INTERNATIONAL COURTOFWSTICE
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[email protected]. Internet address: http://www.icj-cij.org.
Press Release
Unofficial
No. 2003/9
5 February 2003
Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America)
Provisional Measures
The Court indicates to the United States of America that it must take
"ali measures necessary" to prevent the execution of three Mexican nationals,
pending its final judgment
THE HAGUE, 5 February 2003. The International Court of Justice (ICJ), principal judicial
organ of the United Nations, today indicated to the United States of America that it must "take ali
measures necessary" to ensure that Mr. CésarRoberto Fierro Reyna, Mr. Roberto Moreno Ramos
and Mr. Osvaldo Torres Aguilera, of Mexican nationality, are not executed pending a final
judgment of the Court in the case concerning Avena and other Mexican nationals (Mexico v.
United States of America).
In its Order indicating provisional measures, which was adopted unanimously, the Court also
stated that the Govemmentof the United States of America shall inform it of ali measures taken in
implementation of that Order. It further decided to remain seised of the matters which form the
subject of the Order until it has rendered its finaljudgment.
Historyof the proceedings
Mexico filed its request for the indicationrovisional measures on 9 January 2003, the
same day that it initiated proceedings against the United States dispute concerning alieged
violations of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 Aprill963
with respect to 54 Mexican nationals who have been sentenced to death in certain states of the
United States. Mexico further askedof the Court that, pending final judgment in the case, the
United States should take ali measures necessary to ensure thatexican national be executed
and thatno execution dates be set for any Mexican national; that the United States report to the
Court the actions it has taken in that respect; and that it ensure that no actionthat might
prejudice the rights the United Mexican States or its nationals with respect to any decision this
Court may render on the merits of the case. At the hearings held on 21 January 2003, Mexico
confirmed its request for the indicationrovisional measures, while the United States asked the
Court to reject that request and not to indicate any such measures. - 2 -
Reasoning of the Court
The Court begins by considering whether it has jurisdiction prima facie (at first sight) to hear
the case, a prerequisite for the indication of provisional measures. It notes that Mexico and the
United States are both parties to the 1963 Vienna Convention on Consular Relations and to its
Optional Protocol concerning the Compulsory Settlement of Disputes, Article I of which provides
that "disputes arising out of the interpretation or application of the Convention shaHlie within the
compulsory jurisdiction of the International Court of Justice". The Court accordingly finds that it
has jurisdiction prima facie under this Article to hear the case.
The Court then turns to the Parties' arguments and finds that a dispute exists between them
regarding the remedies to be provided in cases of breaches by the United States of its obligations
under Article 36, paragraph 1, of the Vienna Convention. The Court accordingly concludes that it
must address the issue of whether, by indicating provisional measures, it should preserve any rights
which may subsequently be adjudged by it to belong to the Applicant orto the Respondent, without
being obliged at this stage of the proceedings to rule on those rights. It adds that the issues brought
before it "do not concern the entitlement of the federal states within the United States to resort to
the death penalty for the most heino us crimes"; that "the function of th[e] 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"; and that it
"may indicate provisional measures without infringing these principles". It accordingly rejects the
United States argument that, inter alia, the measures sought by Mexico would amount to "a
sweeping prohibition on capital punishment for Mexican nationals in the United States, regardless
of United States law", which "would drastically interfere with United States sovereign rights and
implicate important federalism interests" and transform the Court into a "general criminal court of
appeal".
The Court goes on to recall that provisional measures are only justified ifthere is urgency, "in
the sense that action prejudicial to the rights of either party is likely to be taken before a final
decision is given".
The Court adds that its jurisdiction is limited in the present case to the dispute between the
Parties concerning the interpretation and application of the Vienna Convention with regard to the
individuals which Mexico has identified as being victims of a violation of the Convention, and that
no provisional measure can be adopted in respect of other individuals.
The Court then stresses that the fact that no execution dates have been fixed in any of the
cases before it "is not perse a circumstance that should preclude [it] from indicating provisional
measures". It states that it is apparent from the information before it in the case that three Mexican
nationals, Messrs. César Roberto Fierro Reyna, Roberto Moreno Ramos and
Osvaldo Torres Aguilera, are at risk of execution in the coming months, or possibly even weeks,
and that "their execution would cause irreparable prejudice to any rights that may subsequently be
adjudged by the Court to belong to Mexico"; the Court accordingly concludes that "the
circumstances require that it indicate provisional measures to preserve those rights".
Asto the other individuals listed in Mexico's Application, the Court observes that "although
currently on death row, [they] are not in the same position as the three persons identified" earlier
and that it may, "if appropriate, indicate provisional measures ... in respect of those individuals
before it renders finaludgment" in the case.
In conclusion, the Court states that it is "clearly in the interest of both Parties that their
respective rights and obligations be determined definitively as early as possible", and that "it is
therefore appropriate that the Court, with the co-operation of the Parties, ensure that a final
judgment be reached with ali possible expedition". The President has immediately undertaken
consultations with the Parties for this purpose. - 3 -
Composition of the Court
The Court was composed as follows: President Guillaume; Vice-President Shi;
Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Registrar Couvreur.
Judge Oda appends a declaration to the Order.
A summary of the Order is given in Press Release No. 2003/9bis, to which a summary of the
declaration is annexed. The full text of the Judgment and declaration is available on the Court's
website (www.icj-cij.org).
Information Department:
Mr. Arthur Witteveen, First Secretary (+31 70 302 23 36)
Mrs. Laurence Blairon and Mr Boris Heim, Information Officers (+31 70 302 23 37)
E-mail address: [email protected]
Avena and other Mexican Nationals (Mexico v. United States of America) - Provisional Measures - The Court indicates to the United States of America that it must take "all measures necessary" to prevent the execution of three Mexican nationals, pending its final judgment