* Ms. Keitner is Associate Professor of Law at UC-Hastings. Mr. Randall is Dean and McMillan Professor of Law, and Special Counsel to the President, The University of Alabama.

* This text was reproduced and reformatted from the text appearing at the website: (visited December 3, 2007) <http://www.ca9.uscourts.gov/ca9/newopinions.nsf/713CF95DFFD94EBE882573600052F4AD/$file/0556202.pdf?openelement>

1 April 24, 1963, 21 U.S.T. 77, 100-101, 569 U.N.T.S. 261.

2 The complaint says nothing about a prosecution or conviction, nor does the record contain any such evidence. Accordingly, we assume that Heck v. Humphrey, 512 U.S. 477 (1994), which precludes a § 1983 action when a judgment in favor of the plaintiff would necessarily imply invalidity of his conviction or sentence unless the conviction or sentence has already been invalidated, is not implicated.

3 We note that a claim for violation of state law is not cognizable under § 1983. See Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).

4 Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978) (holding that a plaintiff states a civil rights claim against a municipality under § 1983, by showing that he has suffered a deprivation of a constitutionally protected interest; and that the deprivation was caused by an official policy, custom or usage of the municipality).

5 The Convention entered into force oh March 19, 1967. See 596 U.N.T.S. at 261.

6 Sitting en banc in Lombera-Camorlinga, we vacated a panel opinion holding that Article 36 created an individual right that was enforceable by way of a motion to suppress evidence of post-arrest statements made by a foreign national before being advised of the right to notification of this consulate. 206 F.3d at 883. Although we discussed the panel's holding and noted there was “some support” for this view, we did not decide the issue because we held that even if some judicial remedies are available for violation of Article 36, the exclusion of evidence is not one of them. Id. at 885.

7 The Court granted certiorari in Medellin v. Dretke, 544 U.S. 660 (2005), to consider whether a federal court is bound by a ruling of the International Court of Justice, but dismissed it as improvidently granted in light of an intervening memorandum from the President that the United States would discharge its international obligations.

8 We note the government's submission that “laws” cannot include treaties, but we have no need to confront the issue given our disposition. Rather, we assume for purposes of this case that a treaty such as this one that is self-executing and thus law, has that status. See Baldwin v. Franks, 120 U.S. 678 (1887); Maine v. Thiboutot, 448 U.S. 1 (1980).

9 The dissent ignores the canons that apply to international agreements, and otherwise goes off track by treating this case as if it involved a statute instead of a treaty. For example, the dissent accuses us of misunderstanding Gonzaga, dissenting op. at 13001, 13004-05, 13010, 13015 — but the question there was whether a private right of action could be implied in spending legislation; Gonzaga does not purport to answer the question before us, which concerns how a treaty is to be interpreted. Treaties are different from statutes, and come with their own rules of the road.

10 Few cases have permitted private enforcement of a treaty in U.S. courts. See, e.g., Kolovrat, 366 U.S. at 191 (heirs could invoke 1881 Treaty of Friendship, Navigation, and Commerce between the United States and Yugoslavia to secure inheritance denied by Oregon law); Olympic Airways v. Husain, 540 U.S. 644,646 (2004) (“Article 17 of the Warsaw Convention … imposes liability on an air carrier for a passenger's death or bodily injury caused by an ‘accident’ that occurred in connection with an international flight.“) Other treaties, by their terms, provide a forum in domestic courts for adjudicating treaty violations. See United States—Ecuador Bilateral Investment Treaty art. VI, cl. 2(a), August 27, 1993, S. Treaty Doc. 103-15 (1993) (foreign national may bring claims arising from investment dispute “to the courts or administrative tribunals of the [State] that is a party to the dispute“).

11 There are two routes for remedying violations of Article 36: diplomatic channels through which governments may protest failure to observe the terms of Article 36, and dispute resolution through The Optional Protocol Concerning the Compulsory Settlement of Disputes, April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487. Diplomacy is obviously a mechanism belonging to States. The Protocol likewise applies only to parties, and only States are parties. It provides that disputes arising out of the interpretation or application of the Convention shall be within the compulsory jurisdiction of the International Court of Justice (ICJ) and may be brought before the ICJ “by an application made by any party to the dispute being a Party to the present Protocol,” art. I, or to an arbitral tribunal by agreement of “[t]he parties,” art. II. Only States are parties to the Convention, and only States may bring proceedings before the ICJ. The United States joined the Protocol, but has since noticed its withdrawal. Letter from Condoleeza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations (March 7, 2005).

12 The dissent faults us for buttressing our conclusion with ‘ ‘extratextual sources,” dissenting op. at 13004-015, but the terms of a treaty are by canon and international convention construed in light of the treaty's object and purpose, including its preamble. Treaty Convention art. 31(2); Restatement § 325(1). Because it is a treaty that is being interpreted, the meaning given to its terms by the Department of State is entitled to great weight. Sanchez-Llamas, 126 S. Ct. at 2685. And subsequent practice also matters. Restatement § 325(2).

13 We rely on the Preamble not to create an ambiguity, as the dissent implies, dissenting op. at 13006 (quoting Jogi that to do so is a mistake), but to provide context for the terms of Article 36(l)(b). This is perfectly proper, for a treaty must be interpreted as a whole in light of its object and purpose, including the preamble. Treaty Convention art. 31(2); Restatement § 325(1). As the Preamble to the Vienna Convention specifically says, this particular treaty was meant to facilitate consular functions. Article 36(l)(b) does this, by allowing consular officials to aid their nationals.

