Opening the Floodgates to Treaty Litigation

International lawyers have long lamented that it is nearly impossible to get courts to apply and enforce treaties, especially to assess damages against government officials. All of this is about to change.

A federal appeals court has held that the Vienna Convention on Consular Relations (VCCR) creates a private right of action. I believe this marks the first time that a U.S. court has found that any provision of the VCCR is judicially enforceable. While the decision does not necessarily affect other courts’ consideration of the Medellin issue — the judicial enforceability of an ICJ interpretation of the VCCR — it may have some broad impact. It may also open the door to a wave of lawsuits alleging violations of various treaties of the United Sates.

In Jogi v. Voges, a panel of the U.S. Court of Appeals for the Seventh Circuit (in Chicago) found that the VCCR can serve as the basis for a suit pursuant to the Alien Tort Statute (28 U.S.C. 1350) which permits aliens to bring lawsuits in “violation of the law of nations or a treaty of the United States).” Almost every lawsuit brought under the ATS has alleged a violation of the law of nations rather than a violation of a treaty because very few treaties of the U.S. have been interpreted to create private rights of action or to be self-executing.

The panel’s decision is certainly plausible. The U.S. government has conceded that the VCCR is “self-executing,” meaning that it does not require any further legislation to implement its provisions. Moreover, the VCCR and the U.S. government have indicated that the VCCR creates individual rights. In such circumstances, it is not a long stretch to then find that the ATS, which the Supreme Court has held creates a cause of action for violations of the law of nations, also creates a cause of action for violations of a self-executing treaty that also creates an individual right.

Bottom line:

(1) Under this holding, any alien who has been arrested by U.S, state, or local officials without being notified of his or her VCCR rights to contact his or her consulate can bring a suit under the ATS. Since thousands of aliens are arrested by state and local officials every year, maybe we should add a new line to the “Miranda” card that police read to everyone, just in case. Moreover, there are lots of other treaties, like the Geneva Conventions or the International Covenant for Civil and Political Rights, that could also serve as the basis for future lawsuits.

(2) The 7th Circuit’s decision here mildly helps international lawyers seeking ways to enforce treaties in U.S. Courts. Smart international lawyers have argued that general provisions like the ATS and the habeas jurisdictional statute, which grant federal courts jurisdiction over treaty violations, authorize federal courts to hear lawsuits enforcing treaty rights, even if the treaty itself is not self-executing or does not create a private right of action. This decision does not go so far, but it is certainly sympathetic to such an approach, which is being tried in lawsuits by detainees in Guantanamo Bay.

(3) The 7th Circuit also telegraphed its view that ICJ interpretations of the VCCR should be treated as binding “the United States” and, presumably, U.S. courts interpreting the VCCR. If the current Medellin litigation does not make it back to the Supreme Court, international lawyers know where to file their next VCCR suit if they want to create a circuit split.