# Amicus Curiae Brief — Sanchez-Llamas v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0202%3A19

## Record

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

## Text

xii

TABLE OF AUTHORITIES - Continued

U.S. Boosts Security in Honduras As Tempers

Flare, Reuters, Apr. 24, 1998...............::cccecsssseeeeeeeess

U.S. Says China Misled It on Scholar’s Where-
abouts; Envoy Says He Took 12-Hour Taxi Ride
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U.S. Department of State, Country Background Notes,

available at http://www.state.gov/r/pa/ei/bgn/ .........

U.S. Department of State, Consular Information
Sheet: India, Aug. 24, 2005, available at http://

travel.state.gov/travel/cis_pa_tw/cis/cis_1139.html ..

U.S. Department of State, Consular Notification and
Access, Part 3: FAQs, available at http://travel.state.

gov/law/consular/consular_ 639.html..................0.066

Armando Villafranca, Life and Death Chasm, Hous.

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WTO, Chronological List of Dispute Cases, at http//
www.wto.org/english/tratop_e/dispu_e/dispu_status_e.

STATEMENT OF INTEREST"

Amici have served as Senior State Department Offi-
cials, Ambassadors, and Legal Advisers to the U.S. De-
partment of State, representing the government of the
United States at home and abroad in both Republican and
Democratic administrations.’ Amici express no opinion on
what the ultimate resolution of Petitioners’ convictions
and sentences should be. Nor do all signatories of this
brief necessarily agree with the International Court of
Justice’s (“ICJ”) interpretation of the Vienna Convention
on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596
U.N.T:S. 261 (“VCCR”), in Avena and Other Mexican
Nationals (Mex. v. U.S.), 2004 LCJ. 128 (Mar. 31)
(“Avena”). But all Amici do agree that this Court should
abide by the ICJ’s interpretation of Article 36 of the VCCR
as a matter of comity and uniform treaty interpretation,
rather than allowing individual state courts within the
United States to adopt their own independent interpreta-
tions of the meaning of Article 36. All Amici further agree
that this Court’s failure to respect the ICJ’s judgment in

" In accordance with Supreme Court Rule 37.6, Amici state that no
party, person or entity other than Amici and their counsel authored this
Brief in whole or in part, and no person or entity, other than Amici and
their counsel, has made a monetary contribution to the preparation or
submission of this Brief. All parties have granted consent to the filing of
this Amicus Curiae Brief.

* Amici include former Secretary of State Madeleine K. Albright,
former Deputy Secretary of State Strobe Talbott, former Under
Secretary of State Thomas R. Pickering, former Ambassadors Morton
Abramowitz, Stephen W. Bosworth, Jeffrey Davidow, Wendy R.
Sherman, Nancy Soderberg, and Frank G. Wisner, former Lega! Adviser
Herbert J. Hansell, and Special Presidential Envoy James C. O’Brien.
Of their number, four have retired with the rank of Career Ambassador,
the highest rank that can be awarded to members of the United States
Foreign Service. Amici appear in their personal capacities, and by doing
so, do not intend to convey the views of their affiliated institutions on
the questions presented here. The qualifications of Amici are listed in
the Appendix to this Brief.

2

Avena with respect to the two cases currently before the
Court would significantly impair the credibility and
efficacy of American diplomats in the international arena,
jeopardize important U.S. foreign policy interests, and
diminish American standing in the world community. Cf.
Crosby v. Natl Foreign Trade Council, 530 U.S. 363, 385
(2000) (“[O]pinions of senior National Government officials
are competent and direct evidence of the frustration of
congressional objectives by [a] state Act.”).

Amici believe that “[g]reat nations, like great men
[and women], should keep their word.” FPC v. Tuscarora
Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissent-
ing). This Court therefore should enforce Avena’s holdings
that: (1) Article 36 of the VCCR provides foreign nationals
with judicially enforceable individual rights; and (2) U.S.
state and federal courts must afford those individual
rights “full effect,” notwithstanding the existence of any
state procedural bar. To protect the foreign policy interests
of the United States, this Court’s judgment should ensure
that state court rulings do not undermine our diplomatic
relations with close allies or damage critical U.5. interests
embodied in other treaty regimes.

SUMMARY OF ARGUMENT

From the founding until today, the ability of U‘S.
diplomats to carry out important foreign policy objectives
has critically depended upon strong enforcement of our
treaty obligations by the federal government and federal
courts. The Framers’ difficult experiences under the
Articles of Confederation taught them that the United
States cannot credibly conduct its foreign relations unless
the several States honor national treaty obligations. -
Under the Articles of Confederation, state violations of
national treaty obligations led important allies and adver-
saries to refuse both to honor their reciprocal treaty
obligations and to enter new commercial treaties with the

United States.

3

In drafting the Constitution, the Framers made sure
that the federal government would have the authority to
bind the entire nation, including the individual States, to
our international obligations. Since its inception, this
Court repeatedly has reaffirmed that understanding,
regularly holding that treaties duly entered by the na-
tional government supersede conflicting state laws and
bind the States to our national commitments.

The ICJ has interpreted the VCCR as creating judi-
cially enforceable individual rights to consular access and
notification, which must be given “full effect” over any
state procedural bar. The President has issued an order
confirming that the United States has an obligation to
comply with its international commitments and to enforce
the ICJ’s decision in Avena. Notwithstanding this clear
interpretation of the scope of Article 36 of the VCCR, the
Commonwealth of Virginia and the State of Oregon ar-
rested, tried, convicted, and sentenced Petitioners Mario
A. Bustillo and Moises Sanchez-Llamas - Honduran and
Mexican nationals, respectively — without ever informing
either of his right to seek consular assistance.

Oregon’s and Virginia’s continuing noncompliance in
these cases with the VCCR ~ as construed by the Avena
court — offends the Framers’ constitutional vision and
promotes precisely the sort of diplomatic failures that
prompted the modern treaty power. The several States’
practice of ignoring the VCCR obligations has strained
bilateral and multilateral relations, disrupted important
national foreign policy interests, and impaired the ability
of diplomats to carry out critical initiatives with foreign
governments and international organizations.’ Moreover,
state noncompliance with our treaty obligations has
caused allies and adversaries alike to criticize the United

* Accord Medellin v. Dretke, 125 S. Ct. 2088, 2096 (2005) (“In this
country, the individual States’ (often confessed) noncompliance with the
treaty has been a vexing problem.... [that] may have considerable
ramifications . . . .”) (O’Connor, J., dissenting) (citations omitted).

4

States and to question our longstanding leadership in
international law and human rights.

This Court’s decision will affect not just the ability of
the United States to enforce the VCCR, but, more broadly,
our nation’s capacity to participate effectively in a diverse
array of treaty regimes in which our executive and legisla-
tive branches of government have chosen compulsory
international adjudication as a means to protect our
national interests. As American diplomats, Amici have
helped to pursue and secure numerous treaties that confer
jurisdiction upon the ICJ and other international dispute-
settlement bodies. As American private commercial inter-
ests become increasingly global, reliable mechanisms for
international dispute resolution will become increasingly
central to our nation’s foreign policy. The United States
cannot build or benefit from these mechanisms so long as
States and localities continue to flout international tribu-
nal rulings, break ratified treaties, and jeopardize our
global reputation as a dependable treaty partner.

ARGUMENT

I. State Courts Disrupt the Diplomatic Interests
of the United States When They Ignore the
ICJ’s Specific Holdings Construing Article 36 of
the VCCR.

Article 36 of the VCCR requires all signatory nations,
including the United States, to inform “without delay” any
detained foreign national of his right to request assistance
from the consul of his own nation and, if the national so
requests, to inform “without delay” the consular office of
that national’s detention or arrest. Since 2001, the United
States has been a party before the ICJ to three cases
interpreting the scope of Article 36 of the VCCR.

First, in Vienna Convention on Consular Relations
(Para. v. U.S.), 1998 I.C.J. 248 (Provisional Measures
Order of Apr. 9), the ICJ indicated provisional measures
questioning Virginia’s violations of a Paraguayan national’s

5

Article 36 rights. Considering that ICJ ruling in Breard v.
Greene, 523 U.S. 371, 375 (1998), this Court found absent
from the ICJ’s ruling any “clear and express statement” of
the meaning of Article 36 with respect to the issues cur-
rently before this Court.

Three years later, however, in LaGrand Case (F-R.G.
v. U.S.), 2001 LC.J. 466 (June 27) (“LaGrand”), the ICJ
rejected the U.S. position that rights stemming from
violations of the VCCR are solely the “rights of States, and
not of individuals.” Jd. J 76. The ICJ specifically held that
Article 36 of the VCCR “creates individual rights.” Id.
9. 77. Moreover, the ICJ determined that application of
procedural default rules in that case violated the VCCR
because it prevented “‘full effect [from being] given to the
purposes for which the rights accorded under this article
are intended.’” Id. 491 (quoting VCCR art. 36(2), 21
U.S.T. at 101) (alteration in original).

In 2004, in Avena, the ICJ held that the United States
had violated the consular rights of numerous Mexican
nationals in contravention of Article 36(1)(b) of the VCCR
by failing to inform fifty-one detained Mexican nationals of
their treaty rights and by failing to inform Mexican
consular authorities of forty-nine of the detentions. Jd.
J 153(4)-(5).* Citing LaGrand, the ICJ reaffirmed that
Article 36(1)(b) of the VCCR gives detained foreign na-
tionals judicially enforceable individual rights they can
“assert|] ... within the domestic legal system of the
United States.” Jd. J 40. The ICJ also held that domestic
application of procedural default rules to bar consideration
of VCCR claims violated Article 36(2)’s direction that
signatories “enable full effect to be given to the purposes

* The ICJ held that the proper remedy for these violations “consists
in the obligation of the United States of America to provide, by means of
its own choosing, review and reconsideration of the convictions and
sentences of the Mexican nationals . . . by taking account . . . both of the
violation of the rights set forth in Article 36 ... and of paragraphs 138
to 141 of this Judgment.” Avena at 7 153(9).

6

for which the rights accorded under this Article are in-
tended.” VCCR art. 36(2), 21 U.S.T. at 101; Avena at
WW 113-14.

