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09. U.S. amicus curiae brief to the U.S. Court of Appeals for the Seventh Circuit in Jogi v. Voges


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No. 01-1657

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

TEJPAUL S. JOGI,

Plaintiff-Appellant,

v.

TIM VOGES, RON CARPER, DAVID MADIGAN,

and JOHN PILAND,

Defendants-Appellees.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

_______________

BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR REHEARING OR REHEARING EN BANC

_______________

JOHN B. BELLINGER, III PETER D. KEISLER

Legal Adviser Assistant Attorney General

Department of State

Washington, DC 20520 JAN PAUL MILLER

United States Attorney

DOUGLAS N. LETTER

(202) 514-3602

ROBERT M. LOEB

(202) 514-4332

SHARON SWINGLE

(202) 353-2689

Attorneys, Appellate Staff

Civil Division, Room 7250

Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

No. 01-1657

_______________

TEJPAUL S. JOGI,

Plaintiff-Appellant,

v.

TIM VOGES, RON CARPER, DAVID MADIGAN,

and JOHN PILAND,

Defendants-Appellees.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

_______________

BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR REHEARING OR REHEARING EN BANC

_______________

The issues presented in this case are of exceptional importance, and warrant rehearing or review by the en banc Court. The panel’s decision permits foreign nationals to enforce the Vienna Convention in U.S. courts, by bringing damages claims against law enforcement officials. The panel holding conflicts directly with the holdings of two other courts of appeals on a question on which the Supreme Court has just granted certiorari — whether the Vienna Convention confers privately enforceable rights. Beyond that, the panel has held that the Convention confers a private right of action for damages, an extraordinary conclusion without support in the Convention itself or our domestic law. The panel decision threatens serious harm to this country’s foreign relations and law enforcement. The United States, as amicus curiae, urges this Court to grant rehearing or rehearing en banc.

STATEMENT OF INTEREST

Our Constitution vests primary authority in the President to enter into and implement treaties with foreign nations. See U.S. Const., art. II (granting Executive power “to make Treaties” with advice and consent of Senate and to “take Care that the Laws be faithfully executed”). The Senate also plays a role in treaty-making, and Congress as a whole has shared authority under Article I over foreign policy and foreign affairs, including the authority to enact laws to implement or enforce a treaty. See Missouri v. Holland, 252 U.S. 416, 432 (1920). The President, with the advice and consent of the Senate, has entered into the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, which requires member States to notify foreign nationals detained by authorities that they may contact consular representatives for assistance and may also request that consular representatives be informed of their detention.

In the view of the United States, enforcement of the Vienna Convention is carried out through the usual means of diplomatic negotiation and political intercession. Congress has enacted no law to implement the Convention through a private right of action for damages. The panel nevertheless held that the Vienna Convention’s consular notification provision creates rights that are enforceable by individuals through tort actions in U.S. courts. The panel’s holding raises two significant legal questions, both of which warrant further review.

The first issue raised is whether the Vienna Convention creates individually enforceable rights. That issue is extremely important, and the Supreme Court has granted certiorari to address it. See Sanchez-Llamas v. Oregon, No. 04-10566 (U.S. cert. granted Nov. 7, 2005), and Bustillo v. Johnson, No. 05-51 (U.S. cert. granted Nov. 7, 2005). This Court’s further review of the issue is also appropriate.

This litigation raises a second and independent question whether any individual rights created by the Vienna Convention may be enforced in a private money damages action against state or local officials. Even if the Convention were interpreted to confer privately enforceable rights, there would be no basis for concluding that it creates a private civil action against law enforcement officials for money damages. This issue also warrants additional review by the Court.

STATEMENT OF THE ISSUE PRESENTED

Whether a foreign national may sue domestic law enforcement officials for money damages based on their alleged failure to provide consular notification information pursuant to the Vienna Convention on Consular Relations.

