Gandara v. Bennett

sign provision permitted in fact under GANDARA, Hector a.k.a. Hector has no stand- prior ordinance Gandarasegredo, Plaintiff- it under the overbreadth challenge

ing to Appellant, Prime any other doctrine. See doctrine or Brentwood, Media, City Inc. v. Cir.2007) (reaching same Wayne BENNETT, Glynn Coun- observing that it had Sheriff “[i]f

conclusion ty, Doe, investigator, Glynn unknown produce billboard attempted County Office, Gary Moore, require- Sheriff height and size complied with Glynn County Attorney, De- rejection District ments, threatened with and was fendants-Appellees. challenged the other regulation under arguably there would provisions, ordinance No. 06-16088. in fact .... How- cognizable injury abe of such ever, bears no evidence the record Appeals, United States Court of development”).7 Eleventh Circuit. May II. sum, Maverick does not have stand- challenging this action

ing bring sign prohibitions

billboard and offsite sign ordinance because County’s prior provisions in fact under these injury by the court. It

unredressable ordinance on its face

challenge the entire injury in fact as it has suffered no

because Therefore, provisions. other to be of the district court is due

judgment

vacated, and the case will be remanded court with instructions to dis-

the district

miss the case. and REMANDED.

VACATED been denied under the size could have Maverick's claim that offsite 7. Nor does limitations, change applica- sign prohibition height is not content-neutral because all the any way. analysis in Maverick’s offsite signs limi- that exceeded those tions were for sign applications, the ordi- denied under tations. similarly signs, prohibition on offsite nance's Leon Fresco (Court-Appointed), Hol- LLP, Miami, FL, Knight, land & for Plain- tiff-Appellant. Readdick, damages civil in a G. Blacker- to seek United States

Terry Lee Steven Carter, federal court under 42 Brown, Readdick, U.S.C. Bumgartner, by, Watkins, LLP, Aaron W. & Strickland Background Factual GA, Mumford, Brunswick, for Defendants- Gandara, immigrant Uruguay, an from Appellees. 90-day entered the States on a United Loeb, Doug- Swingle, Robert M. Sharon temporary expired visa. After his visa Justice, Letter, Dept, of Civ. las N. U.S. 22, 2002, illegally June he remained Section, DC, Div., for App. Washington, 11, 2004, country. September On Gandara Curiae, Dept, of Justice. Amicus Glynn County, Georgia was arrested charged imprisonment. and with false He pled guilty years and was sentenced to five in prison years probation. and five following arrest Gandara claims his FAY, BIRCH and Circuit Before during pendency and of his criminal RODGERS,* Judge. and District Judges, Appellees did not inform proceedings, right Uruguayan him of his to contact the FAY, Judge: Circuit representation legal consulate and receive presented in this matter is pursuant Treaty. to Article 36 of the Gan- foreigner a who has been arrested whether Appellees dara also claims that subse- country alleges in this and a and detained specific request his that he quently denied provi- violation of the consular notification his a be allowed to contact consulate. As Convention on Consu- sions Vienna result, Gandara asserts these viola- (the “Treaty”) lar Relations can maintain him prevented obtaining tions from needed an action under U.S.C. 1983. The notify fami- consular assistance order question hinges on whether answer to this ly Uruguay of his arrest and members or not individual are bestowed improved legal rep- solicit funds obtain Treaty. Although we find issue resentation, deportation facilitate his strong arguments one with on both close ar- Uruguay prosecution, instead of and/or sides, ultimately we conclude the answer is range for his sentence to be served “no.” Georgia. than Uruguay rather Gandara declaratory judgment, compensa- sought (“Gandara”) Appellant, Hector Gandara tory damages, punitive damages and is a national who was arrested and alleged these violations. imprison- sentenced state court false rec- independent claims that while he was a After an review of the ment. He national, ord, Glynn adopted Report the district court detained Coun- Magis- ty (“Appellees”) Detention officers and Recommendation of U.S. Center of, recommended that provided Judge, informed him nor him trate neither with, complaint un- be dismissed on the to consular notification Gandara’s cognizable Treaty. appeal, grounds On Gandara ar- failed to state der re- erroneously analogized claim under 1983 and gues that the district court to that in a habeas complaint contending sought his lief Gandara dismissed objec- filed an Treaty grants corpus petition. him an individual Gandara * Florida, sitting by designation. Casey Rodgers, United States Honorable M. Judge District of District for the Northern validity criminal conviction or sen- Recommendation of his Report

