4,S. Treaty Doc. No. 6,

106th Cong., Ist Sess. 8 (1999), 2149

PE V8 os evdendusdecesscocecucoessss 28

Optional Protocol Concerning the Compulsory

Settlement of Disputes, 21 U.S.T. 77, 596

DeesR GD ch cnncdesncesenssesutdsencesess 3, 20, 3a

art. 1,21 U.S.T. 326, 596 U.N.T.S. 488 ........ 3, 4a

Statute of the International Court of Justice,

June 26, 1945, art. 59, 59 Stat. 1055

GED dccvencedes cheuedendeedendsénbeus 3, 20, 45, 5a

Vienna Convention on Consular Relations,

Apr. 24, 1963, 21-U.S.T. 77, 596 U.N.T.S.

BUS. cobdccnndecdoosetuddcudnadaddensasvases passim

art. 36, 21 U.S.T. 100, 596 U.N.T.S. 292 .... passim

art. 36(1), 21 U.S.T. 101, 596

SEED nedbdctcrcédsccecenss 3, 19, 29, 2a

art. 36(1)(a), 21 U.S.T. 101, 596

of 4 Brrr Tee 2, 10, 20, 2a

art. 36(1)(b), 21 U.S.T. 101, 596

CAPER ecnvecccescesecusescecess passim

art. 36(1)(¢), 21 U.S.T. 101, 596 U.N.T.S. 292 .. 3, 3a

art. 36(2), 21 U.S.T. 101, 596 U.N.T\S.

BE weecvocecevcoccnccvec 4, 10, 17, 29, 44, 46, 3a

Treaties and statutes—Continued: Page

art. 43, 21 U.S.T. 104, 596 U.N.T.S. 298 ......... 38

art. 43(1), 21 U.S.T 104, 596 U.N.T.S. 298. ...... 14

art. 44(3), 21 U.S.T. 105, 596 U.N.T.S. 298 ...... 38

Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T.S. 331 ...............4.. 24

art. 31(1), 1155 U.N.T.S. 340 ................ 24, 30

art. 31(3)(b), 1155 U.N.T.S. 340 .......... 24, 30, 39

Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110

idee Sends eli die ee boisiaucdueuiesdis 45

United Nations Participation Act of 1945,

22 U.S.C. 287 et seq.:

i do dds can cu ic ccenusbdaesws wens 44, 5a

DEED ood i kc cecandnsendbuekeeaese 44, 6a

ET “124. po ceekecthenueunesecesbadesedsst 32

ES 6k 0 in ented adem keethe reese ebeties 33

TEE iin gen cb e's Cnucsuusecoeadsesanséanteues 4]

EE tnt soo oud tiv eseunsieteeenee dens 41

nT ¢ cccuvicenudedussusdneddseuavetece 34

IIE ointe tet cucu tk wacadebeesdbosdues teas 33

Miscellaneous:

Diane M. Amann, A Whipsaw Cuts Both Ways: The

Privilege Against Self-Incrimination in an

International Context, 45 UCLA L. Rev. 1201

DU adbhis todd sis blot bieiebsdbadectdbichdedas 2

Craig M. Bradley, Mapp Goes Abroad, 52 Case

Te es PEED Sncesccsesciscecccestess 2

115 Cong. Rec. 30,997 (1969) «0.0... cece cece eee eenees 2

XII

Miscellaneous—Continued: ) Page

Consular Notification and U.S. Criminal |

Prosecution: United States v. Nai Fook Li

and United States v. Lombera-Camorlinga,

2000 Digest chap. 2AA)(1) ......cccccccccccccccces 23

J.B. Dawson, The Exclusion of Unlawfully Obtained

Evidence: A Comparative Study, 31 Int'l] Comp.

Se GED Sb Avetccdedadddcdasnscdyeddesaens 35

Letter from David R. Andrews, Legal Adviser,

Department of State, to James K. Robinson,

Assistant Attorney General, Criminal Division,

U.S. Department of Justice, Re: United States

v. Li, No. 97-2034 (1st Cir.) (Oct. 15, 1999)

available at <http://www.state.gov/documents/

CFC CROEED « ccccecascscnescnscoeeseus 23

1 Official Records, United Nations Conference on

Consular Relations, Vienna, 4 Mar. - 22 Apr.

1963, U.N. Doc. A/CONF.25/16 (1963). ......... 18,19

Restatement (Third) of the Foreign Relations Law

of the United States (1987):

Wee hbdecieddanddndddesavesacasunieneaios 12,15

Wed svucecvcacesdlndtecddetincseuenadeeaede 36

S. Exec. Rep. No. 9, 91st Cong., Ist Sess. (1969) ... 14, 22

S. Rep. No. 1097, 90th Cong., 2d Sess. (1968) ......... 41

S. Treaty Doc. No. 49, 106th Cong., 2d Sess. (2000) ... 28

Summary Records of the 535th Meeting, [1960] 1

Y.B. Int'l L. Comm'n, U.N. Doc. A/CN.4/SER.A/

Dy eécucdbeb sabe tcrudiens obbdaneeaeeeunues 17,18

XIII

Miscellaneous—Continued: Page

U.S. Department of State, Consular Notification

and Access: Download Page (visited Jan. 31,

2006) <http://travel.state.gov/law/info/

Ec ccednscecepesacnecaresendiacencs 25

U.S. Department of State, Consular Notification

and Access: Instructions for Federal, State, and

Local Law Enforcement and Other Officials

Regarding Foreign Nationals in the United

States and the Rights of Consular Officials to

Assist Them (visited Jan. 31, 2006) <http://

travel.state.gov/law/consular/consular_636.

ME scdcdedcancacanccunwinnscenaneenteqnaes aes 25

In the Supreme Court of the Anited States

No. 05-51

MARIO A. BUSTILLO, PETITIONER

GENE M. JOHNSON, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS

04-10566

MOISES SANCHEZ-LLAMAS, PETITIONER

Vv.

STATE OF OREGON

ON WRITS OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

AND THE SUPREME COURT OF OREGON

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case involves the questions whether Article 36 of the

Vienna Convention on Consular Relations (Vienna Conven-

tion), April 24, 1963, 21 U.S.T. 77, 100-101, 596 U.N.T.S. 261,

292, 294, creates individual rights that may be judicially en-

forced in a criminal case atthe behest of a criminal defendant,

and, if so, whether a violation of Article 36’s requirement that

a detained foreign national be advised of his rights to have

consular officials informed of his detention and to communi-

cate with the consular post requires the suppression of a de-

tainee’s statements to the police, and whether a State’s ordi-

nary principles of waiver and procedural default may preclude

a defendant from raising a claim under Article 36 based on the

(1)

defendant’s failure to raise the claim at trial. The United

States has a substantial interest in the interpretation and

effect that courts in the United States give to international

instruments to which it is a party and therefore has a consid-

erable interest in the resolution of this case. The United

States has participated in previous cases raising similar ques-

tions. See, e.g., Medellin v. Dretke, 125 S. Ct. 2088 (2005) (per

curiam); Breard v. Greene, 523 U.S. 371 (1998) (per curiam).

STATEMENT

1. The Vienna Convention

In 1969, with the advice and consent of the Senate, see 115

Cong. Rec. 30,997, the United States ratified the Vienna Con-

vention, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Article

36 of the Vienna Convention, 21 U.S.T. at 100-101, 596

U.N.T.S. at 292, 294, is designed to “facilitat{e] the exercise

of consular functions relating to nationals of the sending

State.” Toward that end, Article 36 provides that “consular

officers shall be free to communicate with nationals of the

sending State and to have access to them.” /d., art. 36(1)(a).:

Article 36 further provides that “[ilf [a foreign detainee]

so requests, the competent authorities of the receiving State

shall, without delay, inform the consular post of the sending

State if, within its consular district, a national of that State is

arrested or committed to prison or to custody pending trial or

is detained in any other manner.” Vienna Convention, art.

36(1)(b). In addition, “[alny communication addressed to the

consular post by the person arrested, in prison, custody or

detention shall also be forwarded by the said authorities with-

out delay.” /bid. State authorities “shall inform the person

concerned without delay of his rights under [Article

36(1)(b)].” [bid.

Article 36 also provides that “consular officers shall have

the right to visit a national of the sending State who is in

prison, custody or detention, to converse and correspond with

him and to arrange for his legal representation.” Vienna Con-

vention, art. 36(1)(c). It specifies that consular officers also

“have the right to visit any national of the sending State who

is in prison, custody or detention in their district in pursuance

of a judgment.” /bid. At the same time, it provides that “con-

sular officers shall refrain from taking action on behalf of a

national who is in prison, custody or detention if he expressly

opposes such action.” /bid.

The rights referred to in Article 36(1) “shall be exercised

in conformity with the laws and regulations of the receiving

State.” Vienna Convention, art. 36(2). That requirement is

“subject to the proviso, however, that the said laws and regu-

lations must enable full effect to be given to the purposes for

which the rights accorded under this Article are intended.”

Ibid.

At the time the United States ratified the Vienna Conven-

tion, it also ratified an Optional Protocol to the Vienna Con-

vention on Consular Relations Concerning the Compulsory

Settlement of Disputes (Optional Protocol), Apr. 24, 1963, 21

US.T. 77, 325, 596 U.N.T.S. 487. Parties to the Optional Pro-

tocol may submit “[d]isputes arising out of the interpretation

or application of the Convention” for resolution by the Inter-

national Court of Justice (ICJ). Optional Protocol, art. I, 21

U.S.T. at 326, 596 U.N.T.S. at 488. Like all decisions of the

ICJ, however, decisions in cases submitted to the ICJ under

the Optional Protocol have “no binding force except between

the parties and in respect of that particular case,” Statute of

the International Court of Justice, June 26, 1945, art. 59, 59

Stat. 1055, 1062. On March 7, 2005, the United States noticed

its withdrawal from the Optional Protocol. See Medellin v.

Dretke, 125 S. Ct. 2088, 2101 (2005) (O’Connor, J., dissenting).

2. State Court Proceedings

a. Bustillo, No. 05-51. (1) On the night of December 10,

1997, James Merry was struck in the head by a young man

wielding a baseball bat while standing outside a Popeyes Res-

taurant in Springfield, Virginia. Merry later died as a result

of his injuries. Based on the statements of several witnesses

to the attack, Bustillo, a Honduran national, was arrested and

charged with murder. 05-51 Pet. App. 39a; 05-51 Br. in Opp.

4. The arresting authorities did not inform Bustillo that he

could have the Honduran consulate informed of his detention

if he so desired. 05-51 Br. in Opp. 4.

At trial, several prosecution witnesses identified Bustillo

as the one who struck Merry with the bat. One of the wit-

nesses knew Bustillo from classes they had together at school;

the others separately identified him from a photo spread.

Shortly before the attack, Bustillo and other members of his

street gang had confronted Merry inside the restaurant while

he was eating dinner with the three individuals who later

identified Bustillo as Merry’s killer. The witnesses recalled

that Merry’s attacker had been wearing a red shirt, as had

Bustillo that evening. 05-51 Pet. App. 39a; 05-551 Br. in Opp.

2-5.

The defense’s theory was that Merry’s attacker was an-

other individual known as “Sirena.” A member of Bustillo’s

gang stated that he saw a man he knew as “Julio” or “Sirena”

approach Merry and strike him with a bat, and a woman who

was standing next to Merry when he was struck testified that

Bustillo was not the assailant although she did not know who

the attacker was. 05-51 Pet. App. 3la-32a. Another witness

testified that she had seen “Sirena,” whose last name she did

not know, on a plane to Honduras the day after Merry died.

05-51 J.A. 205. The jury found Bustillo guilty of first-degree

murder, and he was sentenced to imprisonment for a term of

30 years. 05-51 Pet. App. 19a.

(2) Bustillo, who was represented by counsel, did not ob-

ject at trial that the State had failed to inform him that he

could contact his consulate, nor did he raise the issue in his

post-trial motion to set aside the jury’s verdict or on appeal.

05-51 Pet. App. 47a. On direct review, Virginia’s intermediate

appellate court affirmed Bustillo’s conviction and sentence,

Bustillo v. Commonwealth, No. 2321-98-4, 2000 WL 365930

(Va. Ct. App. Apr. 11, 2000) (unpublished), and the Supreme

Court of Virginia refused a petition for further appeal, J.A. 9.

This Court denied Bustillo’s petition for certiorari. Bustillo

v. Virginia, 532 U.S. 1072 (2001).

