Amicus Curiae Brief — Sanchez-Llamas v. Oregon
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Nos. 04-10566 and 05-51
MOISES SANCHEZ-LLAMAS,
Petitioner,
v.
STATE OF OREGON,
Respondent.
On Writ of Certiorari to the
Supreme Court of Oregon
MARIO A. BUSTILLO,
Petitioner,
Vv.
GENE M. JOHNSON, Director,
- Virginia Department of Corrections,
Respondent.
On Writ of Certiorari to the
Supreme Court of Virginia
BRIEF OF PROFESSORS OF INTERNATIONAL
LAW, FEDERAL JURISDICTION AND THE
FOREIGN RELATIONS LAW OF THE
UNITED STATES AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
SAMUEL ESTREICHER PAUL B. STEPHAN
40) Washington Square So. Counsel of Record
New York, NY 10012 580 Massie Rd.
(212) 998-6226 Charlottesville, VA 22903
EUGENE THEROUX (434) 924-7098
BAKER & MCKENZIE LLP Counsel for Amici Curiae
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 452-7012
January 31, 2006
a Le Sa PE a a eS a Ta a EE
WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001
—
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......cccccccccoscecoscccessscssssossooes
INTEREST OF THE AMICI CURITAE .........0.cccse0eeeeees
SUMMARY OF ARGUMENT.............cccccsscsessesenseseneees
FID siicctesccensnnesennticininstitainnngeseninigniotanannenniins
I.
II.
THE VIENNA CONVENTION DOES NOT
CONFER ON INDIVIDUALS A _ JUDI-
CIALLY ENFORCEABLE RIGHT TO CON-
SULAR NOTIFICATION AND ACCESS. .......
A. The Question of Whether a Treaty Creates
a Judicially Enforceable Right Is Analy-
tically Distinct From the Issue of Whether
a Treaty is Self-Executing .............:csccseseeee
B. The Executive Branch’s Interpretation of
the Vienna Convention is Entitled to Great
ES TARE Is TERESI MD Rat ON OES
C. The Practice of Other States Confirms That
No Judicially Enforceable Right Inheres in
the Vienna Convention ................ccc.seseceeeeeee
D. The Court Should Avoid an Interpretation
of the Vienna Convention That Will
Discourage the United States from Enter-
ing into New Treaty Commitments .............
NEITHER COMITY NOR THE NEED FOR
UNIFORMITY IN TREATY INTERPRE-
TATION JUSTIFIES A CONCLUSION
THAT THE VIENNA CONVENTION
FORBIDS A STATE FROM APPLYING A
NEUTRAL PROCEDURAL RULE TO
FORECLOSE UNTIMELY ASSERTIONS
OF A CLAIM OTHERWISE ASSERTABLE
SFPUEPEES BEDALE BURMIARD © ccccccscccccccsssecssescosccsenss
(i)
1]
13
TABLE OF CONTENTS—Continued
Page
A. The Doctrine of Comity Traditionally Has
Been Applied to the Decisions of Foreign
States, Not Those of an _ International
Organization Created by Treaty .................. 16
B. Extending the Doctrine of Comity to an
Organization Created by Treaty Would
Discourage the United States from Agree-
ing to Establish Such Organizations............ 20
C. Other Countries Do Not Ordinarily Inter-
pret Their Treaty Commitments as Dele-
gating to International Organizations the
Authority to Render Judgments in Partic-
ular Disputes To Be Enforced by Their
Domestic Courts in the Absence of an
Express Provision Stipulating Such an
ITI siinescnsbdpsednnnneniiisspiedemnanientaiebindatiiniabinnion 23
CIC IIIIIE YS crcccercccessnoseaninssnsonisninsmaninaceetssediasnnienia 27
APPENDIX—LIST OF AMICI .........c:ccccssseseeesesseeeeeeeees la
TABLE OF AUTHORITIES
CASES Page
Alexander v. Sandoval, 532 U.S. 275 (2001)........ 4
Alling v. United States, 114 U.S. 562 (1885) ........ 6
American Ins. Ass’n v. Garamendi, 539 U.S.
Ices tcp lite aliniadaitnanenbbebamitanenion 8
Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989) oo... eeeceeteeeteeeeneees 7
Breard v. Green, 523 U.S. 371 (1998) .........cccceeeee 19
California v. Sierra Club, 451 U.S. 287 (1981)... 4
Cannon v. University of Chicago, 441 U.S. 671
SEPP ecisiisnicaminpiideosehbinbilinsaieiipdenitiniatnopinantaciensianimveie 4
Chevron USA Inc. v. NRDC, Inc., 467 U.S. 837
SFO icieteivtbveciiiiienieatnininttshantnssninenescaeapevstitiintionnigainniee 18
Correctional Services Corp. v. Malesko, 534
ree re CUE auiietenicuniisainctniniseoeninubinneninentisantienin
Cort v. Ash, 422 U.S. 66 (1975) ........ccccccscorecceseeees
Dames & Moore v. Regan, 453 U.S. 654 (1981)...
Eastern Airlines v. Floyd, 499 U.S. 530 (1999) ....
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ...........
Frelinghuysen v. Key, 110 U. S. 63 (1884)...........
Gonzaga University v. Doe, 536 U.S. 273 (2002)...
Great Western Insurance Co. v. United States,
RANT OUS
PE a, Se sceiilecsinriannteretninniesnneniniinin 6
Hilton v. Guyot, 159 U.S. 113, 164 (1895)............ 17
Igartua-De La Rosa v. United States, 415 F.3rd
es SUID -annisinestiindiaiensonoienipmsctinennniadiancin 16
Jackson v. Birmingham Bd. of Ed., 544 U.S. ____
SITE biacicaieeilbahiliitiauteeclbiheetilasabichiastdanantidumnepeinete 4
Jogi v. Voges, 425 F.3rd 367 (7th Cir. 2005) ........ 15
La Abra Silver Mining Co. v. United States, 175
Se a ID dccsiensieceiniavitapasesenemiiensinnmiiniincnees 6
Merrell Dow Pharmaceuticals Inc. v. Thompson,
Ge as TY TINT niericecsaniopnnpnsnendinsetaneniovsniniansion 4
iv
TABLE OF AUTHORITIES—Continued
Page
Middlesex County Sewerage Auth. v. Nat'l Sea
Clammers Ass'n, 453 U.S. 1 (1981) ...........0.000 4
Olympic Airways v. Husain, 540 U.S. 644 (2004) .. 8
Pennhurst State Sch. & Hosp. v. Halderman, 451 -
CBB. BCE GEES) icewecersccnconsnsseniccininisetestiniedasusiiangniiaaiae 4
Sumitomo Shoji America, Inc. v. Avagliano, 457
CFB. FR CURRED eccncnnsesccscrnnsscesmnensmneiintadsinieheieatii 1]
Thompson v. Thompson, 484 U.S. 174 (1988) ...... 4
Touche Ross & Co. v. Redington, 442 U.S. 560
(FEF F a Pcxwsseccccsesssccnsesnesnuicusessneninnpenehianenetisied iain 4
United States v. Blaine, 139 U.S. 306 (1891)....... 6
United States v. Li, 206 F.3d 56 (ist Cir. 2000)..... 9, 11
United States v. Louisiana, 470 U.S. 93 (1985).... 19
United States v. Maine, 475 U.S. 89 (1986).......... 19
United States v. Pink, 315 U.S. 203 (1942)........... 8
United States v. Weld, 127 U.S. 51 (1888)............ 6
Universities Research Ass'n v. Coutu, 450 U.S.
