EZEQUIEL NUNEZ CORNEJO v. COUNTY OF SAN DIEGO; CITY OF SAN DIEGO; CITY OF ESCONDIDO; THE CITY OF OCEANSIDE; PAUL LACROIX; WILLIAM MCDANIEL, California Deputy Sheriff; JON MONTION; DOES 1-100; CITY OF CARLSBAD
No. 05-56202
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 24, 2007
Opinion by Judge Rymer; Dissent by Judge D.W. Nelson
D.C. No. CV-05-00726-MLH. Argued and Submitted June 25, 2007—Pasadena, California. Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding.
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Genaro Lara, Vista, California, (argued); Emile M. Mullick, San Bernardino, California, for the plaintiffs-appellants.
Douglas N. Letter (argued), Sharon Swingle, Department of Justice, Washington, D.C., for amicus curiae the United States.
OPINION
RYMER, Circuit Judge:
This appeal requires us to resolve an issue left open in our en banc decision in United States v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000): whether Article 36 of the Vienna Convention on Consular Relations1 creates judicially enforceable rights that may be vindicated in an action brought under
Ezequiel Nunez Cornejo’s complaint seeks damages and injunctive relief against the County of San Diego, several deputy sheriffs, and various cities within the county on behalf of a class of foreign nationals who were arrested and detained without being advised of their right to have a consular officer notified as required by Article 36. The district court dismissed the action, concluding that Cornejo could not bring a
We agree with the district court that Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and pro
I
Cornejo is a national and citizen of Mexico. His First Amended Complaint alleges that when he was arrested, San Diego County Sheriff’s Deputies Paul LaCroix, William McDaniel, and Jon Montion failed to inform him, and others similarly situated whom he seeks to make part of a class, of the individual right conferred by Article 36 and by
Cornejo timely appealed, and the United States has appeared as amicus curiae in support of the county, deputy sheriffs, and the cities.
II
[1] The Vienna Convention is a multilateral international agreement “that governs relations between individual nations and foreign consular officials.” Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2691 (2006) (Breyer, J., dissenting). Adopted in 1963, 170 States are States parties.5 The United States ratified the Convention in 1969. Id. Article 36 provides:
Communication and contact with nationals of the sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(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 judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress. See
[2] Therefore, the question here is whether Congress, by ratifying the Convention, intended to create private rights and remedies enforceable in American courts through
[3] As Cornejo’s claim is pursuant to
“In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992). As it is a treaty that is being construed, however, and a treaty is an agreement
[4] Treaties customarily confer rights upon the States that are parties to them. While treaties may confer enforceable individual rights, see, e.g., Head Money Cases, 112 U.S. 580, 598-99 (1884); Lombera-Camorlinga, 206 F.3d at 885, most courts accept a “presumption” against inferring individual rights from international treaties. See Emuegbunam, 268 F.3d at 389; De La Pava, 268 F.3d at 164; Jimenez-Nava, 243 F.3d at 195-96; but see Sanchez-Llamas, 126 S. Ct. at 2697 (Breyer, J., dissenting). Whether or not aptly characterized as a “presumption,” the general rule is that “[i]nternational agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private
Against this backdrop, Cornejo’s most compelling argument is that Article 36 textually uses the word “rights” in reference to a detainee’s being informed that he can, if he wants, have his consular post advised of his detention and have communications forwarded to it. This use of the word in paragraph 1(b) “arguably confers on an individual the right to consular assistance following arrest.” Breard, 523 U.S. at 376. However, it says nothing about the nature of “his rights” or how, if at all, they may be invoked. This language, therefore, must be considered in light of what the Convention, and Article 36, are all about. Restatement § 325(1) (noting that treaty terms are to be construed in their context and in the light of the treaty’s object and purpose).
Entitled “Communication and contact with nationals of the sending State,” Article 36 appears in Section I of Chapter II of the Convention. Chapter II governs “Facilities, Privileges
[5] Accordingly, sub-paragraph 1(a) gives consular officials the right “to communicate with nationals of the sending State and to have access to them.” The exchange of information provided for in sub-paragraph 1(b) supports the consular function and the rights conferred in sub-paragraph 1(a) upon consular officers to communication and access. And sub-paragraph 1(c) guarantees consular officials the right to visit a national of the sending State who is in prison, custody or detention, as well as to converse and correspond with him and to arrange for his legal representation — if the national wants that kind of help and if the consulate wants to give it.
