Cornejo v. County of San Diego

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.