AVENA AND OTHER MEXICAN

NATIONALS (MEXICO V. UNITED

STATES OF AMERICA)
M A R I A M A L H A S H M I , N O U R , V I C T O R I A
01 Lawsuit+Articles 02 Jurisdiction

Application Judgement/Order
03 04
LAW FIRM

JANUARY 9, 2003

Mexico filed a lawsuit against the US on January 9, 2003, alleging that

the US had violated Articles 5 and 36 of the Vienna Convention on
Consular Relations, which was established on April 24, 1963.
 Facts of the case + Important Procedural History

Mexico brough a claim before the ICJ Mexico’s central claim was that
alleging that the rights of 52 nationals “Consular notification constitutes a
had been violated under the Vienna basic component of due process by
Convention, more specifically Article ensuring both the procedural equality
36 pertaining to consular notification. of a foreign national in the criminal
All 52 nationals were in different stages process and the enforcement of the
of the criminal procedure to ultimately other fundamental due process
face a death sentence. guarantees to which that national is
entitled”
Mexico also requested provisional
measures in January 2003 to ensure that The 52 nationals were arrested in the
3 of those 52 nationals who were period between 1979 and 2004 and
already on death row were not killed were distributed along different states
until the ICJ made the judgment on the including California (28), Texas (15),
merits. The provisional measures were Illinois (3), Arizona, Arkansas, Nevada,
granted Ohio, and Oregon.
 VCCR: VIENNA CONVENTION ON
CONSULAR RELATIONS
What is the general aim of the convention?
ARTICLE 5
>Safeguarding the interests and citizens of the sending state,
>Fostering relations between the sending and receiving states,
>Reporting on conditions in the receiving state,
>Offering support and documentation to nationals.
>The need for those who benefit from consular privileges and immunities to
obey the rules and laws of the state they are visiting and refrain from meddling
in its domestic affairs.
ARTICLE 5
A B
Protecting in the receiving State the interests of the Furthering the development of commercial, economic, cultural
sending State and of its nationals, both individuals and scientific relations between the sending State and the
and bodies corporate, within the limits permitted by receiving State and otherwise promoting friendly relations
international law; between them in accordance with the provisions of the present
Convention;

C D
Ascertaining by all lawful means conditions and Issuing passports and travel documents to nationals of the
developments in the commercial, economic, cultural sending State, and visas or appropriate documents to persons
and scientific life of the receiving State, reporting wishing to travel to the sending State;
thereon to the Government of the sending State and
giving information to persons interested;
ARTICLE 5
E F
Helping and assisting nationals, both individuals and Acting as a notary and civil registrar and in capacities of a
bodies corporate, of the sending State; similar kind, and performing certain functions of an
administrative nature, provided that there is nothing contrary
thereto in the laws and regulations of the receiving State;

G H
Safeguarding the interests of nationals, both Without prejudice to their privileges and immunities, it is the
individuals and bodies corporate, of the sending State duty of all persons enjoying such privileges and immunities to
in cases of succession mortis causa in the territory of respect the laws and regulations of the receiving State. They also
the receiving State, in accordance with the laws and have a duty not to interfere in the internal affairs of that State."”
regulations of the receiving State;
RIGHTS ENSHRINED IN ARTICLE 36
Guaranteeing foreign persons' ability to contact and see consular representatives from their own country while
they are being held or imprisoned in a foreign nation.

Safeguard the rights and interests of those who are detained and permits consular officials to offer support, such
as setting up legal counsel.

The receiving state's consular mission must be notified of the arrest or detention, and the host nation must
provide consular access and contact.

Consular aid can protect foreign persons' legal rights and welfare during a legal proceeding conducted overseas.
ARTICLE 36
CRITICISM: ARTICLE 36

Supreme Court in Breard v. Greene acknowledged the individual rights of foreign nationals.

Procedural Default Doctrine in US Law

Prejudice Test in courts

 Claims of Admissibility and Jurisdiction

Jurisdiction of the Court Admissibility

The U.S. argued against the jurisdiction of the The U.S. argued that Mexico’s claims where
court on the grounds that: inadmissible because...

