Amicus Curiae Brief — Sanchez-Llamas v. Oregon

5

Curiae Law Professors in Support of Petitioners, at 5, argues

in particular that:

“(If an individual 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 right of action, and even if the treaty

says nothing about the capacity of individuals to invoke

the treaty before a domestic court.”

This proposal should be compared with the four-factor test of

Cort v. Ash, 422 U.S. 66 (1975), which for some years was

invoked by this Court as the basis for implying a private right

of action from a statute. The proposal would go much further

than did the now discredited Cort test, because it would

mandate private enforcement even if only one of the Cort

criteria were met, namely if the plaintiff is a member of a

class for whose especial benefit a measure was adopted.

Yet the reasons for not implying a private right of en-

forcement from the unadorned language of a treaty provision

are, if anything, stronger than those for not reading private

enforcement rights into a statute. First, treaty rights by their

nature involve the obligations of not just the United States,

but of the other parties to the compact. Yet private judicial

enforcement of treaty rights in other countries, absent clear

and explicit provision, is unheard of. Thus, private enforce-

ment in the United States would create a_ substantial

asymmetry in the burdens borme by the United States.

Second, treaty obligations, unlike statutes, cannot be amended

unilaterally by the President and Congress. Rather, clari-

fication of a treaty in light of a judicial determination that

does not reflect the intent of the parties requires a new treaty

negotiation and unanimous assent of all treaty parties. These

institutional impediments to treaty adoption and imple-

mentation suggest that this Court should not lightly read

private enforcement into treaties.

6

On numerous occasions Congress has provided expressly

for private enforcement of treaty rights. The most common

instance involves dispute settlement processes that have the

capacity to produce monetary awards. The United States both

has signed treaties with individual states to resolve particular

disputes and joined multilateral regimes that create a means

for addressing prospective controversies. In these instances,

Congress has enacted separate legislation providing for the

domestic recognition of the decisions of these tribunals.

Where no separate authorizing legislation applied, this Court

refused to give effect to a tribunal award. See, e.g., La Abra

Silver Mining Co. v. United States, 175 U.S. 423 (1899)

(claim derived from Convention Between Mexico and the

United States of 1868 subject to judicial consideration only

pursuant to 1892 statute); United States v. Blaine, 139 U.S.

306, 323 (1891) (same Convention: “The government as-

sumed the responsibility of presenting his claim, and made it

its own in seeking redress in respect to it.”); United States v.

Weld, 127 U.S. 51 (1888) (1871 Treaty of Washington);

Alling v. United States, 114 U.S. 562 (1885) (1868 Mexico-

United States Convention); Great Western Insurance Co. v.

United States, 112 U.S. 193 (1884) (1871 Treaty of Wash--

ington); Frelinghuysen v. Key, 110 U. S. 63, 74 (1884) (1868

Mexico-United States Convention: “No nation treats with a

citizen of another nation except through his government.”’).

Two modern multilateral regimes to which the United

States is a party similarly reflect this pattern. The United

Nations Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517,

T.I.A.S. No. 6997, provides for the recognition and enforce-

ment of commercial arbitration awards. The United States

both joined the treaty and enacted 9 U.S.C. §§ 201-07, which

gives domestic force to the treaty rights by expressly

authorizing judicial enforcement. Similarly, the Convention

on the Settlement of Investment Disputes Between States and

Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1270,

a2 oe ee SER eee —— > a ¢ ee eS eee —_

7

T.LA.S. No. 6090, 575 U.N.T.S. 159, obligates the United

States to give effect to arbitration awards in investment

disputes. Congress then enacted a statutory provision

enabling courts to enforce these awards. 22 U.S.C. §§ 1650,

1650a (2001). Significantly, Congress provided for the

special case of enforcement of an international arbitral award

against the United States with yet another statute, 28 U.S.C.

§ 2414 (2001), that gives the Attorney General the discretion

to approve payment except in cases where, under authority

provided by 22 U.S.C. § 1650a(b), a federal district court has

ordered enforcement.

Whatever the practice of this Court in the period before

Erie R.R. v. Tompkins, 304 U.S. 64 (1938), when federal

courts freely drew on a wide range of sources to craft rules of

decision in federal cases, its modern practice has been not to

infer an intention to authorize private enforcement of a treaty

in the absence of either a separate statute or otherwise clear

treaty language and manifest intent of the President and the

Senate to do so. See, e.g., Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 442-43 (1989) (treaties

not intended to create judicially enforceable private rights). It

is this practice that provided the contemporary background to

the decision of the President and the Senate to adhere to the

Vienna Convention in 1969.

Express authorization of judicial enforcement of treaties is

the norm; the instances since Erie where this Court has found

that a treaty independently provides for private enforcement

are rare. For example, the Convention for the Unification of

Certain Rules Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11,

reprinted in note following 49 U.S.C. § 40105 (2001),

commonly known as the Warsaw Convention, addresses di-

rectly the rights of carriers, shippers and passengers engaged

in international air transport, using mandatory language that

is typical of private law statutes. Not surprisingly, the

signatories to this Convention have treated it as supple-

8

menting the rules of law that courts can apply to private

disputes. E.g., Olympic Airways v. Husain, 540 U.S. 644

(2004) (deriving rule of decision from Warsaw Convention in

private litigation); Eastern Airlines v. Fioyd, 499 U.S. 530

(1999) (same). But nowhere has any signatory country’s

domestic court, much less this Court, inferred from the

Warsaw Convention a power of a private person to seek

judicial redress against a state that does not fully implement

its obligations under the Convention. '

B. The Executive Branch’s Interpretation of

the Vienna Convention is Entitled to Great

Deference

The Executive branch consistently has interpreted the

Vienna Convention as not conferring judicially enforceable

rights on criminal defendants. The State Department artic-

ulated this interpretation to the Senate in 1969, when the

Convention was being considered for ratification, and in a

letter to all 50 state governors immediately following

ratification. See S. Exec. Rpt. No. 9, at 18 (1969) (quoting the

State Department’s representation that “[t}he Vienna Con-

vention does not have the effect of overcoming Federal or

State laws beyond the scope long authorized in existing

' Amici cite American Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003),

as an instance where this Court implied a private right to judicial

enforcement from executive agreements regarding the claims of Holocaust

victims. Brief for Amici Curiae Law Professors in Support of Petitioners

at 19-20. But, as this Court noted, the executive agreements at issue in

Garamendi were not treaties, but rather an expression of the “foreign

policy of the Executive Branch” with which a California statute interfered.

539 U.S. at 413. The significance of the policy of the Executive as a basis

for preempting state law that interferes with its conduct of foreign

relations rests on constitutional grounds that are independent of treaty

interpretation. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981);

Zschernig v. Miller, 389 U.S. 429 (1968); United States v. Pink, 315 U.S.

203 (1942).

9

consular conventions.”); United States v. Li, 206 F.3d 56, 64

(ist Cir. 2000) (quoting the State Department legal advisor’s

1970 letter denying that “the Vienna Convention wil] require

significant departures from the existing practice within the

several states of the United States”). More recently, the State

Department has emphasized that “such a statement would not

have been made if the Department of State had contemplated

that the [Vienna Convention] might require that failures of

consular notification be remedied in the criminal process

through prejudice hearings, and possibly the suppression of

evidence or the undoing of other aspects of the criminal

process.” Department of State Answers to the Questions

Posed by the First Circuit in United States v. Nai Fook Li

(Oct. 15, 1999) (available at http://www.state.gov/documents/

organization/7111.doc).

