Amicus Curiae Brief — Sanchez-Llamas v. Oregon

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Supreme Court of the Gnited pve

MARIO A. wibinickin

Petitioner,

GENE M. JOHNSON, Director,

Virginia Department of Corrections,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Virginia

MOISES SANCHEZ-LLAMAS,

Petitioner,

Vv.

STATE OF OREGON,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Oregon

° |

BRIEF OF FORMER UNITED STATES

DIPLOMATS AS AMICI CURIAE IN SUPPORT

OF PETITIONERS MARIO A. BUSTILLO

AND MOISES SANCHEZ-LLAMAS

JOSHUA RATNER HAROLD HONGJU KOH

Of Counsel Counsel of Record

WIGGIN AND DANA LLP ALLARD K. LOWENSTEIN

400 Atlantic Street INTERNATIONAL HUMAN

P.O. Box 110325 RIGHTS CLINIC:

Stamford, CT 06911-0325 |§ NATIONAL LITIGATION PROJECT

(203) 363-7635 Yale Law School

127 Wall Street

New Haven, CT 06511

(203) 432-1660

December 22, 2005 Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Re GIS BAF RE BED cecctrcesecocnsexvcovesccsecestccecosseses ii

STATEMENT OF INTEREST ...................cccccesceseeeeeeees 1

SUMMARY OF ARGUMENT? .....00........cccecsccceseeeseeeeeeees 2

FTE vaissinesiiterisiisincisiiadntaiintpedimatisinasidiesamnnnaiiinbiens 4

I. State Courts Disrupt the Diplomatic Interests

of the United States When They Ignore the

ICJ’s Specific Holdings Construing Article 36

I ee iiciihitincaiihnntsininrcinipidinciuiniiiidiiepeiiiiutiniiiipis 4

II. State Courts Disrupt the Diplomatic Interests

of the United States When They Ignore the

ICJ’s Rulings that Article 36 of the VCCR Cre-

ates Judicially Enforceable Individual Rights

That Must Be Given Full Effect Despite Local

IT ee cacescnccacenisiaccinsenestrtnientninninapeisines 18

A. The ICJ’s Ruling Regarding Enforceable

Rights Benefits U.S. Diplomatic Interests

by Promoting Stricter Enforcement of the

EE eicerilastsbbibitsdadadiiatiiintmneiciiptidiitaiieseenbiaae 18

B. The ICJ’s Refusal To Recognize State Pro-

cedural Bars Benefits U.S. Diplomatic In-

i iivcictisticecietnbiinicncnitbinctestanenieeitadion hibiedenies 21

Ill. Allowing State Courts To Refuse To Enforce

the Avena Ruling Also Would Damage US.

Foreign Policy Interests Governed by Other

TEEN care I oe RIT OTE ee 26

ED hevcciutesintsentetnnsnnsaminenivciitainiipenaneianpeini 30

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Air France v. Saks, 470 U.S. 392 (1985) .0........ccceccsseesesseeees 8

Block v. Compagnie Nationale Air France, 386 F.2d

I, a eas 8

Breard v. Greene, 523 U.S. 371 (1998)..............0ccc eee 5, 6, 21

Crosby v. National Foreign Trade Council, 530 U.S.

RET TEI NTE aN iitle te ee DD AMP eRe ETE 2, 22

Department of Transportation v. Public Citizen, 541

8 RETR TR AMY. Co TIE se? Oe ee 29

FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960)......... 2

Hilton v. Guyot, 159 U.S. 113 (1895)... ee ceeeee eee 6,7

Medellin v. Dretke, 125 S. Ct. 2088 (2005)............0000000... 3,7

Olympic Airways v. Husain, 540 U.S. 644 (2004)............... 7

Societe Nationale Industrielle Aerospatiale uv.

United States District Court, 482 U.S. 522 (1987)........ 30

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)................. 19

Sumitomo Shoji America v. Avagliano, 457 U.S. 176

(Tae Sa MESS PPL eae eee ee sdeninisetionbilie 8

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

ERE BERS Ae ker sera Sahe Ea EM OPS ARE Oe ODS Sree 19

United States v. Arjona, 120 U.S. 479 (1887) ..............0.... 27

United States v. Chaparro-Alcantara, 37 F. Supp.

I I I cis 21

United States v. Lombera-Camorlinga, 206 F.3d 882

I a eatinteeastinl 21

TABLE OF AUTHORITIES — Continued

Page

United States v. Pink, 315 U.S. 203 (1942)... 22

Vimar Seguros y Reaseguros, S.A. v. M/V Sky

es Ste Eas Se CD icetesnciencnescntincarttnissonerinanitians 8

STATE CASES

State v. Lopez, 633 N.W.2d 774 (Iowa 2001).................004 21

State v. Sanchez-Llamas, 108 P.3d 573 (Or. 2005) ........... 18

DECISIONS OF FOREIGN COURTS AND

INTERNATIONAL TRIBUNALS

Aerial Incident of 3 July 1988 (Iran v. U.S.), 1989

I 27

Aerial Incident of 3 July 1988 (Iran v. U.S.), 1996

SC MN i ia ala li lela 27

Avena and Other Mexican Nationals (Mexico uv.

Ses Se PGs UN ie icnicncncdccisesdtninsiontieiniedsonntses passim

Bundesgerichtshof {BGH] [Federal Court of Jus-

tice] Nov. 7, 2001, 5 Entscheidungen des Bundes-

gerichtshofes in Strafsachen [BGHSt] 116

aa 20

Canada v. S.D. Myers, Inc., [2004] F.C. 38 ............0 eee 29

Case Concerning United States Diplomatic and

Consular Staff in Tehran (U.S. v. Iran), 1980

NE, SI TI cicnsinish ni hiabiikihiinastiadhaliladttahiiilensibipandssiandaie 17

Panel Report, European Communities - Regime for

the Importation, Sale, and Distribution of Ba-

nanas, WT/DS27/R/USA (May 22, 1997)..................0008 29

TABLE OF AUTHORITIES - Continued

Page

Panel Report, European Communities - Measures

Concerning Meat and Meat Products, WT/DS26/R/

CACHED, TR, BPO D esccosssscnsinssniénssiguinissiiassiabigiiiiaaaa’ 29

LaGrand Case (F-R.G. v. U.S.), 2001 LC.J. 466

GNIS Bie Pccercutainnaninattipinaeadiniibiateiinsndicdecdidedaiakiscalemuatal passim

Military and Paramilitary Activities (Nicar. v.

CFA, SD EAC. BO GI BG cccimnniecsstiiaieinatianiacinpingnititinnis 9

Regina v. Partak, (2001) 160 C.C.C.3d 553 (Ont.

- Super. Ct.) (Canada), available at 2001 Carswel-

ee Gee SPD ictditclisstincnsinsincniieinitehiaidiidbabapitaehaia tained 21

Trial of Pakistani Prisoners of War (Pak. v. India),

PTS BE Be I GD civccctiticrnicecictninictisteeininiibainieails 27

Trial of Pakistani Prisoners of War (Pak. v. India),

FER ef: ree er 27

Treatment in Hungary of Aircraft and Crew of the

United States of America (U.S. v. Hung.), 1954

Shas FINI ncnicinsccscccacinteiisaciiisisiininininoiidaicapiiainmdaasdiaa 17

Treatment in Hungary of Aircraft and Crew of the

United States of America (U.S. v. Hung.), 1954

BEd, Ge GI FP icccrcscesnittsnlicstindeitiniesinstinaenieias 17

Vienna Convention on Consular Relations (Para. v.

U.S.), 1998 LC.J. 248 (Provisional Measures

CRON CE BR DP cccecsicesissistccicssisiessthbiianiiaepasecilaiahaiiatitaaniiaiias adil 4

Villareal v. United States, Case 11.753, Report

No. 52/02, Inter-Am. C.H.R. (2002)....0..... ee ceeeeeeeeeees 18

CONSTITUTIONS

Articles of Confederation and

Perpetual Union, art. ID.................:cccceeees 22

TABLE OF AUTHORITIES -— Continued

Page

Articles of Confederation and

I casa caraeccacemmsnnnnenenntnncnnens 22

Emenda Constitucional No. 45, de 30 de dezembro

de 2004, available at https://www.planalto.gov.br/

ccivil_03/Constituicao/Emendas/Emc/emc45.htm#

TEE a 25

EE 19, 22

STATUTES AND LEGISLATIVE MATERIALS

Vienna Convention on Consular Relativns and

Optional Protocol, Sen. Exec. Rep. 91-9, 91st

i scat atacgnamaslaneiinete 7, 11,19

TREATIES AND OTHER INTERNATIONAL MATERIALS

Convention on International] Civil Aviation, opened

for signature Dec. 7, 1944, 3 Bevans 944, 15

International Air Transport Agreement, opened for

signature Dec. 7, 1944, 3 Bevans 922, 84 U.N.TS.

EERE SEMIS EMR eae Se Be SI oC 28

North American Free Trade Agreement, U.S.-Can.-

Mex., Dec. 17, 1992, 32 I.L.M. 605 (1993)..........0.0000000.. 28

Patent Cooperation Treaty, opened for signature

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

Treaty of Friendship, Commerce and Navigation,

Feb. 2, 1948, U.S.-Italy, 63 Stat. 2255, 79

sR SE 26

Treaty of Friendship, Commerce and Navigation,

Oct. 29, 1954, U.S.-F.R.G., 7 U.S.T. 1839.................000 26

TABLE OF AUTHORITIES -— Continued

Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T.

IIE vinwsinhccieticiiisicibcepeepiitiipaneaiiiliceceditiaaeininanbaiaaniahadatiniebicitiins 26

Understanding on Rules and Procedures Governing

the Settlement of Disputes (DSU), entered into

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

Results of the Uruguay Round of Multilateral

Trade Negotiations, Marrakesh, Apr. 15, 1994, 33

I.L.M. 1125 (1994) ....... incihaiteaiasdiapstaieiniepiilatinieadaddedaatets 28

Universal Copyright Convention, opened for signa-

ture Sept. 6, 1952, 6 U.S.T. 2731, 216 U.N.TS.

