VENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES OF AMERICA) PDF

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VENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES OF AMERICA)...

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AVENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES OF AMERICA)1 On January 9 2003, Mexico filed its application before the International Court of Justice instituting proceedings against the United States of America for violations of the Vienna Convention on Consular Relations 1963. Mexico based the jurisdiction of the Court on Article 36(1) of the Statute of the International Court of Justice which provides that: ‘the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties or conventions in force’2 and on Article 1 of the Optional Protocol to the Vienna Convention providing for the jurisdiction of the Court over 'disputes arising out of the interpretation or application of the Convention’.3 Mexico and the United States are both parties to the Vienna Convention and the Optional Protocol, and have been at all relevant times. In respect to the treatment of 52 Mexican nationals who were prosecuted, convicted, and sentenced to death in the United States, Mexico argued that the United States had violated Article 36 of the Vienna Convention. Article 36(1) provides a number of consular rights for nationals of one country (the sending state) who are arrested in another country (the receiving state).4 These rights include- (1) the right of consular officials and arrested or otherwise detained nationals of the sending state to communicate freely with each other while in the receiving state; (2) the rights of consular officials to be notified without delay of requests for assistance by arrested or detained nationals, to visit, converse, and correspond with arrested or detained nationals, and to aid such nationals in securing legal counsel; and (3) the right of arrested or detained nationals to be notified of their consular rights as provided under Article 36.5 Furthermore, the use of domestic laws and regulations to obstruct the enjoyment of the rights guaranteed in the provision is prohibited by Article 36(2). 6 Before proceeding to examine the arguments set forth by Mexico, the ICJ referred to its own judgement in the 2001 LaGrand case,7 wherein the Court described Article 36 as ‘an interrelated regime designed to facilitate the implementation of the system of consular protection.’8 In the LaGrand decision, the ICJ recognized that the failure of the receiving state to quickly notify both the arrested or detained national of his Article 36 rights and his respective consular

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2004 ICJ Rep. 128, 43 ILM 581 (2004) Statute of the International Court of Justice, Article 36(1) 3 Optional Protocol concerning the Compulsory Settlement of Disputes 1963, Article 1 4 Vienna Convention on Consular Relations 1963, Article 36 5 Vienna Convention on Consular Relations 1963, Article 36(1) (a)-(c) 6 Michael R Steinmark, 'The Case concerning Avena and Other Mexican Nationals (Mexico v. United States): A Mexican Perspective on the Fight for Consular Rights' (2004) 10 Law & Bus Rev Am 417 7 LaGrand Case (Germany v. United States), 2001 ICJ Rep. 466, 40 ILM 1069 (2001) 8 Judgment, para 50 and ICJ Reports 2001, p 492, para 74. 2

officials of the arrest or detention would count as a violation of the Vienna Convention because those who are unaware of their rights are unable to exercise them. A combination of substantive and procedural features of Article 36, and their application in the ICJ’s decision in the LaGrand case formed the foundation for Mexico's initiation of proceedings in the Avena case.9 Mexico was concerned that if its citizens face criminal prosecution in the United States, particularly in cases involving the death penalty, their incapacity to use their consular rights simply because they are unaware of their existence might have serious consequences. In their arguments, Mexico claimed that in at least forty-nine of the fifty-four capital punishment cases addressed in Avena, the United States had made no attempt to comply with procedural obligations for notifying the arrestee in a timely manner as per the requirements of Article 36 or to inform the Mexican consular officials as per LaGrand.10 Such procedural failures in the United States could easily be translated into the substantive denial of consular rights in the death sentence cases. Clearly, this denial of consular rights can sometimes be the deciding factor in the application of the death penalty because of the view that certain problems caused by incompetent legal representation, lack of communication between Mexican nationals and their defence counsels and various other cultural obstacles can be solved or attempted to be solved with the help of appropriate consular assistance. The goal of consular involvement is to ensure that detained foreign nationals are treated humanely and that their proceedings are heard in a fair manner providing them an equal opportunity to defend themselves. Due to ignorance or a lack of knowledge, a foreign national may be unaware of both the practices of the local authorities as well as the criminal proceedings that take place in a foreign state, may not be able to communicate in the local language, and may be unable to take advantage of safeguards established for criminal justice. Foreign citizens may be treated unfairly based on their country of origin or, in the absence of obvious discrimination, in ways that ignore cultural distinctions that are relevant to judging their conduct in certain situations. A consul may be able to provide the help a foreign national needs in another country in order to defend himself more effectively by advising them and making them aware of their rights in a way that is more comprehensible than what is offered by a local counsel. In situations where a co-national is being treated unfairly, a consul may also be able to provide him better aid by approaching the authorities of the receiving state. It is a widely noted observation by several Mexican Foreign Ministry lawyers that without consular assistance, Mexican nationals are frequently left with no choice but to be represented by inexperienced public defenders who are unable to communicate with their clients due to a 9 Application Instituting Proceedings, Avena and Other Mexican Nationals (Mex. v. U.S.), 2003 I.C.J. Pleadings 128, at 2-6, 40-43 10 Michael R Steinmark, 'The Case concerning Avena and Other Mexican Nationals (Mexico v. United States): A Mexican Perspective on the Fight for Consular Rights' (2004) 10 Law & Bus Rev Am 417