Following direct review, Bustillo petitioned for state ha- °

beas corpus relief, alleging for the first time that his right to

consular notification under the Vienna Convention had been

violated and that he was entitled to reversal of his conviction

as a result. 05-51 Pet. App. 40a. Alternatively, Bustillo ar-

gued that his retained trial counsel was ineffective in failing

to advise Bustillo of his right to consult with the Honduran

consulate. /d. at 47a. The state habeas court denied Bustillo’s

Vienna Convention claim without addressing the merits. The

court ruled that the claim was procedurally barred by

Bustillo’s failure to assert it “during trial and through the

appellate process.” /d. at 43a. The court also held that Bus-

tillo’s Vienna Convention-based ineffectiveness claim was

procedurally barred. /d. at 47a. The habeas court granted

Bustillo an evidentiary hearing on the separate question

whether the prosecutor failed to disclose exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963). 05-51

Pet. App. at 48a. Although the court found that the evidence

was exculpatory, id. at 34a-35a, it determined, after a second

hearing, that Bustillo’s defense had not been prejudiced and

denied the habeas petition, id. at 15a-16a.

The Supreme Court of Virginia refused a petition for ap-

peal, ruling that Bustillo had not properly perfected his ap-

peal with respect to the Brady claim and that “there is no

reversible error” with respect to the Vienna Convention

claim. 05-51 Pet. App. la; 05-51 Br. in Opp. 11. This Court

granted certiorari limited to the Vienna Convention issue.

See 126 S. Ct. 621 (2005). :

b. Sanchez-Llamas, No. 04-10566. (1) Sanchez-Llamas,

a Mexican national, was arrested in December 1999 after an

exchange of gunfire with police officers, in which he wounded

one officer in the leg. 04-10566 Pet. App. 15. Shortly after

Sanchez-Llamas’s arrest, officers apprised him in both Eng-

lish and Spanish of his Miranda rights, which he waived. /d.

at 15 & n.2. The officers did not additionally inform Sanchez-

Llamas that he could request that the Mexican consulate be

notified of his detention. /bid. During questioning, Sanchez-

Llamas made incriminating statements. /d. at 16. He was

thereafter charged with attempted murder, attempted aggra- _

vated murder, and various other crimes. /bid.

Before trial, Sanchez-Llamas moved to suppress evidence

of his post-arrest statements on the ground that he “was not

advised of his right to consult with the Mexican Counsel.” 04-

10566 Pet. App. 3. The trial court denied Sanchez-Llamas’s

suppression motion, ruling that a violation of the Vienna Con-

vention does not require the suppression of the defendant’s

incriminating statements as a remedy. /d. at 10. Sanchez-

Llamas was thereafter convicted of 11 felony counts and sen-

tencedto imprisonment for 246 months. /d. at 16.

(2) The Oregon Supreme Court affirmed. In rejecting

Sanchez-Llamas’s Vienna Convention claim, the court recog-

nized “the general rule * * * that rights created by interna-

tional treaties belong to the signatory state and are not en-

forceable in American courts by private individuals,” absent

~ “a specific intent to create such [enforceable] individual rights

[that] can be discerned from the treaty as a whole.” 04-10566

Pet. App. 18. Although “Article 36 expressly refers to the

detained foreign national’s ‘rights’ to consular access and noti-

fication,” the court stated that Article 36’s “mere use of the

term ‘rights’ cannot, by itself, support an intent to require

signatory states to allow individual detainees to enforce those

‘rights’ in a criminal proceeding against them—particularly

when the treaty does not specify the nature of the declared

‘rights’ or any remedy that is required for their breach.” /d.

at 20-21. The Oregon Supreme Court found it more likely

that the Convention’s drafters had used the phrase informing

a prisoner of his “rights” as a shorthand “way of describing

what |information] a receiving signatory state must tell a for-.

eign detainee.” /d. at 21. This interpretation was bolstered,

the court continued, by language in both the treaty’s pream-

ble and Article 36’s introductory clause suggesting that “the

treaty and Article 36 are concerned with relationships and

obligations among nations, not with individual rights.” /bid.

Absent any “clear intention” that would negate the gen-

eral presumption against enforcement of treaty provisions by

private individuals, the Oregon Supreme Court concluded

“that the obligations that Article 36 describes are enforceable

only by the affected signatory states and not by individual

detainees.” 04-10566 Pet. App. 22. The court therefore re-

jected Sanchez-Llamas’s claim that his statements should be

suppressed as a consequence of the Vienna Convention viola-

tion. /d. at 22-23. The Oregon Supreme Court declined, as a

matter of discretion, to address Sanchez-Llamas’s claim that

the waiver of his Miranda rights was not voluntary. /d. at 15

n.2. This Court granted a petition for certiorari on the ques-

tions whether the Vienna Convention confers an individually

enforceable right and, if so, whether suppression is the proper

remedy for such a violation. See 126 S. Ct. 621 (2005).

SUMMARY OF ARGUMENT

1. Article 36 of the Vienna Convention on Consular Rela-

tions does not create an individually enforceable right that a

criminal defendant may assert to attack his conviction and

sentence or to suppress evidence. Article 36 requires parties

to the Convention to notify a detained foreign national that he

may request consular assistance. But the text does not autho-

rize private enforcement of that provision in court. It has

long been established that, absent a clear indication to the

contrary, an international treaty is addressed solely to the

rights of States and not private individuals; that is particu-

larly true of a treaty that bears on sovereign conduct and the

relations between States. The Vienna Convention reflects

_that understanding in express terms in its preamble, and

again in Article 36, by confirming that the Convention is in-

tended to facilitate the provision of consular services, not to

create individual rights. Nothing in the Vienna Convention’s

text or history overrides that understanding or justifies rec-

ognizing a novel, judicially enforceable right of an individual

to assert a violation of Article 36 in a criminal prosecution.

Any suggestion that the parties to the Convention in-

tended, by its adoption, to create such a judicially enforceable

individual right is contradicted by the historical context in

which the Vienna Convention was approved, as well as by the

40 years of practice under it. Neither petitioners nor their

amici offer a single unambiguous example in the 40-year his-

tory of the Vienna Convention from any of its 161 parties of

an individual defendant being afforded a remedy in his crimi-

nal case on the basis of a Vienna Convention violation. And

the Executive Branch has never interpreted the Vienna Con-

vention to give a foreign national a judicially enforceable right

to challenge his conviction and sentence. That clearly ex-

pressed view of the Executive Branch on the meaning of a

treaty “is entitled to great weight.” United States v. Stuart,

489 U.S. 353, 369 (1989) (quoting Sumitomo Shojo Am., Inc.

v. Avagliano, 457 U.S. 176, 184-185 (1982)).

Against all of that, the reasoning of the International

Court of Justice in Avena and other Mexican Nationals

(Mexico v. United States) (Avena), 2004 1.C.J. 12 (Mar. 31),

that the Vienna Convention creates judicially enforceable

individual rights should, after “respectful consideration,”

Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam), be

rejected. The United States is obligated to comply with the

judgment in that case, and the President has acted to ensure

such compliance. But the United States has no obligation to

accept the reasoning underlying that judgment, or to apply it

in other cases. The ICJ’s reasoning in Avena lacks sufficient

support in the basic rules of treaty interpretation and contra-

dicts the intention and practice of the parties to the Conven-

tion. The responsibility for interpreting the Convention as a

matter of United States law rests with this Court and with the

Executive Branch, whose views are due great deference, and

the relevant legal principles and evidence establish that the

ICJ’s interpretation is incorrect.

2. Even assuming that a receiving State’s failure to com-

ply with the Convention’s consular notification provisions

could give rise to an individually enforceable right, suppres-

sion in state court of a detainee’s voluntary confession, given

after a valid waiver of Miranda rights, would not be an appro-

priate remedy. The Court has no authority to impose an

exclusionary rule on the States as an exercise of the Court’s

supervisory authority. Dickerson v. United States, 530 U.S.

428, 438 (2000). Because there is no assertion that the Consti-

tution or a federal statute mandates a suppression remedy, if

this Court is to require exclusion of evidence as a remedy for

a State’s violation of Article 36, that rule must be found in the

Vienna Convention itself.

There is nothing in the text or history of the Vienna Con-

vention to suggest that its drafters intended suppression of

statements made by a foreign national who was not told that

he could request consular notification. Indeed, the idea that

the drafters would have envisioned suppression of a voluntary

confession as a remedy is difficult to square with the fact that,

in most nations, the exclusionary rule had not taken root at

the time of the Convention’s drafting (and, indeed, still has

not). Even considering United States practice in particular,

the Vienna Convention was drafted years before this Court

decided Miranda v. Arizona, 384 U.S. 436 (1966)—and the

Convention was ratified in this country shortly after Congress

attempted to overrule Miranda. Any suggestion that the

Convention implies a suppression remedy because it serves to

protect the effective exercise of a detainee’s right against self-

incrimination cannot withstand scrutiny. Quite apart from the

absence of a textual foundation for that position, in many

countries, consular officials—and in some countries even the

detainee’s lawyers—would not be allowed access to a detainee

until after the preliminary period of interrogation is con-

cluded. The drafters, therefore, cannot have had an implicit

understanding that the admissibility of a confession would be

tied to full compliance with Article 36(1)(a).

3.. Finally, even assuming that the Vienna Convention

conferred individual rights that are enforceable by defendants

in criminal proceedings, nothing in the Convention precludes

a State from requiring, as a matter of its procedural rules,

that a claimed violation of Article 36 be raised before or dur-

ing trial. “{Rlights” under Article 36 “shall be exercised in

conformity with the laws and regulations of the receiving

State,” and this Court held in Breard that procedural default

rules do not prevent “full effect to be given to the purposes

for which [Article 36 rights] are intended,” as Article 36(2)

provides. 523 U.S. at 375. A procedural-default rule does not

prevent the purposes of Articie 36 from receiving “full effect,”

any more than it denies full effect to constitutional guarantees

that are likewise subject to default. While the President has

‘determined that the United States will comply with the Avena

judgment by reviewing and reconsidering the convictions and

sentences of the 51 Mexican nationals covered by it, notwith-

standing state procedural default rules, there is no obligation

to accept the ICJ's interpretation of Article 36(2) with respect

to other cases, and the Executive Branch does not.

Practical and policy reasons provide no basis for allowing

Article 36 claims to be raised on collateral review even if not

preserved at trial. Unlike a claim of ineffective assistance of

counsel, cf. Massaro v. United States, 538 U.S. 500 (2003),

trial counsel can readily recognize and seek a remedy for Vi-

enna Convention violations, just as counsel does for Miranda

violations and a host of other claims. The absence of notice to

the defendant does not preclude counsel] from recognizing a

possible legal claim (as the preserved claim in No. 04-10566

demonstrates). And requiring adjudication of Vienna Conven-

tion claims at trial would ensure that they could be redressed

in a timely fashion, without the need to upset a final verdict

and require a new trial.

ARGUMENT

THE VIENNA CONVENTION DOES NOT PROVIDE A BASIS

ON WHICH PETITIONERS MAY CHALLENGE THEIR CRIM-

INAL CONVICTIONS

I. ARTICLE 36 DOES NOT CONFER INDIVIDUALLY EN-

FORCEABLE RIGHTS

A. Treaties Are Presumed To Be “inforceable By States,

Not By Individuals, Absent A Clear Indication To The

Contrary

It is a long-established presumption that treaties and

other international agreements do not create judicially en-

forceable individual rights. As this Court stated in the Head

Money Cases, 112 U.S. 580 (1884), “[a] treaty is primarily a

compact between independent nations. It depends for the

enforcement of its provisions on the interest and the honor of

the governments which are parties to it.” /d. at 598. When a

treaty violation nonetheless occurs, it “becomes the subject of

international negotiations and reclamations,” not judicial re-

dress. lbid. See Charlton v. Kelly, 229 U.S. 447, 474 (1913);

Whitney v. Robertson, 124 U.S. 190, 195 (1888) (issues of com-

pliance with treaty obligations are “not judicial questions”;

rather, “the power to determine these matters ha[s] not been

confided to the judiciary * * * but to the executive and leg-

islative departments of our government; * * * they belong

to diplomacy and legislation, and not to the administration of

the laws”); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 306 (1829).

Treaties can, and on occasion do, create judicially enforce-

able private rights. But since such treaties are the exception,

rather than the rule, there is a presumption that a treaty will

be enforced through political and diplomatic channels, rather

than through the courts. United States v. Emuegbunam, 268

F.3d 377, 389-390 (6th Cir. 2001), cert. denied, 535 U.S. 977

(2002); United States v. Jimenez-Nava, 243 F.3d 192, 195-196

(5th Cir.), cert. denied, 533 U.S. 962 (2001); United States v.

De La Pava, 268 F.3d 157, 164 (2d Cir. 2001); United States v.

Li, 206 F.3d 56, 61 (1st Cir.), cert. denied, 531 U.S. 956 (2000).

