In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1657
TEJPAUL S. JOGI,
Plaintiff-Appellant,
v.
TIM VOGES, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-2067—Harold A. Baker, Judge.
____________
ON PETITION FOR REHEARINGŒ
____________
NOVEMBER 10, 2005—DECIDED MARCH 12, 2007
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This case presents the question
whether a foreign national who is not informed of his
right to consular notification under Article 36 of the
Œ
Defendants also filed a Petition for Rehearing En Banc, which
was submitted to all judges in regular active service for a vote.
No judge wished to rehear the case en banc, and thus that
petition is denied. Circuit Judges Flaum and Williams took no
part in the consideration or decision of the petition for rehear-
ing en banc.
2 No. 01-1657
Vienna Convention on Consular Relations (Vienna Conven-
tion), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596
U.N.T.S. 261, has any individual remedy available to him
in a U.S. court. This panel’s original opinion in the case,
Jogi v. Voges, 425 F.3d 367 (7th Cir. 2005), concluded that
the answer was yes. The original opinion, to which we
refer here as Jogi I, held that the district court had sub-
ject matter jurisdiction under both the general federal
jurisdiction statute, 28 U.S.C. § 1331, and under the
Alien Tort Statute (ATS), 28 U.S.C. § 1350. See 425 F.3d
at 371-73. Jogi I also held that the Vienna Convention is
a self-executing treaty, id. at 376-78; that Article 36 of the
Convention confers an individual right to notification on
nationals of parties to the treaty, id. at 378-84; and that
the Convention itself gives rise to an implied individual
private right of action for damages, id. at 384-85. Finally,
Jogi I addressed several additional defenses that had
been presented and concluded that none warranted dis-
missal.
Since Jogi I was decided, the Supreme Court has spoken
on the subject of the Vienna Convention, albeit in the
context of the availability of certain remedies in criminal
proceedings and the applicability of the normal rules of
procedural default. See Sanchez-Llamas v. Oregon, 126
S.Ct. 2669 (2006). In addition, the Court has addressed the
exclusionary rule, describing it as a remedial rule of “last
resort,” and its relation to the remedy provided by 42
U.S.C. § 1983 for police misconduct. See Hudson v. Michi-
gan, 126 S.Ct. 2159, 2167-68 (2006). The Court’s reference
to § 1983 prompted us to request supplemental memo-
randa in Jogi’s case addressing two questions: (1) whether
it is necessary to rely on § 1350 for subject matter juris-
diction in a Vienna Convention case, given the existence
of § 1331, and (2) whether § 1983 provides a private right
of action here, rendering unnecessary our discussion of
an implied action directly under the Convention. The
No. 01-1657 3
parties have submitted their memoranda, and we also
have the benefit of an amicus curiae submission from the
United States.
In the interest of avoiding a decision on grounds broader
than are necessary to resolve the case, especially in an
area that touches so directly on the foreign relations of the
United States, the panel has re-examined its earlier
opinion and has decided to withdraw that opinion and
substitute the following one. Briefly put, we are persuaded
that it is best not to rest subject matter jurisdiction on
the ATS, since it is unclear whether the treaty violation
Jogi has alleged amounts to a “tort.” Both parties, as well
as the United States, have suggested that jurisdiction is
secure under 28 U.S.C. § 1331, and we agree with that
position. Furthermore, rather than wade into the treacher-
ous waters of implied remedies, we have concluded that
Jogi’s action rests on a more secure footing as one under
42 U.S.C. § 1983. At bottom, he is complaining about police
action, under color of state law, that violates a right
secured to him by a federal law (here, a treaty). We can
safely leave for another day the question whether the
Vienna Convention would directly support a private
remedy.
I
For convenience, we briefly recount the background
facts of Jogi’s case. Tejpaul S. Jogi is an Indian citizen who
was charged with aggravated battery with a firearm in
Champaign County, Illinois. Jogi pleaded guilty to the
crime and served six years of a twelve-year sentence; at
that point, he was removed from the United States and
returned to India. No state official ever advised him of his
right under the Vienna Convention to contact the Indian
consulate for assistance, nor did any Champaign County
4 No. 01-1657
law enforcement official ever contact the Indian consulate
on his or her own initiative on Jogi’s behalf.
At some point after Jogi was in prison, he learned about
the Vienna Convention. This prompted him to initiate
several lawsuits, including the present case, in which he
filed a pro se complaint seeking compensatory, nominal,
and punitive damages to remedy this violation. He named
as defendants various Champaign County law enforce-
ment officials, including the two investigators who ques-
tioned him after his arrest. Jogi’s complaint relied on the
ATS, 28 U.S.C. § 1350, which establishes jurisdiction in
the district courts over a civil action by an alien for a tort
committed in violation of a treaty of the United States.
See generally Sosa v. Alvarez-Machain, 542 U.S. 692
(2004). The district court found that the state officials had
violated the Vienna Convention, but it concluded that
Jogi’s allegations were insufficient to trigger subject
matter jurisdiction under the ATS.
