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NTERNATlONAL COURT O F JUSTICE

REPORTS OF JUDGMENTS,

ADVISORY OPINIONS AND ORDERS

C SE CONCERNING AVENA AND OTHER

MEXIC N N TION LS

MEXICO v UNITED STATES OF AMERICA)

JUDGMENT OF 31 MARCH 2 4

COUR INTERNATlON ALE DE JUSTICE

RECUEIL DES ARRETS,

AVIS CONSULTATIFS ET ORDONNANCES

FF IRE VEN ET UTRES

RESSORTISS NTS MEXIC TNS

RRET DU 3 MARS 2 4



Official citation

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

ode ofliciel de citation

A vena et autres ressortissants mexicains(Mex ique c. E tats- Unis d A mtrique),

urrt?t, C.I .J . Recuei l2004, p 12

ISSN 0074 4441

ISBN 92 1 070989 6

k U b€X 88o e vente



3 MARCH 2004

JU GMENT

AVENA ND OTHER MEXlCAN NATIONALS

(MEXICO v UNlTED STATES OF AMERICA)

AVENA ET AUTR ES RESSORTISSANTS MEXICAFNS

(MEXIQUE c ETATS-UNIS D AME RIQUE)

M A R S 2004

ARRET



2 U431 March

Gencral ist

No 28

INTERNATIONAL OURT OF JUSTICE

YEAR 2 4

31 March 2004

CASE ON ERNING AVENA ND OTHER

MEXIC N NATIONALS

MEXICO v UNlTED STATES OF AMERICA)

Facts of fhr C U S P rticle 36 o f f h e Vienna Convention nl Cunsulur Rela-tions ($24 April 1963.

Mexico's nhjci,tion to the United Staler objeu fiuns to jnri.~dicfion und admis-sibilidy Un ited Srates objections no pruscntud a r preliminary objec~ions-Arficle 79 of Rules of C ourt not pertinent in pprsent case.

Jurisdiction uj [he Court.First United Sta tes ohjeurion to jurisdiction on fen iiu n that Mexico s sub-

missrons invite the Court to ruie In ihe operation o f t h e Clnifecl Stu tes crirnlnaljustice system urisdicfion of Gourd o determine fhe nature urid extent ofobligations arlslng undcr Vtsnna Co nven fion nquiry into the uc~nductofcriminal proceedings in Un i ~ e d lates courts a tnutier belonging to the merits.

Second U t~ ite d tutus objecfion to jurisiiiutiun ontention hut thp jifirst.~uhtniaionu M e x i ~ o ' ~ ~emcjrirli i~ excluded from rhe Co urt's jurisdiutic~nMexico w e n d i n g an inrexprerafiun of tlre i n n u Convention whereby not onlythe absence o cmn~ulrir orijcatio n b u ~lso the arrest, &tention, triul and con-viction o i t6 ~ I I ~ U W I I Sere unlawful failing such not$carion nterpretaliono Vienna Cunvention a nlafter within the Court 's urisdiction.

Third U niled S ~ u l e ~bjection 1 jurisdicrion onr~ntdnn hot Mexico ' ssubmissions on rerne dic~ u beyond I he Co ur t's jirrisdirtion zcrisdicfion of

Court to consider fhe y ~ et i ~ ) n lf remedies uestion whether or how far [ heCo urt rrray order tho requested rem edie s mat ter belonging l u tfi e rnerits.



Fourth United Staler objection to jurisdiction ontention that the Courtlacks jurisdiction to determine whether or not c on ,~u lur utificalion is a hr~man

right ueslion of inlerpretat ion of Vienna Co n ven fion.

Admissibility of Me xico 's claims.Firs1 United Sta tes objection to udmissihility ofitentiu n that M exic o's

submissions on remedies seek IU have he Court function us a court o f criminalappeal uestion belonging to the merits.

Second Uni ed Stat es objection uilmissibiIi~y onlencion #hu t Mexico'scluims tu exercise its right o j diplam utic protection are irsadmissible on ground7

that local rem edim have nut been exha usted nferdependence in the presencase oJ rights of the Stute and of individual rights M exico r~ qu es tin g heCourr do rule on the violation of rights which i l suffered both directly undthrough the vinlufion of individual rights o y its nationals uty to exhaustloca rem edie s does not a pply t o such a reque.5 t.

Third United Stu tes objec ion lo admissibility Co ntent on thut cerluinM exlc an nurionals also have Uniled Sta tes nu fio na lity uestjon belunging u

the m erits.Fourth United Stat es ohjecrion fa admissibility (~ ntc nti un kat Mexico

had actual knowledge o f u breuuh bur failed to bring .wch breach to the altention

o the United Sta tes or did su o nly after considerahie delay o conlention inthe present m s e oj'a ny prejudice caused by such delay o implied tlruiver by

M e ~ i c o f its rights.Fjfth United States ohjecrir~n o admissibil i fy Conren ~ion hat Mexico

invok es standards that ir doe3 nut fo llow in i1.r own practice atu re oJ Vicn nnConvenl iun preclurles such an uvgiimenr.

Article 36, paragruph exican natio nality n J4 2 individuals concerned

United States has no6 proved i1.7 contention tltat .r me were also UnitedS fa le s nacionuis.Article 36, purrrgruph b) onsular irafimnotion uty to provide cun-

sular inform ation s soon a s arresding authoriries rculize f ha t arrested person isa foreign naliun al, or have ground7 for so believing ro vision o consularin orm atio n in parallel wi6h reading of "M ira nd a righrs" ond dent inn thatseven individuals srated ut rhe dime of arrert rhat they were United Slatesnation als nturpre tution o f phrase wi6hout delay" iolalion by UnitedStales oJ the obligation lo provide consulur informa tion in 1 cslses.

Consular nod~J?caliun iola tion by Uniled Stutes o f the obligalinn u j con-sular not$cation in 49 ciases.

Article 6 parugruph a) and c) nrerrrlured nature oJ the three sub

purugraphx of paragraph iolation by United States of the obligation foenable Mexican cunsular off icers to c o m m u n i c u ~ ~ith, have access to and visittheir nationcrls in 49 cases Violation by United State s of I ~ Ebligation to



enable Mexicun cunmlar ofjccrs to arrange fur legal represendation of their

nationals in 34 cases.

Article 36, paragraph 2 Procedural d+uIt rule ossibilify ofju dic ialrune dies still open in 49 msec iolation y U nited S ~ a t e . ~f it obligations

under Article 36, paragraph 2, in three cases.

Legal consequences of tl e breuch.Question of nd eq ua ~e epuratiun for violations o j Article 6 eview and

reconsiderrrtion by United State s c o w ls of convictions and sentences of the

Me xicun nationals hoice of means Ig t to United Sla tes eview andreconsideration to he curried out by taking account of violation o Vienna Con-vention r ights Pm ce du m i default rule.

Judiciat process suiled t o fhc tusk of review and reconsidewiiun lemencyprocess, as currently pruciiscd within the United States criminal juslice sysrem,nod ru fjci en t in dzsev ro serve as app ro pr ia t~means n j review and reconsidera-tion ppropriure cl rm ~ n cy rocedures can .~upplemen tudicial review andreconsiderut ion.

Mexico revuesling cessation of wrongj'ul u i I und guarantees nd assurunLesclj nun-repetition o evidence to e.~tab lish regular and con tinulng pol tern

oJ breuchcs by United S t a m of Article6 u

Vienna Convention Mc usuresluken by Un ited S6ale.T to comp ly w itif its obliga tions ut~durAriiule 36, para-graph 1 ommitrvient unde rtaken by Uniled ~a f e so ensure impIementalinnof ils ob li ~a tio ns nder that provirion.

No a contr rio argument can be madc in respect of the Court J/inding s in thcpresent udgn~enl oncerning Mexican nalionol.r.

Unite d Sd ares ohliga ions declared i~ Jud gm m r replace tho se ar islng jrom

Prr>visionalMeasures Order 45February 2003 n the fhree cases where theUnited S fa tc s violated its oh1igurion.s under A rl ic I~36, purograph 2, il m ust findan appropriutc renledj having h nulure of review and recnnsiderulion uccord-ing to the criteria indicated in ihe Judgrnenl.

JUDGMENT

Present: President SHI Vice-Presidenl RANJEVA;u dg es G U I L L A U M E ,OROMA

V E R E S H C H F I ' I N ,I C G I N S , ARRA-ARANGUKENWIJMANS EZEK

A].-KIIASAWWEHU E R G E ~ H A I . ,LAKAUYWADA OMKAJudge adh0c SEPULVEDARegistrrzr C OU VK EU R.

n the case on erning Avena nd othcr Mexican nationals



th e U n ~ t e dMexican States,represented by

H.E. Mr. Ju an Manue l Gbrnez-Robledo, Ambassador, former Legal Adviser,Ministry of Foreign Affairs, Mexico City,

as A gent;

H E Mr. Santiago Oriate, Ambassador of Mexico to the Kingdom of thcNetherlands,

as Agent (until 12 February 2004 ;

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

City,Ms Maria dei Refugio Gonzalez Domingucz, Chief, Legal Co-ordinationUnit, Ministry of Foreign Affairs, Mcxico City,

as Agents (from 2 March 2004);

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

as Agent (from 17 March 2004 ;

Mr. Pierre-Maric Dupuy, Professor of Public lnternational Law at theUniversity of Paris (Pantheon-Assas) and a t the Europ ean UniversityInstitute, Florence,

Mr. Donald Francis Donovan, Attorney a t Law, D ~b cv ois e Plimpton,New York,

M s Sandra L. Babcock, Attorney at Law, Diractor of the Mexican CapitalLegal Assistance Programme,

Mr. Carlos Bernal, dtt orn cy at Law, Noriega y Escobedo and Chairman oft h e Commission on International Law at the Mcxican Bar Association,Mexico City,s Katherine Birmingham Wilmore, Attorney at Law, ekvoise

Plimpton, London,Mr. Dietmar W. Prager, Attorne y at Law, Debevoise Plimp ton, New

York,M s Socori-o Flores Liera, Chief of Staff, Under-Secretariat for G lob al Amairs:

and H u m an Rights, Ministry of Foreign AfFdirs, Mcxico City,

MI .ictor Manuel Uribe Avida, Head of the International Litigation Scc-tion, Legal A dviser s Office Ministry of Foreign Affairs, Mexico City,

as Counsellors and Advocates;

Mr. Erasmo A. L ir a Cabrera , Head of the International Law Section, LegalAdviser s Office, Min istry of F oreign Affairs, M exico City,

M s Natalie Klein, Attorney a t Law, Dehvoise Pl impton, Ncw York,M s Catherine Amirfar, Attorney at Law, Debevoise Br Plimpton, New Yo rk,

Mr. Thomas Bollyky, Attorney at Law, Debevoise Plimpton, Ncw York,M s Cristina Hoss Research Fellow at the Max Planck Institute for Com

parativc Public Law an d International Law, Heidelberg,Mr. Mark Warren, International Law Researcher, Ottawa,

as Advisers;



Mr. Michel L Enfan t, Dcbevoise Plitnpton, Paris

as Assistant,

un

the United States of America,

represented y

The Honourable Wtlliam H . Taft IV, Legal Adviser, United Statcs Dcpart-ment of State,

as Agent

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

as Co-Agent ;

M s Catherine W. Brown, Assisranl Legal Adviscr For Consular Affairs,United States Department of State,

Mr. D. Stephen Malhias, Assistant Lcgal Adviscr for U n ~ te d ations Affairs,United Slates Department of Statc,

Mr. Patrick F. Philbin, Associate Dcputy Attorney General, United SlatesDepartment of Justice,

Mr. John Byron Sandage, Attorney-Adviser for United Nations AtTairs,United States Department of Slate,

Mr. Tho ma s W eigcnd, Professor of Law and D irector of the institute of For-

eign and International Criminal Law, University of Cologne,M s Elisabeth Zoller, Professor of Public Law Univcrsity of Paris I (Pan-thkon-Assas),

as Counsel and Advocates;

Mr. J acob Ka tz Coga n, Attorney-Adviser for United Nations AM airs, UnitedStates Department of Slate,

M s Sara Criscitelli, Member of the Bar of thc Statc of New YorkMr. Rob ert J. Erickson, Principal Dep uty Ch ief, Criminal App cllatc Section,

Uniied States Dcpartmcnt of Justtce,Mr. Noel J . Francisco, Ocputy Assistant Attorney General, Office of Legal

Counsel, Unlted States Department of Justice,

M r. Stevcn Hill, Attorney-Adviser for Economic an d Business Affairs, U nitedStates Department of Spate

Mr. Clifton M . Johnson, Legal Counsellor, United States Embassy hc

Hague,M r. David A . Kaye, Deputy Legal Counsellor, Unitcd States Embassy, TheHague

Mr. Petcr W . Mason, Attorney-Adviser fo r Consu lar AfFdirs, United StatesDepartment of State,

as Counsel;

Ms Barbara Barrett-Spencer, United States Department of Statc,M s Mariannc Hata, United States Departmen1 of Stale,Ms Cecile Jouglet, United States Embassy, Paris

s Joanne Nel l~ga n,Untted Statcs Department of State,M s Laura Rornains, United States Embassy, The Hague

as Administrative Staff,



composed as above,

after deliberation,

delivers the following Judgment:

t . O n 9 January 2003 the United M exican State s (hereinafter referred to asMexico ) filed in the Registry of the Co ur t an App lication in stitutin g proceed-

ings against the United States of America (hereinafter referred to as theUnited States ) or violations o f the Vienna Convention o n Con sular Rela-

tions of 24 April 1963 {hereinafter referred to a s the Vienna C onven tion )allegedly committed by the United Slates.

In its Application, Mexico based the jurisdiction of the C ou rt On Article 36,paragraph 1 of the Statute of the Co urt and on Article of the Op tion al Pro -tocol concerning the Compulsory Settlement of Disputes, which accompaniesthe Vienna Convention (hereinafter referred to as the Option al Protocol ).

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application wasforthwith communicated to the Government of the United States; and, inaccordance with paragraph 3 o tha t Article, all States entitled to appe ar beforethe Court were notified of the Application.

3 . On 9 January 2003 the day on which the Application was filed, the Mexi-can G overnment also fled in the R egistry of the Cou rt a request for ihe indica-tion of provisional measures based o n A rticle 41 of he Statute an d 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 Am erica shall, take all mcasures necessary t oensurc that Mr. CCsar Roberto Ficrro Reyna , M r . Roberto MorenoRamos and Mr. Osvaldo T orres A guilera rc no t executed pendingfin-a1 udgment in these proceedings;

b ) The Government of the United States of America shall inform theCourt of all measures taken in implcm~nta t ionof this Order.

It furth er decided th at, until the Co urt ha s rendered its final judgm ent, it shallremain seised of he matters whi h formed the subject of that Order.In a letter of 2 November 2003 the Agcnt of the United Statcs advised the

Co urt tha t the United States had informed the relevant state authorities ofMexico's application ; that, sincc the Order of February 2003, the UnitedSlatcs had obtained from them information abou t the status or the fifty-fourcases, including the three cases identified in paragraph 59 (I) (a) of thatOrder ; and that the United States could confirm that none of the namedindividuals [had] been executed .4. In accordance with Article 43 of the Rules o f Co urt, the Registrar sent the

notification referred to in Article 63, paragraph 1, of the Statute to all States

parties t o the Vienna Convention or to th at Convention and the Optional Pro-tocol.5. By an Order of 5 February 2003, the Co urt, taking account of thc vicws of

thc Parties, fixed 6 June 2903 and 6 October 2003, respectively, as the time-limits for the filing of a Memorial y Mexico and of a Counfer-Memorial bythe United States.



6. By an Order of 22 May 2003 the President of the Court, on the jointrequcst of the Agents of the two Parties, exiendcd to 20 June 2003 the timc-limit for the filing of the M em oria l; the time-limit fo r the filing of the Countcr-Mcmorial was extended, by he same Order, to 3 November 2003.

By a letter dated 20 Jun e 2003 an d received in the R eg i~ try n the same day

the Agent of Mcxico informed the Court that Mexico was unablc for techn~calreasons to file the original of its Memorial on time and accordingly asked theCourt to dec ~d e, nder Articlc 44, paragraph 3, of thc Rules of Court that thcfiling of the Memoriak aftcr the expiration o f lhe time-Iimit fixed therefo r wouldbe considered as valid; that letter w as accompanied by two eleckronic cop ies of

the Memorial and its annexes. Mexico having filed the original of t hc Memo r~a lon 23 June 2003 and the United Slatcs having informed the Court, by a letter

of 4 June 2003, that ~ had no commcnt to make on the matter the Courtdecided on 5 Ju ne 2003 that the fil ing would be considered as valid.

