Sanchez-Llamas v. Oregon

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SANCHEZ-LLAMAS v. OREGON

CERTIORARI TO THE SUPREME COURT OF OREGON

No. 04–10566. Argued March 29, 2006—Decided June 28, 2006*
Article 36(1)(b) of the Vienna Convention on Consular Relations pro
vides that if a person detained by a foreign country “so requests, the
competent authorities of the receiving State shall, without delay, in
form the consular post of the sending State” of such detention, and
“inform the [detainee] of his rights under this sub-paragraph.” Arti
cle 36(2) specifies: “The rights referred to in paragraph 1 . . . shall be
exercised in conformity with the laws and regulations of the receiving
State, subject to the proviso . . . that the said laws . . . must enable
full effect to be given to the purposes for which the rights accorded
under this Article are intended.” Along with the Convention, the
United States ratified the Optional Protocol Concerning the Compul
sory Settlement of Disputes, which provides: “Disputes arising out of
the . . . Convention shall lie within the compulsory jurisdiction of the
International Court of Justice [(ICJ)].” The United States withdrew
from the Protocol on March 7, 2005.
Petitioner in No. 04–10566, Moises Sanchez-Llamas, is a Mexican
national. When he was arrested after an exchange of gunfire with
police, officers did not inform him that he could ask to have the Mexi
can Consulate notified of his detention. During interrogation, he
made incriminating statements regarding the shootout. Before his
trial for attempted murder and other offenses, Sanchez-Llamas
moved to suppress those statements on the ground, inter alia, that
the authorities had failed to comply with Article 36. The state court
denied that motion and Sanchez-Llamas was convicted and sentenced
to prison, and the Oregon Court of Appeals affirmed. The State Su
——————
* Together with No. 05–51, Bustillo v. Johnson, Director, Virginia
Department of Corrections, on certiorari to the Supreme Court of Vir
ginia.
2 SANCHEZ-LLAMAS v. OREGON

Syllabus

preme Court also affirmed, concluding that Article 36 does not create
rights to consular access or notification that a detained individual
can enforce in a judicial proceeding.
Petitioner in No. 05–51, Mario Bustillo, a Honduran national, was
arrested and charged with murder, but police never informed him
that he could request that the Honduran Consulate be notified of his
detention. He was convicted and sentenced to prison, and his convic
tion and sentence were affirmed on appeal. He 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 found no
reversible error.
Held: Even assuming without deciding that the Convention creates
judicially enforceable rights, suppression is not an appropriate rem
edy for a violation, and a State may apply its regular procedural de
fault rules to Convention claims. Pp. 7–25.
(a) Because petitioners are not in any event entitled to relief, the
Court need not resolve whether the Convention grants individuals
enforceable rights, but assumes, without deciding, that Article 36
does so. Pp. 7–8.
(b) Neither the Convention itself nor this Court’s precedents apply
ing the exclusionary rule support suppression of a defendant’s state
ments to police as a remedy for an Article 36 violation.
The Convention does not mandate suppression or any other specific
remedy, but expressly leaves Article 36’s implementation to domestic
law: Article 36 rights must “be exercised in conformity with the laws
. . . of the receiving State.” Art. 36(2). Sanchez-Llamas’ argument
that suppression is appropriate under United States law and should
be required under the Court’s authority to develop remedies for the
enforcement of federal law in state-court criminal proceedings is re
jected. “It is beyond dispute that [this Court does] not hold a super
visory power over the [state] courts.” Dickerson v. United States, 530
U. S. 428, 438. The exclusionary rule cases on which Sanchez-Llamas
principally relies are inapplicable because they rest on the Court’s
supervisory authority over federal courts.
The Court’s authority to create a judicial remedy applicable in
state court must therefore lie, if anywhere, in the treaty itself.
Where a treaty provides for a particular judicial remedy, courts must
apply it as a requirement of federal law. Cf., e.g., United States v.
Giordano, 416 U. S. 505, 524–525. But where a treaty does not pro
vide a particular remedy, either expressly or implicitly, it is not for
the federal courts to impose one on the States through lawmaking of
their own. Even if the “full effect” language of Article 36(2) implicitly
 Cite as: 548 U. S. ____ (2006) 3

Syllabus

requires a judicial remedy, as Sanchez-Llamas claims, that Article
equally requires that Article 36(1) rights be exercised in conformity
with domestic law. Under domestic law, the exclusionary rule is not
a remedy this Court applies lightly. It has been used primarily to de
ter certain Fourth and Fifth Amendment violations, including, e.g.,
unconstitutional searches and seizures, Mapp v. Ohio, 367 U. S. 643,
655–657, and confessions exacted in violation of the right against
compelled self-incrimination or due process, Dickerson, supra, at 435.
In contrast, Article 36 has nothing to do with searches or interroga
tions and, indeed, does not guarantee defendants any assistance at
all. It secures for foreign nationals only the right to have their consu
late informed of their arrest or detention—not to have their consulate
intervene, or to have police cease their investigation pending any
such notice or intervention. Moreover, the failure to inform a defen
dant of his Article 36 rights is unlikely, with any frequency, to pro
duce unreliable confessions, see Watkins v. Sowders, 449 U. S. 341,
347, or to give the police any practical advantage in obtaining in
criminating evidence, see Elkins v. United States, 364 U. S. 206, 217.
Suppression would also be a vastly disproportionate remedy for an
Article 36 violation. The interests Sanchez-Llamas claims Article 36
advances are effectively protected by other constitutional and statu
tory requirements, including the right to an attorney and to protec
tion against compelled self-incrimination. Finally, suppression is not
the only means of vindicating Article 36 rights. For example, diplo
matic avenues—the primary means of enforcing the Vienna Conven
tion—remain open. Pp. 8–15.
(c) States may subject Article 36 claims to the same procedural de
fault rules that apply generally to other federal-law claims.
This question is controlled by the Court’s holding in Breard v.
Greene, 523 U. S. 371, 375, that the petitioner’s failure to raise an Ar
ticle 36 claim in state court prevented him from having the claim
heard in a subsequent federal habeas proceeding. Bustillo’s two rea
sons why Breard does not control are rejected.
First, he argues that Breard’s procedural default holding was un
necessary to the result because the petitioner there could not demon
strate prejudice from the default and because, in any event, the later
enacted Antiterrorism and Effective Death Penalty Act of 1996 su
perseded any right the petitioner had under the Vienna Convention
to have his claim heard on collateral review. Resolution of the proce
dural default question, however, was the principal reason for denying
the Breard petitioner’s claim, and the discussion of the issue occupied
the bulk of the Court’s reasoning. See 523 U. S., at 375–377. It is no
answer to argue that the procedural default holding was unnecessary
simply because the petitioner had several other ways to lose.
4 SANCHEZ-LLAMAS v. OREGON

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Second, Bustillo asserts that since Breard, the ICJ’s LaGrand and
Avena decisions have interpreted the Convention to preclude the ap
plication of procedural default rules to Article 36 claims. Although
the ICJ’s interpretation deserves “respectful consideration,” Breard,
supra, at 375, it does not compel the Court to reconsider Breard’s un
derstanding of the Convention. “The judicial Power of the United
States” is “vested in one supreme Court . . . and . . . inferior courts.”
U. S. Const., Art. III, §1. That “power . . . extend[s] to . . . treaties,”
Art. III, §2, and includes the duty “to say what the law is,” Marbury
v. Madison, 1 Cranch 137, 177. If treaties are to be given effect as
federal law, determining their meaning as a matter of federal law “is
emphatically the province and duty of the judicial department,”
headed by the “one supreme Court.” Ibid. Nothing in the ICJ’s
structure or purpose suggests that its interpretations were intended
to be binding on U. S. courts. Even according “respectful considera
tion,” the ICJ’s interpretation cannot overcome the plain import of
Article 36(2), which states that the rights it implements “shall be ex
ercised in conformity with the laws . . . of the receiving State.” In the
United States, this means that the rule of procedural default—which
applies even to claimed violations of our own Constitution, see Engle
v. Isaac, 456 U. S. 107, 129—applies also to Vienna Convention
claims. Bustillo points to nothing in the drafting history of Article 36
or in the contemporary practice of other Convention signatories that
undermines this conclusion. LaGrand’s conclusion that applying the
procedural default rule denies “full effect” to the purposes of Article
36, by preventing courts from attaching legal significance to an Arti
cle 36 violation, is inconsistent with the basic framework of an adver
sary system. Such a system relies chiefly on the parties to raise sig
nificant issues and present them to the courts in the appropriate
manner at the appropriate time for adjudication. See Castro v.
United States, 540 U. S. 375, 386. Procedural default rules generally
take on greater importance in an adversary system than in the sort of
magistrate-directed, inquisitorial legal system characteristic of many
of the other Convention signatories. Under the ICJ’s reading of “full
effect,” Article 36 claims could trump not only procedural default
rules, but any number of other rules requiring parties to present
their legal claims at the appropriate time for adjudication, such as
statutes of limitations and prohibitions against filing successive ha
beas petitions. This sweeps too broadly, for it reads the “full effect”
proviso in a way that leaves little room for the clear instruction in
Article 36(2) that Article 36 rights “be exercised in conformity with
the laws . . . of the receiving State.” A comparison with a suspect’s
rights under Miranda v. Arizona, 384 U. S. 436, disposes of Bustillo’s
“full effect” claim. Although the failure to inform defendants of their
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right to consular notification may prevent them from becoming aware
of their Article 36 rights and asserting them at trial, precisely the
same thing is true of Miranda rights. Nevertheless, if a defendant
fails to raise his Miranda claim at trial, procedural default rules may
bar him from raising the claim in a subsequent postconviction pro
ceeding. Wainwright v. Sykes, 433 U. S. 72, 87. Bustillo’s attempt to
analogize an Article 36 claim to a claim under Brady v. Maryland,
373 U. S. 83, that the prosecution failed to disclose exculpatory evi
dence is inapt. Finally, his argument that Article 36 claims are most
appropriately raised post-trial or on collateral review under Massaro
v. United States, 538 U. S. 500, is rejected. See Dickerson, supra, at
438. Pp. 15–25.
(d) The Court’s holding in no way disparages the Convention’s im
portance. It is no slight to the Convention to deny petitioners’ claims
under the same principles this Court would apply to claims under an
Act of Congress or the Constitution itself. P. 25.
No. 04–10566, 338 Ore. 267, 108 P. 3d 573, and No. 05–51, affirmed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed an opin
ion concurring in the judgment. BREYER, J., filed a dissenting opinion,
in which STEVENS and SOUTER, JJ., joined, and in which GINSBURG, J.,
joined as to Part II.
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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 04–10566 and 05–51
_________________

MOISES SANCHEZ-LLAMAS, PETITIONER
04–10566 v.
OREGON
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

OREGON

MARIO A. BUSTILLO, PETITIONER
05–51 v.
GENE M. JOHNSON, DIRECTOR, VIRGINIA
DEPARTMENT OF CORRECTIONS
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[June 28, 2006]

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Article 36 of the Vienna Convention on Consular Rela
tions (Vienna Convention or Convention), Apr. 24, 1963,
[1970] 21 U. S. T. 77, 100–101, T. I. A. S. No. 6820, ad
dresses communication between an individual and his
consular officers when the individual is detained by au
thorities in a foreign country. These consolidated cases
concern the availability of judicial relief for violations of
Article 36. We are confronted with three questions. First,
does Article 36 create rights that defendants may invoke
against the detaining authorities in a criminal trial or in a
postconviction proceeding? Second, does a violation of
Article 36 require suppression of a defendant’s statements
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Opinion of the Court

to police? Third, may a State, in a postconviction proceed
ing, treat a defendant’s Article 36 claim as defaulted
because he failed to raise the claim at trial? We conclude,
even assuming the Convention creates judicially enforce
able rights, that suppression is not an appropriate remedy
for a violation of Article 36, and that a State may apply its
regular rules of procedural default to Article 36 claims.
We therefore affirm the decisions below.
I

A

The Vienna Convention was drafted in 1963 with the
purpose, evident in its preamble, of “contribut[ing] to the
development of friendly relations among nations, irrespec
tive of their differing constitutional and social systems.”
21 U. S. T., at 79. The Convention consists of 79 articles
regulating various aspects of consular activities. At pre
sent, 170 countries are party to the Convention. The
United States, upon the advice and consent of the Senate,
ratified the Convention in 1969. Id., at 77.
Article 36 of the Convention concerns consular officers’
access to their nationals detained by authorities in a
foreign country. The article provides that “if he so re
quests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the send
ing State if, within its consular district, a national of that
State is arrested or committed to prison or to custody
pending trial or is detained in any other manner.” Art.
36(1)(b), id., at 101.1 In other words, when a national of
——————
1 In
its entirety, Article 36 of the Vienna Convention states:
“1. With a view to facilitating the exercise of consular functions
relating to nationals of the sending State:
“(a) consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with
and access to consular officers of the sending State;
“(b) if he so requests, the competent authorities of the receiving State
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Opinion of the Court

one country is detained by authorities in another, the
authorities must notify the consular officers of the de
tainee’s home country if the detainee so requests. Article
36(1)(b) further states that “[t]he said authorities shall
inform the person concerned [i.e., the detainee] without
delay of his rights under this sub-paragraph.” Ibid. The
Convention also provides guidance regarding how these
requirements, and the other requirements of Article 36,
are to be implemented:
“The rights referred to in paragraph 1 of this Article
shall be exercised in conformity with the laws and
regulations of the receiving State, subject to the pro
viso, however, that the said laws and regulations
must enable full effect to be given to the purposes for
which the rights accorded under this Article are in
tended.” Art. 36(2), ibid.

