INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
2003/2 No. Summary
Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America)
Request for the indication of provisional measures
The Court begins by recalling that, on 9January2003, the United Mexican States
(hereinafter “Mexico”) instituted proceedings agains t the United States of America (hereinafter the
“United States”) for “violations of the Vienna Convention on Consular Relations (done on
24April1963)” (hereinafter the “Vienna Convention”) allegedly committed by the United States.
The Court notes that, in its Application, Mexico ba ses the jurisdiction of the Court on Article36,
paragraph1, of the Statute of the Court and on ArticleI of the Optional Protocol concerning the
Compulsory Settlement of Disputes, which accom
Relations (hereinafter the “Optional Protocol”).
The Court notes further that in its Application Mexico asks the Court to adjudge and declare:
“(1) that the United States, in arresting, detaining, trying, convicting, and sentencing
the 54 Mexican nationals on death row described in this Application, violated its
international legal obligations to Mexico, in its own right and in the exercise of its
right of consular protection of its nationals, as provided by Articles5 and 36,
respectively of the Vienna Convention;
(2) that Mexico is therefore entitled to restitutio in integrum;
(3) that the United States is under an in ternational legal obligation not to apply the
doctrine of procedural default, or any other doctrine of its municipal law, to
preclude the exercise of the rights
Convention;
(4) that the United States is under an in
conformity with the foregoing international legal obligations any future detention
of or criminal proceedings against the 54 Mexican nationals on death row or any
other Mexican national in its territory,
executive, judicial or other power, whether that power holds a superior or a
subordinate position in the organization of the United States, and whether that
power’s functions are international or internal in character; - 2 -
(5) that the right to consular notification under the Vienna Convention is a human
right;
and that, pursuant to the foregoing international legal obligations,
(1) the United States must restore the status quo ante, that is, re-establish the situation
that existed before the detention of, proceedings against, and convictions and
sentences of, Mexico’s nationals in viol ation of the United States international
legal obligations;
(2) the United States must take the steps necessary and sufficient to ensure that the
provisions of its municipal law enable full effect to be given to the purposes for
which the rights afforded by Article 36 are intended;
(3) the United States must take the steps necessary and sufficient to establish a
meaningful remedy at law for violations of the rights afforded to Mexico and its
nationals by Article36 of the Vienna Convention, including by barring the
imposition, as a matter of municipal law, of any procedural penalty for the failure
timely to raise a claim or defence based on the Vienna Convention where
competent authorities of the United States have breached their obligation to
advise the national of his or her rights under the Convention; and
(4) the United States, in light of the pattern and practice of violations set forth in this
Application, must provide Mexico a fu ll guarantee of the non-repetition of the
illegal acts.”
The Court further recalls that on 9January 2003 Mexico also submitted a request for the
indication of provisional measures in order to protect its rights, asking that, pending final judgment
in this case, the Court indicate:
“(a) That the Government of the United States take all measures necessary to ensure
that no Mexican national be executed;
(b) That the Government of the United States take all measures necessary to ensure
that no execution dates be set for any Mexican national;
(c) That the Government of the United States report to the Court the actions it has
taken in pursuance of subparagraphs (a) and (b); and
(d) That the Government of the United States ensure that no action is taken that
might prejudice the rights of the United Mexican States or its nationals with
respect to any decision this Court may render on the merits of the case.”
The Court finally notes that, by a letter of 20 January 2003, Mexico informed the Court that,
further to the decision of the Governor of the State of Illinois to commute the death sentences of all
convicted individuals awaiting ex ecution in that State, it was withdrawing its request for
provisional measures on behalf of three of the 54 Me xican nationals referred to in the Application:
Messrs. Juan Caballero Hernández, Mario FloresUrbán and GabrielSolacheRomero. In that
letter, Mexico further stated that its request for provisional measures would stand for the other
51Mexican nationals imprisoned in the United States and that “[t]he application stands, on its
merits, for the fifty-four cases”. - 3 -
The Court then summarizes the arguments put forward by the Parties during the public
hearings held on 21 January 2003.
*
The Court begins its reasoning by observing that, on a request for the indication of
provisional measures, it need not finally satisfy itsel f, before deciding whether or not to indicate
such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless
the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the
jurisdiction of the Court might be founded.
The Court goes on to note that Mexico has ar gued that the issues in dispute between itself
and the United States concern Articles5 and 36 of the Vienna Convention and fall within the
compulsory jurisdiction of the Court under Article I of the Optional Protocol, and that Mexico has
accordingly concluded that the Court has the juri sdiction necessary to indicate the provisional
measures requested. The Court notes that the United States has said that it “does not propose to
make an issue now of whether the Court possesses prima facie jurisdiction, although this is without
prejudice to its right to contest the Court’s jurisdiction at the appropriate stage later in the case”. In
view of the foregoing, the Court accordingly considers that, prima facie, it has jurisdiction under
Article I of the aforesaid Optional Protocol to hear the case.