754 (1981)........... Sincniticeitiaiteieiicsgiieanal ciaiesddaiiaibi 4
Zschernig v. Miller, 389 U.S. 429 (1968)..........0008 8
CONSTITUTION, STATUTES, TREATIES
TO WHICH THE UNITED STATES IS A
PARTY, AND EXECUTIVE AGREEMENTS
D UD. BG FINE ceccsccsccssescovessesnstncssensesscnsnedsensiine 6
22 U.S.C §§ 1650, 16508...........serscerrererrerersereeres 7
BB US. § BOBS nrrcvcccececorcesovesoneveonosonsnsosnssossesanstes 7
42 U.S.C. § BGGS .cocrecocrecesssensnevscsssvsnpevensesconmemnessees 4
Convention for the Unification of Certain Rules
Relating to International Transportation by ~
Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No.
1, Bhs he & | Perea. 7
! Vv
TABLE OF AUTHORITIES—Continued
Page
Convention on the Settlement of Investment
Disputes Between States and Nationals of
Other States, Mar. 18, 1965, 7 U.S.T. 1270,
T.LA.S. No. 6090, 575 .N.T.S. 159 0... ceeseeees 6
Dominican Republic-Central America-United
States Eree Trade Agreement Implementation
ic cideintecaicidsibtanneselbceonireeceree 21
North American Free Trade Agreement Imple-
mentation Act OF 1993 .......cccccosccroressorersssseecsseees 21
Optional Protocol to the Vienna Convention on
Consular Relations Concerning the Compul-
sory Settlement of Disputes, April 24, 1963,
21 U.S.T. 325, 596 U.N.T.S. 487 .0.........cccceeeees 15
United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards,
June 10, 1958, 21 U.S.T. 2517, T.LA.S. No.
Uruguay Round Agreements Act of 1994............. 21
Vienna Convention on Consular Relations, April
24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 ........ passim
LEGISLATIVE AND ADMINISTRATIVE
MATERIALS
Vienna Convention on Consular Relations, Sen.
BR, See, FEF CIPO P cccceccccccessccesesecssssosesccsosees 8, 20
OTHER TREATIES
European Convention for the Protection of
Human Rights and Fundamental Freedoms,
~ Nov. 4, 1950, 213 U.N.T.S. 221 ........ccccccssseeseees 24
Consolidated Version of the Treaty Establishing
the European Community, Dec. 24, 2002, O.J.
SE Se ae 25
vi
TABLE OF AUTHORITIES—Continued
MISCELLANEOUS Page
A v. Secretary of State, [2005] 2 A.C. 68 (H.L.
Fe Te cinencandancnsnsnjanatasapinmacanbiiisitinsiabedpentedsiiaiinanivin 25
A. Racke GmbH & Co. v. Hauptzollamt Mainz
(Case C-162/96), 1998 E.C.R.1-3655S ................ 26
Anklagemyndigheden v. Poulsen (Case C-
286/90), 1992 E.C.R. 1-GO19 ...........ccccccsssscenecers 26
Curtis A. Bradley, Foreign Affairs and Domestic
Reform, 87 VA. L. REV. 1475 (2001)............00.. 13
Curtis A. Bradley & Jack L. Goldsmith, Treaties,
Human Rights, and Conditional Consent, 149
8 eee 14
Brief for the United States as Amicus Curiae in
Nos. 97-1390 and 97-8214, Republic of
Paraguay v. Gilmore & Breard v. Greene ........ 10
Brief for the United States as Amicus Curiae in
No. 04-5928, Medellin v. Dretke .......ccccccccceceeee- 9,10
Brunner v. The European Union Treaty, [1994]
| C.M.L.R. 57 (German Federal Constitutional
ID ascisanctiechnssunhiirtienmpiebaniiiintipanningemannntiiiees 25
Bundesgerichtshof [BGH][Federal Court of Jus-
tice] Nov. 7, 2001, 5 BGHSt 116/0, published
in NStZ 2002, 168 (F.R.G.) .........::cccccssecssseeees 12
Department of State Answers to the Questions
Posed by the First Circuit in United States v.
Nai Fook Li (Oct. 15, 1999) .0...........ccccccccsessesees 9
Louis Henkin, U.S. Ratification of Human Rights
Treaties: The Ghost of Senator Bricker 89 AM.
Fp UTE, Bee FOS CIP OD cccncsscveciscestonimenencinmainnn 14
Rosalyn Higgins, The ICJ, the ECJ, and the
Integrity of International Law, 53 INTL &
SC ae 6 Ge rcrdnscinineaciinnintonesieentesenne 26
Human Rights Act 1998, ch. 42 (Eng.) ........0000+ 24
Vil
TABLE OF AUTHORITIES—Continued
LaGrand (Germany v. United States), 2001 LC.J.
He cenapihenntccnineinipninasiniasiinasiaiiapiantepsemminttinioinien
Eric A. Posner & Miguel F.P. de Figueiredo, /s
the International Court of Justice Biased? 34
Te
Regina v. Partak, 160 C.C.C. (3d) 553 (Ontario
BN Se Sas See oeiscsieniteelancsinncesccsipnpiniiteeenmine
Regina v. Secretary of State for Transport ex
parte Factortame Ltd., {1991} 1 All E.R. 70
[iia vicesonsniceistcneesincinciniiaabiincinntaptanebnaniiihdaciaensagias
Constanze Schulte, COMPLIANCE WITH DECI-
SIONS OF THE INTERNATIONAL COURT OF
ETE Ga O rcnettctenianccninineemtensnennniinnn
THE EXECUTION OF STRASBOURG AND GERMAN
HUMAN RIGHTS DECISIONS IN THE NATIONAL
LEGAL ORDER (Tom Barkhuysen et al. eds.
Mark Weisburd, J/nternational Courts and
American Courts, 21 Micu. J. INT’L L. 877
Alain Winants, The Yerodia Ruling of the Inter-
national Court of Justice and the 1993/1999
Belgian Law on Universal Jurisdiction, 16
LEIDEN J. INT’L L. 491 (2003) ...........cessccesreeees
Jan Wouters, The Judgement of the International
Court of Justice in the Arrest Warrant Case:
Some Critical Remarks, 16 LEIDEN J. INT’L L.
ee i hitececinnenintnsninsnatatiianiusaniinenmmetdinaiie
Written Observations of the United States of
America, Request for Advisory Opinion OC-
SA UE Wij: Ceee ei ncaindiatintenicnieedicieniinisniastanaititngiaindunsds
Page
12
19
24
25
10
24
24
24
10
INTEREST OF THE AMICI CURIAE
Amici are professors and scholars of law with expertise in
international law, federal jurisdiction, and the foreign
relations law of the United States. This case raises important
questions concerning the interpretation of treaties to which
the United States is a party and the authority of an inter-
national tribunal to effect direct changes in a core area of U.S.
domestic law, namely whether individuals can assert treaty
violations in the course of a criminal prosecution and secure
suppression of evidence and dismissal of such proceedings.
