Amicus Curiae Brief — Sanchez-Llamas v. Oregon

is | Fil. ” :

| DFFICE OF THE CLERK

whey 04- es) 05-5] SUPREME COURT, U.S.

In the Supreme Court of the Anited States

MOISES SANCHEZ-LLAMAS

Petitioner,

V.

OREGON

MARIO A. BUSTILLO

Petitioner,

Vv.

GENE M. JOHNSON,

DIRECTOR VIRGINIA DEPT. OF CORRECTIONS

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF OREGON AND

THE SUPREME COURT OF VIRGINIA

BRIEF FOR AMICI CURIAE LAW PROFESSORS IN

SUPPORT OF PETITIONERS

David Sloss, John F. Stanton’

Associate Professor of Law, “Counsel of Record

Saint Louis University Helen K. Michael

School of Law Howrey, LLP

3700 Lindell Blvd. 1299 Pennsylvania Avenue N.W.

St. Louis, MO 63108 _ Washington, D.C. 20004

(202) 783-0800

Attorneys for Amici Curiae

——

| TABLE OF CONTENTS

TABLE OF AUTHORITIES .........-.0::-00:00++ CREAT MOP Os ME Beer ea EEN

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1. Decisions in Treaty Cases from 1789 to 1829 Support a

Strong Presumption in Favor of Judicial Remedies for

Violations of Individual Treaty Rights ..................::cceceecseecseseeteneeeeseeeees

A. This Court Regularly Granted Remedies to Plaintiffs

in Cases Where the Treaty at Issue Did Not Create a

i OE aindisnisacibetistecnceisiepiintioinsinsdncsictedartpsomnuabossnbnbetaiindies

B. This Court Regularly Awarded Judgment for

Defendants in Cases Where the Treaty Did Not

Expressly Empower Individuals to Invoke the Treaty........................

C. The Cases Where Treaty Claimants Lost Are

Consistent with the Presumption in Favor of Judicial

Remedies for Violations of Individual Treaty Rights....................--.

D. Other Cases From This Period Are Consistent with

the Presumption in Favor of Judicial Remedies for

Violations of Individual Treaty Rights ................cecceeeceeeteeeeseesenes

E. Foster is Consistent with the Presumption in Favor

of Judicial Remedies for Violations of Individual

cin sleceinscicincinsinctesinibiiisrintnnniinieniesenbiaabebinanenntin esneavenssvesansaeeens

Il. More Recent Decisions by this Court Also Support a

Strong Presumption in Favor of Judicial Remedies for

Violations of Individual Treaty Rights ................2.c.cceececeeeeneeeeesteeteetetees

II]. Individuals Who are Harmed by Violations of Primary

Rights Protected by the VCCR are Entitled to Judicial

BE aisnatcthacnsiencsnsinisesstineiipssniccihanncieduiianidipsinguiiasiaibeidiaibaiigpisiateiphtbindiiatiaiia sad. 24

A. Article 36 of the VCCR Protects Primary Individual

B. The State of Virginia May Not Invoke Procedural

Default Rules if Doing So Would Contravene U.S.

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LAAN TEN Roc cdcesisatiaidshitinibaiienapeilaninisien sqnibtgnatbigetacdeniualaiantapetsinasibeincambennntiiiiabed

INDEX TO APPENDICES

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1

24

26

30

TABLE OF AUTHORITIES

Page(s)

CASES

American Insurance Associate v. Garamendi,

P:R ntarineinttincarctnicaniatinaie slice isaac edeimmgdsliehcniaiaaiate 19, 20

Argentine Republic v. Amerada Hess Shipping Corporation,

ee a MT isitiisitetisecissedine icdonndastalencteskciyes bislssaiinsiesiidippdbtdaliiastetiundiniechealts aa

ey BOE Ci eitakiestishitensetsitieientiniptlitnadabicinmepeiiatiain 19

Gee's Lasabe v. Roctastar, JOU DB. SSS CTGI2D. ...scc.cccciesescvorscnsssesovseecensecens 12

oo DL oer 27, 28

Carenanl 6. Bante. 29 U.S. 160. (EGZS) ...00-ccrceessccessesessvacscnsssese cose scsesseosseseesonynes 10

Chew Heong v. United States, 112 U.S. 336 (1884)... cccccceeecceeseceseeceteeeee 18

Chirac v. Lessee of C her, 15 Rac EEE Wii cnssinssciensbinighasiebetommeuttetieceuaneient 7,8

Cleans © Se, DE GLE. FE GIGI) sccnscnicwincnscisesevemoresossnnnbtseosnipce-eseens ase

Silane Be BE i, FC iscssscasecneespninrnnsicsevenssernssionencenensiqanion 7.8

De la Croix v. Chamberlain. 28 U.S. 599 (1827) .........ccecsccccseseresesseceeeseeeseees 12

Edve \. Robertson (Head Money Cases).

I a ies clipe indiibniblelaneslitl 21, 23

Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 (1812). ......ccccccecccseeeeseeeeees 10

Fitzsimmons v. Newport Insurance Company, a

& US. 185 (1808).............. sslsiatentioweddetinitaniaiedbamnideciipinisibneadpiae sian siwccueiiawts

Foster v. Madigan, ZT US.. FSD (OGIO) coscsscvinesicsesieicsstaanigtaanmaaan 11, 15, 16, 22

Ganray v. Bias, 133 US. TI (IGG ...ccsccciecettestssartianttaeiinain 24

Gesrata v. Featiasaed, 3 UZ..3 (1 FOO wncssssssssistivicintstionmaamee 10

Giass v. The Soap Baaay. 3 UD. GE) THD) ovencsvescssnsysscroiccsnsnisstbiamamaae 12

Rerceurt v. Galliard, 23 U.S. S23 IBZ FD x. cesrsvscivinerestnenntsiaaaaee 13

Harden v. Fisher, 14 U.S. 300 (1816) .................2...... Soe sdidinnetdeapetaee 13

Henderson v. Poindexter’s Lessee, 25 U.S. 530 (1827) ......cccccccceeececeeeeceeceeens 13

Fliggonson v. Mein, B U.S. 415 (1GBB) .....0cccccc.scccscoeneseincossnonensnsensoestonsnnetatien 7.9

Hopkirk v. Bell, 7 U.S. 454 (1806) ...................2 sesscoeeeeeanannessonnuneencananasennenn 7.9

Heaphes v: Edwards, 22 U.S. 469 (1GB4)....0000000000.0sc0cessseccessssnnnsssonisaceooenssenniss 7,8

. . ae. we Lee EG: |): PR ee 10

M'livaine v. Coxe's Lessee, 8 U.S. 209 (1808) ............ccccrresocercccsccsssssesscerenes i

Marbery v. Madigan, 3 U.S. 13°F (EBB) .ccccessecesesinnssessnipensnicapenbsenateaenmananaal 5

Moodie v. The Ship Phoebe Anne, 3 U.S. 319 (1796) .........cccc cc ccceecececceceseeeeees 10

Norton v. Southern Utah Wilderness Alliance,

FOS UB. GB CGI) oo coscsineesscvesscvensevedoissssessieniccsunassbeuiginuatansinaiiaananinnnnn 4

Ogden v. Blackledge, 6 U.S. 272 (1804).............. cvintgveiiiberiimeien nn 7.9

Gov v. Madgpan, U7 U.S. G33 (IBID) .ccocexsesssssiscnsitnesessensutecieammaiammamaananan 10

Owings v. Norwood’'s Lessee, 9 U.S. 344 (1809) ooo... ccccccccecceseseestseeeereee de 14

Powell v. McCormack, 395 U.S. 486 (1969) .....ccccccoccscresccscccescecscncsescscoscccnseseres 6

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Smith v. Maryland, 10 U.S. 286 (1810) ...cc.cccecscssssesessesssvevsvesevereserecsesesseecsveee 12

