INTERNATIONAL COURT OF ruSTICE
Peace Palace, 2517 KJ The Hague. Tel: +31 (0)70 302 23 23. Cables: Intercourt,
The Hague. Fax: +31 (0)70 364 99 28. Telex: 32323. E-mail address:
[email protected]. Internet address: http://www.icj-cij.org.
Press Release
Unofficial
No. 2004/16
31 March 2004
Avena and Other Mexican Nationals
(Mexico v. United States of America)
The Court finds that the United States of America bas breached its obligations
to Mr. Avena and 50 other Mexican nationals and to Mexico
under the Vienna Convention on Consular Relations
THE HAGUE, 31 March 2004. Today the International Court of Justice, the principal
judicial organ of the United Nations, delivered its Judgment in the case conceming Avena and
OtherMexicanNationals (Mexico v. United States of America).
In its Judgment, which is final, without appeal and binding on the Parties, the Court, with
regard to the merits of the dispute,
- "finds by fourteen votes to one that, by not informing, without delay upon their detention, the
51 Mexican nationals referred to in paragraph 106(1) above of their rights under Article 36,
paragraph l.Qù, of the Vienna Convention on Consular Relations of24 April1963, the United
States of America breached the obligations incumbentupon it under that subparagraph;
- finds by fourteen votes to one that, by not notifying the appropriate Mexican consular post
without delay of the detention of the 49 Mexican nationals referred to in paragraph 106(2)
above and thereby depriving the United Mexican States of the right, in a timely fashion, to
render the assistance provided for by the Vienna Convention to the individuals concemed, the
United States of America breached the obligations incumbent upon it under Article 36,
paragraph 1.(hl;
- finds by fourteen votes to one that, in relation to the 49 Mexican nationals referred to in
paragraph 106(3) above, the United States of America deprived the United Mexican States of
the right, in a timely fashion, to communicate with and have access to those nationals and to
visit them in detention, and thereby breached the obligations incumbent upon it under
Article 36, paragraph 1.W .nd .(ç}of the Convention;
- finds by fourteen votes to one that, in relation to the 34 Mexican nationals referred to in
paragraph 106(4) above, the United States of America deprived the United Mexican States of
the right, in a timely fashion, to arrange for legal representation of those nationals, and thereby
breached the obligations incumbent upon it under Article 36, paragraph 1 .(ç},of the
Convention; -2-
finds by fourteen votes to one that, by not permitting the review and reconsideration, in the
light of the rights set forth in the Convention, of the conviction and sentences of
Mr. CésarRoberto Fierro Reyna, Mr. Roberto Moreno Ramas and Mr. Osvaldo Torres
Aguilera, after the violations referred to in subparagraph (4) above had been established in
respectof those individuals, the United States of America breached the obligations incumbent
upon it under Article 36, paragraph 2, of the Convention;
finds by fourteen votes to one that the appropriate reparation in this case consists in the
obligation of the United States of America to provide, by means of its own choosing, review
and reconsideration of the convictions and sentences of the Mexican nationals referred to in
subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights
set forth in Article 36f the Convention and ofparagraphs 138 to 141 of this Judgment;
unanimously takes note of the commitment undertaken by the United States of America to
ensure implementation of the specifie measures adopted in performance of its obligations under
Article 36, paragraph 1 (hl, of the Vienna Convention; and finds that this commitment must be
regarded as meeting the request by the United Mexican States for guarantees and assurances of
non-repetition;
unanimously finds that, should Mexican nationals nonetheless be sentenced to severe penalties,
without their rights under Article 36, paragraph 1.{hl,of the Convention having been respected,
the United States of America shall provide, by means of its own choosing, review and
reconsideration of the conviction and sentence, so as to allow full weight to be given to the
violation of the rights set forth in the Convention, taking account of paragraphs 138 to 141 of
this Judgment."
Reasoning of the Court
In its Judgment the Court begins by outlining the history of the case. It recalls that on
9 January 2003 Mexico instituted proceedings against the United States of America in a dispute
conceming alleged breaches of Articles 5 and 36 of the Vienna Convention on Consular Relations
of 24 April 1963 in relation to the treatment of a number of Mexican nationals who had been tried,
convicted and sentenced to death in criminal proceedings in the United States. The original claim
related to 54 such persans, but as a result of subsequent adjustments by Mexico, only 52 individual
cases are involved. On 9 January 2003 Mexico also asked the Court to indicate provisional
measures, and in particular to arder the United States to take all measures necessary to ensure that
no Mexican national was executed pending a final decision of the Court. On 5 February 2003 the
Court unanimously adopted an Order indicating such measures, stating inter alia that the "United
States of America shall take all measures necessary to ensure that Mr. CésarRoberto Fierro Reyna,
Mr. Roberto Moreno Ramas and Mr. Osvaldo Torres Aguilera ... are not executed pending final
judgment in these proceedings."
The Court then examines four objections of the United States to the Court's jurisdiction and
five to the admissibility of the claims of Mexico. It rejects those objections after first having
rejected the objection of Mexico to the admissibility of the United States objections.
Ruling on the merits of the case, the Court first addresses the question of whether the
52 individuals concemed had Mexican nationality only, or whether sorne of them were also United
States nationals,as claimed by that State. Concluding that the United States has not proved that
claim, the Court finds that the United States did have obligations (to provide consular information)
under Article 36, paragraph 1 (hl, of the Vienna Convention towards the 52 Mexican nationals.
