INTERNATIONCOURTOFJUSTICE
CASECONCERNINGAVENAANDOTHERMEXICANNATIONALS
(MEXICOv. UNITEDSTATESOFAMERICA)
COUNTER-MEMORIAL OF
THEUNITEDSTATESOFAMERICA
VOLUME 1
TEXTOFTHECOUNTER-MEMORIAL
3 NOVEMBER2003 Tableof Contents
1. INTRODUCTION.. ...................... 1
II. STATEMENTOFFACTS. ................ 1 1
A. The Factsofthe Fifty-Four Cases
Are Unique,Complex, and
Inconsistent withMexico's
Descriptionof Them....................... 11
B. The Fi@-Four Cases Arise in a
Large andDiverseCountry with
Independent Law Enforcement
Systemsinwhich ForeignNationals
are Not AlwaysIdentified
asSuch ................................ 14
C. Al1of theFifty-FourPersons Have
Been Triedin a Legal System that
GuaranteesDue Processto All
Defendants Regardlessof Nationali......... 20
D. The UnitedStatesHas Consistently
Made GoodFaith
Efforts to Implementthe VCCR.............. 30
III. THE COURTLACKS JURISDICTION
TO DECIDEMANYOF MEXICO'S
CLAIMS ............................... 37
IV. THIS COURTSHOULDFIND
SIGNIFICANTASPECTSOF
MEXICO'SAPPLICATION AND
SUBMISSION INADMISSIBLE ........... 45V. THE LAGRANDJUDGMENT
SETS FORTH THE
PRINCIPLESAPPLICABLE TO
THE DISPUTEPRESENTED
TOTHECOURT ........................ 57
VI. THE UNITED STATES
COMPLIESWITHALL OFTHE
OBLIGATIONSUNDERARTICLE
360FTHEVCCR ....................... 67
A. The Rules of Treaty Interpretati........... 67
B. Mexico has Misconstrued and
Overstated the Object and Purpose
ofArticle36 ............................. 69
C. Article 36(l)(b) Obligates Statesto
Provide ForeignNationals With
Consular InformationUnder the
VCCR and toNotiQ Consular
Officers WhenRequested "Without
Delay", Meaning inthe Ordinary
Course of Business and Without
Procrastinationor
Deliberate Inaction........................ 78
1. The OrdinaryMeaning in
Context Supports theDeJinition
Given To "WithoutDelay "by
the UnitedStates....................... 81
2. State PracticeConfzrms
" WithoutDelay "Hus theMeaning
Given ToIt by the UnitedStates.......... 89 3. StatesHave Not Accepted
Mexico S Proposed DeJinition
BecauseResort to that
DefinitionLeads toAbsurd
Results. .........................
4. TheTravaux PréparatoiresSupport
the DeJinitionGiven To "WithoutDelay "
bythe United States. ................... 100
D. The UnitedStates Gives Full Effect
To Article36(1) and Providesthe
"Review andReconsideration"
Required Under Article 36(2) in Its
CriminalJustice Systems and
Through Executive Clemency
Proceedings ......................
1. TheImplications of Article36(2)
and LaGrandfor theLaws and
Regulationsof the Receiving State ........ .105
2. TheUnitedStates Criminal
JusticeSystems Give "Full
Effect" toArticle 36(1),and
ProvideAppropriate Remedies
for Breaches, Through the
JudicialProcess ............
3. The UnitedStates Criminal
JusticeSystems Also Give "Full
Effect" ToArticle 36(1)
ThroughExecutive Clemency
Proceeding .......................... .112 4. Article36(2)Does Not Compel
StatesPartiesto TreatArticle
36(1)as CreatingRights that
areFundamentaltoDue
Process ............................. .121
5. Mexico S Invocation ofthe
DoctrineofEffectivenessDoes
NotSupport itsProposed
Readingof the Proviso................ .141
VII. THE COURTSHOULDNOT
FINDVIOLATIONSOF
ARTICLE36(1) OR (2) IN ANY
OFTHE FIFTY-FOUR CASES,
BECAUSEMEXICOHAS
FAILEDTO MEETITS
BURDENOFPROOF
REGARDINGTHEM ................... .147
A. Noneof the Cases Involving
MexicanNationals is Appropriate
for Consideratiby This Court...........
B. Mexico Has NotProven its
Allegations ofBreaches of Article
36(l)(b) With Respectto the Fi@-
Four Cases.............................. .150
C. MexicoHas Not Proven Its
Allegationsof Breaches of Article
36(l)(c) With Respect to the Fi@-
Four Cases.............................. .158 D. MexicoHas Not ProvenBreaches
of Article 36(2)WithRespect tothe
Fi@-Four Cases......................... .161
E. The Clemency ProcessDoes
Provide MeaningfulReview
and Reconsideration.................... .165
1. TheCaseofJavierSuarez Medina. ........167
2. TheCaseof Gerardo ValdezMaltos........170
VIII. IFTHECOURT FINDSA BREACH
OF ARTICLE 36(1),IT SHOULD
APPLYTHESAMEREMEDY
HEREAS IT ORDEREDIN
LAGRAND -"REVIEWAND
RECONSIDERATION" - AND
SHOULDNOT GRANT MEXICO'S
REQUESTFOR VACA TUR,
EXCLUSION,ORDERSOF
CESSATIONANDGUARANTEES
OF NON-REPETITION ................. .177
A. Mexico's ProposedRestitution
Remedy Shouldbe Rejected
Because It Assertsa Formof
Restitution NotAppropriateto the
Circumstancesof IndividualCases
Involving Breaches ofArticl............ .178 1. Review and Reconsideration
Satis-es thePurpose of
Reparations and Strikes the
Appropriate Balance of the
Rights and Interests at Stak............ .180
2. Mexico S Proposed RemedyIs
Inconsistent withthe Requirement
of a Causal Link Between any Breach
Proved and theHarm Resulting .......... .187
3. Review and Reconsiderationis
Consistent with this CourS
Conceptionof its OwnRoleand
theDecisions of Other
International Courts
and Tribunals ..............
4. Thereis No Legal Basis.forthe
Automatic and Categorical
ExclusionaryRule Mexico Has
Demanded ............................ 194
B. Mexicois not Entitled to the Order
of Cessation and Guaranteesof
Non-Repetition that it Demands ............ .200
1. Mexico 'Requestfor an Order
of Cessation has No Basisin
International Law. .................... .202
2. Mexico SRequestfor Broad
Guaranteesof Non-Repetition
hasNo Basis inInternationalLaw ....... .205
IX. SUMMARYOF REASONING. ........... .217
X. SUBMISSION. ......................... .219 CHAPTER1
INTRODUCTION
1.1 The facts in thecaseMexico has broughtto the Court
are many and complex. In important respects they are also in
dispute. Mexico invites this Court to re-determinethe facts and
re-weighthe evidence of fifty-four separatecriminalcases.
These cases have, collectively,been the subject of hundredsof
judicial proceedings, thousandsof hours of testimony and
argument, and extended deliberationbyjudges andjuries,
followed in many caseswith review by otherjudges. The
records of these proceedingsare voluminous. Mexico's
summaryabstracts of the cases draw selectivelyfromthese
records,and then implythat the Court can easily makethe
determinations of fact necessaryto support the legal
conclusions Mexico proposes. The most casual reviewof the
cases demonstrates, however,that this is not so.
1.2 Some of the fi@-four cases involvedefendantswho
definitely or probably wereUnited States citizens at the time of
their arrest. Some involveMexican citizens who affirmatively
representedthemselves asUnited States citizensto United
States- and in one case to Mexican - authorities. Other
arrested individuals gaveno specific indicationof their
nationality, but presented strong indicia of United States
citizenship, including significantcontacts and familiarity with
the United States and its legalsystem. Five offered confessions
or inculpatory statementsprior to being detained andtaken into
custody, before the requirements of Article 36(l)(b) ofthe
Vienna Convention on Consular~elations' would have been
'ViennaConvention on ConsularRelations, 24Apr. 1963,596 U.N.T.S.
261 (hereinafter,this Conventionwill be referred to as the "VCCR"); Vienna
Conventionon Consular RelationsConceming the CompulsorySettlementtriggered. In a substantial numberof the cases,Mexican
consular officers knew of thedetention beforetrial and were
able to offer consular assistancebefore and attrial, and
throughout laterjudicial proceedings.
1.3 Mexico shares littleof this with the Court. Instead, it
makes unfounded yet categoricalassertions,painting a callous
system that disregards therights and guaranteesof due process
of law to disadvantagedandunsophisticated Mexicannationals
simply because they areforeigners. It posits prosecutors,judges
andjuries who conspiretogethertoward this end. It portrays a
criminaljustice systemthatfeatures convictionsand sentences
unsupported by evidenceanddependent on unconscionable
procedural abuses.
1.4 In fact,the criminaljustice systems in the United States
guaranteethe very proceduralrights andprotectionsthat
Mexico asserts its nationals havebeen deprivedof in the fi@-
four cases. Defendants areinformed of and giventheir due
process rights, and judges enforcethose rights. Those not fluent
in English are provided withtranslators,or are addressed in
their mother tongue. Custodialinterrogationis terminated (or
not commenced at all) oncea detainee invokeshis absolute
right to silence or requestsa lawyer, and he or shemust be
informedof these rights at thetime of his arrest. A lawyer
assigned to represent the detaineemust be an effective one, and
is provided at no chargeto an indigent defendant. Defendants
are entitled, at state expense,to the assistancenecessary to offer
mitigating evidence beforesentencing. If the system fails in
any respectto meet theseobligations, andthat failure is timely
raised, the system can andwill correct the error.
of Disputes,24 Apr. 1963,596U.N.T.S.487 (hereinaftert,hisinstrument
will bereferredto asthe"Optionl rotocol,VCCR"),Annex23, Exhibit1.1.5 That these particular fi@-four defendantsdid not
prevail attrial, or during appeals or collateralproceedings (for
thosewhose cases have reached that stage),casts no doubt on
the faimessand effectivenessofthecriminaljustice process in
the United States. Quite the opposite. Where crimes have been
committed, a fair and effectivecriminaljustice system convicts
the guilty and imposes thepenalties prescribed in law.
Convictionand sentence,however,do not conclude the criminal
process inthe United States. Manyofthese defendants may yet
file briefsand argue their casesonappeal,so the outcome of
theircases remains to be seen. Three havehad their capital
sentencescommuted by executive clemency. None of the
others hasyet requested clemency review.
1.6 Mexico has failed in its Mernorialto cany its burden of
provingbreaches of Article 36 inanyofthese cases. On one
point, however, the Courtmay depend:if a breach of Article 36
has occurred in anyof these fi@-four cases,the United States
will provide forthe review and reconsiderationof their
convictionsand sentences.
1.7 If the factual issues involvedinthis case are complex,
the legalissues arenot. They are, indeed,relatively
straightforwardbecausethey are, for themost part, identicalto
thoserecently addressed bythe Courtin theLaGrand case
(Germanyv.UnitedStates of~rnerica)~:(1) What are the
obligations owedto the sending Stateandits nationals under
Article36 of the VCCR; and (2) Whatis the proper remedy for
breachesof those obligations. Mexicoproposes that the Court
findthat the rights and remedieswithrespectto Mexican
SeegenerallyLaGrand(Germany v.UnitedStatesofAmerica),Judgment,
I.C.J. Reports2001 (hereinafter,thejudgof theCourtin thiscase will
be referrto as "LaGrand,JudgmentW).nationalsunder the Conventionare differentfiom those with
respectto Gerrnan nationalsset out inLaGrand. TheUnited
Statesdisagrees.
1.8 This Court announcedits Judgment inLaGrand on 27
June 2001, barely two yearsago. Thejudgrnent spelledout the
obligationscreated underArticle 36. It prescribedremedies in
caseswhere those obligationsare not camed out and foreign
nationals are sentenced to severe penalties. In a Declaration
accompanyingthe Court'sJudgrnent, then-PresidentGuillaume
noted, with regard to theremedy announcedby the Court, that it
did not address the positionof nationals of countriesother than
Germany. "However", he said, "in orderto avoid any
ambiguity, it should be madeclear that therecan be noquestion
of applying an a contrario interpretation to this paragraph"3.
1.9 Since the decisioninLaGrand, the United States has
conformed its conduct, foral1foreign nationals,to theholding
in thatcase. It has redoubledits efforts topress law
enforcementofficers to inform foreign nationalswithout delay
that, if they wish, theirconsulate will be notified of their arrest.
In caseswhere Article 36has not been observed,the United
Stateshas undertaken withinthe context of itsmunicipal laws to
allowreview and reconsideration of the convictionand sentence
taiung account of this fact.
1.10 Mexico, however, asks the Court to modi@substantially
the Judgment in LaGrand. It proposes an entirelynovel
interpretation of the obligationscreated by Article 36 and,
notwithstanding PresidentGuillaume's Declaration,a radically
differentremedy in caseswhere Article 36 obligationsto
Mexican nationals havenotbeen carried out.
LaGrand,Judgment(Declarationof President Guillaume).1.11 Its novel interpretation isthatthe consular officia1is,
andwas understood by the StatesParties to be, a central player
inthe criminal process. Mexico arguesthat a foreign national
mustbe informed notjust "without delay"but "immediately"
upon detention that he or she canrequest consular assistance; if
suchassistance is requested, al1interrogation must stopuntil the
consular official arrives to participate inthe process. Yet the
consular official has no obligation under the VCCR to act atall,
much less without delay.
1.12 Mexico's case is foundedon an implicit but incorrect
assumption that theVCCR guaranteesdetained persons a right
to consular assistance. It does not. It enables persons to seek
assistance and consularofficers to beinformed of the detention
of their nationals, so that the consularofficers will be allowed-
but not compelled - to give assistancewithin reasonable
parameters andsubject to receivingState laws and to sending
Statelaws, regulations and instructions. The consular officer
cannot be compelled either by a defendant or by any courtto
provide assistance, or to meet anyparticular standardof
assistance. Whetherassistance isactually provided isa matter
solely for the consular officer to decide. The detained person
may ask for assistance, but the VCCRaffords him no claimfor
a remedy in his criminal case basedon his consular officer's
refused, untimely, or ineffective response.
1.13 In explaining its request fora different remedy, Mexico
suggests that the Court in some waycurtailed the remedyit
prescribed inLaGrandbecause the German nationals involved
in that case had beenexecuted priorto the Court'sjudgment.
But the Court knowswell that itsremedy in LaGrandwas
particularly designedto apply prospectively for living German
nationals in future cases. PresidentGuillaume's Declaration
makesclear it was intended to applyin the cases of nationals of
other States as well, including Mexicannationals.1.14 Recognizing thedifficulty involvedinpersuading the
Courtto adopt a differentremedy for Mexicannationals,
Mexicoasksthe Courtto findthat the United Statesis not
actuallyproviding them the remedyset out inLaGrand.
Specifically,Mexico arguesthat the review andreconsideration
of theconvictions and sentences providedby the United States
in itsjudicial proceedings, andinthe clemency process,does
not meetthe Court's requirement.
1.15 Inasmuch as the clemency process isavailable in every
case,Mexico's argument mustfocusparticularlyon this.
Mexicomust establish that the clemency processdoes not
providethe review and reconsideration calledfor by the Court
in LaGrand. If not, itwill have failedin every caseto
demonstrate either abreach of Article36(2)'sobligation to give
full effectto the purposes for whichthe articleis intended or
that a proper remedyis not availablefor a violationof Article
36(1).
1.16 With so muchdepending onits canying this point,
Mexico'scriticism ofthe clemency process inthe United States
is unusually vehement. In considering Mexico'sargument,
however,the Court shouldbear in mind: (1)The clemency
processis establishedby law andoperatesin accordancewith
the law;(2) Every Mexican national convictedof a crime and
sentencedto a severepenalty inthe United Stateshas the legal
rightto request clemency,basing hisrequest on an alleged
breachof Article 36or on any otherground;and (3) In every
suchcase, the clemencyprocess allows for reviewand
reconsiderationtaking accountofthe breach,andthe clemency
decisionmaker canvacate aconvictionor modifj a sentence
when that is appropriate. In short,the clemencyprocess
"allow[s]the review and reconsideration" calledfor in
LaGrand.1.17 Essentially,Mexico asksthe Courtto find that the
clemency systemdoes not operate as it is supposedto. For this
Court or, indeed,any internationaltribunal,to make such a far-
reaching determinationconceming a coreaspectof a State's
municipal legalsystem, would be unprecedented. To base such
a finding on themeager and incompletedescriptionof the
United States'clemency processput fonvardin Mexico's
Memorial would be reckless. Mexico presentsa handful of
tendentious affidavitsand lawreview articles,assertions of
disappointed defense counsel,unsupportedstatements
challenging thecornpetenceand conscientiousnessof state
officiais, and a highly selectivecharacterizationof a half-dozen
clemency proceedingsout of hundreds. Noneof this, in
whatever strongrhetoric it may be presented, evenbegins to
provide the Court witha recordthat wouldjustiQ setting aside
the presumptionof regularity to which properlyestablished
domestic legalproceduresof a State are entitledin this forum.
1.18 This Court's functionsdo not includemaking the kind
of broad assessmentof national legal processesMexico is
requesting here. The Court has consistentlydeclined to assume
such a role. Yet,Mexico's case depends vitallyon the Court's
reaching the conclusionthat the clemency processdoes not
provide a Mexicannational with an opportunityto have his
conviction and sentence reviewedtaking accountof an alleged
violation of Article36. But clemency is establishedprecisely to
take into accountany factorthat bears on thefaimess or
legitimacy of a conviction or sentence. And,indeed, in three of
the ten stateswhose clemency process Mexicoderides in this
case, officials havexpressly taken Article36 violations into
account.
1.19 Though itschallenge to the clemencyprocess is
particularly vehement, Mexico's indictmeno t f the United States
criminaljustice systems doesnot limit itselfto clemency.
Mexico's remedialrequests illustrate starklythatit seekstohave this Courtassume many of the functions of a court of
criminal appeal. National courts of criminal appeal determine
whether lower courtshave made proper findings of factand
ensurethat the law is applied correctlyto the facts. National
courts of criminal appeal (or electedlegislatures) determine
how rights can be vindicated withinthe legal systemand
determine when it is appropriate to establish rules that evidence
will or will not be used or that newtrials will or will not be
granted for procedural or substantiveviolations of law. These
are not the functionsof this Court.
1.20 The Court should understandjust how extraordinary,
indeed extreme, Mexico's requests for remedies are in this case.
Not a single criminaljustice systemin the world - not one
among the more than 160Parties to the VCCR - operatesin
accordancewith the rules Mexico would have this Court adopt
and impose on the United States. Mexico'sown systemdoes
not conform tothem. Criminaljustice systems do not operate
this way because there are weightypublic interests inholding
criminals responsible andin finalitythat militate against
automaticallyundoing that which has been done by the courts.
There must be an overriding reasonto reopen finaljudgments.
A breach of Article 36 by itself is not treated by any Stateas
warranting automatic action. This isbecause Article36(l)(b)
does not, contraryto Mexico's suggestion, create rightsthat are
fundamentalto dueprocess. It protects only a possibility of
assistance fromconsular officers, not a right to receivesuch
assistance, nordoes it impose standards forthe provision of
such assistance when it is given. This is not surprising,since al1
criminaljustice systemsmust be able, like that of the United
States,to ensure a foreign nationala fair trial regardlessof
whether consularassistance is provided.
1.21 Mexico's case depends upon another related but
insupportable conclusion. Mexicoargues that consular
assistance is bothessential to fundamentaldue processand hasemergedas a humanright. This assumptionunderlies Mexico's
argumentthat oneofthe VCCR'spurposesis to assure the
consularofficial's directinvolvementin the criminal process
because,without the consular official,the United States could
notbe trusted to treatMexican defendants fairly. Moreover,
Mexicoasks this Courtto assessthe designand operationofthe
proceduralrules governing thecriminaljustice systems in the
United States, includingthose relatedto the timely presentation
of claims, and find themwanting. Al1of this is notwithstanding
the protections affordedby the Constitutionand lawsof the
UnitedStates to al1persons charged withcriminal offenses,and
the responsibilityof the courts to assure thatal1Mexican
nationalsbenefit fromthose protections.
1.22 Mexico's argument,of course,runs squarely in the face
of the Court'sjudgment in LaGrand. The Court statedthat it
had "not found that a United States law,whether substantiveor
proceduralin character [was] inherentlyinconsistent with the
obligationsundertakenby the UnitedStates in the" VCCR~.
Mexicoargues thatthe Court was mistaken. It has not,
however, provideda factual or legalfoundation for that
argument. Rather, Mexicopresentssome referencesto
newspaperstories, isolated instancesof comments by local
officials,and articles by pamphleteers thathave since been
discreditedby empirical research. Even if itwere the Court's
practiceto review the legal systems ofStates and awardthem
passingor failinggrades, whichit is not, the material Mexico
has putforward in support of its positionwould be totally
inadequate. The Court should rejectMexico's argument insofar
as itdepends on the premise that fora Mexican national to
receivea fair trial inthe United States,the participation of a
Mexicanconsular official is required.
4
LaGrand,Judgment,para. 125.1.23 Simply put, Mexicooverreaches. The casepresentedby
Mexico is one lacking anyfactual, legal, orprudentialbasis
uponwhich relief couldorshould be granted.
1.24 This Counter-Memorialwill proceed as follows. First,
the United States will presenta statementof the overall factual
context in which the disputebetween Mexico andthe United
Statesarises. It will then establish that manyof Mexico's
claims either exceed theCourt'sjurisdiction or shouldbe found
to be inadmissible. Next, the United Stateswill analyzethe
relevant provisions of theVCCR and will establish that
Mexico's arguments on thenew legal issues presentedare
without merit and that, withrespect to the issues thatthis Court
has alreadyresolved inLaGrand, the United Statesfully meets
its international obligationsunder the VCCR, as this Court
statedthose obligations inLaGrand. The United Stateswill
then establish that the fi@-four specific cases Mexicohas
featured are far more complex legally and factuallythan
Mexico'spleadings indicateand that Mexico has notmet its
burden of proof. Finally,the United Stateswill establishwhy
this Court ought not revisit itsconclusions inLaGrand nor grant
Mexicothe exceptional remedy it has requested. CHAPTERII
STATEMENTOFFACTS
2.1 Each of the fi@-four cases beforethis Court is
different5. Wesummarizecases brieflyhere and discussthem
in more detail in Chapter VI1of this Counter-Memorial where
we analyze them in light of the relevantprovisions of the
VCCR. To understand these cases properly, however,it is also
necessary to be accurately informed aboutthe context inwhich
the cases have arisen. Regrettably, Mexico'sMemorial has
presented a badly distorted picture of the background to these
cases. Unless it is corrected, this wouldcreate a highly
misleading impressionof the UnitedStates, its legalsystem,
and its commitment to observe Article36 of the VCCR.
A. The Factsof the Fifty-Four CasesAre Unique, Complex,
and Inconsistent withMexico'sDescription of Them
2.2 Each of the fi@-four cases has its own, unique facts that
remain under review both by the Department of Stateandby
Ourlegal system, but several patterns are clear. Al1involve
persons originally sentenced to capitalpunishment for heinous
murders. A number involve questionsof nationality - thecases
include at least one and probably more citizens of theUnited
States, as to whom no obligation attachedunder Article36.
They also includeallegedly Mexicannationals (Mexicohas
failed properly to establishthe nationality of any) who
apparently failedto make their Mexicannationality knownto
5 We will henceforthreference the casesbythe case number assignedby
Mexico in Appendix Ato Annex 7 of the Memorial, followedbythe
person'sfamily name. The facts of the casesare presented in appendices,
sometimessupported byexhibits, to the Declarationof Peter
Concerningthe Fifty-FourCases (hereinafter,this declaration willbe
referred to as the "Cases Declaration"), Annex2.the competent United Statesauthorities atthe time of their
arrest or detention orwere affirmativelyunderstood by the
authoritiesto be United Statescitizens6.
2.3 Regardless oftheir nationality, weknow that at least
forty-fiveof these defendantshad beenin the United States for
more than five years before their arrest,and that many had lived
in the United States sincechildhood. A numberwere fluent in
English. At least fortywerequite familiar withthe United
Statescriminaljustice systemsatthe timeof their arrest, usually
due to prior arrests7.
2.4 Some of the fifty-four defendants, but notall, made
statementsto the police. Five did soprior tobeing arrested or
detained,and thus before any obligationunder Article 36 could
have attached, evenunderMexico's interpretationof that
article8. A sixth gave an incriminatingstatementto Mexican
authoritiesprior to his arrest byUnitedStates authorities9.
Moreover,not al1of the defendants' statementswere used at
their trials. When they were used, they wereused only afier a
court hadthe opportunityto considerwhetherthe defendanthad
understoodand knowingly waived hisconstitutionalrights,
includinghis right not tomake a statementandto the assistance
of counsel.
2.5 In many cases, Mexican consularofficerswere awareof
SeedetaileddiscussioninfrCahapterVII.B,andinparticuln.133.
SeeAppendicestotheCases DeclarationA, nnex2.
Theseare:#29 Zamudio Jimenez# ;36LealGarcia;#39 Moreno Ramos;
#41RamirezCardenas; #51 PerezGutierrez.SeeCases Declaration,
correspondinAppendices,Annex2.
SeeCase#22 SalcidoBojorquez.See afsoCasesDeclaration,
correspondinAppendices,Annex2.the anest prior to trial and sentencingand had anopportunity to
provide timely consularassistancelO.Indeed,notificationto
consular officers fiequently occurred earlyenoughthat, if a
problem existed, a timely claim under Article36 could have
been raised with the trial court if desired. Yet moreoften than
not, even in this situation, no claim wasmade. Nor, in many
instances, was the claim raised throughaperiodof many years
and multiplejudicial proceedings. In those casesin which
claims were raised, however, courtshaveconsideredthem on
the merits, including cases where the claimwas also found to
have been raisedtoo late.
2.6 In short, the factsof these cases are extremelyvaried,
and no single generalizationcanbe madeaboutthem. But few,
if any, are comparableto the LaGrandcase. Moreimportantly,
the remedy setout inLaGrandis still available. Thegreat
majority of the fi@-four cases are stillin the midstof state or
federaljudicial proceedings. Somewill likelyremain in
litigation for a numberof years. In three casesthesentence has
been commuted throughthe clemencyprocess, basedin part on
a claimed breachof Article 36 l. And the convictionsand
sentences of the remaining fi@-one defendantscan also be
reviewed and reconsideredin the clemencyprocessin light of
any breach of Article 36.
'OInanumberof them,Mexicodidnotprovidethelevelof consular
assistanceitdescnbes asitsgeneralpractice.CompareMernorial, tatement
of Facts, SubsectiA, paras.34-88with,e.g., #6Covarrubiasanchez,#34
HemanezLlanez, #47 SoiacheRomero;CasesDeclarationc ,orresponding
Appendices,Annex 2.
" See Cases #45Caballero Hernande# z,46 Flores,and#47 Solache
Romero. SeeCasesDeclaration,corresponding Appendices,Annex2. B. The Fifty-FourCases Arisein a Large and Diverse
Country with IndependentLawEnforcement Systemsin
whichForeign Nationalsare NotAlways IdentifiedasSuch
2.7 The fi@-four cases involve arrests, convictions, and
sentences imposedby courts in ten states that, underthe United
States' federalsystem of govemment, enjoy substantial
autonomy fromthe federal govemment on law enforcement
mattersI2. Within broad parameters - chiefly the Constitution
of the United States and the individualstate constitutions - the
federalgovemment and the govemment of each of the fifty
states and otherjurisdictions (such asthe District of Columbia
and Puerto Rico) set for themselvesthe processes they (and
their law enforcement officers)willfollow in arrestsand
bookings, what information will besought from detainees,how
issues are decided before trial,and how trial, convictionand
sentencing will be conducted. Directenforcement
responsibility rests with 18,000separate state and locallaw
enforcementunits employing 700,000officers13. They are
spread geographically over a huge area - 9.8 million square
ki~ometers'~.They erform law enforcement fùnctionsfor over
274 million persons 7s.
l2The ten statesare: Arizona;Arkansas;California; Florida; Illinois;
N13ada; Ohio;Oklahoma;Oregon;andTexas.
United StatesDepartment of Justice,Office of Justice Programs,Bureau
ofJustice Statistics,LawnforcementStatistics:SummaryFindings,2000,
availableuthttp://www.ojp.usdoj.gov/bjs/lawenf.htm#summary,Annex23,
14hibit 190.
See UnitedStatesCensusBureau,GeographicCornparisonTable:
Population,HousingUnits,Area,andDensity: 2000, availableut
http://factfinder.census.gov/servlet/BasicFactsTable?~lang=en&-~~name=D
EC-2000-SF 1-U-GCTPH 1-US9&_geo-id=O1OOOUSA , nnex23, Exhibit
191.
''The total UnitedStatespopulationin 2000(the last generalcensus)was
274 million persons. UnitedStatesCensusBureau, TheForeignBorn
Populationinthe UnitedStates: (Table1.1)Populationby Sex, Ageand2.8 The United States is often called a nation of immigrants.
While246 million of its citizens (as of 2000) were bom in the
UnitedStates, in almostal1cases they descended from
immigrants. Another 11 million were bom in another country
andacquired United Statescitizenship through naturalization.
Thelaws of the United Statesconceming citizenship are
extraordinarilygenerous,allowing acquisitionof citizenship at
birthby virtually al1personsbom in the United States and by
persons bornoutside the United States to a United States citizen
parent in a wide range of circumstances. They also liberally
allowacquisition of citizenshipthrough naturalization by aliens
who have lived in the United Statesas lawfulpermanent
residents. In addition,the United States has had significant
programspermitting even aliens illegally in the United States to
legalizetheir status and eventually become citizensI6.
2.9
Of course, many persons in the United States are not
UnitedStatescitizens. The United States has 8million legally
residentaliensI7. Approximately 7 million aliens are illegally
presentin the United tat tes" Each year approximately 40
millionforeign nationalsvisit the United statesI9. In 2000, an
estimated4.8 million Mexicannationals resided in the United
CitizenshipStatus,CurrentPopulationSurvey,documentPPL-135, 2000,
Mar.,Annex23, Exhibit2.
16See Declarationof EdwardBetancourt(hereinafter, ts eclarationwill
bereferredto asthe"BetancourDeclaration"),paras.2-8, Annex 18.
17UnitedStatesImmigrationand NaturalizationService,Office of Policy
andPlanning,Estimatesofthe UnauthorizedImmigrantPopulationResiding
inthe UnitedStates:1990to2000, 2003,Jan.,p. 18,Annex23, Exhibit4.
18
Id.atp. 1.
l9United StatesTradeAdministration, fficeof Trave& Tourism
Industrie,nternationalArrivals tothe U.S.:Historical Visitation1995-
2002,2003, Apr.,p.6,availableut, http://www.tinet.ita.doc.gov/view/f-
2002-04-001/index.html?ti-cartrtc1 oo24.091202.30935,Annex
23,Exhibit192.States illegally(69%of al1illegal aliens120a ,ndinthat same
year, over 56,000Mexican aliens were removedfor criminal
violations 21.
2.10 As a result, the United States has numerousracial or
ethnic minority groups amongits residents. Thelargest single
racial or ethnic minority group in the UnitedStates(33 million)
is ~is~anic~~a ,lmost two-thirdsof whom arepersonsof
Mexican heritage(21.7million)23.Spanishis the Zingua franca
in many communities. In a country where personsof Hispanic
descent serve in Congress, in high-ranking ExecutiveBranch
positions, and as Governors, wherethey sit asfederal and state
judges, serve as Ambassadors, GeneralsandAdmirals, and as
law enforcementofficers at al1levels, to "lookHispanic", to
speak with an accent, or to carry a Hispanicsurnamedoes not in
any way indicatethat a particular individualisnot a citizen of
the United States.
2.11 The vast majority of persons arrestedintheUnited
United States Immigrationand NaturalizationService,Office of Policy
and Planning,Estimatesof the UnauthorizedImmigrantPopulation Residing
in the UnitedStates:1990to2000, 2003, Jan., pp. 1,9, Annex23, Exhibit4.
21 United States ImmigrationandNaturalization Service,2000 Statistical
YearbookoftheImmigration andNaturalizationService, 2002, Sept., pp.
224-235, Annex 23, Exhibit 193.
MelissaThemen & RobertoR.Ramirez, "The HispanicPopulation in the
United States",inurrentPopulationReports (UnitedStatesCensus
Bureau), documentP20-535,2000, Mar., p. 1,Annex23,Exhibit3.
23MelissaThemen & RobertoR.Ramirez, "The HispanicPopulationin the
United States", inrrentPopulationReports (UnitedStatesCensus
Bureau), documentP20-535,2000, Mar., p. 1,Annex23,Exhibit3. In light
of the Mexicanexpatriate populationin the UnitedStates,the Govemment of
Mexico operates56 consulatesand honorary consulates,along with other
representativeoffices, in the UnitedStates, by far thestnumber of any
foreign govemment. Other StatesPartiesto the VCCRhavevarying levels
of consular representationin the United States,withnonecessarycorrelation
between the number of sendingStateconsulates andthenumber of sending
State nationalsin the United States.States are United States citizensfor whom consular notification
requirements arenot an issue. Moreover, given the sizeof the
United States, manylaw enforcement departments rarely arrest
foreign nationals. Inthese and otherjurisdictions, when
someone is arrested, UnitedStates citizenshipmay be taken for
granted regardless of surname,appearance, or placeof birth
inside or outside the United States as long as theperson arrested
has been in the UnitedStates for a period of time. Whena
person is arrested, it is neithereasy nor necessarily standard
practice to inquire into thatperson's citizenship. The question
of nationality is notat the time of an arrest among theofficer's
central concems, whichare first to protect the public and
investigate the circumstancesof the crime, and second to
identifi the personarrested anddetermine whetherhe or she has
committed the crime. This latter function, identiQing a person
for law enforcement purposes,can be done by accessing records
maintained on thebasis of name and date of birth that do not
necessarily include nationality information. Moreover,
enforcement of the immigration lawsof the United States is
primarily the responsibilityof the federalgovemment,not the
States.
2.12 A United States citizenmay not have any documentation
of citizenship, andwill almostcertainly not be carryingsuch
documentation at the time of arrest. Persons bomin the United
States may live theirentire lives without obtaininga citizenship
document, such asa passport, because the United States has no
national identity card system (nor,even, a law requiring thatal1
persons carry identitydocumentswith them). Persons more
commonly carry documentssuch as a driver's license, which
are issued both to citizens and non-citizensand indicate identity
and residency ratherthan citizenship or nationa~ity~~.
24See Betancourt Declaration,Anne1x8,para.10;Declarationof Dominick
Gentile ConcerninBureauof CitizenshipandImmigrationServices2.13 Foreign nationalsmay also not have with them
documentsshowing their nationality, particularly if they are in
theUnited States illegally. If a foreign nationalis arrested and
claims tohave been born in the United Statesorto be a United
Statescitizen, it would take some time to leam that the claim is
fa~se~~D . etermining that a person who hasbeen arrested is a
foreignnational is alsocomplicated by a numberof other
factors. Persons may resent being asked abouttheir nationality,
takingthe inquiry as a questioning of their legitimacy as United
Statescitizens or as being motivated by stereotypes. The
millionswho are in the United States illegallymay not wish to
disclosetheir nationality,out of fear of being handed over to the
immigrationauthorities. Aliens regardless of status may decline
to havetheir consular officers notified, out of distrust of their
owngovernment,or a desire not to have it involved in their
affair~*~.Long-term legal aliens may regardtheir nationality as
irrelevantor as a matter of persona1privacy27.
2.14 This congeries of social, cultural, historical, legal and
demographicfactors helps explain the numberof foreign
nationals involvedin the criminaljustice systemsof the United
Stateswithout being recognized (or choosingto identie
Records(hereinafter, thisdeclaration will be referredto as the "Gentile
Declaration"),para. 2, Annex19.
25 SeeBetancourt Declaration,paras. 3,4,7,9, Annex 18;Gentile
Declaration,para. 2, Annex 19.
26Infact,the vast majorityof foreign nationals in theUnited States decline
consularnotification when given consular information. SeeDeclaration of
AmbassadorMaura A. HartyRegarding United StatesCompliance with
Article36(l)(b) of the ViennaConvention on ConsularRelations
(hereinafter,this declarationwill bereferred to as the "Compliance
Declaration"),para. 54, Annex1.
27
The Supreme Court hasrecognized that "[d]istinctionsbetween citizens
solelybecause of their ancestryare by their very natureodious to a free
peoplewhose institutions are founded on the doctrineofequality".
Hirabayashiv. UnitedStates,320 U.S. 81, 100(1943),Annex 23, Exhibit 6.themselves) assuch. As a consequence, itis possible that some
foreignnationals may notbe informed of the possibility of
consularnotificationunder the VCCR at the time of their arrest
notwithstandingthe best effortsof the United States
Govemment. This is not remarkable; the practicaldifficulties
of implementationwereex resslyrecognized during the
negotiation of the VCCR, and remain relevant todayto the
ability of al1States Parties, especiallyin diverse and dispersed
societies,to comply. Difficultiesin implementation shouldnot
28 For example,the United Kingdomdelegate to the U.N. Conference on
Consular Relations, "... recognizedthe possibility of special problems,as in
the caseof neighbouringcountries wherepeople crossed the border
frequentlyforworkor pleasure. ... Another solutionwould be to adda
sentenceto theeffect that the obligationapplied only where persons were
detained for morethan 48 hours." UnitedNations, Conferenceon Consular
Relations,Vol.I,Summaryrecordsofplenary meetingsand oftheFirst and
SecondCommittees,A/CONF.25/16, 1963,p. 340, para.21,Annex 23,
Exhibit7. Similarly,the representativeof the Federationof Malaya stated
that "[sub-paragraph(b) of article36(1) - then requiringnotification in al1
cases] seemed tohim to be inapplicablein a country witha high level of
immigration,suchas his own, where foreign nationalsforrnedalmosthalf
the population. If the sub-paragraph wasadopted, the Federation of Malaya
wouldbe compelledto make reservations,and it wouldcertainly not be
alone indoing so." UnitedNations, Conferenceon ConsularRelations, Vol.
1, Summa- recordsofplenary meetingsand the meetingsof theFirstand
SecondCommittees, document AlCONF.25116,1963,p. 36, para. 11,Annex
23, Exhibit7. Thailandproposedthe deletion of sub-paragraph(b) in its
entirety,Thailand:amendmentto article 36, document
A/CONF.25lC.2lL.101,in UnitedNations, Conferenceon Consular
Relations, Vol.I,Annexes:Proposaisandamendmentssubmittedinthe
SecondCornmittee, document A/CONF.25/16/Add.1, 1963,p. 84, Annex 23,
Exhibit8, statingthat: "[tlhere wereoverfour million aliens in Thailand, and
they were free to livein any part of the territory area of 500,000 square
kilometres- except for theareas whichwere prohibited on security grounds;
some of themresidedin very remotedistricts. Sub-paragraph(b) [then
requiring notificationin al1cases] imposed anobligation which his
govemmentwouldbe unable to fulfill,and he would thereforeoppose it."
United Nations, Conferenceon ConsularRelations, Vol.I, Summaryrecords
ofplenary meetingsand themeetings oftheFirstandSecondCommittees,
documentA/CONF.25/16, 1963,at pp.336-337,para. 34.cal1into question how diligently the United Stateshas been
working to meet its obligationsunder the VCCR.
C. Al1of the Fifty-Four Persons HaveBeen Triedin a Legal
System that GuaranteesDue ProcesstoAllDefendants
Regardlessof Nationality
2.15 Each of the fi@-four cases involvesa person,whether a
citizen of the United Statesor of Mexico,who was andis
entitled to the fulldue process guaranteesprovidedby the
United States federal andstate criminaljustice systems. These
guarantees, including procedural guarantees,meetand even
exceed the requirements of international~aw~~A . swill be
evident from the description below,these guaranteesaddress
themselves to many of the same kinds of issuesthat a consular
officermight normallyaddress were one ofhis nationals
arrested: representationby legal counsel; adequatelanguage
interpretation; an objective understanding oftheproceedings;
and the like. The United States and its constituentunits are
obligated to honor due process rights, regardlessof the
nationality of the defendant, and regardlessofthe legalityor
illegality of a foreign national's presenceinthe Unitedstates3'.
29
See Declaration of ChristopherA. Wray, Assistant AttorneyGeneral,
Criminal Division, U.S.Departmentof Justice (hereinafter,this declaration
will be referred to as the "Criminal Justice Declaration"), paras. 14-15,
Annex 7; compare with Articles 9, 14,and 15of the international Covenant
on Civil and Political Rights, 19Dec. 1966,999 U.N.T.S. 171,175-177,
Annex 23, Exhibit 194.
30See, e.g., Zadvydasv.Davis, 533 U.S. 678,693 (2001),Annex 23,Exhibit
9 ("But once an alien enters the country, thelegalcircumstancechanges, for
the Due Process Clause appliesto al1'persons' withinthe UnitedStates,
including aliens, whether their presence hereisul,unlawful,temporary,
or permanent.") (citing P1,vlerv.Doe, 457 U.S. 202,210 (1982),Annex 23,
Exhibit 10;Mathews v. Diaz, 426 U.S. 67, 77(1976),Annex 23,Exhibit 11;
Kwong Hui Chew v.Colding,344 U.S. 590,596-598, andnn. 5,6 (1953),
Annex 23, Exhibit 12;and YickWo v.Hopkins,118U.S. 356,369(1886),
Annex 23, Exhibit 13).Where these rights are breached, theconviction or sentencecan
ofien be set aside.
2.16 Police officers in the UnitedStates frequentlyquestion
potential witnesses during a criminal investigationwithout
arresting ordetaining them. There is no requirement thatsuch
witnesses give their informationin the presence of legal counsel
or subjectto other conditions ifit isgiven freely. As noted
above, fiveofthe fifty-fourdefendantsgave statementsin such
circumstances3'. In each caseinwhich there was a custodial
interrogation,however, (i.e.the person was not free simplyto
walk away),the person was protected bya requirement that he
must be informed, in a language thathe could understand,that
he had the right to remain silent(that is, the right notto
incriminatehimself), a right enshrined inthe United States
constitution3*. The Fifih Amendmentprovides, in relevant
part: "no person ... shall be compelledin any criminal caseto
be a witness against himself,norbe deprived of life, liberty,or
propertywithout due processof law". Each arrestedperson
must be told the consequences of giving up that right and
answeringquestions ("anything youSaycan and will be used
against youin a court of law"),that he or she has the rightto
speakwith a lawyer before answeringany questions, and that,if
he or shecannot afford to hire a lawyer,one will be provided at
governmente~~ense~~.
3'As notedabove,theseareCases#29Zamudio Jimenez# ,36 LealGarcia,
#39 MorenoRamos, #41Ramirez Cardena# s,51PerezGutierrez.
32SeeCriminalJusticeDeclaration, aras.8, 20-26,Annex 7;UnitedStates
Constitutio, mendments 5 and14, Annex23, Exhibit14. Thisguarantee
is made applicabtotheStatesbytheFourteenthAmendment.The
colloquialexpression"to takethe Fimeansto invoketherights
guaranteed btheFifthand Fourteenthmendmentsasthebasis forrefùsing
totesti@inacriminalcourtortomakeincriminatingstatement to
overnmentauthorities.
A SeeMirandar Arizona, 384U.S.436,478-479 (19661,Annex23,
Exhibit15.2.17 Thesearewhat have corne to be known as "Miranda
warnings"or statements of "Mirandarights" - constitutional
rights thatthe United StatesSupreme Court has said are so
fundamentalthat anyperson in custody must be informed of
them beforea statement is taken. If a statementof an
incriminatingcharacterwas made to a law enforcementofficial
in any ofthe fifty-fourcaseswhile the personwas in detention,
it couldbe introduced intoevidence by the prosecutor at trial
over theperson's objection ifthejudge determined that itwas
made inthe presence of legal counsel, or that the person
knowingly andintelligentlywaived the rightto remain silent.
Courtshave heldrepeatedlythat languagedifficulties can
rendera waiver in~alid~~.
2.18 Further,none of the fifty-four couldbe kept in
prolongeddetentionunlesscharged with a crime and,once
charged,each wasentitledto be informed promptly and indetail
of thosecharges,and to a prompt determination that there was
probablecause to believehe committed the crime for which he
34
See,e.g., UnitedStatev. Garibay, 143F.3d 534, 537 (9th Cir. 1998),
Annex23, Exhibit 16("In determiningwhether a defendant knowinglyand
intelligentlywaived hisMirandarights, we consider, asone factor,any
languagedifficulties encountered bythe defendant duringcustodial
interrogation.");UnitedStatesHeredia-Fernandez,756F.2d 1412, 1415
(9th Cir. 1985),Annex 23,Exhibit 17("One precondition fora voluntary
custodialconfession isa voluntarywaiver of Miranda rights, andlanguage
difficultiesmay impair the abilityof a person in custodyto waivethese
rights ina free andaware manner."); UnitedStatv. Short,790F.2d 464,
469 (6thCir. 1986),Annex 23, Exhibit 18(where defendant's native
languagewas German and shehaddeficient usage and understandingof
English, without the assistanceof anslater herwaiverof Miranda
warningswasdeemed not to be knowingly and voluntarily given).See
generallyNorthCarolina v.Butler,441 U.S. 369, 374-375(1979), Annex
23, Exhibit 19(waiver of constitutionalrights is determinedby the particular
facts andcircumstances, "includingthe background, experiences,and
conduct ofthe accused" (quotationomitted)).was arre~ted~~.Thereafter,each of the fifty-four was brought
promptlybefore ajudge, who was responsible for explaining
the detainee's rightsandthe legal process, and for arranging for
legalcounsel if a lawyerhad not alreadybeen appointed36.
Theseappearancesbeforeajudge generallyoccur within
twenty-fourto forty-eighthours of anest and, in some
jurisdictions in theUnited States, are the point at which
competent authoritieshavedecided to provide foreign nationals
with Article 36 consularinformation3'.
2.19 Once charged,al1of the fi@-four defendants were
entitledto have adequatetime and opportunityto prepare a
defense and to consult withco~nsel~~.Throughoutthis process,
they were protected againstdiscriminationbased on race,
gender,ethnicity or national~ri~in~~.
2.20 The United Statesfederal and statecriminaljustice
systems aggressivelypreserve and vindicatethese rights, and
havedone so - or areinthe midst of doingso - in each of the
fifty-fourcases. Thecourtshave addressedor will address,
35See CriminalJusticeDeclarationp, ara.15, Annex 7;Bousley v. United
States,23 U.S. 614,618 (1998),Annex 23,Exhibit20; Gerstein v. Pugh,
420 U.S. 103, 114(1975),Annex23, Exhibit21; Countyof Riverside v.
McLaughlin, 500 U.S.44,53 (1991),Annex23,Exhibit22.
36Gideonv.Wainright, 372U.S.335,344-345 (1963),Annex23, Exhibit
23;Scott v. Illino440U.S.367,373-374(1979),Annex23, Exhibit24;
see alsCriminalJusticeDeclarationp , ara. 15, Anne7.
37See ComplianceDeclaration, para 4.4, Annex1andAppendix 3,Annex
1;Cases DeclarationA, ppendix10, Annex2 (JuarezSuarez informed at
arraignment).
38See, e.g., UnitedStates v. Woote688F.2d 941,949-950 (4thCir.1982),
Annex23, Exhibit25(federallaw,reflectingconstitutionadl ue process
requirement,providesthattrialnotcommencesoonerthan30 daysfromthe
datethedefendant firstappearswithcounsel).
39See United StatesConstitution, mendments5and14,Annex 23,Exhibit
14;see also Craig v. Boren429U.S. 190,210 (1976),Annex23, Exhibit
26;Loving v. Virginia388U.S. 1,11-12(1967),Annex23, Exhibit27;
Bollingv. Sharpe,347U.S.497, 500(1954),Annex23, Exhibit28.directly attrial or through appellateor collateral (habeas
CO~US)~ r~view, the very issuesthat Mexicoraises most
urgently in its Memorial:the adequacy ofcounsel (whether
privately hired or provided at governmente~~ense)~'; the
voluntariness of confessionsor other incriminatingstatements4';
and theobjective understandingby the defendantof his or her
~i~hts~~I.n the United States,the federal government and each
state statutorily guarantees that everyperson convictedof a
crime may appeal that convictionon any legal or factualbasis.
In capitalcases, some Statesmake such appeals mandatory
See Bounds v.Smith,430 U.S.817,821-822 ( 1977),Annex 23,Exhibit
29.
41
SeeCriminalJustice Declaration, paras.15,59, Annex7; Wiggins v.
Smith, 156L.Ed. 2d 471,472,493-495, Annex 23,Exhibit30(failureto
present mitigationevidence at capital sentencing proceeding constituted
ineffectiveassistance, required that sentencebe vacated);Ramirezv.State,
65 S.W.3d156,160(Tex. App.2001),Annex23, Exhibit31(reversing
conviction ofMexican national due to ineffective assistanceof counsel);
Morales v.State, 910 S.W.2d642, 646 (Tex. App.1995),Annex 23,Exhibit
32(same). See Mexico Memorial, paras. 72-78.
42 See,e.g.,Escobedo v.Illinois,378 U.S.478,490-491 (1964),Annex 23,
Exhibit33(overtuming murderconviction and excluding from evidence
incriminatingstatement by defendant of Mexican extraction where request
for counselwas ignored);People v.Montano,277 Cal. Rptr.327,336-337
(Cal. Ct.App. 1991),Annex23,Exhibit34(overturningmurderconviction
of Mexican nationaldue to police violation ofdefendant'sright to remain
silent). SeeMexico Memorial,paras. 56-60.
43See,e.g.,Reyes-Perez v.State,45 S.W.3d312,319-320 (Tex. App.2001),
Annex23,Exhibit35 (reversing convictionof Mexican nationaldueto lack
of knowingwaiver of nghts due to language barrier);Baltierrav.State,586
S.W.2d553,559 (Tex. Crim.App. 1979)(enbanc),Annex 23,Exhibit36
(overturning convictionof Mexican national ongroundsthat waiver ofrights
was not knowingand intelligent);People v.Marquez,756N.E.2d 345,350,
359(Ill.App.Ct. 2001), Annex 23,Exhibit37(allowing post-conviction
assertionofinvoluntarywaiver of rights of Mexican nationadl ue to
language difficulties);Statv.Ramirez,732N.E.2d 1065,1069-1070(Ohio
Ct. App. 1999),stay granted, 724N.E.2d 814(2000),causedismissed,725
N.E.2d 1154(2000), Annex 23,Exhibit38(reversing conviction of Mexican
nationaldueto inadequate understandingof rights). SeeMexicoMemorial,
paras. 56-60.irrespectiveof the wishes of the defendantM,and al1appeals
typically goto the state's highest court. Suchreviews serve to
safeguard againstthe possibilityof error, mistake,arbitrariness
or dis~rimination~~.
2.2 1 Judges are sensitiveto the special challengesfacedby
non-Englishspeakingforeignnationals in United States
criminaljustice systems, includingMexican nationalswhose
first languageis one other than English. Courts have repeatedly
held that defendantswho do not speak English are entitled to
the assistanceofan interpreteP6,and go to extraordinary
44 SeeCriminalJusticeDeclaration,paras. 28, 63, Annex 7;see also
Vikramaditya S.Khanna,"Double Jeopardy's AsymmetricAppeal Rights:
What PurposeDo They Serve?", inBoston UniversityLawReview,Vol. 82,
No. 2, 2002, Apr., p.345, Annex 23,Exhibit 39 ("The generalmle is that the
governmentmay notappeal an initial trial acquitta1save for a few limited
exceptions. Thedefense,however, may appeal convictions.")
45 See, e.g., Greggv.Georgia,428 U.S. 153, 188-195,204-206(1976)
(pluralityopinion ofStewart, Powell, and Stevens,JJ), Annex23,Exhibit
55.
46See,e.g., UnitedStatesex rel.Negronv.State ofNew York,434 F.2d 386,
390(2d Cir. 1970),Annex 23, Exhibit40 (criticizing inadequacyof
interpretationfor Spanish-speakingdefendant as "[p]articularly inappropriate
in this nation wheremanylanguagesare spoken ...[indicatingstate]
callousnessto the crippling languagehandicap of a newcomerto its shores,
whose lifeand freedom the stateby its cnminal processeschooses to put in
jeopardy".); UnitedStatesv.Lim,794F.2d 469,470-471 (9th Cir. 1986)
(per curium),Annex23, Exhibit41 (affirming Korean nationalcnminal
defendant'sright toa court-appointedinterpreter when his comprehensionof
the proceedingsor abilityto communicatewith counsel isimpaired);
ApplicationofMurga,631P.2d 735,737 (Okla. 1981),Annex 23,Exhibit 42
(affirminguse ofcourtfunds to hire interpreters for indigent Mexican
nationaldefendants);People v.MataAguilar,677 P.2d 1198, 1201 - 1203
(Cal. 1984),Annex23, Exhibit43 (same for Spanish-speakingMexican-
American); cf: Calderon-Palorninov.Nichols,36 P.3d 767, 770(Ariz. Ct.
App. 2001),Annex23, Exhibit44 (affirming state fundingfortranslation of
reasonably necessarydocumentsin supportof defenseof Mexican national
inmurder case). SeeMexico Memorial,paras. 39,49,54.lengths to addressthis issue47.Defendants also receivethe
assistance of investigatorsand experts - the kindsof persons
who canhelp developexculpatory and mitigationevidence,
regardless of the availabilityof consular assistance - wherethe
need for such assistancecanbe demonstrated4'. In addition to
excluding from evidenceincriminating statementsthat followed
involuntary or uninfonned waivers of ~i~hts~~ c,ourts have
waived procedural defaultrules to consider claims where
fundamental fairnessrequired it50,and have overturned
convictions wherethe rights of defendants haveothenvise been
violatedS1.
47 An example is offeredby the caseof Matilde Perez-Merino,case#100,
discussed in Appendix4 to the CornplianceDeclaration,Annex1. The
defendant spoke a dialect that requiredbringingan interpreterfirst from
California and then fromMexico.
4R Mexico is simplywrongin saying thatconsularassistanceis essentialto
ensure that exculpatoryand mitigatingevidence is developed. Compare
MexicoMemorial, paras.81-88with,e.g., Williamsv.Martin,618 F.2d
1021, 1026-1027(4thCir. 1980),Annex23, Exhibit45 (affirmingthe
obligation of the govemmentto providean expertwitnessonEqual
Protection grounds);People v. Watson,221 N.E.2d 645,648-649(Ill. 1966),
Annex 23, Exhibit46 (holdingthatdefendantwas entitledtohavethe state
pay for a handwritingexpert becauseit was necessarytoensurea fairtrial);
49e also 18U.S.C. 93006A(e)(l), Annex23, Exhibit47.
People v. Montano,227Cal. Rptr.327 (Cal. Ct. App. 1991),Annex23,
Exhibit34 (reversingconvictionof illegalMexican immigrant andexcluding
confessionobtainedthroughcoercivepolice questioning); cf:UnitedStates
v. Cruz,581 F.2d 535,542-543 (5th Cir. 1978)(en banc),Annex23, Exhibit
48 (excluding incriminatingstatementsby illegal Mexicanaliens obtainedas
a result of an unconstitutionalpolicestopand search).
50See, e.g., People v.Marquez,756N.E.2d 345, 349-350(111A . pp. Ct.
2001),Annex 23, Exhibit37(permittingMexicannationaltochallenge
voluntarinessof waiverof rightsoutof concem for "fundamentalfaimess"
51twithstandingdefaultof claims).
See, e.g., UnitedStatesv.Navarro Viayra,206 F. Supp.2d 1057,1066,
1068 (E.D. Cal. 2002),Annex 23,Exhibit49 (suasponteorderingnewtrial
of illegal Mexican immigrantswhereevidencedid notsupportjury verdictof
guilt).2.22 TheUnited States has established additional guarantees
in capital cases, including providingmultiple lawyerswith
experience incapital cases in some statesand in the federal
system, making available a greaternumber of peremptory
challenges of potential jurors duringjury selection, and making
greater provision for expert andinvestigative assistanceS2.At
the sentencingphase of the trial,capital defendants are
constitutionally permitted to introduce mitigating evidence -
often without regard to the strictevidentiary rules that applyto
determinations of guilt and innocence - that is relevant to the
circumstancesof the offense orto the defendant's own
background and character, andjurors are entitledto consider
that mitigating circumstanceasa reason for imposing a sentence
other than deathS3.Juries that are askedto recommend
sentencing in cases where acapital sentence is possible are
given special instructions about thealternative of life
imprisonmentwithout possibilityof parole where relevant".
All of the defendants in the fifty-fourcases have benefited from
these additional guarantees, as well as the opportunities for
judicial review described ab~ve~~.
2.23 The criminaljustice systemsof al1countries, however,
operate under various rulesthat seek to ensurethat criminal
cases will be resolved notjust fairly butalso promptly and
52See CriminalJustice Declaration,para. 63, Annex 7.
53See, e.g.,Eddings v.Oklahoma,455 U.S. 104, 110(1982), Annex 23,
Exhibit 50;Lockettv.Ohio,438 U.S.586,604 (1978) (plurality opinion),
Annex 23, Exhibit 51;McCoy v.NorthCarolina,494 U.S. 433,443-444
(1990), Annex23, Exhibit 52;Mills v.Maryland,486 U.S. 367,384 (1988),
Annex 23, Exhibit 53; Criminal JusticeDeclaration,paras. 61-62, Annex7.
54SeeSimmons v.SouthCarolina,512U.S. 154, 169(1994) (plurality
opinion of Blackmun, J.); 512U.S.at 177(concumng opinion of O'Connor,
J., Rehnquist, C.J.,and Kennedy,J.), Annex 23,xhibit 54.