SS OF a CRN e See OES NRE ETERS Le RN SET 28

Vienna Convention on Consular Relations, Apr. 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261..................... passim

LAW REVIEWS AND TREATISES

Jonathan I. Charney & W. Michael Reisman,

Agora: Breard, 92 Am. J. Int L. 666 (1998)................. 24

Mark J. Kadish, Article 36 of the Vienna Convention

on Consular Relations: A Search for the Right to

Consul, 18 Mich. J. Int] L. 565 (1997)....................00000 18

Rodrigo Labardini, International Court of Justice

Finds U.S. Breached Its Obligations Under the

Vienna Convention on Consular Relations, 20

Int’ Enforcement L. Rep. 250 (June, 2004).................. 12

Luke T. Lee, Vienna Convention on Consular

Pp SSO cee ease ee Nene er il

Luke T. Lee, Consular Law and Practice (2d ed.

EEE TERI eee ak ee reer en aS aa MC 10, 11, 17

Vii

TABLE OF AUTHORITIES — Continued

Sandra Day O’Connor, Federalism of Free Nations,

in International Law Decisions in National

Courts, 13 (Thomas M. Franck & Gregory H. Fox

Colter Paulson, Compliance with Final Judgments

of the International Court of Justice Since 1987,

98 Am. J. Int L. 434 (2004)... cceseseeeceneeeeens

Restatement (Third) of the Foreign Relations Law

of the United States (3d ed. 1987)............:cccecseereeees

Shabtai Rosenne, The Law and Practice of the

International Court, 1920-1996 (3d ed. 1997)..........

Antonin Scalia, Foreign Legal Authority in the

Federal Courts, 98 Am. Soc’y Intl L. Proc. 305

GE covasciinmnnnscnemevsinncatennpniniuapviatetannenetminininon

S. Adele Shank & John Quigley, Foreigners on

Texas’s Death Row and the Right of Access to a

Consul, 26 St. Mary’s L.J. 719 (1995).....................

Victor M. Uribe, Consuls at Work: Universal In-

struments of Human Rights and Consular Protec-

tion in the Context of Criminal Justice, 19 Hous.

Fp Se Bi eR ctcinitenteniviinscitetvcinieystinaviniininiaingniini

OTHER AUTHORITIES

Amnesty International, The Execution of Angel

Breard: Apologies Are Not Enough, at http://

web.amnesty.org/library/Index/engAMR510271998

BREESE NES ee Rae ns aoe

Associated Press, Iragis Refuse Access to Americans

for Second Day, Apr. 19, 1995 .................cccceeeeeeeeeees

TABLE OF AUTHORITIES - Continued

George Boehmer, Killer Loses Fight for Life, Daily

Tel. (Sydney, Australia), Mar. 4, 1999..........0...0.......

Raymond Bonner, Mexican Killer Is Refused Clem-

ency by Oklahoma, N.Y. Times, July 21, 2001.........

Raymond Bonner, U.S. Bid To Execute Mexican

Draws Fire, N.Y. Times, Oct. 26, 2000.....................

Brief for the United States as Amicus Curiae, Ex

Parte Jose Ernesto Medellin (Tex. Crim. App.

2005) (No. AP-75,207), available at http://www.

debevoise.com/publications/pdf/CCA%20US%20

i iicsncncacnnithetnbitnidiniatiiteanapinctiipiianeiipiniasiitdeves 9, 10

Brief for the United States as Amicus Curiae

Supporting Respondent, Medellin v. Dretke, 125

S. Ct. 2088 (2005) (No. 04-5928) ...........sccceecceeereeeeees

Brief for Ambassador L. Bruce Laingen & Lt. Col.

John J. Swift et al. as Amici Curiae Supporting

Petitioners, Medellin v. Dretke, 125 S. Ct. 2088

re ID cricerceiterinninsvinsinveennacinaminnepentan

Brief for International Law Experts as Amici

Curiae Supporting Petitioners, Medellin v.

Dretke, 125 S.Ct. 2088 (2005) (No. 04-5928)............

Brief of Former United States Diplomats as Amici

Curiae in Support of Petitioner Jose Ernesto Medellin,

Ex Parte Jose Ernesto Medellin, No. AP-75,207 (Tex.

Crim App. Jun. 22, 2005), available at http//www.

debevoise.com/publications/pdf/BriefAmiciCuriaeof

ETE, TT passim —

Roger Cohen, U.S. Execution of German Stirs

Anger, N.Y. Times, Mar. 5, 1999................:0cceeseeeeeees

TABLE OF AUTHORITIES — Continued

A Conversation on the Relevance of Foreign Law

for American Constitutional Adjudication with

U.S. Supreme Court Justices Antonin Scalia &

Stephen Breyer (Jan. 13, 2005) (transcript avail-

able at http://www.wcl.american.edu/secle/founders/

ID corscnicemciccsenivepignstintereninceincantenpieaves

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

cluded from U.N. Human Rights Panel, N.Y.

I, TN Oh TI teicntactncpicatehnomcientonmaniiaiicnsinieeiiins

Connie de la Vega, Going It Alone, Am. Prospect,

St IIIIIIED sunisiclinnsiaseidanbcaaepitsedpiabdinaiiakeinaemanpeiannitaninlasin

Germany Sues U.S. for Breaking Law, Reuters,

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

penal/historia/PdeM/dpicintl html ......................0008

Adam E. Jacobs & Mark A. Berman, Rediscovering

the Right to Consul, N.J. L.J., Mar. 2, 1998.............

Brian Knowlton, Execution Pits Mexico Against

U.S.; Fox Echoes World on Death Penalty, Int

SOUS Teen FN, BE, BID nn ccccsccccncccccesctaseconcsetsense

Laura LaFay, World Court - U.S. To Halt Execu-

tion, Virginian-Pilot, Apr. 10, 1998 .....................0000

Letter from Madeleine K. Albright, U.S. Secretary

of State, to James S. Gilmore III, Governor of

GE: Tite, TI eiitercciiepnenintisnstlionstiteninitonsionin

NAFTA-Chapter 11-Investment, at http://www.dfait-

maeci.ge.ca/tna-nac/NAFTA-en. asp .............cecececeeeeee

NAFTA Investor-State Arbitrations, at http://www.

I crcincentesncnsincsnvenistiartinerniibennitie

Page

TABLE OF AUTHORITIES - Continued

Page

Nicaragua Solidarity Network of Greater New

York, Hondurans Protest Execution in U.S.,

Weekly News Update on the Americas, Apr. 26,

1998, available at http://www.tulane.edu/~libweb/

RESTRICTED/WEEKLY 1998 _0426.txt.......0.0.....00000. 16

Colin Nickerson, Canadians Protest a Texas Execu-

tion; Inmate Set To Die Today for 1975 Killing,

Boston Globe, Dec. 10, 1998 .0..........00cccececeecceseee eens 15, 23

Objectives, Center for the Study of Federalism, Temple

University, at http://www.temple.edu/federalism/

ni cctciicinesstesiesnaieisceisibtastiaiiialasdmbiidebabipiniaiitntsia 24

Paraguay Angered by US Execution, BBC News,

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

Whi/world/americas/7 8602. stm ...........cccccccseeseesecceeeeeeees 16

Dana Priest & John M. Goshko, Genocide Warning

Center Established; Clinton Human Rights Ini-

tiatives Include Changes at INS, Wash. Post, Dec.

Resolution on Death Sentence Handed Down on

Greg Summers in Texas, USA, B4-0188/99, 1999

a aden cei shashaiirin beh astaini iittala id deaae 13

Philippe Sands, An Execution Heard Around the

World, L.A. Times, Apr. 16, 1998..0.................ccececeeeeeeeee 12

David Schwartz, Plan To Execute German Killers

Attracts Scrutiny, Dallas Morning News, Feb. 22,

REEL AE eM ONE Oe PD METS etre eb Eta 12

Somini Sengupta, Appeal in Murder Cites Interna-

tional Treaty, N.Y. Times, Dec. 23, 1997....................... 12

TABLE OF AUTHORITIES — Continued

Status of Multilateral Treaties Maintained by the

U.N. Secretary General, available at http://

untreaty.un.org/sample/EnglishInternetBible/partl/

chapterIII/treatyb.asp ................ccccceeeeseeeeeeeeeseeeenenees

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

Executions Draw Scorn from Abroad, N.Y. Times,

Apr. 26, 1998, § 4 (Week in Review)..............::::c00

Kevin Sullivan, Mexico Challenges U.S. on Death

Penalty Cases, Wash. Post, Jan. 10, 2003................

Texas Embroiled in International Legal Rights

Dispute Over Preparations To Execute a Cana-

dian Citizen (NPR Morning Edition broadcast,

IER, Th PED avi ccccctecscibennstenecnednisintncnetesapsegmatnessevetis

Texas Executes a Mexican Killer, Raising a Furor

Across the Border, N.Y. Times, Mar. 26, 1993..........

Ginger Thompson, An Execution in Texas Strains

Ties with Mexico and Others, N.Y. Times, Aug.

Bi See thin cctivnessosedeaninnisntanianenpetatpeneanvhsenragnescetiecsongoe

Transcript of U.S. State Dep’t Press Briefing, July

6, 1995, 1995 WL 407848 (F.D.C.H.).........:cccccccceeeees

Transcript of State Dep’t Regular Briefing, Fed.

News Serv., July 15, 1999 ..........cccccccccsesesccccerecssseees

Transcript of State Dep’t Regular Briefing, Fed.

News Serv., Aug. 19, 1999 ............ccccccecesssereseseeeeseeees

U.N. Conference on Consular Relations Official Re-

cords, Mar. 4—Apr. 22, 1963, U.N. Doc. AACONF.25/16

IED victacesccssvensepeperatinnnntetnmetboteavinmieioevenentnatnesanapene

U.N. Official Frets over Canadian’s Texas Execu-

tion; Ottawa Steps up Bid To Spare Albertan

Convicted of Murder, Toronto Star, Nov. 26, 1998 .

Page

somes 20

enenen 16

xii

TABLE OF AUTHORITIES - Continued

U.S. Boosts Security in Honduras As Tempers

Flare, Reuters, Apr. 24, 1998...............ccsessscsssssrrserseeees 16

U.S. Says China Misled It on Scholar’s Where-

abouts; Envoy Says He Took 12-Hour Taxi Ride

in Remote Region Based on Misinformation, S.F.

