INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS

(MEXICO v. UNITED STATES OF AMERICA)

JUDGMENT OF 31 MARCH 2004

2004

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE AVENA ET AUTRES
RESSORTISSANTS MEXICAINS

(MEXIQUE c. ÉTATS-UNIS D’AMERIQUE)

ARRÊT DU 31 MARS 2004

Official citation:

Avena and Other Mexican Nationals
(Mexico v. United States of America),
Judgment, I.C.J. Reports 2004, p. 12

Mode officiel de citation:

Avena et autres ressortissants mexicains
(Mexique c. Etats-Unis d’ Amérique),
arrêt, C.LJ. Recueil 2004, p. 12

Sales number

ISSN 0074-4441 N° de vente:

ISBN 92-1-070989-6

880

31 MARCH 2004
JUDGMENT

AVENA AND OTHER MEXICAN NATIONALS
(MEXICO v. UNITED STATES OF AMERICA)

AVENA ET AUTRES RESSORTISSANTS MEXICAINS
(MEXIQUE c. ÉTATS-UNIS D’AMERIQUE)

31 MARS 2004

ARRÊT

12

INTERNATIONAL COURT OF JUSTICE

2004 YEAR 2004
31 March
General List |
No. 128 31 March 2004.

CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS

{MEXICO v. UNITED STATES OF AMERICA)

Facets af the case
tions af 24 April 1963.

Article 36 af the Vienna Convention an Consular Rela-

+ *

Mexico's objection te the United States objections to jurisdiction and admis-
sibility — United States objections not presented as preliminary objections
—Article 79 of Rules of Court not pertinent in present case.

Jurisdiction af the Court.

First United States objectian to jurisdiction — Contention that Mexico's s-sub-
missions invite the Court to rule an the operation of the United States criminal
justice system — Jurisdiction of Court to determine the nature and extent of
obligations arising under Vienna Convention — Enquiry into the conduct of
criminal proceedings in United States courts a matter belonging to the merits.

Second United States objection to jurisdiction — Contention that the first
submission of Mexico's Memorial is excluded from the Court's jurisdiction —
Mexico defending an interpretation of the Vienna Convention whereby not oniy
the absence of consular notification but also the arrest, detention, trial and can-

of Vienna Convention a matter within the Court's jurisdiction.

Third United States objection to jurisdiction — Contention that Mexico's
submissions on remedies go beyond the Court’s jurisdiction — Jurisdiction of
Court to consider the question of remedies — Question whether or how far the
Court may order the requested remedies a matter belonging to the merits.

13 AVENA AND OTHERS (JUDGMENT)

Fourth United States objection to jurisdiction — Contention that the Court
lacks jurisdiction to determine whether or not consular notification is a human
right — Question of interpretation of Vienna Convention.

Admissibility of Mexico's claims.

First United States objection to admissibility — Contention that Mexico's
submissions on remedies seek 1e have the Court function as a court of criminal
appeal — Question belonging te the merits.

Second United States objection to admissibility — Contention that Mexico’s
claims to exercise its right of diplomatic protection are inadmissible on grounds
that local remedies have not been exhausted — Interdependence in the present
case af rights af the State and of individual rights — Mexico requesting the
Court te rule on the violation of rights which it suffered both directly and
through the violation of individual rights of its nationals — Duty to exhaust
local remedies does not apply to such a request.

Third United States objection to admissibility — Contention that certain
Mexican nationals also have United States nationality — Question belonging to
the merits.

Fourth United States objection to admissibility — Contention that Mexico
had actual knowledge of a breach but failed to bring such breach to the attention
of the United States or did so only after considerable delay — No contention in
the present case af any prejudice caused by such delay — No implied waiver by
Mexico of its rights. .

Fifth United States objection to admissibility — Contention that Mexico
invokes standards that it does not follow in its own practice — Nature of Vienna
Convention precludes such an argument.

* *

Article 36, paragraph | — Mexican nationality of 52 individuals concerned
— United States has net proved its contention that some were also United
States nationals.

Article 36, paragraph 1 (b) — Consular information — Duty to provide con-
sular information as soon as arresting authorities realize that arrested person is
a foreign national, or have grounds for so believing — Provision of consular
information in parallel with reading of “Miranda rights” — Contention that
seven individuals stated at the time of arrest that they were United States
nationals — Interpretation of phrase “without delay” — Violation by United
States of the obligation te provide consular information in SI cases.

Consular notification — Violation by United States of the obligation of con-
sular notification in 49 cases.

Article 36, paragraph 1 (a) and (c) — Interrelated nature of the three suh-
paragraphs of paragraph | — Violation by United States of the obligation to
enable Mexican consular officers to communicate with, have access to and visit
their nationals in 49 cases — Violation by United States of the ebligation to

5

14 AVENA AND OTHERS (JUDGMENT)

enable Mexican consular afficers to arrange for legal representation of their
nationals in 34 cases.

Article 36, paragraph 2 — “Procedural default” rule — Possibility of judicial
remedies still open in 49 cases — Violation by United States of its obligations
under Article 36, paragraph 2, in three cases.

Legal consequences of the breach.

Question of adequate reparation for violations of Article 36 — Review and
reconsideration by United Siates courts of convictions and sentences of the
Mexican nationals — Choice of means left to United States — Review and
reconsideration to be carried aut by taking account of violation of Vienna Con-
vention righis — “Procedural default” rule.

Judicial process suited to the task of review and reconsideration — Clemency
process, as currently practised within the United States criminal justice system,
not sufficient in itself to serve as appropriate means of “review and reconsidera-
tion" — Appropriate clemency procedures can supplement judicial review and
reconsideration.

Mexico requesting cessation af wrongful acts and guarantees and assurances
ef non-repetition — No evidence to establish “regular and continuing” pattern
of breaches by United States of Article 36 ef Vienna Convention — Measures
taken by United States to comply with its obligations under Article 36, para-
graph 1 — Commitment undertaken by United States to ensure implementation
of its obligations under that pravision.

“ *

No a contrario argument can be made in respect of the Courts findings in the
present Judgment concerning Mexican nationals.

Li *

United States obligations declared in Judgment replace those arising fram
Provisional Measures Order of 5 February 2003 — In the three cases where the
United States violated its obligations under Article 36, paragraph 2, it must find
an appropriate remedy having the nature of review and reconsideration accord-
ing to the criteria indicated in the Judgment.

JUDGMENT

Present: President Sal; Vice-President RANIEVA: Judges GUILLAUME, KoROMA,
VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, Kooumans, REZEK,
AL-KHASAWNEH, BUERGENTHAL, ELARABY, OwaDA, TomKa; Judge ad
hoc Serutvepa; Registrar COUvVREUR.

In the case concerning Avena and other Mexican nationals,

15 AVENA AND OTHERS (JUDGMENT)

between

the United Mexican States,
represented by

H.E. Mr. Juan Manuel Gémez-Robledo, Ambassador, former Legal Adviser,
Ministry of Foreign Affairs, Mexico City,

as Agent;

H.E. Mr. Santiago Ofiate, Ambassador of Mexico to the Kingdom of the
Netherlands,

as Agent (until 12 February 2004);

Mr. Arturo A. Dager, Legal Adviser, Ministry of Foreign Affairs, Mexico
City,

Ms Maria dei Refugio Gonzdlez Dominguez, Chief, Legal Co-ordination
Unit, Ministry of Foreign Affairs, Mexico City,

as Agents (from 2 March 2004);

H.E. Ms Sandra Fuentes Berain, Ambassador-Designate of Mexico to the
Kingdom of the Netherlands,

as Agent (from 17 March 2004);

Mr. Pierre-Marie Dupuy, Professor of Public International Law at the
University of Paris II (Panthéon-Assas) and at the European University
Institute, Florence,

Mr. Donald Francis Donovan, Attorney at Law, Debevoise & Plimpton,
New York, -

Ms Sandra L. Babcock, Attorney at Law, Director of the Mexican Capital
Legal Assistance Programme,

Mr. Carlos Bernal, Attorney at Law, Noriega y Escobedo, and Chairman of
the Commission on International Law at the Mexican Bar Association,
Mexico City,

Ms Katherine Birmingham Wilmore, Attorney at Law, Debevoise &
Plimpton, London,

Mr. Dietmar W. Prager, Attorney at Law, Debevoise & Plimpton, New
York,

Ms Socorro Flores Liera, Chief of Staff, Under-Secretariat for Global Affairs
and Human Rights, Ministry of Foreign Affairs, Mexico City,

Mr. Victor Manuel Uribe Aviña, Head of the International Litigation Scc-
tion, Legal Adviser's Office, Ministry of Foreign Affairs, Mexico City,

as Counsellors and Advocates;

Mr. Erasmo A. Lara Cabrera, Head of the International Law Section, Legal
Adviser’s Office, Ministry of Foreign Affairs, Mexico City,

Ms Natalie Klein, Attorney at Law, Debevoise & Plimpton, New York,

Ms Catherine Amirfar, Attorney at Law, Debevoise & Plimpton, New York,

Mr. Thomas Bollyky, Attorney at Law, Debevoise & Plimpton, New York,

Ms Cristina Hoss, Research Fellow at the Max Planck Institute for Com-
parative Public Law and International Law, Heidelberg,

Mr. Mark Warren, International Law Researcher, Ottawa,

as Advisers;
16 AVENA AND OTHERS (JUDGMENT)

Mr. Michel L'Enfant, Debevoise & Plimpton, Paris,
as Assistant,

and

the United States of America,
represented by

The Honourable William H. Taft, IV, Legal Adviser, United States Depart-
ment of State,

as Agent;

Mc. James H. Thessin, Principal Deputy Legal Adviser, United States Depart-
ment of State,

as Co-Agent;

Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs,
United States Department of State,

Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs,
United States Department of State,

Mr. Patrick F. Philbin, Associate Deputy Attorney General, United States
Department of Justice,

Mr. John Byron Sandage, Attorney-Adviser for United Nations Affairs,
United States Department of State,

Mr. Thomas Weigend, Professor of Law and Director of the Institute of For-
eign and International Criminal Law, University of Cologne,

Ms Elisabeth Zoller, Professor of Public Law, University of Paris IL (Pan-
théon-Assas),

as Counsel and Advocates;

Mr. Jacob Katz Cogan, Attorney-Adviser for United Nations Affairs, United
States Department of State,

Ms Sara Criscitelli, Member of the Bar of the State of New York,

Mr. Robert J. Erickson, Principal Deputy Chief, Criminal Appellate Section,
United States Department of Justice, -

Mr. Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal
Counsel, United States Department of Justice,

Mr. Steven Hill, Attorney-Adviser for Economic and Business Affairs, United
States Department of State,

Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The
Hague,

Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The
Hague,

Mr. Peter W. Mason, Attorney-Adviser for Consular Affairs, United States
Department of State,

as Counsel;

Ms Barbara Barrett-Spencer, United States Department of State,

Ms Marianne Hata, United States Department of State,

Ms Cecile Jouglet, United States Embassy, Paris,

Ms Joanne Nelligan, United States Department of State,

Ms Laura Romains, United States Embassy, The Hague,

as Administrative Staff,

17 | AVENA AND OTHERS {IUDGMENT)}

Tue Court,

composed as above,
after deliberation,

delivers the following Judgment:

t. On 9 January 2003 the United Mexican States (hereinafter referred to us
“Mexico”) filed in the Registry of the Court an Application instituting proceed-
ings against the United States of America (hereinafter referred to as the
“United States”) for “violations of the Vienna Convention on Consular Rela-
tions” of 24 April 1963 {hereinafter referred to as the “Vienna Convention”)
allegedly committed by the United States.

In its Application, Mexico based the jurisdiction of the Court on Article 36,
paragraph 1, of the Statute of the Court and on Article I of the Optional Pro-
tocol concerning the Compulsory Settlement of Disputes, which accompanies
the Vienna Convention (hereinafter referred to as the “Optional Protocol”).

2, Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Government of the United States; and, in
accordance with paragraph 3 of that Article, all States entitled to appear before
the Court were notified of the Application.

3. On 9 January 2003, the day on which the Application was filed, the Mexi-
can Government also filed in the Registry of the Court a request for the indica-
tion of provisional measures based on Article 41 of the Statute and Articles 73,
74 and 75 of the Rules of Court.

By an Order of 5 February 2003, the Court indicated the following provi-
sional measures:

“(a) The United States of America shall take all measures necessary to
ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno
Ramos and Mr. Osvaldo Torres Aguilera are not executed pending
final Judgment in these proceedings:

fb} The Government of the United States of America shall inform the
Court of all measures taken in implementation of this Order.”

It further decided that, “until the Court has rendered its final judgment, it shall
remain seised of the matters” which formed the subject of that Order.

In a letter of 2 November 2003, the Agent of the United States advised the
Court that the United States had “informed the relevant state authorities of
Mexico’s application”; that, since the Order of 5 February 2003, the United
States had “obtained from them information about the status of the fifty-four
cases, including the three cases identified in paragraph 59 (I) fa) of that
Order”; and that the United States could “confirm that none of the named
individuals [had] been executed”.

4, In accordance with Article 43 of the Rules of Court, the Registrar sent the
notification referred to in Article 63, paragraph 1, of the Statute to all States
parties to the Vienna Convention or to that Convention and the Optional Pro-
tocol.

5. By an Order of 5 February 2003, the Court, taking account of the views of
the Parties, fixed 6 June 2003 and 6 October 2003, respectively, as the time-
limits for the filing of a Memorial by Mexico and of a Counter-Memorial by
the United States.

9

18 AVENA AND OTHERS (JUDGMENT)

6. By an Order of 22 May 2003, the President of.the Court, on the joint
request of the Agents of the two Parties, extended to 20 June 2003 the time-
limit for the filing of the Memorial; the time-Hmit for the filing of the Counter-
Memorial was extended, by the same Order, to 3 November 2003.

By a letter dated 20 June 2003 and received in the Registry on the same day,
the Agent of Mexico informed the Court that Mexico was unable for technical
reasons to file the original of its Memorial on time and accordingly asked the
Court to decide, under Article 44, paragraph 3, of the Rules of Court, that the
filing of the Memorial after the expiration of the time-Himit fixed therefor would
be considered as valid; that letter was accompanied by two electronic copies of
the Memorial and its annexes. Mexico having filed the original of the Memorial
on 23 June 2003 and the United States having informed the Court, by a letter
of 24 June 2003, that it had no comment to make on the matter, the Court
decided on 25 June 2003 that the filing would be considered as valid.

7. Ina letter of 14 October 2003, the Agent of Mexico expressed his Gov-
ermment’s wish to amend its submissions in order to include therein the cases
of two Mexican nationals, Mr. Victor Miranda Guerrero and Mr. Tonatihu
Aguilar Saucedo, who had been sentenced to death, after the filing of Mexico’s
Memorial, as a result of criminal proceedings in which, according to Mexico,
the United States had failed to comply with its obligations under Article 36 of
the Vienna Convention.

In a letter of 2 November 2003, under cover of which the United States filed
its Counter-Memorial within the time-limit prescribed, the Agent of the United
States informed the Court that his Government objected to the amendment of
Mexico’s submissions, on the grounds that the request was late, that Mexico
had. submitted no evidence concerning the alleged facts and that there was not
enough time for the United States to investigate them.

In a letter received in the Registry on 28 November 2003, Mexico responded
to the United States objection and at the sare time amended its submissions so
as to withdraw its request for relief in the cases of two Mexican nationals men-
tioned in the Memorial, Mr. Enrique Zambrano Garibi and Mr. Pedro Hernan-
dez Alberto, having come to the conclusion that the former had dual.Mexican
and United States nationality and that the latter had been informed of his right
of consular notification prior to interrogation.

On 9 December 2003, the Registrar informed Mexico and the United States
that, in order to ensure the procedural equality of the Parties, the Court had
decided not to authorize the amendment of Mexico’s submissions so as to
include the two additional Mexican nationals mentioned above. He also
informed the Parties that the Court had taken note that the United States had
made no objection to the withdrawal by Mexico of its request for relief in the
cases of Mr. Zambrano and Mr. Hernandez.

8. On 28 November 2003 and 2 December 2003, Mexico filed various docu-
ments which it wished to produce in accordance with Article 56 of the Rules of
Court. By letters dated 2 December 2003 and 5 December 2003, the Agent of
the United States informed the Court that his Government did not object to the
production of these new documents and that it intended to exercise its right to
comment upon these documents and to submit documents in support of its
comments, pursuant to paragraph 3 of that Article. By letters dated 9 Decem-
ber 2003, the Registrar informed the Parties that the Court had taken note that

10

19 AVENA AND OTHERS (JUDGMENT)

the United States had no objection to the production of these documents and
that accordingly counsel would be free to refer to them in the course of the
hearings, On 10 December 2003, the Agent of the United States filed the com-
ments of his Government on the new documents produced by Mexico, together
with a number of documents in support of those comments.