The Executive’s representations to the Senate, the States,

and-the courts are mirrored in its actual practice imple-

menting the Vienna Convention. As the Solicitor General

explained just last year:

The State Department’s longstanding practice has been

to investigate a country’s complaint about the absence of

notification. When a violation has been confirmed, the

State Department has extended a formal apology to that

country’s government and sought to prevent a recurrence

through educational efforts.

Brief for the United States as Amicus Curiae in No. 04-5928,

Medellin v. Dretke, at 22-23.

The State Department has taken an identical position on

behalf of the United States when appearing before interna-

tional tribunals. The first was Paraguay’s suit in the Inter-

national Court of Justice (ICJ) over Vienna Convention

violations in the case of Angel Breard. Paraguay alleged

that the Convention entailed an enforceable right to over-

10

turn Breard’s conviction. The State Department, however,

insisted that:

“There is absolutely no support for this claim in the

language of the [Vienna] Convention. The Court should

not read into a clear and nearly universal multilateral

instrument such a substantial and potentially disruptive

additional obligation that has no support in the language

agreed by the parties.” }

Verbatim Record (Paraguay v. U.S.), 1998 L.C.J. 426, at 3.20.

Likewise, before the Inter-American Court of Human Rights,

the Department argued that the Vienna Convention “does not

require the domestic courts of State parties to take any actions

in criminal proceedings, either to give effect to its provisions

or to remedy their alleged violation.” Written Observations of

the United States of America, Request for Advisory Opinion

OC-16, June 1, 1998 (corrected June 10, 1998).

Most recently, in its brief to this Court in Medellin v.

Dretke, the United States reiterated that “[t}he Executive

Branch has never interpreted the Vienna Convention to give a

foreign national a judicially enforceable right to challenge his

conviction and sentence.” Brief for the United States as

Amicus Curiae in No. 04-5928, Medellin v. Dretke, at 22-23;

see also Brief for the United States as Amicus Curiae in Nos.

97-1390 and 97-8214, Republic of Paraguay v. Gilmore &

Breard v. Greene, at 18-23 (taking the same position). The

Executive’s interpretation is thus emphatic, consistent, and

longstanding. It has been advanced in legislative, judicial, and

international fora, as well as in the State Department’s day-

to-day practice. And it is consistent with the Depart-

ment’s interpretation of other treaties that employ similar

language to the Vienna Convention. See Brief for the United

States as Amicus Curiae in No. 04-5928, Medellin v. Dretke,

at 25-26 (discussing the International Convention for the

Suppression of the Financing of Terrorism).

1]

“Although not conclusive, the meaning attributed to treaty

provisions by the Government agencies charged with their

negotiation and enforcement is entitled to great weight.”

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,

184-85 (1982). Judges Selya and Boudin have explained that

this deference arises not only “because the State Department

negotiates and administers such treaties,” but also “because,

when foreign affairs are involved, the national interest has to

be expressed through a single authoritative voice. That voice

is the voice of the State Department, which in such matters

speaks for and on behalf of the President.” Li, 206 F.3d at 67

(Selya & Boudin, JJ, concurring). Should this Court reject a

position taken so emphatically and consistently by the United

States in international fora, it would risk undermining the

credibility of the Government in future litigation and

negotiations. That risk should counsel deference to the

Executive’s consistent interpretation.

C. The Practice of Other States Confirms That No

Judicially Enforceable Right Inheres in the

Vienna Convention

There are only a handful of reported foreign judicial

decisions about enforcement of the Vienna Convention. What

precedent exists, however, indicates that criminally accused

in other countries do not have the right to obtain independent

judicial enforcement of the Vienna Convention.

The leading case is Regina v. Partak, 160 C.C.C. (3d) 553

(Ontario Sup. Ct. Jus. 2001), which involved a U.S. citizen

whom Canadian police did not inform of his right to consular

access when arresting him for murder. The Canadian court

ruled that, although the police conduct had violated the

accused’s rights under Article 36 of the Convention, this

violation did not give rise to any independent basis for

judicial relief. Instead, the court applied the same standards

applicable to a Canadian subject to determine whether the

12

accused had received proper notice of his right to counsel and

had made a voluntary confession.

Similarly, a German court also assumed that Article 36

operated for the benefit of individuals but did not regard that

provision as having any impact on the judicially enforceable

rights of a criminal accused. Bundesgerichtshof [BGH]

[Federal Court of Justice] Nov. 7, 2001, 5 BGHSt 116/0,

published in NStZ 2002, 168 (F.R.G.). Moreover, German

practice generally reflects the prevailing view of the means of

enforcement of the Vienna Convention, namely that a state

rectifies its violation of Article 36 by providing to its treaty

partner an apology and assurance on future precautions. See

LaGrand (Germany vy. United States), 2001 L.C.J. 104, at | 63

(describing German practice).

Neither counsel for petitioners nor the many amici who

have filed briefs in their support have discovered a single case

where a foreign court has understood the Vienna Convention

as obligating it to entertain private claims based on its vio-

lation.* Our research also has failed to uncover any such case.

While the practice of other nations in the application of a

multilateral treaty are not binding on this Court, they do

provide substantial evidence of what the makers of that treaty

intended. Here the practice of signatory states is fully con-

sistent with the position that the Vienna Convention does not

? The Brief of Former United States Diplomats as Amici Curiae in

Support of Petitioners, at 20, cites the Canadian and German decisions

discussed above as authority for the proposition that Canadian and

German courts “have accepted as binding the ICJ’s interpretation that the

VCCR creates judicially enforceable rights.” This is wrong. First, the

Canadian decision contains no reference to any ICJ decision at all, and the

German decision made no reference to the ICJ’s views on judicial

enforcement. Second, in each instance the court ruled that the Vienna

Convention did not authorize national courts to provide any special

remedies where the police failed to honor the notification obligation.

13

of its own force authorize national courts to entertain private

efforts to enforce its obligations.

D. The Court Should Avoid an Interpretation of

the Vienna Convention That Will Discourage

the United States from Entering into New

Treaty Commitments

The recognition by this Court of a private right to seek

judicial enforcement of the Vienna Convention would do

more than impose on the United States a burden that no other

national court has placed on any state that adheres to that

treaty. It would establish a precedent for implication of

private enforcement of international treaties more broadly.

Such a precedent would cast a pall on all future U.S. treaty

negotiations, at least where the interests of individuals were

potentially at issue.

Since the conclusion of World War II, the Executive and

Congress have manifested a persistent concern that the

assumption of international obligations by the United States

would lead to new assertions of claims for judicial relief by

private persons, with attendant uncertainty and potentially

undesirable outcomes. During the 1950s the Senate came

within a single vote of recommending a constitutional

amendment that would have precluded any treaty from having

any domestic legal effect. President Eisenhower at that time

initiated a practice of reassuring the Congress that the

Executive would not seek to use international agreements

as a general means for changing domestic law. See Curtis

A. Bradley, Foreign Affairs and Domestic Reform, 87 VA. L.

REV. 1475 (2001). Later administrations have adhered to

this path.

On some occasions, the President and the Senate have

taken extra measures to ensure that the judiciary does not

interpret a treaty as creating new rights for which individuals

can seek judicial enforcement. The practice of announcing

14

“reservations, understandings and declarations” (RUDs) at

the time of signing or approving a treaty has become common

since the Carter Administration. Typically a RUD contains a

Statement to the effect that the United States does not re-

gard the treaty as operating independently of the existing

mechanisms for protecting individual interests under U.S.

law. For a comprehensive review of the practice, see Curtis

A. Bradley & Jack L. Goldsmith, Treaties, Human Rights,

and Conditional Consent, 149 U. PA. L. REV. 399 (2000).

