avena and other mexican nationals (mexico v. united states of america) - judgment of 31 march 2004

8/3/2019 Avena and Other Mexican Nationals (Mexico v. United States of America) - Judgment of 31 March 2004

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DECLARATION OF PR E SI D E N T SH1

I n voting in favour of opcralive paragraph 153 ol' Ih c Judgment, Ishould like to make it clear tha t I still main ta in m y views as cxprcssed inmy separate opinion annexed to the Lacrand Judgment ( I .C. Reporrs2001, pp. 518-524) with regard both to the Court's itlterpretation thatArticle 36, paragraphs 1 and 2, of the Vietina Convention on ConsularRelations creates individual rights, and to the Court's ruling on "reviewand reconsideration of the conviction and sentence" as a form of remedyfor breach by ~ h ceceiving State of its obligations und er Article 36 of theConvention.

(Signed) SHI Jiuyong.


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AVENA A N D OTHERS (DECI,. RANJEVA) 76bound to give evidence against himself). Howcvcr, in terms of the Rulesof' Court, this principle does no t appcar lo have been construed strictly.Article 62, paragraph 1 , of the Rules confers on the Court full discretion-ary powers in respccl of cvidence gathering. If the Court decides to granta respondent's request, it may order the other party to produce evidcncc.The following precedent provides support for this interpretation:

"the PCIJ responded Fdvourably to an Agent who requested theCourt to ask the other party to produce an administrative documentin support of' the interpretation of a certain conception of adrninis-trative law which he had expounded before the Court. The Court,aflcr deliberation, decided to comply with this request." (GeneviiveGuyornar, Conzm~ntuire u Rkg:glerne~llde la Cour inrrrnut ional~dcJustice, 1983, p. 41 1, referring to P. C . .J.. Series E, No. 8 , p. 268.)

5. It should be noted, however, that the Court cannot impose anysanction for failure to produce cvidence, other than the inferences it maydraw from such abstention or rert~sal. n the CorJu Chunnel case, the evi-dcncc requested by the Court was refused by the party in question:

"lt is not therefore possiblc to know the real content of thesenaval ordcrs. The Court cannot, however, draw from this refusal toproduce the orders any conclusions differing from those to which lhcactual events gave rise." (Me r i t s , Judgrrlmr, I .C.J . Reporls 1949,p. 32.)

6. In the absence of any obligation capable or impugning the freedomof action or the parties in relation to the production of evidence, theCourt's only mcans of establishing the truth is its own powcr of determi-nation. That limitation explains the purely factual nature of the ai~alysisin paragraphs 56 and 57.

7. With respect to paragraph 40, I would like to give my interprcla-lion. The problem arises ou t of Mexico's wholesale espousal of Ger-many's argument in the LaGrancd (Germany v. United Stcries of Americu)case, as set out in paragraph 75 of lhc 2001 Judgment; that strategy byMexico is explicable : it was sceking lo obtain th e benefit of the LaGrmdjurisprudence pertaining to the protection of the "individual rights" of itsnationals. On closer examination, however, the two claims - ermanand Mexican - ppear quite different in terms o r their subject-matter.Germany joined together its claims in its own right and those concerningthe protection of the individual rights of the LaGrand brothers. In theprcsent case, the Mexican claim is a complex one: the Applicant firs1 aclsin its own name; secondly, it acts in the exercisc of its right to ensure theprotection of its nationals; and lastly - point that should be empha-sized- mplementation of the individual rights of the Mexican nationalsis situated in the contcxt of the United States judicial systcm. Both Ger-


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AVENA AND OTHERS (DECL. RANJEVA) 77many and Mexico sailed their cntire forensic strategy under the flag ofdiplomatic protcction.

8. In tcrms of legal characterization, the reference to diplomatic pro-tection is misconccivcd. Traditionally, diplomatic protection is essentiallyan institution of gencral or customary international law:"It is an elcrnentary principle of international law that a Slate is

entitled to protect its subjects, when injured by acts contrary tointernational law committed by another State, From whom they havebeen unable to obtain satidaction through the ordinary channels. Bytaking up the case o f onc of its subjects and by resorting to diplo-matic action or international judicial proceedings on his behalf, aState is in reality asserting its own rights- ts right to ensure, in thepcrson of its subjects, respect for the rules of international law."(Mavrommu i s Pcrlesrine C u n c ~ / . ~ = ~ ~ u n s ,udgmenl No. 2, 1924,P .C . I . J . , Scries A , No. 2, p. 12.)

9. In other words, the protcction consists in the sight of a Stateto bring an international claim against another S t a k when one of itsnationals has been injured by an internationally wrongful act. Inlight of the terms used by the Permanent Court of international Justice,therc is one clear conclusion: diplomatic protection is a right belongingto thc Statc. Hence, in matters concerning the protection of individualrights of nationals, the question is whether there is a place for diplo-matic protection.10. From a purely practical standpoint, rcliance on the notion of dip-lomatic protection and the rule of the exhaustion of local remedies mayhavc perverse effects: the procedural default rule can makc compliancewith the procedural obligation to exhaust local remedies a rutilc exercise;no one has yet found a w a y of bringing an executed prisoner back to life.11. On a theoretical level, rcading thc provisions of the Vienna Con-vention in conjunction with t h c reasoning in the LuCrcltzcl Judgmentprompts the following observations: first, the 1463 Convention enumer-ates the rights that it secks to protect for the purpose of facilitating theexercise of the consular funclion, for the benefit both of the sending Stateand of its nationals; secondly, thc LuGrund Judgment describes the com-ponents of the consular protection system as being interrelated (I.C.J .Reports 2001, p. 442, para. 74); and lastly, according to paragraph 77 ofthat Judgment :

" the Court concludes that Article 36, paragraph I , creates individualrights, which, by virtue of Article 1 of the Optional Protocol, m ay beinvoked in this Court by thc national State of the detained person"(I.C.J. Reports 2001, p. 444, para. 77).

