Vázquez on Sanchez-Llamas and Bustillo

We have invited Professor Carlos Vázquez at Georgetown Law Center to summarize his initial impressions of today’s decision in Sanchez-Llamas and Bustillo. Here is his summary:

In these two cases, state prisoners relied on the Vienna Convention on Consular Relations in challenging their criminal convictions. State courts in numerous cases had denied relief on the ground that the treaty, although self-executing, does not confer judicially enforceable rights. The states and the US government had argued in today’s cases that, treaties, being contracts between states, are presumed not to create rights enforceable by individuals in domestic courts. The Chief Justice’s opinion for the Court today is noteworthy in that it declines to endorse that argument. Its refusal to endorse the argument is particularly remarkable because the Chief Justice had endorsed that position on the D.C. Circuit in the Hamdan v. Rumsfeld case (which will be decided tomorrow by the Court without the Chief Justice’s participation) and expressed that view again during the oral argument of these cases. Four Justices clearly rejected the argument there is a presumption that treaties do not create judicially enforceable rights, noting that “no such presumption exists.” Because the majority did not express an opinion on that question, the issue remains open.

The majority denied relief in Sanchez Llamas’ case on the ground that the remedy he sought – suppression of evidence obtained before the notice required by the VCCR was given – was not required by the treaty. This holding was not surprising, given that the ICJ’s declined to endorse that remedy and that, as Justice Ginsburg noted in her concurring opinion, the VCCR does not require state officials to suspend an interrogation pending notification of the consul. What is more noteworthy is that the Court recognized that state courts are required to provide remedies that are required by treaties “either explicitly or implicity.” The apparent recognition that treaty remedies can be “implicit” in a treaty appears to be a rejection of the argument – based on recent implied right of action cases – that only express remedies are available for treaty violations.

The majority denied relief to Bustillo on procedural default grounds. In doing so, it explicitly declined to follow the ICJ’s interpretation of the VCCR as precluding reliance on procedural default rules where the procedural default is traceable to the government’s failure to provide the notification required by the VCCR. Even though Bustillo had not argued that the ICJ’s decision was binding on the U.S. courts, the Court went out of its way to reject this argument. It relied in part on Article III, quoting Marbury v. Madison for the proposition that “judicial power includes the duty ‘to say what the law is.’” It also reasoned that, because ICJ judgments are binding only “between the parties and in respect of that particular case,” the ICJ’s interpretations of treaties are not binding precedent even as to the ICJ itself” (emphasis in original.), and it cited Executive Branch’s view that the ICJ’s treaty interpretation is not binding; and relied on the fact that the United States has withdrawn from the Optional Protocol (which confers jurisdiction on the ICJ in VCCR cases). In cases currently pending in state courts, prisoners who were covered by the ICJ’s judgment in Avena have argued that the ICJ’s judgment is binding as to them. Some but not all of the reasons given by the Court for holding that the ICJ’s interpretation of the VCCR was not binding in the Sanchez Llamas and Bustillo cases would appear to apply equally to persons covered by the ICJ judgment. Of course, these petitioners also rely on President Bush’s memorandum instructing the state courts to comply with the ICJ’s judgment (which the majority today mentioned without comment).

As it did in Breard v. Greene, the Court said today that the ICJ’s interpretation of the VCCR deserves “respectful consideration.” But the majority concluded that the ICJ erred in interpreting the VCCR by failing to appreciate the importance of procedural default rules in an adversarial system such as ours. In particular, the Court rejected the argument that procedural default rules are inconsistent with the right to consular notification because foreign nationals cannot be expected to raise at trial a right that the VCCR assumes they do not know about. The Court noted that procedural default rules apply to other notification rights, such as those under Miranda. If a constitutional right to notification can be forfeited through procedural default, the Court reasoned, then so can a treaty-based right. Thus, despite the intervening interpretations of the ICJ to the contrary, the Court today reached the same decision that it reached in Breard about the compatibility of procedural default rules with the VCCR’s right to consular notification. (The Court does at least appear to have regarded the intervening ICJ decisions as a sufficient reason to consider this issue de novo, however. This is suggested by the way it phrased its conclusion: “We therefore conclude, as we did in Breard, that claims under Article 36 may be subjected to the same procedural default rules that apply generally to other federal-law claims.” I note, however, that the majority elsewhere said, more ambiguously, that “we conclude that [the ICJ’s interpretation of the VCCR] does not compel us to reconsider our understanding of the Convention in Breard.”)

I have elsewhere argued that the analogy to Miranda is inapt and that, purely as a matter of U.S. law, the failure to raise a VCCR claim at trial should not result in forfeiture of the claim if the failure was the result of the failure of the state (and the defendant’s lawyer) to inform the defendant of his right. See here. (A longer version, with cites, is forthcoming in the Georgetown Journal of International Law.) I also argued that, if procedural default rules do apply, then the lawyer’s failure to inform his client of his VCCR rights should be deemed a violation of his duty to provide effective assistance of counsel and that the resulting Sixth Amendment violation (if prejudice results) is sufficient “cause” to excuse the procedural default. The latter argument is unaffected by anything in today’s decisions. Counsel for foreign nationals should thus routinely inquire whether the notification required by the VCCR was given, and, if it was not, should consult with their client about whether to raise a VCCR claim at or before trial. If they decide not to, they will have no basis for escaping state procedural default rules. If counsel does not raise the issue with his client and prejudice results, then the client will have a strong basis for a Sixth Amendment claim and should be able to obtain relief, assuming the courts hold that the VCCR confers judicially enforceable rights.

The majority concluded its opinion by noting that “it is no slight to the Convention to deny petitioners’ claims under the same principles we would apply to an Act of Congress, or to the Constitution itself.” The Court’s opinion today is thus consistent with the proposition that self-executing treaties “are to be regarded in courts of justice as equivalent to an act of the legislature” (see Foster v. Nielson) and thus that a court should “resor[t] to [such a] treaty for a rule of decision for the case before it as it would to a statute” (see Head Money Cases). In other words, a self-executing treaty is judicially enforceable in the same circumstances as a federal statute of like content. If the Court follows this approach in deciding whether the rights conferred by the VCCR are judicially enforceable, it will surely reach an affirmative conclusion, as the four Justices who reached that issue today did.