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[p.77]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73, 74 and 75 of the Rules of Court,
Having regard to the Application filed in the Registry of the Court on 9
January 2003, whereby the United Mexican States (hereinafter "Mexico")
instituted proceedings against the United States of America (hereinafter the
"United States") for "violations of the Vienna Convention on Consular
Relations (done on 24 April 1963)" (hereinafter the "Vienna Convention")
allegedly committed by the United States,
Makes the following Order:
1. Whereas in its aforementioned Application Mexico bases the juris-[p
78]diction of the Court on Article 36, paragraph 1, of the Statute of the
Court and on Article I of the Optional Protocol concerning the Compulsory
Settlement of Disputes, which accompanies the Vienna Convention on Consular
Relations (hereinafter the "Optional Protocol");
2. Whereas the Application states that 54 Mexican nationals are on death row
in the United States; whereas it is alleged that these individuals were
arrested, detained, tried, convicted and sentenced to death by competent
authorities of the United States following proceedings in which those
authorities failed to comply with their obligations under Article 36,
paragraph 1 (b), of the Vienna Convention; whereas it is contended that this
provision requires that the authorities of the receiving State inform
without delay any national of another State detained by those authorities of
his right to contact his consulate, that, if the detained national so
requests, it further requires those authorities to inform without delay the
nearest consular post of the State concerned of the detention, and lastly
that it obliges those authorities to forward without delay any communication
addressed to the consular post by the detained individual; and whereas it is
alleged that, in the cases of 49 of the detained Mexican nationals, the
competent authorities of the United States made no attempt at any time to
comply with Article 36 of the Vienna Convention, that in the cases of four
other detained individuals, the required notification was not made "without
delay", and finally that in one case, while the detained national was
informed of his rights, it was in connection with proceedings other than
those involving capital charges against him;
3. Whereas in its Application Mexico states that "the rights conferred by
Article 36 . . . are not rights without remedies" and that in particular, as
the Court determined in the Judgment delivered on 27 June 2001 in the case
concerning LaGrand (Germany v. United States of America):
"If the receiving State fails to comply with Article 36, and the sending
State's national has been subjected to 'prolonged detention or convicted and
sentenced to severe penalties', . . . the receiving State must 'allow the
review and reconsideration of the conviction and sentence by taking account
of the violation of the rights set forth in the Convention'";
4. Whereas Mexico alleges that various rules of United States municipal law,
specifically "the rule of procedural default, the need to show prejudice and
the interpretation of the Eleventh Amendment of the United States
Constitution followed by the United States tribunals", rendered ineffective
all actions brought before state or federal courts in the United States
seeking relief for the violations of the Vienna Convention, whether those
actions were brought by Mexican nationals or by Mexico itself; [p 79]
5. Whereas in the Application Mexico explains that it has made numerous
demarches to the competent authorities of the United States with a view to
vindicating its rights and those of its nationals, but that these
authorities have consistently refused to provide relief adequate to put an
end to these violations and to ensure Mexico that they will not reoccur in
the future;
6. Whereas Mexico further notes that the diplomatic demarches which it has
made over the last six years to the executive branch of the federal
Government of the United States and to the competent authorities of the
constituent States have been ineffective; whereas, despite many diplomatic
protests during that period, those authorities carried out the execution of
several Mexican nationals whose rights under the Vienna Convention had been
violated; and whereas the only response ever received by Mexico from those
authorities has consisted of formal apologies made after the executions;
7. Whereas in its Application Mexico maintains that the United States, by
breaching its obligations under Article 36, paragraph 1 (b), of the Vienna
Convention, prevented Mexico from exercising its rights and performing its
consular functions pursuant to Articles 5 and 36 of the Convention, which
"could have prevented the convictions and death sentences"; whereas it
contends that the steps taken by the United States to improve compliance
with the Vienna Convention do not enable full effect to be given to the
rights established by the Convention; whereas it claims that apologies by
the United States in cases of breaches of the Convention are an insufficient
