SANCHEZ-LLAMAS v. OREGON

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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 provides
that if a person detained by a foreign country “so requests, the compe
tent authorities of the receiving State shall, without delay, inform the
consular post of the sending State” of such detention, and “inform the
[detainee] of his rights under this sub-paragraph.” Article 36(2) speci
fies: “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 Compulsory Settlement of Dis
putes, 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 na
tional. When he was arrested after an exchange of gunfire with police,
officers did not inform him that he could ask to have the Mexican Con
sulate notified of his detention. During interrogation, he made incrimi
nating statements regarding the shootout. Before his trial for at
tempted 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 Supreme Court also af
firmed, concluding that Article 36 does not create rights to consular
access or notification that a detained individual can enforce in a judi
cial proceeding.
Petitioner in No. 05–51, Mario Bustillo, a Honduran national, was ar
rested 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 conviction and sen
tence were affirmed on appeal. He then filed a habeas petition in state
*Together with No. 05–51, Bustillo v. Johnson, Director, Virginia De
partment of Corrections, on certiorari to the Supreme Court of Virginia.

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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 judi
cially enforceable rights, suppression is not an appropriate remedy for
a violation, and a State may apply its regular procedural default rules
to Convention claims. Pp. 342–360.
(a) Because petitioners are not in any event entitled to relief, the
Court need not resolve whether the Convention grants individuals en
forceable rights, but assumes, without deciding, that Article 36 does
so. Pp. 342–343.
(b) Neither the Convention itself nor this Court’s precedents applying
the exclusionary rule support suppression of a defendant’s statements
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 re
quired under the Court’s authority to develop remedies for the enforce
ment of federal law in state-court criminal proceedings is rejected. “It
is beyond dispute that [this Court does] not hold a supervisory 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 provide 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 requires a judicial rem
edy, as Sanchez-Llamas claims, that Article equally requires that Article
36(1) rights be exercised in conformity with domestic law. Under do
mestic law, the exclusionary rule is not a remedy this Court applies
lightly. It has been used primarily to deter certain Fourth and Fifth
Amendment violations, including, e. g., unconstitutional searches and sei
zures, Mapp v. Ohio, 367 U. S. 643, 655–657, and confessions exacted in

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violation of the right against compelled self-incrimination or due proc
ess, Dickerson, supra, at 435. In contrast, Article 36 has nothing to do
with searches or interrogations and, indeed, does not guarantee defend
ants any assistance at all. It secures for foreign nationals only the
right to have their consulate informed of their arrest or detention—not
to have their consulate intervene, or to have police cease their investiga
tion pending any such notice or intervention. Moreover, the failure to
inform a defendant of his Article 36 rights is unlikely, with any fre
quency, to produce unreliable confessions, see Watkins v. Sowders, 449
U. S. 341, 347, or to give the police any practical advantage in obtaining
incriminating evidence, see Elkins v. United States, 364 U. S. 206, 217.
Suppression would also be a vastly disproportionate remedy for an Arti
cle 36 violation. The interests Sanchez-Llamas claims Article 36 ad
vances are effectively protected by other constitutional and statutory
requirements, including the right to an attorney and to protection
against compelled self-incrimination. Finally, suppression is not the
only means of vindicating Article 36 rights. For example, diplomatic
avenues—the primary means of enforcing the Vienna Convention—re
main open. Pp. 343–350.
(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 (per curiam), that the petitioner’s failure to raise an
Article 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 unnec
essary to the result because the petitioner there could not demonstrate
prejudice from the default and because, in any event, the later enacted
Antiterrorism and Effective Death Penalty Act of 1996 superseded any
right the petitioner had under the Vienna Convention to have his claim
heard on collateral review. Resolution of the procedural default ques
tion, however, was the principal reason for denying the Breard petition
er’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.
Second, Bustillo asserts that since Breard, the ICJ’s LaGrand and
Avena decisions have interpreted the Convention to preclude the appli
cation 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 understand

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ing 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,” id.,
§ 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 consideration,” the ICJ’s interpre
tation cannot overcome the plain import of Article 36(2), which states
that the rights it implements “shall be exercised 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 Article 36 violation, is inconsistent with the basic
framework of an adversary system. Such a system relies chiefly on the
parties to raise significant issues and present them to the courts in the
appropriate manner at the appropriate time for adjudication. See Cas
tro v. United States, 540 U. S. 375, 386. Procedural default rules gener
ally 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 limi
tations and prohibitions against filing successive habeas 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. Ari
zona, 384 U. S. 436, disposes of Bustillo’s “full effect” claim. Although
the failure to inform defendants of their 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

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subsequent postconviction proceeding. 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 evidence is inapt. Finally, his argument that Arti
cle 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, 530 U. S., at 438. Pp. 350–360.
(d) The Court’s holding in no way disparages the Convention’s impor
tance. 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. 360.
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 opinion
concurring in the judgment, post, p. 360. Breyer, J., filed a dissenting
opinion, in which Stevens and Souter, JJ., joined, and in which Gins
burg, J., joined as to Part II, post, p. 365.
Pe te r Gar t l an arg ued the cause for petiti oner i n
No. 04–10566. With him on the briefs were Donald Francis
Donovan, Carl Micarelli, and Catherine M. Amirfar. Mark
T. Stancil argued the cause for petitioner in No. 05–51.
With him on the briefs were Jeffrey A. Lamken and John
C. Kiyonaga.
Mary H. Williams, Solicitor General of Oregon, argued
the cause for respondent in No. 04–10566. With her on the
brief were Hardy Myers, Attorney General, Peter Shepherd,
Deputy Attorney General, and Erik Wasmann and Benja
min R. Hartman, Assistant Attorneys General. William E.
Thro, State Solicitor General of Virginia, argued the cause
for respondent in No. 05–51. With him on the brief were
Robert F. McDonnell, Attorney General, Stephen R. McCul
lough, Assistant Attorney General, Ronald N. Regnery and
Courtney M. Malveaux, Associate State Solicitors General,
William C. Mims, Chief Deputy Attorney General, and
Marla Graff Decker, Deputy Attorney General.
Deputy Solicitor General Garre argued the cause for the
United States as amicus curiae supporting respondents in

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Counsel
both cases. On the brief were Solicitor General Clement,
Assistant Attorney General Fisher, Deputy Solicitor Gen
eral Dreeben, Douglas Hallward-Driemeier, and Robert J.
Erickson.†
†Briefs of amici curiae urging reversal in both cases were filed for the
Republic of Honduras et al. by Paul R. Q. Wolfson and Asim Bhansali;
for the Association of the Bar of the City of New York by Matthew D.
Roberts; for Bar Associations et al. by Kevin R. Sullivan, William J.
Aceves, and Jenny S. Martinez; and for L. Bruce Laingen et al. by Daniel
C. Malone.
Briefs of amici curiae urging reversal in No. 04–10566 were filed for
the Government of the United Mexican States by Sandra L. Babcock; and
for the National Association of Criminal Defense Lawyers et al. by
Thomas H. Speedy Rice.
Briefs of amici curiae urging reversal in No. 05–51 were filed for the
American Bar Association by Michael S. Greco and Jeffrey L. Bleich; and
for the Mid-Atlantic Innocence Project et al. by Seth A. Tucker.
Briefs of amici curiae urging affirmance in both cases were filed for the
State of Alabama et al. by R. Ted Cruz, Solicitor General of Texas, Greg
Abbott, Attorney General, Barry R. McBee, First Assistant Attorney Gen
eral, Don Clemmer, Deputy Attorney General, and Kristofer S. Monson,
Assistant Solicitor General, and by the Attorneys General for their respec
tive States as follows: Troy King of Alabama, Terry Goddard of Arizona,
Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of
Colorado, Carl C. Danberg of Delaware, Charles J. Crist, Jr., of Florida,
Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Steve Carter
of Indiana, Tom Miller of Iowa, Tom Reilly of Massachusetts, Michael A.
Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of
Montana, George J. Chanos of Nevada, Kelly A. Ayotte of New Hampshire,
Patricia A. Madrid of New Mexico, Wayne Stenehjem of North Dakota,
Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Cor
bett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Paul G.
Summers of Tennessee, Mark L. Shurtleff of Utah, Rob McKenna of
Washington, and Patrick J. Crank of Wyoming; and for Professors of In
ternational Law et al. by Paul B. Stephan, Samuel Estreicher, and Eu
gene Theroux.
Kent S. Scheidegger filed a brief for the Criminal Justice Foundation as
amicus curiae urging affirmance in No. 04–10566.
Briefs of amici curiae were filed in both cases for the European Union
et al. by S. Adele Shank and John B. Quigley; for the Alliance Defense