7. In a lettcr of 14 October 2003 the Agent of Mexico expressed h ~ s ov-ernment s wish t o am end its submissions in order to include therein the casesof two Mexican nationals, Mr. Victor Miranda Guerrcro and Mr. TonatihuAguilar S aucedo, who had been sentenced to death, aftcr the filing of Mexico sMemorial, as a result of criminal proceedings in which, according to Mexico,thc United S tates had failed to comp ly wilh its obligations under Articlc 36 ofthe Vienna Convention.

In a lerter of 2 Novem ber 2003, unde r cover of which the Unitcd States tiled

its Countcr-Memorial within the limc-limit prescribed, rhe Agent of the UnitedStates informed the Co urt that his Governm ent objected to the am endmen t ofMexico s submissions, o n the grounds that the requcst was late, that Mexicohad submitted no evidence concerning th alleged facts and that there was notenou gh time for the United States to inv es~ iga te hcrn.

In a letter received in the Registry on 28 Navcm ber 2003 Mexico respondedto th e United S tates objection and a t the same time amcnded its submissions soas to withdraw its request for relief in the cases of two Mexican nationals men-tioned in the Mem orial, Mr. Enrique Zamb rano Garibi and Mr. Pcdro H ernin-dcz Alberto, h a v i n g comc to the conclusion tha t the former had dual Mexicanan d U nited States nationality and tha t the latter had been Informed o f his right

of cons ular notification prior to interrogation.O n December 2903, the Rcgistrar informed Mexico and the United Statcs

that, in orde r to ensure thc pruccdural equality of thc Parties, the Court haddecidcd not to authorize the am endm ent of Mcxico s submissions so as toinclude the two additional Mexican nationals mentioned above. He alsoinformed the Parties that the Court had taken note thar the United States hadmade no objection to the withdrawal by Mexico o i ~ sequest for relief in thecases o Mr. Zarnbrano and Mr. Wernkndez.

8. On 28 November 2903 and 2 December 2903 Mexico filed various docu-m ent s which it wished to produce in acc ordan ce with A rticle 56 of thc Rules ofCourt . By letters dated 2 December 2003 and December 2003, the Agent of

the U nited Stales informed the C ourt that his Governm ent did not object to theproduction of these new do cuments and th at ~t lntendcd to exercise ~ t sight tocomment upon these documents and to submit documents in support of itscomments, pursuant to paragraph 3 of that Article. By letters dated 9 Dccem-ber 2003, the Registrar infonned the Parties that the Court had takcn note that



the United Slates had no objection to the production of these documents and

that accordingly counsel would be free to refer to them in the course of thehearings. On 1 Deccmber 2003 the Agent of the United States filed the com-ments of his Governm ent on the new docu ments produced by Mexico, togetherwith a number of documents in support of those comments.

9. Since the Cou rt included u pon thc Bench no judge of Mexican national-ity, Mexico availed itself of ts right under Article 31 paragraph 2, of theSlatutc to choose a judge ad hoc to sit in the case: it chose Mr. BernardoScp6lveda.

LO Pursuant to Article 53 paragraph 2, of i ts Rules, the C ourt, h iving con -sulted the Parties, decided that copies of the pleadings and docum ents annexedwould be made accessible ta the public o n the opening of the oral proceedings.

1 Public sit t~ ng swere held bctween 15 and 14 December 2003, a t which theCou rt hcard the oral arguments and replies of :

For Mexico: H.E. Mr. Juan Manuel Cbmez-Robledo,M s Sandra L. Babcock,Mr. Victor Manuel Uribc Avifia,Mr. Do nald Francis Donovan,Ms Katherine Birmingham Wilmore,H.E. M r. Sant iago Okate,Ms Socorro Florcs Liera,Mr. Carlos Bcrnal,

Mr. Dietmar W. PragerMr. Pierre-Marie Dupuy.

Fur he nited Sdales T h e Ho nou rable W illiam H . Taft , IV,

M s Elisibcth Zoller,Mr. Patrick F. Philbln,Mr John Byron Sandage,s Catherine W . Brown,

Mr. D. Stephen Mathias,Mr. James H. Thessin,Mr. Th om as W eigend.

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

The Government of the United Mexican States therefore asks theCo urt to adjudge and declare

1 ) that the United Stales, in arresting, detain ing, trying, convicting, andsentencing the 54 Mcxican nationats on death row described in thisAp plication, violated its internationa l legal obligations lo Mexico, inits own right an d in the exercise o r its right of consular protection ofits nationals, as provided by Articles and 36 respectively of the

Vienna Convention;

2) that Mexico is therefore entitled to restitutio in integrum;3) that the U n ~ t e d tatcs is under an interna tional legal obligation no t to



apply the doctrine of procedural default, or any other doctrine of

its municipal law, tn precludc the exercise o r thc rights afforded byArticle 6 of the Vienna Conv ention;

4) that the United States i s undcr an internatianal lcgal obltgation tocarry out in conformity with thc foregoing international legal obIiga-tions any future detention of or criminal proceedings against the 54Mexican nationals on death row or any other Mcxican national in itsterritory, whether by a constituent, legi~ lative, xecutive, judicial orother power, whether that power holds a superlor or a subordinateposition in thc organization of thc United States, and whether thatpower's functions are international or internal in character;

(5) that the right to consular notification under the V ienna Convention IS

a human righl;

and that, pursuant to the foregoing international lcgal obligations,

(I) the U nited States must restore the s atu.s quu anle , that is, re-es~ablishthe situation that ex~ sred eforc the detentian of, proce ed~ ngs gainst,and convictions and sentences of, Mexico's nationals in violatioo ofthe Unitcd States international legal obligations;

(2) thc United States must take the steps necessary and suficicnt toensure that the provisions of its municipal law enable full cffect to begiven to the purposcs for which the rights afforded by Article 6 areintended ;

3 ) the United States must take he stcps necessary and su fi ci en ~o esrab-I~sh rne n~ngful cmcdy at l a w or violations orthe nghts afforded toMexico an d its nationals by Article 6 of t hc V~ennaConvention,including by bamng the imposition, as a matter of rn~tn~cipalaw, ofany procedural penalty for the failure timely to raisc a claim or ;dcfcnce based on thc V ~e nn a onvention where competent authoritieso t h c U n ~ t e dSlates havc breached their obligation to advisc thenational of his or her rights under the Convention; and

4) the United States, in light of the pattcrn and practice of violations setforth in this Application, musl provide Mexico a h l l guarantee of Ihenon-repetition of the illegal acts.

13. In the course of the written procecdings, the following submissions wercpresented by the Parties:

n buhalf of the overnment of M~ r d c u

in the Memorial

For these reasons, the Governmcnt o Mexico rcspcctfully requeststhc Court to adjudgc and declare

(1) tha t the United S tates, in arresting, deta ining, trying, convicting, an dsentencing the fifty-four Mexican nationals on death row described in



Mexico s Application an d this Memorial violatcd its international

legal obligations to Mexico, in its own right and in the exerciseof ~ t sight of diploma tic protection of its nationals, a s provided byArticle 36 of the Vienna C onven tion;

(2) that the obligation in Article 36 (1) of the Vienna Convention requircsnotification before the competent authorities of the rece~vingStatcinterrogate thc foreign national or take any other action potentiallydetrimental to his or her rights;

3) that the United States, in applying the doctrinc of procedu ral default,o r any other doctrine of its municipal law, to preclude khe exercise andrcview of the rights afforded by Articlc 36 of the Vienna Convention,violated its international iegal obligations to Mexico, in its own right

and in the excrcise of its righr of diplomatic, protection of its nationals ,as provided by Article 36 of the Vienna Convention; and

4) that thc United States is under an international legal obligation tocarry out in conformity with the Foregoing international legal obliga-tions any future detention of o r criminal procccdings against thc fifty-four Mexican nationals on dcath row an d any o ther Mexican nationalin r s territo ry, whether by a con stituen t, legislative, executivc, ju di c~ alor other power, whether that power holds a superior or a subordinateposition in the organization o the United States, and whcther that

powcr s functions a re intcrnational o r intcrnal In character;

and that, pursuant lo the foregoing international legal obligations,

(1) Mcx~cos entitled to resli ufir~n inlegrum and the United States thcre-for is under an obligation to restore the st rus quo ante that is re-establish the situation that cxisted al th tirnc f the detention andprior to the intcrrogation of, proceedings against, and convichon s andsentences of Mexico s nation als in violation of the U nited S tatcsintcrnatianal legal obiigations, specificatly by, among other things,

a] vacating the convictions of the fifty-four Mexican nationals;

A) vacating the sentences of th fifty-four Mexican nationals;

c) excluding any subse quent pro ceedings against thc fifty-four Mexi-can nationals a n y statemen ts and confessions obtained from themprior to notification of their rights to consular notification andacccss

dl preventing thc application of an y procedural penalty for a Mcxi-

can national s failure timcly to raise a claim o r defencx b sed onth Vienna Convention where competent authorities of the UnitedStates have breached their obligation to advise the national of hisrights under the Convention;



e ) preventing the application of any municipal law doctrine or

judicial holding that prevents a court in the United States fromproviding a remedy, ~ncluding hc rehef to which this Courtholds that Mcxico 1s entitled hcre, to a Mexican national whoseArticle 36 rights have been violated ; and

f) preventing thc application o f any nlunlcipal law doctrine or judi-cial holding ahat requires an individualized showing of prejudiceas a prercyuisitc to relief for the violations of Articlc 6;

2) the United States, in light of the regular and continuou s violations setforth in Mexico's AppIication and Memorial, is under an obligation to

lake a ll leg~slative, xecutive, an d judicial steps necessary to:

( u ] ensure that the regular and continuing violations o f the Article 36consular notification, access, and assistance rights of Mexico andits nationals ceasc;

h) guarantee that its competent authoritics, of federal, state, andlocal jurisdiction, ma intain regular and ro u t~ n e ornpliancc withthcir Article 36 obligations;

c) cnsure that its judicial authorities cease applying, and guaranteethat in the rururc they will not apply:

i) any pruccdural penalty for a Mexican national's failuretimely to raise a claim Or defcnce based on the Vienna Con-vention where competent authorities of thc United Stateshave breached t h e ~ r bligation to advise the national of hisr her rights under thc Convention;

ii) any mun ~cipalaw doctrine o r judicial holding th t prcventsa court in the United tates from providing a rcmedy,including the relief to w hich t h ~ s ourt holds that Mexico isentttled here, to a Mexican national whose Article 36 rights

have een viulatcd; and

(111) ny municipal law doclrine o r judicial holding that requiresan individualized showing of prejudice as a prerequisite torelief for the Vienna Convention violations shown here.

On hehulf o the Gov~rnrnen the Un i~od tates,

in the C ounter-Memorial

On the basis of thc facts and arguments set out above the Governmentof the Unitcd States of Amcrica requests that the Court adjudge anddeclare t ha t the claims of the United Mexican States are dismisscd.

14 At the oraI proceedings, the following subm issions were presented by theParties:



nbehalf o the Government of Mexico

The Government of exico respectfully requests the Court to adjudgeand declare

1) tha t th e U nited Skates of Am erica, In arresting, de taining, trying, con-victing, and sentencing th 52 Mexican nationals on death rowdescribed in Mexico's Memorial, violated i t s international legalobligations to Mexico, in its own right and in the exercise of itsright to diplomatic proteclion of its nationals, by failing to inform,without delay, the 52 Mexican nationals after their arrest of theirright to consular nolification and access under Article 36 (1) (h)of the Vienna Convention on Consular Relations, and by deprivingMexico of i u right t o provide consular protection and the 5

nationals' right to receive such protection as Mexico would provideunder A rticle 36 I ) a) and (c) of the Convention;

(2) th at the obligation in Articlc 6 1) of the Vienna Convention requiresnotification of consular rights nd a reasonable opportunity for con-sular access before the competent authorities of the receiving Statetak e any action potentially detrimental to Ihe foreign national's rights;

(3) that the United States of America violated its obligations underArticle 5 2) of the Vienna Convention by failing to provide mean-ingful and effective review and reconsideration of convictions andsentences impaired by a violation of Article 36 I ) ; by substitutingfor such review and reconsideration clemency proc cc d~ ng s; nd yapplying the 'procedural dcfault' doctrine and other municipal lawdoctrines tha t fail to atta ch legal significance to an Article 6 (1) vio-lation on its own tcrrns;

4) that pursuant to the injuries suffered by Mexico in its own right and

in the exercise of diplomatic protection of its nationals, Mexico isentitled to Full reparation for those injuries in the form of restitutioin in tugrum;

5) that this restitution consists of the obligation ro restore the stocus quo

ante by annulling o r otherwise depriving of full force or effect the con-victions and sentences of all 52 Mexican nationals:

6) that this restitution also includes the obligation to ta ke all measuresnecessary to ensure that a prior violation of Article 36 shall no t affectthe subsequent proceedings;

(7) that to the extent that ny of the 52 convictions or sentences are not

annulled, the United States shall provide, by means of its own choos-ing, meaningful an d effective review and reconsideration of the convic-tions and sentences of the 5 nationals, and that this obligation cannotbe satisfied by means of clemency proceedings or if any municipal lawrule or doctrinc inconsistent with paragraph (3) above is applied an d



8) that the United States of America shall ccasc its violations of

Article 36 of the Vienna Convention with regard to Mexicond

its52 nationals and shall provide a ppro priate guarantees and assurancesthat it shall take measures sufficient to achleve increased compliancewith Article 36 1 j and to ensure compliance w~thArticle 36 (21.

On behuIf of the Governnwnt of the United States

On thc basis of the facts and arguments made by the United States tnits Counter-Memorial and in these proceedings, the Government of theUnited States of Amerlca requests that the Co urt, taking info account that

the United States has conformed its conducl o this Co urt's Judgrncnt in

thc LaCrclnd Case (Germany v nited States of dmer icu , not only withrespect to German nationals but, consistent with the Declaralion of thePresident r the Court in that case, lo all detained fore~gnnationals,adjudge and declare that the claims of the Unitcd Mexican States are dis-missed.

15. The present proceedings have been broug ht by Mexico agains t the

United States on t he basi s of the Vienna Conve nt ion , an d of th e Opt iona lPro toco l providing for thc jurisdict ion o f thc Co ur t over d i sputes a r i s ingo u t of the interpretat ion o r appl icat ion of t he Conven t i on. Mex i co an dthe United States are, an d were at al l relevant t imes, parl ie s to the ViennaConvention an d to the Opt ional Pro tocol . Mexico claims tha t the UnitedStates has comm i t ted breaches of the Vienna Convent ion in relat ion lot he t r ea tment of a number of Mexican na t ional s who have been t r i ed ,convicted and sentenced to d eath in cr iminal proceedings in the Uni t edStates. The original claim related to 54 such persons, but as a result of

subscqucnt ad jus tment s to i ts claim made b y Mexico (see paragraph 7

above) , only 52 individual cascs ar e involved, Th ese cr iminal p roceedingshave been taking place in nine different Statcs of the Uni ted States ,namely Cal i fornia (28 cases), Texas (15 cases), Illinois (three cases ,Arizona (one case) , Arkansas (one case) , Nevada (one case) , Ohio

(one case), Okl ahoma ( one case) and Or egon one case), between 1979

an d the present .

16. F or convcniencc, thc namcs of t he 52 individuals , a nd the num be rsby which their c ases will be referred to, are set ou t below:

1. Car lo s Avena Gui ll en2. Hkcto r J uan y a h3 Vicente B enavides Figueroa4, Cons t an t i no Car r e r a Mont enegr o5 Jorge Co nt reras Lbpez



25 AVENA A N D O T I ~ E R (JUDGMENT)

6. Daniel Covarrubias Sinchez

7 . Marcos Esquivel Barrera8 . Rubin bmez Pkrez9. Jaime Armando Hoyos10 dr tu ro Juhrez Suhrez

1 Juan Manuel Lopez12. Josi Lupercio Casares13. Luis Alberto Maciel Hernandez14 Abelino Manriquez Jaquez15. Omar Fuentes Martinez (a.k.a. Luis Aviles de la Cruz)16. Miguel Angel Martinez Sinche z

17. Martin Mendoza Garcia18 Sergio Ochoa Tamayo19. Enrique Parra Duefias

20. Juan de Dios Rarnirez Villa21, Magdaleno Salazar22 Ram 6n Salcido Bojhrquez23. Juan Ramon SAnchez Ramirez24. Ignacio Fafoya Arriola25. Alfredo Valdez Reyes26 Eduardo David Vargas27 Tomis Verano Cruz28. [Case withdrawn]29. Samuel Zamudio JirnCnez30 Juan Carlos Alvarez Banda3 1 CSsar Roberto Fierro Reyna32 HCctor Garcia Torres

33. Tgnacio GSmez34 Ramiro Hernandez Llanas35. Ramiro Rubl lbarra36. Humberto Leal Garcia37. Virgilio Maldonado

38. Jose mcsto Medcllin Rojas39. Roberto Moreno Ramos40 Daniel Angel Plata Estrada41 RubCn Ramirez Crirdenas42 FClix Rocha Diaz

43 Oswaldo Regalado Soriano44 Edgar Arias Tamayo45 Juan Caballero H ernindez46 Mario Flores Urbin47 Gabriel Solache Romero

48. Martin Raul Fong Soto49 Rafael Camargo Ojeda50. [Case withdrawn]5 1 Carlos Renk Pkrez Gutikrrez52 Josi: Trinidad Loza



53. Osvaldo Netzahualctiyotl Torres Aguilera

54. Horacio Alberto Reyes Carnarena

17 The provisions of the Vienna Con vention of which Mexico allegcsviolations are contained In Article 36. Paragraphs 1 and 2 of this Articlearc set out respectively in paragraphs 50 and 108 below. Article 36relates, accord ing to its title, to Com munication an d contact withnationals of the sending State . Paragraph b ) of that Article providesthat if a national o f that Stale is arrested o r committed to prison o r tocustody pending trial or is detained in any oth er 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 author ities of the receivingState shall inform the person concerned without delay of his rights inthis respect. Mexico claims that in the present case these provisions werenot complied with by the United Statcs authorities in respcct of the 52Mexican nationa ls the subject of its claims. As a result, the U nited Stateshas according lo M cxico comm itted breaches of paragraph h ) more-over, Mexico claims, for reasons to be explained below (see parag raph s 98et seq j, that the United Sta tes is also in breach of paragraph a) andc) and of paragraph 2 of Article 36 in view of the relationship of

these provisions with paragraph 1 b ) .

