Amicus Curiae Brief — Medellin v. Dretke

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| Supreme Cour, US.)

FILED

i) JAN 24 2005

/2 Pin

No. 04-5928

IN THE

Supreme Court of the United States

JOSE ERNESTO MEDELLIN,

Petitioner.

\ 2

DOUG DRETKE, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE GOVERNMENT OF

THE UNITED MEXICAN STATES IN SUPPORT OF

PETITIONER JOSE ERNESTO MEDELLIN

SANDRA L. BABCOCK

2520 Park Avenue South

Minneapolis, MN 55404

(612) 871-5080

Counsel of Record for

Amicus Curiae

ae a SP SEED

TABLE OF CONTENTS

TABLE OF AUT IRORIT IES. .....cccocesceccsecccsssessereossecssecevecsesss il

INTEREST OF AMICUS CURIAE ..00.........cccccccccceeseeseeeeeees l

SUMMARY OF ARGUMENT .....0..........cccssecssesseeesseeeeenees 2

IT eectcicosLiciiphineacaceaiatcetiesunishininiiliebieaadaiaiunitadeiaaiinreincaiteed 4

I. The United States and Mexico Have Consistently

Recognized That When a Dispute Is Submitted by

Mutual Consent to an International Tribunal, the

Resulting Judgment Is Binding. ..................::ccccceeeeeeees 4

Il. The Protection of Nationals Abroad Has Long Been a

Priority of Both Mexico and the United States........... 1]

A. Mexico Has an Active and Longstanding Tradition of

Providing Extensive Consular Services to Its

FOIE cent covituiadniinccissenaiidnatiguiincibinbabedasibapiibcnnnbiods 12

B. The United States Has Been a Forceful Advocate for

the Consular Rights of American Citizens Detained in

UNE seiccenttsiasicehcsitainiesepmicedatiicaeibibonnpiiiambssiiibdaunainiaietts 17

Ill. The International Court of Justice Issued a Binding

Judgment that Adjudicated the Rights of Individual

SONU SHRINE, cn ceniscciisecpnstntnvoscnveinctpiviasbtinaianitennpiints 20

IV. The United States Is Obligated to Fully Implement the

I Bs sect iccieiiiigcivtiieinenniitatihiitnanaietntiniaee 28

TABLE OF AUTHORITIES

Federal Cases

Breard v. Greene, 523 U.S. 371 (1998)........cccccccccceceeeeeeeees 29

Frelinghuysen v. United States ex rel. Key, 110 U.S. 63

(BBB). ...v..0coesecvesesseseoseeenennisisnniinseassennsnainnnnnnnnnnnEE 6, 7

Hines v. Davidowitz, 312 U.S. 52 (1941) ....ccccccccceeeeeeeeeeeees 20

La Abra Silver Mining Company v. United States, 175 U.S.

423 (1GDD).....00caceccsveseccesaccesssusnecnseubeenusininnnnnnnnnnnnn 7

United Mexican States v. Woods, 126 F.3d 1220 (9th Cir.

$997) ...cccccecovceeeeesseeuemeseneieilseneienieainnsiinnnnnnninnnnnnnEnE 22

Williams v. Taylor, 529 U.S. 362 (2000) ..........cccccceceeeeeeeees 22

State Cases

Respondent's Proposed Findings of Fact, Conclusions of

Law, and Order, No. 675430-A (339th Dist. Ct., Tex. Jan.

Sb, BUT ) ......-c0vereecveeseresncneonpunenstensanieninninninnnnnnnnnn 22

Torres v. State, No. PCD-04-442 (Okla. Crim. App. May 13,

BUG) .........ccccescsecosseosenesseneesosecetensenaneenseininnnnnnnnnnnnnnnEE 14

Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2001)....... 15

International Cases

Avena and Other Mexican Nationals (Mex. v. U.S.), 2004

EEE Se passim

B.E. Chattin (United States v. Mexico), Opinions of the

Commissioners 422 (1926).............:::cccccccececeeeeeeeeeeeceeeees 18

Francisco Quintanilla (Mexico v. United States), Opinions

of the Commissioners 136 (1926) ...............:ccccceececeeeeeeeees 5

Harry Roberts (United States v. Mexico), Opinions of the

Commissioners 100 (1926)............ccccccccccceeeeeeeeeeeseceeeeeees 18

Metalclad Corp. v. United Mexican States, \CSID Case No.

ARB(AF)/97/1 (ICSID AF) (Aug. 30, 2000).............. 5,10

OC-16/99, Inter-Am. Ct. H.R. (Oct. 1, 1999).......000.00. 22

Walter H. Faulkner (United States v. Mexico), Opinions of

the Commissioners 86 (1926)..............:cccccccceeeeeeeeeeeeeeeees 18

Treaties

Air Transport Agreement Between the Government of the

United States of America and the Government of the

United Mexican States, Aug. 15, 1960, U.S.-Mex., 12

Consular Convention Between the United Mexican States

and the United States of America, Aug. 12, 1942, U.S.-

a csnsentsadvonqnneoosee 11

Convention Between the United States of America and the

Republic of Mexico for the Adjustment of Claims, July 4,

oe i SR ee 6

Convention for the Arbitration of the Chamizal Case, June

24, 1910, U.S.-Mex., 36 Stat. 2481 ...........................eeeeeee s

Convention for the Avoidance of Double Taxation and the

Prevention of Fiscal Evasion with Respect to Taxes on

Income, Sept. 18, 1992, U.S.-Mex., 1992 U.S.T. LEXIS

SUP cicenccnersseenatiiatindagisenntaichisiniabannieaidandiainiiapdlilumiaaa cael 3

Convention for the Solution of the Problem of the Chamizal,

U.S.-Mex., Aug. 29, 1963, 15 U.S.T. 21 .0.........ceeeeeeeees 10

Convention on the Prohibition of the Development,

Production, Stockpiling and Use of Chemical Weapons

and on their Destruction, opened for signature Jan. 13,

Ses OG Ce ale Qicccnesiinhnstamercescisidiiigdiiammiaia ids 3

General Claims Convention, Sept. 8, 1923, U.S.-Mex., 43

BNO, FFs ccsuntosctniacciipmppeiiicesitninapeinadinitinlddialiiciien ee eatle 18

International Convention for the Prevention of Pollution of

the Sea by Oil, opened for signature May 12, 1954, 12

DO Be a te ate ae 3

North American Free Trade Agreement, Dec. 17, 1992, U.S.-

oe Gt Ren ee 10

Optional Protocol Concerning the Compulsory Settlement of

Disputes, art. 1, opened for signature Apr. 24, 1963, 21

Lan Bs Me veccrsstentuiitiniatihianenssiniidsitiaeniisanicanmaiaainaiel passim

Protocol for the Adjustment of Certain Contentions Arising

Under What is Known as the "Pious Fund of the

Californias,” May 22, 1902, U.S.-Mex., 9 Bevans 12, 1902

CE Faas UI OI? dennecsmensijecctaniannineniicaianticindendpiiabuéatinstiotn 8

Statute of the International Court of Justice, 59 Stat. 1055,

U.N. Charter, opened for signature Jun. 26, 1945, 59 Stat.

DER, tls BA Divi icicscicccinatinaninapiniccateatiiinasipesebcaimmuniiicaea 28

United Nations Convention Against Dlicit Traffic in Narcotic

Drugs and Psychotropic Substances, opened for signature

Dec. 20, 1988, 1988 U.S.T. LEXIS 194 0000.0... ce eeecseeeees 3

Universal Copyright Convention, opened for signature Sept.

HE & de: | Re eer ae 3

Vienna Convention on Consular Relations, opened for

signature Apr. 24, 1963, 21 U.S.T. 77 ......ccccccceeeees passim

Other Authorities

A.H. FELLER, THE MEXICAN CLAIMS COMMISSIONS (1935).5,

A.M. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS 653

ALAN C. LAMBORN & STEPHEN P. MUMME, STATECRAFT,

DOMESTIC POLITICS, AND FOREIGN POLICY MAKING: THE

EL CHAMIZAL DISPUTE (1988) ...........cccccccsscssseseeserceceees 8,9

AMERICAN BAR ASSOCIATION, STANDARDS FOR THE

APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN

DEATH PENALTY CASES (2003 )............0:cccccccceseseceeeeeeeeees 22

ANTONIO GOMEZ ROBLEDO, MEXICO Y EL ARBITRAJE

I Fe iaiteiccehanicnittaiitntaiiiiindiiatlitiantteaiia aliietis Y

Convention With Mexico for Solution of the Problem of the

Chamizal: Hearings Before the Committee on Foreign

Relations, United States Senate, 88" Cong. (1963)....9, 10

Counter-Memorial of the United States of America (Mex. v.

U.S.), 2003 LC.J. Pleadings (Avena and Other Mexican

XR RR oe 17, 24

Eve on Investors, Mexico Pays U.S. Company, N. Y. TIMES,

Se ioe re een Fae SU 8 10

FRANCIS J. WEBER, THE UNITED STATES VERSUS MEXICO:

THE FINAL SETTLEMENT OF THE PIOUS FUND (1969) ....8, 9

FREDERICK DUNN, THE DIPLOMATIC PROTECTION OF

AMERICANS IN MEXICO (1933)............cccccceeeeeeeees 4, 5,6, 18

HOWARD N. MEYER, THE WORLD COURT IN ACTION:

JUDGING AMONG THE NATIONS (2002)..............cccccccceeeeees 8

J. Palerm, B.R. Vincent, and K. Vincent, Mexican

Immigrants in Courts, in IMMIGRANTS IN COURTS (Joanne

IT Oe, I i ia ele 14

JOHN BASSETT MOORE, 4 INTERNATIONAL ARBITRATIONS TO

WHICH THE UNITED STATES HAS BEEN A PARTY (1898)5, 6

Memorial of Mexico (Mex. v. U.S.), 2003 L.C.J. Pleadings

(Avena and Other Mexican Nationals) ( June 20, 2003) 13,

21, 22, 23

Mexico’s Application Instituting Proceedings, (Mex. v.

