Public sitting held on Tuesday 16 December 2003, at 10 a.m., at the Peace Palace, President Shi presiding

CR 2003/26
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2003
Public sitting
held on Tuesday 16 December 2003, at 10 a.m., at the Peace Palace,
President Shi presiding,
in the case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America)
____________________
VERBATIM RECORD
____________________
ANNÉE 2003
Audience publique
tenue le mardi 16 décembre 2003, à 10 heures, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire Avena et autres ressortissants mexicains
(Mexique c. Etats-Unis d’Amérique)
________________
COMPTE RENDU
________________
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Present: President Shi
Vice-President Ranjeva
Judges Guillaume
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka
Judge ad hoc Sepúlveda
Registrar Couvreur
¾¾¾¾¾¾
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Présents : M. Shi, président
M. Ranjeva, vice-président
MM. Guillaume
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka, juges
M. Sepúlveda, juge ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
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The Government of the United Mexican States is represented by:
H.E. Mr. Juan Manuel Gómez-Robledo, Ambassador, Legal Adviser, Ministry of Foreign Affairs,
Mexico City,
H.E. Mr. Santiago Oñate, Ambassador of Mexico to the Kingdom of the Netherlands,
as Agents;
Mr. Pierre-Marie Dupuy, Professor of Public International Law at the University of Paris
(Panthéon-Assas) and at the European University Institute, Florence,
Mr. Donald Francis Donovan, Esq., Attorney at Law, Debevoise & Plimpton, New York,
Ms Sandra L. Babcock, Esq., Attorney at Law, Director of the Mexican Capital Legal Assistance
Programme;
Mr. Carlos Bernal, Attorney at Law, Noriega y Escobedo, and Chairman of the Commission on
International Law at the Mexican Bar Association, Mexico City,
Ms Katherine Birmingham Wilmore, Esq., Attorney at Law, Debevoise & Plimpton, London,
Mr. Dietmar Prager, Esq., Attorney at Law, Debevoise & Plimpton, New York,
Ms Socorro Flores Liera, Chief of Staff, Under-Secretariat for Global Affairs and Human Rights,
Ministry of Foreign Affairs, Mexico City,
Mr. Víctor Manuel Uribe Aviña, Head of the International Litigation Section, Legal Adviser’s
Office, Ministry of Foreign Affairs, Mexico City,
as Counsellors and Advocates;
Ms Maria del Refugio González Domínguez, Chief, Legal Co-ordination Unit, Ministry of Foreign
Affairs, Mexico City,
Mr. Erasmo A. Lara Cabrera, Head of the International Law Section, Legal Adviser’s Office,
Ministry of Foreign Affairs, Mexico City,
Ms Natalie Klein, Attorney at Law, Debevoise & Plimpton, New York,
Ms Catherine Amirfar, Esq., Attorney at Law, Debevoise & Plimpton, New York,
Mr. Thomas Bollyky, Esq., Attorney at Law, Debevoise & Plimpton, New York,
Ms Cristina Hoss, Research Fellow at the Max Planck Institute for Comparative Public Law and
International Law, Heidelberg,
Mr. Mark Warren, International Law Researcher, Ottawa,
as Advisers;
Mr. Michel L’Enfant, Debevoise & Plimpton, Paris,
as Assistant.
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Le Gouvernement des Etats-Unis du Mexique est représenté par :
S. Exc. M. Juan Manuel Gómez-Robledo, ambassadeur, conseiller juridique du ministère des
affaires étrangères, Mexico,
S. Exc. M. Santiago Oñate, ambassadeur du Mexique auprès du Royaume des Pays-Bas,
comme agents;
M. Pierre–Marie Dupuy, professeur de droit international public à l’Université de Paris II
(Panthéon-Assas) et à l’Institut universitaire européen de Florence,
M. Donald Francis Donovan, Esq., avocat au cabinet Debevoise & Plimpton, New York,
Mme Sandra L. Babcock, Esq., avocate, directrice du programme d’assistance juridique du
Mexique aux personnes encourant la peine de mort,
M. Carlos Bernal, avocat au cabinet Noriega y Escobedo, président de la Commission du droit
international de l’association du barreau mexicain, Mexico,
Mme Katherine Birmingham Wilmore, Esq., avocate au cabinet Debevoise & Plimpton, Londres,
M. Dietmar W. Prager, Esq., avocat au cabinet Debevoise & Plimpton, New York,
Mme Socorro Flores Liera, chef de cabinet, sous-secrétariat des affaires internationales et des
droits de l’homme du ministère des affaires étrangères, Mexico,
M. Víctor Manuel Uribe Aviña, chef du service du contentieux international au bureau du
conseiller juridique du ministère des affaires étrangères, Mexico,
comme conseils et avocats;
Mme Maria del Refugio González Domínguez, chef du service de coordination juridique du
ministère des affaires étrangères, Mexico,
M. Erasmo A. Lara Cabrera, chef du service du droit international au bureau du conseiller juridique
du ministère des affaires étrangères, Mexico,
Mme Natalie Klein, Esq., avocate au cabinet Debevoise & Plimpton, New York,
Mme Catherine Amirfar, Esq., avocate au cabinet Debevoise & Plimpton, New York,
M. Thomas Bollyky, Esq., avocat au cabinet Debevoise & Plimpton, New York,
Mme Cristina Hoss, assistante de recherche à l’Institut Max Plank pour le droit public comparé et
le droit international, Heidelberg,
M. Mark Warren, chercheur en droit international, Ottawa,
comme conseillers;
M. Michel L’Enfant, membre du cabinet Debevoise & Plimpton, Paris,
comme assistant.
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The Government of the United States of America is represented by:
The Honourable Mr. William H. Taft, IV, Legal Adviser, United States Department of State,
as Agent;
Mr. James H. Thessin, Principal Deputy Legal Adviser, United States Department of State,
as Co-Agent;
Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Department
of State,
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States
Department of State,
Mr. Patrick F. Philbin, Associate Deputy Attorney General, United States Department of Justice,
Mr. John Byron Sandage, Attorney-Adviser for United Nations Affairs, United States Department
of State,
Mr. Thomas Weigend, Professor of Law and Director of the Institute of Foreign and International
Criminal Law, University of Cologne,
Ms Elisabeth Zoller, Professor of Public Law, University of Paris II (Panthéon-Assas),
as Counsel and Advocates;
Mr. Jacob Katz Cogan, Attorney-Adviser for United Nations Affairs, United States Department of
State,
Ms Sara Criscitelli, Member of the Bar of the State of New York,
Mr. Robert J. Erickson, Principal Deputy Chief, Criminal Appellate Section, United States
Department of Justice,
Mr. Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, United States
Department of Justice,
Mr. Steven Hill, Attorney-Adviser for Economic and Business Affairs, United States Department
of State,
Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The Hague,
Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The Hague,
Mr. Peter W. Mason, Attorney-Adviser for Consular Affairs, United States Department of State,
as Counsel;
Ms Barbara Barrett-Spencer, United States Department of State,
Ms Marianne Hata, United States Department of State,
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Le Gouvernement des Etats-Unis d’Amérique est représenté par :
L’honorable William H. Taft IV, conseiller juridique du département d’Etat des Etats-Unis,
comme agent;
M. James H. Thessin, conseiller juridique adjoint principal du département d’Etat des Etats-Unis,
comme coagent;
Mme Catherine W. Brown, conseiller juridique adjoint chargé des affaires consulaires au
département d’Etat des Etats-Unis,
M. D. Stephen Mathias, conseiller juridique adjoint chargé des questions concernant les
Nations Unies au département d’Etat des Etats-Unis,
M. Patrick F. Philbin, vice-Attorney-General adjoint du département de la justice des Etats-Unis,
M. John Byron Sandage, avocat-conseiller chargé des questions concernant les Nations Unies du
département d’Etat des Etats-Unis,
M. Thomas Weigend, professeur de droit et directeur de l’Institut de droit pénal étranger et
international à l’Université de Cologne,
Mme Elisabeth Zoller, professeur de droit public à l’Université de Paris II (Panthéon-Assas),
comme conseils et avocats;
M. Jacob Katz Cogan, avocat-conseiller chargé des questions concernant les Nations Unies du
département d’Etat des Etats-Unis,
Mme Sara Criscitelli, membre du barreau de l’Etat de New York,
M. Robert J. Erickson, chef principal adjoint à la section des recours en matière pénale du
département de la justice des Etats-Unis,
M. Noel J. Francisco, conseiller juridique adjoint auprès de l’Attorney-General, bureau du
conseiller juridique du département de la justice des Etats-Unis,
M. Steven Hill, avocat-conseiller chargé des affaires économiques et commerciales du département
d’Etat des Etats-Unis,
M. Clifton M. Johnson, conseiller juridique à l’ambassade des Etats-Unis à La Haye,
M. David A. Kaye, conseiller juridique adjoint à l’ambassade des Etats-Unis à La Haye,
M. Peter W. Mason, avocat-conseiller chargé des affaires consulaires du département d’Etat des
Etats-Unis,
comme conseils;
Mme Barbara Barrett-Spencer, département d’Etat des Etats-Unis,
Mme Marianne Hata, département d’Etat des Etats-Unis,
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Ms Cecile Jouglet, United States Embassy, Paris,
Ms Joanne Nelligan, United States Department of State,
Ms Laura Romains, United States Embassy, The Hague,
as Administrative Staff.
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Mme Cecile Jouglet, ambassade des Etats-Unis à Paris,
Mme Joanne Nelligan, département d’Etat des Etats-Unis,
Mme Laura Romains, ambassade des Etats-Unis à La Haye,
comme personnel administratif.
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The PRESIDENT: Please be seated. The sitting is now open.
As scheduled, the Court will hear the first round of oral arguments for the United States of
America. I now give the floor to the Honourable Mr. William Taft, IV, the Agent of the United
States of America.
Mr. TAFT: Thank you, Mr. President.
I. INTRODUCTION
1.1. Mr. President, Members of the Court, learned counsel, I am honoured to appear before
the Court again as Agent of the United States. With me today are representatives of the United
States Departments of State and Justice. In addition, Professor Elisabeth Zoller of the University of
Paris II and Professor Thomas Weigend of the University of Cologne will be presenting argument
on our behalf.
1.2. Mr. President, this Court recently considered the Vienna Convention on Consular
Relations in the LaGrand case. The Court’s decision there stands for the principle that where there
has been a failure to provide consular information and notification as required by Article 36 (1) of
the Convention and a foreign national is subsequently convicted of a crime and sentenced to a
severe penalty, the State in breach should by means of its own choosing provide review and
reconsideration of the conviction and sentence, taking into account the breach.
1.3. The LaGrand Judgment broke new ground in two respects. First, the Court called for
the United States to take actions to implement its obligations under the Vienna Convention on
Consular Relations by reviewing and reconsidering the results of a criminal proceeding. This was
striking because no State party had previously understood that it was required to take account of a
failure to carry out its obligations under the treaty in the administration of its criminal laws. As far
as is known, with the possible exception of two isolated cases that did not turn directly on a failure
to comply with Article 36, no State had ever done so.
1.4. In a second respect the Court went even further. It undertook to direct a sovereign State
to include a specific new procedural step within its domestic legal system ¾ namely, a targeted
review and reconsideration of a criminal conviction and sentence in certain cases. In doing this the
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Court expressly left it to the United States to carry out this obligation in its domestic law by means
of its own choosing.
1.5. The United States has conformed its conduct to the Court’s interpretation of the treaty in
LaGrand. This has been possible only because the Court has left to us the choice of the proper
means. Moreover, the United States has conformed its conduct with respect not only to German
nationals, but with respect to all foreign nationals. There has been for us, in the words of
President Guillaume, no question of taking an a contrario interpretation of the holding in LaGrand
in cases involving defendants from other States, including Mexico.
1.6. The Court travelled a considerable distance in LaGrand; now, less than three years
later, Mexico asks it to go further, much further. In disregard of basic principles of State
sovereignty and the Convention’s specific object and purpose to regulate consular relations
between States, Mexico asks 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. Mexico asks the Court to find in this Convention a requirement that consular officers
may intervene in an ongoing criminal investigation, including in the interrogation process, and
participate in the foreign national’s defence like an attorney. With regard to remedies, Mexico
would have the Court intrude even more deeply into the United States criminal justice system.
Mexico asks the Court to decide that the Convention requires not review and reconsideration, as
LaGrand provided, but automatic exclusions of evidence and the voiding of convictions and
sentences in cases of breach. Mexico seeks a set of remedies given by no national court for a
breach of Article 36, and mandated by no State’s statutes.
1.7. In fact, the Convention sets out particular obligations and rights that are not nearly as
expansive as Mexico suggests. The obligations are to inform a detained person that his consular
officer will be notified of his detention if he so wishes and, if the detained person says that he does
wish it, to notify the consular officer of the detention. The sending State’s consular officer
thereafter may give assistance consistent with the domestic law of the receiving State.
1.8. Significantly, however, the Convention does not confer a right on the detained person to
any assistance from his consular officer. Nor may a detained person complain in the domestic
courts of the receiving State if he has not received consular assistance after requesting it.
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1.9. And since there is no obligation on the sending State to provide assistance either
promptly or at all, there cannot possibly be a rule requiring the receiving State to suspend its
investigation and the orderly operation of its criminal justice system until the consular officer
arrives. Such a rule would hold the administration of justice in receiving States hostage to the
calendars of consular officers. Mexico has identified not a single State party to the Convention that
applies such a rule, and its unprecedented claim that the Convention imposes such a requirement
must be rejected.
1.10. This case rests at the sensitive intersection between international legal obligations
regarding the conduct of consular relations, and a sovereign State’s domestic criminal law.
Mr. President, Members of the Court, this Court in LaGrand traversed that intersection carefully.
It left it to the United States to carry out its treaty obligation in its domestic criminal justice system
as it deemed appropriate ¾ by means of its own choosing.
1.11. The role of the Court in this case is to interpret the Convention. It has no authority to
create, revise, or implement a State’s domestic law. The line separating these functions is a sharp
one that the Court has always respected. When the Court fashions remedies for breaches of
international law, it does not attempt to penetrate the sovereignty of a State and itself reconfigure
State systems to meet the international obligation. Instead, it assumes that States, having
voluntarily undertaken the obligations contained in the treaty, may be counted on to carry them out.
This assumption concerning the bona fides of a sovereign State and its elected or appointed public
officials is, indeed, essential to the Court’s authority and the Court’s effectiveness.
1.12. Mr. President, Members of the Court, the facts of the 52 cases now before this Court
are many. Mexico’s presentation of these facts is often incomplete, and Mexico has generally
failed to carry its burden of proof to show a breach of the United States obligations under the
treaty. For the Court to determine the facts in each case, as Mexico asks it to do, it would have to
function as a court of first instance in some cases and as a court of criminal appeal in others ¾ a
role this Court has already wisely disclaimed. Even if it were to find that breaches have occurred
in some cases, however, the Court has already identified a remedy in LaGrand that is available in
each instance. The question for the Court here is whether there is any reason to go beyond what it
decided in LaGrand. There is not.
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1.13. Before the Court even reaches that question, however, it will need to determine
whether Mexico’s claims are within its jurisdiction. Yesterday, Mexico objected to the Court’s
consideration of the jurisdiction and admissibility arguments raised by the United States, citing a
recent amendment to Article 79 of the Rules of Court. The United States notes that it specifically
reserved its right to make jurisdictional arguments during the provisional measures proceedings in
this case1
. Following this, the Parties agreed to a single round of pleadings. Article 79 regulates
the filing of preliminary objections, that is, those “the decision upon which is requested before any
further proceedings on the merits”. The amendment to it was designed to accelerate the
proceedings of the Court where there are to be more than one round of pleadings2
. It was not
intended to change the schedule of pleadings in cases in which the parties have agreed, as here, to
proceed on the basis of a single round of pleadings3
.
1.14. In regard to jurisdiction and admissibility, Mexico’s submission greatly overreaches
this Court’s responsibilities under the Convention and Protocol. This is particularly striking in
connection with Mexico’s submissions seeking remedies. It asks the Court to order the United
States to apply specific rules of evidence in its criminal trials, to vacate criminal convictions and
sentences, and to conduct its law enforcement interrogations in a particular manner. Each of these
measures is beyond this Court’s competence.
1.15. Mexico’s claim is also, in significant respects, inadmissible. Mexico asks the Court to
hand down a final judgment under international law regarding cases that are still in active litigation
in the municipal criminal justice system, to reopen others and to dictate specific outcomes in those
cases. Mexico’s own courts and laws do not themselves offer foreign nations presenting claims of
breaches under the Convention these same remedies.
1.16. Even though the United States did not agree with the Court’s judgment in LaGrand, it
has conformed its conduct to that judgment. It has continued its extraordinary efforts to improve

