The Seventh Circuit Again Finds Jurisdiction for Private Remedies for Violations of Article 36 of the Vienna Convention on Consular Relations

Chimène I. Keitner & Kenneth C. Randall
May 16, 2007

As a party to the Vienna Convention on Consular Relations (VCCR), the United States has an obligation to ensure that a detained national of another party to the treaty is informed of the right to contact his or her consulate and request consular assistance.[1] The notification requirement of Article 36 of the VCCR has been at the center of a series of U.S. and international cases over what criminal procedural remedy is required for failure to notify.[2] In Jogi v. Voges, the U.S. Court of Appeals for the Seventh Circuit considered whether federal courts have jurisdiction to hear civil suits against state officials who fail to inform arrested or detained foreign nationals of their right to consular notification. In a March 2007 opinion, the Seventh Circuit concluded that claims for civil remedies for violations of the VCCR may be brought under 42 U.S.C. § 1983, a civil rights statute that provides individuals with a cause of action for violations by state officials of federally protected rights.[3] Upon issuing the opinion, the Seventh Circuit also withdrew an early opinion in which it had found jurisdiction over civil claims for failure to notify under the Alien Tort Statute (ATS).

The Jogi Litigation

In 1995, Tejpaul Jogi was convicted of aggravated battery with a firearm in Champaign County, Illinois. After serving six years of a twelve-year sentence, he was deported from the United States and returned to India.[4] In May 2000, prior to his deportation, Jogi filed acivil complaint in federal court alleging a violation of Article 36 of the VCCR. The district court found that Jogi's allegations did not trigger jurisdiction under the Alien Tort Statute (ATS), which provides U.S. federal courts with jurisdiction over civil actions "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."[5] In September 2005, a three-judge panel of the Seventh Circuit reversed the district court ("Jogi I"), holding that federal courts have jurisdiction over such claims under the ATS and also under general federal question jurisdiction.[6]

The Jogi I case presented the first instance in which a court was "directly confronted with the question whether a private civil action independent of the criminal proceeding may be based on the [Vienna] Convention."[7] Despite apparently contradictory language in the VCCR's preamble, the Seventh Circuit found that "Article 36 confers individual rights on detained nationals"[8] and that "the right conferred by Article 36 belongs to the individual, not to the respective governments."[9] In addition, the court noted that the International Court of Justice (ICJ), which was charged with resolving disputes among consenting parties to the VCCR, "has definitively announced that Article 36 gives rise to individually enforceable rights."[10] The Seventh Circuit "confine[d]" itself to according the ICJ's opinions "respectful consideration"[11] rather than binding effect, but expressed "the opinion that the United States is bound by ICJ rulings in cases where it consented to the court's jurisdiction, just as it would be bound by any arbitral procedure to which it consented"."[12] On the question of remedies, the court found that Article 36 created an "implied" private right to file suit based on the drafters' intent to make this provision individually enforceable.[13] This decision was significant because it departed from federal courts' general refusal to find implied private rights of action for treaty violations.

After the Seventh Circuit issued its 2005 decision, the defendant Illinois officials petitioned for a rehearing by the panel or a rehearing by the full court. The Seventh Circuit kept this petition on hold while the U.S. Supreme Court decided two 2006 cases involving criminal procedural remedies for violations of Article 36. In June 2006, the Supreme Court issued its opinion in the companion cases Sanchez-Llamas v. Oregon and Bustillo v. Johnson ("Sanchez-Llamas"), denying the requested criminal procedural remedies without reaching the question whether Article 36 creates an individually enforceable right.[14] Although Sanchez-Llamas addressed the effect of Article 36 violations on criminal proceedings, and not the jurisdiction of federal courts to hear civil actions based on Article 36, the opinion prompted the Seventh Circuit to reconsider its early opinion in the Jogi case. The Seventh Circuit invited submissions from the parties on the significance of the Supreme Court's decision in Sanchez-Llamas and, subsequently, on the availability of an individual right to sue under 42 U.S.C. § 1983 ("Section 1983") for an Article 36 violation.

