Sanchez-Llamas v. Oregon , 548 U.S. 331 ( 2006 )


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  • (Slip Opinion)              OCTOBER TERM, 2005                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
                      SANCHEZ-LLAMAS v. OREGON
    
            CERTIORARI TO THE SUPREME COURT OF OREGON
    
        No. 04–10566.       Argued March 29, 2006—Decided June 28, 2006*
    Article 36(1)(b) of the Vienna Convention on Consular Relations pro
      vides that if a person detained by a foreign country “so requests, the
      competent authorities of the receiving State shall, without delay, in
      form the consular post of the sending State” of such detention, and
      “inform the [detainee] of his rights under this sub-paragraph.” Arti
      cle 36(2) specifies: “The rights referred to in paragraph 1 . . . shall be
      exercised in conformity with the laws and regulations of the receiving
      State, subject to the proviso . . . that the said laws . . . must enable
      full effect to be given to the purposes for which the rights accorded
      under this Article are intended.” Along with the Convention, the
      United States ratified the Optional Protocol Concerning the Compul
      sory Settlement of Disputes, which provides: “Disputes arising out of
      the . . . Convention shall lie within the compulsory jurisdiction of the
      International Court of Justice [(ICJ)].” The United States withdrew
      from the Protocol on March 7, 2005.
         Petitioner in No. 04–10566, Moises Sanchez-Llamas, is a Mexican
      national. When he was arrested after an exchange of gunfire with
      police, officers did not inform him that he could ask to have the Mexi
      can Consulate notified of his detention. During interrogation, he
      made incriminating statements regarding the shootout. Before his
      trial for attempted murder and other offenses, Sanchez-Llamas
      moved to suppress those statements on the ground, inter alia, that
      the authorities had failed to comply with Article 36. The state court
      denied that motion and Sanchez-Llamas was convicted and sentenced
      to prison, and the Oregon Court of Appeals affirmed. The State Su
    ——————
      * Together with No. 05–51, Bustillo v. Johnson, Director, Virginia
    Department of Corrections, on certiorari to the Supreme Court of Vir
    ginia.
    2                    SANCHEZ-LLAMAS v. OREGON
    
                                      Syllabus
    
        preme Court also affirmed, concluding that Article 36 does not create
        rights to consular access or notification that a detained individual
        can enforce in a judicial proceeding.
           Petitioner in No. 05–51, Mario Bustillo, a Honduran national, was
        arrested and charged with murder, but police never informed him
        that he could request that the Honduran Consulate be notified of his
        detention. He was convicted and sentenced to prison, and his convic
        tion and sentence were affirmed on appeal. He then filed a habeas
        petition in state court arguing, for the first time, that authorities had
        violated his right to consular notification under Article 36. The court
        dismissed that claim as procedurally barred because he had failed to
        raise it at trial or on appeal. The Virginia Supreme Court found no
        reversible error.
    Held: Even assuming without deciding that the Convention creates
     judicially enforceable rights, suppression is not an appropriate rem
     edy for a violation, and a State may apply its regular procedural de
     fault rules to Convention claims. Pp. 7–25.
         (a) Because petitioners are not in any event entitled to relief, the
     Court need not resolve whether the Convention grants individuals
     enforceable rights, but assumes, without deciding, that Article 36
     does so. Pp. 7–8.
         (b) Neither the Convention itself nor this Court’s precedents apply
     ing the exclusionary rule support suppression of a defendant’s state
     ments to police as a remedy for an Article 36 violation.
         The Convention does not mandate suppression or any other specific
     remedy, but expressly leaves Article 36’s implementation to domestic
     law: Article 36 rights must “be exercised in conformity with the laws
     . . . of the receiving State.” Art. 36(2). Sanchez-Llamas’ argument
     that suppression is appropriate under United States law and should
     be required under the Court’s authority to develop remedies for the
     enforcement of federal law in state-court criminal proceedings is re
     jected. “It is beyond dispute that [this Court does] not hold a super
     visory power over the [state] courts.” Dickerson v. United States, 
    530 U.S. 428
    , 438. The exclusionary rule cases on which Sanchez-Llamas
     principally relies are inapplicable because they rest on the Court’s
     supervisory authority over federal courts.
         The Court’s authority to create a judicial remedy applicable in
     state court must therefore lie, if anywhere, in the treaty itself.
     Where a treaty provides for a particular judicial remedy, courts must
     apply it as a requirement of federal law. Cf., e.g., United States v.
     Giordano, 
    416 U.S. 505
    , 524–525. But where a treaty does not pro
     vide a particular remedy, either expressly or implicitly, it is not for
     the federal courts to impose one on the States through lawmaking of
     their own. Even if the “full effect” language of Article 36(2) implicitly
                       Cite as: 548 U. S. ____ (2006)                     3
    
                                  Syllabus
    
    requires a judicial remedy, as Sanchez-Llamas claims, that Article
    equally requires that Article 36(1) rights be exercised in conformity
    with domestic law. Under domestic law, the exclusionary rule is not
    a remedy this Court applies lightly. It has been used primarily to de
    ter certain Fourth and Fifth Amendment violations, including, e.g.,
    unconstitutional searches and seizures, Mapp v. Ohio, 
    367 U.S. 643
    ,
    655–657, and confessions exacted in violation of the right against
    compelled self-incrimination or due process, Dickerson, supra, at 435.
    In contrast, Article 36 has nothing to do with searches or interroga
    tions and, indeed, does not guarantee defendants any assistance at
    all. It secures for foreign nationals only the right to have their consu
    late informed of their arrest or detention—not to have their consulate
    intervene, or to have police cease their investigation pending any
    such notice or intervention. Moreover, the failure to inform a defen
    dant of his Article 36 rights is unlikely, with any frequency, to pro
    duce unreliable confessions, see Watkins v. Sowders, 
    449 U.S. 341
    ,
    347, or to give the police any practical advantage in obtaining in
    criminating evidence, see Elkins v. United States, 
    364 U.S. 206
    , 217.
    Suppression would also be a vastly disproportionate remedy for an
    Article 36 violation. The interests Sanchez-Llamas claims Article 36
    advances are effectively protected by other constitutional and statu
    tory requirements, including the right to an attorney and to protec
    tion against compelled self-incrimination. Finally, suppression is not
    the only means of vindicating Article 36 rights. For example, diplo
    matic avenues—the primary means of enforcing the Vienna Conven
    tion—remain open. Pp. 8–15.
       (c) States may subject Article 36 claims to the same procedural de
    fault rules that apply generally to other federal-law claims.
       This question is controlled by the Court’s holding in Breard v.
    Greene, 
    523 U.S. 371
    , 375, that the petitioner’s failure to raise an Ar
    ticle 36 claim in state court prevented him from having the claim
    heard in a subsequent federal habeas proceeding. Bustillo’s two rea
    sons why Breard does not control are rejected.
       First, he argues that Breard’s procedural default holding was un
    necessary to the result because the petitioner there could not demon
    strate prejudice from the default and because, in any event, the later
    enacted Antiterrorism and Effective Death Penalty Act of 1996 su
    perseded any right the petitioner had under the Vienna Convention
    to have his claim heard on collateral review. Resolution of the proce
    dural default question, however, was the principal reason for denying
    the Breard petitioner’s claim, and the discussion of the issue occupied
    the bulk of the Court’s reasoning. See 523 U. S., at 375–377. It is no
    answer to argue that the procedural default holding was unnecessary
    simply because the petitioner had several other ways to lose.
    4                     SANCHEZ-LLAMAS v. OREGON
    
                                       Syllabus
    
           Second, Bustillo asserts that since Breard, the ICJ’s LaGrand and
        Avena decisions have interpreted the Convention to preclude the ap
        plication of procedural default rules to Article 36 claims. Although
        the ICJ’s interpretation deserves “respectful consideration,” Breard,
        supra, at 375, it does not compel the Court to reconsider Breard’s un
        derstanding of the Convention. “The judicial Power of the United
        States” is “vested in one supreme Court . . . and . . . inferior courts.”
        U. S. Const., Art. III, §1. That “power . . . extend[s] to . . . treaties,”
        Art. III, §2, and includes the duty “to say what the law is,” Marbury
        v. Madison, 1 Cranch 137, 177. If treaties are to be given effect as
        federal law, determining their meaning as a matter of federal law “is
        emphatically the province and duty of the judicial department,”
        headed by the “one supreme Court.” Ibid. Nothing in the ICJ’s
        structure or purpose suggests that its interpretations were intended
        to be binding on U. S. courts. Even according “respectful considera
        tion,” the ICJ’s interpretation cannot overcome the plain import of
        Article 36(2), which states that the rights it implements “shall be ex
        ercised in conformity with the laws . . . of the receiving State.” In the
        United States, this means that the rule of procedural default—which
        applies even to claimed violations of our own Constitution, see Engle
        v. Isaac, 
    456 U.S. 107
    , 129—applies also to Vienna Convention
        claims. Bustillo points to nothing in the drafting history of Article 36
        or in the contemporary practice of other Convention signatories that
        undermines this conclusion. LaGrand’s conclusion that applying the
        procedural default rule denies “full effect” to the purposes of Article
        36, by preventing courts from attaching legal significance to an Arti
        cle 36 violation, is inconsistent with the basic framework of an adver
        sary system. Such a system relies chiefly on the parties to raise sig
        nificant issues and present them to the courts in the appropriate
        manner at the appropriate time for adjudication. See Castro v.
        United States, 
    540 U.S. 375
    , 386. Procedural default rules generally
        take on greater importance in an adversary system than in the sort of
        magistrate-directed, inquisitorial legal system characteristic of many
        of the other Convention signatories. Under the ICJ’s reading of “full
        effect,” Article 36 claims could trump not only procedural default
        rules, but any number of other rules requiring parties to present
        their legal claims at the appropriate time for adjudication, such as
        statutes of limitations and prohibitions against filing successive ha
        beas petitions. This sweeps too broadly, for it reads the “full effect”
        proviso in a way that leaves little room for the clear instruction in
        Article 36(2) that Article 36 rights “be exercised in conformity with
        the laws . . . of the receiving State.” A comparison with a suspect’s
        rights under Miranda v. Arizona, 
    384 U.S. 436
    , disposes of Bustillo’s
        “full effect” claim. Although the failure to inform defendants of their
                         Cite as: 548 U. S. ____ (2006)                    5
    
                                    Syllabus
    
      right to consular notification may prevent them from becoming aware
      of their Article 36 rights and asserting them at trial, precisely the
      same thing is true of Miranda rights. Nevertheless, if a defendant
      fails to raise his Miranda claim at trial, procedural default rules may
      bar him from raising the claim in a subsequent postconviction pro
      ceeding. Wainwright v. Sykes, 
    433 U.S. 72
    , 87. Bustillo’s attempt to
      analogize an Article 36 claim to a claim under Brady v. Maryland,
      
    373 U.S. 83
    , that the prosecution failed to disclose exculpatory evi
      dence is inapt. Finally, his argument that Article 36 claims are most
      appropriately raised post-trial or on collateral review under Massaro
      v. United States, 
    538 U.S. 500
    , is rejected. See Dickerson, supra, at
      438. Pp. 15–25.
         (d) The Court’s holding in no way disparages the Convention’s im
      portance. It is no slight to the Convention to deny petitioners’ claims
      under the same principles this Court would apply to claims under an
      Act of Congress or the Constitution itself. P. 25.
    No. 04–10566, 338 Ore. 267, 
    108 P.3d 573
    , and No. 05–51, affirmed.
    
       ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
    KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed an opin
    ion concurring in the judgment. BREYER, J., filed a dissenting opinion,
    in which STEVENS and SOUTER, JJ., joined, and in which GINSBURG, J.,
    joined as to Part II.
                            Cite as: 548 U. S. ____ (2006)                              1
    
                                 Opinion of the Court
    
         NOTICE: This opinion is subject to formal revision before publication in the
         preliminary print of the United States Reports. Readers are requested to
         notify the Reporter of Decisions, Supreme Court of the United States, Wash
         ington, D. C. 20543, of any typographical or other formal errors, in order
         that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                       _________________
    
                              Nos. 04–10566 and 05–51
                                       _________________
    
    
         MOISES SANCHEZ-LLAMAS, PETITIONER
    04–10566             v.
                     OREGON
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           OREGON
    
    
               MARIO A. BUSTILLO, PETITIONER
    05–51                    v.
            GENE M. JOHNSON, DIRECTOR, VIRGINIA
               DEPARTMENT OF CORRECTIONS
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           VIRGINIA
    
                                     [June 28, 2006] 
    
    
       CHIEF JUSTICE ROBERTS delivered the opinion of the
    Court.
       Article 36 of the Vienna Convention on Consular Rela
    tions (Vienna Convention or Convention), Apr. 24, 1963,
    [1970] 21 U. S. T. 77, 100–101, T. I. A. S. No. 6820, ad
    dresses communication between an individual and his
    consular officers when the individual is detained by au
    thorities in a foreign country. These consolidated cases
    concern the availability of judicial relief for violations of
    Article 36. We are confronted with three questions. First,
    does Article 36 create rights that defendants may invoke
    against the detaining authorities in a criminal trial or in a
    postconviction proceeding? Second, does a violation of
    Article 36 require suppression of a defendant’s statements
    2                  SANCHEZ-LLAMAS v. OREGON
    
                              Opinion of the Court
    
    to police? Third, may a State, in a postconviction proceed
    ing, treat a defendant’s Article 36 claim as defaulted
    because he failed to raise the claim at trial? We conclude,
    even assuming the Convention creates judicially enforce
    able rights, that suppression is not an appropriate remedy
    for a violation of Article 36, and that a State may apply its
    regular rules of procedural default to Article 36 claims.
    We therefore affirm the decisions below.
                                  I
    
                                  A
    
       The Vienna Convention was drafted in 1963 with the
    purpose, evident in its preamble, of “contribut[ing] to the
    development of friendly relations among nations, irrespec
    tive of their differing constitutional and social systems.”
    21 U. S. T., at 79. The Convention consists of 79 articles
    regulating various aspects of consular activities. At pre
    sent, 170 countries are party to the Convention. The
    United States, upon the advice and consent of the Senate,
    ratified the Convention in 1969. Id., at 77.
       Article 36 of the Convention concerns consular officers’
    access to their nationals detained by authorities in a
    foreign country. The article provides that “if he so re
    quests, the competent authorities of the receiving State
    shall, without delay, inform the consular post of the send
    ing State if, within its consular district, a national of that
    State is arrested or committed to prison or to custody
    pending trial or is detained in any other manner.” Art.
    36(1)(b), id., at 101.1 In other words, when a national of
    ——————
        1 In
           its entirety, Article 36 of the Vienna Convention states:
      “1. With a view to facilitating the exercise of consular functions
    relating to nationals of the sending State:
      “(a) consular officers shall be free to communicate with nationals of
    the sending State and to have access to them. Nationals of the sending
    State shall have the same freedom with respect to communication with
    and access to consular officers of the sending State;
      “(b) if he so requests, the competent authorities of the receiving State
                         Cite as: 548 U. S. ____ (2006)                    3
    
                              Opinion of the Court
    
    one country is detained by authorities in another, the
    authorities must notify the consular officers of the de
    tainee’s home country if the detainee so requests. Article
    36(1)(b) further states that “[t]he said authorities shall
    inform the person concerned [i.e., the detainee] without
    delay of his rights under this sub-paragraph.” Ibid. The
    Convention also provides guidance regarding how these
    requirements, and the other requirements of Article 36,
    are to be implemented:
         “The rights referred to in paragraph 1 of this Article
         shall be exercised in conformity with the laws and
         regulations of the receiving State, subject to the pro
         viso, however, that the said laws and regulations
         must enable full effect to be given to the purposes for
         which the rights accorded under this Article are in
         tended.” Art. 36(2), ibid.
    
