29 Mar The Supreme Court’s Other International Case – Treaty Rights and Remedies
Although I’m obviously interested in the Court’s argument today in Sanchez-Llamas/Bustillo (see related posts below) considering the private rights created by the Vienna Convention, I don’t have any thing to add to this very useful account of oral argument by Lyle Denniston at SCOTUSBlog. It sounds like the Court may avoid the self-executing treaty puzzle and impose a duty on lawyers to inform their clients of their treaty rights. This seems like a promising compromise, which would give the foreign defendants a right to challenge their lawyers’ effectiveness of counsel if they weren’t informed of their treaty rights.
In fact, it is possible that the Court could rule on both Hamdan and Sanchez-Llamas WITHOUT resolving whether the treaties in question are self-executing or create a private right of action. This seems somewhat unlikely, but not impossible.
Blog Round-Up – Thursday, March 30th
Here is Sentencing Law & Policy on oral arguments in Sanchez-Llamas v. Oregon and Bustillo v. Johnson. The cases concern the enforceability of the Vienna Convention’s promise of consular access for foreign defendants. Here is Opinio Juris on the cases….
seems like a promising compromise, which would give the foreign defendants a right to challenge their lawyers’ effectiveness of counsel if they weren’t informed of their treaty rights
It would be easy enough to find deficient performance in most cases (counsel should have known of applicable law), but how would you show prejudice (impact of failure to inform of right to consular access on fairness of the process)? How would you show reasonable likelihood of different outcome, etc.?
In terms of the ICJ decisions, I don’t think the SCOTUS has to worry about prejudice. So long as the case can be reviewed in some way (ineffective assistance of counsel is definitely an interesting way), this meets the “review and reconsideration” requirement set out in LaGrand/Avena. Under the ICJ decisions, they just have to get their day in court, not win.
Aaron:
this meets the “review and reconsideration” requirement set out in LaGrand/Avena
For ICJ purposes, the availability of a privately enforced right under an ineffective-assistance rubric could well save the day; I certainly don’t have the experience or expertise to reason that out. Rather, I was looking at the problem from the litigator’s point of view, which is just how could you show prejudice? I don’t think you can, so I think it’s an ineffectual remedy (as opposed to suppression).
I agree in that respect that prejudice would be hard to show – but isn’t it usually hard to show for IAOC claims?