Amicus Curiae Brief — Sanchez-Llamas v. Oregon

- 4

ARGUMENT

Amicus curiae discuss why this Court should not use

International Court of Justice (ICJ) judgments as

authoritative interpretative sources in resolving the instant

issues.

THis COURT SHOULD Not RELY UPON JUDGMENTS OF THE

INTERNATIONAL COURT OF JUSTICE

Petitioners suggest it is proper for this Court, in

resolving whether the Vienna Convention creates judicially

enforceable individual rights, to rely on judgments rendered

by the ICJ. (Pet’r. Br. Bustillo i, 29-31; Sanchez-Llamas 1,

26-28). Petitioners are wrong.

A. THE INTERNATIONAL CouRT OF JUSTICE (ICJ) DECISIONS

IN LaGrande AND Avena ARE NOoT ENTITLED TO

RECOGNITION AND ARE NOT CONTROLLING

The United Nations adopted the Vienna Convention

on Consular Relations and Optional Protocols on Apmil 24,

1963. Vienna Convention on Consular Relations, opened for

signature April 24, 1963, art. 36(2), 21 U.S.T. 77, 396

U.N.T.S. 261 [hereinafter Vienna Convention or “Treaty”].

The United States Senate ratified the Vienna Convention and

the Optional Protocol concerning Compulsory Settlement of

Disputes on October 22, 1969. 115 Cong. Rec. 30,997

(1969).

? Optional Protocol to the Vienna Convention on Consular Relations

Concerning the Compulsory Settlement of Disputes, opened for

signature April 24, 1963, art. 1, 21 U.S.T. 325, 596 U.N.T.S. 487,

[hereinafter Optional Protocol].

5

This Court has stated that it “should give respectful

consideration to the interpretation of an international treaty

rendered by an international court with jurisdiction to

interpret {the treaty]” (emphasis added). Breard v. Green,

523 U.S. 371, 375 (1998). For the reasons discussed in this

brief, however, the ICJ lacked jurisdictional authority to

discern individual rights judicially enforceable in American

courts. This Court should not, therefore, authoritatively use

the LaGrand or Avena ICJ judgments as authoritative

interpretative sources in resolving the instant issues.

In the LaGrand and Avena cases, signatory nations to

the Vienna Convention brought actions against the United

States in the International Court of Justice. Relying on the

Optional Protocol for jurisdiction, the ICJ entered judgments

ultimately holding that: (1) the Vienna Convention

establishes individual rights for foreign nationals; (2) these

individual rights are to be judicially enforced in American

courts; and (3) American constitutional and statutory

procedural default rules cannot bar judicial review of a

foreign national’s Vienna Convention Claim in American

courts. See Avena and Other Mexican Nationals (Mex. v.

U.S.) 2004 LC.J. 1 (Mar. 31); LaGrand Case (F.R.G. v. ~

U.S.), 2001 I.C.J. 466 (June 27).

The ICJ in Avena made clear it intended its judgment

to broadly apply as the rule of decision in all cases involving

similarly situated foreign nationals in the United States.

Avena at para. 151. The ICJ’s position, and Petitioners’

desire for this Court to adopt it in the instant case, must hot

stand. 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.

, 6

1. The ICJ lacked authority under the Optional

Protocol to discern individual rights judicially

enforceable in American courts.

Petitioners contend the Optional Protocol to the

Vienna Convention provided the ICJ with jurisdiction to

discern individual rights and prescribe that such rights be

judicially enforceable in American courts. (Pet’r. Br. Bustillo

31; Sanchez-Llamas 26-27). The Optional Protocol actually

states much less, merely providing that “{d]isputes arising

out of the interpretation or application of the Convention

shall lie within the compulsory jurisdiction of the

International Court of Justice and may accordingly be

brought before the Court by an application made by any

party to the dispute being a Party to the present Protocol.”

(Optional Protocol).

Article 34 of the ICJ Statute provides that “[o]nly

states may be parties in cases before the court.” Statute of

the International Court of Justice, 59 Stat. 1055 (emphasis

added). Article 59 of the ICJ Statute further indicates that

“the decision of the court has no binding force except

between the parties afidnrespect to that particular case.” Jd.

(emphasis added). Thus, the ICJ has no power to announce

the existence of individual rights, and its judgments can have

no effect on a dispute involving an individual.

Moreover, the text of the Optional Protocol negates

Petitioners’ view that the Optional Protocol empowered the

ICJ to create judicially enforceable individual rights. In this

regard, the text in Article I of the Optional Protocol only

permits a signatory State to participate in a dispute before the

ICJ.. (Optional Protocol). This jurisdictional limitation

expressly precludes individuals from asserting rights of their

own, or in any way participating in a case before the ICJ.

The ICJ certainly, therefore, lacked authority under the

Oe ieee,

7

Protocol to divine individual rights from the shadows of the

Vienna Convention during such a proceeding.

Moreover, nothing credible in the record suggests

that the President’s negotiation and the Senate’s ratification

of the Optional Protocol included surrendering the

sovereignty of the United States to the ICJ. To be sure, as

long as the United States remained a party to the Protocol,

the politically accountable branches agreed to permit the ICJ

to hear “[dJisputes arising out of the interpretation or

application of the Convention.” /d. Nothing in this plain

language, however, authorized the ICJ to create individual

rights under the treaty, or prescribe that such nghts be

judicially enforceable in American courts. Likewise, nothing

in the plain language of the Optional Protocol authorized the

ICJ to broadly extend this ruling to all consular notification

cases in the United States.

Furthermore,” Article 94 of the United Nations

Charter provides the basis of a signatory State’s obligation to

comply with a judgment of the ICJ — not the Optional

Protocol. U.N. Charter art. 94, para. 1, 59 Stat. 1051. In this

regard Article 94 provides that an individual member of the

United Nations must “undertake[] to comply with the

decision of the International Court of Justice in any case to

which it is a party.” Jd. The position of the United States is

that the words, undertakes to comply

{do} not constitute an acknowledgment that an

ICJ decision will have immediate legal effect

in the courts of U.N. members. Instead, it

constitutes a commitment on the part of the

U.N. members to take future action through

their political branches to comply with an ICJ

decision. U.S. Br. as Amicus Curiae at 34,

8

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

(No. 04-5928).

