* bok * cj * tiff * gem * tin * public international law UPLAW 2009 B

“…my claim to fame is when I saw Imelda Marcos, I stuck my tongue out at her. And she still remembers!... Honestly, I’d do it again.”
This digest compilation wouldn’t have been possible without the help of Ben and 3. Petitioners filed the instant petition to compel the respondents — the Office of the
Jerome.  Executive Secretary and the Department of Foreign Affairs — to transmit the signed
text of the treaty to the Senate of the Philippines for ratification.
5. Vienna Convention on the Law of Treaties
4. Petitioner’s 2 Theories: Senate has the power to ratify & a pre-emptive notion of
SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE pacta sunt servanda
COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL A. Ratification of a treaty, under both domestic law and international law, is a
CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, function of the Senate. Hence, it is the duty of the executive department to transmit
FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, the signed copy of the Rome Statute to the Senate.
BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, B. The Philippines has a ministerial duty to ratify the Rome Statute under treaty
AHMED PAGLINAWAN, RON P. SALO, LEAVIDES G. DOMINGO, EDGARDO law and customary international law such as the Vienna Convention on the Law of
CARLO VISTAN, NOEL VILLAROMAN, Treaties enjoining the states to refrain from acts which would defeat the object and
CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, purpose of a treaty when they have signed the treaty prior to ratification unless they
CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, have made their intention clear not to become parties to the treaty
Petitioners,
- versus - 5. Standing Issue
- only those aggrieved by the inaction of the executive has standing
OFFICE OF THE EXECUTIVE SECRETARY, represented by - “Legal standing” means a personal and substantial interest in the case such that
HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, the party has sustained or will sustain direct injury as a result of the government act
represented by HON. BLAS OPLE, that is being challenged.
Respondents - “Interest” is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere
*case concerns a petition for mandamus to compel the respondents to transmit to incidental interest
the Senate the signed copy of the Rome Statute of the Int’l Criminal Court (being
held by the executive branch – Dept. of Foreign Affairs) for ratification. Petitioners 6. Parties and their basis for Standing
allege that the executive has a duty to transmit the signed copy upon the theory
that Senate has the power to ratify. Furthermore they insist that the Philippines has Senator Aquilino Pimentel, Jr. member of the Senate
a ministerial duty to ratify the treaty since we signed it already.
Court disagrees on both levels. Congresswoman Loretta Ann member of the House of Representatives
Rosales and Chairperson of its Committee on
Human Rights
PUNO J.: The Philippine Coalition for the composed of individuals and corporate
Establishment of the International entities dedicated to the Philippine
1. Purpose of the Rome Statute Criminal Court ratification of the Rome Statute
The Rome Statute established the International Criminal Court which “shall have the Task Force Detainees of the a juridical entity with the avowed purpose
the power to exercise its jurisdiction over persons for the most serious crimes of Philippines of promoting the cause of human rights
international concern xxx and shall be complementary to the national criminal and human rights victims in the country
jurisdictions.”[1] Its jurisdiction covers the crime of genocide, crimes against
humanity, war crimes and the crime of aggression as defined in the Statute.[2] The the Families of Victims of Involuntary , a juridical entity duly organized and
Statute was opened for signature by all states in Rome on July 17, 1998 and had Disappearances existing pursuant to Philippine Laws with
remained open for signature until December 31, 2000 at the United Nations the avowed purpose of promoting the
Headquarters in New York. cause of families and victims of human
2. The Philippines signed the Statute on December 28, 2000 through Charge d’ rights violations in the country
Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.[ that it be Bianca Hacintha Roque and Harrison suing under the doctrine of inter-
subject to ratification, acceptance or approval of the signatory states. Jacob Roque aged two (2) and one (1), generational rights enunciated in the case
(THESE ARE ROQUE’S KIDS!!!) of Oposa vs. Factoran, Jr
group of fifth year working law students Taxpayers (mga sipsip)
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from the University of the Philippines
College of Law
7. Only Senator Pimentel has standing !!!
“to the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the
powers of that institution.”
8. Other petitioner’s contention – Rome Statute protects their right
Their contention that they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is intended to
complement national criminal laws and courts. Sufficient remedies are available
under our national laws to protect our citizens against human rights violations and
petitioners can always seek redress for any abuse in our domestic courts.
9. SUBSTANTIVE ISSUE
whether the Executive Secretary and the Department of Foreign Affairs have a
ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a
member of the Philippine Mission to the United Nations even without the signature
of the President.
10. COURT HOLDS – no duty on the executive. Petition for mandamus dismissed
11. Role of the President with regard to foreign affairs
- the sole organ and authority in external relations and is the country’s sole
representative with foreign nations.
- the chief architect of foreign policy, the President acts as the country’s mouthpiece
with respect to international affairs.
- the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations.
- In the realm of treaty-making, the President has the sole authority to negotiate with
other states.
12. What about the Concurrence of Senate requirement? Only serve as a check!
Section 21, Article VII of the 1987 Constitution
“no treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate.”
The participation of the legislative branch in the treaty-making process was
deemed essential to provide a check on the executive in the field of foreign
relations. By requiring the concurrence of the legislature in the treaties entered into
by the President, the Constitution ensures a healthy system of checks and balance
necessary in the nation’s pursuit of political maturity and growth.[
13. The power to ratify does not belong to the Senate!!!
14. Justice Isagani Cruz, in his book on International Law describes the treaty-
making process in this wise:
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Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. These representatives are
provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of
the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations.
Signing is the step primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where
ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to
sign first on the copy which he will bring home to his own state.
Ratification which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it should they find it
inimical to their interests
Exchange of the instruments of ratification, which usually also signifies the
effectivity of the treaty unless a different date has been agreed upon by the parties.