That background principle applies even when a treaty bene-

fits private individuals. “International agreements, even

those directly benefitting private persons, generally do not

create private rights or provide for a private cause of action

in domestic courts.” 2 Restatement (Third) of the Foreign

Relations Law of the United States (Restatement (Third) of

Foreign Relations) § 907 emt. a, at 395 (1987).

For example, in Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428 (1989), the Court held that two

conventions did not create judicially enforceable rights for

ship owners, even though one specified that a merchant ship

“shall be compensated for any loss or damage” in certain cir-

cumstances, and the other specified that “[a] belligerent shall

indemnify the damage caused by its violation.” /d. at 442 & |

n.10 (citations omitted). The Court explained that the conven-

tions “only set forth substantive rules of conduct and state

that compensation shall be paid for certain wrongs.” Jd. at

442. Even though the agreements referred to “compensation”

for the private party and a State’s obligation to “indemnify,”

that language did not overcome the presumption against trea-

ties creating privately enforceable rights: “They do not cre-

ate private rights of action for foreign corporations to recover

compensation from foreign states in United States courts.”

Ibid. See Johnson v. Eisentrager, 339 U.S. 769, 789 & n.14

(1950) (protections of the Convention Relative to the Treat-

ment of Prisoners of War, July 27, 1929, 47 Stat. 2021, 118

U.N.T.S. 343, are not judicially enforceable). Like the agree-

ments at issue in Amerada Hess, Article 36 may benefit a

detained foreign national, but it does not give that individual

a private right to challenge his conviction and sentence based

on an alleged denial of consular information. See Jimenez-

Nava, 243 F.3d at 195-198; Emuegbunam, 268 F.3d at 391-

394; see also De La Pava, 268 F.3d at 163-165; Li, 206 F.3d at

66-68 (Selya, J. and Boudin, C.J., concurring).

The cases petitioners cite (05-51 Pet. Br. 18-19 n. 3; 04-

10566 Pet. Br. 30-31 n.11, 33-34 n.13) in which the Court has

given effect to self-executing treaty provisions at the behest

of private individuals are readily distinguishable from the

present context. Most of those cases involve explicit treaty

provisions that guarantee to individual aliens freedom to exer-

cise such peculiarly private rights as the ability to enter into

contracts, engage in commerce, or own, devise, or inherit

property on the same basis as United States citizens.’ In light

of the inherently private nature of the rights at issue and the

explicit language of the agreements, the courts gave effect to

the self-executing treaty provisions over inconsistent state

laws. See Head Money Cases, 112 U.S. at 598-599 (noting

that courts will enforce treaty provisions that “regulate the

mutual rights of citizens and subjects of the contracting na-

tions in regard to rights of property” when these “are of a

nature to be enforced in a court of justice”). The affirmative

obligation of the receiving State under Article 36 of the Vi-

enna Convention to provide information to detainees—an

obligation that, when respected, may still result in the send-

ing State providing no response or assistance whatever to the

detainee—is plainly of a different order from the commercial

and property rights afforded by those treaties.

' See, e.g., Kolovrat v. Oregon, 366 U.S. 187, 191 n.6 (1961) (treaty provision

guaranteeing that “(i]n all that concerns the right of acquiring * * * property,

* * * Serbian subjects * * * shall enjoy the rights which the respective laws

grant * * * the subjects of the most favored nation” preempted Oregon law

limiting foreign nationals’ right to inherit property); Asakura v. Seattle, 265

U.S. 382, 340-342 (1924) (bilateral treaty providing that “subjects of |Japan]

shall have liberty” to engage in trade “upon the same terms as native citizens”

of the United States preempted local ordinance precluding aliens from obtain-

ing a business license); Jordan v. Tashiro, 278 U.S. 123, 128 (1928) (same).

In other instances, foreign nationals have been allowed to

defend against criminal prosecution in light of specialty rules

in extradition treaties. See, e.g., United States v. Rauscher,

119 U.S. 407, 419-424 (1886); Johnson v. Browne, 205 U.S. 309,

320-321 (1907). As the Court explained in United States v.

Alvarez-Machain, 504 U.S. 655 (1992), Rauscher and Browne

applied the rule of specialty “because of the practice of na-

tions with regard to extradition treaties,” and “any doubt”

concerning a fugitive’s ability to seek judicial enforcement of

the treaty-conferred rule of specialty “was put to rest by two

federal statutes which imposed the doctrine of specialty upon

extradition treaties to which the United States was a party.”

Id. at 660, 667. There is no similar history of enforcement of

obligations such as those undertaken in Article 36 and there

is no federal statute that purports to make the Article judi-

cially enforceable.

The conclusion that individual defendants cannot rely on

the Vienna Convention to attack their convictions is fully con-

sistent with the accepted understanding that the Vienna Con-

vention is self-executing. See S. Exee. Rep. No. 9, 91st Cong.,

Ist Sess. 5 (1969). The Vienna Convention is self-executing in

the sense that government officials can provide foreign na-

tionals with information about consular assistance and access

to consular officers without the need for implementing legisla-

tion and can further give effect to provisions that were in-

tended to be judicially enforced, such as those relating to con-

sular privileges and immunities. But it is a separate question

> See, ¢.y., Risk v. Halvorsen, 936 F.2d 393, 397 (9th Cir. 1991) (finding con-

sular officer immune under Vienna Convention, art. 43(1), 21 U.S.T. at 104, 596

U.N.T.S. at 298, because duties were consular functions), cert. denied, 502 U.S.

1035 (1992); Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1515-1516 (9th

Cir. 1987) (recognizing the enforceability of the consular immunity provision

of the Convention, but finding that the criminal actions at issue did not qualify

for immunity). That consular immunity can be judicially enforced is consistent

with established law that formed the backdrop for the Vienna Convention. See,

e.g., Davis v. Packard, 32 U.S. (7 Pet.) 276, 284 (1833); Wacker v. Bisson, 348

whether Article 36 gives a foreign national an affirmative

right to challenge his conviction and sentence on the ground

that consular access was denied. 1 Restatement (Third) of

Foreign Relations Law § 111 emt. h, at 47 (“whether a treaty

is self-executing is a question distinct from whether the treaty

creates private rights or remedies.”). Such an action does not

represent simple reliance on a legal protection as a defense,

see 04-10566 Pet. Br. 28, but represents an affirmative use of

the treaty to upset a final conviction. As discussed below, the

available evidence shows that Article 36 does not confer such

a right.

The question whether a private individual has a judicially

enforceable right is also distinct from the question whether

the United States could seek judicial relief in the event that

state officials failed to provide a foreign national access to

consular officers as required by the Vienna Convention. Un-

der longstanding principles, the United States could bring an

action in court to enforce compliance with a treaty obligation.

See Sanitary Dist. v. United States, 266 U.S. 405, 425-426

(1925) (Holmes, J.) (United States has authority to sue “to

carry out treaty obligations to a foreign power”; “The Attor-

ney General by virtue of his office may bring [such a] proceed-

ing and no statute is necessary to authorize the suit.”). The

inherent authority of the United States to-bring an action

stems from the constitutionally grounded primacy of the na-

tional government in the realm of foreign affairs and the need

F.2d 602, 609 n.19 (5th Cir. 1965); Sarelas v. Rocanas, 311 F 2d 36, 38 (7th Cir.

1962), cert. denied, 373 U.S. 949 (1968); Anderson v. Villela, 210 F. Supp. 791,

792 (D. Mass. 1962); Waltierv. Thomson, 189 F. Supp. 319, 320(S.D.N.Y. 1960).

The Vienna Convention thus did not create consular immunity, but simply

carried forward an established understanding. By contrast, there was no

established practice that consular notice and access—like that treated in

Article 36—could be individually enforced in court. Indeed, there appears to

have been no practice in international law before Article 36 of a detainee being

allowed to attack a criminal conviction based on any ground related to a failure

of consular notification, communication, or access.

for the United States to be able to effectuate treaty obliga-

tions and speak with one voice in dealing with foreign nations.

See American Ins. Ass’n v. Garamendi, 539 U.S. 396, 413-

414, 424 (2003). No similar principle confers a general right

to enforce treaties on private individuals. Moreover, judicial

action initiated or supported by the Executive to enforce a

treaty obligation or ameliorate a breach is quite different

from a recognition of judicially enforceable rights—with at-

tendant potential complications for United States foreign

policy—over the objection of the Executive.

B. The Language And Structure Of The Vienna Convention

Confirm That It Does Not Create Privately Enforceable

Rights

Article 36(1)(b) of the Vienna Convention specifies that “if

he so requests, the competent authorities of the receiving

State shall, without delay, inform the consular post of the

sending State if, within its consular district, a national of that

State is arrested.” 21 U.S.T. at 101, 596 U.N.T-.S. at 292. In

addition, “|a]lny communication addressed to the consular post

by the person arrested, * * *_ shall also he for-

warded * * * without delay.” /bid. Finally, “authorities [of

the receiving State, 2.e., of the United States] shall inform the

person concerned without delay of his rights under [Article

36(1)(b)].” bid.

The only violation of Article 36(1)(b) that petitioners as-

sert is that they were not informed that they could request

that their consulates be notified of their detention. Petition-

ers contend (05-51 Pet. Br. 21-22; 04-10566 Pet. Br. 15-16)

that a violation of this obligation infringes an individual right

of the detainee, which may be vindicated in court, based in

large part on the fact that Article 36(1)(b) refers to the de-

tainee’s “rights.” Yet, the “rights” enumerated in Article

36(1)(b) do not encompass notice to the detainee; the provision

places only a duty on the receiving State to give notice to the

detainee about consular access. And the failure to fulfill that

duty is the only violation alleged here.°

Even where the Convention does use the term “right,”

that usage does not signify an individual right that can be

privately enforced through judicial process. The discussions

of the International Law Commission (ILC) in drafting its

proposed Article 36 (submitted by the ILC to the United Na-

tions Conference) reflect that the proposal “related to the

basic function of the consul to protect his nationals vis-a-vis

the local authorities.” Summary Records of the 535th Meet-

ing, [1960] 1 Y.B. Int'l L. Comm’n, U.N. Doc. A/CN.4/SER.A/

1960. The Article’s proponent, Sir Gerald Fitzmaurice, specif-

ically warned that “(t]o regard the question as one involving

primarily human rights or the status of aliens would be to

confuse the issue,” id. at 49; rather, the procedural provisions

of Article 36 “were intended to provide a consul with the

means of carrying out the function of protection,” ibid. See

ibid. (Mr. Erim agreed “that the proposed new article

_* * * dealt with the rights and duties of consuls and not with

the protection of human rights or the status of aliens”). Thus,

although the ILC experts referred to “the right of

* * * nationals of access to [the consul],” that “right” was in

* Plainly, the receiving State’s obligation under Article 36(1)(b) to “inform

the person * * * of his rights under this sub-paragraph” refers to the “rights”

addressed in the preceding two sentences: (1) to have consular officials of the

sending State notified of his detention and (2) to have communications

forwarded to the consular post. Neither petitioner maintains that he was

affirmatively prevented from having his consul notified or otherwise

communicating with his consulate. Petitioners also cite in support of their

argument (05-51 Pet. Br. 23; 04-10566 Pet. Br. 15-16) paragraph (2) of Article

36, which provides that “(tJhe rights referred to in paragraph 1 of this Article

shall be exercised in conformity with the laws and regulations of the receiving

State.” Once again, the term “rights” in this sentence does not refer to the

receiving State’s duty to provide a detainee with information about consular

access, which could not in any meaningful sense be “exercise|d|” by the

detainee, but instead to the underlying “rights” of notification and

communication.

service of the consul’s ability to “carr|y] out effectively” his

duties. /bid. Indeed, the ILC drafters stated their view that

“where a country did not carry out a provision of a convention,

it would naturally be estopped from invoking that provision

against other participating countries,” ibid., an understanding

that, whether accurate or not, was clearly at odds with any

supposed intent to create an enforceable individual right.

The subsequent debate between governmental delegates

to the United Nations Conference convened to negotiate the

Convention is to a similar effect. There was some disagree-

ment among the delegates whether Article 36 should require

mandatory notification to consular authorities or not require

any affirmative step by the receiving State. 1 Official Re-

cords, United Nations Conference on Consular Relations,

Vienna, 4 Mar. - 22 Apr. 1963, at 81-86, 336-340 (1963) (U.N.

