Jogi, Tejpaul v. Voges, Tim ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1657
TEJPAUL S. JOGI,
Plaintiff-Appellant,
v.
TIM VOGES, RON CARPER,
DAVID MADIGAN, and JOHN PILAND,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-CV-2067—Harold A. Baker, Judge.
____________
ARGUED SEPTEMBER 3, 2003—DECIDED SEPTEMBER 27, 2005
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Since 1969, the United States
has been a party to the Vienna Convention on Consular
Relations (Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77,
T.I.A.S. No. 6820, 596 U.N.T.S. 261, a multilateral treaty.
Among other things, the Vienna Convention requires its
member states to ensure that a foreign national charged
with a violation of host country law knows that he or she
has the right to contact an official representative of his or
her native country for assistance with legal proceedings.
Tejpaul S. Jogi is an Indian citizen who was charged with
aggravated battery with a firearm in Champaign County,
Illinois. Jogi pleaded guilty to the crime and served six
2 No. 01-1657
years of a twelve-year sentence; at that point, he was
removed from the United States and returned to India. No
state official ever advised him of his right under the Vienna
Convention to contact the Indian consulate for assistance,
nor is there any hint that the Champaign County law
enforcement officials ever contacted the Indian consulate on
their own initiative on Jogi’s behalf.
At some point after Jogi was in prison, he learned about
the Vienna Convention. This prompted him to file several
lawsuits, but the only one that is pertinent for our purposes
is his present case, in which he filed a pro se complaint
seeking compensatory, nominal, and punitive damages to
remedy this violation. He named as defendants various
Champaign County law enforcement officials, including the
two investigators who questioned him after his arrest.
Jogi’s complaint relied on the Alien Tort Statute (ATS), 28
U.S.C. § 1350, which establishes jurisdiction in the district
courts over a civil action by an alien for a tort committed in
violation of a treaty of the United States. See generally
Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004). The district
court found that the state officials had violated the Vienna
Convention, but it concluded that Jogi’s allegations were
insufficient to trigger subject matter jurisdiction under the
ATS.
To put it mildly, this case raises a bewildering array
of complex issues. Although we find that the district
court erred in granting the defendants’ motion to dismiss on
the ground it chose, we recognize the difficulty of the
questions that lie just below its surface. With the benefit of
the Supreme Court’s Sosa decision, which was not available
at the time the district court ruled, we conclude that the
court had jurisdiction over the case. We further conclude
that Jogi had an individual right to consular notification
under the Vienna Convention. We therefore reverse and
remand for further proceedings consistent with this opinion.
No. 01-1657 3
I
A citizen of India, Jogi emigrated to the United States
in 1990, at the age of fourteen. On October 6, 1995, he
was charged in Champaign County, Illinois, with aggra-
vated battery with a firearm. Jogi turned himself in to
the authorities on October 18, 1995. When Jogi surren-
dered, Ron Carper, a Champaign County investigator, took
him to a conference room where Tim Voges, another
investigator, and Jogi’s mother were present. Carper
advised Jogi of his Miranda rights, but he did not
inform Jogi that he had the right under the Convention to
contact the Indian consulate. Carper knew, however, that
Jogi was Indian; his interview report listed Jogi as
“Indian/Male”and Carper discussed with Jogi’s mother
the location of his father and sister in India and the
possibility that Jogi might leave the country. (Another
investigator not named as a defendant in this lawsuit
also spoke with Jogi’s mother about the location of Jogi’s
father in India and the status of Jogi’s passport.) On July 9,
1996, Jogi pleaded guilty to aggravated battery with
a firearm. As we noted earlier, he received a sentence of
12 years’ imprisonment, but he was released after serving
six years. At no time was Jogi ever informed of his right
to contact the Indian consulate.
On May 15, 2000, Jogi filed suit in federal court, alleg-
ing a violation of the Vienna Convention; he cited the
ATS, 28 U.S.C. § 1350, as a basis for the district court’s
jurisdiction. He named Voges, Carper, David Madigan (the
Champaign County Sheriff) and John Piland (the Cham-
paign County State’s Attorney who prosecuted Jogi) as
defendants. Jogi’s pro se complaint sought damages “not
only to compensate Plaintiff, for violation of his Inter-
national Rights but also to deter the Champaign County
Law Enforcement Agency or any other Law Enforcement
Agency across the nation from committing the same viola-
tion.” He attached an affidavit asserting that he
4 No. 01-1657
was unaware of his Vienna Convention rights and that
he would have contacted the Indian consulate to avail
himself of its assistance with the Champaign County
prosecution had he been informed of his right to do so.
The district court held that it did not have subject matter
jurisdiction over the complaint because Jogi had failed to
sufficiently plead a tort under the ATS. Jogi v. Piland, 131
F. Supp. 2d 1024, 1027 (C.D. Ill. 2001). The court doubted
that Jogi could show harm from the treaty violation, noting
that Jogi had been advised of his Miranda rights and had
been represented by counsel throughout his legal proceed-
ings. Id. It concluded that the defendants’ omissions may
have “technically violated” the treaty, but that they did not
trigger jurisdiction under the ATS because the statute
applies only to “shockingly egregious violations of univer-
sally recognized principles of international law.” Id. (cita-
tion and internal quotation marks omitted). After deciding
that the alleged conduct in this case did not meet the
“shockingly egregious” standard, the district court dis-
missed the complaint with prejudice. Id.
After Jogi filed a timely notice of appeal in this court,
we appointed counsel and ordered additional briefing.
Order, Jogi v. Voges, No. 01-1657 (7th Cir. Oct. 29, 2002).
As a result of his criminal conviction, Jogi was removed to
India on September 17, 2002. Because his action seeks only
money damages, however, his removal did not render the
case moot.
II
We review de novo the district court’s dismissal for lack
of subject matter jurisdiction, accepting the complaint’s
factual allegations as true and drawing all reasonable
inferences in Jogi’s favor. Transit Express, Inc. v. Ettinger,
246 F.3d 1018, 1023 (7th Cir. 2001). We bear in mind that
Jogi’s pro se complaint should be liberally construed. Haines
No. 01-1657 5
v. Kerner, 404 U.S. 519, 520 (1972); Kyle v. Patterson, 196
F.3d 695, 697 (7th Cir. 1999). At this stage, it makes no
difference whether Jogi pleaded the proper legal theories in
his complaint. His only task, once he established a proper
jurisdictional basis for his suit, was to satisfy the notice
pleading standards of Rule 8. In that connection, we ask
whether “the facts he has presented would entitle him to
relief under any applicable legal theory.” McCullah v.