It would be wrong, however, to assume that the President

and the Senate intend a treaty to create judicially enforceable

private rights in all instances where a RUD is not made. First,

the practice is precautionary and does not permit any negative

inference. Second, some authorities have questioned whether

it is even possible for a RUD to be effective. Not only have

scholars argued that the Constitution forbids the President and

the Senate from imposing any limitation on the domestic

effect of an international treaty, e.g., Louis Henkin, U.S.

Ratification of Human Rights Treaties: The Ghost of Senator

Bricker, 89 Am. J. INT’L L. 341 (1995), but at least some

judges have embraced the argument. E.g., /gartua-De La

Rosa v. United States, 415 F.3rd 145, 189-90 (1st Cir. 2005)

(Howard, J., dissenting).

Sound regard for the President’s responsibility to conduct

the international affairs of the United States requires a strong

presumption that, in the absence of very clear treaty language

and confirmatory evidence of party intent from the Executive

and the Senate, treaty obligations do not create private

entitlements to judicial relief. Any other rule is likely to

reduce both the number and quality of international commit-

ments that will be undertaken by the United States.

Nothing other than the national interest and a desire to

ameliorate international problems compels the Executive to

enter into treaty negotiations. The Senate historically has

exercised its advise and consent power with great circum-

15

spection and often has refused to approve treaties that present

a risk of unforeseeable domestic legal developments. The

predictable outcome of a presumption in favor of private

enforcement thus would be fewer and lesser treaties,

undermining U.S. objectives in international cooperation.

These risks are illustrated by recent litigation over the

Vienna Convention. Until 2005, the United States was a party

to the Optional Protocol to the Vienna Convention on

Consular Relations Concerning the Compulsory Settlement of -

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

(Optional Protocol), a treaty that gave the [CJ the authority to

hear disputes between parties to the Convention. Concerned

that some U.S. courts might treat the decisions of the ICJ as a

binding rule of decision that private persons could invoke in

their lawsuits, the President decided to withdraw from the

Optional Protocol.’

The building of international law through treaties and other

international agreements is both critical and valuable. The

President and the Senate must engage a fast changing, and not

always benign, world with a full array of legal resources. This

exercise of the foreign affairs power and the treaty power

itself will be thwarted by appending an unpredictable set of

civil lawsuits and criminal defenses to-silent treaty texts.

Criminal law enforcement in our constitutional system is

handled by hundreds of thousands of federal, state, county,

and local police officers. The potential disruption to thous-

ands of criminal prosecutions, including grave crimes that

involve victim's rights, is not to be lightly entertained.

’ Nor was this an idle fear. Months after the denunciation of the

treaty, one Court of Appeals asserted that “we are of the opinion that the

United States is bound by ICJ rulings in cases where it consented to the

court's jurisdiction, just as it would be bound by any arbitral procedure to

which it consented . . .” Jogi v. Voges, 425 F.3rd 367, 384 (7th Cir. 2005).

16

In recognition of these exigencies, this Court should clarify

the law applicable to the domestic enforcement of treaties to

make clear to the political branches what the international

obligations that they contemplate will mean in terms of

domestic consequences. In particular, this Court should sup-

port the constitutional role of these branches as the masters of

our nation’s international commitments.

Il. NEITHER COMITY NOR THE NEED FOR

UNIFORMITY IN TREATY INTERPRETATION

JUSTIFIES A CONCLUSION THAT~ THE

VIENNA CONVENTION FORBIDS A STATE

FROM APPLYING A NEUTRAL PROCE-

DURAL RULE TO FORECLOSE UNTIMELY

ASSERTIONS OF A CLAIM OTHERWISE

ASSERTABLE UNDER THAT TREATY

Petitioners argue that this Court should follow the ICJ’s

interpretation of the Vienna Convention. Without warrant in

the language of the Convention, the ICJ has asserted that

Article 36 operates for the benefits of individuals, that the

Convention entitles persons who have not received the

requisite notification of a right to consular access to a judicial

hearing as to whether the treaty violation has prejudiced

them, and that this entitlement cannot be made contingent on

timely assertion of the violation. All three of these inter-

pretations are wrong. Moreover, no reason exists for this

Court to privilege the interpretation of the ICJ over the

interpretation consistently offered by the Executive.

A. The Doctrine of Comity Traditionally Has Been

Applied to the Decisions of Foreign States,

Not Those of an International Organization

Created by Treaty

Petitioners argue that this Court must follow the ICJ’s

interpretation of the Vienna Convention as a matter of com-

17

ity. But this argument is inapplicable under the circumstances

of this case.

First, the ICJ’s interpretation cannot be reconciled with the

language of the treaty or general international practice. Until

the ICJ’s decisions in the several Vienna Convention cases,

no responsible decisionmaker had suggested that treaty

commitments otherwise silent on the issue would override

neutral and longstanding domestic rules regarding the time-

liness of asserting claims and procedural default.

Second, the doctrine of comity, which has its origins in the

Treaty of Westphalia and the concepts of sovereign power

arising from the settlement of the Thirty Years War, applies

to sovereigns, not to international bodies that themselves are

the product of international agreements. Hilton v. Guyot, 159

U.S. 113, 164 (1895), clearly states that comity constitutes

“the recognition which one nation allows within its territory

to the legislative, executive, or judicial acts of another

nation.” (emphasis added). This limitation on the doctrine of

comity is not a mere formality: International law rests on the

choices and behavior of states. An international organization

such as the ICJ is a creature of-the international instrument

that creates it, and has only such authority as that instrument

specifies, and hence the signatory states authorize. Extending

the authority of an international body through common law

doctrines such as comity undermines, rather than reinforces,

the choices that signatory states made in the body’s foun-

dational instrument.

International law traditionally has involved rules created by

states that constrain the otherwise unfettered exercise of

national sovereignty. But an international organization such

as the ICJ has no independent sovereignty, and thus nothing

to surrender through international bargaining. Rather, an

international body’s authority is the product of bargaining

among the states that create it. Comity, which grows out of

both respect for another nation’s sovereignty and an expec-

18

tation of reciprocity, thus has no bearing on an international

entity such as the ICJ, which lacks both sovereignty and the

capacity to act reciprocally.

Nor is the ICJ, in its role as an adjudicative body inter-

preting the Vienna Convention in the course of resolving

inter-state disputes properly before it, analogous to a domes-

tic agency charged with interpretation of a statute. We do not

question the need for judicial deference to a domestic

agency’s exercise of the discretion left to it by Congress to

elucidate the meaning of the statute that it administers.

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 843-44 (1984), But an international court

does not stand in the same position as does a domestic agency

in its effect on the domestic law of the United States. There is

no sound basis for inferring from any supposed ambiguity in

treaty language a delegation to an international agency of the

authority to provide an authoritative, binding interpretation of

its meaning.

First and most important, the formulation of a statutory

interpretation by a domestic agency is subject to numerous

procedural and institutional constraints during its promul-

gation and can always be changed by a simple legislative

enactment. An international organization, in contrast, does

not have to comply with any requirements of public access

and participation, nor indeed with the ethical rules appro-

priate to a constitutional democracy. More importantly, the

United States cannot unilaterally correct or amend ICJ

interpretations with which it disagrees. It only has the

unpalatable alternative of withdrawing from a treaty, as it did

with regard to the Optional Protocol. Congress, by contrast,

can repudiate or revise any agency interpretation of domestic

law with which it disagrees while leaving the underlying

statutory scheme intact and certainly without incurring the

international repercussions of a treaty abrogation.

19

Second, the mandate and composition of an international

tribunal reflects the many and various national interests of the

states that set it up. Although we must assume that

establishment of a tribunal by a treaty to which the United

States is a party reflects the best interests of the United States,

it does not follow that the members of the tribunal have any

ongoing obligation or incentive to act in ways that are

compatible with U.S. goals and values. Rather, members are

chosen by particular states and, even though they are not the

official representatives of their national governments, often

continue to reflect the perspective of those governments.”

