Consular Notification and the Death Penalty: The ICJ's Judgment in Avena
By William J. Aceves
In January 2003, Mexico instituted proceedings in the International Court of Justice ("ICJ") against the United States, alleging violations of the Vienna Convention on Consular Relations ("Vienna Convention").  The Vienna Convention provides that foreign nationals must be informed, without delay, of their right to communicate with their consulate when they are detained by law enforcement officials. It also requires law enforcement officials to notify the appropriate consulate if the foreign national so requests. In Avena, Mexico argued that the United States had failed to comply with the Vienna Convention in 54 separate cases involving Mexican nationals who had been convicted and sentenced to death. On March 31, 2004, the ICJ issued its ruling in the case, holding that the United States had violated the Vienna Convention in most of those cases and calling for the United States to provide review and reconsideration of the convictions and sentences in the underlying criminal proceedings.
For decades, Mexico has provided consular assistance to its nationals traveling in the United States. In 1942, Mexico and the United States entered into a bilateral consular agreement "because of their geographic proximity and the frequent inter-state travel of their respective citizens."  In 1965, Mexico ratified the Vienna Convention in order to supplement its bilateral consular agreements and to provide additional protection to Mexican nationals traveling abroad. In 1986, Mexico developed the Program of Legal Consultation and Defense for Mexicans Abroad in order to improve the work of its consular officials in representing the interests of Mexican nationals, particularly in legal proceedings.  In 2000, Mexico established the Mexican Capital Legal Assistance Program in the United States.  The program works with consular officials and defense counsel in the United States to promote awareness and compliance with international norms, including the Vienna Convention. Through the program, Mexico has intervened to protect the rights of Mexican nationals in over 100 capital cases.  In some of these cases, Mexican representatives assisted defense counsel in obtaining evidence or presenting arguments to the courts. In other cases, Mexico submitted diplomatic protests or requests for clemency to state and federal officials. To enhance these programs, Mexico adopted legislation and corresponding regulations in 2002 that "establish a comprehensive legal framework pursuant to which Mexican consular officials must intervene directly to protect the rights of Mexican nationals." 
Despite these actions, Mexico's efforts to promote compliance with the Vienna Convention in the United States have met with limited success. State and federal courts have declined to overturn convictions or suppress evidence when violations of the Vienna Convention have occurred, even in capital cases.II. Mexico's Application to the ICJ
On January 9, 2003, Mexico filed an application instituting proceedings against the United States in the International Court of Justice. Mexico's application based the jurisdiction of the Court on the Optional Protocol Concerning the Compulsory Settlement of Disputes ("Optional Protocol") that accompanies the Vienna Convention and that both countries have accepted. 
The Mexican application alleged that 54 Mexican nationals had been "arrested, detained, tried, convicted, and sentenced to death" in proceedings in which the competent authorities failed to comply with their obligations under the Vienna Convention.  These violations "prevented Mexico from exercising its rights and performing its consular functions pursuant to Articles 5 and 36 . . . of the Vienna Convention."  As a result of these violations, Mexico argued that it "had suffered injuries in its own rights and in the form of injuries to its nationals." 
