court: icj

caseName: Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras)

publisher: International Court of Justice

title: Judgment of 18 December 2003

text: Convention on the Prevention and Punishment of the Crime of Genocide

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: YEAR 2003 2003

text: 18 December General List 18 December 2003 No. 127

type: stycke

text: APPLICATION FOR REVISION OF THE JUDGMENT OF 11 SEPTEMBER 1992 IN THE CASE CONCERNING THE

text: LAND, ISLAND AND MARITIME FRONT/ER DISPUTE (EL SALVADOR/HONDURAS: NICARAGUA intervening)

text: (EL SALVADOR v. HONDURAS)

text: Arric!e 61 of rhe Sralule - Appficalion for revision - Possibility for the Court at any ti me tv require previous compliance witl! the tenns of the judgment wfwse revision is sought, before it admits proceedings in revision - No role played by the consent of the parties as to admissibilily of {/11 application for revision. New jiu:ts alfeged by El Salvador in resper:t of the six th sector of the land boundury be/HJeen El Salvador and Honduras established in the Clwmber's Judgment of 11 September 1992: avulsion of the river Goascor(m; disco very of ajimher copy of the "Carla E.lférica" and of the report of the El Activo expedition in 1794 - Legal basis of 1 he Cfwmber "s decision in 1 he original ca xe - Alfeged new facts not decisive factors in respect of the 1992 Judgment - No need to ascertain whether the other conditions laid down in Article 61 of rhe Starure are sarisfied- lnadmissibility of the Application.

text: JUDGMENT

text: Present: Judge GuiLLAUME, President of the Chamber; Judges REZEK, BuEROENTH/IL; Judges ad hoc ToRRES BERNÀRDEz, PAOLJLLO; Registrar COUVREUR~

text: In the case concerning the Application for revision of the Judgment of Il September 1992,

text: belween

text: the Republic of El Salvador, represented by Mr. Gabriel Mauricio Gutiérrez Castro, as Agent; 1-I.E. Ms Maria Eugenia Brizuela de A vila, Minister for Foreign Affairs,

text: H.E. Mr. Rafael Zaldlvar Brizuela, Ambassador of El Salvador to the International Organizations in The Hague, as Co-Agents; Mr. Agustin Vasquez G6mez, as Deputy Agent; Mr. Antonio Remiro Brot6ns, Professor of International Law, Universidad Aut6noma de Madrid, Mr. Maurice Mendelson, Q.C., Professor Emeritus of International Law, University of London, as Counsel and Advocates; Mr. Mauricio Alfredo Clara, Mr. Domingo E. Acevedo, as Counsel; Ms Beatriz Borja de Miguel, Ms Patricia Kennedy, Ms Ana Mogorr6n Huerta, as Advisers; Mr. César Martinez, Ms Lililm Overdiek, Ms Cecilia Montoya de Guardado, as Assistants,

text: and

text: the Republic of Honduras, represented by H.E. Mr. Carlos L6pez Contreras, former Minister for Foreign AITairs, as Agent; H.E. Mr. Julio Rend6n Barnica, Ambassador of Honduras to the Netherlands, as Co-Agent; Mr. Pierre-Marie· Dupuy, Professor of International Law, Université de Paris II (Panthéon-Assas) and Institut universitaire européen de Florence, Mr. Luis ignacio Sanchez Rodrfguez, Professor of International Law, Universidad Complutcnse de Madrid, Mr. Philippe Sands, Q.C., Professor of Law, University College London,

text: Mr. Carlos Jiménez Piernas, Professor of International Law, Universidad de Alcala, Madrid, Mr. Richard Meese, avocat à la cour d'appel de Paris, as Counsel and Advocates; H.E. Mr. Anibal Quiii6nez Abarca, Deputy Minister for Foreign Affairs, H.E. Mr. Policarpo Callejas, Ambassador, Adviser to the Ministry of Foreign Affairs, Mr. Miguel Tosta Appel, Chairman of the Honduran National Section of the El Salvador-Honduras Demarcation Commission, as Counsel,

text: THE CHAMBER OF THE iNTERNATIONAL COURT OF JUSTICE formed to deal with the above-mentioned case, composed as above, after deliberation,

text: delivers the following Judgment:

text: On 10 September 2002 the Republic of El Salvador (hereinafter "El Salvador") fi led in the Registry of the Court an Application insti tuting proceedings dated the same day, whereby, citing Article 61 of the Statute and Articles 99 and 100 of the Rules of Court, it submitted a request to the Court for revision of the 1 udgment de li vered on Il September 1992 by the Cham ber of the Court formed to deal with the case concerning the Land, Island and Maritime Franlier Dispute (El Salvador/ Honduras: Nicaragua intervening) (!. C.J. Reports

text: 1992, p. 351).

text: Pursuant to Article 40, paragraph 2, of the Statu te, the Registrar communicated a certified copy of the Application to the Republic of Honduras (hereinafter "Honduras") on 10 September 2002. A copy of the Application was also communicated to the Republic of Nicaragua for information purposes, since that State had been authorized, pursuant to Article 62 of the Statute, to intervene in the original proceedings. ln accordance with Article 40, paragraph 3, of the Statute, ali States entitled to appear before the Court were notified of the Application. 3. ln its Application, El Salvador, citing Article 100, paragraph 1, of the Rules of Court, requested the Court "To proceed to form the Chamber that will hear the application for revision of the Judgment, bearing in mind the terms thal El Salvador and Honduras agreed upon in the Special Agreement of 24 May 1986."

text: The Parties, duly consulted by the President of the Court on 6 November 2002, expressed their wish for the formation of a new Chamber of five members, of whom two would be judges ad hoc to be chosen by them pursuant to Article 31, paragraph 3, of the Statu te. By a letter or 7 November 2002 the Agent of El Salvador informed the Court that his Government had chosen H.E. Mr. Felipe H. Paolillo to sit as judge ad hoc; and by a letter of 18 November 2002 the Agent of Honduras informed the Court that his Government had chosen Mr. Santiago Torres Bernardez to sit as judge ad hoc.

text: By an Order of 27 November 2002 the Court, acting pursuant to Article 26, paragraph 2, of the Statute and Article 17 of the Rules of Court, decided to accede to the request of the Parties that a special Chamber be formed to deal with the case; it declared thal, at an election held on 26 November 2002,

text: President Guillaume and Judges Rezek and Buergenthal had been elected to form a Chamber to deal with the case, together with the above"named judges ad hoc, stating further that the said Chamber as so composed bad accordingly been duly constituted pursuant to that Order. ln accordance with Article 18, paragraph 2, of the R ules of Court, J udge Guillaume, who held the office of President of the Court when the Chamber was formed, was to preside over the Chamber.

text: By the same Order, the Court, acting pursuant to Articles 92, paragraph 2, and 99, paragraph 2, of the Rules of Court, fixed 1 April 2003 as the time-limit for the filing of Written Observations by Honduras on the admissibility of the Application, and reserved the subsequent procedure for further decision.

text: On 1 April 2003, wi thin the time-limit fixed, Honduras filed in the Registry its Written Observations on the admissibility of El Salvador's Application.

text: In a letter of 8 April 2003 the Agent of El Salvador, referring to the Written Observations of Honduras, contended that the latter had submitted new documents with corresponding arguments, and that these required a response from El Salvador, accompanied by the necessary documents, and to thal end requested authorization for his Government to submit new documents. In a letter of 24 April 2003 the Co-Agent of Honduras opposed thal request. Following a meeting held by the President of the Cham ber with the Parties' Agents on 28 April 2003, the Chamber decided thal the filing of additional written pleadings was not necessary in the circumstances, thal the written proceedings were accordingly closed, and that, if El Salvador wished to submit new documents, its request would then be considered in accordance with the procedure laid down in Article 56 of the R ules of Court. The Registrar ad vised the Parties of this decision by letters dated 8 May 2003.

