In Avena, Mexico brought a suit on behalf of certain Mexican nationals arrested in various states of the United States. The case focused on those sentenced to death for murder, and awaiting execution. Mexico alleged that 51 of its nationals had not been informed about consular access upon arrest, but were nonetheless convicted and sentenced to death. Mexico asked for reversal of those convictions and sentences. Beyond its implications for the life or death of those Mexican nationals, the suit involved complex questions of the relationship between international obligations and domestic criminal proceedings. Mexico's claim against the US was subject to the compulsory jurisdiction of the ICJ because both states are party to the VCCR, as well as the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.
1. Mexico v. United States of America
(A) The Purpose of Consular AccessThe issue of consular protection has had a long history in relations between states. Consular involvement is aimed at ensuring the humane treatment of and fair proceedings for, detained foreign nationals. A foreign national is typically unfamiliar with both police practices and criminal proceedings in a foreign state, may not be able to speak the local language, and may not be able to take advantage of the criminal justice safeguards due to ignorance or lack of resources. Foreign nationals may be treated discriminatorily on the basis of national origin or, short of overt discrimination, in ways that do not account for cultural differences relevant to assessing their conduct. By advising co-nationals, and by explaining their rights in a way that may be more comprehensible compared to explanations given by local counsel, a consul may be able to help a foreign national defend him or herself more effectively. If a co-national is being treated inappropriately, a consul may approach the authorities of the receiving state.
The scope of the receiving state's obligation is defined by art 36 of the VCCR. Article 36 requires consular access for all nationals of a state party to the VCCR, even if they are long-term residents of the receiving state. Critically for Avena, Art 36 requires that a detainee be informed about consular access so that the detainee can decide whether to seek consular assistance.
Article 36 provides as follows:
1. With a view to 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 communication 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 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 sub-paragraph;
(c) consular officials shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. 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.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
(B) Prior Cases on Consular Access
Avena is not the first Art 36 case filed before the ICJ. In 1979, the US sued Iran over the taking of hostages at US diplomatic and consular facilities in Iran — including the takeover of US consulates in Tabriz and Shiraz and the sequestration of consular officers in those cities. The US based its suit, in part, on the VCCR, arguing that the takeover and sequestration violated its right to provide consular protection to US nationals and the concomitant right of US nationals to consular protection. The Court found that there had been a violation of art 36.The consular access issue has also generated litigation in the US. Defence lawyers have demanded relief where Art 36 had been violated. In cases involving their nationals, foreign governments have entered diplomatic protests, requested clemency from state governors, and filed amicus curiae briefs in courts. US courts have typically denied relief, either on the basis that the claim has not been raised by the foreign national in the trial court and thereby has been defaulted, or on the rationale that the VCCR does not require a judicial remedy.
Besides the ICJ, another international court has been involved in the consular access issue. In 1997, Mexico sought an advisory opinion from the Inter-American Court of Human Rights ('IACHR'), which operates under the Organization of American States. The IACHR has the power to issue an advisory opinion on any 'treaties concerning the protection of human rights in the American states', a plain reading of which necessarily encompasses treaties that are not limited to those directly affecting the region.
Although Mexico's request did not in a formal sense implicate any particular US state, the Government of Mexico recited to the IACHR that it was 'taking action on behalf of 38 Mexican nationals who have been sentenced to death in ten federative entities of the United States of America', and the only information it provided to the IACHR arose from US-based cases. Mexico related that it had protested over these cases to the US. The US filed written observations with the IACHR and participated in oral argument, arguing that art 36 creates no judicially enforceable rights for a detained foreign national, and that an apology suffices as a remedy. Costa Rica, El Salvador, Guatemala, Honduras, Paraguay, and the Dominican Republic made written and oral submissions to the Court supporting Mexico. No state supported the US.
Since 1998, three VCCR cases relating to arrested foreign nationals have been filed in the ICJ. All three have been against the US, and all three have involved situations in which the detaining authorities failed to inform foreign nationals about the right to consular access, but in which the foreign nationals were nevertheless convicted of crimes. Although art 36 does not make any distinction in regard to the seriousness of the offence, all three of these cases concerned foreign nationals convicted of murder, sentenced to death, and awaiting execution.
The first of these most recent cases considered by the ICJ was the 1998 case concerning the Vienna Convention on Consular Relations (Paraguay v United States of America) (Provisional Measures), which resulted from a suit filed by Paraguay on behalf of a national who faced imminent execution in Virginia. Paraguay argued that, in the event of the conviction of a foreign national who was not informed about consular access, the courts must provide redress. The US argued that a receiving state that violates art 36 by failing to inform a foreign national about consular access is not required to reverse a resulting criminal conviction. The ICJ issued an interim order to the US asking that the Paraguayan national not be executed pending a final judgment.