remedy; and whereas Mexico accordingly asserts that it has suffered injury,
in its own right and in the form of injury to its nationals [Application of
Mexico, para. 2], and that it is entitled to restitutio in integrum, that is
to say, to the "reestablishment of the situation which would, in all
probability, have existed if [the violations] had not been committed";
8. Whereas Mexico asks the Court to adjudge and declare:
"(1) that the United States, in arresting, detaining, trying, convicting,
and sentencing the 54 Mexican nationals on death row described in this
Application, violated its international legal obligations to Mexico, in its
own right and in the exercise of its right of consular protection of its
nationals, as provided by Articles 5 and 36, respectively of the Vienna
Convention;
(2) that Mexico is therefore entitled to restitutio in integrum;
(3) that the United States is under an international legal obligation not to
apply the doctrine of procedural default, or any other doctrine of its
municipal law, to preclude the exercise of the rights afforded by Article 36
of the Vienna Convention; [p 80]
(4) that the United States is under an international legal obligation to
carry out in conformity with the foregoing international legal obligations
any future detention of or criminal proceedings against the 54 Mexican
nationals on death row or any other Mexican national in its territory,
whether by a constituent, legislative, executive, judicial or other power,
whether that power holds a superior or a subordinate position in the
organization of the United States, and whether that power's functions are
international or internal in character;
(5) that the right to consular notification under the Vienna Convention is a
human right;
and that, pursuant to the foregoing international legal obligations,
(1) the United States must restore the status quo ante, that is,
re-establish the situation that existed before the detention of, proceedings
against, and convictions and sentences of, Mexico's nationals in violation
of the United States international legal obligations;
(2) the United States must take the steps necessary and sufficient to ensure
that the provisions of its municipal law enable full effect to be given to
the purposes for which the rights afforded by Article 36 are intended;
(3) the United States must take the steps necessary and sufficient to
establish a meaningful remedy at law for violations of the rights afforded
to Mexico and its nationals by Article 36 of the Vienna Convention,
including by barring the imposition, as a matter of municipal law, of any
procedural penalty for the failure timely to raise a claim or defence based
on the Vienna Convention where competent authorities of the United States
have breached their obligation to advise the national of his or her rights
under the Convention; and
(4) the United States, in light of the pattern and practice of violations
set forth in this Application, must provide Mexico a full guarantee of the
non-repetition of the illegal acts";
9. Whereas, on 9 January 2003, after filing its Application Mexico also
submitted a request for the indication of provisional measures in order to
protect its rights, pursuant to Article 41 of the Statute of the Court and
to Articles 73, 74 and 75 of the Rules of Court;
10. Whereas in its request for the indication of provisional measures Mexico
refers to the basis of jurisdiction of the Court invoked in its [p 81]
Application, and to the facts set out and the submissions made therein; and
whereas it reiterates in particular that the United States has
systematically violated the rights of Mexico and its nationals under Article
36 of the Vienna Convention;
11. Whereas in the request for the indication of provisional measures Mexico
states that three Mexican nationals, namely Messrs. Cesar Roberto Fierro
Reyna, Roberto Moreno Ramos and Osvaldo Torres Aguilera, risk execution
within the next six months and that many other Mexican nationals could be
executed before the end of 2003; and whereas Mexico further states that
Cesar Roberto Fierro Reyna's execution could take place as early as 14
February 2003;
12. Whereas in the request for the indication of provisional measures Mexico
notes that the Court indicated provisional measures to prevent executions in
two prior cases involving claims brought under the Vienna Convention by
States whose nationals were subject to execution in the United States as a
result of criminal proceedings conducted in violation of the Convention;
whereas it states that "there can be no question of the importance of the
interests at stake", that "international law recognizes the sanctity of
human life" and that "Article 6 of the International Covenant on Civil and
Political Rights, to which the United States is a State party, establishes
that every human being has an inherent right to life and mandates that
States protect that right by law"; and whereas Mexico states in the
following terms the grounds for its request and the possible consequences if
it is denied:
