Petition for Writ of Certiorari — Mora v. New York (No. 08-106)

Supre:.ne Court, U.S.

FILED

98-10 & 2 3 7008

No. 08-___ OFFICE OF THE CLERK

Supreme Court of the Gnited States

RICARDO A. DE LOS SANTOS MoRa,

Petitioner,

We

THE PEOPLE OF THE STATE OF NEW YORK,

RICHARD A. BROWN, DISTRICT ATTORNEY, AND

FLUSHING QUEENS POLICE DEPARTMENT,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

JON ROMBERG WALTER DELLINGER

Seton Hall University SRI SRINIVASAN

School of Law (Counsel of Record)

Center for Social Justice IRVING L. GORNSTEIN

833 McCarter Highway O’MELVENY & MYERS LLP

Newark, NJ 07102 1625 Eye St., N.W.

(973) 642-8700 Washington, D.C. 20006

(202) 383-5300

Attorneys for Petitioner

i

QUESTION PRESENTED

Article 36(1)(b) of the Vienna Convention on Con-

sular Relations provides that local authorities “shall

. inform” the appropriate consular post of the de-

tention of a foreign national, “if he so requests,” and

“shall forward” any communication addressed to the

consular post by that person. Article 36(1)(b) further

provides that the authorities “shall inform” the per-

son detained of “his rights under this’ sub-

paragraph.” The question presented is:

Whether Article 36(1)(b) grants a detained for-

eign national a judicially enforceable right to be in-

formed of his entitlement to consular notification

and communication.

ii

PARTIES TO THE PROCEEDING BELOW

Pursuant to Rule 14.1(b) of the Rules of this

Court, petitioner states as follows:

Appellant before the court of appeals was peti-

tioner Ricardo A. de los Santos Mora.

Appellees before the court of appeals were the

People of the State of New York, the Queens County

District Attorney, and the New York City Police De-

partment. App., infra, 16a. The caption used by pe-

titioner in his complaint and by the court of appeals

in its opinion refers to the New York City Police De-

partment as the “Flushing Queens Police Depart-

ment.” Jd. at 16a n.11.

li

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

A. There Is A Conflict In The Circuits On

The Question Presented

B. The Question Presented Is One Of

Recurring National And International

Importance

C. The Court Of Appeals’ Decision Is

Incorrect

D. This Case Presents A Favorable Vehicle

For Review Of The Question Presented

CONCLUSION

APPENDIX A:

Court of Appeals Opinion

APPENDIX B:

District Court Opinion

APPENDIX C:

Relevant Treaty Provisions

iv

TABLE OF AUTHORITIES

CASES

Asakura v. Seattle,

265 U.S. 332 (1924)

Case Concerning Avena and Other

Mexican Nationals (Mex. v. U:S.),

2004 I.C.J. 12 (Mar. 21)

Bacardi Corp. of Am. v. Domenech,

311 U.S. 150 (1940)

Breard v. Greene,

523 U.S. 371 (1998)

Breard v. Pruett,

134 F.3d 615 (4th Cir. 1998)

Cannon v. Univ. of Chicago,

441 USS. 677 (1979)

Christ v. Detroit Police Dep’t,

2007 WL 2050793 (E.D. Mich. July

13, 2007)

Cornejo v. County of San Diego,

504 F.3d 853 (9th Cir. 2007)

De Lima v. Bidwell,

182 U.S. 1 (1901)

District of Columbia v. Heller,

128 S. Ct. 2783 (2008)

Erickson v. Pardius,

127 S. Ct. 2197 (2007)

Gamez-Reyes v. Dobre,

2007 WL 954238 (E.D. Tex. Mar. 26,

Gandara v. Bennett,

--- F.3d ---, 2008 WL 2130577 (11th

Cir. May 22, 2008)

Vv

TABLE OF AUTHORITIES

Gardner v. Meggs,

2007 WL 3231734 (N.D. Fla. Oct. 30,

Gomez v. Cal. Bd. of Prison Terms,

2008 WL 1946540 (E.D. Cal. May 1,

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002)

Hauenstein v. Lynham,

100 U.S. (10 Otto) 483 (1880)

Jacko v. Mich. State Police,

2007 WL 1017648 (E.D. Mich. Mar.

30, 2007)

Jogi v. Voges,

480 F.3d 822 (2007)

Johnson v. Browne,

205 U.S. 309 (1907)

Keszthelyi v. Bowman,

2007 WL 626221 (E.D. Tenn. Feb.

23, 2007)

Kolovrat v. Oregon,

366 U.S. 187 (1961)

LaGrand Case (F.R.G. v. U.S.),

2001 I.C.J. 466 (June 27)

Leka v. United States,

2008 WL 686797 (N.D.N.Y. Mar. 10,

Lopez v. Wallace,

266 Fed. App’x 882 (11th Cir. 2008)

Medellin v. Dretke,

544 U.S. 660 (2005)

vl

TABLE OF AUTHORITIES

Perkins v. Elg,

307 U.S. 325 (1939)

Sanchez-Llamas v. Oregon,

126 S. Ct. 2669 (2006)

Shanks v. Dupont,

28 U.S. (3 Peters) 242 (1830)

United States v. Alvarez-Machain,

504 U.S. 655 (1992)

United States v. Emuegbunam,

268 F.3d 377 (6th Cir. 2001)

United States v. Jimenez-Nava,

243 F.3d 192 (5th Cir. 2001)

United States v. Li,

206 F.3d 56 (1st Cir. 2000)

United States v. Lombera-Camorlinga,

206 F.3d 882 (9th Cir. 2000)

United States v. Stuart,

489 U.S. 353 (1989)

42 U.S.C. § 1983

TREATY PROVISIONS

Vienna Convention on Consular

Relations,

21 U.S.T. 77, 596 U.N.T.S. 261

vii

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Amnesty International, United States of

America: A time for action —

Protecting the consular rights of

foreign nationals facing the death

penalty (Aug. 2001)

Br. of Honduras, et al. as amici curiae,

Bustillo v. Johnson, No. 05-51 (Sept.

23, 2005)

Br. of United States as Amicus Curiae

in Support of Petition for Rehearing

and Rehearing En Banc, Jogi v.

Voges, No. 01-1657 (7th Cir. Nov. 16,

Mark J. Kadish, Article 36 of the Vienna

Convention on Consular Relations: A

Search for the Right to Consul, 18

Mich. J. Intl L. 565 (1997)

1 Official Records, United Nations

Conference on Consular Relations

338 (1963)

U.S. Census Bureau, The Foreign-Born

Population: 2000 (Dec. 2003)

Mark Warren, Human Rights

Research, Foreign Nationals and the

Death Penalty in the United States

(updated Feb. 29, 2008)

nl

7

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ricardo A. de les Santos Mora respect-

fully prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A) is re-

ported at 524 F.3d 183 (2d Cir. 2008). The opinion of

the district court (App. B) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on April 24, 2008. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

TREATY PROVISIONS INVOLVED

Relevant provisions of the Vienna Convention on

Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261

(1969), are set forth in the appendix to the petition

(App. C).

STATEMENT OF THE CASE

Petitioner has alleged that respondents violated

his right under Article 36(1)b) the Vienna Conven-

tion to be informed of his entitlement to consular no-

tification and communication. Consistent with the

directive in the Convention that remedies are de-

termined in the first instance by the law of the host

country, see Article 36(2), petitioner seeks relief un-

der, inter alia, 42 U.S.C. & 1983, for respondents’ al-

leged violation of his treaty rights.

The court of appeals ruled against petitioner on

the threshold ground that Article 36(1)(b) of the Vi-

enna Convention does not confer on detained foreign

2

nationals a judicially enforceable right to be in-

formed of their entitlement to consular notification

and communication. The court expressly declined to

decide whether, if Article 36(1)b) confers such a

right, petitioner would be able to seek relief under

§ 1983 for respondents’ violation of that right. This

case therefore presents a single question: whether

Article 36(1)(b) of the Vienna Convention confers on

detained foreign nationals a judicially enforceable

right to be informed of their entitlement to consuiar

notification and communication.

This Court has previously granted certiorari to

decide that question; there is a square conflict in the

circuits on the question; the question is one of recur-

ring national and international importance; the deci-

sion below is incorrect; and this case presents a fa-

vorable vehicle for resolving the issue. This Court

should therefore grant review.

1. Because the courts below dismissed peti-

tioner’s complaint for failure to state a claim, the

facts in the complaint must be assumed to be true

for purposes of review. Erickson v. Pardus, 127 S.

Ct. 2197, 2197 (2007) (per curiam). Those facts are

as follows:

Petitioner is a native and citizen of the Domini-

can Republic. In 1991, petitioner immigrated to the

United States. In 1992, petitioner was arrested in

Queens, New York, and charged with attempted

robbery. At the time of the arrest, petitioner did not

speak English. App., infra, 15a.

Although petitioner told his arresting officers in

Spanish that he did not understand their questions

and that he wanted to speak with someone in Span-

ish, the arresting officers interrogated petitioner in

3

English. Petitioner later received court-appointed

counsel, but that attorney did not speak Spanish ei-

ther. Without the benefit of an interpreter, peti-

tioner was coerced into pleading guilty. Petitioner

was sentenced to six months of imprisonment and

_ five years of probation. App. 15a.

The district attorney and the arresting officers

knew that petitioner was a citizen of the Dominican

Republic. App. 15a-16a. Under Article 36(1)b) of

the Vienna Convention on Consular Relations, 21

U.S.T. 77, 100-01, 596 U.N.T.S. 261 (1969), they

were therefore obligated to inform petitioner that he

was entitled to communicate with his home consu-

late. Yet petitioner was never informed that he

could communicate with the Dominican consulate.

App. 15a-16a.

2. Petitioner filed a pro se complaint in the

United States District Court for the Eastern District

of New York, alleging that respondents, the Queens

County District Attorney and New York City Police

Department, violated his rights under Article 36 “by

failing to inform him that he could contact the Do-

minican consulate.” App. 16a &n.11. Petitioner fur-

ther alleged that if he “would [have] known of his

Vienna Convention rights,” then “[t]he outcome of

[his] case would have been different.” App. 16a. Pe-

titioner also alleged that the failure to provide notice

was a “serious error” that cost petitioner “his free-

dom.” Jd. Petitioner has not challenged the underly-

ing criminal conviction, but instead has requested

damages and other appropriate relief, including

nominal damages. See id.; C.A. App. A6; Pet. C.A.

Supp. Br. 6.

A

The district court dismissed petitioner’s com-

plaint for failure to state a claim upon which relief

can be granted, holding that “(t]he Vienna Conven-

tion was meant to protect the rights of states to care

for their nationals traveling abroad, not to protect

the rights of individuals.” App. 18a; see also id. at

6la. The court certified that any appeal from its or-

der would not be taken in good faith. Jd. at 62a.

Petitioner filed a timely notice of appeal, and the

court of appeals appointed counsel to represent him.

The court also invited the United States to file a

brief as amicus curiae.

3. The court of appeals then affirmed. The court

noted that “[{ojur sister Courts of Appeals are split”

on the question whether the Vienna Convention con-

fers judicially enforceable rights. App. 7a. The court

explained that the Fifth, Sixth, and Ninth Circuits

had held that “Article 36’s obligation to inform aliens

of their right to consular notification does not create

judicially enforceable individual rights,” while the

Seventh Circuit had held that “Article 36 creates in-

dividual rights to be informed of consular notifica-

tion and access that can be vindicated in a private

action.” Jd. Agreeing with the position of the Fifth,

Sixth, and Ninth Circuits, the court of appeals held

that Article 36(1)(b) does not confer on detained for-

eign nationals a judicially enforceable right to be in-

formed of their entitlement to consular notification

and communication. Id. at 25a.

The court of appeals relied on two textual consid-

erations in Article 36(1)(b) to support that conclu-

sion. First, the court noted that, while at least some

of the requirements in Article 36(1) “are explicitly

referred to as rights,” the entitlement to notice of

5

those rights “is never itself specifically referred to as

a ‘right.” App. 23a. Second, the court found it sig-

nificant that the Convention contains no express

statement that “private individuals can seek redress

for violations of this obligation—or any other obliga-

tion set forth in Article 36—in the domestic courts of

States-parties.” Id.

The court of appeals also relied on a statement in

the preamble to the Convention noting generally

that “the purpose of [consular] privileges and immu-

nities is not to benefit individuals but to ensure the

efficient performance of functions by consular posts

on behalf of their respective States.” 21 U.S.T. at 79.

That language, the court concluded, reflects a broad

principle “that the Convention is concerned primar-

ily, if not exclusively, with establishing relationships

and rights as between States and Stcste officials.”

App. 29a.

In addition, the court of appeals invoked a legal

presumption “against inferring individual rights

from treaties.” App. 42a. In the court’s view, the

language of Article 36(1) was not sufficiently clear to

overcome that presumption. Jd. at 46a. The court of

appeals also assigned “great weight” to the United

States’ view that that no provision of Article 36 cre-

ates a judicially enforceable individual right. Jd.

The court of appeals recognized that the Interna-

tional Court of Justice (ICJ) had held that Article 36

grants foreign nationals an individual right to be no-

tified that they may communicate with their home

consulate, and that those rights may be “asserted ...

within the domestic legal system of the United

States.” Case Concerning Avena and Other Mexican

Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 21); see

6

also LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466

(June 27) (“The clarity of these provisions, viewed in

their context, admits of no doubt.”). The court dis-

agreed with the ICJ’s conclusion, however, empha-

sizing that “[wle are not bound .. . to give [the ICJ’s]

interpretation any particular weight when consider-

ing the text and context of a treaty.” App. 51a.

Moreover, the court of appeals rejected peti-

tioner’s reliance on the references in the treaty’s ne-

gotiating and drafting history (travaux prépara-

toires) to the “sacred rights” of foreign nationals to

communicate with their consular officials. App. 54a.

Those statements were unhelpful to petitioner, the

court concluded, because they did not specify that

those rights could be enforced by individuals in judi-

cial proceedings. Id.

The court of appeals observed that, in Sanchez-

Llamas v. Oregon, 126 S. Ct. 2669 (2006), this Court

“assumied], without deciding,’ that Article 36 cre-

ated a judicially-enforceable right to consular notifi-

cation and access,” and decided the case on the sepa-

rate ground “that an exclusionary remedy was inap-

propriate.” App. 35a-36a n.23. The court of appeals

expressly declined to follow that approach, i.e., that

of “avoid[ing] the question whether the treaty cre-

ate[s] an individual right.” Jd. Instead, the court

held that Article 36 does not create an individual

right, and specifically declined to reach the separate

remedial question whether, if there were such a

right, it could be vindicated in an action for damages

under § 1983. Id.

In fact, the court stated that “assuming arguendo

that [petitioner] has an individual right under the

Convention, his claim for damages pursuant to

7

§ 1983 would likely be actionable” because “§ 1983

would likely provide a cause of action for damages in

the case of a treaty violation in the same manner

that [it] provides a cause of action for remedying a

statutory violation.” Jd. Accordingly, while the

court of appeals at certain points characterized its

decision as addressing whether Article 36(1)(b) con-

fers a judicially enforceable right that can be vindi-

cated in an action for damages, see, e.g., id. at 5a, 9a,

19a, the court in fact ultimately rested its decision

solely on the determination that, even assuming any

right conferred by Article 36(1)(b) could be vindi-

cated in an action for damages under § 1983, Article

36(1)(b) fails as an antecedent matter to confer on a

foreign national a judicially enforceable right to be

informed of his entitlement to consular notification

and communication. Id. at 20a-22a, 35a-36a n.23.

REASONS FOR GRANTING THE WRIT

In Sanchez-Llamas v. Oregon, 126 S. Ct. 2669

(2006), this Court granted certiorari to decide the

question “whether Article 36 of the Vienna Conven-

tion grants rights that may be invoked by individu-

als in a judicial proceeding.” Jd. at 2677. Because

the Court concluded that the petitioners in that case

would not be entitled to the relief they sought in any

event, however, the Court did not resolve that fun-

damental threshold question. Instead, “it assumed,

without deciding,” that Article 36 grants foreign na-

tionals “an enforceable right to request that their

consular officers be notified of their detention, and

an accompanying right to be informed by authorities

of the availability of consular notification,” and ruled

against the petitioners on other grounds. /d.

8

Like Sanchez-Llamas, this case presents the

question whether Article 36 confers on foreign na-

tionals a judicially enforceable right to be informed

of their entitlement to consular notification and

communication. For the same reasons that the

Court granted certiorari on that question in San-

chez-Llamas, it should also grant certiorari on that

question here. Indeed, the importance of resolving

that threshold question has only increased since the

Court’s decision in Sanchez-Llamas.

