'Respectful Consideration' after Sanchez-Llamas V. Oregon: Why the Supreme Court Owes More to the International Court of Justice

Abstract

This Note argues that the doctrine of “respectful consideration” has emerged as little more than a hollow acknowledgement of the ICJ before the Court engages in its own independent interpretation of the Vienna Convention. It further argues that, while the ICJ has no actual legal authority to interpret the Vienna Convention from the U.S. domestic perspective, the Supreme Court should nonetheless treat ICJ decisions with greater deference. Specifically, Justice Stephen Breyer’s test from his Sanchez-Llamas dissent accords the proper level of deference by permitting, in limited circumstances, the remedies of suppression of the evidence and exceptions to state procedural default rules. By applying this test, the Court would respect the ICJ’s expertise in interpreting the Vienna Convention, protect the national interest in uniform treaty interpretation, and ensure security of American diplomats abroad. Additionally, Justice Breyer’s formulation of “respectful consideration” in the Vienna Convention context can and should serve as a blueprint for the Supreme Court in future treaty interpretation cases