"Unless the Court indicates provisional measures directing the United States
to halt any executions of Mexican nationals until this Court's decision on
the merits of Mexico's claims, the executive officials of constituent states
of the United States will execute Messrs. Fierro [Reyna], Moreno Ramos,
Torres [Aguilera], or other Mexican nationals on death row before the Court
has had the opportunity to consider those claims. In that event, Mexico
would forever be deprived of the opportunity to vindicate its rights and
those of its nationals. As the Court recognized in the LaGrand case, such
circumstances would constitute irreparable prejudice . . .";
13. Whereas Mexico concludes that "provisional measures are therefore
clearly justified in order both to protect Mexico's paramount interest in
the life and liberty of its nationals and to ensure the Court's ability to
order the relief Mexico seeks";
14. Whereas Mexico adds in its request that "there can also be no question
about the urgency of the need for provisional measures";
15. Whereas Mexico states that, while it recognizes that the Court may [p
82] wish to leave to the United States the choice of means to ensure
compliance with the provisional measures ordered, it nevertheless requests
that the Court "leave no doubt as to the required result";
16. Whereas Mexico notes specifically in its request that "as a matter of
international law, both the United States and its constituent political
subdivisions have an obligation to abide by the international legal
obligations of the United States"; and whereas Mexico takes the view that,
"having undertaken international obligations on behalf of its constituent
political entities, the United States should not now be heard to suggest
that it cannot enforce their compliance with its obligations";
17. Whereas Mexico further states that,
"given the clarity of both international law and United States municipal
law, there can be no doubt that the United States has the means to ensure
compliance with an order of provisional measures issued by this Court
pursuant to article 41 (1) [of its Statute]";
18. Whereas Mexico asks that, pending final judgment in this case, the Court
indicate:
"(a) That the Government of the United States take all measures necessary to
ensure that no Mexican national be executed;
(b) That the Government of the United States take all measures necessary to
ensure that no execution dates be set for any Mexican national;
(c) That the Government of the United States report to the Court the actions
it has taken in pursuance of subparagraphs (a) and (b); and
(d) That the Government of the United States ensure that no action is taken
that might prejudice the rights of the United Mexican States or its
nationals with respect to any decision this Court may render on the merits
of the case";
and whereas Mexico further asks the Court to treat its request as a matter
of the greatest urgency "in view of the extreme gravity and immediacy of the
threat that authorities in the United States will execute a Mexican
citizen";
19. Whereas on 9 January 2003, the date on which the Application and the
request for the indication of provisional measures were filed in the
Registry, the Registrar advised the Government of the United States of the
filing of those documents and forthwith sent it originals of them, in
accordance with Article 40, paragraph 2, of the Statute of the Court and
with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of
Court; and whereas the Registrar also notified the Secretary-General of the
United Nations of that filing; [p 83]
20. Whereas on 9 January 2003 the Registrar informed the Parties that the
President of the Court, in accordance with Article 74, paragraph 3, of the
Rules of Court, had fixed 20 January 2003 as the date for the opening of the
oral proceedings;
21. Whereas, pending notification under Article 40, paragraph 3, of the
Statute and Article 42 of the Rules of Court by transmission, in two
languages, of the printed text of the Application to the States entitled to
appear before the Court, on 9 January 2003 the Registrar informed those
States of the filing of the Application and of its subject-matter, and of
the request for the indication of provisional measures;
22. Whereas, following the Registrar's subsequent consultations with the
Parties, the Court decided to hear the Parties on 21 January 2003 concerning
Mexico's request for the indication of provisional measures; and whereas the
Parties were so advised by letters of 14 January 2003 from the Registrar;
23. Whereas by a letter of 17 January 2003, received in the Registry on the
same day, the United States Government informed the Court of the appointment
of an Agent and a Co-Agent for the case;
24. Whereas by a letter of 20 January 2003 Mexico informed the Court that,
further to the decision of the Governor of the State of Illinois to commute
the death sentences of all convicted individuals awaiting execution in that
State, it was withdrawing its request for provisional measures on behalf of
three of the 54 Mexican nationals referred to in the Application: Messrs.