3, Since the Court included upon the Bench no judge of Mexican national-
ity, Mexico availed itself of its right under Article 31, paragraph 2, of the
Statute to choose a judge ad hoc to sit in the case: it chose Mr. Bernardo
Sepulveda.

10. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having con-
sulted the Parties, decided that copies of the pleadings and documents annexed
would be made accessible to the public on the opening of the oral proceedings.

LE. Public sittings were held between 15 and 19 December 2003, at which the
Court heard the ora] arguments and replies of:

For Mexico: ÉLE. Mr. Juan Manuel Gémez-Robledo,
Ms Sandra L. Babcock,
Mr. Victor Manuel Uribe Aviña,
Mr. Donald Francis Donovan,
Ms Katherine Birmingham Wilmore,
H.E. Mr, Santiago Oüate,
Ms Socorro Flores Liera,
Mr. Carlos Bernal,
Mr. Dietmar W. Prager,
Mr. Pierre-Marie Dupuy.

For the United States: The Honourable William H. Taft, IV,

Ms Elisabeth Zoller,

Mr. Patrick F. Philbin,

Mr. John Byron Sandage,

Ms Catherine W. Brown,

Mr. D. Stephen Mathias,

Mr. James H. Thessin,

Mr. Thomas Weigend.

*

12. In its Application, Mexico formulated the decision requested in the fol-
lowing terms:

“The Government of the United Mexican States therefore asks the

Court to adjudge and declare:

(1) that the United States, in arresting, detaining, trying, convicting, and
sentencing the 54 Mexican nationals on death row described in this
Application, violated its international legal obligations to Mexico, in
its own tight and in the exercise of its right of consular protection of
its nationals, as provided by Articles 5 and 36, respectively of the
Vienna Convention;

(2) that Mexico is therefore entitled to restitutio in integrum,
(3) that the United States is under an international legal obligation not to

li

20

AVENA AND OTHERS (JUDGMENT)

apply the doctrine of procedural default, or any other doctrine of
its municipal law, to preclude the exercise of the rights afforded by
Article 36 of the Vienna Convention:

(4) that the United States is under an international legal obligation to

carry out in conformity with the foregoing international legal obliga-
tions any future detention of or criminal proceedings against the 54
Mexican nationals on death row or any other Mexican national in its
territory, whether by a constituent, legislative, executive, judicial or
other power, whether that power holds a superior or a subordinate
position in the organization of the United States, and whether that
power's functions are international or internal in character;

(5) that the right to consular notification under the Vienna Convention is

a human right;

and that, pursuant to the foregoing international legal obligations,

(1) the United States must restore the status quo ante, that is, re-establish

the situation that existed before the detention of, proceedings against,
and convictions and sentences of, Mexico’s nationals in violation of
the United States international legal obligations;

(2) the United States must take the steps necessary and sufficient to

ensure that the provisions of its municipal law enable full effect to be
given to the purposes for which the rights afforded by Article 36 are
intended ;

(3) the United States must take the steps necessary and sufficient to estab-

lish a meaningful remedy at law for violations of the rights afforded to
Mexico and its nationals by Article 36 of the Vienna Convention,

- including by barring the imposition, as a matter of municipal law, of

any procedural penalty for the failure timely to raise a claim or
defence based on the Vienna Convention where competent authorities
of the United States have breached their obligation to advise the
national of his or her rights under the Convention; and

(4) the United States, in light of the pattern and practice of violations set

forth in this Application, must provide Mexico a full guarantee of the
non-repetition of the illegal acts.”

13. In the course of the written procecdings, the following submissions were

presented by the Parties:

On behalf of the Government of Mexico,
in the Memorial:

“For these reasons, . . . the Government of Mexico respectfully requests

the Court to adjudge and. declare |
{1} that the United States, in arresting, detaining, trying, convicting, and

sentencing the fifty-four Mexican nationals on death row described in

21

13

(2)

(3)

(4)

AVENA AND OTHERS (JUDGMENT)

Mexico’s Application and this Memorial, violated its international
legal obligations to Mexico, in its own right and in the exercise
of its right of diplomatic protection of its nationals, as provided by
Article 36 of the Vienna Convention;

that the obligation in Article 36 (1} of the Vienna Convention requires
notification before the competent authorities of the receiving State
interrogate the foreign national or take any other action potentially
detrimental to his or her rights;

that the United States, in applying the doctrine of procedural default,
or any other doctrine of its municipal law, to preclude the exercise and
review of the rights afforded by Article 36 of the Vienna Convention,
violated its international legal obligations to Mexico, in its own right
and in the exercise of its right of diplomatic protection of its nationals,
as provided by Article 36 of the Vienna Convention; and

that the United States is under an international legal obligation to
carry out ia conformity with the foregoing international legal obliga-
tions any future detention of or criminal proceedings against the fifty-
four Mexican nationals on death row and any other Mexican national
in its territory, whether by a constituent, legislative, executive, judicial
or other power, whether that power holds a superior or a subordinate
position in the organization of the United States, and whether that
power’s functions are international or internal in character;

and that, pursuant to the foregoing international legal obligations,

(1)

Mexico is entitled to restifutio in integrum and the United States there-
fore is under an obligation to restore the status quo ante, that is, re-
establish the situation that existed at the time of the detention and
prior to the mterrogation of, proceedings against, and convictions and
sentences of, Mexico’s nationals in violation of the United States’
international legal cbitgations, specifically by, among other things,

fa) vacating the convictions of the fifty-four Mexican nationals;
fb) vacating the sentences of the fifty-four Mexican nationals;

fc) excluding any subsequent proceedings against the fifty-four Mexi-
can nationals any statements and confessions obtained from them
prior to notification of their rights to consular notification and
acecss 5

{4} preventing the application of any procedural penalty for a Mexi-
can national’s failure timely to raise a claim or defence based on
the Vienna Convention where competent authorities of the United
States have breached their obligation to advise the national of his
rights under the Convention;

22

fe)

ar,

AVENA AND OTHERS (JUDGMENT)

preventing the application of any municipal law doctrine or
judicial holding that prevents a court in the United States from
providing a remedy, including the relief to which this Court
holds that Mexico is entitled here, to a Mexican national whose
Article 36 rights have been violated; and

preventing the application of any municipal law doctrine or judi-
cial holding that requires an individualized showing of prejudice
as a prerequisite to relief for the violations of Article 36;

(2) the United States, in light of the regular and continuous violations set
forth in Mexico’s Application and Memorial, is under an obligation to
take all legislative, executive, and judicial steps necessary to:

fa}

{b)

fe}

ensure that the regular and continuing violations of the Article 36
consular notification, access, and assistance rights of Mexico and
its nationals cease;

guarantee that its competent authoritics, of federal, state, and
local jurisdiction, maintain regular and routine compliance with
their Article 36 obligations;

ensure that its judicial authorities cease applying, and guarantee
that in the future they will not apply:

@) any procedural penalty for a Mexican national’s failure
timely to raise a claim or defence based on the Vienna Con-
vention where competent authorities of the United States
have breached their obligation to advise the national of his
or her rights under the Convention;

(ü} any municipal law. doctrine or judicial holding that prevents
a court in the United States from providing a remedy,
including the relief to which this Court holds that Mexico is
entitled here, to a Mexican national whose Article 36 rights
have been vialated; and

(iii) any municipal law doctrine or judicial holding that requires
an individualized showing of prejudice as a prerequisite to
relief for the Vienna Convention violations shown here.”

#

On behalf of the Government of the United States,

in the Counter-Memorial :

“On the basis of the facts and arguments set out above, the Government

Parties:

14

of the United States of America requests that the Court adjudge and
declare that the claims of the United Mexican States are dismissed.”

14. At the oral procecdings, the following submissions were presented by the

23

AVENA AND OTHERS (JUDGMENT)

On behalf of the Government af Mexico,

15

“The Government of Mexico respectfully requests the Court to adjudge
and declare

(1)

(2)

(3)

(4)

(5)

(6)

that the United States of America, in arresting, detaining, trying, con-
victing, and sentencing the 52 Mexican nationals on death row
described in Mexico’s Memorial, violated its international legal
obligations to Mexico, in its own right and in the exercise of its
right to diplomatic protection of its nationals, by failing to inform,
without delay, the 52 Mexican nationals after their arrest of their
right to consular notification and access under Article 36 (1) (4)
of the Vienna Convention on Consular Relations, and by depriving
Mexico of its right to provide consular protection and the 52
nationals’ right to receive such protection as Mexico would pravide
under Article 36 (F} fa) and fc) of the Convention;

that the obligation in Article 36 (1) of the Vienna Convention requires
notification of consular rights and a reasonable opportunity for con-
sular access before the competent authorities of the receiving State
take any action potentially detrimental to the foreign national’s rights;

that the United States of America violated its obligations under
Article 36 (2} of the Vienna Convention by failing to provide mean-
ingful and effective review and reconsideration of convictions and
sentences impaired by a violation of Article 36 (1); by substituting
for such review and reconsideration clemency proceedings; and by
applying the ‘procedural default’ doctrine and other municipal law
doctrines that fail to attach legal significance to an Article 36 (1) vio-
lation on its own terms;

that pursuant to the injuries suffered by Mexico in its own right and
in the exercise of diplomatic protection of its nationals, Mexico is
entitled to full reparation for those injuries in the form of restitutio
in inteprum,

that this restitution consists of the obligation to restore the status quo
anre by annulling or otherwise depriving of full force or effect the con-
victions and sentences of all 52 Mexican nationals;

that this restitution also includes the obligation to take all measures
necessary to ensure that a prior violation of Article 36 shall not affect
the subsequent proceedings;

that to the extent that any of the 52 convictions or sentences are not
annulled, the United States shall provide, by means of its own choos-
ing, meaningful and effective review and reconsideration of the convic-
tions and sentences of the 52 nationals, and that this obligation cannot
be satisfied by means of clemency proceedings or if any municipal law
rule or doctrine inconsistent with paragraph (3) above is applied; and

24 AVENA AND OTHERS (JUDGMENT)

(8) that the United States of America shall ccase its violations of
Article 36 of the Vienna Convention with regard to Mexico and its
52 nationals and shall provide appropriate guarantees and assurances
that it shall take measures sufficient to achieve increased compliance
with Article 36 (1} and to ensure compliance with Article 36 (2).”

On behalf of the Government of the United States,

“On the basis of the facts and arguments made by the United States in
its Counter-Memorial and in these proceedings, the Government of the
United States of America requests that the Court, taking into account that
the United States has conformed its conduct to this Court’s Judgment in
the LaGrand Case (Germany v. Unitéd States of America}, not only with
respect to German nationals but, consistent with the Declaration of the
President of the Court in that case, to all detained foreign nationals,
adjudge and declare that the claims of the United Mexican States are dis-
missed.”

15. The present proceedings have been brought by Mexico against the
United States on the basis of the Vienna Convention, and of the Optional
Protocal providing for the jurisdiction of the Court over “disputes arising
out of the interpretation or application” of the Convention. Mexico and
the United States are, and were at all relevant times, parties to the Vienna
Convention and to the Optional Protocol. Mexico claims that the United
States has committed breaches of the Vienna Convention in relation to
the treatment of a number of Mexican nationals who have been tried,
convicted and sentenced to death in criminal proceedings in the United
States, The original claim related to 54 such persons, but as a result of
subsequent adjustments to its claim made by Mexico (see paragraph 7
above), only 52 individual cases are involved. These criminal proceedings
have been taking place in nine different States of the United States,
namely California (28 cases), Texas (15 cases), Illinois (three cases),
Arizona (one case), Arkansas (one case), Nevada (one case), Ohio
(one case), Oklahoma (one case) and Oregon (one case), between 1979
and the present.

16. For convenience, the names of the 52 individuals, and the numbers
by which their cases will be referred to, are set out below:

Carlos Avena Guillen

Héctor Juan Ayala

Vicente Benavides Figueroa
Constantino Carrera Montenegro
Jorge Contreras Lopez

we wh

16

25

17

AVENA AND OTHERS (JUDGMENT)

Daniel Covarrubias Sanchez .
Marcos Esquivel Barrera
Rubén Gomez Pérez

Jaime Armando Hoyos
Arturo Juarez Suarez.

. Juan Manuel Lopez

José Lupercio Casares

. Luis Alberto Maciel Hernandez

. Abelino Manriquez Jaquez

. Omar Fuentes Martinez (a.k.a. Luis Aviles de fa Cruz)
. Miguel Angel Martinez Sanchez

. Martin Mendoza Garcia

. Sergio Ochoa Tamayo

Enrique Parra Duefias
Juan de Dios Ramirez Villa

. Magdaleno Salazar

. Ramon Salcido Bojérquez

. Juan Ramon Sanchez Ramirez
. Ignacio Tafoya Arriola

. Alfredo Valdez Reyes

. Eduardo David Vargas

Tomas Verano Cruz

. [Case withdrawn]

Samuel Zamudio Jiménez

. Juan Carlos Alvarez Banda
. César Roberto Fierro Reyna

Héctor Garcia Torres

. Ignacio Gomez

Ramiro Hernandez Llanas

. Ramiro Rubi Ibarra

Humberto Leal Garcia

. Virgilio Maldonado
. José Ernesto Medellin Rojas

Roberto Moreno Ramos

. Daniel Angel Plata Estrada
. Rubén Ramirez Cardenas

. Félix Rocha Diaz

. Oswaldo Regalado Soriano
. Edgar Arias Tamayo

. Juan Caballero Hernandez
. Mario Flores Urban

. Gabriel Solache Romero

. Martin Raul Fong Soto

. Rafael Camargo Ojeda

. [Case withdrawn]

. Carlos René Pérez Gutiérrez
. José Trinidad Loza

26 AVENA AND OTHERS (JUDGMENT)

53. Osvaldo Netzahualcévotl Torres Aguilera
54. Horacio Alberto Reyes Camarena

17. The provisions of the Vienna Convention of which Mexico alleges
violations are contained in Article 36. Paragraphs | and 2 of this Article
are set out respectively in paragraphs 50 and 108 below. Article 36
relates, according to its title, to “Communication and contact with
nationals of the sending State”. Paragraph 1 (b) of that Article provides:
that if a national of that State “is arrested or committed to prison or to
custody pending trial or is detained in any other manner”, and he so
requests, the local consular post of the sending State is to be notified. The
Article goes on to provide that the “competent authorities of the receiving
State” shall “inform the person concerned without delay of his rights” in
this respect. Mexico claims that in the present case these provisions were
not complied with by the United States authorities in respect of the 52
Mexican nationals the subject of its claims. As a result, the United States
has according to Mexico committed breaches of paragraph ! (b}; more-
over, Mexico claims, for reasons to be explained below (see paragraphs 98
et seg.}, that the United States is also in breach of paragraph | fa) and
fe} and of paragraph 2 of Article 36, in view of the relationship of
these provisions with paragraph | fd).

18. As regards the terminology employed to designate the obligations
incumbent upon the receiving State under Article 36, paragraph 1 {b},
the Court notes that the Parties have used the terms “inform” and
“notify” in differing senses. For the sake of clarity, the Court, when
speaking in its own name in the present Judgment, will use the word
“mform” when referring to an individual being made aware of his rights
under that subparagraph and the word “notify” when referring to the
giving of notice to the consular post.

19. The underlying facts alleged by Mexico may be briefly described as
follows: some are conceded by the United States, and some disputed.
Mexico states that all the individuals the subject of its claims were Mext-
can nationals at the time of their arrest. It further contends that the
United States authorities that arrested and interrogated these individuals
had sufficient information at their disposal to be aware of the foreign
nationality of those individuals. According to Mexico’s account, in 50 of
the specified cases, Mexican nationals were never informed by the com-
petent United States authorities of their rights under Article 36, para-
graph 1 (5), of the Vienna Convention and, in the two remaming cases,
such information was not provided “without delay”, as required by that
provision, Mexico has indicated that in 29 of the 52 cases its consular
authorities learned of the detention of the Mexican nationals only after
death sentences had been handed down. In the 23 remaining cases,
Mexico contends that it fearned of the cases through means other than
notification to the consular post by the competent United States authori-
ties under Article 36, paragraph 1 (6). It explains that in five cases this

18

i

27 AYENA AND OTHERS (JUDGMENT)

was too late to affect the trials, that in 15 cases the defendants had
already made incriminating statements, and that it became aware of the
other three cases only after considerable delay.

20. Of the 52 cases referred to in Mexico’s final submissions, 49 are
currently at different stages of the proceedings before United States judi-
cial authorities at state or federal level, and in three cases, those of
Mr. Fierro (case No. 31}, Mr. Moreno (case No. 39) and Mr. Torres {case
No. 53), judicial remedies within the United States have already been
exhausted. The Court has been informed of the variety of types of pro-
ceedings and forms of relief available in the criminal justice systems of
the United States, which can differ from state to state. In very general
terms, and according to the description offered by both Parties in their
pleadings, it appears that the 52 cases may be classified into three catego-
ries: 24 cases which are currently in direct appeal; 25 cases in which
means of direct appeal have been exhausted, but post-conviction relief
(habeas corpus), either at state or at federal level, is still available; and
three cases in which no judicial remedies remain. The Court also notes
that, in at least 33 cases, the alleged breach of the Vienna Convention
was raised by the defendant either during pre-trial, at trial, on appeal or
in habeas corpus proceedings, and that some of these claims were dis-
missed on procedural or substantive grounds and others are still pending.
To date, in none of the 52 cases have the defendants had recourse to the
clemency process.