Official Records). Numerous delegations objected, both in the

second committee session and the plenary meeting, to the

burden on the receiving State of requiring notification to the

consulate in all instances. /d. at 36-38 (Thailand, United

Arab Republic (7.e., Egypt), Japan, France), 82-83 (Egypt,

Canada, Ceylon), 337-340 (Japan, France, Republic of Korea,

Republic of Viet Nam, Thailand). Eventually, the Conference

adopted a compromise offered by twenty countries, including

many of those who had objected to the burden of mandatory

notification. See id. at 82. As the Egyptian delegate ex-

plained, the mandatory notification provision was changed to

provide for notification upon request of the detainee not with

an intent to enshrine in the treaty an individual right, but “to

lessen the burden on the authorities of receiving States, espe-

cially those which had large numbers of resident aliens or

which receive many tourists and visitors,” and would ensure

“that the authorities of the receiving State would not be

blamed if, owing to pressure or work or other circumstances,

19.

there was a failure to report the arrest of a national to the

sending State.” /bid.’

Other provisions of the Vienna Convention confirm that

the Convention adheres to the traditional understanding that

the agreement is intended for the benefit of the State parties,

not private individuals. The Convention’s preamble states

that “the purpose of [the] privileges and immunities [identi-

fied in the treaty} is not to benefit individuals, but to ensure

the efficient performance of functions by consular posts.” 21

U.S.T. at 79, 596 U.N.T.S. at 262. Although petitioners read

the preamble to refer only to provisions in the Convention

that define the privileges and immunities of consular officials

(05-51 Pet. Br. 32-33, 04-10566 Pet. Br. 17-19), and thus not two

the “rights” in Article 36, Article 36’s introductory clause

itself makes clear that that provision as well was designed

“(with a view to facilitating the exercise of consular func-

tions relating to nationals of the sending State.” Vienna Con-

vention, art. 36(1) (emphasis added). As the preamble and

Article 36’s introductory clause show, “the purpose of Article

36 was to protect a state's right to care for its nationals.” De

La Pava, 268 F.3d at 165.

Equally striking, there is no indication in the Vienna Con-

vention that the “rights” referred to in Article 36(1)(b) may be

privately enforced. To the contrary, the remedies for a viola-

tion of the “rignts” referred to in Article 36(1)(b) are the tra-

ditional means by which international disputes are resolved.

A foreign national’s government may protest the failure to

* Although the United States delegate stated in connection with the amend-

ment that it was intended “to protect the rights of the national concerned,” 1

U.N. Official Records 337 (para. 39) (statement of the United States delegate),

Bustillo errs (05-51 Pet. Br. 24-27) in relying on that statement. The “rights”

to which the American delegate referred were not rights created by treaty, but

“rights” that existed wholly independent of the draft convention, i.e¢., “the

freedom of action of the detained persons who might not wish their consulate

to be informed,” such as those seeking asylum, 1 U.N. Official Records 38 (para.

21).

observe the terms of Article 36 and attempt to negotiate a

solution. The governments of both Mexico and Honduras

have, in fact, presented their concerns about the treatment of

petitioners through diplomatic channels, and the United

States has apologized for its failure to fulfill its Vienna Con-

vention undertaking.

If traditional diplomatic channels fail to provide a satisfac-

tory resolution, the Optional Protocol establishes a mecha-

nism that States may choose for resolving disputes through

“judicial” means. Indeed, the United States has previously

sought resolution of such disputes by the ICJ, as have other

States who challenged the United States’ compliance with its

Vienna Convention obligations. By its express terms, how-

ever, the judicial mechanism provided by the Optional Proto-

col is voluntary. Some sixty percent of signatories to the Vi-

enna Convention do not subscribe to the Optional Protocol,

and the United States noticed its withdrawal in March 2005.

Only State parties, and not their nationals, may initiate ICJ

proceedings. Moreover, even when the ICJ has jurisdiction,

its ruling “has no binding force except between the parties

and in respect to that particular case,” Statute of the ICJ, art.

59, 59 Stat. 1062, and no individual is or can be “party” to a

proceeding under the Optional Protocol. The express provi-

sion of a limited and optional international judicial forum for

resolving Vienna Convention disputes further supports the

conclusion that the Vienna Convention did not, sub silentio,

create individual rights that were intended to be enforceable

by private individuals in domestic criminal proceedings.

The structure of Article 36 confirms that understanding.

The first protection extended is to consular officers, not to

individual nationals: Article 36(1)(a) specifies that “consular

officers shall be free to communicate with nationals of the

sending State and to have access to them.” The “rights” of

foreign nationals were deliberately placed underneath, 1 U.N.

Official Records 333 (Chilean delegate), signaling what the

introductory clause spells out - that the function of Article

36(1)(b) is not to create freestanding individual rights but to

facilitate a foreign state’s right to protect its nationals. And

on a practical level, a foreign nationai’s rights are necessarily

subordinate to, and derivative of, his country’s rights. An

individual may ask for consular assistance, but it is entirely

up to the sending State whether to provide it.

Petitioners contend (05-51 Pet. Br. 23; 04-10566 Pet. Rr.

16) that Article 36’s reference to the detainee’s “request! !” fur

notification of his consulate is proof that the Article was in-

tended to confer an individual right, rather than to facilitate

consular affairs. To the contrary, as noted above, see p. 18,

supra, the Egyptian delegate explained that the move away

from mandatory notice to the sending state was an attempt to

reduce the burden on the receiving State. Although some

delegates also expressed concern for the privacy interests of

detainees who might not want their home governments to

know of their detention, there was no indication that they

understood the shift from mandatory notification to create a

privately enforceable individual right. Notably, if a country

prefers automatic notice whenever one of its nationals is de-

tained, it may negotiate for such an agreement. In fact, the

United States has bilateral agreements with some 58 States

that are party to the Vienna Convention pursuant to which the

governments will notify each other of a national’s detention

irrespective of the individual’s wishes. See A553 (State De-

partment guidance that “[ilf the alien is from a ‘mandatory

notification’ country, notification must be given even if the

alien objects”); A53 (listing 58 “Mandatory Notification Coun-

tries,” including the United Kingdom, China, and Russia).°

Under petitioners’ view, the Vienna Convention, by bestowing

upon individual foreign nationals a personal right to decide

whether “to have his consulate notified or not” (05-51 Pet. Br.

* All citations to“A___” are to the Annexes to the Counter-Memorial of the

United States in Avena. The United States proposes to lodge the Counter-

Memorial and Annexes with the Court, if the Court so desires.

23; 04-10566 Pet. Br. 16), would supersede any previous

agreement that was inconsistent with such an individual right.

See Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam)

(noting later-in-time rule). Yet the United States continues

to recognize and enforce mandatory notification agreements

that were entered into before the Vienna Convention. See

A581 (recognizing continuing effect of agreements with the

United Kingdom and U.S.S.R. that entered into force before

the Vienna Convention became effective for the United

States).

C. The Vienna Convention’s Ratification History And Its

Construction By The Executive Branch Confirm That It

Was Not Understood To Have The Radical Effect Of Cre-

ating Individual Rights

The ratification history provides further evidence that

Article 36 does not create private rights that may be enforced

in a criminal proceeding in the domestic courts of the United

States. See United States v. Stuart, 489 U.S. 353, 366 (1989)

(ratification history is relevant in interpreting treaty); id. at

373 (Sealia, J., concurring) (accepting resort to extratextual

sources “when a treaty provision is ambiguous”). At the time

of ratification, the State Department informed the Senate that

“(t]he Vienna Consular Convention does not have the effect of

overcoming Federal or State laws beyond the scope long au-

thorized in existing consular conventions.” S. Exec. Rep. No.

9, supra, at 18. The Senate Foreign Relations Committee, in

turn, cited as a factor in its endorsement of the treaty that

“(t]he Convention does not change or affect present U.S. laws

or practice.” Jd. at 2. And, following ratification, the State

Department wrote a letter to aj! 50 governors explaining it

would not require “significant departures from the existing

practice within the several states of the United States.” Li,

206 F.3d at 64. That series of statements could not have been

made if the Convention were understood to give a criminal

defendant a private right to challenge his conviction and sen-

tence on the ground that he was not informed as required by

Article 36. See Letter from David R. Andrews, Legal Ad-

viser, Department of State, to James K. Robinson, Assistant

Attorney General, Criminal Division, U.S. Department of

Justice, Re: United States v. Li, No. 97-2034 (1st Cir.) (Oct.

15, 1999) (Li Letter); id. Attach. A, Department of State An-

swers to the Questions Posed by the First Circuit in United

States v. Nai Fook Li at A9 (State Department Answers).°

Of particular significance is the fact that the Executive

Branch does not view the Vienna Convention as creating a

right for a criminal defendant to challenge his conviction. The

Executive Branch’s interpretation of an international treaty

“is entitled to great weight.” Stuart, 489 U.S. at 369 (quoting

Sumitomo Shojo Am., Inc. v. Avagliano, 457 U.S. 176, 185

(1982)). The Executive Branch has never interpreted the

Vienna Convention to give a foreign national a judicially en-

forceable right to challenge his conviction and sentence. The

United States advised the Court of that interpretation in its

brief (at 18-23) in Breard v. Greene, 523 U.S. 371 (1998) (per

curiam) (No. 97-8214), and the State Department’s Answers

to the First Circuit’s questions in Li confirmed that the State

Department had consistently taken that position since the

first time the issue was raised by foreign governments in the

early 1990s. State Department Answers at Al. Most re-

cently, that view was reiterated in the Brief for the United

States in Medellin v. Dretke, 125 S. Ct. 2088 (2005) (per

curiam) (No. 04-5928).

* The State Department Answers and the Li Letter are reprinted in

Consular and Judicial Assistance and Related Issues: Consular Notification

and U.S. Criminal Prosecution: United States v. Nai Fook Li and United

States v. Lombera-Camorlinga, 2000 Digest chap. 2(A)(1), at 25-43 and is also

available at <http://www.state.gov/documents/organization/7111.doc>.

D. The Implementation Of Article 36, Both In The United

States And Abroad, Belies An Individual-Rights Inter-

pretation -

The ratification history and the State Department’s inter-

pretation accord with both the United States’ own practice in

enforcing the Vienna Convention and the practice of other

parties to the Convention. See Stuart, 489 U.S. at 366 (“sub-

sequent operation” of treaty is relevant in interpreting it). As

the Vienna Convention on the Law of Treaties reflects, trea-

ties should be interpreted “in accordance with the ordinary

meaning to be given to the terms of the treaty in their con-

text.” Vienna Convention on the Law of Treaties, May 23,

1969, art. 31(1), 1155 U.N.T.S. 331, 340." “[Tlogether with the

context,” treaty interpretation must take into account “any

subsequent practice in the application of the treaty which

establishes the agreement of the parties regarding its inter-

pretation.” /d., art. 31(3)(b), 1155 U.N.T\S. at 340.

The State Department’s longstanding practice has been to

investigate a country’s complaint about the absence of notifi-

cation. When a violation has been confirmed, the Department

has extended a formal apology to that country’s government

and sought to prevent a recurrence through educational ef-

forts. State Department Answers A3. It is the Department’s

understanding that “this is how consular notification issues

have always been handled by the United States under all of

the consular conventions to which it is a party, and in situa-

tions governed by customary international law.” /d. at A2-A3.

In cases involving the death penalty (and in one other con-

text), the Department has also requested that the violation be

' Although the United States has not ratified the Vienna Convention on the

Law of Treaties, the United States generally recognizes the Convention as a

valuable guide to principles of treaty interpretation. See, ¢.g., Fujitsu Ltd. v.

Federal Express Corp., 247 F.3d 423, 433 (2d Cir.), cert. denied, 534 U.S. 891

(2001).

considered in clemency.® Likewise, in cases of American citi-

zens detained abroad, United States consular officers “raise| ]

concerns about failures of consular notification through diplo-

matic channels or directly with the law enforcement officials

concerned.” /d. at A2. Thus, although the State Department

“sets a very high standard of assistance” for American citi-

zens detained abroad and aggressively addresses matters of

Article 36 compliance, United States consular officers “do not

seek judicial remedies for failures of consular notification” in

the host country’s criminal justice system, and the Depart-

ment is “unaware of any instance in which the United States

has asked a foreign court to undo a criminal proceeding based

on a failure of consular notification.” Jd. at A5.

The State Department’s experience abroad has been that

foreign governments also usually address complaints about

the failure of notification by investigating and extending apol-

ogies where appropriate. State Department Answers at A3.

* The United States has also taken substantial measures to implement the

Vienna Convention obligation to advise detained foreign nationals that they

may contact their consuls. The State Department publishes and has placed on

a public website <http://travel.state.gov/law/consular/consular_636.htmI>,

“Instructions for Federal, State, and other Local Law Enforcement and Other

Officials Regarding Foreign Nationals in the United States and the Rights of

Consular Officials to Assist Them,” including 24-hour contact telephone num-

bers that law enforcement personnel can use to obtain advice and assistance.