Thus, the source for this Nation’s obligation to

comply with an ICJ judgment is the U.N. Charter; and under

that Charter, the fulfillment of Article 36 Vienna Convention

obligations rests with the politically accountable branches of

the United States, not the judiciary.

Since the U.N. Charter by design lacks specificity as

to how a signatory State should comply with a judgment by

the ICJ, it is fair to infer that the Charter vested the

politically accountable branches of a signatory State with

discretion in deciding how the nation will comply.

Moreover, under the U.N. Charter, enforcement of a

signatory nation’s obligation to comply falls to the U.N.

Security Council, not the ICJ. U.N. Charter Art. 94, para. 2.

Unilateral dictates by the ICJ requiring compliance through

immediate judicial review by a signatory State, deprives the

politically accountable branches of this Nation of the right to

exercise discretion pursuant to the U.N. Charter. Indeed, as

far as your Amici is aware, no existing signatory State

understands Article 94 of the Charter as imposing a

requirement of compliance through the signatory nation’s

judiciary, independent of the politically accountable

branches of government. See Committee of United States

Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937

(D.C. Cir. 1988) (holding that Article 94 of the U.N. Charter

“does not confer rights on private individuals’). This is

because Article 94 of the U.N. Charter envisaged situations

where the politically accountable branches of a signatory

State might exercise discretion not to comply with a

judgment of the ICJ; in such a situation seeking remedial

satisfaction in the UN Security Council is the only

alternative. U.N. Charter Art. 94, para. 2

9

Thus, the ICJ’s judgments calling for enforcement of

a Treaty obligation, via immediate judicial review in the

signatory state, are acutely inconsistent with the enforcement

process in the U.N. Charter. Indeed, the ICJ’s position

unacceptably renders Article 94 of the U.N. Charter

meaningless.

Enforcement of treaty provisions does not fall within

the purview of international tribunals. This is because “{a]

treaty is primarily a compact between independent nations.”

Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598

(1884). Thus, a treaty depends “on the interest and honor of

the governments which are parties to it” for enforcement. /d.

In the Avena case, the President chose to comply with the

ICJ’s judgment “by having State courts give effect to the

decision in accordance with general principles of comity in

cases filed by the 51 Mexican nationals addressed in that

decision.” George W. Bush, Memorandum for the Attorney

General (Feb. 28, 2005). The President grounded his

compliance not in any authority of the ICJ, but in the

executive power of Article II of the United States

Constitution. /d.

At the same time the President complied with the

judgment in the Avena case, the President chose to protect

the Nation from future judgments based on Avena’s faulty

legal principles. The President accomplished this purpose by

withdrawing the United States from the Optiona] Protocol.

See 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 Optional Protocol)

(hereinafter U.S. Letter of Rescission].

The President’s rescission from the Optional Protocol

powerfully demonstrates Executive Branch intent not to

10

surrender sovereignty to an international tribunal (i.e., by

subjecting itself to erroneous judgments improperly rendered

without authority).

2. The ICJ Incorrectly Concluded that the Treaty

Creates Individual Rights Judicially Enforceable in

American Courts

In addition to lacking authority to render its

judgment, significant support exists suggesting the ICJ was

incorrect in concluding that the Treaty creates individual

rights judicially enforceable in American Courts. To

ascertain whether a treaty confers a right on individuals, this

Court looks to the text of a treaty, just as it would with a

statute. U.S. v. Alvarez-Machain, 504 U.S. 655, 663 (1992).

Thus, a court construing treaty provisions must do so in

accordance with established rules of statutory construction.

Id. In this regard, this Court looks to the plain language of

the treaty. /d.

It is certainly questionable whether the ICJ, in

reaching its conclusions, evaluated the plain language of the

Treaty. If the purpose of the Treaty is, as the ICJ suggests,

creation of judicially enforceable individual rights, then key

portions of the Treaty’s text are a meaningless nullity. For

example, the Treaty Preamble plainly states that the purpose

of the privileges and immunities in the Treaty is “(to]

contribute to the development of friendly relations among

nations, irrespective of their differing constitutional and

social systems ... .” Vienna Convention, Preamble. Creating

judicially enforceable individual nghts out the shadows of

the Treaty, has nothing to do with developing friendly

relations among nations with very different systems. Neither

does coercing such judicially enferceable individual rights

on a signatory State. Indeed, the recent rescission of the

United States as a signatory State to the Optional Protocol,

11

demonstrates just how incompatible the ICJ’s position is

with the actual purpose of facilitating diplomatic relations

expressed in the text.

Moreover, the plain language of the Treaty Preamble

goes on to expressly state “the purpose of such privileges

and immunities 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).

Article 36 is located in Chapter II of the Treaty and is

entitled “Facilities, Privileges and Immunities Relating to

Consular Posts.” Vienna Convention, Chapter II.’ Article 36

states the obligations of signatory nations relevant to

Petitioners’ claims in this case. On their face, those

provisions relate to facilitating consular activity in receiving

states and seem, therefore, to confirm the general purpose

stated in the Preamble.’ Significantly, Article 36 resides in

* The title of Chapter II of the Treaty is: “Facilities, Privileges and

Immunities Relating to Consular Posts, Career Consular Officers and

Other members of a Consular Post.” Vienna Convention, Chapter II.

* The pertinent part of Article 36 provides: 1. With a view to facilitating

the exercise of consular functions relating to nationals of the sending

State:

(a) consular officers shall be free to communicate with nationals of the

sending State and to have access to them. Nationals of the sending State

shall ave the same freedom with respect to communication with and

access (o consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State

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

within its consular district, a national of that State is arrested or

committed to prison or to custody pending trial or is detained in any

other manner. Any communication addressed to the consular post by the

person arrested, in prison, Custody or detention shall also be forwarded

by the said authorities without delay. The said authorities shall inform the

person concerned without delay of his mghts under this sub-paragraph;

(c) consular officers shall have the nght to visit a national of the sending

State who is in prison, custody or detention, to converse and correspond

with him and to arrange for his legal representation. They shall also have

12

the section relating to consular posts, and not the section

conceming facilities, privileges and immunities of

individuals (i.e., members of the consular post) (compare

Vienna Convention, Chapter II, sections I and IJ).

The ratification history of the Vienna Convention

likewise corroborates the view that the Treaty did rot create

individual rights judicially enforceable in Amerie courts.