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Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
Article 36 of the Vienna Convention on Consular Relations
(Vienna Convention or Convention), Apr. 24, 1963, [1970] 21
U. S. T. 77, 100–101, T. I. A. S. No. 6820, addresses communi
cation between an individual and his consular officers when
the individual is detained by authorities 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 defend
ant’s statements to police? Third, may a State, in a postcon
viction proceeding, 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
enforceable 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 pur
pose, evident in its preamble, of “contribut[ing] to the de
velopment of friendly relations among nations, irrespective
of their differing constitutional and social systems.” 21
U. S. T., at 79. The Convention consists of 79 articles regu
lating various aspects of consular activities. At present, 170
Fund by William Wagner and Benjamin W. Bull; for Former United
States Diplomats by Harold Hongju Koh; for the International Court of
Justice Experts by Lori Fisler Damrosch and Charles Owen Verrill, Jr.;
and for Law Professors by John F. Stanton and Helen K. Michael.

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countries are party to the Convention. The United States,
upon the advice and consent of the Senate, ratified the Con
vention in 1969. Id., at 77.
Article 36 of the Convention concerns consular officers’ ac
cess to their nationals detained by authorities in a foreign
country. The article provides that “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 consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is de
tained in any other manner.” Art. 36(1)(b), id., at 101.1 In
other words, when a national of one country is detained by
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 ac
cess 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 consular district, a national of that State is arrested or com
mitted to prison or to custody pending trial or is detained in any other
manner. Any communication addressed to the consular post by the per
son arrested, in prison, custody or detention shall also be forwarded 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 send
ing State who is in prison, custody or detention, to converse and corre
spond 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 exer
cised in conformity with the laws and regulations of the receiving State,
subject to the proviso, 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 intended.” 21 U. S. T., at 100–101.

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authorities in another, the authorities must notify the con
sular officers of the detainee’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 require
ments 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 regu
lations of the receiving State, subject to the proviso,
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 intended.” Art.
36(2), ibid.
Along with the Vienna Convention, the United States rati
fied the Optional Protocol Concerning the Compulsory Set
tlement of Disputes (Optional Protocol or Protocol), Apr. 24,
1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820. The Op
tional 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 Op
tional Protocol on March 7, 2005. Letter from Condoleezza
Rice, Secretary of State, to Kofi A. Annan, Secretary-
General of the United Nations.
B
Petitioner Moises Sanchez-Llamas is a Mexican national.
In December 1999, he was involved in an exchange of gunfire
with police in which one officer suffered a gunshot wound
in the leg. Police arrested Sanchez-Llamas and gave him
warnings under Miranda v. Arizona, 384 U. S. 436 (1966), in

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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 in
terrogated Sanchez-Llamas with the assistance of an inter
preter. In the course of the interrogation, Sanchez-Llamas
made several incriminating statements regarding the shoot
out with police. He was charged with attempted aggra
vated murder, attempted murder, and several other offenses.
Before trial, Sanchez-Llamas moved to suppress the state
ments he made to police. He argued that suppression 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 mo
tion. The case proceeded to trial, and Sanchez-Llamas was
convicted and sentenced to 201⁄ 2 years in prison.
He appealed, again arguing that the Vienna Convention
violation required suppression of his statements. The Ore
gon Court of Appeals affirmed. Judgt. order reported at
191 Ore. App. 399, 84 P. 3d 1133 (2004). The Oregon Su
preme 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. 1001 (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 evening, outside
the restaurant, James Merry was struck in the head with a
baseball bat as he stood smoking a cigarette. He died sev
eral days later. Several witnesses at the scene identified
Bustillo as the assailant. Police arrested Bustillo the morn
ing after the attack and eventually charged him with mur

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der. Authorities never informed him that he could request
to have the Honduran Consulate notified of his detention.
At trial, the defense pursued a theory that another man,
known as “Sirena,” was responsible for the attack. Two de
fense 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 Sirena. 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 convenient 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 sentence were affirmed
on appeal.
After his conviction became final, Bustillo filed a petition
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 Vienna Con
vention. 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, at 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 consulate 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
2 Bustillo’s habeas petition also presented newly acquired evidence that
tended to cast doubt on his conviction. Most notably, he produced a se
cretly recorded videotape in which Sirena admitted killing Merry and
stated that Bustillo had been wrongly convicted. App. in No. 05–51, at

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The state habeas court dismissed Bustillo’s Vienna Con
vention 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 Bustillo’s claim
of ineffective assistance of counsel, ruling that his belated
claim that counsel should have informed him of his Vienna
Convention rights was barred by the applicable statute of
limitations and also meritless under Strickland v. Washing
ton, 466 U. S. 668 (1984). App. in No. 05–51, at 132. In an
order refusing Bustillo’s petition for appeal, the Supreme
Court of Virginia found “no reversible error” in the habeas
court’s dismissal of the Vienna Convention claim. App. to
Pet. for Cert. in No. 05–51, at 1a. We granted certiorari to
consider the Vienna Convention issue. 546 U. S. 1001 (2005).
II
We granted certiorari as to three questions presented in
these cases: (1) whether Article 36 of the Vienna Convention
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 Arti
cle 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 indi
vidually enforceable right to request that their consular offi
cers be notified of their detention, and an accompanying
38, 54. In addition, Bustillo argued that the prosecution violated 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, at 167.

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right to be informed by authorities of the availability 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 en
forced through political and diplomatic channels, rather than
through the courts.” Brief for United States 11; ibid. (quot
ing 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 provisions on the inter
est 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 to relief on their claims,
we find it unnecessary to resolve the question whether the
Vienna Convention grants individuals enforceable rights.
Therefore, for purposes of addressing petitioners’ claims, we
assume, without deciding, that Article 36 does grant Bustillo
and Sanchez-Llamas such rights.
A
Sanchez-Llamas argues that the trial court was required
to suppress his statements to police because authorities
never told him of his rights under Article 36. He refrains,
however, from arguing that the Vienna Convention itself
mandates suppression. We think this a wise concession.
The Convention does not prescribe specific remedies for vio
lations of Article 36. Rather, it expressly leaves the imple
mentation of Article 36 to domestic law: Rights under Article
36 are to “be exercised in conformity with the laws and regu
lations of the receiving State.” Art. 36(2), 21 U. S. T., at 101.
As far as the text of the Convention is concerned, the ques
tion 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 re
quire 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)