    ——————
    shall, without delay, inform the consular post of the sending State if,
    within its consular district, a national of that State is arrested or
    committed to prison or to custody pending trial or is detained in any
    other manner. Any communication addressed to the consular post by
    the person arrested, in prison, custody or detention shall also be for
    warded by the said authorities without delay. The said authorities
    shall inform the person concerned without delay of his rights under this
    sub-paragraph;
       “(c) consular officers shall have the right to visit a national of the
    sending State who is in prison, custody or detention, to converse and
    correspond with him and to arrange for his legal representation. They
    shall also have the right to visit any national of the sending State who
    is in prison, custody or detention in their district in pursuance of a
    judgment. Nevertheless, consular officers shall refrain from taking
    action on behalf of a national who is in prison, custody or detention if
    he expressly opposes such action.
       “2. The rights referred to in paragraph 1 of this Article shall be
    exercised in conformity with the laws and regulations of the receiving
    State, subject to the proviso, however, that the said laws and regula
    tions must enable full effect to be given to the purposes for which the
    rights accorded under this Article are intended.” 21 U. S. T., at 100–
    101.
    4               SANCHEZ-LLAMAS v. OREGON
    
                         Opinion of the Court
    
       Along with the Vienna Convention, the United States
    ratified the Optional Protocol Concerning the Compulsory
    Settlement of Disputes (Optional Protocol or Protocol),
    Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820.
    The Optional Protocol provides that “[d]isputes arising out
    of the interpretation or application of the Convention shall
    lie within the compulsory jurisdiction of the International
    Court of Justice [(ICJ)],” and allows parties to the Protocol
    to bring such disputes before the ICJ. Id., at 326. The
    United States gave notice of its withdrawal from the
    Optional Protocol on March 7, 2005. Letter from Condo
    leezza Rice, Secretary of State, to Kofi A. Annan, Secre
    tary-General of the United Nations.
                                 B
       Petitioner Moises Sanchez-Llamas is a Mexican na
    tional. In December 1999, he was involved in an exchange
    of gunfire with police in which one officer suffered a gun
    shot wound in the leg. Police arrested Sanchez-Llamas
    and gave him warnings under Miranda v. Arizona, 
    384 U.S. 436
     (1966), in both English and Spanish. At no time,
    however, did they inform him that he could ask to have
    the Mexican Consulate notified of his detention.
       Shortly after the arrest and Miranda warnings, police
    interrogated Sanchez-Llamas with the assistance of an
    interpreter. In the course of the interrogation, Sanchez-
    Llamas made several incriminating statements regarding
    the shootout with police. He was charged with attempted
    aggravated murder, attempted murder, and several other
    offenses. Before trial, Sanchez-Llamas moved to suppress
    the statements he made to police. He argued that sup
    pression was warranted because the statements were
    made involuntarily and because the authorities had failed
    to comply with Article 36 of the Vienna Convention. The
    trial court denied the motion. The case proceeded to trial,
    and Sanchez-Llamas was convicted and sentenced to 201⁄2
                     Cite as: 548 U. S. ____ (2006)            5
    
                         Opinion of the Court
    
    years in prison.
      He appealed, again arguing that the Vienna Convention
    violation required suppression of his statements. The
    Oregon Court of Appeals affirmed. Judgt. order reported
    at 191 Ore. App. 399, 
    84 P.3d 1133
     (2004). The Oregon
    Supreme Court also affirmed, concluding that Article 36
    “does not create rights to consular access or notification
    that are enforceable by detained individuals in a judicial
    proceeding.” 338 Ore. 267, 276, 
    108 P.3d 573
    , 578 (2005)
    (en banc). We granted certiorari. 546 U. S. ___ (2005).
                                   C
      Petitioner Mario Bustillo, a Honduran national, was
    with several other men at a restaurant in Springfield,
    Virginia, on the night of December 10, 1997. That eve
    ning, outside the restaurant, James Merry was struck in
    the head with a baseball bat as he stood smoking a ciga
    rette. He died several days later. Several witnesses at the
    scene identified Bustillo as the assailant. Police arrested
    Bustillo the morning after the attack and eventually
    charged him with murder. Authorities never informed
    him that he could request to have the Honduran Consu
    late notified of his detention.
      At trial, the defense pursued a theory that another man,
    known as “Sirena,” was responsible for the attack. Two
    defense witnesses testified that Bustillo was not the killer.
    One of the witnesses specifically identified the attacker as
    Sirena. In addition, a third defense witness stated that
    she had seen Sirena on a flight to Honduras the day after
    the victim died. In its closing argument before the jury,
    the prosecution dismissed the defense theory about Si
    rena. See App. in No. 05–51, p. 21 (“This whole Sirena
    thing, I don’t want to dwell on it too much. It’s very con
    venient that Mr. Sirena apparently isn’t available”). A
    jury convicted Bustillo of first-degree murder, and he was
    sentenced to 30 years in prison. His conviction and sen
    6                  SANCHEZ-LLAMAS v. OREGON
    
                              Opinion of the Court
    
    tence were affirmed on appeal.
       After his conviction became final, Bustillo filed a peti
    tion for a writ of habeas corpus in state court. There, for
    the first time, he argued that authorities had violated his
    right to consular notification under Article 36 of the Vi
    enna Convention. He claimed that if he had been advised
    of his right to confer with the Honduran Consulate, he
    “would have done so without delay.” App. in No. 05–51,
    p. 60. Moreover, the Honduran Consulate executed an
    affidavit stating that “it would have endeavoured to help
    Mr. Bustillo in his defense” had it learned of his detention
    prior to trial. Id., at 74. Bustillo insisted that the consu
    late could have helped him locate Sirena prior to trial. His
    habeas petition also argued, as part of a claim of ineffective
    assistance of counsel, that his attorney should have advised
    him of his right to notify the Honduran Consulate of his
    arrest and detention.2
       The state habeas court dismissed Bustillo’s Vienna
    Convention claim as “procedurally barred” because he had
    failed to raise the issue at trial or on appeal. App. to Pet.
    for Cert. in No. 05–51, p. 43a. The court also denied Bust
    illo’s claim of ineffective assistance of counsel, ruling that
    
    ——————
      2 Bustillo’s habeas petition also presented newly acquired evidence
    
    that tended to cast doubt on his conviction. Most notably, he produced
    a secretly recorded videotape in which Sirena admitted killing Merry
    and stated that Bustillo had been wrongly convicted. App. in No. 05–
    51, pp. 38, 54. In addition, Bustillo argued that the prosecution vio
    lated Brady v. Maryland, 
    373 U.S. 83
     (1963), by failing to disclose that
    on the night of the crime, police had questioned a man named “Julio C.
    Osorto,” who is now known to be the same man as “Sirena.” The police
    report concerning the encounter stated that Sirena appeared to have
    ketchup on his pants. Bustillo contends that these stains might in fact
    have been the victim’s blood. The Commonwealth disputes this. The
    state habeas court found “no evidence of any transfer of the victim’s
    blood to the assailant,” and concluded that the undisclosed encounter
    between police and Sirena was not material under Brady. App. in No.
    05–51, p. 167.
                     Cite as: 548 U. S. ____ (2006)           7
    
                         Opinion of the Court
    
    his belated claim that counsel should have informed him
    of his Vienna Convention rights was barred by the appli
    cable statute of limitations and also meritless under
    Strickland v. Washington, 
    466 U.S. 668
     (1984). App. in No.
    05–51, p. 132. In an order refusing Bustillo’s petition for
    appeal, the Supreme Court of Virginia found “no reversi
    ble error” in the habeas court’s dismissal of the Vienna
    Convention claim. App. to Pet. for Cert. in No. 05–51, p.
    1a. We granted certiorari to consider the Vienna Conven
    tion issue. 546 U. S. ___ (2005).
                                   II
       We granted certiorari as to three questions presented in
    these cases: (1) whether Article 36 of the Vienna Conven
    tion grants rights that may be invoked by individuals in a
    judicial proceeding; (2) whether suppression of evidence is
    a proper remedy for a violation of Article 36; and (3)
    whether an Article 36 claim may be deemed forfeited
    under state procedural rules because a defendant failed to
    raise the claim at trial.
       As a predicate to their claims for relief, Sanchez-Llamas
    and Bustillo each argue that Article 36 grants them an
    individually enforceable right to request that their consu
    lar officers be notified of their detention, and an accompa
    nying right to be informed by authorities of the availabil
    ity of consular notification. Respondents and the United
    States, as amicus curiae, strongly dispute this contention.
    They argue that “there is a presumption that a treaty will
    be enforced through political and diplomatic channels,
    rather than through the courts.” Brief for United States 11;
    ibid. (quoting Head Money Cases, 
    112 U.S. 580
    , 598 (1884)
    (a treaty “ ‘is primarily a compact between independent
    nations,’ ” and “ ‘depends for the enforcement of its provi
    sions on the interest and the honor of the governments
    which are parties to it’ ”)). Because we conclude that
    Sanchez-Llamas and Bustillo are not in any event entitled
    8               SANCHEZ-LLAMAS v. OREGON
    
                         Opinion of the Court
    
    to relief on their claims, we find it unnecessary to resolve
    the question whether the Vienna Convention grants indi
    viduals enforceable rights. Therefore, for purposes of
    addressing petitioners’ claims, we assume, without decid
    ing, that Article 36 does grant Bustillo and Sanchez-
    Llamas such rights.
                                   A
       Sanchez-Llamas argues that the trial court was re
    quired to suppress his statements to police because au
    thorities never told him of his rights under Article 36. He
    refrains, however, from arguing that the Vienna Conven
    tion itself mandates suppression. We think this a wise
    concession. The Convention does not prescribe specific
    remedies for violations of Article 36. Rather, it expressly
    leaves the implementation of Article 36 to domestic law:
    Rights under Article 36 are to “be exercised in conformity
    with the laws and regulations of the receiving State.” Art.
    36(2), 21 U. S. T., at 101. As far as the text of the Conven
    tion is concerned, the question of the availability of the
    exclusionary rule for Article 36 violations is a matter of
    domestic law.
       It would be startling if the Convention were read to
    require suppression. The exclusionary rule as we know it
    is an entirely American legal creation. See Bivens v. Six
    Unknown Fed. Narcotics Agents, 
    403 U.S. 388
    , 415 (1971)
    (Burger, C. J., dissenting) (the exclusionary rule “is unique
    to American jurisprudence”). More than 40 years after the
    drafting of the Convention, the automatic exclusionary
    rule applied in our courts is still “universally rejected” by
    other countries. Bradley, Mapp Goes Abroad, 52 Case W.
    Res. L. Rev. 375, 399–400 (2001); see also Zicherman v.
    Korean Air Lines Co., 
    516 U.S. 217
    , 226 (1996) (postratifica
    tion understanding “traditionally considered” as an aid to
    treaty interpretation). It is implausible that other signato
    ries to the Convention thought it to require a remedy that
                         Cite as: 548 U. S. ____ (2006)                    9
    
                              Opinion of the Court
    
    nearly all refuse to recognize as a matter of domestic law.
    There is no reason to suppose that Sanchez-Llamas would
    be afforded the relief he seeks here in any of the other 169
    countries party to the Vienna Convention.3
      For good reason then, Sanchez-Llamas argues only that
    suppression is required because it is the appropriate
    remedy for an Article 36 violation under United States
    law, and urges us to require suppression for Article 36
    violations as a matter of our “authority to develop reme
    dies for the enforcement of federal law in state-court
    criminal proceedings.” Reply Brief for Petitioner in No.
    ——————
       3 See Declaration of Ambassador Maura A. Harty, Annex 4 to
    
    Counter-Memorial of the United States in Case Concerning Avena and
    other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, p. A386,
    ¶41 (Oct. 25, 2003) (Harty Declaration) (“With the possible exception of
    Brazil, we are not aware of a single country that has a law, regulation
    or judicial decision requiring that a statement taken before consular
    notification and access automatically must be excluded from use at
    trial” (footnote omitted)). According to the Harty Declaration, the
    American Embassy in Brazil has been advised that Brazil considers
    consular notification to be a right under the Brazilian Constitution.
    Neither the declaration nor the parties point to a case in which a
    Brazilian court has suppressed evidence because of a violation of that
    right.
       In a few cases, as several amici point out, the United Kingdom and
    Australia appear to have applied a discretionary rule of exclusion for
    violations of domestic statutes implementing the Vienna Convention.
    See Brief for United States as Amicus Curiae 26, and n. 9; Brief for
    National Association of Criminal Defense Lawyers as Amicus Curiae
    16–23. The dissent similarly relies on two cases from Australia, post,
    at 32 (opinion of BREYER, J.) (citing Tan Seng Kiah v. Queen (2001) 
    160 F. L
    . R. 26 (Ct. Crim. App. N. Terr.) and Queen v. Tan [2001]
    W. A. S. C. 275 (Sup. Ct. W. Australia in Crim.)), where consular
    notification rights are governed by a domestic statute that provides
    rights beyond those required by Article 36 itself. See Crimes Act, No.
    12, 1914, §23p (Australia). The Canadian case on which the dissent
    relies, post, at 32, denied suppression, and concerned only the court’s
    general discretionary authority to exclude a confession “whose admis
    sion would adversely affect the fairness of an accused’s trial.” Queen v.
    Partak [2001] 
    160 Cow. C
    . C. 3d 553, ¶61 (Ont. Super. Ct. of J.).
    10              SANCHEZ-LLAMAS v. OREGON
    
                          Opinion of the Court
    
    04–10566, p. 11.
      For their part, the State of Oregon and the United
    States, as amicus curiae, contend that we lack any such
    authority over state-court proceedings. They argue that
    our cases suppressing evidence obtained in violation of
    federal statutes are grounded in our supervisory authority
    over the federal courts—an authority that does not extend
    to state-court proceedings. Brief for Respondent in No.
    04–10566, pp. 42–43; Brief for United States 32–34; see
    McNabb v. United States, 
    318 U.S. 332
    , 341 (1943) (sup
    pressing evidence for violation of federal statute requiring
    persons arrested without a warrant to be promptly pre
    sented to a judicial officer); Mallory v. United States, 
    354 U.S. 449
     (1957) (suppressing evidence for violation of simi
    lar requirement of Fed. Rule Crim. Proc. 5(a)); Miller v.
    United States, 
    357 U.S. 301
     (1958) (suppressing evidence
    obtained incident to an arrest that violated 
    18 U.S. C
    .
    §3109). Unless required to do so by the Convention itself,
    they argue, we cannot direct Oregon courts to exclude
    Sanchez-Llamas’ statements from his criminal trial.
      To the extent Sanchez-Llamas argues that we should
    invoke our supervisory authority, the law is clear: “It is
    beyond dispute that we do not hold a supervisory power
    over the courts of the several States.” Dickerson v. United
    States, 
    530 U.S. 428
    , 438 (2000); see also Smith v. Phillips,
    
    455 U.S. 209
    , 221 (1982) (“Federal courts hold no supervi
    sory authority over state judicial proceedings and may
    intervene only to correct wrongs of constitutional dimen
    sion”). The cases on which Sanchez-Llamas principally
    relies are inapplicable in light of the limited reach of our
    supervisory powers. Mallory and McNabb plainly rest on
    our supervisory authority.        Mallory, supra, at 453;
    McNabb, supra, at 340. And while Miller is not clear
    about its authority for requiring suppression, we have
    understood it to have a similar basis. See Ker v. Califor
    nia, 
    374 U.S. 23
    , 31 (1963).
                       Cite as: 548 U. S. ____ (2006)             11
    
                           Opinion of the Court
    
       We also agree with the State of Oregon and the United
    States that our authority to create a judicial remedy appli
    cable in state court must lie, if anywhere, in the treaty itself.
    Under the Constitution, the President has the power, “by
    and with the Advice and Consent of the Senate, to make
    Treaties.” Art. II, §2, cl. 2. The United States ratified the
    Convention with the expectation that it would be inter
    preted according to its terms. See Restatement (Third) of
    Foreign Relations Law of the United States §325(1) (1986)
    (“An international agreement is to be interpreted in good
    faith in accordance with the ordinary meaning to be given to
    its terms in their context and in the light of its object and
    purpose”). If we were to require suppression for Article 36
    violations without some authority in the Convention, we
    would in effect be supplementing those terms by enlarging
    the obligations of the United States under the Convention.
    This is entirely inconsistent with the judicial function. Cf.
    The Amiable Isabella, 
    6 Wheat. 1
    , 71 (1821) (Story, J.) (“[T]o
    alter, amend, or add to any treaty, by inserting any clause,
    whether small or great, important or trivial, would be on our
    part an usurpation of power, and not an exercise of judicial
    functions. It would be to make, and not to construe a
    treaty”).
       Of course, it is well established that a self-executing
    treaty binds the States pursuant to the Supremacy Clause,
    and that the States therefore must recognize the force of the
    treaty in the course of adjudicating the rights of litigants.
    See, e.g., Hauenstein v. Lynham, 
    100 U.S. 483
     (1880). And
    where a treaty provides for a particular judicial remedy,
    there is no issue of intruding on the constitutional pre
    rogatives of the States or the other federal branches.
    Courts must apply the remedy as a requirement of federal
    law. Cf. 
    18 U.S. C
    . §2515; United States v. Giordano, 
    416 U.S. 505
    , 524–525 (1974). But where a treaty does not
    provide a particular remedy, either expressly or implicitly, it
    is not for the federal courts to impose one on the States
    12              SANCHEZ-LLAMAS v. OREGON
    
                          Opinion of the Court
    
    through lawmaking of their own.
       Sanchez-Llamas argues that the language of the Con
    vention implicitly requires a judicial remedy because it
    states that the laws and regulations governing the exer
    cise of Article 36 rights “must enable full effect to be given
    to the purposes for which the rights . . . are intended,” Art.
    36(2), 21 U. S. T., at 101 (emphasis added). In his view,
    although “full effect” may not automatically require an
    exclusionary rule, it does require an appropriate judicial
    remedy of some kind. There is reason to doubt this inter
    pretation. In particular, there is little indication that
    other parties to the Convention have interpreted Article
    36 to require a judicial remedy in the context of criminal
    prosecutions. See Department of State Answers to Ques
    tions Posed by the First Circuit in United States v. Nai
    Fook Li, No. 97–2034 etc., p. A–9 (Oct. 15, 1999) (“We are
    unaware of any country party to the [Vienna Convention]
    that provides remedies for violations of consular notifica
    tion through its domestic criminal justice system”).
       Nevertheless, even if Sanchez-Llamas is correct that
    Article 36 implicitly requires a judicial remedy, the Con
    vention equally states that Article 36 rights “shall be
    exercised in conformity with the laws and regulations of
    the receiving State.” Art. 36(2), 21 U. S. T., at 101. Under
    our domestic law, the exclusionary rule is not a remedy we
    apply lightly. “[O]ur cases have repeatedly emphasized
    that the rule’s ‘costly toll’ upon truth-seeking and law
    enforcement objectives presents a high obstacle for those
    urging application of the rule.” Pennsylvania Bd. of Proba
    tion and Parole v. Scott, 
    524 U.S. 357
    , 364–365 (1998).
    Because the rule’s social costs are considerable, suppres
    sion is warranted only where the rule’s “ ‘remedial objec
    tives are thought most efficaciously served.’ ” United
    States v. Leon, 
    468 U.S. 897
    , 908 (1984) (quoting United
    States v. Calandra, 
    414 U.S. 338
    , 348 (1974)).
       We have applied the exclusionary rule primarily to deter
                      Cite as: 548 U. S. ____ (2006)             13
    
