INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING A VENA AND OTHER MEXICAN NATIONALS
(MEXICO v. UNITED STATES OF AMERICA) JUDGMENT OF 31 MARCH 2004
2004
Facts of the case — Article 36 of the Vienna Convention on Consular Relations of 24 April 1963.
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Mexico’s objection to the United States objections to jurisdiction and admis-sibility — United States objections not presented as preliminary objections -—Article 79 of Rules of Court not pertinent in present case.
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Jurisdiction of the Court
First United States objection to jurisdiction — Contention that Mexico’s sub-missions invite the Court to rule on the operation of the United States criminal justice system — Jurisdiction of Court to determine the nature and extent of obligations arising under Vienna Convention — Enquiry into the conduct of criminal proceedings in United States courts a matter belonging to the merits.
Second United States objection to jurisdiction — Contention that the first submission of Mexico’s Memorial is excluded from the Court’s jurisdiction — Mexico defending an interpretation of the Vienna Convention whereby not only the absence of consular notification hut also the arrest, detention, trial and con¬viction of its nationals were unlawful, failing such notification — Interpretation of Vienna Convention a matter within the Court’s jurisdiction.
Third United States objection to jurisdiction — Contention that Mexico’s submissions on remedies go beyond the Court’s jurisdiction — Jurisdiction of Cour t to consider the question of remedies — Question whether or how far the Court may order the requested remedies a matter belonging to the merits.
Fourth United States objection to jurisdiction — Contention that the Court lacks jurisdiction to determine whether or not consular notification is a human right — Question of interpretation of Vienna Convention.
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Admissibility of Mexico’s claims.
First United States objection to admissibility — Contention that Mexico’$ submissions on remedies seek to have the Court function as a court of criminal appeal — Question belonging to the merits,
Second United States objection to admissibility — Contention that Mexico’s claims to exercise its right of diplomatic protection are inadmissible on grounds that local remedies have not been exhausted — Interdependence in the present case of rights of the State and of individual rights — Mexico requesting the Court to rule on the violation of rights which it suffered both directly and through the violation of individual rights of its nationals — Duty to exhaust local remedies does not apply to such a request<
Third United States objection to admissibility — Contention thai certain Mexican nationals also have United States nationality — Question belonging to the merits.
Fourth United States objection to admissibility — Contention that Mexico had actual knowledge of a breach but failed to bring such breach to the attention of the United States or did so only after considerable delay — No contention in the present case of any prejudice caused by such delay — No implied waiver by Mexico of its rights.
Fifth United States objection to admissibility — Contention that Mexico invokes s tandards that it does not follow in its own practice — Nature of Vienna Convention precludes such an argument.
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Article 36, paragraph 1 — Mexican nationality of 52 individuals concerned — United States has not proved its contention that some were also United States nationals.
Article 36, paragraph I (b) — Consular information — Duty to provide con¬sular information as soon as arresting authorities realize that arrested person is a foreign national or have grounds for so believing — Pro vision of consular information in parallel with reading of “Miranda rights” — Contention that seven individuals stated at the time of arrest that they were United States nationals — Interpretation of phrase “without delay” — Violation by United States of the obligation to provide consular information in 51 cases,
Consular notification — Violation by United States of the obligation of con¬sular notification in 49 cases.
Article 36, paragraph 1 (a) and (c) — Interrelated nature of the three sub¬paragraphs of paragraph 1 — Violation by United States of the obligation to enable Mexican consular officers to communicate with, have access to and visit their nationals in 49 cases — Violation by United States of the obligation to enable Mexican consular officers to arrange for legal representation of their nationals in 34 cases.
Article 36, paragraph 2 — “Procedural default” rule — Possibility of judicial remedies still open in 49 cases — Violation by United States of its obligations under Article 36, paragraph 2, in three cases.
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Legal consequences of the breach,
Question of adequate reparation for violations of Article 36 — Review and reconsideration by United States courts of convictions and sentences of the Mexican nationals — Choice of means left to United States — Review and reconsideration to be carried out by taking account of violation of Vienna Con¬vention rights — “Procedural default ” rule.
Judicial process suited to the task of review and reconsideration — Clemency process, as currently practised within the United States criminal justice system, not sufficient in itself to serve as appropriate means of “review and reconsidera¬tion” — Appropriate clemency procedures can supplement judicial review and reconsideration.
Mexico requesting cessation of wrongful acts and guarantees and assurances of non-repetition — No evidence to establish “regular and continuing” pattern of breaches by United States of Article 36 of Vienna Convention — Measures taken by United States to comply with its obligations under Article 36, para¬graph 1 — Commitment undertaken by United States to ensure implementation of its obligations under that provision.
No a con t ratio argument can be made in respect of the Court’s findings in the
present Judgment concerning Mexican nationals.
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United States obligations declared in Judgment replace those arising from Provisional Measures Order of 5 February 2003 — In the three cases where the United States violated its obligations under A rticle 361 paragraph 2, it must find an appropriate remedy having the nature of review and reconsideration accord¬ing to the criteria indicated in the Judgment.
JUDGMENT
Present: President SHI; Vice-President RANJEVA; Judges GULLLAUME, KOROMA, VERESHCHETLN, H LOGINS, PARRA-ARANGUREN, KOQDMANS, REZEK, A L-K HAS AWN EH, BUERGENTHAL, ELARADY, OWADA, TOMKA; Judge ad hoc SEPULVEDA; Registrar COUVREUR.
In the case concerning A vena and other Mexican nationals^
between the United Mexican States, represented by
H.E. Mr. Juan Manuel Gomez-Robledo, Ambassador, former Legal Adviser, Ministry of Foreign Affairs, Mexico City,
as Agent;
H.E. Mr. Santiago Onate, Ambassador of Mexico to the Kingdom of the
Netherlands, as Agent (until 12 February 2004);
Mr. Arturo A. Dager, Legal Adviser, Ministry of Foreign Affairs, Mexico City,
Ms Maria del Refugio Gonzalez Doming uez, Chief, Legal Co-ordination
Unit, Ministry of Foreign Affairs, Mexico City, as Agents (from 2 March 2004);
HE. Ms Sandra Fuentes Be rain, Ambassador-Designate of Mexico to the
Kingdom of the Netherlands, as Agent (from 17 March 2004);
Mr. Pierre-Marie Dupuy, Professor of Public International Law at the University of Paris II (Pantheon-Assas) and at the European University Institute, Florence,
Mr. Donald Francis Donovan, Attorney at Law, Debevoise & Plimpton, New York,
Ms Sandra L. Babcock, Attorney at Law, Director of the Mexican Capital
Legal Assistance Programme, Mr+ Carlos Bernal, Attorney at Law, Noriega y Escobedo, and Chairman of the Commission on International Law at the Mexican Bar Association, Mexico City,
Ms Kathcrine Birmingham Wilmore, Attorney at Law, Debevoise &
Plimpton, London, Mr. Dietmar W, Prager, Attorney at Law, Debevoise & Plimpton, New York,
Ms Socorro Flores Liera, Chief of Staff, Under-Secretariat for Global Affairs and Human Rights, Ministry of Foreign Affairs, Mexico City,
Mr. Victor Manuel Uribe Avina, Head of the International Litigation Sec¬tion, Legal Adviser’s Office, Ministry of Foreign Affairs, Mexico City,
as Counsellors and Advocates;
Mr, Erasmo A. Lara Cabrera, Head of the International Law Section, Legal
Adviser’s Office, Ministry of Foreign Affairs, Mexico City, Ms Natalie Klein, Attorney at Law, Debevoise & Plimpton, New York, Ms Catherine Amirfar, Attorney at Law, Debevoise & Plimpton, New York,
Mr. Thomas Bollyky, Attorney at Law, Debevoise & Plimpton, New York, Ms Crist)na Hoss, Research Fellow at the Max Planck Institute for Com¬parative Public Law and International Law, Heidelberg, Mr Mark Warren, International Law Researcher, Ottawa, as Advisers;
Mr, Michel L5 Enfant, Debevoise & Plimpton, Paris, as Assistant,
and
the United States of America, represented by
The Honourable William H. Taft, IV, Legal Adviser, United States Depart¬ment of State, as Agent;
Mr, James H, Thessin, Principal Deputy Legal Adviser, United States Depart¬ment of State, as Co-Agent;
Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs,
United States Department of State, Mr, D, Stephen Matbias, Assistant Legal Adviser for United Nations Affairs,
United States Department of State, Mr. Patrick F. Phil bin. Associate Deputy Attorney General, United States
Department of Justice, Mr. John Byron Sandage, Attorney-Adviser for United Nations Affairs,
United States Department of State, Mr. Thomas Weigcnd, Professor of Law and Director of the Institute of For¬eign and International Criminal Law, University of Cologne, Ms Elisabeth Zoiler, Professor of Public Law, University of Paris II (Pan-
theon-Assas), as Counsel and Advocates;
Mr. Jacob Katz Cogan, Attorney-Adviser for United Nations Affairs, United
States Department of State, Ms Sara Criscitelli, Member of the Bar of the State of New York, Mr. Robert J. E rick son, Principal Deputy Chief, Criminal Appellate Section,
United States Department of Justice, Mr. Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice,
Mr. Steven Hill, Attorney-Adviser for Economic and Business Affairs, United
States Department of State, Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The Hague,
Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The Hague,
Mr. Peter W. Mason, Attorney-Adviser for Consular Affairs, United States Department of State,
as Counsel;
Ms Barbara Barrett-Spencer, United States Department of State, Ms Marianne Hata, United States Department of State, Ms Cecile Jouglet, United States Embassy, Paris, Ms Joanne Nelligan, LInited States Department of State, Ms Laura Romalns, United States Embassy, The Hague, as Administrative Staff,
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
L On 9 January 2003 the United Mexican States (hereinafter referred to as “Mexico”) filed in the Registry of the Court an Application instituting proceed¬ings against the United States of America (hereinafter referred to as the “United States”) for “violations of the Vienna Convention on Consular Rela¬tions”1 of 24 April 1963 (hereinafter referred to as the “Vienna Convention”) allegedly committed by the United States.
In its Application, Mexico based the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article I of the Optional Pro¬tocol concerning the Compulsory Settlement of Disputes, which accompanies the Vienna Convention (hereinafter referred to as the “Optional Protocol”).
2f Pursuant to Article 40, paragraph 2, of the Statute, the Application was forthwith communicated to the Government of the United States; and, in accordance with paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.
3. On 9 January 2003, the day on which the Application was filed, the Mexi¬can Government also filed in the Registry of the Court a request for the indica¬tion of provisional measures based on Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of Court
By an Order of 5 February 2003, the Court indicated the following provi¬sional measures:
“(a) The 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 judgment in these proceedings; (b) The Government of the United States of America shall inform the Court of all measures taken in implementation of this Order.”
It further decided that, “until the Court has rendered its final judgment, it shall remain seised of the matters” which formed the subject of that Order.
In a letter of 2 November 2003, the Agent of the United States advised the Court that the United States had “informed the relevant state authorities of Mexico’s application”; that, since the Order of 5 February 2003, the United States had “obtained from them information about the status of the fifty-four cases, including the three cases identified in paragraph 59 (I) (a) of that Order” ; and that the United States could “confirm that none of the named individuals [had] been executed”.
4. In accordance with Article 43 of the Rules of Court, the Registrar sent the notification referred to in Article 63, paragraph 1, of the Statute to all States parties to the Vienna Convention or to that Convention and the Optional Pro- tocol.
5. By an Order of 5 February 2003, the Court, taking account of the views of the Parties, fixed 6 June 2003 and 6 October 2003, respectively, as the time- limits for the filing of a Memorial by Mexico and of a Counter-Memorial by the United States.
6. By an Order of 22 May 2003, the President of. the Court, on the joint request of the Agents of the two Parties, extended to 20 June 2003 the time- limit for the filing of the Memorial; the time-limit for the filing of the Counter- Memorial was extended, by the same Order, to 3 November 2003.
By a letter dated 20 June 2003 and received in the Registry on the same day, the Agent of Mexico informed the Court that Mexico was unable for technical reasons to file the original of its Memorial on time and accordingly asked the Court to decide, under Article 44, paragraph 3, of the Rules of Court, that the filing of the Memorial after the expiration of the time-limit fixed therefor would be considered as valid ; that letter was accompanied by two electronic copies of the Memorial and its annexes, Mexico having filed the original of the Memorial on 23 June 2003 and the United States having informed the Court, by a letter of 24 June 2003, that it had no comment to make on the matter, the Court decided on 25 June 2003 that the filing would be considered as valid,
7. In a letter of 14 October 2003, the Agent of Mexico expressed his Gov¬ernment’s wish to amend its submissions in order to include therein the cases of two Mexican nationals, Mr. Victor Miranda Guerrero and Mr. Tonatihu Aguilar Saucedo, who had been sentenced to death, after the filing of Mexico’s Memorial, as a result of criminal proceedings in which, according to Mexico, the United States had failed to comply with its obligations under Article 36 of the Vienna Convention.
In a letter of 2 November 2003, under cover of which the United States filed its Co unter-Memorial within the time-limit prescribed, the Agent of the United States informed the Court that his Government objected to the amendment of Mexico’s submissions, on the grounds that the request was late, that Mexico had submitted no evidence concerning the alleged facts and that there was not enough time for the United States to investigate them.
In a letter received in the Registry on 28 November 2003, Mexico responded to the United States objection and at the same time amended its submissions so as to withdraw its request for relief in the cases of two Mexican nationals men¬tioned in the Memorial, Mr. Enrique Zambrano Garibi and Mr, Pedro Hernan¬dez Alberto, having come to the conclusion that the former had dual Mexican and United States nationality and that the latter had been informed of his right of consular notification prior to interrogation*
On 9 December 2003, the Registrar informed Mexico and the United States that, in order to ensure the procedural equality of the Parties, the Court had decided not to authorize the amendment of Mexico’s submissions so as to include the two additional Mexican nationals mentioned above. He also informed the Parties that the Court had taken note that the United States had made no objection to the withdrawal by Mexico of its request for relief in the cases of Mr. Zambrano and Mr. Hernandez,
8. On 28 November 2003 and 2 December 2003, Mexico filed various docu¬ments which if wished to produce in accordance with Article 56 of the Rules of Court. By letters dated 2 December 2003 and 5 December 2003, the Agent of the United States informed the Court that his Government did not object to the production of these new documents and that it intended to exercise its right to comment upon these documents and to submit documents in support of its comments, pursuant to paragraph 3 of that Article. By letters dated 9 Decem¬ber 2003, the Registrar informed the Parties that the Court had taken note that the United States had no objection to the production of these documents and that accordingly counsel would be free to refer to them in the course of the hearings. On 10 December 2003, the Agent of the United States filed the com¬ments of his Government on the new documents produced by Mexico, together with a number of documents in support of those comments.
9- Since the Court included upon the Bench no judge of Mexican national¬ity, Mexico availed itself of its right under Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case: it chose Mr. Bernardo Sepulveda*
10. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having con¬sulted the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings.
11. Public sittings were held between 15 and 19 December 2003, at which the Court heard the oral arguments and replies of:
For Mexico: HE. Mr. Juan Manuel Gomez-Robledo,
Ms Sandra L. Babcock, Mr, Victor Manuel Uribe Avina, Mr. Donald Francis Donovan, Ms Katherine Birmingham Wilmore, H.E. Mr, Santiago Onate, Ms Socorro Flo res Liera, Mr, Carlos Bernal, Mr. Dietmar W. Prager, Mr. Pierre-Marie Dupuy. For the United Slates: The Honourable William H Taft, IV, Ms Elisabeth Zoller, Mr, Patrick F. Phil bin, Mr, John Byron Sandage, Ms Catherine W. Brown, Mr. D. Stephen Mathias, Mr. James H. Thessin,
Mr. Thomas Weigend.
#
12. In its Application, Mexico formulated the decision requested in the fol¬lowing terms:
“The Government of the United Mexican States therefore asks the Court to adjudge and declare;
(1) that the United States, in arresting, detaining, trying, convicting, and sentencing the 54 Mexican nationals on death row described in this Application, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention;
(2) that Mexico is therefore entitled to restitutio in integrum;
(3) that the United States is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;
(4) that the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obliga¬tions any future detention of or criminal proceedings against the 54 Mexican nationals on death row or any other Mexican national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power’s functions are international or internal in character;
(5) that the right to consular notification under the Vienna Convention is a human right;
and that, pursuant to the foregoing international legal obligations,
(1) the United States must restore the status quo ante, that is, re-establish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Mexico’s nationals in violation of the United States international legal obligations;
(2) the United States must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended;
(3) the United States must take the steps necessary and sufficient to estab¬lish a meaningful remedy at law f or violations of the rights afforded to Mexico and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure timely to raise a claim or defence based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his or her rights under the Convention; and
(4) the United States, in light of the pattern and practice of violations set forth in this Application, must provide Mexico a full guarantee of the non-repetition of the illegal acts.”
13. In the course of the written proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Mexico, in the Memorial:
“For these reasons,.. . the Government of Mexico respectfully requests the Court to adjudge and declare
{!) that the United States, in arresting, detaining, trying, convicting, and sentencing the fifty-four Mexican nationals on death row described in
Mexico’s Application and this Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of diplomatic protection of its nationals, as provided by Article 36 of the Vienna Convention;
(2) that the obligation in Article 36 (1) of the Vienna Convention requires notification before the competent authorities of the receiving State interrogate the foreign national or take any other action potentially detrimental to his or her rights;
(3) that the United States, in applying the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise and review of the rights afforded by Article 36 of the Vienna Convention, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of diplomatic protection of its nationals, as provided by Article 36 of the Vienna Convention; and
(4) that the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obliga¬tions any future detention of or criminal proceedings against the fifty- four Mexican nationals on death row and any other Mexican national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power’s functions are international or internal in character;
and that, pursuant to the foregoing international legal obligations,
(1) Mexico is entitled to restitutio in integrum and the United States there¬fore is under an obligation to restore the status quo ante, that is, re¬establish the situation that existed at the time of the detention and prior to the interrogation of, proceedings against, and convictions and sentences of, Mexico’s nationals in violation of the United States’ international legal obligations, specifically by, among other things,
(a) vacating the convictions of the fifty-four Mexican nationals;
(b) vacating the sentences of the fifty-four Mexican nationals;
(c) excluding any subsequent proceedings against the fifty-four Mexi¬can nationals any statements and confessions obtained from them prior to notification of their rights to consular notification and
access;
(d) preventing the application of any procedural penalty for a Mexi¬can national’s failure timely to raise a claim or defence based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his rights under the Convention;
(e) preventing the application of any municipal law doctrine or judicial holding that prevents a court in the United States from providing a remedy, including the relief to which this Court holds thai Mexico is entitled here, to a Mexican national whose Article 36 rights have been violated; and
(f) preventing the application of any municipal law doctrine or judi¬cial holding that requires an individualized showing of prejudice as a prerequisite to relief for the violations of Article 36;
(2) the United States, m light of the regular and continuous violations set forth in Mexico’s Application and Memorial, is under an obligation to take all legislative, executive, and judicial steps necessary to:
(a) ensure that the regular and continuing violations of the Article 36 consular notification, access, and assistance rights of Mexico and its nationals cease;
(bj guarantee that its competent authorities, of federal, state, and local jurisdiction, maintain regular and routine compliance with their Article 36 obligations; (c) ensure that its judicial authorities cease applying, and guarantee that in the future they will not apply:
(i) any procedural penalty for a Mexican national’s failure timely to raise a claim or defence based on the Vienna Con¬vention where competent authorities of the United States have breached their obligation to advise the national of his or her rights under the Convention;
(ii) an}’ municipal law doctrine or judicial holding that prevents a court in the United States from providing a remedy, including the relief to which this Court holds that Mexico is entitled here, to a Mexican national whose Article 36 rights have been violated; and
(hi) any municipal law doctrine or judicial holding that requires an individualized showing of prejudice as a prerequisite to relief for the Vienna Convention violations shown here.”
On behalf of the Government of the United States,
in the Counter-Memo rial:
“On the basis of the facts and arguments set out above, the Government of the United States of America requests that the Court adjudge and declare that the claims of the United Mexican States are dismissed-”
14. At the oral proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Mexico,
“The Government of Mexico respectfully requests the Court to adjudge and declare
(1) that the United States of America, in arresting, detaining, trying, con¬victing, and sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by tailing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (I) (a) and (c) of the Convention;
(2) that the obligation in Article 36 (1) of the Vienna Convention requires notification of consular rights and a reasonable opportunity for con¬sular access before the competent authorities of the receiving State take any action potentially detrimental to the foreign nationals rights;
(3) that the United States of America violated its obligations under Article 36 (2) of the Vienna Convention by failing to provide mean¬ingful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1); by substituting for such review and reconsideration clemency proceedings; and by applying the ‘procedural default* doctrine and other municipal law doctrines that fail to attach legal significance to an Article 36 (1) vio¬lation on its own terms;
(4) that pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals, Mexico is entitled to full reparation for those injuries m the form of restitutio in integrum;
(5) that this restitution consists of the obligation to restore the status quo ante by annulling or otherwise depriving of full force or effect the con¬victions and sentences of all 52 Mexican nationals;
(6) that this restitution also includes the obligation to take all measures necessary to ensure that a prior violation of Article 36 shall not affect the subsequent proceedings;
(7) that; to the extent that any of the 52 convictions or sentences are not annulled, the United States shall provide, by means of its own choos¬ing, meaningful and effective review and reconsideration of the convic¬tions and sentences of the 52 nationals, and that this obligation cannot be satisfied by means of clemency proceedings or if any municipal law rule or doctrine inconsistent with paragraph (3) above is applied; and
(8) that the United States of America shall ccase its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36 (1) and to ensure compliance with Article 36 (2)/’
On behalf of the Government of the United States,
“On the basis of the tacts and arguments made by the United States in its Counter-Memo rial and in these proceedings, the Government of the United States of America requests that the Court, taking into account that the United States has conformed its conduct to this Court’s Judgment in the LaGrand Case (Germany v. United States of America), not only with respect to German nationals but, consistent with the Declaration of the President of the Court in that case, to all detained foreign nationals, adjudge and declare that the claims of the United Mexican States are dis¬missed/’
. 15. The present proceedings have been brought by Mexico against the United States on the basis of the Vienna Convention, and of the Optional Protocol providing for the jurisdiction of the Court over “disputes arising out of the interpretation or application” of the Convention. Mexico and the United States are, and were at all relevant times, parties to the Vienna Convention and to the Optional Protocol. Mexico claims that the United States has committed breaches of the Vienna Convention in relation to the treatment of a number of Mexican nationals who have been tried, convicted and sentenced to death in criminal proceedings in the United States, The original claim related to 54 such persons, but as a result of subsequent adjustments to its claim made by Mexico (see paragraph 7 above), only 52 individual cases are involved. These criminal proceedings have been taking place in nine different States of the United States, namely California (28 cases), Texas (15 cases), Illinois (three cases), Arizona (one case), Arkansas (one case), Nevada (one case), Ohio (one case), Oklahoma (one case) and Oregon (one case), between 1979 and the present,
16. For convenience, the names of the 52 individuals, and the numbers by which their cases will be referred to, are set out below:
1. Carlos A vena Guillen
2+ Hector Juan Ayala
3. Vicente Benavides Figueroa
4. Constantino Carrera Montenegro
5. Jorge Contreras Lopez
6. Daniel Covarrubias Sanchez
7. Marcos Esquivel Barrera
8. Ruben Gomez Perez
9. Jaime Armando Hoyos
10. Arturo Juarez Suarez
11. Juan Manuel Lopez
12. Jose Lupercio Casares
13. Luis Alberto Maciel Hernandez
14. Abelino Manriquez Jaquez
15. Omar Fuentes Martinez (a.k.a, Luis Aviles de la Cruz)
16. Miguel Angel Martinez Sanchez
17. Martin Mendoza Garcia
18. Sergio Ochoa Tamayo
19. Enrique Parra Duehas
20. Juan de Dios Ramirez Villa
21. Magdaleno Salazar
22. Ramon Salcido Bojorquez
23. Juan Ramon Sanchez Ramirez
24. Ignacio Tafoya Arriola
25. Alfredo Valdez Reyes
26. Eduardo David Vargas
27. Tomas Verano Cruz
28. [Case withdrawn]
29. Samuel Zamudio Jimenez
30. Juan Carlos Alvarez Banda 3L Cesar Roberto Fierro Reyna
32. Hector Garcia Torres
33. Ignacio Gomez
34. Ramiro Hernandez Lianas
35. Ramiro Rubi Ibarra
36. H umber to Leal Garcia
37. Virgilio Maldonado
38. Jose Ernesto Medellin Rojas
39. Roberto Moreno Ramos
40. Daniel Angel Plata Estrada
41. Ruben Ramirez Cardenas
42. Felix Rocha Diaz
43. Oswaldo Regalado Soriano
44. Edgar Arias Tamayo
45. Juan Caballero Hernandez
46. Mario Flo res U rban
47. Gabriel Solache Romero
48. Martin Raul Fong Soto
49. Rafael Camargo Ojeda
50. [Case withdrawn]
51. Carlos Rene Perez Gutierrez
52. Jose Trinidad Loza
53. Osvaldo Netzahualcoyotl Torres Aguilera
54. Horacio Alberto Reyes Camarena
The provisions of the Vienna Convention of which Mexico alleges violations are contained in Article 36. Paragraphs 1 and 2 of this Article are set out respectively in paragraphs 50 and 108 below. Article 36 relates, according to its title, to “Communication and contact with nationals of the sending State”. Paragraph 1 (b) of that Article provides that if a national of that State “is arrested or committed to prison or to custody pending trial or is detained in any other manner”, and he so requests, the local consular post of the sending State is to be notified. The Article goes on to provide that the “competent authorities of the receiving State” shall “inform the person concerned without delay of his rights” in this respect. Mexico claims that in the present case these provisions were not complied with by the United States authorities in respect of the 52 Mexican nationals the subject of its claims. As a result, the United States has according to Mexico committed breaches of paragraph 1 (h); more¬over, Mexico claims, for reasons to be explained below (see paragraphs 98 et $eq*)t that the United States is also in breach of paragraph 1 (a) and (c) and of paragraph 2 of Article 36, in view of the relationship of these provisions with paragraph 1 (b).
As regards the terminology employed to designate the obligations incumbent upon the receiving State under Article 36, paragraph 1 (b)y the Court notes that the Parties have used the terms “inform” and “notify” in differing senses. For the sake of clarity, the Court, when speaking in its own name in the present Judgment, will use the word “inform” when referring to an individual being made aware of his rights under that subparagraph and the word “notify” when referring to the giving of notice to the consular post.