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(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) (postratification under
standing “traditionally considered” as an aid to treaty inter
pretation). It is implausible that other signatories to the
Convention thought it to require a remedy that 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
3 See Declaration of Ambassador Maura A. Harty, Annex 4 to Counter-
Memorial of the United States in Case Concerning Avena and other Mexi
can 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)). Ac
cording 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 viola
tions 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 et al. as Amici Curiae 16–23.
The dissent similarly relies on two cases from Australia, post, at 394 (opin
ion of Breyer, J.) (citing Tan Seng Kiah v. Queen (2001) 160 F. L. R. 26
(Crim. App. N. Terr.) and Queen v. Tan [2001] W. A. S. C. 275 (Sup. Ct. W.
Aus. in Crim.)), where consular notification rights are governed by a do
mestic 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 394–395, denied suppression, and
concerned only the court’s general discretionary authority to exclude a

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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 remedies for the enforce
ment of federal law in state-court criminal proceedings.”
Reply Brief for Petitioner in No. 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 pro
ceedings. 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) (suppressing evidence for violation
of federal statute requiring persons arrested without a war
rant to be promptly presented to a judicial officer); Mallory
v. United States, 354 U. S. 449 (1957) (suppressing evidence
for violation of similar requirement of Fed. Rule Crim. Proc.
5(a)); Miller v. United States, 357 U. S. 301 (1958) (suppress
ing 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 in
voke 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 supervisory author
ity over state judicial proceedings and may intervene only to
correct wrongs of constitutional dimension”). The cases on
confession “whose admission would adversely affect the fairness of an ac
cused’s trial.” Queen v. Partak [2001] 160 C. C. C. 3d 553, ¶ 61 (Ont.
Super. Ct. of J.).

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which Sanchez-Llamas principally relies are inapplicable in
light of the limited reach of our supervisory powers. Mal
lory 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 suppres
sion, we have understood it to have a similar basis. See Ker
v. California, 374 U. S. 23, 31 (1963).
We also agree with the State of Oregon and the United
States that our authority to create a judicial remedy applica
ble 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 interpreted
according to its terms. See 1 Restatement (Third) of For
eign 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 pur
pose”). If we were to require suppression for Article 36 vio
lations without some authority in the Convention, we would
in effect be supplementing those terms by enlarging the obli
gations 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,

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there is no issue of intruding on the constitutional preroga
tives 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 through law
making of their own.
Sanchez-Llamas argues that the language of the Conven
tion implicitly requires a judicial remedy because it states
that the laws and regulations governing the exercise of Arti
cle 36 rights “must enable full effect to be given to the pur
poses 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 interpretation. 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 Questions 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 notification through its domestic criminal justice
system”).
Nevertheless, even if Sanchez-Llamas is correct that Arti
cle 36 implicitly requires a judicial remedy, the Convention
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 objec
tives presents a high obstacle for those urging application of
the rule.” Pennsylvania Bd. of Probation and Parole v.

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Scott, 524 U. S. 357, 364–365 (1998). Because the rule’s so
cial costs are considerable, suppression is warranted only
where the rule’s “ ‘remedial objectives are thought most ef
ficaciously 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
constitutional violations. In particular, we have ruled that
the Constitution requires the exclusion of evidence obtained
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 con
fessions exacted by police in violation of the right against
compelled self-incrimination or due process, 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 statu
tory 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 stat
ute 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 “respon
sive 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 suppression
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

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the Fourth Amendment’s protection against ‘unreasonable
. . . seizures’ includes seizure of the person”).
The violation of the right to consular notification, in con
trast, is at best remotely connected to the gathering of evi
dence. Article 36 has nothing whatsoever to do with
searches or interrogations. Indeed, Article 36 does not
guarantee defendants any assistance at all. The provision
secures only a right of foreign nationals to have their consul
ate 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 inter
vention. In most circumstances, there is likely to be little
connection between an Article 36 violation 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 exclu
sion of coerced confessions both because we disapprove of
such coercion and because such confessions tend to be unreli
able. 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 confessions. And un
like the search-and-seizure context—where the need to ob
tain valuable evidence may tempt authorities to transgress
Fourth Amendment limitations—police win little, if any,
practical advantage from violating Article 36. Suppression
would be a vastly disproportionate remedy for an Article
36 violation.
Sanchez-Llamas counters that the failure to inform de
fendants of their right to consular notification gives them

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“a misleadingly incomplete picture of [their] legal options,”
Brief for Petitioner in No. 04–10566, p. 42, and that suppres
sion 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 effec
tively protect the interests served, in Sanchez-Llamas’ view,
by Article 36. A foreign national detained on suspicion of
crime, like anyone else in our country, enjoys under our sys
tem 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 entitled to the protec
tion guaranteed by” the Fifth and Sixth Amendments). Ar
ticle 36 adds little to these “legal options,” and we think it
unnecessary to apply the exclusionary rule where other con
stitutional and statutory protections—many of them already
enforced by the exclusionary rule—safeguard the same in
terests 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 viola
tion 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 av
enues—the primary means of enforcing the Convention—
also remain open.
In sum, neither the Vienna Convention itself nor our prece
dents applying the exclusionary rule support suppression 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

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that a defendant who fails to raise a claim on direct appeal
is barred from raising the claim on collateral review. See
Massaro v. United States, 538 U. S. 500, 504 (2003); Bousley
v. United States, 523 U. S. 614, 621 (1998). There is an ex
ception 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, Vir
ginia applies a similar rule in state postconviction proceed
ings, 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 (emphasis deleted).
This is not the first time we have been asked to set aside
procedural default rules for a Vienna Convention claim. Re
spondent 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 Convention is the ‘supreme law
of the land’ and thus trumps the procedural default doc
trine.” Ibid. We rejected this argument as “plainly incor
rect,” for two reasons. Ibid. First, we observed, “it has
been recognized in international 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 protections such as Article 36 may constitute supreme
federal law, this is “no less true of provisions of the Constitu

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tion itself, to which rules of procedural default apply.” Id.,
at 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, at 45, because the petitioner there
could not demonstrate prejudice from the default and be
cause, in any event, a subsequent federal statute—the Anti
terrorism and Effective Death Penalty Act of 1996, 110 Stat.
1214—superseded any right the petitioner had under the Vi
enna Convention to have his claim heard on collateral review.
We find Bustillo’s contention unpersuasive. Our resolution
of the procedural default question in Breard was the princi
pal 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 Bus
tillo does, that the holding in Breard was “unnecessary” sim
ply 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 ar
gues that since Breard, the ICJ has interpreted the Vienna
Convention to preclude the application of procedural 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 Nation
als (Mex. v. U. S.), 2004 I. C. J. 12 (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 governments claimed that their nationals had
not been informed of their right to consular notification.
They further argued that application of the procedural de
fault rule to their nationals’ Vienna Convention claims failed

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to give “full effect” to the purposes of the Convention, as
required by Article 36. The ICJ agreed, explaining that the
defendants 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, at 57, ¶ 113. Application of the proce
dural 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 gov
ernments from assisting in their nationals’ defense. La-
Grand, supra, at 497, ¶ 91; see also Avena, supra, at 57, ¶ 113.
Bustillo argues that LaGrand and Avena warrant revis
iting the procedural default holding of Breard. In a similar
vein, several amici contend that “the United States is ob
ligated to comply with the Convention, as interpreted by
the ICJ.” Brief for ICJ Experts 11 (emphasis added). We
disagree. Although the ICJ’s interpretation deserves “re
spectful consideration,” Breard, supra, at 375, we conclude
that it does not compel us to reconsider our understanding
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 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
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 389 (opinion of Breyer, J.). This requires more than
“reading an exception into Breard’s language,” post, at 390, 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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under our legal system, determining their meaning as a mat
ter of federal law “is emphatically the province and duty of
the judicial department,” headed by the “one supreme
Court” established by the Constitution. Ibid.; see also Wil
liams v. Taylor, 529 U. S. 362, 378–379 (2000) (opinion of
Stevens, J.) (“At the core of [the judicial] power is the fed
eral courts’ independent responsibility—independent from
its coequal branches in the Federal Government, and inde
pendent from the separate authority of the several States—
to interpret federal law”). It is against this background
that the United States ratified, and the Senate gave its ad
vice and consent to, the various agreements that govern
referral of Vienna Convention 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 except
between the parties and in respect of that particular case,”
Statute of the International Court of Justice, Art. 59, 59 Stat.
1062, T. S. No. 993 (1945) (emphasis added). Any interpreta
tion of law the ICJ renders in the course of resolving particu
5 The dissent’s extensive list of lower court opinions that have “looked
to the ICJ for guidance,” post, at 384–385, 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 Partic
ipations 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., dissenting); Sadat v. Mertes, 615 F. 2d 1176, 1187,
n. 14 (CA7 1980) (per curiam); 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 boundary demarcation. See post, at 384.

