No. 06-0341-pr.United States Court of Appeals, Second Circuit.Argued: April 9, 2007.
Decided: April 24, 2008, Errata filed: May 12, 2008.
Plaintiff, a foreign national who alleges that defendants violated Article 36 of the Vienna Convention on Consular Relations (“Vienna Convention”) by failing to notify him that he could contact his consulate after having been arrested, appeals from a judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge) dismissing his complaint, which sought $1 million in damages under the Alien Tort Statute (“ATS”). Pursuant to 28 U.S.C. § 1915A, which governs complaints filed by prisoners in civil actions, the District Court sua sponte determined that plaintiff failed to state a claim upon which relief can be granted because Article 36 does not confer individual rights that can be enforced in domestic courts. On appeal, plaintiff argues that the requirement of Article 36 that States-parties inform an alien of the availability of consular notification and access creates individual rights that can be vindicated by an action for damages not only through the ATS, but also through 42 U.S.C. § 1983 and an implied private right of action provided for by the
Vienna Convention itself. We conclude, however, that a State-party’s failure to fulfill its obligation to inform a detained alien of the prospect of consular notification and access, pursuant to Article 36, cannot form the basis for such a suit under the ATS, § 1983, or directly under the Vienna Convention.
MICHAEL DOVER, JAE LEE (Irena Nikolic, Jon Romberg, on the brief), Seton Hall University School of Law, Center for Social Justice, Newark, NJ, for Plaintiff-Appellant.
ALAN BECKOFF, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, Assistant Corporation Counsel, on the brief), New York City Law Department, New York, NY, for Defendants-Appellees.
SHARON SWINGLE, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC (James H. Thessin, Acting Legal Adviser, United States Department of State, Washington, DC; Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Washington, DC; Roslynn R. Mauskopf, United States Attorney, United States Attorney’s Office for the Eastern District of New York, Brooklyn, NY; Douglas N. Letter, Attorney, Robert M. Loeb, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, on the brief), for Amicus the United States in Support of Defendants-Appellees.
Before: LEVAL, CABRANES, and RAGGI, Circuit Judges.
JOSÉ A. CABRANES, Circuit Judge:
This appeal concerns obligations imposed by Article 36 of the Vienna Convention on Consular Relations (“the Vienna Convention” or “the Convention”), Apr. 24, 1963,  21 U.S.T. 77, 100-101, T.I.A.S. No. 6820. When a national of one country is detained by authorities in another country, paragraph 1 of Article 36 imposes several requirements. Paragraph 1(b) contains three obligations: (1) “the authorities must notify the consular officers of the detainee’s home country if the detainee so requests”; (2) any communication to the consular officials by a detained alien “shall also be forwarded by the said authorities without delay”; and (3) the detaining authorities “shall inform the person
concerned without delay of his rights under this sub-paragraph.” 21 U.S.T. at 101-02. Under paragraph 1(c), consular officials of the state of the detained alien “shall have the right to visit.” We consider here the third of the paragraph 1(b) requirements — the obligation of States-parties to inform a detained alien of the availability of consular notification and access.
For three decades after the ratification of the Convention by the United States in 1963, it appears that no claim was asserted that the Convention generally, or Article 36(1)(b)(third) in particular, conferred rights upon individuals that could be enforced in our domestic courts, as distinguished from the customary claims of treaty violations asserted by and between States-parties in their international relations. Understandably, a passing suggestion by the Supreme Court in Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam), that the Convention “arguably confers on an individual the right to consular assistance following arrest,” triggered an outpouring of conflicting case law on various permutations of the broad question of whether the Convention confers upon individuals any rights that can be enforced in our courts. The particular settings in which this broad question has arisen are many, and some are set forth in the margin. We consider here only the narrow question of whether a detained alien may vindicate in an action for damages the failure of the detaining authority to inform him of the availability
of consular notification and access. For the reasons set forth below, we conclude that no such action can be maintained.
Similar questions have arisen both in the context of civil suits for damages by foreign nationals, such as the case presented here, and in the context of criminal trials and postconviction proceedings involving foreign nationals, see note 3 ante. The Supreme Court has thus far avoided answering those questions, see Medellín v. Texas, 552 U.S. ___, ___ n. 4, 128 S. Ct. 1346, 1357 n. 4 (2008) (assuming, without deciding, that Article 36 creates judicially enforceable individual rights) Sanchez-Llamas v. Oregon, 548 U.S. 331, ___, 126 S. Ct. 2669, 2677-78
(2006) (same), although four Justices have expressed the view that these questions should be answered in the affirmative, see id. at 2693-98 (Breyer, J., dissenting, joined by Stevens, Souter, Ginsburg, JJ.). Our sister Courts of Appeals are split. Compare Cornejo v. County of San Diego, 504 F.3d 853, 859-64 (9th Cir. 2007) (concluding that Article 36’s obligation to inform aliens of their right to consular notification does not create judicially enforceable individual rights), United States v. Emuegbunam, 268 F.3d 377, 391-94 (6th Cir. 2001) (same), and United States v. Jimenez-Nava, 243 F.3d 192, 196-98 (5th Cir. 2001) (same), with Jogi v. Voges, 480 F.3d 822, 834-35 (7th Cir. 2007) (concluding that Article 36 creates individual rights to be informed of consular notification and access that can be vindicated in a private action). And in cases where the majority did not reach the question, non-majority opinions reflect similarly divergent conclusions. Compare United States v.
Santos, 235 F.3d 1105, 1109 (8th Cir. 2000) (Beam, J., concurring) (concluding that Article 36 does not create a judicially enforceable individual right to be informed of a right to consular notification upon arrest), and United States v. Li, 206 F.3d 56, 66-68 (1st Cir. 2000) (en banc) (Selya Boudin, JJ., concurring) (same), with Li, 206 F.3d at 68-76
(Torruella, J., concurring in part and dissenting in part) (concluding that Article 36 creates a judicially enforceable individual right to be advised about the prospect of consular assistance). Our Court has yet to speak definitively on the question. In United States v. De La Pava, 268 F.3d 157 (2d Cir. 2001), an appeal from a criminal conviction, we considered whether it was necessary to vacate a conviction where the defendant argued that he had received ineffective assistance of counsel because his lawyer had not moved to dismiss the indictment on the basis of an alleged violation of Article 36(1)(b)(third), id. at 163. We determined that a violation of Article 36’s obligation to inform aliens of the prospect of consular notification and access does not provide a basis for the dismissal of an indictment, and therefore it is not ineffective assistance of counsel for a lawyer not to request dismissal on this basis. See id. at 165-66.
