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____ (2003) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

OSBALDO TORRES v. MIKE MULLIN, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 03–5781. Decided November 17, 2003

JUSTICE BREYER, dissenting from denial of certiorari.

Article 36 of the Vienna Convention on Consular Rela-
tions requires United States authorities (1) to tell an
arrested foreign national, without delay, that he may
have his nation’s consul informed of the arrest, and (2) to
tell the consul about the arrest (if the foreign national so
desires). Apr. 24, 1963, Art. 36, ¶1(b), [1970] 21 U. S. T.
77, T. I. A. S. No. 6820. This case raises important ques-
tions concerning the relation between, on the one hand,
the domestic law of the United States, and, on the other,
decisions of the International Court of Justice inter-
preting the Convention. See LaGrand Case (F. R. G.
v. U. S.), 2001 I. C. J. 104 (Judgment of June 27) (here-
inafter LaGrand), http://www.icj-cij.org/icjwww/idocket/
igus/igusframe.htm (all Internet materials as visited Oct.
24, 2003, and available in Clerk of Court’s case file); Case
Concerning Avena and other Mexican Nationals (Mex. v.
U. S.), 2003 I. C. J. ___ (Order of Feb. 5) (Order in a
case, concerning petitioner Osbaldo Torres, scheduled for
hearing at the ICJ in Dec.) (hereinafter Provisional
Measures Order), http://www.icj-cij.org/icjwww/idocket/
imus/imusorder/imus_iorder_20030205.PDF).
I
This case arises in the following circumstances: In July
1993, law enforcement authorities in Oklahoma arrested
Osbaldo Torres, a Mexican national, and charged him with
murder. An Oklahoma court convicted him and sentenced
him to death. The Oklahoma Court of Criminal Appeals
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BREYER, J., dissenting

affirmed his conviction and sentence and denied his vari-

ous claims for postconviction relief. See Torres v. State,
962 P. 2d 3 (1998); Torres v. State, No. PC–98–213 (Okla.
Crim. App., Aug. 4, 1998) (unpublished order); Torres v.
State, 58 P. 3d 214 (Okla. Crim. App. 2002).
In 1999, Torres filed a petition for habeas corpus in
Federal District Court. He claimed, among other things,
that the arresting authorities had failed to notify him of
his Vienna Convention rights—and similarly had failed to
notify Mexican consular officials of his arrest. The Fed-
eral District Court rejected this claim on the grounds that
(1) Torres had not raised this claim in his state-court
proceedings, thereby procedurally defaulting the claim
under state law, and (2) Torres did not show that the
Convention violation had prejudiced him. Torres v. Gib-
son, No. CIV–99–155–R (WD Okla., Aug. 23, 2000), p. 73
(unpublished memorandum opinion and order); cf. Breard
v. Greene, 523 U. S. 371, 377 (1998) (per curiam). The
District Court and the Court of Appeals for the Tenth
Circuit refused to issue a certificate of appealability.
Torres v. Gibson, No. CIV–99–155–R (WD Okla., Oct. 6,
2000); Torres v. Gibson, No. 00–6334 (CA10, Apr. 26,
2001) (unpublished order); 317 F. 3d 1145, 1148, n. 1
(CA10 2003) (case below). Torres petitions for certiorari,
seeking our review of the Court of Appeals’ determination.
Torres argues that the Tenth Circuit’s determination
conflicts with ICJ decisions, which, he says, authorita-
tively interpret the Convention. He asks us to grant
certiorari in light of the conflict. Mexico has filed an
amicus curiae brief in support of the petition. Mexico
points out that it has brought a case before the Interna-
tional Court of Justice in which it claims, among other
things, that the United States, in convicting and sentenc-
ing Torres, has violated the Convention, which, in its view,
must apply as part of our domestic law. Mexico asks us to
defer consideration of this case until the ICJ decides that
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BREYER, J., dissenting

dispute.
II
Torres and Mexico are aware that this Court, in Breard,
523 U. S., at 375–376, held that the Vienna Convention
itself permits both state and federal courts to apply ordi-
nary “procedural default” rules in a case such as this one,
thereby effectively barring a defendant from raising in
federal court a Convention-violation claim that he failed to
assert in the state courts in a timely fashion. The Court
also said that a defendant claiming a violation would not
likely prevail unless he also showed that “the violation
had an effect on the trial.” Id., at 377. But, say Torres
and Mexico, the ICJ, in its subsequent LaGrand decision,
interpreted the Convention to the contrary. They add that
this later ICJ decision authoritatively interprets the Con-
vention, which in turn has become part of domestic law,
and for that reason binds the Court.
For one thing, Article VI of the Constitution specifies
that (along with the Constitution and federal laws) “all
Treaties made, or which shall be made, under the Author-
ity of the United States, shall be the supreme Law of the
Land.”
For another, lower courts have held that the Convention
is self-executing, at least in the sense that its provisions
automatically become part of the law of the United States
without additional congressional legislation. E.g., United
States v. Torres-Del Muro, 58 F. Supp. 2d 931, 932 (CD Ill.
1999) (noting that “the treaty is ‘self-executing’ in the
sense that there is no need for enabling legislation for the
Convention to have the force of law”). Indeed, the United
States itself has taken that position. See S. Exec. Rep. No.
91–9, App. p. 5 (1969) (statement of State Department
Deputy Legal Adviser J. Edward Lyerly) (testifying at a
Senate hearing prior to ratification that the treaty is
“entirely self-executive and does not require any imple-
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BREYER, J., dissenting

menting or complementing legislation”).