When the case was taken to the US Supreme Court, the US took the position that the interim order issued by the ICJ at Paraguay's request was not binding. The Supreme Court refused to stay the execution, and it was carried out. The ICJ case continued despite the execution, and Paraguay filed a memorial.
However, before the US had replied, Paraguay withdrew the case, preventing it from proceeding to a final judgment and from allowing a resolution of the issues.
In 1999, a second ICJ case was filed against the US, resulting in the ICJ's ruling in the LaGrand Case (Germany v United States of America) (Judgment). On this occasion, Germany sued on behalf of two German nationals sentenced to death in Arizona. One had just been executed, and the other faced imminent execution. The ICJ issued an interim order against the second execution pending a final judgment. On the basis of that interim order, Germany asked the US Supreme Court to stay the execution. However, the Supreme Court refused and the execution was carried out.
In light of this execution, Germany added a further claim against the US — that this second execution had violated the ICJ's interim order. On the VCCR claim, Germany and the US differed on the required remedy where a foreign national has been convicted without having been informed about consular access. Germany argued for a judicial remedy to reverse the conviction and sentence, whereas the US asserted that it would suffice if the receiving state were to apologise after the execution of a foreign national.
Unlike the Breard Case, the LaGrand Case proceeded to a judgment. The ICJ ruled, for the first time in its history, that interim orders are binding and that the execution was unlawful for that reason. It also found the execution unlawful due to the violation of art 36(2) of the VCCR. When a foreign national is convicted and sentenced without having been informed about consular access, the Court held that the receiving state must provide for the 'review and reconsideration' of the conviction and sentence in light of the VCCR violation. The Court said that the US could not avoid the obligation to provide 'review and reconsideration' by invoking default rules.
2. Mexico's Case Against Theus
In 2003, Mexico filed against the US before the ICJ in Avena. Avena differed from those suits brought by Paraguay and Germany due to the large number of foreign nationals involved. As in the prior two cases, the ICJ issued an interim order staying executions pending a final judgment. The main issue in Avena concerned a receiving state's obligation in the face of a conviction where the foreign national had not been informed about consular access. The US argued that the Court's judgment in the LaGrand Case did not require a judicial remedy from a receiving state's courts, but could be satisfied by executive remedy in the form of clemency. Further, the US argued that 'review and reconsideration' as mandated in the LaGrand Case did not require that a conviction be reversed, but only that consideration be given as to whether reversal was appropriate on the facts of a case. Mexico argued that reversal was required in every case that proceeded to conviction and sentence and where the foreign national was not advised about consular access. Avena thus involved, in significant measure, a request for clarification of what the Court intended in the LaGrand Case.A Exhaustion of Domestic Remedies
Apart from challenging the merits of Mexico's claim, the US made a series of arguments to the effect that the ICJ lacked jurisdiction and that the case was inadmissible. One of its arguments relating to admissibility was that domestic remedies in the US had not been exhausted. This raised an unusual exhaustion issue because of the dual nature of the rights granted by art 36: those of the sending state on the one hand, and those of the sending state's national on the other.En route to deciding the exhaustion issue in Avena, the ICJ distinguished between suits to vindicate the rights of the sending state and suits to vindicate the rights of a sending state's national, although it acknowledged that the two rights are interwoven. A sending state has rights of its own; if a receiving state fails to inform a detained sending state national about consular access, the right of the sending state to protect its nationals is violated. The ICJ held that a sending state may assert a claim on that basis without an exhaustion of domestic remedies, even if the sending state is also asserting that the individual rights of a national were violated.
Judge Vereshchetin, writing separately, opined that this ruling meant the Court was inappropriately allowing a sending state to avoid the exhaustion requirement, and specifically that it was allowing the sending state to assert the rights of its national without exhausting. Judge Vereshchetin's concerns would seem, however, to be unwarranted. In the majority's analysis, if the sending state seeks relief for a national, the exhaustion requirement must still be met. Stating that a national's rights must be asserted in the domestic legal system, the ICJ observed that '[o]nly 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'.