IRS, CHE G, Bip rectsccncnscncrssncnnisecteamitiinsimaineen 20

U.S. Department of State, Country Background Notes,

available at http://www.state.gov/r/pa/ei/bgn/ .............. 24

U.S. Department of State, Consular Information

Sheet: India, Aug. 24, 2005, available at http://

travel.state.gov/travel/cis_pa_tw/cis/cis_1139.htm1 ....... 25

U.S. Department of State, Consular Notification and

Access, Part 3: FAQs, available at http://Aravel.state.

gov/law/consular/consular_ 639. html..............::cccseeeceees 17

Armando Villafranca, Life and Death Chasm, Hous.

eins TREE, Tis TG cncccnccrcccesarneentastecsstestatinnnteecouns 16

WTO, Chronological List of Dispute Cases, at http-/

www.wto.org/english/tratop_e/dispu_e/dispu_status_e.

STATEMENT OF INTEREST’

Amici have served as Senior State Department Offi-

cials, Ambassadors, and Legal Advisers to the U.S. De-

partment of State, representing the government of the

United States at home and abroad in both Republican and

Democratic administrations.’ Amici express no opinion on

what the ultimate resolution of Petitioners’ convictions

and sentences should be. Nor do all signatories of this

brief necessarily agree with the International Court of

Justice’s (“ICJ”) interpretation of the Vienna Convention

on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596

U.N.T.S. 261 (“VCCR”), in Avena and Other Mexican

Nationals (Mex. v. U.S.), 2004 LCJ. 128 (Mar. 31)

(“Avena”). But all Amici do agree that this Court should

abide by the ICJ’s interpretation of Article 36 of the VCCR

as a matter of comity and uniform treaty interpretation,

rather than allowing individual state courts within the

United States to adopt their own independent interpreta-

tions of the meaning of Article 36. All Amici further agree

that this Court’s failure to respect the ICJ’s judgment in

' In accordance with Supreme Court Rule 37.6, Amici state that no

party, person or entity other than Amici and their counsel authored this

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

their counsel, has made a monetary contribution to the preparation or

submission of this Brief. All parties have granted consent to the filing of

this Amicus Curiae Brief.

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

former Deputy Secretary of State Strobe Talbott, former Under

Secretary of State Thomas R. Pickering, former Ambassadors Morton

Abramowitz, Stephen W. Bosworth, Jeffrey Davidow, Wendy R.

Sherman, Nancy Soderberg, and Frank G. Wisner, former Lega! Adviser

Herbert J. Hansell, and Special Presidential Envoy James C. O’Brien.

Of their number, four have retired with the rank of Career Ambassador,

the highest rank that can be awarded to members of the United States

Foreign Service. Amici appear in their personal capacities, and by doing

so, do not intend to convey the views of their affiliated institutions on

the questions presented here. The qualifications of Amici are listed in

the Appendix to this Brief.

Avena with respect to the two cases currently before the

Court would significantly impair the credibility and

efficacy of American diplomats in the international arena,

jeopardize important U.S. foreign policy interests, and

diminish American standing in the world community. Cf.

Crosby v. Natl Foreign Trade Council, 530 U.S. 363, 385

(2000) (“[O]pinions of senior National Government officials

are competent and direct evidence of the frustration of

congressional objectives by [a] state Act.”).

Amici believe-that=—“{g]reat nations, like great men

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

Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissent-

ing). This Court therefore should enforce Avena’s holdings

that: (1) Article 36 of the VCCR provides foreign nationals

with judicially enforceable individual rights; and (2) U.S.

state and federal courts must afford those individual

rights “full effect,” notwithstanding the existence of any

state procedural bar. To protect the foreign policy interests

of the United States, this Court’s judgment should ensure

that state court rulings do not undermine our diplomatic

relations with close allies or damage critical U.S. interests

embodied in other treaty regimes.

SUMMARY OF ARGUMENT

From the founding until today, the ability of U.S.

diplomats to carry out important foreign policy objectives

has critically depended upon strong enforcement of our

treaty obligations by the federal government and federal

courts. The Framers’ difficult experiences under the

Articles of Confederation taught them that the United

States cannot credibly conduct its foreign relations unless

the several States ‘honor national treaty obligations.

Under the Articles of-Confederation, state violations of

national treaty obligations led important allies and adver-

saries to refuse both to honor their reciprocal treaty

obligations and to enter new commercial treaties with the

United States.

In drafting the Constitution, the Framers made sure

that the federal government would have the authority to

bind the entire nation, including the individual] States, to

our international obligations. Since its inception, this

Court repeatedly has reaffirmed that understanding,

regularly holding that treaties duly entered by the na-

tional government supersede conflicting state laws and

bind the States to our national commitments.

The ICJ has interpreted the VCCR as creating judi-

cially enforceable individual rights to consular access and

notification, which must be given “full effect” over any

state procedural bar. The President has issued an order

confirming that the United States has an obligation to

comply with its international commitments and to enforce

the ICJ’s decision in Avena. Notwithstanding this clear

interpretation of the scope of Article 36 of the VCCR, the

Commonwealth of Virginia and the State of Oregon ar-

rested, tried, convicted, and sentenced Petitioners Mario

A. Bustillo and Moises Sanchez-Llamas - Honduran and

Mexican nationals, respectively — without ever informing

either of his right to seek consular assistance.

Oregon’s and Virginia’s continuing noncompliance in

these cases with the VCCR - as construed by the Avena

court — offends the Framers’ constitutional vision and

promotes precisely the sort of diplomatic failures that.

prompted the modern treaty power. The several States’

practice of ignoring the VCCR obligations has strained

bilateral and multilateral relations, disrupted important

national foreign policy interests, and impaired the ability

of diplomats to carry out critical initiatives with foreign

governments and international organizations.’ Moreover,

state noncompliance with our treaty obligations has

caused allies and adversaries alike to criticize the United

* Accord Medellin v. Dretke, 125 S. Ct. 2088, 2096 (2005) (“In this

country, the individual States’ (often confessed) noncompliance with the

treaty has been a vexing problem.... {that} may have considerable

ramifications ... .”) (O’Connor, J., dissenting) (citations omitted).

States and to question our longstanding leadership in

international law and human rights.

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

the United States to enforce the VCCR, but, more broadly,

our nation’s capacity to participate effectively in a diverse

array of treaty regimes in which our executive and legisla-

tive branches of government have chosen compulsory

international adjudication as a means to protect our

national interests. As American diplomats, Amici have

helped to pursue and secure numerous treaties that confer

jurisdiction upon the ICJ and other international] dispute-

settlement bodies. As American private commercial inter-

ests become increasingly global, reliable mechanisms for

international dispute resolution will become increasingly

central to uur nation’s foreign policy. The United States

cannot build or benefit from these mechanisms so long as

States and localities continue to flout international tribu-

nal rulings, break ratified treaties, and jeopardize our

global reputation as a dependable treaty partner.

ARGUMENT

I. State Courts Disrupt the Diplomatic Interests

of the United States When They Ignore the

ICJ’s Specific Holdings Construing Article 36 of

the VCCR.

Article 36 of the VCCR requires all signatory nations,

including the United States, to inform “without delay” any

detained foreign national of his right to request assistance

from the consul of his own nation and, if the national so

requests, to inform “without delay” the consular office of

that national’s detention or arrest. Since 2001, the United

States has been a party before the ICJ to three cases

interpreting the scope of Article 36 of the VCCR.

First, in Vienna Convention on Consular Relations

(Para. v. U.S.), 1998 LC.J. 248 (Provisional Measures

Order of Apr. 9), the ICJ indicated provisional measures

questioning Virginia’s violations of a Paraguayan national’s

5 7

Article 36 rights. Considering that ICJ ruling in Breard v.

Greene, 523 U.S. 371, 375 (1998), this Court found absent

from the ICJ’s ruling any “clear and express statement” of

the meaning of Article 36 with respect to the issues cur-

rently before this Court.

Three years later, however, in LaGrand Case (F.R.G.

v. U.S.), 2001 LC.J. 466 (June 27) (*“LaGrand”), the ICJ

rejected the U.S. position that rights stemming from

violations of the VCCR are solely the “rights of States, and

not of individuals.” Jd. J 76. The ICJ specifically held that

Article 36 of the VCCR “creates individual rights.” Jd.

{ 77. Moreover, the ICJ determined that application of

procedural default rules in that case violated the VCCR

because it prevented “ ‘full effect [from being] given to the

purposes for which the rights accorded under this article

are intended.’” Id. | 91 (quoting VCCR art. 36(2), 21

U.S.T. at 101) (alteration in original).

In 2004, in Avena, the ICJ held that the United States

had violated the consular rights of numerous Mexican

nationals in contravention of Article 36(1)(b) of the VCCR

by failing to inform fifty-one detained Mexican nationals of

their treaty rights and by failing to inform Mexican

consular authorities of forty-nine of the detentions. Jd.

{ 153(4)-(5).* Citing LaGrand, the ICJ reaffirmed that

Article 36(1)(b) of the VCCR gives detained foreign na-

tionals judicially enforceable individual rights they can

“assert[] ... within the domestic legal system of the

United States.” Jd. J 40. The ICJ also held that domestic

application of procedural default rules to bar consideration

of VCCR claims violated Article 36(2)’s direction that

signatories “enable full effect to be given to the purposes

* The ICJ held that the proper remedy for these violations “consists

in the obligation of the United States of America to provide, by means of

its own choosing, review and reconsideration of the convictions and

sentences of the Mexican nationals . . . by taking account . . . both of the

violation of the rights set forth in Article 36... and of paragraphs 138

to 141 of this Judgment.” Avena at 7 153(9).

for which the rights accorded under this Article are in-

tended.” VCCR art. 36(2), 21 U.S.T. at 101; Avena at

q4 113-14.

Together, LaGrand and Avena present clear pro-

nouncements by the ICJ that Article 36 of the VCCR

provides individual, judicially enforceable rights that

cannot be impeded by local procedural bars.’ The ICJ’s

unambiguous interpretation of Article 36 in LaGrand and

Avena binds this Court not just as a matter of interna-

tional law,’ but also through principles of comity and

uniform treaty interpretation. As this Court has explained:

“Comity,” in the legal sense, is neither a matter

of absolute obligation, on the one hand, nor of

mere courtesy and good will, upon the other. But

it is the recognition which one nation allows

within its territory to the legislative, executive or

judicial acts of another nation, having due regard

both to international duty and convenience, and

to the rights of its own citizens, or of other per-

sons who are under the protection of its laws.

Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). At least as

much “mutual trust and respect” should be due the judg-

ment of an international, U.N.-created tribunal that the

United States has chosen as the forum for resolution of a

certain category of disputes. See Sandra Day O’Connor,

Federalism of Free Nations, in International Law Deci-

sions in National Courts 13, 18 (Thomas M. Franck &

Gregory H. Fox eds., 1996).

“This interpretation of Article 36 is precisely the “clear and

express statement” this Court had found lacking in Breard. 523 U.S. at

375.

* See Avena at 7 151 (interpretation of Article 36 of the VCCR is

one of general application and is not limited to the facts of the case); see

also 3 Shabtai Rosenne, The Law and Practice of the International

Court, 1920-1996, at 1655-56 (3d ed. 1997) (ICJ judgment “creates a res

judicata”).

- 7

By signing the Optional Protocol to the VCCR, the

United States expressly consented to the ICJ’s jurisdiction

to interpret the meaning of the VCCR. The United States

does not deny that the decision in Avena was reached by

an impartial judicial body’ or that the United States fully

and fairly litigated the dispute. Given this background,

rules of comity should require that the ICJ’s judgment be

given full effect in U.S. courts without reexamining the

merits of that decision. Cf. Hilton, 159 U.S. at 202; see id.

at 203 (“[T]he merits of the case should not ... be tried

afresh, as on a new trial or an appeal, upon the mere

assertion .. . that the judgment was erroneous in law or in

fact.”); see also Medellin v. Dretke, 125 S. Ct. 2088, 2094

(2005) (Ginsburg, J., concurring) (“It is the long-recognized

general rule that, when a judgment binds or is respected

as a matter of comity, a ‘let’s see if we agree’ approach is

out of order.”).

This Court should adhere to the ICJ’s interpretation

of Article 36 of the VCCR to help ensure that the VCCR’s

provisions on consular access are consistently interpreted

and uniformly applied by all signatories — one of the

parties’ principal goals in enacting the VCCR in the first

place. When a multilateral treaty results from an effort to

achieve uniform treatment of a particular subject, “it is

reasonable to impute to the parties an intent that their

respective courts strive to interpret the treaty consis-

tently.” Olympic Airways v. Husain, 540 U.S. 644, 660

” Indeed, in Avena, the ICJ’s determination of liability was reached

by a vote of 14-1 (with the U.S. judge in the majority), and its determi-

nation of remedy was reached by unanimous vote. Avena at 74 153(4)-

(7), (9), (11).

* See Report of the U.S. Delegation to the U.N. Conference on

Consular Relations, reprinted in Vienna Convention on Consular

Relations and Optional Protocol, Sen. Exec. Rep. 91-9, 91st Cong., Ist

Sess., at 3 (1969) (report of Sen. Fulbright) (stating that the US.

entered into the VCCR to “further friendly relations between nations

through the orderly development of uniform standards of consular

practice”).

(2004) (Scalia, J., dissenting). The Avena court itself

recognized the importance of this principle of uniform

treaty interpretation, stating that it had approached the

decision “from the viewpoint of the general application of

the Vienna Convention” and intended its interpretation

and application of the VCCR to apply in any future case

between any parties to the VCCR. See Avena at { 151.

Both this principle of uniform treaty interpretation and

the VCCR itself would be eviscerated were each national

party (or local province thereof) to insist upon applying its

own peculiar interpretation of the VCCR.

Recent U.S. Executive Branch positions reinforce

Amici’s claim that principles of comity and uniform treaty

interpretation warrant application of Avena’s interpreta-

tion of the VCCR. In his February 28, 2005 Presidential

* See also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515

U.S. 528, 537 (1995); Air France v. Saks, 470 U.S. 392, 404 (1985);

Sumitomo Shoji America v. Avagliano, 457 U.S. 176, 185 (1982) (“When

the parties to a treaty both agree as to the meaning of a treaty provi-

sion, and that interpretation follows from the clear treaty language, we

[as judges) must, absent extraordinarily strong contrary evidence, defer

to that interpretation.”); Block v. Compagnie Nationale Air France, 386

F.2d 323, 337-38 (Sth Cir. 1967) (“A multilateral treaty is rather like a

‘uniform law’ within the United States. The Court has an obligation to

keep interpretation as uniform as possible.”); Antonin Scalia, Foreign

Legal Authority in the Federal Courts, 98 Am. Soc’y Int'l L. Proc. 305,

305 (2004) (“When federal courts interpret a treaty to which the United

States is a party, they should give considerable respect to the interpre-

tation of the same treaty by the courts of other signatories. Otherwise

the whole object of the treaty, which is to establish a single, agreed-

upon regime governing the actions of all the signatories, will be

frustrated.”); A Conversation on the Relevance of Foreign Law for

American Constitutional Adjudication with U.S. Supreme Court

Justices Antonin Scalia & Stephen Breyer (Jan. 13, 2005) (transcript

available at http//www.wcl.american.edu/secle/founders/2005/050 113.

cfm (last visited Dec. 18, 2005)) (“[T}he object of a treaty being to come

up with a text that is the same for all the countries, [the U.S. courts) should defer

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

is to say if it's within [the] ball park, if it's a reasonable interpretation, though not

necessarily the very best.”) (comments of Justice Scalia).

Determination directing state courts to comply with

Avena, President Bush declared that “the United States

will discharge its international obligations under [Avena]

by having state courts give effect to the decision in accor-

dance with general principles of comity.” Subsequently,

the Executive Branch has submitted two amicus briefs

explaining the reasoning behind this Presidential Deter-

mination." These briefs make clear that the presidential

decision to adhere to Avena as a matter of comity was not

tied to the fact that the United States was an immediate

party to the Avena decision.” Instead, the United States

argues, as Amici do here, that state compliance with

Avena is essential for broader diplomatic reasons: because

compliance “protectis} the interests of United States

citizens abroad, promotes the effective conduct of foreign

* Brief for the United States as Amicus Curiae Supporting

Respondent at app. 2, Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No.

04-5928) (Memorandum from the President to the Attorney General

(Feb. 28, 2005)), 2005 WL 504490, at *laa (emphasis added).

" See Brief for the United States as Amicus Curiae Supporting

Respondent, Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928),

2005 WL 504490; Brief for the United States as Amicus Curiae, Ex

Parte Jose Ernesto Medellin, No. AP-75,207 (Tex. Crim. App. Jun. 22,

2005), available at http:/Awww.debevoise.com/publications/pdf/CCA%

20US%20Amicus.pdf (last visited Dec. 18, 2005) [hereinafter U.S. CCA

Brief).

“ To the contrary, the United States claims that “{iJn particular

circumstances, the President may decide that the United States will not

comply with an ICJ decision and, if Security Council enforcement

measures are proposed, direct a veto, consistent with the United

Nations Charter.” U.S. CCA Brief at 21; see also id. at n.3 (citing the

United States’ failure to abide by the ICJ’s determination in Military

and Paramilitary Activities (Nicar. v. U.S.), 1986 1.C.J. 14, 146, (June

27)). The U.S. Government's brief gives little weight to the fact that the

United States was a party to the VCCR’s Optional Protocol when Avena

was decided because “(t]he Optional Protocol does not itself commit the

United States to comply with a resulting ICJ decision.” Jd. at 17. If so,

it is unclear why the US. decision to withdraw from the Optional

Protocol on March 7, 2005 should affect the question whether compli-

ance with Avena remains necessary as a matter of comity. Jd. at 17 n.1.

relations, and underscores the United States’ commitment

in the international community to the rule of law.” U.S.

CCA Brief, supra note 11, at 13; see also id. at 23 (explain-

ing the President’s decision to adhere to Avena as the

product of “delicate and complex calculations ... taking

into account” a number of factors, including “the need for

the United States to be able to protect Americans abroad,

the international legal obligations of the United States,

judgments about the likely responses of various foreign

countries to potential United States actions with respect to

the Vienna Convention, and other United States foreign

policy interests”)."

Against this background, the refusal of state courts to

adhere to Avena will undermine America’s credibility as a

global leader and seriously hinder foreign policy objectives

at a critical time in our nation’s history. The United States

has long declared that the right to consular access guaran-

teed by the VCCR is “widely accepted as the standard of

international practice of civilized nations.” Through its

diplomats, our government routinely calls on such nations

as Iraq, Syria, China, and North Korea to abide by this

minimal standard when U.S. citizens are detained abroad.”

” Significantly, the U.S. Government brief also asserts that

applying the “review and reconsideration” of VCCR claims as set forth

in Avena will be easy for state courts to accomplish. See id. at 29.

“ Victor M. Uribe, Consuls at Work: Universal Instruments of

Human Rights and Consular Protection in the Context of Criminal

Justice, 19 Hous. J. Int'l L. 375, 385 (1997) (quoting telegram sent from

U.S. Department of State to its Embassy in Damascus on February 21,

1975 (hereinafter Damascus Telegram], as reprinted in Luke T. Lee,

Consular Law and Practice 145-46 (2d ed. 1991)).

* S. Adele Shank & John Quigley, Foreigners on Texas's Death Row

ana the Right of Access to a Consul, 26 St. Mary's L.J. 719, 729 (1995)

(noting U.S. protest of delay in notification of detention of U.S. mission-

aries in El Salvador); Transcript of State Dep't Regular Briefing, Fed.

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

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

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

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

(Continued on following page)

The United States not only drafted the amendment that

ultimately became Article 36, but also led the effort to

convince nations throughout the world to confer compul-

sory jurisdiction on the ICJ, precisely because American

foreign policy officials realized that diplomatic overtures

alone were insufficient to enforce the VCCR.” Over two

decades ago, when Iran famously violated the VCCR by

taking U.S. diplomats hostage in Tehran, then flouted its

obligation under the Optional Protocol to comply with the

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

accused Iran of showing “‘contempt, not only for interna-

tional law, but for the entire international structure for

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

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

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

Convention.”); Transcript of State Dep’t Regular Briefing, Fed. News Serv.,

July 15, 1999 (James Rubin, State Dep't spokesman, commenting on

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

Korea of its obligations under the Interim Consular Agreement of 1994 and

the Vienna Convention on Consular Relations to permit consular access to

detained US. citizens.”); see also Lee, supra note 14, at 145-46 (documenting

US. invocation of the VCCR); Brief of Former United States Diplomats as

Amici Curiae in Support of Petitioner Jose Ernesto Medellin at 17 & n.26, Ex

Parte Jose Ernesto Medellin, No. AP-75,207 (Tex. Crim. App. Jun. 22, 2005)

{hereinafter Diplomats CCA Brief], avaiable at http//www.debevoise.com/

18, 2005).