——————
shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any
other manner. Any communication addressed to the consular post by
the person arrested, in prison, custody or detention shall also be for
warded by the said authorities without delay. The said authorities
shall inform the person concerned without delay of his rights under this
sub-paragraph;
“(c) consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They
shall also have the right to visit any national of the sending State who
is in prison, custody or detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall refrain from taking
action on behalf of a national who is in prison, custody or detention if
he expressly opposes such action.
“2. The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and regula
tions must enable full effect to be given to the purposes for which the
rights accorded under this Article are intended.” 21 U. S. T., at 100–
101.
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Opinion of the Court

Along with the Vienna Convention, the United States
ratified the Optional Protocol Concerning the Compulsory
Settlement of Disputes (Optional Protocol or Protocol),
Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820.
The Optional Protocol provides that “[d]isputes arising out
of the interpretation or application of the Convention shall
lie within the compulsory jurisdiction of the International
Court of Justice [(ICJ)],” and allows parties to the Protocol
to bring such disputes before the ICJ. Id., at 326. The
United States gave notice of its withdrawal from the
Optional Protocol on March 7, 2005. Letter from Condo
leezza Rice, Secretary of State, to Kofi A. Annan, Secre
tary-General of the United Nations.
B
Petitioner Moises Sanchez-Llamas is a Mexican na
tional. In December 1999, he was involved in an exchange
of gunfire with police in which one officer suffered a gun
shot wound in the leg. Police arrested Sanchez-Llamas
and gave him warnings under Miranda v. Arizona, 384
U. S. 436 (1966), in both English and Spanish. At no time,
however, did they inform him that he could ask to have
the Mexican Consulate notified of his detention.
Shortly after the arrest and Miranda warnings, police
interrogated Sanchez-Llamas with the assistance of an
interpreter. In the course of the interrogation, Sanchez-
Llamas made several incriminating statements regarding
the shootout with police. He was charged with attempted
aggravated murder, attempted murder, and several other
offenses. Before trial, Sanchez-Llamas moved to suppress
the statements he made to police. He argued that sup
pression was warranted because the statements were
made involuntarily and because the authorities had failed
to comply with Article 36 of the Vienna Convention. The
trial court denied the motion. The case proceeded to trial,
and Sanchez-Llamas was convicted and sentenced to 201⁄2
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Opinion of the Court

years in prison.
He appealed, again arguing that the Vienna Convention
violation required suppression of his statements. The
Oregon Court of Appeals affirmed. Judgt. order reported
at 191 Ore. App. 399, 84 P. 3d 1133 (2004). The Oregon
Supreme Court also affirmed, concluding that Article 36
“does not create rights to consular access or notification
that are enforceable by detained individuals in a judicial
proceeding.” 338 Ore. 267, 276, 108 P. 3d 573, 578 (2005)
(en banc). We granted certiorari. 546 U. S. ___ (2005).
C
Petitioner Mario Bustillo, a Honduran national, was
with several other men at a restaurant in Springfield,
Virginia, on the night of December 10, 1997. That eve
ning, outside the restaurant, James Merry was struck in
the head with a baseball bat as he stood smoking a ciga
rette. He died several days later. Several witnesses at the
scene identified Bustillo as the assailant. Police arrested
Bustillo the morning after the attack and eventually
charged him with murder. Authorities never informed
him that he could request to have the Honduran Consu
late notified of his detention.
At trial, the defense pursued a theory that another man,
known as “Sirena,” was responsible for the attack. Two
defense witnesses testified that Bustillo was not the killer.
One of the witnesses specifically identified the attacker as
Sirena. In addition, a third defense witness stated that
she had seen Sirena on a flight to Honduras the day after
the victim died. In its closing argument before the jury,
the prosecution dismissed the defense theory about Si
rena. See App. in No. 05–51, p. 21 (“This whole Sirena
thing, I don’t want to dwell on it too much. It’s very con
venient that Mr. Sirena apparently isn’t available”). A
jury convicted Bustillo of first-degree murder, and he was
sentenced to 30 years in prison. His conviction and sen
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Opinion of the Court

tence were affirmed on appeal.
After his conviction became final, Bustillo filed a peti
tion for a writ of habeas corpus in state court. There, for
the first time, he argued that authorities had violated his
right to consular notification under Article 36 of the Vi
enna Convention. He claimed that if he had been advised
of his right to confer with the Honduran Consulate, he
“would have done so without delay.” App. in No. 05–51,
p. 60. Moreover, the Honduran Consulate executed an
affidavit stating that “it would have endeavoured to help
Mr. Bustillo in his defense” had it learned of his detention
prior to trial. Id., at 74. Bustillo insisted that the consu
late could have helped him locate Sirena prior to trial. His
habeas petition also argued, as part of a claim of ineffective
assistance of counsel, that his attorney should have advised
him of his right to notify the Honduran Consulate of his
arrest and detention.2
The state habeas court dismissed Bustillo’s Vienna
Convention claim as “procedurally barred” because he had
failed to raise the issue at trial or on appeal. App. to Pet.
for Cert. in No. 05–51, p. 43a. The court also denied Bust
illo’s claim of ineffective assistance of counsel, ruling that

——————
2 Bustillo’s habeas petition also presented newly acquired evidence

that tended to cast doubt on his conviction. Most notably, he produced
a secretly recorded videotape in which Sirena admitted killing Merry
and stated that Bustillo had been wrongly convicted. App. in No. 05–
51, pp. 38, 54. In addition, Bustillo argued that the prosecution vio
lated Brady v. Maryland, 373 U. S. 83 (1963), by failing to disclose that
on the night of the crime, police had questioned a man named “Julio C.
Osorto,” who is now known to be the same man as “Sirena.” The police
report concerning the encounter stated that Sirena appeared to have
ketchup on his pants. Bustillo contends that these stains might in fact
have been the victim’s blood. The Commonwealth disputes this. The
state habeas court found “no evidence of any transfer of the victim’s
blood to the assailant,” and concluded that the undisclosed encounter
between police and Sirena was not material under Brady. App. in No.
05–51, p. 167.
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Opinion of the Court

his belated claim that counsel should have informed him
of his Vienna Convention rights was barred by the appli
cable statute of limitations and also meritless under
Strickland v. Washington, 466 U. S. 668 (1984). App. in No.
05–51, p. 132. In an order refusing Bustillo’s petition for
appeal, the Supreme Court of Virginia found “no reversi
ble error” in the habeas court’s dismissal of the Vienna
Convention claim. App. to Pet. for Cert. in No. 05–51, p.
1a. We granted certiorari to consider the Vienna Conven
tion issue. 546 U. S. ___ (2005).
II
We granted certiorari as to three questions presented in
these cases: (1) whether Article 36 of the Vienna Conven
tion grants rights that may be invoked by individuals in a
judicial proceeding; (2) whether suppression of evidence is
a proper remedy for a violation of Article 36; and (3)
whether an Article 36 claim may be deemed forfeited
under state procedural rules because a defendant failed to
raise the claim at trial.
As a predicate to their claims for relief, Sanchez-Llamas
and Bustillo each argue that Article 36 grants them an
individually enforceable right to request that their consu
lar officers be notified of their detention, and an accompa
nying right to be informed by authorities of the availabil
ity of consular notification. Respondents and the United
States, as amicus curiae, strongly dispute this contention.
They argue that “there is a presumption that a treaty will
be enforced through political and diplomatic channels,
rather than through the courts.” Brief for United States 11;
ibid. (quoting Head Money Cases, 112 U. S. 580, 598 (1884)
(a treaty “ ‘is primarily a compact between independent
nations,’ ” and “ ‘depends for the enforcement of its provi
sions on the interest and the honor of the governments
which are parties to it’ ”)). Because we conclude that
Sanchez-Llamas and Bustillo are not in any event entitled
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Opinion of the Court

to relief on their claims, we find it unnecessary to resolve
the question whether the Vienna Convention grants indi
viduals enforceable rights. Therefore, for purposes of
addressing petitioners’ claims, we assume, without decid
ing, that Article 36 does grant Bustillo and Sanchez-
Llamas such rights.
A
Sanchez-Llamas argues that the trial court was re
quired to suppress his statements to police because au
thorities never told him of his rights under Article 36. He
refrains, however, from arguing that the Vienna Conven
tion itself mandates suppression. We think this a wise
concession. The Convention does not prescribe specific
remedies for violations of Article 36. Rather, it expressly
leaves the implementation of Article 36 to domestic law:
Rights under Article 36 are to “be exercised in conformity
with the laws and regulations of the receiving State.” Art.
36(2), 21 U. S. T., at 101. As far as the text of the Conven
tion is concerned, the question of the availability of the
exclusionary rule for Article 36 violations is a matter of
domestic law.
It would be startling if the Convention were read to
require suppression. The exclusionary rule as we know it
is an entirely American legal creation. See Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388, 415 (1971)
(Burger, C. J., dissenting) (the exclusionary rule “is unique
to American jurisprudence”). More than 40 years after the
drafting of the Convention, the automatic exclusionary
rule applied in our courts is still “universally rejected” by
other countries. Bradley, Mapp Goes Abroad, 52 Case W.
Res. L. Rev. 375, 399–400 (2001); see also Zicherman v.
Korean Air Lines Co., 516 U. S. 217, 226 (1996) (postratifica
tion understanding “traditionally considered” as an aid to
treaty interpretation). It is implausible that other signato
ries to the Convention thought it to require a remedy that
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Opinion of the Court

nearly all refuse to recognize as a matter of domestic law.
There is no reason to suppose that Sanchez-Llamas would
be afforded the relief he seeks here in any of the other 169
countries party to the Vienna Convention.3
For good reason then, Sanchez-Llamas argues only that
suppression is required because it is the appropriate
remedy for an Article 36 violation under United States
law, and urges us to require suppression for Article 36
violations as a matter of our “authority to develop reme
dies for the enforcement of federal law in state-court
criminal proceedings.” Reply Brief for Petitioner in No.
——————
3 See Declaration of Ambassador Maura A. Harty, Annex 4 to

Counter-Memorial of the United States in Case Concerning Avena and
other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, p. A386,
¶41 (Oct. 25, 2003) (Harty Declaration) (“With the possible exception of
Brazil, we are not aware of a single country that has a law, regulation
or judicial decision requiring that a statement taken before consular
notification and access automatically must be excluded from use at
trial” (footnote omitted)). According to the Harty Declaration, the
American Embassy in Brazil has been advised that Brazil considers
consular notification to be a right under the Brazilian Constitution.
Neither the declaration nor the parties point to a case in which a
Brazilian court has suppressed evidence because of a violation of that
right.
In a few cases, as several amici point out, the United Kingdom and
Australia appear to have applied a discretionary rule of exclusion for
violations of domestic statutes implementing the Vienna Convention.
See Brief for United States as Amicus Curiae 26, and n. 9; Brief for
National Association of Criminal Defense Lawyers as Amicus Curiae
16–23. The dissent similarly relies on two cases from Australia, post,
at 32 (opinion of BREYER, J.) (citing Tan Seng Kiah v. Queen (2001) 160
F. L. R. 26 (Ct. Crim. App. N. Terr.) and Queen v. Tan [2001]
W. A. S. C. 275 (Sup. Ct. W. Australia in Crim.)), where consular
notification rights are governed by a domestic statute that provides
rights beyond those required by Article 36 itself. See Crimes Act, No.
12, 1914, §23p (Australia). The Canadian case on which the dissent
relies, post, at 32, denied suppression, and concerned only the court’s
general discretionary authority to exclude a confession “whose admis
sion would adversely affect the fairness of an accused’s trial.” Queen v.
Partak [2001] 160 C. C. C. 3d 553, ¶61 (Ont. Super. Ct. of J.).
10 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

04–10566, p. 11.
For their part, the State of Oregon and the United
States, as amicus curiae, contend that we lack any such
authority over state-court proceedings. They argue that
our cases suppressing evidence obtained in violation of
federal statutes are grounded in our supervisory authority
over the federal courts—an authority that does not extend
to state-court proceedings. Brief for Respondent in No.
04–10566, pp. 42–43; Brief for United States 32–34; see
McNabb v. United States, 318 U. S. 332, 341 (1943) (sup
pressing evidence for violation of federal statute requiring
persons arrested without a warrant to be promptly pre
sented to a judicial officer); Mallory v. United States, 354
U. S. 449 (1957) (suppressing evidence for violation of simi
lar requirement of Fed. Rule Crim. Proc. 5(a)); Miller v.
United States, 357 U. S. 301 (1958) (suppressing evidence
obtained incident to an arrest that violated 18 U. S. C.
§3109). Unless required to do so by the Convention itself,
they argue, we cannot direct Oregon courts to exclude
Sanchez-Llamas’ statements from his criminal trial.
To the extent Sanchez-Llamas argues that we should
invoke our supervisory authority, the law is clear: “It is
beyond dispute that we do not hold a supervisory power
over the courts of the several States.” Dickerson v. United
States, 530 U. S. 428, 438 (2000); see also Smith v. Phillips,
455 U. S. 209, 221 (1982) (“Federal courts hold no supervi
sory authority over state judicial proceedings and may
intervene only to correct wrongs of constitutional dimen
sion”). The cases on which Sanchez-Llamas principally
relies are inapplicable in light of the limited reach of our
supervisory powers. Mallory and McNabb plainly rest on
our supervisory authority. Mallory, supra, at 453;
McNabb, supra, at 340. And while Miller is not clear
about its authority for requiring suppression, we have
understood it to have a similar basis. See Ker v. Califor
nia, 374 U. S. 23, 31 (1963).
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Opinion of the Court

We also agree with the State of Oregon and the United
States that our authority to create a judicial remedy appli
cable in state court must lie, if anywhere, in the treaty itself.
Under the Constitution, the President has the power, “by
and with the Advice and Consent of the Senate, to make
Treaties.” Art. II, §2, cl. 2. The United States ratified the
Convention with the expectation that it would be inter
preted according to its terms. See Restatement (Third) of
Foreign Relations Law of the United States §325(1) (1986)
(“An international agreement is to be interpreted in good
faith in accordance with the ordinary meaning to be given to
its terms in their context and in the light of its object and
purpose”). If we were to require suppression for Article 36
violations without some authority in the Convention, we
would in effect be supplementing those terms by enlarging
the obligations of the United States under the Convention.
This is entirely inconsistent with the judicial function. Cf.
The Amiable Isabella, 6 Wheat. 1, 71 (1821) (Story, J.) (“[T]o
alter, amend, or add to any treaty, by inserting any clause,
whether small or great, important or trivial, would be on our
part an usurpation of power, and not an exercise of judicial
functions. It would be to make, and not to construe a
treaty”).
Of course, it is well established that a self-executing
treaty binds the States pursuant to the Supremacy Clause,
and that the States therefore must recognize the force of the
treaty in the course of adjudicating the rights of litigants.
See, e.g., Hauenstein v. Lynham, 100 U. S. 483 (1880). And
where a treaty provides for a particular judicial remedy,
there is no issue of intruding on the constitutional pre
rogatives of the States or the other federal branches.
Courts must apply the remedy as a requirement of federal
law. Cf. 18 U. S. C. §2515; United States v. Giordano, 416
U. S. 505, 524–525 (1974). But where a treaty does not
provide a particular remedy, either expressly or implicitly, it
is not for the federal courts to impose one on the States
12 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

through lawmaking of their own.
Sanchez-Llamas argues that the language of the Con
vention implicitly requires a judicial remedy because it
states that the laws and regulations governing the exer
cise of Article 36 rights “must enable full effect to be given
to the purposes for which the rights . . . are intended,” Art.
36(2), 21 U. S. T., at 101 (emphasis added). In his view,
although “full effect” may not automatically require an
exclusionary rule, it does require an appropriate judicial
remedy of some kind. There is reason to doubt this inter
pretation. In particular, there is little indication that
other parties to the Convention have interpreted Article
36 to require a judicial remedy in the context of criminal
prosecutions. See Department of State Answers to Ques
tions Posed by the First Circuit in United States v. Nai
Fook Li, No. 97–2034 etc., p. A–9 (Oct. 15, 1999) (“We are
unaware of any country party to the [Vienna Convention]
that provides remedies for violations of consular notifica
tion through its domestic criminal justice system”).
Nevertheless, even if Sanchez-Llamas is correct that
Article 36 implicitly requires a judicial remedy, the Con
vention equally states that Article 36 rights “shall be
exercised in conformity with the laws and regulations of
the receiving State.” Art. 36(2), 21 U. S. T., at 101. Under
our domestic law, the exclusionary rule is not a remedy we
apply lightly. “[O]ur cases have repeatedly emphasized
that the rule’s ‘costly toll’ upon truth-seeking and law
enforcement objectives presents a high obstacle for those
urging application of the rule.” Pennsylvania Bd. of Proba
tion and Parole v. Scott, 524 U. S. 357, 364–365 (1998).
Because the rule’s social costs are considerable, suppres
sion is warranted only where the rule’s “ ‘remedial objec
tives are thought most efficaciously served.’ ” United
States v. Leon, 468 U. S. 897, 908 (1984) (quoting United
States v. Calandra, 414 U. S. 338, 348 (1974)).
We have applied the exclusionary rule primarily to deter
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Opinion of the Court