We are thus required to consider the thoughtful, if conflicting, arguments of some of our colleagues elsewhere in the federal courts. For the reasons stated below, and in keeping with the apparent practices of the other States-parties to the Convention, we conclude that Article 36’s obligation to inform detained aliens of the prospect of consular notification and access cannot, when violated, be vindicated by a private action for damages filed in our courts. We find that the text of the
Vienna Convention and its context make clear that Article 36(1)(b)(third) does not afford detained aliens with individual rights that they can assert through such litigation. Interpretive principles, such as the presumption that treaties do not create privately enforceable rights in the absence of express language to the contrary, counsel against such an interpretation here. See Medellín, 552 U.S. at — n. 3, 128 S. Ct. at 1357
n. 3 (collecting cases in the court of appeals acknowledging such a presumption). Pursuant to the instructions of the Supreme Court with respect to the deference owed to the views of the Executive on issues of treaty interpretation, we accord “great weight,” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184 (1982), to the settled view of the Executive under successive national administrations. See Li, 206 F.3d at 63
(noting in 2000, during the Clinton Administration, the view of the Executive that the Vienna Convention does not create individual rights) id. at 63-64 (charting the views of the Executive since 1970); see also Amicus’s Br. 5; note 28 post. Finally, the views of the International Court of Justice (“ICJ”) on this issue do not persuade us otherwise. We further conclude that plaintiff’s claims for violation of Article 36(1)(b)(third) do not give rise to a cause of action under the Alien Tort Statute.
The judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge), which dismissed plaintiff-appellant’s complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted, is therefore affirmed.
BACKGROUNDA. The Vienna Convention
The Vienna Convention is the product of the United Nations Conference on Consular
Relations (“the Conference”), which met in the capital of Austria in March and April of 1963. Working from a draft prepared by the International Law Commission, representatives from the governments of 92 countries, including the United States, came together to draft the final document. See generally Luke T. Lee, Vienna Convention on Consular Relations 15-18 (1966). One commentator has noted that, “[a]s the first conference of this kind participated in by states from all parts of the world, it had to strive toward as broad an area of agreement as possible, acceptable to states old and new, whatever their political and economic systems.” Id. at 16. The President of the United States, upon the advice and consent of the Senate, ratified the Convention in 1969. 21 U.S.T. at 77. As of 2006, 170 countries were party to the Convention Sanchez-Llamas, 126 S. Ct. at 2674.
The Vienna Convention consists of a preamble and 79 articles. Article 36, which “concerns consular officers’ access to their nationals detained by authorities in a foreign country,” id. at 2675, states in full:
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 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 forwarded 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 regulations 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 101-02 (emphasis added). Paragraph 2 of Article 36 is said to “provide[ ] guidance regarding how these requirements, and the other requirements of Article 36, are to be implemented.” Sanchez-Llamas, 126 S. Ct. at 2675.
In addition to the Convention itself, the President, upon the consent of the Senate, ratified the Optional Protocol Concerning the Compulsory Settlement of Disputes (“the Optional Protocol” or “Protocol”), Apr. 24, 1963,  21 U.S.T. 325, T.I.A.S. No. 6820. The Protocol states that (1) the ICJ has “compulsory jurisdiction” over “[d]isputes arising out of the interpretation or application of the Convention” and (2) accordingly, any State-party to the Protocol may bring such a dispute before the
ICJ. Id. at 326. The United States withdrew from the Protocol in 2005. Sanchez-Llamas, 126 S. Ct. at 2675.
B. Facts and Procedural History of the Instant Case
The following facts are taken from the pro se complaint filed in the District Court by plaintiff-appellant Ricardo A. De Los Santos Mora (“plaintiff”). We accept these facts as true for the purposes of this appeal and draw all inferences in plaintiff’s favor. See, e.g., McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007).
Plaintiff is a currently incarcerated native and citizen of the Dominican Republic who entered the United States in 1991. In 1992, he was arrested in Queens, New York, and charged with attempted robbery in violation of New York State law. According to plaintiff’s allegations, he did not speak English at the time of his arrest, and the arresting officers did not speak Spanish. He was interrogated without an interpreter present, although he told police in Spanish that he did not understand and wanted to speak with somebody in Spanish. After appearing before a judge, plaintiff was appointed counsel who did not speak Spanish. Plaintiff was then, according to his allegations, “coerced into taking a plea without the benefit of an interpreter.” He was sentenced to six months’ incarceration and five years’ probation. The arresting officers and the prosecutor knew that plaintiff was a citizen of the Dominican Republic but never advised him that he could request legal assistance from the Dominican consulate.
On December 5, 2005, plaintiff, who is represented by counsel on appeal, filed a pro se complaint under the Alien Tort Statute (“ATS”).
Plaintiff’s complaint alleges that defendants-appellees
Queens County District Attorney and New York City Police Department (jointly, “defendants”) violated Article 36 of the Vienna Convention by failing to inform him that he could contact the Dominican consulate. It also claims that “[t]he outcome of Plaintiff[‘s] case would have been different if [he] would [have] known of his Vienna Convention rights,” and that “serious error by the arresting officers and District Attorney caused [sic] [him] his freedom.” As relief, plaintiff requested $1 million. Shortly after filing his complaint, plaintiff requested permission to proceed in forma pauperis.
In a memorandum and order entered on December 30, 2005, the District Court granted plaintiff’s request to proceed in forma pauperis. However, the District Court sua sponte dismissed plaintiff’s complaint for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A, concluding that “[t]he Vienna Convention was meant to protect the rights of states to care for their nationals traveling abroad, not to protect the rights of individuals.” Final judgment was also entered on December 30, 2005. Plaintiff timely appealed. On appeal, plaintiff, now represented by
counsel, argues that Article 36 confers upon him individual rights that he may enforce, not only under the ATS, but also under 42 U.S.C. § 1983 and pursuant to an implied private right of action created by the Vienna Convention itself.
This appeal requires us to consider whether an alien may bring an action seeking damages for the alleged violation of Article 36(1)(b)(third) — that is, the obligation of States-parties to inform a detained alien of the availability of consular notification and access — directly under the Vienna Convention or pursuant to § 1983 or the ATS. We conclude that Article 36(1)(b)(third) does not provide for rights that can be vindicated through such litigation.
In the Head Money Cases, 112 U.S. 580 (1884), the Supreme Court summarized the basic relationship between treaties and individual rights. “A treaty,” the Court explained, “is primarily a compact between independent nations.” Id. at 598. As such, “[i]t depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Id. Treaty violations, therefore, are “the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress.” Id. “[W]ith all this the judicial courts have nothing to do and can give no redress.” Id.