Together, LaGrand and Avena present clear pro-
nouncements by the ICJ that Article 36 of the VCCR
provides individual, judicially enforceable rights that
cannot be impeded by local procedural bars. The ICJ’s
unambiguous interpretation of Article 36 in LaGrand and
Avena binds this Court not just as a matter of interna-
tional law,° but also through principles of comity and
uniform treaty interpretation. As this Court has explained:

“Comity,” in the legal sense, is neither a matter
of absolute obligation, on the one hand, nor of
mere courtesy and good will, upon the other. But
it is the recognition which one nation allows
within its territory to the legislative, executive or
judicial acts of another nation, having due regard
both to international duty and convenience, and
to the rights of its own citizens, or of other per-
sons who are under the protection of its laws.

Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). At least as
much “mutual trust and respect” should be due the judg-
ment of an international, U.N.-created tribunal that the
United States has chosen as the forum for resolution of a
certain category of disputes. See Sandra Day O’Connor,
Federalism of Free Nations, in International Law Deci-
sions in National Courts 13, 18 (Thomas M. Franck &
Gregory H. Fox eds., 1996).

* This interpretation of Article 36 is precisely the “clear and
express statement” this Court had found lacking in Breard. 523 U.S. at
375.

* See Avena at 4 151 (interpretation of Article 36 of the VCCR is
one of general application and is not limited to the facts of the case); see
also 3 Shabtai Rosenne, The Law and Practice of the International
Court, 1920-1996, at 1655-56 (3d ed. 1997) (ICJ judgment “creates a res
judicata”).

7

By signing the Optional Protocol to the VCCR, the
United States expressly consented to the ICJ’s jurisdiction
to interpret the meaning of the VCCR. The United States
does not deny that the decision in Avena was reached by
an impartial judicial body’ or that the United States fully
and fairly litigated the dispute. Given this background,
rules of comity should require that the ICJ’s judgment be
given full effect in U.S. courts without reexamining the
merits of that decision. Cf. Hilton, 159 U.S. at 202; see id.
at 203 (“[T]he merits of the case should not ... be tried
afresh, as on a new trial or an appeal, upon the mere
assertion . . . that the judgment was erroneous in law or in
fact.”); see also Medellin v. Dretke, 125 S. Ct. 2088, 2094
(2005) (Ginsburg, J., concurring) (“It is the long-recognized
general rule that, when a judgment binds or is respected
as a matter of comity, a ‘let’s see if we agree’ approach is
out of order.”).

This Court should adhere to the ICJ’s interpretation
of Article 36 of the VCCR to help ensure that the VCCR’s
provisions on consular access are consistently interpreted
and uniformly applied by all signatories — one of the
parties’ principal goals in enacting the VCCR in the first
place. When a multilateral treaty results from an effort to
achieve uniform treatment of a particular subject, “it is
reasonable to impute to the parties an intent that their
respective courts strive to interpret the treaty consis-
tently.” Olympic Airways v. Husain, 540 U.S. 644, 660

” Indeed, in Avena, the ICJ’s determination of liability was reached
by a vote of 14-1 (with the U.S. judge in the majority), and its determi-
nation of remedy was reached by unanimous vote. Avena at 9] 153(4)-
(7), (9), (11).

* See Report of the U.S. Delegation to the U.N. Conference on
Consular Relations, reprinted in Vienna Convention on Consular
Relations and Optional Protocol, Sen. Exec. Rep. 91-9, 91st Cong., Ist
Sess., at 3 (1969) (report of Sen. Fulbright) (stating that the U.S.
entered into the VCCR to “further friendly relations between nations
through the orderly development of uniform standards of consular
practice”).

8

(2004) (Scalia, J., dissenting).” The Avena court itself
recognized the importance of this principle of uniform
treaty interpretation, stating that it had approached the
decision “from the viewpoint of the general application of
the Vienna Convention” and intended its interpretation
and application of the VCCR to apply in any future case
between any parties to the VCCR. See Avena at { 151.
Both this principle of uniform treaty interpretation and
the VCCR itself would be eviscerated were each national
party (or local province thereof) to insist upon applying its
own peculiar interpretation of the VCCR.

Recent U.S. Executive Branch positions reinforce
Amici’s claim that principles of comity and uniform treaty
interpretation warrant application of Avena’s interpreta-
tion of the VCCR. In his February 28, 2005 Presidential

* See also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515
U.S. 528, 537 (1995); Air France v. Saks, 470 U.S. 392, 404 (1985);
Sumitomo Shoji America v. Avagliano, 457 U.S. 176, 185 (1982) (“When
the parties to a treaty both agree as to the meaning of a treaty provi-
sion, and that interpretation follows from the clear treaty language, we
[as judges) must, absent extraordinarily strong contrary evidence, defer
to that interpretation.”); Block v. Compagnie Nationale Air France, 386
F.2d 323, 337-38 (5th Cir. 1967) (“A multilateral treaty is rather like a
‘uniform law’ within the United States. The Court has an obligation to
keep interpretation as uniform as possible.”); Antonin Scalia, Foreign
Legal Authority in the Federal Courts, 98 Am. Soc’y Int'l L. Proc. 305,
305 (2004) (“When federal courts interpret a treaty to which the United
States is a party, they should give considerable respect to the interpre-
tation of the same treaty by the courts of other signatories. Otherwise
the whole object of the treaty, which is to establish a single, agreed-
upon regime governing the actions of all the signatories, will be
frustrated.”); A Conversation on the Relevance of Foreign Law for
American Constitutional Adjudication with U.S. Supreme Court
Justices Antonin Scalia & Stephen Breyer (Jan. 13, 2005) (transcript
available at http/Awww.wcl.american.edu/secle/founders/2005/050113.
cfm (last visited Dec. 18, 2005)) (“[Tihe object of a treaty being to come
up with a text that is the same for all the countries, [the US. courts) should defer
to the views of other signatories, much as we defer to the views of agences—that
is to say if it's within [the] ball park, if it’s a reasonable interpretation, though not
necessarily the very best.”) (comments of Justice Scalia).

9

Determination directing state courts to comply with
Avena, President Bush declared that “the United States
will discharge its international obligations under [Avena]
by having state courts give effect to the decision in accor-
dance with general principles of comity.” Subsequently,
the Executive Branch has submitted two amicus briefs
explaining the reasoning behind this Presidential Deter-
mination." These briefs make clear that the presidential
decision to adhere to Avena as a matter of comity was not
tied to the fact that the United States was an immediate
party to the Avena decision.” Instead, the United States
argues, as Amici do here, that state compliance with
Avena is essential for broader diplomatic reasons: because
compliance “protect[s] the interests of United States
citizens abroad, promotes the effective conduct of foreign

* Brief for the United States as Amicus Curiae Supporting
Respondent at app. 2, Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No.
04-5928) (Memorandum from the President to the Attorney General
(Feb. 28, 2005)), 2005 WL 504490, at *laa (emphasis added).

" See Brief for the United States as Amicus Curiae Supporting
Respondent, Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928),
2005 WL 504490; Brief for the United States as Amicus Curiae, Ex
Parte Jose Ernesto Medellin, No. AP75,207 (Tex. Crim. App. Jun. 22,
2005), available at http://www.debevoise.com/publications/pdf/CCA%
20US%20Amicus.pdf (last visited Dec. 18, 2005) (hereinafter U.S. CCA
Brief).

* To the contrary, the United States claims that “[iJn particular
circumstances, the President may decide that the United States will not
comply with an ICJ decision and, if Security Council enforcement
measures are proposed, direct a veto, consistent with the United
Nations Charter.” U.S. CCA Brief at 21; see also id. at n.3 (citing the
United States’ failure to abide by the ICJ’s determination in Military
and Paramilitary Activities (Nicar. v. U.S.), 1986 1.C.J. 14, 146, (June
27)). The U.S. Government’s brief gives little weight to the fact that the
United States was a party to the VCCR’s Optional Protocol when Avena
was decided because “/t]he Optional Protocol does not itself commit the
United States to comply with a resulting ICJ decision.” Jd. at 17. If so,
it is unclear why the U.S. decision to withdraw from the Optional
Protocol on March 7, 2005 should affect the question whether compli-
ance with Avena remains necessary as a matter of comity. Jd. at 17 n.1.

10

relations, and underscores the United States’ commitment
in the international community to the rule of law.” U.S.
CCA Brief, supra note 11, at 13; see also id. at 23 (explain-
ing the President’s decision to adhere to Avena as the
product of “delicate and complex calculations ... taking
into account” a number of factors, including “the need for
the United States to be able to protect Americans abroad,
the international legal obligations of the United States,
judgments about the likely responses of various foreign
countries to potential United States actions with respect to
the Vienna Convention, and other United States foreign
policy interests”).

Against this background, the refusal of state courts to
adhere to Avena will undermine America’s credibility as a
global leader and seriously hinder foreign policy objectives
at a critical time in our nation’s history. The United States
has long declared that the right to consular access guaran-
teed by the VCCR is “widely accepted as the standard of
international practice of civilized nations.” Through its
diplomats, our government routinely calls on such nations
as Iraq, Syria, China, and North Korea to abide by this
minimal standard when U.S. citizens are detained abroad.”

* Significantly, the U.S. Government brief also asserts that
applying the “review and reconsideration” of VCCR claims as set forth
in Avena will be easy for state courts to accomplish. See id. at 29.

“ Victor M. Uribe, Consuls at Work: Universal Instruments of
Human Rights and Consular Protection in the Context of Criminal
Justice, 19 Hous. J. Int'l L. 375, 385 (1997) (quoting telegram sent from
U.S. Department of State to its Embassy in Damascus on February 21,
1975 (hereinafter Damascus Telegram], as reprinted in Luke T. Lee,
Consular Law and Practice 145-46 (2d ed. 1991)).