constitutional violations. In particular, we have ruled that
the Constitution requires the exclusion of evidence ob
tained by certain violations of the Fourth Amendment, see
Taylor v. Alabama, 457 U. S. 687, 694 (1982) (arrests in
violation of the Fourth Amendment); Mapp v. Ohio, 367
U. S. 643, 655–657 (1961) (unconstitutional searches and
seizures), and confessions exacted by police in violation of
the right against compelled self-incrimination or due proc
ess, see Dickerson, 530 U. S., at 435 (failure to give Miranda
warnings); Payne v. Arkansas, 356 U. S. 560, 568 (1958)
(involuntary confessions).
The few cases in which we have suppressed evidence for
statutory violations do not help Sanchez-Llamas. In those
cases, the excluded evidence arose directly out of statutory
violations that implicated important Fourth and Fifth
Amendment interests. McNabb, for example, involved the
suppression of incriminating statements obtained during a
prolonged detention of the defendants, in violation of a
statute requiring persons arrested without a warrant to be
promptly presented to a judicial officer. We noted that the
statutory right was intended to “avoid all the evil implica
tions of secret interrogation of persons accused of crime,”
318 U. S., at 344, and later stated that McNabb was “re
sponsive to the same considerations of Fifth Amendment
policy that . . . face[d] us . . . as to the states” in Miranda,
384 U. S., at 463. Similarly, in Miller, we required sup
pression of evidence that was the product of a search
incident to an unlawful arrest. 357 U. S., at 305; see
California v. Hodari D., 499 U. S. 621, 624 (1991) (“We have
long understood that the Fourth Amendment’s protection
against ‘unreasonable . . . seizures’ includes seizure of the
person”).
The violation of the right to consular notification, in
contrast, is at best remotely connected to the gathering of
evidence. Article 36 has nothing whatsoever to do with
searches or interrogations. Indeed, Article 36 does not
14 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

guarantee defendants any assistance at all. The provision
secures only a right of foreign nationals to have their
consulate informed of their arrest or detention—not to
have their consulate intervene, or to have law enforcement
authorities cease their investigation pending any such
notice or intervention. In most circumstances, there is
likely to be little connection between an Article 36 viola
tion and evidence or statements obtained by police.
Moreover, the reasons we often require suppression for
Fourth and Fifth Amendment violations are entirely
absent from the consular notification context. We require
exclusion of coerced confessions both because we disap
prove of such coercion and because such confessions tend
to be unreliable. Watkins v. Sowders, 449 U. S. 341, 347
(1981). We exclude the fruits of unreasonable searches on
the theory that without a strong deterrent, the constraints
of the Fourth Amendment might be too easily disregarded
by law enforcement. Elkins v. United States, 364 U. S.
206, 217 (1960). The situation here is quite different. The
failure to inform a defendant of his Article 36 rights is
unlikely, with any frequency, to produce unreliable confes
sions. And unlike the search-and-seizure context—where
the need to obtain valuable evidence may tempt authori
ties to transgress Fourth Amendment limitations—police
win little, if any, practical advantage from violating Arti
cle 36. Suppression would be a vastly disproportionate
remedy for an Article 36 violation.
Sanchez-Llamas counters that the failure to inform
defendants of their right to consular notification gives
them “a misleadingly incomplete picture of [their] legal
options,” Brief for Petitioner in No. 04–10566, p. 42, and
that suppression will give authorities an incentive to abide
by Article 36.
Leaving aside the suggestion that it is the role of police
generally to advise defendants of their legal options, we
think other constitutional and statutory requirements
 Cite as: 548 U. S. ____ (2006) 15

Opinion of the Court

effectively protect the interests served, in Sanchez-Llamas’
view, by Article 36. A foreign national detained on suspi
cion of crime, like anyone else in our country, enjoys under
our system the protections of the Due Process Clause.
Among other things, he is entitled to an attorney, and is
protected against compelled self-incrimination. See Wong
Wing v. United States, 163 U. S. 228, 238 (1896) (“[A]ll
persons within the territory of the United States are enti
tled to the protection guaranteed by” the Fifth and Sixth
Amendments). Article 36 adds little to these “legal options,”
and we think it unnecessary to apply the exclusionary rule
where other constitutional and statutory protections—many
of them already enforced by the exclusionary rule—
safeguard the same interests Sanchez-Llamas claims are
advanced by Article 36.
Finally, suppression is not the only means of vindicating
Vienna Convention rights. A defendant can raise an
Article 36 claim as part of a broader challenge to the
voluntariness of his statements to police. If he raises an
Article 36 violation at trial, a court can make appropriate
accommodations to ensure that the defendant secures, to
the extent possible, the benefits of consular assistance. Of
course, diplomatic avenues—the primary means of enforc
ing the Convention—also remain open.
In sum, neither the Vienna Convention itself nor our
precedents applying the exclusionary rule support sup
pression of Sanchez-Llamas’ statements to police.
B
The Virginia courts denied petitioner Bustillo’s Article
36 claim on the ground that he failed to raise it at trial or
on direct appeal. The general rule in federal habeas cases
is that a defendant who fails to raise a claim on direct
appeal is barred from raising the claim on collateral re
view. See Massaro v. United States, 538 U. S. 500, 504
(2003); Bousley v. United States, 523 U. S. 614, 621 (1998).
16 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

There is an exception if a defendant can demonstrate both
“cause” for not raising the claim at trial, and “prejudice”
from not having done so. Massaro, supra, at 504. Like
many States, Virginia applies a similar rule in state post-
conviction proceedings, and did so here to bar Bustillo’s
Vienna Convention claim. Normally, in our review of
state-court judgments, such rules constitute an adequate
and independent state-law ground preventing us from
reviewing the federal claim. Coleman v. Thompson, 501
U. S. 722, 729 (1991). Bustillo contends, however, that
state procedural default rules cannot apply to Article 36
claims. He argues that the Convention requires that
Article 36 rights be given “ ‘full effect’ ” and that Virginia’s
procedural default rules “prevented any effect (much less
‘full effect’) from being given to” those rights. Brief for
Petitioner in No. 05–51, p. 35.
This is not the first time we have been asked to set aside
procedural default rules for a Vienna Convention claim.
Respondent Johnson and the United States persuasively
argue that this question is controlled by our decision in
Breard v. Greene, 523 U. S. 371 (1998) (per curiam). In
Breard, the petitioner failed to raise an Article 36 claim in
state court—at trial or on collateral review—and then
sought to have the claim heard in a subsequent federal
habeas proceeding. Id., at 375. He argued that “the Con
vention is the ‘supreme law of the land’ and thus trumps
the procedural default doctrine.” Ibid. We rejected this
argument as “plainly incorrect,” for two reasons. Ibid.
First, we observed, “it has been recognized in interna
tional law that, absent a clear and express statement to
the contrary, the procedural rules of the forum State
govern the implementation of the treaty in that State.”
Ibid. Furthermore, we reasoned that while treaty protec
tions such as Article 36 may constitute supreme federal
law, this is “no less true of provisions of the Constitution
itself, to which rules of procedural default apply.” Id., at
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Opinion of the Court

376. In light of Breard’s holding, Bustillo faces an uphill
task in arguing that the Convention requires States to set
aside their procedural default rules for Article 36 claims.
Bustillo offers two reasons why Breard does not control
his case. He first argues that Breard’s holding concerning
procedural default was “unnecessary to the result,” Brief
for Petitioner in No. 05–51, p. 45, because the petitioner
there could not demonstrate prejudice from the default
and because, in any event, a subsequent federal statute—
the Antiterrorism and Effective Death Penalty Act of
1996, 110 Stat. 1214—superseded any right the petitioner
had under the Vienna Convention to have his claim heard
on collateral review. We find Bustillo’s contention unper
suasive. Our resolution of the procedural default question
in Breard was the principal reason for the denial of the
petitioner’s claim, and the discussion of the issue occupied
the bulk of our reasoning. See 523 U. S., at 375–377. It is
no answer to argue, as Bustillo does, that the holding in
Breard was “unnecessary” simply because the petitioner in
that case had several ways to lose. See Richmond Screw
Anchor Co. v. United States, 275 U. S. 331, 340 (1928).
Bustillo’s second reason is less easily dismissed. He
argues that since Breard, the ICJ has interpreted the
Vienna Convention to preclude the application of proce
dural default rules to Article 36 claims. The LaGrand
Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of
June 27) (LaGrand), and the Case Concerning Avena and
other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No.
128 (Judgment of Mar. 31) (Avena), were brought before
the ICJ by the governments of Germany and Mexico,
respectively, on behalf of several of their nationals facing
death sentences in the United States. The foreign gov
ernments claimed that their nationals had not been in
formed of their right to consular notification. They further
argued that application of the procedural default rule to
their nationals’ Vienna Convention claims failed to give
18 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

“full effect” to the purposes of the Convention, as required
by Article 36. The ICJ agreed, explaining that the defen
dants had procedurally defaulted their claims “because of
the failure of the American authorities to comply with
their obligation under Article 36.” LaGrand, supra, at
497, ¶91; see also Avena, supra, ¶113. Application of the
procedural default rule in such circumstances, the ICJ
reasoned, “prevented [courts] from attaching any legal
significance” to the fact that the violation of Article 36
kept the foreign governments from assisting in their na
tionals’ defense. LaGrand, supra, at 497, ¶91; see also
Avena, supra, ¶113.
Bustillo argues that LaGrand and Avena warrant revis
iting the procedural default holding of Breard. In a simi
lar vein, several amici contend that “the United States is
obligated to comply with the Convention, as interpreted by
the ICJ.” Brief for ICJ Experts 11 (emphases added). We
disagree. Although the ICJ’s interpretation deserves
“respectful consideration,” Breard, supra, at 375, we con
clude that it does not compel us to reconsider our under
standing of the Convention in Breard.4
Under our Constitution, “[t]he judicial Power of the
United States” is “vested in one supreme Court, and in
such inferior Courts as the Congress may from time to
time ordain and establish.” Art. III, §1. That “judicial
Power . . . extend[s] to . . . Treaties.” Id., §2. And, as Chief
Justice Marshall famously explained, that judicial power

——————
4 The dissent, in light of LaGrand and Avena, “would read Breard . . .

as not saying that the Convention never trumps any procedural default
rule.” Post, at 26 (opinion of BREYER, J.). This requires more than
“reading an exception into Breard’s language,” post, at 27, amounting
instead to overruling Breard’s plain holding that the Convention does
not trump the procedural default doctrine. While the appeal of such a
course to a Breard dissenter may be clear, see 523 U. S., at 380
(BREYER, J., dissenting), “respectful consideration” of precedent should
begin at home.
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Opinion of the Court

includes the duty “to say what the law is.” Marbury v.
Madison, 1 Cranch 137, 177 (1803). If treaties are to be
given effect as federal law under our legal system, deter
mining their meaning as a matter of federal law “is em
phatically the province and duty of the judicial depart
ment,” headed by the “one supreme Court” established by
the Constitution. Ibid.; see also Williams v. Taylor, 529
U. S. 362, 378–379 (2000) (opinion of STEVENS, J.) (“At the
core of [the judicial] power is the federal courts’ independent
responsibility—independent from its coequal branches in
the Federal Government, and independent from the sepa
rate authority of the several States—to interpret federal
law”). It is against this background that the United States
ratified, and the Senate gave its advice and consent to, the
various agreements that govern referral of Vienna Con
vention disputes to the ICJ.
Nothing in the structure or purpose of the ICJ suggests
that its interpretations were intended to be conclusive on
our courts.5 The ICJ’s decisions have “no binding force
——————
5 The dissent’s extensive list of lower court opinions that have “looked

to the ICJ for guidance,” post, at 21–22, is less impressive than first
appears. Many of the cited opinions merely refer to, or briefly describe,
ICJ decisions without in any way relying on them as authority. See,
e.g., Committee of United States Citizens Living in Nicaragua v.
Reagan, 859 F. 2d 929, 932, 935 (CADC 1988); Conservation Law
Foundation of New England v. Secretary of Interior, 790 F. 2d 965, 967
(CA1 1986); Narenji v. Civiletti, 617 F. 2d 745, 748 (CADC 1979); Diggs
v. Richardson, 555 F. 2d 848, 849 (CADC 1976); Rogers v. Societe
Internationale Pour Participations Industrielles et Commerciales, S. A.,
278 F. 2d 268, 273, n. 3 (CADC 1960) (Fahy, J., dissenting). Others cite
ICJ opinions alongside law review articles for general propositions
about international law. See, e.g., McKesson Corp. v. Islamic Republic
of Iran, 52 F. 3d 346, 352 (CADC 1995); Princz v. Federal Republic of
Germany, 26 F. 3d 1166, 1180, 1184 (CADC 1994) (Wald, J., dissent
ing); Sadat v. Mertes, 615 F. 2d 1176, 1187, n. 14 (CA7 1980); United
States v. Postal, 589 F. 2d 862, 869 (CA5 1979). Moreover, all but two
of the cited decisions from this Court concern technical issues of bound
ary demarcation. See post, at 21.
20 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

except between the parties and in respect of that particu
lar case,” Statute of the International Court of Justice,
Art. 59, 59 Stat. 1062, T. S. No. 993 (1945) (emphasis
added). Any interpretation of law the ICJ renders in the
course of resolving particular disputes is thus not binding
precedent even as to the ICJ itself; there is accordingly
little reason to think that such interpretations were in
tended to be controlling on our courts. The ICJ’s principal
purpose is to arbitrate particular disputes between na
tional governments. Id., at 1055 (ICJ is “the principal
judicial organ of the United Nations”); see also Art. 34, id.,
at 1059 (“Only states [i.e., countries] may be parties in
cases before the Court”). While each member of the
United Nations has agreed to comply with decisions of the
ICJ “in any case to which it is a party,” United Nations
Charter, Art. 94(1), 59 Stat. 1051, T. S. No. 933 (1945), the
Charter’s procedure for noncompliance—referral to the
Security Council by the aggrieved state—contemplates
quintessentially international remedies, Art. 94(2), ibid.
In addition, “[w]hile courts interpret treaties for them
selves, the meaning given them by the departments of
government particularly charged with their negotiation
and enforcement is given great weight.” Kolovrat v. Ore
gon, 366 U. S. 187, 194 (1961). Although the United
States has agreed to “discharge its international obliga
tions” in having state courts give effect to the decision in
Avena, it has not taken the view that the ICJ’s interpreta
tion of Article 36 is binding on our courts. President Bush,
Memorandum for the Attorney General (Feb. 28, 2005),
App. to Brief for United States as Amicus Curiae in
Medellín v. Dretke, O. T. 2004, No. 04–5928, p. 9a. More
over, shortly after Avena, the United States withdrew
from the Optional Protocol concerning Vienna Convention
disputes. Whatever the effect of Avena and LaGrand
before this withdrawal, it is doubtful that our courts
should give decisive weight to the interpretation of a
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Opinion of the Court

tribunal whose jurisdiction in this area is no longer recog
nized by the United States.
LaGrand and Avena are therefore entitled only to the
“respectful consideration” due an interpretation of an
international agreement by an international court.
Breard, 523 U. S., at 375. Even according such considera
tion, the ICJ’s interpretation cannot overcome the plain
import of Article 36. As we explained in Breard, the pro
cedural rules of domestic law generally govern the imple
mentation of an international treaty. Ibid. In addition,
Article 36 makes clear that the rights it provides “shall be
exercised in conformity with the laws and regulations of
the receiving State” provided that “full effect . . . be given
to the purposes for which the rights accorded under this
Article are intended.” Art. 36(2), 21 U. S. T., at 101. In
the United States, this means that the rule of procedural
default—which applies even to claimed violations of our
Constitution, see Engle v. Isaac, 456 U. S. 107, 129
(1982)—applies also to Vienna Convention claims. Busti
llo points to nothing in the drafting history of Article 36 or
in the contemporary practice of other signatories that
undermines this conclusion.
The ICJ concluded that where a defendant was not
notified of his rights under Article 36, application of the
procedural default rule failed to give “full effect” to the
purposes of Article 36 because it prevented courts from
attaching “legal significance” to the Article 36 violation.
LaGrand, 2001 I. C. J., at 497–498, ¶¶90–91. This reason
ing overlooks the importance of procedural default rules in
an adversary system, which relies chiefly on the parties to
raise significant issues and present them to the courts in
the appropriate manner at the appropriate time for adju
dication. See Castro v. United States, 540 U. S. 375, 386
(2003) (SCALIA, J., concurring in part and concurring in
judgment) (“Our adversary system is designed around the
premise that the parties know what is best for them, and
22 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