Where ratification is dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its signature.
15. Error of petitioner – DFA signing is not equal to ratification
Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November
25, 1997 provides the guidelines in the negotiation of international agreements and
its ratification. It mandates that after the treaty has been signed by the Philippine
representative, the same shall be transmitted to the Department of Foreign Affairs.
The Department of Foreign Affairs shall then prepare the ratification papers and
forward the signed copy of the treaty to the President for ratification. After the
President has ratified the treaty, the Department of Foreign Affairs shall submit the
same to the Senate for concurrence.
16. Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. — The domestic requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements. (same as treaties)
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the
requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements)
of this Section. In addition, the Department of Foreign Affairs shall submit the
treaties to the Senate of the Philippines for concurrence in the ratification by the
President. A certified true copy of the treaties, in such numbers as may be required
by the Senate, together with a certified true copy of the ratification instrument, shall
accompany the submission of the treaties to the Senate.
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ii. Upon receipt of the concurrence by the Senate, the Department of Foreign
Affairs shall comply with the provision of the treaties in effecting their entry into
force.
17. Ministerial duty to ratify a treaty after signing has no basis
- The signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to
ratification, acceptance or approval of the signatory states. Ratification is the act by
which the provisions of a treaty are formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a state expresses its willingness to be bound
by the provisions of such treatyThus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the
same. The Vienna Convention on the Law of Treaties does not contemplate to
defeat or even restrain this power of the head of states. If that were so, the
requirement of ratification of treaties would be pointless and futile. It has been held
that a state has no legal or even moral duty to ratify a treaty which has been signed
by its plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes
without saying that the refusal must be based on substantial grounds and not on
superficial or whimsical reasons.
18. Power to ratify is vested in the President alone!!! He can refuse to ratify!
It should be emphasized that under our Constitution, the power to ratify is vested in
the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Although the refusal of a state to ratify a treaty which has been signed in
its behalf is a serious step that should not be taken lightly, such decision is within
the competence of the President alone, which cannot be encroached by this Court
via a writ of mandamus. This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official duties.
IN VIEW WHEREOF, the petition is DISMISSED.
6. Vienna Convention on Diplomatic Relations
The States Parties to the present Convention,
Recalling that peoples of all nations from ancient times have recognized the status of
diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations concerning
the sovereign equality of States, the maintenance of international peace and security, and the
promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges and immunities
would contribute to the development of friendly relations among nations, irrespective of their
differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to
ensure the efficient performance of the functions of diplomatic missions as representing
States,
Affirming that the rules of customary international law should continue to govern questions not
expressly regulated by the provisions of the present Convention,
Have agreed as follows:
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Article 1
For the purpose of the present Convention, the following expressions shall have the meanings
hereunder assigned to them:
1. the "head of the mission" is the person charged by the sending State with the duty of
acting in that capacity;
2. the "members of the mission" are the head of the mission and the members of the
staff of the mission;
3. the "members of the staff of the mission" are the members of the diplomatic staff, of
the administrative and technical staff and of the service staff of the mission;
4. the "members of the diplomatic staff" are the members of the staff of the mission
having diplomatic rank;
5. a "diplomatic agent" is the head of the mission or a member of the diplomatic staff of
the mission;
6. the "members of the administrative and technical staff" are the members of the staff of
the mission employed in the administrative and technical service of the mission;
7. the "members of the service staff" are the members of the staff of the mission in the
domestic service of the mission;
8. a "private servant" is a person who is in the domestic service of a member of the
mission and who is not an employee of the sending State;
9. the "premises of the mission" are the buildings or parts of buildings and the land
ancillary thereto, irrespective of ownership, used for the purposes of the mission including the
residence of the head of the mission.
Article 2
The establishment of diplomatic relations between States, and of permanent diplomatic
missions, takes place by mutual consent.
Article 3
1. The functions of a diplomatic mission consist inter alia in:
1. representing the sending State in the receiving State;
2. protecting in the receiving State the interests of the sending State and of its nationals,
within the limits permitted by international law;
3. negotiating with the Government of the receiving State;
4. ascertaining by all lawful means conditions and developments in the receiving State,
and reporting thereon to the Government of the sending State;
5. promoting friendly relations between the sending State and the receiving State, and
developing their economic, cultural and scientific relations.
2. Nothing in the present Convention shall be construed as preventing the performance of
consular functions by a diplomatic mission.
Article 4
1. The sending State must make certain that the agrément of the receiving State has been
given for the person it proposes to accredit as head of the mission to that State.
2. The receiving State is not obliged to give reasons to the sending State for a refusal of
agrément.
Article 5
1. The sending State may, after it has given due notification to the receiving States
concerned, accredit a head of mission or assign any member of the diplomatic staff, as the
case may be, to more than one State, unless there is express objection by any of the receiving
States.
2. If the sending State accredits a head of mission to one or more other States it may
establish a diplomatic mission headed by a charge d'affaires ad interim in each State where
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the head of mission has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as
representative of the sending State to any international organization.
Article 6
Two or more States may accredit the same person as head of mission to another State,
unless objection is offered by the receiving State.
Article 7
Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the
members of the staff of the mission. In the case of military, naval or air attaches, the receiving
State may require their names to be submitted beforehand, for its approval.
Article 8
1. Members of the diplomatic staff of the mission should in principle be of the nationality of
the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons
having the nationality of the receiving State, except with the consent of that State which may
be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State
who are not also nationals of the sending State.
Article 9
1. The receiving State may at any time and without having to explain its decision, notify the
sending State that the head of the mission or any member of the diplomatic staff of the
mission is persona non grata or that any other member of the staff of the mission is not
acceptable. In any such case, the sending State shall, as appropriate, either recall the person
concerned or terminate his functions with the mission. A person may be declared non grata or
not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations
under paragraph 1 of this Article, the receiving State may refuse to recognize the person
concerned as a member of the mission.