                          Opinion of the Court
    
    constitutional violations. In particular, we have ruled that
    the Constitution requires the exclusion of evidence ob
    tained by certain violations of the Fourth Amendment, see
    Taylor v. Alabama, 
    457 U.S. 687
    , 694 (1982) (arrests in
    violation of the Fourth Amendment); Mapp v. Ohio, 
    367 U.S. 643
    , 655–657 (1961) (unconstitutional searches and
    seizures), and confessions exacted by police in violation of
    the right against compelled self-incrimination or due proc
    ess, see Dickerson, 530 U. S., at 435 (failure to give Miranda
    warnings); Payne v. Arkansas, 
    356 U.S. 560
    , 568 (1958)
    (involuntary confessions).
       The few cases in which we have suppressed evidence for
    statutory violations do not help Sanchez-Llamas. In those
    cases, the excluded evidence arose directly out of statutory
    violations that implicated important Fourth and Fifth
    Amendment interests. McNabb, for example, involved the
    suppression of incriminating statements obtained during a
    prolonged detention of the defendants, in violation of a
    statute requiring persons arrested without a warrant to be
    promptly presented to a judicial officer. We noted that the
    statutory right was intended to “avoid all the evil implica
    tions of secret interrogation of persons accused of crime,”
    318 U. S., at 344, and later stated that McNabb was “re
    sponsive to the same considerations of Fifth Amendment
    policy that . . . face[d] us . . . as to the states” in Miranda,
    384 U. S., at 463. Similarly, in Miller, we required sup
    pression of evidence that was the product of a search
    incident to an unlawful arrest. 357 U. S., at 305; see
    California v. Hodari D., 
    499 U.S. 621
    , 624 (1991) (“We have
    long understood that the Fourth Amendment’s protection
    against ‘unreasonable . . . seizures’ includes seizure of the
    person”).
       The violation of the right to consular notification, in
    contrast, is at best remotely connected to the gathering of
    evidence. Article 36 has nothing whatsoever to do with
    searches or interrogations. Indeed, Article 36 does not
    14              SANCHEZ-LLAMAS v. OREGON
    
                         Opinion of the Court
    
    guarantee defendants any assistance at all. The provision
    secures only a right of foreign nationals to have their
    consulate informed of their arrest or detention—not to
    have their consulate intervene, or to have law enforcement
    authorities cease their investigation pending any such
    notice or intervention. In most circumstances, there is
    likely to be little connection between an Article 36 viola
    tion and evidence or statements obtained by police.
       Moreover, the reasons we often require suppression for
    Fourth and Fifth Amendment violations are entirely
    absent from the consular notification context. We require
    exclusion of coerced confessions both because we disap
    prove of such coercion and because such confessions tend
    to be unreliable. Watkins v. Sowders, 
    449 U.S. 341
    , 347
    (1981). We exclude the fruits of unreasonable searches on
    the theory that without a strong deterrent, the constraints
    of the Fourth Amendment might be too easily disregarded
    by law enforcement. Elkins v. United States, 
    364 U.S. 206
    , 217 (1960). The situation here is quite different. The
    failure to inform a defendant of his Article 36 rights is
    unlikely, with any frequency, to produce unreliable confes
    sions. And unlike the search-and-seizure context—where
    the need to obtain valuable evidence may tempt authori
    ties to transgress Fourth Amendment limitations—police
    win little, if any, practical advantage from violating Arti
    cle 36. Suppression would be a vastly disproportionate
    remedy for an Article 36 violation.
       Sanchez-Llamas counters that the failure to inform
    defendants of their right to consular notification gives
    them “a misleadingly incomplete picture of [their] legal
    options,” Brief for Petitioner in No. 04–10566, p. 42, and
    that suppression will give authorities an incentive to abide
    by Article 36.
       Leaving aside the suggestion that it is the role of police
    generally to advise defendants of their legal options, we
    think other constitutional and statutory requirements
                     Cite as: 548 U. S. ____ (2006)           15
    
                         Opinion of the Court
    
    effectively protect the interests served, in Sanchez-Llamas’
    view, by Article 36. A foreign national detained on suspi
    cion of crime, like anyone else in our country, enjoys under
    our system the protections of the Due Process Clause.
    Among other things, he is entitled to an attorney, and is
    protected against compelled self-incrimination. See Wong
    Wing v. United States, 
    163 U.S. 228
    , 238 (1896) (“[A]ll
    persons within the territory of the United States are enti
    tled to the protection guaranteed by” the Fifth and Sixth
    Amendments). Article 36 adds little to these “legal options,”
    and we think it unnecessary to apply the exclusionary rule
    where other constitutional and statutory protections—many
    of them already enforced by the exclusionary rule—
    safeguard the same interests Sanchez-Llamas claims are
    advanced by Article 36.
       Finally, suppression is not the only means of vindicating
    Vienna Convention rights. A defendant can raise an
    Article 36 claim as part of a broader challenge to the
    voluntariness of his statements to police. If he raises an
    Article 36 violation at trial, a court can make appropriate
    accommodations to ensure that the defendant secures, to
    the extent possible, the benefits of consular assistance. Of
    course, diplomatic avenues—the primary means of enforc
    ing the Convention—also remain open.
       In sum, neither the Vienna Convention itself nor our
    precedents applying the exclusionary rule support sup
    pression of Sanchez-Llamas’ statements to police.
                                 B
      The Virginia courts denied petitioner Bustillo’s Article
    36 claim on the ground that he failed to raise it at trial or
    on direct appeal. The general rule in federal habeas cases
    is that a defendant who fails to raise a claim on direct
    appeal is barred from raising the claim on collateral re
    view. See Massaro v. United States, 
    538 U.S. 500
    , 504
    (2003); Bousley v. United States, 
    523 U.S. 614
    , 621 (1998).
    16              SANCHEZ-LLAMAS v. OREGON
    
                          Opinion of the Court
    
    There is an exception if a defendant can demonstrate both
    “cause” for not raising the claim at trial, and “prejudice”
    from not having done so. Massaro, supra, at 504. Like
    many States, Virginia applies a similar rule in state post-
    conviction proceedings, and did so here to bar Bustillo’s
    Vienna Convention claim. Normally, in our review of
    state-court judgments, such rules constitute an adequate
    and independent state-law ground preventing us from
    reviewing the federal claim. Coleman v. Thompson, 
    501 U.S. 722
    , 729 (1991). Bustillo contends, however, that
    state procedural default rules cannot apply to Article 36
    claims. He argues that the Convention requires that
    Article 36 rights be given “ ‘full effect’ ” and that Virginia’s
    procedural default rules “prevented any effect (much less
    ‘full effect’) from being given to” those rights. Brief for
    Petitioner in No. 05–51, p. 35.
       This is not the first time we have been asked to set aside
    procedural default rules for a Vienna Convention claim.
    Respondent Johnson and the United States persuasively
    argue that this question is controlled by our decision in
    Breard v. Greene, 
    523 U.S. 371
     (1998) (per curiam). In
    Breard, the petitioner failed to raise an Article 36 claim in
    state court—at trial or on collateral review—and then
    sought to have the claim heard in a subsequent federal
    habeas proceeding. Id., at 375. He argued that “the Con
    vention is the ‘supreme law of the land’ and thus trumps
    the procedural default doctrine.” Ibid. We rejected this
    argument as “plainly incorrect,” for two reasons. Ibid.
    First, we observed, “it has been recognized in interna
    tional law that, absent a clear and express statement to
    the contrary, the procedural rules of the forum State
    govern the implementation of the treaty in that State.”
    Ibid. Furthermore, we reasoned that while treaty protec
    tions such as Article 36 may constitute supreme federal
    law, this is “no less true of provisions of the Constitution
    itself, to which rules of procedural default apply.” Id., at
                     Cite as: 548 U. S. ____ (2006)          17
    
                         Opinion of the Court
    
    376. In light of Breard’s holding, Bustillo faces an uphill
    task in arguing that the Convention requires States to set
    aside their procedural default rules for Article 36 claims.
      Bustillo offers two reasons why Breard does not control
    his case. He first argues that Breard’s holding concerning
    procedural default was “unnecessary to the result,” Brief
    for Petitioner in No. 05–51, p. 45, because the petitioner
    there could not demonstrate prejudice from the default
    and because, in any event, a subsequent federal statute—
    the Antiterrorism and Effective Death Penalty Act of
    1996, 110 Stat. 1214—superseded any right the petitioner
    had under the Vienna Convention to have his claim heard
    on collateral review. We find Bustillo’s contention unper
    suasive. Our resolution of the procedural default question
    in Breard was the principal reason for the denial of the
    petitioner’s claim, and the discussion of the issue occupied
    the bulk of our reasoning. See 523 U. S., at 375–377. It is
    no answer to argue, as Bustillo does, that the holding in
    Breard was “unnecessary” simply because the petitioner in
    that case had several ways to lose. See Richmond Screw
    Anchor Co. v. United States, 
    275 U.S. 331
    , 340 (1928).
      Bustillo’s second reason is less easily dismissed. He
    argues that since Breard, the ICJ has interpreted the
    Vienna Convention to preclude the application of proce
    dural default rules to Article 36 claims. The LaGrand
    Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of
    June 27) (LaGrand), and the Case Concerning Avena and
    other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No.
    128 (Judgment of Mar. 31) (Avena), were brought before
    the ICJ by the governments of Germany and Mexico,
    respectively, on behalf of several of their nationals facing
    death sentences in the United States. The foreign gov
    ernments claimed that their nationals had not been in
    formed of their right to consular notification. They further
    argued that application of the procedural default rule to
    their nationals’ Vienna Convention claims failed to give
    18                 SANCHEZ-LLAMAS v. OREGON
    
                             Opinion of the Court
    
    “full effect” to the purposes of the Convention, as required
    by Article 36. The ICJ agreed, explaining that the defen
    dants had procedurally defaulted their claims “because of
    the failure of the American authorities to comply with
    their obligation under Article 36.” LaGrand, supra, at
    497, ¶91; see also Avena, supra, ¶113. Application of the
    procedural default rule in such circumstances, the ICJ
    reasoned, “prevented [courts] from attaching any legal
    significance” to the fact that the violation of Article 36
    kept the foreign governments from assisting in their na
    tionals’ defense. LaGrand, supra, at 497, ¶91; see also
    Avena, supra, ¶113.
       Bustillo argues that LaGrand and Avena warrant revis
    iting the procedural default holding of Breard. In a simi
    lar vein, several amici contend that “the United States is
    obligated to comply with the Convention, as interpreted by
    the ICJ.” Brief for ICJ Experts 11 (emphases added). We
    disagree. Although the ICJ’s interpretation deserves
    “respectful consideration,” Breard, supra, at 375, we con
    clude that it does not compel us to reconsider our under
    standing of the Convention in Breard.4
       Under our Constitution, “[t]he judicial Power of the
    United States” is “vested in one supreme Court, and in
    such inferior Courts as the Congress may from time to
    time ordain and establish.” Art. III, §1. That “judicial
    Power . . . extend[s] to . . . Treaties.” Id., §2. And, as Chief
    Justice Marshall famously explained, that judicial power
    
    ——————
      4 The dissent, in light of LaGrand and Avena, “would read Breard . . .
    
    as not saying that the Convention never trumps any procedural default
    rule.” Post, at 26 (opinion of BREYER, J.). This requires more than
    “reading an exception into Breard’s language,” post, at 27, amounting
    instead to overruling Breard’s plain holding that the Convention does
    not trump the procedural default doctrine. While the appeal of such a
    course to a Breard dissenter may be clear, see 523 U. S., at 380
    (BREYER, J., dissenting), “respectful consideration” of precedent should
    begin at home.
                          Cite as: 548 U. S. ____ (2006)                    19
    
                              Opinion of the Court
    
    includes the duty “to say what the law is.” Marbury v.
    Madison, 1 Cranch 137, 177 (1803). If treaties are to be
    given effect as federal law under our legal system, deter
    mining their meaning as a matter of federal law “is em
    phatically the province and duty of the judicial depart
    ment,” headed by the “one supreme Court” established by
    the Constitution. Ibid.; see also Williams v. Taylor, 
    529 U.S. 362
    , 378–379 (2000) (opinion of STEVENS, J.) (“At the
    core of [the judicial] power is the federal courts’ independent
    responsibility—independent from its coequal branches in
    the Federal Government, and independent from the sepa
    rate authority of the several States—to interpret federal
    law”). It is against this background that the United States
    ratified, and the Senate gave its advice and consent to, the
    various agreements that govern referral of Vienna Con
    vention disputes to the ICJ.
      Nothing in the structure or purpose of the ICJ suggests
    that its interpretations were intended to be conclusive on
    our courts.5 The ICJ’s decisions have “no binding force
    ——————
       5 The dissent’s extensive list of lower court opinions that have “looked
    
    to the ICJ for guidance,” post, at 21–22, is less impressive than first
    appears. Many of the cited opinions merely refer to, or briefly describe,
    ICJ decisions without in any way relying on them as authority. See,
    e.g., Committee of United States Citizens Living in Nicaragua v.
    Reagan, 
    859 F.2d 929
    , 932, 935 (CADC 1988); Conservation Law
    Foundation of New England v. Secretary of Interior, 
    790 F.2d 965
    , 967
    (CA1 1986); Narenji v. Civiletti, 
    617 F.2d 745
    , 748 (CADC 1979); Diggs
    v. Richardson, 
    555 F.2d 848
    , 849 (CADC 1976); Rogers v. Societe
    Internationale Pour Participations Industrielles et Commerciales, S. A.,
    
    278 F.2d 268
    , 273, n. 3 (CADC 1960) (Fahy, J., dissenting). Others cite
    ICJ opinions alongside law review articles for general propositions
    about international law. See, e.g., McKesson Corp. v. Islamic Republic
    of Iran, 
    52 F.3d 346
    , 352 (CADC 1995); Princz v. Federal Republic of
    Germany, 
    26 F.3d 1166
    , 1180, 1184 (CADC 1994) (Wald, J., dissent
    ing); Sadat v. Mertes, 
    615 F.2d 1176
    , 1187, n. 14 (CA7 1980); United
    States v. Postal, 
    589 F.2d 862
    , 869 (CA5 1979). Moreover, all but two
    of the cited decisions from this Court concern technical issues of bound
    ary demarcation. See post, at 21.
    20              SANCHEZ-LLAMAS v. OREGON
    
                          Opinion of the Court
    
    except between the parties and in respect of that particu
    lar case,” Statute of the International Court of Justice,
    Art. 59, 59 Stat. 1062, T. S. No. 993 (1945) (emphasis
    added). Any interpretation of law the ICJ renders in the
    course of resolving particular disputes is thus not binding
    precedent even as to the ICJ itself; there is accordingly
    little reason to think that such interpretations were in
    tended to be controlling on our courts. The ICJ’s principal
    purpose is to arbitrate particular disputes between na
    tional governments. Id., at 1055 (ICJ is “the principal
    judicial organ of the United Nations”); see also Art. 34, id.,
    at 1059 (“Only states [i.e., countries] may be parties in
    cases before the Court”). While each member of the
    United Nations has agreed to comply with decisions of the
    ICJ “in any case to which it is a party,” United Nations
    Charter, Art. 94(1), 59 Stat. 1051, T. S. No. 933 (1945), the
    Charter’s procedure for noncompliance—referral to the
    Security Council by the aggrieved state—contemplates
    quintessentially international remedies, Art. 94(2), ibid.
       In addition, “[w]hile courts interpret treaties for them
    selves, the meaning given them by the departments of
    government particularly charged with their negotiation
    and enforcement is given great weight.” Kolovrat v. Ore
    gon, 
    366 U.S. 187
    , 194 (1961). Although the United
    States has agreed to “discharge its international obliga
    tions” in having state courts give effect to the decision in
    Avena, it has not taken the view that the ICJ’s interpreta
    tion of Article 36 is binding on our courts. President Bush,
    Memorandum for the Attorney General (Feb. 28, 2005),
    App. to Brief for United States as Amicus Curiae in
    Medellín v. Dretke, O. T. 2004, No. 04–5928, p. 9a. More
    over, shortly after Avena, the United States withdrew
    from the Optional Protocol concerning Vienna Convention
    disputes. Whatever the effect of Avena and LaGrand
    before this withdrawal, it is doubtful that our courts
    should give decisive weight to the interpretation of a
                      Cite as: 548 U. S. ____ (2006)           21
    
                          Opinion of the Court
    
    tribunal whose jurisdiction in this area is no longer recog
    nized by the United States.
       LaGrand and Avena are therefore entitled only to the
    “respectful consideration” due an interpretation of an
    international agreement by an international court.
    Breard, 523 U. S., at 375. Even according such considera
    tion, the ICJ’s interpretation cannot overcome the plain
    import of Article 36. As we explained in Breard, the pro
    cedural rules of domestic law generally govern the imple
    mentation of an international treaty. Ibid. In addition,
    Article 36 makes clear that the rights it provides “shall be
    exercised in conformity with the laws and regulations of
    the receiving State” provided that “full effect . . . be given
    to the purposes for which the rights accorded under this
    Article are intended.” Art. 36(2), 21 U. S. T., at 101. In
    the United States, this means that the rule of procedural
    default—which applies even to claimed violations of our
    Constitution, see Engle v. Isaac, 
    456 U.S. 107
    , 129
    (1982)—applies also to Vienna Convention claims. Busti
    llo points to nothing in the drafting history of Article 36 or
    in the contemporary practice of other signatories that
    undermines this conclusion.
       The ICJ concluded that where a defendant was not
    notified of his rights under Article 36, application of the
    procedural default rule failed to give “full effect” to the
    purposes of Article 36 because it prevented courts from
    attaching “legal significance” to the Article 36 violation.
    LaGrand, 2001 I. C. J., at 497–498, ¶¶90–91. This reason
    ing overlooks the importance of procedural default rules in
    an adversary system, which relies chiefly on the parties to
    raise significant issues and present them to the courts in
    the appropriate manner at the appropriate time for adju
    dication. See Castro v. United States, 
    540 U.S. 375
    , 386
    (2003) (SCALIA, J., concurring in part and concurring in
    judgment) (“Our adversary system is designed around the
    premise that the parties know what is best for them, and
    22              SANCHEZ-LLAMAS v. OREGON
    
