Gandara v. Bennett

¶6FAY, Circuit Judge:

¶7The question presented in this matter is whether a foreigner who has been arrested and detained in this country and alleges a violation of the consular notification provisions of the Vienna Convention on Consular Relations (the “Treaty”) can maintain an action under 42 U.S.C. § 1983. The answer to this question hinges on whether or not individual rights are bestowed by the Treaty. Although we find the issue a close one with strong arguments on both sides, we ultimately conclude the answer is “no.”

¶8Appellant, Hector Gandara (“Gandara”) is a foreign national who was arrested and sentenced in state court for false imprisonment. He claims that while he was a detained foreign national, the Glynn County Detention Center officers (“Appellees”) neither informed him of, nor provided him with, the right to consular notification under the Treaty. On appeal, Gandara argues that the district court erroneously dismissed his complaint contending that the Treaty grants him an individual right to seek civil damages in a United States federal court under 42 U.S.C. § 1983.

¶9Factual Background

¶10Gandara, an immigrant from Uruguay, entered the United States on a 90-day temporary visa. After his visa expired on June 22, 2002, he illegally remained in the country. On September 11, 2004, Gandara was arrested in Glynn County, Georgia and charged with false imprisonment. He pled guilty and was sentenced to five years in prison and five years of probation. Gandara claims that following his arrest and during the pendency of his criminal proceedings, the Appellees did not inform him of his right to contact the Uruguayan consulate and receive legal representation pursuant to Article 36 of the Treaty. Gan-dara also claims that Appellees subsequently denied his specific request that he be allowed to contact his consulate. As a result, Gandara asserts that these violations prevented him from obtaining needed consular assistance in order to notify family members in Uruguay of his arrest and solicit funds to obtain improved legal representation, facilitate his deportation to Uruguay instead of prosecution, and/or arrange for his sentence to be served in Uruguay rather than Georgia. Gandara sought a declaratory judgment, compensatory damages, and punitive damages for these alleged violations.

¶11After an independent review of the record, the district court adopted the Report and Recommendation of the U.S. Magistrate Judge, which recommended that Gandara’s complaint be dismissed on the grounds that it failed to state a cognizable claim under § 1983 and analogized the relief sought by Gandara to that in a habeas corpus petition. Gandara filed an objec*826tion to the Report and Recommendation and argued, among other things, that the district court improperly relied on Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). He pointed out that he was not challenging his criminal conviction or his sentence, but was seeking civil damages and relief to remedy the violation of his Vienna Convention rights. We affirm the district court’s judgment albeit for different reasons.

¶12Standard of Review

¶13We review a grant of a motion to dismiss for failure to state a claim de novo, “accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.2004).

¶14Discussion

¶15We begin by noting that the district court improperly dismissed Gandara’s complaint by relying on Heck v. Humphrey to decide that Gandara’s civil complaint on alleged violations of the Treaty was barred because his criminal conviction had not been set aside and a judgment in a § 1983 case could affect the validity of his conviction or sentence.1 Under the Supreme Court’s ruling in Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006), a violation of the Vienna Convention’s Article 36 does not necessarily require reversal of a criminal conviction or sentence. Thus, in our opinion, Heck does not bar the claim being made here. Gandara is not attacking the validity of his criminal conviction or sentence, but rather pursuing a civil claim for money damages and other civil remedies. There is no legal inconsistency.

¶16This Circuit has not expressly addressed the issue of whether the Vienna Convention contains private rights and remedies enforceable in our courts through § 1983 by individual foreign nationals who are arrested or detained in this country. We have previously commented, however, on the issue of private rights in the context of criminal cases and indicated that we would follow the lead of the First and Ninth Circuits. See United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir.2000) (the First and Ninth Circuits have indicated that Article 36 does not create privately enforceable rights). Today, for practical and judicial economy reasons, we are going to decide the specific issue presented.2

¶17A reading of the text of the Treaty suggests that the scenario established would include several steps: (1) Upon arrest and detention, the foreign national would be advised of the notification procedures established and available, (2) The individual would be asked whether or not he/she desires notification to be given to the consular post of his/her state, and (3) Depending upon the decision made by the individual, notice would be given or no action taken.

