University of Minnesota Human Rights Library

1. By submission of December 9, 1997, the United Mexican States (hereinafter “Mexico” or “the requesting State”) sought an advisory opinion of the Inter-American Court of Human Rights (hereinafter “the Inter-American Court,” “the Court,” or “the Tribunal”) on “several treaties concerning the protection of human rights in the American States” (hereinafter “the request”). According to the requesting State, the application concerned the issue of minimum judicial guarantees and the requirement of the due process when a court sentences to death foreign nationals whom the host State has not informed of their right to communicate with and seek assistance from the consular authorities of the State of which they are nationals.

2. Mexico added that the request, made pursuant to Article 64(1) of the American Convention on Human Rights (hereinafter “the American Convention” or “Pact of San José), came about as a result of the bilateral representations that the Government of Mexico had made on behalf of some of its nationals, whom the host State had allegedly not informed of their right to communicate with Mexican consular authorities and who had been sentenced to death in ten states in the United States.

3. The requesting State asserted that the considerations giving rise to the request were the following: the sending State and the host State were both parties to the Vienna Convention on Consular Relations; both were members of the Organization of American States (hereinafter “the OAS”) and had signed the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”); and although the host State had not ratified the American Convention, it had ratified the International Covenant on Civil and Political Rights of the United Nations (hereinafter “the UN”).

4. Given these considerations, Mexico requested the Court’s opinion as to the following points:

1. Under Article 64(1) of the American Convention, should Article 36 of the Vienna Convention [on Consular Relations] be interpreted as containing provisions concerning the protection of human rights in the American States?

2. From the point of view of international law, is the enforceability of individual rights conferred on foreigners by the above-mentioned Article 36 on behalf of the interested parties in regard to the host State subject to the protests of the State of which they are nationals?

3. Mindful of the object and purpose of Article 36(1)(b) of the Vienna Convention, should the expression “without delay” contained in that provision be interpreted as requiring the authorities of the host State to inform any foreigner detained for crimes punishable by the death penalty of the rights conferred on him by Article 36(1)(b), at the time of the arrest, and in any case before the accused makes any statement or confession to the police or judicial authorities?

4. From the point of view of international law and with regard to aliens, what should be the juridical consequences of the imposition and application of the death penalty in the light of failure to give the notification referred to in Article 36(1)(b) of the Vienna Convention?

5. In connection with Article 64(1) of the American Convention, are Articles 2, 6, 14 and 50 of the Covenant to be interpreted as containing provisions concerning the protection of human rights in the American States?

6. In connection with Article 14 of the Covenant, should it be applied and interpreted in the light of the expression “all possible safeguards to ensure a fair trial” contained in paragraph 5 of the United Nations Safeguards guaranteeing protection of the rights of those facing the death penalty, and that concerning foreign defendants or persons convicted of crimes subject to capital punishment that expression includes immediate notification of the detainee or defendant, on the part of the host State, of rights conferred on him by Article 36(1)(b) of the Vienna Convention?

7. As regards aliens accused of or charged with crimes subject to the death penalty, is the host State's failure to notify the person involved as required by Article 36(1)(b) of the Vienna Convention in keeping with their rights to “adequate time and facilities for the preparation of his defense”, pursuant to Article 14(3)(b) of the Covenant?

8. As regards aliens accused of or charged with crimes subject to the death penalty, should the term “minimum guarantees” contained in Article 14(3) of the Covenant, and the term “at least equal” contained in paragraph 5 of the corresponding United Nations Safeguards be interpreted as exempting the host State from immediate compliance with the provisions of Article 36(1)(b) of the Vienna Convention on behalf of the detained person or defendant?

9. With regard to American countries constituted as federal States which are Parties to the Covenant on Civil and Political Rights, and within the framework of Articles 2, 6, 14 and 50 of the Covenant, are those States obliged to ensure the timely notification referred to in Article 36(1)(b) to every individual of foreign nationality who is arrested, detained or indicted in its territory for crimes subject to the death penalty; and to adopt provisions in keeping with their domestic law to give effect in such cases to the timely notification referred to in this article in all its component parts, if this was not guaranteed by legislative or other provisions, in order to give full effect to the corresponding rights and guarantees enshrined in the Covenant?

10. In connection with the Covenant and with regard to persons of foreign nationality, what should be the juridical consequences of the imposition and application of the death penalty in the light of failure to give the notification referred to in Article 36(1)(b) of the Vienna Convention?

