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Washington-Twice last week the U.S. Supreme Court delved into the possible application of rights and remedies under international law but in two very different contexts: the war on crime and the war on terror. And in both contexts, the Bush administration argued there were no judicially enforceable rights created. The day after the justices heard arguments on whether enemy combatant Salim Hamdan, detained at Guant�namo Bay, was entitled to certain protections under the Geneva Conventions, the justices took up the much less heralded cases of two foreign nationals claiming that their rights under the Vienna Convention were violated and that their criminal convictions should be set aside. Moises Sanchez-Llamas, a Mexican national convicted of attempted murder, and Mario Bustillo, a Honduran citizen convicted of first-degree murder, contend that Article 36 of the Vienna treaty requires signing nations to notify “without delay” a detained foreign national of his right to request help from his country’s consul and, if the foreign national asks, to inform the consul of the arrest or detention. Sanchez-Llamas v. Oregon, No. 04-10566; Bustillo v. Johnson, No. 05-51. About six years ago, they say, the U.S. government reversed its position that Article 36 creates individual rights of consular notice and access. The justices agreed to decide whether it does, and whether suppression of evidence sought by Sanchez-Llamas, or the habeas relief sought by Bustillo, would be appropriate remedies for violations of Article 36. Focused on remedy During the 90-minute argument, which featured five lawyers-two for the criminal defendants and one each for Oregon, Virginia and the United States-the justices focused primarily on the remedy, not the rights question. The International Court of Justice (ICJ) has said that treaty signatories are to provide a reasonable remedy, noted Justice Stephen G. Breyer. If the foreign national has a lawyer, he said, perhaps the lawyer should inform him of his right, and if the lawyer fails to do so, that is ineffective assistance of counsel. “Is that sufficient in the appropriate case?” he asked. Bustillo’s counsel, Mark T. Stancil of the Washington office of Houston’s Baker Botts, answered, “Relying on the lawyer to do the duty of the state does not effectuate the treaty. The treaty says the state has to notify.” “Yes, the state has to notify,” said Justice David H. Souter, “but the lawyer should be taxed with knowing that this is the right, that the treaty is the law of the land, and he should raise the question of whether notice has been given, just as he asks the client if he got his Miranda rights. If he doesn’t, then it’s ineffective assistance.” But this situation is different from Miranda warnings, countered Stancil. The right to notice and access is a stand-alone right. “If you push these claims into ineffective assistance of counsel, they evaporate,” he added, noting that there have been about 60 ineffective assistance of counsel claims based on Vienna Convention violations, and courts reportedly have found ineffective assistance in “one or none” of them. Oregon Solicitor General Mary H. Williams told the justices that it would be “revolutionary” if the high court interpreted the Vienna Convention as sought by the defendants. “Our problem is: The ICJ said you have to give a remedy,” said Breyer. However, Williams countered, “The treaty makes clear in its preamble that it’s concerned with the obligation of the signatories and not with creating individual rights and remedies.” “Should police officers give [notice] as part of the Miranda warnings?” asked Chief Justice John G. Roberts Jr. Williams said that the U.S. State Department recommends police give notice as soon as they know a person is a foreign national. “We’ve made better efforts to comply with our obligation under the treaty, but that doesn’t lead to suppression of evidence for violations,” Williams added. U.S. Deputy Solicitor General Gregory Garre told the court, “It is a traditional rule of international law that treaties don’t create individual enforceable rights.” The ICJ decision that a remedy must be provided “to be blunt, is wrong,” he said, adding that the traditional way to enforce the treaty is to give notice to the detainee at the point it is determined that he is a foreign national.

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