Acceptance of the arguments put forward by petitioners
would undermine the authority of the Executive Branch in
interpreting the international obligations of the United States,
disregard the authority of Congress to determine the condi-
tions under which federal courts can enforce international
law, and bring about an unprecedented and profound change
in the relationship between international organizations and
domestic lawmaking in the United States. —
SUMMARY OF ARGUMENT
The Vienna Convention on Consular Relations does not
require the United States to permit individuals to challenge
treaty violations in domestic court, and there is no evidence
that the President or the Senate intended such an outcome
when they adhered to this treaty. The President’s inter-
pretation of the Vienna Convention warrants substantial
deference from this Court. The President is in the best
position to determine the impact of any particular inter-
" In accordance with Supreme Court Rule 37.6, Amici affirm that no
person or entity other than Amici and their counsel authored this brief in
whole or in part, and that no person or entity, other than Amici and their
counsel, has made a monetary contribution to the preparation or
submission of this brief. Letters of consent to the filing of this amicus
curiae brief are on file with the Clerk of the Court.
2
pretation on the foreign relations of the United States. In this
case the President’s interpretation is consistent with the text
of the Convention, which does not specify the means of
domestic enforcement, and the practice of other signatory
states, not one of which has treated the Vienna Convention as
authorizing private enforcement in domestic courts. A
contrary interpretation would cast a pall on future treaty
negotiations by the United States because it would increase
the risk of unanticipated and potentially undesirable private
interference with treaty enforcement.
Neither comity nor a policy of uniform treaty interpretation
compels this Court to regard the Vienna Convention as
creating a private right of enforcement. The International
Court of Justice, the only tribunal that has reached such a
conclusion, is not a national court but an international agency
with clearly delimited authority. It lacks the characteristics of
a domestic agency that invite judicial deference. Regarding it
as an expert body deserving of special deference will deter
the United States from joining future treaties that assign
even limited responsibility to international agencies. Finally,
a decision that the Vienna Convention authorizes private
enforcement will disrupt rather than promote uniform treaty
interpretation, as no other state has reached such a
conclusion.
ARGUMENT
I. THE VIENNA CONVENTION DOES NOT
CONFER ON INDIVIDUALS A JUDICIALLY
ENFORCEABLE RIGHT TO CONSULAR
NOTIFICATION AND ACCESS -
This Court has long held that the decision of the United
States to adhere to a treaty, made in conformity with Article
Il, § 2, cl. 2, does not automatically endow individuals with
the right to seek judicial redress for treaty violations. Because
treaties typically establish obligations between states, they do
3
not normally empower domestic courts to embark on their
own enforcement regime. Courts are reluctant to infer that
this power exists absent clear evidence that the Executive and
the Senate intended such a result. In the case of the Vienna
Convention on Consular Relations, April 24, 1963, 21 U.S.T.
77, 596 U.N.T.S. 261 (Vienna Convention), there is no
evidence indicating that the Executive and the Senate ex-
pected courts in the United States to adjudicate private claims
based on that treaty.
A. The Question of Whether a Treaty Creates a
Judicially Enforceable Right Is Analytically
Distinct From the Issue of Whether a Treaty is
Self-Executing
This Court long has recognized that the questions of
whether a treaty is self-executing and whether it allows
individuals to seek judicial redress for its violation are
analytically distinct questions. To say that a treaty is self-
executing means only that no further legislative enactment is
necessary for the treaty to have legal effect in the United
States. In the case of the Vienna Convention, for example, the
treaty is self-executing in the sense that police officials
became obligated to inform persons under detention of the
possibility of consular notification without further actions by
Congress. To say that a treaty has some legal effect, however,
does not mean that every person with an interest in the
treaty’s enforcement necessarily has the power to seek
judicial relief for a violation. Rather, the courts of the United
States must determine who has the authority to enforce a
treaty and what remedies may be sought in light of what the
treaty text expressly requires and what the Executive and the
Senate intended in adhering to the instrument, interpreted
against the general background practice of the political
branches and the judiciary with regard to treaty enforcement.
4
At a minimum, a treaty should not be read as empowering
private persons to obtain domestic judicial enforcement in
circumstances where a domestic statutory enactment would
not be interpreted as authorizing a private suit. As this Court
has held on numerous occasions, a statute can have legal
effect and still not delegate enforcement power to individuals.
Jackson v. Birmingham Bd. of Ed., 544 U.S. ___ (2005);
Gonzaga University v. Doe, 536 U.S. 273 (2002); Correc-
tional Services Corp. v. Malesko, 534 U.S. 61 (2001);
Alexander v. Sandoval, 532 U.S. 275 (2001); Thompson vy.
Thompson, 484 U.S. 174 (1988); Merrell Dow Pharma-
ceuticals Inc. v. Thompson, 478 U.S. 804 (1986); Middlesex
County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453
U.S. 1 (1981); California v. Sierra Club, 451 U.S. 287
(1981); Pennhurst State Sch. & Hosp. v. Halderman, 451
U.S. 1 (1981); Universities Research Ass'n v. Coutu, 450
U.S. 754 (1981); Touche Ross & Co. v. Redington, 442 U.S.
560 (1979); cf. Cannon v. University of Chicago, 441 U.S.
671, 730 (1979) (Powell, J., dissenting).
Some of these cases involve the doctrine of implied private
rights of actions, while others deal with the scope of specific
legislation, particularly 42 U.S.C. § 1983. What they have in
common, and what makes them relevant to the issue of treaty
interpretation, is their recognition that legislative choices
about enforcement mechanisms represent significant policy
determinations that should not be preempted by the judiciary.
The manifest capacity of Congress to provide expressly for
private enforcement of its enactments often has persuaded
this Court that it should not attempt to create an additional
enforcement mechanism when Congress has not asked it to
do so. The same logic applies to treaty interpretation.
Petitioners, in effect, seek a rule that would create a strong
‘presumption in favor of implying judicial enforcement of
treaties on behalf of private persons. The Brief for Amici
5
Curiae Law Professors in Support of Petitioners, at 5, argues -
in particular that:
“(If an individual was harmed by a past violation of his
primary treaty rights, or if he is likely to be harmed by a
future violation of those rights, then the individual is
entitled to a judicial remedy, even if the treaty itself does
not create a private right of action, and even if the treaty
says nothing about the capacity of individuals to invoke
the treaty before a domestic court.”
This proposal should be compared with the four-factor test of
Cort v. Ash, 422 U.S. 66 (1975), which for some years was
invoked by this Court as the basis for implying a private right
of action from a statute. The proposal would go much further
than did the now discredited Cort test, because it would
mandate private enforcement even if only one of the Cort
criteria were met, namely if the plaintiff is a member of a
class for whose especial benefit a measure was adopted.
Yet the reasons for not implying a private right of en-
forcement from the unadormed language of a treaty provision
are, if anything, stronger than those for not reading private
enforcement rights into a statute. First, treaty rights by their
nature involve the obligations of not just the United States,
but of the other parties to the compact. Yet private judicial
enforcement of treaty rights in other countries, absent clear
and explicit provision, is unheard of. Thus, private enforce-
ment in the United States would create a_ substantial
asymmetry in the burdens bore by the United States.
Second, treaty obligations, unlike statutes, cannot be amended
unilaterally by the President and Congress. Rather, clari-
fication of a treaty in light of a judicial determination that
does not reflect the intent of the parties requires a new treaty
negotiation and unanimous assent of all treaty parties. These
institutional impediments to treaty adoption and imple-
mentation suggest that this Court should not lightly read
private enforcement into treaties.
6
On numerous occasions Congress has provided expressly
for private enforcement of treaty rights. The most common
instance involves dispute settlement processes that have the
Capacity to produce monetary awards. The United States both
has signed treaties with individual states to resolve particular
disputes and joined multilateral regimes that create a means
for addressing prospective controversies. In these instances,
Congress has enacted separate legislation providing for the
domestic recognition of the decisions of these tribunals.