¶18All who have dealt with this issue recognize the language of the Treaty’s preamble, which states that “the purpose of such privileges and immunities [created by the *827Treaty] is not to benefit individuals .... ” Vienna Convention on Consular Relations, pmbl. In spite of this provision, those who find that there are individual rights turn to Article 36, which reads:

[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.

¶19Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, art. 36(l)(b) (emphasis added). The Seventh Circuit in Jogi v. Voges, 480 F.3d 822 (7th Cir.2007), concluded that Article 36 is worded in a way to guarantee that the right conferred by Article 36 belongs to the individual and not the respective governments. That court reasoned that “[i]t is a mistake to allow general language of a preamble to create an ambiguity in specific statutory or treaty text where none exists. Courts should look to materials like preambles and titles only if the text of the instrument is ambiguous.” Id. at 834. That court concluded that once a plaintiff has demonstrated that a treaty confers an individual right, then the right is presumptively enforceable by § 1983. See id. at 835; Gonzaga University v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

¶20The dissenting opinion in Cornejo v. County of San Diego, 504 F.3d 853, 872 (9th Cir.2007) also follows this reasoning, by stating that:

[I]t is clear that Article 36(l)(b) confers an individual right. Insofar as it is relevant, the language in the preamble of the Vienna Convention, the congressional intent of the ratifying Senate, the contemporaneous position of the United States Department of State and the tra-vaux préparatoires do not undermine this interpretation. In fact, the contemporaneous position of the United States Department of State and the discussion of Article 36(l)(b) in the travaux prépar-atoires supports my conclusion that Article 36(l)(b) confers an individual right.

¶21This dissent, like Jogi, urges that these individual rights are presumptively enforceable under § 1983.

¶22While the above arguments in favor of individual rights under the Treaty are impressive, we do not follow them for the following reasons.

¶23First, the “context” of a treaty includes its preamble, Vienna Convention on the Law of Treaties art. 31(2), May 23, 1969, 1155 U.N.T.S. 331, and we rely on it to provide context for the terms of Article 36(l)(b) because “a treaty must be interpreted as a whole in light of its object and purpose, including the preamble.” Cornejo, 504 F.3d at 861 n. 13 (citing Vienna Convention on the Law of Treaties art. 31(2); Restatement (Third) of Foreign Relations Law § 325(1) (1987)). The preamble to the Vienna Convention is clear that the drafters did not intend to create individual rights. It states that the signatories “[r]ealiz[ed] that the purpose of such privileges and immunities [created by the Treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.” Vienna Convention on Consular Relations, pmbl. (emphasis added). Indeed, this language has led this court to conclude that “the Vienna Convention itself disclaims any intent to create *828individual rights[.]” United States v. Duarte-Acero, 296 F.3d 1277, 1281-82 (11th Cir.2002); see also Maharaj v. Sec’y for the Dep’t of Corr., 432 F.3d 1292, 1307 (11th Cir.2005) (containing clear language that the Convention did not create individual rights); United States v. Rodriguez, 162 Fed.Appx. 853, 857 (11th Cir.2006) (relying on Duarte-Acero and concluding that “[t]he Vienna Convention does not confer judicially enforceable individual rights”).

¶24Second, we find the majority opinion in Cornejo very persuasive. As stated there:

Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and promote consular functions. Consular functions include protecting the interests of detained nationals, and for that purpose detainees have the right (if they want) for the consular post to be notified of their situation. In this sense, detained foreign nationals benefit from Article 36’s provisions. But the right to protect nationals belongs to States party to the Convention; no private right is unambiguously conferred on individual detainees such that they may pursue it through § 1983.

¶25Cornejo, 504 F.3d at 855. Cornejo further emphasizes that “[f]or any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing.” Id. at 856. The Vienna Convention is self-executing because it has the force of domestic law without Congress having to implement legislation. However, “all self-executing treaties do not necessarily provide for the availability of such private actions.” Id. at 857 (quoting Renkel v. United States, 456 F.3d 640, 643 n. 3 (6th Cir.2006)).