1Avena, Provisional Measures, CR 2003/2 at 13 (“The United States does not propose to make an issue now of
whether the Court possesses prima facie jurisdiction, although this is without prejudice to its right to contest the Court’s
jurisdiction at the appropriate stage later in the case.”).
2Report of the International Court of Justice to the General Assembly, 1 August 2000-31 July 2001,
paras. 360-361 (“On 5 December 2000 the Court decided to amend two Articles of its 1978 Rules. Both concern
incidental proceedings . . . The amendments . . . aim at shortening the duration of these proceedings . . .”).
3
See The M. V. “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea) (Merits), International Tribunal for
the Law of the Sea, 1 July 1999, para. 53.
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compliance throughout the United States with the requirements of Article 36 (1), and it provides
review and reconsideration of convictions and sentences consistent with the Court’s interpretation
of Article 36 (2) in cases in which a breach of Article 36 (1) has occurred. We comply with
Article 36 (2) through the combined operations of our judicial and our executive clemency
proceedings.
1.17. Mexico has focused particularly critical attention on the clemency process in its
Memorial. The gist of Mexico’s complaint is that in most cases clemency is not granted. This is
true, but it in no way supports Mexico’s claim that convictions and sentences are not and cannot be
reviewed in the clemency process taking account of any treaty breach. They can be reviewed there,
and they have been reviewed there.
1.18. In its Memorial, Mexico maligns the elected governors and other officials who
administer the clemency process. These people perform their functions conscientiously and
according to law. In this connection, I would invite the Court’s specific attention to the case of
Gerardo Valdez Maltos, one of the cases that Mexico has highlighted in its attack on the clemency
process. The process in that case was thorough, careful, probing. The Mexican Agent himself
presented argument to the Governor and his staff. The Governor spoke directly with the Mexican
President. While the Governor did not grant clemency, both the parole board, which voted to
recommend clemency, and the Governor clearly took specific account of the Convention breach
and undertook the review and reconsideration described in LaGrand.
1.19. Mexico has also failed to provide the Court with any basis for concluding that our
judicial system does not provide fair trials to foreign nationals in accordance with the highest
standards of due process of law. That system too is capable of remedying the consequences of any
breaches of the Convention that have been properly raised, and both our trial and appellate courts
are required to assure that, in Judge Koroma’s words in his separate opinion in LaGrand, “the
judicial process must be fair and regular”.
1.20. Finally, the Court should not depart from the remedy it prescribed for breaches of
Article 36 in LaGrand ¾ review and reconsideration by means of the receiving State’s own
choosing. This remedy fully satisfies the purpose of reparations, providing a mechanism through
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which the situation may be established that would have existed absent the breach. It also strikes the
appropriate balance between the rights and interests of both States parties.
1.21. The Court should in no event grant the unprecedented and intrusive relief Mexico has
demanded ¾ the vacatur of convictions and sentences, the exclusion of probative evidence in
subsequent legal proceedings, orders of cessation and sweeping guarantees of non-repetition.
Mexico asserts that a pure form of restitutio in integrum should be applied by the Court. But, as
the Court is aware, restitution in this sense sought by Mexico is appropriate only in certain types of
situations, such as the return of property. This is not such a case. In addition, the remedy sought
by Mexico is not predicated on proof of prejudice and is divorced from any requirement of showing
that an injury has actually been caused by the breach of a treaty obligation. It finds no support in
the practice of any State.
1.22. 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. “Must be left.” 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. But if the
result is known, why review the cases at all?
1.23. This Court went far in LaGrand. Mexico says it didn’t go far enough. The United
States respectfully but vigorously urges that it go no further.
*
* *
1.24. Mr. President, Members of the Court, the course of our oral presentations today will be
as follows.
1.25. Professor Zoller will begin our presentation by addressing the subjects of jurisdiction
and admissibility. She will show that the Court does not have the competence to order the
unprecedented remedies that Mexico seeks.
1.26. Following Professor Zoller, we will take up the merits of Mexico’s case, which is
premised on a grossly distorted picture of the United States criminal justice system. Mr. Philbin of
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the United States Department of Justice will provide the Court with an accurate picture.
Specifically, he will show that the US assures fundamental fairness in its criminal process for US
citizens and foreign nationals alike. Consular assistance is important and welcome, but even if it is
not provided, US courts assure that foreign national defendants in a criminal case receive all the
procedural and substantive rights Mexico says consular assistance is intended to protect. These are
the same protections accorded to our own nationals. They have set the standard for fairness the
world over for many years.
1.27. Mr. Sandage of the United States Department of State will then address Mexico’s
failure to carry its burden of proof in establishing facts that are essential to its case, both with
respect to the 52 cases and with respect to Mexico’s sweeping and unfounded allegations of
systematic violations of Article 36. He will show that the findings Mexico proposes to the Court
are unsupported by reliable evidence.
1.28. Ms Brown of the United States Department of State will speak next and be followed by
Mr. Mathias, also of the State Department. Together, Ms Brown and Mr. Mathias will explain the
meaning of Article 36 in light of the Vienna Convention’s object and purpose. Mexico’s
presentation yesterday left the impression that the Convention was intended to regulate the
treatment of foreign nationals in the criminal justice systems of the receiving State. In fact, the
Convention was intended to facilitate the activity of the consul within the existing State systems of
criminal justice, not to change those systems.
1.29. In the afternoon session, our presentations will focus on remedies.
1.30. First Mr. Thessin will describe the ways in which US courts and the executive
clemency process combine to allow the review and reconsideration of convictions and sentences as
called for in LaGrand.
1.31. Professor Weigend will review the remedies Mexico has proposed to the Court and
show that they are generally inconsistent with the operation of national criminal justice systems of
the States parties to the Convention.
1.32. Following Professor Weigend, the Court will again hear from Professor Zoller. She
will consider specifically Mexico’s request for a remedy of restitutio in integrum. Mexico has
misunderstood both the circumstances in which this remedy is properly applied and its purposes.
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Professor Zoller will also address the proper understanding of the concept of review and
reconsideration.
1.33. Finally, Mr. Mathias will discuss the remedy the Court ordered in LaGrand and show
that “review and reconsideration” by means of the receiving State’s own choosing is both an
appropriate remedy and sufficient to cure any breach of treaty obligations that may occur in future
or may have occurred in the cases before the Court here.
1.34. I will briefly introduce the afternoon session and conclude our oral presentation this
evening.
1.35. Thank you, Mr. President, I ask that you now call on Professor Zoller.
The PRESIDENT: Thank you, Mr. Taft. I now give the floor to Professor Zoller.
Mme ZOLLER :
II. COMPETENCE ET RECEVABILITE
Monsieur le président, Madame et Messieurs les juges,
2.1. La présente affaire interpelle notre conscience sur «la puissance de juger, si terrible
parmi les hommes» dont parlait Montesquieu. Mais elle l’interpelle à travers le règlement d’un
différend entre Etats. C’est à ce différend que la Cour doit exclusivement s’intéresser comme
l’exige l’article 38, alinéa 1, de son Statut, et c’est sur ce différend que les Etats-Unis m’ont donné
l’insigne honneur de parler devant elle.
2.2. Le différend entre les deux Etats porte sur les conséquences d’un présumé manquement
par les Etats-Unis à l’article 36, paragraphe 1, alinéa b), de la convention de Vienne sur les
relations consulaires dans l’interprétation que la Cour en a fait dans l’arrêt LaGrand. Dans cette
affaire, la Cour a jugé que lorsque des ressortissants d’un Etat partie sont condamnés à des peines
sévères sans que les droits qu’ils tiennent de la disposition précitée, aient été respectés, l’Etat de
résidence doit permettre «en mettant en œuvre les moyens de [son] choix, … le réexamen et la
revision du verdict de culpabilité et de la peine en tenant compte de la violation des droits prévus
par la convention».
2.3. Bien avant le jugement LaGrand, le Gouvernement fédéral des Etats-Unis avait déployé
auprès des cinquante Etats fédérés de l’Union d’extraordinaires efforts pour mettre en œuvre et
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faire appliquer les obligations internationales qui découlent de la convention de Vienne. Depuis
l’arrêt LaGrand, il n’a cessé de redoubler ses efforts pour former et instruire la police, les
procureurs et les juges sur l’importance des obligations de notification consulaire dans toutes les
procédures pénales concernant les détenus de nationalité étrangère. De plus, il est intervenu auprès
des Etats pour faire en sorte qu’en cas de manquements à la convention, leurs autorités compétentes
mettent dans la balance de tous les éléments qui contribuent à former la décision sur un recours en
grâce, le fait que le condamné n’ait pas bénéficié d’une assistance consulaire au début de la
procédure et, depuis l’arrêt LaGrand, il n’est pas une affaire qui n’ait fait l’objet des mesures de
réexamen et de revision énoncées dans cet arrêt.
2.4. La difficulté est que le Mexique ne se satisfait point de ces efforts. Il ne veut pas des
mesures de réexamen et de revision que les Etats-Unis ont déjà prises et continuent de mettre en
œuvre avec les pouvoirs qui sont les leurs. Il veut remonter l’horloge dix, voire vingt ans en arrière
et il vous demande de condamner les Etats-Unis à refaire tous les procès.
2.5. Monsieur le président, de telles prétentions ne peuvent être que rejetées. Outre le fait
que la demande du Mexique est irrecevable, les Etats-Unis estiment, d’abord et en tout premier
lieu, que la Cour n’a pas compétence pour satisfaire la demande en justice du Mexique. Je parlerai
d’abord de l’incompétence de la Cour.
*
* *
1. Incompétence de la Cour
2.6. L’objet de la demande en justice du Mexique est d’inviter la Cour à excéder ses
pouvoirs juridictionnels. Ce que le Mexique demande à la Cour, ce n’est pas de dire le droit
¾ que, de toute façon, elle a déjà dit dans l’arrêt LaGrand ¾; ce n’est pas non plus de réparer par
équivalent un dommage qui ne peut pas être réparé en nature, le demandeur ne formulant pas,
même à titre subsidiaire, de demande en indemnité. Ce que le Mexique demande à la Cour dans les
conclusions de son mémoire, c’est de «dire et juger» que les Etats-Unis ont l’obligation :
1) «d’annuler les déclarations de culpabilité et les condamnations prononcées», et 2) «de prendre
- 19 -
toutes mesures nécessaires sur les plans législatif, exécutif et judiciaire» pour écarter l’application
de règles de droit interne, procédurales et de fond. Les Etats-Unis contestent la compétence de la
Cour pour leur imposer l’une ou l’autre de ces obligations dans la présente instance.
A. S’agissant des prétendus pouvoirs de la Cour d’ordonner aux Etats-Unis de déclarer la
nullité des jugements et verdicts rendus conformément à leur droit pénal interne
2.7. Les Etats-Unis contestent la compétence de la Cour pour déclarer la nullité de jugements
et de verdicts rendus conformément au droit pénal interne, fédéral et fédéré, des Etats-Unis. Ils ne
cherchent ni à «faire peur» ni à «intimider» la Cour. Les Etats-Unis entendent seulement rappeler
qu’il n’existe ni dans le droit conventionnel ni dans le droit général une quelconque base juridique
qui serait de nature à fonder cette compétence que le Mexique semble considérer comme allant de
soi.
2.8. En premier lieu, aucune disposition de la convention de Vienne sur les relations
consulaires ne permet de porter devant la Cour le type de demande en justice que le Mexique lui
soumet. La relation qui unit les jugements contestés à la convention de Vienne est des plus faibles,
si ce n’est inexistante. De plus, aucune disposition de ce texte ne permet d’envisager qu’il ait été
dans l’intention des parties au protocole facultatif de signature à la convention de faire venir devant
la Cour les jugements de leurs cours et tribunaux.
2.9. En second lieu, aucune disposition du Statut de la Cour ne l’autorise à devenir juge
d’appel ou juge de cassation des jugements rendus par les cours souveraines des Etats parties au
Statut. Le Mexique se défend de vouloir faire de la Cour un juge d’appel ou de cassation. Mais
c’est vers ses conclusions qu’il faut se tourner pour mesurer que c’est bien là ce qu’il demande à la
Cour. Encore une fois, le Mexique demande à la Cour d’ordonner l’annulation de condamnations
et de verdicts rendus par des cours pénales internes. Or, c’est le rôle de ces cours de se prononcer
sur la culpabilité des accusés et de fixer la nature de la peine encourue et ce n’est pas celui de la
Cour que de devenir juge de l’excès de pouvoir des décisions qu’elles rendent. S’il devait en aller
autrement, la Cour ne serait plus juge de droit international; elle deviendrait une cour de droit
interne, ce qui constituerait une dénaturation complète de sa place dans le système des
Nations Unies. Il faut bien comprendre qu’en lui demandant de prononcer la nullité de jugements
rendus par des cours des Etats-Unis, le Mexique invite la Cour à intervenir dans «des affaires qui
- 20 -
relèvent essentiellement de la compétence nationale d’un Etat» en violation de l’article 2,
paragraphe 7, de la Charte des Nations Unies. Il l’invite à devenir la cour suprême d’un Etat
mondial en violation absolue de ce que la Cour avait dit de l’Organisation des Nations Unies4
dont
elle reste un des «organes principaux» aux termes de l’article 7, paragraphe 1, et «l’organe
judiciaire principal» aux termes de l’article 92 de la Charte. Bien mieux, à la lumière de l’analyse
que le professeur Weigend fera cet après-midi, le Mexique cherche même à faire de la Cour une
super Cour suprême des Etats-Unis dans la mesure où il lui demande d’imposer aux Etats-Unis des
obligations qui sont propres au système américain de justice criminelle et qui ne pourraient pas être
appliquées dans de nombreux systèmes juridiques des Etats parties à la convention.
B. S’agissant du pouvoir de la Cour d’enjoindre aux Etats d’adopter un comportement
requis
2.10. Les Etats-Unis ont reconnu que la Cour peut avoir, dans les limites du droit
international et dans certaines circonstances, le pouvoir d’enjoindre aux Etats d’adopter le
comportement requis par le droit international. Les Etats-Unis rappellent qu’en 1980, ils en ont
eux-mêmes tiré avantage lorsque, dans l’affaire de leur personnel diplomatique et consulaire à
Téhéran, ils ont obtenu de la Cour un arrêt qui ordonnait à l’Iran de «faire cesser immédiatement»
les actes illicites qui lui étaient imputables5
. Mais ¾ et c’est toute la différence avec la présente
affaire ¾ il s’agissait alors d’ordonner à l’Etat l’exécution d’une obligation internationale dont il
était tenu, purement et simplement, ne disposant en aucune manière de pouvoir discrétionnaire pour
l’exécuter. Sa compétence était, comme l’on dit en français, «liée», liée par le droit international
objectif.
2.11. Monsieur le président, lorsque la compétence de l’Etat est, comme dans l’affaire des
otages américains à Téhéran liée par le droit international objectif, c’est-à-dire lorsqu’il existe une
manière et une seule pour l’Etat de se conformer à ses obligations internationales, il est bien
naturel, il est même normal que la Cour ait le pouvoir d’enjoindre aux Etats d’adopter le
comportement requis par le droit international. Ne l’eût-elle pas qu’elle ne pourrait pas remplir sa