Jogi’s appeal to this court followed, and, as we have
recounted above, the panel in Jogi I concluded that the
district court did have subject matter jurisdiction over
the suit and that Jogi was entitled to proceed with his
action. We expressed no opinion on a number of defenses
that had not yet been raised, given the posture of the case,
including the statute of limitations and qualified immu-
nity. 425 F.3d at 386.
II
A
As before, the first issue we reach is that of subject
matter jurisdiction. In the end, very little needs to be said
on that point. Jogi’s complaint makes it clear that he is
attempting to assert rights under Article 36 of the Vienna
Convention. The general federal jurisdiction statute, 28
U.S.C. § 1331, confers jurisdiction over claims arising
No. 01-1657 5
under the “Constitution, laws, or treaties of the United
States.” As everyone, including the United States, ac-
knowledges, the assertion of a claim arising under any
one of those sources of federal law is enough to support
subject matter jurisdiction unless the claim is so plainly
insubstantial that it does not engage the court’s power. As
the Supreme Court reaffirmed in Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83 (1998):
It is firmly established in our cases that the absence of
a valid (as opposed to arguable) cause of action does
not implicate subject-matter jurisdiction, i.e., the
courts’ statutory or constitutional power to adjudicate
the case. See generally 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1350, p. 196, n. 8 and cases cited (2d ed. 1990). As we
stated in Bell v. Hood, 327 U.S. 678, 682 . . . (1946),
“[j]urisdiction . . . is not defeated . . . by the possibility
that the averments might fail to state a cause of
action on which petitioners could actually recover.”
Rather, the district court has jurisdiction if “the right
of the petitioners to recover under their complaint
will be sustained if the Constitution and laws of the
United States are given one construction and will be
defeated if they are given another,” id., at 685, unless
the claim “clearly appears to be immaterial and made
solely for the purpose of obtaining jurisdiction or
where such a claim is wholly insubstantial and frivo-
lous.” Id., at 682-683.
523 U.S. at 89. There can be no doubt that Jogi’s claim
does not fall within that small subset of utterly frivolous
actions that are insufficient to support the court’s juris-
diction.
We thus save for another day the question whether the
ATS might also support subject matter jurisdiction in a
case like Jogi’s. The ATS, as the Supreme Court held in
6 No. 01-1657
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), grants
jurisdiction to the federal courts to hear suits brought by
aliens for torts either in violation of the law of nations or
in violation of a treaty of the United States. We expressly
refrain from deciding whether the failure of the police
officers here to inform Jogi of the right to consular noti-
fication provided by Article 36 of the Vienna Convention
was the kind of “tort . . . in violation of a treaty” that
§ 1350 covers. It is enough, for present purposes, that
jurisdiction under § 1331 is secure.
B
We now turn to the question whether 42 U.S.C. § 1983
provides the statutory right of action that Jogi needs
for his claim. (The reason that the panel’s opinion in Jogi
I did not discuss this possibility is simple: the parties did
not rely on § 1983. It is established, however, that com-
plaints need not plead legal theories. Particularly with the
benefit of the parties’ supplemental memoranda on this
point of law, we are free to consider it as a possible basis
for the suit.) This well known statute says that “[e]very
person who, under color of [state law], subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceed-
ing for redress.” (Emphasis added.)
In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme
Court held that § 1983 encompasses claims based on
purely statutory violations of federal law—there, violations
of the federal Social Security Act. Or, as the Court put
it more precisely, “[t]he question before us is whether
the phrase ‘and laws,’ as used in § 1983, means what it
says, or whether it should be limited to some subset of
No. 01-1657 7
laws.” 448 U.S. at 4. After reviewing earlier cases and the
legislative history of the Civil Rights Act of 1871, the
Court resolved the question in favor of the straightfor-
ward reading: “laws” meant all laws.
The United States argues here, in its amicus curiae
submission, that the word “laws” in § 1983 should be read
to be restricted to statutes passed by Congress and to
exclude treaties. This, it concedes, is a novel argument.
There is nothing wrong with novelty per se, but this
argument suffers from the disadvantage of being in ten-
sion with the Supreme Court’s decision in Baldwin v.
Franks, 120 U.S. 678 (1887), where the Court considered
whether the criminal counterpart to what has become
§ 1983 (now codified at 18 U.S.C. §§ 241-42) supported a
claim by a class of Chinese aliens that they had been
deprived of their rights under certain treaties by a con-
spiracy of local officials. The Court decided that the statute
did not reach that far, but for federalism reasons, not
because “treaties” fell outside its scope. Indeed, it indi-
cated that a proper claim under the treaty would be
cognizable:
The United States are bound by their treaty with
China to exert their power to devise measures to
secure the subjects of that government lawfully resid-
ing within the territory of the United States against ill
treatment, and if in their efforts to carry the treaty
into effect they had been forcibly opposed by persons
who had conspired for that purpose, a state of things
contemplated by the statute would have arisen. But
that is not what Baldwin has done. His conspiracy
is for the ill treatment itself, and not for hindering
or delaying the United States in the execution of their
measures to prevent it.