First, the decision below is in direct conflict with

a decision of the Seventh Circuit, deepening an ac-

knowledged circuit split. That conflict can only be

resolved by this Court.

The issue is also one of substantial national and

international importance. The issue “has arisen

hundreds of times in the lower federal and state

courts,” Sanchez-Llamas, 126 S. Ct. at 2694 (Breyer,

J., dissenting), evidencing a disturbing lack of com-

pliance with Article 36’s terms. See Medellin v.

Dretke, 544 U.S. 660, 674 (2005) (O’Connor, J., dis-

senting) (“In this country, the individual States’ (of-

ten confessed) noncompliance with the treaty has

been a vexing problem.”).

The decision below is also incorrect. As the four

Justices who have addressed the question have con-

cluded, Article 36 confers on foreign nationals a judi-

cially enforceable right to be informed of their enti-

tlement to consular notification and communication.

Sanchez-Llamas, 126 S. Ct. at 2694-98. (Breyer, J.,

dissenting); cf. Breard v. Greene, 523 U.S. 371, 376

(1998) (per curiam) (Article 36 “arguably confers on

an individual the right to consular assistance follow-

ing arrest”).

9

Finally, this case provides a favorable vehicle for

resolving that question because it is the only ques-

tion presented by the petition. While petitioner has

argued that he can vindicate his right through an

action for damages under § 1983, the court of ap-

peals declined to reach that question, and instead

rested its decision solely on the absence of an indi-

vidual right. This Court should therefore grant re-

view and hold that a detained foreign national has a

judicially enforceable right to be informed of his enti-

tlement to consuiar notification and communication.

A. There Is A Conflict In The Circuits On The

Question Presented

There is a square conflict in the circuits on the

question presented in this case. The holding of the

court below that Article 36 does not confer on foreign

nationals a judicially enforceable right to be in-

formed of their entitlement to consular notification

and communication is consistent with the decisions

of four other circuits. In particular, the Fifth, Sixth,

Ninth, and Eleventh Circuits have held that Article

36 does not create judicially enforceable rights.

United States v. Jimenez-Nava,‘ 243 F.3d 192, 198

(5th Cir. 2001) (rejecting argument that “Article 36

creates judicially enforceable rights”); United States

v. Emuegbunam, 268 F.3d 377, 391-94 (6th Cir.

2001) (“[T]he Vienna Convention does not create a

right for a detained foreign national to consult with

the diplomatic representatives of his nation that the

federal courts can enforce.”); Cornejo v. County of

San Diego, 504 F.3d 853, 855 (9th Cir. 2007) (“Arti-

cle 36 does not create judicially enforceable rights.”);

Gandara v. Bennett, --- F.3d ---, 2008 WL 2130577,

at *4-5 (11th Cir. May 22, 2008) (“[T]he Vienna Con-

10

vention does not confer enforceable individual

rights.”).

As the court below acknowiedged (App. 7a), those

decisions directly conflict with the Seventh Circuit’s

decision in Jogi v. Voges, 480 F.3d 822 (2007). In

Jogi, the question presented was “whether a foreign

national who is not informed of his right to consular

notification under Article 36 of the Vienna Conven-

tion .. . has any individual remedy available to him

in a U.S. court.” Id. at 824. The Seventh Circuit re-

solved that question by squarely holding that “Arti-

cle 36 confers individual rights on detained [foreign]

nationals.” Jd. at 835. The court specifically relied

on the language in Article 36 specifying that au-

thorities “shall” inform a detained foreign national of

“his rights.” Jd. at 833. The court explained that be-

cause this text emphasizes that Article 36 rights “are

the citizen’s,” and because the language is “manda-

tory and unequivocal,” Article 36 satisfies the test

for the creation of judicially enforceable individual

rights. Id.

Thus, in the Seventh Circuit, detained foreign

nationals have a judicially enforceable right to be in-

formed of their entitlement to consular notification

and. communication, while detained foreign nationals

in the Second, Fifth, Sixth, Ninth, and Eleventh Cir-

cuits have no such right.

That circuit conflict is also firmly entrenched.

Five circuits have held that Article 36(1) does not

create judicially enforceable rights, and there is no

realistic possibility that the Seventh Circuit will re-

consider its position that Article 36(1) does create

judicially enforceable rights. At the time the Sev-

enth Circuit issued its unanimous decision in Jogi,

11

the Fifth and Sixth Circuits had already; held that

Article 36(1) does not confer judicially enforceable

rights. Moreover, the Seventh Circuit’s decision re-

flects a careful consideration of all the major argu-

ments bearing on the question presented.

In addition, after the Seventh Circuit issued its

initial decision in Jogi holding that Article 36(1) con-

fers on foreign nationals judicially enforceable

rights, the defendants sought rehearing en banc.

The United States filed a brief as amicus curiae in

support of that petition, arguing that Article 36(1)

does not create judicially enforceable rights.! In re-

sponse to the petition, no judge in the Seventh Cir-

cuit voted to grant rehearing en banc. See Jogi, 480

F.3d at 824-25 & n.*. Instead, the court issued a de-

cision on rehearing unanimously reaffirming its ini-

tial conclusion that Article 36(1) confers judicially

enforceable rights. Thus, there is an entrenched

conflict in the circuits on the question presented that

can only be resolved by this Court.

Nor does it matter that the circuits are aligned 5-

1 in favor of the Second Circuit’s position. The fact

remains that foreign nationals have rights in one

circuit that they do not have in others. That 5-1

alignment also masks a substantial division of opin-

ion among the judges that have considered the ques-

tion.

In particular, a number of judges have written

concurring and dissenting opinions concluding that

1 See Br. of United States as Amicus Curiae in Support of

Petition for Rehearing and Rehearing En Banc, at 6-10,

Jogi v. Voges, No. 01-1657 (7th Cir. Nov. 16, 2005), avail-

able at http://‘www.ca7.uscourts.gov/efn/efns.fwx?submit

=showbr&caseno=01-1657 &shofile=01-1657_ 008.pdf.

12

Article 36(1)(b) creates a judicially enforceable right

to be informed of the entitlement to consular notifi-

cation and communication. For example, Judge Nel-

son has concluded that “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”

under the “clear language in Article 36(1)(b).”

Cornejo, 504 F.3d at 864-73 (Nelson, J., dissenting).

Judge Tourella has stated that “I have some diffi-

culty envisioning how it is possible to frame lan-

guage that more unequivocally establishes that the

protections of Article 36(1)(b) belong to the individ-

ual national, and that the failure to promptly notify

him/her of these rights constitutes a violation of

these entitlements by the detaining authority.”

United States v. Li, 206 F.3d 56, 68-76 (1st Cir.

2000) (en banc) (Tourella, C.J., concurring in part

and dissenting in part). And Judge Butzner has

noted that “the text emphasizes that the right of

consular notice and assistance is the citizen’s” and

this language is “mandatory and unequivocal.”

Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998)

(Butzner, J., concurring), affd sub nom., Breard v.

Greene, 523 U.S. 371 (1998) (per curiam); see also

United States v. Lombera-Camorlinga, 206 F.3d 882,

890 (9th Cir. 2000) (en banc) (Boochever, J., dissent-

ing); Gandara, 2008 WL 2130577 at *5-12 (Rodgers,

J., specially concurring).

Those opinions underscore what the Eleventh

Circuit acknowledged even while ultimately conclud-

ing that Article 36(1)(b) fails to confer judicially en-

forceable rights: that the “arguments in favor of in-

dividual rights under the Treaty are impressive.”

Gandara, 20008 WL 2130577, at *3. Indeed, the

13

four Justices of this Court who have addressed the

question presented in this case have all concluded

that Article 36(1) creates judicially enforceable

rights. Sanchez-Llamas, 126 S. Ct. at 2694-98

(Breyer, J., dissenting). Given the division in the

circuits and the division in judicial opinion on the

question presented, this Court’s review is warranted.

B. The Question Presented Is One Of Recur-

ring National And International Importance

The question whether Article 36 creates judicially

enforceable individual rights “has arisen hundreds of

times in the lower federal and state courts.” San-

chez-Llamas, 126 S. Ct. at 2694 (Breyer, J., dissent-

ing). That litigation attests to the recurring impor-

tance of the question presented.

Those cases also reflect a disturbing reality: de-

spite the efforts of the federal government, see App.

31a n.22, notifying arrested foreign nationals of their

rights under the Article 36 has been the exception,

rather than the rule, in the United States. An ex-

amination of New York City arrest records from

1997 revealed that 53,000 foreign nationals were ar-

rested, but consulates were notified of the arrests in

only four cases.? Even in capital cases, less than five

percent of foreign nationals sentenced to death re-

ceived timely notification of their rights under Arti-

cle 36.3 Because of the “vexing problem” of state and

2 Mark Warren, Human Rights Research, Foreign Na-

tionals and the Death Penalty in the United States (up-

dated Feb. 29, 2008), available at http://

www.deathpenaltyinfo.org/article.php?did=198&scid=31.

3 Id. (concluding that “only 7 cases of complete compliance

with Article 36 requirements have been identified so far,

out of more than 160 total reported death sentences”); see

14

local authorities’ “(often confessed) noncompliance”

with Article 36, such cases present “questions that

will inevitably recur.” Medellin, 544 U.S. at 674-75

(O’Connor, J., dissenting).

There is no evidence that compliance with the ob-

ligations in Article 36(1) has substantially improved

since this Court’s decision in Sanchez-Llamas.

Moreover, in the two years since Sanchez-Llamas,

the question whether Article 36(1) creates judicially

enforceable rights has continued to arise with regu-

larity. See, e.g., App. 16a n.12 (citing cases); Gan-

dara, 2008 WL 2130577; Lopez v. Wallace, 266 Fed.

App’x 882, 883 (11th Cir. 2008); Cornejo, 504 F.3d at

854-55.4 The frequent litigation confirms the con-

tinuing importance of the issue.

This Court’s responsibility to ensure the uniform

interpretation and application of federal law is par-

ticularly important in this context. As five nations

that are signatories to the Vienna Convention ex-

plained in urging the Court to grant review in the

companion case to Sanchez-Llamas: “When nations

also Amnesty International, United States of America: A

time for action — Protecting the consular rights of foreign

nationals facing the death penalty, at 4 (Aug. 2001).

4 See also, e.g., Gomez v. Cal. Bd. of Prison Terms, 2008

WL 1946540, at *1 (E.D. Cal. May 1, 2008); Leka v.

United States, 2008 WL 686797, at *2 (N.D.N.Y. Mar. 10,

2008); Gardner v. Meggs, 2007 WL 3231734, at *1-2 (N.D.

Fla. Oct. 30, 2007); Christ v. Detroit Police Dep’t, 2007

WL 2050793, at *2 (E.D. Mich. July 13, 2007); Jacko v.

Mich. State Police, 2007 WL 1017648, at *2 (E.D. Mich.

Mar. 30, 2007); Keszthelyi v. Bowman, 2007 WL 626221,

at *4 (E.D. Tenn. Feb. 23, 2007); Gamez-Reyes v. Dobre,

2007 WL 954238, at *3 (E.D. Tex. Mar. 26, 2007).

15

such as amici treat with the United States on impor-

tant matters such as the right to consular notifica-

tion, it is essential that they have assurance that the

United States will be able to ensure compliance with

its treaty obligations by all organs of the govern-

ment. ... [Cjonflicting judicial decisions on the ap-

plication and interpretation of a treaty undermine

this assurance.” Br. of Honduras, et al. as Amici Cu-

riae, Bustillo v. Johnson, No. 05-51, at 11 (Sept. 23,

2005), available at 2005 WL 2376680.

The question presented is therefore one of recur-

ring national and international importance. “(Given

its importance,” Sanchez-Llamas, 26 S. Ct. at 2694

(Breyer, J., dissenting), review is warranted.

C. The Court Of Appeals’ Decision Is Incorrect

Review is also warranted because the court of ap-

peals’ decision is incorrect. As four Justices of this

Court have concluded, Article 36(1)(b) grants de-

tained foreign nationals a judicially enforceable right

to be informed of their entitlement to consular notifi-

cation and communication. Sanchez-Llamas, 126 S.

Ct. at 2694-98 (Breyer, J., dissenting).

1. In determining whether a treaty creates a ju-

dicially enforceable right, the Court begins with an

examination of the text. United States v. Alvarez-

Machain, 504 U.S. 655, 661 (1992). Subparagraph

1(b) of Article 36 provides as follows:

(if he so requests, the competent authorities

of the receiving State shall, without delay, in-

form the consular post of the sending State if,

within its consular district, a national of that

State is arrested...or is detained in any

other manner. Any communication addressed

to the consular post by the person ar-

16

rested ... shall also be forwarded by the said

authorities without delay. The said authori-

ties shall inform the person concerned without

delay of his rights under this sub-paragraph.

21 U.S.T. at 101 (emphasis added).

That language establishes that Article 36(1)(b)

creates three judicially enforceable rights. Each sen-

tence of the subparagraph uses mandatory language

(“shall”) and expressly links the duty described to

the detained foreign national (“if he so requests,”

“communication ... by the person arrested,” “inform

the person concerned”). The final sentence uses not

only the term “rights,” but also the possessive adjec-

tive “his,” making clear that the rights belong to “the

person” arrested or detained. Thus, the plain lan-

guage of Article 36(1) creates judicially enforceable

rights. Sanchez-Llamas, 126 S. Ct. at 2694-98

(Breyer, J., dissenting).

This Court’s approach to deciding whether a

statute creates a judicially enforceable right con-

firms that conclusion. In that context, this Court

asks whether the statute uses “rights-creating” lan-

guage—language that is both mandatory and “indi-

vidually focused.” Gonzaga Univ. v. Doe, 536 US.

273, 284 n.3, 287 (2002); see Cannon v. Univ. of Chi-

cago, 441 U.S. 677, 692 n.13 (1979). Because Article

36(1) uses language that is both mandatory and in-

dividually focused, applying that approach here

leads to the conclusion that Article 36(1) creates ju-

dicially enforceable rights.

2. The court of appeals’ reasons for reaching a

contrary conclusion are unpersuasive. First, the

court concluded that, while “at least some of thel[]

requirements [of subparagraph (1)(b)] are explicitly

17

referred to as ‘rights’ of the individual foreign na-

tionals, . . . a receiving State’s obligation to inform a

detained foreign national of his ‘rights’ under para-

graph 1(b)” is “never itself expressly referred to as a

right.” App. 23a. (emphasis added).

That distinction is untenable. All three sentences

share the same structure, describing what local au-

thorities “shall” do. The first and third sentences

even use the same verb: the authorities shall inform

the consulate of the arrest upon request, and shall

inform the arrested person of his rights. Moreover,

all three sentences frame the obligation as one run-

ning to a specific class of detained foreign nationals.

The common structure of the three sentences estab-

lishes that they have a common effect, and that all

three create judicially enforceable rights.

Indeed, the provision establishing a duty to in-

form foreign nationals of their entitlement to consu-

late notification and communication is especially

clear in creating a judicially enforceable individual

right. While the first two obligations refer to the

right of both the detained individual and the consu-

late, the obligation to inform a foreign national of his

rights “exclusively concerns the detained individual.”

Medellin, 544 U.S. at 687 (O’Connor, J., dissenting).

Furthermore, obligations to provide notice of

other rights are readily understood as creating

rights themselves. As Justice O’Conner has ex-

plained, if a statute required “that arresting authori-

ties ‘shall inform a detained person without delay of

his right to counsel,” it is difficult to imagine what

“more would be required before a defendant could

invoke that statute to complain in court if he had not

been so informed.” Jd.

18

The court of appeals’ distinction also makes little

sense. There is no plausible reason to confer on a

foreign national a judicially enforceable right both to

consular notification and to consular communication,

only to deny judicial enforcement of the closely re-

lated entitlement to be informed of those rights, and

to require resort to claims by national governments

in the international arena. That is particularly true

because when, as here, a foreign national is unaware

of his rights to consular notification and communica-

tion, a violation of his right to notice operates as a

denial of the other two rights. The court of appeals

offered no reason why the parties to a treaty would

create such an incoherent scheme.

The court of appeals also erred in emphasizing

the absence of an express statement in the treaty to

the effect that “private individuals can seek redress

for violations of this obligation ... in the domestic

courts of States-parties.” App. 23a (emphasis

added). This Court “has repeatedly enforced treaty-

based rights of individual foreigners” based on trea-

ties that “do not share any special magic words.”

Medellin, 544 U.S. at 687 (O’Connor, J., dissenting).

For example, in Kolovrat v. Oregon, 366 U.S. 187,

192 (1961), the Court held that a treaty provision

that conferred on foreign nationals “rights which the

{United States’? laws grant” created a judicially en-

forceable individual right. Similarly, in Asakura v.