U.S.), 2003 L.C.J. Pleadings (Avena and Other Mexican

ey Ga, Wis ee inccticibinsendicicsinetebianlnntichatiasdiihaniciiiaiins 23

President’s Message to the Senate Transmitting the

Convention for the Solution of the Problem of the

Chamizal, 88 Cong. (1963).......c.cccssssessssseesesseseeseeseesees 10

Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire,

Fe ec BU, COUR, Bh, Bie icccnsnsvsctepstusintiniiiakdsiassnisabtadieibinien 15

REPORT OF JACKSON H. RALSTON, IN THE MATTER OF THE

CASE OF THE PIOUS FUND OF THE CALIFORNIAS (1902) 7, 8

Reports of International Arbitral Awards, v. IX at 5, U.N.

ORS BE Se oe CD ceciecencteintdttcesptnieneitininibctnintabntar 7

SHELDON B. Liss, A CENTURY OF DISAGREEMENT: THE

CHAMIZAL DISPUTE (1965).........cccccccccccccccccccceceseresseneeerees y

Summary Records of Plenary Meetings and of the Meetings

of the First and Second Committees, U.N. Conference on

Consular Relations, U.N. Doc. AS,CONF.25/16 (1963).. 12

Transcript of the President's News Conference on Foreign

and Domestic Matters, N.Y. TIMES, Jul: 6, 1962 .......... 10

Two Mexicans Die in Electric Chair, N.Y. TIMES, Jan. 28,

Ni Sees Cid oR EEN at Repl ye 8) Po 14

Vil

U.S. Boundary Relations, 3 Whiteman DIGEST §30 (1964)..4

U.S. Citizens Imprisoned in Mexico: Hearings before the

Subcommittee on International, Political and Military

Affairs, 94 Cong. (1975) ....c.ccscssesssssssessessesesseseneeees 19, 20

U.S. DEPARTMENT OF STATE, CONSULAR NOTIFICATION AND

ACCESS, FOREIGN EMBASSIES AND CONSULATES IN THE

tRNA SE SS PIES eee eae a RRR a et 13

William Aceves, The Vienna Convention on Consular

Relations: A Study of Rights, Wrongs and Remedies, 31

VAND. J. TRANSNAT’L L. 257 (1998)..00....c.cccccccceceeeeeeeees 15

Vill

INTEREST OF AMICUS CURIAE’

By signing and ratifying the Vienna Convention on

Consular Relations, opened for signature Apr. 24, 1963, 21

U.S.T. 77, the Government of Mexico and the Government of

the United States made commitments to each other, to their

other treaty partners, and to the rule of law. Specifically, the

United States promised that detained Mexican nationals would

be promptly notified of their right to seek consular assistance,

and that Mexico would be permitted to provide consular

protection to those nationals. In tum, Mexico promised to

extend those same rights to the United States and its nationals

detained in Mexico. And by signing and ratifying the Optional

Protocol to the Vienna Convention, the Government of Mexico

and the Government of the United States agreed that

irreconcilable disputes over the interpretation and application of

the treaty’s provisions would be resolved by the International

Court of Justice (“ICJ”). Optional Protocol Concerning the

Compulsory Settlement of Disputes, art. 1, opened for signature

Apr. 24, 1963, 21 U.S.T. 325.

On March 31, 2004, the International Court of Justice

rendered its judgment in Avena and Other Mexican Nationals.

The ICJ held that the United States had violated the rights of

Mexico and of Mr. Medellin under Article 36 of the Vienna

Convention. As a remedy for those violations, the ICJ held that

' No person or entity other than the Government of Mexico or its counsel

made a monetary contribution to the preparation or submission of this brief.

Counsel for Petitioner has not authored this brief in whole or in part.

Petitioner and Respondent have each consented in writing to the filing of this

amicus brief.

the United States must provide Mr. Medellin with meaningful

review and reconsideration of his conviction and sentence that

gives full effect to the purposes of Article 36. Despite the ICJ’s

judgment, the Court of Appeals below refused even to grant a

certificate of appealability to review Mr. Medellin’s claims

under the Vienna Convention and the Avena judgment,

brushing aside the legal obligation of the United States to abide

by the remedial decree entered against it in an international

adjudicative proceeding that it had agreed by treaty to accept as

binding.

Mexico has a direct interest in compliance by the United

States with the Avena judgment. The very purpose of Article

36 is to permit the nations that signed the Vienna Convention —

including Mexico, the United States, and 164 other countries —

to protect the interests of their citizens when they are arrested or

otherwise detained while living, working, or traveling abroad.

That interest is most acute when a citizen is facing trial in

another country for a crime that may lead to his execution.

SUMMARY OF ARGUMENT

When Mexico and the United States agreed to submit to

the jurisdiction of the International Court of Justice, both parties

recognized that thy would be bound by the Court’s final

judgment. The two countries are both party to over 50

instruments that provide international dispute resolution

mechanisms. Indeed, over the last two centuries, Mexico and

“ The subject matter of these treaties encompasses topics as diverse as

taxation, see Convention for the Avoidance of Double Taxation and the

Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18,

the United States have settled hundreds of disputes in this

manner.’ While the facts of the cases, the composition of the

tribunals, and the rules of procedure have differed, each country

has consistently recognized that when it commits itself to

resolve a dispute by submitting to the jurisdiction of an

international tribunal, it agrees to be bound by the result.

In recent years, Mexico and the United States have

disagreed on the scope of the rights established by Article 36.

After the two nations failed to resolve their differences through

diplomatic channels, Mexico exercised its right to submit the

dispute to the International Court of Justice for binding

resolution. In doing so, Mexico expressly invoked the rights of

its nationals and sought specific remedies on their behalf in its

exercise of diplomatic protection. The ICJ weighed the

arguments of the parties and the facts of each Mexican

national’s case, and issued a carefully reasoned judgment

1992, U.S.-Mex., art. 26, 1992 U.S.T. LEXIS 193; copyrights, see Universal

2731; narcotics, see United Nations Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances, opened for signature Dec. 20,

1988, art. 32, 1988 U.S.T. LEXIS 194, *80-81; pollution, see International

Convention for the Prevention of Pollution of the Sea by Oil, opened for

signature May 12, 1954, art. XIII, 12 U.S.T. 2989; aviation, see Air

Transport Agreement Between the Government of the United States of

America and the Government of the United Mexican States, Aug. 15, 1960,

art. 13, U.S.-Mex., 12 U.S.T. 60; and chemical weapons, see Convention on

the Prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on their Destruction, opened for signature Jan. 13,

1993, art. XIV, 14 U.N.T.S. 45.

* For a partial list of arbitrations to which each country has submitted, see

A.M. STUYT, SURVEY OF INTERNATIONAL ARBITRATIONS 653, 636-37

(1990).

adjudicating the rights of Mr. Medellin and 51 other Mexican

nationals, thereby settling the dispute that had, at times, strained

relations between the two nations.

Under both international and United States law, the

Avena judgment constitutes a binding adjudication of Mr.

Medellin’s rights that the United States must fully implement.

Mexico respectfully requests that this Court correct the

judgment of the Court of Appeals and instruct the lower courts

of the United States to comply with the judgment of the

International Court of Justice.

ARGUMENT

1. The United States and Mexico Have Consistently

Recognized That When a Dispute Is Submitted by

Mutual Consent to an International Tribunal, the

Resulting Judgment Is Binding.

As neighbors and trading partners, the United States and

Mexico have an extraordinarily close relationship. Inevitably,

the two nations have differed on matters ranging from boundary

lines and trade practices to the treatment of each country’s

nationals. When such disagreements have arisen, Mexico and

the United States have attempted to resolve them amicably,

often through arbitration. Arbitration has staved off armed

conflict,* resolved boundary disputes,” and indemnified private

* See, e. g., FREDERICK DUNN, THE DIPLOMATIC PROTECTION OF AMERICANS

IN MEXICO 10-27 (1933).

> See U.S. Boundary Relations, 3 Whiteman DIGEST §30, at 680-84 (1964)

investors® as well as individuals who claimed personal injury’

or denial of due process.* Both countries have benefited from

international arbitration of their disputes. This may explain

why “the history of the relations between the United States and

Mexico shows a constant endeavor to resort to this means of

settlement.” A.H. FELLER, THE MEXICAN CLAIMS

COMMISSIONS | (1935).

Conflicts over the treatment of United States citizens in

Mexico were a recurring theme in early diplomatic relations

between the two countries. DUNN, supra, at 1-2. In the mid-

nineteenth century, United States citizens flocked to Mexico in

great numbers. FELLER, supra, at 1. Many complained they

were subjected to unequal treatment, illegally detained,

deprived of due process, or otherwise wronged by Mexican

authorities.” They sought protection from the United States

government, which in turn pressed their claims upon the

Government of Mexico. See, e.g., DUNN, supra, at 18-19. The

frequency with which such claims were brought by the United

States against Mexico led one commentator to observe that

(describing the agreement of the United States to abide by the terms of

arbitral judgment regarding disputed tract of land known as “E] Chamizal” in

El] Paso, Texas).

® See Metalclad Corp. v. United Mexican States, ICSID Case No.

ARB(AF)/97/1 (ICSID AF) (Aug. 30, 2000) [hereinafter Metalclad”}.

” See Francisco Quintanilla (Mexico v. United States), Opinions of the

Commissioners 136 (1926).

® See JOHN BASSETT MOORE, 4 INTERNATIONAL ARBITRATIONS TO WHICH

THE UNITED STATES HAS BEEN A PARTY 3251 (1898).

* See generally id. at 3235-3252.

“[t]he subject of the claims of foreign nationals plays a more

important role in the history of the foreign relations of Mexico

than in that of any other country.” FELLER, supra, at 1.

Diplomacy proved unable to resolve these disputes, and

the unsettled claims of United States citizens in Mexico were

cited as justification for war with Mexico in 1846. See DUNN,

supra, at 45-49. After the war, United States citizens continued

to allege mistreatment by Mexican authuities. This time, the

two nations signed the Claims Convention of 1868, which

established a Commission to hear the claims of both Mexican

and United States citizens for property damage, personal injury,

and wrongful detention.'” Convention Between the United

States of America and the Republic of Mexico for the

Adjustment of Claims, July 4, 1868, U.S.-Mex., art. II, 115 Stat.

