128- Avena and Other Mexican Nationals (Mexico vs USA)

Mexico filed an application instituting proceedings against the United States before the International Court of Justice (ICJ) on January 9th, 2003 following alleged violation of articles 5 and 36 of the Vienna Convention on Consular Relations of April 24th, 1963, in various legal proceedings which had resulted in the death sentenced being pronounced against 54 Mexican nationals.

The applicant State had also filed a request for indication of provisional measures, aimed at preventing the lethal execution of any Mexican national before the ICJ could rule on the merits of the case as well as forbidding any action that might prejudice the rights of Mexico or its nationals. The Court granted this request and in its order of February 5th, 2003, it ordered the United States to take all appropriate measures and most notably to stay the execution of 3 Mexican nationals whose executions had been scheduled.

Order of 05-02-2003.pdf

The ICJ rendered its judgment on the merits of the case on March 31st, 2004. The United States raised preliminary objections on both the jurisdiction of the Court and the admissibility of the request. The Court these objections, whilst reserving certain of them for consideration at the merits stage. After making sure that non the nationals mentioned had dual Mexican-American nationality, the ICJ ruled that:

  • The United States had violated article 36 paragraph 1 sub-paragraphof the Vienna Convention on Consular Relations, which provides for the obligation of the host State to notify the State of origin without delay of any legal proceedings instituted against one of its nationals. The expression ”without delay” should be construed as meaning ” 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 United States had also violated the other sub-paragraphs of Article 36 paragraph 1 by not allowing Mexican consular officials to communicate freely with their nationals in 49 of the cases brought before the american justice and in 34 of those, not to assist or represent them in court.
  • The internal rule of procedural deficiency (a principle according to which intervention in proceedings is no longer allowed once the case has reached the federal level and which had already been the subject of an analysis of the Court in the LaGrand Case ) was prejudicial in 3 cases. However, the option of judicial re-examination was still open in the other cases.

Regarding the legal consequences of the violations of Article 36, the ICJ considered that the review or reconsideration of the convictions and sentences handed down by the Courts of the United States would be an adequate and sufficient remedy.

Judgment of 31-03-2004.pdf

This summary of the facts of this case and the proceedings is only proposed for informational purposes, does not engage Dome in any way and cannot replace the careful reading of the judgments and orders of the case.