Seattle, 265 U.S. 332, 340 (1924), the Court held that

a treaty provision granting foreign nationals “liberty

... to carry on trade... upon the same terms as na-

tive citizens or subjects” created a judicially enforce-

able individual right. Neither of those treaties ex-

pressly referred to “domestic courts” or judicial en-

19

forcement. See Medellin, 544 U.S. at 687 (O’Connor,

J., dissenting).

The court of appeals’ insistence on such language

is particularly inappropriate in the context of the Vi-

enna Convention because Article 36(2) of the Con-

vention provides that “[t]he rights referred to in

paragraph 1 of this Article shall be exercised in con-

formity with the laws and regulations of the receiv-

ing State,” provided that “the said laws and regula-

tions must enable full effect to be given to the pur-

poses for which the rights accorded under this Arti-

cle are intended.” 21 U.S.T. at 101. As the Court

explained in Sanchez-Liamas, that provision makes

clear that the Vienna Convention “expressly leaves”

the remedies for violation of the rights protected by

Article 36 to “domestic law.” 126 S. Ct. at 2678.

The court of appeals (App. 29a-30a) also relied on

the language in the Convention’s preamble stating

that the “purpose” of the consular privileges and

immunities described in the treaty “is not to benefit

individuals but to ensure the efficient performance of

functions by consular posts on behalf of their respec-

tive States.” 21 U.S.T. at 79. The general language

of a preamble, however, cannot trump the plain lan-

guage of Article 36(1). Jogi, 480 F.3d at 834; cf. Dis-

trict of Columbia v. Heller, 128 S. Ct. 2783, 2789

(2008) (a prefatory clause “does not limit or expand

the scope of the operative clause”). In any event, the

preamble is not in any tension with the conclusion

that Article 36(1) creates judicially enforceable

rights. Granting foreign nationals a judicially en-

forceable right to be informed of their entitlement to

consular notification and communication plainly ad-

vances the purpose of ensuring “the efficient per-

20

formance of functions by consular posts.” 21 U.S.T.

at 79.

3. Other considerations also support the conclu-

sion that Article 36(1) creates judicially enforceable

individual rights. In LaGrand, the ICJ found it

“(slignificant[]” that subparagraph 1(b) obligates au-

thorities to inform an arrested person of “his rights”

and that paragraph 1(c) allows the person to refuse

consular assistance by “expressly oppos[ing] such ac-

tion.” 2001 I.C.J. at 494. The court concluded that

“(t]he clarity of these provisions, viewed in their con-

text, admits of no doubt” and that the rights belong

to individuals. Jd. In Avena, the court further held

that “the individual nghts of nationals under para-

graph 1 (b) of Article 36 of the Vienna Convention

are rights which are to be asserted, at any rate in

the first place, within the domestic legal system of

the United States.” 2004 I.C.J. at 35. As an “inter-

pretation of an international agreement by an inter-

national court,” those decisions are entitled to “re-

spectful consideration” by United States courts.

Sanchez-Llamas, 126 S. Ct. at 2685 (internal quota-

tion marks omitted).

The negotiating and drafting history (travaux

préparatoires) of Article 36 reinforce the conclusion

that the drafters intended to confer judicially en-

forceable rights on foreign nationals. See, e.g., 1 Of-

ficial Records, United Nations Conference on Consu-

lar Relations 338 (1963) (“Official Records”) (state-

ment of Korea) (calling Article 36(1)(b) “extremely

important because it relate[s] to one of the funda-

mental and indispensable rights of the individual”);

id. at 332 (statement of Spain) (“the rights of the na-

tionals of a sending State” to consular access are

among “the most sacred rights of foreign residents in

21

a country”). Indeed, some delegates opposed the

language of Article 36(1)(b)—and unsuccessfully at-

tempted to amend it to omit any mention of individ-

ual rights—precisely because it “introduced a nov-

elty to the convention by defining the rights of the

nationals of the sending States and not... the rights

of consular officials.” Jd. (statement of Kuwait); see

Mark J. Kadish, Article 36 of the Vienna Convention

on Consular Relations: A Search for the Right to

Consul, 18 Mich. J. Intl L. 565, 596 (1997).

In addition, this Court has held that “where a

provision of a treaty fairly admits of two construc-

tions, one restricting, the other enlarging, rights

which may be claimed under it, the more liberal in-

terpretation is to be preferred.” Bacardi Corp. of

Am. v. Domenech, 311 U.S. 150, 163 (1940). This

Court has consistently followed that principle of

treaty construction for two centuries. See United

States v. Stuart, 489 U.S. 353, 366 (1989); Kolovrat,

366 U.S. at 193; Hauenstein v. Lynham, 100 U.S. (10

Otto) 483, 487 (1880); Shanks v. Dupont, 28 U.S. (3

Peters) 242, 249 (1830). As Justice Story put it for

the Court in Shanks: “If the treaty admits of two in-

terpretations, and one is limited, and the other lib-

eral; one which will further, and the other exclude

private rights; why should not the most liberal expo-

sition be adopted?” 28 U.S. at 249. Thus, even if Ar-

ticle 36(1) were ambiguous, it should be interpreted

to create judicially enforceable rights.

4. The court of appeals held that there is a pre-

sumption against treaties creating judicially en-

forceable rights that can be overcome only by a clear

showing that the drafters intended to “confer rights

that could be vindicated in the manner sought by the

affected individuals.” App. 45a. That clear state-

22

ment rule is inconsistent with the principle of liberal

construction articulated by Justice Story, and this

Court has never adopted it. See Sanchez-Llamas,

126 S. Ct. at 2697 (Breyer, J., dissenting) (“The prob-

lem with that argument is that no such presumption

exists.”). Even if treaties generally do not create ju-

dicially enforceable rights, there is no basis for deny-

ing judicial enforceability in circumstances in which,

as with Article 36(1)(b), the terms of the treaty in-

voke mandatory, rights-creating language directed to

a specific class of individuals. Decisions like Kolov-

rat and Asakura demonstrate that the treaty lan-

guage in Article 36(1) is sufficiently clear to create

judicially enforceable rights.

Finally, the court of appeals assigned “great

weight” to the government’s position that Article 36

creates no individual rights that can be invoked in

court under any circumstances. App. 46a. This

Court, however, has not hesitated to reject the gov-

ernment’s interpretation of a treaty when, as here, it

is contrary to the text of the treaty. See Perkins vu.

Elg, 307 U.S. 325, 328, 337-42 (1939); Johnson v.

Browne, 205 U.S. 309, 319-21 (1907); De Lima uv.

Bidwell, 182 U.S. 1, 181, 194-99 (1901). As Justice

Breyer stated for four members of this Court in San-

chez-Liamas: Because the “language, the nature of

the right, and the ICJ’s interpretation of the treaty

taken separately or together so strongly point to an

intent to confer enforceable rights upon an individ-

ual, I cannot find in the simple fact of the Executive

Branch’s contrary view sufficient reason to adopt the

Government’s interpretation of the Convention.” 126

S. Ct. at 2698 (Breyer, J., dissenting).

23

D. This Case Presents A Favorable Vehicle For

Review Of The Question Presented

This case presents a favorable vehicle for resolv-

ing the question whether Article 36 confers on for-

eign nationals a judicially enforceable right to be in-

formed of the entitlement to consular notification

and communication. Petitioner’s complaint ex-

pressly alleges that respondents failed to inform him

of his right to contact his consulate, in violation of

his rights under Article 36 of the Vienna Convention.

Because petitioner's complaint was dismissed for

failure to state a claim, petitioner’s allegation must

be accepted as true for purposes of review. Erickson,

127 S. Ct. at 2197.

Moreover, the court below ruled against peti-

tioner solely on the ground that Article 36 does not

confer on foreign nationals a judicially enforceable

right to be informed of the their entitlement to con-

sular notification and communication. App. 20a-22a,

35a-36a n.23. The court expressly declined to reach

the question whether, if Article 36 does confer such a

right, petitioner may seek damages under 42 U.S.C.

§ 1983. Id. at 35a-36a n.23. Thus, this case

squarely oresents only the threshold question

whether Article 36 confers on fore*<n nationals a ju-

dicially enforceable right to be informed of their enti-

tlement to consular notification and communication.

There is also nothing to be gained by awaiting

further development in the lower courts. Six circuits

have now issued decisions resolving the question

presented. Those circuits cover the overwhelming

majority of states with a high concentration of for

24

eign-born residents.5 Moreover, those decisions have

thoroughly canvassed all the arguments bearing on

the proper resolution of the question. This Court

should therefore grant review to resolve the impor-

tant threshold question whether Article 36(1) confers

on foreign nationals a judicially enforceable right to

be informed of their entitlement to consular notifica-

tion and communication.

5 See U.S. Census Bureau, The Foreign-Born Population:

2060 at 3 (Dec. 2003), available at http://(www.census.gov/

prod/2003pubs/c2kbr-34.pdf (as of 2000, the five states

with the highest population of foreign-born residents are

California (8.8 million), New York (3.8 million), Texas

(2.8 million), Florida (2.6 million), and Dlinois (1.5 mil-

lion)).

25

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

JON ROMBERG WALTER DELLINGER

Seton Hall University SRI SRINIVASAN

School of Law (Counsel of Record)

Center for Social Justice IRVING L. GORNSTEIN

833 McCarter Highway O’MELVENY & Myers LLP

Newark, NJ 07102 1625 Eye St., N.W.

(973) 642-8700 Washington, D.C. 20006

(202) 383-5300

July 23, 2008

la

APPENDIX A

COURT OF APPEALS OPINION

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2006

(Argued: April 9, 2007 Decided: April 24, 2008

Errata filed: May 12, 2008)

Docket No. 06-0341-pr.

RICARDO A. DE LOS SANTOS MORA,

Plaintiff-Appellant,

Vv.

THE PEOPLE OF THE STATE OF NEW YORK, RICHARD A.

Brown, District Att., FLUSHING QUEENS POLICE

DEPT.,

Defendants-Appellees.

Before: LEVAL, CABRANES, and RAGGI,

Circuit Judges.

Plaintiff, a foreign national who alleges that

defendants violated Article 36 of the Vienna

Convention on Consular’ Relations (“Vienna

Convention”) by failing to notify him that he could

contact his consulate after having been arrested,

appeals from a judgment of the United States

2a

District Court for the Eastern District of New York

(Raymond J. Dearie, Judge) dismissing his

complaint, which sought $1 million in damages

under the Alien Tort Statute (*ATS”). Pursuant to 28

U.S.C. § 1915A, which governs complaints filed by

prisoners in civil actions, the District Court sua

sponte determined that plaintiff failed to state a

claim upon which relief can be granted because

Article 36 does not confer individual rights that can

be enforced in domestic courts. On appeal, plaintiff

argues that the requirement of Article 36 that

States-parties inform an alien of the availability of

consular notification and access creates individual

rights that can be vindicated by an action for

damages not only through the ATS, but also through

42 U.S.C. § 1983 and an implied private right of

action provided for by the Vienna Convention itself.

We conclude, however, that a State-party’s failure to

fulfill its obligation to inform a detained alien of the

prospect of consular notification and _ access,

pursuant to Article 36, cannot form the basis for

such a suit under the ATS, § 1983, or directly under

the Vienna Convention.

Affirmed.

MICHAEL DOVER, JAE LEE! (Irena Nikolic, Jon

Romberg, on the brief), Seton Hall University

School of Law, Center for Social Justice,

Newark, NJ, for Plaintiff-Appellant.

ALAN BECKOFF, Assistant Corporation Counsel

(Michael A. Cardozo, Corporation Counsel of

1 Law students appearing pursuant to Local Rule

46(e).

3a

the City of New York, Leonard Koerner,

Assistant Corporation Counsel, on the brief),

New York City Law Department, New York,

NY, for Defendants-Appellees.

SHARON SWINGLE, Attorney, Appellate Staff, Civil

Division, United States Department of

Justice, Washington, DC (James H. Thessin,

Acting Legal Adviser, United States

Department of State, Washington, DC; Peter

D. Keisler, Assistant Attorney General,

United States Department of Justice,

Washington, DC; Roslynn R. Mauskopf,

United States Attorney, United States

Attorney’s Office for the Eastern District of

New York, Brooklyn, NY; Douglas N. Letter,

Attorney, Robert M. Loeb, Attorney, Appellate

Staff, Civil Division, United States

Department of Justice, Washington, DC, on

the brief), for Amicus the United States in

Support of Defendants-Appellees.

JOSE A. CABRANES, Circuit Judge:

This appeal concerns obligations imposed by

Article 36 of the Vienna Convention on Consular

Relations (“the Vienna Convention” or “the

Convention”), Apr. 24, 1963, [1970] 21 U.S.T. 77,

100-101, T.LA.S. No. 6820. When a national of one

country is detained by authorities in another

country, paragraph 1 of Article 36 imposes several

requirements. Paragraph 1(b) contains’ three

obligations: (1) “the authorities must notify the

consular officers of the detainee’s home country if

the detainee so requests”; (2) any communication to

the consular officials by a detained alien “shall also

4a

be forwarded by the said authorities without delay”;

and (3) the detaining authorities “shall inform the

person concerned without delay of his rights under

this sub-paragraph.” 21 U.S.T. at 101-02. Under

paragraph l(c), consular officials of the state of the

detained alien “shall have the right to visit.” We

consider here the third of the paragraph 1(b)

requirements-the obligation of States-parties to

inform a detained alien of the availability of consular

notification and access.?

For three decades after the ratification of the

Convention by the United States in 1963, it appears

that no claim was asserted that the Convention

generally, or Article 36(1)(b\third) in particular,

conferred rights upon individuals that could be

enforced in our domestic courts, as distinguished

from the customary claims of treaty violations

asserted by and between States-parties in their

international relations. Understandably, a passing

Suggestion by the Supreme Court in Breard uv.

Greene, 523 U.S. 371, 376, 118 S. Ct. 1352 (1998)

2 In Sanchez-Llamas v. Oregon, 548 U.S. 331, —, 126

S. Ct. 2669, 2675 (2006), the Supreme Court referred to

two requirements imposed by Article 36(1)(b) by eliding

the first and second sentences of Article 36. Because the

three sentences of Article 36(1)(b) impose three distinct

sets of obligations, we will refer to them as Art.

36(1)(b)(first) (the detaining authority’s obligation to

notify the detainee’s consulate if the detainee so

requests), Art. 36(1)(b) ‘second) (any communication to

the consular officers by the detainee shall be forwarded

by authorities without delay), and Art. 36(1)(b)(third) (the

detaining authority's obligation to inform a detainee of

- the availability of consular notification and access).

5a

(per curiam), that the Convention “arguably confers

on an individual the right to consular assistance

following arrest,” triggered an outpouring of

conflicting case law on various permutations of the

broad question of whether the Convention confers

upon individuals any rights that can be enforced in

our courts. The particular settings in which this

broad question has arisen are many, and some are

set forth in the margin.? We consider here only the

narrow question of whether a detained alien may

vindicate in an action for damages the failure of the

detaining authority to inform him of the availability

3 Other courts have considered violations of Article 36

in a variety of contexts. See, e.g., Medellin v. Texas, 552

U.S. —, 128 S. Ct. 1346 (2008) (enforcement in state

courts of the judgment of the International Court of

Justice concerning Article 36 violations); Sanchez-Llamas

vu. Oregon, 548 U.S. 331, 126 S. Ct. 2669, (2006)

(suppression of evidence, in habeas corpus proceeding);

Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir.

2007) (claim for damages); Jogi v. Voges, 480 F.3d 822,

835 (7th Cir. 2007) (on petition for rehearing) (claim for

damages); United States v. Emuegbunam, 268 F.3d 377,

388-94 (6th Cir. 2001) (dismissal of indictment and

reversal of conviction); United States v. Jimenez-Nava,

243 F.3d 192, 198 (5th Cir. 2001) (suppression of

statement); United States v. Santos, 235 F.3d 1105, 1106-

08 (8th Cir. 2000) (suppression of confession and reversal

of conviction); United States v. Li, 206 F.3d 56 (1 st Cir.

2000) (en banc) (suppression of confession and dismissal

of indictment). Our own court has considered an

ineffective assistance of counsel claim based on counsel’s

failure to move to dismiss an indictment on the basis of

violations of Article 36. United States v. De La Pava, 268

F.3d 157, 163-66 (2d Cir. 2001).

6a

of consular notification and access.4 For the reasons

set forth below, we conclude that no such action can

be maintained.

