Amicus Curiae Brief — Sanchez-Llamas v. Oregon

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Cited Authorities

ANTONIO GOMEZ RoBLEDO, MExico Y EL ARBITRAJE

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G. Hackwortn, Dicest OF INTERNATIONAL Law (1942)

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Br., 1921), 6 U.N. Rep. Int’l Arb. Awards 85

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SHELDON B. Liss, A CENTURY OF DISAGREEMENT:

THE CHAMIZAL CONFLICT, 1864-1964 (1965)

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Se hs ie ED wot Vednebhdekedbaruneces’s

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Cited Authorities

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INTERNATIONAL Court, 1920-1996 (1997) ........

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INSTITUTIONS BEFORE Domestic Courts (1981)

MOHAMED SHAHABUDDEEN, PRECEDENT IN THE WorLD

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THE FINAL SETTLEMENT OF THE Pious FuNpD (1969)

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Controversy - A Note on International Arbitral

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International Court of Justice and the 1993/1999

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gg PPP ree eee

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1961-II Y.B. INT’. L. Comm’Nn 88-128 ..............

INTEREST OF THE AMICI CURIAE

Amici are professors and scholars of law expert in the fields

of international law, international dispute settlement, and the

application of international law by courts in the United States.’

(A List of Amici is set forth in the Appendix.) Amici are

experienced in the work of international tribunals, notably the

International Court of Justice (ICJ), and include former officials

of the U.S. Department of State who have represented the

United States at the IC]. Amict seek to present their views

concerning the significance of final judgments of the IC]

interpreting a treaty of the United States in proceedings in

which the United States participated fully, and the respect that

should be accorded to the IC)’s treaty interpretation by all

courts in the United States, in the context of petitions for review

and reconsideration of convictions of serious crimes (such as

murder) entailing severe penalties.

Amici limit their submission to issues of the IC]’s

interpretation of the treaty and rights that individuals may

assert under it in domestic courts; they do not address the

factual basis for petitioners’ claims. Amici are united in the

view that IC] judgments interpreting the treaty, rendered in

cases to which the United States was party, supply the basis

for rules of decision for courts in the United States to which

claims under the treaty may be presented; that state courts

are required to apply the treaty as interpreted by the ICJ; that

state procedural default rules cannot foreclose the exercise of

treaty rights to a hearing as held by the ICJ; and that petitioners

have the right to present their treaty-based claims before the

courts of Oregon and Virginia.

SUMMARY OF ARGUMENT

These consolidated petitions present questions concerning

the remedies to be accorded by state courts for violations of

the Vienna Convention on Consular Relations, in light of

authoritative rulings by the International Court of Justice on

the meaning of the Convention and how the United States is

"No party other than Amici and their counsel authored this brief in

whole or iri 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. Letters of consent to the filing of this amicus curiae brief are on file

with the Clerk of the Court.

required to apply it. This Court's disposition in Medellin v.

Dretke, 125 S.Ct. 2088 (2005), left undecided the underlying

issue of the reception into the U.S. legal system of the ICJ’s

decisions interpreting the treaty.

The Oregon and Virginia courts denied any remedy to

either petitioner, on the basis of erroneous views that the treaty

does not create individual rights enforceable in a domestic

judicial proceeding and that state procedural rules can

foreclose a well-founded treaty claim. In part, the error of the

courts below was based on what they understood to be the

import of Breard v. Greene, 523 U.S. 371 (1998), which in turn

was based on assumptions that had not had the benefit of

plenary briefing, at a time when the ICJ had not yet ruled on

questions of treaty interpretation that were properly presented

to it. Subsequent to Breard, the ICJ has clarified the nature of

the rights invocable under the treaty, the treaty-based

requirement of a judicial remedy for their violation, and the

proper relationship between the rights guaranteed by the

treaty and the procedural framework for their exercise under

local law. This Court should now revisit its Breard conclusions

and instruct the lower courts to allow petitioners to present

their treaty claims to the appropriate judicial bodies, free of

any misconceptions about the treaty-based rights and remedies

at issue and of the procedural obstacles that the [CJ has

determined to constitute impediments to the exercise of treaty

rights.

The ICJ’s LaGrand and Avena decisions constitute the

authoritative interpretation of the Vienna Convention as

regards nationals of treaty parties who have been sentenced

to severe penalties without having been informed of their

treaty rights. The rights in question derive from the treaty itself;

LaGrand and Avena clarify the nature and content of those

rights and the treaty-based remedies for their enforcement.

(Section L.)

LaGrand and Avena resulted from a treaty-based dispute

settlement process to which the United States fully consented,

in which the United States fully participated, and which

produced an interpretation of the Vienna Convention that

removes any doubt about the obligations of the United States

as a whole toward nationals of treaty parties. The Vienna

Convention as interpreted in LaGrand and Avena binds state

authorities; the treaty obligations in question are directed to

procedural matters addressed in the ordinary course by

domestic courts; and state courts are required by the

Supremacy Clause of the Constitution to exercise their judicial

powers within their respective jurisdictions to carry out these

obligations of the United States. (Section II.)

This Court should endorse as the federal rule of decision

the interpretation of the treaty that has now been twice

confirmed by the IC] in cases to which the United States was a

party. There is no basis for state courts to continue to follow

an Executive Branch litigation position that has been displaced

by the appropriate international dispute settlement process

to which the United States committed itself in a

constitutionally proper way. (Section III.)

The Vienna Convention as interpreted in LaGrand and

Avena does not require Oregon or Virginia to set petitioners

free or to refrain from carrying out their sentences, if the courts

below were to find after a hearing that the treaty violations

had not affected petitioners’ ability to defend themselves. What

the Convention requires is a judicial forum in which petitioners

can have a hearing on their claims that they suffered actual

prejudice from the treaty violations - violations neither Oregon

nor Virginia has denied. This Court should therefore remand

for hearings in which petitioners’ treaty claims could be

examined on their merits. In the case of petitioner Sanchez-

Llamas, the Oregon courts should reexamine his case,

informed by the LaGrand and Avena interpretation that the

treaty establishes judicially enforceable individual rights. In

the case of petitioner Bustillo, the Virginia courts should

remove the barrier of the state procedural default rule, which

was applied in a way that the ICJ has found to be inconsistent

with treaty rights.

ARGUMENT

I. The ICJ Has Authoritatively Determined The

Interpretation And Application Of The Vienna

Convention For Purposes Of The Questions Presented

In These Petitions.

The courts below based their denials of relief on incorrect

assumptions about the interpretation of the Vienna

Convention on Consular Relations, April 24, 1963, 21 U.S.T.

77, T.1.A.S. No. 6820, 596 U.N.T.S. 261 [Vienna Convention}

and its application as a controlling source of law for state

courts. The Oregon court in No. 04-10566 adopted the position

that the Vienna Convention does not confer individual rights

enforceable in judicial proceedings; the Virginia court in No.

05-51 held that a state procedural default rule could be applied

to foreclose a Vienna Convention claim. These positions have

now been definitively rejected by the International Court of

Justice [ICJ].? Since petitioners are covered by the Vienna

Convention (Section I.A), they are entitled to benefit from the

ICJ’s construction concerning judicially enforceable individual

rights (Section I.B) and procedural default (Section I.C), and

are entitled to the same treaty-based remedy as the ICJ held to

be required for the individuals covered by LaGrand and Avena

(Section I.D).

A. Petitioners Are Foreign Nationals Covered By The

Vienna Convention Whose Rights Under The

Convention Were Violated.

Petitioners are foreign nationals from states parties to the

Vienna Convention, which provides in Article 36(1)(b) that if

such a national is arrested or detained, he shall be informed

—— ——

? No decision of this Court should have been understood as standing

in the way of full implementation of the ICJ’s authoritative interpretation.

Breard v. Greene, 523 U.S. 371 (1998), left open the possibility that the Vienna

Convention entails judicially enforceable individual rights, see 523 U.S. at

376 (treaty “arguably confers on an individual the right to consular

assistance following arrest”), but concluded that such rights, if they exist,

could be cut off by a later-in-time federal statute, which is not involved

here. In Medellin v. Dretke, 125 S.Ct. 2088, 2091 n. 3 (2005), this Court noted

that the ICJ had held in Avena that the Vienna Convention does establish

individually enforceable rights. Breard did not address the situation of state

rather than federal procedural default rules, an issue now pending in Texas

in the Medellin matter.

“without delay of his rights” to have his consular post notified

and to communicate with the consulate. The obligations of

parties to the Vienna Convention have been interpreted several

times in cases involving the United States brought under the

Optional Protocol to the Vienna Convention Concerning the

Compulsory Settlement of Disputes, April 24, 1963, 21 U.S.T.

325. T.1.A.S. No. 6820, 596 U.N.T.S. 487 [Optional Protocol],

including in LaGrand (F.R.G. v. U.S.), 2001 IC] 466, and Avena

and Other Mexican Nationals (Mex. v. U.S.), 2004 IC] No. 128.

LaGrand held that the Vienna Convention does establish rights

for individuals, that procedural default rules must not be

applied to prevent the exercise of treaty rights, and that the

remedy for violations of Article 36 consists in the obligation

of the United States to provide, by means of its own choosing,

review and reconsideration of the convictions and sentences

of affected individuals. Avena confirmed these conclusions

and further Specified that the remedy of review and

reconsideration is to be carried out in judicial proceedings.

(Sections 1.B, 1.C.) LaGrand and Avena likewise held that the

requirement of review and reconsideration applies as a matter

of interpretation of the Vienna Convention not only in the cases

of the individuals named in the judgments, but also in other

cases under the treaty entailing “severe penalties.” (Section

I.D.)

Petitioner in No. 04-10566, Moises Sanchez-Llamas, is a

national of Mexico who was convicted in Oregon of 11 felony

counts, including attempted murder and assault in the first

degree, and sentenced to 246 months’ imprisonment -

undoubtedly “severe penalties” under LaGrand and Avena. He

was advised of his Miranda rights in Spanish and English but

not notified of his right to contact the Mexican consulate before

he confessed. Prior to trial, he moved to suppress his confession

because of the Vienna Convention violation. The denial of this

motion was upheld by the Supreme Court of Oregon on the

ground that the Vienna Convention does not provide for

judicially enforceable individual rights. Oregon v. Sanchez-

Llamas, 338 Ore. 267, 108 P.3d 573 (2005). This position is

inconsistent with the IC]’s decision in Avena that the Vienna

Convention does establish individual rights and that the

proper remedy under the treaty for violation of those rights is

to be determined in a judicial hearing. (Section 1.B.)

Petitioner in No. 05-51, Mario A. Bustillo, is a national of

Honduras - a country which, like Mexico, is party to the

Vienna Convention. He was convicted of murder and

sentenced to 30 years’ imprisonment - unquestionably “severe

penalties” - without awareness of his consular rights. He

claims that the crime was actually committed by another

. Honduran national who fled to Honduras, and he has

introduced a declaration from the Honduran consulate to the

effect that it would have been able to help him identify that

individual and obtain potentially exculpatory evidence if he

had had consular access prior to trial. The Virginia courts

denied relief on the ground of procedural default, because he

had not raised his Vienna Convention claim at trial. App. to

Pet. for Certiorari, pp. 20a, 40a, 44a, 47a. This denial is

inconsistent with the ICJ’s holding that procedural default

rules (while not invalid per se) must not be applied to foreclose

a judicial hearing on a claim that failure to inform a defendant

of his treaty rights had prevented him from asserting them

and that he had suffered prejudice from that failure. (Section

LC.)