18. As regards the terminology cmployed to designate thc obligationsincumbent upon the receiving State under Article 36, paragraph 1 b ) ,the Co urt notes th at thc Parlies have: used the terms inform an d

notify in differing senses. F o r the sak e of clarity, the Co ur t, whenspeaking in its ow name in the present Judgment, will use the word

inform when referring to an individual being made aware of his rightsunder t ha t subp aragrap h and the word notify when referring to thegiving of notice to the consular post.

19. The underlying facts alleged by Mexico may be brief y described as

foilows som e ar e conceded by the United States, and some disputed.Mexico states th at all the individuals the subject of its claims were M exi-can nationals at the time of their arrest. It further contends that theUnited States authorities that arrested and interrogated these individualshad sufficient information at their disposal to be aware of the foreignnationa lity of tho se individuals. According to Mexico's account, in 50 ofthe specified cases, Mexican nationals were never informed by the com-petent United States authorities of their rights under Article 36, para-graph b ) , of the Vienna Co nvention and, in the two remaining cases,such inform ation was no t provided witho ut delay , as required by thatprovision. Mexico has indicated that in 29 o r t he 52 cases its consularauthorities learned of the detention of the Mexican nationals only afterdeath sentences had been handed down. In the 23 remaining cases,Mexico contends that it Iearned of the cases through means other than

notification to the consular post by the competent United S tates autho ri-tics under Article 36, paragraph bj. I t explains that in five cases this



was too late to affect the trials, that in 15 cases the defendants had

already made incriminating statements, and that it became aware of theother three cases only after considerable delay.

20. OF the 52 cases referred to in M exico s final submissions, 49 arecurren tly a t different stages of the proceedings before United States judi-cial authorities at state or federal level, and in three cases, those ofMr. Fierro (case No 31 , Mr. Mo reno (case No. 39) and M r. Torres (caseNo. 531 judicial remedies within the United States have already beenexhausted. The Court has been informed of the variety of types of pro-

ceedings and forms of relief available in the criminal justice systems ofthe United States, which can differ from state to state. In very generalterms, and according to the description offered by both Parties in theirpleadings, it app ears that the 52 cases may be classified into three catego-ries: 24 cases which are currently in direct appeal; 25 cases in whichmeans of direct appeal have been exhausted, but post-conviction reliefhabeas corpus), either at slate o r a t federal level, is still available; and

three cases in which no judicial remedies remain. The Court also notesthat, in at least 33 cases, the alleged breach of the Vienna Conventionwas raised y the defendant either during pre-trial, at trial, on appeal or

in haheas corpus proceedings, and that some of these claims were dis-missed on procedural or su bstantive grounds and othe rs are still pending.T o date, in none of the 52 cases have the defendants had recourse to theclemency process.

1 On 9 January 2003, the day on which Mexico filed its Applica tionand a requesl for the indication o f provisional measures, all 52 individ-uals the subject of the claims were on de ath row. However, two days laterthe Governor of the State of Illinois, exercising his power of clemcncyreview, commuted the sentences of a11 convicted individuals awaitingexecution in that State, including those of three individuals named inMexico s Application (M r. Cab allero (case No . 45 , Mr. Flores (caseNo. 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 ofthese three individuals, but that its Application remained unchanged. Inthe Order of February 2003, mentioned in paragrap h above, on therequest by Mexico for the indication of provisional measures, the Courtconsidered that it was apparent from the information before il that thethree M exican nationals named in the Application who had exhausted alljudicial remedies in the United States (see paragraph 20 above) were a trisk of execution in the following mon ths, o r even weeks. Consequently,it ordered by way oC provisional measure that t he United States take allmeasures necessary to ensure th at these individuals would no t be executed



pending fi nd judgment in these proceedings. The Co urt notes that, at the

date of the present Judgment, thcse three individuals havenot

beenexecuted, but further notes with great concern that, by an Order datedMarch 2004, the Oklahoma Court of Criminal Appeals has sct an

execution date o 8 May 2004 for Mr. Torres.

T H EM E X I C A NR ~ E C T I O NO THE U N I T E DTATES W E C T ~ O N S0

J U KIS D I T ION ND A ~ M T S S ~ B I L I T Y

22. As noted above, the present dispute has been brought bel orc the

Court by Mexico o the basis of' the Vienna Convention and the OptionalProtocol to that Convention. Article of the Op tional Protoco l 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 bc broughtbefore the Courl by a written application made by any party to thedispute being a Party to the present Protocol.

23. The United Statcs has presented a number of objections to thejurisdiction of the Court, as well as a number of objections to thc

admissibility of the claims advanced by Mexico. It is however the contcn-lion of Mexico that all the objections raised by the United Statcs areinadmissible as having bccn raised after the expiration of the time-timitlaid down by the Rules of Cou rt. Mexico draws attention to the text ofArticle 79, par agraph 1, of the Rules of Co ur l as amended in 2000, whichprovides that

Any objection by the respondent to the jurisdiction o f the Co ur to r to the adm issibility of the application , o r other objection the deci-sion upon which is requested before a n y furlhcr proceedings on themerits, shall be made in writing as soon as possible, and not later

than threc months after the delivery of the Memorial.Thc previous text of this paragraph rcquired objections to be madewithin the time-limit fixed for delivery o f the Counter-Memo rial . In t hc

prcscnl case the Memorial of Mexico was filed on 23 June 2003; theobjections of the Unitcd States to jurisdiction and admissibility werepresented in its Co unter-M em oria l, filed on November 2003, m orethan four months later.

24. The United States has observed that, during the proceedings onthe request made by Mcxico For the indication of provisional measures inthis case, it specifically reserved its right t o make jurisdictional argu ments

at the appropriate stage, and that subsequently the Parties agreed thatthere should be a single round of pleadings. The Court would howeveremphasize that parties to cases before il can no t, by pu rpo rting to reservetheir rights to take some procedural action, exempt themselves from theapplication to such ction of the provisions of the Statute nd Rules of



Court (cf. Application of the Convenlion on he Prevention and Punish-ment r

the Crimeof

Genocide Bosaio and Fierzegovina v. Yugosluviu),Order of 13 Seplember 1993, I. C.J. Reports 1993, p. 338 , para. 28).

Th c Cou rt notes, however, tha t Articlc 79 of the Rules applies only topreliminary objections, as is indicated by the title of the subsection of theRules w hich i t constitutes. As the Court observed in the Lockcrbie cases,if it is to be covered by Article 79, an objection must possess a 'pre-

liminary' characlcr , and Paragraph 1 of Articlc 79 of the Rules of

Court characterizes as 'preliminary' an objection 'the decision uponwhich is requested before any further proceedings ' Quwlions c Infer-

pretalion and Applicalion of the 1 971 Montreal Conv~nliun rising ji om

the Acrid Incident t LockerBic Libyan Aroh Jarnahiriya v. UnitedKingdom) Libyan A r a b Jamahiriya v niled Stufes of Am erica), Pre-liminary O bjeclions, I . C.J . Repurls 1998 p. 26 para. 47; p. 131, para. 46 ;

and the effect of the t imely presentation of such an objection is that theproceedings on the merits are suspended (paragraph 5 or Article 79 . Anobjection that is not presented as a preliminary objection in accordancewith par agr ap h of Article 79 does not thereby become inadmissible.There are of course circumstances in which the party failing to put for-ward an objection t o jurisdiction might be held to h ave acquiesced injurisdiction Appeui Relaling to the Jurisdiction uf the ICAO Council,Judgment, I. C . Reporls 1972, p. 52, para. 13 . However, apart fromsuch 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 themcrits. That i s indeed what the Unitcd tates has done in this case; and,

for reasons to be indicated below, many of its objections are of such a

natur e that they would in any event probab ly have had to be heard alongwith the merits. Thc Court concludes that i t s h o d d not exclude fromconsideration the objections of the United States to jurisdiction andadmissibility by reason of the fact that they were not presented within

three m onths from the date of fiEing of the Memorial.

25. Th e United States has submitted fou r objections to the jurisdictionof the Court , and fiv to the admissibility of the claims of Mexico. Asnoted above, these have not been submitted as preliminary objectionsund er Article 74 of the Rules of Co urt ; and they are not o f such a natu rethat the Court would be required t o examine and dispose of all of them inlimine, before dealing with any aspect of the mcrits of the case. ome arcexpressed to be only addressed to certain claims; some ar e addressed toquestio ns of the remedies to be indicated if the Court fin s that breaches

of the Vienna Convention have been committed; and some are of such anature that they would have to be dealt with along with the merits. TheCourt will however now examine each of them in turn.



26. Th e United S tates con tend s tha t the Co urt lacks jurisdiction todecide many of Mexico's claims, inasmuch as Mexico's submissions inthe Memorial asked the Co ur t to decide questions which do not arise outof the interpretation or application of the V ienna Convention, an d w hichthc Uniled Slates has never agreed to submit to the Court.

27. By its first jurisdictional objection, the United States suggestedthat the Memorial is fundamentally addressed to the treatm ent of Mexi-can nationals in the federal and state criminal justice systems of the

United States, and the opera tion of the U nited States criminal justice sys-tem as a whole. It suggested that Mexico's invitation to t he ourt lomake what the United States regards as hr-reaching aiid unsustainablefindings concerning the United State s criminal justice systems would bean abuse of thc Court's jurisdiction. At the hearings, the United Statescontended that Mexico is asking the Court to interpret and apply thetreaty as if it were intended principally to govcrn the operation of a

State's criminal justicc system as it affects foreign nationals.

28. The C ou rt w ould recall tha t its jurisdiction in the present c se hasbeen invoked under the Vienna Convention and Optional Protocol todetermine the nature and extent r the obligations undertaken by theUnited Statcs toward s Mexico by becoming party to that Con vention. Ifand so Tar as t h e Court may find that the obligations accepted by theparties to t h e Vicnna Convention included commitments as to the con-duct of their municipat courts in relation to the nation als of oth er parties,then in order to ascertain whether there have been breaches of the Con-vention, hc Court must be able to examine the actions of those co urts inthe light of international law The Court is unable to uphold the conten-tion of the United States that, as matter of jurisdiction, it is debarredfrom enquiring into the conduct of criminal proceedings in United Statescourts. How far it may do so in the present case is a maller for the merits.T h e first objection of the United Statcs to jurisdiction can no t therefore beupheld.

29. The second jurisdictional objection presented by the United Stateswas addressed t o the first of th submissions presented by Mexico in itsMemorial (see paragraph 13 above). The United States pointed out thatArticle 36 of the Vienna Conv ention creates no obligations constrainingthe rights of the United States to arrest a foreign national ; and that



sirniiarly the detaining, trying, convicting and scnlencing of Mexican

nationals could not constitute breaches of Article 36, which merely laysdown obligations of notification, T h e United States deduced from thisthat the m atters raised in Mcxico's first submission are outside the j u r i s -

diction of the C ou rt 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 todjudge and declare:

That the United States of America, in arresting, detaining, try-ing, convicting, and sentencing the 52 Mexican nationals on deathrow described in Mexico's Memorial, violated its international legalobligations t Mexico, in its own right a nd in the exercise of its rightto diplomatic protection of its nationals, by failing to inform, with-ou t dclay, the 52 Mexican nationals after their arrest of their right loconsular notification and access under Article 36 I ) b ) of theVienna Convention on Consular Relations, and by depriving M exicoof its right to provide consular protection and ~ h c 2 nationals'right to receive such protection as Mexico would provide underArticle 36 1) u) and c ) of the Convention.

30 This issue is a question of interpretation of the ob ligations imposedby the Vienna Convention. It is true lhat the only obligation of thereceiving State toward a foreign national that is specifically enunciated byArticle 36, paragraph 1 (b), of he Vienna Convention is to inform such

foreign nationalof

his rights, when he is arrcsted or committedto

prison o r to custody pending trial o r is detained in a ny oth er m anner ;the text does not restrain the receiving Sla te from arresting, detaining,trying, convicting, and sentencing the foreign national, or limit itspower to do so I-lowever, as regards the detention , trial, conviction andsentence of its nationals, M exico argues that depriving a foreign nationalfacing criminal proceedings of con sular notification and assistance rendersthose proceedings fundamentally unfair. Mexico explains in this respecttha t

Consular notification constitutes a basic cornponcnt of due pro-cess y ensuring both the procedural equality of a foreign nationalin the criminal process and the enforcement of other fundamentaldue process guarantees to which that national is entitled ,



and that I t is therefore: an essenlial requirement for fair criminal pro-

ceedings against fbreign nalionals. In Mexico s contention, consularnotification has been widely recognized as fundamental due processright, and indeed, a hutwan right . On this basis it argues that the rightsof the detained Mexican nationals have been violated by the authoritiesof thc Unitcd Slales, and th at those nationals have been subjected tocriminal proceedings without the fairness and dignity to which each per-son is cntillcd . Conscquenlty, in the contention of Mexico, the integrityof these proceedings has been hopelessly undermined, their outcomesrendered irrevocably unjust . For Mexico to contend, on this basis, thatnot mcrcly the faiiurc to noliry, but the arrest, detention, trial and con-

viction of its nationals w ere unlawful is to argue in favour of a particularit~terpretation f the Vienna Convention. Such an interpretation may ormay not be confirmed on the merits, but is not excluded from the juris-diction conferred on the Court by the Optional Protocol lo thc VicnnaConvention. The second objection of the United Slales o jurisdictioncannot therefore be upheld.

71. The third objection by the United Statcs lo the jurisdiction of theCo urt refers to the first of the submissions in the Mexican M emorial con -cerning remedies. By that submission, which was confirmed in substancein the final submissions. Mexico claimed that

Mexico is cntitled to r st i lui io n integrum and t h e United Stateslhercfore is under an obligation lo restore the sr lus quo ante thatis rc-establish thc situation that existed at the t ime of the detentionand prior to the interrogation of, proceedings against, and convic-tions and sentences of, Mexico's nationals in violation of t he United

States' international legal obligations . .On that basis, Mexico went on in its first submission to invite the Cou rtto declare th t Ihe Unitcd States was bound to vacate the convictions andsentences of the Mexican nationals concerned, to exclude from any sub-sequent proceedings any statem ents an d confessions obtained rrom them,to prevent the app lication of any procedural penalty for failure to raisetimely defence on the basis of the Convention, and to prevent the appli-cation of any municipal law rule preventing courts in the United Statesfrom providing a rcmedy for the violation of Article 36 rights.

32 The United States objects that so to require specific acts y theUnited States in its municipal criminal justice systems would intrudedeeply into the independence of its courts; and that for the Court to



declare that the Un ited States is under a specific obligation to vacate con-

victions and sentences would be beyond its jurisdiction. Th e Court, theUnited S tates claims, has no jurisdiction to review approp rialeness ofsentences in criminal cases, an d even less to determ ine guilt or innocence,matters which only a co urt of criminal app eal could go in to.

33. For its part, Mexico points ou t th at the United States accepts thatthe Court has jurisdiction to interpret the Vienna Convention and to

determine the appropriate form of reparation under international law. InMexico's view, these tw considerations are sufficient to deltat the thirdobjection to jurisdiction of the United Sta tcs.

34. For the same reason as in respect of the second jurisdiclionalobjection, the Court is unable to uphold the contention o the UnitedStates that, even if thc Court were to find that breaches of the ViennaConvention have been committed by the United States of the kindalleged by Mex ico, it would still be with out jurisdiction to order resri utitl

in int grum as requested by Mexico. The Court would recall in thisregard, as it did in the Lu rund case, tha t, where jurisdiction cxists overa dispute on a particular matter, no separate basis for jurisdiction isrequired by the Court in order to consider the remedies a party hasrequested for the breach of thc obligation I.C.J. Reports 2001 p. 485

para. 48). Whether or h o w far the Co urt may order the remedy requestedby Mexico are matters to be determincd as part of the merits of the dis-pute. The third objection of the United States to jurisdiction can no ttherefore be upheld.