* S. Adele Shank & John Quigley, Foreigners on Texas’s Death Row
and the Right of Aecess to a Consul, 26 St. Mary’s L.J. 719, 729 (1995)
(noting U.S. protest of delay in notification of detention of U.S. mission-
aries in El Salvador); Transcript of State Dep’t Regular Briefing, Fed.
News Serv., Aug. 19, 1999 (James Rubin, State Dep’t spokesman,
reporting on request for access and immediate grant of access to U.S.
citizen detained in China); Associated Press, Iragis Refuse Access to

Americans for Second Day, Apr. 19, 1995 (quoting State Department
(Continued on following page)

11

The United States not only drafted the amendment that
ultimately became Article 36, but also led the effort to
convince nations throughout the world to confer compul-
sory jurisdiction on the ICJ, precisely because American
foreign policy officials realized that diplomatic overtures
alone were insufficient to enforce the VCCR.” Over two
decades ago, when Iran famously violated the VCCR by
taking U.S. diplomats hostage in Tehran, then flouted its
obligation under the Optional Protocol to comply with the
ICJ’s order to release the hostages, then-President Carter
accused Iran of showing “‘contempt, not only for interna-
tional law, but for the entire international structure for

spokesman: “Obviously, we are extremely disappointed that the Iraqi
government has reneged on its promise to allow these weekly visits.
We're disappointed because that is their legal obligation under the Vienna
Convention.”); Transcript of State Dep’t Regular Briefing, Fed. News Serv.,
July 15, 1999 (James Rubin, State Dep't spokesman, commenting on
detention of U.S. female citizen: “We remind the government of North
Korea of its obligations under the Interim Consular Agreement of 1994 and
the Vienna Convention on Consular Relations to permit consular access to
detained U.S. citizens.”); see also Lee, supra note 14, at 145-46 (documenting
US. invocation of the VCCR); Brief of Former United States Diplomats as
Amici Curiae in Support of Petitioner Jose Ernesto Medellin at 17 & n.26, Ex
Parte Jose Ernesto Medellin, No. AP-75,207 (Tex. Crim. App. Jun. 22, 2005)
{hereinafter Diplomats CCA Brief], avaiable at http//www.debevoise.com/
18, 2005).

See Brief for Ambassador L. Bruce Laingen and Lt. Col. John J.
Swift et al. as Amici Curiae Supporting Petitioners at 6-16, Medellin v.
Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928); Brief for International
Law Experts as Amici Curiae Supporting Petitioners at 11-13, 15-21,
Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928) (describing the
U.S. role in the creation and implementation of the VCCR); Luke T.
Lee, Vienna Convention on Consular Relations 111, 113 (1966); see also
Sen. Exec. Rep. 91-9, at 19 (statement of J. Edward Lyerly, Deputy
Legal Adviser for Administration of the State Dep’t); U.N. Conference
on Consular Relations, Mar. 4—Apr. 22, 1963, Official Records, 1st
Comm., 29th mtg., 44 36, 54, U.N. Doc A/CONF.25/16 (1963); id. at
plenary mtg., 21st mtg., {7 17-20.

12

securing the peaceful resolution of differences among
nations.’””

Today, our closest allies now accuse the United States
of showing similar disregard for the VCCR and the ICJ.
Through numerous calls, meetings, and letters to both
state and federal authorities, our allies have strenuously
requested review and reconsideration of the convictions
and sentences of their citizens who were denied their
VCCR rights despite orders of the ICJ.” There are few, if
any, areas of our foreign policy in which Amici can recall
hearing so consistently from foreign heads of state, foreign
ministers, and foreign ambassadors pleading for the
enforcement of U.S. treaty obligations.

International and regional human rights bodies have
echoed the vigorous protests of foreign governments. The
Inter-American Commission on Human Rights, the Euro-
pean Parliament, and the U.N. High Commissioner for
Human Rights have each strongly criticized U.S. violations

” Philippe Sands, An Execution Heard Around the World, L.A.
Times, Apr. 16, 1998, at B9 (quoting President Carter’s comments
during the Iranian hostage crisis).

” See, e.g., Ginger Thompson, An Execution in Texas Strains Ties
with Mexico and Others, N.Y. Times, Aug. 16, 2002, at A6 (citing call
from President Fox of Mexico); Laura LaFay, World Court - U.S. To
Halt Execution, Virginian-Pilot, Apr. 10, 1998, at Al (describing protests
by Mother Teresa, Pope John Paul II, and Italian government to
execution of Italian citizen); Somini Sengupta, Appeal in Murder Cites
International Treaty, N.Y. Times, Dec. 23, 1997, at B5 (letter from
Ecuadorean Consul General); David Schwartz, Plan To Execute German
Killers Attracts Scrutiny, Dallas Morning News, Feb. 22, 1999, at Al
(describing efforts by then-German President Herzog, Chancellor
Schroeder, Foreign Minister Fischer, and Ambassador Chrobog request-
ing support for clemency from President Clinton and Arizona Governor
Hull); see also Rodrigo Labardini, International Court of Justice Finds
U.S. Breached Its Obligations Under the Vienna Convention on Consu-
lar Relations, 20 Int'l Enforcement L. Rep. 250, 251 n.8 (June 2004)
(documenting six letters sent by the government of Mexico to the
United States regarding the execution of Irineo Tristan Montoya by
Texas in 1997); Diplomats CCA Brief at 18 & n.29.

13

of the VCCR.” The European Union has lodged numerous
official demarches with state authorities requesting
reconsideration of pending executions because of violations

of the VCCR.” ,

The widespread international opposition to the sev-
eral States’ persistent practice of violating the VCCR and
the ICJ decisions construing that treaty has undeniably
harmed our global position as a human rights leader.”

* See, e.g., Villareal v. United States, Case 11.753, Report No.
52/02, Inter-Am. C.H.R., 99] 69-70 (2002) (describing notification of the
right to consular assistance as “among the minimum guarantees
essential for foreign nationals also to adequately prepare their defense
and receive a fair trial” and stating that failure to notify of such rights
violated Mexican national’s right to due process); Resolution on Death
Sentence Handed Down on Greg Summers in Texas, USA, B4-0188/99,
1999 O.J. (C 150) 383-84 (passing resolution condemning persistent
U.S. failure to notify foreign nationals of rights to consular access and
noting “demonstrably extremely poor quality” of defense counsel in case
of two German brothers on death row who had not had consular
assistance); Kevin Sullivan, Mexico Challenges U.S. on Death Penalty
Cases, Wash. Post, Jan. 10, 2003, at Al7 (citing concerns expressed by
U.N. High Commissioner for Human Rights regarding the execution of
Javier Suarez Media, a Mexican citizen, because of the denial of his
rights under the VCCR by the state of Texas); Dana Priest & John M.
Goshkw, Genocide Warning Center Established; Clinton Human Rights
Initiatives Include Changes at INS, Wash. Post, Dec. 11, 1998, at A52
(referring to a speech by U.N. High Commissioner for Human Rights
before U.N. General Assembly, criticizing the execution of Joseph
Stanley Faulder, a Canadian citizen, because of the denial of his rights
under the VCCR by the state of Texas); Diplomats CCA Brief at 19-20 &
n.32.

*® Demarches by the European Union have been filed in a number
of cases, including: (1) Joseph Stanley Faulder, Canada, Dec. 8, 1998;
(2) Miguel Angel Flores, Mexico, Nov. 3, 2000; (3) Hung Thanh Le,
Vietnam, Dec. 4, 2003; (4) Gregory Madej, Poland, May 1, 2001; (5)
Javier Suarez Medina, Mexico, July 23, 2002; (6) Osvaldo Torres,
Mexico, Apr. 30 and May 6, 2004; (7) Gerardo Valdez Maltos, Mexico,
June 5 and July 13, 2001.

* See, e.g., George Boehmer, Killer Loses Fight for Life, Daily Tel.
(Sydney, Australia), Mar. 4, 1999, at 25 (quoting the German parlia-
ment’s Human Rights Committee Chairman Roth’s reaction to the

(Continued on following page)

14

State noncompliance with these rulings has undermined
our authority in several important international human
rights bodies.” International disapproval of our noncom-
pliance with the VCCR has also deflected attention away
from serious human rights abuses in other countries.
Actions of the several States in violation of the VCCR and
the ICJ decisions construing that treaty have provided our
adversaries with diplomatic ammunition to challenge the
sincerity of our own commitment to human rights and the
rule of law in international relations.” As the German

LaGrand execution: “When [Secretary of State Madeleine] Albright
talks of human rights, for example in China, she must prove her
credibility by also taking human rights in the United States seriously.”);
Amnesty International, The Execution of Angel Breard: Apologies Are
Not Enough, at http://web.amnesty.org/library/Index/engAMR51027
1998 (May 1, 1998) (quoting Paraguayan Deputy Foreign Minister
Rachid: “[T]here is not an international summit at which they [the U.S.
government) do not preach the preservation of human rights... . [T]he
United States has been the champion of democracy .. . let them be the
first one to demonstrate to us the principles of democracy; let them also
respect human rights.”) (last visited Dec. 21, 2005); Diplomats CCA
Brief at 19-20 & n.34.

* Shortly after the LaGrand executions occurred despite a contrary
ICJ provisional measures order, the United States was voted off the
U.N. Commission on Human Rights in 2001 for the first time in that
body’s 54-year history. Barbara Crossette, For First Time, U.S. Is Excluded
from U.N. Human Rights Panel, N.Y. Times, May 4, 2001, at Al. Shortly
thereafter, the United States likewise failed to win a seat on the Inter-
American Commission on Human Rights for the first time since that body’s
inception in 1959, and its observer status in the Council of Europe — which
bans executions - has been put in jeopardy, in part because of U.S.
executions of foreign nationals who had not been counseled under the
VCCR. Connie de la Vega, Going It Alone, Am. Prospect, July 2004, at A22.