State Department testimony during ratification hearings

provided that the Treaty “does not have the effect of

overcoming federal or State law beyond the scope long

authorized in existing consular conventions.” See U.S. v. Li,

206 F.3d 56, 64 (ist Cir. 2000) (en banc) (referring to State

Department statements).

During the ratification process, the State

Department’s testimony furthered emphasized that the

Treaty’s purpose was “not to benefit individuals.” Sen. Doc

Exec. E, 91" Cong. 1" Sess. (1969) (referring to the Treaty

Preamble). When the Senate Committee on Foreign

Relations transmitted the Treaty to the full Senate for

ratification, the Committee Chair included a short report; this

report indicated that the Committee believed that the Treaty

“does not change or affect present U.S. laws or practice.” /d.

Several federal circuits and state courts have

concluded that the Vienna Convention does not create

individual rights that a defendant may assert in a criminal

proceeding. See, e.g., U.S. v. Duarte-Acero, 296 F.3d 1277,

the right to visit any national of the sending State who is in prison,

custody or detention in their district in pursuance of a judgment.

Nevertheless, consular officers shall refrain from taking action on behalf

of a national who is in prison, custody or deteniion if he expressly

opposes such action. Vienna Convention on Consular Relations and

Optional Protocol on Disputes, Apr. 24, 1963, 21 U.S.T. 77, 596

U.N.T.S. 261 (emphasis added).

13

1281-82 (11th Cir.); U.S. v. De La Pava, 268 F.3d 157, 164-

65 (2d Cir. 2001); U.S. v. Emuegbunam, 268 F.3d 377, 394

(6th Cir. 2001); U.S. v. Jimenez-Nava, 243 F.3d 192, 198

(Sth Cir.); Li, 206 F.3d at 60-66 (1st Cir. 2000) (en banc);

see also Bell v. Commonwealth, 563 S.E.2d 695, 706 (Va.

2002); State v. Navarro, 659 N.W.2d 487, 493 (Wis. Ct.

App. 2002); State v. Martinez-Rodriguez, 33 P.3d 267, 274

(N.M. 2001).

Additionally, the President’s removal of the United

States, as a signatory State to the Optional Protocol, confirms

the Executive Branch view that the Vienna Convention does

not create individual rights judicially enforceable in

American courts. Indeed, the Executive Branch “has never

interpreted the Vienna Convention to give a foreign national

a judicially enforceable right.” U.S. Brief as Amicus Curiae

at 22-23, Medellin v Dretke 125 S.Ct. 2088 (2005) (No. 04-

5928); U.S. Brief at 18-23, Republic of Paraguay v. Gilmore,

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

The State Department, in the Li case, advised that the

Treaty established rights and obligations between signatory

nations, not individual rights. Li, 206 F.3d at 63 (citing to

State Department statements). Other State Department

statements as early as 1970 provided that the Treaty would

not require significant departures from existing practice. /d.

at 64. Finally, the State Department expressly indicated that:

“The [only] remedies for failures of consular notification

under the [Vienna convention] are diplomatic, political, or

exist between states under international law.” Jd. at 63.

Because the President serves as the “sole organ of the federal

government in the field of international relations,” U.S. v.

Curtiss-Wright, 299 U.S. 304, 320 (1936), this Court should

give the Executive Branch’s understanding of the Treaty in

this case “great weight.” U.S. v. Stuart, 489 U.S. 353, 369

(1989).

14

B. AUTHORITATIVELY ADOPTING THE ICJ JUDGMENT

CREATES AN IRRECONCILABLE CONFLICT WITH EXISTING

FEDERAL STATUTES AND WELL ESTABLISHED

CONSTITUTIONAL DOCTRINES OF CRIMINAL PROCEDURE

The ICJ decision creating individual rights, and

prescribing judicial enforcement of such rights in American

courts, failed to consider the federal nature of our Nation’s

constitutional structure. The Constitution’s Supremacy

Clause provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof, and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding.

U.S. Const. art. VI, cl. 2 (emphasis added).

Petitioner Bustillo contends that ICJ’s version of the

Treaty is the Supreme Law of the Land. (Pet’r. Bustillo Brief

at 16-20, 29-31, 45). Citing the Supremacy Clause, he argues

the ICJ’s version of the Treaty (creating judicially

enforceable rights without regard to procedural default rules)

must prevail over a state habeas statute barring claims, if not

first raised in the state trial court. /d. Adopting the [CJ

judgment as the authoritative “rule of decision” in state

habeas cases, however, would create an irreconcilable

conflict with existing federal habeas statutes and firmly fixed

constitutional doctrines of criminal procedure involving

procedural default. It is this irreconcilable conflict to which

we now turn.

15

“{A]bsent a clear and express statement to the

contrary, the procedural rules of the forum State govern the

implementation of the treaty in that State.” Breard, 523 U.S.

at 375 (1998) (citing Sun Oil Co. v. Wortman, 486 U.S. 717,

723 (1988)); Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694, 700 (1988); and Societe Nationale Industrielle

Aerospatiale v. U.S. Dist. Court for §. Dist. of Iowa, 482

U.S. 522, 539 (1987)).

Indeed, “the Vienna Convention itself’ permits and

embodies American state and federal law’s procedural

default principle by expressly providing that Convention

rights “shall be exercised in conformity with the laws and

regulations of the receiving State’” so long as “‘said laws

and regulations . . . enable full effect to be given to the

purposes for which the rights accorded under this Article are

intended.”” Breard, 523 U.S. at 375 (citing and quoting

Vienna Convention, supra, 21 U.S.T. at 101).

In Breard v. Greene, this Court held that the

procedural default rules, developed under the United States

Constitution, accomplish those purposes—and that Vienna

Convention claims, like Constitutional claims, can be

procedurally defaulted. 523 U.S. at 375. The now axiomatic

rule developed by this Court under the United States

Constitution is that claims of error in criminal proceedings

“must first be raised in state court in order to form the basis

for relief in habeas,” whether in capital or other cases.

Breard, 532 U.S. at 375 (citing Wainwright v. Sykes, 433

U.S. 72 (1977)).°

* Several federal and state courts properly relied on Breard to require (as

a prerequisite to obtaining review) a showing of prejudice, such as proof

that the violations impacted trial or deprived a defendant of a

constitutional right. See, e.g., U.S. v. Ortiz, 315 F.3d 873, 878 (8th Cir.