See Brief for Ambassador L. Bruce Laingen and Lt. Col. John J.

Swift et al. as Amici Curiae Supporting Petitioners at 6-16, Medeltin v.

Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928); Brief for International

Law Experts as Amici Curiae Supporting Petitioners at 11-13, 15-21,

Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928) (describing the

U.S. role in the creation and implementation of the VCCR); Luke T.

Lee, Vienna Convention on Consular Relations 111, 113 (4966); see also

Sen. Exec. Rep. 91-9, at 19 (statement of J. Edward Lyerly, Deputy

Legal Adviser for Administration of the State Dep't); U.N. Conference

on Consular Relations, Mar. 4—-Apr. 22, 1963, Official Records, 1st

Comm., 29th mtg., {4 36, 54, U.N. Doe A/CONF.25/16 (1963); id. at

plenary mtg., 21st mtg., {7 17-20.

securing the peaceful resolution of differences among

nations.’””

Today, our closest allies now accuse the United States

of showing similar disregard for the VCCR and the ICJ.

Through numerous calls, meetings, and letters to both

state and federal authorities, our allies have strenuously

requested review and reconsideration of the convictions

and sentences of their citizens who were denied their

VCCR rights despite orders of the ICJ." There are few, if

any, areas of our foreign policy in which Amici can recall

hearing so consistently from foreign heads of state, foreign

ministers, and foreign ambassadors pleading for the

enforcement of U.S. treaty obligations.

International and regional human rights bodies have

echoed the vigorous protests of foreign governments. The

Inter-American Commission on Human Rights, the Euro-

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

Human Rights have each strongly criticized U.S. violations

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

Times, Apr. 16, 1998, at B9 (quoting President Carter’s comments

during the Iranian hostage crisis).

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

with Mexico and Others, N.Y. Times, Aug. 16, 2002, at A6 (citing call

from President Fox of Mexico); Laura LaFay, World Court - U.S. To

Halt Execution, Virginian-Pilot, Apr. 10, 1998, at Al (describing protests

by Mother Teresa, Pope John Paul II, and Italiar government to

execution of Italian citizen); Somini Sengupta, Appeal in Murder Cites

International Treaty, N.Y. Times, Dec. 23, 1997, at B5 (letter from

Ecuadorean Consul General); David Schwartz, Plan To Execute German

Killers Attracts Scrutiny, Dallas Morning News, Feb. 22, 1999, at Al

(describing efforts by then-German President Herzog, Chancellor

Schroeder, Foreign Minister Fischer, and Ambassador Chrobog request-

ing support for clemency from President Clinton and Arizona Governor

Hull); see also Rodrigo Labardini, International Court of Justice Finds

U.S. Breached Its Obligations Under the Vienna Convention on Consu-

lar Relations, 20 Int'l Enforcement L. Rep. 250, 251 n.8 (June 2004)

(documenting six letters sent by the government of Mexico to the

United States regarding the, execution of Irineo Tristan Montoya by

Texas in 1997); Diplomats CCA Brief at 18 & n.29.

of the VCCR.” The European Union has lodged numerous

official demarches with state authorities requesting

reconsideration of pending executions because of violations

of the VCCR.”

The widespread international opposition to the sev-

eral States’ persistent practice of violating the VCCR and

the ICJ decisions construing that treaty has undeniably

harmed our global position as a human rights leader.”

” See, e.g., Villareal v. United States, Case 11.753, Report No.

52/02, Inter-Am. C.H.R., 99 69-70 (2002) (describing notification of the

right to consular assistance as “among the minimum guarantees

essential for foreign nationals also to adequately prepare their defense

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

violated Mexican national’s right to due process); Resolution on Death

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

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

U.S. failure to notify foreign nationals of rights to consular access and

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

of two German brothers on death row who had not had consular

assistance); Kevin Sullivan, Mexico Challenges U.S. on Death Penalty

Cases, Wash. Post, Jan. 10, 2003, at Al7 (citing concerns expressed by

U.N. High Commissioner for Human Rights regarding the execution of

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

rights under the VCCR by the state of Texas); Dana Priest & John M.

Goshko, Genocide Warning Center Established; Clinton Human Rights

Initiatives Include Changes at INS, Wash. Post, Dec. 11, 1998, at A52

(referring to a speech by U.N. High Commissioner for Human Rights

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

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

under the VCCK by the state of Texas); Diplomats CCA Brief at 19-20 &

n.32.

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

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

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

Vietnam, Dec. 4, 2003; (4) Gregory Madej, Poland, May 1, 2001; (5)

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

Mexico, Apr. 30 and May 6, 2004; (7) Gerardo Valdez Maltos, Mexico,

June 5 and July 13, 2001.

* See, e.g., George Boehmer, Killer Loses Fight for Life, Daily Tel.

(Sydney, Australia), Mar. 4, 1999, at 25 (quoting the German parlia-

ment’s Human Rights Committee Chairman Roth's reaction to the

(Continued on following page)

State noncompliance with these rulings has undermined

our authority in several important international human

rights bodies.” International disapproval of our noncom-

pliance with the VCCR has also deflected attention away

from serious human rights abuses in other countries.

Actions of the several States in violation of the VCCR and

the ICJ decisions construing that treaty have provided our

adversaries with diplomatic ammunition to challenge the

sincerity of our own commitment to human rights and the

rule of law in international relations.” As the German

LaGrand execution: “When [Secretary of State Madeleine) Albright

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

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

Amnesty International, The Execution of Angel Breard: Apologies Are

Not Enough, at _ http://web.amnesty.org/library/Index/engAMR51027

1998 (May 1, 1998) (quoting Paraguayan Deputy Foreign Minister

Rachid: “[T]here is not an international summit at which they [the U.S.

government} do not preach the preservation of human rights. ... [T]he

United States has been the champion of democracy .. . let them be the

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

respect human rights.”) (last visited Dec. 21, 2005); Diplomats CCA

Brief at 19-20 & n.34.

* Shortly after the LaGrand executions occurred despite a contrary

ICJ provisional measures order, the United States was voted off the

U.N. Commission on Human Rights in 2001 for the first time in that

body’s 54-year history. Barbara Crossette, For First Time, U.S. Is Excluded

from U.N. Human Rights Panel, N.Y. Times, May 4, 2001, at Al. Shortly

thereafter, the United States likewise failed to win a seat on the Inter-

American Commission on Human Rights for the first time since that body’s

inception in 1959, and its observer status in the Council of Europe — which

bans executions - has been put in jeopardy, in part because of US.

executions of foreign nationals who had not been counseled under the

VCCR. Coanie de la Vega, Going It Alone, Am. Prospect, July 2904, at A22.

® See, e.g., Raymond Bonner, Mexican Killer Is Refused Clemency

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

government as declaring Oklahoma's execution of Mexican national

denied VCCR rights as “contrary to international law and the elemental

principles of cooperation between nations”); Roger Cohen, U.S. Execu-

tion of German Stirs Anger, N.Y. Times, Mar. 5, 1999, at 14 (quoting

German Justice Minister, declaring that Arizona's execution of the two

LaGrand brothers “is barbaric and unworthy of a [nation] based on the

(Continued on following page)

Justice Minister stated in announcing Germany’s suit

against the United States in the ICJ to challenge the

execution of two German nationals who were denied

consular rights: “Respecting international laws cannot be

a one-way street.”” So long as the United States continues

to promote the rule of law around the world, other nations

will equally demand that we set an example by complying

strictly with our own binding obligations under the U.N.

Charter, the ICJ statute, and the VCCR.

Taken together, continued state noncompliance with

our obligations under the VCCR has significantly ham-

pered the ability of the President, Amici, and other diplo-

mats to carry out foreign policy initiatives. In Amici’s

experience, a significant proportion of important bilateral

and multilateral meetings with our closest allies is now

consumed with answering diplomatic demarches challeng-

ing these practices, rather than addressing issues more

central] to our core national foreign policy interests.

Allowing state courts to keep ignoring the ICJ’s

interpretation of Article 36 in Avena and LaGrand would

inevitably hario our diplomatic relations with our closest

allies. Foreign hostility stirred by the U.S. practice of

executing foreign nationals who were denied their VCCR

rights has triggered fierce press criticism and even angry

demonstrations in front of U.S. embassies abroad.” Such

rule of law”); David Stout, Do As We Say, Not As We Do: U.S. Executions

Draw Scorn from Abroad, N.Y. Times, Apr. 26, 1998, § 4 (Week in

Review), at 4 (quoting Honduran newspaper upon execution of Hondu-

ran national denied rights under the VCCR: “The most powerful

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

rectitude, has violated its own precepts.”).

* See Germany Sues U.S. for Breaking Law, Reuters, Sept. 16,

1999, available at http://www.ub.es/penal/historia/PdeM/dpicintl. html

(last visited Dec. 19, 2005).

* See Brian Knowlton, Execution Pits Mexico Against U.S.; Fox

Echoes World on Death Penalty, Int'l Herald Trib., Aug. 16, 2002, at 1

(documenting intense media attention in Mexico); Colin Nickerson,

Canadians Protest a Texas Execution; Inmate Set To Die Today for 1975

(Continued on following page)

protests have seriously disrupted important diplomatic

missions, and at times, even threatened the physical

safety of U.S. diplomats and embassy staff trying to work

in these countries.”

Killing, Boston Glebe, Bee-i0, 1998, at A2 (describing the execution of

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

television newscasts” in Canada); Stout, supra note 23 (citing protest in

front of U.S. embassy in Paraguay); Paraguay Angered by US Execu-

tion, BBC News, Apr. 15, 1998, available at http://news.bbc.co.

uk/V/hi/world/americas/78602.stm (last visited Dec. 21, 2005) (docu-

menting public outcry and inundation of radio channels in Paraguay

with angry calls); Adam E. Jacobs & Mark A. Berman, Rediscovering

the Right to Consul, N.J. L.J., Mar. 2, 1998, at 32 (describing demon-

stration in front of U.S. Consulate in Ecuador); Texas Executes a

Mexican Killer, Raising a Furor Across the Border, N.Y. Times, Mar. 26,

1993, at A15 (describing protests). After Arizona executed Jose Roberto

Villafuerte, a Honduran national, 500 Hondurans protested at the U.S.