® See, e.g., Raymond Bonner, Mexican Killer Is Refused Clemency
by Oklahoma, N.Y. Times, July 21, 2001, at A8 (quoting Mexican
government as declaring Oklahoma's execution of Mexican national
denied VCCR rights as “contrary to international law and the elemental
principles of cooperation between nations”); Roger Cohen, U.S. Execu-
tion of German Stirs Anger, N.Y. Times, Mar. 5, 1999, at 14 (quoting
German Justice Minister, declaring that Arizona's execution of the two
LaGrand brothers “is barbaric and unworthy of a [nation] based on the

(Continued on following pa.e)

15

Justice Minister stated in announcing Germany's suit
against the United States in the ICJ to challenge the
execution of two German nationals who were denied
consular rights: “Respecting international laws cannot be
a one-way street.” So long as the United States continues
to promote the rule of law around the world, other nations
will equally demand that we set an example by complying
strictly with our own binding obligations under the U.N.
Charter, the ICJ statute, and the VCCR.

Taken together, continued state noncompliance with
our obligations under the VCCR has significantly ham-
pered the ability of the President, Amici, and other diplo-
mats to carry out foreign policy initiatives. In Amici’s
experience, a significant proportion of important bilateral
and multilateral meetings with our closest allies is now
consumed with answering diplomatic demarches challeng-
ing these practices, rather than addressing issues more
central] to our core national foreign policy interests.

Allowing state courts to keep ignoring the ICJ’s
interpretation of Article 36 in Avena and LaGrand would
inevitably harm our diplomatic relations with our closest
allies. Foreign hostility stirred by the U.S. practice of
executing foreign nationals who were denied their VCCR
rights has triggered fierce press criticism and even angry
demonstrations in front of U.S. embassies abroad.” Such

rule of law”); David Stout, Do As We Say, Not As We Do: U.S. Executions
Draw Scorn from Abroad, N.Y. Times, Apr. 26, 1998, § 4 (Week in
Review), at 4 (quoting Honduran newspaper upon execution of Hondu-
ran national denied rights under the VCCR: -“The most powerful
country in the world, which claims to be a stickler for justice and legal
rectitude, has violated its own precepts.”).

* See Germany Sues U.S. for Breaking Law, Reuters, Sept. 16,
1999, available at http://www.ub.es/penal/historia/PdeM/dpicintl. html
(last visited Dec. 19, 2005).

* See Brian Knowlton, Execution Pits Mexico Against U.S.; Fox
Echoes World on Death Penalty, Int'l Herald Trib., Aug. 16, 2002, at 1
(documenting intense media attention in Mexico); Colin Nickerson,
Canadians Protest a Texas Execution; Inmate Set To Die Today for 1975

(Continued on following page)

16

protests have seriously disrupted important diplomatic
missions, and at times, even threatened the physical
safety of U.S. diplomats and embassy staff trying to work
in these countries.”

Killing, Boston Globe, Dec. 10, 1998, at A2 (describing the execution of
Stanley Faulder as a “cause celebre ... dominating front pages and
television newscasts” in Canada); Stout, supra note 23 (citing protest in
front of U.S. embassy in Paraguay); Paraguay Angered by US Execu-
tion, BBC News, Apr. 15, 1998, available at http://news.bbc.co.
uk/1/hi/world/americas/78602.stm (last visited Dec. 21, 2005) (docu-
menting public outcry and inundation of radio channels in Paraguay
with angry calls); Adam E. Jacobs & Mark A. Berman, Rediscovering
the Right to Consul, N.J. L.J., Mar. 2, 1998, at 32 (describing demon-
stration in front of U.S. Consulate in Ecuador); Texas Executes a
Mexican Killer, Raising a Furor Across the Border, N.Y. Times, Mar. 26,
1993, at A15 (describing protests). After Arizona executed Jose Roberto
Villafuerte, a Honduran national, 500 Hondurans protested at the U.S.
Embassy in Tegucigalpa, and Honduran newspapers reported retalia-
tory threats against the lives of U.S. citizens in Honduran prisons.
Nicaragua Solidarity Network of Greater New York, Hondurans Protest
Execution in U.S., Weekly News Update on the Americas, Apr. 26, 1998,
available at http://www.tulane.edu/~libweb/RESTRICTED/WEEKLY/
1998 _0426.txt (last visited Dec. 21, 2005). In 1999, to protest the
execution of a Canadian who had been denied his rights under the
VCCR, local activists planned demonstrations and other organized
protests, including letter-writing campaigns and threatened economic
boycotts. U.N. Official Frets over Canadian’s Texas Execution; Ottawa
Steps Up Bid To Spare Albertan Convicted of Murder, Toronto Star, Nov.
26, 1998, at A9; Texas Embroiled in International Legal Rights Dispute
Over Preparations To Execute a Canadian Citizen (NPR Morning
Edition broadcast, Dec. 9, 1998); Diplomats CCA Brief at 22 & n.31.

* During public demonstrations in front of the U.S. embassy in
Honduras to protest the execution of a Honduran who had not been
given timely access to the consular officials, more than 4000 U.S.
personnel, including diplomatic staff, had to be protected by armed
security. See U.S. Boosts Security in Honduras As Tempers Flare,
Reuters, Apr. 24, 1998; Stout, supra note 23. After the execution of
Tristan Montoya, a Mexican who had been denied his rights under the
VCCR, Mexicans issued death threats and U.S. tourists were given
warnings to stay out of certain areas. Armando Villafranca, Life and
Death Chasm, Hous. Chron., Sept. 28, 1997, at Al.

17

As U.S. diplomats, Amici have sought fully to dis-
charge U.S. responsibilities under the VCCR to encourage
the fullest reciprocal protection for American citizens who
are detained while living or traveling abroad.” For the
same reason, for more than half a century, the United
States has vigorously protected its right of consular access
to American citizens held abroad through the ICJ.” To
protect our own nationals, the United States expects to
gain consular access within seventy-two hours for any and
all U.S. citizens and diplomats who are taken into foreign
custody. U.S. Department of State, Consular Notification
and Access, Part 3: FAQs, available at http://travel.
state.gov/law/consular/consular_748.html (last visited Dec.
19, 2005). It would be all too easy for foreign governments
to ignore those requests if U.S. courts could simply refuse
to respect the VCCR at home, in the face of a directly
applicable treaty interpretation rendered by the ICJ.

” In a 1975 telegram to the Syrian Embassy, the State Department
confirmed that the United States’s willingness to provide consular
access to foreign nationals rests in good measure upon expectations of
reciprocity from our treaty partners. See Damascus Telegram, as
reprinted in Lee, supra note 14 (“The recognition of these rights is
prompted in part by considerations of reciprocity. ... The Government
of the Syrian Arab Republic can be confident that if its nationals were
detained in the United States the appropriate Syrian officials would be
promptly notified and allowed prompt access to these nationals.”).

* As early as 1954, the United States sought to bring suit in the
ICJ against Hungary, challenging Hungary’s failure to provide consular
access before trial to four U.S. airmen whose plane had been shot down.
See Treatment in Hungary of Aircraft and Crew of the United States of
America (U.S. v. Hung.), 1954 ICJ Pleadings 19-20, 31, 35-36. The suit
was eventually dismissed for lack of jurisdiction over Hungary, which
had not yet signed the Optional Protocol. 1954 ICJ 99 (July 12); see also
Case Concerning United States Diplomatic and Consular Staff in
Tehran (U.S. v. Iran), 1980 1.C.J. 3 (May 24).

18

II. State Courts Disrupt the Diplomatic Interests
of the United States When They Ignore the
ICJ’s Rulings That Article 36 of the VCCR Cre-
ates Judicially Enforceable Individual Rights
That Must Be Given Full Effect Despite Local
Procedural Bars.

A. The ICJ’s Ruling Regarding Enforceable
Rights Benefits U.S. Diplomatic Interests
by Promoting Stricter Enforcement of the
VCCR.

The ICJ has repeatedly and explicitly held that the
VCCR creates « judicially enforceable individual right.” In
so holding, the ICJ specifically rejected claims by the
United States that the rights in question are somehow
rights of States and not individuals. In LaGrand, for
example, the ICJ carefully read the text, history, negotia-
tions, and practical construction adopted by the parties to
the VCCR to conclude “that [VCCR] Article 36, paragraph
1, creates individual rights, which, by virtue of Article 1 of
the Optional Protocol, may be invoked in this Court by the
national State of the detained person.”

Notwithstanding that declaration, the Oregon Su-
preme Court invoked a broad “presumption against the
creation of individual, judicially enforceable rights” by means
of treaties. State v. Sanchez-Llamas, 108 P.3d 573, 576 (Or.
2005). In fact, the VCCR gives rise to no such presumption.
This Court has long recognized that self-executing treaties

* See supra Part I; see generally Mark J. Kadish, Article 36 of the
Vienna Convention on Consular Relations: A Search for the Right to
Consul, 18 Mich. J. Int] L. 565, 596 (1997) (concluding from an
examination of the travaux preparatoires of the VCCR that the general
intent of the drafting parties in Article 36 was to create individual
rights).

* LaGrand, at 477; see also id. I] 38, 42, 74, 78, 126; Avena, at
77 35, 40, 124, 139-40 (rejecting U.S. position that Article 36 rights are
not individual rights).

19

may create judicially enforceable individual rights.”
During the Senate hearings on the VCCR, the State
Department advised the Senate that the “Convention is
considered entirely self-executive and does not require any
implementing or complementing legislation.’ The ICJ
rulings in LaGrand and Avena therefore define self-
executing treaty obligations of the United States, which
are the supreme law of the land under Article VI of the
U.S. Constitution, and-hence binding rules of decision to
be applied by all state courts acting upon legal claims of
the kind at issue here.”

Requiring the several States to recognize Petitioners’
individual rights would plainly advance U.S. diplomatic
interests. Ever-increasing numbers of Americans work and
travel abroad each year, in an expanding array of foreign
countries. As of 2004, over 160 countries were signatories
to the VCCR.™ State-to-state enforcement of the VCCR
through the already overburdened diplomatic process
necessarily provides only partial protection to American

" Cf. United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (if
a treaty “is self-executing, it would appear that a court must enforce it
on behalf of an individual regardless of the offensiveness of the practice
of one nation to the other nation”); accord Sosa v. Alvarez-Machain, 542
U.S. 692, 727, 734-35 (2004) (distinguishing rights under a treaty that
the political branches have declared to be non-self-executing, and those
under a self-executing treaty such as the VCCR).