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lar disputes is thus not binding precedent even as to the ICJ
itself; there is accordingly little reason to think that such
interpretations were intended to be controlling on our
courts. The ICJ’s principal purpose is to arbitrate particu
lar disputes between national governments. Art. 1, id., at
1055 (ICJ is “the principal judicial organ of the United Na
tions”); see also Art. 34, id., at 1059 (“Only states [i. e., coun
tries] 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. 993 (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 gov
ernment particularly charged with their negotiation and
enforcement is given great weight.” Kolovrat v. Oregon,
366 U. S. 187, 194 (1961). Although the United States has
agreed to “discharge its international obligations” in having
state courts give effect to the decision in Avena, it has not
taken the view that the ICJ’s interpretation 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 Medellı´n v. Dretke, O. T.
2004, No. 04–5928, p. 9a. Moreover, shortly after Avena, the
United States withdrew from the Optional Protocol concern
ing 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 interpreta
tion of a tribunal whose jurisdiction in this area is no longer
recognized by the United States.
LaGrand and Avena are therefore entitled only to the “re
spectful consideration” due an interpretation of an interna
tional agreement by an international court. Breard, 523

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U. S., at 375. Even according such consideration, the ICJ’s
interpretation cannot overcome the plain import of Article
36. As we explained in Breard, the procedural rules of do
mestic law generally govern the implementation of an inter
national 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” pro
vided 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. Bustillo points to nothing in the drafting history of
Article 36 or in the contemporary practice of other signator
ies 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 reasoning overlooks the
importance of procedural default rules in an adversary sys
tem, 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 adjudication. See Cas
tro v. United States, 540 U. S. 375, 386 (2003) (Scalia, J.,
concurring in part and concurring in judgment) (“Our adver
sary system is designed around the premise that the parties
know what is best for them, and are responsible for advanc
ing the facts and arguments entitling them to relief ”). Pro
cedural default rules are designed to encourage parties to
raise their claims promptly and to vindicate “the law’s impor
tant interest in the finality of judgments.” Massaro, 538
U. S., at 504. The consequence of failing to raise a claim for
adjudication at the proper time is generally forfeiture of that

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claim. As a result, rules such as procedural default rou
tinely deny “legal significance”—in the Avena and LaGrand
sense—to otherwise viable legal claims.
Procedural default rules generally take on greater impor
tance in an adversary system such as ours than in the sort
of magistrate-directed, inquisitorial legal system character
istic 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 ex
cuses the defendant’s failure to comply with relevant pro
cedural rules, then presumably rules such as statutes of
limitations and prohibitions against filing successive habeas
petitions must also yield in the 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 instruc
tion 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 procedural
default rules give way only where “the State is unwilling to provide some
other effective remedy, for example (if the lawyer acts incompetently

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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
in respect to Convention rights of which the lawyer was aware) an
ineffective-assistance-of-counsel claim.” Post, at 388 (opinion of Breyer,
J.). But both LaGrand and Avena indicate that the availability of a claim
of ineffective assistance of counsel is not an adequate remedy for an Arti
cle 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 Con
cerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J.
12, 63, ¶ 134 (Judgment 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 defendant’s
attorney is unaware of Article 36, see post, at 387–388 (opinion of Breyer,
J.), this interpretation of the Convention is in sharp conflict with the role of
counsel in our system. “Attorney ignorance or inadvertence 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 for
eign 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 communi
cate with his consulate”). In fact, Bustillo has conceded that his “attor
ney at trial was aware of his client’s rights under the Vienna Convention.”
App. in No. 05–51, at 203, n. 5.

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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 Mi
randa. 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 con
cluded.” Brief for Petitioner in No. 05–51, at 35. Never
theless, 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 postcon
viction proceeding. Wainwright v. Sykes, 433 U. S. 72, 87
(1977).
Bustillo responds that an Article 36 claim more closely re
sembles a claim, under Brady v. Maryland, 373 U. S. 83
(1963), that the prosecution failed to disclose exculpatory evi
dence—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 exculpatory evidence
is disclosed. By contrast, a defendant is well aware of the
fact that he was not informed of his Article 36 rights, even
if the legal significance of that fact eludes him.
Finally, relying on Massaro v. United States, 538 U. S. 500
(2003), Bustillo argues that Article 36 claims “are most ap
propriately raised post-trial or on collateral review.” Brief
for Petitioner in No. 05–51, at 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 fed
eral habeas claims. Bustillo, by contrast, asks us to require
the States to hear Vienna Convention claims raised for the

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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 subjected
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 pro
tections. It is no slight to the Convention to deny petition
ers’ 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.
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, imag
ining other situations unlike those at hand. In neither of
the cases before us would I remand for further proceedings.

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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. Ari
zona, 384 U. S. 436 (1966), in both English and Spanish.
Tr. 122 (Nov. 16, 2000). He indicated that he understood
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 in
dicated that he understood them. Tr. 129, 176. Sanchez-
Llamas, with his life experience in the United States,
scarcely resembles the uncomprehending detainee imagined
by Justice Breyer, post, at 393. Such a detainee would
have little need to invoke the Vienna Convention, for Mi
randa warnings a defendant is unable to comprehend give
the police no green light for interrogation. Moran v. Bur
bine, 475 U. S. 412, 421 (1986) (a defendant’s waiver of Mi
randa 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 Eng
lish); United States v. Short, 790 F. 2d 464, 469 (CA6 1986)
(defendant’s limited comprehension of English cast substan
tial doubt on the validity of her Miranda waiver).1
1 Before trial, Sanchez-Llamas moved to suppress his statements to po
lice 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 Ore
gon Court of Appeals nor the Oregon Supreme Court addressed Sanchez

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Ginsburg, J., concurring in judgment
In contrast to Miranda warnings, which must be given on
the spot before the police interrogate, Article 36 of the Vi
enna Convention does not require the arresting authority to
contact the consular post instantly. See Case Concerning
Avena and other Mexican Nationals (Mex. v. U. S.), 2004
I. C. J. 12, ¶ 97 (Judgment of Mar. 31) (Avena) (United
States’s notification of Mexican consulate within three work
ing days of detainee’s arrest satisfied Article 36(1)(b)’s
“without delay” requirement); U. S. Dept. of State, Con
sular 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) (directing 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 unsurpris
ing, 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 395–396; ante, at 344–345,
n. 3.
Llamas’ voluntariness challenge, and this Court declined to review the
question.
2 See Declaration of Ambassador Maura A. Harty, Annex 4 to Counter-
Memorial of the United States in Case Concerning Avena and other Mexi
can Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, pp. A385–A386,
¶¶ 34–38 (Oct. 25, 2003) (observing that some Convention signatories 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., at
49, ¶ 87 (recognizing that Article 36(1)(b)’s requirement that authorities
“ ‘inform the person concerned without delay of his rights’ cannot be inter
preted to signify that the provision of such information must necessarily
precede any interrogation, so that the commencement of interrogation be
fore the information is given would be a breach of Article 36”).