Nothing in this Court’s past decisions indicates a willing-

ness to give special deference to the ICJ’s interpretation of

international law. On occasion this Court has regarded ICJ

decisions as evidence of the content of international law in

cases that depend on international law for their resolution.

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

to 1951 ICJ decision as evidence of rule of decision to be

applied in dispute over seabed ownership); United States v.

Louisiana, 470 U.S. 93 (1985) (same). But it also has

demonstrated a willingness to disregard or narrow claims

based on ICJ judgments. See, e.g., Breard v. Green, 523 U.S.

371, 375 (1998) (ICJ decision did not trump procedural rules

of forum state).

The same approach should apply here. The opinion of the

ICJ is one piece of evidence as to the content of the

obligations that signatories to the Vienna Convention bear.

This evidence cannot outweigh, however, the language of the

Convention, the considered views of the Executive, the

consistent practice of the signatory states, or clear indications

* For recent scholarship presenting evidence that the judges on the ICJ

vote in ways that broadly reflect the interests of the states that appoint

them, see Eric A. Posner & Miguel F.P. de Figueiredo, /s the Inter-

national C ourt of Justice Biased? 34 J. LEG. STUD. 599 (2005).

20

of the understanding of the President and the Senate at the

time that the United States approved the treaty.” All of these

factors make clear that when the United States approved the

Vienna Convention, it did not thereby endow persons accused

of crimes in the United States with a new avenue to obtain

judicial review of police actions.

B. Extending the Doctrine of Comity to an

Organization Created by Treaty Would

Discourage the United States from Agreeing to

Establish Such Organizations

The creation of permanent international organizations

based on treaties and other international agreements is one of

the most important developments of the post-World War II

period. The United Nations, the World Bank and the

International Monetary Fund were established at the end of

the War; many other bodies have followed since. Important

recent examples include the World Trade Organization,

established by an international agreement that Congress

endorsed in 1994, and the International Criminal Court,

founded by a treaty that the United States signed in 2001 but,

following strong indications of opposition in the Senate,

President Bush later indicated that the United States would

* To the extent the legislative history of the Optional Protocol is rele-

vant, one should note that a representative of the State Department

explained in testimony before the Senate, regarding the legal effect of the

Optional Protocol, “|iJf problems should arise regarding the interpretation

or application of the convention, such problems would probably be

resolved through diplomatic channels.” Vienna Convention on Consular

Relations, Sen. Exec. Rpt. 91-9, at 19 (1969) (Statement of }. Edward

Lyerly, Deputy Legal Adviser for Administration). Additionally, “parties

to the optional protocol may agree to resort to . . . an arbitral tribunal” or

conciliation. Jd (emphasis added). Nothing in this testimony suggests that

the United States anticipated that accession to the Optional Protocol

would require U.S. courts to open up literally thousands of future criminal

convictions to judicial challenge due to the ICJ’s interpretation of the

Vienna Convention.

21

not approve. Many of these organizations typically exercise

an adjudicative function and purport to provide authoritative

interpretations of the treaties or agreements on which they

are based.

We do not question the value and importance of these

kinds of international organizations, whatever the shortcom-

ings of particular bodies. They permit states to develop

organized, predictable and multilateral responses to global

problems that overflow national boundaries. Their assertions

about the meaning of particular treaties can guide the conduct

of international actors and help to form a consensus. But if a

consequence of setting up such an organization were a

substantial possibility that U.S. courts would regard its

pronouncements as authoritative or preclusive, then our

political branches understandably would be wary of entering

into new commitments, or of continuing adherence to prior

agreements, that establish such adjudicative bodies.

In a few recent instances where the United States by

legislative enactment consented to the delegation of certain

adjudicatory functions to international organizations, Con-

gress expressly provided that private persons could not

invoke any aspect of the international agreement (including

implicitly the interpretations of the presumably authoritative

interpreters) in domestic court. E.g., North American Free

Trade Agreement Implementation Act of 1993, § 102(c)

(codified at 19 U.S.C. § 3312(c)); Uruguay Round Agree-

ments Act of 1994, § 102(c) (codified at 19 U.S.C.

§ 3512(c)); Dominican Republic-Central America-United

States Free Trade Agreement Implementation Act of 2005,

§ 102(c) (codified at 19 U.S.C. § 4012(c)). These-particular

instances indicate a more general unwillingness on the part of

22

Congress to invite domestic courts to exercise free reign in

implementing the decisions of international tribunals.°

A decision by this Court to extend the doctrine of comity to

the ICJ not only would run counter to these clear indications

of the intent of the political branches, but would chill future

efforts to create and empower international tribunals. The

President and Congress, in the case of executive agreements,

or the Senate, in the case of treaties, would not be able to

ensure that establishment of such a body would not have

unwanted ramifications in domestic law. As noted above,

they have been unable to rely on the compliance of lower

courts even in the face of express directions not to treat a

treaty as creating judicially enforceable rights. Without a

clear indication from this Court about the limited effect of

international adjudication on domestic law, the political

branches are likely to hold off from any future commitments

in spite of their clear value.

* In each of these three instances, Congress has provided for a narrowly

tailored legal mechanism for domestic enforcement of the trade agree-

ment. The United States is authorized to bring suit for prospective relief

against state and local law or practice that violates U.S. obligations under

the agreement. No other kind of litigation is permitted. North American

Free Trade Agreement Implementation Act of 1993, § 102(b)(2) (codified

at 19 U.S.C. § 3312(b)(2)); Uruguay Round Agreements Act of 1994,

§ 102(b)(2) (codified at 19 U.S.C. § 3512(b)(2)); Dominican Republic-

Central America-United States Free Trade Agreement Implementation

Act of 2005, § 102(b)(2) (codified at 19 U.S.C. § 4012(b)(2)). ’

23

C. Other Countries Do Not Ordinarily Interpret

Their Treaty Commitments as Delegating to

International Organizations the Authority to

Render Judgments in Particular Disputes To

Be Enforced by Their Domestic Courts in the

Absence of an Express Provision Stipulating

Such an Effect

Petitioners argue that this Court should defer to the ICJ’s

interpretation of the Vienna Convention so as to promote

uniform interpretation of that treaty. To the contrary, were

this Court to regard the jurisprudence of the ICJ as obligating

the judiciary of the United States to enforce the Vienna

Convention at the behest of private persons, it would depart

from, rather than reinforce, widely accepted international

understandings about the relationship between international

obligations and domestic law.

Other countries do not normally interpret a treaty acceding

to the jurisdiction of an international tribunal as imposing on

domestic courts the responsibility for enforcing the orders of

such tribunals. The only significant exception to this principle

is the case of the judicial bodies of the European Community.

But the European Community constitutes a sui generis at-

tempt to create an extensive legal regime embracing its

member states, not a template for general international law.

And even the European Court of Justice, the principal judicial

body of the European Community, has rejected the possibility

that it could act as an enforcing agent for any other inter-

national tribunal.

Considering first the International Court of Justice, our

research has turned up no instance where a nation has

embraced the principle of direct enforcement of ICJ orders.

The universal practice is to regard ICJ decisions as important

evidence of the content of international law in cases where

such law is relevant to a matter otherwise before a national

court, but not as independent grounds for a national court's

24

authority. Nations understand that their legislatures and

governments, not their judiciaries, have the primary respons-

ibility for effecting compliance with ICJ orders. We are

unaware of any instance, and petitioner and the various amici

in support of petitioner cite to no instance, where another

state through a domestic court decision has mandated the

direct enforcement of an ICJ order. For 2 comprehensive

review of foreign judicial decisions rejecting direct enforce-

ment of ICJ decisions, see A. Mark Weisburd, /nternational

Courts and American Courts,21 Mich. J. INTL L. » 877, 886-

87 (2000).