* Sen. Exec. Rep. 91-9, at 5 (statement of J. Edward Lyerly,
Deputy Legal Advisor for Administration of the State Dep’t); see also
Restatement (Third) of the Foreign Relations Law of the United States,
Intro. Note preceding § 464 (3d ed. 1987).

* When ratification of the VCCR was pending, the Senate asked:
“What is the effect of the convention on (a) Federal .egislation; and (b)
State laws?” The State Department answered, in re evant part: “To the
extent that there are conflicts with Federal legislation or State laws the
Vienna Convention, after ratification, would govern as in the case of
bilateral consular conventions.” Sen. Exec. Rep. No. 91-9, at 18.

“ See Status of Multilateral Treaties Maintained by the U.N.
Secretary General, available at http://untreaty.un.org/sample/English
InternetBible/partl/chapterIII/treatyb.asp (last visited Dec. 18, 2U05).

20

citizens traveling abroad. The ICJ’s construction of Article
36 of the VCCR to require judicially enforceable individual
rights preserves diplomatic relations by enabling detained
Americans to use private enforcement in lieu of, or as a
supplement to, this overextended diplomatic process.

The high priority that the President has placed on
defeating international terrorism and protecting national
security requires governments and their respective intelli-
gence agencies to cooperate closely through diplomatic
channei.. Yet when the several States refuse to respect our
consular obligations, it is only a matter of time before
those- diplomatic relations become strained. Americans
detained abroad are far less likely to receive their consular
rights when the country detaining them can charge the
United States with having failed to comply with its own
diplomatic obligations.” For a state court to refuse to
acknowledge that the VCCR provides a judicially enforce-
able individual right undermines the effective enforcement
of the VCCR, and places even more pressure on over-
worked American diplomats.

It is for these reasons, among others, that other
national courts - in Germany and Canada, for example —
have accepted as binding the ICJ’s interpretation that the
VCCR creates judicially enforceable individual rights.
Bundesgerichtshof [BGH] [Federal Court of Justice] Nov.

“ For example, in 1995, an American citizen, Harry Wu, was
arrested in China, charged with espionage, and held incommunicado for
over a week. U.S. State Department attempts to gain access to Mr. Wu
were rebuffed by China on the pretexi that, on at least two prior
occasions, U.S. authorities had failed to comply with a minor provision
of the U.S.-China Consular Convention far less important than VCCR
Article 36 (the requirement that each party report the death of any
foreign national to the deceased’s consulate). U.S, Says China Misled It
on Scholar’s Whereabouts; Envoy Says He Took 12-Hour Taxi Ride in
Remote Region Based on Misinformation, S.F. Examiner, July 4, 1995,
at Al2 (noting the Wu situation had harmed U.S.-China relations);
Transcript of U.S. State Dep’t Press Briefing, July 6, 1995, 1995 WL
407848, at *12-14 (F.D.C.H.) (State Dep’t Spokesman Nicholas Burns).

21

7, 2001, 5 Entscheidungen des Bundesgerichtshofes in
Strafsachen (BGHSt] 116 (F.R.G.),; Regina v. Partak,
[2001) 160 C.C.C.3d 553, 99] 25-26 (Ont. Super. Ct.) (Can-
ada), available at 2001 CarswellOnt 4954 (Westlaw).
Moreover, in its first encounter with this question, this
Court acknowledged that the VCCR “arguably confers on
an individual the right to consular assistance following
arrest.” Breard, 523 U.S. at 376. Following Breard, the
lower courts have generally assumed, for the purposes of
the cases before them, that a judicially enforceable indi-
vidual right exists.” In erroneously rejecting the enforce-
ability of Article 36 rights, the Oregon Supreme Court
thus acted inconsistently not just with the binding and
supreme law of the land, but also with the clear thrust of
precedents of this Court and other lower courts.

B. The ICJ’s Refusal To Recognize State Pro-
cedural Bars Benefits U.S. Diplomatic In-
terests.

In Bustillo, the Virginia court held that a state proce-
dural default rule could be applied to foreclose a VCCR
claim. But the VCCR is precisely the kind of treaty that
the Framers had in mind when they chose to render
treaties supreme over inconsistent state law. Virginia’s
and Oregon’s noncompliance with the ICJ’s ruling in Avena
defies the authority of the federal government to bind the
States to international obligations. Left unchecked, the
persistent failures of Virginia, Oregon, and other States of
the Union to comply with Avena’s interpretation of the

* See, e.g., United States v. Lombera-Camorlinga, 206 F.3d 882
(9th Cir. 2000); United States v. Chaparro-Alcantara, 37 F. Supp. 2d
1122, 1125 (C.D. Tl. 1999) (“In light of the language in Article 36 and
the above cited authority, the Court finds that [defendants] have an
individual right to consular notification under Article 36 which in turn
grants them standing to object to a violation of that provision.”); State v.
Lopez, 633 N.W.2d 774, 783 (lowa 2001) (collecting cases).

22

VCCR will inevitably alienate this nation from its closest
allies.

The ability of the United States to present a credible
diplomatic face to the world turns critically upon the
national government’s ability to make authoritative
commitments to international agreements. For that
reason, this Court repeatedly has recognized that “[nJo
State can rewrite our foreign policy to conform to its own
domestic policies.” United States v. Pink, 315 U.S. 203, 233
(1942); see also id. (“Power over external affairs is not
shared by the states; it is vested in the national govern-
ment exclusively.”); Crosby, 530 U.S. at 377 (“Quite simply,
if the [state] law is enforceable the President has less to
offer and less economic diplomatic leverage as a conse-
quence.”). Under the Articles of Confederation, the Conti-
nental Congress possessed the treaty power, but could not
effectively enforce treaty obligations upon the States.” As
a result, States were able to undermine agreements
negotiated on behalf of the United States as a whole -
leading to international skepticism of the fledgling United
States as a dependable treaty partner.

In responding to the diplomatic paralysis resulting
from the diverging state stances on foreign policy, the
Framers specifically included treaties under the Suprem-
acy Clause of the Constitution as part of the “Supreme
Law of the Land,” U.S. Const. art. VI, cl. 2. By so doing,

” Article IX of the Articles of Confederation granted Congress sole
and exclusive power to make treaties and alliances, but subject to the
restriction “that no treaty of commerce shal] be made whereby the
legislative power of the respective States shall be restrained from
imposing such imposts and duties on foreigners, as their own people are
subjected to, or from prohibiting the exportation or impo. tation of any
species of goods or commodities whatsoever.” Articles of Confederation
and Perpetual Union, art. IX. The Continental Congress, however, had
no authority to regulate interstate or foreign commerce. See id. art. Il
(“Each state retains its sovereignty, freedom, and independence, and
every power, jurisdiction, and right, which is not by this Confederation
expressly delegated to the United States, in Congress assembled.”).

_~

23

the Framers sought to guarantee, in John Jay’s words,
that “treaties ... will always be expounded in one sense
and executed in the same manner — whereas adjudications
on the same points and questions, in [the several] States,
... will not always accord or be consistent.”

In Avena, the ICJ noted that nine States had violated
Article-36(1) of the VCCR a total of fifty-one times by
failing to provide detained Mexican nationals with their
consular rights under the treaty. See Avena at { 15. These
violations have damaged relations between the United
States and its closest allies.”

The ICJ consistently has ruled that the application of
procedural default rules to prevent individuals from raising
claims under Article 36(1) of the VCCR violates Article 36(2)
of the VCCR, which requires states to give “full effect” to the
consular rights enumerated in Article 36(1). This Court’s
failure to direct the several States to adhere to the ICJ’s
interpretation of Article 36 would allow those States to
undermine the United States’ diplomatic credibility and
prevent the United States from speaking with one voice.

Allowing individual States to apply procedural bars to
block the effective implementation of Article 36 rights

* The Federalist No. 3, at 15 (John Jay) (Robert Scigliano ed.,
2000).

* Officials of our nearest neighbors have openly declared that the
failure of American state authorities to provide their nationals with
timely consular access has “strain|ed]” bilateral relations. Raymond
Bonner, U.S. Bid To Execute Mexican Draws Fire, N.Y. Times, Oct. 26, .
2000, at A20 (quoting Jorge G. Castaneda, foreign policy advisor to
Mexican President Fox). In 2002, even before the ICJ issued its final
judgment in Avena, Mexican President Vicente Fox even took the
extraordinary step of canceling a trip to President Bush's Texas ranch
as “‘an unequivocal signal of rejection of the execution’” of a Mexican
national who had not been informed of his consular rights. Knowlton,
supra note 25, at 1 (quoting President Fox’s representative); see also
Nickerson, supra note 25, at A2 (describing statements by Canadian
government officials responding to execution of Canadian citizen
Stanley Faulder who had been denied consular rights).

24

would undermine the safety of Americans living and
traveling abroad. There are currently at least twenty-five
nations” — presiding over one-third of the world’s popula-
tion” — that have federal systems with diverse state laws,
courts and procedures. If states and provinces in each of
these countries could invoke local procedural bars to
excuse noncompliance with the VCCR, as Virginia and
Oregon have done here, the protections afforded by that
treaty to detained American citizens would quickly become
meaningless.

As diplomats, Amici have struggled to secure the
States’ cooperation in implementing VCCR obligations. In
1998, Secretary of State Madeleine Albright, a signatory to
this Brief, wrote to the Governor of Virginia with regard to
Angel Francisco Breard, a Paraguayan national for whom
the ICJ granted a provisional measure directing the
United States to stay his execution because Virginia
officials had ignored his VCCR rights.“ In requesting that
the Governor exercise his powers to stay Breard’s execu-
tion, Secretary Albright explained that she was “‘particu-
larly concerned about the possible negative consequences

“ Argentina, Australia, Austria, Belgium, Bosnia & Herzegovena,
Brazil, Canada, Comoros, Ethiopia, Germany, India, Malaysia, Mexico,
Micronesia, Nigeria, Pakistan, Saint Kitts & Nevis, Serbia & Montene-
gro, South Africa, Spain, Switzerland, Russia, United Arab Emirates,
United States, Venezuela. See U.S. Department of State, Country
Background Notes, available at http://www.state gov/r/pa/ei/bgn/ (last
visited Dec. 19, 2005). Indeed, the recently formed Republic of Iraq may
soon become the newest member of the community of federalist nations
and is one country in which a large number of Americans are almost
certain to be present in the near future.