Juan Caballero Hernandez, Mario Flores Urban and Gabriel Solache Romero;
whereas it further stated that its request for provisional measures would
stand for the other 51 Mexican nationals imprisoned in the United States and
that "the application stands, on its merits, for the fifty-four cases";
25. Whereas, at the public hearings held on 21 January 2003 in accordance
with Article 74, paragraph 3, of the Rules of Court, oral statements on the
request for the indication of provisional measures were presented by the
following representatives of the Parties:
On behalf of Mexico: H.E. Mr. Juan Manuel Gomez Robledo,
H.E. Mr. Santiago Onate,
H.E. Mr. Alberto Szekely,
Ms Sandra Babcock,
Mr. Donald Francis Donovan;
On behalf of the United States: The Honorable William H. Taft, IV,
Mr. Stephen Mathias,
Ms Catherine W. Brown,
Mr. James H. Thessin,
Sir Elihu Lauterpacht,
Mr. Daniel Paul Collins;
[p 84]
and whereas at the hearings a question was put by a Member of the Court, to
which an oral reply was given;
***
26. Whereas in the first round of oral argument Mexico restated the position
set out in its Application and in its request for the indication of
provisional measures, and stressed that the requirements for the indication
by the Court of the provisional measures requested were met in the present
case;
27. Whereas Mexico has stressed that neither the apologies offered by the
Government of the United States following the execution of Mexican nationals
whose rights under the Vienna Convention had been violated, nor the review
by an executive official "as a matter of grace and not of legal right" could
represent a sufficient remedy for violations by competent authorities in the
United States of obligations arising from the Vienna Convention; that a
"meaningful 'review and reconsideration' of its nationals' claims in accord
with the Judgment in LaGrand" requires the provision of "a remedy at law";
and that only the restoration of the status quo ante, that is, the
re-establishment of the situation that existed before the violation, would
be such a remedy;
28. Whereas Mexico has insisted that, unless provisional measures are
indicated by the Court, three of its nationals, namely Messrs. Fierro Reyna,
Moreno Ramos and Torres Aguilera, risk execution in the next few months and
that many others could also be at risk of execution before the Court rules
on the merits; and whereas it accordingly contends that the condition of
urgency required for the indication of provisional measures is satisfied;
29. Whereas in the first round of oral argument the United States contended
that the request by Mexico was without foundation in fact or in law and that
the requirements for the Court to indicate provisional measures were not
met;
30. Whereas the United States submitted that the Court had ruled in the
LaGrand case that, where there had been a violation of the obligation of
notification prescribed by Article 36, paragraph 1 (b), of the Vienna
Convention "in death penalty cases", the remedy to be provided by the
receiving State was to ensure that there was in every case review and
reconsideration of the decision; whereas it stated that, following the
LaGrand case, the competent authorities in the United States had instituted
measures providing for review and reconsideration in all such cases, that so
far these measures had proved effective and that there was no reason to
think that they would not be effective in future cases; whereas it added
that the receiving State was, on the other hand, under no obligation to
quash all convictions and to recommence the trial process in such cases; and
whereas the United States accordingly concluded that the request by Mexico
seeking, by way of indication of provisional measures, [p 85] to preserve a
right to the restoration of the status quo ante was not a request seeking
preservation of a right protected by the Vienna Convention, and that
therefore the request should be denied;
31. Whereas the United States further contended that the request by Mexico
did not satisfy the condition of urgency and did not show that imminent
serious harm was likely, because United States proceedings in each of the 51
cases were continuing and none of the Mexican nationals covered by the
request for indication of provisional measures was scheduled to be executed;
and whereas it pointed out that in some of the cases referred to by Mexico
no violation of Article 36 of the Vienna Convention had been established,
that in others Mexico would have an opportunity to raise any failure of
notification at a later stage in the domestic legal proceedings, and,
finally, that review and reconsideration remained available in all the
cases;
32. Whereas the United States further maintained that the request by Mexico
was too sweeping and did not respect the essential balance of the rights of
the Parties because, if it were accepted by the Court, it would prejudice
the sovereign right of the United States to operate its criminal justice
system; and whereas the United States concluded that the order for the
indication of provisional measures requested by Mexico "would constitute a
wholly unprecedented and unwarranted interference with the sovereign rights
of the United States even as it goes far beyond preserving Mexico's rights
under the Convention";
33. Whereas in its second round of oral argument Mexico stated that it could
not accept the conclusions derived by the United States from the Court's
Judgment in the LaGrand case in regard to the remedies available for
breaches of its obligations under Article 36 of the Vienna Convention;
whereas Mexico added that the Court would not, however, need to address
