page 802 note 1 Vienna Convention on Consular Relations, art. 36(1), Apr.24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 26 [hereinafter Vienna Convention],

page 802 note 2 Vienna Convention art. 36(l)(b).

page 802 note 3 Gandara v. Bennett, 528 F.3d 823 (11th Cir. 2008).

page 802 note 4 42 U.S.C. § 1983 (1994).

page 802 note 5 Id.

page 802 note 6 Medellin v. Texas, 128 S. Ct. 1346, 1356 n.2 (2008).

page 802 note 7 Gandara, 528 F.3d at 825.

page 802 note 8 Medellin, 128 S. Ct. at 1357 n.4.

page 802 note 9 Brief for the United States as Amicus Curiae Supporting Respondents, Sanchez-Llamas v. Oregon, 548 U.S. 331 (No. 04- 10566), 2004 U.S. Briefs 10566 at 2 [here in after Brief for the United States in Sanchez-Llamas].

page 802 note 10 Sanchez-Llamas v. Oregon, 548 U.S. 331, 366 (2006) (Breyer, J., dissenting, joined by Stevens, Souter, and Ginsburg, JJ.).

page 802 note 11 Gandara, 528 F.3d at 829.

page 802 note 12 See United States v. Duarte-Acero, 296 F.3d 1277, 1281-82 (11th Cir. 2002); Maharaj v. Sec'y for the Dep't of Corr., 432 F.3d 1292, 1307 (11th Cir. 2005); and United States v.Rodriguez, 162 Fed. Appx. 853, 857 (11th Cir. 2006).

page 802 note 13 See Brief for the United States in Sanchez-Llamas, supra note 9 at 3-5.

page 802 note 14 Sanchez-Lamas, 548 U.S. at 343.

page 802 note 15 See Briefs for the United States as Amicus Curiae Supporting Respondents, Gandara v. Bennett, 2007 WL 4983271(C.A.11); 2007 WL4983272(C.A.ll); and 2007 WL4983274(C.A.11).

page 802 note 16 See 2007 WL 4983274 at 11-15 (C.A.11).

page 802 note 17 Gandara, 528 F.3d at 838.

page 802 note 18 Id. Other domestic statutes - 28 U.S.C. § 1331 and 28 U.S.C. § 1350 - are mentioned in the opinion and pleadings as potentially creating a cause of action to which such a right may append, but they do not seem to be seriously in play.

page 802 note 19 See Gandara, 528 F.3d at 828.

page 802 note 20 See, e.g., Sanchez-Llamas, 548 U.S. at 376 (Justice Breyer contests that there is any such presumption).

page 802 note 21 Gandara, 528 F.3d at 827-29.

page 802 note 22 Id. at 839.

page 802 note 23 For example, while international court and arbitral decisionsaddress such matters extensively, they are rarely cited by U.S.courts.

page 806 note 1 Under Heck, to recover damages for harm caused by actions whose unlawfulness would make a conviction or sentence invalid, a plaintiff under 42 U.S.C. § 1983 must 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 determinations, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87.

page 806 note 2 Alternatively, we could simply find that Heck is inapplicable and remand the case to the district court.

page 806 note 3 See United States v.Stuart, 489 U.S.353,369 (1989)(“meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight“).

page 806 note 4 Domestic law controls the exercise of rights pursuant to paragraph 2 of Article 36. See Cornejo, 504 F.3d at 863.

page 806 note 5 We note that several district courts in our circuit have followed the lead of the Ninth Circuit. See Gardner v. Meggs, 2007 WL 3231734 (N.D. Ha., 2007) (following majority of districts and holding that Article 36 does not create an individual right enforceable by plaintiff where plaintiff alleges violation of civil rights by defendant's failure to advise him of his rights or acknowledge his status as a foreign national); Lopez v. Wallace, 2007 WL 2080307 (N.D. Ga., 2007) (holding that plaintiff has no “judicially enforceable” right to consular assistance under the VCCR even though plaintiff states that he was convicted and received his sentence without having an opportunity to contact the Colombian Consulate). This district court judgment in Lopez was affirmed in part, vacated and remanded in part without reaching the question at issue. 2008 WL 485416 (11th Cir. 2008). Although Medellin v. Texas, 128 S.Ct. 1346 (2008) (Medellin II) dealt with closely related questions, the Court specifically stated that it was not resolving “whether the Vienna Convention is itself ‘self-executing’ or whether it grants Medellin individually enforceable rights.” Id. at n.4.

page 811 note 1 As the majority notes in discussing the prior panel rule, the Eleventh Circuit cases finding the Convention does not grant private rights arose in the criminal context, not under 42 U.S.C. § 1983 (or, as Gandara also asserts in his complaint, under the Alien Tort Statute, 28 U.S.C. § 1350). Although there are obvious differences between the issues presented in the prior criminal cases and this civil one, in both types of cases the analysis for finding a private right is the same. Accordingly, as the majority recognizes, the law of this circuit is that the Convention does not confer individual rights that may be enforced through § 1983 (or § 1350).