[6] These “rights” are consistent with the articulated purpose of facilitating the exercise of consular functions, not with awarding compensation to individual detainees who receive no notification from their arresting officers. Requiring a receiving State to notify a foreign national that, if he wishes, it will inform the local consular post of an arrest or detention,
[7] We conclude, therefore, that the unmistakable focus of Article 36 is on consular functions. The privileges discussed are explicitly those relating to the consular post. They are manifestly important, because Article 36 provides for communication and contact by sending States with their nationals who are in trouble in a foreign country. However, the signatory States did not choose to delegate enforcement of Article 36 — even to their own consular officials.11 They plainly did not do so to individual foreign nationals. For all these reasons, we cannot see unambiguous clarity in the language of Article 36 implying that the States parties to the Convention conferred a private, judicially enforceable right upon individuals. Gonzaga, 536 U.S. at 283-84.
The Vienna Convention on Consular Relations is an agreement among States whose subject matter — “Consular Relations” — is quintessentially State-to-State. Except for its final provisions, the Convention’s articles all have to do with consular posts. Indeed, the Preamble notes the belief of the States parties that “an international convention on consular relations, privileges and immunities would . . . contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems“; and their realization that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.”13 Cf. Gonzaga, 536 U.S. at 284 (to imply enforceable private rights, a statute’s “text must be ‘phrased in terms of the person benefitted.’ “) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 692 n.13 (1979)). As the International Court of Justice explained, the Convention establishes an “interrelated régime” of international legal obli-
Cornejo suggests that the proviso in paragraph 2 manifests an intent to create privately enforceable rights. Nowhere does it say so. If anything, the fact that it talks in terms of how “rights referred to in paragraph 1 of this article shall be exercised” indicates the opposite, for it does not also say “and be compensated.”14 Moreover, just as paragraph 2 recognizes that the “rights” are to be exercised in conformity with the laws and regulations of the receiving State, it provides that those laws and regulations “must enable full effect to be given to the purposes for which the rights accorded under this article are intended.” The only articulated purpose is in paragraph 1, and it is to facilitate the exercise of consular functions relating to nationals of the sending State.
To the extent that Congressional intent in ratifying the Convention may be discerned, it, too, supports our interpretation. For example, the Report of the Committee on Foreign Relations recommending that the Senate give its advice and consent to ratification of the Convention emphasizes the preamble: “The general functional approach of the Convention is pointed up by the following preambular statement: ‘* * * the purpose of such privileges and immunities is not to
Cornejo points out that in his Letter of Transmittal to the President, Secretary of State William P. Rodgers stated that Article 36 “requires that authorities of the receiving State inform the person detained of his right to have the fact of his detention reported to the consular post concerned and of his right to communicate with that consular post.” Li, 206 F.3d at 74 (Torruella, C.J., concurring in part, dissenting in part, quoting the Secretary’s letter transmitting the certified copy of the Convention). This statement, however, simply mirrors the provision itself, which unquestionably refers to “rights,” without shedding light on whether its intent was (or was not) to create privately enforceable rights. By the same token, the Report of the United States Delegation to the Conference that resulted in the Convention states of Article 36 that it “is useful to the consular service of the United States in the protection of our citizens abroad.” Id. (quoting Report of the United States Delegation to the United Nations Conference on Con-
Given that Article 36 does not unambiguously confer a right in individual detainees to support a cause of action under
Finally, the government represents that none of the 170 States parties has permitted a private tort suit for damages for violation of Article 36. See also Li, 206 F.3d at 65 (relating similar advice from the State Department with respect to remedying failures of notification through a domestic criminal justice process). This is consistent with the State Department’s position that the remedies “are diplomatic, political, or exist between states under international law.” Id. at 63 (quoting the Department of State Answers to the Questions posed by the First Circuit in United States v. Nai Fook Li at A-3).16
[8] Accordingly, we hold that Article 36 does not unambiguously give Cornejo a privately enforceable right to be notified. For sure, he should have been notified. The government agrees; the State Department and the Department of Homeland Security have regulations in place that track the requirements of Article 36. So does the State of California. It is important to the United States that its treaty obligations be fulfilled, otherwise reciprocity is jeopardized. However, the “rights” in Article 36 were intended to facilitate the exercise of consular functions. That is how the treaty was understood by the United States Department of State and Congress. And it is how the treaty has been understood in practice by all its signatories. While Article 36 may also benefit an individual detainee when properly followed, benefit is not enough to pass the Gonzaga test. We therefore agree with the district court that Cornejo cannot state a claim under
AFFIRMED.