55 See CriminalJustice Declaration,para. 63, Annex 7. In those fewstates
not providingfor automatic review, the defendant uniformlyhas the option
to appealthe conviction and sentence.de fini te The^U^nied Statesis no different. In furtherance of
the importantpublic interestin the orderly administrationof
justice, the legislaturesand the courts have craftedprocedural
rules designedto encourageboth prosecutors and defendants to
resolve al1factualissues at trial, and to raise al1relevant legal
issues atthe earliestappropriate stage in the proceedings,so that
they canbe resolved indispositiveways. Weredefendants
instead allowedto delay raising determinative issuesuntil
appellate orcollateralreview, a reversa1and requirementof new
trials on accountof errors that could have been correctedor
resolved beforeor at trial necessarilywould causeneedless
waste of lawenforcementandjudicial resources. Moreover,the
administrationofjustice would be compromisedas witnesses'
mernories fadedor critical evidencedeterioratedor was lost,
and courtswould be ovenvhelmed by the needto conduct
multiple trials ofthe same case. In addition,defendantswould
be givenextraordinaryand unchecked power to slow down the
process. The legal consequenceof failing to observethe
requirementto raise a claim at the first opportunity,without a
cognizableexcuse,is thereforethat many - but notal1- claims
not raisedin a timely way aredeemed defaulted and are
precludedfrom fùrtherconsiderationin the laterstages of the
case57.
2.24 Thepreclusionrules aretempered in the United States,
however,in severaldifferentways. First, evena defaulted
56Rulescommonto most legal systemsconcerningthetreatmentof
procedural errorson appealand theeffect of procedural errorson the finality
ofjudgrnentsare explainedin the Declarationof ProfessorThomasWeigend
Concemingthe Compatibilityof Mexico'sSubmissionswithRules of
CriminalProcedureFollowedby National and IntemationalCriminalCourts
(hereinafter, thisdeclarationwillbe referred to as the "Weigend
Declaration"), paras.6,Annex3;see also CriminalJusticeDeclaration,
at paras.-48,Annex7.
57See CriminalJusticeDeclaration,paras. 43-48, Annex7; Weigend
Declaration, para.25, Annex 3.claim may be subsequentlyrevivedupon a showing of good
cause for the failure toraise the issue earlier - such as newly
discovered evidenceor ineffective assistanceof counsel- and
of serious prejudice tothe defendant's cause". Second, the
Supreme Courthasexpressly held that thefailure to raise an
ineffective assistanceof counsel claimon direct appeal doesnot
bar considerationof sucha claim at an appropriate post-appeal
proceeding59.Thefailureof counsel toraise an alleged breach
of Article 36 mayformthe basis for ajudicial finding of
ineffective assistanceof counsel and,if the shortcoming caused
seriousprejudice to the defendant, may provide a basis for
relief. For example,in Valdezv. ~klahorna~~,the Oklahoma
court vacated the deathpenalty and ordereda new sentencing
procedure becauseValdez's trial counselfailed to uncover
significant evidencethat was subsequentlydiscovered through
the interventionandassistanceof the Mexicanconsulate. The
court found that,althoughValdez was not entitled to reliefon
the procedurally-defaultedVCCR claim,his attorney's failure
to enlist the assistanceof the Mexicangovemment in
assembling mitigationevidence causedsubstantial prejudice
that required resentencing.
2.25 Thesejudicial rights and proceduresare supplemented in
the United Statesby executive clemencyprocesses. The
Supreme Courthasrecognized that clemencyis an important
component ofthe systemsin those states that provide for capital
punishment6'. Theclemencyprocess isdescribed more fully in
Chapter VI.D,wherewe explain how the United States is
58See CriminalJusticeDeclaration, paras.8, 58, Annex7; UnitedStates v.
Frad?.456 U.S. 152,167-168 (1982),Annex 23,Exhibit56.
59See CriminalJusticeDeclaration,para.59, Annex7;Massaro v. United
States,55L. Ed. 2d 714,(2003),Annex23, Exhibit57.
60 Valdezv. State46 P.3d703 (Okla.Crim.App.2002), Annex23, Exhibit
58.
6'See Herrera v. Collin506 U.S.390,414-415 (1993), Annex23, Exhibit
59.complyingwith the principlesunderlyingthis Court's decision
inLaGrand, and why it is entirely appropriatefor the United
Statesin cases in which breachesof Article36 of the VCCR
have occurred to provide "review and reconsideration ofthe
conviction and sentence by taking account ofthe violation of
the rights set f~rth"~~in theVCCR through the clemency
process.
2.26 Inthose cases where,by operation ofthe rules, courts
are unableto correct what appearto be errorsor mistakes, the
clemencypower provides anultimate haven, unboundedby
legal or procedural technicalitiesand amenableto appealsto
conscience,morals, equity,and fairness andto petitions against
error, mistake, artifice or prejudice. Clemencyis availablein
each of the ten states inwhichthe fi@-four persons whose
cases Mexico has brought to this Court havebeen c~nvicted~~.
D.TheUnited StatesHasConsistently Made GoodFaith
Efforts toImplementtheVCCR
2.27 Sincebecoming partyto the VCCR in 1969,the United
States has continuously soughtto ensure that its arrestingand
detainingofficiais complywith the obligationsof Article 36.
Moreover,the United Stateshas significantlyintensified its
effortsto comply with its obligations sinceit became
particularly aware in the mid-1990sof casesof foreign nationals
receivingcapital sentenceswho were not properly informed that
they couldrequest consularnotification, and inlight of this
Court'sdecision in ~a~rand6~. These effortshave been
comrnendedas "setting the standard" for otherc~untries~~ and
62
63LaGrand,Judgment,para. 128(7).
SeeClemency Declarations (Statesof Arizona,Arkansas, California,
64onda, Illinois,Nevada, Ohio, Oklahoma, Ore, exas),Annexes 8-17
65SeeLaGrand,Judgment,paras.124,128(6).
ComplianceDeclaration, para.47,Annex 1.have improved observance of Article36 procedures to the
extent that Mexicanconsular officershave even expressed
concem that they will be overwhelmedwith notificationsb6
Initially, compliance with consularnotification
2.28
obligations was not a significant issue in the bilateral
relationship betweenthe United States and Mexico. Beginning
around 1974,however,the United Statesbecameconcemed
about a large numberof United Statescitizens arrested in
Mexico and the manner in which they had been tried, the
conditions under which they were imprisoned, and the ability of
United States consular officers to providethem with consular
assistance. In many cases, consular notification requirements
had not been observedand consular access had beendenied or
delayed. As the United States pushed Mexicoto improveits
consular notification practice, Mexicocountered by pushing the
United States to dothe same. As a result, the Department of
State between roughly 1976and 1981undertook a special effort
to educate law enforcement officials at al1levelsb7.
66 Compliance Declaration,paras. 47-48, Annex 1.
67 See ComplianceDeclaration, at paras. 10,Annex 1. As explainedthere,
Mexico for its part undertookto notify ourconsularicers of arrests, but
noted thatit could not ensure compliance in al1caSee.Letterfrom Henry
A. Kissinger, Secretaryof Stateof the UnitedStatesoferica,to Alfonso
Garcia Robles,ForeignMinister of the Mexico, 16Feb. 1976(regarding
conditionsfor Americansin Mexican prisons),and thelettersent in response
by Alfonso Garcia Robles,Foreign Ministerofthe Mexico, to Henry A.
Kissinger, Secretaryof State of the United Statesof America, 25 Mar. 1976,
Annex 23, Exhibit 121. The Garcia Roblesletternoted that, "With respect
to aliens, agents of the Office of the AttomeyGeneral have categorical
instmctions to informthe consul concemed of anyarrest as soonas it is
made. ... We cannot,however, expect that irregularitieswill not
occasionally be committed,especially when arrests occur in remoteparts of
the country. In such casesthe competent authoritieswill take al1necessary
measures to correct the irregularities."
In the same letter, Mexico also suggested negotiation ofa prisoner
transfer agreement, underwhich citizens of onecountry sentencedin the2.29 Inthe 1980s,thenumber of casesof possiblenon-
compliancebrought to theattention of the United Stateswas not
large,particularlygiventhe number of foreignnationals and
foreignconsularofficesinthe United States. Throughoutthis
period theUnitedStatesmaintained a consistentpracticeof
addressingsuchcasesinthe customary way - investigation,
apologyvia a diplomaticnote when appropriate,and
undertakingsto tryto correctidentified shortcomingsand to
minimizeany likelihoodof repetition. Mexicowas aware of
capitalcases that involvedpotential breachesof Article36, but
did not bt-ingthemto theattention of the State Department. Nor
did itadvisethe UnitedStatesof any significantconcern
regardingUnitedStatescompliance in this period. Had it done
so,the United Statescouldhave taken stepsto addressthem,
just as it had donepreviously68.
2.30 It thereforewasnotuntil 1992and 1993that the United
Statesbegan leamingof foreignnationals facing capital
punishmentwhohadnotbeen given consular informationas
requiredby Article3669.In 1996and 1997,the United States
leamed of specificMexicannationals whose executionswere
imminent. In recognitionof the importanceof theVCCRand
the seriousnessof capitalsentences,the United Statesnot only
investigatedthecapitalcasesbrought to its attention and
apologized,whenappropriate,but it alsoundertook in its
other could, withthe consentofal1parties, be transferredto servetheir
sentencein the homecountry. Id. Throughout the subsequentnegotiations,
there was no suggestionthatanysentence would be revisiteduse of a
failureto complywithconsularnotification requirements. The prisoner
transfertreaty was concludedin Nov. 1976. Treaty on the Executionof
Penal Sentences,25Nov. 1976,United States of America-UnitedMexican
States,28 U.S.T. 7399(hereinafter,this treaty will be referred to as "Treaty
68 the Execution ofPenalSentences"), Annex, Exhibit 72.
69ComplianceDeclaration,paras. 12-13, Annex 1.
ComplianceDeclaration,paras. 14-15,Annex 1.discretion to ask stateclemencyauthoritiesto consider the fact
that the VCCRhad been breached,and any representations from
the foreign govemment concemed, inthe context ofthe
clemency process as onepossiblyrelevant factor inconsidering
the appropriate outcome of aparticularcase7'.
2.31 In addition, the UnitedStates intensified its effortsto
promote compliancewith Article36, including in 1996by
specifically askingthe Statesto notiQ Mexico of al1cases in
which Mexican nationals were detainedand might face capital
punishment7'. In 1997,itbeganplanning a major new outreach
program72.That programwas officially launched atthe
beginning of 1998whenthe Secretaryof Statebroadly
disseminated to federal and state authoritiesa new, 72-page
manual entitled ConsularNotificationandAccess:Instructions
for Federal,Stateand LocalLawEnforcement andOther
Oflcials Regarding Foreign Nationalsin the UnitedStates and
theRights of ConsularOflcials toAssist ~hern~' and a pocket-
size reference card, designed tobe camed by individual
70
See Compliance Declaration, para.18,Annex 1and Annex 1,Appendix
5. As explainedthere, Mexico's descriptionof the United States response to
sometwenty capitalcasesbrought tothe Department of State's attentionby
Mexicois inaccurateandmisleading. TheCompliance Declaration also
explainsthat Mexicois wrongin suggesting,Mexico Mernorial,paras. 275-
279,that, because clemency was denied, theDepartment of State's requests
in such cases were ignored.
7'Compliance Declaration, paras.16-17, Annex 1.
72Compliance Declaration, para.19,Annex1.
73United StatesDepartment ofState,Officeof the LegalAdviser, document
10518,1998,Jan. (hereinafter,this documentill be referred to as the "State
Department Manual"), Annex21. The Manual containsbasic instructions
for complying with consular notificationrequirements. It includes a
suggestedstatementto be given toa foreignnational from a country
governedby the VCCR,which istranslatedinto thirteen languages,
including Spanish. TheManualalsoincludesa suggested fax sheet for
providingnotificationwhenrequired.SeeId. at pp. 3-4, 7,9, and 25-39,
Annex2 1.arresting officers,regarding consularnotification obligations74.
Over 100,000copies of the manual androughly 600,000 pocket
cards are now incirc~lation'~. In addition,the Department of
State has createdother significant trainingtools, including a
video (produced in cooperation with consular officers from
Mexico as well as Australia and Canada)designedto convey to
law enforcementaudiencesthe importanceof consular
notification, and a poster with multipletranslationsof the
Department's suggestedstatementto foreignnationals about the
option of consularnotification. The Departmentalso maintains
an active internetweb page with consular notification
information and conducts extensive consularnotification
training and outreach programs around the United States - some
in cooperation with Mexican consular officia~s'~.
2.32 The Department works with foreignconsular officers on
these issues, and has worked particularlycloselywith Mexico,
helping the MexicanEmbassy to designa card that Mexico now
distributes to Mexicans in the United States, andconducting
numerous programs along the United States-Mexicanborder
designed to improvecompliance. Theseprograms demonstrate
the commitment of the United States to canying out its
obligations under the VCCR,and its particularcommitment to
facilitatingeffortsof the Mexican Governmentto provide
assistanceto its nationals in the United tat tes^^.
2.33 The effortsof the United Stateshave hadan impact.
Throughoutthe United States, state and local governments have
responded by undertaking efforts to improvetheir compliance
with consularnotification requirements. Consistentwith the
federal structureof the United States, andthe enormous
74CornplianceDeclarationp,ara.20, Annex1.
75Id. atpara.23.
77Id.atparas.21-41andAppendices 1and2.
Id. atparas.33-36,39-41.diversity among its states and,within the states,its law
enforcementjurisdictions, these efforts are resultingin a variety
of implementation methods. Afewjurisdictions have
incorporated consular informationinto their statements of
Mirand aights, as Mexico would like, but mosthave not.
Somestates have incorporatedconsular notification procedures
into their booking procedures,as the Departmentof State has
recommended. Others havedecided that they can more reliably
comply by standardizing procedures at the pointof
arraignment7'. Al1of these measures are fùllyconsistent with
the requirements of Article 36,and al1are resultingin improved
observance of Article 36(1)(b)79.
''Id. at paras. 42-51andAppendix3.
79Id. at paras. 46-51. In this regard, Mexico's allegationsof systematic
continuedviolations of Article 36, Mexico Mernorial, paras. 159-168,are
unfounded. The relatively small and statistically insignificantnurnberof
specificxamples cited by Mexicoin support of thisallegationinvolvemany
casesin which the detained individualwas provided consularinformationas
requiredbut declined to havehis consularicers notified,as well as cases
of persons identified as United StatescitiSeeCornplianceDeclaration,
paras. 52-55, Annexand Appendix4, Annex 1. CHAPTERIII
THE COURTLACKSJURISDICTIONTO DECIDE
MANYOFMEXICO'SCLAIMS
3.1 This Court'sjurisdiction tohear anddecide cases
dependson the extent to which each sovereignState has iven
itsconsent to decidea genuineand definedlegal dispute8'. The
Court'sjurisdiction in this casederivesfromArticle 36,
paragraph 1of the Court's Statute,and Article 1 of the Optional
Protocolto the VCCR, inwhich the UnitedStates and Mexico
haveagreed that this Court shalldecide"[d]isputes arising out
of the interpretationor application"of that treatythat may anse
betweenthem8'. As describedbelow, however,Mexico's
submissionsask theCourt to decidequestions that do not arise
outof the interpretationor application ofthe VCCR and that the
United States has never agreedto submitto this courtg2. The
Courthas nojurisdiction to address suchquestions, and the
United States objectsto those portionsof Mexico's claims.
3.2 While Mexico'sMemorialstatesMexico's claimsin
termsof United States obligationsunderthe VCCR, it is
apparent thatthe Memorial is morefundamentallyaddressedto
thetreatment of Mexican nationals in the federaland state
80
SeeBorderand TransborderAmed Actions, (Nicaraguav.Honduras),
JurisdictionandAdmissibility,Judgment,I.C.J.Reports1988, 75-76,
para. 16;Sirerald Fitzrnaunce, TheLawandProcedure ofthe
International CourtofJustice, Vol.2,pp.436-437(1986),Annex 23, Exhibit
60.
Optional Protocol,VCCR,Annex23,Exhibit 1.
Italso goes without saying that theCourt shouldnot decide issuesthat fa11
beyond thefour cornersof the final submissionof Mexico. See, cg.,
Requestfor Interpretationof theJudgment20November, 1950inthe
AsylumCase,Judgment,I.C.J.Reports1950,p. 402("it is the duty of the
Court notonly to reply tothe questionsas stated in the final subrnissionsof
theparties, but also to abstain fromdecidingpointsnot included in
submissions").criminaljustice systems of the United States and,more broadly,
to the operation of theUnited States criminaljustice systems as
a whole. Thus, on the basis ofan asserted connectionto the
obligationsof the United States under the VCCR,Mexicoseeks
to have this Court decide such fundamental questionsas the
timing of interrogations of suspects in the United States under
federal,state and local lawenforcement procedures,the
admissibilityof evidence in United States criminalcases, and
the rules to govem the vacatingof convictions and sentences in
the United States by federal and state courts. Mexico's
invitationto the Court to make far-reaching andunsustainable
findingsconceming the United States criminaljustice systems,
andto impose requirementsthat have no supportin the VCCR
should be rejected, as it would be an abuse ofthe Court's
jurisdiction.
3.3 In addition, the Courthas nojurisdiction under the
Optional Protocol to give any effect to the firstsubmission of
Mexico,which should thereforebe rejected. Thatsubmission
requeststhe Court to declarethat: "the United States,in
arresting,detaining, trying,convicting, andsentencingthe
fi@-four Mexican nationals on death row described in
Mexico'sApplication and this Memorial, violatedits
international legal obligationsto Mexico ... as provided by
Article36 of the Vienna on vent ion "h'^.verreaching
characterof this assertion is best understood if the acts Mexico
allegesare wrongful are considered separately.
3.4 First, Mexico assertsthat the United Statesbreached
Article36 by "arresting" thefifty-four alleged Mexican
nationals. Article 36 of the VCCR, however, creates no
obligationsconstraining the rights of the UnitedStatesto arrest
a foreignnational. The obligations created by Article 36 arise
only after a foreign national hasbeen arrested orothenvise
83MexicoMemorial,para.407 (emphasisadded).detained. Any dispute conceming the arrest of a Mexican
national,therefore, is manifestly outside thejurisdiction ofthe
Court.
3.5 The same conclusion is appropriatewith respect to
Mexico's assertionthat the United Statesin "detaining" these
Mexican nationals has breached Article36. Detention of a
foreign national may be a predicate forthe application of
Article 36, but Article 36 itselfdoes not create any obligation
with respectto the conduct of a State Party "in detaining" a
foreignnational. The "detaining" of Mexican nationals,
accordingly, is not before the Court. The Court may properly
consider an assertion by Mexico that theUnited States didnot
properly provide consular informationto Mexican nationals in
detention, but the Court may notconsideran assertion thattheir
detention itselfwas wrongful.
3.6 Similarly, the remainder ofthe actions complainedof in
Mexico's first submission,the "trying, convicting and
sentencing" offifty-four alleged Mexicannationals for the
crimes for which they were convicted,are not within the
jurisdiction of the Court. The "trying, convicting and
sentencing" ofMexico's nationalswere steps undertakenby the
United Statesthrough its state criminaljustice systems, which
stepsare not before the Court. If the United States breachedits
obligations under Article 36 of the VCCR, such breach may
have taken place during the period thatthe Mexican nationals
were subjectto the various states'criminaljustice systems,but
the "trying, convicting and sentencing"of foreign nationals
cannotthemselves constitute breachesof the VCCR. Mexico's
claims should be limited to specificassertions of conduct
inconsistentwith United Statesobligations under the VCCR,
and the Court should not engage,at Mexico's invitation,in a
generalized review of the operation ofthe United States
criminaljustice systems, includingallegations regarding its
innate faimess or its consistency with basic principles of dueprocess.
3.7 Mexico's fourth submission seekingdeclarations
likewisefalls outside the Court's mandateto the extentthat it
failsto raise a disputed interpretationor application of the
VCCR. Itgoes without saying thatthe United States is
responsibleunder international lawfor its actions and thoseof
itsconstituent parts, including itscourtsand its States,to the
extentof any breaches of the internationalobligations ofthe
United States. This is not a point the UnitedStates has
contested.
3.8 Mexico's submissionsinrespectof remedies also
substantiallyoverreach the Court'sjurisdiction. It fallsto the
Courtto interpret the VCCR andto statewhat remedy is
required,as a matter of international law, in aparticular case. It
then fallsto the parties to implement theCourt's decision in the
contextof their own municipal legal stems^ Bu t Mexico's
first and second submissionswould havethe Court go far
beyondits appropriate roleof determiningthe requirementsof
the VCCR and into a draftingandpolicymakingrole with
respectto the municipal legal systemsof the United States.
3.9 Mexico's first submission seekingremedies wouldhave
the Court require the United States to takespecific actsin its
municipalcriminaljustice systems with respectto the casesof
fifty-fouralleged Mexicannationals andotherunnamed
Mexican nationalss5. This would intrudedeeply into the
independenceof those courtsby interveningin on-going
litigationor by reopening settledcases86.It would alsohave
84
SeeHayade la Torre,Judgment,I.C.J.Reports1951,pp.78-79;Northern
85meroons,PreliminaryObjections,Judgment,I.C.J.Reports 19637..
86SeeMexicoMemorial,para.407.
ThisCourthasalwaysbeenrespecthloftheindependenceofjudgeson
themunicipalench. Cf:DlfferenceRelating toImrnufrom Legal
Processofa Special Rapporteurof theCommissiononanRights,this Court declare that theUnited States is under a specific
obligationto vacate the convictions and sentencesof the fifty-
fournamed persons. But the Court has nojurisdiction under the
OptionalProtocol to review the appropriateness of the sentence
of any of the fifty-fourindividualsnamed in Mexico's
Memorialand even lessto determinethe guiltor innocence of
anyof them. Questionsof that character are of no relevance
whatsoever in this case,and only a court of criminal appeal
could appropriately go intothem. This Court shouldonce again
rejectthe invitation to become a court of criminalappeal,
renderingdeterminations of guilt and penalty87.
3.10 Mexico's secondsubmission seeking remedies would
havethe Court declarethat the United States is under an
obligation to take "al1legislative,executive, andjudicial steps
necessary" to ensure a sweepingrange of undertakings in its
municipal criminaljustice systemg8.Much of Mexico's second
submission in respect of remedieswould ask this Court
effectivelyto rewrite substantiveand procedural municipal
criminal law and rulesof appellate and collateral procedure in
the United States. In the United States, these policy choices are
determined by the legislaturesof the fifty states, which have
jurisdiction over the majority of the criminal lawin the United
States,by the courts, and occasionally by the United States
Congressthrough, for example,the legislation of federal
criminal law or the initiationof the constitutionalamendment
process. Mexico, however,should not requestthis Court to
AdvisoryOpinion,I.C.J.Reports 1999,p. 90, para.67(4)("[Tlhe
Governmentof Malaysia hastheobligationto communicate this Advisory
Opiniontothe Malaysian courts ,norderthatMalaysia'sinternational
obligationsbegiveneffectand[theSpecialRapporteur'si]mmunity be
respected".)
" See ViennaConventionon ConsularRelations (Paragua,~ v. UnitedStates
ofAmerica), Order of 9April 1988,I.C.J.Reports 1998,p. 257,para.38
(hereinaftert,hisorderwillbereferredto as"Breard").
" SeeMexicoMemorial,para.407.make suchpolicy choices forthe United ta tes* T^he Court
should statewhat the VCCRobliges its StatesParties to do, but
it has no proper role to determinehighly specific means by
which a State Party shouldimplementthose obligations as a
matter of municipal law,nor should it rewrite theConvention to
establish requirementsthatgo beyond the fourcorners of the
original textgO.The Court lacksjurisdiction underthe VCCR to
evaluate the efficacyof the UnitedStates federaland state
criminaljustice systems,or to determine whetherthey are
administered in a fashionthat comports with international or
municipal legal principles ofsubstantive and proceduraldue
process. There are appropriatefora in whichsuchquestions can
be and are regularly considered anddetermined,but the
Optional Protocol doesnotmakethis Court oneof them.
3.11 Finally, the Court lacksjurisdiction to determine
whether or not consular notificationis a "humanright", or to
declare fundamentalrequirementsof substantiveor procedural
due process9'. This Court'sjurisdiction underthe VCCR7s
Optional Protocol doesnotreachthese questions,nor allow this
Court to create new rightsthatwould fundamentallyand
substantivelytransform theVCCR into somethingthe drafters
89
SeeSouthWestAfrica,SecondPhase,Judgment,I.C.J.Reports1966,p.
48, para. 89 ("[Tlhe Court isnota legislativebody. Itsdutyis to apply the
law as it finds it, notto makeit.")
90 The Courthas repeatedlymadeclearthat treaty interpretationcannot bea
vehicle for revisingtreaty obligations,nor for readingintothem what they
did notcontainexpresslyorbyclear implication. See,e.g.,Certain
Expensesofthe UnitedNations(Article17,paragraph2,oftheCharter),
Advisory Opinion,I.C.J.Reports1962,p. 159;South West frica. Second
Phase,Judgment,I.C.J.Reports1966,p.48, para. 91;Oppenheim's
InternationalLaw, Vol.1,Parts2-4,p. 127& n.4 (R.Jenning& A. Watts,
eds.,992)(hereinafter,thisbookwillbe referred to as"Oppenhe's"),
Annex23,Exhibit61.
9'InLaGrandthe Courtdeclinedto considerGermany'scontention thatthe
requirementsof theVCCRhad "assumedthe characterofa human right."
LaGrand,Judgment,para.78.did not have in mind. CHAPTERIV
THIS COURTSHOULDFINDSIGNIFICANTASPECTS
OF MEXICO'S APPLICATIONAND SUBMISSION
INADMISSIBLE
4.1 The existenceofjurisdiction does not, alone, openthe
door to this Court's resolutionof a dispute. The Court has
repeatedly recognizedthat there are instances in which it would
be imprudent for it to intervene in disputes not susceptible of
effective resolutionwithout oversteppingproper judicial
bounds, as well as in issues that could,were the Court to
address them, risk compromising the integrity of the Court's
judicial characterand fun~tion~~.These prudential
considerations are "circumscribed by inherent limitationswhich
are none the lessimperative becausethey may be difficultto
catalogue, and maynot frequentlypresent themselves as a
conclusive bar to adjudication in a concrete case. Nevertheless,
it is always a matter for the determinationof the Court whether
itsjudicial functionsare in~olved"~~.Before proceeding, the
Court should weigh whether characteristicsof the case beforeit
today, or specialcircumstances relatedto particular claims,
render either the entire case, or particular claims, inappropriate
for further consideration and decisionby the Court. Assessing
admissibility involves carefulanalysis of the particular
characteristics of cases and claims,the positions of the parties,
the role and responsibilities of the Court in the international
system, and the application of the Statute and Rules of the
92See Northem Cameroons,PreliminaryObjections,Judgment,I.C.J.
Reports 1963,p.29;Military andParamilitaryActivitiesInandAgainst
Nicaragua(Nicaraguav. UnitedStatesofAmerica), Jurisdictionand
Admissibility,Judgment,I.C.J.Reports 1984,9, para.84;Shabtai
Rosenne,The LawandPractice of theInternationalCourt. 1920-1996:
Jurisdiction, Vol.II,pp.546-547(1997),Annex23, Exhibit62.
93Northem Cameroons,Preliminary Objections,Judgment,.C.J.Reports
1963,p. 30.Court.
4.2 Mexico's submissionsinat leastfiverespects raise
mattersthat the Court cannot or shouldnot attempt to resolve.
First,Mexico's submissionsshouldbe foundinadmissible
becausethey seekto havethis Court functionas a court of
criminalappea194.There is no other apt characterization of
Mexico'stwo submissions inrespect of remedies. Under this
Court'sholding inLaGrand,if Mexicois ableto prove that
therehave been oneor more breaches ofArticle36, the Court
shoulddecide whether the UnitedStates providesreview and
reconsideration. As set out in detail in this Counter-
~ernorial~~,the United Statesallows thisreview and
reconsiderationin the operationof itsjudicial system andthe
executive clemency process. Thereis no basis for the Court to
considereach case involvingabreach separately,once it is
satisfiedthat the review and reconsiderationcalledfor in
LaGrandis availablein any casewhere abreach of the VCCR
is al~e~ed~~.
94
The Court inBrearddisclaimedanywillingnesssoto be used,see
Breard,p. 257, para. 38,and it crafteda remedyinLaGrandthat kept itwell
clearof any such function. SeeLaCrand,Judgment,para. 52. Mexico's
submissionindicatesthat it believes thisCourtwasistakeninLaGrand
whenit reiterated its holdinginBreard. See generallyMexico Memorial,
Chapter VI,paras. 346-406.
95 SeeinfraChapterVI.D.2-3.
96 See,e.g.,Dispute ConcemingAccesstoInformationUnderArticle 9of
theOsparConvention,(Ireland v.UnitedKingdomof GreatBritainand
Northem Ireland),FinalAward, 2July2003, PermanentCourt of
Arbitration(Declarationof Prof. Reisman),para. 14,availableut
http://www.pca-cpa.org/ENGLISH/RPC/OSPAR%20fina1%20award%
20revised.pdf,Annex 23,Exhibit63("Statesmustensurethat their
municipallaws enablefull effecttobegivento theconsularrightsand
obligationsenumeratedin Article36(1).... The onlyinternationalclaim
thatliesunder Article36(2)]is thattherespondentStatefailed to ensure
thatitsmunicipal lawwas createdor structuredinsucha way as to
accomplishthe objectivesprescribedbythe Convention. A direct claimfor
failureto accomplishthoseobjectivesina specificcase...does not lie4.3 Mexicotries to make it appear thatits requested
automatic and categoricalremedy, vacatingconvictionsand
sentences where a breach ofthe VCCR hasoccurred,will
likewise require no case-by-case parsingoffacts. Mexico may
have settledon this proposedremedy preciselyto make it more
appealing to the Court in lightof the reluctancethe Court
properly expressed inBreardto immerseitselfinto the business
of criminal appeals. But if Mexico's radicalremedy wereto
become the rule, itshould beexpected thateverycriminal
conviction of a foreign national for a senous felonywill be
brought to this Court routinely - and notjust againstthe United
States. Mexico would askthis Court to reconcileconflicting
facts and decide,for example,whether the UnitedStatescourts
correctly decided that anincriminatingstatement wasmade
before an arrestor afier,or whether the defendantwas informed
that he could requestconsularnotification andopted against it,
or was not informed atail, orwhether andwhen an individual
claimed he was a citizen of the receiving State.
4.4 Moreover,were this Court in somewayto calibratethe
remedies soughtby Mexico - that is, to adopta more
individualized remedy than the automaticrulesMexico
demands - then it would be put in the untenable positionof
substituting its ownjudgrnent for that of UnitedStatesofficiais
in reviewingand reconsideringthe facts and law relevantto a
conviction and sentence in light of an allegedbreachof Article
36.
4.5 Second,the Court shouldfind inadmissibleMexico's
claim to exerciseits right of diplomaticprotection on behalfof
any Mexican nationalwho has failed to meetthe customary
legal requirementof exhaustionof municipal remedies.
becausethatis nothowthespecificobligationimposedbytherelevanttreaty
provision isframed").onstruingLaGrand,Judgment).Exhaustion is a well-establishedprinciple of internationallaw9',
and it is well-settled that failureto exhaust municipal remedies
renders such a claim inadmis~ible~~.The importance of
exhaustion has been aptly explained byJudge Cordova, inhis
separate opinion inthe Interhandelcase:
The main reason for itsexistence lies in the
indispensable necessityto harmonize the
intemational and thenationaljurisdictions -
assuring in this way the respect due to the
sovereignjurisdiction of States - by which
nationalsand foreigners haveto abide and to the
diplornatic protection of theGovemmentsto
which only foreignersare entitled. This
harmony, this respect forthe sovereignty of
States is brought about by giving priority to the
jurisdiction of the localcourts of the State in
casesof foreigners claiming against an act of its
executiveor legislativeauthorities. This priority,
in tum, is assured only by means of the
adherenceto the principle of exhaustion of local
97 SeeInterhandel,PreliminaryObjections,Judgment,I.C.J.Reports1959,
p. 27; ChittharanjanF. AmerasingheJurisdictionofInternationalTribunals,
p. 259 (2003),Annex 23, Exhibit64; Fitzmaurice, supra note 80 atp. 686,
Annex 23,Exhibit60. The Courthas found the exhaustion requirementso
importanta principle of customaryinternational law that it held thatthe
requirement of exhaustion maynot beassumed to have been dispensedwith
under a treaty unless that treaty expresslyso provides. ElettronicaSicula
98P.A.(ELSI),Judgment,I.C.J.Reports1989,p. 42, para. 50.
See Amerasinghe,supra note97 at pp.284-285, Annex 23, Exhibit64;
Fitzmaurice,supranote 80 at p.691, Annex 23, Exhibit 60; International
Law Commission, Dra3 articlesontheResponsibilityof Statesfor
internationallywrongfîulacts adoptedby theInternationalLaw Commission
at its 53rd session,SupplementNo. 10(A15611O),2001, Nov., art.44(b),
Annex 23, Exhibit65.4.6 This Court has emphasized that, notonly is exhaustion
of remedies a fundamentalrequirement of international law,
"[a]fortiori the rule mustbe observed whendomestic
proceedings are pending ..."1O0.
4.7 The requirementof exhaustion of claims in international
law encompasses both procedural defaultand the timely raising
of claims. When a person fails, for example,to sue in national
courts before a statute of limitations has expired,the claim is
both procedurally barred in national courtsand inadmissible in
internationaltribunals for failure to exhaust localremedies.
Arbitral cases such as~rnbatie1o.s'~ m'ake clearthat, where the
breachcould have been challenged in a timely fashion at the
state level - but was not - the fact that in suchcircumstances
the challengecould not be made at the federallevel breaches no
rule of international law.
4.8 Knowledge of therequirements of Article 36(l)(b) may
well exist in fact, in the defendant, inhis lawyer,or in his
government, regardless ofwhether the receiving State itself
provided consular informationand notification. Certainly
knowledgemust be presumed in any case where Mexican
consularofficers had actualknowledge of adefendant's
-
99 Interhandel,Preliminaty Objections,I.C.J.Reports1959,p. 45 (Separate
qinion of Judge Cordova).
1O Interhandel,Preliminaty Objections,Judgment,I.C.J.Reports 1959,p.
27.
101SeeAmbatielos Claim,(Greecev.UnitedKingdom),12U.N.R.I.A.A. 83,
1956,pp. 83, 122 ("It wouldbe wrong to hold thata party who, by failing to
exhausthis opportunitiesin the Court of first instance,has caused an appeal
to become futile shouldbe allowedto rely on this fact inr to rid himself
of the rule of exhaustion of localremediés."),Annex23, Exhibit 66. See
also Cardotv.France,200 Eur. Ct. H.R. (seriesA) para. 34 (1991), Annex
23,Exhibit67; Barberà,MesseguéandJabarodo v.Spain, 146Eur. Ct. H.R.
(seriesA), para. 59 (1988),Annex23, Exhibit 68.detention because, as Mexicoasserts repeatedly,when it learns
of a case, Mexicoprovides legal assistance to thedefendantlo2.
Yet, in at least elevenof the fifty-four cases beforethe Court
today, even withthe provisionof consularassistance,the
defendant failedto raise a VCCR claim attria1103.
4.9 Failureof exhaustioncannot be excusedon the basis of
some generalized argument that pursuit of suchremedieswithin
the United States systemwouldbe pointlessbecausethey are
unlikely to yield favorableresults. AsJudge Lauterpacht
obsewed, the exhaustion requirementmayonlybe dispensed
with when itis "conclusively proven"thatmunicipalremedies
would be refùsed. In othercircumstances,"howevercontingent
andtheoreticalthese remediesmay be, an attemptought to have
been made toexhaust them"lo4. As Judge Fitzmaurice
explained: "what there mustbe a reasonable possibilityof is the
existence of a possibly effectiveremedy, and ... the mere fact
that there is noreasonablepossibility of theclaimant obtaining
that remedy,because his caseis legally unmeritorious,does not
constitute the type of absenceof reasonable possibilitywhich
'O2 See, e.g.Mexico Memorial, paras.34-39 andAnnex7,paras.4-15, 30-
32; Annex7, AppendixA, paras.20, 37, 74,360.
'O3For example,#3 Benavides(failedto raise VCCRclaim attrial despite
Mexican consulateleaming of detentionapproximatelysixmonthsbefore
trial);7 EsquivelBarrera (consulateleamedthrough mediacoverageand
had contactwiththe defendantpriorto trial, but noclaimwasraised);14
ManriquezJaquez(consulateleamedtwo yearspriorto trial, butfailed to
raise VCCRclaimsat trial);#39 MorenoRamos (failed toraise VCCRclaim
at trial or on appeal,piteMexicanconsulateleamingof his case before
trial);#49 CamargoOjeda (failedto raise VCCRclaimsat trial, in direct
appeals, and inpost-convictionproceedings,espiteMexicanconsulate's
leaming of hiscase fourmonths priorto trial);#54ReyesCamarena(failed
toraise VCCRclaim at trialdespiteMexicanconsulateleamingof his case
seven monthsbefore trial);ee als#6 CovarrubiasSanchez,#9 Hoyos,#22
Salcido Bojorquez,#27 Verano Cruz,and #29 ZamudioJimenez,al1of
whom similarlyfailed toraise a VCCRbreachat trial.
'O4See CertainNonvegian Loans,Judgment, I.C.J.Reports 1957, p. 39
(Separate Opinionof Sir HerschLauterpacht).will displace the localremedies nile'"105A . ccordingly,it would
be for Mexico to showthat, asto eachofthe fifty-fourcases in
which remedies were notexhausted, therewas nopossibly
effective remedy inthat particular case. This Mexicohas not
done, nor could it. Thecourts and the clemency boards sit
precisely for this purposeand, as demonstratedinfra, they do
render effective remedies. This cannotbe gainsaidon the basis
of Mexico's complaintthat the remediesdo not entai1automatic
suppression of evidenceor granting of new trials or sentencing
hearings.
4.10 In sharp contrastto Germany's approachin~a~rand'~~,
Mexico ignores thisdifficulty entirëly. This is not surprising,
since Mexico has attachedno proof that each of the alleged
Mexican nationals hasraised the VCCR argumentin available
judicial and administrativeproceedingssince becomingaware
of a possible breachof United Statesobligationsunderthe
VCCR.
4.11 In addition tothe inadmissibilityof the claimsofthose
ofthe fifty-four namedMexican nationalswho didnot raisethe
alleged breach of the VCCRobligation in their casesoncethey
were aware of it, thereis the furtherpoint that al1ofthe fifty-
four cases are inadmissiblebecause local remediesremain
available in every case. As explained indetail in ChapterVI1of
this Counter Memorial,fi@ of the fi@-four casesarestill
pending before UnitedStates courts. And in al1casesclemency
review remains a possibilityor, as inthe three Illinoiscases,has
already resulted incommutations of sentences. Theclemency
'OSFitzmaunce,supranote80atp.694 (emphasisinoriginal),Annex23,
Exhibit60.
'O6SeeLaGrand, (Germanyv.UnitedStates ofAmerica),Memorialof the
FederalRepublicof GermanyV , ol1,pari5;OralArgumentL , aGrand,
(Germany v. UnitedStatesofArnerieu),CR2000/27(Simma),pariVIII,
para.6; Oral ArgumentL,aGrand,(Germany v. UnitedStateof America),
CR2000130 (Simma),partII,paras.8-9.processallows the defendantsto request review and
reconsideration of theirconvictions or sentencesin light of any
breachof Article 36. Insofar, therefore, as Mexico claims that
the United States has failedto provide reviewand
reconsideration of a conviction or sentencein any of these fifty-
fourcases, local remedieshave not been exhausted and the
Courtshould find the claiminadmissible asthe purported lack
of reviewand reconsideration is not yet ripefor review.
4.12 The third respectin which Mexico'sclaims are
inadmissiblerelates to those of the fifty-fournamed Mexican
nationalswho were nationalsof the United States at the time of
theirarrest or detentionIo7.We are unaware ofany dispute over
the principle that the obligationsof Article 36pertain only to
personswho are not nationals of the receivingState. It may be
that Mexico has simply beencareless inthisregard, but it has
not established in its Memorial that it may exercisediplomatic
protectionbefore this Court based on breachesof Mexico's
rightsestablished by the VCCR with respectto those of its
nationalswho are alsonationals of the United tat tes"' I.the
absenceof any such showing, its claims inrespect of such
nationals should be rejected.
4.13 The Mexican claim is inadmissible in a fourth respect.
'O7See infranote 334andaccompanyingtext.
'OsThe abiliîy of a Stateto assertclaims on behalfof its nationals who are
also nationalsof the Stateagainstwhich the claimiserted is limitedto
contextsin which the national hadnghts that were owedbut breached. In
thecontextof the VCCRa receivingState assumesno obligations vis-à-vis
its ownnationals, and therefore thequestion of assertinga claim based on a
breach ofthe VCCR withrespectto its own nationaldoes not anse. In any
event,thisCourt has madeclearthat a State mayasserta claim on behalfof
a nationalagainst another Statewhose nationalitytheson also holds only
iftheperson's"real andeffective"nationality is thatof the claiming state.
Nottebohm,Second Phase,Judgment ,.C.J. Reports1955,p. 24. Even ifthe
VCCRdid give Mexicorights withrespect to dualnationals,Mexico has
made noshowingof real andeffective nationality.The Court should notpermit Mexicoto pursue a claim against
the United Stateswith respect to any individual casewhere
Mexico hadactualknowledgeof a breach of the VCCR but
failedto bring suchbreach to the attention of the United States
ordid so only afterconsiderabledelay109.Had Mexico
promptly raisedsuch cases with the United States,there would
have remained thepossibility of corrective action bothin
particular cases, andmore generally. Mexico's frequent
failures,over a periodof many years, to bnng these cases to the
attentionof UnitedStates authoritiesin a way that indicated
concem about itsability to provideconsular assistanceto its
nationals contributedto the situationof which Mexiconow
complains,by creatingthe clearimpression that the United
Stateswas meetingits obligationsto Mexico underthe VCCR,
as Mexico understoodthem1I0.
4.14 The Mexicanclaim is inadmissible ina fifth respect.
Mexico shouldnot be allowed to invoke against the United
Statesstandardsthat Mexico doesnot follow in itsown
practice. Basicprinciples of administration ofjustice and the
equality ofStatesrequire that both litigants be held accountable
to thesamerulesunder international law" '. Mexicocannot
--
'O9SeeCertainPhosphate LandsinNauru,(Nauruv.Australia),
PreliminaryObjections,Judgment,I.C.J.Reports 1992,p.253,para.32
("The Courrtecognizesthat,evenintheabsenceof anyapplicabletreaty
provision,delayon thepartof alaimantState mayrenderanapplication
inadmissible");itzmaurice,upranote80 atp.439, Annex23, Exhibit60
(notingthatsubstantiveadmissibilityof aclaimhas been challeng"on
groundsof unduedelayinbringing it");ee also Internationl aw
Commission, Draj articleson theResponsibiliv of Statesfor internationally
wrongfiulcts adopredby the InternationalLaw Commissionut its S3rd
session,SupplementNo. IO(A/56/10),2001,Nov., art.45 (Lossof theright
toinvokeresponsibility),Annex23, Exhibit65.
IIISeeCornpliance Declaration,para.13,Annex 1.
See.e.g.,Diversion ofWaterfrom theMeuse,Judgment,1937,P.C.I.J.,
SeriesA/B,No. 70,p.20 (treatytobeinterpretedso asnotto imposeaseek application againstthe United States of allegedstandards
forcompliance under VCCR Article 36 that it evidentlydoes
not accept for itself. The Courtnoted in LaGrandthat: "Article
36of the Vienna Conventionimposes identicalobligationson
States, irrespective of the gravity of the offenceaperson may be
chargedwith and ofthe penaltiesthat may be imposed""2. If
Mexico is to assert thatbreachesof Article 36inthe context of
serious crimes risking severepenalties entitle defendantsto the
extraordinary remedies Mexicoseeks, then Mexicomust
demonstrate that its systemof criminaljustice toorequires
remedies such as suppressionof evidence or annulmentof
criminal convictions or sentences in cases inwhicha foreign
national defendant is facing serious charges or severepenalties
on the basis that Mexicohas failed to meet its obligationsunder
Article 36 without delay.
4.15 Quite the contrary,Mexico's Memorial spends
considerable effortdiscussing vacatur and exclusionaryrules in
severaljurisdictions and in the practice of severalinternational
tribunals. But it notablyomits any discussionof Mexican law,
except for one brief mention in Paragraph 376and
accompanying footnote459, which merely recordsthat al1
evidence must be consistent with Mexicanlawandthat, since
the early 1990s,Mexican lawexcludes confessionsunless they
are given in fiont of Mexico's PublicMinistryor ajudge and in
the presence of counselor a person of confidence. This law
does not expressly excludea confession undercircumstancesin
which Article 36has beenbreached. Moreover,Mexicanlaw
does not require thepresenceof a consular officeras a
prerequisite to thetakingof a defendant's statementor its
significantlygreaterburdenon anyone partythanontheother, absent
manifestcontraryintentionof theparties).
'12LaGrand,Judgment,para.63.admissioninto evidence'I3. In orderto sustain its burden here,
Mexico must demonstrate, at aminimum, that it wouldprovide
to foreignnationals accused ofmurder or other serious crimes,
where suchdefendants have notbeen informedof the
requirementsof the VCCR, vacatur of any conviction or
sentence,and exclusion at a newtrial of al1evidence takenby
Mexicanauthorities after the breachoccurred. This Mexico
cannot do. In fact, although Mexicanlaw generally requiresthe
immediatenotification of a detainedforeignnational's
consu~ate~~t~ h,ere is not a single recordedcase in Mexicothat
has resultedin the exclusion of evidence - much less the
vacationof a conviction or remittalof sentence - where the
requirementof Article 36was not met1'*.
Il3SeeDeclarationof Dr. JesiisZamoraPierce, (hereinafter, this declaration
will be referred to as the "Zamora Pierce Declaration"),para.x5.
Il4SeeLeyesyCodigos de México,CodigoFederal de Procedimientos
Penales,art. 128.1V(1995), Annex23,Exhibit 69.
Il5SeeZamoraPierce Declaration,para25, Annex 5;Declaration of
AlexanderRichards (hereinafter, thisdeclaration will be referrede
"Richards Declaration"), para. 13,Annex6. CHAPTERV
THE LAGRANDJUDGMENT SETSFORTHTHE
PRINCIPLESAPPLICABLETO THEDISPUTE
PRESENTEDTO THE COURT
5.1 In this case,the Court is askedto interpretandapplytwo
specific provisions of theVCCR. First, Mexicoplaces inissue
Article 36(l)(b), whichprovides for any foreign nationaltaken
into custody by a State Partythat:
1. With aviewtoward facilitatingthe exercise
of consular functions relatingto nationals of the
sending State:. ..
(b) if heso requests, the competent
authorities of thereceiving State shall,without
delay, informthe consular post of the sending
State if, withinits consular district, a national of
that State is arrestedor committedto prison or to
custody pending trialor is detained in any other
manner. Anycommunication addressedtothe
consular postby the person arrested, inprison,
custody or detentionshall be fonvarded bythe
said authoritieswithout delay. The said
authorities shallinform theperson concerned
without delayofhis rights underthis
subparagraph.
Mexico asserts that theconcluding sentencein Article36(l)(b)
requires that a personbe informed of the possibilityof consular
notification imrnediatelyand before he or she is questioned1'6.
According to Mexico,if the detainedperson so requests,the
consularofficer must then be notified immediately,againbefore
the detainee is questioned. Finally, Mexicowould require that
116
See Mexico Memonal,paras.191-199.the questioningnot be initiateduntil after the consular officer
hasdecidedwhether or not to render consularassistance.
Mexicoeven appears to go so far as to suggestthat, if the
consularofficer declinesto respond, questioningmay not
occ~r"~. A failure to comply with Article 36(l)(b), Mexico
claims,shouldbe remediedby baning use of any statement
takenfrom him or her that precedes these ~te~s"~.The United
Statesdisagrees.
5.2 Second, Mexicoasserts a dispute involvingArticle
36(2),which provides:
2. The rights referredto in paragraph 1of this
article shall be exercised in conformitywith the
laws and reguiationsof the receiving State,
subject to the proviso, however, that the said
laws and regulations must enable full effect to be
given to the purposes for which the rights
accorded under this article are intended.
Mexicocontends that the proviso of this paragraph requires that
the lawsof the United States - and presumably of al1States
Partiesto the VCCR - mustprovide that, in al1cases in which
consularinformation is not provided immediately and before
any statementis taken, the foreign national is entitled to a new
trial inwhich any statementhe or she has providedbefore
receivingconsular informationis excluded from evidence1I9.
The UnitedStates once again disagrees.
5.3 This Court haspreviously construed Article 36,
includingthe appropriateremedy for breachesof it, in the
LaGrand case. LnLaGrand, the competentarresting authorities
117SeeMexicoMemorial,para.321.
Il8SeeMexicoMemorial,paras.374-380.
119Seegenerally MexicoMemorial,paras.357-380.believed that theLaGrandbrothers were United Statescitizens
at the timeof their 1982arrest. The United Statesconceded,
however, that competentauthoritieswho later assumed
responsibility forthe brothers' detentionmay haveknown that
the brothers were in factGerman, andnot United States,
citizens before their trialand certainly before they were
sentenced in December1984,yet did not provide themwith
consularinf~rmation'~~.Moreover,German consularofficiais
did not infact learnabout the brothers' detention until 1992.
The Court found that,"by not informing Karl and Walter
LaGrandwithout delayfollowing their arrest of theirnghts
underArticle36 paragraph l(b), ofthe Convention, and by
therebydeprivingthe Federal Republicof Germanyof the
possibility,in a timely fashion, to render the assistance provided
forby the Conventionto the individualsconcemed", the United
Stateshad breached itsobligationsto Germany andto the
LaGrandbrothersunderArticle 36(1)(b)I2'.
5.4 InLaGrand, the brothers'claims that Arizonahad failed
to comply with Article36(l)(b) were raisedjudicially intheir
firstfederalhabeas petition but were rejected (in 1995)on
groundsof proceduraldefault becausethey had notbeen raised
in priorstate courtproceedings, which had ended before
Germany hadactualnotice of the LaGrands' situation12*.The
Courtfurtherconcluded that,"by not permitting the review and
reconsideration,in light of the rights set forth in the
Convention,of the convictions andsentencesof the LaGrand
brothersafterthe violations [of Article36(l)(b)] ... had been
''OSeeLaGrand,Judgment,paras. 15-16;UnitedStates Departmentof
State,Karland WalterLaGrand:ReportofInvestigationintoConsular
NotificationIssues,Feb. 2000, submittedas Exhib1to the United States
CounterMernorialinLaGrand(hereinafter,this report willbe referred toas
the "LaGrandReport"),pp.4-8,Annex 23,Exhibit 79.
'''SeeLaGrand,Judgment,para. 128(3).
12'SeeLaGrand,Judgment,paras. 17-23.established", the UnitedStateshad breached Article36(2)123.
That is, the proceduraldefault rule as appliedinthose two
specific cases had occasioneda breach of Article36(2)by
preventing review andreconsiderationof the convictionand
sentence that gave fulleffectto the purposesof Article36(l)(b).
The Court stated expresslythat it had not foundthat any United
States law, whether substantiveor procedural,wasinherently
inconsistent with the obligationsof the United Statesunder the
VCCR. "[Tlhe violationof Article 36, paragraph2, was caused
by the circumstances inwhich the proceduraldefaultrule was
applied, and not by the rule as ~uch"'~~.
5.5 Finally, in addressingthe question of remediesfor these
breaches, the Court tooknote of the commitmentofthe United
States to improve cornpliancewith Article 36(l)(b) but held
that: "should nationalsof the Federal Republicof Germany
nonetheless be sentencedto severe penalties,withouttheir
rights under Article 36,paragraph l(b), of the Convention
having been respected, theUnited Statesof America,by means
of its own choosing, shallallow the reviewandreconsideration
of the conviction and sentenceby taking accountof the
violation of the rights setforth in thatonv vent ion"'^^.
5.6 The Court'sjudgment in LaGrandthusdeterminedthat
Article 36(2) should beunderstood in part asa remedial
provision where therehasbeen a breach of Article36(l)(b).
Where a national of a StateParty is not informedof the
requirements of Article 36(l)(b), receiving Statelaws and
regulations must nevertheless enable "full effect tobe given to
the purposes for which therights [were]accorded"under
'23LaGrand,Judgment,para.128(4);see alsoLaGrand,Judgment,para.91.
Iz4LaGrand,Judgment,para.125.
12'LaGrand,Judgment, para.128(7).Article 36126.More specifically,"review and reconsideration"
would meet this requirement of giving full effect,and is the
remedy decreed by the Court fora breach of Article 36(l)(b)
wherethe individual subject tothe breach has been sentencedto
prolonged detention or severepenalties'27.
5.7 The Court's decisionsareonly binding on the partiesto
the case before it, and the decisionin one case has no
necessarilydeterrninative functionin later cases involving
differentparties'2s. The United Stateshas nonetheless followed
the guidance,contained in the separateDeclarationof then-
President Guillaume, that the principles and reasoning of the
Court's decision in LaGrandshould be taken into account in
futurecapitalcases alleging breachof the VCCR. President
Guillaume stated, with respectto paragraph 128(7) of the
126VCCRart. 36(2), Annex 23, Exhibit 1;see also LaGrand,Judgment,
p127. 91.
SeeLaGrand,Judgment,para. 125.
12*See Statuteof the InternationalCourtof Justice, 26June 1945,59 Stat.
1055,art. 59 (hereinafter, this Statutewill be referred to as the "I.C.J.
Statute"). Article 59rovides that adecision"has nobinding force except
betweenthe parties and in respect ofthatparticular case", I.C.J.tute,art.
59,but it isell-settled that a decisionmay serve as authoritybeyonda
particularcase. Indeed, were there nopossibilityof anyeffect beyond
parties to a particular case, there wouldbe no need for the Statute'sprovision
permittinga State to request to intemenein a case where it considers"that it
has an interestof a legal nature whichmay be affectedby the decisionin the
case". I.C.J.tatute, Article 62. Moreover,there is nodoubt that the Court
considersitsprevious decisions whenevaluatingcasesbefore it. See
MohamedShahabuddeen,Precedentinthe WorldCourt,pp. 26-31(1996),
Annex 23, Exhibit 70;Rosenne, TheLawandPracticeofthe International
Court,supranote 92 at pp. 1609-1611,Annex 23, Exhibit62; Oppenheirn S,
supranote 90 at pp. 1268-1269n.5A ,nnex23, Exhibit61. The Statute
expresslydirects the Court, in consideringand decidingcases, to apply
"subject to theprovisions of Article 59,judicial decisionsand the teachings
of the mosthighly qualified publicistsof the various nations,as subsidiary
means for the determination of rulesof law". I.C.J. Statute,art. 38. This
surelyincludesthe Court's own decisions.Court's dispositif,that: "subparagraph(7) does not address the
position of nationalsof other countiesor that of individuals
sentencedto penalties that are notof a severe nature. However,
in orderto avoid anyambiguity, it should be madeclearthat
there canbe no question of applying an a contrario
interpretationto this paragraph"129.Evidently the President,
knowingthat there are many StatesParties to theVCCR,
wished toadvisepotential litigants that similar casesbrought to
the Courtshould expectto receive the same remedythe Court
orderedinLaGrand. Mexico's suggestion thatLaGrand's
treatmentof the remedy issue was insome way incomplete
(becausethe LaGrandshad beenexecuted while Mexico's
nationalshavenot) flies in the faceof this Declaration,which is
directedspecificallyto the remedy and announcesthat the Court
doesnot expect thatissue to be litigated againl3'. This
Declarationmeansthat, while theCourt's decisioninLaGrand
couldnotbe legallybinding on parties in other cases,the
Court's reasoning regardingthe required remedyfora breach of
Article36(l)(b) would not be contradicted in futurecases.
PresidentGuillaume's statementsets forth a clearjudicial
policyand reflectsthe long-standingpractice of thecourtI3'. It
129
LaGrand,Judgment(Declarationof PresidentGuillaume).
I3OTheMexican positionalso ignoresthe fact that reviewand
reconsiderationis obviouslya remedydirected to futurecases, notto the
casesof theLaGrandsthemselves.
131See LandandMaritimeBoundaryBetweenCameroonandNigeria,
PreliminaryObjections,Judgment,I.C.J.Reports 1998,p.292,para. 28("It
istruethatin accordance withArticle 59,the Court'sjudgmentsbind only
thepartiesto and inrespectof a particularcase. Theren[thus]be no
questionofholding Nigeriato decisionsreachedby the Courtinprevious
cases. Thereal questionis whether, inthis case, there iscausenot to follow
thereasoning andconclusionsof earliercases."); Applicationfor Review of
JudgmentNo.273ofthe UnitedNationsAdministrativeTribunal,Advisory
Opinion,I.C.J.Reports1982, p. 355,para. 57(answer to legalquestion
beforethis Court"mustdepend not only uponthe termsof Article11,but
alsouponseveralotherfactors including,first of all, the Court'sStatute, [as
wellas]thecase-lawof the Court ...".)AegeanSea ContinentaS l helf:shouldbe followedby the Court in this case. The reasoningled
the Court to concludethat "review andreconsideration" wasthe
appropriateremedyfor Germannationals in the event of a
breach of Article36. It wouldlikewisecounsel that review and
reconsiderationis theappropriateremedy for similarly situated
Mexican nationals. Thenationality of theunderlying
defendants is irrelevantto the appropriateremedy. A different
interpretationofArticle36 in this case wouldundermine the
consistencyoftheCourt'sreasoning andcase law, damagethe
Court's credibility,and introducean elementof confusion into
relations betweenStates Partiesto the VCCR.