                          Opinion of the Court
    
    are responsible for advancing the facts and arguments
    entitling them to relief”). Procedural default rules are
    designed to encourage parties to raise their claims promptly
    and to vindicate “the law’s important interest in the finality
    of judgments.” Massaro, 538 U. S., at 504. The conse
    quence of failing to raise a claim for adjudication at the
    proper time is generally forfeiture of that claim. As a
    result, rules such as procedural default routinely deny “legal
    significance”—in the Avena and LaGrand sense—to other
    wise viable legal claims.
       Procedural default rules generally take on greater im
    portance in an adversary system such as ours than in the
    sort of magistrate-directed, inquisitorial legal system
    characteristic of many of the other countries that are
    signatories to the Vienna Convention. “What makes a
    system adversarial rather than inquisitorial is . . . the
    presence of a judge who does not (as an inquisitor does)
    conduct the factual and legal investigation himself, but
    instead decides on the basis of facts and arguments pro
    and con adduced by the parties.” McNeil v. Wisconsin, 
    501 U.S. 171
    , 181, n. 2 (1991). In an inquisitorial system, the
    failure to raise a legal error can in part be attributed to the
    magistrate, and thus to the state itself. In our system,
    however, the responsibility for failing to raise an issue
    generally rests with the parties themselves.
       The ICJ’s interpretation of Article 36 is inconsistent
    with the basic framework of an adversary system. Under
    the ICJ’s reading of “full effect,” Article 36 claims could
    trump not only procedural default rules, but any number
    of other rules requiring parties to present their legal
    claims at the appropriate time for adjudication. If the
    State’s failure to inform the defendant of his Article 36
    rights generally excuses the defendant’s failure to comply
    with relevant procedural rules, then presumably rules
    such as statutes of limitations and prohibitions against
    filing successive habeas petitions must also yield in the
                           Cite as: 548 U. S. ____ (2006)                       23
    
                                Opinion of the Court
    
    face of Article 36 claims. This sweeps too broadly, for it
    reads the “full effect” proviso in a way that leaves little
    room for Article 36’s clear instruction that Article 36
    rights “shall be exercised in conformity with the laws and
    regulations of the receiving State.” Art. 36(2), 21 U. S. T.,
    at 101.6
    ——————
      6 The  dissent would read the ICJ’s decisions to require that proce
    dural default rules give way only where “the State is unwilling to
    provide some other effective remedy, for example (if the lawyer acts
    incompetently in respect to Convention rights of which the lawyer was
    aware) an ineffective-assistance-of-counsel claim.” Post, at 25 (opinion
    of BREYER, J.). But both LaGrand and Avena indicate that the avail
    ability of a claim of ineffective assistance of counsel is not an adequate
    remedy for an Article 36 violation. See LaGrand Case (F. R. G. v.
    U. S.), 2001 I. C. J. 466, 497, ¶91 (Judgment of June 27) (requiring
    suspension of state procedural default rule even though “United States
    courts could and did examine the professional competence of counsel
    assigned to the indigent LaGrands by reference to United States
    constitutional standards”); see also Case Concerning Avena and other
    Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, ¶134 (Judg
    ment of Mar. 31).
       To the extent the dissent suggests that the ICJ’s decisions could be
    read to prevent application of procedural default rules where a defen
    dant’s attorney is unaware of Article 36, see post, at 24–25 (opinion of
    BREYER, J.), this interpretation of the Convention is in sharp conflict
    with the role of counsel in our system. “Attorney ignorance or inadver
    tence is not ‘cause’ because the attorney is the petitioner’s agent when
    acting, or failing to act, in furtherance of the litigation, and the petitioner
    must ‘bear the risk of attorney error.’ ” Coleman v. Thompson, 
    501 U.S. 722
    , 753 (1991) (quoting Murray v. Carrier, 
    477 U.S. 478
    , 488 (1986)).
    Under our system, an attorney’s lack of knowledge does not excuse the
    defendant’s default, unless the attorney’s overall representation falls
    below what is required by the Sixth Amendment. In any event, Bustillo
    himself does not argue that the applicability of procedural default rules
    hinges on whether a foreign national’s attorney was aware of Article 36.
    See Brief for Petitioner in No. 05–51, p. 38 (“[A] lawyer may not,
    consistent with the purposes of Article 36, unilaterally forfeit a foreign
    national’s opportunity to communicate with his consulate”). In fact,
    Bustillo has conceded that his “attorney at trial was aware of his
    client’s rights under the Vienna Convention.” App. in No. 05–51,
    p. 203, n. 5.
    24              SANCHEZ-LLAMAS v. OREGON
    
                          Opinion of the Court
    
       Much as Sanchez-Llamas cannot show that suppression
    is an appropriate remedy for Article 36 violations under
    domestic law principles, so too Bustillo cannot show that
    normally applicable procedural default rules should be
    suspended in light of the type of right he claims. In this
    regard, a comparison of Article 36 and a suspect’s rights
    under Miranda disposes of Bustillo’s claim. Bustillo con
    tends that applying procedural default rules to Article 36
    rights denies such rights “full effect” because the violation
    itself—i.e., the failure to inform defendants of their right
    to consular notification—prevents them from becoming
    aware of their Article 36 rights and asserting them at
    trial. Of course, precisely the same thing is true of rights
    under Miranda. Police are required to advise suspects
    that they have a right to remain silent and a right to an
    attorney. See Miranda, 384 U. S., at 479; see also
    Dickerson, 530 U. S., at 435. If police do not give such
    warnings, and counsel fails to object, it is equally true that
    a suspect may not be “aware he even had such rights until
    well after his trial had concluded.” Brief for Petitioner in
    No. 05–51, p. 35. Nevertheless, it is well established that
    where a defendant fails to raise a Miranda claim at trial,
    procedural default rules may bar him from raising the
    claim in a subsequent postconviction proceeding. Wain
    wright v. Sykes, 
    433 U.S. 72
    , 87 (1977).
       Bustillo responds that an Article 36 claim more closely
    resembles a claim, under Brady v. Maryland, 
    373 U.S. 83
    (1963), that the prosecution failed to disclose exculpatory
    evidence—a type of claim that often can be asserted for
    the first time only in postconviction proceedings. See
    United States v. Dominguez Benitez, 
    542 U.S. 74
    , 83, n. 9
    (2004). The analogy is inapt. In the case of a Brady claim,
    it is impossible for the defendant to know as a factual
    matter that a violation has occurred before the exculpa
    tory evidence is disclosed. By contrast, a defendant is well
    aware of the fact that he was not informed of his Article 36
                      Cite as: 548 U. S. ____ (2006)            25
    
                          Opinion of the Court
    
    rights, even if the legal significance of that fact eludes him.
       Finally, relying on Massaro v. United States, 
    538 U.S. 500
    , Bustillo argues that Article 36 claims “are most ap
    propriately raised post-trial or on collateral review.” Brief
    for Petitioner in No. 05–51, p. 39. Massaro held that
    claims of ineffective assistance of counsel may be raised
    for the first time in a proceeding under 
    28 U.S. C
    . §2255.
    That decision, however, involved the question of the
    proper forum for federal habeas claims. Bustillo, by con
    trast, asks us to require the States to hear Vienna Conven
    tion claims raised for the first time in state postconviction
    proceedings. Given that the Convention itself imposes no
    such requirement, we do not perceive any grounds for us
    to revise state procedural rules in this fashion. See
    Dickerson, supra, at 438.
       We therefore conclude, as we did in Breard, that claims
    under Article 36 of the Vienna Convention may be sub
    jected to the same procedural default rules that apply
    generally to other federal-law claims.
                            *    *      *
      Although these cases involve the delicate question of the
    application of an international treaty, the issues in many
    ways turn on established principles of domestic law. Our
    holding in no way disparages the importance of the Vienna
    Convention. The relief petitioners request is, by any meas
    ure, extraordinary. Sanchez-Llamas seeks a suppression
    remedy for an asserted right with little if any connection to
    the gathering of evidence; Bustillo requests an exception to
    procedural rules that is accorded to almost no other right,
    including many of our most fundamental constitutional
    protections. It is no slight to the Convention to deny
    petitioners’ claims under the same principles we would
    apply to an Act of Congress, or to the Constitution itself.
      The judgments of the Supreme Court of Oregon and the
    Supreme Court of Virginia are affirmed.
                                                  It is so ordered.
                     Cite as: 548 U. S. ____ (2006)            1
    
                  GINSBURG, J., concurring in judgment
    
    SUPREME COURT OF THE UNITED STATES
                              _________________
    
                       Nos. 04–10566 and 05–51
                              _________________
    
    
         MOISES SANCHEZ-LLAMAS, PETITIONER
    04–10566             v.
                     OREGON
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           OREGON
    
    
               MARIO A. BUSTILLO, PETITIONER
    05–51                    v.
            GENE M. JOHNSON, DIRECTOR, VIRGINIA
               DEPARTMENT OF CORRECTIONS
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           VIRGINIA
    
                            [June 28, 2006] 
    
    
      JUSTICE GINSBURG, concurring in the judgment.
      I agree that Article 36 of the Vienna Convention grants
    rights that may be invoked by an individual in a judicial
    proceeding, and therefore join Part II of JUSTICE BREYER’s
    dissenting opinion. As to the suppression and procedural
    default issues, I join the Court’s judgment. The dissenting
    opinion veers away from the two cases here for review,
    imagining other situations unlike those at hand. In nei
    ther of the cases before us would I remand for further
    proceedings.
      I turn first to the question whether a violation of Article
    36 requires suppression of statements to police officers in
    Sanchez-Llamas’ case and others like it. Shortly after his
    arrest and in advance of any police interrogation, Sanchez-
    Llamas received the warnings required by Miranda v.
    Arizona, 
    384 U.S. 436
     (1966), in both English and Spanish.
    Tr. 122 (Nov. 16, 2000). He indicated that he understood
    2                 SANCHEZ-LLAMAS v. OREGON
    
                     GINSBURG, J., concurring in judgment
    
    those warnings, id., at 123, telling the police that he had
    lived in the United States for approximately 11 years, id., at
    124, 143, 177. After a break in questioning, Sanchez-
    Llamas again received Miranda warnings in Spanish, and
    again indicated that he understood them. Id., at 129, 176.
    Sanchez-Llamas, with his life experience in the United
    States, scarcely resembles the uncomprehending detainee
    imagined by JUSTICE BREYER, post, at 30. Such a detainee
    would have little need to invoke the Vienna Convention, for
    Miranda warnings a defendant is unable to comprehend
    give the police no green light for interrogation. Moran v.
    Burbine, 
    475 U.S. 412
    , 421 (1986) (a defendant’s waiver of
    Miranda rights must be voluntary, knowing, and intelligent,
    i.e., “the product of a free and deliberate choice . . . made
    with a full awareness of both the nature of the right being
    abandoned and the consequences of the decision to abandon
    it”); United States v. Garibay, 
    143 F.3d 534
    , 537–540 (CA9
    1998) (defendant, who had difficulty understanding English,
    did not knowingly and intelligently waive his Miranda
    rights where the police recited the Miranda warnings only
    in English); United States v. Short, 
    790 F.2d 464
    , 469 (CA6
    1986) (defendant’s limited comprehension of English cast
    substantial doubt on the validity of her Miranda waiver).1
       In contrast to Miranda warnings, which must be given
    on the spot before the police interrogate, Article 36 of the
    Vienna Convention does not require the arresting author
    ity to contact the consular post instantly. See Case Con
    cerning Avena and other Mexican Nationals (Mex. v.
    ——————
        1 Before
               trial, Sanchez-Llamas moved to suppress his statements to
    police on voluntariness grounds. The trial court denied the motion,
    finding that clear and convincing evidence established Sanchez-Llamas’
    knowing, voluntary, and intelligent waiver of his Miranda rights. Tr.
    232 (Nov. 16, 2000); App. to Pet. for Cert. in No. 04–10566, pp. 10–11.
    Neither the Oregon Court of Appeals nor the Oregon Supreme Court
    addressed Sanchez-Llamas’ voluntariness challenge, and this Court
    declined to review the question.
                         Cite as: 548 U. S. ____ (2006)                     3
    
                     GINSBURG, J., concurring in judgment
    
    U. S.), 2004 I. C. J. No. 128, ¶97 (Judgment of Mar. 31)
    (Avena) (United States’s notification of Mexican consulate
    within three working days of detainee’s arrest satisfied
    Article 36(1)(b)’s “without delay” requirement); U. S. Dept.
    of State, Consular Notification and Access 20,
    http://travel.state.gov/pdf/CNA_book.pdf (as visited June
    26, 2006, and available in Clerk of Court’s case file) (di
    recting federal, state, and local law enforcement officials
    to notify the appropriate consular post “within 24 hours,
    and certainly within 72 hours” of a foreign national’s
    request that such notification be made). Nor does that
    Article demand that questioning await notice to, and a
    response from, consular officials.2 It is unsurprising,
    therefore, that the well researched dissenting opinion has
    not found even a single case in which any court, any place
    has in fact found suppression an appropriate remedy
    based on no provision of domestic law, but solely on an
    arresting officer’s failure to comply with Article 36 of the
    Vienna Convention. See post, at 32; ante, at 9, n. 3.
      The Court points out, and I agree, that in fitting circum
    stances, a defendant might successfully “raise an Article
    36 claim as part of a broader challenge to the voluntari
    ness of [a detainee’s] statements to police.” Ante, at 15. In
    that way, “full effect” could be given to Article 36 in a
    ——————
      2 See Declaration of Ambassador Maura A. Harty, Annex 4 to
    
    Counter-Memorial of the United States in Case Concerning Avena and
    other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, pp. A385–
    A386, ¶¶34–38 (Oct. 25, 2003) (observing that some Convention signa
    tories do not permit consular access until after the detainee has been
    questioned, and that, even in countries that permit immediate consular
    access, access often does not occur until after interrogation); cf. Avena,
    2004 I. C. J., ¶87 (recognizing that Article 36(1)(b)’s requirement that
    authorities “ ‘inform the person concerned without delay of his rights’
    cannot be interpreted to signify that the provision of such information
    must necessarily precede any interrogation, so that the commencement of
    interrogation before the information is given would be a breach of Article
    36”).
    4               SANCHEZ-LLAMAS v. OREGON
    
                   GINSBURG, J., concurring in judgment
    
    manner consistent with U. S. rules and regulations. But
    the question presented here is whether suppression is
    warranted simply because the State’s authorities failed to
    comply with Article 36 of the Vienna Convention. Neither
    the Convention itself nor the practice of our treaty part
    ners establishes Sanchez-Llamas’ entitlement to such a
    remedy. See El Al Israel Airlines, Ltd. v. Tsui Yuan
    Tseng, 
    525 U.S. 155
    , 175–176 (1999) (construing the
    Warsaw Convention in accord with the views of the United
    States’s treaty partners).
       As to the procedural default issue, I note first two
    anomalies. The Court explains, and I agree, that it would
    be extraordinary to hold that defendants, unaware of their
    Miranda rights because the police failed to convey the
    required warnings, would be subject to a State’s proce
    dural default rules, but defendants not told of Article 36
    rights would face no such hindrance. See ante, at 24.
    Furthermore, as the dissent apparently recognizes, in the
    federal court system, a later-in-time statute, codifying a
    federal procedural default rule, would “supersed[e] any
    inconsistent provision in the Convention.” Post, at 25–26
    (citing Breard v. Greene, 
    523 U.S. 371
     (1998) (per curiam)).
    In my view, it would be unseemly, to say the least, for this
    Court to command state courts to relax their identical, or
    even less stringent procedural default rules, while federal
    courts operate without constraint in this regard. Post, at
    26. That state of affairs, surely productive of friction in
    our federal system, should be resisted if there is a plausi
    ble choice, i.e., if a reasonable interpretation of the federal
    statute and international accord would avoid the conflict.
       Critical for me, Bustillo has conceded that his “attorney
    at trial was aware of his client’s rights under the Vienna
    Convention.” App. in No. 05–51, p. 203, n. 5. Given the
    knowledge of the Vienna Convention that Bustillo’s lawyer
    possessed, this case fails to meet the dissent’s (and the
    International Court of Justice’s) first condition for overrid
                         Cite as: 548 U. S. ____ (2006)                   5
    
                     GINSBURG, J., concurring in judgment
    
    ing a State’s ordinary procedural default rules: “[T]he
    [Vienna] Convention forbids American States to apply a
    procedural default rule to bar assertion of a Convention
    violation claim ‘where it has been the failure of the United
    States [or of a State] itself to inform that may have pre
    cluded counsel from being in a position to have raised the
    question of a violation of the Vienna Convention in the
    initial trial.’ ” Post, at 18 (emphasis deleted) (quoting
    Avena, 2004 I. C. J., ¶113); accord post, at 6, 16, 18, 23.
    Nothing the State did or omitted to do here “precluded
    counsel from . . . rais[ing] the question of a violation of the
    Vienna Convention in the initial trial.” Ibid. Had counsel
    done so, the trial court could have made “appropriate
    accommodations to ensure that the defendant secure[d], to
    the extent possible, the benefits of consular assistance.”
    Ante, at 15.3
      In short, if there are some times when a Convention
    violation, standing alone, might warrant suppression, or
    the displacement of a State’s ordinarily applicable proce
    dural default rules, neither Sanchez-Llamas’ case nor
    Bustillo’s belongs in that category.
    