¶26Even though treaties may accord enforceable individual rights, most courts accept a “presumption” against inferring such rights from international treaties. Thus, the general rule is that “[ijnterna-tional agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts, but there are exceptions with respect to both rights and remedies.” Cornejo, 504 F.3d at 859 (quoting Restatement (Third) of Foreign Relations Law § 907 cmt. a (1987)). Furthermore, the use of the word “rights” in paragraph 1(b) “arguably confers on an individual the right to consular assistance following arrest.” Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). But paragraph 1(b), does not address the nature of “his rights” or how, if at all, they may be invoked. Therefore, this language must be considered in light of the purpose of the Treaty and Article 36. See Cornejo, 504 F.3d at 859 (citing Restatement (Third) of Foreign Relations Law § 325(1) and noting that treaty terms are to be construed in their context and in the light of the treaty’s object and purpose). Hence, the “rights” conferred under Article 36 are meant to facilitate the exercise of consular functions. We agree with the majority opinion of the Ninth Circuit, which summarizes very well the position that the Treaty simply fails to confer individual rights that may be judicially enforced.

¶27Third, the Vienna Convention does not expressly provide for private damage actions. Instead, “the plain words of the Treaty provide that the notification right ‘shall be exercised,’ not that failure to notify should be compensated.” Cornejo, 504 F.3d at 861 n. 14. Therefore, we conclude that the Treaty does not contemplate private damage 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.” Id.

¶28*829Moreover, the position of the United States Department of State, which is entitled to “great weight,” also reinforces this view.3 The Department of State has repeatedly affirmed that “the only remedies for failures of consular notification under the Vienna Convention are diplomatic, political, or exist between the states under international law ... [t]he right of an individual to communicate with his consular official is derivative of the sending state’s right to extend consular protection to its nationals[.]” Cornejo, 504 F.3d at 862 (quoting United States v. Li, 206 F.3d 56, 63 (1st Cir.2000)).

¶29In addition, the travaux preparatories of the Vienna Convention supports the State Department’s position: “[Tjhere is no indication that States intended the enforcement of a ‘right’ to consular notification in the courts of the receiving State.” Cornejo, 504 F.3d at 863. Even if the travaux preparatories were susceptible to different interpretations, it would be imprudent under domestic law to create a privately enforceable right that is not explicitly found in the text.4

¶30And lastly, but certainly not least, is our court’s prior panel rule. This rule is simply that “we are bound by the holdings of earlier panels unless and until they are clearly overruled en bane or by the Supreme Court.” Swann v. S. Health Partners, Inc., 388 F.3d 834, 837 (11th Cir.2004). Our earlier panels were dealing with criminal cases and not claims under § 1983. However, from those opinions, the announced rule is that the Vienna Convention does not confer enforceable individual rights. Although the issues in our earlier cases differed somewhat, the analysis is exactly the same. That is the law of our circuit.5

¶31Conclusion

¶32For these reasons, we affirm the judgment of the district court.

¶33AFFIRMED.

¶39RODGERS, District Judge,

¶40specially concurring:

¶41I concur in the result reached by the majority because I agree we are bound by prior panel decisions that have concluded the Vienna Convention on Consular Relations (“the Convention”) does not confer individually enforceable rights on detained *830foreign nationals.1 I write separately because the majority and Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir.2007), the decision on which the majority so heavily relies, address many — but, in my view, not all — aspects of the complex issues presented in this case, several of which are the subject of considerable scholarly debate among jurists and commentators.2 I write also to explain my concern over elements of the rationale relied on by the majority and Cornejo, primarily pertaining to interpretation of the Convention’s text, to conclude that Article 36 does not confer judicially enforceable individual rights.