are responsible for advancing the facts and arguments
entitling them to relief”). Procedural default rules are
designed to encourage parties to raise their claims promptly
and to vindicate “the law’s important interest in the finality
of judgments.” Massaro, 538 U. S., at 504. The conse
quence of failing to raise a claim for adjudication at the
proper time is generally forfeiture of that claim. As a
result, rules such as procedural default routinely deny “legal
significance”—in the Avena and LaGrand sense—to other
wise viable legal claims.
Procedural default rules generally take on greater im
portance in an adversary system such as ours than in the
sort of magistrate-directed, inquisitorial legal system
characteristic of many of the other countries that are
signatories to the Vienna Convention. “What makes a
system adversarial rather than inquisitorial is . . . the
presence of a judge who does not (as an inquisitor does)
conduct the factual and legal investigation himself, but
instead decides on the basis of facts and arguments pro
and con adduced by the parties.” McNeil v. Wisconsin, 501
U. S. 171, 181, n. 2 (1991). In an inquisitorial system, the
failure to raise a legal error can in part be attributed to the
magistrate, and thus to the state itself. In our system,
however, the responsibility for failing to raise an issue
generally rests with the parties themselves.
The ICJ’s interpretation of Article 36 is inconsistent
with the basic framework of an adversary system. Under
the ICJ’s reading of “full effect,” Article 36 claims could
trump not only procedural default rules, but any number
of other rules requiring parties to present their legal
claims at the appropriate time for adjudication. If the
State’s failure to inform the defendant of his Article 36
rights generally excuses the defendant’s failure to comply
with relevant procedural rules, then presumably rules
such as statutes of limitations and prohibitions against
filing successive habeas petitions must also yield in the
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Opinion of the Court

face of Article 36 claims. This sweeps too broadly, for it
reads the “full effect” proviso in a way that leaves little
room for Article 36’s clear instruction that Article 36
rights “shall be exercised in conformity with the laws and
regulations of the receiving State.” Art. 36(2), 21 U. S. T.,
at 101.6
——————
6 The dissent would read the ICJ’s decisions to require that proce
dural default rules give way only where “the State is unwilling to
provide some other effective remedy, for example (if the lawyer acts
incompetently in respect to Convention rights of which the lawyer was
aware) an ineffective-assistance-of-counsel claim.” Post, at 25 (opinion
of BREYER, J.). But both LaGrand and Avena indicate that the avail
ability of a claim of ineffective assistance of counsel is not an adequate
remedy for an Article 36 violation. See LaGrand Case (F. R. G. v.
U. S.), 2001 I. C. J. 466, 497, ¶91 (Judgment of June 27) (requiring
suspension of state procedural default rule even though “United States
courts could and did examine the professional competence of counsel
assigned to the indigent LaGrands by reference to United States
constitutional standards”); see also Case Concerning Avena and other
Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, ¶134 (Judg
ment of Mar. 31).
To the extent the dissent suggests that the ICJ’s decisions could be
read to prevent application of procedural default rules where a defen
dant’s attorney is unaware of Article 36, see post, at 24–25 (opinion of
BREYER, J.), this interpretation of the Convention is in sharp conflict
with the role of counsel in our system. “Attorney ignorance or inadver
tence is not ‘cause’ because the attorney is the petitioner’s agent when
acting, or failing to act, in furtherance of the litigation, and the petitioner
must ‘bear the risk of attorney error.’ ” Coleman v. Thompson, 501 U. S.
722, 753 (1991) (quoting Murray v. Carrier, 477 U. S. 478, 488 (1986)).
Under our system, an attorney’s lack of knowledge does not excuse the
defendant’s default, unless the attorney’s overall representation falls
below what is required by the Sixth Amendment. In any event, Bustillo
himself does not argue that the applicability of procedural default rules
hinges on whether a foreign national’s attorney was aware of Article 36.
See Brief for Petitioner in No. 05–51, p. 38 (“[A] lawyer may not,
consistent with the purposes of Article 36, unilaterally forfeit a foreign
national’s opportunity to communicate with his consulate”). In fact,
Bustillo has conceded that his “attorney at trial was aware of his
client’s rights under the Vienna Convention.” App. in No. 05–51,
p. 203, n. 5.
24 SANCHEZ-LLAMAS v. OREGON

Opinion of the Court

Much as Sanchez-Llamas cannot show that suppression
is an appropriate remedy for Article 36 violations under
domestic law principles, so too Bustillo cannot show that
normally applicable procedural default rules should be
suspended in light of the type of right he claims. In this
regard, a comparison of Article 36 and a suspect’s rights
under Miranda disposes of Bustillo’s claim. Bustillo con
tends that applying procedural default rules to Article 36
rights denies such rights “full effect” because the violation
itself—i.e., the failure to inform defendants of their right
to consular notification—prevents them from becoming
aware of their Article 36 rights and asserting them at
trial. Of course, precisely the same thing is true of rights
under Miranda. Police are required to advise suspects
that they have a right to remain silent and a right to an
attorney. See Miranda, 384 U. S., at 479; see also
Dickerson, 530 U. S., at 435. If police do not give such
warnings, and counsel fails to object, it is equally true that
a suspect may not be “aware he even had such rights until
well after his trial had concluded.” Brief for Petitioner in
No. 05–51, p. 35. Nevertheless, it is well established that
where a defendant fails to raise a Miranda claim at trial,
procedural default rules may bar him from raising the
claim in a subsequent postconviction proceeding. Wain
wright v. Sykes, 433 U. S. 72, 87 (1977).
Bustillo responds that an Article 36 claim more closely
resembles a claim, under Brady v. Maryland, 373 U. S. 83
(1963), that the prosecution failed to disclose exculpatory
evidence—a type of claim that often can be asserted for
the first time only in postconviction proceedings. See
United States v. Dominguez Benitez, 542 U. S. 74, 83, n. 9
(2004). The analogy is inapt. In the case of a Brady claim,
it is impossible for the defendant to know as a factual
matter that a violation has occurred before the exculpa
tory evidence is disclosed. By contrast, a defendant is well
aware of the fact that he was not informed of his Article 36
 Cite as: 548 U. S. ____ (2006) 25

Opinion of the Court

rights, even if the legal significance of that fact eludes him.
Finally, relying on Massaro v. United States, 538 U. S.
500, Bustillo argues that Article 36 claims “are most ap
propriately raised post-trial or on collateral review.” Brief
for Petitioner in No. 05–51, p. 39. Massaro held that
claims of ineffective assistance of counsel may be raised
for the first time in a proceeding under 28 U. S. C. §2255.
That decision, however, involved the question of the
proper forum for federal habeas claims. Bustillo, by con
trast, asks us to require the States to hear Vienna Conven
tion claims raised for the first time in state postconviction
proceedings. Given that the Convention itself imposes no
such requirement, we do not perceive any grounds for us
to revise state procedural rules in this fashion. See
Dickerson, supra, at 438.
We therefore conclude, as we did in Breard, that claims
under Article 36 of the Vienna Convention may be sub
jected to the same procedural default rules that apply
generally to other federal-law claims.
* * *
Although these cases involve the delicate question of the
application of an international treaty, the issues in many
ways turn on established principles of domestic law. Our
holding in no way disparages the importance of the Vienna
Convention. The relief petitioners request is, by any meas
ure, extraordinary. Sanchez-Llamas seeks a suppression
remedy for an asserted right with little if any connection to
the gathering of evidence; Bustillo requests an exception to
procedural rules that is accorded to almost no other right,
including many of our most fundamental constitutional
protections. 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 judgments of the Supreme Court of Oregon and the
Supreme Court of Virginia are affirmed.
It is so ordered.
 Cite as: 548 U. S. ____ (2006) 1

GINSBURG, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 04–10566 and 05–51
_________________

MOISES SANCHEZ-LLAMAS, PETITIONER
04–10566 v.
OREGON
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

OREGON

MARIO A. BUSTILLO, PETITIONER
05–51 v.
GENE M. JOHNSON, DIRECTOR, VIRGINIA
DEPARTMENT OF CORRECTIONS
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[June 28, 2006]

JUSTICE GINSBURG, concurring in the judgment.
I agree that Article 36 of the Vienna Convention grants
rights that may be invoked by an individual in a judicial
proceeding, and therefore join Part II of JUSTICE BREYER’s
dissenting opinion. As to the suppression and procedural
default issues, I join the Court’s judgment. The dissenting
opinion veers away from the two cases here for review,
imagining other situations unlike those at hand. In nei
ther of the cases before us would I remand for further
proceedings.
I turn first to the question whether a violation of Article
36 requires suppression of statements to police officers in
Sanchez-Llamas’ case and others like it. Shortly after his
arrest and in advance of any police interrogation, Sanchez-
Llamas received the warnings required by Miranda v.
Arizona, 384 U. S. 436 (1966), in both English and Spanish.
Tr. 122 (Nov. 16, 2000). He indicated that he understood
2 SANCHEZ-LLAMAS v. OREGON

GINSBURG, J., concurring in judgment

those warnings, id., at 123, telling the police that he had
lived in the United States for approximately 11 years, id., at
124, 143, 177. After a break in questioning, Sanchez-
Llamas again received Miranda warnings in Spanish, and
again indicated that he understood them. Id., at 129, 176.
Sanchez-Llamas, with his life experience in the United
States, scarcely resembles the uncomprehending detainee
imagined by JUSTICE BREYER, post, at 30. Such a detainee
would have little need to invoke the Vienna Convention, for
Miranda warnings a defendant is unable to comprehend
give the police no green light for interrogation. Moran v.
Burbine, 475 U. S. 412, 421 (1986) (a defendant’s waiver of
Miranda rights must be voluntary, knowing, and intelligent,
i.e., “the product of a free and deliberate choice . . . made
with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it”); United States v. Garibay, 143 F. 3d 534, 537–540 (CA9
1998) (defendant, who had difficulty understanding English,
did not knowingly and intelligently waive his Miranda
rights where the police recited the Miranda warnings only
in English); United States v. Short, 790 F. 2d 464, 469 (CA6
1986) (defendant’s limited comprehension of English cast
substantial doubt on the validity of her Miranda waiver).1
In contrast to Miranda warnings, which must be given
on the spot before the police interrogate, Article 36 of the
Vienna Convention does not require the arresting author
ity to contact the consular post instantly. See Case Con
cerning Avena and other Mexican Nationals (Mex. v.
——————
1 Before
trial, Sanchez-Llamas moved to suppress his statements to
police on voluntariness grounds. The trial court denied the motion,
finding that clear and convincing evidence established Sanchez-Llamas’
knowing, voluntary, and intelligent waiver of his Miranda rights. Tr.
232 (Nov. 16, 2000); App. to Pet. for Cert. in No. 04–10566, pp. 10–11.
Neither the Oregon Court of Appeals nor the Oregon Supreme Court
addressed Sanchez-Llamas’ voluntariness challenge, and this Court
declined to review the question.
 Cite as: 548 U. S. ____ (2006) 3

GINSBURG, J., concurring in judgment

U. S.), 2004 I. C. J. No. 128, ¶97 (Judgment of Mar. 31)
(Avena) (United States’s notification of Mexican consulate
within three working days of detainee’s arrest satisfied
Article 36(1)(b)’s “without delay” requirement); U. S. Dept.
of State, Consular Notification and Access 20,
http://travel.state.gov/pdf/CNA_book.pdf (as visited June
26, 2006, and available in Clerk of Court’s case file) (di
recting federal, state, and local law enforcement officials
to notify the appropriate consular post “within 24 hours,
and certainly within 72 hours” of a foreign national’s
request that such notification be made). Nor does that
Article demand that questioning await notice to, and a
response from, consular officials.2 It is unsurprising,
therefore, that the well researched dissenting opinion has
not found even a single case in which any court, any place
has in fact found suppression an appropriate remedy
based on no provision of domestic law, but solely on an
arresting officer’s failure to comply with Article 36 of the
Vienna Convention. See post, at 32; ante, at 9, n. 3.
The Court points out, and I agree, that in fitting circum
stances, a defendant might successfully “raise an Article
36 claim as part of a broader challenge to the voluntari
ness of [a detainee’s] statements to police.” Ante, at 15. In
that way, “full effect” could be given to Article 36 in a
——————
2 See Declaration of Ambassador Maura A. Harty, Annex 4 to

Counter-Memorial of the United States in Case Concerning Avena and
other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, pp. A385–
A386, ¶¶34–38 (Oct. 25, 2003) (observing that some Convention signa
tories do not permit consular access until after the detainee has been
questioned, and that, even in countries that permit immediate consular
access, access often does not occur until after interrogation); cf. Avena,
2004 I. C. J., ¶87 (recognizing that Article 36(1)(b)’s requirement that
authorities “ ‘inform the person concerned without delay of his rights’
cannot be interpreted to signify that the provision of such information
must necessarily precede any interrogation, so that the commencement of
interrogation before the information is given would be a breach of Article
36”).
4 SANCHEZ-LLAMAS v. OREGON

GINSBURG, J., concurring in judgment

manner consistent with U. S. rules and regulations. But
the question presented here is whether suppression is
warranted simply because the State’s authorities failed to
comply with Article 36 of the Vienna Convention. Neither
the Convention itself nor the practice of our treaty part
ners establishes Sanchez-Llamas’ entitlement to such a
remedy. See El Al Israel Airlines, Ltd. v. Tsui Yuan
Tseng, 525 U. S. 155, 175–176 (1999) (construing the
Warsaw Convention in accord with the views of the United
States’s treaty partners).
As to the procedural default issue, I note first two
anomalies. The Court explains, and I agree, that it would
be extraordinary to hold that defendants, unaware of their
Miranda rights because the police failed to convey the
required warnings, would be subject to a State’s proce
dural default rules, but defendants not told of Article 36
rights would face no such hindrance. See ante, at 24.
Furthermore, as the dissent apparently recognizes, in the
federal court system, a later-in-time statute, codifying a
federal procedural default rule, would “supersed[e] any
inconsistent provision in the Convention.” Post, at 25–26
(citing Breard v. Greene, 523 U. S. 371 (1998) (per curiam)).
In my view, it would be unseemly, to say the least, for this
Court to command state courts to relax their identical, or
even less stringent procedural default rules, while federal
courts operate without constraint in this regard. Post, at
26. That state of affairs, surely productive of friction in
our federal system, should be resisted if there is a plausi
ble choice, i.e., if a reasonable interpretation of the federal
statute and international accord would avoid the conflict.
Critical for me, Bustillo has conceded that his “attorney
at trial was aware of his client’s rights under the Vienna
Convention.” App. in No. 05–51, p. 203, n. 5. Given the
knowledge of the Vienna Convention that Bustillo’s lawyer
possessed, this case fails to meet the dissent’s (and the
International Court of Justice’s) first condition for overrid
 Cite as: 548 U. S. ____ (2006) 5

GINSBURG, J., concurring in judgment

ing a State’s ordinary procedural default rules: “[T]he
[Vienna] Convention forbids American States to apply a
procedural default rule to bar assertion of a Convention
violation claim ‘where it has been the failure of the United
States [or of a State] itself to inform that may have pre
cluded counsel from being in a position to have raised the
question of a violation of the Vienna Convention in the
initial trial.’ ” Post, at 18 (emphasis deleted) (quoting
Avena, 2004 I. C. J., ¶113); accord post, at 6, 16, 18, 23.
Nothing the State did or omitted to do here “precluded
counsel from . . . rais[ing] the question of a violation of the
Vienna Convention in the initial trial.” Ibid. Had counsel
done so, the trial court could have made “appropriate
accommodations to ensure that the defendant secure[d], to
the extent possible, the benefits of consular assistance.”
Ante, at 15.3
In short, if there are some times when a Convention
violation, standing alone, might warrant suppression, or
the displacement of a State’s ordinarily applicable proce
dural default rules, neither Sanchez-Llamas’ case nor
Bustillo’s belongs in that category.

