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II. AVENA AND OTHER MEXICAN NATIONALS {MEXICO v UNITED STATES OF AMERICA), PROVISIONAL MEASURES, ORDER OF 5 FEBRUARY 2003

Published online by Cambridge University Press:  17 January 2008

Sandy Ghandhi
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Abstract

The International Court of Justice is not a human rights court but it does hear human rights cases.1 This is hardly remarkable. As Professor Ian Brownlie has pointed out ‘[h]uman rights problems occur in specific legal contexts. The issues may arise… within the framework of a standard-setting convention, or within general international law.’2 Because human rights treaties normally have their own dispute settlement procedure, the situations in which the International Court of Justice is more likely to have to grapple with human rights issues lie within the realms of general international law or in non-human rights specific treaty provisions, which may, nevertheless, raise such issues. In addition, some human rights treaties, such as the Convention on the Prevention and Punishment of the Crime of Genocide 1948, contain provisions specifically referring disputes to the International Court of Justice.3 Thus, it should come as no surprise that the Court has been involved in a number of cases involving human rights questions.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 3 , July 2004 , pp. 738 - 746
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 For a thorough review of the Court's case law see Rodley, N ‘Human Rights and Humanitarian Intervention: the Case Law of the World Court’ (1989) 38 ICLQ 321;CrossRefGoogle ScholarSchwebel, SM ‘Human Rights in the World Court’, in Pathak, RS and Dhokalia, RP (eds) International Law in Transition: Essays in Memory of Judge Nagendra Singh (Dordrecht Martinus Nijhoff Publishers 1992), at 267.Google Scholarand Nagendra, SinghHuman Rights & the Future of Mankind (DelhiVanity Books 1981), at 21;Google Scholarsee in addition: Bedjaoui, M ‘A Propos de la Place des Droits de la Personne Humaine dans la Jurisprudence de la Cour International de Justice’, in Mahoney, P, Matscher, F, Petzold, H, and Wildhaber, L (eds) Protecting Human Rights: The European Perspective: Studies in Memory of Rolv Ryssdal (Koln Carl Heymans Verlag KG 2000), at 87.Google Scholarand Espiell, H Gros ‘Les Droits de l'Homme et la Cour International de Justice: une Vision Latino-Americaine’, in Ando, N, McWhinney, E, Wolfrum, R, and Roben, BB (eds)Liber Amicorum Judge Shigeru Oda (The HagueKluwer Law International 2002) vol 2, at 1449.Google Scholar

2 Principles of Public International Law (6th edn OxfordOUP 2003), at 530.Google Scholar

3 See Art IX which specifically refers disputes relating to the ‘interpretation, application, or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any other acts enumerated in Article III’ to the International Court of Justice at the request of any of the parties to the dispute.Google Scholar

4 Provisional Measures Order of 15 Dec 1979, ICJ Reports 1979, at 7; see also the Provisional Measures Order of 8 Apr 1993 and 13 Sept 1993 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 1993, at 3 and 325 respectively.Google Scholar

5 Provisional Measures Order of 5 Feb 2003, (2003) 42 ILM 309 and <http://www.icj-cij.org>..>Google Scholar

6 See Vienna Convention on Consular Relations (Paraguay v United States of America), Provisional Measures Order of 9 Apr 1998, ICJ Reports 1998, at 248, LaGrand (Germany v United States of America), Provisional Measures Order of 3 Mar 1999, ICJ Reports 1999(1), at 9 and LaGrand (Germany v United States of America), Judgment of 27 June 2001, ICJ Reports 2001, at 466. On the Breard and LaGrand cases, see in particular the commentaries in (1998) 92 AJIL 517 (1999) 93 AJIL 924, (1999) 48 ICLQ 673, (2002) 51 ICLQ 449, and (2002) 96 AJIL 210;Google Scholarsee also the series of articles on Breard in (1998) 92 AJIL 666–712;Google Scholarsee in addition: Mennecke, M and Tams, CJ ‘The Right to Consular Assistance under International Law: The LaGrand Case before the International Court of Justice’ (1999) 42 GYIL 192,Google ScholarMennecke, M ‘Towards the Humanization of the Vienna Convention: The LaGrand Case before the International Court of Justice’ (2001) 44 GYIL 430;Google Scholar for comparative purposes see Aceves, WC ‘The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law: Advisory Opinion OC-16/99 I-ACHR, 1 Oct 1999’ (2002) 94 AJIL 555.CrossRefGoogle Scholar

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11 ‘With a view to facilitating the exercise of consular functions relating to the nationals of a 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 also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.’Google Scholar

12 Order, para 2.Google Scholar

13 Order, para 3. The ‘procedural default’ rule precludes a defendant from raising a claim on appeal that was not raised in earlier proceedings in a lower court.Google Scholar

