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Avena and Other Mexican Nationals (Mexico v. United States of America)

See also 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) (Mexico v. United States of America)

Overview of the case

On 9 January 2003, Mexico brought a case against the United States of America in a dispute concerning alleged violations of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to 54 Mexican nationals who had been sentenced to death in certain states of the United States. At the same time as its Application, Mexico also submitted a request for the indication of provisional measures, among other things so that the United States would take all measures necessary to ensure that no Mexican national was executed and no action was taken that might prejudice the rights of Mexico or its nationals with regard to any decision the Court might render on the merits of the case. After hearing the Parties at public hearings on the provisional measures held on 21 January 2003, the Court, on 5 February 2003, made an Order, by which it decided that the :

“United States of America sh[ould] take all measures necessary to ensure that Mr. Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera [three Mexican nationals] [we]re not executed pending final judgment in these proceedings”,

that the “United States of America sh[ould] inform the Court of all measures taken in implementation of [that] Order”, and that the Court would remain seised of the matters which formed the subject of that Order until the Court had rendered its final judgment. The same day, it issued another Order fixing 6 June 2003 as the time-limit for the filing of the Memorial by Mexico and 6 October 2003 as the time-limit for the filing of the Counter-Memorial by the United States of America. The President of the Court subsequently extended those dates respectively to 20 June 2003 and 3 November 2003. Those pleadings were filed within the time-limits thus extended.

After holding public hearings in December 2004, the Court rendered its Judgment on 31 March 2004. Mexico had amended its claims during the written phase of the proceedings and again at the oral proceedings, so that the Court ultimately ruled on the cases of 52 (rather than 54) Mexican nationals.

The Court first considered four objections by the United States to its jurisdiction and five objections to admissibility. Mexico had argued that all of these objections were inadmissible because they had been submitted outside the time-limit prescribed by the Rules of Court, but the Court did not accept this. The Court then dismissed the United States objections, whilst reserving certain of them for consideration at the merits stage.

Ruling on the merits of the case, the Court began by considering whether the 52 individuals concerned were solely of Mexican nationality. Finding that the United States had failed to show that certain of them were also United States nationals, the Court held that the United States was under an obligation to provide consular information pursuant to Article 36, paragraph 1 (b), of the Vienna Convention in respect of all 52 Mexican nationals. Regarding the meaning to be given to the phrase “without delay” in Article 36 (1) (b), the Court further held that there is an obligation to provide consular information as soon as it is realized that the arrested person is a foreign national, or that there are grounds for thinking that he is probably a foreign national. The Court found that, in all of the cases except one, the United States had violated its obligation to provide the required consular information. Taking note of the interrelated nature of the three subparagraphs (a), (b) and (c) of paragraph 1 of Article 36 of the Vienna Convention, the Court then went on to find that the United States had, in 49 cases, also violated the obligation to enable Mexican consular officers to communicate with, have access to and visit their nationals and, in 34 cases, to arrange for their legal representation.

In relation to Mexico’s arguments concerning paragraph 2 of Article 36 and the right of its nationals to effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1), the Court found that, in view of its failure to revise the procedural default rule since the Court’s decision in the LaGrand case, the United States had in three cases violated paragraph 2 of Article 36, although the possibility of judicial re-examination was still open in the 49 other cases.

In regard to the legal consequences of the proven violations of Article 36 and to Mexico’s requests for restitutio in integrum, through the partial or total annulment of convictions and sentences, the Court pointed out that what international law required was reparation in an adequate form, which in this case meant review and reconsideration by United States courts of the Mexican nationals’ convictions and sentences. The Court considered that the choice of means for review and reconsideration should be left to the United States, but that it was to be carried out by taking account of the violation of rights under the Vienna Convention. After recalling that the process of review and reconsideration should occur in the context of judicial proceedings, the Court stated that the executive clemency process was not sufficient in itself to serve that purpose, although appropriate clemency procedures could supplement judicial review and reconsideration. Contrary to Mexico’s claims, the Court found no evidence of a regular and continuing pattern of breaches of Article 36 by the United States. The Court moreover recognized the efforts of the United States to encourage compliance with the Vienna Convention, and took the view that that commitment provided a sufficient guarantee and assurance of non-repetition as requested by Mexico.

The Court further observed that, while the present case concerned only Mexican nationals, that should not be taken to imply that its conclusions did not apply to other foreign nationals finding themselves in similar situations in the United States. Finally, the Court recalled that the United States had violated paragraphs 1 and 2 of Article 36 in the case of the three Mexican nationals concerned by the Order of 5 February 2003 indicating provisional measures, and that no review and reconsideration of conviction and sentence had been carried out in those cases. The Court considered that it was therefore for the United States to find an appropriate remedy having the nature of review and reconsideration according to the criteria indicated in the Judgment.