35. Thc Fourth and last jurisdictional objection of the United States is

tha t the C ourt lacks jurisdiction to determine whether o r no t consularnotification is a 'hum an right', o r to declare fundam ental requirements ofsubstantive or procedural due process . s noted abovc i t is on the basisof Mexico's contention that the right to consular notification has beenwidely recognized as a fundamental due process right, and indeed a

human right, that it argues that the rights of the detained Mexicannationals have been violated by the authorities of the United States, andthat they have been subjected t o criminal proceedings withou t the fair-ness and dignity to which each person is entitled . The Court observesthat Mexico has presented this argument as being a matter of inter-pretation of Article 36, paragraph 1 b ) , and therefore belonging tothe merits. The Court considers that this is indeed a question of inter-pretation O the Vienna Convention, Tor which it has jurisdiction thefourth objection of the nited Sta tes t o jurisdiction can no t therefore beupheld.



36. In its Cou ntcr-M emo rial, the United States has advanced a numb erof arguments presented as objections to the admissibility of Mexico'sclaims. 1t argues tha t

Before proceeding, the Court should weigh whether characteris-tics of the case before it today, or special circumstances related toparticular claims, render either the entire case, or particular claims,inappro priate for further consideration an d decision by the Court.

37. The first abjection u nder this head is that Mexico's submissionsshould be found inadmissible because they seek to have this ourt Func-tion as a cou rt of criminal -ap pe alv ; there is, in the view of the UnitedStates, no other apt characterization of Mexico's two submissions inrespect of remedies . The Court notes that this contention is addressedsolely to the ques tion of remedies. Th e United States does not contend onthis groun d tha t the C ou rt should decline jurisdiction to enquire into thcquestion of breaches of the Vicnna Convention at all, but simply that , ifsuch breaches are shown, the C ou rt should do no m ore than decide that

thc United States must provide sevicw an d reconsideration alo ng thelines indicated in the Ju dgm ent in. the LaGmnd case I .C . Reports 2001,

pp. 513-514, para. 125). The Co urt notes that this is a matter of merits.The first objection of the United States to admissibility cannot thereforebe upheld.

38 The Court now turns to the objection of the Unitcd Statesbased o n the rule of exhaustion of local remedies. The Uniled Slatcs

con tend s th at the C ou rt should find inadmissible Mexico's claim loexercise its right of diplomatic protcction on behaIf of any Mexicannational who has failed to meet the customary legal requirement of

exhaustion of municipal remedies . It asserts that in a number of thecases 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 35 paragraph 1,of the Vienna Convention at the trial. Furthermore, it contends thatall of the claims relating to c scs referred to in the Mexican Memorialare inadmissible bccause local remedies remain available in every case.

It has drawn attention to the fact that litigation is pending bcforccourts in the United States in a large number of the cases the subjectof Mexico's claims and that, those cases whcrc judicial remedieshave been exhausted, the defendants have not had recourse to theclemency process available to them; from this it concludes that none



of the cases is in an appropriate posture for rcview 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 majorityof the Mexican nationals referred to in paragraph 16 above have soughtjudicial remedies in the United States based on the Vienna Conventionand 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 inthe LaCrand case that

the United States may n o t . rely before this Cou rt on this fact inorder 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 LrtGrand brothers I.C

Reports 2201 p. 488 pard. 60 .

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

the courts of the United States have never granted a judicialremedy to a n y foreign national for a violation of Article 36. TheUnited States courts hold either that Article 36 does not create anindividual right, or that a foreign national who has been denied his

Article 36 rights but given his constitutional and statutory rights,cann ot establish prejudice and therefore canno t get relief.

It concludes that the available judicial remedies are thus ineffective. Asfor clemency procedures, Mexico contends that they cannot count forpurposes of the rule of exhaustion of local remedies, because they are not

a judicial remedy.

40. In its final submissions Mexico asks t he Court to adjudge anddeclare that the U nited States, in failing to comply with Article 36, para

graph 1, of t h c Vienna Convention, ha s violaled its international lcgalobligations to Mexico, in its own Tight nd in the exercise of its right ofdiplomatic protection of its nationals .

The ourt would first observe that the individual rights of Mexicannationals under p r gr ph b ) of Article 36 o r the Vienna Conventionare rights which are to be asserted, at any rate in the first place, withinthe dom estic legal system of the Un ited States. Only when th at process iscom pleted and local remedies are exhausted would Mexico be entitled to

espouse the individual claims of its nationals through t h e procedure of

diplomatic protection.

In the present case Mexico does not, howcver, claim to bc acting solelyon that basis. It also asserts its own claims, basing them on the injurywhich it contends that ir has its+ suffered directly and ~ h r o ~ i g hrs



nulionul.~ s a result of the violation by the United States of the obliga-

tions incumbent upon il under Article 36, paragraph a ) , B ) and u j .

Th e Co urt would recall that, in the LaCrurzd case, it recognized that

Articlc 36, paragraph 1 [of the Vienna Convention], creaks indi-vidual rights [for the nationa l concerned], which may be invokedin this Court by the national State or the detained person I.C.J.Reports 2001 p. 494 para. 77).

It would further observe that violations of ~ h cights of the individualunde r A rticle 36 may entail a violation of the rights of the send ing State,and that violations of the rights of t he latter may cntail a violation of therights of the individual. In these special circumslances of interdependenceof the rights of the State: a n d of individuai rights, Mexico may, in sub-mitling a claim in its own name, requcst the Court to rule on the viola-tion of rights which it claims to have suffered both directly and throughthe violation of individual rights conferred on Mcxican nationals undcrArticle 36, paragraph b ) . Thc duty to exha usl local remedies does notapply to such a request. Fu rthe r, for reasons just explained, the C ou rtdoes not find it necessary to deal with Mexico's claims of violation undera d is t inc~heading af diplomatic protection. Withoul needing to pro-nounce at this juncture on the issues raised by the procedural default

rule, as explained by M exico in pa rag raph 39 above, the Court accord-ingly finds tha t the second objection by lhc United States lo adnlissibilitycannot be upheld.

41 The Court now turns to the question of lhc alleged dua l national-ity of certain of the Mexican nationals the subjcct of Mexico's claims.This question is raised by the United States by way of an objection lo the

admissibility of those claims: the United States contends that in itsMemorial Mexico had failed 10 establish tha t it may cxercise diplom aticprotection based on breaches of Mexico's rights undcr the Vienna Con-vention with respect to those of its n ationals who are also nationals of theUnited States . T he United S tates regards it as an acccpted principle tha t,when a person arrested or detained in the receiving State is a national ofthat State, then even if he is lso a national of another State party to theVienna Convention, Article 36 has no application, and the authoritieso r the receiving Slate are not required to procced as laid down n thatArticle; and Mexico has indicated that, Tor the purposes of the present

case it docs not contest that dual nationalshave

no right to be advisedof rheir rights undcr Article 36

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



own right on the basis of the alleged breaches by the United States of

Article 36 of the Vienna Convention. Seen f rom this standpoint, thequcstion of dual nationality is not one of admissibility, but of merits. Aclaim may bemade by Mexico of breach of Article 36 of the Vienna Con

vention in relation to a ny of its nationals, a nd the United S tates is therc-upon free to show that, because the person concerned w s also a UnitedStates nation al, A rticle 36 had no application to that person, so that nobreach of treaty obligations could have occurred. Furth erm ore, as regardsthe claim t o exercise diplo ma tic protection, the question whether Mexicois entitled to protect a person having dual Mexican and United Statesnationality is subordinated to the question whcther in relation to such aperson, the United States was under any obligation in t e r n s of Article 36of the Vienna Convention. It is thus in the course of its examination ofthe merits that the Court will have lo consider whcther the individualsconcerned, or some of them, were dual nationals in law. Without preju-dice to the outcome of such examination, the third objection of theUnited States to admissibility cannot therefore be upheld.

43. The Court now turns to the fourth objection advanced by theUnited Slates to the admissibility of M exico's claims: the con tention that

The Court should not permit Mexico to pursue a claim againstthe United States with respect to any individual case where Mexicohad actual knowledge of a breach of the Vienna Convention] butfailed to bring such breach t o the attention of the United States or

did so only after considerable delay.

n the Counter-Memorial, the United States advances two considerationsin support of this contention: that if the cases had been mentionedpromptly, corrective action might have been possible; and that byinaction Mexico created an impression that it considered that the

United States was meeting its obligations under the Convention, asMexico understood them. At the hearings, the United States suggestedthat M exico had in effect waived its right to claim in respect of the allegedbreaches of the Convention, and to seek reparation.

44 As the Court observed in the case of ertain Phosphate land.^ inNauru Nouru v. Austrulia), delay on the part of a claimant State mayrender an application inadmissible , but international law does no t laydow n a ny specific time-limit in tha t rega rd 1.C.J Reports 1992 pp. 253

254, para. 32). In that case the Court recognized that delay might preju-dice the respondent State with regard t o both the establishment of thefacts and the determination of the content of the applicable Iaw ihid,

p. 255, para. 36), but it has not been suggested that there is an y such riskof prejudice in the present case. So far as inadmissibility might be based

on an impIied waiver of rights, the Court considers that only a much



more prolonged and consistent inaclion on the par1 of Mexico than a n y

that the United Slatcs has alleged might be interpreted as implying sucha waiver. Furthermore, Mexico indicated a number of ways in which i tbrought to the altcntion of the United States the breaches which it per-ceived of the Vienna Convenlion. T h e fourth objection of the UnitedStates to admissibility cannot therefore be upheld.

45. The C ou rt has now to examine the objection of the United Statesthat the claim of Mcxico is inadmissible in that Mexico should not bcallowed to invoke against the United States standards that Mexico doesno t follow in its own practice. T he U nited States con tend s that, inaccordance wilh basic principles of administration of justice and theequality of States both litigants are to be hcld accountable to the samerules of international law. The objection in this regard was presented interms of the interpretation of Article 36 of the Vienna Convention, in thesense that, according to the Unikcd States, a treaty may not be inter-preted so as to impose a significantly greater burden on any one partythan the other Diversion oJ ater from liz Meuse Judgment, 1937

P. C I J . , Series A IB No. 70 p. 20).46. The Court would recall that t hc United Statcs had already raiscd

an objection of a similar nature before it in the LaGrund case; there theCour t held that it need not decide whether this argument of the UnitedSta tes, if true , would resu ll in the inadmissibility of Germany's submis-sions , since the United States had failed to prove that Germany's ownpraciie did not conrorm to the standards it was demanding from theUnited States I. J. Reports 2001 p. 489, para. 63 .

47. The Cour t would recall that it is i n any event essential to have inmind the nature of the Vienna Convention. I t lays d o w n certain stand -ards to bc observed by all States parties, with a view lo the unimped ed

conduct of consular relations , which, as the Co urt observed in 1979 isimp ortan t in present-day international law in pro m oti ~lg he develop-ment of lkicndly relations among nations, and ensuring protection andassistance for aliens resident in the territories of other States UniredSrutes Diplomutic und Consulur l ug in Tehran Unilud Stures o

Amerku v. Iran}, Prtlvisional Measures Order o 15 Dccember 1979,I. C.J. eports 1979, pp. 19-20, para. 40 . Even if it were shown, there-fore, that Mexico's practice as regards the application of Article 36 wasnot beyond reproach, this would n ot con stitutc a ground of objection tothe admissibility of Mexico's claim. The fifth objection of the United

States to admissibility cannot therefore be upheld.



48. Having established that it has jurisdiction to entertain Mexico's

claims an d t hat they a re admissible, the C ourt will now turn to the meritsof those claims.

44. In its final submissions Mexico asks the Court to adjudge anddeclare that,

the United States of America, in arresting, detaining, trying, con-

victing, and sentencing the 52 Mexican nationals on death rowdescribed in Mexico's Me mor ial, violated its interna tional legal obli-gations to Mexico, in its own right and in the exercise of its right todiplomatic protection of its nationals, by failing to inform, w ithoutdelay, the 52 Mexican nationals after their arrest of their right toconsular notification and access under Article 36 (1) h ) of th

Vienna Convention on C onsu lar Relations, and by depriving Mexicoof its right to provide consular protection and the 52 nationals'right to receive such protection s Mexico would provide underArticle 36 (1) a) and c ) of the Convention .

50. The Court h s already in its Judgment in the LaGrund casedescribed Article 36 paragraph 1 as an interrelated regime designed tofacilitate the implementation of the system o f consular protection I.C.J.Reporis 2001, p. 492, para. 74 . It is thus convenient to set out theentirety of that paragraph.

With a view tow ard facilitating the exercise of consular function srelating to nationals of the sending State:

a ) consular officers shall be free to communicate with nationals ofthe sending State and to have access to them. Nationals of thesending State shall have the same freedom with respect to communication with and access to consular officers of the sendingState;

h ) if he so requests, the competent authorities of the receivingSta te shall, without delay, inform the consular post of the sending State if, within its consu lar district, a national oi that State:is arrested or committed to prison or to custody pending trial

or is detained in any other manner. Any communicationaddressed to the consular post by the person arrested, in prison,custody or detention shall be forwarded by the s id authorities

3



40 A V E N A AND OTI IBRS JUUGMLNT)

without delay. Thc said autho rities shall inform the person c on-

cerned without delay of his rights under this subparagraph;

(c) consular officers shall have thc right to visit a national of thesending State who is in prison, custody or detention, to con-verse and correspond with him an d to arrange for his legal rep-resentation. T h e y shall also have the right to visit any nationalof the sending State who is in prison, custody or detention intheir district in pursuance of a judgm ent. Nevertheless, con sula rofficcrs shall refrain from taking action on behall' o f a nationalw h o it; in prison, custody o r detention i r he expressly opposes

such action.

51. The United States as the receiving State does not deny its dutyto perform thesc obligations. However, it claims that the obligationsapply only to individuals shown to be of Mexican nationality alotie, andnot to those of dual MexicanlUnilcd States nationality. The UnitedStates further contends irzt r alia that i t has not committed any brcachof Article 36, paragraph b ) , upon the proper interpretation ofwithout delay as used in that subparagraph.

52. Thus two major issues under A rticle 36, paragraph b ) , that arein disp ute between the Parties are, first, the question of the riationality ofthe individuals concerned and second, the questio n of the meaning to begivcn to the expression without delay . Thc ourt will examine each ui'

these in turn.

53. The Parties have advanced thcir contentions as to nationalily in

three different legal contexts. The United States has begun by making anobjection to admissibility, which the Court has already dealt wilh (see:

paragraphs 41 and 42 above). The United States has further contendedthat a substantial number of the 52 persons listed in paragraph 16

above were United States nationals and that it thus had no obligationto these individuals undcr Article 36, paragraph h ) . The Court willaddres s this aspect of the mat ter in the following paragraphs . Finally, theParties disagree as to whether th requirement under Article 36, para-graph h) , for the inform ation to be given without delay becomesoperalive upon arrest or upon ascertainment of nationality. The Courtwill address this issue later scc paragraph 63 below).

54. The Parties disagree as to what each of them must show as regardsnationality in connection w ith the applicability of the t e rns of Article 36,

paragraph 1, and as to how the principles of cvidence have been met onthe facts of the cases.



55. Both Parties recognize the well-sellled principle in international

law thata

litigant seeking to establish the existence of a fact bearsthe

burden of proving it (cf. Mi l i tary und Pararniliiary Activi l ies in anduguinst Niuarragncc Nicaragua v. Uniied lates o Americu), Jurisilictionand Adwissisibility Judgnzenl I C.J. Rpporls 1984 p. 437 para. 101).Mexico acknowledges that it has the burden of proor to show that the52 persons listed in parag rap h 16 abov e were Mexican n ationals t o whomI hc provisions of A rticle 36 paragraph 1 b ) , n principle apply. It claimsit has met this burden by providing to the Court I ~ Cirth certificates ofthese nationals, and declarations from 42 of them that they have notacquired United States nationality. Mexico further contends that theburden of proof lies on the United States should it wish lo contend thatparticular arrested persons of Mexican nationality were, at the relevanttime, also United States nationals.

