## Facts

- Mexico filed an interstate case against the United States concerning failures to comply with consular-notification obligations under the Vienna Convention on Consular Relations (VCCR) in capital prosecutions of Mexican nationals in U.S. state courts.
- Mexico’s application ultimately concerned 52 Mexican nationals sentenced to death; Mexico alleged they were arrested, detained, tried, convicted, and sentenced without being informed “without delay” of their right to consular assistance and without timely notice to Mexican consular officials.
- Mexico sought provisional measures to prevent executions pending judgment; the court ordered the United States to take all measures necessary to prevent execution of three named individuals and to report on steps taken.
- The United States raised objections to jurisdiction and admissibility, including arguments tied to diplomatic protection and exhaustion of local remedies.
- Mexico requested remedies including restitution (vacatur/annulment and retrial), arguing domestic procedural rules had prevented meaningful consideration of Article 36 violations.

## Issues

1. Whether the court had jurisdiction under the VCCR Optional Protocol and whether Mexico’s claims were admissible despite objections framed as diplomatic protection and local-remedies arguments.
2. Whether the United States breached VCCR Article 36(1)(b) by failing to inform detained Mexican nationals without delay of consular rights and by failing to notify Mexico upon request.
3. Whether the United States breached VCCR Article 36(1)(a) and (c) by failing to enable consular access and assistance, including arrangements for legal representation.
4. Whether application of domestic “procedural default” rules breached VCCR Article 36(2) by preventing full effect to Article 36 rights.
5. Whether Article 36 confers individual rights enforceable through interstate proceedings, and what form of reparation is required.

## Decision

- The court held it had jurisdiction under the Optional Protocol’s compulsory jurisdiction clause for disputes concerning interpretation or application of the VCCR and rejected the principal admissibility objections.
- The court found the United States violated Article 36(1)(b) in 51 cases by failing to provide without-delay notice of consular rights and, in 49 of those, failing to notify Mexican consular officials.
- The court found violations of Article 36(1)(a) and (c) in 34 cases by failing to enable consular access and assistance, including the ability to arrange legal representation.
- In three cases with completed domestic proceedings, the court held that procedural-default application prevented meaningful consideration of Article 36 violations, breaching Article 36(2).
- As reparation, the court ordered the United States to provide, by means of its choosing, effective “review and reconsideration” of the convictions and sentences, taking account of the Article 36 violations and not using procedural default to nullify that review.
- The court declined to order automatic annulment, retrials, or vacatur as the required remedy.

## Legal Principles

- The VCCR Optional Protocol confers compulsory jurisdiction over disputes arising out of the interpretation or application of the VCCR.
- VCCR Article 36(1) requires the receiving state to inform detained foreign nationals without delay of the right to consular notification and communication, and to notify the consulate if the national so requests.
- Article 36 confers rights on detained individuals as well as on the sending state; the sending state may invoke responsibility for breaches of those rights through interstate proceedings.
- Under Article 36(2), domestic law and procedure must permit full effect to the purposes of Article 36 rights; domestic doctrines cannot be applied to foreclose meaningful consideration of proven Article 36 violations.
- The responsible state must provide an effective remedy tailored to the breach; for Article 36 violations in capital cases, the minimum required reparation is effective review and reconsideration of conviction and sentence that accounts for the violation and potential prejudice.

## Conclusion

The court held that U.S. authorities repeatedly violated VCCR Article 36 consular-notification and consular-access obligations toward Mexican nationals in capital cases and that domestic procedural default, when used to block meaningful consideration of those violations, failed to give full effect to Article 36. The United States was required to ensure effective review and reconsideration of affected convictions and sentences, without mandating automatic vacatur or retrial.


Avena & Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (2004)