Society for Propagation of Gospel v. New Haven,

EE LY A a ee 7,8

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a, rc, 1 e sssesdeccuasnessadoonsessontecuedeoeneese 12

a scsuusinbentssatiabtensnceel 6

I, ED, EE © PD, ..«. cscncnsccscceccoccnecsccscoscosossoece CERES ER rane 12

The Nuestra Senora de la Caridad, 17 U.S. 497 (1819)........cccccccccccceceeeseeeeeees 12

SRE ER OE aD 7

United States v. Lawrence, 3 U.S. 42 (1795).............:ccccccssscsssrersceresessesserseseees 13

United States v. Rauscher, 19 U.S. 407 (1886) ................ccccccccececceeceeceecess 17,18

United States v. The Schooner Peggy, 5 U.S. 103 (1801) .............cecceeceeeeeeees 7,9

Ware v. Hylton, 3 U.S. 199 (1796) ...cccccecccesscesscecscesesecesseesesesececens pines 7,9

STATUTES

Agreement Concerning the Foundation “Remembrance,

Responsibility and the Future,” U.S.-F.R.G. 39 1.L.M. 1298 200.00. 20

Treaty Concerning Immigration, Nov. 17, 1880 U.S.-China,

Toa a lat cei detiensntednegepntetassnscsonsenees ae

Treaty of Commerce and Navigation, Feb. 21, 1911, U.S.-

is sasndaaittnnetboosoqoennosenseponnenees a

I ETE cdc cas acdanascisedednapnsasennensesoneceseiece secinnantnansipaaigioeiadabe 28

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IIT eR RADE Lan teat Rime 4.25

OTHER AUTHORITIES

Avena and Other Mexican Nationals (Mexico v. United

IE Ce iictitictvnsnieniscnsccssenictiiniianiatieapseeminceitapdalaadipiiiinaiieacmmibiel

Mantin S. Flaherty, History Right?: Historical Scholarship,

Original Understanding, and Treaties as “Supreme Law of

the Land,” 99 COLUM. L. REV. 2095 (1999) .00.........cccccccecceceseeeeecereeseeetenereeees 29

-Henry M. Hart. Jr. & Albert M. Sacks. THE LEGAL

PROCESS: BASIC PROBLEMS IN THE MAKING AND

APPLICATION OF LAW (Eskridge & Firickey, eds. 1994) .........ccccccccececeeeeseeeeeeeen 3

David Sloss, Constitutional Remedies for Statutory Violations,

RE, Ge. Fie SID OD ccccscinnscastnastpesnansunannnnetinenscenenetianpnamintagsentta 20

Restatement (Third) of the Foreign Relations Law of the

United States § 115( 1 fa)......... SAE PE ee mae ne eree se

Carlos M. Vazquez. Treatv-Based Rights and Remedies of

Individuals, 92 COLUM. L. REV. 1082 (1992)..........c0ccc-sscsssesecseeeeseesereressmde 29

vl

INTEREST OF AMICI CURIAE

Amici cunae respectfully submit this bnef addressing

the question whether the Vienna Convention on Consular

Relations creates individually enforceable nghts. Amici are

professors of law whose areas of expertise include

international law, federal courts, and U.S. foreign relations

law. We have an interest in providing this Court with an

historical perspective on the judicial] enforcement of treaties

in U.S. courts. Amici are listed in the appendix to this brief.!

SUMMARY OF ARGUMENT

Artcle 36(1) of the Vienna Convention on Consular

Relations (VCCR) protects the pnmary nghts of individuals.

Under the Supremacy Clause. state courts are bound to

enforce the treaty on behalf of individuals whose primary

nghts are violated. Analysis of Supreme Court decisions in

the first forty vears of U.S. constitutional history shows that

the Framers believed that courts do not need express

authonzation from the political branches to provide

individual remedies for violations of treaty mghts. In

accordance with the Framers’ onginal understanding.

individual defendants like Mr. Sanchez-Llamas have the

capacity to invoke a treaty before a domestic court if they

were harmed by a violation of their treaty-based pnmary

rights, even if the treaty at issue is silent with respect to

domestic judicial remedies. Similarly, individual plaintiffs

have the capacity to invoke a treaty before a domestic coun

if domestic law grants them a nght of access to court (as the

| The parties’ letters of consent to the filing of amici briefs have

been lodged with the Clerk. Pursuant to Rule 37.6 of the Rules of

the Court, amici cunae state that no counsel for a party has written

this bnef in whole or in part and that no person or entity, other

than amici. their members. or their counsel. has made a monetary

contribution for preparing or submitung this bnef.

2

Virginia habeas statute does for Mr. Bustillo) and they were

harmed by a violation of their treaty-based primary nghts,

even if the treaty at issue is silent with respect to domestic

judicial remedies.

In State v. Sanchez-Llamas, the Oregon Supreme

Court adopted a presumption that individual litigants cannot

obtain remedies for treaty violations unless the treaty itself

creates a private nmght of action. That presumption is

contrary to the Framers’ onginal understanding of the

judiciary’s role in treaty enforcement. Between 1789 and

1829, this Court decided 34 cases in which an individual

litigant raised a claim or defense on the basis of a treaty. In

every case where the Court found a violation of an

individual's treaty-based pnmary nght - a total of 18 cases —

the Court granted a remedy. In two of those 18 cases, the

individual sued to enforce a treaty that created an express

private night of action. In the other 16 cases, though, the

Court awarded a remedy even though the treaty at issue did

not create a private nght of action. This consistent pattern of

Supreme Court decisions during the first forty vears of U.S.

constitutional history provides powerful evidence of the

Framers’ views. These cases demonstrate that the

presumption adopted by the Oregon Supreme Court is

contrary to the Founders’ original understanding of the

judiciary’s role in treaty enforcement.

The Oregon Supreme Court’s presumption against

judicial remedies for treaty violations is also squarely at odds

with two centumes of consistent Supreme Court

jurisprudence. For more than two hundred years, this Court

has consistently granted judicial remedies in cases where a

treaty protects an individual's pnmary nghts and those treaty

nghts have been violated. In fact. this Court has never

denied a judicial remedy to an individual whose treaty nghts

were violated, except in cases where Congress enacted a

statute that superseded the treaty under the later-in-time rule.

There is no dispute that Article 36 of the VCCR is the

Law of the Land under the Supremacy Clause. Moreover, it

is evident from the plain meaning of Article 36 that the treaty

protects the primary nights of individuals. Therefore, this

Court should hold that any individual who has been harmed

by a violation of his primary nghts under Article 36 is

entitled to a judicial remedy for that violation, except insofar

as amendments to the federal habeas statute enacted after

ratification of the VCCR may preclude the availability of

federal habeas relief for some petitioners who would

otherwise be entitled to a judicial remedy.

ARGUMENT

I. DECISIONS IN TREATY CASES FROM 1789

TO 1829 SUPPORT A STRONG PRESUMPTION

IN FAVOR OF JUDICIAL REMEDIES FOR

VIOLATIONS OF INDIVIDUAL TREATY

RIGHTS

Treaties frequently create primary rights for

individuals. For the purpose of this brief. an individual has a

“primary night” under a treaty if a state party to the treaty has

a legal duty under the treaty to behave in a particular way, or

to refrain from behaving in a particular way, with respect to

that individual. See generally Henry M. Hart, Jr. & Albert

M. Sacks, THE LEGAL PROCESS: BASIC PROBLEMS IN THE

MAKING AND APPLICATION OF LAW (Eskridge & Fnickey,

eds. 1994), at 130-31 (defining primary duties), and at 136-

37 (noting that a “primary right” is “the mere obverse” of a

duty). Treaties rarely, though, explicitly address the question

whether individuals have a private nght of action — that is, a

night of access to domestic courts. Similarly, treaties usually

do not explicitly address the question whether individuals

have the power to invoke the treaty before a domestic court.