B. The LaGrand And Avena Judgments Establish That

The Vienna Convention Confers Individual Rights

To Be Enforced In Domestic Judicial Proceedings.

In LaGrand (paras. 75-77), the IC} laid to rest all debate

about the nature of the Vienna Convention rights in question

as rights of the individual concerned. The IC] specifically

rejected the U.S. contention (para. 76) that the rights at issue

are rights of states and not of individuals, concluding (based

on the text of the provisions in context) “that Article 36,

paragraph 1, creates individual rights.”* In Avena, the IC]

reaffirmed its LaGrand conclusion on individual rights and

additionally observed (para. 40) “that the individual rights of

Mexican nationals under [Article 36(1)(b)] are rights which

are to be asserted, at any rate in the first place, within the

> LaGrand, para. 77; see also paras. 38, 42, 74, 78, 126, and Avena, paras.

35, 40, 124, 139-140 (on the contentions of Germany and the United States

concerning individual rights).

domestic legal system of the United States.”* The ICJ explained

that these “are treaty rights which the United States has

undertaken to comply with in relation to the individual

concerned, irrespective of the due process rights under United

States constitutional law” (para. 140), thereby recognizing that

an individual's treaty right to consular assistance is analytically

and practically different from constitutional rights.°

Avena specified further that a judicial hearing is required

to redress violations of these treaty-based individual rights.

The IC] expressly rejected the U.S. contention that nonjudicial

remedies such as clemency could satisfy treaty requirements

and explained the need for a judicial remedy within the

individual's own criminal proceedings as an interpretation of

Article 36.° This aspect of Avena crucially locates the remedial

dimension as a matter of interpretation and application of the

Vienna Convention itself. As the United States has stated in the

past (referring to IC] treaty cases), the question of remedy for

a treaty violation is itself a question of treaty law:

The Court's jurisprudence establishes that “the

breach of an engagement involves an obligation to

make reparation in an adequate form. Reparation

* This observation responded to the U.S. position that Mexico’s IC]

application should be considered inadmissible as to any Mexican national

who had not exhausted all remedies in U.S. courts. The U.S. assertion before

the IC] that there might be remedies remaining to be exhausted in the U.S.

-legal system was in tension with the U.S. position at the ICJ - and in US.

domestic courts - that the treaty did not create judicially enforceable rights.

The IC] has rejected this position as a matter of treaty interpretation, and

this Court should reject it as well. See Section III.

° Petitioner Bustillo’s case is an apt illustration of this proposition.

Consular services from the government of Honduras could have helped

him obtain immigration records and other official documents concerning

another Honduran national - assistance beyond the power of his own

counsel or any U.S. state or federal authority to provide.

* See Avena, paras. 121 (remedy for Article 36 violation to be carried

out “by the United States courts”), 122 (question of prejudice “is an integral

part of criminal proceedings before the courts of the United States”), 127

(legal consequences of breach “to be examined under the concrete

circumstances of each case by the United States courts concerned”), 140

-(“it is the judicial process that is suited to this task”), 141 (review and

reconsideration “should occur within the overall judicial proceedings

relating to the individual defendant concerned”).

therefore is the indispensable complement of a

failure to apply a convention and there is no

necessity for this to be stated in the convention

itself.” (Factory at Chorzow, Jurisdiction, Judgment No.

8, 1927, P.C.1.J., Series A, No. 9, p. 21; see also

Reparation for Injuries Suffered in the Service of the

United Nations, Advisory Opinion, I.C.]. Reports 1949,

p. 174, at p. 184.)

Memorial of the Government of the United States of America,

United States Diplomatic and Consular Staff in Tehran (U.S. v.

Iran),1979 IC] Pleadings 121 at 188.

C. The IC) 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

Treaty.

In both LaGrand and Avena, the IC] addressed in detail

the U.S. position that procedural default rules could foreclose

presentation of treaty claims and gave a reasoned explanation

for not accepting that position.’ The [CJ concluded that while

the procedural default rule in itself does not violate Article

36, particular applications of the rule can violate the

Convention, namely when a breach of Article 36(1) through

failure to inform the individual of his rights precluded the

exercise of his or his country’s treaty rights.

As with the IC]’s treatment of the question of judicial

remedy (Section [.B), the issue of application of the procedural

default rule is itself a question of treaty law - specifically of

interpretation and application of Article 36(2) of the Vienna

Convention, which provides that the domestic framework for

exercise of treaty rights “ must enable full effect to be given to

the purposes for which the rights accorded under [Article 36]

are intended.” In Breard, this Court assumed that the mention

in Article 36(2) of “the laws and regulations of the receiving

State” validated the operation of rules of procedural default

in U.S. habeas jurisprudence, but that assumption was made

? See LaGrand, paras. 50, 58-60, 79-91, 125, 128(7); Avena, paras. 111-

113, 133-134, 138. In Avena, the treatment of procedural default and related

questions comes under the general heading of “ Article 36, paragraph 2,”

beginning at para. 107 of the judgment.

= 9 -

without benefit of full briefing on whether such rules “enable

full effect to be given” to Article 36’s purposes. The matter

was later considered in a full adversarial posture in LaGrand

and Avena, and the ICJ’s decisions in those cases have undercut

this Court’s assumption in Breard. As on other occasions when

this Court has had drawn to its attention materials relevant to

the proper international interpretation of a treaty, it would be

appropriate for this Court to reconsider and revise its previous

conclusions with attention to the ICJ’s treatment.®

D. The ICJ 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 Penalties.”

At the ICJ merits phase of LaGrand, review and

reconsideration of the convictions and sentences of the

particular incividuals was impossible, since the LaGrand

brothers had been executed. Nonetheless, Germany drew to

the ICJ’s attention the fact that other German nationals were

or could be similarly situated and asked the ICJ to frame its

judgment with such cases in view. LaGrand, paras. 117-125. In

that regard, the IC] reasoned that an apology would not suffice

where individuals “have been subjected to prolonged

detention or convicted and sentenced to severe penalties”

(para. 125) and addressed the remedies for such individuals

in the last dispositive paragraph of the judgment.’ Similarly,

in Avena, Mexico made the IC] aware that beyond the specific

® Cf. United States v. Percheman, 32 US. (7 Pet.) 51, 88-89 (1833)

(revisiting treaty question decided in Foster & Elam v. Neilson, 27 U.S. (2

Pet.) 253 (1829), after receiving translated Spanish text). In light of the ICJ’s

view of US. treaty obligations, a Charming Betsy analysis of the later-in-

time federal statute (not involved in the present cases) might be appropriate

if the statute involved in Breard reaches this Court again.

* LaGrand, para. 128(7) (adopted 14-1):

Finds that should nationals of the Federal Republic of Germany

nonetheless be sentenced to severe penalties, without their rights

under Article 36, paragraph 1(b) of the Convention having been

respected, the United States of America, by means of its own

choos ng, shall allow the review and reconsideration of the

conviction and sentence by taking account of the violation of the

rights set forth in that Convention.

individuals on whose behalf it brought the case, treaty

violations continued to occur and other Mexican nationals

whose rights had been violated were at various stages of

criminal proceedings; Mexico therefore asked for the judgment

to protect those and any future Mexican nationals in

comparable situations. See Avena, para. 146 (referring io at least

100 cases in first half of 2003 in which Mexican nationals had

been arrested for serious felonies without timely notice of their

consular rights). The IC] addressed Mexico’s request in the

last dispositive provision of the judgment,'’® and by a

paragraph in its reasoning explaining the obligations of the

United States flowing from the treaty itself and applying to

all nationals of treaty parties:”

151. The Court would now re-emphasize a

point of importance. In the present case, it has had

occasion to examine the obligations of the United

States under Article 36 of the Vienna Convention

in relation to Mexican natic nals sentenced to death

in the United States. Its findings as to the duty of

review and reconsideration of convictions and

sentences have been directed to the circumstance

of severe penalties being imposed on foreign

nationals who happen to be of Mexican nationality.

To avoid any ambiguity, it should be made clear

that, while what the Court has stated concerns the

Mexican nationals whose cases have been brought

before it by Mexico, the Court has been addressing

'© Avena, para. 153 (11) (adopted unanimously):

Finds that, should Mexican nationals nonetheless be sentenced to

severe penalties, without their rights under Article 36,

paragraph 1(b), of the Convention having been respected, the

United States of America shall provide, by means of its own

choosing, review and reconsideration of the conviction and

sentence, so as to allow full weight to be given to the violation

of the rights set forth in the Convention, taking account of

paragraphs 138 to 141 of this Judgment. [Emphasis added.]}

" To similar effect, see Declaration of President Guillaume in LaGrand,

2001 ICJ at 517 ( “in order to avoid any ambiguity, it should be made clear

that there can be no question of applying an a contrario interpretation to

this paragraph.”). On the import of LaGrand and Avena for nationals of

states other than Germany and Mexico, see Section III.A.

the issues of principle raised in the course of the

present proceedings from the viewpoint of the general

application of the Vienna Convention, and there can

be no question of making an a contrario argument

in respect of any of the Court's findings in the

present judgment. In other words, the fact that in

this case the Court's ruling has concerned only

Mexican nationals cannot be taken to imply that

the conclusions reached by it in the present

Judgment do not apply to other foreign nationals

finding themselves in similar situations in the

United States. [Emphasis added.]

Petitioner Sanchez-Llamas, as a Mexican national sentenced

to severe penalties, is without doubt comprehended within

both paragraph 151 and dispositive paragraph 153(11) of

Avena; petitioner Bustillo is surely one of the similarly situated

“other foreign nationals” under the ICJ’s authoritative

interpretation of the Vienna Convention.

II. LaGrand And Avena 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 As A Whole.

Amici respectfully emphasize the fully consensual nature of

the obligations undertaken by the United States in adhering to

the Vienna Convention and Optional Protocol. The Optional

Protocol serves as a forum selection clause, with the effect that

parties that have selected the IC] as the forum to decide their

disputes are bound to carry out its decisions.” Thus, once having

given consent to both the Vienna Convention and the designated

forum for dispute settlement, the United States is obligated to

comply with the Convention, as interpreted by the IC].

A. The Vienna Convention Establishes Uniform

Consular Standards.

The Vienna Convention codifies into multilateral treaty

law a body of rules that evolved over centuries. Before the

" Cf. Bremen v. Zapata Off-Shore Co., 407 US. 1, 8-9 (1972); Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 629 (1985) (enforcing

arbitration agreement).