D.W. NELSON, Senior Circuit Judge, dissenting:
The question that we should address, in accordance with Supreme Court precedent in Gonzaga University v. Doe, 536 U.S. 273 (2002), is whether Article 36(1)(b) of the Vienna Convention on Consular Relations (“Vienna Convention“), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, was intended to confer individual rights that would be presumptively enforceable under
I. Gonzaga University v. Doe
I agree with the majority that Gonzaga establishes the standard under which we are to determine whether Cornejo can rely on
II. Text of Article 36(1)(b) of the Vienna Convention
To determine whether Article 36(1)(b) confers individual rights on a particular class of persons, we must first look to the language of the treaty. See id. at 287 (examining the language of the statute). In order for the treaty to confer individual rights, “its text must be phrased in terms of the persons benefitted.” Id. at 284 (citation and internal quotation mark omitted). Article 36(1)(b) states:
If [the national of the sending State] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
Vienna Convention, Art. 36(1)(b). Article 36(1)(b) speaks rather clearly in rights-conferring language as it “instructs authorities of a receiving State to notify an arrested foreign national of ‘his rights’ under the Convention ‘without delay.’ ” Jogi v. Voges, 480 F.3d 822, 829 (7th Cir. 2007). The language in Article 36(1)(b) is distinct from the statutory language in Gonzaga that the Supreme Court held did not confer individual rights. In that case, the appellant was seeking enforcement through
The majority seems to agree as well stating that “[the] use of the word [“rights”] in paragraph 1(b) ‘arguably confers to an individual the right to consular assistance following arrest.’ ” Maj. Op. at 12992 (quoting Breard v. Greene, 523 U.S. 371, 376 (1998)). Nonetheless, the majority rejects Cornejo’s claim for relief under
In spite of the clear language in Article 36(1)(b) referencing “his rights” and the conferral of the right on a particular class of persons, the majority contends that this right belongs entirely to the sending State. See Maj. Op. at 12994. To support this contention, the majority looks to titles contained in the Vienna Convention and other subparagraphs within Article 36. However, such an interpretation is contrary to the clear language of Article 36(1)(b), which refers to “his rights” not to those of the sending State. If the drafters of the treaty intended that the rights in Article 36(1)(b) belong entirely to the State, it easily could have written language consistent with such a construction or simply omitted the last sentence of Article 36(1)(b). Instead, as will be discussed in greater detail below, the drafters of the treaty included this language to make clear that individuals have a right to be informed that competent authorities are required to notify their consulates if they so request.
III. Extratextual Sources of Interpretation of Article 36(1)(b)
The majority seeks to buttress its conclusion that Article 36(1)(b) does not confer individual rights through an analysis of the Vienna “Convention as a whole, the contemporaneous understanding of Congress in ratifying it as well as the view of the Department of State, and the uniform practice of States implementing it over the years.” Maj. Op. at 12995. Accord-
First, the majority states that “[e]xcept for its final provisions, the Convention’s articles all have to do with consular posts.” Id. Assuming arguendo that this is the case, it does not foreclose the possibility that the drafters intended to protect the individual rights of foreign nationals in Article 36(1)(b) as made clear by the language of the provision. Instead, as will be discussed in greater detail below, the drafters understood Article 36(1)(b) to be a unique provision within the Vienna Convention that required extensive negotiations to secure passage.
Second, the majority relies on the Preamble to the Vienna Convention, which states:
Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privilege and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States,
Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention,
Have agreed as follows: . . .
The Seventh Circuit has explained, “[i]t is a mistake to allow general language of a preamble to create an ambiguity in specific statutory or treaty text where none exists. Courts should look to materials like preambles and titles only if the text of the instrument is ambiguous.” Jogi, 480 F.3d 822. This explanation is consistent with a long-standing rule of statutory construction that a statute “clear and unambiguous in its enacting parts, may [not] be so controlled by its preamble as to justify a construction plainly inconsistent with the words used in the body of the statute.” Price v. Forrest, 173 U.S. 410, 427 (1899). In other words, a preamble cannot be relied upon to create ambiguity in a statute. In this case, the text of Article 36(1)(b) is clear in conferring rights on individuals. Therefore, looking to the preamble is inappropriate.
