Marcial Valiente,

Alvaro Tirado Mej�a,

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.

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.

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;

Article 14 of the International Covenant on Civil and Political Rights must be interpreted in the light of the phrase "all possible safeguards to ensure a fair trial", the language of paragraph 5 of the Safeguards guaranteeing protection of the rights of those facing the death penalty; therefore, observance of Article 36(1)(b) of the Vienna Convention on Consular Relations is essential if the accused is to be afforded those guarantees, and

Failure to inform a detained foreign national of his rights under the Vienna Convention on Consular Relations is a violation of the OAS Charter and the American Declaration.

In the second half of its brief of April 30, 1998, titled "Report […] on the Advisory Opinion," the Dominican Republic repeated some of the comments expressed previously and added that:

Consular assistance derives from the right to nationality recognized in the Universal Declaration of Human Rights (hereinafter "the Universal Declaration"); the provisions of the Vienna Convention on Consular Relations must be observed if that consular assistance is to be effective;

The purpose of the provisions relating to observance of the due process is to assert a number of individual rights, such as equality before the courts and the right to be heard, without distinction; consular intervention sees to it that the correlative obligations that attend those rights are performed, and

Observance "without delay" of the provisions of Article 36 of the Vienna Convention on Consular Relations ensures the due process of law and protects the individual’s fundamental rights, "especially the most basic right of all, the right to life."

Honduras In its brief of April 30, 1998, the Honduran State wrote the following with respect to the jurisdiction of the Court:

The source of "consular notification" is Article 36 of the Vienna Convention on Consular Relations, which is the domestic law of the American States and, as such, enhances "the measures provided by the Hemisphere’s system for the protection of human rights," and

Under Article 29(b) of the American Convention, no provision of that Convention can be interpreted as restricting the Court’s advisory jurisdiction to interpret the request concerning "consular notification," even when the right to consular notification derives from a universal instrument.

States have an obligation to respect the minimum judicial guarantees upheld by international law in the case of a person "accused of a capital offense in a State of which he is not a national. The host State incurs international responsibility if it fails to honor that obligation";

International norms for the protection of fundamental rights must be interpreted and applied in a manner consistent with the international juridical system of protection;

Failure to comply with Article 36 of the Vienna Convention on Consular Relations concerning "communication with nationals of the sending State," is a violation of the human rights of the accused foreign national because it affects the due process and, in cases involving the death penalty, can violate the human right par excellence: the right to life";

Paraguay has a case against the United States before the International Court of Justice, concerning a failure to observe Article 36 of the Vienna Convention on Consular Relations (infra 28), and

Because the States’ systems differ, the consular function is essential to providing the affected national with immediate and timely assistance in the criminal proceedings and can affect the outcome of the case.

The considerations that gave rise to the request do not interfere with the proper functioning of the inter-American system and do not adversely affect the interests of any victim, and

In the present matter, the purpose of the Court’s advisory function is to further compliance with Article 36 of the Vienna Convention on Consular Relations, which concerns observance of the individual’s fundamental rights;

and on the merits of the request:

Domestic laws cannot stand in the way of proper performance of international human rights obligations;

The obligations that attend protection of the minimum guarantees and the requirements of the due process in respect of human rights are binding, and

all the entities of a federal State are bound by the international treaties that State signs.

The International Court of Justice had, at the time, a contentious case on its docket that involved the same issue that the requesting State had raised in these proceedings; hence, "prudence, if not considerations of comity, should lead th[e] Court to defer its consideration of the pending request until the International Court had rendered its decision interpreting the obligations of States party to the Vienna Convention on Consular Relations";

The Vienna Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, ratified by 53 States Party to that Convention, provides for conciliation or arbitration by agreement or referral of disputes to the International Court of Justice;

The request is patently an attempt to subject the United States to the contentious jurisdiction of this Court, even though the United States is not a party to the American Convention and has not accepted the Court’s contentious jurisdiction;

Mexico has presented a contentious case in the guise of a request for an advisory opinion. It cannot be settled without reference to specific facts that cannot be decided in an advisory proceeding;