12. If I have understood thcm correctly, those propositions contem-plate the direct grant of individual rights but do not impose any prior


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condition for States seeking to invoke violations of the rights of theirnationals. Th u s , looking beyond thc scope of diplomatic protection andthe obligation to exhaust local remedies, Ihe qucstion to be determined isthe significance of the interrelationship between the components of theconsular protection system.13. The notion of intcrrclationship was used by the Court in 2001 tocharacterize the interdependence of the rights enumerated in Article 36,paragraph 1. The raison d'2tre or focus of that relationship is to seek tofacilitate cons ular protection. However, the ma nncr in which th e variousrights arc defined consists in stating their con tent a nd how they are t o beapportioned as between the sending Statc and the dctninee; in otherwords, the 1963 Convention sought to identify tlie holders of the rightstha t it created, with individual rights being those belonging to the detainednationals. In these circumstances, the interrelationship contemplated byihe 2001 Judgmen t concerns neither the nature n or the scope of thc righisin question; i t pcrtains to the effective implementation of the protectionsystem. The effective exercise by a State of its right to provide for theprotection of its nationals, who dcrivc their rights from Article 36, para-graph 1 ( h ) , is only possible if the detained national docs not rcfusc suchan initiative. T h e discrc~ionary ower of the sending State is thus con-fined to a right of initiative to aciivate thc protection mechanism. Andthat right of initiative effectively arises "as soon as it is realized that theperson is a foreign national, or once there are grounds lo think that theperson is probably a roreign national" (Judgment, para. 88).

(Signed) Raymond RANSEVA.


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SEPARATE OPINlON OF JUDGE VERESHCHETIN

TWO e u d ~ qf lhr Mexican claims - r w t m e n f by he Court of the rule ofexh~u.stionof local remedies - Mixed" claims in the jurisprudeirce of heCvur nnd in the ILU Drajt A~r6icde.f n Diplornotic Protection - ea.~onsorthe application of ')rrpnndernnce" srundurd and fo r non-application nj'ihe locriiremedies reguir~menr n rhe speciul uircurnslnnces of t11e case.1 voted in favour of th e Judgment. However, I should like to put onrecord my disagreement with that part of the Court's reasoning where itdeals with the issues concerning the law of diplomatic protection and therelated rule of the exhaustion of local remedies (paragraph 40 of theJ u d ~ m e n t ) .1. In the present case, Mexico has requested the Court to adjudge a nddeclare that the United Slates "violated its international legal obligationto Mexico in i t s owa righl und in rhe exercise oJ i ts right l o diplornuticprotection ofi1.7 natinnuls" (emphasis added). The United S tates contendsthat Mcxico's claims are inadmissible because in all the individual casesrcfcrrcd to by Mexico local: remedies remain available and therefore theright of diplomatic protection o n behalf of any Mexican national cannotbe exercised beforc this Court. I n deciding this dispute, t h c Court , inorder to show that th e rulc of exhaustion of local remedics cannot pre-clude the admissibility of the Mexican claims, has resortcd to reasoningwhich, in my view, amo unts to a highly problematic new legal proposi-tion in respect of the taw of diplomatic protection.2. The Court, without denying the obvious fact that Mexico broughtits claims under two heads, namely direct injury lo the State and inth e exercise of its right of diplomatic prolcction of its nationals, andhaving also noted that the individual rights of the Mexican nationalsare rights "which are to bc asserted, a t any rate in the first place, withinthe domestic legal system of the United Statcs", thereafter makes anunexpected U -turn and states that, "in the special circumstances of intcr-dependence of the rights or the Sta te an d of individual rights" under th e

Vienna Convention, Mexico may, prior to the exhaustion of localremedies,"request the Court to rule on the violation of rights which it claimsto have suffered both directly and lhrtlugh the violations of the indi-


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viduul righds, confirred on Mexican na l i onu l~ under Article 36,paragraph I (b) [of the Vienna Conventio~~]"emphasis added).

The Court further specifically observes that in the present case the dutyto exhaust local remedies does not apply and that the Court docs nothave to deal with the Mexican claim of violations "undcr a distinct head-ing of diplomatic protection".3 . In support of its argument regarding the "special circumstances ofintcrdepeiidence of the rights oC the State and individual rights" underthe Vienna C onvention, thc Co urt relies ( a ) on the finding in th e LaCrundcase that "Article 36 , paragraph 1, creates individual rights [for th e

national concerned], which . . . may be invoked in this Court by thcnational Slate of the detained person" (LuGrand (Gemzurzy v . UniredStates of'America) , Judg~aent , . C.J. Reports 2001, p. 494, para. 77), an d(b ) o n its statemenl that "violations of the rights o f the individual underArticle 36 may entail violations of thc rights of the sending State, andthat violations of the rights or the latter m ay entail a violation of therights of the individual".4. The Court, however, fails lo recall that in the LuGrand case, inwhich Germany also brought its claims under thc two heads, the Courtdoes not say lhal in invoking individual rights of its nationals the Stalemay avoid the rule of exhaustion of locai remedies or, for that matter,lhat in case of such invocation th c claims fall outside the scope of the lawof diplomatic protection. As to th e Court's statement that violations ofthe rights of the individual may entail violations of Ihc rights of the Stateand vice versa, this cir~ulareasoning can bc assessed in the light of Ih ejurisprudence of the Court on diplomatic protection and of the work ofthe International Law Commission (ILC), which recently tbrmulatedDra ft Articles o n Diplom atic Protection. U nfortunately, neither o f theseis even mentioned in th e Judment .

5 . T o use the terminology of thc ILC, Mexico has brough t a so-called"mixed" claim alleging both direct injury to the St ate an d indirect injuryto E ~ Came State through the wrong done to its nationals. In its Com-mentary to Article 9 [ l 11 of t h e said Draft the LLC, basing itself onseveral judgments of this Co urt dealing with diplom atic protection casesand related issues of the exhaustion of local remedies (In!erhurzdd>Pre-liminary Objections, Judgment, I . C. . Reporrs 1959; Uniied S~ ut es iplo-mutic and Consular Sluff in Tehran, Judgment, I. C . J . Reports 1980;Ellerrronica Siculu S.p.A. ( E L SI ) , Judgmerar, I. C .J. Reporis 198P), staled :

"In the case of a mixed claiin it is incumbent upon the tribunal toexamine the different elements of th e claim and to decidc whetherthe direct or the ind i rect c leme~~ts preponderant . . . If a claim ispreponderantly bascd on injury to a national this is evidence of thefact that the claim would not have been brought but for the injury to


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81 AVENA AND OTHERS (SEP. OP."VEKESHCHETIN)the national . . . The principal factors to be considered in makingthis assessment are the subject of the dispute, the nature of the claimand the remedy claimed." (United Nations, Report of the Interna-tional t a w Com mission, Fifty-fifth Session (5 May-6 June an d 7 July-8 August 2003), OJjcial R e c o r h of the Generul Assenahly, Fiftr-eighth Session, SuppIemenr No. 10 (A/58/10), pp. 90-9 1 .)