The underlying facts alleged by Mexico may be briefly described as follows: some are conceded by the United States, and some disputed. Mexico states that all the individuals the subject of its claims were Mexi¬can nationals at the time of their arrest, it further contends that the United States authorities that arrested and interrogated these individuals had sufficient information at their disposal to be aware of the foreign nationality of those individuals. According to Mexico’s account, in 50 of the specified cases, Mexican nationals were never informed by the com¬petent United States authorities of their rights under Article 36, para¬graph 1 (b), of the Vienna Convention and, in the two remaining cases, such information was not provided “without delay”, as required by that provision. Mexico has indicated that in 29 of the 52 cases its consular authorities learned of the detention of the Mexican nationals only after death sentences had been handed down. In the 23 remaining cases, Mexico contends that it learned of the cases through means other than notification to the consular post by the competent United States authori-ties under Article 36, paragraph 1 (b). It explains that in five cases this was too late to affect; the trials, that in 15 cases the defendants had already made incriminating statements, and that it became aware of the other three cases only after considerable delay.
20. Of the 52 cases referred to in Mexico’s final submissions, 49 are currently at different stages of the proceedings before United States judi¬cial authorities at state or federal level, and in three cases, those of Mr. Fierro (case No. 31), Mr, Moreno (case No. 39) and Mr. Torres (case No. 53), judicial remedies within the United States have already been exhausted. The Court has been informed of the variety of types of pro¬ceedings and forms of relief available in the criminal justice systems of the United States, which can differ from state to state. In very general terms, and according to the description offered by both Parties in their pleadings, it appears that the 52 cases may be classified into three catego¬ries: 24 cases which are currently in direct appeal; 25 cases in which means of direct appeal have been exhausted, but post-conviction relief (habeas corpus), either at state or at federal level, is still available; and three cases in which no judicial remedies remain. The Court also notes that, in at least 33 cases, the alleged breach of the Vienna Convention was raised by the defendant either during pre-trial, at trial, on appeal or in habeas corpus proceedings, and that some of these claims were dis¬missed on procedural or substantive grounds and others are still pending. To date, in none of the 52 cases have the defendants had recourse to the clemency process.
21. On 9 January 2003, the day on which Mexico filed its Application and a request for the indication of provisional measures, all 52 individ¬uals the subject of the claims were on death row. However, two days later the Governor of the State of Illinois, exercising his power of clemency review, commuted the sentences of all convicted individuals awaiting execution in that State, including those of three individuals named in Mexico’s Application (Mr. Caballero (case No. 45), Mr. Flores (case No. 46) and Mr. Solache (case No. 47)). By a letter dated 20 January 2003, Mexico informed the Court that, further to that decision, it with¬drew its request for the indication of provisional measures on behalf of these three individuals, but that its Application remained unchanged. In the Order of 5 February 2003, mentioned in paragraph 3 above, on the request by Mexico for the indication of provisional measures, the Court considered that it was apparent from the information before it that the three Mexican nationals named in the Application who had exhausted all judicial remedies in the United States (see paragraph 20 above) were at risk of execution in the following months, or even weeks. Consequently, it ordered by way of provisional measure that the United States take all measures necessary to ensure that these individuals would not, be executed pending final judgment in these proceedings. The Court notes that, at the date of the present Judgment, these three individuals have not been executed, but further notes with great concern that, by an Order dated 1 March 2004, the Oklahoma Court of Criminal Appeals has set an execution date of 18 May 2004 for Mr. Torres.
THE MEXICAN OBJECTION TO THE UNITED STATES OBJECTIONS TO JURISDICTION AND ADMISSIBILITY
22. As noted above, the present dispute has been brought before the Court by Mexico on the basis of the Vienna Convention and the Optional Protocol to that Convention. Article I of the Optional Protocol provides:
“Disputes arising out of the interpretation or application of the {Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a Party to the present Protocol.”
23. The United States has presented a number of objections to the jurisdiction of the Court, as well as a number of objections to the admissibility of the claims advanced by Mexico. It is however the conten¬tion of Mexico that all the objections raised by the United States are inadmissible as having been raised after the expiration of the time-limit laid down by the Rules of Court. Mexico draws attention to the text of Article 79, paragraph 1, of the Rules of Court as amended in 2000, which provides that
“Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the deci¬sion upon which is requested before any further proceedings on the merits, shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial”
The previous text of this paragraph required objections to be made “within the time-limit fixed for delivery of the Counter-Memorial”. In the present case the Memorial of Mexico was filed on 23 June 2003; the objections of the United States to jurisdiction and admissibility were presented in its Counter-Memorial, filed on 3 November 2003, more than four months later.
24. The United States has observed that, during the proceedings on the request made by Mexico for the indication of provisional measures in this case, it specifically reserved its right to make jurisdictional arguments at the appropriate stage, and that subsequently the Parties agreed that there should be a single round of pleadings. The Court would however emphasize that parties to cases before it cannot, by purporting to “reserve their rights” to take some procedural action, exempt themselves from the application to such action of the provisions of the Statute and Rules of
Court (ci; Application of the Convention on the Prevention and Punish¬ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)} Order of 13 September 1993, I C.J, Reports 1993~p. 338, para, 28).
The Court notes, however, that Article 79 of the Rules applies only to preliminary objections, as is indicated by the title of the subsection of the Rules which it constitutes. As the Court observed in the Lockerbie cases, “if it is to be covered by Article 79, an objection must. . + possess a ‘pre¬liminary character”, and “Paragraph 1 of Article 79 of the Rules of Court characterizes as ‘preliminary’ an objection ‘the decision upon which is requested before any further proceedings'” (Questions of Inter¬pretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of America), Pre¬liminary Objections, I. C.J. Reports 1998, p. 26, para. 47; p. 131, para. 46); and the effect of the timely presentation of such an objection is that the proceedings on the merits are suspended (paragraph 5 of Article 79), An objection that is not presented as a preliminary objection in accordance with paragraph 1 of Article 79 does not thereby become inadmissible. There are of course circumstances in which the party failing to put for¬ward an objection to jurisdiction might be held to have acquiesced in jurisdiction {Appeal Relating to the Jurisdiction of the ICA O Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13). However, apart from such circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the pro¬ceedings on the merits, but can still argue the objection along with the merits. That is indeed what the United States has done in this case; and, for reasons to be indicated below, many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits. The Court concludes that it should not exclude from consideration the objections of the United States to jurisdiction and admissibility by reason of the fact that they were not presented within three months from the date of filing of the Memorial.
25. The United States has submitted four objections to the jurisdiction of the Court, and five to the admissibility of the claims of Mexico. As noted above, these have not been submitted as preliminary objections under Article 79 of the Rules of Court; and they are not of such a nature that the Court would be required to examine and dispose of all of them in limine, before dealing with any aspect of the merits of the case. Some are expressed to be only addressed to certain claims; some are addressed to questions of the remedies to be indicated if the Court finds that breaches of the Vienna Convention have been committed; and some are of such a nature that they would have to be dealt with along with the merits. The
Court will however now examine each of them in turn.
UNITED STATES OBJECTIONS TO JURISDICTION
26. The United States contends that the Court lacks jurisdiction to decide many of Mexico’s claims, inasmuch as Mexico’s submissions in the Memorial asked the Court to decide questions which do not; arise out of the interpretation or application of the Vienna Convention, and which the United States has never agreed to submit to the Court.
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27. By its first jurisdictional objection, the United States suggested that the Memorial is fundamentally addressed to the treatment of Mexi¬can nationals in the federal and state criminal justice systems of the United States, and the operation of the United States criminal justice sys¬tem as a whole. It suggested that Mexico’s invitation to the Court to make what the United States regards as “far-reaching and unsustainable findings concerning the United States criminal justice systems” would be an abuse of the Court’s jurisdiction. At the hearings, the United States contended that Mexico is asking the Court to interpret and apply the treaty as if it were intended principally to govern the operation of a State’s criminal justice system as it affects foreign nationals,
28. The Court would recall that its jurisdiction in the present case has been invoked under the Vienna Convention and Optional Protocol to determine the nature and extent of the obligations undertaken by the United States towards Mexico by becoming party to that Convention. If and so far as the Court may find that the obligations accepted by the parties to the Vienna Convention included commitments as to the con¬duct of their municipal courts in relation to the nationals of other parties, then in order to ascertain whether there have been breaches of the Con¬vention, the Court must be able to examine the actions of those courts in the light of international law. The Court is unable to uphold the conten¬tion of the United States that, as a matter of jurisdiction, it is debarred from enquiring into the conduct of criminal proceedings in United States courts. How far it may do so in the present case is a matter for the merits. The first objection of the United States to jurisdiction cannot therefore be upheld.
similarly the “detaining, trying, convicting and sentencing” of Mexican nationals could not constitute breaches of Article 36, which merely lays down obligations of notification, The United States deduced from this that the matters raised in Mexico’s first submission are outside the juris¬diction of the Court under the Vienna Convention and the Optional Pro¬tocol, and it maintains this objection in response to the revised submis¬sion, presented by Mexico at the hearings, whereby it asks the Court to adjudge and declare:
“That the United States of America, in arresting, detaining, try¬ing, convicting, and sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by failing to inform, with¬out delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention.”
30. This issue is a question of interpretation of the obligations imposed by the Vienna Convention. It is true that the only obligation of the receiving State toward a foreign national that is specifically enunciated by Article 36, paragraph 1 (b)y of the Vienna Convention is to inform such foreign national of his rights, when he is “arrested or committed to prison or to custody pending trial or is detained in any other manner”; the text does not restrain the receiving State from “arresting, detaining, trying, convicting, and sentencing” the foreign national, or limit its power to do so. However, as regards the detention, trial, conviction and sentence of its nationals, Mexico argues that depriving a foreign national facing criminal proceedings of consular notification and assistance renders those proceedings fundamentally unfair. Mexico explains in this respect that:
“Consular notification constitutes a basic component of due pro¬cess by ensuring both the procedural equality of a foreign national in the criminal process and the enforcement of other fundamental due process guarantees to which that national is entitled”,
and that “It is therefore an essential requirement for fair criminal pro¬ceedings against foreign nationals,” In Mexico’s contention, “consular notification has been widely recognized as a fundamental due process right, and indeed, a human right”. On this basis it argues that the rights of the detained Mexican nationals have been violated by the authorities of the United States, and that those nationals have been “subjected to criminal proceedings without the fairness and dignity to which each per¬son is entitled”. Consequently, in the contention of Mexico, “the integrity of these proceedings has been hopelessly undermined, their outcomes rendered irrevocably unjust”. For Mexico to contend, on this basis, that not merely the failure to notify, but the arrest, detention, trial and con¬viction of its nationals were unlawful is to argue in favour of a particular interpretation of the Vienna Convention. Such an interpretation may or may not be confirmed on the merits, but is not excluded from the juris¬diction conferred on the Court by the Optional Protocol to the Vienna Convention. The second objection of the United States to jurisdiction cannot therefore be upheld.
*
31. The third objection by the United States to the jurisdiction of the Court refers to the first of the submissions in the Mexican Memorial con¬cerning remedies. By that submission, which was confirmed in substance in the final submissions, Mexico claimed that
“Mexico is entitled to restitutio in integrum, and the United States therefore is under an obligation to restore the status quo ante, that is, re-establish the situation that existed at the time of the detention and prior to the interrogation of, proceedings against, and convic¬tions and sentences of, Mexico’s nationals in violation of the United States’ international legal obligations …”
On that basis, Mexico went on in its first submission to invite the Court to declare that the United States was bound to vacate the convictions and sentences of the Mexican nationals concerned, to exclude from any sub¬sequent proceedings any statements and confessions obtained from them, to prevent the application of any procedural penalty for failure to raise a timely defence on the basis of the Convention, and to prevent the appli¬cation of any municipal law rule preventing courts in the United States from providing a remedy for the violation of Article 36 rights.
32. The United States objects that so to require specific acts by the United States in its municipal criminal justice systems would intrude deeply into the independence of its courts; and that for the Court to declare that the United States is under a specific obligation to vacate con¬victions and sentences would be beyond its jurisdiction. The Court, the United States claims, has no jurisdiction to review appropriateness of sentences in criminal cases, and even less to determine guilt or innocence, matters which only a court of criminal appeal could go into.
33. For its part, Mexico points out that the United States accepts that the Court has jurisdiction to interpret the Vienna Convention and to determine the appropriate form of reparation under international law. In Mexico’s view, these two considerations are sufficient to defeat the third objection to jurisdiction of the United States.
34. For the same reason as in respect of the second jurisdictional objection, the Court is unable to uphold the contention of the United States that, even if the Court were to find that; breaches of the Vienna Convention have been committed by the United States of the kind alleged by Mexico, it would still be without jurisdiction to order restitutio in integrum as requested by Mexico. The Court would recall in this regard, as it did in the LaGrand case, that, where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court in order to consider the remedies a party has requested for the breach of the obligation {I.C.J. Reports 2001, p. 485, para, 48). Whether or how far the Court may order the remedy requested by Mexico are matters to be determined as part of the merits of the dis¬pute. The third objection of the United States to jurisdiction cannot therefore be upheld.
+
35. The fourth and last jurisdictional objection of the United States is that “the Court lacks jurisdiction to determine whether or not consular notification is a ‘human right , or to declare fundamental requirements of substantive or procedural due process”. As noted above, it is on the basis of Mexico’s contention that the right to consular notification has been widely recognized as a fundamental due process right, and indeed a human right, that it argues that the rights of the detained Mexican nationals have been violated by the authorities of the United States, and that they have been “subjected to criminal proceedings without the fair-ness and dignity to which each person is entitled”. The Court observes that Mexico has presented this argument as being a matter of inter¬pretation of Article 36, paragraph 1 (b), and therefore belonging to the merits. The Court considers that this is indeed a question of inter¬pretation of the Vienna Convention, for which it has jurisdiction; the fourth objection of the United States to jurisdiction cannot therefore be upheld.
-..UNITED STATES OBJECTIONS TO ADMISSIBILITY
36. In its Counter-Memorial, the United States has advanced a number of arguments presented as objections to the admissibility of Mexico’s claims, It argues that
“Before proceeding, the Court should weigh whether characteris¬tics of the case before it today, or special circumstances related to particular claims, render either the entire case, or particular claims, inappropriate for further consideration and decision by the Court/’
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37, The first objection under this head is that “Mexico’s submissions should be found inadmissible because they seek to have this Court func¬tion as a court of criminal appeal”; there is, in the view of the United States, “no other apt characterization of Mexico’s two submissions in respect of remedies”. The Court notes that this contention is addressed solely to the question of remedies. The United States does not contend on this ground that the Court should decline jurisdiction to enquire into the question of breaches of the Vienna Convention at all, but simply that, if such breaches are shown, the Court should do no more than decide that the United States must provide “review and reconsideration” along the lines indicated in the ludgment in-the LaGrand case (I C.J, Reports 2001, pp. 513-514, para, 125). The Court notes that this is a matter of merits. The first objection of the United States to admissibility cannot therefore be upheld.
of the cases “is in an appropriate posture for review by an international tribunal”.
39. Mexico responds that the rule of exhaustion of local remedies can¬not preclude the admissibility of its claims. It first states that a majority of the Mexican nationals referred to in paragraph 16 above have sought judicial remedies in the United States based on the Vienna Convention and that their claims have been barred, notably on the basis of the pro¬cedural default doctrine. In this regard, it quotes the Court’s statement in the LaGrand case that
“the United States may not, . . rely before this Court on this fact in order to preclude the admissibility of Germany’s [claim] . . ,, as it was the United States itself which had failed to carry out its obliga¬tion under the Convention to inform the LaGrand brothers9′ (IC.J, Reports 2001, p. 488, para. 60).
Further, in respect of the other Mexican nationals, Mexico asserts that
“the courts of the United States have never granted a judicial remedy to any foreign national for a violation of Article 36. The United States courts hold either that Article 36 does not create an individual right, or that a foreign national who has been denied his Article 36 rights but given his constitutional and statutory rights, cannot establish prejudice and therefore cannot get relief.”
It concludes that the available judicial remedies are thus ineffective. As for clemency procedures, Mexico contends that they cannot count for purposes of the rule of exhaustion of local remedies, because they are not a judicial remedy.
40. In its final submissions Mexico asks the Court to adjudge and declare that the United States, in failing to comply with Article 36, para¬graph 1, of the Vienna Convention, has “violated its international legal obligations to Mexico, in its own right and in the exercise of its right of diplomatic protection of its nationals”.
The Court would first observe that the individual rights of Mexican nationals under paragraph I (h) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States. Only when that process is completed and local remedies are exhausted would Mexico be entitled to espouse the individual claims of its nationals through the procedure of diplomatic protection.
In the present case Mexico does not, however, claim to be acting solely on that basis. It also asserts its own claims, basing them on the injury which it contends that it has itself suffered, directly and through its nationals > as a result of the violation by the United States of the obliga¬tions incumbent upon it under Article 36, paragraph 1 fa)r (b) and (c).
The Court would recall that, in the LaGrand case, it recognized that
“Article 36, paragraph 1 [of the Vienna Convention], creates indi¬vidual rights [for the national concerned], which . . . may be invoked in this Court by the national State of the detained person” (I. C.J. Reports 2001, p, 494, para. 77).
It would further observe that violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in sub¬mitting a claim in its own name, request the Court to rule on the viola¬tion of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1 (b). The duty to exhaust local remedies does not apply to such a request. Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection. Without needing to pro¬nounce at this juncture on the issues raised by Che procedural default rule, as explained by Mexico in paragraph 39 above, the Court accord¬ingly finds that the second objection by the United States to admissibility cannot be upheld.
41, The Court now turns to the question of the alleged dual national¬ity of certain of the Mexican nationals the subject of Mexico’s claims. This question is raised by the United States by way of an objection to the admissibility of those claims: the United States contends that in its Memorial Mexico had failed to establish that it may exercise diplomatic protection based on breaches of Mexico’s rights under the Vienna Con¬vention with respect to those of its nationals who are also nationals of the United States. The United States regards it as an accepted principle that, when a person arrested or detained in the receiving State is a national of that State, then even if he is also a national of another State party to the Vienna Convention, Article 36 has no application, and the authorities of the receiving State are not required to proceed as laid down in that Article; and Mexico has indicated that, for the purposes of the present case it does not contest that dual nationals have no right to be advised of their rights under Article 36.
42. It has however to be recalled that Mexico, in addition to seeking to exercise diplomatic protection of its nationals, is making a claim in its own right on the basis of the alleged breaches by the United States of Article 36 of the Vienna Convention. Seen from this standpoint, the question of dual nationality is not one of admissibility, but of merits. A claim may be made by Mexico of breach of Article 36 of the Vienna Con¬vention in relation to any of its nationals, and the United States is there¬upon free to show that, because the person concerned was also a United States national, Article 36 had no application to that person, so that no breach of treaty obl igations could have occurred. Furthermore, as regards the claim to exercise diplomatic protection, the question whether Mexico is entitled to protect a person having dual Mexican and United States nationality is subordinated to the question whether, in relation to such a person, the United States was under any obligation in terms of Article 36 of the Vienna Convention. It is thus in the course of its examination of the merits that the Court will have to consider whether the individuals concerned, or some of them, were dual nationals in law. Without preju-dice to the outcome of such examination, the third objection of the United States to admissibility cannot therefore be upheld.
43. The Court now turns to the fourth objection advanced by the United States to the admissibility of Mexico’s claims ; the contention that
‘The Court should not permit Mexico to pursue a claim against the United States with respect to any individual case where Mexico had actual knowledge of a breach of the [Vienna Convention) but failed to bring such breach to the attention of the United States or did so only after considerable delay.” In the Counter-Memo rial, the United States advances two considerations in support of this contention: that if the cases had been mentioned promptly, corrective action might have been possible; and that by inaction Mexico created an impression that it considered that the United States was meeting its obligations under the Convention, as Mexico understood them. At the hearings, the United States suggested that Mexico had in effect waived its right to claim in respect of the alleged breaches of the Convention, and to seek reparation.
44. As the Court observed
in the case ot Certain Phosphate Lattds in Nauru (Nauru v. Australia), “delay on the part of a claimant State may render an application inadmissible”, but “international law does not lay down any specific time-limit in that regard” (/. C.J. Reports 1992, pp. 253- 254, para. 32). In that case the Court recognized that delay might preju¬dice the respondent State “with regard to both the establishment of the facts and the determination of the content of the applicable law” (ibid, p. 255, para. 36), but it has not been suggested that there is any such risk of prejudice in the present case. So far as inadmissibility might be based on an implied waiver of rights, the Court considers that only a much
more prolonged and consistent inaction on the part of Mexico than any that the United States has alleged might be interpreted as implying such a waiver. Furthermore, Mexico indicated a number of ways in which it brought to the attention of the United States the breaches which it per¬ceived of the Vienna Convention. The fourth objection of the United
States to admissibility cannot therefore be upheld.
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45. The Court has now to examine the objection of the United States that the claim of Mexico is inadmissible in that Mexico should not be allowed to invoke against the United States standards that Mexico does not follow in its own practice. The United States contends that, in accordance with basic principles of administration of justice and the equality of States, both litigants are to be held accountable to the same rules of international law. The objection in this regard was presented in terms of the interpretation of Article 36 of the Vienna Convention, in the sense that, according to the United States, a treaty may not be inter¬preted so as to impose a significantly greater burden on any one party than the other (Diversion of Water from the Meuse, Judgmentt 1937, P.C.I. J., Series A/B, No. 70, p. 20).
46. The Court would recall that the United States had already raised an objection of a similar nature before it in the LaGrand case; there, the Court held that it need not decide “whether this argument of the United States, if true, would result in the inadmissibility of Germany’s submis¬sions”, since the United States had failed to prove that Germany’s own practice did not conform to the standards it was demanding from the United States (/.C/ Reports 2001, p. 489, para. 63).
47. The Court would recall that it is in any event essential to have in mind the nature of the Vienna Convention. It lays down certain stand¬ards to be observed by all States parties, with a view to the “unimpeded conduct of consular relations”, which, as the Court observed in 1979, is important in present-day international law “in promoting the develop¬ment of friendly relations among nations, and ensuring protection and assistance for aliens resident in the territories of other States” {United States Diplomatic and Consular Staff in Tehran (United Slates of America v. Iran), Provisional Measures, Order of 15 December 1979> LCJ. Reports 1979, pp. 19-20, para. 40). Even if it were shown, there¬fore, 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. The fifth objection of the United States to admissibility cannot therefore be upheld.
48, Having established that it has jurisdiction to entertain Mexico’s claims and that they are admissible, the Court will now turn to the merits of those claims.
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ARTICLE 36, PARAGRAPH 1
49. In its final submissions Mexico asks the Court to adjudge and declare that,
“the United States of America, in arresting, detaining, trying, con¬victing, and sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated its international legal obli¬gations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (h) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 nationals* right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention”.
50. The Court has already in its Judgment in the LaGrand case described Article 36, paragraph 1, as “an interrelated regime designed to facilitate the implementation of the system of consular protection” (LCJ. Reports 2001, p. 492, para, 74), It is thus convenient to set out the entirety of that paragraph,
“With a view toward facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to com¬munication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the send¬ing 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 be forwarded by the said authorities
without delay, The said authorities shall inform the person con¬cerned without delay of his rights under this subparagraph ;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to con¬verse and correspond with him and to arrange for his legal rep¬resentation, They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action,”
51. The United States as the receiving State does not deny its duty to perform these obligations. However, it claims that the obligations apply only to individuals shown to be of Mexican nationality alone, and not to those of dual Mexican/United States nationality. The United States further contends inter alia that it has not committed any breach of Article 36, paragraph 1 (b), upon the proper interpretation of “without delay” as used in that, subparagraph.
52. Thus two major issues under Article 36, paragraph 1 (b), that are in dispute between the Parties are, first, the question of the nationality of the individuals concerned; and second, the question of the meaning to be given to the expression “without delay”. The Court will examine each of these in turn.
53. The Parties have advanced their contentions as to nationality in three different legal contexts. The United States has begun by making an objection to admissibility, which the Court has already dealt with (see paragraphs 41 and 42 above). The United States has further contended that a substantial number of the 52 persons listed in paragraph 16 above were United States nationals and that it thus had no obligation to these individuals under Article 36, paragraph 1 (b), The Court will address this aspect of the matter in the following paragraphs. Finally, the Parties disagree as to whether the requirement under Article 36, para¬graph 1 (b), for the information to be given “without delay” becomes operative upon arrest or upon ascertainment of nationality. The Court will address this issue later (see paragraph 63 below).
54+ The Parties disagree as to what each of them must show as regards nationality in connection with the applicability of the terms of Article 36, paragraph 1, and as to how the principles of evidence have been met on the facts of the cases.
$5, Both Parties recognize the well-settled principle in international law that a litigant seeking to establish the existence of a fact bears the burden of proving it (cf- Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, L C.J. Reports 1984, p. 437, para, 101). Mexico acknowledges that it has the burden of proof to show that the 52 persons listed in paragraph 16 above were Mexican nationals to whom the provisions of Article 36, paragraph 1 (b), in principle apply. It claims it has met this burden by providing to the Court the birth certificates of these nationals, and declarations from 42 of them that they have not acquired United States nationality. Mexico further contends that the burden of proof lies on the United States should it wish to contend that particular arrested persons of Mexican nationality were, at the relevant time, also United States nationals.
56. The United States accepts that in such cases it has the burden of proof to demonstrate United States nationality, but contends that none¬theless the “burden of evidence” as to this remains with Mexico . This dis¬tinction is explained by the United States as arising out; of the fact that persons of Mexican nationality may also ha%’e acquired United States citizenship by operation of law, depending on their parents’ dates and places of birth, places of residency, marital status at time of their birth and so forth. In the view of the United States ” virtually all such informa-tion is in the hands of Mexico through the now 52 individuals it repre¬sents”. The United States contends that it was the responsibility of Mexico to produce such information, which responsibility it has not dis¬charged.
57. The Court finds that it is for Mexico to show that the 52 persons listed in paragraph 16 above held Mexican nationality at the time of their arrest. The Court notes that to this end Mexico has produced birth certificates and declarations of nationality, whose contents have not been challenged by the United States,
The Court observes further that the United States has, however3 ques¬tioned whether some of these individuals were not also United States nationals. Thus, the United States has informed the Court that, “in the case of defendant Ayala (case No, 2) we are close to certain that Ayala is a United States citizen”, and that this could be confirmed with absolute certainty if Mexico produced facts about this matter. Similarly Mr. Avena (case No. 1) was said to be “likely” to be a United States citizen, and there was “some possibility” that some 16 other defendants were United States citizens. As to six others, the United States said it “cannot rule out the possibility” of United States nationality. The Court takes the view that it was for the United States to demonstrate that this was so and to furnish the Court with all information on the matter in its possession. In so far as relevant data on that matter are said by the United States to lie within the knowledge of Mexico, it was for the United States to have sought thai; information from the Mexican authorities. The Court cannot accept that, because such information may have been in part in the hands of Mexico, it was for Mexico to produce such information. It was for the United States to seek such information, with sufficient specificity, and to demonstrate both that this was done and that the Mexican authorities declined or failed to respond to such specific requests. At no stage, however, has the United States shown the Court that it made specific enquiries of those authorities about particular cases and that responses were not forthcoming. The Court accordingly concludes that the United States has not met its burden of proof in its attempt to show that persons of Mexican nationality were also United States nationals.