Gadert, 344 F.3d 655, 659 (7th Cir. 2003) (noting that “it is
well established that plaintiffs are under no obligation to
plead legal theories”).
We begin this opinion, as we must, with the question
of the district court’s subject matter jurisdiction. We then
turn to the question whether Jogi has stated a claim upon
which relief can be granted, when he asserts that he has an
individually enforceable right under the Vienna Convention
that he is entitled to raise in a private civil action. Next, we
ask whether Jogi’s action is barred under the Supreme
Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994),
on the theory that recovery here would be inconsistent with
the validity of his criminal conviction. Finally, we address
several additional points that cannot be resolved at this
stage of the litigation.
A
The district court made it clear that it was “considering
whether to dismiss [Jogi’s] section 1350 claim for lack of
subject matter jurisdiction.” 131 F. Supp. 2d at 1026. In
reviewing its decision to do just that, we take as our
starting point the Supreme Court’s decision in Sosa. There,
the respondent Humberto Alvarez-Machain had brought a
civil action against Mexican citizen José Francisco Sosa,
who (along with several other Mexicans) had abducted
Alvarez from his home in Mexico and transported him to
the United States, at the behest and allegedly as the agent
6 No. 01-1657
of the U.S. Drug Enforcement Administration. Alvarez
relied on the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b)(1), §§ 2671-2680, and the ATS as a basis for both
jurisdiction and his right to recover. The Supreme Court
rejected both theories, but we need discuss only the ATS
portion of its opinion.
The ATS, which the Sosa Court reminded us was dubbed
a “legal Lohengrin” by Judge Friendly, see IIT v. Venecap,
Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975), quoted at 124 S. Ct.
at 2754-55, is a model of brevity, if not clarity. On the books
since the First Judiciary Act of 1789 and essentially
unchanged since then, it now reads as follows: “The district
courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.” 28 U.S.C. § 1350.
The first question the Court had to decide was whether the
statute was jurisdictional only, or if it also authorized the
creation of a new cause of action for torts in violation of
international law. It concluded that “the statute was
intended as jurisdictional in the sense of addressing the
power of the courts to entertain cases concerned with a
certain subject.” 124 S. Ct. at 2755. That, however, was the
easy part. After concluding that the ATS was a jurisdic-
tional statute, the Court then considered how it interacted
with the international law of the late eighteenth century. It
concluded that Congress would not have enacted a “still-
born” law, and thus that there must have been some “torts
in violation of the law of nations” that “would have been
recognized within the common law of the time.” Id.
Although the Court acknowledged that most of the law of
nations at the time the ATS was enacted dealt with the
norms governing the behavior of nation-states with one
another, it recognized that this body of law included “a
second, more pedestrian element . . . that did fall within the
judicial sphere, as a body of judge-made law regulating the
No. 01-1657 7
conduct of individuals situated outside domestic boundaries
and consequently carrying an international savor.” Id. at
2756. There was also “a sphere in which these rules binding
individuals for the benefit of other individuals overlapped
with the norms of state relationships.” Id. Examples of the
last type included violations of safe conducts, infringements
of the rights of ambassadors, and piracy. The Court con-
cluded that the ATS was enacted with the last set of
concerns in mind. Although it did not intend the ATS to be
“a jurisdictional convenience to be placed on the shelf” for
later use, id. at 2758, it did expect that the statute would
“furnish jurisdiction for a relatively modest set of actions
alleging violations of the law of nations.” Id. at 2759.
The remainder of the Court’s discussion in Sosa is of only
marginal relevance to Jogi’s case, because it is concerned
with claims based on customary international law, or, in the
statute’s words, “the law of nations.” It is in that sense that
we must understand the Court’s comment that “courts
should require any claim based on the present-day law of
nations to rest on a norm of international character ac-
cepted by the civilized world and defined with a specificity
comparable to the features of the 18th-century paradigms
we have recognized.” Id. at 2761-62. It analyzed Alvarez’s
claim as one that did not arise under any treaty. Id. at
2766. Although the Court recognized that Alvarez relied on
the Universal Declaration of Human Rights, G.A. Res. 217A
(III), U.N. Doc. A/810 (1948), and on the International
Covenant on Civil and Political Rights art. 9, Dec. 19, 1996,
999 U.N.T.S. 171, as evidence of the international norms he
was trying to vindicate, the Court made it clear that neither
instrument was the kind of “treaty” to which the ATS
refers. The Universal Declaration is nothing more than
that—a declaration adopted by the U.N. General Assembly
with no positive force of law. The Covenant, while a treaty
to which the United States has adhered, was expressly
declared to be non-self-executing at the time of ratifica-
8 No. 01-1657
tion and thus did not create any obligations enforceable
in the federal courts. 124 S. Ct. at 2767. In the end, there-
fore, the Court rejected Alvarez’s claim as one that failed
not for lack of jurisdiction, but because it did not pass the
substantive threshold the Court had defined for cases based
on customary international law norms.
Seen in this light, Jogi’s case is straightforward from the
point of view of subject matter jurisdiction. His com-
plaint alleges that he is the victim of a tort committed in
violation of a treaty of the United States—the Vienna
Convention. He does not assert that his claim arises under
customary international law, and so the knotty question
of the degree to which customary international law is in fact
federal law, or federal common law as opposed to
state common law, need not detain us. The ATS confers
jurisdiction on the federal district courts to adjudicate
this type of case. Indeed, so does 28 U.S.C. § 1331, which
today says that “[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitu-
tion, laws, or treaties of the United States.” In 1789, of
course, there was no equivalent to today’s § 1331, which
was not added to the Judicial Code until 1875. See Act
of March 3, 1875, § 1, 18 Stat. 470. Moreover, from 1875
until 1976, there was an amount in controversy require-
ment attached to the general federal question jurisdictional
statute. See generally 13B WRIGHT, MILLER & COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3561.1 (2d ed. 1984).
Thus, from 1789 until 1976, aliens wishing to sue in federal
courts for torts in violation of treaties would have had to
use § 1350 as a jurisdictional basis unless their claim met
the amount in controversy requirement. Today, we cannot
imagine a case that an alien could bring under the “treaty”
branch of § 1350 that would not also fall within the “treaty”
jurisdiction of § 1331. The “law of nations” branch of § 1350
may continue to serve the purpose of making the federal
court’s jurisdiction over this class of claims clear, however
broad or narrow it may prove to be after Sosa.