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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 voluntariness of
[a detainee’s] statements to police.” Ante, at 350. In that
way, “full effect” could be given to Article 36 in a manner
consistent with U. S. rules and regulations. But the ques
tion 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 Conven
tion itself nor the practice of our treaty partners 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 anoma
lies. The Court explains, and I agree, that it would be ex
traordinary to hold that defendants, unaware of their Mi
randa rights because the police failed to convey the required
warnings, would be subject to a State’s procedural default
rules, but defendants not told of Article 36 rights would face
no such hindrance. See ante, at 359. 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 388 (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 de
fault rules, while federal courts operate without constraint in
this regard. Post, at 388–389. That state of affairs, surely
productive of friction in our federal system, should be re
sisted if there is a plausible choice, i. e., if a reasonable inter
pretation 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

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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 Inter
national Court of Justice’s) first condition for overriding 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 precluded counsel from
being in a position to have raised the question of a violation
of the Vienna Convention in the initial trial.’ ” Post, at 381
(quoting Avena, 2004 I. C. J., at 57, ¶ 113; emphasis deleted);
accord post, at 370, 379, 382, 386. 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.” Post, at 386. Had counsel done so, the trial court
could have made “appropriate accommodations to ensure
that the defendant secure[d], to the extent possible, the bene
fits of consular assistance.” Ante, at 350.3
In short, if there are some times when a Convention vio
lation, standing alone, might warrant suppression, or the
displacement of a State’s ordinarily applicable procedural
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 acknowl
edges, see post, at 379, 382, 388, 392, “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 Con
vention 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 ineffective
ness claim as barred by the applicable state statute of limitations. App.
132. Bustillo did not seek review of that decision in this Court.

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default rules, neither Sanchez-Llamas’ case nor Bustillo’s be
longs in that category.
* * *
For the reasons stated, I would not disturb the judgments
of the Supreme Court of Oregon and the Supreme Court of
Virginia.
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 (Vienna
Convention or Convention) 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 communicate with his nation’s con
sular officers. Arts. 36(1)(a), (b), Apr. 24, 1963, [1970] 21
U. S. T. 77, 100–101, T. I. A. S. No. 6820. We granted certio
rari in these cases to consider three related questions:
(1) May a criminal defendant raise a claim (at trial or in a
postconviction proceeding) that state officials violated this
provision? (2) May a State apply its usual procedural de
fault rules to Convention claims, thereby denying the de
fendant the right to raise the claim in a postconviction pro
ceeding on the ground that the defendant failed to raise the
claim at trial? And (3) is suppression of a defendant’s con
fession (made to police after a violation of the Convention)
an appropriate remedy?
The Court assumes, but does not decide, that the answer
to the first question is “yes.” Ante, at 343. It answers the
second question by holding that a State always may apply
its ordinary procedural default rules to a defendant’s claim
of a Convention violation. Ante, at 350–360. Its answer to
the third question is that suppression is never an appropriate
remedy for a Convention violation. Ante, at 343–350.

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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 Constitution requires that the application
of those laws be consistent 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 gov
erns relations between individual nations and foreign con
sular officials. The United States and 169 other nations
have ratified the Convention. Its adoption in 1963 was per
haps “the single most important event in the entire history
of the consular institution.” L. Lee, Consular 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 rati
fied the Convention in 1969.

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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 con
sular 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 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 forwarded by the said authori
ties without delay. The said authorities shall inform
the person concerned without delay 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 intended.”
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 functions of a

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consular officer has been to provide a ‘cultural bridge’ be
tween the host community and the [U. S. national]. No one
needs that cultural bridge more than the individual U. S. citi
zen 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 President
has since withdrawn from) an Optional Protocol to the Con
vention. 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 Condo
leezza 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 application of the Convention shall
lie within the compulsory jurisdiction of the International
Court of Justice [ICJ].” Art. I, 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
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 Concerning Avena and other Mexican Nationals
(Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena).
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 493, ¶ 76. It held instead
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 sufficient remedy.

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Id., at 513–514, ¶ 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 “convic
tion and sentence by taking account of the violation of the
rights set forth in the Convention.” Id., at 514, ¶125. The
ICJ added that “[t]he choice of means” for providing this
review “must be left to the United States.” Ibid. In addi
tion, 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 proceed
ings because they had not raised those claims at trial) vio
lated Article 36(2) of the Convention 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 498, ¶ 91 (quoting Art. 36(2), 21 U. S. T.,
at 101). In the ICJ’s view, it was “the failure of the Ameri
can authorities to comply” with Article 36 that prevented
the LaGrands from raising their claims earlier. LaGrand,
supra, at 497, ¶ 91.
In Mexico’s case, the ICJ reiterated its view that Article
36, in addition to imposing obligations on member nations,
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 ordi
narily “ ‘involves an obligation to make reparation in an ade
quate form.’ ” Avena, supra, at 59, ¶ 119 (quoting Factory at
Chorzo´ w, 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 jus
tice.” Avena, 2004 I. C. J., at 60, ¶ 121 (emphasis added).
The court added that this “ ‘review and reconsideration,’ ” to

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be “effective,” must “fully examin[e] and tak[e] into account”
any such prejudice to the defendant. Id., at 65, ¶ 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 exam
ination of “the concrete circumstances of each case” and
should be determined “by the United States courts con
cerned in the process of their review and reconsideration.”
Id., at 61, ¶ 127.
In respect to procedural default, the ICJ referenced what
it said in LaGrand, while adding the critically important
qualification that the cases in which the Convention 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, at 57, ¶ 113.
C
For present purposes, the key sections of the Convention
are (1) the provision that requires the United States to “in
form” an arrested person “without delay” of his Article 36
rights, including the right to “communicat[e]” with his “con
sular 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 arrested
foreign national without delay that he may contact his con
sulate; (2) that the Convention requires the United States to
provide some process for its courts to “review and recon
side[r]” criminal convictions where there has been a prejudi
cial 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

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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 defend
ant may raise a claim (at trial or in a postconviction proceed
ing) 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 reme
dial 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, Construc
tion and Application of Vienna Convention on Consular Rela
tions (VCCR), Requiring That Foreign Consulate Be Noti
fied 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. Compare Cardenas v.
Dretke, 405 F. 3d 244 (CA5 2005) (defendant cannot bring
Convention claim in judicial proceeding); United States v.
Emuegbunam, 268 F. 3d 377 (CA6 2001) (same); State v.
Martinez-Rodriguez, 2001–NMSC–029, 33 P. 3d 267 (same);
338 Ore. 267, 108 P. 3d 573 (2005) (same); Shackleford v. Com
monwealth, 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 Medellı´n 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.