5.8 As noted,theUnited States and Mexico disagree
fundamentallyontheinterpretationof Article 36(l)(b) and
36(2). The CourtinLaGrandinterpretedArticles 36(l)(b) and
36(2). The UnitedStateshas adheredto that interpretationand
itsapplicabilityhere. Thus,the question is "whether, in this
case,there is causenot tofollow the reasoningand
conclusions"'32ofLaGrand. The United States does not agree
thatbreaches ofArticle36(l)(b) and 36(2)occurred in eachof
- -
Judgment,1.C.J.Reports1978,pp. 16-17, para. 39("[allthough under
Article 59 of the Statute'thedecisionof the Courthas no binding force
except between thepartiesand in respect of thatparticularcase', it is evident
thatany pronouncement ofthe Courtasto the statusof [a treaty], whetherit
were found to be a conventionin forceor to be no longerin force, mayhave
implicationsinthe relations betweenStatesotherhan" those before the
Court);Nottebohm,SecondPhase,Judgment,I.C.J.Reports 1955,p. 22
("Thesame issueisnowbefore theCourt: it mustbe resolved by applying
thesame principles.");Rosenne,TheLaw andPractice of theInternational
Court,supra note92 atpp. 1628-1631,Annex 23,Exhibit62; Oppenheim S,
supranote 90at pp. 1268-1269n.5,Annex 23,Exhibit61; cJ:Certain
GermanInterestsinPolishUpperSilesia,Merits, JudgmentNo. 7,1926,
P.C.I.J.,eriesA, No.7,p. 19(purposeof Art. 59 of Statute "is simplyto
preventlegal principlesacceptedby the Courtin a particular case frombeing
binding uponotherStatesor in other disputes").
132
LandandMaritimeBoundaryBetweenCameroonand Nigeria,
PreliminaryObjections,JudgmentI ,.C.J.Reports 1998,p. 292, para. 28.the fifty-fourcases brought beforethis Courtby Mexico.
Despitethis, the United Statesiscomplyingwith the remedy
articulatedin LaGrand, whichprovides for case-by-casereview
and reconsideration of the conviction and sentencein cases
where thedefendant is sentencedto severepenalties,taking
accountof any breach of Article36(l)(b). TheUnited Statesis
providingthis remedy in the eventof brea~hes'~~.In noneof
the fifty-fourcases reviewed in Mexico's Memorialhas itbeen
shownthatthis remedy is unavailable; indeed,in three of them
the sentenceshave already beencommuted, taking into account
the allegedbreaches of Article36'34.
5.9 Mexico's Memorial professesa commitment to the
principlesarticulated inLaGrand, but it doesnot accept them.
Mexico'sposition is that anybreach of the concluding clauseof
Article36(l)(b) of the VCCR, however insignificant itsimpact
on the course of a case, must result in a new trialor sentence
and, in addition, that any evidence,such as statementsor
confessions,givenby a foreignnational in custodyprior to
receivinginformation about consular notification shouldbe
deemedautomatically inadmissible and excludedfiom evidence
in any These extraordinaryremedial requests are
premisedon an unsustainable interpretationofthe obligations
imposed byArticle 36(l)(b) and 36(2), as wewill demonstrate.
'33SeeOral Argument,AvenaandOtherMexican Nationals,(Mexicov.
UnitedStatesofAmerica), CR200312(Taft), p. 10,para. 1.10. ("TheCourt
madeclearinLaGrandthat theUnitedStatescouldusemeansof its own
choosingto allow review andreconsideration. In the wakeof LaGrand,we
havechosenmeans that have succeededin securingreviewand
reconsideration inevery casewhena consularnotificationviolationhad
occurredandthe death penaltywas tobe imposed.1canassurethe Court
thatthe UnitedStates will continueto employsemeasures, whichhave
provedeffectivein every case sofar andwhich thereno basis to believe
will not beeffective in futurecases.").
'34Theseare #45 Caballero Hemandez,#46 FloresUrban,and #47Solache
Romero. SeeCases Declaration,correspondingAppendices,Annex 2.
SeeMexicoMemorial, paras. 346-380,407.They are also fündamentallyat odds with the remedy prescribed
by the Court inLaGrand. Mexico clearlydoes not acceptthis
Court's conclusionthat United States laws onprocedural
default are not inherentlyinconsistent with the receiving State's
obligations underthe VCCR'~~.Thus, Mexico plainly invites
the Court to considerwhether it erred fundamentally in
LaGrand. The United States submits that the Court should
adhere to the remedythat it adopted in that case and reject
Mexico's requestto change it.
'36See Mexico Mernorial,paras.226-235. CHAPTERVI
THE UNITEDSTATESCOMPLIES WITH ALLOF THE
OBLIGATIONS UNDERARTICLE36 OF THE VCCR
6.1 In this Chapter, theCounter-Memorial willdiscuss the
obligations createdby Article 36,]dent@ the two core disputes
between the Parties aboutthe applicationof Article36, and
explain why the United Stateshasofferedthe correct
interpretation. The principleselaborated in the Court's decision
inLaCrandsupport this interpretation. This section will also
explain how the United Stateshas acted to address its
obligations under the VCCR,and why it is in full compliance
with Article 36(2).
A. The Rulesof Treaty Interpretation
6.2 The Vienna Conventionon the Law ofTreaties,in an
article reflecting customaryinternationallaw, Statesthat a
treaty: "shall be interpretedin good faith in accordancewith the
ordinary meaningto be givento the terms of the treaty in their
context and in the lightof its object and purpose"137.The
context for the purposesof interpretationcomprises "the text,
including its preamble andannexes"138.The VCLT further
provides that there "shall betaken into account,togetherwith
the context ... [alny subsequentpractice in the application of
the treaty which establishestheagreementof the parties
regarding its interpretation"and "any relevant rules of
'37Vienna Conventiononthe Lawof Treaties,23 May 1969,art. 31(1),
1155U.N.T.S. 331,Annex 23,Exhibit71(hereinafter,this Convention will
be referred to as the "VCLT");accordPolishPostal ServiceinDanzig,
Advisoy Opinion, 1925,P.C.I.J.,SeriesB.No. II, p. 39. The UnitedStates
has not ratified the VCLT;however,it recognizes thatmanyof its provisions
reflect customary international law.
'38VCLT, art. 31(2), Annex23,Exhibit71. Also relevantare related
agreements, if they exist (which,inthe case of the VCCR, theyinternational lawapplicable in the relationsbetween the
parties"'39. Theway in which States Parties(or at least a great
number of them)carry out their obligationsunder the VCCR is
highly instructiveas to what they understoodthe VCCR to
require of them,since States Parties customarilyare presumed
to carryout their treaty obligations in goodfaithI4O.As
explained infra n,ither the text nor Statepractice supports
Mexico's readingof either Article 36(1)or 36(2); indeed,they
show that Mexico'sreading is untenable'".
The interpretation of the text may beconfirmed by
6.3
reference to supplementary means "includingthe preparatory
work of the treaty and the circumstancesof its conciusion
.. .7,14. Thus,the Court may seek guidancefrom the travaux
139 VCLT, art.31(3),Annex 23,Exhibit 71. Inthatsame sub-article,the
VCLT providesfor thetaking into accountof "anysubsequentagreement
between the partiesregardingthe interpretationof thetreaty or the
applicationof itsprovisions". There is no suchgenerallyapplicable
subsequentagreementregardingthe interpretationor applicationof the
VCCR. Mexico hascited selectivelyto some oftheUnited States
congressionalproceedingsrelated to the bilateralpnsoner exchangetreaty
concluded betweenthe United Statesand Mexico(Treatyon the Execution
of Penal Sentences,upra note 67, Annex 23, Exhibit72), see, e.g., Mexico
Memorial, para. 198. That treaty is addressedinthis CounterMemorial,and
evidences an understandingof the importof breachesof Article 36of the
VCCR inconsistentwith Mexico's positionhere. Seeinfranote 288and
accompanyingtext.
140See, e.g., Cornpetenceof theIL0 inRegardtoInternationalRegulation
of the ConditionsofLabourofPersonsEmployedinAgriculture,Advisory
Opinion. 1922,P.C.I.J., Series B,No. 2, pp. 1;Cor& Channel,Merits,
Judgment,I.C.J.Reports 1949, p. 25;International Status of SoWest
Africa, AdvisoryOpinion,I.C.J.Reports 1950,pp. 135-136;TempleofPreah
Vihear,Merits,Judgment,I.C.J.Reports 1962,pp. 34-35, CertainExpenses
of the UnitedNations(Article 17,paragraph 2, oftheCharter),Advisory
Opinion,I.C.J.Reports1962,pp. 157-161.
14'See infraat ChapterV1.B-C.
14'VCLT, art.32,Annex 23, Exhibit 71. This provisionof the VCLT
likewise reflectscustomaryinternationallaw.when the text of the treatyis not itself sufficientlyc1ea1-I~~A.s
will be explained, Mexico'sproposed interpretations findno
supportin the travaux either.
B.Mexicohas Misconstruedand OverstatedtheObject and
Purposeof Article36
6.4 The object andpurpose of the VCCR isto "contribute to
the development of friendlyrelations among nations,
irrespectiveof their differingconstitutional and social
stems"'^ Th^e.Conventionemerged from an effort tocodifi
"consular intercourse and immunities" practiced at thetime, and
its drafters believed that it would contribute to the development
of friendly relations amongnations, irrespectiveof their
differingconstitutional and social systems. The Convention's
seventy-nine articles addressa wide range of issuesassociated
with the everyday conductof consular relations. The articles
cadi@fundamental principles, such as the inviolabilityof
consularpremises andthe establishment of consular posts,
ensuringprivileges and immunities, facilitating communications
betweenthe receiving State and consular officers,determining
the applicability of localtaxes, and the like.
'43ASthe Court has made clear,where the "text is sufficient...[the
Court]does not feel that it shoulddeviate fromthe consistentpractice ofthe
PermanentCourt of InternationalJustice, accordingto which thereis no
occasionto resort to preparatorywork if the text of a conventionis
sufficientlyclear in itself'. ConditionsofAdmission of aSrateto
Membershipin the UnitedNations(Articl4of theCharter),Advisory
Opinion,I.C.J. Reports 1947-1948,p. 63;see also "Lotus",1927,P.C.I.J.,
SeriesA, No. 10,p. 16;Competenceof the GeneralAssemb1,fvor the
Admissionofa State tothe UnitedNations, Advisory Opinion,I.C.J.Reports
1950,p. 8.
'" VCCR,fourth preambularparagraph,Annex23, Exhibit 1. The subject
of theVCCR, it shouldbeborneconstantly in mind, is consularrelations
betweenStates, not theoperationof nationalminaljustice and law
enforcementsystems. Noris itthe establishmentofmanrights.6.5 With that contextinmind, the United States agrees with
Mexico that consularofficersrnay serve important functions
when foreign nationalsaredetained. The assistance that
consularofficers rnayofferdetainees, at leastin the United
States, is wide-ranging. Theyrnaymake contact and facilitate
communications with familyand fiiends; they rnay monitor the
conditions of detentionto ensure that adequate food, clothing
and medical care areprovided;they rnaymonitor criminal
proceedings to see thata fairtrial is granted;they rnay arrange
for legalrepresentationofthe detainee;they rnayassist the
detainee's attorneysinhiringexperts or gathering mitigating
evidence. In some otherStates, however, theconsular officer's
role is considerably morecircumscribedby receiving Statelaw
or traditi~n'~'.
6.6 Consular officersrnayalso, in some cases, serve as a
"cultural bridge"146.Mexicoin fact highlightsthis function, and
undoubtedly a consul canprovide important informationto the
detainee who is unfamiliarwith the legal systemof the
receiving stateI4'. Butthis aspect of consularwork should not
be given the central importancethat Mexico's Memorial
attaches to it in the courseof its effortto paint a picture of
Mexican nationals intheUnited States with nomeaningful
understanding of the legalsystem in which they find
themselves. In fact,whethera consular officerserves as a
'45For example, China,theRussianFederation, and SaudiArabia al1impose
significant restrictionsontheabilityof the consularer to discussthe
underlying factualor legal casewith the detaineeduringthe pendency of the
trial.ee Declaration of AmbassadorMaura A.HartyConceming State
Practice In lmplementingArticle36 of the Vienna Conventionon Consular
Relations(hereinafter, thisdeclarationwill be referredto as the "State
Practice Declaration"),para.35,Annex 4.
'46See Mexico Memorial,paras.49-71and Annex 28, p.A407; 7 Foreign
A airs Manual 401, Annex23,Exhibit 74.
17
'See Mexico Mernorial,Annex28, pp. A407,A411;7 Foreign Afiirs
Manual 401,412, Annex23,Exhibit74."culturalbridge" willdepend onhow longthe national has lived
in thereceiving State and whathis or her experience there has
been. It is difficult to seethe relevanceof the consular officer
as a "cultural bridge",for example,in a case in which a detainee
has lived inthe receiving State foralengthy period, or has had
previousencounters with its criminaljustice system, as is the
casewith at least forty-sixof the fi@-four cases before the
148 Examplesof such personscan readily befoundamongthe fi@-four
casesbeforethe Court:#I AvenaGuillen(livedin the UnitedStateseight
yearsandextensive juvenilecriminalrecord);#2 Ayala(lived mostof his
lifeintheUnited Statesandextensive criminalrecord);#4 Carrera
Montenegro(moved to the United Stateswhentwo-years-oldandhad prior
conviction);#5 Contreras Lopez(movedto UnitedStateswhensix-years-
old);#8 GomezPerez (movedto the UnitedStates when seven-years-oldand
extensivecriminalrecord);#IOJuarezSuarez (livedin UnitedStates
intermittentlyfortwelveyears);#Il Lopez(livedin the United Stateseight
yearsand severalprior convictions);#12LupercioCasares(livedin the
UnitedStateseighteenyearsand severalpriorconvictions);#13 Maciel
Hemandez(moved to theUnitedStateswhenthree-years-oldand extensive
criminalrecord);#14 Manriquez Jaquez(lived inthe United Statesfor
approximately10years andnumerouspriorarrests);#15 FuentesMartinez
(livedinthe United Statesforat least12years andprior murderconviction);
#16 MartinezSanchez (moved totheUnitedStates when one-year-oldand
severalpriorconvictions);#17 Mendoza Garcia (lived inthe United States
for 15yearsand prior arrests);#18 OchoaTamayo (movedto the United
Stateswhenapproximatelythree-years-old and severalprior convictions);
#19 ParraDueiias(livedintermittentlyintheUnitedStatesfor at least 18
yearsandrecordof priorminoroffenses);#20 Ramirez Villa (moved to the
UnitedStatesat approximatelyone-year-oldandextensivecriminalrecord);
#21Salazar(moved to the United Stateswhenone-year-oldand numerous
pior arrests);#22 SalcidoBojorquez(livedin the UnitedStatesfor at least
nineyearsand prior arrests);#23 SanchezRamirez(lived inthe United
Statesforat least0 yearsandtwopriorconvictions);#24 Tafoya Amola
(movedto the UnitedStatesat age of 5 andprior arrestsandconviction);#25
Valdez Reyes(lived inthe United States for19yearsand extensivecriminal
record)#26 Vargas (livedinthe UnitedStatesfor at least 11years andprior
conviction);#27 Verano Cruz (priorarrests);#28Zambrano(in the United
Statesforforty-four years,ince infancy;oneprier arrest);#29 Zamudio
Jimenez(movedto the UnitedStateswhen five-years-old);#30 Alvarez6.7 Further, it is importantnot to confusethe full extent of
what a consular officer might choose or attemptto do with the
limited functions of a consular officer under Article36(1).
Article 36(1) begins with a ciear statement that its provisions
are for "facilitating the exerciseof consular functions."
Subparagraph l(a) states thata sending State hasa general right
of communication. This is the only relevant rightwhen a
national isfree in the hostcountry; the foreign national may
communicatewith his orher consular officer andseek
assistance,and the consularofficer may provideany assistance
he or shewishes that iswithin the scope of theconsular
functionsenumerated inArticle 5 of the VCCR. Subparagraph
1(b) follows to addressthe special problem of communication
(lived in the United States eightyears and several prior arrests and
conviction);#32 Garcia Torres(prior conviction); #33Gomez(moved to the
United States when five-years-old andmultiple arrests); #35barra (six prior
arrests);#36 Leal Garcia (movedto the United Stateswhentwo-years-old);
#37 Maldonado(lived in the UnitedStates for approximately 16years and
prior conviction);#38 MedellinRojas (moved to the UnitedStateswhen a
small child and seven prior arrests);#39 Moreno Ramos(livedin the United
States for20 years);#40 PlataEstrada (moved to the UnitedStates when
four-years-old andthree prior arrestsand conviction);1 Ramirez Cardenas
(movedto the United Stateswhenthree-years-old and severalprior arrests);
#42 Rocha Diaz (lived in the UnitedStates for six years andseveral prior
arrests);#43 Regalado Soriano(moved to the United Stateswhen four-years-
old and history of prior arres#44;Tamayo (lived in the United Statesnine
years and prior conviction);#45Caballero Hemandez (livedin the United
Statesthirteen years and twopnor arrests)#46 Flores Urban(moved to the
United States when seven-years-oldand several prior arrests);#47 Solache
Romero(at least one prior arrest);#48 Fong Soto (lived inthe United States
forIO years and several prior arrests); #49 Camargo Ojeda(lived in the
UnitedStates for at least 12years andprior conviction);#50Alberto
Hemandez (lived in the UnitedStatesfor at least 15years);#52 Loza (lived
in the United States for approximately0years, priorjuvenile arrest);#53
TorresAguilera (moved to the United States when five-years-old);#54
ReyesCamarena (lived in theUnited States intermittentlyforat least 15
years,extensive criminal recordin the United State). SeeCases
Declaration,corresponding Appendices, Annex 2.when a foreign national is detained,and thus no longer fiee to
seek out his or her consularoficer at will. It givesto a detained
foreign national an opportunityto communicatewith his or her
consular officersand to havethe consular officersnotified of
the detention - thus preventinga secretdetention.
6.8 This subparagraphhas anotherpurpose, not addressed
by Mexico, which is to givethe detaineethe discretionto reject
consular notification becausehe or she may prefer, for privacy
or other reasons,that the sendingStategovernment not be
aware of or involved in hisor her affair~'~~.
6.9 Paragraph 1(c) hasas its purpose permitting but not
requinng the consular officerto render appropriateassistance to
the detainee. It allows the sendingStateto determinethe types
and amount of consular assistanceit willprovide, if any, within
the limitationsprescribedbyArticles 5 and 36 of the VCCR. It
does not requirethat a consularofficervisit or othenvise
communicatewith the detainee,(the officer may not be able to
visit the detaineefor somedays, for example, or may decide not
to visit or assist at all) but it permitshim to do so. Likewise, it
permits but does not require theconsularofficerto arrange for
the detainee's legal representation. And it reiteratesthe overall
control of the detainee, recognizedin subparagraph I(b), stating
that the consularofficer mustrefrain from taking action
149
The original InternationalLawCommissionproposal for Article 36, to
require consular notificationincases,was rejected inpart for this reason.
When introducingthe "seventeen-powerproposal", A/CONF.25/L.41, which
was then furthermodified by AiCONF.25L.49 and adoptedby the
conference, UnitedNations,onferenceon ConsularRelations, Vol.I,
Summaryrecordsofplenary meetings and themeetingsof theFirst and
Second Committees,documentAiCONF.25116,1963,p. 87,paras. 109,112,
Annex 23,Exhibit7, the Tunisianrepresentativeindicatedthe reason the
drafters had included"unlessheexpresslyopposesit", was the need to take
into considerationthe pnsoner's own freedomof choice.. at p. 82, para.
56. Seealso statementsby UnitedStates,id. at p. 337, para. 39; the United
Arab Republic,id. at 36, par10;Viet-Nam,id. at p. 37, paras. 16-17.expressly opposedby the national.
6.10 It is not aurpose of Article 36, however,to create
rights for nationalsof the receiving State,including dual
nationals. Nor is it a purpose of Article 36to allow a consular
officer to serve asa lawyer forthe detainee,or to interfere with
an investigation or to prevent the collection ofevidence in
accordance withthe laws and regulations of the receiving State.
It thus is not anobject or purpose of Article36 to prevent law
enforcement officials from questioninga foreign national until
that individual is informedof the possibility ofconsular
assistance underthe VCCR, until the individualactually
requests consularnotification, and until theconsular officer
amves and rendersassistance. Yet this is exactly how Mexico
defines the objectand purpose, in that Mexicoasserts that:
"[tlhe presence ofconsular officials throughoutinterrogation
provides an essential safeguardagainst . ..abuses .. .Thus, the
foreignnational's right to seek the guidanceof consular officers
is essential to an intelligent, voluntary, andinformed decision
whether to exercisehis right to remain silentin the face of
interr~~ation"'~~.This is not correct.
6.11 Nor is it anobject and purpose of Article 36 to allow a
consular officerto ensure that a foreign nationalunderstands his
or her legal rightsregarding the making of statements to the
police before any statement is made. Article36 merely
contemplates that foreign nationals will betold that they may
communicate with the consular officers, andbe allowedto
initiate such communications - if they so wish - after having
been taken intocustody. Article 36 doesnot even require that
consular officersbe given access to theirnationals "without
delay", and it hasnever been understoodto require access
before an interrogation. Whether a foreignnational arrested for
a criminal offenseunderstands his legal rightsbefore he or she
''OMexicoMernorialp ,ara.321.makes a statement is not foraconsular officerto determine; it is
a question specifically addressedby the person's lawyer,once
obtained,and by the courtsat a subsequent point in time.
6.12 These are only the most significantways in whichthe
Memorial overstates the roleof the consular officerand
misstatesthe purposes of Article 36. Tojustify the very
particularand extraordinaryremedy it seeks, Mexicothen
compounds the error by failingto distinguish amongthe three
distinctobligations establishedin Article 36 and thus distorts
Article 36. The first is the obligation in the concludingclause
of subparagraph (l)(b) to inform the foreign national "without
delay" of the "rights underthis s~b~aragra~h"'~'.To prevent
the confusionthat Mexico hasintroduced, we referto this
undertaking as the obligationto provide "consular information".
The second is the obligation,upon the detainee'srequest,to
notify the consular post "without delay" of the detention, which
we referto as the obligationof "consular notification". Because
this obligation arises onlywhen consular notification is
requested by the detained foreignnational, a lack ofconsular
notification at most raises a question whether theperson
detained received consular information; it does not necessarily
indicate a breach of Article36(l)(b). If the person detained is
provided consular informationand declines to requestconsular
notification then no breachof Article 36(l)(b) occurs. The third
relevant obligation is the obligation to permit the consular
officerto have access to and communicate with the detained
foreignnational. This obligation is not in subparagraph(l)(b),
but rather in subparagraph(1)(~)'~~.More importantly,
15'The"rightsunderthissubparagrapha "re:(1)theright,if theforeign
nationalso requests,of thesending State consrosttobeinformed
withoutdelayof thefactofhisorherdetention;and(2)the rightto havethat
communications betransmittedwithoutdelayfrom thedetainedforeign
national tohis consulate,Annex23,xhibit1.
15'"1. Witha view tofacilitatingtheexerciseofconsularfunctionsrelating
tonationalsof thesendingstate:..(c) consularofficersshallhave the rightsubparagraph(l)(c) doesnotprovide that theconsularofficer
shall have a right to visit,converse,or correspondwith the
detainee "without delay".
6.13 Mexicojumbles theseobligations and,in doing so,
makes three significant errors. First, it wronglyassumes that
failure to notie consularofficersof an arrestor detention
necessarily implies thatArticle36(l)(b) wasbreached. This is
wrong as a matter of lawandfact. In reality,the vast majority
of foreignnationals, includingMexican nationals,decline
consularnotification whengiven consular information.
Mexico's mistake leadsitto make a claim of systematic
breaches of Article 36bytheUnited Statesthat is unfounded,
and to claim remedies forbreachesthat it has notproven'53.
6.14 Second, Mexicofailsto recognize thatthe provision of
consularinformation is ameansto an end - ensuringthat the
consularofficer is aware ofthe detention. Whilethe obligation
to provide consular informationis important,the significanceof
a failure to provide suchinformation clearly varies depending
to visit a nationalof the sendingStatewho is inprison, custodyor detention,
to converseand correspondwithhimand to arrangeforhis legal
representation. Theyshall alsohavethe right tovisitanynational of the
sending Statewho is in prison,custodyor detentionintheirdistrict in
pursuanceof ajudgment. Nevertheless,consular officersshall refrain from
takingactionon behalf of anationalwho is in prison, custodyor detentionif
he expresslyopposes suchaction." Annex 23,Exhibit1.
Is3Mexicomakes thiserrormostclearly in paragraphs 159-168 of its
Memorialand in Appendix BtotheDeclaration submittedas Annex 7 to the
Memorial,when it cites 102casesof alleged recent violations ofAr36.le
As the CornplianceDeclaration,paras52-55,Annex 1 andAnnex 1,
Appendix4, explains, in many ofthesecases consularinformationwas
providedbut notificationwas declined,consistentwithstatisticaland
anecdotal evidencethatthe vastmajority of Mexican nationalsdecline
consular notificationwhen givenconsular information. Mexico's mistake
also seenin at least two of thefifty-fourcases beforetheCo(#10Juarez
Suarez;# 50 Hemandez Alberto). See Cases Declaration,corresponding
Appendices,Annex 2.onwhether and when consular notification occursin fact. It is
not unusual for familyor fÏiendsto notifi a consular officerof
an arrest immediately,and well beforethe competent authorities
cando so, or for a detaineewho is allowed touse the telephone
to cal1the consulate directly. If the consularofficer then
contactsthe detainingofficiaisdirectly, andbefore they
completethe processof providing consularnotification, it
wouldhardly be surprising ifthey concludedthat the provision
of notificationwas unnecessary. Any"breach" of Article
36(l)(b) in this contextwould be inconsequential. Thus, it is
plainlyinappropriateto equate the importanceof consular
informationand consularnotification. It is also inappropriateto
assume thata failure tocomply withoneor the other is always
significantas to whetherthe objectandpurpose of Article
36(l)(b) has been fuifilled.
6.15 Finally, Mexicoconflates therequirementsof
subparagraph(l)(b), to inform and,if requested,to notifi
withoutdelay, with the requirementof subparagraph(l)(c), to
permitaccess. An example is whenit Statesthat: "Article36
requires notificationand access without delay to enable
meaningfulconsular a~sistance"'~~.Throughthis sleightof
hand, Mexico assertsthe non-existent rightof a consular officer
to talkwith a foreignnational immediately uponhis arrest or
detentionand beforeanything elsehappens,and thus to
'54MexicoMemorial,para. 191(emphasisinoriginal). Given that Article
36(l)(c) does not use thewords "withoutdelay",we assumethat there isno
disputeas to the meaningof that Article. Tothextentthat Mexicocontests
this, forexample, as part of its effort toargue thatArticle 36 contemplates
that consularfficers must bepresent prior toandat an interrogatisee,
e.g.Mexico Memorial at para. 32 1,the UnitedStatesdisagrees. The United
Statesalsodisagrees thata breach of Article36(l)(b) necessarilyresults in a
breachof Article36(l)(c) or (a), exceptinthe circumstancesin which the
Court founda breach inLaGrand - i.e.that theconsulatewas "unawareof
the detention"and was"prevented for al1practicalpurposes from exercising
itsrightsunder Article 36,paragraph ".LaGrand,Judgment, para. 74;see
alsoLaGrand Report,pp. 8-9, Annex 23,Exhibit79.intervene irnmediately in a criminal investigation.
6.16 These inaccuraciesinfect Mexico's entireargument in
fundamentalways, as we will further e~~lain'~~F . or the
moment, however, we willfocus on the question ofthe meaning
of "without delay" in subparagraph ( l)(b).
C. Article36(l)(b) ObligatesStatestoProvideForeign
Nationals With ConsularInformation UndertheVCCR and
to Notify ConsularOfficersWhen Requested"Without
Delay",Meaningin theOrdinaryCourseofBusiness and
Without Procrastinationor DeliberateInaction
6.17 TheUnited States andMexico disputethe meaning of
the phrase "without delay" intwo of the three places inwhich it
is used inArticle 36(l)(b). The more explicitdisputeis over the
meaning of "without delay" in the concluding sentenceof
Article 36(l)(b), which provides that: "The saidauthorities shall
inform the person concernedwithout delay of his rights under
this subparagraph." But thereis also inherentlya dispute over
the meaning of the first sentenceof subparagraph(l)(b) insofar
as it provides that, "if he sorequests, the competentauthorities
of the receiving State shall,without delay, informthe consular
post of the sending State if,within its consulardistrict, a
national of that State is arrestedor committed to prison or to
- -
lS5Thesethree errors have particularlysignificant consequencesfor
Mexico's remedial claims. Themisconstruction of subparagraphl)(b) leads
Mexicoto claim, in essence,arightto be notified ofthearrestor detention
of every Mexicannational and forits consularficersto bepermittedto
meet withevery arrested person,andto be physicallypresentbefore or
during anyinterrogation,in orderto prevent the detaineefromproviding
informationto law enforcementauthorities investigatinga crime.e,e.g.,
MexicoMemorial,paras. 208,321. On this non-existentsetof obligations
then restsits extraordinaryclaimfora remedy bamng use of statements
givenby Mexicannationalsbeforethey communicatewitha consular
officer.custodypending trial or is detainedin any other manner"
6.18 In addressingthe question "how quickly" the detainee
needs to be informed,the United StatesDepartment of Statehas
provided federal,state, and local lawenforcement officiaisthe
following guidance:
Thereshoutdbe no deliberate delay, and
notificationshould occur as soon as reasonably
possible underthe circumstances. Once foreign
nationality isknown, advisingthe national of the
right to consular notification should follow
promptly.
In the caseof an arrest followed by a detention,
the Departmentof State would ordinarily expect
the foreignnational to havebeen advised of the
possibilityof consular notification by the time
the foreignnational is bookedfor detention. The
Departmentencouragesjudicial authorities to
confirm during court appearancesof foreign
nationals that consular notification has occurred
as required'56.
6.19 In addressinghow quicklynotification must be madeto
theconsular officer ifrequested, the Department of Statehas
provided this guidance:
The Departmentof State alsoconsiders "without
delay" hereto mean that thereshould be no
deliberatedelay, and notificationshould occur
as soon as reasonably possible under the
circumstances. The Departmentof State would
Is6StateDepartmentManual,supra note73atp.20, Annex2 1(emphasisin
original). normally expect notification toconsularofficiais
to have beenmade within24hours, and certainly
within 72hours. On the other hand,the
Department does not normallyconsider
notification ...to be requiredoutsideof a
consulate's regular working hours. In some
cases, however, itwill be possibleand
convenient to leavea message on ananswering
machine at the consulateorto send a fax even
though the consulateis c~osed'~'.
In UnitedStates practice,it hasneverbeenthe case that
consularinformation must necessarilybe provided beforea
detaineecan be questioned,or even that the informationbe
givenby a person involvedinthe interrogation process(as
opposed,for example,by other competentauthoritieswho have
contactwith the detainedperson,suchasthose responsiblefor
booking). Mexico, however,contendsthat the Court should
requirethe United Statesto change this practice.
Acknowledgingthatthe VCCR doesnot define the phrase
"without delay"15',Mexico argues that "without delay"should
be interpreted as meaning "immediatelyand prior to any
interr~~ation"'~~.Having keyed theobligationto specific acts
of lawenforcement authorities, Mexicothen asks the Courtto
concludethat the United Statesbreachedthe concluding
sentenceof Article 36(l)(b) becauseits competentauthorities
arrestedMexican nationals and interviewedthem before
providingthem with consularinformation. Inherentin its
argumentis the furthersuggestion that notificationto the
consularofficer "without delay" must be essentiallyimmediate
157StateDepartmentManual,supranote73atp.20,Annex21(emphasisin
original).
15SeeMexicoMemorial,para.182.
159Mexico Memorialp, ara.204 (emphasis adds;eealsoMexico
Memorial, para.91.and, in any event,must occur and be respondedto before the
foreign national canbe questioned further,evenif he has made
clear his willingnessto speakor is representedby counsel.
6.20 Mexico's definitionof "without delay"is conceptually
flawed, unsupported bythe customary rulesof treaty
interpretation and, as a practical matter, wouldbe unworkable
and lead to absurdresults. It would radicallychangethe
meaning of Article36 and putvirtually everyState Party to the
VCCR today inbreach of its Article 36 obligations. Mexico's
proffered definitionshould be rejected bythe Court.
1. TheOrdinaryMeaninginContextSupportstheDefinition
GivenTo " WithoutDelay " by theUnitedStates
6.21 When thewords "without delay" are considered in light
of their ordinarymeaning and intheir context,it is clear that
Mexico's proposeddefinition is unsustainable. First,
conceptually, it is self-evident that how longittakes to cany out
the obligationsunder Article 36 depends onthe circumstances.
An act may takea long time, and yet be done"without delay"if,
for example, the actis complex(many people arrestedas a
group), or if time1srequired to determine aperson'sidentity or
nationality (if hepresents falseor inconsistentinformation or
documents). Likewise,an act could be completed ina short
time, and yet havebeen delayed if the actor couldconveniently
have completed itmore quickly,but electednotto do so. The
actor's intentionand actions, and the circumstancesin which he
finds himself, areplainly relevant, indeedkey,to assessing
whether he acted "without delay". The phrasein context is not
simply a functionof time.
6.22 The secondprong of Mexico's proposeddefinition - its
insertion of a "before interrogation" requirement - likewise is
flawed. Consular informationand law enforcement
interrogations arenot necessarily linked,certainlynot in thecontextof the VCCR, and thereis no reason why questioning
shouldbe made contingenton a request for notification. In
furtheranceof ensuring that consularinformation is provided
without delay, a StateParty may provide that consular
informationwill be given routinelywhen the person is taken
beforeajudicial authority - an event that in many States Parties
occurswithin a few days of an arrest160.Or a StatePartymight
providethat the information will be given by a prison officialor
by a social worker who will visit eachdetainee within the first
dayof detention16'.In eithercase the information wouldbe
givenwithout delay, but in neithercase would it relateto the
conduct of other regular governmentfunctions such as the
interrogationof the person or other aspects of the related law
enforcementinvestigation, which may be proceeding on an
entirelydifferent scheduleto solve a crime while the evidenceis
freshand to protect public safety. Nothing requires thatthe
consular informationbe provided by the arresting officeras
opposed to the investigator,magistrate or social ~orker'~~.The
carrying out of a criminal investigation in particular has nothing
to dowith how quickly or slowly the information on consular
160This is the practice, forexample,inArgentina. State Practice
Declaration,para. 17,Annex4.
16'In France, a detaineeis assigneda socialworker and providedconsular
information whenhe or she arrivesat a detentionaciliîy. If the detainee
wantsconsular notification, the social workeren makesthe cal1to the
Embassy. State PracticeDeclaration,para. 13,Annex 4.
'62Nothing in Article 36, paragraph1,purports on its faceto alter,inany
way,the municipal criminalproceduresof the receiving State. Theonly
connectionto municipal criminal procedures isthat the receiving State's
obligationsunder subparagraph (b),andthe sending State'srightsin
subparagraph(c), are triggeredwhena foreignnational "is arrestedor
committedto prisonor to custodypending trialor is detainedin anyother
manne?. VCCR, art. 36(l)(b), Annex 23,Exhibit 1. Oncethis tnggering
eventoccurs, the paragraphprovidesno further guidanceregardingthe
timingof the informationand notificationobligationsnder subparagraph
(b)relative to any investigativeor prosecutorialactions thata receiving State
mayundertake. It merelyprovidesthat thereceiving Statemustcomplete
eachof its obligationsnderthat paragraph"without delay".notification is conveyed and properly proceeds on an
independentschedule. Thus, "without delay" cannot mean
"before interrogation"l".
6.23 This understanding of the plain meaningof "without
delay" is confirmed if we consulta dictionary. The Oxford
EnglishDictionarydefines the noun "delay" as: "1 .a. The action
ofdelaying;the putting off or deferring of action, etc.;
procrastination, loitering;waiting, lingering. b. The fact of
beingdelayed or kept waiting for a time; hindrance to
progress"'64.Similarly, Webster 's ThirdNewInternational
Dictionarydefines "delay" as: "the actor practiceof delaying;
'63The fact that the conceptof withoutdelay should haveneither a mere
temporal meaningnor one linkedspecificallyto the canying out of a
government function isalso illustratedby reference to Article 37,der
which States Parties must: 1)"inform without delay" the sending State's
consulatewhen oneof its nationalsdies in thetemtory of the receiving
State;) "inform thecompetentconsularpost withoutdelay" of any case
wherethe appointmentof a guardianor tmstee appearsto be in the interests
ofa national of the sendingState;and 3) in the eventof an accident
involvinga vesse1or aircraftof the sending State, "informwithout delay" the
consularpost nearestto the scene. Clearly, requiringthese communications
to be made "without delay"does not mean the receivingState would be
requiredto suspendits activitiesregarding, forample,rescuing those who
have survived an aircraft accident, until the relevant consulatehas been
informed. Itcan only mean that there should be nodeliberate or
unwarrantedpostponementin informingthe consulate, evenas the regular
businessof the receivingStategoes on.
Oxford EnglishDictionary,Vol.4, p. 409 (1989)(hereinafter, this book
will be referred to as "OED"), Annex 23, Exhibit 75. It defines the verb
"delayW as: "1. To put off to a later time; to defer; postpone. 2. To impede
theprogress of, cause to lingeror stand still; to retard, hinder. 3. To put off
action;to linger, loiter, tany". Id. It must be noted thatthe OED also offers
a definition of thephrase "without delay" as meaning"without waiting,
immediately,at once". Id. However,the context of thisphrase in the
VCCR,especiallyin relation to its other articles thatusethe term
"immediately", makes clear that thisOED definition of the phrase is not
applicable here.procrastination;lingering ... The OEDdefinesthe
preposition "without" as: "10. With absenceor lackof, or
,716. Webster S defines it as:"3. not using or
freedomfiom ...
being subjectedto; exemptor free fiom; 4. not accompaniedby
or associatedwith ...9,16. Thus, "without delay"can be
understood as the absence or lack of procrastination,deliberate
inaction, lingeringor putting offI6*.Delay is not simply
-
'65 Webster'sThird NewInternationalDictionaty, p. 595(1981)
(hereinafter,thisbookwill be referredto as "Webster's"),Annex23,Exhibit
76. It definesthe verb"delay" as:"1. To put off;prolongthetime ofor
before; postpone;defer. 2. To stop,detain, or hinder fora time; check the
motionof, lessenthe progressof, or slow the timeof amval of; to cause to
be sloweror to occur moreslowlythan normal;retard ...".Id. The French
text of Article6(I)(b) uses thephrasesans retard. LeNouveauPetit
Robert, p. 465 (1995),Annex 23,Exhibit77,definesretardas: "actionde
retarder,de remettreà plus tard"("the act of delaying,ofputtingoff until
late'1;"sansretard"is definedas:"sansattendre,sanstarder;le plus vire
possible" ("withoutwaiting,withoutdelaying;as quickly aspossible").
'66OED, Vol.20,supranote 164atpp. 458-460.
'" Webster S,supranote 165atp. 2627.
Whereasthe phrase"withoutdelay" is used consistently
throughout Article6(l)(b) inboththe Englishand Frenchlanguage
versionsof the VCCR("sans retard"in the French version), the
Spanish languageversion surprisinglyuses oneformulation("sindilacion")
with respectto consular information,anotherformulation("sinretraso
alguno") with respectto consularnotification,and yetathird("sin
demora") with respectto the forwardingof communicationsto anarrested
person'sconsulate. Although"dilacion","retraso",and"demora"are terms
thatsynonyrnouslydenotedelay,DiccionarioIntemacional:esparïol/ingles,
p. 1109,1143,and 1174(1997),Annex23, Exhibit 197,wepoint out that the
Spanish languagetext framesthe obligationtoprovideconsularnotification,
if requested,sinretrasoalguno"("withoutdelaywhatsoever"). We
have no explanationforthesedifferencesandbelievethattheyoccurred
duringthe courseof the draftingof the Convention. Reviewof the two other
authenticlanguageversionsof theVCCRonly confirmsthisunderstanding,
sinceboth the Russianand Chinesetextsemploythesameterm in
translating"withoutdelay" as it appliesto consularinformationand
notification obligations(theinesetext apparentlyemploysa different term
in translating"without delay"withrespect to the forwardingof
communications,butthis obligationis not atissueinthiscase). In anymeasured in periodsof time; it implies alsothe existenceof
intention or inattention thatextends the time beyond whatis
necessary or normal.
6.24 Viewed in context,and in light ofthe objectandpurpose
ofthe VCCR, the consularinformation provision canthus fairly
be said to requirethe receiving Stateto provide the required
consular information,while refrainingfrom procrastinationor
from any deliberateinactionthat postpones itscompletion.
Nothing in theordinarymeaning of "without delay" linksit to
the carrying out of the interviewor interrogation ofan
individual, or of a criminalinvestigation,or of other legal
actions.
6.25 An examinationof the entire text of Article36(1)lends
further support to the UnitedStates' interpretation and,
likewise, revealswhy Mexico'sasserted definitionis
unsustainable. There isnothing in any partof subparagraph
(l)(b) that links the provisionof consular information tothe
criminal investigation. As noted, the phrase "withoutdelay"
appears three times inthat subparagraph:first, in relation to
notifiing the consular post,upon request,of the detention;
second, in relation tofonvarding any communication fromthe
detainee addressedto the consular post; and finally,in relation
to informing the detainee thathe may havehis consular post
notified and his communications fonvarded. Each obligation
must be performed "without delay". Mexico faces aheavy
burden to show that thesamephrase used repeatedly inthe
same clause is to be givendifferent meaningsbut has failedto -
event,althoughMexicoarguesthat"withoutdelay"means"immediately",
we see no evidencethatthis argumentingesuponMexico'srelianceon
theapparently non-conformingSpanis lhnguageversion
becauseMexico doesnotdifferentiatebetweentheapplicationofthephrase
"withoutdelay"tothetwoseparateobligations- toprovideconsular
information andi,f request,onsularnotification ansingunderArticle
36(1Nb).andcannot - meet that b~rden'~~.Yet giving each usage the
samemeaning proposed by Mexico demonstratesthat Mexico's
definitionis untenable because it leads to absurdresults. By
contrast,the definition suggested by the United States works in
al1relevant contexts.
6.26 The obligation, upon request of a detained foreign
national,to notifi the consulate of his or her arrest would
normally becarried out in the ordinary courseof business. One
rnightpick up the phone or send a fax,but even at present (and
certainlyat the time the VCCRwas concluded) it would not be
unusual,particularly if an arrestoccurred far froma consulate
or embassy,to send a letteror a diplomatic noteI7O.Notification
through a face-to-facemeeting might also be arranged17'.The
actualaccomplishmentof notification may depend on whether
169
This Court has foundthat the Pa@ asserîing that a term has a special
meaningbears the burdenof "demonstrat[ing] convincingly"the use of that
termwith that specialmeaning. See WesternSahara,Advisory Opinion,
I.C.J.Reports 1975, p. 53,para. 116. Seealso FisheriesJurisdiction(Spain
v.Canada),Jurisdictionof theCourt,Judgment,1.C.J.Reports 1998,p. 508,
para.45 (DissentingOpinion ofVice-President Weeramantv) (citing the
"generalpnnciple of legal interpretationthat clausesin a document mustbe
treatednot in isolation,but in the general context of the meaning andport
ofthe document in which they occur. Together they forman integral whole,
andno one part maybe compartmentalizedand broughtinto exclusive
operationat theexpenseof the other.").
"O Notably,nothingin Article 36 indicates the mannerin which consular
officersare to be notifiedby receiving State officials ofthe desire of a
detainedforeignnational for consular assistance.hus,it is left to receiving
Stateofficials to use a varietyof methods, includingonessuch as diplomatic
noteor regular mail that mayresult in notification occumng after critical
eventsin a criminal investigation haveoccurred. However,Mexico's
proposedinterpretationof "without delay" necessarilywould bar the
171visionof notice via mail or diplomatic note.
One can imaginecircumstancesin which a Statewould conclude that the
bestway to notiS, a consularofficer of an arrest wouldbe in person (for
example,if the arrest occurred in circumstances that wouldprove
embarrassingto the sendingState).the meansof conveyingthe request for consular notification are
worlung (the mail,the telephone lines), or if the consularofficer
who mustreceive the notification is available(e.g.,on a long
holiday weekend). In each case, however, notificationwould
have beenmade "without delay". It will rarely, if ever,
however,happen immediately.
6.27 Thetime penod for carrying out the requirementto
fonvard anycommunications fromthe detainee to the consulate
is likewiseimprecise and willVarywith the circum~tances'~~.It
envisionsan on-going obligation tofonvard communications to
the consulateduring the period of detention, which couldlast
weeks, months,and even years. Mail maybe picked up for
deliveryonce a week,or once a day; or perhaps twiceon
weekdaysand not at al1on weekends. In the event of a labor
dispute ornaturaldisaster, the mail service might be disrupted
for a periodof time. In this context, "without delay" can only
mean thatperformance should occurin the ordinary course of
business, while refraining from procrastinationor deliberate
inaction. It certainlydoes not mean that al1other work must
stop sothat every letterto the consulate can be dispatched
immediatelyby hand-delivery.
6.28 Thereis no reason tothink the phrase has a different
meaningin referenceto providing a detainedperson with
172
The requirementin Article 36(l)(b) that the competent authoritiesof the
receivingStateorward any communicationaddressed to the consularpost
by thepersonarrested, in prison,custodyor detention "withoutdelay", itself
militatesagainstMexico's interpretation.cause the text providesno
furtherguidanceregardingthe mechanismfor forwarding a communication,
adecisionby local authoritiesin 1963to forward communicationsvia mail
would clearly haveconstituteda good faith effort to comply with this
requirement. This is notto say that States Parties in theturyshould
eschew cellphones, faxmachines,couriers or e-mail. We highlightthis
provisionsolelybecause it provides further evidence that StatesParties did
not understand"withoutdelay" toean "immediately and prior to
interrogation". Ssupra note 170.consular information. Provision maybe madeforthe
information to be givenby the arresting officer,by the booking
officer, by thejailer, orby a magistrate at the initialcourt
appearance; in each case it wouldbe given"without delay"
were it given within a reasonable period of time (theUnited
States has promoted a standardof twenty-fourto seventy-two
hours as a rule of thumb) and in the ordinary courseof business.
6.29 Likewise instructiveisthe fact that the textsof other
articles within the VCCRshow that whenthey intendedto
describe obligations that must be performedsimplyinterms of
time, the drafters utilizeda variety of differentphrases. For
example, Article 14requiresthe receiving Stateto "immediately
notifi" the competent authorities as soon asthe headof a
consular post is admitted even provisionallyto the exerciseof
his or her functions. But if "without delay" means
"immediately", as Mexicoargues, then what meaningis to be
given to "immediately notiQ7',which must have beenintended
to indicate an even shortertime period? Why,moreover,would
the drafiers have used different languageto represent what
Mexico contends is essentiallythe same concept?
6.30 In the important contextof criminalproceedings,Article
41provides that the receivingState must "promptlynotlfi the
head of the consular post" inthe event of the arrestor detention
of amember ofthe consularstaff. If "without delay" is to be
given the definition suggestedby Mexico - "immediate and
prior to interrogation" - then by implication the standard
"promptly notify" wouldmean that the VCCRpermittedless
timely notification to a consulate of the arrest of a member of its
own staff than it permitted forother citizens,suchas tourists.
This cannot have been the intention of the drafter~'~~.
-
'73Instead,thVCCR clearly soughtto give consularofficersmore
protectionsthannon-officernationalsof thesending State.Forexample,
Articl41(c) providesthatwhena consularofficeris detainedpendingtrial6.31 If the drafters had intended "without delay" in the
concludingclause of Article 36(l)(b) to mean"immediately and
pnor to any interrogation", theyplainly would and could have
specifiedthis in the text, given the usage of the term
"immediately" and other variations elsewhereinthe VCCR.
Thefact that they did not showsthat they in noway intended
themeaning that Mexico now advances.
2.StatePractice Confirms "WithoutDela)>" Has the Meaning
GivenTo It by the UnitedStates
6.32 Mexico has also failed to show that the practice of States
underthe VCCR establishes an agreement ofthe States Parties
to givethe phrase "without delay"the specialmeaning it
proposes. In fact, Mexico points to no Statepractice except that
ofthe United States, which it completelymisrepresents, and its
own,which it also portrays inaccurately. Statepractice -
includingMexico's own practice - simply doesnot support
Mexico'sposition. Rather, State practice is consistent with the
viewof the United States.
6.33 The United States has compiled a wealthof information
onhow StatesPartiesto the VCCR cany outtheir obligations
underArticle 36(l)(b), includingthrough a comprehensive
surveyof Statepractice'74.This informationshows that, of the
seventy-ninecountries aboutwhich we haveinformation and
thatdeal with United Statescitizen consular information and
pursuantto a decision by the competentjudicial authorityfor allegedly
cornrnittinga grave crime, "the proceedings againsthim shall be instituted
withtheminimumof delay".VCCR, Annex 23,Exhibit 1. Articl63 States,
intealia, "[wlhen it hasbecomenecessary to detainan honorary consular
officer,the proceedingsagainst him shall be inswithttheminimum of
delayW.Id. Thereare no comparableprovisions requiringthat proceedings
beinstituted promptlyagainstnationalsof the sendingState generally.
'74SeeState Practice Declaration, Annex 4.notificationcases on the basis ofthe requirementsof the VCCR
andor a consularconventionrequiring notificationonly upon
the request of thedetainee'75,only forty-fiveusuallyprovide
United Statescitizendetaineeswith consularinformation.
Moreover, intwenty-seven of these forty-fivecountriesthe
consular information is notprovided immediatelyupon
detention or before initial questioning by lawenforcement
authorities. Typically the information is providedonly at some
point during or after the initial interrogation;inan appreciable
number of cases it is given evenlater. In Argentina,for
example, ajudge provides detainees with consularinformation
at their preliminaryhearing,which followsanincommunicado
period of up tothree days during which questioningis
conducted. Inten other of the forty-fivecountries,the
informationmay be given beforeor after interrogation;often it
is only during interrogationthat the receivingStatebecomes
aware that it has a United States national incustody. Only in
eight of the forty-fivedoes it appearto be fairlystandard
practice to provideconsular information(ortheopportunityto
cal1the consulate)prior to interrogation'76.
6.34 Compliancewith the consular informationrequirement
by the remainingthirty-fourof the seventy-ninecountries
governed by the VCCR in dealing with UnitedStatesnationals
cannot be describedas routine. These countriesinclude, for
lT5The UnitedStateshas many bilateraltreatiesonconsularrelations that
includedifferent provisions intendedto be moreingentthanthe VCCRin
two respects:first,by requiringnotificationto theconsularofficerregardless
of any requestby theoreignnational,and second,byrequiringsuch
notificationwithina set period of time, suchas three days.See State
Department Manual,supra note73 at pp. 47-49,Annex21. Because of this
very materialdifference,the timelinessof consularnotificationgiven to
United Statesconsularfficers inthosecountriesmayreflectthe
requirementsofthosetreaties andthereforeis relevantprincipallyto
hi hlight differences from the practicetheVCCR.
17'See StatePracticeDeclaration,paras1620, Annex4.example, the Netherlands,where a detaineeis firstprovided
with consular informationonly whenheor she is sent toa house
of detention after an initial periodof detentionin apolice
station that may lastup to sixteendays.
6.35 Of special note, Mexicanauthoritiesroutinely
interrogate detained UnitedStates nationals before they are
given consular information. In many cases, it is only duringor
even after the interrogation thatthe Mexican law enforcement
authorities becomeaware that the detainee isa UnitedStates
citizen'77. Importantly,inal1of our consulardistrictsexcept
Nogales and Tijuana, Mexican law enforcementofficiaisdo not
break off interrogation ifa United Statescitizen asks to speakto
the consulate. Contactwith theconsularofficer inmost
Mexican districts is permittedonly afterthe interrogation is
completed.
6.36 Article 128,Section IVof Mexico's Federal Codeof
Criminal Procedurerequires thatthe detentionof a foreign
citizen be communicated immediatelyto the sendingState's
diplomatic or consular mission,regardlessof whether the
sending State is one in which notification is mandatorydespite
the wishes of the ~ietainee'~~P .assed into law in 1991,this
provision may be intendedto simplifi and therebyensure
-
'77Mexico apparentlyexperiencesdifficultiessimilarto thosefacedby the
United States in lightof the frequencyofl nationalityandthe extensive
connections many perçonshave on both sidesof the UnitedStates-Mexico
178der. See State PracticeDeclaration,par45,Annex4.
"Si se tratare de unextranjero, la detencion se comunicarade inmediatoa
larepresentacion diplomatica consularque corresponda". ("ln the caseof
analien, the fact thathe has beenplaced in custodyshall be reported
immediately to the appropriatediplomaticor consularmission"). Leyesy
Codigos de México, CodigoFederalde ProcedimientosPenales, art. 128.IV
(1995), Annex 23, Exhibit69. While Article 128.IVis a provision
applicable only to federalauthorities,more than haifof the MexicanStates
alsohave provisions imposinga similar obligationon stateauthorities. See
Richards Declaration, para. 5, Annex6.complianceby Mexicowith its consular notification
obligations, includingthose under VCCR Article36(1), whichit
implementsonly imprecisely'79. Significantlyfor present
purposes,however, Article 128.IVdoes not incorporate the type
ofonerous requirementsMexico is askingthe Court to impose
onthe United States,either in law or in practice. While the law
providesfor "immediate" notification, the consequencesof
notification for the criminal process in Mexicoare not what
Mexicoargues they should be in the United States.
6.37 Even Article 128.IV'srequirementof immediate
notificationof a foreignnational's consulatedoes not guarantee
thatthe consulate will be notified prior to interr~~ation'~'.It
certainly does not guarantee that the consularofficer would be
ableto intervene beforethe foreign nationalprovides his or her
initialstatement, or that the administration ofprosecutorial or
judicial process in Mexico would be haltedprier to
interrogationanciloran initial declaration whileUnited States
consular authorities weregiven an opportunityto consult with a
UnitedStates citizen detaineeI8'. Moreover,Mexico's
administrationof consular notification is erraticand
inconsistent, and appearsnowhere to ensuresuspended
proceedings while an Amencan detainee is permitted to speak
tohis or her cons~late'~~.
179
Specifically,Articl128,Section IV makes noprovisionfor informing
the detained foreign national that he maydecline consularnotification,
deprivinghim of the opportunityto decide whether consularnotification
shouldbe given.See Zamora Pierce Declaration, par24, Annex 5;
RichardsDeclaration,para. 5, Annex 6. This omissionmay be due to the
practicaldifficulty of ensuringprecise, technical compliancewith Article
36(l)(b). In any evenitconfirms that informingtheindividual is not an
end in itself, but rather a procedural device to furtherconsular no-ification
a purposethat is achievedby actual notice, howeverit occurs.
180SeeZamora PierceDeclaration, para.24,Annex5.
18'See id.
182See State PracticeDeclaration,paras. 43-47, Annex4.6.38 Withvery few exceptions,our posts surveyed
worldwide(includingthose in host countries with which we
havebilateraltreaties)could not identify any law,regulation or
judicial decisionin any receiving Statethat precludes
questioningof a suspectbefore he or she has been given
consularinformationor that in anyway links the right to remain
silentto consularinformation.
6.39 Whenwe lookto practice regarding notification to the
consularofficer,and then accessby the officer to the detainee,
we also find no linkto interrogation. The majority (fifty-seven)
of the eighty-fourStates in whichthe provision of consular
notificationto the lJnited States is governedby the VCCRand
on whichwe have information routinelynotiQ United States
consularofficerswithin seventy-two hoursofthe detainee's
request for notification. In none of these fifty-seven countries,
nor in anyof the remainingtwenty-seven thatdo not routinely
provideconsularnotification, is there any law, regulationor
judicial precedentabsolutelybarring questioning of a detained
foreign national untilconsular notification hasbeen given'83.
6.40 Withrespectto access, in some States consular officers
generally are notallowed to have accessto detained foreign
nationalsduringan initial period of detention and
investigationlg4.In the vast majority of VCCRcountries,
however,consularaccessto detainees - by telephone orin
person - is readilygranted when requested. Nevertheless, it
usually occursonly after at leastinitial questioning of the
detainee. The reasons for this Vary:permission fromjudicial or
other officiaismaybe required; consular officersmay not learn
of the detentionfor severaldays (or longer); the detaineemay
be in a remote location;or the consular officer's workloadmay
184See State PractiDeclaration,paras.21-25, 30, Annex4.
See,e.g.,id.atparas.36-44, Anne4.not permit an immediatecal1or visitlg5.
6.41 It is ironic for Mexicoto contend that the"practice" of
the United States in implementing Article 36(l)(b) supports its
interpretation of "withoutdelay"Is6,given thatithas brought
this case. In any event,the United States,likethe vast majority
of States Parties, measurescompliance with its Article 36
obligations against a standardof reasonableness underthe
specific circumstances (anticipatinga periodofbetweentwenty-
four and seventy-twohoursas a rule of thumb),not byreference
to the taking of specificstepsin the criminaljustice system.