Where no separate authorizing legislation applied, this Court
refused to give effect to a tribunal award. See, e.g., La Abra
Silver Mining Co. v. United States, 175 U.S. 423 (1899)
(claim derived from Convention Between Mexico and the
United States of 1868 subject to judicial consideration only
pursuant to 1892 statute); United States v. Blaine, 139 U.S.
306, 323 (1891) (same Convention: “The government as-
sumed the responsibility of presenting his claim, and made it
its own in seeking redress in respect to it.”); United States v.
Weld, 127 U.S. 51 (1888) (1871 Treaty of Washington);
Alling v. United States, 114 U.S. 562 (1885) (1868 Mexico-
United States Convention); Great Western Insurance Co. v.
United States, 112 U.S. 193 (1884) (1871 Treaty of Wash-
ington); Frelinghuysen v. Key, 110 U. S. 63, 74 (1884) (1868
Mexico-United States Convention: “No nation treats with a
citizen of another nation except through his government.”).
Two modern multilateral regimes to which the United
States is a party similarly reflect this pattern. The United
Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517,
T.1.A.S. No. 6997, provides for the recognition and enforce-
ment of commercial arbitration awards. The United States
both joined the treaty and enacted 9 U.S.C. §§ 201-07, which
gives domestic force to the treaty rights by expressly
authorizing judicial enforcement. Similarly, the Convention
on the Settlement of Investment Disputes Between States and
Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1270,
7
T.LA.S. No. 6090, 575 U.N.T.S. 159, obligates the United
States to give effect to arbitration awards in investment
disputes. Congress then enacted a statutory provision
enabling courts to enforce these awards. 22 U.S.C. §§ 1650,
1650a (2001). Significantly, Congress provided for the
special case of enforcement of an international arbitral award
against the United States with yet another statute, 28 U.S.C.
§ 2414 (2001), that gives the Attorney General the discretion
to approve payment except in cases where, under authority
provided by 22 U.S.C. § 1650a(b), a federal district court has
ordered enforcement.
Whatever the practice of this Court in the period before
Erie R.R. v. Tompkins, 304 U.S. 64 (1938), when federal
courts freely drew on a wide range of sources to craft rules of
decision in federal cases, its modern practice has been not to
infer an intention to authorize-private enforcement of a treaty
in the absence of either a separate statute or otherwise clear
treaty language and manifest intent of the President and the
Senate to do so. See, e.g., Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 442-43 (1989) (treaties
not intended to create judicially enforceable private rights). It
is this practice that provided the contemporary background to
the decision of the President and the Senate to adhere to the
Vienna Convention in 1969.
Express authorization of judicial enforcement of treaties is
the norm; the instances since Erie where this Court has found
that a treaty independently provides for private enforcement
are rare. For example, the Convention for the Unification of
Certain Rules Relating to International Transportation by Air,
Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11,
reprinted in note following 49 U.S.C. § 40105 (2001),
commonly known as the Warsaw Convention, addresses di-
rectly the rights of carriers, shippers and passengers engaged
in international air transport, using mandatory language that
is typical of private law statutes. Not surprisingly, the
signatories to this Convention have treated it as supple-
8
menting the rules of law that courts can apply to private
disputes. E.g., Olympic Airways v. Husain, 540 U.S. 644
(2004) (deriving rule of decision from Warsaw Convention in
private litigation); Eastern Airlines v. Floyd, 499 U.S. 530
(1999) (same). But nowhere has any signatory country’s
domestic court, much less this Court, inferred from the
Warsaw Convention a power of a private person to seek
judicial redress against a state that does not fully implement
its obligations under the Convention.’
B. The Executive Branch’s Interpretation of
the Vienna Convention is Entitled to Great
Deference
The Executive branch consistently has interpreted the
Vienna Convention as not conferring judicially enforceable
rights on criminal defendants. The State Department artic-
ulated this interpretation to the Senate in 1969, when the
Convention was being considered for ratification, and in a
letter to all 50 state governors immediately following
ratification. See S. Exec. Rpt. No. 9, at 18 (1969) (quoting the
State Department’s representation that “{t}he Vienna Con-
vention does not have the effect of overcoming Federal or
State laws beyond the scope long authorized in existing
' Amici cite American Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003),
as an instance where this Court implied a private right to judicial
enforcement from executive agreements regarding the claims of Holocaust
victims. Brief for Amici Curiae Law Professors in Support of Petitioners
at 19-20. But, as this Court noted, the executive agreements at issue in
Garamendi were not treaties, but rather an expression of the “foreign
policy of the Executive Branch” with which a California statute interfered.
539 U.S. at 413. The significance of the policy of the Executive as a basis
for preempting state law that interferes with its conduct of foreign
relations rests on constitutional grounds that are independent of treaty
interpretation. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981);
Zschernig v. Miller, 389 U.S. 429 (1968); United States v. Pink, 315 U.S.
203 (1942).
9
consular conventions.”); United States v. Li, 206 F.3d 56, 64
(1st Cir. 2000) (quoting the State Department legal advisor’s
1970 letter denying that “the Vienna Convention wil] require
significant departures from the existing practice within the
several states of the United States”). More recently, the State
Department has emphasized that “such a statement would not
" have been made if the Department of State had contemplated
that the [Vienna Convention] might require that failures of
consular notification be remedied in the criminal process
through prejudice hearings, and possibly the suppression of
evidence or the undoing of other aspects of the criminal
process.” Department of State Answers to the Questions
Posed by the First Circuit in United States v. Nai Fook Li
(Oct. 15, 1999) (available at http://www.state.gov/documents/
organization/7 11 1.doc).
The Executive’s representations to the Senate, the States,
and the courts are mirrored in its actual practice imple-
menting the Vienna Convention. As the Solicitor General
explained just last year:
The State Department’s longstanding practice has been
to investigate a country’s complaint about the absence of
notification. When a violation has been confirmed, the
State Department has extended a formal apology to that
country’s government and sought to prevent a recurrence
through educational efforts.
Brief for the United States as Amicus Curiae in No. 04-5928,
Medellin v. Dretke, at 22-23.
The State Department has taken an identical position on
behalf of the United States when appearing before interna-
tional tribunals. The first was Paraguay’s suit in the Inter-
national Court of Justice (ICJ) over Vienna Convention
violations in the case of Angel Breard. Paraguay alleged
that the Convention entailed an enforceable right to over-
10
turn Breard’s conviction. The State Department, however,
insisted that: ;
“There is absolutely no support for this claim in the
language of the [Vienna} Convention. The Court should
not read into a clear and nearly universal multilateral
instrument such a substantial and potentially disruptive
additional obligation that has no support in the language
agreed by the parties.” |
Verbatim Record (Paraguay v. U.S.), 1998 LC.J. 426, at 3.20.
Likewise, before the Inter-American Court of Human Rights,
the Department argued that the Vienna Convention “does not
require the domestic courts of State parties to take any actions
in criminal proceedings, either to give effect to its provisions
or to remedy their alleged violation.” Written Observations of
the United States of America, Request for Advisory Opinion
OC-16, June 1, 1998 (corrected June 10, 1998).
Most recently, in its brief to this Court in Medellin v.
Dretke, the United States reiterated that “[t}he Executive
Branch has never interpreted the Vienna Convention to give a
foreign national a judicially enforceable right to challenge his
conviction and sentence.” Brief for the United States as
Amicus Curiae in No. 04-5928, Medellin v. Dretke, at 22-23;
see also Brief for the United States as Amicus Curiae in Nos.
