Home page for ICJ case materials (briefs, hearings, orders)

http://212.153.43.18/icjwww/idocket/imus/imusframe.htm
 

Summary of Mexico’s claims

http://212.153.43.18/icjwww/idocket/imus/imuscr/imus_icr2003-24_20031215.PDF
Pages 6-16

    “This litigation comes in the wake of LaGrand and calls for the application of the same principles of law and reasoning to which the Court addressed itself then, but is distinguished in part by a major factual difference. The 52 Mexican nationals who are the subject of the present case are still alive and may still benefit from the legal redress which the LaGrand brothers were prevented from claiming.

The rights of Mexico and those of its nationals have been violated: it follows that both must be redressed, because “full reparation” is still possible. Mexico waives the right to any material compensation; it only wants fair trials for its nationals.”
 

Summary of U.S. rebuttal:

http://212.153.43.18/icjwww/idocket/imus/imuscr/imus_icr2003-29_20031219.PDF
Pages 44-51

    “Mexico asks this Court to decide not that States can, or should, but that they must, in all cases and under all circumstances, exclude evidence and void convictions and sentences in the event of a breach of the Convention without regard to age-old principles of finality of judgments, of causation and prejudice, and of evidentiary rules on reliability and probativeness. No State takes such an approach to its obligations under the Convention.

We have done what the Court’s opinion in LaGrand required. Even though the United States did not agree with the Court’s judgment in LaGrand, it has conformed its conduct to that judgment. This Court went far in LaGrand. Mexico says it didn’t go far enough. The United States respectfully but vigorously urges that it go no further.”
 
 

[Material in this section is derived wherever possible from the actual language of the ICJ transcripts.]
 

Disputed Facts

Nationality and violations

     Mexico (MX): Mexico has proven violations of Article 36 (1) (b) in all 52 cases currently before this Court.  All of the named individuals are Mexican nationals and the United States has failed to establish that any are dual nationals. It is plain that violations of Article 36 (1) remain widespread after LaGrand, even in cases involving the potential imposition of the death penalty.

     United States (US): Mexico has failed to establish the factual basis for its case, which is in a vastly different factual posture from that presented to this Court in LaGrand.  Mexico has not and cannot prove conclusively its allegations of systematic non-compliance by the United States.
 
 

Interpretations

“Without delay”

     MX: Article 36 (1) obligates a receiving State to provide consular notification “without delay” in order to facilitate consular protection.  The phrase was intended as a functional expression of immediacy, meaning prior to any interrogation. To hold otherwise, particularly in a capital case, would deprive the foreign national of the benefits of consular assistance at the very point at which that assistance is most critical. If the United States wanted to ensure compliance, it could just add an Article 36 statement to the Miranda warnings.

     US:  No State has understood Article 36 (1) to require consular access before interrogation because it would lead to absurd results to do so. Article 36 (1) has no implications for the interrogation of a foreign national: the consular officer has no obligation to visit, to communicate with, or to assist his national. Holding an interrogation in abeyance pending a consular response could jeopardize an investigation or threaten public safety.
 

“Review and reconsideration”

     MX:  The United States is not conducting review and reconsideration through its judicial system. The United States provides no remedy for violations of Article 36 (1), in any procedural posture at any level of the criminal proceedings. Clemency review is standardless, haphazard and arbitrary: it cannot satisfy the Court’s mandate in LaGrand.  By claiming “review and reconsideration” is accomplished by clemency review, what the United States has done is not to conform its conduct to LaGrand, but rather to conform LaGrand to its conduct.

     US: Courts of first instance can consider the effects of  Article 36 violations. Appellate courts may grant relief for violations of due process, even if a Vienna Convention claim per se is defaulted: what matters is the substance of the remedy and not the name attached to it. The United States has made a conscious choice to focus on clemency because that process of review and reconsideration is effective and is not hampered by legal constraints such as procedural default.
 

Due process

     MX:  Mexican nationals face unique obstacles to fair proceedings from the first moment of their detentions.  Mexico’s consular protection emphasizes early intervention and is highly effective in averting unfair trials and sentences.  The US understates the value of consular assistance in capital cases and overstates the capacity of its criminal justice system to protect the rights of foreign defendants facing the death penalty.

Consular notification, information and assistance are necessary to ensure the administration of justice and the minimum standards of due process.  Advisory Opinion OC-16 of the Inter-American Court provides meaningful guidance on the interlinkage of Article 36 rights with due process and the essential character of these rights in capital proceedings.

     US:  The consular services Mexico provides cannot be deemed to be essential to a fair trial; consular information and notification at most can have only an indirect effect on due process guarantees. Mexico’s picture of the American criminal justice system is wrong;  the Constitution and laws are expressly designed to ensure fair trials to all persons regardless of nationality.