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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 with
out 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 individual
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 ap
plicable in legal proceedings that might have been brought
irrespective of the Vienna Convention claim, here an
ordinary criminal appeal and an ordinary postconviction
proceeding.
Bustillo, for example, has brought an action under a Vir
ginia statute that allows any convicted person to seek release
from custody on the ground that “he is detained without law
ful authority.” Va. Code Ann. § 8.01–654(A)(1) (Lexis Supp.
2006). Sanchez-Llamas has challenged his state criminal
conviction on direct appeal, and in that proceeding he is enti
tled to claim that his conviction violates state or federal law.
In both cases, the petitioners argue that a court decision fa
voring 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 Con
vention (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.” Ibid. As

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Chief Justice Marshall long ago explained, under the Su
premacy 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 pro
vision.” 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, whenever
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 jus
tice,” 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 stat
ute.” Head Money Cases, 112 U. S. 580, 598–599 (1884).
As noted above, see supra, at 372, the parties agree that
the Convention “operates of itself without the aid of any leg
islative 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 explained,
we are to answer that question by asking, does the Conven
tion “prescribe a rule by which the rights of the private
citizen . . . may be determined”? Are the obligations set
forth in Article 36(1)(b) “of a nature to be enforced 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 provisions
consist of the rights of a foreign national “arrested” or
“detained in any other manner” (1) to have, on his “re
ques[t],” the “consular post” “inform[ed]” of that arrest or
detention; (2) to have forwarded “without delay” any “com
munication 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 com
monly enforce. Cf. U. S. Const., Amdt. 6 (“In all criminal

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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 con
sular officials. Cf. Art. 9, id., at 86 (discussing “the right of
any of the Contracting Parties to fix the designation of con
sular officers” (emphasis added)); Art. 34, id., at 98 (consular
officials shall have “freedom of movement and travel”); Art.
35(1), id., at 99 (consular officials shall have “freedom of com
munication”); 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 auto
matically assumed that this statute created applicable law
that a criminal defendant could invoke at trial? What more
would the statute have to say? See Medellı´n, 544 U. S., at
687 (O’Connor, J., dissenting) (“And if a statute were to pro
vide, 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 domestic
judicial proceedings. In United States v. Rauscher, 119
U. S. 407, 410–411 (1886), for example, this Court concluded
that the defendant could raise as a defense in his federal
criminal trial the violation of an extradition treaty that said:

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“ ‘It is agreed that the United States and Her Britannic Maj
esty 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, possessing or disposing of
every kind of property . . . citizens of [each country who
reside in the other] shall enjoy the rights which the respec
tive 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 forbidding noncitizens from work
ing 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 proceed
ing, even though the treaty did not specifically mention judi
cial 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 con
sular officials may enforce other provisions of the Conven
tion 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

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“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 proceeding, 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 interpretation of
the Convention, the ICJ, has twice ruled that an arrested
foreign national may raise a violation of the arresting author
ities’ obligation to “inform [him] without delay of his rights
under” Article 36(1) in an American judicial proceed
ing. See Avena, 2004 I. C. J. 12; LaGrand, 2001 I. C. J. 466.
That conclusion, as an “interpretation of an international
agreement by an international court” deserves our “ ‘re
spectful consideration.’ ” Ante, at 355 (opinion of the
Court). That “respectful consideration,” for reasons I shall
explain, see infra, at 382–385, counsels in favor of an inter
pretation 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 indi
viduals”; hence, a foreign national may not claim in an Amer
ican court that a State has convicted him without the con
sular notification that Article 36 requires. Brief for United
States as Amicus Curiae 7. But its arguments are not per
suasive. The Government rests this conclusion primarily
upon its claim that there is a “long-established presumption
that treaties and other international agreements do not cre
ate judicially enforceable individual rights.” Id., at 11.
The problem with that argument is that no such presump
tion exists. The Government cites three cases in support of

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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 tribu
nals 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 possible that the Courts of either
should refuse to abide by the measures adopted by its own
government.” 2 Pet., at 306–307. What have these issues
to do with the present one? How do these cases support the
presumption that the Government claims?
Regardless, as I have just said, see supra, at 373, 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 Foreign Rela
tions Law of the United States § 907 (1986) (hereinafter Re
statement) (“A private person having rights against the
United States under an international agreement may assert
those rights in courts in the United States”). And the lan
guage 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 confes
sion); Queen v. Abbrederis (1981) 51 F. L. R. 99, 115 (Ct.
Crim. App. New South Wales (Australia)) (deciding that Con
vention does not “affect the carrying out of an investigation
by interrogation of a foreign person coming to this country”).

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But see Queen v. Van Bergen, [2000] 261 A. R. 387, 390 (Ct.
App. Alberta (Canada)) (noting in dictum that the Conven
tion “creates an obligation between states and is not one
owed to the national,” but affirming denial of suppression
motion 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
the defendant’s statements were admissible); compare cases
cited infra, at 394–395.
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 pre
sumption. But the Executive’s views on our treaty obliga
tions are “not conclusive.” Id., at 184; see Perkins v. Elg,
307 U. S. 325, 328, 337–342 (1939) (declining to adopt Execu
tive’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 con
fer enforceable rights upon an individual, I cannot find in the
simple fact of the Executive Branch’s contrary view suffi
cient 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 respec
tive state-court proceedings.
III
The more difficult issue, I believe, concerns the nature of
the Convention’s requirements as to remedy. In particular,
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

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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 350–360. In its view, the Convention does not
under any circumstances trump a State’s ordinary proce
dural 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 regula
tions of the receiving State,” but it instantly adds, “subject
to the proviso . . . that the said laws and regulations 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 de
fendant’s failure to raise a Convention matter (e. g., that po
lice 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 provide 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 en
able 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 in
terpretation. The first draft of the Vienna Convention was
written by the International Law Commission. Article
36(2) of that draft required only that domestic laws “not nul
lify” the rights afforded by the Convention. Draft Articles

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on Consular Relations Adopted by the International 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 laws and regulations or the criminal
procedure of the receiving State.” 1 United Nations Con
ference on Consular Relations, Official Records, 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., ¶ 30, at
38–39 (statement of Congo, Leopoldville) (amendment “im
plied 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 [signator
ies] to alter their criminal laws and regulations”); id., 20th
mtg., ¶ 81, at 84 (statement of Romania) (same); id., ¶ 95, at
86 (statement of Czechoslovakia) (same).
Based on this objection, the Soviet Union proposed revert
ing 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 in
operative—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 im
portant that the substance of the rights and obligations
specified . . . should be preserved.” Id., ¶¶ 6–7, at 40.

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No one disagreed with the United Kingdom’s understanding
of the words “full effect.” And with that understanding, the
delegates voted down the Soviet Union’s proposal to revert
to the original language, and ultimately adopted the provi
sion with the words “full effect.” Id., ¶ 109, at 87. As so
enacted, the provision reflects the “essential principle of in
ternational law . . . ‘that reparation must, as far as possible,
wipe out all the consequences of the illegal act and reestab
lish the situation which would, in all probability, 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., at 59–60, ¶ 121; La-
Grand, 2001 I. C. J., at 513–514, ¶ 125. The ICJ added that
the Convention requires member states to provide “effective”
remedies in their courts for Convention violations. See
Avena, supra, at 65, ¶ 138. And the ICJ made two critical
statements in respect to procedural default rules. In La-
Grand, the court said that in “itself, the [procedural default]
rule does not violate Article 36 of the Vienna Convention.”
2001 I. C. J., at 497, ¶ 90 (emphasis added). Rather, the “prob
lem arises when the procedural default rule does not allow the
detained individual to challenge a conviction and sentence by
claiming . . . that the competent national authorities failed to
comply with their obligation to provide the requisite consular
information ‘without delay.’ ” Ibid. And the ICJ later spec
ified that the Convention forbids American States to apply a
procedural default rule to bar assertion of a Convention viola
tion claim “where it has been the failure of the United States
[or of a State] itself to inform that may have precluded coun
sel 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., at 57, ¶ 113 (emphasis added).