2002); U.S. v. Minjares-Alvarez, 264 F.3d 980, 986-87 (10th Cir. 2001);

US. v. Chanthadara, 230 F.3d 1237, 1256 (10th Cir. 2000); U.S. v.

16

Congress reinforced those procedural default rules

when, subsequent to the ratification of the Treaty, it enacted

the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub.L. 104-132, Apr. 24, 1996, 110 Stat. 1214.

Breard, 532 U.S. at 376. Under this statute, a federal habeas

petitioner, claiming his incarceration violates “treaties of the

United States,” generally is not entitled to an evidentiary

hearing where he “fail(s] to develop the factual basis of [the]

claim in State court proceedings.” 28 U.S.C. § 2254(a),

(e)(2) (1994).

Although Petitioner is correct that treaties are the

Supreme Law of the Land, so, too, is the Constitution itself,

as well as an Act of Congress. Breard, 523 U.S. at 376.

Moreover, this Court has repeatedly held “that an Act of

Congress . . . is on a full parity with a treaty, and that when a

statute which is subsequent in time is inconsistent with a

treaty, the statute to the extent of conflict renders the treaty

null.” /d. at 376 (citing and quoting Reid v. Covert, 354 U.S.

1, 18 (1957) (plurality opinion)) (citing also Whitney v.

Robertson, 124 U.S. 190, 194 (1888) (stating when treaty

and federal statute conflict, “the one last in date will control

the other”)).

While the Vienna Convention was adopted in 1969,

Congress subsequently enacted, and the President signed, the

AEDPA in 1996. A petitioner’s “ability to obtain relief

based on violations of the Vienna Convention is subject to

this subsequently enacted rule, just as any claim arising

under the United States Constitution would be.” Breard, 523

U.S. at 376. No substantial, constitutional basis exists on

which to alter it. See Sandra Day O'Connor, Federalism of

Cordoba-Mosquera, 212 F.3d 1194, 1196 (ith Cir. 2000); U.S. v.

Pagan, 196 F.3d 884, 890 (7th Cir. 1999); U.S. v. Ademaj, 170 F.3d 58,

67-68 (ist Cir. 1999).

17

Free Nations, in International Law Decisions in National

Courts 13, 19 (Thomas M. Franck & Gregory H. Fox eds.,

1996) (citing Commodity Futures Trading Comm'n v. Schor,

478 U.S. 833, 851 (1986) (stating that “the vesting of certain

adjudicatory authority in international tribunals presents a

very significant constitutional question”) (noting “Article III

of our Constitution reserves to federal courts the power to

decide cases and controversies, and the U.S. Congress may

not delegate to another tribunal ‘the essential attributes of

judicial power. . . .””)).

Thus, the United States Constitution and Acts of

Congress (as interpreted by decisions of this Supreme Court

and enacted subsequent to the ratification of the Vienna

Convention) have Supremacy over the contrary decisions of

the ICJ (creating judicially enforceable rights without regard

to procedural default rules).

Because Petitioner Bustillo’s Vienna Convention

claim was procedurally defaulted under a state statute and

not the AEDPA, however, he contends that ICJ’s version of

the Treaty is the Supreme Law of the Land. (Pet’r. Br.

Bustillo at 16-20, 29-31, 45). Bustillo, therefore, argues that

under the Supremacy Clause, the ICJ’s version of the Treaty

must prevail over state procedural default rules (barring

claims if not first raised in state trial court). /d. at 16-20, 29-

31, 45. Bustillo’s proposed resolution therefore, creates an

irreconcilable conflict with the existing Federal AEDPA

statute and the well established constitutional doctrine of

criminal procedure concerning procedural default.°

* Bustillo’s position lacks merit. Although the ICJ judgments come later

in time than the AEDPA, such decisions do not constitute a superseding

subsequent enactment since they merely involve the review by an

international tribunal of a prior enactment. Moreover, while the

Supremacy Clause may include treaties, it nowhere encompasses a mere

18

Petitioners’ briefs either fail to address this problem or

dismiss it as irrelevant. See, e.g., Pet’r Br. Bustillo at 45.

Following Petitioners’ proposed course would

improperly allow views of an international court, lacking

entitlement to recognition, to prevail over those of our own

citizens. Any decision by this Court concerning the

continued constitutional efficacy of state procedural default

rules should, therefore, consider how the rule of decision

rendered will affect similar procedural default rules in future

federal habeas cases.

We also note that implementing the ICJ version of

the Treaty unfairly gives charged foreign nationals more

rights than charged American citizens on habeas. Indeed,

under the ICJ version of the Treaty, nothing prevents a

charged foreign national from strategically holding back any

Vienna Convention claim until after trial (with or without the

effective assistance of competent counsel).

opinion by the ICJ, since such an opinion is not a treaty. U.S. Const. art.

VI, cl.2.

19

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.

The American people trust their courts to faithfully

interpret the expression of the popular American will and

resolve their disputes fairly under the rule of law. It is this

trust of the people, standing alone, that gives legitimacy to a

federal court’s power of judicial review. Thus, in a

constitutional republic dividing power between an elected

executive, an elected legislature, and an independent

judiciary, the continued legitimacy of democratic institutions

rests in part on the unelected judiciary not usurping the

power of politically accountable branches of government.

In this regard, the facts of this case create the

potential for a constitutional crisis of epic proportions. Here,

Petitioners ask an unelected Supreme Court to reject well-

established American constitutional and statutory law as the

rule of decision in this case. In its place, Petitioners suggest

that this Court deem as the Supreme Law of this Land, an

unelected foreign court’s judicial promulgation. Such a

course surrenders the sovereignty of the United States to the

International Court of Justice and interferes with the right of

politically accountable branches to govern under the rule of

law.

Nowhere in the history of our nation has a court of

justice attempted to assume so-much power in American

government as the ICJ did in the La Grand and Avena

judgments. When this Court decides whether to rely on the

judgments of the ICJ here, amicus asks this Court to consider

that no politically accountable President appointed anyone

on that tribunal. Likewise, no politically accountable Senator

voted to confirm anyone on that tribunal. By asking this

20

Court to authoritatively use the ICJ judgments in interpreting

the Treaty in the instant case, Petitioners seek to legitimize it

as the rule of decision for American courts. This approach;

however, extra-constitutionally allows an international body

to shape law binding the American people. In this regard,

Petitioners ask this Court to do nothing less than to surrender

American sovereignty.

