Second Circuit rules that Article 36 of Vienna Convention does not confer judicially enforceable right on foreign arrestee to be informed that he could obtain assistance from his consular officials which he could enforce through litigation under Alien Tort Claims Act or Convention itself
Ricardo de los Santos (Plaintiff) was a citizen of the Dominican Republic whom New York authorities arrested in 1992 and charged with attempted robbery. He pled guilty and the judge sentenced him to six months' in prison and five years' probation.
Three years later, Plaintiff filed a million dollar suit pro se in a New York federal court under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350. He alleged that the local prosecutor and City Police had violated Article 36 of the Vienna Convention on Consular Relations [21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S 261; in force for U.S. Dec. 24, 1969] by failing to tell him that he could contact the Dominican consulate for assistance. The District Court dismissed Plaintiff's suit sua sponte under Civil Rule 12(b)(6).
Plaintiff then obtained counsel, and appealed the dismissal. He contended that Convention Article 36 does confer an justiciable right to be told about the availability of consular notification; and that federal courts may enforce this right not only under ATCA, but also under the civil rights act (42 U.S.C. Section 1983) and directly under the Convention itself. The U.S. Court of Appeals for the Second Circuit, however, affirms.
The Court points to the split between the U.S. Courts of Appeals on these questions and to the fact that the Supreme Court has not yet authoritatively answered it. (Noteworthily, four of the nine current Justices have expressed their agreement with Plaintiff's theory in Sanchez Llamas v. Oregon, 126 S. Ct. 2669, 2677 78 (2006).
In the Head Money Cases, 112 U.S. 580 (1884), the Supreme Court declared that a treaty "is primarily a compact between independent nations." Id. at 598. As such, "[i]t depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it." Id.
The Head Money Court also acknowledged that treaties may also create individual rights "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. Noting that the Supremacy Clause places international treaties on the same legal footing as federal law, the Court concluded that "[a] treaty, then, is a law of the land as an act of [C]ongress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined." Id. at 598 599.
"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." Id. at 599.
The Circuit Court then observes that it must resolve the key question as a matter of treaty interpretation. In a textual analysis of Article 36, the Court observes that the Convention refers to the detaining state's obligations to, upon request, inform a foreign detainee's consulate of the detention and allow the detainee to contact his consulate as "rights" about which the authorities must notify the detainee.
Nothing in the text indicates, however, that the detaining state's obligation in Convention ¶ 1(b) to inform the foreign national "without delay of his rights under this sub paragraph," is an individual right. The Convention makes no mention of whether and how individuals are to enforce the specified rights contained therein. The Court concludes that the rights Article 36 does confer are a means of implementing the treaty obligations as between the signatory States.
The context of the Convention supports this conclusion. The first clause of ¶ 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 the sending State." Furthermore, ¶ 5 of the Conventions' preamble states 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."
The motivating principles of the Convention are clearly those governing the relations of States inter se. It protects state level concerns for the "sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations." In the Court's view, these passages suggest that Convention rights belong to, and are enforceable by, the States parties to the Convention through their official representatives.
Moreover, the Optional Protocol to the Convention vests compulsory jurisdiction over disputes arising under the Convention in the International Court of Justice (ICJ) which handles disputes between nations. The Court points out that individuals can benefit from Convention rights other than by private actions for damages. It then suggests four examples: "First, states parties can safeguard the rights in the Convention (and protect their nationals) through "negotiations and reclamations.' See Head Money Cases, supra at 598.
Second, the reciprocal nature of the Convention provides a natural incentive to receiving states to comply with its terms. For instance, in an action brought by the federal government, the U.S. can sue state and local governments to ensure compliance with the Convention. Third, the lack of any privately enforceable right to damages for a violation of Article 36(1)(b)(third) would not prevent a domestic court or magistrate from inquiring whether anyone has informed a foreign national before it that he or she may contact his consulate [at that point], thus satisfying the notice obligation. Finally, a detained alien could petition officials of a detaining authority, including where appropriate, the courts, to comply with the obligations set forth in Article 36.
The Court notes that the Constitution assigns the mechanisms for establishing and enforcing international treaties to the Executive and Legislative branches. There is, therefore, a strong presumption against the courts' enforcing of international treaty obligations at an individual's behest.
Moreover, the Court says, its precedents and those of the other Courts of Appeals and the Supreme Court strongly support the principle that, in the absence of express language to the contrary, treaties do not create privately enforceable rights for private individuals. The Court concludes by noting that "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 . . . That they chose not to signal any such intent counsels against our recognizing an individual right that can be vindicated in a damages action in this case." [Slip op. 25 26].
Next, the Court bolsters its conclusion by referring to the position of the Department s of State and Justice, which jointly submitted an amicus curiae brief on behalf of the U.S. in support of New York. Following Medellin v. Texas, 552 U.S. ______ (2008), the Court notes that it places "great weight" on the Executive's interpretation of a treaty and finds Plaintiff's opposing arguments unpersuasive.
The Court then addresses ICJ jurisprudence which suggests that the Vienna Convention does create privately enforceable rights. The Court first notes that "[i]n contrast to the "great weight' we must accord 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 v. Greene, 523 U.S. 371, 375 (1998). 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." [Slip op. 28 29]
The Court is not persuaded by the ICJ's assertion in Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [31 March 2004] ICJ (available at http://www.icj cij.org) that "the individual rights. . . under ¶ 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" [Slip op. 29]. The ICJ offers no rationale to support its conclusion.
To determine the intentions of the drafters, the Court then considers the travaux preparatoires of the Convention. Finding that the travaux offer no clear guidance on the issue, the Court concludes that in any event, "scattered examples drawn from the travaux to support Plaintiff's position would not defeat the deference ... we owe to the clear and consistent views of the United States." [Slip op. 31].
The Court next considers whether an alleged violation of Article 36(1)(b)(third) gives rise to a claim pursuant to the ATCA for a breach of customary international law: "To form the basis of a ATCA 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 v. Alvarez Machain, 542 U.S. 692, 725 (2004). These paradigmatic examples involve "offences . . . principally incident to whole states or nations and not [to] individuals seeking relief in court.' Id. at 720. Plaintiff has pointed to no sources which evince support for the specific customary international law tort proposed here. ..." [Slip op. 31]
Citation: Mora v. People of the State of New York, 524 F.3d 183 (2d Cir. 2008).
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