The Oregon Supreme Court assumed that individuals

cannot enforce their primary nghts under the VCCR unless

the Convention itself creates a private right of action. See

State v. Sanchez-Llamas, 108 P.3d 573. 575-78 (Or. 2005).

That assumption is clearly mistaken. In the statutory context,

the Administrative Procedure Act (APA) creates a private

right of action that authorizes individual suits to enforce

federal statutes that do not themselves create a private cause

of action. See, e.g., Norton v. S. Utah Wilderness Alliance,

§42 U.S. 55. 61 (2004) (where plaintiffs sued to enforce a

statute that did not create a private nght of action, Justice

Scalia, wnting for a unanimous court, held that “(t]he APA

authorizes suit” for federal statutory violations “[w]here no

other statute provides a private nght of action”). Similarly.

Virginia's habeas corpus statute grants Mr. Bustillo a private

right of action to advance his claim “that he is detained

without lawful authonty,” Va. Code § 8.01-654. and the

Supremacy Clause requires the Virginia courts to apply the

VCCR as a rule of decision to decide the ments of that claim.

(Since Mr. Sanchez-Llamas is a defendant in a cnminal

proceeding. the question of a nght of action does not anse

because he was haled into court against his will.)

Between 1789 and 1829. this Court consistently

granted remedies to individuals who were harmed by

violations of their treaty-based pnmary mghts, despite the

fact that the treaties at issue did not create pnvate nghts of

action and did not expressly empower individuals to invoke

the treaties before a domestic court. During this period, the

Court decided 34 cases in which an individual litigant raised

a claim or defense on the basis of a treaty.- All 34 cases are

consistent with the following rule: if an individual was

harmed by a past violation of his primary treaty nghts, or if

he is likely to be harmed by a future violation of those nghts,

then the individual is entitled to a judicial remedy, even if the

treaty itself does not create a private nght of action. and even

if the treaty says nothing about the capacity of individuals to

invoke the treaty before a domestic court. This rule is a

corollary of the principle endorsed by the Supreme Court in

Marburv v. Madison “that where there is a legal nght, there

is also a legal remedy . . . whenever that right is invaded.” 5

U.S. 137. 163 (1803) (quoting Blackstone's Commentaries).

If a particular treaty provision is the Law of the Land under

the Supremacy Clause, and that provision protects pmmary

individual nghts, the Marbury pnnciple establishes a strong

presumption that individuals who are harmed by a violation

of their treaty-based primary nghts are entitled to domestic

judicial remedies. See Owings v. Norwood’s Lessee. 9 US.

344. 348 (1809) (Marshall. C.J.) (“Each treaty stipulates

something respecting the citizens of the two nations. and

gives them mghts. Whenever a right grows out of, or Is

protected by, a treaty, it is sanctioned against all the laws and

judicial decisions of the states: and whoever may have this

nght. it 1s to be protected.”>).

Part One of this bnef demonstrates that all 34 treaty

cases decided by the Supreme Court between 1789 and 1829

are consistent with the Marburv principle. These consistent

precedents in the Framing Period provide particularly

powerful evidence of the Framers’ views concerning the

judiciary’s role in the enforcement of treaties. This Court has

emphasized that the force of constitutional precedents “tends

y

- This figure does not include cases involving treaties with

Indian tribes.

10 Increase In proportion to their proximity to the Convention

in 1787." Powell v. McCormack, 395 U.S. 486, 547 (1969).

In the case of treaties, the consistent precedents of this Court

in the initial decades of the Constitution demonstrate with

clarity the contemporaneous understanding that it is the

judiciary’s responsibility to provide remedies for individuals

who are harmed by violations of their treaty-based primary

rights. Moreover, in cases where a court has jurisdiction, the

court does not need express authorization from the political

branches — either in the form of a federal statutory right of

action, or in the form of an express private nght of action in

the treaty — to provide judicial remedies for violations of

individual treaty mghts, because it is the judiciary’s

responsibility within our system of divided government to

supply the remedy for violations of treaty-based primary

nghts.

For ease of analysis, Part One divides the 34 treaty

cases decided by the Supreme Court between 1789 and 1829

into four groups: twelve cases where the plaintiff invoked a

treaty and prevailed on the basis of the treaty: six cases

where the defendant invoked a treaty and prevailed on the

basis of the treaty, ten cases where the party invoking the

treaty lost on the merits of the treaty claim; and six cases that

do not fit into any of the other categories.

A. This Court Regularly Granted Remedies to

Plaintiffs in Cases Where the Treaty at

Issue Did Not Create a Private Right of

Action

Between 1789 and 1829, this Court decided twelve

cases in which an individual plaintiff secured a remedy for a

violauon of a treaty-based primary night. In two of those

cases, the treaty at issue granted the plaintiff a private right of

action. See The Bello Corrunes, 19 U.S. 152 (1821)

(restoring ship and cargo to Spanish shipowners because ship

was captured in violation of bilateral treaty between U.S. and

Spain): The Pizarro, 15 U.S. 227 (1817) (awarding

restitution to Spanish claimants because ship was seized in

violation of bilateral treaty between U.S. and Spain).

In the other ten cases, though, the plaintiff brought

suit on the basis of a domestic right of action, and the treaty

provided a primary rule for deciding the merits of the claim.

See Hughes v. Edwards, 22 U.S. 489 (1824) (suit to foreclose

on mortgage); Soc'vy for Propagation of Gospel v. New

Haven, 21 U.S. 464 (1823) (action for ejectment); Craig v.

Radford, 16 U.S. 594 (1818) (equitable action to divide a

tract of land); Chirac v. Lessee of Chirac, 15 U.S. 259 (1817)

(action for ejectment): Fitzsimmons v. Newport Ins. Co., 8

U.S. 185 (1808) (suit for breach of contract): Higginson v.

Mein, 8 U.S. 415 (1808) (suit to foreclose on mortgage):

Hopkirk v. Bell, 7 U.S. 454 (1806) (suit to recover payment

on bond): Ogden v. Blackledge, 6 U.S. 272 (1804) (suit to

recover payment on bond): United States v. The Schooner

Peggy, 5 U.S. 103 (1801) (libel in admiralty court): Ware v.

Hylton, 3 U.S. 199 (1796) (suit to recover payment on bond).

These cases are analogous to Bustillo v. Johnson. because

Mr. Bustillo brought suit on the basis of Virginia’s habeas

3 In both Bello Corrunes and Pizarro, the Spanish claimants had

an express private right of action under the Treaty of Friendship.

Limits and Navigation, Oct. 27, 1795, art. 20, U.S.-Spain.

reprinted in 2 Treaties and Other International Acts of the United

States of America 318, 334-35 (Hunter Miller ed., 1931)

(hereinafter, “1795 Treaty with Spain™] (“It is also agreed that the

inhabitants of the terntories of each party shall respectively have

free access to the Courts of Justice of the other, and they shall be

permitted to prosecute suits for the recovery of their properties . . .

and for obtaining satisfaction for the damages which they may

have sustained .. . *).

statute, and the VCCR provides a primary rule for deciding

the merits of his claim.

In each of the ten cases cited above, where the

plaintiff brought suit on the basis of a domestic nght of

action, the Court applied the relevant treaty provision as a

rule of decision in the case, despite the fact that the treaty at

issue did not create a private nght of action. In none of these

ten cases did the treaty expressly empower the plaintiff to

invoke the treaty before a domestic court. Nevertheless, in

each case the Court awarded the plaintiff a remedy because

he had been harmed by a past violation of a primary treaty

right. or was likely to be harmed by a future violation of a

primary treaty nght. See Hughes, 22 U.S. 489 (ordering

foreclosure and sale of mortgaged property to secure

individual property right protected by article 9 of Treaty of

Amity, Commerce, and Navigation, Nov. 19, 1794. art. 9.

