Cornejo v. County of San Diego ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EZEQUIEL NUNEZ CORNEJO, 
Plaintiff-Appellant,
v.
COUNTY OF SAN DIEGO; CITY OF No. 05-56202
SAN DIEGO; CITY OF ESCONDIDO;
THE CITY OF OCEANSIDE; PAUL  D.C. No.
CV-05-00726-MLH
LACROIX; WILLIAM MCDANIEL,
OPINION
California Deputy Sheriff; JON
MONTION; DOES 1-100; CITY OF
CARLSBAD,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
June 25, 2007—Pasadena, California
Filed September 24, 2007
Before: Arthur L. Alarcón, Dorothy W. Nelson, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Rymer;
Dissent by Judge D.W. Nelson
12981
CORNEJO v. COUNTY OF SAN DIEGO 12983
COUNSEL
Genaro Lara, Vista, California, (argued); Emile M. Mullick,
San Bernardino, California, for the plaintiffs-appellants.
12984 CORNEJO v. COUNTY OF SAN DIEGO
Donald Shanahan, San Diego, California, (argued); David
Axtman, San Diego, California, (argued); Susan D. Ryan,
Escondido, California; Ronald R. Ball, Carlsbad, California;
David M. Daftary, Oceanside, California, for the defendants-
appellees.
Douglas N. Letter (argued), Sharon Swingle, Department of
Justice, Washington, D.C., for amicus curiae the United
States.
OPINION
RYMER, Circuit Judge:
This appeal requires us to resolve an issue left open in our
en banc decision in United States v. Lombera-Camorlinga,
206 F.3d 882, 884 (9th Cir. 2000): whether Article 36 of the
Vienna Convention on Consular Relations1 creates judicially
enforceable rights that may be vindicated in an action brought
under 42 U.S.C. § 1983.
Ezequiel Nunez Cornejo’s complaint seeks damages and
injunctive relief against the County of San Diego, several dep-
uty sheriffs, and various cities within the county on behalf of
a class of foreign nationals who were arrested and detained
without being advised of their right to have a consular officer
notified as required by Article 36. The district court dismissed
the action, concluding that Cornejo could not bring a § 1983
claim for violation of the Convention because it creates no
private rights of action or corresponding remedies.
We agree with the district court that Article 36 does not
create judicially enforceable rights. Article 36 confers legal
rights and obligations on States in order to facilitate and pro-
1
April 24, 1963, 21 U.S.T. 77, 100-101, 569 U.N.T.S. 261.
CORNEJO v. COUNTY OF SAN DIEGO 12985
mote consular functions. Consular functions include protect-
ing the interests of detained nationals, and for that purpose
detainees have the right (if they want) for the consular post to
be notified of their situation. In this sense, detained foreign
nationals benefit from Article 36’s provisions. But the right to
protect nationals belongs to States party to the Convention; no
private right is unambiguously conferred on individual detain-
ees such that they may pursue it through § 1983. Accordingly,
we affirm.
I
Cornejo is a national and citizen of Mexico. His First
Amended Complaint alleges that when he was arrested, San
Diego County Sheriff’s Deputies Paul LaCroix, William
McDaniel, and Jon Montion failed to inform him, and others
similarly situated whom he seeks to make part of a class, of
the individual right conferred by Article 36 and by California
Penal Code § 834c, “to contact a consular official of his coun-
try.” He claims that in this, the County and the deputies vio-
lated the class’s due process rights and “right of information
which would have assisted them and would have resulted in
a different outcome of their case had they been provided with
consular and legal assistance.”2 The complaint prays for dam-
ages, a declaration that the practices and customs of the
county and cities violate individual rights under the United
States Constitution and California Penal Code § 834c, and for
an order requiring compliance with the mandatory provisions
of the Convention and California Penal Code § 834c.3
2
The complaint says nothing about a prosecution or conviction, nor does
the record contain any such evidence. Accordingly, we assume that Heck
v. Humphrey, 512 U.S. 477 (1994), which precludes a § 1983 action when
a judgment in favor of the plaintiff would necessarily imply invalidity of
his conviction or sentence unless the conviction or sentence has already
been invalidated, is not implicated.
3
We note that a claim for violation of state law is not cognizable under
§ 1983. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).
12986 CORNEJO v. COUNTY OF SAN DIEGO
The County, deputy sheriffs, and City moved to dismiss for
failure to state a claim. The district court granted the motions,
thereby mooting Cornejo’s request for class certification. It
ruled that he could not state a claim under § 1983 for viola-
tions of the Vienna Convention because Article 36 does not
provide for a private right of action; that his Monell4 claim
against the county and cities failed as he was not deprived of
a constitutionally protected interest; and that, in any event,
Cornejo pled no harm on account of anything done by Carls-
bad, Escondido, San Diego, or Oceanside.
Cornejo timely appealed, and the United States has
appeared as amicus curiae in support of the county, deputy
sheriffs, and the cities.
II
[1] The Vienna Convention is a multilateral international
agreement “that governs relations between individual nations
and foreign consular officials.” Sanchez-Llamas v. Oregon,
126 S. Ct. 2669, 2691 (2006) (Breyer, J., dissenting). Adopted
in 1963, 170 States are States parties.5 The United States rati-
fied the Convention in 1969. Id. Article 36 provides:
Communication and contact with nationals of the
sending State
1. With a view to facilitating the exercise of con-
sular functions relating to nationals of the sending
State:
4
Monell v. Dept. of Social Services of the City of New York, 436 U.S.
658, 690-91 (1978) (holding that a plaintiff states a civil rights claim
against a municipality under § 1983, by showing that he has suffered a
deprivation of a constitutionally protected interest; and that the deprivation
was caused by an official policy, custom or usage of the municipality).
5
The Convention entered into force on March 19, 1967. See 596
U.N.T.S. at 261.
CORNEJO v. COUNTY OF SAN DIEGO 12987
(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 communica-
tion with and access to consular officers of the send-
ing 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 be forwarded by
the said authorities without delay. The said authori-
ties shall inform the person concerned without delay
of his rights under this subparagraph;
(c) consular officers shall have the right to visit a
national of the sending State who is in prison, cus-
tody 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 judgement. Never-
theless, consular officers shall refrain from taking
action on behalf of a national who is in prison, cus-
tody 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 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.
12988 CORNEJO v. COUNTY OF SAN DIEGO
21 U.S.T. 77, 100-101. Here, Mexico is the “sending State”
and the United States is the “receiving State.”
For any treaty to be susceptible to judicial enforcement it
must both confer individual rights and be self-executing.
There is no question that the Vienna Convention is self-
executing. As such, it has the force of domestic law without
the need for implementing legislation by Congress. See U.S.
Const., art. VI, cl. 2 (“[A]ll Treaties 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 . . . .”); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314
(1829); Medellín v. Dretke, 544 U.S. 660, 686 (2005)
(O’Connor, J., dissenting) (citing Head Money Cases, 112
U.S. 580, 598-99 (1884)). But “the questions of whether a
treaty is self-executing and whether it creates private rights
and remedies are analytically distinct.” Id. at 687; Restate-
ment (Third) of Foreign Relations Law of the United States
§ 111 cmt. h (hereinafter Restatement). “While a treaty must
be self-executing for it to create a private right of action
enforceable in court without implementing domestic legisla-
tion, all self-executing treaties do not necessarily provide for
the availability of such private actions.” Renkel v. United
States, 456 F.3d 640, 643 n.3 (6th Cir. 2006).