language barrier eventually leading to an unfair trial, whereas Mexican nationals having consular assistance during legal proceedings are represented by experienced, Spanish-speaking counsel, destroying the language barrier.11 For Mexican nationals who receive consular assistance, this discrepancy translates into more equitable trials. On its face, denying consular services to Mexican nationals facing trial in the United States is problematic since it may lead to Mexican individuals being given a capital punishment based on procedural or representational faults rather than actual guilt. For example, after a post-trial investigation revealed both his innocence and the possibility of police and prosecutorial misconduct, a Mexican national on death row in Texas was spared execution.12 Mexico's worry stems from the unknown number of Mexican citizens killed in the United States as a result of undiscovered errors that may have been prevented if Mexican individuals had exercised their consular rights. Apart from the empirical and real repercussions of an unlawfully issued death sentence, Mexico's criticism of the United States' failure to adhere to the obligations of the Vienna Convention is based on a number of inherent legal aspects as well. In essence, Mexican law grants jurisdiction to its courts over Mexican citizens for all criminal acts committed within the physical territory or abroad.13 Moreover, extradition of Mexican citizens is expressly prohibited under the Mexican Constitution.14 The Mexican Extradition Law, however, allows for extradition of nationals in "exceptional cases as determined by the Executive," thus interfering with the the anti-extradition policy guaranteed by the Constitution. Mexico, even in extraordinary circumstances, refuses to extradite its citizens unless it is guaranteed that the receiving state will not pursue or enforce the death penalty. Mexico's position on execution is the basis for this extradition policy. Although the death sentence is still legally permissible in Mexico, the Mexican penal code contains no provisions for executing it. In Mexico, criminal punishment is regarded as a means to an end rather than an end in itself and thus, its goal is for the criminal to be rehabilitated and reintegrated into the society. Mexico's strong stance on anti-extradition and pro-consular rights policies protects Mexican nationals from injustice and mistreatment. The denial of consular rights is considered by the Mexican people as a human rights issue, rather than a diplomatic or political matter.

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Bruce Zagaris, Mexico Sues U.S. in ICJ over Consular Rights in Death Penalty Cases, 19 INT'L ENFORCEMENT L. REP. 107, n. 4 (2003). 12 Cragg Hines, ‘Consular Rights, Station House Wrongs’ ( Houston Chronicle, 21 Febuary 2003) accessed 13 November 2021 13 Rishi Hingoraney, ‘International Extradition of Mexican Narcotics Traffickers: Prospects and Pitfalls of the New Millennium’ accessed 13 November 2021 14 Argiro Kosmetatos, Comment, U.S.-Mexican Extradition Policy: Were the Predictions Right About Alvarez?, 22 Fordham INT'L L.J. 1064, 1101 (1999).

These concerns were addressed by the ICJ in Avena, where it was usefully clarified that a judicial mechanism is sought out by Article 36(2) of the Vienna Convention.15 On the basis of the facts of this case, and as iterated in the LaGrand case, as the remedy against violations of the Vienna Convention, the United States were to permit 'review and reconsideration', 'with a view to ascertaining whether in each case the violation of Article 36 committed by the competent authorities caused actual prejudice to the defendant in the process of the administration of criminal justice.’16 However, the requirement brought in by the ICJ making it compulsory for the violation of Article 36 to have caused actual prejudice in each and every case still requires an explanation. This requirement could potentially cripple the efficacy of judicial remedies. The fact that the Vienna Convention seeks consular access to be granted to detained foreign nationals has already been established. As anticipated by the treaty, a detained foreign national who is denied the access to his consular rights would surely be seen as prejudiced, despite the fact that premeditating how a particular case would have proceeded if consular rights had been granted could be very uncertain. An important aspect of this judgment is that the ICJ was constrained to interpret only the international treaty it was asked to. It did not examine the denial of consular rights as an issue of human rights as the Court's jurisdiction was based solely on the Vienna Convention on Consular Relations and it had no jurisdiction over general questions of international law and human rights. Nonetheless, Avena may have a significant influence on human rights cases across the world. The United States declared Mexico's claims inadmissible, claiming that they would necessitate changes in the administration of domestic criminal justice. The US alleged that Mexico was attempting to turn the ICJ into a "criminal appeals court." However, the ICJ was justified in dismissing this argument because once a nation decides to provide certain rights as per the requirements of an international treaty, it relinquishes the mask of sovereignty that would otherwise allow it to operate freely. With respect to the primary issue, the decisions in the LaGrand and Avena cases may have a substantial influence on domestic court practise across the world. In terms of consular access, courts have a key role to play as a backup. If the executive branch commits a violation of the Vienna Convention, the courts may be able to give remedies. The LaGrand Case demanded and Avena confirmed the ability of Courts to intervene in this regard and ensure that consular rights be given to foreign nationals.

15 Carsten Hoppe, 'A Question of Life and Death - The Request for Interpretation of Avena and Certain Other Mexican Nationals (Mexico v United States) before the International Court of Justice' (2009) 9 Hum Rts L Rev 455 16 Judgment, para 121. See also LaGrand case, ICJ Reports 2001, pp.513-514, para...