U.S.-Great Britain, reprinted in 2 Treaties and Other

International Acts of the United States of America, 245, 253-

54 (Hunter Miller ed.. 1931) [hereinafter, “Jay Treaty”):

Soc'v for Propagation of Gospel, 21 U.S. 464 (ordering

restoration to plainuff of land that had been wrongfully

expropnated by state legislative act in violation of article 6 of

the Definitive Treaty of Peace, Sept. 3, 1783, art. 6, U.S.-

Great Britain, reprinted in 2 Treaties and Other International

Acts of the United States of America, 151, 155 (Hunter

Miller ed.. 1931)): Craig, 16 U.S. 594 (ordering defendants

to convey land to plaintiff because defendants had

wrongfully appropriated land in violation of article 9 of Jay

Treaty): Chirac, 15 U.S. 259 (invalidating Maryland jaw and

restoring property rights of French plaintiffs because state

had wrongfully terminated those nghts in violation of article

7 of the Convention Between the French Republic and the

United States of America, Sept. 30, 1800, art. 7, U.S.-France.

reprinted in 2 Treaties and Other International Acts of the

United States of Amenca. 457, 462-63 (Hunter Miller ed..

1931) {hereinafter, “1800 Convention”’]; Fitzsimmons, 8 U.S.

185 (ordering insurance company to make contractual

payment to insured because Bnitish pmze court had

wrongfully condemned the insured ship, in violation of

article 18 of Jay Treaty); Higginson, 8 U.S. 415 (ordering

debtor to pay debt wrongfully withheld from creditor in

violation of article 5 of the Definitive Treaty of Peace);

Hopkirk, 7 U.S. 454 (ordering debtor to pay debt wrongfully

withheld from creditor in violation of article 4 of the

Definitive Treaty of Peace); Ogden, 6 U.S. 272 (ordering

debtor to pay debt wrongfully withheld from creditor in

violation of article 4 of the Definitive Treaty of Peace); The

Schooner Peggy, 5 U.S. 103 (ordering restoration of ship to

French owner, as required by article 4 of the 1800

Convention); Ware, 3 U.S. 199 (ordering debtor to pay debt

wrongfully withheld from creditor in violation of article 4 of

the Definitive Treaty of Peace).

In sum, this Court’s decisions dunng this period

support a strong presumption that an individual who was

harmed by a past violation of his treaty-based primary nghts,

or is likely to be harmed by a future violation of those nghts.

is entitled to a judicial remedy, even if the treaty at issue does

not create a private nght of action or expressly empower the

individual to invoke the treaty before a domestic court.

B. This Court Regularly Awarded Judgment

for Defendants in Cases Where the Treaty

Did Not Expressly Empower Individuals to

Invoke the Treaty

Between 1789 and 1829, this Court decided six cases

in which an individual defendant secured a judgment to

protect a primary treaty right. In each of these six cases, the

Court applied the relevant treaty provision aS a rule of

decision, despite the fact that the treaty at issue did not

expressly empower the defendafit to invoke the treaty before

10

a domestic court. In each of the six cases. the rationale

supporting judgment for the defendant relied, at least in part,

on the Court’s assessment that a judgment for the plaintiff

would have infringed upon the defendant’s treaty-based

primary rights. See Carneal v. Banks, 23 U.S. 181 (1825)

(where plaintiff sued to rescind contract for land swap,

claiming that defendant did not have valid title to land, Court

dismissed bill for rescission because defendant derived title

from French citizen whose nght to hold land in U.S. terntory

was protected under article 1] of Treaty of Amity and

Commerce, Feb. 6, 1778, art. 11, U.S.-France, reprinted in 2

Treaties and Other International Acts of the United States of

America, 3. 11-12 (Hunter Miller ed.. 1931) [hereinafter

“1778 Treaty with France”): Orr v. Hodgson, 17 U.S. 453

(1819) (where plaintiff sued to rescind contract for purchase

of land, challenging validity of defendant’s title, Court

dismissed bill for rescission because defendant had valid title

protected by article 6 of Definitive Treaty of Peace and

article 9 of Jay Treaty); Jackson v. Clarke, 16 U.S. 1 (1818)

(where plaintiff sued for ejectment, Court dismissed suit

because article 9 of Jay Treaty protected nghts of British

citizens to hold and inhent land): Fairfax's Devisee v.

Hunter's Lessee, 11 U.S. 603 (1813) (where plaintiff sued for

ejectment, Court dismissed suit because defendant’s title to

land was secured by article 9 of Jay Treaty): Moodie v. The

Ship Phoebe Anne, 3 U.S. 319 (1796) (where British consul

filed libel to recover ship captured by French privateer, Court

awarded judgment to French privateer because article 19 of

1778 Treaty with France protected nght of French citizens to

enter U.S. ports and obtain items necessary for repairs):

Georgia v. Brailsford, 3 U.S. 1 (1794) (where State of

Georgia brought suit, asserting entitlement to pre-war debt

owed to British citizen, Court held that article 4 of Definitive

Treaty of Peace protected Bntish defendant's nght to recover

debt).

11

In none of these cases did the treaty at issue expressly

empower the defendant to invoke the treaty as a defense in a

judicial proceeding. The absence of any such treaty

provision, however, did not preclude individual enforcement

of the treaty. To the contrary, the Court applied the

presumption that an individual defendant who has been

harmed by a violation of his primary treaty rights, or is likely

to be harmed by a future violation of those rights, has the

capacity to invoke the treaty and is entitled to a judicial

remedy. Since Mr. Sanchez-Llamas is also a defendant in a

judicial proceeding, like the defendants in the cases cited

above, he has the capacity to invoke the VCCR as a defense,

and he is entitled to a judicial remedy. if he was harmed by a

violation of his treaty-based primary rights.

C. The Cases Where Treaty Claimants Lost

Are Consistent with the Presumption in

Favor of Judicial Remedies for Violations

of Individual Treaty Rights

Of the 34 treaty cases decided by this Court between

1789 and 1829, there were ten cases where the party

invoking the treaty lost on the merits. In none of those cases,

however, did the Court rule that the treaty was not judicially

enforceable. Rather, in each case, the party invoking the

treaty lost on the merits, either because the treaty did not

grant that party the primary nght he asserted, or because

there was no violation of that nght. See Foster v. Neilson, 27

U.S. 253 (1829) (where plaintiffs claimed title to land on the

basis of article 8 of Treaty of Amity, Settlement, and Limits,

Feb. 22, 1819, U.S.-Spain, reprinted in 3 Treaties and Other

International Acts of the United States of America, 3, 9

(Hunter Miller ed., 1933) [hereinafter “Florida Treaty”),

Court held that treaty did not grant plaintiffs title to disputed

property); Comegvs v, Vasse. 26 U.S. 193 (1828) (where

arbitral commission established pursuant to Florida Treaty

12

awarded money judgment to creditors of bankrupt person,

treaty did not grant bankrupt party right to recover judgment

from creditors); De la Croix v. Chamberlain, 25 U.S. 599

(1827) (Florida Treaty protected plaintiffs inchoate title to

land, but inchoate title was insufficient to permit plaintiff to

recover land in action for ejectment); Blight’s Lessee v.

Rochester, 20 U.S. 535 (1822) (plaintiffs, who claimed title

to land by descent from British citizen, lost on merits because

title of British citizen was not protected by Jay Treaty or by

Definitive Treaty of Peace); The Amiable Isabella, 19 U.S. 1

(1821) (Spanish claimant, who invoked article 17 of 1795

Treaty with Spain, lost on merits because treaty did not grant

him the immunity he claimed); The Nuestra Senora de la

Caridad, 17 U.S. 497 (1819) (Spanish shipowner, who

invoked 1795 Treaty with Spain, lost on merits because

treaty did not protect goods from capture); The Nereide, 13

U.S. 388 (1815) (American privateer, who invoked article 15

of 1795 Treaty with Spain, lost on merits because law of

nations protected cargo from capture and treaty did not alter

law of nations in that respect); Smith v. Maryland, 10 U.S.