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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. Taken together,
the above statements make clear that the ICJ read the Con
vention simply to require an effective remedy. It stated re
peatedly that it did not dictate what that remedy would be,
as long as it was offered as part of the “judicial process.”
Id., at 65–66, ¶¶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 proce
dural default rules. See ABA Guidelines for the Appoint
ment and Performance of Defense Counsel in Death Penalty
Cases 10.6 (rev. ed. Feb. 2003) (discussing defense counsel’s
obligation to seek consular assistance); Valdez v. State, 46
P. 3d 703, 710 (Okla. Crim. App. 2002) (granting postconvic
tion 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 im
portant new evidence); see also Ledezma v. State, 626 N. W.
2d 134, 152 (Iowa 2001) (concluding that “all criminal defense
attorneys 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 majority
points out, the ICJ’s decisions on this issue nonetheless war
rant our “ ‘respectful consideration.’ ” Ante, at 355. That

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“respectful consideration” reflects the understanding that
uniformity is an important goal of treaty interpretation.
See Olympic Airways v. Husain, 540 U. S. 644, 660 (2004)
(Scalia, J., dissenting) (“[I]t is reasonable to impute to the
parties an intent that their respective courts strive to inter
pret the treaty consistently”). And the ICJ’s position as an
international court specifically charged with the duty to in
terpret numerous international treaties (including the Con
vention) 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); Ordo
nez & Reilly, Effect of the Jurisprudence of the International
Court of Justice on National Courts, in International Law
Decisions 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 interpre
tation, a branch of international law. The ICJ’s opinions
“are persuasive evidence” of what “[international] law is.”
1 Restatement § 103, at 37, Comment b; see also Morrison,
Treaties as a Source of Jurisdiction, Especially in U. S. Prac
tice, 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 evidence of what [interna
tional] law really is” can be found in “the works of jurists
and commentators, who by years of labor, research and expe
rience, 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 Mate
rials 120 (3d ed. 1993) (“[T]he decisions of the [ICJ] are, on

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384 SANCHEZ-LLAMAS v. OREGON
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the whole, regarded by international lawyers as highly per
suasive authority of existing international law”).
Thus, this Court has repeatedly looked to the ICJ for guid
ance in interpreting treaties and in other matters of interna
tional law. See, e. g., United States v. Maine, 475 U. S. 89,
99–100 (1986) (referring to the Fisheries Case (United King
dom v. Norway), 1951 I. C. J. 116 (Judgment of Dec. 18), 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, 628–629, and n. 20 (1983) (citing Case
Concerning The Barcelona Traction, Light & Power Co.,
1970 I. C. J. 3 (Judgment of Feb. 5), for the proposition that
an incorporated entity “is not to be regarded as legally sepa
rate from its owners in all circumstances”); United States v.
California, 381 U. S. 139, 172 (1965) (citing the Corfu Chan
nel Case, 1949 I. C. J. Rep. 4 (Judgment of Apr. 9), in bound
ary dispute); Reid v. Covert, 354 U. S. 1, 61 (1957) (Frank
furter, J., concurring in result) (citing France v. United
States, 1952 I. C. J. Rep. 176 (Judgment of Aug. 27), as au
thority for the meaning of the word “ ‘disputes’ ” in interna
tional treaties).
The lower courts have done the same. See, e. g., Mc-
Kesson 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., 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 England v. Secretary
of Interior, 790 F. 2d 965, 967 (CA1 1986); Persinger v. Is
lamic 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

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385 Cite as: 548 U. S. 331 (2006)
Breyer, J., dissenting
428, 433, and nn. 8–9 (CA9 1982); Spiess v. C. Itoh & Co.
(America), Inc., 643 F. 2d 353, 365 (CA5 1981) (Reavley, J.,
dissenting); Agee v. Muskie, 629 F. 2d 80, 90 (CADC 1980)
(MacKinnon, J., dissenting); Sadat v. Mertes, 615 F. 2d 1176,
1187–1188, n. 14 (CA7 1980) (per curiam); Narenji v. Civi
letti, 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 Interna
tionale Pour Participations Industrielles et Commerciales,
S. A., 278 F. 2d 268, 273, n. 3 (CADC 1960) (Fahy, J., dissent
ing); Greenpeace, Inc. v. France, 946 F. Supp. 773, 783 (CD
Cal. 1996); Looper v. Morgan, Civ. A. 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. Republic of Palau, 639 F. Supp. 706, 715 (SDNY 1986);
Massachusetts 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); Ro
driguez 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).

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Today’s decision interprets an international treaty in a
manner that conflicts not only with the treaty’s language 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 unprecedented.
The Court supports its interpretation in three basic ways.
First, the majority says that “respectful consideration” 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 majority says, would permit
a Convention violation claim to “trump not only procedural
default rules, but any number of other rules requiring par
ties to present their legal claims at the appropriate time for
adjudication.” Ante, at 357. That interpretation, it adds,
“overlooks the importance of procedural default rules in an
adversary system,” and is “inconsistent with the basic frame
work” of that “system.” Ante, at 356–357.
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 La-
Grand, the ICJ did not say that the Convention necessarily
trumps any, let alone all, procedural rules that would other
wise 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 vio
lation of the Vienna Convention in the initial trial.” Avena,
2004 I. C. J., at 57, ¶ 113 (emphasis added). Thus, Article
36(2) precludes procedural default only where the defendant’s
failure to bring his claim sooner is the result of the underly
ing violation. Since procedural default rules themselves
typically excuse defaults where a defendant shows “cause and
prejudice,” it is difficult to see how this statement “overlooks

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the importance 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 procedural rules
must give way (to the Convention’s “full effect” requirement)
when, but only when, it is the failure of the arresting authori
ties to inform the defendant of his Convention 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 clari
fied 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 recon
sideration” in each case. Avena, 2004 I. C. J., at 72, ¶ 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., at 65, ¶ 139.
Perhaps the ICJ’s opinions are open to different interpre
tations. But how does reading those opinions as creating an
extreme rule of law, as reflecting a lack of understanding
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 extent, they require modification
of a State’s ordinary procedural 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 arrested
foreign national who was already aware of his rights under
Article 36, or who had a lawyer who was aware of those

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rights, necessarily would be entitled to an exemption from
the State’s procedural default rules under Article 36(2). In
stead, as I have explained, see supra, at 381–382, 387, 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 defend
ant 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 perfectly reasonable interpretation reflects a fail
ure to provide 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 con
clusion, the Court rejected Breard’s claim that the Conven
tion trumped the procedural default rule. Its reasons were
(1) that “it has been recognized in international law that,
absent a clear and express statement to the contrary, the
procedural rules of the forum State govern the implementa
tion 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 expressed in the Convention ‘shall
be exercised in conformity with the laws and regulations of
the receiving State,’ ” ibid.; and (3) that the federal proce
dural default rule, as a later-in-time federal statute, super
seded any inconsistent 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 deci

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sion, 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 stat
ute to the extent of conflict renders the treaty null’ ”). Con
trary to Justice Ginsburg’s view, then, ante, at 363 (opin
ion concurring in judgment), there is no anomaly in treating
state law differently from federal law for these purposes, if
Congress chooses to enact legislation binding only the Fed
eral 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 Bus
tillo’s case (assuming for argument’s sake that his case meets
the criteria I have described, see supra, at 379) 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 353, 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 reconcile
those cases with Breard because they do not directly conflict
with Breard’s result. Rather, they interpret Article 36(2)
to require state procedural default rules sometimes 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 violation itself. I would
read Breard as consistent with this interpretation, i. e., as
not saying that the Convention never trumps any procedural
default rule.
The Court complains that this treatment of Breard fails to
give our own opinions “ ‘respectful consideration.’ ” Ante,
at 353, n. 4. In fact, our opinions are entitled to far more