21. On 9 January 2003, the day on which Mexico filed its Application
and a request for the indication of provisional measures, all 52 individ-
uals the subject of the claims were on death row. However, two days later
the Governor of the State of Illinois, exercising his power of clemency
teview, commuted the sentences of all convicted individuals awaiting
execution in that State, including those of three individuals named in
Mexico’s Application (Mr. Caballero {case No. 45), Mr. Flores (case
No. 46) and Mr. Solache (case No. 47)). By a letter dated 20 January
2003, Mexico informed the Court that, further to that decision, it with-
drew its request for the indication of provisional measures on behalf of
these three individuals, but that its Application remained unchanged. In
the Order of 5 February 2003, mentioned in paragraph 3 above, on the
request by Mexico for the indication of provisional measures, the Court
constdered that it was apparent from the information before it that the
three Mexican nationals named in the Application who had exhausted all
judicial remedies in the United States (see paragraph 20 above} were at
risk of execution in the following months, or even weeks. Consequently,
it ordered by way of provisional measure that the United States take all
measures necessary to ensure that these individuals would not be executed

19

28 AVENA ANI} OTHERS (JUDGMENT)

pending final judgment in these proceedings. The Court notes that, at the
date of the present Judgment, these three individuals have not been
executed, but further notes with great concern that, by an Order dated
1 March 2004, the Oklahoma Court of Criminal Appeals has set an
execution date of 18 May 2004 for Mr. Torres.

x * x

THE MEXICAN ORJECTION TO THE UNITED STATES OBJECTIONS TO
JURISDICTION AND ADMISSIBILITY

22, As noted above, the present dispute has been brought before the
Court by Mexico on the basis of the Vienna Convention and the Cptional
Protocol to that Convention. Article | of the Optional Protocol provides:

“Disputes arising out of the interpretation or application of the
[Vienna] Convention shall lie within the compulsory jurisdiction of
the International Court of Justice and may accordingly be brought
before the Court by a written application made by any party to the
dispute being a Party to the present Protocol.”

23. The United States has presented a number of objections to the
jurisdiction of the Court, as well as a number of objections to the
admissibility of the claims advanced by Mexico. It is however the conten-
tion of Mexico that all the objections raised by the United States are
inadmissible as having been raised after the expiration of the time-limit
laid down by the Rules of Court. Mexico draws attention to the text of
Article 79, paragraph 1, of the Rules of Court as amended in 2000, which
provides that

“Any objection by the respondent to the jurisdiction of the Court
or to the admissibility of the application, or other objection the deci-
sion upon which is requested before any further proceedings on the
merits, shall be made in writing as soon as possible, and not later
than three months after the delivery of the Memorial.”

The previous text of this paragraph required objections to be made
“within the time-limit fixed for delivery of the Counter-Memorial”. In the
present case the Memorial of Mexico was filed on 23 June 2003: the
objections of the United States to jurisdiction and admissibility were
presented in its Counter-Memorial, filed on 3 November 2003, more
than four months later.

24. The United States has observed that, during the proceedings on
the request made by Mexico for the indication of provisional measures in
this case, it spectfically reserved its right to make jurisdictional arguments
at the appropriate stage, and that subsequently the Parties agreed. that
there should be a single round of pleadings. The Court would however
emphasize that parties to cases before it cannot, by purporting to “reserve
their rights” to take some procedural action, exempt themselves from the
application to such action of the provisions of the Statute and Rules of

20

29 AVENA AND OTHERS (JUDGMENT)

Court (cf. Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide {Bosnia and Herzegovina v. Yugoslavia),
Order of 13 September 1993, LC. Reports 1993, p. 338, para. 28).

The Court notes, however, that Article 79 of the Rules applies only to
preliminary objections, as is indicated. by the title of the subsection of the
Rules which it constitutes. As the Court observed in the Lockerbie cases,
“if it is to be covered by Article 79, an objection must . . . possess a ‘pre-
liminary’ character”, and “Paragraph 1 of Article 79 of the Rules of
Court characterizes as ‘preliminary’ an objection ‘the decision upon
which is requested before any further proceedings’” (Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom) (Libyan Arab Jamahiriya v. United States af America), Pre-
liminary Objections, I. C.J. Reports 1998, p. 26, para. 47; p. 131, para. 46);
and the effect of the timely presentation of such an objection is that the
proceedings on the merits are suspended (paragraph 5 of Article 79}. An
objection that is not presented as a preliminary objection in accordance
with paragraph 1 of Article 79 does not thereby become inadmissible.
There are of course circumstances in which the party failing to put for-
ward an objection to jurisdiction might be held to have acquiesced in
jurisdiction (Appeal Relating to the Jurisdiction of the ICAO Council
Judgement, LC. Reports 1972, p. 52, para. 13). However, apart from
such circumstances, a party failing to avail itself of the Article 79
procedure may forfeit the right to bring about a suspension of the pro-
ceedings on the merits, but can still argue the objection along with the
merits. That is indeed what the United States has done in this case; and,
for reasons to be indicated below, many of its objections are of such a
nature that they would in any event probably have had to be heard along
with the merits. The Court concludes that it should not exclude from
consideration the objections of the United States to jurisdiction and
admissibility by reason of the fact that they were not presented within
three months from the date of filing of the Memorial.

25. The United States has submitted four objections to the jurisdiction
of the Court, and five to the admissibility of the clatms of Mexico. As
noted above, these have not been submitted as preliminary objections
under Article 79 of the Rules of Court; and they are not of such a nature
that the Court would be required to examine and dispose of all of them in
limine, before dealing with any aspect of the merits of the case. Some are
expressed to be only addressed to certain claims; some are addressed to
questions of the remedies to be indicated if the Court finds that breaches
of the Vienna Convention have been committed; and some are of such a
nature that they would have to be dealt with along with the merits. The
Court will however now examine each of them in turn.

21

30 AVENA AND OTHERS (JUDGMENT)
UNITED STATES OBIECTIONS TO JURISDICTION

26. The United States contends that the Court lacks jurisdiction to
decide many of Mexico’s claims, inasmuch as Mexico’s submissions in
the Memorial asked the Court to decide questions which do not arise out
of the interpretation or application of the Vienna Convention, and which
the United States has never agreed to submit to the Court.

*

27. By its first jurisdictional objection, the United States suggested
that the Memorial is fundamentally addressed to the treatment of Mexi-
can nationals in the federal and state criminal justice systems of the
United States, and the operation of the United States criminal justice sys-
tem as a whole. It suggested that Mexico’s invitation to the Court to
make what the United States regards as “far-reaching and unsustainable
findings concerning the United States criminal justice systems” would be
an abuse of the Court’s jurisdiction. At the hearings, the United States
contended that Mexico is asking the Court to interpret and apply the
treaty as if it were intended principally to govern the operation of a
Siate’s criminal justice system as it affects foreign nationals.

28. The Court would recall that its jurisdiction in the present case has
been invoked under the Vienna Convention and Optional Protocol to
determine the nature and extent of the obligations undertaken by the
United States towards Mexico by becoming party to that Convention. If
and so far as the Court may find that the obligations accepted by the
parties to the Vienna Convention included commitments as to the con-
duct of their municipal courts in relation to the nationals of other parties,
then in order to ascertain whether there have been breaches of the Con-
vention, the Court must be able to examine the actions of those courts in
the light of international law. The Court is unable to uphold the conten-
tion of the United States that, as a matter of jurisdiction, it is debarred
from enquiring into the conduct of criminal proceedings in United States
courts. How far it may de so in the present case is a matter for the merits.
The first objection of the United States to jurisdiction cannot therefore be
upheld.

*

29. The second jurisdictional objection presented by the United States
was addressed to the first of the submissions presented by Mexico in its
Memorial (see paragraph 13 above). The United States pointed out that
Article 36 of the Vienna Convention “creates no obligations constraining
the rights of the United States to arrest a foreign national”; and that

22

31 AVENA AND OTHERS (JUDGMENT)

similarly the “detaining, trying, convicting and sentencing” of Mexican
nationals could not constitute breaches of Article 36, which merely lays
down obligations of notification, The United States deduced from this
that the matters raised in Mexico’s first submission are outside the juris-
diction of the Court under the Vienna Convention and the Optional Pro-
tocol, and it maintains this objection in response to the revised. submis-
sion, presented by Mexico at the hearings, whereby it asks the Court to
adjudge and declare:

“That the United States of America, in arresting, detamtng, try-
ing, convicting, and sentencing the 52 Mexican nationals on death
row described in Mexico’s Memorial, violated its international legal
obligations to Mexico, in its own right and in the exercise of its right
to diplomatic protection of its nationals, by failing to inform, with-
out delay, the 52 Mexican nationals after their arrest of their right to
consular notification and access under Article 36 (1) {b} of the
Vienna Convention on Consular Relations, and by depriving Mexico
of its right to provide consular protection and the 52 nationals’
right to receive such protection as Mexico would provide under
Article 36 {1} (a) and fe) of the Convention.”

30. This issue is a question of interpretation of the obligations imposed
by the Vienna Convention. It is true that the only obligation of the
receiving State toward a foreign national that is specifically enunciated by
Article 36, paragraph | fb), of the Vienna Convention is to inform such
foreign national of his rights, when he is “arrested or committed to
prison or to custody pending trial or is detained in any other manner”;
the text does not restrain the receiving State from “arresting, detaining,
trying, convicting, and sentencing” the foreign national, or limit its
power to do so. However, as regards the detention, trial, conviction and:
sentence of its nationals, Mexico argues that depriving a foreign national
facing criminal proceedings of consular notification and assistance renders
those proceedings fundamentally unfair. Mexico explains in this respect
that:

“Consular notification constitutes a basic component of due pro-
cess by ensuring both the procedural equality of a foreign national
in the criminal process and the enforcement of other fundamental
due process guarantees to which that national is entitled”,

23

32 AVENA AND OTHERS (JUDGMENT)

and that “It is therefore an essential requirement for fair criminal pro-
ceedings against foreign nationals.” In Mexico’s contention, “consular
notification has been widely recognized as a fundamental due process
right, and indeed, a human right”. On this basis it argues that the rights
of the detained Mexican nationals have been violated by the authorities
of the United States, and that those nationals have been “subjected to
criminal proceedings without the fairness and dignity to which each per-
son is entitled”. Consequently, in the contention of Mexico, “the integrity
of these proceedings has been hopelessly undermined, their outcomes
rendered irrevocably unjust”. For Mexico to contend, on this basis, that
not merely the failure to notify, but the arrest, detention, trial and con-
viction of its nationals were unlawful is to argue in favour of a particular
interpretation of the Vienna Convention. Such an interpretation may or
may not be confirmed on the merits, but is not excluded from the juris-
diction conferred on the Court by the Optional Protocol to the Vienna
Convention. The second objection of the United States to jurisdiction
cannot therefore be upheld.

*

31, The third objection by the United States to the jurisdiction of the
Court refers to the first of the submissions in the Mexican Memorial con-
cerning remedies. By that submission, which was confirmed in substance
in the final submissions, Mexico claimed that

“Mexico is entitled to restitutio in integrum, and the United States
therefore is under an obligation to restore the status que ante, that
is, re-establish the situation that existed at the time of the detention
and prior to the interrogation of, proceedings against, and convic-
tions and sentences of, Mexico’s nationals in violation of the United
States’ international legal obligations . . .”

On that basis, Mexico went on in its first submission to invite the Court
to declare that the United States was bound to vacate the convictions and
sentences of the Mexican nationals concerned, to exclude from any sub-
sequent proceedings any statements and confessions obtained from them,
to prevent the application of any procedural penalty for failure to raise a
timely defence on the basis of the Convention, and to prevent the appli-
cation of any municipal law rule preventing courts in the United States
from providing a remedy for the violation of Article 36 rights.

32. The United States objects that so to require specific acts by the
United States in its municipal criminal justice systems would intrude
deeply into the independence of its courts; and that for the Court to

24

33 AVENA AND OTHERS (JUDGMENT)

declare that the United States is under a specific obligation to vacate con-
victions and sentences would be beyond its jurisdiction. The Court, the
United States claims, has no jurisdiction to review appropriateness of
sentences in criminal cases, and even less to determine guilt or innocence,
matters which only a court of criminal appeal could go into.

33. For its part, Mexico points out that the United States accepts that
the Court has jurisdiction to interpret the Vienna Convention and to
determme the appropriate form of reparation under international law. In
Mexico’s view, these two considerations are sufficient to defeat the third
objection to jurisdiction of the United States.

34. For the same reason as in respect of the second jurisdictional
objection, the Court is unable to uphold the contention of the United
States that, even if the Court were to find that breaches of the Vienna
Convention have been committed by the United States of the kind
alleged by Mexico, it would still be without jurisdiction to order restitutio
in integrum as requested by Mexico. The Court would recall in this
regard, as it did in the LaGrand case, that, where jurisdiction exists over
a dispute on a particular matter, no separate basis for jurisdiction is
required by the Court in order to consider the remedies a party has
requested for the breach of the obligation (C.J. Reports 2001, p. 485,
para. 48). Whether or how far the Court may order the remedy requested
by Mexico are matters to be determined as part of the merits of the dis-
pute. The third objection of the United States to jurisdiction cannot
therefore be upheld.

+

35. The fourth and last jurisdictional objection of the United States is
that “the Court lacks jurisdiction to determine whether or not consular
notification 1s a ‘human right’, or to declare fundamental requirements of
substantive or procedural due process”. As noted above, it is on the basis
of Mexico’s contention that the right to consular notification has been
widely recognized as a fundamental due process right, and indeed a
human right, that it argues that the rights of the detained Mexican
nationals have been violated by the authorities of the United States, and
that they have been “subjected to criminal proceedings without the fair-
ness and dignity to which each person is entitled”. The Court observes
that Mexico has presented this argument as being a matter of inter-
pretation of Article 36, paragraph 1 (6), and therefore belonging to
the merits. The Court considers that this is indeed a question of inter-
pretation of the Vienna Convention, for which it has jurisdiction; the
fourth objection of the United States to jurisdiction cannot therefore be
upheld. ‘

25

34 AYENA AND OTHERS {JUDGMENT}
-AJNITED STATES OBJECTIONS TO ADMISSIBILITY

36. In its Counter-Memorial, the United States has advanced a number
of arguments presented as objections to the admissibility of Mexico’s
claims. It argues that

“Before proceeding, the Court should weigh whether characteris-
tics of the case before it today, or special circumstances related to
particuiar claims, render either the entire case, or particular claims,
inappropriate for further consideration and decision by the Court.”

*

37. The first objection under this head is that “Mexico’s submissions
should be found inadmissible because they seek to have this Court func-
tion as a court of criminal.appeal”; there is, in the view of the United
States, “no other apt characterization of Mexico’s two submissions in
respect of remedies”, The Court notes that this contention is addressed
solely to the question of remedies. The United States does not contend on
this ground that the Court should decline jurisdiction to enquire into the
question of breaches of the Vienna Convention at all, but simply that, if
such breaches are shown, the Court should do no more than decide that
the United States must provide “review and reconsideration” along the
lines indicated in the Judgment in the LaGrand case (C.J. Reports 2001,
pp. 513-514, para. 125). The Court notes that this is a matter of merits.
The first objection of the United States to admissibility cannot therefore
be upheld.

*

38, The Court now turns to the objection of the United States
based on the rule of exhaustion of local remedies. The United States
contends that the Court “should find inadmissible Mexico’s claim to
exercise its right of diplomatic protection on behalf of any Mexican
national who has failed to meet the customary legal requirement of
exhaustion of municipal remedies”. It asserts that in a number of the
cases the subject of Mexico’s claims, the detained Mexican national,
even with the benefit of the provision of Mexican consular assistance,
failed to raise the alleged non-compliance with Article 36, paragraph 1,
of the Vienna Convention at the trial. Furthermore, it contends that
all of the claims relating to cases referred to in the Mexican Memorial
are inadmissible because local remedies remain available in every case.
It has drawn attention to the fact that litigation is pending before
courts in the United States in a large number of the cases the subject
of Mexico’s claims and that, in those cases where judicial remedies
have been exhausted, the defendants have not had recourse to the
clemency process available to them; from this it concludes that none

26

35 AVENA AND OTHERS (JUDGMENT)

of the cases “is in an appropriate posture for review by an international
tribunal”.