286 (1810) (defendant, who invoked article 6 of Definitive

Treaty of Peace, lost on merits because treaty provision

protecting land from confiscation did not apply to subject

property); M’Ilvaine v. Coxe’s Lessee, 8 U.S. 209 (1808)

(where defendant asserted that Definitive Treaty of Peace

deprived plaintiff of property nghts, Court rejected argument

on merits and affirmed plaintiff's title to land); Glass v. The

Sloop Betsey, 3 U.S. 6 (1794) (where French privateer

contended that article 17 of 1778 Treaty with France barred

District Court’s exercise of jurisdiction in prize case, Court

ruled that treaty did not deprive Distnct Court of jurisdiction,

and remanded case for adjudication on merits).

In sum, none of these cases support a presumption

against individual enforcement of treaties. To the contrary,

the cases merely support the unremarkable proposition that

13

an individual whose primary rights are not protected by a

treaty cannot obtain a remedy on the basis of that treaty.

D. Other Cases From This Period Are

Consistent with the Presumption in Favor

of Judicial Remedies for Violations of

Individual Treaty Rights

In addition to the cases discussed above, this Court

decided six other cases between 1789 and 1829 in which an

individual litigant raised a claim or defense on the basis of a

treaty. In two of those cases, the Court did not rule on the

merits of the treaty claim. See Harden v. Fisher, 14 U.S. 300

(1816) (remanding case to circuit court for additional

factfinding); United States v. Lawrence, 3 U.S. 42 (1795)

(dismissing mandamus petition directed against a federal

judge because the judge acted within the scope of his

discretionary authority). In two other cases, the Court did not

apply the treaty as a rule of decision, but merely consulted

the treaty as an aid to construing some other provision of law,

which provided the rule of decision in the case. See

Henderson v. Poindexter’s Lessee, 25 U.S. 530 (1827)

(prevailing plaintiff, whose title to land did not depend on

treaty, invoked Definitive Treaty of Peace and 1795 Treaty

with Spain to establish that defendant’s land grant from

Spanish government was void because land was part of

United States at time of Spanish grant): Harcourt v. Gaillard,

25 U.S. 523 (1827) (prevailing defendant, whose title to land

did not depend on treaty, invoked Definitive Treaty of Peace

to establish that plaintiff's grant from Bntish governor was

void because land was part of United States at time of British

grant). In one case, each of the opposing parties invoked a

different treaty in support of its case. See Talbot v. Janson, 3

U.S. 133 (1795) (rejecting captor’s argument that treaty

between U.S. and France deprived District Court of

jurisdiction, and ruling in favor of Dutch shipowner on the

14

basis of a treaty between U.S. and Netherlands). These five

cases neither support nor refute the presumption in favor of

judicial remedies for violations of individual treaty nghts.

The only other treaty case during this period was

Owings v. Norwood’s Lessee, 9 U.S. 344 (1809), which

involved a dispute related to land in Maryland. The original

owner of the land mortgaged the property to Scarth, a British

citizen. In 1732, Waters obtained a judgment of

condemnation against the land for a debt due to him from

Scarth, but Waters never executed the judgment. /d. at 344.

Owings, a Maryland citizen, derived his claim to the land

from Waters. In 1780, Maryland confiscated all property in

the state belonging to Bntish subjects. /d. at 346. The

plaintiff had a patent from the State of Maryland, issued in

1800. /d. at 344. Plaintiff sued to eject Owings. In

response, Owings invoked article 5 of the Definitive Treaty

of Peace, which protected the rights of British citizens whose

property was confiscated during the Revolutionary War. The

Court’s central holding was that it lacked jurisdiction because

the case did not “‘arise under” a treaty. /d. at 347-48.

The case did not arise under a treaty because Owings,

who invoked the treaty, did not have any property nghts

protected by the treaty. In contrast, Scarth’s heirs, who were

Bnitish citizens, did have property nghts protected by the

treaty, because Scarth’s mortgage was confiscated during the

war. Thus, “if Scarth or his heirs had claimed, it would have

been a case arising under a treaty,” because Scarth’s

mortgage was protected from confiscation by article 5 of the

treaty. /d. at 348. In sum, Owings anticipates the modern

rule that individuals lack standing to enforce the rights of

unrelated third parties. Owings could not assert Scarth’s

treaty nghts because he was not Scarth’s heir or successor-in-

interest. But Justice Marshall left no doubt that Scarth’s

heirs could have invoked the Definitive Treaty of Peace,

15

despite the fact that the treaty itself did not expressly grant

them the power to invoke the treaty as a defense in an action

for ejectment.

E. Foster is Consistent with the Presumption

in Favor of Judicial Remedies for

Violations of Individual Treaty Rights

The Oregon Supreme Court cited Foster v. Neilson,

27 U.S. 253 (1829) in support of the proposition that there is

“a presumption against the creation of individual, judicially

enforceable rights” by means of treaties. State v. Sanchez-

Llamas, 108 P.3d 573 (Or. 2005). In fact, Foster is entirely

consistent with the approach reflected in the other treaty

cases decided by the Supreme Court during this period,

which applied a strong presumption in favor of judicial

remedies for violations of individual treaty nghts.

Foster involved a dispute over title to land in

Louisiana. The land at issue was part of a large area that was

the subject of a political dispute between the United States

and Spain between 1803, when the United States acquired

Louisiana from France, and 1819, when the U.S. purchased

Flonda from Spain. See Foster, 27 U.S. at 300-310. Dunng

that period, Spain asserted that the land east of the

Mississippi river and south of thirty-one degrees latitude was

a part of Florida, which belonged to Spain. The United

States, in contrast, asserted that the disputed territory was

part of Louisiana, which the U.S. had acquired from France.

The plaintiffs in Foster traced their title to an 1804 land grant

from the Spanish governor of Florida. See id. at 253-55. The

Court in Foster held that the plaintiffs could not establish a

valid title on the basis of the 1804 Spanish grant because the

United States had acquired the land when it purchased

Louisiana in 1803, and the Spanish governor had no

authonity to grant land in U.S. territory. /d. at 307-09.

16

That, however, was not the end of the matter. The

Court next considered whether the plaintiffs could establish a

valid title on the basis of article 8 of the Florida Treaty. See

id. at 310-15. Article 8 stipulated that land grants made

before 1818 by the Span’sh government in the “Territories

ceded by His Majesty to the United States, shall be ratified

and confirmed to the persons in possession of the lands.”

Florida Treaty, supra, art. 8. The Justices could not agree

among themselves whether the disputed terntory east of the

Mississippi River and south of 31 degrees latitude was

included within the terms of Article 8. See Foster, 27 U.S. at

313. Marshall, accordingly, devised a solution that enabled

the Court to sidestep this disagreement. The Court held that

even if Article 8 did apply to the land at issue, the treaty itself

did not secure the property nghts of individual recipients of

Spanish land grants because the specific words of Article 8 —

“shall be ratified and confirmed” — merely promised future

legislative action by the U.S. government to ratify and

confirm the prior Spanish land grants. See id. at 314. This

holding later became the basis of the modern doctrine of non-

self-executing treaties. Pursuant to this holding. the Court

awarded judgment to the defendants. The rationale, though,

was not that the treaty was not enforceable by private

individuals. Rather, the rationale was that the plaintiffs did

not have valid title to the land because the initial land grant

from the Spanish governor was void, and the U.S. promise of

future legislative action to ratify and confirm that grant was

never executed.

In sum, between 1789 and 1829 there was not a single

case in which this Court denied a remedy to an individual

whose treaty-based primary nghts had been violated. There

were, however, | 6 cases where an individual litigant obtained

a remedy for a treaty violation. despite the fact that the treaty

at issue did not create a private nght of action and did not

expressly empower individuals to invoke the treaty before a

17

domestic court. Thus, the assertion that treaties are not

enforceable by private parties unless the treaty itself creates a

private night of action -- which has been endorsed by several

state courts and lower federal courts in recent cases involving

the VCCR -- is squarely at odds with the Framers’ original

understanding of the judiciary’s role in treaty enforcement.