Article 10
1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be
agreed, shall be notified of:
1. the appointment of members of the mission, their arrival and their final departure or
the termination of their functions with the mission;
2. the arrival and final departure of a person belonging to the family of a member of the
mission and, where appropriate, the fact that a person becomes or ceases to be a member of
the family of a member of the mission;
3. the arrival and final departure of private servants in the employ of persons referred to
in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving
the employ of such persons;
4. the engagement and discharge of persons resident in the receiving State as members
of the mission or private servants entitled to privileges and immunities.
2. Where possible, prior notification of arrival and final departure shall also be given.
Article 11
1. In the absence of specific agreement as to the size of the mission, the receiving State
may require that the size of a mission be kept within limits considered by it to be reasonable
and normal, having regard to circumstances and conditions in the receiving State and to the
needs of the particular mission.
2. The receiving State may equally, within similar bounds and on a nondiscriminatory basis,
refuse to accept officials of a particular category.
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Article 12
The sending State may not, without the prior express consent of the receiving State, establish
offices forming part of the mission in localities other than those in which the mission itself is
established.
Article 13
1. The head of the mission is considered as having taken up his functions in the receiving
State either when he has presented his credentials or when he has notified his arrival and a
true copy of his credentials has been presented to the Ministry for Foreign Affairs of the
receiving State, or such other ministry as may be agreed, in accordance with the practice
prevailing in the receiving State which shall be applied in a uniform manner.
2. The order of presentation of credentials or of a true copy thereof will be determined by the
date and time of the arrival of the head of the mission.
Article 14
1. Heads of mission are divided into three classes, namely:
1. that of ambassadors or nuncios accredited to Heads of State, and other heads of
mission of equivalent rank;
2. that of envoys, ministers and internuncios accredited to Heads of State;
3. that of charges d'affaires accredited to Ministers for Foreign Affairs.
2. Except as concerns precedence and etiquette, there shall be no differentiation between
heads of mission by reason of their class.
Article 15
The class to which the heads of their missions are to be assigned shall be agreed between
States.
Article 16
1. Heads of mission shall take precedence in their respective classes in the order of the date
and time of taking up their functions in accordance with Article 13.
2. Alterations in the credentials of a head of mission not involving any change of class shall
not affect his precedence.
3. This article is without prejudice to any practice accepted by the receiving State regarding
the precedence of the representative of the Holy See.
Article 17
The precedence of the members of the diplomatic staff of the mission shall be notified by the
head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.
Article 18
The procedure to be observed in each State for the reception of heads of mission shall be
uniform in respect of each class.
Article 19
1. If the post of head of the mission is vacant, or if the head of the mission is unable to
perform his functions, a charge d'affaires ad interim shall act provisionally as head of the
mission. The name of the charge d'affaires ad interim shall be notified, either by the head of
the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending
State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be
agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving
State, a member of the administrative and technical staff may, with the consent of the
receiving State, be designated by the sending State to be in charge of the current
administrative affairs of the mission.
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Article 20
The mission and its head shall have the right to use the flag and emblem of the sending State
on the premises of the mission, including the residence of the head of the mission, and on his
means of transport.
Article 21
1. The receiving State shall either facilitate the acquisition on its territory, in accordance with
its laws, by the sending State of premises necessary for its mission or assist the latter in
obtaining accommodation in some other way.
2. It shall also, where necessary, assist missions in obtaining suitable accommodation for
their members.
Article 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not
enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance of the
peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means
of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 23
1. The sending State and the head of the mission shall be exempt from all national, regional
or municipal dues and taxes in respect of the premises of the mission, whether owned or
leased, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article shall not apply to such dues and
taxes payable under the law of the receiving State by persons contracting with the sending
State or the head of the mission.
Article 24
The archives and documents of the mission shall be inviolable at any time and wherever they
may be.
Article 25
The receiving State shall accord full facilities for the performance of the functions of the
mission.
Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated
for reasons of national security, the receiving State shall ensure to all members of the mission
freedom of movement and travel in its territory.
Article 27
1. The receiving State shall permit and protect free communication on the part of the mission
for all official purposes. In communicating with the Government and the other missions and
consulates of the sending State, wherever situated, the mission may employ all appropriate
means, including diplomatic couriers and messages in code or cipher. However, the mission
may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence
means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their
character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an official document indicating his
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status and the number of packages constituting the diplomatic bag, shall be protected by the
receiving State in the performance of his functions. He shall enjoy personal inviolability and
shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such
cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities
therein mentioned shall cease to apply when such a courier has delivered to the consignee the
diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to
land at an authorized port of entry. He shall be provided with an official document indicating
the number of packages constituting the bag but he shall not be considered to be a diplomatic
courier. The mission may send one of its members to take possession of the diplomatic bag
directly and freely from the captain of the aircraft.
Article 28
The fees and charges levied by the mission in the course of its official duties shall be exempt
from all dues and taxes.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest
or detention. The receiving State shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom or dignity.
Article 30
1. The private residence of a diplomatic agent shall enjoy the same inviolability and
protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his
property, shall likewise enjoy inviolability
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the
case of:
1. a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
2. an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
3. an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the
cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and
provided that the measures concerned can be taken without infringing the inviolability of his
person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending State.
Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity
under Article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in
respect of any counter-claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall
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not be held to imply waiver of immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary.