[2] Therefore, the question here is whether Congress, by
ratifying the Convention, intended to create private rights and
remedies enforceable in American courts through § 1983 by
individual foreign nationals who are arrested or detained in
this country. It is an open question for us.6 Only the Seventh
6
Sitting en banc in Lombera-Camorlinga, we vacated a panel opinion
holding that Article 36 created an individual right that was enforceable by
way of a motion to suppress evidence of post-arrest statements made by
a foreign national before being advised of the right to notification of this
consulate. 206 F.3d at 883. Although we discussed the panel’s holding and
noted there was “some support” for this view, we did not decide the issue
because we held that even if some judicial remedies are available for vio-
lation of Article 36, the exclusion of evidence is not one of them. Id. at
885.
 CORNEJO v. COUNTY OF SAN DIEGO 12989
Circuit Court of Appeals has answered this question squarely,
and did so affirmatively in Jogi v. Voges, 480 F.3d 822 (7th
Cir. 2007). However, other circuits that have considered vio-
lations of Article 36 in criminal proceedings point in the
opposite direction. Two have concluded that the Convention
confers no enforceable individual rights, United States v.
Jimenez-Nava, 243 F.3d 192, 197-98 (5th Cir. 2001) (reject-
ing argument that Article 36 creates enforceable individual
rights and declining to apply the exclusionary rule as an
appropriate remedy for an Article 36 violation); United States
v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001), and oth-
ers have held that regardless of whether it does or not, reme-
dies such as dismissal of the indictment or suppression of
evidence are not available. United States v. De La Pava, 268
F.3d 157, 164-65 (2d Cir. 2001) (suggesting, but not deciding,
that the Convention does not confer judicially-enforceable
rights for individuals); United States v. Li, 206 F.3d 56 (1st
Cir. 2000) (en banc) (same), id. at 66 (Selya & Boudin, JJ.,
concurring) (stating that “[n]othing in [its] text explicitly pro-
vides for judicial enforcement of their consular access provi-
sions at the behest of private litigants”); United States v.
Minjares-Alvarez, 264 F.3d 980, 986-87 (10th Cir. 2001);
United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196
(11th Cir. 2000); United States v. Santos, 235 F.3d 1105,
1108 (8th Cir. 2000) (holding that any violation of Article 36
was harmless error), id. at 1109 (Beam, J., concurring) (stat-
ing that the Convention confers “no individually enforceable
right under Article 36 to be informed of a right to consular
notification . . . .”); see also Murphy v. Nederland, 116 F.3d
97, 100 (4th Cir. 1997) (concluding that habeas petitioner
“failed to establish prejudice from the alleged violation of the
Vienna Convention because he is unable to explain how con-
tacting the Mexican consulate would have changed either his
guilty plea or his sentence”). The Supreme Court has con-
fronted similar issues arising out of Article 36, but not this
one. See, e.g., Sanchez-Llamas, 126 S. Ct. at 2677-87 (2006)
(assuming in habeas proceedings that Article 36 grants indi-
viduals enforceable rights but finding no authority in the Con-
12990 CORNEJO v. COUNTY OF SAN DIEGO
vention itself for suppressing evidence and declining to
impose the exclusionary rule on Oregon as a remedy; apply-
ing procedural bar rule to claims asserted by habeas petitioner
despite contrary interpretation of the International Court of
Justice); Breard v. Greene, 523 U.S. 371 (1998) (per curiam)
(applying Virginia’s procedural default doctrine to a Vienna
Convention claim on habeas review; remarking that “[a]ny
rights that the Consul General might have by virtue of the
Vienna Convention exist for the benefit of [the sending State],
not for him as an individual.”).7
[3] As Cornejo’s claim is pursuant to § 1983, which pro-
vides a vehicle for seeking relief for violation of the “Consti-
tution and laws,”8 we are guided by the Supreme Court’s
treatment of the analogous issue of enforcement of personal
rights arising under federal statutes through § 1983. It is clear
from Gonzaga University v. Doe, 536 U.S. 273, 283 (2002),
that “it is rights, not the broader or vaguer ‘benefits’ or ‘inter-
ests,’ that may be enforced under the authority of that sec-
tion.” Thus, an “unambiguously conferred right” phrased in
terms of the person benefitted is essential before a statute —
and by extension, a treaty having the force of federal law —
may support a cause of action under § 1983. Id., at 282-83.
“In construing a treaty, as in construing a statute, we first
look to its terms to determine its meaning.” United States v.
Alvarez-Machain, 504 U.S. 655, 663 (1992). As it is a treaty
that is being construed, however, and a treaty is an agreement
7
The Court granted certiorari in Medellín v. Dretke, 544 U.S. 660
(2005), to consider whether a federal court is bound by a ruling of the
International Court of Justice, but dismissed it as improvidently granted in
light of an intervening memorandum from the President that the United
States would discharge its international obligations.
8
We note the government’s submission that “laws” cannot include trea-
ties, but we have no need to confront the issue given our disposition.
Rather, we assume for purposes of this case that a treaty such as this one
that is self-executing and thus law, has that status. See Baldwin v. Franks,
120 U.S. 678 (1887); Maine v. Thiboutot, 448 U.S. 1 (1980).
CORNEJO v. COUNTY OF SAN DIEGO 12991
between States that implicates the foreign relations of the
United States, we are also aided by canons that apply spe-
cially to international agreements. Among them: “While
courts interpret treaties for themselves, the meaning given
them by the departments of government particularly charged
with their negotiation and enforcement is given great weight.”
Sanchez-Llamas, 126 S. Ct. at 2685 (quoting Kolovrat v. Ore-
gon, 366 U.S. 187, 194 (1961)). “An international agreement
is to be interpreted in good faith in accordance with the ordi-
nary meaning to be given to its terms in their context and in
the light of its object and purpose.” Restatement § 325(1). In
that connection, the “context” of a treaty includes its pream-
ble. Vienna Convention on the Law of Treaties (“Treaty Con-
vention”) art. 31(2), May 23, 1969, 1155 U.N.T.S. 331.
“[S]ubsequent practice between the parties in the application
of the agreement [is] to be taken into account in its interpreta-
tion.” Restatement § 325(2).9
[4] Treaties customarily confer rights upon the States that
are parties to them. While treaties may confer enforceable
individual rights, see, e.g., Head Money Cases, 112 U.S. 580,
598-99 (1884); Lombera-Camorlinga, 206 F.3d at 885, most
courts accept a “presumption” against inferring individual
rights from international treaties. See Emuegbunam, 268 F.3d
at 389; De La Pava, 268 F.3d at 164; Jimenez-Nava, 243 F.3d
at 195-96; but see Sanchez-Llamas, 126 S. Ct. at 2697
(Breyer, J., dissenting). Whether or not aptly characterized as
a “presumption,” the general rule is that “[i]nternational
agreements, even those directly benefitting private persons,
generally do not create private rights or provide for a private
9
The dissent ignores the canons that apply to international agreements,
and otherwise goes off track by treating this case as if it involved a statute
instead of a treaty. For example, the dissent accuses us of misunderstand-
ing Gonzaga, dissenting op. at 13001, 13004-05, 13010, 13015 — but the
question there was whether a private right of action could be implied in
spending legislation; Gonzaga does not purport to answer the question
before us, which concerns how a treaty is to be interpreted. Treaties are
different from statutes, and come with their own rules of the road.
12992 CORNEJO v. COUNTY OF SAN DIEGO
cause of action in domestic courts, but there are exceptions
with respect to both rights and remedies.” Restatement § 907
cmt. a; see, e.g., Argentine Republic v. Amerada Hess Ship-
ping Co., 488 U.S. 428, 442 (1989) (Even where treaties pro-
vide compensation for breaches by States they “only set forth
substantive rules of conduct . . . . They do not create private
rights of action for foreign corporations to recover compensa-
tion from foreign states in United States courts.”).10
Against this backdrop, Cornejo’s most compelling argu-
ment is that Article 36 textually uses the word “rights” in ref-
erence to a detainee’s being informed that he can, if he wants,
have his consular post advised of his detention and have com-
munications forwarded to it. This use of the word in para-
graph 1(b) “arguably confers on an individual the right to
consular assistance following arrest.” Breard, 523 U.S. at
376. However, it says nothing about the nature of “his rights”
or how, if at all, they may be invoked. This language, there-
fore, must be considered in light of what the Convention, and
Article 36, are all about. Restatement § 325(1) (noting that
treaty terms are to be construed in their context and in the
light of the treaty’s object and purpose).