120 U.S. at 693-94.
8 No. 01-1657
Beyond that, the Supremacy Clause of the Constitution
makes the “Constitution, and the Laws of the United
States . . . and all Treaties made” the supreme law of the
land. U.S. Const., art. VI, cl. 2. See also Head Money
Cases, 112 U.S. 580, 598 (1884) (“[A] treaty may . . .
contain provisions which confer certain rights upon the
citizens or subjects of one of the nations residing in the
territorial limits of the other, which partake of the
nature of municipal law . . . .”). The government’s con-
cern that the inclusion of treaties as part of the law of
the United States included in § 1983 would flood the
courts with cases is overblown. As the government itself
urges elsewhere in its filings before us, there are numer-
ous hurdles that must be overcome before an individual
may assert rights in a § 1983 case under a treaty: the
treaty must be self-executing; it must contain provisions
that provide rights to individuals rather than only to
states; and the normal criteria for a § 1983 suit must be
satisfied. Only a small subset of treaties, some assuring
economic rights and others civil rights, would even be
candidates for such a lawsuit. We are not persuaded that
the addition of the words “and treaties” in statutes like
§ 1331 and 28 U.S.C. § 2241 (and the absence of those
words in § 1983) compels a different result. Section 1983
is a statute that was designed to be a remedy “against all
forms of official violation of federally protected rights,”
Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 700-01 (1978), when those violations are committed
by state actors. To read it as excluding protection for
the subset of treaties that provide individual rights
would be to relegate treaties to second-class citizenship,
in direct conflict with the Constitution’s command. We
conclude, therefore, that the fact that Jogi is asserting
rights under a treaty does not in and of itself doom his
case.
No. 01-1657 9
Before Jogi can proceed under § 1983, he must show two
things: first, that a personal right can be inferred from
Article 36 of the Vienna Convention; and second, that he
is entitled to a private remedy. With respect to the first of
those inquiries, the Supreme Court held in Gonzaga Univ.
v. Doe, 536 U.S. 273 (2002), that the same analysis
applies to § 1983 cases as applies to other cases raising
the question whether a private right exists. See 536 U.S.
at 283-84. The right, it held, must appear unambiguously
in either the statute or, as applied here, the treaty. For
purposes of the inquiry into the existence of a legal right,
the Court identified two relevant inquiries: (1) whether
the statute by its terms grants private rights to any
identifiable class; and (2) whether the text of the stat-
ute is phrased in terms of the persons benefitted. Before
addressing those two questions, however, we consider it
necessary to review the Vienna Convention in greater
detail. Most of what follows appeared in Jogi I.
1. The Vienna Convention and Article 36
The Vienna Convention is a 79-article, multilateral
treaty to which both the United States and India are
signatories. The treaty covers topics such as consular
relations in general; consular functions; facilities, privi-
leges, and immunities of consular personnel; and commu-
nications with nationals of the sending state. The Pream-
ble recalls that “consular relations have been established
between peoples since ancient times,” notes the principle
of sovereign equality among states, recognizes the useful-
ness of a convention on this subject, and, importantly
for our case, “realiz[es] that the purpose of such privileges
and immunities is not to benefit individuals but to
ensure the efficient performance of functions by con-
sular posts on behalf of their respective States.” Vienna
Convention, pmbl.
10 No. 01-1657
Notwithstanding the latter paragraph of the Preamble,
the Vienna Convention singles out individual rights in at
least two places. The first is in the list of consular func-
tions found in Article 5, which includes “helping and
assisting nationals, both individuals and bodies corporate,
of the sending State,” Art. 5(e), and “representing or
arranging appropriate representation for nationals of
the sending State before the tribunals and other authori-
ties of the receiving State, for the purpose of obtaining,
in accordance with the laws and regulations of the receiv-
ing State, provisional measures for the preservation of the
rights and interests of these nationals, where, because of
absence or any other reason, such nationals are unable
at the proper time to assume the defence of their rights
and interests,” Art. 5(i).
The second, which is the critical one for Jogi, is Article
36, which reads as follows:
1. With a view to facilitating the exercise of consular
functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate
with nationals of the sending State and to have
access to them. Nationals of the sending State
shall have the same freedom with respect to
communication with and access to consular officers
of the sending State;
(b) if he so requests, the competent authorities of
the receiving State shall, without delay, inform the
consular post of the sending State if, within its
consular district, a national of that State is ar-
rested or committed to prison or to custody pend-
ing trial or is detained in any other manner. Any
communication addressed to the consular post
by the person arrested, in prison, custody or
detention shall also be forwarded by the said
authorities without delay. The said authorities
No. 01-1657 11
shall inform the person concerned without delay
of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a
national of the sending State who is in prison,
custody or detention, to converse and correspond
with him and to arrange for his legal representa-
tion. They shall also have the right to visit any
national of the sending State who is in prison,
custody or detention in their district in pursuance
of a judgment. Nevertheless, consular officers
shall refrain from taking action on behalf of a
national who is in prison, custody or detention if
he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article
shall be exercised in conformity with the laws and
regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations
must enable full effect to be given to the purposes for
which the rights accorded under this Article are
intended.
Vienna Convention, Art. 36 (emphasis added). Among
other requirements, this provision instructs authorities
of a receiving state to notify an arrested foreign national
of “his rights” under the Convention “without delay.” Id.
at ¶ 1(b).