The use of foreign authorities strikes at the founding

bargain made by the American people. The American people

at no time subordinated themselves to an international

sovereign on domestic issues and have fought wars to avoid

being subordinated to European or foreign authorities.

Petitioners cite to the Federalist Papers, and other

constitutional history, to justify their desire for this Court to

rely upon the ICJ judgments creating individual rights

judicially enforceable in American courts. See Pet. Br.

Bustillo at 16-17; Sanchez-Llamas at 35-36. Reliance on

foreign precedents, however, actually conflicts with the

structure and history of the U.S. Constitution.

James Madison expressed his wonder at the-

considerable extent to which the Philadelphia Convention

reached agreement on the Constitution with these words: “It

is impossible for the man of pious reflection not to perceive

in it, a finger of that Almighty hand which has been so

frequently and signally extended to our belief in the critical

stages of the revolution.” The Federalist No. 37 at 236-238

(James Madison) (J.E. Cooke ed., 1961). Indeed, the

adoption of the Constitution signified the people’s

acceptance of a moral view of government. The natural

sovereign authority the Constitution affords to these United

States, as a part of that moral view, should not be disturbed.

21

Indeed, the Constitution gives no indication that the

people intended under these truths to grant ultimate power to

those who would divine law from the statements of non-

representative international bodies. The people ceded only

those natural rights which any people must cede so as to vest

a necessary government with adequate powers. The

Federalist No. 2, at 8 (John Jay) (J.E. Cooke ed., 1961). The

Founders further recognized those powers were limited by

“the transcendent law of nature and of nature’s God. . . to

which all such institutions must be sacrificed,” The

Federalist No. 43, at 297 (James Madison) (J.E. Cooke ed.,

1961).

Thus, it is apparent throughout The Federalist that the

United States Constitution was written with a particular view

in mind of ordinary principles of causality — that certain

motives and opportunities of constituent interests ought (in

view of the nature of man) to be treated by certain forms of

government. The judicial submission of the American people

to an international rule of decision, to which neither political

branch has on its own submitted, is not part of those

Constitutional principles.

The perils of the judiciary submitting the United

States to the authority of international norms which the

political branches have not adopted or authorized are many

and well-documented. World judicial systems are immensely

varied, creating “promiscuous opportunity” to cite authority

for whatever propositions the courts wish. Richard Posner,

No Thanks, We Already Have Our Own Laws, Aug. 2004

Legal Affairs 40, 41; John Leo, Creeping Transnationalism,

U.S. News & World Report, July 21, 2003, at 58 (observing

a problem with judges defying American law by spotting

“emerging world consensus”); Donald E. Childress, II],

Using Comparative Constitutional Law to Resolve Domestic

Federal Questions, 53 Duke L.J. 193, 217, 219-220 (2003)

22

(proposing that international comparative analysis overturns

American legal culture and constitutionalism).

Citation of foreign decisions becomes “one more

form of judicial fig-leafing” of which we have too much

already, when the real influences on judicial decision-

making have nothing whatever to do with the study of

foreign decisions. Posner, supra, at 42. Indeed, foreign

decisions “emerge from a complex socio-historical-politico-

institutional background” of which federal judges “are

almost entirely ignorant.” /d. Courts are not all pursuing the

same enterprise. A federal court interpreting the United

States Constitution may not be doing anything like that

which a foreign court does interpreting different documents.

See Michael D. Ramsey, Jnternational Materials and

Domestic Rights: Reflections on Atkins and Lawrence, 98

Am. J. Int’! L. 69, 73 (2004) (noting that this practice

threatens to undermine constitutional law).’ American

constitutional law and international human rights law emerge

from distinctly different source material. See Roger P.

Alford, Federal Courts, International Tribunals, and the

Continuum of Deference: A Postscript on Lawrence v.

Texas, 44 Va. J. Int’) L. 913, 919 (2004).

For instance, relying on foreign authority to declare

new fundamental constitutional rights shatters prior

prudential constraints on substantive due process theories.

Id. at 925 (citing Robert C. Post, Forward: Fashioning the

Legal Constitution: Culture, Courts, and Law, 117 Harv. L.

’ Professor Ramsey gives the example that the Dudgeon European court

which this Court cited in Lawrence v. Texas, 539 U.S. 558 (2003), was

deciding whether an anti-sodomy provision was “necessary” within the

terms of the European Convention for the Protection of Human Rights

and Fundamental Freedoms, whereas this Court in Lawrence was

deciding whether Texas’s anti-sodomy law was “reasonable” under the

Constitution. Ramsey, supra. at 73-74.

23

Rev. 4, 96 (2003)). This Court has clearly, and repeatedly,

held that treaties cannot supersede individual rights protected

under the United States Constitution. See, e.g., Boos v.

Barry, 485 U.S. 312 (1988) (upholding First Amendment

freedoms); Reid v. Covert, 354 U.S. 1 (1957) (upholding

Sixth Amendment rights). If this Court cedes part of the

Constitution in the instant case, it might expect new

petitioners before this Court citing international norms to

stifle free expression of religious views, and the free exercise

of religion in general.

Citation of foreign decisions certainly is counter to

popular rule by the people and undemocratic. Posner, supra

at 42; Roger P. Alford, Misusing International Sources to

Interpret the Constitution, 98 Am. J. Int’! L. 57 (2004). In

fact, citation of foreign decisions is often an express strategy

of law professors and interest groups to find “a more

sympathetic set of interpretive sources than existed

domestically.” Ramsey, supra at 70 (citing Harold H. Koh,

Paying “Decent Respect” to World Opinion on the Death

Penalty, 35 U.C. Davis L. Rev. 1085, 1109-1129 (2002)).

Because the Court does not have the institutional

resources and skills to engage in its own comparative and

empirical analysis of international sources, it relies unduly

on misshapen advocacy. See Alford, Misusing International

Sources, supra at 64-65. Selection of foreign sources then

becomes non-empirical and even arbitrary except in

relationship to the desired outcome.® Ramsey, supra at 72-

73. Moreover, the choice of issues on which to employ

comparativism is itself unprincipled and, therefore, seems

directed to the Court’s ends. See Alford, Misusing

International Sources, supra at 67-68 (2004) (citing Mary

* Professor Ramsey queries why the Robinson brief on which this Court

relied in Lawrence cited the law of Israel rather than India, for instance.