56 The United States accepts that in such cases it has the burden of

proof to demonstrate United States nationality, but ont tends tha t none-theless the burden of evidcnce as to this remains with Mexico. Th is dis-tinction is explained by the United States as arising out of the f:dct thatpersons of Mexican nationality may also havc acquired United Statescitizenship by operation of law depending on their parents' dates andplaces or birth, places of residency, marital status at time of their birth

and so forth. I the view of the United Stat es virtually all such informa-tion is in the hands of Mexico through the now 52 individuals it repre-sents . Th e United Slates contends th at it was the responsibility of

Mexico lo produce such information, which responsibility it has not discharged

57. Thc Court finds that it IS for Mexico to show that the 52 personslisted in paragraph 6 above held Mexican nationality at the time of theirarrest. Thc Court notes that to this end Mexico has produced birthcertificates and declarations of nationality, whose contents have notbeen challenged by the United States,

The Court observes further that the United States has, however, questioned whether some of these individuals were not lso United Statesnationals. Thus, the United States has informed the Co urt tha t, in thecase of defendant Ayala (case No . 2) we are close to certain th at A yala isa United States citizen , and that this could be confirmed with absolutecertainty if Mexico produced facts about this mattes. Similarly Mr.Avena (case No. 1) was said to be like ly'9 0 be a United States citizen,and there was some possibility th at som e 16 oth cr defend ants wereUn ited States citizens. s to six others, the United States said it cannot

rule out the possibility of United States nationality. The Court lakes theview that it was for the United S tates to dem onstrate that this was so andto furnish the Court with all information on the matter in its possession.In so far as relevant data on that matte r are said by the United States tolie within the knowledge of Mexico, it was for the United States to have



42 AVENA ND OTHERS (JUDGMENT)

sought that information from the Mexican authorities. Th e Co urt cann ot

accept that, because such inrormation may have bccn in part in the handsof Mexico, it was for Mexico to produce such information. It was for theUnited States to seek such in form ation , with sufficient specificity, an d todemonstrate both that this was done and that the Mexican authoritiesdeclined or failed to respond to such specific requests. A t no stage,however, has the United States shown the Court that it made specificenquiries of those authorities abo ut particular cascs and that rcsponseswere no t forthcoming. Th e Cou rt accordingly concludes th t the UnitedStatcs has not mct its burden of proof in its attempt to show that personsof Mexican nationality were also United States nationals.

The Court therefore finds that, as regards the 52 persons listed inparagraph 6 above, the Unitcd Statcs had obligations under Article 36,paragraph 1 b ) .

58. Mexico asks the Court to find that

the obligation in Article 36, paragraph I of the Vienna Conv entionrequires notification of consu lar rights a nd a reasonable op portun ityfor consu lar access before the com petent auth orities o r the receiv-ing State take any action potentially detrimental to the foreign

national's rights .

59 Mexico conte nd s that, i11 each of the 52 cases before the Cou rt, th eUnited States failed to provide the arrested persons with information asto their rights under Article 36, paragraph h ) , without delay . It

alleges that in one case, Mr. Esquivel case No. 7 , the rresled personwas informed, but only some 18 mo nths a fter the arrest, while in an oth er,that of Mr. Juirez case N o . lo), information was given to the arrestedperson of his rights some 40 hou rs after arrest. Mexico conten ds that thisstill constituted a violation, because without delay is to be understood

as meaning immediately , and in an y event before an y interr oga tionoccurs. Mexico further draws the Court's attention to tlze fact that inthis case a United States court found that there had been a violation ofArticle 36, paragraph 1 b ) , and claims that the United S tates cann otdisavow such a determinatioil by i ts own courts. In an Annex to itsMemorial, Mexico mentions that, in a third case (Mr. Ayala, case N o . 2),the ccused was informed of his rights upon his arrival on dcath row,

some four years after arrest. Mexico contends that in the remainingcases the Mexicans concerned were in fact never so informed by theUnited States authorities.

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



43 AVENA AND OTHERS JUDGMENT)

some seven months after his arr est. The United States further claims that

many of the persons concerned were of United States nationality and thatat least seven of these individuals appear to have affimativcly claimed tobe United States citizens at the time of their arrest . These cases were saidto be those of Avena (case No. l), Ayala (case No. 21, Benavides caseNo. 3), Ochoa (case No. 18 , Salcido (case No. 22), Tafoya (case No. 241and Alvarez (case No. 30 . In the view of the United States no duty ofconsular information arose in these cases. Further, in the contention ofthe U nited States, in the cases of Mr*Ayala (case No. 2) an d Mr. Salcido(case No. 22) there was no reason to believe that the arrested persons wereMexican nationals a t any stage; the in form ation in the case of Mr. Juirezcasc No. 10) was given withou t delay ,

51. The C ou rt thus now turns to the interpretation of Article 36, pa ra-graph 1 b) , having found in paragraph 57 above that it is applicable tothe 52 persons listed in paragraph 16. It begins by noting th at A rticle 36,paragraph 1 b ) , contains three separ ate but interrelated elements: theright of thc individual concerned lo be informed without delay of hisrights under Article 36, paragraph b ) he right of the consu lar post t obe notified without delay of the individual's detention, if he so requests;and the obligation of the receiving State to forward without delay anycomm unication addressed t o the consular post by the detained person.

62. The third element of Articlc 36 paragraph 1 b ) , has not beenraised on the facts before the Co urt . The C ou rt thus begins with the rightof an arrested or detained individual to information.

63. The C o u r t finds that the duty upon the detaining authorities to

give the Article 36, paragraph b ) , information to the individual arisesonce it is realized that the person is a foreign national, or once there aregrounds to think chat the pcrson is probably a forcign national. Preciselywhen this may occur will vary with circumstances. The United StatesDepartment of State booklet, Consular Not cation and Access nstruc-

l ions for Federal Stale und ocal Law Enfircement and Other QfjcialsRegmiling Foreign Nationals in the United States and the Righis of Con-sular Officiuls Q ssisf Them, issued to Federal, state and local authori-ties in order to promote compliance with Article 36 of the Vienna Con-vention points o u t in such cases th at : most, but not all, persons bornoutside the United States are not [citizens]. Unfamiliarity with Englishmay also indicate foreign nationality. The Cou rt notes that when a narrested person himself claims to be of United States nationality, therealization by the authorities that he is not in fact a United Statesnational, or gro unds for tha t realization, is likely to come somewhat later

in time.



64. The United States has told the Court that millions of aliens reside,either legally or illegally, on its territory, and mo reove r that its laws con-cernin g citizenship are generous. The United States has also pointed outtha t it is a mullicuItura1 society, w ilh citizenship being held by pcrsons ofdiverse appearance, speaking many languages. The Courl appreciatesthat in the United States the language that a person speaks, or hisappearance, does not ncccssarily indicate that hc is a foreign national.Nevertheless, and particularly in view of the large numbers of foreignnationals living in the United States, lhcse very circumstances suggestthat 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 ofthe Vienna Convention may be complied with. The United Stales hasinformed the Court that some of its law enforcement authorities doroutinely ask persons lakcn in to detentio n whether they ar e United Statescitizens. Indccd, were each individual to be told a t that time that, shouldh be a foreign national, hc is entitled to ask for his consular post to becontacted, compliance with this requirement under Article 36 para-graph h ) , would be greatly enh an w d. T h e provision of such in form a-tion could parallel the reading of those rights of which any person takeninto custody in connection with a criminal offcnce must be informedprior to interrogation by virtue of what in thc United S tates is known asthe M iranda rule ; these rights include, inl r aliu the righl to remain

silent, the right to have an attorney present during questioning, and theright t o have an attorney appointed at government expense if the personcannot afford one. The Co urt notes that, according to the United States,such a practice in respect of the Vienna Convention rights is alreadybeing 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 I b) , of the Vienna Convention to the 52 cases. In 45 o fthese cases, the Court has n o cvidence that the arreslcd persons claimed

United SVdtes nat ionality , o r wer reasonably thought to bc United Statesnationa ls, with specific enquiries being m ade in timely fashion to verifysuch dual nalionality. The Court has explained in paragraph 57 abovewh at enquiries it would have expected to have been mad e, within a shorttime period, and what information should have been provided to theCourt .

66. Seven pcrsons, however, are asserted by the United States tohave stated at the timc of arrest th at they were United States citizens.Only in the casc o Mr. Salcido casc No. 22) has the Court been pro-vided by the United States with cvidence of such a statement. This h as

been acknowledged by Mexico. Further, there has been no cvidencebefore thc Cou rt to suggest that there were in this case at the same timealso indications of Mexican nationality, which should have caused~ a p i d nquiry by the arresting authorities an d the providing of consularinf orm atio n without delay . Mexico has accordingly not shown that in



inlbrmed that the Tmmigration and Naturalization Service was holding

investigations to determine whether, because of a previous conviction,Mr. Alvarez was subjcct to deportation as a foreign national. The Courthas not been presented with evidence that rapid resolution was sought asto the question of Mr. Alvarez's nationality.

74. Th e Co urt concludes tha t Mexico has failed to prove the violationby the United States of its obligations undcr Article 36, paragraph (b) ,in the case or Mr. Salcido (case No . 22), and his case will not be furthercornmenlcd upon. On the other hand, as regards the other individualswho re alleged to have claimed United States nationality on arrest,

whose cases have been considered in paragraphs 67 to 73 above, theargument o r lhc nitcd States cann ot be upheld.

75. Th e question noncthcless remains a s to w hether, in each of the 45cases referred to in paragraph 65 and of the six cases mentioned in para-graphs 67 t 73, the United States did provide the required informationto the arrested persons without delay . I t is to tha t qucstion that theCourt now turns.

76. Th c C ou rt has been provided with declarations from a number ofthe Mexican n ationals concerned tha t attest to their never being inform ed

of their rights under Article 36, paragraph1 b ) .

The Co urt a t the outsetnotes that, in 47 such cases, the United States nowhere challengesthis fact of information not being given. Nevertheless, in the case ofMr. He rnin dez (case No. 34 , the U nited States observes that

Although the [arresting] officer did n o t sk Hernindez Llanas

whether he wanted them t inform t h e exican Consulate of hisarrest, it was certainly not unreasonable for him to assume that an

escaped convict would n o t want the Consulate of the country fromwhich he escaped notified of his arresl.

Thc Court notes that the clear duty to provide consular informationunder Article 36, paragraph B ) , does not invite assumptions as towhat the arrested person might prefer, as a ground For not informinghim. t rather gives the arrested pc rson, o nce inform ed, the right to say henonetheless does not wish his consular post to be notified. It necessarilyrollows that in each of these 4 cases, the du ty to inform w ilho ut delayhas been violated.

77. In four cases, namely Ayala (case No. 2), Esquivel (case No. 7),

Ju ire z (case N o . 10) and Solache (case N o . 471 some doubts remain as towhether the information that was given was providcd without delay. Forthese, some examination of th e t e r n is thus necessary.

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



Acco rding to Mexico, the timing of the notice to the de tained person is

critical to the exercise of the rights provided by Article36 nd

thephrase without delay in para grap h h j requires unqualified imme-diacy . Mexico I'urther contcnds that, in view of the object an d purposeof A rticle 36 which is t o enable meaningful consular assistance and thesafeguarding of the vulnerability of foreign nationals in custody,

consuiar notification mu st occur immediately upon detentionand prior to any interrogation of the foreign detainee, so that theconsul may offcr useful advice about the foreign legal system andpravide assistance in obtaining counsel before the foreign national

mak es an y 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 rightsunder Article 36, there would sof cto be a breach of that Article, how-ever rapidly after the interrogation the inform ation was given to the for-eign national. Mexico accordingly includes the case of Mr. Ju i r ez amongtho se whe re it claims violation of Article 36, paragraph 1 b ) , as he wasinterrogated before being informed of his consular rights, som e 40 hoursafter arrest.

80. Mexico has also invoked the dr vnnx pr6purutoires or th ViennaConvention in support of its interpretation of thc requirement that thearreste d person be inform ed with out delay of the right to ask that theconsular post be notified. In particular Mexico rccallcd that the phraseproposed to the Conference by the International Law Commission, with-out undue delay , was replaced by thc United Kingdom proposal to

delete the word undue . Th e United Kingdom representative hadexplained that this would avoid the implication tha t some delay waspermissible and no delegate had expressed dissent with the USSR a n d

Japanese statements that the result of the amendment would be Eorequ ire inform ation immediately .

81. The United Sta tes disputed this interp retation of the phrase with-ou t delay . In its view it did not mean immedialely, and before interro-gation an d such an understanding was supported neither by the termi-nology nor by thc object and purpose of the Vienna Co nvention, n or byits tr v ux pr paruloires. In the booklet referred to in paragraph 63above, the State Dep artmen t explains that without delay means thereshould be no deliberate delay and that the required action should be

taken as soon as reasonably possible und er the circumstances . It wasnormally to be expected th at notification to consular officers wo uldhave been made within 24 to 72 hours of the arrest o r detention . Th eUnited States further contended that such an interpretation of the word s

without delay would be reasonable in itself and also allow a consistent



48 VEN AND OTH RS IUDGMENT)

interpretation of the phrase as it occurs in each of three different occa-

sions in Article 36, paragraph 1 h ) . As fbr the truvous prkparrrtoiresthey showed only t ha t unduc or dclibcratc dclay had been rcjcctcd asunacceptable.

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

The significance of' giving consular inlbrmalion to a national isthus limited It is a procedural device that allows the foreignnation al to trigger the related process of notification [It] ca nn otpossibly be fu ndam ental t o the crim inal justice process.

83. The Co urt now addresses the question of the proper interpretationof the expression withou t dclay in the light of arguments put t o i t bythe Parties. The Court begins by noting that the precise meaning of

without delay , s it is to be und erstoo d in Article 35 paragraph 1 b ) ,is not defined in the Convention. This phrase therefore requires interpre-tation according to the customary rules of treaty interpretation refleclcd

in Articles 31 and 32 of the Vienna Convention on the Law ot Treaties.

84 Article I of the Vienna Convention on Consular Relations, whichdefines certain of the terms used in the Convention, offers no definitionof the phrase without delay . Mo reover, in the different language ver-sions of t he Convention various terms a re e~n ploy ed o render the phrases

without delay in Article 36 an d irnmedialely in Article 14. The Courtobserves that dictionary definitions, in thc various languages o theVienna Convention, ok'f'er diverse meanings of the tcrm witho ut dclay(and also of immediately ). It is ther efo re necessary lo look elsewherefor an understanding of this term.

85. As for the object and purpose of the Convention, the Courtobserves lhal Article 36 provides fo r consular officers to be free to com-municate with nationals of thc scnding State, to have access to them, tovisit an d speak with them and to arrange for their legal representation. Itis not envisaged, either in Article 36, paragraph 1 or elsewhcrc in theConvention, that consular functions entail a consukar officer himself or

herself acting as the legal representative or more directly engaging inthe criminal justice process. indeed, this is confirmed by the wording ofAr t ide 36, paragraph 2, of the Convention. Thus, neithcr thc l c m s

of the Convention as normally understood, nor its object and purpose,suggest tha t witho ut delay is t o be understood as immediately uponarrest and before interrogation .

86. Th e Co urt further notes that, no twilhslanding the uncertainties inthe travuzrx prkpuraloires they too do nor support such an interpreta-



tion. Du ring the diplom atic conf'crence, the conference's expert, form er

Special Rapporteur of the International Law Commission, explained tothe delegatcs tha t the words without und ue delay had bcen introducedby the Comm ission, after long discussion in both the plenary and draf t-ing committee, to allow for special circumslanccs which might permitinformation as to consular notification not lo be given a t once. Germ any,the only one of two States to present an amendment, proposed addingbut at latest within one month . There was an extended discussion by

many different delegates as to what such outer time-limit would be

a m p t a b l e . D u r in g 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 theabsence of agreement on a precise time period, the United Kingdom'sother proposal to delete the word undue was accepted as the positionaround which delegates could converge. It s also of interest that there isno suggestion in the tr v ux th at the phrase without delay7' might havedifferent meanings in each of the thre e sets of circumstances in which it isused in Article 36, paragraph 1 bJ .

87 The Cou r t thus finds th at wizhout delay is no t necessarily to beintcrprcted as immediately upo n arre st. It further observes tha t durin gthe Conference debates on this term, no delegate made any connectionwith the issue of interrogation. Th c C our t considers th at the provision inArticle 36, paragraph I b ) , that the receiving Stale authorities shallinform the person concerned with out delay of his rights ca nn ot be intcr-preted to signify th at the provision o such information must necessarilyprecede any interrogation, so chat the commencement of interrogationbefore the information is given would be a breach of Article 36.

88. Although, by application of the usual ru les o f in ~ er pr e~ at io n ,with-o u t delay as regards the duty to inform an individual under Article 36,paragraph b ) , is not to be understood as necessarily meaning irnrnc-

diately upon arrest , there is nonetheless a duty upon the arrestingauthorities.to give that inform ation to an arrested person as soon as it isrealized th at the person is a foreign nation al, o r once there are grounds tothink that the person is probably a foreign national.

