Amicus Curiae Brief — Sanchez-Llamas v. Oregon

iX

United States v. Davis,

ope 3. Lf | errr Te Tree Te 9

United States v. Gengler, 510 F.2d 62 (CA2 1975) ......... 10

United States v. Jimenez-Nava,

ee IED odo 24 Genk wan oan ¥ececenoes 8

United States v. Li, 206 F.3d 56 (CA1 2000).... 7,9, 13, 14, 16

United States v. Rauscher, 119 U.S. 407 (1886) ........... 12

United States v. Rosenthal,

of Pe Be Oe i Perrrer errr rrr ery e 10

United States v. Schooner Peggy,

Fes Oe SD SU CUED cos ve nctcacbecseecesct 13

United States v. Stuart, 489 U.S. 353 (1989) .............. {9

Wainwright v. Sykes, 433 U.S. 72 (1977) .......... 28, 29, 30

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) .............. 12

Whitney v. Robertson, 124 U.S. 190 (1888) ............... 17

Wildenuhus ’s Case, 120 U.S. 1 (1887) .......... 00000 e. 1]

Ylst v. Nunnemaker, 501 U.S. 797 (1991) ...........20055 29

Foreign and International! Decisions:

Administration des Habous vy. Deal,

19 I.L.R. 342 (Morocco, Ct. App. Rabat. 1952) ........ 24

X

BGH 5 StR 116/0 decided on 7 Nov. 2001,

available at http://www.bundesgerichtshof.de ....... 18, 20

Canada v. VanBergen, 261 A.R. 387 (2000) .............. 19

Khadr v. Canada, 123 C.R.R. (2d),

IE I Si hg a Ee awe nie Os 20

LaGrand (F.R. G. v. US.),

et Ok , re rer 7, 18, 19

Mackay Radio & Tel. Co. v. Lal-la Fatma Bent si

Moahamed el Khadar et al., 21 1.L.R. 136

(Tangier, Ct. App. Int’l Trib. 1954) ..........cceeees 24

R. v. Abbrederis, {1981] 36 A.L.R. 109 ..........0ee000e- 19

R. v. Bassil and Mouffareg (1990) 28 July,

Acton Crown Court HHJ Sich

(reported in Legal Action 23, December 1990) ......... 20

KR wv Pape, Tt) PCO, CoG Fae oc ccc ccccccccccces 20

R. Van Axel and Wezer (1991) 31 May

Snaresbrook Crown Court, HHJ Sich

(reported in Legal Action 12 September 1991)......... 21

Re Yater, “Judicial Decisions,” 1976 Ital. Y.B. Int’1 Law, Vol. Il

(decided by Italy’s Court of Cassation Feb. 19, 1973).... 19

Socobel v. the Greek State,

DE ee eeeeueee 24, 25

xi

Constitutional Provisions:

U.S. CONST.

Treaties:

ICJ Statute

OR Par sae rrr te ee ree we mmere ware reer

OPTIONAL PROTOCOL TO THE VIENNA CONVENTION

ON CONSULAR RELATIONS CONCERNING THE

COMPULSORY SETTLEMENT OF DISPUTES,

Apr. 24, 1963, 21 U.S.T. 77 (138a) .............

U.N. CHARTER

ON Pee eee PUTT PTET, ULeT rT Tree ey Tree

VIENNA CONVENTION,

rr a Se ee aati

Other Authorities:

1 U.N. Conference on Consular Relations:

Official Records, 21; U.N. Doc.Al Conf.25/16

ce RR 4) G8 a. eee eee

xii

Avena, Counter-Memorial of the United States ............ 19

http://travel.state.gov/news/news_2155.html

(last visited January 24, 2006) ... 0. ccc ccc ecccccenes 22

J. STORY, COMMENTARIES ON THE

COMPLICT GF LAWS SIO (IESE) on cc ccc cccccccccseess 26

Letter from Alfonso Garcia Robles, Foreign Minister of Mexico,

to Henry A. Kissinger, Secretary of State of the

United States of America (Mar. 25, 1976)............. 21

LEYES Y CODIGOS DE MEXICO,

Cor rw OR BOY CHEED oc sc cece rekesseeveneevesss 21

Medellin v. Dretke, No. 04-5928,

Brief for the United States as Amicus Curiae

Supporting Respondent ..........ccccvcscess 14, 26, 27

Paige M. Harrison & Allen. J. Beck,

Prison and Jail Inmates at Midyear 2004 (Table 6),

http://www.ojp.usdoj.gov/bjs/abstract/pjim04.htm

CE TENE FTE DG BOUOD ov cc cesccenevvcnvess |

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES §111(4) (1987) ..............0 0008 7,8

Ge, SE, A, Dee RROD os cc ccnseessvecscns 15, 16

INTEREST OF AMICI CURIAE

The State amici curiae, through their Attorneys General,

respectfully submit this brief in support of Respondents. Under the

Supremacy Clause, the States are bound to observe the terms of

Article 36 of the Vienna Convention on Consular Relations, done

Apr. 24, 1963, 21 U.S.T. 77, 100-01, 596 U.N.T.S. 261, 292-94. All

50 States have foreign nationals (and alleged foreign nationals)

incarcerated in their state prison systems. According to a recent

government report, more than 57,000 foreign nationals were

incarcerated in State prisons as of mid-2004. Paige M. Harrison &

Allen. J. Beck, Prison and Jail Inmates at Midyear 2004 (Table 6),

http://www.ojp.usdoj.gov/bjs/abstract/pjim04.htm (last revised

April 24, 2005).

This case will determine whether the Vienna Convention creates

individual rights enforceable in American Courts and, if so, whether

those rights displace well-established criminal-procedure doctrines

applied across the country. Because the resolution of the issues

presented in this case may profoundly affect every State criminal-

justice system, the States have a substantial interest in opposing

Petitioners’ attempt to create judicially-enforceable rights and

implied procedural requirements in the Vienna Convention.

SUMMARY OF THE ARGUMENT

The Vienna Convention does not create individual rights:

The Vienna Convention, by its own terms, defines the reciprocal

rights and obligations of nations in the exchange of consuls. It

expressly disavows the creation of individual rights. Although

some incidental language in Article 36 of the Convention might be

read, in isolation, as discussing individual rights, it is insufficient

to overcome the presumption that a treaty does not create individual

rights absent a clear and unambiguous statement to that effect. This

presumption prevents the courts from inadvertently expanding

treaties beyond the President’s and the Senate’s intent in entering

into and ratifying them. In this case, the Senate ratified the

Convention under the belief that it would not change the existing

2

laws of the United States. This confirms that the Convention

should not be read to change United States domestic law.

The Vienna Convention Does Not Impose Judicial

Requirements on the United States: The Petitioners and their

amici argue that the Vienna Convention enacted two procedural

requirements as federal law: abrogation of the procedural-default

doctrine and adoption of an exclusionary rule regarding consular-

notification failures. The text of the Convention does not establish

those requirements.

Like the state courts, the judiciaries of other nations have

universally refused to apply Article 36 of the Vienna Convention in

the way the Petitioners seek. The Court should not interpret the

holdings of the International Court of Justice or the amicus briefs

filed in this case by foreign sovereigns as an indication that the

treaty is so applied abroad. “Litigation” before the ICJ is part of a

political and diplomatic—not a _legal—dispute-resolution

mechanism that ultimately results in political negotiation at the

level of the U.N. Security Council. The foreign nations that accord

additional procedural rights based on consular notification do so

based on their own domestic statutes or common-law authority, not

based on the Vienna Convention as such.

The Court Should Maintain its Reluctance to Interfere in

the States’ Criminal-Procedure Systems Absent a Violation of

the U.S. Constitution: Petitioners ask the Court to change U.S. law

despite the Senate’s understanding that the Vienna Convention

would not change United States domestic law. Petitioners and

amici argue that changing the States’ criminal-procedure laws will

serve as amore effective way to implement the Convention and will

benefit the United States diplomatically. | These policy

justifications, even if true, are political, rather than legal. Such

policy balancing is best left to the political branches and to the

States, which retain authority to administer their own criminal-

justice systems.

3

State-law procedural default is an adequate and independent

state-law ground for refusing to reconsider criminal convictions,

and the Court has consistently declined to interfere with the

doctrine, even allowing it as a bar to claims brought under the

federal Constitution. Petitioners ask the Court to interfere with

state criminal procedure without providing basis in the federal

Constitution for doing so. The Court should not acountenance such

interference, especially given the Court’s longstanding recognition

of the importance of the procedural-default doctrine to the efficient

and fair functioning of the criminal-justice system.

ARGUMENT

Petitioners frame this case as a dispute between the States of

Oregon and Virginia and the federal government regarding the

implementation of Article 36 of the Vienna Convention. There is

no such dispute—the States fully recognize their obligation to

comply with the United States’ treaty obligations.