text: By a letter of 23 June 2003 El Sa! v ad or sough t authorization to prod uce new documents pursuant to Article 56 of the Ru les of Court. Th ose documents, having been filed in the Registry that same day, were transmitted to Honduras in accorda nee with paragraph 1 of th at Article. By a letter of 10 July 2003 Honduras informed the Cham ber that it objected to the production of those documents. El Salvador and Honduras were authorized to submit further observations on the matter, which they did by letters of 17 and 24 July 2003 respectively. After examining the views thus expressed by the Parties, the Cham ber decided, in accordance with Article 56, paragraph 2, of the Rules of Court, to authorize the production of only some of the documents submitted by El Salvador. The Chamber further noted that a new document attached by Honduras to its Observations of 10 July 2003 was admissible only if authorized pursuant to the same provision of the Rules, and decided not to authorize its production. By letters of 29 J uly 2003, the Deputy-Registrar informed the Parties of these decisions, advising them that, pursuant to Article 56, paragraph 3, Honduras was authorized to comment by not later than 19 August 2003 on the documents which the Chamber had authorized El Salvador to produce, and to submit documents in support of its comments. On 19 August 2003, within the timelimit thus fixed, Honduras filed its comments in the Registry together with four supporting documents.

text: Pursuant to Article 53, paragraph 2, of the Ru les of Court, the Cham ber, having ascertained the views of the Parties, decided to make accessible to the public, with cffect from the opening of the oral proceedings, copies of Honduras's Written Observations on the admissibility of El Salvador's Application and of the documents annexed to those Observations, together with al! new documents subsequently produccd by the Parties with the Chamber's authorization. Il . Public si ttings were held on 8, 9, 1 0 and 12 September 2003, at which the Chamber heard the oral arguments and replies of: For El Salvador: H.E. Ms Maria Eugenia Brizuela de Âvila, Mr. Maurice Mendelson, Mr. Antonio Remiro Brot6ns, Mr. Gabriel Mauricio Gutiérrez Castro. For Honduras: H.E. Mr. Carlos L6pez Contreras, Mr. Pierre-Marie Dupuy, Mr. Carlos Jiménez Piernas, Mr. Richard Meese, Mr. Luis Ignacio Sanchez Rodriguez, Mr. Philippe Sands.

text: In its Application, El Salvador made the f ollowing req ucsts :

text: "For all the foregoing reasons, the Republic of El Sa.lvador requests the Court: (a) To proceed to form the Chamber that will hear the application for revision of the Judgment, bearing in mind the terms thal El Salvador and Honduras agreed upon in the Special Agreement of 24 May 1986;

text: ( b) T o dccl a re the application of the Rcpublic of El Salvador admissible on the grounds of the existence of new facts of sncb a character as to lay the case open to revision under Article 61 of the Statute of the Court; and ( c) Once the application is admitted, to proceed to the revision of the Judgment of 11 September 1992, so thal a new Judgment will determine the boundary line in the sixth disputed sector of the land frontier between El Salvador and Honduras to be as follows: 'Starting from the old mouth of the Goascoràn river in the inlet kn own as the La Cu tu Estuary situa ted at la ti tude 13" 22' 00" N and longitude 8]0 41' 25" W, the frontier follows the old course of the Goascoran river for a distance of l 7,300 metres as far as the place known as the Rompici6n de los Amates situated at latitude 13 D 26' 29" N and longitude 8 r 43' 25" w, which . is where the Goasconln river changed its course.'"

text: In its Written Observations, Honduras made the following submission:

text: "ln view of the facts and arguments presented above, the Government of the Republic of Honduras requests the Chamber to declare inadmissible the Application for revision presented on 10 September 2002 by El Salvador."

text: At the oral proceedings, the following final submissions were presented by the Parties:

text: On behalf of the Governmenl of the Repubfic of Ef Salvador, "The Republic of El Salvador respectfully requests the Chamber, rejecting ail con trary daims and su bruissions to adj udge and declare tha t: 1. The application of the Republic of El Salvador is admissible based on the existence of new fa~.:ts of such a nature as to leave the case open to revision, pursuant to Article 61 of the Statute of the Court, and

text: 2. Once the request is admitted that it proceed to a revision of the Judgment of Il September 1992, so that a new judgment fixes the boundary line in the six th disputed sector of the land boundary between El Salvador and Honduras as follows: 'Starting at the old mouth of the Goascoran River at the entry point known as the Estero de la Cutu, located at latitude 13 degrees 22 minutes 00 seconds north and longitude 87 degrees 41 minutes 25 seconds west, the border follows the old bed of the Goascoràn River for a distance of 17,300 metres up to the place known as Rompici6n de Los Amates, located at latitude 13 degrees 26 minutes 29 seconds north and longitude 87 degrees 43 minutes 25 seconds west, which is where the Goascoràn River changed course."' On behalf of the Government of the Repubfic of Honduras. "ln view of the facts and arguments presented above, the Government of the Republic of Honduras requests the Chamber to declare the inadmissi bility of the A pp li ca ti on for Revision presented on 10 Septem ber 2002 by El Salvador."

text: By a J udgment of Il September 1992, the Cham ber of the Court formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening) deeided the course of the land boundary between El Salvador and Honduras in six disputed sectors of that boundary. By the same Judgment the Chamber settled the dispute between the Parties over the legal status of various islands in the Gulf of Fonseca and the legal status of waters in the Gulf and outside it.

text: El Salvador has submitted an Application to the Court for revision of the 1992 J udgmen t in respect of the six th sec tor of the land boundary, lying between Los Amates and the Gulf of Fonseca. During the original proceedings, it was the contention of Honduras that in that seetor "the boundary ... follows the present stream [ofthe River Goascorin], tlowing into the Gulf north-west of the lslas Ramaditas in the Bay of La Union". El Salvador however claimed that the boundary was defined by "a previous course followed by the river ... and that this course, si nee abandoned by the stream, can be traced, and it reaches the Gulf at Estero La Cutu" (Judgment, para. 306). ln the Judgment revision of which is now sought, the Cham ber unanlmously upheld the submissions of Honduras (Judgment, paras. 32\, 322 and 430). 17. 1 n i ts Application for revision of the 1992 J udgment, El Salvador relies on Article 61 of the Statu te, which provides:

text: "!. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. 2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground. 3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. 4. The application for revision must be made at latest within six months of the discovery of the new fact. 5. No application for revision may be made after the lapse of ten years from the date of the judgment."

text: Article 61 provides for revision proceedings to open with a judgment of the Court declaring the application admissible on the grounds contemplated by the Statute; Article 99 of the Rules of Court makes express provision for proceedings on the merits if, in its first judgment, the Court has declared the applîcation admissible. Thus the Statute and the Rules of Court foresee a "two-stage procedure". The first stage of the procedure for a request for revision of the Court's judgment should be "limited to the question of admissibility of th at request" (Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya). Judgment, l.C.J. Reports 1985, p. 197, paras. 8 and 10; Applicationfor Revision o.fthe Judgment of 11 July 1996 in the Case concerning Application of the

text: (Bosn ia and Herzegovina v. Y ugosla via), Prelîminary Objections ( Yugoslavia v. Bosnia and Herzegovina), Judgment, 1. C.J. Reports 2003, p. Il, para. 15).