In a separate request for the indication of provisional measures of protection, Mexico emphasized that three of its nationals-César Roberto Fierro Reyna, Roberto Moreno Ramos, and Osvaldo Torres Aguilera-faced executions in the next six months. The request also noted that other Mexican nationals could soon face execution in the United States. Thus, the request for provisional measures sought to ensure that no Mexican national would be executed until the Court determined Mexico's claims on the merits. III. The ICJ's Provisional Measures Order
On February 5, 2003, the Court announced its unanimous decision on the request for the indication of provisional measures. Of the 54 named individuals, the Court found that only three of them did, in fact, face the risk of execution in the coming weeks or months. Moreover, these executions "would cause irreparable prejudice to any rights that may subsequently be adjudged by the Court to belong to Mexico. . . ."  Accordingly, the Court issued the following order: "[t]he United States of America shall take all measures necessary to ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgment in these proceedings . . . ." IV. The ICJ's Judgment in Avena
On March 31, 2004, the Court issued its judgment on the merits. As a preliminary matter, the Court dismissed all the jurisdictional and admissibility challenges raised by the United States. The Court found that the jurisdictional challenges were more appropriately addressed at the merits stage. Several admissibility challenges were also dismissed for this reason. The remaining admissibility challenges were dismissed on various grounds. For example, the Court found that exhaustion of local remedies within the United States was not necessary because Mexico was requesting the Court to rule on the violation of rights that it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals. In addition, the Court held that Mexico had not waived its right to bring the case before the ICJ, even if it had delayed in doing so. "[O]nly a much more prolonged and consistent inaction on the part of Mexico . . . might be interpreted as implying such a waiver."  The Court also rejected the claim that Mexico's own alleged failure to comply with the Vienna Convention precluded its action against the United States. The Court found that the Vienna Convention was designed to facilitate consular practice and promote friendly relations among member states. "Even if it were shown, therefore, that Mexico's practice as regards the application of Article 36 was not beyond reproach, this would not constitute a ground of objection to the admissibility of Mexico's claim." 
Having resolved the jurisdictional and admissibility challenges, the Court then considered the merits of Mexico's claim. First, the Court found that the United States had breached its obligations under the Vienna Convention in the following manner:
(1) by failing to inform, without delay, 51 Mexican nationals of their rights under the Vienna Convention; 
(2) by failing to notify, without delay, the appropriate Mexican consular post of the detention of 49 Mexican nationals, thereby depriving Mexico of the right to render assistance to its nationals;
(3) by depriving Mexico of the right to communicate with, and have access to, 49 Mexican nationals in a timely fashion;
(4) by depriving Mexico of the right to arrange for legal representation of 34 Mexican nationals in a timely fashion; and
(5) by not permitting the review and reconsideration, in light of the rights set forth in the Vienna Convention, of the convictions and sentences of three Mexican nationals currently awaiting execution.
To remedy these violations, the Court held that the United States must provide "by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals."  In order to satisfy the Court's judgment, such review and reconsideration must take into account the rights set forth in Article 36 as well as the relevant portions of the Court's opinion on this issue. The Court indicated that review and reconsideration must be effective and must provide "a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration."  Thus, the procedural default rule cannot be used to preclude a defendant from raising a Vienna Convention violation.  In addition, the Court stated that review and reconsideration must occur "with a view to ascertaining whether in each case the violation of Article 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice."  Thus, the Court declined Mexico's request to find that a Vienna Convention violation must automatically result in the partial or total annulment of conviction or sentence.
The Court also averred that it was not determining the correctness of any conviction or sentence issued by a U.S. court. It continued:
The question of whether the violations of Article 36, paragraph 1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the United States and is for them to determine in the process of review and reconsideration. In so doing, it is for the courts of the United States to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention. 
Finally, the Court indicated that such review and reconsideration must apply to both the conviction and sentence. It must also take place within the judicial process and not through the clemency process. "[T]he clemency process as currently practiced within the United States criminal justice system . . . is not sufficient in itself to serve as an appropriate means of 'review and reconsideration.'" 
The Court also focused on prospective relief. First, the Court acknowledged the considerable efforts of the United States to ensure, in good faith, that law enforcement authorities complied with the Vienna Convention. These efforts included extensive outreach efforts by the U.S. State Department to inform state and local law enforcement officials about the Vienna Convention and its attendant obligations. Thus, the Court found that the U.S. commitment to ensure implementation of specific measures in performance of its obligations under Article 36 constituted a sufficient guarantee and assurance of non-repetition. Second, the Court held that any failure of the United States to inform Mexican nationals of their right to contact their consulate in future cases where Mexican nationals are sentenced to severe penalties would raise a new set of obligations. In these cases, the United States "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 . . . ."  Finally, the Court indicated that its analysis of the Vienna Convention should not be limited to Mexican nationals. According to the Court, "the fact that in this case the Court's ruling has concerned only Mexican nationals cannot be taken to imply that the conclusions reached by it in the present Judgment do not apply to other foreign nationals finding themselves in similar situations in the United States." V. Conclusion
For the second time in three years, the International Court of Justice has found the United States to have violated the Vienna Convention on Consular Relations. But the Avena decision is different from the earlier LaGrand decision in several respects. 
