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The U.S. Supreme Court and the International Court of Justice: What Does “Respectful Consideration” Mean?

Document Type

Book Section

Language

English (en)

Publication Date

2009

Publication Title

The Sword and the Scales: The United States and International Courts and Tribunals

Abstract

For those interested in the attitudes of U.S. courts toward international tribunals, the 2005–6 Supreme Court term was slated to be a watershed moment. The nascent dialogue between the U.S. Supreme Court and the International Court of Justice (ICJ) over consular notification – begun eight years earlier – was expected to reach its apex in Sanchez-Llamas v. Oregon. In a series of decisions, the ICJ had held that the United States had violated its obligation, under Article 36 of the Vienna Convention on Consular Relations, to notify foreign nationals detained by the police of their right to contact their countries' consulates. Moreover, the ICJ had ruled that the application of procedural default rules to consular notification claims violated Article 36 because it failed to give “full effect” to the purposes underlying the treaty. As a remedy for the treaty violation, the ICJ prescribed “review and reconsideration” of criminal proceedings involving consular notification claims that had been held by U.S. courts to be procedurally defaulted. Supreme Court watchers widely expected the Court in Sanchez-Llamas to decide what judicial deference, if any, was due the ICJ's interpretation of the Vienna Convention. More broadly, at stake was the extent to which the Supreme Court would choose to participate in dialogue on matters of treaty interpretation – and precisely what that dialogic relationship would look like – both with the ICJ and with the rapidly proliferating numbers of other international tribunals.

Keywords

United States Supreme Court, Sanchez-Llamas v. Oregon, International Court of Justice, Vienna Convention on Consular Relations, Consular Notification, International Law, Foreign Authority, Constitutional Interpretation

Publication Citation

Melissa A. Waters, The U.S. Supreme Court and the International Court of Justice: What Does “Respectful Consideration” Mean?, in The Sword and the Scales: The United States and International Courts and Tribunals 112-130 (Cesare P. R. Romano ed., 2009)

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