“ Objectives, Center for the Study of Federalism, Temple Univer-
sity, at http://www.temple.edu/federalism/objectives.htm] (last visited
Dec. 18, 2005).

© Letter from Madeleine K. Albright, U.S. Secretary of State, to
James S. Gilmore III, Governor of Virginia (Apr. 13, 1998), quoted in
Jonathan I. Charney & W. Michael Reisman, Agora: Breard, 92 Am. J.
Int'l L. 666, 671-72 (1998).

25

of the execution] for the many U.S. citizens who live and
travel abroad.’™ It is precisely to ensure that foreign
provinces cannot claim a right to violate national obliga-
tions that the State Department has since taken such
great pains to instruct state and local law enforcement
officials on the issue of consular notification.

Failure to hold the several States accountable for U.S.
obligations under international law would set a dangerous
precedent. As the first country designed on federalist
principles, the United States historically has served as a
model for many other nations. Indeed, many of these
nations are seeking to reconcile their international obliga-
tions with their federal structures and continue carefully
to observe U.S. practices.‘ A government’s capacity to
ensure the reciprocity critical to international cooperation
among nations is only as strong as the compliance that
those national governments can obtain from their feder-
ated parts.“ This Court should not allow the several

* Id. “*The execution of Mr. Breard in the present circumstances,’”
Secretary Albright observed, “‘could lead some countries to contend
incorrectly that the U.S. does not take seriously its obligations under
the Convention’” and “‘could be seen as a denial by the United States
of the significance of international law and the Court’s processes in its
international relations and thereby limit our ability to ensure that
Americans are protected when living or traveling abroad.’” Jd.

“ For example, Brazil recently passed a constitutional amendment
that allows the Attorney General to “federalize” state court cases
involving human rights violations. The relevant amendment states that
this power shall be exercised in order to assure the fulfillment of
obligations incurred by the Brazilian government through international
human rights treaties. Emenda Constitucional No. 45, de 30 de
dezembro de 2004, available at https://www.planalto.gov.br/ccivil_03/
Constituicao/Emendas/Emc/emc45.htm#art109 (last visited Dec. 19,
2005) (author’s translation).

“ In India, for example, the laws of five states on “religious
conversion” have so affected the work of Christian missionaries that the
State Department’s Consular Information Sheet for India specifically
warns Americans who wish to engage in missionary activities in these
states to seek legal advice regarding the state legislation. See U.S.

(Continued on following page)

26

States to erect parochial legal barriers that would render
meaningless our foreign policy objectives and internatianal
obligations.

III. Allowing State Courts To Refuse To Enforce the
Avena Ruling Also Would Damage U.S. Foreign
Policy Interests Governed by Other Treaty Re-
gimes.

As U.S. diplomats, Amici consistently have sought to
ensure the proper functioning of the international treaty
regimes to which the United States is a party. Amici
believe that the state courts’ failure to respect the ICJ’s
determinations in this context will threaten U.S. commer-
cial and economic interests in other treaty regimes.

The ICJ dispute-settlement provisions in the VCCR
are not sui generis. After World War II, when international
trust and diplomacy were at a low ebb, the United States
took the initiative to establish numerous treaties with its
former enemies that resolved disputes through biiuding
decisions of the ICJ.“

In return for our commitment to abide by ICJ judg-
ments, the United States gained not only the cooperation
of other states, but also a powerful diplomatic tool for
encouraging non-judicial resolution of disputes.” Even

Department of State, Consular Information Sheet: India, Aug. 24, 2005,
available at http//travel.state.gov/travel/cis_pa_tw/cis/cis_1139.htm] (last
visited Dec. 19, 2005).

“ See, e.g., Treaty of Friendship, Commerce and Navigation, Feb.
2, 1948, U.S.-Italy, art. XXVI, 63 Stat. 2255, 2294; Treaty of Friendship,
Commerce and Navigation, Oct. 29, 1954, U.S.-F.R.G., art. XXVII, 7
U.S.T. 1839, 1867; Treaty of Peace with Japan, Sept. 8, 1951, art. 22, 3
U.S.T. 3169, 3188-89.

” Indeed, “[mJany cases are settled before a final judgment is
reached,” giving the [CJ “an important ‘pacifying effect’ on disputes at
all stages of litigation.” Colter Paulson, Compliance with Final Judg-
ments of the International Court of Justice Since 1987, 98 Am. J. Int’! L.
434, 436 (2004).

27

nations with longstanding histories of extreme hostility
toward one another have reached agreement on serious
diplomatic disputes after referral (or threat of referral) to
the ICJ.“

The “mutuality and reciprocity” that forms the foun-
dation of international relations is particularly critical for
the effective operation of our nation’s commercial and
economic treaties. See generally United States v. Arjona,
120 U.S. 479, 487 (1887) (“[I]nternational law obligations
are of necessity reciprocal in nature.”). The continuing
ability of the United States to secure international treaty
regimes vital to the realization of our national interests
throughout the world, and to secure reliable enforcement
of those regimes already in place, depends directly upon
our reputation for honoring the international obligations
that we undertake.

The last half of the twentieth century has witnessed
the direct application of international trade agreements to
a multitude of commercial relationships between individu-
als and nations. A vast array of agreements dealing with
international trace and foreign investment now call for
binding arbitration or resort to permanent international
tribunals to resolve intractable disputes. Moreover, many
important economic treaties vest compulsory jurisdiction
in the ICJ, including international sovereign disputes

“ See, e.g., Trial of Pakistani Prisoners of War (Pak. v. India), 1973
i1.C.J. 328 (July 13), and 1973 I.C.J. 347 (Dec. 15) (dispute settleu out of
court). For example, when the United States inadvertently downed an
Iranian civilian airliner, killing 290 passengers and crew, despite our
strained diplomatic relations, Iran sought a peaceful solution by
bringing suit before the ICJ, and the parties ultimately were able to
achieve a negotiated settlement. Aerial Incident of 3 July 1988 (Iran v.
U.S.), 1989 1.C.J. 132 (Dec. 13), and 1996 I.C.J. 9 (Feb. 22).

28

ranging from the internaticnal recognition of copyrights”
and patents” to the transport of goods by air.”

The United States has also agreed to submit to the
jurisdiction of other binding arbitration mechanisms to
protect U.S. trade and investment interests. Of most
recent significance to commercial interests are Chapter 11
of the North American Free Trade Agreement (“NAFTA”)”
and the Understanding on Rules and Procedures Govern-
ing the Settlement of Disputes (“DSU”) of the World Trade
Organization (“WTO”).” Together, NAFTA and the WTO
grant private interests and sovereign nations, respectively,
compulsory resort to binding arbitral tribunals.

The benefits stemming from these treaties and their
binding dispute-resolution mechanisms are not illusory.
Since 1996, American investors have initiated arbitral
proceedings under NAFTA against the government of Can-
ada at least eight times, and against the government of
Mexico at least twelve times, with at least five of those cases
resulting in compensation for the American investors, while

“ Universal Copyright Convention, art. XV, opened for signature
Sept. 6, 1952, art. XV, 6 U.S.T. 2731, 2743, 216 U.N.T.S. 132, 146.

© Patent Cooperation Treaty, art. 59, opened for signature June 19,
1970, 28 U.S.T. 7645, 7708, 1160 U.N.T.S. 231, 262.

* International Air Transport Agreement, art. IV, § 3, opened for
signature Dec. 7 1944, 3 Bevans 922, 925, 84 U.N.T.S. 389, 394; see also
Convention on International Civil Aviation, ch. XVIII, art. 84 opened for
signature Dec. 7, 1944, 3 Bevans 944, 966, 15 U.N.T\S. 295, 352.

“ North American Free Trade Agreement, U.S.-Can.-Mex., ch. 11,
Dec. 17, 1992, 32 1.L.M. 605, 639 (1993).

“ In the DSU, WTO members agree to submit to binding arbitra-
tion of certain trade disputes, and are under an obligation “to have
recourse to and abide by the rules and procedures” of the DSU. Under-
standing on Rules and Procedures Governing the Settlement of
Disputes, art. 23(1), in Final Act Embodying the Results of the Uruguay
Round of Trade Negotiations, Marrakesh, Apr. 15, 1994, 33 I.L.M. 11265,
1241 (1994).

29

six of the cases remain pending.” Similarly, 74 of the 324
disputes that have been initiated before WTO tribunals
were brought by the United States as a complainant.”

There is no guarantee that the diplomatic fallout from
the several States’ ongoing flouting of the ICJ and the
VCCR can be limited to those settings. We cannot expect
other nations to abide by the judgments of international
dispute-resolution and arbitral bodies, if our state courts
regularly fail to accord comity and respect to the ICJ’s
treaty interpretation in LaGrand and Avena. Condoning
the failure of the several States to comply with the treaty
interpretation in Avena would damage U.S. interests
under numerous treaty regimes that ensure the security of
our citizens and safeguard our commercial interests, as
well as undermine the United States’s ability to negotiate
new diplomatic covenants.

“ For a list of NAFTA Chapter 11 cases, see NAFTA Investor-State
Arbitrations, at http://www.state.gov/s/1/c3439.htm (last visited Dec. 18,
2005), and NAFTA-Chapter 11-Investment, at http://www.dfait-maeci.ge.
ca/tna-nac/NAFTA-en.asp (last visited Dec. 18, 2005). See also Dep't of
Transp. v. Public Citizen, 541 U.S. 752, 760 (2004) (recognizing U‘S.
adherence to the decision of a NAFTA arbitration panel); Canada v.
S.D. Myers, Inc., [2004] F.C. 38, [9 37, 39 (affording a “high level of
deference” to a NAFTA Tribunal in affirming a $7 million award to an
American investor against the Canadian government, “so as to be
sensitive to the need of a system for predictability in the resolution of
disputes”).