European practice regarding the European Court of Human

Rights also is instructive. This international tribunal oversees

compliance with the European Convention for the Protection

of Human Rights and Fundamental Freedoms, Nov. 4, 1950,

213 U.N.T.S. 221, a treaty with 45 parties that protects basic

human rights in the covered countries. Since 1998, individ-

uals have had the right to bring a case directly to the

European Court of Human Rights. But enforcement of its

judgments, including orders for compensation, depends

entirely on local law, not the Convention itself. In the United

Kingdom, for example, it is the Human Rights Act 1998, ch.

” Amici intimate that Belgium has given direct effect to an ICJ decision

involving the immunity from arrest of government officials. Brief of

International Court of Justice Experts as Amici Curiae in Support of

Petitioners at 26 n.46. But the Belgium courts grounded their decisions on

their interpretation of domestic law. See Constanze Schulte, COMPLIANCE

WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE 270 (2004):

Alain Winants, The Yerodia Ruling of the International Court of Justice

and the 1993/1999 Belgian Law on Universal Jurisdiction, 16 LEIDEN J.

INT'L L. 491, 505-06 (2003); Jan Wouters, The Judgement of the

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

Remarks, 16 LEIDEN J. INT'L L. 253, 266 (2003) (Belgian Supreme Court

decision rested on Belgian statute). Amici wishes to substitute speculation

by scholars about the motivation of these decisions for what the courts

actually said.

25

42 (Eng.), that provides the legal basis for domestic

enforcement of the Convention. For a recent discussion of the

relationship between the Convention and British law, see A v.

Secretary of State, {2005} 2 A.C. 68, § 42 (H.L. 2004). Even

European nations whose constitutions subordinate domestic

legislation to international law, such as Germany, Italy, and

the Netherlands, do not give direct effect to the judgments of

the European Court of Human Rights. For a thorough

discussion of practice in these countries, see THE EXECUTION

OF STRASBOURG AND GERMAN HUMAN RIGHTS DECISIONS

IN THE NATIONAL LEGAL ORDER (Tom Barkhuysen et al.

eds. 1999).

_ The European Union (EU) and the European Community

(EC), the EU’s principal institutional structure, rest on treaties

which, in the case of the European Community, create

judicial bodies. The parties-to these treaties do regard the

decisions of the judiciary of the European Community,

namely the European Court of Justice (ECJ) and the ECJ’s

Court of First Instance, as generally creating judicially

enforceable interests in their domestic legal order. See, e.g.,

Regina v. Secretary of State for Transport ex parte

Factortame Ltd., [1991] | All E.R. 70 (H.L.). But cf. Brunner

v. The European Union Treaty, [1994] 1 C.M.L.R. 57

(German Federal Constitutional Court) (reserving right to

review decisions of ECJ for compliance with German

constitutional order). This outcome, however, results not from

an abstract sense of obligation to comply with the orders of

international tribunals, but rather because of explicit

provisions in the treaty constituting the EC. Consolidated

Version of the Treaty Establishing the European Community,

Dec. 24, 2002, O.J. (C 325) 33, Articles 228, 244, 256. These

articles expressly impose on domestic courts the obligation to

carry out the orders of the ECJ.

The direct enforcement of ECJ decisions by the member

States does not represent a new approach generally to

26

domestic incorporation of international law. The EC involves

a distinctive, perhaps unique, level of extensive and intensive

cooperation among the members, who in a sense have formed

a new confederation of member states. Direct enforcement of

the ECJ’s decisions facilitates that cooperation, much like the

decisions of this Court promote the smooth workings of our

federal union. Rather than serving as a new model of

international adjudication, the ECJ operates in relation to the

legal system of the member states much as this Court does

with respect to the legal systems of the several States.

The ECI’s approach to international law (the foundational

treaties of the EU and the EC aside) closely resembles the

traditional perspective of this Court. Like this Court, the ECJ

recognizes that the decisions of international tribunals are

informative, but that treaty provisions obligating the EC to

submit disputes to a tribunal do not mean that the decisions of

those tribunals become part of EC law. In particular, the ECJ

considers the decisions of the ICJ as evidence of the content

of international law in cases where it must look to inter-

national law for a rule of decision but retains independent

competence to determine whether the international rule at

issue has become part of the body of EC law. See, e.g., A.

Racke GmbH & Co. v. Hauptzollamt Mainz (Case C-162/96),

1998 E.C.R.1-3655; Anklagemyndigheden v. Poulsen (Case

C-286/90), 1992 E.C.R. 1-6019. Cf. Rosalyn Higgins, The

ICJ, the ECJ, and the Integrity of International Law, 52 INT’L

& Comp. L.Q. | (2003) (explaining relationship between ECJ

and ICJ).

As we discussed above, no signatory to the Vienna

Convention has regarded that treaty as an exception to the

general pattern of no private judicial enforcement of treaty

obligations. This Court should uphold the Executive's

consistent understanding of U.S. obligations under that treaty

and refuse to imply a private right to judicial enforcement.

27

CONCLUSION

The Vienna Convention does not give private persons the

power to challenge in court alleged violations of its pro

visions. A decision to the contrary would have a serious

negative impact on the willingness of the political branches to

enter into new treaties and create new _ international

organizations with adjudicative functions. The course urged

on this Court by petitioners, far from bringing U.S. practice

into conformity with that of other nations, would give

international law and the decisions of international tribunals a

role in the U.S. legal system that other nations do not allow

their courts to undertake. Accordingly, the judgments of the

Supreme Court of Oregon and the Supreme Court of Virginia

should be affirmed.

Respectfuily submitted,

SAMUEL ESTREICHER PAUL B. STEPHAN

40 Washington Square So. Counsel of Record

New York, NY 10012 580 Massie Rd.

(212) 998-6226 Charlottesville, VA 22903

EUGENE THEROUX (434) 924-7038

BAKER & MCKENZIE LLP Counsel for Amici Curiae

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 452-7012

January 31, 2006

la

APPENDIX—LIST OF AMICI

Samuel Estreicher is the Charles L. Denison Professor of

Law and Co-Director, Institute for Judicial Information, New

York University School of Law. He has been on the faculty

of New York University since 1978.

John C. Harrison is the D. Lurton Massie, Jr. Professor of

Law and the Horace W. Goldsmith Research Professor at the

University of Virginia School of Law. He has been on the

faculty of the University of Virginia since 1993 and served in

the Justice Department from 1983 to 1993, from 1990 to

1993 as Deputy Assistant Attorney General, Office of Legal

Counsel.

Julian G. Ku is Associate Professor of Law, Hofstra

University School of Law. He has been on the faculty of

Hofstra since 2002.

John O. McGinnis is Professor of Law, Northwestern

University School of Law. He has been on the faculty of

Northwestern University since 2002, from 1991 to 2002 on

the faculty of Benjamin N. Cardozo School of Law, Yeshiva

University, and from 1985 to 1991, was an attorney-advisor,

then Deputy Assistant Attorney General, Office of Legal

Counsel.

Mark L. Movsesian is Professor of Law, Hofstra

University School of Law. He has been on the Hofstra

faculty since 1993. From 1989 to 1992, he was an attorney-

advisor, Office of Legal Counsel.

Paul B. Stephan is the Lewis F. Powell, Jr. Professor of

Law and the Hunton & Williams Research Professor at the

University of Virginia School of Law. He has been on the

faculty of the University of Virginia since 1979.