Embassy in Tegucigalpa, and Honduran newspapers reported retalia-

tory threats against the lives of U.S. citizens in Honduran prisons.

Nicaragua Solidarity Network of Greater New York, Hondurans Protest

Execution in U.S., Weekly News Update on the Americas, Apr. 26, 1998,

available at http://www.tulane.edu/~libweb/RESTRICTED/WEEKLY/

1998 _0426.txt (last visited Dec. 21, 2005). In 1999, to protest the

execution of a Canadian who had been denied his rights under the

VCCR, local activists planned demonstrations and other organized

protests, including letter-writing campaigns and threatened economic

boycotts. U.N. Official Frets over Canadian’s Texas Execution; Ottawa

Steps Up Bid To Spare Albertan Convicted of Murder, Toronto Star, Nov.

26, 1998, at A9; Texas Embroiled in international Legal Rights Dispute

Over Preparations To Execute a Canadian Citizen (NPR Morning

Edition broadcast, Dec. 9, 1998); Diplomats CCA Brief at 22 & n.31.

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

Honduras to protest the execution of a Honduran who had not been

given timely access to the consular officials, more than 4000 U.S.

personnel, including diplomatic staff, had to be protected by armed

security. See U.S. Boosts Security in Honduras As Tempers Flare,

Reuters, Apr. 24, 1998; Stout, supra note 23. After the execution of

Tristan Montoya, a Mexican who had been denied his rights under the

VCCR, Mexicans issued death threats and U.S. tourists were given

warnings to stay out of certain areas. Armando Villafranca, Life and

Death Chasm, Hous. Chron., Sept. 28, 1997, at Al.

As U.S. diplomats, Amici have sought fully to dis-

charge U.S. responsibilities under the VCCR to encourage

the fullest reciprocal protection for American citizens who

are detained while living or traveling abroad.” For the

same reason, for more than half a century, the United

States has vigorously protected its right of consular access

to American citizens held abroad through the ICJ.” To

protect our own nationals, the United States expects to

gain consular access within seventy-two hours for any and

all U.S. citizens and diplomats who are taken into foreign

custody. U.S. Department of State, Consular Notification

and Access, Part 3: FAQs, available at http://travel.

state.gov/law/consular/consular_748.html (last visited Dec.

19, 2005). It would be all too easy for foreign governments

to ignore those requests if U.S. courts could simply refuse

to respect the VCCR at home, in the face of a directly

applicable treaty interpretation rendered by the ICJ.

” In a 1975 telegram to the Syrian Embassy, the State Department

confirmed that the United States’s willingness to provide consular

access to foreign nationals rests in good measure upon expectations of

reciprocity from our treaty partners. See Damascus Telegram, as

reprinted in Lee, supra note 14 (“The recognition of these rights is

prompted in part by considerations of reciprocity. ... The Government

of the Syrian Arab Republic can be confident that if its nationals were

detained in the United States the appropriate Syrian officials would be

promptly notified and allowed prompt access to these nationals.”).

* As early as 1954, the United States sought to bring suit in the

ICJ against Hungary, challenging Hungary’s failure to provide consular

access before trial to four U.S. airmen whose plane had been shot down.

See Treatment in Hungary of Aircraft and Crew of the United States of

America (U.S. v. Hung.), 1954 ICJ Pleadings 19-20, 31, 35-36. The suit

was eventually dismissed for lack of jurisdiction over Hungary, which

had not yet signed the Optional Protocol. 1954 ICJ 99 (July 12); see also

Case Concerning United States Diplomatic and Consular Staff in

Tehran (U.S. v. Iran), 1980 1.C.J. 3 (May 24).

II. State Courts Disrupt the Diplomatic Interests

of the United States When They Ignore the

ICJ’s Rulings That Article 36 of the VCCR Cre-

ates Judicially Enforceable Individual Rights

That Must Be Given Full Effect Despite Local

Procedural Bars.

A. The ICJ’s Ruling Regarding Enforceable

Rights Benefits U.S. Diplomatic Interests

by Promoting Stricter Enforcement of the

VCCR.

The ICJ has repeatedly and explicitly held that the

VCCR creates a judicially enforceable individual right.” In

so holding, the ICJ specifically rejected claims by the

United States that the rights in question are somehow

rights of States and not individuals. In LaGrand, for

example, the ICJ carefully read the text, history, negotia-

tions, and practical construction adopted by the parties to

the VCCR to conclude “that [VCCR] Article 36, paragraph

1, creates individual rights, which, by virtue of Article 1 of

the Optional Protocol, may be invoked in this Court by the

national State of the detained person.”

Notwithstanding that declaration, the Oregon Su-

preme Court invoked a broad “presumption against the

creation of individual, judicially enforceable rights” by means

of treaties. State v. Sanchez-Llamas, 108 P.3d 573, 576 (Or.

2005). In fact, the VCCR gives rise to no such presumption.

This Court has long recognized that self-executing treaties

* See supra Part I; see generally Mark J. Kadish, Article 36 of the

Vienna Convention on Consular Relations: A Search for the Right to

Consul, 18 Mich. J. Intl L. 565, 596 (1997) (concluding from an

examination of the travaux preparatoires of the VCCR that the general

intent of the drafting parties in Article 36 was to create individual

rights). r

* LaGrand, at 4 77; see also id. J] 38, 42, 74, 78, 126; Avena, at

W735, 40, 124, 139-40 (rejecting U.S. position that Article 36 rights are

not individual rights).

may create judicially enforceable individual rights.”

During the Senate hearings on the VCCR, the State

Department advised the Senate that the “Convention is

considered entirely self-executive and does not require any

implementing or complementing legislation.”” The ICJ

rulings in LaGrand and Avena therefore define self-

executing treaty obligations of the United States, which

are the supreme law of the land under Article VI of the

U.S. Constitution, and hence binding rules of decision to

be applied by all state courts acting upon legal claims of

the kind at issue here.”

Requiring the several States to recognize Petitioners’

individual rights would plainly advance U.S. diplomatic

interests. Ever-increasing numbers of Americans work and

travel abroad each year, in an expanding array of foreign

countries. As of 2004, over 160 countries were signatories

to the VCCR.™ State-to-state enforcement of the VCCR

through the already overburdened diplomatic process

necessarily provides only partial protection to American

" Cf. United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (if

a treaty “is self-executing, it would appear that a court must enforce it

on behalf of an individual regardless of the offensiveness of the practice

of one nation to the other nation”); accord Sosa v. Alvarez-Machain, 542

U.S. 692, 727, 734-35 (2004) (distinguishing rights under a treaty that

the political branches have declared to be non-self-executing, and those

under a self-executing treaty such as the VCCR).

* Sen. Exec. Rep. 91-9, at 5 (statement of J. Edward Lyerly,

Deputy Legal Advisor for Administration of the State Dep't); see also

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

Intro. Note preceding § 464 (3d ed. 1987).

* When ratification of the VCCR was pending, the Senate asked:

“What is the effect of the convention on (a) Federal legislation; and (b)

State laws?” The State Department answered, in relevant part: “To the

extent that there are conflicts with Federal legislation or State laws the

Vienna Convention, after ratification, would govern as in the case of

bilateral consular conventions.” Sen. Exec. Rep. No. 91-9, at 18.

“ See Status of Multilateral Treaties Maintained by the U.N.

Secretary General, available at http://untreaty.un.org/sample/English

InternetBible/partl/chapterIII/treatyb.asp (last visited Dec. 18, 2005).

citizens traveling abroad. The ICJ’s construction of Article

36 of the VCCR to require judicially enforceable individual

rights preserves diplomatic relations by enabling detained

Americans to use private enforcement in lieu of, or as a

supplement to, this overextended diplomatic process.

The high priority that the President has placed on

defeating international terrorism and protecting national

security requires governments and their respective intelli-

gence agencies to cooperate closely through diplomatic

channels. Yet when the several States refuse to respect our

consular obligations, it is only a matter of time before

those diplomatic relations become strained. Americans

detained abroad are far less likely to receive their consular

rights when the country detaining them can charge the

United States with having failed to comply with its own

diplomatic obligations.” For a state court to refuse to

acknowledge that the VCCR provides a judicially enforce-

able individual right undermines the effective enforcement

of the VCCR, and places even more pressure on over-

worked American diplomats.

It is for these reasons, among others, that other

national courts - in Germany and Canada, for example —

have accepted as binding the ICJ’s interpretation that the

VCCR creates judicially enforceable individual rights.

Bundesgerichtshof [BGH] [Federal Court of Justice] Nov.

* For example, in 1995, an American citizen, Harry Wu, was

arrested in China, charged with espionage, and held incommunicado for

over a week. U.S. State Department attempts to gain access to Mr. Wu

were rebuffed by China on the pretext that, on at least two prior

occasions, U.S. authorities had failed to comply with a minor provision

of the U.S.-China Consular Convention far less important than VCCR

Article 36 (the requirement that each party report the death of any

foreign national to the deceased’s consulate). U.S. Says China Misled It

on Scholar’s Whereabouts; Envoy Says He Took 12-Hour Taxi Ride in

Remote Region Based on Misinformation, S.F. Examiner, July 4, 1995,

at Al2 (noting the Wu situation had harmed U.S.-China relations);

Transcript of U.S. State Dep’t Press Briefing, July 6, 1995, 1995 WL

407848, at *12-14 (F.D.C.H.) (State Dep’t Spokesman Nicholas Burns).

7, 2001, 5 Entscheidungen des Bundesgerichtshofes in

Strafsachen [BGHSt] 116 (F.R.G.); Regina v. Partak,

(2001) 160 C.C.C.3d 553, 9] 25-26 (Ont. Super. Ct.) (Can-

ada), available at 2001 CarswellOnt 4954 (Westlaw).

