|
[p.12]
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 9 January2003 the United Mexican States (hereinafter referred to as
"Mexico") filed in the Registry of the Court an Application instituting
proceedings against the United States of America (hereinafter referred to as
the "United States") for "violations of the Vienna Convention on Consular
Relations" of 24 April 1963 (hereinafter referred to as the "Vienna
Convention") allegedly committed by the United States.
In its Application, Mexico based the jurisdiction of the Court on Article
36, paragraph 1, of the Statute of the Court and on Article I of the
Optional Protocol concerning the Compulsory Settlement of Disputes, which
accompanies the Vienna Convention (hereinafter referred to as the "Optional
Protocol").
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated to the Government of the United States; and, in
accordance with paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.
3. On 9 January 2003, the day on which the Application was filed, the
Mexican Government also filed in the Registry of the Court a request for the
indication of provisional measures based on Article 41 of the Statute and
Articles 73, 74 and 75 of the Rules of Court.
By an Order of 5 February 2003, the Court indicated the following
provisional measures:
"(a) The United States of America shall take all measures necessary to
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."
It further decided that, "until the Court has rendered its final judgment,
it shall remain seised of the matters" which formed the subject of that
Order.
In a letter of 2 November 2003, the Agent of the United States advised the
Court that the United States had "informed the relevant state authorities of
Mexico's application"; that, since the Order of 5 February 2003, the United
States had "obtained from them information about the status of the
fifty-four cases, including the three cases identified in paragraph 59 (I)(a)
of that Order"; and that the United States could "confirm that none of the
named individuals [had] been executed".
4. In accordance with Article 43 of the Rules of Court, the Registrar sent
the notification referred to in Article 63, paragraph 1, of the Statute to
all States parties to the Vienna Convention or to that Convention and the
Optional Protocol.
5. By an Order of 5 February 2003, the Court, taking account of the views of
the Parties, fixed 6 June 2003 and 6 October 2003, respectively, as the
time-limits for the filing of a Memorial by Mexico and of a Counter-Memorial
by the United States. [p 18]
6. By an Order of 22 May 2003, the President of the Court, on the joint
request of the Agents of the two Parties, extended to 20 June 2003 the
time-limit for the filing of the Memorial; the time-limit for the filing of
the Counter-Memorial was extended, by the same Order, to 3 November 2003.
By a letter dated 20 June 2003 and received in the Registry on the same day,
the Agent of Mexico informed the Court that Mexico was unable for technical
reasons to file the original of its Memorial on time and accordingly asked
the Court to decide, under Article 44, paragraph 3, of the Rules of Court,
that the filing of the Memorial after the expiration of the time-limit fixed
therefor would be considered as valid; that letter was accompanied by two
electronic copies of the Memorial and its annexes. Mexico having filed the
original of the Memorial on 23 June 2003 and the United States having
informed the Court, by a letter of 24 June 2003, that it had no comment to
make on the matter, the Court decided on 25 June 2003 that the filing would
be considered as valid.
7. In a letter of 14 October 2003, the Agent of Mexico expressed his
Government's wish to amend its submissions in order to include therein the
cases of two Mexican nationals, Mr. Victor Miranda Guerrero and Mr. Tonatihu
Aguilar Saucedo, who had been sentenced to death, after the filing of
Mexico's Memorial, as a result of criminal proceedings in which, according
to Mexico, the United States had failed to comply with its obligations under
Article 36 of the Vienna Convention.
In a letter of 2 November 2003, under cover of which the United States filed
its Counter-Memorial within the time-limit prescribed, the Agent of the
United States informed the Court that his Government objected to the
amendment of Mexico's submissions, on the grounds that the request was late,
that Mexico had submitted no evidence concerning the alleged facts and that
there was not enough time for the United States to investigate them.
In a letter received in the Registry on 28 November 2003, Mexico responded
to the United States objection and at the same time amended its submissions
so as to withdraw its request for relief in the cases of two Mexican
nationals mentioned in the Memorial, Mr. Enrique Zambrano Garibi and Mr.
Pedro Hernandez Alberto, having come to the conclusion that the former had
dual Mexican and United States nationality and that the latter had been
informed of his right of consular notification prior to interrogation.
On 9 December 2003, the Registrar informed Mexico and the United States
that, in order to ensure the procedural equality of the Parties, the Court
had decided not to authorize the amendment of Mexico's submissions so as to
include the two additional Mexican nationals mentioned above. He also
informed the Parties that the Court had taken note that the United States
had made no objection to the withdrawal by Mexico of its request for relief
in the cases of Mr. Zambrano and Mr. Hernandez.
8. On 28 November 2003 and 2 December 2003, Mexico filed various documents
which it wished to produce in accordance with Article 56 of the Rules of
Court. By letters dated 2 December 2003 and 5 December 2003, the Agent of
the United States informed the Court that his Government did not object to
the production of these new documents and that it intended to exercise its
right to comment upon these documents and to submit documents in support of
its comments, pursuant to paragraph 3 of that Article. By letters dated 9
December 2003, the Registrar informed the Parties that the Court had taken
note that [p 19] the United States had no objection to the production of
these documents and that accordingly counsel would be free to refer to them
in the course of the hearings. On 10 December 2003, the Agent of the United
States filed the comments of his Government on the new documents produced by
Mexico, together with a number of documents in support of those comments.
9. Since the Court included upon the Bench no judge of Mexican nationality,
Mexico availed itself of its right under Article 31, paragraph 2, of the
Statute to choose a judge ad hoc to sit in the case: it chose Mr. Bernardo
SepUlveda.
10. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having
consulted the Parties, decided that copies of the pleadings and documents
annexed would be made accessible to the public on the opening of the oral
proceedings.
11. Public sittings were held between 15 and 19 December 2003, at which the
Court heard the oral arguments and replies of:
For Mexico: H.E. Mr. Juan Manuel Gomez-Robledo,
Ms Sandra L. Babcock,
Mr. Victor Manuel Uribe Avina,
Mr. Donald Francis Donovan,
Ms Katherine Birmingham Wilmore,
H.E. Mr. Santiago Onate,
Ms Socorro Flores Liera,
Mr. Carlos Bernal,
Mr. Dietmar W. Prager,
Mr. Pierre-Marie Dupuy.
For the United States: The Honourable William H. Taft, IV,
Ms Elisabeth Zoller,
Mr. Patrick F. Philbin,
Mr. John Byron Sandage,
Ms Catherine W. Brown,
Mr. D. Stephen Mathias,
Mr. James H. Thessin,
Mr. Thomas Weigend.
*
12. In its Application, Mexico formulated the decision requested in the
following terms:
"The Government of the United Mexican States therefore asks the Court to
adjudge and declare:
(1) that the United States, in arresting, detaining, trying, convicting, and
sentencing the 54 Mexican nationals on death row described in this
Application, violated its international legal obligations to Mexico, in its
own 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
[p 20] apply the doctrine of procedural default, or any other doctrine of
its municipal law, to preclude the exercise of the rights afforded by
Article 36 of the Vienna Convention;
(4) that the United States is under an international legal obligation to
carry out in conformity with the foregoing international legal 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."
13. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of the Government of Mexico,
in the Memorial:
"For these reasons, . . . the Government of Mexico respectfully requests the
Court to adjudge and declare
(1) that the United States, in arresting, detaining, trying, convicting, and
sentencing the fifty-four Mexican nationals on death row described in [p 21]
Mexico's Application and this Memorial, violated its international legal
obligations to Mexico, in its own right and in the exercise of its right of
diplomatic protection of its nationals, as provided by Article 36 of the
Vienna Convention;
(2) that the obligation in Article 36 (1) of the Vienna Convention requires
notification before the competent authorities of the receiving State
interrogate the foreign national or take any other action potentially
detrimental to his or her rights;
(3) that the United States, in applying the doctrine of procedural default,
or any other doctrine of its municipal law, to preclude the exercise and
review of the rights afforded by Article 36 of the Vienna Convention,
violated its international legal obligations to Mexico, in its own right and
in the exercise of its right of diplomatic protection of its nationals, as
provided by Article 36 of the Vienna Convention; and
(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 fifty-four
Mexican nationals on death row and any other Mexican national in its
territory, whether by a constituent, legislative, executive, judicial or
other power, whether that power holds a superior or a subordinate position
in the organization of the United States, and whether that power's functions
are international or internal in character;
and that, pursuant to the foregoing international legal obligations,
(1) Mexico is entitled to restitutio in integrum and the United States
therefore is under an obligation to restore the status quo ante, that is,
reestablish the situation that existed at the time of the detention and
prior to the interrogation of, proceedings against, and convictions and
sentences of, Mexico's nationals in violation of the United States'
international legal obligations, specifically by, among other things,
(a) vacating the convictions of the fifty-four Mexican nationals;
(b) vacating the sentences of the fifty-four Mexican nationals;
(c) excluding any subsequent proceedings against the fifty-four Mexican
nationals any statements and confessions obtained from them prior to
notification of their rights to consular notification and access;
(d) preventing the application of any procedural penalty for a Mexican
national's failure timely to raise a claim or defense based on the Vienna
Convention where competent authorities of the United States have breached
their obligation to advise the national of his rights under the Convention;
[p 22]
(e) preventing the application of any municipal law doctrine or judicial
holding that prevents a court in the United States from providing a remedy,
including the relief to which this Court holds that Mexico is entitled here,
to a Mexican national whose Article 36 rights have been violated; and
(f) preventing the application of any municipal law doctrine or judicial
holding that requires an individualized showing of prejudice as a
prerequisite to relief for the violations of Article 36;
(2) the United Statesin light of the regular and continuous violations set
forth in Mexico's Application and Memorial, is under an obligation to take
all legislative, executive, and judicial steps necessary to:
(a) ensure that the regular and continuing violations of the Article 36
consular notification, access, and assistance rights of Mexico and its
nationals cease;
(b) guarantee that its competent authorities, of federal, state, and local
jurisdiction, maintain regular and routine compliance with their Article 36
obligations;
(c) ensure that its judicial authorities cease applying, and guarantee that
in the future they will not apply:
(i) any procedural penalty for a Mexican national's failure timely to raise
a claim or defense 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;
(ii) any municipal law doctrine or judicial holding that prevents a court in
the United States from providing a remedy, including the relief to which
this Court holds that Mexico is entitled here, to a Mexican national whose
Article 36 rights have been violated; and
(iii) any municipal law doctrine or judicial holding that requires an
individualized showing of prejudice as a prerequisite to relief for the
Vienna Convention violations shown here."
On behalf of the Government of the United States,
in the Counter-Memorial:
"On the basis of the facts and arguments set out above, the Government of
the United States of America requests that the Court adjudge and declare
that the claims of the United Mexican States are dismissed."
14. At the oral proceedings, the following submissions were presented by the
Parties: [p 23]
On behalf of the Government of Mexico,
"The Government of Mexico respectfully requests the Court to adjudge and
declare
(1) That the United States of America, in arresting, detaining, trying,
convicting, and sentencing the 52 Mexican nationals on death row described
in Mexico's Memorial, violated its international legal obligations to
Mexico, in its own right and in the exercise of its right to diplomatic
protection of its nationals, by failing to inform, without delay, the 52
Mexican nationals after their arrest of their right to consular notification
and access under Article 36 (1)(b) of the Vienna Convention on Consular
Relations, and by depriving Mexico of its right to provide consular
protection and the 52 nationals' right to receive such protection as Mexico
would provide under Article 36 (1)(a) and (c) of the Convention;
(2) That the obligation in Article 36 (1) of the Vienna Convention requires
notification of consular rights and a reasonable opportunity for consular
access before the competent authorities of the receiving State take any
action potentially detrimental to the foreign national's rights;
(3) That the United States of America violated its obligations under Article
36 (2) of the Vienna Convention by failing to provide meaningful and
effective review and reconsideration of convictions and sentences impaired
by a violation of Article 36 (1); by substituting for such review and
reconsideration clemency proceedings; and by applying the "procedural
default" doctrine and other municipal law doctrines that fail to attach
legal significance to an Article 36 (1) violation on its own terms;
(4) That pursuant to the injuries suffered by Mexico in its own right and in
the exercise of diplomatic protection of its nationals, Mexico is entitled
to full reparation for those injuries in the form of restitutio in integrum;
(5) That this restitution consists of the obligation to restore the status
quo ante by annulling or otherwise depriving of full force or effect the
convictions and sentences of all 52 Mexican nationals;
(6) That this restitution also includes the obligation to take all measures
necessary to ensure that a prior violation of Article 36 shall not affect
the subsequent proceedings;
(7) That to the extent that any of the 52 convictions or sentences are not
annulled, the United States shall provide, by means of its own choosing,
meaningful and effective review and reconsideration of the convictions and
sentences of the 52 nationals, and that this obligation cannot be satisfied
by means of clemency proceedings or if any municipal law rule or doctrine
inconsistent with paragraph (3) above is applied; and [p 24]
(8) That the United States of America shall cease its violations of Article
36 of the Vienna Convention with regard to Mexico and its 52 nationals and
shall provide appropriate guarantees and assurances that it shall take
measures sufficient to achieve increased compliance with Article 36 (1) and
to ensure compliance with Article 36 (2)."
On behalf of the Government of the United States,
"On the basis of the facts and arguments made by the United States in its
Counter-Memorial and in these proceedings, the Government of the United
States of America requests that the Court, taking into account that the
United States has conformed its conduct to this Court's Judgment in the
LaGrand Case (Germany v. United States of America), not only with respect to
German nationals but, consistent with the Declaration of the President of
the Court in that case, to all detained foreign nationals, adjudge and
declare that the claims of the United Mexican States are dismissed."
***
15. The present proceedings have been brought by Mexico against the United
States on the basis of the Vienna Convention, and of the Optional Protocol
providing for the jurisdiction of the Court over "disputes arising out of
the interpretation or application" of the Convention. Mexico and the United
States are, and were at all relevant times, parties to the Vienna Convention
and to the Optional Protocol. Mexico claims that the United States has
committed breaches of the Vienna Convention in relation to the treatment of
a number of Mexican nationals who have been
tried, convicted and sentenced to death in criminal proceedings in the
United States. The original claim related to 54 such persons, but as a
result of subsequent adjustments to its claim made by Mexico (see paragraph
7 above), only 52 individual cases are involved. These criminal proceedings
have been taking place in nine different States of the United States, namely
California (28 cases), Texas (15 cases), Illinois (three cases), Arizona
(one case), Arkansas (one case), Nevada (one case), Ohio (one case),
Oklahoma (one case) and Oregon (one case), between 1979 and the present.
16. For convenience, the names of the 52 individuals, and the numbers by
which their cases will be referred to, are set out below:
1. Carlos Avena Guillen
2. Hector Juan Ayala
3. Vicente Benavides Figueroa
4. Constantino Carrera Montenegro
5. Jorge Contreras Lopez [p 25]
6. Daniel Covarrubias Sanchez
7. Marcos Esquivel Barrera
8. Ruben Gomez Perez
9. Jaime Armando Hoyos
10. Arturo Juarez Suarez
11. Juan Manuel Lopez
12. Jose Lupercio Casares
13. Luis Alberto Maciel Hernandez
14. Abelino Manriquez Jaquez
15. Omar Fuentes Martinez (a.k.a. Luis Aviles de la Cruz)
16. Miguel Angel Martinez Sanchez
17. Martin Mendoza Garcia
18. Sergio Ochoa Tamayo
19. Enrique Parra Duenas
20. Juan de Dios Ramirez Villa
21. Magdaleno Salazar
22. Ramon Salcido Bojorquez
23. Juan Ramon Sanchez Ramirez
24. Ignacio Tafoya Arriola
25. Alfredo Valdez Reyes
26. Eduardo David Vargas
27. Tomas Verano Cruz
28. [Case withdrawn]
29. Samuel Zamudio Jimenez
30. Juan Carlos Alvarez Banda
31. Cesar Roberto Fierro Reyna
32. Hector Garcia Torres
33. Ignacio Gomez
34. Ramiro Hernandez Llanas
35. Ramiro Rubi Ibarra
36. Humberto Leal Garcia
37. Virgilio Maldonado
38. Jose Ernesto Medellin Rojas
39. Roberto Moreno Ramos
40. Daniel Angel Plata Estrada
41. Ruben Ramirez Cardenas
42. Felix Rocha Diaz
43. Oswaldo Regalado Soriano
44. Edgar Arias Tamayo
45. Juan Caballero Hernandez
46. Mario Flores Urban
47. Gabriel Solache Romero
48. Martin RaUl Fong Soto
49. Rafael Camargo Ojeda
50. [Case withdrawn]
51. Carlos Rene Perez Gutierrez
52. Jose Trinidad Loza [p 26]
53. Osvaldo Netzahualcoyotl Torres Aguilera
54. Horacio Alberto Reyes Camarena
17. The provisions of the Vienna Convention of which Mexico alleges
violations are contained in Article 36. Paragraphs 1 and 2 of this Article
are set out respectively in paragraphs 50 and 108 below. Article 36 relates,
according to its title, to "Communication and contact with nationals of the
sending State". Paragraph 1 (b) of that Article provides that if a national
of that State "is arrested or committed to prison or to custody pending
trial or is detained in any other manner", and he so requests, the local
consular post of the sending State is to be notified. The Article goes on to
provide that the "competent authorities of the receiving State" shall
"inform the person concerned without delay of his rights" in this respect.
Mexico claims that in the present case these provisions were not complied
with by the United States authorities in respect of the 52 Mexican nationals
the subject of its claims. As a result, the United States has according to
Mexico committed breaches of paragraph 1 (b); moreover, Mexico claims, for
reasons to be explained below (see paragraphs 98 et seq.), that the United
States is also in breach of paragraph 1 (a) and (c) and of paragraph 2 of
Article 36, in view of the relationship of these provisions with paragraph 1
(b).
18. As regards the terminology employed to designate the obligations
incumbent upon the receiving State under Article 36, paragraph 1 (b), the
Court notes that the Parties have used the terms "inform" and "notify" in
differing senses. For the sake of clarity, the Court, when speaking in its
own name in the present Judgment, will use the word "inform" when referring
to an individual being made aware of his rights under that subparagraph and
the word "notify" when referring to the giving of notice to the consular
post.
19. The underlying facts alleged by Mexico may be briefly described as
follows: some are conceded by the United States, and some disputed. Mexico
states that all the individuals the subject of its claims were Mexican
nationals at the time of their arrest. It further contends that the United
States authorities that arrested and interrogated these individuals had
sufficient information at their disposal to be aware of the foreign
nationality of those individuals. According to Mexico's account, in 50 of
the specified cases, Mexican nationals were never informed by the competent
United States authorities of their rights under Article 36, paragraph 1 (b),
of the Vienna Convention and, in the two remaining cases, such information
was not provided "without delay", as required by that provision. Mexico has
indicated that in 29 of the 52 cases its consular authorities learned of the
detention of the Mexican nationals only after death sentences had been
handed down. In the 23 remaining cases, Mexico contends that it learned of
the cases through means other than notification to the consular post by the
competent United States authorities under Article 36, paragraph 1 (b). It
explains that in five cases this[p 27] was too late to affect the trials,
that in 15 cases the defendants had already made incriminating statements,
and that it became aware of the other three cases only after considerable
delay.
20. Of the 52 cases referred to in Mexico's final submissions, 49 are
currently at different stages of the proceedings before United States
judicial authorities at state or federal level, and in three cases, those of
Mr. Fierro (case No. 31), Mr. Moreno (case No. 39) and Mr. Torres (case No.
53), judicial remedies within the United States have already been exhausted.
The Court has been informed of the variety of types of proceedings and forms
of relief available in the criminal justice systems of the United States,
which can differ from state to state. In very general terms, and according
to the description offered by both Parties in their pleadings, it appears
that the 52 cases may be classified into three categories: 24 cases which
are currently in direct appeal; 25 cases in which means of direct appeal
have been exhausted, but post-conviction relief (habeas corpus), either at
State or at federal level, is still available; and three cases in which no
judicial remedies remain. The Court also notes that, in at least 33 cases,
the alleged breach of the Vienna Convention was raised by the defendant
either during pre-trial, at trial, on appeal or in habeas corpus
proceedings, and that some of these claims were dismissed on procedural or
substantive grounds and others are still pending. To date, in none of the 52
cases have the defendants had recourse to the clemency process.
21. On 9 January 2003, the day on which Mexico filed its Application and a
request for the indication of provisional measures, all 52 individuals the
subject of the claims were on death row. However, two days later the
Governor of the State of Illinois, exercising his power of clemency review,
commuted the sentences of all convicted individuals awaiting execution in
that State, including those of three individuals named in Mexico's
Application (Mr. Caballero (case No. 45), Mr. Flores (case No. 46) and Mr.
Solache (case No. 47)). By a letter dated 20 January 2003, Mexico informed
the Court that, further to that decision, it withdrew its request for the
indication of provisional measures on behalf of these three individuals, but
that its Application remained unchanged. In the Order of 5 February 2003,
mentioned in paragraph 3 above, on the request by Mexico for the indication
of provisional measures, the Court considered that it was apparent from the
information before it that the three Mexican nationals named in the
Application who had exhausted all judicial remedies in the United States
(see paragraph 20 above) were at risk of execution in the following months,
or even weeks. Consequently, it ordered by way of provisional measure that
the United States take all measures necessary to ensure that these
individuals would not be executed [p 28] pending final judgment in these
proceedings. The Court notes that, at the date of the present Judgment,
these three individuals have not been executed, but further notes with great
concern that, by an Order dated 1 March 2004, the Oklahoma Court of Criminal
Appeals has set an execution date of 18 May 2004 for Mr. Torres.
The Mexican objection to the United States objections to jurisdiction and
admissibility
22. As noted above, the present dispute has been brought before the Court by
Mexico on the basis of the Vienna Convention and the Optional Protocol to
that Convention. Article I of the Optional Protocol provides:
"Disputes arising out of the interpretation or application of the [Vienna]
Convention shall lie within the compulsory jurisdiction of the International
Court of Justice and may accordingly be brought before the Court by a
written application made by any party to the dispute being a Party to the
present Protocol."
23. The United States has presented a number of objections to the
jurisdiction of the Court, as well as a number of objections to the
admissibility of the claims advanced by Mexico. It is however the contention
of Mexico that all the objections raised by the United States are
inadmissible as having been raised after the expiration of the time-limit
laid down by the Rules of Court. Mexico draws attention to the text of
Article 79, paragraph 1, of the Rules of Court as amended in 2000, which
provides that
"Any objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application, or other objection the decision upon which
is requested before any further proceedings on the merits, shall be made in
writing as soon as possible, and not later than three months after the
delivery of the Memorial."
The previous text of this paragraph required objections to be made "within
the time-limit fixed for delivery of the Counter-Memorial". In the present
case the Memorial of Mexico was filed on 23 June 2003; the objections of the
United States to jurisdiction and admissibility were presented in its
Counter-Memorial, filed on 3 November 2003, more than four months later.
24. The United States has observed that, during the proceedings on the
request made by Mexico for the indication of provisional measures in this
case, it specifically reserved its right to make jurisdictional arguments at
the appropriate stage, and that subsequently the Parties agreed that there
should be a single round of pleadings. The Court would however emphasize
that parties to cases before it cannot, by purporting to "reserve their
rights" to take some procedural action, exempt themselves from the
application to such action of the provisions of the Statute and Rules of [p
29] Court (cf. Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Order of 13 September 1993, I.C.J. Reports 1993, p. 338, para. 28).
The Court notes, however, that Article 79 of the Rules applies only to
preliminary objections, as is indicated by the title of the subsection of
the Rules which it constitutes. As the Court observed in the Lockerbie
cases, "if it is to be covered by Article 79, an objection must . . .
possess a 'preliminary' character," and "Paragraph 1 of Article 79 of the
Rules of Court characterizes as 'preliminary' an objection 'the decision
upon which is requested before any further proceedings'" (Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom)(Libyan Arab Jamahiriya v. United States of America), Preliminary
Objections, I.C.J. Reports 1998, p. 26, para. 47; p. 131, para. 46); and the
effect of the timely presentation of such an objection is that the
proceedings on the merits are suspended (paragraph 5 of Article 79). An
objection that is not presented as a preliminary objection in accordance
with paragraph 1 of Article 79 does not thereby become inadmissible. There
are of course circumstances in which the party failing to put forward an
objection to jurisdiction might be held to have acquiesced in jurisdiction
(Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J.
Reports 1972, p. 52, para. 13). However, apart from such circumstances, a
party failing to avail itself of the Article 79 procedure may forfeit the
right to bring about a suspension of the proceedings on the merits, but can
still argue the objection along with the merits. That is indeed what the
United States has done in this case; and, for reasons to be indicated below,
many of its objections are of such a nature that they would in any event
probably have had to be heard along with the merits. The Court concludes
that it should not exclude from consideration the objections of the United
States to jurisdiction and admissibility by reason of the fact that they
were not presented within three months from the date of filing of the
Memorial.
25. The United States has submitted four objections to the jurisdiction of
the Court, and five to the admissibility of the claims of Mexico. As noted
above, these have not been submitted as preliminary objections under Article
79 of the Rules of Court; and they are not of such a nature that the Court
would be required to examine and dispose of all of them in limine, before
dealing with any aspect of the merits of the case. Some are expressed to be
only addressed to certain claims; some are addressed to questions of the
remedies to be indicated if the Court finds that breaches of the Vienna
Convention have been committed; and some are of such a nature that they
would have to be dealt with along with the merits. The Court will however
now examine each of them in turn.
**[p 30]
United States objections to jurisdiction
26. The United States contends that the Court lacks jurisdiction to decide
many of Mexico's claims, inasmuch as Mexico's submissions in the Memorial
asked the Court to decide questions which do not arise out of the
interpretation or application of the Vienna Convention, and which the United
States has never agreed to submit to the Court.
*
27. By its first jurisdictional objection, the United States suggested that
the Memorial is fundamentally addressed to the treatment of Mexican
nationals in the federal and state criminal justice systems of the United
States, and the operation of the United States criminal justice system as a
whole. It suggested that Mexico's invitation to the Court to make what the
United States regards as "far-reaching and unsustainable findings concerning
the United States criminal justice systems" would be an abuse of the Court's
jurisdiction. At the hearings, the United States contended that Mexico is
asking the Court to interpret and apply the treaty as if it were intended
principally to govern the operation of a State's criminal justice system as
it affects foreign nationals.
28. The Court would recall that its jurisdiction in the present case has
been invoked under the Vienna Convention and Optional Protocol to determine
the nature and extent of the obligations undertaken by the United States
towards Mexico by becoming party to that Convention. If and so far as the
Court may find that the obligations accepted by the parties to the Vienna
Convention included commitments as to the conduct of their municipal courts
in relation to the nationals of other parties, then in order to ascertain
whether there have been breaches of the Convention, the Court must be able
to examine the actions of those courts in the light of international law.
The Court is unable to uphold the contention of the United States that, as a
matter of jurisdiction, it is debarred from enquiring into the conduct of
criminal proceedings in United States courts. How far it may do so in the
present case is a matter for the merits. The first objection of the United
States to jurisdiction cannot therefore be upheld.
