Cornejo v. County of San Diego

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 , 122 S.Ct. 2268 , 153 L.Ed.2d 309 (2002), is whether Article 36(l)(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 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 857 (emphasis added). The requirement that the appellant in this case, Cornejo, demonstrate that the ratifying Congress had an intent to create remedies enforceable in American courts through § 1983 finds no support in case law. Instead, such a remedy under § 1983 is presumptively available once Cornejo demonstrates that the ratifying Congress of the Vienna Convention had an intent to confer individual rights in Article 36(l)(b). Therefore, I respectfully dissent because it is clear that Article 36(l)(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 standard 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 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, 122 S.Ct. 2268 . 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 *865 “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 majority seems to confuse. Id. at 284, 122 S.Ct. 2268 . 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 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (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 federal statutes.” Id. at 284, 122 S.Ct. 2268 . Instead, “[ojnce a plaintiff demonstrates 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(l)(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 relevant to Cornejo’s claim is whether Article 36(l)(b) confers individual rights “on a particular class of persons.” Id. at 285, 122 S.Ct. 2268 .

II. Text of Article 36(l)(b) of the Vienna Convention

To determine whether Article 36(l)(b) confers individual rights on a particular class of persons, we must first look to the language of the treaty. See id. at 287 , 122 S.Ct. 2268 (examining the language of the statute). In order for the treaty to confer individual rights, “its text must be phrased in terms of the persons benefited.” Id. at 284 , 122 S.Ct. 2268 (citation and internal quotation mark omitted). Article 36(l)(b) states:

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 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 subpara-graph.

Vienna Convention, Art. 36(l)(b) (emphasis added). Article 36(l)(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(l)(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 seeking 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.” Gonzaga, 536 U.S. at 287 , 122 S.Ct. 2268 . Unlike Article 36(l)(b), the statute at issue in Gonzaga did not speak anywhere of the rights of anyone. In contrast, Article 36(l)(b) and particularly the last sentence with the reference to “his rights” “satisfies the strict test of clarity” established by the Supreme Court in Gonzaga. Jogi 480 F.3d 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 *866 859 (quoting Breard v. Greene, 523 U.S. 371, 376 , 118 S.Ct. 1352 , 140 L.Ed.2d 529 (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, 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 “con-ferr[ed] on a particular class of persons.” Gonzaga, 536 U.S. at 285 , 122 S.Ct. 2268 . In this case, the right is conferred on foreign nationals who are detained or arrested by competent 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(l)(b) referencing “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 860. To support this contention, the majority looks to titles contained in the Vienna Convention and other subparagraphs within Article 36. However, such an interpretation is contrary to the clear language of Article 36(l)(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 86(l)(b) belong entirely to the State, they easily could have written language consistent with such a construction or simply omitted the last sentence of Article 36(l)(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(l)(b)

The majority seeks to buttress its conclusion that Article 36(l)(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 860. According to Gonzaga , we do not need to address these sources because Article 36(l)(b) confers rights in “clear and unambiguous terms.” Gonzaga, 536 U.S. at 290 , 122 S.Ct. 2268 . 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(l)(b) as conferring an individual right.

First, the majority states that “[ejxcept for its final provisions, 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(l)(b) as made clear by the language of the provision. Instead, as will be discussed in greater detail below, the drafters understood Article 36(l)(b) to be a unique provision within the Vienna Convention that required extensive negotiations to secure passage.

Second, the majority relies on the Preamble to the Vienna Convention, which states:

Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of them differing constitutional and social systems,

*867 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 regulated by the provisions of the present Convention, Have agreed as follows: ...

Vienna Convention, pmbl. The majority contends that the language in the preamble stating that “the purpose of such privileges and immunities is not to benefit individuals” supports its contention that no part of the Vienna Convention, including Article 36(l)(b), was intended to confer individual rights. See Maj. Op. at 861.

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 , 19 S.Ct. 434 , 43 L.Ed. 749 (1899). In other words, a preamble cannot be relied upon to create ambiguity in a statute. In this case, the text of Article 36(l)(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 particularly helpful to our analysis” of whether Article 36(l)(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(l)(b) confers an individual right.

The majority also does not address an interpretation of the preamble that would be consistent with a rights-conferring Article 36(l)(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 nationals, but to make clear that the Convention’s purpose is to ensure the smooth functioning of consular posts in general, not to provide special treatment for individual consular officials.”). Thus, the language in the preamble explaining that “such privileges and immunities are not to benefit individuals” 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. Protecting the rights of detained foreign nationals is perfectly consistent with this interpretation of the Preamble.

Third, the majority relies on congressional intent in ratifying the Convention. The majority first looks to statements in the Report of the Committee on Foreign *868 Relations describing the function of the Vienna Convention in terms of the preamble. As discussed above, the language in the preamble does not support the majority’s conclusion that Article 36(l)(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 consular officers and other members of a consular post are stated in Article 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 securities regulation, taxation, customs duties and inspections.

Maj. Op. at 862. 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 officers and other members óf 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(l)(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 identifying 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 862. 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 862. 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 , 122 S.Ct. 2268 . 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 standard, 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 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 (1980) (explaining that the language “and laws” in § 1983 “must be read to include all federal statutes” and rejecting the contention that § 1983 only remedies violations of the Constitution or laws providing *869 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 foreseeability 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 established such a presumptive right.

Fourth, the majority contends that the contemporaneous position of the United States Department of State “reinforce[d] the view that the Convention as a whole, and Article 36 in particular, were not intended to create individually enforceable rights.” Maj. Op. at 862. 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 , 122 S.Ct. 2268 . 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.