However, “a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal [i.e., domestic] law, and which are capable of enforcement as between private parties in the courts of the country.” Id. The Supremacy Clause of the
United States Constitution, U.S. Const. art. VI, cl. 2, “places such provisions . . . in the same category as other laws of [C]ongress.”Head Money Cases, 112 U.S. at 598. Thus, “[a] treaty, then, is a law of the land as an act of [C]ongress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined.” Id. at 598-599. “And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would a statute.” Id. at 599.
Whether a treaty creates a right in an individual litigant that can be enforced in domestic proceedings by that litigant is for the court to decide as a matter of treaty interpretation. See Garza v. Lappin, 253 F.3d 918, 924 (7th Cir. 2001) (“Whether a particular international agreement provides for private enforcement is a matter for judicial interpretation of the agreement.”); Restatement (Third) of the Foreign Relations Law of the United States (“Restatement (Third)”) § 907 cmt. a (1987) (“Whether an international agreement provides a right or requires that a remedy be made available to a private person is a matter of interpretation of the agreement.”). It is our task in the instant case to determine
whether the requirement that a detaining authority inform an alien of the prospect of consular notification and access set forth in Article 36(1)(b)(third) of the Vienna Convention crosses the boundary between possible benefits to individuals secured by States and State officials and rights conferred directly upon individuals that are assertable, in a private action brought directly under the Convention itself or pursuant to § 1983 or the ATS, by the individuals themselves in our courts of law.
A. An Alien Cannot Vindicate in an Action for Damages a Violation ofArticle 36’s Obligation to Inform Aliens of the Prospect of ConsularNotification and Access.
1. Text and Context
“[T]he main task of any tribunal which is asked to apply or construe or interpret a treaty” is to “give[ ] effect to the expressed intention of the parties, that is, their intention as expressed in the words used by them in the light of the surrounding circumstances.” Lord McNair, The Law of Treaties 365 (1961). It is thus a well-established principle that a court interpreting a treaty “begin[s] with the text of the treaty and the context in which the written words are used.” United States v. Cuevas, 496 F.3d 256, 263 (2d Cir. 2007) (quoting Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 534
(1987)) (internal quotation marks omitted).
The text of Article 36 certainly requires that the authorities of a “receiving State” (that is, the detaining State) take certain actions with respect to the nationals of a “sending State” (that is, the detainee’s home State). For example, paragraph 1(b) of Article 36 provides that if a detained individual of foreign citizenship so requests, the detaining authorities must alert the individual’s home consulate of the detention, see Art. 36(1)(b)(first); moreover, the authorities must inform the detained individual that he can contact his home consulate, see Art. 36(1)(b)(third). 21 U.S.T. at 101. And at least some of these requirements are explicitly referred to as “rights” of the individual foreign nationals. Paragraph 1(b) instructs the detaining authorities to inform the foreign national “without delay of his rights under this sub-paragraph,” Art. 36(1)(b)(third), and paragraph 2 contains instructions for the implementation of the “rights referred to in paragraph 1.” 21 U.S.T. at 101.
It is notable, however, that the critical requirement at issue in the instant case — a receiving State’s obligation to inform a detained foreign national of his “rights” under paragraph 1(b) — is never itself expressly referred to as a “right.” Moreover, the text of the Convention is entirely silent as to whether private individuals can seek redress for violations of this obligation — or any other obligation set forth in Article 36 — in the domestic courts of States-parties. Of course, whether an individual right exists and how that right may be enforced by the individual are different questions. Nevertheless, we think that the lack of any mention in the text of Article 36(1)(b) as to whether or how detained foreign nationals might vindicate their asserted rights at least suggests that the drafters of the Convention did not intend to confer rights directly upon individuals. Cf. page 25-26 post (noting treaties that expressly provide for individual judicial remedies). The language of Article 36 is set forth in a document that “is primarily a compact between independent nations,” although it “may also contain provisions which confer certain rights upon” individuals, Head Money Cases, 112 U.S. at 598 (emphasis added). But “[n]othing in [the treaty’s] text explicitly provides for judicial enforcement of [its] consular access provisions at the behest of private litigants,” Li, 206 F.3d at 66
(Selya Boudin, JJ., concurring), or, for that matter, creates a right to be informed of the prospect of consular access and notification that can be privately vindicated directly under the Vienna Convention or pursuant to § 1983.
Moreover, we have observed that the vocabulary of “individual rights” may be used to refer to certain potential benefits provided by treaty that do not actually create rights enforceable by the individuals benefitted. See United States ex rel. Lujan v. Gengler, 510 F.2d 62, 67
(2d Cir. 1975). As Judges Selya and Boudin explained in their concurring opinion in Li:
Of course, there are references in the [Convention] to a “right” of access, but these references are easily explainable. The contracting States are granting each other rights, and telling future detainees that they have a
“right” to communicate with their consul is a means of implementing the treaty obligations as between States.
Li, 206 F.3d at 66 (Selya Boudin, JJ., concurring) (emphasis in original). Indeed, even with respect to statutes, the Supreme Court has on several occasions rejected the argument that references to the “rights” of persons potentially benefitted by legislation (appearing both in text and legislative history) necessarily support the view that the legislation creates rights in individuals that can be enforced by those individuals through mechanisms such as a § 1983 action or an implied private right of action. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 289
n. 7 (2002); Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 18-20
(1981). Similarly, the isolated language of Article 36(1)(b) is at most ambiguous as to the existence of rights that can be privately vindicated in court in the manner sought by plaintiff. Thus, in accordance with the Fifth and Sixth Circuits, as well as Judges Selya and Boudin of the First Circuit, we conclude that the requirement that an alien be informed of consular notification and access in Article 36(1)(b)(third), even taken in conjunction with the several references to “rights,” does not establish a right in the alien that can be vindicated in a damages action for failure to inform the alien of the obligation. See Emuegbunam, 268 F.3d at 391-94; Jimenez-Nava, 243 F.3d at 196-98; Li, 206 F.3d at 66-68
(Selya Boudin, JJ., concurring).
Several additional textual and contextual considerations militate against construing Article 36’s obligation to inform an alien of the prospect of consular notification and access as creating individual rights that, when violated, can be vindicated through private litigation brought directly under the Convention or pursuant to § 1983. For example, the first clause of paragraph 1 of Article 36 begins with the following statement of purpose: “[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State.” 21 U.S.T. at 100. Plaintiff argues that individual enforcement of the Vienna Convention may aid sending States in the exercise of their consular functions. However, the introductory language of Article 36 emphasizes the exercise of these functions, rather than an individual’s ability to benefit from these functions — giving rise to ambiguity as
to whether the provisions that follow create entirely independent individual rights that may be vindicated by lawsuits in our courts.