*
29. The second jurisdictional objection presented by the United States was
addressed to the first of the submissions presented by Mexico in its
Memorial (see paragraph 13 above). The United States pointed out that
Article 36 of the Vienna Convention "creates no obligations constraining the
rights of the United States to arrest a foreign national"; and that [p 31]
similarly the "detaining, trying, convicting and sentencing" of Mexican
nationals could not constitute breaches of Article 36, which merely lays
down obligations of notification. The United States deduced from this that
the matters raised in Mexico's first submission are outside the jurisdiction
of the Court under the Vienna Convention and the Optional Protocol, and it
maintains this objection in response to the revised submission, presented by
Mexico at the hearings, whereby it asks the Court to adjudge and declare:
"That the United States of America, in arresting, detaining, trying,
convicting, and sentencing the 52 Mexican nationals on death row described
in Mexico's Memorial, violated its international legal obligations to
Mexico, in its own right and in the exercise of its right to diplomatic
protection of its nationals, by failing to inform, without delay, the 52
Mexican nationals after their arrest of their right to consular notification
and access under Article 36 (1)(b) of the Vienna Convention on Consular
Relations, and by depriving Mexico of its right to provide consular
protection and the 52 nationals' right to receive such protection as Mexico
would provide under Article 36 (1)(a) and (c) of the Convention."
30. This issue is a question of interpretation of the obligations imposed by
the Vienna Convention. It is true that the only obligation of the receiving
State toward a foreign national that is specifically enunciated by Article
36, paragraph 1 (b), of the Vienna Convention is to inform such foreign
national of his rights, when he is "arrested or committed to prison or to
custody pending trial or is detained in any other manner"; the text does not
restrain the receiving State from "arresting, detaining, trying, convicting,
and sentencing" the foreign national, or limit its power to do so. However,
as regards the detention, trial, conviction and sentence of its nationals,
Mexico argues that depriving a foreign national facing criminal proceedings
of consular notification and assistance renders those proceedings
fundamentally unfair. Mexico explains in this respect that:
"Consular notification constitutes a basic component of due process by
ensuring both the procedural equality of a foreign national in the criminal
process and the enforcement of other fundamental due process guarantees to
which that national is entitled", [p 32]
and that "It is therefore an essential requirement for fair criminal
proceedings against foreign nationals." In Mexico's contention, "consular
notification has been widely recognized as a fundamental due process right,
and indeed, a human right". On this basis it argues that the rights of the
detained Mexican nationals have been violated by the authorities of the
United States, and that those nationals have been "subjected to criminal
proceedings without the fairness and dignity to which each person is
entitled". Consequently, in the contention of Mexico, "the integrity of
these proceedings has been hopelessly undermined, their outcomes rendered
irrevocably unjust". For Mexico to contend, on this basis, that not merely
the failure to notify, but the arrest, detention, trial and conviction of
its nationals were unlawful is to argue in favour of a particular
interpretation of the Vienna Convention. Such an interpretation may or may
not be confirmed on the merits, but is not excluded from the jurisdiction
conferred on the Court by the Optional Protocol to the Vienna Convention.
The second objection of the United States to jurisdiction cannot therefore
be upheld.
*
31. The third objection by the United States to the jurisdiction of the
Court refers to the first of the submissions in the Mexican Memorial
concerning remedies. By that submission, which was confirmed in substance in
the final submissions, Mexico claimed that
"Mexico is entitled to restitutio in integrum, and the United States
therefore is under an obligation to restore the status quo ante, that is,
reestablish the situation that existed at the time of the detention and
prior to the interrogation of, proceedings against, and convictions and
sentences of, Mexico's nationals in violation of the United States'
international legal obligations . . ."
On that basis, Mexico went on in its first submission to invite the Court to
declare that the United States was bound to vacate the convictions and
sentences of the Mexican nationals concerned, to exclude from any subsequent
proceedings any statements and confessions obtained from them, to prevent
the application of any procedural penalty for failure to raise a timely
defence on the basis of the Convention, and to prevent the application of
any municipal law rule preventing courts in the United States from providing
a remedy for the violation of Article 36 rights.
32. The United States objects that so to require specific acts by the United
States in its municipal criminal justice systems would intrude deeply into
the independence of its courts; and that for the Court to [p 33] declare
that the United States is under a specific obligation to vacate convictions
and sentences would be beyond its jurisdiction. The Court, the United States
claims, has no jurisdiction to review appropriateness of sentences in
criminal cases, and even less to determine guilt or innocence, matters which
only a court of criminal appeal could go into.
33. For its part, Mexico points out that the United States accepts that the
Court has jurisdiction to interpret the Vienna Convention and to determine
the appropriate form of reparation under international law. In Mexico's
view, these two considerations are sufficient to defeat the third objection
to jurisdiction of the United States.
34. For the same reason as in respect of the second jurisdictional
objection, the Court is unable to uphold the contention of the United States
that, even if the Court were to find that breaches of the Vienna Convention
have been committed by the United States of the kind alleged by Mexico, it
would still be without jurisdiction to order restitutio in integrum as
requested by Mexico. The Court would recall in this regard, as it did in the
LaGrand case, that, where jurisdiction exists over a dispute on a particular
matter, no separate basis for jurisdiction is required by the Court in order
to consider the remedies a party has requested for the breach of the
obligation (I.C.J. Reports 2001, p. 485, para. 48). Whether or how far the
Court may order the remedy requested by Mexico are matters to be determined
as part of the merits of the dispute. The third objection of the United
States to jurisdiction cannot therefore be upheld.
*
35. The fourth and last jurisdictional objection of the United States is
that "the Court lacks jurisdiction to determine whether or not consular
notification is a 'human right', or to declare fundamental requirements of
substantive or procedural due process". As noted above, it is on the basis
of Mexico's contention that the right to consular notification has been
widely recognized as a fundamental due process right, and indeed a human
right, that it argues that the rights of the detained Mexican nationals have
been violated by the authorities of the United States, and that they have
been "subjected to criminal proceedings without the fairness and dignity to
which each person is entitled". The Court observes that Mexico has presented
this argument as being a matter of interpretation of Article 36, paragraph 1
(b), and therefore belonging to the merits. The Court considers that this is
indeed a question of interpretation of the Vienna Convention, for which it
has jurisdiction; the fourth objection of the United States to jurisdiction
cannot therefore be upheld.
**[p 34]
United States objections to admissibility
36. In its Counter-Memorial, the United States has advanced a number of
arguments presented as objections to the admissibility of Mexico's claims.
It argues that
"Before proceeding, the Court should weigh whether characteristics of the
case before it today, or special circumstances related to particular claims,
render either the entire case, or particular claims, inappropriate for
further consideration and decision by the Court."
*
37. The first objection under this head is that "Mexico's submissions should
be found inadmissible because they seek to have this Court function as a
court of criminal appeal"; there is, in the view of the United States, "no
other apt characterization of Mexico's two submissions in respect of
remedies". The Court notes that this contention is addressed solely to the
question of remedies. The United States does not contend on this ground that
the Court should decline jurisdiction to enquire into the question of
breaches of the Vienna Convention at all, but simply that, if such breaches
are shown, the Court should do no more than decide that the United States
must provide "review and reconsideration" along the lines indicated in the
Judgment in the LaGrand case (I.C.J. Reports 2001, pp. 513-514, para. 125).
The Court notes that this is a matter of merits. The first objection of the
United States to admissibility cannot therefore be upheld.
*
38. The Court now turns to the objection of the United States based on the
rule of exhaustion of local remedies. The United States contends that the
Court "should find inadmissible Mexico's claim to exercise its right of
diplomatic protection on behalf of any Mexican national who has failed to
meet the customary legal requirement of exhaustion of municipal remedies".
It asserts that in a number of the cases the subject of Mexico's claims, the
detained Mexican national, even with the benefit of the provision of Mexican
consular assistance, failed to raise the alleged non-compliance with Article
36, paragraph 1, of the Vienna Convention at the trial. Furthermore, it
contends that all of the claims relating to cases referred to in the Mexican
Memorial are inadmissible because local remedies remain available in every
case. It has drawn attention to the fact that litigation is pending before
courts in the United States in a large number of the cases the subject of
Mexico's claims and that, in those cases where judicial remedies have been
exhausted, the defendants have not had recourse to the clemency process
available to them; from this it concludes that none [p 35] of the cases "is
in an appropriate posture for review by an international tribunal".
39. Mexicoresponds that the rule of exhaustion of local remedies cannot
preclude the admissibility of its claims. It first states that a majority of
the Mexican nationals referred to in paragraph 16 above have sought judicial
remedies in the United States based on the Vienna Convention and that their
claims have been barred, notably on the basis of the procedural default
doctrine. In this regard, it quotes the Court's statement in the LaGrand
case that
"the United States may not . . . rely before this Court on this fact in
order to preclude the admissibility of Germany's [claim] . . ., as it was
the United States itself which had failed to carry out its obligation under
the Convention to inform the LaGrand brothers" (I.C.J. Reports 2001, p. 488,
para. 60).
Further, in respect of the other Mexican nationals, Mexico asserts that
"the courts of the United States have never granted a judicial remedy to any
foreign national for a violation of Article 36. The United States courts
hold either that Article 36 does not create an individual right, or that a
foreign national who has been denied his Article 36 rights but given his
constitutional and statutory rights, cannot establish prejudice and
therefore cannot get relief."
It concludes that the available judicial remedies are thus ineffective. As
for clemency procedures, Mexico contends that they cannot count for purposes
of the rule of exhaustion of local remedies, because they are not a judicial
remedy.
40. In its final submissions Mexico asks the Court to adjudge and declare
that the United States, in failing to comply with Article 36, paragraph 1,
of the Vienna Convention, has "violated its international legal obligations
to Mexico, in its own right and in the exercise of its right of diplomatic
protection of its nationals".
The Court would first observe that the individual rights of Mexican
nationals under subparagraph 1 (b) of Article 36 of the Vienna Convention
are rights which are to be asserted, at any rate in the first place, within
the domestic legal system of the United States. Only when that process is
completed and local remedies are exhausted would Mexico be entitled to
espouse the individual claims of its nationals through the procedure of
diplomatic protection.
In the present case Mexico does not, however, claim to be acting solely on
that basis. It also asserts its own claims, basing them on the injury which
it contends that it has itself suffered, directly and through its [p 36]
nationals, as a result of the violation by the United States of the
obligations incumbent upon it under Article 36, paragraph 1 (a), (b) and
(c).
The Court would recall that, in the LaGrand case, it recognized that
"Article 36, paragraph 1 [of the Vienna Convention], creates individual
rights [for the national concerned], which . . . may be invoked in this
Court by the national State of the detained person" (I.C.J. Reports 2001, p.
494, para. 77).
It would further observe that violations of the rights of the individual
under Article 36 may entail a violation the rights of the sending State, and
that violations of the rights of the latter may entail a violation of the
rights of the individual. In these special circumstances of interdependence
of the rights of the State and of individual rights, Mexico may, in
submitting a claim in its own name, request the Court to rule on the
violation of rights which it claims to have suffered both directly and
through the violation of individual rights conferred on Mexican nationals
under Article 36, paragraph 1 (b). The duty to exhaust local remedies does
not apply to such a request. Further, for reasons just explained, the Court
does not find it necessary to deal with Mexico's claims of violation under a
distinct heading of diplomatic protection. Without needing to pronounce at
this juncture on the issues raised by the procedural default rule, as
explained by Mexico in paragraph 39 above, the Court accordingly finds that
the second objection by the United States to admissibility cannot be upheld.
*
41. The Court now turns to the question of the alleged dual nationality of
certain of the Mexican nationals the subject of Mexico's claims. This
question is raised by the United States by way of an objection to the
admissibility of those claims: the United States contends that in its
Memorial Mexico had failed to establish that it may exercise diplomatic
protection based on breaches of Mexico's rights under the Vienna Convention
with respect to those of its nationals who are also nationals of the United
States. The United States regards it as an accepted principle that, when a
person arrested or detained in the receiving State is a national of that
State, then even if he is also a national of another State party to the
Vienna Convention, Article 36 has no application, and the authorities of the
receiving State are not required to proceed as laid down in that Article;
and Mexico has indicated that, for the purposes of the present case it does
not contest that dual nationals have no right to be advised of their rights
under Article 36.
42. It has however to be recalled that Mexico, in addition to seeking to
exercise diplomatic protection of its nationals, is making a claim in its [p
37] own right on the basis of the alleged breaches by the United States of
Article 36 of the Vienna Convention. Seen from this standpoint, the question
of dual nationality is not one of admissibility, but of merits. A claim may
be made by Mexico of breach of Article 36 of the Vienna Convention in
relation to any of its nationals, and the United States is thereupon free to
show that, because the person concerned was also a United States national,
Article 36 had no application to that person, so that no breach of treaty
obligations could have occurred. Furthermore, as regards the claim to
exercise diplomatic protection, the question whether Mexico is entitled to
protect a person having dual Mexican and United States nationality is
subordinated to the question whether, in relation to such a person, the
United States was under any obligation in terms of Article 36 of the Vienna
Convention. It is thus in the course of its examination of the merits that
the Court will have to consider whether the individuals concerned, or some
of them, were dual nationals in law. Without prejudice to the outcome of
such examination, the third objection of the United States to admissibility
cannot therefore be upheld.
*
43. The Court now turns to the fourth objection advanced by the United
States to the admissibility of Mexico's claims: the contention that
"The Court should not permit Mexico to pursue a claim against the United
States with respect to any individual case where Mexico had actual knowledge
of a breach of the [Vienna Convention] but failed to bring such breach to
the attention of the United States or did so only after considerable delay."
In the Counter-Memorial, the United States advances two considerations in
support of this contention: that if the cases had been mentioned promptly,
corrective action might have been possible; and that by inaction Mexico
created an impression that it considered that the United States was meeting
its obligations under the Convention, as Mexico understood them. At the
hearings, the United States suggested that Mexico had in effect waived its
right to claim in respect of the alleged breaches of the Convention, and to
seek reparation.
44. As the Court observed in the case of Certain Phosphate Lands in Nauru
(Nauru v. Australia), "delay on the part of a claimant State may render an
application inadmissible", but "international law does not lay down any
specific time-limit in that regard" (I.C.J. Reports 1992, pp. 253-254, para.
32). In that case the Court recognized that delay might prejudice the
respondent State "with regard to both the establishment of the facts and the
determination of the content of the applicable law" (ibid., p. 255, para.
36), but it has not been suggested that there is any such risk of prejudice
in the present case. So far as inadmissibility might be based on an implied
waiver of rights, the Court considers that only a much [p 38] more prolonged
and consistent inaction on the part of Mexico than any that the United
States has alleged might be interpreted as implying such a waiver.
Furthermore, Mexico indicated a number of ways in which it brought to the
attention of the United States the breaches which it perceived of the Vienna
Convention. The fourth objection of the United States to admissibility
cannot therefore be upheld.
*
45. The Court has now to examine the objection of the United States that the
claim of Mexico is inadmissible in that Mexico should not be allowed to
invoke against the United States standards that Mexico does not follow in
its own practice. The United States contends that, in accordance with basic
principles of administration of justice and the equality of States, both
litigants are to be held accountable to the same rules of international law.
The objection in this regard was presented in terms of the interpretation of
Article 36 of the Vienna Convention, in the sense that, according to the
United States, a treaty may not be interpreted so as to impose a
significantly greater burden on any one party than the other (Diversion of
Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No. 70, p. 20).
46. The Court would recall that the United States had already raised an
objection of a similar nature before it in the LaGrand case; there, the
Court held that it need not decide "whether this argument of the United
States, if true, would result in the inadmissibility of Germany's
submissions", since the United States had failed to prove that Germany's own
practice did not conform to the standards it was demanding from the United
States (I.C.J. Reports 2001, p. 489, para. 63).
47. The Court would recall that it is in any event essential to have in mind
the nature of the Vienna Convention. It lays down certain standards to be
observed by all States parties, with a view to the "unimpeded conduct of
consular relations", which, as the Court observed in 1979, is important in
present-day international law "in promoting the development of friendly
relations among nations, and ensuring protection and assistance for aliens
resident in the territories of other States" (United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Order of 15
December 1979, I.C.J. Reports 1979, pp. 19-20, para. 40). Even if it were
shown, therefore, that Mexico's practice as regards the application of
Article 36 was not beyond reproach, this would not constitute a ground of
objection to the admissibility of Mexico's claim. The fifth objection of the
United States to admissibility cannot therefore be upheld.
***[p 39]
48. Having established that it has jurisdiction to entertain Mexico's claims
and that they are admissible, the Court will now turn to the merits of those
claims.
**
Article 36, paragraph 1
49. In its final submissions Mexico asks the Court to adjudge and declare
that,
"the United States of America, in arresting, detaining, trying, convicting,
and sentencing the 52 Mexican nationals on death row described in Mexico's
Memorial, violated its international legal obligations to Mexico, in its own
right and in the exercise of its right to diplomatic protection of its
nationals, by failing to inform, without delay, the 52 Mexican nationals
after their arrest of their right to consular notification and access under
Article 36 (1)(b) of the Vienna Convention on Consular Relations, and by
depriving Mexico of its right to provide consular protection and the 52
nationals' right to receive such protection as Mexico would provide under
Article 36 (1)(a) and (c) of the Convention".
50. The Court has already in its Judgment in the LaGrand case described
Article 36, paragraph 1, as "an interrelated regime designed to facilitate
the implementation of the system of consular protection" (I.C.J. Reports
2001, p. 492, para. 74). It is thus convenient to set out the entirety of
that paragraph.
"With a view toward facilitating the exercise of consular functions relating
to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and access to
consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any other
manner. Any communication addressed to the consular post by the person
arrested, in prison, custody or detention shall be forwarded by the said
authorities [p 40] without delay. The said authorities shall inform the
person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They shall
also have the right to visit any national of the sending State who is in
prison, custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action on behalf
of a national who is in prison, custody or detention if he expressly opposes
such action."
51. The United States as the receiving State does not deny its duty to
perform these obligations. However, it claims that the obligations apply
only to individuals shown to be of Mexican nationality alone, and not to
those of dual Mexican/United States nationality. The United States further
contends inter alia that it has not committed any breach of Article 36,
paragraph 1 (b), upon the proper interpretation of "without delay" as used
in that subparagraph.
52. Thus twomajor issues under Article 36, paragraph 1 (b), that are in
dispute between the Parties are, first, the question of the nationality of
the individuals concerned; and second, the question of the meaning to be
given to the expression "without delay". The Court will examine each of
these in turn.
53. The Parties have advanced their contentions as to nationality in three
different legal contexts. The United States has begun by making an objection
to admissibility, which the Court has already dealt with (see paragraphs 41
and 42 above). The United States has further contended that a substantial
number of the 52 persons listed in paragraph 16 above were United States
nationals and that it thus had no obligation to these individuals under
Article 36, paragraph 1 (b). The Court will address this aspect of the
matter in the following paragraphs. Finally, the Parties disagree as to
whether the requirement under Article 36, paragraph 1 (b), for the
information to be given "without delay" becomes operative upon arrest or
upon ascertainment of nationality. The Court will address this issue later
(see paragraph 63 below).
54. The Parties disagree as to what each of them must show as regards
nationality in connection with the applicability of the terms of Article 36,
paragraph 1, and as to how the principles of evidence have been met on the
facts of the cases. [p 41]
55. Both Parties recognize the well-settled principle in international law
that a litigant seeking to establish the existence of a fact bears the
burden of proving it (cf. Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). Mexico
acknowledges that it has the burden of proof to show that the 52 persons
listed in paragraph 16 above were Mexican nationals to whom the provisions
of Article 36, paragraph 1 (b), in principle apply. It claims it has met
this burden by providing to the Court the birth certificates of these
nationals, and declarations from 42 of them that they have not acquired U.S.
nationality. Mexico further contends that the burden of proof lies on the
United States should it wish to contend that particular arrested persons of
Mexican nationality were, at the relevant time, also United States
nationals.
56. The United States accepts that in such cases it has the burden of proof
to demonstrate United States nationality, but contends that nonetheless the
"burden of evidence" as to this remains with Mexico. This distinction is
explained by the United States as arising out of the fact that persons of
Mexican nationality may also have acquired United States citizenship by
operation of law, depending on their parents' dates and places of birth,
places of residency, marital status at time of their birth and so forth. In
the view of the United States "virtually all such information is in the
hands of Mexico through the now 52 individuals it represents". The United
States contends that it was the responsibility of Mexico to produce such
information, which responsibility it has not discharged.
57. The Court finds that it is for Mexico to show that the 52 persons listed
in paragraph 16 above held Mexican nationality at the time of their arrest.
The Court notes that to this end Mexico has produced birth certificates and
declarations of nationality, whose contents have not been challenged by the
United States.
The Court observes further that the United States has, however, questioned
whether some of these individuals were not also United States nationals.
Thus, the United States has informed the Court that, "in the case of
defendant Ayala (case No. 2) we are close to certain that Ayala is a United
States citizen", and that this could be confirmed with absolute certainty if
Mexico produced facts about this matter. Similarly Mr. Avena (case No. 1)
was said to be "likely" to be a United States citizen, and there was "some
possibility" that some 16 other defendants were United States citizens. As
to six others, the United States said it "cannot rule out the possibility"
of United States nationality. The Court takes the view that it was for the
United States to demonstrate that this was so and to furnish the Court with
all information on the matter in its possession. In so far as relevant data
on that matter are said by the United States to lie within the knowledge of
Mexico, it was for the United States to have [p 42] sought that information
from the Mexican authorities. The Court cannot accept that, because such
information may have been in part in the hands of Mexico, it was for Mexico
to produce such information. It was for the United States to seek such
information, with sufficient specificity, and to demonstrate both that this
was done and that the Mexican authorities declined or failed to respond to
such specific requests. At no stage, however, has the United States shown
the Court that it made specific enquiries of those authorities about
particular cases and that responses were not forthcoming. The Court
accordingly concludes that the United States has not met its burden of proof
in its attempt to show that persons of Mexican nationality were also United
States nationals.
The Court therefore finds that, as regards the 52 persons listed in
paragraph 16 above, the United States had obligations under Article 36,
paragraph 1 (b).
58. Mexico asks the Court to find that
"the obligation in Article 36, paragraph 1, of the Vienna Convention
requires notification of consular rights and a reasonable opportunity for
consular access before the competent authorities of the receiving State take
any action potentially detrimental to the foreign national's rights".
59. Mexico contends that, in each of the 52 cases before the Court, the
United States failed to provide the arrested persons with information as to
their rights under Article 36, paragraph 1 (b), "without delay". It alleges
that in one case, Mr. Esquivel (case No. 7), the arrested person was
informed, but only some 18 months after the arrest, while in another, that
of Mr. Juarez (case No. 10), information was given to the arrested person of
his rights some 40 hours after arrest. Mexico contends that this still
constituted a violation, because "without delay" is to be understood as
meaning "immediately", and in any event before any interrogation occurs.
Mexico further draws the Court's attention to the fact that in this case a
United States court found that there had been a violation of Article 36,
paragraph 1 (b), and claims that the United States cannot disavow such a
determination by its own courts. In an Annex to its Memorial, Mexico
mentions that, in a third case (Mr. Ayala, case No. 2), the accused was
informed of his rights upon his arrival on death row, some four years after
arrest. Mexico contends that in the remaining cases the Mexicans concerned
were in fact never so informed by the United States authorities.
60. The United States disputes both the facts as presented by Mexico and the
legal analysis of Article 36, paragraph 1 (b), of the Vienna Convention
offered by Mexico. The United States claims that Mr. Solache (case No. 47)
was informed of his rights under the Vienna Convention [p 43] some seven
months after his arrest. The United States further claims that many of the
persons concerned were of United States nationality and that at least seven
of these individuals "appear to have affirmatively claimed to be United
States citizens at the time of their arrest". These cases were said to be
those of Avena (case No. 1), Ayala (case No. 2), Benavides (case No. 3),
Ochoa (case No. 18), Salcido (case No. 22), Tafoya (case No. 24), and
Alvarez (case No. 30). In the view of the United States no duty of consular
information arose in these cases. Further, in the contention of the United
States, in the cases of Mr. Ayala (case No. 2) and Mr. Salcido (case No. 22)
there was no reason to believe that the arrested persons were Mexican
nationals at any stage; the information in the case of Mr. Juarez (case No.
10) was given "without delay".
61. The Court thus now turns to the interpretation of Article 36, paragraph
1 (b), having found in paragraph 57 above that it is applicable to the 52
persons listed in paragraph 16. It begins by noting that Article 36,
paragraph 1 (b), contains three separate but interrelated elements: the
right of the individual concerned to be informed without delay of his rights
under Article 36, paragraph 1 (b); the right of the consular post to be
notified without delay of the individual's detention, if he so requests; and
the obligation of the receiving State to forward without delay any
communication addressed to the consular post by the detained person.
62. The third element of Article 36, paragraph 1 (b), has not been raised on
the facts before the Court. The Court thus begins with the right of an
arrested or detained individual to information.
63. The Court finds that the duty upon the detaining authorities to give the
Article 36, paragraph 1 (b), information to the individual arises once it is
realized that the person is a foreign national, or once there are grounds to
think that the person is probably a foreign national. Precisely when this
may occur will vary with circumstances. The United States Department of
State booklet, Consular Notification and Access -- Instructions for Federal,
State and Local Law Enforcement and Other Officials Regarding Foreign
Nationals in the United States and the Rights of Consular Officials to
Assist Them, issued to federal, state and local authorities in order to
promote compliance with Article 36 of the Vienna Convention points out in
such cases that: "most, but not all, persons born outside the United States
are not [citizens]. Unfamiliarity with English may also indicate foreign
nationality." The Court notes that when an arrested person himself claims to
be of United States nationality, the realization by the authorities that he
is not in fact a United States national, or grounds for that realization, is
likely to come somewhat later in time.[p 44]
64. The United States has told the Court that millions of aliens reside,
either legally or illegally, on its territory, and moreover that its laws
concerning citizenship are generous. The United States has also pointed out
that it is a multicultural society, with citizenship being held by persons
of diverse appearance, speaking many languages. The Court appreciates that
in the United States the language that a person speaks, or his appearance,
does not necessarily indicate that he is a foreign national. Nevertheless,
and particularly in view of the large numbers of foreign nationals living in
the United States, these very circumstances suggest that it would be
desirable for enquiry routinely to be made of the individual as to his
nationality upon his detention, so that the obligations of the Vienna
Convention may be complied with. The United States has informed the Court
that some of its law enforcement authorities do routinely ask persons taken
into detention whether they are United States citizens. Indeed, were each
individual to be told at that time that, should he be a foreign national, he
is entitled to ask for his consular post to be contacted, compliance with
this requirement under Article 36, paragraph 1 (b), would be greatly
enhanced. The provision of such information could parallel the reading of
those rights of which any person taken into custody in connection with a
criminal offence must be informed prior to interrogation by virtue of what
in the United States is known as the "Miranda rule"; these rights include,
inter alia, the right to remain silent, the right to have an attorney
present during questioning, and the right to have an attorney appointed at
government expense if the person cannot afford one. The Court notes that,
according to the United States, such a practice in respect of the Vienna
Convention rights is already being followed in some local jurisdictions.
65. Bearing in mind the complexities explained by the United States, the
Court now begins by examining the application of Article 36, paragraph 1
(b), of the Vienna Convention to the 52 cases. In 45 of these cases, the
Court has no evidence that the arrested persons claimed United States
nationality, or were reasonably thought to be United States nationals, with
specific enquiries being made in timely fashion to verify such dual
nationality. The Court has explained in paragraph 57 above what inquiries it
would have expected to have been made, within a short time period, and what
information should have been provided to the Court.
66. Seven persons, however, are asserted by the United States to have stated
at the time of arrest that they were United States citizens. Only in the
case of Mr. Salcido (case No. 22) has the Court been provided by the United
States with evidence of such a statement. This has been acknowledged by
Mexico. Further, there has been no evidence before the Court to suggest that
there were in this case at the same time also indications of Mexican
nationality, which should have caused rapid enquiry by the arresting
authorities and the providing of consular information "without delay".