Domestically, we provideguidance that is plainlyconsistent
with the meaning giventhat term here: "[Tlhere should be no
deliberate delay, and notification [i.e., the provisionof consular
information to the individual]should occuras soonas
reasonably possibleunderthe circum~tances"'~~.Overseas,we
provide guidance to ourconsular officersthat is consistent with
that meaningls8. TheUnited States has never interpretedArticle
36 to bar a United Statescitizen from being questionedin a
legitimate criminal caseuntil he or she has receivedconsular
inf~rmation'~~.The United States encouragesitsconsular
Ig5Id. at paras. 31-35,Annex4.
187See Mexico Memorial, paras. 196-204.
188State Department Manual,supranote 73at p. 20, Annex21.
See Secretary of Stateto al1diplornaticand consularposts, 18Jan. 2001,
2001 State 10160,Annex22; 7ForeignAffairsManual400,Annex 23,
Exhibit 74, Mexico Memorial,Annex 28, A407. Mexicohidesthe
significance of the 2001cableas a definitive statementof United States
practice with respect to assistingits nationais abroad.coMemorial,
ara. 185n. 204.
' Mexico wrongly suggests,Mexico Mernorialpara. 197,that the current
views of the United Statesweredopted for purposesoftheLaGrand
litigation", and are inconsistentwith its pnor practice. SeeMexico
Memorial, para. 197. Thiss untme. The United Statestookthe position
well before the LaGrandcase,on the basis of careful consideration ofthe
VCCR text, the practiceof States,and its negotiatinghistory,that therewas
no basis for the reading Mexicowould give Article 36orthe remedy itofficers as a matter ofpolicy to cultivate relationshipswith
local officialsto try to receive "immediate"notificationwhen
United Statescitizens are arrested,and to obtain consularaccess
to United States citizen detaineesas soon as possible'90.Butthe
United Statesdirects its consular poststo make a diplomatic
protest, including a request foran investigationand reporton
the possiblebreach of the VCCR,only if consularnotificationis
not receivedwithin seventy-twohours of the arre~t'~'.
Mexico'sMemorial refers the Court tothe practice of no other
seeks. SeeCompliance Declaration,para. 14,Annex 1. While theUnited
States hasalways aggressively sought to protectits nationals,it has often
acted ona basis of policy, notegalentitlement. Its past interchangeableuse
of words like"should immediately","must promptly", and"must without
delay" nevergave these terms the meaningMexicowould give them or
linked theobligations of Article 36 to the ordinaryconductof criminal
investigations. In paragraphs 197-199,Mexico's Memorialmisstatesthe
si~mificanccof two statements madeby StateDepartmentofficials
expressingconcern about statementsmadeby United Statescitizensto
whom UnitedStates consular officershad not been givenaccess. Close
examination ofthe sources citedshowsthatthese were in extreme situations,
one involvinga politically motivated detentionand the otherconcems about
torture andsevere mistreatment in Mexico. In neither case did the United
States take theview that the VCCRbarredthe taking of statementsbefore
consular information, notice, or access. Indeed,in the case of the situationin
Mexico, the State Department expresslyrecognizedthat itsconsularofficers
could not interferewith Mexico'scriminaljustice system,becausetodo so
would infringeits sovereignty.See infranote 288.
19'See7ForeignAffLzirsManual411.3,Annex23, Exhibit74; Mexico
Memorial Annex 28, p. A410. There is a significantdistinctionbetweenlaw
and policy. Attemptirigto obtainconsularaccess prior to the givingof
statementsinno way evidencesa belief that Article36bars takinga
statementbefore consular informationis given,or notificationandaccess
provided. Mexico's consular officersseekto be notifiedof detentionsof
Mexicannationalseven when notificationis notrequiredby the VCCR. See
ComplianceDeclaration paras. 17,4 1,Annex 1. The efforts of theUnited
States aggressivelyto assist its nationalsno more changesthe meaning of
Article 36thando Mexico's.
19'SeeSecretaryof State to al1diplomaticand consularposts, 18Jan. 2001,
2001 State 10160,Annex 22, para. 6, Annex22; 7 ForeignAffairsManual
415.4-1,Annex23, Exhibit 74;Mexico MemorialAnnex28, p. A417.StatesParties. The Court has nobasis forconcludingthat any
StatePartyto the VCCR - neither Mexico, nor theUnited
States,norany other State Party - has interpretedand applied
the phrase"without delay" inthe way Mexico asks the Court to
do here.
6.42 Finally,it is importantto recognize that many States,
includingthe UnitedStates,have entered into bilateralconsular
agreementsthatalso address the obligations of consular
notification. These agreementsprovide greater,not lesser,
protectionsthan the VCCRby ensuring that Statesare informed
when theirnationais are detained regardlesswhetherthe
detaineewishes notificationto occur. Under many of the
bilaterai agreementsto whichthe United States is aparty - with
nearly sixtyother States - notification to the consularofficers
must occurwithin a setperiod of time, in some casesup to four
daysIg2.Withonly a few exceptions'93,the StatesParties to
19'See,e.g.,Consular Convention,1June 1964,United Statesof America-
Union ofSoviet Socialist Republics, art.1, 19U.S.T. 5018, Annex 23,
Exhibit80,(applicableto Armenia,Azerbaijan, Belanis,Georgia,
Kazakhstan,KyrbyzRepublic,Moldova,RussianFederation,Tajikistan,
Turkmenistan,Ukraine and Uzbekistan)(consularnotificationshalltake
place "withinoneto three days fromthe time of arrest or detention,
dependingonconditionsof communication"); Consular Convention7 , July
1972,UnitedStatesof America-HungarianPeople'sRepublic, art. 41,24
U.S.T. 1141,Annex 23,Exhibit81,(mandatorynotification "withoutdelay
and in anyevent within3 days"); ConsularConvention,31 May1972,
United Statesof America-Polish People's Republic, ar1,24 U.S.T. 1231,
Annex23,Exhibit82(mandatory notification "within three days from the
time of detentionor arrest"inthe case of non-resident citizens ofthe sending
State);ConsularConvention,9 July 1973,United States ofAmenca-
CzechoslovakSocialist Republic, art. 3, .I.A.S. 11083,Annex 23,Exhibit
83(mandatorynotification"withoutdelay .. andnot laterthanafter three
calendardays");Consular Convention,5 July 1972,UnitedStatesof
America-Socialist Republic of Romaniaa,rt. 22, 24U.S.T. 117,Annex 23,
Exhibit84(notification to take place "withoutdelayand, inanyevent, not
laterthanaftertwo days"); ConsularConvention, 17September 1980,
United StatesofAmerica-People'sRepublicof China, art.35,33 U.S.T.these agreementsarealsoparties to theVCCR. The bilateral
agreements are intendedto ensurethat the notification of the
consular officeractuallyoccurs within a defined period of time;
this demonstratesanunderstanding that completion of this
process "without delay" pursuant to the VCCR could take more
time than the bilateralagreementsspeci@. Moreover, even
when bilateral agreementsrequire notification "immediately",
partiesto these agreementsdo not understand them to require
notification beforequestioning'94.Nor are these agreements
implemented in awaythat suggeststhey bar questioningof a
detained foreignnationaluntil consular notification hasbeen
given'95.
6.43 Thus, Statepractice notonly supports but, in fact,
bolsters the conclusion that "without delay"can only be
interpreted as performance inthe ordinary course of business,
while refraining fromprocrastinationor deliberate inaction. It
in noway providesa foundationon whichto impose the
2973,amended by exchangeof notes, 33 U.S.T.3048, Annex 23, Exhibit85
(mandatory notification"immediately,but nolaterthan within four days
fromthe date of arrestordetention"); ConsularConvention, 12 May1988,
UnitedStates of America-Republicof Tunisia,enate treaty documentno.
101-12,Annex 23, Exhibit86(mandatorynotification "without delay", and
"without delay" conternplates"that this notificatione made within
three days followingrestrictionon the freedom of nationals of the sending
State,or in cases where thenotificationcannotbe made within three days
because of communicationsor other difficulties,as soon as possible
thereafter").
193The exceptionsare:Belize;Brunei; The Gambia; Sierra Leone;
Singapore;and Zambia. The terms of the bilateral consular convention
between Great Britainandthe United States,Consular Convention, 6 June
1951,United StatesofAmerica-UnitedKingdomof Great Britain and
Northern Ireland,art. 16,3U.S.T. 3426,Annex23, Exhibit 86,continueto
applybeîween al1sixofthese states and the United States, as a matter of
Statesuccessionto treatyobligations.eeState Department Manual, supra
note 73 at pp. 47-49,Annex21.
194See State Practice Declaration,para. 28 andn.5, Annex 4.
195See State Practice Declaration,para. 30, Annex4.extraordinaryreading of "without delay" thatMexico advances
in the faceof the practice of more than 160Statesthat aretoday
party to the VCCR.
3.StatesHave NotAcceptedMexico'sProposed Definition
BecauseResort to that DefinitionLeadstoAbsurd Results
6.44 Any serious considerationof Mexico's proposed
definitionquickly showsthat - unlike the meaning given to
"without delay"by the United States - it would leadto
manifestlyabsurd results. Forexample, if weassume arguendo
that "without delay" means"immediately andprior to any
interr~gation"'~~ and implement that definition "literally"as
Mexicodemands, making it a genuine automaticrule that
admits ofno exceptions orqualifications'97,we would quickly
find, by reference to a fewofthe fi@-four cases,that the public
would havebeen seriously endangered. Sixof the fi@-four
cases involvethe disappearanceand subsequentmurder of
adolescentsor chi~dren'~~U . nder Mexico'srule, in some future
case, the competent authoritiesmight arrest a foreignnational
who would know the whereaboutsof a possibly still-living
child; theywould provide consular informationbefore any
questioningoccurred and, if the detaineerequested consular
notification,delay any interrogation until therelevant consulate
was notifiedand a consularofficerhad visitedthe individual,
arrangedfor assistance and could observe theinterrogation.
PerhapsMexico would grant an exceptionto this hard rule
where tender lives are at stake. But would interrogationbe
permitted in a case wherethe arrested individualmight instead
have information aboutthe locationof a largedrug shipment
19'Mexico Memorialp, ara.204 (emphasisadded).
19'See Mexico Memorialp, ara.204.
'98See #36 LealGarcia,#38 MedellinRojas#39 MorenoRamos, #41
RamirezCardenas,#51 PerezGutierrez, 54 ReyesCamarena.SeeCases
Declaration,correspondingAppendiceA,nnex2.expected to arrivethat day and soonto be for sale on street
corners? In the caseof the arrest of a personwho may have
knowledge of the location in anurban centerof a bomb that has
not yet exploded? What about anindividualinvolved in
mislabeling prescription drugs currently incommercial
circulation containingtoxic substances?
6.45 Leaving asidethe dangerous implicationsthat Mexico's
rule has for public safety, it is clear that thecriminaljustice
systems in the UnitedStates (and mostother States Partiesto
the VCCR) would be setiously impeded if Mexico's
interpretation wereadopted. There arecurrentlyover 17
million foreign nationals living in the United tat tes'^ O f.the
184States that maintainconsulates in the United States,thirty
do not have a consulateoutside of WashingtonD.C., and
seventeen more do not have consulates otherthan on the eastem
seaboard (typicallyinNew York and connectedwith their
Mission to the United~ations)~~'. Even if only some
appreciable minorityof the thousandsof foreignnationals
arrested every day inthe United Stateswere to request consular
notification, interrogations of these individuals would haveto
be postponed untilthe competent United Statesauthorities were
ableto locate a corisularofficer andthat officerdecided whether
to communicate withthe individual beingdetained - perhaps as
far away from WashingtonD.C. as Hawaiior Alaska.
6.46 The consularofficer could well decide,after some
consideration, notto communicate with or assistthe detained
national. For it is important to rememberalwaysthat Article 36
does not require consular officers to assist theirnationals in
199SeeUnited StatesCensusBureau, TheForeign BornPopulation in the
UnitedStates: (Table.1)Population by Sex,Age, and Citizenship Status,
CurrentPopulationSurvey,PPL-135(Mar.2000).
200SeeUnitedStates Departmenotf StateForeign Consular Oflees in the
UnitedStates,ublication10444,revised8Aug.2003, available at
http://www.state.gov/s/cpr/rls/fco.detention either"withoutdelay" or at all. Accordingly, United
Statesauthoritieswouldbe forced to postpone the interrogation
of a capital murdersuspectindefinitely while waitingfor a
consular officerto decidewhether or not to visit or othenvise
communicatewiththe detainee. Neitherthe detainee northe
United States wouldhave any legal basisfor compelling the
consular officerto assistthe foreign national and,under
Mexico's inflexiblerule,proceeding with the interrogation in
the absence ofa requestedconsular officer would result ina
voidedconvictionanda new trial.
6.47 Finally, Mexico'sinterpretation would havethe effect of
prolonging detentionsor making the orderly performanceof
consular functions impossible. A person may be arrested,
detained, charged,andreleased on bail or other conditions al1
within a span oftwenty-fourto forty-eight hours. If immediate
notification were requiredand al1processes to cease pending
arrivalof the consularofficer,this might well prolong the
detentionof the person. Alternatively, if processes were notto
ceasepending arrivalofthe consular officer,then those officers
wouldbe inundated withnotices regarding persons who
ultimately areonlybrieflyin custody.
4. TheTravaux PréparatoiresSupporttheDefinitionGivenTo
" WithoutDelay" by the UnitedStates
6.48 Customary international law,asreflected in Article 32
of the VCLT, providesthat recourse to the travauxis had only
where interpretationunderthe principles outlinedin Article 31
"leaves the meaningambiguous or obscureor leadsto a result
which is manifestlyabsurdor ~nreasonable"~~'.The United
States submitsthatthephrase "without delay"plainly has the
meaning givenitby the United States,not that given to itby
Mexico. Becausethe meaning of "without delay"is clear from
'O1VCLT,art.32,Annex23,Exhibit 71the ordinary senseof thosewords in context, and is confirmed
by State practice, resortto thetravaux is unnecessary.
Moreover, as interpretedbythe United States,the phrase
implies no absurdorunreasonableresult that suggestsa further
need to consult the travaux.
6.49 We address the travaux,however, becauseMexico has
put them at issue. Mexico'sclaimthat "[tlhe travaux
préparatoires confirm thatthe intent of the phrase 'without
delay' wasto require unqualifiedimmedia~~"~~r~ ests upon a
highly selectivereadingof thetravaux to conjureup a
consensus that never existed. In fact, the travaux fail utterly to
support Mexico's assertionthat negotiators intended"without
delay" to havethe specialmeaningit proposes. Contraryto
Mexico's hopeful assertion,the only conclusion that can be
drawn "unqualified" from thetravaux is that, as is so often the
case in multilateral negotiations,there was a lastminute
agreement to use the words "withoutdelay" inrelationto the
obligation to infonn, but no clearconsensus asto how this
would be applied. Moreover,a fulland fair examinationalso
reveals why Mexico failedto provide any supportingcitation to
the travaux to bolster its ropositionthat "without delay" means
"prior to interrogation"20. The travaux expresslycontradict
Mexico's position onthe interrogationpoint. Indeed, it can be
saidwith complete confidencethatthere is absolutelynothing in
the record indicating thatthesetwo words were intendedto be
related to eitherthe takingorthe refraining fromtaking of
specific actsby law enforcementauthorities.
6.50 The text adoptedby the ILCused the term "without
undue delay" to accommodatethose States whose domestic
'O2MexicoMemorial,para. 179.
'O3Suchadiscussionis absentfromMexico'sMemorial.SeeMexico
Memorial,paras.183-84.lawsprovided fora period of incommunicadodetention204.
When the conferenceof State representativeswas convened to
negotiate the convention based on the ILCtext, however,
several delegatesexpressed concern aboutthe word "undue"
because it might be interpreted as inviting delay205.At the same
time, others were concemed that a requirementto notifi
"without delay" in every case would be impossiblefor them to
impiement206.
6.51 The debate at the subsequentnegotiatingconference
shifted to the possibility of defining "without delay" by
adopting a specifictime period for notification. But the
delegations' roposals in this regard varied widely. ~erman~"
and British20rproposalsrespectivelyof one month and forty-
204
The InternationalLawCommission'scommentaryto Article 36 States
"[tlhe expression'withoutundue delay'used inparagraph l(b) allows for
cases where it is necessaryto hold a personincommunicadofor a certain
period for theurposesof the criminal investigation". Draft articles on
consularrelationsadoptedby the InternationalLawCommissionat its
thirteenthsession,documentAlCONF.2516,in UnitedNations, Conference
onConsularRelations, Vol. II,Annexes:Proposalsandamendments
submittedin the SecondCommittee, documentA/CONF.25ll6/Add.1, 1963,
24, para 6,Annex23,Exhibit 90.
'" See. e.g., United Nations,Conferenceon ConsularRelations. Vol 1,
Summaryrecordsofplenary meetingsand themeetings oftheFirst and
SecondCommittees, document AlCONF.25116,1963,p. 339-340,para. 20,
Annex 23, Exhibit7. ("There shouldbe a clear obligationto inform the
competentconsul ...,and to do sopromptly....That was why[the
delegate from the UnitedKingdom] hadproposedthatthe word 'undue'
shouldbe deleted;thewording of the drafi impliedthat somedelay was
p06missible".)
207Seesupra note 28.
Federal Republicof Germany: amendmentsto article 36, document
AlCONF.25lC.2lL.74,in United Nations,Conferenceon Consular
Relations, Vol.II,Annexes:Proposals andamendmentssubmittedinthe
SecondCommittee, documentAlCONF.25ll61Add.1, 1963,p. 81,Annex23,
Exhibit92.
208United Nations, Conferenceon ConsularRelations,Vol.I, Summary
records ofplenary meetingsand themeetingsof theFirstandSecondeight hours demonstratedthewidespread disagreementamong
delegations. The various delegations advocatedthat "without
delay" should require notificationwithin: forty-eighthours or
less (United ~in~dorn)~'~" ;shorter period, butperha s longer
than" forty-eight hours (spain)'lO;ten days (Greece) 8 ; "one or
two weeks" (~orocco)''~; lessthan one month (~unisia)~'~o ;ne
month (South ~orea)~'~;and "within one monthwould notbe
practicable" (~u~oslavia)''~. The United Kingdomdelegate
had also been prepared toaccept "a sentence tothe effect that
the obligation applied only where persons were detained for
more than 48 hours" in orderto address "the possibility of
specialproblems, as in the case of neighbouring countries
where eople crossed the border frequently forwork or pleasure
7921
... ! No delegation proposed a specifictime period of less
than 48 hours, nor did any delegation referencethe need to
notify prior to interrogationby the authorities. Some
delegations expressed reservationsabout statinga concrete time
period for fear that authoritieswould routinelydelay
notification until the time periodhad run.
6.52 After every proposal had failed, and after Article 36 had
been voteddown in its entiretyover this thorny issue, in the
very finalhours of the negotiating conferencethe impasse was
resolvedwith agreement on the current text, which uses
"without delay" in three placesin paragraph (l)(b). But no
ComrnitteesdocumentAiCONF.25116,1963,pp.339-340,para.20, Annex
23,Exhibit7 ("Theaniendment bythe FederalRepublicof Germanywould
allowfortoo longadelay;if theCornmitteewished to allow somelatitude
themosthecould accept would be about48 hours.")
209Id.atp.340,para.20.
210Id.atp. 340,para.27.
211Id.atp. 339,para.15.
'" Id.atp. 341,para.35.
213Id.atp. 339,para.28.
214Id.atp.338, para.II.
'15Id.atp.338,para.10.
'16Id.atp. 340,para.21.agreement was reached amongstthe delegationsas to what
precisely this phrase meant. A farragoof views remained.
None, however, supports Mexico'sassertionof a link to
interrogation. At best one can Saythat "without delay" was
generally understoodto be describinga period of time that
would Varywith the circumstances,butshould not be extended
by deliberate action or inaction. In light of this discussion,
States Parties presumablyfound"without delay" to be
acceptable because they assumedit would leave thema
reasonable degree of discretionin application2".
D. The United StatesCivesFullEffectTo Article36(1) and
Providesthe "ReviewandReconsideration" Required
UnderArticle36(2) in ItsCriminalJusticeSystemsand
ThroughExecutiveClemency Proceedings
6.53 Mexico also contendsthat the United States federal and
state criminaljustice systemsdo not give "full effect" to the
"purposes for which therightsaccordedunder [Article361are
intended772'8M . exicois wrong. We first examinethe LaGrand
judgment, which interpretedtheobligations of receiving States
under Article 36(2). Wenext addressthe fourprincipal
argumentsthat Mexicomakesagainst the United States with
respect to Article 36(2):(1)its assertion that "the United States
has violated Article 36(2)by foreclosing legalchallengesto
convictions and death sentences"through the applicationof
procedural default rules219( ;2) its claim that executive clemency
proceedingsdo not provide"uniform, fair or meaningfbl"
"' States have subsequentlydemonstratedthis understandingin their
practice, by implementingtheobligationinarietyof ways. Yet even the
broad range of practice doesnot include anysignificanteffort to complete
notificationproceduresbeforethe interrogationof a detained foreign
national.eeState PracticeDeclaration,passim, Annex4.
218VCCR, art. 36(2),Annex23,Exhibit 1.
219See Mexico Mernorial,headingfor Chapter IV(B)(2).review and recon~ideration~~~ (3) its complaintthat the "refusa1
[ofUnited States courts]to recognize Article36 rights as
fundamental to dueprocess for a foreignnational .. .prevents
the courts 'from attaching any legalsignificance'" to Article
36(1) brea~hes~~'a ;nd (4) its invocation ofthe doctrineof
effectiveness in arguingthat "[ulnder international law, the
United States is required to take whateveraction is necessary to
give effect to its treatyobligations"222.None of these
arguments has merit.
1.TheImplicationsofArticle 36(2)andLaGrand for theLaws
and Regulations ofthe ReceivingState
6.54 In LaGrand,the Court statedthat the application of "the
procedural default rule [of the United States]prevented [the
United States courts]from attaching any legal significanceto
the fact" of the breachof Article 36(1)223.TheCourt fùrther
stated that "the procedural default rulehad the effect of
preventing 'fulleffectfrom being givento the purposes for
which the rights accordedunder this article [Article 36(l)(b)]
are intended"'224.The Court found, however,that "[iln itself,
the rule does not violate Article 36"225.The breach occurred in
its application- "by not permitting the review and
reconsideration, in light of the rights set forth in the
Convention,of the convictions and sentences ... after the
violations .. .[ofArticle 36(l)(b)] hadbeen e~tablished"'~~.
6.55 Significant.ly,when it announcedits remedy in the
220See Mexico Mernorialh, eadingforChapterIV(B)(3).
221See MexicoMernorialp , aras.238,299-345.
222Mexico Mernorialp, ara.284; SeegenerallyChapterIV(B)(4),paras.
283-298.
223LaGrand,Judgment,para.91.
224SeeLaGrand,Judgment,para.91.
225LaGrand,Judgment,para.90.
226LaGrand,Judgment,para.128(4).dispositif;the Court didnot Saythat review and reconsideration
mustbe providedby the courts, even though the breachhad
arisenfromjudicial applicationof the procedural defaultrule.
Rather, theCourtheldthat, in the eventof a breachof Article
36(l)(b), "the UnitedStatesof America, by meansof its own
choosing,shall allow thereview and reconsiderationof the
conviction and sentencebytaking account of the violation of
the rights set forthinthat onv vent ion "h^s holding clearly
confirmedwhat Article36(2) expressly permits - that receiving
Statesmay establish lawsand regulations of general
applicability, withoutcreating special laws and regulations for
foreign nationals, so longas they ensurethat the purposesof
Article36(1) are givenfull effect. As the first sentenceof
Article36(2) requires,the precise contoursof the process of
reviewand reconsiderationare leftto the discretion of the
receivingState.
6.56 Thus, as construedby the Court in LaGrand, Article
36(2)has two functions-basic function, and a remedial
function. Its basicfunctionis to make clear that theobligations
established by Article36(1) should be exercised in accordance
with thelaws and regulationsof the receiving State - which
lawscan includethosegoverning the criminaljustice process,
but such laws and regulationsshould "enable full effectto be
givento the purposes"for which those obligations are
~ndertaken~~~S .econd.in the event that abreach of Article
"' LaGrand,Judgment,para. 128(7). The Court'sorder that theUnited
Statesprovidereviewandreconsideration"by means of its own choosing"
was alsoignificantlydifferentfrom Germany'sfourth submission,which
asked foran assurancethat "theUnited States will in lawand practice
the effective exerciseof therights under Article 36"of the VCCR,LaGrand,
Judgment,para. 117.
228SeeVCCR,Article36(2),Annex 23, Exhibit1("The rightsreferred toin
paragraph 1of this Article shall beexercised inconformitywiththe laws and
regulationsof the receivingState, subject to the proviso,however, that the36(l)(b) has occurredand seriouspenalties have been imposed
on a foreign national detainee, thereceiving Stateshould still
give full effectto the purposesof Article 36(l)(b) by providing
"review and reconsiderationofthe conviction and sentence"229
in light of the violation,by meansof its own choosing. These
are two distinct functions,both arisingunder Article 36(2), that
may overlap in their execution.
6.57 As will be explained, the lawsand regulationsof the
United Statesfullycomply withArticle 36(2), including in
cases in which breaches of Article36(l)(b) haveoccurred. The
United States provïdes"reviewand reconsideration"through
the operation of thejudicial processand the clemency process.
These processes together givefulleffect to the purposes of the
requirements of Article36(1)and, inal1cases, allow
appropriate reviewand reconsiderationof convictionsand
severe sentences imposedincaseswhere breachesof Article
36(1) may occur.
6.58 Mexico'sfocuson the remedial functionof Article 36(2)
ignores its more basic function,which is to emphasizethe rights
ofthe receiving Stateto conduct itsown affairs inaccordance
with its own laws. The Court'sholding inLaGrand, that
procedural defaultrules of thereceiving State arenot
automatically inconsistent with theobligations imposedby
Article 36(2), respected this basicfunction. But Mexico
conflates these functions,whichmust be consideredseparately
and in their proper sequence: first,the basic function;and then
the remedial one. Mexicohasinstead started withthe remedial
function and then attempted to recastthe basic function of
Article 36(2), findingin it affirmativeobligationson the
receiving Statethat do not in factexist - makingthe tail wag the
saidlawsandregulationsmustenablefulleffecttobegiventothepurposes
forwhichthe rightsaccordedunderthisArticleare intended.")
229LaGrand,Judgment,para. 128(7).dog.
6.59 The principalpurpose of Article36(2)is not to mandate
the enactment of specific laws and regulations,whether to
enforce the requirements of Article 36(1)or to provide remedies
for breachesof Article 36(1). It is quitethe opposite. Article
36(2) recognizesthe sovereign right of Statesto order their own
affairs, and to implement their internationalobligationswithin
the contextof their own criminaljustice systems,so long as
these laws and regulations do not preclude givingfull effect to
the purposes of Article 36(1). Mexicoelevates theproviso of
Article 36(2)at the expense of the text to whichthe proviso is
attached.
6.60 The proviso establishes no affirmativeobligationto
create laws or regulations; it insteadprovides a boundary onthe
discretion of the receiving State. Moreover,theproviso should
be read andunderstoodprecisely - its requirementis that "full
effect" must be givento the "purposes" of Article 36. It is not
that laws andregulations must be adapted or changed in any
particular way, orthat they must give effectto purposes that are
not intended by Article 36(1).
6.61 Thus carefùl attention must be givento the purposes of
Article 36(1). We have previously discussedboth the purposes
for which these requirements are accorded,and the purposes,
such as interferencein an investigation,for which they are not
accorded. The overarching purpose of Article36(1)is clearlyto
protect against secretdetention by ensuringthe possibility of
communicationbetween the foreign national and his consular
officer even thoughthe foreign nationalis detained. Nowhere
in Article 36(1),however, is the individual givena right to
compel the sending State to assist him or to respondto his
request on a timely basis. Thus the purpose of Article 36(1)
cannot be to ensurethat a foreign national receivesconsular
assistance; it can only be to allow for itspossibility. Thatpossibility is achieved oncethe foreign national has been
provided consular informationand makes no request for
notification or the consularofficer is aware in factof the
detention, regardless of how he becomes aware.
6.62 We now turn to demonstrating why Mexico's
contentions are wrong. The United States criminaljustice
systems in factdo give full effect to Article 36(1),first through
the normaljudicial processand finally, when necessary, through
executiveclemency procedures.
2. TheUnited StatesCriminalJustice SystemsCive "Full
Effect" to Article 36(1),andProvide AppropriateRemediesfor
Breaches, Throughthe Judicial Process
6.63 The first respectinwhich Mexico claims that theUnited
Stateshas breached Article36(2) is by "foreclosing legal
challengesto convictions and death sentences" throughthe
applicationof procedural defaultr~les~~'.Mexicois unwilling
to acceptthe fact the criminaljustice systems of theUnited
Statesaddress al1errors in process through bothjudicial and
executive clemency proceedings,relying upon the latterwhen
rulesof default have closedout the possibility of the former.
That is, the "laws and regulations" of the United Statesprovide
for the correction of mistakes thatmay be relevantto a criminal
defendantto occur through acombination ofjudicial reviewand
clemency. These processestogether, working with other
competent authorities, give fulleffect to the purposes forwhich
Article36(1) is intended, in conformity with Article36(2).
And, insofar as a breach of Article 36(1) has occurred,these
procedures satisfy the remedialfunction of Article36(2)by
allowingthe United Statesto provide review and
reconsideration of convictionsand sentences consistent with
LaGrand.
230SeeMexicoMernorialh , eadingof ChapterIV(B)(2).6.64 In the first instance,thejudicial systemcan deal with
any claim arising fromArticle36(1) if it is timelyraised.
Indeed,the United Statesaffirmatively encouragesjudicial
authorities to ensurethatconsularnotification requirements
have been compliedwith,and some states haveplaced the
obligation of providingor confirming consular informationon
their magistrates23'.IfArticle36(1) is not fullycomplied with,
trial courts can considerrequestsfor extensionsoftime to
permit consular notificationor even assistance, ifoffered, or for
other relief basedon the breach. They will not automatically
bar the use of a defendant's statements simplybecause the
defendant was not provided withconsular informationon a
timely basis, butthey will barthe use of a statement ifthe
foreign national gaveit involuntarilyor without understanding
and waiving his "Miranda" rights. This approachcannot offend
the remedial requirementsof Article36(2),giventhat the
purposes of Article 36(1)do not include alteringthe normal
course of law enforcementinvestigations or preventingthe
taking of statements.
6.65 In addition, theUnitedStates providesreview and
reconsiderationthrough extensiveappellateand collateral
review of trials and sentencinghearings. In those cases where a
VCCRbreach is allegedattrial, appeal courtswillreview how
the lower court handledthat claim along with al1others in the
normal process of direct appealand collateral review,in
accordance with relevantmunicipal la^^^ n.this way, review
and reconsiderationtakesplace in the normal course of
appellate review ofal1assertederrors at trial. In cases in which
232Incasesinwhichinformationaboutthe possibilityofconsular assistance
isprovidedpriorto trial,anyadverseconsequencesofdelay maybe
addressedbythetrialcourtinthecourseof disposingofpre-trialmotions
andwould, however decidedb,epreservedforconsiderationappeal and,
ultimately,ringtheclemency process.the defendantdoes not claim a VCCR breachduring trial,
however,procedural defaultruleswill possiblypreclude such
claimson direct appealor collateral review,unless the court
findsthere is cause for thedefault and prejudiceas a resultof
the allegedbreach. Procedural defaultrules, in and of
themselves,do not breach Article36(2). This Court so stated in
La~rand~~" Indeed,such rules, in variousforms, are common
wor~dwide'~~A . s will be demonstratedin Chapter VII.D, infra,
the operationof United Statesprocedural defaultrules have not
had the effect of foreclosingthe remedialpurposes of Article
36(2)as to any of the fifty-four cases thatare the subjectof
Mexico's~~~lication~~~.
6.66 Mexicononethelessreargues the procedural default
issue,seeking fromthe Court the square rejectionof suchrules
that it declinedto give inLaGrand. Indeed, inits submissions
to the Court, Mexicorequests thatthe Courtgo beyond
LaGrand and declare"that the United States,in applying the
doctrineof procedural default,or any otherdoctrine of its
municipal law,to precludethe exercise andreview of the rights
affordedby Article 36ofthe Vienna Convention,violated its
international legalobligationsto Mexico, ... as provided by
Article36 of the Vienna It apparently would
havethe Court make this declaration even incases in whichthe
breachwas known well before trialbut notraised; indeed,
Mexicoseemsto suggestthat there areno circumstancesunder
which a claimcan be defaulted - thejudicial process must
remainopen to permit the claim tobe raisedwhen al1
233SeeLaGrand,Judgment,para. 90.
234SeeWeigendDeclaration,paras. 15,25,Annex3.
235SeeLaGrand,Judgment,para. 91. Mexicoincorrectlyequates legal
significancewithjudicial effect. The legalsignificanceof a breach of an
obligationby aoveniment can be addressednotonlyby a court, but alsoby
the executivebranch of a government. Eachcanrecognizethe existenceof a
le al obligationand indicatean appropriateresponse.
Mexico Mernorial.para.407.proceedingsare over, at thelast minute, regardlessof whether
earlieropportunitieswerepursued. But Mexicodoes not
explainwhy this Court shoulddiscard its earlierholding in
LaGrand.
3. TheUnitedStates CriminalJustice SystemsAlso Give "Full
Eflect " ToArticle 36(1) ThroughExecutiveClemency
Proceedings
Mexico argues thatthe United Statescannotfulfill the
6.67
remedialaspects of Article36(2) through theclemency process
becauseexecutiveclemencyproceedings donotprovide
"uniform, fair or meaningful"review and rec~nsideration~~~.
Mexico is wrong. Whiletheclemency proceduresof the fifty
statesof theUnited States arenot uniform (justas theirjudicial
systemsare not), these procedures are an integralpart of the
existing"laws and regulations"of the UnitedStatesthrough
which errorsare addressed,and they provideanappropriate
mechanismfor review andreconsideration incaseswhere
breachesof Article 36(l)(b) have occurred. Wherejudicial
remedieshave been exhaustedand yet reviewand
reconsiderationhas nottakenplace, the UnitedStatescan
nonethelessmeet its obligationsthrough theclemency process.
6.68 Clemency is definedas "[mlercy or leniency ... the
power ofthe President or a govemor to pardona criminal or
commutea criminal senten~e'"~~.It is anexecutiveprerogative
with deeproots within thecommon law understood
238See MexicoMemorial,headingforChapterIV(B)(3).
BlackS LawDictionary,p.245(1999), Annex23,Exhibit94.
239SeeSchickv.Reed, 419 U.S.256,260-266 (1974),Annex23, Exhibit95
(discussing Englishandencanlegal historyof clemencypower);
Herrerav.Collins,506 U.S. 390,411-414 (1993),Annex23, Exhibit59
(same). Seealso Halsbury,TheLawsofEngland, Vol.VI,p.404 (1909),
Annex23, Exhibit199;WilliamBlackstone,Commentarieson theLawsof
England,Vol 4, pp.*396-397(1809),Annex 23,Exhibit198.historically both as a vehicle for leniencyor merc ,and as a
means to ensure fair and correct legal o~tcomes~~?Clemency
in the modem erahas been viewed less as a means of graceand
more as a part of the constitutional scheme for ensuringjustice
and faimess in the legal process. It recognizesthat criminal
justice systemsrequire fail-safemechanisms to deal with claims
that were not, could not, or should not have been consideredby
the ASthe United StatesSupremeCourt indicated,
clemency functions effectively as "the historic remedy for
preventing miscaniages ofjustice wherejudicial process has
been e~hausted"~~~A . s one recent commentator noted,
"clemency is uniquely positioned to correct legal err~r"*~~I .t
remains an important feature of common law systems
worldwide, including both the federalgovemment of the United
240The United StatesSupreme Court has explainedthe purpose of
clemency, and consistentlyreinforced the importanceof it being a flexible
remedy. SeeExparte Grossman,267 U.S. 87, 120-121(1925), Annex23,
Exhibit96.
24'The modem Supreme Court has explained thecritical role that clemency
plays in the United States: "lt is an unalterablefact that ourjudicial system,
like theumanbeingswho administerit, is fallible. But history is replete
withexamples of wrongfully convicted personswho have been pardonedin
the wake of after-discoveredevidenceestablishingtheir innocence. ..
Recent authorityconfirms that over the past centuryclemency hasbeen
exercised frequentlyin capital cases inwhich demonstrations of 'actual
innocence'have beenmade." Herrerav. Collins,506 U.S. at 415,Annex
23,Exhibit 59 (citingM. Radelet, H. Bedau,& C. Putnam, InSpiteof
Innocence, pp. 282-356(1992)). ProfessorRadelet has hished an
aff~davitthat appearsas Annex 1to the MexicanMemorial.
242Herrera v. Collins,506 U.S. at 412, Annex23, Exhibit 59.
243Michael Heise,"Mercy by the Numbers:An Empirical Analysisof
Clemency and its Structure", inirginiaLawReview, Vol. 89,No. 2, 2003,
Apr., p. 253 (hereinafter,this article be referred to as "Heise, Mercyby
the Numbers"), Annex.23, Exhibit 97. Asthe SupremeCourt has
recognized, "[a] Govemor may commutea sentenceat any time for any
reason withoutreference to any standards".Solemv. Helm,463 U.S. 277,
301 (1983). Annex23, Exhibit 98.States,aswell as al1states that permit capital sentence^^^.
6.69 Mexico has suggestedthat,becauseclemency has
sometimesbeen describedas an act of grace,it is not a legal
remedy245.This ignoresthe fact thateachof the fi@-four
defendantshas a legalright to petition forclemency. No issue,
includinga claim ofbreach of the VCCR,is a priori excluded
fromthat process246.It isthe resultof theprocess, not the
availabilityofthe process,that dependson the "grace" - or
broad discretion - of the decisionmaker;the availability ofthe
process is a right. Moreover,it is that broaddiscretionto grant
clemencythat allows the processto takeaccountof anyclaim;
for example,that broad discretionallowedIllinois Govemor
GeorgeRyan to commutethe sentencesof threeof the fi@-four
Mexicannationals inthis case based,at least in part, on their
havingallegedly not receivedconsular information as
required247.
244
SeeHerrer a.Collin5s 06U.S.at 414,Annex23,Exhibit59;seealso
Heise, Mercy bythe Numbers,supra note243atp. 255 & n.70,Annex23,
Exhibit97(collecting statutes). ThePresidentis grantedclemencypower
aloneunderthe Constitutionto remit federal crimes,while state govemors
sometirnesexercise thispoweralone,andsometimesin conjunctionwith a
clemencyboard. Id.at pp. 254-255.
245 MexicoMemonal, para.245.
246 Mexicoerects a strawmanby assertingthatthe UnitedStatesclaimed
clemencyis "exempt from proceduralbamers that mayprohibit
considerationof an othenvisementoriouspetition"andthen referencesa
case inwhicha clemency petitionwas rejectedas untimelyfiled. See
MexicoMemorial,para.268. To be clear,the UnitedStateshasarguedthat
clemencyis available to hear claimsotherwisebarredby proceduraldefault
inthe courts. The UnitedStateshas notand would notarguethatstates may
notput reasonabledeadlinesand other administrativerequirementson the
filingof clemencypetitions.
247 On 11Jan. 2003,then-IllinoisGovernor George Ryan commutedthe
sentencesof #45 CaballeroHemandez,#46Flores Urban, and#47, Solache
Romero. SeeCases Declaration,Appendices45,46,47, Annex 2. In
announcinghis decisionto grant blanket clernen, ovemor Ryan
specificallyferred to the "menon deathrowwhowere denied"consular6.70 Mexicohas also attemptedto castdoubton the faimess
of the clemencyprocessby characterizingit aspoliticized and
by implyingracialor ethnic bia~~~~B .othpoints havevery
recently been discredited bya comprehensive andscholarly
statistical analysis ofclemency in the contextof capitalcases in
the United Statesthat Mexico failsto mention249.Mexico also
disparages therole and function of appointed pardonboards250,
when this same studydemonstrates that they"were more likely
than governors togant ~lemenc~"*~'.Mexico pointsto the
informationunderthe VCCR. He also referredto his conversationwith
MexicanPresident Vincente Foxw , hoexpressedhisdeepconcemfor the
VCCR breaches. SeeulsoGovemor GeorgeRyan,Addressat Northwestem
UniversitySchoolof L.aw,11Jan. 2003,availahleut
http:l/www.law.northwestern.edu/depts/clinic/wrongful/RyanSpeech.htm.
248 See MexicoMemorial,paras. 252-253,270-274.
249 See Heise, Mercybythe Numbers,supranote 243atp. 284,Annex23,
Exhibit97("[Dlefendantrace and ethnicitydid notappear toinform
clemencydecisions. ... 1 did not find thatracialor ethnic minoritieson
death rowwere any lesssuccessfulin obtainingclemencythantheirnon-
minority counterparts.Myfindingat the clemency stage comports withprior
empirical studiesof clemency yet conflictswith widely-heldperceptions
about the general influenceof race in the death penalty context."); at p.
297 ("the fact that onelong-assumed contributorto inconsistentandarbitrary
clemencydecisions - politicalfactors- did notemergeas significantin this
study remainsimportant,especially insofarasthefindingsconflict with
conventionalwisdom andisolatedincidents".);see alsoAmericanBar
Association,ClemencyandConsequences:State governorsandtheimpact
ofgrantingclemencyrodeath rowinmates,2002, July, p.2, availahleut
http:l/ww.abanet.org/~mjust~juvjus/jdpclemeffect02.pdf,Annex 23,
Exhibit99 ("grantingclemencydoes not resultinlow approvalratingsor
threaten successin a future election,nce near1.al1govemors whogranted
clemency receivedhighapproval ratingsor werere-electedifthey sought
re-electionor higher(@ce. ... Opportunistswillattacka governor's grant
of clemency, sinceitmay seem an easy target,butthereis no evidenceto
supportthe assumptionthat granting clemencyimpacts publicapprovalor
successat electiontinie.") (emphasisin original).
''OSee MexicoMemorial, paras.252, 261-267.
Heise, Mercybythe Numbers,supranote 243atp. 299, Annex 23,
Exhibit97.relatively small nurnber of successfulclemency petitions252,
ignoring the factthat this is entirelyto be expected sincecourts
do an increasinglyeffectivejob of themselves identifiing and
addressingthe defects in convictionsthat in prior years might
have supportedthe grant of ~lemenc~~'~.
6.71 Mexicohas wrongly suggested,both in its ~ernorial~'~,
and during its oral presentation at the provisional measures
stage before this ~ourt"', that LaGrandsomehow affirmatively
precluded the useof clemencyto satisfi the Court's
requirementof review and reconsideration. Mexico citesthis
Court'sjudgrnent in LaGrandfor the proposition that "the
Arizona Pardons Board tookinto account the violation of [the
LaGrandbrothers'] consular ~i~hts"~'~I .t then concludesthat,
because this Court later ordered a remedy inLaGrand,"the
Court determined ... that clemency review alone did not
constitute the required 'reviewand reconsideration'; othenvise,
the Courtpresumably would not have foundthat the United
States violated its obligations to give 'full effect' to the rights of
the LaGrandbrothers containedin Article 36"257.This
argument first misrepresentsthe facts of the LaGrandcase and
then misstatesthe Court's holding.
252See MexicoMemorial,para. 253.
253CJ Heise, Mercyby the Numbers, supra note 243 at p. 309, Annex23,
Exhibit97 ("Does the dwindlingnumber of successfulclemencypetitions
reflect an ever-decreasingnumberof worthy clemencycandidatesor,rather,
evolvingperceptionsaboutthe appropriateuse ofclemency? Indeed,other
actorsin the deathpenaltyprocess-notably,prosecutors,jurors, andjudges
-might effectivelybe performingsome (butnot all) of the fùnctionsthat
clemencyis designedto performwhen theyconsideraggravatingand
mitigatingcircumstancessurroundingcapital cases.").
254See MexicoMemonal, para. 246.
255See Oral Argument, Avenu and Other Mexican Nationals, (Mexicov.
United StatesofAmerica), CR 200313(Babcock),p. 12.
256MexicoMemorial,para. 246(citing LaGrand, Judgment, paras.27,3 1).
257MexicoMemorial,para. 246.6.72 First, even ifthis Court was, as Mexico says, "hlly
awarethat the LaGrandbrothers had received a clemency
hearing,during which the Arizona Pardons Board took into
accountthe violation of their consular rights"258t ,he Court
couldnot have consideredthe sufficiency of the clemency
processas a means of review and reconsideration. It is true that
theclemency petitions of both brothers raised the Article 36
issue259.But the position of the United States inLaGrand was
that no remedy beyondan apology was required for a breach of
Article36(l)(b), and that any further remedies were strictly
politicalor diplomatic260.The question of clemency as a
remedywas not in issue. Moreover, at the time of the clemency
hearings,the facts relating to the alleged breach were not clearly
establishedas betweenthe United States and Germany. There
continuedto be greatconfusion about when the competent
authoritiesknew that the brothers were Germancitizens and not
UnitedStates ~itizens*~'.The United States Government had
notyet even detem~inedwhether a breach had occurred and, for
thatreason,had notitself requested the Board's consideration of
the
258
MexicoMemorial,para. 246.
'59Karl LaGrand'sclemencypetition was denied on 23 Feb. 1999. See
Letterfrom Edward Leyva,Chairman of Arizona Board ofExecutive
Clemency,to Jane Hull,Govemor of Arizona, 23 Feb. 1999,Annex 23,
Exhibit 100. The clerriencypetition of Walter LaGrandwas considered and
rejectedon Mar. 2, 1999.
SeeLaGrand,Judgment,para. 123.
SeeLaGrandReport, p. 10,Annex 23, Exhibit 79.
26'The UnitedStateswas not able to bring the Article 36 issue to the
attentionof the PardorisBoard in either case, since Germanyhad only
broughtthe possibility ofa breach to our attention on 22 Feb. 1999, Letter
fromJoschkaFischer, ForeignMinister of Federal Republicof Germany, to
Madeleine K. Albright, Secretaryof State of the UnitedStates of America,
22Feb. 1999,Annex 23,Exhibit 101,and the United Stateswas still
investigating thematterat the time of the hearingsthe following wSee.
LaGrandReport, Annex23, Exhibit 79.6.73 Moresignificantly,considerationofneitherpetition was
informedby a statementby either this Courtor any other as to
the legal consequences of abreach of Article36. Gerrnanyfiled
its request for provisionalmeasures with this Courton 3 March
1999. This Court's judgmenton the meritsinLaGrandwas not
issued until27 June 2001,more than twoyearslater. Thus the
best that canbe said fairly is that the Pardons Boardwas aware
of the Article36 issue, asone issue among others, buthad no
reason to think that the issue hadany legalconsequenceand
was not persuaded thatthe issue in itself warrantedclemency.
More significantly,consideration of neitherpetitionwas
informed by a statementby either this Courtor anyother as to
the legalconsequencesof a breach of Article36.
6.74 Thus,there is nobasis for Mexico'sclaimthat the Court
concluded there"that clemencyreview alonedid not constitute
the required'reviewand rec~nsideration'"'~~.This Courthad
not yet concluded that Article36(2) required amechanism for
review andreconsiderationwhen the LaGrands'clemency
hearings were held, andhad no reason to considerwhether
clemency could or could notprovide sucha mechanism. In
short, thereis absolutelynothing inLaGrandthat can fairly be
read to supportMexico's assertionthat clemencyinherently
fails to meetthe requirements for effective reviewand
reconsiderationof a failure ofconsular notification. The Court
would have hadno basis fordrawing sucha conclusion.
6.75 Finally, itcannotbe ignored that Mexico hasattempted
to discreditthe clemency processes ofthe fifS statesofthe
United States,as a whole, in a way that isbothreckless and
offensive. Just as it has impugned the integrityof our courts,
Mexico has attempted toportray the governors,thelegislators,
and other electedor appointedofficials of the statesthat have
created andoperatedthe clemency machinery ascareless and
263MexicoMernorialp,ara.246.uninformed, or simplymalevolent.
6.76 Mexico has attemptedto do so by stitching together
materials from newspapers,magazine articles, andother
unpersuasive sourcesthat focus their criticismsonthe
procedures or operationsof particular clemencyprocessesin
particular cases. Mexico'sargument proceedsfromanecdotal
evidence - that purportedshortcomings of particular clemency
processes in a small numberof isolatedcases establish an
overall faiiure of al1clemency processes. At most,the incidents
confirm the imperfectionof al1human undertakings. It is
always possible that a particulardecision-makerina particular
clemency process will fall short, in some regard,inhis or her
performance. But it cannot be assumed, as Mexico asserts, that
a particular member of a particular clemencyboardfalls short
because he fails to readclemency petitions"line for lineW2".If
that were the standardof cornpetence, many publicofficiais
would fail. But such an incident, in a particular case,does not
provide a record that wouldenablethis Court to assessthe
entire process, much lesscondemn it.
6.77 The clemency processesof the fi@ Statesare
established under their constitutions and by their lawsand
regulations. The state legislaturesthat createdtheseprocesses,
and the govemors and clemency boardsthat implement them,
are properly establishedinstitutionsunder the interna1lawsof
the United States. They, andthe processes they oversee, are
entitled to the presumptionthat they operate in goodfaith and
on a regular basis accordingto municipal law, unlessthe
262CompareMexicoMernorialp , ara.266,withFauldev.TexasBoardof
Pardonsand Paroles, et al., No. A 98 CA801,Transctf Evidentiary
Hearing,21-22Dec. 1998,pp.207-209,Annex23, Exhibit196. As the
boardmember explainedh,emightquicklyreadthroughdocumentsthat
wereduplicatesorthatcontained repetitive information.contraryhas been proved265.Ttwould be entirelyinappropriate
forthe Court to determine - on the basis of allegations from
questionablesourcesaboutproblems in a smallnumber of
clemencycases in a handful ofjurisdictions - that, as Mexico
asserts,"clemency procedures in most executingstates .. .
couldnot possibly provide meaningful reviewor reliable
rec~nsideration"~~~M . exico has not even attemptedto prove
sucha broad accusation,nor could it. It invitesthe Court to
reachconclusions aboutthe clemency processes injurisdictions
that ithas not evendiscussed in its Memorial.
6.78 The Court should not approve Mexico'sunsustainable
effortto tarnish the integrityand reputation ofthe officialsof
the fi@ states of the United States on the basis of bald
allegationsand thin evidence. Moreover, even in respect of
those particular cases Mexico has mentioned,the Court should
findthat these allegations are unsubstantiatedand that Mexico
has failed adequatelyto prove that the clemencyprocesses
operated in an inappropriatemanner. The critical point is that
clemency officials are not bound by principles of procedural
default,finality, or other limitations onjudicial review. They
may consider any facts and circumstancesthat they deem
appropriate and relevant,even if courts considered and rejected
suchfactsas a basis forrelief or if the person seeking clemency
failedto raise them in a timely fashion. The exercise of that
discretionis not presumptively flawed simplybecause a
- -
265 Thisis theprincipleoomnia rite acta praesummuntur. See Methanex
Corp. v.UnitedStates, First Partial Awa7Aug. 2002, NAFTAChapter
11Tribunalp, ara.45, Annex23, Exhibit102available at
http://www.state.gov/documents/organizationi36 see alsoBin
Cheng,General Principles of Law as Applied by International Courts and
Tribunalsp.305(1953).Annex23, Exhibit103;PatrickDaillier & Alain
Pellet,roit InternationalPublipp.431-32(2002),Annex23, Exhibit104;
AlwynFreeman, InternationalResponsibility of Statesfor Denial ofJustice,
74(1970),Annex23,Exhibit105.
'' MexicoMemorial,para.248 (emphasisadded).clemency officialmay fail to read cover pages, duplicate
documents, or the likewith unwaveringattention.
4. Article 36(2)Does Not CompelStatesParties to TreatArticle
36(1) as Creating.Rightsthatare FundamentaltoDueProcess
6.79 Next, we address Mexico'scomplaint that the"refusal
[ofthe United Statescourts] to recognize Article36rights as
fundamental to due process fora foreignnational ... prevents
the courts 'fromattaching any legal significance'"to Article
36(1) brea~hes*~'.Mexico devotes considerable effortto
arguing that consularnotification and assistance aredueprocess
rights, even humanrights268.Mexico doesthis in orderto
support its claim that Article36(2) requiresthe United States
courts to treat a breachof Article 36(1)asa fundamentaldue
process violation,which in Mexico'sviewwould necessitate the
impositionof certainheightened remediesunderboth
international lawand United Stateslaw269.This Courtelided
any considerationof these argumentswhenthey weremade by
Germany in ~a~rand~~~ T.his Court shouldnow rejectthem.
6.80 To take Mexico'shuman rights argument first,the
VCCR is not (and,as will be explained below,was never
intended to be) ahuman rights instrument. The VCRRis about
consular relations betweenStates, as clearly stated inits
preamble27'. Indeed,one looks in vain for the inclusionof
267Mexico Memorial,para.238; see generallyChapterV, paras.299-345.
268Mexico Memorial,paras.331-345.
269Mexico Memorial,paras.331-345,354.
270LaGrand,Judgment,paras. 78, 126.
271We note that thesecondpreambularparagaph referencesthePurposes
and Principlesof theCharterof the UnitedNations,but makesno mention
whatsoever ofhumanrights. No referencewasmadeto humanrightsin
discussions of thepreambleringthe negotiationsinthe UnitedNations
Conference on ConsularRelations. It is particularlygthatYugoslav
representative,Mr. Bartos, madeno referencetoanrightsin hisconsularnotification in any internationalor regional human
rights document, such as the European Convention on Human
~i~hts~~?a ,nd the United Stateswas unable to find the VCCR
included in any volume compilinghuman rights
The protections it provides are conferred on the basis of
reciprocity,nationality, and function, and they inure onlyto
interventionduringdiscussionsof the preamblein the First Committeeof the
U.N. Conferencein 1963. UnitedNations, Conferenceon Consular
Relations, Vol.,Summaryrecordsofplenary meetingsand themeetingsof
theFirst andSecondCommittees,documentAlCONF.25116,1963,p. 248,
Annex23, Exhibit7. As a memberof the IntemationalLaw Commissionin
1960,Bartoshadpreviously stated(ail members of the Commission are
expectedto speakin their persona1capacitiesas members of the
Commission)thatthe newly introducedArticle 30A addressingconsular
notification"Wasintended to safeguardhuman rightsand the protection of
those rights,particularlywhere theinterestsofjustice were at stake,should
prevail overpurelynational interests". 1960Yearbook of the International
Law Commission,Vol. 1,SummaryRecordsof the Twelfth Session,
documentAlCN.4lSER.AlI960(534th Meeting,6 May 1960),p. 46,para.
28, Annex 23,Exhibit 73. Hedid notreiterate his prior positionon behalfof
his govemmentatthe negotiations.
272European Conventionforthe Protectionof Human Rightsand
Fundamental Freedoms,4 Nov. 1950,213 U.N.T.S. 221,Annex 23, Exhibit
110. Seealso Charterof Fundamental Rightsof the EuropeanUnion,2000
O.J. C 364101,Annex 23, Exhibit 106;American Conventionon Human
Rights, 22Nov. 1969,O.A.S. TreatySeriesNo. 36, at 1, 1144U.N.T.S. 123,
Annex 23, Exhibit 107;AmericanDeclarationof the RightsandDutiesof
Man, O.A.S. Off.Rec. OEAISer.L.N.II.4, rev. (1965),O.A.S. Res.XXX,
Annex 23,Exhibit 108;African Charteron Humanand Peoples'Rights,27
June 1981,21 I.L.M. 58 (1982),Organizationof AfricanUnity,document
CABlLEGl6713rev.5, Annex 23,Exhibit 109.
273See, e.g., HumanRights: A Compilationof InternationalInstruments,1,
Universal Instruments,doc. ST/HR/I/Rev.6(2002),Annex 23, Exhibit 111.
Moreover,if the VCCR is properlycharacterizedas a human rights
instrument,sotoomust be any otherinternationalagreementgivingrightsto
an individual,uchas the Conventionfor the Unificationof Certain Rules
Relatingto InternationalCarriageby Air, 12Oct. 1929, 137L.N.T.S. 11,
commonlyreferredto as the "WarsawConvention", Annex23, Exhibit 112.nationalsof States They are not applicable erga
omnes. They are not enjoyed by al1humanbeings simply by
virtueof their human existence - the standarddefinition of a
human~ight~~'.For these reasons, it cannotbe said that
informinga detained person that he or shemay have a consular
officia1notified of his orher arrest is a "human right." Mexico
hasprovidedno evidenceto the contrary. Itsposition on this
distortsthe nature of the requirements of Article36(l)(b) and
trivializes theconcept of a human right.
6.8 1 Mexicohinges its argument, though,on the fallacy that
therequirementsof Article 36(l)(b) are fundamental to due
process,claiming that consular notification is "anessential
requirementfor fair criminal proceedings against foreign
national^" It'i^plies that this Court, in interpretingthe
VCCR,has a mandate to determine what a State's criminal
justice system must regardas "due process"rights or as
"fundamental" rights, thereby taking on therole for the United
Statesthatthe United States courts have longassumed in
makingthese determinations under the "due process" clauses of
the UnitedStates C:onstitution. Moreover,to lend credence to
its argument,which persistently overstatesthe purposes and the
importanceof Article 36(l)(b), Mexico denigratesthe United
Statescriminaljustice systems, making the reckless and
274
The VCCRwould not applyto stateless persons,nor to persons whose
275dingStatehas no consularrelationship with the receivingState.