97-1390 and 97-8214, Republic of Paraguay v. Gilmore &
Breard v. Greene, at 18-23 (taking the same position). The
Executive’s interpretation is thus emphatic, consistent, and
longstanding. It has been advanced in legislative, judicial, and
international fora, as well as in the State Department’s day-
to-day practice. And it is consistent with the Depart-
ment’s interpretation of other treaties that employ similar
language to the Vienna Convention. See Brief for the United
States as Amicus Curiae in No. 04-5928, Medellin v. Dretke,
at 25-26 (discussing the International Convention for the
Suppression of the Financing of Terrorism).
1]
“Although not conclusive, the meaning attributed to treaty
provisions by the Government agencies charged with their
negotiation and enforcement is entitled to great weight.”
Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,
184-85 (1982). Judges Selya and Boudin have explained that
this deference arises not only “because the State Department
negotiates and administers such treaties,” but also “because,
when foreign affairs are involved, the national interest has to
be expressed through a single authoritative voice. That voice
is the voice of the State Department, which in such matters
speaks for and on behalf of the President.” Li, 206 F.3d at 67
(Selya & Boudin, JJ, concurring). Should this Court reject a
position taken so emphatically and consistently by the United
States in international fora, it would risk undermining the
credibility of the Government in future litigation and
negotiations. That risk should counsel deference to the
Executive’s consistent interpretation.
C. The Practice of Other States Confirms That No
Judicially Enforceable Right Inheres in the
Vienna Convention
There are only a handful of reported foreign judicial
decisions about enforcement of the Vienna Convention. What
precedent exists, however, indicates that criminally accused
in other countries do not have the right to obtain independent
judicial enforcement of the Vienna Convention.
The leading case is Regina v. Partak, 160 C.C.C. (3d) 553
(Ontario Sup. Ct. Jus. 2001), which involved a U.S. citizen
whom Canadian police did not inform of his right to consular
access when arresting him for murder. The Canadian court
ruled that, although the police conduct had violated the
accused’s rights under Article 36 of the Convention, this
violation did not give rise to any independent basis for
judicial relief. Instead, the court applied the same standards
applicable to a Canadian subject to determine whether the
12
accused had received proper notice of his right to counsel and
had made a voluntary confession.
Similarly, a German court also assumed that Article 36
operated for the benefit of individuals but did not regard that
provision as having any impact on the judicially enforceable
rights of a criminal accused. Bundesgerichtshof [BGH]
[Federal Court of Justice] Nov. 7, 2001, 5 BGHSt 116/0,
published in NStZ 2002, 168 (F.R.G.). Moreover, German
practice generally reflects the prevailing view of the means of
enforcement of the Vienna Convention, namely that a state
rectifies its violation of Article 36 by providing to its treaty
partner an apology and assurance on future precautions. See
LaGrand (Germany v. United States), 2001 1.C.J. 104, at § 63
(describing German practice).
Neither counsel for petitioners nor the many amici who
have filed briefs in their support have discovered a single case
where a foreign court has understood the Vienna Convention
as obligating it to entertain private claims based on its vio-
lation.” Our research also has failed to uncover any such case.
While the practice of other nations in the application of a
multilateral treaty are not binding on this Court, they do
provide substantial evidence of what the makers of that treaty
intended. Here the practice of signatory states is fully con-
sistent with the position that the Vienna Convention does not
? The Brief of Former United States Diplomats as Amici Curiae in
Support of Petitioners, at 20, cites-the Canadian and German decisions
discussed above as authority for the proposition that Canadian and
German courts “have accepted as binding the ICJ’s interpretation that the
VCCR creates judicially enforceable rights.” This is wrong. First, the
Canadian decision contains no reference to any ICJ decision at all, and the
German decision made no reference to the ICJ’s views on judicial
enforcement. Second, in each instance the court ruled that the Vienna
Convention did not authorize national courts to provide any special
remedies where the police failed to honor the notification obligation.
13
of its own force authorize national courts to entertain private
efforts to enforce its obligations.
D. The Court Should Avoid an Interpretation of
the Vienna Convention That Will Discourage
the United States from Entering into New
Treaty Commitments
The recognition by this Court of a private right to seek
judicial enforcement of the Vienna Convention would do
more than impose on the United States a burden that no other
national court has placed on any state that adheres to that
treaty. It would establish a precedent for implication of
private enforcement of international treaties more broadly.
Such a precedent would cast a pall on all future U.S. treaty
negotiations, at least where the interests of individuals were
potentially at issue.
Since the conclusion of World War II, the Executive and
Congress have manifested a persistent concern that the
assumption of international obligations by the United States
would lead to new assertions of claims for judicial relief by
private persons, with attendant uncertainty and potentially
undesirable outcomes. During the 1950s the Senate came
within a single vote of recommending a constitutional
amendment that would have precluded any treaty from having
any domestic legal effect. President Eisenhower at that time
initiated a practice of reassuring the Congress that the
Executive would not seek to use international agreements
as a general means for changing domestic law. See Curtis
A. Bradley, Foreign Affairs and Domestic Reform, 87 VA. L.
REV. 1475 (2001). Later administrations have adhered to
this path.
On some occasions, the President and the Senate have
taken extra measures to ensure that the judiciary does not
interpret a treaty as creating new rights for which individuals
can seek judicial enforcement. The practice of announcing
14
“reservations, understandings and declarations” (RUDs) at
the time of signing or approving a treaty has become common
since the Carter Administration. Typically a RUD contains a
statement to the effect that the United States does not re-
gard the treaty as operating independently of the existing
mechanisms for protecting individual interests under U.S.
law. For a comprehensive review of the practice, see Curtis
A. Bradley & Jack L. Goldsmith, Treaties, Human Rights,
and Conditional Consent, 149 U. PA. L. REV. 399 (2000).
It would be wrong, however, to assume that the President
and the Senate intend a treaty to create judicially enforceable
private rights in all instances where a RUD is not made. First,
the practice is precautionary and does not permit any negative
inference. Second, some authorities have questioned whether
it is even possible for a RUD to be effective. Not only have
scholars argued that the Constitution forbids the President and
the Senate from imposing any limitation on the domestic
effect of an international treaty, e.g., Louis Henkin, U.S.
Ratification of Human Rights Treaties: The Ghost of Senator
Bricker, 89 AM. J. INTL L. 341 (1995), but at least some
judges have embraced the argument. E.g., /gartua-De La
Rosa v. United States, 415 F.3rd 145, 189-90 (1st Cir. 2005)
(Howard, J., dissenting).
Sound regard for the President’s responsibility to conduct
the international affairs of the United States requires a strong
presumption that, in the absence of very clear treaty language
and confirmatory © idence of party intent from the Executive
and the Senate, treaty obligations do not create private
entitlements to judicial relief. Any other rule is likely to
reduce both the number and quality of international commit-
ments that will be undertaken by the United States.
Nothing other than the national interest and a desire to
ameliorate international problems compels the Executive to
enter into treaty negotiations. The Senate historically has
exercised its advise and consent power with great circum-
15
spection and often has refused to approve treaties that present
a risk of unforeseeable domestic legal developments. The
predictable outcome of a presumption in favor of private.
enforcement thus would be fewer and lesser treaties,
undermining U.S. objectives in international cooperation.
These risks are illustrated by recent litigation over the
Vienna Convention. Until 2005, the United States was a party
to the Optional Protocol to the Vienna Convention on
Consular Relations Concerning the Compulsory Settlement of
Disputes, April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487
(Optional Protocol), a treaty that gave the ICJ the authority to
hear disputes between parties to the Convention. Concerned
that some U.S. courts might treat the decisions of the ICJ as a
binding rule of decision that private persons could invoke in
their lawsuits, the President decided to withdraw from the
Optional Protocol.’