679, 681. After reviewing more than 2,000 claims, the

Commission entered judgments against Mexico totaling over

$4,000,000.00, a sum far greater than that assessed against the

United States. FELLER, supra, at 6. Mexico promptly complied

with the Commission’s judgment. See Frelinghuysen v. United

States ex rel. Key, 110 U.S. 63, 67 (1884) (“the government of

Mexico has promptly and in good faith met its annual

payments’); DUNN, supra, at 112.

Mexico never disputed its legal obligation to comply

with the judgments of the 1868 Claims Commission, even in

10 See, e.g., MOORE, supra, at 3243-44 (describing the wrongful

imprisonment claim of A.H. Halstead, which resulted in an arbitral :udgment

of $1,600.00); id. at 3247 (describing the arbitrary detention claim of

William P. Barnes, resulting in arbitral judgment of $5,100.00); id. at 3251

(describing the wrongful detention claim of Augustus Jonan, resulting in

arbitral judgment of $35,000.00 in Mexican gold).

the face of compelling evidence that some claims were

fraudulent.'' See La Abra Silver Mining Company v. United

States, 175 U.S. 423, 458 (1899); Frelinghuysen, 110 U.S. at 67

(1884). In Frelinghuysen, the Court accepted that the

judgments of arbitral tribunals “are final and conclusive until

set aside by agreement between the two governments.” 110

U.S. at 67. The Court further observed that “Mexico cannot,

under the terms of the treaty, refuse to make the payments at the

times agreed on if required by the United States. This she does

not seek to do.” Jd. at 467-68.

Mexico and the United States have also resorted to

international arbitration to resolve economic disputes. In the

case of the Pious Fund of California, the Claims Commission

awarded the Catholic church of California the sum of

$904,070.79, which Mexico paid in full. REPORT OF JACKSON

H. RALSTON, IN THE MATTER OF THE CASE OF THE PIOUS FUND

OF THE CALIFORNIAS 5 (1902). But the matter did not end there.

The United States contended that Mexico owed additional

-interest on the fund,’ and in an attempt to resolve the dispute,

both nations agreed to submit to the jurisdiction of the

'! Article 2 of the Claims Convention provided that “(t}he president of the

United States. . . and the president of the Mexican republic hereby solemnly

and sincerely engage to consider the decision of the commissioners

conjointly, or of the umpire, as the case may be, as absolutely final and

conclusive upon each claim decided upon by them or him respectively, and

to give full effect to such decision without any objection, evasion, or delay

whatsoever.” 15 Stat. 679.

'? Reports of International Arbitral Awards, v. IX at 5, U.N. Sales No.

59.V.5 (1948).

Permanent Court of Arbitration at The Hague.'? The Pious

Fund case was the first judgment issued by the newly-

established tribunal. HOWARD N. MEYER, THE WORLD COURT

IN ACTION: JUDGING AMONG THE NATIONS 24 (2002). The

Permanent Court of Arbitration issued a unanimous judgment

against Mexico on October 14, 1902. Mexico was ordered to

pay a lump sum of $1,460,682.67, and to make annual

payments of $43,050.99 in perpetuity. RALSTON, supra, at 15-

16. Mexico complied with the judgment, which has now been

paid in full. See FRANCIS J. WEBER, THE UNITED STATES

VERSUS MEXICO: THE FINAL SETTLEMENT OF THE PIOUS FUND

53 (1969).

The commitment of both nations to peaceful dispute

resolution through arbitration wavered only once, and the

results were disastrous. In 1910, the United States and Mexico

agreed to arbitration to resolve a long-running border dispute in

E] Paso, Texas. Convention for the Arbitration of the Chamizal

Case, June 24, 1910, U.S.-Mex., 36 Stat. 2481. The

Convention established that the decision of the arbitral

commission would be “final and conclusive upon both

Governments, and without appeal.” 36 Stat. 2483.

Nevertheless, when the Commission awarded a large portion of

the disputed tract to Mexico, the United States refused to

comply with the judgment. ALAN C. LAMBORN & STEPHEN P.

MUMME, STATECRAFT, DOMESTIC POLITICS, AND FOREIGN

POLICY MAKING: THE EL CHAMIZAL DISPUTE 54-55 (1988).

'* See Protocol for the Adjustment of Certain Contentions Arising Under

What is Known as the "Pious Fund of the Californias,” May 22, 1902, U.S.-

Mex., 9 Bevans 12, 1902 U.S.T. LEXIS 50. Article XIV of the Protocol

provided that “the award ultimately given hereunder shall be final and

conclusive as to the matters presented for consideration.”

The effects of this decision upon bilateral relations were

“significant and lasting,” and the United States’ refusal to

comply became “an integral part of almost every diplomatic

issue arising between the two nations” for the following 52

years." SHELDON B. Liss, A CENTURY OF DISAGREEMENT:

THE CHAMIZAL DISPUTE 30 (1965). In addition to souring

relations between the two countries, see id. at 77, the United

States’ reaction to the judgment led Mexico to reject arbitration

as a method of resolving disagreements with United States and

British oil companies after President Lazaro Cardenas

nationalized the Mexican oil industry in 1938. /d. at 75, 100.

In addition, it led Mexico to temporarily suspend its compliance

with the Pious Fund judgment entered by the Permanent Court

of Arbitration.'" See LAMBORN AND MUMME, supra, at 171;

ANTONIO GOMEZ ROBLEDO, MEXICO Y EL ARBITRAJE

INTERNACIONAL 101 (1965).

In 1963, the United States finally recognized the

Chamizal arbitral award. See Liss, supra, at 89. In announcing

the decision to comply with the Commission’s judgment,

President Kennedy acknowledged the United States had been

'* In 1925, the United States rejected Mexico’s suggestion that the dispute

be submitted to the Permanent Court of International Justice (the precursor

to the International Court of Justice) for arbitration. Since the United States

did not accept the jurisdiction of the international tribunal, the Court had no

power to resolve the dispute. See Convention With Mexico for Solution of

the Problem of the Chamizal: Hearings Before the Committee on Foreign

Relations, United States Senate, 88" Cong. 21 (1963) (statement of

Ambassador Thomas C. Mann) [hereinafter “Chamizal Hearings’ }.

'S See Weber, supra, at 42. Mexico suspended payments on the Pious Fund

in 1915. In 1966, it resumed payments, id. at 51, and fully satisfied its

obligations in 1967. /d. at 53.

wrong in rejecting the award. See President’s Message to the

Senate Transmitting the Convention for the Solution of the

Problem of the Chamizal, 88" Cong. 1-3 (1963); Transcript of

the President's News Conference on Foreign and Domestic

Matters, N.Y. TIMES, July 6, 1962, at A8. And notwithstanding

the request of Texas Senator John Tower that the matter be

submitted to the Texas legislature for approval,’® the United

States ratified a new treaty giving effect to the judgment.

Convention for the Solution of the Problem of the Chamizal,

U.S.-Mex., Aug. 29, 1963, 15 U.S.T. 21.

Since then, the United States and Mexico have

submitted numerous economic disputes to international

tribunals for resolution. And in the early 1990s, both nations

signed and ratified the North American Free Trade Agreement,

which provides unprecedented opportunities for arbitration of

disputes between states and private investors. Dec. 17, 1992,

U.S.-Can.-Mex., 32 LL.M. 289-397, 605-779. In Metalclad v.

Mexico, an arbitral tribunal awarded a United States-based

corporation $16.685 million in damages. Metalclad, supra n. 6.

Although Mexico had vigorously contested Metalclad’s claims,

it complied with the judgment. Explaining its decision to pay

Metalclad in accordance with the tribunal's decision, Mexico

reaffirmed its commitment to honor its international

obligations, “even when it does not agree with the findings of

the international tribunal nor with the way the tribunal works.”

Eye on Investors, Mexico Pays U.S. Company, N. Y. TIMES,

Oct. 29, 2001, at A4.

As the examples above make clear, both the United

States and Mexico have long understood that when a dispute is

‘© See Chamizal Hearings at 26 (statement of Senator John G. Tower).

submitted by mutual consent to an international tribunal for

resolution — as under the Optional Protocol to the Vienna

Convention — the resulting judgment is final and binding.

il. The Protection of Nationals Abroad Has Long

Been a Priority of Both Mexico and the United

States.

Ever since Mexico and the United States established

diplomatic relations, the two countries have been actively

involved in the protection of their nationals within the other’s

territory. In 1943, the two countries signed a bilateral consular

convention that codified the customary rights of consular

officers to assist their nationals. Consular Convention Between

the United Mexican States and the United States of America,

Aug. 12, 1942, U.S.-Mex., art. 6, 57 Stat. 800. Among other

things, the bilateral consular convention grants consular officers

the right to visit detained nationals, to assist them “in

proceedings before or relations with authorities of the State,”

and to “address the authorities, National, State, Provincial or

Municipal, for the purpose of protecting the nationals of the

State by which they were appointed in the enjoyment of rights

accruing by treaty or otherwise.” Jd. The bilateral convention

did not contain any provision for arbitration of disputes;

instead, article 6 provides that grievances may be addressed

through diplomatic channels. /d.

The 1963 Vienna Convention on Consular Relations

reaffirmed the rights set forth in the Bilateral Convention and

elaborated on the types of services consular officers could

provide. Vienna Convention, arts. 5, 36. For example, article

5(i) of the Vienna Convention states that “Consular functions

consist in: ... representing or arranging appropriate

representation for nationals of the sending State before the

tribunals and other authorities of the receiving State.” Article

36(1)(c) reinforces this provision, expressly stating that

consular officers may “arrange for [the] legal representation” of

detained nationals. Significantly, the Optional Protocol to the

Vienna Convention gave states parties an additional avenue for

dispute resolution that was unavailable under the bilateral

consular convention. The United States was the leading

proponent of this instrument,'’ which provides:

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 an

application made by any party to the dispute being a

Party to the present Protocol.

Optional Protocol, art. 1.

Within the framework of these two conventions, both

nations have developed comprehensive programs of consular

assistance to their nationals abroad.

A. Mexico Has an Active and Longstanding

Tradition of Providing Extensive Consular

Services to Its Nationals.