Indeed, on this issue, the States and the United States are of one

accord.

The impediment to implementing the Vienna Convention as

Petitioners request is not resistance from the States. Instead, the

Court’s treaty-interpretation precedent, limited as it is by the

strictures of the constitutional framework of government, forecloses

that result. And rightly so, given that other nations do not consider

the Vienna Convention, by itself, to form a basis for invalidating

criminal convictions.

I. THE VIENNA CONVENTION DOES NOT CONFER INDIVIDUAL

RIGHTS.

The Vienna Convention on Consular Relations is a 79-article,

multilateral treaty negotiated in 1963 and ratified by the United

States in 1969. The treaty governs “the establishment of consular

relations, [and] defin{es] a consulate’s functions in a receiving

4

state.” United States v. Alvarado-Torres, 45 F.Supp.2d 986, 988

(S.D. Cal. 1999). Article 36(1)(b) of the Convention states that the

authorities of a “receiving state” shall, without delay, inform any

detained foreign national of his right to have the consular post of

the “sending state” notified of his detention. Article 36(1)(a)

provides that consular officers shall be free to communicate with

nationals of the sending state, and Article 36(1)(c) gives consular

officers the right to visit and correspond with the detained foreign

national and to arrange for his legal representation. /d

Both Petitioners argue that Article 36 creates individual rights

and that it constitutes binding federal law by virtue of the fact that

the Vienna Convention is a self-executing treaty. Sanchez-Llamas

Merits Br. at 11-14; Bustillo Merits Br. at 16-20. This reasoning is

inconsistent with the text of the Convention itself—the preamble to

the Vienna Convention expressly disavows the creation of

individual rights, and the Convention’s ratification history

demonstrates that the Senate did not believe that the Convention

_ would change existing United States law.

A. The Text of the Vienna Convention Does Not Create

Individual Rights.

Treaty provisions are construed according to the traditional

rules of statutory construction, and the Court looks first to the plain

language. United States v. Alvarez-Machain, 504 U.S. 655, 663

(1992) (“In construing a treaty, as in construing a statute, we first

look to its terms to determine its meaning.”). As the Court did when

construing Article 36 in Breard v. Greene, 523 U.S. 371, 376

(1998) (per curiam), it should begin with the Convention’s text.

The text of the Convention is clear. Neither Article 36 nor the other

provisions of Chapter II of the Convention were intended to create

individual rights.

5 .

1. The text of the Convention does not require that

violations of consular notification be remedied in

criminal proceedings.

The Vienna Convention is based on the premise that “an

international convention on consular relations, privileges and

immunities would ... contribute to the development of friendly

relations among nations, irrespective of their differing

constitutional and social systems.” VIENNA CONVENTION,

preamble. The Convention expressly provides,

“the purpose of [the] privileges and immunities [discussed

in the Convention] is not to benefit individuals but to ensure

the efficient performance of functions by consular posts on

behalf of their respective States.” /d. (emphasis added).'

Chapter II of the Convention, in which Article 36 appears, is

entitled “Facilities, Privileges and Immunities Relating to Consular

Posts, Career Consular Officers and Other Members of a Consular

Post.” Its focus is the prerogatives of the “sending State,” not

individual foreign nationals. Article 36, in turn, is in Section I of

Chapter Il—a Section itself titled “Facilities, Privileges and

Immunities Relating to a Consular Post.” Notably, Article 36 is not

found in Section II, which deals with facilities, privileges, and

3. The preamble to a treaty is negotiated language that generally

sets forth the purpose of the contracting parties in choosing particular

words to implement specific obligations. See Olympic Airways v. Husain,

540 U.S. 644, 660-61 (2004) (looking to the Warsaw Convention’s

preamble to determine the purpose of the contracting parties); E/ A/

Israeli Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 156-57 (1999) (same);

Alvarez-Machain, 504 U.S., at 672-73 (relying on preamble to extradition

treaty with Mexico to determine intent of contracting states).

6

immunities of individuals, ie., consular officers and other

“members of the consular post.”

In keeping with the overall purpose of the Convention, Article

36 begins with the express statement that the provisions of

paragraph (1), including the requirements of consular notification

at issue in this case, are established “with a view to facilitating the

exercise of consular functions relating to nationals of the sending

State.” Paragraph 2 of Article 36 provides that “rights referred to in

paragraph 1” of the Article “shall be exercised in conformity with

the laws and regulations of the receiving State,” so long as those

laws “enable full effect to be given” to the purpose of the rights

accorded by Article 36—those purposes being specified as

“facilitating the exercise of consular functions” as described in

paragraph 1. When Article 36 is violated, the aggrieved party is the

sending State, because it is the sending State whose consular

operations have been hindered by the violation.

Although Article 36 may provide some collateral benefits to

individual foreign nationals, its overriding purpose is to facilitate

the performance of consular functions by consular officials. Given

that the Convention’s preamble expressly states that the purpose of

the treaty is not to create individual rights, the Court should reject

2. Bustillo erroneously argues that the preamble cannot control

interpretation of Article 36 because, as a result, the preamble would

prevent Section II from conferring rights on consular personnel. Bustillo

Merits Br. at. 33 & n.9. Bustillo ignores the fact that Section II does not

create rights for foreign citizens generally, but only to consular

personnel, as an element of their official duties on behalf of the sending

State. E.g., Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.

682, 693-94 (1976) (recognizing that the scope of consular privileges and

rights is determined by the capacity in which an individual represents a

foreign government, and is not held by the individual as such).

7

Petitioners’ invitation to discover such rights in Article 36 — which

would directly contravene the negotiated meaning of the treaty.”

2. Article 36 does not overcome the presumption that

treaties do not create individual rights.

The term “self executing” usually is applied to any treaty that

according to its terms takes effect upon ratification and requires no

separate implementing statute. See RESTATEMENT (THIRD) OF THE

FOREIGN RELATIONS LAW OF THE UNITED STATES §111(4) (1987).

It is beyond cavil that the Vienna Convention is self-executing in

the sense that no implementing legislation was required.

However, whether the terms of a treaty provide for private

rights that are enforceable in domestic courts is a wholly separate

question. See id, at §111, cmt. h; see also United States v. Li, 206

F.3d 56, 68 (CA1 2000) (Selya & Boudin, JJ., concurring) (“That

courts sometimes discuss [self-execution in the sense of need for

implementing legislation and self-execution as creating individual

rights] together ... does not detract from their distinctiveness. At

3. Notably, the ICJ’s judgment in which it declared that Article 36

creates an individual right analyzes the Article in isolation, without

mentioning the preamble. See LaGrand(F.R.G. v.U S.), 2001 I.C.J. 466

(June 27), 967. Vice President Shi’s concurrence sheds some light on the

IC)’s strategic drafting of paragraph 67, which Vice President Shi

criticized for ignoring the preamble’s plain text. See LaGrand, Separate

Opinion of Vice-President Shi, 95. Yet, although he believed that “the

view that Article 36, paragraph 1, specifically subparagraph (b), creates

individual rights is at the very least a questionable one,” id. 416, Vice

President Shi nonetheless voted for the portion of the judgment requiring

“review and reconsideration of the conviction and sentence,” see

LaGrand, §\27(7), on the explicit ground that because the case involved

the death penalty “every possible measure should be taken to prevent

injustice or an error in conviction or sentencing,” Separate Opinion of

Vice-President Shi, 17.

8

bottom, the questions remain separate.”). Petitioners’ contention

that the Vienna Convention is “self-executing” in the sense that it

creates individual rights enforceable in American judicial

proceedings, either directly or by virtue of the ICJ’s opinions on the

issue, is simply incorrect. In light of the principles governing the

interpretation of treaties, neither the text nor the history of the

Vienna Convention supports Petitioners’ claims.

The general rule is that “[i]nternational agreements, even those

directly benefitting private persons, generally do not create private

rights or provide for a private cause of action in domestic courts.”

RESTATEMENT (THIRD) §907, cmt. a. This rule derives from the

longstanding principle that “[a] treaty is primarily a compact

between independent nations,” and that it “depends for the

enforcement of its provisions on the interest and the honor of the

governments which are parties to it.” The Head Money Cases, 112

U.S. 580, 598 (1884).

Because treaty violations have traditionally been resolved by

“international negotiations and reclamations,” the Court has.

concluded that “[i]t is obvious that with all this the judicial courts

have nothing to do and can give no redress.” Jd. This principle has

consistently been applied by U.S. courts. See, e.g., Argentine

Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442

(1989) (holding that the Geneva Convention on the High Seas and

the Pan-American Maritime Neutrality Convention, “only set forth

substantive rules of conduct and state that compensation shall be

paid for certain wrongs. They do not create private rights of

action.”).*

4. See also Goldstar v. United States, 967 F.2d 965, 968 (CA4 1992)

(“International treaties are not presumed to create rights that are privately

enforceable.”); United States v. Jimenez-Nava, 243 F.3d 192, 195 (CAS

2001) (“[Treaties] do not generally create rights that are enforceable in

the courts.”); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808

9

Moreover, settled principles of treaty construction obligate the

Court to avoid the constitutional conflict that would be occasioned

by Petitioners’ proposed interpretation. Statutes are “to be so

construed so as to avoid serious doubt of their constitutionality.”

Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 749 (1961). The

same canon of constitutional avoidance has always applied to

treaties as well. See Murray v. the Schooner Charming Betsy, 6

U.S. (2 Cranch) 64 (1804). Thus, ifit is “fairly possible” to construe

a Statute or treaty without contravening the Constitution, the Court

should do so. Commodity Futures Trading Comm'n v. Schor, 478

U.S. 833, 841 (1986). The presumption against individual rights is

a means of avoiding constitutional conflict—although both treaties

and laws are “the law of the land” under the Supremacy Clause,

U.S. CONST. art. VI, cl.2, treaties and laws are not automatically the

same thing. Treaties fall within the Executive branch’s foreign-

affairs power, subject to Senate approval, id., art. II, §2, while laws

fall within Congress’s legislative authority, subject to the

Executive’s veto, id, art. 1, §7. The grants of power are not

coextensive. A low standard for determining that a treaty creates

individual rights would necessarily lead to potential constitutional

(CADC 1984) (Bork, J., concurring) (“Treaties of the United States,

though the law of the land, do not generally create rights that are

privately enforceable in the courts.”); Li, 206 F.3d, at 66 (Selya &

Boudin, JJ., concurring) (“The background presumption that treaties do

not create privately enforceable rights . . . [is an] extremely important

principle. .. . It is surprisingly difficult to accept the idea that, in most

instances, either the Executive Branch or the ratifying Senate imagined

that it was empowering federal courts to involve themselves in

enforcement on behalf of private parties who might be advantaged or

disadvantaged by particular readings of particular treaty provisions.”);

accord Garza v. Lappin, 253 F.3d 918, 924 (CA7 2001) (judgment of

Inter-American Court did not bar imposition of death penalty because the

treaty relied upon could not be construed to create individual

rights); United States v. Davis, 767 F.2d 1025, 1030 (CA2 1985).

10

infirmities, because it would muddy the source of the federal

government’s authority.

A presumption against the creation of individual rights in

treaties avoids potential constitutional infirmities by eliminating

most instances in which a treaty could be construed to conflict with

existing laws. The Court’s cases draw a bright-line distinction. Ifa

treaty either establishes a legal standard for particular type of claim

or expressly states that it confers rights on foreign nationals, the

Court applies the treaty in domestic courts. Otherwise, it does not.

This test preserves the distinction between legislation and treaties;

the Senate has the opportunity to evaluate the treaty in terms of any

potential resulting change in the law.

For this reason, even treaties that directly benefit private parties

are not necessarily construed to create private rights or provide for

a private cause of action in domestic courts. For example, in

United States v. Gengler, 510 F.2d 62, 67 (CA2 1975), the court

held that “even where a treaty provides certain benefits for nationals

of a particular state—such as fishing rights—it is traditionally held

that any rights arising out of such provisions are, under

international law, those of the state and ... individual rights are only

derivative through states.” Likewise, in United States v. Rosenthal,

793 F.2d 1214, 1232 (CA11 1986), the court found no merit in the

defendants’ argument that the actions of the United States violated

its extradition treaty with Colombia because “[u)nder international

law it is the contracting foreign government that has the right to

complain about a violation.”

A treaty can create individual rights, but only when the text of

the treaty does so unambiguously. As recognized in The Head

Money Cases, a treaty establishing particular “rights of property by

11

descent or inheritance,” gives those obligations the force of law.

112 US., at 598.°

Both Petitioners provide iists of cases that, they argue,

demonstrate that the Court always, without exception, applies

treaties to protect private litigants. Sanchez-Llamas Merits Br. at

28-29; Bustillo Merits Br. at 18 & n.3. The referenced cases do not

support Petitioners’ arguments. Instead, they illustrate the specific

and narrow circumstances in which the Court has held that treaties

provide judicially-enforceable individual rights. Each treaty either

(1) contains an express statement to that effect or (2) expressly

adopts a specific legal standard governing cases involving foreign

nationals.

Thus, for example, in Kolovrat v. Oregon, the treaty stated that

“Serbian subjects in the United States[] shall enjoy the rights”

granted to most-favored nations. 366 U.S. 187, 192 n.6 (1961)

(emphasis added). The sole case cited by the Petitioners involving

a multilateral convention specifically governed the reciprocal rights

of citizens regarding trademarks. Bacardi Corp. v. Domenech, 311

U.S. 150, 169 (1940) (discussing section titled “Equality of Citizens

and Aliens as to Trade Mark and Commercial Protection”). These

5. The sole case cited by Petitioners involving the privileges of a

foreign consulate in fact rejected Petitioners’ position. In Wildenuhus's

Case, 120 U.S. | (1887), the Belgian Consul sought to bring a habeas

corpus claim regarding a suspect in a murder committed aboard a Beigian

vessel anchored in a United States port. In holding that the consul held

a right under the bilateral consular-relations treaty between the United

States and Belgium, the Court recognized that the treaty “settle[d] and

define[d] the rights and duties of the contracting parties”, id. at 12, and

not those of the individual criminal suspect.

12

treaties create individual rights because they contain express

language to that effect.°

Other treaties expressly establish legal standards. Thus, the two

extradition cases Petitioners cite, United States v. Rauscher, 119

U.S. 407 (1886), and Johnson v. Browne , 205 U.S. 309, 320-22

(1907), recognized that the rule of “specialty” governs extradition

treaties as a matter of international custom and therefore informs

the courts’ application of extradition law. That custom has now

been adopted by statute. See United States v. Alvarez-Machain, 504

U.S. 655, 667 (1992). Likewise, treaties governing seizure of

foreign ships expressly create legal standards that apply in

admiralty.’ Cook v. United States, 288 U.S. 102, 111-12 (1933);

6. The most important early cases involve the United States’ treaty

obligations to protect the property rights of British citizens following

independence. The United States had undertaken to guarantee those

rights as a condition of peace with Great Britain; accordingly state laws

predating adoption of the Constitution could not trump the bargain

regarding property rights. See Fairfax's Devisee v. Hunter's Lessee, \1

U.S. (7 Cranch) 603, 627 (1812) (“British subjects ... shall continue to

hold [their lands]”); Higgonson v. Mein, 8 U.S. (4 Cranch) 415, 419

(1808) (“all persons who have any interest in confiscated lands ... shall

meet with no lawful impediment in the prosecution of their just rights”);

Hopkirk v. Bell, 7 U.S. (3 Cranch) 103, 110 (1801) (same); Ware v.

Hylton, 3 U.S. (3 Dall.) 199, 258-59 (1796).

7. The remaining treaty provisions on which the Court has

recognized a treaty right were bilateral treaties of amity and commerce

specifically designed to create individual rights for the citizens of foreign

countries, including Germany, Clark v. Allen, 331 U.S. 503, 514-15

(1947); Denmark, Nielsen v. Johnson, 279 U.S. 47, 51 (1929); Japan,

Jordan v. Tashiro, 278 U.S. 123, 127 (1928), Asakura v. City of Seattle,

265 U.S. 332, 340 (1924); China, Cheung Sum Shee v. Nagle, 268 U.S.

336, 345; Chew Heong v. United States, 112 U.S. 536, 542 (1884);

France, de Geofroy v. Riggs, 133 U.S. 258, 266 (1890); Chirac v.

13

United States v. Schooner Peggy, 5 US. (ft Cranch) 103, 110

(1801). -

Article 36 neither contains language expressly creating an

individual right of consular notification, nor does it establish a legal

standard for evaluating such lawsuits. It does not, therefore, create

a judicially-enforceable individual right under the Court’s

precedent.

B. The State Department Has Consistently Construed the

Convention Not to Create Individual Rights.

The State Department has consistently maintained that the

Vienna Convention does not create individual rights. The United

States’ historic interpretation of the Vienna Convention should be

accorded substantial deference. See, e.g., El Al Israeli Airlines v.

Tseng, 525 U.S. 155, 168 (1999) (“Respect is ordinarily due the

reasonable views of the Executive Branch concerning the meaning

of an international treaty.”); Sumitomo Shoji Am., Inc. v. Avagliano,

457 U.S. 176, 184-85 (1982) (“Although not conclusive, the

meaning attributed to treaty provisions by the Government agencies

charged with their negotiation and enforcement is entitled to great

weight.”).

