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April 18, 2004

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Consular notification and death penalty: The ICJ's judgement in Avana

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 Avana, 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 travelling 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 travelling abroad. In 1986, Mexico developed the Programme of Legal Consultation and Defence 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 programme works with consular officials and defence counsel in the United States to promote awareness and compliance with international norms, including the Vienna Convention. Through the programme, Mexico has intervened to protect the rights of Mexican nationals in over 100 capital cases. In some of these cases, Mexican representatives assisted defence 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 programmes, 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.


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 on 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 emphasised that three of its nationals-Cesar 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 soonface 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.

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. Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgement in these proceedings . . . ."

The ICJ's judgment in Avena
On March 31, 2004, the Court issued its judgement 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 judgement, 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 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.

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 practised 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 US 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 . .

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 recognised 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.

William J. Aceves is a Professor of Law and Director of the International Legal Studies Program at California Western School of Law.
Courtesy: American Society for International Law (ASIL).



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