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
1
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.
11
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)
<https://www.chron.com/opinion/article/Hines-Consular-rights-station-house-wrongs-2130760.php> accessed 13
November 2021
13
Rishi Hingoraney, ‘International Extradition of Mexican Narcotics Traffickers: Prospects and Pitfalls of the New
Millennium’ <https://digitalcommons.law.uga.edu/gjicl/vol30/iss2/6/> 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