¶42An issue of threshold importance in this case (or any case that requires a court to consider whether a treaty’s provisions may be subject to judicial enforcement) is whether the treaty is self-executing. See Cornejo, 504 F.3d at 856 (stating that “[f]or any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing.”) (emphasis added). Briefly stated, a self-executing treaty is one that has “automatic domestic effect as federal law upon ratification.” Medellin II, 128 S.Ct. at 1356 n. 2. It is “immediately and directly binding on state and federal courts pursuant to the Supremacy Clause.” Id. at 1360. “Conversely, a ‘non-self-executing’ treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.”3Id.*831at 1356 n. 2. Accordingly, even if Article 36 gives rise to individual rights, if the Convention is not self-executing and does not have implementing legislation enacted by Congress a plaintiff cannot enforce those rights under our domestic law.

¶43As far as I am aware, the lower courts that have addressed the question of whether Article 36 grants individually enforceable rights, including the majority in this case and Cornejo, have concluded that the Convention is self-executing. See ante, at 828; Cornejo, 504 F.3d at 855. See also Jogi 480 F.3d at 830 (accepting the parties’ undisputed representations that the Convention is self-executing); Breard v. Pruett, 134 F.3d 615, 622 (4th Cir.1998) (Butzner, S.J., concurring) (stating that “[t]he Vienna Convention is a self-executing treaty — -it provides rights to individuals rather than merely setting out the obligations of signatories.”); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996) (assuming the same). See also Sanchez-Llamas, 126 S.Ct. at 2694 (Breyer, J., dissenting, joined by Stevens, Souter, and Ginsburg, JJ.) (stating “it is common ground that the Convention is self-executing.”); see also Mora, 524 F.3d 183, 193 n. 16 (finding it unnecessary to decide the question.). Unfortunately, these courts have assumed or held that the Convention is self-executing with little or no analysis of the treaty’s text.4

¶44Recently, the Supreme Court expressly noted, albeit with virtually no discussion, .that it has not yet decided whether the Vienna Convention is self-executing. See Medellin II, 128 S.Ct. at 1357 n. 4 (stating that because the question before the Court was whether an International Court of Justice (“ICJ”) decision was binding on United States courts under the Optional Protocol, ICJ Statute, and the United Nations Charter, it was “unnecessary to resolve whether the Vienna Convention is itself ‘self-executing’ or whether it grants Medellin individually enforceable rights.”). Even so, in discussing the approach to be taken in analyzing international agreements, the Court stressed that for a treaty to be self-executing such status must be obvious from the treaty’s terms.5Medellin II, 128 S.Ct. at 1369 (stating that “[ijf the Executive determines that a treaty should have domestic effect of its own force, that *832determination may be implemented ‘in mak[ing]’ the treaty, by ensuring that it contains language plainly providing for domestic enforceability.”) (emphasis added). As the Court further explained, it is only by committing to an interpretive, textual approach that the courts can be certain they are enforcing a treaty that the President — through negotiating it— and the Senate — through ratifying it — intended to be enforceable as domestic law. Id. at 1361-63. This self-executing certainty must exist if the separation of powers doctrine is to be honored. Id. at 1369.

¶45Given the Court’s guidance in Medellin II, it seems likely that future analyses by the lower courts of the still-open question of whether the Vienna Convention is self-executing will involve closer scrutiny of the treaty’s text than it has been accorded in the past. I would anticipate that the analysis of the self-execution question, an arduous enough task in itself, will be a particularly difficult and murky exercise in cases such as this that entail the distinct but related question of whether the Convention grants individually enforceable rights.6See Medellin I, 544 U.S. at 687, 125 S.Ct. 2088, 161 L.Ed.2d 982 (O’Connor, J., dissenting) (noting that the questions of whether a treaty is self-executing and whether it grants individually enforceable rights are “analytically distinct.”). In light of this circuit’s prior panel decisions and the fact that the parties in this case have not raised self-execution as an issue, the question is beyond the scope of this special concurrence. I therefore need not and do not venture into that analytical thicket. Nonetheless, I submit that to avoid confusion and perhaps faulty analysis on the private rights question, courts should be careful to recognize that when finding a treaty provision “self-executing” they are in effect declaring the provision judicially enforceable and thus discharging any concern for the separation of powers.7