page 811 note 2 See, e.g., Medellin v. Texas, 552 U.S, 128 S.Ct.1346, L.Ed.(2008) (“Medellin II “) (Stevens, J., concurring) (Breyer, J., dissenting, joined by Souter and Ginsburg,JJ.); Sanchez-Llamas v.Oregon, 548 U.S. 331,126 S.Ct. 2669,165 L.Ed.2d 557(2006) (Ginsburg, J., concurring) (Breyer, J., dissenting, joined by Stevens and Souter, JJ., and Ginsburg,J., in part); Medellin v. Dretke, 544 U.S. 660,125 S.Ct. 2088,161L. Ed. 2d 982 (2005) (“Medellin /“)(Ginsburg, J., concurring, joined by Scalia, J., in part) (O'Connor, J., dissenting, joined by Stevens, Souter, and Breyer, JJ.); Mora v. Peopleof the State of New York, F.3d, 2008 WL 1820836 (2d Cir. 2008); Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007) (Nelson, J., dissenting); Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007); United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en bane) (Torruella, C.J., concurring in part and dissenting in part). See also, e.g., Tim Wu, Treaties’ Domains, 93 Va. L. Rev. 571 (2007); Aya Gruber, Who's Afraid of Geneva Law?, 39 Ariz. St. L.J. 1017 (2007); John Quigley, Toward More Effective Judicial Implementation of Treaty-Based Rights, 29 Fordham Int 1 L.J. 552 (2006); David ⁶Sloss, When Do Treaties Create Individually Enforceable Rights?The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas, 45 Colum. J. Transnat'l L. 20 (2006); Kadish, Mark J., Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l L. 565 (1997)Google Scholar; Vazquez, Carlos Manuel, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695 (1995).CrossRefGoogle Scholar

page 811 note 3 In other words, a self-executing treaty is one that operates of itself without the aid of any legislative provision. Foster v.Neilson, 27 U.S. 253, 314, 2 Pet. 253, 7 L.Ed. 415 (1829).As the Supreme Court has explained,A [self-executing] treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. 247, 28 L.Ed. 798 (1884). A self-executing treaty's provisions are redressable through the courts. See id. ; Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed.386 (1888); Foster, 27 U.S. at 314.In contrast, a non-self-executing treaty is in the nature of a contract between nations; it does not stand alone as law. Its provisions can only be enforced pursuant to legislation designed to implement the treaty's provisions. It is enforced by the government of the respective parties to the instrument through diplomatic and political means. See Whitney, 124 U.S. at 194; Foster, 27 U.S. at 314.

page 811 note 4 Instead, most courts have simply referenced the statements of the Executive Branch made at the time the Convention was ratified that the Convention is self-executing. See S. Exec. Rep. No. 91-9 (1969). See also Report of the United States Delegation to the United Nations Conference on Consular Relations, Vienna, Austria, March 4 to April 22, 1963.

page 811 note 5 In conducting its analysis in Medellin II as to whether the Optional Protocol, ICJ Statute, and the United Nations Charter were self-executing, the Court looked carefully at their texts, searching for some indication that the signatory States intended the agreements to have domestic effect upon ratification. Additionally, although it primarily relied on the text in finding that an ICJ judgment did not of its own force constitute binding federal law, the Court also considered the treaties’ background, negotiating and drafting history, and the practice among signatory nations in reaching that conclusion. See Medellin II, 128 S.Ct. at 1367.

page 811 note 6 I should make clear that when speaking of self-execution in this respect I am referring to judicial redress of the Convention's provisions in the courts of this country, as opposed to the individual state authorities'obligation to comply with the treaty's provisions in the absence of implementing legislation.

page 811 note 7 Some courts have rejected the notion of individual rights in Article 36 based on such concerns. See Mora, 2008 WL 1820836, 11. While the Constitution's separation of powers is undoubtedly a factor in the decision of whether a treaty's provisions are self-executing, see Medellin II, 128 S.Ct. at 1369, the same degree of judicial restraint is not required on the issue of individual rights because presumably at mat stage of the analysis the treaty has been declared self-executing (or assumed to be so), which contemplates judicial enforcement of the treaty's provisions.