those issues until its examination of the merits of the case; and whereas it
submitted that the purpose of its request was unquestionably to preserve
rights arising out of the Vienna Convention and that its request should
accordingly be upheld;
34. Whereas Mexico contended that, for the condition of urgency to be met,
it was sufficient that there was a "likely" threat of irreparable prejudice,
and that in the present case, since execution dates for the Mexican
nationals named in the request could be set at any time by the competent
authorities of the United States and since, once those dates had been set,
those nationals could be executed at very short notice, the condition of
urgency was accordingly met;
35. Whereas, finally, Mexico argued that an order of the Court enjoining the
United States not to proceed with the execution of the said Mexican
nationals could not be considered as capable of causing any real [p 86] harm
to the legitimate interest of the United States in operating its criminal
justice system;
36. Whereas in its second round of oral argument the United States stressed
the fact that, following the Court's Judgment in the LaGrand case, it had
put in place a vast programme to ensure compliance with the obligation of
notification under Article 36, paragraph 1 (b), of the Vienna Convention and
had also taken measures to ensure review and reconsideration in all death
penalty cases where that obligation had been breached; and whereas the
United States reiterated its view that Mexico's request for the indication
of provisional measures was not consistent with the LaGrand Judgment and
that it was seeking to preserve non-existent rights, so that there was
neither any risk of irreparable prejudice nor any urgency; whereas the
United States further pointed out that, according to the United States
Supreme Court, "the clemency power . . . [was] an integral mechanism in the
administration of our criminal laws", and "clemency 'has provided a
fail-safe in our criminal justice system'";
37. Whereas at the hearings a Member of the Court put the following question
to the Agent of the United States:
"Under what circumstances will the Legal Adviser of the State Department
notify an appellate court rather than later notify a clemency body of the
obligations of the United States consequent upon an admitted violation of
Article 36 of the Vienna Convention? Is the matter simply one of timing?";
whereas, in response to that question, the Agent stated inter alia the
following:
"We . . . have made a conscious choice to focus our efforts on clemency
proceedings for
[21] providing the review and reconsideration this Court called for in
LaGrand. [That Judgment] expressly left the choice of means of providing the
review and reconsideration to the United States[.] . . . Clemency
proceedings provide a more flexible process that is best suited for
achieving, without procedural obstacles, the review and reconsideration this
Court called for";
and whereas the Agent added that his
"Government would . . . inform a court upon request, at any time, of the
international legal obligations of the United States, and how in the
particular posture of a given case they [might] or [might] not apply and
whether and how they might be carried out under the applicable domestic law
in that court",
while explaining that "a court [might] determine . . . that domestic law [p
87] principles still precluded an express judicial remedy for a failure of
consular notification";
***
38. Whereas, on a request for the indication of provisional measures, the
Court need not finally satisfy itself, before deciding whether or not to
indicate such measures, that it has jurisdiction on the merits of the case,
yet it may not indicate them unless the provisions invoked by the Applicant
appear, prima facie, to afford a basis on which the jurisdiction of the
Court might be founded;
39. Whereas Article I of the Optional Protocol, which Mexico invokes as the
basis of jurisdiction of the Court in the present case, is worded as
follows:
"Disputes arising out of the interpretation or application of the Convention
shall lie within the compulsory jurisdiction of the International Court of
Justice and may accordingly be brought before the Court by a written
application made by any party to the dispute being a Party to the present
Protocol";
40. Whereas, according to the information communicated by the
Secretary-General of the United Nations as depositary, Mexico and the United
States have been parties to the Vienna Convention since 16 June 1965 and 24
November 1969 respectively, and to the Optional Protocol since 15 March 2002
and 24 November 1969 respectively, in each case without reservation;
41. Whereas Mexico has argued that the issues in dispute between itself and
the United States concern Articles 5 and 36 of the Vienna Convention and
fall within the compulsory jurisdiction of the Court under Article I of the
Optional Protocol; and whereas it has accordingly concluded that the Court
has the jurisdiction necessary to indicate the provisional measures
requested; and whereas the United States has said that it "does not propose
to make an issue now of whether the Court possesses prima facie
jurisdiction, although this is without prejudice to its right to contest the
Court's jurisdiction at the appropriate stage later in the case";
42. Whereas, in view of the foregoing, the Court accordingly considers that,
prima facie, it has jurisdiction under Article I of the aforesaid Optional
Protocol to hear the case;
**
43. Whereas in its Application Mexico, as stated previously (see paragraph 8
above), asks the Court to adjudge and declare that, the United States
"violated its international legal obligations to Mexico, in its own right