No. 01-1657 9
B
This takes us to the crux of the case, whether we are
relying on § 1331 jurisdiction or § 1350 jurisdiction: has
Jogi stated a claim under the Vienna Convention on which
relief can be granted? Here, too, there are a number of
distinct points we must discuss. First, what exactly does the
Vienna Convention have to say about consular notification
and for what purpose was this provision included? Second,
is the Vienna Convention a self-executing treaty, or is it
(like the Covenant on Civil and Political Rights supra)
something that is non-self-executing and thus automatically
unavailable to Jogi? Third, even if the Convention is self-
executing, does it create an individual right that can be
enforced in court, or does it address only rights between
states party to the Convention? Finally, assuming that
there are individually enforceable rights, what kind of
remedial structure does the Convention contemplate? We
take these questions in the order we have listed them here.
1. The Vienna Convention and Article 36
The Vienna Convention is a 79-article, multilateral treaty
to which both the United States and India are signatories.
The treaty covers topics such as consular relations in
general; consular functions; facilities, privileges, and
immunities of consular personnel; and communications with
nationals of the sending state. The Preamble recalls that
“consular relations have been established between peoples
since ancient times,” notes the principle of sovereign
equality among states, recognizes the usefulness of a
convention on this subject, and, importantly for our case,
“realiz[es] that the purpose of such privileges and immuni-
ties is not to benefit individuals but to ensure the efficient
performance of functions by consular posts on behalf of
their respective States.” Vienna Convention, pmbl.
10 No. 01-1657
Notwithstanding the latter paragraph of the Preamble,
the Vienna Convention singles out individual rights in at
least two places. The first is in the list of consular functions
found in Article 5, which includes “helping and assisting
nationals, both individuals and bodies corporate, of the
sending State,” Art. 5(e), and “representing or arranging
appropriate representation for nationals of the sending
State before the tribunals and other authorities of the
receiving State, for the purpose of obtaining, in accordance
with the laws and regulations of the receiving State,
provisional measures for the preservation of the rights and
interests of these nationals, where, because of absence or
any other reason, such nationals are unable at the proper
time to assume the defence of their rights and interests,”
Art. 5(i).
The second, which is the critical one for Jogi, is Article 36,
which reads as follows:
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 con-
sular post of the sending State if, within its consular
district, a national of that State is arrested or commit-
ted 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;
No. 01-1657 11
(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 deten-
tion 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 pro-
viso, 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.
Vienna Convention, Art. 36 (emphasis added). Among other
requirements, this provision instructs authorities of a
receiving state to notify an arrested foreign national of “his
rights” under the Convention “without delay.” Id. at ¶1(b).
There is an obvious tension between the broad language
of the clause in the Preamble that appears to disclaim any
general intent to protect individuals, and the language of
Article 36. We address it in more detail below, when we
consider whether Jogi has an individual right of action, but
it is helpful here to set the stage for that discussion. One
commentator has observed that of the Vienna Convention’s
79 articles, the one with the “most tortuous and checkered
background is indubitably Article 36.” LUKE LEE, VIENNA
CONVENTION ON CONSULAR RELATIONS 107 (1966). The
delegates to the Vienna Convention discussed and debated
Article 36 extensively before it was finally approved. Id.
at 107-14; 1 United Nations Conference on Consular
Relations: Official Records, at 3, U.N. Doc. A/Conf. 2 5/6,
U.N. Sales. No. 63.X.2 (1963).
12 No. 01-1657
The debates that took place as the Convention was be-
ing drafted reflect close attention to the question of the
individual’s right to consular notification. The district
court’s decision in Standt v. City of New York, 153 F. Supp.
2d 417 (S.D.N.Y. 2001), provides a useful summary of these
discussions:
[There was] widespread concern with the question of
individual rights. For example, a proposed amendment
by Venezuela that would have eliminated the individual
right of consular communication was withdrawn after
receiving strong opposition from other member states.
2 United Nations Conference on Consular Relations:
Official Records, at 37, 38, 84, 85, 331-34, U.N. Doc.
A/Conf. 2 5/6, U.N. Sales. No. 63.X.2 (1963). . . . The
United States, in particular, proposed language in-
tended to “protect the rights of the national concerned.”
Id. at 337. In short, “the ‘legislative history’ of the
Treaty supports the interpretation that Article 36 was
intended to confer individual rights on foreign nation-
als.” [Mark J.] Kadish, [Article 36 of the Vienna Conven-
tion on Consular Relations: A Search for the Right to
Counsel,] 18 MICH. J. INT’L L. [565], at 599 [1997].
Standt, 153 F. Supp. 2d at 425-26.
The First Circuit had occasion to visit this issue in the
case of United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en
banc), a case to which we return below. In an opinion
concurring in part and dissenting in part, then-Chief Judge
Torruella provided this helpful background; rather than re-
invent the wheel, we quote from his opinion:
The positions of the delegates from the United Kingdom
and Australia were typical of the prevailing view. The
former expressed his rejection of a proposal that a
consul be notified only if the detained national so
requested, because “[i]t could well make the provisions
No. 01-1657 13
of Article 36 ineffective because the person arrested
might not be aware of his rights.” [LEE, VIENNA CON-
VENTION ON CONSULAR RELATIONS] at 83-84 (emphasis
supplied); see also id. at 339, 344. The Australian
delegate stated along a similar vein, that “[t]here
was no need to stress the extreme importance of not
disregarding, in the present or any other interna-
tional document, the rights of the individual.” Id. at 331
(emphasis supplied). In fact the United States delegate
proposed an amendment to Article 36(1)(b) that the
notification to a consul of a national’s detention be
made at the request of the national, “to protect the
rights of the national concerned.” Id. at 337 (emphasis
supplied). From these and other statements by the
various national delegates there should be little doubt
that the treaty under consideration concerned not only
consular rights but also the separate individual rights
of detained nationals. . . . [At this point the opinion
gives specific references to the statements of delegates
from 15 different countries.] [S]ee also Mark Kadish,
Article 36 of the Vienna Convention on Consular Rela-
tions: A Search For the Right to Counsel, 18 Mich. J.
Int’l L. 565 (1997) (discussing the Vienna Convention’s
history in this respect); Report of the United States
Delegation to the United Nations Conference on Con-
sular Relations, Vienna, Austria, March 4 to April 22,
1963 (hereinafter “U.S. Vienna Report”).
206 F.3d at 73-74. As then-Chief Judge Torruella went on
to point out, the ultimate amendment that became Article
36 was adopted by a margin of 65 votes to 2, with 12
abstentions. The United States delegate voted in favor of
the amendment. Id. at 74.