Vienna Convention, disputes over consular relations

frequently led to diplomatic protests and international

arbitration.’* By the mid-20" century, the desirability of a

multilateral treaty to codify consular law and provide for

settlement of consular disputes was clear. Treaty codifications

of customary international law produce greater certainty and

enjoy a clearer status than custom in many legal systems. A

multilateral mechanism for binding settlement of consular

disputes would likewise strengthen compliance and obviate

the need for special arbitration agreements.

Codification of consular law was undertaken by the U.N.

International Law Commission and a diplomatic conference.

See 1961-II Y.B. Int’. L. Comm’N 88-128. The United States

played a leading role in negotiating the specific wording of

Article 36 of the Convention and the Optional Protocol. See

Report of the United States Delegation to the Vienna

Conference on Consular Relations, reprinted in Sen. Exec. E,

91* Cong., 1* Sess., May 8, 1969, at 41, 59-61 [Report of U.S.

Delegation]. The United States actively advocated the

provision that became the Optional Protocol and resisted

others’ efforts to eliminate or weaken dispute settlement.

See Report of U.S. Delegation at 72-73. The formulation from

the Vienna Conference, fully supported by the United States,

See 4 G. Hackwortn, Dicest oF INTERNATIONAL Law 830-837 (1942)

{Hackworth]; M. Wurreman, Dicest oF INTERNATIONAL Law, vol. 7 at 626-658;

vol. 8 at 807-837 (1970). In the 1920s, a U.S.-Mexican claims commission

held that “a foreigner, not familiar with the laws of the country where he

temporarily resides, should be given [the] opportunity” of consular access.

Walter H. Faulkner (U.S. v. Mex.), Opinions of the Commissioners Under

the Convention Concluded September 8, 1923 (1927) at 86, 90; see also 4

Hackworth 830. Conversely, where California officials did not give the

Mexican consulate access to a detained Mexican citizen, the Department of

State stressed the importance of California’s compliance with standards

maintained by the United States in its dealings with other countries:

Even in the absence of applicable treaty provisions this

Government has always insisted that its consuls be permitted

to visit American citizens imprisoned throughout the world

and it is believed that if [the] attitude [of the] District Attorney

is maintained in [the] instant case there will be repercussions

in Mexico and perhaps other countries unfavorable to

American citizens.

4 Hackworth 836.

was an Optional Protocol that states would be free to accept

or not; upon acceptance, a binding obligation would be created.

Ibid. The United States voluntarily accepted the Optional

Protocol when it ratified the Vienna Convention in 1969."4

No state can unilaterally determine the meaning of an

international treaty.’° Thus, in a dispute over the interpretation

and application of the Vienna Convention, the United States

cannot impose its own view on its treaty partners,”* or establish

the measure of its own treaty compliance. Nor can disputes

over the application of the Vienna Convention to particular

facts, or over the remedy for breach, be determined by the

United States as one party to the dispute.

B. The United States Consented To ICJ Jurisdiction To

Decide Disputes Under The Vienna Convention And

Is Therefore Required To Give Effect To The Resulting

Interpretation Of The Disputed Treaty Provisions.

The United States freely agreed to the compulsory

jurisdiction of the IC] to resolve Vienna Convention disputes,

and thus voluntarily accepted an obligation to give effect to

the ICJ’s interpretation resulting from the dispute settlement

procedure. The basis for ICJ compulsory jurisdiction is Article.

I of the Optional Protocol.’ The jurisdiction of the ICJ in

‘“*On March 7, 2005, the United States gave notice of withdrawal from

the Optional Protocol. (Section II.C.)

'S See Jesse Lewis (The David J. Adams) Claim (U.S. v. Gr. Br., 1921), 6

U.N. Rep. Int'l Arb. Awards 85 (British court decision could not be

conclusive of meaning of U.S.-British treaty; arbitral tribunal had

competence to interpret the treaty authoritatively). See also Mitsubishi, 473

US. at 629; Bremen, 407 U.S. at 9 (U.S. courts should not “insist on a parochial

concept that all disputes must be resolved under our laws and in our courts.

... We cannot have [international dealings] exclusively on our terms,

governed by our laws, and resolved in our courts.”).

’* For this reason, U.S. courts ought to give careful consideration to

reasoned positions adopted by foreign or international as well as U.S. courts

on points of treaty interpretation. Cf, Olympic Airways v. Husain, 540 US.

644, 660-661 (2004) (Scalia, J., dissenting). Where a tribunal has been

accepted by the U.S. political branches as the forum for binding settlement

of treaty disputes, deference to its conclusions is not just advisable but

required as a matter of treaty law.

“Article I states: “Disputes arising out of the interpretation or

application of the [Vienna] Convention shall lie within the compulsory

(Cont'd)

LaGrand and Avena was founded on consent and reciprocity

under Article 36(1) of the ICJ Statute, which establishes

jurisdiction over “all matters specially provided for ... in

treaties and conventions in force.” At all times relevant to

LaGrand and Avena, the Optional Protocol was a treaty in force

under Article 36(1) of the ICJ Statute. Because the United States

consented through the proper processes under domestic and

international law to submit Vienna Convention disputes to

[CJ jurisdiction, it is — to implement the outcome of

the procedure. ~

The United States was the first state to turn to the [CJ ina

Vienna Convention dispute, when it brought an application

against Iran concerning U.S. diplomatic and consular

personnel held hostage in Tehran in 1979. See United States

Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 IC]

7, 1980 IC] 3, 5, 24-26. The U.S. pleadings in that matter analyze

the obligation of parties to the Optional Protocol when

disputes arise to abide by IC] decisions. See 1979 IC} Pleadings,

United States Diplomatic and Consular Staff in Tehran, at 141-

152." When the IC] indicated provisional measures in 1979

and entered judgment in 1980, the United States insisted on

Iranian compliance and invoked the ICJ’s decisions in U.S.

and foreign tribunals.

(Cont'd)

jurisdiction of the International Court of Justice and may accordingly be

brought before the Court by a written application made by any party to

the dispute being a Party to the present Protocol.”

'® See U.N. Charter, 59 Stat. 1031, art. 94 (“Each Member of the United

Nations undertakes to comply with the decision of the [ICJ] in any case to

which it is a party.”).

® The availability of the ICJ to the United States in that case differed

from the situation prior to the Vienna Convention, when the United States

was unable because of the lack of jurisdictional consent to bring disputes

over consular access to an authoritative tribunal. In 1954 the United States

filed an ICJ case against Hungary claiming denial of consular access to

four U.S. airmen who were tried in Hungary after their plane was brought

down. 1954 ICJ Pleadings, Treatment in Hungary of Aircraft and Crew of the

United States of America (U.S. v. Hung.), at 19-20, 31, 35-36. The case was

dismissed because Hungary had not consented to ICJ jurisdiction. 1954 IC]

99. Hungary is now party to the Vienna Convention and the Optional

Protocol.

Approximately 70 U.S. treaties now in force contain

obligations comparable to those in the Optional Protocol for

submission of treaty-based disputes to the [CJ.” These include

bilateral and multilateral treaties involving substantial

economic, political, and other interests. The United States is a

frequent litigant at the ICJ, both as applicant and as

respondent. Indeed, the United States has been involved in

more IC] cases than any other state:”' in total, the United States

has been party to 21 cases at the ICJ,” of which 10 have been

brought by the United States as applicant or by special

agreement and 11 have been brought against the United

States.” Since each of the 70 treaties with an ICJ dispute

settlement clause entails obligations und er those treaties and

under the U.N. Charter (art. 94) and ICJ Statute (arts. 36(1),

59), failure to carry out LaGrand and Avena could prejudice

the ability of the United States to hold other states to their

*® See Fred L. Morrison, Treaties as a Source of Jurisdiction, Especially in

U.S. Practice, in THE INTERNATIONAL Court OF Justice AT A Crossroads 58-81

(Lori F. Damrosch ed., 1987) [Crossroaps]. To the best of Amici’s knowledge,

with only three exceptions (see below) all such treaties remain in force for

the United States as of 2005, as specified for each such treaty in the

Department of State publication, Treaties in Force. Two treaties with IC]

clauses came into force for the United States after completion of the

Morrison study: the Convention on the Physical Protection of Nuclear

Materials, T.1.A.S. No. 11080 (in force Feb. 8, 1987), and the International

Convention on the Taking of Hostages, T.I.A.S. No. 11081 (in force Jan. 6,

1985).

In 1985 the United States gave notice of termination of jurisdiction

under the optional clause of Article 36(2) of the IC) Statute and of a treaty

of friendship with Nicaragua (the bases of jurisdiction on which the ICJ

had relied in the Nicaragua case, note 25), and in 2005 gave notice of

withdrawal from the Optional Protocol under the Vienna Convention.

(Section ILC.)

”' For a listing of all IC) cases grouped by state, see the ICJ website at

www .icj-cij.org.

“ The United States has also taken part in almost all proceedings for

advisory opinions under Article 65 of the ICJ Statute. See Goler Teal Butcher,

The Consonance of U.S. Positions with the International Court's Advisory

Opinions, in Crossroans at 423; for a current listing, see IC] Website.

* The cases initiated by the United States include seven involving

Soviet-bloc aerial incidents, as well as Tehran Hostages (Iran 1979-81), Gulf

of Maine (Canada 1981-84), and Elettronica Sicula S.p.A. (ELSI) (Italy 1987-

89). See pp. 17-18 below.

dispute settlement obligations and to sustain U.S. credibility

before the IC] in future proceedings. While not all of these

treaties are self-executing or confer individual rights subject

to judicial protection, the Vienna Convention is indeed a treaty

contemplating domestic judicial implementation in favor of

individuals as confirmed in Avena, and this Court should

therefore ensure that state courts fulfill those treaty rights in

accordance with the ICJ’s interpretation.

The United States has a major stake in maintaining a

record of abiding by the outcome of ICJ dispute settlement,

since it continues to be active in that forum. Compliance with

IC final judgments has generally been high, including in the

cases in which the United States has been a party.” States have

exceptionally disregarded IC] rulings when they considered

that the IC] lacked a proper consensual foundation to decide

the case, notably where respondents insisted that the IC] had

been granted no competence to decide a matter involving a

state’s vital security interests.” In the Vienna Convention cases,

jurisdiction was by consent and no security interest would be

prejudiced by compliance. Indeed, President Bush’s

memorandum on compliance with Avena (Section III) confirms

the national interest in fulfilling international obligations.

** Recent studies find compliance with two-thirds of the ICJ’s

substantive judgments and as high as 80% compliance with final judgments

over a substantial period. See Colter Paulson, Compliance With Final

Judgments of the International Court of Justice Since 1987, 98 Am. J. Int’L L.

434, 456-460 (2004) (compliance rate of 60% with judgments issued in last

15 years; likelihood that rate would go up to 80% rate for prior periods in

light of efforts to comply over time); Tom Ginsburg & Richard H. McAdams,

Adjudicating in Anarchy: An Expressive Theory of International Dispute

Resolution, 45 Wo. & Makry L. Rev. 1229, 1308-1311 (2004) (overall compliance

rate of 68%, counting disregard of provisional measures as noncompliance);

Jonathan |. Charney, Disputes Implicating the Institutional Credibility of the

Court, in CrossROADs at 288, 310-319 (only 5 cases of noncompliance with

final judgments 1946-1986).

