International Law - Treaty Remedies - Seventh Circuit Finds Implied Right of Action in Vienna Convention on Consular Relations
INTERNATIONAL LAW--TREATY REMEDIES--SEVENTH CIRCUIT FINDS IMPLIED RIGHT OF ACTION IN VIENNA CONVENTION ON CONSULAR RELATIONS.--Jogi v. Voges, 425 F.3d 367 (7th Cir. 2005).
It has been said that treaties are compacts (1) or contracts (2) among nations rather than conventional "law." Little wonder, then, that fitting them within the domestic legal framework is so vexing. Recently, in Jogi v. Voges, (3) the Seventh Circuit concluded that the Vienna Convention on Consular Relations (4) provides foreign defendants with an implied cause of action to enforce their rights under the Convention, becoming one of the first courts in the country to allow monetary damages as a remedy for breach of the "right to consul." Though awarding damages is preferable to either disregarding the treaty or invoking the exclusionary rule, Jogi's strained analysis demonstrates that the traditional congressional intent-oriented approach to finding implied causes of action in statutes is inappropriate for treaties. And although Jogi's approval of damages for Convention violations may protect the public's interest in justice at home as well as in protection while traveling overseas, similar treaty enforcement in the future is uncertain unless courts adopt an interpretive approach that recognizes the differences between international agreements and domestic laws.
In 1995, Tejpaul Jogi, a citizen of India residing in the United States, was charged with aggravated battery with a firearm in Champaign County, Illinois. (5) Although investigators were likely aware of Jogi's Indian citizenship, (6) he was never informed of his right under Article 36 of the Vienna Convention on Consular Relations to contact the Indian consulate for legal assistance. (7) After pleading guilty, serving six years of his twelve-year sentence, and being removed to India, Jogi filed a complaint in federal court seeking compensatory, nominal, and punitive damages against county officials, (8) citing the Alien Tort Statute (9) (ATS) to establish subject matter jurisdiction. (10)
Without reaching the issue of whether the Vienna Convention provides an individual right to consular assistance after arrest, the United States District Court for the Central District of Illinois held that the alleged violation did not fall under the ATS. (11) Noting that the statute triggers jurisdiction only in cases of "shockingly egregious violations of universally recognized principles of international law," (12) the court found that no such violation occurred because Jogi was unable to name a "specific prejudice or harm from the Indian consulate's lack of involvement." (13) After observing that Jogi was read his Miranda rights and provided with court-appointed counsel, the court held that the defendants' actions were not of the extreme sort the ATS sought to prevent and dismissed Jogi's complaint with prejudice. (14)
The Seventh Circuit reversed and remanded for further proceedings. (15) Writing for a unanimous panel, Judge Wood (16) relied on the recent Supreme Court decision Sosa v. Alvarez-Machain (17) for the proposition that the ATS confers jurisdiction on the federal courts for any tort claim alleging a violation of a binding U.S. treaty. (18) To reach this conclusion, the court began by recognizing that Sosa is applicable and jurisdiction proper only if the Vienna Convention both creates an individual right enforceable in court and is self-executing. (19) In response to the latter, the court noted that the Convention's obligatory language reveals the signatories' intent that the Convention be self-executing: referring to several government statements and judicial opinions reaching the same conclusion, (20) the court concluded that the treaty required no congressional implementation. (21)
Turning to the question of an individual right to consul, the court acknowledged the "obvious tension" (22) between the Convention's Preamble, which states that its privileges are "not to benefit individuals," (23) and its Article 36, which requires authorities to inform a foreign national "without delay" of his right to contact his consulate after arrest or detention. …