Article 9 [l 11, to which the above-cited Commentary refers, reads as fol-lows :"Local remedies shall be exhausted where an international claim,or request for a declaratory judgment related to the claim, is brough t

preponderantly on the basis of an injury to a national or otherpcrson referred to in article 7 (83." [Article 7 [R] deals with statelesspersons and refugees.] (Ibid. ,p. 89.)It should be noted that the cited A rticle of the ILC Draft does not makeany exception For treaty-based claims.6. As was just m entioned, thc ILC was guided by the jurisprudenc e ofthe International Court of Justice. The ELSI Chamber rejected a UnitedStates argument that the exhaustion of local remedies did not apply asregards treaty-based da im s where the treaty in question was silent as towhether such rule applied. While the C ham bcr recognized th at thc partiesto a treaty can explicitly agree that the local remedies rule shall or shatl.not apply to claims based on that treaty, such "an important principle of. 'custom ary inicrnational law" would n o t bc held to have been "tacitly dis-pensed with, in the absence of any words making clear an intention to doso" (Elcllroniou Sicula S.p.A. ( E L S I ) , Judgment, I. C.J . Repor t s 1989,p. 42, para. SO). Thus, the Chamber stated that, as regards treaty-based

: claims, Iocal remedies must be exhausted prior to the institution of anintern ation al claim unless there is explicit language t o the contra ry. Jn thesame case, the Chamber refused to separate th e claim 'for direct injuryalleged by the United States From the diplomatic protection claim basedo n injury to the U nited States nationals. The Cha mb er thus determinedt ha t where the samc factual basis exists for claims based both on directinjury t o a State and indircct injury throu gh a n ational of tha t S tate, local. remedies must be exhausted when the claims are preponderantly basedupon the injury to the national of the Slate.

7. In the case before the C ou rt now, we arc Fdced with a similar situa-tion: the factual basis for both elcments of Mexico's claim is the same;the remedies sought focus on injuries to the nationals concerned. T o usethe "preponderance" stan dar d, referred to above, the claim would no thave been brought before the Court but for Mexico's desire to protectspecific nationals. This clear1y shows that the mixcd Mexican claim is


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82 AVENA AND OTI.IERS (SEP. OP. VERESI-ICHE'TIN)preponderantly a diploma tic protection claim, in which Mex ico espousesbefore the Court the claims of its nationals. Direct injury to Mexicocould a rise only after the violations of th e rights of its nationals prov idedfor in Article 36, paragraph 1 ( b ) , of thc Vienna Convention.

8. In effect, such a finding is corroborated by thc Judgment's overallreasoning. Thus, the Court invokes the violations of the rights of Mcxi-can nationals not merely as evidence of the violations of the rights ofMexico as a State. I1 scrupulously examines and identifies Ih e concreteviolations of thc rights of Mexican nationals in each and every one of50-plus individual cases brought by Mexico unde r the head of diplomaticprotection. The Court identifies by name the specific individuals and thespecific injuries caused to them (see, for example, paragraph 106 of th eJudgment).9. And yet, a t the very beginning of this exercise, the Cou rt states thatit is not dealing with th e Mexican claims as a diplomatic protection easeand that thc rule of exhaustion of local remedies does not apply to theMexican request because of the special circumstances of interdependenceof the rights of thc S tate an d of individual rights un der thc Vienna Con-vention.10. 1 share thc view of the majority that Mexico's claims are admis-sible and that the duty to exhaust local remedies docs not apply to thiscase. Howcver, my perception of the nature of the "special circum-stances" in issue is quite different from that expounded in paragraph 40of the Judgmcnt. In my view, th e special circumstance s tha t , for the pur-poses of this J u d p e n t , exempt this particular case f rom the localremedies requirement d o not lie in thc special character of Article 36 o fthe Vienna Convention, but rather in the particular factual circumstancesof the specific case before the C ou rt, as will be explained further below.Contrary to what the Court says in paragraph 40 of the Judgment, in

invoking thc rights of individuals under the Vienna Convention beforcthis Court, t h c State, as u ~nerui ule, is not exempt from the duty toexhaust local remedies, subject to certain exceptions as those specified inArticle 10 [14] of the ILC Draft . As the ELSI Chamber observed withregard lo this rule, such "an important principle of customary interna-tional law" would not be held to have been "tacitly dispensed with, in th eabsence of any words making clear an intention to do so" (ElcltroniuuSiculu S.p. A. (ELS I ) , Judgment, I . C.J. R ~ p u r f s 989, p. 42, para. 50).1 1 . The individual rights of Mexican nationals under paragraph 1 ( h )of Article 36 of the Vienna Convention are, indeed, rights "which are to

be asserted, at any ratc in th e first place, within the dom estic lcgal systemof the United States" (para. 40 of the Judgment). In principle, only whentha t process i s completed an d the remedies for the violations arc finallyunavailable, couId Mexico lake up the case in the form of a n espousal ofindividual claims bcfbre this Court. However. the LaGrand case showed


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83 AVENA AND Q'lLHERS (SEP. OF'. VERESHCHETI N)that the wide range of possible local remedies in criminal justice pro-cedures in the United S tates tend to be exhausted only a short time beforethe execution of individuals under sentence of death. In consequence,there is a risk that applications based on diplomatic protection withregard to such individuals will be filed with this Court in circumstanceswhere the latter would be unable usefully to address them.

12. i n rhe ~peciu l ircumsiances oJ rhe presenf case, at the time whenth e Application was fled, all the Mexican nationals concerned werealready on death row and therefore human lives were at stake. In thesecircurnstanccs, to dem and t ha t all thc local remedies for the alleged viola-tion o f Article 36, paragraph 1 , should have been completely exhaustedbefore Mexico could exercise its right of diplomatic protection of thesenationals could lcad to the absurd result of this Cou rt having to rule a t apoint in time when its ruling could have no practical cffect, That is why,exactly because most of the cases in question had not yet reached thefinal stage in the U nited States criminal proceedings, and in the hope thatthis Court would clarify the matter from the standpoint of internationallaw, Mexico could bring its claims both in its own right and in the exer-cise of its right of diplomatic protection of its nationals.