1. Mexico’s submission encouraged the

U.S.A. 1. Mexico was trying to use the ICJ as
ICJ to involve itself in the U.S.
domestic criminal affairs and court of appeal
procedures 2. Local remedies have not been
2. Article 36 of the Vienna Convention exhausted yet
does not constrain countries from 3. Some of the detained Mexican
making arrests as well as carrying on nationals were also U.S. nationals
with their criminal procedures 4. Mexico had knowledge of some of
3. The ICJ does not have the jurisdiction the cases long before sentencing
to vacate sentences given by domestic procedures started
courts nor to mandate remedies 5. Mexico has no right to hold the U.S.
4. The ICJ has no jurisdiction to to standards that it does not follow
determine whether consular itself.
notification is a human right
 Court’s Examination of the Claims
Jurisdiction of the Court Admissibility
While Art. 79 of the Rules of the Court states
1. Not upheld that claims of this nature must be submitted
1. Not upheld
a. U.S. Constitutional Law states that “all at most 3 months after the submission the a. Matter of merits, will be looked
Treaties made, or which shall be made, Memorials, and the U.S. submitted their into later
claims 4 months after the Court decided to
under the Authority of the United States, 2. Not upheld
include them still because they would have to
shall be the Supreme Law of the Law” be looked at in the merits anyways. However, a. Art. 36 (1) does not imply a duty
b. U.S. is signatory to the Vienna Convention because of their lateness, the Court was not to exhaust local remedies before
+ Optional Protocol obliged to examine them as preliminary
invoking it.
objections (in limine) before dealing with the
2. Not upheld merits of the case. 3. Not upheld
a. Mexico argued that failure to follow Art. 36 a. Concerning the merits
was a violation of due process 4. Not upheld
b. The court would examine it in the merits a. International law does not lay
3. Not upheld down any specific time-limit in
a. If the Court has jurisdiction to interpret the that regard
convention, it doesn't need additional 5. Not upheld
jurisdiction to provide remedies. a. The nature of the convention does
4. Not upheld not allow claims of such nature
a. The question is a matter of interpretation of
the Vienna Convention, for which the ICJ
has jurisdiction
 Judgement
Weighing in on the case

Presidenl Shi ;
Vice-Presidenl Ranjeva ;
Judges:
Guillaume,
Koroma,
Vcrcshchetin,
Higgins,
Kooijmans,
Rezek,
Al-Khasawnch,
Buergenthal,
Elaraby,
Owada,
Tomka;
Judge ad hoc Sepulveda;
Judge Parra-Aranguren :
 On the Merits
Article 36, paragraph 1
On the question of
“Without delay”
dual nationality
U.S. argued that it was not obliged to inform Mexico argued that the U.S. showed an
Mexico for some of the nationals detain as the inconsistent pattern of following its obligation
U.S. had reason to believe they also were U.S. of consular notification, in some cases taking
nationals. as little as 40 hours after the arrest, while in
Mexico satisfied the burden of proof for all other cases taking 4 years after the detainees
52 cases by providing birth certificates + had already been sentenced to death.
evidence that detainees had not been case by case evaluation
informed of their rights under Art. 36 Evaluation of what “without delay” means
U.S. believed it was still Mexico’s burden
Not immediate, but certainly as soon as
to prove that some of the detainees were
possible
also U.S. nationals
47 cases where “without delay” was
Court ruled otherwise.
“as regards to the 52 persons listed in
violated
paragraph 16 above, the United States See full specifics in p. 46 para 106
had obligations under article 36,
paragraph 1(b)”
On the Merits
Article 36, paragraph 2
On the question of remedies –
“review and reconsideration”

The court found that the U.S. had effectively breached

Art. 36, paragraph 2 only in 3 cases where the
conviction and sentencing had become final. For the
other 49 cases it decided that because remedy was still
a possibility, it would be premature to rule that the
U.S. was in breach.
 LEGAL CONSEQUENCES
For the fourth, fifth & sixth of Mexico’s submission:

Mexico asks the court to adjudicate and declare:

The court rejects Mexico's fourth, fifth, and sixth submissions regarding the
specific remedies it sought for the breaches of Article 36.
 LEGAL CONSEQUENCES
Mexico’s Seventh Submission
Mexico asks the court to adjudicate and declare:

ICJ recognized the United States' authority to determine the specific methods and
procedures for conducting the review and reconsideration process for convictions and
sentences related to violations of the Vienna Convention. However, US freedom is
limited by certain qualifications.
Takes into account the violation of rights under the VCCR .
Takes into account the legal consequences of breaches (eg: prolonged detention,
severe penalties)
Procedural default rule and clemency procedure do not meet the requirements
 LEGAL CONSEQUENCES
Mexico’s eighth Submission:
Mexico asks the court to declare that:

Court said that the commitment of the US to the obligations assigned under Article 36
suffice as a form of reassurance to Mexico.
Final Opinions + Votes
Final Opinions + Votes