* See, e.g., Panel Report, European Communities - Regime for the
Importation, Sale, and Distribution of Bananas, WT/DS27/R/USA (May
22, 1997) (complaint by the United States); Panel Report, European
Communities - Measures Concerning Meat and Meat Products,
WT/DS26/R/USA (Aug. 18, 1997) (complaint by the United States). For
a list of past and pending DSU cases, see WTO, Chronological List
of Dispute Cases, at http://www.wto.org/english/tratop_e/dispu_e/dispu_
status_e.htm (last visited Dec. 18, 2005).

30

CONCLUSION

In cases such as this, this Court should look beyond
narrow U.S. interests to the “mutual interests of all
nations in a smoothly functioning international legal
regime” and, whenever possible, should “consider if there
is a course that furthers, rather than impedes, the devel-
opment of an ordered international system.” For the
foregoing reasons, Amici urge the Court to find that the
nation’s diplomatic, commercial, and economic interests
will best be served by directing the state courts whose
decisions are under review to adhere faithfully to the ICJ’s
interpretation of Article 36, as set forth in the LaGrand
and Avena decisions.

Respectfully submitted,
JOSHUA RATNER HAROLD HONGJU KOH
Of Counsel Counsel of Record
WIGGIN AND DANA LLP ALLARD K. LOWENSTEIN
400 Atlantic Street INTERNATIONAL HUMAN
P.O. Box 110325 RIGHTS CLINIC:
Stamford, CT 06911-0325 NATIONAL LITIGATION PROJECT
(203) 3€3-7635 Yale Law School
127 Wall Street

New Haven, CT 06511
(203) 432-1660

December 22, 2005 Counsel for Amici Curiae

* Societe Nationale Industrielle Aerospatiale v. United States Dist.
Court, 482 U.S. 522, 555, 567 (1987) (Blackmun, J., concurring in part
and dissenting in part).

la

Madeleine K. Albright served as U.S. Secretary of State
from 1997-2001 and as U.S. Ambassador and Permanent
Representative to the United Nations from 1993 to 1997.

Morton Abramowitz, a Career Ambassador, served as
Assistant Secretary of State for Intelligence and Research,
U.S. Ambassador to the Mutual and Balanced Force
Reduction Negotiations in Vienna, U.S. Ambassador to
Turkey and Thailand, and Deputy Assistant Secretary of
Defense for Inter-American, East Asian and Pacific Af-
fairs.

Stephen W. Bosworth served as U.S. Ambassador to the
Republic of Korea, the Philippines, and Tunisia, Director
of the State Department Policy Planning Staff, Principal
Deputy Assistant Secretary for Inter-American Affairs,
and Deputy Assistant Secretary for Economic Affairs.

Jeffrey Davidow, a Career Ambassador, served as U.S.
Ambassador to Mexico, Zambia, and Venezuela. From
1996 to 1998, he was Assistant Secretary of State for
Inter-American Affairs.

Herbert J. Hansell served as the Legal Adviser of the
U.S. Department of State from 1977 to 1979, Member of
the Permanent Court of Arbitration, The Hague, from
1978 to 1980, and Senior Adviser and Ambassador to the
Mideast Peace Negotiations in 1980. He served as Adviser
to the United States Trade Representative on interna-
tional investment in 1980, and as Adviser to the American
Law Institute Restatement of the Foreign Relations Law
of the United States.

James C. O’Brien served as Special Presidential Envoy
for the Balkans from 2000 to 2001, as Principal Deputy
Director of the State Department Policy Planning Staff

2a

from 1998-2000, and as a State Department official from
1989 to 2001.

Thomas R. Pickering served as Under Secretary of State
for Political Affairs from 1997 to 2001, and was the U.S.
Ambassador and Permanent Representative to the United
Nations from 1989 to 1992. A Career Ambassador, during
his diplomatic career he also served as Assistant Secretary
of State for Oceans, Environment and Science, U.S. Am-
bassador to The Russian Federation, India, Israel, El
Salvador, Nigeria, The Hashemite Kingdom of Jordan, and
as Executive Secretary of the Department of State and
Special Assistant to the Secretary.

Wendy R. Sherman served as Counselor of the Depart-
ment of State, Special Advisor to the President and Secre-
tary of State on North Korea, and Assistant Secretary of
State for Legislative Affairs. ~

Nancy Soderberg served as Deputy Assistant to the
President for National Security Affairs and as the US.
Ambassador and Representative for Special Political
Affairs at the United Nations.

Strobe Talbott served as Deputy Secretary of State from
1994 to 2001, and Ambassador-at-Large and Special
Advisor to the Secretary of State for the former Soviet
Union from 1993 to 1994.

Frank G. Wisner, a Career Ambassador, served as U.S.
Ambassador to India, the Philippines, Egypt, and Zambia.
He also served as Under Secretary of Defense for Policy,
Under Secretary of State for International Security Af-
fairs, and Senior Deputy Assistant Secretary of State for
African Affairs.

Q
Nos. 04-10566 and 05-51 DEC 22 2005

OFFICB OF THE CLERK,
aE

IN THE

Supreme Court of the United States ae

MOISES SANCHEZ-LLAMAS,
Petitioner,
v.

STATE OF OREGON,
Respondent.

MARIO A. BUSTILLO,
- — Petitioner,
v,

GENE M. JOHNSON,
Director of the Virginia Department of Corrections,

Respondent.

On Writs OF CERTIORARI TO THE
SUPREME COURTS OF OREGON AND VIRGINIA

Brier OF INTERNATIONAL Court OF Justice ExPerts
As Amici CurtAE IN Support OF PetitTIONERS

Of Counsel: Lori FisLER DAMROSCH

CHARLES OWEN VERRILL, JR. Counsel of Record
Joun B. Reynotps III 435 West 116" Street

Wirey Rew & Fietpinc LLP New York, NY 10027
1776 K St., N.W. (212) 854-3740
Washington, D.C. 20006
(202) 719-7000

Attorneys for Amici Curiae

198556 cr

COUNSEL OT R——
(80U) 274.3321 + (800) 359-6859

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ..............

INTEREST OF THE AMICI CURIAE .............

SUMMARY OF ARGUMENT ..................

, PUPTTETUTTTT TTC TIT TTT TT TTT

I.

THE IC) HAS AUTHORITATIVELY
DETERMINED THE INTERPRETATION
AND APPLICATION OF THE VIENNA
CONVENTION FOR PURPOSES OF THE
QUESTIONS PRESENTED IN THESE
PEE i Scbecdescnensveavelsecacks

A. Petitioners Are Foreign Nationals

Covered By The Vienna Convention
Whose Rights Under The Convention
SN COREE Kuo ceed keds veerdess

The LaGrand And Avena Judgments
Establish That The Vienna Convention
Confers Individual Rights To Be
Enforced In Domestic Judicial
POU: 5 6a cere odsckedeos cdve

The ICJ Has Held That Applications Of
The Procedural Default Rule To Prevent
Adjudication Of Whether An Individual
Has Been Prejudiced By A Treaty
Violation Are Incompatible With The
PE. Ch nekdeeieeeeeeteetewabaswes

I.

il

Contents

D. The [Cj Has Held That The Remedy

Required By The Vienna Convention
For Violations Is Review And
Reconsideration Of Convictions And
Sentences-In Circumstances Like Those
Of Petitioners, Involving “Severe
ae

LAGRAND ANDAVENA RESULTED FROM
A TREATY-BASED DISPUTE SETTLEMENT
PROCESS TO WHICH THE UNITED
STATES AGREED, IN WHICH THE
UNITED STATES PARTICIPATED FULLY,
AND WHICH SPECIFIES TREATY
OBLIGATIONS FOR THE UNITED STATES
SPO CEs $4. dap deen eesevksskaseacys

A. The Vienna Convention Establishes
Uniform Consular Standards. ........

The United States Consented To IC]
Jurisdiction To Decide Disputes Under
The Vienna Convention And Is
Therefore Required To Give Effect To
The Resulting Interpretation Of The
Disputed Treaty Provisions. .........

Withdrawal From The Optional
Protocol Does Not Affect The U.S.
Obligation To Abide By The Vienna
Convention As Interpreted In LaGrand
SI, Sacdy cdndscsdcesseuceneus

Page

11

11

13

19

iit

Contents
Page

‘D. The Vienna Convention As Interpreted
In LaGrand And Avena Binds The Courts
And Is To Be Implemented Through
OS re ere er 20

Ill. THIS COURT SHOULD TREAT LAGRAND
AND AVENA AS THE BASIS FOR THE
RULE OF DECISION FOR STATE COURTS,
WITHOUT REGARD TO EXECUTIVE
BRANCH POSITIONS INCOMPATIBLE
WITH THE ICJ’S INTERPRETATION.
POTEET Pero TTT eT CET CL TTT TTT TTT TT 24

A. LaGrand And Avena Establish The Basis.
For The Rule Of Decision Applicable In
All Vienna Convention Cases Involving
"OVERS TOMO onc cece cecesesh 24

B. This Court Should Decide The Meaning
And Effect Of The Vienna Convention
In Light Of LaGrand And Avena, Even If
That Decision Differs From The
Positions Of The Executive Branch. ... 27

EE incu pee Ci dadcenédveedaseananed’ 30

APPENDIX - LIST OF AMICI .............. hess la

iv

TABLE OF CJTED AUTHORITIES

Page
CASES
Internationa! Court of Justice Cases
Aegean Sea Continental Shelf, 19781CJ3 .......... 27
Aerial Incident of 3 July 1988 (Iran v. U.S.),
SPUR URS ccviccovesenenesenccnchaennenceny 18
Aerial Incidents,
BOGE TL] FP CUS. V. POMS occ cccnccovcssonss 14, 18
1954 ICJ 103 (U.S. v. USSR); ...- 2... eee ee eee “18
BOGS FF O CUS. UV. CB cc ccc ccccevcccccevnes 18
BGGS FEF DEI D. V. UI cece csvcvcccsecvcns 18
BOGS TF BSS CID. ©. UIE oT ccc cccccssnce 18
BSGP TL B70 CG. 0. LRU ccc ccccccsvenceces 18
1960 009 1466 (US. v. Bale)... cc cccvccccnves 18
~ Arrest Warrant of 11 April 2000 (D.R. Congo v. Belg.),
SUMED ccccdcosccvcvesecd ts veseeueeneane 26
Avena and Other Mexican Nationals (Mex. v. U.S.),
yf eh Se PPT reTii passim
Elettronica SiculaS.p.A.(ELSI) \
(U.S. v. Italy),
POO ed OD cccsencsesccessaveeteceyeevnuee 15, 17
Fisheries (U.K. v. Nor.),
fh) SrrrTTrT TTT 26
Gulf of Maine (Delimitation of the Maritime Boundary
in the Gulf of Maine Area)
Man. JUS), IFG6 OS oo cc cncseccsscsewess 15, 17