4
Voir l’avis consultatif, Réparation des dommages subis au service des Nations Unies, dans lequel la Cour a dit
que l’Organisation n’est pas «un «super-Etat», quel que soit le sens de cette expression», C.I.J. Recueil 1949, p. 179.
5 C.I.J. Recueil 1980, p. 44.
- 21 -
mission puisque à défaut, elle ne pourrait pas indiquer aux parties les moyens de sortir d’un
différend et d’y mettre fin.
2.12. En revanche, lorsque la compétence de l’Etat est discrétionnaire, lorsque l’Etat dispose,
comme la Cour l’a reconnu dans l’affaire LaGrand, du pouvoir de satisfaire à ses obligations
internationales «en mettant en œuvre les moyens de [son] choix», les pouvoirs de direction de la
Cour ne peuvent plus être les mêmes. Lorsque la Cour fixe un résultat à atteindre comme, par
exemple, le «réexamen et la revision» des verdicts dans l’affaire LaGrand, il appartient à l’Etat
d’atteindre le résultat indiqué en mettant en œuvre les moyens de son choix.
2.13. Si l’Etat a, de l’arrêt même de la Cour, «le libre choix des moyens», on ne voit pas que
la Cour puisse, sans se déjuger, lui enjoindre, comme le voudrait le Mexique, «de prendre toutes
mesures nécessaires sur les plans législatif, exécutif et judiciaire» pour écarter l’application de
règles de droit interne, procédurales et de fond. Dans des circonstances de ce genre, la Cour n’a
aucune compétence pour ordonner à un Etat de légiférer, d’exécuter la loi ou de juger dans tel ou
tel sens. La Cour n’a pas compétence pour obliger un Etat à modifier des règles de procédures.
Plus précisément, à propos de la règle dite de la carence procédurale, la Cour n’a pas compétence
pour obliger les Etats-Unis à donner un caractère d’ordre public à un moyen soulevé par les
plaideurs devant les juges internes, ce qui permettrait à ce moyen d’être invoqué à n’importe quel
stade de la procédure. Une fois encore, de telles demandes aboutissent à dénaturer complètement
le système des Nations Unies. Le Mexique demande à la Cour ce que l’on demande à un juge de
droit interne. Mais la Cour est incompétente pour condamner un Etat à agir d’une certaine manière
quand il est parfaitement licite d’agir d’une autre. L’exécution forcée par la voie judiciaire, ce que
les juristes de common law connaissent sous le nom de specific performance, n’a pas sa place en
droit international public.
2.14. Par ces motifs, les Etats-Unis demandent à la Cour de dire et juger qu’elle n’a pas
compétence pour leur ordonner d’annuler les jugements et verdicts rendus par leurs cours d’Etat et
leurs cours fédérales et pour leur ordonner de prendre toutes mesures nécessaires sur les plans
législatif, exécutif et judiciaire pour appliquer la jurisprudence LaGrand.
- 22 -
2. Irrecevabilité de la demande du Mexique
2.15. La demande du Mexique est irrecevable à plusieurs chefs qui ont été développés dans
le mémoire en défense des Etats-Unis. Le plus important de tous est la précipitation avec laquelle
le Mexique a agi dans cette affaire. La règle de l’épuisement des voies de recours internes n’est
pas satisfaite.
2.16. Le Mexique soumet à la Cour cinquante-deux affaires dont, à l’exception de trois
d’entre elles où les condamnations à mort ont été écartées, aucune n’est terminée; toutes les autres
sont en cours; mieux encore, un grand nombre d’entre elles en sont seulement à leur premier
recours en appel.
2.17. Les voies de recours internes ne sont donc manifestement pas épuisées. Or, comme la
Cour l’a dit par la voix de la Chambre constituée en l’affaire Elettronica Sicula S.p.A (ELSI) :
«[P]our qu’une demande internationale soit recevable, il suffit qu’on ait soumis la substance de la
demande aux juridictions compétentes et qu’on ait persévéré aussi loin que le permettent les lois et
les procédures locales, et ce sans succès.»6
On est loin dans ces affaires d’avoir persévéré aussi
loin que les lois des Etats-Unis le permettent.
2.18. Pour le Mexique, toutefois, point n’est besoin d’attendre. Attendre ne sert à rien car,
selon lui, les moyens choisis par les autorités fédérales et fédérées des Etats-Unis pour assurer le
réexamen et la révision des verdicts sont inefficaces.
2.19. La charge de l’inefficacité vise, en premier lieu, le fait que, lorsque le moyen tiré de
l’absence de notification consulaire est soulevé en première instance, le juge ni ne déclare
irrecevables les déclarations faites par l’accusé dans de telles conditions, ni n’accorde d’autre
réparation adéquate. Mais ce fait ne prouve nullement que le moyen soit inefficace; il prouve
seulement que le moyen est inopérant à produire le résultat recherché par le Mexique.
2.20. La charge de l’inefficacité vise, en second lieu, l’irrecevabilité de moyens nouveaux en
appel qui frappe le moyen tiré du défaut de notification consulaire. Si l’inculpé et son conseil ne
soulèvent pas en première instance l’irrégularité qui peut résulter de l’absence de notification de la
poursuite à l’autorité consulaire, ils sont irrecevables à exciper de ce moyen plus tard en appel. Le
Mexique prétend que cette règle de procédure prive ipso facto de toute efficacité l’épuisement des

6 C.I.J. Recueil 1989, p. 46, par. 59.
- 23 -
voies de recours internes. Pour que cette conclusion fût fondée, encore aurait-il fallu au moins
démontrer que, sans elle, les condamnations prononcées auraient été différentes. Mais le Mexique
ne peut pas rapporter cette preuve pour l’une quelconque des affaires qu’il soumet à la Cour. Il
procède par généralisations, ce qui est une façon bien sommaire de juger des procédures de
réexamen et de révision ouvertes aux condamnés.
2.21. La charge de l’inefficacité vise, en troisième lieu, les procédures de recours en grâce
sur lesquels statuent les gouverneurs des Etats concernés, le plus souvent avec l’assistance de
commissions consultatives. Le Mexique estime ces procédés d’une inefficacité totale. De fait, ils
le sont si l’on admet, comme le Mexique le prétend, que le test de la parfaite efficacité est de
déboucher dans tous les cas sur une commutation de la peine capitale en réclusion criminelle à
perpétuité. Mais, pour que de telles conclusions fussent fondées, il faudrait accepter le présupposé
auquel s’adosse la demande du Mexique, à savoir que la condamnation à la peine capitale en temps
de paix enfreint le droit international général. De quelque côté que l’on prenne la question, le droit
international positif ne ratifie pas les aspirations du demandeur. Les procédés de recours en grâce
prévus par le droit américain ne peuvent donc pas être ipso facto qualifiées d’arbitraires.
2.22. Aux termes des lois applicables dans les Etats concernés, chaque ressortissant mexicain
impliqué dans la présente affaire dispose du droit de déposer un recours en grâce et du droit à ce
que soit examiné son grief relatif à la violation présumée par les Etats-Unis de leurs obligations aux
termes de la convention. Dans son mémoire comme dans ses plaidoiries, le Mexique a longuement
insisté sur le caractère arbitraire de ces procédures. Toutefois, à l’exception de trois ressortissants
mexicains qui ont été déjà graciés, aucun autre parmi les cinquante-deux restants dans la présente
affaire n’a encore formé un recours en grâce. Dans ces conditions, le Mexique n’a aucune base de
fait ou de droit pour prouver ses allégations. Aussi graves soient-elles, ses allégations demeurent
non vérifiées. Il y a plusieurs raisons de douter de leur véracité. Car, sur les sept cas de
condamnations à la peine capitale prononcées après l’arrêt LaGrand et en violation présumée de la
convention de Vienne, six ont été commuées.
2.23. En quatrième lieu, la requête du Mexique est irrecevable en ce que le demandeur
accuse les Etats-Unis de violation présumée de la convention de Vienne dont il était averti depuis
très longtemps, mais sur lesquelles il a manqué d’attirer l’attention du gouvernement fédéral en
- 24 -
temps utile ou ne l’a fait qu’avec un retard considérable. Ce faisant, il faut admettre que le
Mexique a renoncé tant à se prévaloir de son droit à contester lesdites violations qu’à en demander
réparation7
. En tout état de cause, le Mexique n’a pas attiré l’attention des Etats-Unis
immédiatement, de telle manière que ceux-ci auraient pu agir. C’est peut-être parce que, à
l’époque où il en eut connaissance, le Mexique ne pensait pas que de telles violations seraient de
nature à lui accorder les réparations auxquelles il prétend aujourd’hui.
2.24. Enfin et en cinquième lieu, la requête du Mexique est irrecevable dans la mesure où le
demandeur ne saurait être fondé à exiger du défendeur qu’il respecte des règles de comportement
qu’il ne respecte pas lui-même. Le Mexique est irrecevable à exiger des Etats-Unis qu’ils
appliquent des standards qu’il n’applique pas dans son propre droit interne. En effet, non
seulement le droit pénal mexicain ne contient pas les règles réparatrices que le Mexique veut
imposer aux Etats-Unis mais encore ses autorités ne respectent pas elles-mêmes les obligations
qu’ils exigent des Etats-Unis. En la circonstance, la Cour doit reconnaître qu’elle est utilisée par le
Mexique dans un combat politique ¾ et elle ne doit pas céder à ces pressions.
2.25. Par ces motifs, les Etats-Unis demandent à la Cour de déclarer irrecevables les
demandes du Mexique, ses ressortissants n’ayant pas épuisé les procédures de réexamen et de
revision existantes dans le droit des Etats-Unis.
2.26. Je vous prie, Monsieur le président, de bien vouloir donner la parole à M. Philbin.
The PRESIDENT: Thank you, Professor Zoller. I now give the floor to Mr. Philbin.
Mr. PHILBIN:
III. THE US CRIMINAL JUSTICE SYSTEM PROVIDES GUARANTEES TO ENSURE
A FAIR TRIAL FOR EVERY DEFENDANT, REGARDLESS OF NATIONALITY,
WITHOUT RELYING ON CONSULAR ASSISTANCE
3.1. Mr. President, distinguished Members of the Court, it is an honour to appear before you
on behalf of the United States. As a representative of the United States Department of Justice, I am

7
Voir l’affaire de l’Indemnité russe (Russie c. Turquie) (Accord du 22 juillet–4 août 1910), UNRIAA, vol. 11,
p. 431, 444–446 (1912) (à propos de la perte du droit du demandeur d’invoquer l’illicéité d’un acte); affaire Savarkar
(France c. Royaume-Uni) (Accord du 25 octobre 1910), UNRIAA, vol. 11, p. 252, 255 (à propos d’un demandeur qui a
consenti à l’acte illicite).
- 25 -
particularly pleased to have the opportunity to present an overview of the United States criminal
justice system.
3.2. In its Memorial, Mexico has, unfortunately, presented an inaccurate and distorted
account of that justice system. That account was intended to show that a Mexican national cannot
possibly receive a fair trial in the United States without consular assistance. According to Mexico,
this is because Mexican nationals face language and cultural barriers that make them unable to
understand statements explaining their rights; because they cannot obtain investigative and expert
assistance or evidence located abroad; and because their court-appointed lawyers are inadequate
and their court-provided interpreters are incompetent. Similarly, Mexico’s representatives
yesterday sought to present the Court with anecdotal evidence from their own experience in other
cases to suggest that the assistance of consular officials is indispensable for a fair trial.
3.3. Today, I will show you that Mexico’s picture of the American criminal justice system is
wrong. I will do so by walking through the essential events in a criminal proceeding, focusing on
the issues that Mexico says its consular officers would focus on. And I will illustrate my points
using the facts of the very cases that Mexico has brought before the Court. For further information
about our system, which is complex and would require many hours to describe fully, I refer the
Court to the description submitted as Annex 7 to the Counter-Memorial.
A. The criminal justice system could not, as a practical matter,
rely on consular assistance to ensure fairness
3.4. Let me preface this discussion with our full acknowledgment that the interests that
Mexico asserts in seeing that its nationals receive fair treatment in the criminal justice system are
completely legitimate. However, the truth is that, like every State, the United States must provide a
fair trial to every defendant, regardless of his nationality and regardless of whether he has the good
fortune to receive consular assistance. As a practical matter, moreover, it would be wholly
unreasonable to assume that non-US citizens will routinely receive consular assistance ¾ given the
fact that neither the Convention nor international law requires that consular officers assist their
nationals, and the reality that resource constraints can severely limit the actual assistance consular
officers provide. Many nations, we remind the Court, maintain only a limited number of consular
officers in the United States, often located only in Washington, D.C. With millions of foreign
- 26 -
nationals in the United States, and a significant number arrested each year, even with perfect
provision of consular information and notification, many persons would receive no consular
assistance whatsoever. Our justice system thus could not, and does not rely on consular assistance
as the guarantor of fairness to non-US nationals.
3.5. In saying that, I am not disparaging the efforts of consular officers, or suggesting that
compliance with Article 36 is not important. But at the same time one must acknowledge the
realities that result from the numbers of foreign-national defendants involved in the criminal justice
systems across the United States, the consular resources available to assist them, and the fact that
the Convention leaves it solely to the discretion of the sending State whether to provide assistance
at all.
B. The criminal justice system already provides full guarantees to secure all rights
Mexico claims its consular officials are needed to protect
3.6. As I said, our Constitution and laws are expressly designed to ensure fair trials to all
persons regardless of nationality. Let me now turn to showing the Court how we do that.
1. Rights in custodial interrogations ¾ Miranda warnings
3.7. Generally speaking, the criminal process against a person will begin when the person is
arrested. The United States criminal justice system, like many legal systems, bars the use of
coerced confessions. To protect against the possibility of coercion, our law provides that a person
taken into custody in the United States cannot be questioned unless the authorities first give him
what are colloquially known as Miranda warnings explaining his rights. The standard text of these
warnings as given by the FBI is in the judges’ book at tab 1. It provides as follows:
¾ Before we ask you any questions, you must understand your rights.
¾ You have the right to remain silent.
¾ Anything you say can be used against you in court.
¾ You have the right to talk to a lawyer for advice before we ask you any questions.
¾ You have the right to have a lawyer with you during questioning.
¾ If you cannot afford a lawyer, one will be appointed for you before any questioning if you
wish.
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¾ If you decide to answer questions now without a lawyer present, you have the right to stop
answering at any time8
.
3.8. Questioning may not continue if the person says either (1) that he does not understand
these Miranda warnings, or (2) that he does not want to speak to the police. If the person asks for a
lawyer, questioning must stop unless and until his lawyer is present. If questioning does continue
despite the person’s invocation of his rights, no statements the person gives can be introduced in
the prosecution’s case against the person at trial.
3.9. Mexico acknowledges the requirement of Miranda but asserts that the warnings are
difficult to understand and do not adequately convey to Mexican nationals the substance of the
rights to silence and to an attorney. Mexico contends that the person needs a consular officer at his
side to explain the import of Miranda. An expert opinion that Mexico offers cites studies that
conclude, among other things, that even US–born defendants without some college education
cannot fully understand the Miranda warnings, that Mexican nationals and other Spanish-speaking
defendants generally do not comprehend them, and that translations are commonly inadequate.
3.10. To our knowledge, no judge in the United States has accepted such conclusions. Not
one judge has agreed with the view that the Miranda litany is too complicated for foreign nationals,
or even all but the well-educated native-born American defendant, to comprehend. Rather, our
courts uniformly have recognized that the clear and simple Miranda warnings I just recited are
fully sufficient to notify a defendant of his rights. Nor is there any evidence that Spanish
translations of Miranda warnings are routinely deficient.
3.11. But more importantly for this proceeding, the varying facts of the 52 cases that are now
before the Court in themselves show the effectiveness of Miranda warnings. The variety of
responses in the cases illustrates that Mexican nationals did not confess because they felt coerced.
Instead, the responses show that these defendants were fully capable of understanding these
warnings and asserting their rights without the presence of a consular officer.
3.12. We can set aside three of the cases at the outset. In these, the defendants gave
voluntary statements before they were detained or during the administrative booking process and