In United States v. Li, the First Circuit specifically posed the

question whether the Vienna Convention creates individual rights,

and the State Department advised the court that the Convention is

a treaty that establishes state-to-state rights and obligations, not

individual rights. See 206 F.3d, at 63 (citing “Department of State

Answers to the Questions Posed By the First Circuit in United

Chirac's Lessee, 15 U.S. (2 Wheat.) 259, 270 (1817); Switzerland,

Hauenstein v. Lynham, 100 U.S. 483, 584-86 (1879); and the United

Kingdom, Hughes v. Edwards, 22 U.S. (9 Wheat.) 489, 496 (1824); Soc’y

for Propagation of Gospel v. New-Haven, 21 U.S. (8 Wheat.) 464 (1823)

(same); Craig v. Radford, 16 U.S. (3 Wheat.) 594 (1818) (same).

14

States v. Nai Fook Li,” hereinafter “State Department Li Answers,”

at A-1, A-3). The State Department specifically addressed the

remedies for violations of the consular notification procedures:

“The [only] remedies for failures of consular notification under the

[Vienna Convention] are diplomatic, political, or exist between

states under international law.” Jd. The United States reiterated this

history in its amicus curiae brief supporting the State of Texas in

Medellin v. Dretke, No. 04-5928, Brief for the United States as

Amicus Curiae Supporting Respondent, at 22-23.

As Li noted, the State Department’s position on the Convention

may be traced to the treaty’s inception. The court first pointed to a

1970 letter sent by a State Department legal adviser to the

governors of the fifty States shortly after the Convention’s

ratification, advising that the Department did “not believe that the

Vienna Convention will require significant departures from the

existing practice within the United States.” /d., at 64. In 1989, a

letter from a Department legal adviser informed a foreign national

being held in an American prison that “[w]hile the U.S. authorities

are required to comply with the obligations [of Article 36], failure

to do so would have no effect on [his] conviction or incarceration.”

Id.

Li also pointed to the State Department’s written submission to

the Inter-American Court of Human Rights in 1998, when Mexico

sought an advisory opinion on the availability of criminal remedies

for failures of consular notification—the precise issue raised in this

case. The Department’s submission unequivocally stated 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.” /d.

(emphasis added). The Li court thus correctly concluded that “the

Department has denied the availability of criminal remedies for

failures of consular notification.” /d.

15

C. The History of the Convention Does Not Demonstrate an

Intent to Create Individual Rights in Article 36.

The plain text of the treaty disclaims individual rights. Even if

there were any ambiguity, it should be resolved against finding such

rights. When a treaty’s terms are considered ambiguous, the Court

typically relies upon nontextual sources “such as a treaty’s

ratification history and its subsequent operation.” United States v.

Stuart, 489 U.S. 353, 366 (1989). Petitioners turn to the ratification

history and travaux préparatoires of the Convention to suggest that

Article 36 was intended to create individual rights. See Sanchez-

Llamas Merits Br. at 23-26; Bustillo Merits Br. at 24-29. But the

passing references to the negotiation and ratification of the Vienna ~

Convention contained in Petitioners’ account do not tell the whole

story—the United States ratified the treaty under the express

condition that it would effect no change in domestic law.

Senate Committee on Foreign Relations Chairman William J.

Fulbright’s report to the Senate highlighted the treaty’s preamble

and then listed five factors that helped secure the Committee’s

approval. The very first such factor was the Committee’s belief that

the “Vienna Convention does not change or affect present U.S.

laws or practice.” S. Exec. Doc. E app., 91-1, at 46 (1969)

(emphasis added). That statement of Senate intent would be

incomprehensible if the treaty were in fact understood to create

individual rights that could abrogate U.S. statutes and the

procedural-default rule in all 50 States, across the criminal-justice

system.

Moreover, despite casual statements suggesting the contrary, the

State Department’s only formal answer to the question whether the

Convention created individual rights was altogether negative. A

State Department legal adviser submitted written testimony on the

Convention to the Senate Committee on Foreign Relations on

October 7, 1969. The statement indicated that the “Vienna ...

Convention does not have the effect of overcoming Federal or State

16

laws beyond the scope long authorized in existing consular

conventions.” /d. (emphasis added). The Department’s testimony

also emphasized the Vienna Convention’s preamble, which states

explicitly that the treaty’s purpose is “not to benefit individuals.” S.

Exec. Doc. E app., 91-1, at 46 (1969).

Nor do the travaux préparatoires include more than a passing

reference to consular notification being a right held by a citizen.

Certainly, the travaux include no express indication of an intent to

expressly create rights. The passing references to the notification

right as belonging to the individual are, therefore, the most

convenient mechanism for referring to the reciprocal obligation

between nations. See Li, 206 F.3d, at 66 (Selya & Boudin, JJ.,

concurring).* Moreover, the Statements from the travaux on which

the Petitioners rely must be read in context. Article 36 was framed

in terms of an individual’s choice to contact his national consulate

in order to ensure that defectors and captured military officers

would not be required to contact their own governments against

their wills. See 1 U.N. Conference on Consular Relations: Official

Records, at 38 § 21; 83-84 99 73 & 74, U.N. Doc.Al Conf.25/16

U.N. Sales No. 63.X.2 (1963). The language was thus drafted as it

8. See Li, 206 F.3d, at 66 (Selya & Boudin, JJ., concurring):

“It is common ground that the [Convention is an]

agreement[ | among sovereign States. Nothing in [its} text

explicitly provides for judicial enforcement of [ ] consular

access provisions at the behest of private litigants. Of

course, there are references in the treaties to a ‘right’ of

access, but these references are easily explainable. The

contracting States are granting each other rights, and telling

future detainees that they have a ‘right’ to communicate

with their consul is a means of implementing the treaty

obligations as between States. Any other way of phrasing

the promise . . . would be both artificial and awkward.”

(emphasis in original).

17

is in order to limit the scope of the consular nations’ rights over its

citizens. Nothing in the travaux indicates an intent on the part of

the parties to the treaty to adopt consular notification as an element

of their domestic criminal law.

D. Fulfilling Treaty Obligations Under Article 36 is the

Task of the Political Branches.

As the Court has long recognized:

“the very nature of executive decisions as to foreign policy

is political, not judicial. Such decisions are wholly confided

by our Constitution to the political departments of the

government, Executive and Legislative. They are delicate,

complex, and involve large elements of prophecy. They are

and should be undertaken only by those directly responsible

to the people whose welfare they advance or imperil. They

are decisions of a kind for which the Judiciary has neither

aptitude, facilities, nor responsibility and long have been

held to belong in the domain of political power not subject

to judicial intrusion or inquiry.” Chicago & Southern

Airlines v. Waterman SS Corp., 333 U.S. 103, 111-12

(1948). “8

A nation considering itself harmed by congressional enactment

following a treaty may “present its complaint to the executive head

of the government.... The courts can afford no redress. Whether the

complaining nation has just cause of complaint, or our country was

justified in its legislation, are not matters for judicial cognizance.”

Whitney v. Robertson, 124 U.S. 190, 194 (1888).

Nor is the judiciary well suited to determine how the United

States should act under a treaty, because the United States has

discretion to disregard treaty obligations: the President has the

power to waive treaties, Chariton v. Kelly, 229 U.S. 447, 475-76

(1913), and Congress may enact inconsistent legislation, Whitney,

124U.S., at 194. She Executive Branch is best-suited to foresee the

18

implications of its actions regarding treaties because the State

Department maintains diplomatic contacts throughout the world.

The choice of the best manner in which to fulfill a treaty—or, in the

alternative, whether to negotiate for a lesser obligation or even to

withdraw from an obligation entirely—is by necessity “delicate”

and “complex.” As a prudential matter, the courts should not

interfere in the process.

Il. THE COURT SHOULD Not ApoptT THE ICJ’s

INTERPRETATION OF ARTICLE 36, WHICH IS CONTRARY TO

THE ACTUAL PRACTICE OF PARTIES TO THE VIENNA

CONVENTION. :

Petitioners do not rely on the decisions of the International

Court of Justice in Avena and Other Mexican Nationals (Mexico v.

U.S.), 2004 I.C.J. 12 (Mar. 31) and La Grand (F.R.G. v. U.S.),

2001 1.C.J. 466 (June 27), as direct authority, although Sanchez-

Llamas argues that those decisions deserve deference in the interest

of “uniform treaty interpretation.” Sanchez-Llamas Merits Br. at

26-28; Bustillo Merits Br. at 30-31. Many of Petitioners’ amici

argue that the Court should defer to the ICJ’s interpretation of

Article 36. E.g., E.U. Amicus Br., at 3-7.°

9. Bustillo’s statement that 63 nations have filed briefs in support of

his position is somewhat misleading to the extent it includes al! of the

members of the European Union. Bustillo Merits Br. at 29. The E.U. is

not a party to the Vienna Convention and only three of its member

nations, Liechtenstein, Norway, and Switzerland, were willing to join the

E.U.’s amicus brief in their capacity as signatories to the Convention.