tion to tence, a civil claim for things, pursuing that the but rather among other argued, money damages civil remedies. relied on Heck v. and other improperly district court inconsistency. legal There is no Humphrey, 512 U.S. (1994). pointed He out 129 L.Ed.2d 383 expressly This Circuit has not ad criminal challenging his that he was dressed the issue of whether the Vienna sentence, seeking or his but was conviction private rights Convention contains remedy and relief to damages civil in our courts remedies violation of his Vienna Convention by § na through individual judgment court’s affirm the district We in tionals who are arrested or detained for different reasons. albeit commented, country. previously We have however, private rights on the issue of Review Standard of the context of criminal cases and indicated grant of a motion to We review that we would follow the lead of the First novo, a claim for failure to state de dismiss and Ninth Circuits. See United States v. complaint “accepting allegations Cordoba-Mosquera, 212 F.3d construing them in the as true and (11th Cir.2000) (the First and Ninth Cir Spain plaintiff.” most favorable to the have indicated that Article does cuits Corp., Brown & Williamson Tobacco privately create rights). (11th Cir.2004). 1183, 1187 Today, practical judicial economy reasons, going specific we are to decide the Discussion presented.2 issue begin by noting that the dis We reading Treaty A text of the dismissed Gandara’s improperly trict court suggests scenario established by Heck v. Hum complaint relying on (1) steps: Upon would include several ar- phrey civil com to decide Gandara’s detention, rest and national Treaty plaint alleged violations of the proce- would be advised of the notification was barred because his criminal conviction (2) available, dures established and judgment and a in a had not been set aside individual would be asked whether or not validity case could affect the of his given desires notification to be he/she or sentence.1 Under the Su conviction (3) state, post the consular his/her preme ruling Court’s Sanchez-Llamas Depending upon by the decision made Oregon, individual, given notice would be or no (2006), 165 L.Ed.2d 557 a violation of the action taken. Vienna Convention’s 36 does not All necessarily require recog- reversal of criminal who have dealt with this issue Thus, Treaty’s opin language pream- conviction or sentence. our nize the ion, ble, claim being purpose Heck does not bar the which states that “the of such attacking privileges by made here. Gandara is not and immunities [created Heck, damages question by 1. Under to recover for harm called into a federal court’s issu- by Heck, caused actions whose unlawfulness would corpus.” ance of a writ of habeas invalid, make a conviction or sentence 486-87, U.S. at 114 S.Ct. 2364. plaintiff prove under 42 U.S.C. 1983 must conviction or sentence “has been Alternatively, simply we find that could appeal, expunged execu- reversed on direct inapplicable Heck is and remand the case to order, declared invalid a state tribunal tive the district court. determinations, authorized to make such or ” 36(l)(b) that Article .... is clear confers [I]t not to benefit individuals Treaty] is Relations, right. an Insofar as it is rele- on Consular Vienna Convention vant, language preamble in the who provision, In of this those pmbl. spite Convention, congression- the Vienna are individual find that there turn Senate, ratifying al intent of the reads: Article which contemporaneous position of the United au- competent requests, he so [I]f Department of State and the tra- shall, receiving State thorities of the do not préparatoires vaux undermine post the consular delay, without inform fact, interpretation. the contem- if, sending State within its consu- poraneous position of the United States district, lar a national of that State is Department of State and the discussion prison committed to or to arrested or 36(l)(b) prépar- of Article in the travaux trial custody pending or is detained supports my atoires conclusion that Ar- Any other manner. communication 36(l)(b) right. ticle confers an individual post by the consular addressed to dissent, Jogi, urges This like these arrested, prison, custody person rights presumptively individual en- by forwarded detention shall also be § forceable under delay. The said said authorities without person shall inform the con- authorities in arguments While the above favor of delay without of his under Treaty cerned individual under the are im- subparagraph. pressive, this we do not follow them for the following reasons. Relations, on Vienna Convention Consular 77, 24, 1963, 21 Apr. U.S.T. 596 U.N.T.S. First, treaty in the “context” of added). 36(l)(b) 261, The (emphasis art. preamble, cludes its Vienna Convention on Jogi Voges, v. 480 Seventh Circuit 31(2), 23, May the Law of Treaties art. (7th Cir.2007), concluded that 822 1969, 331, rely 1155 U.N.T.S. and we on way guarantee is worded in a 36 provide context for the terms of Article right by belongs conferred Article 36 36(l)(b) inter treaty because “a must be respective and not the to the individual object of its preted as whole That reasoned that governments. court preamble.” Corne purpose, including general language is a mistake to allow “[i]t (citing n. jo, 504 F.3d at 861 Vienna ambiguity to create an preamble art. on the Law of Treaties Convention specific statutory or text where (Third) 31(2); Foreign Re Restatement look to materi- none exists. Courts should 325(1) (1987)). pream The lations Law only if the preambles als like and titles is clear that ble to the Vienna Convention Id. ambiguous.” of the instrument is text intend to create indi the drafters did not that once a at 834. That court concluded signato rights. It states that the vidual demonstrated that a plaintiff has purpose of such ries that the “[r]ealiz[ed] right, an individual then the confers immunities privileges [created §by presumptively Treaty] individuals but is not benefit Doe, 835; University v. Gonzaga id. at of func performance ensure efficient 284, 2268, 273, 536 U.S. their posts on behalf of tions consular (2002). L.Ed.2d 309 on Vienna Convention respective States.” Relations, add (emphasis pmbl. dissenting opinion Consular ed). Indeed, has led this language Diego, 504 F.3d County San Cir.2007) (9th Conven to conclude that “the Vienna reasoning, also follows this court to create any intent tion itself disclaims by stating that: rights[.]” United States v. such from international treaties. Duarte-Acero, “[ijnterna- Thus, 296 F.3d 1281-82 general rule is that (11th Cir.2002); Maharaj v. Sec’y see also tional agreements, directly even those ben Corr., 432 F.3d Dep’t efiting private persons, generally do not (11th Cir.2005) (containing language clear private rights provide pri create or for a that the Convention did not create individ- courts, vate cause of action in domestic but Rodriguez, ual rights); United States exceptions there are respect both (re- Cir.2006) Fed.Appx. Cornejo, and remedies.” lying concluding on Duarte-Acero and (Third) (quoting at 859 Restatement Vienna Convention does not confer “[t]he Foreign Relations Law 907 cmt. a rights”). judicially enforceable individual (1987)). Furthermore, the use of the word 1(b) “rights” paragraph “arguably con Second, majority opin we find the on fers an individual the to consular Cornejo very persuasive. ion in As stated following assistance arrest.” Breard v. there: Greene, 371, 376, judicially Article 36 does not create en- (1998). paragraph 140 L.Ed.2d 529 But forceable Article 36 confers le- 1(b), does not address the nature of “his gal rights obligations how, rights” all, if they may be promote order to facilitate and consular Therefore, language invoked. must functions. Consular functions include in light purpose considered protecting the interests of detained na- Treaty and Article 36. See tionals, purpose and for that detainees (Third) (citing F.3d Restatement (if want) right they have the for the 325(1) Foreign § Relations Law and not consular post be notified their situ- ing that terms are to be construed sense, In ation. detained their context and in the provi- nationals benefit from Article 36’s treaty’s object Hence, purpose). right protect sions. But the nationals “rights” conferred under Article 36 are belongs party to States to the Conven- meant to facilitate the exercise consular tion; private right unambiguously no agree functions. We with the conferred on individual detainees such opinion Circuit, of the Ninth which summa they may pursue through that very position rizes well the that Treaty Cornejo, 504 F.3d at 855. further simply fails to confer that emphasizes that treaty to be “[f]or may judicially enforced. susceptible judicial enforcement it must both confer individual and be self- Third, the Vienna Convention does not executing.” Id. at 856. The Vienna Con- expressly provide private damage ac- self-executing vention is because it has the Instead, tions. plain “the words of the force of Congress domestic law without Treaty provide that right the notification having implement legislation. However, exercised,’ ‘shall be not that failure to noti- “all self-executing treaties do not necessar- fy compensated.” should be Cornejo, 504 ily provide availability pri- for the of such Therefore, F.3d at 861 n. 14. we conclude vate (quoting actions.” Id. at 857 Renkel Treaty contemplate does not pri- States, v. United 456 F.3d 643 n. 3 actions, damage vate “and it would not be (6th Cir.2006)). judicial policy conjure legal sound theo- though ry

Even treaties expose accord would individual officers to rights, enforceable individual most liability courts for breaches of international trea- accept a “presumption” against inferring ties.” Id.