39. Mexico responds that the rule of exhaustion of local remedies can-
not preclude the admissibility of its claims. It first states that a majority
of the Mexican nationals referred to in paragraph 16 above have sought
judicial remedies in the United States based on the Vienna Convention
and that their claims have been barred, notably on the basis of the pro-
cedural default doctrine. In this regard, it quotes the Court’s statement in
the LaGrand case that

“the United States may not... rely before this Court on this fact in
order to preclude the admissibility of Germany’s [claim] . . ., as it
was the United States itself which had failed to carry out its obliga-
tion under the Convention to inform the LaGrand brothers” (1 C.J.
Reports 2001, p. 488, para. 60).

Further, in respect of the other Mexican nationals, Mexico asserts that

“the courts of the United States have never granted a judicial
remedy to any foreign national for a violation of Article 36. The
United States courts hold either that Article 36 does not create an
individual right, or that a foreign national who has been denied his
Article 36 rights but given his constitutional and statutory rights,
cannot establish prejudice and therefore cannot get relief.”

It concludes that the available judicial remedies are thus ineffective. As
for clemency procedures, Mexico contends that they cannot count for
purposes of the rule of exhaustion of local remedies, because they are not
a judicial remedy.

40. In its final submissions Mexico asks the Court to adjudge and
declare that the United States, in failing to comply with Article 36, para-
graph 1, of the Vienna Convention, has “violated its international legal
obligations to Mexico, in its own right and in the exercise of its right of
diplomatic protection of its nationals”.

The Court would first observe that the individual rights of Mexican
nationals under paragraph 1 (6) of Article 36 of the Vienna Convention
are rights which are to be asserted, at any rate in the first place, within
the domestic legal system of the United States. Only when that process is
completed and local remedies are exhausted would Mexico be entitled to
espouse the individual claims of its nationals through the procedure of
diplomatic protection.

In the present case Mexico does not, however, claim to be acting solely
on that basis. It also asserts its own claims, basing them on the injury
which it contends that it has itself suffered, directly and through its

27

36 AVENA AND OTHERS (JUDGMENT)

nationals, as a result of the violation by the United States of the obliga-
tions incumbent upon it under Article 36, paragraph | fa), (6) and fe).

The Court would recall that, in the LaGrand case, it recognized that

“Article 36, paragraph 1 [of the Vienna Convention], creates indi-
vidual rights [for the national concerned], which ... may be invoked
in this Court by the national State of the detained person” (CZ
Reports 2001, p. 494, para. 77).

It would further observe that violations of the rights of the individual
under Article 36 may entail a violation of the rights of the sending State,
and that violations of the rights of the latter may entail a violation of the
rights of the individual. In these special circumstances of interdependence
of the rights of the State and of individual rights, Mexico may, in sub-
mitting a claim in its own name, request the Court to rule on the viola-
tion of rights which it claims to have suffered both directly and through
the violation of individual rights conferred on Mexican nationals under
Article 36, paragraph 1 (b}. The duty to exhaust local remedies does not
apply to such a request. Further, for reasons just explained, the Court
does not find it necessary to deal with Mexico’s claims of violation under
a distinct heading of diplomatic protection. Without needing to pro-
nounce at this juncture on the issues raised by the procedural default
rule, as explained by Mexico in paragraph 39 above, the Court accord-
ingly finds that the second objection by the United States to admissibility
cannot be upheld.

*

41. The Court now turns to the question of the alleged dual national-
ity of certain of the Mexican nationals the subject of Mexico’s claims.
This question is raised by the United States by way of an objection to the
admissibility of those claims: the United States contends that in its
Memorial Mexico had failed to establish that it may exercise diplomatic
protection based on breaches of Mexico’s rights under the Vienna Con-
vention with respect to those of its nationals who are also nationals of the
United States. The United States regards it as an accepted principle that,
when a person arrested or detained in the receiving State is a national of
that State, then even if he is also a national of another State party to the
Vienna Convention, Article 36 has no application, and the authorities
of the receiving State are not required to proceed as laid down in that
Article; and Mexico has indicated that, for the purposes of the present
case it does not contest that dual nationals have no right to be advised
of their rights under Article 36.

42. It has however to be recalled that Mexico, in addition to seeking to
exercise diplomatic protection of its nationals, is making a claim in its

28

37 AVENA AND OTHERS (JUDGMENT)

own right on the basis of the alleged breaches by the United States of
Article 36 of the Vienna Convention. Seen from this standpoint, the
question of dual nationality is not one of admissibility, but of merits. A
claim may be made by Mexico of breach of Article 36 of the Vienna Con-
vention in relation to any of its nationals, and the United States ts there-
upon free to show that, because the person concerned was also a United
States national, Article 36 had no application to that person, so that no
breach of treaty obligations could have occurred. Furthermore, as regards
the claim to exercise diplomatic protection, the question whether Mexico
is entitled to protect a person having dual Mexican and United States
nationality is subordinated to the question whether, in relation to such a
person, the United States was under any obligation in terms of Article 36
of the Vienna Convention. It is thus in the course of its examination of
the merits that the Court will have to consider whether the individuals
concerned, or some of them, were dual nationals in law. Without preju-
dice to the outcome of such examination, the third objection of the
United States to admissibility cannot therefore be upheld,

*

43. The Court now turns to the fourth objection advanced by the
United States to the admissibility of Mexico’s claims: the contention that

“The Court should not permit Mexico to pursue a claim against
the United States with respect to any individual case where Mexico
had actual knowledge of a breach of the [Vienna Convention] but
failed to bring such breach to the attention of the United States or
did so only after considerable delay.”

In the Counter-Memorial, the United States advances two considerations
in support of this contention: that if the cases had been mentioned
prompily, corrective action might have been possible; and that by
inaction Mexico created an impression that it considered that the
United States was meeting its obligations under the Convention, as
Mexico understood them. At the hearings, the United States suggested
that Mexico had in effect waived its right to claim in respect of the alleged
breaches of the Convention, and to seek reparation.

44, As the Court observed in the case of Certain Phosphate Lands in
Nauru {Nauru v. Australia), “delay on the part of a claimant State may
render an application inadmissible”, but “international law does not lay
down any specific time-limit in that regard” (L CJ. Reports 1992, pp. 253-
254, para. 32}. In that case the Court recognized that delay might preju-
dice the respondent State “with regard to both the establishment of the
facts and the determination of the content of the applicable law” (ibid,
p. 255, para. 36), but it has not been suggested that there is any such risk
of prejudice in the present case. So far as inadmissibility might be based
on an implied waiver of rights, the Court considers that only a much

29

38 AVENA AND OTHERS (JUDGMENT)

more prolonged and consistent inaction on the part of Mexico than any
that the United States has alleged might be interpreted as implying such
a waiver. Furthermore, Mexico indicated a number of ways in which it
brought to the attention of the United States the breaches which it per-
ceived of the Vienna Convention. The fourth objection of the United
States to admissibility cannot therefore be upheld.

*

45. The Court has now to examine the objection of the United States
that the claim of Mexico is inadmissible in that Mexico should not be
allowed to invoke against the United States standards that Mexico does
not follow in its own practice, The United States contends that, in
accordance with basic principles of administration of justice and the
equality of States, both litigants are to be held accountable to the same
rules of international law. The objection in this regard was presented in
terms of the interpretation of Article 36 of the Vienna Convention, in the
sense that, according to the United States, a treaty may not be inter-
preted so as to impose a significantly greater burden on any one party
than the other (Diversion of Water from the Meuse, Judgment, 1937,
P.CIT. Series A/B, No. 70, p. 20).

46. The Court would recall that the United States had already raised
an objection of a similar nature before it in the LaGrand case; there, the
Court held that it need not decide “whether this argument of the United
States, if true, would result in the inadmissibility of Germany’s submis-
sions”, since the United States had failed to prove that Germany’s own
practice did not conform to the standards it was demanding from the
United States C.J. Reports 2001, p. 489, para. 63).

47. The Court would recall that it is in any event essential to have in
mind the nature of the Vienna Convention. It lays down certain stand-
ards to be observed by all States parties, with a view to the “unimpeded :
conduct of consular relations”, which, as the Court observed in 1979, is
important in present-day international law “in promoting the develop-
ment of friendly relations among nations, and ensuring protection and
assistance for aliens resident in the territories of other States” (United
States Diplomatic and Consular Staff in Tehran (United States of
America v. fran), Provisional Measures, Order of 15 December 1979,
LCL Reports 1979, pp. 19-20, para. 40). Even if it were shown, there-
fore, that Mexico’s practice as regards the application of Article 36 was
not beyond reproach, this would not constitute a ground of objection to
the admissibility of Mexico’s claim. The fifth objection of the United
States to admissibility cannot therefore be upheld.

30

39 AVENA AND OTHERS (JUDGMENT)

48. Having established that it has jurisdiction to entertain Mexico’s
claims and that they are admissible, the Court will now turn to the merits
of those claims.

ARTICLE 36, PARAGRAPH |

49. In its final submissions Mexico asks the Court to adjudge and
declare that,

“the United States of America, in arresting, detaining, trying, con-
victing, and sentencing the 52 Mexican nationals on death row
described in Mexico’s Memorial, violated its international legal obli-
gations to Mexico, in its own right and in the exercise of its right to
diplomatic protection of its nationals, by failing to inform, without
delay, the 52 Mexican nationals after their arrest of their right to
consular notification and access under Article 36 (1) (@} of the
Vienna Convention on Consular Relations, and by depriving Mexico
of its right to provide consular protection and the 52 nationals’
right to receive such protection as Mexico would provide under
Article 36 (1) (a) and fe) of the Convention”.

50. The Court has already in its Judgment in the LaGrand case
described Article 36, paragraph 1, as “an interrelated régime designed to
facilitate the implementation of the system of consular protection” (1 CJ.
Reports 2601, p. 492, para. 74). It is thus convenient to set out the
entirety of that paragraph.

“With a view toward facilitating the exercise of consular functions
relating to nationals of the sending State:

fa} consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the
sending State shall have the same freedom with respect to com-
munication with and access to consular officers of the sending
State;

(b} if he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the send-
ing 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 be forwarded by the said authorities

3]

40 AVENA AND OTHERS (JUDGMENT)

without delay, The said authorities shall inform the person con-
cerned without delay of his rights under this subparagraph;

fc} consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to con-
verse and correspond with him and to arrange for his legal rep-
resentation. They shall also have the right to visit any national
of the sending State who is in prison, custody or detention in
their district in pursuance of a judgment. Nevertheless, consular
officers shall refrain from taking action on behalf of a national
who is in prison, custody or detention if he expressly opposes
such action.”

51. The United States as the receiving State does not deny its duty
to perform these obligations. However, it claims that the obligations
apply only to individuals shown to be of Mexican nationality alone, and
not to those of dual Mexican/United States nationality. The United
States further contends inter alia that it has not committed any breach
of Article 36, paragraph 1 fb}, upon the proper interpretation of
“without delay” as used in that subparagraph.

§2. Thus two major issues under Article 36, paragraph 1 (6), that are
in dispute between the Parties are, first, the question of the nationality of
the individuals concerned; and second, the question of the meaning to be
given to the expression “without delay”. The Court will examine each of
these in turn.

53. The Parties have advanced their contentions as to nationality in
three different legal contexts. The United States has begun by making an
objection to admissibility, which the Court has already dealt with (see
paragraphs 4] and 42 above). The United States has further contended
that a substantial number of the 52 persons listed in paragraph 16
above were United States nationals and that it thus had no obligation
to these individuals under Article 36, paragraph 1 (6). The Court will
address this aspect of the matter in the following paragraphs. Finally, the
Parties disagree as to whether the requirement under Article 36, para-
graph 1 (4), for the information to be given “without delay” becomes
operative upon arrest or upon ascertainment of nationality. The Court
will address this issue later (see paragraph 63 below).

54. The Parties disagree as to what each of them must show as regards
nationality in connection with the applicability of the terms of Article 36,
paragraph 1, and as to how the principles of evidence have been met on
the facts of the cases.

32

41 AVENA AND OTHERS (JUDGMENT)

55. Both Parties recognize the well-settled principle in international
law that a litigant seeking to establish the existence of a fact bears the
burden of proving it (cf. Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction
and Admissibility, Judgment, C.J. Reports 1984, p. 437, para. 101).
Mexico acknowledges that it has the burden of proof to show that the
52 persons listed in paragraph 16 above were Mexican nationals to whom
the provisions of Article 36, paragraph 1 (5), in principle apply. It claims
it has met this burden by providing to the Court the birth certificates of
these nationals, and declarations from 42 of them that they have not
acquired United States nationality. Mexico further contends that the
burden of proof lies on the United States should it wish to contend that
particular arrested persons of Mexican nationality were, at the relevant
time, also United States nationals.

46. The United States accepts that in such cases it has the burden of
proof to demonstrate United States nationality, but contends that none-
theless the “burden of evidence” as to this remains with Mexico. This dis-
tinction is explained by the United States as arising out of the fact that
persons of Mexican nationality may also have acquired United States
citizenship by operation of law, depending on their parents’ dates and
places of birth, places of residency, marital status at time of their birth
and so forth. In the view of the United States “virtually all such informa-
tion is in the hands of Mexico through the now 52 individuals it repre-
sents”. The United States contends that it was the responsibility of
Mexico to produce such information, which responsibility it has not dis-
charged.

57. The Court finds that it is for Mexico to show that the 52 persons
listed in paragraph 16 above held Mexican nationality at the time of their
arrest. The Court notes that to this end Mexico has produced birth
certificates and declarations of nationality, whose contents have not
been challenged by the United States,

The Court observes further that the United States has, however, ques-
tioned whether some of these individuals were not also United States
nationals. Thus, the United States has informed the Court that, “in the
case of defendant Ayala (case No. 2) we are close to certain that Ayala is
a United States citizen”, and that this could be confirmed with absolute
certainty if Mexico produced facts about this matter. Similarly Mr.
Avena (case No. 1) was said to be “likely” to be a United States citizen,
and there was “some possibility” that some 16 other defendants were
United States citizens. As to six others, the United States said it “cannot
rule out the possibility” of United States nationality. The Court takes the
view that it was for the United States to demonstrate that this was so and
to furnish the Court with all information on the matter in its possession.
In so far as relevant data on that matter are said by the United States to
lie within the knowledge of Mexico, it was for the United States to have

33

42 AVENA AND OTHERS (JUDGMENT)

sought that information from the Mexican authorities. The Court cannot
accept that, because such information may have been in part in the hands
of Mexico, it was for Mexico to produce such information. It was for the
United States to seek such information, with sufficient specificity, and to
demonstrate both that this was done and that the Mexican authorities
declined or failed to respond to such specific requests. At no stage,
however, has the United States shown the Court that it made specific
enquiries of those authorities about particular cases and that responses
were not forthcoming. The Court accordingly concludes that the United
States has not met its burden of proof in its attempt to show that persons
of Mexican nationality were also United States nationals.

The Court therefore finds that, as regards the 52 persons listed in
paragraph 16 above, the United States had obligations under Article 36,
paragraph 1 fb}.

58. Mexico asks the Court to find that

“the obligation in Article 36, paragraph t, of the Vienna Convention
requires notification of consular rights and a reasonable opportunity
for consular access before the competent authorities of the receiv-
ing State take any action potentially detrimental to the foreign
national’s rights”.

59. Mexico contends that, in each of the 52 cases before the Court, the
United States failed to provide the arrested persons with information as
to their rights under Article 36, paragraph 1 (6), “without delay”. It
alleges that in one case, Mr. Esquivel (case No. 7), the arrested person
was informed, but only some 18 months after the arrest, while in another,
that of Mr. Juarez (case No. 10), information was given to the arrested
person of his rights some 40 hours after arrest. Mexico contends that this
still constituted a violation, because “without delay” is to be understood
as meaning “immediately”, and in any event before any interrogation
occurs. Mexico further draws the Court’s attention to the fact that in
this case a United States court found that there had been a violation of
Article 36, paragraph | (b), and claims that the United States cannot
disavow such a determination by its own courts. In an Annex to its
Memorial, Mexico mentions that, in a third case (Mr. Ayala, case No. 2},
the accused was informed of his rights upon his arrival on death row,
some four years after arrest. Mexico contends that in the remaining.
cases the Mexicans concerned. were in fact never so informed by the
United States authorities.

60. The United States disputes both the facts as presented by Mexico
and the legal analysis of Article 36, paragraph 1 (b), of the Vienna Con-
vention offered by Mexico. The United States claims that Mr. Solache
(case No. 47) was informed of his rights under the Vienna Convention

34.

43 AVENA AND OTHERS (JUDGMENT)

some seven months after his arrest. The United States further claims that
many of the persons concerned were of United States nationality and that
at least seven of these individuals “appear to have affirmatively claimed to
be United States citizens at the time of their arrest”. These cases were said
to be those of Avena (case No. 1), Ayala (case No. 2}, Benavides (case
No. 3), Ochoa (case No. 18), Salcido (case No. 22), Tafoya (case No. 24),
and Alvarez (case No. 30). In the view of the United States no duty of
consular information arose in these cases. Further, in the contention of
the United States, in the cases of Mr. Ayala (case No. 2) and Mr. Salcido
{case No. 22} there was no reason to believe that the arrested persons were
Mexican nationals at any stage; the information in the case of Mr. Juarez
(case No, 10} was given “without delay”.