Entitled “Communication and contact with nationals of the
sending State,” Article 36 appears in Section I of Chapter II
of the Convention. Chapter II governs “Facilities, Privileges
10
Few cases have permitted private enforcement of a treaty in U.S.
courts. See, e.g., Kolovrat, 366 U.S. at 191 (heirs could invoke 1881
Treaty of Friendship, Navigation, and Commerce between the United
States and Yugoslavia to secure inheritance denied by Oregon law); Olym-
pic Airways v. Husain, 540 U.S. 644, 646 (2004) (“Article 17 of the War-
saw Convention . . . imposes liability on an air carrier for a passenger’s
death or bodily injury caused by an ‘accident’ that occurred in connection
with an international flight.”) Other treaties, by their terms, provide a
forum in domestic courts for adjudicating treaty violations. See United
States—Ecuador Bilateral Investment Treaty art. VI, cl. 2(a), August 27,
1993, S. Treaty Doc. 103-15 (1993) (foreign national may bring claims
arising from investment dispute “to the courts or administrative tribunals
of the [State] that is a party to the dispute”).
CORNEJO v. COUNTY OF SAN DIEGO 12993
and Immunities Relating to Consular Posts, Career Consular
Officers and Other Members of a Consular Post,” while Sec-
tion I concerns “Facilities, Privileges and Immunities Relating
to a Consular Post.” The lead sentence in paragraph 1 of Arti-
cle 36, which is the paragraph that obliges authorities of a
receiving State to notify a detained foreign national of “his
rights” under sub-paragraph (1)(b), declares that the rights set
forth in that section are “[w]ith a view to facilitating the exer-
cise of consular functions relating to nationals of the sending
State.” (emphasis added). As defined in Article 5, “consular
functions” consist in, among other things, “(a) protecting in
the receiving State the interests of the sending State and of its
nationals, both individuals and bodies corporate, within the
limits permitted by international law; . . . [and] (e) helping
and assisting nationals, both individuals and bodies corporate,
of the sending State.” Thus, the “rights” accorded under Arti-
cle 36 are meant to facilitate the exercise of consular func-
tions, an important one of which is to help nationals who run
afoul of local law.
[5] Accordingly, sub-paragraph 1(a) gives consular offi-
cials the right “to communicate with nationals of the sending
State and to have access to them.” The exchange of informa-
tion provided for in sub-paragraph 1(b) supports the consular
function and the rights conferred in sub-paragraph 1(a) upon
consular officers to communication and access. And sub-
paragraph 1(c) guarantees consular officials the right to visit
a national of the sending State who is detained or incarcer-
ated, as well as to converse and correspond with him and to
arrange for his legal representation — if the national wants
that kind of help and if the consulate wants to give it.
[6] These “rights” are consistent with the articulated pur-
pose of facilitating the exercise of consular functions, not with
awarding compensation to individual detainees who receive
no notification from their arresting officers. Requiring a
receiving State to notify a foreign national that, if he wishes,
it will inform the local consular post of an arrest or detention,
12994 CORNEJO v. COUNTY OF SAN DIEGO
and forward communications, enhances the ability of sending
States to assist or protect their nationals. In this way, notifica-
tion is “a means of implementing the treaty obligations as
between States. Any other way of phrasing the promise would
be both artificial and awkward.” Li, 206 F.3d at 66 (Selya &
Boudin, JJ., concurring). This, in turn, allows the sending
State to decide what, if any, assistance it will provide. But at
the end of the day, the right of assistance, as Article 36(1)(c)
makes clear, belongs entirely to the sending State.
[7] We conclude, therefore, that the unmistakable focus of
Article 36 is on consular functions. The privileges discussed
are explicitly those relating to the consular post. They are
manifestly important, because Article 36 provides for commu-
nication and contact by sending States with their nationals
who are in trouble in a foreign country. However, the signa-
tory States did not choose to delegate enforcement of Article
36 — even to their own consular officials.11 They plainly did
not do so to individual foreign nationals. For all these reasons,
we cannot see unambiguous clarity in the language of Article
36 implying that the States parties to the Convention con-
ferred a private, judicially enforceable right upon individuals.
Gonzaga, 536 U.S. at 283-84.
11
There are two routes for remedying violations of Article 36: diplo-
matic channels through which governments may protest failure to observe
the terms of Article 36, and dispute resolution through The Optional Pro-
tocol Concerning the Compulsory Settlement of Disputes, April 24, 1963,
21 U.S.T. 325, 596 U.N.T.S. 487. Diplomacy is obviously a mechanism
belonging to States. The Protocol likewise applies only to parties, and
only States are parties. It provides that disputes arising out of the interpre-
tation or application of the Convention shall be within the compulsory
jurisdiction of the International Court of Justice (ICJ) and may be brought
before the ICJ “by an application made by any party to the dispute being
a Party to the present Protocol,” art. I, or to an arbitral tribunal by agree-
ment of “[t]he parties,” art. II. Only States are parties to the Convention,
and only States may bring proceedings before the ICJ. The United States
joined the Protocol, but has since noticed its withdrawal. Letter from Con-
doleeza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of
the United Nations (March 7, 2005).
CORNEJO v. COUNTY OF SAN DIEGO 12995
This conclusion is buttressed by the Convention as a whole,
the contemporaneous understanding of Congress in ratifying
it as well as the view of the Department of State, and the uni-
form practice of States implementing it over the years.12
The Vienna Convention on Consular Relations is an agree-
ment among States whose subject matter — “Consular Rela-
tions” — is quintessentially State-to-State. Except for its final
provisions, the Convention’s articles all have to do with con-
sular posts. Indeed, the Preamble notes the belief of the States
parties that “an international convention on consular relations,
privileges and immunities would . . . contribute to the devel-
opment of friendly relations among nations, irrespective of
their differing constitutional and social systems”; and their
realization that “the purpose of such privileges and immuni-
ties is not to benefit individuals but to ensure the efficient per-
formance of functions by consular posts on behalf of their
respective States.”13 Cf. Gonzaga, 536 U.S. at 284 (to imply
enforceable private rights, a statute’s “text must be ‘phrased
in terms of the person benefitted.’ ”) (quoting Cannon v.
Univ. of Chicago, 441 U.S. 677, 692 n.13 (1979)). As the
International Court of Justice explained, the Convention
establishes an “interrelated régime” of international legal obli-
12
The dissent faults us for buttressing our conclusion with “extratextual
sources,” dissenting op. at 13004-015, but the terms of a treaty are by
canon and international convention construed in light of the treaty’s object
and purpose, including its preamble. Treaty Convention art. 31(2);
Restatement § 325(1). Because it is a treaty that is being interpreted, the
meaning given to its terms by the Department of State is entitled to great
weight. Sanchez-Llamas, 126 S. Ct. at 2685. And subsequent practice also
matters. Restatement § 325(2).
13
We rely on the Preamble not to create an ambiguity, as the dissent
implies, dissenting op. at 13006 (quoting Jogi that to do so is a mistake),
but to provide context for the terms of Article 36(1)(b). This is perfectly
proper, for a treaty must be interpreted as a whole in light of its object and
purpose, including the preamble. Treaty Convention art. 31(2); Restate-
ment § 325(1). As the Preamble to the Vienna Convention specifically
says, this particular treaty was meant to facilitate consular functions. Arti-
cle 36(1)(b) does this, by allowing consular officials to aid their nationals.