- II. MORE RECENT DECISIONS BY THIS COURT

ALSO SUPPORT A STRONG PRESUMPTION

IN FAVOR OF JUDICIAL REMEDIES FOR

VIOLATIONS OF INDIVIDUAL TREATY

RIGHTS

A. This Court Continues to Grant Individual

Remedies in Cases Where the Treaty at

Issue Does Not Create a Private Right of

Action

The presumption in favor of judicial remedies for

violations of individual treaty rights is not merely a relic of

the past. This Court continued to apply that presumption

throughout the nineteenth and twentieth centuries, and even

into the twenty-first century. Four cases from three different

centunes illustrate this point.

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

the appellee challenged his criminal conviction on the ground

that it violated Article X of the Webster-Ashburton Treaty,

Aug. 9, 1842, art. X, U.S.-Great Britain, reprinted in 4

Treaties and Other International Acts of the United States of

Amenica, 363, 369-70 (Hunter Miller ed.. 1934). The treaty

did not expressly empower Rauscher to invoke Article X as a

defense to criminal charges. Nevertheless, this Court ruled in

favor of Rauscher on the basis of his treaty defense, holding

that he had “‘a nght to be exempt from prosecution upon the

charge set forth in the indictment.” Rauscher. 119 U.S. at

~~

18

409. Rauscher is especially relevant to Sanchez-Llamas,

because it demonstrates that a criminal defendant who has

been harmed by a violation of his treaty mghts has the power

to invoke that treaty as a defense to criminal prosecution.

even if the treaty is silent with respect to domestic judicial

remedies.

In Chew Heong v. United States, 112 U.S. 536

(1884), a Chinese laborer who was detained on a ship near

San Francisco filed a habeas corpus petition in federal court

to obtain release from custody. /d. at 538. Chew Heong

alleged that his detention violated Article II of an 1880 treaty

between the United States and China, which stated: ““Chinese

laborers who are now in the United States shall be allowed to

go and come of their own free will.” Treaty Concerning

Immigration, Nov. 17, 1880, U.S.-China, 22 Stat. 826. The

treaty itself did not grant Chew Heong a night of access to

U.S. court, nor did it expressly grant him the power to invoke

the treaty before a U.S. court. Even so, the Supreme Court

granted Chew Heong’s habeas petition, holding that he was

“entitled to enter and remain in the United States.” Chew

Heong. 112 U.S. at 560. In short, the treaty was judicially

enforceable because the treaty created a prmary individual

right and the federal habeas statute provided a private right of

action that enabled him to enforce that primary nght. Chew

Heong is especially relevant to Bustillo. because it

demonstrates that a petitioner can bring a habeas corpus

action to enforce his treaty mghts. even if the treaty at issue

does not create a private nght of action.

The pattern of treaty enforcement descnbed above,

which combines treaty-based primary nghts with domestic

rights of action, continued into the twentieth century. In

Asakura v. Seattle. 265 U.S. 332 (1924), the plaintiff was a

Japanese national who operated a pawnbroker business in

Seattle. Jd. at 339. Seattle passed an ordinance that

19

prohibited non-U.S.-citizens from operating a pawnbroker

business in the city. /d. at 339-40. Plaintiff sued to enjoin

enforcement of the ordinance on the grounds that it violated a

bilateral treaty with Japan. Treaty of Commerce and

Navigation, Feb. 21, 1911, U.S.-Japan, 37 Stat. 1504. The

treaty granted Japanese citizens a primary nght “to carry on

trade” in the United States “upon the same terms as native

citizens or subjects.” /d., Art. 1. However, the treaty did not

expressly grant Japanese citizens a nght to sue for injunctive

relief. | Nevertheless, the Supreme Court affirmed an

injunction in favor of the plaintiff, relying on the traditional

equitable action for injunctive relief as the basis of a

domestic nght of action to enforce the plaintiff's treaty-based

primary nghts.

Just three terms ago, in Am. Ins. Ass'n v. Garamendi,

539 U.S. 396 (2003), this Court upheld a judicial remedy for

a private plaintiff who sued to enforce international

agreements that did not themselves create a private night of

action. In Garamendi, a trade association sued in federal

court to enjoin enforcement of a California statute that

required insurance companies to disclose information about

“insurance policies issued to persons in Europe, which were

in effect between 1920 and 1945.” Jd. at 409. The Court

held that certain bilateral agreements between the United

States and European governments preempted the California

law.4 Jd. at 420-27. The bilateral] agreements manifest the

4 The Court's preemption analysis relies primarily on three

bilateral executive agreements: Agreement Conceming the

Foundation “Remembrance, Responsibility and the Future,” July

17, 2000, U.S.-F.R.G, 39 I.L.M. 1298 [hereinafter, “U.S.-Germany

Agreement™]; Agreement Concerning the Austrian Fund

“Reconciliation, Peace and Cooperation,” October 24, 2000, U-S.-

Aus., 40 I.L.M. 523: Agreement Concerning Payments for Certain

Losses Suffered During World War IT, January 18, 2001, U.S.-Fr.,

Temp. State Dep’t No. 01-36.

20

drafters’ expectations that the federal government might

invoke the agreements in support of motions to dismiss

private lawsuits. See U.S.-Germany Agreement, art. 2, para.

1 (“The United States shall, in all cases in which the United

States is notified that a claim described in article 1({1) has

been asserted in a court in the United States, inform its courts

... that dismissal of such cases would be in its foreign policy

interest.”). In Garamendi, though, the insurance companies

invoked the bilateral agreements offensively in support of a

suit against the state Insurance Commissioner to enjoin

enforcement of a California statute. See Garamendi, 539

U.S. at 412. There is no language in any of the agreements

indicating that the drafters intended to authorize this type of

private lawsuit. Even so, the Court granted relief to plaintiffs

on the grounds that the agreements preempted California law

under the Supremacy Clause. /d. at 427-29. Thus. the Court

in Garamendi tacitly relied on the Supremacy Clause as a

basis for a private right of action to enforce international

agreements that did not provide plaintiffs a right to sue in

U.S. courts.9

In sum, the claim that treaties are not judicially

enforceable by private parties unless the treaty itself creates a

private nght of action is refuted by two centuries of

jurisprudence in which this Court has consistently approved

remedies for individuals whose treaty nghts were violated,

* There are numerous cases decided in the past two decades in

which the Supreme Court has tacitly relied on the Supremacy

Clause as a basis for a private right of action to enjoin enforcement

of state laws that are preempted by federal statutes. See David

Sloss. Constitutional Remedies for Statutory Violations. 89 low A

L. REV. 355, 390-401 (2004) (analyzing cases). Garamendi differs

from those cases in that the preemptive federal laws are

international agreements. not federal statutes. Even so. the private

neht of action analysis ts identical.

21

despite the fact that the treaty at issue did not create a private

night of action. The approach that this Court has actually

applied, which in practice amounts to a strong presumption

in favor of judicial remedies for individuals whose treaty

rights are violated, promotes U.S. compliance with its treaty

obligations, and thereby helps avoid the international friction

that would otherwise result from a breach of U.S. treaty

obligations. In this way, the presumption in favor of judicial

remedies helps realize the objective that the Framers sought

to promote by including treaties in the Supremacy Clause —

that is, to avoid situations where treaty violations lead to

unwanted international conflicts. See Carlos M. Vazquez.

Treaty-Based Rights and Remedies of Individuals, 92

COLUM. L. REV. 1082, 1110 (1992) (“The Convention and

ratification debates, and contemporaneous statements, show

clearly that the Framers were concerned about treaty

violations because they could provoke wars, deter other

nations from entering into beneficial agreements with us, and

adversely affect the nation’s reputation.”)