13. To conclude, the Court should have applied the "preponderance"stand ard lo the "mixed" Mexican claims brought under the heads both ofMexico's own rights and of its right of diplomatic protection of itsnationals, t h u s rem ain ~n g onsistent with its former jurisprudence on thelaw of diplomatic protection. Having found that the claims were essen-tially thos e oKdiplomatic protection, thc Cou rt should havc herd that therule of exhaustion of local remedies was inapplicable not becauseArticle 36 of the Vienna Convention on Consular Relations impliedlydiffers in kind from other treaty provisions creating rights of individuals,but rather because of th e very special cirt..umstances of t h e case at hand ,as explained abovc.

(Signed) Yladlen S. VEKESHCHETIN.


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SEPARATE OPINION OF J U D G E PARKA-ARANGUREN

The C O ~ . W I I [ of lhe Unilud Stales nol to ruise prel~rnirtary objeclion s -Mextcn did not discharge i l Y burden of proving the M P - Y ~ C U Hui ionnl i ty o j ~ h c52 persons illdicated In it.$ Me~noria l- Mu l~ rp le ~ui i i~ t tu l i i yases - Tlteexhaustion 14r)cul retnpdias rule - hl~goli i ln o rcj11y to ull thc questlnns rrsslated hy Mesicu in it s $nrrl cubnlissions- inal consideror ions.1 . M y vote in favour of subparag raphs (2), (3), (10) an d ( I 1) of para-graph 153does not mean that I share each and every p art of the reason-ing followed by the C ou rt in reaching its conclusions. Time cons traints topresent this sep arate opinion w ithin th e period fixed by the C o u r t d o n otpermit me to make a complete explanation of my disagreement with the

remaining subpara graphs of paragrap h 153. However 1 wish to advancesome of my main reasons For voting against them.

2. Operative paragraph 153 ( 1 ) of the Judgment:"Rejects the objection by the United Mexican Statcs to theadmissibility of the objcctiotls presented by the United States o fAmerica to t h c jurisdiction of the Co urt a nd lo the admissibility ofthe M exican claims."

3. I11 my opinion, the contention of thc United Mexican States (here-inafter 'Mexico ") should have bcen upheld, bccause the Partics agreed t oa single r o u n d of pleadings and nothing was said aboul preliminaryobjections. The United States of America (hereinafter "the Unitcd States")thus gave i t s c o n s c ~ ~ tot to raise preliminary objections, and conse-quently its objectians were n o t to be examined as such . This reasonexplains m y vote against paragraph 153, subparagraph ( I ) , where theCourt rejects Mexico's contention that it should disregard the prelimi-nary ob jections raised by the Un itcd St ate s again st Mexico's claims basedon violations by th e United States of Article 36 of the 24 April 1963Vienna Convention on Consular Rclations (hereinafter "the ViennaConvention").

4. How ever, it is to be kept in mind that in any case t hc C our t has t obe satisfied of its jurisdiction and therefore the Court may examine it a ta n y time, bcfore ren dering judgme nt on the m erits, either ex officio or a tthe requcst of any of the parties (Appeal Rrlufing lo the Jzrrisclicfion of


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the ICAO Council (India v . Pakis tan) , Judgmenl, I .C.J. Reports 1972,p. 52 , para. 13; Application of th e Convention on the Prevention and Pun-isllmeat of ihe Crinze of Genocide, Prclirnirzuiy Ubjeclions, J u b m e n ,I. C.J. Reports 1996 ( I I ) , p. 622, para. 46). Furthermore, as Mexicoacknowledges, the inadmissibility objections presented by the UnitedStates as preliminary objections "overlap the arguments on the merits toa large extent" (C R 2003124, p. 23, 'para. 59, Garnez-Robledo).

5. Th e first of Mexico's final submissions requests the Co urt t o adju dg ean d declare, in fer ulia, that the Un itcd States has '"violated its int ern a-tional legal obligations t o M exico, in i ts own righl and in the exercise ofits right of diplomatic protection of its nationals" by failing to complywith Article 36, paragraph 1, of th e Vicnna Convention (Judgment,para . 13; mphasis added). It also indicates tha t the Co urt need no t "rc-examine and redetermine the facts and reweigh the evidence" in each ofthe 52 cases, because there a re only two factual issues lo be resolved. T h efirst relates to the Mexican nationality of the individuals concerned andthe second to the violalions of Article 36, paragraph 1 (h ) (CR 2003124,p, 7, para. 83 , Babcock).

6. Mexico expressly acknowIedges that, since the United States "haschosen to vehemently deny an y wrongdoing". it is for Mexico to demon-stra te in all 52 cases the alleged violations of Article 36 , paragraph 1 (b),of th e Vienna Convention (CR2003124, pp. 29-30, para. 94, Babcock);and it claims i t has mct this burden by providing lo the Cou r t the birthcertificatesof these individuals, and declarations from 42 of them statingtheir Mexican nationality.

7. Mexico maintained in the oral proceedings that all of them auto-matically acquired jure soli Mexican nationality under Article 30 of itsConstitution. However Mexico did not present a n y evidence to demon-strate the contents of such A rticle 30.8. I t was for Mexico lo discharge this burden of proof because, asJudge John E. Read recalled, "municipal Iaws arc merely facts whichexpress the wilI a nd constitute: the activities of States" indicating that thisruIe had been established by the Permanent Court or InternationalJustice in a long scries of decisions and the following in particular:

"Poli.l-h Upper Sil~.~ia- eries A, No. 7, page 19.Serbian Loans - eries A, Nos. 20121, page 46.Brazilidn Lman.r- eries A , Nos. 0121, page 124.Lighlhouses Cuse (FrancelGreece)- eries A/B, No. 2, page 22.


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Puaevezys-Sal&!iskis Railway Cuse - Series AIB, No. 76,page 19." (Nutrebohm, Second Pha,~e , udgment, I C .J. R~por l s1955, p. 35, dissenting opinion of Judge Read.)