Ruth Wedgwood is the Edward B. Burling Professor of

International Law and Diplomacy, Paul H. Nitze School of

2a

Advanced International Studies, Johns Hopkins University

and has been a member of the Secretary of State's Advisory

Committee on International Law since 1993. She has been on

the faculty of the Paul H. Nitze School since 2001, on the

faculty of Yale Law School from 1986 to 2002, and was

Assistant U.S. Attorney, Southern District of New York,

from 1980-86.

A. Mark Weisburd is Professor of Law, University of

North Carolina School of Law. He has been on the faculty of

the University of North Carolina School of Law since 1981.

Ann Woolhandler is the William Minor Lile Professor of

Law and the Class of 1948 Professor in Scholarly Research

in Law at the University of Virginia School of Law. She has

been on the faculty of the University of Virginia since 2002

and from 1990 to 2002 was on the faculty of Tulane

University School of Law.

Ernest A. Young is the Judge Benjamin H. Powell

Professor at the University of Texas School of Law. He has

been on the faculty of the University of Texas since 1999,

Nos. o4 Sees & O55

IN THE

Suprene Court of the United

Supi.cie Court, U.S.

FILED

airs

DEC 23 2005

MOISES SANCHEZ-LLAMAS, OFFICS OF THE CLERK

Petition . tt

Vv.

:

-

OREGON, 27

Respondent.

MARIO A. BUSTILLO,

Petitioner,

v.

GENE M. JOHNSON, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent.

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF OREGON AND THE

SUPREME COURT OF VIRGINIA

BRIEF FOR AMICI CURIAE REPUBLIC OF HONDURAS

AND OTHER FOREIGN SOVEREIGNS

IN SUPPORT OF PETITIONERS

ASIM BHANSALI PAUL R.Q. WOLFSON

KEKER & VAN NEST LLP Counsel of Record

710 Sansome Street ANNE K. SMALL

San Francisco, CA 94111 JON CONNOLLY

(415) 391-4500 WILMER CUTLER PICKERING

HALE AND DORR LLP

Counsel for Amici Curiae 2445 M Street, N.W.

Peru and Uruguay Washington, DC 20037

(202) 663-6000

Counsel for Amici Curiae

Honduras, Argentina,

Bolivia, Brazil, Chile,

Colomhia, El Salvador,

and Guatemala

TABLE OF CONTENTS

Page

TATE TE OW AUT TIRI TT aacecceccccxeecsneneccneeersnsessssettsnenensnnsans ii

INTEREST OF AMICI CURIAE .ucccccsssscssssssssssvessssesessesssseeee 1

SUMMARY OF ARGUMENT .......ccccssscccssssosccssscssssesssecenseesees 3

EIR ee Co oka a a Se 5

A. Article 36 Is A Critical Part Of The Tradi-

tional Consular Function Of Protecting

The Interests Of A Sending State’s Na-

Nee ikiceeectninsiiiesshiatiniriititnnnhahiieaaiaisiitaahtpantaiialineremsais 5

B.. Reciprocity, Comity, And Uniform Treaty

Interpretation Principles Counsel In Fa-

vor Of Adhering To The ICJ’s Interpreta-

tion Of The Vienna Convention .................cccecccecsosoees 9

C. Article 36 Of The Vienna Convention Cre-

ates Individually Enforceable Rights...................+ 15

D. The Rights Afforded Under Article 36 Are

Not Subject To State Procedural Default

RECESS tied aes COSTS D ANE Ey OO OR 17

E. Breard Should Not Be Followed In These

REE RE a eee ce IC Pes OS 22

F. The Importance Of The Right To Consular

Notification Is Convincingly Demon-

ee te I ianciniinciicnscciaencisieininisetnicntnaiis 24

aU Pisecncsrinnbesnseiecnesshiniuicenisanietuesiepiannieatuanatedsintiateiti 26

TABLE OF AUTHORITIES

CASES

, Page(s)

Air France v. Saks, 470 U.S. 392 (1985)..........ccccssssesseeeseeees 14

American Insurance Ass’n v. Garamendi, 539 U.S.

TTI seetintresstannepitnintenameenpinnaiiennbeneienmminitenentabmantiae 19

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

I cccunsntnncsnntanestanannanntennmneniianneninmamenmmncnnmnneies 19

Bradshaw v. Stumpf, 125 S. Ct. 2398 (1995) ........evssserserenseees 7

Breard v. Greene, 523 U.S. 371 (1998) (per curiam}.....passim

Dickerson v. United States, 530 U.S. 428 (2000) ................0+ 25

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155

CI ccerrcecerenicctennteressnstnidynitnemnennaananneiamatnenmemanninen 14

First National City Bank v. Banco Nacional de

Cuba, 406 U.S. 759 (1972) ..........0000 ecinaianemmemeinenneeeniies 19

Halbert v. Michigan, 125 S. Ct. 2582 (2005).........cscsessesssesenees 8

Hilton v. Guyot, 159 U.S. 113 (1895).....ccsscssscssssssseseerenseseeees 10

Hohn v. United States, 524 U.S. 236 (1998) ..........cccccseseseeeee 24

Massaro v. United States, 538 U.S. 500 (2003)...........00 21, 22

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

SEINE cccenpreseceneressstnccestnnsemanseniameasmneninneguieinstpemanmnemasnsennaints 9

Olympic Airways v. Husain, 540 U.S. 644 (2004)......cecesee 14

Patterson v. Illinois, 487 U.S. 285 (1988).......cccsseessseseeseseees 21

Polk County v. Dodson, 454 U.S. 312 (1981) ...........: peisiidsneedenn 7

Ramirez v. State, 619 S.E.2d 668 (Ga. 2005) ..........ccccecsereeeeees 16

Société Nationale Industrielle Aerospatiale v.

United States District Court, 482 U.S. 522

TT invnncssicninicenscitinsatieinecssineatseneaiiaaninteniaidaneninanctmnanusante 12, 13

Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App.

scented ccniscecenasninianiiatisecacpiniastsinisiainnmmintninmunainaininnieniin 16

State v. Byron, 683 N.W.2d 317 (Minn. Ct. App.

TIE cciscnscnssenantaistisentenniandeseninmmnaiistnaianesiananenmmnepiteninets 16

Taylor v. Illinois, 484 U.S. 400 (1988) ........cceccseseereeeenees 20, 21

United States v. Arjona, 120 U.S. 479 (1887)......ccsseerseeeees 10

United States v. Beckford, 2000 U.S. App. LEXIS

6752 (4th Cir. 2000) (unpublished)................scessesereerenees 16

United States v. Cazares, 60 Fed. Appx. 223 (10th

Cir. 2003) (unpublished) .............ccscsessssesseenees sitet 16

Wee

1

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Contreras-Cortez, 41 Fed. Appx.

252 (10th Cir. 2002) (unpublished) .............csscscessesereeessees 16

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

EE SESS ee ee ae a 16

United States v. Felix-Felix, 275 F.3d 627 (7th Cir.

ITT ictnsnicenienitininasnienniondtneniippeintaainadianituainmeditemieeerisinmmnnnnen 16

United States v. Gamez, 301 F.3d 1138 (9th Cir.

See eastenessnvsnesensnnsinnsennnenenisentusmpdbensinmmetmmpmmeenene 16

United States v. Gonzales, 339 F.3d 725 (8th Cir.

