Consular Notification
and the Death Penalty: The World Court's Provisional Measures
Order in Avena and Other Mexican Nationals (Mexico v.
United States)
By Pieter H.F. Bekker
April 2003
As reported in an earlier Insight,
[1] on January 9, 2003, Mexico instituted proceedings
before the International Court of Justice (ICJ or Court) [2] concerning alleged U.S. violations of the right
to consular notification guaranteed under the 1963 Vienna
Convention on Consular Relations, a treaty to which
Mexico and the United States are both parties. Mexico
simultaneously asked the Court, on an urgent basis,
to indicate "provisional measures" (a form of interim
relief also known as "interim measures") designed to
ensure that no Mexican national be scheduled for execution
or be executed in the United States pending final judgment
on the merits of Mexico's claim. After hearing the
parties' arguments on provisional measures at a public
session on January 21, 2003, the ICJ issued an order
on February 5, 2003 with respect to three of the 51
Mexican nationals identified by Mexico as currently
facing a death sentence in the United States. [3] Specifically, the Court indicated, unanimously,
that the United States must "take all measures necessary"
to ensure that the three Mexican death row inmates (César
Roberto Fierro Reyna, Roberto Moreno Ramos, and Osvaldo
Torres Aguilera) are not executed pending the Court's
final judgment in this case, and that the U.S. Government
also must inform the Court "of all measures taken in
implementation" of its binding order.
[4]
The Court found evidence of prima facie jurisdiction
(a basic requirement for granting interim relief)
based on the existence of a dispute within the meaning
of Article I of the Convention's Optional Protocol
concerning the Compulsory Settlement of Disputes of
April 24, 1963. Through this Protocol, to which Mexico
and the United States are both parties without reservation,
they have agreed that "disputes arising out of the
interpretation or application of the Convention" shall
fall within the jurisdiction of the ICJ. The dispute
in this case pertains to the remedies to be provided
for a breach of Vienna Convention obligations regarding
consular notification when a foreign national is arrested
(in particular Article 36, paragraph 1). The Court
pointed out, however, that such dispute went to the
merits of the case and could not be decided at this
stage of the proceedings.
The Court considered that, in light of the rules
and time limits governing the granting of clemency
and the fixing of execution dates in a number of U.S.
states, the fact that no execution dates had been
fixed in any of the cases before it - which in the
U.S.' view proved that Mexico's request was premature
and non-urgent -, was not per se a circumstance
precluding it from indicating provisional measures.
Based on the information available to it, the Court
concluded that the three Mexican nationals identified
were at risk of execution in the coming months, or
possibly even weeks. Accordingly, unless interim
relief were granted, the execution of these three
men would cause irreparable prejudice to any rights
that may subsequently be adjudged by the Court to
belong to Mexico.
In the Court's view, the other 48 convicted Mexican
nationals, although they also were on death row, were
not in the same position as the three persons identified.
It reserved the right, however, to indicate provisional
measures also in respect of those individuals if appropriate
before rendering final judgment in the case.
The Court emphasized, as it has done in previous
similar cases, that the issues in cases of this kind
do not concern the entitlement of the federal states
of the United States to resort to the death penalty
for the most heinous crimes and that its function
is not to act as a court of criminal appeal. It found,
however, that it could indicate provisional measures
in this case without infringing these principles or
prejudicing the sovereign right of the U.S. to operate
its criminal justice system. In its conclusion, the
Court called for a speedy resolution of the case in
the interest of both parties. It subsequently established
deadlines for the filing of the Mexican Memorial and
the U.S. Counter-Memorial in June and October 2003,
respectively.
Although an Order granting interim relief is binding,
it can never be taken itself as establishing jurisdiction
over a particular dispute, and therefore does not
preclude a subsequent finding that the Court lacks
jurisdiction or that Mexico's Application is inadmissible
in this case.
This is the first case regarding consular notification
to come before the Court since its June 2001 judgment
in the LaGrand Case(Germany v. U.S.),
which held, for the first time, that provisional measures
orders issued by the Court are binding on the parties,
and that in cases involving German nationals sentenced
to severe penalties without having been advised of
their right to consular notification, the United States
"by means of its own choosing, shall allow the review
and reconsideration of the conviction and sentence
by taking account of the violation" of consular notification
rights set forth in the Vienna Convention. Provisional
measures orders similar to that of February 5, 2003
were also issued by the Court on April 9, 1998, in
connection with the scheduled execution of Angel Francisco
Breard, a Paraguayan national who was on death row
in Virginia at the time, and on March 3, 1999, in
the case of Karl and Walter LaGrand, two German nationals
convicted of armed robbery and murder in Arizona whom
Germany complained were deprived of their right to
consular notification. In both cases, which were
brought to the Court on the eve of the scheduled executions,
the individuals concerned were executed notwithstanding
the unanimous orders issued by the Court.
Transcripts of the oral proceedings as well as the
text of the Court's February 5, 2003 Order in this
case are available on the
Court's Web site.
About the Author:
Pieter H.F. Bekker, Ph.D. practices international
law and arbitration at White & Case LLP in New
York City, and formerly served as a staff lawyer at
the ICJ in The Hague. He has written two books (Commentaries
on World Court Decisions (1987-1996) and World
Court Decisions at the Turn of the Millennium (1997-2001),
both with Kluwer) and numerous articles and notes
on the ICJ. He co-chaired the 94th Annual Meeting
of the American Society of International Law in April
2000.
[2] The ICJ, which is the principal judicial
organ of the United Nations entrusted with settling
legal disputes between sovereign states, consists
of 15 judges elected to nine-year terms by the UN
General Assembly and Security Council. The Court
has its seat at the Peace Palace in The Hague, The
Netherlands.
[3] Following the decision of former Illinois
Governor George Ryan to commute the death sentences
of all convicted individuals awaiting execution
in that State, at oral argument Mexico withdrew
its request for provisional measures on behalf of
three Mexican nationals who had been on death row
in Illinois, leaving 51 cases at issue in such request.
Mexico's claim on the merits, however, still relates
to all 54 cases.
[4] Judge Oda, the Court's senior judge, appended
a Declaration briefly explaining his vote in favor
of the order.
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