¶46Another central issue in this case involves the presumption in treaty cases— followed by the majority here and many other courts, including Cornejo — that “[i]n-ternational agreements, even thosé directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” Cornejo, 504 F.3d at 859 (citing 2 Restatement (Third) of Foreign Relations Law of the United States (“Restatement”) § 907, Comment a, p. 395 (1986)); ante, at 828. Although I acknowledge the sound political and diplomatic reasons for applying a presumption that treaties generally do not create private rights, I nevertheless have concerns about application of the presumption to Article 36(l)(b).8

¶47*833First, it is commonly accepted that there are exceptions to the presumption with respect to both rights and remedies. Cornejo, 504 F.3d at 859 (citing Restatement § 907, Comment a). Indeed, on many occasions in the past the Supreme Court has recognized that treaties may provide individual rights. See Medellin I, 125 S.Ct. at 2103 (O’Connor, J., dissenting) (recognizing the Supreme Court has “repeatedly enforced treaty-based rights of individual foreigners, allowing them to assert claims arising from various treaties.”) (citing Asakura, 265 U.S. at 340, 44 S.Ct. 515, and Kolovrat v. Oregon, 366 U.S. 187, 191-92 n. 6, 196, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961)). See also United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992); Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947); United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886); Head Money Cases, 112 U.S. at 598, 5 S.Ct. 247. Moreover, this precedent (and thus support for the existence of and exception to the presumption) has long been a part of our jurisprudence, having originated in the venerable Head Money Cases:

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. ... The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that “this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.” A 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 a 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.

¶48Head Money Cases, 112 U.S. at 598, 5 S.Ct. 247 (emphases added); see also Restatement § 907 (“A private person having rights against the United States under an international agreement may assert those rights in courts in the United States of appropriate jurisdiction either by way of claim or defense.”).

¶49Despite the precedent cited above in which the Supreme Court readily found treaty-based individually enforceable rights, many appellate courts have declined to do the same. Instead, those courts have stringently applied the presumption that treaties generally do not create individually enforceable rights and required express language indicating a contrary intent in order to overcome the presumption. See Medellin II, 128 S.Ct. at 1357 n. 3 (commenting that “a number *834of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary.”) (citing United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir.2001); United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir.2001); United States v. Li, 206 F.3d 56, 60-61 (1st Cir.2000) (en banc)-, Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.1992); Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3rd Cir.1979)); see also Mora, 524 F.3d 183, 201. Cornejo and the majority in this case have done the same. Cornejo, 504 F.3d at 859; ante, at 828.

¶50That the presumption against finding individual rights in treaties is generally (and conveniently) applicable makes the frequent reliance on it by courts in Article 36 cases understandable. Less understandable is the requirement imposed by many courts that the treaty contain concrete and specific enforcement language in order to find individual rights. While we know from Medellin II that the sine qua non of treaty interpretation is the treaty’s text, see Medellin II, 128 S.Ct. at 1365 n. 11 (stating that “the terms of a treaty govern its enforcement”), that case also tells us that insofar as self-execution is concerned it is not required “that a treaty provide for self-execution in so many talismanic words.” Medellin II, 128 S.Ct. at 1366. Moreover, as Justice O’Connor has pointed out, in analyzing the issue of individual rights the Court has read treaties with similar lenience. See Medellin I, 125 S.Ct. at 2103 (O’Connor, J., dissenting) (citing cases and stating that the treaties in which individually enforceable rights were found “do not share any special magic words. Their rights-conferring language is arguably no clearer than the Vienna Convention’s is, and they do not specify judicial enforcement.”). I recognize and agree that treaty interpretation demands a highly textual approach. In my view, however, that approach cannot be so hyper-exacting as to require specific terminology or phrasing in order to find that a treaty creates enforceable individual rights when from the plain language of the text it is clear that a right is conveyed. As I see it, the majority in this case — as well as Cor-nejo and Mora — have undertaken an overly demanding search of the text that incorrectly focuses on the absence of specific enforcement language as clear evidence that the signatory states did not intend to create such rights in Article 36.9 It seems to me the proper textual approach instead calls for a plain interpretation of the specific obligation in question.10