61. The Court thus now turns to the interpretation of Article 36, para-
graph 1 {b}, having found in paragraph 57 above that it is applicable to
the 52 persons listed in paragraph 16. It begins by noting that Article 36,
paragraph 1 fb}, contains three separate but interrelated elements: the
right of the individual concerned to be informed without delay of his
rights under Article 36, paragraph 1 (4); the right of the consular post to
be notified without delay of the individual’s detention, if he so requests;
and the obligation of the receiving State to forward without delay any
communication addressed to the consular post by the detained person.

’ 62. The third element of Article 36, paragraph 1 (6), has not been
raised on the facts before the Court. The Court thus begins with the right
of an arrested or detained individual to information.

63. The Court finds that the duty upon the detaining authorities to
give the Article 36, paragraph 1 (b), information to the individual arises
once it is realized that the person is a foreign national, or once there are
grounds to think that the person is probably a foreign national. Precisely
when this may occur will vary with circumstances, The United States
Department of State booklet, Consular Notification and Access — Instruc-
tions for Federal, State and Local Law Enforcement and Other Officials
Regarding Foreign Nationals in the United States and the Rights of Con-
sular Officials to Assist Them, issued to federal, state and local authori-
ties in order to promote compliance with Article 36 of the Vienna Con-
vention points out in such cases that: “most, but not all, persons born
outside the United States are not [citizens]. Unfamiliarity with English
may also indicate foreign nationality.” The Court notes that when an
arrested person himself claims to be of United States nationality, the
realization by the authorities that he is not in fact a United States
national, or grounds for that realization, is likely to come somewhat later
in time.

35
44 AVENA AND OTHERS (JUDGMENT)

64. The United States has told the Court that millions of aliens reside,
either legally or illegally, on its territory, and moreover that its laws con-
cerning citizenship are generous. The United States has also pointed out
that it is a multicultural society, with citizenship being held by persons of
diverse appearance, speaking many languages. The Court appreciates
that in the United States the language that a person speaks, or his
appearance, does not necessarily indicate that he is a foreign national.
Nevertheless, and particularly in view of the large numbers of foreign
nationals living in the United States, these very circumstances suggest
that it would be desirable for enquiry routinely to be made of the indi-
vidual as to his nationality upon his detention, so that the obligations of
the Vienna Convention may be complied with. The United States has
informed the Court that some of its law enforcement authorities do
routinely ask persons taken into detention whether they are United States
citizens. Indeed, were each individual to be told at that time that, should
he be a foreign national, he is entitled to ask for his consular post to be
contacted, compliance with this requirement under Article 36, para-
graph 1 (6), would be greatly enhanced. The provision of such informa-
tion could parallel the reading of those rights of which any person taken
into custody in connection with a criminal offence must be informed
prior to interrogation by virtue of what in the United States is known as
the “Miranda rule”; these rights include, inter alia, the right to remain
silent, the right to have an attorney present during questioning, and the
right to have an attorney appointed at government expense if the person
cannot afford one. The Court notes that, according to the United States,
such a practice in respect of the Vienna Convention rights is already
being followed in some local jurisdictions.

65. Bearing in mind the complexities explained by the United States,
the Court now begins by examining the application of Article 36,
paragraph | (6), of the Vienna Convention to the 52 cases. In 45 of
these cases, the Court has no evidence that the arrested persons claimed
United States nationality, or were reasonably thought to be United States
nationals, with specific enquiries being made in timely fashion to verify
such dual nationality, The Court has explained in paragraph 57 above
what enquiries 1t would have expected to have been made, within.a short
time period, and what information should have been provided to the
Court.

66. Seven persons, however, are asserted by the United States to
have stated at the time of arrest that they were United States citizens.
Only in the case of Mr. Salcido (case No. 22) has the Court been pro-
vided by the United States with evidence of such a statement. This has
been acknowledged by Mexico. Further, there has been no evidence
before the Court to suggest that there were in this case at the same time
also indications of Mexican nationality, which should have caused
rapid enquiry by the arresting authorities and the providing of consular
information “without delay”. Mexico has accordingly not shown that in

36

45 AVENA AND OTHERS (JUDGMENT)

the case of Mr. Salcido the United States violated its obligations under
Article 36, paragraph 1 (4).

67. In the case of Mr. Ayala (case No. 2), while he was identified in a
court record in 1989 (three years after his arrest} as a United States citi-
zen, there is no evidence to show this Court that the accused did indeed
claim upon his arrest to be a United States citizen. The Court has not
been informed of any enquiries made by the United States to confirm
these assertions of United States nationality.

68. In the five other cases listed by the United States as cases where the
individuals “appear to have affirmatively claimed to be United States citi-
zens at the time of their arrest”, no evidence has been presented that such
a statement was made at the time of arrest.

69. Mr. Avena (case No. 1) is listed in his arrest report as having been
born in California. His prison records describe him as of Mexican nation-
ality. The United States has not shown the Court that it was engaged in
enquiries to confirm United States nationality.

70. Mr. Benavides (case No. 3) was carrying an Immigration and
Naturalization Service immigration card at the time of arrest in 1991.
The Court has not been made aware of any reason why the arresting
authorities should nonetheless have believed at the time of arrest that he
was a United States national. The evidence that his defence counsel in
June 1993 informed the court that Mr. Benavides had become a United
States citizen is irrelevant to what was understood as to his nationality at
time of arrest.

71. So far as Mr. Ochoa is concerned (case No. 18), the Court observes
that his arrest report in 1990 refers to him as having been born in
Mexico, an assertion that is repeated in a second police report. Some two
years later details in his court record refer to him as a United States citi-
zen born in Mexico. The Court is not provided with any further details.
The United States has not shown this Court that it was aware of, or was
engaged in active enquiry as to, alleged United States nationality at the
time of his arrest.

72. Mr. Tafoya (case No. 24) was listed on the police booking sheet as
having been born in Mexico. No further information is provided by the
United States as to why this was done and what, if any, further enquiries
were being made concerning the defendant’s nationality.

73, Finally, the last of the seven persons referred to by the United
States in this group, Mr. Alvarez (case No. 30), was arrested in Texas on
20 June 1998. Texas records identified him as a United States citizen,
Within three days of his arrest, however, the Texas authorities were

37
46 AVENA AND OTHERS (JUDGMENT)

informed that the Immigration and Naturalization Service was holding
investigations to determine whether, because of a previous conviction,
Mr. Alvarez was subject to deportation as a foreign national. The Court
has not been presented with evidence that rapid resolution was sought as
to the question of Mr. Alvarez’s nationality.

74. The Court concludes that Mexico has failed to prove the violation
by the United States of its obligations under Article 36, paragraph 1 fb},
in the case of Mr. Salcido (case No. 22), and his case will not be further
commented upon. On the other hand, us regards the other individuals
who are alleged to have claimed United States nationality on arrest,
whose cases have been considered in paragraphs 67 to 73 above, the
argument of the United States cannot be upheld.

75. The question nonetheless remains as to whether, in each of the 45
cases referred to in paragraph 65 and of the six cases mentioned in para-
graphs 67 to 73, the United States did provide the required information
to the arrested. persons “without delay”. It is to that question that the
Court now turns.

76, The Court has been provided with declarations from a number of
the Mexican nationals concerned that attest to their never being informed
of their rights under Article 36, paragraph | (6). The Court at the outset
notes that, in 47 such cases, the United States nowhere challenges
this fact of information not being given. Nevertheless, in the case of
Mr. Hernandez (case No. 34), the United States observes that

“Although the [arresting] officer did not ask Hernandez Llanas
whether he wanted them to inform the Mexican Consulate of his
arrest, it was certainly not unreasonable for him to assume that an
escaped. convict would not want the Consulate of the country from
which he escaped notified of his arrest.”

The Court notes that the clear duty to provide consular information
under Article 36, paragraph 1 (4), does not invite assumptions as to
what the arrested person might prefer, as a ground for not informing
him. It rather gives the arrested person, once informed, the right to say he
nonetheless does not wish his consular post to be notified. It necessarily
follows that in each of these 47 cases, the duty to inform “without delay”
has been violated.

77. In four cases, namely Ayala (case No. 2), Esquivel (case No. 7),
Juarez (case No. 10) and Solache (case No. 47), some doubts remain as to
whether the information that was given was provided without delay. For
these, some examination of the term is thus necessary.

78. This is a matter on which the Parties have very different views.

38

47 AVENA AND OTHERS (JUDGMENT)

According to Mexico, the timing of the notice to the detained person “is
critical to the exercise of the rights provided by Article 36” and the
phrase “without delay” in paragraph 1 (6) requires “unqualified imme-
diacy”. Mexico further contends that, in view of the object and purpose
of Article 36, which is to enable “meaningful consular assistance” and the
safeguarding of the vulnerability of foreign nationals in custody,

“consular notification .. . must occur immediately upon detention
and prior to any interrogation of the foreign detainee, so that the
consul may offer useful advice about the foreign legal system and
provide assistance in obtaining counsel before the foreign national
makes any ill-informed decisions or the State takes any action poten-
tially prejudicial to his rights”.

79. Thus, in Mexico’s view, it would follow that in any case in which a
foreign national was interrogated before being informed. of his rights
under Article 36, there would ipso facto be a breach of that Article, how-
ever rapidly after the interrogation the information was given to the for-
eign national. Mexico accordingly includes the case of Mr. Juarez among
those where it claims violation of Article 36, paragraph 1 (4), as he was
interrogated before being informed of his consular rights, some 40 hours
after arrest.

80. Mexico has also invoked the travaux préparatoires of the Vienna
Convention in support of its interpretation of the requirement that the
arrested person be informed “without delay” of the right to ask that the
consular post be notified. In particular, Mexico recalled that the phrase
proposed to the Conference by the International Law Commission, “with-
out undue delay”, was replaced by the United Kingdom proposal to
delete the word “undue”. The United Kingdom representative had
explained that this would avoid the implication that “some delay was
permissible” and no delegate had expressed dissent with the USSR and
Japanese statements that the result of the amendment would be to
require information “immediately”.

81. The United States disputed this interpretation of the phrase “with-
out delay”. In its view it did not mean “immediately, and before interro-
gation” and such an understanding was supported neither by the termi-
nology, nor by the object and purpose of the Vienna Convention, nor by
its travaux préparatoires. In the booklet referred to in paragraph 63
above, the State Department explains that “without delay” means “there
should be no deliberate delay” and that the required action should be
taken “as soon as reasonably possible under the circumstances”. It was
normally to be expected that “notification to consular officers” would
have been made “within 24 to 72 hours of the arrest or detention”. The
United States further contended that such an interpretation of the words
“without delay” would be reasonable in itself and also allow a consistent

39
48 AVENA AND OTHERS (JUDGMENT)

interpretation of the phrase as it occurs in each of three different occa-
sions in Article 36, paragraph 1 (6). As for the travaux préparatoires,
they showed only that undue or deliberate delay had been rejected as
unacceptable.

82. According to the United States, the purpose of Article 36 was to
facilitate the exercise of consular functions by a consular officer:

“The significance of giving consular information to a national is
thus limited ... [It is a procedural device that allows the foreign
national to trigger the related process of notification . . . [It] cannot
possibly be fundamental to the criminal justice process.”

83. The Court now addresses the question of the proper interpretation
of the expression “without delay” in the light of arguments put to it by
the Parties. The Court begins by noting that the precise meaning of
“without delay”, as it is to be understood in Article 36, paragraph | (6),
is not defined in the Convention. This phrase therefore requires mterpre-
tation according to the customary rules of treaty interpretation reflected
in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

84. Article 1 of the Vienna Convention on Consular Relations, which
defines certain of the terms used in the Convention, offers no definition
of the phrase “without delay”. Moreover, in the different language ver-
sions of the Convention various terms are employed to render the phrases
“without delay” in Article 36 and “immediately” in Article 14. The Court
observes that dictionary definitions, in the various languages of the
Vienna Convention, offer diverse meanings of the term “without delay”
(and also of “immediately”). It is therefore necessary to look elsewhere
for an understanding of this term.

85. As for the object and purpose of the Convention, the Court
observes that Article 36 provides for consular officers to be free to com-
municate with nationals of the sending State, to have access to them, to
visit and speak with them and to arrange for their legal representation. It
is not envisaged, either in Article 36, paragraph 1, or elsewhere in the
Convention, that consular functions entail a consular officer himself or
herself acting as the legal representative or more directly engaging in
the criminal justice process. Indeed, this is confirmed by the wording of
Article 36, paragraph 2, of the Convention. Thus, neither the terms
of the Convention as normally understood, nor its object and purpose,
suggest that “without delay” is to be understood as “immediately upon
arrest and. before interrogation”.

86. The Court further notes that, notwithstanding the uncertainties in
the travaux préparatoires, they too do not support such an interpreta-

40

49 AVENA AND OTHERS (JUDGMENT)

tion. During the diplomatic conference, the conference’s expert, former
Special Rapporteur of the International Law Commission, explained to
the delegates that the words “without undue delay” had been introduced
by the Commission, after long discussion in both the plenary and. draft-
ing committee, to allow for special circumstances which might permit
information as to consular notification not to be given at once. Germany,
the only one of two States to present an amendment, proposed adding
“but at latest within one month”, There was an extended discussion by
many different delegates as to what such outer time-limit would be
acceptable. During that debate no delegate proposed “immediately”. The
shortest specific period suggested was by the United Kingdom, namely
“promptly” and no later than “48 hours” afterwards. Eventually, in the
absence of agreement on a precise time period, the United Kingdom’s
other proposal to delete the word “undue” was accepted as the position
around which delegates could converge. It is also of interest that there is
no suggestion in the travaux that the phrase “without delay” might have
different meanings in each of the three sets of circumstances in which it is
used in Article 36, paragraph 1 (4).

87. The Court thus finds that “without delay” is not necessarily to be
interpreted as “immediately” upon arrest. It further observes that during
the Conference debates on this term, no delegate made any connection
with the issue of interrogation. The Court considers that the provision in
Article 36, paragraph | fb), that the receiving State authorities “shall
inform the person concerned without delay of his rights” cannot be inter-
preted to signify that the provision of such information must necessarily
precede any interrogation, so that the commencement of interrogation
before the information is given would be a breach of Article 36.

88. Although, by application of the usual rules of interpretation, “with-
out delay” as regards the duty to inform an individual under Article 36,
paragraph 1 (4), is not to be understood as necessarily meaning “imme-
diately upon arrest”, there is nonetheless a duty upon the arresting
authorities to give that information to an arrested person as soon as it is
réalized that the person is a foreign national, or once there are grounds to
think that the person is probably a foreign national.

89, With one exception, no information as to entitlement to consular
notification was given in any of the cases cited in paragraph 77 within
any of the various time periods suggested by the delegates to the Confer-
ence on the Vienna Convention, or by the United States itself (see para-
graphs 81 and 86 above). Indeed, the information was given either not at
all or at periods very significantly removed from the time of arrest. In the
case of Mr. Juarez (case No. 10), the defendant was informed of his

41

50 AVENA AND OTHERS (JUDGMENT)

consular rights 40 hours after his arrest. The Court notes, however, that
Mr. Juarez’s arrest report stated that he had been born in Mexico; more-
over, there had been indications of his Mexican nationality from the time
of his initial interrogation by agents of the Federal Bureau of Investi-
gation {FBI} following his arrest. It follows that Mr. Judrez’s Mexican
nationality was apparent from the outset of his detention by the United
States authorities. In these circumstances, in accordance with its interpre-
tation of the expression “without delay” (see paragraph 88 above), the
Court concludes that the United States violated the obligation incumbent
upon it under Article 36, paragraph 1 (5), to inform Mr, Juarez without
delay of his consular rights. The Court notes that the same finding was
reached by a California Superior Court, albeit on different grounds.

90. The Court accordingly concludes that, with respect to each of the
individuals listed in paragraph 16, with the exception of Mr. Salcido (case
No. 22; see paragraph 74 above), the United States has violated its obli-
gation under Article 36, paragraph | (4), of the Vienna Convention to
provide information to the arrested. person.

91. As noted above, Article 36, paragraph | (6), contains three
elements. Thus far, the Court has been dealing with the right of an
arrested person to be informed that he may ask for his consular post to
be notified. The Court now turns to another aspect of Article 36,
paragraph 1 fb}. The Court finds the United States is correct in observ-
ing that the fact that a Mexican consular post was not notified under
Article 36, paragraph 1 (4), does not of necessity show that the arrested
person was not informed of his rights under that provision. He may
have been informed and declined to have his consular post notified. The
piving of the information is relevant, however, for satisfying the element
in Article 36, paragraph 1 (6), on which the other two elements therein
depend.