and in the exercise of its right of consular protection of its nationals, [p
88] as provided by Articles 5 and 36, respectively of the Vienna
Convention"; whereas Mexico seeks various measures aimed at remedying these
breaches and avoiding any repetition thereof; whereas it contends, the Court
should preserve the right to such remedies by calling upon the United States
to take all necessary steps to ensure that no Mexican national is executed
and that no execution date be set in respect of any such national;
44. Whereas the United States acknowledges that, in certain cases, Mexican
nationals have been prosecuted and sentenced without being informed of their
rights pursuant to Article 36, paragraph 1 (b), of the Vienna Convention;
whereas it argues, however, that in such cases, in accordance with the
Court's Judgment in the LaGrand case, the United States has the obligation
"by means of its own choosing, [to] allow the review and reconsideration of
the conviction and sentence by taking account of the violation of the rights
set forth in that Convention"; whereas it submits that in the specific cases
identified by Mexico the evidence indicates the commitment of the United
States to providing such review and reconsideration; whereas the United
States contends that such review and reconsideration can occur through the
process of executive clemency -- an institution "deeply rooted in the
Anglo-American system of justice" -- which may be initiated by the
individuals concerned after the judicial process has been completed; whereas
it claims that such review and reconsideration has already occurred in
several cases during the last two years; that none of the Mexicans
"currently under sentence of death will be executed unless there has been a
review and reconsideration of the conviction and sentence that takes into
account any failure to carry out the obligations of Article 36 of the Vienna
Convention"; that, under the terms of the Court's decision in the LaGrand
case, this is a sufficient remedy for its breaches, and that there is
accordingly no need to indicate provisional measures intended to preserve
the rights to such remedies;
45. Whereas, according to Mexico, the position of the United States amounts
to maintaining that "the Vienna Convention entitles Mexico only to review
and reconsideration, and that review and reconsideration equals only the
ability to request clemency"; whereas "the standardless, secretive and
unreviewable process that is called clemency cannot and does not satisfy
this Court's mandate [in the LaGrand case]";
46. Whereas there is thus a dispute between the Parties concerning the
rights of Mexico and of its nationals regarding the remedies that must be
provided in the event of a failure by the United States to comply with its
obligations under Article 36, paragraph 1, of the Vienna Convention; whereas
that dispute belongs to the merits and cannot be settled at this stage of
the proceedings; whereas the Court must accordingly address the issue of
whether it should indicate provisional measures to preserve any rights that
may subsequently be adjudged on the merits to be those of the Applicant;[p
89]
47. Whereas the United States argues, however, that it is incumbent upon the
Court, pursuant to Article 41 of its Statute, to indicate provisional
measures "not to preserve only rights claimed by the Applicant, but 'to
preserve the respective rights of either party'"; that, "after balancing the
rights of both Parties, the scales tip decidedly against Mexico's request in
this case"; that the measures sought by Mexico to be implemented immediately
amount to "a sweeping prohibition on capital punishment for Mexican
nationals in the United States, regardless of United States law", which
"would drastically interfere with United States sovereign rights and
implicate important federalism interests"; that this would, moreover,
transform the Court into a "general criminal court of appeal", which the
Court has already indicated in the past is not its function; and that the
measures requested by Mexico should accordingly be refused;
48. Whereas the Court, when considering a request for the indication of
provisional measures, "must be concerned to preserve . . . the rights which
may subsequently be adjudged by the Court to belong either to the Applicant
or to the Respondent" (Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996,
I.C.J. Reports 1996 (I), p. 22, para. 35), without being obliged at this
stage of the proceedings to rule on those rights; whereas the issues brought
before the Court in this case "do not concern the entitlement of the federal
states within the United States to resort to the death penalty for the most
heinous crimes"; whereas "the function of this Court is to resolve
international legal disputes between States, inter alia when they arise out
of the interpretation or application of international conventions, and not
to act as a court of criminal appeal"; (LaGrand (Germany v. United States of
America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999
(I), p. 15, para. 25); whereas the Court may indicate provisional measures
without infringing these principles; and whereas the argument put forward on
these specific points by the United States accordingly cannot be accepted;
**
49. Whereas
"the power of the Court to indicate provisional measures under Article 41 of
its Statute is intended to preserve the respective rights of the parties
pending its decision, and presupposes that irreparable prejudice shall not
be caused to rights which are the subject of a dispute in judicial
proceedings" (LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), pp. 14-15, para.