Secretary of State William P. Rodgers indicated that
Article 36 provided an individual right in his Letter of
Transmittal, through which he officially submitted the
certified copy of the Convention to the President. There he
14 No. 01-1657
wrote that Article 36 “requires that authorities of the
receiving State inform the person detained of his right to
have the fact of his detention reported to the consular post
concerned and of his right to communicate with that
consular post.” Id. (emphasis added). The U.S. Vienna
Report explained that “[t]his provision has the virtue of
setting out a requirement which is not beyond means of
practical implementation in the United States, and, at the
same, is useful to the consular service of the United States
in the protection of our citizens abroad.” Id. (emphasis
added).
This is enough to give a sense of what Article 36 is about,
and the two positions on its scope. Jogi argues that it
confers an individual right on a person from the “sending”
state to consular notification, while the defendants urge
that it does no such thing, and that the notification process
is for the convenience of the consular services and their
respective governments. We return to this question below,
when we consider whether such an individual right exists.
Before doing so, however, it is necessary to decide whether
the Convention is self-executing; if it is not, then Jogi’s suit
must fail for that reason alone. See Frolova v. Union of
Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985)
(per curiam) (holding that if not implemented by enabling
legislation, a treaty can provide a basis for a private lawsuit
only if it is self-executing).
2. Self-Executing Nature of the Convention
The RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
lists three different ways in which a treaty might be non-
self-executing:
(a) if the agreement manifests an intention that it shall
not become effective as domestic law without the
enactment of implementing legislation,
No. 01-1657 15
(b) if the Senate in giving consent to a treaty, or Con-
gress by resolution, requires implementing legislation,
or
(c) if implementing legislation is constitutionally
required.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES § 111(4) (1987) (cited below as “RE-
STATEMENT THIRD”). The commentary adds that “the
intention of the United States determines whether an
agreement is to be self-executing in the United States or
should await implementation by legislation or appropriate
executive or administrative action.” Id. cmt. h. Thus, an
agreement is self-executing if it can be given effect without
further legislation or analogous domestic measures. Finally,
the Comment cautions that “[w]hether a treaty is self-
executing is a question distinct from whether the treaty
creates private rights or remedies.” Id.
Another commentator has suggested that there are four
grounds on which a court might conclude that a treaty is
not self-executing, despite the fact that treaties have the
status of “supreme Law of the Land” under the Supremacy
Clause of the Constitution, Art. VI, cl. 2. See Carlos Manuel
Vazquez, The Four Doctrines of Self-Executing Theories, 89
AM. J. INT’L L. 695 (1995). Professor Vazquez’s list is as
follows:
First, legislative action is necessary if the parties to the
treaty (or perhaps the U.S. treaty makers alone)
intended that the treaty’s object be accomplished
through intervening acts of legislation. Second, legisla-
tive action is necessary if the norm the treaty estab-
lishes is “addressed” as a constitutional matter to the
legislature. Third, legislative action is necessary if the
treaty purports to accomplish what under our Constitu-
tion may be addressed only by statute. Finally, legisla-
tion is necessary if no law confers a right of action on a
plaintiff seeking to enforce the treaty.
16 No. 01-1657
Id. at 696-97. The last of these categories, however, is not
what it appears to be on the surface. Later in the article,
Professor Vazquez both criticizes it in principle as being too
likely to confuse and says that “[i]t is a mistake, however,
to assume that a treaty may be enforced in court by private
parties only if it confers a private right of action itself.” Id.
at 719. It is in that context that he goes on to argue that
“[t]he ‘private right of action’ to enforce a treaty may have
its source in laws other than the treaty itself.” Id. at 720
(emphasis added).
In our view, the better practice is to keep separate the
question of self-executing character and the question of a
private right of action, in keeping with the position in the
commentary to the RESTATEMENT THIRD. In principle, the
latter question is one that we should analyze in the same
way we would approach legislation from Congress where
the question was whether a private right of action exists
under the law. We therefore confine our attention here to
the question whether legislative action was necessary
before the Vienna Convention could be enforced.
Some of the factors we have identified in the past as
helpful in discerning the intent of the parties to the agree-
ment include (1) the language and purposes of the agree-
ment as a whole; (2) the circumstances surrounding its
execution; and (3) the nature of the particular obligation
imposed by the part of the agreement under consideration
(bearing in mind that treaties may be partly self-executing
and partly not). Frolova, supra, 761 F.2d at 373. As we
noted there, if the parties’ intent is clear from the treaty’s
language, courts will not inquire into the remaining factors.
Id.
Other circuits use similar tests to determine whether a
treaty is self-executing. See People of Saipan v. U.S. Dept.
of Interior, 502 F.2d 90, 97 (9th Cir. 1974) (finding that
whether an international agreement “establishes affirma-
No. 01-1657 17
tive and judicially enforceable obligations without imple-
menting legislation” depends on “the purposes of the treaty
and the objectives of its creators, the existence of domestic
procedures and institutions appropriate for direct imple-
mentation, the availability and feasibility of alternative
enforcement methods, and the immediate and long-range
social consequences of self- or non-self-execution”); Diggs v.
Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976) (“In deter-
mining whether a treaty is self-executing courts look to the
intent of the signatory parties as manifested by the lan-
guage of the instrument, and, if the instrument is uncer-
tain, recourse must be had to the circumstances surround-
ing its execution.”). In our view, the duties imposed by
Article 36 meet these criteria.
Before drawing a final conclusion, however, we must take
into account the views of the State Department. During the
Senate hearings prior to ratification, a State Department
official testified that it was “entirely self-executive [sic] and
does not require any implementing or complementing
legislation.” S. Exec. Rep. No. 91-9 app. at 5 (1969) (state-
ment of Deputy Legal Adviser J. Edward Lyerly) (cited in
Note, Too Sovereign But Not Sovereign Enough: Are U.S.
States Beyond the Reach of the Law of Nations?, 116 HARV.
L. REV. 2654, 2657 (2003)). In a recent brief to the Supreme
Court, the United States government acknowledged “the
accepted understanding that the Vienna Convention is self-
executing,” citing this same legislative history. Brief for
United States as Amicus Curiae at 26, Medellin v. Dretke,
125 S. Ct. 2088 (2005) (No. 04-5928). Courts have also noted
that the treaty was self-executing when ratified. See, e.g.,
Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998)
(Butzner, J., concurring) (“The Vienna Convention is a self
executing treaty . . . .” (citing Faulder v. Johnson, 81 F.3d
515, 520 (5th Cir. 1996))); United States v. Torres-Del Muro,
58 F. Supp. 2d 931, 932 (C.D. Ill. 1999) (“[T]he Court notes,
and the parties agree, that the [Vienna Convention] is ‘self-
18 No. 01-1657
executing’ . . . .”); see also David J. Bederman, Deference or
Deception: Treaty Rights as Political Questions, 70 U. COLO.