Article 33
1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with
respect to services rendered for the sending State be exempt from social security provisions
which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall also apply to private
servants who are in the sole employ of a diplomatic agent, on condition:
1. that they are not nationals of or permanently resident in the receiving State; and
2. that they are covered by the social security provisions which may be in force in the
sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in
paragraph 2 of this Article does not apply shall observe the obligations which the social
security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude
voluntary participation in the social security system of the receiving State provided that such
participation is permitted by that State.
5. The provisions of this Article shall not affect bilateral or multilateral agreements
concerning social security concluded previously and shall not prevent the conclusion of such
agreements in the future.
Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional
or municipal, except:
1. indirect taxes of a kind which are normally incorporated in the price of goods or
services;
2. dues and taxes on private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;
3. estate, succession or inheritance duties levied by the receiving State, subject to the
provisions of paragraph 4 of Article 39;
4. dues and taxes on private income having its source in the receiving State and capital
taxes on investments made in commercial undertakings in the receiving State;
5. charges levied for specific services rendered;
6. registration, court or record fees, mortgage dues and stamp duty, with respect to
immovable property, subject to the provisions of Article 23.
Article 35
The receiving State shall exempt diplomatic agents from all personal services, from all public
service of any kind whatsoever, and from military obligations such as those connected with
requisitioning, military contributions and billeting.
Article 36
1. The receiving State shall, in accordance with such laws and regulations as it may adopt,
permit entry of and grant exemption from all customs duties, taxes, and related charges other
than charges for storage, cartage and similar services, on:
1. articles for the official use of the mission;
2. articles for the personal use of a diplomatic agent or members of his family forming
part of his household, including articles intended for his establishment.
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there
are serious grounds for presuming that it contains articles not covered by the exemptions
mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited
by the law or controlled by the quarantine regulations of the receiving State. Such inspection
shall be conducted only in the presence of the diplomatic agent or of his authorized
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representative.
Article 37
1. The members of the family of a diplomatic agent forming part of his household shall, if
they are not nationals of the receiving State, enjoy the privileges and immunities specified in
Articles 29 to 36.
2. Members of the administrative and technical staff of the mission, together with members
of their families forming part of their respective households, shall, if they are not nationals of or
permanently resident in the receiving State, enjoy the privileges and immunities specified in
Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the
receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed
outside the course of their duties. They shall also enjoy the privileges specified in Article 36,
paragraph 1, in respect of articles imported at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently
resident in the receiving State shall enjoy immunity in respect of acts performed in the course
of their duties, exemption from dues and taxes on the emoluments they receive by reason of
their employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not nationals of or
permanently resident in the receiving State, be exempt from dues and taxes on the
emoluments they receive by reason of their employment. In other respects, they may enjoy
privileges and immunities only to the extent admitted by the receiving State. However, the
receiving State must exercise its jurisdiction over those persons in such a manner as not to
interfere unduly with the performance of the functions of the mission.
Article 38
1. Except insofar as additional privileges and immunities may be granted by the receiving
State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy
only immunity from jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or
permanently resident in the receiving State shall enjoy privileges and immunities only to the
extent admitted by the receiving State. However, the receiving State must exercise its
jurisdiction over those persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he
enters the territory of the receiving State on proceeding to take up his post or, if already in its
territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs
or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end,
such privileges and immunities shall normally cease at the moment when he leaves the
country, or on expiry of a reasonable period in which to do so, but shall subsist until that time,
even in case of armed conflict. However, with respect to acts performed by such a person in
the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue
to enjoy the privileges and immunities to which they are entitled until the expiry of a
reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently
resident in the receiving State or a member of his family forming part of his household, the
receiving State shall permit the withdrawal of the movable property of the deceased, with the
exception of any property acquired in the country the export of which was prohibited at the
time of his death. Estate, succession and inheritance duties shall not be levied on movable
property the presence of which in the receiving State was due solely to the presence there of
the deceased as a member of the mission or as a member of the family of a member of the
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mission.
Article 40
1. If a diplomatic agent passes through or is in the territory of a third State, which has
granted him a passport visa if such visa was necessary, while proceeding to take up or to
return to his post, or when returning to his own country, the third State shall accord him
inviolability and such other immunities as may be required to ensure his transit or return. The
same shall apply in the case of any members of his family enjoying privileges or immunities
who are accompanying the diplomatic agent, or traveling separately to join him or to return to
their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall
not hinder the passage of members of the administrative and technical or service staff of a
mission, and of members of their families, through their territories.
3. Third States shall accord to official correspondence and other official communications in
transit, including messages in code or cipher, the same freedom and protection as is accorded
by the receiving State. They shall accord to diplomatic couriers, who have been granted a
passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability
and protection as the receiving State is bound to accord.
4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply
to the persons mentioned respectively in those paragraphs, and to official communications
and diplomatic bags, whose presence in the territory of the third State is due to force majeure.
Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving State. They
also have a duty not to interfere in the internal affairs of that State.
2. All official business with the receiving State entrusted to the mission by the sending State
shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or
such other ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with the
functions of the mission as laid down in the present Convention or by other rules of general
international law or by any special agreements in force between the sending and the receiving
State.
Article 42
A diplomatic agent shall not in the receiving State practice for personal profit any professional
or commercial activity.
Article 43
The function of a diplomatic agent comes to an end, inter alia:
1. on notification by the sending State to the receiving State that the function of the
diplomatic agent has come to an end;
2. on notification by the receiving State to the sending State that, in accordance with
paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the
mission.
Article 44
The receiving State must, even in case of armed conflict, grant facilities in order to enable
persons enjoying privileges and immunities, other than nationals of the receiving State, and
members of the families of such persons irrespective of their nationality, to leave at the earliest
possible moment. It must, in particular, in case of need, place at their disposal the necessary
means of transport for themselves and their property.