There is an obvious tension between the broad language
of the clause in the Preamble that appears to disclaim any
general intent to protect individuals, and the language of
Article 36. We address it in more detail below, when we
consider whether the treaty confers a personal right on
individuals like Jogi, but it is helpful here to set the
stage for that discussion. One commentator has ob-
served that of the Vienna Convention’s 79 articles, the
one with the “most tortuous and checkered background
is indubitably Article 36.” Luke Lee, Vienna Convention
12 No. 01-1657
on Consular Relations 107 (1966). The delegates to the
Vienna Convention discussed and debated Article 36
extensively before it was finally approved. Id. at 107-14;
1 United Nations Conference on Consular Relations:
Official Records, at 3, U.N. Doc. A/Conf. 2 5/6, U.N. Sales.
No. 63.X.2 (1963).
The debates that took place as the Convention was be-
ing drafted reflect close attention to the question of the
individual’s right to consular notification. The district
court’s decision in Standt v. City of New York, 153 F.Supp.
2d 417 (S.D.N.Y. 2001), provides a useful summary of
these discussions:
[There was] widespread concern with the question of
individual rights. For example, a proposed amend-
ment by Venezuela that would have eliminated the
individual right of consular communication was
withdrawn after receiving strong opposition from other
member states. 2 United Nations Conference on
Consular Relations: Official Records, at 37, 38, 84, 85,
331-34, U.N. Doc. A/Conf. 2 5/6, U.N. Sales. No. 63.X.2
(1963) . . . . The United States, in particular, proposed
language intended to “protect the rights of the national
concerned.” Id. at 337. In short, “the ‘legislative his-
tory’ of the Treaty supports the interpretation that
Article 36 was intended to confer individual rights
on foreign nationals.” [Mark J.] Kadish, [Article 36 of
the Vienna Convention on Consular Relations: A
Search for the Right to Counsel,] 18 Mich. J. Int’l L.
[565], at 599 [(1997)].
Standt, 153 F.Supp. 2d at 425-26.
The First Circuit had occasion to visit this issue in the
case of United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en
banc), a case to which we return below. In an opinion
concurring in part and dissenting in part, then-Chief
Judge Torruella provided this helpful background:
No. 01-1657 13
The positions of the delegates from the United King-
dom and Australia were typical of the prevailing view.
The former expressed his rejection of a proposal that
a consul be notified only if the detained national so
requested, because “[i]t could well make the provisions
of Article 36 ineffective because the person arrested
might not be aware of his rights.” [Lee, Vienna Con-
vention on Consular Relations] at 83-84 (emphasis
supplied); see also id. at 339, 344. The Australian
delegate stated along a similar vein, that “[t]here was
no need to stress the extreme importance of not
disregarding, in the present or any other interna-
tional document, the rights of the individual.” Id. at
331 (emphasis supplied). In fact the United States
delegate proposed an amendment to Article 36(1)(b)
that the notification to a consul of a national’s deten-
tion be made at the request of the national, “to protect
the rights of the national concerned.” Id. at 337 (em-
phasis supplied). From these and other statements
by the various national delegates there should be
little doubt that the treaty under consideration con-
cerned not only consular rights but also the separate
individual rights of detained nationals . . . . [At this
point the opinion gives specific references to the
statements of delegates from 15 different countries.]
[S]ee also Mark Kadish, Article 36 of the Vienna
Convention on Consular Relations: A Search For the
Right to Counsel, 18 Mich. J. Int’l L. 565 (1997) (dis-
cussing the Vienna Convention’s history in this re-
spect); Report of the United States Delegation to the
United Nations Conference on Consular Relations,
Vienna, Austria, March 4 to April 22, 1963 (hereinafter
“U.S. Vienna Report”).
206 F.3d at 73-74. The ultimate amendment that became
Article 36 was adopted by a margin of 65 votes to 2, with
14 No. 01-1657
12 abstentions. The United States delegate voted in
favor of the amendment. Id. at 74.
Secretary of State William P. Rodgers indicated that
Article 36 provided an individual right in his Letter of
Transmittal, through which he officially submitted the
certified copy of the Convention to the President. There
he wrote that Article 36 “requires that authorities of the
receiving State inform the person detained of his right to
have the fact of his detention reported to the consular post
concerned and of his right to communicate with that
consular post.” Id. (emphasis added). The U.S. Vienna
Report explained that “[t]his provision has the virtue of
setting out a requirement which is not beyond means of
practical implementation in the United States, and, at
the same, is useful to the consular service of the United
States in the protection of our citizens abroad.” Id. (empha-
sis added).
This is enough to give a sense of what Article 36 is
about, and the two positions on its scope. Jogi argues that
it confers an individual right on a person from the “send-
ing” state to consular notification, while the defendants
and the United States urge that it does no such thing, and
that the notification process is for the convenience of the
consular services and their respective governments. We
return to this question below, when we consider whether
such an individual right exists. In theory, we would
also have to resolve the question whether the Convention
is self-executing before proceeding, because if it is not,
then Jogi’s suit must fail for that reason alone. See Frolova
v. Union of Soviet Socialist Republics, 761 F.2d 370, 373
(7th Cir. 1985) (per curiam) (holding that if not imple-
mented by enabling legislation, a treaty can provide a
basis for a private lawsuit only if it is self-executing).