B. Cases Cited by the Oregon Supreme Court

Are Consistent with the Presumption in

Favor of Judicial Remedies

The Oregon Supreme Court relied on three U.S.

Supreme Court decisions in support of its assertion that there

is “a presumption against the creation of individual judicially

enforceable rights” by means of treaties. See State v.

Sanchez-Llamas, 108 P.3d 573, 575-77 (Or. 2005). The

three cases are: Argentine Republic vy. Amerada Hess

Shipping Corp., 488 U.S. 428 (1989): Edve v. Robertson

(Head Money Cases), 112 U.S. 580 (1884): and Foster v.

Neilson, 27 U.S. 253 (1829). For the reasons noted above.

Foster is consistent with a presumption in favor of judicial

remedies for violations of individual treaty nghts. See supra

Part I.E.

. 22

In Amerada Hess, the plaintiff was not even raising a

claim under a treaty. The planuff, a shipping company,

alleged that Argentina had violated its nght to engage in

neutral shipping operations, which is protected under

customary international law. Amerada Hess, 488 U.S. at

432. The Court rejected the claim on sovereign immunity

grounds. See id. at 439-41. The plaintiff in Amerada Hess

did invoke two treaties in support of its argument that the

defendant, Argentina, had waived the sovereign immunity to

which it might otherwise be entitled under the Foreign

Sovereign Immunities Act. See Amerada Hess, 488 U.S. at

441-43. The Court, however. held that the subject treaties

did not contain a waiver of sovereign immunity. /d. The

Court mentioned in passing that the treaties “do not create

private nghts of action for foreign corporations to recover

compensation from foreign states in United States courts.”

Id. at 442. Given that the plaintiff did not base its nght of

action on a treaty, this statement is best read as an affirmation

that the treaties cited did not waive the defendant’s sovereign

immunity because they did not specify that private parties

could bring suit in U.S. courts to recover damages from

foreign states.

Amerada Hess at most suggests that a defendant can

overcome the presumption in favor of judicial remedies for

violations of individual treaty nghts by successfully raising a

sovereign immunity defense. Neither respondent in the

present case. though, is entitled to sovereign immunity. The

State of Oregon cannot claim immunity because it is in the

position of prosecutor in the Sanchez-Llamas case. And the

State of Virginia cannot claim immunity because sovereign

immunity is not a valid defense to a habeas corpus petition.

See Larry W. Yackle, Federal Courts 313 (1999). Thus.

Amerada Hess provides no support for respondents in this

case.

23

Head Money Cases, 112 U.S. 580 (1884), also cited

by the Oregon Supreme Court, actually supports a

presumption in favor of judicial remedies for violations of

individual treaty nghts. In Head Money Cases, this Court

drew a critical distinction between treaties that are “pnmarily

a compact between independent nations,” and treaties that

“contain provisions which confer certain rights upon the

citizens or subjects of one of the nations residing in the

territorial limits of the other.” /d. at 598. In short, there is an

important distinction between treaties that create primary

rights for individuals and treaties that do not create such

rights. If a treaty does not create pnmary nghts for

individuals, “its infraction becomes the subject of

international negotiations and reclamations .... It is obvious

that with all this the judicial courts have nothing to do and

can give no redress.” /d. at 598. If, however, a treaty

prescribes “a rule by which the nghts of the private citizen or

subject may be determined . . . [the] court resorts to the treaty

for a rule of decision for the case before it as it would to a

statute.” /d., at 598-99. In light of the cases discussed

above, it is evident that the Court’s reference to rules “by

which .the mghts of the private citizen . . . may be

determined” is a reference to primary rights, not private

rights of action. Thus, Head Money Cases stands for the

proposition that courts should enforce treaties on behalf of

private individuals whenever the treaty prescribes a primary

rule governing the rights of private individuals — that is,

whenever the treaty protects pnmary individual nghts.

24

ILINDIVIDUALS WHO ARE HARMED BY

VIOLATIONS OF PRIMARY RIGHTS

PROTECTED BY THE VCCR ARE ENTITLED

TO JUDICIAL REMEDIES

For the reasons explained above, if a particular treaty

provision is the Law of the Land under the Supremacy

Clause, and it protects primary individual nghts, then

individuals who are harmed by a violation of their treaty-

based primary nghts are entitled to domestic judicial

remedies, unless Congress has enacted legislation to preclude

such remedies. There is no dispute that the VCCR is the Law

of the Land. Aithough congressional amendments to the

federal habeas statute may bar federal habeas review of some

Vienna Convention claims, Congress has not enacted

legislation to preclude state court remedies for violations of

the VCCR. Therefore. individuals harmed by violations of

their nghts under Article 36 are entitled to judicial remedies

in state courts.

A. Article 36 of the VCCR Protects Primary

Individual Rights

For the purpose of this bref, an individual has a

“pnmarv nght™ under a treaty if a state party to the treaty has

a legal duty under the treaty to behave in a particular way. or

to refrain from behaving in a particular way, with respect to

that individual. The question whether a state party has such a

duty is a question of treatv interpretation. Courts look to the

plain meaning of the text to determine the correct

interpretation of a treaty. See Geofrov v. Riggs, 133 US.

258. 271 (1890). It is clear from the plain meaning of the

treaty text that Article 36(1) of the VCCR grants pnmary

rights to individuals. A foreign national arrested in the

United States has a pnmary nght “to communicate with and

[have] access to consular officers of the sending State.”

25

VCCR, art. 36, para. 1(a). The arrested foreign national also

has a primary nght to request that U.S. authorities “inform

the consular post of the sending State” that he has been

arrested, and U.S. authorities have a legal duty to honor such

requests. VCCR, art. 36, para. 1(b). Moreover, the foreign

national has a primary right to be informed “without delay”

of his nght of access to consular officers. /d. It is difficult to

imagine how anyone could conclude. on the basis of this text,

that Article 36 does not grant primary rights to individuals.

The text of Article 36 is sufficiently clear that it is not

necessary to resort to any supplementary means of treaty

interpretation.

There is no doubt that petitioners’ individual nghts

under Article 36 were violated. In Sanchez-Liamas, the

Oregon Supreme Court admitted that “[t]he police did not

inform defendant at that time, or at any time thereafter, that

he had any nmght under Article 36 of the VCCR to-

communicate with the Mexican consulate.” Sanchez-Llamas,

108 P.3d at 574. Since Sanchez-Llamas is a defendant in a

criminal proceeding, he does not need to establish a right of

access to court. Moreover, in accordance with the

controlling Supreme Court precedent discussed above, he has

the power to invoke the VCCR in a domestic court if he was

harmed by the violation of his treaty mghts. Therefore. the

only significant question in his case is whether he was

harmed, and if so, what is the appropriate remedy.

In Bustillo, the United States has conceded that

petitioner's Vienna Convention nghts were violated. See

Bustillo, Petition for a Writ of Certiorari, at 3. Virginia's

habeas corpus statute granted Mr. Bustillo a nght of access to

State court to pursue his habeas petition. See Va. Code §

8.01-654. Moreover, in accordance with controlling

Supreme Court precedent, he had the power to invoke the

VCCR in a Virginia court if he was harmed by the violation

26

of his treaty rights. Nevertheless, the State of Virginia claims

that state procedural default rules prevent Mr. Bustillo from

raising a VCCR claim in his state habeas petition. The next

section of this brief addresses that argument,

B. The State of Virginia May Not Invoke

Procedural Default Rules if Doing So

Would Contravene U.S. Treaty Obligations

In Avena and Other Mexican Nationals (Mexico v.