SIT cai nsennicneaitietetatatainestacancannieasmnbinttaniintilecieeimmanieberdiueteiamin 16

United States v. Guerrero, 45 Fed. Appx. 265 (4th

| _________ EESRTE neeE 16

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

SEE TEI icici sicetericecincnenienntcennsintitaesiepininaaiectaneemasen 16

United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002) ............. 16

United States v. Percheman, 32 U.S. (7 Pet.) 51

SuraiTiiichaiencacaeseuniaitaetaiitiienatebnatinssennitnianegediceeaienteees 23

United States v. Pink, 315 U.S. 208 (1942) .0.......cceeccseecesevees 19

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) ........cccccceseseeserceees 19

Zicherman v. Korean Air Lines Co., 516 U.S. 217

a cinenteiciesctiisninnaianiatiisianintaiiintitaiai nccnendiniinaiabteniatitiiiinnts 10

Zschernig v. Miller, 389 U.S. 429 (1968) .........ccccsseceeseeesessesees 19

CONSTITUTIONAL AND STATUTORY PROVISIONS

I 3

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 00... .eceseeseeee 23

INTERNATIONAL MATERIALS

Case Concerning Avena and Other Mexican

Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar.

Iii eeneeienctaiineiainniestcinneniasinidliagnialipsaindamnatieneinbiannasainns 3, 9, 15, 18

Case Concerning United States Diplomatic & Con-

sular Staff in Tehran (U.S. v. Iran), 1980 L.CJ.

Ir ETnIET TalFUi iasisacicitenbetsthensineestteinicntiniaiiancenaneshiedinenmentitnmseiaes 5

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Counter-Memorial Of The United States of Amer-

- ica, Case Concerning Avena and Other Mexi-

can Nationals (Mex. v. U.S.) (Nov. 3, 2008) ...........c000000. )

LaGrand Case (F.R.G. v. U.S.), 2001 L.CJ. 466

CUI Tee nscoceenemeoedinarintceetnansianinnnineniateiianieicianiinlliasiiinsiasiamaiin 3

Memorial of the United States, Case Concerning

United States Diplomatic and Consular Staff

in Tehran, (U.S. v. Iran), 1980 1.C.J. Pleadings

BS GE, GED cecsseasecestnvenesncecossneeisinasniaiiniiaiiaiiaenitaiaitassiaiail 11

Optional Protocol Concerning the Compulsory Set-

tlement of Disputes, Apr. 24, 1963, 21 U.S.T.

§ ti. & ae 1, 2, 13

Vienna Convention on Consular Relations, Apr. 24,

1963, 21 U.S.T. 77, 596 U.N.TS. 261............. 1, 5, 6, 15, 23

OTHER AUTHORITIES

Aceves, William J., The Vienna Convention on

Consular Relations: A Study of Rights,

Wrongs, and Remedies, 31 Vand. J. Transnat’l

Damaska, Mirjan, Evidentiary Barriers to Convic-

tion and Two Models of Criminal Procedure: A

Comparative Study, 121 U. Pa. L. Rev. 506

CTT scccrevsnnnnnctetsintensesnntanneesisintpnaseinitiaaassiisiaiaiasdmemadmaaiaiaia 7

The Federalist No. 80 (J. Cooke ed. 1961) (A. Ham-

Tate. _..cccseccenetenncanasinettiincapeiniastansmameatteietimaiddidiieaeiadaaes 19

7 Foreign Affairs Manual (2004), available at

http://foia.state.gov/REGS/fams.asp?level=2&i

GD ccctacccemmeentnennnnnseenainaaiitles 8,9, 12

Lee, Luke, Consular Law and Practice (2d ed.

TIED sccccsscctencticennstedtaiaaiaanaptiantaniediassaiiimaiaiebinieiieaadl 7,8, 11, 12

Lerner, Renée Lettow, The Intersection of Two

Systems: An American on Trial For an

American Murder in the French Cour D’As-

Fe A 7

v

TABLE OF AUTHORITIES—Continued

McGinley, Gerald P., Ordering a Savage Society: A

Study of International Disputes and a Pro-

posal for Achieving Their Peaceful Resolution,

25 Harv. Int’! L.J. 43 (1984)... =

Posner, Eric A. & Yoo, John C., Judicial Independ-

ence in International Tribunals, 93 Cal. L.

ET

Page(s)

Table FBP-1, Profile of Selected Demographic and

Social Characteristics: 2000, available at http://

www.census.gov/population/cen2000/stp- 159 (last

visited Dec. 21, 2005)............

US. Dep’t of Justice, Bureau of Justice Statistics,

Census of State and Federal Correctional Fa-

cilities, 2000, available at http//www.ojp.usdoj.gov/

bjs/abstract/csfcf00.htm ...

U.S. Dep’t of State, Consular Notification and Ac-

cess (2003), available at http://travel.state.gov/

Fe a cncecssesccentscnscensenncctncnsnnesssesenescesnees

Amici curiae Republic of Honduras, Argentine Repub-

lic, Republic of Bolivia, Federative Republic of Brazil, Re-

public of Chile, Republic of Colombia, Republic of El Salva-

dor, Republic of Guatemala, Republic of Peru, and Oriental

Republic of Uruguay respectfully submit this brief in sup-

port of the petitioners in these cases.'

INTEREST OF AMICI CURIAE

Each amicus, like the United States, has adopted the

Vienna Convention on Consular Relations, Apr. 24, 1963, 21

U.S.T. 77, 596 U.N.T.S. 261 (“Vienna Convention” or “Con-

vention”). In addition, amici Argentina, Chile, Colombia,

Peru, and Uruguay are signatories to the Vienna Conven-

tion’s Optional Protocol Concerning the Compulsory Settle-

ment of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S.

488 (“Optional Protocol”). The United States was, until ear-

lier this year, also a signatory to the Optional Protocol.

Article 36(1)(b) of the Convention provides that a signa-

tory state that detains a foreign national must, upon request

of the detainee, promptly inform the foreign national’s con-

sulate of the detention, and also must promptly advise the

detainee of “his rights” to consular notification under the

Convention. Article 36(2) of the Convention provides that

signatory states must ensure that their laws and regulations

give “full effect” to the protections afforded by Article 36(1)

of the Convention.

These protections are of critical importance to amici.

Hundreds of thousands of amici’s citizens reside in the

United States,’ and many more visit every year. Article 36

ensures that those foreign nationals may receive the benefit

' No counsel for a party authored this brief in whole or in part. No

person or entity other than amici or their counsel has made a monetary

contribution to the preparation or submission of this brief. Counsel for all

parties consented in writing to the filing of this brief.

? See, e.g., Table FBP-1, Profile of Selected Demographic and Social

Characteristics: 2000, available at http://www.census.gov/population/

cen2000/stp-159 (last visited Dec. 21, 2005).

2

of consular assistance when they are confronted with crimi-

nal proceedings in surroundings that may be unfamiliar to

them. Unless a detained individual receives prompt notifica-

tion that he may seek consular assistance, that benefit is of-

ten lost and his ability to mount an effective defense may

well be hindered.

The Optional Protocol is also of great importance to the

amici who are signatories to that agreement. The Optional

Protocol provides that “(djisputes arising out of the inter-

pretation or application of the Convention shall lie within the

compulsory jurisdiction of the International Court of Jus-

tice.” Optional Protocol art. 1, 21 U.S.T. at 325. The Op-

tional Protocol thus provides a means within the established

framework of international law whereby parties to the Con-

vention may resolve their differences over the interpreta-

tion and application of the Convention, with the understand-

ing that, once the International Court of Justice (“ICJ”) ren-

ders a decision, those parties will abide by that decision in

the future. Moreover, the [CJ was given jurisdiction not

only to decide whether any country had violated the Con-

vention, but also to resolve any dispute over the interpreta-

tion of the Convention—indicating that parties that agreed

to submit disputes to the ICJ (including, previously, the

United States) would thenceforth be bound by that court’s

“interpretation” of the treaty.