The Preamble to the Convention also favors defendants’ position.
It bears underscoring that a preamble is not without meaning under international law. It provides valuable context for understanding the terms of a treaty. See Vienna Convention on the Law of Treaties, art. 31(2), opened for signature May 23, 1969, 1155 U.N.T.S. 331, 340 (providing that “[t]he context for . . . purpose[s] of . . . interpret[ing] . . . a treaty shall comprise . . . the text, including its preamble and annexes,” as well as other related agreements (emphasis added)).
The parties focus on the language in paragraph five of the Preamble stating that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance
of functions by consular posts on behalf of their respective States.” Defendants and amicus the United States argue that this language is evidence that the Convention is not meant to confer rights on individuals. Defs.’ Br. 7; Amicus‘s Br. 7-8. Plaintiff, pointing out that the preceding clause in paragraph four of the Preamble specifies that the “privileges and immunities” mentioned are “consular,” argues that paragraph 5’s language “has no bearing on the existence of rights assertedly granted to private individuals by specific articles of the treaties, but rather refers to benefits attaching to consular or diplomatic officers as a result of their status as officials representatives of a foreign State.” Pl.’s Supp. Reply Br. 2. In other words, according to plaintiff, the Preamble “merely set[s] forth the long-standing principle that the intent of granting privileges and immunities to official representatives of foreign States is not to benefit those individuals personally, but rather to further the amicable relations between the receiving State and the sending State. . . .” Id.
at 3 (emphasis added).
Even if the Preamble cannot be read as explicitly or categorically rejecting the creation of rights in private individuals, it certainly reflects the broader principle that the Convention is concerned primarily, if not exclusively, with establishing relationships and rights as between States and State officials. By referring only to “consular relations, privileges and immunities,” the Preamble suggests that any relations, privileges, or immunities the Convention creates are strictly those of consular officials. Moreover, the Preamble declares that the overarching aim of the Convention is to
“contribute to the development of friendly relations among nations.” 21 U.S.T at 79 (emphasis added). The motivating principles of the Convention as stated in the Preamble are clearly principles governing the relations of States inter se — concern for the “sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations.” Id. These passages suggest that the rights created by the Convention similarly belong to, and should generally be enforced by, the States-parties to the Convention and their official representatives.
The Optional Protocol likewise reinforces the view that Article 36(1)(b)(third) does not create rights in an individual that can be vindicated through an action for damages. Although expressly designed to implement the terms of the Convention, it makes no mention of private actions by detained individuals. Rather, Article I of the Protocol provides that “[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the [ICJ] and may accordingly be brought before the [ICJ] by an application made by any [State-]party to the dispute being a Party to the present Protocol.” 21 U.S.T. at 326.
The lack of individual rights that can be vindicated through a private action for damages does not deprive Article 36 of force for at least four reasons. First, states-parties can safeguard the rights in the Convention (and protect their nationals) through “negotiations and reclamations.” See Head Money Cases, 112 U.S. at 598. Second, the reciprocal nature of the Vienna Convention provides receiving states with a natural incentive to comply with its terms. For instance, the United States, in an action
brought by the federal government, can sue state and local governments to ensure compliance. See Amicus‘s May 11, 2007 Supp. Letter Br. at 10 (“[T]he federal government is empowered to require that state or local law enforcement officials who detain foreign nationals do so in accordance with the substantive restrictions set out in the Convention.”); see also Brief for United States, as Amicus Curiae
Supporting Respondents at 15, Sanchez-Llamas v. Oregon, 126 S. Ct. 2669
(2006), 2006 WL 271823, at *15 (“Under longstanding principles, the United States could bring an action in court to enforce compliance with a treaty obligation.”) (citing Sanitary Dist. v. United States, 266 U.S. 405, 425-26 (1925) (Holmes, J.)). Third, the lack of any privately enforceable right to damages for a violation of Article 36(1)(b)(third) may not foreclose the possibility that a domestic court, having established that an arrested alien is a foreign national, might inquire whether he has been informed that he may contact his
consulate and fulfill the obligation to inform him. Fourth, a detained alien may be able to petition officials of a detaining authority, including where appropriate the courts, to comply with the obligations set forth in Article 36. These mechanisms might not always result in outcomes fully satisfactory to the offended State, but failure to secure optimal compliance or relief does not deprive a treaty provision of meaning any more than, for example, a judgment for nominal damages makes a statute meaningless.
We also reject the argument that plaintiff’s inability to recover damages for the alleged violation of Article 36(1)(b)(third) is incompatible with paragraph 2 of Article 36, which requires that the laws and regulations of States-parties “enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” 21 U.S.T. at 102. In Sanchez-Llamas, the Supreme Court, assumin arguendo the existence of individual rights under Article 36, considered the claim that applying procedural default rules to such rights would deny Article 36 “full effect.” The Court explained its rejection of this claim as follows:
Sanchez-Llamas argues that the language of the Convention implicitly
requires a judicial remedy because it states that the laws and regulations governing the exercise 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 interpretation. 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. . . . Of course, diplomatic avenues — the primary means of enforcing the Convention — also remain open.
Sanchez-Llamas, 126 S.Ct. at 2680-82 (emphasis in orginal). For similar reasons, we do not regard the Convention’s “full effect” provision a requiring a damages claim for a failure to inform an alien of the consular access and notification requirements. In addition to the remedies normally available to States-parties to a treaty, courts may themselves take actions to comply with the Convention that, in effect, correct violations of the treaty by law enforcement authorities. A court’s compliance with Article 36, perhaps in response to a request by our national government for treaty compliance addressed to the thousands of law enforcement authorities in our federal system, see note 22 ante, is not the same as individual enforcement of alleged Article 36 rights in a private civil lawsuit for damages; this independent responsibility or ability on the part of a court to abide by the Convention has nothing to do with the existence vel non of rights enforceable in a private action by an individual. We reject any suggestion by plaintiff that Article 36 is rendered meaningless in the absence of a cause of action for damages by individual foreign nationals to vindicate an alleged violation of its notification provisions.