SeeMarthaC. Nussbaum,"Capabilities, HumanRights, and the
UniversalDeclaration", ineFutureofInternationalHumanRights,p. 26
(B.H.Weston & S.P.Marks,eds., 1999),Annex 23,Exhibit113(citing
CommonSense,TheRightsofManand OtherEssentialWritings ofThomas
Painepp. 186-190(Sidney Hooked., 1994)(1792)); RubénHemandez &
GerardoTrejos,La Tutelade losDerechosHumanos,pp. 12-13 (1977),
Annex23, Exhibit 114.
276MexicoMemorial, para. 308;see also, e.g., id.at para. 317 ("When the
mandatesofArticle36(1) are violated, the due processrights of detained
foreignnationalsare necessarilyundermined and theprocedural protections
thatcharacterizeaair andjust criminal proceedinglosetheir meaning.").inaccurate assertionthat, in the United States,"foreignnationals
- and Mexican nationalsinparticular - arefrequentlysubject to
discriminatory treatrnent as a consequenceof their raceand
immigrant status ... in the courtrooms,jails, and lawyers
9,277
offices .. . . Mexico'snot-so-subtle implication,here and
throughout itsargument, is that United Statescourtsdo not (and
cannot be tmsted to) provide fair trials in any case inwhich the
defendant is a foreign national. This is aprofoundlyoffensive
argument. The United States Constitution guaranteesal1those
who stand accused a fairtrial,regardless ofnationa~it~~'~T . he
Constitution's substantive and procedural safeguards,and
especiallythe legalassistance providedto indigentsin the
United States, exceed every internationalstandardfor fairness
andjustice. Thus, it simplydoes not follow,as Mexicowould
have it, that a breachof Article36 leads ineluctablyto an unfair
trial in the United States.
277Mexico Memorial,para. 313;see also, e.g., id.atpara.320(claiming that
United Statesprocedural protections"areoften inadequatetoapprise foreign
nationals of their rights").
278ASUnitedStates SupremeCourtJustice HugoBlackobservedover sixty
years ago:
Underour constitutionalsystem, courtsstandagainstany
winds that blowas havensof refuge forthosewhomight
othenvise suffer becausethey are helpless,weak,
outnumbered,or becausethey are non-conformingvictims
ofprejudice and publicexcitement. Dueprocess of law,
preservedfor al1by ourConstitution,commands thatno
[prosecutiontainted by racial or otherbias] shallsendany
accusedto his death. No higher duty, nomoresolemn
responsibility,rests uponthis Court,anthat of
translatinginto livinglawand maintaining this
constitutionalshielddeliberatelyplannedandinscnbed for
the benefit of every humanbeing subject to our
Constitution- of whateverrace, creed orpersuasion.
Chambers v.Florida,309 U.S.227,241 (1940)(emphasisadded),
Annex 23, Exhibit 115.6.82 Leaving asideMexico's highly inappropriaterequest
thatthe Court condemnthe entire criminaljustice systemof the
United States, orthat it redefine the concept of"dueprocess" in
the criminal justice systemof the United States,it is not the case
thatthe requirements of Article 36(l)(b) are fundamentalto the
fairnessof a criminaltrial, whether asaspects ofdueprocess or
othenvise. As ProfessorWeigend explains,Article36(1)
establishes proceduralrights, not substantiverights,and the
procedural rights it establishes areat best tangentialtothe
criminal process. They do not necessarily attachto the criminal
process at all: if a fbreignnational is charged andtriedwithout
being arrested or othenvise detained, there isno obligationto
informhim of thepossibility of consular notification.
Accordingly, nationalcriminaljustice systemsdo notaccord the
obligations of providingconsular information andnotification
the status Mexico claimsthey have279.Thus it iswrong to
suggest that the "lawsand regulations"of the UnitedStates
must give Article 36(l)(b) the statusof a constitutional
protection in orderto comply with the proviso ofArticle36(2).
Asking an individual,"would you likeus to notifi your
consular officer?", as Article36 provides, is totallyunlike
asking a suspect whetherhe would likea lawyer,which is the
suspect's (and the accused's) fundamental right.Inthat case, if
the answer is "yes", inthe United Statesquestioningmustcease
untilthe defendant hashad the opportunityto consultwith a
lawyer, and a lawyermust be providedat state expenseif the
suspect does not havethe financialmeans to hire one. But a
"yes" to consular informationtriggersnothing beyondthe
obligation to notifi.
6.83 Mexico consistently confusesthe requirements of
consular information and notification,which areal1that Article
36(l)(b) protects, withthe right of the sendingStateto provide
consular assistanceunder Article 36(l)(c). And itpersistently
279See WeigendDeclarationp, ara.9, Annex3.ignoresthe fact that consular assistance, by the VCCR's own
terms,is discretionary (both as to the Stateand its national).
Consularofficers have no international legalduty to respond to
the requestof the defendant, and the abilityof al1governments
to provide assistance to their nationals abroadis limited by
resourceconstraints, if nothing el~e~~'.Further,to rely on
consularassistance as essential to ensure due process for foreign
nationals incriminal proceedings is contrary to,and would
undermine,the clearobligationof al1Statesto provide due
process. Fair trial and due process rights guaranteesdo not,
cannot,and should not depend on the consularinterventionof
otherStates in order to be redeemed. Thus, it cannotbe
accepted, asMexico would have it, that a foreign national under
no circumstances can receive a fair trial inthe absence of
consularassistance.
6.84 With the exceptionof an advisory opinion of the Inter-
AmericanCourt of HumanRights in an advisoryproceeding
initiatedby ~exico~~' - a decision which has attracted no
The implicationof Mexico'sargument mustbethat Stateshave an
internationalobligationto provideconsularassistanceand that the failureof
a Stateto soprovide constitutesa breach of that internationalobligation. If
that weretrue, most Stateswouldbe in breach.
281 SeeI/ACourt H.R., TheRighttoInformationon ConsularAssistance in
theFrameworkof the Guaranteesof theDueProcessofLaw. Advisory
Opinion OC-16/99of Oct. 1,1999.SeriesA No. 16,paras. 122, 124,Annex
23,Exhibit116. The Inter-American Commissionon Human Rightshas
followedthis opinion. See Inter-AmericanCommissionon Human Rights,
RamonMartinez Villarealv. UnitedStates,Merits,CaseNo. 11.753,Report
No.52/02, 10Oct. 2002,availableat
http://www.cidh.org/annualrep/2002eng/USA. 1753.htn-,nnex 23,Exhibit
93. TheOC-16decisionaddressesissuesoutsidethejurisdiction of the
Inter-AmericanCourt,whichplainly is not theappropriate bodyto interpret
theVCCR. See ShabtaiRosenne, "ThePerplexitiesof Modem International
Law:GeneralCourse on PublicInternationalLaw"in RecueilDes Cours,
Vol. 291,pp. 128-129,Annex23, Exhibit 117(stating thatthis advisory
opinionby the Inter-AmericanCourtof HumanRightsis "open to criticism,
andmay possiblynot give adequaterecognitionto thestatus of the 1CJas thesupportfiom anyother national or international -
consularnotificationhas never beenunderstood by the
international communityto be an essential element ofdue
processand fairtrialprotections.
6.85 Mexico'sefforts to provethe contrary are, on close
examination,utterly uns~~~orted~~f ~o,rcing it to attempt to
principaljudicialorganof the UnitedNations". Furthemore, "[a] regional
court or tribunalof limiitedjurisdiction, bothrationepersonae and ratione
materiae,shouldshowthe greatest restraintbefore embarkinguponthe
hazardousand delicatctask of interpretingthe application of a universal
instrumentadopted underthe auspices of the United Nations,and which
itselfprovidesforthejurisdiction of the ICJ"). The principledopposition of
the UnitedStatestodemands for remediesfor Article 36 breaches such as
Mexico made to the Inter-AmericanCourt,and now makes here,prompted
the UnitedStatesto takethe exceptionalstep of appearing beforethat court
in OC-16,notwithstandingthisjurisdictional limitation and the fact that the
UnitedStatesis not a party to that court'sstatute. The United Stateshas
clearlyand consistentlyexpressed itsdisagreement with that court's
decision, whichis infectedwith the sameerrors of reasoningthat Mexico
makesin this case.
'" Thedecisionis, in fact, flatly contraryto the views of a numberof
nationalcourts,as willbe explained below. See also LuisaVierucci, "La
tuteladi diritti individualiin base alla Convenzionedi Vienna sullerelazioni
consolari:in margineal cas0LaGran8 ("The Protection of Individual
Rightsunderthe VienriaConventionon Consular Relations,with Reference
to theaGrandCase"),in Rivista di Diritto Internazionale,Vol. 84, 2001, p.
707, Annex23, Exhibit 118 (" ...i dirittienunciati all'art. 36costituiscono
dei dirittill'individuo-stranierom,entre nonsono configurabiliquail diritti
dell'uomo") (" ...therights set forth in Article 36 are rightsof the alien
individual,but cannotbe interpreted ashuman rights".).
283Itfalls upon Mexico,since it is arguingthe existence of "international
recognition of consularnotification as an element of fundamentaldue
processanda humanright", Mexico Memorial,para. 345, to "provethat this
custom isestablishedin such a manner that ithas become bindingon" the
UnitedStates. SeeAqvlum,Judgment,I.C.J.Reports 1950, p. 276, in which
the Court heldthatColombiacould not invoke"American internationallaw
ingeneral"or regionalcustomary law,without establishing"a constant and
uniformusage practicedby the Statesin question". This Mexicohas not
doneandcannotdo.constmct support for its argument fromwhole cloth. Mexico
takes as its warpa numberof international texts, some
conventions and somemerely political or hortatory statements,
that in al1cases failto establishconsular notification asa
fundamental due processright284.Tttakes as itswoof an
amalgam - a few scholarlyarticles, some randomcommentsof
persons speaking in theirindividual capacitiesat international
gatherings, amici briefsthat members of Mexico's currentlegal
team filed in OC-16,aswell as the public positionsof a handful
of States. With thesethin threads Mexico attemptsto weavethe
argument that customaryinternational law "confirms"that
consular notification hasbeen generally recognizedas
fundamental to due process. But it has not been.
6.86 Mexico has notmade even the beginningsof a credible
showing that Statepracticereflects any recognition,much less
significantrecognition,of consular notificationandassistance
as essential elements ofdue process. In fact,Mexicohas
pointed to no Statethat considersArticle 36(l)(b) as
fundamental to due processand to no Statethatprovidesthe
remedies Mexico seeks. Moreover, it is not eventhe general
practice of States to provide such remedies on anautomatic
basis with respect to rightsthat are more central totheir
284 Mexico overstates the significanceof the fact that a numberof
conventionson internationalcrimes, includingthe 1984UnitedStates
Convention against Torture andOther Cruel, InhumanorDegrading
Treatment or Punishmentandthe InternationalConventiononthe Protection
of the Rights ofl MigrantWorkers and Membersof TheirFamilies,
expresslynote the rights providedfor by Article 36 ofthe VCCR. See
Mexican Mernorial, paras.333-334and n.397. Theseconventionssimply
reiterate the Article 36requirementswith a view toward enhancing
awareness and respect forem. The mere inclusionof suchprovisionsdoes
not, as Mexico would have it, "confirm thatthe right to consular notification
underArticle 36(1) is an essentialelement of due process." None of the
conventions supports thatconclusion.criminaljustice stems^^^.
6.87 This is certainly true of theUnited States. As the Court
is aware,United States courtsdonot require automatic
exclusionof statements fromuse inevidence for a breachof
Article 36(1)(b)286.Nor do UnitedStates courts requirethe
vacatur of a conviction or sentencein those circumstances.
This isbecauseUnited States courtsfollow thegeneral rulethat
suchremediesare rarely granted, andthen only for
constitutionalviolations or whenexplicitlymandatedby statute.
285 SeeWeigendDeclaration. paras. 5(b), 17-19,24-29, Annex 3. The
UnitedStates does not concede thatexclusionand vacaturwould be the
appropriateremedies for a breach of Article6(I)(b) rights as Mexico
advocatcseven ifthey were found tobe fundamentaltodue process. The
UnitedStatesalso does not concedethatthe contentof therights describedat
paragraphs305-330 of Mexico's Memorialare correctlydescribed. We
discuss these issues in detail infraat ChapterVIII.A.4.
286
As Mexicopoints out, "[tlhe generalrule in federaland state courtsis
that neither thedismissal of the indictment northe suppressionof
incriminatingstatements obtained froma foreign nationalare available
remedies [forviolations of Article 36f]the Convention". Mexico
Memorial, para. 133. Mexico is correct. See. e.g., the federal cases citedin
Mexico's Memorial, para. 133n.137. There appearsto beonly one lower
court case in the United States that suppresseda statementas a remedy fora
violation ofArticle 36,tate v. Reyes,740A.2d 7 (SuperiorCourt of
Delaware 1999),and it is inapposite,Annex23, Exhibit 119. The court
foundprejudice;it did not create an exclusionaryrule. Id. at p. 14. In
addition,it reliedavily on a decisionof the United StatesCourt of Appeals
for the NinthCircuit,d. at pp. 12-13,thatwas later overruledby the Ninth
Circuit in an enbanc decision. See UnitedStatesv.Lombera-Camorlinga,
206 F.3d 882 (9thCir..2000) (enbanc),overruling170F.3d 1241(9th Cir.
1999),Annex23, Exhibit 120. In Valdezv. State,the Oklahoma Courtof
Criminal Appealsremanded a case forresentencinguponfinding a
reasonableprobability that thejury might nothave imposedthe death
penaltyhad defendant had the benefit ofadequatelegalrepresentation,which
should haveresulted in a backgroundinvestigationthat foundthe evidence
bearingon his mental status at the time ofthe crime thatwaster foundby
consularofficers. 46 P.3d 703, 710-711(Okla. Crim. App. 2002), Annex 23,
Exhibit58.Theydonot considerArticle 36(l)(b) as fundamentalto due
process287.Consistent with thispractice, theUnitedStates does
not insist uponsuchremedies forUnited Statescitizensabroad
for the merefailureto followtheprocedures setforthin Article
36.
6.88 Thisresult is also tme, however, of Mexico. The United
Statesisaware of noinstancein which Mexican courtshave
vacateda criminalverdict to remedy a breach ofArticle
36(l)(b), and Mexico has referredthe Court to no suchcase.
Indeed,in 1976,the United States and Mexico enteredinto a
prisoner transferagreementwiththe conscious understanding
that UnitedStatesprisoners in Mexico, with respectto whom
Article36(l)(b) had not been honored and whoweretransferred
to theUnitedStates,would havetheir Mexicansentence
enforcedby the United States,regardless of thebrea~h~~~.
287 SeeWeigendDeclaration,para. 9,Annex 3. Evenif the United States
did considerArticle 36as fundamentalto due process, itwouldnot follow
that the remediesMexicoseeks wouldapply, eitherunderinternationallaw
or UnitedStateslaw.
288SeeTreatyon the Execution of Penal Sentences, supra note67, Annex
23,Exhibit72. Mexicohas made highlyselective references totestimony by
the Departmentof Statebefore Congressin relation to this treatythat do not
accurately conveythe context and relevance ofse hearingstothe case
beforetheCourt today. The treatywasfirst proposed ina letterfrom
Foreign MinisterAlfonsoGarcia Roblesto Secretary of State HenryA.
Kissingerin responseto aetter from the Secretary regardingconditions for
Americansin Mexican prisons. Letterfrom Henry A.Kissinger,Secretary
of State of the UnitedStates of America,to Alfonso Garcia Robles,Foreign
Minister of Mexico,6Feb. 1976;Letter from AlfonsoGarciaRobles,
Foreign Ministerof Mexico, to Henry A.Kissinger, SecretaryofState of the
UnitedStates ofAmerica, 25 Mar. 1976,Annex 23,Exhibit 121. There had
been accusationsoftorture and physicalabuse, of forcedconfessionsmade
in Spanishwithout theassistance of an interpreter, ofof access to
legalcounsel,oflengthypre-trial detention, of the absence ofinterpreters
duringcourtproceedings,of lack ofaccess to informationhelpfulto the
defense,andof widespreadextortion andbeatings of UnitedStatescitizens
while inprisonin Mexico.See 123Cong. Rec. 19855(1977)(testimony ofMexico insistedonthis understanding. If Mexico in the
interveningyears hadtmly believed that Article36(l)(b)
created fundamental rights,onemight expectthat Mexico
would have establisheda domestic program enforcing its VCCR
obligations by requiringthe stringent application of the
remedies it advocatesin this case. Instead, it appears that, even
as of today, Mexicohas not implementedsuch a program.
Rep.Fortney H.Stark,Jr.), Annex23, Exhibit 122; 123Cong. Rec.35017
(1977)(statementof Rep.Joshua Eilberg,Annex23,Exhibit 123. Seealso
U.S.Citizens lmprisonedin Mexico:HearingBcfore theSubcomm.on Int'l
Politicaland MilitaryAffairsoftheHouseComm.on Int'lRelations,PartII,
94thCong. pp. 38-41(1976)(statementof Rep. BenjaminA. Gilman),
Annex23, Exhibit124. Inaddition,there were significantproblems
rcgarding consularaccessandnotification. In fact,CongressmanGilman
specificallytestified that "manyprisoners complained thatthe American
Embassy wasnotnotifiedandwas notallowedaccessto [United States
citizensin prisoninMexico] formanyweeks subsequentto their arrest." Id.
at p.40. CongressmanGilman wentonto notethatoutof the thirty-five
cases,which hadarisenduringthe"period from October1975to December
1975,only on 2occasionswasthe Embassynotifiedby the Mexican
Govemmentofthe arrestof a [UnitedStatescitizen]". Id. ln his letter
proposing thenegotiation, MinisterRoblesnoted: "Withrespect to aliens,
agentsof the Officeof theAttomeyGeneral have categorical instructionsto
informthe consulconcemed ofanyarrest as soon asit is made. We cannot,
however,expectthatirregularities willnot occasionallybe committed,
especially whenarrestsoccurinremoteparts of thecountry. In suchcases
the competentauthoritïes will takeal1necessary measuresto correctthe
irregularities". Letterfrom AlfonsoGarcia Robles,Foreign Ministerof
Mexico,to Henry A. Kissinger,Secretaryof Stateof the United Statesof
America,25 Mar. 1976,Annex23, Exhibit 121. TheArticle 36 breaches
werenot, however, understoodtobe a basis for notenforcing the Mexican
sentences.See U.S.C.itizenslmprisonedin Mexico:Hearing Beforethe
Subcomm. onInt'lPolitical and MilitaryAffairs oftheHouse Comm.on
Int'lRelations,Part1,94th Cong., 16(1976) (statementof Hon. Leonard
Walentynowicz,UnitedStates Departmentof State),Annex 23, Exhibit125
("it mustbe keptinmind that... anytime a foreignerenters another
country, hebecomes subjecttothatcountry'slaws andprocedures. Thus,if
an Amencan enters Mexico andcommitsa crimethere,he is subject to arrest
by Mexicanauthorities,to trial beforeMexican courts and,if convicted,to
imprisonmentina Mexicanprison.").6.89 Article 128,Section IV of Mexico's Federal Codeof
CriminalProcedure requires thatthe detentionof a foreign
national be communicated immediately to the sending State's
diplomaticor consular mission289.Mexican law, however,
providesnojudicial remedy forthe failureby Mexican
authoritiesto comply with Article 128.IV,or othenvise to
provide notice to detained foreign nationals of VCCR
requirements290.Mexican law does not requirethe exclusionof
evidence,the vacatur of convictionor the remittal of sentence
for failureto provide notification under Article 128.IVorthe
VCCR~~'.In addition, there is no evidence that Mexicancourts
are willing to provide such remedies. To the contrary, the
Declarationof Alexander Richards,the United States consular
agent in Acapulco, Mexico,set forth in Annex6 notes the
experiencesof Mexican attorneys representing American
nationalsdetained in ~exico~~~.Not one ofthe attorneys
surveyedconsidered the requestof a Mexican court forthe
exclusion ofevidence or vacatur of convictionor remittalof
sentencein these circumstances tobe a cognizable
Moreover,the Declarations of Dr. Jesus Zamora Pierce,set
289 "Si se tratare de un extranjero, la detencion se comunicarade inmediatoa
la representaciondiplomatiOaconsularque corresponds". ("In the caseof
an alien, the fact that he has been placed in custody reported
immediatelyto the appropriate diplomaticor consularmission"). Leyes
Codigosde Mexico, CodigoFederal de ProcedimientosPenales, art. 128.IV
(1995),Annex23, Exhibit 69. WhileArticle 128.IVis a provision
applicableonlyto federal authorities,morean half of the MexicanStates
also haveprovisions imposinga similarobligationon state authoriSees.
RichardsDeclaration, para. 5, Annex6.
290See Zamora Pierce Declaration,para. 27, Anne.
291See Zamora Pierce Declaration,para. 25, Annex 5;Richards Declaration,
para. 13,Annex6.
92 SeeRichardsDeclaration, paras. 7-11,Annex 6.
293Id. at para. 8. This understandingis further confirmed bythe factthat
one of the attorneys surveyedendeavoredtoaise the claim only tohave it
expresslyrejected by a Mexican court. Id. at para. 10.forth in Annex 5,the current President ofthe Mexican Academy
of Criminal Sciencesand former Presidentof the MexicanBar
Association, and of Mr. Richards, note that neither was ableto
identifi a singlecase in which a Mexicancourt applied the sort
of automatic remediesthat Mexico asksthis Court to apply
against the United states2". Thus, Mexico'sown legalsystem
has not been ableto meet the legal standardit seeks to have
imposed on the United States, and Mexicoin its own practice
does not treat Article 36(1) rights as fundamentalto due
process.
6.90 When we look beyond the practiceof the United States
and Mexico, we seethat the few reportednational court
decisions that deal with alleged failuresto advise a foreign
national of consular information are squarelyat odds with
Mexico's position295.In no case has a courtdescribedor treated
Article 36(l)(b) as fundamental to dueprocess.
6.9 1 Particularlyinstructive is the firstdecision we are aware
of in Germany sincethis Court issued itsdecision inLaGrand.
In November 2001,the German Federal Supreme Court rejected
the view that Article36(l)(b) of the VCCRcreated fundamental
due process rights296.In that case, a foreignnational defendant
raised on appealthe fact that he had notbeen given consular
information when the police interrogatedhim (presumably
claiming that a confessionhe had made to the police was
therefore not admissibleas evidence). The German court
rejected the appeal,holding that the purposeof Article 36(l)(b)
was limited to preventingnationals of the sending State from
disappearing fromthe public view withouta trace; its rationale
-- -
294
See ZamoraPierceDeclaration,para.25, Annex5;RichardsDeclaration,
ara.13, Annex6.
P9'Thecasesdiscussedarethosethe UnitedStateshaslocatedtodate.
Theremay beotherdecisions onpointthatwe havenotfound.
'96See BGH5 StR11610decidedon 7Nov. 2001, uvailuble ut
http://www.bundesgerichtshof.deA,nnex23,Exhibit126.was not to protect a suspectfkommaking uncounseled or
incriminatingstatements.
6.92 Similarly,inthe October 2001 Canadiancase of R. v.
~artak2~~t,wo policemenpicked up Mr.Partak, aUnited States
citizenwho was charged withmurder, basedupon a mug shot
form. He volunteered aconfession that he reiterated after being
apprisedof his right tocounsel. He madefurther inculpatory
statementsto the investigatingofficers who interrogatedhim.
Whenhe latertriedto blockuse of his statementsat his trial
basedon the ground that he hadnot beengiven Article 36(l)(b)
consularinformation, thecourt found that Mr.Partak's
confessionwas voluntary,despite the "oversight" in failingto
give Mr. Partak consularinf~rrnation*~'.The court also
declinedto use its commonlaw power to excludethe
confessions,despitethe claimthat their admissionwould
adversely affect thefairnessof the defendant'strial. The court
thus concluded thatMr.Partak "failedto adduceany evidence
that would support afindingthat the failure of thepolice to
advisehim of his rights tohave a consulatenotified prejudiced
him in any way"299.
6.93 Inthe pre-LaGrand Canadian caseof Canada v. Van
Bergen,the Courtof Appealof Alberta rejectedthe petitionof
Mr. Van Bergen,who had fled to Canada,that he not be
extraditedto the UnitedStatesbecause Article36(l)(b) was
breached bythe United Stateswhen he wasarrested in the State
297[2001] 160C.C.C.(3d) 553, Annex 23,Exhibit 127.
298R.V.Partak, [2001] 160C.C.C.(3d) 553, 570,Annex 23,Exhibit 127.
The courtalso rejected Mr. Partak'sargument that the lack of consular
notification constituted a violationor quasi-violation of sectionhe
CanadianCharter ofRightsandFreedoms ("the Charter"),which provides
that "Everyone hasthe righton arrest or dete...o(b) to retain and
instnict counsel without delayand to be informeciof that right". Id. at pp.
567-569.
299R. W.Partak,[2001] 160C.C.C.(3d) at p. 570.Annex23, Exhibit 127.of lorid da^ I^^r.viewingthe Ministerof Justice'sdecision to
surrenderMr. Van Bergen,the Courtof Appeal agreedwith the
Minister'sconclusionthat "Mr. Van Bergen would need to
establish seriousprejudiceto him inthe process inthe foreign
state". The Minister andthe Courtnoted that Mr. Van Bergen
was representedby counselwhen he pled guilty to the Florida
charges and was extensively questionedby the Floridajudge
who accepted his plea, andthus no serious prejudiceresulted
fromthe breach.
6.94 A 1981Australiancase,R. v.~bbrederis~",also
rejected the implication that Article36(l)(b) was fundamental
to due process. In thatcase, anAustrian national appealed his
conviction forpossessionof heroin. Heargued that statements
he had made to customsofficersbeforehe was accordedaccess
to his consular officershould have beenexcluded from
evidence. The Court of CriminalAppeal of New South Wales
flatly disagreed, concludingthat:
Even giving the fullestweightto the
prescriptions in Art 36,1 do not see how itcan be
contended that they in any wayaffect the
carrying out of an investigationby interrogation
of a foreignpersoncomingto this country. The
article is dealingwith freedomof communication
between consulsand their nationals. It says
nothing touching upon theordinary process of an
investigationby way of interrogation302.
'O0Canada v.VanBergen,261A.R.387,390 (2000), Annex23, Exhibit
128
30'R.v.Abbrederis, (1981)36 A.L.R.109, Annex23, Exhibit129.
30'Id.atpp.122-123.6.95 Finally, inRe yater303,the ItalianCourt of Cassation
declined to nuIli@the criminal convictionsof a citizenof the
United Kingdomon the grounds that theBritish Consul had not
been notified either of his arrest or of theproceedings instituted
against him so Article 36, including the sending State'sright to
provide forthe detainee's representation,could not be
exercised304.
6.96 In short,there is not a single State - not even Mexico -
whose practicecan be pointed to in supportof Mexico's
argument that Article 36(l)(b) embodies fundamentaldue
process rights and that, as a consequence,Article 36(2)requires
the extraordinaryremedies it seeks forbreachesof Article
36(1)(b1305.
6.97 Therealso is nothing in the travauxthat supports
Mexico's assertion that a breach of Article36(1) constitutesa
violation of due process necessitatingexclusion and vacatur
under Article36(2). Not a single delegatemade a single
statement that even hinted at the meaningMexico advances, nor
its proposed remedy. Mexico's assertionsto the contrary in
paragraphs 339 through 343 of the Mernorialare inaccurate and
303LLJ~di~iDalecisions", in1976ltalian Yearbookof InternationalLaw, Vol.
II, pp.36-39(summarizing and quoting re Yater,which was decided by
Italy's Court ofCassation on 19Feb.1973),Annex23, Exhibit 130.
304Id. atp.337.
305In two casesin the United Kingdom, R. v.VanAxe1and Wezer,
SnaresbrookCrown Court, HHJ Sich (31May 1991 ),reported in Legal
Action 12,Sept. 1991,Annex 23, Exhibit 131,andR. v.Bassiland
Mouffareg,ActonCrown Court, HHJ Sich (28July 1990),reportedin Legal
Action 23, Dec. 1990,Annex 23,Exhibit 132,thecourts barred the use at
trial of statementsmade by foreign nationals to policein circumstancesthat
included a failureto make consular notification. Neither case,however,
supports Mexico'sadvocacy of an automatic nile of suppressionif consular
notification isnot made. See Weigend Declaration,para. 19,n.25,Annex 3.misleading306.Infact, severaldelegatesexpressedtheir concern
306 Mexico referencesstatementsmadeat the InternationalLaw Commission
by members speakingin their persona1capacity. Theseare not an accurate
reflectionof thenegotiatingrecord ofthe VCCR. Moreover,other members
expressed contraryviews. Forexample,Sir GeraldFitzmaurice(the drafter
of the first draft articleaddressingconsularnotification)stated: "To regard
thequestionas oneinvolvingprimarily human rightsor the status of aliens
would beto confusethereal issue. ... [Tlhe objectof hisproposal wasto
ensurethat an alienhadrightsequal witha national'sinthe circumstances
coveredby the text". 1960Yearbookof the InternationalLaw Commission,
Vol. 1,SummaryRecordsof theTwelfthSession,document
AlCN.4ISER.Al1960(535thMeeting,9 May 1960),p.49, para. 8, Annex
23, Exhibit 133. Mr.Erim agreed:"the proposednewarticle 30A dealtwith
the rights and duties ofconsulsandnotwith the protectionofhuman rights
or the status of alie... [Tlhediscussion should .. .not be broadenedto
cover other subjectswhich wereinvolvedonly incidentallyin the proposed
provision". Id. at p.49,para. 14.
Mexicoalsosignificantlydistortsthe interventionsit cites fromthe
DiplomaticConferenceinparagraph 342of its Memorial. The Korean
interventionMexicocites was madein response to a proposa1by Thailandto
deleteparagraph I(b) in its entirety. Thailand:amendmentto article 36,
documentAlCONF.25lC.21L1 .01,in United Nations,Conferenceon
ConsularRelations,Vol.II, Annexes:Proposals andamendments submitted
intheSecondCommittee,documentAlCONF.25ll61Add.1, 1963,p. 84,
Annex 23, Exhibit 134. In the rest ofthe intervention(omittedby Mexico),
Koreasupporteda UnitedStates amendment, UnitedStatesof America:
amendmentsto article36, documentAlCONF.25lC.2lL.3,in United Nations,
ConferenceonConsularRelations, Vol.II,Annexes:Proposals and
amendmentssubmittedintheSecondCommittee, document
AlCONF.25ll61Add.1,1963,p.73,Annex 23,Exhibit 135,but soughtto
have "withoutunduedelay" replacedby the Germanproposal,Federal
Republicof Germany:amendmentsto article 36, document
A/CONF.25/C.2/L.74,in UnitedNations,Conferenceon Consular
Relations, Vol.I,Annexes:Proposalsandamendmentssubmittedinthe
SecondCommittee, documentA/CONF.25/161Add1 ., 1963,p. 81,Annex 23,
Exhibit92, to requirenotificationwithinone month"whichconformedwith
practice in his country". United Nations,nferenceon ConsularRelations,
Vol.I, Summaryrecordsofplenary meetingsandthemeetings oftheFirst
andSecond Committees, documentAlCONF.25116,1963,p. 338, para. 11,
Annex23, Exhibit7.regardingthe relationship betweenState criminallaws andthe
proviso.The delegates fi-omtheUnion of Soviet Socialist
Republicsand other Warsaw Pact States - without whose final
supportthe VCCR could not have been concluded - strongly
The Greek interventionMexicocites, UnitedNations, Conference
on ConsularRelations, Vol.I, Summaryrecordsofplenary meetingsandthe
meetingsof the First andSecondCommittees, documentNCONF.25116,
1963,p. 339,paras. 13-14, Annex 23,Exhibit7, was madein connection
with itsproposal,Greece: amendmenttoarticle 36, document
NCONF.25/C.2/L.125,in United Nations,Conferenceon Consular
Relations, Vol.II. Annexes:Proposals andamendmentssubmittedinthe
SecondCommittee,documentA/CONF.25/161Add1 .,1963,p. 87, Annex23,
Exhibit 136,to require arrestingofficialsto "state thereason why [thealien]
is beingdeprived of his liberty". Thisproposa1was rejected. Mexicomits
that Greecewas also preparedto acceptthe German proposa1if it was
modifiedto require notificationwithinten days. UnitedNations,Conference
on ConsularRelations, Vol. 1,Summaryrecords ofplenary meetingsandthe
meetingsoftheFirst and Second Committees,documentAlCONF.25116,
1963,p.339,para. 15,Annex 23,Exhibit7.
The Spanish interventionMexicocites wasmadein responsetoa
Venezuelan proposa1to amendparagraphl(a) of Article36in an attemptto
clarifythe article and improve itsn. Venezuela:amendmentto article36,
document A/CONF.25/C.2/L.100,in UnitedNations, Conferenceon
ConsularRelations, Vol.II, Annexes: Proposalsandamendmentssubmitted
in theSecondCommittee, documentA/CONF.25/16/Add.1, 1963,p. 84,
Annex23,Exhibit 134. The fulltext ofthe SpanishInterventionis as
follows:"The right of the nationalsof a sending Stateto communicatewith
andhaveaccess to the consulateandconsular officialsof their own country,
establishedby the InternationalLaw Commission'sdrajï,was oneof the
mostsacred rights of foreignresidentsin a country." United Nations,
ConferenceonConsularRelations, Vol.I, Summary recordsofplenary
meetingsand the meetings of theFirstandSecond Committees,document
NCONF.25/16, 1963,p. 332, para.36(emphasisadded), Annex23,Exhibit
7. The InternationalLaw Commissiondraft Spainwasrefemng to, used the
phrase'ivithoutundue delay". Dra) articleson consularrelationsadopted
by theInternational Law Commissionat its thirteenthsession,cument
AlCONF.2516,art. 36, in UnitedNations,Conferenceon Consular
Relations, Vol.II, Annexes,ocumentAICONF.25116/Add1 ., 1963,p. 24,
Annex23. Exhibit 90.preferred the clearlyless intrusive ILCversion of the proviso307
over the alternativeultimately adopted308.The Soviet
delegation stressedthat the matters dealtwith in Article 36were
connected with thecriminal law andprocedureofthe receiving
State,which wereoutside the scopeofa convention that dealt
with the codificationof consular law. Thedelegates from
Byelorussia and Romania spoke in similarterms: they were
emphatic that the Conference was draftinga consular
convention, not an international penalcode, and it hadno right
to attempt to dictatethe penal codes of sovereign States. If
Article 36(2) is properly understood to meanwhat Mexiconow
argues it means, then it would not havebeen acceptable to these
delegates.
6.98 While thesestatements were madein support of the ILC
proposal that was not adopted, they nevertheless reflecta
publicly stated understandingof the negotiatorswith respectto
the implications ofthe provisions theywereaddressing. They
are the most directreferences made duringthe negotiating
- -
307 Paragraph 2 of Article36 as adopted bythe International Law
Commission reads as follows: "The rightsreferredto in paragraph 1of this
articleshall be exercisedin conformity with the lawsand regulations of the
receiving State, subjectto the proviso, however,that thesaid iawsand
regulations mustnotnullifj these rights." Report of the InternationalLaw
Commission to the GeneralAssembly Coveringthe work of its thirteenth
session, document Al4843in 1961 Yearbookof theInternational Law
Commission, Vol. II,Documents of the thirteenthsession including the
report of the Commissionto the General Assembly,document
A/CNAISER.Ail961/Add. 1,p. 112,Annex 23,Exhibit91.
308 See, e.g.,United Nations, Conference on ConsularRelations, Vol. I,
Summary records ofplenay meetings and themeetingsof the First and
Second Committees, document AiCONF.25/16, 1963,p. 40, para. 3, Annex
23,Exhibit 7 (statementof delegate of U.S.S.R.); id.at p.40, para. 8
(statement of delegateof Byelorussia). See also id.at p. 38, paras. 25-28
(statement of the delegateof Romania, whoalso preferred the less intrusive
draft and stated that"[tlhe aim of the conventionwas notto codiS, criminal
law or criminal procedure, but internationallawas it affected consular
relations".Id. at p38, para. 26.).sessionto the criminaljustice systems of receivingStates.
Thus, it is significantthatneitherthese statements,nor any
others,elicited anyresponsivestatement expressingthe
expectationthatcriminalproceedingswouldbe held in
abeyancefor consularnotificationto be completed,or that the
resultsof a criminaljustice process wouldbe subject to
challengeif consularinformation inadvertentlywas not given.
The negotiatinghistorydoesnot support Mexico'snovel
readingof Article36(1)or 36(2).
6.99 There islikewisenothing in the travaux to suggest
general,or evenappreciable,support forthe adoption of an
automaticexclusionaryruleof evidence in relationto Article
36. Even in theUnitedStates,theuse of an exclusionary ruleto
discourageunlawful policepractices - not principally, it should
be recalled, to avoidinjusticein a particularcase - did not gain
widespread acceptanceuntilnear the endofthe lengthy
negotiationsof the VCCR~'~.There is certainlynothing in the
travaux to indicatea suddenor enthusiasticrush by other
delegationsto embracewhatwould certainlyhavebeen seenat
the time as, at best,a novel legaldoctrine.
6.100 In short,thereisno validity to Mexico'sargumentthat
Article36(1) establishesfundamentaldue processrights or
human rights. Thisargumenttherefore cannotsupport
Mexico'slarger argument,that Article 36(2)requiresthe United
Statesto treat anybreach ofArticle 36(1) asa fundamental
rights violation, requiringa remedy of vacatur and exclusionof
evidence.
MirandaavArizona,384U.S.436,478-479 (1966),Annex23, Exhibit15. 5.Mexico'sInvocationoftheDoctrineofEffectivenessDoes
Not Support itsProposedReadingof theProviso
6.101 Mexico arguesthat:"[tlhe provision of a wholly
discretionary processthatmayor may not review or reconsider
the violation of Article 36 and its effects is patently insufficient
to satisQ the requirementsof Article 36(2)"3'0.Mexico
suggests that "[ulnder international law,the United States is
required to take whatever actionis necessaryto give effect to its
treaty obligations":"'. This, however,goes only to the limits of
the obligation actually imposed bythe VCCR under
international law andno further. The clemency processes in the
ten states relevant to this caseal1will consider any claim raised
by the defendant regardinga breachof Article 36. That is what
LaGrandrequires. The mle of effectivenessdoes not require or
even permit this Court to rewritethe VCCR to imposeon a
party an obligation, not expressor clearly implied in that treaty,
under the guise of providinga remedy for a breach.
6.102 Itis well-settledthatpartiesto a treaty should be
presumed to have the intention to makeit effective3I2.Thus, the
ancient maxim utres magisvaleatquampereat, often referred
3'0Mexico Memorial.,para. 283. SeegenerallyMexico Memorial,paras.
283-298. Mexicothere discussesat lengthwhether remediesneed to be
effective and whether there isanobligationof result. To be clear, the
process for review and reconsideration orderedby the Court inrandhas
to be effective. That is, it mustbe capableof "allow[ing] the review and
reconsiderationof the convictionand sentencebytaking accountof the
violation of the rights setthinthe Convention". LaGrand,Judgment,
para. 125. The United Statescrirninaljustice systems conformto this
standard.
31'Mexico Mernorial, para.284.
312See TheS.S. "Wimbledon ,Judgment,1923,P.C.I.J.,Series,A., No. 1,
pp. 24-25 ("the Court feelsobligedto stopat the [interpretive]point where
the so-called restrictive interpretationwouldbetrary to the plain terms of
the article and would destroywhathas been clearlyranted"); Oppenheim's,
supra note 90 at p. 1278,Annex23, Exhibit61.to as the "rule of effectiveness," is a settledprinciple of treaty
interpretation313b , ut its scope and applicability remainsubject
to considerabledebate. In its basic formulation,partiesto a
treaty "are assumedto intend the provisions of a treaty to have a
certain effect, and not to be meaningless"314.
6.103 To the extent that this Court has discussedthe principle,
3'3 The "rule of effectiveness" is not specificallyenumeratedin the VCLT.
Nor was it includedexpressly in the InternationalLawCommission draft
articles on the lawof treaties. However, the lnternationalLaw Commission
considered that, to the extent the effectiveness principlereflectsa true
general rule of interpretatioitis embodied in thegeneralrule that calls for
a treaty to be interpreted in goodfaith in accordancewiththe ordinary
meaning to be givento the terms of the treaty in theircontextand inthe light
of its object andurpose. United Nations,Reportof theInternationalLaw
Commissionto theGeneralAssembly, Dra) Articlesonthe Lawof Treaties
with Commentaries,document Ai6309IRev.l in 1966Yearbookof the
lnternational Law Commission, Vol. II,Documentsof the second partof the
seventeenth sessionand of the eighteenth session includingthe reportsof the
Commissionto the General Assembly, document
A/CN.4/SER.A/1966/Add.1,p 219, para. 6, Annex 23,Exhibit 138. This
general rule of goodfaith interpretation is includedboth inthe International
Law Commissiondrafiarticles on the law of treatiesat Article 27,paragraph
1,and in the VCLTat Article 31,paragraph 1. Indiscussing the utres magis
valeat quampereat maxim, the lnternational LawCommissionstated:
"Men a treaty is opento two interpretations oneof which does and the
otherdoes not enablethe treaty to have appropriateeffects, goodfaith and
theobjects and purposes of the treaty demand thatthe former interpretation
should be adopted. Properly limited and applied,the maxim does not cal1for
an 'extensive'or 'liberal' interpretationin thenseof an interpretation
going beyond what is expressedor necessarily tobe impliedin the terms of
the treaty. Accordingly,it did not seem to the Commissionthat there was
any need to includea separate provision on thispoint." Id. Seealso Ian M.
Sinclair, TheViennaConventionon theLaw of Treaties,pp. 74-75(1973),
Annex 23, Exhibit201 ("the Commission seem tohavebelieved that the
principle of effectivenessexpressed in the maximut res magisvaleatquam
pereat was subsumedin the reference to 'good faith'and 'theobjectand
urpose of a treaty' containedin Article 3.").
'' OppenheimS,supranote 90 at p. 1280,Annex23, Exhibit61. Seealso
id. at p. 1280n.26 (surveying cases and commentators).it generallyhas recognizedthat: "[ilt is the duty ofthe Court to
interpretthe Treaties, not to revise themw3l5.For example,the
Courtnoted: "The principleof interpretation expressedin the
maxim: Ut res magis valeat quampereat, often referredto as
the rule of effectiveness, cannotjusti@ the Court in attributing
to the provisions forthe settlement of disputes inthe Peace
Treaties a meaning which, as stated above, would becontrary to
their letter and spiritW3l6L . ikewise, the Court alsomade clear
that the effectiveness principle would be inapplicable where:
"the Court would haveto go beyond what can reasonably be
regardedas being a processof interpretation, andwould haveto
engage ina process of rectification or re~ision"~". The Court
concluded:"[rlights cannot bepresumed to exist merely
because it might seemdesirable that they sho~ld"~'~.Perhaps
sometreaties could be made more "effective" if moredrastic or
far-reaching remedies for their breach wereengrafiedupon
them. But the very fact thatthe terms of a treaty maynot set
downa fully effectiveremedy (or, as here, no specificremedy)
3'5 lnterpretation ofPeace Treatieswith Bulgaria,HungaryandRomania,
SecondPhase, Advisory Opinion,I.C.J.Reports 1950,p. 229. Mexico
makesreference, in itsMemorialat paragraph 289,to thejurisprudenceof
the EuropeanCourt of HumanRights(hereinafter referred toas the
"ECHR") on the questionof effectiveness. Butthat Court'sdecisions are in
accordancewith the well-settledrule "that the terms of anytreaty are the
primaryreference poiritandno interpretation which isinconsistentwith the
text,whatever its other ments,n be regarded as legallycorrect." J.G.
Memlls, TheDevelopmentofInternational Lawby theEuropeanCourtof
HumanRights,p. 120(1993),Annex 23, Exhibit 139(discussingthe
"effectiveness principle"as applied bythe ECHR to the European
Conventionon HumariRights). One consideration that has oftenprompted
the ECHR "notto adoptanextended interpretation ...[hasbeenits
conclusionthat] some mattersare best leftto national regulation." at p.
122.
3'6Interpretationof Peace TreatieswithBulgaria,HungaryandRomania,
SecondPhase, Advisory Opinion,I.C.J.Reports 1950, p. 229.
3'7SouthWestAfrica, SecondPhase,Judgment,I.C.J.Reports1966,p. 48,
rira. 91.
Id.may be due precisely to"the inability of the parties to reach
agreementon fully effectiveprovisions; in such a case the court
cannot invokethe need foreffectiveness inorder,in effect, to
revise the treaty to rnakegoodthe parties' omission"319.
6.104 Here, there isnovalidityto Mexico's suggestionthat the
United Statesis not givingfull effect to thereview and
reconsideration remedyofLaGrand. United Statescourtsand
clemency authoritiesprovidecareful review of the
consequences of a breachof the VCCR. LaGranddoes not
require a different approach. The remedyrequiredis an
effectiveprocess that takesintoaccountthe breachof the
VCCR, not, as Mexicowouldhave it, a specificand favorable
outcome in every case. Theremedial aspect of Article36(2)
does not require that the receiving State, inproviding review
and reconsideration ina casewhere a breach of Article36(1)
may occur, ignore whetheractual consular notificationoccurred
in fact, or whether the foreignnational in fact understoodhis
substantive criminaljusticerights, was representedby
competent legal counsel,had interpretative assistancewhen
necessary, or had the assistanceof his family, friends,or other
experts in the developmentof mitigation evidence,or that the
receiving State othenvise refrainfromconsideringthe actual
implications of the breachfor the conviction and sentence.
"Review and reconsideration"requires simply thata decision
maker take a second, goodfaith look at an individualcase
"taking account of theviolationof the rights set f~rth"~~' in the
VCCR. LaGranddoesnotrequire anythingfurther - much less
the extraordinary stepMexicoproposes of vacatinga conviction
or sentence and retryingthecase32'.The rule of effectiveness
319
320Oppenheim S,supranote90at 1281,Annex 23,Exhibit61.
321LaGrand,Judgment,para.128(7).
A decisionto leavetheconvictionorsentenceundisturbed,aftefull
reviewandreconsiderationi,nfactspeakswell oftheUnited States'riminal
justice systems,becauseitreconfirmsthata foreignnational hreceivedadoesnotsupportadifferentconclusion.
fairtrial. Itin no waycalls into questiontheadequacyof theappellateor
clemencyprocess. CHAPTER VI1
THE COURTSHOULDNOTFIND VIOLATIONSOF
ARTICLE 36(1) OR (2) IN ANYOF THE FIFTY-FOUR
CASES,BECAUSEMEXICOHASFAILED TO MEET
ITS BURDENOF PROOFREGARDINGTHEM
7.1 The Court should now turnto the fifty-fourcases
Mexicohas put in issue against the legal parameters and the
factualbackdrop that the United Stateshas provided, subject to
the fundamental point that the Courtis not and should not act as
a court of criminal appeal. To the extent that the Court decides
to consider individually each ofthe fifty-fourcases, its role is
straightfonvard. It should first determinewhether any ofthem
is appropriate for review by this Court. If reviewis appropriate,
it should then determine whether therewas a breach of Article
36(l)(b) and, if so,of Article 36(2)as well. The Court should
proceed with caution,however, because Mexico's descriptions
of these cases, to the extent that they even attempt to venture
beyond the conclusory, do not provide a reliable basis for
decision by this Court. In lightof its on-going investigation, the
United States hasbeen able to developthe more accurate
statementsof relevant facts set forthin Annex 2, which Annex
is based in largepart on the conclusionsdrawn in the course of
litigation by courts of competentjurisdiction in the United
States. Those conclusions were reached after presentation of
evidencetojuries orjudges, with theresponsibility and
opportunityfor assessing witness credibility, examining the
physical evidence,and weighing al1of the other information
presented by both the prosecution anddefense.
7.2 No remedy of any sortwillbe necessary or appropriate
except inthose caseswhere Mexicocarries its burden ofproving abreach of somerelevant provision ofArticle 36322.
Thisis required underthe principleofactoriincumbitprobatio,
and is well-settled inthe court's jurisprudence323.Where there
is a failureof proof (or its complete absence) asubmission
shouldbe rejected as unproved. Where the evidenceis
insufficientto permitthe Courtto reach definitiveconclusions
withrespect to criticalfacts in dispute (whichthe Court may
concludeis the caseas regardsthese fi@-four casesbecause the
UnitedStates and Mexicosharplydisagreeaboutmany of the
criticalfacts) suchclaims too shouldfail, for theCourt "cannot .
.. apply a presumption that evidence which is unavailable
would,if produced, have supported aparticular"point of
vie^^^ T^.e importanceof a rigorousreviewof the facts (and
the concomitant requirement to resolvedoubtsregardingthe
evidenceagainst Mexico)is well iilustratedby the fact that,
afterraising the caseof Angel MaturinoResendiz inits
322 Mexicoapparentlyseeksto shirk itsobligation ofproofby arguing that
"placingthe burden ofshowingprejudiceon the victimof theviolations
woulddeny to Mexicoand its nationalsthe full effectof theArticle 36
provisions",Mexico Memonal, para. 384,but the Court shouldreject this
baldattempt to shift the burden. It fallssquarelyon Mexico toprove al1the
elementsof its claim andas we state,nfvaat ChapterVI1.Dthere can be no
breachof Article 36(2). Mexicohas failedto meet itsburdenof establishing
factsand,in many cases,makes factualrepresentationsthathave been
specificallyconsideredandrejected bya competentcourt in the United
States.Those courtswere in the best positionto reviewal1of the evidence,
to consideral1of the argumentsadvancedby the interestedparties, and to
makejudgments as appropriate.
323See,e.g., MilitaryandParamilitaryActivitiesinand againstNicaragua,
(Nicaraguav. UnitedStatesofAmerica), Jurisdiction anddmissibility,
Judgment,I.C.J.Reports 1984,p. 437,para.101, in whichthe Court noted
that"it is the litigant seekingto establisha fact who bearsthe burden of
proving it;and in caseswhere evidencemay notbe forthcoming,a
submissionmay in thejudgrnent be rejectedas unproved,but is not to be
ruledoutas inadmissibleinlimineonthebasisof an anticipated lackof
yoof '.
24
Land,Island and Maritime Frontier Disput(eElSalvador /Honduras:
Nicaraguaintervening),Judgment,I.C.J.Reports 1992,p.399,para. 63.application andseeking the issuance of provisionalmeasureson
his behalf, Mexicoupon furtherinvestigation has concededthat
Maturino Resendiz;as provided consujarinformationwithout
delay325.
A. None ofthe Cases InvolvingMexicanNationalsis
Appropriatefor ConsiderationbyThis Court
7.3 In the Chapteron Admissibility,wenoted that none of
the cases involving Mexicannationals is in anappropriate
posture for review byan internationaltribunal. More
specifically, litigationis pending before courtsin the United
States in al1but four of the fifty-four casesraisedby Mexico. In
many cases, thefirst direct appeal of the conviction and
sentence is stillpending326.The four casesinwhich no
litigation is pendinginclude two of the threepersons who have
been granted clemency and areno longerfacingcapital
punishment (thethird continues to pursuea federal habeas
petition)327.Theindividuals in the two finalcases328 have
exhausted theirjudicial appeals, but both areeligibleto file
clemency petitionsthough they have not yetpursuedthis
municipal remedy:329.
325 Mexico Memorial,para. 89n.112.
326 #3 Benavides,#5 Contreras Lopez,#6 CovarrubiasSanchez,#7 Esquivel
Barrera, #8 GomezPe:rez,#9 Hoyos,#10 JuarezSuarez,#11 Lopez,#12
Lupercio Casares,#13 Maciel Hernandez,#14 ManriquezJaquez,#16
Martinez Sanchez, #17Mendoza Garcia, #22SalcidoBojorquez,#24 Tafoya
Aniola, #27 VeranoChz, #28 Zambrano,and#50HemandezAlberto.
327 #45 CaballeroHeinandez,#46FloresUrbhn,and#47SolacheRomero
were grantedclemency.
328#31 Fierro Reynaand #39 MorenoRamos.
329 Further, FierroReynahas failedto exhaustmunicipaljudicial remedies
because he raisedhis VCCR claimin his third sthabeas petition,then
failed to pursuetheclaim when the 171"DistrictCourtof El Paso,Texas,
declined tordera hearingon the issueafter findingthatthe claimwas
without ment andinany case wasprocedurallybarred.See Cases
Declaration, Appendix31,para.8,Annex 2. B. Mexico HasNot Proven itsAllegationsof Breachesof
Article 36(l)(b) With Respectto the Fifty-FourCases
7.4 The specificsof al1fifty-fourcases are set forth in
Annex 2. To establish its claimthat each of these cases
involved a breach of Article 36(l)(b), Mexicomust establish
each of the essential elements to such a finding. First, it isto
Ourknowledgeundisputed that Article 36 does not protect
nationalsof the receiving state, and that dual nationals may be
treated by each Stateof nationality as exclusively its own
national while in its tenitory, including with respectto consular
notification330.Thus, the United States owed obligationsto
Mexico only with respect to personswho at the time of their
arrestwere Mexicannationals and not also United States
nationals.
7.5 Second,no obligation can be due in the case of a foreign
national who isarrested if the factthat he is a foreign nationalis
- -
330 See, e.g., LukeT. Lee, ConsularLawandPractice, p. 159(1991),Annex
23, Exhibit 140(consularprotection "may only be given [todual nationals]
either unofficiallyor in exceptionalcircumstances .... As Satow puts it:
'The 'effective'nationality in such circumstances is that of the receiving
state.'" (citing Satow,GuidetoDiplornaticPractice (LordGore Boothed.,
1979),p. 27.6.) Seealso;R.C.R. Siekmann, "Netherlands State Practicefor
the Parliamentary Year 1982-1983",in 1984NetherlandsYearbook of
InternationalLaw, Vol. 15,p. 344,Annex23, Exhibit 141("Generally ...
the receivingState will give precedence to its own nationality"). The
peculiar nature ofual nationals at international law is recognized by the
VCCR itself in Article 71, whichdistinguishesbetween those members of a
consularpost who are nationals of a receiving State andhosewho are not,
for purposes of immunity andjurisdiction, andin Article 22, which provides
that "[c]onsular officersmay not be appointedfrom among personshaving
the nationality of thereceiving State exceptwith the expressconsent of that
Statewhich maybe withdrawn at anytime". Exceptionsare made explicitly,
by treaty. SeeConsularConvention, 17Sept. 1980,United States of
America-People'sRepublic of China, art. 35,33 U.S.T. 2973, amendedby
exchangeof notes, 33 U.S.T. 3042, para.2, Annex 23, Exhibit 85.not known. Given its extraordinarily diversecitizenry, there is
no a prior basis in the United States formaking assumptions
that apersontaken into custody is not aUnited States national
basedon extinsic factors. Only when the competent authorities
are awarethat they have arrested a foreignnationalwould the
VCCR'sobligations be clearly applicable33'.Mexico suggests
that the obligation anses when the arrestingofficers "had reason
to know"that a person is ~exican~~*.Applyingeven this
somewhatlower standard, for purposes of argument, Mexico
still mustbear the burden in each case of provingthat the
arrestingofficers in fact knew or reasonably should have known
that theyhad arrested a Mexicannational, anddoubts must be
resolvedagainst Mexico.
7.6 Third, Mexico must establish that eachMexican national
neverthelesswas not givenconsular information under Article
36(l)(b). It is not sufficientto allege that Mexicowas not
officiallynotified, since such an allegation does not rule out the
possibilitythat the foreignnationalwas informedof the
possibility ofconsular notificationbut declinedit.
7.7 A carefùl examinationof Mexico's Memorial shows that
it has failedto meet its burden of proof withrespect to each of
these essential ele~nents. First, it has not offeredproper proof of
Mexicannationality in anyof the fi@-four cases. This is no
smallmatter; even where nationality lawsconfercitizenship
automaticallyupoi~birth in a country, they may result in loss of
nationality ifcertain conditions arise, suchas acquisition of
foreignnati~nality~~~.
33'See g., LaGrand,Judgment,paras.16,54. Considerableeffortwas
spentestablishingpreciselywheneachstatebecame awaof thenationality
oftheLaGrand brothers.Theirtruenationalitybecameknown sometime
betweentrialandsentencing.
332SeeMexico Memorial,para.11.
333TheDeclarationof RobertoRodriguezHemandez,Annex 7tothe
Memorial,providesnoexplanationof how Mexicodeterminedthatal1of the7.8 Further,Mexico has failed adequatelyto addressthe
question of dualUnited States-Mexicannationality. While
quite commonlysomeone Mexico couldestablishis a Mexican
citizen is not also a United States citizen,this is not necessarily
the case and isnot a basis on which Mexicocanmeet its burden
when there areclear indicationsto the contrary. We have
confirmed that at least one person whose caseMexico has
advanced isa United States citizen, and wasso at the time of his
arrest. The facts about a number of the otherpersons raise a
substantial possibility that they werealso UnitedStatescitizens
at the time of their arrests,but this cannotbeconfirmed without
obtaining information that is best availableto Mexico andthe
individuals whose claimsit seeks to ad~ance~~~ T.he United
individualsare Mexican nationals. The casesummariesinAppendixA to
that Declarationgenerallyeitherssert Mexican nationalityor birthin
Mexico withoutcitingany supportingMexicanlaw,document,or
determination establishingMexican nationality. Wheredocuments
indicatingMexicannationalityare cited,they are generallyrecordsthat
originated intheUnitedStatesthatinherentlycannot beorma1
determinationsof Mexican nationality. In a fewcases,e.#.9 Hoyos,a
Mexican documentis referenced,but no copyisprovided. Noeffort ismade
to address the possibilityof loss ofMexican nationality.