——————
3 Furthermore, once Bustillo became aware of his Vienna Convention

rights, nothing prevented him from raising an ineffective-assistance-of
counsel claim predicated on his trial counsel’s failure to assert the
State’s violation of those rights. Through such a claim, as the dissent
acknowledges, see post, at 16, 19, 25, 29, “full effect” could have been
given to Article 36, without dishonoring state procedural rules that are
compatible with due process. Bustillo did not include a Vienna-
Convention-based, ineffective-assistance-of-counsel claim along with his
direct Vienna Convention claim in his initial habeas petition. He later
sought to amend his petition to add an ineffective-assistance-of-counsel
claim, but the court held that the amendment did not relate back to the
initial pleading. Tr. of Oral Arg. 26, 42. The state court therefore
rejected Bustillo’s ineffectiveness claim as barred by the applicable
state statute of limitations. App. 132. Bustillo did not seek review of
that decision in this Court.
6 SANCHEZ-LLAMAS v. OREGON

GINSBURG, J., concurring in judgment

* * *
For the reasons stated, I would not disturb the judg
ments of the Supreme Court of Oregon and the Supreme
Court of Virginia.
 Cite as: 548 U. S. ____ (2006) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 04–10566 and 05–51
_________________

MOISES SANCHEZ-LLAMAS, PETITIONER
04–10566 v.
OREGON
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

OREGON

MARIO A. BUSTILLO, PETITIONER
05–51 v.
GENE M. JOHNSON, DIRECTOR, VIRGINIA
DEPARTMENT OF CORRECTIONS
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[June 28, 2006]

JUSTICE BREYER, with whom JUSTICE STEVENS and
JUSTICE SOUTER join, and with whom JUSTICE GINSBURG
joins as to Part II, dissenting.
The Vienna Convention on Consular Relations provides
that when the police of a signatory nation arrest a foreign
national, the detaining “authorities shall inform” the
foreign national “without delay” of his “righ[t]” to commu
nicate with his nation’s consular officers. Vienna Conven
tion on Consular Relations (Vienna Convention or Conven
tion), Arts. 36(1)(a), (b), Apr. 24, 1963, [1970] 21 U. S. T.
77, 100–101, T. I. A. S. No. 6820. We granted certiorari in
these cases to consider three related questions: (1) May a
criminal defendant raise a claim (at trial or in a postcon
viction proceeding) that state officials violated this provi
sion? (2) May a State apply its usual procedural default
rules to Convention claims, thereby denying the defendant
the right to raise the claim in a postconviction proceeding
2 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

on the ground that the defendant failed to raise the claim
at trial? And (3) is suppression of a defendant’s confession
(made to police after a violation of the Convention) an
appropriate remedy?
The Court assumes, but does not decide, that the an
swer to the first question is “yes.” Ante, at 7–8. It an
swers the second question by holding that a State always
may apply its ordinary procedural default rules to a de
fendant’s claim of a Convention violation. Ante, at 15–25.
Its answer to the third question is that suppression is
never an appropriate remedy for a Convention violation.
Ante, at 8–15.
Unlike the majority, I would decide the first question
and answer it affirmatively. A criminal defendant may, at
trial or in a postconviction proceeding, raise the claim that
state authorities violated the Convention in his case. My
answer to the second question is that sometimes state
procedural default rules must yield to the Convention’s
insistence that domestic laws “enable full effect to be given
to the purposes for which” Article 36’s “rights . . . are
intended.” Art. 36(2), 21 U. S. T., at 101. And my answer
to the third question is that suppression may sometimes
provide an appropriate remedy. After answering these
questions, I would remand these cases, thereby permitting
the States to apply their own procedural and remedial
laws, but with the understanding that the Federal Consti
tution requires that the application of those laws be con
sistent with the Convention’s demand for an effective
remedy for an Article 36 violation. See U. S. Const., Art.
VI, cl. 2 (“[A]ll Treaties made . . . under the Authority of
the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby”).
I
A
The Vienna Convention is an international treaty that
 Cite as: 548 U. S. ____ (2006) 3

BREYER, J., dissenting

governs relations between individual nations and foreign
consular officials. The United States and 169 other na
tions have ratified the Convention. Its adoption in 1963
was perhaps “the single most important event in the
entire history of the consular institution.” L. Lee, Consu
lar Law and Practice 26 (2d ed. 1991). The Convention
defines consular functions to include “protecting in the
receiving State the interests of the sending State and of its
nationals,” and “helping and assisting nationals . . . of the
sending State.” Arts. 5(a), (e), 21 U. S. T., at 82–83. The
United States ratified the Convention in 1969.
Article 36 of the Convention governs relations between a
consulate and its nationals, particularly those who have
been arrested by the host country. Its object is to assure
consular communication and assistance to such nationals,
who may not fully understand the host country’s legal
regime or even speak its language. Article 36 reads as
follows:
“1. With a view to facilitating the exercise of consular
functions relating to nationals of the sending State:
“(a) consular officers shall be free to communicate
with nationals of the sending State and to have access
to them. Nationals of the sending State shall have the
same freedom with respect to communication with
and access to consular officers of the sending State;
“(b) if he so requests, the competent authorities of
the receiving State shall, without delay, inform the
consular post of the sending State if, within its consu
lar district, a national of that State is arrested or
committed to prison or to custody pending trial or is
detained in any other manner. Any communication
addressed to the consular post by the person arrested,
in prison, custody or detention shall also be forwarded
by the said authorities without delay. The said au
thorities shall inform the person concerned without de
4 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

lay of his rights under this sub-paragraph;
. . . . .
“2. The rights referred to in paragraph 1 of this Arti
cle shall be exercised in conformity with the laws and
regulations of the receiving State, subject to the pro
viso, however, that the said laws and regulations
must enable full effect to be given to the purposes for
which the rights accorded under this Article are in
tended.” 21 U. S. T., at 100–101 (emphasis added).
The U. S. State Department’s Foreign Affairs Manual has
long stressed the importance the United States places
upon these provisions. It says, “[O]ne of the basic func
tions of a consular office has been to provide a ‘cultural
bridge’ between the host community and the [U. S. na
tional]. No one needs that cultural bridge more than the
individual U. S. citizen who has been arrested in a foreign
country or imprisoned in a foreign jail.” 7 Foreign Affairs
Manual §401 (1984); see also id., §§401–426 (2004).
B
In 1969, the United States also ratified (but the Presi
dent has since withdrawn from) an Optional Protocol to
the Convention. See Optional Protocol Concerning the
Compulsory Settlement of Disputes (Optional Protocol),
Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820;
Letter from Condoleezza Rice, Secretary of State, to Kofi
A. Annan, Secretary-General of the United Nations (Mar.
7, 2005) (giving notice of United States’ withdrawal from
the Optional Protocol). The Optional Protocol provides
that “[d]isputes arising out of the interpretation or appli
cation of the Convention shall lie within the compulsory
jurisdiction of the International Court of Justice [ICJ].” 21
U. S. T., at 326.
Acting pursuant to the Optional Protocol, Germany (in
1999) and Mexico (in 2003) brought proceedings before the
ICJ, seeking redress for what they said were violations of
 Cite as: 548 U. S. ____ (2006) 5

BREYER, J., dissenting

Article 36 by the United States. LaGrand Case (F. R. G. v.
U. S.), 2001 I. C. J. 466 (Judgment of June 27) (LaGrand)
(case brought by Germany); Case Concerning Avena and
other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No.
128 (Judgment of Mar. 31) (Avena) (case brought by
Mexico).
In Germany’s case, the ICJ rejected the United States’
claim that the “rights of consular notification and access
under [Article 36] are rights of States, and not of individu
als.” LaGrand, 2001 I. C. J., at 19–20, ¶76. It held in
stead that (1) if an arrested foreign national is prejudiced
by the host country’s failure to inform him of his Article 36
rights, and (2) if that individual has “been subjected to
prolonged detention or convicted and sentenced to severe
penalties,” then a diplomatic apology alone is not a suffi
cient remedy. Id., at 32–33, ¶125. Rather, the Convention
requires the host country, in that case the United States,
“to allow the review and reconsideration of the” foreign
national’s “conviction and sentence by taking account of
the violation of the rights set forth in the Convention.”
Ibid. The ICJ added that “[t]he choice of means” for pro
viding this review “must be left to the United States.”
Ibid. In addition, the ICJ stated that in the case before it,
application of a procedural default rule (that is, the rule
that the LaGrands could not bring their Convention
claims in habeas proceedings because they had not raised
those claims at trial) violated Article 36(2) of the Conven
tion because it “had the effect of preventing ‘full effect
[from being] given to the purposes for which the rights
accorded under this article are intended.’ ” Id., at 22, ¶91
(quoting Art. 36(2), 21 U. S. T., at 101). In the ICJ’s view,
it was “the failure of the American authorities to comply”
with Article 36 that prevented the LaGrands from raising
their claims earlier. LaGrand, supra, at 22, ¶91.
In Mexico’s case, the ICJ reiterated its view that Article
36, in addition to imposing obligations on member nations,
6 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

also allows foreign nationals to bring claims based on
those violations in domestic judicial proceedings. The ICJ
noted that, as a matter of international law, breach of a
treaty ordinarily “ ‘involves an obligation to make repara
tion in an adequate form.’ ” Avena, supra, ¶119 (quoting
Factory at Chorzów, Jurisdiction, 1927, P. C. I. J., ser. A,
No. 9, p. 21). Applying that principle to the Convention,
the ICJ concluded that “the remedy to make good . . .
violations [of Article 36] should consist in an obligation on
the United States to permit review and reconsideration of
these nationals’ cases by the United States courts . . . with
a view to ascertaining whether in each case the violation
. . . caused actual prejudice to the defendant in the process
of administration of criminal justice.” Avena, 2004 I. C. J.,
¶121 (emphasis added). The court added that this “review
and reconsideration,” to be “effective,” must “fully ex
amin[e] and tak[e] into account” any such prejudice to the
defendant. Id., ¶138. The ICJ declined to specify the
means by which American courts should provide such
“review and reconsideration.” Instead, the ICJ said, the
appropriate remedy depends upon an examination of “the
concrete circumstances of each case” and should be deter
mined “by the United States courts concerned in the proc
ess of their review and reconsideration.” Id., ¶127.
In respect to procedural default, the ICJ referenced
what it said in LaGrand, while adding the critically im
portant qualification that the cases in which the Conven
tion blocked application of a procedural default rule were
those in which it was “the failure of the United States
itself to inform” an arrested foreign national of his right to
contact the consulate that “precluded counsel from being
in a position to have raised the question of a violation of
the Vienna Convention in the initial trial.” Avena, supra,
¶113.
 Cite as: 548 U. S. ____ (2006)
7

BREYER, J., dissenting

C

For present purposes, the key sections of the Convention
are (1) the provision that requires the United States to
“inform” an arrested person “without delay” of his Article
36 rights, including the right to “communicat[e]” with his
“consular post,” and (2) the provision that says domestic
laws and regulations “must enable full effect to be given”
to the purposes underlying those requirements.
The key ICJ holdings are its determinations (1) that the
Convention obligates a member nation to inform an ar
rested foreign national without delay that he may contact
his consulate; (2) that the Convention requires the United
States to provide some process for its courts to “review and
reconside[r]” criminal convictions where there has been a
prejudicial violation of this obligation; and (3) that this
“review and reconsideration” cannot be foreclosed on the
ground that the foreign national did not raise the violation
at trial where the authorities’ failure to inform the foreign
national of his rights prevented him from timely raising
his claim.
II
The first question presented is whether a criminal de
fendant may raise a claim (at trial or in a postconviction
proceeding) that state officials violated Article 36 of the
Convention. The Court assumes that the answer to this
question is “yes,” but it does not decide the matter because
it concludes in any event that the petitioners are not
entitled to the remedies they seek. As explained below, I
would resolve those remedial questions differently.
Hence, I must decide, rather than assume, the answer to
the first question presented.
Regardless, the first question raises an important issue
of federal law that has arisen hundreds of times in the
lower federal and state courts. See generally Wooster,
Construction and Application of Vienna Convention on
8 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

Consular Relations (VCCR), Requiring That Foreign Con
sulate Be Notified When One of Its Nationals Is Arrested,
175 A. L. R. Fed. 243 (2002) (collecting federal cases).
Those courts have divided as to the proper answer. Com
pare Cardenas v. Dretke, 405 F. 3d 244 (CA5 2005) (defen
dant cannot bring Convention claim in judicial proceed
ing); United States v. Emuegbunam, 268 F. 3d 377 (CA6
2001) (same); State v. Martinez-Rodriguez, 2001–NMSC–
029, 33 P. 3d 267 (2001) (same); 338 Ore. 267, 108 P. 3d
573 (2005) (same); Shackleford v. Commonwealth, 262 Va.
196, 547 S. E. 2d 899 (2001) (same), with Jogi v. Voges,
425 F. 3d 367 (CA7 2005) (defendant can bring Convention
claim in judicial proceeding). And the issue often arises in
a legal context where statutes or procedural requirements
arguably block this Court’s speedy review. See Medellín v.
Dretke, 544 U. S. 660 (2005) (per curiam). We granted the
petitions for certiorari in significant part in order to decide
this question. And, given its importance, we should do so.
In answering the question it is common ground that the
Convention is “self-executi[ng].” See S. Exec. Rep. No. 91–
9, p. 5 (1969); see also Brief for Respondent in No. 04–
10566, pp. 9–10; Brief for Respondent in No. 05–51, p. 23.
That is to say, the Convention “operates of itself without
the aid of any legislative provision.” Foster v. Neilson, 2
Pet. 253, 314 (1829). The parties also agree that we need
not decide whether the Convention creates a “private right
of action,” i.e., a private right that would allow an individ
ual to bring a lawsuit for enforcement of the Convention or
for damages based on its violation. Rather, the question
here is whether the Convention provides, in these cases,
law applicable in legal proceedings that might have been
brought irrespective of the Vienna Convention claim, here
an ordinary criminal appeal and an ordinary postconvic
tion proceeding.
Bustillo, for example, has brought an action under a
Virginia statute that allows any convicted person to seek
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BREYER, J., dissenting

release from custody on the ground that “he is detained
without lawful authority.” Va. Code Ann. §8.01–654(A)(1)
(Lexis 2005). Sanchez-Llamas has challenged his state
criminal conviction on direct appeal, and in that proceed
ing he is entitled to claim that his conviction violates state
or federal law. In both cases the petitioners argue that a
court decision favoring the prosecution would violate the
Convention (as properly interpreted), and therefore the
Constitution forbids any such decision. See U. S. Const.,
Art. VI, cl. 2. This argument in effect claims that the
Convention itself provides applicable law that here would
favor the petitioners if, but only if, they are correct as to
their interpretation of the Convention (which is, of course,
a different matter).
The petitioners must be right in respect to their claim
that the Convention provides law that here courts could
apply in their respective proceedings. The Convention is a
treaty. And “all Treaties made . . . under the Authority of
the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby.”
U. S. Const., Art. VI, cl. 2. As Chief Justice Marshall long
ago explained, under the Supremacy Clause a treaty is “to
be regarded in courts of justice as equivalent to an act of
the legislature, whenever it operates of itself without the
aid of any legislative provision.” Foster, supra, at 314.
Directly to the point, this Court stated long ago that a
treaty “is a law of the land as an act of Congress is, when
ever its provisions prescribe a rule by which the rights of
the private citizen or subject may be determined. And
when such rights are of a nature to be enforced in a court
of justice,” in such a case the court is to “resor[t] to the
treaty for a rule of decision for the case before it as it
would to a statute.” Head Money Cases, 112 U. S. 580,
598–599 (1884).
As noted above, see supra, at 8, the parties agree that
the Convention “operates of itself without the aid of any
10 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

legislative provision.” Foster, supra, at 314. The question,
then, is the one this Court set forth in the Head Money
Cases: Does the Convention set forth a “law” with the legal
stature of an Act of Congress? And as the Court ex
plained, we are to answer that question by asking, does
the Convention “prescribe a rule by which the rights of the
private citizen . . . may be determined”? Are the obliga
tions set forth in Article 36(1)(b) “of a nature to be en
forced in a court of justice”?
The “nature” of the Convention provisions raised by the
petitioners indicates that they are intended to set forth
standards that are judicially enforceable. Those provi
sions consist of the rights of a foreign national “arrested”
or “detained in any other manner” (1) to have, on his
“reques[t],” the “consular post” “inform[ed]” of that arrest
or detention; (2) to have forwarded “without delay” any
“communication addressed to the consular post”; and (3) to
be “inform[ed] . . . without delay” of those two “rights.”
Art. 36(1)(b), 21 U. S. T., at 101. These rights do not differ
in their “nature” from other procedural rights that courts
commonly enforce. Cf. U. S. Const., Amdt. 6 (“In all crimi
nal prosecutions, the accused shall enjoy the right . . . to
be informed of the nature and cause of the accusation”);
ibid. (“In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his
defence”); Miranda v. Arizona, 384 U. S. 436 (1966).
Moreover, the language of Article 36 speaks directly of
the “rights” of the individual foreign national. See Art.
36(1)(b), 21 U. S. T., at 101 (“The said authorities shall
inform the person concerned without delay of his rights
under this sub-paragraph” (emphasis added)). Article 36
thus stands in stark contrast to other provisions of the
Convention, which speak in terms of the rights of the
member nations or consular officials. Cf. Art. 9, id., at 86
(discussing “the right of any of the Contracting Parties to
fix the designation of consular officers” (emphasis added));
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BREYER, J., dissenting