92. In only two cases has the United States claimed that the arrested
person was informed of his consular rights but asked for the consular
post not to be notified. These are Mr. Juarez (case No. 10) and Mr. So-
lache (case No. 47),

93. The Court is satisfied that when Mr. Juarez (case No. 10) was
informed of his consular rights 40 hours after his arrest (see para-
graph 89) he chose not to have his consular post notified. As regards
Mr. Solache (case No. 47), however, it is not sufficiently clear to the Court,
"on the evidence before it, that he requested that his consular post should
not be notified. Indeed, the Court has not been provided with any reasons
as to why, if a request of non-notification was made, the consular post
was then notified some three months later.

94, In a further three cases, the United States alleges that the con-
sular post was formally notified of the detention of one of its Mexican

42

51 AVENA AND OTHERS (JUDGMENT)

nationals without prior information to the individual as to his consular
rights. These are Mr. Covarrubias (case No. 6), Mr. Hernandez (case
No. 34) and Mr. Reyes (case No. 54). The United States further con-
tends that the Mexican authorities were contacted regarding the case of
Mr. Loza (case No. 52).

95. The Court notes that, in the case of Mr, Covarrubias (case No. 6),
the consular authorities leamed from third parties of his arrest shortly
after it occurred. Some 16 months later, a court-appointed interpreter
requested that the consulate intervene in the case prior to trial. It would
appear doubtful whether an interpreter can be considered a competent
authority for triggering the interrelated provisions of Article 36, para-
graph 1 fb), of the Vienna Convention. In the case of Mr. Reyes (case
No. 54), the United States has simply told the Court that an Oregon
Department of Justice attorney had advised United States authorities
that both the District Attorney and the arresting detective advised the
Mexican consular authorities of his arrest. No information is given as to
when this occurred, in relation to the date of his arrest. Mr. Reyes did
receive assistance before his trial. In these two cases, the Court considers
that, even on the hypothesis that the conduct of the United States had no
serious consequences for the individuals concerned, it did nonetheless
constitute a violation of the obligations incumbent upon the United
States under Article 36, paragraph 1 (4).

96. In the case of Mr. Loza (case No. 52), a United States Congress-
man from Ohio contacted the Mexican Embassy on behalf of Ohio
prosecutors, some four months after the accused’s arrest, “to enquire
about the procedures for obtaining a certified copy of Loza’s birth cer-
tificate”. The Court has not been provided with a copy of the Congress-
man’s letter and is therefore unable to ascertain whether it explained that
Mr. Loza had been arrested. The response from the Embassy (which
is also not included in the documentation provided to the Court) was
passed by the Congressman to the prosecuting attorney, who then asked
the Civil Registry of Guadalajara for a copy of the birth certificate.
This request made no specific mention of Mr. Loza’s arrest. Mexico con-
tends that its consulate was never formally notified of Mr. Loza’s arrest,
of which it only became aware after he had been convicted and
sentenced to death. Mexico includes the case of Mr. Loza among those
in which the United States was in breach of its obligation of consular
notification. Taking account of all these elements, and in particular
of the fact that the Embassy was contacted four months after the
arrest, and that the consular post became aware of the defendant’s
detention only after he had been convicted and sentenced, the Court
concludes that in the case of Mr. Loza the United States violated the
obligation of consular notification without delay incumbent upon it
under Article 36, paragraph 1 (8).

43

52 AVENA AND OTHERS (JUDGMENT)

97. Mr. Hernandez (case No. 34) was arrested in Texas on Wednesday
15 October 1997. The United States authorities had no reason to believe
he might have American citizenship. The consular post was notified the
following Monday, that is five days (corresponding to only three working
days) thereafter. The Court finds that, in the circumstances, the United
States did notify the consular post without delay, in accordance with its
obligation under Article 36, paragraph 1 fé}.

98. In the first of its final submissions, Mexico also asks the Court
to find that the violations it ascribes to the United States in respect of
Article 36, paragraph 1 fb}, have also deprived “Mexico of its right to
provide consular protection and the 52 nationals’ right to receive such
protection as Mexico would provide under Article 36 (1} fa) and fe)
of the Convention”,

99. The relationship between the three subparagraphs of Article 36,
paragraph 1, has been described by the Court in its Judgment in
the LaGrand case (LCJ Reports 2001, p. 492, para. 74} as “an
interrelated régime”. The legal conclusions to be drawn from that
interrelationship necessarily depend upon the facts of each case. In the
LaGrand case, the Court found that the failure for 16 years 10 inform
the brothers of their right to have their consul notified effectively pre-
vented. the exercise of other rights that Germany might have chosen to
exercise under subparagraphs fa} and fc}.

100. It is necessary to revisit the interrelationship of the three subpara-
graphs of Article 36, paragraph 1, in the light of the particular facts and
circumstances of the present case.

101. The Court would first recall that, in the case of Mr. Juarez (case
No. 10) (see paragraph 93 above}, when the defendant was informed of
his rights, he declined to have his consular post notified. Thus in this case
there was no violation of either subparagraph fa) or subparagraph fe)
of Article 36, paragraph L.

102, In the remaining cases, because of the failure of the United States
to act in conformity with Article 36, paragraph 1 (6), Mexico was in
effect precluded (in some cases totally, and in some cases for prolonged
periods of time) from exercising its right under paragraph 1 (a) to com-
municate with its nationals and have access to them. As the Court has
already had occasion to explain, it is immaterial whether Mexico would
have offered consular assistance, “or whether a different verdict would
have been rendered. It is sufficient that the Convention conferred these
rights” (2. CT. Reports 2001, p. 492, para. 74), which might have been
acted upon. |

103. The same is true, pari passu, of certain rights identified in sub-
paragraph fc}: “consular officers shall have the right to visit a national
of the sending State who is in prison, custody or detention, and to con-
verse and correspond with him.. .”.

44

53 AVENA AND OTHERS (JUDGMENT)

104. On the other hand, and on the particular facts of this case, no
such generalized answer can be given as regards a further entitlement
mentioned in subparagraph (c), namely, the right of consular officers “to
arrange for [the] legal representation” of the foreign national. Mexico has
laid much emphasis in this litigation upon the importance of consular
officers being able to arrange for such representation before and during
trial, and especially at sentencing, in cases in which a severe penalty may
be imposed. Mexico has further indicated the importance of any financial
or other assistance that consular officers may provide to defence counsel,
inter alia for investigation of the defendant’s family background and
mental condition, when such information is relevant to the case, The
Court observes that the exercise of the rights of the sending State under
Article 36, paragraph 1 fc), depends upon notification by the authorities
of the receiving State. It may be, however, that information drawn to the
attention of the sending State by other means may still enable its consular
officers to assist in arranging legal representation for its national. In
the following cases, the Mexican consular authorities learned of their
national’s detention in time to provide such assistance, either through
notification by United States authorities (albeit belatedly in terms of
Article 36, paragraph 1 (4)) or through other channels: Benavides
{case No. 3}; Covarrubias (case No. 6); Esquivel {case No. 7}; Hoyos
(case No. 9); Mendoza (case No. 17); Ramirez (case No. 20); Sanchez
(case No, 23); Verano (case No. 27); Zamudio (case No. 29); Gomez
{case No. 33); Hernandez (case No. 34); Ramirez (case No. 41); Rocha
(case No. 42); Solache (case No. 47); Camargo (case No. 49) and Reyes
(case No. 54}.

103. In relation to Mr. Manriquez (case No. 14), the Court lacks pre-
cise information as to when his consular post was nottfied. It is merely
given to understand that it was two years prior to conviction, and that
Mr. Manriquez himself had never been informed of his consular rights.
There is also divergence between the Parties in regard to the case of
Mr. Fuentes (case No. 15), where Mexico claims it became aware of his
detention during trial and the United States says this occurred during
jury selection, prior to the actual commencement of the trial. In the
case of Mr, Arias (case No. 44), the Mexican authorities became aware
of his detention less than one week before the commencement of the
trial. In those three cases, the Court concludes that the United States
violated its obligations under Article 36, paragraph 1 fc}.

106. On this aspect of the case, the Court thus concludes:
(1) that the United States committed breaches of the obligation incum-
bent upon it under Article 36, paragraph 1 (4), of the Vienna Con-

vention to inform detained Mexican nationals of their rights under

45

54

(2)

(3)

(4)

46

AVENA AND OTHERS (JUDGMENT)

that paragraph, in the case of the following 51 individuals: Avena
(case No. 1), Ayala (case No. 2), Benavides (case No. 3}, Carrera
{case No. 4), Contreras (case No. 5}, Covarrubias (case No. 6),
Esquivel (case No. 7}, Gémez (case No. 8), Hoyos (case No. 9),
Juarez (case No. 10), Lépez (case No. 11), Lupercio (case No. 12),
Maciel (case No. 13), Manriquez (case No. 14), Fuentes (case No. 15),
Martinez (case No. 16), Mendoza (case No. 17}, Ochoa (case No. 18),
Parra (case No. 19), Ramirez (case No. 20), Salazar (case No. 21),
Sanchez (case No. 23), Tafoya (case No. 24), Valdez (case No. 25),
Vargas (case No. 26}, Verano (case No. 27), Zamudio (case No. 29),
Alvarez (case No. 30), Fierro (case No. 31), Garcia (case No. 32),
Gomez (case No, 33), Hernandez (case No. 34), Ibarra (case No. 35),
Leal (case No. 36), Maldonado (case No. 37), Medellin (case No. 38),
Moreno (case No. 39), Plata (case No. 40), Ramirez (case No. 41),
Rocha (case No. 42), Regalado (case No. 43), Arias (case No. 44),
Caballero (case No. 45), Flores (case No. 46), Solache (case No. 47),
Fong (case No. 48), Camargo (case No. 49), Pérez (case No. 51),
Loza (case No. 52}, Torres {case No. 53) and Reyes (case No. Sd);

that the United States committed breaches of the obligation incum-
bent upon it under Article 36, paragraph 1 (6), to notify the Mexi-
can consular post of the detention of the Mexican nationals listed in
subparagraph (1) above, except in the cases of Mr. Judrez (No. 10)
and Mr. Hernandez (No. 34);

that by virtue of its breaches of Article 36, paragraph 1 fb), as
described in subparagraph (2) above, the United States also violated
the obligation incumbent upon it under Article 36, paragraph 1 (a),
of the Vienna Convention to enable Mexican consular officers to
communicate with and have access to their nationals, as well as its
obligation under paragraph 1 fc} of that Article regarding the right
of consular officers to visit their detained nationals:

that the United States, by virtue of these breaches of Article 36, para-
graph 1 (6), also violated the abligation incumbent upon it under
paragraph | fc} of that Article to enable Mexican consular officers
to arrange for legal representation of their nationals in the case of the
following individuals: Avena (case No. 1), Ayala (case No. 2), Car-
rera (case No. 4), Contreras (case No. 5), Gomez (case No. 8), Lopez
{case No. 11), Lupercio (case No. 12), Maciel (case No. 13}, Man-
riquez (case No. 14), Fuentes (case No. 15), Martinez (case No. 16),
Ochoa (case No. 18), Parra (case No. 19), Salazar (case No. 21),
Tafoya (case No, 24), Valdez (case No. 25), Vargas (case No. 26),
Alvarez (case No. 30), Fierro (case No. 31), Garcia (case No. 32),
Ibarra (case No. 35), Leal (case No. 36), Maldonado (case No. 37),
Medellin (case No. 38), Moreno (case No. 39), Plata (case No. 40),
Regalado (case No. 43), Arias (case No. 44), Caballero (case No. 45),

55 AVENA AND OTHERS (JUDGMENT)

Flores (case No. 46), Fong (case No. 48), Pérez (case No. 51), Loza
(case No. 52) and Torres (case No. 53).

*

ARTICLE 36, PARAGRAPH 2

107. In its third final submission Mexico asks the Court to adjudge
and declare that

“the United States violated its obligations under Article 36 (2) of the
Vienna Convention by failing to provide meaningful and effective
review and reconsideration of convictions and sentences impaired by
a violation of Article 36 {1)”.

108. Article 36, paragraph 2, provides:

“The rights referred to in paragraph 1 of this article shall be exer-
cised. in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and regu-
lations must enable full effect to be given to the purposes for which
the rights accorded under this article are intended.”

109. In this connection, Mexico has argued that the United States

“By applying provisions of its municipal law to defeat or foreclose
remedies for the violation of rights conferred by Article 36 — thus
failing to provide meaningful review and reconsideration of severe
sentences imposed in proceedings that violated Article 36 — ... has
violated, and continues to violate, the Vienna Convention.”

More specifically, Mexico contends that:

“The United States uses several municipal legal doctrines to pre-
vent finding any legal effect from the violations of Article 36. First,
despite this Court's clear analysis in LaGrand, US courts, at both the
state and federal level, continue to invoke default doctrines to bar
any review of Article 36 violations — even when the national had
been unaware of his rights to consular notification and communica-
tion and thus his ability to raise their violation as an issue at trial,
due to the competent authorities’ failure to comply with Article 36.”

110. Against this contention by Mexico, the United States argues that:

“the criminal justice systems of the United States address all errors

47

56 AVENA AND OTHERS (JUDGMENT)

in process through both judicial and executive clemency proceed-
ings, relying upon the latter when rules of default have closed out the
possibility of the former, That is, the ‘laws and regulations’ of the
United States provide for the correction of mistakes that may be
relevant to a criminal defendant to occur through a combination
of judicial review and clemency. These processes together, working
with other competent authorities, give full effect. to the purposes for
which Article 36 (1) is intended, in conformity with Article 36 (2).
And, insofar as a breach of Article 36 (1) has occurred, these pro-
cedures satisfy the remedial function of Article 36 (2) by allowing
the United States to provide review and reconsideration of convic-
tions and sentences consistent with LaGrand.”

111. The “procedural default” rule in United States law has already
been brought to the attention of the Court in the LaGrand case. The fol-
lowing brief definition of the rule was provided by Mexico in its Memo-
rial in this case and has not been challenged by the United States: “a
defendant who could have raised, but fails to raise, a legal issue at. trial
will generally not be permitted to raise it in future proceedings, on appeal
or in a petition for a writ of habeas corpus”, The rule requires exhaustion
of remedies, inter alia, at the state level and before a Aabeus corpus
motion can be filed with federal courts. In the LaGrand case, the rule in
question was applied by United States federal courts; in the present case,
Mexico also complains of the application of the rule in certain state
courts of criminal appeal.

112. The Court has already considered the application of the “pro-
cedural default” rule, alleged by Mexico to be a hindrance to the full
implementation of the international obligations of the United States
under Article 36, in the LaGrand case, when the Court addressed the issue
of its implications for the application of Article 36, paragraph 2, of the
Vienna Convention, The Court emphasized that “a distinction must be
drawn between that rule as such and its specific application in the present
case”. The Court stated:

“Tn itself, the rule does not violate Article 36 of the Vienna Con-
vention. The problem arises when the procedural default rule does
not allow the detained individual to challenge a conviction and sen-
tence by claiming, in reliance on Article 36, paragraph 1, of the Con-
vention, that the competent national authorities failed to comply
with their obligation to provide the requisite consular information
‘without delay’, thus preventing the person from seeking and obtain-
ing consular assistance from the sending State.” (LC. Reports
2001, p. 497, para. 90.)

48

57 AVENA AND OTHERS (JUDGMENT)

On this basis, the Court concluded that “the procedural default rule
prevented counsel for the LaGrands to effectively challenge their convic-
tions and sentences other than on United States constitutional grounds”
(LCI. Reports 2001, p. 497, para. 91). This statement of the Court seems
equally valid in relation to the present case, where a number of Mexican
nationals have been placed exactly in such a situation.

113. The Court will return to this aspect below, in the context of Mexi-
co’s claims as to remedies. For the moment, the Court simply notes that
the procedural default rule has not been revised, nor has any provision
been made to prevent its application in cases where it has been the failure
of the United States itself to inform that may have precluded counsel
from being in a position to have raised the question of a violation of the
Vienna Convention in the initial trial. It thus remains the case that the
procedural default rule may continue to prevent courts from attaching
legal significance to the fact, infer alia, that the violation of the rights set
forth in Article 36, paragraph 1, prevented Mexico, in a timely fashion,
from retaining private counsel for certain nationals and otherwise assist-
ing in their defence. In such cases, application of the procedural default
tule would have the effect of preventing “full effect [from being] given to
the purposes for which the rights accorded under this article are intended”,
and thus violate paragraph 2 of Article 36. The Court notes moreover
that in several of the cases cited in Mexico’s final submissions the pro-
cedural default rule has already been applied, and that in others it could
be applied at subsequent stages in the proceedings. However, in none of
the cases, save for the three mentioned in paragraph 114 below, have the
criminal proceedings against the Mexican nationals concerned already
reached a stage at which there is no further possibility of judicial re-
examination of those cases: that is to say, all possibility 1s not yet exctuded
of “review and reconsideration” of conviction and sentence, as called for
in the LaGrand case, and as explained further in paragraphs 128 and fol-
lowing below. It would therefore be premature for the Court to conclude
at this stage that, in those cases, there is already a violation of the obli-
gations under Article 36, paragraph 2, of the Vienna Convention.