89. With one exception, n o information as to entitlement to consularnotification was given in any of the cases cited in paragraph 77 withinany 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 w as given either not a tall or a t periods very significantly removed fr om the time of arrest. In th

case of Mr. 9uBrez (case No. lo), the defendant was informed of his



5 VEN A N D 0TE.IERS (JUDGMEN I )

consular rights 40 hours after his arrest. The Court notes, however, that

Mr. Juirez ? arrest report stated t ha t he had been born in Mexico; more-over, there had been indications of his M exican nationality from thc timeof his initial interrogation by agents of the Federal Bureau of Investi-gation (FBI) Lbllowing his arrest. It EoIlows that Mr. Juiirez s Mexicannationality was apparent from the outset of his detention by the UnitedStates authorities. I n these circum stances, in accordan ce with its interpre-tation of the expression without delay (see para grap h 88 above), theC ou rt concludes that the Un ited S tates violated the obligation incumbc n tupon it under Article 36, paragraph 1 B J , to inform M r . Juarez w ithoutdelay of his consular rights. The Court notcs that the same finding was

reached by a California Superior Court, albeit on different grounds.

90. Th e C ou rt accordingly concludes that, with respect to each of theindividuals listed in para gra ph 16, with the exception of Mr. Salcido (caseNo . 22; see paragraph 74 above), the United State s has violaled its obli-

gation under Article 36, paragraph b), of the Vienna Convention toprovide information to the arrested person.

91. s noted above, Article 36, paragraph I b ) , contains threeelements. Thus far, the Court has bccn dealing with the right of anarrested person to be informed that he may ask fo r his consular post lo

enotified. The Court now turns to another aspect of

Article36,paragraph h ) , Th e C ourt finds the United States is correct in observ-

ing that the fact that a Mexican consular post was not notified underArticle 36, paragraph 151,does not o f necessity show that the arrestedperson was not in lbm~edof his rights under that provision. He mayhave been informed and declined to have his consular post notified. Thcgiving of the information is relevant, however, for satisfying the clementin Article 36, paragraph A), on which the other two elements thcrcindepend.

92. In only two cases has the United States claimed that the arrestedperson was informed o r his consular rights but asked for the consular

post not to be notified. These ar c Mr. lu irez (case No. 10) and Mr. Solache (case No. 47).

93. The Court is satisfied that whcn Mr. Juirez (case N o . 10 wasinformed of his consular rights 4 hours after his arrest (see para-graph 89) he chose not to have his consular post notified. s regardsMr. Solache (case No. 471 however, it is not sufficiently clcar to the Court ,on the evidence before it, that he requested that his consular post shouldno t be notified. Indeed, the C ou rt has not been provided w ith a n y reasonsas t o why f a request of non-notification was made, the consular postwas then notified some three months latcr.

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



AYENA ND OTI4ERS JUDGMENT)

nationals without prior information to the individual as to his consular

rights. These are Mr. Covarrubias (case No. 6), Mr. Hernandez (caseNo. 34) and Mr. Reyes (case No 43 The United States further con-tends that the Mexican authorities were contacted regarding the case ofM r. Loza case No. 52) .

45. The C our t notes that, in the case of M r. Covarrub ias (case No. 61the consular authorities learned from third parties of his arrest shortlyafter it occurred. Some 16 months later, a court-appo inted interpreterrequested tha t the consu late intervene in the case prior t o trial. It w ouldappear doubtrul whether an interpreter can be considered a competentauthority for triggering the interrelated provisions of Article 36, para-graph 1 b ) , of the Vienna Convention. In the case o f Mr. Reyes (caseNo. 54 , the United States has simply told the Court that an OregonDepartment of Justice attorney had advised United States authoritiesthat both the District Attorney and the arresting detective advised theMexican consular authorities of his arrest. No information is given as towhen this occurred, in relation to the date of his arrest. Mr. Reyes didreceive assistance before his trial. n these two cases, the Court considersthat, even on t he hypothesis that the conduct o f the United States had noserious consequences for the individuals concerned, it did nonethelessconstitute a violation of the obligations incumbent upon the UnitedStates under Article 36, paragraph I h ) .

96. In the case of Mr. Loza (case No. 523 a United States Congress-man from Ohio contacted the Mexican Embassy on behalf of Ohioprosecutors, some four months after the accused s arrest, to enquireabout the procedures for obtaining a certified copy of Loza s birth cer-tificate . Th e Cou rt has not been provided with a copy of the Congress-man's letter and is therefore unable t o ascertain whether it explained thatMr. Loza had been arrested. The response from the Embassy (whichis also not included in the docum entation provided to the C ou rt) was

passed by the Congressman to the prosecuting attorney, who then askedthe Civil Registry of Guadalajara for a copy of the birth certificate.Th is request mad e n o specific men tion 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 andsentenced to death. Mexico includes the case of Mr. Lord among thosein which the United States was in breach of its obligation of consularnotification. Taking amount of all these elements, and in particularo€ the fact that the Embassy was contacted four months after thearrest, and that the consular post became aware of the defendant'sdetention only after hc had been canvicted and sentenced, the Courtconcludes that in the case of Mr. Loza the United States violated theobligation ol' consular notification without delay incumbent upon itunder Article 36, paragraph b ) .



97. Mr. Hcrniindez (case N o. 34 was arrested in Texas o n W ednesday

15 Octobcr 1997. The United States authorities had no reason to believehe might have American citizenship. The consular post was notified thefollowing Monday, that is five days (corresponding to only threc workingdays) thereafter. The Court finds that, in the circumstances, lhc UnitedStatcs did notify the consular post without delay, in accordanw with itsobligation under Article 36, paragraph h) .

88. In the first of its final submissions, Mexico also asks the Courtto find that the violations it ascribes to the United States in rcspect of

Article 36, paragraph h ) , have also deprived Mexico of its right to

provide consular protection and the 52 na t iona ld r igh t to receive suchprotection as Mexico would provide under Article 36 (1) a ) a n d c)of thc Convention .

99. The relationship between the three subparagraphs of Article 36,

paragraph 1, has been described by the Court in its Judgment inthe La rund case I.C.J. Repor r~ 2001 p. 492, para. 74 as aninterrela ted r6gime . Thc legal conclusions to bc drawn from thatinterrelationship necessarily depend upo n the facts of each case. In theLaGrund case, the Court found that the failure for 6 years lo informthe brothers of their right to havc their consul notified effcclively pre-vented the exercise of other rights that Germany might have chosen toexercise unde r subparagraphs a) and c j .

100. Il i s necessary to revisit the interrelationship of the three sub para -grnp hs o f Article 36, paragraph 1, in the lighl of the particular facts andcircumstances of the prcsent case.

101. The Court would first recall that, in the case of Mr. Juhrez (caseNo. 10) see paragraph 93 above), whcn the defendant was ialbrmcd af

his rights, he declined to have his consular posz notilicd. Thus in this case

lhere was no violation of either subparagraph la o r subparagraph c)of A rticle 36, paragraph 1.

102. I n the remaining cases, because of the failure of the United Sta testo acl in conformity with Article 36 paragraph I b ) , Mexico was ineffect prccluded (in some cases totally, nd in some cases for prolongedperiods of time) from exercising its right under paragraph a) to com-municate with its nationals and have access to them. As the Court hasalready had occasion to explain, il is immaterial whether Mexico wouldhave offered con sular assistance, or whether a different verdict wouldhave been rendered. I t is sufficient that the Convention conferred theserights I . C X Reporrs 2001, p 492, para. 74 , which might havc beenacted upon.

103. The same is true, pari pcr.rsu, of ccrtain rights identified in sub-paragraph c): consular officers shall have the right to visit a nationalor the sending State who is in prison, custody or detention, and to con-verse and correspond with him . . .



5 VEN ND OTHERS JUDGMENT)

104 On the other hand , and on the particular facts of this case, no

such generalized answer can he given as regards a further entitlementmentioncd in subparagraph c), namely, the right of consular officers to

arrangc for [the] legal representation of the foreign national. Mexico has

laid much emphasis in this litigation upon the importance of consularofficers being able lo arrange for such representation before and duringtrial, and especially at sentencing, in cases in which a severe penalty maybe imposed. M exico has further indicated thc im portance of any financialor other assistance that consular officers may provide t o defcnce counsel,intcr aliu for investigation o the defendant's family background andmcntal condition, when such information is relevant to the casc The

Cou rt observes that the exercise of the rights o r the sending State unde rArticle 36, paragraph (c), depend s upo n notification by the authoritiesof the receiving State. It may be, however, that information drawn to the

attention of the sending State by othe r means m ay still enable its consu larofficers to assist in arranging legal representation Tor its national. Inthe following cases, the Mexican consular authorities learned of theirnational's detention in time to provide such assistance, eithcr throughnotification by United States authorities (albeit belatedly in terms of

Article 36 , paragraph 1 h ) ) or through other channels: Renavides(case No. 3); Covarrubias (case No. 6 ; EsquiveI (case No ); Hoyos(case No. 9); Mendoza (case No. 17); Ram irez (case No. 20); Sanchez(case No. 23); Verano (case No. 27); Zamudjo (case No. 29); Gomez(case No. 33); He rninde z (case No. 34); Ram ires (case No. 41); Rocha(case No. 42); Solache (case No. 47); Carna rgo [case No. 49) and Rcyes(case No. 54).

105. In relation to Mr. Manriquez (case No. 14 , the Court lacks pre-cise information as to when his consular post w s notified. It is merelygiven 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 Parries in regard to the case ofM r. Fuentes (case No . 15), where Mexico claims it became aware of hisdetention during trial and the United States says this occurred duringjury selection, prior to the actual commencement of the trial. In thccase of M r. A rias (case No. 44 , the Mexican authorities became awareof his detention less than one week before the commencement of thetrial. In those three cases, the Court concludes that the United Statesviolated its obligations under Article 36, paragraph c).

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 (b), of the Vienna Convention to inform detained Mexican nationals o r their rights under



AVENA AND O T H E R S JUDGMENT)

Flores (case No. 46 , Fong (case No. 48 , Perez case No. Sl , Loza

(case No. 52) and Torres (case No. 53 .

107. In its third final submission Mexico asks the Court to adjudgeand declare tha t

the United States violated its obligations under Article 36 (2) of the

Vienna Convention by failing to provide meaningful and effectivereview an d reconsideration of convictions an d sentences impaired bya violation of Article 36 (I) .

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 receivingState, subject to the proviso, however, that the said laws and regu-lations must enable full effect lo be given to the purposes for which

thc rights accorded under this article are intended.

109. In this connection, M exico has argued that t h e United States

By applying provisions of its municipal law to defeat or forecloseremedies for the violation of rights conferred by Article 36 hus

failing to provide meaningful review and reconsideration of severesentences imposed in proceedings that violated Article 36 has

violated, and continues to violate, the Vienna Convention.

More specifically, Mexico contends t h a t:The United States uses several municipal legal doctrines to pre-

vent finding any legal effect from the violations of Article 36. F i rs t

despite this Co urt 's clear analysis in LuGrand US courts, at both thestate and federal level, continue to invoke default doctrines to barany review of Article 36 violations ven when the national hadbeen unaw are of his rights to con sular notification and communica-tion and thus his ability to raise their vioIation as an issue at trial,due to the co mp etent authorities' failure to comply with Article 36.

110. Against this contention by Mexico, t he United States argues tha t:

the criminal justice systems of the United States address all errors

7



in process through both judicial and executive clemency proceed-

ings, relying upon the la tter when rules of default have closed o u t thepossibility of the former. That is, the 'laws and regulations' of theUnited States provide for the correction of mistakes that may bcrelevant to a criminal defendant to occur through a combinationof judicial review and demcncy. These processes together, workingwith other competent authorities, give full effst to the purposes forwhich Article 36 (1) is intended, in conformity with Article 36 2).An d, insofar as a brcach of Article 36 (1) has occurred, these pro-cedures satisfy the remedial function of Article 8 (2) by allowingthe United States to provide review and reconsideration of convic-

tions and sentences consistent with LaGrrrrzd.

1 1 1 Th e procedural default rulc in United States law has alreadybccn brought to the attention of the C ou rt in the LaCrund case The fol-lowing brief definition of the rule was provided by Mexico in its Mcmo-rial in this case a n d has not been challenged by Ihc United States: adefendant who could have raised, but fails to raise, a legal issue at trialwill generally not be permitted to raise it in futu re proceedings, on appealor in a petition for a writ of huhe s (:orpus . The rule requires exhaustion

of remedies, int r ulirr al lhc statc level and before a Izuheas corpusmotion call be filed with federal courts. In the LaGrand case, the rule inquestion was applied by United Stales federal courts; in the present case,Mexico also complains of the application of the rulc in certain state

courts of criminal a ppeal.

112. Th e C ou rt has alrcady considered the application of the pro-cedu ral default rule, alleged by Mcxico to be a hindrance to the fullimplementation of the international obligations of the United States

under Article 36 in the LaG rand cas e, when the C ourt addressed the issueof its implications for the application of Article 36 paragraph 2, of theVienna Convention. The Court emphasized that a distinction must be

draw n between that rulc a s such an d its specific application in th e presentcase . The Court stated:

In itself, the rule does not violate Article 36 of the Vienna Co n-vention. The problem arises when the procedural default rule doesno1 allow the detained individual to challenge a conviclion and sen-tence by claiming , in reliance on Article 36, paragraph 1, of the Con-vention, that the competent national authorities failed t comply

with their obligation to provide the requisite consular information'without delay', thus preventing the person from seeking and o btain -ing consular assistance from the sending State. ( I . C J . R ep or ts2001, p. 497, para. 90.)



57 AVENA AND OTI IERS JUDGMENT)

On this basis, the Co ur t concluded th at the procedural default rule

prevented counselor

the La G ra nd s t o effectively challenge their convic-tions and sentences other than on United States constitutional groundsI.C.J. Reports 2001 p. 493, para. 91). This statem ent of the C ourt seem s

equally valid in rclation lo the present case, where a number of Mexicannationals have been placed exactly in such a situation.

13. 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 thatthe procedural default rule h s not been revised, nor has any provision

been madeto

prevent its application in cases where it has beenIh e

failureof the United States itself to inform that may have precluded counselfrom being in a position to have raised the question of a violation of theVienna Convention in the initial trial. It thus remains the casc that theprocedural default rule may continue to prevent courts from attachinglegal significance to the fact, inter uliu t ha t the violation of th rights set

forth in Article 36 paragraph 1, prevented Mexico, in a timely fashion,from relaining privatc counsel for certain nationals and otherwise assist-ing in their defence. In such cases, application of the procedural defaultrule would have the effect of preven ting full effect [from being] given to

the purposes For which the rights accorded unde r this article ar e intended ,a n d thus violate p r gr ph 2 of Article 36 Thc Court notes moreoverthat in several of the cases cited in Mexico's final submissions the pro-cedural default rule h as already been a pplied, and tha t in othe rs it couldbe applied at subsequent stages in the proceedings. However, in none ofthe cases save fo r the three mentioned in paragraph 114 below, have t h ecriminal proceedings against the Mexican nationals concerned alreadyreached a s tage a t w h~ ch here is no further posnbility of judicial re-examination of those cases hat is to say all possibility is not yet excludedof review and reconsideration of conviction and sentence, as called forin the La rand case, and as explained fur ther in paragrslphs 128 an d fol-

lowing below. It would therefore be prema ture For the Cou rt to concludca t this stage that, in those cases, there is already a violation of t h c obli-gations under Article 36, paragraph 2 of the Vienna Convention.

114. By contrast, the Court notes that in the case of three Mexicannationals, Mr. Fierro (case No. 311 Mr. Moreno (mse No . 391, a n dMr . Torres (case No. 53 , conviction and scntence have become final.Moreover, in the case of Mr. Torres the Oklahoma Court o f CriminalAppeals has set an execution date (see paragraph 21 above, n Jne .

Thc ourt must therefore conclude that, in relation to these three indi-viduals, the United States is in breach of the obligations incumbentupon it under Article 36, paragraph 2, of the Vienna Convention.



58 VEN ND OTH RS JUDGMENT)

115. Having concluded that in most of the cases brought before theCourt by Mexico in the 52 instances, there has been a failure to observethe obligations prescribed by Article 36, paragraph I b ] ,of thc ViennaConvention, the Court now proceeds to the examination of the legalconsequences or such a breach and of what legal remedies should be con-sidered for the breach.

16 Mexico in its fourth, fifth and sixth submissions asks the Court loadjudge and dcclare:

(4) that pursuant to the injuries sufl'ered by Mexico in its own right

and in the exercise of diplomatic protection of its nationals,Mexico is cntitled to Full reparation for these injuries in theform of resriiutio i ~ nlegrum

5) that this restitution consists of the obligation to restore thestatus uu unlr y annulling or otherwise depriving of fullforce or cfSect the conviction and sentences of all 52 Mexicannationals; [and]

6) that this restitution also includes the obligation to take

all measures necessary to ensure that a prior violation ofArticle 35 shall not aKcct the subsequent proceedings.