Here, however, it is undisputed that the Convention is self-
executing, meaning that legislative action was not neces-
sary before it could be enforced. See generally Restatement
No. 01-1657 15
(Third) of the Foreign Relations Law of the United States
§ 111(4) (1987) (cited below as “Restatement Third”). We
therefore dispense with that inquiry and move on to the
issue that has generated the greatest degree of contro-
versy: whether Article 36 confers individually enforceable
rights.
2. Individual Rights under the Treaty
When the United States Senate gave its advice and
consent to the ratification of the Vienna Convention in
1969, 115 Cong. 30997 (by a vote of 81 to 0), the Conven-
tion became the “supreme Law of the Land,” binding
on the states. U.S. Const., art. VI, cl. 2; see Whitney v.
Robertson, 124 U.S. 190, 194 (1888) (“By the constitution,
a treaty is placed on the same footing, and made of like
obligation, with an act of legislation.”); Breard v. Greene,
523 U.S. 371, 376 (1998) (per curiam) (stating that treaties
are “on a full parity” with acts of Congress) (citing Reid
v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion)).
The Supreme Court has recognized that treaties, which
are basically agreements among sovereign nations, may
provide for individual rights. United States v. Rauscher,
119 U.S. 407 (1886) (holding that the provisions of an
extradition treaty, permitting prosecution only for the
crime on which extradition was based, could serve as a
defense to the attempted prosecution of another crime);
United States v. Alvarez-Machain, 504 U.S. 655, 664-70
(1992) (Alvarez-Machain I) (considering whether Alvarez’s
abduction violated the terms of an extradition treaty
between the United States and Mexico); Head Money
Cases, 112 U.S. at 598 (stating that “a treaty may also
contain provisions which confer certain rights upon the
citizens or subjects of one of the nations” that “partake of
the nature of municipal law, and which are capable of
16 No. 01-1657
enforcement as between private parties in the courts of
the country”).
In the case of the Vienna Convention, the Supreme
Court has said, without finally deciding the point, that
Article 36 “arguably confers on an individual the right to
consular assistance following arrest.” Breard v. Greene,
523 U.S. at 376; see also Sanchez-Llamas, 126 S.Ct. at
2677-78 (assuming, without deciding, that the Conven-
tion creates judicially enforceable rights). In Breard v.
Greene, the Court faced facts that have become common-
place in Vienna Convention cases: a criminal defendant
who was trying to use federal habeas corpus or other
criminal proceedings to seek a remedy for a Convention
violation based in the criminal law. 523 U.S. at 377
(finding that Breard had procedurally defaulted his Vienna
Convention claim on habeas corpus review by failing to
raise it in state court).
On analogous facts, this court and most of our sister
circuits have refrained from deciding whether an individ-
ual right exists under the Vienna Convention; instead,
most have concluded that the various remedies available
to criminal defendants, such as the quashing of an indict-
ment or the exclusionary rule, are not appropriate cures
for a violation. See Li, 206 F.3d at 60 (1st Cir.) (en banc)
(“We hold that irrespective of whether or not the treaties
create individual rights to consular notification, the
appropriate remedies do not include suppression of
evidence or dismissal of the indictment.”); United States v.
De La Pava, 268 F.3d 157, 165 (2d Cir. 2001) (“Even if we
assume arguendo that De La Pava had judicially enforce-
able rights under the Vienna Convention—a position we
do not adopt—the Government’s failure to comply with
the consular notification provision is not grounds for
dismissal of the indictment.”); Murphy v. Netherland, 116
F.3d 97, 100 (4th Cir. 1997) (finding that “even if the
No. 01-1657 17
Vienna Convention on Consular Relations could be said
to create individual rights” the defendant could not ob-
tain habeas relief because his claim was procedurally
defaulted); United States v. Page, 232 F.3d 536, 540 (6th
Cir. 2000) (concluding that “although some judicial reme-
dies may exist, there is no right in a criminal prosecution
to have evidence excluded or an indictment dismissed
due to a violation of Article 36”); United States v.
Chaparro-Alcantara, 226 F.3d 616, 621 (7th Cir. 2000) (“It
is sufficient for present purposes to assume that such an
individual right is created by the Convention and to
confront squarely whether the exclusionary rule is the
appropriate sanction for a violation of that right.”); United
States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000)
(same); United States v. Ortiz, 315 F.3d 873, 886 (8th Cir.