The Department also publishes the “Instructions” as a Consular Notification

and Access Manual, publishes a Consular Notification Pocket Card for potice

pocket use that has suggested advisories for complying with the Vienna

Convention and other consular conventions, publishes a 2-foot by 3-foot wall

poster that police can post in their facilities containing the consular notification

advisory in many languages (Arabic, Chinese, Cambodian, Creole, English,

Farsi, French, German, Italian, Japanese, Korean, Lao, Polish, Portuguese,

Russian, Spanish, Thai, and Vietnamese) <http://travel.state.gov/law/

info/info_626.htm]>, and makes a training video available. The State Depart-

ment regularly communicates with the States and law enforcement authorities

about ensuring compliance with the consular notification requirements of the

Convention.

As of 1999, the Department was not aware of any foreign

country that had remedied failures of notification through the

criminal justice process. /d. at Al, A8. While the Convention

has been in force for more than four decades, surveys of for-

eign decisions have uncovered only a handful of decisions that

even touch on the issue, even though 161 countries are now

parties to the Vienna Convention. None of these cases has

unambiguously endorsed a judicially enforceable individual

right to attack aconviction.’ Notably, briefs amici curiae have

* Petitioners do not cite a single instance in which they contend that a

foreign state has afforded recognition of an individual right under Article

36(1)(b) in the context of a criminal prosecution. Bustillo cites no example at

ali of foreign courts applying Article 36, and Sanchez-Llamas cites (04-10566

Pet. Br. 28) only Khadr v. Canada (Minister of Foreign Affairs) (2005) 2

F.C.R. D-25 (Can. Fed. Ct. 2004), a case in which a Canadian national detained

at Guantanamo Bay sought to compel Canada to provide consular assistance

based upon Canada’s purported promise of such assistance in a guide published

for Canadians abroad.

Neither do the foreign cases cited by petitioners’ amici indicate a foreign

practice of giving judicial recognition to individual rights under the Vienna

Convention in the context of criminal prosecutions. See Former U.S. Diplo-

mats Amici Br. 20-21 (citing a German case, Judgment of 7 Nov. 2001, BGHSt

5, 116 (A1956), which rejected a motion to exclude on the ground that the

Vienna Convention conferred no privileges beyond those accorded to Germans,

and a Canadian case, R. v. Partak, 2001 C.C.C. Lexis 312 (Ont. Super. Ct. of J.

Oct. 31, 2001) (A1964), which seems only to have assumed the existence of a

judicially cognizable right and declined to suppress statements); Nat’l Ass’n of

Crim. Def. Lawyers (NACDL) Amici Br. 21-22 (citing 2. v. Van Axel, (Snares-

brook Crown Ct. May 31, 1991) (A2006) and A. v. Bassil, (Acton Crown Ct. July

28, 1990) (A2008), in which the same British trial judge noted the lack of

consular notification, but appears to have suppressed confessions based on the

way in which consular notification requirements were incorporated into

domestic British statutory law and the fact that the defendants, who spoke little

English and were held incommunicado, might not to have understood their

rights); NACDL Amici Br. at 19-20 & n.1& (citing three Australian decisions,

R. v. Tan [2001] WASC 275 (W. Austl. Sup. Ct.) (unreported); 2. v. Su [1997|

1 V.R. 1 (Sup. Ct. Viet.); and Tan Seng Kiah vy. R. (2001) 10 NTLR 128(N. Terr.

Ct. Crim. App.), all of which discussed suppression of confessions as a matter

been filed in these cases on behalf of 36 nations that are par-

ties to the Vienna Convention. None of those countries identi-

fies a single instance in which their courts have recognized a

judicially enforceable individual right under the Vienna Con-

vention. State practice thus shows a glaring absence of pri-

vate judicial remedies in criminal cases for failures of con-

sular notification.

Finally, the government’s interpretation of the Vienna

Convention is consistent with how the United States has in-

terpreted similar language found in other treaties. For exam-

ple, the International Convention for the Suppression of the

Financing of Terrorism (Terrorist Financing Convention),

opened for signature Jan. 10, 2000, S. Treaty Doc. No. 49,

106th Cong., 2d Sess. (2000), 2178 U.N.T.S. 229, and the Inter-

national Convention for the Suppression of Terrorist Bomb-

ings (Terrorist Bombing Convention), opened for signature

Jan. 12, 1998, S. Treaty Doc. No. 6, 106th Cong., Ist Sess.

(1999), 2149 U.N.T.S. 284, provide:

3. Any person [detained in connection with terrorist fi-

nancing| shall be entitled to: (a) Communicate without

delay with the nearest appropriate representative of [his]

State * * * ; (b) Be visited by a representative of that

of the courts’ discretion to exclude evidence based on public policy concerns on

account of interrogators’ violation of numerous domestic statutes, including a

requirement to inform the suspect of his right to an attorney as well as to

contact his consulate, 1.¢., facts under which United States courts would also

have excluded the statements pursuant to Miranda). Other foreign decisions

from the same countries, not cited by petitioners, expressly hold that the

Vienna Convention does not confer individual rights. See Canada v. Van

Bergen |2000)261 A.R. 387,390 (2000) (A1982, A1986) (“The Vienna Convention

creates an obligation between states and is not one owed to the national.”); 2.

v. Abbrederis (1981) 1 N.S.W.L.R. 530, 543 (Ct. of Crim. App.) (Australia)

(A1987, A1995) (Article 36 “is dealing with freedom of communication between

consuls and their nationals. It says nothing touching upon the ordinary process

of an investigation by way of interrogation.”).

State; (c) Be informed of that person’s rights under sub-

paragraphs (a) and (b).

4. The rights referred to in paragraph 3 shall be exer-

cised in conformity with the laws and regulations of the

State in the territory in which the offender or alleged of-

fender is present, subject to the provision that the said

laws and regulations must enable full effect to be given to

the purposes for which the rights accorded under para-

graph 3 are intended.

Terrorist Financing Convention, art. 9, paras. 3 and 4, S.

Treaty Doc. No. 49, supra, at 7-8, 2178 U.N.T.S. at 234 (em-

phasis added); see also Terrorist Bombings Convention, art.

7 paras. 3 and 4, S. Treaty Doc. No. 6, supra, at 7-8, 2149

U.N.T.S. at 287-288. In its transmittal package, the Execu-

tive Branch explained that this language “like the Convention

as a whole as well as other similar counterterrorism conven-

tions, is not intended to create individual rights of action.” S.

Treaty Doc. No. 49, supra, at X.

E. The International Court of Justice’s Decisions Constru-

ing The Convention Do Not Overcome The Conclusions

Compelied By Principles Of Treaty Interpretation, The

Language And Purpose Of The Convention, And Its Im-

plementation History

The principle that the Court should give “respectful con-

sideration” to an international court’s interpretation of a

treaty, Breard, 523 U.S. at 375, does not lead to the conclusion

that Article 36 affords an individual a right to challenge his

conviction and sentence. Petitioners and their amici rely prin-

cipally upon two decisions of the ICJ, in Avena and the

LaGrand Case (Germany v. United States), 2001 1.C.J. 466

(Lagrand) (June 27). In LaGrand, the ICJ concluded that

“Article 36, paragraph 1, creates individual rights, which, by

virtue of Article I of the Optional Protocol, may be invoked in

this Court by the national State of the detained person.”

LaGrand, 2001 I.C.J. para. 77, at 494. That passage does not

state that Article 36 gives a foreign national a domestically

enforceable private right. Instead, consistent with the posi-

tion stated in this brief, it states only that, when there has

been a denial of a foreign national’s Article 36 rights, a State

may seek relief from the ICJ if the dispute is subject to that

body’s jurisdiction.

LaGrand also concluded that, because the United States

failed to inform the LaGrand brothers of their rights as re-

quired by Article 36(1), its later application of a procedural

default rule to refuse to consider their claim of prejudice aris-

ing from that breach violated Article 36(2)’s requirement that

the laws of the receiving State must enable “full effect to be

given to the purposes for which the rights accorded under this

article are intended.” 2001 I.C.J. para. 91, at 497-498. That

conclusion presupposes that either Article 36(1)’s reference to

“rights” or Article 36(2)’s “full effect” requirement, or the two

together, create an obligation for criminal courts to attach

“legal significance” to a violation of Article 36(1) in a criminal

proceeding even in the face of contrary domestic-law princi-

ples of default. See ibid.; Avena, 2004 I.C.J. para. 113, at 57.

That understanding, however, is inconsistent with the lan-

guage and structure of Article 36 of the Vienna Convention in

its context as well as the understanding and implementation

of the parties to the Convention.

While the ICJ’s understanding of the Convention's re-

quirements is entitled to respectful consideration, the ICJ

does not exercise any judicial power of the United States, and

it is ultimately the responsibility of this Court to interpret the

Vienna Convention as a matter of federal law. See Williams

v. Taylor, 529 U.S. 362, 378-379 (2000); Northern Pipeline

Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59

(1982). The United States is obligated under international law

to comply with the judgment of the ICJ in any case to which

it is a party and the President has taken unprecedented ac-

tion, pursuant to his constitutional and statutory authority,

see p. 44 & n. 17, infra, to ensure compliance with the IC.J's

judgment in Avena by determining that the convictions and

sentence of the 51 Mexican nationals covered by that judg-

ment receive review and reconsideration. The United States

has no obligation to accept the reasoning underlying the ICJ's

judgments, however, or to apply that reasoning in other cases.

As we have demonstrated, the ICJ’s reasoning is inconsistent

with principles of treaty construction, including the need to

construe treaty terms “in their context,” “together with * * *

[aJjny subsequent practice in the application of the treaty

which establishes the agreement of the parties regarding its

interpretation.” Vienna Convention on the Law of Treaties,

art. 31(1), (3)(b), 1155 U.N.T.S. at 340. Moreover, the weight

to be given an ICJ judgment is at its nadir where, as here, the

Executive Branch, whose views on treaty interpretation are

entitled to at least “great weight,” has considered the ICJ’s

decisions and determined that its own longstanding interpre-

tation of the treaty is the correct one. Notably, the with-

drawal of the United States from the Optional Protocol will

ensure that the United States incurs no further international

legal obligations to review and reconsider convictions and

sentences in light of violations of Article 36 based on the ICJ's

interpretation of the Convention. Under these circumstances

and in light of the considerations discussed above, this Court

should conelude that Article 36 does not give criminal defen-

dant a private right to challenge his conviction and sentence

on the ground that Article 36 was breached."

Although Sanchez-Llamas relies on a “presumption in favor of uniform

treaty interpretation,” 04-10566 Pet. Br. 28, as a basis for this Court to adopt

the ICJ’s reasoning in Avena, what is notable is the stark absence of other

countries affording the kind of judicial remedy Sanchez-Llamas seeks. See pp.

26-27, supra.

Il. THE SUPPRESSION OF EVIDENCE IS NOT AN AVAIL-

ABLE REMEDY FOR A VIOLATION OF ARTICLE 36’S

CONSULAR NOTIFICATION PROVISION

If the Court confirms the Executive Branch’s longstand-

ing interpretation of the Vienna Convention as not creating

judicially enforceable rights, its decision need go no further.

However, even assuming arguendo that Article 36(1)(b) does

confer individual rights on foreign national detainees, the

violation of those rights would not warrant suppression of

statements made by a detainee who was not informed about

his right to contact his consular officials. Nothing in the

treaty even remotely suggests that such a remedy is required,

and this Court has no supervisory authority to impose an

exclusionary rule remedy on the States.

A. The Court’s Authority To Impose Exclusionary Rules

On The States Is Highly Circumscribed

As this Court has recognized, exclusionary rules “impose| |

significant costs” by “preclud{ing| consideration of reliable,

probative evidence,” which both “undeniably detracts from

the truthfinding process and allows many who would other-

wise be incarcerated to escape the consequences of their ac-

tions.” Pennsylvania Bd. Of Probation & Parole v. Scott, 524

U.S. 357, 364 (1998). Because of the high social costs of

exclusionary rules, the Court has admonished that suppres-

sion should be “restricted to those areas where its remedial

objectives are most efficaciously served,” and that an “un-

bending application of the exclusionary sanction to enforce

ideals of governmental rectitude would impede unacceptably

the truth-finding functions of judge and jury.” United States

v. Payner, 447 U.S. 727, 736 (1980) (internal quotation marks

omitted).