STATEMENT

1. The Vienna Convention on Consular Relations governs “consular relations, privileges and immunities” between signatory States. Vienna Convention, preamble. The Convention expressly states that it is intended to promote “friendly relations among nations,” and that the privileges and immunities it confers are “to ensure the efficient performance of functions by consular posts on behalf of their respective States” — but “not to benefit individuals.” Id. Consular functions recognized under the Convention include “protecting * * * the interests of the sending State and of its nationals”; “helping and assisting nationals * * * of the sending State”; and “representing or arranging appropriate representation for nationals of the sending State” in order to “preserv[e] the rights and interests” of nationals not yet able to assume their own defense. Vienna Convention, Art. 5.

Article 36 of the Vienna Convention governs communications between a foreign consulate and that country’s nationals. In relevant part, the Article provides that, “[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State,” consular officers will be free to communicate with and have access to their own nationals, and those nationals will be free to communicate with and have access to consular officials. ¶ 1(a). Article 36 directs receiving state officials to inform consular officials, at the request of a foreign national, that the national has been arrested or taken into custody, and also to “inform the person concerned without delay of his rights” to have his consular officials notified and to communicate with them. ¶ 1(b). Finally, the article gives consular officials “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.” ¶ 1(c).

2. Tejpaul Jogi is an Indian citizen who pleaded guilty to aggravated battery with a firearm in Champaign County, Illinois, and served six years in prison before he was removed to India. While in prison, Jogi filed a pro se complaint against local law enforcement agents and a state prosecutor, seeking compensatory and punitive damages of $10 million for their alleged failures to inform Jogi pursuant to the Vienna Convention that he could contact the Indian consulate for assistance and/or to contact the consulate on Jogi’s behalf.

The district court dismissed Jogi’s case, but a panel of this Court reversed. The panel held that Jogi has individual rights under Article 36 of the Vienna Convention that are enforceable in a private damages suit in a U.S. court.[1]

ARGUMENT

THIS CASE MERITS REHEARING OR

REVIEW BY THE EN BANC COURT

This case presents two issues of extraordinary importance that merit rehearing by the panel or, in the alternative, review by the full Court. The panel has incorrectly read into the Vienna Convention an implied private right of action for damages to enforce the Convention’s provision on consular communications. The panel’s decision could have serious ramifications for treaty enforcement and, more broadly, our nation’s foreign relations. The holding could also harm state and local law enforcement. Further review is needed to protect these crucial interests.

1. It is the longstanding and firm position of the United States that Article 36 of the Vienna Convention may not be enforced in a money damages action brought by an aggrieved individual in a U.S. court.

Treaties are negotiated against a background understanding that violations are “the subject of international negotiations and reclamation,” not judicial redress. See Head Money Cases, 112 U.S. 580, 598 (1884); see also Charlton v. Kelly, 229 U.S. 447, 474 (1913); Whitney v. Robertson, 124 U.S. 190, 194-195 (1888). Although it is possible for a treaty to create judicially enforceable private rights, such treaties are the exception rather than the rule, and must overcome a presumption that enforcement will be exclusively through political and diplomatic channels. See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33, 38-39 (D.C. Cir. 2005), cert. granted, No. 05-184 (U.S. Nov. 7, 2005); United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001); Garza v. Lappin, 253 F.3d 918, 924 (7th Cir.), cert. denied, 533 U.S. 924 (2001).

The text, history, and structure of the Vienna Convention show that it was not intended to create a right of private judicial enforcement. Although the panel asserted that private enforcement must have been intended because Article 36 confers rights on individuals, Slip op., at 21-22, the Supreme Court has made clear that the fact that a treaty or international agreement confers a direct benefit on an individual does not establish that it was intended to create a private judicial remedy. See, e.g., Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 442-443 & n.10 (1989) (conventions providing that merchant ship “shall be compensated for any loss or damage” and that “belligerent shall indemnify the damage caused by its violation” did not create private judicial remedy); Johnson v. Eisentrager, 339 U.S. 763, 769, 789 & n.14 (1950) (1929 Geneva Convention not judicially enforceable by aggrieved individual, even though it contained protections for individuals); see also Hamdan, 415 F.3d at 40; Holmes v. Laird, 459 F.2d 1211, 1222 (D.C. Cir.), cert. denied, 409 U.S. 869 (1972).