B The Timing of Notification
A point that remained unresolved by the ICJ in the LaGrand Case was the timing of the notification required to be given to a detained foreign national. Article 36(1)(b) of the VCCR requires that the information be given to a detained foreign national 'without delay', and that, upon the detainee's request, a consul be contacted 'without delay'. Yet police in the US frequently interrogate shortly after arrest. Mexico argued that the notification must be provided at the time of arrest, and in any event prior to interrogation. The US argued that immediate notification is not required.
The ICJ said that the phrase 'without delay' must be considered in light of the fact that the detaining authorities might not know immediately that a detainee is a foreign national. The Court observed that the states which discussed the phrase 'without delay' during the drafting of the VCCR did not connect it to the time 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 interpreted 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.
The Court read art 36 as requiring that information about consular access be given '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'. For that reason, the Court said that the duty to inform 'is not to be understood as necessarily meaning immediately upon arrest'. However, the Court also said that the authorities must inquire at the time of arrest to ascertain nationality status.
The Court said that the drafting history of the VCCR showed no variation in the meaning of the phrase 'without delay' throughout its several appearances in art 36. Thus, both the provision of information to the detainee and, upon a detainee's request, the provision of information to a consul, must occur as soon as the authorities are aware of the detainee's nationality. The Court's finding that an obligation to advise the foreign national exists as soon as nationality status is known suggests that in such cases, any interrogations conducted without the detainee being informed about consular access would constitute a violation that would have to be taken into account in determining whether it prejudiced the outcome of the foreign national's fate. The Court did not, however, elaborate on circumstances that might constitute prejudice.
Writing separately, Judge Tomka said that the majority's view of the point in time at which the obligation to inform arises does not reflect the meaning of art 36, and runs the risk of weakening the protection it affords to a foreign national. Judge Tomka points out that art 36 says nothing about the knowledge of the detaining authorities regarding the nationality status of a detainee, and hence does not condition the obligation to inform a foreign national on knowledge of nationality status, or even on the existence of circumstances that might suggest that the detainee is a foreign national. Invoking the legal maxim ignorantia non excusat, Judge Tomka said that art 36 can best be implemented by a procedure whereby the detaining authority informs all detainees that if they are of foreign nationality they have the rights provided by the VCCR.
The majority comes quite close to this position. After reciting that it is difficult to distinguish who are the foreign nationals from among those arrested, it states:
were each individual to be told [upon arrest] that, should he be a foreign national, he is entitled to ask for his consular post to be contacted, compliance with this requirement under Article 36, paragraph 1 (b), would be greatly enhanced.
As noted, the majority also found that there was an obligation to inquire about nationality status. This suggestion would seem to be the appropriate way to implement art 36. By saying nothing about awareness of foreign nationality, Art 36 imposes a requirement to inform each foreign national. As a practical matter, that obligation cannot be met without informing all detainees.
If the authorities fail to ascertain nationality but proceed to interrogate, they violate what the majority finds to be the obligation of the receiving state to ascertain nationality. To be sure, the court did not have before it instances that raised the timing issue sharply, so the issue may remain to be clarified in future cases.
C Scope of Required 'Review and Reconsideration'
In Avena, the ICJ clarified that the 'review and reconsideration' of which it spoke in the LaGrand Case must be carried out by a court, considering that 'it is the judicial process that is suited to this task'. Referring to the LaGrand Case, it found that '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'. As to the content of the 'review and reconsideration', it said that convictions need not be reversed in each and every case. Rather, a court must take account of the specific VCCR violation and, in particular, the legal consequences for the detainee that stem from that violation.
Furthermore, in relation to the review jurisdiction of domestic courts, the ICJ wrote:
The question of whether the violations of Article 36, paragraph 1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the US and is for them to determine in the process of review and reconsideration. In so doing, it is for the courts of the US 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.
The Court's insertion of a prejudice requirement came about oddly, as neither party had argued for it. Mexico asserted that a conviction be reversed without the need for a finding of prejudice. The US had argued that no judicial remedy was needed in this case, and that the review and reconsideration framework laid out in the LaGrand Case was sufficient. It was the Court itself that devised a prejudice requirement as a supplement to its position that a judicial remedy is needed. As this issue was not litigated, there is little in the proceedings to indicate what was meant by the requirement.
The US had, however, previously raised the prejudice issue in the Breard Case. There, the US argued that a judicial remedy should not be required, even if an additional requirement of prejudice were attached. In oral argument to the Court, the US said that it would be problematic to have a rule that a failure of consular notification required a return to the status quo ante only if notification would have led to a different outcome. It would be unworkable for a court to attempt to determine reliably what a consular officer would have done and whether it would have made a difference.