Article 45
7
If diplomatic relations are broken off between two States, or if a mission is permanently or
temporarily recalled:
1. the receiving State must, even in case of armed conflict, respect and protect the
premises of the mission, together with its property and archives;
2. the sending State may entrust the custody of the premises of the mission, together
with its property and archives, to a third State acceptable to the receiving State;
3. the sending State may entrust the protection of its interests and those of its nationals
to a third State acceptable to the receiving State.
Article 46
A sending State may with the prior consent of a receiving State, and at the request of a third
State not represented in the receiving State, undertake the temporary protection of the
interests of the third State and of its nationals.
Article 47
1. In the application of the provisions of the present Convention, the receiving State shall not
discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
1. where the receiving State applies any of the provisions of the present Convention
restrictively because of a restrictive application of that provision to its mission in the sending
State;
2. where by custom or agreement States extend to each other more favorable treatment
than is required by the provisions of the present Convention.
Article 48
The present Convention shall be open for signature by all States Members of the United
Nations or of any of the specialized agencies or Parties to the Statute of the International
Court of Justice, and by any other State invited by the General Assembly of the United Nations
to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry
for Foreign Affairs of Austria and subsequently, until 31 March 1962, at the United Nations
Headquarters in New York.
Article 49
The present Convention is subject to ratification. The instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
Article 50
The present Convention shall remain open for accession by any State belonging to any of the
four categories mentioned in Article 48. The instruments of accession shall be deposited with
the Secretary-General of the United Nations.
Article 51
1. The present Convention shall enter into force on the thirtieth day following the date of
deposit of the twenty-second instrument of ratification or accession with the Secretary-General
of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-
second instrument of ratification or accession, the Convention shall enter into force on the
thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 52
The Secretary-General of the United Nations shall inform all States belonging to any of the
four categories mentioned in Article 48:
1. of signatures to the present Convention and of the deposit of instruments of ratification
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or accession, in accordance with Articles 48, 49 and 50;
2. of the date on which the present Convention will enter into force, in accordance with
Article 51.
Article 53
The original of the present Convention, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations, who shall send certified copies thereof to all States belonging to any of the
four categories mentioned in Article 48.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by
their respective Governments, have signed the present Convention.
DONE at Vienna, this eighteenth day of April one thousand nine hundred and sixty-one.
Case Concerning Avena and Other Mexican Nationals (Mexico v. USA) (March
31, 2004)
(Note: The paragraph numbers here are not reflective of the paragraph numbers in
the original decision)
1. MEXICO’S CLAIM. Mexico claims that the US has committed breaches of
the Vienna Convention in relation to the treatment of a number of Mexican
nationals who have been tried, convicted, and sentenced to death in
criminal proceedings in the US. These criminal proceedings have been
taking place in 9 different States of the US, namely California (28 cases),
Texas (15 cases), Illinois (3 cases), and one case each for Arizona,
Arkansas, Nevada, Ohio, Oklahoma, and Oregon between 1979 and the
present. There are 52 individuals in all (see paragraph 16 of the original
for all the names).
2. BASIS OF MEXICO’S CLAIM. Mexico relies on te Vienna Convention and
of the Optional Protocol providing for jurisdiction of the ICJ over “disputes
arising out of the interpretation or application” of the Convention. Mexico
and the US are, and were at all relevant times, parties to the Vienna
Convention and to the Optional Protocol.
3. WHY MEXICO WANTS TO SUE. The US authorities arrested and
interrogated these individuals had sufficient information at their disposal to
be aware of the foreign nationality of those individuals. According to
Mexico, in 50 of the specified cases, Mexican nationals were never
informed by the competent US authorities of their rights under Art. 36
(1b) of the Vienna Convention, and in the 2 remaining cases, such
information was provided “without delay”, as required by that provision.
Mexico has indicated that in 29 of the 52 cases, its consular authorities
learned of the detention of the Mexican nationals only after death
sentences had been handed down. In the 23 remaining cases, Mexico
contends that it learned of the cases through means other than notification
to the consular post as required by the same article.
4. MEXICO INSTITUTES PROCEEDINGS. Mexico instituted proceedings
against the US for “violations of the Vienna Convention on Consular
8
Relations”. Mexico based the jurisdiction of the Court on Article 36 (1) of
the Statute of the Court and on Article 1 of the Optional Protocol
Concerning the Compulsory Settlement of Disputes, which accompanies
the Vienna Convention.
5. PROVISIONAL MEASURES; GRANTED. Mexico also filed a request for
the indication of provisional measures which the Court granted: (1) that the
US shall take all necessary measures to ensure that Cesar Roberto Fierro
Reyna, Roberto Moreno Ramos, Osvaldo Torres Aguilera are not to be
executed pending final judgment; (2) that the US shall inform the ICJ of all
measures taken in implementation of the provisional measures ordered.
6. MEXICO SOUGHT TO INCLUDE 2 ADDT’L NATIONALS; DENIED. To
ensure the procedural equality of the parties, the ICJ decided not to
authorize a requested amendment by Mexico of its submissions so as to
include 2 addt’l Mexican nationals, while taking note that the US had made
no objection to the withdrawal of Mexico of its request for relief in 2 other
cases.
