1 See Application Instituting Proceedings Submitted by the Government of the United Mexican States (Jan. 9, 2003), Avena (Mex.v. U.S.) (Int'l Ct. Justice) [hereinafter Avena application]; Application Instituting Proceedings Submitted by the Federal Republic of Germany (Mar. 2, 1999), LaGrand (Ger. v. U.S.) (Int'l Ct. Justice June 27, 2001); Application of the Government of Paraguay (Apr. 3,1998), Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 ICJ REP. 11 (Apr. 9) (commonly referred to as Breard). The pleadings, decisions, and basic documents of the International Court of Justice are available online at <http://www.icj-cij.org>.

2 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261 [hereinafter Vienna Convention].

3 Article 36(1) of the Vienna Convention provides that, “[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State,” (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

4 Avena (Mex. v. U.S.), Provisional Measures (Int'l Ct. Justice Feb. 5, 2003) [hereinafter Avena provisional measures order].

5 See id.; LaGrand (Ger. v. U.S.), Provisional Measures (Int'l Ct. Justice Mar. 3, 1999); Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 ICJ REP. 11 (Apr. 9). For a discussion of the LaGrand provisional measures order, see William J. Aceves, Case Report: Case Concerning the Vienna Convention on Consular Relations (Federal Republic of Germany v. United States) [LaGrand], 93 AJIL 924 (1999); for the Breard order, see William J. Aceves, Case Report: Application of the Vienna Convention on Consular Relations (Paraguay v. United States), 92 AJIL 517 (1998).

6 Mexico has forty-five consulates in the United States.

7 Avena application, supra note 1, para. 20.

8 Id., para. 22.

9 Id., para. 25.

10 Id., para. 26.

11 Id., para. 21.

12 In 2000, Mexico requested an advisory opinion from the Inter-American Court of Human Rights concerning the right of consular assistance. See The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Inter-American Court of Human Rights, Advisory Opinion No. OC-1/99 (1999); see also William J. Aceves, Case Report: The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, 94 AJIL 555 (2000).

13 Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24,1963,21 UST 325,596 UNTS 487. The Optional Protocol provides that disputes arising out of the interpretation or application of the Vienna Convention shall lie within the compulsory jurisdiction of the Court. Id., Art. I. Significantly, Mexico acceded to the Optional Protocol on March 5, 2002.

14 Avena application, supra note I, para. l.The Mexican application provided detailed information about each of the fifty-four cases.

15 Id., para. 2. Article 5 of the Vienna Convention describes various “consular functions.” Article 36 codifies the sending state's entitlements regarding communication and contact with its nationals.

16 Avena application, supra note 1, para. 2.

17 Id., para. 281.

18 On January 20, 2003, Mexico withdrew its request for provisional measures on behalf of three of the fifty-four Mexican nationals because their death sentences had been commuted.

19 Request for the Indication of Provisional Measures of Protection Submitted by the Government of the United Mexican States (Jan. 9, 2003), Avena (Mex. v. U.S.) (Int'l Ct. Justice Feb. 5, 2003) (on file with author).

20 Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 ICJ REP. 11 (Apr. 9). At the request of Paraguay, the case was discontinued on November 10, 1998.

21 LaGrand (Ger. v. U.S.), Provisional Measures (Int'l Ct. Justice Mar. 3, 1999).

22 LaGrand (Ger. v. U.S.), para. 125 (Int'l Ct. Justice June 27, 2001), 40 ILM 1069 (2001); see William J. Aceves, Case Report: LaGrand (Germany v. United States), 96 AJIL 210 (2002).

23 Verbatim Record, Avena (Mex. v. U.S.), ICJ Doc. CR 2003/1, paras. 51-83 (Jan. 21, 2003) (statement of Sandra Babcock). At the public hearings, Mexico was represented by Juan Manuel Gomez Robledo, Santiago Onatc, Alberto Székely, Sandra Babcock, and Donald Donovan. The United States was represented by William H. Taft IV, Stephen Mathias, Catherine Brown, James Thessin, Elihu Lauterpacht, and Daniel Collins.

24 Verbatim Record, Avena (Mex. v. U.S.), ICJ Doc. CR 2003/2, para. 3.10 (Jan. 21, 2003) (statement of Catherine Brown).

25 Id., para. 2.9 (statement of Stephen Mathias).

26 Judge Oda attached a separate declaration to the Court's order. While he voted in favor of the order, he expressed his doubts that there was a dispute arising out of the interpretation or application of the Vienna Convention.

27 Avena provisional measures order, supra note 4, para. 42.

28 Id., para. 46.

29 Id., para. 48 (quoting Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), Provisional Measures, 1996 ICJ REP. 13, para. 35 (Mar. 15)).

30 Id., para. 50 (quoting Passage Through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ REP. 12, para. 23 (July 29)).

31 Id., para. 54.

32 Id., para. 55.

33 Id., para. 59. The Court added that it would seek to reach a final judgment “with all possible expedition.” Id., para. 57.

34 LaGrand (Ger. v. U.S.), Provisional Measures, para. 29 (Int'l Ct. Justice Mar. 3, 1999) (emphasis added).

35 Avena provisional measures order, supra note 4, para. 59 (emphasis added). Similarly, the Avena order provides that the “Government of the United States of America shall inform the Court of all measures taken in implementation of this Order.” Id. (emphasis added).

36 See generally Note, Too Sovereign but Not Sovereign Enough: Are U.S. States Beyond the Reach of the Law of Nations ? 116 HARV. L. REV. 2654 (2003); Sean D. Murphy, Contemporary Practice of the United States, 97 AJIL 180 (2003); Aceves, supra note 22.

37 LaGrand (Ger. v. U.S.), para. 125 (Int'l Ct. Justice June 27, 2001), 40 ILM 1069 (2001).

38 U.S. courts have continued to struggle with the implications of Vienna Convention violations. See, e.g., Bieregu v. Ashcroft, 259 F.Supp.2d 342, 348 (D.N.J. 2003); Commonwealth v. Diemer, 57 Mass. App. Ct. 677, 684-85 (2003); United States ex rel. Madej v. Schomig, 223 F.Supp.2d 968 (N.D. 111. 2002); Valdez v. Oklahoma, 46 P.3d 703 (Okla. Crim. App. 2002).

39 In the case of Gerardo Valdez, a Mexican national sentenced to death in Oklahoma, the U.S. Department of State sent a letter to the governor of Oklahoma, asking that he consider the Vienna Convention violation as part of his clemency review. In announcing the denial of clemency, Governor Frank Keating noted that he had conducted a “review and reconsideration of Mr. Valdez's conviction and sentence by taking account of the admitted violation of Article 36 of the Vienna Convention” but that this violation, while “regretful and inexcusable,” did not affect the outcome of the trial. Letter from Frank Keating, Governor of Oklahoma, to Vicente Fox Quesada, President of Mexico (July 20, 2001), quoted in Sean D. Murphy, Contemporary Practice of the United States, 96 AJIL 461, 463 (2002).

40 Verbatim Record, supra note 23, para. 100 (statement of Donald Donovan).

41 Verbatim Record, supra note 24, para. 3.45 (statement of James Thessin).

42 Procedural default rules preclude a defendant from raising a claim on appeal that was not raised in earlier proceedings.