World Court Consular Notification and Death Penalty Challenge Revisited: Mexico v. United States

On January 9, 2003, Mexico instituted proceedings before the International Court of Justice (ICJ or Court) against the United States of America concerning alleged U.S. violations of the 1963 Vienna Convention on Consular Relations, a treaty to which both Mexico and the United States are parties, in connection with 54 Mexican nationals awaiting execution in 10 U.S. states (Arizona, Arkansas, California, Florida, Illinois, Nevada, Ohio, Oklahoma, Oregon and Texas).  The ICJ, which is the principal judicial organ of the United Nations entrusted with settling legal disputes between sovereign states, consists of 15 judges elected to nine-year terms by the UN General Assembly and Security Council.  The Court has its seat at the Peace Palace in The Hague, The Netherlands.

 

Mexico's Application accuses the United States of a systemic violation of its obligation under Article 36 of the 1963 Convention to inform the 54 convicted Mexican nationals of their right to consular assistance and to provide relief adequate to redress such violation.  Article 36 sets forth the right of communication and access, which is the basic principle of consular notification, it spells out the modalities of consular notification, and it lists the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving state.  Article 36, paragraph 1(b) of the Convention provides in particular:

 

If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.  Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.  The said authorities shall inform the person concerned without delay of his rights under this subparagraph.

 

According to Mexico, in the 54 cases concerned, the United States authorities either did not attempt to comply with Article 36 before Mexican nationals were tried, convicted and sentenced to death, failed to provide the required notification "without delay," or informed the detained Mexican national of his rights to consular notification and access in connection with proceedings other than capital charges brought against him.

 

Mexico has asked the Court to order the United States to re-establish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Mexico's nationals in violation of its obligations under international law, and to take all necessary steps to ensure that U.S. municipal law enables full effect to be given for the purposes for which the rights afforded by Article 36 are intended, both with regard to the 54 Mexican nationals currently on death row and to any other Mexican national in U.S. territory now and in the future.  In particular, Mexico asserts that the U.S. must bar the imposition of any procedural penalty for the failure timely to raise a defense based on the 1963 Convention where competent U.S. authorities have breached their obligation to advise a Mexican national of his or her rights under the Convention.  In effect, Mexico is asking the ICJ to order the United States to dismiss or re-try the criminal cases involving the 54 Mexican death row inmates.  Mexico also has requested the Court to declare that the right to consular notification under the Vienna Convention is a human right and that the U.S. must provide Mexico with a guarantee of the non-repetition of the acts complained of.

 

As the basis of the Court's jurisdiction, Mexico is relying on Article I of the Vienna Convention's Optional Protocol concerning the Compulsory Settlement of Disputes of April 24, 1963, to which both Mexico and the United States are parties.  Article I establishes the Court's jurisdiction over disputes arising out of the interpretation or application of the Convention.  As is usual in "involuntary" cases brought unilaterally by claimant states, the United States is likely to argue that the Court lacks jurisdiction to entertain Mexico's Application and/or that the Application is inadmissible, which arguments usually are dealt with by way of a separate, initial phase of the proceedings.

 

Mexico also has asked the ICJ urgently to indicate provisional measures designed to ensure that no Mexican national be scheduled for execution or be executed in the United States pending final judgment in this case.  In order to grant such interim relief, the Court needs only to satisfy itself that prima facie jurisdiction exists in the case based on the existence of a dispute as to the application of the Vienna Convention within the meaning of Article I of the Optional Protocol, and that unless such relief were granted, there would be a risk of irremediable harm to the subject-matter of the case.  Although an Order granting such relief is binding, it can never be taken itself as establishing jurisdiction in the case and, therefore, does not preclude a subsequent finding that the Court lacks jurisdiction or that the Application is inadmissible.

 

This is the third time within five years that a country has instituted proceedings against the United States over alleged violations of the 1963 Vienna Convention in connection with the death penalty administered in the United States.  On April 3, 1998, Paraguay brought a case before the ICJ over alleged U.S. violations of the Convention in an effort to prevent the execution of Angel Francisco Breard, a Paraguayan national who was on death row in Virginia at the time.  Notwithstanding the Court's Order of April 9, 1998 ruling, unanimously, that, pending final judgment in the case, the United States should take all measures at its disposal to prevent Breard's execution on April 14, 1998, his execution took place as scheduled.  The case subsequently was discontinued at Paraguay's request on November 10,1998.

 

Germany had more success with its March 2, 1999 Application against the United States in a similar dispute concerning the case of Karl and Walter LaGrand, two German nationals convicted of armed robbery and murder in Arizona.  After the Court's Order of March 3, 1999 ruled, unanimously, that the U.S. should take all measures at its disposal to prevent Walter LaGrand's execution and transmit the ICJ Order to the competent authorities, the death sentence still was carried out.  The Court's landmark decision of June 27, 2001 found, therefore, that the United States had violated the 1963 Convention as complained by Germany and had failed to comply with the provisional measures Order, the binding effect of which the Court explicitly confirmed for the first time.  The Court also found, however, that it was not necessary for it to consider Germany's contention that the individual right embodied in Article 36(1) has assumed the character of a human right. 

 

Under Article 59 of the ICJ Statute, decisions of the ICJ are binding only on the parties to the specific case, i.e., they do not bind third states.  Thus, the 2001 judgment applies only to the obligations of the U.S. in cases of severe penalties imposed by U.S. courts upon German nationals.  Although the Court is not formally bound by its own precedents, it does tend to follow them in practice.  The Court has made it clear that the issues in cases of this kind do not concern the entitlement of the federal states of the United States to resort to the death penalty for the most heinous crimes and that its function is not to act as a universal supreme court of appeal of national criminal proceedings. 

 

The full text of the press communiqué regarding this case (No. 2003/1) is available on the World Court's Web site: <http://www.icj-cij.org>.

 

For further discussion of these and related issues, please see the previous ASIL Insights, "World Court Rules Against the United States in LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations," July 2001, "International Court of Justice Orders United States to Stay Execution of Paraguayan National in Virginia" April 1998.

 

About the Author:  

Pieter H.F. Bekker, Ph.D. practices international law and arbitration at White & Case LLP in New York City, and formerly served as a staff lawyer at the ICJ in The Hague.  He has written two books ("Commentaries on World Court Decisions (1987-1996)" and "World Court Decisions at the Turn of the Millennium (1997-2001)," both with Kluwer) and numerous articles and notes on the ICJ.  He co-chaired the 94th Annual Meeting of the American Society of International Law in April 2000.