The Court has fashioned and applied exclusionary rules to

state criminal] proceedings to protect federal constitutional

rights. Dickerson v. United States, 530 U.S. 428, 444 (2000)

(explaining application of Miranda to state courts on ground

that “Miranda announced a constitutional rule” based in the

Fifth Amendment); Mapp v. Ohio, 367 U.S. 643 (1961)

(exclusionary rule for evidence obtained in violation of the

Fourth Amendment). Payne v. Arkansas, 356 U.S. 560, 568

(1958) (exclusionary rule for involuntary confessions under

due process principles). These constitutionally based rules of

suppression apply equally to proceedings in state court as to

those in federal court. See Dickerson, 530 U.S. at 438.

In addition, the Court requires the exclusion of evidence

when Congress itself has mandated suppression as the rem-

edy for a statutory violation. See United States v. Giordano,

416 U.S. 505, 526-527 (1974) (requiring exclusion under 18

U.S.C. 2515). If the statute so provides, the rule would also

bind the States under the Supremacy Clause. See, e.g., 18

U.S.C. 2515 (no intercepted communication “may be received

in evidence in anytrial * * * before any court * * * of the

United States, a State, or a political subdivision thereof if the

disclosure of that information would be in violation of this

chapter”). The Court has made clear however, that, as a gen-

eral matter, non-constitutional violations do not warrant the

suppression of evidence. See United States v. Caceres, 440

U.S. 741, 754-755 (1979) (because agent’s violation of agency

regulations did not contravene the defendant’s constitutional

rights in any respect, “our precedents enforcing the exclu-

sionary rule to deter constitutional violations provide no sup-

port for the rule’s application in this ease”).'’ And the Court

'' Consistent with this Court's constitution-based approach to the exclusion-

ary rule, the courts of appeal have repeatedly declined to order the suppression

of evidence as a remedy for a violation of a federal statute or regulation that

does not implicate constitutional rights, in the absence of a convincing showing

that such aremedy was intended by Congress. See, e.g., l/nited States v. Ware,

161 F.3d 414, 424 (6th Cir. 1998) (“[s]tatutory violations, absent underlying

constitutional violations or rights, are generally insufficient to justify imposition

of the exclusionary rule”), cert. denied, 526 U.S. 1045 (1999); United States v.

Ani, 138 F.3d 390, 392-393 (9th Cir. 1998) (violation of regulation governing

opening of international letter mail should not be remedied through

recently emphasized that “lilt is beyond dispute that [this

Court] dofes} not hold a supervisory power over the courts of

the several States.” Dickerson, 530 U.S. at 438.

Sanchez-Llamas contends (04-10566 Pet. Br. 37) that the

Court possesses the inherent power to suppress evidence

“where the integrity of the criminal proceeding was jeopar-

dized,” which, he asserts, justifies the Court in fashioning a

suppression remedy here. But the cases he cites do not sup-

port a broad power for the Court to create and impose on the

States an exclusionary rule for Vienna Convention violations

when no such rule is expressed in the treaty’s text. See 04-

10566 Pet. Br. 37-38 (discussing Miller v. United States, 357

U.S. 301, 313 (1958), McNabb v. United States, 318 U.S. 332

(1943), and Mallory v. United States, 354 U.S. 449 (1957)).

In Miller, federal agents made a warrantless entry of a

home to effect an arrest without knocking and announcing

their presence. While no federal statute governed that action,

the government conceded that the entry should be judged by

the standards set out in the statute governing entries to exe-

cute a search warrant, 18 U.S.C. 3109. Because solely a fed-

eral prosecution was involved, and because Section 3109 does

nut itself provide for the exclusion of evidence, the Court’s

exclusion of evidence in that case is best understood as an

exercise of supervisory power over the federal courts. Miller

suppression); United States v. Mason, 52 F.3d 1286, 1289 n. 5 (4th Cir. 1995)

(fact that Customs Service agent was not statutorily authorized to conduct

search did “not rise to the level of a constitutional violation warranting sup-

pression of the evidence”); United States v. Benevento, 836 F.2d 60, 69-70 (2d

Cir. 1987) (violation of 31 U.S.C. 5317(b), requiring Customs agent to have rea-

sonable suspicion to search luggage at port of entry for currency, did not

warrant suppression), cert. denied, 486 U.S. 1043 (1988) (overruled on other

grounds, l/nited States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989), cert. denied,

493 U.S. 811 (1989)); United States v. Hensel, 699 F.2d 18, 29-30 (1st Cir.)

(Breyer, J.) (violation of regulation, statute, and rule of international law prohi-

biting search of foreign flag vessel without consent of flag state did not warrant

suppression), cert. denied, 461 U.S. 958 and 464 U.S. 823 and 824 (1983).

therefore stands as no authority for the Court to create an

exclusionary rule that is binding on the States."*

Similarly, as Sanchez-Llamas acknowledges (04-10566 Pet.

Br. 39), the McNabb-Mallory line of cases, under which the

Court excluded statements made by a suspect who was not

presented to a magistrate promptly after his arrest, was

adopted “ijn the exercise of [the Court’s} supervisory author-

ity over the administration of criminal justice in the federal

courts.” McNabb, 318 U.S. at 341. That rule therefore does

not—indeed, cannot—apply to state criminal proceedings.

See Dickerson, 530 U.S. at 438; ef. United States v. Alvarez-

Sanchez, 511 U.S. 350 (1994) (holding that 18 U.S.C. 3501(c),

by which Congress modified, and perhaps repudiated, the

McNabb-Mallory line of cases, is “not triggered” “(als long as

a person is arrested and held only on state charges by state or

local authorities”). Plainly, then, Sanchez-Llamas is incorrect

when he relies on the “Miller and the McNabb-Mallory line

of cases” to support the conclusion that “suppression is the

appropriate remedy for an Article 36 violation” in state crimi-

nal proceedings. 04-10566 Pet. Br. 41."°

"To the extent that violations of knock-and-announce principles may

support the exclusion of evidence in state courts, cf. Hudson v. Michigan, cert.

granted, 125 S. Ct. 2964 (2004) (No. 04-1360), it is because the “principle of

announcement” “is an element of the reasonableness inquiry under the Fourth

Amendment.” Wilson v. Arkansas, 514 U.S. 927, 984 (1995).

‘’ Moreover, even in a federal criminal proceeding, the imposition, over the

objection of the Executive Branch, of a remedy not expressly provided in the

text of a treaty but designed to enforce the treaty would be a peculiarly inap-

propriate use of the judiciary’s supervisory powers. The Executive Branch has

the primary responsibility for ensuring compliance with the VCCR and is in the

best position to assess what steps ure appropriate to promote compliance and

ensure reciprocal treatment of United States citizens abroad. Just as the sup-

ervisory authority of the courts must yield to a contrary congressional

enactment in the domestic context, Dickerson, 530 U.S. at 437, the supervisory

power would be inappropriate in light ef a contrary executive branch determi-

nation concerning the steps necessary to ensure compliance with a treaty.

. 35

B. There Is No Basis For Construing The Vienna Conven-

tion As Incorporating An Implied Suppression Remedy

Because the Court cannot impose an exclusionary rule on

the States as a matter of its supervisory authority, Dickerson,

~530 U.S. at 438, the only basis for this Court to require sup-

pression of petitioner’s constitutionally-obtained statements

in his state court criminal trial would be a finding that the

Vienna Convention itself requires suppression. But it would

be strange to attribute to the drafters of the Vienna Conven-

tion an intention to adopt a global exclusionary rule to apply

whenever a receiving State failed to give the information re-

quired in Article 36(1)(b). Courts of other nations rarely ex-

cluded evidence (apart from involuntary confessions) from

their criminal trials as a sanction for police conduct. See

Roper v. Simmons, 125 S. Ct. 1183, 1226-1227 (2005) (Sealia,

J., dissenting). Even in the United States, the exclusion of

voluntary confessions because of the absence of constitu-

tionally-based warnings was yet three years in the future at

the time that the Vienna Convention was drafted in 1963. An

exclusionary sanction for breach of a notification requirement

would thus have been very novel indeed for an international

conference of treaty negotiators. “There is no reason to think

the drafters of the Vienna Convention had these uniquely

American rights |to suppression of unwarned statements] in

mind, especially given the fact that even the United States

Supreme Court did not require Fifth and Sixth Amendment

post-arrest warnings until it decided Miranda in 1966, three

years after the treaty was drafted.” United States v.

Lombera-Camorlinga, 206 F.3d 882, 886 (9th Cir.) (en banc),

cert. denied, 531 U.S. 991 (2000). See Craig M. Bradley,

Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375 (2001) (not-

ing several countries that have adopted Miranda-type sup-

pression rules only very recently); J. B. Dawson, The Exclu-

sion of Unlawfully Obtained Evidence: A Comparative Study,

31 Int'l Comp. L.Q. 513, 534-535 (1982) (noting that exclusion

of voluntary statements on the basis of a right against self-

incrimination was not recognized in England until 1979).

1. Neither the text nor structure of the Convention sug-

gests that the drafters intended suppression of evi-

dence as a remedy for violations of Article 36(1)

“(T]he Vienna Convention itself prescribes no judicial

remedy or other recourse for its violation.” United States v.

Ademaj, 170 F.3d 58, 67 (1st Cir.), cert. denied, 528 U.S. 887

(1999). There is nothing in the text of Article 36(1)(b) that

suggests a suppression remedy. Indeed, there is no reference

at all in Article 36(1)(b) to the collection or introduction of

evidence. Thus, petitioner's argument is only that Article

36(1)(b) somehow implies a suppression remedy. As noted,

international law rarely specifies private remedies, particu-

larly not at the level of detail presumed by petitioner. See 2

Restatement (Third) of Foreign Relations pt. [X, introductory

note at 339 (“Many obligations under international law benefit

private persons * * * but the principal remedies for viola-

tion of these obligations are interstate only; international

private remedies for violations of international law are still

rare.”).

Notably, the ICJ’s decision in Avena did not purport to

identify a specific remedy beyond review and reconsideration

that the United States was required to afford, even under the

ICJ’s individual-rights-creating view of Article 36. The ICJ

thus stated that it was “not to be presumed * * * that par-

tial or total annulment of conviction or sentence provides the

“ The courts of appeals that have addressed the issue have uniformly

concluded that suppression of evidence is not an appropriate remedy for a

violation of any individual rights that may be created by Article 36. See, e.g.,

United States v. Minjares-Alvarez, 264 F.3d 980, 986-987 (10th Cir. 2001);

“Jimenez-Nava, 243 F.3d at 198-200; United States v. Page, 232 F.3d 536, 540

(6th Cir. 2000), cert. denied, 5382 U.S. 935, 1023, and 1056 (2001); United States

v. Chaparro-Alcantara, 226 F.3d 616, 621-622 (7th Cir. 2000), cert. denied, 531

U.S. 1026 (2001); United States v. Lombera-Camorlinga, 206 F 3d at 885; Li,

206 F.3d at 61.

necessary or sole remedy” for the Article 36 violations that it

found. Avena, 2004 I.C.J. para. 123 at 60. Indeed, the ICJ

specifically cautioned that its decision did not, as Mexico un-

successfully urged, mandate imposition of the domestic

exclusionary rule in the case of Article 36 violations. /d.

para. 127, at 61.

Sanchez-Llamas’s contention that an exclusionary rule is

implicit in the Vienna Convention requires a number of un-

warranted inferential leaps. Most significantly, his contention

(04-10566 Pet. Br. 45) that Article 36 “safeguard|s] a foreign

national’s privilege against self-incrimination” rests implicitly

on the view that there is some nexus between a foreign de-

tainee’s invocation of his right to contact his consulate and a

right to avoid self-incrimination or police interrogation. But

there is no such connection. Indeed, it is highly unlikely that

the Convention’s drafters would have been attuned to self-

incrimination concerns, since “|t]here is nothing comparable

to the Fifth Amendment privilege in any supranational prohi-

bition against compelled self-incrimination derived from any

source, the privilege being ‘at best an emerging principle of

international law.” United States v. Balsys, 524 U.S. 666, 695

n.16 (1998) (quoting Diane M. Amann, A Whipsaw Cuts Both

Ways: The Privilege Against Self-Incrimination in an Inter-

national Context, 45 UCLA L. Rev. 1201, 1259 (1998)). And

Miranda provides no analogy here. Miranda protects the

right against self-incrimination by prohibiting introduction of

statements resulting from custodial interrogation when a sus-

pect has not been warned of his right against self-incrimina-

tion. Dickerson, 530 U.S. at 435. The Vienna Convention

contains no such prohibition—it provides a right to consular

notification, not a right against self-incrimination or to be free

from interrogation. See Lombera-Camorlinga, 206 F.3d at

886 (“the treaty does not link the required consular notifica-

tion in any way to the commencement of police interrogation”

or “to cease interrogation once the arrestee invokes his right”

to have his consulate notified); United States v. Ortiz, 315

F.3d 873, 887 (8th Cir. 2002) (“the Vienna Convention does not

require that interrogation cease until consular contact is

made”), cert. denied, 538 U.S. 1042 (2003) and 540 U.S. 1073

(2003); Jimenez-Nava, 243 F.3d at 199 (same). Nor can such

Miranda, a foreign national has no right to insist that his

consulate provide him with any assistance whatsoever. That

is entirely within the discretion of the sending State.