The Court therefore finds that, as regards the 52 persons listed in paragraph 16 above, the United States had obligations under Article 36, paragraph 1 (b).
58. Mexico asks the Court to find that
“the obligation in Article 36, paragraph I, of the Vienna Convention requires notification of consular rights and a reasonable opportunity for consular access before the competent authorities of the receiv¬ing State take any action potentially detrimental to the foreign national’s rights”.
59. Mexico contends that, in each of the 52 cases before the Court, the United States failed to provide the arrested persons with information as to their rights under Article 36, paragraph 1 (b)9 “without delay”. It alleges that in one case, Mr. Esquivel (case No. 7), the arrested person was informed, but only some 18 months after the arrest, while in another, that of Mr* Juarez (case No. 10), information was given to the arrested person of his rights some 40 hours after arrest. Mexico contends that this still constituted a violation, because “without delay” is to be understood as meaning “immediately”, and in any event before any interrogation occurs. Mexico further draws the Court’s attention to the fact that in this case a United States court found that there had been a violation of Article 36, paragraph 1 (b), and claims that the United States cannot disavow such a determination by its own courts. In an Annex to its Memorial, Mexico mentions that, in a third case (Mr. Ayala, case No. 2), the accused was informed of his rights upon his arrival on death row, some four years after arrest. Mexico contends that in the remaining cases the Mexicans concerned were in fact never so informed by the United States authorities.
60. The United States disputes both the facts as presented by Mexico and the legal analysis of Article 36, paragraph 1 (hof the Vienna Con¬vention offered by Mexico. The United States claims that Mr. Solache (case No. 47) was informed of his rights under the Vienna Convention some seven months after his arrest. The United States further claims that many of the persons concerned were of United States nationality and that at least seven of these individuals “appear to have affirmatively claimed to be United States citizens at the time of their arrest”. These cases were said to be those of A vena (case No. 1), Ayala (case No. 2), Benavides (case No. 3), Ochoa (case No* 18), Salcido (case No. 22), Tafoya (case No. 24), and Alvarez (case No. 30). In the view of the United States no duty of consular information arose in these cases. Further, in the contention of the United States, in the cases of Mr, Ayala (case No. 2) and Mr. Salcido (case No. 22) there was no reason to believe that the arrested persons were Mexican nationals at any stage; the information in the case of Mr. Juarez (case No. 10) was given “without delay51,
61. The Court thus now turns to the interpretation of Article 36, para¬graph 1 (b)t having found in paragraph 57 above that it is applicable to the 52 persons listed in paragraph 16. It begins by noting that Article 36, paragraph 1 (h), contains three separate but interrelated elements: the right of the individual concerned to be informed without delay of his rights under Article 36, paragraph 1 (b) the right of the consular post to be notified without delay of the individual’s detention, if he so requests; and the obligation of the receiving State to forward without delay any communication addressed to the consular post by the detained person.
62. The third element of Article 36, paragraph 1 (b), has not been raised on the facts before the Court, The Court thus begins with the right of an arrested or detained individual to information,
63. The Court finds that the duty upon the detaining authorities to give the Article 36, paragraph 1 (b), information to the individual arises once 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. Precisely when this may occur will vary with circumstances. The United States Department of State booklet, Consular Notification and A ccess — Instruc¬tions for Federal State and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Con¬sular Officials to Assist Them, issued to federal, state and local authori¬ties in order to promote compliance with Article 36 of the Vienna Con¬vention points out in such cases that: “most, but not all, persons born outside the United States are not [citizens]. Un familiarity with English may also indicate foreign nationality.” The Court notes that when an arrested person himself claims to be of United States nationality, the realization by the authorities that he is not in fact a United States national, or grounds for that realization, is likely to come somewhat later in time.
64. The United States has told the Court that millions of aliens reside, either legally or illegally, on its territory, and moreover that its laws con¬cerning citizenship are generous. The United States has also pointed out that it is a multicultural society, with citizenship being held by persons of diverse appearance, speaking many languages. The Court appreciates that in the United States the language that a person speaks, or his appearance, does not necessarily indicate that he is a foreign national. Nevertheless, and particularly in view of the large numbers of foreign nationals living in the United States, these very circumstances suggest that it would be desirable for enquiry routinely to be made of the indi¬vidual as to his nationality upon his detention, so that the obligations of the Vienna Convention may be complied with. The United States has informed the Court that some of its law enforcement authorities do routinely ask persons taken into detention whether they are United States citizens. Indeed, were each individual to be told at that time that, should he he a foreign national, he is entitled to ask for his consular post to be contacted, compliance with this requirement under Article 36, para¬graph 1 (h)f would be greatly enhanced. The provision of such informa¬tion could parallel the reading of those rights of which any person taken into custody in connection with a criminal offence must be informed prior to interrogation by virtue of what in the United States is known as the “Miranda rule” ; these rights include, inter alia, the right to remain silent, the right to have an attorney present during questioning, and the right to have an attorney appointed at government expense if the person cannot afford one. The Court notes that, according to the United States, such a practice in respect of the Vienna Convention rights is already being followed in some local jurisdictions.
65. Bearing in mind the complexities explained by the United States, the Court now begins by examining the application of Article 36, paragraph I (b), of the Vienna Convention to the 52 cases. In 45 of these cases, the Court has no evidence that the arrested persons claimed United States nationality, or were reasonably thought to be United States nationals, with specific enquiries being made in timely fashion to verify such dual nationality. The Court has explained in paragraph 57 above what enquiries it would have expected to have been made, within a short time period, and what information should have been provided to the Court.
66. Seven persons, however, are asserted by the United States to have stated at the time of arrest that they were United States citizens. Only in the case of Mr. Salcido (case No. 22) has the Court been pro¬vided by the United States with evidence of such a statement. This has been acknowledged by Mexico. Further, there has been no evidence before the Court to suggest that there were in this case at the same time also indications of Mexican nationality, which should have caused rapid enquiry by the arresting authorities and the providing of consular information “without delay”. Mexico has accordingly not shown that in the case of Mr. Salcido the United States violated its obligations under Article 36, paragraph 1 (h).
67. In the case of Mr. Ayala (case No. 2), while he was identified in a court record in 1989 (three years after his arrest) as a United States citi¬zen, there is no evidence to show this Court that the accused did indeed claim upon his arrest to be a United States citizen. The Court has not been informed of any enquiries made by the United States to confirm these assertions of United States nationality.
68. In the five other cases listed by the United States as cases where the individuals “appear to have affirmatively claimed to be United States citi¬zens at the time of their arrest”, no evidence has been presented that such a statement was made at the time of arrest.
69. Mr, Avena (case No. I) is listed in his arrest report as having been born in California. His prison records describe him as of Mexican nation¬ality. The United States has not shown the Court that it was engaged in enquiries to confirm United States nationality.
70. Mr. Benavides (case No. 3) was carrying an Immigration and Naturalization Service immigration card at the time of arrest in 1991. The Court; has not been made aware of any reason why the arresting authorities should nonetheless have believed at the time of arrest that he was a United States national. The evidence that his defence counsel in June 1993 informed the court that Mr. Benavides had become a United States citizen is irrelevant to what was understood as to his nationality at time of arrest.
71. So far as Mr. Ochoa is concerned (case No, 18), the Court observes that his arrest report in 1990 refers to him as having been born in Mexico, an assertion that is repeated in a second police report. Some two years later details in his court record refer to him as a United States citi¬zen born in Mexico. The Court is not provided with any further details. The United States has not shown this Court that it was aware of, or was engaged in active enquiry as to, alleged United States nationality at the time of his arrest.
72. Mr. Tafoya (case No. 24) was listed on the police booking sheet as having been born in Mexico. No further information is provided by the United States as to why this was done and what, if any, further enquiries were being made concerning the defendant’s nationality,
73. Finally, the last of the seven persons referred to by the United States in this group, Mr. Alvarez (case No. 30), was arrested in Texas on 20 June 1998. Texas records identified him as a United States citizen. Within three days of his arrest, however, the Texas authorities were informed that the Immigration and Naturalization Service was holding investigations to determine whether, because of a previous conviction, Mr Alvarez was subject to deportation as a foreign national. The Court has not been presented with evidence that rapid resolution was sought as to the question of Mr. Alvarez’s nationality.
74. The Court concludes that Mexico has failed to prove the violation by the United States of its obligations under Article 36, paragraph 1 (b), in the case of Mr. Salcido (case No. 22), and his case will not be further commented upon, On the other hand, as regards the other individuals who are alleged to have claimed United States nationality on arrest, whose cases have been considered in paragraphs 67 to 73 above, the argument of the United States cannot be upheld.
75. The question nonetheless remains as to whether, in each of the 45 cases referred to in paragraph 65 and of the six cases mentioned in para¬graphs 67 to 73, the United States did provide the required information to the arrested persons “without delay”. It is to that question that the Court now turns.
76. The Court has been provided with declarations from a number of the Mexican nationals concerned that attest to their never being informed of their rights under Article 36, paragraph 1 (b). The Court at the outset notes that, in 47 such cases, the United States nowhere challenges this fact of information not being given. Nevertheless, in the case of Mr. Hernandez (case No. 34), the United States observes that
“Although the [arresting] officer did not ask Hernandez Lianas whether he wanted them to inform the Mexican Consulate of his arrest, it was certainly not unreasonable for him to assume that an escaped convict would not want the Consulate of the country from which he escaped notified of his arrest.”
The Court notes that the clear duty to provide consular information under Article 36, paragraph 1 (b)t does not invite assumptions as to what the arrested person might prefer, as a ground for not informing him. It rather gives the arrested person, once informed, the right to say he nonetheless does not wish his consular post to be notified. It necessarily follows that in each of these 47 cases, the duty to inform “without delay” has been violated.
77. In four cases, namely Ayala (case No. 2), Esquivel (case No. 7), Juarez (case No. 10) and Solache (case No. 47), some doubts remain as to whether the information that was given was provided without delay. For these, some examination of the term is thus necessary.
78. This is a matter on which the Parties have very different views.
According to Mexico, the timing of the notice to the detained person “is critical to the exercise of the rights provided by Article 36” and the phrase “without delay1′ in paragraph 1 (b) requires “unqualified imme¬diacy”. Mexico further contends that, in view of the object and purpose of Article 36, which is to enable “meaningful consular assistance” and the safeguarding of the vulnerability of foreign nationals in custody,
“consular notification . . . must occur immediately upon detention and prior to any interrogation of the foreign detainee, so that the consul may offer useful advice about the foreign legal system and provide assistance in obtaining counsel before the foreign national makes any ill-informed decisions or the State takes any action poten¬tially prejudicial to his rights”.
79, Thus, in Mexico’s view, it would follow that in any case in which a foreign national was interrogated before being informed of his rights under Article 36, there would ipso facto be a breach of that Article, how¬ever rapidly after the interrogation the information was given to the for¬eign national Mexico accordingly includes the case of Mr. Juarez among those where it claims violation of Article 36, paragraph 1 (b)t as he was interrogated before being informed of his consular rights, some 40 hours after arrest:
80, Mexico has also invoked the travaux preparatoires of the Vienna Convention in support of its interpretation of the requirement that the arrested person be informed “without delay” of the right to ask that the consular post be notified. In particular, Mexico recalled that the phrase proposed to the Conference by the International Law Commission, “with¬out undue delay”, was replaced by the United Kingdom proposal to delete the word “undue”. The United Kingdom representative had explained that this would avoid the implication that “some delay was permissible” and no delegate had expressed dissent with the USSR and Japanese statements that the result of the amendment would be to require information “immediately”.
81, The United States disputed this interpretation of the phrase “with¬out delay”. In its view it did not mean “immediately, and before interro¬gation” and such an understanding was supported neither by the termi¬nology, nor by the object and purpose of the Vienna Convention, nor by its travaux preparatoires. In the booklet referred to in paragraph 63 above, the State Department explains that “without delay” means “there should be no deliberate delay” and that the required action should be taken “as soon as reasonably possible under the circumstances”. It was normally to be expected that “notification to consular officers” would have been made “within 24 to 72 hours of the arrest or detention”- The United States further contended that such an interpretation of the words “without delay” would be reasonable in itself and also allow a consistent interpretation of the phrase as it occurs in each of three different occa¬sions in Article 3 6, paragraph 1 (b)* As for the tra va ux pre pa ra to ires, they showed only that undue or deliberate delay had been rejected as unacceptable.
According to the United States, the purpose of Article 36 was to facilitate the exercise of consular functions by a consular officer:
“The significance of giving consular information to a national is thus limited . . . It is a procedural device that allows the foreign national to trigger the related process of notification . . . [It] cannot possibly be fundamental to the criminal justice process.”
83, The Court now addresses the question of the proper interpretation of the expression “without delay” in the light of arguments put to it by the Parties. The Court begins by noting that the precise meaning of “without delay”, as it is to be understood in Article 36, paragraph 1 (b), is not defined in the Convention. This phrase therefore requires interpre¬tation according to the customary rules of treaty interpretation reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.
84. Article 1 of the Vienna Convention on Consular Relations, which defines certain of the terms used in the Convention, offers no definition of the phrase “without delay”. Moreover, in the different language ver¬sions of the Convention various terms are employed to render the phrases “without delay” in Article 36 and “immediately” in Article 14. The Court observes that dictionary definitions, in the various languages of the Vienna Convention, offer diverse meanings of the term “without delay” (and also of “immediately”). It is therefore necessary to look elsewhere for an understanding of this term.
85. As for the object and purpose of the Convention, the Court observes that Article 36 provides for consular officers to be free to com¬municate with nationals of the sending State, to have access to them, to visit and speak with them and to arrange for their legal representation. It is not envisaged, either in Article 36, paragraph 1, or elsewhere in the Convention, that consular functions entail a consular officer himself or herself acting as the legal representative or more directly engaging in the criminal justice process, Indeed, this is confirmed by the wording of Article 36, paragraph 2, of the Convention. Thus, neither the terms of the Convention as normally understood, nor its object and purpose, suggest that “without delay” is to be understood as “immediately upon arrest and before interrogation”.
86. The Court further notes that, notwithstanding the uncertainties in the iravaux preparaioires9 they too do not support such an interpreta¬tion. During the diplomatic conference, the conference’s expert, former Special Rapporteur of the International Law Commission, explained to the delegates that the words “without undue delay” had been introduced by the Commission, after long discussion in both the plenary and draft¬ing committee, to allow for special circumstances which might permit information as to consular notification not to be given at once. Germany, the only one of two States to present an amendment, proposed adding “but at latest within one month”. There was an extended discussion by many different delegates as to what such outer time-limit would be acceptable. During that debate no delegate proposed “immediately”. The shortest specific period suggested was by the United Kingdom, namely “promptly” and no later than ct48 hours” afterwards. Eventually, in the absence of agreement on a precise time period, the United Kingdom’s other proposal to delete the word “undue” was accepted as the position around which delegates could converge. It is also of interest that there is no suggestion in the travaux that the phrase “without delay” might have different meanings in each of the three sets of circumstances in which it is used in Article 36, paragraph 1 (b).
87. The Court thus finds that “without delay” is not necessarily to be interpreted as “immediately” upon arrest. It further observes that during the Conference debates on this term, no delegate made any connection with the issue of interrogation. The Court considers that the provision in Article 36, paragraph 1 (b), that the receiving State authorities “shall inform the person concerned without delay of his rights” cannot be inter¬preted to signify that the provision of such information must necessarily precede any interrogation, so that the commencement of interrogation before the information is given would be a breach of Article 36.
88. Although, by application of the usual rules of interpretation, “with¬out delay” as regards the duty to inform an individual under Article 36, paragraph 1 (b)t is not to be understood as necessarily meaning “imme¬diately upon arrest”, there is nonetheless a duty upon the arresting authorities -to give that information to an arrested person 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.
89, With one exception, no information as to entitlement to consular notification was given in any of the cases cited in paragraph 77 within any of the various time periods suggested by the delegates to the Confer¬ence on the Vienna Convention, or by the LTnited States itself (see para¬graphs 81 and 86 above). Indeed, the information was given either not at all or at periods very significantly removed from the time of arrest. In the case of Mr. Juarez (case No. 10), the defendant was informed of his consular rights 40 hours after his arrest. The Court notes, however, that Mr. Juarez’s arrest report stated that he had been born in Mexico; more¬over, there had been indications of his Mexican nationality from the time of his initial interrogation by agents of the Federal Bureau of Investi¬gation (FBI) following his arrest. It follows that Mr. Juarez’s Mexican nationality was apparent from the outset of his detention by the United States authorities. In these circumstances, in accordance with its interpre¬tation of the expression “without delay” (see paragraph 88 above), the Court concludes that the United States violated the obligation incumbent upon it under Article 36, paragraph 1 (b), to inform Mr, Juarez without delay of his consular rights. The Court notes that the same finding was reached by a California Superior Court, albeit on different grounds.
90. The Court accordingly concludes that, with respect to each of the individuals listed in paragraph 16, with the exception of Mr. Salcido (case No. 22; see paragraph 74 above), the United States has violated its obli¬gation tinder Article 36, paragraph 1 (b), of the Vienna Convention to provide information to the arrested person.
91. As noted above, Article 36, paragraph 1 (b)3 contains three elements. Thus far, the Court has been dealing with the right of an arrested person to be informed that he may ask for his consular post to be notified. The Court now turns to another aspect of Article 36, paragraph 1 (bThe Court finds the United States is correct in observ¬ing that the fact thai a Mexican consular post was not notified under Article 36, paragraph 1 (b), does not of necessity show that the arrested person was not informed of his rights under that provision. He may have been informed and declined to have his consular post notified. The giving of the information is relevant, however, for satisfying the element in Article 36, paragraph 1 (b), on which the other two elements therein depend.
92. In only two cases has the United States claimed that the arrested person was informed of his consular rights but asked for the consular post not to be notified. These are Mr, Juarez (case No. 10) and Mr. So- lache (case No. 47),
93. The Court is satisfied that when Mr. Juarez (case No. 10) was informed of his consular rights 40 hours after his arrest (see para¬graph 89) he chose not to have his consular post notified. As regards Mr. So lache (case No. 47), however, it is not sufficiently clear to the Court, on the evidence before it, that he requested that his consular post should not be notified. Indeed, the Court has not been provided with any reasons as to why, if a request of non-notification was made, the consular post was then notified some three months later.
94. In a further three cases, the United States alleges that the con¬sular post was formally notified of the detention of one of its Mexican nationals without prior information to the individual as to his consular rights. These are Mr. Covarrubias (case No. 6), Mn Hernandez (case No. 34) and Mr. Reyes (case No, 54). The United States further con¬tends that the Mexican authorities were contacted regarding the case of Mr. Loza (case No. 52).
95. The Court notes that, in the case of Mr. Covarrubias (case No. 6), the consular authorities learned from third parties of his arrest shortly after it occurred. Some 16 months later, a court-appointed interpreter requested that the consulate intervene in the case prior to trial. It would appear doubtful whether an interpreter can be considered a competent authority for triggering the interrelated provisions of Article 36s para¬graph 1 (b)t of the Vienna Convention. In the case of Mr. Reyes (case No. 54), the United States has simply told the Court that an Oregon Department of Justice attorney had advised United States authorities that both the District Attorney and the arresting detective advised the Mexican consular authorities of his arrest. No information is given as to when this occurred, in relation to the date of his arrest Mr. Reyes did receive assistance before his trial, In these two cases, the Court considers that, even on the hypothesis that the conduct of the United States had no serious consequences for the individuals concerned, it did nonetheless constitute a violation of the obligations incumbent upon the United States under Article 36, paragraph 1 (b).
96. In the case of Mr. Loza (case No. 52), a United States Congress¬man from Ohio contacted the Mexican Embassy on behalf of Ohio prosecutors, some four months after the accused’s arrest, “to enquire about the procedures for obtaining a certified copy of Loza’s birth cer¬tificate”. The Court has not been provided with a copy of the Congress¬man’s letter and is therefore unable to ascertain whether it explained that Mr. Loza had been arrested. The response from the Embassy (which is also not included in the documentation provided to the Court) was passed by the Congressman to the prosecuting attorney, who then asked the Civil Registry of Guadalajara for a copy of the birth certificate. This request made no specific mention of Mr. Loza’s arrest. Mexico con¬tends that its consulate was never formally notified of Mr. Loza’s arrest, of which it only became aware after he had been convicted and sentenced to death, Mexico includes the case of Mr. Loza among those in which the United States was in breach of its obligation of consular notification. Taking account of all these elements, and in particular of the fact that the Embassy was contacted four months after the arrest, and that the consular post became aware of the defendant’s detention only after he had been convicted and sentenced, the Court concludes that in the case of Mr. Loza the United States violated the obligation of consular notification without delay incumbent upon it under Article 36, paragraph 1 (b).
97. Mr. Hernandez (case No. 34) was arrested in Texas on Wednesday 15 October 1997. The United States authorities had no reason to believe he might have American citizenship. The consular post was notified the following Monday, that is five days (corresponding to only three working days) thereafter. The Court finds that, in the circumstances, the United States did notify the consular post without delay, in accordance with its obligation under Article 36, paragraph 1 (b)>
98. In the first of its final submissions, Mexico also asks the Court to find that the violations it ascribes to the United States in respect of Article 36, paragraph 1 (b), have also deprived “Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention”,
99. The relationship between the three subparagraphs of Article 36, paragraph 1, has been described by the Court in its Judgment in the LaGrand case (/. C L Reports 2001, p. 492, para, 74) as “an interrelated regime”. The legal conclusions to be drawn from that interrelationship necessarily depend upon the facts of each case. In the LaGrand case, the Court found that the failure for 16 years to inform the brothers of their right to have their consul notified effectively pre¬vented the exercise of other rights that Germany might have chosen to exercise under subparagraphs (a) and (c).
100. It is necessary to revisit the interrelationship of the three subpara¬graphs of Article 36, paragraph 1, in the light of the particular facts and circumstances of the present case.
101. The Court would first recall that, in the case of Mr. Juarez (case No. 10) (see paragraph 93 above), when the defendant was informed of his rights, he declined to have his consular post notified. Thus in this case there was no violation of either subparagraph (a) or subparagraph (c) of Article 36, paragraph 1.
102. In the remaining cases, because of the failure of the United States to act in conformity with Article 36, paragraph 1 (b), Mexico was in effect precluded (in some cases totally, and in some cases for prolonged periods of time) from exercising its right under paragraph 1 (a) to com¬municate with its nationals and have access to them. As the Court has already had occasion to explain, it is immaterial whether Mexico would have offered consular assistance, “or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights” (7. Reports 2001, p. 492, para. 74), which might have been acted upon.
103. The same is true, pari passu, of certain rights identified in sub¬paragraph (c): “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, and to con¬verse and correspond with him . . .s
104. On the other hand, and on the particular facts of this case, no such generalized answer can be given as regards a further entitlement mentioned in subparagraph (c), namely, the right of consular officers “to arrange for [the] legal representation” of the foreign national. Mexico has laid much emphasis in this litigation upon the importance of consular officers being able to arrange for such representation before and during trial and especially at sentencing, in cases in which a severe penalty may be imposed . Mexico has further indicated the importance of any financial or other assistance that consular officers may provide to defence counsel, inter alia for investigation of the defendant’s family background and mental condition, when such information is relevant to the case. The Court observes that the exercise of the rights of the sending State under Article 36, paragraph 1 (c)t depends upon notification by the authorities of the receiving State. It may be, however, that information drawn to the attention of the sending State by other means may still enable its consular officers to assist in arranging legal representation for its national In the following cases, the Mexican consular authorities learned of their national’s detention in time to provide such assistance, either through notification by United States authorities (albeit belatedly in terms of Article 36, paragraph 1 (h)) or through other channels: Benavides (case No. 3); Covarrubias (case No. 6); Esquivel (case No, 7); Hoyos (case No. 9); Mendoza (case No. 17); Ramirez (case No. 20); Sanchez (case No. 23); Vera no (case No. 27); Zamudio (case No. 29); Gomez (case No. 33); Hernandez (case No. 34); Ramirez (case No. 41); Rocha (case No. 42); So lache (case No, 47); Camargo (case No. 49) and Reyes (case No. 54).
105. In relation to Mr. Manriquez (case No. 14), the Court lacks pre¬cise information as to when his consular post was notified. It is merely given to understand that it was two years prior to conviction, and that Mr. Manriquez himself had never been informed of his consular rights. There is also divergence between the Parties in regard to the case of Mr. Fuentes (case No. 15), where Mexico claims it became aware of his detention during trial and the United States says this occurred during jury selection, prior to the actual commencement of the trial. In the case of Mr, Arias (case No. 44), the Mexican authorities became aware of his detention less than one week before the commencement of the trial. In those three cases, the Court concludes that the United States violated its obligations under Article 36, paragraph 1 (c).