Mexico has accordingly not shown that in [p 45] the case of Mr. Salcido the
United States violated its obligations under Article 36, paragraph 1 (b).
67. In the case of Mr. Ayala (case No. 2), while he was identified in a
court record in 1989 (three years after his arrest) as a United States
citizen, there is no evidence to show this Court that the accused did indeed
claim upon his arrest to be a United States citizen. The Court has not been
informed of any enquiries made by the United States to confirm these
assertions of United States nationality.
68. In the five other cases listed by the United States as cases where the
individuals "appear to have affirmatively claimed to be United States
citizens at the time of their arrest", no evidence has been presented that
such a statement was made at the time of arrest.
69. Mr. Avena (case No. 1) is listed in his arrest report as having been
born in California. His prison records describe him as of Mexican
nationality. The United States has not shown the Court that it was engaged
in enquiries to confirm United States nationality.
70. Mr. Benavides (case No. 3) was carrying an Immigration and
Naturalization Service immigration card at the time of arrest in 1991. The
Court has not been made aware of any reason why the arresting authorities
should nonetheless have believed at the time of arrest that he was a United
States national. The evidence that his defence counsel in June 1993 informed
the court that Mr. Benavides had become a United States citizen is
irrelevant to what was understood as to his nationality at time of arrest.
71. So far as Mr. Ochoa is concerned (case No. 18), the Court observes that
his arrest report in 1990 refers to him as having been born in Mexico, an
assertion that is repeated in a second police report. Some two years later
details in his court record refer to him as a United States citizen born in
Mexico. The Court is not provided with any further details. The United
States has not shown this Court that it was aware of, or was engaged in
active enquiry as to, alleged United States nationality at the time of his
arrest.
72. Mr. Tafoya (case No. 24) was listed on the police booking sheet as
having been born in Mexico. No further information is provided by the United
States as to why this was done and what, if any, further enquiries were
being made concerning the defendant's nationality.
73. Finally, the last of the seven persons referred to by the United States
in this group, Mr. Alvarez (case No. 30), was arrested in Texas on 20 June
1998. Texas records identified him as a United States citizen. Within three
days of his arrest, however, the Texas authorities were [p 46] informed that
the Immigration and Naturalization Service was holding investigations to
determine whether, because of a previous conviction, Mr. Alvarez was subject
to deportation as a foreign national. The Court has not been presented with
evidence that rapid resolution was sought as to the question of Mr.
Alvarez's nationality.
74. The Court concludes that Mexico has failed to prove the violation by the
United States of its obligations under Article 36, paragraph 1 (b), in the
case of Mr. Salcido (case No. 22), and his case will not be further
commented upon. On the other hand, as regards the other individuals who are
alleged to have claimed United States nationality on arrest, whose cases
have been considered in paragraphs 67 to 73 above, the argument of the
United States cannot be upheld.
75. The question nonetheless remains as to whether, in each of the 45 cases
referred to in paragraph 65 and of the six cases mentioned in paragraphs 67
to 73, the United States did provide the required information to the
arrested persons "without delay". It is to that question that the Court now
turns.
76. The Court has been provided with declarations from a number of the
Mexican nationals concerned that attest to their never being informed of
their rights under Article 36, paragraph 1 (b). The Court at the outset
notes that, in 47 such cases, the United States nowhere challenges this fact
of information not being given. Nevertheless, in the case of Mr. Hernandez
(case No. 34), the United States observes that
"Although the [arresting] officer did not ask Hernandez Llanas whether he
wanted them to inform the Mexican Consulate of his arrest, it was certainly
not unreasonable for him to assume that an escaped convict would not want
the Consulate of the country from which he escaped notified of his arrest."
The Court notes that the clear duty to provide consular information under
Article 36, paragraph 1 (b), does not invite assumptions as to what the
arrested person might prefer, as a ground for not informing him. It rather
gives the arrested person, once informed, the right to say he nonetheless
does not wish his consular post to be notified. It necessarily follows that
in each of these 47 cases, the duty to inform "without delay" has been
violated.
77. In four cases, namely Ayala (case No. 2), Esquivel (case No. 7), Juarez
(case No. 10) and Solache (case No. 47), some doubts remain as to whether
the information that was given was provided without delay. For these, some
examination of the term is thus necessary.
78. This is a matter on which the Parties have very different views. [p 47]
According to Mexico, the timing of the notice to the detained person "is
critical to the exercise of the rights provided by Article 36" and the
phrase "without delay" in paragraph 1 (b) requires "unqualified immediacy".
Mexico further contends that, in view of the object and purpose of Article
36, which is to enable "meaningful consular assistance" and the safeguarding
of the vulnerability of foreign nationals in custody,
"consular notification . . . must occur immediately upon detention and prior
to any interrogation of the foreign detainee, so that the consul may offer
useful advice about the foreign legal system and provide assistance in
obtaining counsel before the foreign national makes any ill-informed
decisions or the State takes any action potentially prejudicial to his
rights".
79. Thus, in Mexico's view, it would follow that in any case in which a
foreign national was interrogated before being informed of his rights under
Article 36, there would ipso facto be a breach of that Article, however
rapidly after the interrogation the information was given to the foreign
national. Mexico accordingly includes the case of Mr. Juarez among those
where it claims violation of Article 36, paragraph 1 (b), as he was
interrogated before being informed of his consular rights, some 40 hours
after arrest.
80. Mexico has also invoked the travaux preparatoires of the Vienna
Convention in support of its interpretation of the requirement that the
arrested person be informed "without delay" of the right to ask that the
consular post be notified. In particular, Mexico recalled that the phrase
proposed to the Conference by the International Law Commission, "without
undue delay", was replaced by the United Kingdom proposal to delete the word
"undue". The United Kingdom representative had explained that this would
avoid the implication that "some delay was permissible" and no delegate had
expressed dissent with the USSR and Japanese statements that the result of
the amendment would be to require information "immediately".
81. The United States disputed this interpretation of the phrase "without
delay". In its view it did not mean "immediately, and before interrogation"
and such an understanding was supported neither by the terminology, nor by
the object and purpose of the Vienna Convention, nor by its travaux
preparatoires. In the booklet referred to in paragraph 63 above, the State
Department explains that "without delay" means "there should be no
deliberate delay" and that the required action should be taken "as soon as
reasonably possible under the circumstances". It was normally to be expected
that "notification to consular officers" would have been made "within 24 to
72 hours of the arrest or detention". The United States further contended
that such an [p 48] interpretation of the words "without delay" would be
reasonable in itself and also allow a consistent interpretation of the
phrase as it occurs in each of three different occasions in Article 36,
paragraph 1 (b). As for the travaux preparatoires, they showed only that
undue or deliberate delay had been rejected as unacceptable.
82. According to the United States, the purpose of Article 36 was to
facilitate the exercise of consular functions by a consular officer:
"The significance of giving consular information to a national is thus
limited . . . It is a procedural device that allows the foreign national to
trigger the related process of notification . . . [It] cannot possibly be
fundamental to the criminal justice process."
83. The Court now addresses the question of the proper interpretation of the
expression "without delay" in the light of arguments put to it by the
Parties. The Court begins by noting that the precise meaning of "without
delay", as it is to be understood in Article 36, paragraph 1 (b), is not
defined in the Convention. This phrase therefore requires interpretation
according to the customary rules of treaty interpretation reflected in
Articles 31 and 32 of the Vienna Convention on the Law of Treaties.
84. Article 1 of the Vienna Convention on Consular Relations, which defines
certain of the terms used in the Convention, offers no definition of the
phrase "without delay". Moreover, in the different language versions of the
Convention various terms are employed to render the phrases "without delay"
in Article 36 and "immediately" in Article 14. The Court observes that
dictionary definitions, in the various languages of the Vienna Convention,
offer diverse meanings of the term "without delay" (and also of
"immediately"). It is therefore necessary to look elsewhere for an
understanding of this term.
85. As for the object and purpose of the Convention, the Court observes that
Article 36 provides for consular officers to be free to communicate with
nationals of the sending State, to have access to them, to visit and speak
with them and to arrange for their legal representation. It is not
envisaged, either in Article 36, paragraph 1, or elsewhere in the
Convention, that consular functions entail a consular officer himself or
herself acting as the legal representative or more directly engaging in the
criminal justice process. Indeed, this is confirmed by the wording of
Article 36, paragraph 2, of the Convention. Thus, neither the terms of the
Convention as normally understood, nor its object and purpose, suggest that
"without delay" is to be understood as "immediately upon arrest and before
interrogation".
86. The Court further notes that, notwithstanding the uncertainties in the
travaux preparatoires, they too do not support such an interpreta-[p
49]tion. During the diplomatic conference, the conference's expert, former
Special Rapporteur of the International Law Commission, explained to the
delegates that the words "without undue delay" had been introduced by the
Commission, after long discussion in both the plenary and drafting
committee, to allow for special circumstances which might permit information
as to consular notification not to be given at once. Germany, the only one
of two States to present an amendment, proposed adding "but at latest within
one month". There was an extended discussion by many different delegates as
to what such outer time-limit would be acceptable. During that debate no
delegate proposed "immediately". The shortest specific period suggested was
by the United Kingdom, namely "promptly" and no later than "48 hours"
afterwards. Eventually, in the absence of agreement on a precise time
period, the United Kingdom's other proposal to delete the word "undue" was
accepted as the position around which delegates could converge. It is also
of interest that there is no suggestion in the travaux that the phrase
"without delay" might have different meanings in each of the three sets of
circumstances in which it is used in Article 36, paragraph 1 (b).
87. The Court thus finds that "without delay" is not necessarily to be
interpreted as "immediately" upon arrest. It further observes that during
the Conference debates on this term, no delegate made any connection with
the issue of interrogation. The Court considers that the provision in
Article 36, paragraph 1 (b), that the receiving State authorities "shall
inform the person concerned without delay of his rights" cannot be
interpreted to signify that the provision of such information must
necessarily precede any interrogation, so that the commencement of
interrogation before the information is given would be a breach of Article
36.
88. Although, by application of the usual rules of interpretation, "without
delay" as regards the duty to inform an individual under Article 36,
paragraph 1 (b), is not to be understood as necessarily meaning "immediately
upon arrest", there is nonetheless a duty upon the arresting authorities to
give that information to an arrested person as soon as it is realized that
the person is a foreign national, or once there are grounds to think that
the person is probably a foreign national.
89. With one exception, no information as to entitlement to consular
notification was given in any of the cases cited in paragraph 77 within any
of the various time periods suggested by the delegates to the Conference on
the Vienna Convention, or by the United States itself (see paragraphs 81 and
86 above). Indeed, the information was given either not at all or at periods
very significantly removed from the time of arrest. In the case of Mr.
Juarez (case No. 10), the defendant was informed of his [p 50] consular
rights 40 hours after his arrest. The Court notes, however, that Mr.
Juarez's arrest report stated that he had been born in Mexico; moreover,
there had been indications of his Mexican nationality from the time of his
initial interrogation by agents of the Federal Bureau of Investigation (FBI)
following his arrest. It follows that Mr. Juarez's Mexican nationality was
apparent from the outset of his detention by the United States authorities.
In these circumstances, in accordance with its interpretation of the
expression "without delay" (see paragraph 88 above), the Court concludes
that the United States violated the obligation incumbent upon it under
Article 36, paragraph 1 (b), to inform Mr. Juarez without delay of his
consular rights. The Court notes that the same finding was reached by a
California Superior Court, albeit on different grounds.
90. The Court accordingly concludes that, with respect to each of the
individuals listed in paragraph 16, with the exception of Mr. Salcido (case
No. 22; see paragraph 74 above), the United States has violated its
obligation under Article 36, paragraph 1 (b), of the Vienna Convention to
provide information to the arrested person.
91. As noted above, Article 36, paragraph 1 (b), contains three elements.
Thus far, the Court has been dealing with the right of an arrested person to
be informed that he may ask for his consular post to be notified. The Court
now turns to another aspect of Article 36, paragraph 1 (b). The Court finds
the United States is correct in observing that the fact that a Mexican
consular post was not notified under Article 36, paragraph 1 (b), does not
of necessity show that the arrested person was not informed of his rights
under that provision. He may have been informed and declined to have his
consular post notified. The giving of the information is relevant, however,
for satisfying the element in Article 36, paragraph 1 (b), on which the
other two elements therein depend.
92. In only two cases has the United States claimed that the arrested person
was informed of his consular rights but asked for the consular post not to
be notified. These are Mr. Juarez (case No. 10) and Mr. Solache (case No.
47).
93. The Court is satisfied that when Mr. Juarez (case No. 10) was informed
of his consular rights 40 hours after his arrest (see paragraph 89) he chose
not to have his consular post notified. As regards Mr. Solache (case No.
47), however, it is not sufficiently clear to the Court, on the evidence
before it, that he requested that his consular post should not be notified.
Indeed, the Court has not been provided with any reasons as to why, if a
request of non-notification was made, the consular post was then notified
some three months later.
94. In a further three cases, the United States alleges that the consular
post was formally notified of the detention of one of its Mexican [p 51]
nationals without prior information to the individual as to his consular
rights. These are Mr. Covarrubias (case No. 6), Mr. Hernandez (case No. 34)
and Mr. Reyes (case No. 54). The United States further contends that the
Mexican authorities were contacted regarding the case of Mr. Loza (case No.
52).
95. The Court notes that, in the case of Mr. Covarrubias (case No. 6), the
consular authorities learned from third parties of his arrest shortly after
it occurred. Some 16 months later, a court-appointed interpreter requested
that the consulate intervene in the case prior to trial. It would appear
doubtful whether an interpreter can be considered a competent authority for
triggering the interrelated provisions of Article 36, paragraph 1 (b), of
the Vienna Convention. In the case of Mr. Reyes (case No. 34), the United
States has simply told the Court that an Oregon Department of Justice
attorney had advised United States authorities that both the District
Attorney and the arresting detective advised the Mexican consular
authorities of his arrest. No information is given as to when this occurred,
in relation to the date of his arrest. Mr. Reyes did receive assistance
before his trial. In these two cases, the Court considers that, even on the
hypothesis that the conduct of the United States had no serious consequences
for the individuals concerned, it did nonetheless constitute a violation of
the obligations incumbent upon the United States under Article 36, paragraph
1 (b).
96. In the case of Mr. Loza (case No. 52), a United States Congressman from
Ohio contacted the Mexican Embassy on behalf of Ohio prosecutors, some four
months after the accused's arrest, "to enquire about the procedures for
obtaining a certified copy of Loza's birth certificate". The Court has not
been provided with a copy of the Congressman's letter and is therefore
unable to ascertain whether it explained that Mr. Loza had been arrested.
The response from the Embassy (which is also not included in the
documentation provided to the Court) was passed by the Congressman to the
prosecuting attorney, who then asked the Civil Registry of Guadalajara for a
copy of the birth certificate. This request made no specific mention of Mr.
Loza's arrest. Mexico contends that its consulate was never formally
notified of Mr. Loza's arrest, of which it only became aware after he had
been convicted and sentenced to death. Mexico includes the case of Mr. Loza
among those in which the United States was in breach of its obligation of
consular notification. Taking account of all these elements, and in
particular of the fact that the Embassy was contacted four months after the
arrest, and that the consular post became aware of the defendant's detention
only after he had been convicted and sentenced, the Court concludes that in
the case of Mr. Loza the United States violated the obligation of consular
notification without delay incumbent upon it under Article 36, paragraph 1
(b).[p 52]
97. Mr. Hernandez (case No. 34) was arrested in Texas on Wednesday 15
October 1997. The United States authorities had no reason to believe he
might have American citizenship. The consular post was notified the
following Monday, that is five days (corresponding to only three working
days) thereafter. The Court finds that, in the circumstances, the United
States did notify the consular post without delay, in accordance with its
obligation under Article 36, paragraph 1 (b).
98. In the first of its final submissions, Mexico also asks the Court to
find that the violations it ascribes to the United States in respect of
Article 36, paragraph 1 (b), have also deprived "Mexico of its right to
provide consular protection and the 52 nationals' right to receive such
protection as Mexico would provide under Article 36 (1)(a) and (c) of the
Convention".
99. The relationship between the three subparagraphs of Article 36,
paragraph 1, has been described by the Court in its Judgment in the LaGrand
case (I.C.J. Judgments 2001, p. 492, para. 74) as "an interrelated regime".
The legal conclusions to be drawn from that interrelationship necessarily
depend upon the facts of each case. In the LaGrand case, the Court found
that the failure for 16 years to inform the brothers of their right to have
their consul notified effectively prevented the exercise of other rights
that Germany might have chosen to exercise under subparagraphs (a) and (c).
100. It is necessary to revisit the interrelationship of the three
subparagraphs of Article 36, paragraph 1, in the light of the particular
facts and circumstances of the present case.
101. The Court would first recall that, in the case of Mr. Juarez (case No.
10)(see paragraph 93 above), when the defendant was informed of his rights,
he declined to have his consular post notified. Thus in this case there was
no violation of either subparagraph (a) or subparagraph (c) of Article 36,
paragraph 1.
102. In the remaining cases, because of the failure of the United States to
act in conformity with Article 36, paragraph 1 (b), Mexico was in effect
precluded (in some cases totally, and in some cases for prolonged periods of
time) from exercising its right under paragraph 1 (a) to communicate with
its nationals and have access to them. As the Court has already had occasion
to explain, it is immaterial whether Mexico would have offered consular
assistance, "or whether a different verdict would have been rendered. It is
sufficient that the Convention conferred these rights" (I.C.J. Reports 2001,
p. 492, para. 74), which might have been acted upon.
103. The same is true, pari passu, of certain rights identified in
subparagraph (c): "consular officers shall have the right to visit a
national of the sending State who is in prison, custody or detention, and to
converse and correspond with him . . ."[p 54]
104. On the other hand, and on the particular facts of this case, no such
generalized answer can be given as regards a further entitlement mentioned
in subparagraph (c), namely, the right of consular officers "to arrange for
[the] legal representation" of the foreign national. Mexico has laid much
emphasis in this litigation upon the importance of consular officers being
able to arrange for such representation before and during trial, and
especially at sentencing, in cases in which a severe penalty may be imposed.
Mexico has further indicated the importance of any financial or other
assistance that consular officers may provide to defence counsel, inter alia
for investigation of the defendant's family background and mental condition,
when such information is relevant to the case. The Court observes that the
exercise of the rights of the sending State under Article 36, paragraph 1
(c), depends upon notification by the authorities of the receiving State. It
may be, however, that information drawn to the attention of the sending
State by other means may still enable its consular officers to assist in
arranging legal representation for its national. In the following cases, the
Mexican consular authorities learned of their national's detention in time
to provide such assistance, either through notification by United States
authorities (albeit belatedly in terms of Article 36, paragraph 1 (b)) or
through other channels: Benavides (case No. 3); Covarrubias (case No. 6);
Esquivel (case No. 7); Hoyos (case No. 9); Mendoza (case No. 17); Ramirez
(case No. 20); Sanchez (case No. 23); Verano (case No. 27); Zamudio (case
No. 29); Gomez (case No. 33); Hernandez (case No. 34); Ramirez (case No.
41); Rocha (case No. 42); Solache (case No. 47); Camargo (case No. 49) and
Reyes (case No. 54).
105. In relation to Mr. Manriquez (case No. 14), the Court lacks precise
information as to when his consular post was notified. It is merely given to
understand that it was two years prior to conviction, and that Mr. Manriquez
himself had never been informed of his consular rights. There is also
divergence between the Parties in regard to the case of Mr. Fuentes (case
No. 15), where Mexico claims it became aware of his detention during trial
and the United States says this occurred during jury selection, prior to the
actual commencement of the trial. In the case of Mr. Arias (case No. 44),
the Mexican authorities became aware of his detention less than one week
before the commencement of the trial. In those three cases, the Court
concludes that the United States violated its obligations under Article 36,
paragraph 1 (c).
106. On this aspect of the case, the Court thus concludes:
(1) that the United States committed breaches of the obligation incumbent
upon it under Article 36, paragraph 1 (b), of the Vienna Convention to
inform detained Mexican nationals of their rights under [p 54] that
paragraph, in the case of the following 51 individuals: Avena (case No. 1),
Ayala (case No. 2), Benavides (case No. 3), Carrera (case No. 4), Contreras
(case No. 5), Covarrubias (case No. 6), Esquivel (case No. 7), Gomez (case
No. 8), Hoyos (case No. 9), Juarez (case No. 10), Lopez (case No. 11),
Lupercio (case No. 12), Maciel (case No. 13), Manriquez (case No. 14),
Fuentes (case No. 15), Martinez (case No. 16), Mendoza (case No. 17), Ochoa
(case No. 18), Parra (case No. 19), Ramirez (case No. 20), Salazar (case No.
21), Sanchez (case No. 23), Tafoya (case No. 24), Valdez (case No. 25),
Vargas (case No. 26), Verano (case No. 27), Zamudio (case No. 29), Alvarez
(case No. 30), Fierro (case No. 31), Garcia (case No. 32), Gomez (case No.
33), Hernandez (case No. 34), Ibarra (case No. 35), Leal (case No. 36),
Maldonado (case No. 37), Medellin (case No. 38), Moreno (case No. 39), Plata
(case No. 40), Ramirez (case No. 41), Rocha (case No. 42), Regalado (case
No. 43), Arias (case No. 44), Caballero (case No. 45), Flores (case No. 46),
Solache (case No. 47), Fong (case No. 48), Camargo (case No. 49), Perez
(case No. 51), Loza (case No. 52), Torres (case No. 53) and Reyes (case No.
54);
(2) that the United States committed breaches of the obligation incumbent
upon it under Article 36, paragraph 1 (b) to notify the Mexican consular
post of the detention of the Mexican nationals listed in subparagraph (1)
above, except in the cases of Mr. Juarez (No. 10) and Mr. Hernandez (No.
34);
(3) that by virtue of its breaches of Article 36, paragraph 1 (b), as
described in subparagraph (2) above, the United States also violated the
obligation incumbent upon it under Article 36, paragraph 1 (a), of the
Vienna Convention to enable Mexican consular officers to communicate with
and have access to their nationals, as well as its obligation under
paragraph 1 (c) of that Article regarding the right of consular officers to
visit their detained nationals;
(4) that the United States, by virtue of these breaches of Article 36,
paragraph 1 (b), also violated the obligation incumbent upon it under
paragraph 1 (c) of that Article to enable Mexican consular officers to
arrange for legal representation of their nationals in the case of the
following individuals: Avena (case No. 1), Ayala (case No. 2), Carrera (case
No. 4), Contreras (case No. 5), Gomez (case No. 8), Lopez (case No. 11),
Lupercio (case No. 12), Maciel (case No. 13), Manriquez (case No. 14),
Fuentes (case No. 15), Martinez (case No. 16), Ochoa (case No. 18), Parra
(case No. 19), Salazar (case No. 21), Tafoya (case No. 24), Valdez (case No.
25), Vargas (case No. 26), Alvarez (case No. 30), Fierro (case No. 31),
Garcia (case No. 32), Ibarra (case No. 35), Leal (case No. 36), Maldonado
(case No. 37), Medellin (case No. 38), Moreno (case No. 39), Plata (case No.
40), Regalado (case No. 43), Arias (case No. 44), Caballero (case No. 45),
[p 55] Flores (case No. 46), Fong (case No. 48), Perez (case No. 51), Loza
(case No. 52) and Torres (case No. 53).
*
Article 36, paragraph 2
107. In its third final submission Mexico asks the Court to adjudge and
declare that
"the United States violated its obligations under Article 36 (2) of the
Vienna Convention by failing to provide meaningful and effective review and
reconsideration of convictions and sentences impaired by a violation of
Article 36 (1)".
108. Article 36, paragraph 2, provides:
"The rights referred to in paragraph 1 of this article shall be exercised in
conformity with the laws and regulations of the receiving State, subject to
the proviso, however, that the said laws and regulations must enable full
effect to be given to the purposes for which the rights accorded under this
article are intended."
109. In this connection, Mexico has argued that the United States
"By applying provisions of its municipal law to defeat or foreclose remedies
for the violation of rights conferred by Article 36 -- thus failing to
provide meaningful review and reconsideration of severe sentences imposed in
proceedings that violated Article 36 -- . . . has violated, and continues to
violate, the Vienna Convention."
More specifically, Mexico contends that:
"The United States uses several municipal legal doctrines to prevent finding
any legal effect from the violations of Article 36. First, despite this
Court's clear analysis in LaGrand, U.S. courts, at both the state and
federal level, continue to invoke default doctrines to bar any review of
Article 36 violations -- even when the national had been unaware of his
rights to consular notification and communication and thus his ability to
raise their violation as an issue at trial, due to the competent
authorities' failure to comply with Article 36."
110. Against this contention by Mexico, the United States argues that:
"the criminal justice systems of the United States address all errors [p 56]
in process through both judicial and executive clemency proceedings, relying
upon the latter when rules of default have closed out the possibility of the
former. That is, the 'laws and regulations' of the United States provide for
the correction of mistakes that may be relevant to a criminal defendant to
occur through a combination of judicial review and clemency. These processes
together, working with other competent authorities, give full effect to the
purposes for which Article 36 (1) is intended, in conformity with Article 36
(2). And, insofar as a breach of Article 36 (1) has occurred, these
procedures satisfy the remedial function of Article 36 (2) by allowing the
United States to provide review and reconsideration of convictions and
sentences consistent with LaGrand."
111. The "procedural default" rule in United States law has already been
brought to the attention of the Court in the LaGrand case. The following
brief definition of the rule was provided by Mexico in its Memorial in this
case and has not been challenged by the United States: "a defendant who
could have raised, but fails to raise, a legal issue at trial will generally
not be permitted to raise it in future proceedings, on appeal or in a
petition for a writ of habeas corpus". The rule requires exhaustion of
remedies, inter alia, at the state level and before a habeas corpus motion
can be filed with federal courts. In the LaGrand case, the rule in question
was applied by United States federal courts; in the present case, Mexico
also complains of the application of the rule in certain state courts of
criminal appeal.
112. The Court has already considered the application of the "procedural
default" rule, alleged by Mexico to be a hindrance to the full
implementation of the international obligations of the United States under
Article 36, in the LaGrand case, when the Court addressed the issue of its
implications for the application of Article 36, paragraph 2, of the Vienna
Convention. The Court emphasized that "a distinction must be drawn between
that rule as such and its specific application in the present case". The
Court stated:
"In itself, the rule does not violate Article 36 of the Vienna Convention.
The problem arises when the procedural default rule does not allow the
detained individual to challenge a conviction and sentence by claiming, in
reliance on Article 36, paragraph 1, of the Convention, that the competent
national authorities failed to comply with their obligation to provide the
requisite consular information 'without delay', thus preventing the person
from seeking and obtaining consular assistance from the sending State."
(I.C.J. Reports 2001, p. 497, para. 90.) [p 57]
On this basis, the Court concluded that "the procedural default rule
prevented counsel for the LaGrands to effectively challenge their
convictions and sentences other than on United States constitutional
grounds" (ibid., para. 91). This statement of the Court seems equally valid
in relation to the present case, where a number of Mexican nationals have
been placed exactly in such a situation.