On March 12, 2007, more than ten years after Jogi was arrested, the same panel that had found jurisdiction under both the ATS and federal question jurisdiction in 2005 ("Jogi I") replaced its prior opinion with a new opinion basing jurisdiction solely on federal question jurisdiction ("Jogi II"). The court in Jogi II had no difficulty finding subject matter jurisdiction under the federal question statute, 28 U.S.C. §1331, which "confers [federal] jurisdiction over claims arising under the 'Constitution, laws, or treaties of the United States.'"[15] It then found a cause of action under Section 1983, which creates a private right of action for the violation by state officials of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Although the United States government, acting as amicus curiae, had urged an interpretation of Section 1983 that would limit its reach to statutes passed by Congress and not to treaties,[16] the court rejected this restrictive interpretation. The panel found that a claim for an Article 36 violation gives rise to a claim under "federal law" and thus has a "more secure footing" as an action under the civil rights statute than as a direct claim for a treaty violation.

The Seventh Circuit noted, however, that in order for a treaty violation to constitute a cause of action under Section 1983, "the treaty must be self-executing; it must contain provisions that provide rights to individuals rather than only to states; and the normal criteria for a § 1983 suit must be satisfied."[17] Accordingly, the court repeated the analysis of Article 36 that it had conducted in Jogi I in order to reach the conclusion that Article 36 creates an individually enforceable right of the kind contemplated by Section 1983.[18] Jogi II pointedly leaves for "another day" the questions of whether a violation of Article 36 "amounts to a 'tort'" for the purpose of ATS jurisdiction, and whether courts may infer a direct private remedy for alleged violations of Article 36.[19]

While the Seventh Circuit's confirmation of federal jurisdiction is significant, the case will now be sent back to the district court, and the ultimate outcome is far from settled. The district court will have to determine whether Jogi filed his complaint within the applicable time limit, and whether the defendant Illinois officials are entitled to immunity. Having framed Jogi's claim as one under Section 1983, adjudication of those questions may be easier for the district court, as the rules of decision applicable to Section 1983 claims are well established.

Implications for Federal Jurisdiction for Violations of International Law

ATS plaintiffs have generally invoked both the ATS and federal question jurisdiction when they have filed claims in U.S. courts, but most federal courts have focused only on whether jurisdiction exists under the ATS. This approach follows the Second Circuit Court of Appeals's landmark 1980 decision in Filartiga v. Pena-Irala. There, the Second Circuit chose to rest jurisdiction on the ATS rather than general federal question jurisdiction "in light of [the ATS]'s close coincidence with the jurisdictional facts presented" in that case, which involved the torture and murder of a political activist's son in Paraguay by the Paraguayan Inspector General of Police.[20] The role of federal question jurisdiction in enabling federal courts to hear claims for international law violations remains largely unsettled.[21]

Much of the post-Filartiga case law demonstrates the reluctance of federal judges to find jurisdiction and thus assume authority over international law violations. Jogi II is a case in point. Even though the Seventh Circuit found subject matter jurisdiction, the court found it necessary to confirm what Jogi I had effectively concluded two years earlier, that federal question jurisdiction provides an alternative basis for jurisdiction over the claims brought by Jogi under the ATS. And even though the Jogi II court read the federal question provision liberally, requiring only that the plaintiff allege a treaty violation, it then repeated its extensive analysis from Jogi I to reach the conclusion that Article 36 gives rise to an individual right for the purposes of Section 1983. In other words, relying on federal question jurisdiction instead of the ATS did not avoid the need to determine whether the treaty provides a private right of action. According to the Seventh Circuit, litigants who seek to bring Section 1983 claims against state officials for treaty violations will still need to make this showing.

Although Jogi II validates the use of federal question jurisdiction as an alternative to jurisdiction under the ATS, federal question jurisdiction will not necessarily encompass a wider set of potential claims. Moreover, as federal case law progressively circumscribes the available causes of action under the ATS, plaintiffs may seek to file international law claims in state courts as claims for municipal torts"the very 'torts' that the First Congress sought to bring within federal jurisdiction because of their potential implications for international affairs.