106. On this aspect of the case, the Court thus concludes:
(1) that the United States committed breaches of the obligation incum¬bent upon it under Article 36, paragraph 1 (b), of the Vienna Con¬vention to inform detained Mexican nationals of their rights under that paragraph, in the case of the following 51 individuals: A vena (case No. 1), Ayala (case No. 2), Benavides (case No, 3), Carrera (case No. 4), Contreras (case No, 5), Covarrubias (case No. 6), Esquivel (case No. 7), Gomez (case No. 8), Hoyos (case No. 9), Juarez (case No. 10), Lopez (case No. 11), Lupercio (case No. 12), Maciel (case No. 13), Manriquez (case No. 14), Fuentes (case No. 15), Martinez (case No. 16), Mendoza (case No. 17), Ochoa (case No. 18), Parra (case No. 19), Ramirez (case No. 20), Salazar (case No. 21), Sanchez (case No. 23), Tafoya (case No. 24), Valdez (case No. 25), Vargas (case No. 26), Verano (case No. 27), Zamudio (case No. 29), Alvarez (case No. 30), Fierro (case No. 31), Garcia (case No, 32), Gomez (case No. 33), Hernandez (case No. 34), Ibarra (case No* 35), Leal (case No. 36), Maldonado (case No. 37), Medellhi (case No. 38), Moreno (case No. 39), Plata (case No. 40), Ramirez (case No. 41), Rocha (case No. 42), Regalado (case No. 43), Arias (case No. 44), Caballero (case No. 45), Flores (case No. 46), Solache (case No. 47), Fong (case No. 48), Camargo (case No. 49), Perez (case No. 51), Loza (case No. 52), Torres (case No. 53) and Reyes (case No. 54);
(2) that the United States committed breaches of the obligation incum¬bent upon it under Article 36, paragraph 1 (b), to notify the Mexi¬can consular post of the detention of the Mexican nationals listed in subparagraph (1) above, except in the cases of Mr. Juarez (No. 10) and Mr. Hernandez (No. 34);
(3) that by virtue of its breaches of Article 36, paragraph 1 (b)> as described in subparagraph (2) above, the United States also violated the obligation incumbent upon it under Article 36, paragraph 1 (a), of the Vienna Convention to enable Mexican consular officers to communicate with and have access to their nationals, as well as its obligation under paragraph 1 (c) of that Article regarding the right of consular officers to visit their detained nationals;
(4) that the United States, by virtue of these breaches of Article 36, para¬graph 1 (b)> also violated the obligation incumbent upon it under paragraph 1 (c) of that Article to enable Mexican consular officers to arrange for legal representation of their nationals in the case of the following individuals: Avena (case No. 1), Ayala (case No. 2), Car¬rera (case No. 4), Contreras (case No. 5), Gomez (case No. 8), Lopez (case No. 11), Lupercio (case No. 12), Maciel (case No, 13), Man¬riquez (case No. 14), Fuentes (case No. 15), Martinez (case No. 16), Ochoa (case No. 18), Parra (case No. 19), Salazar (case No. 21), Tafoya (case No. 24), Valdez (case No. 25), Vargas (case No. 26), Alvarez (case No. 30), Fierro (case No, 31), Garcia (case No. 32), Ibarra (case No. 35), Leal (case No, 36), Maldonado (case No. 37), Medellm (case No. 38), Moreno (case No. 39), Plata (case No. 40), Regalado (case No. 43), Arias (case No. 44), Caballero (case No, 45),
Flores (case No. 46), Fong (case No. 48), Perez (case No. 51), Loza (case No. 52) and Torres (case No. 53).
*
ARTICLE 36, PARAGRAPH 2
107. In its third final submission Mexico asks the Court to adjudge and declare that
“the United States violated its obligations under Article 36 (2) of the Vienna Convention by failing to provide meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1)”.
10S. Article 36, paragraph 2, provides:
“The rights referred to in paragraph 1 of this article shall be exer¬cised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regu¬lations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.”
109. In this connection, Mexico has argued that the United States
“By applying provisions of its municipal law to defeat or foreclose remedies for the violation of rights conferred by Article 36 — thus failing to provide meaningful review and reconsideration of severe sentences imposed in proceedings that violated Article 36 — < . . has violated, and continues to violate, the Vienna Convention.”
More specifically, Mexico contends that:
“The United States uses several municipal legal doctrines to pre¬vent finding any legal effect from the violations of Article 36. First, despite this Court’s clear analysis in LaGrand, LIS courts, at both the state and federal level, continue to invoke default doctrines to bar any review of Article 36 violations — even when the national had been unaware of his rights to consular notification and communica¬tion and thus his ability to raise their violation as an issue at trial, due to the competent authorities’ failure to comply with Article 36/’
110. Against this contention by Mexico, the United States argues that: “the criminal justice systems of the United States address all errors
in process through both judicial and executive clemency proceed¬ings, relying upon the latter when rules of default have closed out the possibility of the former. That is, the Maws and regulations’ of the United States provide for the correction of mistakes that may be relevant to a criminal defendant to occur through a combination of judicial review and clemency. These processes together, working with other competent authorities, give full effect to the purposes for which Article 36 (1) is intended, in conformity with Article 36 (2), And, insofar as a breach of Article 36 (1) has occurred, these pro¬cedures satisfy the remedial function of Article 36 (2) by allowing the United States to provide review and reconsideration of convic¬tions and sentences consistent with LaGrand”
111. The “procedural default” rule in United States law has already been brought to the attention of the Court in the LaGrand case. The fol¬lowing brief definition of the rule was provided by Mexico in its Memo¬rial in this case and has not been challenged by the United States: “a defendant who could have raised, but fails to raise, a legal issue at trial will generally not be permitted to raise it in future proceedings, on appeal or in a petition for a writ of habeas corpusThe rule requires exhaustion of remedies, inter alia, at the state level and before a habeas corpus motion can be filed with federal courts. In the LaGrand case, the rule in question was applied by United States federal courts; in the present case, Mexico also complains of the application of the rule in certain state courts of criminal appeal.
112. The Court has already considered the application of the “pro¬cedural default” rule, alleged by Mexico to be a hindrance to the full implementation of the international obligations of the United States under Article 36, in the LaGrand case, when the Court addressed the issue of its implications for the application of Article 36, paragraph 2, of the Vienna Convention, The Court emphasized that “a distinction must be drawn between that rule as such and its specific application in the present case”. The Court stated:
“In itself, the rule does not violate Article 36 of the Vienna Con¬vention. The problem arises when the procedural default rule does not allow the detained individual to challenge a conviction and sen¬tence by claiming, in reliance on Article 36, paragraph 1, of the Con¬vention, that the competent national authorities failed to comply with their obligation to provide the requisite consular information ‘without delay*, thus preventing the person from seeking and obtain¬ing consular assistance from the sending State.” (I.C.J. Reports 2001, p. 497, para. 90.)
On this basis, the Court concluded that “the procedural default rule prevented counsel for the LaGrands to effectively challenge their convic¬tions and sentences other than on United States constitutional grounds” (/. C.J. Reports 2001, p. 497, para. 91). This statement of the Court seems equally valid in relation to the present case, where a number of Mexican nationals have been placed exactly in such a situation.
113. The Court will return to this aspect below, in the context of Mexi¬co’s claims as to remedies. For the moment, the Court simply notes that the procedural default rule has not been revised, nor has any provision been made to prevent its application in cases where it has been the failure of the United States itself to inform that may have precluded counsel from being in a position to have raised the question of a violation of the Vienna Convention in the initial trial. It thus remains the case that the procedural default rule may continue to prevent courts from attaching legal significance to the fact, inter alia, that the violation of the rights set forth in Article 36, paragraph 1, prevented Mexico, in a timely fashion, from retaining private counsel for certain nationals and otherwise assist¬ing in their defence. In such cases, application of the procedural default rule would have the effect of preventing “full effect [from being] given to the purposes for which the rights accorded under this article are intended”, and thus violate paragraph 2 of Article 36. The Court notes moreover that in several of the cases cited in Mexico’s final submissions the pro¬cedural default rule has already been applied, and that in others it could be applied at subsequent stages in the proceedings. However, in none of the cases, save for the three mentioned in paragraph 114 below, have the criminal proceedings against the Mexican nationals concerned already reached a stage at which there is no further possibility of judicial re¬examination of those cases; that is to say, all possibility is not yet excluded of “review and reconsideration” of conviction and sentence, as called for in the LaGrand case, and as explained further in paragraphs 128 and fol¬lowing below. It would therefore be premature for the Court to conclude at this stage that, in those cases, there is already a violation of the obli¬gations under Article 36, paragraph 2, of the Vienna Convention.
114. By contrast, the Court notes that in the case of three Mexican nationals, Mr. Fierro (case No. 31), Mr. Moreno (case No. 39), and Mr. Torres (case No, 53), conviction and sentence have become final. Moreover, in the case of Mr. Torres the Oklahoma Court of Criminal Appeals has set an execution date (see paragraph 21 above, in fine). The Court must therefore conclude that, in relation to these three indi¬viduals, the United States is in breach of the obligations incumbent
upon it under Article 36, paragraph 2, of the Vienna Convention.
LEGAL CONSEQUENCES OF THE BREACH
Having concluded that in most of the cases brought before the Court by Mexico in the 52 instances, there has been a failure to observe the obligations prescribed by Article 36, paragraph I (b)9 of the Vienna Convention, the Court now proceeds to the examination of the legal consequences of such a breach and of what legal remedies should be con¬sidered for the breach.
Mexico in its fourth, fifth and sixth submissions asks the Court to adjudge and declare:
“(4) that pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals, Mexico is entitled to full reparation for these injuries in the form of restitutio in integrum;
(5) that this restitution consists of the obligation to restore the status quo ante by annulling or otherwise depriving of full force or effect the conviction and sentences of all 52 Mexican nationals; [and]
(6) that this restitution also includes the obligation to take all measures necessary to ensure that a prior violation of Article 36 shall not affect the subsequent proceedings.”
117. In support of its fourth and fifth submissions, Mexico argues that “It is well-established that the primary form of reparation available to a State injured by an internationally wrongful act is restitutio in integrum” y and that “The United States is therefore obliged to take the necessary action to restore the status quo ante in respect of Mexico’s nationals detained, tried, convicted and sentenced in violation of their internation¬ally recognized rights,” To restore the status quo ante, Mexico contends that “restitution here must take the form of annulment of the convictions and sentences that resulted from the proceedings tainted by the Article 36 violations”, and that “It follows from the very nature of restitutio that, when a violation of an international obligation is manifested in a judicial act, that act must be annulled and thereby deprived of any force or effect in the national legal system.” Mexico therefore asks in its submissions that the convictions and sentences of the 52 Mexican nationals be annulled, and that, in any future criminal proceedings against these 52 Mexican nationals, evidence obtained in breach of Article 36 of the Vienna Convention be excluded.
118. The United States on the other hand argues:
“LaGrancts holding calls for the United States to provide, in each case, ‘review and reconsiderationthat ‘takes account of the viola¬tion, not “review and reversal’, not across-the-board exclusions of evidence or nullification of convictions simply because a breach of Article 36 (1) occurred and without regard to its effect upon the con¬viction and sentence and, not ♦ . . (a precise, concrete, stated result: to re-establish the status quo ante3”.
119. The general principle on the legal consequences of the commis¬sion of an internationally wrongful act was stated by the Permanent Court of International Justice in the Factory at Chorzow case as follows: “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.” (Fac¬tory at Chorzow, Jurisdiction, 1927, P. CI. J., Series A, No. 9, p. 21.) What constitutes “reparation in an adequate form” clearly varies depend¬ing upon the concrete circumstances surrounding each case and the pre¬cise nature and scope of the injury, since the question has to be examined from the viewpoint of what is the “reparation in an adequate form” that corresponds to the injury. In a subsequent phase of the same case, the Permanent Court went on to elaborate on this point as follows:
“The essential principle contained in the actual notion of an illegal act — a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals — is that reparation must, as far as possible, wipe out all the conse¬quences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” (Factory at Chorzow, Merits, 1928, P.C.LJ., Series A, No. 1.7y p. 47.)
120. In the LaGrand case the Court made a general statement on the principle involved as follows;
“The Court considers in this respect that if the United States, not-withstanding its commitment [to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (byI], should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been sub¬jected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsid¬eration of the conviction and sentence by taking account of the vio¬lation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States;” (LCJ, Reports 2001, pp. 513-514, para. 125.)
12L Similarly, in the present case the Court’s task is to determine what would be adequate reparation for the violations of Article 36. It should be clear from what has been observed above that the internation¬ally wrongful acts committed by the United States were the failure of its competent authorities to inform the Mexican nationals concerned, to notify Mexican consular posts and to enable Mexico to provide consular assistance. It follows that the remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals’ cases by the United States courts, as the Court will explain further in paragraphs, 128 to 134 below, with a view to ascertaining whether in each case the violation of Article 36 com¬mitted by the competent authorities caused actual prejudice to the defend¬ant in the process of administration of criminal justice.
122. The Court reaffirms that the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing. The question of whether the violations of Article 36, para¬graph 1, are to be regarded as having, in. the causal seq uence 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.
123. It is not to be presumed, as Mexico asserts, that partial or total annulment of conviction or sentence provides the necessary and sole remedy. In this regard, Mexico cites the recent Judgment of this Court in the case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v, Belgium), in which the “Court ordered the cancellation of an arrest warrant issued by a Belgian judicial official in violation of the international immunity of the Congo Minister for Foreign Affairs”. However, the present case has clearly to be distinguished from the Arrest Warrant case. In that case, the question of the legality under international law of the act of issuing the arrest warrant against the Congolese Minister for Foreign Affairs by the Belgian judicial authori¬ties was itself the subject-matter of the dispute. Since the Court found that act to be in violation of international law relating to immunity, the proper legal consequence was for the Court to order the cancellation of the arrest warrant in question {I.C.J. Reports 2002, p. 33). By contrast, in the present case it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them.
124. Mexico has further contended that the right to consular notifica¬tion and consular communication under the Vienna Convention is a fun¬damental human right that constitutes part of due process in criminal proceedings and should be guaranteed in the territory of each of the Con¬tracting Parties to the Vienna Convention; according to Mexico, this right, as such, is so fundamental that its infringement will ipso facto pro¬duce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. Whether or not the Vienna Convention rights are human rights is not a matter that this Court need decide. The Court would, however, observe that neither the text nor the object and purpose of the Convention, nor any indication in the travaux preparatoires, support the conclusion that Mexico draws from its contention in that regard.
125. For these reasons, Mexico’s fourth and fifth submissions cannot be upheld.
126. The reasoning of the Court on the fifth submission of Mexico is equally valid in relation to the sixth submission of Mexico. In elaboration of its sixth submission, Mexico contends that,
“As an aspect of restitutio in integrum, Mexico is also entitled to an order that in any subsequent criminal proceedings against the nationals, statements and confessions obtained prior to notification to the national of his right to consular assistance be excluded.”
Mexico argues that “The exclusionary rule applies in both common law and civil law jurisdictions and requires the exclusion of evidence that is obtained in a manner that violates due process obligations”, and on this basis concludes that
“The status of the exclusionary rule as a general principle of law permits the Court to order that the United States is obligated to apply this principle in respect of statements and confessions given to United States law enforcement officials prior to the accused Mexican nationals being advised of their consular rights in any subsequent criminal proceedings against them.”
127. The Court does not consider that it is necessary to enter into an examination of the merits of the contention advanced by Mexico that the “exclusionary rule” is “a general principle of law under Article 38 (1) (c) of the . . . Statute” of the Court. The issue raised by Mexico in its sixth submission relates to the question of what legal consequences flow from the breach of the obligations under Article 36, paragraph 1 — a question which the Court has already sufficiently discussed above in relation to the fourth and the fifth submissons of Mexico. The Court is of the view that this question is one which has to be examined under the concrete circum¬stances of each case by the United States courts concerned in the process of their review and reconsideration. For this reason, the sixth submission of Mexico cannot be upheld.
128. While the Court has rejected the fourth, fifth and sixth submis¬sions of Mexico relating to the remedies for the breaches by the United
States of its international obligations under Article 36 of the Vienna Con¬vention, the fact remains that such breaches have been committed, as the Court has found, and it is thus incumbent upon the Court to specify what remedies are required in order to redress the injury done to Mexico and to its nationals by the United States through non-compliance with those international obligations. As has already been observed in paragraph 120, the Court in the LaGrand Judgment stated the general principle to be applied in such cases by way of a remedy to redress an injury of this kind (LCJ Reports 2001, pp. 513-514, para” 125).
129. In this regard, Mexico’s seventh submission also asks the Court to adjudge and declare:
“That to the extent that any of the 52 convictions or sentences are not annulled, the United States shall provide, by means of its own choosing, meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals, and that this obliga¬tion cannot be satisfied by means of clemency proceedings or if any municipal law rule or doctrine [that fails to attach legal significance to an Article 36 (1) violation] is applied.”
130. On this question of “review and reconsideration”, the United States takes the position that it has indeed conformed its conduct to the LaGrand Judgment. In a further elaboration of this point, the United States argues that “[t]he Court said in La Grand that the choice of means for allowing the review and reconsideration it called for ‘must be left’ to the United States”, but that “Mexico would not leave this choice to the United States but have the Court undertake the review instead and decide at once that the breach requires the conviction and sentence to be set aside in each case”.
13 L In stating in its Judgment in the LaGrand case that “the United States of America, by means of lis own choosing, shall allow the review and reconsideration of the conviction and sentence” (/. C.7 Reports 2001, p. 516, para. 128 (7); emphasis added), the Court acknowledged that the concrete modalities for such review and reconsideration should be left primarily to the United States, It should be underlined, however, that this freedom in the choice of means for such review and reconsidera¬tion is not without qualification: as the passage of the Judgment quoted above makes abundantly clear, such review and reconsideration has to be carried out “by taking account of the violation of the rights set forth in the Convention” (LCJ. Reports 2001, p. 514, para. 125), including, in particular, the question of the legal consequences of the violation upon the criminal proceedings that have followed the violation,
132. The United States argues (1) “that the Court’s decision in LaGrand in calling for review and reconsideration called for a process to re-exam¬ine a conviction and sentence in light of a breach of Article 36”; (2) that, “in calling for a process of review, the Court necessarily implied that one legitimate result of that process might be a conclusion that the conviction and sentence should stand”; and (3) “that the relief Mexico seeks in this case is flatly inconsistent with the Judgment in LaGrand: it seeks pre¬cisely the award of a substantive outcome that the LaGrand Court declined to provide”.
133. However, the Court wishes to point out that the current situation in the United States criminal procedure, as explained by the Agent at the hearings, is that
“If the defendant alleged at trial that a failure of consular informa¬tion resulted in harm to a particular right essential to a fair trial, an appeals court can review how the lower court handled that claim of prejudice”s
but that
“If the foreign national did not raise his Article 36 claim at trial, he may face procedural constraints [i.e., the application of the pro¬cedural default rule] on raising that particular claim in direct or col¬lateral judicial appeals” (emphasis added).
As a result, a claim based on the violation of Article 36, paragraph 1, of the Vienna Convention, however meritorious in itself, could be barred in the courts of the United States by the operation of the procedural default rule (see paragraph 111 above).
134. It is not sufficient for the United States to argue that “[wjhatever label [the Mexican defendant] places on his claim, his right ♦ . ♦ must and will be vindicated if it is raised in some form at trial” (emphasis added), and that
“In that way, even though a failure to label the complaint as a breach of the Vienna Convention may mean that he has technically speaking forfeited his right to raise this issue as a Vienna Conven¬tion claim, on appeal that failure would not bar him from independ¬ently asserting a claim that he was prejudiced because he lacked this critical protection needed for a fair trial’9 (Emphasis added,)
The crucial point in this situation is that, by the operation of the procedural default rule as it is applied at present, the defendant is effectively barred from raising the issue of the violation of his rights under Article 36 of the Vienna Convention and is limited to seeking the
vindication of his rights under the United States Constitution.
*
135. Mexico, in the latter part of its seventh submission, has stated that “this obligation [of providing review and reconsideration] cannot be satisfied by means of clemency proceedings”. Mexico elaborates this point by arguing first of all that “the United States’s reliance on clemency proceedings is wholly inconsistent with its obligation to provide a remedy, as that obligation was found by this Court in LaGrand*. More specifically, Mexico contends:
“First, it is clear that the Court’s direction to the United States in LaGrand clearly contemplated that ‘review and reconsideration’ would be carried out by judicial procedures ….
Second, the Court was fully aware that the LaGrand brothers had received a clemency hearing, during which the Arizona Pardons Board took into account the violation of their consular rights. Accordingly, the Court determined in LaGrand that clemency review alone did not constitute the required ‘review and reconsideration’. .,
Finally, the Court specified that the United States must ‘allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention’ , , . it is a basic matter of U.S. criminal procedural law that courts review convictions; clemency panels do not. With the rare exception of pardons based on actual innocence, the focus of capital clemency review is on the propriety of the sentence and not on the underlying conviction.”
Furthermore, Mexico argues that the clemency process is in itself an ineffective remedy to satisfy the international obligations of the United States. It concludes: “clemency review is standardless, secretive, and immune from judicial oversight”.
Finally, in support of its contention, Mexico argues that
“the failure of state clemency authorities to pay heed to the interven¬tion of the US Department of State in cases of death-sentenced Mexican nationals refutes the [United States] contention that clem¬ency review will provide meaningful consideration of the violations of rights conferred under Article 36”.
136. Against this contention of Mexico, the United States claims that it “gives Tull effect’ to the ‘purposes for which the rights accorded under [Article 36, paragraph 1J are intended’ through executive clemency*3. It argues that “[t]be clemency process , . . is well suited to the task of pro¬viding review and reconsideration”. The United States explains that “Clemency . . . is more than a matter of grace; it is part of the overall scheme for ensuring justice and fairness in the legal process” and that “Clemency procedures are an integral part of the existing ‘laws and regu¬lations’ of the United States through which errors are addressed”.
137. Specifically in the context of the present case, the United States contends that the following two points are particularly noteworthy;
“First, these clemency procedures allow for broad participation by advocates of clemency, including an inmate’s attorney and the send¬ing state’s consular officer ♦ ♦ . Second, these clemency officials are not bound by principles of procedural default, finality, prejudice standards, or any other limitations on judicial review. They may consider any facts and circumstances that they deem appropriate and relevant, including specifically Vienna Convention claims,”
138. The Court would emphasize that the “review and reconsidera¬tion” prescribed by it in the LaGrand case should be effective. Thus it should “tak[e] account of the violation of the rights set forth in [the] Con¬vention” (LC.L Reports 200], p. 516, para. 128 (7)) and guarantee that the violation and the possible prejudice caused by that violation will be fully examined and taken into account in the review and reconsideration process. Lastly, review and reconsideration should be both of the sen¬tence and of the conviction,
139. Accordingly, in a situation of the violation of rights under Article 36, paragraph 1, of the Vienna Convention, the defendant raises his claim in this respect not as a case of “harm to a particular right; essen¬tial to a fair trial” — a concept relevant to the enjoyment of due process rights under the United States Constitution — but as a case involving the infringement of his rights under Article 36, paragraph L The rights guar¬anteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with in relation to the individual con¬cerned, irrespective of the due process rights under United States consti¬tutional law. In this regard, the Court would point out that what is crucial in the review and reconsideration process is the existence of a pro¬cedure 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.
140. As has been explained in paragraphs 128 to 134 above, the Court is of the view that, in cases where the breach of the individual rights of Mexican nationals under Article 36, paragraph 1 (h), of the Convention has resulted, in the sequence of judicial proceedings that has followed, in the individuals concerned being subjected to prolonged detention or con¬victed and sentenced to severe penalties, the legal consequences of this breach have to be examined and taken into account in the course ot review and reconsideration. The-Court considers that it is the judicial process that is suited to this task,
141. The Court in the LaGrand case left to the United States the choice of means as to how re view and reconsideration should be achieved, especially in the light of the procedural default rule. Nevertheless, the premise on which the Court proceeded in that case was that the process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned,
142. As regards the clemency procedure, the Court notes that this per¬forms an important function in the administration of criminal justice in the United States and is “the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” {Herr era v. Collins, 506 US 390 (1993) at pp. 411-412). The Court accepts that executive clemency, while not judicial, is an integral part of the overall scheme for ensuring justice and fairness in the legal process within the United States criminal justice system. It must, however, point out that what is at issue in the present case is not whether executive clemency as an institution is or is not an integral part of the “existing laws and regulations of the United States”, but whether the clemency process as practised within the criminal justice systems of different states in the United States can, in and of itself, qualify as an appropriate means for undertaking the effective “review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention”, as the Court prescribed in the LaGrand Judgment {LCJ. Reports 2001, p. 514, para. 125).
143. It may be true, as the United States argues, that in a number of cases “clemency in fact results in pardons of convictions as well as com¬mutations of sentences”. In that sense and to that extent, it might be argued that the facts demonstrated by the United States testify to a degree of effectiveness of the clemency procedures as a means of relievi ng defendants on death row from execution. The Court notes, however, that the clemency process, as currently practised within the United States criminal justice system, does not appear to meet the requirements described in paragraph 138 above and that it is therefore not sufficient in itself to serve as an appropriate means of “review and reconsideration” as envisaged by the Court in the LaGrand case. The Court considers never¬theless that appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention, as has occurred in the case of the three Mexican nationals referred to in paragraph 114 above.
144. Finally, the Court will consider the eighth submission of Mexico, in which it asks the Court to adjudge and declare :
“That the [United States] shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36 (1) and to ensure compliance with Article 36 (2).”
145. In this respect, Mexico recognizes the efforts by the United States to raise awareness of consular assistance rights, through the distribution of pamphlets and pocket cards and by the conduct of training pro¬grammes, and that the measures adopted by the United States to that end were noted by the Court in its decision in the LaGrand case (I. C.J. Reports 200/, pp+ 511-513, paras. 121, 123-124). Mexico, however, notes with regret that
“the United States programme, whatever its components, has proven ineffective to prevent the regular and continuing violation by its competent authorities of consular notification and assistance rights guaranteed by Article 36”.
146. In particular, Mexico claims in relation to the violation of the obligations under Article 36, paragraph 1, of the Vienna Convention:
“First, competent authorities of the United States regularly fail to provide the timely notification required by Article 36 (1) (h) and thereby to [sic] frustrate the communication and access contem¬plated by Article 36 (1) (a) and the assistance contemplated by Article 36 (1) (c). These violations continue notwithstanding the Court’s judgment in LaGrand and the programme described there.
Mexico has demonstrated, moreover, that the pattern of regular non-compliance continues. During the first half of 2003, Mexico has identified at least one hundred cases in which Mexican nationals have been arrested by competent authorities of the United States for serious felonies but not timely notified of their consular notification rights”
Furthermore, in relation to the violation of the obligations tinder Article 36, paragraph 2, of the Vienna Convention, Mexico claims:
“Second, courts in the United States continue to apply doctrines of procedural default and non-retroaetivity that prevent those courts from reaching the merits of Vienna Convention claims, and those courts that have addressed the merits of those claims (because no procedural bar applies) have repeatedly held that no remedy is avail¬able for a breach of the obligations of Article 36 . . . Likewise, the United States’ reliance on clemency proceedings to meet LaGrands requirement of review and reconsideration represents a deliberate decision to allow these legal rules and doctrines to continue to have their inevitable effect. Hence, the United States continues to breach Article 36 (2) by failing to give full effect to the purposes for which the rights accorded under Article 36 are intended.”
147. The United States contradicts this contention of Mexico by claim¬ing that “its efforts to improve the conveyance of information about con¬sular notification are continuing unabated and are achieving tangible results”. It contends that Mexico “fails to establish a ‘regular and con¬tinuing5 pattern of breaches of Article 36 in the wake of LaGrand
148. Mexico emphasizes the necessity of requiring the cessation of the wrongful acts because, it alleges, the violation of Article 36 with regard to Mexico and its 52 nationals still continues, The Court considers, how¬ever, that Mexico has not established a continuing violation of Article 36 of the Vienna Convention with respect to the 52 individuals referred to in its final submissions; it cannot therefore uphold Mexico’s claim seeking cessation. The Court would moreover point out that, inasmuch as these 52 individual cases are at various stages of criminal proceedings before the United States courts, they are in the state of pendente lite; and the Court has already indicated in respect of them what it regards as the appropriate remedy, namely review and reconsideration by reference to the breach of the Vienna Convention.