In Avena, the Court indicated that law enforcement officials must inform a foreign national of his or her consular rights once there are grounds to believe that the person is a foreign national. Indeed, the Court suggested that this notice could be issued along with the reading of Miranda rights.
The Court also clarified the meaning of review and reconsideration, a remedy first recognized in LaGrand. The Court held that review and reconsideration requires judicial review and that the clemency process alone is insufficient. Furthermore, the Court held that review and reconsideration requires a determination of whether the Vienna Convention violations caused actual prejudice to the defendant. Such determinations can only be made on a case-by-case basis. While ICJ decisions have no binding force except between the parties and in respect to that particular case,  the Court made clear that its analysis in Avena was not limited to Mexican nationals and that it applies with equal rigor to cases involving other foreign nationals.
The influence of the Avena decision will soon be measured in the United States. The State of Oklahoma has scheduled the execution of Osvaldo Torres, one of the Mexican nationals referenced in Avena, for May 18, 2004.
The text of the Avena decision is available on the ICJ's website (www.icj-cij.org).
For further discussion of these and related issues, please see the previous ASIL Insights available on the ASIL website (www.asil.org): "Consular Notification and the Death Penalty: The World Court's Provisional Measures Order in Avena and Other Mexican Nationals (Mexico v. United States)," April 2003; "World Court Consular Notification and Death Penalty Challenge Revisited: Mexico v. United States," January 2003.
About the Author:
William J. Aceves is a Professor of Law and Director of the International Legal Studies Program at California Western School of Law. He has written extensively on the Vienna Convention and has served as amicus counsel to several human rights organizations in cases involving the Vienna Convention. This Insight is based, in part, on the author's case report: Avena and Other Mexican Nationals, 97 AJIL 923 (2003).
 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261.
 Application Instituting Proceedings Submitted by the Government of the United Mexican States (Jan. 9, 2003), Avena (Mex. v. U.S.) (Int'l Ct. Justice), at para. 20 ("Avena application").
 Id., para. 22.
 Id., para. 25.
 Id., para. 26.
 Id., para. 21.
 Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 UST 325, 596 UNTS 487. The Optional Protocol provides that disputes arising out of the interpretation or application of the Vienna Convention shall lie within the compulsory jurisdiction of the Court. Id., art. I. Mexico acceded to the Optional Protocol on March 5, 2002.
 Avena application, supra note 2, para. 1. The Mexican application provided detailed information about each of the 54 cases.
 Id., para. 2. Article 5 of the Vienna Convention defines "consular functions." Article 36 defines the sending state's entitlements regarding communication and contact with its nationals.
 Avena application, supra note 2, para. 2.
 On January 20, 2003, Mexico withdrew its request for provisional measures on behalf of three of the 54 Mexican nationals because their death sentences had been commuted.
 Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), Order of Provisional Measures, para. 55, 42 ILM 309 (2003).
 Id., para. 59.
 Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), Merits, para. 44 (2004).
 Id., para. 47.
 The Court said that "without delay" does not necessarily mean "immediately upon arrest," but it does mean "as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national." Id., para. 88.
 Id., para. 153(9).
 Id., para. 139.
 Procedural default rules preclude a defendant from raising a claim on appeal that was not raised in earlier proceedings.
 Id., para. 121.
 Id., para. 122.
 Id., para. 143.
 Id., para. 153(11).
 Id., para. 151.
 LaGrand (Ger. v. U.S.), (Int'l Ct. Justice June 27, 2001), 40 ILM 1069 (2001).
The purpose of ASIL Insights is to provide concise and informed background for developments of interest to the international community. The American Society of International Law does not take positions on substantive issues, including the ones discussed in this Insight.