7. MEXICO’S MEMORIAL, ORAL ARGUMENTS. The Government of
Mexico respectfully requests the Court to adjudge and declare:
a. That the United States of America, in arresting, detaining, trying,
convicting, and sentencing the 52 Mexican nationals on death row
described in Mexico’s Memorial, violated its international legal
obligations to Mexico, in its own right and in the exercise of its
right to diplomatic protection of its nationals, by failing to inform,
without delay, the 52 Mexican nationals after their arrest of their
right to consular notification and access under Article 36 (1) (b) of
the Vienna Convention on Consular Relations, and by depriving
Mexico of its right to provide consular protection and the 52
nationals’ right to receive such protection as Mexico would
provide under Article 36 (1) (a) and (c) of the Convention;
b. That the obligation in Article 36 (1) of the Vienna Convention
requires notification of consular rights and a reasonable
opportunity for consular access before the competent authorities
of the receiving State take any action potentially detrimental to the
foreign national’s rights;
c. That the United States of America violated its obligations under
Article 36 (2) of the Vienna Convention by failing to provide
meaningful and effective review and reconsideration of
convictions and sentences impaired by a violation of Article 36
(1); by substituting for such review and reconsideration clemency
proceedings; and by applying the “procedural default” doctrine
and other municipal law doctrines that fail to attach legal
significance to an Article 36 (1) violation on its own terms;
d. That pursuant to the injuries suffered by Mexico in its own right
and in the exercise of diplomatic protection of its nationals,
Mexico is entitled to full reparation for those injuries in the form of
restitutio in integrum;
e. That this restitution consists of the obligation to restore the status
quo ante by annulling or otherwise depriving of full force or effect
the convictions and sentences of all 52 Mexican nationals;
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f. That this restitution also includes the obligation to take all
measures necessary to ensure that a prior violation of Article 36
shall not affect the subsequent proceedings;
g. That to the extent that any of the 52 convictions or sentences are
not annulled, the United States shall provide, by means of its own
choosing, meaningful and effective review and reconsideration of
the convictions and sentences of the 52 nationals, and that this
obligation cannot be satisfied by means of clemency proceedings
or if any municipal law rule or doctrine inconsistent with
paragraph (3) above is applied; and
h. That the United States of America shall cease its violations of
Article 36 of the Vienna Convention with regard to Mexico and its
52 nationals and shall provide appropriate guarantees and
assurances that it shall take measures sufficient to achieve
increased compliance with Article 36 (1) and to ensure
compliance with Article 36 (2).
8. US’ COUNTER-MEMORIAL, ORAL ARGUMENT. On the basis of the
facts and arguments made by the US in its Counter-Memorial and in these
proceedings, the Government of the USA requests that the Court, taking
into account that the United States has conformed its conduct to this
Court’s Judgment in the LaGrand Case (Germany v. United States of
America), not only with respect to German nationals but, consistent with
the Declaration of the President of the Court in that case, to all detained
foreign nationals, adjudge and declare that the claims of the United
Mexican States are dismissed.
9. MEXICO’S ANSWER TO US OBJECTION ON JURISDICTION (See #11).
The objections of the US are inadmissible as having been raised after the
expiration of the time-limit laid down by Art. 79 (1) of the Rules of Court as
amended in 2000.
10. ICJ, US OBJECTIONS SHOULD NOT BE EXLUCDED. However, the
Court notes that there are circumstances where the party failing to avail
itself of the Article 79 procedure on preliminary objections may forfeit the
right to bring a suspension of the proceedings on the merits, but can still
argue the objection along merits. This is what the US has done in this
case, since many of its objections are of such a nature that they would in
any event probably have had to be heard along with the merits. The Court
concludes that it should not exclude from consideration the objections of
the US to jurisdiction and admissibility by reason of the fact that they were
not presented within 3 months from the date of filing of the Memorial.
11. US OBJECTIONS TO ICJ JURISDICTION.
a. Mexican Memorial is fundamentally addressed to the treatment of
Mexican nationals in the US, and to the operation of the US
criminal justice system as a whole, and for the ICJ to address
such issues would be an abuse of its jurisdiction – OBJECTION
CANNOT BE UPHELD – The jurisdiction of the ICJ in this case
has been invoked under the Vienna Convention and Optional
Protocol to determine the nature and extent of the obligations
undertaken by the US and Mexico by becoming party to that
Convention. The Vienna Convention included commitments as to
9
the conduct of their municipal courts in relation to the nationals of
other parties. To determine if there has been a breach of the
Convention, the ICJ must be able to examine the actions of those
courts in light of international law.
b. Article 36 of the Vienna Convention “creates no obligations
constraining the rights of the US to arrest a foreign national”; and
that, similarly, the “detaining, trying, convicting, and sentencing”
of Mexican nationals could not constitute breaches of Article 36,
which merely lays down obligations of notification. – OBJECTION
CANNOT BE UPHELD – It calls for interpretation which may or
may not be confirmed on the merits.
c. Mexico is not entitled to restitution in integrum and the US is
under no obligation to restore the status quo ante because this
would intrude deeply into the independence of its courts, and that
for the ICJ to declare that the US is under a specific obligation to
vacate convictions and sentences would be beyond its jurisdiction
– OBJECTION CANNOT BE UPHELD – In the LaGrand case
(Germany v. US), where jurisdiction exists over a dispute on a
particular matter, no separate basis for jurisdiction is required by
the ICJ in order to consider the remedies a party has required for
the breach of the obligation.
d. The ICJ lacks jurisdiction to determine WON consular notification
is a human right, or to declare fundamental requirements of
substantive or procedural due process – OBJECTION CANNOT
BE UPHELD – This questions involves interpretation of the
Vienna Convention, for which it has jurisdiction.