4 We hasten to note some of the questions that we

need not, and do not, reach in order to decide the narrow

question presented by this lawsuit. First of all, we have

no occasion here to consider, much less resolve, the

general and difficult question of whether there are any

other circumstances in which courts could entertain an

individual right of action under the Convention. We do

not consider whether a detaining authority’s refusal to

comply with the first set of requirements of Article

36(1)(b)—by refusing to notify the consulate at the request

of the detained alien-would present such circumstances,

see Art. 36(1)(b)(first). We do not consider whether at the

insistence of a detained alien a court may order such a

recalcitrant detaining authority to notify the consulate of

his detention or to send a communication from a detained

alien to his consulate, see Art. 36(1)(b)(first)-(second); or

direct a recalcitrant detaining authority to permit a

consular official to visit a detained alien or otherwise

allow the consular official to communicate with the

detained alien, see id.; or order notification of obligations

owed when a detained alien, who knows that obligations

are owed but does not know exactly what they are, asks

to be informed with specificity, see Art. 36(1)(b)(third).

And finally, we do not consider whether a detaining

authority that gives 7Oautomatic notification to the

consular post of arrested aliens (before asking for the

consent of the detained alien) presents a case in which

courts could entertain an individual action for violations

of the Convention. In identifying questions that we have

not considered here, we underscore that we intimate no

view on the merits of such questions.

Ta

Similar questions have arisen both in the context

of civil suits for damages by foreign nationals, such

as the case presented here, and in the context of

criminal trials and _ postconviction proceedings

involving foreign nationals, see note 3 ante. The

Supreme Court has thus far avoided answering

those questions, see Medellin v. Texas, 552 U.S. —,

—n.4, 128 S. Ct. 1346, 1357 n.4 (assuming, without

deciding, that Article 36 creates judicially

enforceable individual rights); Sanchez-Llamas uv.

Oregon, 548 U.S. 331, —, 126 S. Ct. 2669, 2677-78

(2006) (same), although four Justices have expressed

the view that these questions should be answered in

the affirmative, see id. at 2693-98 (Breyer, J.,

dissenting, joined by Stevens, Souter, & Ginsburg,

JJ.). Our sister Courts of Appeals are split. Compare

Cornejo v. County of San Diego, 504 F.3d 853, 859-64

(9th Cir. 2007) (concluding that Article 36's

obligation to inform aliens of their right to consular

notification does not create judicially enforceable

individual rights), United States v. Emuegbunam,

268 F.3d 377, 391-94 (6th Cir. 2001) (same), and

United States v. Jimenez-Nava, 243 F.3d 192, 196-98

(5th Cir. 2001) (same), with Jogi v. Voges, 480 F.3d

822, 834-35 (7th Cir. 2007) (concluding that Article

36 creates individual rights to be informed of

consular notification and access that can be

vindicated in a private action). And in cases where

the majority did not reach the question, non-majority

opinions reflect similarly divergent conclusions.

Compare United States v. Santos, 235 F.3d 1105,

1109 (8th Cir. 2000) (Beam, J., concurring)

(concluding that Article 36 does not create a

judicially enforceable individual right to be informed

of a right to consular notification upon arrest), and

8a

United States v. Li, 206 F.3d 56, 66-68 (1 st Cir.

2000) (en banc) (Selya & Boudin, JJ., concurring)

(same), with Li, 206 F.3d at 68-76 (Torruella, J.,

concurring in part and dissenting in part)

(concluding that Article 36 creates a judicially

enforceable individual right to be advised about the

prospect of consular assistance).

Our Court has yet to speak definitively on the

question. In United States v. De La Pava, 268 F.3d

157 (2d Cir. 2001), an appeal from a criminal

conviction, we considered whether it was necessary

to vacate a conviction where the defendant argued

that he had received ineffective assistance of counsel

because his lawyer had not moved to dismiss the

indictment on the basis of an alleged violation of

Article 36(1)(b)(third), id. at 163. We determined

that a violation of Article 36’s obligation to inform

aliens of the prospect of consular notification and

access does not provide a basis for the dismissal of

an indictment, and therefore it is not ineffective

assistance of counsel for a lawyer not to request

dismissal on this basis. See id. at 165-66.

We are thus required to consider the thoughtful,

if conflicting, arguments of some of our colleagues

elsewhere in the federal courts. For the reasons

stated below, and in keeping with the apparent

practices of the other States-parties to the

Convention,® we conclude that Article 36’s obligation

5 We requested that amicus the United States provide

us with information regarding the judicial enforcement of

alleged individual rights in the domestic courts of other

States-parties to the Convention. The United States has

informed us that in January 2007, the U.S. Department

9a

to inform detained aliens of the prospect of consular

notification and access cannot, when violated, be

vindicated by a private action for damages filed in

our courts. We find that the text of the Vienna

Convention and its context make clear that Article

36(1)(b\(third) does not afford detained aliens with

individual rights that they can assert through such

litigation. Interpretive principles, such as_ the

presumption that treaties do not create privately

enforceable rights in the absence of express language

to the contrary, counsel against such an

of State surveyed U.S. embassies worldwide, asking “can

an individual sue in court if he or she did not receive

consular notification and/or access?” Amicus’s May 11,

2007 Supp. Letter Br. 2. The State Department received

96 responses, representing 91 of the 170 countries party

to the Convention. “With one possible exception,” the

State Department was unable to identify any country in

which an individual litigant could sue for money damages

for violation of the consular notification and access

provisions in Article 36. Jd. And “with a handful of

possible exceptions,” no other country’s courts “have

construed the consular notification requirements of the

Convention to create privately enforceable individual

rights.” Id. Moreover, although the governments of 36

countries, acting as amici in a companion case to

Sanchez-Liamas, expressed the view that Article 36

creates judicially enforceable individual rights to be

informed of the prospect of consular notification and

access, they did not identify any statutory authority or

administrative or judicial proceedings in their own

countries affording individuals the rights they assert are

available to detained aliens in the courts of the United

States. Id. at 2 n.3.

10a

interpretation here. See Medellin, 552 U.S. at — n.3,

128 S. Ct. at 1357 n.3 (collecting cases in the court of

appeals acknowledging such a_ presumption).

Pursuant to the instructions of the Supreme Court

with respect to the deference owed to the views of

the Executive on issues of treaty interpretation, we

accord “great weight,” Sumitomo Shoji Am., Inc. v.

Avagliano, 457 U.S. 176, 184, 102 S. Ct. 2374 (1982),

to the settled view of the Executive under successive

national administrations. See Li, 206 F.3d at 63

(noting in 2000, during the Clinton Administration,

the view of the Executive that the Vienna

Convention does not create individual rights); id. at

63-64 (charting the views of the Executive since

1970); see also Amicus’s Br. 5; note 28 post. Finally,

the views of the International Court of Justice

(“ICJ”) on this issue do not persuade us otherwise.

We further conclude that plaintiffs claims for

violation of Article 36(1)(b)(third) do not give rise to

a cause of action under the Alien Tort Statute.

The judgment of the United States District Court

for the Eastern District of New York (Raymond J.

Dearie, Judge), which dismissed plaintiff-appellant’s

complaint pursuant to 28 U.S.C. § 1915A® for failure

6 Section 1915A states that a district court “shall

review, before docketing, if feasible or, in any event, as

soon as practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a

governmental entity or officer or employee of a

governmental entity.” 28 U.S.C. § 1915A (a). The court

“shall identify cognizable claims or dismiss the complaint,

or any portion of the complaint, if the complaint .. . fails

to state a claim upon which relief may be granted.” Id. §

1915A(b). At all times relevant to the procedural history

lla

to state a claim upon which relief can be granted, is

therefore affirmed.

BACKGROUND

ien nvention

The Vienna Convention is the product of the

United Nations Conference on Consular Relations

(“the Conference”), which met in the capital of

Austria in March and April of 1963. Working from a

draft prepared by the _ International Law

Commission,’ representatives from the governments

of 92 countries, including the United States, came

together to draft the final document. See generally

Luke T. Lee, Vienna Convention on Consular

Relations 15-18 (1966). One commentator has noted

that, “jaJs the first conference of this kind

participated in by states from all parts of the world,

it hed to strve toward as broad an area of

agreement as possible, acceptable to states old and

new, whatever their political and economic systems.”

Id. at 16. The President of the United States, upon

the advice and consent of the Senate, ratified the

of the instant case, plaintiff was (and continues to be) an

inmate in the custody of the Federal Bureau of Prisons as

the result of a more recent conviction than the one

involved in the instant case.

’ The International Law Commission, which is

“charged with the task of codifying and developing

international law,” was established by the General

Assembly of the United Nations in 1947. See generally 1

Oppenheim’s International Law 103-10 (Sir Robert

Jennings & Sir Arthur Watts eds., 9th ed. 1996).

12a

Convention in 1969. 21 U.S.T. at 77. As of 2006, 170

countries were party to the Conveniion. Sanchez-

Llamas, 126 S. Ct. at 2674.

The Vienna Convention consists of a preamble

and 79 articles. Article 36, which “concerns consular

officers’ access to their nationals detained by

authorities in a foreign country,” id. at 2675, states

in full:

1. With a view to facilitating the exercise of

consular functions relating to nationals of the

sending State:

(a)consular officers shall be _ free_ to

communicate with nationals of the sending

State and to have access to them. Nationals of

the sending State shall have the same freedom

with respect to communication with and access

to consular officers of the sending State;

(b) if he so requests, the competent authorities

of the receiving State shall, without delay,

inform the consular post of the sending State if,

within its consular district, a national of that

State is arrested or committed to prison or to

custody pending trial or is detained in any

other manner. Any communication addressed

to the consular post by the person arrested, in

prison, custody or detention shall also be

forwarded by the said authorities without

delay. The said authorities shall inform the

person concerned without delay of his rights

under this sub-paragraph;

(c) consula officers shall have the right to

visit a national of the sending State who is in

prison, custody or detention, to converse and

13a

correspond with him and to arrange for his

legal representation. They shall also have the

right te visit any national of the sending State

who is in prison, custody or detention in their

district in pursuance of a judgment.

Nevertheless, consular officers shall refrain

from taking action on behalf of a national who

is in prison, custody or detention if he

expressly opposes such action.

2. The rights referred to in paragraph 1 of

this Article shall be exercised in conformity

with the laws and regulations of the receiving

State, subject to the proviso, however, that the

said laws and regulations must enable full

effect to be given to the purposes for which the

rights accorded under this Article are

intended.

21 U.S.T. at 101-02 (emphasis added). Paragraph 2

of Article 36 is said to “provide[ ] guidance regarding

how these requirements, and the other requirements

of Article 36, are to be implemented.” Sanchez-

Llamas, 126 S. Ct. at 2675.

In addition to the Convention itself, the

President, upon the consent of the Senate, ratified

the Optional Protocol Concerning the Compulsory

Settlement of Disputes (“the Optional Protocol” or

“Protocol”), Apr. 24, 1963, [1970] 21 U.S.T. 325,

T.LA.S. No. 6820. The Protocol states that (1) the

ICJ has “compulsory jurisdiction” over “[dlisputes

arising out of the interpretation or application of the

Convention” 8 and (2) accordingly, any State-party to

8 As we explained in Flores v. S. Peru Copper Corp.,

414 F.3d 233, 250 n.24 (2d Cir. 2003):

l4a

the Protocol may bring such a dispute before the

ICJ. Id. at 326. The United States withdrew from

the Protocol in 2005.9 Sanchez-Llamas, 126 S. Ct. at

2675.

The International Court of Justice (“ICJ”) is a

multinational body charged with discerning and

applying international law. Under the Charter of

the United Nations, “[aJll1 Members of the United

Nations [including the United States] are ipso

facto parties to the Statute of the International

Court of Justice.” Charter of the United Nations,

59 Stat. 1033, 1051, T.S. No. 993 (1945), Art. 93

(effective Oct. 24, 1945).

The United States Senate consented to the

Charter of the United Nations on July 28, 1945, 91

Cong. Rec. 8185, 8190 (1945), causing the United

States to be a party to the Statute of the ICJ. The

Senate famously conditioned its adoption of

President Truman’s Declaration that the United

[S]tates would accede to the compulsory

jurisdiction of the ICJ with the Connally

Reservation, which permits the United States to

opt out of the jurisdiction of the ICJ over a

particular dispute if [it] determines that the

dispute is domestic in nature and that its domestic

jurisdiction applies. See Acceptance of Compulsory

Jurisdiction of the International Court of Justice,

92 Cong. Rec. 10,694-97 (1946); Dep’t State Bull.,

Sept. 1946, at 452-53.

®° The international legal consequences of a State-.

party’s unilateral withdrawal from a treaty that has no

explicit withdrawal provision, such as the Optional

Protocol, is a complicated and unsettled question. See

generally, W. Michael Reisman & Mahnoush H.

Arsanjani, No Exit? A Preliminary Examination of the

15a

B. Facts and Procedural History of the Instant Case

The following facts are taken from the pro se

complaint filed in the District Court by plaintiff-

appellant Ricardo A. De Los Santos Mora

(“plaintiff”). We accept these facts as true for the

purposes of this appeal and draw all inferences in

plaintiffs favor. See, e.g., McInerney v. Rensselaer

Polytechnic Inst. , 505 F.3d 135, 138 (2d Cir. 2007).

Plaintiff is a currently incarcerated native and

citizen of the Dominican Republic who entered the

United States in 1991. In 1992, he was arrested in

Queens, New York, and charged with attempted

robbery in violation of New York State law.

According to plaintiffs allegations, he did not speak

English at the time of his arrest, and the arresting

officers did not speak Spanish. He was interrogated

without an interpreter present, although he told

police in Spanish that he did not understand and

wanted to speak with somebody in Spanish. After

appearing before a judge, plaintiff was appointed

counsel who did not speak Spanish. Plaintiff was

then, according to his allegations, “coerced into

taking a plea without the benefit of an interpreter.”

He was sentenced to six months’ incarceration and

five years’ probation. The arresting officers and the

prosecutor knew that plaintiff was a citizen of the

Dominican Republic but never advised him that he

Legal Consequences of the United States’ Notification of

Withdrawal from the Optional Protocol to the Vienna

Convention on Consular Relations, in Promoting Justice,

Human Rights and Conflict Resolution Through

International Law 897 (Marcelo G. Kohen ed., 2007). We

need not address it here.

16a

could request legal assistance from the Dominican

consulate.

On December 5, 2005, plaintiff, who is

represented by counsel on appeal, filed a pro se

complaint under the Alien Tort Statute (“ATS”). 1°

Plaintiffs complaint alleges that defendants-

appellees Queens County District Attorney and New

York City Police Department (jointly, “defendants”)1!

violated Article 36 of the Vienna Convention by

failing to inform him that he could contact the

Dominican consulate. It also claims that “[t]he

outcome of Plaintiff[‘s] case would have been

different if [he] would {have] known of his Vienna

Convention rights,” and that “serious error by the

arresting officers and District Attorney caused [sic]

(him] his freedom.” As relief, plaintiff requested $1

million.!2 Shortly after filing his complaint, plaintiff

requested permission to proceed in forma pauperis.

10 The ATS, sometimes referred to as the Alien Tort

Claims Act, provides that “[t}he district courts shall have

original jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of nations or a

treaty of the United States.” 28 U.S.C. § 1350.

11 Plaintiff referred to the New York City Police

Department as “Flushing Queens Police Department” in

his complaint.

12 Plaintiff has filed similar complaints in other

federal courts. In November 2005, he brought suit in the

United States District Court for the Eastern District of

Virginia, alleging violations of the Vienna Convention in

connection with a 1997 conviction for drug trafficking.

The District Court in that case concluded that a judgment

in plaintiffs favor would necessarily imply the invalidity

of his conviction; it therefore dismissed the complaint

pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.

2364 (1994) (holding that plaintiffs conviction must be

declared invalid before plaintiff can proceed with a claim

for damages based on the unlawful conviction). See De

Los Santos-Mora v. Bradenham, 194 Fed. App’x 100, 101

(4th Cir. 2006). The Fourth Circuit vacated the District

Court’s judgment on the basis that plaintiffs suit was not

“Heck-barred” because Article 36 “does not implicate any

right to consular intervention or cessation of the criminal

investigation and .. . violation of any rights under Article

36 would not trigger application of the exclusionary rule.”

Id. In January 2006, plaintiff brought suit in the United

States District Court for the District of Delaware,

alleging violations of the Vienna Convention in

connection with a 1995 arrest and 1996 acquittal on drug

trafficking charges. The District Court in that case

declined to address whether Article 36 creates individual

rights. Rather, it dismissed plaintiffs complaint for

failure to state a claim upon which relief can be granted,

observing that plaintiff could not show either “causation

or damages” because (1) Article 36 does not guarantee

any consular assistance, (2) plaintiff enjoyed the

protections of the Due Process Clause, and (3) plaintiff

was found “not guilty” by a jury. See De Los Santos Mora

v. Brady, No. 06-46 -JJF, 2007 WL 981605, at *4 (D. Del.