114. By contrast, the Court notes that in the case of three Mexican
nationals, Mr. Fierro (case No. 31), Mr. Moreno (case No. 39), and
Mr. Torres (case No, 53), conviction and sentence have become final.
Moreover, in the case of Mr. Torres the Oklahoma Court of Criminal
Appeals has set an execution date (see paragraph 21 above, in fine).
The Court must therefore conclude that, in relation to these three indi-
viduals, the United States is in breach of the obligations incumbent
upon it under Article 36, paragraph 2, of the Vienna Convention.

* *

49

58 AVENA AND OTHERS (JUDGMENT)

LEGAL CONSEQUENCES OF THE BREACH

115, Having concluded that in most of the cases brought before the
Court by Mexico in the 52 instances, there has been a failure to observe
the obligations prescribed by Article 36, paragraph 1 (), of the Vienna
Convention, the Court now proceeds to the examination of the legal
consequences of such a breach and of what tegal remedies should be con-
sidered for the breach,

116. Mexico in its fourth, fifth and sixth submissions asks the Court to
adjudge and declare:

“(4) that pursuant to the injuries suffered by Mexico in its own right
and in the exercise of diplomatic protection of tts nationals,
Mexico is entitled to full reparation for these injuries in the
form of restifutio in integrum;

(5) that this restitution consists of the obligation to restore the
status quo arte by annulling or otherwise depriving of full
force or effect the conviction and sentences of all 52 Mexican
nationals; [and]

(6) that this restitution also includes the obligation to take
all measures necessary to ensure that a prior violation of
Article 36 shall not affect the subsequent proceedings.”

117. In support of its fourth and fifth submissions, Mexico argues that
“Tt is well-established that the primary form of reparation available to a
State injured by an internationally wrongful act is restitutio in integrum”,
and that “The United States is therefore obliged to take the necessary
action to restore the status que ante in respect of Mexico’s nationals
detained, tried, convicted and sentenced in violation of their internation-
ally recognized rights.” To restore the status quo ante, Mexico contends
that “restitution here must take the form of annulment of the convictions
and sentences that resulted from the proceedings tainted by the Article 36
violations”, and that “It follows from the very nature of restiturio that,
when a violation of an international obligation is manifested in a judicial
act, that act must be annulled and thereby deprived of any force or effect
in the national legal system.” Mexico therefore asks in its submissions
that the convictions and sentences of the 52 Mexican nationals be
annulled, and that, in any future criminal proceedings against these 52
Mexican nationals, evidence obtained in breach of Article 36 of the
Vienna Convention be excluded.

118. The United States on the other hand argues:

“LaGrand’s holding calls for the United States to provide, in each
case, ‘review and reconsideration’ that ‘takes account of the viola-

30

59 | AVENA AND OTHERS (JUDGMENT)

tion, not ‘review and reversal’, not across-the-board exclusions of
evidence or nullification of convictions simply because a breach of
Article 36 (1) occurred and without regard to its effect upon the con-
viction and sentence and, not... ‘a precise, concrete, stated result:

359

to re-establish the status que ante’”.

119. The general principle on the legal consequences of the commis-
sion of an internationally wrongful act was stated by the Permanent
Court of International Justice in the Factory at Chorzéw case as follows:
“It is a principle of international law that the breach of an engagement
involves an obligation to make reparation in an adequate form.” (Fac-
tory at Chorzôw, Jurixdiction, 1927, P.CLI, Series À, Ne. 9, p. 21)
What constitutes “reparation in an adequate form” clearly varies depend-
ing upon the concrete circumstances surrounding each case and the pre-
cise nature and scope of the injury, since the question has to be examined
from the viewpoint of what is the “reparation in an adequate form” that
corresponds to the injury. In a subsequent phase of the same case, the
Permanent Court went on to elaborate on this point as follows:

“The essential principle contained in the actual notion of an illegal
act — a principle which seems to be established by international
practice and in particular by the decisions of arbitral tribunals — is
that reparation must, as far as possible, wipe out all the conse-
quences of the illegal act and reestablish the situation which would,
in all probability, have existed if that act had not been committed.”
(Factory ai Chorzéw, Merits, 1928, P.CII, Series A, No. 17,
p. 47.)

120, In the LaGrand case the Court made a general statement on the
principle involved as follows:

“The Court considers in this respect that if the United States, not-
withstanding its commitment [to ensure implementation of the
specific measures adopted in performance of its obligations under
Article 36, paragraph 1 (#)], should fail in its obligation of consular
notification to the detriment of German nationals, an apology would
not suffice in cases where the individuals concerned have been sub-
jected to prolonged detention or convicted and sentenced to severe
penalties. In the case of such a conviction and sentence, it would be
incumbent upon the United States to allow the review and reconsid-
eration of the conviction and sentence by taking account of the vio-
lation of the rights set forth in the Convention. This obligation can
be carried out in various ways. The choice of means must be left to
the United States.” (EC J. Reports 2007, pp. 513-514, para. 125.)

121. Similarly, in the present case the Court’s task is to determine
what would be adequate reparation for the violations of Article 36. It
should be clear from what has been observed above that the internation-
ally wrongful acts committed by the United States were the failure of its

51

60 AVENA AND OTHERS (JUDGMENT)

competent authorities to inform the Mexican nationals concerned, to
notify Mexican consular posts and to enable Mexico to provide consular
assistance. It follows that the remedy to make good these violations
should consist in an obligation on the United States to permit review and
reconsideration of these nationals’ cases by the United States courts, as
the Court will explain further in paragraphs, 128 ta 134 below, with a
view 10 ascertaining whether in each case the violation of Article 36 com-
mitted by the competent authorities caused actual prejudice to the defend-
ant in the process of administration of criminal justice.

122. The Court reaffirms-that the case before it concerns Article 36 of
the Vienna Convention and not the correctness as such of any conviction
or sentencing. The question of whether the violations of Article 36, para-
graph 1, are to be regarded as having, in the causal sequence of events,
ultimately led to convictions and severe penalties is an integral part of
criminal proceedings before the courts of the United States and is for
them to determine in the process of review and reconsideration. In so
doing, it is for the courts of the United States to examine the facts, and in
particular the prejudice and its causes, taking account of the violation of
the rights set forth in the Convention.

123. It is not to be presumed, as Mexico asserts, that partial or total
annulment of conviction or sentence provides the necessary and sole
remedy. In this regard, Mexico cites the recent Judgment of this Court
in the case concerning the Arrest Warrant of 11 April 2000 { Democratic
Republic of the Congo v. Belgium), in which the “Court ordered the
cancellation of an arrest warrant ‘issued by a Belgian judicial official in
violation of the international immunity of the Congo Minister for Foreign
Affairs”. However, the present case has clearly to be distinguished from
the Arrest Warrant case. In that case, the question of the legality under
international law of the act of issuing the arrest warrant against the
Congolese Minister for Foreign Affairs by the Belgian judicial authori-
ties was itself the subject-matter of the dispute. Since the Court found
that act to be in violation of international law relating to immunity, the
proper legal consequence was for the Court to order the cancellation of
the arrest warrant in question (C.J. Reports 2002, p. 33), By contrast,
in the present case it is not the convictions and sentences of the Mexican
nationals which are to be regarded as a violation of international law,
but solely certain breaches of treaty obligations which preceded them.

124. Mexico has further contended that the right to consular notitica-
tion and consular communication under the Vienna Convention is a fun-
damental human right that constitutes part of due process in criminal
proceedings and should be guaranteed in the territory of each of the Con-
tracting Parties to the Vienna Convention; according to Mexico, this

52

61 AVENA AND GTHERS (JUDGMENT)

tight, as such, is so fundamental that its infringement will ipse facto pro-
duce the effect of vitiating the entire process of the criminal proceedings
conducted in violation of this fundamental right. Whether or not the
Vienna Convention rights are human rights is not a matter that this
Court need decide. The Court would, however, observe that neither the
text nor the object and purpose of the Convention, nor any indication im
the travaux préparatoires, support the conclusion that Mexico draws
from its contention in that regard.

125. For these reasons, Mexico’s fourth and fifth submissions cannot
be upheld.

126. The reasoning of the Court on the fifth submission of Mexico is
equally valid in relation to the sixth submission of Mexico. In elaboration
of its sixth submission, Mexico contends that,

“As an aspect of restitutio in integrum, Mexico is also entitled to
an order that in any subsequent criminal proceedings against the
nationals, statements and confessions obtained prior to notification
to the national of his right to consular assistance be excluded.”

Mexico argues that “The exclusionary rule applies in both common law
and civil law jurisdictions and requires the exclusion of evidence that is
obtained in a manner that violates due process obligations”, and on this
basis concludes that

“The status of the exclusionary rule as a general principle of law
permits the Court to order that the United States is obligated to
apply this principle in respect of statements and confessions given to
United States law enforcement officials prior to the accused Mexican
nationals being advised of their consular rights in any subsequent
criminal proceedings against them.”

127. The Court does not consider that it is necessary to enter into an
examination of the merits of the contention advanced by Mexico that the
“exclusionary rule” is “a general principle of law under Article 38 (1) fe}
of the .. . Statute” of the Court. The issue raised by Mexico in its sixth
submission relates to the question of what legal consequences flow from
the breach of the obligations under Article 36, paragraph | — a question
which the Court has already sufficiently discussed above in relation to the
fourth and the fifth submissons of Mexico. The Court is of the view that
this question is one which has to be examined under the concrete circum-
stances of each case by the United States courts concerned in the process
of their review and reconsideration. For this reason, the sixth submission
of Mexico cannot he upheld.

128. While the Court has rejected the fourth, fifth and sixth submis-
sions of Mexico relating to the remedies for the breaches by the United

53

62 AVENA AND OTHERS (JUDGMENT)

States of its international obligations under Article 36 of the Vienna Con-
vention, the fact remains that such breaches have been committed, as the
Court has found, and it is thus incumbent upon the Court to specify what
remedies are required in order to redress the injury done to Mexico and
to its nationals by the United States through non-compliance with those
international! obligations. As has already been observed in paragraph 120,
the Court in the LaGrand Judgment stated the general principle to be
applied in such cases by way of a remedy to redress an injury of this kind
(LCL Reports 2001, pp. 513-514, para. 125).

129. In this regard, Mexico’s seventh submission also asks the Court
to adjudge and declare:

“That to the extent that any of the 52 convictions or sentences are
not annulled, the United States shall provide, by means of its own
choosing, meaningful and effective review and reconsideration of the
convictions and sentences of the 52 nationals, and that this obliga-
tion cannot be satisfied by means of clemency proceedings or if any
municipal law rule or doctrine [that fails to attach legal significance
to an Article 36 {1} violation] is applied.”

130. On this question of “review and reconsideration”, the United
States takes the position that it has indeed conformed its conduct to the
LaGrand Judgment. In a further elaboration of this point, the United
States argues that “[t]he Court said in LaGrand that the choice of means
for allowing the review and. reconsideration it called for ‘must be left’ to
the United States”, but that “Mexico would not leave this choice to the
United States but have the Court undertake the review instead and
decide at once that the breach requires the conviction and sentence to be
set aside in each case”.

131. In stating in its Judgment in the LaGrand case that “the United
States of America, by means of its own choosing, shall allow the review
and reconsideration of the conviction and sentence” (C.J. Reports
2001, p. 516, para. 128 (7); emphasis added), the Court acknowledged
that the concrete modalities for such review and reconsideration should
be left primarily to the United States. It should be underlined, however,
that this freedom in the choice of means for such review and reconsidera-
tion is not without qualification: as the passage of the Judgment quoted
above makes abundantly clear, such review and reconsideration has to be
carried out “by taking account of the violation of the rights set forth in
the Convention” (CZ. Reports 2001, p. 514, para. 125), including, in
particular, the question of the legal consequences of the violation upon
the criminal proceedings that have followed the violation.

132. The United States argues (1) “that the Court's decision in LaGrand
in calling for review and reconsideration called for a process to re-exam-
ine a conviction and sentence in light of a breach of Article 36”; (2) that,
“in calling for a process of review, the Court necessarily implied that one
legitimate result of that process might be a conclusion that the conviction
and sentence should stand”; and (3) “that the relief Mexico seeks in this

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63 AVENA AND OTHERS (JUDGMENT)

case is flatly inconsistent with the Judgment in LaGrand: it seeks pre-
cisely the award of a substantive outcome that the LaGrand Court
declined to provide”.

133. However, the Court wishes to point out that the current situation
in the United States criminal procedure, as explained by the Agent at the
hearings, is that

“If the defendant alleged at trial that a failure of consular informa-
tion resulted in harm te a particular right essential to a fair trial, an
appeals court can review how the lower court handled that claim of
prejudice”,

but that

“If the foreign national did noi raise his Article 36 claim at trial,
he may face procedural constraints [i.e., the application of the pro-
cedural default rule] on raising that particular claim in direct or col-
lateral judicial appeals” (emphasis added).

As a result, a claim based on the violation of Article 36, paragraph 1, of
the Vienna Convention, however meritorious in itself, could be barred in
the courts of the United States by the operation of the procedural default
tule (see paragraph 111 above).

134. Tt is not sufficient for the United States to argue that “[w]hatever
label [the Mexican defendant] places on his claim, his right... must and
will be vindicated. if it is raised in some form at trial” (emphasis added),
and that

“In that way, even though a failure to label the complaint as a
breach of the Vienna Convention may mean that he has technically
speaking forfeited his right to raise this issue as a Vienna Conven-
tion claim, on appeal that failure would not bar him from independ-
ently asserting a claim that he was prejudiced because he lacked this
critical protection needed for a fair trial.” (Emphasis added.)

The crucial point in this situation is that, by the operation of the
procedural default rule as it is applied at present, the defendant is
effectively barred from raising the issue of the violation of his rights
under Article 36 of the Vienna Convention and is limited to seeking the
vindication of his rights under the United States Constitution.

*

135. Mexico, in the latter part of its seventh submission, has stated
that “this obligation [of providing review and reconsideration] cannot be

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64 AVENA AND OTHERS (JUDGMENT)

satisfied by means of clemency proceedings”. Mexico elaborates this
point by arguing first of all that “the United States’s reliance on clemency
proceedings is wholly inconsistent with its obligation to provide a
remedy, as that obligation was found by this Court in LaGrand’. More
specifically, Mexico contends:

“First, it is clear that the Court’s direction to the United States in
LaGrand clearly contemplated that ‘review and reconsideration’
would be carried out by judicial procedures ....

Second, the Court was fully aware that the LaGrand brothers had
received a clemency hearing, during which the Arizona Pardons
Board took into account the violation of their consular rights.
Accordingly, the Court determined in LaGrand that clemency review
alone did not constitute the required ‘review and reconsideration’ . . .

Finally, the Court specified that the United States must ‘allow the
review and reconsideration of the conviction and sentence by taking
account of the violation of the rights set forth in the Convention’...
it is a basic matter of U.S. criminal procedural law that courts
review convictions; clemency panels do not. With the rare exception
of pardons based on actual innocence, the focus of capital clemency
review is on the propriety of the sentence and not on the underlying
conviction.”

Furthermore, Mexico argues that the clemency process is in itself an
ineffective remedy to satisfy the international obligations of the United
States, It concludes: “clemency review is standardless, secretive, and
immune from judicial oversight”.

Finally, in support of its contention, Mexico argues that

“the failure of state clemency authorities to pay heed to the interven-
tion of the US Department of State in cases of death-sentenced
Mexican nationals refutes the [United States] contention that clem-
ency review will provide meaningful consideration of the violations
of rights conferred under Article 36”.

4

136, Against this contention of Mexico, the United States claims that
it “gives ‘full effect” to the ‘purposes fer which the rights accorded under
[Article 36, paragraph 1,] are intended’ through executive clemency”. It

argues that “[t]he clemency process . . . is well suited to the task of pro-
viding review and reconsideration”. The United States explains that
“Clemency ... is more than a matter of grace; it is part of the overall

scheme for ensuring justice and fairness in the legal process” and that

36

65 AVENA AND OTHERS (JUDGMENT)

“Clemency procedures are an integral part of the existing ‘laws and regu-
lations’ of the United States through which errors are addressed”.

137. Specifically in the context of the present case, the United States
contends that the following two points are particularly noteworthy:

“First, these clemency procedures allow for broad participation by
advocates of clemency, including an inmate’s attorney and the send-
ing state’s consular officer . . . Second, these clemency officials are
not bound by principles of procedural default, finality, prejudice
standards, or any other limitations on judicial review. They may
consider any facts and circumstances that they deem appropriate
and relevant, including specifically Vienna Convention claims.”