Moreover, simply by holdings that “we are position United bound State, they which is enti- unless Department panels of earlier and until are States weight,” also reinforces “great by tled to en clearly overruled bane or the Su re- Department State has view.3 preme Swann Part Court.” v. S. Health only remedies affirmed “the peatedly ners, Inc., Cir. consular under failures of notification 2004). panels dealing earlier Our were po- diplomatic, the Vienna Convention criminal cases not claims under litical, under or exist between the states However, opinions, from those ... of an indi- right law [t]he international rule is the announced that the Vienna Con his consular vidual to communicate with confer vention does not enforceable indi sending state’s is derivative official Although our vidual the issues in to its protection to extend consular somewhat, analy earlier cases differed F.3d at 862 nationals[.]” exactly the same. That the law of sis is Li, States (quoting United our circuit.5 (1st Cir.2000)). Conclusion addition, prepara the travaux supports the Vienna tories of Convention reasons, judg- For these we affirm the “[Tjhere Department’s position: the State ment of the district court. indication intended is no AFFIRMED. ‘right’ notifi enforcement of to consular receiving courts of State.” cation in the F.3d at Even if the Cornejo, 504 RODGERS, Judge, specially District susceptible to preparatories travaux were concurring: im interpretations, it would be

different in the I concur result reached under law to create a prudent domestic agree majority because we are bound that is not ex privately concluded prior panel decisions have that found in the text.4 plicitly Rela- Convention on Consular Vienna (“the Convention”) not confer least, tions does lastly, certainly not And but individually rights rule is enforceable on detained prior panel court’s rule. This is our Stuart, failure to him of his United States v. defendant’s advise 3. See (1989) acknowledge L.Ed.2d 388 his a nation- 109 103 status as treaty provisions by (N.D.Ga., 2007) (“meaning al); (holding attributed Lopez to v. Wallace agencies charged with their the Government plaintiff "judicially no enforceable” that has to negotiation and enforcement is entitled VCCR consular assistance under the to great weight”). though plaintiff was con- even states that he his hav- victed and received sentence without law exercise of 4. Domestic controls the opportunity to Colombian ing an contact paragraph pursuant to 2 of Article 36. See Consulate). judgment in This district court Cornejo, part, in and re- Lopez was affirmed vacated part reaching without manded in that courts in our 5. We note several district (11th Cir.2008). Although Medellin at issue. the Ninth circuit have followed the lead of --, Texas, 170 -U.S. (N.D.Fla., v. Meggs See Gardner v. Circuit. (Medellin IT) (2008) dealt 2007) L.Ed.2d 190 (following majority and of districts specifical- questions, closely related the Court holding create an 36 does not resolving "whether ly it was not by plaintiff where stated individual enforceable 'self-executing' rights by plaintiff alleges the Vienna Convention is itself violation of civil 830 separately may subject judicial I write be- visions

foreign nationals.1 enforce- ment) majority County cause the and v. is whether is self-exe- (9th Cir.2007), F.3d 853 Diego, San cuting. majority on which the so decision (stating treaty to be sus- “[f]or relies, heavily many but, my address judicial ceptible to enforcement it must — view, aspects complex is- both confer individual and be self- all — case, presented sues several of added). executing.”) (emphasis Briefly subject which are the of considerable stated, a self-executing treaty is one that jurists scholarly among debate and com- has “automatic domestic effect as federal explain my mentators.2 write also to II, upon law ratification.” Medellin concern over elements of the rationale re- S.Ct. at n. It “immediately majority and Cornejo, pri- lied on directly binding on state and federal marily interpretation pertaining pursuant Supremacy courts text, Convention’s to conclude that Article “Conversely, Clause.” Id. at 1360. judicially confer does not enforceable ‘non-self-executing’ does not it- give self rise domestically An importance issue of threshold federal law. a treaty Whether such has (or any this case case that requires depends domestic effect upon implement- treaty’s court to consider whether a pro- ing legislation passed by Congress.”3 Id. Cir.2007) (Nelson, J., grants individually or whether it en- dissenting); Jogi Vog es, (7th Cir.2007); rights.” forceable Id. at n. 4. 480 F.3d 822 United States Li, (1st (en Cir.2000) banc) 206 F.3d 56 discussing prior 1. As the notes in C.J., (Torruella, concurring part and dis rule, panel finding the Eleventh Circuit cases also, Wu, senting part). Tim Trea grant private rights the Convention does not Domains, (2007); ties’ Gruber, Aya 93 Va. L.Rev. 571 context, arose in the criminal not under 42 Law?, Who’s Geneva 39 Ariz. Afraid of (or, § U.S.C. as Gandara also asserts (2007); Quigley, St. L.J. 1017 John Toward Statute, complaint, his under the Alien Tort Implementation More Judicial Effective 1350). Although § 28 U.S.C. there are obvi- Treaty-Based Rights, 29 Fordham Int’l L.J. presented ous differences between the issues Sloss, (2006); David When Do Treaties one, prior in the criminal cases this civil Individually Rights? Create Enforceable types analysis finding in both of cases the Supreme Court Dueles the Issue in Hamdan private right Accordingly, same. Sanchez-Llamas, 45 Colum. J. Transnat'l majority recognizes, law of this circuit (2006); Kadish, L. 20 Mark J. Article 36 is that the Convention does not confer indi- Vienna Convention on Consular Relations: A through vidual be enforced Consul, Right Search 18 Mich. J. (or 1350). (1997); Vázquez, Int’l L. 565 Carlos Manuel Treaties, Self-Executing Four Doctrines of Texas, -, 2. Medellin v. 552 U.S. (1995). 89 Am. J. Int'l L. 695 1346, (2008) (“Me 128 S.Ct. 170 L.Ed.2d 190 J., II") (Stevens, concurring) (Breyer, dellin words, 3.In self-executing treaty other a is J., dissenting, joined by Ginsburg, Souter and operates one that of itself without the aid of JJ.); 331, Oregon, v. 548 Neilson, U.S. any legislative provision. Sanchez-Llamas Foster v. 2669, (2006) (Gins 253, 314, 253, 126 S.Ct. 165 L.Ed.2d 557 27 U.S. 2 Pet. 7 L.Ed. 415 J., J., burg, concurring) (Breyer, (1829). dissenting, Supreme the explained, As Court has Souter, JJ., joined by Stevens and and Gins then, [self-executing] A treaty, is a law of J., Dretke, burg, part); Medellin v. 544 U.S. is, congress the land as an act of whenever 660, 2088, (2005) 125 S.Ct. 161 L.Ed.2d 982 provisions prescribe by its a rule which the ("Medellin I") J., (Ginsburg, concurring, private subject citizen or Scalia, J., (O'Connor, J., joined by part) be determined. And when such are Stevens, Souter, dissenting, joined by and jus- of nature to be enforced in a court of (he JJ.); Breyer, tice, People v. Mora State treaty that court resorts to the for a York, (2d Cir.2008); New 524 F.3d 183 Corne rule of decision for the case before it as it jo (9th County Diego, San 504 F.3d 853 would to a statute.