117. In support of its fourth and fifth submissions, Mexico argues thatlt is wdl-established that the primary form of reparation available to a

State injured by an internationally wrongful act is rrstirutiu in intrgrum ,

and that Thc United States is therefore obliged to take the necessary

actlon to restore the srarus quo ante in respect of Mexico's nationalsdetained, tried, convicted and sentenced in violation of their intcrnalion-ally recognized rights. To restore the st tus quo ante Mexico contendsthat restitution hcrc must take the form of annulment O the conv~ctions

and sentences lhat resulted from the proceedings tainted by the Article 36violations , and that It follows from the very nature of rrsti lutio that,when a violation of an international obligation is manifested i n a judicialact, that act must be annulled and thereby deprived of any force or effectin the national legal system. Mexico therefore asks in its submissionsthat the convictions and sentences of the 52 Mexican nationals beannulled, and that, in any Suturc criminal proceedings against these 52Mexican nationals, evidence obtained in breach of Article 36 of theYicnna Convention be excluded.

118 The United States on the other hand a rgues :

La rmrds holding calls for the United States to provide, in eachcase, 'review and reconsideration' that 'takes account of the viola-



tion, not 'review and reversal', not across-the-board exclusions ofevidence or nullification of convictions simply because a breach of

Article 36 (1) occurred and without regard to its effcct upon the con-viction and sentence and no t 'a precise, concrete, stated result:to re-establish the s utus quo ante '.

119. The general principle on the legal consequences of the commis-sion of an inlcrnationally wrongful act was stated by the PermanentCourt of International Justice in the Factory ut Chorrbw case as follows:It is a principle of international law tha t the breach of an engagement

involves an obligation to make reparation in n adequate form. [FCLC-tory at Chorzdw, Jurisdiction, 19.27, P .C. . J . , Series A , No. 9 p. 21 .W ha t constitutes reparation in n adequate form clearly varies depe nd-ing upon the concrete circurnstanws surrounding each case and the pre-cise nature and scope of the injury, since the question has to be examinedfrom the viewpoint of what is t h e reparation in an adequate form thatcorresponds to the injury. Pn a subsequent phase of the same case, thePermanen t Cou rt went on l o elaborate on this point as follows:

The essential principle containe d in Ihe actual notion of an illegalact principle which seems to be established b y internationalpractice and in particular by the decisions of arbilral tribuna ls s

that reparation must, as fars

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 n o t been committed.Factory l Chorzdw Meriis, 1928 P.C. I .J . , Series A , No. 17p . 47.

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

The Cou rt considers in this respect that if the United States, notwithstanding its comrnitrncnt [to ensure implementation of the

specific measures adopted in performalice of its obligations under

Article 36, paragraph 1 (b)], should fail in its obligation of consularnotification to the detriment of Germ an nationals, an apology wouldnot suffice in cases where the individuals concerned have been sub-jected to prolonged detention o r convicted a nd sentenced to severepenalties. In the case of such a conviction and sentence, it would beincumbcnt upon the United Slates 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 canbe carried ou t in various ways. Th e choice of n-reans must be left lothe United States. L C J. Reporis 2001, pp. 513-514, para. 125.)

121. Similarly. in the present case: the Court's task is to determinew h a t would be adequate reparation for t h e violations of Article 36. Itshould be clear from what has been observed above that the internation-ally w rongful acts committed by the United Stales were the failure of its



5 AVENA AND OTlIERS ( JUDGM E NT )

competent authorities to inform the Mexican nationals concerned, tonotify Mexican consular posts and to enable Mexico to provide consuIarassistance. It follows that the rerncdy to make good lhese violationsshould consist in an ob ligation on thc U nited States to permit review andreconsideration of these nationals' cases by the Uniled States courts, asthe C ou rt will explain furthe r in para grap hs. 128 ta 134 below, with a

view l o ascertaining whether in each case the violation of Article 36 com -mitted by the competent authorities caused actu al prejudice to the defend-ant in the process of administration of criminal justice.

122. Th e Co urt reaffirm s,that the case before it concerns Article 36 ofthe Vicnna Conve ntion and not the correctness as such of any convictionor sentencing. The question of whether thc violations of Article 36, para-graph 1 are to bc regarded as having, in the causal sequence of events,ultimately led to convictions and scvere penalties is an integral part ofcriminal proceedings before the courts of the United States and is lor

them to dctcrmine in the process of review and reconsideration. In so

doing , il is for the cour ts of the United States to exam ine the facts, an d inparticular the prejudice and its causes, taking account of the violation ofthe rights set forth in the Convention.

123 11 is no t to be presumed, as Mexico asserts, that partial or total

annulment of conviction or sentence providcs the necessary and soleremedy. In this regard, Mexico cites the recent Judgment of this Courtin the case concerning the Arrest Wurranr of April 2000 Drmour~rtic

~pub l i co the Congo v . Belgium , in which the Co urt ordcred thecancellation of an arrest warrant issued by a Bclgian judiciab oKicial inviolation of thc international immunity of the Congo Minister for ForeignAffairs . However, the present case has clearly to be distinguished fro mthc rrest Wurrant case n that case, the question of thc legality underinternational law of the act of issuing thc arrest warrant against theCongolese Minister for Forcign Affairs by the Belgian judicial au tho ri-

ties was itsclf the subject-rnatlcr of the disputc. Since the Court foundthat act to be in violation of intcrnational law rclating to immunity, theproper legal consequence was Lbr the Court to order the cancellation of

the arrest warrant in question 1.C J Reports 2002, p 33 . By contrast,in the present case i t is not the convictions and senlcnces of the Mexicannationals 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 notifica-tion and consular communication under the Vienna Convention is a fun-damental human right that constitutes part of due process in criminalproceedings and should be guaranteed n the territory of each of the Con-tracting Parties to the Vienna Convention according to Mexico, this



AVE NA ND OTHERS (JUWMEN I )

right, as such, is so fundamental that its infringement will @ so ucto pro-

duce the effect of vitiating the entire processof

Ihc criminal proceedingsconducted in violation of this fundamental right. Whether or not theVienna Convention rights are human rights is not a matter that thisCourt need dccide. The Court would, howevcr, observe that neither thetext nor the object and purpose of the Convention, no r any indication inthe travaux prkpnraloires, support the conclusion that Mcxico drawsfrom its contention in that regard.

125. or these reasons, Mexico's fourth and fifth submissions cannotbc upheld.

126 The reasoning of the Court on the fifth submission of Mexico isequally valid in relation to the sixth submission of Mexico. In elabo rationof its sixth submission, M cxico contends tha t,

As an aspcct of reslitutio in inlegrum cx ico is also entitled toan order that in any subsequent criminal proceedings against thenationals, statements and confessions obtained prior to notificationto the national of his right to consular assistance be excluded.

exico argues that The cxclusionary rule applies in both common lawand civil law jurisdictions and requires the exclusion of evidence that isobtained in a manner tha t violates du e proecss obligations , and on this

basis concludes that

Thc status of the exclusionary rulc as a general principle of lawpermits th Court t order that the United States is obligated toapply th is principle in respect of statements and confessions given toUnited States law enforcement officials prior to thc accused Mexicannationals being advised or their consular rights in any subsequentcriminal proceedings against thcm.

127. The Court does not consider that it is necessary to enter into anexam ination of thc merits of the contention advanced by Mexico tha t theexclusionary rule is a general principle of law under Article 38 1) cJ

of the Statute of the C ou rt. The issue raised by Mexico in i ts sixthsubmission relates to the qucstion of what legal conscquences flow fromthe breach of the obligations under Article 36, paragraph 1 questionwhich the C ou rt has already sufficiently discussed above in relation to thefourth and the firth submissons of Mexico. Th e C ou rt is of the view thatthis qucstion is one which has to be examined under the concretc circum-stances o f each case by the United States courts concerned in the process

of their reviewand

reconsideration. F o r this reason, the sixth submissionof Mexico cannot be 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



Slaleh of its international obligatio ns under Article 36of the Vienna Con -

vention, the Fact remains t ha t such breachcs have been com mitted , as theCou rt has found and it is thus incumben t upon the Co urt t o specify whatremedies are required in order to redress the injury done to Mexico andto its nationals by the Unitcd States through non-compliance with thoseinternational obligations. As has already been observed in paragraph 120,the Court in the LaGrand Judgment stated the gencral principle to beapplied in such cases by way of a remedy t o redress an injury of this kindI.C J Reports 2001, pp. 5 3-514, para. 125).

129. In this regard, Mexico's seventh submission also asks ~ h c our tto adjudge and declare:

That to t hc extent that ny of the 52 convictions o r senlcnces arenol annulled, the United States shall provide, y means of its ownchoosing, meaningful and effective review and reconsideration of theconvictions a n d sentences of thc 52 nationals, and that this obliga-tion c nnot be satisfied by means of clemency proceedings or i F anymunicipal law rule or doctrine [that fails to attach legal signihc nce

to an Article 36 I ) violation] is applie d.

130. On this question of review and reconsideralion , the Un itedStatcs lakes the position th at it has indeed conformed its conduct t o theLacrand Judgment. In a further elaboration of this point, the UnitedStates argues that [tlhe Co urt said in LaCrtrnd tha t lh e choice of meansfor allowing the review and reconsideration il called For 'must be left' tothe Un ited States , but tha t Mex ico would not leave this choice to theUnited States hut have the Court undertake the review instcad anddecide at once thal the breach rcquircs the conviction and sentence to bc

set aside in each case .131. In stating in its Judgment in the LcrGrand case that the United

States 01 Arncrica, by trn rms o f i l s own choosing shall allow the reviewand reconsideration of t he conviction and sentence I.C..J. Reports2001, p. 16, para. 128 (7); emphasis added), the Court acknowledged

t ha t the concrete modalities for such review and reconsideration shouldbe left primarily to the United States. It should be underlined, howcvcr,th at this freedom in the choice of means for such review and reconsidcra-tion is not without qualification as he passage of the Judgrncnt quotedabov e rnakcs abu nd ant ly clear, such review and reconsideration has to becarried out by taking account of the violation of the rights set forth inthe Convention I .C J. Rcporls ZOUJ p. 514, para. 125); including, inparticular, the question of lhe lcgal consequences of the violation uponthe criminal procccdings tha t have followed the violation.

132. Thc United States argues 1) that the Cou rt's decision in LclGrand

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 rcview, the Court necessarily implied that one

legitimate result o f th at process might be a conclusion th at th e convictionand scntcnce should stand ; and 3) that the relief Mexico seeks in this



case is flatly inconsistent with th Judgment in LaGrand: it seeks pre-

cisely the award of a subs tant ive outcome tha t the Lacrand Cour tdeclined to provide .

133. However, the C our t wishes to po int ou t that the current situationin the United States criminal procedu re, a s explained by the Agent at t h chearings, is that

If lhc derend ant alleged at trial th at af uilure of consular informa-tion resulted in harm to pclrtiouhr right essen~iul I a fair frial, anappeals court can review how rhe lower courl handled that claim ofprejudice ,

but that

I j the for ign nalional did not r ise his Arlrcle 6 clcrirr?ut triul

he may face proceduraI constraints [i.e., the application of the pro-cedural d efau lt rule] on raising th at particular claim in direct o r col-lateral judicial appeals (emph asis added).

s a result, a d a i m b sed on the violation of Article 36, paragraph I , of

the Vienna Con vention, however m eritorious in itself, could be barred inthe co urts of the U nited States by the operation or the procedural defaultrule (see paragraph 11 above .

134. I t is n ot sufficient for the United States to argue tha t [wlhateverlabel [the Mexican defendant] places on his claim, his right ust andwill he vindicated if il is r ised in some form a t trial (emphasis added ),and tha t

In that way, even though a failure to label the cornpIaint as abreach of the Vienna Convention may mean that he has lechnically

speaking forfeited his right to raise this issue as a Vienna Conven-tion claim, on appeal that failure would not ba r him from independ-ently asserting claim t l ? a ~ e was prejudiced becuusr he lucked hiscritical protection needed for fair tr ial . (Emphasis adde d.)

The crucial point in this situation is that, by the operation of theprocedural default rule as it is applied at present, the defendant is

cffcclively barred from raising the issue of the violation of his rights

under Article 36 of the Vienna Convention and is limited to seeking thevindication of his rights under thc Unilcd States Constitution.

135. Mexico, in the latter part of i ts seventh submission, has statedth at this obligation [of providing review nd reconsideration] can no t bc



satisfied by means of clemency proceedings . Mexico elaborates this

point by arguing first orall Ihat the United States's reliance on clemencyproceedings is wholly inconsistent with its obligation to provide a

rcmedy as that obligation was found by this Court in LaC ratnf . Morespecifically, Mexico contends

"Firs ,t is clear that the Court's direction to Ihc United Statcs in

LuGrund clearly conteinplated that 'review and reconsideration'would be carried out by judicial procedures

Secmrsrl the Court was fully aware that the LaGrand brothers had

received a clemency hearing, during which the Arizona PardonsBoard took into account the violation of their consular righls.Accordingly, the Court determined in LuGrund that clcmcncy reviewalonc did not conslitutc t h c rcquired 'review and reconsideration'

Finully t he Court specified that the United States must 'allow thereview and reconsideration of the conviction lrn sentence by takingaccount of the violation of the rights set forth in the Convcnlion'it is a basic matter of U.S. criminal procedural law that courtsrcvicw convictions; clemency panels do not. With the rare exception

of pardons based on actual innocence, the focus of capital clemencyreview is on the propriety of the sentence and not on he underlyingconviction.

Furthermore, Mexico argues that t he clemcncy process is in itself anineffective remedy to satisfy the international obligations of thc Unitcd

States. I t concludes: clemency review is standardless, secretive, andimmune 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-sentencedMexican nationals refutes the [United States] contention that clem-ency review will provide meaningful consideration of the violationsof rights conferred under Article 36 .

136 Against this contention of Mexico, the United Statcs claims thatit gives 'full effect' to the 'purposes for which the rights accorded under

[Article 36, paragraph l,] arc intended' through executive clemency . Itargucs that [tlhe clemency process is well suited to the task or pro-viding review and reconsideration . The United States explains thatClemency s more than a matter of grace; it is part o r the overall

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



Clemency procedu res are an integral part of the existing 'laws and regu-

lations' of the United States through which errors are addressed .

137. Specifically in Ihc context of the present case, the United States

contends that the following two points are particularly noteworthy:

First, these clemency proc edu res allow fo r broad participation byadvocates of clemency, including an inmate's attorn ey and the send-ing state's consular officer Se con d, these clemency officials ar enot bound by principles of procedural default , f inali ty, p~ejudicestandards, o r any oth er limitations on judicial review. They ma y

consider any facts and circumstances that they deem appropriateand relevant, including specifically Vienna Convention claims.

138. Th e C ou rt would emphasize tha t the review and reconsidera-tion prescribed by it in the LaGraiad case should be effective. Thus itshould tak[e] accoun t ol'thc violation o f the rights set for th in [Ihc] Con-vention I.C.J . Reporrs 2001 p. 516, para. 128 7)) an d guarantee th atthe violation and the possible prejudice caused by that violation will be

fully examined an d tak en into acco unt in the review and reconsiderationprocess. Lastly, review and reconsideration should be both o the sen-tence and of Ihe conviction.

139. Accordingly, in a situation of the violation of rights underArticle 36 paragraph I of the Vienna Convention, the defendant raisesh i s claim in this respcct not as a case o harm to a particular right essen-tial to a fair trial concept relevant to the enjoyment of d u e processrights under the United States Con slitution ut as a case involving th

infringement of his rights und er A rticle 36 paragraph 1 . The rights guar-anteed undcr the Vienna Convention are treaty rights which the United

States has undcrtaken to comply with in relation to t h e individual con-cerned, irrespective O he du e process rights under Un ited States consti-tutional law. In this rcgard, the Court would point out that what is

crucial in the review a nd reconsideration process is the existence of a pro-cedure which guaranlccs that full weight is given to thc violation of therights set forth in the Vienna Convention, whatever may be the actualoutcome of such review and reconsideration.

140. s has been explained in paragra phs 28 to 134 above, the Co urts of the view that, in cases where the breach of the individual rights of

Mexican nationals undcr Article 36 paragraph 1 h) ,of the Conventionhas rcsultcd, in the sequence of judicial proccedings tha t has followed, inthe individuals concerned being subjected to prolonged detention o r con-victed and sentenced to severe penalties, the legal consequences of thisbreach have to be examined and taken into account in the course of



review a n d reconsideration. T h e .Court considers that t is the judicial

process that is suiled to this task.