Mexican consular officers have provided services to

detained Mexican nationals in the United States for nearly two

'” See Summary Records of Plenary Meetings and of the Meetings of the

First and Second Committees, U.N. Conference on Consular Relations, at

249, U.N. Doc. A/CONF.25/16 (1963).

hundred years. And as the population of Mexican nationals in

the United States has expanded, Mexico’s consular assistance

program has become increasingly sophisticated. With 45

consulates, Mexico now has the most extensive consular

network of any foreign nation in the United States.'*

Mexico’s commitment to the protection of its nationals

stems in part from its conviction, born of experience, that most

Mexican nationals are poorly equipped to navigate the legal

system of a foreign country. See Memorial of Mexico (Mex. v.

U.S.), 2003 LC.J. Pleadings (Avena and Other Mexican

Nationals) A39, App. 7 ( June 20, 2003) (Declaration of

Roberto Rodriguez Hernandez).'? Many Mexican nationals

have little formal education and are desperately impoverished.

2A, para. 6. They have trouble grasping abstract legal concepts,

and often fail to understand their rights — even after their

lawyers have attempted to explain them. See id. at para. 5.

Significant cultural and linguistic barriers impede their ability

to communicate effectively with their attorneys and to

participate fully in their defense. Id.

Mexican consular officers have observed that even

'S Japan has the second largest consular network, with 19 consulates.

Canada has only 15 consulates in the United States. U.S. DEPARTMENT OF

STATE, CONSULAR NOTIFICATION AND ACCESS, FOREIGN EMBASSIES AND

CONSULATES IN THE UNITED STATES (available at

http://www.travel.state.gov/law/consular/consular_745.html) (last visited

Jan. 17, 2005).

'® The declaration of Ambassador Rodriguez Hernandez was provided to the

International Court of Justice in Avena, and is appended to this brief. For

ease of reference, citations will refer to the appropriate paragraph and page

number of the appendix.

nationals who have resided in the United States for many years

retain a strong connection with Mexican culture. Some never

learn to speak English fluently. See id. They face problems

assimilating to a foreign culture in which they are not fully

accepted. As one commentator has observed,”

Mexican immigrants come to the United States

to face grossly incorrect perceptions, negative

Stereotypes, both malignant and _ benign

prejudices, hostility, and antipathy.

J. Palerm, B.R. Vincent, and K. Vincent, Mexican Immigrants

in Courts, in IMMIGRANTS IN COURTS 96 (Joanne Moore, ed.,

1999). Consular assistance can often help overcome these

unique disadvantages.

Cultural misunderstandings and linguistic barriers

pervade many cases involving Mexican nationals, but these

factors take on added significance when the national is facing

capital punishment. Given the gravity of the penalty at stake,

the Government of Mexico has instructed consular officers to

monitor capital cases with particular care. 2A, para. 4.

Consular staff receive specialized training so that they can

evaluate the quality of the legal representation in each case. 6A

at para. 16. The archives of the Foreign Ministry contain files

reflecting the involvement of consular officers in death penalty

cases in the United States dating back to at least 1920.”°

» See also Torres v. State, No. PCD-04-442 (Okla. Crim. App. May 13,

2004), Petition for Writ of Certiorari at 1SSA (Chapel, J., concurring)

(noung that Mexico has had a tradition of active consular assistance in

capital cases since the 1920s); Two Mexicans Die in Electric Chair, N.Y.

TIMES, Jan. 28, 1921, at A3 (discussing unsuccessful battle of Mexican

consular officers to prevent executions in New York); William Aceves, The

Consular officers provide crucial services to Mexican

nationals who are facing the death penalty. In accordance with

their training, their principal concern is to ensure the defendant

receives qualified and effective legal counsel. 4A, para. 10.

Over time, Mexico has concluded that the attorneys assigned to

represent Mexican nationals often lack the experience and the

resources necessary to provide a vigorous defense. In addition,

most of the assigned lawyers do not speak Spanish and rarely

enjoy access to Spanish-speaking investigators and- experts.

Even when the national speaks English fluently, his family

usually does not. Thus, counsel’s inability to speak Spanish

presents a substantial impediment to obtaining mitigating

evidence from relatives. And invariably, birth records and other

critical documents can only be obtained in Mexico.

Consular officers are therefore instructed to support the

defense by providing funds for investigators and experts; acting

as a “cultural bridge” between the defendant and his lawyer;

communicating with the defendant’s family members, friends

and others who may be able to offer assistance or information

vital to the defense; tracking down records and other

Vienna Convention 2n Consular Relations: A Study of Rights, Wrongs and

Remedies, 31 VAND. J. TRANSNAT’L L. 257, 272 n.2 (1998) (citing a 1934

case in which Mexican consular officials sought access to a national held in a

California jail); Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire,

N.Y. TIMES, Oct. 26, 2000, at A20 (describing consular involvement in a

Florida capital prosecution, and noting Mexico's reported involvement in

261 death penalty cases since 1994); Valdez v. State, 46 P.3d 703, 710

(Okla. Crim. App. 2001) (concluding that Mexico would have intervened in

a 1989 capital murder prosecution to assist with a Mexican national’s

defense and to provide resources to ensure that the defendant received a fair

trial and sentencing hearing).

documents; and identifying and transporting family members

and other witnesses to the United States. 4A-5A, paras. 11-13.

If consular officers conclude that the defense attorney is not

able to provide high quality representation, they attempt to

secure more effective legal counsel, a function that is entirely

consistent with the rights of consular officers under article 36(c)

of the Vienna Convention:

Sometimes this is accomplished by providing funds so

that experienced counsel may be retained. On other

occasions, Mexican consular officers assist in locating

experienced defense counsel who are able to represent

nationals on a pro bono basis. Sometimes, consular

officers can persuade judges to remove an unqualified

lawyer and appoint more qualified counsel to replace

him.

6A, para. 15.

Experience has taught the Government of Mexico that

consular intervention is most effective prior to trial. Early

consular intervention often persuades prosecutors to refrain

from seeking the death penalty. 5A at para. 14. Consular

officers commonly search all archives and databases in Mexico

to determine whether a defendant has a criminal record, and

provide documentation of such searches to the prosecution.

Consular officers can also obtain birth, school and medical

records that provide proof of a defendant’s physical or mental

condition. /d. at para. 12. This sort of evidence has influenced

the outcome of dozens of cases. Statistics maintained by the

Mexican Foreign Ministry demonstrate that in at least 59 cases

since September 2000 where consular officers were informed of

the Mexican national’s detention prior to trial, prosecutors

waived the death penalty.

Finally, early intervention enables consular officers to

advise Mexican nationals and their counsel of the importance of

challenging at the trial level violations of the Vienna

Convention. Criminal attorneys in the United States are often

unaware of the obligations imposed by Article 36 As a result,

they often fail to assert Vienna Convention claims or preserve

them for appeal. Consular officers seek to educate defense

attorneys about the significance of the treaty and the vital role

of consular assistance. Through these efforts, they can increase

the likelihood that Mexican nationals will not be prejudiced by

any violation of their Article 36 rights, and that Vienna

Convention claims will not be waived. 4A, para. 10.

In light of the services described above, it is not

surprising that the United States government has acknowledged

that the consular assistance Mexico provides its nationals in

capital cases is “extraordinary.” 1 Counter-Memorial of the

United States of America (Mex. v. U.S.), 2063 LC.J. Pleadings

(Avena and Other Mexican Nationals) 186 (Nov. 3, 2003).

B. The United States Has Been a Forceful

Advocate for the Consular Rights of

American Citizens Detained in Mexico.

United States consular officers have been no less

assiduous in seeking to protect the rights of detained United

States nationals in Mexico. As a close neighbor and treaty

partner of the United States, Mexico fully appreciates that the

United States has long been one of the most vigorous advocates

of strict compliance with the Vienna Convention. As described

above, the United States’ inability to resolve complaints by its

nationals in Mexico was one of the factors that led to war in

1846. Even after Mexico settled the claims of United States

nationals under the Claims Commission of 1868, the United

States continued to advocate at the turn of the century for its

citizens who claimed that they had been subjected to wrongful

detention and denial of due process. See DUNN, supra, at 308-

11, 401.

To resolve these claims, the United States and Mexico

ratified a General Claims Convention in 1923. General Claims

Convention, Sept. 8, 1923, U.S.-Mex., 43 Stat. 1730. Several

of the cases addressed by the Commissioners made reference to

the efforts of United States consular officers to protect the

rights of their detained nationals. See, e.g., Harry Roberts

(United States v. Mexico), Opinions of the Commissioners 100,

101, 104 (1926); B.E. Chattin (United States v. Mexico),

Opinions of the Commissioners 422, 446-47 (1926) (Nielsen,

Commissioner, concurring). Among the claims adjudicated by

the Commission was that of Walter H. Faulkner, who claimed

that Mexican authorities had prevented him from

communicating with the United States consul for a period of

several days. Although the Commission ultimately concluded

that the claimant had failed to prove he was deprived of

consular access, it held that “a foreigner, not familiar with the

laws of the country where he temporarily resides, should be

given this opportunity.” Walter H. Faulkner (United States v.

Mexico), Opinions of the Commissioners 86, 90 (1926).

In 1975, complaints by United States citizens

incarcerated in Mexico led to congressional hearings. At those

hearings, State Department representatives testified at length

regarding the nghts of United States citizens to seek consular

assistance:

All of us regard consular protection as an

inherent right of every citizen. That right is not

affected by evidence or findings of guilt... .

Providing consular protection to American

citizens abroad is a basic historic responsibility

of this Department and its consular officers.

U.S. Citizens Imprisoned in Mexico: Hearings before the

Subcommittee on International, Political and Military Affairs,

Part I, 94" Cong. 16 (1975) (Statement of Leonard F.

Walentynowicz). Mr. Walentynowicz observed that in order to

fully protect the rights of prisoners and prevent abuses,

immediate consular access was critical:

A particular issue of prime importance is that of

denied or delayed consular access. We believe

that immediate consular access is the linchpin

on which hangs in large measure the solution to

many of our problems. With early access to

each prisoner we are convinced we can go a

long way toward guaranteeing the prisoner

against mistreatment and forced statements at

the time of arrest, along with making available

to him information about responsible legal

counsel and judicial procedures.