Mar. 30, 2007). Because we conclude that Article 36 does

not confer upon plaintiff an individual right that he can

enforce in the instant case, we take no view on whether

his suit would be barred under Heck or whether he would

be able to pursue claims for nominal damages in the

event he cannot show a causal connection between his

New York conviction and the alleged violations of Article

36.

18a

In a memorandum and order entered on

December 30, 2005, the District Court granted

plaintiffs request to proceed in forma pauperis.

However, the District Court sua sponte dismissed

plaintiffs complaint for failure to state a claim upon

which relief can be granted pursuant to 28 U.S.C. §

1915A, concluding that “[t]he Vienna Convention

was meant to protect the rights of states to care for

their nationals traveling abroad, not to protect the

rights of individuals.” 13 Final judgment was also

entered on December 30, 2005. Plaintiff timely

appealed. On appeal, plaintiff, now represented by

counsel, argues that Article 36 confers upon him

individual rights that he may enforce, not only under

the ATS, but also under 42 U.S.C. § 198314 and

pursuant to an implied private right of action

created by the Vienna Convention itself.

13 The District Court also commented that a violation

of the Vienna Convention does not support dismissing an

indictment or vacating a sentence, conclusions that we

need not address in our consideration of the availability

of a claim for money damages.

14 In relevant part, 42 U.S.C. § 1983 provides that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress... .

19a

DISCUSSION

This appeal requires us to consider whether an

alien may bring an action seeking damages for the

alleged violation of Article 36(1)(b)\(third)-that is, the

obligation of States-parties to inform a detained

alien of the availability of consular notification and

access-directly under the Vienna Convention or

pursuant to § 1983 or the ATS. We conclude that

Article 36(1\b)(third) does not provide for rights that

can be vindicated through such litigation.

In the Head Money Cases, 112 U.S. 580, 5 S. Ct.

247 (1884), the Supreme Court summarized the

basic relationship between treaties and individual

rights. “A treaty,” the Court explained, “is primarily

a compact between independent nations.” Jd. at 598,

5 S. Ct. 247. As such, “[iJt depends for the

enforcement of its provisions on the interest and the

honor of the governments which are parties to it.” /d.

Treaty violations, therefore, are “the subject of

international negotiations and reclamations, so far

as the injured party chooses to seek redress.”

Id.”(W)ith all this the judicial courts have nothing to

do and can give no redress.” Jd. However, “a treaty

may also contain provisions which confer certain

rights upon the citizens or subjects of one of the

nations residing in the territorial limits of the other,

which partake of the nature of municipal [i.e.,

domestic] law, and which are capable of enforcement

as between private parties in the courts of the

country.” Id. The Supremacy Clause of the United

States Constitution, U.S. Const. art. VI, cl. 2,4

15 The Supremacy Clause provides in full:

20a

“places such provisions .. . in the same category as

other laws of [Clongress.” Head Money Cases, 112

U.S. at 598, 5 S. Ct. 247. Thus, “[a] treaty, then, is a

law of the land as an act of [(Clongress is, whenever

its provisions prescribe a rule by which the rights of

the private citizen or subject may be determined.” Jd.

at 598-599, 5 S. Ct. 247. “And when such rights are

of a nature to be enforced in a court of justice, that

court resorts to the treaty for a rule of decision for

the case before it as it would a statute.” Jd. at 599, 5

S. Ct. 247.

Whether a treaty creates a right in an individual

litigant that can be enforced in domestic proceedings

by that litigant is for the court to decide as a matter

of treaty interpretation. See Garza v. Lappin, 253

F.3d 918, 924 (7th Cir. 2001) (“Whether a particular

international agreement provides for private

enforcement is a matter for judicial interpretation of

the agreement.”); Restatement (Third) of the Foreign

Relations Law of the United States (“Restatement

(Third)”) § 907 cmt. a (1987) (“Whether an

international agreement provides a right or requires

that a remedy be made available to a private person

is a matter of interpretation of the agreement.”).!® It

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be 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, any Thing in

the Constitution or Laws of any State to the

Contrary notwithstanding.

16 This inquiry is distinct from whether a treaty is

“self-executing.” Restatement (Third) § 111 cmt. h. “[N]Jot

Z2la

is our task in the instant case to determine whether

the requirement that a detaining authority inform

all international law obligations automatically constitute

binding federal law enforceable in United States courts.”

Medellin, 552 U.S. at —, 128 S. Ct. at 1355. “Self-

executing treaties do not require implementing

legislation and become effective as domestic law

immediately upon entry into force. Non-self-executing

treaties do not become effective as domestic law until

implementing legislation is enacted.” JTC Ltd. v.

Punchgini, Inc., 482 F.3d 135, 161 n.21 (2d Cir. 2007); see

also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)

(Marshall, C.J.) (“Our constitution declares a treaty to be

the law of the land. It is, consequently, to be regarded in

courts of justice as equivalent to an act of the legislature,

whenever it operates of itself without the aid of any

legislative provision. But when the terms of the

stipulation import a contract, when either of the parties

engages to perform a particular act, the treaty addresses

itself to the political, not the judicial department; and the

legislature must execute the contract before it can become

a rule for the Court.”), overruled in part on other grounds,

United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). In

other words, “[t}he label ‘self-executing’ usually is applied

to any treaty that according to its terms takes effect upon

ratification and requires no separate implementing

statute. Whether the terms of such a treaty provide for

private rights, enforceable in domestic courts, is a wholly

separate question.” United States v. Li, 206 F.3d 56, 67

(1st Cir. 2000) (en banc) (Selya & Boudin, JJ., concurring)

(citation omitted).

The Supreme Court has declined to resolve whether

the Vienna Convention is self-executing. See Medellin,

552 U.S. at — n.4, 128 S. Ct. at 1357 n.4. The parties

have not raised this question, and we need not decide it

here.

22a

an alien of the prospect of consular notification and

access set forth in Article 36(1)(bXthird) of the

Vienna Convention crosses the boundary between

possible benefits to individuals secured by States

and State officials and rights conferred directly upon

individuals that are assertable, in a private action

brought directly under the Convention itself or

pursuant to § 1983 or the ATS, by the individuals

themselves in our courts of law.

A. An Alien Cannot Vindicate in an Action for

Damages a Violation of Article 36’s Obligation to

Inform Aliens of the Prospect of Consular

Notification and Access,

1. Text and Context

“(T]he main task of any tribunal which is asked

to apply or construe or interpret a treaty” is to “give[

] effect to the expressed intention of the parties, that

is, their intention as expressed in the words used by

them in the light of the surrounding circumstances.”

Lord McNair, The Law of Treaties 365 (1961). It is

thus a weli-established principle that a court

interpreting a treaty “begin[s] with the text of the

treaty and the context in which the written words

are used.” United States v. Cuevas, 496 F.3d 256, 263

(2d Cir. 2007) (quoting Société Nationale Industrielle

Aérospatiale v. U.S. Dist. Ct. for the S. Dist. of Iowa,

482 U.S. 522, 534, 107 S. Ct. 2542 (1987)) (internal

quotation marks omitted).

The text of Article 36 certainly requires that the

authorities of a “receiving State” (that is, the

detaining State) take certain actions with respect to

the nationals of a “sending State” (that is, the

detainee’s home State). For example, paragraph 1(b)

23a

of Article 36 provides that if a detained individual of

foreign citizenship so requests, the detaining

authorities must alert the individual’s home

consulate of the detention, see Art. 36(1)(b)first);

moreover, the authorities must inform the detained

individual that he can contact his home consulate,

see Art. 36(1)(b\(third). 21 U.S.T. at 101. And at

least some of these requirements are explicitly

referred to as “rights” of the individual foreign

nationals. Paragraph 1(b) instructs the detaining

authorities to inform the foreign national “without

delay of his rights under this sub-paragraph,” Art.

36(1b)\(third), and paragraph 2 _ contains

instructions for the implementation of the “rights

referred to in paragraph 1.” 21 U.S.T. at 101.

It is notable, however, that the critical

requirement at issue in the instant case—a receiving

State’s obligation to inform a detained foreign

national of his “rights” under paragraph 1(b)—is.

never itself expressly referred to as a “right.”

Moreover, the text of the Convention is entirely

silent as to whether private individuals can seek

redress for violations of this obligation—or any other

obligation set forth in Article 36—in the domestic

courts of States-parties. Of course, whether an

individual right exists and how that right may be

enforced by the individual are different questions.

Nevertheless, we think that the lack of any mention

in the text of Article 36(1) (b) as to whether or how

detained foreign nationals might vindicate their

asserted rights at least suggests that the drafters of

the Convention did not intend to confer rights

directly upon individuals. Cf page 25-26 post

(noting treaties that expressly provide for individual

24a

judicial remedies).!7 The language of Article 36 is

set forth in a document that “is primarily a compact

between independent nations,” although it “may also

contain provisions which confer certain rights upon”

individuals, Head Money Cases, 112 U.S. at 598, 5S.

Ct. 247 (emphasis added). But “[nlothing in [the

treaty’s] text explicitly provides for judicial

enforcement of [its] consular access provisions at the

behest of private litigants,” Li, 2u6 F.3d at 66 (Selya

& Boudin, JJ., concurring), or, for that matter,

creates a right to be informed of the prospect of

consular access and notification that can be privately

vindicated directly under the Vienna Convention or

pursuant to § 1983.

Moreover, we have observed that the vocabulary

of “individual rights” may be used to refer to certain

potential benefits provided by treaty that do not

actually create rights enforceable by the individuals

benefitted. See United States ex rel. Lujan uv.

Gengler, 510 F.2d 62, 67 (2d Cir. 1975). As Judges

Selya and Boudin explained in their concurring

opinion in Li:

Of course, there are references in the

[Convention] to a “right” of access, but these

17 Indeed, the Vienna Convention elsewhere provides

for remedies for violations of specific Articles, albeit

remedies of States rather than of individuals. See Vienna

Convention, Art. 23(2), 21 U.S.T. at 92 (providing a

remedy to receiving States for a sending State’s failure to

recall a consular official deemed a persona non grata);

Art. 31, 21 U.S.T. at 97 (providing for compensation to a

State upon the expropriation of consular premises by the

receiving State).

25a

references are easily explainable. The

contracting States are granting each other

rights, and telling future detainees that they

have a “right” to communicate with their

consul is a means of implementing the treaty

obligations as between States.

Li, 206 F.3d at 66 (Selya & Boudin, JJ., concurring)

(emphasis in original). Indeed, even with respect to

statutes, the Supreme Court has on _ several

occasions rejected the argument that references to

the “rights” of persons potentially benefitted by

legislation (appearing both in text and legislative

history) necessarily support the view that the

legislation creates rights in individuals that can be

enforced by those individuals through mechanisms

such as a § 1983 action or an implied private right of

action. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273,

289 n.7, 122 S. Ct. 2268 (2002); Pennhurst Siate Sch.

& Hosp. v. Halderman, 451 U.S. 1, 18-20, 101 S. Ct.

1531 (1981). Similarly, the isolated language of

Article 36(1b) is at most ambiguous as to the

existence of rights that can be privately vindicated in

court in the manner sought by plaintiff. Thus, in

accordance with the Fifth and Sixth Circuits, as well

as Judges Selya and Boudin of the First Circuit, we

conclude that the requirement that an alien be

informed of consular notification and access in

Article 36(1)(bXthird), even taken in conjunction

with the several references to “rights,” does not

establish a right in the alien that can be vindicated

in a damages action for failure to inform the alien of

the obligation. See Emuegbunam, 268 F.3d at 391-

94; Jimenez-Nava, 243 F.3d at 196-98; Li, 206 F.3d

at 66-68 (Selya & Boudin, JJ., concurring).

26a

~Several additional textual and _ contextual

considerations militate against construing Article

36’s obligation to inform an alien of the prospect of

consular notification and access. as_ creating

individual rights that, when violated, can be

vindicated through private litigation brought

directly under the Convention or pursuant to § 1983.

For example, the first clause of paragraph 1 of

Article 36 begins with the following statement of

purpose: “[w]ith a view to facilitating the exercise of

consular functions relating to nationals of ihe

sending State.” 21 U.S.T. at 100. Plaintiff argues

that individual enforcement of the Vienna

Convention may aid sending States in the exercise of

their consular functions. However, the introductory

language of Article 36 emphasizes the exercise of

these functions, rather than an individual’s ability to

benefit from these functions-giving rise to ambiguity

as to whether the provisions that follow create

entirely independent individual rights that may be

vindicated by lawsuits in our courts.

The Preamble to the Convention also favors

defendants’ position.18 It bears underscoring that a

18 The Preamble to the Vienna Convention on

Consular Relations reads in full:

The States Parties to the present Convention,

Recalling that consular relations have been

established between peoples since ancient times,

Having in mind the Purposes and Principles of

the Charter of the United Nations concerning the

sovereign equality of States, the maintenance of

international peace and security, and_ the

promotion of friendly relations among nations,

27a

preamble is not without meaning’ under

international law. It provides valuable context for

understanding the terms of a treaty. See Vienna

Convention on the Law of Treaties, art. 31(2), opened

for signature May 23, 1969, 1155 U.N.T-.S. 331, 340

(providing that “(tlhe context for . .. purposels] of...

interpret[ing] .. .a treaty shali comprise .. . the

text, including its preamble and annexes,” as well as

other related agreements (emphasis added)).*9

Considering that the United Nations

Conference on Diplomatic Intercourse and

Immunities adopted the Vienna Convention on

Diplomatic Relations which was opened for

signature on 18 April 1961,

Believing that an international convention on

consular relations, privileges and immunities

would also contribute to the development of

friendly relations among nations, irrespective of

their differing constitutional and social systems,

Realizing that the purpose of such privileges

and immunities is not. to benefit individuals but to

ensure the efficient performance of functions by

consular posts on behalf of their respective States,

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. ...

21 U.S.T. at 79 (footnotes omitted).

19 Although the United States has not ratified the

Vienna Convention on the Law of Treaties, our Court

relies upon it “as an authoritative guide to the customary

international law of treaties,” insofar as it reflects actual

28a

The parties focus on the language in paragraph

five of the Preamble stating that “the purpose of

such privileges and immunities is not to benefit

individuals but to ensure the efficient performance of

functions by consular posts on behalf of their

respective States.” Defendants and amicus the

United States argue that this language is evidence

that the Convention is not meant to confer rights on

individuals. Defs.’ Br. 7; Amicus’s Br. 7-8. Plaintiff,

pointing out that the preceding clause in paragraph

four of the Preamble specifies that the “privileges

and immunities” mentioned are “consular,” argues

that paragraph 5’s language “has no bearing on the

existence of rights assertedly granted to private

individuais by specific articles of the treaties, but

rather refers to benefits attaching to consular or

diplomatic officers as a result of their status as

officials representatives of a foreign State.” Pl.’s

Supp. Reply Br. 2. In other words, according to

plaintiff, the Preamble “merely set{s] forth the long-

standing principle that the intent of granting

privileges and immunities to oficial representatives

of foreign States is not to benefit those individuals

personally, but rather to further the amicable

relations between the receiving State and the

sending State ....” 7d. at 3 (emphasis added).

state practices. See Avero Belgium Ins. v. American

Airlines, Inc., 423 F.3d 73, 79 & n.8 (2d Cir. 2005). The

Department of State considers the Vienna Convention on

the Law of Treaties an authoritative guide to current

treaty law and practice. Jd. at 79 n.8.

29a

Even if the Preamble cannot be read as explicitly

or categorically rejecting the creation of rights in

private individuals, it certainly reflects the broader

principle that the Convention is concerned primarily,

if not exclusively, with establishing relationships

and rights as between States and State offivials.2° By

referring only to “consular relations, privileges and

immunities,” the Preamble suggests that any

relations, privileges, or immunities the Convention

creates are strictly those of consular officials. 2}

20 Indeed, this seems to have been the understanding

of the United States at the time that the Vienna

Convention was ratified. The report prepared by the

Senate Committee on Foreign Relations (the

“Committee”) recommending that the Senate give its

advice and consent to ratification of the Convention and

Protocol understood Articles 28 to 57 to be about

“[clonsular facilities, privileges and immunities of

consular officers and other members of a consular post.”

S. Exec. Rep. No. 91-9 at 2 (1969). This understanding

was based in part on testimony from the Deputy Legal

Adviser for Administration that “the particular virtue of

this Convention lies in its establishment of a basic

standard of treatment for consular posts and their

personnel throughout the world. . . .” Jd. at 8 (emphasis

added); see also id. at 6 (“{T]he Convention .. . goes very

far toward clarifying the obligations of states concerning

the treatment to be accorded foreign consular posts and

their personnel. Because of its definite rules and

procedures, the Convention should reduce the possibility

of misunderstanding between governments in this area of

their relations.”).