22);[p 90]
50. Whereas, moreover,
"provisional measures under Article 41 of the Statute are indicated 'pending
the final decision' of the Court on the merits of the case, and are
therefore only justified if there is urgency in the sense that action
prejudicial to the rights of either party is likely to be taken before such
final decision is given" (Passage through the Great Belt (Finland v.
Denmark)), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991,
p. 17, para. 23);
51. Whereas Mexico's principal request is that the Court should order the
United States "to take
measures sufficient to ensure that no Mexican national be executed and that
no date for the execution of a Mexican national be set"; whereas the
jurisdiction of the Court is limited in the present case to the dispute
between the Parties concerning the interpretation and application of the
Vienna Convention with regard to the individuals which Mexico identified as
being victims of a violation of the Convention; whereas, accordingly, the
Court cannot rule on the rights of Mexican nationals who are not alleged to
have been victims of a violation of that Convention;
52. Whereas, however, Mexico argues that 54 of its nationals have been
sentenced to death following proceedings that allegedly violated the
obligations incumbent on the United States under Article 36, paragraph 1
(b), of the Vienna Convention; whereas Mexico provides a list of those
nationals and some information relating to their respective cases; whereas
it adds that three of them have had their sentences commuted; whereas at the
oral proceedings its Agent requested that the United States be ordered "to
refrain from fixing any date for execution and from carrying out any
execution in the case of the 51 Mexican nationals covered by the
Application, until the Court has been able to decide on the merits of the
case";
53. Whereas the United States argues that no execution date has been
scheduled with respect to any of the Mexican nationals concerned (see
paragraph 31 above); whereas it points out that this is so both for the
three individuals specifically named in its request for the indication of
provisional measures and in regard to the others; whereas it observes that,
in the case of these latter, "any execution date is even more remote"; and
whereas it accordingly concludes that the request for the indication of
provisional measures is thus premature;
54. Whereas "the sound administration of justice requires that a request for
the indication of provisional measures founded on Article 73 of the Rules of
Court be submitted in good time" LaGrand (Germany v. United States of
America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999
(I), p. 14, para. 19); whereas, moreover, the Supreme Court of the United
States observed, when considering a petition seeking the enforcement of an
Order of this Court, that: "It is unfortunate that this matter came before
us while proceedings are pending before the ICJ [p 91] that might have been
brought to that court earlier" ( Breard v. Greene, 523 US 371, 378 (1998));
whereas, in view of the rules and time-limits governing the granting of
clemency and the fixing of execution dates in a number of the states of the
United States, the fact that no such dates have been fixed in any of the
cases before the Court is not per se a circumstance that should preclude the
Court from indicating provisional measures;
55. Whereas it is apparent from the information before the Court in this
case that three Mexican nationals, Messrs. Cesar Roberto Fierro Reyna,
Roberto Moreno Ramos and Osvaldo Torres Aguilera, are at risk of execution
in the coming months, or possibly even weeks; whereas their execution would
cause irreparable prejudice to any rights that may subsequently be adjudged
by the Court to belong to Mexico; and whereas the Court accordingly
concludes that the circumstances require that it indicate provisional
measures to preserve those rights, as Article 41 of its Statute provides;
56. Whereas the other individuals listed in Mexico's Application, although
currently on death row, are not in the same position as the three persons
identified in the preceding paragraph of this Order; whereas the Court may,
if appropriate, indicate provisional measures under Article 41 of the
Statute in respect of those individuals before it renders final judgment in
this case;
**
57. Whereas it is clearly in the interest of both Parties that their
respective rights and obligations be determined definitively as early as
possible; whereas it is therefore appropriate that the Court, with the
co-operation of the Parties, ensure that a final judgment be reached with
all possible expedition;
58. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas it leaves
unaffected the right of the Governments of Mexico and the United States to
submit arguments in respect of those questions;
***
59. For these reasons,
THE COURT,
Unanimously,
I. Indicates the following provisional measures:
(a) The United States of America shall take all measures necessary to [p 92]
ensure that Mr. Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr.