12996 CORNEJO v. COUNTY OF SAN DIEGO
gations in order to protect, and facilitate the work of, consular
officers. LaGrand Case (Germany v. U.S.), 2001 I.C.J. 466,
492 ¶ 74 (June 27).
Cornejo suggests that the proviso in paragraph 2 manifests
an intent to create privately enforceable rights. Nowhere does
it say so. If anything, the fact that it talks in terms of how
“rights referred to in paragraph 1 of this article shall be exer-
cised” indicates the opposite, for it does not also say “and be
compensated.”14 Moreover, just as paragraph 2 recognizes that
the “rights” are to be exercised in conformity with the laws
and regulations of the receiving State, it provides that those
laws and regulations “must enable full effect to be given to
the purposes for which the rights accorded under this article
are intended.” The only articulated purpose is in paragraph 1,
and it is to facilitate the exercise of consular functions relating
to nationals of the sending State.
To the extent that Congressional intent in ratifying the Con-
vention may be discerned, it, too, supports our interpretation.
For example, the Report of the Committee on Foreign Rela-
tions recommending that the Senate give its advice and con-
sent to ratification of the Convention emphasizes the
preamble: “The general functional approach of the Conven-
tion is pointed up by the following preambular statement:
‘* * * the purpose of such privileges and immunities is not to
14
As Judge Thomas put it, dissenting from our refusal to apply the
exclusionary rule in Lombera-Camorlinga,
The Treaty does not provide expressly for private damage
actions. Rather, the plain words of the Treaty provide that the
notification right “shall be exercised,” not that failure to notify
should be compensated. Thus, the Treaty would not seem to con-
template private damage actions, and it would not be sound judi-
cial policy to conjure legal theory that would expose individual
officers to liability for breaches of international treaties. The
decision on whether to attach individual liability for such viola-
tions should be left to Congress.
206 F.3d at 895.
CORNEJO v. COUNTY OF SAN DIEGO 12997
benefit individuals but to ensure the efficient performance of
functions by consular posts on behalf of their respective
States.’ ” S. Exec. Rep. 91-9, at 2 (1969). The Report also
emphasizes the focus of Articles 28 to 57 on consular func-
tions: “Consular facilities, privileges and immunities of con-
sular officers and other members of a consular post are stated
in Articles 28 to 57. Among other things, these articles con-
cern inviolability of consular premises, archives, and docu-
ments, freedom of movement and of communication, personal
inviolability of consular officers, privileges and immunities,
including exemptions from social security regulations, taxa-
tion, customs duties and inspection.” Id. Further, the Report
identified several factors that “weighed in the Committee’s
decision.” The first was: “The Convention does not change or
affect present U.S. laws or practices.”15 Id. Had Article 36
been thought to create enforceable individual rights, it is
unlikely the Committee would have said this; creating a right
in a foreign national to sue for violations of an international
treaty in American courts would have been unprecedented in
1969. Another factor weighing in favor of its recommendation
was that “[a]s a sending state, it is important that the United
States obtain for its consular service the prerogatives neces-
sary for it to function effectively abroad.” Id. at 3. Again, the
focus was on obtaining rights to enable its consular service to
function effectively; there is no comment, or focus, at all on
obtaining for its nationals a right of any sort that would be pri-
vately enforceable in the courts of receiving States.
15
Li additionally notes that a 1970 letter sent by a State Department
legal adviser to the governors of the fifty states after the Convention was
ratified advised that the Department did “not believe that the Vienna Con-
vention will require significant departures from the existing practice
within the several states of the United States.” 206 F.3d at 64. As the court
remarked: “Needless to say, the creation of rights on par with those guar-
anteed by the Fourth, Fifth, and Sixth Amendments to the United States
Constitution would constitute just the sort of ‘significant departure[ ]’ dis-
claimed by this letter.” Id.
12998 CORNEJO v. COUNTY OF SAN DIEGO
The contemporaneous position of the United States Depart-
ment of State, which is entitled to “great weight,” United
States v. Stuart, 489 U.S. 353, 369 (1989), also reinforces the
view that the Convention as a whole, and Article 36 in partic-
ular, were not intended to create individually enforceable
rights. For example, when the Senate was considering ratifica-
tion, one of the deputy legal advisers to the State Department
informed the Foreign Relations Committee that, “[i]f prob-
lems should arise regarding the interpretation or application of
the convention, such problems would probably be resolved
through diplomatic channels.” S. Exec. Rep. 91-9, app., at 19.
Failing that, he represented, disputes would be submitted to
the ICJ pursuant to the Optional Protocol. Id. Since then, the
Department has repeatedly asserted that “the only remedies
for failures of consular notification under the Vienna Conven-
tion are diplomatic, political, or exist between states under
international law,” Emuegbunam, 268 F.3d at 392, and that
“[t]he right of an individual to communicate with his consular
official is derivative of the sending state’s right to extend con-
sular protection to its nationals,” Li, 206 F.3d at 63.
Cornejo points out that in his Letter of Transmittal to the
President, Secretary of State William P. Rodgers stated 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.” Li, 206 F.3d at
74 (Torruella, C.J., concurring in part, dissenting in part,
quoting the Secretary’s letter transmitting the certified copy of
the Convention). This statement, however, simply mirrors the
provision itself, which unquestionably refers to “rights,” with-
out shedding light on whether its intent was (or was not) to
create privately enforceable rights. By the same token, the
Report of the United States Delegation to the Conference that
resulted in the Convention states of Article 36 that it “is use-
ful to the consular service of the United States in the protec-
tion of our citizens abroad.” Id. (quoting Report of the United
States Delegation to the United Nations Conference on Con-
CORNEJO v. COUNTY OF SAN DIEGO 12999
sular Relations, Vienna, Austria, March 4 to April 22, 1963).
This comports with our construction, and the apparent under-
standing of the ratifying Congress.
Given that Article 36 does not unambiguously confer a
right in individual detainees to support a cause of action under
§ 1983, we see no need for resort to the travaux prépara-
toires. Treaty Convention, art. 32(a), (b) (declaring that
recourse to the travaux préparatoires is appropriate only
where interpretation under Article 31 of the Treaty Conven-
tion leaves the meaning ambiguous or leads to a “result which
is manifestly absurd or unreasonable”); see 1-2 Official
Records, United Nations Conference on Consular Relations,
Vienna, March 4 — April 22, 1963. Suffice it to say, the
travaux préparatoires is consistent with the State Depart-
ment’s position; there is no indication that States intended the
enforcement of a “right” to consular notification in the courts
of the receiving State. To the extent the travaux préparatoires
is susceptible to different interpretations, it is too ambiguous
under domestic law — which controls the exercise of rights
pursuant to paragraph 2 of Article 36 — to create a privately
enforceable right not explicitly found in the text.