831 if 16 it the Accordingly, (finding unnecessary 2. even Article to decide n. 1356 rights, to if the question.). Unfortunately, 36 rise these courts gives self-executing not and does is Convention have assumed or held that the Convention implementing legislation not enacted have self-executing analysis is with little or no plaintiff a cannot enforce Congress treaty’s text.4 under law. our domestic those Recently, Supreme expressly the Court aware, I am the lower courts As far as noted, discussion, no virtually albeit question that have addressed yet .that it has decided whether grants individually Article 36 en whether self-executing. Vienna is See Convention rights, including forceable (stat- II, 4 Medellin 128 S.Ct. at 1357 n. Cornejo, have that case and concluded ing because the before the self-executing. is Convention Court was whether an International 828; ante, 504 F.3d at 855. (“ICJ”) Court of Justice decision was Jogi (accepting 480 F.3d at 830 also binding on United States courts under representations parties’ undisputed Protocol, Statute, Optional ICJ self-executing); the Convention is Charter, the United Nations it was “un- Pruett, 615, F.3d Breard v. necessary to resolve the Vienna whether (stat Cir.1998) (Butzner, S.J., concurring) itself ‘self-executing’ Convention is ing that Vienna Convention a self- “[t]he grants individually whether it in executing treaty provides to —-it so, rights.”). in dis- Even merely setting rather than out dividuals cussing to in ana- approach be taken obligations signatories.”); Faulder lyzing agreements, international (5th Cir.1996) Johnson, 515, that for Court stressed be same). (assuming the See also Sanchez- self-executing such status must be obvi- Llamas, J., (Breyer, 126 S.Ct. at 2694 dis treaty’s ous from the terms.5 Medellin Stevens, Souter, joined by senting, “[ijf II, JJ.) (stating at 1369 “it S.Ct. Ginsburg, (stating is common ground that the Executive determines that a should Convention self-execut Mora, 183, force, have ing.”); see also 193 n. domestic effect its own Cases, 580, 598-99, (1969). Rep. Report Money Head. 112 U.S. No. 91-9 See also 247, (1884). 28 L.Ed. A self-execut- Delegation Na- United States to the United ing treaty's provisions redressable Relations, tions Vien- Conference Consular id.; Whitney through the courts. See v. Rob- na, Austria, April 4 to March ertson, Foster, (1888); 27 U.S. at L.Ed. 386 analysis conducting In Medellin II 253, 7 L.Ed. Pet. Protocol, Statute, Optional ICJ whether contrast, non-self-executing treaty is in Nations were the United Charter self- nations; the nature of contract between executing, carefully at the Court looked their provisions not stand alone as law. Its does texts, searching for some indication that the legislation only pursuant can enforced agreements signatory intended the provisions. designed implement treaty's upon have effect domestic ratification. Addi- government enforced of the re- It is parties through tionally, although primarily spective to the instrument it relied on the political Whitney, diplomatic and means. See finding judgment text in that an ICJ did not of 194, 456; Foster, at U.S. S.Ct. law, binding constitute federal own force 314, 2 Pet. at L.Ed. 415. the Court also considered the treaties’ back- history, ground, negotiating drafting Instead, simply 4. most courts have referenced practice among signatory nations the in of the Executive Branch made statements II, reaching Medellin that conclusion. See at the time Convention was ratified that self-executing. is See S. Exec. 128 S.Ct. at 1367. the Convention distinct.”). implemented ‘in rights “analytically determination are mak[ing]’ treaty, by it ensuring prior of this circuit’s panel decisions and language plainly providing contains the fact that the parties in this case have enforceability.”) (emphasis domestic issue, add- not raised self-execution as an ed). As the explained, question Court further it is beyond is scope special only committing to an interpretive, concurrence. I therefore need not and do textual approach the courts can be not analytical venture into that thicket. they Nonetheless, enforcing treaty certain I submit that to avoid confu- through negotiating it— perhaps faulty analysis sion and on the President — through ratifying and the it—in- private rights question, courts should be Senate — tended to be enforceable as domestic law. careful to recognize that when finding Id. at 1361-63. This self-executing treaty provision cer- “self-executing” they are tainty separation must if the pow- exist declaring provision effect judicially ers doctrine is to be honored. Id. at enforceable and discharging any thus con- cern separation for the of powers.7 guidance

