Over at Opinio Juris, my Georgetown Law colleague Carlos Vazquez gives his initial take on the Sanchez-Llamas and Bustillo cases. Here is an excerpt:

As it did in Breard v. Greene, the Court said today that the ICJ’s interpretation of the VCCR [Vienna Convention on Consular Relations] 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.

Vasquez's concluding observations are important. As noted in the previous post, even though the majority ducked the issue of whether this treaty-- the Vienna Convention on Consular Relations-- is self-executing, it did nothing to alter existing precedents about the self-executing nature of treaties. And, as Professor Vasquez notes, four Justices opined that the Vienna Convention itself was self-executing: Justices Breyer, Stevens, and Souter-- who dissented from the opinion of the Court, and Justice Ginsburg, who concurred in the judgment of the Court, but concluded that the Convention was self-executing.