149. The Mexican request for guarantees of non-repetition is based on its contention that beyond these 52 cases there is a “regular and continu¬ing” pattern of breaches by the United States of Article 36. In this respect, the Court observes that there is no evidence properly before it that would establish a general pattern. While it is a matter of concern that, even in the wake of the LaGrand Judgment, there remain a substan¬tial number of cases of failure to carry out the obligation to furnish con¬sular information to Mexican nationals, the Court notes that the United States has been making considerable efforts to ensure that its law enforce¬ment authorities provide consular information to every arrested person they know or have reason to believe is a foreign national. Especially at the stage of pre-trial consular information, it is noteworthy that the United States has been making good faith efforts to implement the obli¬gations incumbent upon it under Article 36, paragraph 1, of the Vienna Convention, through such measures as a new outreach programme launched in 1998, including the dissemination to federal, state and local authorities of the State Department booklet mentioned above in para¬graph 63. The Court wishes to recall in this context what it has said in paragraph 64 about efforts in some jurisdictions to provide the informa¬tion under Article 36, paragraph 1 (b), in parallel with the reading of the “Miranda rights”.
150. The Court would further note in this regard that in the LaGrand case Germany sought, inter alia, “a straightforward assurance that the United States will not repeat its unlawful acts” (/.C.J. Reports 2001, p. 511, para* 120). With regard to this general demand for an assurance of non-repetition, the Court stated:
“If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve com¬pliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard. The programme in question certainly cannot provide an assurance that there will never again be a failure by the United States to observe the obligations of notification under Article 36 of the Vienna Conven¬tion. But no State could give such a guarantee and Germany does not seek it. The Court considers that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, para¬graph 1 (b), must be regarded as meeting Germany’s request for a general assurance of n on -repetition.” (I C.J. Reports 2001, pp. 512- 513, para- 124.)
The Court believes that as tar as the request of Mexico for guarantees and assurances of non-repetition is concerned, what the Court stated in this passage of the LaGrand Judgment remains applicable, and therefore meets that request.
15 L The Court would now re-emphasize a point of importance. In the present case, it has had occasion to examine the obligations of the United States under Article 36 of the Vienna Convention in relation to Mexican nationals sentenced to death in the United States. Its findings as to the duty of review and reconsideration of convictions and sentences have been directed to the circumstance of severe penalties being imposed on foreign nationals who happen to be of Mexican nationality. To avoid any ambiguity, it should be made clear that, while what the Court has stated concerns the Mexican nationals whose cases have been brought before it by Mexico, the Court has been addressing the issues of principle raised in the course of the present proceedings from the viewpoint of the general application of the Vienna Convention, and there can be no question of making an a contrario argument in respect of any of the Court’s findings in the present Judgment. In other words, 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.
* *
152. By its Order of 5 February 2003 the Court, acting on a request by Mexico, indicated by way of provisional measure that
“The 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 judgment in these proceedings” (I.C.J. Reports 2003, pp. 91-92, para. 59 (I)) (see paragraph 21 above).
The Order of 5 February 2003, according to its terms and to Article 41 of the Statute, was effective pending final judgment and the obligations of the United States in that respect are, with effect from the date of the present Judgment, replaced by those declared in this Judgment. The Court has rejected Mexico’s submission that, by way of restitutio in inte¬grum, the United States is obliged to annul the convictions and sentences of all of the Mexican nationals the subject of its claims (see above, para¬graphs 115-125). The Court has found that, in relation to these three per¬sons (among others), the United States has committed breaches of its obligations under Article 36, paragraph 1 (h), of the Vienna Convention and Article 36, paragraphs I (a) and (c), of that Convention ; moreover, in respect of those three persons alone, the United States has also committed breaches of Article 36, paragraph 2, of the said Convention, The review and reconsideration of conviction and sentence required by Article 36, paragraph 2, which is the appropriate remedy for breaches of Article 36, paragraph 1, has not been carried out. The Court considers that in these three cases it is for the United States to find an appropriate remedy having the nature of review and reconsideration according to the criteria indicated in paragraphs 138 et seq. of the present Judgment.
153. For these reasons, THE COURT,
(1) By thirteen votes to two.
Rejects the objection by the United Mexican States to the admissibility of the objections presented by the United States of America to the juris¬diction of the Court and the admissibility of the Mexican claims;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka;
AGAINST: Judge Parra-Aranguren; Judge ad hoc Sepulveda;
(2) Unanimously,
Rejects the four objections -by the United States of America to the jurisdiction of the Court;
(3) Unanimously,
Rejects the five objections by the United States of America to the admissibility of the claims of the United Mexican States;
(4) By fourteen votes to one,
Finds that, by not informing, without delay upon their detention, the 51 Mexican nationals referred to in paragraph 106 (1) above of their rights under Article 36, paragraph 1 (bof the Vienna Convention on Consular Relations of 24 April 1963, the United States of America breached the obligations incumbent upon it under that subparagraph;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vcreshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
AGAINST : Judge Parra-Aranguren;
(5) By fourteen votes to one,
Finds that, by not notifying the appropriate Mexican consular post without delay of the detention of the 49 Mexican nationals referred to in paragraph 106 (2) above and thereby depriving the United Mexican States of the right, in a timely fashion, to render the assistance provided for by the Vienna Convention to the individuals concerned, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 1 (b);
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
AGAINST: Judge Parra-Aranguren;
(6) By fourteen votes to one.
Finds that, in relation to the 49 Mexican nationals referred to in para¬graph 106 (3) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to communicate with and have access to those nationals and to visit them in detention, and thereby breached the obligations incumbent upon it under Article 36, para¬graph 1 (a) and (c)7 of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guiilaume, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buer gen thai, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
AGAINST; Judge Parra-Aranguren;
(7) By fourteen votes to one,
Finds that, in relation to the 34 Mexican nationals referred to in para¬graph 106 (4) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to arrange for legal rep¬resentation of those nationals, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (c), of the Convention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guiilaume, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buer gen thai, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
AGAINST: Judge Parra-Aranguren;
(8) By fourteen votes to one,
Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the conviction and sen¬tences of Mr, Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera, after the violations referred to in sub¬paragraph (4) above had been established in respect of those individuals, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 2, of the Convention ;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guiilaume, Koroma, Vcrcshchetm, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buer gen thai, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
AGAINST: Judge Parra-Aranguren;
(9) By fourteen votes to one,
Finds that the appropriate reparation in this case consists in the obliga¬tion of the United States of America to provide, by means of its own choos¬ing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guiilaume, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sepulveda;
AGAINST: Judge Parra-Aranguren ;
(10) Unanimously,
Takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention; and finds that this commitment must be regarded as meeting the request by the United Mexican States for guarantees and assurances of non-repetition ;
(11) Unanimously,
Finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America 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, taking account of paragraphs 138 to 141 of this Judgment;
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this thirty-first day of March, two thousand and four, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the United Mexican States and the Government of the United States of America, respectively.
(Signed) SHI Jiuyong, President.
(Signed) Philippe COUVREUR, Registrar.
President SHI and Vice-President RANJEVA append declarations to the Judgment of the Court; Judges VERESHCHETIN, PARRA-ARANGUREN and TOMKA and Judge ad hoc SEPULVEDA append separate opinions to the Judgment of the Court.
(initialled) J.Y.S. (Initialled) Ph.C
DECLARATION OF PRESIDENT SHI
In voting in favour of operative paragraph 153 of the Judgment, I should like to make it clear that I still maintain my views as expressed in my separate opinion annexed to the Lainami Judgment {I.C.J Reports 2001, pp. 518-524) with regard both to the Court’s interpretation that Article 36, paragraphs 1 and 2, of the Vienna Convention on Consular Relations creates individual rights, and to the Court’s ruling on “review and reconsideration of the conviction and sentence” as a form of remedy for breach by the receiving State of its obligations under Article 36 of the Convention.
(Signed) SHI Jiuyong.
DECLARATION OF VICE-PRESIDENT RANJEVA {Translation /
Rejection of distinction between burden of proof and burden of evidence — Factual analysis of the production of evidence — Non-application of the maxim nemo contra se edere tenetur — Article 62 of Rules of Court — Corfu Channel case and refusal to produce evidence — Justification of the factual analysis.
Diplomatic protection — Individual rights — Vienna Convention on Consular Relations — interrelationship of such rights — Article 36 and identification of holders of the rights there defined —- Interrelationship of rights under the Article 36 system: combination of sending State ‘.s right of initiative and non- refusal by its national
1. Whilst agreeing with the Court’s findings and reasoning, I wish to make my own proposed interpretation clear in regard to the issue of evi¬dence and the relationship between diplomatic protection and individual rights.
2. The Judgment declines to adopt the distinction proposed by the United States, between the burden of proof and the burden of evidence (para. 56), retaining solely the classic concept of burden of proof. Whilst that decision merits approval, the Judgment fails to give an appropriate explanation on this point. The distinction proposed by the Respondent is somewhat subtle and perhaps arises from specific concepts of United States law; the fact remains that those are institutions of domestic law, whereas the Court is bound to apply international law and its categories. It is sufficient to recall a basic truth, namely that the categories of domestic law have their inherent limitations; they are too directly dependent on the legal and institutional history of a given system to have universal value and to be directly valid in international law.
3, The reasoning of the Judgment in paragraph 57 is well fashioned, consisting simply in a factual review of the Parties’ propositions and con¬duct, and producing a conclusion which is thus self-evident. The demon¬stration would have been more convincing had the factual analysis been linked with the issue of the production of evidence in cases before the Court. The Court responds to the Respondent’s complaints of lack of co-operation on the part of the Applicant by indicating the conduct it expected of the latter.
4. On reflection, it is apparent that the United States objection raises a question of principle. Can a complaint be made that the other party has failed to produce evidence if the Court has not previously requested it to do so? Traditionally, in the context of procedural law, the basic principle was enshrined in the maxim nemo contra se edere tenetur (no one is bound to give evidence against himself). However, in terms of the Rules of Court, this principle does not appear to have been construed strictly. Article 62, paragraph 1, of the Rules confers on the Court full discretion¬ary powers in respect of evidence gathering. If the Court decides to grant a respondent’s request, it may order the other party to produce evidence. The following precedent provides support for this interpretation:
“the PCIJ responded favourably to an Agent who requested the Court to ask the other party to produce an administrative document in support of the interpretation of a certain conception of adminis¬trative law which be had expounded before the Court. The Court, after deliberation, decided to comply with this request.” (Genevieve Guyomar, Commeniaire du Reglement de la Cour Internationale de justice, 1983, p. 411, referring to P.C.I.J., Series E, No. 8, p. 268.)
5. It should be noted, however, that the Court cannot impose any sanction for failure to produce evidence, other than the inferences it may draw from such abstention or refusal. In the Corfu Channel case, the evi¬dence requested by the Court was refused by the party in question:
“It is not therefore possible to know the real content of these naval orders. The Court cannot, however, draw from this refusal to produce the orders any conclusions differing from those to which the actual events gave rise.” (Merits, Judgment, I.C.J. Reports 1949, p. 32.)
6. In the absence of any obligation capable of impugning the freedom of action of the parties in relation to the production of evidence, the Court’s only means of establishing the truth is its own power of determi¬nation. That limitation explains the purely factual nature of the analysis in paragraphs 56 and 57.
7. With respect to paragraph 40, I would like to give my interpreta¬tion. The problem arises out of Mexico’s wholesale espousal of Ger¬many’s argument in the LaGrand ( Germany v. United States of America) case, as set out in paragraph 75 of the 2001 Judgment; that strategy by Mexico is explicable: it was seeking to obtain the benefit of the LaGrand jurisprudence pertaining to the protection of the “individual rights” of its nationals. On closer examination, however, the two claims — German and Mexican — appear quite different in terms of their subject-matter. Germany joined together its claims in its own right and those concerning the protection of the individual rights of the LaGrand brothers. In the present case, the Mexican claim is a complex one: the Applicant first acts in its own name; secondly, it acts in the exercise of its right to ensure the protection of its nationals; and lastly — a point that should be empha¬sized — implementation of the individual rights of the Mexican nationals is situated in the context of the United States judicial system. Both Ger¬many and Mexico sailed their entire forensic strategy under the flag of diplomatic protection.
8. In terms of legal characterization, the reference to diplomatic pro¬tection is misconceived. Traditionally, diplomatic protection is essentially an institution of general or customary international law:
“It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplo¬matic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law.” {Mawommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12.)
9. In other words, the protection consists in the right of a State to bring an international claim against another State when one of its nationals has been injured by an internationally wrongful act. In light of the terms used by the Permanent Court of International Justice, there is one clear conclusion : diplomatic protection is a right belonging to the State. Hence, in matters concerning the protection of individual rights of nationals, the question is whether there is a place for diplo¬matic protection.
10. From a purely practical standpoint, reliance on the notion of dip¬lomatic protection and the rule of the exhaustion of local remedies may have perverse effects: the procedural default rule can make compliance with the procedural obligation to exhaust local remedies a futile exercise; no one has yet found a way of bringing an executed prisoner back to life.
11. On a theoretical level, reading the provisions of the Vienna Con¬vention in conjunction with the reasoning in the LaGrand Judgment prompts the following observations: first, the 1963 Convention enumer¬ates the rights that it seeks to protect for the purpose of facilitating the exercise of the consular function, for the benefit both of the sending State and of its nationals; secondly, the LaGrand Judgment describes the com¬ponents of the consular protection system as being interrelated (/. C, J. Reports 2001, p. 492, para, 74) ; and lastly, according to paragraph 77 of that Judgment :
“the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person” (LCJ. Reports 2001, p. 494, para. 77).
12. If I have understood them correctly, those propositions contem¬plate the direct grant of individual rights but do not impose any prior condition for States seeking to invoke violations of the rights of their nationals. Thus, looking beyond the scope of diplomatic protection and the obligation to exhaust local remedies, the question to be determined is the significance of the interrelationship between the components of the consular protection system.
13. The notion of interrelationship was used by the Court in 2001 to characterize the interdependence of the rights enumerated in Article 36, paragraph 1. The raison d’etre or focus of that relationship is to seek to facilitate consular protection. However, the manner in which the various rights are defined consists in stating their content and how they are to be apportioned as between the sending State and the detainee; in other words, the 1963 Convention sought to identify the holders of the rights that it created, with individual rights being those belonging to the detained nationals. In these circumstances, the interrelationship contemplated by the 2001 Judgment concerns neither the nature nor the scope of the righ ts in question; it pertains to the effective implementation of the protection system. The effective exercise by a State of its right to provide for the protection of its nationals, who derive their rights from Article 36, para¬graph 1 (b), is only possible if the detained national does not refuse such an initiative. The discretionary power of the sending State is thus con¬fined to a right of initiative to activate the protection mechanism. And that right of initiative effectively arises “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” (Judgment, para. 88).
(Signed) Raymond RANJEVA.
SEPARATE OPINION OF JUDGE VERESHCHETIN
Two heads of the Mexican claims — Treatment by the Court of the rule of exhaustion of local remedies — “Mixed” claims in the jurisprudence of the Court and in the ILC Draft Articles on Diplomatic Protection — Reasons for the application of “preponderance” standard and for non-application of the local remedies requirement in the special circumstances of the case.
I voted in favour of the Judgment. However, I should like to put on record my disagreement with that part of the Court’s reasoning where it deals with the issues concerning the law of diplomatic protection and the related rule of the exhaustion of local remedies (paragraph 40 of the Judgment).
1. In the present case, Mexico has requested the Court to adjudge and declare that the United States “violated its international legal obligation to Mexico in its own right and in the exercise of its right to diplomatic protection of its nationals” (emphasis added). The United States contends that Mexico’s claims are inadmissible because in all the individual cases referred to by Mexico local remedies remain available and therefore the right of diplomatic protection on behalf of any Mexican national cannot be exercised before this Court, In deciding this dispute, the Court, in order to show that the rule of exhaustion of local remedies cannot pre¬clude the admissibility of the Mexican claims, has resorted to reasoning which, in my view, amounts to a highly problematic new legal proposi¬tion in respect of the law of diplomatic protection.
2. The Court, without denying the obvious fact; that Mexico brought its claims under two heads, namely direct injury to the State and in the exercise of its right of diplomatic protection of its nationals, and having also noted that the individual rights of the Mexican nationals are rights “which are to be asserted, at any rate in the first place, within the domestic legal system of the United States”, thereafter makes an unexpected U-turn and states that, “in the special circumstances of inter-dependence of the rights of the State and of individual rights” under the Vienna Convention, Mexico may, prior to the exhaustion of local remedies,
“request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violations of the indi- viduaI rights, conferred on Mexican nationals under Article 36, paragraph 1 (b) [of the Vienna Convention]” (emphasis added).
The Court further specifically observes that in the present case the duty to exhaust local remedies does not apply and that the Court does not have to deal with the Mexican claim of violations “under a distinct head¬ing of diplomatic protection”.
3. In support of its argument regarding the “special circumstances of interdependence of the rights of the State and individual rights” under the Vienna Convention, the Court relies (a) on the finding in the LaGrand case that “Article 36, paragraph 1, creates individual rights [for the national concerned], which . . . may be invoked in this Court by the national State of the detained person” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77), and (b) on its statement that “violations of the rights of the individual under Article 36 may entail violations of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual”.
4. The Court, however, fails to recall that in the LaGrand case, in which Germany also brought its claims under the two heads, the Court does not say that in invoking individual rights of its nationals the State may avoid the rule of exhaustion of local remedies or, for that matter, that in case of such invocation the claims fall outside the scope of the law of diplomatic protection. As to the Court’s statement that violations of the rights of the individual may entail violations of the rights of the State and vice versa, this circular reasoning can be assessed in the light of the jurisprudence of the Court on diplomatic protection and of the work of the International Law Commission (ILC), which recently formulated Draft Articles on Diplomatic Protection. Unfortunately, neither of these is even mentioned in the Judgment.
5. To use the terminology of the ILC, Mexico has brought a so-called “mixed” claim alleging both direct injury to the State and indirect injury to the same State through the wrong done to its nationals. In its Com¬mentary to Article 9 [11] of the said Draft the ILC, basing itself on several judgments of this Court dealing with diplomatic protection cases and related issues of the exhaustion of local remedies {Interhandel, Pre¬liminary Objections, Judgment, I.C.J. Reports 1959; United States Diplo¬matic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980; Elettronica Sicula S.p.A. (ELSI), judgment, I.C.J. Reports 1989), stated;
“In the case of a mixed claim it is incumbent upon the tribunal to examine the different elements of the claim and to decide whether the direct or the indirect element is preponderant . . . If a claim is preponderantly based on injury to a national this is evidence of the fact that the claim would not have been brought but for the injury to the national . . . The principal factors to be considered in making this assessmen t are the subject of the dispute, the nature of the claim and the remedy claimed.” (United Nations, Report of the Interna-tional Law Commission, Fifty-fifth Session (5 May-6 June and 7 July- 8 August 2003), Official Records of the General Assembly, Fifty- eighth Session, Supplement No. 10 (A/58/10), pp. 90-91.)
Article 9 [11], to which the above-cited Commentary refers, reads as fol¬lows:
“Local remedies shall be exhausted where an international claim, or request for a declaratory judgment related to the claim, is brought preponderantly on the basis of an injury to a national or other person referred to in article 7 [8].” [Article 7 [8] deals with stateless persons and refugees.] (Ibid, p. 89.)
It should be noted that the cited Article of the ILC Draft does not make any exception for treaty-based claims.
6, As was just mentioned, the ILC was guided by the jurisprudence of the International Court of Justice. The ELSI Chamber rejected a United States argument that the exhaustion of local remedies did not apply as regards treaty-based claims where the treaty in question was silent as to whether such rule applied. While the Chamber recognized that the parties to a treaty can explicitly agree that the local remedies rule shall or shall not apply to claims based on that treaty, such “an important principle of ‘customary international law” would not be held to have been “tacitly dis¬pensed with, in the absence of any words making clear an intention to do so” (Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, . p. 42, para. 50). Thus, the Chamber stated that, as regards treaty-based claims, local remedies must be exhausted prior to the institution of an international claim unless there is explicit language to the contrary. In the same case, the Chamber refused to separate the claim for direct injury alleged by the United States from the diplomatic protection claim based on injury to the United States nationals. The Chamber thus determined that where the same factual basis exists for claims based both on direct injury to a State and indirect injury through a national of that State, local remedies must be exhausted when the claims are preponderantly based upon the injury to the national of the State.
7. In the case before the Court now, we are faced with a similar situa¬tion: the factual basis for both elements of Mexico’s claim is the same; the remedies sought focus on injuries to the nationals concerned. To use the “preponderance” standard, referred to above, the claim would not have been brought before the Court but for Mexico’s desire to protect specific nationals. This clearly shows that the mixed Mexican claim is preponderantly a diplomatic protection claim, in which Mexico espouses before the Court the claims of its nationals. Direct injury to Mexico could arise only after the violations of the rights of its nationals provided for in Article 36, paragraph 1 (b), of the Vienna Convention.
8. In effect, such a finding is corroborated by the Judgment’s overall reasoning. Thus, the Court invokes the violations of the rights of Mexi¬can nationals not merely as evidence of the violations of the rights of Mexico as a State. It scrupulously examines and identifies the concrete violations of the rights of Mexican nationals in each and every one of 50-pi us individual cases brought by Mexico under the head of diplomatic protection. The Court identifies by name the specific individuals and the specific injuries caused to them (see, for example, paragraph 106 of the Judgment).
9. And yet, at the very beginning of this exercise, the Court states that it is not dealing with the Mexican claims as a diplomatic protection case and that the rule of exhaustion of local remedies does not apply to. the Mexican request because of the special circumstances of interdependence of the rights of the State and of individual rights under the Vienna Con¬vention.
10. I share the view of the majority that Mexico’s claims are admis¬sible and that the duty to exhaust local remedies does not apply to this case. However, my perception of the nature of the “special circum¬stances” in issue is quite different from that expounded in paragraph 40 of the Judgment. In my view, the special circumstances that, for the pur¬poses of this Judgment, exempt this particular case from the local remedies requirement do not lie in the special character of Article 36 of the Vienna Convention, but rather in the particular factual circumstances of the specific case before the Court, as will be explained further below. Contrary to what the Court says in paragraph 40 of the Judgment, in invoking the rights of individuals under the Vienna Convention before this Court, the State, as a general rule, is not exempt from the duty to exhaust local remedies, subject to certain exceptions as those specified in Article 10 [14] of the ILC Draft. As the ELSI Chamber observed with regard to this rule, such “an important principle of customary interna¬tional law” would not be held to have been “tacitly dispensed with, in the absence of any words making clear an intention to do so” {Elettronica Sicula S.p.A, (ELS!), Judgment, I C.J. Reports 1989, p. 42, para. 50).
11. The individual rights of Mexican nationals under paragraph 1 (b) of Article 36 of the Vienna Convention are, indeed, rights “which are to be asserted, at any rate in the first place, within the domestic legal system of the United States” (para. 40 of the Judgment). In principle, only when that process is completed and the remedies for the violations are finally unavailable, could Mexico take up the case in the form of an espousal of individual claims before this Court. However, the LaGrand case showed that the wide range of possible local remedies in criminal justice pro¬cedures in the United States tend to be exhausted only a short time before the execution of individuals under sentence of death. In consequence, there is a risk that applications based on diplomatic protection with regard to such individuals will be filed with this Court in circumstances where the latter would be unable usefully to address them.
12. In the special circumstances of the present case, at the time when the Application was filed, all the Mexican nationals concerned were already on death row and therefore human lives were at stake. In these circumstances, to demand that all the local remedies for the alleged viola¬tion of Article 36, paragraph 1, should have been completely exhausted before Mexico could exercise its right of diplomatic protection of these nationals could lead to the absurd result of this Court having to rule at a point in time when its ruling could have no practical effect. That is why, exactly because most of the cases in question had not yet reached the final stage in the United States criminal proceedings, and in the hope that this Court would clarify the matter from the standpoint of international law, Mexico could bring its claims both in its own right and in the exer¬cise of its right of diplomatic protection of its nationals.
13. To conclude, the Court should have applied the “preponderance” standard to the “mixed” Mexican claims brought under the heads both of Mexico’s own rights and of its right of diplomatic protection of its nationals, thus remaining consistent with its former jurisprudence on the law of diplomatic protection. Having found that the claims were essen¬tially those of diplomatic protection, the Court should have held that the rule of exhaustion of local remedies was inapplicable not because Article 36 of the Vienna Convention on Consular Relations impliedly differs in kind from other treaty provisions creating rights of individuals, but rather because of the very special circumstances of the case at hand, as explained above.
(Signed) Vladlen S. VERESHCHETIN.
SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
The consent of the United States not to raise preliminary objections — Mexico did not discharge its burden of proving the Mexican nationality of the 52 persons indicated in its Memorial — Multiple nationality cases — The exhaustion of local remedies rule ■— Obligation to reply to all the questions ax stated hy Mexico in its final submissions — Final considerations.
1. My vote in favour of subparagraphs (2), (3), (10) arid (11) of para¬graph 153 does not mean that I share each and every part of the reason¬ing followed by the Court in reaching its conclusions. Time constraints to present this separate opinion within the period fixed by the Court do not permit me to make a complete explanation of my disagreement with the remaining subparagraphs of paragraph 153. However I wish to advance some of my main reasons for voting against them.
I
2. Operative paragraph 153 (1) of the Judgment:
“Rejects the objection by the United Mexican States to the admissibility of the objections presented by the United States of America to the jurisdiction of the Court and to the admissibility of the Mexican claims.”
3. In my opinion, the contention of the United Mexican States (here¬inafter “Mexico”) should have been upheld, because the Parties agreed to a single round of pleadings and nothing was said about preliminary objections. The United States of America (hereinafter “the United States”) thus gave its consent not to raise preliminary objections, and conse¬quently its objections were not to be examined as such. This reason explains my vote against paragraph 153, subparagraph (1), where the Court rejects Mexico’s contention that it should disregard the prelimi¬nary objections raised by the United States against Mexico’s claims based on violations by the United States of Article 36 of the 24 April 1963 Vienna Convention on Consular Relations (hereinafter “the Vienna Convention”).
4. However, it is to be kept in mind that in any case the Court has to be satisfied of its jurisdiction and therefore the Court may examine it at any time, before rendering judgment on the merits, either ex officio or at the request of any of the parties (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13; Application of the Con vention on the Prevention and Pun¬ishment of the Crime of Genocide, Preliminary Objections, Judgment, IC.J. Reports 1996 (II), p. 622, para. 46), Furthermore, as Mexico acknowledges, the inadmissibility objections presented by the United States as preliminary objections “overlap the arguments on the merits to a large extent” (CR 2003/24, p. 23, para. 59, Gomez-Robledo).