Moreover, in its first encounter with this question, this

Court acknowledged that the VCCR “arguably confers on

an individual the right to consular assistance following

arrest.” Breard, 523 U.S. at 376. Following Breard, the

lower courts have generally assumed, for the purposes of

the cases before them, that a judicially enforceable indi-

vidual right exists.” In erroneously rejecting the enforce-

ability of Article 36 rights, the Oregon Supreme Court

thus acted inconsistently not just with the binding and

supreme law of the land, but also with the clear thrust of

precedents of this Court and other lower courts.

B. The ICJ’s Refusal To Recognize State Pro-

cedural Bars Benefits U.S. Diplomatic In-

terests.

In Bustillo, the Virginia court held that a state proce-

dural default rule could be applied to foreclose a VCCR

claim. But the VCCR is precisely the kind of treaty that

the Framers had in mind when they chose to render

treaties supreme over inconsistent state law. Virginia's

and Oregon’s noncompliance with the ICJ’s ruling in Avena

defies the authority of the federal government to bind the

States to international obligations. Left unchecked, the

persistent failures of Virginia, Oregon, and other States of

the Union to comply with Avena’s interpretation of the

* See, e.g., United States v. Lombera-Camorlinga, 206 F.3d 882

(9th Cir. 2000); United States v. Chaparro-Alcantara, 37 F. Supp. 2d

1122, 1125 (C.D. Tl. 1999) (“In light of the language in Article 36 and

the above cited authority, the Court finds that [defendants] have an

individual right to consular notification under Article 36 which in turn

grants them standing to object to a violation of that provision.”); State v.

Lopez, 633 N.W.2d 774, 783 (lowa 2001) (collecting cases).

VCCR will inevitably alienate this nation from its closest

allies.

The ability of the United States to present a credible

diplomatic face to the world turns critically upon the

national government’s ability to make authoritative

commitments to international agreements. For that

reason, this Court repeatedly has recognized that “[nJo

State can rewrite our foreign policy to conform to its own

domestic policies.” United States v. Pink, 315 U.S. 203, 233

(1942); see also id. (“Power over external] affairs is not

shared by the states; it is vested in the national govern-

ment exclusively.”); Crosby, 530 U.S. at 377 (“Quite simply,

if the [state] law is enforceable the President has less to

offer and less economic diplomatic leverage as a conse-

quence.”). Under the Articles of Confederation, the Conti-

nental Congress possessed the treaty power, but could not

effectively enforce treaty obligations upon the States.” As

a result, States were able to undermine agreements

negotiated on behalf of the United States as a whole -

leading to international skepticism of the fledgling United

States as a dependable treaty partner.

In responding to the diplomatic paralysis resulting

from the diverging state stances on foreign policy, the

Framers specifically included treaties under the Suprem-

acy Clause of the Constitution as part of the “Supreme

Law of the Land,” U.S. Const. art. VI, cl. 2. By so doing,

” Article IX of the Articles of Confederation granted Congress sole

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

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

legislative power of the respective States shall be restrained from

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

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

species of goods or commodities whatsoever.” Articles of Confederation

and Perpetual Union, art. IX. The Continental Congress, however, had

no authority to regulate interstate or foreign commerce. See id. art. II

(“Each state retains its sovereignty, freedom, and independence, and

every power, jurisdiction, and right, which is not by this Confederation

expressly delegated to the United States, in Congress assembled.”).

the Framers sought to guarantee, in John Jay’ words,

that “treaties ... will always be expounded in one sense

and executed in the same manner — whereas adjudications

on the same points and questions, in [the several] States,

. .. will not always accord or be consistent.””

In Avena, the ICJ noted that nine States had violated

Article 36(1) of the VCCR a total of fifty-one times by

failing to provide detained Mexican nationals with their

consular rights under the treaty. See Avena at J 15. These

violations have damaged relations between the United

States and its closest allies.”

The ICJ consistently has ruled that the application of

procedural default rules to prevent individuals from raising

claims under Article 36(1) of the VCCR violates Article 36(2)

of the VCCR, which requires states to give “full effect” to the

consular rights enumerated in Article 36(1). This Court’s

failure to direct the several States to adhere to the ICJ’s

interpretation of Article 36 would allow those States to

undermine the United States’ diplomatic credibility and

prevent the United States from speaking with one voice.

Allowing individual States to apply procedural bars to

block the effective implementation of Article 36 rights

* The Federalist No. 3, at 15 (John Jay) (Robert Scigliano ed.,

2000).

* Officials of our nearest neighbors have openly declared that the

failure of American state authorities to provide their nationals with

timely consular access has “strainled]” bilateral relations. Raymond

Bonner, U.S. Bid To Execute Mexican Draws Fire, N.Y. Times, Oct. 26,

2000, at A20 (quoting Jorge G. Castaneda, foreign policy advisor to

Mexican President Fox). In 2002, even before the [CJ issued its final

judgment in Avena, Mexican President Vicente Fox even took the

extraordinary step of canceling a trip to President Bush's Texas ranch

as “‘an unequivocal signal of rejection of the execution’” of a Mexican

national who had not been informed of his consular rights. Knowlton,

supra note 25, at 1 (quoting President Fox’s representative); see also

Nickerson, supra note 25, at A2 (describing statements by Canadian

government officials responding to execution of Canadian citizen

Stanley Faulder who had been denied consular rights).

would undermine the safety of Americans living and

traveling abroad. There are currently at least twenty-five

nations“ — presiding over one-third of the world’s popula-

tion” — that have federal systems with diverse state laws,

courts and procedures. If states and provinces in each of

these countries could invoke local procedural bars to

excuse noncompliance with the VCCR, as Virginia and

Oregon have done here, the protections afforded by that

treaty to detained American citizens would quickly become

meaningless.

As diplomats, Amici have struggled to secure the

States’ cooperation in implementing VCCR obligations. In

1998, Secretary of State Madeleine Albright, a signatory to

this Brief, wrote to the Governor of Virginia with regard to

Angel Francisco Breard, a Paraguayan national for whom

the ICJ granted a provisional measure directing the

United States to stay nis execution because Virginia

officials had ignored his VCCR rights.“ In requesting that

the Governor exercise his powers to stay Breard’s execu-

tion, Secretary Albright explained that she was “‘particu-

larly concerned about the possible negative consequences

“ Argentina, Australia, Austria, Belgium, Bosnia & Herzegovena,

Brazil, Canada, Comoros, Ethiopia, Germany, India, Malaysia, Mexico,

Micronesia, Nigeria, Pakistan, Saint Kitts & Nevis, Serbia & Montene-

gro, South Africa, Spain, Switzerland, Russia, United Arab Emirates,

United States, Venezuela. See U.S. Department of State, Country

Background Notes, available at http://www.state gov/r/pa/ei/bgn/ (last

visited Dec. 19, 2005). Indeed, the recently formed Republic of Iraq may

soon become the newest member of the community of federalist nations

and is one country in which a large number of Americans are almost

certain to be present in the near future.

“ Objectives, Center for the Study of Federalism, Temple Univer-

sity, at http://www.temple.edu/federalism/objectives.htm] (last visited

Dec. 18, 2005).

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

Jonathan I. Charney & W. Michael Reisman, Agora: Breard, 92 Am. J.

Int'l L. 666, 671-72 (1998).

lof the execution] for the many US. citizens who live and

travel abroad.’™ It is precisely to ensure that foreign

provinces cannot claim a right to violate national obliga-

tions that the State Department has since taken such

great pains to instruct state and local law enforcement

officials on the issue of consular notification.

Failure to hold the several States accountable for U.S.

obligations under international] law would set a dangerous

precedent. As the first country designed on federalist

principles, the United States historically has served as a

model for many other nations. Indeed, many of these

nations are seeking to reconcile their international obliga-

tions with their federal structures and continue carefully

to observe U.S. practices.“ A government’s capacity to

ensure the reciprocity critical to international cooperation

among nations is only as strug as the compliance that

those national governments can obtain from their feder-

ated parts.” This Court should not allow the several

Secretary Albright observed, “‘could lead some countries to contend

incorrectly that the U.S. does not take seriously its obligations under

the Convention’” and “‘could be seen as a denial by the United States

of the significance of international law and the Court's processes in its

international relations and thereby limit our ability to ensure that

Americans are protected when living or traveling abroad.’” Jd.

“ For example, Brazil recently passed a constitutional amendment

that allows the Attorney General to “federalize” state court cases

involving human rights violations. The relevant amendment states that

this power shall be exercised in order to assure the fulfillment of

obligations incurred by the Brazilian government through international

human rights treaties. Emenda Constitucional No. 45, de 30 de

dezembro de 2004, available at https://www.planalto.gov.br/ccivil_03/

Constituicao/Emendas/Emc/emc45.htmé#art109 (last visited Dec. 19,

2005) (author’s translation).

“ In India, for example, the laws of five states on “religious

conversion” have so affected the work of Christian missionaries that the

State Department’s Consular Information Sheet for India specifically

warns Americans who wish to engage in missionary activities in these

states to seek legal advice regarding the state legislation. See U.S.

(Continued on following page)

States to erect parochial legal barriers that would render

meaningless our foreign policy objectives and international

obligations.

Ill. Allowing State Courts To Refuse To Enforce the

Avena Ruling Also Would Damage U.S. Foreign

Policy Interests Governed by Other Treaty Re- -

gimes.

As U.S. diplomats, Amici consistently have sought to

ensure the proper functioring of the international treaty

regimes to which the United States is a party. Amici

believe that the state courts’ failure to respect the ICJ’s

determinations in this context will threaten U.S. commer-

cial and economic interests in other treaty regimes.

The ICJ dispute-settlement provisions in the VCCR

are not sui generis. After World War II, when international

trust and diplomacy were at a low ebb, the United States

took the initiative to establish numerous treaties with its

former enemies that resolved disputes through binding

decisions of the ICJ.”