The fact that the sending State is under no obligation to

provide assistance would, in most cases, make entirely specu-

lative any determination whether the defendant had been

prejudiced by his lack of awareness about Article 36. Any

attempt to muster concrete evidence would create its own

problems. Detainees would presumably need to obtain testi-

mony or other evidence from the sending State’s consular

officers and employees to prove their claims, yet those offi-

cials are immune from the court’s jurisdiction, Vienna Con-

vention, art. 43, 21 U.S.T. at 104, 596 U.N.T-.S. at 298, and -

“under no obligation to give evidence concerning matters con-

nected with the exercise of their function,” Vienna Conven-

tion, art. 44(3), 21 U.S.T. at 105, 596 U.N.T.S. at 298. Finally,

even if the officials agreed to provide testimony, any judicial

inquiry might easily embroil the courts in making rulings that

could embarrass foreign governments (by concluding, for

example, that testifying consular officers were not credible or

that the consular post would not have provided meaningful

consular assistance to its nationals). Thus, the remedy pro-

posed by petitioner would end up undermining, rather than

furthering, the central purpose of the Convention, “the pro-

motion of friendly relations among nations.” Vienna Conven-

tion, 21 U.S.T. at 79, 596 U.N.T.S. at 262; see Zschernig v.

Miller, 389 U.S. 429, 440 (1968) (recognizing danger inherent

in statutory scheme that “seems to make unavoidable judicial

criticism” of some nations).

_ —

2. A suppression remedy would be inconsistent with the

implementation practices of the State parties to the

Convention

Any suggestion that interrogation of a foreign national

must stop until the consulate has been notified and made a

determination whether to provide assistance (and, if so, to

make arrangements for assistance to be provided) is wholly

inconsistent with the practice of the States that are parties to

the treaty, including approved practices in the United States.

See, e.g., Vienna Convention of the Law of Treaties, art.

31(3)(b), 1155 U.N.T.S. at 340 (emphasizing importance of

“subsequent practice in the application of the treaty” in inter-

preting a treaty’s meaning). The State Department, for ex-

ample, informs police that foreign nationals should be “ad-

vised of the possibility of consular notification by the time the

foreign national is booked for detention,” U.S. Dep’t of State,

Consular Notification and Access 20 (A552), which may, of

course, happen after interrogation of the foreign national has

given police a basis for making a charge, and the State De-

partment indicates that notice to the consulate, if requested,

would “normally * * * have been made within 24 hours, and

certainly within 72 hours” of the request, zbid., by which time

interrogation will be completed in many, if not most, cases.

Such guidelines provide far more time for notification of con-

sular officials than would be allowed if such notification were

intended to ensure consular assistance could be provided be-

fore the detainee made a knowing decision whether to cooper-

ate in police interrogation. See id. at 47-49 (A579-A581) (bi-

lateral mandatory notification agreements recognizing that

notice to the consulate could take a matter of days).

The practice of othér signatory nations makes the discon-

nect between consular notification and limitations on interro-

gation even more obvious. The idea that the receiving State’s

failure to inform a foreign national of his ability to seek con-

sular assistance would lead to the exclusion of the national’s

statements from trial would have come as a considerable sur-

prise to many of the participants at the diplomatic conference,

whose criminal justice systems were (and are) quite different

from our own. For example, several parties to the Vienna

Convention do not permit access to foreign detainees by their

consular officials during the initial period of interrogation.

According to the Declaration of Assistant Secretary of State

Harty, submitted in the Avena matter, “France does not per-

mit U.S. consular officials to have access to U.S. citizen de-

tainees while they are in police custody.” Harty Decl. 9

(A385). Similarly, several countries “do not permit consular

access until at least initial questioning is completed” (China,

Italy, Panama), or, in other cases, during an initial period of

“jncommunicado detention” (Argentina, Belgium, and Spain).

Id. at 9-10 (A385-A386). Indeed, in many of these countries

“suspects can be held by the police for substantial periods of

time without having access even to legal counsel.” Prof.

Thomas Weigend Decl in Avena 3 (A363) (citing Argentina,

China, France, and Japan). See also id. at 5 (A365) (noting

that suppression of reliable, voluntary statements as a form

of retaliation for violating procedural rules “does not * * *

comport with legal systems operating under * * * the ‘inquis-

itorial’ mode of fact-finding” in which “it is the court’s respon-

sibility to find the truth regardless of the activity or passivity

of the prosecution and the defense”).

3. The Senate did not intend for the Court to adopt a

suppression remedy for Vienna Convention violations

In view of Congress’s response to Miranda and other

decisions of this Court authorizing the exclusion of voluntary

confessions in circumstances with a clear nexus between the

right and the remedy, it is virtually inconceivable that the

Senate would have given its advice and consent to the Vienna

Convention if it had understood that a breach of the consular-

notification requirement would result in the exclusion of vol-

untary confessions. Two years after the Miranda decision—

and just one year before giving its advice and consent to the

ratification of the Vienna Convention—Congress enacted 18

U.S.C. 3501, which was intended to overrule Miranda and

restore a pure voluntariness standard for the admissibility of

confessions in federal court. Dickerson, 530 U.S. at 435-436.

Notably, the Senate Report on Section 3501 was also particu-

larly critical of the exclusionary rule adopted in Mallory,

which Sanchez-Llamas cites (04-10566 Pet. Br. 37-38) as an

example of the Court’s inherent authority to append an

exclusionary rule to a federal statute, but which the Senate

sought to “abrogat[e].” S. Rep. No. 1097, 90th Cong., 2d Sess.

40 (1968). See id. at 38 (citing “need{] to offset the harmful!

effects of the Mallory case”).

In place of Miranda and Mallory, Congress prescribed a

test that made voluntariness the linchpin of admissibility,

after consideration of the totality of the circumstances, with

the specific goal of avoiding inflexible rules. See 18 U.S.C.

3501(a)."” It ean hardly be believed that the Senate, only a

year later, voted without any comment to establish a different

inflexible rule that would exclude an otherwise voluntary con-

fession in the context of an underlying “right” to consular

notification, not a right to be free of involuntary self-incrimi-

nation. It is more likely that the Senate would have intended

that a foreign national’s “lack [of] a basic understanding of

the American legal system” and “[inJability to communicate

in English” (N.Y.C. Bar Ass’n Amicus Br. 17) would be factors

in answering the more fundamental! question whether his

statement was voluntary.

"This Court held in Dickerson that Section 3501(a) could not displace

Miranda's constitutionally based rule. That holding does not undercut the

relevance of Section 3501 in assessing the Senate’s likely understanding that

Article 36 would not threaten the admissibility of voluntary confessions in

federal and state prosecutions or the validity of Section 3501 in overriding the

supervisory rule adopted in Mallory.

42 an

Ill. THE VIENNA CONVENTION DOES NOT PRECLUDE

APPLICATION OF PROCEDURAL DEFAULT PRINCI-

PLES

Even if Article 36 did create individually enforceable

rights, and even if those rights were enforceable in the con-

text of the national’s criminal trial, the Convention would still

not preclude Virginia from applying its procedural default

rules to Bustillo’s Vienna Convention claim. Virginia’s long-

established rule that a defendant’s failure to raise a claim at

trial or on direct review bars the defendant from presenting

the claim on collateral review is an adequate and independent

ground that will support a state habeas court’s judgment. See

Wainwright v. Sykes, 433 U.S. 72 (1977). Because, “[i]n the

context of direct review of a state court judgment, the inde-

pendent and adequate state ground doctrine is jurisdictional,”

this Court “has no power to review a state law determination

that is sufficient to support the judgment.” See Coleman v.

Thompson, 501 U.S. 722, 729 (1991). Bustillo’s sole argument

in this Court for avoiding Virginia’s procedura! bar rule is

that the Vienna Convention precludes application of that doc-

trine to his Article 36 claim. That argument lacks merit.

A. This Court's Decision In Breard Is Controlling And

Should Not Be Overturned

This Court, in fact, already considered and resolved that

issue of treaty interpretation in Breard,in which, as here, the

defendant failed to raise a Vienna Convention claim at trial or

on appeal. The Court rejected as “plainly incorrect” the no-

tion that the Vienna Convention “trumps the procedural de-

fault doctrine,” and held, to the contrary, that the procedural

rules of the forum State, including rules on procedural de-

fault, govern implementation of the Vienna Convention.

Breard, 523 U.S. at 375. As the Court noted, “although trea-

ties are recognized by our Constitution as the supreme law of

the land, that status is no less true of provisions of the Consti-

tution itself, to which rules of procedural default apply.” /d.

at 376. Moreover, while acknowledging both a preliminary

ICJ order related to the defendant and the principle that

courts in the United States should give “respectful consider-

ation to the interpretation of an international treaty rendered

by an international court with jurisdiction to interpret [it],”

the Court indicated in Breard that such “respectful consider-

ation” was conditioned by the background international law

principle that, “absent a clear and express statement to the

contrary, the procedural rules of the forum State govern the

implementation of the treaty in that State.” Jd. at 375."

As the Court has noted, that background principle “is em- |

bodied in the Vienna Convention itself,” Breard, 523 U.S. at

375, as Article 36(2) expressly provides that Article 36 rights

“shall be exercised in conformity with the laws and regula-

tions of the receiving State,” ibid. (quoting Vienna Conven-

tion, art. 36(2)). Because “i]t is the rule in this country that

assertions of error in criminal proceedings must first be rai-

sed in state court in order to form the basis for relief in ha-

beas,” this Court concluded that Article 36(2) reinforced,

rather than defeated, the principle that domestic procedural

default rules apply with regard to forfeited Vienna Conven-

tion claims. /bid. Accordingly, the Court in Breard held that,

having “failed to exercise his rights under the Vienna Conven-

tion in conformity with the laws of the United States and the

Commonwealth of Virginia,” Breard “cannot raise a claim of

violation of those rights now on habeas review.” Jd. at 375-

376.

Petitioner urges the Court to revisit and overrule its

Breard holding on the grounds that the ICJ, in LaGrand and

' At the time of the Court’s Breard decision, the ICJ had not yet issued its

decisions in LaGrand or Avena. The IC.J had, however, issued an order

“requesting that the United States ‘take all measures at its disposal to ensure

that * * * Breard is not executed pending the final decision in these pro-

ceedings.” 523 U.S. at 374. In spite of the ICJ's order, the Court issued an

order denying any relief to Breard, finding that his argument that the Vienna

Convention trumped state procedural bar rules “plainly incorrect.” /d. at 375.

Avena, disagreed, and the President later directed the States

to take actions to implement the Avena decision. The Presi-

dent’s decision to implement the ICJ’s Avena judgment in the

cases of those individuals addressed in Avena does not, con-

trary to petitioner’s understanding (05-5] Pet. Br. 44), have

any relevance to his case. The President’s decision to imple-

ment the Avena judgment was not based on an interpretation

of the Vienna Convention. Rather, it was based on the Presi-

dent’s constitutionally based foreign affairs power, American

Ins. Ass'n, 539 U.S. at 414, and other treaties and statutes."”

And a determination to comply with an ICJ decision does not

require agreement with the ICJ’s treaty interpretation. In-

deed, the President’s determination was made contemporane-

ously with the United States’ brief amicus curiae in Medellin,

in which the United States specifically disputed the correct-

ness of the interpretation of Article 36 that underlay the ICJ’s

Avena decision. The President’s determination offers no ba-

sis for this Court to revisit its earlier holding as to Article

36(2)’s meaning.

Nor do the ICJ’s LaGrand and Avena decisions warrant

reconsideration of the Court's holding in Breard. The ICJ

reasoned that applying the procedural default rule to bar con-

sideration of a challenge to a defendant's conviction and sen-

tence violates Article 36(2)’s requirement that laws of the

forum state “must enable full effect to be given to the pur-

poses for which the rights accorded under this Article are

intended.” LaGrand, 2001 1.C.J. para. 91, at 497-498. But this

Court already considered Article 36(2)’s “full effect” language

" The President's decision to comply with the ICJ decision rested on his

authority to implement the United States’ obligations under United Nations

—harter (which is itself a ratified treaty), including the undertaking to comply

with the judgment of the ICJ in cases to which the United States is a party,

United Nations Charter, art. 94, 59 Stat. 1051, and his constitutional and

statutory (under the United Nations Participation Act, 22 U.S.C. 287, 287a)

responsibility to direct all functions connected with the participation of the

United States in the United Nations. including the ICJ.

in Breard and concluded, correctly, that it does not “trump[]

the procedural default doctrine.” 523 U.S. at 375. Application

of the procedural default rule to an Article 36 claim no more

prevents “full effect” from being given to the Convention’s

purposes than application of the same rule prevents full effect

from being given to the purposes of constitutional rights, such

as the right against compelled self-incrimination. See Breard,

523 U.S. at 376 (AEDPA procedural rule governs “Breard’s

ability to obtain relief based on violations of the Vienna Con-

vention * * * just as any claim arising under the United

States Constitution would be”); Yist v. Nunnemaker, 501 U.S.