11. With regard to the arrest and detention of aliens for crimes punishable by death and in the framework of Article 3(1) [1] of the Charter and Article II of the Declaration, is failure to notify the detainee or defendant immediately of the rights conferred on him in Article 36(1)(b) of the Vienna Convention compatible with the Charter of Human Rights, which contains the term without distinction of nationality, and with the right to equality before the law without distinction as to any factor, as enshrined in the Declaration?

12. With regard to aliens in the framework of Article 3(1) [2] of the OAS Charter and Articles I, II and XXVI of the Declaration, what should be the juridical consequences of the imposition and execution of the death penalty when there has been a failure to make the notification referred to in Article 36(1)(b) of the Vienna Convention?

5. For purposes of the present Advisory Opinion, the following expressions will have the meaning hereunder assigned to them:

a) “the right to information on

consular assistance” or “right to information”

The right of a national of the sending State who is arrested or committed to prison or to custody pending trial or is detained in any other manner, to be informed “without delay” that he has the following rights:

i) the right to have the consular post informed, and

ii) the right to have any communication addressed to the consular post forwarded without delay.

(Article 36(1)(b) of the Vienna Convention on Consular Relations)

b) “the right to consular notification” or

“right of notification”

The right of the national of the sending State to request that the competent authorities of the host State notify the consular post of the sending State, without delay, of his arrest, imprisonment, custody or detention.

c) “right of consular assistance” or “right

of assistance”

The right of the consular authorities of the sending State to provide assistance to their nationals (articles 5 and 36(1)(c) of the Vienna Convention on Consular Relations)

d) “right of consular communication” or

“right of communication” [3]

The right of the consular authorities and nationals of the sending State to communicate with each other (articles 5, 36(1)(a) and 36(1)(c) of the Vienna Convention on Consular Relations)

e) “sending State”

The State of which the person who is arrested or committed to prison or to custody pending trial or detained in any other manner is a national (Article 36(1)(b) of the Vienna Convention on Consular Relations)

f) “host State”

The State in which the national of the sending State is arrested or committed to prison or to custody pending trial or is detained in any other manner (Article 36(1)(b) of the Vienna Convention on Consular Relations)

6. In accordance with Article 62(1) of the Court’s Rules of Procedure (hereinafter “the Rules of Procedure”) and on instructions from the President of the Court (hereinafter “the President”) to that effect, by note of December 11, 1997, the Secretariat of the Court (hereinafter “the Secretariat”) forwarded the text of the request to the member States of the OAS, to the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission”), to the Permanent Council and, through the OAS Secretariat General, to all the organs named in Chapter VIII of the OAS Charter. On that same date, the Secretariat notified all of the above that the President would set the deadline for submitting written comments or documents relevant to this matter during the Court’s thirty-ninth regular session.

7. After conferring with the other judges on the Court, on February 4, 1998, the President directed that written comments and documents relevant to the request be submitted by no later than April 30, 1998.

8. By order of March 9, 1998, the President convened a public hearing on the request, to be held at the seat of the Court on June 12, 1998, at 10:00 a.m., and instructed the Secretariat to summon to those oral proceedings any and all parties that had submitted written comments to the Court.

9. The Republic of El Salvador (hereinafter “El Salvador”) submitted its written comments to the Court on April 29, 1998.

10. The following States filed their written comments with the Court by April 30, 1998: the Dominican Republic, the Republic of Honduras (hereinafter “Honduras”) and the Republic of Guatemala (hereinafter “Guatemala”).

11. On May 1, 1998, Mexico filed a brief containing “additional considerations, new information and documents relevant to the request.”

12. In keeping with the extension that the President granted to the Republic of Paraguay (hereinafter “Paraguay”) and the Republic of Costa Rica (hereinafter “Costa Rica”), these two countries submitted their comments on May 4 and 8, 1998, respectively. The United States submitted its comments on June 1 of that year.

14. The following jurists, nongovernmental organizations and individuals submitted briefs containing the points of view of amici curiae between April 27 and May 22, 1998:

- la Comisión Mexicana para la Defensa y Promoción de Derechos Humanos (hereinafter “CMDPDH”), Human Rights Watch/Americas, and the Center for Justice and International Law (hereinafter “CEJIL”);

- International Human Rights Law Institute of DePaul University College of Law and MacArthur Justice Center of the University of Chicago Law School;

15. On June 12, 1998, before the public hearing convened by the President commenced, the Secretariat provided those present for the public hearing with a set of the comments and relevant documents submitted to date in the advisory proceedings.