page 811 note 8 It should be noted that the validity of the presumption has been questioned. See, e.g., Sanchez-Llamas, 126 S.Ct. at 2697 (Breyer, J., dissenting) (insisting that “no such presumption exists.“) Additionally, some might find the presumption difficult to reconcile with the longstanding rule of treaty interpretation that holds where a treaty admits of two constructions, one restrictive of rights and the other favorable to them, the latter is preferred. See, e.g., United States v. Stuart, 489 U.S. 353, 368, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989); Asakura v. Seattle, 265 U.S. 332, 342, 44 S.Ct. 515, 68 L. Ed. 1041 (1924); De Geofroy v. Riggs, 133 U.S. 258, 268, 10 S.Ct. 295, 33 L.Ed. 642 (1890).

page 812 note 9 While Cornejo acknowledges the textual reference to “his rights'’ provides a compelling argument in favor of individual rights, Cornejo, 504 F.3d at 859, it nonetheless rejects that argument because the text “says nothing about the nature of 'his rights’ or tow, if at all, they may be invoked.” Id. (emphasis added). The majority shares the same concern. Ante, at 9. Additionally, although Mora does address the specific obligations in Article 36(1 )(b), the court decides that the obligation to notify a foreign detainee of his rights is not an enforceable right because the text does not correspondingly refer to the obligation as a “right” of the individual. Mora, 2008 WL 1820836, 6. Consistent with Cornejo and the majority, Mora also expresses concern for the lack of enforcement language in Article 36. See id. (“Nevertheless, we think that the lack of any mention in the text of Article 36(l)(b) as to whether or how detained foreign nationals might vindicate their asserted rights at least suggests that the drafters did not intend to confer rights directly upon individuals.“).

page 812 note 10 Looking at the obligation, the court should decide whether by the text's language the drafters intended to require receiving States to take action exclusively directed towards foreign detainees which is of a nature to be enforced by the courts of this country and to which our courts could look for a rule of decision. See Medellin I, 125 S.Ct. at 2103 (O'Connor, J., dissenting) (quoting Head Money Cases, 112 U.S. at 598- 99).

page 812 note 11 Although the Convention itself does not do so, for discussion purposes I identify these three obligations as subparts of Article 36(l)(b) (i.e., paragraph (l)(b)(l), (l)(b)(2), and (l)(b)(3).

page 812 note 12 Gandara complains that he was not notified of his Article 36(1 )(b) rights at the time of his arrest, in violation of Article 36(l)(b)(3). He also complains that later, after learning from another source that he had the right to contact his consul, prison officials refused his request to do so, in violation of Article 36(l)(b)(l).

page 812 note 13 Mora disagrees. Mora, 2008 WL 1820836, 6. It considers the absence of a specific reference to the word “right” fatal to finding an individually enforceable right in Article 36. As stated above, in my view the obligation's focus is what gives rise to the right without the need for a hyper-exacting word search of the text for what is otherwise obvious from its face.

page 812 note 14 I question precisely how foreign detainees would be beneficiaries of the obligation imposed by Article 36(l)(b)(3) as this provision makes no mention whatsoever of the consulate. The obligations in Article 36(l)(b)(l) and (2), on the other hand, directly implicate benefits accruing to the consulate; conced- edly, detainees are merely the intended beneficiaries of these obligations. Indeed, I view these two provisions as good examples of obligations that are self-executing in the sense that they are fully executed obligations of the receiving States, with which those States must comply at the risk of political consequences; they do not, however, create private rights enforceable by individuals in our courts. See Medellin I, 544 U.S. at 687 (O'Connor, J., dissenting).

page 812 note 15 The view that the text of Article 36(l)(b) undeniably conveys an individually enforceable right on detained foreign nationals is shared by many. See Sanchez-Llamas, 126 S.Ct. at 2691 (Breyer, J., dissenting, joined by Stevens, Souter, and Gins- burg, JJ.) (taking the position that Article 36 j>ives rise to judicially enforceable individual rights); Medellin I, 544 U.S. at 687 (O'Connor, J., dissenting); Jogi, 480 F.3d at 833 (stating that “[i]n our view, this text satisfies the strict test of clarity that the Supreme Court set forth in Gonzaga University“); Cornejo, 504 F.3d at 872 (Nelson, J., dissenting) (stating that “[i]t is clear that Article 36(1 )(b) confers an individual right.“); Li, 206 F.3d at 72 (Torruella, C.J., concurring in part, dissenting in part) (stating that ‘ ‘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 detaining authority.“).

page 812 note 16 As Cornejo states, in many respects treaties ‘ ‘come with their own rules of the road.” Cornejo, 504 F.3d at 858 n.9. I recognize that treaties are to be interpreted ‘ ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Restatement § 325(1). Also, I do not question that a treaty's negotiation and drafting history as well as ‘“the postratification understanding'” of signatory nations may be considered as ‘“aids to its interpretation.'” Medellin II, 128 S.Ct. at 1357 (citations omitted). As previously noted, however, the sine qua non of treaty interpretation is the treaty's text. See Medellin II, 128 S.Ct. at 1365 n. 11.

