Case Conceming the Vienna Conventionon Consular Relations
(United Mexican Statesv. United StatesofAmenca)
REQUEST FORTHEINDICATIONOF
PROVISIONAL MEASURES OF PROTECTION
SUBMJTTED BYTHEGOVERNMENT OF
THE UNITEDMEXICANSTATES
The Hague,9 January 2003
1. Ihave thehonor to refer to theApplication submitted to the Court this day
instituting proceedings in thename of the United Mexican States against the
Government of the United Statesof Amenca. ln accordancewith article41 of the
Statuteof the Court and article73, 74,and 75 of the Rulesof Court,1 hereby
respectfully submit an urgent requestthat the Court indicate provisional rneasures
to preserve therïghtsof the UnitedMexican States.
2. The Court hasjurisdiction pursuantto article1of the Optional Protocol
Concerning the CompulsorySettlernentof Disputes to the ViennaConvention on
Consular Relations.
3. Asmore fully set forth in theaccompanyingApplication, Mexicoand its nationals
have been subject to systematic violationby the United Statesof theirghts under
article36 of the Vienna Convention. To Mexico'sknowledge,no fewer than
fifty-fourof its nationals have beenarrested,detained,tried, andconvicted of
capitalcrimes and are now presently under a sentenceof death as a result of
proceedings conducted by competcntauthonties of the UnitedStatesthat violated
their obligations under article36(l)(b)the Convention.
4. In each of those cases, the violations preventedMexico Fromexercising itsrights
and performing its consular functionsunder articles 5 and 36, respectively, of the
Convention. Mexico was thereby prevented fromprotecting itsown interests and
those of its nationals as contemplatby those articles.5. Within the next sixmonths,three Mexicannationals - César RobertoFierro
Reyna, Roberto Moreno Ramos, and OsbaldoTorres - will face executionunless
the Court indicates provisional measures. Mr. Fierrocould receive anexecution
date as early as February 2003, Mr. MorenoRamos asearly as Apnl2003, and
Mr. Torres as early asJuly 2003. Severalother Mexican nationalscould be
scheduled for execution beforethe end of 2003.
6 CésarRoberto Fierro Reynacurrently faces the most imminentthreat of
execution. Mr. Fierro is incarcerateunder sentenceofdeath in the stateof
Texas, which has executed morepersonsthan anyother state of the UnitedStates.
His case is currently pending beforethe UnitedStates SupremeCourt ona
petition for wnt of certiorari, the grant or denial of which, as well as the timing
of any such disposition, lies within thecompletediscretionof that Court. Should
the Court deny his petition,Texas prosecutorswould be expected promptly to
seek the setting of an execution dateom the competentTexas court.
7. Under Texas law, the Texas court mayset an execution dateas early as thirty days
from the date of the order. Hence,dependingon the United StatesSupreme
Court's disposition of the Mr.Fierro'spetition,he could be subject to execution
as early as February 4, 2003.
THE AUTHORIT Y F THE COURT
8. Article 41(1)of the Statuteof the Court vests the Court with "powerto indicate, if
it considersthat circumstances sorequire, any provisional measureswhich ought
to betaken to preserve the respectiverights of either party" pending a final
judgment in the case. Ordersof provisional measurespursuant to article41
establish binding obligations. LaGrand (Germany v.UnitedStates ofAmerica),
Mcrits,Judgment of2 7Junc 21101 ,ara. 109.
9. The Court has indicated provisional measuresto prevent executions in two prior
cases involving claimsbroughtunder the ViennaConvention by States whose
nationals were subject to execution inthe United Statesas a result of state
criminal proceedings conductedin violationof the Convention. In the Case
Conccrning the Vienna Conven &ionon Consular Relations (Paraguay v.United
States ofAmerica), Order of 9April 1998,the Court indicated provisional
measures to prevent the imminentexecutionofthe Paraguayan nationalAngel
Francisco Breard pending the finaljudgment on the merits, and in theLaGrand
case (Germany v. UnitedStatcsofAmerica), Order of3March 1999,the Court
afforded the same relief to preventthe executionof the German national Walter
LaGrand.tO. There can be no question of the importanceof theinterests at stake. International
law recognizes the sanctityof human life. Article 6 of the InternationalCovenant
on Civil and Political Rights,to which the UnitedStates is a StateParty,
establishes that everyhuman being has an inherent right to life andmandates that
Statesprotect that rightby law.
11. Mexico brings this application toremedy the depnvation of its consular
notification rights and thosof its nationals instate criminal proceedingsin the
United Statesthat resultedinthe impositionof the death penaltyon those
Mexican nationals. The purpose of the consular notificationprovisionsof the
Vienna Convention isto allow consularofficials of the sendingState to render
assistance to nationalsdetained by çompetent authoritiesof the receiving State.