    
    ——————
      3 Furthermore, once Bustillo became aware of his Vienna Convention
    
    rights, nothing prevented him from raising an ineffective-assistance-of
    counsel claim predicated on his trial counsel’s failure to assert the
    State’s violation of those rights. Through such a claim, as the dissent
    acknowledges, see post, at 16, 19, 25, 29, “full effect” could have been
    given to Article 36, without dishonoring state procedural rules that are
    compatible with due process. Bustillo did not include a Vienna-
    Convention-based, ineffective-assistance-of-counsel claim along with his
    direct Vienna Convention claim in his initial habeas petition. He later
    sought to amend his petition to add an ineffective-assistance-of-counsel
    claim, but the court held that the amendment did not relate back to the
    initial pleading. Tr. of Oral Arg. 26, 42. The state court therefore
    rejected Bustillo’s ineffectiveness claim as barred by the applicable
    state statute of limitations. App. 132. Bustillo did not seek review of
    that decision in this Court.
    6             SANCHEZ-LLAMAS v. OREGON
    
                GINSBURG, J., concurring in judgment
    
                          *    *    *
      For the reasons stated, I would not disturb the judg
    ments of the Supreme Court of Oregon and the Supreme
    Court of Virginia.
                     Cite as: 548 U. S. ____ (2006)            1
    
                         BREYER, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                       Nos. 04–10566 and 05–51
                             _________________
    
    
         MOISES SANCHEZ-LLAMAS, PETITIONER
    04–10566             v.
                     OREGON
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           OREGON
    
    
               MARIO A. BUSTILLO, PETITIONER
    05–51                    v.
            GENE M. JOHNSON, DIRECTOR, VIRGINIA
               DEPARTMENT OF CORRECTIONS
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           VIRGINIA
    
                            [June 28, 2006] 
    
    
       JUSTICE BREYER, with whom JUSTICE STEVENS and
    JUSTICE SOUTER join, and with whom JUSTICE GINSBURG
    joins as to Part II, dissenting.
       The Vienna Convention on Consular Relations provides
    that when the police of a signatory nation arrest a foreign
    national, the detaining “authorities shall inform” the
    foreign national “without delay” of his “righ[t]” to commu
    nicate with his nation’s consular officers. Vienna Conven
    tion on Consular Relations (Vienna Convention or Conven
    tion), Arts. 36(1)(a), (b), Apr. 24, 1963, [1970] 21 U. S. T.
    77, 100–101, T. I. A. S. No. 6820. We granted certiorari in
    these cases to consider three related questions: (1) May a
    criminal defendant raise a claim (at trial or in a postcon
    viction proceeding) that state officials violated this provi
    sion? (2) May a State apply its usual procedural default
    rules to Convention claims, thereby denying the defendant
    the right to raise the claim in a postconviction proceeding
    2               SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    on the ground that the defendant failed to raise the claim
    at trial? And (3) is suppression of a defendant’s confession
    (made to police after a violation of the Convention) an
    appropriate remedy?
       The Court assumes, but does not decide, that the an
    swer to the first question is “yes.” Ante, at 7–8. It an
    swers the second question by holding that a State always
    may apply its ordinary procedural default rules to a de
    fendant’s claim of a Convention violation. Ante, at 15–25.
    Its answer to the third question is that suppression is
    never an appropriate remedy for a Convention violation.
    Ante, at 8–15.
       Unlike the majority, I would decide the first question
    and answer it affirmatively. A criminal defendant may, at
    trial or in a postconviction proceeding, raise the claim that
    state authorities violated the Convention in his case. My
    answer to the second question is that sometimes state
    procedural default rules must yield to the Convention’s
    insistence that domestic laws “enable full effect to be given
    to the purposes for which” Article 36’s “rights . . . are
    intended.” Art. 36(2), 21 U. S. T., at 101. And my answer
    to the third question is that suppression may sometimes
    provide an appropriate remedy. After answering these
    questions, I would remand these cases, thereby permitting
    the States to apply their own procedural and remedial
    laws, but with the understanding that the Federal Consti
    tution requires that the application of those laws be con
    sistent with the Convention’s demand for an effective
    remedy for an Article 36 violation. See U. S. Const., Art.
    VI, cl. 2 (“[A]ll Treaties made . . . under the Authority of
    the United States, shall be the supreme Law of the Land;
    and the Judges in every State shall be bound thereby”).
                                I
                                A
        The Vienna Convention is an international treaty that
                     Cite as: 548 U. S. ____ (2006)            3
    
                         BREYER, J., dissenting
    
    governs relations between individual nations and foreign
    consular officials. The United States and 169 other na
    tions have ratified the Convention. Its adoption in 1963
    was perhaps “the single most important event in the
    entire history of the consular institution.” L. Lee, Consu
    lar Law and Practice 26 (2d ed. 1991). The Convention
    defines consular functions to include “protecting in the
    receiving State the interests of the sending State and of its
    nationals,” and “helping and assisting nationals . . . of the
    sending State.” Arts. 5(a), (e), 21 U. S. T., at 82–83. The
    United States ratified the Convention in 1969.
       Article 36 of the Convention governs relations between a
    consulate and its nationals, particularly those who have
    been arrested by the host country. Its object is to assure
    consular communication and assistance to such nationals,
    who may not fully understand the host country’s legal
    regime or even speak its language. Article 36 reads as
    follows:
        “1. With a view to facilitating the exercise of consular
        functions relating to nationals of the sending State:
          “(a) consular officers shall be free to communicate
        with nationals of the sending State and to have access
        to them. Nationals of the sending State shall have the
        same freedom with respect to communication with
        and access to consular officers of the sending State;
          “(b) if he so requests, the competent authorities of
        the receiving State shall, without delay, inform the
        consular post of the sending State if, within its consu
        lar district, a national of that State is arrested or
        committed to prison or to custody pending trial or is
        detained in any other manner. Any communication
        addressed to the consular post by the person arrested,
        in prison, custody or detention shall also be forwarded
        by the said authorities without delay. The said au
        thorities shall inform the person concerned without de
    4               SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
        lay of his rights under this sub-paragraph;
             .           .           .         .          .
        “2. The rights referred to in paragraph 1 of this Arti
        cle shall be exercised in conformity with the laws and
        regulations of the receiving State, subject to the pro
        viso, however, that the said laws and regulations
        must enable full effect to be given to the purposes for
        which the rights accorded under this Article are in
        tended.” 21 U. S. T., at 100–101 (emphasis added).
    The U. S. State Department’s Foreign Affairs Manual has
    long stressed the importance the United States places
    upon these provisions. It says, “[O]ne of the basic func
    tions of a consular office has been to provide a ‘cultural
    bridge’ between the host community and the [U. S. na
    tional]. No one needs that cultural bridge more than the
    individual U. S. citizen who has been arrested in a foreign
    country or imprisoned in a foreign jail.” 7 Foreign Affairs
    Manual §401 (1984); see also id., §§401–426 (2004).
                                  B
      In 1969, the United States also ratified (but the Presi
    dent has since withdrawn from) an Optional Protocol to
    the Convention. See Optional Protocol Concerning the
    Compulsory Settlement of Disputes (Optional Protocol),
    Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820;
    Letter from Condoleezza Rice, Secretary of State, to Kofi
    A. Annan, Secretary-General of the United Nations (Mar.
    7, 2005) (giving notice of United States’ withdrawal from
    the Optional Protocol). The Optional Protocol provides
    that “[d]isputes arising out of the interpretation or appli
    cation of the Convention shall lie within the compulsory
    jurisdiction of the International Court of Justice [ICJ].” 21
    U. S. T., at 326.
      Acting pursuant to the Optional Protocol, Germany (in
    1999) and Mexico (in 2003) brought proceedings before the
    ICJ, seeking redress for what they said were violations of
                     Cite as: 548 U. S. ____ (2006)            5
    
                         BREYER, J., dissenting
    
    Article 36 by the United States. LaGrand Case (F. R. G. v.
    U. S.), 2001 I. C. J. 466 (Judgment of June 27) (LaGrand)
    (case brought by Germany); Case Concerning Avena and
    other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No.
    128 (Judgment of Mar. 31) (Avena) (case brought by
    Mexico).
       In Germany’s case, the ICJ rejected the United States’
    claim that the “rights of consular notification and access
    under [Article 36] are rights of States, and not of individu
    als.” LaGrand, 2001 I. C. J., at 19–20, ¶76. It held in
    stead that (1) if an arrested foreign national is prejudiced
    by the host country’s failure to inform him of his Article 36
    rights, and (2) if that individual has “been subjected to
    prolonged detention or convicted and sentenced to severe
    penalties,” then a diplomatic apology alone is not a suffi
    cient remedy. Id., at 32–33, ¶125. Rather, the Convention
    requires the host country, in that case the United States,
    “to allow the review and reconsideration of the” foreign
    national’s “conviction and sentence by taking account of
    the violation of the rights set forth in the Convention.”
    Ibid. The ICJ added that “[t]he choice of means” for pro
    viding this review “must be left to the United States.”
    Ibid. In addition, the ICJ stated that in the case before it,
    application of a procedural default rule (that is, the rule
    that the LaGrands could not bring their Convention
    claims in habeas proceedings because they had not raised
    those claims at trial) violated Article 36(2) of the Conven
    tion because it “had the effect of preventing ‘full effect
    [from being] given to the purposes for which the rights
    accorded under this article are intended.’ ” Id., at 22, ¶91
    (quoting Art. 36(2), 21 U. S. T., at 101). In the ICJ’s view,
    it was “the failure of the American authorities to comply”
    with Article 36 that prevented the LaGrands from raising
    their claims earlier. LaGrand, supra, at 22, ¶91.
       In Mexico’s case, the ICJ reiterated its view that Article
    36, in addition to imposing obligations on member nations,
    6               SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    also allows foreign nationals to bring claims based on
    those violations in domestic judicial proceedings. The ICJ
    noted that, as a matter of international law, breach of a
    treaty ordinarily “ ‘involves an obligation to make repara
    tion in an adequate form.’ ” Avena, supra, ¶119 (quoting
    Factory at Chorzów, Jurisdiction, 1927, P. C. I. J., ser. A,
    No. 9, p. 21). Applying that principle to the Convention,
    the ICJ concluded that “the remedy to make good . . .
    violations [of Article 36] should consist in an obligation on
    the United States to permit review and reconsideration of
    these nationals’ cases by the United States courts . . . with
    a view to ascertaining whether in each case the violation
    . . . caused actual prejudice to the defendant in the process
    of administration of criminal justice.” Avena, 2004 I. C. J.,
    ¶121 (emphasis added). The court added that this “review
    and reconsideration,” to be “effective,” must “fully ex
    amin[e] and tak[e] into account” any such prejudice to the
    defendant. Id., ¶138. The ICJ declined to specify the
    means by which American courts should provide such
    “review and reconsideration.” Instead, the ICJ said, the
    appropriate remedy depends upon an examination of “the
    concrete circumstances of each case” and should be deter
    mined “by the United States courts concerned in the proc
    ess of their review and reconsideration.” Id., ¶127.
        In respect to procedural default, the ICJ referenced
    what it said in LaGrand, while adding the critically im
    portant qualification that the cases in which the Conven
    tion blocked application of a procedural default rule were
    those in which it was “the failure of the United States
    itself to inform” an arrested foreign national of his right to
    contact the consulate that “precluded counsel from being
    in a position to have raised the question of a violation of
    the Vienna Convention in the initial trial.” Avena, supra,
    ¶113.
                     Cite as: 548 U. S. ____ (2006) 
              7
    
                         BREYER, J., dissenting 
    
    
                                 C
    
      For present purposes, the key sections of the Convention
    are (1) the provision that requires the United States to
    “inform” an arrested person “without delay” of his Article
    36 rights, including the right to “communicat[e]” with his
    “consular post,” and (2) the provision that says domestic
    laws and regulations “must enable full effect to be given”
    to the purposes underlying those requirements.
      The key ICJ holdings are its determinations (1) that the
    Convention obligates a member nation to inform an ar
    rested foreign national without delay that he may contact
    his consulate; (2) that the Convention requires the United
    States to provide some process for its courts to “review and
    reconside[r]” criminal convictions where there has been a
    prejudicial violation of this obligation; and (3) that this
    “review and reconsideration” cannot be foreclosed on the
    ground that the foreign national did not raise the violation
    at trial where the authorities’ failure to inform the foreign
    national of his rights prevented him from timely raising
    his claim.
                                   II
      The first question presented is whether a criminal de
    fendant may raise a claim (at trial or in a postconviction
    proceeding) that state officials violated Article 36 of the
    Convention. The Court assumes that the answer to this
    question is “yes,” but it does not decide the matter because
    it concludes in any event that the petitioners are not
    entitled to the remedies they seek. As explained below, I
    would resolve those remedial questions differently.
    Hence, I must decide, rather than assume, the answer to
    the first question presented.
      Regardless, the first question raises an important issue
    of federal law that has arisen hundreds of times in the
    lower federal and state courts. See generally Wooster,
    Construction and Application of Vienna Convention on
    8               SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    Consular Relations (VCCR), Requiring That Foreign Con
    sulate Be Notified When One of Its Nationals Is Arrested,
    
    175 A. L
    . R. Fed. 243 (2002) (collecting federal cases).
    Those courts have divided as to the proper answer. Com
    pare Cardenas v. Dretke, 
    405 F.3d 244
     (CA5 2005) (defen
    dant cannot bring Convention claim in judicial proceed
    ing); United States v. Emuegbunam, 
    268 F.3d 377
     (CA6
    2001) (same); State v. Martinez-Rodriguez, 2001–NMSC–
    029, 
    33 P.3d 267
     (2001) (same); 338 Ore. 267, 
    108 P.3d 573
     (2005) (same); Shackleford v. Commonwealth, 
    262 Va. 196
    , 
    547 S.E.2d 899
     (2001) (same), with Jogi v. Voges,
    
    425 F.3d 367
     (CA7 2005) (defendant can bring Convention
    claim in judicial proceeding). And the issue often arises in
    a legal context where statutes or procedural requirements
    arguably block this Court’s speedy review. See Medellín v.
    Dretke, 
    544 U.S. 660
     (2005) (per curiam). We granted the
    petitions for certiorari in significant part in order to decide
    this question. And, given its importance, we should do so.
       In answering the question it is common ground that the
    Convention is “self-executi[ng].” See S. Exec. Rep. No. 91–
    9, p. 5 (1969); see also Brief for Respondent in No. 04–
    10566, pp. 9–10; Brief for Respondent in No. 05–51, p. 23.
    That is to say, the Convention “operates of itself without
    the aid of any legislative provision.” Foster v. Neilson, 
    2 Pet. 253
    , 314 (1829). The parties also agree that we need
    not decide whether the Convention creates a “private right
    of action,” i.e., a private right that would allow an individ
    ual to bring a lawsuit for enforcement of the Convention or
    for damages based on its violation. Rather, the question
    here is whether the Convention provides, in these cases,
    law applicable in legal proceedings that might have been
    brought irrespective of the Vienna Convention claim, here
    an ordinary criminal appeal and an ordinary postconvic
    tion proceeding.
       Bustillo, for example, has brought an action under a
    Virginia statute that allows any convicted person to seek
                      Cite as: 548 U. S. ____ (2006)            9
    
                         BREYER, J., dissenting
    
    release from custody on the ground that “he is detained
    without lawful authority.” Va. Code Ann. §8.01–654(A)(1)
    (Lexis 2005). Sanchez-Llamas has challenged his state
    criminal conviction on direct appeal, and in that proceed
    ing he is entitled to claim that his conviction violates state
    or federal law. In both cases the petitioners argue that a
    court decision favoring the prosecution would violate the
    Convention (as properly interpreted), and therefore the
    Constitution forbids any such decision. See U. S. Const.,
    Art. VI, cl. 2. This argument in effect claims that the
    Convention itself provides applicable law that here would
    favor the petitioners if, but only if, they are correct as to
    their interpretation of the Convention (which is, of course,
    a different matter).
      The petitioners must be right in respect to their claim
    that the Convention provides law that here courts could
    apply in their respective proceedings. The Convention is a
    treaty. And “all Treaties made . . . under the Authority of
    the United States, shall be the supreme Law of the Land;
    and the Judges in every State shall be bound thereby.”
    U. S. Const., Art. VI, cl. 2. As Chief Justice Marshall long
    ago explained, under the Supremacy Clause a treaty is “to
    be regarded in courts of justice as equivalent to an act of
    the legislature, whenever it operates of itself without the
    aid of any legislative provision.” Foster, supra, at 314.
      Directly to the point, this Court stated long ago that a
    treaty “is a law of the land as an act of Congress is, when
    ever its provisions prescribe a rule by which the rights of
    the private citizen or subject may be determined. And
    when such rights are of a nature to be enforced in a court
    of justice,” in such a case the court is to “resor[t] to the
    treaty for a rule of decision for the case before it as it
    would to a statute.” Head Money Cases, 
    112 U.S. 580
    ,
    598–599 (1884).
      As noted above, see supra, at 8, the parties agree that
    the Convention “operates of itself without the aid of any
    10              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    legislative provision.” Foster, supra, at 314. The question,
    then, is the one this Court set forth in the Head Money
    Cases: Does the Convention set forth a “law” with the legal
    stature of an Act of Congress? And as the Court ex
    plained, we are to answer that question by asking, does
    the Convention “prescribe a rule by which the rights of the
    private citizen . . . may be determined”? Are the obliga
    tions set forth in Article 36(1)(b) “of a nature to be en
    forced in a court of justice”?
       The “nature” of the Convention provisions raised by the
    petitioners indicates that they are intended to set forth
    standards that are judicially enforceable. Those provi
    sions consist of the rights of a foreign national “arrested”
    or “detained in any other manner” (1) to have, on his
    “reques[t],” the “consular post” “inform[ed]” of that arrest
    or detention; (2) to have forwarded “without delay” any
    “communication addressed to the consular post”; and (3) to
    be “inform[ed] . . . without delay” of those two “rights.”
    Art. 36(1)(b), 21 U. S. T., at 101. These rights do not differ
    in their “nature” from other procedural rights that courts
    commonly enforce. Cf. U. S. Const., Amdt. 6 (“In all crimi
    nal prosecutions, the accused shall enjoy the right . . . to
    be informed of the nature and cause of the accusation”);
    ibid. (“In all criminal prosecutions, the accused shall enjoy
    the right . . . to have the Assistance of Counsel for his
    defence”); Miranda v. Arizona, 
    384 U.S. 436
     (1966).
       Moreover, the language of Article 36 speaks directly of
    the “rights” of the individual foreign national. See Art.
    36(1)(b), 21 U. S. T., at 101 (“The said authorities shall
    inform the person concerned without delay of his rights
    under this sub-paragraph” (emphasis added)). Article 36
    thus stands in stark contrast to other provisions of the
    Convention, which speak in terms of the rights of the
    member nations or consular officials. Cf. Art. 9, id., at 86
    (discussing “the right of any of the Contracting Parties to
    fix the designation of consular officers” (emphasis added));
                      Cite as: 548 U. S. ____ (2006)            11
    