113. The Court will return to this aspect below, in the context of Mexico's
claims as to remedies. For the moment, the Court simply notes that the
procedural default rule has not been revised, nor has any provision been
made to prevent its application in cases where it has been the failure of
the United States itself to inform that may have precluded counsel from
being in a position to have raised the question of a violation of the Vienna
Convention in the initial trial. It thus remains the case that the
procedural default rule may continue to prevent courts from attaching legal
significance to the fact, inter alia, that the violation of the rights set
forth in Article 36, paragraph 1, prevented Mexico, in a timely fashion,
from retaining private counsel for certain nationals and otherwise assisting
in their defence. In such cases, application of the procedural default rule
would have the effect of preventing "full effect [from being] given to the
purposes for which the rights accorded under this article are intended", and
thus violate paragraph 2 of Article 36. The Court notes moreover that in
several of the cases cited in Mexico's final submissions the procedural
default rule has already been applied, and that in others it could be
applied at subsequent stages in the proceedings. However, in none of the
cases, save for the three mentioned in paragraph 114 below, have the
criminal proceedings against the Mexican nationals concerned already reached
a stage at which there is no further possibility of judicial re-examination
of those cases; that is to say, all possibility is not yet excluded of
"review and reconsideration" of conviction and sentence, as called for in
the LaGrand case, and as explained further in paragraphs 128 and following
below. It would therefore be premature for the Court to conclude at this
stage that, in those cases, there is already a violation of the obligations
under Article 36, paragraph 2, of the Vienna Convention.
114. By contrast, the Court notes that in the case of three Mexican
nationals, Mr. Fierro (case No. 31), Mr. Moreno (case No. 39), and Mr.
Torres (case No. 53), conviction and sentence have become final. Moreover,
in the case of Mr. Torres the Oklahoma Court of Criminal Appeals has set an
execution date (see paragraph 21 above, in fine). The Court must therefore
conclude that, in relation to these three individuals, the United States is
in breach of the obligations incumbent upon it under Article 36, paragraph
2, of the Vienna Convention.
** [p 58]
Legal consequences of the breach
115. Having concluded that in most of the cases brought before the Court by
Mexico in the 52 instances, there has been a failure to observe the
obligations prescribed by Article 36, paragraph 1 (b), of the Vienna
Convention, the Court now proceeds to the examination of the legal
consequences of such a breach and of what legal remedies should be
considered for the breach.
116. Mexico in its fourth, fifth and sixth submissions asks the Court to
adjudge and declare:
"(4) that pursuant to the injuries suffered by Mexico in its own right and
in the exercise of diplomatic protection of its nationals, Mexico is
entitled to full reparation for these injuries in the form of restitutio in
integrum;
(5) that this restitution consists of the obligation to restore the status
quo ante by annulling or otherwise depriving of full force or effect the
conviction and sentences of all 52 Mexican nationals; [and]
(6) that this restitution also includes the obligation to take all measures
necessary to ensure that a prior violation of Article 36 shall not affect
the subsequent proceedings."
117. In support of its fourth and fifth submissions, Mexico argues that "It
is well-established that the primary form of reparation available to a State
injured by an internationally wrongful act is restitutio in integrum", and
that "The United States is therefore obliged to take the necessary action to
restore the status quo ante in respect of Mexico's nationals detained,
tried, convicted and sentenced in violation of their internationally
recognized rights". To restore the status quo ante, Mexico contends that
"restitution here must take the form of annulment of the convictions and
sentences that resulted from the proceedings tainted by the Article 36
violations", and that "It follows from the very nature of restitutio that,
when a violation of an international obligation is manifested in a judicial
act, that act must be annulled and thereby deprived of any force or effect
in the national legal system". Mexico therefore asks in its submissions that
the convictions and sentences of the 52 Mexican nationals be annulled, and
that, in any future criminal proceedings against these 52 Mexican nationals,
evidence obtained in breach of Article 36 of the Vienna Convention be
excluded.
118. The United States on the other hand argues:
"LaGrand's holding calls for the United States to provide, in each case,
'review and reconsideration' that 'takes account of' the viola-[p 59]tion,
not 'review and reversal', not across-the-board exclusions of evidence or
nullification of convictions simply because a breach of Article 36 (1)
occurred and without regard to its effect upon the conviction and sentence
and, not . . . 'a precise, concrete, stated result: to re-establish the
status quo ante'".
119. The general principle on the legal consequences of the commission of an
internationally wrongful act was stated by the Permanent Court of
International Justice in the Factory at Chorzow case as follows: "It is a
principle of international law that the breach of an engagement involves an
obligation to make reparation in an adequate form." (Factory at Chorzow,
Jurisdiction, 1927, P.C.I.J., Series A, No. 9, p. 21.) What constitutes
"reparation in an adequate form" clearly varies depending upon the concrete
circumstances surrounding each case and the precise nature and scope of the
injury, since the question has to be examined from the viewpoint of what is
the "reparation in an adequate form" that corresponds to the injury. In a
subsequent phase of the same case, the Permanent Court went on to elaborate
on this point as follows:
"The essential principle contained in the actual notion of an illegal act --
a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals -- is that reparation
must, as far as possible, wipe out all the consequences of the illegal act
and reestablish the situation which would, in all probability, have existed
if that act had not been committed." (Factory at Chorzow, Merits, 1928,
P.C.I.J., Series A, No. 17, p. 47.)
120. In the LaGrand case the Court made a general statement on the principle
involved as follows:
"The Court considers in this respect that if the United States,
notwithstanding its commitment [to ensure implementation of the specific
measures adopted in performance of its obligations under Article 36,
paragraph 1 (b)], should fail in its obligation of consular notification to
the detriment of German nationals, an apology would not suffice in cases
where the individuals concerned have been subjected to prolonged detention
or convicted and sentenced to severe penalties. In the case of such a
conviction and sentence, it would be incumbent upon the United States to
allow the review and reconsideration of the conviction and sentence by
taking account of the violation of the rights set forth in the Convention.
This obligation can be carried out in various ways. The choice of means must
be left to the United States." (I.C.J. Reports 2001, pp. 513-514, para.
125.)
121. Similarly, in the present case the Court's task is to determine what
would be adequate reparation for the violations of Article 36. It should be
clear from what has been observed above that the internationally wrongful
acts committed by the United States were the failure of its [p 60] competent
authorities to inform the Mexican nationals concerned, to notify Mexican
consular posts and to enable Mexico to provide consular assistance. It
follows that the remedy to make good these violations should consist in an
obligation on the United States to permit review and reconsideration of
these nationals' cases by the United States courts, as the Court will
explain further in paragraphs 128 to 134 below, with a view to ascertaining
whether in each case the violation of Article 36 committed by the competent
authorities caused actual prejudice to the defendant in the process of
administration of criminal justice.
122. The Court reaffirms that the case before it concerns Article 36 of the
Vienna Convention and not the correctness as such of any conviction or
sentencing. The question of whether the violations of Article 36, paragraph
1, are to be regarded as having, in the causal sequence of events,
ultimately led to convictions and severe penalties is an integral part of
criminal proceedings before the courts of the United States and is for them
to determine in the process of review and reconsideration. In so doing, it
is for the courts of the United States to examine the facts, and in
particular the prejudice and its causes, taking account of the violation of
the rights set forth in the Convention.
123. It is not to be presumed, as Mexico asserts, that partial or total
annulment of conviction or sentence provides the necessary and sole remedy.
In this regard, Mexico cites the recent Judgment of this Court in the case
concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium), in which the "Court ordered the cancellation of an arrest
warrant issued by a Belgian judicial official in violation of the
international immunity of the Congo Minister for Foreign Affairs". However,
the present case has clearly to be distinguished from the Arrest Warrant
case. In that case, the question of the legality under international law of
the act of issuing the arrest warrant against the Congolese Minister for
Foreign Affairs by the Belgian judicial authorities was itself the
subject-matter of the dispute. Since the Court found that act to be in
violation of international law relating to immunity, the proper legal
consequence was for the Court to order the cancellation of the arrest
warrant in question (I.C.J. Reports 2002, p. 33). By contrast, in the
present case it is not the convictions and sentences of the Mexican
nationals which are to be regarded as a violation of international law, but
solely certain breaches of treaty obligations which preceded them.
124. Mexico has further contended that the right to consular notification
and consular communication under the Vienna Convention is a fundamental
human right that constitutes part of due process in criminal proceedings and
should be guaranteed in the territory of each of the Contracting Parties to
the Vienna Convention; according to Mexico, this [p 61] right, as such, is
so fundamental that its infringement will ipso facto produce the effect of
vitiating the entire process of the criminal proceedings conducted in
violation of this fundamental right. Whether or not the Vienna Convention
rights are human rights is not a matter that this Court need decide. The
Court would, however, observe that neither the text nor the object and
purpose of the Convention, nor any indication in the travaux preparatoires,
support the conclusion that Mexico draws from its contention in that regard.
125. For these reasons, Mexico's fourth and fifth submissions cannot be
upheld.
126. The reasoning of the Court on the fifth submission of Mexico is equally
valid in relation to the sixth submission of Mexico. In elaboration of its
sixth submission, Mexico contends that
"As an aspect of restitutio in integrum, Mexico is also entitled to an order
that in any subsequent criminal proceedings against the nationals,
statements and confessions obtained prior to notification to the national of
his right to consular assistance be excluded".
Mexico argues that "The exclusionary rule applies in both common law and
civil law jurisdictions and requires the exclusion of evidence that is
obtained in a manner that violates due process obligations", and on this
basis concludes that
"The status of the exclusionary rule as a general principle of law permits
the Court to order that the United States is obligated to apply this
principle in respect of statements and confessions given to United States
law enforcement officials prior to the accused Mexican nationals being
advised of their consular rights in any subsequent criminal proceedings
against them."
127. The Court does not consider that it is necessary to enter into an
examination of the merits of the contention advanced by Mexico that the
"exclusionary rule" is "a general principle of law under Article 38(1)(c) of
the . . . Statute" of the Court. The issue raised by Mexico in its sixth
submission relates to the question of what legal consequences flow from the
breach of the obligations under Article 36, paragraph 1 -- a question which
the Court has already sufficiently discussed above in relation to the fourth
and the fifth submissons of Mexico. The Court is of the view that this
question is one which has to be examined under the concrete circumstances of
each case by the United States courts concerned in the process of their
review and reconsideration. For this reason, the sixth submission of Mexico
cannot be upheld.
128. While the Court has rejected the fourth, fifth and sixth submissions of
Mexico relating to the remedies for the breaches by the United [p 62] States
of its international obligations under Article 36 of the Vienna Convention,
the fact remains that such breaches have been committed, as the Court has
found, and it is thus incumbent upon the Court to specify what remedies are
required in order to redress the injury done to Mexico and to its nationals
by the United States through non-compliance with those international
obligations. As has already been observed in paragraph 120, the Court in the
LaGrand Judgment stated the general principle to be applied in such cases by
way of a remedy to redress an injury of this kind (I.C.J. Reports 2001, pp.
513-514, para. 125).
129. In this regard, Mexico's seventh submission also asks the Court to
adjudge and declare:
"That to the extent that any of the 52 convictions or sentences are not
annulled, the United States shall provide, by means of its own choosing,
meaningful and effective review and reconsideration of the convictions and
sentences of the 52 nationals, and that this obligation cannot be satisfied
by means of clemency proceedings or if any municipal law rule or doctrine
[that fails to attach legal significance to an Article 36 (1) violation] is
applied."
130. On this question of "review and reconsideration", the United States
takes the position that it has indeed conformed its conduct to the LaGrand
Judgment. In a further elaboration of this point, the United States argues
that "the Court said in LaGrand that the choice of means for allowing the
review and reconsideration it called for 'must be left' to the United
States", but that "Mexico would not leave this choice to the United States
but have the Court undertake the review instead and decide at once that the
breach requires the conviction and sentence to be set aside in each case".
131. In stating in its Judgment in the LaGrand case that "the United States
of America, by means of its own choosing, shall allow the review and
reconsideration of the conviction and sentence" (I.C.J. Reports 2001, p.
516, para. 128; emphasis added), the Court acknowledged that the concrete
modalities for such review and reconsideration should be left primarily to
the United States. It should be underlined, however, that this freedom in
the choice of means for such review and reconsideration is not without
qualification: as the passage of the Judgment quoted above makes abundantly
clear, such review and reconsideration has to be carried out "by taking
account of the violation of the rights set forth in the Convention" (I.C.J.
Reports 2001, p. 514, para. 125), including, in particular, the question of
the legal consequences of the violation upon the criminal proceedings that
have followed the violation.
132. The United States argues (1) "that the Court's decision in LaGrand in
calling for review and reconsideration called for a process to re-examine a
conviction and sentence in light of a breach of Article 36"; (2) that "in
calling for a process of review, the Court necessarily implied that one
legitimate result of that process might be a conclusion that the conviction
and sentence should stand"; and (3) "that the relief Mexico seeks in this [p
63] case is flatly inconsistent with the Judgment in LaGrand: it seeks
precisely the award of a substantive outcome that the LaGrand Court declined
to provide".
133. However, the Court wishes to point out that the current situation in
the United States criminal procedure, as explained by the Agent at the
hearings, is that
"If the defendant alleged at trial that a failure of consular information
resulted in harm to a particular right essential to a fair trial, an appeals
court can review how the lower court handled that claim of prejudice",
but that
"If the foreign national did not raise his Article 36 claim at trial, he may
face procedural constraints [i.e., the application of the procedural default
rule] on raising that particular claim in direct or collateral judicial
appeals" (emphasis added).
As a result, a claim based on the violation of Article 36, paragraph 1, of
the Vienna Convention, however meritorious in itself, could be barred in the
courts of the United States by the operation of the procedural default rule
(see paragraph 111 above).
134. It is not sufficient for the United States to argue that "whatever
label [the Mexican defendant] places on his claim, his right . . . must and
will be vindicated if it is raised in some form at trial" (emphasis added),
and that
"In that way, even though a failure to label the complaint as a breach of
the Vienna Convention may mean that he has technically speaking forfeited
his right to raise this issue as a Vienna Convention claim, on appeal that
failure would not bar him from independently asserting a claim that he was
prejudiced because he lacked this critical protection needed for a fair
trial." (Emphasis added.)
The crucial point in this situation is that, by the operation of the
procedural default rule as it is applied at present, the defendant is
effectively barred from raising the issue of the violation of his rights
under Article 36 of the Vienna Convention and is limited to seeking the
vindication of his rights under the United States Constitution.
*
135. Mexico, in the latter part of its seventh submission, has stated that
"this obligation [of providing review and reconsideration] cannot be [p 64]
satisfied by means of clemency proceedings". Mexico elaborates this point by
arguing first of all that "the United States's reliance on clemency
proceedings is wholly inconsistent with its obligation to provide a remedy,
as that obligation was found by this Court in LaGrand". More specifically,
Mexico contends:
"First, it is clear that the Court's direction to the United States in
LaGrand clearly contemplated that 'review and reconsideration' would be
carried out by judicial procedures . . .
Second, the Court was fully aware that the LaGrand brothers had received a
clemency hearing, during which the Arizona Pardons Board took into account
the violation of their consular rights. Accordingly, the Court determined in
LaGrand that clemency review alone did not constitute the required 'review
and reconsideration' . . .
Finally, the Court specified that the United States must 'allow the review
and reconsideration of the conviction and sentence by taking account of the
violation of the rights set forth in the Convention' . . . it is a basic
matter of U.S. criminal procedural law that courts review convictions;
clemency panels do not. With the rare exception of pardons based on actual
innocence, the focus of capital clemency review is on the propriety of the
sentence and not on the underlying conviction."
Furthermore, Mexico argues that the clemency process is in itself an
ineffective remedy to satisfy the international obligations of the United
States. It concludes: "clemency review is standardless, secretive, and
immune from judicial oversight".
Finally, in support of its contention, Mexico argues that
"the failure of state clemency authorities to pay heed to the intervention
of the U.S. Department of State in cases of death-sentenced Mexican
nationals refutes the [United States] contention that clemency review will
provide meaningful consideration of the violations of rights conferred under
Article 36".
136. Against this contention of Mexico, the United States claims that it
"gives 'full effect' to the 'purposes for which the rights accorded under
[Article 36, paragraph 1,] are intended' through executive clemency". It
argues that "the clemency process. . . is well suited to the task of
providing review and reconsideration". The United States explains that
"Clemency . . . is more than a matter of grace; it is part of the overall
scheme for ensuring justice and fairness in the legal process" and that [p
65] "Clemency procedures are an integral part of the existing 'laws and
regulations' of the United States through which errors are addressed".
137. Specifically in the context of the present case, the United States
contends that the following two points are particularly noteworthy:
"First, these clemency procedures allow for broad participation by advocates
of clemency, including an inmate's attorney and the sending state's consular
officer . . . Second, these clemency officials are not bound by principles
of procedural default, finality, prejudice standards, or any other
limitations on judicial review. They may consider any facts and
circumstances that they deem appropriate and relevant, including
specifically Vienna Convention claims".
138. The Court would emphasize that the "review and reconsideration"
prescribed by it in the LaGrand case should be effective. Thus it should
"take account of the violation of the rights set forth in [the] Convention"
(I.C.J. Reports 2001, p. 516, para. 128 (7)) and guarantee that the
violation and the possible prejudice caused by that violation will be fully
examined and taken into account in the review and reconsideration process.
Lastly, review and reconsideration should be both of the sentence and of the
conviction.
139. Accordingly, in a situation of the violation of rights under Article
36, paragraph 1, of the Vienna Convention, the defendant raises his claim in
this respect not as a case of "harm to a particular right essential to a
fair trial" -- a concept relevant to the enjoyment of due process rights
under the United States Constitution -- but as a case involving the
infringement of his rights under Article 36, paragraph 1. The rights
guaranteed under the Vienna Convention are treaty rights which the United
States has undertaken to comply with in relation to the individual
concerned, irrespective of the due process rights under United States
constitutional law. In this regard, the Court would point out that what is
crucial in the review and reconsideration process is the existence of a
procedure which guarantees that full weight is given to the violation of the
rights set forth in the Vienna Convention, whatever may be the actual
outcome of such review and reconsideration.
140. As has been explained in paragraphs 128 to 134 above, the Court is of
the view that, in cases where the breach of the individual rights of Mexican
nationals under Article 36, paragraph 1 (b), of the Convention has resulted,
in the sequence of judicial proceedings that has followed, in the
individuals concerned being subjected to prolonged detention or convicted
and sentenced to severe penalties, the legal consequences of this breach
have to be examined and taken into account in the course of [p 66] review
and reconsideration. The Court considers that it is the judicial process
that is suited to this task.
141. The Court in the LaGrand case left to the United States the choice of
means as to how review and reconsideration should be achieved, especially in
the light of the procedural default rule. Nevertheless, the premise on which
the Court proceeded in that case was that the process of review and
reconsideration should occur within the overall judicial proceedings
relating to the individual defendant concerned.
142. As regards the clemency procedure, the Court notes that this performs
an important function in the administration of criminal justice in the
United States and is "the historic remedy for preventing miscarriages of
justice where judicial process has been exhausted" ( Herrera v. Collins, 506
U.S. 390 (1993) at pp. 411-412). The Court accepts that executive clemency,
while not judicial, is an integral part of the overall scheme for ensuring
justice and fairness in the legal process within the United States criminal
justice system. It must, however, point out that what is at issue in the
present case is not whether executive clemency as an institution is or is
not an integral part of the "existing laws and regulations of the United
States", but whether the clemency process as practised within the criminal
justice systems of different states in the United States can, in and of
itself, qualify as an appropriate means for undertaking the effective
"review and reconsideration of the conviction and sentence by taking account
of the violation of the rights set forth in the Convention", as the Court
prescribed in the LaGrand Judgment (I.C.J. Reports 2001, p. 514, para. 125).
143. It may be true, as the United States argues, that in a number of cases
"clemency in fact results in pardons of convictions as well as commutations
of sentences". In that sense and to that extent, it might be argued that the
facts demonstrated by the United States testify to a degree of effectiveness
of the clemency procedures as a means of relieving defendants on death row
from execution. The Court notes, however, that the clemency process, as
currently practised within the United States criminal justice system, does
not appear to meet the requirements described in paragraph 138 above and
that it is therefore not sufficient in itself to serve as an appropriate
means of "review and reconsideration" as envisaged by the Court in the
LaGrand case. The Court considers nevertheless that appropriate clemency
procedures can supplement judicial review and reconsideration, in particular
where the judicial system has failed to take due account of the violation of
the rights set forth in the Vienna Convention, as has occurred in the case
of the three Mexican nationals referred to in paragraph 114 above.
*
144. Finally, the Court will consider the eighth submission of Mexico, in
which it asks the Court to adjudge and declare:
"That the [United States] shall cease its violations of Article 36 of the
Vienna Convention with regard to Mexico and its 52 nationals and shall
provide appropriate guarantees and assurances that it shall take measures
sufficient to achieve increased compliance with Article 36 (1) and to ensure
compliance with Article 36 (2)."
145. In this respect, Mexico recognizes the efforts by the United States to
raise awareness of consular assistance rights, through the distribution of
pamphlets and pocket cards and by the conduct of training programmes, and
that the measures adopted by the United States to that end were noted by the
Court in its decision in the LaGrand case (I.C.J. Reports 2001, pp. 511-513,
paras. 121, 123-124). Mexico, however, notes with regret that
"the United States program, whatever its components, has proven ineffective
to prevent the regular and continuing violation by its competent authorities
of consular notification and assistance rights guaranteed by Article 36".
146. In particular, Mexico claims in relation to the violation of the
obligations under Article 36, paragraph 1, of the Vienna Convention:
"First, competent authorities of the United States regularly fail to provide
the timely notification required by Article 36(1)(b) and thereby to [sic]
frustrate the communication and access contemplated by Article 36(1)(a) and
the assistance contemplated by Article 36(1)(c). These violations continue
notwithstanding the Court's judgment in LaGrand and the program described
there.
Mexico has demonstrated, moreover, that the pattern of regular noncompliance
continues. During the first half of 2003, Mexico has identified at least one
hundred cases in which Mexican nationals have been arrested by competent
authorities of the United States for serious felonies but not timely
notified of their consular notification rights."
Furthermore, in relation to the violation of the obligations under Article
36, paragraph 2, of the Vienna Convention, Mexico claims:
"Second, courts in the United States continue to apply doctrines of
procedural default and non-retroactivity that prevent those courts from
reaching the merits of Vienna Convention claims, and those courts that have
addressed the merits of those claims (because no procedural bar applies)
have repeatedly held that no remedy is avail-[p 68] able for a breach of the
obligations of Article 36 . . . Likewise, the United States' reliance on
clemency proceedings to meet LaGrand's requirement of review and
reconsideration represents a deliberate decision to allow these legal rules
and doctrines to continue to have their inevitable effect. Hence, the United
States continues to breach Article 36(2) by failing to give full effect to
the purposes for which the rights accorded under Article 36 are intended."
147. The United States contradicts this contention of Mexico by claiming
that "its efforts to improve the conveyance of information about consular
notification are continuing unabated and are achieving tangible results". It
contends that Mexico "fails to establish a 'regular and continuing' pattern
of breaches of Article 36 in the wake of LaGrand".
148. Mexico emphasizes the necessity of requiring the cessation of the
wrongful acts because, it alleges, the violation of Article 36 with regard
to Mexico and its 52 nationals still continues. The Court considers,
however, that Mexico has not established a continuing violation of Article
36 of the Vienna Convention with respect to the 52 individuals referred to
in its final submissions; it cannot therefore uphold Mexico's claim seeking
cessation. The Court would moreover point out that, inasmuch as these 52
individual cases are at various stages of criminal proceedings before the
United States courts, they are in the state of pendente lite; and the Court
has already indicated in respect of them what it regards as the appropriate
remedy, namely review and reconsideration by reference to the breach of the
Vienna Convention.
149. The Mexican request for guarantees of non-repetition is based on its
contention that beyond these 52 cases there is a "regular and continuing"
pattern of breaches by the United States of Article 36. In this respect, the
Court observes that there is no evidence properly before it that would
establish a general pattern. While it is a matter of concern that, even in
the wake of the LaGrand Judgment, there remain a substantial number of cases
of failure to carry out the obligation to furnish consular information to
Mexican nationals, the Court notes that the United States has been making
considerable efforts to ensure that its law enforcement authorities provide
consular information to every arrested person they know or have reason to
believe is a foreign national. Especially at the stage of pre-trial consular
information, it is noteworthy that the United States has been making good
faith efforts to implement the obligations incumbent upon it under Article
36, paragraph 1, of the Vienna Convention, through such measures as a new
outreach programme launched in 1998, including the dissemination to federal,
state and local authorities of the State Department booklet mentioned above
in para-[p 69]graph 63. The Court wishes to recall in this context what it
has said in paragraph 64 about efforts in some jurisdictions to provide the
information under Article 36, paragraph 1 (b), in parallel with the reading
of the "Miranda rights".
150. The Court would further note in this regard that in the LaGrand case
Germany sought, inter alia, "a straightforward assurance that the United
States will not repeat its unlawful acts" (I.C.J. Reports 2001, p. 511,
para. 120). With regard to this general demand for an assurance of
non-repetition, the Court stated:
"If a State, in proceedings before this Court, repeatedly refers to
substantial activities which it is carrying out in order to achieve
compliance with certain obligations under a treaty, then this expresses a
commitment to follow through with the efforts in this regard. The programme
in question certainly cannot provide an assurance that there will never
again be a failure by the United States to observe the obligations of
notification under Article 36 of the Vienna Convention. But no State could
give such a guarantee and Germany does not seek it. The Court considers that
the commitment expressed by the United States to ensure implementation of
the specific measures adopted in performance of its obligations under
Article 36, paragraph 1 (b), must be regarded as meeting Germany's request
for a general assurance of non-repetition." (I.C.J. Reports 2001, pp.
512-513, para. 124.)
The Court believes that as far as the request of Mexico for guarantees and
assurances of non-repetition is concerned, what the Court stated in this
passage of the LaGrand Judgment remains applicable, and therefore meets that
request.
***
151. The Court would now re-emphasize a point of importance. In the present
case, it has had occasion to examine the obligations of the United States
under Article 36 of the Vienna Convention in relation to Mexican nationals
sentenced to death in the United States. Its findings as to the duty of
review and reconsideration of convictions and sentences have been directed
to the circumstance of severe penalties being imposed on foreign nationals
who happen to be of Mexican nationality. To avoid any ambiguity, it should
be made clear that, while what the Court has stated concerns the Mexican
nationals whose cases have been brought before it by Mexico, the Court has
been addressing the issues of principle raised in [p 70] the course of the
present proceedings from the viewpoint of the general application of the
Vienna Convention, and there can be no question of making an a contrario
argument in respect of any of the Court's findings in the present Judgment.
In other words, the fact that in this case the Court's ruling has concerned
only Mexican nationals cannot be taken to imply that the conclusions reached
by it in the present Judgment do not apply to other foreign nationals
finding themselves in similar situations in the United States.
**
152. By its Order of 5 February 2003 the Court, acting on a request by
Mexico, indicated by way of provisional measure that
"The United States of America shall take all measures necessary to ensure
that Mr. Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr.
Osvaldo Torres Aguilera are not executed pending final judgment in these
proceedings" (I.C.J. Reports 2003, pp. 91-92, para. 59 (I))(see paragraph 21
above).