12. US OBJECTIONS TO ADMISSIBILITY.
a. Mexico’s submissions are inadmissible because they seek to
have the ICJ function as a court of criminal appeal – OBJECTION
CANNOT BE UPHELD – This contention is addressed solely to
the question of remedies and is a matter of merits.
b. Mexico’s submissions are inadmissible because Mexico did not
exhaust local remedies – OBJECTION CANNOT BE UPHELD –
Mexico does not claim to be acting solely for its nationals but also
asserts its own claims, basing them on the injury which it
allegedly suffered, directly and through its nationals, as a result of
the violation of the US of the obligations incumbent upon it under
Art. 36 (1abc). The ICJ finds that, in these special circumstances,
Mexico may in submitting a claim in its own name, request the
ICJ to rule on the violation of rights which it claims to have
suffered both directly and through the violation of individual rights
conferred on Mexican nationals under Art. 36 (1b).
c. Mexico’s submissions are inadmissible because of the dual
nationality of some of the Mexican nationals who the US alleges
are also US nationals – OBJECTION CANNOT BE UPHELD –
Mexico, in addition to seeking to exercise diplomatic protection of
its nationals, is making a claim in its own right on the basis of the
alleged breaches by the US of the Vienna Convention.
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d. Mexico’s submissions are inadmissible because Mexico was in
considerable delay – OBJECTION CANNOT BE UPHELD – In
the case of Certain Phosphate Lands in Nauru (Nauru v.
Australia), the ICJ observed that “delay on the part of a claimant
State may render an application inadmissible”, but that
international law does not lay down any specific time-limit in that
regard. So far as inadmissibility might be based on an implied
waiver of rights, the ICJ considers that only a much more
prolonged and consistent inaction of Mexico than any that the US
has alleged might be interpreted as implying such a waiver. The
ICJ also notes that Mexico has indicated a number of ways in
which it brought to the attention of the US the breaches the latter
made.
e. Mexico’s submissions are inadmissible because Mexico should
not be allowed to invoke against the US standards that Mexico
itself does not follow in its own practice – OBJECTION CANNOT
BE UPHELD – Even if it were shown that Mexico’s practice as
regards the application of Art. 36 was not beyond reproach, this
would not constitute a ground of objection to the admissibility of
Mexico’s claim.
MERITS OF THE CASE
First off, here’s the Article in the Vienna Convention on Consular Relations that
figures in this case:
Article 36
Communication and contact with nationals of the sending State
1. With a view to facilitating the exercise of consular functions relating to nationals
of the sending State:
(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;
(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;
(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
10
action on behalf of a national who is in prison, custody or detention if he expressly
opposes such action.
2. 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.
1. FIRST ISSUE: AS TO NATIONALITY. The US claims that the duty under
Article 36 of the Vienna Convention on Consular Relations applies only to
Mexican nationals and not to those of dual Mexican/American nationality.
The Court held that as regards the 52 persons affected in this case, the
US had obligations under Article 36 as to all of them. This is because
Mexico has proven that these 52 people are Mexican nationals by
producing birth certificates and declarations of nationality while on the
other hand, the US was not able to demonstrate that some of them were
citizens of both the US and Mexico. The US has not met its burden of
proof.
2. SECOND ISSUE: AS TO DELAY. Mexico claims that the US failed to
provide the arrested persons with information as to their rights under Art.
36 (1b). The ICJ stated that Art. 36 (1b) contains three separate but
interrelated elements: (1) the right of the individual concerned to be
informed without delay of his rights under Article 36 (1b); (2) the right of the
consular post to be notified without delay of the individual’s detention, if he
so requests; and (3) the obligation of the receiving State to forward without
delay any communication addressed to the consular by the detained
person.
Both Mexico and the US have very different interpretations on the phrase
“without delay”. Mexico: “without delay” = requires “unqualified
immediacy”. In view of the object and purpose of Art. 36, which is to
enable “meaningful consular assistance” and the safeguarding of the
vulnerability of foreign nationals in custody, “consular notification must
occur immediately upon detention and prior to any interrogation of the
foreign detainee, so that the consul may offer useful advise about the
foreign legal system and provide assistance in obtaining counsel before
the foreign national makes any ill-informed decisions or the State takes
any action potentially prejudicial to his rights.”
US: “without delay” does not mean “immediately, and before interrogation”.
The purpose of Art. 36 was to facilitate the exercise of consular functions
by a consular officer. “The significance of giving consular information to a
national is thus limited. It is a procedural advise that allows the foreign
national to trigger the related process of notification. It cannot possibly be
fundamental to the criminal justice process”.
Court: “without delay” is not necessarily to be interpreted as “immediately”
upon arrest, nor can it be interpreted to signify that the provision of the
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notice must necessarily precede any interrogation, so that the
commencement of interrogation before the notification would be a breach
of Art. 36. The Court observes, however, that there is nonetheless a
duty upon the arresting authorities to give the information to an
arrested person as soon as it is realized that the person is a foreign
national, or once there are grounds to think that the person is
probably a foreign national. Applying this interpretation of “without
delay”, the Court finds that the US was in breach of its obligations to all but
one of the 52 individuals concerned.
3. INTERRELATIONSHIP BETWEEN SUBPARAGRAPHS OF ART. 36 (1).
As stated above, there are 3 elements in Art. 36 (1b). If a State breaches
its obligation under Art. 36 (1b) in not notifying the Consular Post of the
other state of the detention of the latter’s nationals, it also breaches Art. 36
(1a) because it precluded the consular officers of the other State to
communicate with and have access to their nationals, as well as Art. 36
(1c) because it precluded the consular officers of the other State from
visiting their detained nationals and from arranging for legal representation
of their nationals.
4. US VIOLATION OF ART. 36 (2). Mexico claims that US violated Art. 36
(2) by failing to provide meaningful and effective review and
reconsideration of convictions and sentences. Basically, the US applied
the “procedural default” rule which led to the default of some of the 52
Mexican nationals. This rule has previously been considered by the court
in the LaGrands case and as in this case, the rule prevented counsel for
the Mexicans (and for the LaGrands) to effectively challenge their
convictions and sentences. The Court therefore concludes that the US is
in violation of its obligations under Art. 36 (2).