Special Advisor to the Secretary of Foreign Affairs of the United Mexican States, Agent;

Director General for Consular Affairs and Protection, with the Secretariat of Foreign Affairs of the United Mexican States, Alternate Agent;

Director of Litigation, Office of Legal Affairs, Secretariat of Foreign Affairs of the United Mexican States, Alternate Agent;

Alternate Representative of the United Mexican States to the Organization of American States;

Coordinator of the Advisory Commission of the Ministry of Foreign Affairs of the Republic of El Salvador, Head of delegation;

Member of the Advisory Commission of the Ministry of Foreign Affairs of El Salvador;

Director of the Advisory Services Unit of the Ministry of Foreign Affairs of El Salvador, and

Chair of the Presidential Steering Commission for Executive Policy in Human Rights, Agent;

Executive Director of the Presidential Steering Commission for Executive Policy in Human Rights, Alternate Agent, and

Ambassador of the Republic of Honduras to the Government of the Republic of Costa Rica, Agent, and

Chargé d’affaires of the Embassy of the Republic of Honduras to the Government of the Republic of Costa Rica;

Permanent Representative of the Republic of Paraguay to the Organization of American States, Agent;

Ambassador of the Republic of Paraguay to the Government of the Republic of Costa Rica, Alternate Agent, and

Alternate Representative of the Republic of Paraguay to the Organization of American States, Alternate Agent;

Counselor with the Embassy of the Dominican Republic to the Republic of Costa Rica, Representative;

Assistant Legal Advisor for Consular Affairs, United States Department of State,

Assistant Legal Advisor for United Nations Affairs, United States Department of State;

Attorney Adviser, Office of the Assistant Legal Adviser for Consular Affairs, United States Department of State;

Principal Deputy Chief of the Criminal Appellate Section of the United States Department of Justice;

Principal Specialist with the Executive Secretariat of the Inter-American Commission on Human Rights.

17. At the public hearing, El Salvador and the Inter-American Commission delivered to the Secretariat the written texts of their oral arguments before the Court. In keeping with the President’s instructions in this regard, the Secretariat made a record of receipt of the submissions and provided copies of the documents to all those appearing before the Court.

18. Also during the public hearing, the United States presented a copy of a handbook titled “Consular Notification and Access: Instruction for Federal, State and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them,” published by the United States Department of State. The requesting State presented a brief titled “Explicación de las preguntas planteadas in la solicitud consultiva OC-16” [“Explanation of the questions raised in the request for Advisory Opinion OC-16”], three documents titled “Memorandum of Understanding on Consultation Mechanism of the Immigration and Naturalization Service Functions and Consular Protection,” “The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides,” and “Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent,” and a copy of a letter dated June 10, 1998, signed by Mr. Richard C. Dieter and addressed to the Court on ‘Death Penalty Information Center’ letterhead paper. As instructed by the President, the Secretariat made a record of receipt of these documents and made them available to all members of the Court.

19. At the conclusion of the public hearing, the President told those who had appeared before the Court that they could submit briefs of final comments on the advisory process underway, and set three months from the time the Secretariat transmitted the verbatim record of the public hearing to all the participants as the deadline for submission of those final comments.

20. On October 14, 1998, the requesting State submitted to the Court a copy of two documents, titled “Comisión General de Reclamaciones México–Estados Unidos. Caso Faulkner, Opinión y Decisión de fecha 2 de noviembre de 1926” [Mexican-United States General Claims Commission. Faulkner Claim, Opinion and Decision of 2 November 1926] and “Información adicional sobre los servicios de protección consular a nacionales mexicanos en el extrajero” [Additional information on consular protection services for Mexican nationals abroad].

21. By notes dated February 11, 1999, the Secretariat forwarded the verbatim record of the public hearing to all participants.

22. The following institutions and individuals who had appeared as amici curiae submitted briefs of final points of view: CMPDDH, Human Rights Watch/Americas and CEJIL, August 20, 1998; International Human Rights Law Institute of DePaul University College of Law, October 21, 1998; Mr. José Trinidad Loza, May 10, 1999, and Amnesty International, May 11, 1999.

23. The Inter-American Commission submitted its brief of final comments on May 17, 1999.

25. As directed by the President, on July 6, 1999, the Secretariat forwarded the briefs of additional comments submitted to this Tribunal, to all those who had participated in the proceedings and there informed them that the Court would scheduled its deliberations on the request for its ninety-fifth session, September 16 to October 2, 1999.