L. REV. 1439, 1482 (1999) (noting that in litigation related
to a Vienna Convention violation, the U.S. government did
not dispute that the Convention was self-executing).
Statements of this type are entitled to great weight in our
assessment of this question. See generally RESTATEMENT
THIRD § 111 cmt. h. Although there is also evidence to
suggest that the State Department believed that the only
remedies for a violation of the Vienna Convention are
diplomatic or political, that point is better addressed when
we consider the question of an individual action. It is quite
possible for a treaty to take effect without the need for
further legislation, and nonetheless for that treaty to confer
rights only at the state-to-state level. We therefore conclude
that the Vienna Convention is a self-executing treaty, and
move on to the issue that has generated the greatest degree
of controversy in recent years: whether Article 36 confers
individually enforceable rights.
3. Individual Right of Action
When the United States Senate gave its advice and
consent to the ratification of the Vienna Convention in
1969, 115 Cong. 30997 (by a vote of 81 to 0), it became the
“supreme Law of the Land,” binding on the states. U.S.
Const. art. VI, cl. 2; Whitney v. Robertson, 124 U.S. 190, 194
(1888) (“By the constitution, a treaty is placed on the same
footing, and made of like obligation, with an act of legisla-
tion.”); Breard v. Greene, 523 U.S. 371, 376 (1998) (per
curiam) (stating that treaties are “on a full parity” with acts
of Congress) (citing Reid v. Covert, 354 U.S. 1, 18 (1957)
(plurality opinion)).
The Supreme Court has recognized that treaties, which
are basically agreements among sovereign nations, may
provide for individual rights. United States v. Raucher, 119
No. 01-1657 19
U.S. 407 (1886) (holding that the provisions of an extradi-
tion treaty, permitting prosecution only for the crime on
which extradition was based, could serve as a defense to the
attempted prosecution of another crime); United States v.
Alvarez-Machain, 504 U.S. 655, 664-70 (1992) (Alvarez-
Machain I) (considering whether Alvarez’s abduction
violated the terms of an extradition treaty between the
United States and Mexico); Head Money Cases, 112 U.S.
580, 598 (1884) (stating that “a treaty may also contain
provisions which confer certain rights upon the citizens
or subjects of one of the nations” that “partake of the nature
of municipal law, and which are capable of enforcement as
between private parties in the courts of the country”).
In the case of the Vienna Convention, the Supreme Court
has said, without finally deciding the point, that Article 36
“arguably confers on an individual the right to consular
assistance following arrest.” Breard, 523 U.S. at 376. In
Breard, the Court faced facts that have become common-
place in Vienna Convention cases: a criminal defendant who
was trying to use federal habeas corpus or other criminal
proceedings to seek a remedy for a Convention violation
based in the criminal law. Id. at 377 (finding that Breard
had procedurally defaulted his Vienna Convention claim on
habeas review by failing to raise it in state court). On
analogous facts, this court and most of our sister circuits
have refrained from deciding whether an individual right
exists under the Vienna Convention; instead, most have
concluded that the various remedies available to criminal
defendants, such as the quashing of an indictment or the
exclusionary rule, are not appropriate cures for a violation.
United States v. Li, supra, 206 F.3d at 60 (1st Cir. en banc)
(“We hold that irrespective of whether or not the treaties
create individual rights to consular notification, the appro-
priate remedies do not include suppression of evidence or
dismissal of the indictment.”); United States v. De La Pava,
268 F.3d 157, 165 (2d Cir. 2001) (“Even if we assume
arguendo that De La Pava had judicially enforceable rights
20 No. 01-1657
under the Vienna Convention—a position we do not
adopt—the Government’s failure to comply with the
consular notification provision is not grounds for dismissal
of the indictment.”); Murphy v. Netherland, 116 F.3d 97,
100 (4th Cir. 1997) (finding that “even if the Vienna
Convention on Consular Relations could be said to create
individual rights” the defendant could not obtain habeas
relief because his claim was procedurally defaulted); United
States v. Page, 232 F.3d 536, 541 (6th Cir. 2000) (concluding
that “although some judicial remedies may exist, there is no
right in a criminal prosecution to have evidence excluded or
an indictment dismissed due to a violation of Article 36”);
United States v. Chaparro-Alcantara, 226 F.3d 616, 621
(7th Cir. 2000) (“It is sufficient for present purposes to
assume that such an individual right is created by the
Convention and to confront squarely whether the
exclusionary rule is the appropriate sanction for a violation
of that right.”); United States v. Lawal, 231 F.3d 1045, 1048
(7th Cir. 2000) (same); United States v. Ortiz, 315 F.3d 873,
886 (8th Cir. 2002) (“Even if we assume for present pur-
poses that the Convention creates an individually enforce-
able right, it would not follow, on this record, that the
statements should be excluded merely because the Conven-
tion has been violated.”); United States v. Lombera-
Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc)
(declining to decide whether Article 36 creates an individu-
ally enforceable right but concluding that suppression of
evidence is an inappropriate remedy); United States v.
Minjares-Alvarez, 264 F.3d 980, 986-87 (10th Cir. 2001)
(declining to decide whether the Vienna Convention creates
individually enforceable rights, but concluding that sup-
pression is not an appropriate remedy); United States v.
Duarte-Acero, 296 F.3d 1277, 1282 (11th Cir. 2002) (holding
that a violation of the Vienna Convention does not warrant
dismissal of an indictment); United States v. Cordoba-
Mosquera, 212 F.3d 1194, 1196 (11th Cir. 2000) (per
curiam) (same). Two circuits have found, in the context of
No. 01-1657 21
a criminal proceeding, that the treaty does not confer
individual rights. United States v. Emuegbunam, 268 F.3d
377, 394 (6th Cir. 2001); United States v. Jimenez-Nava,
243 F.3d 192, 198 (5th Cir. 2001).
This court is the first one to be directly confronted with
the question whether a private civil action independent of
the criminal proceeding may be based on the Convention.
Lombera-Camorlinga, 206 F.3d at 888 (noting that the court
did “not decide whether a violation of Article 36 may be
redressable by more common judicial remedies such as
damages . . . .”). The distinction between enforcement or
remedial measures that affect criminal prosecutions and
civil actions is an important one, as the literature exploring
the possibility of deterring unlawful police behavior through
damages actions under 42 U.S.C. § 1983 or Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), illustrates. See, e.g., Harold J. Krent,
How To Move Beyond the Exclusionary Rule: Structuring
Judicial Response To Legislative Reform Efforts, 26 PEPP. L.
