Cornejo v. County of San Diego , 504 F.3d 853 ( 2007 )

Opinion by Judge RYMER; Dissent by Judge D.W. NELSON.

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 deputy 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 promote consular functions. Consular functions include protecting 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 detainees 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 Sheriffs 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 country.” He claims that in this, the County and the deputies violated 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 damages, 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

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 violations 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 Carlsbad, 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

The Vienna Convention is a multilateral international agreement “that governs relations between individual nations and foreign consular officials.” Sanchez-Llamas v. Oregon, — U.S.-, 126 S.Ct. 2669, 2691, 165 L.Ed.2d 557 (2006) (Breyer, J., dissenting). Adopted in 1963, 170 States are States parties.⁵ The United States ratified 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 consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(e) 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 judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

21 U.S.T. 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, 7 L.Ed. 415 (1829); Medellín v. Dretke, 544 U.S. 660, 686, 125 S.Ct. 2088, 161 L.Ed.2d 982 (2005) (O’Connor, J., dissenting) (citing Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. 247, 28 L.Ed. 798 (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, 125 S.Ct. 2088; Restatement (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 legislation, 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).

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 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 violations 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) (rejecting 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 others have held that regardless of whether it does or not, remedies 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 “[njothing in [its] text explicitly provides for judicial enforcement of their consular access provisions at the behest of private litigants”); United States v. Minjares-Alvarez, 264 F.3d 980, 986-87 (10th Cir.2001); United States v. Cordoba-Mosqu-era, 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) (stating that the Convention confers “no individually enforceable right under Article 36 to be informed of a right to consular notification .... ”); see also Murphy v. Netherland, 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 contacting the Mexican consulate would have changed either his guilty plea or his sentence”). The Supreme Court has confronted 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 individuals enforceable rights but finding no authority in the Convention itself for suppressing evidence and declining to impose the exclusionary rule on Oregon as a remedy; applying 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, 118 S.Ct. 1352, 140 L.Ed.2d 529 (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

As Cornejo’s claim is pursuant to § 1983, which provides a vehicle for seeking relief for violation of the “Constitution 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, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section.” Thus, an “unambiguously conferred right” phrased in terms of the person benefited 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, 122 S.Ct. 2268.

“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, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). As it is a treaty that is being construed, however, and a treaty is an agreement between States that implicates the foreign relations of the United States, we are also aided by canons that apply specially 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. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961)). “An international agreement is to be interpreted in good faith in accordance with the ordinary 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 preamble. Vienna Convention on the Law of Treaties (“Treaty Convention”) art. 31(2), May 23, 1969, 1155 U.N.T.S. 331. “[Subsequent practice between the parties in the application of the agreement [is] to be taken into account in its interpretation.” Restatement § 325(2).⁹

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, 5 S.Ct. 247, 28 L.Ed. 798 (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 benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies.” Restatement § 907 cmt. a; see, e.g., Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 442, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (Even where treaties provide compensation for breaches by States they “only set forth substantive rales of conduct.... They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts.”).¹⁰

Against this backdrop, Cornejo’s most compelling argument is that Article 36 textually uses the word “rights” in reference to a detainee’s being informed that he can, if he wants, have his consular post advised of his detention and have communications forwarded to it. This use of the word in paragraph 1(b) “arguably confers on an individual the right to consular assistance following arrest.” Breard, 523 U.S. at 376, 118 S.Ct. 1352. However, it says nothing about the nature of “his rights” or how, if at all, they may be invoked. This language, therefore, 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 and Immunities Relating to Consular Posts, Career Consular Officers and Other Members of a Consular Post,” while Section I concerns “Facilities, Privileges and Immunities Relating to a Consular Post.” The lead sentence in paragraph 1 of Article 36, which is the paragraph that obliges authorities of a receiving State to notify a detained foreign national of “his rights” under sub-paragraph (l)(b), declares that the rights set forth in that section are “[wjith a view to facilitating the exercise 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 Article 36 are meant to facilitate the exercise of consular fune-tions, an important one of which is to help nationals who run afoul of local law.

Accordingly, sub-paragraph 1(a) gives consular officials the right “to communicate with nationals of the sending State and to have access to them.” The exchange of information 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 subparagraph 1(c) guarantees consular officials the right to visit a national of the sending State who is detained or incarcerated, 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.

These “rights” are consistent with the articulated purpose 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, and forward communications, enhances the ability of sending States to assist or protect their nationals. In this way, notification 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(l)(c) makes cléar, belongs entirely to the sending State.

We conclude, therefore, that the unmistakable focus of Article 36 is on consular functions. The privileges discussed are explicitly those relating to the consular post. They are manifestly important, because Article 36 provides for communication and contact by sending States with their nationals who are in trouble in a foreign country. However, the signatory States did not choose to delegate enforcement of Article 36 -even to their own consular officials.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 conferred a private, judicially enforceable right upon individuals. Gonzaga, 536 U.S. at 283-84,122 S.Ct. 2268.