Art. 34, id., at 98 (consular officials shall have “freedom of
movement and travel”); Art. 35, id., at 99 (consular offi
cials shall have “freedom of communication”); Art. 41(1),
id., at 103 (“Consular officers shall not be liable to arrest
or detention pending trial”).
Suppose that a pre-Miranda federal statute had said
that arresting authorities “shall inform a detained person
without delay of his right to counsel.” Would courts not
have automatically assumed that this statute created
applicable law that a criminal defendant could invoke at
trial? What more would the statute have to say? See
Medellín, 544 U. S., at 687 (O’Connor, J., dissenting) (“And
if a statute were to provide, for example, that arresting
authorities ‘shall inform a detained person without delay
of his right to counsel,’ ” what “more would be required” to
permit “a defendant” to “invoke that statute”?).
Further, this Court has routinely permitted individuals
to enforce treaty provisions similar to Article 36 in domes
tic judicial proceedings. In United States v. Rauscher, 119
U. S. 407, 410–411 (1886), for example, this Court con
cluded that the defendant could raise as a defense in his
federal criminal trial the violation of an extradition treaty
that said, “ ‘It is agreed that the United States and Her
Britannic Majesty shall, upon mutual requisitions by them
. . . deliver up to justice all persons’ ” charged with certain
crimes in the other country. Similarly, in Kolovrat v.
Oregon, 366 U. S. 187, 191, n. 6 (1961), the Court held that
foreign nationals could challenge a state law limiting their
right to recover an inheritance based on a treaty providing
that “ ‘[i]n all that concerns the right of acquiring, possess
ing or disposing of every kind of property . . . citizens of
[each country who reside in the other] shall enjoy the
rights which the respective laws grant . . . in each of these
states to the subjects of the most favored nation.’ ” And in
Asakura v. Seattle, 265 U. S. 332, 340 (1924), the Court
allowed a foreign national to challenge a city ordinance
12 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

forbidding noncitizens from working as pawnbrokers
under a treaty stating that “ ‘citizens or subjects of each of
the High Contracting Parties shall have liberty . . . to
carry on trade’ ” and “ ‘generally to do anything incident to
or necessary for trade upon the same terms as native
citizens or subjects.’ ”
In all these cases, the Court recognized that (1) a treaty
obligated the United States to treat foreign nationals in a
certain manner; (2) the obligation had been breached by
the Government’s conduct; and (3) the foreign national
could therefore seek redress for that breach in a judicial
proceeding, even though the treaty did not specifically
mention judicial enforcement of its guarantees or even
expressly state that its provisions were intended to confer
rights on the foreign national. Language and context
argue yet more strongly here in favor of permitting a
criminal defendant in an appropriate case to find in the
Convention a law to apply in the proceeding against him.
In addition, the Government concedes that individual
consular officials may enforce other provisions of the Con
vention in American courts. For example, Article 43(1)
grants consular officials immunity from “the jurisdiction of
the” host country’s “judicial or administrative authorities”
for “acts performed in the exercise of consular functions.”
21 U. S. T., at 104. The federal courts have held that a
consular official may raise Article 43(1) in a judicial pro
ceeding, even though that provision does not expressly
mention a judicial remedy. See, e.g., Risk v. Halvorsen,
936 F. 2d 393, 397 (CA9 1991); Gerritsen v. de la Madrid
Hurtado, 819 F. 2d 1511, 1515–1516 (CA9 1987); see also
Brief for United States as Amicus Curiae 14, n. 2 (citing
with approval these cases). What in Article 36 warrants
treating it differently in this respect?
Finally, the international tribunal that the United
States agreed would resolve disputes about the interpreta
tion of the Convention, the ICJ, has twice ruled that an
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BREYER, J., dissenting

arrested foreign national may raise a violation of the
arresting authorities’ obligation to “inform [him] without
delay of his rights under” Article 36(1) in an American
judicial proceeding. See Avena, 2004 I. C. J. No. 128;
LaGrand, 2001 I. C. J. 466. That conclusion, as an “inter
pretation of an international agreement by an interna
tional court” deserves our “ ‘respectful consideration.’ ”
Ante, at 21. That “respectful consideration,” for reasons I
shall explain, see infra, at 18–21, counsels in favor of an
interpretation that is consistent with the ICJ’s reading of
the Convention here.
The Government says to the contrary that Article 36 is
“addressed solely to the rights of States and not private
individuals”; hence, a foreign national may not claim in an
American court that a State has convicted him without the
consular notification that Article 36 requires. Brief for
United States as Amicus Curiae 7. But its arguments are
not persuasive. The Government rests this conclusion
primarily upon its claim that there is a “long-established
presumption that treaties and other international agree
ments do not create judicially enforceable individual
rights.” Id., at 11.
The problem with that argument is that no such pre
sumption exists. The Government cites three cases in
support of its position, Charlton v. Kelly, 229 U. S. 447,
474 (1913); Whitney v. Robertson, 124 U. S. 190, 195
(1888); and Foster, 2 Pet., at 306–307. The first of these,
Charlton, says that the question whether a treaty has
been abrogated by another nation’s violations is a matter
with which “ ‘judicial tribunals have nothing to do.’ ” 229
U. S., at 474. The second, Whitney, says that whether a
subsequent federal statute that abrogates a treaty violates
the United States’ treaty obligations is a matter that has
“not been confided to the judiciary.” 124 U. S., at 195.
The third, Foster, says that in “a controversy between two
nations concerning national boundary, it is scarcely possi
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BREYER, J., dissenting

ble that the courts of either should refuse to abide by the
measures adopted by its own government.” 2 Pet., at 307.
What have these issues to do with the present one? How
do these cases support the presumption that the Govern
ment claims?
Regardless, as I have just said, see supra, at 9, the Head
Money Cases make clear that a treaty may confer certain
enforceable “rights upon the citizens or subjects of one of
the nations residing in the territorial limits of the other.”
112 U. S., at 598; see also 2 Restatement (Third) on For
eign Relations Law of the United States §907 (1986) (here
inafter Restatement) (“A private person having rights
against the United States under an international agree
ment may assert those rights in courts in the United
States”). And the language of the Convention makes clear
that it is such a treaty. Indeed, to my knowledge no other
nation’s courts (or perhaps no more than one) have held to
the contrary. The cases cited by the respondents and the
Government do not say otherwise. See Judgment of Nov.
7, 2001, 5 BGHSt 116 (Germany) (deciding in light of
LaGrand that the Convention creates individual rights,
but declining to suppress confession); Queen v. Abbrederis
(1981) 51 F. L. R. 99, 115 (Ct. Crim. App. New South
Wales (Australia)) (deciding that Convention does not
“affect the carrying out of an investigation by interroga
tion of a foreign person coming to this country”). But see
Queen v. Van Bergen [2000] 261 A. R. 387, 390 (Ct. App.
Alberta (Canada)) (noting in dictum that the Convention
“creates an obligation between states and is not one owed
to the national,” but affirming denial of suppression mo
tion on the ground that “there was in any event no proven
prejudice to” the defendant). See also Queen v. Partak,
[2001] 160 C. C. C. 3d 553 (Ont. Super. Ct. of J.) (applying
Van Bergen’s “serious prejudice” test to conclude that
defendant’s statements were admissible); compare cases
cited infra, at 31–32.
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BREYER, J., dissenting

The Government also points out that the Executive
Branch’s interpretation of treaty provisions is entitled to
“great weight.” Sumitomo Shoji America, Inc. v. Avagli
ano, 457 U. S. 176, 184–185 (1982). I agree with this
presumption. But the Executive’s views on our treaty
obligations are “not conclusive.” Ibid.; see Perkins v. Elg,
307 U. S. 325, 328, 337–342 (1939) (declining to adopt
Executive’s treaty interpretation); Johnson v. Browne, 205
U. S. 309, 319–321 (1907) (same); De Lima v. Bidwell, 182
U. S. 1, 181, 194–199 (1901) (same). Where language, the
nature of the right, and the ICJ’s interpretation of the
treaty taken separately or together so strongly point to an
intent to confer enforceable rights upon an individual, I
cannot find in the simple fact of the Executive Branch’s
contrary view sufficient reason to adopt the Government’s
interpretation of the Convention.
Accordingly, I would allow the petitioners to raise their
claims based on violations of the Convention in their
respective state-court proceedings.
III
The more difficult issue, I believe, concerns the nature
of the Convention’s requirements as to remedy. In par
ticular, Bustillo’s case concerns a state procedural default
rule. When, if ever, does the Convention require a state
court to set aside such a rule in order to hear a criminal
defendant’s claim that the police did not “inform” him of
his “right” to communicate with his “consular post”? Art.
36(1)(b), 21 U. S. T., at 101. The Court says that the
answer is “never.” See ante, at 15–25. In its view, the
Convention does not under any circumstances trump a
State’s ordinary procedural rules requiring a defendant to
assert his claims at trial or lose them forever.
In my view, Article 36 of the Convention requires a less
absolute answer. Article 36 says that the rights it sets
forth “shall be exercised in conformity with the laws and
16 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

regulations of the receiving State,” but it instantly adds,
“subject to the proviso . . . that the said laws and regula
tions must enable full effect to be given to the purposes for
which the [Article 36] rights are . . . intended.” Art. 36(2),
21 U. S. T., at 101 (emphasis added). The proviso means
that a State’s ordinary procedural default rules apply
unless (1) the defendant’s failure to raise a Convention
matter (e.g., that police failed to inform him of his Article
36 rights) can itself be traced to the failure of the police (or
other governmental authorities) to inform the defendant of
those Convention rights, and (2) state law does not pro
vide any other effective way for the defendant to raise that
issue (say, through a claim of ineffective assistance of
counsel).
Several considerations lead to this conclusion. First, as
I have just noted, Article 36 says both that its rights “shall
be exercised in conformity with” the host country’s “laws
and regulations” and that those “laws and regulations
must enable full effect to be given” to the purposes for
which those rights “are intended.” This interpretation
makes both the “conformity” requirement and the “full
effect” requirement meaningful.
Second, the Convention’s drafting history supports this
interpretation. The first draft of the Vienna Convention
was written by the International Law Commission. Arti
cle 36(2) of that draft required only that domestic laws
“not nullify” the rights afforded by the Convention. Draft
Articles on Consular Relations Adopted by the Interna
tional Law Commission at its Thirteenth Session, Art.
36(2), reprinted in L. Lee, Vienna Convention on Consular
Relations 237 (1966). A later amendment substituted the
“full effect” phrase over the strenuous objection of several
negotiating countries whose delegates argued that the
phrase would “modify the criminal law and regulations or
the criminal procedure of the receiving state.” 1 United
Nations Conference on Consular Relations, Official Re
 Cite as: 548 U. S. ____ (2006) 17

BREYER, J., dissenting

cords, Summary records of plenary meetings and of the
meetings of the First and Second Committees, U. N. Doc.
A/CONF.25/16, ¶26, p. 38 (1963) (statement of Romania).
See also id., at ¶30, p. 38–39 (statement of Congo, Leo
poldville) (amendment “implied the revision of certain
laws or regulations, which it would be difficult to carry out
in practice”); id., 12th mtg., ¶4, at 40 (statement of Union
of Soviet Socialist Republics) (rejecting the amendment
because it would “force [signatories] to alter their criminal
laws and regulations”); id., 20th mtg., ¶81, at 84 (state
ment of Romania) (same); id., ¶95, at 86 (statement of
Czechoslovakia) (same).
Based on this objection, the Soviet Union proposed
reverting to the original language. The United Kingdom
opposed that measure, explaining that it supported the
“full effect” version because the initial (“not nullify”)
version
“meant that the laws and regulations of the receiving
State would govern the rights specified . . . provided
that they did not render those rights completely inop
erative—for ‘to nullify’ meant to ‘render completely
inoperative.’ But rights could be seriously impaired
without becoming completely inoperative. . . . Consu
lar officials should, of course, comply with the laws
and regulations of the receiving State in such matters
as the times for visiting prisoners, but it was most
important that the substance of the rights and obliga
tions specified . . . should be preserved.” Id., ¶¶6–7, at
40.
No one disagreed with the United Kingdom’s understand
ing of the words “full effect.” And with that understand
ing, the delegates voted down the Soviet Union’s proposal
to revert to the original language, and ultimately adopted
the provision with the words “full effect.” Id., ¶109, at 87.
As so enacted, the provision reflects the “essential princi
18 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

ple of international law . . . ‘that reparation must, as far as
possible, wipe out all the consequences of the illegal act
and reestablish the situation which would, in all probabil
ity, have existed if that act had not been committed.’ ” 2
Restatement §901, at 343.
Third, the decisions of the ICJ, fairly read, interpret the
Convention similarly. In LaGrand and Avena, the ICJ
read the Convention as authorizing an individual foreign
national to raise an Article 36 violation at trial or in a
postconviction proceeding. See Avena, 2004 I. C. J., ¶121;
LaGrand, 2001 I. C. J., at 32–33, ¶125. The ICJ added
that the Convention requires member states to provide
“effective” remedies in their courts for Convention viola
tions. See Avena, supra, ¶138. And the ICJ made two
critical statements in respect to procedural default rules.
In LaGrand, the court said that in “itself, the [procedural
default] rule does not violate Article 36 of the Vienna
Convention.” 2001 I. C. J., at 22, ¶90 (emphasis added).
Rather, the “problem arises when the procedural default
rule does not allow the detained individual to challenge a
conviction and sentence by claiming . . . that the compe
tent national authorities failed to comply with their obli
gation to provide the requisite consular information ‘with
out delay.’ ” Ibid. And the ICJ later specified that the
Convention forbids American States to apply a procedural
default rule to bar assertion of a Convention violation
claim “where it has been the failure of the United States [or
of a State] itself to inform that may have precluded counsel
from being in a position to have raised the question of a
violation of the Vienna Convention in the initial trial.”
Avena, 2004 I. C. J., ¶113 (emphasis added).
This last statement indicates that the ICJ understood
the Convention to prevent application of a procedural
default rule only where the arresting authorities’ failure to
inform the foreign national of his Convention rights
brought about the procedural default in the first place.
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BREYER, J., dissenting