text: Therefore, at this stage, the present Chamber's decision is lîmited to the question whether El Salvador's request satisf"ies the conditions contempla ted by the Statute. Und er Article 6\ , these con di ti ons are as follows:

text: (a) the application should be based upon the "discovery" of a "fact"; ( b) the fact the disco very of which is re lied on must be "of su ch a nature as to be a decisive factor"; ( c) the fact should have been "unknown" to the Court and to the party claiming revision when the judgment was given;

text: APPLICATION FOR REVISION (JUDGMEl\'T) 399

text: ( d) ignorance of this fact must not be "due to negligence"; and (e) the application for revision must be "made at latest within six months of the discovery of the new fact" and before ten years have elapsed from the date of the judgment.

text: The Chamber observes lastly that "an application for revision is ad missi ble on ly if each of the conditions laid dawn in Article 61 is sa tisfied. If any one of them is not met, the application must be dismissed." (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the

text: (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections ( Yugoslavia v. Bosnia and Herzegovina), Judgmenl, 1. C. J. Reports 2003, p. 12, para. 17 .)

text: However, El Salvador appears to argue in limine that there is no need for the Chamber to consider whether the conditions of Article 61 of the Statute have been satisfied. According ta the Applîcant, "Honduras implicitly acknowledged the admissibility of El Salvador's Application when, by letter dated 29 October 2002, it informed the distinguished President of the Court th at, pursuan t ta Article 61, paragraph 3, of the Statu te, it would ask th at the Court req uire previous compliance with the 1992 Judgment as a condition precedent to the admissibility of the Application for revision." In El Salvador's view, "The back step that Honduras took with its Jetter of 24 July 2003", by which it decided not to ask for prior compliance with the judgment, "does nothing to diminish [the] acknowledgment [of the admissibility of the Application], and instead serves to confirm it." The Chamber is consequently requested to "adjudge and decide accordingly".

text: The Chamber observes first that, in its letter of 29 October 2002, Honduras informed the President of the Court that it would ''request that the Court make the admission of the proceedings in revision conditional on previous compliance with the judgment" and that accordingly il would "submit a formai petition" ta that effect. However, Honduras never submitted that request and stated in its observations of24 July 2003 (see paragraph 9 above) that it had "decided, on reftection, not to ask the Chamber to require prior compliance with the terms of the Judgment". Th us, Honduras's conduct cannat be construed as implying a tacit acceptance of the admissibility of El Salvador's Application for revision.

text: Further, paragraph 3 of Article 61 of the Statute and paragraph 5 of Article 99 of the Rules of Court afford the Court the possibility at any time to require previous compliance with the terms of the judgment whose revision is sought, before it admits procecdings in revision; accordingly, even if Honduras bad submitted a request to the Court to require previous compliance without awaiting the Chamber's decision on the

text: ll admissibility of El Salvador's Application, the request would not have implied recognition of the admissibility of the Application. Finally, the Cham ber notes that, regardless of the parties' views on the admissibility of an application for revision, it is in any event for the Court, when seised of such an application, to ascertain whether the admissibility requirements laid dawn in Article 61 of the Statute have been met. Revision is not available simply by consent of the parties, but solely when the conditions of Article 61 are met.

text: In order properly to understand El Salvador's present contentions, it is necessary to recapitulate at the outset part of the reasoning in the 1992 Judgment in respect of the sixth sector of the land boundary. El Salvador admitted before the Chamber hearing the original case that the river Goascoran had been adopted as the provincial boundary during the period of Spanish colonization. lt argued, however, that "at some date [the Goascorân] abruptly changed its course to its present position. On this basis El Salvador's argument of law [was] that where a boundary is formed by the course of a river, and the stream suddenly leaves its old bed and forms a new one, this process of 'avulsion' does not bring about a change in the boundary, which continues to follow the old channel." (Para. 308.)

text: That was claimed to be the rule under both Spanish colonial law and international law. Thus, according to El Salvador, the boundary between the two States should be established not along the present stream of the river, flowing into the Bay of La Union, but along the "previous course ... since abandoned by the stream", probably during the seventeenth century, em ptying into the Estero La Cu tu (paras. 306 and 311).

text: After setting out this argument by El Salvador, the Chamber stated in its Judgment of Il September 1992 that "No record of such an abrupt change of course having occurred has been brought to the Chamber's attention" (para. 308). lt added: "were the Chamber satisfied that the river's course was earlier so radically different from its present one, then an avulsion might reasonably be inferred" (para. 308). The Chamber observed, however, th at: "The re is no scientific evidence th at the previons course of the Goascoran was such that it debouched in the Estero La Cutu" or in another neighbouring înlet (para. 309). 1t did not take a position on the consequences that any avulsion, occurring before or after 1821, would have had on provincial boundaries, or boundaries between States, under Spanish colonial law or international law.

text: The Chamber went on to find that "any claim by El Salvador that the boundary follows an old course of the river abandoned at some time before 1821 must be rejected. lt is a new daim and inconsistent with the previo us his tory of the dispute." (Para. 312.) T n this regard, the Cham ber noted inter alia that on severa! occasions, including in particular during the Saco negotiations between the two States in 1880, El Salvador had adopted conduct excluding any "daim ... that the 1821 boundary was not the 1821 course of the river, but an aider course, preserved as provincial boundary by a provision of colonial law" (para. 312).

text: The Chamber then considered "the evidence made available to it concerning the course of the river Goasconin in 1821" (para. 3 13). lt examined in particular a "chart (described as a 'Carta Esfërica') of the Gulf of Fonseca prepared by the captain and navigators of the brig or brigantine El Actil,o, who sailed in 1794, on the instructions of the Viceroy of Mexico, to survey the Gulf' (para. 314). It noted that the mouth of the Goascoran on that chart was "quite inconsistent with the old course of the river alleged by El Salvador, or, indeed, any course other than the present -da y one" (para. 314). The Cham ber con cl uded tha t "the report of the 1794 expedition and the 'Carta Esférica' le ave little room for doubt that the river Goascoran in 1821 was already flowing in its present-day course" (para. 316). Finally, after having examined various other arguments by El Salvador which it is not necessary to repeat here, the Chamber "found that the boundary follows the present course of the Goascoran" (para. 319) and defined the boundary line in the mouth of the river (paras. 320-322).

text: 25. ln its Application for revision, El Salvador, acting under Article 61 of the Statute, relies on facts which it considers to be new within the meaning of that Article; those facts relate, on the one hand, to the avulsion of the river Goascoràn and, on the other, to the "Carta Esférica" and the report of the 1794 El Ac/i)lo expedition.

text: El Salvador first daims to possess scientific, technical and historical evidence showing, contrary to what it understands the decision of the Chamber to have been, that the Goascoran did in the past change its bed, and tb at the change was abrupt, probably as a result of a cyclone in 1762.

text: In support of this contention El Salvador submits to the Chamber a report dated 5 August 2002 entitled Geologie, Hydrologie and Historie A.>pects of the Coascoran Delta- A Basis for Boundary Determination. lt also produces a study it conducted in 2002 "to check for the presence of vestiges of the Goascoran's original riverbed and additional information about its hydrographie behaviour". Finally, it refers to various pub-

text: !ications, including in particu!ar Geografia de Honduras by Ulises Meza Calix, published in 1916, and Monografia del Departamento de Valle, prepared under the direction of Bernardo Galindo y Galindo and published in 1934.

text: El Salvador argues that evidence can constitute "new facts" for purposes of Article 61 of the Statute. In this regard it relies on the travaux préparatoires of the provision of the Statute of the Permanent Court oflnternational Justice, on which Article 61 is modelled, which are said to confirm that a document can be considered to be a "new fact". It also invokes an arbitral award handed dawn on 7 August and 25 September 1922 by the Franco-German Mixed Arbitral Tribunal in the Heim et Chamant c. Etat allemand case, which, in El Salvador's view, re co gnized th at evidence can constitute "a fact".