United States), 2004 ICJ 128 [hereinafter, Avena], the

International Court of Justice held that the United States has

an international obligation under Article 36(2) of the VCCR

to provide review and reconsideration, by means of a judicial

proceeding, of the convictions and sentences of individuals

whose rights under Article 36(1) of the VCCR have been

violated. See id. at #§ 138-43. This bref assumes that the

ICJ°s decision in Avena constitutes a correct interpretation of

Article 36(2). Given this interpretation, the question arises as

to which actor or actors in the domestic legal system have the

authority to choose to violate U.S. obligations under Article

36(2). In other words. under the U.S. constitutional system,

who has the constitutional authority to decide not to provide

the judicial review required by Article 36(2)?

There is no doubt that Congress has the constitutional

autkority to enact legislation to preclude the type of judicial

review required by Article 36(2). Such legislation would be

a violation of the United States” international obligations. but

it would supersede the treaty for purposes of domestic law.

See Restatement (Third) of the Foreign Relations Law of the

United States § 115(1)(a). State courts. however. unlike

Congress, do not have the constitutional authority to decide

to violate U.S. treaty obligations. Moreover, if a state court

with jurisdiction over a relevant case denies “review and

reconsideration’ to an individual who has been convicted and

27

sentenced to severe penalties after having been deprived of

his rights under Article 36(1), the court itself commits a

violation of Article 36(2). See Avena, 49 138-41. Since

courts lack the constitutional authority to choose to violate

U.S. treaty obligations, every judicial decision refusing to

provide review and reconsideration is a judicial act in excess

of that court’s constitutional authority, unless that treaty

violation has been authorized by Congress.

The present case is readily distinguishable from cases

where state procedural default rules bar a state habeas

remedy for an individual whose federal constitutional rights

were violated. The U.S. Constitution does not contain any

provision that prohibits state governments from applying

procedural default rules to bar remedies: for individuals

whose federal constitutional rights were violated. (If the

Constitution did contain such a provision. then states could

not apply procedural default rules to bar federal

constitutional claims.) Article 36(2) of the VCCR. however.

does prohibit state governments from applying procedural

default rules to bar remedies for individuals whose primary

mghts under Article 36(1) were violated, at least in cases

where those individuals were “convicted and sentenced to

severe penalties.°6 Since the VCCR is Law of the Land

under the Supremacy Clause. it preempts state procedural

rules insofar as application of those rules would contravene

U.S. treaty obligations.

The present case 1s also readily distinguishable from

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

© In Breard v. Greene, 523 U.S. 371 (1998), this Court

expressed the view that the VCCR did not preclude application of

domestic law procedural default rules. This interpretation of the

VCCR. rendered without the benefit of briefing on the merits. has

since been rejected by the ICJ. See Avena. | 38-41.

28

Court, in denying discretionary relief, expressed the view that

petitioner's federal habeas petition alleging violations of the

VCCR was barred, inter alia, by the Antiterrorism and

Effective Death Penalty Act, a federal statute enacted long

after the U.S. ratified the VCCR.’ See id. at 376. Under the

last-in-time rule, a_ later-in-trme federal statute takes

precedence over an earlier-in-time treaty, insofar as there is

an unavoidable conflict between the two laws. See

Restatement (Third) of the Foreign Relations Law of the

United States § 115(1)(a). Therefore, if a treaty requires

“review and reconsideration,” but a later-in-time federal

statute precludes federal habeas review, the statute takes

precedence over the treaty as a matter of domestic law,

insofar as petitioner is seeking federal habeas review. The

present case, however, involves the application of a state

procedural default rule. If there is an unavoidable conflict

between a treaty and a state statute or rule. the treaty always

takes precedence over state law because the Supremacy

Clause says so. U.S. Const. art. VI, cl. 2. Thus. in contrast

to Congress. state legislatures do not have the constitutional

power to authorize application of procedural default rules in

cases where application of such rules would contravene U.S.

treaty obligations.

This construction of the Supremacy Clause promotes

the central purpose underlying the Framers’ decision to

include treaties in the Supremacy Clause. Under the Articles

7

This Court also said in Breard that Paraguay’s claim against

the Governor of Virginia was barred by the Eleventh Amendment,

id. at 377-78, and that Paraguay did not have a private right of

action to bring its claim in U.S. courts. /d. at 377-78. It is

noteworthy. though, that the Court did not say that the Eleventh

Amendment barred Breard’s individual] claim, or that Breard

himself lacked a pnvate mght of action. This reinforces the point

that neither of these objections bars Mr. Bustillo’s claim.

29

of Confederation, states were routinely violating U.S. treaty

obligations, and the federal government was powerless to

halt those violations. See Vazquez, Treatv-Based Rights, 92

COoLuM. L. REV. at 1101-04. The Framers’ solution to this

problem, embodied in the Supremacy Clause, was to give

treaties the status of federal law, and to make treaties directly

binding on judges in state courts. See id. at 1104-10. See

also Martin S. Flaherty, History Right?: Historical

Scholarship, Original Understanding, and Treaties as

“Supreme Law of the Land,” 99 COLUM. L. REv. 2095,

2120-26 (1999). In recent years, state governments have

routinely violated U.S. obligations under Article 36(1) of the

VCCR, just as state governments violated U.S. treaty

obligations before adoption of the Constitution. This court

can solve that problem, and halt ongoing violations of Article

36(1), by ruling that state courts may not apply procedural

default rules in cases where application of such rules would

deprive individual foreigners of the judicial review and

reconsideration required by Article 36(2). If this Court fails

to issue such a ruling, state officers will continue to violate

Article 36(1) of the VCCR, thereby perpetuating the problem

that the Supremacy Clause was intended to rectify.

Finally, it bears emphasis that the United States can

fulfill its treaty obligations under the VCCR by ensuring the

availability of habeas relief in state courts, because the

VCCR does not require a federal habeas remedy for treaty

violations if a state remedy is available. Therefore. this

Court can avoid any conflict between the VCCR and federal

habeas law by ruling that state procedural default rules must

yield to the treaty in cases where application of such state

rules would contravene Article 36(2).

30

CONCLUSION

For the reasons noted above, this Court should hold

that every individual who has been harmed by a violation of

his primary nghts under Article 36(1) of the VCCR is

entitled to a judicial remedy for that violation, except insofar

as congressional amendments to the federal habeas statute

enacted after ratification of the VCCR limit the availability

of federal habeas relief. Additionally, Article 36(2) of the

VCCR requires state courts in Virginia to provide review and

reconsideration of Mr. Bustillo’s case, and state courts may

not apply procedural default rules to bar the judicial review

required by the treaty.

Respectfully submitted.

David Sloss, . . John F. Stanton”

Associate Professor of Law, “Counsel of Record

Saint Louis University Helen K. Michael

School of Law Howrey. LLP

3700 Lindell Blvd. 1299 Pennsylvania Avenue. N.W.

St. Louis, MO 63108 Washington, D.C. 20004

(202) 783-0800

Attorneys for Amici Curiae

DECEMBER 22. 2005

APPENDIX A

List of Amici Curiae Law Professors

John H. Barton. George E. Osborne Professor Emeritus,

Stanford Law School”

David J. Bederman. Professor of Law. Emory University

School of Law

Frederic M. Bloom, Assistant Professor of Law. Saint Louis

University School of Law

Erwin Chemerinsky, Alston & Bird Professor of Law and

Political Science, Duke University

Sarah Cleveland, Marrs McLean Professor in Law.

University of Texas School of Law, Samuel Rubin Visiting

Professor of Law, Columbia Law School

Constance De la Vega. Professor of Law and Academic

Director of International Programs. University of San

Francisco School of Law

William S. Dodge, Professor of Law. University of

California, Hastings College of the Law

Martin S. Flaherty, Professor of Law, Co-Director of Joseph

R. Crowley Program in Intemational Human Rights,

Fordham University School of Law

Gregory H. Fox, Associate Professor of Law. Wayne State

University Law School

Institutional affiliations are provided solely for purposes of

identification. and do not imply institutional endorsement of the

substantive views presented in this bref.