More importantly, we have specifically rejected reliance on the preamble as support for the argument that Article 36 creates no individual rights. United States v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000). Instead, we explained that “the protection of some interests of aliens as a class is a corollary to consular efficiency.” Id. (citing United States v. Calderon-Medina, 591 F.2d 529, 531 n.6 (9th Cir. 1979)). Therefore, we concluded, “[t]he preamble is not particularly helpful to our analysis” of whether Article 36(1)(b) confers an individual right. Id. The majority does not explain why, contrary to our precedent on the issue, the preamble is now a useful guide to determining whether Article 36(1)(b) confers an individual right.
The majority also does not address an interpretation of the preamble that would be consistent with a rights-conferring
Third, the majority relies on congressional intent in ratifying the Convention. The majority first looks to statements in the Report of the Committee on Foreign Relations describing the function of the Vienna Convention in terms of the preamble. As discussed above, the language in the preamble does not support the majority’s conclusion that Article 36(1)(b) does not confer individual rights. As a result, what amounts to a mere reiteration of the language of the preamble by the Committee on Foreign Relations in their discussion of the treaty is similarly unhelpful.
The majority then quotes the Report of the Committee on Foreign Relations, which states:
Consular facilities, privileges and immunities of consular officers and other members of a consular post are stated in Article 28 to 57. Among other things, these articles concern inviolability of consular premises, archives, and documents, freedom of movement
and of communication, personal inviolability of consular officers, privileges and immunities, including exemptions from social securities regulation, taxation, customs duties and inspections.
Maj. Op. at 12997. This is a particularly weak reed on which to place any weight. It is true that Articles 28 to 57 discuss consular facilities, privileges and immunities of consular officers and other members of a consular post, but the Committee did not determine that these issues were to the exclusion of all others. In fact, several articles fall outside of this broad description. For example, Article 29 addresses the use of a national flag and coat-of-arms, Article 37 addresses the responsibility of the receiving State to notify the sending State about information in the case of a death of a national of the sending State, and Article 39 addresses consular fees and charges. Thus, the fact that Article 36(1)(b) establishes rights for foreign nationals, which is contrary to the Committee’s broad, paragraph description of thirty articles in the Vienna Convention, should not carry any weight.
The majority lastly points to statements in the Report identifying factors that “weighed in the Committee’s decision,” which included the fact that “[t]he Convention does not change or affect present U.S. laws or practices.” Maj. Op. at 12997. The majority contends that the Committee would not have made such a statement regarding the effect of the Vienna Convention on U.S. law and practices if the treaty created a right in a foreign national to sue, which “would have been unprecedented in 1969.” Maj. Op. at 12997. The majority’s analysis demonstrates confusion with regards to the Gonzaga standard discussed above. The question under Gonzaga is not whether the particular statute or treaty creates a right to sue, but instead whether the statute or treaty confers an individual right that is presumptively enforceable under
I agree that the fact that the conferring of individual rights on a particular class of persons in the Convention establishes a presumptive right of enforcement under
Fourth, the majority contends that the contemporaneous position of the United States Department of State “reinfor-ce[d] the view that the Convention as a whole, and Article 36 in particular, were not intended to create individually enforceable rights.” Maj. Op. at 12998. The majority again confuses the Gonzaga standard. What is relevant under Gonzaga is whether the Convention creates individual rights, not whether it creates individually enforceable rights. See Gonzaga, 536 U.S. at 284-85. As will be discussed below, the enforceability of the right under
Since the optional protocol establishes a procedure for referring disputes to the World Court in which the Connally amendment would not apply, do you foresee any cases arising in which you might regret not having the protection of the Connally Amendment?