text: El Salvador further contends that the evidence it is now offering establishes the existence of an old bed of the Goascoran debouching in the Estero La Cu tu, and the avulsion of the river in the mid-eighteenth century or that, at the very ]east, it justifies regarding such an avulsion as plausible. These are said to be "new facts" for purposes of Article 61.

text: The facts thus set out are, according to El Salvador, decisive. Tt maintains that the considerations and conclusions of the 1992 Judgment are founded on the rejection of an avulsion which, in the Chamber's view, had not been proved: that avulsion has ceased to be a matter of conjecture - it is an established fact which actually occurred. On the basis of Spanish colonial law, the provincial boundaries remained unchanged, notwithstanding the avulsion, untill821. El Salvador concludes that, contrary to what the Chamber held in 1992, the boundary arising from the uti possidetis juris should accordingly follow those boundaries and not the new course of the Goascoran.

text: El Salvador finally maintains that, given ali the circumstances of the case, in particular the "bitter civil war [which] was raging in El Salvador" "for virtually the whole period between 1980 and the handing dawn of the Judgment on Il September 1992", its ignorance of the various new facts which it now advances concerning the course of the Goascoran was not due to negligence. In particular, it states that the scientific and technical studies it has produced could not have been carried out previously, given bath the state of science and technology in 1992, and the political situation prevailing at the time in the six th sector of the boundary and, generally, in El Salvador and the region. As for the publications mentioned above (see paragraph 26), El Salvador contends thal it could not have "access to the documents in Honduras's National Archives and, despite ali its efforts, could not locate them in the archives of other States to which it did have access".

text: El Salvador concludes from the foregoing that, as the various conditions laid dawn by Article 61 of the Statute are satisfied, the Application for revision founded on the avulsion of the river Goasconin is admissible.

text: Honduras, for its part, argues that with regard to the application of Article 61 of the Statu te, i t is "well-esta blished case law tha t the re is a distinction in kind between the facts alleged and the evidence relied upon to prove them and that only the discovery of the former opens a right to revision". It quotes in this connection the Advisory Opinion rendered on 4 September 1924 by the Permanent Court of International Justice concerning the question of the Mona.Hery of Saint-Naoum. According to Honduras, a "fact" cannat "include evidentiary material in support of an argument, or an assertion, or an alle ga ti on". Accordingly, the evidence submitted by El Salvador cannat open a right to revision. Honduras adds that El Salvador bas not demonstrated the existence of a new fact discovered by El Salvador since 1992 "which establishes that the Goasconin River previously ran in a former bed which debouched at Estero La Cutu or that a process of 'avulsion' occurred, or that it occurred on a particular date". ln reality, El Salvador is seeking "a new interpretation of previously known facts" and asking the Chamber for a "genuine reversai" of the 1992 Judgment.

text: Honduras further maintains that the facts relied on by El Salvador, even if assumed ta be new and established, are not of such a nature as to be decisive factors in respect of the 1992 Judgment. According ta Honduras, "the material presented by El Salvador on that subject is irrelevant to the operative factual determination" made at that time by the Chamber. That decision is alleged to have been founded solely on the finding of fact that "from 1880, during the Saco negotiations, until 1972 El Salvador had treated the bounda.ry as being based on the 1821 course of the ri ver". The Cham ber is said to have acted on tha t ba sis ai one wh en in paragraph 312 of its Judgment it rejected El Salvador's daim "that the boundary follows an old course of the river abandoned at some time before 1821", considering it to be "a new daim and inconsistent with the previous history of the dispute". Thus, according to Honduras, it does not matter whether or not there was avulsion: avulsion is irrelevant to the ratio decidendi of the Cham ber.

text: Honduras argues lastly that El Salvador's ignorance in 1992 of the facts on which it is relying in the present proceedings in support of its theory of avulsion was due to negligence. El Salvador has "never proved that it exhausted - or even initiated - means that would have given it diligent knowledge of the facts that it is alleging today". ln Honduras's view, El Salvador could have had the scientific and technical studies and historical research which it is now relying on carried out before 1992.

text: Honduras concludes from the foregoing that, as the various conditions laid down by Article 61 of the Statu te have not been satîsfied, the Application for revision founded on the avulsion of the river Goascorân is not admissible.

text: Finally, the Parties raise the question whether the Application for revision was properly made within the six-month time-limit stipulated in paragraph 4 of Article 61 of the Statu te. They do acknowledge, however, that the Application was submitted within the ten-year time-limit provided for in paragraph 5 of that Article, specifically, one day before the expiry of that time-limit. Honduras main tains nevertheless that, by proceeding in this fashion, the Applicant showed procedural bad faith. That is denied by El Salvador.

text: Turning to consideration of El Salvador's submissions concerning the avulsion of the Goasconin, the Chamber recalls that an application for revision is admissible only if each of the conditions laid dawn in Article 61 is satisfied, and thal if any one of them is not met, the application must be dismissed; in the present case, the Cham ber will begin by ascertaining whether the alleged facts, supposing them to be new facts, are of such a nature as to be decisive factors in respect of the 1992 Judgment. 37. ln this regard, it is appropria te first to recall the considerations of principle on which the Chamber hearing the original case relied for its ruling on the disputes between the two States in six sectors of their land boundary. According to that Chamber, the boundary was to be determined "by the application of the principle generally accepted in Spanish America of the uti possidetis juris, whereby the boundaries were to follow the colonial administrative boundaries" (para. 28). The Chamber did however note that "the un possidetis juris position can be qualified by adjudication and by trea ty". I t reasoned from this th at "the question th en arises whether it can be qua.lified in other ways, for example, by acquiescence or recognition". Tt concluded that

text: "There seems to be no reason in principle why these factors should not operate, where there is sufficient evidence to show that the parties have in effect clearly accepted a variation, or at !east an interpretation, of the.uti possidetis juris position." (Para. 67.)

text: Applying these principles to the first sector of the land boundary, the Cham ber considered that in this sector "The situation was susceptible of modification by acq uiescence in the lengthy in tervening peri od" sin ce the early nîneteenth century. It added that, whatever may have been the colonial administrative bounda ries, "the co nd uct of Honduras from 1881 until 1972 may be regarded as amounting to such acquîescence" to a part of the boundary claimed by El Salvador in this sector (para. 80).

text: The Chamber proceeded similarly in paragraphs 306 to 322 of its Judgment in respect of the sixth sector. After having identified the abject of the dispute in this sector in paragrapb 306, the Cham ber first observed "that during the colonial period a river called the Goascoran constituted the boundary between two administrative divisions of the Captaincy-General of Guatemala: the province of San Miguel and the Alcaldia Mayor de Minas of Tegucigalpa" (para. 307).

text: The Parties were in agreement that El Salvador had succeeded in 1821 ta the terri tory of the Province of San Miguel. On the other band, they disagreed as ta whether or not the Alcaldia Mayor of Tegucigalpa had passed to Honduras. The Chamber decided that point in favour of Honduras (ibid.). The Chamber then considered "The contention of El Salvador that a former bed of the river Goasconin forms the uti possidetis juris boundary." ln this respect, it observed th at: "[this contention] depends, as a question of fact, on the assertion that the Goascorân formerly was running in that bed, and that at some date it abruptly changed its course to its present position. On this basis El Salvador's argument of law is that where a boundary is formed by the course of a river, and the stream suddenly leaves its old bed and forms a new one, this process of 'avulsion' does not bring about a change in the boundary, which continues to follow the old channel." (Para. 308.)

text: The Cham ber added that: "No record of such an abrupt change of course having occurred bas been brought to the Chamber's attention, but were the Chamber satisfied that the river's course was earlier so radically different from its present one, then an avulsion might reasonably be inferred."

text: (Ibid.)