Taken together, the above statements make clear that the
ICJ read the Convention simply to require an effective
remedy. It stated repeatedly that it did not dictate what
that remedy would be, as long it was offered as part of the
“judicial process.” Id., ¶140–141. Hence, if the State
provides some other effective remedy, for example, review
for prejudice through a claim of ineffective assistance of
counsel, then the Convention would not forbid application
of ordinary procedural default rules. See ABA Guidelines
for the Appointment and Performance of Defense Counsel
in Death Penalty Cases 10.6 (Rev. ed. 2003) (discussing
defense counsel’s obligation to seek consular assistance);
Valdez v. Oklahoma, 46 P. 3d 703, 710 (Okla. Crim. App.
2002) (granting postconviction relief to a defendant who
had failed to raise a Vienna Convention violation at trial,
because he showed that his lawyer “could have obtained
financial, legal and investigative assistance from his
consulate” that would have produced important new evi
dence); see also Ledezma v. State, 626 N. W. 2d 134, 152
(Iowa 2001) (concluding that “all criminal defense attor
neys representing foreign nationals should be aware of the
right to consular access as provided by Article 36, and
should advise their clients of this right” because local
counsel “are not equipped to provide the same services as
the local consulate”); cf. Rompilla v. Beard, 545 U. S. 374
(2005).
I will assume that the ICJ’s interpretation does not bind
this Court in this case. Statute of the International Court
of Justice, Art. 59, 59 Stat. 1062, T. S. No. 993 (1945) (ICJ
decisions have “binding force” only “between the parties
and in respect of that particular case”). But as the major
ity points out, the ICJ’s decisions on this issue nonetheless
warrant our “ ‘respectful consideration.’ ” Ante, at 21.
That “respectful consideration” reflects the understanding
that uniformity is an important goal of treaty interpreta
tion. See Olympic Airways v. Husain, 540 U. S. 644, 660
20 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

(2004) (SCALIA, J., dissenting) (“[I]t is reasonable to im
pute to the parties an intent that their respective courts
strive to interpret the treaty consistently”). And the ICJ’s
position as an international court specifically charged with
the duty to interpret numerous international treaties
(including the Convention) provides a natural point of
reference for national courts seeking that uniformity. See
Counter-Memorial of the United States in Avena, 2004
I. C. J. No. 128, p. 61, n. 128 (Nov. 3, 2003) (even if ICJ
decision binds only in particular case, “it is well-settled”
that an ICJ decision “may serve as authority beyond a
particular case”; citing authorities); Ordonez & Reilly,
Effect of the Jurisprudence of the International Court of
Justice on National Courts, in International Law Deci
sions in National Courts 335, 365 (T. Franck & G. Fox eds.
1996) (noting that ICJ cases interpreting treaties “are
routinely cited by domestic judges” in many countries “as
evidence of international law”).
That “respectful consideration” also reflects an under
standing of the ICJ’s expertise in matters of treaty inter
pretation, a branch of international law. The ICJ’s opin
ions “are persuasive evidence” of what “[international] law
is.” 1 Restatement §103, comment b, at 37; see also Mor
rison, Treaties as a Source of Jurisdiction, Especially in
U. S. Practice, in The International Court of Justice at a
Crossroads 58, 61 (L. Damrosch ed. 1987); The Paquete
Habana, 175 U. S. 677, 700 (1900) (“[T]rustworthy evi
dence of what [international] law really is” can be found in
“the works of jurists and commentators, who by years of
labor, research and experience have made themselves
peculiarly well acquainted with the subjects of which they
treat”); L. Henkin, R. Pugh, O. Schachter, & H. Smit,
International Law: Cases and Materials 120 (3d ed. 1993)
(“[T]he decisions of the International Court of Justice are,
on the whole, regarded by international lawyers as highly
persuasive authority of existing international law”).
 Cite as: 548 U. S. ____ (2006) 21

BREYER, J., dissenting

Thus, this Court has repeatedly looked to the ICJ for
guidance in interpreting treaties and in other matters of
international law. See, e.g., United States v. Maine, 475
U. S. 89, 99–100 (1986) (referring to the Fisheries Case
(United Kingdom v. Norway), 1951 I. C. J. 116, as legal
authority in a maritime boundary dispute); United States
v. Louisiana, 470 U. S. 93, 107 (1985) (same); United
States v. Louisiana, 394 U. S. 11, 69–72 (1969) (same);
First Nat. City Bank v. Banco Para el Comercio Exterior de
Cuba, 462 U. S. 611, 628, and n. 20 (1983) (citing Case
Concerning The Barcelona Traction, Light & Power Co.,
1970 I. C. J. 3, for the proposition that an incorporated
entity “is not to be regarded as legally separate from its
owners in all circumstances”); United States v. California,
381 U. S. 139, 172 (1965) (citing the Corfu Channel Case,
1949 I. C. J. Rep. 4, in boundary dispute); Reid v. Covert,
354 U. S. 1, 61 (1957) (plurality opinion) (citing France v.
United States, 1952 I. C. J. Rep. 176, as authority for the
meaning of the word “ ‘disputes’ ” in international treaties).
The lower courts have done the same. See, e.g., McKes
son Corp. v. Islamic Republic of Iran, 52 F. 3d 346, 352
(CADC 1995); Princz v. Federal Rupublic of Germany, 26
F. 3d 1166, 1180, 1184 (CADC 1994) (Wald, J., dissenting);
Siderman de Blake v. Republic of Argentina, 965 F. 2d
699, 715 (CA9 1992); Committee of United States Citizens
Living in Nicaragua v. Reagan, 859 F. 2d 929, 932, 935
(CADC 1988); Arcoren v. Peters, 811 F. 2d 392, 397, n. 11
(CA8 1987); Conservation Law Foundation of New Eng
land v. Secretary of Interior, 790 F. 2d 965, 967 (CA1
1986); Persinger v. Islamic Republic of Iran, 729 F. 2d 835,
837, 843 (CADC 1984); McKeel v. Islamic Republic of Iran,
722 F. 2d 582, 585 (CA9 1983); Cruz v. Zapata Ocean
Resources, Inc., 695 F. 2d 428, 433, and nn. 8–9 (CA9
1982); Spiess v. C. Itoh & Co. (America), 643 F. 2d 353,
365 (CA5 1981) (Reavley, J., dissenting); Agee v. Muskie,
629 F. 2d 80, 90 (CADC 1980) (MacKinnon, J., dissenting);
22 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

Sadat v. Mertes, 615 F. 2d 1176, 1188, n. 14 (CA7 1980);
Narenji v. Civiletti, 617 F. 2d 745, 748 (CADC 1979);
United States v. Postal, 589 F. 2d 862, 869 (CA5 1979);
McComish v. Commissioner, 580 F. 2d 1323, 1329 (CA9
1978); Diggs v. Richardson, 555 F. 2d 848, 849 (CADC
1976); Island Airlines, Inc. v. CAB, 352 F. 2d 735, 741
(CA9 1965); Rogers v. Societe Internationale Pour Partici
pations Industrielles et Commerciales, S. A., 278 F. 2d 268,
273, n. 3 (CADC 1960) (Fahy, J., dissenting); Greenpeace,
Inc. v. France, 946 F. Supp. 773, 783 (CD Cal. 1996);
Looper v. Morgan, Civ. No. H–92–0294, 1995 WL 499816,
*1 (SD Tex., June 23, 1995); Koru North America v. United
States, 701 F. Supp. 229, 232 (CIT 1988); United States v.
Central Corp. of Ill., No. 87 C 5072, 1987 WL 20129 (ND
Ill. Nov. 13, 1987); United States v. Palestine Liberation
Organization, 695 F. Supp. 1456, 1461–1462, 1467 (SDNY
1988); Morgan Guaranty Trust Company of N. Y. v. Re
public of Palau, 639 F. Supp. 706, 715 (SDNY 1986); Mas
sachusetts v. Clark, 594 F. Supp. 1373, 1387–1388, n. 8
(Mass. 1984); United States-South West Africa/Namibia
Trade & Cultural Council v. Department of State, 90
F. R. D. 695, 696, n. 2 (DC 1981); Zenith Radio Corp. v.
Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1187 (ED
Pa. 1980); Rodriguez Fernandez v. Wilkinson, 505 F. Supp.
787, 797 (Kan. 1980); In re Alien Children Ed. Litigation,
501 F. Supp. 544, 591 (SD Tex. 1980); American Int’l
Group, Inc. v. Islamic Republic of Iran, 493 F. Supp. 522,
525 (DC 1980); National Airmotive v. Government and
State of Iran, 491 F. Supp. 555, 556 (DC 1980); CAB v.
Island Airlines, Inc., 235 F. Supp. 990, 1003–1004, and nn.
23–24, 1005, and n. 27 (Haw. 1964); United States v.
Melekh, 190 F. Supp. 67, 81, 89 (SDNY 1960); Balfour,
Guthrie & Co. v. United States, 90 F. Supp. 831, 834, n. 1
(ND Cal. 1950).
Today’s decision interprets an international treaty in a
manner that conflicts not only with the treaty’s language
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BREYER, J., dissenting

and history, but also with the ICJ’s interpretation of the
same treaty provision. In creating this last-mentioned
conflict, as far as I can tell, the Court’s decision is un
precedented.
The Court supports its interpretation in three basic
ways. First, the majority says that “respectful considera
tion” does not require us to agree with a decision that is
clearly wrong. And, it says, the ICJ’s decision is clearly
wrong. The ICJ’s interpretation of Article 36, the major
ity says, would permit a Convention violation claim to
“trump not only procedural default rules, but any number
of other rules requiring parties to present their legal
claims at the appropriate time for adjudication.” Ante, at
22. That interpretation, it adds, “overlooks the impor
tance of procedural default rules in an adversary system,”
and is “inconsistent with the basic framework” of that
“system.” Ante, at 21–22.
The majority’s argument, however, overlooks what the
ICJ actually said, overstates what it actually meant, and
is inconsistent with what it actually did. In Avena and
LaGrand, the ICJ did not say that the Convention neces
sarily trumps any, let alone all, procedural rules that
would otherwise bar assertion of a Convention violation
claim. Nor did it say that the Convention necessarily
trumps all procedural default rules. Rather, it said that
the Convention prohibits application of those rules to a
Convention violation claim only “where it has been the
failure of the United States [or of a State] itself to inform
that may have precluded counsel from being in a position
to have raised the question of a violation of the Vienna
Convention in the initial trial.” Avena, 2004 I. C. J., ¶113
(emphasis added). Thus, Article 36(2) precludes proce
dural default only where the defendant’s failure to bring
his claim sooner is the result of the underlying violation.
Since procedural default rules themselves typically excuse
defaults where a defendant shows “cause and prejudice,” it
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BREYER, J., dissenting

is difficult to see how this statement “overlooks the impor
tance of procedural default rules in an adversary system,”
or is “inconsistent with the basic framework” of that
“system.”
Moreover, Avena and LaGrand make clear what the
ICJ’s language taken in context means: The Convention
requires effective national remedies; hence local proce
dural rules must give way (to the Convention’s “full effect”
requirement) when, but only when, it is the failure of the
arresting authorities to inform the defendant of his Con
vention rights that prevented the defendant from bringing
his claim sooner. The opinions nowhere suggest that a
State must provide a procedural remedy to a defendant
who, for example, sleeps on his rights.
Consider, too, what the ICJ did in Avena, a case that
clarified the court’s earlier LaGrand opinion. It did not
hold that American courts must ignore their procedural
default rules in each of the 54 individual cases at issue.
Rather, it held that domestic courts must provide “review
and reconsideration” in each case. Avena, 2004 I. C. J.,
¶153(9). It nowhere forbids a state court conducting such a
“review” to bar claims not timely made provided that the
violation did not itself cause the delay. See id., ¶139.
Perhaps the ICJ’s opinions are open to different inter
pretations. But how does reading those opinions as creat
ing an extreme rule of law, as reflecting a lack of under
standing of the “adversary system,” show “respectful
consideration”? To show that kind of respect, we must
read the opinions in light of the Convention’s underlying
language and purposes and ask whether, or to what ex
tent, they require modification of a State’s ordinary proce
dural rules. See Art. 36(2), 21 U. S. T., at 101 (laws and
regulations “must enable full effect to be given to the
purposes for which the rights accorded under this Article
are intended” (emphasis added)).
Nothing in Avena suggests, for example, that an ar
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BREYER, J., dissenting

rested foreign national who was already aware of his
rights under Article 36, or who had a lawyer who was
aware of those rights, necessarily would be entitled to an
exemption from the State’s procedural default rules under
Article 36(2). Instead, as I have explained, see supra, at
18–19, 23, Avena says only that Article 36(2) requires a
state court to excuse a procedural default rule where the
State failed to inform the defendant of his consular access
rights, and the defendant was not aware of those rights,
and the State is unwilling to provide some other effective
remedy, for example (if the lawyer acts incompetently in
respect to Convention rights of which the lawyer was
aware) an ineffective-assistance-of-counsel claim. The
Court’s reluctance to give LaGrand and Avena this per
fectly reasonable interpretation reflects a failure to pro
vide in practice the “respectful consideration” that we all
believe the law demands.
The Court also relies on Breard v. Greene, 523 U. S. 371
(1998) (per curiam). In that case a foreign national, claim
ing a Convention violation, sought federal habeas corpus.
This Court upheld a denial of relief on the ground that the
lower courts had correctly found that Breard procedurally
defaulted his Convention violation claim by failing to
timely raise it in his state-court proceedings. In reaching
its conclusion, the Court rejected Breard’s claim that the
Convention trumped the procedural default rule. Its
reasons were (1) that “it has been recognized in interna
tional law that, absent a clear and express statement to
the contrary, the procedural rules of the forum State
govern the implementation of the treaty in that State,” id.,
at 375; (2) that this principle is “embodied in the Vienna
Convention itself, which provides that the rights ex
pressed in the Convention ‘shall be exercised in conformity
with the laws and regulations of the receiving State,’ ”
ibid.; and (3) that the federal procedural default rule, as a
later-in-time federal statute, superseded any inconsistent
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BREYER, J., dissenting

provision in the Convention, id., at 376.
I do not believe that Breard controls the outcome of
these cases. With respect to the third ground for the
Court’s decision, Breard concerned a federal, rather than
(as in Bustillo’s case) a state, procedural default rule.
Those different kinds of rules are treated differently under
the Supremacy Clause. See ibid. (applying the rule that
“ ‘an Act of Congress . . . is on a full parity with a treaty,
and . . . when a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of
conflict renders the treaty null’ ”). Contrary to JUSTICE
GINSBURG’s view, then, ante, at 4, there is no anomaly in
treating state law differently from federal law for these
purposes, if Congress chooses to enact legislation binding
only the federal government in respect to a matter covered
by a treaty that binds both the federal government and
the States. Therefore, reading the Convention to require
the state courts to set aside Virginia’s procedural default
rule in Bustillo’s case (assuming for argument’s sake that
his case meets the criteria I have described, see supra, at
15–16) would not call into question, let alone overrule,
“Breard’s plain holding that the Convention does not
trump the [federal] procedural default doctrine,” ante, at
18, n. 4 (opinion of the Court), even if that ruling on its
own terms is still good law after Avena and LaGrand.
Moreover, the ICJ decided Avena and LaGrand after
this Court decided Breard. And it is not difficult to recon
cile those cases with Breard because they do not directly
conflict with Breard’s result. Rather, they interpret Arti
cle 36(2) to require state procedural default rules some
times to give way to the Convention, namely, when those
rules prevent effective remedy by barring assertion of a
claim because of a delay caused by the Convention viola
tion itself. I would read Breard as consistent with this
interpretation, i.e., as not saying that the Convention
never trumps any procedural default rule.
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BREYER, J., dissenting