138. The Court would emphasize that the “review and reconsidera-
tion” prescribed by it in the LaGrand case should be effective. Thus it
should “tak[e] account of the violation of the rights set forth in [the] Con-
vention” (.C./. Reports 2001, p. 516, para. 128 (7)) and guarantee that
the violation and the possible prejudice caused by that violation will be
fully examined and taken into account in the review and reconsideration
process. Lastly, review and reconsideration should be both of the sen-
tence and of the conviction.

139. Accordingly, in a situation of the violation of rights under
Article 36, paragraph 1, of the Vienna Convention, the defendant raises
his claim in this respect not as a case of “harm to a particular right essen-
tial to a fair trial” — a concept relevant to the enjoyment of due process
rights under the United States Constitution — but as a case involving the
infringement of his rights under Article 36, paragraph 1. The rights guar-
anteed under the Vienna Convention are treaty rights which the United
States has undertaken to comply with in relation to the individual con-
cerned, irrespective of the due process rights under United States consti-
tutional law. In this regard, the Court would point out that what is
crucial in the review and reconsideration process is the existence of a pro-
cedure which guarantees that full weight is given to the violation of the
rights set forth in the Vienna Convention, whatever may be the actual
outcome of such review and reconsideration.

140, As has been explained in paragraphs 128 to 134 above, the Court
is of the view that, in cases where the breach of the individual rights of
Mexican nationals under Article 36, paragraph 1 (6), of the Convention
has resulted, in the sequence of judicial proceedings that has followed, in
the individuals concerned. being subjected to prolonged detention or con-
victed and sentenced. to severe penalties, the legal consequences of this
breach have to be examined and taken into account in the course of

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66 AVENA AND OTHERS (JUDGMENT)

review and reconsideration. The.Court considers that it is the judicial
process that is suited to this task.

141. The Court in the LaGrand case left to the United States the
choice of means as to how review and reconsideration should be achieved,
especially in the light of the procedural default rule. Nevertheless, the
premise on which the Court proceeded in that case was that the process
of review and reconsideration should occur within the overall judicial
proceedings relating to the individual defendant concerned.

142. As regards the clemency procedure, the Court notes that this per-
forms an important function in the administration of criminal justice in
the United States and is “the historic remedy for preventing miscarriages
of justice where judicial process has been exhausted” (Herrera v. Collins,
506 US 390 (1993) at pp. 411-412). The Court accepts that executive
clemency, while not judicial, is an integral part of the overall scheme for
ensuring justice and fairness in the legal process within the United States
criminal justice system. It must, however, point out that what is at issue
in the present case is not whether executive clemency as an institution is
or is not an integral part of the “existing laws and regulations of the
United States”, but whether the clemency process as practised within the
criminal justice systems of different states in the United States can, in and
of itself, qualify as an appropriate means for undertaking the effective
“review and reconsideration of the conviction and sentence by taking
account of the violation of the rights set forth in the Convention”, as the
Court prescribed in the LaGrand Judgment (1. C./. Reporis 2001, p. 514,
para. 125).

143. It may be true, as the United States argues, that in a number of
cases “clemency in fact results in pardons of convictions as well as com-
mutations of sentences”. In that sense and to that extent, it might be
argued that the facts demonstrated by the United States testify to a
degree of effectiveness of the clemency procedures as a means of relieving
defendants on death row from execution. The Court notes, however, that
the clemency process, as currently practised within the United States
criminal justice system, does not appear to meet the requirements
described in paragraph 138 above and that it is therefore not sufficient in
itself to serve as an appropriate means of “review and reconsideration” as
envisaged by the Court in the LaGrand case. The Court considers never-
theless that appropriate clemency procedures can supplement judicial
review and reconsideration, in particular where the judicial system has
failed to take due account of the violation of the rights set forth in the
Vienna Convention, as has occurred in the case of the three Mexican
nationals referred to in paragraph 114 above.

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67 AVENA AND OTHERS (JUDGMENT)

144. Finally, the Court will consider the eighth submission of Mexico,
in which it asks the Court to adjudge and declare:

“That the [United States] shall cease its violations of Article 36 of
the Vienna Convention with regard to Mexico and its 52 nationals
and shall provide appropriate guarantees and assurances that it
shall take measures sufficient to achieve increased compliance with
Article 36 (1) and to ensure compliance with Article 36 (2).”

145. In this respect, Mexico recognizes the efforts by the United States
to raise awareness of consular assistance rights, through the distribution
of pamphlets and pocket cards and by the conduct of training pro-
grammes, and that the measures adopted by the United States to that
end were noted by the Court in its decision in the LaGrand case (LCI.
Reports 2061, pp. 511-513, paras. 121, 123-124). Mexico, however, notes
with regret that

“the United States programme, whatever its components, has
proven ineffective to prevent the regular and continuing violation
by its competent authorities of consular notification and assistance
rights guaranteed by Article 36”.

146, In particular, Mexico claims in relation to the violation of the
obligations under Article 36, paragraph I, of the Vienna Convention:

“First, competent authorities of the United States regularly fail to
provide the timely notification required by Article 36 (1) (4) and
thereby to /sic} frustrate the communication and access contem-
plated by Article 36 (1) (a) and the assistance contemplated by
Article 36 (1) fc). These violations continue notwithstanding the
Court’s judgment in LaGrand and the programme described there.

Mexico has demonstrated, moreover, that the pattern of regular
non-compliance continues. During the first half of 2003, Mexico has
identified at least one hundred cases in which Mexican nationals
have been arrested by competent authorities of the United States for
serious felonies but not timely notified of their consular notification
rights.”

Furthermore, in relation to the violation of the obligations under
Article 36, paragraph 2, of the Vienna Convention, Mexico claims:

“Second, courts in the United States continue to apply doctrines
of procedural default and non-retroactivity that prevent those courts
from reaching the merits of Vienna Convention claims, and those
courts that have addressed the merits of those claims (because no
procedural bar applies) have repeatedly held that no remedy is avail-

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68 AVENA AND OTHERS (IUDGMENT)

able for a breach of the obligations of Article 36 . . . Likewise, the
United States’ reliance on clemency proceedings to meet LaGrand’s
requirement of review and reconsideration represents a deliberate
decision to allow these legal rules and doctrines to continue to have
their inevitable effect. Hence, the United States continues to breach
Article 36 (2) by failing to give full effect to the purposes for which
the rights accorded under Article 36 are intended.”

147. The United States contradicts this contention of Mexico by claim-
ing that “its efforts to improve the conveyance of information about con-
sular notification are continuing unabated and are achieving tangible
results”. It contends that Mexico “fails to establish a ‘regular and con-
tinuing’ pattern of breaches of Article 36 in the wake of LaGrand’.

148, Mexico emphasizes the necessity of requiring the cessation of the
wrongful acts because, it alleges, the violation of Article 36 with regard to
Mexico and its 52 nationals still continues. The Court considers, how-
ever, that Mexico has not established a continuing violation of Article 36
of the Vienna Convention with respect to the 52 individuals referred to in
its final submissions; it cannot therefore uphold Mexico’s claim seeking
cessation. The Court would moreover point out that, inasmuch as these
52 individual cases are at various stages of criminal proceedings before
the United States courts, they are in the state of peñdente lite; and the
Court has already indicated in respect of them what it regards as the
appropriate remedy, namely review and reconsideration by reference to
the breach of the Vienna Convention.

149. The Mexican request for guarantees of non-repetition is based on -
its contention that beyond these 52 cases there is a “regular and continu-
ing” pattern of breaches by the United States of Article 36. In this
respect, the Court observes that there is no evidence properly before it
that would establish a general pattern. While it is a matter of concern
that, even in the wake of the LaGrand Judgment, there remain a substan-
tial number of cases of failure to carry out the obligation to furnish con-
sular information to Mexican nationals, the Court notes that the United
States has been making considerable efforts to ensure that its law enforce-
ment authorities provide consular information to every arrested person
they know or have reason to believe is a foreign national. Especially at
the stage of pre-trial consular information, it is noteworthy that the
United States has been making good faith efforts to implement the obli-
gations incumbent upon it under Article 36, paragraph 1, of the Vienna
Convention, through such measures as a new outreach programme
launched in 1998, including the dissemination to federal, state and local
authorities of the State Department bocklet mentioned above in para-

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69 AVENA AND OTHERS (JUDGMENT)

graph 63. The Court wishes to recall in this context what it has said in
paragraph 64 about efforts in some jurisdictions to provide the informa-
tion under Article 36, paragraph 1 (4), in parallel with the reading of the
“Miranda rights”.

150. The Court would further note in this regard that in the LaGrand
case Germany sought, inter alia, “a straightforward assurance that the
United States will not repeat its unlawful acts” (LCJ. Reports 2001,
p. 511, para. 120). With regard to this general demand for an assurance
of non-repetition, the Court stated:

“If a State, in proceedings before this Court, repeatedly refers to
substantial activities which it is carrying out in order to achieve com-
pliance with certain obligations under a treaty, then this expresses a
commiiment to follow through with the efforts in this regard. The
programme in question certainly cannot provide an assurance that
there will never again be a failure by the United States to observe the
obligations of notification under Article 36 of the Vienna Conven-
tion. But no State could give such a guarantee and Germany does
not seek it. The Court considers that the commitment expressed by
the United States to ensure implementation of the specific measures
adopted in performance of its obligations under Article 36, para-
graph 1 (6), must be regarded as meeting Germany’s request for a
general assurance of non-repetition.” (C.J. Reports 2001, pp. 512-
513, para. 124.)

The Court believes that as far as the request of Mexico for guarantees
and assurances of non-repetition is concerned, what the Court stated in
this passage of the LaGrand Judgment remains applicable, and therefore
meets that request.

+ * à

151. The Court would now re-emphasize a point of importance. In the
present case, it has had occasion to examine the obligations of the United
States under Article 36 of the Vienna Convention in relation to Mexican
nationals sentenced to death in the United States. Its findings as to the
duty of review and reconsideration of convictions and sentences have
been directed to the circumstance of severe penalties being imposed on
foreign nationals who happen to be of Mexican nationality. To avoid any
ambiguity, it should be made clear that, while what the Court has stated
concerns the Mexican nationals whose cases have been brought before it
by Mexico, the Court has been addressing the issues of principle raised in

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70 AVENA AND OTHERS (JUDGMENT)

the course of the present proceedings from the viewpoint of the general
application of the Vienna Convention, and there can be no question of
making an 4 contrario argument in respect of any of the Court’s findings
in the present Judgment. In other words, the fact that in this case the
Court’s ruling has concerned only Mexican nationals cannot be taken to
imply that the conclusions reached by it in the present Judgment do not
apply to other foreign nationals finding themselves in similar situations in
the United States.

* +

152. By its Order of 5 February 2003 the Court, acting on a request by
Mexico, indicated by way of provisional measure that

“The United States of America shall take all measures necessary
to ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno
Ramos and Mr. Osvaldo Torres Aguilera are not executed pending
final judgment in these proceedings” (7. C.J. Reports 2003, pp. 91-92,
para. 59 (I)) (see paragraph 21 above).

The Order of 5 February 2003, according to its terms and to Article 41 of
the Statute, was effective pending final judgment, and the obligations of
the United States in that respect are, with effect from the date of the
present Judgment, replaced by those declared im this Judgment. The
Court has rejected Mexico’s submission that, by way of restitutio in inte-
grum, the United States is obliged to annul the convictions and sentences
of all of the Mexican nationals the subject of its claims (see above, para-
graphs 115-125). The Court has found that, in relation to these three per-
sons (among others}, the United States has committed breaches of its
obligations under Article 36, paragraph 1 (), of the Vienna Convention
and Article 36, paragraphs | fa} and fe), of that Convention; moreover,
in respect of those three persons alone, the United States has also
committed breaches of Article 36, paragraph 2, of the said Convention.
The review and reconsideration of conviction and sentence required by
Article 36, paragraph 2, which is the appropriate remedy for breaches of
Article 36, paragraph 1, has not been carried out. The Court considers
that in these three cases it is for the United States to find an appropriate
remedy having the nature of review and reconsideration according to the
criteria indicated in paragraphs 138 e¢ seg. of the present Judgment.

153. For these reasons,
THE Court,
(1) By thirteen votes to two,

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71 AVENA AND OTHERS (JUDGMENT)

Rejects the objection by the United Mexican States to the admissibility
of the objections presented by the United States of America to the juris-
diction of the Court and the admissibility of the Mexican claims;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Tomka;

AGAINST: Judge Parra-Aranguren; Judge ad hoc Sepulveda;

(2) Unanimously,

Rejects the four objections:by the United States of America to the
jurisdiction of the Court;

(3) Unanimously,

Rejects the five objections by the United States of America to the
admissibility of the claims of the United Mexican States;

(4) By fourteen votes to one,

Finds that, by not informing, without delay upon their detention, the
51 Mexican nationals referred to in paragraph 106 (1) above of their
rights under Article 36, paragraph 1 (6), of the Vienna Convention on
Consular Relations of 24 April 1963, the United States of America
breached the obligations incumbent upon it under that subparagraph;

TN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooïjmans, Rezek, Al-Khasawnch,
Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepülveda;

AGAINST: Judge Parra-Aranguren;
{5} By fourteen votes to one,

Finds that, by not notifying the appropriate Mexican consular post
without delay of the detention of the 49 Mexican nationals referred to in
paragraph 106 (2) above and thereby depriving the United Mexican
States of the right, in a timely fashion, to render the assistance provided
for by the Vienna Convention to the individuals concerned, the United
States of America breached the obligations incumbent upon it under
Article 36, paragraph 1 (4);

TN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,

Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepülveda;

AGAINST: Judge Parra-Aranguren;

(6} By fourteen votes to one,

Finds that, in relation to the 49 Mexican nationals referred to in para-
graph 106 (3) above, the United States of America deprived the United
Mexican States of the right, in a timely fashion, to communicate with and
have access to those nationals and to visit them in detention, and thereby

63

72 AVENA AND OTHERS (JUDGMENT}

breached the obligations incumbent upon it under Article 36, para-
graph 1 fa} and fe}, of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepülveda;

AGAINST: Judge Parra-Aranguren.;
(7) By fourteen votes to one,

Finds that, in relation to the 34 Mexican nationals referred to in para-
graph 106 {4} above, the United States of America deprived the United
Mexican States of the right, in a timely fashion, to arrange for legal rep-
resentation of those nationals, and thereby breached the obligations
incumbent upon it under Article 36, paragraph 1 fc), of the Convention;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,
Koroma, Vereshchetin, Higgins, Kooïjmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;

AGAINST: Judge Parra-Aranguren ;
(8) By fourteen votes to one,

Finds that, by not permitting the review and reconsideration, in the
light of the rights set forth in the Convention, of the conviction and sen-
tences of Mr, César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos
and Mr. Osvaldo Torres Aguilera, after the violations referred to in sub-
paragraph (4) above had been established in respect of those individuals,
the United States of America breached the obligations incumbent upon it
under Article 36, paragraph 2, of the Convention;

IN FavoUR: President Shi; Vice-President Ranjeva; Judges Guillaume,

Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Étaraby, Owada, Tomka; Judge ad hoc Sepulveda;

AGAINST: Judge Parra-Aranguren ;
(9} By fourteen votes to one,

Finds that the appropriate reparation in this case consists in the obliga-
tion of the United States of America to provide, by means of its own choos-
ing, review and reconsideration of the convictions and sentences of the
Mexican nationals referred to in subparagraphs (4), (5), (6} and (7) above,
by taking account both of the violation of the rights set forth in Article 36
of the Convention and of paragraphs 138 to 141 of this Judgment;

IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume,

Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;

AGAINST: Judge Parra-Aranguren;

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73 AVENA AND OTHERS (JUDGMENT)

(10) Unanimously,

Takes note of the commitment undertaken by the United States of
America to ensure implementation of the specific measures adopted in
performance of its obligations under Article 36, paragraph 1 (6), of the
Vienna Convention; and finds that this commitment must be regarded as
meeting the request by the United Mexican States for guarantees and
assurances of non-repetition;

(11) Unanimously,

Finds that, should Mexican nationals nonetheless be sentenced to
severe penalties, without their rights under Article 36, paragraph 1 fb},
of the Convention having been respected, the United States of America
shall provide, by means of its own choosing, review and reconsideration
of the conviction and sentence, so as to allow full weight to be given to
the violation of the rights set forth in the Convention, taking account of
paragraphs 138 to 141 of this Judgment.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this thirty-first day of March, two
thousand and four, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the United Mexican States and the Government of the United States of
America, respectively.

fSigned) Sui Jiuyong,
President.

(Signed) Philippe COUVREUR,
‘Registrar.

President Sut and Vice-President Ranieva append declarations to the
Judgment of the Court; Judges VERESHCHETIN, PARRA-ARANGUREN and
Tomka and Judge ad hoc SerULveDA append separate opinions to the
Judgment of the Court.

({nitialled) JY 8.
(Initialled) PLC.

65