Since World War II, treaties have proliferated to address almost every matter of international concern. (1) However, despite judicial precedent on treaty enforcement extending back to the earliest days of the Republic, (2) the ability of individuals to enforce treaty-based rights in U.S. courts remains an unsettled question. Recently, in Cornejo v. County of San Diego, (3) the Ninth Circuit held that 42 U.S.C. [section] 1983 (4) does not provide a cause of action for violations of the consular notification rights guaranteed by the Vienna Convention on Consular Relations (5) (VCCR). In so holding, the court split with the Seventh Circuit, which in Jogi v. Voges (6) was the first circuit court to consider the issue and the first to allow any domestic remedy for a VCCR violation. (7) Although Cornejo assumed [section] 1983 applied to self-executing treaties like the VCCR, it did not follow the [section] 1983 analysis the Supreme Court has expounded for federal statutory rights. Instead, the court applied a presumption against judicial enforcement of treaty-based rights, an approach that is inconsistent with both the constitutional design of the United States and the structure of international law.
Ezequiel Nunez Cornejo, a Mexican citizen, was arrested in San Diego County on April 8, 2003. (8) Because Cornejo was a foreign national, Article 36 of the VCCR required the arresting authorities to notify him of his right to contact the Mexican consulate, but they did not do so. (9) Cornejo subsequently filed suit against the arresting officials, the county, and several cities within the county, seeking damages and injunctive relief on behalf of himself and other foreign nationals not notified of their rights as required by Article 36. (10) The district court granted the defendants' motions to dismiss. (11) Pointing out that Cornejo asserted a novel legal theory, the court held, inter alia, that the VCCR did not create a "private right of action in domestic court." (12)
The Ninth Circuit affirmed. (13) Writing for the panel, Judge Rymer (14) first noted that "[t]here 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." (15) Citing Maine v. Thiboutot (16) and Baldwin v. Franks, (17) the court also assumed that [section] 1983 applied to self-executing treaties. (18) Under Gonzaga University v. Doe, (19) a treaty or statute must provide an "'unambiguously conferred right' phrased in terms of the person benefited" to be enforceable through a [section] 1983 claim. (20) The court noted that although Article 36 refers to a detainee's "rights," it does not discuss how those rights may be invoked. (21) The majority found that the rights were meant to facilitate the exercise of consular functions by states rather than to protect individuals, and that the signatories did not intend to allow individuals to invoke the rights in court. (22) Thus, the VCCR did not "unambiguously give Cornejo a privately enforceable right to be notified" (23) and was not enforceable under [section] 1983. (24)
Judge Nelson dissented. She argued that the majority had erroneously applied Gonzaga by requiring Cornejo to demonstrate "an intent to create remedies enforceable in American courts through [section] 1983." (25) Under Gonzaga, the establishment of an individual right makes it "presumptively enforceable by [section] 1983." (26) Thus, Article 36 did not need to specify how the consular notification right may be invoked because the clear language conferring individual rights was sufficient to establish a presumption of enforceability. (27) Judge Nelson reasoned that although the Senate likely did not foresee enforcement of the VCCR under [section] 1983 during ratification, such enforcement was required by post-ratification case law expanding the scope of [section] 1983. …