E.U. Amicus Br. at 2. The only reported judicial opinion from an E.U.

member country that is also a party to the Convention, Germany, has in

fact refused to provide “review and reconsideration” of a criminal

conviction based on Article 36. See BGH 5 StR 1 16/0 decided on 7 Nov.

2001, available at http://www.bundesgerichtshof.de (Germany).

19

These arguments are all based on an untenable premise—that

the ICJ’s interpretation of Article 36 represents the uniform

application of the treaty. It does not, and neither Petitioners nor

their amici mention a single instance in which another country’s

courts have revisited a criminal conviction based on a defendant’s

consular-notification rights absent a domestic statute requiring that

result. Nor do other nations apply the ICJ’s decisions in their

domestic courts as a general matter.

A. The ICJ’s Interpretation of Article 36 is Contrary to

Actual International Practice.

In LaGrand, the ICJ determined that Article 36 creates

individual rights. 2001 1.C.J, at 493, 9973 & 74. And in Avena, the

ICJ determined that Article 36 mandates “review and

reconsideration” of criminal convictions. 2004 1.C.J., at 35-36, 440.

At the time LaGrand was decided in 2001, according to the State

Department, no country in the world had interpreted the Vienna

Convention to create individual rights or ordered reconsideration of

a criminal conviction based on violation of Article 36.'° Thus,

LaGrand itself rejected the prevailing, uniform interpretation of the

Convention.

10. After a comprehensive investigation into international practice,

the State Department “found no indication that other states party have

remedied such failures by granting remedies in the context of their

criminal justice proceedings.” State Department Li Answers at A-8, A-9

(commenting that no party had produced a single example of a nation

providing a judicial remedy for Article 36 violations); see also Avena,

Counter-Memorial of the United States, at 288-90 (Mexico failed to

provide a single example of a state practice of reconsidering convictions

based on consular-notification); Canada v. VanBergen, 261 A.R. 387,

390 (2000) (rejecting legal challenge to extradition from Canada based

on Article 36); R. v. Abbrederis, [1981] 36 A.L.R. 109 (Australia),

122-23; Re Yater, “Judicial Decisions,” 1976 Ital. Y.B. Int’! Law, at

336-39, Vol. Il (decided by Italy’s Court of Cassation Feb. 19, 1973).

20

Although some courts have stated in passing that Article 36

creates an “individual right,” international practice has not changed

since the Avena decision. At least two courts have refused to apply

the ICJ’s judgment as a basis for revisiting a conviction—including

a court in Germany, the party that brought LaGrand in the first

place. See BGH 5 StR 116/0 decided on 7 Nov. 2001, available at

http://www. bundesgerichtshof.de (Germany); see also R. v. Partak,

[2-1] 160 C.C.C. (3d) 553, 570 (Canada). There is thus a

divergence between the diplomatic positions of foreign countries

and the effect given to the Vienna Convention in actual judicial

decisions. ‘

Sanchez-Llamas suggests that the Canadian courts have

recognized an individual right that applies in criminal proceedings

by citing Khadr v. Canada, 123 C.R.R. (2d) 7, 23 (Fed. Ct. 2004)

(Canada). Sanchez-Llamas Merits Br. at 27-28. Khadr was a suit

by the parents of a Canadian national attempting to force the

Canadian government to provide consular services to a Canadian

citizen, who had been detained outside of Canada, under a statute

prescribing the obligations of Canadian consuls. /d. at 19. The

Khadr court used the Vienna Convention to inform its analysis of

a Canadian statute, not as a basis for its decision. /d. at 26."'

11. The countries that have applied the Vienna Convention to criminal

convictions have done so based on internal statutes mandating that result.

See NACDL/LCA Br. at 16-20 (discussing Part 1(C), Section 23P, of the

Crimes Act 1914). As the NACDL’s brief recognizes, the countries that

apply an exclusionary rule based on the Vienna Convention all do so by

statute, not based on the treaty itself. /d. at 17 n.11. None has applied

Avena’s ‘ olding to revisit a criminal conviction. Nor have the United

Kingdom’s courts—which govern criminal procedure under their

separate common-law authority rather than by application of a written

constitution—applied an exclusionary rule based on Article 36. See id.,

at 20. Rather, two U.K. trial courts have excluded evidence under their

general common-law power to do so. R. v. Bassil and Mouffareg (1990)

21

In short, the Court should not interpret the amicus briefs filed

by various foreign countries as a statement of those countries actual

practice. Neither Petitioners nor Petitioners’ amici cite even a

single instance in which a foreign court has directly applied the

Vienna Convention to collaterally attack or void a criminal

conviction. E.g., Mexico Amicus Br., at 7-30 (discussing in theory

the application of Article 36 in U.S. courts, but not discussing

Mexico’s actual domestic practice). Indeed, Mexico’s position in

this case marks a reversal of its longstanding position that Article

36 violations should not be the basis for reversing criminal

convictions."

28 July, Acton Crown Court HHJ Sich (reported in Legal Action 23,

December 1990); R. Van Axel and Wezer (1991) 31 May Snaresbrook

Crown Court, HHJ Sich (reported in Legal Action 12, September 1991).

To the extent that courts in the United States retain such common-law

power given the tendency to adopt statutory regimes governing criminal

procedure, plenary authority to adopt such exceptions rests with the

States and not with the Court, save for rights conferred by the federal

constitution. See infra, part IIIA.

12. Mexico’s litigation posture in Avena was a reversal of its

traditional position on the subject. The 1976 Treaty on the Execution of

Penal Sentences, Nov. 25, 1976, Mex.- U.S., 28 U.S.T. 739, at Mexico’s

explicit insistence, provides for enforcement of Mexican convictions with

no mention of Mexico’s Article 36 violations. Mexico, in recognizing its

own poor record in complying with Article 36, stated that “we cannot....

expect that irregularities will not occasionally be committed.” Letter from

Alfonso Garcia Robles, Foreign Minister of Mexico, to Henry A.

Kissinger, Secretary of State of the United States of America (Mar. 25,

1976). Mexico’s federal law governing consular-notification provides no

judicial remedy for individuals, only a consular-notification requirement.

LEYES Y CODIGOS DE MEXICO, C.F.P.P., art. 128.IV (1995) (“Si se

tratare de un extranjero, la detencion se comunicara de inmediato a la

representacion diplomatica o consular que corresponda.” (“In the case of

an alien, the fact that he has been placed in custody shall be reported

22

B. The ICJ’s decisions do not provide a “rule of decision.”

Amici ICJ Experts go one step further than the litigants and

argue that Avena and LaGrand create a “rule of decision” that this

Court has no power to disregard. ICJ Experts Amicus Br. at 20.

They argue that the Optional Protocol to the Vienna Convention

transforms the ICJ’s judgments into part of the treaty, and that as a

result the ICJ’s decision is incorporated into United States law by

the Supremacy Clause. However, the decisions of international

tribunals are not themselves “treaties”, nor do they fall within the

other two categories of federal law—the “Constitution” and “Laws

of the United States.” U.S. Const. art. VI, cl.2. The ICJ’s

decisions, by themselves, cannot create an individually enforceable

right that requires reconsideration of a criminal conviction.

1. The only potential legal basis for deferring to the

ICJ’s decisions was the Optional Protocol, from

which the United States has withdrawn.

The only potential basis for the Experts’ position is the Optional

Protocol to the Vienna Convention, a provision that refers disputes

over the treaty to the ICJ. See OPTIONAL PROTOCOL TO THE

VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING THE

COMPULSORY SETTLEMENT OF DISPUTES, Apr. 24, 1963, 21 U.S.T.

77 (138a). By a letter deposited with the U.N. Secretary General on

March 7, 2005, the United States has withdrawn from the Optional

Protocol, and is no longer subject to its provisions. See

http://travel.state.gov/news/news_2155.html (last visited January

24, 2006). The Experts merely assert their opinion that the United

States’ withdrawal from the Protocol was incorrect, without citing

any authority. ICJ Experts Amicus Br. at 19-20.

And even if the United States remained a party to the Optional

Protocol, it would be inappropriate under the Constitution for the

immediately to the appropriate diplomatic or consular mission.”)).

23

Court to recognize as binding the decision of a judicial body not

recognized in the Constitution. The “judicial Power” discussed by

the Constitution encompasses the duty to exercise the final say in

the interpretation of federal law. See Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 777 (1803) (“It is emphatically the province and

duty of the judicial department to say what the law-is.”). Under the

Experts’ interpretation, as a result of signing the Vienna

Convention, the “judicial Power” has been placed not in “one

supreme Court,” but instead divided between this Court and the

ICJ. To recognize the ICJ’s judgments as binding would, pursuant

to the actions of only the President and the Senate, effect a

fundamental change in the constitutional structure.