II
5. The first of Mexico’s final submissions requests the Court to adjudge and declare, inter alia, that the United States has “violated its interna¬tional legal obligations to Mexico, in its own right and in the exercise of its right of diplomatic protection of its nationals” by failing to comply with Article 36, paragraph 1, of the Vienna Convention (Judgment, para. 13; emphasis added). It also indicates that the Court need not “re¬examine and redetermine the facts and reweigh the evidence” in each of the 52 cases, because there are only two factual issues to be resolved. The first relates to the Mexican nationality of the individuals concerned and the second to the violations of Article 36, paragraph 1 (h) (CR 2003/24, p. 27, para. 83, Babcock),
6. Mexico expressly acknowledges that, since the United States “has chosen to vehemently deny any wrongdoing”, it is for Mexico to demon¬strate in all 52 cases the alleged violations of Article 36, paragraph 1 (b), of the Vienna Convention (CR2003/24, pp. 29-30, para. 94, Babcock); and it claims it has met this burden by providing to the Court the birth certificates of these individuals, and declarations from 42 of them stating their Mexican nationality.
7. Mexico maintained in the oral proceedings that all of them auto¬matically acquired jure soli Mexican nationality under Article 30 of its Constitution. However Mexico did not present any evidence to demon¬strate the contents of such Article 30.
8. It was for Mexico to discharge this burden of proof because, as Judge John E. Read recalled, “municipal laws are merely facts which express the will and constitute the activities of States” indicating that this rule had been established by the Permanent Court of International Justice in a long series of decisions and the following in particular:
“Polish Upper Silesia ■— Series A, No. 7, page 19.
Serbian Loans — Series A, Nos. 20/21, page 46.
Brazilian Loans — Series A, Nos. 20/21, page 124.
Lighthouses Case (France/Greece) — Series A/B, No. 62, page 22.
Pane vezys-SaIdutiskis Railway Case — Series A/B, No. 76, page 19.” (Nottebohm, Second Phase, Judgment, J.C.J. Reports 1955, p. 36, dissenting opinion of Judge Read.)
9. Moreover it is a generally accepted principle. Oppenheim’s Interna¬tional Law explains:
“From the standpoint of international law, a national law is gen¬erally regarded as a fact with reference to which rules of interna¬tional law have to be applied, rather than as a rule to be applied on the international plane as a rule of law; and insofar as the Interna¬tional Court of Justice is called upon to express an opinion as to the effect of a rule of national law it will do so by treating the matter as a question of fact to be established as such rather than as a question of law to be decided by the court.” (Oppenheim’s International Law, 9th ed., edited by Sir Robert Jennings, Q.C., and Sir Arthur Watts, K.C.M.G., Q.C., Vol. 1, “Peace”, Introduction and Part 1, 1996, p. 83, para. 21.)
10. This notwithstanding, paragraph 57 of the Judgment states:
“The Court finds that it is for Mexico to show that the 52 persons listed in paragraph 16 above held Mexican nationality at the time of their arrest. The Court notes that to this end Mexico has produced birth certificates and declarations of nationality, whose contents have not been challenged by the United States.”
11. It is difficult for me to agree with this conclusion because Mexico has not discharged its burden of proof. The declarations from 42 of all the persons concerned are ex pane documents, which cannot, by them¬selves, demonstrate Mexican nationality; and the birth certificates pre¬sented by Mexico for each of the 52 individuals undoubtedly demonstrate that they were born in Mexico, but do not prove their Mexican nation¬ality because Mexico did not provide the text of Article 30 of the Mexi¬can Constitution. In view of this omission it cannot be established, from the evidence presented by Mexico, that the 52 persons identified in its Memorial automatically acquired Mexican nationality at the time of their birth by virtue of the jus soli. For this reason, unless I were to rely on extralegal considerations, as the Judgment itself does, I had no alterna¬tive but to conclude that the claims presented by Mexico against the United States cannot be upheld since the Mexican nationality of the 52 persons concerned was not demonstrated and this is, in the present case, a necessary condition for the application of Article 36 of the Vienna Con¬vention and for Mexico’s exercise of its right to diplomatic protection of its nationals. Therefore, in my opinion, subparagraphs (4), (5), (6), (7), (8) and (9) of paragraph 153 were to be rejected.
III
12. Among the persons identified in Mexico’s Memorial, the United States provided proof that Enrique Zambrano was a United States national. Then Mexico amended its submissions on 28 November 2003 to withdraw the claim presented in its own name and in exercise of its right of diplomatic protection, explaining that it did not contest, for the pur¬pose of this litigation, that dual nationals have no right to be advised, under Article 36, paragraph I (b), of their rights to consular notification and access (CR 2003/24, p. 28, para. 87, Babcock). The withdrawal was not objected to by the United States, as indicated in paragraph 7 of the Judgment, and for this reason the case of Mr. Enrique Zambrano was not examined.
13. Even though the question was not disputed between the Parties, it is to be observed that the reasons given by Mexico for withdrawal in the case of Mr. Enrique Zambrano find no support in the conclusions reached by the International Law Commission in its recently prepared Draft Articles on Diplomatic Protection. Article 6 thereof prescribes that
“A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the time of the injury and at the date of the official presenta¬tion of the claim.”
14. The International Law Commission explains that the solution adopted in Article 6 follows the position adopted in arbitral decisions, in particular by the Italian-United States Conciliation Commission, the Iran-United States Claims Tribunal and the United Nations Compensa¬tion Commission established by the Security Council to provide for com¬pensation for damages caused by Iraq’s occupation of Kuwait. More¬over, the International Law Commission indicates that it is consistent with developments in international human rights law, which accords legal protection to individuals even against; a State of which they are nationals. It also specifies that the negative language used in the provision “is intended to show that the circumstances envisaged by article 6 are to be regarded as exceptional”, making it clear “that the burden of proof is on the claimant State to prove that its nationality is predominant” (United Nations, Report of the International Law Commission, Fifty-fourth Ses¬sion (29 April-7 June and 22 July-16 August 2002), Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 10 (A/57/ 10), pp. 169-187),
15. Therefore, Draft Article 6 would have entitled Mexico to exercise diplomatic protection on behalf of Enrique Zambrano, upon presenting evidence that he was a Mexican national and that his Mexican national¬ity predominated his United States nationality.
IV
16. Paragraph 40 of the Judgment examines the application of the rule of exhaustion of local remedies when dealing with the second preliminary objection to admissibility presented by the United States.
17. It indicates:
“The Court would first observe that the individual rights of Mexi¬can nationals under subparagraph 1 (b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States. Only when that process is completed and local remedies are exhausted would Mexico be entitled to espouse the individual claims of its nationals through the procedure of diplomatic protection.”
18. Paragraph 40 adds:
“In the present case Mexico does not, however, claim to be acting solely on that basis. It also asserts its own claims, basing them on the injury which it contends that it has itself suffered, directly and through its nationals, as a result of the violation by the United States of the obligations incumbent upon it under Article 36, para¬graph 1 (a), (b) and (c).”
19. Then paragraph 40 recalls the LaGrand Judgment, where it was recognized that Article 36, paragraph 1 (b), of the Vienna Convention creates individual rights of the foreign national concerned which may be invoked in this Court by the national State of the detained person (/. C.J. Reports 2001, p. 494, para. 77). Paragraph 40 further observes
“that violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that viola¬tions of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in sub¬mitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1 (b).”
20. Paragraph 40 of the Judgment concludes:
“The duty to exhaust local remedies does not apply to such a request. Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection. Without needing to pronounce at this juncture on the issues raised by the procedural default rule, as explained by Mexico in paragraph 39 above, the Court accordingly finds that the second objection by the United States to admissibility cannot be upheld.”
2 t, In my opinion, this conclusion is misleading. Paragraph 40 should have stated that the local remedies requirement does not apply when the injury is claimed to have been done directly to the rights of Mexico and not that it is not applicable to the claim made by Mexico in its own name. Now, the claims presented by Mexico in the exercise of diplomatic pro¬tection of its nationals are claims of Mexico in its own right, as was acknowledged in the well-known dictum of the 30 August 1924 Judgment of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case, where it was specified that
“By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law.” (Judgment No. 2, 1924, P. CI. J, Series A, No. 2, p. 12.)
22. This principle is generally accepted and has recently been repro¬duced in Article 1, paragraph 1, of the Draft Articles on Diplomatic Pro¬tection prepared by the International Law Commission, indicating that:
“Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a State adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another State.”
23. Therefore, in the present case, the relevant element in deciding whether local remedies had to be exhausted is whether Mexico was directly injured by the actions of the United States. As the International Law Commission explains
“The exhaustion of local remedies rule applies only to cases in which the claimant State has been injured ‘indirectly’, that is, through its national. It does not apply where the claimant State is directly injured by the wrongful act of another State, as here the
State has a distinct reason of its own for bringing an international claim.”
24, Consequently Article 9 of its Draft Articles on Diplomatic Protec¬tion provides that
“[l]ocal remedies shall be exhausted where an international claim, or request for a declaratory judgment related to the claim, is brought preponderantly on the basis of an injury to a national or other per¬son referred to in article 7 [8]”.
25, However the International Law Commission also observes that
“In practice it is difficult to decide whether the claim is ‘direct’ or ‘indirect’ where it is ‘mixed’, in the sense that it contains elements of both injury to the State and injury to the nationals of the State . . . In the case of a mixed claim it is incumbent upon the tribunal to examine the different elements of the claim and to decide whether the direct or the indirect element is preponderant. , . Closely related to the preponderance test is the sine qua non or ‘but for’ test, which asks whether the claim comprising elements of both direct and indirect injury would have been brought were it not for the claim on behalf of the injured national. If this question is answered nega¬tively, the claim is an indirect one and local remedies must be exhausted. There is, however, little to distinguish the preponderance test from the ‘but for’ test. If a claim is preponderantly based on injury to a national this is evidence of the fact that the claim would not have been brought but for the injury to the national. In these circumstances the Commission preferred to adopt one test only — that of preponderance.” (United Nations, Report of the Interna¬tional Law Commission, Fifty-fifth Session (5 May-6 June and 7 July- 8 August 2003), Official Records of the General Assembly, Fifty- eighth Session, Supplement No. 10 (A/58/10), pp. 89-90).
26. In the present case Mexico has advanced, in its own right, a claim against the United States. However, the application of the exhaustion of local remedies rule depends not on whether Mexico presents the claim in its own right, but on whether Mexico was directly injured by the alleged actions of the United States.
27. Mexico maintains that there was a breach by the United States of the Vienna Convention, an unlawful act in the relations between the two States, on each occasion the United States authorities did not inform the Mexican nationals arrested of their rights under Article 36, para¬graph 1 (b). Consequently, Mexico’s claim is a “mixed” claim, to use the terminology of the International Law Commission, as recognized in paragraph 40 of the judgment where it is stated that there are “special circumstances of interdependence of the rights of the State and of individual rights”. Therefore, it was for the Court to determine whether Mexico’s claim was preponderantly based on injury to a national and would not have been brought but for the injury to its national.
28. In my opinion, Mexico would not have presented its claim against the United States but for the injury suffered by its nationals. Conse¬quently the local remedies rule applies to the claims “in its own right” submitted by Mexico in its first final submission and therefore the Court should have examined each of the individual cases to determine whether the local remedies had been exhausted, which do not include “approach to the executive for relief in the exercise of its discretionary powers . . . remedies as of grace or those whose ‘purpose is to obtain a favour and not to vindicate a right'”. If that was not case, the claims presented by Mexico in the exercise of diplomatic protection of its nationals were to be dismissed, unless covered by any of the customarily accepted exceptions to the local remedies rule, taking into consideration Article 10 of the Draft Articles on Diplomatic Protection prepared by the International Law Commission (United Nations, Report of the International Law Commission, Fifty-fifth Session (5 May-6 June and 7 July-8 August 2003), Official Records of the General Assembly, Fifty-eighth Session, Supple¬ment No. 10 (A/58/10), pp. 88, 92-102). Therefore, it is not possible for me to agree with the conclusion reached in paragraph 40 of the Judgment.
V
29. On 14 February 2002, the Court stated:
“The Court would recall the well-established principle that ‘it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions’ (Asylum, Judgment, I. C.J. Reports 1950, p. 402). While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning.” (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, F.C.J. Reports 2002, pp. 18-19, para. 43.)
30. In my opinion this statement supports the following observations on the Judgment in the present case.
31. In its first final submission Mexico requests the Court to adjudge and declare:
“That the United States of America, in arresting, detaining, try¬ing, convicting, and sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 natio¬nals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention.” (judgment, para. 14 (1).)
32. Subparagraphs (4), (5), (6), (7) and (8) of paragraph 153, in a rather sophisticated way, adjudge and declare that “the United States breached the obligations incumbent upon it” under Article 36, para¬graph 1 (b) (subparas. (4) and (5)); that “the United States breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c) of the Convention” (subpara. (6)); that “the United States . . . breached the obligations incumbent upon it under Article 36, paragraph 1 (c) of the Convention” (subpara. (7)); and that “the United States breached the obl igations incumbent upon it under Article 36, paragraph 2, of the Con¬vention” (subpara. (8)). However, that is not an answer to the first final submission presented by Mexico, where Mexico asks the Court to adjudge and declare that the United States violated “its international legal obli¬gations to Mexico, in its own right and in the exercise of its right to diplomatic protection”. Therefore, in my opinion, the operative part of the Judgment should have responded to the request made by Mexico in its first final submission.
In its second final submission Mexico requests the Court to adjudge and declare:
“That the obligation in Article 36 (1) of the Vienna Convention requires notification of consular rights and a reasonable opportunity for consular access before the competent authorities of the receiv¬ing State take any action potentially detrimental to the foreign national’s rights.” (Judgment, para. 14 (2).)
In my opinion, the second final submission of Mexico should have been expressly decided in the operative part of the Judgment and not only considered in its reasoning.
VI
35. Finally it seems appropriate to me to mention that Mexico has insistently requested restitutio in integrum as a remedy for the alleged violations of Article 36 of the Vienna Convention by the United States, because it considers that depriving a foreign national facing criminal pro¬ceedings of the right to consular notification and assistance renders those proceedings fundamentally unfair (Judgment, para. 30). Mexico has also reminded the Court throughout the present proceedings of the facts of the LaGrand case. However, it did not mention that in the LaGrand case the question of fair trial was not originally raised by the highest State organs of Germany with their United States counterparts, as is evidenced by the following documents:
(a) The German Minister of Justice wrote to the United States Attorney General on 27 January 1999 acknowledging that
“nor are there any doubts about the fact that the proceedings were conducted under the Rule of Law — ultimately leading to imposition of the death penalties with final and binding effect — before the courts of the State of Arizona and before the Federal Courts” (Memorial of Germany, Vol. II, Ann. 20, pp. 539-542).
(b) In his letter of 5 February 1999 to the former President of the United States, the German President, acting as Head of State, indi¬cates that “[ijn no way do I doubt the legitimacy of the conviction nor the fairness of the procedure before the courts of the State of Arizona and the federal courts” (Memorial of Germany, Vol. II, Ann. 14, pp. 509-512).
(Signed) Go nzal o PAR RA – AR ANG u R e N .
SEPARATE OPINION OF JUDGE TOMKA [Translation ]
Diplomatic, protection — Distinction between rights of the State and indi-vidual righ ts — Invocation of individual rights before an international court by State of nationality — Objection based on non-exhaustion of local remedies.
Interpretation of the obligation to provide information under Article 36, para-graph I (b).
Obligation of cessation — Whether wrongful act is of a. continuing nature — Pendency of individual cases before domestic courts and form of reparation not pertinent to obligation of cessation.
1. Having voted in favour of the operative part of this Judgment, I nonetheless wish to clarify my position on certain points of law mentioned in the Court’s reasoning.
I, DIPLOMATIC PROTECTION
2. In bringing this case before the Court, Mexico seeks to assert its own rights, which it claims to have been violated by the United States, as well as its right to diplomatic protection of its 52 nationals, whose indi¬vidual rights are also alleged to have been violated by the United States.
3. The United States raised two objections to the admissibility of the Mexican claims based on the exercise of diplomatic protection. The first objection, that which concerns us here, was that the Mexican claim should be held inadmissible by the Court on the ground that local remedies had not been exhausted and were still available in the 52 cases.
4. It would appear from paragraph 40 of the Judgment that the Court accepts the United States objection to the admissibility of Mexico’s claim based on the exercise of its right of diplomatic protection. In that para¬graph, the Court observes that
“the individual rights of Mexican nationals under paragraph ] (b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States”.
The Court concludes:
“Only when that process is completed and local remedies are exhausted would Mexico be entitled to espouse the individual
claims of its nationals through the procedure of diplomatic protec¬tion.”
In other words, Mexico’s claim based on diplomatic protection could be regarded as inadmissible and the United States objection based on the failure to exhaust local remedies might appear to have succeeded. The Court nonetheless rejects the objection on a different ground.
5. The Court rejects the objection because such an objection does not apply to the claim submitted by Mexico in its own name (although I doubt whether the United States objection was directed at Mexico’s claim in its own name).
6. In order to be able to rule on the alleged violations by the United States of its obligations to Mexican nationals under Article 36, para¬graph 1, of the Vienna Convention, the Court relies on what is in my view a novel doctrine, without citing any prior jurisprudence in support thereof. The Court explains that, in the special circumstances of inter¬dependence of the rights of the State and of individual rights, the State (in this case Mexico) may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on its nationals under Article 36, paragraph 1 (b).
7. In the present ease, in my view, the Court could only reach the con¬clusion that the individual rights of Mexican nationals had been violated if it accepted Mexico’s claim that that State was exercising its right to diplomatic protection. In order for a violation of individual rights (the rights of individual nationals), to be established, such rights have to be pleaded before an international court. When the State invokes the rights of its nationals, it acts in its own name on their behalf, on account of the wrong done to them: in other words, that State exercises diplomatic pro-tection. Mexico’s main reason for bringing the case before the Court was the alleged wrong done to its nationals. It is its nationals — and their fate — with which Mexico is primarily concerned. In order to give them a final chance within the United States judicial system, it was vital to establish violations by the United States of its obligations to Mexican nationals under the Vienna Convention, and the resultant injury to them. In my view, it is the violation of the rights of an individual and the wrong done to that individual, rather than the violation of a right of Mexico and the resultant injury to that State, that may have a certain role to play in the context of criminal proceedings in the United States.
8. If this case is viewed in the context of diplomatic protection, we cannot simply ignore the United States objection that the Mexican nationals have failed to exhaust local remedies.
9. Faced with this argument on the part of the United States, Mexico maintains that the majority of the Mexican nationals concerned did file appeals in the United States, unsuccessfully. It adds that, in any event, the doctrine of procedural default prevented most of them from asserting their claims, since the matters on which they relied had not been sub¬mitted at an earlier stage of the proceedings — precisely because the American authorities had failed to inform those concerned of their rights, as they had an obligation to do under Article 36, paragraph t.
As for their other nationals, Mexico claims that the United States pre¬sented the obligation to exhaust local remedies incorrectly by implying that it is an absolute rule. Mexico relies on the separate opinion of Judge Tanaka in the Barcelona Traction case, according to which: “The rule does not seem to require from those concerned a clearly futile and point¬less activity, or a repetition of what has been done in vain.” (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C. J. Reports 1970, p. 145.) According to Mexico, a foreign national seeking a judicial remedy on the ground of a breach of Article 36 would never succeed in the United States, since the United States courts hold either that Article 36 does not create an individual right, or that a foreign national who has been denied his Article 36 rights but given his consti¬tutional and statutory rights, cannot establish prejudice and therefore cannot get relief. Mexico further contends that the rule of exhaustion of local remedies is restricted to judicial remedies, and that the admissibility of an application to the Court is not subject to the precondition of exhausting clemency procedures.
10. The International Law Commission, which is currently preparing draft articles on diplomatic protection, has framed four exceptions to the local remedies rule. Only the first of these concerns us here. Under this exception, there is no need to exhaust local remedies when they provide no reasonable possibility of effective redress. It is for the claimant to prove
“that in the circumstances of the case, and having regard to the legal system of the respondent State, there is no reasonable possibility of an effective redress” (Report of the International Law Commission, 2003, United Nations doc. A/58/10, p. 93, para. 3).
11. Mexico claims that no single court in the United States has ever granted a judicial remedy for a violation of Article 36 of the Vienna Con¬vention.
12. Although the United States maintains that almost all of the 52 cases put in issue by Mexico before the Court (save for three, leaving 49) remain pending, many of them not yet having gone beyond the first direct appeal of the conviction, it has on the other hand failed to refute Mexico’s criticism of the practice of the United States courts of con¬sistently refusing any form of relief for the violation of an obligation under Article 36 of the Vienna Convention.
13. It would thus have been possible for the Court to conclude that Mexico has shown that the condition of exhaustion of local remedies did not apply in the present case to its claim under the head of diplomatic protection.
II. INTERPRETATION Ratione Temporis OF THE OBLIGATION TO INFORM UNDER ARTICLE 36, PARAGRAPH 1 (b)
14. I have misgivings as to the interpretation by the Court of Article 36, paragraph 1 (b). According to that interpretation, which is set out in paragraph 63 of the Judgment, the obligation under this sub¬paragraph to provide information to the individual arises only once it is realized by the arresting authorities that the person is a foreign national, or once there are grounds to think that person is probably a foreign national.
I consider that this interpretation is not well founded. Were such an approach to the interpretation of the norms of international law to be applied more widely, there is a danger that it might weaken the protec¬tion accorded to certain subjects (for example, children) under the pro¬cedures for safeguarding human rights or under international humanitar¬ian law.
15. The obligation laid on the receiving State by Article 36 of the Vienna Convention does not depend on the authorities of the said State knowing that the person arrested is a foreigner. The obligation to provide information arises as soonasa foreigner is detained. Such an arrest con¬stitutes an objective fact sufficient in itself to activate the receiving State’s obligation.
16. Knowledge of the facts plays no role, either in respect of the existence or applicability of the obligation to provide information under Article 36, paragraph 1 (b)> or in respect of the violation of that obliga¬tion. Ignorance is not a circumstance precluding wrongfulness. Ignorantia non excusat. The State authorities must show due diligence in the exercise of their powers, and there is nothing to prevent them from making enquiry, as soon as the arrest is made, in regard to the nationality of the person detained. If that person claims to be a national of the country in which he has been arrested, he can no longer rely on the fact that he was not informed of his rights under Article 36, paragraph 1, of the Vienna Convention. Informing a person in custody that the Vienna Convention accords him certain rights if he is a national of another State is undoubtedly the best way of avoiding any breach of the obligations incumbent upon the authorities of the receiving State under Article 36 of the Convention. But those authorities cannot justify their omissions by relying on their own mistakes or errors of judgment.
III. CESSATION
17. The Court states that it cannot uphold Mexico’s claim requiring the United States to cease its violations of Article 36 of the Vienna Con¬vention with regard to Mexico and its 52 nationals, since Mexico has not established that the violations by the United States of its obligations under Article 36 are continuing (Judgment, para. 148).
18. I share the Court’s conclusion here. Yet the Court adds a further element, observing:
“inasmuch as these 52 individual cases are at various stages of crimi¬nal proceedings before the United States courts, they are in the state of pendente lite; and the Court has already indicated in respect of them what it regards as the appropriate remedy, namely review and reconsideration by reference to the breach of the Vienna Conven¬tion”.
19. I consider that the fact that individual cases are still pending before the United States courts is not pertinent to the obligation of cessa¬tion. It is the continuing nature or otherwise of the violation which deter¬mines whether the obligation of cessation exists. The Court can only order the cessation of a wrongful act if that act continues.
20. The reference to the fact that the cases are still pending before domestic courts might cause confusion by giving the impression that Mexico’s claim requiring cessation cannot be upheld by the Court because the failure to exhaust local remedies in the United States either makes the claim premature, and hence inadmissible, or else precludes the Court from finding that the obligation concerned has already been violated. Yet this second hypothesis must clearly be rejected, since the Court, in the same paragraph 148, confirms that what constitutes the appropriate remedy is review and reconsideration by reference to the breach of the Vienna Convention (a breach which first has to be established).
21. By the same token, the nature of the appropriate remedy (or form of reparation) is not pertinent to the obligation of cessation.
(Signed) Peter TOMKA.