141. he Court in the LaCrcrn case Ieft to the United States thechoice of mcans as to how review a n d reconsideration should be achieved,especially in Ihe light of the procedural defaull rule. Nevertheless, theprcmisc on which the C ourt proceeded in tha t case was tha t the processof review and reconsideration should occur within the overall judicialproceedings relating to the individual defendant concerned

142. A s regards the clemency procedure, th c Cou rt notes that this per-forms an important function in thc administration of criminal justice in

the United States and is " thc historic remedy fo r preventing m iscarriagesof justice whcrc judicial process has been exhausled" I - ler rera v. Collins5 6 US 390 (1443) at pp. 41 1-412 . The Court accepts that executivecIcmency, while not judicial, is an integral p ar t of the overall scheme forensuring justice an d fairness in thc legal process within the United Sla lescriminal justice system. It must, however, poin t o ut th at w hat is at issuein the present case is not whcther executive clemency as an institution it;o r s not an integral part of the "existing laws and regulations of theUnited States", but whether the clemency process as practised within th ecrirnina justice systems of different stales in the United S tates can, in an dof itself, qualify as an appropriate means for undertaking the effective"review and reconsideration of the conviction and sentence by takingaccount o f the v iolation of the rights set Sorlh in the Convention", as theCourt prescribed in the LaGrrrnd Judgment I.C J. Rr.porl.5 2001 p 514para 125).

143 It may be true, as the United Stalcs argues, that in number of

cases "clemency in fact results in p ard on s of convictions as well as com-mutat ions of senlences". In that sense and to that extent, it might beargued that the facts demonstrated by the United Stalcs testify to adegree of effectiveness of thc clemency procedu res as a means of relieving

defendants on death row rrom cxccution. Th e C ou rt notes, howcvcr , tha tthe clemency process, as currently practised within the Unitcd States

criminal justice system, does not appear to meet the requirerncntsdescribed in paragraph 38 above and that it is therefore not sufficient initsclf' to serve as an appropriate means of "review an d reconsideration" asenvisaged by the Co urt in the LaGrand case. The Co ur t considers never-theless that appropriate clemency procedures call supplement judicialreview and reconsideration, in particular where the judicial system hasfailed to take duc account of the violation of t h c rights set forth in theVienna Convention, as has occurred in the case of the three Mcxtcan

nationals referred to in paragraph 114 above.



144. Finally, the Court will consider the cighth submission of Mexico,

in which it asks the Court to adjudge and declare:That the [United States] shall cease ils violations of Article 36 of

the Vienna Convention with regard to Mexico a n d its 52 nationalsand shall provide appropriate guarantees and assuranecs that itshall take measures sufficient to achieve increased compliance withArticle 36 I ) and to ensure compliance with Article 36 (21.'

145. In th is respect, Mexico recognizes the efforts by the U nited Stares

to raise awareness of consular assistance rights, through the distributionof pamphlets and pocket cards and by the conduct of' training pro-grammes, and that the measures adopted by the United Slates to thatend were noted by the Court in i ts decision in the LuGrund case I .C J

Reports 2001 pp 51 1-513 paras. 121, 123-1241, Mcxico, however, nolc swith regret that

the United States programme, whatever its components, hasproven ineffective to prevent the regular and continuing violationby its competent authorities of consular notification and assistancerights guaranteed by Article 36 .

146 In particular, Mexico claims in relation to thc violation of thc

obligations under Article 36, paragraph I , of the Vienna Convention:

F i rs t , competent authorities of the United States regularly fail toprovide the timely notification required by Article 36 (1) h) andthereby lo [ s i c ] frustrate the cornrnun ~cation and access conlem-plated by Article 36 (1) u) and the assistance contemplated by

Article 36 1 ) ( u ) These violalions continue nolwithstanding theCourt's judgment in LaCrund and the programme described there.

Mexico has dernonstratcd, moreover, that the pattern o r regularnon-compliance continues. During the first half of 2003, Mexico hasidentified at least one hundrcd cases in which Mexican nationalshave been arrested by competent authorities of the United States forserious felonies but not timely notified of their consular notificationrights.

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

Second, courts in the United States continue to apply doctrinesof procedural default and non-retroactivity tha t prevent thosc courtsfrom rcaching the merits of Vienna Convention claims, and thosecourts that have addressed the merits of those claims (because noprocedural b ar applies) h ve repeatedly heId that no remedy is avait



able for a breach of the obligations of Article 36 Likewise, the

United States' reliance on clemency procccdings to meel LaGrirndsrequirement of review and reconsideration represents a deliberatedecision to allow these lcgal rules and doctrines to continue to havetheir incvitable effect. Hcnce, the Unitcd States continues to breachArticle 36 2) by failing to give full effect to the purposes for whichthc rights accorded under Article 36 are intended.

147. Th e Unilcd States contradicts this contention of Mexico by claim-ing that its en'orts to imp rove the conveyance of information about con-sular notification are continuing unabated and are achieving tangibleresults . Tt con tend s tha t Mexico Fails to establish a 'regular an d con-tinuing' pattern of breaches of Article 36 in the w a ke of LuGrand .

148. Mexico emphasizes the necessity of requiring the cessation of thewrongful acts because, it alleges, the violation of Article 36 with regard toMexico a n d its 52 nationals still continucs, The Court considers, how-ever, that Mexico has not established a continuing violation of Arlicle 6

of the Yiunna Con vention with respcct to the 52 individuals rekrred to in

its final submissions; it cannot therefore uphold Mexico's claim seekingcessation. The Cour t would moreover point out that iwasmuch as these52 individual cases are at various stages of criminal proceedings beforethe United Statcs cou rts, they ar e i11 the slat e of pcndente lire a n d thcCvurt has already indicated in respect of them what it regards as theappropriate remedy, namely review and reconsideration by reference tothe breach of the Vienna Convention.

149. T he Mexican request for guarantees of non-regctilion is based onits contention that beyond these 52 cases there is a regular and continu-

ing pattern of breaches by the United States of Article 36. I n thisrespect, th e C ou rt observes th at thero: is n o evidcnce properly before itthat would establish a gcneral pattern. While it is a matter of concerntha l, even in the wake of the LaCrcrnd Judg men t, there remain a substan-tial numbcr of cases of f'ailure to carry o u t the obligation to f ~ ~ r n i s hon-sular information to Mexican nationals, the ourt notes that the UnitedStates has been ma king considerable efforts to ensure th at its law enforce-ment authorities provide consular information to every arrcsted personthey know or havc reason to bclieve is a foreign national. Especially atthe stage of pre-trial consular information, it is noteworthy that theUnited States has been making good faith efforts to implement the obli-gations incumbent upon it undcr Article 36 paragraph 1 of the ViennaConvention, through such measures as a new outreach programmelaunched in 1998, including th dissemination t o fcdcral, state and localauthorities of the State Department booklet mentioned ahovc in para-



graph 63. The Court wishes to recall in this context what it has said in

paragraph 84 ab o ut efforts in some jurisdictions to provide the informa-tion un der Article 36 paragraph l b J , n parallel with thc reading of theMiranda rights .

150 The Cou rt would further note in this regard that in the LaGrandcase G erm any sought, int r alia, a straightforward assurance that theUnited States will not repeat its unlawfuI acts (I.C.J Rtports 2001p. 511, para. 120 . With regard to this gcneral demand for an assuranceof non-repetition, the Court stated

lf a State, in proceedings before this Court, repeatedly refers to

substantial activities which i t is carrying o ut in ord er to achieve com-pliance with certain obligations under a treaty, then this expresses a

commitment to follow through with the efforts in this regard. Thcprogramme in question ce ~t ain ly ann ot provide an assurance thatthere will never again be a failure by the U nited Slates to observe theobligations of notification undcr Article 36 ol the Vienna Conven-

tion. But no State could give such a guarantee and Gcrmany doesnot seek it. Th e Co urt considers t ha t the commitment expressed bythe United States to e nsure implementation of the specific mea suresadopted in performance o f its obligations under Articlc 36 para-graph b), must be regarded as meeting Germany s r qu st for a

general assurance of non-repetition. (I.C . eports 2001 pp. 2-513 pard 124.

The Court believes that as Car as the request of Mexico or guaranteesand assurances of non-repetition is concerned, what the Court stated in

this passage of thc LaGrand Judgm ent rem ains applicable, and thereforemeets that request.

151. The Co urt would now re-emphasize a point of impo rtance. In thepresent case, it has had occasion to examine the obligations of the Un itedStates under Article 36 of the Vienna Con vention in relation t o Mexicannationals sentenced t o death in the United States. Its findings as to theduty of review and reconsideration of convictions and sentences havebeen directed t the circurnstancc of severe penalties being imposed onforeign nationals w h o happen lo be of Mexican nationality. To avoid anyambiguity, it should be made clear that while what the Court has statedconcerns the Mexican nationals whose cases have bcen broughl bcfore itby Mcxico, the Court has been add ressing th e issues of principle raised in



70 AVENA AND UTH RS ( ~ U D G M E N T )

the course of the present proceedings from thc viewpoint or the general

applicalion of the Vienna Convention, and there can bc no question ofmaking an a corz rurio argument in respect of any of the Court's findingsin the present Judgment. In other words, the fact that in this case theCou rt's ruling has concerned only Mexican n ationals cannot be taken toimply, that the conclusions reached by it in the present Judgment do notapply to othe r foreign natio nals finding themselves in similar situatio ns inthe United Slates

152. By its Ord er OF February 2003 the Co urt, acting on a request by

Mexico, indicated by way of provisional measure th at

The United States of America shall take a41 measures neccssaryto ensure that Mr. Cksar Roberto Fierro Rcyna, Mr. Roberto MorenoRamos and M r. Osvaldo Torres Aguilcra are not exccuted pendingfinal judg me nt in these proceedings I . C J Reports 2003, pp. 91-92,para. 59 1)) (see paragraph 21 above).

Th e Order of 5 February 2003, according to its terms an d to Article 4 o rthe Statute, was effective pending final judgment, and the obligations of

the United States in that respect are, with effect from the date of thepresent Judgment, replaced by those declared in this Judgment. TheCourt has rcjccted M exico's subm ission thal, by way of re.stirutio in i n r p -

gruwa, the United States is obliged to annul the con vi cti o~ ~snd sentencesof all of the Mexican nationals t h e subject of its claims (see above, para-graphs 1 15-125 . The Court has found that, in relation to thesc three per-

sons among ~ t h c r s ) , he United States has committed breaches of itsobligations under Article 36, paragraph 1 b ) , of the Vienna Conventionand Arlicle 36, paragraphs I a) a n d c ) , of that Convention; moreover,in respect of those three persons alone, the United States has also

committed breaches of Article 36, paragraph 2, of t he said Convention.The review and reconsideration of conviction and sentencc required byArticle 36, paragraph 2, which is the appropriate remedy tbr breaches ofArticle 36, paragraph 1, has not been carried out. Thc Court considcrsthat in these three Cases it is for the United Statcs to find a n a pp ro pri ateremedy having the nature of review and reconsideration according to thecritcria indicated in paragraphs 138 e i seq of the present Judgment.

153. For these reasons,

TI COURT

I ) By thirteen votes to two,



Rejects the objection by the United Mexican States lo the admissibility

of the objections presented by the United States of America to the jur is-diction of the Cou rt and the admissibility of I h e Mexican claim s;

I N FAVOUR President Shi ; V ~ c e -resident Ranjcva ; Judges Guillaume,Koroma, Vereshchetin, Wiggins, Kooijmans, Rezek, Al-Khasawneh,Buergenthal, Elaraby, Owada, Tomka;

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

2) Unanimously,

REJ~L' I .Fh e four o b j ~ t i o n s ~ b yhe United States of America to thejurisdiction of the C o u r t ;

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,

Fin that, by not informing, w ithout dclay upon their detent ion, the51 Mexican nationals referred to in paragraph 106 1) above of theirrights under Article 36, paragraph h ) , of the Vienna Convention on

Consular Relat ions of 24 April 1463, the United Stales of Americabreached the obligations incumb ent upon it under t ha t subparagraph ;

I N F VOUR Presidenl Shi ; Vice-Presidenl Ranjeva ; Judges Guillaume,Koroma, Vcrcshchetin, Higgins, Kooijmans, Rezek, Al-Khasawnch,Buergenthal, Elaraby, Owada, Tomka udge ad hoc Sepulveda;

A G A I N S T Judge Parra-Aranguren

5 ) By fourteen voles lo one,

Finds that, by not notifying the appropriate Mexican consular postwithout delay of the detention of the 9 Mexican nationals referred to inparagraph 106 2) abovc and thereby depriving the United MexicanStates of the right, in a timely fashion, to render the assistance providedor by the Vienna Convention to the individuals concerned, the United

States of America breached the obligations incumbent upon i t underArticle 36, paragraph 1 b)

IN FAVOUR President Shi ; Vice-President Ranjeva ; Judges Guillaume,Koroma, Vcreshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh,Buergenthal, Elaraby, Owada Tomka ; Judgo ad hoc Sep6lvcda;

c rNsr Judge Parra-Aranguren ;

6) By fourteen votes to one,Finds that , in relation to th e 49 Mexican nationals referred to in para-

graph 106 3) above, the United States of America deprived the UnitedMexican States o f t h e right, in a timely fashio n, to com mu nicate with andhave access to those nat ionals an d to visit them in detention, and thereby



breached the obligations incurnbenl upoil it ui~derArticle 36, para-

graph u ) and ( c ) , of the Convention ;

I N FAVOUR Prcsicitat Shi ; Vice-Presicieris Kanjcva ; Jurl gps CuiElaumeKoroma, Vereshchetin Higgins, Kooijmans Rezek, Al-Khasawneh,Bucrgenthal, Elaraby, O wada, T o m k a ; Judge ad hoc. Seplilveda;

AGAINST: Judgc Parra-Aranguren ;

7) By fourteen votes to one

Finds that in relacion to lhc 34 Mexican nationals referred to in para-

graph 106 (4) above, the Uni ted States of America deprived the United

Mexican States of the right int

timely fashion to arrange for legal rep-resentation of those nationals and thereby breached the obligationsincumbenl upon it under Article 36, paragraph I ( c ) , of the Convcn tion ;

N FAVOIJR Prus idcn~ Shi ; Vice-I rcsiden t Ranjeva ; Judges CuillaumeKoroma, Vereshchelin, Higgins, Kooijmans Rczek Al-KhasawnehBuzrgenlhal, Elaraby, Owada T o m k a ; Judge ad hoc Sep~ilveda;

AGAINST Judge Parra-Aranguren;

8) By fourteen voles to one

Fi~ ids hat by n o t permitting the review and reconsideration in thelight or Ihc rights set for th in the Convention of the conviction and sen-tences of Mr. Cesar Roberto Fierro Keyna Mr. Roberlo Morcno Ramosand Mr. Osvaldo Torres Aguilera after the violations referred to in sub-paragraph 4) above had been established in respect of those individualsthe United Slales o r America brcached the obligations incumbent upon itunder Article 36 paragraph 2, of the Conve~~t ion;

IN I AVOUK : PrexiIEnt Shl ; Vice Preridenr Ranjeva ; Judges CuillaumeKoroma, Vcreshchctin, IZiggins Kooijmans, Rezek, Al-Khasawneh,Buergenthal, Elaraby, Owada, To~nka;udge ad hoc Sep~i lveda;

AGAINST : Judge Parw-Arangurcn ;

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: conviclions and sentences of the

Mexican nationals referred to in subparagraphs 41, 51, 6) and 75 aboveby taking account both of the violation of the rights set forth in Article 36ot thc Convention and of paragraphs 138 to 141 of this Judgment;

IN FAVOUR: P r e ~ i d e l ~ t hi ; Vice-Pre .~ iden~ anjeva; Judges GuillaumcKoroma Vereshchetit~ Higgins Kooijmans, Rezek, Al-Khasawneh,Buergenthal , Elaraby, Owada, Tomka ; J n . dg~ d hoc Sepulveda ;

AGAINST: Judge Parra-Aranguren ;



7 VEN A N D OTIdERS (J UDGMENT)

10) Unanimously

akes note of the commitment undertaken by the United States ofAmerica to ensure implementation or the specific measures adopted inperformance of its obligations under Article 36 paragraph 1 b ) , or t hcVienna Co nve ntion ; and find.s tha t this comm itment m ust be regarde d as

meeting the request by the United Mexican States for guarantees andassurances of non-repetition;

I 1 Unanimously

Finds that should Mexican nationals nonetheless be sentenced tosevere penalties with out their rights undcr Article 36 paragraph 1 h ) ,

of the Convention having been respected t h c United Slates of Americashall provide by me ans of its ow11 choosing review and reconsiderationof the conviction and sentence so s to allow full weight to be given to

the violation of the rights set forth in the Conve ntion taking account of

paragraphs 138 to 141 of this Judgment.

Do ne in English an d in Fren ch the English text being authoritativeat the Peace Palace Thc Hague this thirty-first day of March two

thousand an d four in three copies one of which will be pl ced in thc

archives of the Court and the others transmitted to the Government ofthe United Mexican States and the Government of the United States ofAmerica respectively.

Signed) S H I iuyong

President.

( ignell) Philippe COUVREUR,

Registrar.

President Sr ~rand Vicc-President RANIEVAppend declarations to theJudgment of the Court; Judges VERESHCHETIN,ARRA-ARANGURENnd

TOMK nd Judge ad hoc SEPL LVEUAppend separate opinions to theJudgment of the Court.

lniriallcd) J.Y.S.

avena icjdecision

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