Osvaldo Torres Aguilera are not executed pending final judgment in these
proceedings;
(b) The Government of the United States of America shall inform the Court of
all measures taken in implementation of this Order.
II. Decides that, until the Court has rendered its final judgment, it shall
remain seised of the matters which form the subject of this Order.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this fifth day of February, two thousand and three,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the United Mexican States
and the Government of the United States of America, respectively.
(Signed) Gilbert GUILLAUME,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge ODA appends a declaration to the Order of the Court.
(Initialled) G. G.
(Initialled) Ph. C.
[p 93]
DECLARATION OF JUDGE ODA
I voted in favour of the present Order. However, I believe it appropriate to
state my doubts concerning the Court’s definition of “disputes arising out
of the interpretation or application” of the Vienna Convention on Consular
Relations. Those doubts have already been clearly expressed on three
occasions in connection with two similar cases decided by the Court (see
Vienna Convention on Consular Relations (Paraguay v. United States of
America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998,
p. 248; LaGrand (Germany v. United States of America), Provisional Measures,
Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 9); LaGrand (Germany v.
United States of America), Judgment, I.C.J. Reports 2001).
The present case, in my view, is in essence an attempt by Mexico to save the
lives of its nationals who have been sentenced to death by domestic courts
in the United States. This case concerns human rights, specifically those of
the Mexican nationals on death row, but there is no dispute between Mexico
and the United States concerning the interpretation or application of the
Vienna Convention. The United States has acknowledged its failure to provide
consular notification -- in violation of the Vienna Convention -- and in
fact the Mexican nationals did not receive timely consular protection.
I believe that Mexico has seized upon the Convention and the admitted
violation of it as a means, and the only one potentially available, to
subject the United States to the compulsory jurisdiction of the Court. Since
there is currently no provision of international law conferring universal
compulsory jurisdiction on the International Court of Justice, Mexico sought
a mechanism by which it could hope to bring a case unilaterally before the
Court and it relied to that end on the Convention’s Optional Protocol,
pursuant to which both Mexico and the United States have accepted the
Court’s compulsory jurisdiction in disputes involving the interpretation or
application of the Convention.
Mexico contends that its nationals were sentenced to death without having
received consular assistance. In most cases, however, they were given
consular assistance in the judicial processes (including the clemency
procedure) that followed their initial sentencing. This case cannot be about
domestic legal procedure in the United States because that lies within the
sovereign discretion of that country. It does not concern a dispute over the
interpretation or application of the Vienna Convention [p 94] because the
United States admits its violation. While there may be a question of the
appropriate remedy for the violation, that is a matter of general
international law, not of the interpretation or application of the
Convention. What this case is about is abhorrence -- by Mexico and others --
of capital punishment.
If the International Court of Justice interferes in a State’s criminal law
system (encompassing trial and appellate proceedings and clemency
procedures), it fails to respect the sovereignty of the State and places
itself on a par with the supreme court of the State. The Vienna Convention
in no way justifies the Court’s assumption of that role. As I have
previously stated:
“The Court cannot act as a court of criminal appeal and cannot be petitioned
for writs of habeas corpus. The Court does not have jurisdiction to decide
matters relating to capital punishment and its execution, and should not
intervene in such matters.” (LaGrand (Germany v. United States of America),
Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I),
declaration of Judge Oda, p. 18.)
I added:
“Whether capital punishment would be contrary to Article 6 of the 1966
International Covenant on Civil and Political Rights is not a matter to be
determined by the International Court of Justice -- at least in the present
situation.”(Ibid.)
Nor is the present case, brought under the Vienna Convention and not under
the International Covenant on Civil and Political Rights, the appropriate
context for that determination.
I fully understand the significant issues raised by the death penalty from
the perspective of those condemned to die but I shall reiterate my previous
statement: “[i]f [the rights of the accused] as they relate to humanitarian
issues are to be respected then, in parallel, the matter of the rights of
victims of violent crime (a point which has often been overlooked) should be
taken into consideration” (ibid).
(Signed) Shigeru ODA.
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