The cases before the Court, both of which involve con-

ceded violations of the Vienna Convention by state officials,

raise the question of whether and how the United States will

comply with the Vienna Convention, and in particular

whether and how the United States will provide an effective

remedy for amici’s citizens who have been prejudiced by

violations of the Convention. More broadly, these cases un-

derscore the importance of treaty obligations to amici in

their relations with the United States. Compliance with

treaty obligations reinforces the principle of reciprocity that

is the bedrock of international relations. When amici enter

into treaties with the United States, they rely on the inter-

national law principle that treaties will be followed—the

3

cardinal rule of pacta sunt servanda. And although amici

are well aware of the federal system of government in the

United States, they necessarily depend on the domestic law

principle that ensures that treaties will be honored, at all

levels of government in the United States—the U.S. Consti-

tution’s Supremacy Clause, which provides that “all Treaties

made ... under the authority of the United States, shall be

Supreme Law of the land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U.S.

Const. art. VI, § 2.

SUMMARY OF ARGUMENT

Consular relations by nature often involve protection of

the interests of individuals. Thus, the Vienna Convention,

which codified the law of consular relations, offers significant

protections for individuals traveling and living abroad. Con-

sular assistance helps an individual overcome the substantial

obstacles he may face in understanding and navigating an

unfamiliar criminal justice system. The United States has

continuously demonstrated its support for these protec-

tions—at the Vienna Convention itself and in cases involving

Vienna Convention violations relating to U.S. citizens.

The ICJ has issued several decisions interpreting the

Vienna Convention. In particular, it has held that at least in

criminal cases involving “severe penalties,” judicial remedies

must be available to the individual whose rights have been

violated. Specifically, the ICJ has ruled that the Vienna

Convention creates individually enforceable rights and that

judicial remedies for violations of these rights cannot be

barred by state procedural default rules. See Case Concern-

ing Avena and Other Mexican Nationals (Mex. v. U.S.),

2004 I.C.J. 128 (Mar. 21); see also LaGrand Case (F.R.G. v.

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

Whether or not the ICJ’s Avena decision on the inter-

pretation of the Convention binds this Court, principles of

reciprocity, comity, and uniformity of treaty interpretation

all favor following that decision. The Vienna Convention,

4

like other-treaties, is built on the assumption that all nations

will comply. Its drafters anticipated that parties would ac-

cord great weight to the [CJ’s interpretations and applica-

tions of the Convention. This Court’s cases concerning

treaty interpretation also favor adhering to judicial con-

structions of treaties rendered by international courts, in

recognition of the principle that parties to multilateral trea-

ties desire uniform interpretations of those treaties.

The plain language of the Vienna Convention supports

the ICJ’s determination that the treaty does create indi-

vidually enforceable rights. Logic dictates the same result.

Despite federal efforts to ensure compliance, violations by

state officials persist. Individual judicial remedies for such

violations are therefore necessary if these protections are to

have their intended effect.

The same principles of reciprocity, comity, and uniform-

ity also support a holding by this Court that state procedural

default rules will not bar claims under the Vienna Conven-

tion. The IGJ has so concluded and its order is supported by

the nature of the right itself. The Vienna Convention re-

quires states to inform detained individuals of their rights; in

the case of a violation, the individual will not be informed of

his or her rights and cannot be expected to raise such claims

at trial. Moreover, the significance of the violation may be-

come clear only after the trial is over.

The Court’s opinion accompanying the denial of certio-

rari in Breard v. Greene, 523 U.S. 371 (1998) (per curiam),

which addressed the question of procedural default, should

not be followed in these cases. Breard did not address the

questions of individually enforceable rights and suppression

that are also before the Court. Also, the Breard opinion was

issued before the ICJ had interpreted the Vienna Conven-

tion. It has now done so, in two adjudications to which the

United States was a party. The ICJ’s determination coun-

sels in favor of the renewed assessment of the questions dis-

cussed in Breard. Moreover, Breard was not rendered after

full briefing and argument on the merits, but was issued in

exigent circumstances immediately before Breard’s execu-

5

tion, and, moreover, the Court’s statements about proce-

dural default were not essential to the opinion.

These cases aptly demonstrate the enormous value of

the rights secured by Article 36. In Bustillo, the Vienna

Convention violation prevented Bustillo from securing sub-

stantial exculpatory evidence available to the consulate. In

Sanchez-Llamas, the Vienna Convention violation denied

Sanchez-Llamas the opportunity to have consular assistance

in understanding his Miranda rights; his apparent lack of

comprehension led to a confession of questionable reliability.

ARGUMENT

A. Article 36 Is A Critical Part Of The Traditional

- Consular Function Of Protecting The Interests Of

A Sending State’s Nationals

An important focus of the consular function is and al-

ways has been the protection of the interests of a sending

state’s nationals who reside in or are visiting a receiving

state. Thus, in adopting the Vienna Convention, which codi-

fied the principles underlying consular relations, the parties

recognized the role of consular relations “in promoting the

development of friendly relations among nations, and ensur-

ing the protection and assistance for aliens resident in the

territories of other states.” Case Concerning United States

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

1980 I.C.J. 3, 40 (May 24) (“Diplomatic and Consular

Staff’).

Article 5 of the Vienna Convention lists various consu-

lar functions, many of which advance and protect the inter-

ests of the sending state’s nationals. Most pertinent to these

cases, Article 5(e) states that a central consular function is

“helping and assisting nationals, both individuals and bodies

corporate, of the sending states.” 21 U.S.T. at 83. Article

36 facilitates this “help[]” and “assist[ance]” by prohibiting

receiving states from impeding communications between

consular officials and nationals of tne sending state. Specifi-

cally, Article 36(1)(a) provides that “consular officers shall

be free to communicate with nationals of the sending State

and to have access to them,” and that “{njationals of the

6

sending State shall have the same freedom with respect to

communication with and access to consular officers of the

sending State.” /d. at 101. Other articles of the Vienna

Convention similarly address the interests of individual na-

tionals of sending states. See, e.g., Article 5(d), 21 U.S.T. at

83 (regarding the issuance of travel documents to individu-

als); Article 5(h), 21 U.S.T. at 83, (respecting the safeguard-

ing of the interests of minors); Article 37, 21 U.S.T. at 102

(concerning assistance in the case of “deaths, guardianship

or trusteeship, wrecks and air accidents”).

The parties to the Convention anticipated that nationals

of sending states would be particularly in need of consular

assistance when they were detained on charges in a receiv-

ing state. To ensure that their nationals would be able to

obtain the benefit of consular assistance in such circum-

stances, the Convention requires detaining authorities spe-

cifically and promptly to inform detained foreign nationals of

their right to contact their consulate for assistance:

[1}f he so requests, the competent authorities of the

receiving State shall, without delay, inform the con-

sular post of the sending State if, within its consular

district, a national of that State is arrested or com-

mitted to prison or to custody pending trial or is de-

tainec in any other manner. Any communication

addressed to the consular post by the person ar-

rested, in prison, custody or detention shall also be

forwarded by the said authorities without delay.

The said authorities shall inform the person con-

cerned without delay of his rights under this sub-

paragraph.

Art. 36(1)(b), 21 U.S.T, at 101. Article 36 further provides

that consular officers have the right to visit the national in

prison “to converse and correspond with him, and to arrange

for his legal representation.” Jd. Furthermore, although

these rights “shall be exercised in conformity with the laws

and regulations of the receiving State,” all states’ laws and

regulations must give “full effect” to the purposes for which

the rights at issue were created. /d.