The judicial records of the cases described in the request are not before the Court and the United States has not had the opportunity to refute the generalized allegations that the requesting State has made in connection with these cases;

Any decision by the Court, even of an advisory nature, would gravely affect the cases still pending before the respective judicial systems and seriously compromise the rights of the individuals and governments involved, including the victims of the crimes committed, who have not had the opportunity to participate in these proceedings, and

Were the Court to follow Mexico’s suggestion, it would call into question the basic fairness and sufficiency of any criminal proceeding conducted in the criminal justice systems of the States Parties to the Vienna Convention on Consular Relations that might result in a severe penalty and in which consular notification did not occur. "There is no basis in international law, logic, or morality for such a judgment and for the resulting disruption and dishonor to the many States parties to the Vienna Convention on Consular Relations";

Concerning the Vienna Convention on Consular Relations and consular assistance:

The Vienna Convention on Consular Relations is neither a human rights treaty nor a treaty "concerning" the protection of human rights. Instead, it is a multilateral treaty "of the traditional type concluded to accomplish reciprocal exchange of rights for the mutual benefit of the contracting States," in the sense interpreted by the Court in its second Advisory Opinion. In support of its argument, the United States asserts that the intent of the Vienna Convention on Consular Relations is to establish legal rules governing relations between States, not to create rules that operate between States and individuals; its Preamble states that the purpose of such privileges and immunities "is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States";

Not every obligation of States regarding individuals is perforce a human rights obligation. Nor does the fact that one provision in the Vienna Convention on Consular Relations may authorize beneficial assistance to certain individuals in certain circumstances transform the Vienna Convention into a human rights instrument or a source of the human rights of individuals;

Article 36 of the Vienna Convention on Consular Relations is in the section titled "Facilities, privileges and immunities relating to a consular post", and

Neither the Vienna Convention on Consular Relations nor any international human rights instrument creates the right to consular assistance. The former merely stipulates that a host State must inform a detainee that, if he requests, sending State consular authorities may be notified of his detention. "[W]hether, when and to what extent consular assistance is ultimately provided to the detainee is in the discretion of the sending State’s consular authorities." The United States describes the activities that its consular officers abroad perform when notified of the arrest of a United States citizen and from there concluded that no State provides the type of services that Mexico described in its request;

Concerning the nature of consular notification and its effects on the proceedings:

There is no evidence to support the premise that there exists a human right to consular notification or that it is a universal prerequisite to the observance of human rights.

If a defendant is treated fairly and with equality before the court, if he receives competent legal representation, and by such representation adequate time and facilities for the preparation of a defense, the failure to provide consular notification does not affect the integrity of the defendant’s human rights. By contrast, when the facts of a case demonstrate that a defendant did not receive the benefit of a fair trial and the due process protections, an inquiry properly results and remedies may be appropriate, regardless of consular notification.

Furthermore, consular notification is not a prerequisite for the observance of human rights and nonobservance does not invalidate criminal proceedings that otherwise "satisfy relevant human rights norms as reflected in national law";

The guarantees of the due process are to be given effect regardless of the nationality of the defendant and regardless "of whether consular relations exist between the host country and a foreign national defendant’s country." The United States reasons that if consular notification is to be considered a fundamental right, then the inference is that individuals who are nationals of States that have consular relations "have greater human rights than others" who are nationals of States that do not have relations of that type or States that are not party to the Vienna Convention on Consular Relations;

Neither the Vienna Convention on Consular Relations nor international human rights instruments require that proceedings in criminal cases be held in abeyance pending notification, and

Nothing in the texts of the respective human rights instruments and their negotiating histories makes reference, either implicitly or explicitly, to the right to consular notification.

Concerning the relationship of consular notification to the principle of equality before the law:

There is no basis for assuming that a foreign national will not effectively enjoy his rights without special measures being taken, because the needs and circumstances of each foreign national vary dramatically, from one who is completely unfamiliar with the host State’s language and customs (as in the case of an individual making a brief visit to a country) to complete language