/d. at 73.

24

Ann Glendon, Abortion and Divorce in Western Law 24-25,

145-54 (1987) (noting that, comparatively speaking, the

United States’ abortion policy is singular among all of the

world’s countries)). “Gone are decisions that tum on

objective facts or value judgments of others. What matters is

the Court’s own conception of liberty.”? Alford, Federal

Courts, supra at 925. Enumeration of rights created- by

international tribunals not only abandons the Constitution’s

text and history but also the experience and history of the

Nation. Alford, Federal Courts, supra at 926.

® Professor Alford also mentions Justice Harlan’s dissent in Poe v.

Ullman, 367 U.S. 497, 542 (1961), writing of a jurisprudence “where

judges . . . felt free to roam where unguided speculation might take

them.” Alford, Federal Courts, supra at 925 n.78.

25

CONCLUSION

By the adoption of the Constitution the American

people ceded certain of their inviolable natural rights to the

government. The people did not, however, cede those rights

to foreign judges exercising authority inconsistent with that

authorized by the people’s representatives and the

Constitution itself.

Here the ICJ had no authority to discern individual

rights judicially enforceable in American courts. Yet, in the

face of substantial contrary legal authority, the ICJ did so.

This Court should, therefore, reject Petitioners’ invitation to

anoint the ICJ’s judicial promulgation as the Supreme Law

of this Land. Moreover, authoritatively adopting the ICJ

judgments will create an irreconcilable conflict with existing

federal statutes and well established constitutional doctrines

of criminal procedure. 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 on 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, and 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 also

surrenders the sovereignty of the United States to an

unelected international body. Neither the United States

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

founded, permit such an extraordinary result.

26

For these reasons, your amicus curiae urges this

Court, not to authoritatively rely upon the LaGrand and

Avena decisions as interpretative sources.

Respectfully submitted,

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. 16

Scottsdale, AZ 85260

January 30, 2006

UD CY | vec212

005

Nos. 04-10566 & 05-51 | aoa

OP IOE Ly yey: CL van

IN THE

Supreme Court of the United States

a ee

MOISES SANCHEZ-LLAMAS,

Petitioner,

v.

OREGON,

Respondent.

Mario A. BUSTILLO,

Petitioner,

V.

GENE M. JOHNSON, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent.

On Writ of Certiorari to the

Supreme Courts of the State of Oregon

and Commonwealth of Virginia

BRIEF OF AMBASSADOR L. BRUCE LAINGEN

ET AL. AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

DANIEL C. MALONE *

DECHERT LLP

30 Rockefeller Plaza

New York, New York 10112

(212) 698-3500

Counsel for Amici

Se —

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 ~— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

Te le FT ee ei crcccrsncecesccnssssesenoreneesenace il

INTEREST OF AMICI CURIAE............ccceeeeeeeeeeees l

SUMMARY OF ARGUMENT ................:ceeessseeeees 3

IT icniincteecisienpiibediapsscntininiipanciistiinmtanpandateesae 4

I. The United States Played A Leading

Role In Developing The Legal

Protections Provided By Both The

Vienna Convention And the Optional

Sl icidsctesodincpeasiiviealiapitaaiiaaniaduimianetidiesimdaianio 5

If. Failure To Provide Vigorous And

Robust Enforcement Of The Vienna

Convention Could Have Grave

Consequences For U.S. Citizens

IIIT Tiicliseicililpadicdaahalihdidaccieahatadiaibinioeieiesindonananseees 10

a ceihcicicaciaticaeatalaiiniaiiadsiehineidinsieuibadiibiingivabiieiia 2

TABLE OF AUTHORITIES

Cases

Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998)............ 22

Case Concerning United States Diplomatic and Consular

Staff in Tehran (U.S.A. v. Iran) 1980, I.C.J. 3 (Judgment

ete einirsicccilsnisiteniitinninsnccsientaidcmnighinuiasintisiidasniandilagnial 6

Flores v. State, 994 P.2d 782, 788 (Okla. Crim. App. 1999)

sildabinhsstecieiueseesdinadiaibaitiiaesiinddadidatieaabidediaaiabinenpnieisdéidnnedibimeitiides 23

Standt v. City of New York,153 F. Supp. 2d 417, 427

SE Ae +. APTI cicascnescerddinhimemniiaiinsctalonsdnistatinenonabininiauiili 22

U.S. vy. Carillo, 70 F. Supp. 2d 854, 860 (N.D. Ill. 1999)....22

Treatises

Optional Protocol Concerning the Compulsory Settlement of

Disputes, April 24, 1963, 21 U.S.T. 325, 596 UNTS 487...

Vienna Convention on Consular Relations................ 1,4, 5,6

Other Sources

Ann Scott Tyson, Where's Gao? Disappeared in China:

100 days and counting, Christian Science Monitor, June 5,

SE senitensiineniciiainirinaiitetailiiahiesditaibivenibidhdevindeienamianemeinaniiinh 24

Application Instituting Proceedings and Pleadings,

Treatment in Hungary of Aircraft and Crew of United

States of America, (1.C.J. Pleadings, 1954).......::0:ccseeeees 12

ill

Budapest v. U.S., N.Y. Times, Dec. 9, 1951, at 168,

http://www. il.proquest.com/proquest/ (ProQuest Historical

Newspapers, N.Y. Times (1851-2000)) ..........c:cceseceeeeeees 10

Bureau of Consular Affairs, U.S. Department of State,

Consular Notification and Access, Instructions for

Federal, State, and cther Local Law Enforcement and

Other Officials Regarding Foreign Nationals in the United

States and the Rights of Consular Officials To Assist

Them 44 (no date of publication available; “[t}he

Department of State expects to update [the publication]