14 As Judge Thomas put it, dissenting from our refusal to apply the exclusionary rule in Lombera-Camorlinga, The Treaty does not provide expressly for private damage actions. Rather, the plain words of the Treaty provide that the notification right “shall be exercised,” not that failure to notify should be compensated. Thus, the Treaty would not seem to contemplate private dam- age actions, and it would not be sound judicial policy to conjure legal theory that would expose individual officers to liability for breaches of international treaties. The decision on whether to attach individual liability for such violations should be left to Congress. 206 F.3d at 895.

15 Li additionally notes that a 1970 letter sent by a State Department legal adviser to the governors of the fifty states after the Convention was ratified advised that the Department did “not believe that the Vienna Convention will require significant departures from the existing practice within the several states of the United States.” 206 F.3d at 64. As the court remarked: ‘ ‘Needless to say, the creation of rights on par with those guaranteed by the Fourth, Fifth, and Sixth Amendments to the United States Constitution would constitute just the sort of ‘significant departure[ ]’ disclaimed by this letter.” Id.

16 In LaGrand, for example, Germany brought a claim in the ICJ for breach of Article 36 by the United States and, invoking its right of diplomatic protection, also contended that the breach violated the individual rights of the LaGrand brothers who had not been informed of their rights under Article 36, paragraph 1. The ICJ concluded that the individual rights could be invoked in that court by the national State of the detained person. 2001 I.C.J, at 494, § 77. By invoking diplomatic protection, and espousing the claim of its national in the ICJ, Germany was in reality “asserting its own rights.” The Mavrommatis Palestine Concessions, 1924 P.C.I.J. (ser. A)No. 2, at 11-12 (August 30) (emphasis added). Page no:184

1 The majority seems to imply that the analysis in Gonzaga does not apply because this case involves a treaty and not a statute. Maj. op. at 12991 n 9. In particular, the majority explains that treaties are different from statutes and contends that treaties “come with their own rules of the road.” Yet the majority Cites no authority to support employing a different standard for determining whether a treaty is enforceable under § 1983 than the standard which the Supreme Court applied to statutes in Gonzaga. See id. Adopting a distinct standard would be contrary to the approach taken by the Seventh Circuit in Jogi, which is the only court that “has answered .. . squarely, [the question of whether Article 36 of the Vienna Convention was enforceable under § 1983].” See maj. op. at 12989. The Seventh Circuit clearly applied the Gonzaga standard and held that individual rights, once identified in the treaty, were presumptively enforceable under § 1983. See Jogi, 480 F.3d at 827-836. Thus, by not applying the Gonzaga. standard, the majority creates its own novel standard for determining whether a treaty is enforceable under § 1983. This novel approach is one with which I cannot concur.

2 For the same reason, the government's representation that “none of the 170 State parties has permitted a private tort suit for damages for violation of Article 36” is off the mark. The presumptive remedy for a violation of a treaty right is found in § 1983 of our domestic law not in the Vienna Convention. It is important to note that a suit under § 1983 is not a tort suit, instead it is a unique domestic remedy for violations under color of State law. See 42 U.S.C. § 1983. It is therefore not surprising that we are the only State that would permit private suits because we are likely the only State that has a § 1983 enforcement remedy or anything analogous to it.

3 For a discussion generally in agreement with my conclusion that Article 36(1 )(b) was intended by the drafter to confer individual rights on foreign nationals, see 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 (1997).

4 For example, the delegates of New Zealand, the United Arab Republic, and the Federation of Malay each individually expressed concern with the burden of notification on the receiving States, particularly those States that received large numbers of immigrants and foreign tourists. 1 United Nations Conference on Consular Relations: Official Records of the Eleventh Plenary Meeting at 36, § 9-10 (April 17, 1963).

5 In particular, after a motion for reconsideration of Article 36(1 )(b) passed, a proviso was proposed by a 17-state bloc to be added at the beginning of the text of Article 36(1 )(b) stating, “unless [the foreign national] expressly opposes it, the competent authorities shall inform the competent consulate of the sending State.” Id. at § 54-55. The proviso had the purpose of’ ‘relieving the receiving State of the automatic duty to inform the consul of the arrest of the person concerned.'’ Id. at § 56. It also was included as recognition of the ‘ ‘need to take into consideration the prisoner's own freedom of choice.'’ Id. In order to lessen the burden on State authorities, the delegate from the United Arab Republic proposed an amendment to replace the proviso ‘ ‘unless he expressly opposes it'’ with “if he so requests.” Id. at § 62. The delegate thus sought to transfer responsibility from the State to notify the consul to the individual to request notification.

6 Specifically, the delegate from the United Kingdom was concerned that the proviso as originally stated (“unless he expressly opposes it“) or as proposed by the delegate of the United Arab Republic (“if he so requests“) could give rise to abuses and misunderstandings. To address the potential for abuse, the delegate felt that ‘ ‘it was essential to introduce a provision to the “effect that the authorities of the receiving State should inform the person concerned without delay of his rights under sub-paragraph (b).” Id. at § 73. In other words, to ensure that the foreign national knew of his right to request that his consul be informed of his detention under Article 36(1 )(b), he needed to be informed of his right to make the request. Article 36(l)(b) with the proviso, “if he so request” and the inclusion of the amendment suggested by the United Kingdom delegate (“The said authorities shall inform the person concerned without delay of his rights under this subparagraph“), which is the last sentence of Article 36(1 )(b) as currently written, received a two-thirds vote.