                         BREYER, J., dissenting
    
    Art. 34, id., at 98 (consular officials shall have “freedom of
    movement and travel”); Art. 35, id., at 99 (consular offi
    cials shall have “freedom of communication”); Art. 41(1),
    id., at 103 (“Consular officers shall not be liable to arrest
    or detention pending trial”).
        Suppose that a pre-Miranda federal statute had said
    that arresting authorities “shall inform a detained person
    without delay of his right to counsel.” Would courts not
    have automatically assumed that this statute created
    applicable law that a criminal defendant could invoke at
    trial? What more would the statute have to say? See
    Medellín, 544 U. S., at 687 (O’Connor, J., dissenting) (“And
    if a statute were to provide, for example, that arresting
    authorities ‘shall inform a detained person without delay
    of his right to counsel,’ ” what “more would be required” to
    permit “a defendant” to “invoke that statute”?).
        Further, this Court has routinely permitted individuals
    to enforce treaty provisions similar to Article 36 in domes
    tic judicial proceedings. In United States v. Rauscher, 
    119 U.S. 407
    , 410–411 (1886), for example, this Court con
    cluded that the defendant could raise as a defense in his
    federal criminal trial the violation of an extradition treaty
    that said, “ ‘It is agreed that the United States and Her
    Britannic Majesty shall, upon mutual requisitions by them
    . . . deliver up to justice all persons’ ” charged with certain
    crimes in the other country. Similarly, in Kolovrat v.
    Oregon, 
    366 U.S. 187
    , 191, n. 6 (1961), the Court held that
    foreign nationals could challenge a state law limiting their
    right to recover an inheritance based on a treaty providing
    that “ ‘[i]n all that concerns the right of acquiring, possess
    ing or disposing of every kind of property . . . citizens of
    [each country who reside in the other] shall enjoy the
    rights which the respective laws grant . . . in each of these
    states to the subjects of the most favored nation.’ ” And in
    Asakura v. Seattle, 
    265 U.S. 332
    , 340 (1924), the Court
    allowed a foreign national to challenge a city ordinance
    12              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    forbidding noncitizens from working as pawnbrokers
    under a treaty stating that “ ‘citizens or subjects of each of
    the High Contracting Parties shall have liberty . . . to
    carry on trade’ ” and “ ‘generally to do anything incident to
    or necessary for trade upon the same terms as native
    citizens or subjects.’ ”
       In all these cases, the Court recognized that (1) a treaty
    obligated the United States to treat foreign nationals in a
    certain manner; (2) the obligation had been breached by
    the Government’s conduct; and (3) the foreign national
    could therefore seek redress for that breach in a judicial
    proceeding, even though the treaty did not specifically
    mention judicial enforcement of its guarantees or even
    expressly state that its provisions were intended to confer
    rights on the foreign national. Language and context
    argue yet more strongly here in favor of permitting a
    criminal defendant in an appropriate case to find in the
    Convention a law to apply in the proceeding against him.
       In addition, the Government concedes that individual
    consular officials may enforce other provisions of the Con
    vention in American courts. For example, Article 43(1)
    grants consular officials immunity from “the jurisdiction of
    the” host country’s “judicial or administrative authorities”
    for “acts performed in the exercise of consular functions.”
    21 U. S. T., at 104. The federal courts have held that a
    consular official may raise Article 43(1) in a judicial pro
    ceeding, even though that provision does not expressly
    mention a judicial remedy. See, e.g., Risk v. Halvorsen,
    
    936 F.2d 393
    , 397 (CA9 1991); Gerritsen v. de la Madrid
    Hurtado, 
    819 F.2d 1511
    , 1515–1516 (CA9 1987); see also
    Brief for United States as Amicus Curiae 14, n. 2 (citing
    with approval these cases). What in Article 36 warrants
    treating it differently in this respect?
       Finally, the international tribunal that the United
    States agreed would resolve disputes about the interpreta
    tion of the Convention, the ICJ, has twice ruled that an
                     Cite as: 548 U. S. ____ (2006)          13
    
                        BREYER, J., dissenting
    
    arrested foreign national may raise a violation of the
    arresting authorities’ obligation to “inform [him] without
    delay of his rights under” Article 36(1) in an American
    judicial proceeding. See Avena, 2004 I. C. J. No. 128;
    LaGrand, 2001 I. C. J. 466. That conclusion, as an “inter
    pretation of an international agreement by an interna
    tional court” deserves our “ ‘respectful consideration.’ ”
    Ante, at 21. That “respectful consideration,” for reasons I
    shall explain, see infra, at 18–21, counsels in favor of an
    interpretation that is consistent with the ICJ’s reading of
    the Convention here.
       The Government says to the contrary that Article 36 is
    “addressed solely to the rights of States and not private
    individuals”; hence, a foreign national may not claim in an
    American court that a State has convicted him without the
    consular notification that Article 36 requires. Brief for
    United States as Amicus Curiae 7. But its arguments are
    not persuasive. The Government rests this conclusion
    primarily upon its claim that there is a “long-established
    presumption that treaties and other international agree
    ments do not create judicially enforceable individual
    rights.” Id., at 11.
       The problem with that argument is that no such pre
    sumption exists. The Government cites three cases in
    support of its position, Charlton v. Kelly, 
    229 U.S. 447
    ,
    474 (1913); Whitney v. Robertson, 
    124 U.S. 190
    , 195
    (1888); and Foster, 2 Pet., at 306–307. The first of these,
    Charlton, says that the question whether a treaty has
    been abrogated by another nation’s violations is a matter
    with which “ ‘judicial tribunals have nothing to do.’ ” 229
    U. S., at 474. The second, Whitney, says that whether a
    subsequent federal statute that abrogates a treaty violates
    the United States’ treaty obligations is a matter that has
    “not been confided to the judiciary.” 124 U. S., at 195.
    The third, Foster, says that in “a controversy between two
    nations concerning national boundary, it is scarcely possi
    14              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    ble that the courts of either should refuse to abide by the
    measures adopted by its own government.” 2 Pet., at 307.
    What have these issues to do with the present one? How
    do these cases support the presumption that the Govern
    ment claims?
       Regardless, as I have just said, see supra, at 9, the Head
    Money Cases make clear that a treaty may confer certain
    enforceable “rights upon the citizens or subjects of one of
    the nations residing in the territorial limits of the other.”
    112 U. S., at 598; see also 2 Restatement (Third) on For
    eign Relations Law of the United States §907 (1986) (here
    inafter Restatement) (“A private person having rights
    against the United States under an international agree
    ment may assert those rights in courts in the United
    States”). And the language of the Convention makes clear
    that it is such a treaty. Indeed, to my knowledge no other
    nation’s courts (or perhaps no more than one) have held to
    the contrary. The cases cited by the respondents and the
    Government do not say otherwise. See Judgment of Nov.
    7, 2001, 5 BGHSt 116 (Germany) (deciding in light of
    LaGrand that the Convention creates individual rights,
    but declining to suppress confession); Queen v. Abbrederis
    (1981) 
    51 F. L
    . R. 99, 115 (Ct. Crim. App. New South
    Wales (Australia)) (deciding that Convention does not
    “affect the carrying out of an investigation by interroga
    tion of a foreign person coming to this country”). But see
    Queen v. Van Bergen [2000] 261 A. R. 387, 390 (Ct. App.
    Alberta (Canada)) (noting in dictum that the Convention
    “creates an obligation between states and is not one owed
    to the national,” but affirming denial of suppression mo
    tion on the ground that “there was in any event no proven
    prejudice to” the defendant). See also Queen v. Partak,
    [2001] 
    160 Cow. C
    . C. 3d 553 (Ont. Super. Ct. of J.) (applying
    Van Bergen’s “serious prejudice” test to conclude that
    defendant’s statements were admissible); compare cases
    cited infra, at 31–32.
                     Cite as: 548 U. S. ____ (2006)           15
    
                        BREYER, J., dissenting
    
      The Government also points out that the Executive
    Branch’s interpretation of treaty provisions is entitled to
    “great weight.” Sumitomo Shoji America, Inc. v. Avagli
    ano, 
    457 U.S. 176
    , 184–185 (1982). I agree with this
    presumption. But the Executive’s views on our treaty
    obligations are “not conclusive.” Ibid.; see Perkins v. Elg,
    
    307 U.S. 325
    , 328, 337–342 (1939) (declining to adopt
    Executive’s treaty interpretation); Johnson v. Browne, 
    205 U.S. 309
    , 319–321 (1907) (same); De Lima v. Bidwell, 
    182 U.S. 1
    , 181, 194–199 (1901) (same). Where language, the
    nature of the right, and the ICJ’s interpretation of the
    treaty taken separately or together so strongly point to an
    intent to confer enforceable rights upon an individual, I
    cannot find in the simple fact of the Executive Branch’s
    contrary view sufficient reason to adopt the Government’s
    interpretation of the Convention.
      Accordingly, I would allow the petitioners to raise their
    claims based on violations of the Convention in their
    respective state-court proceedings.
                                   III
       The more difficult issue, I believe, concerns the nature
    of the Convention’s requirements as to remedy. In par
    ticular, Bustillo’s case concerns a state procedural default
    rule. When, if ever, does the Convention require a state
    court to set aside such a rule in order to hear a criminal
    defendant’s claim that the police did not “inform” him of
    his “right” to communicate with his “consular post”? Art.
    36(1)(b), 21 U. S. T., at 101. The Court says that the
    answer is “never.” See ante, at 15–25. In its view, the
    Convention does not under any circumstances trump a
    State’s ordinary procedural rules requiring a defendant to
    assert his claims at trial or lose them forever.
       In my view, Article 36 of the Convention requires a less
    absolute answer. Article 36 says that the rights it sets
    forth “shall be exercised in conformity with the laws and
    16              SANCHEZ-LLAMAS v. OREGON
    
                          BREYER, J., dissenting
    
    regulations of the receiving State,” but it instantly adds,
    “subject to the proviso . . . that the said laws and regula
    tions must enable full effect to be given to the purposes for
    which the [Article 36] rights are . . . intended.” Art. 36(2),
    21 U. S. T., at 101 (emphasis added). The proviso means
    that a State’s ordinary procedural default rules apply
    unless (1) the defendant’s failure to raise a Convention
    matter (e.g., that police failed to inform him of his Article
    36 rights) can itself be traced to the failure of the police (or
    other governmental authorities) to inform the defendant of
    those Convention rights, and (2) state law does not pro
    vide any other effective way for the defendant to raise that
    issue (say, through a claim of ineffective assistance of
    counsel).
       Several considerations lead to this conclusion. First, as
    I have just noted, Article 36 says both that its rights “shall
    be exercised in conformity with” the host country’s “laws
    and regulations” and that those “laws and regulations
    must enable full effect to be given” to the purposes for
    which those rights “are intended.” This interpretation
    makes both the “conformity” requirement and the “full
    effect” requirement meaningful.
       Second, the Convention’s drafting history supports this
    interpretation. The first draft of the Vienna Convention
    was written by the International Law Commission. Arti
    cle 36(2) of that draft required only that domestic laws
    “not nullify” the rights afforded by the Convention. Draft
    Articles on Consular Relations Adopted by the Interna
    tional Law Commission at its Thirteenth Session, Art.
    36(2), reprinted in L. Lee, Vienna Convention on Consular
    Relations 237 (1966). A later amendment substituted the
    “full effect” phrase over the strenuous objection of several
    negotiating countries whose delegates argued that the
    phrase would “modify the criminal law and regulations or
    the criminal procedure of the receiving state.” 1 United
    Nations Conference on Consular Relations, Official Re
                      Cite as: 548 U. S. ____ (2006)            17
    
                         BREYER, J., dissenting
    
    cords, Summary records of plenary meetings and of the
    meetings of the First and Second Committees, U. N. Doc.
    A/CONF.25/16, ¶26, p. 38 (1963) (statement of Romania).
    See also id., at ¶30, p. 38–39 (statement of Congo, Leo
    poldville) (amendment “implied the revision of certain
    laws or regulations, which it would be difficult to carry out
    in practice”); id., 12th mtg., ¶4, at 40 (statement of Union
    of Soviet Socialist Republics) (rejecting the amendment
    because it would “force [signatories] to alter their criminal
    laws and regulations”); id., 20th mtg., ¶81, at 84 (state
    ment of Romania) (same); id., ¶95, at 86 (statement of
    Czechoslovakia) (same).
      Based on this objection, the Soviet Union proposed
    reverting to the original language. The United Kingdom
    opposed that measure, explaining that it supported the
    “full effect” version because the initial (“not nullify”)
    version
         “meant that the laws and regulations of the receiving
         State would govern the rights specified . . . provided
         that they did not render those rights completely inop
         erative—for ‘to nullify’ meant to ‘render completely
         inoperative.’ But rights could be seriously impaired
         without becoming completely inoperative. . . . Consu
         lar officials should, of course, comply with the laws
         and regulations of the receiving State in such matters
         as the times for visiting prisoners, but it was most
         important that the substance of the rights and obliga
         tions specified . . . should be preserved.” Id., ¶¶6–7, at
         40.
    No one disagreed with the United Kingdom’s understand
    ing of the words “full effect.” And with that understand
    ing, the delegates voted down the Soviet Union’s proposal
    to revert to the original language, and ultimately adopted
    the provision with the words “full effect.” Id., ¶109, at 87.
    As so enacted, the provision reflects the “essential princi
    18              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    ple of international law . . . ‘that reparation must, as far as
    possible, wipe out all the consequences of the illegal act
    and reestablish the situation which would, in all probabil
    ity, have existed if that act had not been committed.’ ” 2
    Restatement §901, at 343.
       Third, the decisions of the ICJ, fairly read, interpret the
    Convention similarly. In LaGrand and Avena, the ICJ
    read the Convention as authorizing an individual foreign
    national to raise an Article 36 violation at trial or in a
    postconviction proceeding. See Avena, 2004 I. C. J., ¶121;
    LaGrand, 2001 I. C. J., at 32–33, ¶125. The ICJ added
    that the Convention requires member states to provide
    “effective” remedies in their courts for Convention viola
    tions. See Avena, supra, ¶138. And the ICJ made two
    critical statements in respect to procedural default rules.
    In LaGrand, the court said that in “itself, the [procedural
    default] rule does not violate Article 36 of the Vienna
    Convention.” 2001 I. C. J., at 22, ¶90 (emphasis added).
    Rather, the “problem arises when the procedural default
    rule does not allow the detained individual to challenge a
    conviction and sentence by claiming . . . that the compe
    tent national authorities failed to comply with their obli
    gation to provide the requisite consular information ‘with
    out delay.’ ” Ibid. And the ICJ later specified that the
    Convention forbids American States to apply a procedural
    default rule to bar assertion of a Convention violation
    claim “where it has been the failure of the United States [or
    of a State] itself to inform that may have precluded counsel
    from being in a position to have raised the question of a
    violation of the Vienna Convention in the initial trial.”
    Avena, 2004 I. C. J., ¶113 (emphasis added).
       This last statement indicates that the ICJ understood
    the Convention to prevent application of a procedural
    default rule only where the arresting authorities’ failure to
    inform the foreign national of his Convention rights
    brought about the procedural default in the first place.
                     Cite as: 548 U. S. ____ (2006)           19
    
                         BREYER, J., dissenting
    
    Taken together, the above statements make clear that the
    ICJ read the Convention simply to require an effective
    remedy. It stated repeatedly that it did not dictate what
    that remedy would be, as long it was offered as part of the
    “judicial process.” Id., ¶140–141. Hence, if the State
    provides some other effective remedy, for example, review
    for prejudice through a claim of ineffective assistance of
    counsel, then the Convention would not forbid application
    of ordinary procedural default rules. See ABA Guidelines
    for the Appointment and Performance of Defense Counsel
    in Death Penalty Cases 10.6 (Rev. ed. 2003) (discussing
    defense counsel’s obligation to seek consular assistance);
    Valdez v. Oklahoma, 
    46 P.3d 703
    , 710 (Okla. Crim. App.
    2002) (granting postconviction relief to a defendant who
    had failed to raise a Vienna Convention violation at trial,
    because he showed that his lawyer “could have obtained
    financial, legal and investigative assistance from his
    consulate” that would have produced important new evi
    dence); see also Ledezma v. State, 
    626 N.W.2d 134
    , 152
    (Iowa 2001) (concluding that “all criminal defense attor
    neys representing foreign nationals should be aware of the
    right to consular access as provided by Article 36, and
    should advise their clients of this right” because local
    counsel “are not equipped to provide the same services as
    the local consulate”); cf. Rompilla v. Beard, 
    545 U.S. 374
    (2005).
       I will assume that the ICJ’s interpretation does not bind
    this Court in this case. Statute of the International Court
    of Justice, Art. 59, 59 Stat. 1062, T. S. No. 993 (1945) (ICJ
    decisions have “binding force” only “between the parties
    and in respect of that particular case”). But as the major
    ity points out, the ICJ’s decisions on this issue nonetheless
    warrant our “ ‘respectful consideration.’ ” Ante, at 21.
    That “respectful consideration” reflects the understanding
    that uniformity is an important goal of treaty interpreta
    tion. See Olympic Airways v. Husain, 
    540 U.S. 644
    , 660
    20             SANCHEZ-LLAMAS v. OREGON
    