Interhandel (Switz. v. U.S.),
2 8) Serr rrrrrTr cre Ty cr 18

Cited Authorities
Page

LaGrand (F.R.G. v. U.S.),
DEED auedcceheceeccssacececpessces passim

Legality of Use of Force (Yugo. v. U.S.),
PNUD cn eeScecsceccevcccccacececencce 18

Lockerbie (Questions of Interpretation and
Application of the 1971 Montreal Convention)
(Libya v. U.S.), 2003 IC] 152 ................... 18

Military and Paramilitary Activities
in and against Nicaragua
(Nic. v. U.S.), 1986 IC) 14 .............. 15, 16, 17, 21

Monetary Gold Removed from Rome in 1943
(Italy v. Fr., U.K., U.S.),
DE cechG@isteseccscdcawacenesscesucs 18

Nuclear Tests (Austl. & N.Z. v. Fr.),
i cies chutccnnccedsuceweses 16

Oil Platforms (Iran v. U.S.),
DT ccdebeeaSe6eaneeeresscecencnecss 18

Rights of Nationals of the United States
of America in Morocco (Fr. v. U.S.)
SE Cceenddateeheheenscdéecacencens 17

Treatment in Hungary of Aircraft
and Crew of the United States of America
CUS. V. Femme), TIS SD ow. wcrc ccs eeees 14

United States Diplomatic and Consular Staff in Tehran
(U.S. v. Iran), 1979 IC] 7, 1980 IC}3 ..... 14, 15, 28, 27

vi

Cited Authorities
Page
Vienna Convention on Consular Relations (Para. v.U.S.),
SOU UEED cccccesesececes besepepeasedee:s 18

Federal Cases

American Ins. Ass'n v. Garamendi,
Se es SEED « cc ccscccescccecsnses weeud 29

Asakura v. Seattle,
PEED 6c oc ccc ccennceneccesepsees 23

Baker v. Carr,
PES CIEE ccnscccccncsccscncsceaccns 29

Breard v. Greene,
Fe PE ED wove cnccudnenscanoenéanens 2,4,9

Bremen v. Zapata Off-Shore Co.,
Sr ee BNE cnc veccccusccdésecdscncteess 11,13

Charlton v. Kelly,
Ef Pere 28

Chirac v. Chirac,
15 U.S. (2.Wheat.) 259 (1817) .............065- 23

Clark v. Allen,
ee Sn ED vcd ccccccgencunscancacces 23

Committee of United States Citizens Living

in Nicaragua v. Reagan,
859 F.2d 929 (D.C. Cir. 1988) ................. 21

Conde v. Starlight I Inc.,
263 F.36 ZOO (0% Cie. BOBT)- .. wc crccccccccccees 17

vil

Cited Authorities
Page

Crosby v. Nat'l Foreign Trade Council,

DP SED 6 oc cbcicdcccccocccccesewes 29
Dames & Moore v. Regan,

Ss NEED oo vc dccecsénccasccevsneens 19, 29
In re Dillon,

7 Fed. Cas. 710 (No. 3914) (N.D. Cal. 1854) ..... 23
Factor v. Laubenheimer,

A EDs Cedeccocvsccccnvcesensees 28
Fairfax’s Devisee v. Hunter's Lessee,

11 US. (7 Cranch) 603 (1813) ................. 23
Foster & Elam v. Neilson,

Be Wh GE CUR NS GOED ccc cccccesccscccess 9
Hauenstein v. Lynham,

Be Os GED 0 woe ccc cvecscnescesescnces 23
Hines v. Davidowitz,

PEE WK GED occ ec cccsscescccsoucecesss 24
Japan Line, Ltd. v. County of Los Angeles,

ee TED cence bicdenesiceovasavedne 21
Kolovrat v. Oregon,

EO BE GUD ei cnscounccncccscosctsecs 23
La Abra Silver Mining Co. v. United States,

Se PED 0 hen vessccvccesnceseseecss 19

Medellin v. Dretke,
ED wa ddvcecsesenscuastadis 2, 11, 25

vill

Cited Authorities
Page

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

RPT 11, 13
Nielsen v. Johnson,

BP ee CONE 6 coves ccvesessccoussseeccens 23
Olympic Airways v. Husain,

Pe es GREED 0 cei ccencvescesessvsccaves 13
Perkins v. Elg,

Be DA GEER 6 cevccccecccesecescscseses 28
Republic of Austria v. Altmann,

fe BRPPPTT Tere eee 28
Sosa v. Alvarez-Machain,

Pee Os GE ED 0 oc ccccccccccseccecocccess 21, 28
United States v. Belmont,

Be GA SRO GPSED vo cv crocccccesesccvccsevcce 29
United States v. Louisiana,

Pe a BO GID ccc eccnccccccescceccsececsee 26
United States v. Louisiana,

PL CE 6 ace dwicavensceocvecsecokes 26
United States v. Maine,

PED ¢ ccb ds edvsescocscccceudenane 26
United States v. Percheman,

BE US. © PUR) GE GRGOD 0 ccc cccccccsccssccses 9

United States v. Pink,
BP ee SPEED cob vccvccescccesccussdsens 29

ix

Cited Authorities
Page

United States v. Rauscher,

Se ee EE cvocencvedadssnveséunes oo 23
Valentine v. United States ex rel. Neidecker,

IPE sh uncdconcnsncdenvecéuetaneoes 28-29
Ware v. Hylton,

ee Oe ee BES GPU oc be bisccccccevecens 23

State Cases

Commonwealth v. Hawes,

76 Ky. (13 Bush) 697 (1878) ................4. 24
Commonwealth v. Jerez,

390 Mass. 456, 457 N.E.2d 1105 (1983) ......... 23
Oregon v. Sanchez-Llamas,

338 Ore. 267, 108 P.3d 573 (2005) ............. 5
In re Zalewski,

ENED Sodene-eednsetceucdacseues 24

Foreign Cases

Comeau’'s Sea Foods Ltd. v. Canada

(Minister of Fisheries and Oceans),

[1992] 3 F.C. 54 (Can. Fed. Ct.), rev'd, [1995]

2 F.C. 467, aff'd, [1997] 1S.C.R.12............. 17
Mersey Seafoods Ltd. v. Minister of Nat'l Revenue,

[1985] 2 C.T.C. 2485 (Can. Tax Ct.) ............ 17

CONSTITUTIONAL PROVISIONS

U.S. Const. art. VI (Supremacy Ciause) .......... 3, 20

x

Cited Authorities
Page
TREATIES

Charter of the United Nations,
I, I i 14-15

Convention on the Physical Protection of Nuclear
Material, T.L.A.S. No. 11080 .................. 15

International Convention Against the Taking of
Hostages, T.I.A.S. No. 11081 ................. 15

Optional Protocol to the Vienna Convention on
Consular Relations Concerning the Compulsory
Settlement of Disputes, April 24, 1963, 21 U.S.T.

325, T.LA.S. No. 6820, 596 U.N.T.S. 487 ....... passim

Statute of the International Court of Justice,
TP Gdat, MTS CISA) onc cc cccccccscccses: 1, 15, 25-27

Vienna Convention on Consular Relations,
April 24, 1963, 21 U.S.T. 77, T.L.A.S. No. 6820,
I re an mae Bryne passim

STATUTES

Uruguay Round Agreements Act,
19 U.S.C. §§ 3501, 3512(b)(2) .........6- 0 eee 29

OTHER AUTHORITIES

Mohammed Bedjaoui, The Reception by National
Courts of Decisions of National Tribunals, in
INTERNATIONAL Law DECISIONS IN NATIONAL CourTs
335-371 (Thomas M. Franck & Gregory H. Fox
— ere hkbhh debedesbuanbiosk 26, 27

xi

Cited Authorities

Briefs for the United States as Amicus Curiae,
Medellin v. Dretke, 125 S.Ct. 2088 (2005); Ex Parte
Medellin (Ct. Crim. App. TX, Sept. 2, 2005) .....

George W. Bush, Memorandum of February 28, 2005

Goler Teal Butcher, The Consonance of U.S. Positions
with the International Court's Advisory Opinions,
in THE INTERNATIONAL CouRT OF JUSTICE AT A
Crossroapds 423 (Lori F. Damrosch ed., 1987)

Cr

Jonathan I. Charney, Disputes Implicating the
Institutional Credibility of the Court, in THE
INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS
288 (Lori F. Damrosch ed., 1987) ..............

115 Cong. Rec. 30997 (Oct. 22, 1969) .............

Dep’t of State Daily Press Briefing (Mar. 10, 2005),
at http:/ / www.state.gov/r/pa/prs/dpb/2005/
SD kusccuconscesncceeavssccesoveenss

Walter H. Faulkner (U.S. v. Mex.), Opinions of the
Commissioners Under the Convention
Concluded September 8, 1923 (1927) ..........

Terry D. Gill, International Court of Justice -
Diplomatic Protection - U.S.-Italian Treaty of
Friendship, Commerce and Navigation, 84 Am. J.
OT EL, DER BOE CEOOED ccc cccccccccensccccese

Tom Ginsburg & Riehard H. McAdams,
Adjudicating in Anarchy: An Expressive Theory of
International Dispute Resolution, 45 Wm. & Mary
Sey EE hod beVevveveerenssbaceses

Page

25, 28

15

16

20

19

12

17

16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0202%3A19. Public record. Not legal advice.