Furthermore, the text of the Vienna Convention explicitly provides that the privileges and immunities it confers are “not to benefit individuals.” Vienna Convention, preamble (emphasis added). The panel suggested that this limitation applies only to privileges and immunities conferred on consular officials, but in fact it reflects the broader point that the entire treaty, including Article 36, is intended to enhance the ability of States to carry out their consular functions rather than to establish individual rights. The “right[s]” explicitly conferred on consular officials by Article 36 plainly are not intended to benefit or create rights in individual officials, and the mere fact that Article 36 confers parallel “rights” upon detained foreign nationals is not a basis for concluding that those nationals are granted individual rights that must be privately enforceable in court. Rather, the “rights” conferred upon both consular officials and detained foreign nationals are for the same purpose: to “facilitat[e] the exercise of consular functions relating to nationals of the sending State.” Article 36, ¶ 1. There is no indication in the text or the history of the treaty to support private enforcement in the courts of a signatory State.

The structure of Article 36 — under which the first protection extended is to consular officials, who act on behalf of the foreign State — confirms that its function is to enable a foreign state to protect its nationals rather than to create freestanding individual rights. As a practical matter, furthermore, a foreign national’s rights are necessarily subordinate to his State’s rights, because it is entirely up to that State whether to respond to any request for assistance. A foreign national plainly could not sue in a U.S. court to force consular officials to take action. See United States v. Alvarez-Machain, 331 F.3d 604, 616-617 (9th Cir. 2003), rev’d on other grounds, Sosa v. Alvarez-Machain, 542 U.S. 692, 735-738 & n.24 (2004); Holmes, 459 F.2d at 1220-1222.

The panel’s inference from silence of a private judicial remedy is further undercut by the fact that an optional protocol to the Vienna Convention explicitly provides two enforcement mechanisms. Under Articles I and II of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, parties may resolve disputes over the application of the Vienna Convention by bringing a claim in the International Court of Justice or before an arbitral tribunal. Even under this optional protocol — from which the United States noticed its withdrawal on March 7, 2005, see http://www. washingtonpost.com/wp‑dyn/articles/A21981‑2005Mar9.html — enforcement is by States, rather than their nationals.[2] Having created these specific, narrowly crafted, and optional enforcement mechanisms, the drafters of the Convention surely did not intend to create sub silentio a vastly broader and mandatory private judicial remedy. See, e.g., Hamdan, 415 F.3d at 40 (relying on Geneva Convention’s explicit enforcement mechanisms in rejecting implied private enforcement right).

The Executive Branch has consistently interpreted the Vienna Convention not to provide for judicial enforcement in habeas corpus or other equitable actions brought by private individuals and foreign governmental officials. See, e.g., Brief for United States at 18-30, Medellin v. Dretke, 125 S. Ct. 2088 (2005) (No. 04-5928); Brief for United States at 18-23, Republic of Paraguay v. Gilmore, 523 U.S. 371 (1998) (No. 97-1390), and Breard v. Greene, 523 U.S. 371 (1998) (No. 97-8214). The Executive’s longstanding interpretation of the Convention “is entitled to great weight.” United States v. Stuart, 489 U.S. 353, 369 (1989) (citation and quotation marks omitted).

Finally, even if the Vienna Convention created an individual right to consular notification that could be enforced in a U.S. court in some circumstances, there would be no basis for implying a monetary damages remedy. In determining whether an Act of Congress confers a private right of action for damages, the Court must find an intent “to create not just a private right, but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Similarly, the creation of a domestic civil cause of action for money damages for violation of a treaty would ordinarily be for Congress, in enacting a law necessary and proper to carry a treaty into effect. Cf. Missouri v. Holland, 252 U.S. 416, 432 (1920). For a treaty to have the unusual effect of creating a private damages remedy without an implementing Act of Congress, it would need to do so with a high degree of clarity, if not explicitly. The Vienna Convention does no such thing. Nor can a private right of action for damages be inferred from the history of its Senate consideration, which suggests only that the Convention was understood to impose legal obligations on U.S. officials with custody over nationals of signatory States without the need for further implementing legislation by Congress, and to that extent was “self-executing.” There is no evidence in the history that the Convention was understood or intended to create a private right of enforcement through a civil damages suit.[3]