Finally, the government represents that none of the 170
States parties has permitted a private tort suit for damages for
violation of Article 36. See also Li, 206 F.3d at 65 (relating
similar advice from the State Department with respect to rem-
edying failures of notification through a domestic criminal
justice process). This is consistent with the State Depart-
ment’s position that the remedies “are diplomatic, political, or
exist between states under international law.” Id. at 63 (quot-
ing the Department of State Answers to the Questions posed
by the First Circuit in United States v. Nai Fook Li at A-3).16
16
In LaGrand, for example, Germany brought a claim in the ICJ for
breach of Article 36 by the United States and, invoking its right of diplo-
matic protection, also contended that the breach violated the individual
rights of the LaGrand brothers who had not been informed of their rights
13000 CORNEJO v. COUNTY OF SAN DIEGO
[8] Accordingly, we hold that Article 36 does not unam-
biguously give Cornejo a privately enforceable right to be
notified. For sure, he should have been notified. The govern-
ment agrees; the State Department and the Department of
Homeland Security have regulations in place that track the
requirements of Article 36. So does the State of California. It
is important to the United States that its treaty obligations be
fulfilled, otherwise reciprocity is jeopardized. However, the
“rights” in Article 36 were intended to facilitate the exercise
of consular functions. That is how the treaty was understood
by the United States Department of State and Congress. And
it is how the treaty has been understood in practice by all its
signatories. While Article 36 may also benefit an individual
detainee when properly followed, benefit is not enough to
pass the Gonzaga test. We therefore agree with the district
court that Cornejo cannot state a claim under § 1983.
AFFIRMED.
D.W. NELSON, Senior Circuit Judge, dissenting:
The question that we should address, in accordance with
Supreme Court precedent in Gonzaga University v. Doe, 536
U.S. 273 (2002), is whether Article 36(1)(b) of 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, was intended to confer individual rights that would be
presumptively enforceable under 42 U.S.C. § 1983. Instead of
addressing this question, the majority relies on an erroneous
under Article 36, paragraph 1. The ICJ concluded that the individual rights
could be invoked in that court by the national State of the detained person.
2001 I.C.J. at 494, ¶ 77. By invoking diplomatic protection, and espousing
the claim of its national in the ICJ, Germany was in reality “asserting its
own rights.” The Mavrommatis Palestine Concessions, 1924 P.C.I.J. (ser.
A) No. 2, at 11-12 (August 30) (emphasis added).
CORNEJO v. COUNTY OF SAN DIEGO 13001
interpretation of Gonzaga and reframes the question as being
“whether Congress, by ratifying the Convention, intended to
create private rights and remedies enforceable in American
courts through § 1983.” Maj. Op. at 12988. The requirement
that the appellant in this case, Cornejo, demonstrate that the
ratifying Congress had an intent to create remedies enforce-
able in American courts through § 1983 finds no support in
case law. Instead, such a remedy under § 1983 is presump-
tively available once Cornejo demonstrates that the ratifying
Congress of the Vienna Convention had an intent to confer
individual rights in Article 36(1)(b). Therefore, I respectfully
dissent because it is clear that Article 36(1)(b) does confer
individual rights and the presumption of a remedy under
§ 1983 has not been overcome.
I. Gonzaga University v. Doe
I agree with the majority that Gonzaga establishes the stan-
dard under which we are to determine whether Cornejo can
rely on § 1983 to enforce the Vienna Convention. However,
the majority seems to rely on a fundamental misunderstanding
of the reasoning in Gonzaga.1 In Gonzaga, the Supreme Court
1
The majority seems to imply that the analysis in Gonzaga does not
apply because this case involves a treaty and not a statute. Maj. op. at
12991 n 9. In particular, the majority explains that treaties are different
from statutes and contends that treaties “come with their own rules of the
road.” Yet the majority cites no authority to support employing a different
standard for determining whether a treaty is enforceable under § 1983 than
the standard which the Supreme Court applied to statutes in Gonzaga. See
id. Adopting a distinct standard would be contrary to the approach taken
by the Seventh Circuit in Jogi, which is the only court that “has answered
. . . squarely [the question of whether Article 36 of the Vienna Convention
was enforceable under § 1983].” See maj. op. at 12989. The Seventh Cir-
cuit clearly applied the Gonzaga standard and held that individual rights,
once identified in the treaty, were presumptively enforceable under
§ 1983. See Jogi, 480 F.3d at 827-836. Thus, by not applying the Gonzaga
standard, the majority creates its own novel standard for determining
whether a treaty is enforceable under § 1983. This novel approach is one
with which I cannot concur.
13002 CORNEJO v. COUNTY OF SAN DIEGO
determined that “[§] 1983 provides a remedy only for the
deprivation of rights, privileges, or immunities secured by the
Constitution and laws of the United States.” Id. at 283. As a
result, “it is rights, not the broader or vaguer ‘benefits’ or
‘interests,’ that may be enforced under the authority of
[§ 1983].” Id. The Court recognized the important distinction
between the question of “whether a statutory violation may be
enforced through § 1983 [and] whether a private right of
action can be implied from a particular statute” that the major-
ity seems to confuse. Id. at 284. Parties suing under an
implied right of action theory “must show that the statute
manifests an intent to create not just a private right but also
a private remedy.” Id. (citing Alexander v. Sandoval, 532 U.S.
275, 286 (2001)) (emphasis in original). However, parties
such as Cornejo, who are only seeking to enforce a statutory
violation through § 1983, “do not have the burden of showing
an intent to create a private remedy because § 1983 generally
supplies a remedy for the vindication of rights secured by fed-
eral statutes.” Id. at 284. Instead, “[o]nce a plaintiff demon-
strates that a statute confers an individual right, the right is
presumptively enforceable by § 1983.” Id. Thus, the question
of whether there was an intent under Article 36(1)(b) to create
a private remedy, for which the majority places much weight,
is irrelevant to the issue of whether Cornejo can enforce the
treaty violation through § 1983. Instead, the only question rel-
evant to Cornejo’s claim is whether Article 36(1)(b) confers
individual rights “on a particular class of persons.” Id. at 285.
II. Text of Article 36(1)(b) of the Vienna Convention
To determine whether Article 36(1)(b) confers individual
rights on a particular class of persons, we must first look to
the language of the treaty. See id. at 287 (examining the lan-
guage of the statute). In order for the treaty to confer individ-
ual rights, “its text must be phrased in terms of the persons
benefitted.” Id. at 284 (citation and internal quotation mark
omitted). Article 36(1)(b) states:
CORNEJO v. COUNTY OF SAN DIEGO 13003
If [the national of the sending State] so requests, the
competent authorities of the receiving State shall,
without delay, inform the consular post of the send-
ing 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 con-
sular post by the person arrested, in prison, custody
or detention shall be forwarded by the said authori-
ties without delay. The said authorities shall inform
the person concerned without delay of his rights
under this subparagraph.
Vienna Convention, Art. 36(1)(b). Article 36(1)(b) speaks
rather clearly in rights-conferring language as it “instructs
authorities of a receiving State to notify an arrested foreign
national of ‘his rights’ under the Convention ‘without
delay.’ ” Jogi v. Voges, 480 F.3d 822, 829 (7th Cir. 2007).
The language in Article 36(1)(b) is distinct from the statutory
language in Gonzaga that the Supreme Court held did not
confer individual rights. In that case, the appellant was seek-
ing enforcement through § 1983 of a provision “directing that
no funds shall be made available to any educational agency or
institution which has a prohibited policy or practice.” Gon-
zaga, 563 U.S. at 287. Unlike Article 36(1)(b), the statute at
issue in Gonzaga did not speak anywhere of the rights of any-
one. In contrast, Article 36(1)(b) and particularly the last sen-
tence with the reference to “his rights” “satisfies the strict test
of clarity” established by the Supreme Court in Gonzaga. Id.
at 833.
The majority seems to agree as well stating that “[the] use
of the word [“rights”] in paragraph 1(b) ‘arguably confers to
an individual the right to consular assistance following
arrest.’ ” Maj. Op. at 12992 (quoting Breard v. Greene, 523
U.S. 371, 376 (1998)). Nonetheless, the majority rejects
Cornejo’s claim for relief under § 1983 because the treaty
“says nothing about the nature of ‘his rights’ or how, if at all,
13004 CORNEJO v. COUNTY OF SAN DIEGO
they may be invoked.” Id. Gonzaga does not require that the
treaty say anything about the nature of his rights or how, if at
all, they may be invoked. Instead, Gonzaga requires only that
the rights be “conferr[ed] on a particular class of persons.”
