# Amicus Curiae Brief — Sanchez-Llamas v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0202%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1001

## Text

- 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0202%3A13. Public record. Not legal advice.