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 diplomatic channels.” Maj. Op. at 862 (citing S. Exec. Rep. 91-9, app., at 19 (emphasis added)). The majority then paraphrases the adviser as stating, “[flailing that, he represented, disputes would be submitted to the ICJ pursuant to the Optional Protocol.” Id. The majority ignores the context of these statements, which demonstrate that the adviser did not have in mind the issue of whether Article 36(l)(b) confers individual rights. The question 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 Amendment?

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 whether the State Department understood the Convention, and Article 36(l)(b) in particular, to confer individual rights.

However, if we look at the mechanisms for resolving disputes cited by the State *870 Department advisors, a decision of the ICJ provides support for an interpretation of Article 36(l)(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(l)(b) “creates individual rights for the detained person in addition to the rights accorded the sending State, and that consequently the reference 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 conflicting interpretations of the Vienna Convention, Article 36(l)(b) does confer individual rights.

The ICJ’s determination is consistent with the contemporaneous understanding of Secretary of State William P. Rodgers. In the Letter of Submittal of the Vienna Convention to President Nixon, Secretary of State Rodgers indicated that:

[Article 36(l)(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 communicate 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, dissenting in part, quoting the Secretary’s letter transmitting the certified copy of the Convention) (emphasis added). The majority dismisses this statement as “simply mirror[ing] the provision itself, which unquestionably refers to “rights,” without shedding light on whether its intent was (or was not) to create privately enforceable rights.” Maj. Op. at 863. At the risk of sounding overly repetitive, all that Gonmga 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 understood Article 36(l)(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 problem of adjusting the notification obligations of the receiving State to the right of the individual concerned to request notification lies in the final sentence of subparagraph 1(b). That sentence requires authorities of the receiving State to 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 (emphasis added).

The majority does not address these contemporaneous statements. 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(l)(b) confers an individual right. See Maj. Op. at 862 (citing United States v. Stuart, 489 U.S. 353, 369 , 109 S.Ct. 1183 , 103 L.Ed.2d 388 (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 préparatoires because Article 36(l)(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 *871 Department’s position. Maj. Op. at 863. 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 tra-vaux préparatoires, I believe it is important to show that it also supports the conclusion that Article 36(l)(b) confers an individual right. 3

The original text of Article 36(l)(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 formulated, Article 36(l)(b) did not confer rights onto individuals. 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 officials 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(l)(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 *872 foreign national knew of this right, the delegate from the United Kingdom sought and received approval of an additional amendment that established the right of the detained foreign national to be informed of his right to request consul be notified of his decision. 6

On the basis of the evidence of the clear text of Article 36(l)(b), which specifies that it is 'the foreign national who has the right to be informed of the requirement that the detaining authorities must notify his consul if he so requests, it is clear that Article 36(l)(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 Department of State and the travaux pr'eparatoires do not undermine this interpretation. In fact, the contemporaneous position of the United States Department of State and the discussion of Article 36(l)(b) in the travaux pré-paratoires supports my conclusion that Article 36(l)(b) confers an individual right.

In sum, I believe that the confusion in the majority opinion ultimately arises from the erroneous interpretation of Gonzaga . Contrary to the majority’s view that there must be an intent to confer a privately enforceable individual right, Gonzaga only requires a demonstration that the statute confers an individual right. See Gonzaga, ’ 536 U.S. at 284 , 122 S.Ct. 2268 (“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.

IV. Enforceability of Article 36(l)(b) Rights Under § 1983

The Supreme Court held in Gonzaga , “[ojnce a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.” Id. at 284, 122 S.Ct. 2268 . This presumption can be defeated if Congress did not intend a remedy for the right. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 , 125 S.Ct. 1453 , 161 L.Ed.2d 316 (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, 125 S.Ct. 1453 (quoting Blessing v. Freestone, 520 U.S. 329, 341 , 117 S.Ct. 1353 , 137 L.Ed.2d 569 (1997)). “The express provision of one *873 method of enforcing a substantive rule suggests that Congress intended to preclude others.” Id. (quoting Alexander v. Sandoval, 532 U.S. 275, 290 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (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 remedy under § 1983. The means of enforcement identified by the ratifying Senate, which included diplomatic channels and the Optional Protocol, are far from the “comprehensive enforcement 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(l)(b) confers individual rights that are presumptively enforceable under § 1983. This presumption has not been defeated and therefore Article 36(l)(b) should be interpreted as conferring an individual right that is enforceable under § 1983. For these reasons, I respectfully dissent.

. 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 858. 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 857. The Seventh Circuit 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 Gonza-ga 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.

. 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.

. For a discussion generally in agreement with my conclusion that Article 36(l)(b) was intended by the drafter to confer individual rights on foreign 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).

. 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 Eleventh Plenary Meeting at 36, ¶ 9-10 (April 17, 1963).

. In particular, after a motion for reconsideration of Article 36(l)(b) passed, a proviso was proposed by a 17-state bloc to be added at the beginning of the text of Article 36(l)(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 pris *872 oner'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 responsibility from the State to notify the consul to the individual to request notification.

. Specifically, the delegate from the United Kingdom was concerned that the proviso as originally stated ("unless he expressly opposes it”) or as 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(l)(b), he needed to be informed of his right to make the request. Article 36(l)(b) with the proviso, "if he so request” and the inclusion of the amendment suggested by the United Kingdom delegate ("The said authorities shall inform the person concerned without delay of his rights under this subparagraph”), which is the last sentence of Article 36(l)(b) as currently written, received a two-thirds vote.