The Connally amendment “provided that U.S. acceptance of the [ICJ’s] jurisdiction did not apply to domestic matters, and that the United States reserved for itself the exclusive right to determine whether a particular matter was domestic.” Paul S. Reichler, Holding America to Its Own Best Standards: Abe Chayes and Nicaragua in the World Court, 42 Harv. Int’l L.J. 15, 29 (2001). A more reasonable interpretation of the response to the question than that offered by the majority is that the adviser was trying to assure the Senate that the ICJ would not have the authority to resolve disputes that the United States considered domestic. Instead, such disputes would be resolved through diplomatic channels or, in the case of international disputes, the International Court of Justice (ICJ). Nothing can be inferred from the statement about
However, if we look at the mechanisms for resolving disputes cited by the State Department advisors, a decision of the ICJ provides support for an interpretation of Article 36(1)(b) as conferring individual rights. Although, the decisions of the ICJ have “no binding force except between the parties and in respect of that particular case,” see ICJ Statute, art. 34(1), they can provide persuasive support for a legal conclusion. In LaGrand, the ICJ held that Article 36(1)(b) “creates individual rights for the detained person in addition to the rights accorded the sending State, and that consequently the reference to ‘rights’ in paragraph [b] must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual.” See LaGrand Case (Germany v. U.S.), 2001 I.C.J. 466, at ¶ 89 (June 27); see also id. at ¶ 77. Thus, on the basis of the ICJ process of resolution of conflicting interpretations of the Vienna Convention, Article 36(1)(b) does confer individual rights.
The ICJ’s determination is consistent with the contemporaneous understanding of Secretary of State William P. Rodgers. In the Letter of Submittal of the Vienna Convention to President Nixon, Secretary of State Rodgers indicated that:
[Article 36(1)(b)] requires that authorities of the receiving State inform the person detained of his right to have the fact of his detention reported to the consular post concerned and his right to communicate with that consular post. If he so requests, the consular post shall be notified without delay.
Li, 206 F.3d at 74 (Torruella, C.J., concurring in part, dissenting in part, quoting the Secretary’s letter transmitting the certified copy of the Convention) (emphasis added). The majority dismisses this statement as “simply mirror[ing] the provision itself, which unquestionably refers to “rights,” with-
Further support for this conclusion is found in the U.S. Vienna Report, which was attached to the Letter of Submittal. The Report stated:
The solution adopted by the Conference to the problem of adjusting the notification obligations of the receiving State to the right of the individual concerned to request notification lies in the final sentence of subparagraph 1(b). That sentence requires authorities of the receiving State to inform the person detained of his right to have the fact of his detention reported to the consular post concerned and of his right to communicate with that consular post.
The majority does not address these contemporaneous statements. Given that contemporaneous statements of the United States Department of State are entitled to “great weight” in the interpretation of treaties, the appropriate conclusion is that Article 36(1)(b) confers an individual right. See Maj. Op. at 12998 (citing United States v. Stuart, 489 U.S. 353, 369 (1989))
Finally, the majority relies on the legislative history of the Vienna Convention (the travaux préparatoires). After explaining that there is no need to resort to the travaux préparatoires because Article 36(1)(b) unambiguously does not confer “a right in individual detainees to support a cause of action under
The original text of Article 36(1)(b) stated:
The competent authorities shall, without undue delay, inform the competent consulate of the sending State, if within its district, a national of that State is committed to prison or to custody pending trial or is detained in any other manner. Any communications addressed to the consulate by the person in prison, custody or detention shall also be forwarded by the said authorities without undue delay . . . .
Draft ILC Articles, U.N. Doc. A/CN.4/136. As originally formulated, Article 36(1)(b) did not confer rights onto individu-
In sum, I believe that the confusion in the majority opinion ultimately arises from the erroneous interpretation of Gonzaga. Contrary to the majority’s view that there must be an intent to confer a privately enforceable individual right, Gonzaga only requires a demonstration that the statute confers an individual right. See Gonzaga, 536 U.S. at 284 (“Plaintiffs suing under
§ 1983
The Supreme Court held in Gonzaga, “[o]nce a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by
The Vienna Convention is silent on private, judicially enforceable remedies for violation of individual rights. As such, the drafters did not express any intention to foreclose domestic remedies that would overcome the presumptive remedy under
Thus, Article 36(1)(b) confers individual rights that are presumptively enforceable under
Notes
206 F.3d at 895.The Treaty does not provide expressly for private damage actions. Rather, the plain words of the Treaty provide that the notification right “shall be exercised,” not that failure to notify should be compensated. Thus, the Treaty would not seem to contemplate private damage actions, and it would not be sound judicial policy to conjure legal theory that would expose individual officers to liability for breaches of international treaties. The decision on whether to attach individual liability for such violations should be left to Congress.