2. The Presumption Against Conferral of Individual Rights by International Treaties Requires a Clear Statement of the Treaty Drafters’ Intent
“Even when treaties are self-executing . . . the background presumption is that international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” Medellín, 552 U.S. at — n. 3, 128 S. Ct. at 1357 n. 3 (citation and quotation marks omitted). We have recognized that international treaties establish rights and obligations between States-parties — and generally not between states and individuals, notwithstanding the fact that individuals may benefit because of a treaty’s existence. This is so because a treaty is an agreement between states forged in the diplomatic realm and similarly reliant on diplomacy (or coercion) for enforcement. Medellín, 552 U.S. at ___, 128 S. Ct. at 1357. As the Supreme Court explained in the Head Money Cases,
A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war.
112 U.S. at 598. The mechanisms for establishing and enforcing international treaties — namely, the nation’s powers over foreign affairs — have been delegated by the Constitution to the Executive and Legislative branches of government. See Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (“[T]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — `the political’ — departments.”). Accordingly, a due respect for the Constitution’s separation of powers, and a recognition of our own weak tools in this area, require the courts to refrain from venturing heedlessly into the realm of foreign affairs. See Head Money Cases, 112 U.S. at 598 (“It is obvious that with all this [i.e., treaty negotiation and enforcement] the judicial courts have nothing to do and can give no redress.”). Indeed, the Supreme Court has specifically instructed courts to exercise “great caution” when considering private remedies for international law violations because of the risk of “impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Sosa v. Alvarez-Machain, 542 U.S. 692, 727-28
(2004). For these reasons, when interpreting treaties, we generally look for a clear statement of the intent of treaty drafters.
Our cautious approach to recognizing private rights within treaty provisions obtains even when international treaties appear to confer benefits on individuals. Over a quarter of a century ago, we explained that “even where a treaty provides certain benefits for nationals of a particular state — such as fishing rights — it is traditionally held that `any rights arising out of such provisions are, under international law, those of the states and . . . individual rights are only derivative through the states.'” Gengler, 510 F.2d at 67 (quoting Restatement (Second) of the Foreign Relations Law of the United States (“Restatement (Second)”) § 115 cmt. e (1965)); see also Restatement (Third) § 907 cmt. a (“International agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies.” (emphasis added)).
The presumption that “treaties do not create privately enforceable rights in the absence of express language to the contrary” is reflected in the case law of our own Circuit and that of our sister circuits See Medellín, 552 U.S. at — n. 3, 128 S. Ct. at 1357 n. 3. Our precedents recognize a presumption against inferring individual rights from treaties. See, e.g., United States v. Rommy,
506 F.3d 108, 129-30 (2d Cir. 2007) (applying presumption to a bilateral mutual legal assistance treaty between the United States and the Netherlands); United States v. Davis, 767 F.2d 1025, 1030 (2d Cir. 1985) (applying presumption to United States-Switzerland bilateral mutual legal assistance treaty); Dreyfus v. Von Finck, 534 F.2d 24, 29-30 (2d Cir. 1976) (applying presumption to Hague Convention, the Kellogg-Briand Pact, the Versailles Treaty, and the Four Power Occupation Agreement) Gengler, 510 F.2d at 67 (2d Cir. 1975) (applying presumption to United Nations Charter and the Charter of the Organization of American States).
If contracting States-parties wish to impose upon themselves legal obligations that extend not only to each other, but to all individual foreign nationals, we would ordinarily expect expression of these obligations to be unambiguous. Whether we call this expectation a “presumption,” or refer to it as some other rule of construction, or simply treat it as a general guide to treaty interpretation, the result is the same. See, e.g., Medellín, 552 U.S. at ___, 128 S. Ct. at 1357 n. 3 (adopting a clear-statement rule for determining when treaties are self-executing); Breard, 523 U.S. at 375 (1998) (“[I]t has been recognized in international 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.”); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 135 (1989) (“We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.”).
We do not, of course, require “robotic incantations” or “talismanic invocations” by treaty drafters in order to create individual rights, any more than we do of Congress, district judges, or administrative agencies in a variety of spheres. See, e.g., Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir. 2006) (reviewing an immigration judge’s credibility finding); United States v. Fernandez, 443 F.3d 19, 30
(2d Cir. 2006) (reviewing a district court’s consideration of the sentencing set out in 18 U.S.C. § 3553(a)); Riegel Textile Corp. v. Celanese Corp., 649 F.2d 894, 900 (2d Cir. 1981) (considering whether Congress created a statutory private right of action). Indeed, the Supreme Court, on several occasions, has permitted foreign nationals to enforce provisions of treaties that did not explicitly provide for judicial enforcement of their guarantees. Cf. Kolovrat v. Oregon, 366 U.S. 187, 190-91 n. 6 (1961) (allowing foreign nationals to challenge a state law limiting their inheritance rights under a treaty providing that “[i]n all that concerns the right of acquiring, possessing 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”); United States v. Rauscher, 119 U.S. 407, 410-11 (1886) (allowing a criminal defendant to raise in his defense certain alleged violations of an extradition treaty). However, these cases represent circumstances in which the general presumption was overcome because it was far clearer that the intent of the treaty drafters was to confer rights that could be vindicated in the manner sought by the affected individuals. See also Jimenez-Nava, 243 F.3d at 197.
In sum, there are a number of ways in which the drafters of the Vienna Convention, had they intended to provide for an individual right to be informed about consular access and notification that is enforceable through a damages action, could have signaled their intentions to do so Cf. Treaty of Friendship, Commerce and Consular Rights, U.S.-Ger., art. I, Dec. 8, 1923, 44 Stat. 2132, 2133 (expressly providing that “[t]he nationals of each High Contracting Party shall enjoy freedom of access
to the courts of justice of the other on conforming to the local laws, as well for the prosecution as for the defense of their rights”); Treaty of Commerce and Navigation, U.S.-Japan, art. VII, Feb. 21, 1911, 37 Stat. 1504, 1506 (expressly authorizing companies in the contracting parties’ territory “to exercise their rights and appear in the courts either as plaintiffs or defendants, subject to the laws of such other [p]arty”); see also Clark v. Allen, 331 U.S. 503 (1947) (entertaining an individual suit brought under the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany); Asakura v. City of Seattle, 265 U.S. 332 (1924) (allowing a foreign national to challenge a city ordinance on the basis that it violated the US-Japan Treaty of Commerce and Navigation). That they chose not to signal any such intent counsels against our recognizing an individual right that can be vindicated here in a damages action.