The Order of 5 February 2003, according to its terms and to Article 41 of
the Statute, was effective pending final judgment, and the obligations of
the United States in that respect are, with effect from the date of the
present Judgment, replaced by those declared in this Judgment. The Court has
rejected Mexico's submission that, by way of restitutio in integrum, the
United States is obliged to annul the convictions and sentences of all of
the Mexican nationals the subject of its claims (see above, paragraphs
115-125). The Court has found that, in relation to these three persons
(among others), the United States has committed breaches of its obligations
under Article 36, paragraph 1 (b), of the Vienna Convention and Article 36,
paragraphs 1 (a) and (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 the said Convention. The review and
reconsideration of conviction and sentence required by Article 36, paragraph
2, which is the appropriate remedy for breaches of Article 36, paragraph 1,
has not been carried out. The Court considers that in these three cases it
is for the United States to find an appropriate remedy having the nature of
review and reconsideration according to the criteria indicated in paragraphs
138 et seq. of the present Judgment.
***
153. For these reasons,
THE COURT,
(1) By thirteen votes to two,[p 71]
Rejects the objection by the United Mexican States to the admissibility of
the objections presented by the United States of America to the jurisdiction
of the Court and the admissibility of the Mexican claims;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka;
AGAINST: Judge Parra-Aranguren; Judge ad hoc SepUlveda;
(2) Unanimously,
Rejects the four objections by the United States of America to the
jurisdiction of the Court;
(3) Unanimously,
Rejects the five objections by the United States of America to the
admissibility of the claims of the United Mexican States;
(4) By fourteen votes to one,
Finds that, by not informing, without delay upon their detention, the 51
Mexican nationals referred to in paragraph 106 (1) above of their rights
under Article 36, paragraph 1 (b), of the Vienna Convention on Consular
Relations of 24 April 1963, the United States of America breached the
obligations incumbent upon it under that subparagraph;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka; Judge ad hoc SepUlveda;
AGAINST: Judge Parra-Aranguren;
(5) By fourteen votes to one,
Finds that, by not notifying the appropriate Mexican consular post without
delay of the detention of the 49 Mexican nationals referred to in paragraph
106 (2) above and thereby depriving the United Mexican States of the right,
in a timely fashion, to render the assistance provided for by the Vienna
Convention to the individuals concerned, the United States of America
breached the obligations incumbent upon it under Article 36, paragraph 1
(b);
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka; Judge ad hoc SepUlveda;
AGAINST: Judge Parra-Aranguren;
(6) By fourteen votes to one,
Finds that, in relation to the 49 Mexican nationals referred to in paragraph
106 (3) above, the United States of America deprived the United Mexican
States of the right, in a timely fashion, to communicate with and have
access to those nationals and to visit them in detention, and thereby[p 72]
breached the obligations incumbent upon it under Article 36, paragraph 1 (a)
and (c), of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka; Judge ad hoc SepUlveda;
AGAINST: Judge Parra-Aranguren;
(7) By fourteen votes to one,
Finds that, in relation to the 34 Mexican nationals referred to in paragraph
106 (4) above, the United States of America deprived the United Mexican
States of the right, in a timely fashion, to arrange for legal
representation of those nationals, and thereby breached the obligations
incumbent upon it under Article 36, paragraph 1 (c), of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka; Judge ad hoc SepUlveda;
AGAINST: Judge Parra-Aranguren;
(8) By fourteen votes to one,
Finds that, by not permitting the review and reconsideration, in the light
of the rights set forth in the Convention, of the conviction and sentences
of Mr. Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo
Torres Aguilera, after the violations referred to in subparagraph (4) above
had been established in respect of those individuals, the United States of
America breached the obligations incumbent upon it under Article 36,
paragraph 2, of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka; Judge ad hoc SepUlveda;
AGAINST: Judge Parra-Aranguren;
(9) By fourteen votes to one,
Finds that the appropriate reparation in this case consists in the
obligation of the United States of America to provide, by means of its own
choosing, review and reconsideration of the convictions and sentences of the
Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above,
by taking account both of the violation of the rights set forth in Article
36 of the Convention and of paragraphs 138 to 141 of this Judgment;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby,
Owada, Tomka; Judge ad hoc SepUlveda;
AGAINST: Judge Parra-Aranguren; [p 73]
(10) Unanimously,
Takes note of the commitment undertaken by the United States of America to
ensure implementation of the specific measures adopted in performance of its
obligations under Article 36, paragraph 1 (b), of the Vienna Convention; and
finds that this commitment must be regarded as meeting the request by the
United Mexican States for guarantees and assurances of non-repetition;
(11) Unanimously,
Finds that, should Mexican nationals nonetheless be sentenced to severe
penalties, without their rights under Article 36, paragraph 1 (b), of the
Convention having been respected, the United States of America shall
provide, by means of its own choosing, review and reconsideration of the
conviction and sentence, so as to allow full weight to be given to the
violation of the rights set forth in the Convention, taking account of
paragraphs 138 to 141 of this Judgment.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirty-first day of March, two thousand and
four, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the United Mexican
States and the Government of the United States of America, respectively.
(Signed) SHI Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.
President SHI and Vice-President RANJEVA append declarations to the Judgment
of the Court; Judges VERESHCHETIN, PARRA-ARANGUREN and TOMKA and Judge ad
hoc SEPULVEDA append separate opinions to the Judgment of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
[p 74]
DECLARATION OF PRESIDENT SHI
In voting in favour of operative paragraph 153 of the Judgment, I should
like to make it clear that I still maintain my views as expressed in my
separate opinion annexed to the LaGrand Judgment (J.C.J. Reports 200], pp.
518-524) with regard both to the Court's interpretation that Article 36,
paragraphs 1 and 2, of the Vienna Convention on Consular Relations creates
individual rights, and to the Court's ruling on "review and reconsideration
of the conviction and sentence" as a form of remedy for breach by the
receiving State of its obligations under Article 36 of the Convention.
(Signed) SHI Jiuyong.
[p 75]
DECLARATION OF VICE-PRESIDENT RANJEVA
[Translation]
1. Whilst agreeing with the Court's findings and reasoning, I wish to make
my own proposed interpretation clear in regard to the issue of evidence and
the relationship between diplomatic protection and individual rights.
2. The Judgment declines to adopt the distinction proposed by the United
States, between the burden of proof and the burden of evidence (para. 56),
retaining solely the classic concept of burden of proof. Whilst that
decision merits approval, the Judgment fails to give an appropriate
explanation on this point. The distinction proposed by the Respondent is
somewhat subtle and perhaps arises from specific concepts of United States
law; the fact remains that those are institutions of domestic law, whereas
the Court is bound to apply international law and its categories. It is
sufficient to recall a basic truth, namely that the categories of domestic
law have their inherent limitations; they are too directly dependent on the
legal and institutional history of a given system to have universal value
and to be directly valid in international law.
3. The reasoning of the Judgment in paragraph 57 is well fashioned,
consisting simply in a factual review of the Parties' propositions and
conduct, and producing a conclusion which is thus self-evident. The
demonstration would have been more convincing had the factual analysis been
linked with the issue of the production of evidence in cases before the
Court. The Court responds to the Respondent's complaints of lack of
co-operation on the part of the Applicant by indicating the conduct it
expected of the latter.
4. On reflection, it is apparent that the United States objection raises a
question of principle. Can a complaint be made that the other party has
failed to produce evidence if the Court has not previously requested it to
do so? Traditionally, in the context of procedural law, the basic principle
was enshrined in the maxim nemo contra se. edere tenetur (no one is [p 76]
bound to give evidence against himself). However, in terms of the Rules of
Court, this principle does not appear to have been construed strictly.
Article 62, paragraph 1, of the Rules confers on the Court full
discretionary powers in respect of evidence gathering. If the Court decides
to grant a respondent's request, it may order the other party to produce
evidence. The following precedent provides support for this interpretation:
"the PCIJ responded favourably to an Agent who requested the Court to ask the
other party to produce an administrative document in support of the
interpretation of a certain conception of administrative law which be had
expounded before the Court. The Court, after deliberation, decided to comply
with this request." (Geneviève Guyomar, Commentaire du Règlement de la Cour
internationale de Justice, 1983, p. 411, referring to P.C.J.J., Series E,
No. 8, p. 268.)
5. It should be noted, however, that the Court cannot impose any sanction
for failure to produce evidence, other than the inferences it may draw from
such abstention or refusal. In the Corfu Channel case, the evidence
requested by the Court was refused by the party in question:
"It is not therefore possible to know the real content of these naval
orders. The Court cannot, however, draw from this refusal to produce the
orders any conclusions differing from those to which the actual events gave
rise." (Merits, Judgment, J.C.J. Reports ¡949, p. 32.)
6. In the absence of any obligation capable of impugning the freedom of
action of the parties in relation to the production of evidence, the Court's
only means of establishing the truth is its own power of determination.
That limitation explains the purely factual nature of the analysis in
paragraphs 56 and 57.
7. With respect to paragraph 40, I would like to give my interpretation.
The problem arises out of Mexico's wholesale espousal of Germany's argument
in the LaGrand ( Germany v. United States of America) case, as set out in
paragraph 75 of the 2001 Judgment ; that strategy by Mexico is explicable:
it was seeking to obtain the benefit of the LaGrand jurisprudence pertaining
to the protection of the "individual rights" of its nationals. On closer
examination, however, the two claims German and Mexican appear quite
different in terms of their subject-matter. Germany joined together its
claims in its own right and those concerning the protection of the
individual rights of the LaGrand brothers. In the present case, the Mexican
claim is a complex one : the Applicant first acts in its own name ;
secondly, it acts in the exercise of its right to ensure the protection of
its nationals; and lastly a point that should be emphasized
implementation of the individual rights of the Mexican nationals is situated
in the context of the United States judicial system. Both Ger-[p 77] many
and Mexico sailed their entire forensic strategy under the flag of
diplomatic protection.
8. In terms of legal characterization, the reference to diplomatic
protection is misconceived. Traditionally, diplomatic protection is
essentially an institution of general or customary international law:
"It is an elementary principle of international law that a State is entitled
to protect its subjects, when injured by acts contrary to international law
committed by another State, from whom they have been unable to obtain
satisfaction through the ordinary channels. By taking up the case of one of
its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own
rights its right to ensure, in the person of its subjects, respect for the
rules of international law." (Mavrommatis Palestine Concessions, Judgment
No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12.)
9. In other words, the protection consists in the right of a State to bring
an international claim against another State when one of its nationals has
been injured by an internationally wrongful act. In light of the terms used
by the Permanent Court of International Justice, there is one clear
conclusion: diplomatic protection is a right belonging to the State. Hence,
in matters concerning the protection of individual rights of nationals, the
question is whether there is a place for diplo-matic protection.
10. From a purely practical standpoint, reliance on the notion of
diplomatic protection and the rule of the exhaustion of local remedies may
have perverse effects: the procedural default rule can make compliance with
the procedural obligation to exhaust local remedies a futile exercise; no
one has yet found a way of bringing an executed prisoner back to life.
11. On a theoretical level, reading the provisions of the Vienna Convention
in conjunction with the reasoning in the LaGrand Judgment prompts the
following observations: first, the 1963 Convention enumerates the rights
that it seeks to protect for the purpose of facilitating the exercise of the
consular function, for the benefit both of the sending State and of its
nationals; secondly, the LaGrand Judgment describes the components of the
consular protection system as being interrelated (/. C. J. Reports 2001, p.
492, para, 74); and lastly, according to paragraph 77 of that Judgment:
"the Court concludes that Article 36, paragraph 1, creates individual
rights, which, by virtue of Article I of the Optional Protocol, may be
invoked in this Court by the national State of the detained person" (J.C.J.
Reports 2001, p. 494, para. 77).
12. If I have understood them correctly, those propositions contemplate the
direct grant of individual rights but do not impose any prior [p 78]
condition for States seeking to invoke violations of the rights of their
nationals. Thus, looking beyond the scope of diplomatic protection and the
obligation to exhaust local remedies, the question to be determined is the
significance of the interrelationship between the components of the consular
protection system.
13. The notion of interrelationship was used by the Court in 2001 to
characterize the interdependence of the rights enumerated in Article 36,
paragraph 1. The raison d'être or focus of that relationship is to seek to
facilitate consular protection. However, the manner in which the various
rights are defined consists in stating their content and how they are to be
apportioned as between the sending State and the detainee; in other words,
the 1963 Convention sought to identify the holders of the rights that it
created, with individual rights being those belonging to the detained
nationals. In these circumstances, the interrelationship contemplated by the
2001 Judgment concerns neither the nature nor the scope of the rights in
question ; it pertains to the effective implementation of the protection
system. The effective exercise by a State of its right to provide for the
protection of its nationals, who derive their rights from Article 36,
paragraph 1 (b),is only possible if the detained national does not refuse
such an initiative. The discretionary power of the sending State is thus
confined to a right of initiative to activate the protection mechanism. And
that right of initiative effectively arises "as soon as it is realized that
the person is a foreign national, or once there are grounds to think that
the person is probably a foreign national" (Judgment, para. 88).
(Signed) Raymond RANJEVA.
[p 79]
SEPARATE OPINION OF JUDGE VERESHCHETIN
I voted in favour of the Judgment. However, I should like to put on record
my disagreement with that part of the Court's reasoning where it deals with
the issues concerning the law of diplomatic protection and the related rule
of the exhaustion of local remedies (paragraph 40 of the Judgment).
1. In the present case, Mexico has requested the Court to adjudge and
declare that the United States "violated its international legal obligation
to Mexico in its own right and in the exercise of its right to diplomatic
protection of its nationals" (emphasis added). The United States contends
that Mexico's claims are inadmissible because in all the individual cases
referred to by Mexico local remedies remain available and therefore the
right of diplomatic protection on behalf of any Mexican national cannot be
exercised before this Court. In deciding this dispute, the Court, in order
to show that the rule of exhaustion of local remedies cannot preclude the
admissibility of the Mexican claims, has resorted to reasoning which, in my
view, amounts to a highly problematic new legal proposition in respect of
the law of diplomatic protection.
2. The Court, without denying the obvious fact; that Mexico brought its
claims under two heads, namely direct injury to the State and in the
exercise of its right of diplomatic protection of its nationals, and having
also noted that the individual rights of the Mexican nationals are rights
"which are to be asserted, at any rate in the first place, within the
domestic legal system of the United States", thereafter makes an unexpected
U-turn and states that, "in the special circumstances of interdependence of
the rights of the State and of individual rights" under the Vienna
Convention, Mexico may, prior to the exhaustion of local remedies,
"request the Court to rule on the violation of rights which it claims to
have suffered both directly and through the violations of the indi-[p
80]vidual rights, conferred on Mexican nationals under Article 36, paragraph
1 (b) [of the Vienna Convention]" (emphasis added).
The Court further specifically observes that in the present case the duty to
exhaust local remedies does not apply and that the Court does not have to
deal with the Mexican claim of violations "under a distinct heading of
diplomatic protection".
3. In support of its argument regarding the "special circumstances of
interdependence of the rights of the State and individual rights" under the
Vienna Convention, the Court relies (a) on the finding in the LaGrand case
that "Article 36, paragraph 1, creates individual rights [for the national
concerned], which . . . may be invoked in this Court by the national State
of the detained person" (LaGrand (Germany v. United States of America),
Judgment, I.C.J. Reports 2001, p. 494, para. 77), and (b) on its statement
that "violations of the rights of the individual under Article 36 may entail
violations of the rights of the sending State, and that violations of the
rights of the latter may entail a violation of the rights of the
individual".
4. The Court, however, fails to recall that in the LaGrand case, in which
Germany also brought its claims under the two heads, the Court does not say
that in invoking individual rights of its nationals the State may avoid the
rule of exhaustion of local remedies or, for that matter, that in case of
such invocation the claims fall outside the scope of the law of diplomatic
protection. As to the Court's statement that violations of the rights of the
individual may entail violations of the rights of the State and vice versa,
this circular reasoning can be assessed in the light of the jurisprudence of
the Court on diplomatic protection and of the work of the International Law
Commission (ILC), which recently formulated Draft Articles on Diplomatic
Protection. Unfortunately, neither of these is even mentioned in the
Judgment.
5. To use the terminology of the ILC, Mexico has brought a so-called "mixed"
claim alleging both direct injury to the State and indirect injury to the
same State through the wrong done to its nationals. In its Commentary to
Article 9 [11] of the said Draft the ILC, basing itself on several judgments
of this Court dealing with diplomatic protection cases and related issues of
the exhaustion of local remedies [Interhandel, Preliminary Objections,
Judgment, I.C.J. Reports 1959; United States Diplomatic and Consular Staff
in Tehran, Judgment, I.C.J. Reports 1980; Elettronka Sicula S.p.A. (ELSI),
Judgment, I.C.J. Reports 1989), stated;
"In the case of a mixed claim it is incumbent upon the tribunal to examine
the different elements of the claim and to decide whether the direct or the
indirect element is preponderant . . . If a claim is preponderantly based on
injury to a national this is evidence of the fact that the claim would not
have been brought but for the injury to [p 81] the national . . . The
principal factors to be considered in making this assessment are the subject
of the dispute, the nature of the claim and the remedy claimed." (United
Nations, Report of the International Law Commission, Fifty-fifth Session (5
May-6 June and 7 July-8 August 2003), Official Records of the General
Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), pp. 90-91.)
Article 9 [11], to which the above-cited Commentary refers, reads as
follows:
"Local remedies shall be exhausted where an international claim, or request
for a declaratory judgment related to the claim, is brought preponderantly
on the basis of an injury to a national or other person referred to in
article 7 [8]." [Article 7 [§] deals with stateless persons and refugees.]
(Ibid, p. 89.)
It should be noted that the cited Article of the ILC Draft does not make any
exception for treaty-based claims.
6, As was just mentioned, the ILC was guided by the jurisprudence of the
International Court of Justice. The ELSI Chamber rejected a United States
argument that the exhaustion of local remedies did not apply as regards
treaty-based claims where the treaty in question was silent as to whether
such rule applied. While the Chamber recognized that the parties to a treaty
can explicitly agree that the local remedies rule shall or shall not apply
to claims based on that treaty, such "an important principle of 'customary
international law" would not be held to have been "tacitly dispensed with,
in the absence of any words making clear an intention to do so" (Eleitronica
Sicula S.p.A. (ELSIJ, Judgment, I. C.J. Reports 1989,. p. 42, para. 50).
Thus, the Chamber stated that, as regards treaty-based claims, local
remedies must be exhausted prior to the institution of an international
claim unless there is explicit language to the contrary. In the same case,
the Chamber refused to separate the claim for direct injury alleged by the
United States from the diplomatic protection claim based on injury to the
United States nationals. The Chamber thus determined that where the same
factual basis exists for claims based both on direct injury to a State and
indirect injury through a national of that State, local remedies must be
exhausted when the claims are preponderantly based upon the injury to the
national of the State.
7. In the case before the Court now, we are faced with a similar situation:
the factual basis for both elements of Mexico's claim is the same; the
remedies sought focus on injuries to the nationals concerned. To use the
"preponderance" standard, referred to above, the claim would not have been
brought before the Court but for Mexico's desire to protect specific
nationals. This clearly shows that the mixed Mexican claim is [p 82]
preponderantly a diplomatic protection claim, in which Mexico espouses
before the Court the claims of its nationals. Direct injury to Mexico could
arise only after the violations of the rights of its nationals provided for
in Article 36, paragraph 1 (b), of the Vienna Convention.
8. In effect, such a finding is corroborated by the Judgment's overall
reasoning. Thus, the Court invokes the violations of the rights of Mexican
nationals not merely as evidence of the violations of the rights of Mexico
as a State. It scrupulously examines and identifies the concrete violations
of the rights of Mexican nationals in each and every one of 50-pi us
individual cases brought by Mexico under the head of diplomatic protection.
The Court identifies by name the specific individuals and the specific
injuries caused to them (see, for example, paragraph 106 of the Judgment).
9. And yet, at the very beginning of this exercise, the Court states that it
is not dealing with the Mexican claims as a diplomatic protection case and
that the rule of exhaustion of local remedies does not apply to. the Mexican
request because of the special circumstances of interdependence of the
rights of the State and of individual rights under the Vienna Convention.
10. I share the view of the majority that Mexico's claims are admissible
and that the duty to exhaust local remedies does not apply to this case.
However, my perception of the nature of the "special circumstances" in
issue is quite different from that expounded in paragraph 40 of the
Judgment. In my view, the special circumstances that, for the purposes of
this Judgment, exempt this particular case from the local remedies
requirement do not lie in the special character of Article 36 of the Vienna
Convention, but rather in the particular factual circumstances of the
specific case before the Court, as will be explained further below. Contrary
to what the Court says in paragraph 40 of the Judgment, in invoking the
rights of individuals under the Vienna Convention before this Court, the
State, as a general rule, is not exempt from the duty to exhaust local
remedies, subject to certain exceptions as those specified in Article 10
[14] of the ILC Draft. As the ELSI Chamber observed with regard to this
rule, such "an important principle of customary international law" would
not be held to have been "tacitly dispensed with, in the absence of any
words making clear an intention to do so" (Elettronica Sicula S.p.A, (ELSI),
Judgment, I C.J. Reports 1989, p. 42, para. 50).
11. The individual rights of Mexican nationals under paragraph 1 (b) of
Article 36 of the Vienna Convention are, indeed, rights "which are to be
asserted, at any rate in the first place, within the domestic legal system
of the United States" (para. 40 of the Judgment). In principle, only when
that process is completed and the remedies for the violations are finally
unavailable, could Mexico take up the case in the form of an espousal of
individual claims before this Court. However, the LaGrand case showed [p 83]
that the wide range of possible local remedies in criminal justice
procedures in the United States tend to be exhausted only a short time
before the execution of individuals under sentence of death. In consequence,
there is a risk that applications based on diplomatic protection with regard
to such individuals will be filed with this Court in circumstances where the
latter would be unable usefully to address them.
12. In the special circumstances of the present case, at the time when the
Application was filed, all the Mexican nationals concerned were already on
death row and therefore human lives were at stake. In these circumstances,
to demand that all the local remedies for the alleged violation of Article
36, paragraph 1, should have been completely exhausted before Mexico could
exercise its right of diplomatic protection of these nationals could lead to
the absurd result of this Court having to rule at a point in time when its
ruling could have no practical effect. That is why, exactly because most of
the cases in question had not yet reached the final stage in the United
States criminal proceedings, and in the hope that this Court would clarify
the matter from the standpoint of international law, Mexico could bring its
claims both in its own right and in the exercise of its right of diplomatic
protection of its nationals.
13. To conclude, the Court should have applied the "preponderance" standard
to the "mixed" Mexican claims brought under the heads both of Mexico's own
rights and of its right of diplomatic protection of its nationals, thus
remaining consistent with its former jurisprudence on the law of diplomatic
protection. Having found that the claims were essentially those of
diplomatic protection, the Court should have held that the rule of
exhaustion of local remedies was inapplicable not because Article 36 of the
Vienna Convention on Consular Relations impliedly differs in kind from other
treaty provisions creating rights of individuals, but rather because of the
very special circumstances of the case at hand, as explained above.
(Signed) Vladlen S. VERESHCHETIN.
[p 84]
SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
1. My vote in favour of subparagraphs (2), (3), (10) and (II) of paragraph
153 does not mean that I share each and every part of the reasoning
followed by the Court in reaching its conclusions. Time constraints to
present this separate opinion within the period fixed by the Court do not
permit me to make a complete explanation of my disagreement with the
remaining subparagraphs of paragraph 153. However I wish to advance some of
my main reasons for voting against them.
I
2. Operative paragraph 153 (I) of the Judgment:
"Rejects the objection by the United Mexican States to the admissibility of
the objections presented by the United States of America to the jurisdiction
of the Court and to the admissibility of the Mexican claims."
3. In my opinion, the contention of the United Mexican States (hereinafter
"Mexico") should have been upheld, because the Parties agreed to a single
round of pleadings and nothing was said about preliminary objections. The
United States of America (hereinafter "the United States") thus gave its
consent not to raise preliminary objections, and consequently its
objections were not to be examined as such. This reason explains my vote
against paragraph 153, subparagraph (1), where the Court rejects Mexico's
contention that it should disregard the preliminary objections raised by
the United States against Mexico's claims based on violations by the United
States of Article 36 of the 24 April 1963 Vienna Convention on Consular
Relations (hereinafter "the Vienna Convention").
4. However, it is to be kept in mind that in any case the Court has to be
satisfied of its jurisdiction and therefore the Court may examine it at any
time, before rendering judgment on the merits, either ex officio or at the
request of any of the parties (Appeal Relating to the Jurisdiction of [p 85]
the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52,
para. 13; Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996
(II), p. 622, para. 46), Furthermore, as Mexico acknowledges, the
inadmissibility objections presented by the United States as preliminary
objections "overlap the arguments on the merits to a large extent" (CR
2003/24, p. 23, para. 59, Gómez-Robledo),
II
5. The first of Mexico's final submissions requests the Court to adjudge and
declare, inter alia, that the United States has "violated its international
legal obligations to Mexico, in its own right and in the exercise of its
right of diplomatic protection of its nationals" by failing to comply with
Article 36, paragraph 1, of the Vienna Convention (Judgment, para. 13;
emphasis added). It also indicates that the Court need not "reexamine and
redetermine the facts and reweigh the evidence" in each of the 52 cases,
because there are only two factual issues to be resolved. The first relates
to the Mexican nationality of the individuals concerned and the second to
the violations of Article 36, paragraph 1 (h) (CR 2003/24, p, 27, para. 83,
Babcock),
6. Mexico expressly acknowledges that, since the United States "has chosen
to vehemently deny any wrongdoing", it is for Mexico to demonstrate in all
52 cases the alleged violations of Article 36, paragraph 1 (b), of the
Vienna Convention (CR2003/24, pp. 29-30, para. 94, Babcock); and it claims
it has met this burden by providing to the Court the birth certificates of
these individuals, and declarations from 42 of them stating their Mexican
nationality.
7. Mexico maintained in the oral proceedings that all of them automatically
acquired jure soli Mexican nationality under Article 30 of its Constitution.
However Mexico did not present any evidence to demonstrate the contents of
such Article 30.
8. It was for Mexico to discharge this burden of proof because, as Judge
John E. Read recalled, "municipal laws are merely facts which express the
will and constitute the activities of States" indicating that this rule had
been established by the Permanent Court of International Justice in a long
series of decisions and the following in particular:
"Polish Upper Silesia Series A, No. 7, page 19.
Serbian Loans Series A, Nos. 20/21, page 46.
Brazilian Loans Series A, Nos. 20/21, page 124.
Lighthouses Case (France/Greece) Series A/B, No. 62, page 22. [p 86]
Panevezys-Saldutiskis Railway Case Series A/B, No. 76, page 19."
(Nottebohm, Second Phase, Judgment, J.C.J. Reports 1955, p. 36, dissenting
opinion of Judge Read.)
9. Moreover it is a generally accepted principle. Oppenheim's International
Law explains:
"From the standpoint of international law, a national law is generally
regarded as a fact with reference to which rules of international law have
to be applied, rather than as a rule to be applied on the international
plane as a rule of law; and insofar as the International Court of Justice
is called upon to express an opinion as to the effect of a rule of national
law it will do so by treating the matter as a question of fact to be
established as such rather than as a question of law to be decided by the
court." {Oppenheim's International Law, 9th ed., edited by Sir Robert
Jennings, Q.C., and Sir Arthur Watts, K.C.M.G., Q.C., Vol. 1, "Peace",
Introduction and Part 1, 1996, p. 83, para. 21.)
10. This notwithstanding, paragraph 57 of the Judgment states:
"The Court finds that it is for Mexico to show that the 52 persons listed in
paragraph 16 above held Mexican nationality at the time of their arrest. The
Court notes that to this end Mexico has produced birth certificates and
declarations of nationality, whose contents have not been challenged by the
United States."