SEPARATE OPINION OF JUDGE AD HOC SEPULVEDA
Third case before (he Court claiming breaches in the application and inter-pretation of Vienna Convention on Consular Relations — Basic agreement with the findings of the Court, but reservations about certain conclusions — Untimely objections on jurisdiction and admissibility — Restricted interpretation of the responsibility of States
The right to diplomatic protection of nationals — The nature of the obliga¬tions incumbent upon the United States and to whom are these obligations owed — The institution of diplomatic protection and the institution of consular assistance
The recognition of the existence of individual rights in the Vienna Conven¬tion — The local remedies rule, the doctrine of procedural default and the denial of justice — The “‘futility” principle — Clemency is not a judicial remedy and thus is not a remedy to be exhausted — Severe restrictions on review and reconsideration because of the procedural default rule — /^-LaGrand experience shows remote possibilities of meaningful and effective review and reconsideration
Unfounded interpretation of the right of consular officers to arrange legal representation — The Miranda warning, fundamental due process rights and Article 36
The nature of the reparation claimed — Meaning of review and reconsidera¬tion of convictions and sentences — Lack of effectiveness — Legal basis to declare the cessation of breaches of Article 36 — Previous cases decided by the Court — Insufficient development of the law of State responsibility
1. The present case constitutes a third attempt by the International Court of Justice to resolve issues related to the interpretation and appli¬cation of the Vienna Convention on Consular Relations, For a third time, the Court is requested to define the nature and scope of certain international obligations established in that treaty and the consequences produced by a breach of the Convention On this third opportunity, the Court is asked to adjudge whether the United States has “violated its international legal obligations to Mexico, in its own right and in the exer¬cise of its right to diplomatic protection” of 52 Mexican nationals on death row The Court is also required to determine whether Mexico has been deprived of the right it has to provide consular protection and whether the 52 Mexican nationals on death row were deprived of their nght to receive such consular protection An affirmative answer to these questions must mean that an international wrongful act of a State entails legal consequences, the most important one being that Mexico is entitled to reparation for those injuries Yet in the present Judgment, the Court provides only a partial satisfaction to Mexico’s claims, establishing in its findings a restricted and limited perspective on a number of matters, especially those related to the essence of the reparations owed
2. Even if I may be basically m agreement with most of the findings of the Court, I have misgivings and reservations about the reasoning employed by the Court to reach certain conclusions Such reasoning is reflected in various operative paragraphs of the Judgment Not being able to concur with all of its terms, I wish to point out the arguments that lead me to question aspects of the Judgment which I may regard as unsatisfactory
I
3 The Court should have rejected, as untimely, the United States objections regarding the jurisdiction of the Court and the admissibility of Mexico’s Application It is true that paragraph 1 of Article 79 of the Rules of Court characterizes as preliminary an objection “the decision upon which is requested before any further proceedings” The effect of the timely presentation of such an objection is that the proceedings on the merits are suspended (Art 79, para 5) There is a general understand¬ing that the United States did not submit a preliminary objection but then no other objection of any sort should have been recognized as suit¬able, if the text of Article 79, paragraph 1, of the Rules of Court is to be strictly interpreted and applied The text states that
“Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial ”
The United States presented its objections to jurisdiction and admissibil¬ity far beyond the time-limit prescnbed by the Rules of Court More than four months elapsed before the United States provided to the Court a number of objections Thus it is at least arguable that “An objection that is not presented as a preliminary objection m accordance with para¬graph 1 of Article 79 does not thereby become inadmissible”, and that a party “failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits”, as the Court has established (Judgment, para 24) The basic issue relates to the interpreta¬tion of the above-quoted first phrase of Article 79, paragraph 1 “Any objection ” Following a literal interpretation, any objection has to be submitted within a defined period of time, in accordance with the Rules of Court. The United States did not comply with such time-limit and its objections should have been rejected by the Court
4. On the other hand, I can certainly accept the observation made by the Court that “many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits” (Judgment, para 24) By examining very attentively each one of the objections to jurisdiction and admissibility advanced by the United States, the Court has provided a richer legal foundation to the basts of its com¬petence, defining and reaffirming the nature of its role as a tribunal with the powers to determine the scope of the international obligations that are a matter of a dispute between the parties
II
5 On two previous occasions the Court has rejected the notion that it is assuming the role of ultimate appellate tribunal in national criminal proceedings. To this effect the Court has found that
“the function of this Court is to resolve international legal disputes between States, inter aha when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal” (Vienna Convention on Consular Relations (Para¬guay v United States of America), Provisional Measures, Order of 9 April 1998, I CJ Reports 1998, p 257, para 38),
In the LaGrand Judgment, the Court again established the essence of the legal objectives it fulfils, according to its own Statute What is required from the Court is
“to do no more than apply the relevant rules of international law to the issues in dispute between the Parties to this case. The exercise of this function, expressly mandated by Article 38 of its Statute, does not convert this Court into a court of appeal of national crimi¬nal proceedings ” (.LaGrand, Judgment, IC J Reports 2001, p 486, para 52 )
6 The Court has also established that a dispute regarding the appro¬priate remedies for the violation of the Vienna Convention on Consular Relations “is a dispute that arises out of the interpretation or application of the Convention and this is within the Court’s jurisdiction” (ibid,, p 485, para 48)
7 Mexico’s final submissions seek to achieve the settlement of an international legal dispute arising out of the interpretation of the Vienna Convention on Consular Relations, with a specific reference to Article 36 Its basic argument is that the application of Article 36 by the United States is inconsistent with its international legal obligations towards Mexico It follows that if such a breach has been found by the Court, as it happens in the present case, the international law of State responsibility is to come into operation, providing the remedial action that is due as a consequence of an internationally wrongful act
8 Thus the jurisdiction of the Court in this case is beyond doubt and its functions are well defined Furthermore, there is no question that the Court is empowered to determine the legal consequences that arise from an international wrongful act Such consequences entail the obligation to make reparations. The Court can also impose a duty on the State that has committed the internationally wrongful act to perform the obligation it has breached The Court may order the cessation of a wrongful con¬duct But in the present Judgment, the Court has opted in favour of a restricted interpretation of the law of State responsibility, providing a limited reach to the claims for reparation sought by Mexico The effect of this decision is not only to assign insufficient relief to a breach of an international obligation, but also to miss the opportunity before the Court to substantially develop the international legal foundations of the responsibility of States, to contribute to the jurisprudence of the repara¬tions that are incumbent upon the State that is found to have committed an internationally wrongful act, and to define the nature and scope of the right to a reparation that an injured State is entitled to An unsatisfactory rule on the remedial action that is to be assumed by a State found in a breach of a treaty obligation or of a customary rule may mean a chain of proceedings before the Court in the forthcoming future, as a result of an inconclusive determination of how to remedy a violation of international duties by States
III
9 In its final submission, Mexico requests the Court to adjudge and declare that the United States “violated its international legal obligations to Mexico, m its own right and in the exercise of its right to diplomatic protection of its nationals” by failing to comply with the duties imposed to it by Article 36, paragraph 1 (a), (b) and (c)
10 In the operative part of the present Judgment, the Court has found that the United States is in breach of Article 36, paragraph 1 (a), (b) and (c) Basically, the Court has decided that:
“by not informing, without delay upon their detention, the 51 Mexi¬can nationals of their nghts under Article 36, paragraph 1 (b), of the Vienna Convention the United States of America breached the obligations incumbent upon it under that subparagraph” (Judg¬ment, para, 153 (4)),
“by not notifying the appropnate Mexican consular post without delay of the detention of the 49 Mexican nationals and thereby depriving the United Mexican States of the right, m a timely fashion, to render the assistance provided for by the Vienna Convention to the individuals concerned, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 1 (b)” (Judgment, para. 153 (5));
“in relation to the 49 Mexican nationals the United States of Amenca deprived the United Mexican States of the right, in a timely fashion, to communicate with and have access to those nationals and to visit them in detention, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Convention” {ibid , para 153 (6))
11 It is sufficiently clear that the United States of America is in viola¬tion of treaty obligations incumbent upon it What is not sufficiently clear in the present Judgment is the nature of the obligations incumbent upon the United States and, more importantly, to whom are these obli¬gations owed9 Obviously, the answer to this question has an intimate relationship with the claim made by Mexico that the United States has breached “its international legal obligations to Mexico in its own right and in the exercise of diplomatic protection of its nationals”.
IV
12 In the LaGrand Judgment it is possible to find an authoritative response to these legal matters, In that case, Germany contended that
“the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Conven¬tion but also entailed a violation of the individual rights of the LaGrand brothers” (LaGrand, Judgment, IC J Reports 2001, p 492, para 75)
Thus Germany invoked its right of diplomatic protection, seeking relief against the United States also on this specific ground
13 The Court provided in LaGrand a definition of the obligations incumbent upon the United States under Article 36 of the Vienna Con¬vention the recognition that this Article creates individual rights, that such rights may be invoked before the Court by the national State of the detained person, and that these rights were violated in the LaGrand case
14 According to the Court, in the terms established in LaGrand, the obligation incumbent upon the United States are as follows
“Article 36, paragraph 1 (b), spells out the obligations the receiving State has toward the detained person and the sending State It pro¬vides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the indivi¬dual’s detention ‘without delay5 It provides further that any commu- nication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State ‘without delay’ Significantly, this subparagraph ends with the following language ‘The said authorities shall inform the person concerned without delay of his rights under this subparagraph’ (emphasis added) Moreover, under Article 36, paragraph 1 (c)t the sending State’s right to provide consular assistance to the detained person may not be exercised ‘if he expressly opposes such action* The clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand ” (LaGrand, Judgment, ICJ Reports 2001 p. 494, para. 77,)
15 The clarity that the Court found, in the context of LaGrand, of the provisions of Article 36, is no longer found in the context of the present case It seems evident that, in the present case, the previously recognized clarity now admits many doubts and that, now, these provisions must not be applied as they stand
V
16 Clarity is needed to determine whether Mexico has a right to dip¬lomatic protection of its nationals and whether the individual rights already recognized by the Court as having been created may be invoked, in the present case, by the national State of the detained person The answer provided m the Judgment does not sufficiently cover the sub¬stance of Mexico’s claims. The Court observes that
“violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the indi¬vidual In these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in sub¬mitting a claim in its own name, request the Court to rule on the vio¬lation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1 (b) The duty to exhaust local remedies does not apply to such a request” (Judgment, para 40)
17 This statement contained in the present Judgment introduces an undesirable element of vagueness with respect to what had already been advanced in the LaGrand Judgment In this latter Judgment, issues related to diplomatic protection, consular assistance and the creation of individual rights by Article 36, paragraph 1, of the Vienna Convention
had been substantially defined Also matters concerning the problems that arise with the application of the procedural default rule and the question of the exhaustion of local remedies were properly and adequately settled by the Court in LaGrand In the present Judgment, all these issues are examined under a totally different light, one that is not in every aspect m full harmony and accordance with the LaGrand Judgment
18. In LaGrand the Court rejected as unfounded the claim made by the United States that “the Vienna Convention deals with consular assistance it does not deal with diplomatic protection” In its submis¬sions, the United States assumed wrongfully that
“Legally, a world of difference exists between the right of the con¬sul to assist an incarcerated national of his country, and the wholly different question whether the State can espouse the claims of its nationals through diplomatic protection The former is within the jurisdiction of the Court under the Optional Protocol, the latter is not.” (LaGrand[ Judgment, IC J Reports 2001, p 482, para 40 )
In its objections to the jurisdiction of the Court, the United States tried to introduce a distinction between jurisdiction over treaties and jurisdic¬tion over customary law, observing that “even if a treaty norm and a cus¬tomary norm were to have exactly the same content”, each would have its “separate applicability”
19 The Court provided an impeccable legal reasoning explaining why the arguments of the United States were untenable
“The Court cannot accept the United States objections The dis¬pute between the Parties as to whether Article 36, paragraph I (a) and (c), of the Vienna Convention have been violated in this case in consequence of the breach of paragraph 1 (b) does relate to the inter¬pretation and application of the Convention This is also true of the dispute as to whether paragraph 1 (b) creates individual nghts and whether Germany has standing to assert those rights on behalf of its nationals Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary inter¬national law This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its . nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty ” (LaGrand, Judgment, I C J Reports 2001, pp 482- 483, para 42, emphasis added)
20. In its final submissions, Mexico clearly distinguishes between the institution of diplomatic protection and the institution of consular assistance It asks the Court to adjudge and declare
“(1) that the United States of America violated its international legal obligations to Mexico, in its own right and in the exercise of its nght of diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Rela¬tions, and by depriving Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention ”
21 The reading of this submission makes obvious that there are two different kinds of breaches * one is related to obligations owed to Mexico in its own right and m the exercise of its right of diplomatic protection of its nationals, the second one has to do with Mexico’s depnval of its right to consular assistance and the corresponding right of its nationals to receive such assistance. It is to be understood that
“diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a State adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another State”,
according to the definition of the International Law Commission That is precisely the basis of Mexico’s claim
22 It is believed that the Court, in response to Mexico’s submission, should have recognized, as a matter of its nght to exercise diplomatic protection, the espousal by Mexico at the international level of the claims of the 52 Mexican nationals whose individual rights have been denied, amounting to the denial of justice through the judicial process of the United States Such a recognition would have been particularly relevant in the cases of Mr Fierro Reyna, Mr Moreno Ramos and Mr Torres Aguilera, three cases in which all judicial remedies have been exhausted. But the right of diplomatic protection of Mexico is also valid in the case of the other 49 Mexican nationals, since the application of the doctrine of procedural default by United States courts means, for all practical pur¬poses, that there are no remedies to exhaust, and that the futility rule becomes fully operative, as will be explained later on
23 Had the Court followed its previous jurisprudence and applied it in the present case, it would have been acting in line with the LaGrand
Judgment, where the Court rejected the argument made by the United States that “the right of a State to provide consular assistance to nation¬als detained in another country, and the nght of a State to espouse the laws of its nationals through diplomatic protection, are legally different concepts” (LaGrand, Judgment, IC J Reports 20011 p 493, para. 76), The Court also rejected in LaGrand the contention of the United States that “rights of consular notification and access under the Vienna Con¬vention are nghts of States, and not of individuals, even though these nghts may benefit individuals by permitting States to offer them consular assistance” (ibid.) One would have thought that these claims by the United States were put to rest, definitively and convincingly by the Court when it stated that
“the Court concludes that Article 36, paragraph 1, creates individual nghts, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person These nghts were violated in the present case ” (LaGrand, Judgment, ICJ Reports 2001, p 494, para 11.)
24 If individual nghts were violated in the LaGrand case, and if indi¬vidual rights are being violated in the present case, then it follows from these premises that there is only one legal, obvious and necessary conclu¬sion that the individual nghts of the 52 Mexican nationals may be invoked in this Court by Mexico. A contrary conclusion is incompatible with the decision of the Court m the LaGrand Judgment
VI
25 Furthermore, the present Judgment departs substantially from the findings in the LaGrand Judgment m a number of other aspects, related to the circumstances in which local remedies must be exhausted, to application of the procedural default rule and to the question of denial of justice
26 The rules that are to be applied in order to settle the issue of the exhaustion of local remedies have previously been decided by the Court They are linked to the doctrine of procedural default In LaGrand, the Court found that
“the procedural default rule prevented them from attaching any legal significance to the fact, inter aha, that the violation of the nghts set forth in Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining pnvate counsel for them and other¬wise assisting in their defence as provided for by the Convention Under these circumstances, the procedural default rule had the effect of preventing Tull effect [from being] given to the purposes for which the rights accorded under this Article are intended’, and thus vio¬lated paragraph 2 of Article 36 ” (LaGrand, Judgment, ICJ. Reports 2001t pp 497-498, para 91 )
27. It is generally accepted by the Court that the procedural default rule represents a bar to obtain a remedy in respect of the violation of the rights contained in the Vienna Convention Thus Mexico’s claims cannot be rejected on the basis of the non-exhaustion of local remedies, as “it was the United States itself which failed to carry out its obligations under the Convention”, as was rightly established by the Court in LaGrand,
28 Local remedies must be exhausted, but not if the exercise is “a clearly futile and pointless activity” (Barcelona Traction, Light and Power Company, LimitedIC J Reports 1961, p 145) The need for the prin¬ciple of the exhaustion of local remedies to have a degree of effectiveness was provided by the Court when it found that
“for an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success” (Elettronica Sicula S p A (ELSI), Judgment, I C J Reports 1989, p. 46, para 59 , emphasis added)
29 The United Nations International Law Commission (ILC) has been working on the topic of diplomatic protection for a number of years The Special Rapporteur, in his Third Report, submitted to the ILC a draft Article by which local remedies do not need to be exhausted if they provide no reasonable possibility of an effective redress. Thus the non-recourse to local remedies require a tribunal to
“examine circumstances pertaining to a particular claim which may not be immediately apparent, such as the independence of the judi¬ciary, the ability of local courts to conduct a fair trial, the presence of a line of precedents adverse to the claimant and the conduct of the respondent State, The reasonableness of pursuing local remedies must therefore be considered in each case ” (ILC, Third Report on Diplomatic Protection, A/CN 4/523,7 March 2002, para 45, empha¬sis added)
30 There is an evident need to examine the nature of the remedies that are to be exhausted For these purposes, the “futility rule” is to be applied There is a clear support to the notion that
“the local remedies which must be exhausted include remedies of a legal nature ‘but not extra-legal remedies or remedies as of grace5, or those whose ‘purpose is to obtain a favor and not to indicate a right’. Administrative or other remedies which are not judicial or quasi-judicial m character and are of a discretionary character there¬fore fall outside the application of the local remedies rule ” (ILC,
Third Report on Diplomatic Protection, A/CN 4/523, 7 March 2002, para 14)
Thus clemency is not a local remedy that must be exhausted, and, as the Court has found in the present Judgment, clemency is “not sufficient in itself to serve as an appropriate means of ‘review and reconsideration'” (para 143) The reason for this finding is that “the process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned” (Judgment, para. 141), Thus the Court regards clemency as a non-judicial procedure
31 The ILC Special Rapporteur on Diplomatic Protection establishes in his commentary, included m his Third Report, that there is no need to exhaust local remedies when such remedies are ineffective or the exercise of exhausting such remedies would be futile The reason for this is that a claimant is not required to exhaust justice in a foreign State “when there is no justice to exhaust” (ILC, Third Report on Diplomatic Protec¬tion, A/CN 4/523, 7 March 2002). As a result of the application of the procedural default rule by the United States courts to the Mexican nationals that are under Mexico’s diplomatic protection, it is not suitable to sustain that there is a need to exhaust local remedies when it has already been found that the doctrine of procedural default imposes a judicial bar to such remedial action, thus establishing a legal impediment to a municipal redress
VII
32 As interpreted by the Court in the LaGrand Judgment, Article 36,
paragraph 2, imposes a number of obligations on the parties’
(a) As a consequence of the determination made by the Court of the nature of the rights contained in Article 36, paragraph 1, “the reference to ‘rights’ in paragraph 2 must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual” (LaGrand, Judgment, IC J Reports 2001f p 497, para 89)
(b) The specific application of the “procedural default” rule becomes problematical when the rule does not “allow the detained individual to challenge a conviction and sentence” by claiming that a breach of the “without delay” consular notification has occurred, “thus pre¬venting the person from seeking and obtaining consular assistance from the sendmg State” (ibid,, p 497, para 90)
(c) At the request of the detained person, the sending State has the right to arrange for his legal representation
(d) The procedural default rule is an impediment for the United States courts to attach “any legal significance to the fact, inter aha, that the violation of the rights set forth in Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for [its nationals] and otherwise assisting in their defence as provided for by the Convention” (ICJ Reports 2001, pp 497-498, para 91)
(e) The procedural default rule had the effect, under these circum¬stances, of preventing ” ‘full effect [from being] given to the purposes for which the rights accorded under this article are intended’, and thus violated paragraph 2 of Article 36″ (ibid , p 498, para 91).
33. Yet, according to the evidence provided in the written and oral proceedings, the United States courts, even after LaGrand, still continue to apply the procedural default rule in the same manner as those courts did in the pro-LaGrand phase The reason submitted by the United States is that “procedural default rules will possibly preclude such claim on direct appeal or collateral review, unless the court finds there is cause for the default and prejudice as a result of these alleged breach” (Counter- Memorial of the United States of America (CMUS), para 6 65) How¬ever, no court in the United States has found that “there is cause for the default and prejudice” in cases of a Vienna Convention claim, under the argument that Article 36 rights are not constitutional nghts
34 In this context, it may be useful to recall what Justice Stevens, of the United States Supreme Court, had to say on the matter The Supreme Court declined to grant certiorari to hear a recent case, but m this separate opinion, Justice Stevens stated
“applying the procedural default rule to Article 36 claims is not only in direct violation of the Vienna Convention, but it is also manifestly unfair. The ICJ’s decision in LaGrand underscores that a foreign national who is presumptively ignorant of his right to notification should not be deemed to have waived the Article 36 protection simply because he failed to assert that right in a state criminal pro¬ceeding ” (CR 2003/24, para 244)
35 The actual and accepted practice of the United States courts on the interpretation and application of Article 36, paragraph 2, and of the LaGrand Judgment imposes severe restnctions on the concept of review and reconsideration, since it fails to provide a legal remedy that may be in agreement with the letter and the spint of the Vienna Convention and LaGrand The United States courts are condemned to repetition, since a legal straightjacket is imposed by the prevailing system, a system that does not regard a breach of Article 36 as a breach of a constitutional right.
36 The detained foreign person subject to a trial in the judicial system of the United States will find himself trapped in a cloistered legal situa¬tion He may be unaware of his rights to consular notification and com¬munication And then due to the failure of the competent authorities to comply with Article 36, he will be unable to raise the violation of his rights as an issue at trial Because of that, and since he did not claim his rights at the proper judicial time due to ignorance, federal and state courts will hold the doctrine of procedural default, which will bring about the defeat of remedies for the violation of rights established by Article 36 As a result of this chain of judicial events, there will be a legal impossibility to escape from this entrapment unless a way out is provided by a precise definition of the purposes that are to be achieved by a pro¬cess of review and reconsideration Such a definition must break the bar¬rier that imposes a recurrent and absurd circular legal argument, one that paralyses any meaningful remedial action that may be undertaken when there is a breach of Article 36
37. In the present Judgment the Court correctly states (para 112) that the problem to which attention was drawn in the LaGrand case, and which is also pertinent in the present case,
” ‘arises when the procedural default rule does not allow the detained individual to challenge a conviction and sentence by claiming, in reliance on Article 36, paragraph 1, of the Convention, that the com¬petent national authorities failed to comply with their obligation to provide the requisite consular information “without delay”, thus preventing the person from seeking and obtaining consular assis¬tance from the sending State,’ (/ C J Reports2001, p 497, para 90) ”
On this basis, the Court concluded in LaGrand that “the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitu¬tional grounds” (I C J Reports 2001, p, 497, para 91) But what is even more relevant is the finding of the Court in the present case “This state¬ment of the Court seems equally valid in relation to the present case, where a number of Mexican nationals have been placed exactly in such a situation ” (Judgment, para 112) Furthermore, there is one additional important conclusion-
“the Court simply notes that the procedural default rule has not been revised, nor has any provision been made to prevent its appli¬cation in cases where it has been the failure of the United States itself to inform that may have precluded counsel from being in a position to have raised the question of a violation of the Vienna Convention in the initial trial” (Judgment, para 113)
38 In examining the issue of the procedural default doctrine, the Court seems to agree, m the first instance, with the contention made by Mexico, the argument as expressed by Mexico being basically the follow¬ing
” ‘a defendant who could have raised, but fails to raise, a legal issue at trial will generally not be permitted to raise it in future proceed¬ings, on appeal or in a petition for a writ of habeas corpus’ [Memo¬rial of Mexico (MM), para. 224] The rule requires exhaustion of remedies, inter aha, at the state level and before a habeas corpus motion can be filed with federal courts. In the LaGrand case, the rule m question was applied by the United States federal courts; in the present case, Mexico also complains of the application of the rule in certain state courts of criminal appeal [MM, paras 228-229] ” (Judg-ment, para 111)
39 There seems to he an essential coincidence between Mexico’s argu¬ments and the reasoning contained in the present Judgment The Court establishes the following basic premises
(a) “the procedural default rule has not been revised, nor has any pro¬vision been made to prevent its application in cases where it has been the failure of the United States itself to inform that may have precluded counsel from being in a position to have raised the question of a violation of the Vienna Convention in the initial trial”,
(b) “[i]t thus remains the case that the procedural default rule may con¬tinue to prevent courts from attaching legal significance to the fact, inter aha, that the violation of the rights set forth m Article 36, paragraph 1, prevented Mexico, in a timely fashion, from retaining private counsel for certain nationals and otherwise assisting in their defence”,
(c) “[i]n such cases, application of the procedural default rule would have the effect of preventing ‘full effect [from being] given to the purposes for which the nghts accorded, under this Article are intended5, and thus violate paragraph 2 of Article 36”;
(d) “in several of the cases cited in Mexico’s final submissions the pro¬cedural default rule has already been applied, and that in others it could be applied at subsequent stages in the proceedings” (Judg¬ment, para 113)
40 Being in essence in agreement with these fundamental premises, the Court and Mexico then part company and reach different conclu¬sions Mexico contends that the United States has violated and continues to violate the Vienna Convention
“By applying provisions of its municipal law to defeat or foreclose remedies for the violation of nghts conferred by Article 36 — thus failing to provide meaningful review and reconsideration of severe sentences imposed in proceedings that violated Article 36.” (MM, p 93, para 226)
41 One first issue in Mexico’s argument is related to the continuity m the non-compliance and the non-applicability, in the courts of the United States, of the concept of “review and reconsideration” mandated in LaGrand But there is an additional element
“despite this Court’s clear analysis in LaGrand, U S courts at both the state and federal level, continue to invoke default doctnnes to bar any review of Article 36 violations — even when the national had been unaware of his rights to consular notification and commu¬nication and thus his ability to raise their violation as an issue at trial, due to the competent authorities’ failure to comply with Article 36” (MM, p 93, para 227),
42 More as an expression of hope than as a reflection of the mechanics that have been imposed in the United States courts by the application of the procedural default doctrine, the present Judgment finds that, with the exception of Mr, Fierro (case No 31), Mr Moreno (case No. 39) and Mr Torres (case No, 53), where conviction and sentence have become final, in none of the other 49 cases
“have the cnminal proceedings against the Mexican nationals con¬cerned already reached a stage at which there is no further possi¬bility of judicial re-examination of those cases, that is to say, all possibility is not yet excluded of ‘review and reconsideration’ of conviction and sentence, as called for in the LaGrand case It would therefore be premature for the Court to conclude at this stage that, m those cases, there is already a violation of the obliga¬tions under Article 36, paragraph 2, of the Vienna Convention ” (Judgment, para 113.)
