World Court Consular
Notification and Death Penalty Challenge Revisited: Mexico
v. United States
By Pieter H.F. Bekker
January 2003
On January 9, 2003, Mexico
instituted proceedings before the International Court
of Justice (ICJ or Court) against the United States
of America concerning alleged U.S. violations of the
1963 Vienna Convention on Consular Relations, a treaty
to which both Mexico and the United States are parties,
in connection with 54 Mexican nationals awaiting execution
in 10 U.S. states (Arizona, Arkansas, California, Florida,
Illinois, Nevada, Ohio, Oklahoma, Oregon and Texas).
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.
Mexico's Application accuses
the United States of a systemic violation of its obligation
under Article 36 of the 1963 Convention to inform the
54 convicted Mexican nationals of their right to consular
assistance and to provide relief adequate to redress
such violation. Article 36 sets forth the right of
communication and access, which is the basic principle
of consular notification, it spells out the modalities
of consular notification, and it lists the measures
consular officers may take in rendering consular assistance
to their nationals in the custody of the receiving state.
Article 36, paragraph 1(b) of the Convention provides
in particular:
If he so requests, the competent authorities of
the receiving State shall, without delay, inform the
consular post of the sending State if, within its
consular district, a national of that State is arrested
or committed to prison or to custody pending trial
or is detained in any other manner. Any communication
addressed to the consular post by the person arrested,
in prison, custody or detention shall also be forwarded
by the said authorities without delay. The said
authorities shall inform the person concerned without
delay of his rights under this subparagraph.
According to Mexico, in the
54 cases concerned, the United States authorities either
did not attempt to comply with Article 36 before Mexican
nationals were tried, convicted and sentenced to death,
failed to provide the required notification "without
delay," or informed the detained Mexican national of
his rights to consular notification and access in connection
with proceedings other than capital charges brought
against him.
Mexico has asked the Court
to order the United States to re-establish the situation
that existed before the detention of, proceedings against,
and convictions and sentences of, Mexico's nationals
in violation of its obligations under international
law, and to take all necessary steps to ensure that
U.S. municipal law enables full effect to be given for
the purposes for which the rights afforded by Article
36 are intended, both with regard to the 54 Mexican
nationals currently on death row and to any other Mexican
national in U.S. territory now and in the future. In
particular, Mexico asserts that the U.S. must bar the
imposition of any procedural penalty for the failure
timely to raise a defense based on the 1963 Convention
where competent U.S. authorities have breached their
obligation to advise a Mexican national of his or her
rights under the Convention. In effect, Mexico is asking
the ICJ to order the United States to dismiss or re-try
the criminal cases involving the 54 Mexican death row
inmates. Mexico also has requested the Court to declare
that the right to consular notification under the Vienna
Convention is a human right and that the U.S. must provide
Mexico with a guarantee of the non-repetition of the
acts complained of.
As the basis of the Court's
jurisdiction, Mexico is relying on Article I of the
Vienna Convention's Optional Protocol concerning the
Compulsory Settlement of Disputes of April 24, 1963,
to which both Mexico and the United States are parties.
Article I establishes the Court's jurisdiction over
disputes arising out of the interpretation or application
of the Convention. As is usual in "involuntary" cases
brought unilaterally by claimant states, the United
States is likely to argue that the Court lacks jurisdiction
to entertain Mexico's Application and/or that the Application
is inadmissible, which arguments usually are dealt with
by way of a separate, initial phase of the proceedings.
Mexico also has asked the ICJ
urgently to indicate provisional measures designed to
ensure that no Mexican national be scheduled for execution
or be executed in the United States pending final judgment
in this case. In order to grant such interim relief,
the Court needs only to satisfy itself that prima
facie jurisdiction exists in the case based on the
existence of a dispute as to the application of the
Vienna Convention within the meaning of Article I of
the Optional Protocol, and that unless such relief were
granted, there would be a risk of irremediable harm
to the subject-matter of the case. Although an Order
granting such relief is binding, it can never be taken
itself as establishing jurisdiction in the case and,
therefore, does not preclude a subsequent finding that
the Court lacks jurisdiction or that the Application
is inadmissible.
This is the third time within
five years that a country has instituted proceedings
against the United States over alleged violations of
the 1963 Vienna Convention in connection with the death
penalty administered in the United States. On April
3, 1998, Paraguay brought a case before the ICJ over
alleged U.S. violations of the Convention in an effort
to prevent the execution of Angel Francisco Breard,
a Paraguayan national who was on death row in Virginia
at the time. Notwithstanding the Court's Order of April
9, 1998 ruling, unanimously, that, pending final judgment
in the case, the United States should take all measures
at its disposal to prevent Breard's execution on April
14, 1998, his execution took place as scheduled. The
case subsequently was discontinued at Paraguay's request
on November 10,1998.
Germany had more success with
its March 2, 1999 Application against the United States
in a similar dispute concerning the case of Karl and
Walter LaGrand, two German nationals convicted of armed
robbery and murder in Arizona. After the Court's Order
of March 3, 1999 ruled, unanimously, that the U.S. should
take all measures at its disposal to prevent Walter
LaGrand's execution and transmit the ICJ Order to the
competent authorities, the death sentence still was
carried out. The Court's landmark decision of June
27, 2001 found, therefore, that the United States had
violated the 1963 Convention as complained by Germany
and had failed to comply with the provisional measures
Order, the binding effect of which the Court explicitly
confirmed for the first time. The Court also found,
however, that it was not necessary for it to consider
Germany's contention that the individual right embodied
in Article 36(1) has assumed the character of a human
right.
Under Article 59 of the ICJ
Statute, decisions of the ICJ are binding only on the
parties to the specific case, i.e., they do not bind
third states. Thus, the 2001 judgment applies only
to the obligations of the U.S. in cases of severe penalties
imposed by U.S. courts upon German nationals. Although
the Court is not formally bound by its own precedents,
it does tend to follow them in practice. The Court
has made it clear 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 universal supreme court of appeal of
national criminal proceedings.
The full text of the press
communiqué regarding this case (No. 2003/1) is available
on the World Court's Web site: <http://www.icj-cij.org>.
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.
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