11. It is difficult for me to agree with this conclusion because Mexico has
not discharged its burden of proof. The declarations from 42 of all the
persons concerned are ex pane documents, which cannot, by themselves,
demonstrate Mexican nationality; and the birth certificates pre-sented by
Mexico for each of the 52 individuals undoubtedly demonstrate that they were
born in Mexico, but do not prove their Mexican nationality because Mexico
did not provide the text of Article 30 of the Mexican Constitution. In view
of this omission it cannot be established, from the evidence presented by
Mexico, that the 52 persons identified in its Memorial automatically
acquired Mexican nationality at the time of their birth by virtue of the jus
soli. For this reason, unless I were to rely on extralegal considerations,
as the Judgment itself does, I had no alterna-tive but to conclude that the
claims presented by Mexico against the United States cannot be upheld since
the Mexican nationality of the 52 persons concerned was not demonstrated and
this is, in the present case, a necessary condition for the application of
Article 36 of the Vienna Con-vention and for Mexico's exercise of its right
to diplomatic protection of its nationals. Therefore, in my opinion,
subparagraphs (4), (5), (6), (7), (8) and (9) of paragraph 153 were to be
rejected. [p 87]
III
12. Among the persons identified in Mexico's Memorial, the United States
provided proof that Enrique Zambrano was a United States national. Then
Mexico amended its submissions on 28 November 2003 to withdraw the claim
presented in its own name and in exercise of its right of diplomatic
protection, explaining that it did not contest, for the purpose of this
litigation, that dual nationals have no right to be advised, under Article
36, paragraph I (b), of their rights to consular notification and access (CR
2003/24, p. 28, para. 87, Babcock). The withdrawal was not objected to by
the United States, as indicated in paragraph 7 of the Judgment, and for this
reason the case of Mr. Enrique Zambrano was not examined.
13. Even though the question was not disputed between the Parties, it is to
be observed that the reasons given by Mexico for withdrawal in the case of
Mr. Enrique Zambrano find no support in the conclusions reached by the
International Law Commission in its recently prepared Draft Articles on
Diplomatic Protection. Article 6 thereof prescribes that
"A State of nationality may not exercise diplomatic protection in respect of
a person against a State of which that person is also a national unless the
nationality of the former State is predominant, both at the time of the
injury and at the date of the official presentation of the claim."
14. The International Law Commission explains that the solution adopted in
Article 6 follows the position adopted in arbitral decisions, in particular
by the Italian-United States Conciliation Commission, the Iran-United States
Claims Tribunal and the United Nations Compensation Commission established
by the Security Council to provide for compensation for damages caused by
Iraq's occupation of Kuwait. Moreover, the International Law Commission
indicates that it is consistent with developments in international human
rights law, which accords legal protection to individuals even against a
State of which they are nationals. It also specifies that the negative
language used in the provision "is intended to show that the circumstances
envisaged by article 6 are to be regarded as exceptional", making it clear
"that the burden of proof is on the claimant State to prove that its
nationality is predominant" (United Nations, Report of the International Law
Commission, Fifty-fourth Session (29 April-? June and 22 July-16 August
2002), Official Records of the General Assembly, Fifty-seventh Session,
Supplement No. 10 (A/57/ 10), pp. 169-187).
15. Therefore, Draft Article 6 would have entitled Mexico to exercise [p 88]
diplomatic protection on behalf of Enrique Zambrano, upon presenting
evidence that he was a Mexican national and that his Mexican nationality
predominated his United States nationality.
IV
16. Paragraph 40 of the Judgment examines the application of the rule of
exhaustion of local remedies when dealing with the second preliminary
objection to admissibility presented by the United States.
17. It indicates:
"The Court would first observe that the individual rights of Mexican
nationals under subparagraph 1 (b) of. Article 36 of the Vienna Convention
are rights which are to be asserted, at any rate in the first place, within
the domestic legal system of the United States. Only when that process is
completed and local remedies are exhausted would Mexico be entitled to
espouse the individual claims of its nationals through the procedure of
diplomatic protection."
18. Paragraph 40 adds:
"In the present case Mexico does not, however, claim to be acting solely on
that basis. It also asserts its own claims, basing them on the injury which
it contends that it has itself suffered, directly and through its nationals,
as a result of the violation by the United States of the obligations
incumbent upon it under Article 36, paragraph I (a), (b) and (c)."
19. Then paragraph 40 recalls the LaGrand Judgment, where it was recognized
that Article 36, paragraph 1 (b), of the Vienna Convention creates
individual rights of the foreign national concerned which may be invoked in
this Court by the national State of the detained person (/. C.J. Reports
2001, p. 494, para. 77). Paragraph 40 further observes
"that violations of the rights of the individual under Article 36 may entail
a violation of the rights of the sending State, and that violations of the
rights of the latter may entail a violation of the rights of the individual.
In these special circumstances of interdependence of the rights of the State
and of individual rights, Mexico may, in submitting a claim in its own
name, request the Court to rule on the violation of rights which it claims
to have suffered both directly and through the violation of individual
rights conferred on Mexican nationals under Article 36, paragraph 1 (b)."[p
89]
20. Paragraph 40 of the Judgment concludes:
"The duty to exhaust local remedies does not apply to such a request.
Further, for reasons just explained, the Court does not find it necessary to
deal with Mexico's claims of violation under a distinct heading of
diplomatic protection. Without needing to pronounce at this juncture on the
issues raised by the procedural default rule, as explained by Mexico in
paragraph 39 above, the Court accordingly finds that the second objection by
the United States to admissibility cannot be upheld."
21. In my opinion, this conclusion is misleading. Paragraph 40 should have
stated that the local remedies requirement does not apply when the injury is
claimed to have been done directly to the rights of Mexico and not that it
is not applicable to the claim made by Mexico in its own name. Now, the
claims presented by Mexico in the exercise of diplomatic protection of its
nationals are claims of Mexico in its own right, as was acknowledged in the
well-known dictum of the 30 August 1924 Judgment of the Permanent Court of
International Justice in the Mavrommatis Palestine Concessions case, where
it was specified that
"By taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights its right to ensure, in the person of its
subjects, respect for the rules of international law." {Judgment No. 2,
1924, P.C.I. J., Series A, No. 2, p. 12.)
22. This principle is generally accepted and has recently been reproduced
in Article 1, paragraph 1, of the Draft Articles on Diplomatic Protection
prepared by the International Law Commission, indicating that;
"Diplomatic protection consists of resort to diplomatic action or other
means of peaceful settlement by a State adopting in its own right the cause
of its national in respect of an injury to that national arising from an
internationally wrongful act of another State."
23. Therefore, in the present case, the relevant element in deciding whether
local remedies had to be exhausted is whether Mexico was directly injured by
the actions of the United States. As the International Law Commission
explains
"The exhaustion of local remedies rule applies only to cases in which the
claimant State has been injured 'indirectly', that is, through its national.
It does not apply where the claimant State is directly injured by the
wrongful act of another State, as here the [p 90]
has a distinct reason of its own for bringing an international claim."
24, Consequently Article 9 of its Draft Articles on Diplomatic Protection
provides that
"[l]ocal remedies shall be exhausted where an international claim, or
request for a declaratory judgment related to the claim, is brought
preponderantly on the basis of an injury to a national or other person
referred to in article 7 [8]".
25, However the International Law Commission also observes that
"In practice it is difficult to decide whether the claim is 'direct' or
'indirect' where it is 'mixed', in the sense that it contains elements of
both injury to the State and injury to the nationals of the State . . . In
the case of a mixed claim it is incumbent upon the tribunal to examine the
different elements of the claim and to decide whether the direct or the
indirect element is preponderant. , . Closely related to the preponderance
test is the sine qua non or 'but for' test, which asks whether the claim
comprising elements of both direct and indirect injury would have been
brought were it not for the claim on behalf of the injured national. If this
question is answered negatively, the claim is an indirect one and local
remedies must be exhausted. There is, however, little to distinguish the
preponderance test from the 'but for' test. If a claim is preponderantly
based on injury to a national this is evidence of the fact that the claim
would not have been brought but for the injury to the national. In these
circumstances the Commission preferred to adopt one test only that of
preponderance." (United Nations, Report of the International Law
Commission, Fifty-fifth Session (5 May-6 June and 7 July-8 August 2003),
Official Records of the General Assembly, Fifty-eighth Session, Supplement
No. 10 (A/58/10), pp. 89-90).
26. In the present case Mexico has advanced, in its own right, a claim
against the United States. However, the application of the exhaustion of
local remedies rule depends not on whether Mexico presents the claim in its
own right, but on whether Mexico was directly injured by the alleged actions
of the United States.
27. Mexico maintains that there was a breach by the United States of the
Vienna Convention, an unlawful act in the relations between the two States,
on each occasion the United States authorities did not inform the Mexican
nationals arrested of their rights under Article 36, para-graph 1 (h).
Consequently, Mexico's claim is a "mixed" claim, to use the terminology of
the International Law Commission, as recognized in paragraph 40 of the
Judgment where it is stated that there are "special circumstances of
interdependence of the rights of the State and [p 91] of individual rights".
Therefore, it was for the Court to determine whether Mexico's claim was
preponderantly based on injury to a national and would not have been brought
but for the injury to its national.
28. In my opinion, Mexico would not have presented its claim against the
United States but for the injury suffered by its nationals. Consequently
the local remedies rule applies to the claims "in its own right" submitted
by Mexico in its first final submission and therefore the Court should have
examined each of the individual cases to determine whether the local
remedies had been exhausted, which do not include "approach to the executive
for relief in the exercise of its discretionary powers . . . remedies as of
grace or those whose 'purpose is to obtain a favour and not to vindicate a
right'". If that was not case, the claims presented by Mexico in the
exercise of diplomatic protection of its nationals were to be dismissed,
unless covered by any of the customarily accepted exceptions to the local
remedies rule, taking into consideration Article 10 of the Draft Articles on
Diplomatic Protection prepared by the International Law Commission (United
Nations, Report of the International Law Commission, Fifty-fifth Session (5
May-6 June and 7 July-8 August 2003), Official Records of the General
Assembly, Fifty-eighth Session, Supplement No. 10 (A/58/10), pp. 88,
92-102). Therefore, it is not possible for me to agree with the conclusion
reached in paragraph 40 of the Judgment.
V
29. On 14 February 2002, the Court stated:
"The Court would recall the well-established principle that 'it is the duty
of the Court not only to reply to the questions as stated in the final
submissions of the parties, but also to abstain from deciding points not
included in those submissions' (Asylum, Judgment, 1. C.J. Reports 1950, p.
402). While the Court is thus not entitled to decide upon questions not
asked of it, the non ultra petita rule nonetheless cannot preclude the Court
from addressing certain legal points in its reasoning." (Arrest Warrant of
¡1 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
J.C.J. Reports 2002, pp. 18-19, para. 43.)
30. In my opinion this statement supports the following observations on the
Judgment in the present case.
31. In its first final submission Mexico requests the Court to adjudge and
declare: [p 92]
"That the United States of America, in arresting, detaining, trying,
convicting, and sentencing the 52 Mexican nationals on death row described
in Mexico's Memorial, violated its international legal obligations to
Mexico, in its own right and in the exercise of its right to diplomatic
protection of its nationals, by failing to inform, without delay, the 52
Mexican nationals after their arrest of their right to consular notification
and access under Article 36 (1) (b) of the Vienna Convention on Consular
Relations, and by depriving Mexico of its right to provide consular
protection and the 52 nationals' right to receive such protection as Mexico
would provide under Article 36 (1) (a) and (c) of the Convention."
(Judgment, para. 14 (I).)
32. Subparagraphs (4), (5), (6), (7) and (8) of paragraph 153, in a rather
sophisticated way, adjudge and declare that "the United States breached the
obligations incumbent upon it" under Article 36, paragraph \ (b) (subparas.
(4) and (5)) ; that "the United States breached the obligations incumbent
upon it under Article 36, paragraph 1 (a) and (c) of the Convention"
(subpara. (6)) ; that "the United States . . . breached the obligations
incumbent upon it under Article 36, paragraph 1 (c) of the Convention"
(subpara. (7)) ; and that "the United States breached the obligations
incumbent upon it under Article 36, paragraph 2, of the Convention"
(subpara. (8)). However, that is not an answer to the first final submission
presented by Mexico, where Mexico 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 to diplomatic protection".
Therefore, in my opinion, the operative part of the Judgment should have
responded to the request made by Mexico in its first final submission.
33. In its second final submission Mexico requests the Court to adjudge and
declare:
"That the obligation in Article 36 (1) of the Vienna Convention requires
notification of consular rights and a reasonable opportunity for consular
access before the competent authorities of the receiving State take any
action potentially detrimental to the foreign national's rights." (Judgment,
para. 14 (2).)
34. In my opinion, the second final submission of Mexico should have been
expressly decided in the operative part of the Judgment and not only
considered in its reasoning. [p 93]
VI
35. Finally it seems appropriate to me to mention that Mexico has
insistently requested restitutio in integrum as a remedy for the alleged
violations of Article 36 of the Vienna Convention by the United States,
because it considers that depriving a foreign national facing criminal
proceedings of the right to consular notification and assistance renders
those proceedings fundamentally unfair (Judgment, para. 30). Mexico has also
reminded the Court throughout the present proceedings of the facts of the
LaGrand case. However, it did not mention that in the LaGrand case the
question of fair trial was not originally raised by the highest State organs
of Germany with their United States counterparts, as is evidenced by the
following documents:
(a) The German Minister of Justice wrote to the United States Attorney
General on 27 January 1999 acknowledging that
"nor are there any doubts about the fact that the proceedings were conducted
under the Rule of Law ultimately leading to imposition of the death
penalties with final and binding effect before the courts of the State of
Arizona and before the Federal Courts" (Memorial of Germany, Vol. II, Ann.
20, pp. 539-542).
(b) In his letter of 5 February 1999 to the former President of the United
States, the German President, acting as Head of State, indicates that "[ijn
no way do I doubt the legitimacy of the conviction nor the fairness of the
procedure before the courts of the State of Arizona and the federal courts"
(Memorial of Germany, Vol. II, Ann. 14, pp. 509-512).
(Signed) Gonzalo PARRA-ARANGUREN.
[p 94]
SEPARATE OPINION OF JUDGE TOMKA
[Translation ]
1. Having voted in favour of the operative part of this Judgment, I
nonetheless wish to clarify my position on certain points of law mentioned
in the Court's reasoning.
I, Diplomatic Protection
2. In bringing this case before the Court, Mexico seeks to assert its own
rights, which it claims to have been violated by the United States, as well
as its right to diplomatic protection of its 52 nationals, whose individual
rights are also alleged to have been violated by the United States.
3. The United States raised two objections to the admissibility of the
Mexican claims based on the exercise of diplomatic protection. The first
objection, that which concerns us here, was that the Mexican claim should be
held inadmissible by the Court on the ground that local remedies had not
been exhausted and were still available in the 52 cases.
4. It would appear from paragraph 40 of the Judgment that the Court accepts
the United States objection to the admissibility of Mexico's claim based on
the exercise of its right of diplomatic protection. In that paragraph, the
Court observes that
"the individual rights of Mexican nationals under paragraph 1 (b) of Article
36 of the Vienna Convention are rights which are to be asserted, at any rate
in the first place, within the domestic legal system of the United States".
The Court concludes:
"Only when that process is completed and local remedies are exhausted would
Mexico be entitled to espouse the individual[p 95] claims of its nationals
through the procedure of diplomatic protection."
In other words, Mexico's claim based on diplomatic protection could be
regarded as inadmissible and the United States objection based on the
failure to exhaust local remedies might appear to have succeeded. The Court
nonetheless rejects the objection on a different ground.
5. The Court rejects the objection because such an objection does not apply
to the claim submitted by Mexico in its own name (although I doubt whether
the United States objection was directed at Mexico's claim in its own name).
6. In order to be able to rule on the alleged violations by the United
States of its obligations to Mexican nationals under Article 36, paragraph
1, of the Vienna Convention, the Court relies on what is in my view a novel
doctrine, without citing any prior jurisprudence in support thereof. The
Court explains that, in the special circumstances of interdependence of the
rights of the State and of individual rights, the State (in this case
Mexico) may, in submitting a claim in its own name, request the Court to
rule on the violation of rights which it claims to have suffered both
directly and through the violation of individual rights conferred on its
nationals under Article 36, paragraph 1 (b).
7. In the present case, in my view, the Court could only reach the
conclusion that the individual rights of Mexican nationals had been
violated if it accepted Mexico's claim that that State was exercising its
right to diplomatic protection. In order for a violation of individual
rights (the rights of individual nationals), to be established, such rights
have to be pleaded before an international court. When the State invokes the
rights of its nationals, it acts in its own name on their behalf, on account
of the wrong done to them: in other words, that State exercises diplomatic
protection. Mexico's main reason for bringing the case before the Court was
the alleged wrong done to its nationals. It is its nationals and their
fate with which Mexico is primarily concerned. In order to give them a
final chance within the United States judicial system, it was vital to
establish violations by the United States of its obligations to Mexican
nationals under the Vienna Convention, and the resultant injury to them. In
my view, it is the violation of the rights of an individual and the wrong
done to that individual, rather than the violation of a right of Mexico and
the resultant injury to that State, that may have a certain role to play in
the context of criminal proceedings in the United States.
8. If this case is viewed in the context of diplomatic protection, we cannot
simply ignore the United States objection that the Mexican nationals have
failed to exhaust local remedies.
9. Faced with this argument on the part of the United States, Mexico [p 96]
maintains that the majority of the Mexican nationals concerned did file
appeals in the United States, unsuccessfully. It adds that, in any event,
the doctrine of procedural default prevented most of them from asserting
their claims, since the matters on which they relied had not been submitted
at an earlier stage of the proceedings precisely because the American
authorities had failed to inform those concerned of their rights, as they
had an obligation to do under Article 36, paragraph 1.
As for their other nationals, Mexico claims that the United States
presented the obligation to exhaust local remedies incorrectly by implying
that it is an absolute rule. Mexico relies on the separate opinion of Judge
Tanaka in the Barcelona Traction case, according to which: "The rule does
not seem to require from those concerned a clearly futile and pointless
activity, or a repetition of what has been done in vain." (Barcelona
Traction. Light and Power Company, Limited, Second Phase, Judgment, I.C. J.
Reports 1970, p. 145.) According to Mexico, a foreign national seeking a
judicial remedy on the ground of a breach of Article 36 would never succeed
in the United States, since the United States courts hold either that
Article 36 does not create an individual right, or that a foreign national
who has been denied his Article 36 rights but given his constitutional and
statutory rights, cannot establish prejudice and therefore cannot get
relief. Mexico further contends that the rule of exhaustion of local
remedies is restricted to judicial remedies, and that the admissibility of
an application to the Court is not subject to the precondition of exhausting
clemency procedures.
10. The International Law Commission, which is currently preparing draft
articles on diplomatic protection, has framed four exceptions to the local
remedies rule. Only the first of these concerns us here. Under this
exception, there is no need to exhaust local remedies when they provide no
reasonable possibility of effective redress. It is for the claimant to prove
"that in the circumstances of the case, and having regard to the legal
system of the respondent State, there is no reasonable possibility of an
effective redress" (Report of the International Law Commission, 2003, United
Nations doc. A/58/10, p. 93, para. 3).
11. Mexico claims that no single court in the United States has ever granted
a judicial remedy for a violation of Article 36 of the Vienna Convention.
12. Although the United States maintains that almost all of the 52 cases put
in issue by Mexico before the Court (save for three, leaving 49) remain
pending, many of them not yet having gone beyond the first direct appeal of
the conviction, it has on the other hand failed to refute Mexico's criticism
of the practice of the United States courts of con-[p 97]sistently refusing
any form of relief for the violation of an obligation under Article 36 of
the Vienna Convention.
13. It would thus have been possible for the Court to conclude that Mexico
has shown that the condition of exhaustion of local remedies did not apply
in the present case to its claim under the head of diplomatic protection.
II. Interpretation Ratione Temporis of the Obligation to Inform under
Article 36, Paragraph 1 (b)
14. I have misgivings as to the interpretation by the Court of Article 36,
paragraph 1 (b). According to that interpretation, which is set out in
paragraph 63 of the Judgment, the obligation under this subparagraph to
provide information to the individual arises only once it is realized by the
arresting authorities that the person is a foreign national, or once there
are grounds to think that person is probably a foreign national.
I consider that this interpretation is not well founded. Were such an
approach to the interpretation of the norms of international law to be
applied more widely, there is a danger that it might weaken the protection
accorded to certain subjects (for example, children) under the pro-cedures
for safeguarding human rights or under international humanitarian law.
15. The obligation laid on the receiving State by Article 36 of the Vienna
Convention does not depend on the authorities of the said State knowing that
the person arrested is a foreigner. The obligation to provide information
arises as soonasa foreigner is detained. Such an arrest con-stitutes an
objective fact sufficient in itself to activate the receiving State's
obligation.
16. Knowledge of the facts plays no role, either in respect of the existence
or applicability of the obligation to provide information under Article 36,
paragraph 1 (b), or in respect of the violation of that obligation.
Ignorance is not a circumstance precluding wrongfulness. Ignorantia non
excusat. The State authorities must show due diligence in the exercise of
their powers, and there is nothing to prevent them from making enquiry, as
soon as the arrest is made, in regard to the nationality of the person
detained. If that person claims to be a national of the country in which he
has been arrested, he can no longer rely on the fact that he was not
informed of his rights under Article 36, paragraph 1, of the Vienna
Convention. Informing a person in custody that the Vienna Convention accords
him certain rights if he is a national of another State is undoubtedly the
best way of avoiding any breach of the obligations incumbent upon the
authorities of the receiving State under Article 36 [p 98] of the
Convention. But those authorities cannot justify their omissions by relying
on their own mistakes or errors of judgment.
III. Cessation
17. The Court states that it cannot uphold Mexico's claim requiring the
United States to cease its violations of Article 36 of the Vienna
Convention with regard to Mexico and its 52 nationals, since Mexico has not
established that the violations by the United States of its obligations
under Article 36 are continuing (Judgment, para. 148).
18. I share the Court's conclusion here. Yet the Court adds a further
element, observing:
"inasmuch as these 52 individual cases are at various stages of criminal
proceedings before the United States courts, they are in the state of
pendente lite ; and the Court has already indicated in respect of them what
it regards as the appropriate remedy, namely review and reconsideration by
reference to the breach of the Vienna Convention".
19. I consider that the fact that individual cases are still pending before
the United States courts is not pertinent to the obligation of cessation.
It is the continuing nature or otherwise of the violation which determines
whether the obligation of cessation exists. The Court can only order the
cessation of a wrongful act if that act continues.
20. The reference to the fact that the cases are still pending before
domestic courts might cause confusion by giving the impression that Mexico's
claim requiring cessation cannot be upheld by the Court because the failure
to exhaust local remedies in the United States either makes the claim
premature, and hence inadmissible, or else precludes the Court from finding
that the obligation concerned has already been violated. Yet this second
hypothesis must clearly be rejected, since the Court, in the same paragraph
148, confirms that what constitutes the appropriate remedy is review and
reconsideration by reference to the breach of the Vienna Convention (a
breach which first has to be established).
21. By the same token, the nature of the appropriate remedy (or form of
reparation) is not pertinent to the obligation of cessation.
(Signed) Peter TOMKA.
[p 99]
SEPARATE OPINION OF JUDGE AD HOC SEPULVEDA
1. The present case constitutes a third attempt by the International Court
of Justice to resolve issues related to the interpretation and application
of the Vienna Convention on Consular Relations. For a third time, the Court
is requested to define the nature and scope of certain international
obligations established in that treaty and the consequences produced by a
breach of the Convention On this third opportunity, the Court is asked to
adjudge whether the United States has "violated its international legal
obligations to Mexico, in its own right and in the exer-cise of its right to
diplomatic protection" of 52 Mexican nationals on death row The Court is
also required to determine whether Mexico has been deprived of the right it
has to provide consular protection and whether the 52 Mexican nationals on
death row were deprived of their nght to receive such consular protection An
affirmative answer to these questions must mean that an international
wrongful act of a State entails [p 100] legal consequences, the most
important one being that Mexico is entitled to reparation for those injuries
Yet in the present Judgment, the Court provides only a partial satisfaction
to Mexico's claims, establishing in its findings a restricted and limited
perspective on a number of matters, especially those related to the essence
of the reparations owed.
2. Even if I may be basically in agreement with most of the findings of the
Court, I have misgivings and reservations about the reasoning employed by
the Court to reach certain conclusions Such reasoning is reflected in
various operative paragraphs of the Judgment Not being able to concur with
all of its terms, I wish to point out the arguments that lead me to question
aspects of the Judgment which I may regard as unsatisfactory
I
3 The Court should have rejected, as untimely, the United States objections
regarding the jurisdiction of the Court and the admissibility of Mexico's
Application It is true that paragraph 1 of Article 79 of the Rules of Court
characterizes as preliminary an objection "the decision upon which is
requested before any further proceedings" The effect of the timely
presentation of such an objection is that the proceedings on the merits are
suspended (Art 79, para 5) There is a general understanding that the United
States did not submit a preliminary objection but then no other objection of
any sort should have been recognized as suitable, if the text of Article
79, paragraph 1, of the Rules of Court is to be strictly interpreted and
applied The text states that
"Any objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application shall be made in writing as soon as
possible, and not later than three months after the delivery of the Memorial
"
The United States presented its objections to jurisdiction and
admissibility far beyond the time-limit prescribed by the Rules of Court
More than four months elapsed before the United States provided to the Court
a number of objections Thus it is at least arguable that "An objection that
is not presented as a preliminary objection in accordance with paragraph 1
of Article 79 does not thereby become inadmissible", and that a party
"failing to avail itself of the Article 79 procedure may forfeit the right
to bring about a suspension of the proceedings on the merits, but can still
argue the objection along with the merits", as the Court has established
(Judgment, para 24) The basic issue relates to the interpretation of the
above-quoted first phrase of Article 79, paragraph 1 "Any objection "
Following a literal interpretation, any objection has to be submitted withm
a defined period of time, in accordance with the Rules [p 101] of Court. The
United States did not comply with such time-limit and its objections should
have been rejected by the Court
4. On the other hand, I can certainly accept the observation made by the
Court that "many of its objections are of such a nature that they would in
any event probably have had to be heard along with the merits" (Judgment,
para 24) By examining very attentively each one of the objections to
jurisdiction and admissibility advanced by the United States, the Court has
provided a richer legal foundation to the basis of its competence, defining
and reaffirming the nature of its role as a tnbunal with the powers to
determine the scope of the international obligations that are a matter of a
dispute between the parties
II
5 On two previous occasions the Court has rejected the notion that it is
assuming the role of ultimate appellate tribunal in national criminal
proceedings. To this effect the Court has found that
"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" (Vienna Convention on Consular Relations (Paraguay v
United States of America), Provisional Measures, Order of 9 April 1998, ICJ
Reports 1998, p 257, para 38).