Given the Court’s Another central issue in this in- case II, likely analyses seems that future by volves the presumption treaty cases— still-open lower courts of the question followed many here and of whether the courts, Vienna Convention is self- other including Cornejo “[i]n- —that executing will scrutiny involve closer of the agreements, ternational even thosé direct- treaty’s text than it ly has been accorded in benefiting private persons, generally do past. I anticipate would that the anal private rights create provide for a ysis of the question, self-execution an ar private cause of action domestic courts.” itself, enough duous par task will be a Cornejo, 504 (citing F.3d at 859 2 Restate- ticularly (Third) murky difficult and exercise ment Foreign Relations Law of cases such as (“Restatement”) entail the distinct the United but a, related of whether the (1986)); ante, Con p. Comment at 828. grants individually vention enforceable Although I acknowledge the political sound rights.6 I, See Medellin U.S. and diplomatic applying reasons for a pre- 2088, 161 (O’Connor, L.Ed.2d 982 sumption that generally treaties do not J., dissenting) questions that the (noting private rights, create I nevertheless have treaty whether a self-executing and concerns about application of presump- it grants individually 36(l)(b).8 whether tion to Article I speaking should make clear that quired when on the issue of individual be- respect referring self-execution in this presumably am stage cause analysis at that judicial provisions redress of the (or Convention’s has been self-executing declared country, so), in the opposed courts of this contemplates assumed to be judi- obligation the individual state authorities' cial treaty’s provisions. enforcement comply treaty's provisions with the in the 8.It should be validity noted that the implementing legislation. absence of presumption questioned. has been Sanchez-Llamas, rejected 7. Some courts have the notion of (Breyer, 126 S.Ct. at 2697 J., in Article 36 based dissenting) on such (insisting pre- that "no such Mora, exists.”). sumption concerns. See Additionally, might some While the separation powers presumption Constitution’s find the difficult to reconcile undoubtedly a factor in the decision of longstanding with the treaty interpre- rule of treaty’s provisions whether a are self-execut- tation that holds where a admits of two II, ing, constructions, see Medellin one restrictive of and the degree judicial them, same of restraint is not re- other favorable to pre- the latter is

833 other, First, commonly partake there the accepted which nature of of law, exceptions presumption to municipal are the and which are capable Cor rights to and remedies. respect both private par- between enforcement of (citing 504 F.3d at 859 Restatement nejo, ties in courts ... country. the the of a). Indeed, 907, many oc Comment The constitution of the United States the has past Supreme Court casions places provisions such as these in the provide indi recognized may that treaties of category congress same as other laws I, 125 at S.Ct. vidual by its declaration that “this constitution (O’Connor, J., dissenting) (recogniz 2103 thereof, and the made in pursuance laws has ing Supreme “repeatedly Court and all made treaties or which shall be treaty-based rights of individual enforced authority made under of the United foreigners, allowing to assert claims them States, law supreme shall be treaties.”) arising (citing from Asa various then, A treaty, land.” is a law the of kura, 515, 340, 265 at 44 S.Ct. U.S. is, land as congress an act whenever of 187, n. Oregon, Kolovrat v. 366 U.S. 191-92 provisions prescribe a rule which (1961)). 922, 6, 196, 6 81 L.Ed.2d 218 S.Ct. rights private citizen or sub- of also States v. Alvarez-Ma United may And ject be determined. when chain, 655, 2188, 119 504 112 S.Ct. U.S. a to such nature be en- of (1992); Allen, L.Ed.2d 441 v. 331 Clark justice, a court that court forced 503, 1431, 1633 67 S.Ct. 91 L.Ed. U.S. resorts a rule deci- for Rauscher, (1947); 119 United States v. sion the case it as it would to before 234, (1886); 407, L.Ed. 7 S.Ct. U.S. a statute. Cases, 598, 5 Money Head 112 U.S. at (and Moreover, precedent S.Ct. Cases, 598, Money Head 112 U.S. support of and ex thus existence added); (emphases see also Re- S.Ct. long has been ception presumption) (“A private person hav- statement jurisprudence, having origi part our under ing against United States Head Cases: Money nated the venerable agreement assert an international primarily compact A between those in courts in the United States depends It for the independent nations. by way of appropriate jurisdiction either on the in- provisions enforcement of its defense.”). claim or governments terest and the honor of the Despite precedent cited above fail, its it. If these parties which are readily Supreme Court found which subject of inter- infraction becomes the individually treaty-based reclamations, negotiations national many appellate courts have de- rights, injured party so far as the chooses Instead, those the same. clined do redress, may in seek the end pre- stringently applied the courts have It by actual war. is obvious enforced sumption generally treaties do judicial courts have with all individually enforceable create nothing no give to do and can redress. language indicating required express treaty may provi- But a also contain contrary to overcome intent order rights upon the citi- sions which confer II, 128 S.Ct. presumption. See Medellin subjects one the nations zens “a number (commenting 1357 n. the territorial limits residing in 515, (1924); Stuart, 342, De 68 L.Ed. 1041 United States ferred. 268, 258, Geofroy Riggs, 10 S.Ct. 133 U.S. U.S. 103 L.Ed.2d Seattle, (1890). (1989); 33 L.Ed. 642 Asakura v. 834 Appeals not a presumed required treaty provide have it is “that Courts privately many