Id., Part I, at 6. Finally, in keeping with the United States’

long tradition of protecting the rights of its citizens in Mexico,

the State Department emphasized the need to actively intervene

in individual cases to ensure that justice 1s done:

[W]e are persuaded that to make progress in

protecting the rights of U.S. citizens in Mexico,

we must repeatedly present Mexican authorities

with the facts, demonstrate how they constitute

a violation of Mexican and/or international law

and norms, and insist that such violations be

corrected and prevented in the future.

Id. at 63.

Ill. The International Court of Justice Issued a

Binding Judgment that Adjudicated the Rights of

Individual Mexican Nationals.

As the preceding overview makes clear, disputes over

the treatment of Mexican and United States nationals have

permeated bilateral relations for the last two centuries. This is

hardly surprising, in light of this Court’s observation that

[o]ne of the most important and delicate of all

international relationships, recognized immemorially .

as a responsibility of a government, has to do with the

protection of the rights of a country’s own nationals

when those nationals are in another country.

Hines v. Davidowitz, 312 U.S. 52, 64 (1941). In recent years,

Mexico's efforts to protect its nationals have repeatedly been

compromised by non-compliance with Article 36 of the Vienna

Convention on Consular Relations. 17A-18A, paras. 43-45.

Violations of consular rights have been especially troublesome

in Capital cases. As described above, Mexican consular officers

have provided critical resources to aid in the defense of their

nationals facing the death penalty since long before the trial of

Mr. Medellin. Yet because of widespread noncompliance with

Article 36, Mexico has been unable to come to its nationals’ aid

prior to trial, at the time when consular assistance would be

most useful.

Mr. Medellin’s case is illustrative. Mexico learned of

his detention only after the Texas Court of Criminal Appeals

had already denied his direct appeal. Memorial of Mexico,

Annex 7, App. A, para. 235. Texas authorities had made no

attempt to comply with their Article 36 obligations, even

though Mr. Medellin informed them that he was born in Mexico

and had not obtained U.S. citizenship. Joint App. at 15;

Petition for Writ of Certiorari, App. 165A. Had Mexico learned

of Mr. Medellin’s detention in a timely manner, it would have

been able to provide the range of consular services it routinely

makes available to Mexican nationals facing capital charges.

These services would have been of particular use to Mr.

Medellin, given the several and substantial ways in which his

trial attorney’s performance, particularly at the sentencing phase

of his trial, fell below the high standards of representation that

consular officers routinely insist upon. Indeed, trial counsel

was suspended from the practice of law for ethics violations

during the pre-trial proceedings in Mr. Medellin’s case, when

he should have been preparing for trial. Memorial of Mexico,

Annex 7, App. A, para. 232. The core of counsel’s meager,

two-hour penalty phase defense was the testimony of a

psychologist, Dr. Wendell Dickerson, whom counsel had not

asked or enabled to interview Mr. Medellin. S. F. vol. 35 at

294-348. The assigned defense lawyer made no inquiry into

Mr. Medellin’s life history in order to provide a mitigating

explanation for his role in the crime — the most elemental

component of effective capital case advocacy. See Williams v.

Taylor, 529 U.S. 362, 395-97 (2000) (finding counsel

ineffective for failing to investigate defendant’s background);

AMERICAN BAR ASSOCIATION, STANDARDS FOR THE

APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN

DEATH PENALTY CASES, Guideline 10.7 (2003).

At the first possible opportunity, Mexican consular

officers assisted Mr. Medellin’s post-conviction lawyers in

raising the violation of the Vienna Convention in state court.

Even though Mr. Medellin had not been informed of his article

36 rights at the trial level, and had no reason to know that he

should invoke those rights, the state court found that the Vienna

Convention claim was procedurally defaulted. Respondent’s

Proposed Findings of Fact, Conclusions of Law, and Order, No.

675430-A, at 19 (339th Dist. Ct., Tex. Jan. 22, 2001) (Petition

for Writ of Certiorari, App. 34A).

The state court’s treatment of Mr. Medellin’s claim has

been replicated in numerous other cases. See Memorial of

Mexico at 94-95, paras. 227-253. Mexico has repeatedly

sought to obtain redress for these nationals in the United States.

It has filed amicus curiae briefs in state and federal courts, both

at the trial and appellate levels. It has filed suit against local

authorities. United Mexican States v. Woods, 126 F.3d 1220

(9th Cir. 1997). It has obtained an advisory opinion from the

Inter-American Court on Human Rights. OC-16/99, Inter-Am.

Ct. H.R. (Oct. 1, 1999). And it has repeatedly lodged

diplomatic protests with the United States. 12A-15A, paras.

34-39. None of these efforts have succeeded in vindicating the

rights of Mexico or its nationals.

By the end of 2002, Mexico concluded that it had

reached an impasse. At that point, Mexico decided to assert its

rights under the Optional Protocol to seek resolution of the

dispute in the International Court of Justice. On January 9,

2003, Mexico invoked the Optional Protocol and brought suit in

the ICJ on behalf of Mr. Medellin and other Mexican nationals.

See Mexico’s Application Instituting Proceedings (Mex. v.

U.S.), 2003 LC.J. Pleadings (Avena and Other Mexican

Nationals) (Jan. 9, 2003).

In reviewing the claims of Mr. Medellin and the other

Mexican nationals, the International Court of Justice was called

upon to ascertain the underlying facts of each case and to

undertake a legal analysis of the treaty’s provisions. Mexico

accordingly presented the facts surrounding the violation of the

Vienna Convention in each case. Mexico provided, inter alia,

copies of state and federal court decisions, affidavits, and

transcripts relating to violations of Article 36 where available.

See Memorial of Mexico, Annexes 35-65. In the case of Mr.

Medellin, Mexico supplied the International Court of Justice

with the Texas trial court’s findings of fact and conclusions of

law from state post-conviction proceedings,”’ and provided a

separate summary of the Texas court’s reasons for rejecting Mr.

Medellin’s Vienna Convention claim. Memorial of Mexico at

A-103, Annex 7, para. 238. For its part, the United States

presented its own rendition of the facts of each case, made

extensive legal arguments, and submitted over 2,500 pages of

diplomatic correspondence, judicial opinions, law review

articles, affidavits, and transcripts. Regarding Mr. Medellin, the

United States submitted an account of state and federal post-

conviction proceedings, including a description of how each

*! Memorial of Mexico, Annex 55.

court had resolved Mr. Medellin’s Vienna Convention claim.”

Counter-Memorial at A-223, Annex 2, App. 38, para. 7.

The ICJ’s final judgment reflects its careful

consideration of these materials. The Court analyzed the

procedural posture*® and the facts of each case in determining

whether the United States had violated its obligations under

Article 36. In particular, where the facts were contested, the

Court made detailed findings based on the extensive

documentary evidence submitted by the parties. See, e.g.,

Avena Judgment at para. 57 (addressing United States’ claim

that certain Mexican nationals could have dual citizenship); id.

at paras. 66-74 (evaluating United States’ assertions that certain

Mexican nationals had claimed to be U.S. citizens upon arrest);

id. at para. 89 (reviewing facts of one case in response to United

States’ contention that the authorities had complied with their

Article 36 obligations). The Court also distinguished between

those cases in which the United States had violated ail of its

obligations under Article 36 — such as the case of Mr. Medellin

— and those in which the United States violated only some of its

provisions.” This is most apparent in the Court’s discussion of

*° This account included a graphic description of the crime for which Mr.

Medellin had been convicted, facts regarding Mr. Medellin’s schooling in

the United States and prior arrest record, an account of his confession, and

an explanation of how state and federal courts had concluded (in the

alternative) that he had not been harmed by the Vienna Convention violation.

Counter-Memorial at A-222-23.

* See, e.g., Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 LCJ.

128, para. 20 (Mar. 31) [hereinafter “Avena Judgment’) (referring to the

different stages of direct appeal and post-conviction review).

For example, in the case of Ramiro Hernandez Llianas, the Court

concluded that the United States had violated its obligation to inform the

Article 36(1)(c), which provides that consular officers may

“arrange for [the] legal representation” of their nationals.

The Court observed that in 16 cases, Mexican consular

officers had learned of their nationals’ detention before trial,

either through notification by United States authorities or by

other means, with sufficient time to arrange for their legal

representation. Avena Judgment, para. 104. In these cases, the

Court concluded that the United States had not violated Article

36(1)(c). It recognized that even though the United States had

failed to comply with its obligations to notify the 16 nationals

of their consular rights “without delay,” consular officers had

nonetheless been able to provide meaningful assistance to their

nationals prior to trial. In the remaining 34 cases, however,

including the case of Mr. Medellin, the Court found that the

authorities’ noncompliance with Article 36, coupled with

Mexico’s lack of knowledge of the detentions, had effectively

prevented consular officers from arranging for legal

representation or providing other resources to improve the

quality of the defense. /d. at para. 106(4).

° With regard to Mr. Medellin, the International Court of

Justice held that the United States had violated its obligation

under Article 36(1) to inform him of his night to consular

notification and assistance, as well as the rights of Mexico to

communicate with him, render consular assistance, and arrange

for his legal representation. Avena Judgment at para. 153(4)-

(7). To remedy these violations, the ICJ held that the United

defendant, without delay, of his consular nights. Avena Judgment, para. 76.

Nevertheless, the Court held that the United States had advised the consular

post of Mr. Hernandez Llanas’ detention without delay, in accordance with

its obligations under Article 36(1)(b). /d. at para. 97.

States had to provide “review and reconsideration” of Mr.

Medellin’s conviction and sentence by fully assessing the

prejudice caused by the Vienna Convention violations. /d. at

para. 153(9). The ICJ rejected the United States’ argument that

review and reconsideration could be achieved through the

clemency process, holding instead that the review must occur

“within the overall judicial proceedings relating to the

individual defendant concerned.” /d. at 141; see also id. at 140.

The Avena Court set forth specific requirements for

effective review and reconsideration. First, the Avena Court

held that procedural default doctrines may not be invoked

where it was “the failure of the United States itself to inform”

the national of his Article 36 rights that impeded his ability to

raise the violation at trial. /d. at paras. 112-13. This holding

reflects the Court’s recognition that when detained nationals are

unaware of their treaty rights, and consular officers are

effectively precluded from advising them of these nights prior to

trial, the defendants may not be blamed for inadvertently

waiving Vienna Convention claims.