8This is the verbatim text of Miranda warnings appearing on the form used by the Federal Bureau of
Investigation.
- 28 -
thus the cases did not involve custodial questioning9
. Of the remaining 49 cases, 17 defendants ¾
more than one-third ¾ apparently declined to answer questions or make statements10. Within that
group are persons who came to the United States as adults, who did not speak fluent English, or
who were not well-educated ¾ precisely the people Mexico categorically claims are unable to
understand the Miranda warnings11. This group includes, for example, Hector Garcia Torres, case
No. 32, who despite having had only three years of schooling in Mexico understood his Miranda
warnings well enough not to give a statement. Of the remaining 33 defendants, nine denied
criminal responsibility altogether12; and four confessed but gave exculpatory explanations13. In
sum, only about one-third of the defendants in the cases Mexico raises fully confessed their guilt.
This appears to be consistent with the confession rates for all arrested persons in the United
States14
.
3.13. Nor can it be assumed that each of the 20 defendants who fully confessed, and each of
the four defendants who confessed in part, did so because he succumbed to coercion or, without a
consular officer to advise him, was unable to appreciate the consequences of making a statement.
Numerous criminal defendants, citizens and non-citizens alike, confess though not compelled to do
so, fully understanding their rights and voluntarily choosing not to exercise them. We would cite
the confession, for example, of defendant Salcido Bojorquez, case No. 22, who gave his statement
before a Mexican judge. Similarly, defendant Perez Gutierrez, case No. 51, stated repeatedly
during his recorded confession that he felt better for having confessed. Neither of these men was
coerced and neither misunderstood the consequences of making a confession. They confessed
because, as each expressly stated, they felt remorse for their terrible crimes. Underlying Mexico’s
argument is the unstated assumption that any time an individual confesses the protections of the
criminal justice system must have failed and the individual must not have understood his rights.

9Cases Nos. 8, 36, and 51.
10Cases Nos. 2, 4, 5, 7, 9, 12, 13, 15, 16, 21, 29, 32, 35, 37, 42, 48, and 53.
11Cases Nos. 9, 12, 15, 32, 35, 37, 42, and 48.
12Cases Nos. 18, 19, 20, 25, 26, 30, 39, 43, and 46.
13Cases No. 24, 38, 41, 42.
14E.g. Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda’s Defenders, 90 NWL Rev. 1084,
1092 (1996); Mandy DeFilippo, You Have the Right to Better Safeguards: Looking Beyond Miranda in the New
Millenium, 34 J. Marshall L. Rev. 637 (Spring 2001).
- 29 -
But that is not an assumption that the law can permit. As the Supreme Court of the United States
has explained, it is only coerced confessions that the law forbids; voluntary and reliable
confessions “far from being prohibited . . . are inherently desirable”15. Indeed, “they are essential
to society’s compelling interest in finding, convicting, and punishing those who violate the law.”16
3.14. Finally, of course, if a detained foreign national did not comprehend the Miranda
warnings, on account of language or other deficiencies and, because of his misunderstanding,
inadvertently waived his rights, he can move to exclude his statement from evidence in his criminal
case. As Professor Weigend will explain, the US system is unusual in the extent to which it
excludes statements at trial. Merely because a defendant later says that his confession was coerced,
however, does not make it so. When a defendant makes such a motion, the trial court examines in
detail the circumstances surrounding the giving of the statement and makes an independent
determination whether the Miranda warnings were given and whether they were sufficient, whether
the person understood them, and whether the person invoked his rights. The court’s findings on
those matters will be subject to review by other courts. Thus, the adequacy of Miranda warnings
and claims of coercion in any given situation can be fully considered.
2. Monitoring interrogations
3.15. Mexico also claims that its consular officers must be present during interrogations to
guard against abuse by the police. But the US justice system flatly prohibits such abuse ¾ during
interrogation or otherwise ¾ and indeed we will vigorously prosecute persons who violate that
prohibition. As a safeguard to ensure compliance, moreover, many departments routinely tape
interrogations to preserve a record that will both expose and deter any wrongdoing and refute
unsupported allegations of mistreatment.
3.16. Finally, neither we nor any other country has interpreted Article 36 to obligate the
police to permit the consular officer to be present during interrogations. Moreover, from the
perspective of the administration of justice, that would be totally impracticable. For example, in
the case of defendant Ramiro Hernandez Llanos, case No. 24, the Mexican consular officer first

15Oregon v. Elstad, 470 US 298, 305 (1985).
16Moran v. Burbine, 475 US 412, 426 (1986).
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visited the defendant nine days after learning of his detention. A consular officer visited defendant
Solache Romero, case No. 47, one month after learning of his detention17. In citing these cases, I
do not mean to suggest that Mexico acted wrongly or delayed. My point is merely that even if
notice is given immediately, there is no basis to assume that the consular officer will respond
promptly, and indeed he has no obligation to do so. Mexico’s proposed rule that interrogations
must stop until the consular officer arrives would prohibit States parties from conducting
interrogations for the days or weeks that it could take for consular assistance to be provided ¾
assuming that there is, in fact, a limit placed upon how long the wait would be based upon
Mexico’s newly found rule requiring a reasonably prompt response from the consulate. This is an
impossible proposition for any criminal justice system.
3. Ensuring adequate interpretation services for non-English speakers
3.17. From the moment of arrest, a person not conversant in English may also need an
interpreter in order to communicate with counsel, the court, the authorities, and to understand the
testimony of witnesses at his trial. Mexico claims that it can provide competent interpretation
services for its nationals who do not speak English. Here again, consular assistance is not
necessary to address this need, because it is fully addressed in the ordinary operation of the
criminal justice system. If the defendant cannot communicate in or understand English, an
interpreter is provided. If an interpreter cannot be located, the proceedings ¾ including
questioning the defendant ¾ are delayed until an interpreter is present. One good example of this
is provided by a case Mexico called to the Court’s attention as an example of our alleged
systematic non-compliance with Article 3618. Matilde Perez-Merino, a Mexican national arrested
in Oregon, spoke a native dialect and did not understand either Spanish or English. Notably, she
was not questioned or given Miranda warnings because no one could communicate with her. A
Mexican consular officer was present when she was brought before a judge three days after her
arrest, but it was the trial court that obtained the interpreter from Mexico19. To this day, we do not

17See Memorial, Ann. 70, App. 37, at A.1687; see also Counter-Memorial, Ann. 2, App. 34, para. 4, at
A.214-215; App. 47, para. 5, at A.251.
18See Mexico Memorial, Ann. 7, Exhibit B, at para. 151.
19See Counter-Memorial, Ann. I, Appendix 4, at A40.
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know if the consular officer could communicate with her, but we do know that it was the court, not
the consular officer, that ensured the competent interpretation service. What happened in that case
is completely consistent with the ordinary process in the United States and led to a fair result.
4. Ensuring legal representation
3.18. The next step after arrest may be the bringing of criminal charges. In the United States,
all defendants ¾ US or foreign national ¾ facing charges that may lead to imprisonment are
entitled to be represented by lawyers who are duly licensed and qualified to practise law. The
Constitution requires that lawyers be provided at government expense to those who cannot afford
to hire their own counsel. Most states and the federal government provide two lawyers for persons
charged with a capital offence.
3.19. The constitutional requirement that a defendant have access to the assistance of counsel
includes a requirement that the assistance be competent. Unlike many legal systems, courts in the
United States will review the actual performance of an attorney and will vacate a conviction of a
defendant represented by a lawyer who, though admitted to practise law, nonetheless provided
incompetent legal representation at trial20. We do not, however, recognize a further legal right to
be represented by the most qualified lawyer in the community. Nor does any other State.
3.20. Mexico claims that lawyers provided to Mexican nationals are often inadequate, not in
the sense that they are incompetent, but rather that they are not as good as some other lawyers
might be. Similarly, the Court heard anecdotal accounts yesterday suggesting that Mexico has
obtained highly qualified counsel for Mexican nationals in numerous cases. But I would draw the
Court’s attention to the specific cases that Mexico has brought before this Court. Mexico did not
obtain a trial lawyer for any of the 21 defendants whose cases they raise before this Court and
about whom Mexico knew in advance of their trials21. Nor did they provide alternative lawyers
even for the four defendants, cases Nos. 7, 10, 20, and 50, whose trials took place after
September 2000 when Mexico established the Mexican Capital Legal Assistance Programme. In

20We cited this principle in the Criminal Justice Declaration, at Ann. 7, para. 15, on p. A.416.
21These are defendants Benavides Figueroa (#3), Covarrubias Sanchez (#6), Esquivel Barrera (#7), Gomez Perez
(#8), Hoyos (#9), Juarez Suarez (#10), Manriquez Jaquez (#14), Mendoza Garcia (#17), Ramirez Villa (#20), Salcido
Bojorquez (#22), Sanchez Ramirez (#23), Verano Cruz (#27), Zamudio Jimenez (#29), Hernandez Llanas (#34), Ramirez
Cardenas (#41), Rocha Diaz (#42), Tamayo (#44), Solache Romero (#47), Camargo Ojeda (#49), Hernandez Alberto
(#50), and Reyes Camarena (#54).
- 32 -
all these cases, Mexico was content to have its nationals represented by court-appointed lawyers
paid by the state.
3.21. Mexico states that its consular officers frequently negotiate with the charging
authorities on behalf of its nationals in an effort to persuade the authorities to charge a lesser crime
or accept a guilty plea in exchange for a lesser sentence. But this is a principal function of the
defence lawyer ¾ who is already provided to all defendants, regardless of nationality, at the latest
upon the formal initiation of criminal charges. All defence attorneys will pursue any possibility for
such a plea bargain, for it is part of the routine process in criminal cases, with which they are
intimately familiar. And there is certainly no evidence or reason to believe that a prosecutor is
more likely to accede to requests for lesser charges when made by consular officers rather than
defence attorneys. Finally, Mexico would like to take credit for a number of cases in which
non-capital charges were brought and in which a Mexican official was involved early in the
process. Here again, Mexico relies on anecdotal accounts that include no specific information at all
to demonstrate what role the consular officer played and certainly no specific evidence showing
that it was the consular officer’s intervention that secured a plea agreement.
3.22. Mexico states that its consular officers frequently spend more time with a defendant
facing a capital sentence than does the defendant’s attorney and cites as examples two of these
defendants who never met the lawyers who represented them in post-conviction proceedings. It is
not at all clear what Mexico’s claim is. If the concern is that the lawyer’s lack of personal contact
has rendered his service ineffective, the consular officer’s visits will not remedy that deficiency,
and the defendant will have a remedy under the law for the ineffective legal assistance in any event.
5. Ensuring expert and investigative assistance
3.23. Mexico also states that its consular officers help in obtaining expert and investigative
assistance. Again, however, the US criminal justice system already provides for this. If a
defendant, particularly in a capital case, needs the assistance of an investigator or expert witness
and cannot afford to pay for this assistance, the investigator or expert will be retained and paid by
the Government. For example, even after defendant Fong Soto, case No. 48, had been convicted
and sentenced, the court funded an extensive defence investigation to try to develop additional
- 33 -
mitigating evidence. And denial of essential assistance to the prejudice of the defendant will result
in the reversal of a conviction. Notably, moreover, to again return the focus to the case before the
Court, Mexico has not complained that any one of the 52 defendants whose cases are presented
here requested, but was denied, investigative assistance.
6. Securing evidence from abroad
3.24. Mexico also states that consular officers can assist in obtaining evidence from Mexico
on behalf of a charged national. But it could occur in any case that a defendant might need
evidence from abroad, and a Mexican defendant may need evidence from a country other than
Mexico. The United States justice process already accommodates those needs. All defendants are
already able to request assistance from the authorities of another country through the use of a letter
rogatory, which is a request to a judge of another country for assistance in obtaining evidence. In
fact, even when the evidence is located in a defendant’s country of nationality and the defendant
has the assistance of a consular official a letter rogatory may still be necessary ¾ for example,
where the custodian of the evidence refuses to produce it without a court order. But the essential
point is that a process is available to all defendants to meet this need. The defendant is not
dependent on the assistance of his consular officer in obtaining necessary evidence from his native
country.
7. Identifying claims of mental impairment
3.25. Mexico next claims that many of its nationals convicted of capital crimes have brain or
other cognitive damage and that its consular officers are trained to recognize such mental
impairments.
3.26. We agree that some persons ¾ of all nationalities ¾ who commit senseless and brutal
acts of violence may be found to suffer from mental impairment. In recognition of this fact, the
United States justice system bars trials from going forward where the person is incompetent ¾ that
is, unable to understand the proceedings or to assist in his defence ¾ and the State will pay for
necessary mental health experts for competency determinations and to assist the defence at trial and
sentencing. For example, in case No. 50 in Mexico’s original filing ¾ a case, I note, that Mexico
withdrew because the defendant was, in fact, offered the opportunity to contact his consular
- 34 -
officer ¾ the court ordered repeated psychiatric evaluations by multiple mental health experts.
Mexico also acknowledges in its case write-up that the authorities identified the condition of and
treated Juan Manuel Lopez, case No. 11. Moreover, raising issues of mental incompetence or
reduced responsibility due to mental impairment is again a classic function of the defendant’s
lawyer. Through counsel, all defendants are thus assured an advocate who will be on the lookout
for evidence that might contribute to such a frequently raised defence.
8. Monitoring trials
3.27. Mexico states that consular officers attend the trial and monitor the proceedings to
ensure that their nationals are treated fairly. But all criminal trials in the United States are open to
the public, including the press, and a verbatim record of those proceedings is prepared and publicly
filed. Given this great openness to public scrutiny, it is difficult to see what a consular official
would accomplish at trial, where he has no official role and is simply another spectator in the
courtroom.
3.28. Mexico states that its consular officers are sensitive to bias in proceedings and are
trained to raise their concerns about an “atmosphere of bias” with the appropriate authorities. We
strongly disagree with Mexico’s unsubstantiated suggestion that the United States justice system is
biased against Mexicans. There is simply no proof of that, much less that defence lawyers, judges,
prosecutors, and members of the public and the press are insensitive to bias or unable or unwilling
to raise concerns if they believe that a particular defendant is facing bias. And if there are
statements or evidence reflecting prejudicial bias, the defendant has the unquestioned right to
complain at trial and, if necessary, to raise his claim on appeal.
9. Clemency proceedings
3.29. Finally, Mexico states that its consular officers can make presentations to clemency
officials on behalf of convicted nationals. In making that claim in its Memorial, Mexico
specifically notes that Illinois’s Governor Ryan commuted the death sentences of three Mexican
nationals after consular officers intervened on their behalf. We agree that consular officers can
usefully serve that function, but that provides no support for Mexico’s claims before this Court for
- 35 -
one simple reason: Mexican consular officials remain able to fulfil this role in clemency
proceedings in each of the remaining 49 cases where clemency has not already been considered.
Conclusion
3.30. Mr. President, it should by now be clear that the consular services Mexico provides
cannot be deemed to be essential to a fair trial. We in no way belittle the importance of these
consular services or question Mexico’s decision to provide them to its citizens. However, the
fairness of the United States justice system does not and could not depend on the willingness of a
consular officer to provide assistance.
3.31. Instead, the system is designed to provide fundamental rights equally to United States
citizens and foreign nationals alike. If the defendant is a foreign national, the system protects his
rights whether or not he asks that his consular officer be notified and whether or not the consular
officer is inclined or able to provide substantial assistance. And as one of my colleagues will
demonstrate this afternoon, if a defendant is deprived of effective assistance of counsel, competent
interpreters, essential investigative or expert assistance, or some other component of fundamental
fairness, the criminal justice systems in the United States provide ample mechanisms for redress.
3.32. Thank you, Mr. President. I ask that you now call on Mr. Sandage.
The PRESIDENT: Thank you, Mr. Philbin. I now give the floor to Mr. Sandage.
Mr. SANDAGE:
IV. FACTS RELATING TO THE 52 CASES AND
ALLEGATIONS OF SYSTEMATIC BREACHES
A. Introduction
4.1. Thank you Mr. President, distinguished Members, I am deeply honoured to represent the
United States of America today before this Court. It is my responsibility to address the 52 cases
now put at issue by Mexico, and Mexico’s allegations of continuing and systematic breaches of
Article 36. In doing so, I will also address Mexico’s burden of proof in this case, and describe the
significant steps the United States has taken to ensure its compliance with its obligations under the
Convention.
- 36 -
4.2. Mr. President, every criminal case turns on its own, distinct facts. The 52 cases Mexico
has brought before you have only one point in common: each involves a heinous murder for which
a Mexican national has been found guilty in a court of law and given a capital sentence. The cases
are otherwise all quite distinct, and extraordinarily complex, both from the perspective of criminal
law and of the Vienna Convention.
4.3. This Court has made clear it will not attempt to act as a court of criminal appeal of last
resort for individual criminal cases22. The judges and the juries in United States domestic courts at
trial have carefully viewed the physical evidence, assessed the credibility of live witness testimony,
weighed the relative merits of the arguments of counsel, applied the law to the facts, and reached
decisions according to law on culpability and penalty. Direct appellate and collateral habeas
corpus litigation is ongoing in all but four of these cases. Most have not yet petitioned for
clemency.
4.4. This Court need not attempt to make specific determinations whether Article 36 (1) has
been breached in these individual cases because, even were any such breach to be established, the
remedy of review and reconsideration remains available, as provided for in the Court’s decision in
LaGrand. This point will be elaborated upon further by Mr. Mathias and Mr. Thessin later today.
4.5. However, were the Court to conclude that the remedy of review and reconsideration
required by LaGrand does not cure any asserted breach of Article 36 (1), and that it must decide
whether there has been a breach of Article 36 (1) in each specific case, then the Court would have
to determine whether Mexico has proven all of the elements establishing a breach before deciding
whether Mexico has proven its entitlement to the extreme remedies that it seeks. In
Professor Dupuy’s presentation yesterday afternoon, Mexico attempted to meet this burden with a
broad and simplistic solution, asking the Court to declare undifferentiated breaches of the
Convention in all cases because, as he said, “the facts are identical 52 times”23, and to order a
sweeping remedy that would apply without regard to those facts. But such an approach cannot be