that not create en treaties do self-execution so talismanic express II, in the rights forceable absence of 128 1366. words.” Medellin S.Ct. at contrary.”) (citing Moreover, language to the United as Justice has pointed O’Connor 377, Emuegbunam, out, States v. 268 F.3d in analyzing the issue of individual (6th Cir.2001); States v. Jimenez- United rights the Court read has treaties with Nava, 192, Cir.2001); I, 243 F.3d similar lenience. (1st Li, 56, United States v. F.3d 60-61 (O’Connor, J., dissenting) (citing at Cir.2000) (en banc)-, (Panama) Goldstar stating cases that treaties which States, S.A. v. United 967 F.2d 968 individually enforceable were found (4th Cir.1992); Co. Transp. Canadian any special magic “do not share words. States, United 663 F.2d rights-conferring argu- Their language is Mills, (D.C.Cir.1980); Mannington Inc. v. ably no clearer than Vienna Conven- (3rd 1287, 1298 Congoleum 595 F.2d Corp., is, they specify judicial tion’s do not Mora, Cir.1979)); also see enforcement.”). recognize agree majority 201. in this Cornejo and case treaty interpretation high- that demands a have done the same. 504 F.3d at ly approach. my view, however, textual 859; ante, at 828. approach hyper-exacting that cannot sobe require specific as to or terminology presumption against finding That the in- phrasing treaty order to find that a (and dividual rights generally in treaties is creates individual rights enforceable when conveniently) applicable makes fre- plain from the language of the text it is quent byit in Article reliance on courts it, conveyed. clear that a right is As I see cases understandable. Less understanda- majority in this case—as well as Cor- imposed by many is the requirement ble nejo and Mora —have undertaken an treaty courts over- that the contain concrete and ly demanding search the text that specific incor- language enforcement in order to rectly focuses on the absence of specific find individual know While we language from enforcement as clear Medellin II the sine non of evidence qua treaty’s text, signatory that the interpretation is the states did not intend II, such rights see Medellin n. 11 create in Article It S.Ct. at 1365 36.9 seems (stating govern proper approach “the terms of me textual instead enforcement”), plain case also tells us for a interpretation spe- calls that insofar obligation question.10 as self-execution is concerned cific Cornejo acknowledges majority, 9. While expresses the textual ref Mora also concern provides rights” compelling erence to "his language lack of enforcement 36. argument rights, ("Nevertheless, in favor Corne See id. we think that the lack jo, rejects F.3d at nonetheless 36(l)(b) mention in the text of Article argument "says nothing because text foreign as to whether or how detained nation- how, rights' about the nature 'his at might als vindicate their asserted if add all, they may (emphasis be invoked." Id. suggests least that the drafters did not intend ed). shares the same concern. individuals.”). upon directly to confer Ante, Additionally, although Mora specific obligations Looking does obligation, address the in Article at the the court should 36(l)(b), obligation decides that the language court decide whether the text’s notify require detainee receiving of his not drafters intended to an does exclusively because the text to take action directed towards correspondingly obligation to the as a refer detainees is of a which nature to be Mora, "right” of the individual. country enforced the courts of this and to and the our Consistent courts could look for a rule 36(l)(b) personal rights by three of virtue of imposes obli- as source Article (1) the inform receiving on States: gations self-executing character. But the trea- foreign national’s arrest consul of an ty goes imposing obligation to further — (2) detention, requests; if the national so inform the individual of his the from a detained forward communications treaty.”). The focus the obli- exclusive delay; the consulate without national 36(l)(b)(3) expressed in is gation Article on (3) detained national of his and inform the detainees; foreign turn entitles 36(l)(b) Article without de- rights under availability them to informed of the be Re- lay.11 on Consular Vienna Convention notification, independent consular added). 36(l)(b) lations, (emphasis art. Breard, rights of the consulate.13 See obligations, paragraph The third of these (noting at that U.S. (l)(b)(3), in this primary is the focus case.12 arguably Article 36 confers in- (l)(b)(3) the receiv- Paragraph obligates I, see also Medellin rights); dividual person concerned ing State to “inform (O’Connor, J., at 125 S.Ct. 2088 U.S. this sub- delay without of his under dissenting) article (explaining “[i]f on paragraph.” Vienna Convention Con- conferred no on detained indi- 36(l)(b) Relations, (emphasis sular art. vidual, its ‘inform’ detain- command to added). as and Undoubtedly, meaningless.”); ‘his rights’ might ee of be serves to Cornejo recognize, obligation McConnell, Pielage see also 516 F.3d But is facilitate consular functions. Cir.2008) (noting apparent language goes that this equally “[tjreaties, statutes, like be con- should separate further and secures a entitlement so that no words are treated as strued only, foreign benefit of the national redundant, being meaningless, or mere ie., delay without right be informed (citation omitted). such, surplusage.”) As his under Convention. 36(l)(b)(3) foreign Article treats detained I, at 125 S.Ct. 2088 Medellin merely than nationals as far more intended (O’Connor, J., dissenting) (stating “[i]f beneficiaries; rather, its unmistakable fo- 36(l)(b) imposed only two obli- Article is on detained nationals cus signatory notify countries —to gations on right and to be in- themselves their correspondence— and consul forward require specific more lan- then not formed.14 To Medellin could invoke Mora, I, disagrees. Mora 524 F.3d 194. 125 S.Ct. at 2103 decision. J., specific (O’Connor, the absence of refer- dissenting) It considers (quoting Head.Mon- finding "right” word fatal to an Cases, 598-99, 247). ence ey U.S. right individually enforceable in Article 36. above, obligation’s my view the As stated Although the Convention itself does not do gives is rise to without focus what so, purposes identify I these for discussion hyper-exacting search of the need for a word obligations subparts of three Article obvious from its the text for what otherwise {i.e., (l)(b)(l), (l)(b)(2), 36(l)(b) paragraph face. (l)(b)(3)). question precisely I how detainees complains was noti- 12. Gandara that he obligation im- would beneficiaries 36(l)(b) rights at the time of fied of his Article 36(l)(b)(3) provision posed as this arrest, 36(l)(b)(3). his violation Article whatsoever of consu- makes no mention later, learning complains 36(l)(b)(l) after He also obligations in Article late. The hand, (2), implicate another that he had the directly from source the other consul, consulate; prison accruing refused his contact his officials to the conceded- benefits so, request merely benefi- ly, to do in violation of Article the intended detainees Indeed, 36(l)(b)(l). obligations. I view these ciaries of believe, guage clarity, face of such 859. The court reasons that “[tjhis ordinary principles therefore, under language, unwarranted must be consid- treaty interpretation. Convention, See id. More- ered what the 36(l)(b)(3) over, nature, by Id.; the its Article Article are all about.” see also readily ante, obligation one that can be en- at is 827-29. The court then turns to by (stating forced a court. See id. that “if history the Convention’s and context and provide, example, a statute to were for that it clearly determines contains no indi- that inform a arresting vidually authorities ‘shall rights.16 enforceable without person delay detained of his I objection have no Cornejo’s to resort counsel,’ question to I whether more would to preamble the Convention’s and Article be required could in- before defendant 36’s purpose statement for context. See complain voke that to in court if statute he Vienna Convention on the Law of Treaties informed.”)15 had not been so 31, May 23, 1969, art. 1155 U.N.T.S. 33 Despite unambiguous language (noting the of that the “context” of a treaty in- 36(l)(b)(3), Article Cornejo finds the text preamble). Nonetheless, its cludes I am subject to be than clear on less of weight concerned with the accorded to “says because it nothing in provisions light plainness these how, rights’ about if First, the nature ‘his or interpretation the text.17 an all, they may invoked.” preamble as providing dear indication that provisions good examples these two as by tutes violation of these entitlements obligations self-executing are that detaining sense authority.”). they fully that obligations executed States, receiving with which those States states, many respects 16. As treaties comply at political must the risk of conse- with "come their own rules of the road.” not, however, quences; they private do create Cornejo, 504 F.3d at n. 9. recognize 858 I by individuals in our interpreted that treaties are good to be "in I, courts. See Medellin 544 U.S. at ordinary faith accordance mean- J., (O'Connor, dissenting). S.Ct. 2088 ing given to be to the terms of the context object their and in the of its and 36(l)(b) 15.The view text of Article 325(1). Also, purpose.” Restatement I do conveys undeniably individually an enforce- treaty's negotiation not that a able on detained nationals is " drafting history postratifica- as well as 'the Sanchez-Llamas, by many. shared ” understanding’ signatory tion nations J., (Breyer, joined dissenting, at 2691 " may be interpreta- considered to as 'aids Souter, Stevens, JJ.) Ginsburg, (taking ” II, (cita- tion.' Medellin 128 S.Ct. at 1357 position gives judi- that Article 36 to rise omitted). noted, however, previously tions As cially rights); enforceable individual qua interpretation sine non of is the I, (O'Connor, 544 U.S. at 125 S.Ct. 2088 II, treaty’s text. See Medellin 128 S.Ct. at J., Jogi, dissenting); (stating 480 F.3d at 833 n. 11. view, our this text "[i]n satisfies the strict clarity Supreme test of that the set Court forth courts, Many including in Gonzaga University’’))Cornejo, other Eleventh F.3d Cir J., (Nelson, panels, large part cuit have dissenting) relied in (stating that on the "[i]t 36(l)(b) preamble is Convention's clear that Article to conclude confers an indi- that Arti Li, (Torruella, right.”); vidual cle 36 does not 206 F.3d at 72 confer enforceable individual C.J., concurring part, dissenting part) United States v. Duarte-Ace ro, (stating Cir.2002); have F.3d difficulty that "I some envision- 1281-82 ing Maharaj Corr., possible language Sec’y how it Dep’t to frame (11th Cir.2005); unequivocally pro- more establishes United 36(l)(b) Jimenez-Nava, belong 197; tections of Article indi- States 243 F.3d at national, vidual and that the failure Emuegbunam, United States v. 268 F.3d at promptly notify of these consti- him/her 36(l)(b) privi- read in whose to indi- order to understand give not rise does referenced, being leges and immunities are foreign nationals for detained vidual “privileges and immuni- understand Paragraph four pause. gives reason in paragraph per- ties” limitation four to signatory that the preamble provides strictly tain consular and staff. officials the terms of the Conven- agree to This construction makes most sense of such purpose that the “[rjealizing tion considering preamble that the contains no immunities benefit privileges explicit implicit reference non-consu- per- efficient to ensure the individuals but individuals, late such detained posts functions consular formance of nationals, “rights.” nor does it mention Vienna respective their States.” behalf of Thus, preamble fairly I believe the be can Relations, pmbl. on Consular Convention read the in- simply reflecting as drafters’ in isolation leaves Reading language this privileges tent not to extend certain and the Convention was little doubt that individually,18 to immunities consular staff “privileges and immu- to intended bestow the matter of individual leaving There is more to nities” on individuals. detained nationals unaddressed. however, preamble point, and the on begins and ends interpretation purpose also relies on the state- incomplete. four is The paragraph 36(1) ment of Article as “unmistakable” and speaks privileges first of preamble 36(l)(b) rights in evidence that the Article three, in which paragraph immunities solely “to facilitate the exercise meant agree to signatories the states that the relating of functions to consular “[bjelieving that the terms of Convention sending nationals of the State.” convention consular an international Further, Cornejo 504 F.3d at reasons 860. immunities relations, would privileges and in obligations that because the of development also to the contribute 36(l)(b) ability sending “enhance nations, irrespec- friendly among relations nationals,” protect their States to assist or differing of their constitutional and tive entirely “belongs to right of assistance added). systems.” (emphasis Id. social general As sending Id. State.” “privileges immunities” in The term and matter, pur- readily agree I that the basic adjec- by the three is modified paragraph pro- and pose Article 36 is to facilitate “consular,” clearly identifying the tive thus functions, which functions mote consular being immunities” de- “privileges and protecting the interests of detained include scribed; privileges “such and term Supreme at 855. As the nationals. Id. however, in back four refers paragraph immunities” there is no explained, Court has para- 36(l)(b); in previously mentioned “right those under Article assistance” para- exists, right Thus graph right three. “consular” if a it is the to notifica- Sanchez-Llamas, the “consular graph three modifies tion. 126 S.Ct. at also right is Regardless and immunities” referenced whether privileges assistance, am Accordingly, reading or to I trou- paragraph notification four. right that the be- preamble and bled conclusion paragraphs three four longs strictly sending be- must conjunction, they as I believe officers, Delegation mem- Report rather than for benefit of the United States families, employees, individu- and as Consular bers of to the United Nations Conference on Delegation Report als.” of the United States with this understand- Relations consistent on Consular ing. to the United Nations Conference ”rest[s] Greene, 371, 376, Breard 523 U.S. Doe, University v. 536 U.S. 122 S.Ct. (1998) (per 140 L.Ed.2d 529 (2002). 2268, 153 L.Ed.2d Had Gan curiam) (stating “arguably that Article 36 brought directly dara his claim under the an Convention, confers on to right consu Vienna a seeking remedy lar following within its assistance text would make sense. arrest” then Sanchez-Llamas, proceeding 126 S.Ct. at to determine that habeas claim Here, however, it does not make was by procedural sense barred state default Cornejo Treaty appreciate case, Ias in Gandara’s tion. Eleventh Circuit. it, may trump the either see is whether plain language May of Article 36. prior panel on the summary, based affirming in the result