9. Moreover it is a generally accepted principle. Opyenheinl's Interna-tional Law explains:"From the standpoint of international law, a national law is gen-erally regarded as a fact with reference to which rules of interna-tional iaw have to be applied, rather than as a rule to be applied onthe internationa l plane as a rule of law; and insofar as the Interna-tional Co urt of Justice is called upon to express an opinion a s to thceffect of a rule of national law it will d o so by treating the m atter asa question of fact to be established as such rather than as a questionof law to be decided by the court." (Oppenheim's l n l ~ r n a t i o n a l aw,4th e d . , edited by Sir Robert Jennings, Q.C., and Sir Arth ur W atts,K.C.M.G., Q . C . , Vol. 1 , "Peace", Introduction and Part 1 , 1996,p.83, para. 2 1 .)

10. T his notwithstanding, paragraph 57 of thc Judgment states:"The Court finds tha t it is for M exico to show th at the 52 personslisted in para grap h 1 6 abo ve held M exican nationality a t the time al'their arrest. The Court notes that to this end Mexico has produced

birth certificates and declarations of nationality, whose contentshave nol bcen challenged by the United Slates."11. Et is difficult for m e to agree with this conclusion bccause Mexicohas not discharged it s burden of proof. Th e declarations from 42 of allthe persons concerned are ex par& documents, which cannot, by t hem-selves, demonstrate Mexican nationality; and th c birth certificates pre-sented by Mexico for each of the 52 individuals undoubtedly demonstratethat they were born in Mexico, but do not prove their Mexican nation-ality because Mexico did not provide the text of Article 30 of the M exi-

can Constitution. In view of this omission it cannot be established, fromthc evidence presented by Mexico, that the 52 pErSOnS identified in it sMemorial automalicalIy acquired M ~ x ic a n ationality a t the time o r heirbirth by virtue of thc jus sola'. For this reason, unless I were to rely onextralegal considerations, as thc Judgm ent itself does, I had n o alterna-tive but to conclude that the claims presented by Mcxico against theUnited States cannot be upheld since the Mexican nationality of the 52persons concerned was not demonstrated and this is, in the present case,a necessary condition for the application of Article 36 of' the Vienna Con -venlion and for Mcxico's exercise of its right to diplomatic protection ofits nationals. Therefore, in m y opinion, subparagraphs (41, ( 5 ) , (61, 7),(8) and (9 ) of paragraph 153 were lo be rejected.


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12. Among the persons identified in Mexico's Memorial, the UnitedStates provided proof that Enrique Zambrano was a United Statesnational. T h e n Mexico amended its submissions on 28 November 2003 towithdraw the claim presented in its ow n na m e and in exercise of its rightof diplomatic protection, explaining that it did not contest, for the pur-pose of this litigation, that dual nationals have no right to be advised,under Article 36, paragraph I ( B ) , of their rights lo consular notificationand access (CR2093124, p. 28, para. 87, Babcock). The withdrawal wasnot objected to by the United States, as indicated in paragraph 7 of theJudgment, and for this reason the case of Mr. Enrique Zambrano wasnot examined.13. Even though the question was not disputed between the Parties, itis to be observed that the reasons given by Mexico for withdrawal in thecase of M r. Enrique Zam brano find no su ppo rt in the conclusions reachedby the luternational Law Commission in its recently prepared DraftArticles on Diplom atic Protection. Article 6 thereof prescribes that

"A State of nationaiily m ay n ot exercise diplom atic protection inrespect of a person against a State of which that person is also anational unless the nationality of the former State is predominant,both a t the l ime of the injury and at th e date of the official presenla-tion of the claim."14. The lnternational Law Commission explains that the solutionado pted in Article 6 follows the position ado pted in arb itral decisions, inparticular by the Italian-United States ConciEiation Commission, theIran-U nited S tales Claims Tribu nal and the: United Nations Compensa-

tion Commission cstablished by the Security Council to p rovide for com-pensation for damages caused by Iraq's occupation of Kuwait. Morc-over, the International Law Commission indicates that it is consistentwith developments in international human rights law, which accords legalprotection to individuals even against a Slate of which they a re nationals.It also specifies that the negative language used in thc provision "isintended to show th at the circumstances envisaged by article 6 are to beregarded a s exceptionat", mak ing it clear "that the burden of proof is onthe claimant State to prove that its nationality is predominant" (UnitedNations, Report of the International Law Commission, Fifty-fourth Ses-sion (29 April-7 Jun e an d 22 July-16 August 2002), OSficial Records ofthe Genercrl Assembly, Fifir-seventh Session, Supplement No. 10 (A1571101, pp. 169-1873,

15. Therefore, Draft Article 6 would have entitled Mexico to exercise


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diplomatic protection on behalf of Enriquc Zambrano, upon presentingevidence that he was a Mexican national and that his Mexican ~zational-ily predominated his United S tates nation ality.

16. Paragraph 40 of Ihc Judgmen t exam ines the application or thc ruleof exhaustion of local remedies when dealing with the seco nd preliminaryobjection to admissibility presented by the United States.17. It indicates:

"The Court would first observe that the individual rights o f Mexi-can nationals under subparag raph 1 ( b ) of Article 36 of the ViennaConvention are rights which are to be asserted, at any rate in thefirst place, within the domestic legal system of the United States.Only when th at process is completed an d local remedies ar e exhaustedwould Mexico be entilled to espouse the individual claims of itsnationals lhrough the procedure of diplomatic protection."18. Paragraph 40 adds :

"In the present case Mexico does not, however, claim lo be actingsolely on th a t basis. 11 also asserts its own claims, basing Zhcm on theinjury which i t contends that it ho.v irself sujj>red>direcrly andrhro~igh r s naf ionai s ,as a result of th e violation by thc United Statesof the obl igat~o ns incumbent upan it under Article 36, para-graph 1 (a), ( h j and (c)."19. Then paragraph 40 recalls the LaGrund Judgmcnt, where it was

recognized that Article 36, paragraph 1 ( b ) , of the Vicnna Conveotioncreates individual rights of the foreign national concerned which may beinvoked in this Court by the national State of the detained person (I.C.J.R ~ PU T I S001, p. 444, para. 77). Paragraph 40 further observes"that violations of the rights of the individual under Article 36 mayentail a violation of the rights of the sending State, and lhai viola-tions of the rights of the latter may entail a violation of the rights ofthe individual. In these special circumstances of interdepcndcne ofthe rights of the Siatc and of individual rights, Mexico may, in sub-mitting a claim in its own narnc, request the Court to rule on th eviolation of rights which it claims to have suffered both directly a n dthrough the violation o f individual rights conferred on Mexicannationals undcr Article 36, paragraph 1 ( b ) "


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20. Paragraph 40 of the Judgment concludes :"The duty to exhaust local remedies does not apply to such arequest. Fur ther, for reasons just explained, the Cou rt do es not findil necessary l o deal with Mexico's claims ol'violatio n under a distinctheading of diplomatic protection. Without nceding to pronounce a tthis juncture on the issues raised by the procedural default rule, asexplained by Mexico in paragraph 39 above, the Court accordinglyfinds that the second objection by the United States to admissibilitycannot be upheld."