Nothing in the President’s foreign-affairs and treaty power

allows a reordering of the judicial functions of the Article III courts

that would otherwise be barred by the Constitution. The Cherokee

Tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1870) (“[A] treaty cannot

change the Constitution.”). The Optional Protocol, even when it

remained in effect, could not have transformed the ICJ’s decisions

into federal law. That result would encroach on the judicial system

of the United States, and would elevate the power of the ICJ far

beyond that provided by its statute and the U.N. Charter.

2. TheICJ’s jurisdiction is limited to disputes between

consenting nations, and its decisions are enforceable

only through the Security Council.

The ICJ’s decisions in Avena and LaGrand should not be

applied by this Court in construing the Vienna Convention. The

U.N. Charter and the ICJ’s statute together delineate the scope of

the ICJ’s authority. The ICJ can hear only disputes between nations,

and then only when those nations have consented to the ICJ’s

jurisdiction. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

art. 34, 111,59 Stat. 1055 (1945). ICJ decisions have binding force

only between the parties, which must be sovereign nations, and only

with respect to the particular dispute, id. art. 59. Indeed, the ICJ

24

statute specifies that, in all other instances, decisions of the court

have “no binding force.” Jd

As a result, the ICJ cannot declare individual rights. Its

decisions have no res judicata effect on disputes between individual

persons. See, e.g., Socobel v. the Greek State, 30 Avril 1950, 18

I.L.R. 3. ICJ judgments are “final and without appeal,” but there is

no rule regarding the application of those decisions before other

tribunals. [CJ STATUTE art. 60.

Nor does the ICJ have direct enforcement powers. Instead, the

Security Council enforces ICJ judgments in its discretion. Article

94 of the U.N. Charter explicitly provides that all disputes regarding

ICJ decisions are to be referred to the U.N. Security Council. U.N.

CHARTER art. 94. Thus, while there exists in principle an obligation

to respect the ICJ’s judgments, ultimate enforcement power is given

not to the I[CJ—which in effect has authority merely to make

declarations that include the scope of damages resulting from a

breach of international law—but to the Security Council which

exercises the political and institutional authority to enforce the

ICJ’s decisions.

Significantly, no nation has ever inferred from Article 94(1) an

obligation to enforce ICJ decisions as domestic law.'* Indeed, this

13. Amici IC) Experts sole argument on this point is that the

limitation does not apply to ICJ decisions because the ICJ itself has

chosen to ignore it. ICJ Experts’ Amicus ®r. at 25-26.

14. Although many foreign cases are unreported, the only case the

amici States’ research has uncovered where a domestic court arguably

applied an ICJ decision was in French-controlled Morocco (a legal entity

no longer extant). See Administration des Habous v. Deal, 19 1.L.R. 342

(Morocco, Ct. App. Rabat. 1952)—a decision later rejected by a tribunal

in French-controlled Tunisia, see Mackay Radio & Tel. Co. v. Lal-la

Fatma Bent si Moahamed el Khadar et al., 21 1.L.R. 136 (Tangier, Ct.

25

interpretation of the enforceability of the ICJ’s decisions in U.S.

courts was expressly rejected byt he D.C. Circuit in Comm. of

United States Citizens Living in Nicaragua v. Reagan, 859 F.2d

929, 938 (CADC 1988) (Mikva, J.) (quoting Diggs, 555 F.2d, at

851 (CADC 1976)): “[T]he words of Article 94 ‘do not by their

terms confer rights upon individual citizens; they call upon

governments to take certain action.’”” The ICJ Experts implicitly

recognize this in their brief—rather than offer a legal basis for their

argument, they rely upon their assessment of the United States’

“economic and political interests.” ICJ Experts Amicus Br. at 17-19

& n.30.

The ICJ’s statute confirms that its decisions have not created

rights judicially enforceable by individuals. The ICJ’s decisions

have binding force only between the parties and with respect to

their particular case. See IC) STATUTE art. 59. Only Nations may be

parties in cases before the ICJ, id, at art. 34, 91. The ICJ’s

decisions cannot, by its statute, apply in litigation regarding

individuals. See Comm. of United States Citizens Living in

Nicaragua, 859 F.2d, at 938 (U.N. Charter’s provisions “make clear

that the purpose of establishing the ICJ was to resolve disputes

between national governments. We find in these clauses no intent

to vest citizens who reside in a U.N. member nation with authority

to enforce an ICJ decision against their own government.”); see

also Socobel, 18 1.L.R. 3 (ICJ judgments cannot have res judicata

effect in domestic courts because there is no identity of parties); Jn

re Investigation of World Arrangements with Relation to the

Production, Transportation, Refining and Distribution of

Petroleum, 13 F.R.D. 280, 290-91 (D.D.C. 1952) (refusing to give

controlling effect to ICJ ruling).

App. Int'l Trib. 1954),

26

C. The Court Should Not Defer to the ICJ Out of Comity.

The dissent in Medellin v. Dretke suggested that an issue facing

the Court was whether to accord judicial comity to the ICJ’s

decisions. 125 S.Ct. 2088, 2092-93 (2005) (per curiam). There is

no basis for extending judicial comity’to the ICJ? comity is not

automatically extended to foreign tribunals qua tribunals; instead,

it is a voluntary observance of the right of foreign nations to

regulate their own affairs. See Hilton v. Guyot, 159 U.S. 113, 166

(1895). Applying comity is “a recognition which one nation extends

within its own territory to the legislative, executive, or judicial acts

of another.” Somportex Lid. v. Philadephia Chewing Gum Corp.,

453 F.2d 435, 440 (CA3 1971). More specifically, “judicial

comity” is a doctrine whereby judges decline to exercise

jurisdiction over matters more appropriately adjudged elsewhere,

e.g., The Moses Taylor, 71 U.S. (4 Wall.) 411, 423 (1866), as

distinguished from “prescriptive comity,” the respect sovereign

nations afford each other by limiting the reach of their laws, e.g., F.

Hoffman-La Roche v. Empagram S.A., 124 S.Ct. 2359, 2366-67

(2004); see also J. STORY, COMMENTARIES ON THE CONFLICT OF

LAWS §38 (1834) (distinguishing between the “comity of the

courts” and the “comity of nations,” and defining the latter as “the

true found.tion and extent of the obligation of the laws of one

nation within the territories of another”).

Neither form of comity should apply to the ICJ, which does not

represent the political choices of a sovereign, but instead constitutes

a dispute-resolution mechanism which ultimately culminates in a

political—rather than a legal—resolution of diplomatic disputes.

Judicial comity is simply inapposite to this case, because the

interpretation of treaties is in the Court’s own jurisdiction. A treaty

is federal law. This Court has full competence to construe it

according to its terms—and need not look to a foreign tribunal for

guidance. See, e.g., El Ai Israeli Airlines, 525 U.S., at 167-68

(construing rule of decision provided in Warsaw Convention); cf.

° 27

Hagen v. Utah, 510 U.S. 399, 422-23 & n.1 (1994). The situation

is completely different from extending comity to a foreign

sovereign’s application of its own law in its own territory. When

“judicial comity” is applied to another nation’s laws, the decision

is made on the basis of equality between sovereign nations.

Republic of Austria v. Altmann, 541 U.S. 677, 688-89 (2004)

(discussing Schooner Exchange v. McFaddon, \\ U.S. (7 Cranch)

116, 145-46 (1812)).

Additionally, although the ICJ’s work often concerns treaties,

it is tied to no political decision-making process—and to none of

the accompanying political responsibilities—that would ensure that

these “experts” had been given legitimate authority to impose their

conclusions. See Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2761

(2004) (the Court’s authority to recognize legal standards arising in

international law is limited to objectively established standards

because the Court otherwise has no authority to adopt policy); cf.

id., at 2771-72 (Scalia, J. dissenting) (arguing that this standard is

too lenient because it still gives courts authority to create law).

Ill. THE VIENNA CONVENTION DOES NOT PRECLUDE THE

APPLICATION OF VIRGINIA’S STATUTORY PROCEDURAL-

DEFAULT REQUIREMENTS.

If the Court were to adopt a rule that Article 36 of the Vienna

Convention both applies to criminal proceedings and is not subject

to procedural default, it would be adopting a new rule of law. Cf

Medellin, 125 S.Ct., at 2091 (whether Article 36 bars procedural-

default argument may constitute a “new rule”).

Recognizing an exception to the procedural-default doctrine

would be inconsistent with this Court’s traditional recognition that

it does not sit in review of the States’ regulation of their own

criminal-justice systems. The Court should not consider the policy

arguments made by Petitioners and their amici—to do so would be

to turn on its head the relationship between the federal and state

28

courts regarding criminal procedure, and the only basis for doing so

would be a treaty that the Executive Branch believes should not be

so applied. e

A. Procedural Default Is an Adequate and Independent

State Ground.

Procedural default is an adequate and independent ground

support for the Virginia Supreme Court’s judgment, Wainwright v.