> See especially the U.S. position on Military and Paramilitary Activities

in and against Nicaragua (Nic. v. U.S.), 1986 ICJ 14, note 34 below. France

denied the existence of proper ICJ jurisdiction in Nuclear Tests (Austl. &

N.Z. v. Fr.), 1974 ICJ 253, 457. The United States and France reacted to

these cases by withdrawing from the general compulsory jurisdiction clause

of Article 36(2) of the IC) Statute, while maintaining treaty-based

acceptances under Article 36(1).

Implementation of ICJ judgments has proceeded smoothly

in almost all treaty-based cases and those involving the rights

of aliens within a state’s territory. In the first case leading to a

final judgment involving the United States, both the United

States and France promptly complied with the judgment in

Rights of Nationals of the United States of America in Morocco

(Fr. v. U.S.), 1952 ICJ 176.77 In Gulf of Maine (Canada/U‘S.),

1984 IC] 246, the final judgment drew a maritime boundary;

both sides accepted the judgment and promptly complied.”

In ELSI, 1989 IC] 15, the United States embraced the IC] forum

as part of its diplomacy and accepted the judgment as

dispositive of the claims it had raised on behalf of U.S.

investors.” Thus, apart from Nicaragua (addressed in note 34

below) and such continuing problems as may exist in the wake

of LaGrand and Avena, the United States has complied with all

final IC] judgments addressed to it and has benefited from

the compliance of all of its adversaries with final judgments

7° The final judgment in Morocco had elements requiring

implementation by each side. The United States dismissed all cases before

U.S. consular courts in Morocco that were outside the limits of jurisdiction

specified by the ICJ, and French courts relied on the judgment in local

(Moroccan) and appellate rulings (by the Cour de cassation), which referred

to the IC] judgment as dispositive. See Manley O. Hudson, The Thirty-First

Year of the World Court, 47 Am. J. Int’t L. 1, 8, 14-15 (1953); Note, Judicial

Decisions: Morocco-Criminal Jurisdiction over U.S. Citizens- ... -International

Court of Justice, 49 Am. J. INt’t L. 263, 267 (1955); CHrisropH C. SCHREUER,

DECISIONS OF INTERNATIONAL INSTITUTIONS BeFore Domestic Courts 33-34, 199,

221 n. 100 (1981) (French courts “do not seem to have regarded any domestic

implementing measures for the application of the International Court's

judgment as being necessary;” direct application of decision derived from

French submission to IC] jurisdiction).

” Compliance having been assumed, only a few cases refer to the IC]

judgment. See, e.g., Conde v. Starlight I Inc., 103 F.3d 210 (1* Cir. 1997) (Hague

Line mentioned); 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]

15S.C.R. 12 (plaintiff sought fishing license in area awarded to Canada by

ICJ); Mersey Seafoods Ltd. v. Minister of Nat'l Revenue, [1985] 2 C.T.C. 2485

(Can. Tax Ct.), paras. 142-147 (IC] decision became available after arguments

concluded).

8 See Terry D. Gill, International Court of Justice - Diplomatic Protection

- U.S.-Italian Treaty of Friendship, Commerce and Navigation, 84 Am. J. INTL L.

249, 257 (1990).

addressed to them, except for Lran in the Tehran Hostages case.”

In view of the U.S. interest in credible fulfillment of dispute

settlement undertakings,” this Court should ensure that the

* In addition to the cases discussed in the text, the disposition of the

remainder of the 21 cases to which the United States has been party is as

follows: :

Dismissal on Threshold Ground (No Jurisdiction or Claim Inadmissible):

The seven Soviet-bloc Aerial Incident cases were dismissed for lack of

jurisdiction. 1954 IC) 997U.S. v. Hung.); 1954 ICJ 103 (U.S. v. USSR); 1956

ICJ 6 (US. v. Cz.); 1956 IC} 9 (U.S. v. USSR); 1958 IC] 158 (U.S. v. USSR);

1959 ICJ 276 (U.S. v. USSR); 1960 IC) 146 (U.S. v. Bulg.). Monetary Gold

Removed from Rome in 1943 (Italy v. Fr., U.K., U.S.), 1954 IC] 19, was

dismissed for lack of an indispensable party. Interhandel (Switz. v. U.S.),

1959 IC} 16, was dismissed for failure to exhaust local remedies. Legality of

Use of Force (Yugo. v. U.S.), 1999 ICJ 916, was dismissed for lack of

jurisdiction.

Dismissal Upon Settlement: Aerial Incident of 3 July 1988 (Iran v. U.S.),

1996 IC] 9, was discontinued after the United States agreed to make an ex

gratia payment. Lockerbie (Questions of Interpretation and Application of the

1971 Montreal Convention) (Libya v. U.S.), 2003 ICJ 152, was discontinued

upon an overall settlement. Vienna Convention on Consular Relations (Para.

v. U.S.), 1998 IC} 426, was discontinued after provisional measures and

before the merits.

Dismissal on Merits: Oil Platforms (Iran v. U.S.), 2003 ICJ 161, was

dismissed on the merits of both Iran’s claim and the U.S. counterclaim.

* On rare occasions of U.S. failure to implement obligations resulting

from dispute settlement (as with prolonged noncompliance with the

Chamizal arbitral award in Mexico’s favor), detriments to U.S. economic

and political interests are well-documented. See SHELDON B. Liss, A CENTURY

OF DISAGREEMENT: T HE CHAMIZAL CONFLICT, 1864-1964 68-69, 75-77, 86-88, 100-

101 (1965); ANtonio GOMEZ RosLepo, MExico y EL ARBITRAJE INTERNACIONAL

161 (1965); Percy Don Williams, Jr., Fifty Years of the Chamizal Controversy -

~A Note on International Arbitral Appeals, 25 Tex. L. Rev. 455, 461-462 (1947)

(problems in negotiating with Mexico over expropriation of U.S. properties,

in view of noncompliance with Chamizal award); Francis J. Weser, THE

Unrtep States Versus Mexico: THE Finat SETTLEMENT OF THE Pious FuNo 42-50

(1969) (linkage between U.S. rejection of Chamizal and Mexico's suspension

of payments under Pious Fund award). President Kennedy said that because

of the U.S. refusal on Chamizal, “Mexico has been unwilling to take any

other matter to arbitration, which has, of course, therefore lessened the

harmony between the two countries.” See Kennedy Says U.S. Was Wrong in

Mexico Border Disagreement, N.Y. Times, Jul. 6, 1962, at 4, 8.

At the time of the eventual Chamizal settlement in 1963, the office of

the Texas Attorney General concurred with the opinion of the Legal Adviser

(Cont'd)

courts below uphold the U.S. obligations to carry out the ICJ’s

treaty interpretation.

This Court has recognized that when the United States

undertakes to participate in international dispute settlement,

the good faith of the United States is implicated in carrying

out the result. See La Abra Silver Mining Co. v. United States,

175 US. 423, 463 (1899). In Dames & Moore v. Regan, 453 US.

654, 679-680 (1981), this Court explained that claims by

nationals of one country against another can be “sources of

friction” in international relations and that dispute settlement

procedures accepted by the U.S. political branches are a

traditional and proper method for resolving such grievances.

Implementation of LaGrand and Avena is thus consistent with

established jurisprudence in respect of international dispute

settlement.

C. Withdrawal From The Optional Protocol Does Not

Affect The U.S. Obligation T» Abide By The Vienna

Convention As Interpreted In LaGrand And Avena.

On March 7, 2005, the U.S. Secretary of State notified the

U.N. Secretary-General that the United States “hereby

withdraws” from the Optional Protocol. Under international

law, this notice could not affect obligations incurred or

judgments rendered while the United States was a party to

the Protocol. More important for the present case, at the same

time as the announcement of withdrawal from the Protocol,

the United States reaffirmed its commitment to the Vienna

Convention as well as its decision to comply with the Avena

judgment.” It is therefore essential that domestic courts,

including this Court, uphold the Convention correctly and

(Cont'd)

of the U.S. Department of State that the matter could be resolved with

Mexico by treaty without Texas's consent, because of its international

implications. See Liss at 95-97; 3 Whiteman at 680, 696-699.

* The State Department spokesman said (in response to a question):

“[T]he bottom line is we believe in the international system, we are

committed participants in the international system, as reflected by our

continued commitment to the Vienna Convention and its provisions, as

well as our decision to comply with the judgment.” Dep't of State Daily

Press Briefing (Mar. 10, 2005), at http:/ / www.state.gov/r/pa/prs/dpb/

2005 /43225.htm.

implement it according to the interpretation established before

the U.S. withdrawal. ,

D. The Vienna Convention As Interpreted In LaGrand

And Avena Binds The Courts And Is To Be

Implemented Through Judicial Action.

LaGrand and Avena clarify treaty obligations of the United

States which are the supreme law of the land (U.S. Const. art.

VI) and binding on all state courts, and the legal obligations

of the United States to abide by the interpretations in those

cases likewise arise from binding treaty undertakings. Hence,

on the current petitions, the interpretations in LaGrand and

Avena provide the basis for the rule of decision which this

Court should instruct state courts to follow.

The Senate approved the obligations of the Vienna

Convention and IC] compulsory jurisdiction over disputes

under it when it gave unanimous advice and consent to

ratification of the Vienna Convention and the Optional

Protocol. See 115 Cong. Rec. 30997 (Oct. 22, 1969).** The Vienna

Convention has been understood at all times to be a self-

executing treaty.*? Likewise, there has never been the slightest

doubt that the Vienna Convention would prevail over any

inconsistent state law. The priority of treaty law over state

law as required by the Supremacy Clause was spelled out

explicitly in the State Department's responses to the Senate’s

questions:

Question. What is the effect of the convention on

(a) Federal legislation; and (b) State laws?

Answer [after explaining a possible area of

conflict not relevant here}.

To the extent that there are conflicts with

Federal legislation or State laws the Vienna

* See RestaTEMENT (Third) of the Foreign Relations Law of the United

States (1987), Intro. Note to Part III and §§ 301-312, 321; Intro. Note to Part

IV, ch. 6 (before § 464); § 465.

*% The Department of State witness informed the Senate:

“The Convention is considered entirely self-executive and does not require

any implementing or complementing legislation.” Statement of J. Edward

Lyerly, Deputy Legal Adviser for Administration, U.S. Department of State,

Before the Senate Committee on Foreign Relations, reprinted in Sen. Exec.

Rep. No. 91-9, 91* Cong., 1* Sess. (1969), at 5. See also RestaTeMeNT, Intro.

Note before § 464.

Convention, after ratification, would govern as in

the case of bilateral consular conventions.

Sen. Exec. Rep. No. 91-9, at 18. This official response about the

controlling effect of the Vienna Convention raised no concerns

in the Senate, which gave unanimous advice and consent.

