The Not-So-Great International Law Debate

High Court Cases Put International Law in the Spotlight: Justices Examine Geneva & Vienna Conventions

Despite the cries of foul from Justice Scalia, et al., there are provisions of international law that should be considered in cases brought before US courts. Indeed, the "treaties clause" of the Constitution incorporates such treaties that are ratified by congress into the Constitution as part and parcel of our "supreme law of the land."

Twice last week the U.S. Supreme Court delved into the possible application of rights and remedies under international law but in two very different contexts: the war on crime and the war on terror.

And in both contexts, the Bush administration argued there were no judicially enforceable rights created.

The day after the justices heard arguments on whether enemy combatant Salim Hamdan, detained at Guantánamo Bay, was entitled to certain protections under the Geneva Conventions, the justices took up the much less heralded cases of two foreign nationals claiming that their rights under the Vienna Convention were violated and that their criminal convictions should be set aside.

Moises Sanchez-Llamas, a Mexican national convicted of attempted murder, and Mario Bustillo, a Honduran citizen convicted of first-degree murder, contend that Article 36 of the Vienna treaty requires signing nations to notify "without delay" a detained foreign national of his right to request help from his country's consul and, if the foreign national asks, to inform the consul of the arrest or detention. Sanchez-Llamas v. Oregon, No. 04-10566; Bustillo v. Johnson, No. 05-51.

About six years ago, they say, the U.S. government reversed its position that Article 36 creates individual rights of consular notice and access. The justices agreed to decide whether it does, and whether suppression of evidence sought by Sanchez-Llamas, or the habeas relief sought by Bustillo, would be appropriate remedies for violations of Article 36.

Interestingly enough, the US Solicitor General, Paul Clement, was speaking on the role of international law in the US and US courts. His views were interesting and a little less bizarre than those offered by Justice Scalia.