REV. 855 (1999); L. Timothy Perrin, H. Mitchell Caldwell,
Carol A. Chase & Ronald W. Fagan, If It’s Broken, Fix It:
Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669
(1998); Walter E. Dellinger, Of Rights and Remedies: The
Constitution As A Sword, 85 HARV. L. REV. 1532 (1972). Our
consideration here of the question whether there is a
private action for Jogi is therefore in no way inconsistent
with our conclusion in Chaparro-Alcantara, supra, that the
exclusionary rule is not available for violations of the
Vienna Convention.
Our inquiry begins, naturally, with the text of Article 36.
“In construing a treaty, as in construing a statute, we first
look to its terms to determine its meaning.” Alvarez-
Machain I, 504 U.S. at 663; Sumitomo Shoji America, Inc.
v. Avagliano, 457 U.S. 176, 180 (1982) (“Interpretation of
[the Treaty] must, of course, begin with the language of the
Treaty itself [, and] [t]he clear import of Treaty language
22 No. 01-1657
controls . . . .”); see also Vienna Convention on the Law of
Treaties (Treaty Convention), May 23, 1969, art. 26, 1155
U.N.T.S. 331, 339 (governing the interpretation of treaties
and directing courts to look first to the plain language of a
treaty when attempting to determine its meaning). Article
36 ¶1(b) states, plainly enough, that authorities “shall
inform the person concerned without delay of his rights
under this sub-paragraph.” (emphasis added). Justice
O’Connor, noting this language, has observed that, “if a
statute were to provide, for example, that arresting authori-
ties ‘shall inform a detained person without delay of his
right to counsel,’ I question whether more would be re-
quired before a defendant could invoke that statute to
complain in court if he had not been so informed.” Medellin
v. Dretke, 125 S. Ct. 2088, 2104 (2005) (O’Connor, J.,
dissenting from dismissal of writ of certiorari as improvi-
dently granted). A number of judges have noted that “the
text emphasizes that the right of consular notice and
assistance is the citizen’s” and that this language is
“mandatory and unequivocal.” Breard v. Pruett, 134 F.3d at
622 (Butzner, J., concurring); Li, 206 F.3d at 72 (Torruella,
C.J., concurring in part, dissenting in part) (“I have some
difficulty envisioning how it is possible to frame language
that more unequivocally establishes that the protections of
Article 36(1)(b) belong to the individual national, and that
the failure to promptly notify him/her of these rights
constitutes a violation of these entitlements by the detain-
ing authority.”); United States v. Hongla-Yamche, 55 F.
Supp. 2d 74, 77 (D. Mass. 1999) (“The language of Article 36
clearly refers to the existence of an individual right.”).
Faced with this unambiguous text, the defendants rely
heavily on the treaty’s preamble, which we reproduced
above. The critical language is found in the fifth paragraph,
which says: “Realizing that the purpose of such privileges
and immunities is not to benefit individuals but to ensure
the efficient performance of the functions by consular posts
No. 01-1657 23
on behalf of their respective States . . . .” Vienna Conven-
tion, pmbl. (emphasis added). That statement is a perfectly
good reflection of almost every other article of the Conven-
tion. It is at best, however, ambiguous with respect to
Article 36. First, it is not clear whether it has any applica-
tion at all to Article 36. We are inclined to agree with Jogi
that the most reasonable understanding of this language is
as a way of emphasizing that the Convention is not de-
signed to benefit diplomats in their individual capacity, but
rather to protect them in their official capacity. See United
States v. Rodrígues, 68 F. Supp. 2d 178, 182 (E.D.N.Y. 1999)
(“[I]t appears that the purpose of [the Preamble] is not to
restrict the individual notification rights of foreign nation-
als, but to make clear that the Convention’s purpose is to
ensure the smooth functioning of consular posts in general,
not to provide special treatment for individual consular
officials.”); Kadish, supra, 18 MICH. J. INT’L L. at 594 (“The
privileges and immunities granted in the Vienna Conven-
tion are to enable the consul to perform his enumerated
functions, not to benefit the consul personally. Thus, the
preamble language refers to the individual consul, not
individual foreign nationals.”).
It is a mistake in any event to allow general language of a
preamble to create an ambiguity in specific statutory or
treaty text where none exists. Courts should look to materi-
als like preambles and titles only if the text of the instru-
ment is ambiguous. See, e.g., Whitman v. American Truck-
ing Assns, 531 U.S. 457, 483 (2001) (inappropriate to look
at title of section to create ambiguity if text is clear; the
clear text “eliminates the interpretive role of the title,
which may only shed light on some ambiguous word or
phrase in the statute itself”); City of Erie v. Pap’s A.M., 529
U.S. 277, 290-91 (2000) (rejecting language of preamble of
local ordinance as definitive for First Amendment chal-
lenge); Fidelity Federal Sav. & Loan Assn v. de la Cuesta,
458 U.S. 141, 158 n.13 (1982) (look to the preamble only for
24 No. 01-1657
the administrative construction of the regulation, to which
deference is due). See generally 2A SUTHERLAND, STATUTES
AND STATUTORY CONSTRUCTION § 47.04, at 146 (5th ed.
1992, Norman Singer ed.) (“The preamble cannot control
the enacting part of the statute in cases where the enacting
part is expressed in clear, unambiguous terms.”).
In United States v. Stuart, 489 U.S. 353 (1989), the
Supreme Court stated “a treaty should generally be con-
strued . . . liberally to give effect to the purpose which
animates it and that [e]ven where a provision of a treaty
fairly admits of two constructions, one restricting, the other
enlarging, rights which may be claimed under it, the more
liberal interpretation is to be preferred.” Id. at 368 (citation
and internal quotation marks omitted); Asakura v. City of
Seattle, 265 U.S. 332, 342 (1924) (“Treaties are to be
construed in a broad and liberal spirit, and, when two
constructions are possible, one restrictive of rights that may
be claimed under it and the other favorable to them, the
latter is to be preferred.”).
Particularly in this light, we conclude that even though
many if not most parts of the Vienna Convention address
only state-to-state matters, Article 36 confers individual
rights on detained nationals. Although international
treaties as a rule do not create individual rights, see
Chaparro-Alcantara, 226 F.3d at 620-21, Sosa recognizes
that international law in general, and thus treaties in
particular, occasionally do so. See 124 S. Ct. at 2756.
