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Posted Oct. 30, 2006

Supreme Court Leaves Role of International Treaties Murky in Bustillo, Says Panel

Bustillo Panelists

Pictured from left to right: Mark Stancil; William Thro, Virginia Solicitor General;
Prof. Paul Stephan; Prof. George Rutherglen

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The U.S. Supreme Court last term held that Honduran national Mario Bustillo, convicted of murder in Fairfax County, could not assert a claim under Article 36 of the Vienna Convention on Consular Relations on collateral habeas corpus review.  The claim, the Court held, was procedurally defaulted because Bustillo failed to raise the issue at trial.  In avoiding the merits of the Article 36 claim, the Court punted on the opportunity to clarify the role of international treaties in domestic law, said a panel of attorneys and U.Va. law professors who worked on the case and discussed its meaning Oct. 19 at the Law School.

Article 36 requires that when a signatory nation detains a foreign national, the nation must provide and notify the detainee of the right to speak with his or her consulate.  In Bustillo, police never informed the detainee that he could request that the Honduran consulate be notified of his detention.  Bustillo was convicted and sentenced to prison, and his conviction and sentence were affirmed on appeal.  Bustillo then filed a habeas petition in state court arguing, for the first time, that authorities had violated his right to consular notification under Article 36.  The court dismissed that claim as procedurally barred because he had failed to raise it at trial or on appeal.  The Virginia Supreme Court affirmed, and the U.S. Supreme Court granted certiorari.  As an associate at a Washington, D.C., law firm, Mark Stancil, who now co-directs the Law School’s Supreme Court litigation clinic, argued Bustillo’s case before the Supreme Court.    

Both sides, Stancil noted, conceded that this treaty is self-executing, which makes it equivalent to a statute.  The disputed point was whether the rights created by the text are private rights that can be enforced by an individual. 

“There is a difference between what a treaty says and whether it creates private rights,” Stancil said.  “The text of this treaty is unambiguous on this point.  It refers to the foreign nationals’ rights as ‘his’ rights.” 

Stancil said that this dispute originates in a case litigated before the D.C. Circuit in the 1980s.  In that case, Stancil said that Judge Robert Bork, in concurrence, suggested that a treaty should be presumed to not create private rights.  “This is a presumption that takes on a life of its own and doesn’t exist in cases as an interpretative matter,” Stancil said.  “The Court has repeatedly enforced rights on behalf of individuals.” 

The very purpose of this treaty, Stancil suggested, also supported the idea that the treaty creates private rights.

“At the time [the treaty was ratified], in the 60s, the world was different, and you couldn’t be assured that if your national was detained in a foreign country, your national would receive fair treatment and consular notification,” Stancil said.  Stancil noted that America now is the only superpower left.  “It’s disturbing that now, when the U.S. position is unrivaled, that the executive has taken a position that basically backtracks on what are the original understandings of the agreements.” 

Virginia Solicitor General William Thro, who argued the case for the commonwealth, responded to Stancil.

“I think that what the Court is saying in this decision is that the United States is different,” Thro said.  “The Court said that the United States is unique and already has a high level of constitutional protection regardless of whether you are a foreign national.  You get counsel, you have Miranda warnings, we have jury trials, you have all these appeals, you conceivably have post-conviction habeas proceedings.  We’re very proud of that fact.  The implicit message is that we have so many safeguards that we don’t have to worry about foreign nationals being treated differently or railroaded.”  Thro noted that while this is certainly a reality, it is not necessarily a two-way street.  “If I go to South Africa and am arrested, I don’t want to be treated like a South African citizen because they don’t have that level of constitutional protection.” 

Thro also noted that the majority opinion seemed to ignore prior case law from the International Court of Justice.  The Court gave “respectful consideration” to the ICJ’s view, he said, but noted this is the same level of consideration provided for law review articles.    

Thro argued that this case provides a significant insight into Chief Justice John Roberts and his approach to judging. “I think that the case could have been 9-0.  Justice [Ruth Bader] Ginsburg, in her concurrence, seems to hint that, by saying that even if we apply the dissent’s test, Virginia still wins.  Roberts could have written in a 9-0 decision that…sometimes it trumps procedural default.  That would have been narrow, that would have been consensus, that would have been everything that John Roberts is supposed to stand for according to the media.  Instead he wrote a 5-4 absolutist bright-line test, never does it result in suppression, never does it trump state procedural rules.  Roberts had an opportunity to have a narrow minimalist holding and instead he went for the other way.”

After Stancil and Thro presented their thoughts, professors George Rutherglen and Paul Stephan discussed where the case fits into the broader body of international law.  Rutherglen said that the case is more interesting about what it does not decide than what it does decide.  The self-enforcing nature of the treaty is one of these unclear issues.  Three justices voted that the treaty is self-enforcing, and Justice Ginsburg tended in that direction, he said.  The case also raises significant questions about the influence that international law should have on American law, Rutherglen said.  “In admiralty law there is a principle that when an international convention tries to protect citizens of another nation and there are feasible means without great costs to our system of justice for affording that protection, it should be granted.”

Stephan, who filed an amicus brief in the case, noted that there is an open question of the structure of judicial enforcement of international law rights.  The Seventh and Ninth circuits have expanded these rights in recent years in the area of private suits for damages in section-1983 actions and under the alien tort statute.  “The particular issue of private enforcement of this particular provision of the Vienna convention is actually an issue of some consequence.”

The panel was sponsored by the J.B. Moore Society of International Law.
• Reported by robin cook '07

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