2. The panel decision conflicts with the decisions of two other courts of appeals, which have held that the Vienna Convention does not create rights enforceable in a U.S. court at the behest of an aggrieved individual. See United States v. Emuegbunam, 268 F.3d 377, 391 (6th Cir. 2001), cert. denied, 535 U.S. 977 (2002); United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir.), cert. denied, 533 U.S. 962 (2001); cf. United States v. Li, 206 F.3d 56, 60-61 (1st Cir.) (noting that treaties do not generally create rights that are privately enforceable in federal courts, but declining to decide whether Vienna Convention consular notification rights are privately enforceable), cert. denied, 531 U.S. 956 (2000); Li, 206 F.3d at 66-68 (Selya, J., and Boudin, J., concurring) (concluding that consular notification rights are not individually enforceable in court); United States v. De La Pava, 268 F.3d 157, 164-165 (2d Cir. 2001) (describing substantial evidence that Vienna Convention consular notification rights are not judicially enforceable by individual alien).

The panel decision is also in tension with Breard v. Greene, 523 U.S. 371 (1998), in which the Supreme Court refused to permit judicial enforcement of Article 36 of the Vienna Convention by a foreign government and its consular officials. If, as the Court there noted, “neither the text nor the history of the Vienna Convention clearly provides a foreign nation a private right of action in United States’ courts” to enforce its consular notification rights, id. at 377 — although the rights of consular officials are parallel to those of detained foreign nationals — then there is no basis to conclude that the President and the Senate meant for detained foreign nationals themselves to sue. See also Federal Republic of Germany v. United States, 526 U.S. 111, 111-112 (1999) (foreign government’s attempt to enforce consular notification provision in U.S. courts “is without evident support in the Vienna Convention”). This conflict in decisional authority demonstrates the exceptional importance of the case and the need for rehearing. See Fed. R. App. P. 35(b)(1)(B).

3. The panel’s decision could have substantive adverse consequences that warrant rehearing or review en banc.

Private judicial enforcement of the Vienna Convention, especially through civil suits for money damages, threatens an avalanche of legal claims against law enforcement officials. Individual agents will be subjected to the burden and expense of defending against civil damages lawsuits. Government officials will be forced to divert scarce resources to litigate the adequacy of information provided to detainees regarding consular notification information under the Vienna Convention, the prejudice caused by any inadequacy, and possible defenses to liability.

The number of potential lawsuits is extremely high, furthermore. The U.S. Census Bureau has estimated that 21 million foreign nationals resided in the United States as of 2004. See Table 1.1, at http://www.census.gov/population/www/ socdemo/foreign/ppl‑176.html. Although we are not aware of statistics regarding the number of these foreign nationals subject to detention, in 2004 alone, the U.S. Immigration and Customs Enforcement removed 82,802 criminal aliens — i.e., aliens who had been arrested, charged, prosecuted, and found guilty of offenses that rendered them statutorily subject to removal. See http://www.ice.gov/graphics/news/ newsreleases/articles/droFY04.htm. Presumably, many more aliens were detained but not removed. Despite the vigorous efforts of the United States government to promote treaty compliance, a substantial number of foreign nationals who have been detained in the United States may not have received information regarding consular notification pursuant to the Vienna Convention, as the result of mistake or ignorance by state or local law enforcement officials. Under the panel’s reasoning, each could sue for money damages in a U.S. court.

Nor would the remedy created by the panel decision be limited to foreign nationals detained in this country by U.S. officials. The panel’s rationale would also appear to permit individuals to sue foreign officials in U.S. courts for alleged violations of the Vienna Convention’s consular notification requirements in foreign countries, with potentially significant consequences for our relations with those foreign governments. In matters of foreign affairs, our Constitution vests the responsibility for speaking on behalf of the nation in the Executive Branch: “There is an elaborate regime of practices and institutions by which the United States and other nations enforce commitments” made in treaties or international agreements, with nations sometimes choosing to forego enforcement of a treaty right “for reasons of prudence, * * * convenience, or *** to secure advantage in unrelated matters.” Li, 206 F.3d at 68. For a U.S. court to inject itself into this delicate process, by asserting the right to adjudge and remedy treaty violations, could cause significant harm to our foreign relations. The panel’s holding could also lead to inconsistent, non-reciprocal application of the Vienna Convention, since no other country of which we are aware has permitted individual lawsuits for damages based on alleged violation of the Vienna Convention’s consular notification rights. For all these reasons, the case merits rehearing by the panel or review by the full Court.