Although two of our sister circuits have issued opinions in
which they reject this conclusion, two considerations
persuade us that we should not follow their lead: first, they
were both addressing the specific argument that Article 36
provided some kind of shield against criminal enforce-
ment—a position that we too have rejected, and second,
these decisions both predated Sosa. See United States v.
Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001); United
States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001).
No. 01-1657 25
Both the Fifth and the Sixth Circuits relied on the language
of the Preamble, the fact that the State Department in a
litigation context has taken the position that the Vienna
Convention does not create individual rights, and the
presumption against implied rights of action, in reaching
their conclusions.
We have already explained why we do not regard the
Preamble as something capable of creating ambiguity in the
otherwise plain language of Article 36. The negotiation
history of Article 36 is replete with concern about the
question of individual rights. For example, as the Standt
court recalled, “a proposed amendment by Venezuela that
would have eliminated the individual right of consular
communication was withdrawn after it received strong
opposition from other member states. 2 United Nations
Conference on Consular Relations: Official Records [“Offi-
cial Records”], at 37, 38, 84, 85, 331-34, U.N. Doc. A/Conf.
2 5/6, U.N. Sales No. 63.X.2 (1963).” 153 F. Supp. 2d at 425-
26. The United States itself proposed language intended to
“protect the rights of the national concerned.” Official
Records at 337. See also Li, supra, 206 F.3d at 73-74
(separate opinion of Torruella, C.J.).
It is also revealing that the regulations issued by the
Department of Justice and (now) the Department of
Homeland Security that address the subject of consular
notification highlight the right of the individual alien to
notification. See 28 C.F.R. § 50.5 (DOJ); 8 C.F.R. § 236.1(e)
(DHS). The regulations in fact draw an interesting distinc-
tion between notifications: under the DOJ regulation,
§ 50.5(a)(1), the alien has the right to request the authori-
ties not to notify his or her home country, unless some other
treaty takes that right away from him or her; the DHS
regulation also acknowledges that particular treaties may
require notification. By careful design, as the travaux
preparatoires reveal, Article 36 of the Vienna Convention
was worded in a way to ensure that only “if [the alien] so
26 No. 01-1657
requests” would the receiving authorities of the state that
had him in custody notify his home country’s consular post.
This indicates that the right conferred by Article 36 belongs
to the individual, not to the respective governments. Too
much notification was not Jogi’s problem in any event.
The State Department sends regular notices to state and
local officials reminding them of their notification obliga-
tions under the treaty. Kadish, 18 MICH. J. INT’L L. at 599
& nn. 211-14 (citing Breard v. Netherland, 949 F. Supp.
1255 (E.D. Va. 1996)). The Foreign Affairs Manual issued
by the State Department says that “Article 36 of the Vienna
Consular Convention provides that the host government
must notify the arrestee without delay of the arrestee’s
right to communicate with the American consul.” (emphasis
added). Courts have observed that the United States has
repeatedly invoked Article 36 on behalf of American citizens
detained abroad who have not been granted the right of
consular access. United States v. Superville, 40 F. Supp. 2d
672, 676 & n.3 (D. V.I. 1999) (noting United States inter-
ventions in Iran in 1979 and Nicaragua in 1986); see
Gregory Dean Gisvold, Strangers in a Strange Land:
Assessing the Fate of Foreign Nationals Arrested in the
United States by State and Local Authorities, 78 MINN. L.
REV. 771, 792-94 (1994).
Finally, our discussion would be incomplete without
acknowledging that the international body with the author-
ity to render binding interpretations of the Convention, the
International Court of Justice (ICJ), has definitively
announced that Article 36 gives rise to individually enforce-
able rights. See LaGrand Case (Germany v. United States
of America), 2001 I.C.J. 104, at ¶ 77 (Judgment of June 27),
which held that “Article 36, paragraph 1, creates individual
rights, which . . . may be invoked in this Court by the
national State of the detained person. These rights were
violated in the present case.” Lest there was any doubt that
the rights that could be invoked by the national state of the
No. 01-1657 27
detained person before the ICJ were somehow insulated
from recognition in the national courts of the detaining
state, the ICJ clarified in Case Concerning Avena and Other
Mexican Nationals (Mexico v. United States), 2004 I.C.J. No.
128 (Judgment of March 31), that the United States had an
obligation to permit the detainees to raise their Article 36
claims in the national courts. See, e.g., Avena, ¶ 139
(“[W]hat is crucial in the review and reconsideration process
is the existence of a procedure which guarantees that full
weight is given to the violation of the rights set forth in the
Vienna Convention, whatever may be the actual outcome of
such review and reconsideration.”).
At the time the ICJ decided LaGrand and Avena, the
United States had expressly consented to the Court’s
jurisdiction to resolve disputes under the Vienna Conven-
tion. See Vienna Convention on Consular Relations,
Optional Protocol Concerning the Compulsory Settlement
of Disputes, Apr. 24, 1963, 21 U.S.T. 326. Although the
Department of State, at the President’s instruction, has
since notified the United Nations (the official depository for
the Optional Protocol) that the United States was with-
drawing from the Protocol, the President announced at the
same time that he was directing the state courts to follow
Avena. See John R. Crook (ed.), Contemporary Practice of
the United States Relating to International Law: U.S.
Strategy for Responding to ICJ’s Avena Decision, 99 AM. J.
INT’L L. 489, 489-90 & nn. 4, 7 (2005). We interpret that
action as an acknowledgment on the part of the Executive
Branch that the withdrawal from the Optional Protocol is
a prospective action only, and that it has no effect on
disputes that were tendered to and finally decided by the
ICJ before the withdrawal.
Although we are of the opinion that the United States
is bound by ICJ rulings in cases where it consented to the
court’s jurisdiction, just as it would be bound by any
arbitral procedure to which it consented, we recognize that
28 No. 01-1657
this proposition is controversial in some circles. The
Supreme Court has not yet taken the step we have de-
scribed, even though it has noted that courts “give respect-
ful consideration to the interpretation of an international
treaty rendered by an international court with jurisdiction
to interpret [it].” Breard v. Greene, 523 U.S. 371, 375 (1998);
see also Medellin v. Dretke, 125 S. Ct. 2088, 2105 (2005)
(opinion of O’Connor, dissenting from dismissal of writ of
certiorari as improvidently granted, discussing whether
ICJ’s interpretation of Article 36 should be taken as
authoritative); Torres v. Mullin, 540 U.S. 1035, 1037 (2003)
(opinions of Stevens, J., and Breyer, J., dissenting from the
denial of certiorari and discussing same). We therefore
confine ourselves to giving the “respectful consideration” to
the ICJ’s decisions in LaGrand and Avena that Breard calls
for. These decisions reinforce, rather than contradict, the
interpretation of Article 36 we have already reached. We
note as well that the courts that (at least in the criminal
context) have not shared our view did not have the benefit
of the later Avena decision. Buttressed by the views of the
body that will bind all of the other states party to the
Vienna Convention, we find that Jogi had an individual
right to notification under the Convention.