26. The following is the Court’s summary of the substance of the original briefs of comments submitted by the States participating in these advisory proceedings and those of the Inter-American Commission: [4]

United Mexican States: In its request, Mexico stated the following concerning the merits of the request:

The American States recognize that in the specific case the death penalty, the fundamental rights of a person must be scrupulously observed and respected, because that punishment causes irreparable loss of that “most fundamental of human rights that is the right to life”;

The jurisprudence of this Court, the doctrine of the Inter-American Commission and a number of UN resolutions have recognized that application of the death penalty must be conditional upon and subject to the restrictions imposed by strict observance of the judicial guarantees that the universal and regional human rights instruments uphold with regard to the due process in general and cases in which the death penalty is applicable;

When the detained persons are foreign nationals, it is evident that the minimum guarantees of criminal justice must be applied and interpreted in accordance with the Vienna Convention on Consular Relations, since otherwise they would be deprived of a “suitable means” to exercise those rights;

Prompt consular assistance may be decisive in the outcome of a criminal proceeding, because it guarantees, inter alia, that the foreign detainee is advised of his constitutional and legal rights in his own language and in a manner accessible to him, receives proper legal counsel, and understands the legal consequences of the crime of which he is accused, and

Consular agents may assist in the preparation, coordination and supervision of the defense, play a decisive role in obtaining, in the State of which the accused is a national, evidence that attests to mitigating circumstances and help make the circumstances of the accused and his relatives “more humane,” thereby helping to compensate for the real disadvantage at which they find themselves.

El Salvador In its brief of April 29, 1998, the Salvadoran State wrote the following:

The minimum necessary guarantees in criminal justice matters must be applied and interpreted in the light of the rights conferred upon individuals in Article 36 of the Vienna Convention on Consular Relations. Thus, failure to inform a detained person of those rights is a violation “of every rule of the due process because the judicial guarantees under international law are not being observed”;

Failure to comply with Article 36 of the Vienna Convention on Consular Relations can “in practice lead to wrongful executions […] that violate a person’s most fundamental right […], the right to life”, and

Application of the rules and principles embodied in international human rights instruments must be assured, strengthened and promoted, and observance of the minimum guarantees necessary for the due process must be assured.

Guatemala In its brief of April 30, 1998, the Guatemalan State wrote the following:

Given the rights and guarantees protected under Article 36 of the Vienna Convention on Consular Relations, that article can be said to contain provisions concerning the protection of human rights;

The language of Article 36(1)(b) of the Vienna Convention on Consular Relations establishes the fact that the enforceability of the rights it confers is not conditional upon protests filed by the State of nationality of the detained foreign national;

The expression “without delay” in Article 36(1)(b) of the Vienna Convention on Consular Relations implies that a foreign national detainee must be advised of his rights “as soon as possible upon being arrested, detained or taken into preventive custody” and that his communications are to be forwarded without delay to his country’s consular office;

In a case in which the death penalty has been imposed, the juridical consequences of the failure to give the notification required under Article 36(1)(b) of the Vienna Convention on Consular Relations should be decided by the domestic court that tried that particular case;

The provision contained in Article 14 of the International Covenant on Civil and Political Rights is the basis for application of the Safeguards guaranteeing protection of the rights of those facing the death penalty;

Failure to comply with the obligation contained in Article 36(1)(b) of the Vienna Convention on Consular Relations “could be a violation” of Article 14(3)(b) of the International Covenant on Civil and Political Rights;

The “minimum guarantees” referred to in Article 14(3) of the International Covenant on Civil and Political Rights encompasses the provisions of Article 35(1)(b) of the Vienna Convention on Consular Relations, and

The guarantee of nondiscrimination, upheld in Article 3(1) of the OAS Charter and Article II of the American Declaration, includes the matter of nationality.

Dominican Republic The Dominican Republic divided its written comments of April 30, 1998

into two parts. The first, titled “Observations […] with respect to the [request]”, states that

The purpose of Article 36 of the Vienna Convention on Consular Relations is to protect the human rights of the accused and their enforceability is not subject to protests from the State of nationality, because “the Convention is national law inasmuch as it was approved by the National Congress”;

The detainee must be informed of his rights under Article 36 of the Vienna Convention on Consular Relations at the time of his arrest and before he makes any statement or confession;