text: Pursuing its consideration of El Salvador's argument, the Chamber did however note: "There is no scientific. evidence that the previous course of the Goascorân was such that it debouched in the Estero La Cutu . . . rather than in any of the other neigbbouring inlets in the coastline, such as the Estero El Cayo!." (Para. 309.) Turning to consideration as a matter of law of El Salvador's proposition concerning the avulsion of the Goascoràn, the Chamber observed that El Salvador "suggests ... that the change in fact took place in the 17th century'' (para. 311). lt concluded that, "On this basis, what international law may have to say, on the question of the shifting of rivers which form frontiers, becomes irrelevant: the problem îs main!y one of Spanish colonial law." (Para. 3 l 1.) At the conclusion of i ts considera tîon of El Salvador' s lîne of argument as to the avulsion of the Goascoran, the Chamber did not take any position on the existence of an earlier course of the Goascoran which might have debouched into the Estero La Cu tu, or on any avulsion of the river, nor a fortiori, on the date of any such avulsion or its legal consequences. It confined itself to defining the framework in which it could possibly have taken a position on these various points.

text: Beginning in paragraph 312 of the Judgment, the Chamber turned to a consideration of a different ground. At the outset, it tersely stated the conclusions which it had reached and then set out the reasoning supporting them. ln the view of the Chamber, "any daim by El Salvador that the boundary follows an old course of the river abandoned at some time before 1821 must be rejected. lt is a new daim and inconsistent with the previous history of the dispute." (Para. 312.)

text: The Chamber then noted: "A specifie assertion that the boundary should follow an abandoned course of the river Goascoran was first made during the Antigua negotiations in 1972" (para. 312). It also quoted an excerpt from the record of the negotiations between the two States at Saco in 1880, stating that the two delegates had agreed "to recognize" the river Goascoran "as the frontier between the two Republics, from its mouth in the Gulf of Fonseca, Bay of La Union, upstream in a north-easterly direction . . . " (ibid.). The Chamber observed that to interpret "the words 'River Goascorân' [in the text] as meaning a Spanish colonial boundary which in 1821 followed a long-abandoned course of the river, is out of the question" (ibid.). It added th at similar considerations applied to the circumstances of further negotiations in 1884 (para. 317).

text: Having on these grounds arrived at the conclusion that the boundary in 1821 followed the course of the Goascoran at that date, the Chamber turned to consideration of the evidence submitted to it in respect of that course (paras. 313 et seq. ), evidence which will be examined in due course (see paragraph 50 below).

text: It is apparent from this discussion that, white the Chamber in 1992 rejected El Salvador's daims that the 1821 boundary did not follow the course of the river at that date, it did so on the basis of that Statc's conduct during the nineteenth ccntury. ln other words, applying the general rule which it had enunciated in paragraph 67 of the Judgment, the Chamber proceeded, in paragraph 312, concerning the six th sector of the land boundary, by employing reasoning analogous to that which it had adopted in paragraph 80 in respect of the first sector. ln the six th sector, this reasoning led the Chamber to uphold the submissions of Honduras, while in the first sector it bad proved favourable to El Salvador's position.

text: ln short, it does not matter whether or not there was an avulsion of the

text: Goascoran. Even if avulsion were now proved, and even if its legal consequences were those inferred by El Salvador, findings to that effect would provide no basis for calling into question the decision taken by the Chamber in 1992 on wholly different grounds. The facts asserted in this connection by El Salvador are not "decisive factors" in respect of the Judgment which it seeks to have revised. In light of the 1992 Judgment, the Chamber cannot but reach such a conclusion, independently of the positions taken by the Parties on this point in the course of the present proceedings.

text: In support of its Application for revision, El Salvador relies on a second "new fact", that is, the disco very in the Ayer Collection of the Newberry Library in Chicago of a further copy of the "Carta Esférica" and of a further copy of the report of the expedition of the El Activa, thereby supplementing the copies from the Madrid Naval Museum to which the Chamber made reference in paragraphs 314 and 316 of its Judgment (sec paragraph 24 above). El Salvador states that in 1992, the Chamber had before it only copies of the documents that had been obtained from Madrid, and been produced by Honduras. lt contends that it was on the basis of those copies that the Chamber decided the "point at which the Goascoran emptied into the Gulf" and the course of the boundary. According to El Salvador, the documents discovered in Chicago differ from those in Madrid on severa! significant points. It main tains that: "The fact that there are severa! versions of the 'Carta Esférica' and the Report of the Gulf of Fonseca from the El Activa expedition, that there are differences among them and the anachronisms they share, compromises the evidentiary value that the Chamber attached to the documents that Honduras presented, essential in the Judgment [of 1992]." Further, the evidentiary value is claimed to be ali the more doubtful in that the Madrid documents enjoyed no official status and have not been certified to be originals. Accordingly, maintains El Salvador, there exists "a second new fact, whose implications for the Judgment have to be considered once the application for revision is admitted".

text: El Salvador adds that "[t]he discovery of hitherto unknown documents is a typical example of the type of fact which lays a case open to revision . . . either because they themselves constitute the factum or because they are the source of knowledge of them". It further states that "[e]vidence which rebuts a fact established by a judgment of which revision is sought undoubtedly constitutes afact for purposes of Article 61 of the Statute". El Salvador asserts that in the present case the fact in question predated the 1992 Judgment but was not "known at the time the Judgment was given". Thus, it is a "new fact" for purposes of Article 61. It is said to be decisive because its discovery has highlighted "the insubstantiality of the Madrid Naval Museum documents" from which the Chamber inferred "such significant" geographical "consequences".

text: Lastly, El Salvador states that the Ayer Collection is "not an indispensable reference source" and that the El Activa expedition was not a well-known expedition. lt refers in more general terms to the "bitter civil war [which] was raging in El Salvador" "for virtually the whole period between 1980 and the handing down of the Judgment on 11 September 1992". Accordingly, it argues, "El Salvador's ignorance until 2002 of the existence of copies of the El Activa documents in collections situated in out-of-the-way places cannot be characterized as 'negligent"'.

text: El Salvador concludes from the foregoing that, as the various conditions laid down by Article 61 of the Statute are satisfied, the Application for revision founded on the discovery of the new chart and new report is admissible.

text: For its part, Honduras denies that the production of the documents found in Chicago can be characterized as a new fact. This is simply "another copy of one and the same document already submitted by Honduras during the written stage of the case decided in 1992, and already evaluated by the Chamber in its Judgment". Honduras adds that it "never sought to argue the point whether the spherical chart was an original document (it always spoke of copies) or an official document". But it contends that there are no discrepancies between the three copies of the chart, merely "insignificant differences". Honduras maintains that those differences in no way contradict the content of the logbook. Finally, it notes that ali three charts place the mou th of the river Goascoran in its present-day position, a finding on which the 1992 Judgment was based and which in any event remains valid.

text: Honduras further states that the new documents produced by El Salvador were part of a prestigious public collection and have been included in the Newberry Library catalogue at !east since 1927. lt coneludes from this that El Salvador could easily have learned of th ose documents, and that it breached its duty of diligence in failing to seek them out or produce them before 1992. According to Honduras, no excuse for this failure can be found in the internai conflict prevailing in El Salvador at the time, as that conflict in no way prevented the conduct of research outside the national territory.

text: Honduras concludes from the foregoing that, as the various conditions laid down by Article 61 of the Statute are not satisfied, the Application for revision founded on the discovery of the new chart and the new report is not admissible.

text: Finally, as regards the conditions laid down in paragraphs 4 and 5 of Article 61 of the Statute, the Parties put forward arguments similar to those they made in respect of the avulsion of the Goasconin (see paragraph 35 above).

text: The Chamber will proceed, as it did in respect of the avulsion (see paragraph 36 above), to determine first whether the alleged facts concerning the "Carta Esférica" and the report of the El A ctivo expedition are of such a nature asto be decisive factors in respect of the 1992 Judgment.