CONCLUSION

For the foregoing reasons, this Court should vacate the panel decision in this case and grant rehearing or rehearing en banc.

Respectfully submitted,

JOHN B. BELLINGER, III PETER D. KEISLER

Legal Adviser Assistant Attorney General

Department of State

Washington, DC 20520 JAN PAUL MILLER

United States Attorney

DOUGLAS N. LETTER

(202) 514-3602

ROBERT M. LOEB

(202) 514-4332

SHARON SWINGLE

(202) 353-2689

Attorneys, Appellate Staff

Civil Division, Room 7250

Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the typestyle requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared with Word Perfect 12 in a proportional typeface with 14 characters per inch in Times New Roman.

_______________________

Sharon Swingle

Counsel for the United States

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief Of The United States As Amicus Curiae In Support Of Petition For Rehearing Or Rehearing En Banc were served on the following counsel by overnight delivery, postage prepaid, on November 10, 2005:

Jerome P. Lyke

Flynn, Palmer & Tague

402 West Church

Champaign, IL 61824-1517

(217) 352-5181

Brad P. Rosenberg

Mayer, Brown & Platt

1909 K Street, NW

Washington, DC 20006

(202) 263-3302

_______________________

Sharon Swingle

Counsel for the United States

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST ...................................................................... 2

STATEMENT OF THE ISSUE PRESENTED ............................................ 3

STATEMENT ................................................................................................. 4

ARGUMENT .................................................................................................. 6

THIS CASE MERITS REHEARING OR REVIEW

BY THE EN BANC COURT ...................................................... 6

CONCLUSION ............................................................................................. 15

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001).......................................... 11

Argentine Republic v. Amerada Hess Shipping Co.,

488 U.S. 428 (1989)............................................................................. 7

Breard v. Greene, 523 U.S. 371 (1998)............................................. 12, 13

Bustillo v. Johnson, No. 05-51 (U.S. cert. granted

Nov. 7, 2005) ........................................................................................ 3

Charlton v. Kelly, 229 U.S. 447 (1913)....................................................... 6

Federal Republic of Germany v. United States,

526 U.S. 111 (1999)........................................................................... 13

Federal Republic of Germany v. United States

(The LaGrand Case), 2001 I.C.J. 466 (June 27, 2001).................... 9

Garza v. Lappin, 253 F3d 918 (7th Cir.), cert. denied,

533 U.S. 924 (2001)............................................................................. 7

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), cert. granted,

No. 05-184 (U.S. Nov. 7, 2005)..................................................... 7, 10

Head Money Cases, 112 U.S. 580 (1884)................................................ 6

Holmes v. Laird, 459 F.2d 1211 (D.C. Cir.), cert. denied,

409 U.S. 869 (1972)......................................................................... 7, 9

Johnson v. Eisentrager, 339 U.S. 769 (1950)........................................... 7

Mexico v. United States (Matter of Avena and Other

Mexican Nationals), 2004 I.C.J. 128 (Mar. 31, 2004)........................ 9

Missouri v. Holland, 252 U.S. 416 (1920)............................................ 2, 11

Sanchez-Llamas v. Oregon, No. 04-10566 (U.S. cert.

granted Nov. 7, 2005)........................................................................... 3

United States v. Alvarez-Machain, 331 F.3d 604

(9th Cir. 2003), rev’d on other grounds, Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004).............................................. 9

United States v. De La Pava, 268 F.3d 157 (2d Cir. 2001)............... 7, 12

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

cert. denied, 535 U.S. 977 (2002)..................................................... 12