every 2-5 years”’),http://travel.state.gov/law/consular/

I ies icra diate tihecieaetalatinalealintindensannccntel 8

Bureau of Resource Management, U.S. Department of State,

FY 2003 Performance and Accountability Report (2003),

available at http://www.state.gov/m/rm/

ris/perfrpt/2003/htiml/2903 7 Wtm...........:cccseesseeeseeeseseneeens 16

Frank Green, Mission Chief Urges Allen to Commute

Sentence, Richmond Times-Dispatch, Sept. 17, 1997.....23

ee 8, Ct 8 __, ) nae 24

International Court of Justice List of Cases brought before

the Court since 1946, available at http://

SAINI 4 iit cinscciipicbasdeibaiiedhinipenebcniedpdeductiaiapiesuiietnendicbes 9

Kevin Herbert, The Terrorist Threat to the American

Presence Abroad: A Report of a Consultation of The

Critical Incident Analysis Group and The Institute for

Global Policy Research, Part Il. 2. Threat to Citizens

Overseas, University of Virginia, April 12-13, 1999,

iV

available at www.healthsystem.virginia.edu/internet/ciag/

Teports/Teport_terk_CiIZOMS.CHM .......0sc0rsoresersereseveresnesessoss 16

Letter from Madeleine Albright, Secretary of State, to

Victor Rodriguez, Chairman of the Texas Board of

Pardons and Parols (Nov. 27, 1998),.......:cccssececseeseeeeseeees 19

Linda Greenhouse, Court Weighs Execution of Foreigner,

N.Y. Times, April 14, 1996, 9. 04 .....cccossscssovescssescssenceses 19

Louis Henkin, How Nations Behave 30 (2d ed. 1979)......... 16

Memoria! of the United States, United States Diplomatic and

Consular Staff in Tehran, (1.C.J. Pleadings 1980)............. 6

Office of Overseas Citizens Services, Bureau of Consular

Affairs, U.S. Department of State, Department of State

Publication 10252, Overseas Citizens Services, (2002)...16

Press Release, U.S. Department of State, Statement by

Secretary Acheson (Dec. 28, 1951), in 26 Department of

Sete Baslbotion 7 (195Z) ..0..c0ccseesssscecenssnssessseseninnananaan 12

Press Release, U.S. Department of State, U.S. Applications

in C-47 Case Removed From Calendar of ICJ, (July 16,

1954), in 31 Department of State Bulletin 130 (1954).....13

Press Release, U.S. Department of State, U.S. Orders

Closing of Hungarian Consulates, (Dec. 29, 1951), in 26

Department of State Bulletin 7 (1952) ........cccceceeseeereenes 12

Press Release, U.S. Department of State, U.S. Seeks Release

of American Fliers Held in Hungary, (Dec. 28, 1951), in

26 Department of State Bulletin 7 (1952) .......c:cccceeereseees 10

Vv

Press Release, United States Department of State, U.S. Asks

Return of Property Seized in 1951 Plane Incident, (Dec.

10, 1952), in 27 Department of State Bulletin 980, 980-84

alia naan cettaniatliepeniennentnesvenasecceee 10

Press Statement by James P. Rubin, Spokesman, U.S.

Department of State (Apr. 15, 1998)..........ccccccccecceeeeeeeees 17

Press Statement by James P. Rubin, Spokesman, U.S.

Department of State (Nov. 4, 1998) ........ccccccccceeseteeeeseees 20

Press Statement by R. Nicholas Burns, Spokesman, U.S.

Department of State (Sept. 29, 1995)... .ccccccecceceeeeeees 21

Report of the United States Delegation to the United Nations

Conference on Consular Relations, Vienna, Austria,

March 4 to April 22, 1963, reprinted in S. Exec. Doc. E,

I BUG, BI on ccsccceccsecocosessvsvsoseseseseses 6

Restatement (Third) of Foreign Relations Law of the United

EA 15

S. Babcock, The Role of International Law in United States

Death Penalty Cases, 15 LJIL 367, 376 (2002)...........06 19

S. Lynne Walker, Okla. case pits U.S. against world court,

San Diego Union-Tribune, May 7, 2004 ,available at

http://www. signonsandiego.com/uniontrib/20040507/news

TT cianathdnsiacicntiniicdiespedeboteszenseetsanvesses 21

Telegram to all U.S. diplomatic and consular posts abroad

concerning consular assistance for American nationals

abroad, January 1, 2001, available at http://

WWW State. ZOV/S/1/161 39 NUM 20.0... eccecceteeeseeeeteneereneeeeneee 6

The Federalist No. 64, at 392 (Clinton Rossiter ed., 2003) .24

vi

U.S. Air Crew Fined, Hungarian Border “Violation, ” 30,000

Dollars Each, London Times, Dec. 24, 1951, at 4........... 1]

U.S. Department of State Foreign Affairs Manual (1984)...17

US Family Detained in China, BBC News, Mar. 21, 2001,

available at http://news.bbc.co.uk/1/hi/world/asia-

I cciiconioscicsicaiisctiihantinneinniaiapeaiiintiubbinsein 24

U.S. Urges the Iranians to Obey Court Decision, N.Y.

ee, Bite Ces O cctenensctescsttctneninniscsenrninntionniann 14

INTEREST OF AMICI CURIAE'!

Amici are either U.S. citizens who have benefited

from consular assistance abroad or suffered in its absence;

attorneys or diplomats familiar with the importance of

consular assistance; or organizations dedicated to the

interests of U.S. citizens abroad.

Ambassador L. Bruce Laingen served in the United

States Foreign Service from 1949 to 1987. His tours of

service included assignments in Germany, Iran, Pakistan,

and Afghanistan. He served as U.S. Ambassador to Malta

from 1977-1979. In mid-1979, he returned to Iran for a

second term as Chargé d’ Affaires of the American Embassy

before being held hostage in the Iran Hostage Crisis from

November 4, 1979 to January 20, 1981. During the Hostage

Crisis, the United States sought and secured a judgment

against Iran from the International Court of Justice based on

Iran’s violation of the Vienna Convention on Consular

Relations. Ambassador Laingen holds the Award for Valor

from the Department of State, as well as the Distinguished

Public Service Medal from the Department of Defense.

Thomas R. Dawson served as a Peace Corps

volunteer in [ran in 1966. On the way to attending a Peace

Corps Conference in September of that year, Mr. Dawson

and a fellow volunteer decided to explore the shore of the

Caspian Sea in Astara, Iran, which was close to Soviet

territory. Mr. Dawson unwittingly crossed over the

unmarked border into Soviet territory, and he was promptly

~

' Counsel for all parties have consented in writing to the filing of this

brief, those consents are on file with the Clerk of the Court. No counsel

for a party in this case authored this brief in whole or in part, and no

person or entity, other than the undersigned amici and their counsel, has

made a monetary contribution to the preparation and submission of this

brief.

