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I. Avena And Other Mexican Nationals {Mexico V United States Of America), Judgment Of 31 MARCH 2004

Published online by Cambridge University Press:  17 January 2008

Sandy Ghandhi
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Abstract

On 9 January 2003 Mexico instituted proceedings against the United States of America for violations of the Vienna Convention on Consular Relations 1963.1 Mexico based the jurisdiction of theCourt on Article 36(1) of the Statute of the Court which provides that:

Type
Current Developments
Information
International & Comparative Law Quarterly , Volume 54 , Issue 3 , July 2005 , pp. 779 - 787
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 (1963) 596 UNTS 261.Google Scholar

2 Emphasis added, for the sake of clarity.Google Scholar

3 Provisional Measures, Order of 5 February 2003; see the comment by Ghandhi, S ‘Avena and Other Mexican Nationals (Mexico v The United States of America), Provisional Measures, Order of 5 February 2003’ (2004) 53 ICLQ 738.CrossRefGoogle Scholar

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6 Judgment, para 49.Google Scholar

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8 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ Reports 1984, p 437, para 101.Google Scholar

9 Judgment, para 57.Google Scholar

10 (1969) 1155 UNTS 331.Google Scholar

11 Judgment, para 85.Google Scholar

12 Judgment, para 87.Google Scholar

13 Judgment, para 88, emphasis added.Google Scholar

14 Judgment, para 90.Google Scholar

15 Judgment, para 91.Google Scholar

16 LaGrand case, ICJ Reports 2001, p 492, para 74.Google Scholar

17 The Court remarked that it was immaterial whether Mexico would have offered consular assistance, ‘or whether a different verdict would have been rendered. It is sufficient that the Convention conferred those rights’ (judgment, para 102); see also LaGrand case, ICJ Reports, 2001, p 492, para 74.Google Scholar

18 Judgment, para 104.Google Scholar

19 The unchallenged definition of this rule by Mexico stated: ‘a defendant who could have raised, but fails to raise, a legal issue at trial will generally not be permitted to raise it in future proceedings, on appeal or in a petition for a writ of habeas corpus’; the rule requires exhaustion of remedies, inter alia, at the State level and before a habeas corpus motion can be filed with federal courts; judgment, para 111.Google Scholar

20 ‘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’.Google Scholar

21 LaGrand case, ICJ Reports 2001, p 497, para 90.Google Scholar

22 Judgment, para 113.Google Scholar

23 Judgment, para 114.Google Scholar

24 Factory at Chorzow, Jurisdiction, 1927 PCIJ, Series A, No.9, p.21.Google Scholar

25 Factory at Chorzow, Merits, 1928 PCIJ, Series A, No. 17, p.47.Google Scholar

26 Judgment, para 121. See also LaGrand case, ICJ Reports 2001, pp.513–514, para 125.Google Scholar

27 Judgment, para 127.Google Scholar

28 See judgment, para 129 for the precise submission.Google Scholar

29 Judgment, paras 131 & 138; see also LaGrand case, ICJ Reports 2001, p 516, para 128 and p 514, para 125.Google Scholar

30 Judgment, paras 139, 140 & 141.Google Scholar

31 Herrera v Collins, 506 US 390 (1993), pp 411–412.Google Scholar

32 Judgment, para 148.Google Scholar

33 Judgment, paras 149 &150; see also LaGrand case, ICJ Reports 2001, pp 512–513, para 124.Google Scholar

34 Judgment, para 124. The argument presumably being that in death penalty cases, this should result inevitably in commutation of the death sentence; see, for example, the jurisprudence of the Human Rights Committee in this regard; see further, Ghandhi, PR, ‘The Human Rights Committee and Article 6 of the International Covenant on Civil and Political Rights’ (1989) 29 IJIL 326.Google Scholar

35 Judgment, para 124.Google Scholar

36 Mennecke, M, ‘Towards the Humanization of the Vienna Convention of Consular Rights — The LaGrand Case before the International Court of Justice’ (2001) 44 GYIL 430 at 453.Google Scholar

37 GA Res A/Res/45/158.Google Scholar

38 Torres v The State of Oklahoma, No PCD - 04-442, 13 May 2004.Google Scholar

39 www.acluok.org/NewsEvents/OsbaldoTorresClemency.htmGoogle Scholar

40 (2004) 53 ICLQ 738 at 746.CrossRefGoogle Scholar