22See Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 9 April 1988,
I.C.J. Reports 1998, p. 257, para. 38; LaGrand (Germany v. United States of America), Provisional Measures, I.C.J.
Reports 1999, p. 15, para. 24.
23CR 2003/25, p. 54, para. 429 (Dupuy).
- 37 -
reconciled with the Convention and would lead to absurd results. And, needless to say, the facts
are anything but “identical 52 times” as even Ms Babcock granted yesterday morning24
.
4.6. We have set forth in Annex 2 to our Counter-Memorial, in a necessarily very
summarized format, the facts of the 54 cases that were in issue when we filed our
Counter-Memorial, to the extent possible as found by our juries and judges, and supplemented by
our own investigations. The records of our courts underlying these summaries are well in excess of
150,000 pages. Mexico in many instances has given the Court no more than self-serving factual
assertions, often ones considered and rejected by our domestic courts. Since filing this case,
Mexico has already withdrawn three specific cases because their facts did not support Mexico’s
claims. That it has done so points to a larger problem ¾ that this Court could only at great risk of
error attempt to draw conclusions about the Vienna Convention issues in cases with such unsettled
factual foundations. By contrast, Mexico throughout its presentation yesterday persisted in
highlighting the facts of two cases this Court has specifically ruled are not at issue here, because
they were added too late.
B. Mexico must prove its case by conclusive evidence
4.7. Let us first consider the standard of proof that must be applied in this case. It is of
course well settled that a litigant seeking to establish the existence of a fact bears the burden of
proving it25. Because of the exceptional nature of the allegations Mexico makes, and the
extraordinary remedies it seeks, the standard of proof here must be a high one. The Court
recognized in the Corfu Channel case that, where the applicant brings charges of “exceptional
gravity” against a sovereign State, the proof must rise to “a degree of certainty” that can be
characterized as “conclusive evidence”26
.

24CR 2003/24, p. 26, para. 80 (Babcock).
25See Frontier Dispute, Judgment, I.C.J. Reports 1986, pp. 587-588, para. 65. As Judge Guillaume has put it,
“there is no obligation for the parties to prove their ‘claims’, but only to prove the facts on which these claims are based”.
C. Amerasinghe, Rapporteur, Fifteenth Commission, “Principles of Evidence in International Litigation”, in Annuaire de
L’Institut de Droit International, Vol. 70-1, 2002-2003, p. 313 (Reply of Mr. Gilbert Guillaume) (hereinafter this report
will be cited as “Principles of Evidence”).
26See Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 17; see also Sir Gerald Fitzmaurice, The Law
and Procedure of the International Court of Justice, Vol. 1, pp. 126-127 (1986) (“charges of exceptional gravity against a
sovereign state or its Government require to be established by conclusive evidence involving a high degree of certainty”).
- 38 -
4.8. Although that case involved questions of use of force we submit that, because Mexico is
seeking to have this Court undertake unprecedented steps intruding upon the heart of our national
sovereignty ¾ the ways and means by which the United States and its states ensure public order
and safety ¾ the same rigorous standards of proof should apply for all elements of Mexico’s claim.
Questions of this type, just as questions about use of force, implicate the fundamental order of the
State. Moreover, the highly intrusive remedy that Mexico has demanded ¾ one that, as Mr. Taft
has said, would “penetrate the sovereignty of a State and [require the Court] itself [to] reconfigure
State systems to meet the international obligation” ¾ corresponds to the conditions of exceptional
gravity that the Court in Corfu Channel and other cases has found warrants a high standard of
proof.
C. Mexico has not and cannot prove conclusively the relevant elements
of an Article 36 (1) breach
4.9. Were the Court to examine these cases individually, against that standard, it would
discover that Mexico has established some but not all of the elements of proof it must in order to
make out a claim of breaches under Article 36, paragraphs 1 and 2. Ms Babcock sought to boil
these elements down to a mere two, but in fact there are six, as I will explain. First, Mexico must
prove that in each of the 52 cases currently before this Court, the individual was a national of the
sending State ¾ Mexico ¾ for purposes of Article 36.
4.10. Secondly, it must be established that the person was not also a citizen of the receiving
State ¾ the United States ¾ at the time of arrest or detention. No obligation is owed, and no
breach can occur, in a case where the person is a United States citizen. Mexico has conceded this
point and withdrawn the Zambrano case (No. 28), because he was a United States citizen at the
time of his arrest. But there are a number of others among the 52 remaining who present strong
indicators on the present record of United States citizenship as well. Included in this category are
Mr. Avena himself (No. 1), and Mr. Ayala (No. 2), both of whom had a United States citizen
parent, and Mr. Salazar (No. 21), who came to the United States as an infant, as well as to a
number of others27
.

27These cases are specified in footnote 334 of the United States Counter-Memorial.
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4.11. Contrary to Ms Babcock’s suggestion yesterday, we are not arguing that Mexico has
the burden of proof on this second element, but we are arguing that Mexico has the burden of
evidence28 ¾ that the critical evidence that can resolve this point is largely available only from
Mexican sources and, hence, that Mexico must come forward with such evidence before the burden
of proof can be discharged. Whether these 52 individuals acquired United States citizenship by
operation of law depends primarily upon facts which Mexico is far better placed than the United
States to educe ¾ the parents’ names, dates and place of birth, places of residency, marital status at
the time of the child’s birth, and the like ¾ because it is primarily personal and biographical
information about the parents that would provide the answer to the question. Virtually all such
information is in the hands of Mexico through the now 52 individuals it represents. This important
but technical issue is addressed both in our Counter-Memorial29 and in our supplemental filing of
10 December.
4.12. The affidavits Mexico has lately tendered, in which some of these defendants state that
they are not United States citizens, do not meet Mexico’s burden of evidence. Even assuming the
affiants believe they are testifying truthfully in these ex parte statements, these 52 individuals could
be United States citizens by operation of law, without their knowledge, due to the circumstances of
their birth or to legal actions taken by their parents.
4.13. But even if we assume arguendo that each person arrested was a Mexican and not also
a United States citizen, Mexico must show a third element, in its own words: that the arresting
officer “knew or had reason to know” that, at the time of arrest or detention, the suspect was a
Mexican citizen30. Mexico incorrectly attempts to shift the burden of proof on this element to the
United States, but that burden rests squarely on Mexico. The United States cannot, as Ms Babcock
demanded yesterday, “demonstrate . . . that it failed to discover” that an individual was a
Mexican31. In any event, this burden cannot be met in cases such as that of Mr. Salcido Bojorquez

28See, e.g., Principles of Evidence, p. 171 (“if in order to prove its case [the first party] relies on documents which
are in the sole possession of the [second party], then the [first party] carries the burden of proof but the burden of
presenting evidence is on the [second party]”).
29United States Counter-Memorial, para. 7.4.
30See Memorial of Mexico, para. 11.
31CR 2003/24, p. 36, para. 114 (Babcock).
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(No. 22), in which defendants affirmatively misrepresented or simply concealed their nationality32
,
and Mexico appears to concede that the arresting officers are under no obligation, without more, to
inform a Mexican national who misrepresents his nationality.
4.14. Nor can the burden be met in cases where it is clear that the person may well have
appeared to the arresting officials to be a United States citizen. In the case of Mr. Ramirez Villa
(No. 20), for example, it is difficult to see why the arresting officer would have reason to know he
was dealing with a non-United States citizen. Mr. Ramirez Villa had lived in the United States
since he was one or two years old. He had completed US high school, and enrolled in a US junior
college. The same would be true of Mr. Flores Urban (No. 46), who came to the United States at
the age of seven and had been a star athlete and prize-winning science student at the high school of
the town where he was arrested33
.
4.15. Mexico has offered scanty proof on this important element. It typically simply asserted
that the officer should have known, without attempting any individualized showing as to why this
is so. But the reality is that the United States is an extraordinarily large and diverse country. Our
officers cannot assume foreign citizenship based simply upon surname, appearance, or speech
patterns. Unlike many countries, the United States does not have a national identity card system. It
would be quite reasonable for an officer who is questioning an individual who has a United States
citizen parent or spouse, or who has been living since childhood in the United States, or who has
attended school here, to think he is dealing with a United States citizen. There would in such cases
be no “reason to know”, to use Mexico’s own standard.
4.16. In each of the 52 remaining cases, Mexico, fourthly, must show not only that the
competent authorities knew or should have known the person’s true nationality, but also must
pinpoint when that happened so that the Court can determine when the obligation to provide
consular information arose. This could have been well along into the criminal justice process. In
the case of Mr. Caballero Hernandez (No. 45), for example, it appears that even during trial he was
thought to be a United States citizen. His Mexican nationality was unexpectedly revealed only by a
statement by his mother during cross-examination, to the considerable surprise both of the

32These cases are specified in footnote 336 of the United States Counter-Memorial.
33These cases are specified in footnote 338 of the United States Counter-Memorial.
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prosecution and the defence lawyers. Mexico has simply asserted, as to each of these 52 remaining
cases, that the officer knew or should have known of Mexican nationality immediately upon arrest.
This type of bald assertion does not establish this critical element. It is simply part of Mexico’s
effort to lead the Court to the erroneous conclusion that a one-size-fits-all remedy is appropriate.
4.17. If the Court were to conclude that the obligation to inform arose, then it would have to
determine whether Mexico has shown the fifth element ¾ that the defendant did not get consular
information without delay. This is an element that both Parties agree that Mexico must prove34
.
But this element cannot be proved, as Mexico has attempted, simply by pointing to the fact that
Mexico did not receive notification of the detention, because the arrestee may have been informed
but have declined consular notification35. Mexico concedes that this was true in the
Hernandez Alberto case (No. 50), which it has withdrawn ¾ but it was also true in a number of
others, such as the case of Mr. Juárez Suárez (No. 10), in which he was given consular information
at arraignment, 48 hours after his arrest. After consulting with his lawyer, he specifically declined
consular notification.
4.18. Beyond its concession in this one case, Mexico apparently otherwise asks the Court to
believe that every one of the 52 defendants would unquestionably have requested consular
notification if given consular information. Mexico offered no proof for this bald assertion in its
Memorial. We noted Mexico’s failure of proof on this point in our Counter-Memorial36, and
Mexico only recently came forward with a number of affidavits attempting to cure the defect.
These obviously self-serving affidavits, most of which were signed by the criminal defendants after
the United States filed its Counter-Memorial, cannot satisfy Mexico’s high burden of proof in these
cases. Moreover, the United States has not, in the short time available to us, been able to contact
the arresting officers to address the truth or falsity of these affidavits. Thus these affidavits must be
viewed as ex parte evidence with great scepticism. Even with respect to those cases in which
findings of breaches were stipulated to or made by our courts, such findings and stipulations could
have reflected a prosecutorial decision to assume arguendo a failure of notification because, for

34CR 2003/24, p. 27, para. 83 (Babcock).
35See, for example, United States Counter-Memorial, paras. 7.13-7.14.
36United States Counter-Memorial, paras. 7.6-7.7
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example, it was clear that the defendant could not in that particular case show that he would be
entitled to relief regardless of a breach. They likewise could be based on erroneous understandings
of fact or law. Each case must be reviewed carefully with these issues in mind. In any event,
Mexico’s current assertion is flatly inconsistent with our own experience in the United States,
where only a small fraction of those Mexican and other foreign nationals who are given consular
information actually request notification37
.
4.19. If a failure to provide consular information were to be established, there may still have
been no harm to Mexico’s interests. Such prejudice could only be established if Mexico proved the
sixth element: that if consular notification occurred in fact, then that notification did not occur in
time to permit Mexico to render meaningful assistance notwithstanding the failure to give consular
information. Cases such as that of Mr. Hernandez Llanas (No. 34), in which his detention was
made known to Mexico within 48 hours of his arrest, cast doubt on any finding Mexico would have
the Court make that there is always prejudice resulting from a failure to follow the specific
requirements of Article 36 (1) (b). Mexico apparently would have the Court believe that there was
unavoidable prejudice here because Mr. Hernandez Llanas confessed to his crime. Ms Babcock
argued generally that prejudice follows inevitably because any confession “can and will” be used
by the prosecutor as the centrepiece of the case38. In fact, Mr. Hernandez Llanas beat his victim to
death, he raped the victim’s wife several times, and then fell asleep beside her in her bed, and was
found by the police there. His DNA was all over the crime scene. There was no doubt he would
have been convicted even without his statement to police39. With all the physical and eyewitness
evidence, it is simply preposterous for Mexico to argue that it was in every case prejudiced by the
fact that the defendant gave a statement to the police.