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 uniform practice of States implementing it over the years.¹²

The Vienna Convention on Consular Relations is an agreement among States whose subject matter — “Consular Relations” — is quintessential^ State-to-State. Except for its final provisions, the Convention’s articles all have to do with consular 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 development of friendly relations among nations, irrespective of their differing constitutional and social systems”; and their realization that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.” ¹³ Cf. Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268 (to imply enforceable private rights, a statute’s “text must be ‘phrased in terms of the person benefited.’ ”) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 692 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). As the International Court of Justice explained, the Convention establishes an “interrelated regime” of international legal obligations 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 exercised” 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 Convention may be discerned, it, too, supports our interpretation. For example, the Report of the Committee on Foreign Relations recommending that the Senate give its advice and consent to ratification of the Convention emphasizes the preamble: “The general functional approach of the Convention is pointed up by the following preambular statement: ‘ * * * the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.’,” S. Exec. Rep. 91-9, at 2 (1969). The Report also emphasizes the focus of Articles 28 to 57 on consular functions; “Consular facilities, privileges and immunities of consular officers and other members of a consular post are stated in Articles 28 to 57. Among other things, these articles concern inviolability of consular premises, archives, and documents, freedom of movement and of communication, personal inviolability of consular officers, privileges and immunities, including exemptions from social security regulations, -taxation, 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 necessary 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 privately enforceable in the courts of receiving States.

The contemporaneous position of the United States Department of State, which is entitled to “great weight,” United States v. Stuart, 489 U.S. 353, 369, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989), also reinforces the view that the Convention as a whole, and Article 36 in particular, were not intended to create individually enforceable rights. For example, when the Senate was considering ratification, one of the deputy legal advisers to the State Department informed the Foreign Relations Committee that, “[ijf problems 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 Convention 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 consular 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,” without 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 useful to the consular service of the United States in the protection of our citizens abroad.” Id. (quoting Report of the United States Delegation to the United Nations Conference on Consular Relations, Vienna, Austria, March 4 to April 22, 1963). This comports with our construction, and the apparent understanding 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 préparatoires. Treaty Convention, art. 32(a), (b) (declaring that recourse to the travaux préparatoires is appropriate only where interpretation under Article 31 of the Treaty Convention 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 Department’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 prépara-toires 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 remedying failures of notification through a domestic criminal justice process). This is consistent with the State Department’s position that the remedies “are diplomatic, political, or exist between states under international law.” Id. at 63 (quoting the Department of State Answers to the Questions posed by the First Circuit in United States v. Nai Fook Li at A-3).¹⁶

Accordingly, we hold that Article 36 does not unambiguously give Cornejo a privately enforceable right to be notified. For sure, he should have been notified. The government 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.

1 . April 24, 1963, 21 U.S.T. 77, 100-101, 569 U.N.T.S. 261.

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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).

4 . Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct 2018, 56 L.Ed.2d 611 (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.

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 violation of Article 36, the exclusion of evidence is not one of them. Id. at 885.

7 . The Court granted certiorari in Medellín v. Dretke, 544 U.S. 660, 125 S.Ct. 2088, 161 L.Ed.2d 982 (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 Stales would discharge its international obligations.

8 . We note the government's submission that "laws” cannot include treaties, 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, 7 S.Ct. 656, 32 L.Ed. 766 (1887), Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980).

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 misunderstanding Gon-zaga, dissenting op. at 864, 866, 869, 872— 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.

10 . New cases have permitted private enforcement of a treaty in U.S. courts. See, e.g., Kolovrat, 366 U.S. at 191, 81 S.Ct. 922 (heirs could invoke 1881 Treaty of Friendship, Navigation, and Commerce between the United States and Yugoslavia to secure inheritance denied by Oregon law); Olympic Airways v. Husain, 540 U.S. 644, 646, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004) (“Article 17 of the Warsaw 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”).

11 . There are two routes for remedying violations of Article 36: diplomatic channels through which governments may protest failure to observe the terms of Article 36, and dispute resolution through The Optional Protocol 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 interpretation 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 agreement 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 Condoleeza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations (March 7, 2005).

12 . The dissent faults us for buttressing our conclusion with “extratextual sources,” dissenting op. at 866-72, 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 867 (quoting Jogi that to do so is a mistake), but to provide context for the terms of Article 36(l)(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); Restatement § 325(1). As the Preamble to the Vienna Convention specifically says, this particular treaty was meant to facilitate consular functions. Article 36(l)(b) does this, by allowing consular officials to aid their nationals.

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 contemplate private damage actions, and it would not be sound judicial 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 violations should be left to Congress.

206 F.3d at 895.

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 Convention 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 guaranteed by the Fourth, Fifth, and Sixth Amendments to the United States Constitution would constitute just the sort of 'significant departure! ]’ disclaimed by this letter.” Id.

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 diplomatic protection, also contended that the breach violated the individual rights of the LaGrand brothers who had not been informed of their rights 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).