Gonzaga, 536 U.S. at 285. In this case, the right is conferred
on foreign nationals who are detained or arrested by compe-
tent authorities of the receiving State. These foreign nationals
have a right to be informed that the competent authorities are
required upon request of the foreign national to notify the
sending State of the arrest or detention.
In spite of the clear language in Article 36(1)(b) referenc-
ing “his rights” and the conferral of the right on a particular
class of persons, the majority contends that this right belongs
entirely to the sending State. See Maj. Op. at 12994. To sup-
port this contention, the majority looks to titles contained in
the Vienna Convention and other subparagraphs within Arti-
cle 36. However, such an interpretation is contrary to the clear
language of Article 36(1)(b), which refers to “his rights” not
to those of the sending State. If the drafters of the treaty
intended that the rights in Article 36(1)(b) belong entirely to
the State, it easily could have written language consistent with
such a construction or simply omitted the last sentence of
Article 36(1)(b). Instead, as will be discussed in greater detail
below, the drafters of the treaty included this language to
make clear that individuals have a right to be informed that
competent authorities are required to notify their consulates if
they so request.
III. Extratextual Sources of Interpretation of Article
36(1)(b)
The majority seeks to buttress its conclusion that Article
36(1)(b) does not confer individual rights through an analysis
of the Vienna “Convention as a whole, the contemporaneous
understanding of Congress in ratifying it as well as the view
of the Department of State, and the uniform practice of States
implementing it over the years.” Maj. Op. at 12995. Accord-
CORNEJO v. COUNTY OF SAN DIEGO 13005
ing to Gonzaga, we do not need to address these sources
because Article 36(1)(b) confers rights in “clear and unambig-
uous terms.” Gonzaga, 536 U.S. at 290. In such cases, “no
more . . . is required for Congress to create new rights.” Id.
Nonetheless, evaluating these sources demonstrates that they
support the interpretation of Article 36(1)(b) as conferring an
individual right.
First, the majority states that “[e]xcept for its final provi-
sions, the Convention’s articles all have to do with consular
posts.” Id. Assuming arguendo that this is the case, it does not
foreclose the possibility that the drafters intended to protect
the individual rights of foreign nationals in Article 36(1)(b) as
made clear by the language of the provision. Instead, as will
be discussed in greater detail below, the drafters understood
Article 36(1)(b) to be a unique provision within the Vienna
Convention that required extensive negotiations to secure pas-
sage.
Second, the majority relies on the Preamble to the Vienna
Convention, which states:
Believing that an international convention on con-
sular relations, privileges and immunities would also
contribute to the development of friendly relations
among nations, irrespective of their differing consti-
tutional and social systems,
Realizing that the purpose of such privilege 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 regu-
lated by the provisions of the present Convention,
Have agreed as follows: . . .
13006 CORNEJO v. COUNTY OF SAN DIEGO
Vienna Convention, pmbl. The majority contends that the lan-
guage in the preamble stating that “the purpose of such privi-
leges and immunities is not to benefit individuals” supports its
contention that no part of the Vienna Convention, including
Article 36(1)(b), was intended to confer individual rights. See
Maj. Op. at 12995.
The Seventh Circuit has explained, “[i]t is a mistake to
allow general language of a preamble to create an ambiguity
in specific statutory or treaty text where none exists. Courts
should look to materials like preambles and titles only if the
text of the instrument is ambiguous.” Jogi, 480 F.3d 822. This
explanation is consistent with a long-standing rule of statutory
construction that a statute “clear and unambiguous in its
enacting parts, may [not] be so controlled by its preamble as
to justify a construction plainly inconsistent with the words
used in the body of the statute.” Price v. Forrest, 173 U.S.
410, 427 (1899). In other words, a preamble cannot be relied
upon to create ambiguity in a statute. In this case, the text of
Article 36(1)(b) is clear in conferring rights on individuals.
Therefore, looking to the preamble is inappropriate.
More importantly, we have specifically rejected reliance on
the preamble as support for the argument that Article 36
creates no individual rights. United States v. Lombera-
Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000). Instead, we
explained that “the protection of some interests of aliens as a
class is a corollary to consular efficiency.” Id. (citing United
States v. Calderon-Medina, 591 F.2d 529, 531 n.6 (9th Cir.
1979)). Therefore, we concluded, “[t]he preamble is not par-
ticularly helpful to our analysis” of whether Article 36(1)(b)
confers an individual right. Id. The majority does not explain
why, contrary to our precedent on the issue, the preamble is
now a useful guide to determining whether Article 36(1)(b)
confers an individual right.
The majority also does not address an interpretation of the
preamble that would be consistent with a rights-conferring
CORNEJO v. COUNTY OF SAN DIEGO 13007
Article 36(1)(b). The Seventh Circuit in Jogi explained, “the
most reasonable understanding of this language is as a way of
emphasizing that the Convention is not designed to benefit
diplomats in their individual capacity, but rather to protect
them in their official capacity.” Jogi, 480 F.3d at 833; see also
United States v. Rodrigues, 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 offi-
cials.”). Thus, the language in the preamble explaining that
“such privileges and immunities are not to benefit individu-
als” more reasonably refers to the fact that the privileges and
immunities contained in the Vienna Convention are not
intended to benefit consul in their individual capacity. Pro-
tecting the rights of detained foreign nationals is perfectly
consistent with this interpretation of the Preamble.
Third, the majority relies on congressional intent in ratify-
ing the Convention. The majority first looks to statements in
the Report of the Committee on Foreign Relations describing
the function of the Vienna Convention in terms of the pream-
ble. As discussed above, the language in the preamble does
not support the majority’s conclusion that Article 36(1)(b)
does not confer individual rights. As a result, what amounts
to a mere reiteration of the language of the preamble by the
Committee on Foreign Relations in their discussion of the
treaty is similarly unhelpful.
The majority then quotes the Report of the Committee on
Foreign Relations, which states:
Consular facilities, privileges and immunities of con-
sular officers and other members of a consular post
are stated in Article 28 to 57. Among other things,
these articles concern inviolability of consular prem-
ises, archives, and documents, freedom of movement
13008 CORNEJO v. COUNTY OF SAN DIEGO
and of communication, personal inviolability of con-
sular officers, privileges and immunities, including
exemptions from social securities regulation, taxa-
tion, customs duties and inspections.
Maj. Op. at 12997. This is a particularly weak reed on which
to place any weight. It is true that Articles 28 to 57 discuss
consular facilities, privileges and immunities of consular offi-
cers and other members of a consular post, but the Committee
did not determine that these issues were to the exclusion of all
others. In fact, several articles fall outside of this broad
description. For example, Article 29 addresses the use of a
national flag and coat-of-arms, Article 37 addresses the
responsibility of the receiving State to notify the sending State
about information in the case of a death of a national of the
sending State, and Article 39 addresses consular fees and
charges. Thus, the fact that Article 36(1)(b) establishes rights
for foreign nationals, which is contrary to the Committee’s
broad, paragraph description of thirty articles in the Vienna
Convention, should not carry any weight.
The majority lastly points to statements in the Report iden-
tifying factors that “weighed in the Committee’s decision,”
which included the fact that “[t]he Convention does not
change or affect present U.S. laws or practices.” Maj. Op. at
12997. The majority contends that the Committee would not
have made such a statement regarding the effect of the Vienna
Convention on U.S. law and practices if the treaty created a
right in a foreign national to sue, which “would have been
unprecedented in 1969.” Maj. Op. at 12997. The majority’s
analysis demonstrates confusion with regards to the Gonzaga
standard discussed above. The question under Gonzaga is not
whether the particular statute or treaty creates a right to sue,
but instead whether the statute or treaty confers an individual
right that is presumptively enforceable under § 1983. See
Gonzaga, 536 U.S. at 284-85. Thus, it is § 1983, not the
Vienna Convention, that would establish the right to sue. On
the basis of this proper understanding of the Gonzaga stan-
CORNEJO v. COUNTY OF SAN DIEGO 13009
dard, it is not so unprecedented for the Vienna Convention to
have conferred individual rights in 1969.