21 To the extent plaintiffs argument suggests that, as

a general matter, the Convention treats “rights”

differently from “privileges and immunities,” we disagree.

30a

Moreover, the Preamble declares that’ the

overarching aim of the Convention is to “contribute

to the development of friendly relations among

nations.” 21 U.S.T at 79 (emphasis added). The

motivating principles of the Convention as stated in

the Preamble are clearly principles governing the

relations of States inter se-concern for the “sovereign

equality of States, the maintenance of international

peace and security, and the promotion of friendly

relations among nations.” Jd. These passages

suggest that the rights created by the Convention

similarly belong to, and should generally be enforced

by, the States-parties to the Convention and their

official representatives.

The Optional Protocol likewise reinforces the

view that Article 36(1)(b\(third) does not create

rights in an individual that can be vindicated

through an action for damages. Although expressly

designed to implement the terms of the Convention,

it makes no mention of private actions by detained

individuals. Rather, Article I of the Protocol provides

If the consular “privileges and immunities” referred to in

the Preamble are distinct from any consular “rights”

referred to later in the Convention, then those consular

“rights” would not be subject to the preambular limitation

on providing benefits to individuals, rather than to

consular officers in their official capacity. Plaintiffs view

has been explicitly rejected by the Supreme Court. See

Breard, 523 U.S. at 378, 118 S. Ct. 1352 (“Any rights that

the Consul General might have by virtue of the Vienna

Convention exist for the benefit of Paraguay, not for him

as an individual.”).

3la

that “[djisputes arising out of the interpretation or

application of the Convention shall lie within the

compulsory jurisdiction of the [ICJ] and may

accordingly be brought before the [ICJ] by an

application made by any [State-]party to the dispute

being a Party to the present Protocol.” 21 U.S.T. at

326.

The lack of individual rights that can be

vindicated through a private action for damages does

not deprive Article 36 of force for at least four

reasons. First, states-parties can safeguard the

rights in the Convention (and protect their

nationals) through “negotiations and reclamations.”

See Head Money Cases, 112 U.S. at 598, 5S. Ct. 247.

Second, the reciprocal nature of the Vienna

Convention provides receiving states with a natural

incentive to comply with its terms.” For instance,

22 The United States, in a brief signed by the

Department of State and the Department of Justice,

informs us that federal authorities in the United States

have undertaken extensive efforts to raise awareness of,

and secure adherence to, the terms of the Convention at

all governmental levels, notwithstanding the lack of any

successful civil suits by individuals seeking to enforce

Article 36. We note several examples of these efforts here:

Beginning in 1970, the State Department sent letters to

the governors of all 50 states, “advising them that the

Convention had entered into force and reviewing its

requirements.” Amicus’s May 11, 2007 Supp. Letter Br. 6.

In addition, “State Department officials attended

conferences of law enforcement officials, . . . published

articles in law enforcement magazines[,) ... and

conducted periodic mass mailing to major U.S. cities” in

an effort to publicize the requirements of Article 36. Id.

Since 1998, State Department personnel have conducted

32a

approximately 454 training events on Article 36

throughout the United States and its territories. Jd. at 3

(citing http://travel.state.gov/law/consular/consular_3139

-html). In 1998, the State Department published and

widely circulated a manual entitled Consular Notification

and Access: Instructions for Federal, State, and Local

Law Enforcement Officials Regarding Foreign Nationals

in the United States and the Rights of Consular Officials

To Assist Them. Id. at 4. The Department has also made

efforts to incorporate the requirements of Article 36 into

the training curricula and accreditation standards of law

enforcement agencies. Jd. at 4. Furthermore, in its

representations to the ICJ, the United States stated that

the federal judiciary has been “enlisted” directly to help

with Treaty compliance, and further that the “United

States affirmatively encourages judicial authorities to

ensure that consular notification requirements have been

complied with, and some states have placed the obligation

of providing or confirming consular information on their

magistrates.” Declaration of Ambassador Maura A.

Harty, Annex 4 to Counter-Memorial of the United States

at All, | 28, Case Concerning Avena and other Mexican

Nationals (Mex.v.U.S.), 2004 1.C.J. No. 128 (Oct. 25,

2003); Counter-Memorial of the United States at 110,

Case Concerning Avena and other Mexican Nationals

(Mex.v.U.S.), 2004 I.C.J. No. 128 (Nov. 3, 2003). In

addition, regulations govern compliance with Article 36

on the part of federal law enforcement officials. Id. at 9

(citing 28 C.F.R. § 50.5 (Department of Justice); 8 C.F.R.

§ 236.1(e) (Department of Homeland Security); and 28

C.F.R. § 540.45(b) (Bureau of Prisons)). Some states too

have passed laws enacting the substance of Article 36.

See, e.g., Cal.Penal Code § 834c(a) (1) ( “In accordance

with federal law and the provisions of this section, every

peace officer, upon arrest and booking or detention for

more than two hours of a known or suspected foreign

national, shall advise the foreign national that he or she

33a

the United States, in an action brought by the

federal government, can sue state and _ local

governments to ensure compliance. See Amicus’s

has a right to communicate with an official from the

consulate of his or her country .. .”).

The United States also informs us that many of its

compliance efforts have been directed toward New York

City. The State Department has distributed hundreds of

pocket reference cards and training videos to state and

local law enforcement entities in the City, and has

provided training sessions anc briefings for law

enforcement officials on a number of occasions. Jd. at 7-8.

With respect to the policies and practices of New York

City law enforcement authorities themselves, defendants

and the United States have informed us that the New

York City Police Department’s Patrol Guide sets forth

procedure No. 208-56, which governs the processing of the

arrests of foreign nationals and requires that certain

consulates be notified if one of their nationals is arrested

and that nationals from other countries be informed that

they may contact their consulates. The New York City

Department of Corrections maintains a similar procedure

for foreign nationals in custody. These basic requirements

are not significantly different from those in place when

defendant was arrested in 1992. Defs.’ Apr. 18, 2007

Letter 2; Amicus’s May 11, 2007 Supp. Letter Br. 8. The

NYPD’s Police Student’s Guide explains these

requirements, and the City holds seminars for law

enforcement officials on the Convention’s consular

notification provisions. Amicus’s May 11, 2007 Supp.

Letter Br. 8 (citing http:/Awww.nyc.gov/html/unccp/htm)/

consular/special_ events.shtml).

34a

May 11, 2007 Supp. Letter Br. at 10 (“[T]he federal

government is empowered to require that state or

local law enforcement officials who detain foreign

nationals do so in accordance with the substantive

restrictions set out in the Convention.”); see also

Brief for United States, as Amicus Curiae

Supporting Respondents at 15, Sanchez-Llamas uv.

Oregon, 548 U.S. 331, 126 S. Ct. 2669 (2006), 2006

WL 271823, at *15 (“Under longstanding principles,

the United States could bring an action in court to

enforce compliance with a treaty obligation.”) (citing

Sanitary Dist. v. United States, 266 U.S. 405, 425-26,

45 S. Ct. 176 (1925) (Holmes, J.)). Third, the lack of

any privately enforceable right to damages for a

violation of Article 36(1\b\third) may not foreclose

the possibility that a domestic court, having

established that an arrested alien is a foreign

national, might inquire whether he has been

informed that he may contact his consulate and

fulfill the obligation to inform him. Fourth, a

detained alien may be able to petition officials of a

detaining authority, including where appropriate the

courts, to comply with the obligations set forth in

Article 36. These mechanisms might not always

result in outcomes fully satisfactory to the offended

State, but failure to secure optima! compliance or

relief does not deprive a treaty provision of meaning

any more than, for example, a judgment for nominal

damages makes a statute meaningless.

We also reject the argument that plaintiffs

inability to recover damages for the alleged violation

of Article 36(1)(b\third) is incompatible with

paragraph 2 of Article 36, which requires that the

laws and regulations of States-parties “enable full

35a

effect to be given to the purposes for which the rights

accorded under this Article are intended.” 21 U.S.T.

at 102. In Sanchez-Llamas, the Supreme Court,

assuming arguendo the existence of individual rights

under Article 36, considered the claim that applying

procedural default rules to such rights would deny

Article 36 “full effect.” 23 The Court explained its

rejection of this claim as follows:

23 In Sanchez-Llamas, the Court “assumled], without

deciding,” that Article 36 created a judicially-enforceable

right to consular notification and access but concluded

that an exclusionary remedy was inappropriate for

violation of rights conferred by the Vienna Convention.

548 U.S. at -—, 126 S. Ct. at 2677-78; see also Medellin,

552 U.S. at — n.4, 128 S. Ct. at 1357 n.4 (same). This

approach-to “assume without deciding” that the relevant

provision of Article 36 creates privately enforceable

individual rights-arguably could apply to plaintiffs claim

for damages pursuant to an implied private right of

action under the treaty. Such an approach, however, is

inappropriate where the plaintiff claims a (damages

remedy pursuant to § 1983 and would rest on a

fundamental misunderstanding of the _ relationship

between treaty law and § 1983. See also Jogi, 480 F.3d at

831-32 noting the distinction “between a private right, on

the one hand, and various remedial measures that affect

criminal prosecutions, on the other”).

Because we hold that Article 36(1)(b)(third) does not

create rights that can be vindicated in a damages action

brought directly under the Convention or pursuant to §

1983, we disagree that plaintiff can state a claim for a

private right of action created by the Convention.

Nonetheless, we note that assuming arguendo that

plaintiff has an individual right under the Convention,

his claim for damages pursuant to § 1983 would likely be

36a

Sanchez-Llamas argues that the language of

the Convention implicitly requires a judicial

remedy because it states that the laws and

regulations governing the exercise of Article

36 rights “must enable full effect to be given to

the purposes for which the rights ... are

intended,” Art. 36(2), 21 U.S.T., at 101

(emphasis added). In his view, although “full

actionable. See Gonzaga, 536 U.S. at 284, 122 S. Ct. 2268

(“[Bjecause § 1983 generally supplies a remedy for the

vindication of rights secured by federal statutes[,] [o]nce a

plaintiff demonstrates that a statute confers an

individual right, the right is presumptively enforceable by

§ 1983."(citation omitted)). Section 1983 would likely

provide a cause of action for damages in the case of a

treaty violation in the same manner that § 1983 provides

a cause of action for remedying a statutory violation. See,

e.g., Cornejo, 504 F.3d at 858 (“[A]Jn 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.”) (internal quotation marks

omitted).

Accordingly, a conclusion that the treaty does not

provide a right to damages ignores the fact that it is §

1983 that allows for damages and not the treaty. Notably,

in Sanchez-Llamas, the-remedy sought was based on the

treaty itself, such as suppression of evidence or dismissal

of an indictment. Accordingly, the Court found that the

treaty did not grant such a remedy and avoided the

question of whether the treaty created an individual

right. 548 U.S. at —, 126 S. Ct. at 2677-78.

37a

effect” may not automatically require an

exclusionary rule, it does require an

appropriate judicial remedy of some kind.

There is reason to doubt this interpretation. In

particular, there is little indication that other

parties to the Convention have interpreted

Article 36 to require a judicial remedy in the

context of criminal prosecutions. . . . Of course,

diplomatic avenues-the primary means of

enforcing the Convention-also remain open.

Sanchez-Llamas, 126 S. Ct. at 2680-82 (emphasis in

original). For similar reasons, we do not regard the

Convention’s “full effect” provision as requiring a

damages claim for a failure to inform an alien of the

consular access and notification requirements. In

addition to the remedies normally available to

States-parties to a treaty, courts may themselves

take actions to comply with the Convention that, in

effect, correct violations of the treaty by law

enforcement authorities. A court’s compliance with

Article 36, perhaps in response to a request by our

national government for treaty compliance

addressed to the thousands of law enforcement

authorities in our federal system, see note 22 ante, is

not the same as individual enforcement of alleged

Article 36 rights in a private civil lawsuit for

damages; this independent responsibility or ability

on the part of a court to abide by the Convention has

nothing to do with the existence vel non of rights

enforceable in a private action by an individual.24 We

24 Our holding does not render Article 36’s guarantees

empty nor does it conflict with Sanchez-Llamas, 126 S.

Ct. at 2682 (“If [a foreign national] raises an Article 36

violation at trial, a court can make appropriate

38a

reject any suggestion by plaintiff that Article 36 is

rendered meaningless in the absence of a cause of

action for damages by individual foreign nationals to

vindicate an alleged violation of its notification

provisions.

2. The Presumption Against Conferral of

Individual Rights by International Treaties

Requires a Clear Statement of the Treaty

Drafters’ Intent

“Even when treaties are self-executing . . . the

background presumption is that international

agreements, even those directly benefiting private

persons, generally do not create private rights or

provide for a private cause of action in domestic

courts.” Medellin, 552 U.S. at — n.3, 128 S. Ct. at

1357 n.3 (citation and quotation marks omitted). We

have recognized that international treaties establish

accommodations to ensure that the defendant secures, to

the extent possible, the benefits of consular assistance.”).

The court would not actually be remedying a treaty

violation or allowing enforcement of an individual right,

as it would if it applied the exclusionary rule, or

dismissed an indictment, or allowed a civil suit to

proceed; rather, it would simply be complying with the

terms of the treaty. Thus, even in the absence of

individual rights enforceable by an alien in a civil

proceeding, a court might-possibly in response to requests

for cooperation by our national government, which itself

acts uncer a treaty obligation assumed by _ that

government in its international relations-inquire as to

whether a defendant knows that he may contact his

consulate; it might even order that the prosecuting

authority allow a foreign national to contact his

consulate.

39a

rights and obligations between States-parties-and

generally not between states and _ individuals,

notwithstanding the fact that individuals may

benefit because of a treaty’s existence. This is so

because a treaty is an agreement between states

forged in the diplomatic realm and similarly reliant

on diplomacy (or coercion) for enforcement. Medellin,

552 U.S. at —, 128 S. Ct. at 1857. As the Supreme

Court explained in the Head Money Cases,

A treaty is primarily a compact between

independent nations. It depends for the

enforcement of its provisions on the interest

and the honor of the governments which are

parties to it. If these fail, its infraction

becomes the _ subject of international

negotiations and reclamations, so far as the

injured party chooses to seek redress, which

may in the end be enforced by actual war.

112 U.S. at 598, 5 S. Ct. 247. The mechanisms for

establishing and enforcing international treaties-

namely, the nation’s powers over foreign affairs-have

been delegated by the Constitution to the Executive

and Legislative branches of government. See Oetjen

v. Central Leather Co., 246 U.S. 297, 302, 38 S. Ct.

309 (1918) (“[T]he conduct of the foreign relations of

our government is committed by the Constitution to

the executive and _legislative-’the political’-

departments.”). Accordingly, a due respect for the

Constitution’s separation of powers, and a

recognition of our own weak tools in this area,

require the courts to refrain from venturing

heedlessly into the realm of foreign affairs. See Head

Money Cases, 112 U.S. at 598, 5 S. Ct. 247 (“It is

obvious that with all this [i.e., treaty negotiation and

40a

enforcement] the judicial courts have nothing to do

anc can give no redress.”). Indeed, the Supreme

Court has specifically instructed courts to exercise

“great caution” when considering private remedies

for international law violations because of the risk of

“impinging on the discretion of the Legislative and

Executive Branches in managing foreign affairs.”

Sosa v. Alvarez-Machain, 542 U.S. 692, 727-28, 124

S. Ct. 2739 (2004). For these reasons, when

interpreting treaties, we generally look for a clear

statement of the intent of treaty drafters.

Our cautious approach to recognizing nrivate

rights within treaty provisions obtains even when

international treaties appear to confer benefits on

individuals. Over a quarter of a century ago, we

explained that “even where a treaty provides certain

benefits for nationals of a particular state-such as

fishing rights-it is traditionally held that ‘any rights

arising out of such provisions are, under

international law, those of the states and pis

individual rights are only derivative through the

states.” Gengler, 510 F.2d at 67 (quoting

Restatement (Second) of the Foreign Relations Law

of the United States (“Restatement (Second)”) § 115

cmt. e (1965)); see also Restatement (Third) § 907

cmt. a (“International agreements, even those

directly benefiting private persons, generally do not

create private rights or provide for a private cause of

action in domestic courts, but there are exceptions

with respect to both rights and remedies.”(emphasis

added)).

The presumption that “treaties do not create

privately enforceable rights in the absence of express

language to the contrary” is reflected in the case law

4la

of our own Circuit and that of cur sister circuits. See

Medellin, 552 U.S. at — n.3, 128 S. Ct. at 1357 n.3.25

25 As the Supreme Court has noted, other courts of

appeals have recognized this presumption that treaties

generally “do not create privately enforceable rights in

the absence of express language to the contrary.”