¶51*835Article 36(l)(b) imposes three obligations on receiving States: (1) inform the consul of a foreign national’s arrest or detention, if the national so requests; (2) forward communications from a detained national to the consulate without delay; and (3) inform the detained national of his rights under Article 36(l)(b) without delay.11 Vienna Convention on Consular Relations, art. 36(l)(b) (emphasis added). The third of these obligations, paragraph (l)(b)(3), is the primary focus in this case.12

¶52Paragraph (l)(b)(3) obligates the receiving State to “inform the person concerned without delay of his rights under this sub-paragraph.” Vienna Convention on Consular Relations, art. 36(l)(b) (emphasis added). Undoubtedly, as the majority and Cornejo recognize, this obligation serves to facilitate consular functions. But it is equally apparent that this language goes further and secures a separate entitlement for the benefit of the foreign national only, ie., the right to be informed without delay of his rights under the Convention. See Medellin I, 544 U.S. at 687, 125 S.Ct. 2088 (O’Connor, J., dissenting) (stating that “[i]f Article 36(l)(b) imposed only two obligations on signatory countries — to notify the consul and forward correspondence— then Medellin could not invoke the treaty as a source of personal rights by virtue of its self-executing character. But the treaty goes further — imposing an obligation to inform the individual of his rights in the treaty.”). The exclusive focus of the obligation expressed in Article 36(l)(b)(3) is on foreign detainees; this in turn entitles them to be informed of the availability of consular notification, independent of any rights of the consulate.13See Breard, 523 U.S. at 376, 118 S.Ct. 1352 (noting that Article 36 arguably confers enforceable individual rights); see also Medellin I, 544 U.S. at 687, 125 S.Ct. 2088 (O’Connor, J., dissenting) (explaining that “[i]f article 36 conferred no rights on the detained individual, its command to ‘inform’ the detainee of ‘his rights’ might be meaningless.”); see also Pielage v. McConnell, 516 F.3d 1282, 1288 (11th Cir.2008) (noting that “[tjreaties, like statutes, should be construed so that no words are treated as being meaningless, redundant, or mere surplusage.”) (citation omitted). As such, Article 36(l)(b)(3) treats detained foreign nationals as far more than merely intended beneficiaries; rather, its unmistakable focus is on the detained foreign nationals themselves and their right to be informed.14 To require more specific lan*836guage in the face of such clarity, I believe, is unwarranted under ordinary principles of treaty interpretation. See id.Moreover, by its nature, the Article 36(l)(b)(3) obligation is one that can readily be enforced by a court. See id.(stating that “if a statute were to provide, for example, that arresting authorities ‘shall inform a detained person without delay of his right to counsel,’ I question whether more would be required before a defendant could invoke that statute to complain in court if he had not been so informed.”)15

¶53Despite the unambiguous language of Article 36(l)(b)(3), Cornejo finds the text to be less than clear on the subject of individual rights because it “says nothing about the nature of ‘his rights’ or how, if at all, they may be invoked.” See Cornejo, 504 F.3d at 859. The court reasons that “[tjhis language, therefore, must be considered in light of what the Convention, and Article 36, are all about.” Id.; see also ante, at 827-29. The court then turns to the Convention’s context and history and determines that it clearly contains no individually enforceable rights.16

¶54I have no objection to Cornejo’s resort to the Convention’s preamble and Article 36’s purpose statement for context. See Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 33 (noting that the “context” of a treaty includes its preamble). Nonetheless, I am concerned with the weight accorded to these provisions in light of the plainness of the text.17 First, an interpretation of the preamble as providing dear indication that *837Article 36(l)(b) does not give rise to individual rights for detained foreign nationals gives reason for pause. Paragraph four of the preamble provides that the signatory States agree to the terms of the Convention “[rjealizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.” Vienna Convention on Consular Relations, pmbl. Reading this language in isolation leaves little doubt that the Convention was not intended to bestow “privileges and immunities” on individuals. There is more to the preamble on this point, however, and any interpretation that begins and ends with paragraph four is incomplete. The preamble first speaks of privileges and immunities in paragraph three, which states that the signatories agree to the terms of the Convention “[bjelieving that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems.” Id.(emphasis added). The term “privileges and immunities” in paragraph three is modified by the adjective “consular,” thus clearly identifying the “privileges and immunities” being described; the term “such privileges and immunities” in paragraph four refers back to those previously mentioned in paragraph three. Thus “consular” in paragraph three also modifies the “consular privileges and immunities” referenced in paragraph four. Accordingly, reading paragraphs three and four of the preamble in conjunction, as I believe they must be read in order to understand whose privileges and immunities are being referenced, I understand the “privileges and immunities” limitation in paragraph four to pertain strictly to consular officials and staff. This construction makes the most sense considering that the preamble contains no explicit or implicit reference to non-consulate individuals, such as detained foreign nationals, nor does it mention “rights.” Thus, I believe the preamble can be fairly read as simply reflecting the drafters’ intent not to extend certain privileges and immunities to consular staff individually,18 leaving the matter of individual rights for detained foreign nationals unaddressed.