4. Remedial Structure
Last, we must decide whether Jogi is entitled to enforce
his individual right under the Vienna Convention in a
private action in court. See Alexander v. Sandoval, 532 U.S.
275, 286-87 (2001) (emphasizing, in the context of statutory
interpretation, that the judicial task is to decide both
whether Congress intended to create a private right and
whether it intended to create a private remedy). We note in
this connection that because Jogi is relying on a particular
treaty for his claim, rather than the law of nations, there is
no need for him to show that the violation about which he
No. 01-1657 29
is complaining was “shockingly egregious.” That phrase, on
which the district court had relied, comes from Zapata v.
Quinn, 707 F.2d 691, 692 (2d Cir. 1983) (per curiam); the
court also referred to Kadic v. Karadizic, 70 F.3d 232, 246
(2d Cir. 1995). Those cases attempted to raise claims under
the “law of nations” half of the ATS, not the treaty half.
Moreover, that language has almost certainly been super-
seded by the test the Court announced for “law of nations”
claims in Sosa. Treaty-based claims are better analyzed in
a manner analogous to claims under statutes: if there is an
implied private right of action, the claimant can go forward;
if not, he must rely on public enforcement measures to
vindicate his rights.
In the area of statutory construction, it is the intent of
Congress that governs whether a private action exists. See
Alexander, supra; Touche Ross & Co. v. Redington, 442 U.S.
560, 575 (1979). By parity of reasoning, when we are
construing a treaty, we must decide whether the drafters of
the treaty intended to make a particular part of it privately
enforceable. It is unremarkable that the Vienna Convention
does not spell out particular methods of enforcement.
Treaties, after all, are signed by countries with differing
legal systems that provide different kinds of remedies.
What Article 36 of the Vienna Convention does provide,
however, is an instruction that “[t]he 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.” Vienna
Convention, art. 36 (emphasis added). This means that a
country may not reject every single path for vindicating the
individual’s treaty rights. In the absence of any administra-
tive remedy or other alternative to measures we have
already rejected (such as suppression of evidence), a
damages action is the only avenue left.
30 No. 01-1657
While Jogi’s claim for damages is extravagant, running
into the millions of dollars, this is of no legal significance.
Courts agree that even nominal damages are appropriate
for the vindication of a right. See Kyle v. Patterson, 196 F.3d
695, 697 (7th Cir. 1999). Because we have found that
jurisdiction is proper under either the ATS or the general
federal question statute, 28 U.S.C. § 1331, we need not
decide whether a violation of Article 36 is best characterized
as a “tort” (perhaps something along the lines of breach of
duty to disclose in the context of a special relationship) or
a regulatory violation. We also place little weight on earlier
court conclusions that a failure to give Miranda warnings
cannot support a claim under § 1983. E.g., Giuffre v. Bissel,
31 F.3d 1241, 1256 (3d Cir. 1994); Warren v. City of Lincoln,
864 F.2d 1436, 1442 (8th Cir. 1989). The latter cases were
decided before the Supreme Court determined in Dickerson
v. United States, 530 U.S. 428 (2000), that the Miranda
warnings themselves have constitutional status. Although
a plurality of the Court expressed the opinion that civil
remedies continue to be unavailable for Miranda violations
in Chavez v. Martinez, 538 U.S. 760 (2003), the full Court
has never taken that step. Most importantly, civil remedies
are unnecessary for Miranda violations, because statements
taken in violation of the suspect’s Miranda rights are
inadmissible.
We conclude, therefore, relying on the language of Article
36, the purpose of the Article, and the need to interpret the
Vienna Convention in a manner consistent with the other
states party to the Convention, that there is an implied
private right of action to enforce the individual’s Article 36
rights.
III
We have only a few matters left before we can conclude.
First is the defendants’ argument that Jogi’s claim is barred
No. 01-1657 31
by Heck v. Humphrey, supra. The short answer is no. Heck
holds that a plaintiff seeking damages for an allegedly
unconstitutional conviction or for other harm caused by
actions whose unlawfulness would undermine the validity
of the conviction “must prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254.” 512 U.S. at 486-87. Recently, in Wilkinson v.
Dotson, 125 S. Ct. 1242 (2005), the Court clarified the Heck
rule. It explained that Heck prevents prisoners from making
an end-run around the need to challenge the validity or
duration of their convictions using the vehicle of habeas
corpus, rather than through an action under 42 U.S.C. §
1983 or Bivens. If success in the lawsuit would not spell
immediate or speedier relief, then § 1983 remains available
for use, and Heck does not bar the action. Id. at 1248.
Awarding civil damages to Jogi will have no effect
whatsoever on his conviction or sentence. He has finished
serving the entire sentence, and he is now back in India.
Moreover, it does not logically follow that if Jogi’s right to
consular access had been respected, he necessarily would
have avoided conviction. His claim is more like the Fourth
Amendment claims that we have held accrue at the time of
the violation and are not Heck-barred. See, e.g., Gonzales v.
Entress, 133 F.3d 551, 554 (7th Cir. 1998).
IV
In closing, we wish to flag two issues that are likely to
arise on remand. The first is implied by our discussion of
Heck: when exactly did Jogi’s claim arise, and did he file
suit in time? The statute of limitations is an affirmative
defense, see FED. R. CIV. P. 8(c), and so our question about
this does not affect the decision about subject matter
32 No. 01-1657
jurisdiction or his ability to state a claim. Nevertheless, it
will be necessary to decide what statute of limitations
applies (the two-year statute that federal courts in Illinois
borrow for purposes of § 1983 claims, or some other stat-
ute), when Jogi’s claim accrued, whether the discovery rule
applies to his case, and ultimately whether he filed in time.
Neither the procedural posture of the case nor the record
allow us to resolve that point now. Second, we think it
inevitable that the issue of qualified immunity on the part
of the defendants will arise. Although normally we might be
inclined to find waiver, because the defendants have not
even whispered the phrase thus far, this is an unusual case.
We leave it to the district court’s sound discretion to decide
whether to allow the defendants (who have not yet filed an
answer, of course, because they won below on their motion
under Rule 12(b)(1)) to raise this defense on remand.
The judgment of the district court is REVERSED, and the
case is REMANDED for further proceedings consistent with
this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-27-05