The Court then examines the meaning of the expression "without delay" used in
paragraph 1 (hl of Article 36. It finds that the duty to provide consular information exists once it is - 3 -
realized that the person is a foreign national, or once there are grounds to think so, but considers
that, in the light inter alia of the Convention's travaux préparatoiresthe term "without delay" is not
necessarily to be interpreted as meaning "immediately upon arrest". The Court then concludes that,
on the basis of this interpretation, the United States has nonetheless violated its obligation to
provide consular notification in all of the cases save one.
The Court then takes note of the interrelated nature of the three subparagraphs .(ru,.(hland.(0
ofparagraph 1 of Article 36 of the Vienna Convention and finds, in 49 of the cases, that the United
States has also violated its obligation under subparagraph (ru to enable Mexican consular officers to
communicate with, have access to and visit their nationals; while, in 34 cases, it finds that the
United States has also, in addition, violated its obligation under subparagraph .(0 to enable
Mexican consular officers to arrange for legal representation of their nationals.
The Court then turns to Mexico's subrnission in relation to paragraph 2 of Article 36,
whereby it claims that the United States violated its obligations under that paragraph by failing to
provide "meaningful and effective review and reconsideration of convictions and sentences
impaired by a violation of Article 36 (1)", inter alia as a result of the operation of the "procedural
default" rule. The Court begins by observing that the procedural default rule has not been revised
since it drew attention in its Judgment in the LaGrand case to the problems which its application
could cause for defendants who sought to rely on violations of the Vienna Convention in appeal
proceedings. The Court finds that in three cases paragraph 2 of Article 36 has been violated by the
United States, but that the possibilityof judicial re-examination is still open in 49 of the cases.
Tuming to the legal consequences of the above-found breaches and to what legal remedies
should be considered, the Court notes that Mexico seeks reparation in the form of "restitutio in
integrum", that is to say partial or total annulment of conviction and sentence, as the "necessary
and sole remedy". The Court, citing the decision of its predecessor, the Permanent Court of
International Justice, in the Chorz6w Factory case, points out that what is required to make good
the breach of an obligation under international law is "reparation in an adequate form". Following
its Judgment in the LaGrand case the Court finds that in the present case adequate reparation for
violations of Article 36 should be provided by review and reconsideration of the convictions and
sentences of the Mexican nationals by United States courts.
The Court considers that the choice of means for review and reconsideration should be left to
the United States, but that it is to be carried out by taking account of the violation of rights under
the Vienna Convention.
The Court then addresses the function of executive clemency. Having found that it is the
judicial process that is suited for the task of review and reconsideration, the Court finds that the
clemency process, as currently practised within the United States criminal justice system, is not
sufficient in itself to serve that purpose, although appropriate clemency procedures can supplement
judicial review and reconsideration.
Finally, with regard to Mexico's request for the cessation of wrongful acts by the United
States, the Court finds no evidence of a "regular and continuing" pattern of breaches by the United
Statesof Article 36 of the Vienna Convention. And asto its request for guarantees and assurances
of non-repetition the Court recognizes the United States efforts to encourage implementation of its
obligations under the Vienna Convention and considers that that commitment by the United States
meets Mexico's request.
At the end of its reasoning, the Court emphasizes that, in the present case, it has been
addressing issues of principle from the viewpoint of the general application of the Vienna
Convention. It observes that, while the present case concerns only Mexicans, its Judgment cannot
be taken to imply that the Court's conclusions do not apply to other foreign nationals finding
themselves in similar situations in the United States. -4-
The Court finally points out that its Order of 5 February 2003 indicating provisional
measures mentioned above, according to its terms and to Article 41 of the Statute, was effective
pending final judgment, and that the obligationsf the United States in that respect are, with effect
from the date of the Judgment, replaced by those declared in this Judgment. The Court observes
that it has found in relation to the three persons concemed in the Order (among others), that the
United States has committed breaches of its obligations under Article 36, paragraph 1, of the
Vienna Convention; and that moreover, in respect of those three persons alone, the United States
has also committed breaches of Article 36, paragraph 2. The review and reconsideration of
conviction and sentence required by Article 36, paragraph 2, which is the appropriate remedy for
breaches of Article 36, paragraph 1, has not been carried out. The Court considers that in these
three cases it is for the United States to find an appropriate remedy having the nature of review and
reconsideration according to the criteria indicated in the Judgment.
Composition of the Court
The Court was composed as follows: President Shi; Vice-President Ranjeva;
Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
Registrar Couvreur.
President Shi and Vice-President Ranjeva append declarations to the Judgment of the Court;
Judges Vereshchetin, Parra-Aranguren and Tomka and Judge ad hoc Sepulveda append separate
opinions to the Judgment of the Court.
A summary of the Judgment is published in the document entitled "Summary No. 2004/1",
to which summaries of the declarations and opinions attached to the Judgment are annexed. The
present Press Release, the summary and the full text of the Judgment also appear on the Court's
website under the"Docket" and "Decisions" headings (www.icj-cij.org).
Information Department:
Mr. Arthur Witteveen, First Secretaryof the Court (tel.: +31 70 302 2336)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (tel.: +31 70 302 2337)
E-mail address: [email protected]
Avena and other Mexican Nationals (Mexico v. United States of America) - The Court finds that the United States of America has breached its obligations to Mr. Avena and 50 other Mexican nationals and to Mexico under the Vienna Convention on Consular Relations