rule I concur brought pur- claim of Gandara’s

dismissal (and U.S.C.

suant to U.S.C. a Vienna Although procedural nia's default rules to does not mention Article 36 context). enforcing Convention claim in habeas specific remedy or means of (l)(b), arguably subparagraph it does noted, may language, 22. As have issues raised con ''remedy-type” others contain may have national signatory nection Article 36 suggest an intent only they may significance because affect judicially enforceable. As the article but also nationals detained on our soil Supreme explained, Conven "[t]he Court has implications U.S. citizens de specific have prescribe remedies tion does not Sanchez-Llamas, Rather, expressly tained abroad. violations Article J., dissenting, (Breyer, at 2692 implementation Article 36 leaves the JJ.) Stevens, Souter, Ginsburg, joined by Rights 36 are to under Article domestic law: States, (observing stated in conformity that the United as with the laws and 'be exercised in ” Foreign Department's Manu receiving Affairs regulations San the State State.’ Indeed, al, chez-Llamas, long importance of Article stressed at 2678. has 126 S.Ct. provisions U.S. who have been Supreme very lan 36’s citizens has to this Court referred borders); procedural imprisoned our holding rules arrested or outside guage in that state Netherland, Aceves, Murphy v. post-conviction William J. operate to the can bar (1998) 36(1), (noting L. 89-90 San Am. J. Int'l of violation of Article assertion chez-Llamas, (holding the needs of consular access serves 126 S.Ct. at 2687 also, things, among en applica other preclude the nationals the Convention does not Breard, safety bars); governments to monitor the procedural ables tion of state abroad). (applying Virgi- fair treatment of their citizens U.S. at notes the Convention It Austria, Relations, Vienna, April 4 to March upon premise privileges immuni- reasons, governmental granted ties are import it ignores cause the obvious because Gandara seeks to vindicate the 36(l)(b)(3), plain language in Article which violation of his Article 36 not via the already discussed. have Convention itself through but instead arguably 1983 or supply require I also have over the concern remedy.20 Gonzaga, 536 U.S. at seemingly imposed by Cornejo ment 284, 122 S.Ct. 2268. majority in this an express case that remedy must exist order to Additionally, requiring the to con mind, right.19 my find an individual To express remedy tain an in this case seems a plaintiff private where not asserted a has contrary Gonzaga; it also seems con particular of action under a statute trary approach to the taken in Breará and (or, case, treaty), analysis Sanchez-Llamas, in which the first Court private right of whether a exists should be assumes the private right existence separately analysis conducted from the proceeds under the Convention then remedy whether a for the violation of that a remedy consider whether is available. generally, Gonzaga available.

Notes

notes "the does not I note would that I the concern provide expressly private damage Cornejo actions. majority raised and the over "con- Rather, plain Treaty provide words of the juring] legal expose a theory might indi- exercised,’ right that the notification 'shall be officers, liability vidual for breaches of in- compensated.” not that the failure should be Cornejo, ternational treaties.” 504 F.3d at 861 (quoting n. 14 dis- n. speculative any 14. Due to the nature of Lombera-Camorlinga, sent in United States v. injury resulting right from the violation a (9th Cir.2000)). Relying 206 F.3d to notification conferred under Article Cornejo, majority sig- finds it likewise 36(l)(b), however, injury even if the were nificant that the not Convention does contem- ante, compensable, I do not envision the availabili- plate private damage actions. ty damages injunc- of more than nominal 827-29. Jackson, tive relief. See Slicker v. (11th Cir.2000) § (stating "a and the conclude that plaintiff whose constitutional are violat- bring Gandara damages cannot a claim for ed is damages entitled to receive nominal § under 1983 for violation of the Convention produce even any if he fails to evidence of judicially because he has no enforceable indi- ...."); compensatory damages also see San- right special vidual to do so. In this concur- chez-Llamas, 126 S.Ct. at 2682 only I rence have addressed that, (suggesting assuming individually an en- individually whether Article 36 confers en- exists, right forceable under Article 36 in the rights, remedy forceable whether a not for the proper circumstances a court could make alleged violation of Article 36 exists under "appropriate accommodations” to ensure that (or 1350). § § right Given that the a criminal defendant secured the benefits of 36(l)(b), exist, extent it is a relief). through injunctive consular assistance right opposed right to a notification course, assistance, brought against Of Sanchez-Llamas, all cases an see 126 S.Ct. at discussion, individual officer infra, under 1983 for violation it is difficult to imagine qualified immunity what Convention relief could be fashioned would violation, remedy relief, provide beyond injunctive a many a defense to suit and in cases even under our regard, finding domestic law. In this preclude liability. would 1350). Sanchez-Llamas, In of the concerns outlined rules); see also above, however, deciding, respectfully I do not oth- without (assuming, at 2677-78 join majority.22 judicially en- erwise creates that the Convention procedur- applying before forceable asserted habeas al bar rule to claims event, in this case In petitioner). relying on the plaintiff action, I under- his itself for there is a question of whether stand the matter alto- remedy separate be a legal question of gether from the whether KOOLERS, INC., Florida BIG TOP view, my conflating Brienza, exists.21 Corporation, Nicholas C. analyses the issues. two confuses Plaintiffs-Appellants, matter, notwithstanding all of As final concerns, I should note foregoing SNACKS, INC., a New CIRCUS-MAN propo- no issue with the well-settled take Corporation, York Defendant- Department’s posi- that the State sitions Appellee. and that “great weight” tion is entitled No. 06-16354. may be consult- prépamtoires the travaux treaty interpreta- involving in matters ed of Appeals, United States Court

Case Details

Case Name: Gandara v. Bennett

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 22, 2008

Citation: 528 F.3d 823

Docket Number: 06-16088

Court Abbreviation: 11th Cir.