Class Action for VCCR Violations Dismissed

For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress. But “the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct.” “While a treaty must be self-executing for it to create a private right of action enforceable in court without implementing domestic legislation, all self-executing treaties do not necessarily provide for the availability of such private actions.” Therefore, the question here is whether Congress, by ratifying the Convention, intended to create private rights and remedies enforceable in American courts through § 1983 by individual foreign nationals who are arrested or detained in this country….

As Cornejo’s claim is pursuant to § 1983, which provides a vehicle for seeking relief for violation of the “Constitution and laws,” we are guided by the Supreme Court’s treatment of the analogous issue of enforcement of personal rights arising under federal statutes through § 1983. It is clear from Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section.”Thus, an “unambiguously conferred right” phrased in terms of the person benefitted is essential before a statute-and by extension, a treaty having the force of federal law-may support a cause of action under § 1983….

We conclude, therefore, that the unmistakable focus of Article 36 is on consular functions.The privileges discussed are explicitly those relating to the consular post.They are manifestly important, because Article 36 provides for communication and contact by sending States with their nationals who are in trouble in a foreign country. However, the signatory States did not choose to delegate enforcement of Article 36 -even to their own consular officials. They plainly did not do so to individual foreign nationals. For all these reasons, we cannot see unambiguous clarity in the language of Article 36 implying that the States parties to the Convention conferred a private, judicially enforceable right upon individuals.

On the basis of the evidence of the clear text of Article 36(1)(b), which specifies that it is the foreign national who has the right to be informed of the requirement that the detaining authorities must notify his consul if he so requests, it is clear that Article 36(1)(b) confers an individual right. Insofar as it is relevant, the language in the preamble of the Vienna Convention, the congressional intent of the ratifying Senate, the contemporaneous position of the United States Department of State and the travaux préparatoires does not undermine this interpretation. In fact, the contemporaneous position of the United States Department of State and the discussion of Article 36(1)(b) in the travaux préparatoires supports my conclusion that Article 36(1)(b) confers an individual right.

In sum, I believe that the confusion in the majority opinion ultimately arises from the erroneous interpretation of Gonzaga.Contrary to the majority’s view that there must be an intent to confer a privately enforceable individual right, Gonzaga only requires a demonstration that the statute confers an individual right….

The Vienna Convention is silent on private, judicially enforceable remedies for violation of individual rights. As such, the drafters did not express any intention to foreclose domestic remedies that would overcome the presumptive remedy under § 1983. The means of enforcement identified by the ratifying Senate, which included diplomatic channels and the Optional Protocol, are far from the “comprehensive enforcement scheme” that would be incompatible with individual enforcement under § 1983. Finally, the Vienna Convention does not include a more restrictive enforcement remedy that was intended to preclude enforcement under § 1983.

Thus, Article 36(1)(b) confers individual rights that are presumptively enforceable under § 1983. This presumption has not been defeated and therefore Article 36(1)(b) should be interpreted as conferring an individual right that is enforceable under § 1983. For these reasons, I respectfully dissent.

The government’s concern that the inclusion of treaties as part of the law of the United States included in § 1983 would flood the courts with cases is overblown. As the government itself urges elsewhere in its filings before us, there are numerous hurdles that must be overcome before an individual may assert rights in a § 1983 case under a treaty: the treaty must be self-executing; it must contain provisions that provide rights to individuals rather than only to states; and the normal criteria for a § 1983 suit must be satisfied. Only a small subset of treaties, some assuring economic rights and others civil rights, would even be candidates for such a lawsuit…. Section 1983 is a statute that was designed to be a remedy “against all forms of official violation of federally protected rights,” when those violations are committed by state actors. To read it as excluding protection for the subset of treaties that provide individual rights would be to relegate treaties to second-class citizenship, in direct conflict with the Constitution’s command. We conclude, therefore, that the fact that Jogi is asserting rights under a treaty does not in and of itself doom his case.