page 812 note 17 Many courts, including other Eleventh Circuit panels, have relied in large part on the Convention's preamble to conclude that Article 36 does not confer enforceable individual rights. See, e.g., United States v. Duarte-Acero, 296F.3d 1277, 1281— 82 (11th Cir. 2002); Maharaj v. Sec'y for the Dep't ofCorr., 432 F.3d 1292, 1307 (11th Cir. 2005); United States v. Jime- nez-Nava, 243 F.3d at 197; United States v. Emuegbunam, 268 F.3d at 392.

page 812 note 18 The Report of the United States Delegation to the United Nations Conference on Consular Relations is consistent with this understanding. It notes that the Convention ‘ ‘rest[s] upon the premise that privileges and immunities are granted for governmental reasons, rather than for the benefit of officers, members of families, and employees, as individuals.” Report of the United States Delegation to the United Nations Conference on Consular Relations, Vienna, Austria, March 4 to April 22, 1963).

page 812 note 19 Cornejo notes that “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 the failure should be compensated.” Cornejo, 504 F.3d at 861, n. 14 (quoting dissent in United States v. Lombera-Camorlinga, 206 F.3d 882, 895 (9th Cir. 2000)). Relying on Cornejo, the majority likewise finds it significant that the Convention does not contemplate private damage actions. See ante, at 10.

page 812 note 20 Cornejo and the majority conclude that Gandara cannot bring a claim for damages under § 1983 for violation of the Convention because he has no judicially enforceable individual right to do so. In this special concurrence I have addressed only the question of whether Article 36 confers individually enforceable rights, not whether a remedy for the alleged violation of Article 36 exists under § 1983 (or § 1350). Given that the right in Article 36(l)(b), to the extent it may exist, is a rightof notification as opposed to a right of assistance, see Sanchez-Llamas, 126 S.Ct. at 2681 and discussion, infra, it is difficult to imagine what relief could be fashioned to remedy a violation, beyond injunctive relief, even under our domestic law. In this regard, I would note that I appreciate the concern raised by Cornejo and the majority over “conjur[ing] a legal theory that might expose individual officers, to liability for breaches of international treaties.” Cornejo, 504 F.3d at 861 n.14. Due to the speculative nature of any injury resulting from the violation of a right to notification conferred under Article 36(1 )(b), however, even if the injury were compensable, I do not envision the availability of more than nominal damages and injunctive relief. See Slicker v. Jackson, 215 F.3d 1225 (1 lth Cir. 2000) (stating that “a § 1983 plaintiff whose constitutional rights are violated is entitled to receive nominal damages even if he fails to produce any evidence of compensatory damages … .“); see also Sanchez-Llamas, 548 U.S. at 2682 (suggesting that, assuming an individually enforceable right under Article 36 exists, in the proper circumstances a court could make “appropriate accommodations” to ensure that a criminal defendant secured the benefits of consular assistance through injunctive relief). Of course, in all cases brought against an individual officer under § 1983 for violation of the Convention qualified immunity would provide a defense to suit and in many cases would preclude a finding of liability.

page 813 note 21 Although Article 36 does not mention a specific remedy or means of enforcing the rights in subparagraph (l)(b), it does arguably contain “remedy-type” language, which may suggest an intent by the signatory States that the article be judicially enforceable. As the Supreme Court has explained,'’ [t]he Convention does not prescribe specific remedies for violations of Article 36. Rather, it expressly leaves the implementation of Article 36 to domestic law: Rights under Article 36 are to ‘be exercised in conformity with the laws and regulations of the receiving State.'” Sanchez-Llamas, 126 S.Ct. at 2678. Indeed, the Supreme Court has referred to this very language in holding that state procedural rules can operate as a bar to the post-conviction assertion of a violation of Article 36(1). Sanchez-Llamas, 126 S.Ct. at 2687 (holding that the Convention does not preclude the application of state procedural bars); Breard, 523 U.S. at 379 (applying Virginia's procedural default rules to a Vienna Convention claim in the habeas context).

page 813 note 22 As others have noted, issues raised in connection with Article 36 may have national significance because they may affect not only foreign nationals detained on our soil but also may have implications for U.S. citizens detained abroad. See, e.g., Sanchez-Llamas, 126 S.Ct. at 2692 (Breyer, J., dissenting, joined by Stevens, Souter, and Ginsburg, JJ.) (observing that the United States, as stated in the State Department's Foreign Affairs Manual, has long stressed the importance of Article 36's provisions to U.S. citizens who have been arrested or imprisoned outside our borders); William J. Aceves, Murphy v. Netherland, 92 Am. J. Int'l L. 87, 89-90 (1998) (noting that consular access serves the needs of foreign nationals and also, among other things, enables governments to monitor the safety and fair treatment of their citizens abroad).