The Court then recalls that in its Applicatio n Mexico asked the Court to adjudge and declare
that the United States “violated its international le gal obligations to Mexico, in its own right and in
the exercise of its right of consular protection of its nationals, as provided by Articles5 and 36,
respectively of the Vienna Convention”; that Mexico is seeking various measures aimed at
remedying these breaches and avoiding any repetition thereof; and that Mexico contends that the
Court should preserve the right to such remedi es by calling upon the United States to take all
necessary steps to ensure that no Mexican national be executed and that no execution date be set in
respect of any such national.
The Court further recalls that the United States has acknowledged that, in certain cases,
Mexican nationals have been pros ecuted and sentenced without being informed of their rights
pursuant to Article 36, paragraph 1 (b) , of the Vienna Convention, but that it argues, however, that
in such cases, in accordance with the Court’s Judgment in the LaGrand case, it has the obligation
“by means of its own choosing, [to] allow the review and reconsideration of the conviction and
sentence by taking account of the violation of the rights set forth in that Convention”, and that it
submits that, in the specific cases identified by Mexico, the evidence indicates the commitment of
the United States to providing such review and re consideration. According to the United States,
such review and reconsideration can occur through the process of executive clemency ⎯ an
institution “deeply rooted in the Anglo-American system of justice” ⎯ which may be initiated by
the individuals concerned after the judicial proce ss has been completed. It contends that such
review and reconsideration has already occurred in several cases during the last two years; that
none of the Mexicans “currently under sentence of death will be executed unless there has been a
review and reconsideration of the conviction and se ntence that takes into account any failure to
carry out the obligations of Article36 of the Vi enna Convention”; that, under the terms of the
Court’s decision in the LaGrand case, this is a sufficient remedy for its breaches, and that there is
accordingly no need to indicate provisional measures intended to preserve the rights to such
remedies.
The Court also notes that, according to Mexico , the position of the United States amounts to
maintaining that “the Vienna Convention entitles Me xico only to review and reconsideration, and
that review and reconsideration equals only the ability to request clemency”; and that, in Mexico’s - 4 -
view, “the standardless, secretive and unreviewable process that is called clemency cannot and
does not satisfy this Court’s mandate [in the LaGrand case]”.
The Court concludes that there is thus a dispute between the Parties concerning the rights of
Mexico and of its nationals regarding the remedies that must be provided in the event of a failure
by the United States to comply with its obligati ons under Article36, paragraph1, of the Vienna
Convention; that this dispute belongs to the me rits and cannot be settled at this stage of the
proceedings; and that the Court must accordingly address the issue of whether it should indicate
provisional measures to preserve any rights that may subsequently be adjudged on the merits to be
those of the Applicant.
The Court notes, however, that the United States argues that it is incumbent upon the Court,
pursuant to Article41 of its Statute, to indicate provisional measures “not to preserve only rights
claimed by the Applicant, but ‘to preserve the respective rights of either party’”; that, “[a]fter
balancing the rights of both Parties, the scales tip decidedly against Mexico’s request in this case”;
that the measures sought by Mexico to be implemented immediately amount to “a sweeping
prohibition on capital punishment for Mexican nationa ls in the United States, regardless of United
States law”, which “would drastically interfere wi th United States sovereign rights and implicate
important federalism interests”; that this would, moreover, transform the Court into a “general
criminal court of appeal”, which the Court has already indicated in the past is not its function; and
that the measures requested by Mexico should accordingly be refused.
The Court points out that, when considering a request for the indication of provisional
measures, it “must be concerned to preserve . . . the rights which may subsequently be adjudged by
the Court to belong either to the Applicant or to the Respondent”, without being obliged at that
stage of the proceedings to rule on those rights; that the issues brought before the Court in this case
“do not concern the entitlement of the federal states within the United States to resort to the death
penalty for the most heinous crimes”; that “the function of this Court is to resolve international
legal disputes between States, inter alia when they arise out of the interpretation or application of
international conventions, and not to act as a court of criminal appeal”; that the Court may indicate
provisional measures without infringing these principles; and that the argument put forward on
these specific points by the United States accordingly cannot be accepted.
The Court goes on to state that “provisional measures are indicated ‘pending the final
decision’ of the Court on the merits of the case, a nd are therefore only justified if there is urgency
in the sense that action prejudicial to the rights of either party is likely to be taken before such final
decision is given”. It further points out that the jurisdiction of the Court is limited in the present
case to the dispute between the Parties concerning the interpretation and a pplication of the Vienna
Convention with regard to the individuals which Mexico identified as being victims of a violation
of the Convention. Accordingly, the Court obse rves, it cannot rule on the rights of Mexican
nationals who are not alleged to have been victims of a violation of that Convention.