Sykes, 433 U.S. 72 (1977). The Court has already resolved that

issue with regard to the Vienna Convention in Breard, holding that

the procedural rules of the forum State, including rules on

procedural default, govern implementation of the Vienna

Convention. 523 U.S., at 375. The Court reasoned that this result

was consistent with the background presumption of international

law stating that the procedural rules of the forum State govern

implementation of a treaty absent “a clear and express statement to

the contrary.” /d. Thus, Article 36 rights, if they exist, “shall be

exercised in conformity with the laws and regulations of the

receiving State,” and Article 36(2) reinforced, rather than replaced,

the procedural-default rule.

Bustillo relies on Article 36(2)’s requirement that laws of the

forum state “must enable full effect to be given to the purposes for

which the rights accorded under this Article are intended.” Bustillo

Merits Br. at 36-38. But this reading presumes that the more

general “full effect clause” overrides Article 36’s more specific

provision that the Convention will be applied “in conformity with”

existing United States law. It cannot be that the more general

provision creates a “clear and express statement” that the United

States intended to change its own domestic laws by signing a treaty

stating that the requirements of the Convention were to be enforced

in compliance with existing law.

29

B. The Court Should Not Consider the Policy

Arguments Advanced by Petitioners and their Amici.

The Court holds “no supervisory power over state judicial

proceedings and may intervene only to correct wrongs of

constitutional dimension.” Smith v. Philips, 455 U.S. 209, 221

(1982). Nonetheless, Bustillo argues that the Court should preclude

the application of procedural default on policy grounds; in short,

suggesting that the Court change U.S. law because it will make the

treaty function more efficiently and because the Court should

follow the ICJ’s “guidance” regarding the interpretation of Article

36. Bustillo Merits Br. at 37-50. The Court should not consider

these policy arguments, vecause they are within the Executive

Branch’s discretion.

- Appending additional procedural requirements onto Article 36

would violate the Court’s own precedent regarding procedural

default. Procedural default prevents the subsequent enforcement of

even constitutional rights, which can likewise be defaulted. See

Yist v. Nunnemaker, 501 U.S. 797, 801 (1991) (procedural default

applies to Miranda claims); Sykes, 434 U.S. at 87 (procedural

default applies to voluntariness claims). The application of that rule

to constitutiona! claims does not meanrthat the constitution is not

given full effect under United States law; the possibility that

procedural default will be applied to Vienna Convention claims,

likewise, cannot be sufficient to demonstrate that Article 36 is not

being given full effect.

To rule for Petitioners, the Court would have to disregard its

Own opinions regarding the procedural-default doctrine in the

context of federal habeas claims. The procedural-default rule is

designed in part to eliminate the tactical benefit that might be

derived from the stratagem of “sandbagging” by a criminal

defendant. Sykes, 433 U.S., at 89. Rejecting the prior test of Fay v.

Noia, 372 U.S. 391 (1963), which allowed federal habeas review

for any claim absent a knowing and deliberate waiver of the claim,

30

the Court emphasized the importance of applying the “cause” and

“prejudice” standard in cases involving the application of the

contemporaneous-objection rule. Sykes, 433 U.S., at 89.

~ A broad rule preventing procedural default of Vienna

Convention claims would be even broader than the now-repudiated

standard in Fay v. Noia. Even in the case of “deliberate bypass,”

Bustillo argues that Vienna Conventions claims should remain

available. See Bustillo Merits Br. at 36-38. Indeed, in Bustillo’s

State habeas proceedings, Virginia cited the testimony of Bustillo’s

defense counsel, who stated that he affirmatively chose not to

involve the consulate in Bustillo’s case. J.A., at 235. The choice

not to invoke the Vienna Convention is the source of the current

dispute. As a general matter, Vienna Convention claims would

present particularly likely candidates for sandbagging, to the

significant detriment of the judicial process. For defendants from

nations whose consulates provide little assistance to nationals

facing criminal prosecution, the upside to raising the claim is

nominal. But, if the claim cannot be waived, defendants could go

to verdict, hope for acquittal, and, if convicted, assert the claim and

get yet another bite at the apple. Moreover, if Petitioners prevail,

the result would call into question the convictions and sentences of

potentially tens of thousands of defendants, capital and non-capital,

throughout all 50 States.

CONCLUSION

The Court should affirm the judgments of the Oregon and

Virginia Supreme Courts.

Respectfully submitted,

January 31, 2006

3]

GREG ABBOTT

Attorney General of Texas

BARRY R. MCBEE

First Assistant Attorney General

DON CLEMMER

Deputy Attorney General for

Criminal Justice

R. TED CRUZ

Solicitor General

Counsel of Record

KRISTOFER S. MONSON

Assistant Solicitor General

Office of the Attorney General

P.O. Box 12548 (MC-059)

Austin, Texas 78711-2548

(512) 936-1700

COUNSEL FOR AMICI CURIAE

be) e) FILED

No. 04-1056 #.05-51__ | JAN 2.9 2905

OFFICE OF THE CLERK

IN THE SUPPEME COURT, U.S.

Supreme Court of the United States

MOISES SANCHEZ-LLAMAS ,

Petitioner,

v.

STA TB-OF OREGON,

Respondent, -

MARIO A. BUSTILLO,

Petitioner,

Vz

GENE M. JOHNSON, DIRECTOR

OF THE VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE ALLIANCE DEFENSE FUND, AS

AMICUS CURIAE, SUPPORTING RESPONDENTS

WILLIAM WAGNER

Counsel of Record

BRYAN BENBOW

THOMAS M.COOLEY LAW SCHOOL

300 South Capitol, Lansing, MI 48933

; (517) 371-5140

BENJAMIN W. BULL, Chief Counsel

ALLIANCE DEFENSE FUND

15333 N. Pima Road, Ste. 165

Scottsdale, AZ 85260

TABLE OF CONTENTS

ee a incctittinictiinnininnmmnmie ITI

ee A OE wiiccnnnnninctnnieniinsnniinmsnscmntiiitbiatent l

ey CUI vniccinisschinsncenininnninininisininunniediniatiieduiidan ]

SUMMARY OF ARGUMENT.........s0seseeesseseeseeeeees ee 2

IIIT sci ieiecidathsasieslais nd taheidanatiedailaiaiiabididhan dibtiendiiiiiade 4

THIS COURT SHOULD Not RELY UPON JUDGMENTS OF THE

INTERNATIONAL COURT OF JUSTICE .........0ccccccccceccccceeee eee 4

A. THE INTERNATIONAL COURT OF JUSTICE (ICJ)

DECISIONS IN LAGRANDE AND AVENA ARE

NOT ENTITLED TO RECOGNITION AND

Pg eS a

1. The ICJ lacked authority under the

Optional Protocol to discern individual

rights judicially enforceable in American

2. The ICJ Incorrectly Concluded that the —

Treaty Creates Individual Rights Judicially

Enforceable in American Courts ..............0606. 10

B. AUTHORITATIVELY ADOPTING THE ICJ JUDGMENT

CREATES AN IRRECONCILABLE CONFLICT WITH

EXISTING FEDERAL STATUTES AND WELL

ESTABLISHED CONSTITUTIONAL DOCTRINES OF

Sn III cccccnccvacnietndeduecctetimenncmele

II

C. DEFERRING TO THE ICJ DECISIONS FOR THE RULE

OF DECISION IN THIS CASE SURRENDERS AMERICAN

SOVEREIGNTY AND HAS POTENTIAL TO CREATE A

CONSTITUTIONAL CRISIS OF EPIC PROPORTIONS....... 19

EAD ne STARS ee REIT Pe Ce: 25

It

TABLE OF AUTHORITIES

Cases:

Bell v. Commonwealth, 563 S.E.2d 695 (Va.

Boos v. Barry, 485 U.S. 312 (1988)...........ceceeee eens 23

Breard v. Greene, 523 U.S. 371 (1998)............... 5,15,16

Committee of United States Citizens Living in

Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir.

Commodity Futures Trading Comm'n v. Schor, 478

iicinniidetdadddibbbibitadexcendéeniainaiosen 17

Edye v. Robertson (Head Money Cases), 112 U.S. 580

TTT edheehibinscstnselids seiasediapitiaiesidiilapuniiinsibiihaaitiniasitieidenddinitnaneiaiiesél 9

Lawrence v. Texas, 539 U.S. 558 (2003)..........cccce00e0e22

Poe v. Ullman, 367 U.S. 497 (1961)........-.ccecceeeeeeceeeeees 24

Reid v. Covert, 354 U.S. 1 (1957)..........c.cceeeeeeees 16,23

Societe Nationale Industrielle Aerospatiale v. United

States Dist. Court for S. Dist. of lowa, 482 U.S. 522

State v. Martinez-Rodriguez, 33 P.3d 267 (N.M.

ee isccaisd daalcceeeiattanesidiGiedisceisietdadalditaditiialpdinabdeinnentined biases

IV

State v. Navarro, 659 N.W.2d 487 (Wis. Ct. App.