5. WHAT WOULD BE ADEQUATE REPARATION FOR THE VIOLATIONS
OF ARTICLE 36? The remedy to make good these violations of its
obligations should consist in an requirement for the US to permit review
and reconsideration of these nationals’ cases by the US courts, with a view
to ascertaining whether in each case the violation of Art. 36 committed by
the competent authorities caused actual prejudice to the defendant in the
process of administration of criminal justice.
Partial or total annulment of conviction or sentence, as Mexico asserts,
should not be presumed as the necessary and sole remedy. In this case,
it is not the convictions and sentences of the Mexican nationals which are
regarded to be the violation of international law, but solely certain
breaches of treaty obligations.
6. VIENNA CONVENTIONS = HUMAN RIGHTS ??????? Mexico contends
that the right to consular notification and consular communication under
the Vienna Convention is a human right of such a fundamental nature that
its infringement will ipso facto produce the effect of vitiating the entire
process of the criminal proceedings conducted in violation of this
fundamental right. The ICJ observes that the question on WON the
Vienna Convention rights are human rights is not a matter that it need not
decide. The ICJ points out however that neither the text nor the object and
purpose of the Convention, nor any indication in the travaux préparatoires
11
support the Mexico’s conclusion. Thus, Mexico’s claim for restitution in
integrum and the claim for the restoration of the status quo ante by
annulling or otherwise depriving of full force or effect the conviction
and sentences of all 52 Mexican nationals cannot be upheld.
7. EXCLUSION IN SUBSEQUENT CRIMINAL PROCEEDINGS OBTAINED
PRIOR TO NOTIFICATION DENIED. Mexico claims that as an aspect of
restitution in integrum, it is entitled to an order that in any subsequent
criminal proceedings against the Mexican nationals, statements and
confessions obtained prior to the notification to the national of his right to
consular assistance be excluded. The ICJ denied this claim because it is
of the view that this questions is one which has to be examined under the
concrete circumstance of each case by the US courts concerned in the
process of their review and reconsideration.
8. MEXICO’S 7th SUBMISSION (REVIEW AND RECONSIDEARATION IF
CONVICTIONS ARE NOT ANNULLED). Mexico claims that if the
convictions or sentences are not annulled, the US shall provide, by means
of its own choosing, meaningful and effective review and reconsideration
of the convictions and sentences of the 52 nationals and that this
obligation cannot be satisfied by means of clemency proceeding or if any
municipal law rule or doctrine that fails to attach legal significance to an
Art. 36 (1) violation is applied.
The Court observes that in the current situation in US criminal procedure,
the application of the procedural default rule effectively limits the Mexican
nationals from seeking vindication of his rights except under the US
Constitution. Also, the US uses clemency proceedings which Mexico
argues is ineffective because clemency review is “standardless, secretive,
and immune from judicial oversight”.
The Court emphasizes that “review and reconsideration” prescribed by it
originally in the LaGrand case should be effective. Thus, it should take
account of the violation of the rights set forth in the Vienna Convention and
guarantee that the violation and the possible prejudice caused by the
violation will be fully examined and taken into account in the review and
reconsideration process. Lastly, review and reconsideration should be
both of the sentence and of the conviction. The ICJ agrees with Mexico
that the clemency process is not sufficient to serve as an appropriate
means of “review and reconsideration”.
9. MEXICO’S LAST SUBMISSION (FOR US TO ASSURE THAT IT SHALL
TAKE MEASURES SUFFICIENT TO ACHIEVE INCREASED
COMPLIANCE WITH ART. 36 (1) and ENSURE COMPLIANCE WIT ART.
36 (2). Mexico states that the US has failed to prevent the continuing
violation by its authorities of the consular notification and assistance rights.
The ICJ notes that the US has been making considerable efforts to ensure
that its law enforcement authorities provide consular information to every
arrested person they know or have reason to believe is a foreign national.
JUDGMENT OF THE COURT
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1.) 14 – 1 votes: The US breached its obligations under Art. 36 (1b)
by not informing the detained Mexican nationals of their rights
under 36 (1b).
2.) 14 – 1 votes: The US breached its obligations under Art. 36 (1b)
by not notifying the appropriate Mexican consular post without
delay of the detention of the Mexican nationals and thereby
depriving Mexico of the right to render assistance to the
individuals concerned.
3.) 14 – 1 votes: The US breached its obligations under Art. 36 (1a)
and (1c) by precluding Mexico of the right to communicate with
and have access to its nationals and to visit them in detention.
4.) 14 – 1 votes: The US breached its obligations under Art. 36 (1c)
by precluding Mexico of the right to arrange for legal
representation of its national.
5.) 14 – 1 votes: The US breached its obligations under Art. 36 (2) by
not permitting the review and reconsideration of the conviction
and sentences of Reyna, Ramos, and Aguilera.
6.) 14 – 1 votes: That the appropriate reparation in this case consists
in the obligation of the US to provide, by means of its own
choosing, review and reconsideration o the convictions and
sentences of the Mexican nationals, by taking account both of the
violation of the rights set forth in Art. 36 of the Vienna Convention.
7.) 15 – 0 votes: Takes note of the commitment undertaken by the
US to ensure implementation of the specific measures adopted in
performance of its obligations under Art. 36 (1b) of the Vienna
Convention and finds that this commitment must be regarded as
meeting the request by Mexico for guarantees and assurances of
non-repetition.
8.) 15 – 0 votes: Finds that should Mexican nationals nonetheless be
sentenced to severe penalties, without their rights under Art. 36
(1b) having been respected, the US shall provide, by means of its
own choosing, review and reconsideration of the conviction and
sentence, so as to allow full weight to be given to the violation of
the rights set forth in the Convention.

US Diplomatic & Consular Staff (US v. Iran)

Always will B