Consular Notification and the Death Penalty: The World Court's Provisional Measures Order in Avena and Other Mexican Nationals (Mexico v. United States)

Pieter H.F. Bekker
April 28, 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.
For further discussion of these and related issues, please see the previous ASIL Insights, "World Court Consular Notification and Death Penalty Challenge Revisited: Mexico v. United States," January 2003, "World Court Rules Against the United States in LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations," July 2001, "International Court of Justice Orders United States to Stay Execution of Paraguayan National in Virginia" April 1998.
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.
[1] See "World Court Consular Notification and Death Penalty Challenge Revisited: Mexico v. United States," January 2003.
[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.