2002) (“Even if we assume for present purposes that the
Convention creates an individually enforceable right, it
would not follow, on this record, that the statements
should be excluded merely because the Convention has
been violated.”); United States v. Lombera-Camorlinga, 206
F.3d 882, 885 (9th Cir. 2000) (en banc) (declining to decide
whether Article 36 creates an individually enforceable
right but concluding that suppression of evidence is an
inappropriate remedy); United States v. Minjares-Alvarez,
264 F.3d 980, 986-87 (10th Cir. 2001) (declining to decide
whether the Vienna Convention creates individually
enforceable rights, but concluding that suppression is not
an appropriate remedy); United States v. Duarte-Acero, 296
F.3d 1277, 1282 (11th Cir. 2002) (holding that a violation
of the Vienna Convention does not warrant dismissal of an
indictment); United States v. Cordoba-Mosquera, 212 F.3d
1194, 1196 (11th Cir. 2000) (per curiam) (same). Two
circuits have found, in the context of a criminal proceeding,
that the treaty does not confer individual rights. United
States v. Jimenez-Nava, 243 F.3d 192, 197-98 (5th Cir.
2001); United States v. Emuegbunam, 268 F.3d 377, 391-94
(6th Cir. 2001).
18 No. 01-1657
This court is the first one to be confronted directly with
the question whether the Convention creates a private
right. Lombera-Camorlinga, 206 F.3d at 888 (noting that
the court did “not decide whether a violation of Article 36
may be redressable by more common judicial remedies
such as damages . . . ”). The distinction between a private
right, on the one hand, and various remedial measures
that affect criminal prosecutions, on the other, is an
important one, as the Supreme Court reiterated in Hudson
v. Michigan, supra. The literature exploring the pos-
sibility of deterring unlawful police behavior through
damages actions under 42 U.S.C. § 1983 or Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcot-
ics, 403 U.S. 388 (1971), makes the same point. See, e.g.,
Harold J. Krent, How to Move Beyond the Exclusionary
Rule: Structuring Judicial Response to Legislative Re-
form Efforts, 26 Pepp. L. Rev. 855 (1999); L. Timothy
Perrin, et al., If It’s Broken, Fix It: Moving Beyond the
Exclusionary Rule, 83 Iowa L. Rev. 669 (1998); Walter E.
Dellinger, Of Rights and Remedies: The Constitution as
a Sword, 85 Harv. L. Rev. 1532 (1972). Our consideration
here of the question whether the Convention creates
private rights is therefore in no way inconsistent with
our conclusion in Chaparro-Alcantara, supra, that the
exclusionary rule is not an available remedy for viola-
tions of the Vienna Convention.
As the Supreme Court in Gonzaga University counseled,
we begin our inquiry with the text of Article 36. See 536
U.S. at 283-84. “In construing a treaty, as in construing
a statute, we first look to its terms to determine its mean-
ing.” Alvarez-Machain I, 504 U.S. at 663; Sumitomo Shoji
America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982)
(“Interpretation of [the Treaty] . . . must, of course, begin
with the language of the Treaty itself [, and] [t]he clear
import of Treaty language controls . . . .”); see also Vienna
No. 01-1657 19
Convention on the Law of Treaties (Treaty Convention),
May 23, 1969, art. 26, 1155 U.N.T.S. 331, 339 (governing
the interpretation of treaties and directing courts to
look first to the plain language of a treaty when attempt-
ing to determine its meaning). Article 36 ¶ 1(b) states,
plainly enough, that authorities “shall inform the person
concerned without delay of his rights under this sub-
paragraph.” (Emphasis added). Justice O’Connor, noting
this language, has observed that, “if a statute were to
provide, for example, that arresting authorities ‘shall
inform a detained person without delay of his right to
counsel,’ I question whether more would be required be-
fore a defendant could invoke that statute to complain in
court if he had not been so informed.” Medellin v. Dretke,
544 U.S. 660, 687 (2005) (O’Connor, J., dissenting from
dismissal of writ of certiorari as improvidently granted). A
number of judges have noted that “the text emphasizes
that the right of consular notice and assistance is the
citizen’s” and that this language is “mandatory and un-
equivocal.” Breard v. Pruett, 134 F.3d 615, 622 (Butzner,
S.J., concurring); see Li, 206 F.3d at 72 (Torruella, C.J.,
concurring in part, dissenting in part) (“I have some
difficulty envisioning how it is possible to frame language
that more unequivocally establishes that the protections
of Article 36(1)(b) belong to the individual national, and
that the failure to promptly notify him/her of these rights
constitutes a violation of these entitlements by the de-
taining authority.”); United States v. Hongla-Yamche, 55
F.Supp. 2d 74, 77 (D.Mass. 1999) (“The language of Article
36 clearly refers to the existence of an individual right.”).
In our view, this text satisfies the strict test of clarity
that the Supreme Court set forth in Gonzaga University.
Faced with its unambiguous language, the defendants
attempt to introduce doubt by looking at the Convention’s
Preamble, which we reproduced above. They place special
weight on the fifth paragraph of the preamble, which says:
20 No. 01-1657
“Realizing that the purpose of such privileges and immuni-
ties is not to benefit individuals but to ensure the efficient
performance of the functions by consular posts on behalf
of their respective States . . . .” Vienna Convention, pmbl.
(emphasis added). That statement is a perfectly good
reflection of almost every other article of the Convention.