Second, the ICJ emphasized that review and

reconsideration had to be “effective” and “guarantee that the

violation and the possible prejudice caused by that violation . . .

be fully examined and taken into account:””

[In a situation of the violation of rights under Article

36, paragraph 1, of the Vienna Convention, the

defendant raises his claim in this respect not as a case

of “harm to a particular right essential to a fair trial” —

a concept relevant to the enjoyment of due process

* Avena Judgment at para. 138; see also id. at para. 131.

rights under the United States Constitution — but as a

case involving the infringement of his rights under

Article 36, paragraph 1. The rights guaranteed under

the Vienna Convention are treaty rights which the

United States has undertaken to comply with in

relation to the individual concerned, irrespective of the

due process rights under United States constitutional

law. In this regatd, the Court would point out that

what is crucial in the review and reconsideration

process is the existence of a procedure which

guarantees that full weight is given to the violation of

the rights set forth in the Vienna Convention,

whatever may be the actual outcome of such review

and reconsideration.

Avena Judgment, para. 139 (emphasis added).

Third, the Avena Court explained that review and

reconsideration must be conducted by a court that is empowered

“to examine the facts, and in particular the prejudice and its

causes, taking account of the violation of the rights set forth in

the Convention.” Jd. at para. 122. The ICJ clearly

contemplated that the United States courts would scrutinize the

nature of Mexico’s consular assistance and the difference that

such assistance could have made in the context of each

individual case. See id. at para. 104. Although it would be

appropriate for the lower courts to consider the issue of

prejudice in Mr. Medellin’s case in the first instance, Mexico

believes that there will not be far to look before prejudice is

found.

In short, the Court’s final judgment was both cautious

and balanced. Although the Court vindicated Mexico’s claims

that the United States had violated its international legal

obligations in the case of Mr. Medellin and 50 other Mexican

nationals, the Court rejected several arguments advanced by

Mexico. In doing so, it took pains te respect ongoing capital

proceedings in the United States. The Court rejected Mexico’s

request for a remedy that would have obligated the United

States to vacate each national’s conviction and sentence without

inquiring whether the Article 36 violation affected the fairness

of the underlying proceedings. Instead, the Court called upon

the United States judiciary to provide a fair process by which

the Vienna Convention violations could be fully considered and

remedied, on a case-by-case basis.

IV. The United States Is Obligated to Fully Implement

the Avena Judgment.

When the United States and Mexico ratified the Vienna

Convention on Consular Relations and its Optional Protocol,

they exchanged solemn promises to abide by the terms of those

instruments. The binding character of the commitment the

United States made in the Optional Protocol is reinforced by the

United Nations Charter, also ratified by both the United States

and Mexico. U.N. Charter, opened for signature Jun. 26, 1945,

59 Stat. 1031, T.S. No. 993. By ratifying Article 94(1) of the

Charter, the United States expressly agreed to “comply with the

decision of the International Court of Justice in any case to

which it is a party.” U.N. Charter, art. 94, para. 1. And by

ratifying Article 59 of the Statute of the International Court of

Justice, which forms part of the Charter, the United States

expressly agreed that judgments of the Court have “binding

force” upon it in cases to which it is a party. Statute of the

International Court of Justice, art. 59, 59 Stat. 1055, T.S. 993.

In keeping with those promises, the United States must

now fulfill its obligations to Mr. Medellin, the Government of

Mexico, and the International Court of Justice. Without the

United States’ express consent, the International Court of

Justice could not have heard the Avena case or rendered its

judgment. Having given its consent, and having fully

participated in the proceedings, the United States must now

abide by the result.

The modest scope of the judgment reflects the Court’s

respect for the United States judicial system. The ICJ did not

mandate the reversal of convictions and death sentences.”°

Indeed, it did not order substantive remedies in any of the 51

cases. Rather, the International Court of Justice called upon the

United States to implement the judgment within its existing

judicial framework. To satisfy the United States’ obligations to

comply with the judgment, the courts need only provide full and

fair review of the violations in each national’s case, in

accordance with the criteria set forth by the ICJ.

With respect to the ICJ’s judgment regarding the

operation of procedural default rules, Mexico fully appreciates

this Court’s need to consider its earlier decision in Breard v.

Greene, 523 U.S. 371 (1998). But the petitioner in Breard,

unlike Mr. Medellin, did not have the benefit of a binding

adjudication of his rights by the International] Court of Justice at

the time he sought review of his Vienna Convention claim.

open the possibility that United States courts covld order new trials or

sentencing hearings after reviewing the violations.

Mexico tnitiated proceedings before the ICJ at a time when no

Mexican national was facing imminent execution to avoid the

situation created by Paraguay’s tardy filing before that Court.

See Breard, 523 U.S. at 378. The binding nature of the Avena

Judgment is undisputed, unlike the provisional measures order

whose legal status was uncertain at the time this Court decided

Breard. See Brief of International Law Experts and Former

Diplomats in Support of Petitioner at 6. This difference is

crucial, and compels reconsideration of the Breard dictum

regarding procedural default.

The United States leads by example. Just as it has

invoked the rule of law to protect its own nationals abroad, it

should abide by the rule of law when the interests of foreign

nationals in the United States are at stake. Mexico respectfully

requests that this Court uphold the promises the United States

made to Mexico and the world community by ordering the

review and reconsideration mandated by the International Court

of Justice in Avena.

CONCLUSION

Amicus curiae the Government of Mexico respectfully

urges this Court to reverse the decision of the Court of Appeals.

Respectfully submitted,

Sandra L. Babcock

Counsel of Record

2520 Park Avenue South

Minneapolis, Minnesota 55404

(612) 871-5080

International Court of Justice

Avena and Other Mexican Nationals (Mexico v. United

States of America)

DECLARATION OF RO D

HERNANDEZ

I, Roberto Rodriguez Hernandez, solemnly declare upon my

honour and conscience that the following declaration is the

truth, and that this declaration is in accordance with my sincere

belief:

I am the Director General for Protection and Consular

Affairs in the Mexican Ministry of Foreign Relations, a

position I have heid since 2001 under the administration of

President Vicente Fox. I currently hold the rank of

Ambassador of Mexico.

I was educated as a lawyer at Morelos State University in

Morelos, Mexico. I am a career foreign service officer,

having been in the service since 1977, and have held several

positions as Consul of Mexico within the United States,

specifically in Arizona, Puerto Rico, California and Texas.

In my current post, I am responsible for the oversight of

Mexico’s far-reaching consular protection program. Over

the course of my career, I have, of necessity, become

knowledgeable about Mexico’s practice of providing

extensive consular assistance in capital cases.

The Nature of Mexico’s Consular Assistance

4. The Government of Mexico is committed to providing its

citizens incarcerated in the United States with the highest

level of consular assistance, particularly when they are

facing capital charges. In Mexico's experience, early

intervention by consular officers can often prevent the

imposition of a death sentence.

. To that end, Mexican consular officers have spent

considerable time, energy, and resources on capital cases.

In these cases, their overriding concern is to ensure that

each national understands the nature of the United States’

criminal justice system and otherwise makes informed

choices with regard to his rights. Mexican nationals often

misapprehend their legal rights, even after living in the

United States for years. Most nationals speak Spanish as a

first language, and they communicate most effectively with

someone who understands Mexican idiomatic expressions

and even Mexican slang. There are. several Mexican

nationals on death row who have lived in the United States

for years, yet still do not speak English well enough to

converse in that language.

. Most Mexican nationals facing the death penalty come from

extremely poor families, and have limited education. The

average educational level of the Mexican nationals listed in

Mexico’s Application is less than seven years — roughly the

equivalent of a primary school education. At least seven of

the Mexican nationals on death row have gone to school for

less than three years. Many suffer from brain damage and

other cognitive impairments stemming from exposure to

pesticides, substance abuse, and traumatic head injuries.

Others are mentally retarded or mentally ill.

. Mexican consular officers are specifically trained to

recognize mental impairments, and take special care in

those cases to explain the national’s legal rights so that he

does not make poor decisions. In several cases, consular

officers have detected signs of mental illnesses or other

impairments when the national’s attorney had failed to

recognize them. At least five Mexican nationals facing the

death penalty have been found to be mentally retarded in the

last three years alone, after Mexico alerted defense counsel

to the need for psychological testing and/or referred defense

counsel to competent, bilingual experts: Virgilio

Maldonado, Ramiro Ibarra Rubi, José Calderon Palomino,

Francisco Gonzalez Reyes, and Daniel Angel Plata. In

three of those cases, Mexico provided the necessary funds

for testing and/or investigation, since defense counsel had

no resources to retain a mental health expert.

. In my experience, Mexican nationals often trust consular

officers more than their own lawyers, due to their shared

culture and language, and due to the time consular officers

spend with detainees who are facing the death penalty.

Frequently, consular officers spend more time with

detainees than their lawyers, many of whom do not speak

Spanish. For example, in the cases of Ramiro Ibarra Rubi

and Daniel Angel Plata, both of whom are on death row in

Texas, the lawyers who represented them in state post-

conviction proceedings never even met them.

. Mexican consular officers also ensure that Mexican

nationals are generally treated fairly and in a non-

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discriminatory manner in the proceedings. Whenever

consular officers detect an atmosphere of bias against a

Mexican defendant because of his nationality, they are

instructed to raise their concerns with the appropriate

authorities.

In addition, Mexican consular officers make certain that the

national receives an adequate legal defense from competent

and vigorous defense counsel. Mexico has found that the

quality of attorneys representing indigent defendants in the

United States is uneven, at best. For this reason, consular

officers are instructed to monitor and support defense

counsel’s efforts, confer regularly with the defendant

national and his family, and attend court proceedings. In

many cases, Mexican consular officers assist in gathering

evidence in preparation for the guilt and penalty phases of

capital trials. Also in many of the cases, Mexican consular

officers educate defense counsel about the requirements of

article 36 of the Vienna Convention and assist counsel in

raising violations of article 36 at the appropriate time in the

criminal proceedings.