334 The UnitedStateshas confirmedthat #28 Zambranowas andis a United
States citizen. Weunderstandthattwo others,1AvenaGuillenand #2
Ayala, werebonito a United Statescitizen parent; ouron-going
investigationindicatesthattheyare likelyUnitedStatescitizens(Ayala
almost certainly). The limitedbackgroundinformationavailableo# 4
Carrera Montenegro,#5 ContrerasLopez,#8 GomezPerez,#13 Maciel
Hernandez,#16Martinez Sanchez,#18 OchoaTamayo,#20 Ramirez Villa,
#21 Salazar,#24TafoyaAmola, #29 ZamudioJimenez,#36 LealGarcia,
#40 Plata Estrada,#41 Ramirez Cardenas,#43 RegaladoSoriano,#46 Flores
Urban, and #53TorresAguilera suggestssomepossibilitythatthese
individuals areUnitedStatescitizens. Thereare nationalityquestionsabout
others as well. Forample,we cannotnile out thepossibility that#11
Lopez, #15 FuentesMartinez,#19 Parra Duefias,#23SanchezRamirez,#30
Alvarez, and#42Rocha Diaz,al1of whom we understandarrivedin the
United Statesasminorsand acquiredUnitedStatescitizenship. Wedo not
have sufficientinformationabout#7 EsquivelBarrerato assesshisStateshad no obligation to provideconsular informationto any
personwho was alJnited States citizen at the time of his arrest,
andtherefore no breach of Article36(l)(b) could be found in
suchcases.
7.9 When the fifiy-four casesareconsidered in light of
Mexico's proposedstandard, thatthe competent authorities in
eachof the fifty-four cases "knew or reasonably should have
known" that they hadarrested a Mexicannational, it is again
clearthat Mexico has not met itsburden. It is not enough to
assertthat, because a person was bom in Mexico, the arresting
authorities should have known hewas not a United States
citizen,but a Mexican. A person could be bom in Mexicoas a
United States citizen, or could havebecome a United States
citizen afier arriving in the United States. If a person
affirmatively representshimself to be a United Statescitizen, he
cannot later complain that he was not given consular
information under Article 36 sincehe was misrepresenting his
nationality. At a rriinimum,it must beshown that his true
nationality became known and, untilthen, no obligation arose
underthe VCCR. Even if the questionof nationality is not
explicitly addressed at the time of arrest, the key indicators of
foreignnationality are not just placeof birth, but language,
education,parentage,and other factorsthat speak to whether a
person appears to those who encounterhim to be a United
Statescitizen. Giventhe fact thatmany of the defendants in the
fifty-fourcases have lived most of their lives in the United
States,speak Englrsh,were educated inthe United States, have
family in the United States - in somecases a United States
citizenparent - Mexico must do much more than it has doneto
establish that the competent authoritiesknew or should have
citizenshipstatus. SeeCasesDeclaration,correspondingAppendice, nnex
2;Declarationof EdwardBetancourt,paras.-6, 8, Annex 18;Declarationof
DominickGentile,para.8, Annex 19;Declarationof JosephGreene,para.3,
Annex20.knownthat they werenot dealing withaUnited Statescitizen,
but insteadwith a Mexicannational335.
7.10 For example, at least seven ofthe fifty-fourindividuals
appear tohave affirmativelyclaimed to be UnitedStates
citizensat the time of their arre~t~~~ T.he caseof Ramon
SalcidoBojorquez (case#22) is exemplary in this regard. After
murderingeight people in 1989,he fled to Mexicowhere he
was arrested. He subsequentlytolda Mexican court in
Mazatlan,Sinaloathat, thoughbornin Mexico,he mamed a
United States citizen and had thereby acquired UnitedStates
citizenshipand had renounced his Mexican citizenship.He
asked tobe sent back to the UnitedStates for trialand reiterated
this request ina statement broadcast on televisionin Mexico.
Respectinghis assertionof UnitedStatescitizenship,and his
expresseddesire to waive extradition, Mexico deported himto
the United States, where he wastakeninto custody.
Approximately four monthsafierhis deportation tothe United
Stateshe sent a letterto the Mexicanconsulate asserting that he
335 ASdiscussed furtherbelow, Mexico's generalizedassertions,and its
relianceon the fact that federal immigration recordsmay in some cases have
indicatedMexican nationality, cannotetthis burdengiventhe swom
declarationsof United Statesofficialsconcemingthe complexity ofthe
citizenshiplaws of the United States,thedifficultyof establishingwhether
an individualis a United Statescitizen,andthe factthat stateand local law
enforcement officials do not necessarilyhave easyaccessto nationalitydata
heldbythe federal govemment. SeeBetancourt Declaration,paras. 2-10,
Annex 18;Gentile Declaration,paras. 4-8,Annex 19;GreeneDeclaration,
para.3 Annex 20; CriminalJusticeDeclaration,paras. 10-12,Annex 7.
36 #1 AvenaGuillen (arrest report listsplaceofbirth as California);#2
Ayala(courtdocument filed in 1989identifiedhim as a United States
citizen); #3Benavides(defensecounseladvised courthe had become a
UnitedStatescitizen); #18 Ochoa Tamayo(courtrecord filedin 1992
indicateshe was a United Statescitizenbom in Mexico);#22 Salcido
Bojorquez(see text that follows);#24 TafoyaAnlola (bookingrecords and a
court reportfiled in 1995bothidentifi himas a United Statescitizen); #30
Alvarez(Texas records identiS, him asa UnitedStatescitizen).was in fact ~exican~~~
7.1 1 In anothertwenty cases,the relevantinformation
suggests that arrestingauthoritieswould havereasonably
assumed that theyhad arrested a United Statescitizen, if they
had consideredthe issue at a11338I.n someofthese cases
Mexico allegestha.tthe competent authorities should have
known consular informationwasrequiredbecauseof the
individual's immigrationstat~s~'~.But Mexicohas failed to
show that stateancllocal police infact had accessto
immigration data,,whichis maintainedby a federalagency. In
the caseof Juan Carlos~lvarez'~',for example,it has simply
asserted that Texasstate authorities shouldhaveknown he was
a Mexican nationalbecause he had beenpreviouslybeen in INS
custody - that is,the custody of a federal,notstate, agency -
337 See Cases Declaration, Appendix22, Annex 2.
338 All of the followingwould have presented strongindicationsof being
United States citizens: Carrera Montenegro,#5Contreras Lopez,#8
Gomez Perez, #11Lopez,#13 MacielHernandez,#16MartinezSanchez,
#20 Ramirez Villa,#21Salazar, #23Sanchez Ramirez,#25Valdez Reyes,
#29 Zamudio Jimenez,#36 Leal Garcia,#37 Maldonado,#38 Medellin
Rojas, #40 Plata Estrad#41 RamirezCardenas,#43RegaladoSoriano,#45
Caballero Hemandez,#46 Flores Urban,#53TorresAguilera. SeeCases
Declaration, correspondingAppendices,Annex 2.
339#4 Carrera Montenegro(Mexicocites Carrera Montenegro'sregistration
with the INS as apennanent residentas the reason whycompetentstate
authorities should haveprovided consularinformation);ontreras Lopez
(Mexico asserts thathis registrationwith the INSasamanentresident
since 1989"wouldhaveemerged as a matter of courseduringany routine
background check');l13Maciel Hemandez (Mexicoclaimsthat his
registration with theSas a permanentresident "would haveemerged
through a routinepolicebackgroundcheck'); #25ValdezReyes(Mexico
notes he wasregisteredas a temporaryresident at thetimeof his arrest as
support for its assertionthat Califomiapolice shouldhaveknown consular
information was required);53 Torres Aguilera (Mexicocites Torres
Aguilera's registratiwnwith the INSaspermanent residentas the reason
why competent authoritiesshould haveprovided consularinformation).
340See Cases Declaration,Appendix30,Annex 2.facingpossible deportation. But this post-hoc argument is in no
way linked to any actual duty orpractice on the part of Texas to
make such an inquiry, nor to any evidence that such an inquiry
if made would haveyielded a responsein any particular period
oftime. Mexico's argumentis particularly unpersuasive given
the fact that immigration status would be irrelevantto the
criminal investigationand that statepolice have no
responsibility for enforcing federalimmigration laws and are
ofienreluctant routinely to inquireinto a person's immigration
status in order to minimize the risk of allegations of
di~crimination~~'.
7.12 Finally,Mexico has failedto meet its burden of
establishing in al1of the fifty-fourcases that, if arresting
authorities knewthey had a Mexicannational in custody, they
failedto provide consular informationas required. No
declarationsfromthe actual personsconcerned have been
341 Seesupra note335;see also MuzaffarA. Chishti, "MigrationRegulation
GoesLocal:The Roleof States in U.S. Immigration Policy", inNew York
UniversitynnualSurveyofAmericanLaw,Vol. 58, No. 3, 2002,pp. 372-
373,Annex 23,Exhibit 142("The attitudeof many localpolice chiefseven
inthehighly security-consciouspost-September 11atmosphereindicatesthat
policecontinueto fearrisking relationshipswith immigrant communities. .
.Experiencealsosuggeststhat if localpoliceare knownto have cooperative
relationshipswith the INS,members of immigrant communitiesmaybe less
likelyto report crimesortherwiseofferassistanceto officersinvestigating
crimes. Furthemore, United Statescitizens inethnic communitiesmayalso
be likelyto stopcooperatingwith the policeif they believe thattheyare
viewedwith suspicion because of their ethnicity."); JudgeLinda Reyna
Yaiïez& Alfonso Soto,"Local Police Involvementin the Enforcement of
ImmigrationLaw" in HispanicLawJournal,Vol 1,No. 1, 1994,pp.45-46,
Annex23, Exhibit 143;id.at p. 45 ("[Qluestioning al1suspectson their
immigrationstatuswould hardly be consideredimpermissiblewhen
proceeded by,and followedwith, a numberof questionsregardingthecrime
understate law. Still,courts have prohibitedstate and localpolice's
questioning suspects abouttheirîghtto be in the United States,their
nationality,their nationalorigin, andtheirplace of birth, evenwhen the
contactcomes throughstate traffic or criminalcharges".).submitted. Moreover, our ownefforts haveuncovered cases in
which such information clearlywas provided.
7.13 For example, Pedro Hernandez Albertowas, when
arrested,carrying a card fromthe Orlando Mexican Consulate
that informedhim that he couldcommunicatewith his consulate
and urgedhim to do Knowing his Mexicannationality,
the PoliceChief advised him, inSpanish, of both his Miranda
rightsand that he could contactthe MexicanConsulate, and
gave himaccess to a telephone. HernandezAlberto gave no
indication thathe wanted a Mexican consularofficer to know of
hisdetention. In light of these facts (HernandezAlberto
conceded at trialthat ChiefGarcia had told him that he could
cal1the Mexican Consulate), there can be noquestion that
HemandezAlberta was awareof the requirementsof Article 36,
wasprovided an opportunityto contact the Mexican consulate,
anddeclinedto do so343.
7.14 Similarly, court transcripts demonstratethat Arturo
JuarezSuarezwas given consular informationunder the VCCR
athis arraignmenton 17July 1998,two daysafter his arrest.
Whenasked if he would likethe authoritiesto contact the
Mexicanconsulate, Suarezreplied,"what for?" After
conferring withhis attorney,Suarez declinedto request
342SeeCases Declaration, Appendix50 and attachedExhibits, Annex 2.
343Mexicosuggestsin footnote270 of Annex 7, AppendixA that because of
Mr.HernandezAlberto's "mental illness, inabilityto speak English, andthe
factthat al1of hispnor dealingswith the Mexican consulatewere in
Orlando,Florida it is doubtfulhe would have knownhow to contact the
nearestconsulate even if provideda phone". MexicoMernorial, Appendix
A to Annex7,para. 324 n.270. This is simply untnie. Not only is his mental
illnessnot established,but it isclearthat his interactionswith Chief Garcia
werein Spanish,not English, andhe could have askedfor the number of the
Mexicanconsulateat any time. Finally, regardless ofthe reasons for Mr.
Alberto'sdecisionno!:to requestconsular notification,the fact of the matter
isthathe was expressly given the opportunity to do so,which is al1that the
VCCRrequiredof the:United Statesin this case.notification3*. Although Mexico alleges abreachof Article
36(l)(b) based on its novel interpretationof"without delay,"
the actionsof the authoritiesunder these circumstancesclearly
compliedwith the VCCR~~~I .n any event,inasmuchas Juarez
Suarez evidentlydid not wantthe Mexicanconsulatenotified,
providing him consular informationearlier wouldnot have led
to notification.
C. Mexico HasNot ProvenIts Allegationsof Breachesof
Article 36(l)(c) WithRespect totheFifty-FourCases
7.15 Mexicoclaims that the United Stateshasalso breached
Article 36(l)(c) in the fie-four cases, asan inevitable
consequence of the alleged breachesof Article36(l)(b).
Mexico cannotmeet its burdenof establishingsuch violations,
however, unlessit first provesa violationofArticle36(l)(b) in
each of the fifty-four cases,which it has failedto do. In
addition, the Court made clear inLaGrandthat a violation of
Article 36(l)(c) flows froma violation of Article36(l)(b) only
when the consular officeris infact prevented fromrendering
consular assistance346.Mexicoconcedesthat, intwenty-two
cases, consularnotificationin fact occurredintime to allow
consular assistance tobe provided prior toor at trial,thus
precluding a breachof Article36(21~~'.Infact,in many of
--
344See CaseDeclaration, Appendix 10,Annex 2 andattachedtranscript of
ydings, 17July 1998,pp. 5-6.
45 Mexiconotesthat the trial courtmled that authoritiesin California had
breached the VCCRby failingto provide consular informationunder Article
36 "without delay." Mexico Memorial,Appendix Ato Annex 7,para. 54.
We believe providingconsular informationat arraignmentmeets the
requirementsof Article36(l)(b). The trial courtdid notsolicit or have the
views of the UnitedStates onthis issue.
346See LaGrand,Judgment, paras. 73-74.
347#3 Benavides(consulate leamed of his detentionapproximately six
months before trial)Mexico Memorial,Appendix Ato Annex 7,para. 20; #6
CovarrubiasSanchez("shortly after his arrestid.atpara. 37;#9 Hoyos (13
months after arrest,which is alsoat least six monthsbeforetrid.at para.these cases Mexico acknowledges thatitprovided assistance
during pre-trial proceedingsand trial preparations348.For
51 ; 10Juarez Suarez(withina few days, at most,of arrest) ida.t para. 56;
#15 Fuentes Martinez (duringjury selection,whichprecededthe start of trial
and occurred one month beforeverdict) ida .t para.81;#17 MendozaGarcia
(several months before trial) i.t para. 91; #20RamirezVilla(several
months after arrest, which wasalmost three yearsbefore trial)id.t para.
108:#22 Salcido Bojorquez(two months after Mexicodeportedhim to the
United States, which wasmorethan one year beforetrial) ida .t para.117;
#23 Sanchez Ramirez (15 daysafter arrest, whichwas almosttwoyears
before trial)id.at para. 120;#27Verano CNZ(five months afterarrest,
which was approximatelya year-and-a-halfbeforetrial) ida.t para. 145;#29
Zamudio Jimenez (four monthsafter arrest, whichwas overa yearbefore
trial)id.at para. 154; #33 Gomez(several rnonthsafter arrest,whichwas
approximately 18months beforetrial) id.at para. 191;#34 Hemandez
Llanas(two days after arrest,whichwas over twoyears beforetrial) ida.t
para. 198;#37 Maldonado (duringtrial, at least onemonthbeforeverdict) id.
at para. 222; #39 MorenoRamos(11monthsafter arrest, duringjury
selection before trial began,and approximatelyonemonth beforethe verdict)
ida.t para. 243; #41 RamirezCardenas(four and a half monthsafter arrest,
whichwas more than seven monthsbefore trial)para. 259;#42RochaDiaz
(morethan 16months after arrest, butmore thanone year beforetnal) ida .t
para. 267;#44 Tamayo (lessthanone week beforetrial) ida .t para. 28;#47
Solache Romero (three days afterarrest and morethan a year beforetrial) id.
at para. 309; #49 Camargo Ojeda(nine monthsafter arrest, whichwas
almost four months beforetrial and30 months beforethe finalsentencing
hearing)id. at para. 32;#50 HernandezAlberto(six weeks afterarrest,
whichwas more than two yearsbefore trial) id.t para. 325; #54Reyes
Camarena (five monthsafter arrest,which was atleast seven monthsbefore
trial)d.at para. 360.
348Cases #6 Covarrubias Sanchez(consulate ableto renderassistance,
including "facilitation of defensetestimony andother legal assistance
throughout the protractedpre-trialandtnal proceedings") ida.t para. 37;#9
Hoyos(consulate able to render "consularassistance,both legal and
otherwise, .. .Inparticular,consularrepresentativesmet withtrial counsel
to discuss the pleaargain strategyand subsequentlysent a letterto the
district attorney in an effortto avoidthe death sentence").t para. 51;#10
Juarez Suarez (consuYateable toassist "the defenseby obtaining visasfor
witnesses and submittingan affidavitin supportof the defensemotionto
suppress"); id.at parsi.56;#14 ManriquezJaquez(consulateableto assist
defense counsel in gatheringevidenceand to monitorthe case)ida .t para.example,in the case of Hemandez ~lanas~~~ M, exico concedes
that itlearnedofhis case only two days afterhis arre~t~~'.
Duringthe course of his interrogation upon arrest for murder on
74;#17MendozaGarcia (consulateable to render assistance,"including
facilitatingthe processingof visasfor defense witnesses,aiding in the
presentationof the Vienna Conventionviolationat thetrialel and writing
to thecourton behalfof Mr. MendozaGarcia at sentencing"id.at para. ;1
#20 Ramirez Villa(consulateable to render assistance,"both legal and
otherwise.... In particular,consularofficers communicatedwith defense
counsel,providedfundingforan expertjury consultant,attended court
hearings,and subsequently senta detailed letterin supportof a reduced
sentencebasedon the ViennaConvention violation." The Mexican
govemmentalsowrote to the court onhis behalf.)d.at para. 108;#22
SalcidoBojorquez(consulateableto monitor the proceedingsand "assisted
thedefenseby correspondingwith Mexican lawenforcementofficiais
regardingthecircumstancesof [his]arrest and unlawfulretum to the United
States")id .tpara. 117;#23SanchezRamirez(consulateable to assist
defense counselwith a VCCR-basedpre-trial motiontosuppress and to
testifyat hearing) .t paras. 120-1;1#26 Vargas(consulateable to submit
"legalargumentsto the trialjudge basedon the ViennaConvention
violation"priorto sentencing. In addition,consularofficerstestified during
a hearingon Vargas'motion fora new trial "basedonthe violation of his
rightsunderArticle 36."id.atparas. 138-139;#27VeranoCruz(consulate
ableto render"both legal andother forms of assista....In particular,
Mexicanconsularofficers facilitatedthe travel of Mr.Verano Cruz's family
members fromMexicoto testify during the penalty phaseof the triaid".t
para. 145;#29 ZamudioJimenez(consulateobtainedvisasfor defense
witnesses fromMexicoto appear during the guiltphaseand authenticated
documentsattrial)id .t para. 154;#42 Rocha Diaz(consularofficers
"inform[ed][defensecounsel]of the Article 36 violation"and assisted in the
defense)d .t para 267;#47 SolacheRomero (consularofficer testified at
suppressionhearing aboutVCCRbreach) id .t paras.308-309;#49
CamargoOjeda(consulateableto assist defense counsel byproviding
affidavitsand lettersregarding his"lack of a prior criminalrecord in
Mexico")id .t para. 32;#54 ReyesCamarena (consulateable to render
assistance,"both legaland otherwise. Amongotherforms of assistance,
theconsulateassistedin locatingwitnesses and recordsin Mexico, and
identifieda bilingual neuropsychologistat trial counsel's request.")
ara.60.
" Id.at paras. 197-204.
350MexicoMemorial,AppendixA to Annex 7, para. 197-198.15October 1997,Hernandez Llanas informed Texas authorities
that he had a murder conviction in Mexico and had escaped
fromprison351.On 17October, Texas law enforcement
authorities contactedMexican law enforcementauthorities to
informthem of the detentionof the fugitive Hernandez
~lanas~~~T . he Mexicanconsulateappears to have been
informedof his detention that sameday by Mexican law
enforcementa~thorities~~~T . hreedays later, on 20 October,
Texas authoritiesformally notified the Mexican consulate of
HernandezLlanas'detenti~n~'~.According to Mexico, its
consularofficers"began renderingassistance, both legaland
otherwise",more tfiantwo years beforehis trial began355.
D. Mexico HasNot Proven Breachesof Article36(2) With
Respectto the Fifty-FourCases
7.16 Mexiconext asserts that the United States has breached
Article 36(2)by "foreclosing legalchallenges to convictions
and deathsentences"because courts in the United Stateshave
declinedto grant the requested remedy in cases where a VCCR
35'Id.at 4.
352Id.at4.
353Mexicoclairnsthat itlearned of his detention "without theassistance of
the authoritiesfromTexasor the United States" but not indicatethe
sourceofitsinformation. Mexico Memorial,Appendix A to Annex7, para.
198.
354EX parteHernandez,Findingsof Fact and Conclusionsof Law Regarding
Defendant'sMotionsto Suppressand on Defendant's Applicationfor writ of
HabeasCorpus FollowingPre-Trial SuppressionHearing, No. A97-364,p. 4
(216thDist.Tex,5Nov. 1998)(hereinafter,this case will bereferredto as
"Exparte Hemandez"). This document is reprinted in Mexico Mernorial,
Annex 49,pp. A1031-1034.
355MexicoMemonal, Appendix A to Annex,para. 198. Mexicanconsular
officersdid notcontact HernandezLlanasuntil 27 Oct. 1997;ten days after
learningofhis arrest and sevendays after being formally notifiedby the
Texas authorities. parteHernandez, supranote 354 at 4, Mexico
Mernorial,Annex49, p.A1034.claim has been raised,andbecause courts have appliedtheir
procedural defaultrulesto the cases beforethem. As aninitial
matter, it should be notedthat Article 36(2) addressesthe"laws
andregulations" of a State,not the applicationofthose laws and
regulations in a particularcase. Insofar, therefore, as the Court
concluded that the lawsand regulations of the United States
provide for review andreconsideration, as describedby the
Court inLaGrand, it should not proceed toconsidereachof
them individually. Shouldit do so, however,a close
examination of the casescited by Mexicorevealsthat Mexico
has failed to prove a single instance ofbreachof Article36(2).
7.17 Obviously, inthe context of the fi@-four cases, there
canbe no breach of Article36(2) if there was no breach of
Article 36(1). Therefore,the United Statescould not have
breached Article 36(2)inthose cases inwhich Mexicohas
failed to show a breachof Article 36(l)(b). The United States
could not have breachedArticle 36(2) inthe eleven casesin
which the fact of any breachof Article 36(l)(b) was knownin
time to be raised injudicial proceedings but was not356.There
can be no breach, forexample, in the case of RafaelCamargo
jed da^ b^'cause he failedto raise any VCCRclaims at trialor
in any post-conviction proceedingsto date, despitethe Mexican
consulate's learningof his case four months before histrial.
7.18 Nor can there havebeen a breach of Article36(2)when
aclaim was known, timelyraised, and considered. With the
assistance of the Mexicanconsulate, eleven ofthese criminal
defendants raised theirVCCR claim duringpre-trialprocedures
356#7EsquivelBarrera,#8Gomez Perez,#9 Hoyos, #13Maciel
Hemandez, #14ManquezJaquez,#18 Ochoa Tamayo,#27VeranoCruz,
#29ZamudioJimenez, #39MorenoRamos,#49Camargo Ojeda,and#50
Hemandez Alberto.SeeCasesDeclaration,correspondingAppendices,
Annex2.
357#49 CamargoOjeda. SeeCasesDeclaration, correspondgppendices,
Annex2.or at In each case,the defendantcould then pursue their
VCCR claims in direct and collateral appeals.
7.19 Mexico complains that the courts' "refusa1to recognize
Article 36rights as fundamentalto due process constitutes a
breach of Article 36(2) because it prevents the courts 'from
attachingany legal significance'to the effect of such
violations"359,but this complaintis unfounded for the reasons
we havealready explained - nothingin Article 36 requiresthat
the "laws and regulations of the receiving state" accord the
requirementsof Article 36(1) the statusof fündamentaldue
process rights,or grant such remedieswhen Article 36(l)(b) is
breached. Moreover, given the Court'sholding in LaGrandto
provide "review and reconsiderationof the conviction and
sentence" in light of a breach of Article 36(l)(b) when serious
penalties are imposed, it cannot possibly be thecase that Article
36(2) is breached when a court, priorto the imposition of a
sentence,weighs evidence producedwith the assistance of
Mexicanconsulates, considers arguments preparedunder the
guidinghand of Mexican consularofficers, and determines after
consideredreview that any breachof Article 36(l)(b), however
regrettable,does not require thatthe casebe tried or retriedwith
evidenceexcluded.
7.20 Nor can there have been abreach of Article 36(2)when
358See#IOJuarez Suarez (motionto suppressandor preclude deathpenalty
denied);#15Fuentes Martinez(requestfor delay of trial denied); #17
MendozaGarcia (motion to suppressdenied);#20 Ramirez Villa (sought
reduced sentence);23 Sanchez Ramirez(pre-trial motion to suppress
denied);26Vargas (motion for new trialdenied); #33Gomez (motion to
suppressdenied); #34 Hernandez Llanas(motionto suppressdenied);#37
Maldonado(request forjury instructiondenied);#42 Rocha Diaz (motionto
suppressdenied);#47 Solache Romero(motionto suppressdenied). See
also #6Covarrubias Sanchez (sought hearingon day of sentencing). See
Cases Declaration,correspondingAppendices, Annex2.
359MexicoMemonallpara. 238.a claimwas found to have been procedurally defaultedyet
neverthelesswas considered onthe merits with a resulting
findingofno prejudice. In severalcases in which a failure to
raise VCCRclaims at trial has triggered procedural default,the
courts examinedthe merits of theargument in the alternative
and foundthat the failureto provide consular informationwas
not prejudicia1360.
7.21 Butmore significantly,Mexico has failed tomeet its
burdenof showing abreach of Article 36(2) in anyof the fi@-
four casesbecause it cannot show that the United Stateshas not
providedandwill not provide review and reconsiderationof any
convictionand sentence. For if reviewis not obtainedthrough
thejudicial process, it may be obtained through theclemency
process. Thatprocess has already resulted in the capital
sentencesof three of the fifty-fourpersons being reduced.
360 #26Vargas(trial court found thathis statementwas voluntaryand that he
had knowinglywaived hisMirandarights. Mexican consulatelearned of his
detention 15days after his arrest.);#36 Leal Garcia (in statehabeas
proceedings,thecourt noted his proceduraldefault, but also rejectedhis
claimsofprejudiceonthe ments. In particular, the court foundthat Leal
Garcia was notdetained or in custodyat the time he gave his statements.
Thus, thecourtfound,authoritieswere not obligated to informLeal Garcia
about Article36 at the time they questioned. It also foundthat Leal
Garcia failedto showthat the allegedVCCR breach prejudiced himat trial.);
#38 MedellinRojas (in state and federalhabeasproceedingsthe courts
found MedellinRojas was not demonstrablyprejudiced by the VCCR
breach.)#40 Plata Estrada (state and federal courts foundnoprejudice); #41
RamirezCardenas(despitefailureto raise at trial, state courtconsidered
claim onappealand foundno prejudice);#48 Fong Soto(in statehabeas
proceedings,court found that FongSotohad failed to provideevidence that
theresultsofthe trial would havebeen different with the assistanceof the
Mexican Consulate,or that he was prejudicedby the lackof information at
sentencingsee Mexico Memonal, Annex42, pp. A837-A838);#52Loza
(court foundno prejudice).ee CasesDeclaration, corresponding
Appendices,Annex2. E.The ClemencyProcessDoes ProvideMeaningfulReview
and Reconsideration
7.22 The clemency process thatMexico contends is
inadequate hasalreadyresultedin the commutation ofthe
capital sentencesofthree of the fifty-four persons Mexico has
included in this case. In January2003, the Governor of Illinois
granted clemencyto three of the capital defendants - Juan
Caballero Hernandez(case #5), Mario Flores Urban(case
#46), and GabrielSolacheRomero (case#47) - and based his
decision in parton his concern thatVCCR obligations were not
met in those cases. Through the ConsulGeneral and an
attorney retainedb:yMexico, theGovemment of Mexico
appeared on behalf'ofSolacheRomero at hisclemency hearing.
Subsequent to thatappearance,the Governor announced his
clemency decisionand specifically referredto the "five menon
death row" (three of them Mexicannationals) "who were denied
their rights undertheVienna Convention" 361.
7.23 Two additionalcases of the fifty-four have reached the
stageof clemency, whichis generallyapplied foronly after al1
avenues forjudicial reliefhavebeen exhausted. These are the
casesof CésarRobertFierro Reyna (#3 l),and Roberto Moreno
Ramos (#39), neitherof whom has yet petitioned for clemency.
Nevertheless, twopreviouscases - Javier SuarezMedina and
Gerardo ValdezMaltos - have received reviewand
reconsiderationvia the clemency processin response to specific
requests by the UnitedStatesto the appropriateclemency
authorities. Eachofthese cases demonstratesthe manner in
whichthe c1emenc;y process mayoperate to rovide the review
and reconsiderationcalled for in~a~rand~~ .
361SeeCases Declaration,Appendix47, Annex 2. SalsoIllinois
ClemencyDeclaratiori,Annex 12.
362Mexicowronglyseekssupport for its position thatclemency review is
inadequateby pointing,in paragraphs264 to 279of its Mertothe factthat clemencywas denied inthe Fauldercase, whichpre-datedLaGrandand
involveda Canadian national. First, Mexicohas erroneouslyimpliedthatthe
Department ofState requested that Faulderbe grantedclemencybasedona
breach ofArticle 36; in fact, the letterssentby the Departmentof State tothe
Texas clemencyauthorities did not go that far.See,e.g.,Letter from
Madeleine K.Albright, Secretaryof State, United StatesDepartmentof
State,to LloydAxworthy, Ministerof ForeignAffairs,Canada, 27Nov.
1998,Mexico Memorial Annex 29, p.A435.
Second,Mexico has mischaracterizedthe facts relating to litigation,
in Faulder v.TexasBoardofPardonsandParoles,involvingthe clemency
process asapplied to Faulder. Mexicoselectively quotesfrom a decisionby
a UnitedStatesDistrict Court aboutthe Texas Boardof Pardonsand Parole
without acknowledgingthat the same Courtheld thatFaulderand a co-
petitioner"failed to prove that theywere denied accessto the clemency
process or thatthe votes in their cases were arbitrary,capricious,whimsical,
or basedon improper factors". Faulder v. Texas BoardofPardonsand
Paroles,etal., No. A 98 CA 801 SS, slipop. at 15(W.D. Tex. Dec. 28,
1998),Annex23, Exhibit 144. Mexicoalso fails to acknowledgethat the
fairnessandadequacy of the Texas clemencyprocesswas specifically
considered andupheld by the United StatesCourtof Appeals in thatvery
case. SeeFaulder v.TexasBoard of Pardons andParoles, 178F.3d 343,
344-345 (5thCir. 1999) @ercurium),cert.denied,527 U.S. 1017(1999),
Annex23, Exhibit 145. And, Mexicocreatesthe misleadingimpressionthat
the StateDepartment letter to the TexasBoardwas ignored,citingthe
testimony ofone member of the Board. But that membermerely
acknowledgedwhat the Department itselfsaid when it stoppedshort of
recommendingclemency forFaulder - that the Departmentdid not have
access to al1of the relevant facts. (It is true, however,that the Department's
letters intheFauldercase made severalpoints that were not madein some
subsequentMexican cases; this reflectedthe Department's different
assessmentsof the facts relatingto the breaches of Article(l)(b) in the
cases andtheirpotential significance.)
Mexicoalso mischaracterizesthe cases of MexicansIrineoTristan
Montoya,Mario Benjamin Murphyand MiguelAngel Flores,Mexico
Memorial,paras. 141-147,inwhich clemencywas alsodenied. Those
mischaracterizationsare addressedin the ComplianceDeclaration,para. 18
and Appendix5, Annex 1. In any event,these casesalsopredated this
Court'sdecisionin LaGrand. The approachtaken by the United Statesto
cases involvingbreaches of Article 36 has changed significantlyin the wake
ofLaGrand. Mexico's suggestion thatclemencyauthorities"pay littleor no
heed to theDepartment of State", MexicoMemorial,heading of Chapter
IV(B)(3)(d),para. 275, is beliedby the facts. The experiencesinceLaGrand 1. TheCase ofJavier SuarezMedina
7.24 Suarez Medinawas one of severalmenwho in
December 1988participatedin the sale ofcocaine to an
undercover police officerposing as a cocainecustomer. Suarez
Medina planned,with his accomplices,to sel1cocaine to the
officer, kill him, andthen re-sel1the cocaine. He shot the
undercover officereight times with a semi-automaticmachine
gun when the saledid not go as planned. Heconfessed to the
killing, was convicted,and was sentenced tocapital
punishment.
7.25 Three days afier his conviction, SuarezMedina was
visited by Mexicanconsular officers. TheMexican Legal
Adviser later provided an affidavit in SuarezMedina's case
that:
Since verifiing Mr. Suarez Medina's nationality
in June 1989,Mexican consular officiaishave
closely monitored the case, regularly visiting
him in prison,and confening closelywith
defense counsel. We have also invested
substantialresources in his defense. For
example,we have retained experiencedcounsel
to assist his lawyer in developinglegalclaims.
In addition,wehave retained an investigatorand
two mental health experts . ..to develop
mitigating evidence that was neverintroduced at
the time of Mr. Suarez Medina's [original]
incasessuchas SuarezMedinaandVafdezMaltosmakes thisabundantly
clear.7.26 Direct andcollateralappeals were heard for more than
ten years, followingMexico'sfirst involvement,by al1relevant
courts. Given whatMexico itselfcharacterizesas its extensive
involvementin andsupportof the case,beginning in June 1989,
and its retention of experiencedcounsel, it is indeed surprising
that no claim raising theVCCR was advancedby counsel for
SuarezMedina orby Mexico forover thirteenyears - from June
1989until August2002~~".Significantly,the State of Texas
concededthat, had SuarezMedina raisedthe VCCR claim
during his direct appealor in state collateralhabeas corpus
proceedingsover theintervening years"it is unlikely the Texas
courts would have appliedany proceduralbar against reviewing
thec~aim"~~~ .he failureto raise this issuein direct or
collateral appeals for thirteenyears cannot fairlybe
characterized as excusableerror, nor can Mexico complainthat
the defendant wasnot awareof the VCCR's requirements. If
anything, the failureto raise the claim as a basis for demanding
reversalof the conviction andexclusion of the confession
reflectsMexico'sunderstanding atthe time (an understanding
withwhich we emphaticallyagree) that theVCCR simply does
not require suchan extraordinaryremedy.
7.27 Nevertheless, when Mexicanauthorities finally brought
this case to the attention of the StateDepartment in the
Departmentcontactedthe Governor of Texas and the Texas
Boardof Pardons andParoles, drawing their attentionto the
363Briefin Oppositionto PetitionfWrit of CertiorariandApplicationfor
Stayof Execution,edina v.Texas,CaseNo. 02-5752, p.13,cert. denied,
536U.S. 981 (2002),Annex23, Exhibit146.
364See id.atpp. 12-13, Annex23, Exhibit146.
365Id. ap.12n.14. Seealso id. atpp.2-5, 12-13.
366See MexicoMemorial,Annex25, p.A301. Mexican Embassynote1682
was sent on31Oct.1997,not31Oct. 1996, aserroneouslyreferencedinthe
DiplomaticNote fromthe Departmeno tf Stateonpage A316.failureof information about consularnotification and inviting
considerationof that fact andthis Court'sdecision inLaGrand
during the clemenc:yproceedings367.The Chairman of the
Board metpersonally with MexicanGovernmentofficiaison 8
August 2002,to discuss Suarez'spetition and Mexico'sviews
regardingthe failure of consularnotification. The substanceof
that meetingwas sharedwith al1Boardmembers, who also
receivedcopies of written materials submittedby Mexico. The
Board of Pardons andParoles,by a dividedvote, recommended
againstclemency and, as requiredby law,the Govemor
followed thatrecornmendation. In a letter dated 14 August
2002, the Board Cliairmanexplained theprocess used by the
Board inconsidering the petition368.That letter leaves no doubt
that the Board considered al1of the informationsubmittedby
Mexico andMr. Suarez and that ithad full power to recommend
that the Govemor grant clemency ifit concluded that such
action was appropriate in lightof the violation369.Given these
367 SeeMexico Mernonal, Annex25, pp. A300-A303.
368 LetterfromGerald Garrett, Chairman,Stateof Texas Board ofPardons
and Paroles, toilliarn H. Taft, IV, The LegalAdviser, United States
Departmentof State, 14Aug. 2001,Annex 23,Exhibit 195. Mexicodidnot
includethisletter in it!sAnnexes. See MexicoMemorial,Annex 25,pp.
A314-A315.
369 Mexicois critical of the Texasclemencyprocess, but the United States
SupremeCourt itself has recognized that the Texas systemis fully capable of
performingits customary functionas a failsafeto correctjudicial errorsnot
otherwiseaddressable.SeeHerrera v.Collins,506U.S. 390,411-416
(1993). Mexico'salle:gationthat theTexasclemencyprocess is "ineffective"
restslmostentirely on a statisticalshowing thatonly a small proportionof
petitionsresult inennencybeing granted. Obviouslythe statisticsMexico
offers can tellthe Coiirt nothing about thequalityof the review and
reconsiderationrovitled. Moreover, Mexico'sconclusionthat the clemency
process in Texas does not result in convictionsbeing overtumed or sentences
being commutedwhen thisis warrantedis simplyincorrect. Only recently
the TexasBoardof Pardons and Parolerecommendedunanimously,andthe
Governorgranted, pardons to 35persons,31 of them African-Ameticansand
one aHispanic-American, wherekey evidencesupportingthe convictions
was determinedto be unreliabledue to raciallyand ethnically motivatedfacts, it isevident that thereview and reconsiderationprocess
functionedhere as it was intended. There is no basisto question
the result.
2. TheCaseof Gerardo ValdezMaltos
7.28 Thesecond case sincethe LaGrand decision in which a
clemencypetition was filed is that of GerardoValdez Maltos.
In 1989,ValdezMaltosmet JuanBarron at a bar and, after
Barron indicateda sexual interest in him, invited Barron home.
Motivatedby a stronghatred of homosexuals, Valdez Maltos
then subjected Barronto a varietyof physicalthreats and
psychologicaltraumas, includingthe choice between immediate
physical castrationor death,before shootingBarrontwice,
pistol whippinghim, slitting his throat, and then setting his
body afirein a barbequepit. This was a heinoushate crime to
which ValdezMaltos admitted. At no point in any subsequent
proceedingdid he everdeny thathe had killed Barron. Instead,
Valdez Maltosoffered an insanitydefense basedon his
"religious delusions" aboutthe Bible's teachingsabout
homosexuality. His mental condition was the subjectof expert
testimonyfor both the prosecution and defenseat trial. Valdez
Maltoswasconvicted by ajury, and given a capital sentence.
Direct andcollateral a peals wereheard formore than ten years
by al1relevantcourts3 PO.
7.29 InApril2001 ValdezMaltos' familymembers advised
the MexicanConsulate in El Paso of his situation. When the
pejury. SeePressRelease,OfficeoftheGovemor,Gov.Peny Grants
Pardonsto35 TuliaDefendants(22 Aug.2003), Annex23,Exhibit147;
AdamLiptak,"Texas GovemorPardons35 ArrestedinTaintedSting,"in
TheNew YorkTimesp.A7 (23Aug.2003),Annex23, Exhibit148;David
Sedeno"35ConvictedinTuliaBustsarePardoned,"in TheDallas Morning
News pp.lA, 10A(23 Aug.2003),Annex23, Exhibit149.
70 See Valdev.Ward,219 F.3d1222, 1227-228(10thCir.2000),Annex
23, Exhibit150.United States Departmentof Statewas sent anote from the
Embassy of Mexico,there was an investigation and the
Department conclutledthat there had been a breachof
obligations undertheVCCR with respectto Mr. Valdez
altos^^'. The UnitedStatesLegal Adviserwrote on 5June to
the Oklahoma Pardonand Parole Board, andon 6 June and 11
July to OklahomaGovernorFrank Keating, specifically
drawing this breachof Article36 to their attention and
requesting thatthe!!givecarefulconsideration to Mr. Valdez's
pending clemencyrequest,includingthe Article 36 breach and
Mexico's representationson his beha~f~~*.
7.30 As Mexicoitselfconcedes,"the Oklahoma Pardon and
Parole Board recommendedcommutation [ofValdez Maltos'
sentenceto the Governor]afier reviewing extensive evidence
gathered with the assistanceof Mexico consular ~fficers"~~~.
Aftera telephone discussionwith Mexican President Vicente
Fox Quesada, GovernorKeating granted a thirtyday stay of
executionto allowhimselftime to consider the
recommendation. Inthe interim,this Court issued itsjudgment
inLaGrand. The Departmentof State's Legal Adviser wrote
Governor Keatingasecondtime on 11July 2001, bringing the
LaGranddecisiorito the Governor's attention and requesting
thatthe Governor specificallyconsider whether the VCCR
violation had any prejudicialeffect on either Valdez Maltos'
conviction or ~entencin~~~~.
7.31 There canbe nodoubt that Governor Keating,"taking
the decision inLaGrandinto account", independently reviewed
and reconsidered theconviction and sentenceof Valdez
j7'See MexicoMernorialA, nnex26,p.A340.
372See MexicoMernorialA, nnex 26,pp.A332-A335,A356-A357
373MexicoMernorialp , ara.273.
374See MexicoMeinorialA, nnex26,pp.A356-A357. altos^^^ T.he Governor met with ValdezMaltos' defense
attorneysand senior officiaisof the Mexican Govemment,
includingthe Mexican Legal~dviser~~~.Based on areviewof
al1the evidence, including the failureto give ValdezMaltos
consularinformation, the Govemor concluded that clemency
was not warranted. The MexicanMemorial does its best to
portray this decision asutterly capricious and contrary to
incontestablefacts. But the United States emphatically invites
this Court'scarefiil scrutinyof the Governor's letterto the
Presidentof Mexico explaining the basisof his decision to deny
c~emenc~'~~T .hat letter clearly demonstrates that the
Governor'sreview was carefül,probing, and thorough,
includingdiscussions with many interested parties onboth sides
of the issue,fully supportedby the research capabilitiesof his
legal staff,and that the Govemor'sdecision representedwhathe
understood to be the correct outcomebased uponthe factsand
the relevantlaw. In particular, theGovemor's lettermakes
plain that he took account of the violationof Article 36 in
evaluatingValdez Maltos' clemencypetition. Far from being
evidence ofdysfunction, the ValdezMaltos case showsclearly
that the clemency process is ameaningful one that fully
comportswith the reasoning andprinciples that underlay this
Court's judgrnent in LaGrand.
7.32 Moreover, Mexico'sAnnexentirely pretermits the
history ofthe case subsequentto the clemency decision. On 17
August 2001, the Governor issueda second stay of executionin
order to allow Mexico to considerand evaluate"legal and
diplomaticalternatives availableto them and Mr. Valdez
[Maltos]in light of the novel legalissues presented"378.Valdez
375MexicoMernorial, Annex26,pp.A358-A359
376SeeMexicoMernorial, Annex26,p.A359.
377SeeMexicoMernorial, Annex26,pp.A358-A361.
378GovemorofOklahomaExecutive Order2001-28 (17 Aug.2001),Annex
23,Exhibit151.Maltos then filed a second petition forpost-conviction relief in
the Oklahoma courtsraising the VCCRbreach, as well as other
issues. That petitionwas granted, and the Oklahoma Courtof
Criminal Appeals entered an indefinite stayof execution,while
observing that the caseraised a "unique andserious matter
involving novel legalissues and international~aw")'~.
Ultimately the courtfound the VCCRclaim itself untimely, but
it nonetheless vacatedthe capital sentenceand ordered Valdez
Maltosbe given a new sentencing hearing in order to consider
claims of other legaldefects in his case, manyof which
correspond to the defects Mexico asserts resulted frombreaches
of the VCCR~~~.Valdez Maltos, at that new sentencing hearing,
will be able to placein evidence the additional mitigating
evidence that Mexicohas helped develop, andit will be
considered. Viewedthus, in the full lightof its entire history,
ratherthan as truncatedby Mexico in its Memorial and Annex,
the process followedby the courts and the executive branchof
the State of Oklahomaunquestionably was careful, meaningful,
fairand hlly consistentwith the principles setforth by this
Court in LaGrand.
7.33 Consideration of the SuarezMedinaand ValdezMaltos
casesmakes clearthat the posture of the fi@-four cases
involved in this proceeding, and the consequences (if any) ofan
Article 36 breach, arefar more various and complex than
Mexico has acknowledged in its Memorial. In the Suarez
Medinacase, neitherthe defendant nor the Mexican
Government consideredthe VCCR breach tobe of any legal
significance for thirteenyears, and they failed even toraise the
claim as the case wasactively appealed. If either Suarez
379Valdez v. StatOrderStayingExecutionuntilfurtherOrderofthis
Court,No.PCD2001-1011,2001 WL 171585, slipop.at2 (Okla.Crim.
A p.Sept. 10,2001),Annex23, Exhibit152.
See Valdezv.State,46P.3d703, 709-711(Okla.Crim.App.20021,
Annex23, Exhibit58. ValdezMaltos'sentencing hearingis currently
scheduledfor Feb. 2004.Medinaor Mexicothoughtthe defensehad been prejudicedin
anymeaningful wayby the breach of Article 36, they would
haveargued it forcefullyto any court that would listen. But
theydid not. For thirteenyears. Inthe ValdezMaltoscase, the
clemency processprovidedcareful "review and
reconsideration"of the conviction and sentence. In addition,
althoughthe courtdidnot restits opinion on Article36, the
courtwith the supportof the Govemor made sure the points
raisedin the clemencyprocess were fully considered and
addressed in otherwayswith the result that a remedial outcome
- a new sentencinghearing - was ordered. Presumably Valdez
Maltoswill, at thatnew sentencing hearing, put into evidence
the additional mitigatingevidence that Mexico has helped
develop,to bearon the sentencing determination.
7.34 Obviously Mexicowould have preferred that clemency
be granted in bothcases.But considered fairly, Mexicocan
haveno quarrelwiththe outcome in either case. The obligation
sanctionedby LaGrandis review and reconsideration, notthat
theoutcome of a casewill necessarily be reversed. The United
States,through appellatereview and the clemency process,fully
satisfiedits obligationsunderthe principlesof LaGrandinthe
casesof SuarezMedinaand ValdezMaltos. The statementof
the Mexican LegalAdvisernoted abo~e~~r 'egarding Suarez
Medinashould beviewedby this Court as highly probative382.
7.35 As the othercases finish with theirjudicial proceedings,
whatevertheir outcome,clemencyprovides meaningful review
381
See supraatnotes 363and376andaccompanying text.
382See Military andParamilitaryActivities in and against Nicaragua,
(Nicaragua v.UnitedStatesofAmerica), Merits, Judgment,I.C.J. Reports
1986,p.41, para.64("[Sltatement...emanating from high-ranking
officialpoliticalfigures[ofaPartybeforethe Cou...areof particular
probativevaluewhen theyacknowledge factsorconductunfavourabletothe
Staterepresentedbythepersonwhomadethem. They maythenbe
constmedasa formofadmission".).andreconsideration takingintoaccount the breaches ofthe
VCCR. CHAPTERVI11
IF THECOURTFINDS ABREACH OFARTICLE36(1),
IT SHOULDAPPLYTHESAME REMEDYHEREAS IT
ORDEREDINLAGRAND - "REVIEW AND
RECONSIDERATION" - AND SHOULDNOTGRANT
MEXICO'SREQUESTSFOR VACATURE , XCLUSION,
ORDERSOF CESSATIONAND GUARANTEESOF
NON-REPETITION
8.1 The purpose of remedies,as this Courthas repeatedly
stated and recently reaffirmed, isto establish "the situation
which would, in al1probabiliy, have existed if [thewrongful
act] had not been committed"83.In fashioning aremedy for
breach of the VCCR in the LaGrandcase, the Courtdevised a
remedy - review and reconsideration-that satisfiesthe purpose
of reparations and is appropriateboth to the nature of the
obligation allegedly breached bythe United Statesand to the
respective rights and competencesof the United Statesand
Mexico. Mexico would havethis Court set aside itsjudgrnent
in LaGrandand substitutean inappropriate formof restitution
that finds no basis in theVCCRand no antecedentin
international law. Mexico wouldalso have this Courtreverse
its decision that the commitmentto improved compliance
expressedby the United States,coupled with the "review and
reconsideration" remedy, satisfied Germany's demands for
guarantees against repetition. The Court shouldreject Mexico's
proposals in both respects.
383Awest Warrantof 11April2000 (DemocraticRepublicofthe v.ngo
Belgium),Merirs,Judgment,I.C.J.Reports2para76(quoting and
applyinFactoy ut Chonhw Case,Merits,JudgmentNo. 13,1928,P.C.I.J.,
SeriesA, No. p.4:7). A. Mexico's ProposedRestitutionRemedyShould be
Rejected BecauseItAssertsa Form of RestitutionNot
Appropriateto the Circumstancesof IndividualCases
InvolvingBreachesof Article36
8.2 In its Application,Mexicorequests the Courtto declare
"that Mexico is . ..entitled torestitutio in integrum"384.In
Mexico's view, this meansthat "the United Statesmust restore
the status quo ante, that is,reestablishthe situationthat existed
before the detentionof, proceedingsagainst, andconvictions
and sentencesof, Mexico's nationals in violationof the United
States' internationalobligations"385.This requestis further
expounded in Mexico's Memorial,in which Mexicoonce again
reiterates its demand forrestitutio in integrum,which it now
defines somewhat differently as:"an obligationto restore the
status quo ante, that is,reestablishthe situationthat existed at
the time of the detentionandprior to the interrogationof,
proceedings against, andconvictionsand sentencesof,
Mexico's nationalsin violationof the United States'
internationallegal obligations"386.
8.3 Mexico's proposedapplicationof restitutio in integrum
is unprecedentedand far-reachingwhen viewed against the
customary contours ofwhat is inany event an exceptional legal
remedy. Mexicowould havethe Court declarethat the United
States is under the extraordinaryobligation to vacatethe
convictionsand sentencesof al1fi@-four Mexicannationals, to
exclude in any subsequentlegalproceedings any statements or
confessionsobtained pnor to consular notificationand
assistance,to prevent theapplicationof any proceduralpenalty
for a defendant's failuretoraise a known VCCRclaim on a
timely basis, to prevent theapplicationof any lawthat would
384 MexicoApplication,para.281.
385 MexicoApplication,para.281.
386 MexicoMemorial,para.407.bar a United States court from providinga remedy for a VCCR
breach, andto prevent the application ofany law that would
require anindividualized showingofprejudice as a prerequisite
to relief3".
8.4 The Court shouldreject Mexico'smisplaced attemptto
apply a theoretical formof resfitutio in infegrumin a context for
which it is not suited. While theremaybe cases - such asthe
retum of property to its rightful owner - in which it maybe
appropriatefor the Courtto order whatmight be regardedas a
return tothe status quo ar~te'~~ s,ucha concept is not
appropriatein the circumstancesof thiscase. Indeed,the Court
has neverordered any formof restitution nearlyas far-reaching
as that sought by ~exico~'~. Instead, theCourt should adhere
to the formof restitution that it foundto be appropriate in the
-- -
387 See MexicoMemorial,para.407. Mexico's requestis basedon the
notion thatArticle 36 reflectshuman rightsandfundamentaldue process
rights. In Mexico'sview, a breach of Article 36constitutes a"denial of
fundamentalprocedural rights" that renderstheconvictionand sentence
"illegitimate" andeqiiiresvacatur. MexicoMemorial,para. 364. Mexico
does notjusti@ its proposed remedyon anyotherterms. Thus, Mexico's
proposed remedycanriotbe accepted once Mexico's human rights premise is
determinedto be without legalbasis. Seesupraat Chapter VI.D.4.
3s8Only in exceptionaicircumstances - whenthere are certain necessary
consequencesof itsarticulationof the law - willthe Court order a Stateto
take a specificcourse of action.ee,e.g., TheTempleofPreah Vihear,
Merits,Judgment,I.C.J.Reports1962, pp. 36-37(requiringthe retum of the
Templeandany property taken from it). Seethediscussion infraat Chapter
VIII.A.3andaccompanyingfootnotes.
389CJ:UnitedStates Diplomaticand ConsularStaffin Tehran,(United
StatesofAmerica v.Iran),Judgment,I.C.J.Reports1980,pp. 44-45,para.
95(3)(requiringthe irnmediaterelease of the hostages);LaGrand,Judgment,
para. 128(7)(requiringthe UnitedStates"by meansof its own choosing"to
providereview and reconsiderationof a conviction andsentence in the event
of a breachof the VCCR); Arrest Warrantof II April2000 (Democratic
Republic of Congo v.Belgium),Merits,Judgment,I.C.J.Reports 2002,para.
76(requiring Belgium, "by means of its ownchoosing",to cancel thearrest
warrant). Seethe discussioninfraat ChapterVlll.A.3 and accompanying
footnotes.LaGrandcase: that "the United States, by meansof its own
choosing, shall allow the review and reconsiderationof the
conviction and sentence by taking account of theviolation of
the rights set forth in that
1.Review and ReconsiderationSatisJiesthePurpose of
Reparations andStrikestheAppropriate Balanceof the Rights
andlnterests ut Stake
8.5 In the LaGrandcase,the Court imposedon the United
Statesthe requirement that it provide, by meansof its own
choosing, review and reconsideration, takingaccountof the
breach of the VCCR, of convictions and sentencesin cases in
which German nationals havebeen sentencedto severe
penaltieswithout the requirements of Article36(l)(b) having
been respected. The Court'sdecision inLaGrandcreated for
the firsttime a link betweenthe consequences of abreach of a
State'sobligations underthe VCCR and what hadtheretofore
been regarded as the separaterealm of convictionsand
sentencesresulting from theoperation of a State's municipal
criminaljustice systems.
8.6 Theremedy provided by the Court inLaGrandis thus a
far-reaching and unprecedentedone. Its effects reachthe very
heart ofthe State's responsibility to its citizensto maintain
public order. Moreover, by stating the reviewand
reconsideration requirementas a prospective obligation of the
United Stateswith respectto cases in whichabreach of the
VCCR occurred,the Courtdeparted fiom theparticular facts
before it relating to the LaGrandbrothers to create,forthe first
time, a remedy of generaland prospective application.
8.7 The remedy set forthby the Court inLaGrandfully
satisfiesthe purposes forwhich remedies areprovided. It
390LaGrand,Judgment,para.128(7).mandatesthe creation of a process, theprecise form of which is
left to the choice of the particular State,in which a conviction
and sentence canbe fully evaluated in light of any breach of
Article36. As LaGrand makes clear,such a remedy is al1any
Stateis entitled to. By contrast, Mexicowould have the Court
requirethe United States to abandon thedetermination in
LaGrand in favorof imposition ofan across-the-board remedy
that would requireautomatic reversaiof a conviction and
sentence for everycase in which a breachof the VCCR is
alleged.
8.8 While Mexicochallenges the Court's LaGrand remedy
as inadequate, theUnited States insteadregards LaCrand as
itself constitutingthe limit of the remedythat is available to a
State in respectof a breach of the VCCR. The remedy set forth
in LaCrand also, as described below,strikes an appropriate
balance betweenthe rights at stake,taking into account the
procedural natureof the obligations at issue under the VCCR
and the substantiverights of a Statewith respect to the
operation of its municipal criminaljustice systems.
8.9 In the Commentaries to its DraftArticles on State
Responsibility, the InternationalLaw Commission expressly
addressed the applicationof restitution in the circumstances at
issue in this case. The Commentary states:
The primary obligation breachedmay also play
an importantrole with respectto the form and
extent of reparation. In particulain cases of
restitution not involving thereturn ofpersons,
propers or territory of the injuredState,the
notion ofreverting to thestatus quo ante has to
be appliedhaving regard to the respective rights
and competences of the States concerned. This
may be the case, for example,where what is
involved is a procedural obligationconditioning the exercise ofthe substantivepowersof a State.
Restitution in such cases should notgivethe
injured Statemore than itwould have been
entitled to if the obligation had been
performed.39'
The Commentarythen continues in a footnote:
Thus in the LaGrandcase, the Court indicated
that a breachof the notification requirement in
art. 36 of the Vienna Conventionon Consular
Relations ... leading toa severepenaltyor
prolonged detention, would require
reconsiderationof the fairnessof the conviction
"by taking accountof the violation ofthe rights
set forth in the Convention". ... Thiswould be
a form of restitution which tookinto accountthe
391 IntemationalLaw Commission, Commentaries tothedrap articles on
Responsibilityof Statesfor internationallyongfulacts,jifty-third session,
2001, SupplementNo. 10(A/56/10),art. 34,p. 236,para. 3 (emphasis
added)(hereinafter,this document will be referredto as the
"Commentaries"), Annex 23, Exhibit 153;see also Report of the
InternationalLaw Commissionon theworkof ifsforty--$h Session, Dra$
articles ofpart two of thedru$ on State responsibildocumentAi48110 in
1993Yearbookof the InternationalCommission,Vol. II,document
AiCN.4/SER.A/l993/Add.l (Part 2), p. 63,para. 3, Annex23, Exhibit 154
("[Ilt wouldbe theoreticallyand practically inaccurateto define restitution in
kindas the unconditionallyor invariablyideal or mostsuitableform of
reparationto be resortedto in anycase andunderanycircumstances. The
most suitableremedy can onlybe determinedin eachinstancewith a view to
achievingthe most complete possible satisfactionof theinjured State's
interes...in full respect, of course,of the rightsof theauthor State."); Ian
Brownlie, Principles of Public International Lap. 465 (1998),Annex 23,
Exhibit 155("ln many situationsit is clear that a remedywhich
accommodatesthe intemal competenceof govemments,while givingredress
to those adverselyaffected, is to be preferred."). limited characterof the rights in issue.392
As the InternationalLaw Commission agreed, reviewand
reconsideration is the appropriate remedyinVCCRcases given
the respectivenaturesof the rights and interests atissue: in this
case, the interestof the United Statesin the fair,expeditious and
orderly administrationofjustice; and the interestof Mexico in
the performanceof'consularinformationandnotification.