This point is undoubtedly valid. It is near impossible to determine how, in a particular case, a consul might have affected the proceedings. A foreign national would only be able to ask a court to speculate that a given aspect of the proceedings might have occurred differently had a consul been involved. The VCCR, by requiring consular access, presumes that it is useful.
Since a prejudice requirement could potentially eviscerate the requirement of providing 'review and reconsideration', and since the Court clearly contemplates a serious 'review and reconsideration', prejudice must not be understood to require a finding that the outcome might have been different because of some particular aspect of the proceedings. A foreign national is prima facie prejudiced if he or she is put in the position of defending a criminal case without consular assistance, in circumstances where consular assistance might have been forthcoming.
D Impact on Domestic Criminal Proceedings
As previously noted in the LaGrand Case, the ICJ ruled that its interim orders are binding on the states against which they are issued. This matter gained no further development in Avena. The Court did issue an interim order that was in effect for the 15 months that elapsed until the Court's final judgment was issued. During that time none of the Mexican nationals were executed. Thus, in this instance, the US did not violate the interim order.The judgment in Avena had an immediate impact on one of the Mexican nationals awaiting execution in the US. Osvaldo Torres Aguilera was scheduled to be executed on a date six weeks after Avena was issued. Torres Aguilera's attorneys had exhausted all recourse under US law. Based on Avena, they approached the Governor of Oklahoma with a request for clemency. The European Union, in letters to both the Governor of Oklahoma and the Oklahoma Pardon and Parole Board, referred to Avena as being binding on the US and asked that the execution be stayed so that 'review and reconsideration' of the conviction and sentence could be undertaken. In these letters, the EU recited both its opposition to capital punishment, and its view that consular access is an important guarantee for
detained foreign nationals. Torres Aguilera's attorneys also approached the Oklahoma Court of Criminal Appeals with a request that the case be given the 'review and reconsideration' required by Avena. Both the Court and the Governor responded. In Torres v Oklahoma, the Appeal Court stayed Torres Aguilera's execution and ordered that a trial court determine 'whether Torres was prejudiced by the State's violation of his Vienna Convention rights in failing to inform Torres, after he was detained, that he had the right to contact the Mexican consulate'. Only hours after the Appeal Court's judgment, the Governor commuted Torres Aguilera's sentence to life in prison, citing Avena and the art 36 violation.
The Appeal Court issued its order without an explanatory opinion, but Chapel J, in a specially concurring opinion, found that by virtue of the US' ratification of the Optional Protocol, his Court was obliged to respect Avena. Justice Chapel also analysed the prejudice issue that was left unelaborated by the ICJ. Prejudice would be present, he wrote, if application of a three-pronged test demonstrated that Torres Aguilera was unaware of his right to consular access, that he would have availed himself of it had he been informed about it, and that the Mexican consulate would have provided consular assistance. Following this analysis, a trial court would almost certainly be required to find prejudice in this case.
3. Assessment
In Avena, the ICJ usefully clarified that a judicial mechanism is contemplated by art 36(2) of the VCCR. Hence, a remedy must be provided by a court, beyond and above any executive remedies such as clemency or apologies. However, the prejudice requirement introduced by the ICJ still requires clarification. If construed broadly, a prejudice requirement could undermine the effectiveness of judicial remedies. What is certain is that the VCCR contemplates a need for consular access for detained foreign nationals. Any detained foreign national who is denied consular access rights would be presumptively prejudiced, even though determining how consular assistance would have played itself out in a particular case is highly speculative.
The applicability of the judgment in domestic courts is one of Avena's most important aspects, given that most international legal obligations fall on states in a way that requires implementation by the executive branch. Article 36 of the VCCR, as construed in the LaGrand Case and Avena, requires judicial enforcement. This aspect of both judgments could have significant application in regard to human rights obligations, as human rights treaties may, in particular situations, call for a judicial remedy.
The ICJ limited itself to the international convention it was called upon to construe. It did not analyse consular access as a matter of human rights, as the IACHR had done. The Court's jurisdiction was based on the VCCR, and on the VCCR alone. Given the limitations on the parties' acceptance of the Court's jurisdiction, the ICJ had no jurisdiction over general questions of international law.
Nonetheless, Avena may impact significantly upon human rights litigation. The US objected to the claims put forward by Mexico as being inadmissible, on the grounds that they might require changes in domestic administration of criminal justice. The US asserted that Mexico was trying to make the ICJ 'function as a court of criminal appeal'. The ICJ was correct to ignore this objection, however, because whenever a state agrees by treaty that it will afford certain rights, it sheds the mantle of sovereignty that would otherwise allow it to act at will. Avena may hold implications well beyond the primary issue of consular access for foreign nationals.