43 The Court may be right in leaving open a possibility of a process of review and reconsideration and m finding that it is premature to con¬clude that there is already a breach of Article 36 But if the post -LaGrand experience is of any value, the potential to submit the rule of procedural default to a meaningful and effective system of review and reconsidera¬tion by the courts of the United States is rather remote Notwithstanding the clear mandate provided in the LaGrand Judgment, the aftermath of LaGrand provides evidence that there is little judicial wish in the United States courts to “allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth” in the Vienna Convention, as ordered by the Court in the LaGrand Judg¬ment
44 The fact is that, as has been already stated, no judicial review and reconsideration is left for Mr Fierro (case No. 31), Mr Moreno (case No 39), and Mr Torres (case No 53), since there are no further judicial remedies for these three Mexican nationals who, according to the Court, have been at risk of execution at least from the time the Court ordered provisional measures on 5 February 2003, obligating the United States to take all necessary steps to ensure that they were not executed before the Court rendered judgment on Mexico’s claims In addition to these three cases, ten Mexican nationals are unable to challenge their convictions and sentences on the basis of violations of Article 36, paragraph 1, because their ability to do so has been barred by the procedural default doctnne Furthermore, 18 Mexican nationals will find themselves in a similar situation, because they did not raise the Vienna Convention claims at trial Again, because of the procedural default rule, they will also be barred from challenging their convictions and sentences on this basis, once they attempt to raise the claim on appeal or m post-convic¬tion proceedings that are still ongoing (CR 2003/24, p 69, para 245)
45 It seems far beyond the realm of the possible that these 31 Mexican nationals can rely, once they have no further judicial redress, or once they are subject to the application of the procedural default doctrine, on a process of judicial review and reconsideration by the United States courts The room for legal manoeuvring is already too narrow to deposit any realistic hope in an effective and meaningful judicial remedy once the procedural default rule is put into operation One cannot but share the view provided by the Court in the present Judgment
“The crucial point in this situation is that, by the operation of the procedural default rule as it is applied at present, the defendant is effectively barred from raising the issue of the violation of his nghts under Article 36 of the Vienna Convention and is limited to seeking the vindication of his rights under the United States Constitution ” (Judgment, para 134)
Yet having reached such an unobjectionable conclusion, the Court does not follow its holding to its ultimate consequences, remaining much too shy as to the redress that should be provided. It is not unreasonable to assume that once the judicial process is completed and the remedies for the violations are finally unavailable, a denial of justice may come into being, unleashing a chain of legal consequences at the international level
VIII
46 According to Article 36, paragraph 1 (c), consular officers have the right to arrange for the legal representation of a national who is m pnson, custody or detention Such a right is particularly important m cases in which a severe penalty may be imposed In a peculiar interpreta¬tion of the nature of this right, in the present Judgment it is pointed out that
“the exercise of the rights of the sending State under Article 36, paragraph 1 (c), depends upon notification by the authorities of the receiving State It may be, however, that information drawn to the attention of the sending State by other means may still enable its consular officers to assist in arranging legal representation (Judgment, para 104)
And then the Judgment reaches a conclusion that may have no factual or legal support
“the Mexican consular authorities learned of their national’s deten¬tion in time to provide such assistance, either through notification by United States authorities (albeit belatedly in terms of Article 36, paragraph V (b)), or through other channels” (ibid , emphasis added)
m the case of the 16 Mexican nationals that are listed in the Judgment, providing their name and the number of their case
47 A review of these 16 cases should lead to a different conclusion In most if not all cases legal representation was badly needed from the very beginning, when such assistance is of the utmost necessity and benefit In certain of the quoted cases the legal representation was provided when the Mexican national had already been convicted There are certain cases of severe mental illness that required proper legal representation at an early stage of the trial, one that could have been provided by a consular officer ready to assist also in the impaired and disadvantaged condition of the mentally ill Mexican national There are cases of mental retarda¬tion, a circumstance that facilitated incriminating statements made with¬out a lawyer being present, which later negatively affected the Mexican national during his trial There are certain cases of confessions obtained through torture, an event that would certainly contradict the notion that notification was not so late as to effectively preclude arranging legal rep¬resentation There are certain cases of Mexican nationals that understood no English whatsoever, be it written or spoken, and yet had to sign self- mcnminating statements without the benefit of an interpreter or of a Spanish-speaking lawyer There are certain cases where Mexican con¬sular officials learned of the arrest of a Mexican national three years after his arrest, once he had been already sentenced to death
48 From a legal point of view, a matter of great concern must be the notion implicit in the Judgment that notification under Article 36, para¬graph 1 (b), albeit not made “without delay”, was not so late as to effec¬tively preclude legal representation (Judgment, para 104) In most if not all of the 16 cases quoted there was no consular notification made by the competent authorities, which has already been found to be a violation of Vienna Convention obligations In the operative part of the Judgment, the Court clearly establishes that the United States is in breach of the obligations imposed upon it by Article 36, paragraph 1 (a), (b) and (c) Three fundamental breaches are found by the Court (not informing with¬out delay of the rights of 51 Mexican nationals, not notifying the appro¬priate Mexican consular post without delay of the arrest of 48 Mexican nationals, depriving Mexico of the right to provide, in a timely fashion, assistance to the individuals concerned, depriving Mexico of the right, in a timely fashion, to communicate with and have access to its nationals and to visit them in detention) Yet it seems rather odd that the Court, in spite of these findings, establishes, with no further argument, that “Mexi-can consular authorities learned of their national’s detention m time to provide” legal assistance Furthermore, the “without delay” breach, already established by the Court, radically contradicts the idea that legal representation may be provided at a later period, belatedly, whatever the circumstances of the detention and whatever the stage of the trial may be, without infringing Article 36, paragraph 2. This exegesis of the Vienna Convention finds no foundation in the text of the treaty and defeats the traditional rules of hermeneutics But, in addition to the breach of Article 36, nothing in the Vienna Convention allows for such an interpre¬tation, one that subjectively declares whether or not legal representation in accordance with Article 36, paragraph 1 (c), is being provided at the right time Such an interpretation does not comply with the Vienna Con¬vention or with any of the previous holdings of the Court Yet its conse¬quences are most damaging It means excluding from the decision of the Court those 16 cases quoted in paragraph 104 of the present Judgment. If, as Mexico claims, it has been deprived specifically to arrange legal rep¬resentation, and consequently its nationals were deprived of the possi¬bility of receiving the corresponding assistance, under Article 36, para¬graph 1 (c)9 and the claim is to be applicable only to the 34 Mexican nationals listed in paragraph 106 (4) of the Judgment and mentioned in finding No 7 of its operative part, then the dramatic effect is that, with¬out any legal or factual basis, Mexico and 16 Mexican nationals are being deprived of their right to provide and receive legal representation in cnminal proceedings that have resulted in their being on death row Such a dramatic effect runs contrary to previous findings by the Court:
“It follows that when the sending State is unaware of the deten¬tion of its nationals due to the failure of the receiving State to pro¬vide the requisite consular notification without delay,. the sending State has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1 It is immaterial for the pur¬poses of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen.” (LaGrand, Judgment, I C J Reports 2001, p 492, para. 74 )
49 The purpose of Article 36 is to facilitate the exercise of consular functions related to nationals of the sending State It imposes a number of obligations on the receiving State and provides certain rights of consular protection on behalf of a national of the sending State that has been “arrested or committed to prison or to custody pending trial or is detained in any other manner” Whenever such an event may happen, the receiving State “shall, without delay, inform the consular post of the sending State”, Additionally, “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention to arrange for his legal representation” Surely the essential objective of this principle is to guarantee that the protected national who is in prison, custody or detention has the benefit of expert legal advice before any action is taken potentially detrimental to his rights As a con¬sequence of this principle, the notification should be given immediately and prior to interrogation, especially in the case of serious crimes, if the exercise of nght is to be useful
IX
50 The nght of the consular officer to arrange for the legal representa¬tion of the protected national is beyond question If the competent authorities of the receiving State are under the obligation to inform the protected national, without delay, of his rights of consular assistance, which include arranging for legal representation, in accordance with Article 36, then this principle can be regarded as closely related, m spirit and content, to the Miranda warning. The Advise of Rights established in the Miranda warning comprises seven elements Four of them are directly linked to legal representation
(a) you have the nght to talk to a lawyer for advice before we ask you any questions,
(b) you have the right to have a lawyer with you during your questioning,
(c) if you cannot afford a lawyer, one will be appointed for you before any questioning if you wish, and
(d) if you decide to answer questions now without a lawyer present, you have the right to stop answering at any time
51. To be useful, the consular right to arrange for the legal representa¬tion of the protected national should be exercised by the sending State as soon as possible There should be a corresponding obligation on the part of the receiving State not to undertake any action that may affect the nghts of the protected person To this effect, it may be useful to quote LaGrand
“the procedural default rule prevented them from attaching any legal significance to the fact, inter aha, that the violation of the rights set forth in Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining pnvate counsel for them and other¬wise assisting their defence as provided for by the Convention” (jLaGrand, Judgment, ICJ Reports 2001, pp 497-498, para. 91, emphasis added)
52 The essence of the controversy centres on the nature and scope of the rights provided by Article 36. If the United States courts deny that the Vienna Convention creates individual nghts no conciliation will be found with the LaGrand Judgment, which has already recognized the existence of such individual rights The issue to be decided is whether a breach of Article 36 will mean, under certain circumstances, a breach of a constitutional right, thus violating the pnnciple of due process of law and the individual rights of the foreign national subject to a trial.
53 The Miranda warning, an integral part of the United States system of constitutional rights, includes a number of pnnciples related to legal representation, regarded as fundamental due process nghts. One of the purposes of Article 36 is to identify and validate certain individual rights This pnnciple has been clearly established in the LaGrand Judgment To exercise an individual right there is a need to provide a mechanism for its implementation, since rights do not operate in a void. The importance of this mechanism is particularly relevant whenever there is a breach of the corresponding obligations, imposing a duty to redress the wrong done
54 The Miranda warning provides the foundation for due process of law of the detained person from the very moment of his arrest As may be understood by the findings in the LaGrand Judgment and m the present Judgment, under certain circumstances Article 36 establishes a number of basic elements to ensure a fair trail from the time a foreign national is subject to custody by competent authonties up to the end of his judicial process. There is an intimate link between the Miranda warning and Article 36 in the sense that both aim at creating a scheme of protection of rights that directly impinge on the fairness of a tnal This scheme of pro¬tection may and should become effective and operative from the very first stages, preserving the nghts of the detained person from an interrogation that may do him an unjustified harm at a later period of his judicial pro¬cess. Under these assumptions, the individual rights of a detained person will be better protected if the corresponding consular officer arranges for his legal representation, involving a defence counsel of quality and with experience in the legal procedures that affect foreign nationals in capital cases The scheme of protection will also be essential on other issues that are also an integral part of due process of law plea-bargaining, the gathering of evidence, submission of investigative evidence
55 Consular protection may be an important element for due process of law, especially in capital cases Depending on the circumstances of each case, individual nghts emanating from Article 36 can be equated with constitutional rights when the question to decide is closely related to the fair administration of justice If this premise is recognized and accepted, then the Fifth Amendment to the United States Constitution can be invoked This amendment specifically provides for procedural guarantees in cases of “a capital or otherwise infamous crime”, adding that no person shall “be depnved of life, liberty or property, without due process of law”
56 In LaGrand, the Court found that “it would be incumbent upon the United States to allow the review and reconsideration of the convic¬tion and sentence by taking account of the violation of the nghts set forth in the Convention” These nghts must be considered fundamental to due process A distinction has been made by the United States, arguing that those rights are procedural rights and not substantive rights But it may well be that a violation of a procedural right will profoundly affect due process of law There has to be a fine lme drawn between substantive nghts and procedural nghts in certain cases In the Miranda warning, is the right to talk to a lawyer for advice before any questions are asked a substantive or a procedural nght7 Whatever the preference may be the answer to this question, the fact is that the Miranda warning is embedded in the constitutional system of the United States and is part of its legal culture Fundamental procedural rights become an essential element in the protection of individual rights, transforming a legal instrument into a constitutional pnnciple Thus the nghts afforded by Article 36 of the Vienna Convention should be considered fundamental to due process
57 The Court found, m the LaGrand Judgment, that
“Article 36, paragraph 1 (b), spells out the obligations the receiving State has towards the detained person and the sending State
Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person “(ICJ Reports 2001, p 494, para 77)
The sending State is thus the depository of a nght to provide consular protection to its detained nationals, and foreign nationals have the nght to seek the assistance of its consular officers when detained By depriving Mexico and its nationals of the exercise of the rights provided in the Vienna Convention and established by the Court in LaGrand, the breach committed by the United States has resulted in fundamentally unfair criminal proceedings for the Mexican nationals
X
58 Mexico has requested that, “pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals, [it] is entitled to full reparation for these injuries in the form of restitutio in integrum” In the present Judgment, the Court seems, at first, to agree to the petition made by Mexico It quotes what it considers to be the general principle applicable to the legal consequences of an inter¬nationally wrongful act “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form ” (Factory at Chorzow, Jurisdiction, Judgment No 8, 1927, P CI J, Series A, No 9, p 21 ) Then the Court takes the argu¬ment further by quoting a classical elaboration of what reparation means:
“The essential pnnciple contained in the actual notion of an illegal act — a principle that seems to be established by international practice and in particular by the decisions of arbitral tribunals — is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed ” (Factory at Chorzow, Merits, Judgment No 13, 1928, PCI J, Series A, No 17, p 47)
59 If the Court had assumed the full consequences of this finding, made by its judicial predecessor, by establishing that, in the present case, the reparation for the violation should he in “re-establishing the situation which would, in all probability, have existed if that act had not been committed”, that would have meant answering affirmatively all the remedial actions requested by Mexico
60 But the Court has preferred to remain aloof from the principle of restoration and concentrate its attention in defining what it considers to be the task of the Court in the present case, which is “to determine what would be adequate reparation for the violation of Article 36” (Judgment, para 121) a concept that according to the Judgment “varies depending upon the concrete circumstances surrounding each case and the precise nature and scope of the injury” (Judgment, para. 119) The Judgment concludes that
“the internationally wrongful acts committed by the United States were the failure of its competent authorities to inform the Mexican nationals concerned, to notify Mexican consular posts and to enable Mexico to provide consular assistance. It follows that the remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals’ cases by the United States courts ” (Judgment, para. 121 )
This finding falls short of what Mexico had requested, since Mexico was sustaining its arguments on the basis of the “essential principle” conse¬crated in the Chozdw Factory case and previously recognized by this Court, which is to re-establish the situation which would, in all proba¬bility, have existed if that act had not been committed
XI
61 There is, in the present Judgment, a definition of the character and scope of review and reconsideration of convictions and sentences. The qualification is that is has to be carried out “taking account of the viola¬tion of the rights set forth in the Convention”, as established in the LaGrand Judgment, and “including, in particular, the question of the legal consequences of the violation upon the criminal proceedings that have followed the violation” (Judgment, para 131). Unfortunately, this qualification is not specifically included in the respective finding that is contained m the operative paragraphs of the Judgment
62 The scope of the obligation to allow “review and reconsidera¬tion of the conviction and sentence” has to be interpreted examining Article 36 as a whole. As the Court found in LaGrand, the first para¬graph of this Article “begins with the basic principle governing consular protection: the nght of communication and access” Next comes the modalities of consular notification Then there are the measures consular authonties may take m rendering consular assistance to a detained national If this interrelated system of consular protection is breached, there is a duty of the receiving State to undertake certain measures, which are, according to the LaGrand Judgment, the following
(a) Where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties, it would be incumbent upon (the receiving State) to allow the review and reconsideration of the conviction and sentence.
(b) The review and reconsideration process must take into account the violation of the nghts set forth in this Convention.
(c) The obligation to review and reconsider can be earned out in vari¬ous ways; the choice of means must be left to the receiving State
63 Article 36, paragraph 2, of the Vienna Convention and the LaGrand Judgment impose an essential condition4 the process of review and recon¬sideration must take into account the violations of the rights set forth in the Convention and the process must give full effect to the purposes for which the nghts accorded in Article 36 are intended In LaGrand the Court also found the United States in breach of its obligations by “not permitting the review and reconsideration, in the light of the nghts set forth in the Convention, of the convictions and sentences of the LaGrand brothers ” (LaGrand Judgmentt ICJ Reports 2001, p 515, para 128 (4))
64 Indeed the rights that are stipulated in Article 36, paragraph 1, are to be implemented m accordance with the laws and regulations of the receiving State But these laws and regulations “must enable full effect to be given to the purposes for which the rights accorded under this Article are intended” In the present Judgment, it is difficult to find any clanfy- mg statements as to how these obligations are to be implemented and what are the precise conditions that are to be applied in order to ensure that the process of review and reconsideration will be effective and mean-ingful. Such statements and conditions should be an integral part of the Judgment, particularly in its operative part, as an essential determination of the remedial measures that are being required by the Court
65 The United States has indicated that, if there has been a breach of Article 36,
“The whole point is simply to examine the conviction and sen¬tence m light of the breach to see whether, in the particular circum¬stances of the individual case, the Article 36 breach did have some consequences — some impact that impinged upon fundamental fair¬ness and to assess what action with respect to the conviction and sentence that may require ” (CR 2003/29, p 20, para. 3 6, Philbm )
It is also said by the United States that it is true that
“if a defendant fails to raise a claim under the Vienna Convention at the proper time, he will be barred by the procedural default rule from raising the claim on appeal. Here again, however, as long as the defendant has preserved his claim relating to the underlying injury, an injury to some substantive nght — such as a claim that he did not understand that he was waiving his right to counsel in an interrogation — that claim can be addressed. As a result, an exami¬nation of the impact of the Article 36 violation on the trial and its fundamental fairness — which is at the core of review and recon¬sideration called for by LaGrand— is fully available ” (CR 2003/29, p 25, para 3 23, Philbin )
66 Yet, according to the evidence provided in the written and oral proceedings, the United States courts, even after LaGrand, continue to apply the procedural default rule in the same manner as its courts did in the prz-LaGrand phase The reason submitted by the United States is that “procedural default rules will possibly preclude such claim on direct appeal or collateral review, unless the court finds there is cause for the default and prejudice as a result of these alleged breaches” (CMUS, p 111, para 6 65) However, no court in the United States has found that “there is cause for the default and prejudice” m cases of a Vienna Convention claim, under the argument that Article 36 nghts are not con¬stitutional rights The weakness and limitations of ordenng a process of review and reconsideration become evident when the results have proven to lack effectiveness
67. There is a need to define the nature of the obligations imposed by the concept “by means of its own choosing”. If the issue is not properly clanfied by the Court, the two Parties in the present case will not have a sufficiently solid legal guideline on the adequate measures to be under¬taken in order to find the reparation sought by Mexico and m order to comply with the remedy decided by the Court to relieve the United States of its responsibility The settlement of this issue is necessary in order to deal with the consequences that anse by virtue of an internationally wrongful act The responsible State has the duty to make full reparation for the injury caused by its wrongful act To dispel any potential mis¬understandings, there is a precedent that provides a guideline and that can be invoked m order to ensure a clear definition. The Permanent Court of International Justice found that there is a need to
“ensure recognition of a situation at law, once and for all and with binding force as between the Parties; so that the legal position thus established cannot again be called in question in so far as the legal effects ensuing therefrom are concerned” (Interpretation of Judg¬ments, Nos 7 and 8 (Factory at Chorzow), Judgment No 11, 1927, PCI J, Series A, No 13, p 20).
68. Full reparation seems unlikely to be achieved if the ambiguity of the notion of “by means of its own choosing” remains and is not strengthened with the addition of some specific measures. From the exist¬ing evidence in the prz-LaGrand and post-LaGrand periods, the United States has followed a pattern of compliance with the Vienna Convention and the Court’s Judgment that is far from satisfactory To claim that a clemency procedure is a sufficient instrument to carry out the obligations contained in the LaGrand Judgment is to ignore the need for an adequate reparation As the Permanent Court of International Justice found,
“the essential pnnciple is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed” (Factory at Chorzow, Merits, Judgment No 13, 1928, PCI J, Series A, No 17, p 47)
69 The remedial action to be provided must determine how the laws and regulations of the United States, introducing an element of effective¬ness that has to be mandatory and compulsive, will “enable full effect to be given to the purposes for which the rights accorded under [Article 36] are intended” The review and reconsideration of the conviction and sen¬tence has to take into account the breach of the nghts set forth in the Convention These rights should be considered as belonging to the category of fundamental rights that impinge on due process of law If full effect is to be given to the purposes of these nghts, and if the review and reconsideration has to take into account the nature of the violation of the rights, then the margin in the application of the principle of “by means of its own choosing” becomes far narrower The means must be effective and the choosing has to be very selective
70 Mexico’s request for a meaningful and effective review and recon¬sideration of convictions and sentences finds support in the Commentary to Article 35 contained in the International Law Commission’s Draft Articles on State Responsibility
“the term ‘jundical restitution’ is sometimes used where restitution requires or involves the modification of a legal situation either within the legal system of the responsible State or in its legal relations with the injured State Such cases include the revocation, annulment or amendment of a constitutional or legislative provision enacted in vio¬lation of a rule of international law, the rescinding or reconsideration of an administrative or judicial measure unlawfully adopted in respect of the person or property of a foreigner ” (A/56/10, p 240, para 5, emphasis added )
71 Under the assumption that the United States is in breach of an international obligation, that Mexico suffered an injury for which a remedy is sought, and that the United States cannot “rely on the provisions of its internal law as justification for failure to comply with its obliga¬tions”, there are sufficient legal grounds to assume that if the procedural default rule is perpetuated in the United States courts, then there is little future for a meaningful and effective mechanism of judicial review and reconsideration If this assumption remains valid, then it may be indis¬pensable for the Court to recover the concept of “juridical restitution” invoked by the International Law Commission, which becomes appli¬cable when there is a need to modify a legal situation within the legal system of the responsible State It is worth repeating jundical restitu¬tion may
“include the revocation, annulment or amendment of a constitu¬tional or legislative provision enacted in violation of a rule of inter¬national law, the rescinding or reconsideration of an administrative or judicial measure unlawfully adopted in respect of the person or property of a foreigner” (A/56/10, p 240, para 5).
It may happen that the judicial measure, if found in breach of an inter¬national obligation, has to be rescinded through legislative means
XII
72 In its final submission, Mexico requests the Court to adjudge that the United States “shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals” Yet the Court found that “Mexico has not established a continuing violation of Article 36 of the Vienna Convention with respect to the 52 individuals” (Judgment, para 148) But the continuing violation can be estab¬lished by examining the cases detailed in the Application of Mexico (paras 67-267) By consulting the specific cases, it becomes clear that there are two elements in the continuous breach of obligations by the United States
(a) from 1979 to 1999, that is to say during the 20 years considered in Mexico’s Application (in terms of the first arrest and the last arrest of the 52 Mexican nationals included in the Application), there was no compliance on the part of the competent authorities of the United States in the fufilment of their Article 36 obligations That has already been decided by the Court m the present case;
(b) m the post -LaGrand stage, United States courts continue to apply the doctrine of procedural default. As the Court has stated, “a claim based on the violation of Article 36, paragraph 1, of the Vienna Convention, however meritorious in itself, could be barred in the courts of the United States by the operation of the procedural default rule” (Judgment, para 133) The Court in LaGrand had the opportunity to define the scope of the procedural default doctrme:
“In itself, the rule does not violate Article 36 of the Vienna Convention The problem arises when the procedural default rule does not allow the detained individual to challenge a conviction and sentence by claiming that the competent national authori¬ties failed to comply with their obligation to provide the requisite consular information ‘without delay’, thus preventing the person from seeking and obtaining consular assistance from the sending State.” (LaGrand, Judgment, ICJ Reports 2001, p 497, para 90)
73 In the post -LaGrand phase, the process of review and reconsidera¬tion has not meant the inapplicability of the procedural default doctnne
If the Court has found that the United States is m breach of Article 36 of the Vienna Convention, as it already has, it follows that a cessation of such continuous violations is a proper measure in order to secure an end to a continuing wrongful conduct.
74 According to the arguments submitted during the proceedings, there are 102 Mexican nationals that have been detained and charged with serious felonies after the LaGrand Judgment was issued, without being notified of their nghts to consular notification and access In 46 of these 102 cases, the United States effectively does not dispute the viola¬tion Six out of the 46 cases face the potential imposition of the death penalty
75 The United States provides a number of countervailing arguments but no evidence to contradict the facts submitted by Mexico The argu¬ments point out that “the United States has demonstrated that its efforts to improve the conveyance of information about consular notification are continuing unabated and are achieving tangible results” It adds that
“Mexico would have the Court dictate to the United States that it cease applying — and also guarantee that it would in fact not apply — a wide variety of fully proper municipal legal doctnnes and decisions, the combined scope of which is staggenng” (CMUS, paras 8,36 and 8 38)
76 The United States considers that the 102 cases — or, for that mat¬ter, the six cases — submitted by Mexico are “isolated cases” But the issue is to determine whether there is a continuity in the failure to comply with Article 36 obligations by the United States. That seems to be the case The United States may undertake a commitment “to ensure imple¬mentation of the specific measures adopted in performance of its obliga¬tions under Article 36, paragraph 1, of the Convention” But the effec¬tiveness of this commitment is what is lacking Thus the need to establish the concrete guidelines that should be followed by the United States. These guidelines must comprise the obligation to cease an internationally wrongful act.
77 The International Law Commission (ILC), m its Draft Articles on State Responsibility, has introduced the cntena governing the extension in time of the breach of an international obligation. In its Commentary to Article 14, paragraph 2, it indicates
“a continuing wrongful act, on the other hand, occupies the entire period dunng which the act continues and remains not in conformity with the international obligation, provided that the State is bound by the international obligation during that period Examples of con¬tinuing wrongful acts include the maintenance in effect of legislative provisions incompatible with treaty obligations of the enacting State ” (A/56/10, p 139, para 3.)
78. The Court has found, in a number of cases, the need to order the cessation of an unlawful conduct Examples of these orders include the case of Military and Paramilitary Activities in and against Nicaragua, the case of United States Diplomatic and Consular Staff in Tehran, and the Arrest Warrant case
In the Tehran case the Court decided unanimously that Iran “must immediately terminate the unlawful detention of the United States Charge d’Affaires and other diplomatic and consular staff ” (United States Diplomatic and Consular Staff in Tehran, Judgment, IC J Reports 1980, para 95).
The Court decided, in the Nicaragua case, that “the United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligation” (Mili¬tary and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits; Judgment, I C J Reports 1986, p. 149, para 12)
In the Arrest Warrant case the Court found that: “the Kingdom of Belgium must, by means of its own choosing, cancel the arrest warrant. ” (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, IC J Reports 2002, p 33, para. 3)
79 The legal reasoning that compels the need for the cessation and non-repetition of a breach of an international obligation is the continued duty of performance To extend in time the performance of an illegal act would frustrate the very nature and foundations of the rule of law. As the ILC m Article 29 of its Draft Articles on State Responsibility indicates, “The legal consequences of an international wrongful act do not affect the continued duty of the responsible State to perform the obliga¬tion breached ” In the Commentary to this Article, the ILC states
“Even if the responsible State complies with its obligations under Part Two to cease the wrongful conduct and to make full reparation for the injury caused, it is not relieved thereby of the duty to perform the obligation breached The continuing obligation to perform an international obligation, notwithstanding a breach, underlies the concept of a continuing wrongful act . and the obligation of cessa¬tion ” (A/56/10, p 215, para 2)
80 To cease an illegal act and to offer appropriate assurances and guarantees of non-repetition, if circumstances so require, is not a discre¬tionary matter the State responsible for an internationally wrongful act is under an obligation to do precisely that, according to Article 30 of the ILC Draft Articles on State Responsibility In its Commentary to this Article, the ILC provides a useful consideration
“Where assurances and guarantees of non-repetition are sought by an injured State, the question is essentially the reinforcement of a continuing legal relationship and the focus is on the future, not the past ” (A/56/10, p 221, para 11)
XIII
81 Mexico’s claims are only partially answered m the present Judg¬ment Some of the holdings are more modest than the ones that are to be found in the LaGrand Judgment Some even contradict the rulings of LaGrand The limited legal reach provided in the present Judgment may not sufficiently serve the purpose of establishing the grounds for repara¬tions as a result of a wrongful act and the breach of an international obligation The law of State responsibility may not find in the present Judgment a source of further development
(Signed) Bernardo SEPULVEDA
*
38, The Court now turns to the objection of the United States based on the rule of exhaustion of local remedies. The United States contends that the Court “should find inadmissible Mexico’s claim to exercise its right of diplomatic protection on behalf of any Mexican national who has failed to meet the customary legal requirement of exhaustion of municipal remedies”. It asserts that in a number of the cases the subject of Mexico’s claims, the detained Mexican national, even with the benefit of the provision of Mexican consular assistance, failed to raise the alleged non-compliance with Article 36, paragraph 1, of the Vienna Convention at the trial Furthermore, it contends that all of the claims relating to cases referred to in the Mexican Memorial are inadmissible because local remedies remain available in every case. It has drawn attention to the fact that litigation is pending before courts in the United States in a large number of the cases the subject of Mexico’s claims and that, in those cases where judicial remedies have been exhausted, the defendants have not had recourse to the clemency process available to them; from this it concludes that none
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