text: It should be recalled in this regard that the Chamber in 1992, after having held El Salvador's daims concerning the old course of the Goascoran to be inconsistent with the previous history of the di§pute, considered "the evidence made available to it concerning the coùrse of the river Goascoran in 1821 " (para. 313). lt pa id pa rticular a ttçn ti on to the chart prepared by the captain and navigators of the vesse! El Activa around 1796, described as a "Carta Esférica", which Honduras had found in the archives of the Madrid Naval Museum. lt noted that the chart "appea.rs to correspond with considerable accuracy to the topography as shawn on modern maps. lt shows the 'Estero Cutu' in the same position as modern maps; and it also shows a river mouth, marked 'R2 Goascoran', at the point where the river Goascon'ln today flows into the Gulf. Since the chart is one of the Gulf, presumably for navigational purposes, no features inland are shawn except the ' ... best known volcanoes and peaks ... ' (' ... volcmœs y cerros mas conocidos .. .'), visible to mariners; accordingly, no course of the river upstream of îts mou th is indicated. Nevertheless, the position of the mouth is quite inconsistent with the old course of the river alleged by El Salvador, or, indeed, any course other than the present-day one. In two places, the chart indicates the old and new mouths of a river (e.g., 'Barra vieja del Rio Nacaume' and 'Nuevo Rio de Nacaume'); since no ancient mouth is shown for the Goasconin, this suggests that in 1796 it had for some considerable time flowed into the Gulfwhere indicated on the chart." (Para. 314.)

text: The Chamber theo analysed the report of the expedition and observed that it also places "the mouth of the river Goasconin at its present-day po si ti on" (ibid.). The Chamber concluded from the foregoing "that the report of the 1794 expedition and the 'Carta Esférica' leave little room for doubt that the river Goascoran in 1821 was already flowing in its present-day course" (para. 316).

text: The Judgment rendered by the Chamber in 1992 is thus based upon certain information conveyed by the "Carta Esférica" and the report of the El Activo expedition, in the versions held in Madrid. lt should therefore be determined whether the Chamber might have reached different conclusions in 1992 had it also had before it the versions of those documents from Chicago.

text: The Chamber observes in this connection that the two copies of the "Carta Esférica" held in Madrid and the copy from Chicago differ only as to certain details, such as, for example, the placing of titles, the legends, and the handwriting. These differences reflect the conditions under which documents of this type were prepared in the la te eighteenth century; they afford no basis for questioning the reliability of the charts that were produced ta the Chamber in 1992.

text: The Chamber notes further that the Estero La Cutu and the mou th of the Rio Goascoran are shawn on the copy from Chicago, just as on the copies from Madrid, at their present-day location. The new chart produced by El Salvador thus does not overturn the conclusions arrived at by the Chamber in 1992; it bears them out.

text: As for the new version of the report of the El Activo expedition found in Chicago, it differs from the Madrid version only in terms of certain details, such as the opening and closing indications, spelling, and placing of accents. The body of the text is the same, in particular in the identification of the mou th of the Goascorân. Here again, the new document produced by El Salvador bears out the conclusions reached by the Chamber in 1992.

text: The Chamber concludes from the foregoing that the new facts alleged by El Salvador in respect of the "Carta Esférica" and the report of the El Activo expedition are not "decisive factors" in respect of the Judgment whose revision it seeks.

text: Finally, El Salvador contends that proper contextua1ization of the alleged new facts "necessitates consideration of other facts that the Chamber weighed and that are now affected by the new facts". Moreover, El Salvador daims that

text: "other evidences and proofs exist that, while not a new fact, were not taken up in the proceedings and are useful, even essential, whether to supplement and confirm the new facts or to better understand them".

text: It cites the great eruption of Cosigüina volcano and the appearance of the Farallones del Cosigüina, the Saco negotiations between 1880 and \884, and the characteristics of the lower reaches of the river Goascorim.

text: Honduras responds that El Salvador, by submitting for the Chamber's consideration "evidence additional to the alleged new facts", is acting "as though the Court had to ignore its previous reasoning, on the

text: APPLICATION FOR REVISION (JUOGMENT) 411

text: pretext that it is in the light of the context that the existence or nonexistence of the alleged new facts falls to be assessed". In the view of Honduras, this approach would be tantamount to expanding "the restrictive list of elements in Article 61, paragraph 1, of the Court's Statute to unheard-of lengths, calculated to turn revision into a habituai method of appeal and to undermine the a uthori ty of res judica ta".

text: The Chamber agrees with El Salvador's view that, in arder to determine whether the alleged "new facts" concerning the avulsion of the Goascon1n, the "Carta Esférica" and the report of the El Activo expedition fall within the provisions of Article 61 of the Statu te, they should be placed in context, which the Chamber has done in paragraphs 23 to 55 above. However, the Chamber must recall that, under that Article, revision of a judgment can be opened only by "the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence". Thus, the Chamber cannat find admissible an application for revision on the basis of facts which El Salvador itself does not allege to be new facts within the meaning of Article 61.

text: Given the conclusions to which it has come in paragraphs 40, 55 and 58 above, it is not necessary for the Chamber to ascertain whether the other conditions laid dawn in Article 61 of the Statu te are satisfied in the present case.

text: For these reasons,

text: THE CHAMBER, By four votes to one, Finds that the Application submitted by the Republic of El Salvador for revision, under Article 61 of the Statute of the Court, of the Judgment given on ll September 1992, by the Chamber of the Court formed to deal with the case concerning the Land, Island and Marilime Frontîer Dispute (El Salvador/Honduras: Nicaragua inten,ening), is inadmissible. JN FAVOUR: Judge Guillaume, President of the Chamber: Judges Rezek, Buergenthal; Judge ad hoc Torres Bernàrdez; AGAINST: Judge ad hoc Paolillo.

text: Donc in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eighteenth day of December, two

text: thousand and three, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of El Salvador and the Government of the Republic of Honduras, respectively. (Signed) Gilbert GUILLAUME, President of the Cham ber. ( Signed) Philippe COUVREUR, Registrar.

text: Judge ad hoc PAOLILLO appends a dissenting opinion to the Judgment of the Chamber. (lnitialled) G.G. (Initia/led) Ph.C.

title: Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras)


doctype: beslut

caseName: Avena and Other Mexican Nationals (Mexico v. United States of America)

decisionType: order

procedure: Request for the Indication of Provisional Measures

reportsCitation: I.C.J. Reports 2003, p. 77

title: Order of 5 February 2003

text: International Covenant on Civil and Political Rights, article 6

text: INTERNATIONAL COURT O F JUSTICE

text: 2003 YEAR 2003 5 February General List No. 128 5 February 2003

text: CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS

text: (MEXICO v. UNITED STATES O F AMERICA)

text: REQUEST FOR THE INDICATION O F PROVISIONAL MEASURES

text: ORDER Present: President G U I L L A U M E ; Vice-President S H I ; Judges ODA, RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESH- CHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK, AL- KHASAWNEH, BUERGENTHAL, ELARABY; Registrar COUVREUR.