As regards this primary issue, the judgments in the LaGrand Case and Avena may have a significant impact on the practice of domestic courts around the world. Courts have a significant role to play in a backup capacity in regard to consular access. If violations are committed by the executive branch, redress can be provided by the courts. That courts can act in such a way has been mandated in the LaGrand Case and reaffirmed in Avena.
4. The Latest Position of The Case
On 5th, June 2008, Mexico filed a Request for interpretation of the Judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) and asked for the urgent indication of provisional measures. A request for interpretation opened a new case. Mexico noted that in previous cases, the Court ruled that its jurisdiction to provide an interpretation of one of its own judgments was a special jurisdiction deriving directly from Article 60 of the Statute. In its Request Mexico recalled that, in the Avena Judgment, the Court inter alia found that the United States had breached Article 36 of the Vienna Convention on Consular Relations in the cases of 51 Mexican nationals by failing to inform them . . . of their rights to consular access and assistance; and that the Court determined, in paragraph 153 (9) of the Judgment, the remedial obligations incumbent upon the United States.Mexico contended that a fundamental dispute had arisen between the parties as to the scope and meaning of paragraph 153 (9) and that the Court needs to provide guidance to the parties. Mexico asked the Court to adjudge and declare that the obligation incumbent upon the United States under paragraph 153 (9) of the Avena Judgment constituted an obligation of result as it is clearly stated in the Judgment by the indication that the United States must provide review and reconsideration of the convictions and sentences but leaving it the means of its own choosing; and that, pursuant to the foregoing obligation of result,
(1) the United States must take any and all steps necessary to provide the reparation of review and reconsideration mandated by the Avena Judgment; and
(2) the United States must take any and all steps necessary to ensure that no Mexican national entitled to review and reconsideration under the Avena Judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation.
Mexico explained that provisional measures are clearly justified in order both to protect Mexico's paramount interest in the life of its nationals and to ensure the Court's ability to order the relief Mexico seeks.
The court on 13th June, 2008 declared that it will hold public hearings on 19th and 20th June, 2008 regarding the request for the indication of provincial measures. The court delivered its judgment on 16th July, 2008, that United States of America shall take all measures necessary to ensure that five Mexican nationals are not executed pending its final judgment.
On 16th july, 2008, Mexico requested for the indication of Provisional measures. On 22nd, July, 2008, the court fixed the time limit for the filing of written observations by the Unites States of America. While on 4th, September, 2008, the court authorized the Parties to provide further written explanations, pursuant to Article 98, paragraph 4, of the Rules of Court, on Mexico's request for interpretation. It fixed 17 September and 6 October 2008 as the time-limits for the filing of those further written explanations by Mexico and the United States respectively. The explanations were filed within the time-limits thus fixed. Following its previous practice, the Court did not consider that there was any reason to hold hearings in the case. The Judgment of the Court on the Request for interpretation filed by Mexico will be delivered at a public sitting, the date of which will be announced in due course. As of now the case is under deliberation.
Bibliography
Primary Sources:
ICJ Reports
Vienna Convention on Consular Relations
Secondary Sources:
# James Crawford, The Creation of States in International Law, 2nd. Ed., 2006, Clarendon Press, Oxford, U.K
# Malcolm N. Shaw, International Law, 5th ed., 2003, Cambridge University Press, U.K
# Official website of International Court of Justice, available at
http://www.icj-cij.org
# Avena and Other Mexican Nationals, also available at
www.propertyrightsresearch.org/articles3/avena_and_other_mexican_national.htm
# Natalie Klein, SSRN-Avena and Other Mexican Nationals: How the International court of justice lost its crown, also available at
http://law.anu.edu.au/anzsil/conferences/2004/proceedings/klein.pdf
# John Quigley, AVENA AND OTHER MEXICAN NATIONALS (MEXICO V UNITED STATES OF AMERICA), Melbourne Journal of International Law
www.austlii.edu.au/au/journals/MelbJIL/2004/17.html
# Jacob Katz Cogan, International Law Reporter: ICJ: Avena and Other Mexican Nationals
ilreports.blogspot.com/2008/06/icj-avena-and-other-mexican-nationals.html
# William J. Aceves, Consular Notification and the Death Penalty: The ICJ's Judgment in Avena, American Society of International Law
http://www.asil.org/insigh130.cfm
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