BITE. «.0004000080055u sisssensseniiehanenniniaeiniaanenn 13

Sun Oil Co. v. Wortman, 486 U.S. 717 {1988)....... vie

United States v. Ademaj, 170 F.3d 58 (1st Cir. 1999) ..16

United States v. Alvarez-Machain, 504 U.S. 655, 663

CRSFIIED coccconcesscasonssonsntensescstsessidedeinsineseaiaisianinaannaaae 10

- United States v. Chanthadara, 230 F.3d 1237 (10th

Cle, SII. «<x «cx sscicennsentstctesneiainaananaansaaaaneee 15

United States v. Cordoba-Mosquera, 212 F.3d 1194

11. BGR Car. DRDED. «00.» secssscsccsseonsneniedunaneaniiiaiuammeanaaaa 16

United States v. Curtiss-Wright, 299 U.S. 304

United States v. Duarte-Acero, 296 F.3d 1277 (11th Cir.

BOGRD. « 0.0<000000000sseesnsenissteeumntiieisimaiaaaaeen 12

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

BBE). «01 000000000ccccescesesstenesnestaniennssennennanaaaannn 13

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

COs. BRBED. 20 0000060.000sccosscescsoneseiecinnnniinnanaanaanenne 13

United States v. Li, 206 F.3d 56 oe Cir. — a

IR, ccs sctiiensisniastunscimanameaas sandea my a

V

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

aii ana ieteeananes 15

United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002) ...15

United States v. Pagan, 196 F.3d 884 (7th

IT i cstecsienistcinasuvicndeionsstatsenstenenansnomaniasetesessenesesecens 16

United States v. Stuart, 489 U.S. 353 (1989)...........004. 13

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486

EINE cnninctesentcshavsocsscovsdecrsceeecocecosocces 15

Wainwright v. Sykes, 433 U.S. 72 (1977).......... 2000015

Whitney v. Robertson, 124 U.S. 190 (1888).............. 16

Constitution, statutes, and regulations:

SINE, SHER GED Miccccdsccedcccccscccscoccececens 14,18

Anti-Terrorism and Effective Death Penalty Act of

1996, Pub.L. 104-132, Apr. 24, 1996, 110 Stat.

1214 (28 U.S.C. §2254(a),(e)(2)( 1994) oo. cccccceeeeee 16

Treaties, Conventions, and Protocols:

Optional Protocol to the Vienna Convention on

Consular Relations Concerning the Compulsory

Settlement of Disputes, opened for signature

April 24, 1963, art. I, 21 U.S.T. 325, 596

Te |

VI

Statute of the International Court of Justice, 59 Stat.

Vienna Convention on Consular Relations, opened

for signature April 24, 1963, art. 36(2), 21 U.S.T.

Xf kt every 4, 10,11,12,15

U.N. Charter art. 94, 59 Stat. 1051 ........ccceceeseeesenees 7,8

Foreign Cases:

Avena and Other Mexican Nationals (Mexico v. United

States of America) 2004 L.C.J. 1 (March

il nssnpertcopennsenicthctitnsmsnatnmeteninapiiteenidmiaiinnasnaibeidaniti 5

LaGrand Case (F.R.G. v. United States of America),

re ln SEG CE BR cccenescsnersenccnistnninnninnnininnsans 5

Other Authorities:

Letter from Condoleezza Rice, Secretary of State, to

Kofi A. Annan, Secretary-General of the United

Nations (March 7, 2005) (notifying the Secretary-

General of the United States withdrawal from the

te I inierntcicnccnnsinsiciiienstiimanianaiendninainn 9

George W. Bush, Memorandum for the Attorney

ee 9

115 Cong. Rec. 30,997 (1969) ...............ccce eee e eee 4

Sen. Doc. Exec. E, 91" Cong. 1 Sess. (1969)......... 12

Vol

U.S. Br. as Amicus Curiae at 34, Medellin v. Dretke,

125 S.Ct. 2088 (2005) (No. 04-5928)..............0000 7,13

U.S. Brief at 18-23, Republic of Paraguay v.

Gilmore, 523 U.S. 1068 (1998) (No. 97-1390)........ 13

Roger P. Alford, Federal Courts, International

Tribunals, and the Continuum of Deference: A

Postscript on Lawrence v. Texas, 44 Va. J. Int’! L.

Fee is cccnnsssnsenneneticatesnennennnnenes 22,24

Roger P. Alford, Misusing International Sources

to Interpret the Constitution, 98 Am. J. Int’! L. 57

Donald E. Childress, III; Using Comparative

Constitutional Law to Resolve Domestic Federal

Questions, 53 Duke L.J. 193 (2003).................4. 21

Mary Ann Glendon, Abortion and Divorce in

I Ce nitittindecsdbininidnttorindeiniddeaia 24

Harold H. Koh, Paying “Decent Respect” to

World Opinion on the Death Penalty, 35 U.C.

SE tip GI IED cncccecscccseccscdanssesncsns 23

John Leo, Creeping Transnationalism, U.S. News

& World Report, July 21, 2003.................2...000 21

Sandra Day O'Connor, Federalism of Free Nations,

in International Law Decisions in National Courts

(Thomas M. Franck & Gregory H. Fox eds.,

Vill

Richard Posner, No Thanks, We Already Have Our

Own Laws, Aug. 2004 Legal Affairs 40............ 21,22

Robert C. Post, Forward: Fashioning the Legal

Constitution: Culture, Courts,andLaw,117 —.

Cee Ne TE isinsinctisccarpeiticitisiinianniaamainadeia 22

Michael D. Ramsey, /nternational Materials and

Domestic Rights: Reflections on Atkins and

Lawrence, 98 Am. J. Int’! L. 69 (2004)............. 22,23 -

The Federalist No. 2 (John Jay)

Es Get: UIE cnecesccuntndonsadeencesacssouneel 21

The Federalist No. 37 (James Madison)

eis GIG a HEU cienivesnnenadsndesacescenenicnnent 20

The Federalist No. 43 (James Madison)

KR Re eee eree 21

l

N AMICUS

This amicus curiae brief is filed on behalf of the

Alliance Defense Fund.’

The ALLIANCE DEFENSE FUND (“ADF”) is a

not-for-profit legal alliance organization. The ADF has 820

affiliated allied attorneys. Also allied with the ADF are

numerous public interest law firms and organizations. In

addition to engaging in direct litigation, the ADF provides

litigation funding and training to organizations and attorneys

protecting religious civil liberties.

ADF has advocated for rights of Americans under the

United States Constitution in numerous significant cases

throughout the United States, having been directly or

indirectly involved in over 900 cases, including 42 cases

before the United States Supreme Court.

The ADF works to preserve -and protect religious

liberty. It has particular knowledge helpful to the Court in

this case concerning the social and legal impact of the

authoritative use of international law.

CONSENT TO FILE BRIEF

Petitioners and Respondents, through their counsel of

record, consented to the filing of all Briefs Amicus Curiae in

this case. Their confirmations of global consent are on file

with the Clerk of the Court.

' In accordance with Supreme Court Rule 37(6), amicus certifies that this

brief was authored entirely by Counsel of Record for amicus and that no

part of the brief was authored by any attorney for a party. No person or

entity other than amicus curiae or its counsel provided a monetary

contribution to the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

This Court, in resolving the instant issues, should not

use International Court of Justice (ICJ) judgments as

authoritative interpretative sources.

The ICJ lacked jurisdictional authority to discern

individual] rights judicially enforceable in American courts.

In addition to lacking authority to render its judgment, a

substantial amount of legal authority suggests the ICJ

incorrectly concluded the Treaty creates individual rights

enforceable in American Courts. Furthermore,

authoritatively adopting the ICJ judgments will create an

irreconcilable conflict with existing federal statutes and well-

established constitutional doctrines of criminal procedure.

By asking this Court to authoritatively use the ICJ

judgments in interpreting the Treaty, Petitioners seek to

- legitimize holdings of that tribunal as the rule of decision for

American courts. Given that the politically~ accountable

branches of the American government hold a very different

understanding of the Treaty’s terms than the ICJ, heeding

Petitioner’s request is an especially inappropriate course for

this Court.

To impose the ICJ’s interpretation upon the United

States subordinates and alters the United States Constitution.

It deprives the Executive Branch of its right, under the-U.N,

Charter, to exercise discretion in choosing how to respond to

a judgment of the ICJ. It also deprives Congress of its

constitutional authority to legislate. By denying the

politically accountable branches of this Nation the ability to

carry out their respective roles under the Constitution, it

surrenders sovereignty of the United States to an unelected

3

international body. Neither the United States Constitution,

nor the natural law of nations on which it was founded,

permit such an extraordinary result.

Amicus curiae, therefore, urges this Court, not to rely

upon the LaGrand and Avena decisions as authoritative

interpretative sources.