This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings

Written proceedings

Request for the indication of Provisional Measures of Protection

9 January 2003
Procedure(s): Provisional measures
Available in:
English

Memorial of Mexico

20 June 2003
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
English

Counter-Memorial of the United States of America

2 November 2003
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
English

Oral proceedings

Verbatim record 2003/1

Public sitting held on Tuesday 21 January 2003, at 9.30 a.m., at the Peace Palace, President Guillaume presiding
Procedure(s): Provisional measures
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/2

Public sitting held on Tuesday 21 January 2003, at 11.30 a.m., at the Peace Palace, President Guillaume presiding
Procedure(s): Provisional measures
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/3

Public sitting held on Tuesday 21 January 2003, at 3 p.m., at the Peace Palace, President Guillaume presiding
Procedure(s): Provisional measures
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/4

Public sitting held on Tuesday 21 January 2003, at 6 p.m., at the Peace Palace, President Guillaume presiding
Procedure(s): Provisional measures
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/24

Public sitting held on Monday 15 December 2003, at 10 a.m., at the Peace Palace, President Shi presiding
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/25

Public sitting held on Monday 15 December 2003, at 3 p.m., at the Peace Palace, President Shi presiding
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/26

Public sitting held on Tuesday 16 December 2003, at 10 a.m., at the Peace Palace, President Shi presiding
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/27

Public sitting held on Tuesday 16 December 2003, at 3 p.m., at the Peace Palace, President Shi presiding
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/28

Public sitting held on Thursday 18 December 2003, at 10 a.m., at the Peace Palace, President Shi presiding
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
Original Language
Translation
(bilingual version) Translation

Verbatim record 2003/29

Public sitting held on Friday 19 December 2003, at 3 p.m., at the Peace Palace, President Shi presiding
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
Original Language
Translation
(bilingual version) Translation

Other documents

Documents submitted by Mexico after the Closure of the Written Proceedings

26 November 2003
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
English

Documents submitted by the United States of America after the Closure of the Written Proceedings

10 December 2003
Procedure(s): Questions of jurisdiction and/or admissibility
Available in:
English

Orders

Order of 5 February 2003

Fixing of time-limits: Memorial and Counter-Memorial
Available in:
English French Bilingual

Order of 5 February 2003

Request for the Indication of Provisional Measures
Procedure(s): Provisional measures
Available in:
English French Bilingual

Order of 22 May 2003

Extension of time-limits: Memorial and Counter-Memorial
Available in:
English French Bilingual

Judgments

Summaries of Judgments and Orders

Summary 2003/2

Summary of the Order of 5 February 2003
Available in:
English French

Summary 2004/1

Summary of the Judgment of 31 March 2004
Available in:
English French

Press releases

Press release 2003/1

10 January 2003
Mexico brings a case against the United States of America and requests the indication of provisional measures
Available in:
English French

Press release 2003/2

15 January 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Request for the indication of provisional measures - The Court will hold public hearings on Tuesday 21 January 2003
Available in:
English French

Press release 2003/4

22 January 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Conclusion of the hearings on provisional measures
Available in:
English French

Press release 2003/7

30 January 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Provisional Measures - Court to give its Order on Wednesday 5 February 2003 at 3 p.m.
Available in:
English French

Press release 2003/9

5 February 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Provisional Measures - The Court indicates to the United States of America that it must take "all measures necessary" to prevent the execution of three Mexican nationals, pending its final judgment
Available in:
English French

Press release 2003/17

27 May 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Extension of time-limits for the filing of written pleadings
Available in:
English French

Press release 2003/25

25 July 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - The Court will hold public hearings from 15 to 19 December 2003
Available in:
English French

Press release 2003/41

9 December 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Programme of the hearings to be held from 15 to 19 December 2003
Available in:
English French

Press release 2003/45

23 December 2003
Avena and other Mexican Nationals (Mexico v. United States of America) - Conclusion of the public hearings - Court ready to begin its deliberation
Available in:
English French

Press release 2004/15

22 March 2004
Avena and other Mexican Nationals (Mexico v. United States of America) - Court to deliver its Judgment on Wednesday 31 March 2004 at 10 a.m.
Available in:
English French

Press release 2004/16

31 March 2004
Avena and other Mexican Nationals (Mexico v. United States of America) - The Court finds that the United States of America has breached its obligations to Mr. Avena and 50 other Mexican nationals and to Mexico under the Vienna Convention on Consular Relations
Available in:
English French