The building of international law through treaties and other
international agreements is both critical and valuable. The
President and the Senate must engage a fast changing, and not
always benign, world with a full array of legal resources. This
exercise of the foreign affairs power and the treaty power
itself will be thwarted by appending an unpredictable set of
civil lawsuits and criminal defenses to silent treaty texts.
Criminal law enforcement in our constitutional system is
handled by hundreds of thousands of federal, state, county,
and local police officers. The potential disruption to thous-
ands of criminal prosecutions, including grave crimes that
involve victim's rights, is not to be lightly entertained.
’ Nor was this an idle fear. Months after the denunciation of the
treaty, one Court of Appeals asserted that “we are of the opinion that the
United States is bound by ICJ rulings in cases where it consented to the
court's jurisdiction, just as it would be bound by any arbitral procedure to
which it consented . . .” Jogi v. Voges, 425 F.3rd 367, 384 (7th Cir. 2005).
16
In recognition of these exigencies, this Court should clarify
the law applicable to the domestic enforcement of treaties to
make clear to the political branches what the international
obligations that they contemplate will mean in terms of
domestic consequences. In particular, this Court should sup-
port the constitutional role of these branches as the masters of
our nation’s international commitments.
Il. NEITHER COMITY NOR THE NEED FOR
UNIFORMITY IN TREATY INTERPRETATION
JUSTIFIES A CONCLUSION THAT THE
VIENNA CONVENTION FORBIDS A STATE
FROM APPLYING A NEUTRAL PROCE-
DURAL RULE TO FORECLOSE UNTIMELY
ASSERTIONS OF A CLAIM OTHERWISE
ASSERTABLE UNDER THAT TREATY
Petitioners argue that this Court should follow the ICJ’s
interpretation of the Vienna Convention. Without warrant in
the language of the Convention, the ICJ has asserted that
Article 36 operates for the benefits of individuals, that the
Convention entitles persons who have not received the
requisite notification of a right to consular access to a judicial
hearing as to whether the treaty violation has prejudiced
them, and that this entitlement cannot be made contingent on
timely assertion of the violation. All three of these inter-
pretations are wrong. Moreover, no reason exists for this
Court to privilege the interpretation of the ICJ over the
interpretation consistently offered by the Executive.
A. The Doctrine of Comity Traditionally Has Been
Applied to the Decisions of Foreign States,
Not Those of an International Organization
Created by Treaty
Petitioners argue that this Court must follow the ICJ’s
interpretation of the Vienna Convention as a matter of com-
17
ity. But this argument is inapplicable under the circumstances
of this case.
First, the ICJ’s interpretation cannot be reconciled with the
language of the treaty or general international practice. Until
the ICJ’s decisions in the several Vienna Convention cases,
no responsible decisionmaker had suggested that treaty
commitments otherwise silent on the issue would override
neutral and longstanding domestic rules regarding the time-
liness of asserting claims and procedural default.
Second, the doctrine of comity, which has its origins in the
Treaty of Westphalia and the concepts of sovereign power
arising from the settlement of the Thirty Years War, applies
to sovereigns, not to international bodies that themselves are
the product of international agreements. Hilton v. Guyot, 159
U.S. 113, 164 (1895), clearly states that comity constitutes
“the recognition which one nation allows within its territory
to the legislative, executive, or judicial acts of another
nation.” (emphasis added). This limitation on the doctrine of
comity is not a mere formality: International law rests on the
choices and behavior of states. An international organization
such as the ICJ is a creature of the international instrument
that creates it, and has only such authority as that instrument
specifies, and hence the signatory states authorize. Extending
the authority of an international body through common law
doctrines such as comity undermines, rather than reinforces,
the choices that signatory states made in the body’s foun-
dational instrument.
International law traditionally has involved rules created by
States that constrain the otherwise unfettered exercise of
national sovereignty. But an international organization such
as the ICJ has no independent sovereignty, and thus nothing
to surrender through international bargaining. Rather, an
international body’s authority is the product of bargaining
among the states that create it. Comity, which grows out of
both respect for another nation’s sovereignty and an expec-
18
tation of reciprocity, thus has no bearing on an international
entity such as the ICJ, which lacks both sovereignty and the
capacity to act reciprocally.
Nor is the ICJ, in its role as an adjudicative body inter-
preting the Vienna Convention in the course of resolving
inter-state disputes properly before ‘t, analogous to a domes-
tic agency charged with interpretation of a statute. We do not
question the need for judicial deference to a domestic
agency’s exercise of the discretion left to it by Congress to
elucidate the meaning of the statute that it administers.
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843-44 (1984). But an international court
does not stand in the same position as does a domestic agency
in its effect on the domestic law of the United States. There is
no sound basis for inferring from any supposed ambiguity in
treaty language a delegation to an international agency of the
authority to provide an authoritative, binding interpretation of
its meaning.
First and most important, the formulation of a statutory
interpretation by a domestic agency is subject to numerous
procedural and institutional constraints during its promul-
gation and can always be changed by a simpie legislative
enactment. An international organization, in contrast, does
not have to comply with any requirements of public access
and participation, nor indeed with the ethical rules appro-
priate to a constitutional democracy. More importantly, the
United States cannot unilaterally correct or amend ICJ
interpretations with which it disagrees. It only has the
unpalatable alternative of withdrawing from a treaty, as it did
with regard to the Optional Protocol. Congress, by contrast,
can repudiate or revise any agency interpretation of domestic
law with which it disagrees while leaving the underlying
statutory scheme intact and certainly without incurring the
international repercussions of a treaty abrogation.
19
Second, the mandate and composition of an international
tribunal reflects the many and various national interests of the
states that set it up. Although we must assume that
establishment of a tribunal by a treaty to which the United
States is a party reflects the best interests of the United States,
it does not follow that the members of the tribunal have any
ongoing obligation or incentive to act in ways that are
compatible with U.S. goals and values. Rather, members are
chosen by particular states and, even though they are not the
official representatives of their national governments, often
continue to reflect the perspective of those governments.*
Nothing in this Court’s past decisions indicates a willing-
ness to give special deference to the [CJ’s interpretation of
international law. On occasion this Court has regarded ICJ
decisions as evidence of the conient of international law in
cases that depend on international law for their resolution.
See, e.g., United States v. Maine, 475 U.S. 89 (1986) (looking
to 1951 ICJ decision as evidence of rule of decision to be
applied in dispute over seabed ownership); United States v.
Louisiana, 470 U.S. 93 (1985) (same). But it also has
demonstrated a willingness to disregard or narrow claims
based on ICJ judgments. See, e.g., Breard v. Green, 523 U.S.
371, 375 (1998) (ICJ decision did not trump procedural rules
of forum state).
The same approach should apply here. The opinion of the
‘J is one piece of evidence as to the content of the
obligations that signatories to the Vienna Convention bear.
This evidence cannot outweigh, however, the language of the
Convention, the considered views of the Executive, the
consistent practice of the signatory states, or clear indications
* For recent scholarship presenting evidence that the judges on the ICJ
vote m ways that broadly reflect the interests of the states that appoint
them, see Eric A. Posner & Miguel F.P. de Figueiredo, /s the Inter-
national Court of Justice Biased? 34 J. LEG. STUD. 599 (2005).