. Mexico also provides funds for expert and investigative

assistance. For instance, Mexican consular officers are

often instrumental in locating and funding experts relating

to the presentation of “mitigation evidence” on behalf of the

national during the penalty phase. Such evidence is

invariably crucial in assisting the national to avoid the death

penalty. Mexico regularly obtains documents from schools,

hospitals, and other institutions in Mexico, conducts

searches for criminal records (and provides proof of the

defendant’s lack of criminal record, where appropriate),

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provides logistical support to attorneys traveling in Mexico,

and supports their efforts to identify and interview

witnesses in our country.

. In Mexico’s experience, it is essential that consular officials

begin the process of gathering documents and locating

witnesses as quickly as possible, because it may influence

plea negotiations and affect trial counsel’s decisions to

retain mental health experts. Locating witnesses and

records in Mexico is often very time-consuming, given the

necessity of locating witnesses in remote areas without

telephone service, and the diificulty in obtaining visas and

providing transportation to indigent witnesses with no

independent means of transportation.

When given adequate notice, Mexican consular officers

routinely obtain visas for defense witnesses living in

Mexico, so that they may enter the United States. The

consulate often provides funding for the transportation of

these witnesses. In some cases, witnesses live in rural areas

of Mexico, and have never traveled outside of their own

communities. In those cases, employees of the Foreign

Ministry have personally escorted the witnesses from their

homes to the courthouse in the United States where they

will testify.

Mexican consular officers closely monitor the cases of

Mexican nationals facing the death penalty, and often

appear before judges and prosecutors to advocate for the

imposition of a lesser punishment. They have played an

active role in plea negotiations in several cases, with very

positive results. They have, on many occasions, provided

interpretation services for defendants and have monitored

the performance of official court interpreters.

15. Finally, consular officers support defendants’ attempts to

obtain more qualified counsel. Sometimes this is

accomplished by providing funds so that experienced

counsel may be retained. On other occasions, Mexican

consular officers assist in locating experienced defense

counsel who are able to represent national defendants on a

pro bono basis. Sometimes, consular officers can persuade

judges to remove an unqualified lawyer and appoint more

qualified counsel to replace him.

16. The Mexican Foreign Ministry provides training to all

consular officers, on a regular basis, so that they are

prepared to provide all of the services outlined above.

17. Mexico's goal is not to interfere with the judicial process in

the United States, but rather to ensure its nationals receive

the protection to which they are entitled under domestic and

international law. Pursuant to this mandate, Mexican

consular officers have assisted attorneys in innumerable

capital cases. The modes of assistance described above

represent Mexico's consistent consular practice in capital

cases and that practice has not changed during the period of

my service.

Mexico’s Historical Consular Assistance

18. My government's involvement in these cases stems from its

long-term commitment to the protection of Mexican

migrants to the United States. The nearly two century-long

history of Mexico's consular presence in the United States

attests to that commitment.

19. The very first reference to the duty of the Mexican consuls

to provide protection to Mexican nationals abroad is found

in the 1829 governing law of the Mexican foreign service.

Subsequently, several laws and regulations governing the

Mexican Foreign Service during the nineteenth century

included the obligation for Mexican consular agents to

provide protection and assistance to fellow nationals

abroad. '

20. In the first decades of the twentieth century, legislation

regulating the Mexican Foreign Service enacted in 1910,

1923 and 1934 expressly established the obligation to

protect the rights and interests of Mexican nationals, as one

of the main responsibilities of Mexican consular officers.”

' Relevant legislation included the 1831 Law on the Establishment of

Legations in Europe and America (Ley sobre el Establecimiento de

Legaciones de Europa y America), 1834 Law on the Establishment of

Consulates (Ley sobre el Establecimiento de Consulados), 1853 Decree

Governing Law of the Mexican Diplomatic Service (Decreto Ley Organica

de! Cuerpo Diplomatico Mexicano), 1865 Governing Law of the Diplomatic

Service and Governing Law of the Consular Service (Ley Organica del

Cuerpo Diplomatico y Ley Organica del Cuerpo Consular), 1871

Regulations to the 1834 Law (Reglamento a la Ley de 1834), 1888

Regulating Law of the Diplomatic Service (Ley Reglamentaria del Cuerpo

Diplomatico) and 1896 Governing Law of the Mexican Consular Service

and its Regulations (Ley Organica del Cuerpo Consular Mexicano y su

Reglamentio).

> 1910 Governing Law of the Mexican Consular Service (Ley Organica del

Cuerpo Consular Mexicano), and its regulations, 1923 Governing Law of

the Mexican Consular Service and its Regulations (Ley Organica del Cuerpo

os,

_——-.

. During this period, the consular policy of Mexico was

characterized by the promotion of bilateral commerce and

the establishment of Mexican consulates, especially in

border cities. In addition, during this time, consular

protection activities were carried out by consuls in response

to the increased migration of Mexican nationals to the

United States.

Over these three decades, Mexico established the

foundation for an extensive and sophisticated program of

consular assistance to Mexican nationals residing in the

United States. At that time, no treaty existed between the

two countnes that formalized consular relations.

Nevertheless, consular access to nationals in foreign prisons

had long been accepted as a rule of customary international

law.

23. In 1942, Mexico and the United States signed a Consular

Convention memorializing the right of each country’s

consular officers to “address the authorities, National, State,

Provincial, or Municipal, for the purpose of protecting the

nationals of the State by which they were appointed in the

enjoyment of mghts accruing by treaty or otherwise.”

Consular Convention Between the United Mexican States

and The United States of America (1942). This

Convention, signed twenty-one years before the Vienna

Consular Mexicano y su Reglamento) and 1934 Law of the Foreign Service

Governing the Diplomatic and Consular Services and its Regulations (Ley

del Servicio Exterior Organica de los Cuerpos Diplomatico y Consular

Mexicanos y su Reglamento).

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25.

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Convention on Consular Relations, codified existing

customary law and formalized consular relations between

Mexico and the United States.

In 1963, Mexico and the United States both attended the

Conference on Consular Relations convened by the United

Nations General Assembly. The conference culminated

with Mexico’s signing and ratification of the Vienna

Convention on Consular Relations, the most important

instrument governing consular relations around the world.

Three years later, in 1966, Mexico’s Congress approved a

new Governing Law of the Mexican Foreign Service (Ley

Organica del Servicio Exterior Mexicano), which made

reference to consular protection activities. The law was

expanded and updated in 1982, and again in 1994, 1999,

and 2002. Currently, under Article 2(II) of the Law of the

Mexican Foreign Service, diplomatic and consular officers

are obligated to protect the dignity and fundamental rights

of all Mexicans abroad, in accordance with principles of

international law. Article 44(I) requires heads of consular

missions to protect the interests of Mexico and the rights of

Mexican nationals, and imposes a duty to notify the

Mexican Foreign Ministry of the condition of Mexican

nationals. All of these principles have been part of the law

governing the foreign service since 1982.

The obligations of Mexican consular officers to protect the

rights of nationals are reiterated in the regulations

corresponding to the Law of the Mexican Foreign Service

(Reglamento de la Ley del Servicio Exterior Mexicano).

Article 53 of the Reglamento establishes the “primary

obligation” of protecting the rights of Mexicans abroad, and

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requires Mexican consular officers to assist Mexican

nationals in their relations with local authorities, advise

nationals of their rights and obligations im the foreign state,

visit Mexicans who are detained in prisons, and represent

those Mexicans who cannot personally defend their

interests.

. By 1981, there were 40 Mexican consulates located in

major metropolitan areas throughout the United States.

That year, the Mexican Foreign Ministry created a special

category of consular officers, whose sole purpose was to

protect the rights of Mexican nationals abroad. At the same

time, Mexican consulates were given increased budgets for

consular assistance. By 1983, every consulate in the United

States had at least one consular protection officer.

.In 1986, the Mexican Foreign Ministry established a

Program of Legal Consultation and Defense for Mexicans

abroad. The Program sent selected career foreign service

officials to American law schools to study the American

judicial system. In this way, Mexico began to establish a

cadre of consular officers specializing in American law, for

the express purpose of assisting American attorneys

representing Mexican nationals in complicated legal

proceedings. During this time, consular officers also

provided assistance to the small but growing number of

Mexican nationals facing capital charges.

Mexico has continued to make enforcement of the Vienna

Convention a priority in its relations with the United States.

Indeed, on 7 May 1996, Mexico and the United States

signed a Memorandum of Understanding on Consular

Protection of Mexican and United States Nationals. In this

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document, both nations promised to comply with article

36(1) of the Vienna Convention.

In September 2000, Mexico established the Mexican

Capital Legal Assistance Program in order to enhance the

quality of legal representation provided to Mexican

nationals in capital cases, train Mexican consular officers to

more effectively assist defense counsel, and to increase

compliance with international law. To date, the Program

constitutes the sole capital legal assistance program

established by a foreign government in the United States.

The Program is staffed by ten experienced capital defense

lawyers and a paralegal.

Since September 2000, Mexican consular officers and

Program attorneys together have played a decisive role in

preventing the imposition of the death penalty in forty-five

cases. In thirty-eight of those cases, prosecutors have

agreed to waive the death penalty prior to trial. In four

cases, defendants were sentenced to life imprisonment after

jury trials. And in three cases, the defendants’ sentences

were commuted to life in prison.

Program attorneys have filed, in the name of Mexico,

sixteen amicus curiae briefs, and have offered important

legal assistance to defense counsel in sixty-seven other

cases. Through the Program, Mexico has provided funds

for experts, mitigation specialists, or investigators in

twenty-two cases.

I am familiar with Mexico’s efforts in the cases of Felipe

Petrona Cabafias, Carlos Jahuey Carillo, Francisco

Gonzalez Reyes, Ernesto Baylon Mendoza, Liliana Pifia,

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Nicolas Solorio Vasquez, and Ernesto Esteban Rarnirez

Anguiano, and can attest that the description of those cases

in Mexico’s Memorial is accurate.

Mexico’s Diplomatic Demarches In Recent Capital Cases

34. Over the past six years, Mexico has filed diplomatic notes

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in at least twenty capital cases on behalf of Mexican

nationals facing execution in the United States. In my

various Capacities as Consul of Mexico in Arizona, Deputy

Director General of Consular Affairs, and my current

position as Director General, I have become familiar with

the diplomatic efforts made by the Mexican government on

behalf of Irineo Tristan Montoya, Mario Benjamin Murphy,

Miguel Angel Flores, Gerardo Valdez and Javier Suarez

Medina, as well as the responses of the United States to

Mexico's overtures in these cases. The following

information augments the facts established by the numerous

diplomatic notes filed in these cases by Mexico, as cited in

the Memorial.

