Ninth Circuit finds Vienna Convention on Consular Relations does not establish rights enforceable under U.S. civil rights law.

• Author: Crook, John R.

In September, in Cornejo v. County of San Diego, (1) the U.S. Court of Appeals for the Ninth Circuit concluded that Article 36(b) of the Vienna Convention on Consular Relations, (2) requiring that arrested aliens be informed of their right to have their consular officials notified of their arrests, does not create a private right enforceable in a suit for damages under 42 U.S.C. [section] 1983.

Cornejo (a Mexican national) and other aliens brought a federal class action for damages and injunctive relief against San Diego County, several deputy sheriffs, and various cities within the county. The plaintiffs alleged that they were not informed of their right to have their consular officials notified of their arrests, as required by Article 36(b) of the Vienna Convention. The plaintiffs sued under 42 U.S.C. [section] 1983, which authorizes suits for damages for "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. The plaintiffs' theory was that the Vienna Convention is a law of the United States falling within the ambit of section 1983.

The district court dismissed the suit for failure to state a claim, concluding that Article 36 does not create a private right cognizable under section 1983. The plaintiffs appealed; the United States supported the defendants as amicus curiae. The Ninth Circuit affirmed dismissal of the claim.

For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress. But "the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct." "While a treaty must be self-executing for it to create a private right of action enforceable in court without implementing domestic legislation, all self-executing treaties do not necessarily provide for the availability of such private actions."

Therefore, the question here is whether Congress, by ratifying the Convention, intended to create private rights and remedies enforceable in American courts through [section] 1983 by individual foreign nationals who are arrested or detained in this country ...

As Cornejo's claim is pursuant to [section] 1983, which provides a vehicle for seeking relief for violation of the "Constitution and laws," we are...