37See Declaration of Ambassador Maura A. Harty Regarding United States Compliance with Article 36 (1) (b) of
the Vienna Convention on Consular Relations, para. 54, United States Counter-Memorial, Ann. 1 (hereinafter
“Compliance Declaration”).
38CR 2003/24, para. 139 (Babcock).
39Declaration of Peter Mason concerning the 54 cases, United States Counter-Memorial, Ann. 2, App. 34.
- 43 -
D. Mexico has not and cannot prove conclusively the relevant elements
of an Article 36 (2) breach
4.20. This Court, in LaGrand, expressly anticipated that no State could assure that all
detained foreign nationals would receive consular information40; accordingly, it identified a
remedy for these inevitable situations ¾ review and reconsideration of the conviction and
sentence. Where review and reconsideration either has occurred or can occur, any breach of
Article 36 (1) is cured, and Article 36 (2) inherently cannot be breached.
4.21. A particularized examination against the standard of proof that I have referenced would
also show that Mexico has failed conclusively to prove breaches of Article 36 (2) with respect to
the 52 remaining cases.
4.22. When we turn to the facts relevant to Article 36 (2), we find a familiar mix of
circumstances inconsistent with Mexico’s one-size-fits-all claim that the courts of the United States
have impermissibly failed to address the alleged breaches of Article 36 (1). In a number of these
cases, the Vienna Convention issues have been extensively litigated in United States courts. In
11 cases, our courts concluded that a failure of information occurred, but no prejudice resulted41
.
In other cases, consular officers learned of the case so quickly that there was no possibility of
prejudice. Mexico in many cases has no legitimate complaint, and instead focuses solely on the
fact that a statement was taken from the defendant prior to providing him with consular
information. But that cannot possibly be prejudice, since Article 36 (1) does not have any
implications whatever for the interrogation of criminal suspects, as we will explain later today. In
those cases, the court decided, and correctly in our view, that there was no reason to exclude these
statements from evidence. In other cases, the alleged failure to comply with Article 36 (1) could
have been litigated, but the defendants chose not to raise the claim. Only in some of the cases did
consular notification occur too late for the claim to be considered by our courts. And, as
Mr. Thessin will explain this afternoon, in those cases clemency remains available for full review
and reconsideration.

40LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, para. 124.
41Mr. Ayala (No. 2); Mr. Sanchez Ramirez (No. 23); Mr. Vargas (No. 26); Mr. Maldonado (No. 37);
Mr. Medellin Rojas (No. 38); Mr. Plata Estrada (No. 40); Mr. Ramirez Cardenas (No. 41); Mr. Regalado Soriano
(No. 43); Mr. Caballero Hernandez (No. 45); Fong Soto (No. 48); Mr. Torres Aguilera (No. 53).
- 44 -
4.23. More importantly, Mexico has failed to prove breaches of Article 36 (2) because it has
not shown, and cannot show, that the United States does not provide for review and reconsideration
of any conviction and sentence. This is because ¾ with the notable exception of the three cases in
which clemency has already been granted ¾ none is yet in the posture where all available remedies
with respect to the capital sentence in United States domestic law are exhausted. In fact, many are
still awaiting the hearing of their first direct appeal42
.
4.24. Mexico asks the Court to find that the review and reconsideration available in the
United States is ineffective, and the evidence it presents on this point is completely inadequate to
support any such determination. Mexico certainly has not presented conclusive evidence that the
United States and its states do not provide effective review and reconsideration to the courts and
the clemency process. Indeed, as to several of the nine US states now at issue43, Mexico has
advanced no proof at all. Such proof as it has tendered has been little more than indirect and
unsupported accusations upon the bona fides of state officials and the systems that they administer
in accordance with the law.
E. Mexico has not and cannot prove conclusively
its allegations of systematic non-compliance
by the United States
4.25. I will now respond to Mexico’s assertions of systematic non-compliance by the United
States with its obligations under the Convention. We have in prior cases, and in our
Counter-Memorial44, described to the Court the very substantial efforts undertaken by the United
States to comply with its obligations. The United States has put into circulation more than
100,000 copies of a compliance manual on consular information and notification for law
enforcement personnel, and more than 600,000 pocket cards setting out the requirements of the
Convention. Both of these are in the record before the Court45, and the pocket card is included in
your judges’ book at tab 2. The United States has worked closely with our friends and neighbours,

42See, e.g., United States Counter-Memorial, para. 7.3, notes 326-329 and accompanying text.
43Mexico’s original submission included cases drawn from ten of the states of the United States. With Mexico’s
withdrawal of the case of Mr. Hernandez Alberto (No. 50), the only case from Florida, that state’s legal system is no
longer at issue in this case.
44See United States Counter-Memorial, paras. 2.27-2.33.
45See Compliance Declaration, Ann. 1, Exhibit 1 (pocket card); United States Department of State, Office of the
Legal Adviser, document 10518, 1998, Jan., United States Counter-Memorial, Ann. 21 (compliance manual).
- 45 -
including Mexico, on other training tools, videos and outreach efforts. We continue to co-operate
closely with Mexican authorities to carry out our own commitments under the Convention, and to
facilitate Mexico’s efforts to provide assistance to its nationals in the United States. These are
further documented in our Counter-Memorial and its annexes46
.
4.26. These efforts, of which this Court has taken specific judicial notice47, have been
commended by other States as setting the standard for compliance with the Convention. Our
efforts even prompted Mexican authorities to express their concern that they would be
overwhelmed by the volume of notifications being generated48
.
4.27. It is thus both surprising and indeed disappointing that Mexico, both in its presentation
yesterday and in its Memorial, accuses the United States of committing systematic breaches of
Article 36, even today. We do not. Mexico attempts to use 102 new cases that it has put in issue
toward this end, painting with a broad brush, with the evident hope that thereby the Court will be
swept past the defects in its arguments, and the holes in its proof.
4.28. To begin, 102 cases represent but a tiny fraction of the thousands of cases of Mexican
nationals accused of serious crimes moving through the criminal justice systems of the United
States every day and, as Mexico has conceded, in only six of these cases is a capital sentence even
a remote possibility49. Viewed in context, 102 alleged instances of non-compliance in a wide
variety of criminal cases simply cannot speak to the question of systematic breaches in the context
of this case. Moreover, it has been difficult for us to investigate these cases, as they are often
lacking even accurate names, dates of birth, docket numbers and other basic identifying
information about the defendants (leaving aside their lack of family details). What we have been
able to find thus far, however, does not support Mexico’s assertions of systematic breaches. Quite
the contrary.
4.29. We have, once again, found persons claiming to be United States citizens, dual
nationals, and persons given consular information who elected not to ask for consular notification.

46See United States Counter-Memorial, paras. 2.27-2.23; Compliance Declaration.
47LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, paras. 123-124.
48Compliance Declaration, paras. 47-48, Ann. 1.
49CR 2003/24, p. 37, para. 120 (Babcock).
- 46 -
We have also found many individuals who in fact did request consular notification, which request
was honoured well in advance of trial, often the same day as the request was made. There are some
instances in which we cannot at this point determine whether consular information was given and,
if not, why not. This is due largely to the inaccuracy and incompleteness of the information
Mexico has provided to us. What can be said of these cases, however, is that they do not support
Mexico’s assertions of systemic problems with United States compliance with Article 3650
.
4.30. Mexico’s complaint seems to be that the United States breaches its obligations under
the Convention at will, and that these obligations are not taken seriously. The evidence Mexico has
produced does not support such assertions and is, in any event, contradicted by the evidence we
have offered of our extensive compliance efforts. And, in the end, such breaches as do occur can
be subjected to review and reconsideration in accordance with the principles of LaGrand, as we
will elaborate later today.
F. Conclusion
4.31. Mr. President, in sum, and notwithstanding Professor Dupuy’s broad rhetoric of last
evening, these 52 remaining cases are not one dimensional and they are not susceptible to gross
generalizations. The case today is in a vastly different factual posture from that presented to this
Court in LaGrand. Mexico tells the Court none of this. Mexico has every incentive to portray the
tasks facing the Court on the factual questions as easy. They are not. Working through each of the
52 remaining cases in a methodical and careful way would be impossible on the basis of the
evidence Mexico has provided. But, as we have suggested, the Court need not undertake such
probing review because the United States nonetheless provides for review and reconsideration
consistent with LaGrand.
4.32. Mr. President, this concludes my portion of the presentation of the United States. I
thank the Court for its kind attention and ask that, after the coffee break, you call on
Ms Catherine Brown.

50See Compliance Declaration, App. 4 (Response to Allegations of Continuing Violations of Article 36 in
paras. 159-168 of the Memorial (The “102 Cases” of Alleged Violations)).
- 47 -
The PRESIDENT: Thank you, Mr. Sandage. The hearing is now suspended for 15 minutes
and will be resumed at 11.55 a.m.
The Court adjourned from 11.40 to 11.55 a.m.
The PRESIDENT: Please, be seated. I now give the floor to Ms Catherine Brown
Ms BROWN: Thank you, Mr. President.
V. INTERPRETATION OF ARTICLE 36 (1)
5.1. Mr. President, Members of the Court, it is an honour to appear before you again today
on behalf of the United States. This morning I am going address the proper interpretation of
Article 36 (1), which is the “new” issue in the case ¾ that is, it is an issue that this Court did not
fully address in the LaGrand case. It is also an important issue because Mexico’s requested
remedy, that the Court order the suppression of statements taken before a national is provided with
consular information, in other words, by the use of such statements at trial, depends upon how the
Court resolves this issue.
5.2. Mr. President, Members of the Court, if the Court interprets Article 36 (1) in good faith,
in accordance with its ordinary meaning in context and in light of the object and purpose, and
taking appropriate account of the subsequent practice of States in implementing Article 3651, it can
reach only one conclusion: and that is that “without delay” as used in Article 36 (1) does not mean
“immediately and before interrogation”, as Mexico contends. In fact, Article 36 (1) has no
implications for the interrogation of a foreign national. It does not require that an interrogation
cease while Article 36 (1) procedures are completed. And it does not give the obligation to provide
a foreign national with consular information, or even the obligation to provide consular
notification, the significance that Mexico attributes to it.
The text of Article 36 (1)
5.3. Mr. President, I am going to address first the question of “without delay” and then the
question of the significance of the obligation to provide consular information and notification. It

51See Counter-Memorial of the United States of America (“Counter-Memorial”) at pp. 81-89.
- 48 -
goes without saying that we should start with the text, as Mr. Donovan purported to do yesterday.
The Court should have before it in the judges’ book that we have provided a tab 3, the actual text of
Article 36 (1). We now know subparagraph (b) uses the phrase “without delay” three times. First,
it states that the consular post must be notified, upon request, “if, . . ., a national of that State is
arrested or committed to prison or to custody pending trial or is detained in any other manner”. We
have called this the obligation of “consular notification” in our Counter-Memorial52 and have used
that in this case in order to preserve the distinction between this obligation and the obligation to
inform the individual, which I will get to momentarily. Subparagraph (b) then provides that
communications from a detained foreign national must be forwarded “without delay” to his
consular officer. And finally, it provides, in the concluding sentence, that “[t]he said authorities
shall inform the person concerned without delay of his rights under this sub-paragraph”. And, as I
have just mentioned, to avoid confusion with the obligation to provide consular notification, we
have tried to consistently call this the obligation to provide “consular information”53. This
obligation requires that the detainee be told that his consular officer will be notified without delay
of his detention, if he wishes, and that any communication from him to his consular officer will be
forwarded without delay.
5.4. The text I have just reviewed of course does not say “immediately”, and it does not say
anything about interrogation nor does it use the word “before” to suggest that the required
procedures must occur in relation to any other action.
5.5. To further understand why Mexico’s argument is wrong, I would ask you also to look at
subparagraph (c), which addresses consular access to a detained person. It says, in particular, that
“consular officers shall have the right to visit a national . . ., to converse and correspond with him
and to arrange for his legal representation”. Note ¾ because it is very significant ¾ that
subparagraph (c) does not say that the consular officer shall be entitled to exercise any of these
rights “without delay”54. Mr. Donovan said yesterday that this is merely because subparagraph (c)
sets forth rights, not obligations, and attempted to contrast it with subparagraph (b) but I think it is

52Id. at p. 75.
53Id.
54Id. at p. 77, n. 154.
- 49 -
readily apparent to everyone that in fact there is no meaningful distinction between stating that a
consular officer shall have the right to visit, or stating that the receiving State shall have the
obligation to permit a visit. In neither case must the visit occur “without delay”.
“Without delay” is not defined
5.6. As the Court knows, the words “without delay” are not defined in the Convention. In
the 36 years since the Convention entered into force, States parties have therefore enjoyed a degree
of discretion in how they have implemented the provisions of Article 36 (1) (b) in the context of
their own domestic legal systems. And, in fact, they have implemented subparagraph (b) in a
variety of ways. For the United States, we have provided the guidance that is before you in the
judges’ book at tab 455. And as you can see there, we have said that “There should be no deliberate
delay”, with respect to either consular information or notification, and that the required action
should be taken “as soon as reasonably possible under the circumstances”56
. We have also said
that we “would normally expect notification to consular officers to have been made within 24 to 72
hours of the arrest or detention”57 ¾ in each case indicating a certain degree of discretion in light
of the circumstances. But other States have taken significantly different approaches, as I will
discuss in further detail a bit later.
Mexico’s proposed definition
5.7. As you heard yesterday, Mexico would have the Court limit the discretion of States
under the Convention. In fact, as I will show, Mexico would call the practice of virtually every
State party to the Convention into question, by giving the words “without delay” a special and
highly restrictive meaning. Specifically, by contending that the words “without delay” must
effectively be replaced with the words “immediately and prior to interrogation”58, Mexico is
essentially arguing that subparagraphs (b) and (c) together should be revised to read as follows:
“the said authorities shall ask the person concerned immediately upon his arrest and before he is