About the authors

Kenneth C. Randall is the Dean and Thomas E. McMillan Professor of Law at the University of Alabama School of Law, and Special Counsel to the President of the University of Alabama. Chimène I. Keitner is a visiting faculty member at the University of Alabama School of Law (Spring 2007) and an Associate Professor of Law at the University of California, Hastings College of the Law


[1] Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261.

[2] See Frederic L. Kirgis, World Court Rules Against the United States in LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations, ASIL Insights (July 2001); The Texas Court of Criminal Appeals Decides Medellin's Consular Convention Case, ASIL Insights (December 2006); The Supreme Court Decides a Consular Convention Case, ASIL Insights(July 2006). See also a discussion of the Avena case, Pieter H.F. Bekker, Consular Notification and the Death Penalty: The World Court's Provisional Measures Order in Avena and Other Mexican Nationals (Mexico v. United States), ASIL Insights (April 2003).

[3] Jogi v. Voges, 2007 U.S. App. LEXIS 5713 at *4 (7th Cir. March 12, 2007) ("Jogi II").

[4] Jogi v. Voges, 425 F.3d 367, 369-70 (7th Cir. 2005) ("Jogi I"), superseded by Jogi II.

[5] 28 U.S.C. § 1350 (2006). On the wording of the statute, seeKenneth C. Randall, Federal Jurisdiction Over International Law Claims: Inquiries Into the Alien Tort Statute, 18 N.Y.U. J. Int'l L. & Pol. 1, 31 n.128 & 39 n.171 (1985).

[6] Jogi I at 373. The court noted that the ATS was not duplicative of general federal question jurisdiction when the ATS was enacted in 1789 because the general federal question provision, 28 U.S.C. § 1331, was not enacted until 1875, and because from 1875 to 1976 the federal question provision only applied if a certain threshold amount of money was at stake in the litigation. Id.

[7] Jogi I, 425 F.3d at 380.

[8] Id. at 382.

[9] Id. at 383.

[10] Id., citing Lagrand Case (Germany v. United States of America), 2001 I.C.J. 104, at ¶ 77 (Judgment of June 27) and Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. No. 128, at ¶ 139 (Judgment of March 31).

[11] Jogi I, 425 F.3dat 384, quoting Breard v. Greene, 523 U.S. 371 (1998).

[12] Jogi I, 425 F.3d at 384.

[13] Id.

[14] Sanchez-Llamas v. Oregon, 125 S.Ct. 2669 (2006), decided together with Bustillo v. Johnson (No. 05-51). See Frederic L. Kirgis, The Supreme Court Decides a Consular Convention Case, ASIL Insights(July 2006).

[15] Jogi II, 2007 U.S. App. LEXIS 5713 at *4. On § 1331 jurisdiction in international human rights cases, see generallyKenneth C. Randall, Federal Courts and the International Human Rights Paradigm 64-89 (1990).

[16] Jogi II, 2007 U.S. App. LEXIS 5713 at *10.

[17] Id. at *12.

[18] Missing from the repeated analysis, however, was the section without which the panel in Jogi I had declared its discussion would be "incomplete" the discussion of the ICJ's decisions. Compare Jogi I, 425 F.3d at 383-84, with Jogi II, 2007 U.S. App. LEXIS 5713 at *38.

[19] Id. at *4-*5.

[20] Filartiga v. Pena-Irala, 630 F.2d 876, 887 n.22 (2d Cir. 1980).

[21] In the U.S. Supreme Court's only decision involving the ATS, the majority left the relationship between § 1331 and § 1350 jurisdiction unresolved. See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 n.19 (2004) (opining in dicta that the scope of § 1331 jurisdiction over "common law claims derived from the law of nations" would not exceed that of § 1350). In a recent opinion replacing its prior opinion in Sarei v. Rio Tinto, the Ninth Circuit interpreted Sosa as "suggest[ing] that where a federal court has recognized an international law tort under the ATCA, the suit arises under federal common law," and that "where a case is brought by an alien for a "tort only," the jurisdictional burden under § 1350 and § 1331 is the same." Sarei v. Rio Tinto, PLC, 2007 U.S. App. LEXIS 8430 at *14 n.5 (9th Cir., Apr. 12, 2007).