I agree that the fact that the conferring of individual rights
on a particular class of persons in the Convention establishes
a presumptive right of enforcement under § 1983 was likely
not foreseen by the congressional ratifiers. This presumptive
enforcement right is a product of recent case law establishing
§ 1983 as the enforcement mechanism for federal statutes and
treaties. See Maine v. Thiboutot, 448 U.S. 1, 13-14 (1980)
(explaining that the language “and laws” in § 1983 “must be
read to include all federal statutes” and rejecting the conten-
tion that § 1983 only remedies violations of the Constitution
or laws providing for equal rights of citizens); Jogi, 480 F.3d
at 827 (concluding that the acceptance of the argument that
treaties could not be remedied under § 1983 would “relegate
treaties to second-class citizenship, in direct conflict with the
Constitution’s command”). However, this lack of foreseea-
bility by the congressional ratifiers does not change the fact
that the language of the statute that they ratified conferred
rights to individual foreign nationals. Thus, consistent with
the statement of the ratifiers, the Convention did not change
or affect present U.S. laws or practices by granting foreign
nationals a right to sue. Instead, it was case law interpreting
the breadth of enforcement rights under § 1983 that estab-
lished such a presumptive right.
Fourth, the majority contends that the contemporaneous
position of the United States Department of State “reinfor-
ce[d] the view that the Convention as a whole, and Article 36
in particular, were not intended to create individually enforce-
able rights.” Maj. Op. at 12998. The majority again confuses
the Gonzaga standard. What is relevant under Gonzaga is
whether the Convention creates individual rights, not whether
it creates individually enforceable rights. See Gonzaga, 536
U.S. at 284-85. As will be discussed below, the enforceability
of the right under § 1983 is determined in accordance with a
standard unrelated to the specific language in the treaty.
13010 CORNEJO v. COUNTY OF SAN DIEGO
Relying on this misunderstanding of the Gonzaga standard,
the majority continues by quoting a statement from one of the
deputy legal advisers to the State Department to the Foreign
Relations Committee when the Committee was considering
ratification. The adviser stated that “[i]f problems should arise
regarding the interpretation or application of the convention,
such problems would probably be resolved through diplo-
matic channels.” Maj. Op. at 12998 (citing S. Exec. Rep. 91-
9, app., at 19). The majority then paraphrases the adviser as
stating, “[f]ailing that, he represented, disputes would be sub-
mitted to the ICJ pursuant to the Optional Protocol.” Id. The
majority ignores the context of these statements, which dem-
onstrate that the adviser did not have in mind the issue of
whether Article 36(1)(b) confers individual rights. The ques-
tion posed to the adviser for which the above statements were
responsive was as follows:
Since the optional protocol establishes a procedure
for referring disputes to the World Court in which
the Connally amendment would not apply, do you
foresee any cases arising in which you might regret
not having the protection of the Connally Amend-
ment?
The Connally amendment “provided that U.S. acceptance of
the [ICJ’s] jurisdiction did not apply to domestic matters, and
that the United States reserved for itself the exclusive right to
determine whether a particular matter was domestic.” Paul S.
Reichler, Holding America to Its Own Best Standards: Abe
Chayes and Nicaragua in the World Court, 42 Harv. Int’l L.J.
15, 29 (2001). A more reasonable interpretation of the
response to the question than that offered by the majority is
that the adviser was trying to assure the Senate that the ICJ
would not have the authority to resolve disputes that the
United States considered domestic. Instead, such disputes
would be resolved through diplomatic channels or, in the case
of international disputes, the International Court of Justice
(ICJ). Nothing can be inferred from the statement about
CORNEJO v. COUNTY OF SAN DIEGO 13011
whether the State Department understood the Convention, and
Article 36(1)(b) in particular, to confer individual rights.
However, if we look at the mechanisms for resolving dis-
putes cited by the State Department advisors, a decision of the
ICJ provides support for an interpretation of Article 36(1)(b)
as conferring individual rights. Although, the decisions of the
ICJ have “no binding force except between the parties and in
respect of that particular case,” see ICJ Statute, art. 34(1),
they can provide persuasive support for a legal conclusion. In
LaGrand, the ICJ held that Article 36(1)(b) “creates individ-
ual rights for the detained person in addition to the rights
accorded the sending State, and that consequently the refer-
ence to ‘rights’ in paragraph [b] must be read as applying not
only to the rights of the sending State, but also to the rights
of the detained individual.” See LaGrand Case (Germany v.
U.S.), 2001 I.C.J. 466, at ¶ 89 (June 27); see also id. at ¶ 77.
Thus, on the basis of the ICJ process of resolution of conflict-
ing interpretations of the Vienna Convention, Article 36(1)(b)
does confer individual rights.
The ICJ’s determination is consistent with the contempora-
neous understanding of Secretary of State William P. Rod-
gers. In the Letter of Submittal of the Vienna Convention to
President Nixon, Secretary of State Rodgers indicated that:
[Article 36(1)(b)] 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 his right to communi-
cate with that consular post. If he so requests, the
consular post shall be notified without delay.
Li, 206 F.3d at 74 (Torruella, C.J., concurring in part, dissent-
ing in part, quoting the Secretary’s letter transmitting the cer-
tified copy of the Convention) (emphasis added). The
majority dismisses this statement as “simply mirror[ing] the
provision itself, which unquestionably refers to “rights,” with-
13012 CORNEJO v. COUNTY OF SAN DIEGO
out shedding light on whether its intent was (or was not) to
create privately enforceable rights.” Maj. Op. at 12998. At the
risk of sounding overly repetitive, all that Gonzaga requires
to create a presumption of a remedy under § 1983 is that the
statute confer an individual right, not a privately enforceable
right. Thus, the fact that Secretary of State Rodgers under-
stood Article 36(1)(b) to confer such rights is dispositive.
Further support for this conclusion is found in the U.S.
Vienna Report, which was attached to the Letter of Submittal.
The Report stated:
The solution adopted by the Conference to the prob-
lem of adjusting the notification obligations of the
receiving State to the right of the individual con-
cerned to request notification lies in the final sen-
tence of subparagraph 1(b). That sentence requires
authorities of the receiving State to inform the per-
son 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.
The majority does not address these contemporaneous state-
ments. Given that contemporaneous statements of the United
States Department of State are entitled to “great weight” in
the interpretation of treaties, the appropriate conclusion is that
Article 36(1)(b) confers an individual right. See Maj. Op. at
12998 (citing United States v. Stuart, 489 U.S. 353, 369
(1989))
Finally, the majority relies on the legislative history of the
Vienna Convention (the travaux préparatoires). After
explaining that there is no need to resort to the travaux pré-
paratoires because Article 36(1)(b) unambiguously does not
confer “a right in individual detainees to support a cause of
action under § 1983,” the majority goes on to conclude that
the travaux préparatoires is consistent with the State Depart-
CORNEJO v. COUNTY OF SAN DIEGO 13013
ment’s position. Maj. Op. at 12999. Specifically, the majority
explains “there is no indication that States intended the
enforcement of a ‘right’ to consular notification in the courts
of the receiving State.” Id. The reasoning again demonstrates
the majority’s confusion with the Gonzaga standard. Gonzaga
only requires an intent in the Vienna Convention to create a
right, not an intent to enforce a right.2 Given this roundabout
reliance on the travaux préparatoires, I believe it is important
to show that it also supports the conclusion that Article
36(1)(b) confers an individual right.3
The original text of Article 36(1)(b) stated:
The competent authorities shall, without undue
delay, inform the competent consulate of the sending
State, if within its district, a national of that State is
committed to prison or to custody pending trial or is
detained in any other manner. Any communications
addressed to the consulate by the person in prison,
custody or detention shall also be forwarded by the
said authorities without undue delay . . . .