                        BREYER, J., dissenting
    
    (2004) (SCALIA, J., dissenting) (“[I]t is reasonable to im
    pute to the parties an intent that their respective courts
    strive to interpret the treaty consistently”). And the ICJ’s
    position as an international court specifically charged with
    the duty to interpret numerous international treaties
    (including the Convention) provides a natural point of
    reference for national courts seeking that uniformity. See
    Counter-Memorial of the United States in Avena, 2004
    I. C. J. No. 128, p. 61, n. 128 (Nov. 3, 2003) (even if ICJ
    decision binds only in particular case, “it is well-settled”
    that an ICJ decision “may serve as authority beyond a
    particular case”; citing authorities); Ordonez & Reilly,
    Effect of the Jurisprudence of the International Court of
    Justice on National Courts, in International Law Deci
    sions in National Courts 335, 365 (T. Franck & G. Fox eds.
    1996) (noting that ICJ cases interpreting treaties “are
    routinely cited by domestic judges” in many countries “as
    evidence of international law”).
       That “respectful consideration” also reflects an under
    standing of the ICJ’s expertise in matters of treaty inter
    pretation, a branch of international law. The ICJ’s opin
    ions “are persuasive evidence” of what “[international] law
    is.” 1 Restatement §103, comment b, at 37; see also Mor
    rison, Treaties as a Source of Jurisdiction, Especially in
    U. S. Practice, in The International Court of Justice at a
    Crossroads 58, 61 (L. Damrosch ed. 1987); The Paquete
    Habana, 
    175 U.S. 677
    , 700 (1900) (“[T]rustworthy evi
    dence of what [international] law really is” can be found in
    “the works of jurists and commentators, who by years of
    labor, research and experience have made themselves
    peculiarly well acquainted with the subjects of which they
    treat”); L. Henkin, R. Pugh, O. Schachter, & H. Smit,
    International Law: Cases and Materials 120 (3d ed. 1993)
    (“[T]he decisions of the International Court of Justice are,
    on the whole, regarded by international lawyers as highly
    persuasive authority of existing international law”).
                      Cite as: 548 U. S. ____ (2006)           21
    
                         BREYER, J., dissenting
    
      Thus, this Court has repeatedly looked to the ICJ for
    guidance in interpreting treaties and in other matters of
    international law. See, e.g., United States v. Maine, 
    475 U.S. 89
    , 99–100 (1986) (referring to the Fisheries Case
    (United Kingdom v. Norway), 1951 I. C. J. 116, as legal
    authority in a maritime boundary dispute); United States
    v. Louisiana, 
    470 U.S. 93
    , 107 (1985) (same); United
    States v. Louisiana, 
    394 U.S. 11
    , 69–72 (1969) (same);
    First Nat. City Bank v. Banco Para el Comercio Exterior de
    Cuba, 
    462 U.S. 611
    , 628, and n. 20 (1983) (citing Case
    Concerning The Barcelona Traction, Light & Power Co.,
    1970 I. C. J. 3, for the proposition that an incorporated
    entity “is not to be regarded as legally separate from its
    owners in all circumstances”); United States v. California,
    
    381 U.S. 139
    , 172 (1965) (citing the Corfu Channel Case,
    1949 I. C. J. Rep. 4, in boundary dispute); Reid v. Covert,
    
    354 U.S. 1
    , 61 (1957) (plurality opinion) (citing France v.
    United States, 1952 I. C. J. Rep. 176, as authority for the
    meaning of the word “ ‘disputes’ ” in international treaties).
      The lower courts have done the same. See, e.g., McKes
    son Corp. v. Islamic Republic of Iran, 
    52 F.3d 346
    , 352
    (CADC 1995); Princz v. Federal Rupublic of Germany, 
    26 F.3d 1166
    , 1180, 1184 (CADC 1994) (Wald, J., dissenting);
    Siderman de Blake v. Republic of Argentina, 
    965 F.2d 699
    , 715 (CA9 1992); Committee of United States Citizens
    Living in Nicaragua v. Reagan, 
    859 F.2d 929
    , 932, 935
    (CADC 1988); Arcoren v. Peters, 
    811 F.2d 392
    , 397, n. 11
    (CA8 1987); Conservation Law Foundation of New Eng
    land v. Secretary of Interior, 
    790 F.2d 965
    , 967 (CA1
    1986); Persinger v. Islamic Republic of Iran, 
    729 F.2d 835
    ,
    837, 843 (CADC 1984); McKeel v. Islamic Republic of Iran,
    
    722 F.2d 582
    , 585 (CA9 1983); Cruz v. Zapata Ocean
    Resources, Inc., 
    695 F.2d 428
    , 433, and nn. 8–9 (CA9
    1982); Spiess v. C. Itoh & Co. (America), 
    643 F.2d 353
    ,
    365 (CA5 1981) (Reavley, J., dissenting); Agee v. Muskie,
    
    629 F.2d 80
    , 90 (CADC 1980) (MacKinnon, J., dissenting);
    22             SANCHEZ-LLAMAS v. OREGON
    
                        BREYER, J., dissenting
    
    Sadat v. Mertes, 
    615 F.2d 1176
    , 1188, n. 14 (CA7 1980);
    Narenji v. Civiletti, 
    617 F.2d 745
    , 748 (CADC 1979);
    United States v. Postal, 
    589 F.2d 862
    , 869 (CA5 1979);
    McComish v. Commissioner, 
    580 F.2d 1323
    , 1329 (CA9
    1978); Diggs v. Richardson, 
    555 F.2d 848
    , 849 (CADC
    1976); Island Airlines, Inc. v. CAB, 
    352 F.2d 735
    , 741
    (CA9 1965); Rogers v. Societe Internationale Pour Partici
    pations Industrielles et Commerciales, S. A., 
    278 F.2d 268
    ,
    273, n. 3 (CADC 1960) (Fahy, J., dissenting); Greenpeace,
    Inc. v. France, 
    946 F. Supp. 773
    , 783 (CD Cal. 1996);
    Looper v. Morgan, Civ. No. H–92–0294, 
    1995 WL 499816
    ,
    *1 (SD Tex., June 23, 1995); Koru North America v. United
    States, 
    701 F. Supp. 229
    , 232 (CIT 1988); United States v.
    Central Corp. of Ill., No. 87 C 5072, 
    1987 WL 20129
     (ND
    Ill. Nov. 13, 1987); United States v. Palestine Liberation
    Organization, 
    695 F. Supp. 1456
    , 1461–1462, 1467 (SDNY
    1988); Morgan Guaranty Trust Company of N. Y. v. Re
    public of Palau, 
    639 F. Supp. 706
    , 715 (SDNY 1986); Mas
    sachusetts v. Clark, 
    594 F. Supp. 1373
    , 1387–1388, n. 8
    (Mass. 1984); United States-South West Africa/Namibia
    Trade & Cultural Council v. Department of State, 90
    F. R. D. 695, 696, n. 2 (DC 1981); Zenith Radio Corp. v.
    Matsushita Elec. Indus. Co., 
    505 F. Supp. 1125
    , 1187 (ED
    Pa. 1980); Rodriguez Fernandez v. Wilkinson, 
    505 F. Supp. 787
    , 797 (Kan. 1980); In re Alien Children Ed. Litigation,
    
    501 F. Supp. 544
    , 591 (SD Tex. 1980); American Int’l
    Group, Inc. v. Islamic Republic of Iran, 
    493 F. Supp. 522
    ,
    525 (DC 1980); National Airmotive v. Government and
    State of Iran, 
    491 F. Supp. 555
    , 556 (DC 1980); CAB v.
    Island Airlines, Inc., 
    235 F. Supp. 990
    , 1003–1004, and nn.
    23–24, 1005, and n. 27 (Haw. 1964); United States v.
    Melekh, 
    190 F. Supp. 67
    , 81, 89 (SDNY 1960); Balfour,
    Guthrie & Co. v. United States, 
    90 F. Supp. 831
    , 834, n. 1
    (ND Cal. 1950).
       Today’s decision interprets an international treaty in a
    manner that conflicts not only with the treaty’s language
                     Cite as: 548 U. S. ____ (2006)           23
    
                         BREYER, J., dissenting
    
    and history, but also with the ICJ’s interpretation of the
    same treaty provision. In creating this last-mentioned
    conflict, as far as I can tell, the Court’s decision is un
    precedented.
       The Court supports its interpretation in three basic
    ways. First, the majority says that “respectful considera
    tion” does not require us to agree with a decision that is
    clearly wrong. And, it says, the ICJ’s decision is clearly
    wrong. The ICJ’s interpretation of Article 36, the major
    ity says, would permit a Convention violation claim to
    “trump not only procedural default rules, but any number
    of other rules requiring parties to present their legal
    claims at the appropriate time for adjudication.” Ante, at
    22. That interpretation, it adds, “overlooks the impor
    tance of procedural default rules in an adversary system,”
    and is “inconsistent with the basic framework” of that
    “system.” Ante, at 21–22.
       The majority’s argument, however, overlooks what the
    ICJ actually said, overstates what it actually meant, and
    is inconsistent with what it actually did. In Avena and
    LaGrand, the ICJ did not say that the Convention neces
    sarily trumps any, let alone all, procedural rules that
    would otherwise bar assertion of a Convention violation
    claim. Nor did it say that the Convention necessarily
    trumps all procedural default rules. Rather, it said that
    the Convention prohibits application of those rules to a
    Convention violation claim only “where it has been the
    failure of the United States [or of a State] itself to inform
    that may have precluded counsel from being in a position
    to have raised the question of a violation of the Vienna
    Convention in the initial trial.” Avena, 2004 I. C. J., ¶113
    (emphasis added). Thus, Article 36(2) precludes proce
    dural default only where the defendant’s failure to bring
    his claim sooner is the result of the underlying violation.
    Since procedural default rules themselves typically excuse
    defaults where a defendant shows “cause and prejudice,” it
    24             SANCHEZ-LLAMAS v. OREGON
    
                        BREYER, J., dissenting
    
    is difficult to see how this statement “overlooks the impor
    tance of procedural default rules in an adversary system,”
    or is “inconsistent with the basic framework” of that
    “system.”
       Moreover, Avena and LaGrand make clear what the
    ICJ’s language taken in context means: The Convention
    requires effective national remedies; hence local proce
    dural rules must give way (to the Convention’s “full effect”
    requirement) when, but only when, it is the failure of the
    arresting authorities to inform the defendant of his Con
    vention rights that prevented the defendant from bringing
    his claim sooner. The opinions nowhere suggest that a
    State must provide a procedural remedy to a defendant
    who, for example, sleeps on his rights.
       Consider, too, what the ICJ did in Avena, a case that
    clarified the court’s earlier LaGrand opinion. It did not
    hold that American courts must ignore their procedural
    default rules in each of the 54 individual cases at issue.
    Rather, it held that domestic courts must provide “review
    and reconsideration” in each case. Avena, 2004 I. C. J.,
    ¶153(9). It nowhere forbids a state court conducting such a
    “review” to bar claims not timely made provided that the
    violation did not itself cause the delay. See id., ¶139.
       Perhaps the ICJ’s opinions are open to different inter
    pretations. But how does reading those opinions as creat
    ing an extreme rule of law, as reflecting a lack of under
    standing of the “adversary system,” show “respectful
    consideration”? To show that kind of respect, we must
    read the opinions in light of the Convention’s underlying
    language and purposes and ask whether, or to what ex
    tent, they require modification of a State’s ordinary proce
    dural rules. See Art. 36(2), 21 U. S. T., at 101 (laws and
    regulations “must enable full effect to be given to the
    purposes for which the rights accorded under this Article
    are intended” (emphasis added)).
       Nothing in Avena suggests, for example, that an ar
                     Cite as: 548 U. S. ____ (2006)           25
    
                         BREYER, J., dissenting
    
    rested foreign national who was already aware of his
    rights under Article 36, or who had a lawyer who was
    aware of those rights, necessarily would be entitled to an
    exemption from the State’s procedural default rules under
    Article 36(2). Instead, as I have explained, see supra, at
    18–19, 23, Avena says only that Article 36(2) requires a
    state court to excuse a procedural default rule where the
    State failed to inform the defendant of his consular access
    rights, and the defendant was not aware of those rights,
    and the State is unwilling to provide some other effective
    remedy, for example (if the lawyer acts incompetently in
    respect to Convention rights of which the lawyer was
    aware) an ineffective-assistance-of-counsel claim. The
    Court’s reluctance to give LaGrand and Avena this per
    fectly reasonable interpretation reflects a failure to pro
    vide in practice the “respectful consideration” that we all
    believe the law demands.
       The Court also relies on Breard v. Greene, 
    523 U.S. 371
    (1998) (per curiam). In that case a foreign national, claim
    ing a Convention violation, sought federal habeas corpus.
    This Court upheld a denial of relief on the ground that the
    lower courts had correctly found that Breard procedurally
    defaulted his Convention violation claim by failing to
    timely raise it in his state-court proceedings. In reaching
    its conclusion, the Court rejected Breard’s claim that the
    Convention trumped the procedural default rule. Its
    reasons were (1) that “it has been recognized in interna
    tional law that, absent a clear and express statement to
    the contrary, the procedural rules of the forum State
    govern the implementation of the treaty in that State,” id.,
    at 375; (2) that this principle is “embodied in the Vienna
    Convention itself, which provides that the rights ex
    pressed in the Convention ‘shall be exercised in conformity
    with the laws and regulations of the receiving State,’ ”
    ibid.; and (3) that the federal procedural default rule, as a
    later-in-time federal statute, superseded any inconsistent
    26              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    provision in the Convention, id., at 376.
        I do not believe that Breard controls the outcome of
    these cases. With respect to the third ground for the
    Court’s decision, Breard concerned a federal, rather than
    (as in Bustillo’s case) a state, procedural default rule.
    Those different kinds of rules are treated differently under
    the Supremacy Clause. See ibid. (applying the rule that
    “ ‘an Act of Congress . . . is on a full parity with a treaty,
    and . . . when a statute which is subsequent in time is
    inconsistent with a treaty, the statute to the extent of
    conflict renders the treaty null’ ”). Contrary to JUSTICE
    GINSBURG’s view, then, ante, at 4, there is no anomaly in
    treating state law differently from federal law for these
    purposes, if Congress chooses to enact legislation binding
    only the federal government in respect to a matter covered
    by a treaty that binds both the federal government and
    the States. Therefore, reading the Convention to require
    the state courts to set aside Virginia’s procedural default
    rule in Bustillo’s case (assuming for argument’s sake that
    his case meets the criteria I have described, see supra, at
    15–16) would not call into question, let alone overrule,
    “Breard’s plain holding that the Convention does not
    trump the [federal] procedural default doctrine,” ante, at
    18, n. 4 (opinion of the Court), even if that ruling on its
    own terms is still good law after Avena and LaGrand.
        Moreover, the ICJ decided Avena and LaGrand after
    this Court decided Breard. And it is not difficult to recon
    cile those cases with Breard because they do not directly
    conflict with Breard’s result. Rather, they interpret Arti
    cle 36(2) to require state procedural default rules some
    times to give way to the Convention, namely, when those
    rules prevent effective remedy by barring assertion of a
    claim because of a delay caused by the Convention viola
    tion itself. I would read Breard as consistent with this
    interpretation, i.e., as not saying that the Convention
    never trumps any procedural default rule.
                     Cite as: 548 U. S. ____ (2006)          27
    