It does not, however, describe Article 36. Indeed, there is
little reason to think that it has any application at all to
Article 36. We are inclined to agree with Jogi that the
most reasonable understanding of this language is as a
way of emphasizing that the Convention is not designed to
benefit diplomats in their individual capacity, but rather
to protect them in their official capacity. See United States
v. Rodrígues, 68 F.Supp. 2d 178, 182 (E.D.N.Y. 1999) (“[I]t
appears that the purpose of [the Preamble] is not to
restrict the individual notification rights of foreign nation-
als, but to make clear that the Convention’s purpose is
to ensure the smooth functioning of consular posts in
general, not to provide special treatment for individual
consular officials.”); Kadish, supra, 18 Mich. J. Int’l L. at
594 (“The privileges and immunities granted in the Vienna
Convention are to enable the consul to perform his enu-
merated functions, not to benefit the consul personally.
Thus, the preamble language refers to the individual
consul, not individual foreign nationals.”).
Whether or not we are reading the Preamble correctly,
there is a broader principle at stake. It is a mistake to
allow general language of a preamble to create an ambigu-
ity in specific statutory or treaty text where none exists.
Courts should look to materials like preambles and titles
only if the text of the instrument is ambiguous. See, e.g.,
Whitman v. American Trucking Assns., Inc., 531 U.S.
457, 483 (2001) (inappropriate to look at title of section to
create ambiguity if text is clear; the clear text “eliminates
the interpretive role of the title, which may only shed
light on some ambiguous word or phrase in the statute
No. 01-1657 21
itself ”); City of Erie v. Pap’s A.M., 529 U.S. 277, 290-91
(2000) (rejecting language of preamble of local ordinance as
definitive for First Amendment challenge); Fidelity Federal
Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 158 n. 13
(1982) (look to the preamble only for the administrative
construction of the regulation, to which deference is due).
See generally 2A Sutherland, Statutes and Statutory
Construction § 47.04, at 146 (5th ed. 1992, Norman Singer
ed.) (“The preamble cannot control the enacting part of the
statute in cases where the enacting part is expressed in
clear, unambiguous terms.”).
In United States v. Stuart, 489 U.S. 353 (1989), the
Supreme Court stated that “a treaty should generally be
construe[d] . . . liberally to give effect to the purpose which
animates it and that [e]ven where a provision of a treaty
fairly admits of two constructions, one restricting, the
other enlarging, rights which may be claimed under it, the
more liberal interpretation is to be preferred.” Id. at 368
(citation and internal quotation marks omitted); see
Asakura v. City of Seattle, 265 U.S. 332, 342 (1924)
(“Treaties are to be construed in a broad and liberal
spirit, and, when two constructions are possible, one
restrictive of rights that may be claimed under it and the
other favorable to them, the latter is to be preferred.”).
We conclude that even though many if not most parts
of the Vienna Convention address only state-to-state
matters, Article 36 confers individual rights on detained
nationals. Although international treaties as a rule do not
create individual rights, see Chaparro-Alcantara, 226 F.3d
at 620-21, Sosa recognizes that international law in
general, and thus treaties in particular, occasionally do
so, see 124 S.Ct. at 2756. Although two of our sister
circuits have issued opinions in which they apparently
reject this conclusion, two considerations persuade us
that we should not follow their lead: first, they were
both addressing the specific argument that Article 36
22 No. 01-1657
provided some kind of shield against criminal enforce-
ment—a position that we too have rejected—and second,
these decisions both predated Sosa. See Jimenez-Nava, 243
F.3d at 198; Emuegbunam, 268 F.3d at 394.
Both the Fifth and the Sixth Circuits relied on the
language of the Preamble, the fact that the State De-
partment in a litigation context has taken the position that
the Vienna Convention does not create individual rights,
and the presumption against implied rights of action, in
reaching their conclusions. We have already explained
why we do not regard the Preamble as something capable
of creating ambiguity in the otherwise plain language of
Article 36. The negotiation history of Article 36 is filled
with concern about the question of individual rights. For
example, as the Standt court recalled:
[A] proposed amendment by Venezuela that would
have eliminated the individual right of consular
communication was withdrawn after it received strong
opposition from other member states. 2 United Nations
Conference on Consular Relations: Official Records
[“Official Records”], at 37, 38, 84, 85, 331-34, U.N. Doc.
A/Conf. 2 5/6, U.N. Sales No. 63.X.2 (1963).
153 F.Supp. 2d at 425-26. The United States itself pro-
posed language intended to “protect the rights of the
national concerned.” Official Records at 337; see Li, 206
F.3d at 73-74 (Torruella, C.J., concurring in part, dissent-
ing in part).
It is also revealing that the regulations issued by the
Department of Justice and (now) the Department of
Homeland Security that address the subject of consular
notification highlight the right of the individual alien to
notification. See 28 C.F.R. § 50.5 (DOJ); 8 C.F.R. § 236.1(e)
(DHS). The regulations in fact draw an interesting dis-
tinction between notifications: under the DOJ regulation,
§ 50.5(a)(1), the alien has the right to request the authori-
No. 01-1657 23
ties not to notify his or her home country, unless some
other treaty takes that right away from him or her; the
DHS regulation also acknowledges that particular treaties
may require notification. By careful design, as the travaux
preparatoires reveal, Article 36 of the Vienna Conven-
tion was worded in a way to ensure that only “if [the
alien] so requests” would the receiving authorities of the
state that had him in custody notify his home country’s
consular post. This indicates that the right conferred by
Article 36 belongs to the individual, not to the respective
governments.