That purpose is most compellingwhen the national is detainedon charges for
which he or she might be subject to the death penalty.
Unless the Court indicates provisionalmeasures directing theUnited States to halt
any executionsof Mexican nationals until thisCourt'sdecision on the merits of
Mexico's clairns, theexecutiveofficialsof constituentstatesofthe United,States
will execute Messrs. Fierro,MorenoRamos, Torres, or other Mexicannationals
on death row before the Court hashad the opportunity to considerthose claims.
In that event, Mexico wouldforeverbe deprived of the opportunityto vindicate its
rights and those of its nationalsAs the Court recognized in theLaGrand case,
such circumstances would constiiuteirreparableprejudice. LaGrand (Germany 1).
UnitedStates ofAmerica), Order of3 March 1999, para. 24; Judgmentof 27 Junc
2001, para.57;see also Case Concerningthe ViennaConvention,Order of 9
April 1998, para. 37.
13. Compared with the irremediablelossof a human life, any prejudice that the
United Statesmight sufferby a delay in an execution wouldbe inconsequential.
At rnost, the UnitedStateswould need toforbear fromexecuting Mexican
nationals duringthe pendency of theseproceedings. Al1 of thenationals would
remain incarcerated and subjectto execution if the Court subsequentlydenied
Mexico relief Indeed,some of the Mexican nationals subject to execution have
already been on death row for as long as ten, even twenty, yearsA further delay
equal to the iengtof the proceedings beforethis Court couldhardly constitute a
hardship to the United States.
14. Provisional measures arethereforeclearlyjustified in order both to protect
Mexico's paramount interest inthe life andliberty of its nationals andto ensure
the Court's abilityto order the relief Mexicoseeks. Indeed, theCourt's
indicationsof provisional measuresinthe Case Concerningfhe Vienna
Convention and theLaGrand case unequivocallysupport Mexico'sright to
provisional measureshere.15. There can also be no question about the urgencyof the need for provisional
measures. Mexico recognizes that at the time of the applications inthe Case
Concerningrhe ViennaConvention and theLaGrand case,nationals ofthe States
seeking provisional measures weresubject to imminent executionon dates
already established. In both ofthose cases,the Court thereforehad to act, and did
act, with the utmost dispatch. On Paraguay'srequest in the Case Concerningthe
ViennaConvcnfion, the Court indicated provisional measureswithin six days. On
Germany'srequest in the LaGrarzd case, the Court indicated provisionalmeasures
within twenty-four hours.
6 The Court observed inthe LaGrand case, however, that"the sound administration
ofjustice requires thata request for the indicationof provisionalmeasures
foundedon Article 73 of the Rules of Courtbe submittedingood time." Order of
3 March 1999, para.19. Mexico concurs. Mexico therefore submits thisRequest
at a time that will allowthe Court to give it full andunhumed consideration.
Mexico also considersit critical that the Court indicate provisionalmeasures at a
time thatwill give the United States ample opportunityto implement theCourt's
order. The Court willrecall that onthe occasionsof its ordersof provisional
measuresin the Case Concerningthe ViennaConventionand the LaGrand case,
respectively, the United States took the positionthat an indicationof provisional
measuresby this Court pursuant toarticle41 did not impose a binding legal
obligation. LaGrand, paras. 33, 112. The Courthas now clearly established to
the contrary. Id., para.109. The Court should thereforeschedule proceedingson
Mexico's Request ata time that will allowthe United States,should the Court
order provisional measures, to takeanyand al1steps necessaryto prevent the
executions at which the provisional measures wouldbe aimed.
18. Mexicorespectfully requests that pending finaljudgment in this case,the Court
indicate provisional measures orderingthe United Statesto take measures
sufficient toensure that no Mexican nationalbe executedand that no date for the
execution of a Mexican national beset. Becausein eachof the cases that are the
subject of the Request, the death penalty has been imposedas aresult of cnminal
proceedings conductedby one of the constituentStatesof the United States,
compliance with anyorder by this Court willrequireactionby state authorities,
federal authorities or both.
19. As a matter of international law, both the United Statesand itsconstituent
political subdivisions have an obligation tobideby the internationallegal
obligationsof the United States; as amatterof United Statesmunicipal law, both
state and federal authoritieshave both the obligation andeans to ensure compliance with any order that thisCourtmight issue. Hence, while Mexico
recognizes that theCourt may wish to leave to the United Statesthe choice of
means, Mexico respectfuilyrequests that the Courtleave no doubt asto the
required result.