Moreover, the ICJ in LaGrand held or stated the fol-
lowing: First, the Convention “creates individual rights.”
And the “ ‘laws and regulations’ ” of the United States,
including the rules of criminal law and procedure, “ ‘must
enable full effect to be given to the purposes for which’ ”
those “ ‘rights’ ” of the arrested foreign national “ ‘are in-
tended.’ ” 2001 I. C. J. 104, ¶¶77, 86–89 (rejecting the
United States’ arguments to the contrary); Vienna Con-
vention, Art. 36, ¶2.
Second, the Convention prohibits the United States
from implementing a State’s “ ‘procedural default’ rule” if
that rule prevents “the detained individual” from chal-
lenging “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.’ ” LaGrand, supra, ¶90. The courts of the
United States, in relying upon such a rule in the LaGrand
case, violated the Convention. ¶¶90–91; see also ¶60
(stating that the United States may not rely upon defen-
dants’ failure to raise their Convention claim until the
federal habeas proceeding, “as it was the United States
itself which had failed to carry out its obligation under the
Convention to inform” them).
Third, it “is immaterial for the purposes of the present
case [i.e., LaGrand] whether” the defendants, had they
been informed of their Convention rights, “would have
sought consular assistance,” whether the foreign nation
“would have rendered such assistance,” or even “whether a
different verdict would have been rendered.” ¶74. Rather,
it was “sufficient that the Convention conferred these
rights,” and that a nation and its nationals “were in effect
prevented by the breach of the United States from exer-
cising [these rights], had they so chosen.” Ibid. In addi-
tion, “an apology is not sufficient . . . where foreign na-
tionals have not been advised without delay of their rights
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BREYER, J., dissenting

. . . and have been . . . sentenced to severe penalties.”

¶123.
Finally, Article I of the Convention’s Optional Protocol
Concerning the Compulsory Settlement of Disputes, which
the United States has signed, says that “[disputes] arising
out of the interpretation or application of the Convention
shall lie within the compulsory jurisdiction of the Interna-
tional Court of Justice.” 21 U. S. T., at 326, T. I. A. S. No.
6820.

Torres and Mexico argue (1) that, in light of this last

mentioned Protocol, the ICJ’s interpretation of the Con-
vention is authoritative, including its determination that
the Convention creates “individual rights”; (2) that, since
the Convention is self-executing, the ICJ’s interpretation
is part of the law of the United States; and (3) that, given
the ICJ’s holdings in LaGrand, Torres can enforce his
Vienna Convention rights by demanding an appropriate
remedy, state-law procedural bars or lack of prejudice
notwithstanding.
III
Torres and Mexico go on to point out that Mexico has
asked the International Court of Justice to determine
whether the United States has violated the Convention
in its treatment of Torres and certain other similarly sit-
uated criminal defendants. See Case Concerning Avena
and other Mexican Nationals (Mex. v. U. S.), 2003 I. C. J.
___ (Application of Jan. 9), http://www.icj-cij.org/icjwww/
idocket/imus/imusorder/imus_iapplication_20030109.PDF.
They note that the ICJ, in a preliminary order in Mexico’s
case, wrote that the International “Court, Unanimously,
. . . Indicates the following provisional measures: (a) The
United States of America shall take all measures neces-
sary to ensure that . . . Mr. Osvaldo Torres Aguilera [sic]
[is] not executed pending final judgment in these pro-
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BREYER, J., dissenting

ceedings.” Provisional Measures Order ¶59 (emphasis in

original). The ICJ held in LaGrand that such an order
has “binding effect” and “create[s] a legal obligation for the
United States.” 2001 I. C. J. 104, ¶¶109–110. Mexico and
Torres contend that, since the Convention is self-
executing, it has become part of domestic law and one
that, for that reason and for reasons of comity, we should
honor. And since Oklahoma might set an execution date
within 60 days of our denying certiorari, prior to a final
decision by the ICJ, they ask us to defer consideration of
Torres’ petition.
IV
On the basis of the briefs so far filed in this case, Torres’
and Mexico’s arguments seem substantial. Cf. ante, at ___
(Opinion of STEVENS, J.); Breard, 523 U. S., at 380–381
(BREYER, J., dissenting). If so, there is a realistic possi-
bility that this is a case we should hear. I note, however,
that the United States has not filed a brief directly ad-
dressing the issues Torres has raised in this case, nor has
any group of individuals expert in the subject of interna-
tional law. The United States has filed a brief in opposi-
tion in the related cases Ortiz v. United States, No. 02–
11188, and Sinesterra v. United States, No. 03–5286, in
which it argues, inter alia, that “the ICJ does not exercise
any judicial power of the United States, which is vested
exclusively by the Constitution in the United States
federal courts.” Brief in Opposition 18. While this is
undeniably correct as a general matter, it fails to address
the question whether the ICJ has been granted the
authority, by means of treaties to which the United States
is a party, to interpret the rights conferred by the Vienna
Convention. The answer to Lord Ellenborough’s famous
rhetorical question, “Can the Island of Tobago pass a law
to bind the rights of the whole world?” may well be yes,
where the world has conferred such binding authority
through treaty. See Buchanan v. Rucker, 9 East 192, 103
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BREYER, J., dissenting

Buchanan v. Rucker, 9 East 192, 103 Eng. Rep. 546 (K. B.

1808). It is this kind of authority that Torres and Mexico
argue the United States has granted to the ICJ when it
comes to interpreting the rights and obligations set forth
in the Vienna Convention.
Given the international implications of the issues
raised, I believe further information, analysis, and consid-
eration are necessary. Depending on how the ICJ decides
Mexico’s related case against the United States, and sub-
ject to further briefing in light of that decision, I may well
vote to grant certiorari in this case. Consequently I would
defer consideration of this petition.