text: The International Court of Justice, Composed as above, After deliberation, Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court, Having regard to the Application filed in the Registry of the Court on 9 January 2003, whereby the United Mexican States (hereinafter "Mexico") instituted proceedings against the United States of America (hereinafter the "United States") for "violations of the Vienna Convention on Consular Relations (done on 24 April 1963)" (hereinafter the "Vienna Convention") allegedly committed by the United States,

text: Whereas in its aforementioned Application Mexico bases the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes, which accompanies the Vienna Convention on Consular Relations (hereinafter the "Optional Protocol");

text: Whereas the Application states that 54 Mexican nationals are on death row in the United States; whereas it is alleged that these individuals were arrested, detained, tried, convicted and sentenced to death by competent authorities of the United States following proceedings in which those authorities failed to comply with their obligations under Article 36, paragraph 1 ( b ) , of the Vienna Convention; whereas it is contended that this provision requires that the authorities of the receiving State inform without delay any national of another State detained by those authorities of his right to contact his consulate, that, if the detained national so requests, it further requires those authorities to inform without delay the nearest consular post of the State concerned of the detention, and lastly that it obliges those authorities to forward without delay any communication addressed to the consular post by the detained individual; and whereas it is alleged that, in the cases of 49 of the detained Mexican nationals, the competent authorities of the United States made no attempt at any time to comply with Article 36 of the Vienna Convention, that in the cases of four other detained individuals, the required notification was not made "without delay", and finally that in one case, while the detained national was informed of his rights, it was in connection with proceedings other than those involving capital charges against him ;

text: Whereas in its Application Mexico states that "[tlhe rights conferred by Article 36 . . . are not rights without remedies" and that in particular, as the Court determined in the Judgment delivered on 27 June 2001 in the case concerning LuGrand (Germany v. United States of A~nerica) : "If the receiving State fails to comply with Article 36, and the sending State's national has been subjected to 'prolonged detention or convicted and sentenced to severe penalties', . . . the receiving State must 'allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention'";

text: Whereas Mexico alleges that various rules of United States municipal law, specifically "[tlhe rule of procedural default, the need to show prejudice and the interpretation of the Eleventh Amendment of the United States Constitution followed by the United States tribunals", rendered ineffective al1 actions brought before state or federal courts in the United States seeking relief for the violations of the Vienna Convention, whether those actions were brought by Mexican nationals or by Mexico itself;

text: Whereas in the Application Mexico explains that it has made numerous démarches to the competent authorities of the United States with a view to vindicating its rights and those of its nationals, but that these authorities have consistently refused to provide relief adequate to put an end to these violations and to ensure Mexico that they will not reoccur in the future;

text: Whereas Mexico further notes that the diplomatic démarches which it has made over the last six years to the executive branch of the federal Government of the United States and to the competent authorities of the constituent States have been ineffective; whereas, despite many diplomatic protests during that period, those authorities carried out the execution of several Mexican nationals whose rights under the Vienna Convention had been violated; and whereas the only response ever received by Mexico from those authorities has consisted of formal apologies made after the executions;

text: Whereas in its Application Mexico maintains that the United States, by breaching its obligations under Article 36, paragraph 1 ( h ) , of the Vienna Convention, prevented Mexico from exercising its rights and performing its consular functions pursuant to Articles 5 and 36 of the Convention, which "could have prevented the convictions and death sentences"; whereas it contends that the steps taken by the United States to improve compliance with the Vienna Convention do not enable full effect to be given to the rights established by the Convention; whereas it claims that apologies by the United States in cases of breaches of the Convention are an insufficient remedy; and whereas Mexico accordingly asserts that it has suffered injury, in its own right and in the form of injury to its nationals, and that it is entitled to restitutio in intrgrum, that is to say, to the "reestablish[ment ofl the situation which would, in al1 probability, have existed if [the violations] had not been committed";

text: Whereas Mexico asks the Court to adjudge and declare:

text: "(1) that the United States, in arresting, detaining, trying, convicting, and sentencing the 54 Mexican nationals on death row described in this Application, violated its international legal obligations to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention;

text: (2) that Mexico is therefore entitled to restitutio in integrum; (3) that the United States is under an international legal obligation not to apply the doctrine of procedural default, or any other doctrine of its municipal law, to preclude the exercise of the rights afforded by Article 36 of the Vienna Convention;

text: (4) that the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against the 54 Mexican nationals on death row or any other Mexican national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power's functions are international or internal in character;

text: (5) that the right to consular notification under the Vienna Convention is a human right; and that, pursuant to the foregoing international legal obligations,

text: (1) the United States must restore the stutus quo unte, that is, reestablish the situation that existed before the detention of, proceedings against, and convictions and sentences of, Mexico's nationals in violation of the United States international legal obligations ;

text: (2) the United States must take the steps necessary and sufficient to ensure that the provisions of its municipal law enable full effect to be given to the purposes for which the rights afforded by Article 36 are intended; (3) the United States must take the steps necessary and sufficient to establish a meaningful remedy at law for violations of the rights afforded to Mexico and its nationals by Article 36 of the Vienna Convention, including by barring the imposition, as a matter of municipal law, of any procedural penalty for the failure timely to raise a claim or defence based on the Vienna Convention where competent authorities of the United States have breached their obligation to advise the national of his or her rights under the Convention; and

text: (4) the United States, in light of the pattern and practice of violations set forth in this Application, must provide Mexico a full guarantee of the non-repetition of the illegal acts";

text: Whereas, on 9 January 2003, after filing its Application Mexico also submitted a request for the indication of provisional measures in order to protect its rights, pursuant to Article 41 of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court;

text: Whereas in its request for the indication of provisional measures Mexico refers to the basis of jurisdiction of the Court invoked in its

text: Application, and to the facts set out and the submissions made therein; and whereas it reiterates in particular that the United States has systematically violated the rights of Mexico and its nationals under Article 36 of the Vienna Convention;

text: Whereas in the request for the indication of provisional measures Mexico states that three Mexican nationals, namely Messrs. César Roberto Fierro Reyna, Roberto Moreno Ramos and Osvaldo Torres Aguilera, risk execution within the next six months and that many other Mexican nationals could be executed before the end of 2003; and whereas Mexico further states that César Roberto Fierro Reyna's execution could take place as early as 14 February 2003;

text: Whereas in the request for the indication of provisional measures Mexico notes that the Court indicated provisional measures to prevent executions in two prior cases involving claims brought under the Vienna Convention by States whose nationals were subject to execution in the United States as a result of criminal proceedings conducted in violation of the Convention; whereas it states that "[tlhere can be no question of the importance of the interests at stake", that "[ilnternational law recognizes the sanctity of human life" and that "

text: Article 6

text: of the

text: International Covenant on Civil and Political Rights

text: , to which the United States is a State Party, establishes that every human being has an inherent right to life and mandates that States protect that right by law"; and whereas Mexico states in the following terms the grounds for its request and the possible conseyuences if it is denied :

text: "Unless the Court indicates provisional measures directing the United States to halt any executions of Mexican nationals until this Court's decision on the merits of Mexico's claims, the executive officiais of constituent states of the United States will execute Messrs. Fierro [Reyna], Moreno Ramos, Torres [Aguilera], or other Mexican nationals on death row before the Court has had the opportunity to consider those claims. In that event, Mexico would forever be deprived of the opportunity to vindicate its rights and those of its nationals. As the Court recognized in the LaGrarzd case, such circumstances would constitute irreparable prejudice . . .";

text: Whereas Mexico concludes that "[p]rovisional measures are therefore clearly justified in order both to protect Mexico's paramount interest in the life and liberty of its nationals and to ensure the Court's ability to order the relief Mexico seeks" ;

text: Whereas Mexico adds in its request that "[tlhere can also be no question about the urgency of the need for provisional measures";

text: Whereas Mexico states that, while it recognizes that the Court may wish to leave to the United States the choice of means to ensure compliance with the provisional measures ordered, it nevertheless requests that the Court "leave no doubt as to the required result";

text: Whereas Mexico notes specifically in its request that "[als a matter of international law, both the United States and its constituent political subdivisions have an obligation to abide by the international legal obligations of the United States"; and whereas Mexico takes the view that, "[hlaving undertaken international obligations on behalf of its constituent political entities, the United States should not now be heard to suggest that it cannot enforce their compliance with its obligations";