20
of the understanding of the President and the Senate at the
time that the United States approved the treaty.” All of these
factors make clear that when the United States approved the
Vienna Convention, it did not thereby endow persons accused
of crimes in the United States with a new avenue to obtain
judicial review of police actions.
B. Extending the Doctrine of Comity to an
Organization Created by Treaty Would
Discourage the United States from Agreeing to
Establish Such Organizations
The creation of permanent international organizations
based on treaties and other international agreements is one of
the most important developments of the post-World War Il
period. The United Nations, the World Bank and the
International Monetary Fund were established at the end of
the War; many other bodies have followed since. Important
recent examples include the World Trade Organization,
established by an international agreement that Congress
endorsed in 1994, and the International Criminal Court,
founded by a treaty that the United States signed in 2001 but,
following strong indications of opposition in the Senate,
President Bush later indicated-that the United States would
* To the extent the legislative history of the Optional Protocol is rele-
vant, one should note that a representative of the State Department
explained in testimony before the Senate, regarding the legal effect of the
Optional Protocol, “|ijf problems should arise regarding the interpretation
or application of the convention, such problems would probably be
resolved through diplomatic channels.” Vienna Convention on Consular
Relations, Sen. Exec. Rpt. 91-9, at 19 (1969) (Statement of J. Edward
“Lyerly, Deputy Legal Adviser for Administration). Additionally, “parties
to the optional protocol may agree to resort to . . . an arbitral tribunal” or
conciliation. Jd (emphasis added). Nothing in this testimony suggests that
the United States anticipated that accession to the Optional Protocol
would require U.S. courts to open up literally thousands of future criminal
convictions to judicial challenge due to the ICJ’s interpretation of the
Vienna Convention.
21
not approve. Many of these organizations typically exercise
an adjudicative function and purport to provide authoritative
interpretations of the treaties or agreements on which they
are based.
We do not question the value and importance of these
kinds of international organizations, whatever the shortcom-
ings of particular bodies. They permit states to develop
organized, predictable and multilateral responses to global
problems that overflow national boundaries. Their assertions
about the meaning of particular treaties can guide the conduct
of international actors and help to form a consensus. But if a
consequence of setting up such an organization were a
substantial possibility that U.S. courts would regard its
pronouncements as authoritative or preclusive, then our
political branches understandably would be wary of entering
into new commitments, or of continuing adherence to prior
agreements, that establish such adjudicative bodies.
In a few recent instances where the United States by
legislative enactment consented to the delegation of certain
adjudicatory functions to international organizations, Con-
gress expressly provided that private persons could not
invoke any aspect of the international agreement (including
implicitly the interpretations of the presumably authoritative
interpreters) in domestic court. E.g., North American Free
Trade Agreement Implementation Act of 1993, § 102(c)
(codified at 19 U.S.C. § 3312(c)); Uruguay Round Agree-
ments Act of 1994, § 102(c) (codified at 19 U.S.C.
§ 3512(c)); Dominican Republic-Central America-United
States Free Trade Agreement Implementation Act of 2005,
§ 102(c) (codified at 19 U.S.C. § 4012(c)). These particular
instances indicate a more general unwillingness on the part of
22
Congress to invite domestic courts to exercise free reign in
implementing the decisions of international tribunals.°
A decision by this Court to extend the doctrine of comity to
the ICJ not only would run counter to these clear indications
of the intent of the political branches, but would chill future
efforts to create and empower international tribunals. The
President and Congress, in the case of executive agreements,
or the Senate, in the case of treaties, would not be able to
ensure that establishment of such a body would not have
unwanted ramifications in domestic law. As noted above,
they have been unable to rely on the compliance of lower
courts even in the face of express directions not to treat a
treaty aS creating judicially enforceable rights. Without a
clear indication from this Court about the limited effect of
international adjudication on domestic law, the political
branches are likely to hold off from any future commitments
in spite of their clear value.
° In each of these three instances, Congress has provided for a narrowly
tailored legal mechanism for domestic enforcement of the trade agree-
ment. The United States is authorized to bring suit for prospective relief
against state and local law or practice that violates U.S. obligations under
the agreement. No other kind of litigation is permitted. North American
Free Trade Agreement Implementation Act of 1993, § 102(b)(2) (codified
at 19 U.S.C. § 3312(b)(2)); Uruguay Round Agreements Act of 1994,
§ 102(b)(2) (codified at 19 U.S.C. § 3512(b)(2)); Dominican Republic-
Central America-United States Free Trade Agreement Implementation
Act of 2005, § 102(b)(2) (codified at 19 U.S.C. § 4012(b)(2)).
23
C. Other Countries Do Not Ordinarily Interpret
Their Treaty Commitments as Delegating to
International Organizations the Authority to
Render Judgments in Particular Disputes To
Be Enforced by Their Domestic Courts in the
Absence of an Express Provision Stipulating
Such an Effect
Petitioners argue that this Court should defer to the ICJ’s
interpretation of the Vienna Convention so as to promote
uniform interpretation of that treaty. To the contrary, were
this Court to regard the jurisprudence of the ICJ as obligating
the judiciary of the United States to enforce the Vienna
Convention at the behest of private persons, it would depart
from, rather than reinforce, widely accepted international
understandings about the relationship between international
obligations and domestic law.
Other countries do not normally interpret a treaty acceding
to the jurisdiction of an international tribunal as imposing on
domestic courts the responsibility for enforcing the orders of
such tribunals. The only significant exception to this principle
is the case of the judicial bodies of the European Community.
But the European Community constitutes a sui generis at-
tempt to create an extensive legal regime embracing its
member states, not a template for general international law.
And even the European Court of Justice, the principal judicial
body of the European Community, has rejected the possibility
that it could act as an enforcing agent for any other inter-
national tribunal.
Considering first the International Court of Justice, our
research has turned up no instance where a nation has
embraced the principle of direct enforcement of ICJ orders.
The universal practice is to regard ICJ decisions as important
evidence of the content of international law in cases where
such law is relevant to a matter otherwise before a national
court, but not as independent grounds for a national court’s
24
authority. Nations understand that their legislatures and
governments, not their judiciaries, have the primary respons-
ibility for effecting compliance with ICJ orders. We are
unaware of any instance, and petitioner and the various amici
in support of petitioner cite to no instance, where another
state through a domestic court decision has mandated the
direct enforcement of an ICJ order. For a comprehensive
review of foreign judicial decisions rejecting direct enforce-
ment of ICJ decisions, see A. Mark Weisburd, /nternational
Courts and American Courts,2\ Mich. J. INt’L L. 877, 886-
87 (2000).
European practice regarding the European Court of Human
Rights also is instructive. This international tribunal oversees
compliance with the European Convention for the Protection
of Human Rights and Fundamental Freedoms, Nov. 4, 1950,
213 U.N.T.S. 221, a treaty with 45 parties that protects basic
human rights in the covered countries. Since 1998, individ-
uals have had the right to bring a case directly to the
European Court of Human Rights. But enforcement of its
judgments, including orders for compensation, depends
entirely on local law, not the Convention itself. In the United
Kingdom, for example, it is the Human Rights Act 1998, ch.
” Amici intimate that Belgium has given direct effect to an LC) decision
involving the immunity from arrest of government officials. Brief of
International Court of Justice Experts as Amici Curiae in Support of
Petitioners at 26 n.46. But the Belgium courts grounded their decisions on
their interpretation of donestic law. See Constanze Schulte, COMPLIANCE
WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE 270 (2004);
Alain Winants, The Yerodia Ruling of the International Court of Justice
and the 1993/1999 Belgian Law on Universal Jurisdiction, 16 LEIDEN J.