Because LaGrand and Avena specify what is required by

the Vienna Convention itself as a remedy for breaches, all

aspects of the present petitions are properly understood as

implementation of self-executing treaty obligations.* Just as

no legislation was required to implement the treaty obligation

to inform foreign nationals of their consular rights, no further

action from the federal political branches is needed to_afford

petitioners the treaty-based judicial hearing that the ICJ has

found to be necessary to redress violations of this right.*

LaGrand and Avena clarify obligations that existed when

petitioners were arrested (the obligation to inform them of

their treaty rights) and subsequently when they were tried,

convicted, and sentenced (the treaty-based obligation to review

the effect of the violation of the duty to inform and to accord

an effective remedy). The procedure prescribed is well within

* Committee of United States Citizens Living in Nicaragua v. Reagan, 859

F.2d 929, 937-938 (D.C. Cir. 1988), suggests in dicta that an IC} judgment

might not be self-executing, but is distinguishable. The ICJ’s Nicaragua

judgment did not involve a self-executing treaty, but rather entailed aspects

of international law (use of military force) that are non-self-executing in

US. law. The plaintiffs who sought to enforce the Nicaragua judgment were

strangers to the IC] case, see 859 F.2d 938, while Avena explicitly deals with

petitioners’ situation and specifies the remedy for their claims under a self-

executing treaty. Finally, Congress and the President had repudiated the

Nicaragua judgment in a subsequent conflicting statute, which the court of

appeals found controlling, see 859 F.2d 936-937. Here, no statute rejects

Avena, and the President has formally endorsed compliance through state

courts. See Section III.

* In Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 735 (2004), this Court

distinguished between rights under a treaty that the political branches have

declared to be non-self-executing, and those under a se!f-executing treaty.

Judicial enforcement of self-executing treaties is to be expected, and the

same should follow for authoritative interpretations of self-executing

treaties. Since the political branches have consistently treated the Vienna

Convention as self-executing, Sosa’s reasoning favors enforcement of

petitioners’ treaty rights in state courts.

judicial competence to review and correct illegal acts in

connection with criminal trials.

In failing to give petitioners the consular notice required

by the Vienna Convention, authorities in Oregon and Virginia

placed the United States in violation of its treaty obligations.

The ICJ has held that an apology cannot suffice to remedy

such violations in cases like those of petitioners involving

“severe penalties.” See LaGrand, para. 123; Avena, para. 120;

Section [.B, I.D. The reparation required by the treaty is a

judicial hearing for review and reconsideration of the

conviction and sentence of petitioners and other similarly

situated foreign nationals. Petitioners seek concrete

vindication of a treaty-based right that the ICJ has found to

require an effective judicial remedy. Failure to accord this

treaty remedy would leave the United States in continuing

violation of its obligation to ensure compliance with the Vienna

Convention.

There can be no objection that Avena calls upon the United

States to alter the way in which state criminal jurisdiction

would be exercised.* Treaties often require states to modify

the exercise of jurisdiction, and even to refrain from criminal

jurisdiction. For example, the Vienna Convention (arts. 41-45)

* If U.S. states were free to violate and then fail to remedy treaty

violations, with no judicial remedy available, the United States as a whole

would be responsible for state violations of international law. This Court

has repeatedly affirmed the need to undertake a “searching scrutiny” of

state or local actions affecting U.S. foreign relations that may provoke

consequences for the nation as a whole. See, e.g., Japan Line, Ltd. v. County

of Los Angeles, 441 U.S. 434, 451 (1979). The United States has accepted

obligations to make reparations in respect of failure of state or local

authorities to protect foreign nationals in accordance with international

standards. See RestaTeEMENT § 207, Reporters’ Note 3. Where state courts

can avoid such violations by carrying out the judgment of an authoritative

international tribunal, they must do so.

In the early 20" century, in preparation for arbitration with Mexico

involving protection of nationals of one country in the other's territory,

State Department lawyers sought instructions on how to deal with legal

issues concerning actions of states of the Mexican federation, in light of

mirror-image considerations of U.S. federalism. The Department replied

that “in our dealings with foreign Governments having a federal system

similar to our own, we have invariably insisted on the liability of the Federal

Government.” 5 Hackworth 593, 597 (1943).

codifies the international law of consular immunity from

criminal jurisdiction. Where a treaty provides for immunity

of a foreign official, courts are required to recognize immunity,

notwithstanding any impact on law enforcement interests. See

Commonwealth v. Jerez, 390 Mass. 456, 457 N.E.2d 1105 (1983)

(criminal complaint against consul dismissed because of

Vienna Convention). Cf. In re Dillon, 7 Fed. Cas. 710 (No. 3914)

(N.D. Cal. 1854) (recognizing treaty immunity of consul from

defendant's subpoena in a criminal case, notwithstanding

constitutional guarantee of compulsory process to obtain

witnesses).

The obligation of state judges to give effect to treaty-based

rights of foreigners is beyond doubt. In Ware v. Hylton, 3 U.S.

(3 Dall.) 199, 236-237 (1796), this Court established that a treaty

with Britain would prevail over state laws confiscating the

property of British subjects:”’

[I]t is the declared duty of the State Judges to

determine any Constitution, or laws of any State,

contrary to the treaty (or any other) made under

the authority of the United States, null and void.

National or Federal Judges are bound by duty and

oath to the same conduct.

State courts have frequently upheld treaty rights in cases

coming within their jurisdiction, without awaiting any

instruction from the federal Executive or the legislature.*

” See also Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603

(1813) (treaty protected British property owners against forfeiture under

state law). Treaties providing inheritance rights for aliens have been held

to prevail over state laws. See Hauenstein v. Lynham, 100 U.S. 483 (1880);

Nielsen v. Johnson, 279 U.S. 47 (1929); Clark v. Allen, 331 U.S. 503 (1947);

Kolovrat v. Oregon, 366 U.S. 187 (1961). State prohibitions on land ownership

have likewise had to yield to treaties. Chirac v. Chirac, 15 U.S. (2 Wheat.)

259 (1817). In Asakura v. Seattle, 265 U.S. 332 (1924), this Court said: “The

treaty is binding within the State of Washington. ... It operates of itself

without the aid of any legislation, state or national; and it will be applied

and given authoritative effect by the courts.” 265 U.S. at 341.

* The Court of Appeals of Kentucky, in an opinion that this Court

called “very able” (United States v. Rauscher, 119 U.S. 407, 427-28 (1886)),

wrote in a treaty case:

When it is provided by treaty that certain acts shall not be

done, or that certain limitations or restrictions shall not be

(Cont'd)

24 ;

Indeed, state courts have regularly applied consular treaties

on a self-executing basis. See, e.g., In re Zalewski, 292 N.Y. 322

(1944) (holding a consular treaty to be supreme law and giving

it liberal construction to allow consul to act as agent for Polish

national and exercise right of election under will).

Where the Senate unanimously approved a treaty

designed to secure rights of Americans around the world and

the IC] has required review and reconsideration of convictions

and sentences as the remedy for violation, no state court is

free to ignore the treaty-based judgment in favor of the

foreigner. If Oregon and Virginia were to defeat the national

interest in treaty compliance, they would deny to the United

States as a whole the benefits of the constitutional design,

which makes treaty obligations supreme and requires state

courts to enforce them.”

III. 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.

A. LaGrand And Avena Establish The Basis For The

Rule Of Decision Applicable In All Vienna

Convention Cases Involving “Severe Penalties.”

Although LaGrand and Avena were brought on behalf of

death row inmates, Vienna Convention obligations are not

(Cont'd)

disregarded or exceeded by the contracting parties, the

compact does not need to be supplemented by legislative or

executive action, to authorize the courts of justice to decline

to override those limitations or to exceed the prescribed

restrictions, for the palpable and all-sufficient reason, that to

do so would be not only to violate the public faith, but to

transgress the “supreme law of the land.”

Commonwealth v. Hawes, 76 Ky. (13 Bush) 697, 702-03 (1878).

* In Hines v. Davidowitz, 312 U.S. 52 (1941), this Court emphasized:

One of the most important and delicate of all internatic..al

relationships, recognized immemorially as a responsibility

of government, has to do with the protection of the just rights

of a country’s own nationals when those nationals are in

another country. .. . - duties which our State Department has

often successfully insisted foreign nations must recognize as

to our nationals abroad.

~ 312 US. at 64-65.

limited to capital crimes, nor does the obligation to afford a

remedy for treaty violations apply only in capital cases. The

import of LaGrand and Avena extends beyond the two LaGrand

brothers and the 51 named individuals in Avena: LaGrand and

Avena have stated an authoritative interpretation of the

underlying treaty which establishes the rule for deciding

comparable questions under the same treaty henceforth.

(Section I.D.)

Amici understand the position of respondents to be that

by virtue of Article 59 of the ICJ Statute,“ LaGrand and Avena

are not binding in respect of Mr. Sanchez-Llamas (whose case

was not before the IC] in Avena) or Mr. Bustillo (whose country

has not participated in [CJ dispute settlement under the

Optional Protocol). The United States as amicus curiae in

Medellin took positions that would confine the international

legal obligation flowing from Avena to the specific dispositive

provisions of that judgment, and the domestic legal obligation

to President Bush’s memorandum on compliance with Avena."

These litigation positions misconstrue the nature of ICJ

adjudication in cases of treaty interpretation and fail to

recognize the authority attaching to ICJ decisions, not only in

the jurisp rudence of that body, but also for national courts.

Article 59 of the [CJ Statute reflects the well-understood

position that the IC] does not have a formal rule of stare decisis,

while affirming the res judicata effects of the judgment in

respect of the matter decided. Even without stare decisis, the

reality is that once the ICJ has decided the merits of a question

of international law, that decision is authoritative

when corresponding questions arise later on. The ICJ

“has, indeed, never expressly departed from a previous

* Article 59 provides: “The decision of the Court has no binding force

except between the parties and in respect of that particular case.”

" See Brief for the United States as Amicus Curiae Supporting

Respondent, Medellin v. Dretke, 125 S.Ct. 2088, pp. 38-39 n. 12 (on

international legal obligation to comply with judgment but not with its

reasoning); Brief for the United States as Amicus Curiae, ex Parte Medellin

(Ct. Crim. App. TX, Sept. 2, 2005), p. 18 n. 2. Both U.S. amicus briefs take

the position that Avena has no domestic force except to the extent

implemented by the President's memorandum of February 28, 2005. Amici

respectfully disagree and urge this Court to apply Avena as the treaty-based

rule of decision, for the reasons set forth herein.

decision.”*? Not only does the ICJ follow its own precedents,

but this Court has taken ICJ judgments as authoritative

articulations of rules of international law,“ as have other

national tribunals,” even in matters concerning internal

criminal jurisdiction.”

“ See Maurice Mendelson, The International Court of Justice and the

Sources of Irternational Law, in Firry YEARS OF THE INTERNATIONAL COURT OF

Justice 63, 81 (Vaughan Lowe & Malgosia Fitzmaurice, eds., 1996); see

also E.W. Vierdag, The International Court of Justice and the Law of Treaties,

in ibid. at 145, 154 (“great care is always taken to demonstrate the internal

consistency of the Court's jurisprudence.”).