2 E . In my opinion, this conclusion ismisleading. Paragraph 40 shouldhave stated that the local remedies requirement does not apply when thc:injury is claimed to have been done directly to the rights of Mexico andnot th at it is not applicable to the claim made by Mexico in its own nam e.Now, the claims presented by Mexico in the exercise of' diplomatic pro-tection of its nationals are claims of Mexico in its own right, as wasacknow ledged in the well-known dictum of the 30 August 1924 Judgmento f the Pcrrnancnt Court of Tntcrnational Justice in the MuvromnquiisPalesfine Concessions case, where it was specified that

"By taking up the case of one of its subjects and by resorting todiploma tic action o r international judicial proceedings on his behalf,a State is in reality asserting its own rights - ts right to ensu re, inthc pcrson of its subjects, rcspcct for the: rules of nternational law."(Judgment No. 2, 1924, P. .I .J. , Series A, No. 2, p. 12.)22. This principle is generally accepted and has recently been repro-duced in Article 1, paragraph I . of the D raf t Articles on Diplomatic Pro-tection prepared by the Fnternational Law Commission, indicating that :

"Diplomatic protection consists of resort to diplomatic action orother means of peaceful settlement by a State adopting in its ow nright the cause of its national in respect of a n injury t o th at nationalarising from an internationally wrongful act of anothe r State,"23. Therefore, in the present case, the relevant element in decidingwhether local remedies had to be exhausted is whether Mexico wasdirectly injured by the actions of the United States. As the International

Law Commission explains"The exhaustion of local remedies rule applies only to cases inwhich the claimant Stale has been injured 'indirectly', t ha t is,through its national. It does not apply where the claimant State isdirectly injured by the wrongful act of another State, as here the


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of individual rights". Therefore, it was for the Court to determinewhether Mexico's claim was preponderantly based on injury to a nationaIand would not have been brought but Tor the injury to its national.

28. In my opinion, M exico would n ot have presented its claim againstthe United States but for the injury suffered by its nationals. Conse-quently the IocaI remedies rule applies to the claims "in its own right"submittcd by Mexico in its first final submission and therefore the C our tshould have examined each of the individual cases to determine whetherthe local remedies had been exhausted, which do not includc "approachto the executive For relief in the exercise of its discretionary powers . . .remedies as of grace or those whose 'purpose is to obtain a favour andnot to vindicate a right'". If th at was not case, the claims presented byMexico in the exercise of diplom atic pro tection of its nationals were ta bedismissed, unless covered by any of the customarily accepted exceptionsto the local remedies rule, taking into consideration Article 10 of th eDraft Articles on Diplomatic Protection prepared by thc InternationalLaw Commission (United Nations, Report of the International LawCom mission, Fifty-fifth Session (5 May-6 June and 7 July-8 August 2003),Oflcial Records of the General Assembly, Fgdy-eigh th Session, Supple-ment No. 10 (A/S8110), pp. 88, 92-102). Therefore, it is not possible forme to agree with the conclusion reached in paragraph 40 of the Judgment.

29. On 14 February 2002, the Court stated:"The Court would recall the well-established principle that 'it i sthe duty of the Co urt not only to reply to thc questions as stated inthe final submissions of the parties, but also to abstain from decidingpoints not included in those submissions' (Asylum, Judgment, I.C. .Reports 1950, p. 402). While the Court is thus not entitled to decideupon questions not asked OF it, the non ultrrr pet i tu rule nonethelesscannot preclude the Court from addressing certain legal points in itsreasoning." (Arres t Warrunf~ l fI April 2000 (Democ ra l i c Republicof the Congo v. Belgium), Judgment, I.C. . Reports 2002, pp. 18-19,para. 43.)

30. In m y opinion this statement supports the following observationson the Judgment in the present case.31. In its first final submission Mexico requests the C ou rt to adjudgeand declare:


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"That the Unitcd States of America, in arresting, detaining, try-ing, convicting, and sentencing the 52 Mexican nationals on deathrow described in Mexico's Memorial, violated its international legalobligations to Mcx ico, in its own right and in the exercise of itsright to diplomatic protection of its nationals, by failing to inform,without delay, the 52 Mexican nationals after their arrest of theirright to consular notification and acccss under Articlc 36 (1) ( b )of the Vienna Convention on Consular Relations, and by deprivingMexico of its right to provide consular protection and the 52 natio-nals' right to receive such p roleclion as M exico wouId provide und erArticle 36 ( I ) (a) and (c) of the Convention." (J~ldgmcnt,para. 14 (I).)

32. Subparagraphs (41, ( 5 ) , (6), (7) and (8) of paragraph 153, in arather sophisticated way, adjudge and declare that "the United Statesbreached the obligations incumbent upon il" under Article 36, para-graph 1 ( b ) (subparas. (4) an d (5)); that "lhc United States breached theobligations incu mb ent upon it under A rticle 35, paragraph 1 (a) and (c)of' Ihc Convention" [subpara. (6)); that "the United States . . . breachedthc obligations incumbent upon it under Article 36 , paragraph 1 (c) ofthe Convention" (subpara. (7)); an d that "the Unitcd States breached theobligations incumbent upon it under Article 36, para grap h 2, of the Con-vention" (subpara. (8)). However, that is not an answer to the first finalsubmission presented by Mexico, whcre Mexico asks the Court to adjudgeand declare that the United Statcs violated "its international legal obli-gations to Mexico, in its own right a n d in the: exercise of its right todiplomatic protection". Thererorc, in my opinion, the operative partof the Judgment should have responded ro the request made by Mexicoin its first final submission.33. In its second final submission M exico requests thc C ou rt to adjudgeand declare:

"That the obligation in Article 36 (1) of the Vienna Conventionrequires notification of consu lar rights and a reasonablc op portunityfor consular acccss before the competent authorities of the rcceiv-ing State take any action potentially detrimental to the foreignnational's rights." (Judgment, para. 14 (21.)34. In my opinion, th c sccond final submission of Mexico should hav ebeen expressly decided in the operative part of the Judgment and n o tonly considered in its rcasoning.


