¹ Other Debevoise colleagues working on the case included Katherine Birmingham Wilmore, Dietmar W. Prager, Natalie S. Klein and Thomas J. Bollyky.Google Scholar

² Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (hereafter “Avena case”).Google Scholar

³ Mexico's history of consular assistance in the United States dates back to the turn of the century. See Memorial of Mexico in Avena,11-13, available at: <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm> (hereafter “Memorial of Mexico”).+(hereafter+“Memorial+of+Mexico”).>Google Scholar

⁴ Vienna Convention on Consular Relations, 24 April 1963, Art. 36, 21 UST 71, 596 UNTS 261 (hereafter “Vienna Convention”). Article 36 of the Vienna Convention provides:Google Scholar

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:Google Scholar

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;Google Scholar

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;Google Scholar

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.Google Scholar

⁵ LaGrand (Germany v. United States of America), Merits, Judgment, ICJ Reports 2001 (hereafter “LaGrand Judgment”).Google Scholar

⁶ See Memorial of Mexico, in Avena, 47-65.Google Scholar

⁷ See Application, Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), available at: <http://212.153.43.18/icjwww/idocket/imus/imusorder/imus_iapplication_20030109.PDF>..>Google Scholar

⁸ Request for the Indication of Provisional Measures of Mexico, in Avena (filed 9 Jan. 2003).Google Scholar

⁹ LaGrand (Germany v. United States of America), Order, ICJ Reports 1999, 9, para. 29(I)(a) (Mar. 3).Google Scholar

¹⁰ Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Order, ICJ Reports 2003, para. 59(I)(a) (Feb. 5).Google Scholar

¹¹ LaGrand Judgment, para. 125.Google Scholar

¹² Article 36(1)(b) provides: “if [the detained national] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.” (emphasis added).Google Scholar

¹³ LaGrand Judgment, para. 74.Google Scholar

¹⁴ The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Series A, No. 16, para. 106.Google Scholar

¹⁵ See Speech of Mr. Donovan, Merits Hearing, in Avena, CR 2003/24, at 61, para. 215 (noting that U.S. survey reveals a diverse group of states comprised of Brazil, Korea, Iceland, Ireland, Kenya, Denmark, Spain and Turkey that act in accord with Mexico's interpretation), available at <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm>..>Google Scholar

¹⁶ Article 36(2) provides: “The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.” (emphasis added).Google Scholar

¹⁷ Judgment, LaGrand, para. 125.Google Scholar

¹⁸ Ohio Adult Parole Authority v. Woodard, 523 US 272, 280 (1998) (citing Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)).Google Scholar

¹⁹ See generally Memorial of Mexico, 101-115.Google Scholar

²⁰ See Speech of Ms. Babcock, Merits Hearing, in Avena, CR 2003/25, 11, para. 264, available at <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm>..>Google Scholar

²¹ See, e.g., Agence France-Presse, US Governor Overturns 167 Death Sentences in Momentous Blanket Clemency; 12 January 2003; Ryan Kieth, Court: Gov. Could Commute Death Sentences, Chicago Tribune, 23 Jan. 2004.Google Scholar

²² See Commentary to Art. 35 of the Articles on State Responsibility, para. 2; see Memorial of Mexico, 150-152.Google Scholar

²³ See Memorial of Mexico, 150-166; Speech of Mr. Donovan, Merits Hearing, in Avena, CR 2003/25, 34-41, paras. 347-375, available at <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm>..>Google Scholar

²⁴ See Counter-Memorial of the United States, 178-186, available at <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm>..>Google Scholar

²⁵ See Memorial of Mexico, 150-166; Speech of Mr. Donovan, Merits Hearing, in Avena, CR 2003/28, 39-42, paras. 121-137, available at <http://212.153.43.18/icjwww/idocket/imus/imusframe.htm>..>Google Scholar