                        BREYER, J., dissenting
    
       The Court complains that this treatment of Breard fails
    to give our own opinions “ ‘respectful consideration.’ ”
    Ante, at 18, n. 4. In fact, our opinions are entitled to far
    more than respectful consideration; they are entitled to
    full stare decisis effect. But, as I have explained, reading
    Breard not to decide the outcome in this case would nei
    ther overrule Breard’s holding, nor reject outright its
    reading of the Convention. And, in any event, as a matter
    of the law of stare decisis, a modified reading of Breard is
    appropriate in light of the fact that the ICJ’s later deci
    sions amount to a “significant . . . subsequent develop
    ment” of the law sufficient to lead to a reconsideration of
    past precedent. Agostini v. Felton, 
    521 U.S. 203
    , 236
    (1997); United States v. Percheman, 
    7 Pet. 51
     (1833) (revis
    iting prior treaty interpretation when new international
    law has come to light); see also Medellín, 544 U. S., at 689
    (O’Connor, J., dissenting) (“In the past the Court has
    revisited its interpretation of a treaty when new interna
    tional law has come to light” (citing Percheman, supra, at
    89)). Indeed, the Court seems to recognize as much, in
    that it spends a full six pages explaining why the ICJ’s
    interpretation of the Convention is incorrect, see ante, at
    18–24, rather than simply rejecting Bustillo’s argument on
    the ground that “ ‘respectful consideration’ of precedent
    should begin at home.” Ante, at 18, n. 4.
       And there are other reasons not to place too much reli
    ance on the breadth of Breard’s language. Breard is a per
    curiam decision that the Court had to reach within the few
    hours available between the time a petition for certiorari
    was filed and a scheduled execution, the decision is fairly
    recent, and the modification to which I refer requires no
    more than reading an exception into Breard’s language,
    language that in any event was not central to the Court’s
    holding.
       The modification is appropriate too because the “full
    effect” proviso in Article 36(2) provides a “clear and ex
    28              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    press statement” that sometimes the Convention might
    trump a domestic procedural rule. And in any event, it is
    not even clear that such a clear statement rule actually
    exists. Breard’s statement of a presumption that only a
    treaty provision with a “clear and express statement” can
    trump “the procedural rules of the forum State,” 523 U. S.,
    at 375, is in tension with more fundamental interpretive
    rules in this area. See, e.g., Jordan v. Tashiro, 
    278 U.S. 123
    , 127 (1928) (treaties must be construed liberally to
    protect substantial rights); Asakura, 265 U. S., at 342
    (same); see also Vienna Convention on the Law of Trea
    ties, opened for signature May 23, 1969, Art. 27, 1115
    U. N. T. S. 331, T. S. No. 58 (1980), 8 I. L. M. 679 (1969)
    (treaty parties may not invoke domestic law as an excuse
    for failing to conform to their treaty obligations).
       Indeed, the cases Breard cites for the proposition that a
    clear and express statement is required to trump a domes
    tic procedural rule seem not to establish it. Sun Oil Co. v.
    Wortman, 
    486 U.S. 717
    , 723 (1988) (Court said only that
    it was a “rule in international law at the time the Consti
    tution was adopted” that procedural rules “may be gov
    erned by forum law even when the substance of the claim
    must be governed by another State’s law”; case involved
    domestic law and the Constitution’s Full Faith and Credit
    Clause); Le Roy v. Crowninshield, 
    15 F. Cas. 362
    , 365, 371
    (Mass. 1820) (case involved conflict of laws, not an inter
    national treaty); Volkswagenwerk Aktiengesellschaft v.
    Schlunk, 
    486 U.S. 694
    , 700 (1988) (case said that “we
    almost necessarily must refer to the internal law of the
    forum state” to find a service of process standard if a
    treaty “does not prescribe” it); Société Nationale Indus
    trielle Aérospatiale v. United States Dist. Court for South
    ern Dist. of Iowa, 
    482 U.S. 522
    , 539–540, and n. 25 (1987)
    (case involving a specific treaty, not a general interpretive
    standard).
       Finally, the Court says it would be odd to treat Conven
                     Cite as: 548 U. S. ____ (2006)           29
    
                         BREYER, J., dissenting
    
    tion rights more favorably than rights protected by the
    U. S. Constitution. Ante, at 24. But “[a] treaty is in its
    nature a contract between two nations,” Foster, 2 Pet., at
    314, and nations are of course free to agree to grant one
    another’s citizens protections that differ from the protec
    tions enjoyed by citizens at home, particularly when cir
    cumstances call for differential treatment. See infra, at
    30.
       In sum, I find strong reasons for interpreting the Con
    vention as sometimes prohibiting a state court from apply
    ing its ordinarily procedural default rule to a Convention
    violation claim. The fact that the ICJ reached a similar
    conclusion in LaGrand and Avena adds strength to those
    reasons. And I cannot agree with the majority’s argu
    ments to the contrary.
       Consequently, I would remand No. 05–51 so that Busti
    llo can argue to the Virginia state courts that they should
    modify their ordinary procedural default requirements. I
    would leave it to the state courts to determine in the first
    instance whether state law has provided Bustillo the
    effective remedy that the Convention requires and how it
    has done so (whether through “cause and prejudice” excep
    tions, ineffective-assistance-of-counsel claims, or other
    ways). Cf. LaGrand, 2001 I. C. J., at 33, ¶125 (the “choice
    of [implementing] means must be left to the United
    States”).
                                  IV
      The final question presented asks whether a Convention
    violation “result[s] in the suppression” of the evidence, say
    a confession, that a foreign national provided police before
    being informed of his Convention rights. Pet. for Cert. in
    No. 04–10566, p. i. The majority answers in absolute
    terms, stating that “suppression is not an appropriate
    remedy for a violation of the Convention.” See ante, at 2.
    I agree with the majority insofar as it rejects the argu
    30             SANCHEZ-LLAMAS v. OREGON
    
                        BREYER, J., dissenting
    
    ment that the Convention creates a Miranda-style “auto
    matic exclusionary rule.” Ante, at 8; see also Miranda,
    384 U. S., at 471; cf., e.g., Mapp v. Ohio, 
    367 U.S. 643
    (1961); Franks v. Delaware, 
    438 U.S. 154
     (1978). But I do
    not agree with the absolute nature of its statement.
    Rather, sometimes suppression could prove the only effec
    tive remedy. And, if that is so, then the Convention,
    which insists upon effective remedies, would require sup
    pression in an appropriate case. Art. 36(2), 21 U. S. T., at
    101.
       Much depends upon the circumstances. It may be true
    that in “most circumstances, there is likely to be little
    connection between an Article 36 violation and evidence or
    statements obtained by police.” Ante, at 14. Miranda
    surely helps, for it guarantees that police will inform an
    arrested foreign national of his right to contact a lawyer.
    But one cannot guarantee in advance that Miranda will
    adequately cure every seriously prejudicial failure to in
    form an arrested person of his right to contact his consular
    post. One can imagine a case, for example, involving a
    foreign national who speaks little English, who comes from
    a country where confessions made to the police cannot be
    used in court as evidence, who does not understand that a
    state-provided lawyer can provide him crucial assistance in
    an interrogation, and whose native community has great
    fear of police abuse. Indeed, Sanchez-Llamas made allega
    tions similar to these in his case. Brief for Petitioner San
    chez-Llamas 5-7; see also Brief for the Government of the
    United Mexican States as Amicus Curiae 10.
       While JUSTICE GINSBURG is correct that a defendant
    who is prejudiced under the Convention may be able to
    show that his confession is involuntary under Miranda,
    ante, at 2, I am not persuaded that this will always be so.
    A person who fully understands his Miranda rights but
    does not fully understand the implications of these rights
    for our legal system may or may not be able to show that
                     Cite as: 548 U. S. ____ (2006)          31
    
                        BREYER, J., dissenting
    
    his confession was involuntary under Miranda, but he will
    certainly have a claim under the Vienna Convention. In
    such a case suppression of a confession may prove the only
    effective remedy. I would not rule out the existence of
    such cases in advance.
      Furthermore, the majority is wrong to say that it would
    “be startling if the Convention were read to require sup
    pression” in such cases because suppression “is an entirely
    American legal creation.” Ante, at 8 (opinion of the Court).
    I put to the side the fact that “suppression” is in origin a
    British, not an American, remedy. See Dickerson v.
    United States, 
    530 U.S. 428
    , 433 (2000) (noting that “the
    roots of the [Miranda] test developed in the common law”
    and citing English cases); see also King v. Warickshall, 1
    Leach 262, 263–264, 168 Eng. Rep. 234, 235 (K. B. 1783)
    (coerced confessions are inadmissible in British courts).
    Regardless, it is not “startling” to read the Convention as
    sometimes requiring suppression. That is because those
    who wrote the Convention were fully aware that the crimi
    nal justice systems of different nations differ in important
    ways. They did not list particular remedies. They used
    general language. That language requires every member
    nation to give “full effect” to Article 36(1)’s “purposes.”
    Art. 36(2), 21 U. S. T., at 101. That language leaves it up
    to each nation to determine how to implement Article
    36(1)’s requirements. Avena, 2004 I. C. J., ¶127; LaGrand,
    supra, at 32–33, ¶125. But as a matter of logic and pur
    pose that language must also insist upon the use of sup
    pression if and when there are circumstances in which
    suppression provides the only effective remedy.
      These differences may also help to explain what the
    majority says is the disturbing circumstance that “nearly
    all” other signatories to the Convention “refuse to recog
    nize” suppression “as a matter of domestic law,” and there
    fore that “Sanchez-Llamas would [not] be afforded the
    relief he seeks here in any of the other 169 countries party
    32             SANCHEZ-LLAMAS v. OREGON
    
                        BREYER, J., dissenting
    
    to the Vienna Convention.” Ante, at 9. In fact, there are
    several cases from common-law jurisdictions suggesting
    that suppression is an appropriate remedy for a Conven
    tion violation. See, e.g., Tan Seng Kiah v. Queen (2001)
    
    160 F. L
    . R. 26 (Ct. Crim. App. N. Terr.) (Australian case
    suppressing confession obtained in violation of statute
    requiring police to notify defendant of right to contact
    consulate upon arrest); Queen v. Tan [2001] W. A. S. C.
    275 (Sup. Ct. W. Australia in Crim.) (Australian case
    considering but declining to suppress evidence based on
    violation of same statute); Regina v. Partak, 
    160 Cow. C
    . C.
    3d, at ¶63 (Canada) (concluding that suppression is inap
    propriate, not because it was never a proper remedy under
    the Vienna Convention but because the defendant “com
    pletely failed to demonstrate any prejudice arising from
    the failure of the police to notify him of his consular
    rights”).
       I concede the absence of such cases from civil law juris
    dictions. But the criminal justice systems in those nations
    differ from our own in significant ways. Civil-law nations,
    for example, typically rely more heavily than do we upon
    judicial investigation, questioning by a neutral magistrate,
    the compiling of all evidence into a dossier, and later
    review of that dossier at trial by judges who may sit with
    out our type of jury. In such a system, formal suppression
    proceedings may prove less frequent. Judges, as a matter
    of practice, may simply disregard improperly obtained
    evidence, they may discount the significance of that evi
    dence, or they may adjust the nature of future proceedings
    or even the final sentence accordingly. See Damaška,
    Evidentiary Barriers to Conviction and Two Models of
    Criminal Procedure: A Comparative Study, 121 U. Pa.
    L. Rev. 506, 522 (1972) (explaining why many civil law
    system “provisions regulating the interrogation of defen
    dants are silent as to the admissibility of testimony ob
    tained in violation of proper interrogation procedures”);
                     Cite as: 548 U. S. ____ (2006)          33
    
                        BREYER, J., dissenting
    
    see also Van Kessel, European Perspectives on the Ac
    cused as a Source of Testimonial Evidence, 
    100 W. Va. L
    . Rev. 799, 831 (1997) (“Because [civil law] courts decide
    both questions of law and of fact, exclusionary rules in
    [those] courts are more appropriately described as rules of
    decision than rules of exclusion—what evidence the fact-
    finder may use to support its decision, rather than what
    evidence may be presented to the factfinder. The presid
    ing judge is well acquainted with all evidence in the dos
    sier and often must ‘put aside’ or ‘forget about’ evidence
    which legally cannot be used to support the judgment”);
    Bradley, The Exclusionary Rule in Germany, 96 Harv.
    L. Rev. 1032, 1065 (1982) (noting that in German inquisi
    torial system, for many police violations, “the fact that
    evidence was legally or illegally obtained is not disposi
    tive”; instead, the “decision to admit or suppress will be
    determined by balancing the relative importance of the
    defendant’s privacy rights against the seriousness of the
    offense charged”); Declaration of Professor Thomas Wei
    gend, Annex 3 to Counter-Memorial of the United States,
    in Avena, 2004 I. C. J. No. 128, p. A367, ¶20 (Oct. 22,
    2003) (noting that in the German and Dutch legal
    systems, a procedural violation can lead to a reduced
    sentence).
       Thus, the absence of reported decisions formally sup
    pressing confessions obtained in violation of the Conven
    tion tells us nothing at all about whether such nations
    give “full effect” to the “purposes” of Article 36(1). The
    existence of cases in such nations where a court denies a
    defense request to suppress, of course, might well shed
    light on that nation’s readiness to provide an effective
    remedy. The Solicitor General cites one (and only one)
    such case. See Judgment of Nov. 7, 2001, 5 BGHSt 116
    (deciding in light of LaGrand that the Convention creates
    individual rights, but declining to suppress confession).
    That is the only support I have found for the claim that
    34              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    somehow the petitioners here are asking the United States
    to provide that which other countries deny, an effective
    remedy.
                                   V
       The United States joined the Vienna Convention, and
    urged other nations to join, in order to promote “the or
    derly and effective conduct of consular relations between
    States,” and to guarantee “the protection of our citizens
    abroad.” Vienna Convention on Consular Relations with
    Optional Protocol, S. Exec. Doc. No. E, 91st Cong., 1st
    Sess., 60, 75 (1969). In doing so, the United States, along
    with the other 169 nations that ratified the Convention,
    undertook a complex task. They sought not only to protect
    their consular posts, but also to assure that their nationals
    would have access to those posts when arrested abroad.
    But how to enforce those rights poses a difficult question
    because the enforcement mechanism inevitably will vary
    depending upon the details of a nation’s legal system. For
    practical, legal, and political, reasons, it is difficult to
    write enforcement details into an international treaty.
    Yet without any such guarantees it may prove difficult to
    prevent an individual nation, through application of its
    system’s details, from denying in practice the rights that
    the treaty sought to assure.
       The Convention deals with this problem by including a
    general provision that both severely limits the treaty’s
    intrusion into the functioning of a domestic legal system
    and also safeguards consular access rights from serious
    domestic neglect. It does so by stating that those rights
    shall “be exercised in conformity with the laws and regula
    tions of the receiving State,” provided that those laws and
    regulations give “full effect” to Article 36(1)’s purposes.
    Art. 36(2), 21 U. S. T., at 101.
       Applying this provision to our own legal system, I would
    seek to minimize the Convention’s intrusion and federal
                      Cite as: 548 U. S. ____ (2006)            35
    
                         BREYER, J., dissenting
    
    intrusion into the workings of state legal systems while
    simultaneously keeping faith with the Convention’s basic
    objectives. That is why I believe that the Convention here
    requires individual States to make an exception (akin to a
    “cause and prejudice” exception) to a state procedural
    default rule if (1) the defendant’s failure to raise a claim of
    a Convention violation in a timely manner itself was a
    product of that violation, and (2) state law provides no
    other procedural means through which the State’s courts
    can provide “review,” “reconsideration,” and effective
    relief. Similarly, I would hold that whether the Conven
    tion requires a state court to suppress a confession ob
    tained after an Article 36 violation depends on whether
    suppression is the only remedy available that will effec
    tively cure related prejudice. And because neither state
    court applied this standard below, I would remand each
    case for that initial consideration. See 338 Ore., at 269,
    
    108 P. 3d
    , at 574 (rejecting Sanchez-Llamas’ request for
    suppression remedy solely on the ground that the Conven
    tion “does not create rights that individual foreign nation
    als may assert in a criminal proceeding”); App. to Pet. for
    Cert. 47a (rejecting Bustillo’s request for state postconvic
    tion relief based on a standard different from that set forth
    here).
       The interpretation of the Convention that I would adopt
    is consistent with the ICJ’s own interpretation and should
    not impose significant new burdens upon state criminal
    justice systems. America’s legal traditions have long
    included detailed rules for discovering and curing prejudi
    cial legal errors. Indeed, many States already have “cause
    and prejudice” exceptions likely broad enough to provide
    the “effective” relief the Convention demands. And, in any
    event, it leaves the States free to apply their own judicial
    remedies in light of, and bounded by, the Convention’s
    general instructions.
       The Court, I fear, does not rise to the interpretive chal
    36              SANCHEZ-LLAMAS v. OREGON
    
                         BREYER, J., dissenting
    
    lenge. Rather than seek to apply Article 36’s language
    and purposes to the federal/state relationships that char
    acterize America’s legal system, it simply rejects the no
    tion that Article 36(2) sets forth any relevant requirement.
    That approach leaves States free to deny effective relief for
    Convention violations, despite America’s promise to pro
    vide just such relief. That approach risks weakening
    respect abroad for the rights of foreign nationals, a respect
    that America, in 1969, sought to make effective through
    out the world. And it increases the difficulties faced by
    the United States and other nations who would, through
    binding treaties, strengthen the role that law can play in
    assuring all citizens, including American citizens, fair
    treatment throughout the world.
       Accordingly, I respectfully dissent.
    

Document Info

DocketNumber: 04-10566

Citation Numbers: 548 U.S. 331, 126 S. Ct. 2669, 165 L. Ed. 2d 557, 2006 U.S. LEXIS 5177

Filed Date: 6/28/2006

Precedential Status: Precedential

Modified Date: 2/28/2018

Authorities (105)

Cardenas v. Dretke , 405 F.3d 244 ( 2005 )

The Amiable Isabella , 19 U.S. 1 ( 1821 )

Foster v. Neilson , 27 U.S. 253 ( 1829 )

United States v. Percheman , 32 U.S. 51 ( 1833 )

Hauenstein v. Lynham , 100 U.S. 483 ( 1880 )

Edye v. Robertson , 112 U.S. 580 ( 1884 )

United States v. Rauscher , 119 U.S. 407 ( 1886 )

Whitney v. Robertson , 124 U.S. 190 ( 1888 )

Wong Wing v. United States , 163 U.S. 228 ( 1896 )

De Lima v. Bidwell , 182 U.S. 1 ( 1901 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Johnson v. Browne , 205 U.S. 309 ( 1907 )

Charlton v. Kelly , 229 U.S. 447 ( 1913 )

Asakura v. Seattle , 265 U.S. 332 ( 1924 )

Richmond Screw Anchor Co. v. United States , 275 U.S. 331 ( 1928 )

Jordan v. Tashiro , 278 U.S. 123 ( 1928 )

Perkins v. Elg , 307 U.S. 325 ( 1939 )

McNabb v. United States , 318 U.S. 332 ( 1943 )

Reid v. Covert , 354 U.S. 1 ( 1957 )

Mallory v. United States , 354 U.S. 449 ( 1957 )

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