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35. Finally it seems appropriate to me to mention that Mexico hasinsistently requested re .s~i iu t io n inlegrum as a remcdy for the allegedviolations of Article 36 of the Vienna Convcntiw by the United Stales,because il considers t ha t depriving a Ibrei&m national facing crim inal pro-ceedings of the right to consular notification and assistance renders thoseproceedings fundamentally unfair (Judgment, para. 30). Mexico has alsoreminded the Court throughout the present proceedings of the facts ofth e LnCrmd case. However, it did not mention that in the LnCruncl casethe question of fair trial was not originally raised by the highest Stateorgans of Germany with their U nitcd States coun terparts, as is evidencedby the following docu men ts:( a ) Th e Germ an Minister of Justice wrote lo the United States AttorneyGencral on 27 January 1999 acknowledging that

"nor are there any doubts about the fact that the proceedingswere conducted under the Rule of Law - ttimately leading toimposition of the dea th penalties with final an d binding effect-before the courts of the State of Arizona and before the FedcralCourts" (Memorial of Germany, Vol. 11, Ann. 20, pp . 539-542).( h ) In his letter of 5 February 1999 to the former President of th e

United States, the German President, acting as Head of State, indi-cates that "[i]n no way d o I doubt the legitimacy of the convictionnor the fairness of the procedure before the courts of thc State ofArizona an d th e federal courts" (Memorial of Germany, Vol. 11,Ann. 14, pp. 509-512).(Signed) Gonzalo PARRA-ARANGUHN.


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SEPARATE OPINION O F J U D G E TOMKA

Diplomatic protection - istinciiun between rights of the Srare and indi-vlrdunl r i g h ~ s- nvocafion of indil~iduul ights h&re un iniurnutionnl court byStare of nutimalily - bjection based on nun-exhau.rtir~n j'lr ~c nl un edies .

Interpretalion of the obiignliom fop ruvid c infurmufivnunhr Arrirl~.6, puru-graph I (b).Obligation of cessation - Whether wrungful act is uf u cuntmuing nirfurr:-Panrlency of individuul cases before dom estic courts urid form of vepurutic)n notporrinent to ohilgatinn of c~ssa t ion .

1 . Having voted in favour of the operative part of this Judgment,I nonetheless wish lo clarify my position on certain points of lawmentioned in the Court's reasoning.

2. In bringing this case bcfbre the Court, Mexico seeks to assert itsown rights, which it claims to have bccn violated by the United States, aswell as its right to diplomatic protection of its 52 nationals, whose indi-vidual rights ar e also alleged to h a v e been violated by lhc Unilcd States.3. The United States raised two objections to the admissibility of thcMexican clai~ns ased on thc cxercise of diplomatic protection. The firstobjection, that which concerns us hcrc, was t h a t the Mexican claimshould bc held inadmissible by the Court on the ground that local

remedics had n o t been exhausted and were still available in the 52CdSCS.4. It would app ear from paragraph 40 of the Judgment th at th e Cour taccepts the United States objection to the admissibility of Mexico's claimbased on the exercise of its right of diplomatic protection. In that para-graph, the Co urt observes that"thc individual rights of M exican natio nals under paragraph 1 ( b ) ofArticle 36 of the Vienna Convention are rights which are to beasscrted, at any rate in th e first place, within the domcstic legalsystem o f the United States".

The Court concludes :"Only when that proccss is completed and local remedies areexhausted would Mexico be entitled to espouse th e individual


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AVENA AND OTHERS (SEP. Of'. 'I'OMKA) 95claims of i ts nationals through the procedure of diplomatic, p ro te ction."

In other words, Mexico's claim based on diplomatic protection could beregarded as inadmissible and the United States objection based on thefailure to exhaust local remedies might appear to have succeeded. TheCaurk nonetheless rejects the objection on a different gro und .5. The Court rejects the objection bccause such an objection does notapply to the claim submitted by Mexico in its ow n name (although Idoubt whether the United States objection was directed at Mexico's

craim in its ow n name).6 . In order lo be able to rule on the alleged violations by the UnitedStates of its obligations to Mcxican nationals under Article 36, para-graph 1, of the Vienna Convention, the Court relies on what is in myview a novel doclrinc, without citing any prior jurisprudence in supportthereof. The Court explains that, in thc special circumstances of inter-dependence of the rights of the State and of individual rights, the State (inthis case Mcxico) may, in submitting a claim in its ow n nam e, request theCourt to rule on the violation of rights which it claims to have sufferedboth directly and through the violation of individual rights conferred onits nationals under Article 36, paragraph I (b).7. In the prcsent casc, in my view, the C ou rt could o nly reach th e con-clusion that the individual rights of Mexican nationals had been violatedif it accepted Mexico's claim that lhal State was exercising its right todiplomatic protection. In order for a violation of individual rights (therights of individual nationals), to be established, such rights have to bepleaded befbrc an international c ourt. When the State invokes the rightsof its nationals, it acts in its own name a n their behalr, on account of thewrong done lo them: in other words, th at Sta te exercises diplomatic, pro -tcction. Mexico's main reason tb r bringing the case before the Co ur t was

thc allcgcd wrong donc to its nationals. It is its nationals - nd theirfate- ith which M exico is primarily conc erned . In ord er t o give thema final chance within the United Sta tes judicial system, it w as vital toestablish violations by the United States of its obligations to Mcxicannationals under the Vienna Convention, and the resullant injury to them.In my view, it is the violation of thc rights of an individual an d the wrongdone to that individual, rathcr than the violation of a right of Mexicoand the resultant injury to tha t State, tha t may have a certain role to playin th c context of criminal proceedings in the United States.8. If this case is viewed in the contcxt of diplomatic protection,we cannot simply ignorc thc United States objection that th e Mexicannationals have railed ro exhaust local remedies.9. Faced with this argument on the part o f thc Un ited Stares, Mexico