8.10 The UnitedStates, likeal1States,hasa significant and
abiding interest inthe operation of its criminaljustice systems
in ways that respectdue process, exoneratethe innocent,
convict and punishthe guilty, deter the wicked,and award
justice to the victim. The prompt and thoroughinvestigation of
crimes is the foundationof the system'seffectiveness,and
fairness is its touchstone. Mexico's proposed remedy would
inappropriatelyput this system into abeyance. The system
would have to be halted while waiting for adetainedperson to
decide whetherto ask for consular assistance and, ifhe or she
does ask for it, toawait further while the consularofficer
decides whether and how to respond, ifat a11~~~.
8.11 States likewisehave an interest in swiftandpublic
justice that minimizesthe burdenof new trialsor sentencing
hearings longafterthe event - a fact that Mexico unfairly
trivializes when it asserts thavacatur of convictions and
exclusion of evidence "wouldimposeno burden hereat
In fact, the retrialsof cases- where not renderedimpossible due
to the passageof time, the fadingof memories, thedecay of
392See commenta rie:^upra note391atart.34,p.236,para.3 n.518,
Annex 23,Exhibit153.
393Mexicoapparentba yrguesthatareceivingStatemay notinterrogate a
detaineewhorequestsconsular notificatiuntilaftertheconsularofficer
hasamvedsoastositinonthe questioning. SeeMexico Memorialp ,ara.
321. TheVCCRconitains no supportforsucha reading.
394MexicoMemorial,para.389.physical evidence andthe expiry ofwitnesses - is difficult and
e~~ensive~~~ N.ew trials arenot undertaken lightly,and
certainly noton account of errorsthat ultimately had no bearing
onthe fùndamental fairness of the trial. They are tremendously
traumaticto the victims and their families,who are compelled
to relivethe horrors of the crimes committed and to wony that
those responsiblemight go free. Theyseverely disturbthe
community'sinterest in lawand order, in the punishmentof the
guilty, and in a sense of finality.
8.12 Moreover,the exclusion of reliable and probative
evidence imposes a high societal cost, risking the acquitta1of a
guilty person, which would leave a serious crime unpunished,
the rights of the victims unvindicated,and a dangerouscriminal
at large396.Yet these significant substantive interestswould be
395 It bears remindingthat trials in the United States require livetestimony
by in-court witnesseswho are subjectto sometimesintense cross-
examinationand whose credibility is assessedby thejury. Becauseof the
nature of the layjury system andthe constitutionalrights of confrontation,a
retrial isa significantevent that imposesa substantial burden onarties.
'% Frequently,the most reliable and probativeevidence at a criminaltrial
will be the defendant'svoluntary statement. To deny the prosecutionthe
abilityto introducea confession that isnot coerced, that is supportedby
sufficientdetail to permit confidence in itstruthfulness, that is takenin a
manner that guaranteesits voluntariness, andthat meets other UnitedStates
constitutionalstandards,woulddeprive the fact-finder of importantevidence
ofguilt. Moreover,a suspect's statementmay be more thanjust apersonal
admission:it may provide additional evidentiaryleads that enablethe
authoritiesto locate therpses of missingvictims (as in #38 Medellin
Rojas,#39 Moreno Ramos,#41 Ramirez Cardenas, #47 Perez Gutierrez,and
#54 ReyesCarrerra) or the murder weapon(as in #39 Moreno Ramos). A
suspect'sstatementalso may identi@accomplicesor witnesses and it can
supplydetails that enable the authorities to findadditional probativeand
corroboratingevidence. Mexico's proposed rule would excludeal1of this
denvative evidence,placing a significantadditional burdenon the criminal
justice system. An exclusionary rule alsoexacts a uniquely highprice in the
United Statesjustice systembecause, unlike in most States, the government
cannotappeal an acquittal, even if basedon aegal mistake by the fact
finder.overriddenby the remedy Mexicoproposes.
8.13 In addition, the remedyMexicoproposes would ensure
that foreignnationülsreceiveboth differentandbetter
treatment, subject to differingrulesof criminalprocedure,
beforethe courts of the receiving Statethan dothat State'sown
citi~ens'~'.Thiswas not what the drafters intended whenthey
wrote Article 36.
8.14 Finally, the United States,likeal1States, has an abiding
interest in the protection of its sovereigntyand the sovereignty
of the fi% states that compriseit. Amongst themost solemn
and important aspects of sovereigntyis punishment of
individuals for violationsof law. The intrusiveremedies that
Mexico seeks would sh-ikeatthe very heartof this sovereignty
and, for this reason alone, cannotbe countenanced. It isin
recognitionof this important - indeed,in the international
arena,unrivaled - interest, that this Court adoptedthe narrowly
tailored remedy that"the United Statesof America, by meansof
its ownchoosing, shall allow the review andreconsideration of
,1398
the conviction and sentence .. . .
8.15 Balanced againstthese considerationsare,the United
States recognizes, the importantprotectionsof Article36.
397 Article 5(a)of the VCCR statesthat consularfunctionsconsist in
"protecting in the receiving Statethe interests ofthe sending State andof its
nationals..within the limitspermittedby internationallaw". International
lawdoes not establish national treatmentasthe standardof protection.
Whileinternationallaw permits a State to grant nationalor most favored
nationtreatmentto foreignnationals, the VCCRrovidesfor neither. While
bilateral consularconventionsmay provideenhancedconsular protectionfor
dual nationals,as a numberof protocols toconsulartreaties between the
United Statesand Eastern Europeanountriesdidduringthe Cold War,there
is no consulartreaty between the UnitedStatesand anyother countrythat
would givealiens greater rightsn UnitedStatesnationals in criminal
cases. Seesupranote:330.
398LaGrand,Judgment,para. 125(7)(emphasisadded).Informingand notifiing aremeans to an end - allowing the
consularofficer to provideassistance if requestedand if the
consularofficer elects to doso. The fact thatMexico has
elected to give extraordinaryassistance to itsnationals in capital
cases - and the United Statesin no way questionsthis obvious
fact - is salutary but doesnot alter the limitednatureof the
provisions at issue.
8.16 Article 36 requirementsare procedural,not substantive,
andthey have no necessaryimplications for fundamentaldue
process399.Notification merely informs the consularofficer of
the detention; it triggers noobligation to assistand no standards
for appropriate assistance. Sending States, infact,provide
wildly varying levels of assistance, if any. Evenwhen he or she
offers assistance, the roleof the consular officeris inpractice
often limited by the receivingState. Consularofficers typically
cannotact as attorneys, and States impose a widevariety of
limitationson consularvisits. They do not havean unrestricted
right of access to detainees,and in some Statesmay not be
allowedto meet privatelyor to discuss a casewith a detainee.
StatesParties to the VCCR(and al1other States)accordingly
must be prepared and ableto conduct criminalproceedings -
and to guarantee fair trials - independent of consularassistance.
Article 36's effect, therefore,is in no way determinativeof the
fairnessof criminal trials for foreign nationals.
8.17 Mexico's proposedremedy fails to takeinto
considerationthe wrongfulact alleged and the important State
interestsimpinged by itsproposed remedy. By contrast, the
Court appropriately balancedthe nature oftheprimary
obligation at issue and thesignificant State interestsat stake
when it settled upon reviewand reconsideration as the
appropriateremedy inLaGrand.
399SeeWeigend Declarationp ,ara36, Annex 3. 2.Mexico's ProposedRemedyIsInconsistent withthe
Requirement ofa (3ausalLinkBetweenanyBreachProvenand
theHarmResulting
8.18 No reliefwould be appropriatein any case in whichthe
same legaloutcome actuallyreachedwould have resulted
absentthe breach400.In such cases,as the International Law
Commission's SpecialRapporteuron State Responsibility,
ProfessorCrawford, hasexplained,"the notion of a general
return to the earlier.situation may be excl~ded"~~'.Indeed,he
has aptly obsewed that, in the particularcontext of cases
involvingcapital sentenceswhere therewas a breach of the
VCCR:
[Tlhe relationshipbetweenthebreach of the
obligationof consular notificationand the
400See InternationalLaw Commission,Dra) articleson Responsibiliq of
Statesfor intemationallywrongfulacts adoptedby theIntemationalLaw
Commission ut its 53rdsession,SupplementNo. 10(A/56/10), 2001,Nov.,
SupplementNo. 10(A/56/10),art. 31(1),Annex23, Exhibit 65, ("The
responsible States under an obligationto make full reparation for theinjuly
causedby the intemationallywrongful act." (emphasis added)). Seealso
Commentaries,supra note391at art. 31,p. 227,para. 9 ('the subjectmatter
of reparationis, globally,the injury resulting froman ascribable to the
wrongful act, rather than any and al1consequencesflowing from an
internationallywrongful act").
40' International Law Commission, ThirdReporton StateResponsibilityby
Mr.James Crawford,SpecialRapporteur,Addendum,document
A/CN.4/507/Add.1, 15June 2001, para. 142(emphasis in original),Annex
23,Exhibit 156;see abo ChristianJ.Tams, "Consular Assistance and Rights
and Remedies: Commentson the ICJ's Judgmentin the LaGrandCase" in
EuropeanJournaloflntemational Law, Vol. 13,No. 5,2002, Nov., n.74
and accompanyingtext availableuthttp://www.ejil.oupjoumals.org, Annex
23,Exhibit 157("[Ilt wouldhave gone too farhad the Court [inLaGrand]
found that al1judgments impairedby the failureto notify the defe...nt
per se had to be reversed, irrespectiveof whetherthe absence of consular
assistancehad actuall:yhad a negative impact on the defence of the
foreigner".). conviction of the accusedperson was indirect
and contingent. It couldwell have beenthe case
that the subsequent trial was entirelyproper and
fair and the failureof notificationhad no effect
on the conviction. ... Only if a sufficientcausal
connection could be establishedbetweenthe
United States' failureto notifi andthe outcome
of the trial could the question of restitutionarise
at a1L402
8.19 As President Shi statedinhis SeparateOpinion in
LaGrand,the review and reconsiderationremedyallows
measuresto be taken only "to prevent injusticeor an error in
conviction or ~entencin~'~'~.The determinationwhether the
breach warrants changingthe conviction orsentencedepends
critically onthe facts of eachparticular case, theapplication of
relevantmunicipal law, andother factors.
3.Review and Reconsiderationis Consistentwiththis Court's
Conceptionof its OwnRoleand theDecisionsof Other
InternationalCourtsand Tribunals
8.20 A division of competencescharacterizesadjudication
before the Court. It fallsto theCourt to resolveparticular cases.
In the event the Court determinesthata party'sact was
402 International Law Commission,ThirdReportonStateResponsibilityby
Mr. JamesCrawford,Special Rapporteur,Addendum,document
AICN.4/507/Add. 1,15 June2001,para. 141,Annex 23,Exhibit 156;accord
JamesCrawford "Revisingthe DraftArticleson State Responsibility",in
European Journal of International LaV,ol. 10,No.2, 1999,p. 446,Annex
23,Exhibit 158("For the issue ofrestitutioneven toanse in Breard it would
havebeen necessaryto show that the proceduralfailurehaddirect
consequencesin terms of theverdictand sentence.") Asthe UnitedStates
has madeclear in ChapterV1I.D-E,supra,Mexicohasfailedto showthat
the outcorneof any of the casesinwhichtheremay havebeen a breach was
actuallyaffectedbysucha breach ofArticle 36.
'O3 LaGrand,Judgment,para. 17(SeparateOpinion ofVice-PresidentShi).unlawful andrequires a remedy, it then fallsto thatparty to
implement the Court'sdecision in the contextof itsown
system. In many cases,there will be multipleways inwhich
parties could appropriately give effectto theCourt's decision.
In such circumstances,the Court has consistentlydeclined to
require a particularmeans of compliance. Asthe Court held in
the Haya de la Torrecase, the various choicesregardingthe
means of implementingthe Court's decision"are conditioned
by facts and by possibilities which, toa very largeextent,the
Parties aloneare in a position to appreciate. A choiceamongst
them could not be based on legalconsiderations,butonly on
considerations of practicability or of politicalexpediency;it is
not part ofthe Court'sjudicial functionto makesuch a
ch~ice"~~~T . his division of competencesreflectsthe
understanding that States, as sovereigns,havethe rightto
conduct their interna1affairs as they choose,providedthey
comply with the law.
8.21 For the samereasons, the Courthas only rarelyordered
Statesto take specïficactions and has nevermadeorders as
broad asthose Mexicorequests here. In this regard,it bears
recalling that the IJnited States specifically sought,in its
Application and iriits Submission in the TehranHostages case,
an order fromthis Court directing Iran tosubmitto its
authorities forprosecutionunder municipallawor to extradite
to the United Statesthe persons responsiblefor the breachof the
VCCR~'~.Yet, this Court denied this requestwithout
- -
404Hayade la Torre,Judgment,I.C.J.Reports 1951, p.79;see also
Northern Cameroons,PreliminaryObjections.Judgment,I.C.J.Reports
1963, p.37 ("Asthe CourstaidintheHayade la Torrecase,itcannot
concemitselfwiththechoice among variouspracticalsteps whicha State
maytaketo complywith ajudgment.").
405See UnitedStatesDiplomaticand ConsularStaflin Tehran,Judgment,
I.C.J. Report1980,p. 7,para.8.comment406,evidentlybecause it didnot consider its functions
to includewhat would have amountedto dictating to a State and
its courtswhether and how to conduct criminal proceedings.
Even in those few cases inwhich the Court did effectively
direct a Stateto take a particular action, it did not specifythe
means by which the State was to implement thejudgment407.
8.22 The Court issues its judgrnents on the assumptionthat
Stateswill comply with thesejudgrnents ingood faith. As
ProfessorRosennehas explained, that principle affords"the
decision-makingauthoritiesa fair degree of fi-eedomof action
in interpretingand applyingthe termsof the treaty-obligationin
a concrete case'408.
8.23 The approach reflected in the principles discussedabove
stems from the Court's abidingrespect for the sovereignrightof
Statesto decide the specific means by which to complywith
their international legal obligations,once they have been
determined. The orders Mexico requestswould be entirelyat
odds with this approachand would represent anunjustified,
406 See UnitedStates Diplornaticand ConsularStaffin Tehran,Judgment,
I.C.J.Reports 1980,pp. 43-44, para. 92 andpp. 44-45, para. 95.
407 See Temple ofPreah Vihear,Merits,Judgrnent,I.C.J. Reports 1962,pp.
36-37; UnitedStates DiplornaticandConsularStaffin Tehran,Judgrnent,
I.C.J.Reports 1980, pp. 44-45, para. 95. Thisapproach enables the Court to
avoid issuingorders that are so specific as to be highly onerous for a Stateto
enforce in its municipal legal system, where itsauthonties may face
separationof powers,judicial independence,or other constitutional
constraints.degree of flexibility in the implementation of ajudgment
avoidsforcingStatesinto a destructive choicebetween adherence to their
municipal constraints,which areften of a constitutionalcharacter, and
respect for their internationalobligations. It serves to improve compliance
with theCourt'sorders.
408Shabtai Rosenne,Developrnentsinthe Lawof Treaties1945-1986,pp.
176-177(1989),Annex 23, Exhibit 159;accordBin Cheng, General
Principlesof Lawas Applied by InternationalCourtsand Tribunals,p. 136
(1953),Annex 23, Exhibit 103(it follows"from the general presumptionof
goodfaith that abusesof right cannotbe presumed").unwise, andultimatelyunacceptableintrusioninto the United
Statescriminaljustice system. The Court's jurisprudence in
thisarea is consistent with thejurisprudence of other courts and
tribunals409.Such deferenceto a State'sinterna1mechanisms is
especiallyimportant in the context of municipaljudicial
proceedings,where the considerations of sovereignty are
buttressedby principlesofjudicial independence. So, while an
internationaltribunal may have the competenceto determine
thata municipaljudicial proceeding has breached international
law(whichwould implicatethe international responsibility of
the State), itwill abstain fiom the annulmentof ajudicial
decision(which would implicate a State'sdomestic legal
capabilities)in order to allow the State to choose the
appropriatemeans to vindicate the Court'sholding4''.
8.24 Citingdecisions of the Inter-AmericanCourt of Human
Rightsand the Martini case, Mexico has argued that "[ilt is
well-establishedthat the restoration of the status quo ante may
409
Even theInter-American Courtof HumanRights,which has an unusually
broadremedial authorityunderArticle 63(1)of the American Convention on
HumanRights, see Dinah Shelton,Remedies inInternationalHumanRights
Law, pp. 172,295 (1999), Annex23, Exhibit 160,has recognized that "the
ruleof in integrumrestitutrefers to one wayinwhich the effect of an
internationalunlawful amay be redressed, but itis not the only way in
whichitmust beredressed, forin certain casessuchreparation may not be
possible,sufficientor appropriate". Court H.R.,Aloeboetoe et al. Case.
Reparations (Art63(1)of theAmerican Conventionon HumanRights),
Judgmentof Sept. 10. 1993. Series C No. 15,para.49 (emphasis in the
410ginal), Annex23, Exhibit 161.
See Dlfference Relating toImmuniîyfrom LegalProcess of a Special
Rapporteur of the CommissiononHumanRights,Advisory Opinion, I.C.J.
Reports 1999,p. 90, para. 67(4)("[Tlhe Governmentof Malaysia has the
obligationto commuriicatethis Advisory Opinion to theMalaysian courts,in
orderthat Malaysia's international obligationsbe giveneffect and [the
SpecialRapporteur'slJimmunitybe respected."). Thus, this Court lefi it to
theGovernmentof Malaysiaand its courts to determinethe appropriate
meansto giveeffect i:othe Court's holding.consist of the vacatur of ajudicial de~ision"~". Such an
assertionoverstatesthe case. As alreadynoted412t,he Arnencan
Conventionon HumanRights provides remedieswell in excess
of generalinternationaliaw4I3,and so thedecisionsof the Inter-
Amencan Court, even in a case related tothe subjectmatter of
this case,do not enlighten the generalrule. Nor did the Martini
case itsel?I4, the only decision cited by commentatorsto
supportthis proposition, require eithertherestorationof the
status quoante or the vacatingof ajudicial decision. There the
Tribunal found that thedecision of the FederalCourtof
Cassation,which requiredthe MartiniCompany to paythe
Govemment of Venezuelacertain amountsforthe violation of a
concession contract,was a "manifest injustice". Though the
Company nevermade the payment, the "obligations[continued
to] exist[] inlaw", and, therefore, they hadto be "annulled"
since "an illegalact hasbeen committed ... [and]the
consequencesof the illegalact must be effacedW4l5.
Consequently,the Tribunal decided, "the Venemelan
Govemment is bound to recognize, as a rightof reparation, the
annulmentof the obligationsof payment imposedupon the
4'1 See MexicoMemorial,para.365. See generally iatparas.364-373.
Mexico alsocitesthewritingsof ProfessorJohnQuigley,MexicoMemonal,
para.372, who"hasbeen counsel to the Governmeno tfMexicoin itsroleas
amicuscuriae inU.S.courtcaseson consularaccess"J . ohnQuigley,
"LaGrand: A Challengeto theU.S.Judiciary"i,n YaleJournalof
InternationalLaw, Vol.27,No. 2,2002, p.435n.23,Annex23, Exhibit162.
412 See supranote409.
413 AmericanConventiononHumanRights,22Nov. 1969,arts.10,25,63,
O.A.S.TreatySeriesNo. 36,at 1, 1144U.N.T.S.123, Annex23, Exhibit
107.
414
AJSaireMartini (Italy v. Venezuel2R.I.A.A.976,1930, Amex 23,
Exhibit163.
415 "Judicial ecisions",inAmerican JournalofInternationalLaw, Vol. 25,
No. 3, 1931,July,pp.584-85(providinganEnglishtranslationof thearbitral
awardinthe Martini case), Annex23, Exhibit164;AfSaireMartini (Italy v.
Venezuela),2R.I.A.A.976,1930,p. 1002,Annex23,Exhibit163 (« unacte
illicite a étécommis. [et/ les conséquencesdel'acte illicite doivent être
eflacéeH.).Martini ~orn~an~~""~N . otably, the Tribunal did not require
Venezuela to vacatethejudicial decision, but ratherto annul,by
means of its own choosing,the underlying legalobligations
owed the Govemment by the Martini Companyby virtue of the
decision4I7.
8.25 Mexico's remedy, onthe other hand, asksthe Court to
directthe United Statesto take specific action,action that
necessarily in volve:^the legislaturesof the fi@ statesand/orthe
United States Congress. Sucha remedy underthese
circumstances is unprecedentedand should be rejected out of
hand. The few cases grantingsuch remedies havedone so only
wherethe compromis or treatyexplicitly conferredsuch
jurisdiction on the That is not the case here.
4'6 "Judicial Decision!<',inAmerican JournalofInternationalLaw, Vol. 25,
No.3, 1931, July, pp. 585(providingan English translationof the arbitral
awardin the Martinicase), Annex 23,Exhibit 164;Afaire Martini(Italyv.
Venezuela),2 R.I.A.A.976, 1930p. 1002,Annex 23,Exhibit 163 («le
Gouvernement Vénéziuélie ent tenude reconnaîtrà,titrede réparation,
l'annulationdes obligationsde paiement,imposéesàla MaisonMartini)).)
417 To accomplish thisobjective,the Governmentof Venezuelaneed not
havegone into court cmhave declaredthe decision invalid. There is no
indicationthat thecrvernmentdid so or that this is what theTribunal
envisioned. Indeed,sincethe debt was owedto the Government,it could
have issued astateme,ntor edict (or could have asked theVenezuelan
legislatureto pass a laiw)renouncingthe debt. Thoughnotrefemng to the
Martinicase, ProfessorChristianTomuschatrecognized thisdistinctionin
thediscussion of restitutioninthe lnternational LawCommission. Henoted
that"[iln the case of ajudgment inconsistentwith international law,the State
concerned could be uinderan obligationtonforce the international
obligation,but it mightnot be duty boundto set asidethejudgment itself'.
1989Yearbook of the:InternationalLawCommission,Vol.1,Summary
recordsof the meetingsof the forty-firstsession,document
A/CN.4/SER.A/1989(2104thMeeting, 18May 1989),pp. 54,para. 15,
Annex23, Exhibit 165.
4'8See Martin Menn'ecke & ChristianTams, "The RighttoConsular
Assistance under InternationalLaw:TheLaGrandCaseBeforethe
International Court of Justice", in 1999anYearbookofInternational
Law, Vol. 42, 2000,p.233 n.189, Annex23, Exhibit 166(citing Helmut8.26 In keeping with the practice of internationalcourts and
tribunals,the Court's review and reconsiderationremedy
recognizesits own proper role, allowing theUnited Statesto
implementthe Court's decision "by means of its own
choosing". In this way, the Court does not act as a court of
criminalappeals and avoidsthe unprecedented step of requiring
thevacating ofjudicial decisionsof municipalcourts.
4.Thereis NoLegal Basisfor the Automatic andCategorical
ExclusionaryRuleMexicoHusDemanded
8.27 Just as it would be unprecedented for the Courtto order
the vacaturof the convictions and sentences at issue in this
case,so too it would be unprecedented (and without legal
foundation)for this Court to decide that United States
municipalcourts should exclude from evidence"in any
subsequentcriminal proceedingsagainst the [Mexican]
nationals,statements and confessions obtainedprior to
notificationto the national of his right to consular
as~istance"~'~.Such an order would amount tojudicial
legislation,completely at odds with fundamentalnotions of
Statesovereignty andjudicial independence. It would have no
basis in customary international law and no supportwhatsoever
inthe text of the VCCR.
8.28 Mexico asserts that the exclusionary rule is a general
pnnciple of law, since it "applies in both commonlaw and civil
lawjurisdictions and requiresthe exclusion of evidence that is
obtainedin a manner that violates due processobligations'420.
Urbanek,"Die Unrechtsfolgen beeiinemvolkerrechtsverletzendnrteil:
Seine BehandlungdurchinternationalGerichte",1 Osterreichische
ZeitschriftjürOfentliches Recht70,91-117 (1)).
419MexicoMemonal,para.374.
420MexicoMemonal,para.375.Mexico contendson this basis that the Court should order the
exclusionof al1statements andconfessions madeby the
defendantsto officiaispnor to beingprovided with consular
inf~rrnation~~'M . exico has overstatedthe pervasivenessof the
exclusionaryrule in legal systemsthroughout the world, has not
taken into accountits varying fonns, and ignoresthe fact that it
has neverbeenusetito mandate exclusion of statementsmade
by a defendantprior to receivingconsular information, as
Mexicodemands.
8.29 Whileit is true that somelegal systems have begun, in
the last twenty-five:years, to use exclusionary rules in different
ways and forvaryiingpurposes,the practice is not by any means
widespreador consistent enoughto be considered a "general
principle of ~aw"~~:' A.s recentlyas the 1970s,the automatic
exclusionaryrule adopted by the United States SupremeCourt
was seen as a "peculiarity"423.Other forrns of anexclusionary
rule have sinceber:nadopted inotherjurisdictions. Buteven
consideringthe vairyingfonns of exclusion collectively,
exclusioncertainlydoes not constitutethe majority position424.
421 MexicoMemorial,para. 380.
422 See WeingendDeclaration,paras. 10-11,Annex 3.
423John H. Langbein,ComparativeCriminalProcedure:Germany,p. 69
(1977),Annex23,Exlnibit167("The constitutionalexclusionaryrules are
forthe most partan Amencan peculiarity. Illegally obtainedevidence is
generallyadmittednotonly in Germanyand other continentalsystems,but
alsoinEnglandandthe CommonwealthSystems."). ProfessorDamaSka
confirmsthat"[olnly a small number of continental countrieshave adopted
express legislativeprovisionsectingillegally obtainedtestimonyof the
defendant."MirjanDamaSka,"EvidentiaryBamers to Convictionand Two
Modelsof CriminalProcedure:A Comparative Study", in Universi(vof
PennsylvaniaLaw Review,Vol. 121, 1973,p. 522 (1973),Annex 23,Exhibit
168. He concludedthatthe extremereluctance of civil law systemsto adopt
exclusionaryrulesstemmed "largely on their fears that 'obviously'guilty
defendantsmay finall,yhave to be acquitted. This to them would appear
intolerable".d.at524.
424See Hans Lensing,"General Comments", inCriminalProcedure:A
WorldwideStudy,p. 428 (Craig M.Bradleyed., 1999),Annex 23,ExhibitAsProfessor Weigendexplains,"Exclusionofevidence as a
sanctionfor employing illegal meansinobtainingit has some
appealfor legal systems adheringto the adversarymodeof
adjudicating cases'425.In legalsystemsusing the
"inquisitoria1"modeforfact-finding,however,"it is thecourt's
responsibility tofindthe truthregardlessofthe activityor
passivity of the prosecutionanddefen~e'~~~ I.nsuchsystems,
deprivingthe court of relevantinformationbyexcluding
evidence"makes little~ense"~~'T . hemajorityof legal s stems
'JS
"do not recognizea strict'automatic'exclusionaryrule .
Rather,they "tendto generallyadmitrelevant evidenceevenif
itwas obtained inviolationof a legal rule,butexcludeevidence
which is eitherinherently unreliable ... or undesirab~e'"~~.
8.30 Furthermore, thepurposesof theserulesdiffer. Inthe
United States,theexclusionaryprinciple isinlarge part viewed
as a prophylactic judicialremedy designedto deter
Constitutionalviolations430.Exclusionaryruleswill serveother
170(noting that the "U.S. systemseems the most rigidsysteminas faras
unlawfùlly obtainedevidence mustbe excluded.... Inother systems, the
courthas some discretionwhether ornot to admitillegally obtained
evidence, dependingon the rulesviolated(France,Germany)or on
considerations of faimess andntegrity(Canada,EnglandandWales, South
Africa)"); WeigendDeclaration,para. 16,Annex3 ("Turningto the general
concept of excludingillegallyobtainedevidence,Mexicoagainclaims
universal recognitionfor whatis in effect a minorityposition".).
425 Weigend Declaration,para. 16,Annex3.
426Weigend Declaration,para. 16,Annex3.
427Weigend Declaration,para. 16,Annex 3.
428Weigend Declaration,para. 17,Annex 3.
429ASProfessor Weigendexplains,thereis alsothe concept of
"nullification", whichovidesfor the exclusionofevidence,but is usually
"limited to procedural faultsespecially designatedbyteas leadingto
nullification, violationsofamentalrights,andlorviolations causing
prejudice to a party". WeigendDeclaration,para. 15(footnotesomitted),
Annex 3.
430UnitedStates v.Leon,468U.S. 897,906 (1984),Annex23,Exhibit171.
The Declaration of AssistantAttorneyGeneralChristopherA. Wrayexplainspurposes in other criminal courts. The International Criminal
Tribunal forthe Former Yugoslaviaand the International
Criminal Court, for example, excludeevidence"obtained by
methods which cast substantial doubt on its reliability or if its
admission isantithetical to, andwould seriouslydamage,the
integrityof the proceedings"43'. Statements made without
consular information "would undoubtedlybe admitted" under
this standard432.
8.3 1 Mexicohas failed to pointto evena single instancein
the operationof the exclusionary rule in United Statescourts. SeeCriminal
Justice Declaration,paras. 16-19,Annex7. The rule exacts high societal
costs, as it may preclude thejury's hearing andaking into account highly
relevantand reliable evidence of criminality. Becausean "unbending
applicationof the exclusionary sanction toenforce ideals of governmental
rectitudewould impecïeunacceptably thetmth-finding function ofjudge and
jury", UnitedStates v.Payner, 447 U.S.727, 734(1980),Annex 23,Exhibit
172,the SupremeCourt has "restricted"applicationof the exclusionaryrule
"to thoseareas where its remedial objectivesare mostefficaciously served".
Id. (citationsomitted). Mexico disregardsthe fact that the essential
touchstoneof the United States exclusionaryrule is the commissionof a
constitutionalviolation. Absent a constitutional violationor an express
statutoryrequirement of exclusion,the courtsdo notexclude evidenceto
deter violationsof statutes, proceduralrules, or regulations. See United
Statesv.Caceres, 44CiU.S. 741,754-755 (1979), Annex23, Exhibit 173.
Becausetreatiesare regarded asthe equivalentof a federalstatute (seeReid
v. Covert,354 U.S. 1, 18(1957) (pluralityopinion),Annex 23, Exhibit 174),
andbecauseArticle 36 does notexpresslymandatethe exclusion of evidence
for the violationof the obligations imposes,United States courtshave
consistentlyrefused to require the suppression ofstatementsmade by
detainedforeign nationals prior to theirreceipt of informationconceming
consularnotification.See supraat note 286 andaccompanyingtext.
43'InternationalTribunal for the Prosecution of Persons Responsiblefor
SeriousViolationsof Humanitarian LawCommittedin the Temtory ofthe
FormerYugoslavia sïnce 1991,Rulesof Procedureand Evidence, rule95;
Rome Statuteof the International CriminalCourt, article 69(7) (furtherlimits
inadmissibilityto violation of the Rome Statuteor of"internationally
recognizedhuman rights").
432WeigendDeclaration, para. 18,Annex3.which anynational court or any national legislaturehas
concludedthatthe automatic exclusion of al1statements and
confessionsmade by an accusedto the authoritiesprier to
receiptof consular informationis an appropriate remedy for a
breachof Article 36, whateverthe purpose of their rule. Not
one. In fact,the only area of consensus amongthe limited
numberof Statesthat have adopted an exclusionary rule is in
applyingthe rule as a remedyfor involuntary confessions433,
which cannotbe equated to a breach of Article36. Clearly
Statepracticedoes not indicatethe emergence ofnew
customaryinternational law,contrary to Mexico'sassertion434.
8.32 Cases fromthe courtsof otherjurisdictions cited by
Mexicodo not, in fact, supportMexico's a~le~ations~~~ In.
Canada,in a case precisely on point, a trialjudge admitted
statementsmadeby the accused - even thoughthe police failed
to givehim consular information - because the accused could
not prove thathis "trial wouldbe unfair if the .. .utterances ...
were admissible"436.In Germany"courts tendto admit
evidenceobtained throughillegal se arche^" a^d^'in point of
433
CraigM.Bradley,"MappGoesAbroad", in Case WesternReserveLaw
Review,Vol.52, 2001,p. 376 (2001),Annex 23,Exhibit 179("On one point,
al1countriesarein agreement,at leastin theory: involuntaryconfessions
mustbe excluded. Beyondthat,...while evidentiaryexclusiondue to
policemisconductfrequentlyoccurs,therationales andthe rigor of
exclusionarypracticesrygreatly".)
434WeigendDeclaration,paras. 5-21,36, Annex 3;StatePractice
Declaration,para. 41, Annex 4.
435See,e.g.,J.R. Spencer,"Evidence", inEuropeanCriminalProcedures,
pp. 602-610(M. Delmas-Marty & J.R Spencer eds.,2002),Annex 23,
Exhibit 180.
436R.V.Partak,[20011160C.C.C.(3d)553, 570, Annex23, Exhibit 127.
437Thomas Weigend,"Criminal Procedures: ComparativeAspects", in
Encyclopedia ofCrimeandJustice,Vol. 1,p. 447 (J. Dressler ed.,2002),
Annex23,Exhibit 169;see also CraigM. Bradley,"TheExclusionaryRule
in Germany"in HarvardLawReview,Vol. 96, No. 5, 1983,Mar., p. 1064,
Annex23, Exhibit 181("The Germanrule, for example,is lessstringentthan
the Americanmle in excludingevidencederived fromimpropersearchesoffact "[tlhere is no generalexclusionary rulethat would make
illegallyobtained evidence inadmis~ible"~~~.
8.33 In particular, Mexico'semphasis on its own newly
adopted exclusionaryruleis highly misleading in this regard439.
Mexicancourts have upheldthe introductionof coercedU0or
othenvise compromised confession ^espi'ethe advent of
certainconstitutionalguarantees. Moreover,the significanceof
the rule as articulatedby Mexico is grosslyoverblown since
there are numerous instancesin which exclusionary protections
are utterly lacking iinMexico. In particular, one notes the total
absence of reportedcasesthatwould automaticallybar evidence
obtainedvia arbitrarydetenti~n~~* and, more relevant to this
case, that would automaticallyexclude evidenceobtained
against a non-Mexwcan defendantwhere his or her consulate
was not notified pursuantto I~w~~~ T.he meager protection
offeredby Mexico'sruleflatlyunderminesits effort to equatea
general exclusionary principlewith common State practice.
the home, and thefailureto giveMiranda-typewarningsto suspects
generallywill not resultinexclusionin Germany.").
438 Thomas Weigend,"Germany",in CriminalProcedure:A WorIdwide
Study,p. 195(CraigNI.Bradley ed.,1999),Annex 23,Exhibit 182.
439 SeeMexicoMemonal, para.376,n.459.
440 SeeLawyersComrnitteeforHuman Rights,Legalized Injustice:Mexican
CriminalProcedureandHumanRights,p. 118 (2001),Annex 23, Exhibit
200 (notingthat "[c]onfessionsobtainedunder coercionare frequentlyused
to convict defendants"andurgingthe adoptionofislative and other
measuresto require theexpressexclusion of evidenceobtained through
coerciveeans).
441Seeid. at p. 31(Mexicancourtscontinue to followa Mexican Supreme
Court holdingthat evidenceestablishingthe arbitrarydetention of a suspect
does not require a findingthatthe suspect's confessionwas rendered
inv~luntaril~");Zamora PierceDeclaration, paras. 21-22, Annex 5.
442Seeid.
443SeeZamora-PierceDeclaration,para. 25, Annex 5;Richards Declaration,
para. 13,Annex6.8.34 In short,the exclusionaryrule Mexico proposes isnot a
general principle of lawwithinthe meaningof the Court's
Statute. There is no legal basisfor this Courtto adopt it.
B. Mexicois not Entitled tothe Orderof Cessationand
Guaranteesof Non-Repetition thatit Demands
8.35 InLaGrand, the Courtheld that the commitmentto
improvedcornpliance expressedby the United States,coupled
with the "review and reconsideration" remedy, satisfied
Germany'sdemands for guaranteesof n~n-re~etition~~~.
8.36 Mexico submits that"the Court can no longeracceptas
adequatethe assurances providedin ~a~rand'~~. Yet the
United Stateshas demonstrated thatits effortsto improve the
conveyanceof information aboutconsular notification are
continuingunabated and areachieving tangibleresults. Mexico
asserts thatthe remedy ordered inLaGrand has "proven
ineffectiveto prevent the regularand continuingviolationby its
competentauthoritiesof consularnotification and assistance
rights guaranteedby Article36"446.However, Mexico's
Memorialwholly fails to establisha "regular and continuing"
pattern ofbreaches of Article36 in the wake ofLaGrand, nor
could it,given the extraordinarylengthsto whichthe United
Stateshas gone to implementthis Court's directives. Asthe
Courtnoted inLaGrand, "no State could give [] a guarantee
[that therewill never againbe a failureto observethe obligation
of notificationunder Article36 of the VCCR]"~~~. Yet Mexico
seizesupon isolated cases allegingsuch failurein its efforts to
overturnthe Court'sjudgment inLaGrand. Moreover,Mexico
has failedutterly to prove itsclaim that the means that the
444 SeeLaGrand,Judgment,paras. 121-125.
445 MexicoMernorial,para. 404.
446 Mexico Mernorial,para. 393.
447LaGrand,Judgment,para. 124.United Stateshas chosen to carry out the review and
reconsiderationremedyare inadequate448.Reconsiderationand
review, as implementedby the UnitedStates, generates
meaningful outcomesjustified by the underlying factsof
particular cases.
8.37 The commitmentof the United Statesto ensuring
aggressive implementation of itsobligations under the VCCR
admits of no doubt. Since LaGrand, the United Stateshas
workedtirelesslyto improve its c~m~liance~~,and its efforts
are bearing fruit4''. This manifestcommitment more than
satisfies Mexico'sdemand for cessation and guaranteesof non-
repetition. Mexico hasnot provedthat the review and
reconsiderationmechanismdoes not function appropriately45',
and, in fact, it notonly meets but exceeds the efforts this Court
specificallyendorsedin ~a~rand'~. The Court should reject
Mexico'sproposedradical remedy in favor of the balanced
remedy it adoptedinLaGrand.
8.38 Morebroadly, however, theorder of cessation and
guaranteesof non-repetition soughtbyMexico shouldbe
rejectedbecauseof its own defects. Mexico would havethe
Courtdictatetothe United Statesthatit cease applying - and
also guaranteethat it would in factnot apply - awide variety of
fully proper municipal legal doctrines and decisions, the
combined scopeof which is~tag~erin~~'~S .uch anorderwould
448MexicoMemorial.,para. 397.
449Seesupraat Chapter1I.Dand ChapterVILE.
450See supraat Chapter1I.Dand ChapterVILE.
451See supraat ChapterV1I.D-E.
452SeeLaGrand,Judgment,paras. 12 1-124.
453Mexico'sbroadorderof cessation wouldhave the Courtprohibitnot
only"an,vproceduralpenalty for a Mexicannational's failureto timelyraise
a claimor defense basedon the ViennaConventionwhere competent
authoritiesof the UnitedStates have breachedtheir obligationtosethe
nationalof his or herrights under the Convention", but also"anymunicipalnot only be unprecedented ininternational law andpractice, it
would impose upon theUnited Statesobligationsbeyond those
that it undertook whenit ratified the VCCR. It wouldalso be
deeply intrusive into thecriminaljustice systemof the United
tat tes^ a'^ would havefar-reachingand intrusive
consequences for Statesovereigntythat wouldpressthe Court
into areas outside the scopeof its appropriatejurisdiction and
judicial function. For al1these reasons, Mexico'sproposed
order of cessation andguaranteesof non-repetition shouldbe
rejected.
1. Mexico S Requestfor an Orderof CessationhasNoBasisin
InternationalLaw
8.39 Mexico firstdemands an order of cessationof the
alleged breaches of Article36, including the issuanceof an
injunction, which would prohibit the United Statesfrom
applying a wide varietyof municipal law doctrines. Thiskind
oforder would be anunprecedented,unwise, andunjustified
intrusion into the criminaljustice system of the UnitedStates.
Indeed, it is telling that Germany didnot re uestsuchan order
96
in~a~randl", nor didParaguay in~reard .
lawdoctrine orjudicial holding that preventsa court inthe UnitedStates
fromproviding a remedy,including therelief to whichthis Courthat
Mexicois entitled here,to a Mexican nationalwhose Articlets have
beenviolated" andanymunicipallawdoctrineorjudicialholding that
requiresan individualizedshowingof prejudiceas a prerequisiteto relief for
the Vienna Convention violations shownhere". MexicoMemorial,para.
407(2)(c)(emphasis added).
454Respect for the operationof municipallegalsystemsis especially
necessary and appropriatein the field of criminal law,whichis of particular
significanceto the interna1orderand thesecurityof the Stateand itspeople.
SeeBreard,p. 263(Declarationof Judge Koroma) (statingtheparticular
needfor "respect for thesovereigntyof a State in relationtoits
justice system".).
455SeeLaGrand,Judgment,para. 11.
456SeeBreard, para5.8.40 To the extent that therehave been breaches of Article36
by the United States, they havebeen unintentional andarenot
continuing in character. Underthe Court's jurisprudence,
express ordersof cessation aregranted only in the most
exceptionalof cases457.The very nature of these few
exceptional cases, :includingthe continuing acts involved,areso
radically different from that of the present case as to make clear
that anorder of cessation would not beappropriate here.
8.41 Recognizing the exceptional natureof requiring
cessation as ajudicial remedy, internationallaw provides (and
Mexico concedes)that cessation is only appropriate in
situations where "the wrongful acthas a continuing
~haracter"~~~B . ut the "pattern of non-compliance" thatMexico
alleges would not come withinthe generallyaccepted definition
of a "continuing a~t"~~~I.ndeed,Mexico mustmanufacture the
457
See, e.g., United StatesDiplomaticandConsufarStaflin Tehran,
Judgment,I.C.J.Reports 1980, p. 44,para. 95(3)(a) (Iran "must immediately
terminate the unlawful detention");:Arrest Warrantof 11April 2000
(DemocraticRepublicof the Congo v.Belgium),Merits, Judgment,I.C.J.
Reports2002, paras. 88-89, (SeparateOpinion of JudgesHiggins,
Kooijmans,and Buergenthal) ("lt wouldseem that the Court regardsits
order for the cancellaiion of the warrantas a form of restitutioinintegrum",
not cessation).
458See MexicoMernorial, para. 400 (citingRainbowWarrior(Fr.-N.Z.),20
R.I.A.A.,Vol. XX,2117,270 (1990)).
459This generallyaccepted definitionfocuses on the continuationof the
particular wrongfulact itself over time.e, e.g., Commentaries,supranote
391at art. 14,p. 140,para. 5, Annex 23,Exhibit 153(noting that "[iln
essence a continuing.wrongfulact is onewhich hasbeen commencedbuthas
not been completedat the relevant time" and that"[ilt must be the wrongful
act as suchwhich continues"). Thus, Iran'sillegaldetention of the hostages
was a wrongfulact that continuedin time until their releasItis notat al1
clear that a series of discrete breaches couldconstitutea "continuingact" of
the type contemplatetlin the RainbowWarrior. This is perhaps why Mexico
instead relies on a statement fromthenternationalLawCommission
Commentariesbasing cessation noton the continuingnature of the act itself"continuingcharacter" of the claimout of what are,in the first
place,only allegedbut unprovenand discrete breachesin this
case.
8.42 In doing so, however, Mexico faces some
insurmountabledifficulties. First,Mexico assertsthat "[als to
Article36(1),the pattern of noncom liance is pronounced and
has extendedfor a lengthyperiod"46 b. This ignores
fundamentallychanged circumstances:the United States has
expressedits commitment to reverse previous difficulties with
non-complianceand has acteddecisively to make good on its
word. Mexico'sonly reply is aflat dismissal ofthese United
Statesefforts as ineffective aprior?61; critically, Mexico offers
no reasonwhy an order of cessation should be granted for a
practicethat the United Stateshas already taken concrete
measuresto stop. Second, Mexicoalleges that "[als to Article
36(2),there is no dispute that the municipal lawrules and
doctrinesthat have repeatedly preventedthe United States from
givingfulleffect to the purposesof Article 36remain in full
forceand effect. Maintainingthese munici al impediments
continuesthe internationally wrongfulact" 462.ASdiscussed
above,this contention is totallyat odds with the reasoningof
the Court's judgment inLaGrand, which did not question the
generalvalidityof these municipal laws, but held that the
circumstancesinwhich they wereapplied in that particular case
resultedin abrea~h~~~A . s explainedabove, we are now fully
complyingwith the requirementsof Article 36(2)as interpreted
in the Court's judgrnent inLaGrand.
but ratheron an "implication" offuturebreaches. This concept, basedon an
"implication" thatis simply unwarrantedin light of United Statesefforts to
improvecornpliance,es not reflect customary internationallaw.
460MexicoMemorial,para. 401.
46'SeeMexicoMemorial,para. 160.
462MexicoMemorial,para. 402.
463SeeLaGrand,Judgment pa,ra. 125.8.43 It should besaidthat Mexico's request foran order of
cessation follows fromaprofound misconceptionof the nature
of the obligationsthat StatesParties undertook in Article 36 of
the VCCR. Put plainly, therecan be no dutyto cease actions
that do not constitute breachesof a treatyobligation. For
example, it wouldbe inappropriatefor theCourt to order the
United Statesto "ensurethat itsjudicial authorities cease
applying" thevariouscategoriesof municipal law that Mexico
cites. As this Courtunambiguously determined,these
provisions arenot inconsistentwith the VCCR, and their
existence in UnitedStatesmunici al lawdid not automatically
constitute a breachof Article364aP.Particularlynow that the
United Stateshasrenewedits commitment to compliance with
Article 36, it is difficultto see why the Court's ruling in
LaGrandshouldbe consideredwrong. Mexico certainlynever
demonstratesthis.
2. Mexico'sRequestfor BroadGuaranteesof Non-Repetition
hasNo BasisinInternationalLaw
8.44 Mexico also demandsguaranteesof non-repetition.
These guarantees would havethe Court farexceed itsjudicial
function and orderthe UnitedStates to guarantee that it will,
among other things, not applya broad range ofmunicipal law
doctrines. The Court recognizedthe impracticability of actual
guarantees of non-repetitionin ~a~rand~'.
8.45 As a generalmatter,like Mexico'sdemand for an order
of cessation, its demand forbroad guaranteesof non-repetition
simply have no basis ininternational law. It is telling that
Mexico attempts tojustifj its demands for guarantees of non-
repetition (and forcessation)primarily by reference to Article
30(b) of the International LawCommission's Drafl Articles on
- --
464See LaGrand,Judgment,para.125.
465LaGrand,Judgment,para.124("noStatecouldgive sucha fyarantee").State ~es~onsibility~~~T . hisprovision, however,does not
reflect customary international la^^^^.
8.46 Previous to this Court's judgmentinLaGrandandthe
adoptionby the International Law Commissionof the Draft
Articles, guarantees of non-repetitionin internationalpractice
generally took the form of political commitments madeinthe
course ofdiplomatic exchanges. As the Commission admits,
much of this practice appearsto have been "inherited from
nineteenthcentury diplomacy'468.Commission reportshave
466 "Thc Stateresponsible forthe intcrnationallywrongfulact is underan
obligation:.. .(b) To offer appropriatcassurancesand guaranteesof non-
repetition,if circumstances sorequirc". InternationalLawCommission,
Draft articleson the Responsibilityof Statesfor internationallywrongful
acts adoptedby the InternationalLaw Commissionut its 53rdsession,
SupplementNo. 10(Al5611O),2001,Nov.,art. 30(b),Annex23, Exhibit65.
467 See, e.g.,Report of theInternationalLaw Commissionon the workofits
fifty-third session, SecondStatement ofthe Chairmanof theDrafting
Committee,Mr. Peter Tomka,2701stmeeting, 3 Aug. 2001availableut
http://www.un.or~law/ilc/sessions/53/en~ Annex23,
Exhibit 183(The Chainnan notcdthat "theCommitteedecidedto retain
article30, subparagraph(b) andarticle48, paragraph2(a) on thegrounds
that theprovisionswere draftedwithgreat flexibilityand introduceda useful
policy.... Some members of theCommittee,however, heldthat the
provision lackedsubstantialrootsin existingStatepractice, andthat there
was no clearevidence of an emergingprincipleof internationallaw inthis
direction.")(emphasis added);see also PatrickDaillie& Alain Pellet,Droit
InternationalPublic, p. 797, para.488 (2002), Annex23,Exhibit 104 («On
peut s 'interrogersur le caractèredela règleposéepar la C.D.I. dans
l'article30b)de sonprojet : s'agit-ilde codijîcationoude développement
progressif, Dans lapratique diplomatique,de tellesassurancessont
souvent exigées eta$ois données .. toutefois,onpouvaitse demanders'il
s'agissaitàd'une obligationjuridique ou de simplesgestesde bonne
volonté.)))"One might wonderaboutthe natureof thenile proposedbythe
ILCin Article3qb) of its draft:is it codificationor progressive
development? In diplomaticpractice, such assurancesare often demanded
and sometimesgranted ... however, one mightwonderwhether thisisa
legalobligationor simple gestureof goodwill".).
468See UnitedNations, O@cialRecordsof the GeneralAssembly,jfty-Jjïh
session,Reportof the International LawCommissionon the work ofitsjfty-consistently noted that "international practice is not unifonn" on
how and when guaranteeswere to be offeredin diplomatic
relations469.Indeed,the majority of incidentscited by the
Commission in itsReport - as well as al1of those in Mexico's
Memorial - date frombefore 1945. Evenmore rare arecases in
which the requestedguarantee of non-repetition sought would
require specificactions or responses by a State Party (akinto
new trials as Mexiconow seeks). Thus,while Mexicocontends
that "[r]equests for specific steps or forspecific instructionsare
comrnonly granted in international law'"", the facts are quite
the opposite. Whatis in fact common is that "[tlhe injured State
usually demands erthersafeguards againstthe repetitionof the
wrongful act without any specification of the form they are to
take or, when thewrongful act affects itsnationals, assurances
of better protectioriof persons and property"47'.The few
instances that Mexicocites involve circumstancesentirely
different from those in this case and do notjustifi Mexico's
extraordinary request.
8.47 For example,Mexico cites withoutdiscussion the Trail
Smelterarbitrationof 1938 and 1941~~~H . owever, the ruling in
that arbitration did not rely on any principleof customary
international lawallowing the tribunalto dictate specificsteps
to be taken to remedya breach of international law. Instead,it
turned on the extraordinaryterms of the compromis,which
-- -- - - - -- - -
secondsession, SupplementNo. 10(A/55/10),p.29,para.88, Annex23,
Exhibit184.28-30,paras.82-92.
469See Commentaneiçs,upra note391atart.30,p.221,para.12,Annex23,
Exhibit153;ReportoftheInternationalLawCommission onthe workofits
for@-fifthSession,Draftarticles ofpart twoofthedrajï onState
responsibiliv, documentA/48/10 in 1993Yearbookof the lnternational
Commission,Vol. II,documentA/CN.WSER.A/I993/Add.l(Part2), p. 82,
para.3, Annex23, Exhibit154(practice"notunivocal").
470 MexicoMemonal,para.404.
471 Commentariess ,upranote391 atart.30,p.221,para.12.
472
See MexicoMemorial,para.404 n.497(citingTrailSmelter
(U.S./Canada),3 R.I.A.A.1905).expresslyperrnittedsucha r~lin$'~. As Dr.Gray has observed,
the Trail Smelter case is infact "exceptional in its order of an
injunction" and"[tlhere is apparently no instance of the award
of a negativeinjunctionby an internationalarbitral tribunal
where no suchprovision wasincluded inthe compromis"474.
8.48 Mexicofùrthercites,again without discussion, thefin de
sièclecases of the Germanshi s"Herzog" and "Bundesrath," of
479
1899and 1900,respectively . These incidents, during the
Boer War, simply recorddemands by Germanymade in
diplomaticpractice;the United Kingdomwas at complete
liberty to accede tosuchdemands or not. The same may be said
of the even-oldercase Mexicocites, involving aletter from the
United States Secretaryof Stateto the Spanish Minister
requesting"a distinct assurance" againstthe repetition of
unlawfulvisitationand searchof United Statesmerchant
vesse~s~~~ T.heseexamplesof pure diplomacydo not suggest
that therewas a legal obligationto provide such assurances,nor
do they speak to the powersof this or any other court to order
Statesto take specific actswithout their consent.
8.49 Finally, Mexicoinvokes three examples - once again
drawn from the diplomaticcontext - inwhich the United States
provided specific assurancesof non-repetition inthe form of
- -
473 See Damagesfrom Operationof Smelter at Trail British Columbia, 15
Apr. 1935,United Statesof America-United Kingdom,Treaty Series 893,
Bevans, Vol. 6, art. 3,pp.61-62,Annex 23, Exhibit 185(granting the
tribunalthe powerto "finallydecide" "whether the Trail Smelter shouldbe
required to refrain from causingage in the Stateof Washingtoninthe
futureand, if so,to whatextent" and"what measuresor regime, if any,
shouldbe adoptedor maintained bythe Trail Smelter");ee also
474rasinghe, supra note97 at p. 410, Annex 23,Exhibit 64.
ChristineD. Gray,JudicialRemedies inInternationalLaw, p. 12(1987),
Annex 23,Exhibit 186.
475See MexicoMemorial, para. 404 n.497 (citinMartens, Nouveau
Recueil,2d series,Vol. 29,pp.456,486).
476See Mexico Memorial,para.403 n.493.requests to the Congress toamendaspects of United States
municipal la^^^^ A.gain,thesehoary examples (oneof which
predates the United States CivilWar) merely illustratethe
ability of a Stateto offera certaintype of specific guarantee of
its own accord in the exerciseof its own sovereignty. They Say
nothing about a legal obligationto offer a guarantee orof the
power of the Court to requirea Stateto do so.
8.50 Mexico attemptsto usethese diplomatic curiosity pieces
fromthe two preceding centuries tosuggest a legalbasis for its
ownrequest that does not,in fact, exist. Far from supporting
Mexico's far-reachingand invasivedemands (including its
demands that the Courtorderthe United Statesto modi@the
application of its criminallaw in its municipal courts),these old
cases provejust the opposite. In fact,demands of the sort
Mexiconow presses arenot supportedby recent practice, as the
Commission has recently~onfirmed~~~I.ndeed, the Special
Rapporteur expressed fundamental skepticismas to whether
guaranteesof non-repetition couldpresently be formulatedas a
legalobligation at Moreover,since guaranteesof non-
477 See Mexico Memorial,para. 404 n.497(citing F.V. Garcia-Amador, 2
TheChangingLawoflntemational Claims587-88(1984)).
478 SeeReportof thelrnternationalawCommissionon thework ofifsforty-
$fth Session,Dra$ articlesofpart twoofthedrafon Stateresponsibility,
documentA/48/10in 1993Yearbookof the International Commission,Vol.
II,documentA/CN.4iSER.A/l993/Add.l (Part2), p. 83,para.4, Annex 23,
Exhibit 154.
479See InternationalLawCommission,ThirdReport onStateResponsibility
byMr.James Crawford,SpecialRapporteur,document AiCN.41507,15
Mar. 2001,para. 58('"Thiselement offlexibilityis reflectedin article46 by
the qualifyingphrase'whereappropriate'. Butthis raises a secondquestion,
viz.,whether article 46nproperlybe formulatedas an obligationat ail. It
may be asked whattheconsequencesof a breach of thatobligationcouldbe.
Forexample, coulda Statewhich hadtenderedfull reparation for a breachbe
liabletoountermeasuresbecauseof itsfailureto give assurancesand
guaranteesagainstrepetition satisfactorytothered State? It does not
seem very likely. If,despiteearlierassurances,there is arepetitionof the
breach,this may be treatedas a circumstanceof aggravation,but that couldrepetitionhistoncally were not a remedygranted injudicial
proceedings (outside of the very recentpractice of certain
human rights bodies with special c~m~etences~~~ th)e
availabilityof guaranteeinjudicial proceedingsis by nomeans
c~ear~~'.
be true in any event. There maythus be a caseforexpressingarticle46 in
more flexibleterms."), Annex23, Exhibit 187.