55Id. at pp. 79-80. Annex 21, 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, US Department of State, Office of the Legal Adviser, document 10518, Jan. 1998 at p. A525.
56Annex 21 at p. A552.
57Id.
58Memorial of Mexico (“Memorial”) at pp. 70-83.
- 50 -
interrogated whether he would like his consular officers notified of his detention and, if he says
yes, they shall cease all questioning until the consular officer has been notified and had an
opportunity to speak to the person”.
5.8. Clearly there is a vast gulf between this that I have just read and the actual text before
you. And in fact, there is no legal, logical, or practical basis to get from the text of Article 36 to the
reading that Mexico is advancing.
The context and object and purpose do not support Mexico’s interpretation
5.9. Keeping in mind the obvious textual points that I have just noted, let us turn to the
context in which the obligations of subparagraph (b) are stated, and their object and purpose. The
purpose of the Convention as a whole, of course we know, is to promote and regulate consular
relations between States59. It is not to regulate criminal justice systems. To the extent that it
regulates anything, the Convention regulates the treatment and status of consular officers, and
defines their permissible functions, primarily in Article 5, but also to some extent in Article 36.
Those functions, broadly speaking, include assisting nationals of the sending State. But they do not
include protecting the foreign national from a criminal investigation. They do not include
participating in or stopping the questioning of a foreign national in the course of a criminal
investigation. Nor do they include acting as an attorney for a foreign national. And in fact,
consular officers not only are not permitted to act as attorneys ¾ they have no fiduciary duties to
their nationals, and they may act contrary to their national’s interests60. For example, a foreign
national may be detained precisely because a consular officer has asked that he be detained ¾ for
example, by requesting the national’s provisional arrest in connection with an extradition.
5.10. If we focus just on Article 36, we see that its title is, significantly, “Communication
And Contact With Nationals Of The Sending State”. Its purpose is clearly stated in the chapeau:
“to facilitat[e] the exercise of consular functions”. Thus, when subparagraph (a) sets forth the
basic principle that consular officers and their nationals shall be free to communicate, it does so
consistent with the title of Article 36 and for the purpose of facilitating the exercise of consular

59Counter-Memorial at p. 69, citing Vienna Convention on Consular Relations (“VCCR”), fourth preambular
paragraph, Annex 23, Exhibit 1.
60Counter-Memorial at pp. 74-75.
- 51 -
functions by consular officers. Similarly, when subparagraphs (b) and (c) then address the special
circumstance of a national who is detained, they do so to ensure that consular communication and
contact ¾ again, the words used in the title ¾ can continue in the context of a detention, and again
to facilitate the exercise of consular functions by a consular officer61. They add only the additional
provision, that the consular officer may arrange legal representation.
5.11. Mr. President, Members of the Court, you should note carefully that Article 36 is not
addressed specifically to a criminal prosecution, or to a criminal investigation. Its title is not
“Criminal Investigations of Nationals of the Sending State”. The obligations of Article 36 are not
triggered by the initiation of a criminal investigation, they are not triggered by the interrogation of
a foreign national, by the bringing of criminal charges, or even by the commencement of a criminal
trial62. All of these things could happen without a person being detained. If they do happen
without a detention, only the obligations of subparagraph (a), to allow free communication, apply.
If a foreign national is facing a criminal investigation or prosecution but is not detained, the
receiving State has no obligation to inform him of anything under the Convention.
5.12. Mr. Donovan attempted to obscure this fact yesterday by noting that Article 36 (1) (b)
is triggered by an arrest, which connotes a criminal proceeding. This is true that it refers to an
arrest, but its true only because an arrest in that context leads to a detention. The obligations of
subparagraph (b), moreover, will also be triggered by a detention for other purposes, such as for
immigration purposes, or as part of a public health quarantine, or perhaps even in some legal
systems in connection with a civil matter63
.
No right to insist on the provision of assistance
5.13. The Court should also note that nothing in Article 36 or in Article 5 or in any other
provision of the Convention requires that the sending State assist its nationals. This is true even in
the context of a criminal proceeding. Nor does the Convention establish any standards for the
provision of consular assistance. The question of whether and how to assist one’s nationals is
entirely within the discretion of the sending State. No prosecutor, no criminal investigator, no

61Id. at pp. 72-75.
62Id. at p. 85.
63Id. at pp. 81-82.
- 52 -
police officer, and no detaining officer in the receiving State can compel a consular officer to visit,
to communicate with, or in any way to assist a foreign national. Nor can the individual concerned
or his defence lawyer do anything to compel a response. And, of course, no court in the receiving
State can compel a response, either on its own initiative, or at the request of the individual
concerned. The Convention simply gives the foreign national no right to consular assistance if the
sending State declines to provide it64
.
The appropriate definition in light of the text, the context, and the object and purpose
5.14. The clause “without delay” must be interpreted in light of these limited purposes of the
Convention and Article 36, as well as its text. For the purposes of this case, should the Court feel
compelled to adopt a definition of “without delay”, rather than simply to reject Mexico’s, we have
suggested that the most appropriate interpretation of “without delay” would be that it requires
action in the ordinary course of business and without procrastination or deliberate inaction65
.
Interpreting “without delay” in this way is consistent with what the text says and it yields sensible
results each time of the three times “without delay” is used66. In contrast, Mexico’s reading adds
significant new content to the text, and it would create numerous anomalies throughout the
Convention, which uses the words “without delay” and other temporal words in a variety of
contexts67
.
5.15. Our interpretation is also consistent with what the text does not say. It is consistent
with the fact that Article 36 does not address a criminal investigation and does not specify the
method by which notification must be given.
5.16. Our reading is consistent with the fact that a detention will not necessarily relate to a
criminal prosecution. But even in the context of a criminal arrest, our reading fully addresses the
wide range of circumstances that may arise: an arrest of someone who claims, for example, falsely,
to be a national of the receiving State, or whose nationality cannot readily be determined, or the
arrest of many people at once, or the arrest that occurs in exigent circumstances.

64Id. at pp. 99-100.
65Counter-Memorial at pp. 78-104.
66Id. at n. 163.
67Id.
- 53 -
5.17. And, finally, our reading furthers the purpose of Article 36 by facilitating consular
communication and contact and making possible the provision of consular assistance while leaving
a proper degree of discretion to the receiving State in implementation.
State practice shows that Mexico’s interpretation is wrong
5.18. If any doubt that Mexico’s reading is wrong remains, the Court will see plainly that it
is resolved by the practice of States, which we have documented in an Annex to the
Counter-Memorial68. Mexico has consistently failed to recognize the importance of State practice
to the interpretation of Article 36. Yesterday it even suggested that the evidence we submitted is
irrelevant. It is not. What is at issue here is not State practice regarding remedies in unusual cases;
we are talking about how the affirmative obligations of Article 36 (1) are understood. Those
obligations arise in all cases of detentions of foreign nationals. State practice is therefore plentiful
and it is highly probative. And contrary to Mr. Donovan’s assertion yesterday, it is “concordant,
common, and consistent”. Given my time limitations, I will highlight just a few key points. And
as I do so, the Court may wish to refer to the charts we have provided in the judges’ book (tab 5),
and perhaps also to the summary of Mexico’s practice (tab 6).
5.19. First, with respect to the provision of consular information, neither Mexico’s laws nor
its actual implementation of its laws suggests that Mexico has ever thought that it must ensure that
consular information is provided to a detained foreign national prior to interrogation69. In fact,
Mexico’s federal statute on consular notification does not even provide for giving information to
the foreign national; it simply provides for notifying consular officers70. And, notwithstanding its
observation yesterday that Article 36 is incorporated into Mexican law, Mexico does not in practice
provide consular information prior to interrogation. In most other States, as in the United States,
consular information might or might not be provided prior to the interrogation. In only eight States

68Id. at pp. 89-100. Annex 4 to the Counter-Memorial, declaration of Ambassador Maura A. Harty concerning
State Practice in implementing Article 36 (1) of the Vienna Convention on Consular Relations (“State Practice
Declaration”) at pp. A.377-389. See also Annex 3 to the Counter-Memorial, Declaration of Professor Thomas Weigend
concerning the compatibility of Mexico’s submissions with rules of criminal procedure followed by national and
international criminal courts (“Weigend declaration”) at pp. A.361-373.
69Counter-Memorial at pp. 89, 91-92; State Practice Declaration at pp. A387-A388.
70Counter-Memorial at pp. 91-92, citing Article 128, Section IV of Mexico’s Federal Code of Criminal
Procedure.
- 54 -
does it appear to be fairly standard practice to provide consular information prior to interrogation,
but, contrary to Mr. Donovan’s characterization yesterday, these States ¾ with only one possible
exception ¾ do not appear to provide consular information prior to interrogation out of any sense
of legal obligation71. Moreover, a number of States officially follow practices incompatible with
the interpretation that Mexico has advanced. For example, in Argentina, consular information is
provided to detainees at their preliminary hearing by a judge. That hearing follows a period of up
to three days of incommunicado detention, during which the foreign national may be interrogated72
.
5.20. Second, with respect to consular notification, in Mexico, no law requires that
notification be given prior to interrogation. In practice, it may or may not be given prior to
interrogation73. We also find that, in part because States use a variety of means to provide
notification, including the ordinary mail74, notification can take some time to be received. When
States have wanted to ensure notification within a specific time period, they have done so through
bilateral consular conventions which typically provide for notification within periods ranging from
one to four days; the clear understanding here is that the Vienna Convention does not require
notification in any less time. Yesterday, Mr. Donovan erroneously stated that our survey covered
less than a third of States parties. But in fact, it covered over 80 per cent and attempted to isolate
practice under the Vienna Convention from practice under these bilateral conventions. If the
practice of States implementing both the Vienna Convention and a bilateral convention is
considered, it is even clearer that no State understands Article 36 to require notification prior to
interrogation. States do not even understand the more protective bilateral conventions in this way.
5.21. Third, with respect to consular access, consistent with the fact that Article 36 (1) (c)
does not specify that access must be provided “without delay”, in many countries consular access
during the investigative phase of a criminal case is either barred altogether or tightly controlled.
Argentina, Belgium, France, Spain, China, Italy, and several other States permit a certain period of
incommunicado detention during the investigative phase of a case75. In other States, such as

71State Practice Declaration at p. A.380-381.
72Id. at p. A.380.
73Id. at p. 91.
74State Practice Declaration, at p. A385.
75Id. at pp. A385-A386.
- 55 -
Germany, consular officers generally need to obtain written permission before they can conduct a
pretrial visit, and this usually takes a couple of days76. Consular access is less strictly controlled in
many other countries, in which case it might or might not be permitted to happen prior to an
interrogation77. But the sequence would be a function of the timing of two entirely independent
and separate events.
Mexico’s interpretation would lead to absurd results and be impracticable
5.22. Mr. President, Members of the Court, the fact that no State has understood
Article 36 (1) to require consular access before interrogation should come as no surprise, because it
would lead to absurd results to do so, as Mr. Philbin explained in part this morning. We have
already noted that the consular officer has no obligation to visit, to communicate with, or to assist
his national. Holding an interrogation in abeyance pending a consular response could jeopardize an
investigation or threaten public safety; but to hold it in abeyance when a consular officer has no
obligation to respond, and may never do so, would effectively hold the receiving State’s criminal
investigation hostage to the resource limitations and consular priorities of the sending State78
.
Mexico yesterday suggested that this fundamental problem could be addressed by the Court
articulating an elaborate rule allowing a reasonable time for access depending on the severity of the
crime and the proximity of the consular post. Leaving aside the obvious fact that this proposal
would effectively have the Court rewrite the Convention, it would yield even more absurd results.
Instead of a single rule for all States parties, authorities in each State would make subjective
determinations about the seriousness of the crime and the relative availability of consular officers
from a 165 different countries to respond. The result would be hundreds of different rules delaying
investigations for varying and unpredictable lengths of time.
5.23. Leaving aside these absurdities, as a practical matter, States could not have intended
such a result. When police officers arrest persons their focus is on protecting the public and
solving a crime. The arrest may occur in exigent circumstances, or it may involve numerous
people. Often the fact that the arrested person is a foreign national becomes known only in the

76Id. at p. A385.
77Id.
78Counter-Memorial at pp. 99-100.
- 56 -
course of an interrogation itself, or even later. Once it is confirmed that a detained person is a
foreign national, some orderly process must be followed to ascertain and comply with the relevant
requirements79. The Court should recall that not all arrests will be governed by the Vienna
Convention. Thus complying with consular information and notification requirements is not
necessarily a function that can be done “immediately”, as Mexico uses the word, or even a function
that a State would think could be done effectively in connection with an interrogation. This
undoubtedly is why a number of States have reasonably concluded that it is best done at other times
and in other ways, including in judicial appearances subsequent to interrogation80
.
The travaux do not support Mexico’s interpretation
5.24. Finally, I will just spend a moment on the travaux, which Mexico has claimed support
its interpretation. In fact, the travaux show that the Court should be extremely wary of providing
any definition to the words “without delay”, and that the negotiators could not have intended
Mexico’s proposed interpretation. It is true that the words “without undue delay” were rejected
early on for fear that they might encourage deliberate delay. But they were not rejected in favour
of “immediately and prior to interrogation.” Rather, the final text used “without delay” because all
attempts to further define the requirement of consular notification failed81. Moreover, the entire
discussion of “without delay” pertained only to the obligation to provide consular notification. It
had nothing to do with providing information to the detained national without delay. That
provision was added as part of a last-minute compromise and without any discussion of its meaning
or application. Not a single government suggested that consular information should be provided
before interrogation82. So, to recapitulate on that issue, Article 36 (1) (b) does not require the
provision of consular information immediately before interrogation and Article 36 (1) as a whole
does not create any obligations relevant to the interrogation of a foreign national.

79Id. at pp. 81-83.
80State Practice Declaration at pp. A380-A381, A385.
81Counter-Memorial at pp. 100-104.
82Id. at pp. 101-103.
- 57 -
Mexico has exaggerated the importance of the procedural provisions of Article 36 (1) (b)
5.25. I would like now to turn to my final point. I have noted that Mexico has strained to
find support for its interpretation of “without delay” in an effort to establish a legal foundation for
asking the Court to order the suppression of statements taken before consular information is
provided. But it is also making another mistake in reading Article 36 (1) that relates to its request
for remedies. It overstates the significance of the obligation to provide a foreign national with
information, and even of the requirement to provide formal notification83. Mexico suggests that all
failures to provide consular information, and all failures to provide formal notification, are of equal
significance. In Mexico’s view, it is legally irrelevant whether the consular officer learns of a
detention within a short period of time or does not ¾ if the detained person was not given consular
information without delay everything ¾ according to Mexico ¾ that follows is legally flawed.
Mr. President, Members of the Court, this argument is inconsistent with reality, as the Court will
readily see when it reviews the facts of the now 52 cases.
5.26. It is also based on an unsustainable effort to transform the obligations to provide
consular information and notification into “human rights” or rights “fundamental to due process”.
We have addressed in detail in the Counter-Memorial why that effort should be rejected84. But I
would like to address the issue now simply in the context of the proper interpretation of
Article 36 (1).
5.27. We have seen that the purpose of Article 36 is to facilitate the exercise of consular
functions by a consular officer85. The exercise of consular functions depends on the consular
officer knowing of the detention, not necessarily on the individual being informed of the possibility
of notification, and not on formal notification by the receiving State. While failures to provide
consular information, and officially to provide consular notification, are always regrettable, they
cannot be viewed as equally significant for purposes of Article 36 regardless of whether and when
notice occurs in fact.
5.28. The significance of giving consular information to the foreign national is thus limited,
it is a procedural device. It is a procedural device that allows the foreign national to trigger the