3. The Views of the United States Are Entitled to Substantial Deference
The views of amicus the United States constitute another “very powerful reason” for concluding that private individuals do not have rights that can be vindicated in a damages suit for failure to be informed about consular notification and access. Li, 206 F.3d at 67 (Selya Boudin, JJ., concurring). We place “great weight” on the interpretation of a treaty by the Executive of our federal government. See Medellín, 552 U.S. at ___, 128 S. Ct. at 1349; Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982) (“Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”). In the instant case, two federal agencies — the Department of State and the Department of Justice — have jointly submitted an amicus brief to our Court on behalf of the United States in support of defendants’ position regarding the existence vel non of individual rights that can be vindicated privately in courts. Cf. id. at 184-85 n. 10 (stating that the interpretation of a treaty set forth in an amicus brief by the Department of State was entitled to “great weight”). Plaintiff argues that the deference we owe the position of the United States is diminished here because the United States has previously argued, before an international tribunal, that Article 36 creates judicially enforceable individual rights. In particular,
plaintiff directs us to the official pleading of the United States in Case Concerning U.S. Diplomatic Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (May 24). We disagree that this pleading reflects an inconsistency from the view to which it has “unfailingly adhered” that the Vienna Convention “does not create domestically enforceable federal law” of the sort that would support plaintiff claims, Medellín, 552 U.S. at ___, 128 S. Ct. at 1361; nor does this persuade us to give less than “great weight” to the views expressed in the amicus brief.
Plaintiff emphasizes that in its pleading to the ICJ in the 1980 litigation involving Iran’s taking of American diplomatic and consular staff as hostages, the United States argued that “Article 36 establishes rights not only for the consular officer but, perhaps even more importantly, for the nationals of the sending State who are assured access to consular officers and through them to others.” Memorial of the Government of the United States of America, Case Concerning U.S. Diplomatic Consular Staff in Tehran (U.S. v. Iran), 1982 I.C.J. Pleadings 121, 174 (Jan. 12, 1980). This statement, however, must be understood in context. The opening sentence of the section containing the statement reads as follows:
Pursuant to Article 36 of the Vienna Convention on Consular Relations, the Government of Iran is under an international legal obligation to the United States to ensure that United States consular officers shall be free to communicate with nationals of the sending State and to have access to them, that United States nationals in Iran have the same freedom with respect to communication with an access to consular officers of the sending State, and that United States consular officers have the right to visit United States nationals who are in prison, custody, or detention.
Id. at 173 (emphasis added) (internal quotation marks omitted). This sentence makes clear that whatever derivative protections Article 36 might provide to individuals — even if these protections may be referred to as “rights” — the legal obligations arising thereunder are owed to the United States, not to the individuals themselves. Cf. Gonzaga, 536 U.S. at 289 n. 7 (rejecting the argument that “any reference to `rights,’ even as a shorthand means of describing standards and procedures imposed . . . should give rise to a statute’s enforceability under § 1983”). Thus, it is manifestly the case that, in its pleading to the ICJ, the United States was not suggesting that the American hostages taken by Iran ought to have
access to the courts of Iran in order to vindicate their individual rights under the Convention. Accordingly, we do not find the pleading to be inconsistent with the current views of the United States, to which we must continue to accord great weight.
4. The Views of the ICJ Do Not Persuade Us that Article 36 Confers an Individual Right that Can Be Vindicated in a Damages Action, Either Directly Under the Convention or Pursuant to § 1983.
Plaintiff draws to our attention two opinions of the ICJ that, he claims, addressed the existence of individual rights under Article 36 of the Vienna Convention that can be privately vindicated in courts. See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 21); LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27). In those cases, the ICJ made certain comments regarding the “rights” of individuals under Article 36 while considering whether “the Vienna Convention . . . preclude[s] the application of procedural default rules to Article 36 claims” raised in American habeas corpus proceedings Sanchez-Llamas, 126 S. Ct. at 2683. In contrast to the “great
weight” we must provide the views of our Executive, the Supreme Court has instructed that we “should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such.” Breard, 523 U.S. at 375. We are not bound either to give that interpretation any particular weight when considering the text and context of a treaty, or to treat it as having any dispositive effect in the event of ambiguity. Accordingly, the “respectful consideration” owed to the interpretation of an international court is similar to our treatment of, inter alia, agency opinion letters and enforcement manuals under Skidmore v. Swift Co., 323 U.S. 134
(1944). See Christensen v Harris County, 529 U.S. 576, 587 (2000). That is, the interpretation of the international court is “entitled to respect . . . but only to the extent that [it has] the power to persuade.” Id.
(citations and internal quotation marks omitted). “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140.
We do not find the views of the ICJ expressed in Avena and LaGrand to be persuasive in the instant case. In Avena, the ICJ merely asserted that “the individual rights . . . under paragraph 1(b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States.”Avena, 2004 I.C.J. at 35. No further rationale was given for regarding Article 36 as conferring rights upon private individuals that they can enforce in domestic courts. The ICJ then observed that “Article 36, paragraph 1 [of the Vienna Convention], creates individual rights [for the national concerned], which . . . may be invoked in this Court by the national State of the detained person.” Id. at 36 (alterations and omission in original) (emphasis added) (quoting LaGrand, 2001 IC.J. at 494) (internal quotation marks omitted). This conclusion — that Article
36 creates “individual rights” that can be asserted by a sending State in the ICJ — is not inconsistent with the view that Article 36 creates potential benefits for individuals but that an individual does not have a right that can be vindicated in a damages action for such a violation. And even if the import of this statement were that Article 36 confers enforceable rights directly upon individuals, we do not think that the ICJ’s brief analysis in LaGrand leading to such a determination casts doubt upon our conclusions above. After listing the basic requirements of Article 36, the ICJ noted that Article 36 uses the term “rights” and allows a detained foreign national to refuse assistance from the sending State. See LaGrand, 2001 I.C.J. at 494. The ICJ then stated that “[t]he clarity of these provisions, viewed in their context, admits of no doubt.” Id. Yet a proclamation of certainty is not a substitute for persuasiveness. We do not believe that the relevant provision at issue here indicates an intention, much less a clear one, to confer rights directly upon individuals that can be vindicated in a damages action for failure to inform them of the obligation of consular notification and access.