® See generally MOHAMED SHAHABUDDEEN, PRECEDENT IN THE WorLD

Court 26-31, 40-47, 63-65, 99-102 (1996) (on jurisprudential basis for ICJ

reliance on own precedents); 3 SHaBTa! ROSENNE, THE LAW AND PRACTICE

OF THE INTERNATIONAL Court, 1920-1996 1627-1635 (1997) (on precedential

effects beyond art. 59).

“ See, e.g., United States v. Maine, 475 U.S. 89 (1986); United States v.

Louisiana, 470 U.S. 93, 107 (1985); United States v. Louisiana, 394 U.S. 11

(1969) (all referring to the Fisheries case (U.K. v. Nor.), 1951 1.C.]. 116, as

legal authority in a maritime boundary dispute).

Jurisprudence of the International Court of Justice in National Courts, in

INTERNATIONAL Law Decisions IN NATIONAL Courts 335, 352-369 (Thomas

M. Franck & Gregory H. Fox eds., 1996) (invocation of IC] cases by courts

in Argentina, Canada, France, Israel, Italy, Japan, the Netherlands, New

Zealand, Norway, U.K. and U.S., and colonial and consular courts); see

also Mohammed Bedjaoui, The Reception by National Courts of Decisions

of International Tribunals, in ibid. at 21, 30-35; CuristopH C. SCHREUER,

DEcISIONS OF INTERNATIONAL INsTITUTIONS Berore Domestic Courts 33-34,

74, 86, 92, 98, 129-130, 199, 204, 221, 257-258 (1981) (similar).

“ After the ICJ decision in Arrest Warrant of 11 April 2000 (D.R. Congo

v. Belg.), 2002 ICJ 3, holding that Belgium was required to cancel an arrest

warrant for the sitting foreign minister of the Congo, Belgian courts not

only cancelled the specific warrant involved in the case but also dismissed

proceedings involving high-level officials of other states. Belgium’s

Supreme Court, acting in a case involving Prime Minister Ariel Sharon of

Israel, followed Arrest Warrant in finding the head of government to enjoy

immunity under international law. See Jan Wouters, The Judgement of the

International Court of Justice in the Arrest Warrant Case: Some Critical Remarks,

16 Letwen J. Inti L. 253, 266 (2003); see also Alain Winants, The Yerodia

Ruling of the International Court of Justice and the 1993/1999 Belgian Law on

Universal Jurisdiction, 16 LeivEN J. Int’t L. 491, 505-07 (2003) (Belgian court

decisions terminating prosecutions in Yerodia, Sharon, and Gbagbo following

IC) ruling altered outcomes from what advocates had expected under

preexisting understandings of legal doctrine and legislative intent).

When the IC] interprets a multilateral treaty, as it has done

in LaGrand and Avena, its decision addresses the objective

meaning of the treaty, which necessarily must apply

throughout the treaty space and not as some special rule

between litigants.” In the first case ever brought to the ICJ

under the Vienna Convention, United States Diplomatic and

Consular Staff in Tehran (U.S. v. Iran), the United States

insisted - and the ICJ underscored in its judgment - that

the import of the case transcended U.S.-Iranian bilateral

relations and involved community-wide interests under the

treaties involved. In Avena (para. 47), the IC] referred to

the Tehran Hostages case in the context of affirming that

the Vienna Convention “lays down certain standards to be

observed by all States parties,” and explained later in the

judgment (para. 151) that nationals of all states parties are

entitled to enjoy the rights and remedies elaborated therein.

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.

Up through the merits phase of Avena, the United States

maintained certain international and domestic litigation

positions that have now been definitively rejected in Avena.

To the extent that the lower courts may have acted on

assumptions that are now known to be inconsistent with

” See Bedjaoui, supra n. 45, at 27 (“Going by the rule, Article 59 confines

the effects of this interpretation to relations between the litigant States alone.

But in reality, it is virtually impossible for all the parties to a multilateral

convention (which may even be a universal one) to ignore the Court's

interpretation of this convention for long.”). See also Rosenne, supra n. 43,

at 1635 (quoting Aegean Sea Continental Shelf, 1978 IC] 3, 16, that “any

pronouncement of the Court as to [the 1928 General Act for the Pacific

Settlement of Disputes] may have implication in the relations between States

other than [the parties}.”). Because ICJ interpretations of multilateral treaties

inevitably bear upon other treaty parties beyond the specific disputants,

Article 63 of the IC) Statute instructs the IC] to notify all other parties to the

treaty who then can intervene in the case as of right.

* See, e.g., 1979 IC} Pleadings, United States Diplomatic and Consular

Staff in Tehran (U.S. v. Iran), pp. 11-12, 23-24, 169-170; United States Diplomatic

and Consular Staff in Tehran (U.S. v. Iran), 1979 ICJ 7, 19-20 (Provisional

Measures); 1980 IC] 3, 42-43 (Merits).

the treaty obligations of the United States, this Court should

instruct those courts to follow Avena and not to follow any

Executive Branch positions incompatible with Avena.

President Bush’s memorandum on compliance with

Avena acknowledges the party status of the United States

to the relevant treaties and the jurisdiction of the ICJ to

decide the dispute; further acknowledges the existence of

international obligations for the United States under Avena;

and provides that compliance in state courts will discharge

those obligations. Although the litigation position of the

Executive Branch seeks to confine the import of the

determination to the 51 individuals covered Avena, this

Court should recognize that the same treaty-based rule of

decision applies in petitioners’ cases as well. (Sections I.D,

III.A.)

Bearing in mind that the views of the Executive on

treaty matters are entitled to deference but are “not

conclusive upon a court called upon to construe such a

treaty in a manner involving personal rights,” see, e.g.,

Charlton v. Kelly, 229 U.S. 447, 468 (1913); Perkins v. Elg, 307

U.S. 325 (1939), this Court should endorse the Executive's

views that are compatible with protecting foreign nationals

in accordance with Avena but not follow Executive positions

that would give foreign nationals a lesser level of protection

than they are entitled to enjoy under Avena’s interpretation

of the Vienna Convention.” This Court has consistently

reserved to the judiciary the prerogative of protecting the

personal rights claimed by individuals under treaties

beyond the Executive position and has never been known

to restrict a treaty right that the Executive has acknowledged

or that is otherwise ascertainable as a matter of objective

treaty interpretation. Cf. Factor v. Laubenheimer, 290 U.S. 276

(1933) (interpretation expanding rather than restricting

treaty rights is to be preferred); Valentine v. United States ex

_---

® No issue is raised here of deferring to Executive foreign policy, apart

from the federal policy favoring treaty compliance in general and compliance

with Avena in particular. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 733

n.21 (2004); Republic of Austria v. Altmann, 541 U.S. 677, 701-701 (2004) (on

deference to the Executive for case-specific foreign policy reasons).

rel. Neidecker, 299 U.S. 5, 10-11 (1936) (rejecting claim of

Executive power as unsupported by treaty); Baker v. Carr,

369 U.S. 186, 212 (1962) (courts must resolve conflicts with

state law in favor of treaty compliance).

The jurisprudence of this Court accepts the authority

of the federal government to settle disputes with foreign

- governments in a manner that binds state courts. In United

States v. Belmont, 301 U.S. 324 (1937), and United States v.

Pink, 315 U.S. 203 (1942), this Court found that the federal

policy of the United States adopted in the context of

definitive resolution of disputes with the Soviet Union

would displace contrary state law. In American Ins. Ass'n v.

Garamendi, 539 U.S. 396 (2003), this Court confirmed that

an executive policy in favor of achieving “legal peace” with

foreign governments had to prevail over a state law

affecting the jurisdiction of state courts. Whatever might

be the limits of federal authority to resolve disputes with

foreign governments in some hypothetical scenario not

involved here,” it falls clearly within the core of federal

power under the Constitution to accept the outcome of a

treaty-based dispute resolution process as definitively

settling a dispute over treatment of foreign nationals by the

states and for this Court to ensure that state courts carry

out the treaty obligations in question.

° See also Dames & Moore v. Regan, 453 U.S. 654, 679-680 (1981)

(upholding executive power to settle claims through international dispute

mechanism). In Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 383 (2000),

this Court invalidated a state law that had embroiled the national

government for some time in an international dispute settlement procedure.

A fortiori, in the face of a binding judgment from treaty-based dispute

settlement, a state rule mast not impede treaty compliance and a judicial

remedy must be available.

** No question is presented here of constitutional rules on expenditures

from the Treasury, or of statutory restrictions on acceptance of a particular

dispute settlement procedure or explicit limitations on the effects of a

dispute settlement ruling within the U.S. legal system. Cf, e.g., Uruguay

Round Agreements Act, 19 U.S.C. §§ 3501, 3512(b)(2) (restricting legal

challenges to state laws in relation to dispute settlement procedures of

World Trade Organization).

Ultimately, it is the interpretation of this Court that

must have conclusive effect under the Constitution.* In

interpreting the legal obligations of the United States in the

instant case, it would be no mark of disrespect to the

Executive Branch, but a justified assertion of the role of this

Court consistent with the principle of separation of powers,

if the Court, as Amici urge, exercises its independent

judgment to accept the interpretation embodied in LaGrand

and Avena.

CONCLUSION

Amici urge this Court to ensure that actions and

omissions of the States of Oregon and Virginia are remedied

by the courts of those States, as proper organs of treaty

compliance. Refusal to grant the treaty-based remedy for

Vienna Convention violations as determined by the [CJ

would undermine the U.S. ability to insist on compliance

by other states with their obligations under the Vienna

Convention. Review and reconsideration of petitioners’

convictions and sentences is necessary to avoid the adverse

consequences that would result from failure to comply,

which could include prejudice in connection with dispute

settlement under other treaties.

By remanding with instructions to afford the remedy

of review and reconsideration required to redress the

violation of the treaty as interpreted in LaGrand and Avena,

this Court will fulfill its responsibility within our

constitutional system and will maintain compliance with

the international obligations of the United States.

* See Restatement, § 112(2) (“The determination and interpretation of

international law present federal] questions and their disposition by the

United States Supreme Court is conclusive for other courts in the United

States”) and comment a.

Respectfully submitted,

Of Counsel: Lori FisLer DaMRoscH

CHARLES OWEN VeRRILL, Jr. Counsel of Record

Joun B. REYNo.ps III 435 West 116" Street

Wicey Rein & 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

APPENDIX - LIST OF AMICI

Lori Fisler Damrosch is the Henry L. Moses Professor of

Law and International Organization at Columbia

University and editor of The International Court of Justice

at a Crossroads (1987). As an attorney in the US.