83Counter-Memorial at pp. 76-78.
84Id. at pp. 121-140.
85Id. at p. 73.
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related process of notification. This is clear even in Mexico’s own federal legislation, which
provides only for consular notification, and not for the provision of consular information86. And if
a consular officer receives notice in fact of a detention within essentially the same period of time as
it would have received notification if consular information had been provided “without delay”, a
failure to provide consular information or even formal notification, cannot cause any real harm to
the sending State. The Court recognized this in LaGrand, when it found violations of
Article 36 (1) (a) and (1) (c) because actual notice to Germany did not occur until after the
LaGrand brothers were sentenced and the procedural default rule became effective. The Court
made clear that Article 36 (1) (a) and (c) are not necessarily violated simply because the specific
requirements of Article 36 (1) (b) are not followed87. And when it ordered review and
reconsideration “taking account of the violation,” the Court similarly recognized that not all
violations are the same. We have also seen this morning that Article 36 (1) imposes no obligation
whatever on a consular officer to exercise consular functions for the benefit of a detained national.
5.29. Consistent with this, the obligation to provide consular information is not an obligation
to provide information about any substantive right, including the right to consular assistance,
because no such right exists. Nor is it an obligation to provide information relevant to the criminal
process. The obligation is fully satisfied by telling the detained foreign national nothing more than
that he may request consular notification and have his communications forwarded. A procedural
requirement of this limited nature, triggered by a detention, not by a criminal prosecution, cannot
possibly be fundamental to the criminal justice process.
Summary
5.30. Mr. President, Members of the Court, the Court should reject Mexico’s efforts to define
“without delay” to require consular information, and consequent notification and access,
“immediately and prior to interrogation”. It should also reject Mexico’s effort to elevate the
importance of the procedural provisions of Article 36 to substantive rights integral to the criminal
process. The linkage to the criminal process that Mexico seeks is not supported by the plain

86Id. at pp. 91-92.
87LaGrand, para. 73.
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language of Article 36; it is not supported by the object and purpose of Article 36; and it is plainly
inconsistent with the practice of States. No State party to the Vienna Convention has ever
understood Article 36 (1) the way Mexico has asked the Court to interpret it. Adopting Mexico’s
reading would constitute nothing less than a wholesale rewriting of the Convention, which this
Court has properly said is not its function88
.
5.31. Mr. President, that concludes my presentation and I ask that you now call upon
Mr. Mathias.
The PRESIDENT: Thank you, Ms Brown. I now give the floor to Mr. Mathias.
Mr. MATHIAS:
VI. Interpretation of Article 36, paragraph 2
6.1. Thank you, Mr. President. It is an honour for me to appear again before this Court on
behalf of the United States.
6.2. Mr. President, Members of the Court, it falls to me this morning to provide an analysis
of Article 36, paragraph 2, of the Convention. I shall first examine the bifurcated text of the
provision and suggest the meaning of both parts of the text and the provision when read as a whole.
I shall then explain that the provision has two distinct applications. First, it regulates and qualifies
the implementation of the obligations undertaken in Article 36, paragraph 1. Second, it speaks to
remedying breaches of an obligation undertaken in Article 36, paragraph 1, when they occur. The
latter application, the remedial application, was the primary focus of the Court’s analysis of this
provision in LaGrand, and it is at issue in this case as well. Finally, I shall address the question of
the appropriate scope of the Court’s review with respect to alleged breaches of Article 36,
paragraph 2.

88Counter-Memorial, at pp. 142-144.
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A. Article 36, paragraph 2, states the general rule that the obligations
undertaken in Article 36, paragraph 1, are to be implemented
in accordance with existing laws and regulations
6.3. Members of the Court, you have the text of Article 36, paragraph 2, in front of you at
tab 3 of the judges’ book. Its structure is bifurcated; it states a general rule in its main clause and
then limits that general rule in the proviso.
6.4. The first part of the paragraph, the main clause, provides that “the rights referred to in
paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the
receiving State . . .”. This articulates the general rule: the “rights referred to in paragraph 1” are to
be exercised in broad accordance with the receiving State’s own laws, which include the laws and
regulations governing the operation of its criminal justice system. In other words, States parties are
not required to implement the obligations undertaken in paragraph 1 by enacting new laws or by
creating new procedures or new judicial doctrines. Nor are they required to create wholesale
exceptions from their normal laws and regulations. None of that. The obligations are to be
implemented in conformity with the laws and regulations of the receiving State. That is the general
rule: existing laws and regulations apply.
6.5. In its Memorial, Mexico did not discuss this “general rule” at all. Yesterday, it was
dismissive of it. You might be wondering whether it has any relevance to this proceeding. In fact,
it is of enormous significance. The general rule is an insurmountable obstacle to Mexico’s
position.
6.6. The very same Article of the Convention upon which Mexico relies for the creation of
the obligations at issue in this proceeding establishes a rule that the existing laws and regulations of
the receiving States parties provide the context within which the obligations are to be exercised.
The import is clear: one cannot interpret these obligations in a way that would lead to the
conclusion that the existing laws and regulations of the various States parties would generally be
found inadequate. Such an interpretation would be inconsistent with the context in which the
obligations were created and with the express terms of the general rule I have just described. If the
drafters of the Convention had understood it to require broad changes in the domestic legal systems
of all States parties ¾ and certainly Mexico’s proposed interpretation would require broad changes
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in the laws and regulations of every State party ¾ then this provision would not have been
included in the Convention at all.
6.7. Ms Brown has just noted, and Professor Weigend will explain further this afternoon, that
the vast majority of States parties permit law enforcement interrogation of suspects before consular
information or notification can be provided. In addition Professor Weigend will review this
afternoon, that virtually all States have rules concerning the need to raise certain arguments at trial,
and no State appears to order new trials merely upon a showing of a failure of consular notification
where a defendant has at a minimum failed to show some sort of prejudice. These points are fully
elaborated in our Counter-Memorial and are unrebutted by Mexico. Yet the implication of
Mexico’s position is that innumerable provisions of these sorts in the domestic laws of States
parties generally are inconsistent with the requirements of the Convention and would have to be
changed in order to bring States parties into compliance with their obligations.
6.8. This brings us to the proviso, which constitutes a limitation to the general rule. It states
that this general rule is subject to the proviso that the laws and regulations of the receiving State
“must enable full effect to be given to the purposes for which the rights accorded under this Article
are intended”.
6.9. What are these purposes and what is their effect on the issue before us?
6.10. As Ms Brown explained a few moments ago, the Convention itself gives the answer to
the first part of the question. It includes in paragraph 1 of Article 36 an express statement of
purpose: “With a view to facilitating the exercise of consular functions relating to nationals of the
sending State.” That is the only relevant statement of purpose that can be found in the Convention.
Article 36 (1) is intended to facilitate the exercise of consular functions relating to nationals of the
sending State and not for any other purpose. The Convention is clear on this point.
6.11. In its Memorial, Mexico misstates the purpose of Article 36. Mexico asserts that its
object is “to guarantee to a sending State the opportunity to ensure fair proceedings for its
individuals subject to trial before the criminal authorities of a foreign State”89. There is no legal
analysis to support Mexico’s substitution of “guarantee” for “facilitate”, the word that appears in

89Memorial, para. 303.
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the Convention, or to explain the substitution of the phrase “the opportunity to ensure fair
proceedings” for “the exercise of consular functions”, the phrase that appears in the Convention.
This is assertion, nothing more.
6.12. Mr. President, Members of the Court, let me summarize our discussion thus far:
Article 36 (2) states the general rule that “the rights referred to in paragraph 1” are to be exercised
consistent with the existing laws and regulations of States. Paragraph 2’s proviso is in the nature of
an exception to this general rule. It is an important part of Article 36 (2) and should be applied
consistent with its proper interpretation. But that interpretation must take into account the
presumption embodied in the general rule ¾ that the existing laws and regulations must be
accepted as the governing framework and that only in the exceptional case would the proviso be
applicable. As Professor Weigend will explain this afternoon, no State party has laws and
regulations consistent with Mexico’s proposed interpretation of Article 36 (2) ¾ none. It follows
from this that Mexico’s interpretation cannot be correct. The drafters of the Convention evinced a
clear intent through Article 36 (2) to preserve their existing laws and regulations and to ensure that
in any but the most exceptional cases it would be clear that obligations undertaken in the
Convention must be understood to fit within existing laws and regulations. Since no State party has
laws consistent with Mexico’s interpretation of Article 36, it simply cannot be the correct reading
of the Convention.
B. Article 36 (2) has two applications, basic and remedial;
Mexico has inaccurately described the Court’s requirements
for the remedial process
6.13. Having considered the meaning of Article 36 (2) it remains to consider the two
different contexts in which it might be applied.
6.14. The basic function of this paragraph applies in connection with the ongoing
implementation of the obligations undertaken in paragraph 1. For example, if a consular officer
wishes to visit a detained national, he or she must do so in conformity with the laws and regulations
of the receiving State, as long as those laws and regulations give full effect to the purpose of
facilitating the provision of consular assistance. Thus, as a practical matter, if a consular officer
wishes to visit a detainee he or she must do so during visiting hours, but visiting hours must be
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frequent and lengthy enough to facilitate the exercise of consular functions. We can all agree to
this.
6.15. The second application of the provision is remedial. In LaGrand, the Court decided
that the procedural default rule, as applied to the LaGrand brothers, prevented “full effect [from
being] given to the purposes for which the rights accorded . . . are intended”, by
“prevent[ing] [US courts] from attaching any legal significance to the fact, inter alia,
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”90
.
Thus, the Court in LaGrand decided that where a breach of Article 36 (1) has taken place,
Article 36 (2) requires that there be an opportunity for the significance of the breach to be assessed;
elsewhere in the Court’s Judgment, this is referred to as review and reconsideration of the
conviction and sentence by means of a State’s own choosing taking account of the violation91
.
6.16. Now, much of what Mexico has said about the legal requirements for this remedial
function ¾ the review and reconsideration process that is at the heart of LaGrand ¾ is simply in
error.
6.17. Thus, Mexico has asserted that “the Court determined in LaGrand that clemency
review alone did not constitute the required review and reconsideration”92. No basis for this
statement is given, nor could it be, as the Court made no such determination. The clemency
processes in respect of the LaGrand brothers were not part of the Court’s dispositif in LaGrand, nor
did the Court expressly discuss clemency in its reasoning. Moreover, as the United States has
conformed its conduct subsequently to LaGrand, the clemency process is now informed by the
review and reconsideration requirement.
6.18. Mexico has also asserted that “it is clear that the Court’s direction to the United States
in LaGrand clearly contemplates that ‘review and reconsideration’ would be carried out by judicial
procedures”93. No basis for this statement is provided either, and for the same reason. The Court’s
Judgment in LaGrand provides no support for Mexico’s position. The Court in LaGrand did note

90LaGrand, para. 91.
91LaGrand, para. 125.
92Memorial, para. 246.
93Memorial, para. 245.
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that Germany had argued for a result that “where it cannot be excluded that the judgment was
impaired by the violation of the right to consular notification, appellate proceedings allow for a
reversal of the judgment and for either a retrial or a re-sentencing”94. That was what Germany
argued. So it was only Germany’s argument. Notably, there is no reference to appellate
proceedings in the Court’s discussion of its review and reconsideration remedy, and no such thing
in the dispositif. In its place is the Court’s express conclusion that the review and reconsideration
“obligation can be carried out in various ways. The choice of means must be left to the United
States.”95 The Court pointedly did not approve Germany’s requested remedy of appellate review.
6.19. Mexico does make one assertion with respect to the legal sufficiency of review and
reconsideration with which the United States agrees. It says, in its Memorial, that:
“The precise manner by which the United States seeks to fulfil its obligations is
a matter of domestic law. What domestic law mechanisms are utilized is not relevant,
provided that those mechanisms uphold the international legal obligations of the
United States.”96
This at last is common ground between the Parties: so long as the means by which the United
States provides review and reconsideration comply with the requirements articulated by this Court
in LaGrand, there is no breach of Article 36 (2). And, in considering United States compliance
with the review and reconsideration requirement, the Court should bear in mind my initial point:
Article 36 establishes the general rule that obligations created thereunder are to be implemented in
conformity with existing laws and regulations.
6.20. Mr. President, Members of the Court, we have seen that Article 36 (2) of the
Convention has two applications, a basic application in connection with the routine ongoing
implementation of the obligations undertaken in paragraph 1 and a remedial application where a
breach of those obligations has occurred. With respect to each of those applications, the general
rule remains the same: the existing laws and regulations of the receiving State should apply,
subject only to the proviso in an exceptional case. Consistent with the respect that the Convention
dictates for the domestic laws and regulations of States parties, as well as with considerations

94LaGrand, para. 118.
95LaGrand, para. 125.
96Memorial, para. 285.
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relating to its own role, the Court in LaGrand did not require a particular mechanism for the review
and reconsideration requirement that it articulated, but rather left the choice of means to the State
party to the Convention. If the means chosen by the State satisfy the requirement of the review and
reconsideration process as articulated by the Court, there is no breach of Article 36 (2).
Mr. Thessin will demonstrate this afternoon that the means chosen by the United States within its
existing laws and regulations ¾ those related to judicial review and executive clemency ¾ fully
satisfy these requirements. There is no breach of Article 36 (2).
C. There is no basis for a case-by-case review of
compliance with Article 36 (2)
6.21. One additional point relates to the nature of the review to be carried out by the Court in
this case. In the LaGrand case, as the Court is aware, it found that the breach of Article 36 (2),
“was caused by the circumstances in which the procedural default rule was applied, and not by the
rule as such”97. In that case, the record before the Court fully documented the proceedings related
to the LaGrand brothers. There was an uncontested factual basis upon which the Court could rest
its conclusion with respect to Article 36 (2). Here, even as lately supplemented by Mexico, the
evidence it has submitted is far from providing a basis on which the Court could assess the
compliance of the United States with its obligations under this provision with respect to the
52 named Mexican nationals.
6.22. In addition, with respect to the 52 individual cases, a final assessment of United States
compliance could not in any case be undertaken by the Court because the cases remain ongoing. It
is for this reason that none of these 52 cases is admissible, and Mexico’s claims concerning them
must be rejected. At most, therefore, in these proceedings, the appropriate assessment by the Court
should be limited to the relevant laws and regulations as such, and the Court’s judgment should not
include 52 separate assessments addressing the compliance of the United States with the obligation
set forth in Article 36 (2) in respect of each of the named Mexican nationals.
6.23. There is an additional, independent reason why the Court should go no further in this
case than to review the relevant laws and regulations of the United States as such. It would have

97LaGrand, para. 125.
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the advantage of corresponding more closely to the nature of the obligation undertaken by the
States parties in the proviso to Article 36 (2). That obligation, after all, is stated generally: that the
laws and regulations of a State party must enable full effect to be given to the purposes for which
Article 36 (1) was intended. It is an undertaking by a State as to the nature of its laws and
regulations, it is not a guarantee with respect to the application of those laws and regulations in any
particular case98. Mexico’s claims with respect to Article 36 (2) in this case should be dismissed
because the laws and regulations of the United States are structured so as to provide for the review
and reconsideration required by the Court. The Court should not, as a matter of law, make any
finding with respect to the compliance of the United States with the obligation set forth in
Article 36 (2) in the cases of individual Mexican nationals. At most, the question is the laws and
regulations of the United States as such.
6.24. Mr. President, this concludes my presentation and the presentation of the United States
for this morning. Thank you for your attention. When we reconvene this afternoon, I ask that you
call upon Mr. Taft.
The PRESIDENT: Thank you, Mr. Mathias.
This statement of Mr. Mathias brings this morning’s session to an end. The Court will
resume the hearings of the first round of oral arguments for the United States at 3 o’clock this
afternoon.
The Court rose at 1 p.m.
___________

98See Dispute Concerning Access to Information Under Article 9 of the Ospar Convention (Ireland v. United
Kingdom), Final Award, 2 July 2003, Permanent Court of Arbitration (Declaration of Mr. Reisman), para. 14 (“the only
international claim that lies is that the respondent State failed to ensure that its municipal law was created or structured in
such a way as to accomplish the objectives prescribed by the Convention. A direct claim for failure to accomplish those
objectives in a specific case . . . does not lie because that is not how the specific obligation imposed by the relevant treaty
provision is framed.”).