Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court,
Having regard to the Application filed in the Registry of the Court on 9 January 2003, whereby the United Mexican States (hereinafter "Mexico") instituted proceedings against the United States of America (hereinafter the "United States") for "violations of the Vienna Convention on Consular Relations (done on 24 April 1963)" (hereinafter the "Vienna Convention") allegedly committed by the United States,
Makes the following Order:
"If the receiving State fails to comply with Article 36, and the sending State's national has been subjected to 'prolonged detention or convicted and sentenced to severe penalties',... the receiving State must 'allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention'";
"(1) that the United States, in arresting, detaining, trying, convicting, and sentencing the 54 Mexican nationals on death row described in this Application, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention;
(2) that Mexico is therefore entitled to restitutio in integrum ;
(3) that the United States is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;
(4) that the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against the 54 Mexican nationals on death row or any other Mexican national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power's functions are international or internal in character;
(5) that the right to consular notification under the Vienna Convention is a human right;
and that, pursuant to the foregoing international legal obligations,
(1) the United States must restore the status quo ante, that is, reestablish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Mexico's nationals in violation of the United States international legal obligations ;
(2) the United States must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended;
(3) the United States must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to Mexico and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure timely to raise a claim or defence based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his or her rights under the Convention; and
(4) the United States, in light of the pattern and practice of violations set forth in this Application, must provide Mexico a full guarantee of the non-repetition of the illegal acts";
"Unless the Court indicates provisional measures directing the United States to halt any executions of Mexican nationals until this Court's decision on the merits of Mexico's claims, the executive officials of constituent states of the United States will execute Messrs. Fierro [Reyna], Moreno Ramos, Torres [Aguilera], or other Mexican nationals on death row before the Court has had the opportunity to consider those claims. In that event, Mexico would forever be deprived of the opportunity to vindicate its rights and those of its nationals. As the Court recognized in the LaGrand case, such circumstances would constitute irreparable prejudice...";
"[g]iven the clarity of both international law and United States municipal law, there can be no doubt that the United States has the means to ensure compliance with an order of provisional measures issued by this Court pursuant to Article 41 (1) [of its Statute]";
"(a) that the Government of the United States take all measures necessary to ensure that no Mexican national be executed;
(b) that the Government of the United States take all measures necessary to ensure that no execution dates be set for any Mexican national;
(c) that the Government of the United States report to the Court the actions it has taken in pursuance of subparagraphs (a) and (b) ; and
(d) that the Government of the United States ensure that no action is taken that might prejudice the rights of the United Mexican States or its nationals with respect to any decision this Court may render on the merits of the case" ;
and whereas Mexico further asks the Court to treat its request as a matter of the greatest urgency "[i]n view of the extreme gravity and immediacy of the threat that authorities in the United States will execute a Mexican citizen" ;
On behalf of Mexico:
H.E. Mr. Juan Manuel Gomez Robledo,
H.E. Mr. Santiago Onate,
H.E. Mr. Alberto Székely,
Ms Sandra Babcock,
Mr. Donald Francis Donovan;
On behalf of the United States:
The Honorable William H. Taft, IV, Mr. Stephen Mathias,
Ms Catherine W. Brown,
Mr. James H. Thessin,
Sir Elihu Lauterpacht,
Mr. Daniel Paul Collins;
and whereas at the hearings a question was put by a Member of the Court, to which an oral reply was given;
"Under what circumstances will the Legal Adviser of the State Department notify an appellate court rather than later notify a clemency body of the obligations of the United States consequent upon an admitted violation of Article 36 of the Vienna Convention? Is the matter simply one of timing?";
whereas, in response to that question, the Agent stated inter alia the following:
"We... have made a conscious choice to focus our efforts on clemency proceedings for providing the review and reconsideration this Court called for in LaGrand. [That Judgment] expressly left the choice of means of providing the review and reconsideration to the United States[…]... [C]lemency proceedings provide a more flexible process that is best suited for achieving, without procedural obstacles, the review and reconsideration this Court called for" ;
and whereas the Agent added that his
"Government would... inform a court upon request, at any time, of the international legal obligations of the United States, and how in the particular posture of a given case they [might] or [might] not apply and whether and how they might be carried out under the applicable domestic law in that court",
while explaining that "a court [might] determine... that domestic law principles still preclude[d] an express judicial remedy for a failure of consular notification" ;
"Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a Party to the present Protocol" ;
"the power of the Court to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings" (ibid., pp. 14-15, para. 22);
"provisional measures under Article 41 of the Statute are indicated 'pending the final decision' of the Court on the merits of the case, and are therefore only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given" (Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23);
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 implementation of this Order.
II. Decides that, until the Court has rendered its final judgment, it shall remain seised of the matters which form the subject of this Order.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this fifth day of February, two thousand and three, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the United Mexican States and the Government of the United States of America, respectively.
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