Case concerning Avena and other Mexican nationals Mexico v. USA Provisional Measures 5 February

2. Whereas the Application states that 54 Mexican national are on death row in the United States; … it is alleged that these individuals were arrested, detained, tried, convicted and sentenced to death by competent authorities of the United States following proceedings in which those authorities failed to comply with their obligations under Article 36, paragraph 1 (b), of the Vienna Convention; whereas it is contended that this provision requires that the authorities of the receiving State inform without delay any national of another State detained by those authorities of his right to contact his consulate…. It is alleged that, in the cases of 49 of the detained Mexican nationals, the competent authorities of the United States made no attempt at any time to comply with Article 36 of the Vienna Convention , that in the cases of four other detained individuals, the required notification was not made “without delay”, and finally that in one case, while the detained national was informed of his rights, it was in connection with proceedings other than those involving capital charges against him; 11. Whereas in the request for the indication fo provisional measures Mexico states that three Mexican nationals, namely Messrs. César Roberto Fierro Reyna, Roberto Moreno Ramos and Osvaldo Torres Aguilera, risk execution within the nest six months and that many other Mexican nationals would be executed before the end of 2003; and whereas Mexico further states that César Roberto Fierro Reyna’s execution could take place as early as 14 February 2003; 27. Whereas Mexico has stressed that neither the apologies offered by the Government of the United States following the execution of Mexican nationals whose rights under the Vienna Convention had been violated, nor the review by an executive official “as a matter of grace and not of legal right” could represent a sufficient remedy for violations by competent authorities in the United States of obligations arsing form the Vienna conventions; that a “meaningful ‘review and reconsideration’ of its nationals’ claims in accord with the Judgement in LaGrand” requires the provision of a “remedy at law”; and that only the restoration of the Status quo ante, that is the re-establishment of the situation that existed before the violation, would be such a remedy;

30. Whereas the United States submitted … that the request by Mexico seeking by way of indication of provisional measures, to preserve a right to the restoration of the status quo ante was not a request seeking preservation of a right protected by the Vienna Convention, and that therefore the request should be denied; 38. Whereas, on a request for the indication of provisional measures, the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the court might be founded; 44. Whereas the United States acknowledges that, in certain cases, Mexican nationals have been prosecuted and sentenced without being informed of their rights pursuant to Article 36, paragraph 1 (b) of the Vienna Convention; whereas it argues, however, that in such cases, in accordance with the Court’s Judgement in the LaGrand case, the United States has the obligation “by means of its own choosing, [to] allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention”…. Whereas the United States contends that such review and reconsideration can occur through the process of executive clemency … that under the terms of the Court’s decision of the LaGrand case, this is a sufficient remedy for its breaches, and that there is accordingly no need to indicate provisional measures intended to preserve the rights to such remedies; 45. Whereas, according to Mexico, the position of the United States, amounts to maintaining that “the Vienna Convention entitles Mexico only to review and reconsideration, and that the review and considerations equals only the ability to request clemency”; whereas “the standardless, secretive and unreviewable process that is called clemency cannot and does not satisfy this Court’s mandate [in the LaGrand case]” 46. Whereas there is thus a dispute between the Parties concerning the rights of Mexico and of its nationals regarding the remedies that must be provided in the event of a failure by the United States to comply with its obligations under Article 36, paragraph 1, of the Vienna Conventions; whereas the dispute belongs to the merits and cannot be settled at this stage of the proceedings; 53. Whereas the United States argues that no execution date has been scheduled with respect to any of the Mexican nationals concerned…it accordingly concludes that the request for the indication of provisional measures is thus premature 54. … the fact that no such dates have been fixed in any of the cases before the Court is not per se a circumstance that should preclude the Court form indicating provisional measures 59. The Court Unanimously, I. Indicates the following provisional measures: (a) The United States of America shall take all measures necessary to ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgment in these proceedings; (b) The Government of the United States of America shall inform the Court of all measures taken in the implementation of this Order.