In the LaGrand Judgment, the Court again established the essence of the
legal objectives it fulfils, according to its own Statute What is required
from the Court is
"to do no more than apply the relevant rules of international law to the
issues in dispute between the Parties to this case. The exercise of this
function, expressly mandated by Article 38 of its Statute, does not convert
this Court into a court of appeal of national criminal proceedings"
(LaGrand, Judgment, ICJ Reports 2001, p 486, para 52 )
6 The Court has also established that a dispute regarding the appropriate
remedies for the violation of the Vienna Convention on Consular Relations
"is a dispute that arises out of the interpretation or application of the
Convention and this is within the Court's jurisdiction" (ibid., p 485, para
48)
7 Mexico's final submissions seek to achieve the settlement of an
international legal dispute arising out of the interpretation of the Vienna
Convention on Consular Relations, with a specific reference to Article 36
Its basic argument is that the application of Article 36 by [p 102] the
United States is inconsistent with its international legal obligations
towards Mexico It follows that if such a breach has been found by the Court,
as it happens in the present case, the international law of State
responsibility is to come into operation, providing the remedial action that
is due as a consequence of an internationally wrongful act
8 Thus the jurisdiction of the Court in this case is beyond doubt and its
functions are well defined Furthermore, there is no question that the Court
is empowered to determine the legal consequences that arise from an
international wrongful act Such consequences entail the obligation to make
reparations. The Court can also impose a duty on the State that has
committed the internationally wrongful act to perform the obligation it has
breached The Court may order the cessation of a wrongful conduct But in the
present Judgment, the Court has opted in favour of a restricted
interpretation of the law of State responsibility, providing a limited reach
to the claims for reparation sought by Mexico The effect of this decision is
not only to assign insufficient relief to a breach of an international
obligation, but also to miss the opportunity before the Court to
substantially develop the international legal foundations of the
responsibility of States, to contribute to the jurisprudence of the
reparations that are incumbent upon the State that is found to have
committed an internationally wrongful act, and to define the nature and
scope of the right to a reparation that an injured State is entitled to An
unsatisfactory rule on the remedial action that is to be assumed by a State
found in a breach of a treaty obligation or of a customary rule may mean a
chain of proceedings before the Court in the forthcoming future, as a result
of an inconclusive determination of how to remedy a violation of
international duties by States
III
9 In its final submission, Mexico requests the Court to adjudge and declare
that the United States "violated its international legal obligations to
Mexico, m its own right and m the exercise of its right to diplomatic
protection of its nationals" by failing to comply with the duties imposed to
it by Article 36, paragraph 1 (a), (b) and (c)
10 In the operative part of the present Judgment, the Court has found that
the United States is in breach of Article 36, paragraph 1 (a), (b) and (c)
Basically, the Court has decided that:
"by not informing, without delay upon their detention, the 51 Mexican
nationals of their rights under Article 36, paragraph 1 (b), of the Vienna
Convention the United States of America breached the obligations incumbent
upon it under that subparagraph" (Judgment, para. 153 (4)),
"by not notifying the appropriate Mexican consular post without delay of the
detention of the 49 Mexican nationals and thereby[p 103]depriving the United
Mexican States of the right, in a timely fashion, to render the assistance
provided for by the Vienna Convention to the individuals concerned, the
United States of America breached the obligations incumbent upon it under
Article 36, paragraph 1 (b)" (Judgment, para. 153 (5));
"in relation to the 49 Mexican nationals the United States of Amenca
deprived the United Mexican States of the right, in a timely fashion, to
communicate with and have access to those nationals and to visit them in
detention, and thereby breached the obligations incumbent upon it under
Article 36, paragraph 1 (a) and (c), of the Convention" (ibid, para 153 (6))
11 It is sufficiently clear that the United States of America is in
violation of treaty obligations incumbent upon it What is not sufficiently
clear in the present Judgment is the nature of the obligations incumbent
upon the United States and, more importantly, to whom are these obli-gations
owed9 Obviously, the answer to this question has an intimate relationship
with the claim made by Mexico that the United States has breached "its
international legal obligations to Mexico in its own right and in the
exercise of diplomatic protection of its nationals".
IV
12 In the LaGrand Judgment it is possible to find an authoritative response
to these legal matters. In that case, Germany contended that
"the breach of Article 36 by the United States did not only infringe upon
the rights of Germany as a State party to the [Vienna] Convention but also
entailed a violation of the individual rights of the LaGrand brothers"
(LaGrand, Judgment, IC J Reports 2001, p 492, para 75)
Thus Germany invoked its right of diplomatic protection, seeking relief
against the United States also on this specific ground
13 The Court provided in LaGrand a definition of the obligations incumbent
upon the United States under Article 36 of the Vienna Convention the
recognition that this Article creates individual rights, that such rights
may be invoked before the Court by the national State of the detained
person, and that these rights were violated in the LaGrand case
14 According to the Court, in the terms established in LaGrand, the
obligation incumbent upon the United States are as follows
"Article 36, paragraph 1 (b), spells out the obligations the receiving State
has toward the detained person and the sending State It provides that, at
the request of the detained person, the receiving State [p 104] must inform
the consular post of the sending State of the individual's detention
'without delay' It provides further that any communication by the detained
person addressed to the consular post of the sending State must be forwarded
to it by authorities of the receiving State 'without delay' Significantly,
this subparagraph ends with the following language 'The said authorities
shall inform the person concerned without delay of his rights under this
subparagraph' (emphasis added) Moreover, under Article 36, paragraph 1 (c),
the sending State's right to provide consular assistance to the detained
person may not be exercised 'if he expressly opposes such action' The
clarity of these provisions, viewed in their context, admits of no doubt. It
follows, as has been held on a number of occasions, that the Court must
apply these as they stand " (LaGrand, Judgment, ICJ Reports 2001, p. 494,
para. 77.)
15 The clarity that the Court found, in the context of LaGrand, of the
provisions of Article 36, is no longer found in the context of the present
case It seems evident that, in the present case, the previously recognized
clarity now admits many doubts and that, now, these provisions must not be
applied as they stand
V
16 Clarity is needed to determine whether Mexico has a right to diplomatic
protection of its nationals and whether the individual rights already
recognized by the Court as having been created may be invoked, in the
present case, by the national State of the detained person The answer
provided m the Judgment does not sufficiently cover the substance of
Mexico's claims. The Court observes that
"violations of the rights of the individual under Article 36 may entail a
violation of the rights of the sending State, and that violations of the
rights of the latter may entail a violation of the rights of the individual
In these special circumstances of interdependence of the nghts of the State
and of individual rights, Mexico may, in submitting a claim in its own
name, request the Court to rule on the violation of rights which it claims
to have suffered both directly and through the violation of individual
rights conferred on Mexican nationals under Article 36, paragraph 1 (b) The
duty to exhaust local remedies does not apply to such a request " (Judgment,
para 40)
17 This statement contained in the present Judgment introduces an
undesirable element of vagueness with respect to what had already been
advanced in the LaGrand Judgment In this latter Judgment, issues related to
diplomatic protection, consular assistance and the creation of individual
rights by Article 36, paragraph 1, of the Vienna Convention [p 105] had been
substantially denned Also matters concerning the problems that arise with
the application of the procedural default rule and the question of the
exhaustion of local remedies were properly and adequately settled by the
Court in LaGrand In the present Judgment, all these issues are examined
under a totally different light, one that is not in every aspect in full
harmony and accordance with the LaGrand Judgment
18. In LaGrand, the Court rejected as unfounded the claim made by the United
States that "the Vienna Convention deals with consular assistance it does
not deal with diplomatic protection" In its submissions, the United States
assumed wrongfully that
"Legally, a world of difference exists between the right of the consul to
assist an incarcerated national of his country, and the wholly different
question whether the State can espouse the claims of its nationals through
diplomatic protection The former is within the jurisdiction of the Court
under the Optional Protocol, the latter is not." {LaGrand, Judgment, ICJ
Reports 2001, p 482, para 40 )
In its objections to the jurisdiction of the Court, the United States tned
to introduce a distinction between jurisdiction over treaties and
jurisdiction over customary law, observing that "even if a treaty norm and
a customary norm were to have exactly the same content", each would have
its "separate applicability"
19 The Court provided an impeccable legal reasoning explaining why the
arguments of the United States were untenable
"The Court cannot accept the United States objections The dispute between
the Parties as to whether Article 36, paragraph I (a) and (c), of the Vienna
Convention have been violated in this case in consequence of the breach of
paragraph 1 (b) does relate to the interpretation and application of the
Convention This is also true of the dispute as to whether paragraph 1 (b)
creates individual rights and whether Germany has standing to assert those
rights on behalf of its nationals Moreover, the Court cannot accept the
contention of the United States that Germany's claim based on the individual
rights of the LaGrand brothers is beyond the Court's jurisdiction because
diplomatic protection is a concept of customary international law This fact
does not prevent a State party to a treaty, which creates individual rights,
from taking up the case of one of its , nationals and instituting
international judicial proceedings on behalf of that national, on the basis
of a general jurisdictional clause in such a treaty " {LaGrand, Judgment,
ICJ Reports 2001, pp 482483, para 42, emphasis added )
20. In its final submissions, Mexico clearly distinguishes between the
institution of diplomatic protection and the institution of consular
assistance It asks the Court to adjudge and declare [p 106]
"(1) that the United States of America violated its international legal
obligations to Mexico, in its own right and in the exercise of its right of
diplomatic protection of its nationals, by failing to inform, without delay,
the 52 Mexican nationals after their arrest of their right to consular
notification and access under Article 36 (1) (b) of the Vienna Convention on
Consular Relations, and by depriving Mexico of its right to provide
consular protection and the 52 nationals' right to receive such protection
as Mexico would provide under Article 36 (1) (a) and (c) of the Convention "
21 The reading of this submission makes obvious that there are two different
kinds of breaches * one is related to obligations owed to Mexico in its own
right and in the exercise of its right of diplomatic protection of its
nationals, the second one has to do with Mexico's depnval of its right to
consular assistance and the corresponding right of its nationals to receive
such assistance. It is to be understood that
"diplomatic protection consists of resort to diplomatic action or other
means of peaceful settlement by a State adopting in its own right the cause
of its national in respect of an injury to that national arising from an
internationally wrongful act of another State",
according to the definition of the International Law Commission That is
precisely the basis of Mexico's claim
22 It is believed that the Court, m response to Mexico's submission, should
have recognized, as a matter of its right to exercise diplomatic protection,
the espousal by Mexico at the international level of the claims of the 52
Mexican nationals whose individual rights have been denied, amounting to the
denial of justice through the judicial process of the United States Such a
recognition would have been particularly relevant in the cases of Mr Fierro
Reyna, Mr Moreno Ramos and Mr Torres Aguilera, three cases in which all
judicial remedies have been exhausted. But the right of diplomatic
protection of Mexico is also valid in the case of the other 49 Mexican
nationals, since the application of the doctrine of procedural default by
United States courts means, for all practical purposes, that there are no
remedies to exhaust, and that the futility rule becomes fully operative, as
will be explained later on
23 Had the Court followed its previous jurisprudence and applied it in the
present case, it would have been acting in line with the LaGrand [p 107]
Judgment, where the Court rejected the argument made by the United States
that "the right of a State to provide consular assistance to nationals
detained in another country, and the right of a State to espouse the laws of
its nationals through diplomatic protection, are legally different concepts"
(LaGrand, Judgment, IC J Reports 2001, p 493, para. 76). The Court also
rejected in LaGrand the contention of the United States that "rights of
consular notification and access under the Vienna Convention are rights of
States, and not of individuals, even though these rights may benefit
individuals by permitting States to offer them consular assistance" (ibid.)
One would have thought that these claims by the United States were put to
rest, definitively and convincingly by the Court when it stated that
"the Court concludes that Article 36, paragraph 1, creates individual
rights, which, by virtue of Article I of the Optional Protocol, may be
invoked in this Court by the national State of the detained person These
rights were violated in the present case " (LaGrand, Judgment, ICJ
Reports2001, p 494, para 77.)
24 If individual rights were violated in the LaGrand case, and if
individual rights are being violated in the present case, then it follows
from these premises that there is only one legal, obvious and necessary
conclusion that the individual rights of the 52 Mexican nationals may be
invoked in this Court by Mexico. A contrary conclusion is incompatible with
the decision of the Court in the LaGrand Judgment
VI
25 Furthermore, the present Judgment departs substantially from the findings
in the LaGrand Judgment in a number of other aspects, related to the
circumstances in which local remedies must be exhausted, to application of
the procedural default rule and to the question of denial of justice
26 The rules that are to be applied in order to settle the issue of the
exhaustion of local remedies have previously been decided by the Court They
are linked to the doctrine of procedural default In LaGrand, the Court found
that
"the procedural default rule prevented them from attaching any legal
significance to the fact, inter aha, that the violation of the rights set
forth in Article 36, paragraph 1, prevented Germany, in a timely fashion,
from retaining private counsel for them and otherwise assisting in their
defence as provided for by the Convention Under these circumstances, the
procedural default rule had the effect of preventing 'full effect [from
being] given to the purposes for which the rights accorded under this
Article are intended', and thus violated paragraph 2 of Article 36 "
(LaGrand, Judgment, ICJ. Reports 2001, pp 497-498, para 91 ) [p 108]
27. It is generally accepted by the Court that the procedural default rule
represents a bar to obtain a remedy in respect of the violation of the
rights contained in the Vienna Convention Thus Mexico's claims cannot be
rejected on the basis of the non-exhaustion of local remedies, as "it was
the United States itself which failed to carry out its obligations under the
Convention", as was rightly established by the Court in LaGrand.
28 Local remedies must be exhausted, but not if the exercise is "a clearly
futile and pointless activity" (Barcelona Traction, Light and Power Company,
Limited, ICJ Reports 1961, p 145) The need for the principle of the
exhaustion of local remedies to have a degree of effectiveness was provided
by the Court when it found that
"for an international claim to be admissible, it is sufficient if the
essence of the claim has been brought before the competent tribunals and
pursued as far as permitted by local law and procedures, and without
success" (Elettronica Sicula S p A (ELSI), Judgment, I C J Reports 1989, p.
46, para 59, emphasis added)
29 The United Nations International Law Commission (ILC) has been working on
the topic of diplomatic protection for a number of years The Special
Rapporteur, in his Third Report, submitted to the ILC a draft Article by
which local remedies do not need to be exhausted if they provide no
reasonable possibility of an effective redress. Thus the non-recourse to
local remedies require a tribunal to
"examine circumstances pertaining to a particular claim which may not be
immediately apparent, such as the independence of the judiciary, the
ability of local courts to conduct a fair trial, the presence of a line of
precedents adverse to the claimant and the conduct of the respondent State.
The reasonableness of pursuing local remedies must therefore be considered
in each case " (ILC, Third Report on Diplomatic Protection, A/CN 4/523,7
March 2002, para 45, emphasis added)
30 There is an evident need to examine the nature of the remedies that are
to be exhausted For these purposes, the "futility rule" is to be applied
There is a clear support to the notion that
"the local remedies which must be exhausted include remedies of a legal
nature 'but not extra-legal remedies or remedies as of grace', or those
whose 'purpose is to obtain a favor and not to indicate a right'.
Administrative or other remedies which are not judicial or quasi-judicial in
character and are of a discretionary character therefore fall outside the
application of the local remedies rule " (ILC, [p 109]Third Report on
Diplomatic Protection, A/CN 4/523, 7 March 2002, para 14)
Thus clemency is not a local remedy that must be exhausted, and, as the
Court has found in the present Judgment, clemency is "not sufficient in
itself to serve as an appropriate means of 'review and reconsideration'"
(para 143) The reason for this finding is that "the process of review and
reconsideration should occur within the overall judicial proceedings
relating to the individual defendant concerned" (Judgment, para. 141). Thus
the Court regards clemency as a non-judicial procedure
31 The ILC Special Rapporteur on Diplomatic Protection establishes in his
commentary, included in his Third Report, that there is no need to exhaust
local remedies when such remedies are ineffective or the exercise of
exhausting such remedies would be futile The reason for this is that a
claimant is not required to exhaust justice in a foreign State "when there
is no justice to exhaust" (ILC, Third Report on Diplomatic Protection, A/CN
4/523, 7 March 2002). As a result of the application of the procedural
default rule by the United States courts to the Mexican nationals that are
under Mexico's diplomatic protection, it is not suitable to sustain that
there is a need to exhaust local remedies when it has already been found
that the doctrine of procedural default imposes a judicial bar to such
remedial action, thus establishing a legal impediment to a municipal redress
VII
32 As interpreted by the Court in the LaGrand Judgment, Article 36,
paragraph 2, imposes a number of obligations on the parties
(a) As a consequence of the determination made by the Court of the nature of
the rights contained in Article 36, paragraph 1, "the reference to 'rights'
in paragraph 2 must be read as applying not only to the rights of the
sending State, but also to the rights of the detained individual" (LaGrand,
Judgment, IC J Reports 2001, p 497, para 89)
(b) The specific application of the "procedural default" rule becomes
problematical when the rule does not "allow the detained individual to
challenge a conviction and sentence" by claiming that a breach of the
"without delay" consular notification has occurred, "thus preventing the
person from seeking and obtaining consular assistance from the sending
State" (ibid., p 497, para 90)
(c) At the request of the detained person, the sending State has the right
to arrange for his legal representation
(d) The procedural default rule is an impediment for the United States [p
110] courts to attach "any legal significance to the fact, inter aha, that
the violation of the rights set forth in Article 36, paragraph 1, prevented
Germany, in a timely fashion, from retaining private counsel for [its
nationals] and otherwise assisting in their defence as provided for by the
Convention" (ICJ Reports 2001, pp 497-498, para 91)
(e) The procedural default rule had the effect, under these circumstances,
of preventing " 'full effect [from being] given to the purposes for which
the rights accorded under this article are intended', and thus violated
paragraph 2 of Article 36" (ibid, p 498, para 91).
33. Yet, according to the evidence provided in the written and oral
proceedings, the United States courts, even after LaGrand, still continue to
apply the procedural default rule in the same manner as those courts did in
the pre-LaGrand phase The reason submitted by the United States is that
"procedural default rules will possibly preclude such claim on direct appeal
or collateral review, unless the court finds there is cause for the default
and prejudice as a result of these alleged breach" (Counter-Memorial of the
United States of America (CMUS), para 6 65) How-ever, no court in the United
States has found that "there is cause for the default and prejudice" in
cases of a Vienna Convention claim, under the argument that Article 36
rights are not constitutional rights
34 In this context, it may be useful to recall what Justice Stevens, of the
United States Supreme Court, had to say on the matter The Supreme Court
declined to grant certiorari to hear a recent case, but in this separate
opinion, Justice Stevens stated
"applying the procedural default rule to Article 36 claims is not only in
direct violation of the Vienna Convention, but it is also manifestly unfair.
The ICJ's decision in LaGrand underscores that a foreign national who is
presumptively ignorant of his right to notification should not be deemed to
have waived the Article 36 protection simply because he failed to assert
that right in a state criminal proceeding " (CR 2003/24, para 244)
35 The actual and accepted practice of the United States courts on the
interpretation and application of Article 36, paragraph 2, and of the
LaGrand Judgment imposes severe restrictions on the concept of review and
reconsideration, since it fails to provide a legal remedy that may be in
agreement with the letter and the spirit of the Vienna Convention and
LaGrand The United States courts are condemned to repetition, since a legal
straightjacket is imposed by the prevailing system, a system that [p 111]
does not regard a breach of Article 36 as a breach of a constitutional
right.
36 The detained foreign person subject to a trial in the judicial system of
the United States will find himself trapped in a cloistered legal situation
He may be unaware of his rights to consular notification and communication
And then due to the failure of the competent authonttes to comply with
Article 36, he will be unable to raise the violation of his rights as an
issue at trial. Because of that, and since he did not claim his rights at
the proper judicial time due to ignorance, federal and state courts will
hold the doctrine of procedural default, which will bring about the defeat
of remedies for the violation of rights established by Article 36 As a
result of this chain of judicial events, there will be a legal impossibility
to escape from this entrapment unless a way out is provided by a precise
definition of the purposes that are to be achieved by a process of review
and reconsideration Such a definition must break the barrier that imposes a
recurrent and absurd circular legal argument, one that paralyses any
meaningful remedial action that may be undertaken when there is a breach of
Article 36
37. In the present Judgment the Court correctly states (para 112) that the
problem to which attention was drawn in the LaGrand case, and which is also
pertinent in the present case,
" 'arises when the procedural default rule does not allow the detained
individual to challenge a conviction and sentence by claiming, in reliance
on Article 36, paragraph 1, of the Convention, that the competent national
authorities failed to comply with their obligation to provide the requisite
consular information "without delay", thus preventing the person from
seeking and obtaining consular assistance from the sending State.' (ICJ
Reports2001, p 497, para 90) "
On this basis, the Court concluded in LaGrand that "the procedural default
rule prevented counsel for the LaGrands to effectively challenge their
convictions and sentences other than on United States constitutional
grounds" (ICJ Reports 2001, p. 497, para 91) But what is even more relevant
is the finding of the Court in the present case "This statement of the
Court seems equally vahd in relation to the present case, where a number of
Mexican nationals have been placed exactly in such a situation " (Judgment,
para 112) Furthermore, there is one additional important conclusion
"the Court simply notes that the procedural default rule has not been
revised, nor has any provision been made to prevent its application in
cases where it has been the failure of the United States itself to inform
that may have precluded counsel from being in a position to have raised the
question of a violation of the Vienna Convention in the initial trial"
(Judgment, para 113) [p 112]
38 In examining the issue of the procedural default doctrine, the Court
seems to agree, m the first instance, with the contention made by Mexico,
the argument as expressed by Mexico being basically the following
" 'a defendant who could have raised, but fails to raise, a legal issue at
trial will generally not be permitted to raise it in future proceedings, on
appeal or in a petition for a writ of habeas corpus' [Memorial of Mexico
(MM), para. 224] The rule requires exhaustion of remedies, inter aha, at the
state level and before a habeas corpus motion can be filed with federal
courts. In the LaGrand case, the rule in question was applied by the United
States federal courts; in the present case, Mexico also complains of the
application of the rule in certain state courts of criminal appeal [MM,
paras 228-229] " (Judgment, para 111)
39 There seems to be an essential coincidence between Mexico's arguments
and the reasoning contained in the present Judgment The Court establishes
the following basic premises
(a) "the procedural default rule has not been revised, nor has any
provision been made to prevent its application in cases where it has been
the failure of the United States itself to inform that may have precluded
counsel from being in a position to have raised the question of a violation
of the Vienna Convention in the initial trial",
(b) "[i]t thus remains the case that the procedural default rule may
continue to prevent courts from attaching legal significance to the fact,
inter aha, that the violation of the rights set forth in Article 36,
paragraph 1, prevented Mexico, in a timely fashion, from retaining private
counsel for certain nationals and otherwise assisting in their defence",
(c) "[i]n such cases, application of the procedural default rule would have
the effect of preventing 'full effect [from being] given to the purposes for
which the nghts accorded, under this Article are intended', and thus violate
paragraph 2 of Article 36";
(d) "in several of the cases cited in Mexico's final submissions the
procedural default rule has already been applied, and that in others it
could be applied at subsequent stages in the proceedings" (Judgment, para
113)
40 Being in essence in agreement with these fundamental premises, the Court
and Mexico then part company and reach different conclusions Mexico
contends that the United States has violated and continues to violate the
Vienna Convention
"By applying provisions of its municipal law to defeat or foreclose remedies
for the violation of nghts conferred by Article 36 thus failing to provide
meaningful review and reconsideration of severe [p 113] sentences imposed in
proceedings that violated Article 36." (MM, p 93, para 226)
41 One first issue in Mexico's argument is related to the continuity in the
non-compliance and the non-applicability, in the courts of the United
States, of the concept of "review and reconsideration" mandated in LaGrand
But there is an additional element
"despite this Court's clear analysis in LaGrand, U S courts at both the
state and federal level, continue to invoke default doctrines to bar any
review of Article 36 violations even when the national had been unaware of
his rights to consular notification and communication and thus his ability
to raise their violation as an issue at trial, due to the competent
authorities' fadure to comply with Article 36" (MM, p 93, para 227).
42 More as an expression of hope than as a reflection of the mechanics that
have been imposed in the United States courts by the application of the
procedural default doctrine, the present Judgment finds that, with the
exception of Mr. Fierro (case No 31), Mr Moreno (case No. 39) and Mr Torres
(case No. 53), where conviction and sentence have become final, in none of
the other 49 cases
"have the criminal proceedings against the Mexican nationals concerned
already reached a stage at which there is no further possibility of
judicial re-examination of those cases, that is to say, all possibility is
not yet excluded of 'review and reconsideration' of conviction and sentence,
as called for in the LaGrand case It would therefore be premature for the
Court to conclude at this stage that, in those cases, there is already a
violation of the obligations under Article 36, paragraph 2, of the Vienna
Convention " (Judgment, para 113.)