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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 neither overrule
Breard’s holding, nor reject outright its reading of the Con
vention. 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 decisions amount to a
“significant . . . subsequent development” 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) (revisiting prior treaty interpretation when
new international law has come to light); see also Medellı´n,
544 U. S., at 689 (O’Connor, J., dissenting) (“In the past the
Court has revisited its interpretation of a treaty when new
international law has come to light” (citing Percheman,
supra, at 89)). Indeed, the Court seems to recognize as
much, in that it spends several pages explaining why the
ICJ’s interpretation of the Convention is incorrect, see ante,
at 356–357, rather than simply rejecting Bustillo’s argument
on the ground that “ ‘respectful consideration’ of precedent
should begin at home,” ante, at 353, n. 4.
And there are other reasons not to place too much reliance
on the breadth of Breard’s language. Breard is a per cu
riam 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 ef
fect” proviso in Article 36(2) provides a “clear and express
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 pro

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vision 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 Treaties, 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 domestic
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 Constitution
was adopted” that procedural rules “may be governed 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 (No. 8,269) (Mass.
1820) (case involved conflict of laws, not an international
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); Socie´te´ Nationale Industrielle Ae´rospatiale v. United
States Dist. Court for Southern 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 Convention
rights more favorably than rights protected by the U. S. Con
stitution. Ante, at 358–360. 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

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citizens protections that differ from the protections enjoyed
by citizens at home, particularly when circumstances call for
differential treatment. See infra, at 394.
In sum, I find strong reasons for interpreting the Conven
tion as sometimes prohibiting a state court from applying 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 arguments to the contrary.
Consequently, I would remand No. 05–51 so that Bus
tillo 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 effec
tive remedy that the Convention requires and how it has
done so (whether through “cause and prejudice” exceptions,
ineffective-assistance-of-counsel claims, or other ways). Cf.
LaGrand, 2001 I. C. J., at 513, ¶ 125 (the “choice of [imple
menting] 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 337. I agree
with the majority insofar as it rejects the argument that the
Convention creates a Miranda-style “automatic exclusionary
rule.” Ante, at 344; 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 effective remedy. And, if that is so,
then the Convention, which insists upon effective remedies,

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would require suppression 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 con
nection between an Article 36 violation and evidence or
statements obtained by police.” Ante, at 349. Miranda
surely helps, for it guarantees that police will inform an ar
rested foreign national of his right to contact a lawyer. But
one cannot guarantee in advance that Miranda will ade
quately cure every seriously prejudicial failure to inform an
arrested person of his right to contact his consular post.
One can imagine a case, for example, involving a foreign na
tional 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 interroga
tion, and whose native community has great fear of police
abuse. Indeed, Sanchez-Llamas made allegations similar to
these in his case. Brief for Petitioner Sanchez-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 361,
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 sys
tem may or may not be able to show that his confession was
involuntary under Miranda, but he will certainly have a
claim under the Vienna Convention. In such a case, sup
pression 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 suppres
sion” in such cases because suppression “is an entirely Amer
ican legal creation.” Ante, at 343. I put to the side the fact

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that “suppression” is in origin a British, not an American,
remedy. See Dickerson v. United States, 530 U. S. 428, 433
(2000) (noting that “[t]he roots of the [Miranda] test devel
oped in the common law” and citing English cases); see also
King v. Warickshall, 1 Leach 263, 263–264, 168 Eng. Rep.
234, 235 (1783) (coerced confessions are inadmissible in Brit
ish 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 criminal 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 “pur
poses.” 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., at 61,
¶ 127; LaGrand, supra, at 513–514, ¶ 125. But as a matter
of logic and purpose that language must also insist upon the
use of suppression if and when there are circumstances in
which suppression provides the only effective remedy.
These differences may also help to explain what the major
ity says is the disturbing circumstance that “nearly all” other
signatories to the Convention “refuse to recognize” suppres
sion “as a matter of domestic law,” and therefore that
“Sanchez-Llamas would [not] be afforded the relief he seeks
here in any of the other 169 countries party to the Vienna
Convention.” Ante, at 344. In fact, there are several cases
from common-law jurisdictions suggesting that suppression
is an appropriate remedy for a Convention violation. See,
e. g., Tan Seng Kiah v. Queen (2001) 160 F. L. R. 26 (Crim.
App. N. Terr.) (Australian case suppressing confession ob
tained in violation of statute requiring police to notify de
fendant of right to contact consulate upon arrest); Queen v.
Tan [2001] W. A. S. C. 275 (Sup. Ct. W. Aus. in Crim.) (Aus
tralian case considering but declining to suppress evidence
based on violation of same statute); Queen v. Partak, 160

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C. C. C. 3d, at ¶ 63 (Canada) (concluding that suppression is
inappropriate, not because it was never a proper remedy
under the Vienna Convention but because the defendant
“completely 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 jurisdic
tions. But the criminal justice systems in those nations dif
fer 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 com
piling of all evidence into a dossier, and later review of that
dossier at trial by judges who may sit without 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 evidence, or they may adjust
the nature of future proceedings or even the final sentence
accordingly. See Damasˇka, Evidentiary Barriers to Convic
tion 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 interroga
tion of defendants are silent as to the admissibility of testi
mony obtained in violation of proper interrogation proce
dures”); see also Van Kessel, European Perspectives on the
Accused 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 evi
dence may be presented to the fact-finder. The presiding
judge is well acquainted with all evidence in the dossier and
often must ‘put aside’ or ‘forget about’ evidence which legally
cannot be used to support the judgment”); Bradley, The Ex
clusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1065
(1982) (noting that in the German inquisitorial system, for

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many police violations, “the fact that evidence was legally or
illegally obtained is not dispositive”; 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 Pro
fessor Thomas Weigend, 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 suppress
ing confessions obtained in violation of the Convention 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 sup
press, of course, might well shed light on that nation’s readi
ness 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 sup
press confession). That is the only support I have found for
the claim that 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 orderly
and effective conduct of consular relations between States,”
and to guarantee “the protection of our citizens abroad.”
Vienna Convention on Consular Relations with Optional Pro
tocol, S. Exec. Doc. No. E, 91st Cong., 1st Sess., 60, 75 (1969).
In doing so, the United States, along with the other 169 na
tions 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

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397 Cite as: 548 U. S. 331 (2006)
Breyer, J., dissenting
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 intru
sion into the functioning of a domestic legal system and also
safeguards consular access rights from serious domestic ne
glect. It does so by stating that those rights shall “be ex
ercised in conformity with the laws and regulations 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
intrusion into the workings of state legal systems while si
multaneously keeping faith with the Convention’s basic ob
jectives. 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 de
fault 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 proce
dural means through which the State’s courts can provide
“review,” “reconsideration,” and effective relief. Similarly,
I would hold that whether the Convention requires a state
court to suppress a confession obtained after an Article 36
violation depends on whether suppression is the only remedy
available that will effectively 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’

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398 SANCHEZ-LLAMAS v. OREGON
Breyer, J., dissenting
request for suppression remedy solely on the ground that the
Convention “does not create rights that individual foreign
nationals may assert in a criminal proceeding”); App. to Pet.
for Cert. 47a (rejecting Bustillo’s request for state postcon
viction 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 jus
tice systems. America’s legal traditions have long included
detailed rules for discovering and curing prejudicial legal
errors. Indeed, many States already have “cause and
prejudice” exceptions likely broad enough to provide the “ef
fective” relief the Convention demands. And, in any event,
it leaves the States free to apply their own judicial reme
dies in light of, and bounded by, the Convention’s general
instructions.
The Court, I fear, does not rise to the interpretive chal
lenge. Rather than seek to apply Article 36’s language and
purposes to the federal-state relationships that character
ize America’s legal system, it simply rejects the notion that
Article 36(2) sets forth any relevant requirement. That
approach leaves States free to deny effective relief for Con
vention violations, despite America’s promise to provide
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 throughout the
world. And it increases the difficulties faced by the United
States and other nations who would, through binding trea
ties, strengthen the role that law can play in assuring all
citizens, including American citizens, fair treatment through
out the world.
Accordingly, I respectfully dissent.