Department of State between 1977 and 1981, she was

one of the counsel for the United States in United States

Diplomatic and Consular Staff in Tehran (U.S. v. Iran)

_ 1979 ICJ 7, 1980 ICJ 3, and in the advisory opinion

proceeding on Interpretation of the Agreement of 25 March

1951 between the World Health Organization and Egypt,

1980 ICJ 73.

Thomas M. Franck is Murry and Ida Becker Professor of

Law Emeritus at New York University. He served as

judge ad hoc of the International Court of Justice in

Sovereignty Over Pulau Ligitan and Pulau Sipadan

(Indonesia/ Malaysia), 2001 ICJ 575, and as counsel for

Chad in Territorial Dispute (Libya/Chad), 1994 IC] 6,

and for Bosnia-Herzegovina in the cases concerning

Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia-

Herzegovina v. Serbia-Montenegro), 1993 ICJ 3, 325,

1996 IC] 595, and Application for Revision of the Judgment

of 11 July 1996 (Yugoslavia v. Bosnia-Herzegovina),

2003 ICJ 7.

Richard N. Gardner is Professor of Law and International

Organization at Columbia University and was

previously U.S. ambassador to Italy and Spain. As

Deputy Assistant Secretary of State for International

Organization Affairs, he was involved in the U‘S.

position in the Certain Expenses of the United Nations

advisory opinion proceeding, 1962 IC] 163. He served

as counsel for the United States at the ICJ in Elettronica

Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ 15.

Appendix

Louis Henkin is University Professor Emeritus at Columbia

~ University and a past president of the American Society

of International Law. He served as Chief Reporter for

the American Law Institute’s Restatement (Third) of the

Foreign Relations Law of the United States and is the

author of Foreign Affairs and the United States

Constitution (2d ed. 1996).

Andreas F. Lowenfeld is the Herbert and Rose Rubin

Professor of International Law at New York University

School of Law. He served in the Office of the Legal

Adviser of the U.S. Department of State between 1961

and 1966 and was Deputy Legal Adviser from 1964 to

1966. He was Associate Reporter for the American Law

Institute’s Restatement (Third) of the Foreign Relations

Law of the United States and acted as counsel for the

United States in Oil Platforms (lran v. U.S.), 1996_ICJ

803, 2003 IC] 161.

Bernard H. Oxman is Professor of Law at the University of

Miami School of Law and a former Assistant Legal

Adviser of the U.S. Department of State. He was a legal

consultant for the United States in Delimitation of the

Maritime Boundary in the Gulf of Maine Area (Canada/

U.S.), 1984 IC] 246.

W. Michael Reisman is the Myres S. McDougal Professor

of International Law at Yale University and a former

member and president of the Inter-American

Commission on Human Rights. He has served as

counsel in Maritime Delimitation and Territorial

Questions between Qatar and Bahrain (Qatar v. Bahrain),

2001 ICJ 40, and for the Philippines in Sovereignty over

Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia),

2001 ICJ 575.

Appendix

Stephen M. Schwebel was a judge of the International

Court of Justice from 1981 to 2000 and its president

from 1997 to 2000. Previously he served for fourteen

years in the Office of the Legal Adviser of the U.S.

Department of State, including as Assistant Legal

Adviser and Deputy Legal Adviser, in which offices

he represented the United States in the Certain Expenses

of the United Nations advisory opinion proceeding, 1962

ICJ 163; United States Diplomatic and Consular Staff in

Tehran (U.S. v. lran), 1979 ICJ 7, 1980 IC] 3; and in the

advisory opinion proceeding on interpretation of the

Agreement of 25 March 1951 between the World Health

Organization and Egypt, 1980 IC} 73.

Anne-Marie Slaughter is the Dean of the Woodrow Wilson

School at Princeton Univérsity and the immediate past

president of the American Society of International Law.

She was formerly the J. Sinclair Armstrong Professor

of Comparative and International Law at Harvard

University.

ee mmm me

E: “ILED :

. ; | } . , o \ “

| ae (a) (C) EL 22205

Bact DFFICE OF THE CLERK

Nos. 04-10566, 05-51} 3upREME COURT, US. |

Jn the Supreme Court of the Anited States

MOISES SANCHEZ-LLAMAS

Petitioner,

OREGON

MARIO A. BUSTILLO

Petitioner,

GENE M. JOHNSON,

DIRECTOR VIRGINIA DEPT. OF CORRECTIONS

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF OREGON AND

THE SUPREME COURT OF VIRGINIA

BRIEF FOR AMICI CURIAE LAW PROFESSORS IN

SUPPORT OF PETITIONERS

David Sloss, John F. Stanton’

Associate Professor of Law, “Counsel of Record

Saint Louis University Helen K. Michael

School of Law Howrey, LLP

3700 Lindell Blvd. 1299 Pennsylvania Avenue, N.W.

St. Louis, MO 63108 Washington, D.C. 20004

(202) 783-0800

Attorneys for Amici Curiae

TABLE OF CONTENTS

I ih I iriesisicisstecnecioncisininittcinsiewseieiicsiaiiaicrtianiaiainaiamimaiie

NE RT insistence csennnrr cnc

RN IN oi cis icctecocieehsscsdteySeestaie~ouiecticeaoemedbindiains

pe AMER ao ARID eRe DSi VeeSE NO ety mes RN

1. Decisions in Treaty Cases from 1789 to 1829 Support a

Strong Presumption in Favor of Judicial Remedies for

Violations of Individual Treaty Rights ..................cc:ccsscesseeceseseeeeeeeeeeeeeeee

A. This Court Regularly Granted Remedies to Plaintiffs

in Cases Where the Treaty at Issue Did Not Create a

Re ee OEE SI ne scncniicsccckaitninsivinceicaeisctinssiehidtiianinbiipebiaibae eamueiti

B. This Court Regularly Awarded Judgment for

Defendants in Cases Where the Treaty Did Not

Expressly Empower Individuals to Invoke the Treaty........................

C. The Cases Where Treaty Claimants Lost Are

Consistent with the Presumption in Favor of Judicial

Remedies for Violations of Individual Treaty Rights...................-...

D. Other Cases From This Period Are Consistent with

the Presumption in Favor of Judicial Remedies for

Violations of Individual Treaty Rights .................:ce:cceeceseecetee create

E. Foster is Consistent with the Presumption in Favor

of Judicial Remedies for Violations of Individual

Treaty Rights................ scaiesidaisedelghdhlasidiensnibactscdoaibainosactiihiadeicbeanaciotadoesitis

Il. More Recent Decisions by this Court Also Support a

Strong Presumption in Favor of Judicial Remedies for

Violations of Individual Treaty Rights ................0...ccceseceeseeeeeeeceeeeeeeenenes

III. Individuals Who are Harmed by Violations of Primary

Rights Protected by the VCCR are Entitled to Judicial

NED ainicsesecicdetaiebtiniisespiseoassisdsepdealieasiinbindnctedamiieareniiteniabelaiiaietaiiiiibtapinietaaabiiia 2:

A. Article 36 of the VCCR Protects Primary Individual

B. The State of Virginia May Not Invoke Procedural

Default Rules if Doing So Would Contravene U.S.

seh cociricdesnsktesisnesnteneniigiticennintiindiamstapninnmnnaitteticnbinn

a ee ia iccocenineeeionsdiervinsciatenstniatipathiadpgiibinnsntedentaveuaieniiniltnndiaanabiibiinetia

INDEX TO APPENDICES

I Weiviccinneminiiintininianhdianalpiodiibetaaiche ocieibeiehiiaiiciaamngiiellesatedtailaniaied

TABLE OF AUTHORITIES

Page(s)

CASES

American Insurance Associate v. Garamendi,

BERRA TERR OME ae FOr peer AE NL IY ER ROOD OR A 19, 20

Argentine Republic v. Amerada Hess Shipping Corporation,

aes Se I a Anektehiies seciesibiisiiahanniasstaianibiioscpiiiaadpadiscledibeaiseaintiijaiiciissiaeme ae

i TI, a i 19

ee Oe Re Fe rk Fe Ci ctcnsckinrripeicisadiditiiiiansiaiininaghininnepiieti 27, 28

Carneal v. Banks. 23 U.S. 181 (1825) adisechialaataihegtinhdapgtiedticheinecouiobaanieneieereiian 10

Chew Heong v. United States, 112 U.S. 336 (1884)... cccceceeeesseeeeeeeteceeeenee 18

Chirac v. Lessee of Chirac. 15 U.S. 259 (1817) .2..........cccsesecsseccssssssesessseseeres 7,8

Clee ec ee WE, TF Ce cr icctpcersinstiicelecnesinnsinnivnnciantionenpiactiintt 7.8

De la Croix v. Chamberlain. 25 U.S. 5399 (1827) ...........cccccccccsssecccecceeeescene sees 12

Edve v. Robertson (Head Money Cases).

a, i nah iat ln sabshatbemnivaanialenpsintenantsorerenipaentt 21, 23

Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 (181 SEEM aee ae! 10

Fitzsimmons v. Newport Insurance Company,

& U.S. 185 (1808).............. pebavaip di eaiedaiileesivaleebihesidipinnddlealcednadiienbdiadanbiaaiiibcabaacte 7.9

Fuster v. Malkaia, ST UB. BBD CAGED -csscsservesvsintstnnitaiaaiiaaal 11, 15, 16, 22

Geofroy v. Riggs, 133 U.S. 258 (1890) ....secccsscessssecsscssesesssssssesessssesssessessveveeeee 24

Goargpe v. Boablaferd, 3 UZ. 1. (3 TOD csesnevtsonsssvectssinincidavssisqatseipiamaadinaidiaianal 10

Guess v. The Sivap Bataap, 3.UD. SCT TID cecccssssncsstsccnistnsccnttatiamanmaa 12

Harcacrt v. Gabi, ZS UZ. SEB CAGED ciccscncvscacnstcnnpitsbunsiishgciattiameiiiaisenmasas 13

Piprdane vw. Pia, V6 UTD. Fe LOGI vccecsviciscsnssnsiielitnaadceisctialeieseiaiiaimimical 13

Henderson v. Poindexter’s Lessee, 25 U.S. 530 (1827) ......cccccceceececeseeeeeeeseeene 13

Higgonson v. Mein, 8 U.S. 415 (1808) .....:ccccsessessssecsesesssessesecsesseeseesecescnceseecs 7.9

Maghirk v. Ball, FU. 454 (GBB) ccoviccecsrenstiniasresncssientssetiiiciumanials 7.9

Hughes v. Edwards, 22 U.S. 489 (1624).....c..cscossescocsosossvsssessssosecssssssssasciecssess 7.8

Spolenans wv. Ciartan, 16: U.S. § CUB cccicictaivvtcntsctusscipitstitvatriisiaimininsaiaaaic 10

M'Ilvaine v. Coxe's Lessee, 8 U.S. 209 (1808) .......cccecececcsseceececscesesesececerseeenes 12

Sdasbery v. Adamdiagn, U.S. 137 (TP ncctcsccciscasscrsscusssinpcveriiaianmndbeiodsaaiadan 5

Moodie v. The Ship Phoebe Anne, 3 U.S. 319 (1796) 2.0.0... .ccccccceceececeeceeeeeeee, 10

Norton v. Southern Utah Wilderness Alliance,

Oe IE. GE Cp icecientasinttesutinsiasias soasecesenesereressaceressensnssenssesenseensescasseenenaseneee 4

Ogden v. Blackledge, 6 U.S. 272 (1804).......ccseccecescceseeseeseeseeeeettescoseee ecacesee. 9

Gee v. Madgpan, 07 U.S. 463 C9BIDI.cccitconenienanciebaa ee 10

Owings v. Norwood’s Lessee, 9 U.S. 344 (1809) .2...cc occ ccccccceeeececeusees 5.14