Medellin, 552 U.S. at — n.3, 128 S. Ct. at 1357 n.3. At

least nine of the other courts of appeals have applied such

a presumption. See United States v. Li, 206 F.3d 56, 60

(1st Cir. 2000) (en banc) (“[T]reaties do not generally

create rights that are privately enforceable in the federal

courts.”); Mannington Mills, Inc. v. Congoleum Corp., 595

F.2d 1287, 1298 (3d Cir. 1979) (“Like private rights under

law, a treaty may confer rights capable of enforcement,

but this is not the general rule.”(citations omitted));

Goldstar (Panama) S.A. v. United States, 967 F.2d 965,

968 (4th Cir. 1992) (“International treaties are not

presumed to create rights that are privately

enforceable.”); United States v. Jimenez-Nava, 243 F.3d

192, 195 (5th Cir. 2001) (“[Treaties] do not generally

create rights that are enforceable in the courts.”); United

States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001)

(“As a general rule .. . international treaties do not create

rights that are privately enforceable in the federal

courts.”); Jogi v. Voges, 480 F.3d 822, 834 (7th Cir. 2007)

(“Although international treaties as a rule do not create

individual rights, Sosa recognizes that international law

in general, and thus treaties in particular, occasionally do

so."(citation omitted)); Cornejo v. County of San Diego,

504 F.3d 853, 859 (9th Cir. 2007) (“Whether or not aptly

characterized as a ‘presumption,’ the general rule is that

[iJnternational agreements, even those directly benefiting

private persons, generally do not create private rights or

provide for a private cause of action in domestic courts,

but there are exceptions with respect to both rights and

remedies.” (international quotation marks and citations

omitted)); Canadian Transport Co. v. United States, 663

42a

Our precedents recognize a presumption against

inferring individual rights from treaties. See, e.g.,

United States v. Rommy, 506 F.3d 108, 129-30 (2d

Cir. 2007) (applying presumption to a bilateral

mutual legal assistance treaty between the United

States and the Netherlands); United States v. Davis,

767 F.2d 1025, 1030 (2d Cir. 1985) (applying

presumption to United States-Switzerland bilateral

mutual legal assistance treaty); Dreyfus v. Von

Finck, 534 F.2d 24, 29-30 (2d Cir. 1976) (applying

presumption to Hague Convention, the Kellogg-

Briand Pact, the Versailles Treaty, and the Four

Power Occupation Agreement); Gengler, 510 F.2d at

67 (2d Cir. 1975) (applying presumption to United

Nations Charter and the Charter of the Organization

of American States).

If contracting States-parties wish to impose upon

themselves legal obligations that extend not only to

F.2d 1081, 1092 (D.C.Cir. 1980) (“[A] treaty must be

interpreted in accord with the rule that treaty violations

are normally to be redressed outside the courtroom.”); see

also Dry v. United States, 235 F.3d 1249, 1256 (10th Cir.

2000) (“It is well-settled that [t]he very great majority of

Indian treaties create tribal, not individual,

rights.”(internal quotation marks and citations omitted));

Ligon v. Johnston, 164 F. 670, 672 (8th Cir. 1908) (“Until

specific, private, individual rights attach pursuant to law,

the enforcement of such trusts [as created by treaty] must

be at the bar of public conscience. They are not justiciable

in the courts.”). It should be noted that courts of appeals

have occasionally conflated the question of whether a

treaty is self-executing with whether the same treaty

creates individual rights. See, e.g., Mannington Mills, 595

F.2d at 1298.

43a

each other, but to all individual foreign nationals, we

would ordinarily expect expression of these

obligations to be unambiguous. Whether we call this

expectation a “presumption,” or refer to it as some

other rule of construction,26 or simply treat it as a

general guide to treaty interpretation, the result is

the same. See, e.g., Medellin, 552 U.S. at —, 128 S.

Ct. at 1357 n.3 (adopting a clear-statement rule for

determining when treaties are self-executing);

Breard, 523 U.S. at 375, 118 S. Ct. 1352 (1998) (“[Tit

has been recognized in international law that,

absent a clear and express statement to the

contrary, the procedural rules of the forum State

govern the implementation of the treaty in that

State.”); Chan v. Korean Air Lines, Ltd., 490 U.S.

122, 135, 109 S. Ct. 1676 (1989) (“We are to find out

the intention of the parties by just rules of

interpretation applied to the subject matter; and

26 Amicus United States argues that the inquiry as to

whether a treaty, as federal law, creates private rights

should be guided by principles, such as the Gonzaga

“clear-statement rule,” governing whether a statute

creates individual rights. See, e.g., Gonzaga University v.

Doe, 536 U.S. 273, 290, 122 S. Ct. 2268 (2002) (“If

Congress wishes to create new rights enforceable under §

1983, it must do so in clear and unambiguous terms-no

less and no more than what is required for Congress to

create new rights enforceable under an implied private

right of action.”). We note that the two other courts of

appeals to address the question of whether a violation of

Article 36(1)(b)(third) is remediable in private action

pursuant to § 1983 have applied the Gonzaga clear-

statement rule in this context. Cornejo, 504 F.3d at 858-

60 (concluding that presumption was not overcome); Jogt,

480 F.3d at 827-28 (finding the presumption overcome).

44a

having found that, our duty is to follow it as far as it

goes, and to stop where that stops-whatever may be

the imperfections or difficulties which it leaves

behind.”).27

We do not, of course, require “robotic

incantations” or “talismanic invocations” by treaty

drafters in order to create individual rights, any

more than we do of Congress, district judges, or

administrative agencies in a variety of spheres. See,

e.g., Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 336 n.17 (2d Cir. 2006) (reviewing an

immigration judge’s credibility finding); United

States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006)

(reviewing a district court’s consideration of the

sentencing set out in 18 U.S.C. § 3553(a)); Riegel

Textile Corp. v. Celanese Corp., 649 F.2d 894, 900 (2d

Cir. 1981) (considering whether Congress created a

statutory private right of action). Indeed, the

Supreme Court, on several occasions, has permitted

foreign nationals to enforce provisions of treaties

that did not explicitly provide for judicial

enforcement of their guarantees. Cf. Kolovrat uv.

Oregon, 366 U.S. 187, 190-91 & n.6, 81 S. Ct. 922

(1961) (allowing foreign nationals to challenge a

state law limiting their inheritance rights under a

27 This presumption comports with the approach

offered by Justice Breyer in his dissent in Medellin:

where a treaty creates “specific, detailed individual legal

rights .. . that judges can readily enforce,” it is likely

directly enforceable, but where enforcement of « treaty

would require the creation of a new cause of action, “it is

not likely that the provision contemplates direct judicial

enforcement.” 552 U.S. at —, i128 S. Ct. at 1382 (Breyer,

J., dissenting).

45a

treaty providing that “{iJn all that concerns the right

of acquiring, possessing or disposing of every kind of

property .. . citizens of [each country who reside in

the other] shall enjoy the rights which the respective

laws grant... in each of these states to the subjects

of the most favored nation”); United States v.

Rauscher, 119 U.S. 407, 410-11, 7 S. Ct. 234 (1886)

(allowing a criminal defendant to raise in his defense

certain alleged violations of an extradition treaty).

However, these cases represent circumstances in

which the general presumption was overcome

because it was far clearer that the intent of the

treaty drafters was to confer rights that could be

vindicated in the manner sought by the affected

individuals. See also Jimenez-Nava, 243 F.3d at 197.

In sum, there are a number of ways in which the

drafters of the Vienna Convention, had they

intended to provide for an individual right to be

informed about consular access and notification that

is enforceable through a damages action, could have

signaled their intentions to do so. Cf. Treaty of

Friendship, Commerce and Consular-Rights, U.S.-

Ger., art. I, Dec. 8, 1923, 44 Stat. 2132, 2133

(expressly providing that “(t]he nationals of each

High Contraciing Party shall enjoy freedom of access

to the courts of justice of the other on conforming to

the local laws, as well for the prosecution as for the

defense of their rights”); Treaty of Commerce and

Navigation, U.S.-Japan, art. VII, Feb. 21, 1911, 37

Stat. 1504, 1506 (expressly authorizing companies in

the contracting parties’ territory “to exercise their

rights and appear in the courts either as plaintiffs or

defendants, subject to the laws of such other

[p]arty”); see also Clark v. Allen, 331 U.S. 503, 67 S.

46a

Ct. 1431 (1947) (entertaining an individual suit

brought under the Treaty of Friendship, Commerce

and Consular Rights between the United States and

Germany); Asakura v. City of Seattle, 265 U.S. 332,

44 S. Ct. 515 (1924) (allowing a foreign national to

challenge a city ordinance on the basis that it

violated the US-Japan Treaty of Commerce and

Navigation). That they chose not to signal any such

intent counsels against our recognizing an individual

right that can be vindicated here in a damages

action.

3. The Views of the United States Are Entitled

to Substantial Deference

The views of amicus the United States constitute

another “very powerful reason” for concluding that

private individuals do not have rights that can be

vindicated in a damages suit for failure to be

informed about consular notification and access. Li,

206 F.3d at 67 (Selya & Boudin, JJ., concurring). We

place “great weight” on the interpretation of a treaty

by the Executive of our federal government. See

Medellin, 552 U.S. at —, 128 S. Ct. at 1349;

Sumitomo Shaji Am., Inc. v. Avagliano, 457 U.S.

176, 184-85, 102 S. Ct. 2374 (1982) (“Although not

conclusive, the meaning attributed to treaty

provisions by the Government agencies charged with

their negotiation and enforcement is entitled to great

weight.”). In the instant case, two federal agencies-

the Department of State and the Department of

Justice-have jointly submitted an amicus brief to our

Court on behalf of the United States in support of

defendants’ position regarding the existence vel non

of individual rights that can be vindicated privately

in courts. Cf. id. at 184-85 & n.10, 102 S. Ct. 2374

47a

(stating that the interpretation of a treaty set forth

in an amicus brief by the Department of State was

entitled to “great weight”). Plaintiff argues that the

deference we owe the position of the United States is

diminished here because the United States has

previously argued, before an international tribunal,

that Article 36 creates judicially enforceable

individual rights. In particular, plaintiff directs us to

the official pleading of the United States in Case

Concerning U.S. Diplomatic & Consular Staff in

Tehran (U.S. v. Iran ), 1980 L.C.J. 3 (May 24). We

disagree that this pleading reflects an inconsistency

from the view to which it has “unfailingly adhered”

that the Vienna Convention “does not create

domestically enforceable federal law” of the sort that

would support plaintiff claims, Medellin, 552 U.S. at

—, 128 S. Ct. at 1361; nor does this persuade us to

give less than “great weight” to the views expressed

in the amicus brief.

Plaintiff emphasizes that in its pleading to the

ICJ in the 1980 litigation involving Iran’s taking of

American diplomatic and consular staff as hostages,

the United States argued that “Article 36 establishes

rights not only for the consular officer but, perhaps

even more importantly, for the nationals of the

sending State who are assured access to consular

officers and through them to others.” Memorial of

the Government of the United States of America,

Case Concerning U.S. Diplomatic & Consular Staff

in Tehran (U.S. v. Iran ), 1982 1.C.J. Pleadings 121,

174 (Jan. 12, 1980). This statement, however, must

be understood in context. The opening sentence of

the section containing the statement reads as

follows:

48a

Pursuant to Article 36 of the Vienna

Convention on Consular Relations, the

Government of Iran is under an international

legal obligation to the United States to ensure

that United States consular officers shall be

free to communicate with nationals of the

sending State and to have access to them, that

United States nationals in Iran have the same

freedom with respect to communication with

an access to consular oficers of the sending

State, and that United States consular officers

have the right to visit United States nationals

who are in prison, custody, or detention.

Id. at 173 (emphasis added) (internal quotation

marks omitted). This sentence makes clear that

whatever derivative protections Article 36 might

provide to individuals-even if these protections may

be referred to as “rights”-the legal obligations arising

thereunder are owed to the United States, not to the

individuals themselves. Cf. Gonzaga, 536 U.S. at 289

n.7, 122 S. Ct. 2268 (rejecting the argument that

“any reference to ‘rights,’ even as a shorthand means

of describing standards and procedures imposed...

should give rise to a statute’s enforceability under §

1983”). Thus, it is manifestly the case that, in its

pleading to the ICJ, the United States was not

suggesting that the American hostages taken by

Iran ought to have access to the courts of Iran in

order to vindicate their individual rights under the

Convention. Accordingly, we do not find the pleading

to be inconsistent with the current views of the

49a

United States,28 to which we must continue to accord

great weight.”

28 As the First Circuit’s majority opinion in Li reveals,

the views of the United States to which we defer in the

instant case are by no means confined to the

administration of President George W. Bush. Writing in

February 2000, and discussing the position of the State

Department under President William J. Clinton, the First

Circuit stated that “[i]n the State Department’s view, the

[Convention] [does] not create individual rights at all....”

Li, 206 F.3d at 63. Quoting from a series of answers

provided by the State Department in response to

questions by the First Circuit, the Li Court explained:

[T]he State Department has concluded that

“Ithhe [Vienna Convention] and the US-China

bilateral consular convention are treaties that

establish state-to-state rights and obligations. .

They are not treaties establishing rights of

individuals. The right of an individual to

communicate with his consular official is

derivative of the sending state’s right to extend

consular protection to its nationals when consular

relations exist between the states concerned.”

Id. (omission and second and third alterations in

original). Quoting further from the State Department

answers, the First Circuit related that it was the State

Department’s position that “|t}he lonly) remedies for

failures of consular notification under the [Vienna

Convention] are diplomatic, political, or exist between

states under international law.” Jd. (second and third

alterations in original) (internal quotation marks

omitted).

29 In any event, isolated past inconsistencies do not

diminish the deference that courts owe clearly espoused

views of the Executive in the realm of treaty

50a

4, The Views of the ICJ Do Not Persuade Us that

Article 36 Confers an Individual Right that Can

Be Vindicated in a Damages Action, Either

Directly Under the Convention or Pursuant to §

1983.

Plaintiff draws to our attention two opinions of

the ICJ that, he claims, addressed the existence of

individual rights under Article 36 of the Vienna

Convention that can be privately vindicated in

courts. See Case Concerning Avena and Other

Mexican Nationals (Mex. v. U.S.), 2004 1.C.J. 12

(Mar. 21); LaGrand Case (F.R.G. v. U.S.), 2001 1.C.J.

466 (June 27). In those cases, the ICJ made certain

comments regarding the “rights” of individuals

under Article 36 while considering whether “the

Vienna Convention . . . preclude[s] the application of

procedural default rules to Article 36 claims” raised

in American habeas corpus proceedings. Sanchez-

interpretation. See, e.g., Sur tomo Shoji Am., Inc., 457

U.S. at 184 n.10, 102 S. Ct. 2374 (explaining that the

State Department’s current interpretation of a treaty was

still entitled to “great weight” notwithstanding a prior

letter by a State Department Deputy Legal Adviser that

took a contrary view); cf. INS v. Cardoza-Fonseca, 480

U.S. 421, 446 n.30, 107 S. Ct. 1207 (1987) (noting, when

declining to give deference to an agency’s interpretation

of a statute, the agency’ “long pattern of erratic

treatment of the issue”). And even where an extensive

series of prior positions might justify decreased deference,

at a minimum those positions, when compared with the

current position, must reflect plain inconsistency on the

part of the Government. Cf. id.(describing “three different

ways” in which an agency interpreted the statute at

issue). We find no such inconsistency here.

5la

Llamas, 126 S. Ct. at 2683. In contrast to the “great

weight” we must provide the views of our Executive, —

the Supreme Court has instructed that we “should

give respectful consideration to the interpretation of

an international treaty rendered by an international

court with jurisdiction to interpret such.” Breard,

523 U.S. at 375, 118 S. Ct. 1352. We are not bound

either to give that interpretation any particular

weight when considering the text and context of a

treaty, or to treat it as having any dispositive effect

in the event of ambiguity. Accordingly, the

“respectful consideration” owed to the interpretation

of an international court is similar to our treatment

of, inter alia, agency opinion letters and enforcement

manuals under Skidmore v. Swift & Co., 323 U.S.

134, 65 S. Ct. 161 (1944). See Christensen v. Harris

County, 529 U.S. 576, 587, 120 S. Ct. 1655 (2000).

That is, the interpretation of the international court

is “entitled to respect . . . but only to the extent that

fit has] the power to persuade.” Id. (citations and

internal quotation marks omitted). “The weight of

such a judgment in a particular case will depend

upon the thoroughness evident in its consideration,

the validity of its reasoning, its consistency with

earlier and later pronouncements, and all those

factors which give it power to persuade, if lacking

power to control.” Skidmore, 323 U.S. at 140, 65 S.