.In the case of Mr. Montoya, the United States failed to

respond to any of the notes filed by Mexico, even refusing

to allow a temporary stay of the execution to consider the

acknowledged Vienna Convention violation. Instead, Mr.

Montoya was executed by the state of Texas on 18 June

1997 and the United States apologized for the execution on

9 July 1997.

In the case of Mr. Murphy, the United States Assistant

Secretary for Inter-American Affairs, Jeffrey Davidow, told

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the Mexican Ambassador to the United States at the time,

Mr. Jesus Silva-Herzog, that the United States was of the

opinion that the Vienna Convention violation had not

affected the outcome of Mr. Murphy's case. In response to

this statement, Ambassador Silva-Herzog sent a letter dated

10 September 1997 to the United States, urging the United

States to join Mexico in requesting a commutation based on

the violation. There was no response by the United States,

and Mr. Murphy was executed on 18 September 1997 by

the State of Virginia. After Mr. Murphy's execution, the

United States apologized to Mexico.

.In the case of Mr. Flores, Mexico sent diplomatic

representatives to meet with the Chairman of the Texas

Board of Pardons and Paroles to advocate on behalf of Mr.

Flores and press for the review of the acknowledged

violation of the Vienna Convention. The governments of

Argentina, Chile, Honduras, Panama, Poland, Spain,

Switzerland and Uruguay, as well as the European Union,

joined Mexico to intervene diplomatically on Mr. Flores’

behalf. As before, however, there was no response by the

United States. Mr. Flores was executed on 9 November

2000 by the State of Texas, after which the United States

issued a formal apology.

In the case of Mr. Valdez, Mexico first learned of Mr.

Valdez’s arrest when one of his relatives contacted the

consulate in April 2001, only two months before his

scheduled execution date. Upon learning of his impending

execution, Mexico retained experienced counsel, an

investigator and a bilingual neuropsychologist. Mexico's

investigative efforts uncovered new evidence that was

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subsequently presented to the Oklahoma Board of Pardons

and Paroles. Mexican consular representatives attended the

Board's public hearing, at which the Board recommended

that Mr. Valdez’s death sentence be commuted to life

imprisonment. Oklahoma's Governor Frank Keating

granted a 30-day reprieve to consider the Board's

recommendation at the request of President Vincente Fox.

Mexico sent a diplomatic envoy to meet with Governor

Keating to discuss the Vienna Convention violation and

other aspects of the case. Despite Mexico's efforts and the

issuance of the LaGrand ruling during the 30-day reprieve,

Governor Keating rejected the Board's recommendation

and demied clemency. Ultimately, an Oklahoma court

vacated Mr. Valdez’s death sentence based upon a finding

that Mr. Valdez’s trial counsel provided deficient legal

representation.

39. Finally, in the case of Mr. Suarez Medina, Mexico again

sent a diplomatic delegation to communicate its concerns to

the Texas Board of Pardons and Paroles as well as the

Texas Secretary of State. Again, President Fox

communicated directly with the Texas Governor to request

areprieve. The attention received by Mr. Suarez Medina’s

case was international in scope. In addition to the petition

filed in the Inter-American Commission on Human Rights.

which issued precautionary measures, diplomatic efforts

were made on behalf of Mr. Suarez Medina by Argentina,

Brazil, Chile, Columbia, Costa Rica, Ecuador, E] Salvador,

Guatemala, Honduras, Panama, Paraguay, Poland, Slovenia,

Spain, Switzerland, Uruguay, Venezuela, the Holy See, and

the European Union. Despite all of these efforts, Mr.

Suarez Medina was executed on 14 August 2002 by the

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State of Texas. In protest, President Fox cancelled his

official visit to Texas. The United States has not yet issued

a formal! apology in Mr. Suarez Medina’s case.

Cases Of Mexican Nationals Currently Facing Death

Sentences in the United States

40. In my capacity as Director General for Protection and

Consular Affairs in the Mexican Ministry of Foreign

Relations, I have supervised a review of consular files, court

documents, and other records pertaining to each national on

death row whose Article 36 rights were violated. Attached

to this affidavit as Exhibit A are summaries of the relevant

facts revealed in the investigation of each of the 54 capital

murder cases named in Mexico’s Memorial, including the

additiona! case of Enrique Zambrano Garibi, who has only

recently come to my attention as a Mexican national tried,

convicted, and sentenced to death in proceedings that did

not comport with the Vienna Convention. These summaries

are based largely upon Mexico's internal files and selected

court documents.

Consulate Survey

41. The Mexican Foreign Ministry is in constant contact with

its forty-five consular offices located in the United States

regarding the protection of Mexican nationals detained in

U.S. jails and prisons.

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42. As part of its ongoing efforts to ascertain whether U.S.

authorities are complying with Article 36, Mexico has

requested information from each of its consulates located in

the United States to evaluate the authorities’ recent practice

on consular notification and access. In response, each of

the forty-five consulates’ provided a qualitative assessment

of the authorities’ level of compliance with Article 36 in

their respective jurisdictions. In addition, the consulates

provided concrete examples of Mexican nationals arrested

after 27 June 2001,’ and charged with serious crimes,” who

wets not apprised of their rights under Article 36. The

consulates’ reports were based upon numerous sources,

including arrest reports and other case documentation,

interviews with defense attorneys, interviews with the

* The consulates participating in the survey were: Consulmex Houston*,

Consulmex Indianapolis, Consulmex Eaglepass, Consulmex Orlando*,

Consulmex Nueva York*, Consulmex Kansas, Consulmex Seattle,

Consulmex Douglas, Consulmex Omaha*, Consulmex Lazedo, Consulmex

San Antonio*, Consulmex Raleigh*, Consulmex Las Vegas*, Consulmex

Yuma, Consulmex Sacramento*, Consulmex Oxnard*, Consulmex Auanta’*,

Consulmex Calexico, Consulmex San Franciso*, Consulmex Del Rio,

Consulmex Detroit*, Consulmex Los Angeles*, Consulmex Dallas*

Consulmex San Bernardino, Consulmex Fresno*, Consulmex Albuquerque’,

Consulmex Presidio*, Consulmex San Diego*, Consulmex Chicago’,

Consulmex Philadelphia*, Consulmex Dallas*, Consulmex Denver,

Consulmex Austin*, Consulmex E] Paso*, Consulmex Portland*, arid [ }.

CHECK THIS.

* This was the date of the Court's decision in LaGrand.

* Serious crime cases were defined as violent felonies in which the national

faced either a significant term of imprisonment such as life in prison or the

death penalty. The vast majority of the cases involve a charge of first-degree

murder.

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nationals themselves, and interviews with local, state,

and/or federal authorities operating in the consulates’

respective jurisdictions.

Together, the consulates identified no fewer than 102 cases

of Mexican nationals arrested on serious criminal charges

after 27 June 2001, all of which involved violations of the

Vienna Convention. In 89 of the cases, nationals have been

charged with homicides. In thirty-six of these cases,

Mexican nationals could potentially be sentenced to death.

The remaining cases involve charges such as attempted

murder, assault, and kidnapping. In each of these cases,

there is no record of any notification to the national or the

consulate. Instead, the relevant consulates became aware of

the cases either through media reports, contact by the

detained national’s family or friends, and/or by taking the

initiative to review weekly arrest lists supplied by law

enforcement authorities in order guess at Mexican

nationality. Each case is detailed in Exhibit B.

. The cases cited in Exhibit B by no means represent the

entire universe of cases in which the authorities have

violated Article 36; indeed, Mexico has purposely excluded

cases of documented violations unless they arose in a case

involving the most serious crimes, where, if convicted, the

national would face a lengthy term of incarceration or the -

penalty of death.

As a general matter, the consulates concluded that

compliance with article 36 of the Vienna Convention by the

competent authorities of the United States is haphazard, at

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best. On the whole, eleven consulates” report that article 36

compliance is practically nonexistent, twenty-five

consulates report mixed compliance, while only eight

consulates® report that consular notification by competent

authorities is routine.” A summary detailing the

information gathered, categorized by state and consulate, is

appended as Exhibit B.

The survey also shows that compliance by the relevant

authorities depends upon specific factors, including (1)

whether local, state, or federal authorities are involved, and

(2) the severity of the charge against the detained national.

For instance, in the majority of consular districts, federal

authorities — particularly immigration authorities — have a

better record of notification than their local or state

counterparts. This is true even though federal authorities

are involved in far fewer serious criminal prosecutions

involving Mexican nationals, which arise primarily in local

and state jurisdictions. Examples abound of this trend. As

detailed in Exhibit B, the Presidio and Detroit consulates

* These consulates are located in Los Angeles, San Jose, Presidio, Las

Vegas, Oxnard, Omaha, Detroit, Chicago, Raleigh, Orlando, and Fresno.

” The consulates are located in San Bernardino, Santa Ana, Austin, Houston,

San Antonio, McAllen, Brownsville, Miami, Portland, Philadelphia, Boston,

E] Paso, Del Rio, Sacramento, San Francisco, San Diego, Calexico,

Albuquerque, New York, Phoenix, Atlanta, Dallas, Kansas, Washington

D.C., and Salt Lake City.

* These consulates are located in Yuma, Tucson, Nogales, Albuquerque,

Seattle, Eagle Pass, Laredo, and Douglas.

* One consulate, in Indianapolis, opened in November 2002, and could

not provide sufficient data regarding compliance.

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indicate that only federal immigration authorities appear to

be complying with Article 36. The Las Vegas consulate

reports that only the United States Department of Homeland

Security and one of the local juvenile detention centers

appear to be complying with their obligations.

Further, the survey showed that compliance with Article 36

is better in cases involving minor criminal charges.

Consulates in Los Angeles, San Antonio, and Sacramento

all report that competent authorities are far more likely to

provide notification in cases involving miner charges, such

as Driving While Intoxicated, than in cases involving

serious crimes such as murder.

FURTHER AFFIANT SAYETH NOT.

13/06/2003 —S/_

Date Roberto Rodriguez Hernandez

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.