14 Order, paras 5, 6, and 7.Google Scholar

15 Order, para 8.Google Scholar

16 Ibid.

17 Art 41(1) reads: ‘[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.’ The Rules of Court may be found on the Court's website. Much literature has been generated on this provision and the similar provision in the Statute of the PCIJ. See in particular Thirlway, H ‘The Law and Procedure of the International Court of Justice 1960–1989’ (2001) 72 BYIL 37 (esp 111–26)Google Scholarand Oda, S ‘Provisional Measures: The Practice of the International Court of Justice’, in Lowe, V and Fitzmaurice, M (eds) Fifty Years of the International Court of Justice: Essays In Honour of Robert Jennings (CambridgeCUP 1996), at 542.Google Scholar

18 (1966) 999 UNTS 171 Art 6 reads in part: ‘1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ For the jurisprudence of the Human Rights Committee on this article, see Ghandhi, PR ‘The Human Rights Committee and Article 6 of the International Covenant on Civil and Political Rights’ (1989) 29 IJIL 326.Google Scholar

19 Order, paras 11, 12, 13, 14, and 15.Google Scholar

20 Order, paras 16 and 17.Google Scholar

21 Order, para 18. Mexico stressed the gravity and urgency of the situation. Mexico later informed the Court by letter dated 20 Jan 2003 that further to the decision of the Governor of Illinois to commute the death sentences of all convicted individuals awaiting execution in that state, it was withdrawing its request for provisional measures in respect of three named individuals, Messrs Hernandez, Urban, and Romero.Google Scholar

22 Mexico and the United States have been party to the Vienna Convention since 16 June 1965 and 24 Nov 1969 respectively, and to the Optional Protocol since 15 Mar 2002 and 24 Nov 1969 respectively, in each case without reservation.Google Scholar

23 Order, paras 38, 39, 40, 41, and 42.Google Scholar

24 Order, paras 45 and 46.Google Scholar

25 Order, para 47.Google Scholar

26 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Provisional Measures Order of 15 Mar 1996, ICJ Reports 1996(1), at 22, para 35.Google Scholar

27 LaGrand (Germany v United States of America), Provisional Measures Order of 3 Mar 1999, ICJ Reports 1999(1), at 15, para 25.Google Scholar

28 Order, para 48.Google Scholar

29 LaGrand (Germany v United States of America), Provisional Measures Order of 3 Mar 1999, ICJ Reports 1999(1), at 14–15, para 22.Google Scholar

30 Passage through the Great Belt (Finland v Denmark), Provisional Measures Order of 29 July 1991, ICJ Reports 1991, at 17, para 23; Order, paras 49 and 50.Google Scholar

31 Order, para 51.Google Scholar

32 LaGrand (Germany v United States of America), Provisional Measures Order of 3 Mar 1999, ICJ Reports 1999(1), at 14, para 19.Google Scholar

33 Breard v Greene (1998) 523 US 371, 378.Google Scholar

34 Order, paras 53 and 54.Google Scholar

35 Order, paras 55 and 56.Google Scholar

36 Order, para 59. Emphasis added. It should be observed that The International Herald Tribune of 8/9 Feb 2003 reported that the Texan state authorities were unwilling to implement the Order of the Court.Google Scholar

37 Declaration of Judge Oda, para 2.Google Scholar

38 Henkin, LThe Rights of Man Today (LondonStevens & Sons 1979) Preface.Google Scholar

39 ‘Only States may be parties in cases before the Court.’Google Scholar

40 International Law and Human Rights (New YorkF.A. Praeger 1950) 58.Google Scholar

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42 ‘The Committee may, prior to forwarding its views on the communication to the State Party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the violation’; see generally Ghandhi, PRThe Human Rights Committee and the Right of Individual Communication: Law and Practice (AldershotAshgate 1998), at 57–65.Google Scholar

43 See, eg, Piandiong et al v The Philippines, Mansaraj et al v Sierra Leone, and Saidov v Tajikistan, GAOR, A/56/40, Report of the Human Rights Committee, vol 1, paras 127–30; see also: Ashby v Trinidad and Tobago, GAOR, A/57/40, Report of the Human Rights Committee, vol 1, para 134; see also the Human Rights Committee's Draft General Comment on Art 2, CCPR/C/74/CRP4/Rev 3 (General Comments) para 19: ‘[f]ailure to implement provisional measures indicated by the Committee in cases under the Optional Protocol with a view to avoiding irreparable harm pending the Committee's consideration of a case should be regarded as incompatible with the obligation to respect in good faith the Covenant, in particular its Article 2 and the right of individual communication under the Optional Protocol.’ I am grateful to Sir Nigel Rodley, UK member on the Committee, for drawing this matter to my attention.Google Scholar