797, 801 (1991) (procedural default applies to Miranda

claims); Wainwright v. Sykes, 433 U.S. at 87-88 (procedural

default applies to voluntariness claims).

The ICJ’s decisions in LaGrand and Avena are clearly not

binding on this Court in this case. Quite apart from this

Court’s independent authority to declare the meaning of the

treaty, Article 59 of the Statute of the ICJ says that its deci-

sions are binding only “between the parties and in respect of

that particular case.” Stat. of the ICJ, 59 Stat. 1062. More-

over, the United States’ undertaking under Article 94 of the

United Nations Charter, 59 Stat. 1051, to comply with a deci-

sion of the ICJ in a dispute to which it is a party, is to comply

with the ICJ’s ultimate resolution of the dispute, not to accept

all the reasoning that leads to that resolution. In this case,

the ICJ’s reasoning is not persuasive. In LaGrand, the ICJ’s

reasoning on this point was no more than a mere statement

that, “the procedural default rule prevented |counsel| from

attaching any legal significance to the fact * * * that the

violation of * * * Article 36, paragraph 1, prevented Ger-

many, in a timely fashion, from retaining private counsel for

them and otherwise assisting in their defence as provided for

by the Convention,” and, therefore, “the procedural default

rule had the effect of preventing ‘full effect [from being]

given” to Article 36(1)(b). LaGrand, 2001 1.C.J. para. 91, at

497-498. By that reasoning, any procedural rule that pre-

vented a court from deciding the substance of a Vienna Con-

vention claim—such as a State’s statute of limitations for

seeking collateral review—would have to be set aside as in-

consistent with Article 36(2). As this Court held in Breard,

_ 523 U.S. at 375, there must be a far more “clear and express

statement” before a treaty will be construed to require the

forum State to set aside all such procedural rules—parti-

cularly when, as here, the Convention’s own terms provide

that its rights must be exercised “in conformity with the laws

and regulations of the receiving State.” Vienna Convention,

art. 36(2).

B. Nothing About Vienna Convention Claims Takes Them

Outside The Procedural Bar Rule

Bustillo alternatively contends (05-51 Pet. Br. 39-42) that

Vienna Convention claims are different from most challenges

to a criminal trial because the facts and issues can only be

fully developed on collateral review. Petitioner relies on

Massaro v. United States, 538 U.S. 500 (2003), in which the

Court held, as a matter of its supervisory authority, zd. at 504,

that ineffective assistance of counsel claims “may be brought

in the first instance in a timely motion in the district court

under [Section] 2255 * * * whether or not the petitioner

could have raised the claim on direct appeal,” 7b:d. Consular

notification claims, however, are markedly different from

ineffective assistance of counsel claims, and the rationale that

supports Massaro does not support a similar rule here.

If a defendant’s Vienna Convention claim seeks, as

Sanchez-Llamas does, suppression of evidence, the issues

(assuming the availability of the remedy) would be nearly

indistinguishable from a motion to suppress under Miranda

or Mapp. It would be far more efficient to litigate that evi-

dentiary issue before trial, rather than on habeas review,

when any relief would require yet another round of litigation.

If, as in Bustillo’s case, the claim concerns delay in obtaining

assistance from the consulate that could have produced evi-

dence at trial, again, it would be far better to litigate the ques-

tion of a violation at trial, when a continuance would allow a

(belatedly informed) consulate to provide any assistance it

might be willing to offer.

A Vienna Convention claim is wholly unlike a claim of inef-

fective assistance of counsel. Trial counsel who performed

deficiently cannot reasonably be expected to note his deficient

performance by way of a contemporaneous objection or to

make a record showing that his unprofessional actions or

omissions prejudiced his client. As this Court explained, even

if the defendant has new counsel on direct appeal, it would be

judicially “inefficient” to require new counsel to raise for the

first time ineffective assistance of counsel claims, as such a

requirement would “create perverse incentives for counsel on

direct appeal” to assert ineffectiveness claims “regardless of

merit”; compel appellate counsel “to raise the [ineffective-

ness] issue before there has been an opportunity fully to de-

velop the factual predicate for the claim”; require initial con-

sideration of ineffectiveness claims in an appellate forum “not

best suited” to assess undeveloped facts; and create an “awk-

ward” relationship between a defendant’s trial and appellate

counsel that could hamper his appeal. Massaro, 538 U.S. at

504-506. None of those considerations applies to consular

notification claims.

An unstated premise of Bustillo’s argument that consular

notification claims should be treated like ineffective assis-

tance of counsel claims for purposes of the procedural bar

appears to be that the foreign national will regularly be un-

aware of his Vienna Convention claim at trial, but will dis-

cover it later. Even if a foreign national may not be person-

ally aware that he is free to contact his consulate to ask for

assistance, trial counsel should be in a position to advise his

client of that right and to object to any violation of it, as the

preserved claims in No. 04-10566 demonstrate. Relying on

counse) to identify a Vienna Convention claim is no different

from relying on counsel to raise potential constitutional claims

that are unknown to the defendant, including claims—such as

one under Miranda—that the government failed to provide a

detainee with required information about his rights.

A rule that allowed foreign national defendants to with-

hold their Vienna Convention claims until collateral review

would encourage tactical gamesmanship that should be dis-

couraged. For example, defense counsel with a plausible but

untested defense might be tempted to delay seeking assis-

tance from his client’s consulate when the assistance might

help but could also harm the defense, with knowledge that, in

the event of a conviction, the consulate could be contacted and

any helpful evidence could then be used to demonstrate preju-

dice from the Vienna Convention violation. Virginia’s proce-

dural bar rule reasonably, and permissibly, prevents such

tactical behavior.

CONCLUSION

The judgments of the Virginia Supreme Court and the

Oregon Supreme Court should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DOUGLAS HALLWARD-DRIEMEIER

Assistant to the Solicitor

General

ROBERT J. ERICKSON

Attorney

JOHN B. BELLINGER, III

Legal Adviser

Department of State

JANUARY 2006

APPENDIX

CONSTITUTIONAL PROVISIONS, TREATIES, AND

STATUTES INVOLVED

A. The Supremacy Clause to the Constitution, U.S. Const.

Art. 6, Cl. 2, provides:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; 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, any

Thing in the Constitution or Laws of any State to the Con-

trary notwithstanding. ;

* * * * *

B. The Vienna Convention on Consular Relations, Apr. 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261, provides in its Preamble

and Article 36:

The States Parties to the present Convention,

Recalling that consular relations have been established

between peoples since ancient times,

Having in mind the Purposes and Principles of the Char-

ter of the United Nations concerning the sovereign equal-

ity of States, the maintenance of international peace and

security, and the promotion of friendly relations among

nations,

Considering that the United Nations Conference on Dip-

lomatic Intercourse and Immunities adopted the Vienna

Convention on Diplomatic Relations which was opened for

signature on 18 April 1961,

(la)

Believing that an international convention on consular

relations, privileges and immunities would also contribute

to the development of friendly relations among nations,

irrespective of their differing constitutional and social

systems,

Realizing that the purpose of such privileges and immuni-

ties is not to benefit individuals but to ensure the efficient

performance of functions by consular posts on behalf of

their respective States,

Affirming that the rules of customary international law

continue to govern matters not expressly regulated by the

provisions of the present Convention,

Have agreed as follows:

x* * ke k &

Article 36

Communication and contact with nationals of the

sending State

1. With a view to facilitating the exercise of consular func-

tions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with

nationals of the sending State and to have access to

them. Nationals of the sending State shall have the

same freedom with respect to communication with and

access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the

receiving State shall, without delay, inform the con-

sular post of the sending State if, within its consular

district, a national of that State is arrested or commit-

ted to prison or to custody pending trial or is-detained

in any other manner. Any communication addressed to

the consular post by the person arrested, in prison,

custody or detention shall also be forwarded by the

said authorities without delay. The said authorities

shall inform the person concerned without delay of his

rights under this sub-paragraph;

tional of the sending State who is in prison, custody or

detention, to converse and correspond with him and to

arrange for his legal representation. They shall also

have the right to visit any national of the sending State

who is in prison, custody or detention in their district

in pursuance of a judgment. Nevertheless, consular

officers shall refrain from taking action on behalf of a

national who is in prison, custody or detention if he

expressly opposes such action.

The rights referred to in paragraph 1 of this Article

shall be exercised in conformity with the laws and regulations

of the receiving State, subject to the proviso, however, that

the said laws and regulations must enable full effect to be

given to the purposes for which the rights accorded under this

Article are intended.

C. The Optional Protocol Concerning the Compulsory

Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596

U.N.T.S. 487, provides in pertinent part:

The States Parties to the present Protocol and to the

Vienna Convention on Consular Relations, hereinafter

referred to as “the Convention”, adopted by the United

Nations Conference held at Vienna from 4 March to 22

April 1963,

Expressing their wish to resort in all matters con-

cerning them in respect of any dispute arising out of

the interpretation or application of the Convention to

the compulsory jurisdiction of the International Court

of Justice, unless some other form of settlement has

been agreed upon by the parties within a reasonable

period,

Have agreed as follows:

Article I

Disputes arising out of the interpretation or appli-

cation of the Convention shall lie within the compulsory

jurisdiction of the International Court of Justice and

may accordingly be brought before the Court by an

application made by any party to the dispute being a

Party to the present Protocol.

* * * * *

D. Article 94 of the United Nations Charter, June 26, 1945,

59 Stat. 1033, 1051, provides:

1. Each Member of the United Nations undertakes

to comply with the decision of the International Court

of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obliga-

tions incumbent upon it under a judgment rendered by

the Court, the other party may have recourse to the

Security Council, which may, if it deems necessary,

make recommendations or decide upon measures to be

taken to give effect to the judgment.

E. Article 59 of the Statute of the Internationa] Court of

Justice, June 26, 1945, 59 Stat. 1055, 1062, provides:

The decision of the Court has no binding force ex-

- cept between the parties and in respect of that particu-

lar case.

F. The United Nations Participation Act, 22 U.S.C. 287,

287a, provides:

Section 287. Representation in Organization

(a) Appointment of representative; rank, status,

and tenure; duties

The President, by and with the advice and consent

of the Senate, shail appoint a representative of the

United States to the United Nations who shall have the

rank and status of Ambassador Extraordinary and

Plenipotentiary and shall hold office at the pleasure of

the President. Such representative shall represent the

United States in the Security Council of the United

Nations and may serve ex officio as representative of

the United States in any organ, commission or other

body of the United Nations other than specialized

agencies of the United Nations, and shall perform such

other functions.in connection with the participation of

the United States in the United Nations as the Presi-

dent may, from time to time, direct.

(b) Appointment of additional representatives’

rank, status, and tenure; duties; reappoint, went

unnecessary

The President, by and with the advice and consent

of the Senate, shall appoint additional persons with

appropriate titles, rank, and status to represent the

United States in the principal organs of the United Na-

tions and in such organs, commissions, or other bodies

as may be created by the United Nations with respect

to nuclear energy or disarmament (control and limita-

tion of armament). Such persons shall serve at the

pleasure of the President and subject to the direction

of the Representative of the United States to the

United Nations. They shall, at the direction of the Rep-

resentative of the United States to the United Nations,

represent the United States in any organ. commission,

or other body of the United Nations, including the Se-

curity Council, the Economic and Social Council, and

the Trusteeship Council, and perform such other func-

tions as the Representative of the United States is au-

thorized to perform in connection with the participation

of the United States in the United Nations. Any Dep-

uty Representative or any other officer holding office

at the time the provisions of this Act, as amended, be-

come effective shall not be required to be reappointed

by reason of the enactment of this Act, as amended.

Section 287a. Action by representatives in accordance

with Presidential instructions; voting

The representatives provided for in section 287 of

this title, when representing the United States in the

respective organs and agencies of the United Nations,

shall, at all times, act in accordance with the instruc-

tions of the President transmitted by the Secretary of

State unless other means of transmission is directed by

the President, and such representatives shall, in accor-

dance with such instructions, cast any and all votes

under the Charter of the United Nations.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.