The State Department sends regular notices to state
and local officials reminding them of their notification
obligations under the treaty. Kadish, supra, 18 Mich. J.
Int’l L. at 599 & nn. 211-14 (citing Breard v. Netherland,
949 F.Supp. 1255 (E.D. Va. 1996)). The Foreign Affairs
Manual issued by the State Department says that “Article
36 of the Vienna Consular Convention provides that the
host government must notify the arrestee without delay of
the arrestee’s right to communicate with the American
consul.” (Emphasis added). Courts have observed that the
United States has repeatedly invoked Article 36 on behalf
of American citizens detained abroad who have not been
granted the right of consular access. United States v.
Superville, 40 F.Supp. 2d 672, 676 & n.3 (D.V.I. 1999)
(noting United States interventions in Iran in 1979 and
Nicaragua in 1986); see Gregory Dean Gisvold, Strangers
in a Strange Land: Assessing the Fate of Foreign Nationals
Arrested in the United States by State and Local Authori-
ties, 78 Minn. L. Rev. 771, 792-94 (1994).
We conclude, for all these reasons, that Article 36 of the
Vienna Convention by its terms grants private rights to
an identifiable class of persons—aliens from countries
that are parties to the Convention who are in the United
States—and that its text is phrased in terms of the persons
24 No. 01-1657
benefitted. We thus turn to the final question, which is
whether § 1983 furnishes a remedy to Jogi and other such
aliens.
3. Remedy under 42 U.S.C. § 1983
Gonzaga University drew a sharp distinction between the
clarity required for finding a right and the burden of
showing that a remedy is available under § 1983:
Plaintiffs suing under § 1983 do not have the burden
of showing an intent to create a private remedy be-
cause § 1983 generally supplies a remedy for the
vindication of rights secured by federal statutes. . . .
Once a plaintiff demonstrates that a statute confers
an individual right, the right is presumptively enforce-
able by § 1983.
536 U.S. at 284. Nothing in either the Vienna Convention
or any other source of law has been presented to us that
would rebut this presumption, apart from the argument we
have rejected that treaties do not enjoy the same status as
statutes. We therefore conclude that Jogi is entitled to
pursue his claim under § 1983. We therefore have no need
to reach the question addressed in Jogi I whether the
Convention itself may be the source of an enforceable
remedy.
III
We close by reiterating our final conclusions from Jogi I.
As we did there, we again reject the defendants’ argument
that Jogi’s claim is barred by Heck v. Humphrey, 512 U.S.
477 (1994). It is not. Heck holds that a plaintiff seeking
damages for an allegedly unconstitutional conviction or
for other harm caused by actions whose unlawfulness
would undermine the validity of the conviction “must
No. 01-1657 25
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” 512
U.S. at 486-87. In Wilkinson v. Dotson, 544 U.S. 74 (2005),
the Court clarified the Heck rule. It explained that Heck
prevents prisoners from making an end-run around the
need to challenge the validity or duration of their con-
victions using the vehicle of habeas corpus, rather than
through an action under 42 U.S.C. § 1983 or Bivens. If
success in the lawsuit would not spell immediate or
speedier relief, then § 1983 remains available for use, and
Heck does not bar the action. Id. at 81-82.
The Supreme Court’s recent decision in Wallace v. Kato,
127 S.Ct. 1091 (2007), makes it clear that Heck does not
bar this action. Wallace is central, however, for one of the
two issues that will certainly arise on remand: when
exactly did Jogi’s claim arise (a question of federal law, as
Wallace held, 127 S.Ct. at 1095), and did he file suit in
time? The statute of limitations is an affirmative defense,
see FED. R. CIV. P. 8(c), and so this issue does not affect
our decision about subject matter jurisdiction or Jogi’s
ability to state a claim. Since we have decided that this
case must proceed under § 1983, it will be subject to the
two-year statute of limitations that federal courts in
Illinois borrow for these claims. (We note here that the
Wallace Court looked to state law both for the basic statute
of limitations and for any pertinent tolling rules. 127 S.Ct.
at 1098-99. The district court will be free to explore the
implications of this aspect of the Court’s decision more
fully on remand.) Relevant questions, assuming that the
affirmative defense is raised properly, will include when
Jogi’s claim accrued, whether the discovery rule applies to
his case, and whether he may take advantage of any
tolling rules. Second, we think it inevitable that the issue
26 No. 01-1657
of qualified immunity—well established in § 1983 cases—
will arise. Although normally we might be inclined to
find waiver, because the defendants have not even whis-
pered the phrase thus far, this is an unusual case. We
leave it to the district court’s sound discretion to decide
whether to allow the defendants (who have not yet filed
an answer, of course, because they won below on their
motion under Rule 12(b)(1)) to raise this defense on
remand.
The judgment of the district court is REVERSED, and the
case is REMANDED for further proceedings consistent with
this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-12-07