480 InLaGrand,Germany citeda friendly settlementin the European Court
of HumanRights,ApplicationNo. 34382197(Denmarkv. Turkey)(2000), in
which Turkey agreed totakecertain measures. OralArgument,LaGrand,
(Germany v.UnitedStatesofAmerica), CR2000127(Simma),part VIII,
para. 23. in any event,thiswas a voluntaryfriendlysettlement,not ajudicial
order. It alsocited twojudgments of the Inter-AmericanCourtof Human
Rights(ICHR),Loayza Tamayo(1998) and CastilloPetruzzi (1999),holding
that the statesin question musttake measurestocomplywith their
obligationsunderthe AmericanConventionon HumanRights. However,
the ICHR possessesspecialcompetenceto requiresuchmeasuresby virtue
of the American Convention,competence notgrantedthis Courtby its
statute or the VCCR. Finally,in its Memorial,Mexicoobservesthat"[tlhe
Human Rights Committee hasfrequently calledon Statesparty to the lCCPR
to take stepsto ensurethatsimilar violationswillnot occur inthe future and
thatthose statesare underan obligation to takeimmediatestepsto ensure
strict observanceof the obligationsset out inthe Covenant". Mexico
Memorial,para.403, n.493. Mexico omitsthat this is not ajudicial
procedure. See,e.g., ShabtaiRosenne, "The Perplexitiesof Modem
IntemationalLaw: GeneralCourse on Public InternationalLaw" inRecueil
Des Cours, Vol. 291,pp. 249,Annex 23, Exhibit 117("Althoughthe
[Committeesthat supervise various humanrightsconventionsunderthe
auspicesof the United Nations,including theHumanRightsCommittee,]
may adoptsome of the outward signs ofjudicial procedures,suchas separate
and dissentingopinions,or self-recusation of ajudge for cause,the
procedurecannotbe regardedasjudicial".).
481Article 30(b)shouldbeviewed primarily as anexercisein progressive
developmentrather thancodification. The marginalstatusof yarantees of
non-repetitionin internationallaw is further evidencedby the factthat
scholarlydiscussionsof remediesin international law,includingrecent
writings, tendto give this remedyscant mention,if any. See, e.g., Alonso
Gomez-RobledoVerduzco,"Aspectos de la reparacionen derecho
intemacional", in Temasselectos de derecho internacional,pp. 181, 188-195
(1999), Annex23, Exhibit 188(no mention of guaranteesin a discussionof
four other typesof satisfaction);Christine Gray,JudicialRemediesin8.51 Even under the termsof Article 30(b) ofthe Drafi
Articles,however, Mexico'sdemands are clearlyinappropriate.
Reflectingthe fact thatthis provision representsa policy-
motivated formulation ratherthan a codificationof existing law,
Article 30(b) makes it clear that assurances and guaranteesof
non-repetitionare availablein exceptional circumstancesonly.
First,the obligation is to offer"appropriate" assurancesand
guarantees,and the Commentariesrecognize thatthese
measures "will not alwaysbe appropriate, even if
demanded'482.Thirycertainlyare "not required in al1cases'483.
Second,assurances and guaranteesare appropriateonly "if the
circumstances so require"484.An exceptional remedyshould be
applied cautiously, not in a mannerthat departs precipitously
from the Court's priorjurisprudence, introducinga far-reaching
and unprecedentedobligation. If the remedy is appropriate at
al],the measures taken should be "formulated in flexible
tertn~'~~'.
8.52 Mexico's proposed order,which would dictateto the
United States that certaindoctrinesof United Statesmunicipal
InternationalLaw, p. 42 (1987),Annex23, Exhibit 186(one mentionof
"assurances as to the Suture"as part of a list of "the mostcommontypes of
satisfaction" internationalarbitralpractice; no mentionin the survey of
I.C.J.practice).
48'Commentaries, supranote 391at art. 30, p. 222, para. 13.
483Id.at art. 30, p. 219, para. 9.
484Id. at art. 30, p. 22:2,para. 13(quotingdraft article 30(b)).
485Id. See also, e.g., FranciszekPrzetacznik, "La responsabilité
internationalede l'Étaà raisondespréjudicesde caractèremoral et politique
causésà un autre État", in Revuegénérale dudroit internationalpublic, Vol.
78, 1974,pp. 967, Annex 23, Exhibit 189. («S'ils'agit de la réalisation de
cetteforme de satisfaction, elleestd'unemanière générale, laisséà la
discrétionde 1'Etatresponsableet ceprincipe est enconformité avec la
souverainetéde 1'Etut.)>( "As far asthe canying out of thisform of
satisfaction isncemed, it is in general leto the discretionof the
responsible State; thisinciple is in conformity with the sovereigntyof the
State.").law must not be applied,is no more flexible than a
straightjacket. In addition,it wouldhave the Courtaddress
itselfto aspects of the municipalUnited Statescriminaljustice
systems that do not breachthe VCCR.
8.53 The first aspectof Mexico's proposedorderwould have
the Court order the UnitedStates"to ensure that itsjudicial
authoritiescease applying, andguarantee in the futurethat they
will not apply... any proceduralpenalty for a Mexican
national's failure totimelyraise a claim or defensebased on the
Vienna Conventionwherecompetent authorities ofthe United
States have breachedtheirobligation to advisethe national of
his or her rights under tu on vent ion "^sthe.Court
confirmed inLaGrand, proceduraldoctrines suchas the
procedural default doctrineare not necessarily inconsistent with
the VCCR. The CourtdeterminedinLaGrand that in certain
cases the United States"by means of its own choosing,shall
allowthe review andreconsiderationof the conviction and
sentenceby taking accountof the violation oftherights set forth
in [theVCCR]"~~~.SOlongas the United Statesprovides a
meansof review and reconsideration,the applicationof a
procedural doctrinebarringthe raising of a claim inrespect of
someother theoretically availablemeans of reviewand
reconsideration is not foreclosed bythe VCCR. For example,
even if a Mexicannationalwereto fail to timelyraise such a
claim or defense in thetrialand appellate stagesand even if
there were a "procedural penalty"attached to suchfailure
during an appellateor habeasreview,there wouldbe no
proceduralbar to the national'sraising a VCCRclaim or
defenseduring the clemencyprocess, and reviewand
reconsideration couldbeprovidedthrough the clemency
process.
486 MexicoMemorial,para.407(2)(c)(i).
487SeeLaGrand,Judgment,para.128(7).8.54 The same is true with respectto the second aspect of
Mexico's proposedorder, whichwould ask the Court to enjoin
"anymunicipal law doctrine orjudicial holdingthat prevents a
courtin the United States fromprovidinga remedy, including
therelief to which this Courtholdsthat Mexico is entitled here,
to a Mexican nationalwhose Article36rights have been
vio~ated"~~~ E.ven if a court at somestage inthe proceedings in
the United States is preventedby amunicipal doctrine or
judicial holding fromproviding review andreconsideration in
the circumstances suggested,review andreconsideration in
respectof the Mexican nationalinquestionmay have been
providedat an earlierstage of theproceedings. The Court's
judgment inLaGrand cannot properly beinterpretedto require
that everycourt in the United Statestowhich a claim might be
presentedmust considerthe matterfor itselfand on a de novo
basis. Alternativel.y,review andreconsiderationmight be
providedlater duringthe clemencyprocess489.
8.55 Finally, thi:third aspectofMexico's proposedorder,
whichwould seek to precludethe applicationof"any municipal
lawdoctrine orjudicial holdingthatrequires an individualized
showingof prejudice as a prerequisiteto relief for the Vienna
Conventionviolations shownhere'490,suffers from the same
fatalflaws. Mexico has notproventhat applicationof such
doctrinesor holdingshas the effectof preventing recourseto al1
possiblemeans that may be availabletoprovidereview and
reconsideration. Forexample, as hasbeen made clear ab~ve~~',
an individualized showing ofprejudiceis not a prerequisite to
accessto a review and reconsiderationremedyimplemented
throughthe clemency process. Whilesuch a showing maybe a
factorin decision-making duringthe clemencyprocess, the
488MexicoMemorial,para.407(2)(c)(ii).
489See supraatChapterVI.D.3.
490MexicoMemorial,para.407(2)(c)(iii).
49'Seesupra atChapterVI.D.3.availabilityof and recourseto the clemency processdoes not
dependon an individualizedshowing of prejudice,and the lack
of an individualized showingof prejudice is in noway a bar to
the granting of clemency in any particular case.
8.56 In the end, LaGrandrequires the availabilityof a means
of review and reconsideration. It does not requiremultiple
meansof review and reconsideration. It doesnot require any
particularmeans of reviewand reconsideration. And it does not
requirea particular result. As long as a meansof review and
reconsiderationis available - as it is in the UnitedStates- the
existenceof other, subordinatemunicipal lawdoctrinesthat
may preclude the availabilityof other possiblemeans is entirely
irrelevant.
8.57 Mexico asks this Court to issue an orderincorporating
guaranteesof non-repetition on a scale unknownin international
laworpractice. Moreover,the specific guaranteesthat it seeks
relateto conduct that does not breach the VCCR. The Court
shouldreject Mexico's submission relatingto cessation and
guaranteesof non-repetition.
8.58 It bears emphasizingthe extraordinary natureof the
reliefthat Mexico seeks in this case, and the deepincursion that
it would cause into United States sovereignty. As this Court is
aware,the vast majority of responsibility forcriminaljustice in
the United States is withinthejurisdiction of the fifty states, not
the federal govemment. It is the criminal lawandprocessesof
these fifty states, then, that would ultimately haveto
accommodateany ruling by this Court. The reliefthat Mexico
seeksis simply incompatiblewith those lawsandprocesses as
they currently exist. Mexicoimplicitly acknowledgesas much,
arguingthat "[ilf need be, [the domestic lawsof the United
States]must be changed in order to provide aremedythat givesfull effect to the Vienna on vent ion" T^he^changes to which
Mexico alludes,however, would requireconcurrence of the
legislatures and govemors of the various states andlor the
United StatesCongress - processes that are lengthy and fraught
with uncertainty. This Court has beenrightly cautious about
ordering actions that would test thelimits of a State's domestic
legalcapabilities, if not go beyondthem. As we have
explained, there1ie.fadopted inLaGrand - that "the United
States of America, by means of its own choosing, shall allow
the review and reconsideration of theconviction and sentence
by taking accountof the violation of the rights set forth inthat
Convention '493- can, unlike the extraordinaryrelief that
Mexico seeks,be accommodated withinthe context of existing
United States law. The United StatesrespectfUllyrequests that
the Court adhereto that decision.
493MexicoMemorial,para.298.
LaGrand,Judgment,para.128(7). CHAPTER IX
SUMMARYOF REASONING
9.1 For the reasons set forth above, this Court should reject
Mexico'ssubmissions. Significant aspects of Mexico'sclaims
either exceed thejurisdiction of the Court, or shouldbe found
inadmissible. Mexico in any event has not presented a case in
which it isentitled to the relief ithas sought.
9.2 Through an aggressiveand unparalleled outreach
program, the United Stateshas made a good faitheffortto
ensurecompliance with Article 36(l)'s requirementto provide
consularinformation "without delay" as that term isproperly
understood (that is, in the ordinary course of business and
without procrastination or deliberate inaction) and,when the
foreignnational hâs so requested,to noti@consularofficers in
the same fashion. Article36(1) does not, however,create any
obligation in respect of the timing or entitlement of law
enforcement authorities carryingout their functions,including
the taking of statements from detainees.
9.3 In addition, Mexicohas failed to meet its burden of
proving, with respectto each of the 54 cases, eachof the
elementsrequired to establishthat the United Stateshas
breached Article 36(1). Mexicohas also failed to prove any
breaches of Article 36(2).
9.4 The Court'sjudgment in LaGrand shouldprovide the
legal framework for the decision of this case. LaGrand
interpretedArticle 36(2),and articulated a remedyof review
and reconsideration of the conviction and sentencein light of
the violation. Sincethe decision in LaGrand, the United States
has conformed its conduct,for al1foreign nationals,to the
holding inthat case. The United States provides for case-by-
case review and reconsiderationof the conviction and sentencein capitalcases in lightof anybreaches of Article36(l)(b). The
United Statesdoes so withinthe framework of its laws,
including through the clemencyprocess, andit will continue to
do so.
9.5 Finally, evenwerethe Courtto determine thatthe
United Stateshad breachedArticle36 in a particularcase, the
Court should not go beyondthe remedy it setforthin LaGrand
for breachesof Article36. The Court should reject Mexico's
suggestionthat it revisit itsholding inLaGrandand order
exceptionalremedies, suchas the vacaturof convictions,the
remittal of sentences, theautomaticexclusion of evidence, and
sweepingguarantees of non-repetition. Moreover,the
exceptionalremedies requestedby Mexico are not appropriate
in light of the nature of theobligationsset forth inArticle 36
and have no basis in customary internationallaw. CHAPTER X
SUBMISSION
10.1 On the basis of the factsandargumentsset out above,
the Govemment of the United Statesof Americarequests that
the Court adjudgeand declarethatthe claimsofthe United
MexicanStates aredismissed.
Washington, D.C., 2 November 2003
William H.Taft, IV
Agentof the United States
of America Annexesto theCounter-Mernorial
Tableof Contents
VolumeII
Annex 1 - Declarationof AmbassadorMaura A.
Harty RegardingUnited StatesCompliance
with Article 36(l)(b) of the Vienna
Convention on Consular Relations.. ....................
Appendix 1 - U.S. Department of State Consular
Notification and Access (CNA)Outreach
Events (Late 1997 - October2003). ..................
Appendix 2 -Publications Targetedto Improving
ComplianceYwith ConsularNotification
Obligations in the United States.......................
Appendix 3 -State Compliance Initiatives.. ...........
Appendix 4 -Kesponse to Allegations of
ContinuingViolations of Article36 in
paragraphs 159 - 168 of the Memonal
(The "102 Cases" of AllegedViolations). ...........
Appendix 5 -The Twenty Capital Cases Discussed
in Paragraphs 140 - 155ofthe Mernorial.. ..........
Exhibit 1- Consular Notification and Access Card.. .
Exhibit 2 - Department of StateGuidelines
RegardingForeign Nationals Arrested or
Detained inthe United States(October 1986). ......
Exhibit 3 -Notice (October 1986). ...................... Exhibit4 .Departmentof StateDiplornaticNote
Relatingto Ramon ChavezGutiérrez. with
attached letter (April9.2003)........................A59
Exhibit 5 . Departmentof State Diplornatic
NoteRelating to Bautista Ramirez(February
13.2002) ...........................................A67....
Annex2 . Declarationof PeterMason
Concemingthe Fi@-Four Cases ........................1
Appendix 1. AvenaGuillen.Carlos ...................A75
Appendix2 . Ayala.HectorJuan ........................7
Appendix3 .BenavidesFigueroa.Vicente ............ A81
Appendix4 . Carrera Montenegro.Constantin0 ....... A84
Appendix5 . ContrerasLopez.Jorge ..................A86
Appendix6 . CovarrubiasSanchez. Daniel ............ A88
Appendix7 . Esquivel Barrera. Marcos ................102
Appendix8 .GomezPerez. Ruben ...................A107
Appendix9 . Hoyos.Jaime Annando .................A108
Appendix 10. Juarez Suarez. Arturo ..................A109
Appendix Il . Lopez.Juan Manuel ...................A126
Appendix 12 . Lupercio Casares.Jose ................A128
Appendix 13 . MacielHernandez.Luis Alberto .......Al 29
Appendix 14 . ManriquezJaquez. Abelino ............A131
Appendix 15 . FuentesMartinez.Ornar ................Al 33
Appendix 16. Martinez Sanchez. MiguelAnge1 ...... A135
Appendix 17. MendozaGarcia.Martin ...............Al 36
Appendix 18 . Ochoa Tamayo.Sergio ................A143
Appendix 19. ParraDuefias.Enrique .................A145
Appendix20 . RamirezVilla.Juan ...................A146
Appendix21 . Salazar. Magdaleno ...................A148
Appendix22 . SalcidoBojorguez. Ramon ............A149
Appendix23 . SanchezRamirez.Juan Ramon ........A165
Appendix24 . Tafoya Arriola.Ignacio ...............A166
Appendix25 . Valdez Reyes. Alfredo ................A167 Appendix 26 . Vargas. Eduardo David ...............A169
Appendix 27 . Verano Cruz. Tomas ..................A170
Appendix 28 . Zambrano.Enrique ...................A172
Appendix 29 . Zamudio Jimenez. Samuel ............A176
Appendix 30. Alvarez. Juan Carlos ..................A177
Appendix 3 1. Fierro Reyna,CésarRoberto ..........A179
Appendix 32. Garcia Torres, Hector .................A211
Appendix 33. Gomez, Ignacio ......................A213.
Appendix 34. Hernandez Llanas, Ramiro ............A214
Appendix 35 .Ibarra, Ramiro Rubi ...................A216
Appendix 36 .Leal Garcia, Humberto ................A218
Appendix 37. Maldonado. Virgilio ...................A220
Appendix 38 . Medellin Rojas, Jose Emesto ...........A222
Appendix 39 .Moreno Ramos. Roberto ...............A224
Appendix 40 .Plata Estrada. Daniel Angel............A226
Appendix 41. Ramirez Cardenas, Ruben .............A229
Appendix 42 . Rocha Diaz,Felix .....................A231
Appendix 43 . Regalado Soriano, Oswaldo ............A243
Appendix 44 .Tamayo, Edgar Arias ..................A245
Appendix45 . Caballero Hernandez,Juan .............A246
Appendix 46 .Flores Urbin. Mario ...................A248
Appendix47 .Solache Romero, Gabriel ..............A250
Appendix48 .Fong Soto,Martin Raul ................A306
Appendix49 ..Raphael Camargo Ojeda ...............A315
Appendix 50..HernandezAlberto, Pedro .............A317
Appendix 51 .PérezGutiérrez, CarlosRené ..........A341
Appendix 52..Loza, JoseTnnidad ...................A345
Appendix 53 ..Torres Aguilera, Osvaldo..............A355
Appendix 54 . Reyes Camarena, HoracioAlberto .... A357
Annex 3 .Declaration of ProfessorThomas
Weigend Conceming the Compatabilityof
Mexico's Submissions withRules of Criminal
Procedure Followedby National and International
Criminal Courts .....................................A359...Annex4 .Declaration of AmbassadorMauraA .
HartyConceming State Practice inImplementing
Article 36(1) of the Vienna Convention on
ConsularRelations ..................................A375...
Annex 5 .Declaration of DoctorJesus Zamora
PierceRegardingCertain Aspects ofMexican
Criminal Procedure ..................................A391.
Annex 6 . Declaration of AlexanderRichards.
U.S. Consular Agent. Regarding Mexican Law
Related to ConsularNotification ........................3
Annex 7 . Declaration of Assistant United States
Attorney GeneralChristopher A .Wray Regarding
the Criminal Justice System of the United State......A409
Annex 8 . Arizona Clemency Declaration ..............A439
Annex 9 . Arkansas Clemency Declaration .............A443
Annex 10 . Califomia ClemencyDeclaration ...........A449
Annex 11. Florida Clemency Declaration ...............475
Annex 12. IllinoisClemency Declaration ..............A479
Annex 13 .Nevada Clemency Declaration .............A485
Annex 14. OhioClemency Declaration .................A491
Annex 15 .Oklahoma ClemencyDeclaration ...........A495
Annex 16 . Oregon Clemency Declaration ..............A501
Annex 17 . Texas Clemency Declaration ................A505
Annex 18 .Declaration of EdwardA. Betancourt
Conceming United States CitizenshipLaw ............A511
Annex 19 . Declaration of DominickGentile
Conceming Bureau of Citizenshipand
ImmigrationServicesRecords ........................A517Annex 20 -Declarationof Joseph Greene
Concerning Immigration Detainers.. .................A521
Annex21 -Consular NotificationandAccess:
Instructionsfor Federal,State and LocalLaw
Enforcement and OtherOfficiaisRegarding
ForeignNationals in the United Statesand the
Rights of ConsularOflicials toAssist Them...........A525
Annex 22 -Secretaryof State to Al1Diplomatic and
Consular Posts: ConsularNotification and Access
(2001State 010160)(January 18, 2001). ...............05
VolumeIII
Annex23 - Documentsin Support of the Counter-
Memorial.. .........................................A619.....
Exhibit 1 -Vienna Convention on Consular
Relations, 24 April 1963,arts. 36-65,596
U.N.T.S. 261;Vienna Convention on Consular
Relations Ccincerningthe Compulsory
Settlement of Disputes,24 April 1963,arts. 1-8,
596U.N.T.S.487 .................................A621...
Exhibit 2 -United States Census Bureau, The
Foreign Born Populationin the UnitedStates:
(Table 1.1)Populationby Sex, Age and
CitizenshipStatus, CurrentPopulationSurvey,
document PPL-135,2000, March,pp. 1-8.. ..........42
Exhibit 3-Therrien, Melissa & Ramirez,Roberto
R., "The Hispanic Population inthe United
States", in CUrrentPopulation Reports(U.S.
Census Bureau), document P20-535,2000,
March, pp. 1-8....................................A652....Exhibit 4 -United StatesImmigration and
Naturalization Service, Officeof Policy and
Planning,Estimates ofthe Unauthorized
Immigrant Population Residing in the United
States: 1990to 2000,2003, January, pp. 1-19......A661
Exhibit 5 -United StatesDepartment of
Homeland Security,Ofice of Immigration
Statistics, 2002 YearbookofImmigration
Statistics, 2003, October,pp. 17-178, 196.........A681
Exhibit 6 -Hirabayashi v. UnitedStates,
320 U.S. 81, 100(1943). ..........................A696..
Exhibit 7 -United Nations,Conferenceon
Consular Relations, Vol.1,Summaryrecords of
plenary meetingsand the meetingsoftheFirst
and Second Committees,document
AlCONF.25116,1963,pp. 35-43, 82,87,246-
248, 329-342 .....................................A699....
Exhibit 8 -Thailand:amendmentto article 36,
document AlCONF.25lC.21L.101,inUnited
Nations, Conferenceon Consular Relations,
Vol.II, Annexes:Proposais and amendments
submitted in the Second Committee, document
A/CONF.25/16/Add.1, 1963,p. 84.. ...............A730
Exhibit 9 -Zadvydasv.Davis, 533 U.S.678,
693-694 (2001). ..................................A732..
Exhibit 10 - Plyler v.Doe, 457 U.S. 202,210
(1982). ..........................................A736.......
Exhibit 11 - Mathews v.Diaz, 426 U.S.
67, 77 (1976).....................................A739....
Exhibit 12 -KwongHai Chewv. Colding,
344 U.S. 590, 596-598(1953). ....................A742Exhibit 13 - YickWov.Hopkins, 118U.S. 356,
369 (1886) ........................................A747....
Exhibit 14 - United StatesConstitution,
Amendments 5 and 14 .............................A750.
Exhibit 15 - Miranda v.Arizona, 384 U.S. 436,
478-479 (1966). ...................................A756...
Exhibit 16 - UnitedStates v. Garibay, 143F.3d
534, 536-539 (9thCir. 1998).. .....................A760
Exhibit 1 7- UnitedStates v. Heredia-Fernandez,
756F.2d 1412, 1412-1416(9thCir. 1985) .........A767
Exhibit 18 - UnitedStates v. Short, 790 F.2d 464,
464-469 (6thCir. 1986). ..........................A773..
Exhibit 19 - North Carolina v.Butler, 441 U.S.
369, 374-375(1979). ...............................A780.
Exhibit 20 -Bousley v. UnitedStates,523 U.S.
614, 614-619 (1998) ...............................A784..
Exhibit 21 -Gerstein v.Pugh, 420 U.S. 103, 103-
127(1975). ........................................A791....
Exhibit 22 -C'ounty ofRiverside v.McLaughlin,
500 U.S. 44, 53-57(1991). .........................A818
Exhibit 23 -G'ideon v.Wainright,372 U.S. 335,
343-345 (1963) ....................................A825...
Exhibit 24 -Scottv.Illinois, 440 U.S. 367,372-
374 (1979). ........................................A830....
Exhibit 25 -CJnitedStates v.Wooten,688 F.2d
941, 949-95'1(4thCir. 1982). ......................A835
Exhibit 26 -Craig v. Boren, 429 U.S. 190,208-
210 (1976). .......................................A840....Exhibit27 -Loving v. Virginia,388 U.S. 1,11-12
(1967)............................................A845......
Exhibit28 -Bolling v.Sharpe, 347 U.S. 497,500
(1954)............................................A849......
Exhibit29 -Bounds v.Smith,430 U.S. 817,820-
822(1977). .......................................A852....
Exhibit30 -Wigginsv.Smith, 156L. Ed. 2d471,
472,493-495 .....................................A857.....
Exhibit31 -Ramirez v.State, 65 S.W.3d 156
(Tex.App. 2001). ................................A863..
Exhibit32 -Morales v.State, 910 S.W.2d642
(Tex.App. 1995). .................................A871...
Exhibit33 -Escobedo v.Illinois, 378 U.S.478,
479,490-492 (1964). ..............................A878.
Exhibit34 -People v.Montano, 277 Cal. Rptr.
327(Cal. Ct. App. 1991). ..........................A884.
Exhibit35 -Reyes-Perezv.State, 45 S.W.3d312,
312-320(Tex. App. 2001). .........................A893
Exhibit36 -Baltierra v.State, 586 S.W.2d553
(Tex. Crim.App. 1979). ...........................A903.
Exhibit37 -People v.Marquez, 756 N.E.2d 345,
349-51,358-359 (Ill.App. Ct. 2001) ...............A909
Exhibit38 -State v.Ramirez,732 N.E.2d 1065
(OhioCt. App. 1999),stay granted, 724N.E.2d
814(2000), cause dismissed, 725 N.E.2d 1 154
(2000). ...........................................A916.....Exhibit39 - Khanna,Vikramaditya S.: Double
Jeopardy'sAsymmetic AppealRights: What
PurposeDo ï'hey Serve? (BostonUniversity
LawReview,Vol. 82,No. 2,2002, April, pp.
341-346). ..................................................
Exhibit40 - UnitedStates exrel. Negron v.State
ofNew York,434 F.2d 386,390-391 (2d Cir.
1970). ......................................................
Exhibit41 - UnitedStates v. Lim,794 F.2d 469
(9thCir. 1986)ber curium). ...........................
Exhibit42 -ApplicationofMurga, 631P.2d 735
(Okla. 1981). .............................................
Exhibit43 -People v.Mata Aguilar, 677 P.2d
1198(Cal. 1984). ........................................
Exhibit44 -Calderon-Palomino v.Nichols, 36
P.3d 767 (Ariz.Ct. App 2001). ........................
Exhibit45 -Williams v.Martin, 618 F.2d 1021,
1026-1027 (4th Cir. 1980). ..........................
Exhibit46 -People v. Watson,221 N.E.2d 645
(111. 966).............................................
Exhibit47 -United States Code,Title 18,Sec.
3006A.. ...................................................
Exhibit48 - UnitedStates v.Cruz, 581 F.2d 535,
542-543(5thCir. 1978). ................................
Exhibit49 - UiîitedStates v.Navarro Viayra,206
F. Supp.2d 1057, 1066-1068(E.D.Cal. 2002). ...
Exhibit50 -Eddings v. Oklahoma,455 U.S. 104,
110-112(1982) ...........................................
Exhibit51 - Lockettv. Ohio,438 U.S. 586,602-
605(1978) (plurality opinion). ........................Exhibit 52 - McCoy v. North Carolina, 494 U.S.
433, 442-444 (1990). ..............................A1008
Exhibit 53 - MilIs v.Maryland, 486 U.S. 367,384
(1988) .............................................A1013....
Exhibit 54 - Simmons v.South Carolina, 512U.S.
154, 169-171 (1994)(plurality opinion of
Blackmun, J.); 512 U.S.at 177(concurring
opinion of O'Connor,J., Rehnquist, C.J. and
Kennedy, J.). ......................................A1016.
Exhibit 55 - Gregg v.Georgia, 428 U.S. 153, 188-
200 (1976). ........................................A1022..
Exhibit 56 - UnitedStates v.Frady, 456 U.S. 152,
153, 167-169(1982) ...............................A1037.
Exhibit 57 - Massaro v.UnitedStates, 155L. Ed.
2d 714, 718-23(2003). ............................A1043
Exhibit 58 - Valdez v.State, 46 P.3d 703 (Okla.
Crim. App. 2002). .................................A1051.
Exhibit 59 - Herrera v.Collins, 506 U.S. 390,
411-416 (1993) ....................................A1063.
Exhibit 60 - Fitzmaurice,SirGerald:The Law and
Procedure of the International Courtof Justice,
Vol. 2. Grotius Publications,Ltd., 1986,pp.
434-440, 492-496, 686-695.. .......................A1071
Exhibit 61 -Oppenheim'sInternationalLaw, Vol.
1,parts 2-4. 9th edition. Longrnan, 1992. (Sir
R. Jennings & A. Wattseds.) pp. 1268-1282.. ......A1095
Exhibit 62 -Rosenne, Shabtai:The Law and
Practice of the InternationalCourt, 1920-1996:
Jurisdiction, Vol. 2.3rd edition. Martinus
Nijhoff Publishers, 1997,pp. 546-552.. ............A1112Exhibit63 -Dispute ConcerningAccess to
Information UnderArticle 9of the Ospar
Convention (Ireland v. UnitedKingdom of
GreatBritain and NorthernIreland), Final
Award, 2 July 2003, PermanentCourt of
Arbitration (Declarationof Prof. Reisman),
paras. 1-16.......................................
Exhibit64 - Amerasinghe, ChittharanjanF.:
Jurisdiction of InternationalTribunals. Kluwer
Law International, 2003,pp.259,284-286,410-
415 ................................................A1145
Exhibit65 - International LawCommission,Draft
articles on the Responsibilis, of States-for
internationally wrongful acts adoptedby the
InternationaILaw Commissionat its 53rd
session, Supplement No. 10(Al5611O),2001,
November, arts. 30-47 ................................
Exhibit66 - Ambatielos Clairn(Greece v. United
Kingdom), 12 U.N.R.I.A.A. 83, 1956,pp. 120-
123................................................A1164....
Exhibit67 - Cardot v.France, 200 Eur. Ct. H.R.
(seriesA) paras. 29-34 (1991)......................A1170
Exhibit68 -Barbera, Messeguéand Jabarodo v.
Spain, 146Eur. Ct. H.R.(seriesA) paras. 57-61
(1988).............................................A1175...
Exhibit69 -L,eyesy Codigosde México,Codigo
Federalde E'rocedimientosPenales,Arts. 128
(1995) (Translation follows.)......................A1180
Exhibit70 -Shahabuddeen,Mohamed: Precedent
inthe World Court. Grotius Publications, 1996,
pp.26-31 ..........................................A1190...Exhibit71 - ViennaConventionon the Law of
Treaties,23 May 1969, 1155U.N.T.S. 331,33 1-
353..............................................A1197......
Exhibit72 - Treatyon the Executionof Penal
Sentences,25November 1976,United States of
America-United Mexican States,28 U.S.T.
7399.............................................A1222.....
Exhibit73 - 1960Yearbookof the International
LawCommission, Vol. 1,SummaryRecords of
theTwelfth Session, document
A/CN.4/SER.A/1960(534th Meeting,6 May
1960),p. 42,45-47................................A1242..
VolumeIV
Exhibit74 - UnitedStates Departmentof State, 7
ForeignAffairs Manual 400, 400-416,411,
appendixa. ......................................A1247....
Exhibit75 - OxfordEnglish Dictionary. 2nd
edition. Clarendon Press, 1989,Vol.4, p. 409;
Vol.20, pp. 458-460..............................A1278.
Exhibit76 -Webster'sThird New International
Dictionaryofthe English Language,
unabridged. G. & C .Meniam Company, 1961,
pp. 595,2627 ....................................A1285...
Exhibit77 -Le Nouveau Petit Robert.
DictionnairesLe Robert, 1995,p. 465..............A1289
Exhibit78 -UnitedStates v.Alvarez-Sanchez, 511
U.S.350, 357-358(1994) .........................A1292Exhibit 79 - United StatesDepartment of State,
Karl and WalterLaGrand: Report of
Investigation into Consular NotificationIssues,
17Feb. 2000.. .....................................A1296.
Exhibit 80 - ConsularConvention, 1June 1964,
United States of America-Union ofSoviet
Socialist Republics, 19U.S.T. 5018.. ...............A1310
Exhibit 81 - ConsularConvention,7July 1972,
United States of America-HungarianPeople's
Republic, 24 U.S.T. 1141.. ........................A1334
Exhibit 82 -ConsularConvention,31May 1972,
United States of America-PolishPeople's
Republic, 24 U.S.T. 1231.. ............................8
Exhibit 83 -ConsularConvention,9 July 1973,
United States of America-Czechoslovak
Socialist Republic,T.I.A.S. 11083..................A1423
Exhibit 84 -ConsularConvention,5 July 1972,
United States of America-Socialist Republicof
Romania,24U.S.T. 1317 ..........................A1459
Exhibit 85 -C:onsularConvention, 17September
1980, United Statesof America-People's
Republic of China, 33U.S.T. 2973, amendedby
exchange of notes, 33 U.S.T. 3042.. ...............A1487
Exhibit 86 -C:onsularConvention, 12May 1988,
United States of America-Republicof Tunisia,
Senate treaty documentno. 101 -12.................A1529
Exhibit 87 - ConsularConvention,6 June 1951,
United States of America-UnitedKingdom of
Great Britain andNorthern Ireland,3 U.S.T.
3426.. ............................................A1551....Exhibit 88- 1960Yearbookof the International
LawCommission, Vol. 1,Sumrnary Recordsof
the Twelfth Session, document
A/CN.4/SER.A/1960(533rd Meeting, 5 May
1960),pp. 35-37. .................................A1576...
Exhibit 89 -Consular Convention, 14March
1952,Kingdom of Sweden-United Kingdomof
GreatBritain and NorthernIreland, 202
U.N.T.S. 158, 182 ................................A1582..
Exhibit90 -Draft articleson consular relations
adoptedby the InternationalLaw Commission
at its thirteenthsession,document
AlCONF.2516,in UnitedNations, Conference
on ConsularRelations, Vol.II, Annexes,
documentA/CONF.25/16/Add.1, 1963,pp.3,
23-24 .............................................A1585....
Exhibit91 -Report of theInternational Law
Commissionto the GeneralAssembly Covering
theworkof its thirteenthsession, document
Ai4843in 1961 Yearbookof the International
LawCommission, Vol II, Documents of the
thirteenthsession includingthe report of the
Commissionto the GeneralAssembly,
documentA/CN.4/SER.A/196l/Add. 1,pp. 88-
91, 112-113.......................................A1589...
Exhibit92 -Federal Republic of Germany:
amendmentsto article 36,document
NCONF.25/C.2/L.74, in United Nations,
Conferenceon ConsularRelations, Vol.II,
Annexes:Proposals andamendments submitted
in the Second Committee,document
AiCONF.25116/Add.l, 1963,p. 81.. ...............A1598Exhibit93 - Inter-AmericanCommission on
HumanRights,RamonMartinez Villareal v.
UnitedStates,Merits, CaseNo. 11.753,Report
No. 52/02, 10Oct. 2002, available at
http://www.c~idh.org/annualrep 1/2002eng/USA.
1753.htm .........................................A1601....
Exhibit94 -Black'sLaw Dictionary. 7th edition.
WestGroup, 1999,p. 245.. ........................A1621
Exhibit95 -Schickv.Reed,419 U.S. 256,260-
266(1974) .......................................A1624....
Exhibit96 -Exparte Grossman, 267 U.S. 87,
120-121(1925). ..................................A1633..
Exhibit97 -Heise,Michael: Mercy by the
Numbers: An Empirical Analysis of Clemency
and its Structure.(Virginia Law Review, Vol.
89,No. 2,2003, Apd, pp. 239-240,253-256,
284, 297-299,309). ...............................A1637..
Exhibit98 -Solemv.Helm, 463 U.S. 277,301
(1983) ............................................A1651.....
Exhibit99 -AmericanBar Association, Clemency
and Conseqtiences:State governors and the
impactofgrczntingclemencytodeath row
inmates,2002,July, available at
http://ww.abanet.org/crimjust/juvjus/jdpclemeff
ect02.pdf.........................................A1654....
Exhibit 100- Letterfrom Edward Leyva,
Chairmanof Arizona Board of Executive
Clemency, to Jane Hull, Governor of Arizona,
23 February 1999..................................A1663.Exhibit 101 - Letter fromJoschka Fischer,
Foreign Minister ofFederalRepublic of
Germany, to MadeleineK.Albright, Secretary
of State of the UnitedStates of America, 22
February 1999.. ..................................A1665...
Exhibit 102 - MethanexCorp. v.UnitedStates,
First Partial Award, 7August2002, NAFTA
Chapter 11Tribunal,paras. 44-45. ....................8
Exhibit 103 - Cheng, Bin:General Principlesof
Law as Applied by InternationalCourts and
Tribunals. Stevens & Sons, 1953,pp. 304-307.. ....A1671
Exhibit 104 - Daillier,Patric& Pellet, Alain:
Droit International Public. 7thedition. Librarie
Générale de Droit etdeJurisprudence, 2002,pp.
430-435, 796-797.. ...............................A1678.
Exhibit 105 - Freeman,Alwyn V.: The
International Responsibilityof States for Denial
of Justice. 2nd edition. Longmans, Green and
Company, 1970,pp. 72-77.. .......................A1689
Exhibit 106 -CharterofFundamental Rights of
the European Union,O.J., 2000lC 364101.. .........A1698
Exhibit 107 -AmericanConvention on Human
Rights, 22 November 1969,O.A.S. Treaîy
Series No. 36, at 1, 1144U.N.T.S. 123.............A1715
Exhibit 108 -AmericanDeclaration of the
Rights and Duties of Man,O.A.S. Off. Rec.
OEAISer.L.N.II.4, rev.(1965), O.A.S. Res.
XXX.. ...........................................A1736.....
Exhibit 109 -AfricanCharteron Human and
Peoples' Rights, 27 June 1981,21 I.L.M. 58
(1982), Organizationof Afiican Unity,
document CAB/LEG/67/3rev.5.. ..................A1746Exhibit 110 -European Conventionfor the
Protection of Human Rights andFundamental
Freedoms,4 November 1950,213U.N.T.S. 221.. . A1760
Exhibit 111 -IJnited Nations,HumanRights:A
Compilationof International Instruments,Vol
1,Part 2, document ST/HR/l/Rev.6,2002, pp.
111-x.............................................A1782......
Exhibit 112 -Convention for theUnification of
Certain Rules Relating to InternationalCarriage
by Air, 12Oct. 1929, 137L.N.T.S. 11,
commonlyreferred to asthe "Warsaw
Convention". .....................................A1793...
Exhibit 113 - Wussbaum, MarthaC., "Capabilities,
Human Rights, and the Universal Declaration",
in The Future of InternationalHuman Rights.
Transnational Publishers, Inc., 1999(B.H.
Weston & S.P. Marks, eds.)pp. 25-26................807
Exhibit 114- 'Hemhdez, RubénHernandez &
Trejos, Gerardo: La Tutelade los Derechos
Humanos. Ediciones JuricentroS.A., 1977,
.....................11
pp. 11-13.('Translationfollows.).
Exhibit 115 -Chambers v.Florida,309U.S. 227,
241 (1939)........................................A1820...
Exhibit 116 -I/ACourt H.R., TheRight to
Information on ConsularAssistance in the
Framework of the Guaranteesof theDue
Process of Law. Advisory Opinion OC-16/99
of October 1, 1999. SeriesANo. 16,paras.
120-124.. ........................................A1823....Exhibit 117 -Rosenne, Shabtai,"The Perplexities
of ModemInternationalLaw: General Course
on PublicInternationalLaw", in Recueildes
Cours,2001Collected Coursesof The Hague
Academyof LnternationalLaw, Vol. 291.
MartinusNijhoff Publishers,2002, pp. 125-133.. .. A1829
Exhibit 118 -Viemcci, Luisa: La tutela di diritti
individualiin base alla Convenzione di Vienna
sullerelazioniconsolari: in margine al cas0
LaGrand. (Rivistadi Diritto Internazionale,Vol.
84,2001, March,p. 686.) (Translationfollows.). ... A1841
Volume V
Exhibit 119 -State of Delaware v.Reyes,740
A.2d 7(SuperiorCourtof Delaware 1999).... ...... A1887
Exhibit 120 - UnitedStates v.Lombera-
Camorlinga,206 F.3d 882 (9th Cir. 2000) (en
banc),overruling 170F.3d 1241(9th Cir. 1999)... A1897
Exhibit 121 -Letter from HenryA. Kissinger,
Secretaryof Stateof the United Statesof
America,to Alfonso Garcia Robles, Foreign
Ministerof Mexico, 16February 1976; Letter
fromAlfonso GarciaRobles,Foreign Minister
of Mexico, toHenry A. Kissinger, Secretaryof
Stateof theUnited Statesof America, 25 March
1976 .................................................A1917
Exhibit 122 - 123CongressionalRecord of
theUnited Statesof America 19854-19856
(1977)(testimonyof Representative Fortney
H. Stark, Jr.)...................................... A1923Exhibit 123 -123CongressionalRecord of the
United Statesof Arnerica35016-35019 (1977)
(statement of RepresentativeJoshua Eilberg).......Al928
Exhibit 124 -UnitedStates Citizens Imprisoned
in Mexico: HearingBefore the Subcomm.on
InternationalPolitical andMilitary Affairs of
the House Committeeon International
Relations, PartII,94th Congress, 1976,pp.
38-43 (statementof RepresentativeBenjamin
A. Gilman). ......................................A1934....
Exhibit 125 -1J.S.Citizens Imprisoned in Mexico:
Hearing BeforetheHouse Subcommittee on
International Politicaland Military Affairs of
the Committeeon International Relations, Part1,
94th Congress, 1976,pp. 15-17(statement of
Honorable L.eonardWalentynowicz). ................1944
Exhibit 126 - 13GH 5 StR 116/01,decidedby
the German FederalSupreme Court on 7
November 2001,available a?
http://www.Ibundesgerichtshof.de
(Translationfollows.)..............................A1949
Exhibit 127- Ji.v.Partak, [2001] 160C.C.C.
(3d) 553-570.. ....................................A1961...
Exhibit 128- Canada v. VanBergen, 261 A.R.
.......................................A.1982..
387 (2000).
Exhibit 129- R.v.Abbrederis, (1981) 36 A.L.R.
109...............................................A1987.....Exhibit 130 -"Judicial Decisions", in 1976Italian
Yearbook of InternationalLaw,Vol. II.
Editoriale Scientifica, pp. 336-339
(summarizing and quotingre Yater,which was
decidedby Italy's Court of Cassationon 19
February 1973). ..................................A1999...
Exhibit 131 -R. v. VanAxe1and Wezer(1991)31
May, Snaresbrook Crown Court,HHJ Sich,
reportedin Legal Action 12, September 1991 .......A2006
Exhibit 132 -R. v.Bassil andMouffareg(1990),
28 July, Acton Crown Court,HHJ Sich,
reported in Legal Action 23, December 1990.. ......A2008
Exhibit 133 - 1960Yearbook ofthe International
Law Commission, Vol. 1,SummaryRecordsof
the Twelfth Session, document
A/CN.4/SER.A/1960 (535thMeeting, 9 May
1960),pp. 48-50.. .................................A2011..
Exhibit 134 - Venezuela: amendmentto article 36,
document A/CONF.25/C.2/L.100,in United
Nations, Conferenceon ConsularRelations,
Vol.II,Annexes:Proposals andamendments
submittedin theSecondCommittee,document
A/CONF.25/16/Add.1, 1963,p. 84.. ...............A2015
Exhibit 135 - United Statesof America:
arnendmentsto article 36, document
A/CONF.25/C.2/L.3, in UnitedNations,
Conferenceon ConsularRelations,Vol.II,
Annexes:Proposals andamendmentssubmitted
in theSecond Committee,document
A/CONF.25/16/Add.l, 1963,p. 73 .................A2017Exhibit 136 - Cireece:amendmentto article36,
document A/CONF.25/C.2/L.125,inUnited
Nations, Conferenceon ConsularRelations,
Vol.II,Anneires:Proposais andamendments
submittedintheSecond Committee,document
A/CONF.Z5/'16/Add1 . , 1963,p. 87...................19
Exhibit 137 - Mapp v.Ohio,367 U.S. 643,655
(1961) .............................................A2021....
Exhibit 138 - Report of theInternational Law
Commissionto the GeneralAssembly,Dra3
Articles ontheLaw of Treatieswith
Commentaries,document A/6309/Rev.1in 1966
Yearbook of'the InternationalLaw Commission,
Vol II, Documentsof the second part of the
seventeenth session and of the eighteenth
session incl~rdingthe reportsof the Commission
to the GeneralAssembly, document
A/CN.4/SEK.A/1966/Add.1,p 169,2 18-220.. ...
Exhibit 139 -Merrills, J.G.: The development of
international law by the European Courtof
Human Rights.Manchester University Press,
1993, pp. 120-122..................................A2031
Exhibit 140 -Lee, Luke T.: Consular Law and
Practice. 2ndedition. ClarendonPress, 1991,
pp. 154-163m.......................................A2037..
Exhibit 141 -Siekmann, R.C.R., "Netherlands
State Practiceforthe ParliamentaryYear 1982-
1983", in 1984Netherlands Yearbook of
InternationalLaw, Vol. 15.MartinusNijhoff
Puiblishers,,pp. 267, 34...........................A2050Exhibit 142 -Chishti,MuzaffarA.:Migration
Regulation GoesLocal: The Role of States in
U.S. ImmigrationPolicy. (NewYork University
Annual Surveyof AmericanLaw,Vol. 58,No.
3,2002, pp. 371-373). .............................A2054
Exhibit 143 - Yanez,Linda R. & Soto, Alfonso:
Local Police Involvementin the Enforcement
of ImmigrationLaw.(Hispanic Law Journal,
Vol 1,NO.1,1994,pp. 9-10,43-47) ................A2058
Exhibit 144 - Faulder v.TexasBoard ofPardons
and Paroles, etal., No. A 98 CA 801SS, slip
op. (W.D. Tex.Dec.28, 1998). .....................A2068
Exhibit 145 - Faulder v.TexasBoard ofPardons
and Paroles, 178F.3d 343 (5th Cir. 1999)(per
curiam), cerf.denied,527U.S. 1017 (1999). ........A2090
Exhibit 146 - Briefin Opposition to Petition for
Writ of Certiorari andApplication for Stay of
Execution,Medina v.Texas(No. 02-5752). .........A2095
Exhibit 147 - PressRelease,Officeof the
Governor, Gov. Perry Grants Pardons to 35
TuliaDefendants (22 August2003). ...............A2133
Exhibit 148 -Liptak, Adam,"Texas Governor
Pardons 35 Arrestedin Tainted Sting", in The
New YorkTimesp. A7(23August 2003). ..........A2137
Exhibit 149 -Sedefio,David, "35 Convicted in
Tulia Busts arePardoned", in TheDallas
Morning Newspp. 1A, 10A(23 August 2003). .....A2139
Exhibit 150 -Valdez v.Ward,219 F.3d 1222,
1227-1229(10thCir. 2000). .......................A2142
Exhibit 151 -Governorof OklahomaExecutive
Order 2001-28(17August 2001). ..................A2147Exhibit 152 - Valdezv. Oklahoma,Order Staying
Execution until furtherOrderof this Court,No.
PCD2001-1011,2001 WL 171585,slip op.
(Okla. Crirn.App. 10September2001). ............A2149
Exhibit 153 -InternationalLaw Commission,
Commentariesto thedraft articles on
ResponsibilityofStatesfor internationally
wrongfulact.s,fifty-thirdsession, 2001,
Supplement'No.10(AM/ 1O),pp. 138-141,
221-222,22'7,235-237.. ................................
Exhibit 154 - Report oftheInternational Law
Commission on thedrap on State responsibility,
document A'48110in 1993Yearbookof the
International Commission, Vol. II, document
A/CN.4/SER.A/1993/Add. 1 (Part 2), pp. 61-67,
81-83 .............................................A2166....
Exhibit 155 - Brownlie,Ian:Principlesof Public
Internationa'lLaw.5thedition. Clarendon Press,
1998,pp. 460-467.. ...............................A2178..
Exhibit 156 -'InternationalLaw Commission,
ThirdReport on StateResponsibilitybyMr.
James Crayford, SpecialRapporteur,
Addendum, documentA/CN.4/507/Add.l,15
A2188
June 2001, paras. 139-143.............................
Exhibit 157 -Tams, ChristianJ.:Consular
Assistance and RightsandRemedies:
Comments on the ICJ'sJudgment in the
LaGrand Case. (EuropeanJournal of
International Law,Vol. 13,No. 5,2002,
November). ......................................A2192....Exhibit 158 - Crawford,James: Revising theDraft
Articles on StateResponsibility. (European
Journal of InternationalLaw, Vol. 10,No.2,
1999,pp. 435, 445-46). ............................A2201
Exhibit 159 - Rosenne, Shabtai: Developments
in the Law of Treaties 1945-1986. Cambridge
University Press, 1989,pp. 164-179.. ..............A2207
Exhibit 160 - Shelton,Dinah: Remedies in
International Human Rights Law. Oxford
University Press, 1999,pp. 171 - 173,294-302.. .... A2226
Exhibit 161 -I/ACourt H.R., Aloeboetoe etal.
Case. Reparations (Art. 63(1) of theAmerican
Conventionon Human Rights), Judgmentof
Sept. 10. 1993. Series C No. 15,paras.45-49.. .... A2241
Exhibit 162 -Quigley,John: LaGrand: A
Challengeto theU.S. Judiciary. (Yale Journal
of InternationalLaw, Vol 27, No. 2,2002,
p. 435) ............................................A2248..
Exhibit 163 -AffaireMartini (Italy v.Venezuela),
2 R.I.A.A.976, 1930 ...............................A2251
Exhibit 164 -"Judicial Decisions", inAmerican
Journal of InternationalLaw, Vol. 25, No.3,
1931,July, pp. 554, 584-85 (providing an
English translation ofthe arbitral awardinthe
Martini case). .....................................A2280..
Exhibit 165 - 1989Yearbook of the International
Law Commission,Vol. 1,Summary recordsof
the meetingsof the forty-first session, document
A/CN.4/SER.A/1989 (2104thMeeting, 18May
1989),pp. 52-55,paras. 1-25.. .....................A2285Exhibit 166 -Mennecke,Martin & Tams,
Christian, "The Right toConsular Assistance
under International Law: The LaGrand Case
Before the InternationalCourt of Justice", in
1999 Germa11Yearbookof International Law,
. A2292
Vol. 42. Dunker & Humblot, 2000, pp. 230-235..
Exhibit 167 - Langbein,John H.: Comparative
Criminal Procedure: Gerrnany. West Publishing
Company, 1977,pp. 68-70.. .......................A2301
Exhibit 168 - IIamaSka,Mirjan: Evidentiary
Barriers to Convictionand Two Modelsof
Criminal Prc~cedure:A Comparative Study.
(University of PennsylvaniaLaw Review, Vol.
A2306
121, 1973,pp. 506-507,520-525). ....................
Exhibit 169 - Weigend,Thomas, "Criminal
Procedures: Comparative~spects", in
Encyclopedia of Crimeand Justice, Vol. 1. 2nd
edition. Gale Group, 2002. (Joshua Dressler
ed.) pp. 444.-449..................................A2311..
Exhibit 170 -:Lensing,Hans, "General
Comments".,in CriminalProcedure: A
Worldwide Study. Carolina Academic Press,
1999. (Craig M. Bradleyed.) pp. 425-429.. .........2320
Exhibit 171 -UnitedStates v.Leon, 468 U.S. 897,
906 (1984)........................................A2327...
Exhibit 172 -UnitedStates v.Payner, 447 U.S.
727, 734 (1980)....................................A2330.
Exhibit 173 -UnitedStates v.Caceres, 440 U.S.
741, 754-755 (1979) ...............................A2333.
Exhibit 174 -Reid v. Covert,354 U.S. 1, 17-19
(1957).............................................A2337....Exhibit 175 -CanadianCharterof Rights and
Freedoms, Art.24.. ...............................A2342.
Exhibit 176 -Rt. HonorableAntonio Lamer:
Protectingthe Administrationof Justice from
Disrepute: The Admissibilityof
Unconstitutionally ObtainedEvidence in
Canada.(Saint LouisUniversity LawJournal,
Vol. 42, 1998,pp. 345-361)........................A2345
Exhibit 177 -InternationalTribunalfor the
Prosecutionof PersonsResponsiblefor Serious
Violations of HumanitarianLaw Committed in
the Tenitory of the FormerYugoslavia since
1991,Rules of Procedure andEvidence, rule95.. .. A2355
Exhibit 178 -Rome Statuteof the International
Criminal Court, 17July 1998,document
NCONF. 18319,article 69.. .......................A2359
Exhibit 179 -Bradley,Craig M.:Mapp Goes
Abroad. (Case WesternReserve Law Review,
Vol. 52,2001, pp. 375-379) .......................A2364
Exhibit 180 - Spencer,J.R., "Evidence", in
European Criminal Procedures. Cambridge
University Press, 2002(MireilleDelmas-Marty
& J.R. Spencer eds.)pp. 594,602-610..............A2368
Exhibit 181 - Bradley, CraigM.: The
Exclusionary Rule inGerrnany.(Harvard Law
Review,Vol. 96, No. 5, 1983,March, pp. 1032,
1062-1066).......................................A2381....
Exhibit 182 - Weigand, Thomas,"Germany", in
Criminal Procedure: A Worldwide Study.
CarolinaAcademic Press, 1999. (Craig M.
Bradley ed.) pp. 187,195..........................A2388Exhibit 183 -Reportof theInternationalLaw
Commissionon the work ofits3fty-third
session, Second Statement ofthe Chairmanof
theDrafting Committee,Mr.Peter Tomka,
2701st meeting, 3 August 2001availableat
http://www.un.org/law/iIc/sessions/53/english/d
c-resp2.pdf........................................A2393...
Exhibit 184 - UnitedNations, OfficialRecordsof
the General Assembly, fify-fifth session, Report
of the International Law Commission on the
workof itsfify-second session,Supplement No.
10(Af5511O),p. 28-30, paras.82-92.. ................397
Exhibit 185 - Damages fromOperationof Smelter
atTrail British Columbia, 15April 1935,United
Statesof America-UnitedKingdom,Treaty
Series 893, Bevans,Vol. 6, pp.60-64 ..............A2406
Exhibit 186 -Gray, ChristineD.:Judicial
Remedies iriInternationalLaw.Clarendon
Press, 1987.,pp. 11-13.............................A2413.
Exhibit 187 -InternationalLawCommission,
ThirdReport onState ResponsibilitybyMr.
James Crawford,Special Rapporteur,document
A/CN.4/50'7,15March 2001,paras. 51-59.. .........2418
Exhibit 188 -Verduzco,AlonsoGomez-Robledo,
"Aspectos de la reparacion enderecho
intemacional", in Temas selectosde derecho
intemacional. 3rd edition. UniversidadNacional
Autonoma de México,1999,pp. 181, 188-195.
(Translation follows.).............................A2424. xxviii
Exhibit 189- Przetacznik,Franciszek: La
responsabilitéde l'Étàtraison des préjudices
de caractèremoralet politique causéà un autre
État. (Revue généraldu droit international
public,Vol. 78, 1974,pp.966-968.. ..................0
Exhibit 190- United StatesDepartrnentof
Justice, Office of JusticePrograms, Bureauof
JusticeStatistics, LawEnforcementStatistics:
SummaryFindings,2000,available ut
http://www.ojp.usdoj.gov/bjs/lawenf.htrn#
Summary ........................................A2446.....
Exhibit 191 -United StatesCensus Bureau,
GeographicComparisonTable:Population,
HousingUnits,Area, andDensity: 2000,
available ut http://factfinder.census.gov/
servlet/BasicFactsTable?~lang=en&~vt~name=
DEC-2000-SF 1-U-GCTPH l-US9&_geo-id=O
1OOOUSA , nnex 23, Exhibit 191..................A2448
Exhibit 192 -United StatesTrade Administration,
Officeof Travel & TourismIndustries,
International Arrivalsto the U.S.:Historical
Visitation1995-2002,2003, April, p. 6,
available ut http://www.tinet.ita.doc.gov/view/
f-2002-04-001 /index.html?ti-cart-cookie=
20031024.091422.30935.. ........................A2451
Exhibit 193-United StatesImmigration and
Naturalization Service,2000Statistical
Yearbookof theImmigrationand Naturalization
Service,2002, September,pp. 234-235 ...............59Exhibit 194 -International Covenanton Civil and
Political Rights, 19December 1966,999
U.N.T.S. 171, 175, 177 ............................A2463
Exhibit 195 - Letter from GeraldGarrett,
Chairman, State of Texas Boardof Pardons and
Paroles, to William H. Taft, IV,The Legal
Adviser, United States Departmentof State, 14
August 2001.. .....................................A2469..
Exhibit 196 - Faulder v. TexasBoard ofPardons
andParoles, et al., No. A 98 CA 801,
Transcript of Evidentiary Hearing,21-22
December 1998.. ..................................A2473.
Exhibit 197 - Diccionario Internacional:
Espafiol/Ingles.2nd edition. Simon & Schuster,
1997,pp. 1109, 1143,and 1174(1997). ............A2478
Exhibit 198 - 'Blackstone,William,Commentaries
on the Lawsof England, Vol4. 15thedition. A.
Strahan, for T. Cadwell and W.Davies, in the
Strand, 1809,pp. *396-397.. .......................A2483
Exhibit 199 -Halsbury, The Lawsof England,
Vol. VI. Butterworth & Company, 1909, p. 404.. . A2487
Exhibit 200 -Lawyers Committeefor Human
Rights, LegalizedInjustice: MexicanCriminal
ProcedureandHumanRights.2001,May -
(Pursuant to Article 50(2) ofthe Court's Rules,
the United States is depositinga copy of this
document with the Registry.)......................
Exhibit 201 -Sinclair, Ian M.:TheVienna
Convention.on the Law of Treaties. Manchester
University Press, 1973,pp. 69-76.....................492 CERTIFICATION
1hereby certify the accuracy of the translations into
English that appear in the Counter-Memorial and its
Annexes. 1also certify that the documents annexed are tme
copies and conform to the original documents.
William H. Taft, IV
Agent of the United States
of America
Counter-Memorial of the United States of America