20. It is a fundamental principle of international law thatapolitical subdivisionof a
federal State may engagethe intemationai responsibilityof the State. Article 4 of
the Drafi Articles on Responsibilityof States for InternationallyWrongful Acts
provides:
The conduct of any Stateorgan shall be consideredan act
of that Stateunder internationalIaw,whether theorgan
exercises legislative. executive,judicial or anyother
functions, whatever position itholds in the organizationof
the State, and whateverits character as an organof the
central govenunent or of a territorial unit of the State.
Seealso Dzserence Relating to Immuni@fromLegalProcess ofa Special
Rapportetirof the Commission on HumanRights,Advisory Opinion,I.C.J.
Reports 1999, p. 62, 87, para. 62. The Courtexpressly incorporated this principle
in itsorder of provisional measuresin LaGrandby observing that "the
international responsibility ofa Stateis engaged by the action of the competent
organs and authorities acting in thatState" andtherefore that "the Governor of
Arizona is under the obligation to act in conforrnity with the international
undertakings of the United States." Orderof3March 1999, IC.J. Reports 1999,
p.9. 16.para. 28: see also L,nGrand, Merits,Judgment of 27 June2001, para. 113.
21. The text of the Vienna Conventionitself reinforces thispoint. The Convention
expressly imposes obligations on the "competentauthonties" of a State party
without regard to whether those authorities acton behalf of the national
governent of the Stateparty or ofoneof its political subdivisions. Having
undertaken international obligationson behalf of its constituentpolitical entities,
the United States should not nowbe heard to suggest that it cannot enforce their
compliance with its obligations.
22. It is an equally fundamentalprincipleof United States constitutional law that
treatiesmade by the President with the advice and consent of the Senateestablish
paramount federal Iaw that ovenides inconsistent state law. Specifically,the
United States Constitutionprovidesthat "al1Treaties made, or which shallbe
made, under the Authority of theUnited States, shallbe the supreme Lawof the
Land, . ..any Thing in the Constitutionor Lawsof any Stateto the Contrary
notwithstanding." U.S. Const., art. 6c1.2. Because the UnitedStateshas ratified the U.N. Charterand the Statute ofthe
Court, orders of this Court within itsjurisdiction enjoythe samestatus as
"supreme Law" as any other treaty obligation under United Statesmunicipal law.
See Foster v.Neilson, 27 U.S. (2 Pet.) 253,314 (1829); Louis Henkin, Foreign
Aflairs and the United States Constitution199(2ded. 1996). The SupremeCourt
has repeatedly affirmedthe supremacyof federal treatyobligations in the faceof
inconsistent state law.See, e.g.,UttitedStates1,.Pink 3,15 U.S. 203, 230-31
(1942); UnitedSratcs ilBelmorrt,301 U.S.324,331-332 (1937); Asakura v.
Seattle,265 U.S. 332 (1924).
24. Given the clarityof both internationallaw and UnitedStatesmunicipal law,there
can be no doubt that the UnitedStates has the means to ensure cornpliance withan
order of provisional measures issuedby this Court pursuantto article41(1). See
generally Louis Henkin, Prosisional Measurcs, U.S. Treav Obligations, and the
States, 92 Am. J. Int'l L. 679(1998).
25. First, the United States Constitutionprovides that "theJudges inevery State shall
be bound" by federaltreaties as a component ofsupreme federal law. U.S.
Const., art. 6, cl. 2. Hence, state courtes have the obligation andthe
authority directly tonforce United States treaty obligationsSeeKolovrat v.
Oregon, 366 U.S. 187, 198 (1961) (holdingthat state courts must givefull force
and effect toUnitedStates treaties)see also Maldonado 11State oJTexas, 998
S.W.2d 239,247 (Tex. Crim. App. 1999)("Underthe Supremacy Clauseof the
United States Constitution, statesmust adhereto United Statestreaties and give
them the same force and effectas any other federallaw.")
26. Second, as the Court recognized in theLaGrand case,para. 113,govemors of the
constituent statesof the United States generallyhave the authonty to stay or
commute cnminal sentences. Either the govemor or the state clemencyboard is
authorized to grant stays or commute death sentencesin al1of the states on which
Mexican nationalspresently remainon death row. Inparticular,the Constitutions
of both Texas and California, two states in which a substantial numberof
Mexican nationals havebeen sentenced todeath, grant their respective governors
or clemency boards this authority.Sec California Const.. artV, 4 8(a);Texas
Const., art.V, tj 1(b);see also Carlos ManuelVazquez, Breard andtheFederal
Power to Require Cornpliancewith ICJ Orders ofProvisiona1Measures, 92 Am.
J.Int'l L683, 685 (1998); Henkin. 92 Am. J. Int'l L. at 683.
