John Parry at Lewis & Clark has put together a terrific symposium on the Supreme Court’s decision last Term in Sanchez-Llamas v. Oregon, available here. In Sanchez-Llamas, the Court considered the extent to which foreign nationals have judicially enforceable rights and remedies for violations of Article 36 of the Vienna Convention on Consular Relations. Article 36, the so-called “consular notification” provision, requires that foreign nationals arrested by the police be notified of their right to contact their country’s consulate. Sanchez-Llamas and another petitioner, Bustillo, had not been notified of their Article 36 rights upon arrest. Sanchez-Llamas argued that the appropriate remedy for the treaty violation was suppression of incriminating statements taken during his interrogation, on the ground that they had been obtained in violation of Article 36. In Bustillo’s case, the issue was whether a state could apply its procedural default rules to Article 36 violations, despite a ruling to the contrary by the International Court of Justice. Chief Justice Roberts, writing for the majority, ruled against the petitioners on both issues.
Contributors to the symposium explore a wide variety of issues raised by the Court’s decision. Julian Ku suggests that Sanchez-Llamas represents a serious setback to the “burgeoning movement” toward domestic court enforcement of international tribunal decisions. Janet Koven Levit, on the other hand, offers a “glass half full” take, arguing that “a multitude of judicial and non-judicial actors have helped entrench Vienna Convention rights over the past decade, … and the Court did little to stymie or disrupt these constitutive processes.” Peggy McGuinness offers an intriguing take on Sanchez-Llamas as part of the ongoing debate regarding American human rights exceptionalism, “and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.” Paul Stephan explores a key issue left unresolved by the Court — when a private individual may invoke a treaty provision before a U.S. court. He argues that in addressing the issue, “the Court should enlist the techniques it uses to determine when private litigants may invoke legislative enactments.”
My own contribution to the symposium argues that Sanchez-Llamas reveals the Chief Justice in a new light: Far from a knee-jerk “nationalist” with respect to judicial dialogue with foreign and international courts, Roberts instead demonstrates his transnationalist instincts, engaging in dialogue with both the domestic courts of our treaty partners, and with the ICJ itself.