Powell v. McCormack, 395 U.S. 486 (1969) .......cc.c cc ccccccccescssecececesecececseccceccece. 6

Smith v. Maryland, 10 U.S. 286 (1810) ......e..se-ssesssscesseesesesseesecessesesesssessseceseee 12

Society for Propagation of Gospel v. New Haven,

I TnI Tdi etnnne tnecpnmnnndnindnenniemiondecnmbeianndseeneslesniies 7,8

SG aN 13

EE, ee 12

The Bello Corrunes, 19 U.S. 152 (1821) .........cceeeeeee inahiileihiheniniiaiiibiiniehnantiiil 6

ET A AS ER Le oe ER 12

The Nuestra Senora de la Caridad, 17 U.S. 497 (1819) .....cccccccccccececececececeeeeee 12

I a ctilciiceteisdvenniilienides 7

Ny Oh UNO, DG, le 0 FINE Pc cccincscessnacrcncncnsncnsccenessencnnsseonsnntinns 13

United States v. ates I 17, 18

United States v. The Schooner Peggy, 5 U.S. 103 (1801) ...........ccceceeeeees 7,9

Se Se OD nals tensthcesnaitnenepusticigciniemesinetiamnananenatiantanae 7,9

STATUTES

Agreement Concerning the Foundation “Remembrance,

Responsibility and the Future,” U.S.-F.R.G. 39 I.L.M. 1298 200.0...........ccccceee. 20

Treaty Concerning Immigration, Nov. 17, 1880 U.S.-China,

Tiel hit acca ten elaine ciaiaitnadennhennenntnadintimmnipmeiamneei 18

Treaty of Commerce and Navigation, Feb. 21, 1911, U.S.-

Japan, 37 Stat.1504........... al diaicaniistidiiataltna stink iniatatiraieabiied 5 PORTE SELLER 19

IES UPI, SEs dace caiiaidabuibdpabenenbadeeennnndasaninenesotanaenedaniene 28

TF ERNE AN RSNA N it RENO BD

OTHER AUTHORITIES

Avena and Other Mexican Nationals (Mexico v. United

RD Te ee Be cincsncticieceiensrepstieanvltenninenaninaemmmameaatiin

Martin S. Flaherty, History Right?: Historical Scholarship,

Original Understanding, and Treaties as “Supreme Law of

the Land,” 99 COLUM. L. REV. 2095 (1999) 2.0.0.2... cccceceeseceeeeeeeees

Henry M. Hart, Jr. & Albert M. Sacks. THE LEGAL

PROCESS: BASIC PROBLEMS IN THE MAKING AND

APPLICATION OF LAW (Eskridge & Frickey. eds. 1994) ............0.0...

David Sloss, Constitutional Remedies for Statutory Violations.

te Ee

Restatement (Third) of the Foreign Relations Law of the

SIE LOM EE CE TORT NR

Carlos M. Vazquez. Treat-Based Rights and Remedies of

Individuals, 92 COLUM. L. REV. 1082 (1992)..........c.c00.:cccecceceeseeeeee

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INTEREST OF AMICI CURIAE

Amici cunae respectfully submit this bnef addressing

the question whether the Vienna Convention on Consular

Relations creates individually enforceable nghts. Amici are

professors of law whose areas of expertise include

international law, federal courts, and U.S. foreign relations

law. We have an interest in providing this Court with an

historical perspective on the judicia] enforcement of treaties

in U.S. courts. Amici are listed in the appeadix to this brief.

SUMMARY OF ARGUMENT

Article 36(1) of the Vienna Convention on Consular

Relations (VCCR) protects the primary nghts of individuals.

Under the Supremacy Clause. state courts are bound to

enforce the treaty on behalf of individuals whose pnmary

nghts are violated. Analysis of Supreme Court decisions in

the first forty vears of U.S. constitutional history shows that

the Framers believed that courts do not need express

authorization from the political branches to provide

individual remedies for violations of treaty mghts. In

accordance with the Framers’ onginal understanding.

individual defendants like Mr. Sanchez-Llamas have the

capacity to invoke a treaty before a domestic court if they

were harmed by a violation of their treaty-based pnmary

rights, even if the treaty at issue is silent with respect to

domestic judicial remediez Similarly, individual plaintiffs

have the capacity to invoke a treaty before a domestic court

if domestic law grants them a night of access to court (as the

| The parties” letters of consent to the filing of amici bnefs have

been lodged with the Clerk. Pursuant to Rule 37.6 of the Rules of

the Court, amici cunae state that no counsel for a party has written

this bnef in whole or in part and that no person or entity. other

than amici. their members. or their counsel. has made a monetary

comtribution for preparing or submitting this bref.

Virginia habeas statute does for Mr. Bustillo) and they were

harmed by a violation of their treaty-based primary rights,

even if the treaty at issue is silent with respect to domestic

judicial remedies.

In State v. Sanchez-Llamas, the Oregon Supreme

Court adopted a presumption that individual litigants cannot

obtain remedies for treaty violations unless the treaty itself

creates a private nght of action. That presumption is

contrary to the Framers’ onginal understanding of the

judiciary’s role in treaty enforcement. Between 1789 and

1829, this Court decided 34 cases in which an individual

litigant raised a claim or defense on the basis of a treaty. In

every case where the Court found a violation of an

individual’s treaty-based pnmary night - a total of 18 cases —

the Court granted a remedy. In two of those 18 cases, the

individual sued to enforce a treaty that created an express

private right of action. In the other 16 cases, though, the

Court awarded a remedy even though the treaty at issue did

not create a private night of action. This consistent pattern of

Supreme Court decisions during the first forty years of U.S.

constitutional history provides powerful evidence of the

Framers’ views. These cases demonstrate that the

presumption adopted by the Oregon Supreme Court is

contrary to the Founders’ original understanding of the

judiciary’s role in treaty enforcement.

The Oregon Supreme Court’s presumption against

judicial remedies for treaty violations is also squarely at odds

with two centumes of consistent Supreme Coun

jurisprudence. For more than two hundred years, this Court

has consistently granted judicial remedies in cases where a

treaty protects an individual's primary nghts and those treaty

nghts have been violated. In fact. this Court has never

denied a judicial remedy to an individual whose treaty nights

were violated, except in cases where Congress enacted a

Statute that superseded the treaty under the later-in-time rule.

There is no dispute that Article 36 of the VCCR is the

Law of the Land under the Supremacy Clause. Moreover, it

is evident from the plain meaning of Article 36 that the treaty

protects the primary rights of individuals. Therefore, this

Court should hold that any individual who has been harmed

by a violation of his primary rights under Article 36 is

entitled to a judicial remedy for that violation, except insofar

as amendments to the federal habeas statute enacted after

ratification of the VCCR may preclude the availability of

federal habeas relief for some petitioners who would

otherwise be entitled to a judicial remedy.

ARGUMENT

I. DECISIONS IN TREATY CASES FROM 1789

TO 1829 SUPPORT A STRONG PRESUMPTION

IN FAVOR OF JUDICIAL REMEDIES FOR

VIOLATIONS OF INDIVIDUAL TREATY

RIGHTS

Treaties frequently create primary rights for

individuals. For the purpose of this brief. an individual has a

“primary right” under a treaty if a state party to the treaty has

a legal duty under the treaty to behave in a particular way, or

to refrain from behaving in a particular way, with respect to

that individual. See generally Henry M. Hart, Jr. & Albert

M. Sacks, THE LEGAL PROCESS: BASIC PROBLEMS IN THE

MAKING AND APPLICATION OF LAW (Eskridge & Frickey,

eds. 1994), at 130-31 (defining primary duties), and at 136-

37 (noting that a “primary right” is “the mere obverse™ of a

duty). Treaties rarely, though, explicitly address the question

whether individuals have a private right of action — that is, a

nght of access to domestic courts. Similarly. treaties usually

do not explicitly address the question whether individuals

have the power to invoke the treaty before a domestic court.

The Oregon Supreme Court assumed that individuals

cannot enforce their primary nights under the VCCR unless

the Convention itself creates a private right of action. See

State v. Sanchez-Llamas, 108 P.3d 573, 575-78 (Or. 2005).

That assumption 1s clearly mistaken. In the statutory context,

the Administrative Procedure Act (APA) creates a private

right of action that authorizes individual suits to enforce

federal statutes that do not themselves create a private cause

of action. See, e.g., Norton v. S. Utah Wilderness Alliance,

542 U.S. 55. 61 (2004) (where plaintiffs sued to enforce a

Statute that did not create a private night of action, Justice

Scalia, wnting for a unanimous court, held that “{t]he APA

authorizes suit” for federal statutory violations “[wJhere no

other statute provides a private nght of action”). Similarly.

Virginia's habeas corpus statute grants Mr. Bustillo a private

nght of action to advance his claim “that he is detained

without lawful authority,” Va. Code § 8.01-654. and the

Supremacy Clause requires the Virginia courts to apply the

VCCR as a rule of decision to decide the merits of that claim.

(Since Mr. Sanchez-Llamas is a defendant in a criminal

proceeding. the question of a nght of action does not arise

because he was haled into court against his will.)

Between 1789 and 1829. this Court consistently

granted remedies to individuals who were harmed by

violations of their treaty-based primary rights, despite the

fact that the treaties at issue did not create private rights of

action and did not expressly empower individuals to invoke

the treaties before a domestic court. During this period, the

Court decided 34 cases in which an individual litigant raised

a claim or defense on the basis of a treaty.* All 34 cases are

consistent with the following rule: if an individuai was

harmed by a past violation of his primary treaty rights, or if

he is likely to be harmed by a future violation of those rights,

then the individual is entitled to a judicial remedy, even if the

treaty itself does not create a private nght of action, and even

if the treaty says nothing about the capacity of individuals to

invoke the treaty before a domestic court. This rule is a

corollary of the principle endorsed by the Supreme Court in

Marburv v. Madison “that where there is a legal nght, there

is also a legal remedy . . . whenever that right is invaded.” 5

U.S. 137. 163 (1803) (quoting Blackstone’s Commentaries).

If a particular treaty provision is the Law of the Land under

the Supremacy Clause, and that provision protects primary

individual nghts, the Marbury principle establishes a strong

presumption that individuals who are harmed by a violation

of their treaty-based primary rights are entitled to domestic

judicial remedies. See Owings v. Norwood's Lessee. 9 U.S.

344. 348 (1809) (Marshall. C.J.) (“Each treaty stipulates

something respecting the citizens of the two nations, and

gives them nghts. Whenever a right grows out of, or is

protected by, a treaty, it is sanctioned against all the laws and

judicial decisions of the states. and whoever may have this

nght. it 1s to be protected.”).

Part One of this bref demonstrates that all 34 treaty

cases decided by the Supreme Court between 1789 and 1829

are consistent with the Marburv principle. These consistent

precedents in the Framing Period provide particularly

powerful evidence of the Framers’ views concerning the

judiciary’s role in the enforcement of treaties. This Court has

emphasized that the force of constitutional precedents “tends

> This figure does not include cases involving treaties with

Indian tribes.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.