Ct. 161.39

30 The treatment of ICJ decisions described above is

consistent with the treatment of ICJ judgments by the

Supreme Court, see Medellin, 552 U.S. at —, 128 S. Ct. at

1359 (“ICJ judgments were not meant to be enforceable in

domestic courts.”), as well as the role of ICJ judgments

mandated by Article 59 of the Statute of the International

52a

We do not find the views of the ICJ expressed in

Avena and LaGrand to be persuasive in the instant

case. In Avena, the ICJ merely asserted that “the

individual rights . .. under paragraph 1(b) of Article

36 of the Vienna Convention are rights which are to

be asserted, at any rate in the first place, within the

domestic legal system of the United States.” Avena,

2004 I.C.J. at 35. No further rationale was given for

regarding Article. 36 as conferring rights upon

private individuals that they can enforce in domestic

courts. The ICJ then observed that “Article 36,

paragraph 1 fof the Vienna Convention], creates

individual rights [for the national concerned], which

. may be invoked in this Court by the national

State of the detained person.” Id. at 36 (alterations

and omission in original) (emphasis added) (quoting

LaGrand, 2001 IC.J. at 494) (internal quotation

marks omitted). This conclusion-that Article 36

creates “individual rights” that can be asserted by a

sending State in the ICJ-is not inconsistent with the

view that Article 36 creates potential benefits for

individuals but that an individual does not have a

right that can be vindicated in a damages action for

such a violation. And even if the import of this

statement were that Article 36 confers enforceable

rights directly upon individuals, we do not think that

the ICJ’s brief analysis in LaGrand leading to such a

determination casts doubt upon our conclusions

above. After listing the basic requirements of Article

Court of Justice, which provides that a “decision of the

[ICJ] has no binding force except between the parties and

in respect of that particular case,” June 26, 1945, 59 Stat.

1051, 1062, T.S. No. 993. See generally Flores, 414 F.3d at

250-52 & n.25.

53a

36, the ICJ noted that Article 36 uses the term

“rights” and allows a detained foreign national to

refuse assistance from the sending State. See

LaGrand, 2001 I.C.J. at 494. The ICJ then stated

that “[t]he clarity of these provisions, viewed in their

context, admits of no doubt.” Jd. Yet a proclamation

of certainty is not a substitute for persuasiveness.

We do not believe that the relevant provision at

issue here indicates an intention, much less a clear

one, to confer rights directly upon individuals that

can be vindicated in a damages action for failure to

inform them of the obligation of consular notification

and access.

5. The Convention’s Travaux Préparatoires Do

Not Require a Different Result

The Supreme Court has observed that it has

“traditionally considered as [an] aid[ ] to [a treaty’s]

interpretation the [treaty’s] negotiating and drafting

history (travaux préparatoires).” Zicherman uv.

Korean Air Lines Co., 516 U.S. 217, 226, 116 S. Ct.

629 (1996); see also Société Nationale Industrielle

Aérospatiale, 482 U.S. at 534, 107 S. Ct. 2542 (“The

treaty’s history, the negotiations, and the practical

construction adopted by the parties may [in addition

to text and context] be relevant.” (emphasis added)

(internal quotation marks omitted)). The terms in

which the Supreme Court has described the

interpretive effect of the negotiating and drafting

history of a treaty, the travaux préparatoires,

suggest a usefulness that is conditional and

secondary to the text and context of the treaty. As

Article 32 of the Vienna Convention on the Law of

Treaties, see note 19 ante and accompanying text,

explains further, recourse to the travaux “may be

54a

had” only to (1) “confirm the meaning resulting

from” the consideration of text and context or (2)

“determine the meaning when the interpretation

according to [text and context] (a) [lJeaves the

meaning ambiguous or obscure[ ] or (b) [lJeads to a

result which is manifestly absurd or unreasonable.”

1155 U.N.T.S. at 340.

Whether the travaux support plaintiffs stance is

by no means clear. Plaintiff directs us to several

discussions of “individual rights” during debates over

proposed amendments to the Convention. See, e.g., 1

Official Records, United Nations Conference on

Consular Relations 332 (1963) (statement of the

Spanish delegate, asserting that “[t]he right of the

nationals of a sending State to communicate with

and have access to the consulate and consular

officials of their own countries . . . was one of the

most sacred rights of foreign residents in a country”).

Yet, as is the case with references to “rights” in the

legislative history of statutes, see Pennhurst, 451

U.S. at 18-20, 101 S. Ct. 1531, such terminology does

not usefully distinguish between (1) legal obligations

owed directly to individuals and enforceable by them

under municipal (i.e., domestic) law, and (2) legal

obligations that might inhere to the benefit of

individuals but are owed to a representative entity.

The plaintiff has also not directed us to any passage

in which +he Conference considered whether these

“rights” could be vindicated in an action for

damages, nor have we located such a passage. in any

event, scattered examples drawn from the travaux to

support plaintiffs position would not defeat the

deference (“great weight”) we owe to the clear and

consistent views of the United States.

55a

B. Plaintiffs Claims Cannot Support_a Cause of

Action Pursuant to the ATS

Apart from his claims based on an implied right

of action under the Vienna Convention and § 1983,

plaintiff claims that this alleged violation of Article

36(1)(bX third) gives rise to a claim pursuant to the

ATS for a violation of customary international law.

The novel tort proposed, a form of unlawful

detention, does not meet the Supreme Court’s

requirements for recognition of a customary

international law tort.21 We conclude that plaintiff

31 A violation of Article 36(1)(b)(third) by itself would

not meet the specificity requirement for recognition of an

ATS cause of action. In Sosa, the Court concluded that a

general prohibition of “arbitrary detention,” even where

such a norm was prescribed in an international

agreement, was too broad to achieve the status of a

binding customary norm actionable under the ATS. 542

U.S. at 736, 124 S. Ct. 2739;id. at 738, 124 S. Ct. 2739

(“Whatever may be said for the broad principle Alvarez

advances, in the present, imperfect world, it expresses an

aspiration that exceeds any binding customary rule

having the specificity we require. Creating a private

cause of action to further that aspiration would go beyond

any residual common law discretion we think it

appropriate to exercise.”). Rather, defining the plaintiffs

claim at the requisite level of specificity, the Court

concluded that plaintiffs tort claim on the basis of “a

single illegal detention of less than a day, followed by the

transfer of custody to lawful authorities and a prompt

arraignment, violates no norm of customary international

law so well defined as to support the creation of a federal

remedy.” Jd.; see also Vietnam Ass’n for Victims of Agent

Orange v. Dow Chemical Co., 517 F.3d 104; 119 (2d Cir.

2008) (concluding that plaintiffs had not provided

56a

has not shown that his detention without being

informed of the availability of consular notification

and access amounts to a tort in violation of

customary international law cognizable under the

ATS, 28 U.S.C. § 1350.

In Sosa v. Alvarez-Machain, the Supreme Court

acknowledged that the ATS is a jurisdictional

statute but that it also grants courts the power

recognize “private causes of action for certain torts in

violation of the law of nations,”542 U.S. 692, 724,

124 S. Ct. 2739 (2004). The Court cautioned against

recognition of actionable international norms and

observed that only a “modest number” of customary

international law torts are cognizable under the

ATS. Id. Among the many reasons counseling

restraint, the Court emphasized that the “collateral

consequences of making international rules privately

actionable argue for judicial caution.” Jd. at 725, 124

S. Ct. 2739. To provide a cause of action under the

ATS, a customary international law tort must meet a

“high bar” for recognizing new causes of action: it

must be both specific and well-accepted. 7d. We

conclude that plaintiffs’ ATS claim fails the second

criterion.

To form the basis of a ATS suit, the alleged tort

must be “defined with a specificity comparable to the

features of the 18th-century paradigms” of torts in

violation of the law of nations-violations of safe

conducts, offenses against ambassadors, and piracy.

Sosa, 542 U.S. at 725, 124 S. Ct. 2739; id. at 715,

“support [for] a universally-accepted norm prohibiting the

wartime use of Agent Orange that is defined with the

degree of specificity required by Sosa”).

57a

124 S. Ct. 2739 (quoting 4 W. Blackstone,

Commentaries on the Laws of England 68 (1769)).

These paradigmatic examples involve offenses

“principally incident to whole states or nations and

not individuals seeking relief in court.” Id. at 720,

124 S. Ct. 2739 (citations and internal quotation

marks omitted). Plaintiff has pointed to no sources

which evince support for the specific customary

international law tort proposed here-detention

without being informed of the availability of consular

notification and access. Cf. Vietnam Ass’n, 517 F.3d

at 119-23 (concluding that plaintiffs had failed to

describe a relevant norm of customary international

law with the requisite specificity). To the contra y, it

appears that none of the States-parties to the

Convention, “[w]jith one possible exception,”

recognize such a tort in their domestic law. See note

5 ante. Thus, it cannot be said that the tort proposed

has “attained the status of a binding customary

norm,” Sosa, 542 U.S. at 737, 124 S. Ct. 2739; see

also Flores, 414 F.3d at 248 (“[C]ustomary

international law is composed only of those rules

that States universally abide by, or accede to, out of

a sense of legal obligation and mutual concern..”).

Nor can it be said that imprisonment in violation of

Article 36(1)(b\(third) is “so bad that those [who

engage in this conduct] become enemies of the

human race.” Sosa, 542 U.S. at 737, 124 S. Ct. 2739.

We also note that this inquiry “involvels] an

element of judgment about’ the practical

consequences of making that cause available to

litigants in the federal courts.” Id. at 732-33, 124 S.

Ct. 2739. This consideration weighs against

recognition of plaintiffs proposed cause of action. A

58a

customary international law tort for imprisonment

in violation of Article 36(1)(b)(third) suffers from the

same infirmities as the tort proposed in Sosa: “the

label [enemy of the human race] would never fit the

reckless policeman who botches his [notice of the

availability of consular notification and access], even

though that same officer might pay damages [for

violating any applicable] municipal law.” Sosa, 542

U.S. at 737, 124 S. Ct. 2739. Accordingly, we cannot

recognize an ATS cause of action for the alleged

violations of Article 36(1)(b\third).

CONCLUSION

For the reasons stated above, we conclude that

the obligation of detaining authorities to inform an

alien of the consular notification and access

requirements set forth in Article 36(1)(bXthird) of

the Vienna Convention does not authorize an

individual to vindicate in an action for damages a

violation of Article 36(1)(b\third) pursuant to §

1983, ATS, or directly under the Convention.

Accordingly, the judgment of the District Court is

AFFIRMED.

59a

APPENDIX B

DISTRICT COURT OPINION

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RICARDO A. DE LOS SANTOS MORA,

Plaintiff,

-against-

THE PEOPLE OF THE STATE OF NEW

YORK; RICHARD A. BROWN, DISTRICT

ATT., FLUSHING, QUEENS POLICE DEPT.,

Defendants.

05-CV-5995 (RJD)

DEARIE, United States District Judge:

On December 5, 2005, Plaintiff filed the Instant

complaint pro se pursuant to 28 U.S.C. § 1350, ~

alleging that the arresting officers and the Queens

County District Attorney violated the Vienna

convention at the time of his 1992 arrest. He seeks

$ 1 million in damages. The Court grants plaintiffs

60a

request to proceed in forma pauperis but the

complaint is dismissed for the reasons stated below.

Standard of Review

Section 1915A requires this Court to review the

complaint in a civil action in which a prisoner seeks

redress from officers or employees of a governmental

agency and to “identify cognizable claims or dismiss

the complaint, or any portion of the complaint, if the

complaint .. . is frivolous, malicious, fails to state a

claim upon which relief may be granted or seeks

monetary relief from a defendant who is immune

from such relief.” 28 U.S.C. § 1915A(b); see Carr v.

Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per

curiam). An action is frivolous as a matter of law

when, inter alia, it is based on an “indisputably

meritless legal theory’— that is, when it “lacks an

arguable basis in law ... , or [when] a dispositive

defense clearly exists on the face of the complaint.”

Livingston v. Adirondack Beverage Co., 141 F.3d

434, 437 (2d Cir. 1998).

Discussion

Vienna Convention

Plaintiff alleges that :

the District Attorney Mr. Richard A. Brown

and the arresting officers knew that Plaintiff

is a citizen of the Dominican [Rlepublic. At no

time during the arrest, interrogation, or court

appearances Plaintiff was advised of his

Vienna Convention rights. [Tlhe District

6la

Attorney should have informed Plaintiff of his

international right and failed to do so.

Complaint at 3.

Article 36 of the Vienna Convention on Consular

Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T:S.

261, T.I.A.S. No. 6820, para. 1, requires a host state

to notify the consul of a foreign state when a

national of that foreign state is arrested. The United

States is a signatory to that treaty. However, that

treaty creates no fundamental rights for a foreign

national. See Waldron v. INS, 17 F.3d 511, 518 (2d

Cir. 1994). Generally, “there is a strong presumption

against inferring’ individual rights from

international treaties.” United States v. De la Pava,

268 F.3d 157, 164 (2d Cir. 2001). The Vienna

Convention was meant to protect the rights of states

to care for their nationals traveling abroad, not to

protect the rights of individuals. See id. at 164-65.

Failure to notify the consul of a defendant’s home

country of the defendant’s arrest is not a basis for

dismissing an indictment. Jd. at 165-66; see also U.S.

v. Hall, No. CR-03-910, 2005 WL 1984463, *11

(E.D.N.Y. Aug. 17, 2005); Moyhernandez v. U.S., No.

02 CIV. 8062, 2005 WL 351115, at *2 (S.D.N.Y. Feb.

09, 2005); Polanco v. United States, No. 99 Civ. 5739,

2000 WL 1072303, *6 (S.D.N.Y. Aug.3, 2000) (“[A]

violation of the Vienna Convention’s consular notice

provision does not constitute a constitutional

violation or a fundamental defect in the conduct of

his trial.”). Therefore, assuming the State did not

notify the Dominican Consulate of plaintiffs arrest,

the failure to comply with the Vienna Convention is

not grounds for vacating a sentence. Accordingly,

62a

plaintiff's complaint fails to state a claim upon which

relief may be granted. 28 U.S.C. § 1915A.

Conclusion

Accordingly, plaintiffs complaint is dismissed. 28

U.S.C. § 1915A. The Court certifies pursuant to 28

U.S.C. § 1915 (aX3) that any appeal from this order

would not be taken in good faith and therefore in

forma pauperis status is denied for purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438,

444-45 (1962).

SO ORDERED.

s/ Raymo Dearie

RAYMOND J. DEARIE

United States District Judge

Dated: Brooklyn, New York

12/30/2005

63a

APPENDIX C

RELEVANT TREATY PROVISIONS

The preamble to the Vienna Convention on

Consular Relations provides as follows:

The States Parties to the present Convention,

Recalling that consular relations have been

established between peoples since ancient

times,

Having in mind the Purposes and Principles of

the Charter of the United Nations concerning

the sovereign equality of States, the

maintenance of international peace and

security, and the promotion of friendly

relations among nations,

Considering that the United Nations

Conference on Diplomatic Intercourse and

Immunities adopted the Vienna Convent. on

Diplomatic Relations which was opened for

signature on 18 April 1961,

Believing that an international convention on

consular relations, privileges and immunities

would also contribute to the development of

friendly relations among nations, irrespective

of their differing constitutional and social

systems,

Realizing that the purpose of such privileges

and immunities is not to benefit individuals

but to ensure the efficient performance of

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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 on Consular Relations, preamble,

21 U.S.T. 77, 79, 596 U.N.T.S. 261 (1969) (footnotes

omitted).

Article 36 of the Convention provides:

1. With a view to facilitating the exercise of

consular functions relating to nationals of the

sending State:

(a) consular officers shall be free to

communicate with nationals of the sending

State and to have access to them. Nationals of

the sending State shall have the same freedom

with respect to communication with and access

to consular officers of the sending State;

(b) if he so requests, the competent

authorities of the receiving State shall,

without delay, inform the consular post of the

sending State if, within its consular district, a

national of that State is arrested or committed

to prison or to custody pending trial or is

detained in any other manner. Any

communication addressed to the consular post

by the person arrested, in prison, custody or

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detention shall also be forwarded by the said

authorities without delay. The said authorities

shall inform the person concerned without

delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to

visit a national of the sending State who is in

prison, custody or detention, to converse and

correspond with him and to arrange for his

legal representation. They shall also have the

right to visit any national of the sending State

who is in prison, custody or detention in their

district in pursuance of a judgment.

Nevertheless, consular officers shall refrain

from taking action on behalf of a national who

is in prison, custody or detention if he

expressly opposes such action.

2. The rights referred to in paragraph 1 of this

Article shall be exercised in conformity with

the laws and regulations of the receiving

State, subject to the proviso, however, that the

said laws and regulations must enable full

effect to be given to the purposes for which the

rights accorded under this Article are

intended.

Id. art. 36, 21 U.S.T. at 100-01.