INT'L L. 491, 505-06 (2003); Jan Wouters, The Judgément of the
International Court of Justice in the Arrest Warrant Case: Some Critical
Remarks, 16 LEIDEN J. INT'L L. 253, 266 (2003) (Belgian Supreme Court
decision rested on Belgian statute). Amici wishes to substitute speculation
by scholars about the motivation of these decisions for what the courts
actually said.
25
42 (Eng.), that provides the legal basis for domestic
enforcement of the Convention. For a recent discussion of the
relationship between the Convention and British law, see A v.
Secretary of State, {2005} 2 A.C. 68, | 42 (H.L. 2004). Even
European nations whose constitutions subordinate domestic
legislation to international Jaw, such as Germany, Italy, and
the Netherlands, do not give direct effect to the judgments of
the European Court of Human Rights. For a thorough
discussion of practice in these countries, see THE EXECUTION
OF STRASBOURG AND GERMAN HUMAN RIGHTS DECISIONS
IN THE NATIONAL LEGAL ORDER (Tom Barkhuysen et al.
eds. 1999).
The European Union (EU) and the European Community
(EC), the EU’s principal institutional structure, rest on treaties
which, in the case of the European Community, create
judicial bodies. The parties to these treaties do regard the
decisions of the judiciary of the European Community,
namely the European Court of Justice (ECJ) and the ECJ’s
Court of First Instance, as generally creating judicially
enforceable interests in their domestic legal order. See, e.g.,
Regina v. Secretary of State for Transport ex parte
Factortame Ltd., [1991] | All E.R. 70 (H.L.). But cf. Brunner
v. The European Union Treaty, [1994] 1 C.M.L.R. 57
(German Federal Constitutional Court) (reserving right to
review decisions of ECJ for compliance with German
constitutional order). This outcome, however, results not from
an abstract sense of obligation to comply with the orders of
international tribunals, but rather because of explicit
provisions in the treaty constituting the EC, Consolidated
Version of the Treaty Establishing the European Con...aunity,
Dec. 24, 2002, O.J. (C 325) 33, Articles 228, 244, 256. These
articles expressly impose on domestic courts the obligation to
carry out the orders of the ECJ.
The direct enforcement of ECJ decisions by the member
States does not represent a new approach generally to
26
domestic incorporation of international law. The EC involves
a distinctive, perhaps unique, level of extensive and intensive
cooperation among the members, who in a sense have formed
a new confederation of member states. Direct enforcement of
the ECJ’s decisions facilitates that cooperation, much like the
decisions of this Court promote the smooth workings of our
federal union. Rather than serving as a new model of
international adjudication, the ECJ operates in relation to the
legal system of the member states much as this Court does
with respect to the legal systems of the several States.
The ECJ’s approach to international law (the foundational
treaties of the EU and the EC aside) closely resembles the
traditional perspective of this Court. Like this Court, the ECJ
recognizes that the decisions of international tribunals are
informative, but that treaty provisions obligating the EC to
submit disputes to a tribunal do not mean that the decisions of
those tribunals become part of EC law. In particular, the ECJ
considers the decisions of the ICJ as evidence of the content
of international law in cases where it must look to inter-
national law for a rule of decision but retains independent
competence to determine whether the international rule at
issue has become part of the body of EC law. See, e.g., A.
Racke GmbH & Co. v. Hauptzollamt Mainz (Case C-162/96),
1998 E.C.R.1-3655; Anklagemyndigheden v. Poulsen (Case
C-286/90), 1992 E.C.R. 1-6019. Cf. Rosalyn Higgins, The
ICJ, the ECJ, and the Integrity of International Law, 52 INT’L
& Compe. L.Q. 1 (2003) (explaining relationship between ECJ
and ICJ).
As we discussed above, no signatory to the Vienna
Convention has regarded that treaty as an exception to the
general pattern of no private judicial enforcement of treaty
obligations. This Court should uphold the Executive’s
consistent understanding of U.S. obligations under that treaty
and refuse to imply a private right to judicial enforcement.
27
CONCLUSION
The Vienna Convention does not give private persons the
power to challenge in court alleged violations of its pro-
visions. A decision to the contrary would have a serious
negative impact on the willingness of the political branches to
enter into new treaties and create new _ international
organizations with adjudicative functions. The course urged
on this Court by petitioners, far from bringing U.S. practice
into conformity with that of other nations, would give
international law and the decisions of international tribunals a
role in the U.S. legal system that other nations do not allow
their courts to undertake. Accordingly, the judgments of the
Supreme Court of Oregon and the Supreme Court of Virginia
should be affirmed.
Respectfully submitted,
SAMUEL ESTREICHER PAUL B. STEPHAN
40 Washington Square So. - Counsel of Record
New York, NY 10012 580 Massie Rd.
(212) 998-6226 Charlottesville, VA 22903
EUGENE THEROUX (454) 500-1098
BAKER & MCKENZIE LLP Counsel for Amici Curiae
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 452-7012
January 31, 2006
la
APPENDIX—LIST OF AMICI
Samuel Estreicher is the Charles L. Denison Professor of
Law and Co-Director, Institute for Judicial Information, New
York University School of Law. He has been on the faculty
of New York University since 1978.
John C. Harrison is the D. Lurton Massie, Jr. Professor of
Law and the Horace W. Goldsmith Research Professor at the
University of Virginia School of Law. He has been on the
faculty of the University of Virginia since 1993 and served in
the Justice Department from 1983 to 1993, from 1990 to
1993 as Deputy Assistant Attorney General, Office of Legal
Counsel.
Julian G. Ku is Associate Professor of Law, Hofstra
University School of Law. He has been on the faculty of
Hofstra since 2002.
John O. McGinnis is Professor of Law, Northwestern
University School of Law. He has been on the faculty of
Northwestern University since 2002, from 1991 to 2002 on
the faculty of Benjamin N. Cardozo School of Law, Yeshiva
University, and from 1985 to 1991, was an attorney-advisor,
then Deputy Assistant Attorney General, Office of Legal
Counsel.
Mark L. Movsesian is Professor of Law, Hofstra
University School of Law. He has been on the Hofstra
faculty since 1993. From 1989 to 1992, he was an attorney-
advisor, Office of Legal Counsel.
Paul B. Stephan is the Lewis F. Powell, Jr. Professor of
Law and the Hunton & Williams Research Professor at the
University of Virginia School of Law. He has been on the
faculty of the University of Virginia since 1979.
Ruth Wedgwood is the Edward B. Burling Professor of
International Law and Diplomacy, Paul H. Nitze School of
2a
Advanced International Studies, Johns Hopkins University
and has been a member of the Secretary of State's Advisory
Committee on International Law since 1993. She has been on
the faculty of the Paul H. Nitze School since 2001, on the
faculty of Yale Law School from 1986 to 2002, and was
Assistant U.S. Attorney, Southern District of New York,
from 1980-86.
A. Mark Weisburd is Professor of Law, University of
North Carolina School of Law. He has been on the faculty of
the University of North Carolina School of Law since 1981.
Ann Woolhandler is the William Minor Lile Professor of
Law and the Class of 1948 Professor in Scholarly Research
in Law at the University of Virginia School of Law. She has
been on the faculty of the University of Virginia since 2002
and from 1990 to 2002 was on the faculty of Tulane
University School of Law.
Ernest A. Young is the Judge Benjamin H. Powell
Professor at the University of Texas School of Law. He has
been on the faculty of the University of Texas since 1999,
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.