5. The Convention’s Travaux Préparatoires Do Not Require a Different Result
The Supreme Court has observed that it has “traditionally considered as [an] aid[ ] to [a treaty’s] interpretation the [treaty’s] negotiating and drafting history (travaux préparatoires).” Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996); see also Société Nationale Industrielle Aérospatiale, 482 U.S. at 534 (“The treaty’s history, the negotiations, and the practical construction adopted by the parties may [in addition to text and context] be relevant.” (emphasis added) (internal quotation marks omitted)). The terms in which the Supreme Court has described the interpretive effect of the negotiating and drafting history of a treaty, the travaux préparatoires, suggest a usefulness that is conditional and secondary to the text and context of the treaty. As Article 32 of the Vienna Convention on the Law of Treaties, see note 19 ante and accompanying text, explains further, recourse to the travaux “may be had” only to (1) “confirm the meaning resulting from” the consideration of text and context or (2) “determine the meaning when the interpretation according to [text and context] (a) [l]eaves the meaning ambiguous or obscure[ ] or (b) [l]eads to a result which is manifestly absurd or unreasonable.” 1155 U.N.T.S. at 340.
Whether the travaux support plaintiff’s stance is by no means clear. Plaintiff directs us to several discussions of “individual rights” during debates over proposed amendments to the Convention. See, e.g., 1 Official Records, United Nations Conference on Consular Relations 332 (1963) (statement of the Spanish delegate, asserting that “[t]he right of the nationals of a sending State to communicate with and have access to the consulate and consular officials of their own countries . . . was one of the most sacred rights of foreign residents in a country”). Yet, as is the case with references to “rights” in the legislative history of statutes, see Pennhurst, 451 U.S. at 18-20, such terminology does not usefully distinguish between (1) legal obligations owed directly to individuals and enforceable by them under municipal (i.e., domestic) law, and (2) legal obligations that might inhere to the benefit of individuals but are owed to a representative entity. The plaintiff has also not directed us to any passage in which the Conference considered whether these “rights” could be vindicated in an action for damages, nor have we located such a passage. In any event, scattered examples drawn from the travaux to support plaintiff’s position would not defeat the deference (“great weight”) we owe to the clear and consistent views of the United States.
B. Plaintiff’s Claims Cannot Support a Cause of Action Pursuant tothe ATS
Apart from his claims based on an implied right of action under the Vienna Convention and § 1983, plaintiff claims that this alleged violation of Article 36(1)(b)(third) gives rise to a claim pursuant to the ATS for a violation of customary international law. The novel tort proposed, a form of unlawful detention, does not meet the Supreme Court’s requirements for recognition of a customary international law tort. We conclude that plaintiff has not shown that his detention without being
informed of the availability of consular notification and access amounts to a tort in violation of customary international law cognizable under the ATS, 28 U.S.C. § 1350.
In Sosa v. Alvarez-Machain, the Supreme Court acknowledged that the ATS is a jurisdictional statute but that it also grants courts the power recognize “private causes of action for certain torts in violation of the law of nations,” 542 U.S. 692, 724 (2004). The Court cautioned against recognition of actionable international norms and observed that only a “modest number” of customary international law torts are cognizable under the ATS. Id. Among the many reasons counseling restraint, the Court emphasized that the “collateral consequences of making international rules privately actionable argue for judicial caution.” Id. at 725. To provide a cause of action under the ATS, a customary international law tort must meet a “high bar” for recognizing new causes of action: it must be both specific and well-accepted. Id. We conclude that plaintiffs’ ATS claim fails the second criterion.
To form the basis of a ATS suit, the alleged tort must be “defined with a specificity comparable to the features of the 18th-century paradigms” of torts in violation of the law of nations — violations of safe conducts, offenses against ambassadors, and piracy. Sosa, 542 U.S. at 725 id. at 715 (quoting 4 W. Blackstone, Commentaries on the Laws of England
68 (1769)). These paradigmatic examples involve offenses “principally incident to whole states or nations and not individuals seeking relief in court.” Id. at 720 (citations and internal quotation marks omitted). Plaintiff has pointed to no sources which evince support for the specific customary international law tort proposed here — detention without being informed of the availability of consular notification and access. Cf. Vietnam Ass’n, 517 F.3d at 119-23 (concluding that plaintiffs had failed to describe a relevant norm of customary international law with the requisite specificity). To the contrary, it appears that none of the States-parties to the Convention, “[w]ith one possible exception,” recognize such a tort in their domestic law. See note 5
ante. Thus, it cannot be said that the tort proposed has “attained the status of a binding customary norm,” Sosa, 542 U.S. at 737; see also Flores, 414 F.3d at 248 (“[C]ustomary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”). Nor can it be said that imprisonment in violation of Article 36(1)(b)(third) is “so bad that those [who engage in this conduct] become enemies of the human race.”Sosa, 542 U.S. at 737.
We also note that this inquiry “involve[s] an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at 732-33. This consideration weighs against recognition of plaintiff’s proposed cause of action. A customary international law tort for imprisonment in violation of Article 36(1)(b)(third) suffers from the same infirmities as the tort proposed i Sosa: “the label [enemy of the human race] would never fit the reckless policeman who botches his [notice of the availability of consular notification and access], even though that same officer might pay damages [for violating any applicable] municipal law.” Sosa, 542 U.S. at 737. Accordingly, we cannot recognize an ATS cause of action for the alleged violations of Article 36(1)(b)(third).
For the reasons stated above, we conclude that the obligation of detaining authorities to inform an alien of the consular notification and access requirements set forth in Article 36(1)(b)(third) of the Vienna Convention does not authorize an individual to vindicate in an action for damages a violation of Article 36(1)(b)(third) pursuant to § 1983, ATS, or directly under the Convention. Accordingly, the judgment of the District Court is AFFIRMED.
(2006), the Supreme Court referred to two requirements imposed by Article 36(1)(b) by eliding the first and second sentences of Article 36. Because the three sentences of Article 36(1)(b) impose three distinct sets of obligations, we will refer to them as Art. 36(1)(b)(first) (the detaining authority’s obligation to notify the detainee’s consulate if the detainee so requests), Art. 36(1)(b)(second) (any communication to the consular officers by the detainee shall be forwarded by authorities without delay), and Art. 36(1)(b)(third) (the detaining authority’s obligation to inform a detainee of the availability of consular notification and access).
(2008) (enforcement in state courts of the judgment of the International Court of Justice concerning Article 36 violations); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) (suppression of evidence, in habeas corpus
proceeding); Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007) (claim for damages); Jogi v. Voges, 480 F.3d 822, 835 (7th Cir. 2007) (on petition for rehearing) (claim for damages); United States v. Emuegbunam, 268 F.3d 377, 388-94 (6th Cir. 2001) (dismissal of indictment and reversal of conviction); United States v. Jimenez-Nava, 243 F.3d 192, 198
(5th Cir. 2001) (suppression of statement); United States v. Santos, 235 F.3d 1105, 1106-08 (8th Cir. 2000) (suppression of confession and reversal of conviction); United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en banc) (suppression of confession and dismissal of indictment). Our own court has considered an ineffective assistance of counsel claim based on counsel’s failure to move to dismiss an indictment on the basis of violations of Article 36. United States v. De La Pava, 268 F.3d 157, 163-66
(2d Cir. 2001).