The criminal justice system could not, as a practical matter, rely on consular assistance to ensure fairness.  Neither the Convention nor international law requires that consular officers assist their nationals, and resource constraints can severely limit the actual assistance consular officers provide. When the LaGrand Court fashioned its remedy of review and reconsideration which allows prejudice to be considered on an individualized basis, it rejected OC-16’s proposition that a breach of  Article 36 necessarily leads to an infirm conviction and sentence.
 
 

Admissibility and Jurisdiction

     US:  Mexico’s claims are inadmissible: it has not exhausted local remedies, it did not inform the US authorities of its concerns in a timely way and it does not apply the standards that it requires of the United States. The Court has no jurisdiction to declare null and void sentences and convictions handed down in accordance with federal and state domestic criminal law.

     MX: The preliminary objections raised by the United States should be rejected on the ground that they were raised outside the time-limits prescribed in the Rules of Court. Local remedies need not be exhausted if they are futile, the US was fully aware of Mexico’s concerns and Mexican law allows the initiation of legal actions to redress an Article 36 violation.  Mexico will fully embrace the Court’s findings in this judgment and give the judgment full effect in its own legal order, in the same way it expects the United States to do.
 
 

Effect of Article 36 on domestic judicial systems

     US: The Convention was intended to facilitate the activity of the consul within the existing State systems of criminal justice, not to change those systems. Mexico’s remedies call for an unwarranted intrusion into domestic criminal justice systems and an unacceptable curtailment of state sovereignty.

     MX: It is axiomatic that the United States is not entitled to elevate its municipal law doctrines and federal system of government above its international legal obligations to Mexico under the Vienna Convention.  Mexico only seeks to ensure that the legal means chosen by the USA to remedy Article 36 violations have the expected effect, with due regard for municipal law where it is invoked.
 
 

Remedies

     MX: Restitution here must take the form of annulment of the convictions and sentences that resulted from the proceedings tainted by the Article 36 violations. It is well established that the restoration of the status quo ante may require an order that a domestic judgment be annulled.

Annulment alone is not sufficient to remedy the violations. If a retrial is to follow the annulment, the proceedings must permit full respect for the rights under Article 36 of Mexico and its nationals, and they must be free of any taint from prior unlawful conduct.

Mexico further asks for an order that the United States once and for all to cease all violations of Article 36 vis-à-vis Mexico and its nationals, and provide Mexico with effective guarantees of non-repetition.

 It is in the interest of the sound administration of justice that there be a final, definitive decision on the question of the obligations covered by Article 36 of the Vienna Convention and on the reparation which follows from a violation of those obligations.
 

     US:  International jurisprudence has never gone so far as to say that annulment is the normal form of reparation for a judicial decision presumed to be internationally wrongful. Because the alleged Article 36 violations are at most incidental to the convictions and sentences, full restitution through annulment would be a disproportionate, inappropriate and unprecedented remedy.

The remedies Mexico proposes for breaches of the Vienna Convention would be in open conflict with the criminal procedure laws of most legal systems of the world.  No legal system in the world would subscribe to Mexico’s proposed rule on the exclusion of evidence obtained in the absence of consular assistance, and there certainly does not exist any generally accepted customary rule in that regard.

The requests for cessation and guarantees of non-repetition are moot inasmuch as the United States applies the LaGrand jurisprudence reasonably and in good faith.  Even though the United States did not agree with the Court’s judgment in LaGrand, it has conformed its conduct to that judgment. No further remedy is required.
 
 

Alternative Remedy

     MX:  In the event that restitution by annulment of the original convictions and sentences were not to be granted, [a remedy] would be the alternative establishment of a genuinely judicial procedure of review and reconsideration, in every respect distinct from the current clemency proceedings. This could be envisaged so as to allow the individuals concerned at least some chance of asserting their rights.

     US: There might be an approach based on the view that review and reconsideration solely for injuries to essential due process rights is not sufficient for LaGrand. Instead, there must be some additional increment of review that permits examining the Article 36 violation and potentially providing relief in some subset of cases even where that violation resulted in no impairment of an essential due process guarantee. In the rare case that might fall into this incremental area of review, another mechanism for review and reconsideration --such as clemency review, which has more expansive reasons and standards for providing redress --could apply.
 
 

Final submissions of the Parties

At the conclusion of the oral proceedings the Parties presented the following final submissions to the Court.
 

For Mexico:

The Government of Mexico respectfully requests the Court to adjudge and declare:

(1) That the United States of America, in arresting, detaining, trying, 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 nationals’ rights to receive such protection as Mexico would provide under Article 36 (1) (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 consular access before the competent authorities of the receiving State take any action potentially detrimental to the foreign national’s rights;

(3) That the United States of America 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); 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) violation 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 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 convictions 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 choosing, meaningful and effective review and reconsideration of the convictions 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 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).
 

For the United States of America :

On the basis of the facts and arguments made by the United States in its Counter-Memorial 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 LaGrand, 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 dismissed.

Prepared by:

Mark Warren
Human Rights Research
(613) 256-8308
February 3, 2004 (updated April 14, 2004)
return to the Human Rights Research home page for more consular rights material and links