In return for our commitment to abide by ICJ judg-

ments, the United States gained not only the cooperation

of other states, but also a powerful diplomatic tool for

encouraging non-judicial resolution of disputes.” Even

Department of State, Consular Information Sheet: India, Aug. 24, 2005,

available at http//travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html (last

visited Dec. 19, 2005). :

“ See, e.g., Treaty of Friendship, Commerce and Nevigation, Feb.-

2, 1948, U.S.-Italy, art. XXVI, 63 Stat. 2255, 2294; Treaty of Friendship,

Commerce and Navigation, Oct. 29, 1954, U.S.-F.R.G., art. XXVII, 7

U.S.T. 1839, 1867; Treaty of Peace with Japan, Sept. 8, 1951, art. 22, 3

U.S.T. 3169, 3188-89. -

” Indeed, “[mjany cases are settled before a final judgment is

reached,” giving the [CJ “an important ‘pacifying effect’ on disputes at

all stages of litigation.” Colter Paulson, Compliance with Final Judg-

ments of the International Court of Justice Since 1987, 98 Am. J. Int'l L.

434, 436 (2004).

nations with longstanding histories of extreme hostility

toward one another have reached agreement on serious

diplomatic disputes after referral (or threat of referral) to

the ICJ.“

The “mutuality and reciprocity” that forms the foun-

dation of international relations is particularly critical for

the effective operation of our nation’s commercial and

economic treaties. See generally United States v. Arjona,

120 U.S. 479, 487 (1887) (“[I]nternational law obligations

are of necessity reciprocal in nature.”). The continuing

ability of the United States to secure international treaty

regimes vital to the realization of our national interests

throughout the world, and to secure reliable enforcement

of those regimes already in place, depends directly upon

our reputation for honoring the international obligations

that we undertake.

The last half of the twentieth century has witnessed

the direct application of international trade agreements to

a multitude of commercial relationships between individu-

als and nations. A vast array of agreements dealing with

international trade and foreign investment now call for

binding arbitration or resort to permanent international

tribunals to resolve intractable disputes. Moreover, many

important economic treaties vest compulsory jurisdiction

in the ICJ, including international sovereign disputes

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

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

court). For example, when the United States inadvertently downed an

Iranian civilian airliner, killing 290 passengers and crew, despite our

strained diplomatic relations, Iran sought a peaceful solution by

bringing suit before the ICJ, and the parties ultimately were able to

achieve a negotiated settlement. Aerial Incident of 3 July 1988 (Iran v.

U.S.), 1989 1.C.J. 132 (Dec. 13), and 1996 1.C.J. 9 (Feb. 22).

ranging from the international recognition of copyrights”

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

The United States has also agreed to submit to the

jurisdiction of other binding arbitration mechanisms to

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

recent significance to commercial interests are Chapter 11

of the North American Free Trade Agreement (“NAFTA”)”

and the Understanding on Rules and Procedures Govern-

ing the Settlement of Disputes (“DSU”) of the World Trade

Organization (“WTO”). Together, NAFTA and the WTO

grant private interests and sovereign nations, respectively,

compulsory resort to binding arbitral tribunals.

The benefits stemming from these treaties and their

binding dispute-resolution mechanisms are not illusory.

Since 1996, American investors have initiated arbitral

proceedings under NAFTA against the government of Can-

ada at least eight times, and against the government of

Mexico at least twelve times, with at least five of those cases

resulting in compensation for the American investors, while

“ Universal Copyright Convention, art. XV, opened for signature

Sept. 6, 1952, art. XV, 6 U.S.T. 2731, 2743, 216 U.N.T.S. 132, 146.

1970, 28 U.S.T. 7645, 7708, 1160 U.N.T.S. 231, 262.

* International Air Transport Agreement, art. IV, § 3, opened for

signature Dec. 7 1944, 3 Bevans 922, 925, 84 U.N.T.S. 389, 394; see also

Convention on International Civil Aviation, ch. XVIII, art. 84 opened for

signature Dec. 7, 1944, 3 Bevans 944, 966, 15 U.N.T.S. 295, 352.

“ North American Free Trade Agreement, U.S.-Can.-Mex., ch. 11,

Dec. 17, 1992, 32 1.L.M. 605, 639 (1993).

“ In the DSU, WTO members agree to submit to binding arbitra-

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

recourse to and abide by the rules and procedures” of the DSU. Under-

standing on Rules and Procedures Governing the Settlement of

Disputes, art. 23(1), in Final Act Embodying the Results of the Uruguay

Round of Trade Negotiations, Marrakesh, Apr. 15, 1994, 33 I.L.M. 1125,

1241 (1994).

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

disputes that have been initiated before WTO tribunals

were brought by the United States as a complainant.”

There is no guarantee that the diplomatic fallout from

the several States’ ongoing flouting of the ICJ and the

VCCR can be limited to those settings. We cannot expect

other nations to abide by the judgments of international

dispute-resolution and arbitral bodies, if our state courts

regularly fail to accord comity and respect to the ICJ’s

treaty interpretation in LaGrand and Avena. Condoning

the failure of the several States to comply with the treaty

interpretation in Avena would damage U.S. interests

under numerous treaty regimes that ensure the security of

our citizens and safeguard our commercial interests, as

well as undermine the United States’s ability to negotiate

new diplomatic covenants.

“ For a list of NAFTA Chapter 11 cases, see NAFTA Investor-State

Arbitrations, at http://www.state.gov/s/l/c3439.htm (last visited Dec. 18,

2005), and NAFTA-Chapter 11-Investment, at http://www.dfait-maeci.ge.

ca/tna-nac/NAFTA-en.asp (last visited Dec. 18, 2005). See also Dep't of

Transp. v. Public Citizen, 541 U.S. 752, 760 (2004) (recognizing U.S.

adherence to the decision of a NAFTA arbitration panel); Canada v.

S.D. Myers, Inc., [2004] F.C. 38, 9 37, 39 (affording a “high level of

deference” to a NAFTA Tribunal in affirming a $7 million award to an

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

sensitive to the need of a system for predictability in the resolution of

disputes”).

* See, e.g., Panel Report, European Communities - Regime for the

Importation, Sale, and Distribution of Bananas, WT/DS27/R/USA (May

22, 1997) (complaint by the United States); Panel Report, European

Communities - Measures Concerning Meat and Meat Products,

WT/DS26/R/USA (Aug. 18, 1997) (complaint by the United States). For

a list of past and pending DSU cases, see WTO, Chronological List

of Dispute Cases, at http://www.wto.org/english/tratop_e/dispu_e/dispu_

status_e.htm (last visited Dec. 18, 2005).

CONCLUSION

In cases such as this, this Court should look beyond

narrow U.S. interests to the “mutual interests of all

nations in a smoothly functioning international legal

regime” and, whenever possible, should “consider if there

is a course that furthers, rather than impedes, the devel-

opment of an ordered international system.” For the

foregoing reasons, Amici urge the Court to find that the

nation’s diplomatic, commercial, and economic interests

will best be served by directing the state courts whose

decisions are under review to adhere faithfully to the ICJ’s

interpretation of Article 36, as set forth in the LaGrand

and Avena decisions.

Respectfully submitted,

JOSHUA RATNER HAROLD HONGJU KOH

Of Counsel Counsel of Record

WIGGIN AND DANA LLP ALLARD K. LOWENSTEIN ~~

400 Atlantic Street INTERNATIONAL HUMAN

P.O. Box 110325 RIGHTS CLINIC:

Stamford, CT 06911-0325 NATIONAL LITIGATION PROJECT

(203) 363-7635 Yale Law School

127 Wall Street

New Haven, CT 06511

(203) 432-1660

December 22, 2005 Counsel for Amici Curiae

“ Societe Nationale Industrielle Aerospatiale v. United States Dist.

Court, 482 U.S. 522, 555, 567 (1987) (Blackmun, J., concurring in part

and dissenting in part).

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

from 1997-2001 and as U.S. Ambassador and Permanent

Representative to the United Nations from 1993 to 1997.

Morton Abramowitz, a Career Ambassador, served as

Assistant Secretary of State for Intelligence and Research,

U.S. Ambassador to the Mutual and Balanced Force

Reduction Negotiations in Vienna, U.S. Ambassador to

Turkey and Thailand, and Deputy Assistant Secretary of

Defense for Inter-American, East Asian and Pacific Af-

fairs.

Stephen W. Bosworth served as U.S. Ambassador to the

Republic of Korea, the Philippines, and Tunisia, Director

of the State Department Policy Planning Staff, Principal

Deputy Assistant Secretary for Inter-American Affairs,

and Deputy Assistant Secretary for Economic Affairs.

Jeffrey Davidow, a Career Ambassador, served as U.S.

Ambassador to Mexico, Zambia, and Venezuela. From

1996 to 1998, he was Assistant Secretary of State for

Inter-American Affairs.

Herbert J. Hansell served as the Legal Adviser of the

U.S. Department of State from 1977 to 1979, Member of

the Permanent Court of Arbitration, The Hague, from

1978 to 1980, and Senior Adviser and Ambassador to the

Mideast Peace Negotiations in 1980. He served as Adviser

to the United States Trade Representative on interna-

tional investment in 1980, and as Adviser to the American

Law Institute Restatement of the Foreign Relations Law

of the United States.

James C. O’Brien served as Special Presidential Envoy

for the Balkans from 2000 to 2001, as Principal Deputy

Director of the State Department Policy Planning Staff

from 1998-2000, and as a State Department official from

1989 to 2001.

Thomas R. Pickering served as Under Secretary of State

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

Ambassador and Permanent Representative to the United

Nations from 1989 to 1992. A Career Ambassador, during

his diplomatic career he also served as Assistant Secretary

of State for Oceans, Environment and Science, U.S. Am-

bassador to The Russian Federation, India, Israel, El

Salvador, Nigeria, The Hashemite Kingdom of Jordan, and

as Executive Secretary of the Department of State and

Special Assistant to the Secretary.

Wendy R. Sherman served as Counselor of the Depart-

ment of State, Special Advisor to the President and Secre-

tary of State on North Korea, and Assistant Secretary of

State for Legislative Affairs.

Nancy Soderberg served as Deputy Assistant to the

President for National Security Affairs and as the US.

Ambassador and Representative for Special Political

Affairs at the United Nations.

Strobe Talbott served as Deputy Secretary of State from

1994 to 2001, and Ambassador-at-Large and Special

Advisor to the Secretary of State for the former Soviet

Union from 1993 to 1994. |

Frank G. Wisner, a Career Ambassador, served as U.S.

Ambassador to India, the Philippines, Egypt, and Zambia.

He also served as Under Secretary of Defense for Policy,

Under Secretary of State for International Security Af-

fairs, and Senior Deputy Assistant Secretary of State for

African Affairs.

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.