43 The Court may be right in leaving open a possibility of a process of
review and reconsideration and in finding that it is premature to conclude
that there is already a breach of Article 36 But if the post-LaGrand
experience is of any value, the potential to submit the rule of procedural
default to a meaningful and effective system of review and reconsideration
by the courts of the United States is rather remote Notwithstanding the
clear mandate provided in the LaGrand Judgment, the aftermath of LaGrand
provides evidence that there is little judicial wish in the United States
courts to "allow the review and reconsideration of the conviction and
sentence by taking account of the violation of the rights set forth" in the
Vienna Convention, as ordered by the Court in the LaGrand Judgment
44 The fact is that, as has been already stated, no judicial review and [p
114] reconsideration is left for Mr Fierro (case No. 31), Mr Moreno (case No
39), and Mr Torres (case No 53), since there are no further judicial
remedies for these three Mexican nationals who, according to the Court, have
been at risk of execution at least from the time the Court ordered
provisional measures on 5 February 2003, obligating the United States to
take all necessary steps to ensure that they were not executed before the
Court rendered judgment on Mexico's claims In addition to these three cases,
ten Mexican nationals are unable to challenge their convictions and
sentences on the basis of violations of Article 36, paragraph 1, because
their ability to do so has been barred by the procedural default doctrine
Furthermore, 18 Mexican nationals will find themselves in a similar
situation, because they did not raise the Vienna Convention claims at trial
Again, because of the procedural default rule, they will also be barred from
challenging their convictions and sentences on this basis, once they attempt
to raise the claim on appeal or in post-conviction proceedings that are
still ongoing (CR 2003/24, p 69, para 245)
45 It seems far beyond the realm of the possible that these 31 Mexican
nationals can rely, once they have no further judicial redress, or once they
are subject to the application of the procedural default doctrine, on a
process of judicial review and reconsideration by the United States courts
The room for legal manoeuvring is already too narrow to deposit any
realistic hope in an effective and meaningful judicial remedy once the
procedural default rule is put into operation One cannot but share the view
provided by the Court in the present Judgment
"The crucial point in this situation is that, by the operation of the
procedural default rule as it is applied at present, the defendant is
effectively barred from raising the issue of the violation of his rights
under Article 36 of the Vienna Convention and is limited to seeking the
vindication of his rights under the United States Constitution " (Judgment,
para 134)
Yet having reached such an unobjectionable conclusion, the Court does not
follow its holding to its ultimate consequences, remaining much too shy as
to the redress that should be provided. It is not unreasonable to assume
that once the judicial process is completed and the remedies for the
violations are finally unavailable, a denial of justice may come into being,
unleashing a chain of legal consequences at the international level
VIII
46 According to Article 36, paragraph 1 (c), consular officers have the
right to arrange for the legal representation of a national who is in
prison, custody or detention Such a right is particularly important in [p
115] cases in which a severe penalty may be imposed In a peculiar
interpretation of the nature of this nght, in the present Judgment it is
pointed out that
"the exercise of the rights of the sending State under Article 36, paragraph
1 (c), depends upon notification by the authorities of the receiving State
It may be, however, that information drawn to the attention of the sending
State by other means may still enable its consular officers to assist in
arranging legal representation " (Judgment, para 104)
And then the Judgment reaches a conclusion that may have no factual or legal
support
"the Mexican consular authorities learned of their national's detention in
time to provide such assistance, either through notification by United
States authorities (albeit belatedly in terms of Article 36, paragraph 1
(b)), or through other channels" (ibid , emphasis added)
m the case of the 16 Mexican nationals that are listed in the Judgment,
providing their name and the number of their case
47 A review of these 16 cases should lead to a different conclusion In most
if not all cases legal representation was badly needed from the very
beginning, when such assistance is of the utmost necessity and benefit In
certain of the quoted cases the legal representation was provided when the
Mexican national had already been convicted There are certain cases of
severe mental illness that required proper legal representation at an early
stage of the trial, one that could have been provided by a consular officer
ready to assist also in the impaired and disadvantaged condition of the
mentally ill Mexican national There are cases of mental retardation, a
circumstance that facilitated incriminating statements made without a
lawyer being present, which later negatively affected the Mexican national
dunng his trial There are certain cases of confessions obtained through
torture, an event that would certainly contradict the notion that
notification was not so late as to effectively preclude arranging legal
representation There are certain cases of Mexican nationals that understood
no English whatsoever, be it written or spoken, and yet had to sign
self-mcnminating statements without the benefit of an interpreter or of a
Spanish-speaking lawyer There are certain cases where Mexican consular
officials learned of the arrest of a Mexican national three years after his
arrest, once he had been already sentenced to death
48 From a legal point of view, a matter of great concern must be the notion
implicit in the Judgment that notification under Article 36, paragraph 1
(b), albeit not made "without delay", was not so late as to effectively
preclude legal representation (Judgment, para 104) In most if not [p 116]
all of the 16 cases quoted there was no consular notification made by the
competent authorities, which has already been found to be a violation of
Vienna Convention obligations In the operative part of the Judgment, the
Court clearly establishes that the United States is in breach of the
obligations imposed upon it by Article 36, paragraph 1 (a), (b) and (c)
Three fundamental breaches are found by the Court (not informing without
delay of the rights of 51 Mexican nationals, not notifying the appropriate
Mexican consular post without delay of the arrest of 48 Mexican nationals,
depriving Mexico of the right to provide, in a timely fashion, assistance to
the individuals concerned, depriving Mexico of the right, in a timely
fashion, to communicate with and have access to its nationals and to visit
them in detention) Yet it seems rather odd that the Court, in spite of these
findings, establishes, with no further argument, that "Mexican consular
authorities learned of their national's detention in time to provide" legal
assistance Furthermore, the "without delay" breach, already established by
the Court, radically contradicts the idea that legal representation may be
provided at a later period, belatedly, whatever the circumstances of the
detention and whatever the stage of the trial may be, without infringing
Article 36, paragraph 2. This exegesis of the Vienna Convention finds no
foundation in the text of the treaty and defeats the traditional rules of
hermeneutics But, in addition to the breach of Article 36, nothing in the
Vienna Convention allows for such an interpretation, one that subjectively
declares whether or not legal representation in accordance with Article 36,
paragraph 1 (c), is being provided at the right time Such an interpretation
does not comply with the Vienna Convention or with any of the previous
holdings of the Court Yet its consequences are most damaging It means
excluding from the decision of the Court those 16 cases quoted in paragraph
104 of the present Judgment. If, as Mexico claims, it has been deprived
specifically to arrange legal representation, and consequently its
nationals were deprived of the possibility of receiving the corresponding
assistance, under Article 36, paragraph 1 (c), and the claim is to be
applicable only to the 34 Mexican nationals listed in paragraph 106 (4) of
the Judgment and mentioned in finding No 7 of its operative part, then the
dramatic effect is that, without any legal or factual basis, Mexico and 16
Mexican nationals are being depnved of their right to provide and receive
legal representation in criminal proceedings that have resulted in their
being on death row Such a dramatic effect runs contrary to previous findings
by the Court:
"It follows that when the sending State is unaware of the detention of its
nationals due to the failure of the receiving State to pro-[p 117]vide the
requisite consular notification without delay,. the sending State has been
prevented for all practical purposes from exercising its rights under
Article 36, paragraph 1 It is immaterial for the purposes of the present
case whether the LaGrands would have sought consular assistance from
Germany, whether Germany would have rendered such assistance, or whether a
different verdict would have been rendered It is sufficient that the
Convention conferred these rights, and that Germany and the LaGrands were in
effect prevented by the breach of the United States from exercising them,
had they so chosen." (LaGrand, Judgment, I CJ Reports 2001, p 492, para. 74)
49 The purpose of Article 36 is to facilitate the exercise of consular
functions related to nationals of the sending State It imposes a number of
obligations on the receiving State and provides certain nghts of consular
protection on behalf of a national of the sending State that has been
"arrested or committed to prison or to custody pending trial or is detained
in any other manner" Whenever such an event may happen, the receiving State
"shall, without delay, inform the consular post of the sending State".
Additionally, "consular officers shall have the right to visit a national of
the sending State who is in prison, custody or detention to arrange for his
legal representation" Surely the essential objective of this principle is to
guarantee that the protected national who is in prison, custody or detention
has the benefit of expert legal advice before any action is taken
potentially detrimental to his nghts As a consequence of this principle,
the notification should be given immediately and prior to interrogation,
especially in the case of serious crimes, if the exercise of right is to be
useful
IX
50 The right of the consular officer to arrange for the legal
representation of the protected national is beyond question If the
competent authorities of the receiving State are under the obligation to
inform the protected national, without delay, of his rights of consular
assistance, which include arranging for legal representation, in accordance
with Article 36, then this principle can be regarded as closely related, in
spirit and content, to the Miranda warning. The Advise of Rights established
in the Miranda warning comprises seven elements Four of them are directly
linked to legal representation
(a) you have the right to talk to a lawyer for advice before we ask you any
questions,
(b) you have the right to have a lawyer with you during your questioning,
(c) if you cannot afford a lawyer, one will be appointed for you before any
questioning if you wish, and [p 118]
(d) if you decide to answer questions now without a lawyer present, you have
the right to stop answering at any time
51. To be useful, the consular right to arrange for the legal
representation of the protected national should be exercised by the sending
State as soon as possible There should be a corresponding obligation on the
part of the receiving State not to undertake any action that may affect the
rights of the protected person To this effect, it may be useful to quote
LaGrand
"the procedural default rule prevented them from attaching any legal
significance to the fact, inter aha, that the violation of the rights set
forth in Article 36, paragraph 1, prevented Germany, in a timely fashion,
from retaining private counsel for them and otherwise assisting their
defence as provided for by the Convention" (LaGrand, Judgment, ICJ Reports
2001, pp 497-498, para. 91, emphasis added)
52 The essence of the controversy centres on the nature and scope of the
rights provided by Article 36. If the United States courts deny that the
Vienna Convention creates individual rights no conciliation will be found
with the LaGrand Judgment, which has already recognized the existence of
such individual rights The issue to be decided is whether a breach of
Article 36 will mean, under certain circumstances, a breach of a
constitutional right, thus violating the principle of due process of law and
the individual rights of the foreign national subject to a trial.
53 The Miranda warning, an integral part of the United States system of
constitutional rights, includes a number of principles related to legal
representation, regarded as fundamental due process rights. One of the
purposes of Article 36 is to identify and validate certain individual rights
This principle has been clearly established in the LaGrand Judgment To
exercise an individual right there is a need to provide a mechanism for its
implementation, since rights do not operate in a void. The importance of
this mechanism is particularly relevant whenever there is a breach of the
corresponding obligations, imposing a duty to redress the wrong done
54 The Miranda warning provides the foundation for due process of law of the
detained person from the very moment of his arrest As may be understood by
the findings in the LaGrand Judgment and in the present Judgment, under
certain circumstances Article 36 establishes a number of basic elements to
ensure a fair trail from the time a foreign national is subject to custody
by competent authonties up to the end of his judicial process. There is an
intimate link between the Miranda warning and Article 36 in the sense that
both aim at creating a scheme of protection of rights that directly impinge
on the fairness of a trial This scheme of protection may and should become
effective and operative from the very first [p 119] stages, preserving the
rights of the detained person from an interrogation that may do him an
unjustified harm at a later period of his judicial process. Under these
assumptions, the individual rights of a detained person will be better
protected if the corresponding consular officer arranges for his legal
representation, involving a defence counsel of quality and with experience
in the legal procedures that affect foreign nationals in capital cases The
scheme of protection will also be essential on other issues that are also an
integral part of due process of law plea-bargaining, the gathering of
evidence, submission of investigative evidence
55 Consular protection may be an important element for due process of law,
especially in capital cases Depending on the circumstances of each case,
individual rights emanating from Article 36 can be equated with
constitutional rights when the question to decide is closely related to the
fair administration of justice If this premise is recognized and accepted,
then the Fifth Amendment to the United States Constitution can be invoked
This amendment specifically provides for procedural guarantees in cases of
"a capital or otherwise infamous crane", adding that no person shall "be
deprived of hfe, liberty or property, without due process of law"
56 In LaGrand, the Court found that "it would be incumbent upon the United
States to allow the review and reconsideration of the conviction and
sentence by taking account of the violation of the rights set forth in the
Convention" These nghts must be considered fundamental to due process A
distinction has been made by the United States, arguing that those rights
are procedural rights and not substantive rights But it may well be that a
violation of a procedural right will profoundly affect due process of law
There has to be a fine lme drawn between substantive rights and procedural
nghts in certain cases In the Miranda warning, is the right to talk to a
lawyer for advice before any questions are asked a substantive or a
procedural nght7 Whatever the preference may be the answer to this question,
the fact is that the Miranda warning is embedded in the constitutional
system of the United States and is part of its legal culture Fundamental
procedural rights become an essential element in the protection of
individual rights,, transforming a legal instrument into a constitutional
pnnciple Thus the nghts afforded by Article 36 of the Vienna Convention
should be considered fundamental to due process
57 The Court found, m the LaGrand Judgment, that
"Article 36, paragraph 1 (b), spells out the obligations the receiving State
has towards the detained person and the sending State [p 120] Based on the
text of these provisions, the Court concludes that Article 36, paragraph 1,
creates individual rights, which, by virtue of Article I of the Optional
Protocol, may be invoked in this Court by the national State of the detained
person " (I C J Reports 2001, p 494, para 77)
The sending State is thus the depository of a nght to provide consular
protection to its detained nationals, and foreign nationals have the nght to
seek the assistance of its consular officers when detained By depriving
Mexico and its nationals of the exercise of the rights provided in the
Vienna Convention and established by the Court in LaGrand, the breach
committed by the United States has resulted in fundamentally unfair criminal
proceedings for the Mexican nationals
X
58 Mexico has requested that, "pursuant to the injuries suffered by Mexico
in its own right and in the exercise of diplomatic protection of its
nationals, [it] is entitled to full reparation for these mjunes in the form
of restitutio in integrum" In the present Judgment, the Court seems, at
first, to agree to the petition made by Mexico It quotes what it considers
to be the general principle applicable to the legal consequences of an
internationally wrongful act "It is a principle of international law that
the breach of an engagement involves an obligation to make reparation in an
adequate form " (Factory at Chorzow, Jurisdiction, Judgment No 8, 1927,
PCIJ, Series A, No 9, p 21) Then the Court takes the argument further by
quoting a classical elaboration of what reparation means:
"The essential pnnciple contained in the actual notion of an illegal act a
principle that seems to be established by international practice and in
particular by the decisions of arbitral tribunals is that reparation must,
as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if
that act had not been committed " (Factory at Chorzow, Merits, Judgment No
13, 1928, PCIJ, Series A, No 17, p 47)
59 If the Court had assumed the full consequences of this finding, made by
its judicial predecessor, by establishing that, in the present case, the
reparation for the violation should he in "re-establishing the situation
which would, in all probability, have existed if that act had not been
committed", that would have meant answering affirmatively all the remedial
actions requested by Mexico
60 But the Court has preferred to Temain aloof from the principle of
restoration and concentrate its attention in defining what it considers to
be the task of the Court in the present case, which is "to determine what
would be adequate reparation for the violation of Article 36" (Judgment,
para 121) a concept that according to the Judgment "vanes depending [p 121]
upon the concrete circumstances surrounding each case and the precise nature
and scope of the injury" (Judgment, para. 119) The Judgment concludes that
"the internationally wrongful acts committed by the United States were the
failure of its competent authonties to inform the Mexican nationals
concerned, to notify Mexican consular posts and to enable Mexico to provide
consular assistance. It follows that the remedy to make good these
violations should consist in an obligation on the United States to permit
review and reconsideration of these nationals' cases by the United States
courts " (Judgment, para. 121 )
This finding falls short of what Mexico had requested, since Mexico was
sustaining its arguments on the basis of the "essential principle"
consecrated m the Chozdw Factory case and previously recognized by this
Court, which is to re-establish the situation which would, in all
probability, have existed if that act had not been committed
XI
61 There is, in the present Judgment, a definition of the character and
scope of review and reconsideration of convictions and sentences. The
qualification is that is has to be carried out "taking account of the
violation of the rights set forth in the Convention", as established in the
LaGrand Judgment, and "including, in particular, the question of the legal
consequences of the violation upon the criminal proceedings that have
followed the violation" (Judgment, para 131). Unfortunately, this
qualification is not specifically included in the respective finding that is
contained m the operative paragraphs of the Judgment
62 The scope of the obligation to allow "review and reconsideration of the
conviction and sentence" has to be interpreted examining Article 36 as a
whole. As the Court found in LaGrand, the first paragraph of this Article
"begins with the basic principle governing consular protection: the right of
communication and access" Next comes the modalities of consular notification
Then there are the measures consular authonties may take m rendering
consular assistance to a detained national If this interrelated system of
consular protection is breached, there is a duty of the receiving State to
undertake certain measures, which are, according to the LaGrand Judgment,
the following
(a) Where the individuals concerned have been subjected to prolonged
detention or convicted and sentenced to severe penalties, it would be
incumbent upon (the receiving State) to allow the review and reconsideration
of the conviction and sentence.
(b) The review and reconsideration process must take into account the
violation of the nghts set forth in this Convention. [p 122]
(c) The obligation to review and reconsider can be earned out in various
ways; the choice of means must be left to the receiving State
63 Article 36, paragraph 2, of the Vienna Convention and the LaGrand
Judgment impose an essential condition* the process of review and
reconsideration must take into account the violations of the rights set
forth in the Convention and the process must give full effect to the
purposes for which the nghts accorded in Article 36 are intended In LaGrand,
the Court also found the United States in breach of its obligations by "not
permitting the review and reconsideration, in the light of the nghts set
forth in the Convention, of the convictions and sentences of the LaGrand
brothers " (LaGrand, Judgment, ICJ Reports 2001, p 515, para 128(4))
64 Indeed the rights that are stipulated in Article 36, paragraph 1, are to
be implemented m accordance with the laws and regulations of the receiving
State But these laws and regulations "must enable full effect to be given to
the purposes for which the rights accorded under this Article are intended"
In the present Judgment, it is difficult to find any clanfy-mg statements as
to how these obligations are to be implemented and what are the precise
conditions that are to be applied in order to ensure that the process of
review and reconsideration will be effective and meaningful. Such
statements and conditions should be an integral part of the Judgment,
particularly in its operative part, as an essential determination of the
remedial measures that are being required by the Court
65 The United States has indicated that, if there has been a breach of
Article 36,
"The whole point is simply to examine the conviction and sentence m light
of the breach to see whether, in the particular circumstances of the
individual case, the Article 36 breach did have some consequences some
impact that impinged upon fundamental fairness and to assess what action
with respect to the conviction and sentence that may require " (CR 2003/29,
p 20, para. 3 6, Philbin )
It is also said by the United States that it is true that
"if a defendant fails to raise a claim under the Vienna Convention at the
proper time, he will be barred by the procedural default rule from raising
the claim on appeal. Here again, however, as long as the defendant has
preserved his claim relating to the underlying injury, an injury to some
substantive nght such as a claim that he did not understand that he was
waiving his right to counsel in an interrogation that claim can be
addressed. As a result, an examination of the impact of the Article 36
violation on the trial and its fundamental fairness which is at the core
of review and reconsideration called for by LaGrandis fully available "
(CR2003/29, p 25, para 3 23, Philbin ) [p 123]
66 Yet, according to the evidence provided in the written and oral
proceedings, the United States courts, even after LaGratid, continue to
apply the procedural default rule in the same manner as its courts did in
the pre-LaGrand phase The reason submitted by the United States is that
"procedural default rules will possibly preclude such claim on direct appeal
or collateral review, unless the court finds there is cause for the default
and prejudice as a result of these alleged breaches" (CMUS, p 111, para 6
65) However, no court in the United States has found that "there is cause
for the default and prejudice" in cases of a Vienna Convention claim, under
the argument that Article 36 rights are not constitutional rights The
weakness and limitations of ordering a process of review and reconsideration
become evident when the results have proven to lack effectiveness
67. There is a need to define the nature of the obligations imposed by the
concept "by means of its own choosing". If the issue is not properly
clarified by the Court, the two Parties in the present case will not have a
sufficiently solid legal guideline on the adequate measures to be
undertaken in order to find the reparation sought by Mexico and in order to
comply with the remedy decided by the Court to relieve the United States of
its responsibility The settlement of this issue is necessary in order to
deal with the consequences that arise by virtue of an internationally
wrongful act The responsible State has the duty to make full reparation for
the injury caused by its wrongful act To dispel any potential
misunderstandings, there is a precedent that provides a guideline and that
can be invoked m order to ensure a clear definition. The Permanent Court of
International Justice found that there is a need to
"ensure recognition of a situation at law, once and for all and with binding
force as between the Parties; so that the legal position thus established
cannot again be called in question in so far as the legal effects ensuing
therefrom are concerned" (Interpretation of Judgments, Nos 7 and 8 (Factory
at Chorzow), Judgment No 11, 1927, PCI J, Series A, No 13, p 20).
68. Full reparation seems unlikely to be achieved if the ambiguity of the
notion of "by means of its own choosing" remains and is not strengthened
with the addition of some specific measures. From the existing evidence in
the pis-LaGrand and post-LaGrand periods, the United States has followed a
pattern of compliance with the Vienna Convention and the Court's Judgment
that is far from satisfactory To claim that a clemency procedure is a
sufficient instrument to carry out the obligations contained in the LaGrand
Judgment is to ignore the need for an adequate reparation As the Permanent
Court of International Justice found,
"the essential principle is that reparation must, as far as possible, wipe
out all the consequences of the illegal act and re-establish the [p
124]situation which would, in all probability, have existed if that act had
not been committed" (Factory at Chorzbw, Merits, Judgment No 13, 1928, PCIJ,
Series A, No 17, p 47)
69 The remedial action to be provided must determine how the laws and
regulations of the United States, introducing an element of effectiveness
that has to be mandatory and compulsive, will "enable full effect to be
given to the purposes for which the rights accorded under [Article 36] are
intended" The review and reconsideration of the conviction and sentence has
to take into account the breach of the rights set forth in the Convention
These rights should be considered as belonging to the category of
fundamental rights that impinge on due process of law If full effect is to
be given to the purposes of these rights, and if the review and
reconsideration has to take into account the nature of the violation of the
rights, then the margin in the application of the principle of "by means of
its own choosing" becomes far narrower The means must be effective and the
choosing has to be very selective
70 Mexico's request for a meaningful and effective review and
reconsideration of convictions and sentences finds support in the
Commentary to Article 35 contained in the International Law Commission's
Draft Articles on State Responsibility
"the term 'juridical restitution' is sometimes used where restitution
requires or involves the modification of a legal situation either within the
legal system of the responsible State or in its legal relations with the
injured State Such cases include the revocation, annulment or amendment of a
constitutional or legislative provision enacted in violation of a rule of
international law, the rescinding or reconsideration of an administrative or
judicial measure unlawfully adopted in respect of the person or property of
a foreigner " (A/56/10, p 240, para 5, emphasis added )
71 Under the assumption that the United States is in breach of an
international obligation, that Mexico suffered an injury for which a remedy
is sought, and that the United States cannot "rely on the provisions of its
internal law as justification for failure to comply with its obligations",
there are sufficient legal grounds to assume that if the procedural default
rule is perpetuated in the United States courts, then there is little future
for a meaningful and effective mechanism of judicial review and
reconsideration If this assumption remains valid, then it may be
indispensable for the Court to recover the concept of "juridical
restitution" invoked by the International Law Commission, which becomes
applicable when there is a need to modify a legal situation within the
legal system of the responsible State It is worth repeating juridical
restitution may [p 125]
"include the revocation, annulment or amendment of a constitutional or
legislative provision enacted in violation of a rule of international law,
the rescinding or reconsideration of an administrative or judicial measure
unlawfully adopted in respect of the person or property of a foreigner"
(A/56/10, p 240, para 5).
It may happen that the judicial measure, if found in breach of an
international obligation, has to be rescinded through legislative means
XII
72 In its final submission, Mexico requests the Court to adjudge that the
United States "shall cease its violations of Article 36 of the Vienna
Convention with regard to Mexico and its 52 nationals" Yet the Court found
that "Mexico has not established a continuing violation of Article 36 of the
Vienna Convention with respect to the 52 individuals" (Judgment, para 148)
But the continuing violation can be established by examining the cases
detailed in the Application of Mexico (paras 67-267) By consulting the
specific cases, it becomes clear that there are two elements in the
continuous breach of obligations by the United States
(a) from 1979 to 1999, that is to say during the 20 years considered in
Mexico's Application (in terms of the first arrest and the last arrest of
the 52 Mexican nationals included in the Application), there was no
compliance on the part of the competent authorities of the United States in
the fufilment of their Article 36 obligations That has already been decided
by the Court in the present case;
(b) m the post-LaGrand stage, United States courts continue to apply the
doctrine of procedural default. As the Court has stated, "a claim based on
the violation of Article 36, paragraph 1, of the Vienna Convention, however
meritorious m itself, could be barred in the courts of the United States by
the operation of the procedural default rule" (Judgment, para 133) The Court
in LaGrand had the opportunity to define the scope of the procedural default
doctrine:
"In itself, the rule does not violate Article 36 of the Vienna Convention
The problem arises when the procedural default rule does not allow the
detained individual to challenge a conviction and sentence by claiming that
the competent national authorities failed to comply with their obligation
to provide the requisite consular information 'without delay', thus
preventing the person from seeking and obtaining consular assistance from
the sending State." (LaGrand, Judgment, ICJ Reports 2001, p 497, para 90)
73 In the post-LaGrand phase, the process of review and reconsideration has
not meant the inapplicability of the procedural default doctrine [p 126]
If the Court has found that the United States is m breach of Article 36 of
the Vienna Convention, as it already has, it follows that a cessation of
such continuous violations is a proper measure in order to secure an end to
a continuing wrongful conduct.
74 According to the arguments submitted during the proceedings, there are
102 Mexican nationals that have been detained and charged with serious
felonies after the LaGrand Judgment was issued, without being notified of
their rights to consular notification and access In 46 of these 102 cases,
the United States effectively does not dispute the violation Six out of the
46 cases face the potential imposition of the death penalty
75 The United States provides a number of countervailing arguments but no
evidence to contradict the facts submitted by Mexico The arguments point
out that "the United States has demonstrated that its efforts to improve the
conveyance of information about consular notification are continuing
unabated and are achieving tangible results" It adds that
"Mexico would have the Court dictate to the United States that it cease
applying and also guarantee that it would in fact not apply a wide
variety of fully proper municipal legal doctrines and decisions, the
combined scope of which is staggering" (CMUS, paras 8.36 and 8 38)
76 The United States considers that the 102 cases or, for that matter,
the six cases submitted by Mexico are "isolated cases" But the issue is to
determine whether there is a continuity in the failure to comply with
Article 36 obligations by the United States. That seems to be the case The
United States may undertake a commitment "to ensure implementation of the
specific measures adopted in performance of its obligations under Article
36, paragraph 1, of the Convention" But the effectiveness of this
commitment is what is lacking Thus the need to establish the concrete
guidelines that should be followed by the United States. These guidelines
must comprise the obligation to cease an internationally wrongful act.
77 The International Law Commission (ILC), in Us Draft Articles on State
Responsibility, has introduced the catena governing the extension in time of
the breach of an international obligation. In its Commentary to Article 14,
paragraph 2, it indicates
"a continuing wrongful act, on the other hand, occupies the entire period
dunng which the act continues and remains not in conformity with the
international obligation, provided that the State is bound by the
international obligation during that period Examples of continuing wrongful
acts include the maintenance in effect of legislative provisions
incompatible with treaty obligations of the enacting State " (A/56/10, p
139, para 3.)
78. The Court has found, m a number of cases, the need to order the
cessation of an unlawful conduct Examples of these orders include the [p
127] case of Military and Paramilitary Activities in and against Nicaragua,
the case of United States Diplomatic and Consular Staff in Tehran, and the
Arrest Warrant case
In the Tehran case the Court decided unanimously that Iran "must immediately
terminate the unlawful detention of the United States Charge d'Affaires and
other diplomatic and consular staff " (United States Diplomatic and Consular
Staff in Tehran, Judgment, IC J Reports 1980, para 95).
The Court decided, in the Nicaragua case, that "the United States of America
is under a duty immediately to cease and to refrain from all such acts as
may constitute breaches of the foregoing legal obligation" (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v United States
of America), Merits, Judgment, I C J Reports 1986, p. 149, para 12)
In the Arrest Warrant case the Court found that: "the Kingdom of Belgium
must, by means of its own choosing, cancel the arrest warrant. " (Arrest
Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium),
Judgment, ICJ Reports 2002, p 33, para. 3)
79 The legal reasoning that compels the need for the cessation and
non-repetition of a breach of an international obligation is the continued
duty of performance To extend in time the performance of an illegal act
would frustrate the very nature and foundations of the rule of law. As the
ILC m Article 29 of its Draft Articles on State Responsibility indicates,
"The legal consequences of an international wrongful act do not affect the
continued duty of the responsible State to perform the obligation breached
" In the Commentary to this Article, the ILC states
"Even if the responsible State complies with its obligations under Part Two
to cease the wrongful conduct and to make full reparation for the injury
caused, it is not relieved thereby of the duty to perform the obligation
breached The continuing obligation to perform an international obligation,
notwithstanding a breach, underlies the concept of a continuing wrongful act
. and the obligation of cessation " (A/56/10, p 215, para 2)
80 To cease an illegal act and to offer appropriate assurances and
guarantees of non-repetition, if circumstances so require, is not a
discretionary matter the State responsible for an internationally wrongful
act is under an obligation to do precisely that, according to Article 30 of
the ILC Draft Articles on State Responsibility In its Commentary to this
Article, the ILC provides a useful consideration
"Where assurances and guarantees of non-repetition are sought by an injured
State, the question is essentially the reinforcement of a continuing legal
relationship and the focus is on the future, not the past " (A/56/10, p 221,
para 11) [p 128]
XIII
81 Mexico's claims are only partially answered in the present Judgment Some
of the holdings are more modest than the ones that are to be found in the
LaGrand Judgment Some even contradict the rulings of LaGrand The limited
legal reach provided in the present Judgment may not sufficiently serve the
purpose of establishing the grounds for reparations as a result of a
wrongful act and the breach of an international obligation The law of State
responsibility may not find in the present Judgment a source of further
development
(Signed) Bernardo SEPULVEDA
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