¶55Cornejo also relies on the purpose statement of Article 36(1) as “unmistakable” evidence that the rights in Article 36(l)(b) are solely meant “to facilitate the exercise of consular functions relating to foreign nationals of the sending State.” Cornejo, 504 F.3d at 860. Further, Cornejo reasons that because the obligations in Article 36(l)(b) “enhance the ability of the sending States to assist or protect their nationals,” the right of assistance “belongs entirely to the sending State.” Id.As a general matter, I readily agree that the basic purpose of Article 36 is to facilitate and promote consular functions, which functions include protecting the interests of detained nationals. Id. at 855. As the Supreme Court has explained, however, there is no “right of assistance” under Article 36(l)(b); if a right exists, it is the right to notification. See Sanchez-Llamas, 126 S.Ct. at 2681. Regardless of whether the right is to notification or to assistance, I am troubled by the conclusion that the right belongs strictly to the sending States be*838cause it ignores the obvious import of the plain language in Article 36(l)(b)(3), which I have already discussed.

¶56I also have concern over the requirement seemingly imposed by Cornejo and the majority in this case that an express remedy must exist in the treaty in order to find an individual right.19 To my mind, where a plaintiff has not asserted a private right of action under a particular statute (or, as in this case, a treaty), the analysis of whether a private right exists should be conducted separately from the analysis of whether a remedy for the violation of that right is available. See, generally, Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Had Gandara brought his claim directly under the Vienna Convention, seeking a remedy within its text would make sense. See, e.g., Sanchez-Llamas, 126 S.Ct. at 2678. Here, however, it does not make sense because Gandara seeks to vindicate the violation of his Article 36 rights not via the Convention itself but instead through § 1983 or § 1350, which arguably supply the remedy.20See Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268.

¶57Additionally, requiring the treaty to contain an express remedy in this case seems contrary to Gonzaga; it also seems contrary to the approach taken in Breará and Sanchez-Llamas, in which the Court first assumes the existence of a private right under the Convention and then proceeds to consider whether a remedy is available. See Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam) (stating that Article 36 “arguably confers on an individual the right to consular assistance following arrest” and then proceeding to determine that habeas claim was barred by state procedural default *839rules); see also Sanchez-Llamas, 126 S.Ct. at 2677-78 (assuming, without deciding, that the Convention creates judicially enforceable rights before applying procedural bar rule to claims asserted by habeas petitioner). In any event, in this case in which the plaintiff is not relying on the treaty itself for his right of action, I understand the question of whether there is a legal remedy to be a separate matter altogether from the question of whether the right exists.21 In my view, conflating the two analyses confuses the issues.

¶58As a final matter, notwithstanding all of the foregoing concerns, I should note that I take no issue with the well-settled propositions that the State Department’s position is entitled to “great weight” and that the travaux prépamtoires may be consulted in matters involving treaty interpretation. The question in Gandara’s case, as I see it, is whether either may trump the plain language of Article 36.

¶59In summary, based on the prior panel rule I concur in the result affirming the dismissal of Gandara’s claim brought pursuant to 42 U.S.C. § 1983 (and 28 U.S.C. § 1350). In light of the concerns outlined above, however, I respectfully do not otherwise join the majority.22