25 Apr Medellin Applied: VCCR Does Not Create a Private Right of Action
The U.S. Court of Appeals for the Second Circuit has taken the first crack at applying the Supreme Court’s recent decision in Medellin with respect to self-executing treaties. In Mora v. People of New York, the Second Circuit rejected a foreign national’s effort to win damages for violations of the Vienna Convention on Consular Relations. Interestingly, the Second Circuit, buttressed by Medellin’s analysis of self-execution, held that a clear statement is required before a treaty will be read to create an individual private right. No such clear statement can be found in the VCCR under Article 36 and therefore no damages action under Section 1983 or the Alien Tort Statute can be sustained.
This seems like the right result. It is narrower and more defensible than Medellin because it limits the clear statement rule to the creation of private rights of action rather than self-execution in general. Still, a tricky issue and a worthy effort at resolving it from the Second Circuit.
You’re being far too generous, I think. First, it seems to me that the court did not limit the clear statement rule as you suggest. It found no enforceable right based on the lack of any VCCR language related to how an individual could enforce rights (assuming they exist) contained in the treaty (p. 14). It then further concluded no right of action existed under the ATS. To me, this is circular logic and misses the entire point of the Head Money Cases that the court cites so extensively. In my opinion, the question under a fair reading of the Head Money Cases is whether the treaty confers rights that were intended to benefit individuals. If so, the next question is whether that right is of the nature to be judicially enforced. Finally, one must determine how that right might be vindicated…is it a shield only or can it be used as a sword. It does not matter whether the treaty itself creates a specific method of enforcement. The part of the opinion that seems most clearly wrong is this “It is notable, however, that the critical requirement at issue in the instant case—a receiving State’s obligation to inform a… Read more »
Absolutely. One can hear the footsteps of concerns about the torture convention in this Supreme Court logic.
Best,
Ben
That should have said, “not to be a pirate.”