United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir.),

cert. denied, 533 U.S. 962 (2001)..................................................... 12

United States v. Li, 206 F.3d 56 (1st Cir.), cert. denied,

531 U.S. 956 (2000)..................................................................... 12, 15

United States v. Stuart, 489 U.S. 353 (1989).......................................... 10

Whitney v. Robertson, 124 U.S. 190 (1888).............................................. 6

Constitutions, Treaties, and Statutes:

United States Constitution:

Article I .............................................................................................. 2, 9

Article II ............................................................................................. 2, 9

Vienna Convention on Consular Relations,

Apr. 24, 1963, 21 U.S.T. 77....................................................... passim

Preamble........................................................................................... 4, 8

Article 5.................................................................................................. 4

Article 36...................................................................................... passim

Optional Protocol Concerning the Compulsory Settlement

of Disputes................................................................................... 9

28 U.S.C. § 1331.......................................................................................... 6

Alien Tort Statute, 28 U.S.C. § 1350...................................................... 5, 6

Miscellaneous:

Brief for United States, Medellin v. Dretke,

125 S. Ct. 2088 (2005) (No. 04-5928).............................................. 10

Brief for United States, Republic of Paraguay

v. Gilmore, 523 U.S. 371 (1998) (No. 97-1390),

and Breard v. Greene, 523 U.S. 371 (1998) (No. 97-8214)........... 10

Fed. R. App. P. 35(b)(1)(B)........................................................................ 13

http://www.census.gov/ population/www/socdemo/

foreign/ppl‑176.html............................................................................ 14

http://www.ice.gov/ graphics/news/newsreleases/articles/droFY04.htm 14

http://www.washingtonpost.com/wp‑dyn/articles/

A21981‑2005Mar9.html....................................................................... 9

S. Exec. Rep. No. 9, 91st Cong., 1st Sess. 18 (1969)........................... 11



[1] The panel also held that the Alien Tort Statute, 28 U.S.C. § 1350 (ATS), confers jurisdiction on a federal court to entertain an alien’s claim for alleged violation of Article 36 of the Vienna Convention. The United States has serious reservations about the panel’s assumption that a violation of Article 36 would constitute a “tort” within the meaning of the ATS. Because that issue is not essential to the court’s holding, however, we have not addressed it in this brief. Our submission in the text — that the Vienna Convention confers no privately enforceable rights nor any private right of action for damages — applies equally whether jurisdiction is asserted under 28 U.S.C. § 1331 or § 1350.

[2] The ICJ decided two cases prior to the United States’ notice of withdrawal from the optional protocol, in which the ICJ concluded that Article 36 of the Vienna Convention confers individual rights that must be given significance in criminal proceedings. See Federal Republic of Germany v. United States (The LaGrand Case), 2001 I.C.J. 466 (June 27, 2001); Mexico v. United States (Matter of Avena and Other Mexican Nationals), 2004 I.C.J. 128 (Mar. 31, 2004). The panel was wrong to suggest (at slip op. 26-27) that the United States is bound by those decisions with regard to all conduct pre-dating its notice of withdrawal from the optional protocol. In fact, Article 59 of the Statute of the ICJ expressly provides that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.” In any event, nothing in the ICJ’s decisions suggests that the proper mechanism for enforcing individual rights of consular notification is a private action against law enforcement officials for money damages.

[3] Far from containing a clear statement of intent to create a novel private damages remedy, the history of Senate consideration of the Vienna Convention indicates that it was intended primarily to replicate existing law. The State Department, in presenting the Convention to the Senate, stated that it does not “overcom[e] Federal or State laws beyond the scope long authorized in existing consular conventions.” S. Exec. Doc. No. 9, 91st Cong., 1st Sess. 18 (1969). The Senate Foreign Relations Committee explained that “[t]he Convention does not change or affect present U.S. laws or practice.” Id. at 2. And following approval, the State Department informed governors nationwide that the Convention would not require “significant departures from the existing practice within the several states.” United States v. Li, 206 F.3d 56, 64 (1st Cir.), cert. denied, 531 U.S. 956 (2000).



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