2

captured by armed soldiers, taken into custody, and

interrogated for several days. He repeatedly pleaded with his

captors to allow him contact with the American consulate,

but to no avail, until the tenth day of his captivity when he

was finally allowed contact with American officials. Mr.

Dawson was eventually released to Iranian authorities, who

delivered him to the American embassy in Tehran. Mr.

Dawson completed his service in the Peace Corps in

Micronesia, without further incident, and lives, with his wife,

on Kent Island in Maryland. He owns and operates an art

gallery in Annapolis.

Billy Hayes is a filmmaker, -producer and writer

based in Los Angeles, California. Mr. Hayes spent five

years in a Turkish prison during the 1970s, an ordeal

described in his book, Midnight Express, which was made

into a feature motion picture by the same name. Prompt

notification of the U.S. Consulate ensured that Mr. Hayes

was able to retain a lawyer, while regular consular visits

throughout his incarceration provided an essential and

reliable link to the outside world.

Richard Atkins practices law in Philadelphia,

Pennsylvania, and has specialized for more than twenty years

in assisting American citizens who run afoul of the law in

foreign countries. He has testified before the Senate Foreign

Relations Committee on international prisoner transfer

agreements and wrote a guide to prisoner transfer treaties for

the United Nations. Approximately a thousand incarcerated

Americans abroad have been freed or rcturned with his

assistance.

William D. Rogers served as Assistant Secretary of

State for Inter-American Affairs from 1974-1976, and Under

Secretary of State for Economic Affairs from 1976-1977.

During his lengthy career as a diplomat, he played a key role

in Secretary of State Kissinger’s negotiations to end white

3 .

rule in Rhodesia (now Zimbabwe), participated in the final

Panama Canal Treaty negotiations, was special emissary for

President Carter to El Salvador in 1980, co-chaired the

Bilateral Commission on the Future of U.S. Mexican

Relations, and was Senior Counsel to the National Bipartisan

Commission on Central America. He has also served as

President of the Center for Inter-American Relations in New

York, and as President of the American Society of

International Law. |

Founded in Geneva in 1978, American Citizens

Abroad (ACA) is a non-profit, non-partisan organization

dedicated to serving and defending the interests of U.S.

citizens living outside the United States. ACA works closely

to assist the U.S. Government in developing cohesive

national policies dealing with Americans overseas. The

organization has members in over 90 countries worldwide.

Established in 1973, the Association of Americans

Resident Overseas (AARO) is a volunteer, non-partisan

service organization representing the interests of more than

4.1 million Americans living and working abroad. Its

mission is to ensure that Americans resident overseas are

guaranteed the same rights and privileges as their U‘S.

counterparts. AARO has worked to change U.S. laws and

policies so that Americans abroad receive the same benefits

and protection as citizens in the United States.

Founded in 1931, the Federation of American

Women's Clubs Overseas (FAWCO) is a non-partisan

network of 78 independent organizations in 37 countries,

with over 15,000 members. FAWCO is a non-profit U.S.

corporation and a recognized NGO with special consultative

status to the UN Economic and Social Council. Among its

stated purposes is to defend the rights of all Americans

overseas.

4

While amici take no position on the ultimate merits

of the underlying criminal cases, they urge that the failure by

the lower courts to give a vigorous and robust scope to the

protections of the Vienna Convention on Consular Relations

will ultimately, and inevitably, endanger the welfare of

United States citizens abroad.

SUMMARY OF ARGUMENT

Every year, a significant number of United States

citizens traveling or living overseas find themselves ensnared

in the criminal justice system of a foreign government.

Consular assistance provides a vital service to these

Americans, maintaining a desperately needed link to the

outside world, and helping them navigate and understand an

unfamiliar, and perhaps hostile, legal system.

The United States played a leading role in creating

Article 36 of the Vienna Convention on Consular Relations,

which ensures that consular officers will be allowed to

perform this important service. Article 36 depends in the

first instance on the right of an individual detainee to be

notified of the right to seek consular assistance. It obligates

Member States to notify foreign detainees of that night, and

to permit their consuls to have access to and to assist the

detainees. But if officials in this country fail to provide

foreign nationals with the full benefit of the Article 36

provisions on consular assistance, beginning with the

individual detainee’s right of notice, it is inevitable that U.S.

citizens abroad will soon suffer a similar, reciprocal fate.

Indeed, nothing presents a greater threat to consular

assistance to Americans abroad than the failure to respect

foreign nationals’ reciprocal right to assistance in this

country.

The United States also played a leading role in

drafting the Optional Protocol Concerning the Compulsory

5

Settlement of Disputes, which established the compulsory

jurisdiction of the International Court of Justice in disputes

involving parties to the Convention. The United States has

frequently recognized the International Court of Justice (ICJ)

as a proper forum to adjudicate disputes between states. In

fact, it has invoked the jurisdiction of the World Court more

often than any country in the world. Of particular

significance to this dispute, the United States brought an

action in 1979, following the Tehran hostage crisis. The

action challenged, inter alia, lran’s failure to comply with

Article 36 of the Convention.

The failure by the lower courts to give full effect to

the provisions of Article 36 — including in particular, the

detainee’s right of notice — is inconsistent with the leading

role of the United States in creating the Convention. It is

also at odds with its frequent resort to the jurisdiction of the

ICJ, which has recognized the notice right. More ominously,

if the judgment below is allowed to stand, it is inevitable that

U.S. citizens abroad will soon suffer in kind.

ARGUMENT

The United States Played A Leading Role In

Developing The Legal Protections Provided By Both

The Vienna Convention And the Optional Protocol

The United States has long recognized what can

scarcely be gainsaid: the Vienna Convention on Consular

Relations (Convention)’ provides vital safeguards to persons

imprisoned by a contracting State.” But equally clear, and no

? April 24, 1963, 21 U.S.T. 77, 596 UNTS 261.

* See, e.g, Memorial of the United States, Case Concerning United

States Diplomatic and Consular Staff in Tehran, \.C.J. Pleadings 1980, p.