The Court complains that this treatment of Breard fails
to give our own opinions “ ‘respectful consideration.’ ”
Ante, at 18, n. 4. In fact, our opinions are entitled to far
more than respectful consideration; they are entitled to
full stare decisis effect. But, as I have explained, reading
Breard not to decide the outcome in this case would nei
ther overrule Breard’s holding, nor reject outright its
reading of the Convention. And, in any event, as a matter
of the law of stare decisis, a modified reading of Breard is
appropriate in light of the fact that the ICJ’s later deci
sions amount to a “significant . . . subsequent develop
ment” of the law sufficient to lead to a reconsideration of
past precedent. Agostini v. Felton, 521 U. S. 203, 236
(1997); United States v. Percheman, 7 Pet. 51 (1833) (revis
iting prior treaty interpretation when new international
law has come to light); see also Medellín, 544 U. S., at 689
(O’Connor, J., dissenting) (“In the past the Court has
revisited its interpretation of a treaty when new interna
tional law has come to light” (citing Percheman, supra, at
89)). Indeed, the Court seems to recognize as much, in
that it spends a full six pages explaining why the ICJ’s
interpretation of the Convention is incorrect, see ante, at
18–24, rather than simply rejecting Bustillo’s argument on
the ground that “ ‘respectful consideration’ of precedent
should begin at home.” Ante, at 18, n. 4.
And there are other reasons not to place too much reli
ance on the breadth of Breard’s language. Breard is a per
curiam decision that the Court had to reach within the few
hours available between the time a petition for certiorari
was filed and a scheduled execution, the decision is fairly
recent, and the modification to which I refer requires no
more than reading an exception into Breard’s language,
language that in any event was not central to the Court’s
holding.
The modification is appropriate too because the “full
effect” proviso in Article 36(2) provides a “clear and ex
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BREYER, J., dissenting

press statement” that sometimes the Convention might
trump a domestic procedural rule. And in any event, it is
not even clear that such a clear statement rule actually
exists. Breard’s statement of a presumption that only a
treaty provision with a “clear and express statement” can
trump “the procedural rules of the forum State,” 523 U. S.,
at 375, is in tension with more fundamental interpretive
rules in this area. See, e.g., Jordan v. Tashiro, 278 U. S.
123, 127 (1928) (treaties must be construed liberally to
protect substantial rights); Asakura, 265 U. S., at 342
(same); see also Vienna Convention on the Law of Trea
ties, opened for signature May 23, 1969, Art. 27, 1115
U. N. T. S. 331, T. S. No. 58 (1980), 8 I. L. M. 679 (1969)
(treaty parties may not invoke domestic law as an excuse
for failing to conform to their treaty obligations).
Indeed, the cases Breard cites for the proposition that a
clear and express statement is required to trump a domes
tic procedural rule seem not to establish it. Sun Oil Co. v.
Wortman, 486 U. S. 717, 723 (1988) (Court said only that
it was a “rule in international law at the time the Consti
tution was adopted” that procedural rules “may be gov
erned by forum law even when the substance of the claim
must be governed by another State’s law”; case involved
domestic law and the Constitution’s Full Faith and Credit
Clause); Le Roy v. Crowninshield, 15 F. Cas. 362, 365, 371
(Mass. 1820) (case involved conflict of laws, not an inter
national treaty); Volkswagenwerk Aktiengesellschaft v.
Schlunk, 486 U. S. 694, 700 (1988) (case said that “we
almost necessarily must refer to the internal law of the
forum state” to find a service of process standard if a
treaty “does not prescribe” it); Société Nationale Indus
trielle Aérospatiale v. United States Dist. Court for South
ern Dist. of Iowa, 482 U. S. 522, 539–540, and n. 25 (1987)
(case involving a specific treaty, not a general interpretive
standard).
Finally, the Court says it would be odd to treat Conven
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BREYER, J., dissenting

tion rights more favorably than rights protected by the
U. S. Constitution. Ante, at 24. But “[a] treaty is in its
nature a contract between two nations,” Foster, 2 Pet., at
314, and nations are of course free to agree to grant one
another’s citizens protections that differ from the protec
tions enjoyed by citizens at home, particularly when cir
cumstances call for differential treatment. See infra, at
30.
In sum, I find strong reasons for interpreting the Con
vention as sometimes prohibiting a state court from apply
ing its ordinarily procedural default rule to a Convention
violation claim. The fact that the ICJ reached a similar
conclusion in LaGrand and Avena adds strength to those
reasons. And I cannot agree with the majority’s argu
ments to the contrary.
Consequently, I would remand No. 05–51 so that Busti
llo can argue to the Virginia state courts that they should
modify their ordinary procedural default requirements. I
would leave it to the state courts to determine in the first
instance whether state law has provided Bustillo the
effective remedy that the Convention requires and how it
has done so (whether through “cause and prejudice” excep
tions, ineffective-assistance-of-counsel claims, or other
ways). Cf. LaGrand, 2001 I. C. J., at 33, ¶125 (the “choice
of [implementing] means must be left to the United
States”).
IV
The final question presented asks whether a Convention
violation “result[s] in the suppression” of the evidence, say
a confession, that a foreign national provided police before
being informed of his Convention rights. Pet. for Cert. in
No. 04–10566, p. i. The majority answers in absolute
terms, stating that “suppression is not an appropriate
remedy for a violation of the Convention.” See ante, at 2.
I agree with the majority insofar as it rejects the argu
30 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

ment that the Convention creates a Miranda-style “auto
matic exclusionary rule.” Ante, at 8; see also Miranda,
384 U. S., at 471; cf., e.g., Mapp v. Ohio, 367 U. S. 643
(1961); Franks v. Delaware, 438 U. S. 154 (1978). But I do
not agree with the absolute nature of its statement.
Rather, sometimes suppression could prove the only effec
tive remedy. And, if that is so, then the Convention,
which insists upon effective remedies, would require sup
pression in an appropriate case. Art. 36(2), 21 U. S. T., at
101.
Much depends upon the circumstances. It may be true
that in “most circumstances, there is likely to be little
connection between an Article 36 violation and evidence or
statements obtained by police.” Ante, at 14. Miranda
surely helps, for it guarantees that police will inform an
arrested foreign national of his right to contact a lawyer.
But one cannot guarantee in advance that Miranda will
adequately cure every seriously prejudicial failure to in
form an arrested person of his right to contact his consular
post. One can imagine a case, for example, involving a
foreign national who speaks little English, who comes from
a country where confessions made to the police cannot be
used in court as evidence, who does not understand that a
state-provided lawyer can provide him crucial assistance in
an interrogation, and whose native community has great
fear of police abuse. Indeed, Sanchez-Llamas made allega
tions similar to these in his case. Brief for Petitioner San
chez-Llamas 5-7; see also Brief for the Government of the
United Mexican States as Amicus Curiae 10.
While JUSTICE GINSBURG is correct that a defendant
who is prejudiced under the Convention may be able to
show that his confession is involuntary under Miranda,
ante, at 2, I am not persuaded that this will always be so.
A person who fully understands his Miranda rights but
does not fully understand the implications of these rights
for our legal system may or may not be able to show that
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BREYER, J., dissenting

his confession was involuntary under Miranda, but he will
certainly have a claim under the Vienna Convention. In
such a case suppression of a confession may prove the only
effective remedy. I would not rule out the existence of
such cases in advance.
Furthermore, the majority is wrong to say that it would
“be startling if the Convention were read to require sup
pression” in such cases because suppression “is an entirely
American legal creation.” Ante, at 8 (opinion of the Court).
I put to the side the fact that “suppression” is in origin a
British, not an American, remedy. See Dickerson v.
United States, 530 U. S. 428, 433 (2000) (noting that “the
roots of the [Miranda] test developed in the common law”
and citing English cases); see also King v. Warickshall, 1
Leach 262, 263–264, 168 Eng. Rep. 234, 235 (K. B. 1783)
(coerced confessions are inadmissible in British courts).
Regardless, it is not “startling” to read the Convention as
sometimes requiring suppression. That is because those
who wrote the Convention were fully aware that the crimi
nal justice systems of different nations differ in important
ways. They did not list particular remedies. They used
general language. That language requires every member
nation to give “full effect” to Article 36(1)’s “purposes.”
Art. 36(2), 21 U. S. T., at 101. That language leaves it up
to each nation to determine how to implement Article
36(1)’s requirements. Avena, 2004 I. C. J., ¶127; LaGrand,
supra, at 32–33, ¶125. But as a matter of logic and pur
pose that language must also insist upon the use of sup
pression if and when there are circumstances in which
suppression provides the only effective remedy.
These differences may also help to explain what the
majority says is the disturbing circumstance that “nearly
all” other signatories to the Convention “refuse to recog
nize” suppression “as a matter of domestic law,” and there
fore that “Sanchez-Llamas would [not] be afforded the
relief he seeks here in any of the other 169 countries party
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BREYER, J., dissenting

to the Vienna Convention.” Ante, at 9. In fact, there are
several cases from common-law jurisdictions suggesting
that suppression is an appropriate remedy for a Conven
tion violation. See, e.g., Tan Seng Kiah v. Queen (2001)
160 F. L. R. 26 (Ct. Crim. App. N. Terr.) (Australian case
suppressing confession obtained in violation of statute
requiring police to notify defendant of right to contact
consulate upon arrest); Queen v. Tan [2001] W. A. S. C.
275 (Sup. Ct. W. Australia in Crim.) (Australian case
considering but declining to suppress evidence based on
violation of same statute); Regina v. Partak, 160 C. C. C.
3d, at ¶63 (Canada) (concluding that suppression is inap
propriate, not because it was never a proper remedy under
the Vienna Convention but because the defendant “com
pletely failed to demonstrate any prejudice arising from
the failure of the police to notify him of his consular
rights”).
I concede the absence of such cases from civil law juris
dictions. But the criminal justice systems in those nations
differ from our own in significant ways. Civil-law nations,
for example, typically rely more heavily than do we upon
judicial investigation, questioning by a neutral magistrate,
the compiling of all evidence into a dossier, and later
review of that dossier at trial by judges who may sit with
out our type of jury. In such a system, formal suppression
proceedings may prove less frequent. Judges, as a matter
of practice, may simply disregard improperly obtained
evidence, they may discount the significance of that evi
dence, or they may adjust the nature of future proceedings
or even the final sentence accordingly. See Damaška,
Evidentiary Barriers to Conviction and Two Models of
Criminal Procedure: A Comparative Study, 121 U. Pa.
L. Rev. 506, 522 (1972) (explaining why many civil law
system “provisions regulating the interrogation of defen
dants are silent as to the admissibility of testimony ob
tained in violation of proper interrogation procedures”);
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BREYER, J., dissenting

see also Van Kessel, European Perspectives on the Ac
cused as a Source of Testimonial Evidence, 100 W. Va.
L. Rev. 799, 831 (1997) (“Because [civil law] courts decide
both questions of law and of fact, exclusionary rules in
[those] courts are more appropriately described as rules of
decision than rules of exclusion—what evidence the fact-
finder may use to support its decision, rather than what
evidence may be presented to the factfinder. The presid
ing judge is well acquainted with all evidence in the dos
sier and often must ‘put aside’ or ‘forget about’ evidence
which legally cannot be used to support the judgment”);
Bradley, The Exclusionary Rule in Germany, 96 Harv.
L. Rev. 1032, 1065 (1982) (noting that in German inquisi
torial system, for many police violations, “the fact that
evidence was legally or illegally obtained is not disposi
tive”; instead, the “decision to admit or suppress will be
determined by balancing the relative importance of the
defendant’s privacy rights against the seriousness of the
offense charged”); Declaration of Professor Thomas Wei
gend, Annex 3 to Counter-Memorial of the United States,
in Avena, 2004 I. C. J. No. 128, p. A367, ¶20 (Oct. 22,
2003) (noting that in the German and Dutch legal
systems, a procedural violation can lead to a reduced
sentence).
Thus, the absence of reported decisions formally sup
pressing confessions obtained in violation of the Conven
tion tells us nothing at all about whether such nations
give “full effect” to the “purposes” of Article 36(1). The
existence of cases in such nations where a court denies a
defense request to suppress, of course, might well shed
light on that nation’s readiness to provide an effective
remedy. The Solicitor General cites one (and only one)
such case. See Judgment of Nov. 7, 2001, 5 BGHSt 116
(deciding in light of LaGrand that the Convention creates
individual rights, but declining to suppress confession).
That is the only support I have found for the claim that
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BREYER, J., dissenting

somehow the petitioners here are asking the United States
to provide that which other countries deny, an effective
remedy.
V
The United States joined the Vienna Convention, and
urged other nations to join, in order to promote “the or
derly and effective conduct of consular relations between
States,” and to guarantee “the protection of our citizens
abroad.” Vienna Convention on Consular Relations with
Optional Protocol, S. Exec. Doc. No. E, 91st Cong., 1st
Sess., 60, 75 (1969). In doing so, the United States, along
with the other 169 nations that ratified the Convention,
undertook a complex task. They sought not only to protect
their consular posts, but also to assure that their nationals
would have access to those posts when arrested abroad.
But how to enforce those rights poses a difficult question
because the enforcement mechanism inevitably will vary
depending upon the details of a nation’s legal system. For
practical, legal, and political, reasons, it is difficult to
write enforcement details into an international treaty.
Yet without any such guarantees it may prove difficult to
prevent an individual nation, through application of its
system’s details, from denying in practice the rights that
the treaty sought to assure.
The Convention deals with this problem by including a
general provision that both severely limits the treaty’s
intrusion into the functioning of a domestic legal system
and also safeguards consular access rights from serious
domestic neglect. It does so by stating that those rights
shall “be exercised in conformity with the laws and regula
tions of the receiving State,” provided that those laws and
regulations give “full effect” to Article 36(1)’s purposes.
Art. 36(2), 21 U. S. T., at 101.
Applying this provision to our own legal system, I would
seek to minimize the Convention’s intrusion and federal
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BREYER, J., dissenting

intrusion into the workings of state legal systems while
simultaneously keeping faith with the Convention’s basic
objectives. That is why I believe that the Convention here
requires individual States to make an exception (akin to a
“cause and prejudice” exception) to a state procedural
default rule if (1) the defendant’s failure to raise a claim of
a Convention violation in a timely manner itself was a
product of that violation, and (2) state law provides no
other procedural means through which the State’s courts
can provide “review,” “reconsideration,” and effective
relief. Similarly, I would hold that whether the Conven
tion requires a state court to suppress a confession ob
tained after an Article 36 violation depends on whether
suppression is the only remedy available that will effec
tively cure related prejudice. And because neither state
court applied this standard below, I would remand each
case for that initial consideration. See 338 Ore., at 269,
108 P. 3d, at 574 (rejecting Sanchez-Llamas’ request for
suppression remedy solely on the ground that the Conven
tion “does not create rights that individual foreign nation
als may assert in a criminal proceeding”); App. to Pet. for
Cert. 47a (rejecting Bustillo’s request for state postconvic
tion relief based on a standard different from that set forth
here).
The interpretation of the Convention that I would adopt
is consistent with the ICJ’s own interpretation and should
not impose significant new burdens upon state criminal
justice systems. America’s legal traditions have long
included detailed rules for discovering and curing prejudi
cial legal errors. Indeed, many States already have “cause
and prejudice” exceptions likely broad enough to provide
the “effective” relief the Convention demands. And, in any
event, it leaves the States free to apply their own judicial
remedies in light of, and bounded by, the Convention’s
general instructions.
The Court, I fear, does not rise to the interpretive chal
36 SANCHEZ-LLAMAS v. OREGON

BREYER, J., dissenting

lenge. Rather than seek to apply Article 36’s language
and purposes to the federal/state relationships that char
acterize America’s legal system, it simply rejects the no
tion that Article 36(2) sets forth any relevant requirement.
That approach leaves States free to deny effective relief for
Convention violations, despite America’s promise to pro
vide just such relief. That approach risks weakening
respect abroad for the rights of foreign nationals, a respect
that America, in 1969, sought to make effective through
out the world. And it increases the difficulties faced by
the United States and other nations who would, through
binding treaties, strengthen the role that law can play in
assuring all citizens, including American citizens, fair
treatment throughout the world.
Accordingly, I respectfully dissent.