The Court further states that “the sound admi nistration of justice requires that a request for
the indication of provisional measures founded on Article 73 of the Rules of Court be submitted in
good time”; it recalls in this respect that the Supreme Court of the United States, when considering
a petition seeking the enforcement of an Order of this Court, observed that: “It is unfortunate that
this matter came before us while proceedings are pending before the ICJ that might have been
brought to that court earlier”. The Court further ob serves that, in view of the rules and time-limits
governing the granting of clemency and the fixing of execution dates in a number of the states of
the United States, the fact that no such dates have been fixed in any of the cases before the Court is
not per se a circumstance that should preclude the Court from indicating provisional measures.
The Court finds that it is apparent from the information before it in this case that three
Mexican nationals, MessrsC . ésar Roberto Fierro Reyna, Roberto Moreno Ramos and
OsvaldoTorres Aguilera, are at risk of execution in the coming months, or possibly even weeks; - 5 -
that their execution would cause irreparable prej udice to any rights that may subsequently be
adjudged by the Court to belong to Mexico. The Court accordingly concludes that the
circumstances require that it indicate provisional measures to preserve those rights, as Article 41 of
its Statute provides.
The Court points out that the other individuals listed in Mexico’s Application, although
currently on death row, are not in the same positio n as the three persons identified in the preceding
paragraph and that the Court may, if appropriate, indicate provisional measures under Article 41 of
the Statute in respect of those individuals before it renders final judgment in this case.
The Court finally observes that it is clearly in the interest of both Parties that their respective
rights and obligations be determined definitively as early as possible; and that it is therefore
appropriate that the Court, with the co-operation of the Parties, ensure that a final judgment be
reached with all possible expedition.
The Court concludes by pointing out that the decision given in the present proceedings in no
way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any
questions relating to the admissibility of the Applica tion, or relating to the merits themselves; and
that it leaves unaffected the right of the Governments of Mexico and the United States to submit
arguments in respect of those questions.
*
The full text of the operative paragraph (para. 59) reads as follows:
“For these reasons,
T HE C OURT ,
Unanimously,
I. Indicates the following provisional measures:
(a)The United States of America shall take all measures necessary to ensure that Mr.César
Roberto Fierro Reyna, Mr. Roberto Moreno Ramo s and Mr. Osvaldo Torres Aguilera are not
executed pending final judgment in these proceedings;
(b) The Government of the United States of Americ a shall inform the Court of all measures taken
in implementation of this Order.
DeII.ides that, until the Court has rendered its final judgment, it shall remain seised of the
matters which form the subject of this Order.”
___________ Annex to Press Communiqué 2003/2
Declaration of Judge Oda
While Judge Oda voted in favour of the present Order, in his declaration he states his doubts
concerning the Court’s definition of “disputes arising out of the interpretation or application” of the
Vienna Convention, doubts previously expressed in connection with the Breard and LaGrand cases.
In Judge Oda’s view, the present case is essentially an attempt by Mexico to save the lives of
its nationals sentenced to death by domestic courts in the United States. As the United States has
admitted its failure to provide consular notificati on, there is no dispute about the interpretation or
application of the Vienna Convention. Judge Oda believes that Mexico has seized upon the Vienna
Convention and the admitted violation as a means to subject the United States to the compulsory
jurisdiction of the Court.
Judge Oda notes that the Mexican nationals were in most cases given consular assistance in
the judicial processes that followed their initial sent encing. He stresses that this case cannot be
about domestic legal procedure in the United States because th at lies within the sovereign
discretion of that country. Nor can it be about the interpretation or application of the Vienna
Convention because the United States admits its violation. Nor can the case be about the
appropriate remedy for the violation of the Co nvention because that is a matter of general
international law, not the interpretation or application of the Convention. Judge Oda concludes that
this case is really about abhorrence of capital punishment.
Judge Oda states that if the International Court of Justice interferes in a State’s criminal law
system, it fails to respect the sovereignty of the State and places itself on a par with the supreme
court of the State. He recalls his observation from the LaGrand case that the International Court of
Justice cannot act as a court of criminal appeal and cannot be petitioned for writs of habeas corpus .
Further, the present case, having been brought under the Vienna Convention, is not the appropriate
context to determine whether or not capital punishment would be contrary to Article6 of the
International Covenant on Civil and Political Rights.
Appreciating the significant issu es raised by the death penalty from the perspective of the
individuals condemned to die, Judge Oda reiterates his previous statement that if the rights of those
accused of violent crimes are to be respected, then the rights of the victims should also be taken
into consideration.
___________
Summary of the Order of 5 February 2003