The International Court of Justice (“ICJ”) is a multinational body charged with discerning and applying international law. Under the Charter of the United Nations, “[a]ll Members of the United Nations [including the United States] are ipso facto parties to the Statute of the International Court of Justice.” Charter of the United Nations, 59 Stat. 1033, 1051, T.S. No. 993 (1945), Art. 93 (effective Oct. 24, 1945).
The United States Senate consented to the Charter of the United Nations on July 28, 1945, 91 Cong. Rec. 8185, 8190 (1945), causing the United States to be a party to the Statute of the ICJ. The Senate famously conditioned its adoption of President Truman’s Declaration that the United [S]tates would accede to the compulsory jurisdiction of the ICJ with the Connally Reservation, which permits the United States to opt out of the jurisdiction of the ICJ over a particular dispute if [it] determines that the dispute is domestic in nature and that its domestic jurisdiction applies. See Acceptance of Compulsory Jurisdiction of the International Court of Justice, 92 Cong. Rec. 10,694-97 (1946); Dep’t State Bull., Sept. 1946, at 452-53.
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Supreme Court has declined to resolve whether the Vienna Convention is self-executing. See Medellín, 552 U.S. at ___ n. 4, 128 S. Ct. at 1357
n. 4. The parties have not raised this question, and we need not decide it here.
The States Parties to the present Convention,
Recalling that consular relations have been established between peoples since ancient times,
Having in mind the Purposes and Principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Considering that the United Nations Conference on Diplomatic Intercourse and Immunities adopted the Vienna Convention on Diplomatic Relations which was opened for signature on 18 April 1961,
Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States,
Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention,
Have agreed as follows. . . .
21 U.S.T. at 79 (footnotes omitted).
The United States also informs us that many of its compliance efforts have been directed toward New York City. The State Department has distributed hundreds of pocket reference cards and training videos to state and local law enforcement entities in the City, and has provided training sessions and briefings for law enforcement officials on a number of occasions. Id. at 7-8.
With respect to the policies and practices of New York City law enforcement authorities themselves, defendants and the United States have informed us that the New York City Police Department’s Patrol Guide sets forth procedure No. 208-56, which governs the processing of the arrests of foreign nationals and requires that certain consulates be notified if one of their nationals is arrested and that nationals from other countries be informed that they may contact their consulates. The New York City Department of Corrections maintains a similar procedure for foreign nationals in custody. These basic requirements are not significantly different from those in place when defendant was arrested in 1992. Defs.’ Apr. 18, 2007 Letter 2; Amicus‘s May 11, 2007 Supp. Letter Br. 8. The NYPD’s Police Student’s Guide explains these requirements, and the City holds seminars for law enforcement officials on the Convention’s consular notification provisions. Amicus‘s May 11, 2007 Supp. Letter Br. 8 (citing http://www.nyc.gov/html/unccp/html/consular/special_events.shtml).
Because we hold that Article 36(1)(b)(third) does not create rights that can be vindicated in a damages action brought directly under the Convention or pursuant to § 1983, we disagree that plaintiff can state a claim for a private right of action created by the Convention. Nonetheless, we note that assuming arguendo that plaintiff has an individual right under the Convention, his claim for damages pursuant to § 1983 would likely be actionable. See Gonzaga, 536 U.S. at 284
(“[B]ecause § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes[,] [o]nce a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.”) (citation omitted). Section 1983 would likely provide a cause of action for damages in the case of a treaty violation in the same manner that § 1983 provides a cause of action for remedying a statutory violation. See, e.g., Cornejo, 504 F.3d at 858 (“[A]n 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.”) (internal quotation marks omitted).
Accordingly, a conclusion that the treaty does not provide a right to damages ignores the fact that it is § 1983 that allows for damages and not the treaty. Notably, in Sanchez-Llamas, the remedy sought was based on the treaty itself, such as suppression of evidence or dismissal of an indictment. Accordingly, the Court found that the treaty did not grant such a remedy and avoided the question of whether the treaty created an individual right. 548 U.S. at ___, 126 S. Ct. at 2677-78.
(7th Cir. 2007) (“Although international treaties as a rule do not create individual rights, Sosa recognizes that international law in general, and thus treaties in particular, occasionally do so.”(citation omitted)) Cornejo v. County of San Diego, 504 F.3d 853, 859 (9th Cir. 2007) (“Whether or not aptly characterized as a `presumption,’ the general rule is that [i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies.”(international quotation marks and citations omitted)); Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980) (“[A] treaty must be interpreted in accord with the rule that treaty violations are normally to be redressed outside the courtroom.”); see also Dry v. United States, 235 F.3d 1249, 1256 (10th Cir. 2000) (“It is well-settled that [t]he very great majority of Indian treaties create tribal, not individual, rights.” (internal quotation marks and citations omitted)); Ligon v. Johnston, 164 F. 670, 672
(8th Cir. 1908) (“Until specific, private, individual rights attach pursuant to law, the enforcement of such trusts [as created by treaty] must be at the bar of public conscience. They are not justiciable in the courts.”). It should be noted that courts of appeals have occasionally conflated the question of whether a treaty is self-executing with whether the same treaty creates individual rights. See, e.g., Mannington Mills, 595 F.2d at 1298.
[T]he State Department has concluded that “[t]he [Vienna Convention] and the US-China bilateral consular convention are treaties that establish state-to-state rights and obligations. . . . They are not treaties establishing rights of individuals. The right of an individual to communicate with his consular official is derivative of the sending state’s right to extend consular protection to its nationals when consular relations exist between the states concerned.”
Id. (omission and second and third alterations in original). Quoting further from the State Department answers, the First Circuit related that it was the State Department’s position that “[t]he [only] remedies for failures of consular notification under the [Vienna Convention] are diplomatic, political, or exist between states under international law.”Id. (second and third alterations in original) (internal quotation marks omitted).
n. 30 (1987) (noting, when declining to give deference to an agency’s interpretation of a statute, the agency’s “long pattern of erratic treatment of the issue”). And even where an extensive series of prior positions might justify decreased deference, at a minimum those positions, when compared with the current position, must reflect plain inconsistency on the part of the Government. Cf. id. (describing “three different ways” in which an agency interpreted the statute at issue). We find no such inconsistency here.