27. Third,asthe Court also recognizedin the LaGrand case, para. 114,United States
federal courts, includingthe United States SupremeCourt, havethe authorityto
enforce federal law, including international law, againststatejudicial and
executive authoritiesby issuing a stay of execution. See,cg.,All Writs Act, 28
U.S.C. Ij1651(providing that the "Supreme Courtand al1courts establishedby Act of Congress may issue al1wnts necessary and appropnate in aid of their
respectivejurisdictions");see also Asakura v.Seattle,265 U.S. 332 (1924)
(enjoining enforcement of municipal ordinance in violationof treaty); Frenchv.
Huy, 89 U,S. (22 Wall.) 250 (federai court may enjoinenforcementof state
judgrnent entered in violationof federal law).
28. Fourth, the Presidenthas the authority to issuean executiveorderdirecting
federal and state authonties to comply with federallaw,includinginternational
law. See, cg., Dames & Moorc v.Regnn, 453 U.S. 654(1981) (upholding
executive authorityto enter intoAlgiers Accords settlingIranianhostage crisis
and transfemng, pursuant to Accords, cases pendinginUnited States courts to
Iran-United StatesClaims Tribunal:). Hence,here the President, inthe exercise of
his constitutional responsibilityto "take Care that the Lawsbe faithfully
executed," U.S. Const., art.2,Ej3, wouid have the authority,ifnecessary, to issue
an executive order to state or other authoritiesin orderto ensurefull compliance
with provisional measuresordered by this Court. Sec Vazquez,92 Am. J. Int'l L.
at685-86; Henkin,92 Am. J. Int'l L. at 683. Indeed,adeclaration of the foreign
policy of the federal government generally binds stategovements even in the
absence of a forma1executive order or legislativemandate. Henkin,92 Am. J.
Int'l L. at 682 (citiExparte Peru, 318 U.S. 578, 589(1943),and Republic of
Mexico v. Hoflman, 324U.S. 30, 38(1945)).
29. Finally, if state or other competent authorities refusetocomply with provisional
measures ordered by this Court, the Attorney General ofthe UnitedStates has the
authority to bring suit againstthose authoritiesto enforceparamount treaty
obligations under international law. Sce UnitedStates v. CountyofArlington, 669
F.2d925, 928-29(4th Cir.). cerf.dcnied, 459 U.S. 801(1982); UnitedStates v.
Cityof Glen Cove, 322 F.Supp. 149, 152(E.D.N.Y.), afdper curiam, 450 F.2d
884(1971); cf SanitaryDist. ofChicago v. UnitcdStates, 266 U.S.405,425-26
(1925); see alsoHenkin, p. 681. In itsamicuscuriae briefto theUnited States
Supreme Court in Breard v.Greene, the UnitedStatesexpresslyasserted "the
abilityof the United States to sue inrder to enforcecompiiance withthe Vienna
Convention." Bnef for the United States as Amicus Curiae, Breard v.Greene,
523U.S. 371 (1998), at 15n. 3.
30. To repeat, while the Court maywish toleave the choiceof means to the United
States,it should make explicit the required result: No Mexicannational should be
executed in the UriitedStates untilthisCourt determinesMexico'sclaims on the
merits.31. On behalf of the Govemment of the UnitedMexican States,actingon its own
behalf and in the exercise of thediplornatic protectionof its nationals1 therefore
respectfully request that, pending finaljudgrnent in this case, theCourt indicate:
a. That the Governmentof the UnitedStatestake al1measures
necessary to ensure that noMexicannational beexecuted;
That the Govemment of the UnitedStates take al1measures
b.
necessary to ensure that no execution datesbe set for any Mexican
national;
c. That the Governmentof the United States report tothe Court the
actions ithas taken inpursuanceof subparagraphs(a) and (b);and
d. That the Governrnentof the UnitedStatesensure that no actionis
taken that might prejudicethe rights ofthe United Mexican Statesor its
nationals with respect to anydecisionthis Court may render on the merits
of the case.
32. In viewof the extreme gravity and immediacyofthe threat that authonties'inthe
United States will execute a Mexicancitizen in violationof obligations theUnited
Statesowes to Mexico, Mexico respectfullyasks theCourt to treatthis Requestas
a matterof the greatest urgencyandset ahearingon this Requestbefore the
middle of February 2003.
33. The Govemment of the United MexicanStateshas authorizedtheundersigned to
appearbefore the Court in any proceedingsor hearingsrelating to this request that
the Courtor its President may convenein accordancewith the ternis of article 74,
paragaph 3, of the Rules of Court.
Request for the indication of Provisional Measures of Protection