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maintains that the majority of the Mexican nationals concerned did fileappeals in the United States, unsuccessfully. I t adds tha t , in any evcnt,the doctrine of procedural default prevented most of them from assertingtheir claims, since lhc matters on which they relied had not been sub-mitted at an earlier stage of the proceedings - recisely because theAmerican authorities had failed to inform those concerned of theirrights, as they had an obligation to do undcr Article 36, paragraph 1.As for their other nationals, Mexico claims that the United States pre-sented the obligation to exhaust local remedies incorrectly by implyingthat it i s a n absolute rulc. Mcxico relies on the separate op inion of JudgeTanaka in the Barcelona Tracrcon case, according lo which: "Thc rule

does not seem to require from those co ncerned a clearly futile and poinl-less activity, or a repetition of what has been done in vain." (BarcelonaTrac ion, Lighl and Power Crjnapuny, Limiludl, Secund P l l a~ e , udgmenl,I.C.J . Reporis 1970, p. 145.) According lo Mcxico, a foreign nationalseeking a judicial remedy on the ground of a breach of Article 36 wouldnever succeed in the United States, since the United States courts holdeither that Article 36 does not create an individual right, or that a foreignnational who has bccn dcnicd his Article 36 rights but given his consti-tutional and statutory rights, cannot establish prejudice and thererorecannot gel relief. Mexico further contends that the rule of exhaustion oflocal remedies is restriclcd to judicial remedies, and that the admissibilityof an application to the Court i s not subject to the precondition ofexhausting clemency procedures.

10. The International Law Commission, which is currently prep aringdraft artide s on diplomatic protection, has framed four exceptions lo thclocal remedies rule. Only the first of these concerns us here. Under thisexception, there is no need to exhaust local remedies when they provideno reasonable possibility of effective redress. It is fo r t h c claimanl loprove"that in the circumt;tanccs of th c case, and having regard to the legalsystem of th e respondent Statc, Ihere is no reasonable possibility ofan effcctivc rcdress" (Re port of the lnternational Law Commission,2003, United Nations doc. AESVlO, p. 93, para. 3 ) .

11. Mexico claims that no single court in the United States has evergranted a judicial remedy for a violation of Article 36 of lhc Vicnna Con -vention.12. Although the United S lates ma intains that almost all of the 52 casespul in issue by Mexico before the Court (save for three, leaving 49)remairi pending, n ~ a n yof them n o t yet having gone beyond the firstdirect appeal or the conviction, it has on the other hand failed to refutcMexico's criticism of the praclicc of thc United States courts of con-


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A V E N A A N D OTHERS (SEP. OP. TOMKA) 97sislenlly refusing any form of relief for the violation of an obligationunder Article 36 of the Vienna Convention.

13. It would thus have been possible for the Court to conclude thatMexico h as show n tha t the condition of ex haustion of local remedies didnot apply in the present case to its claim under the head of diplomatic .protection.

11. INTERPRETATIONATIONE EMPORISF THE OBLIGATIONp INFORMUNDER ARTI CLE6, PAKAGKAPH( b )

14. I have misgivings as to the interpretation by th c Cour t ofArticle 36 , paragraph 1 (6). According to that interpretation, which isset out in paragraph 63 of the Judgment, the obligation under this sub-paragraph to provide information to the individual arises only oncc i tis realized by the arresting authoritics that the person is a foreignnational, or once there are grounds to think that pcrson is probably aforeign national.I consider that this interpretaiion is not well founded. Were such a napproach to the interpretation of the norms of international la w to beapplied more widely, there is a danger that it might weaken the protec-tion accorded to certain subjects (for example, children) under the pro-cedures for safeguarding human rights or under international hurn anitar-ian law.15. The obligation laid on the receiving State by Article 36 of theVienna Convcnlion does not depend on the authorities of the said Stateknow ing tha t the person arrested is a foreigner. Th e obligation to provideinformation arises as soon as a forcigncr is detained. Such a n arrest con-stitutes an o bjective fact sufficient in itself to ac tivate the receiving State'sobligation.16. Knowledge of th e facts plays no role, either in respect of theexistence o r app licability of the obligation to providc inrormation underArticle 36, paragraph 1 ( b ) , or in respect of the violation of that obliga-lion. Ignora nce is no t a circumstance psccluding w rongfulness. Ignorantianon excusai. The State autho rities must show due diligence in the exerciseof their powers, and lhcrc is nothing to prevent them from makingenquiry, as soon as the arrest is made, in regard to the nationality ofthe person detained. If that person claims to be a national of the countryin which he has been arrested, he can no longer rely on the fact that hewas not informed of his rights under Article 36, paragraph 1, of theVienna Convention. Informing a person in custody that the ViennaConv ention accords him certain rights if he is a national of another S tateis undoubtedly the best way of avoiding any breach td' the obligationsincumbent upon the authoritics of the receiving State under Article 36

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of the Convention. But those authorities cannot justify their omissionsby relying on their own mistakes or errors of judgment.

17. The Court states that it cannot uphold Mexico's claim requiringthc United States to cease its violations o r Article 36 of the Vienna Con-vention with regard to Mexico and its 52 nationals, since Mexico has notestablished that the violations by the United States of its obligationsundcr Article 36 are conlinuing (Judgment, pa ra. 148).18. I share the Court's conclusion here. Yet the Court adds a furtherclement, observ ing:

"inasmuch as these 52 individual cases are at various stages of crimi-nal proceedings before th e U nited States courts, they ar e in the stateof pendente Izle; and the Court has already indicated in respect ofthem what it regards as the appropriate remedy, namely review andreconsideration by reference to the breach of the Vienna Conven-tion".19. 1 consider that the [.act that individual eases are still pendingbefore the United States courts is not pertinent to the obligation of cessa-tion. It is the continu ing na ture o r otherwise of the violation which deter-mines whether the obligation of cessation exists. T h e Court can onlyorder the cessation of a wrongful act if tha t act continues.20. The reference to the fact that the cases are still pcnding beforedomestic courts might cause confusion by giving the impression thatMexico's claim requiring cessatioi~ annot be upheld by the Court becausethe failure to exhaust local remedies in the Unitcd Stares either makes theclaim premature, and hencc inadmissible, or clsc precludes the Court

from finding that the obligation concerned has already been violated. Yetthis second hypothesis must clearly be rejected, since the Court, in lhesame paragra ph 148, confirms tha t w h a t constitutes the appropriateremedy is review and reconsideration by reference to th c breach oft h c Vienna Convention (a breach which lirst has to be established).2 1 . By the same loken, the naturc of' the appropriate remedy (or formof reparation) is not pertinent to th e obligation of cessation.


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avena and other mexican nationals (mexico v. united states of america) - judgment of 31 march 2004

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