Draft ILC Articles, U.N. Doc. A/CN.4/136. As originally for-
mulated, Article 36(1)(b) did not confer rights onto individu-
2
For the same reason, the government’s representation that “none of the
170 State parties has permitted a private tort suit for damages for violation
of Article 36” is off the mark. The presumptive remedy for a violation of
a treaty right is found in § 1983 of our domestic law not in the Vienna
Convention. It is important to note that a suit under § 1983 is not a tort
suit, instead it is a unique domestic remedy for violations under color of
State law. See 42 U.S.C. § 1983. It is therefore not surprising that we are
the only State that would permit private suits because we are likely the
only State that has a § 1983 enforcement remedy or anything analogous
to it.
3
For a discussion generally in agreement with my conclusion that Arti-
cle 36(1)(b) was intended by the drafter to confer individual rights on for-
eign nationals, see Mark J. Kadish, Article 36 of the Vienna Convention
on Consular Relations: A Search for the Right to Counsel, 18 Mich. J.
Int’l L. 565 (1997).
13014 CORNEJO v. COUNTY OF SAN DIEGO
als. Instead, it imposed a state obligation to notify the
consulate of the sending State when a national of the sending
State was deprived of his liberty. The delegates to the Vienna
Convention did not approve this version because of concerns
about the burden on receiving States, particularly those with
large tourist or immigrant populations to inform consular offi-
cials from the sending State in all cases.4 See 1 Official
Record, Twelfth Plenary Meeting at 42, ¶ 38 (April 20, 1963).
Therefore, to lessen the burden, delegates sought and received
approval of an amendment to Article 36(1)(b) that eliminated
the automatic notification requirement and instead established
an opt-in mechanism such that the detained foreign national
had the right to request that consul be informed of his arrest
or detention.5 To ensure that the foreign national knew of this
right, the delegate from the United Kingdom sought and
received approval of an additional amendment that estab-
lished the right of the detained foreign national to be informed
of his right to request consul be notified of his decision.6
4
For example, the delegates of New Zealand, the United Arab Republic,
and the Federation of Malay each individually expressed concern with the
burden of notification on the receiving States, particularly those States that
received large numbers of immigrants and foreign tourists. 1 United
Nations Conference on Consular Relations: Official Records of the Elev-
enth Plenary Meeting at 36, ¶ 9-10 (April 17, 1963).
5
In particular, after a motion for reconsideration of Article 36(1)(b)
passed, a proviso was proposed by a 17-state bloc to be added at the
beginning of the text of Article 36(1)(b) stating, “unless [the foreign
national] expressly opposes it, the competent authorities shall inform the
competent consulate of the sending State.” Id. at ¶ 54-55. The proviso had
the purpose of “relieving the receiving State of the automatic duty to
inform the consul of the arrest of the person concerned.” Id. at ¶ 56. It also
was included as recognition of the “need to take into consideration the
prisoner’s own freedom of choice.” Id. In order to lessen the burden on
State authorities, the delegate from the United Arab Republic proposed an
amendment to replace the proviso “unless he expressly opposes it” with
“if he so requests.” Id. at ¶ 62. The delegate thus sought to transfer respon-
sibility from the State to notify the consul to the individual to request noti-
fication.
6
Specifically, the delegate from the United Kingdom was concerned that
the proviso as originally stated (“unless he expressly opposes it”) or as
CORNEJO v. COUNTY OF SAN DIEGO 13015
On the basis of the evidence of the clear text of Article
36(1)(b), which specifies that it is the foreign national who
has the right to be informed of the requirement that the detain-
ing authorities must notify his consul if he so requests, it is
clear that Article 36(1)(b) confers an individual right. Insofar
as it is relevant, the language in the preamble of the Vienna
Convention, the congressional intent of the ratifying Senate,
the contemporaneous position of the United States Depart-
ment of State and the travaux préparatoires does not under-
mine this interpretation. In fact, the contemporaneous position
of the United States Department of State and the discussion
of Article 36(1)(b) in the travaux préparatoires supports my
conclusion that Article 36(1)(b) confers an individual right.
In sum, I believe that the confusion in the majority opinion
ultimately arises from the erroneous interpretation of Gon-
zaga. Contrary to the majority’s view that there must be an
intent to confer a privately enforceable individual right, Gon-
zaga only requires a demonstration that the statute confers an
individual right. See Gonzaga, 536 U.S. at 284 (“Plaintiffs
suing under § 1983 do not have the burden of showing an
intent to create a private remedy because § 1983 generally
supplies a remedy for the vindication of rights.”). As I will
discuss below, the issue of whether the right is enforceable
under § 1983 is addressed under a separate test.
proposed by the delegate of the United Arab Republic (“if he so requests”)
could give rise to abuses and misunderstandings. To address the potential
for abuse, the delegate felt that “it was essential to introduce a provision
to the effect that the authorities of the receiving State should inform the
person concerned without delay of his rights under sub-paragraph (b).” Id.
at ¶ 73. In other words, to ensure that the foreign national knew of his
right to request that his consul be informed of his detention under Article
36(1)(b), he needed to be informed of his right to make the request. Article
36(1)(b) with the proviso, “if he so request” and the inclusion of the
amendment suggested by the United Kingdom delegate (“The said author-
ities shall inform the person concerned without delay of his rights under
this subparagraph”), which is the last sentence of Article 36(1)(b) as cur-
rently written, received a two-thirds vote.
13016 CORNEJO v. COUNTY OF SAN DIEGO
IV. Enforceability of Article 36(1)(b) Rights Under
§ 1983
The Supreme Court held in Gonzaga, “[o]nce a plaintiff
demonstrates that a statute confers an individual right, the
right is presumptively enforceable by § 1983.” Id. at 284. This
presumption can be defeated if Congress did not intend a rem-
edy for the right. City of Rancho Palos Verdes v. Abrams, 544
U.S. 113, 120 (2005). Such congressional intent “may be
found directly in the statute creating the right, or inferred
from the statute’s creation of a ‘comprehensive enforcement
scheme that is compatible with individual enforcement under
§ 1983’ ” or by the provision of a more restrictive express
remedy in the statute itself. Id. at 120-21 (quoting Blessing v.
Freestone, 520 U.S. 329, 341 (1997)). “The express provision
of one method of enforcing a substantive rule suggests that
Congress intended to preclude others.” Id. (quoting Alexander
v. Sandoval, 532 U.S. 275, 290 (2001)).
The Vienna Convention is silent on private, judicially
enforceable remedies for violation of individual rights. As
such, the drafters did not express any intention to foreclose
domestic remedies that would overcome the presumptive rem-
edy under § 1983. The means of enforcement identified by the
ratifying Senate, which included diplomatic channels and the
Optional Protocol, are far from the “comprehensive enforce-
ment scheme” that would be incompatible with individual
enforcement under § 1983. Finally, the Vienna Convention
does not include a more restrictive enforcement remedy that
was intended to preclude enforcement under § 1983.
Thus, Article 36(1)(b) confers individual rights that are pre-
sumptively enforceable under § 1983. This presumption has
not been defeated and therefore Article 36(1)(b) should be
interpreted as conferring an individual right that is enforce-
able under § 1983. For these reasons, I respectfully dissent.