1 On April 3, 1998, Paraguay filed an application concerning denial of consular notification in the case of Angel Francisco Breard, a Paraguayan national convicted of murder and sentenced to death in Virginia. The Court unanimously granted Paraguay’s request for provisional measures, indicating that the United States should “take all measures at its disposal to ensure” that Breard was not executed pending the final decision in the case. Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 ICJ Rep. 248, 255, para. 41 (Apr. 9). Virginia authorities executed Breard on April 14, 1998. At Paraguay’s request, the Court ordered the dispute removed from its list. Vienna Convention on Consular Relations (Para. v. U.S.) (Int’l Ct. Justice Nov. 10, 1998), available at <http://www.icj-cij.org>. On March 2, 1999, Germany instituted proceedings concerning criminal prosecution of two of its nationals without consular notification; the Court indicated provisional measures the following day and in a later judgment found the United States in breach of the Convention. LaGrand (Ger. v. U.S.) (June 27, 2001), 40 ILM 1069 (2001); see Aceves, William J., Case Report Case Concerning the Vienna Convention on Consular Relations (Federal Republic of Germany v. United States) [LaGrand], in 93 AJIL 924 (1999)CrossRefGoogle Scholar; Aceves, William J., Case Report: LaGrand (Germany v. United States), Judgment, in 96 AJIL 210 (2002)CrossRefGoogle Scholar.

2 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261 [hereinafter Consular Relations Convention].

3 Avena and Other Mexican Nationals (Mex. v. U.S.) (Mar. 31, 2004), 43 ILM 581 (2004) [hereinafter Avena Judgment].

4 The three cases in which all domestic remedies had been exhausted concerned César Roberto Fierro Reyna, Roberto Moreno Ramos, and Osbaldo Torres Aguilera. On March 1, 2003, the Oklahoma Court of Criminal Appeals set an execution date of May 18, 2004, for Torres.

5 Article 36(1) of the Consular Relations Convention, supra note 2, provides as follows:

6 The Judgment addresses fifty-two cases. During the proceedings, Mexico dropped its claims on behalf of two nationals because it learned that one had received timely notification and the other was a dual national of Mexico and the United States.

7 Mexico asserted that forty-nine of the fifty-two individuals had never been informed of their right to consular assistance and that three had been informed after undue delay. See infra note 18. Mexican officials were notified in twenty-nine of the cases only after the conviction and sentencing took place; in twenty-three cases no official notice was given.

8 Avena (Mex.v. U.S.), Provisional Measures (Feb. 5, 2003), 42 ILM 309 (2003) [hereinafter Avena Provisional Measures Order]; see Aceves, William J., Case Report: Avena and Other Mexican Nationals (Mexico v. United States), Provisional Measures Order, in 97 AJIL 923 (2003)Google Scholar.

9 Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 UST 325, 596 UNTS 487.

10 In 1997 Mexico filed a request for an advisory opinion with the Inter-American Court of Human Rights, asking it to decide whether or not the right to information on consular assistance is guaranteed within the framework of due process of law. The Court answered on October 1, 1999, that, inter alia, “Article 36 of the Vienna Convention on Consular Relations concerns the protection of the rights of a national of the sending State and is part of the body of international human rights law” (emphasis omitted). Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Advisory Opinion, Inter-Am. Ct. Hum. Rts. (ser. A) No. 16, para. 141 (2) (1999).

11 Appeals and collateral proceedings had been completed in only three cases, noted supra note 4.

12 The United States also asserted waíver due to Mexico’s delay in presenting the claim. The Court said there was neither prejudice nor such “prolonged and consistent inaction” on the part of Mexico as might imply waiver of its rights. Avena Judgment, supra note 3, para. 44.

13 The Court recalled that in LaGrand it had recognized that Article 36( 1) creates individual rights for the national which may be invoked by the national state of the detained persons. LaGrand, supra note 1, para. 77.

14 Avena Judgment, supra note 3, para. 40.

15 Id., para. 47.

16 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7, 19–20, para. 40 (Dec. 15), quoted in Avena Judgment, supra note 3, para. 47.

17 Avena Judgment, supra note 3, para. 57. Disagreement with the Court’s decision on the burden of proof concerning nationality led Judge Parra-Aranguren to dissent. In his view, the documents Mexico submitted failed to discharge its burden of proof on nationality and the claims presented could therefore not be upheld.

18 Mexico asserted that only three individuals had been given information about consular assistance: one eighteen months after arrest, one forty hours after arrest, and the third upon his arrival on death row, some four years after arrest. The United States claimed that a fourth detainee had been informed some seven months after his arrest and that the information given within forty hours met the “without delay” obligation. In the other cases the parties agreed that no consular information was provided.

19 Avena Judgment, supra note 3, para. 63.

20 The Court found that, by one means or another, Mexico had learned of the detention of sixteen of the nationals in sufficient time to arrange for legal representation as foreseen by Convention Article 36 (1) (c).

21 Avena Judgment, supra note 3, para. 102 (quoting LaGrand, supra note 1, para. 74).

22 Article 36(2) of the Consular Relations Convention, supra note 2, provides:

23 Factory at Chorzów, Jurisdiction, 1927 PCIJ (ser. A) No. 9, at 21, quoted in Avena Judgment, supra note 3, para. 119.

24 Avena Judgment, supra note 3, para. 121.

25 Mexico contended that the exclusionary rule is a general principle of law used in civil law and common law jurisdictions, and thus is applicable under Article 38 (1) (c) of the Statute of the Court.

26 Avena Judgment, supra note 3, para. 151.

27 The Provisional Measures Order provided that the United States “shall take all measures necessary to ensure that [the three Mexican nationals facing execution] are not executed pending final judgment in these proceedings” and that the United States “shall inform the Court of all measures taken in implementation of this Order.” Avena Provisional Measures Order, supra note 8, para. 59.

28 See, e.g., Effect of Reservations on Entry into Force of the American Convention, Advisory Opinion, Inter-Am. Ct. Hum. Rts. (ser. A) No. 2, para. 29 (1982).

29 LaGrand, supra note 1, para. 90.

30 According to Article 27 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” The ICJ does not refer to this provision in either Avena or LaGrand, but the Avena Judgment implies that no distinction should be made between judicially created internal law and legislative acts.

31 LaGrand, supra note 1, para. 125.

32 In this regard, the Court distinguished the Arrest Warrant case as one where the legality of issuing the warrant was in question; therefore, the appropriate remedy was to order the cancellation of the warrant. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo, v. Bel.), 2002 ICJ Rep. 3, 33, para. 76 (Feb. 14). The Court reiterated that in Avena the legality of the convictions and sentences was not in question, only the treaty violations that preceded them.

33 LaGrand, supra note 1, para. 78.

34 Avena Judgment, supra note 3, para. 131.

35 See the Torres case documents reprinted in this issue in Murphy, Sean D., Contemporary Practice of the United States, 98 AJIL 581, 582–84 (2004)Google ScholarPubMed.

36 Torres v. Oklahoma, No. PCD-04–442 (Ct. Crim. App. May 13, 2004) (on file with author).