text: Whereas Mexico further states that, "[gliven the clarity of both international law and United States municipal law, there can be no doubt that the United States has the means to ensure compliance with an order of provisional measures issued by this Court pursuant to Article 41 (1) [of its Statute]";

text: Whereas Mexico asks that, pending final judgment in this case, the Court indicate :

text: " ( a ) that the Government of the United States take al1 measures necessary to ensure that no Mexican national be executed;

text: ( 6 ) that the Government of the United States take al1 measures necessary to ensure that no execution dates be set for any Mexican national ; (c) that the Government of the United States report to the Court the actions it has taken in pursuance of subparagraphs ( a ) and ( b ) ; and (d) that the Government of the United States ensure that no action is taken that might prejudice the rights of the United Mexican States or its nationals with respect to any decision this Court may render on the merits of the case";

text: and whereas Mexico further asks the Court to treat its request as a matter of the greatest urgency "[iln view of the extreme gravity and immediacy of the threat that authorities in the United States will execute a Mexican citizen" ;

text: Whereas on 9 January 2003, the date on which the Application and the request for the indication of provisional measures were filed in the Registry, the Registrar advised the Government of the United States of the filing of those documents and forthwith sent it originals of them, in accordance with Article 40, paragraph 2, of the Statute of the Court and with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas the Registrar also notified the Secretary-General of the United Nations of that filing;

text: Whereas on 9 January 2003 the Registrar informed the Parties that the President of the Court. in accordance with Article 74, paragraph 3, of the Rules of Court, had fixed 20 January 2003 as the date for the opening of the oral proceedings;

text: Whereas, pending notification under Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court by transmission, in two languages, of the printed text of the Application to the States entitled to appear before the Court, on 9 January 2003 the Registrar informed those States of the filing of the Application and of its subject-matter, and of the request for the indication of provisional measures;

text: Whereas, following the Registrar's subsequent consultations with the Parties, the Court decided to hear the Parties on 21 January 2003 concerning Mexico's request for the indication of provisional measures; and whereas the Parties were so advised by letters of 14 January 2003 from the Registrar;

text: Whereas by a letter of 17 January 2003, received in the Registry on the same dav. the United States Government informed the Court of the appointment of an Agent and a Co-Agent for the case;

text: Whereas by a letter of 20 January 2003 Mexico informed the Court that, further to the decision of the Governor of the State of Illinois to commute the death sentences of al1 convicted individuals awaiting execution in that State, it was withdrawing its request for provisional measures on behalf of three of the 54 Mexican nationals referred to in the Application: Messrs. Juan Caballero Hernandez, Mario Flores Urban and Gabriel Solache Romero; whereas it further stated that its request for provisional measures would stand for the other 51 Mexican nationals imprisoned in the United States and that "[tlhe application stands, on its merits, for the fifty-four cases";

text: Whereas, at the public hearings held on 21 January 2003 in accordance with Article 74, paragraph 3, of the Rules of Court, oral statements on the request for the indication of provisional measures were presented by the following representatives of the Parties:

text: On behaif' of Mexico : H.E. Mr. Juan Manuel Gomez Robledo, H.E. Mr. Santiago Ofiate, H.E. Mr. Alberto Székely, Ms Sandra Babcock, Mr. Donald Francis Donovan; On hehaif'ofthe United States: The Honorable William H. Taft, IV, Mr. Stephen Mathias, Ms Catherine W. Brown, Mr. James H. Thessin, Sir Elihu Lauterpacht, Mr. Daniel Paul Collins;

text: and whereas at the hearings a question was put by a Member of the Court, to which a n oral reply was given;

text: Whereas in the first round of oral argument Mexico restated the position set out in its Application and in its request for the indication of provisional measures, and stressed that the requirements for the indication by the Court of the provisional measures requested were met in the present case ;

text: Whereas Mexico has stressed that neither the apologies offered by the Government of the United States following the execution of Mexican nationals whose rights under the Vienna Convention had been violated, nor the review by an executive official "as a matter of grace and not of legal right" could represent a sufficient remedy for violations by competent authorities in the United States of obligations arising from the Vienna Convention; that a "meaningful 'review and reconsideration' of its nationals' claims in accord with the Judgment in LaGrand" requires the provision of "a remedy lit lait."; and that only the restoration of the stutus quo ante, that is, the re-establishment of the situation that existed before the violation, would be such a remedy;

text: Whereas Mexico has insisted that, unless provisional measures are indicated by the Court, three of its nationals, namely Messrs. Fierro Reyna. Moreno Ramos and Torres Aguilera, risk execution in the next few months and that many others could also be at risk of execution before the Court rules on the merits; and whereas it accordingly contends that the condition of urgency required for the indication of provisional measures is satisfied;

text: Whereas in the first round of oral argument the United States contended that the request by Mexico was without foundation in fact or in law and that the requirements for the Court to indicate provisional measures were not met;

text: Whereas the United States submitted that the Court had ruled in the LuCrand case that, where there had been a violation of the obligation of notification prescribed by Article 36, paragraph 1 ( h ) , of the Vienna Convention "in death penalty cases", the remedy to be provided by the receiving State was to ensure that there was in every case review and reconsideration of the decision; whereas it stated that, following the L ~ ~ G r u n d case. the competent authorities in the United States had instituted measures providing for review and reconsideration in al1 such cases, that so far these measures had proved effective and that there was no reason to think that they would not be effective in future cases; whereas it added that the receiving State was, on the other hand, under no obligation to quash al1 convictions and to recommence the trial process in such cases; and whereas the United States accordingly concluded that the request by Mexico seeking, by way of indication of provisional measures, to preserve a right to the restoration of the stutus quo unte was not a request seeking preservation of a right protected by the Vienna Convention, and that therefore the request should be denied;

text: Whereas the United States further contended that the request by Mexico did not satisfy the condition of urgency and did not show that imminent serious harm was likely, because United States proceedings in each of the 51 cases were continuing and none of the Mexican nationals covered by the request for indication of provisional measures was scheduled to be executed; and whereas it pointed out that in some of the cases referred to by Mexico no violation of Article 36 of the Vienna Convention had been established, that in others Mexico would have an opportunity to raise any failure of notification at a later stage in the domestic legal proceedings, and, finally, that review and reconsideration remained available in al1 the cases;

text: Whereas the United States further maintained that the request by Mexico was too sweeping and did not respect the essential balance of the rights of the Parties because, if it were accepted by the Court, it would prejudice the sovereign right of the United States to operate its criminal justice system; and whereas the United States concluded that the order for the indication of provisional measures requested by Mexico "would constitute a wholly unprecedented and unwarranted interference with the sovereign rights of the United States even as it goes far beyond preserving Mexico's rights under the Convention";

text: Whereas in its second round of oral argument Mexico stated that it could not accept the conclusions derived by the United States from the Court's Judgment in the LaGrand case in regard to the remedies available for breaches of its obligations under Article 36 of the Vienna Convention; whereas Mexico added that the Court would not, however, need to address those issues until its examination of the merits of the case; and whereas it submitted that the purpose of its request was unquestionably to preserve rights arising out of the Vienna Convention and that its request should accordingly be upheld;

text: Whereas Mexico contended that, for the condition of urgency to be met, it was sufficient that there was a "likely" threat of irreparable prejudice, and that in the present case, since execution dates for the Mexican nationals named in the request could be set at any time by the competent authorities of the United States and since, once those dates had been set, those nationals could be executed at very short notice, the condition of urgency was accordingly met;

text: Whereas, finally, Mexico argued that an order of the Court enjoining the United States not to proceed with the execution of the said Mexican nationals could not be considered as capable of causing any real harm to the legitimate interest of the United States in operating its criminal justice system;

text: Whereas in its second round of oral argument the United States stressed the fact that, following the Court's Judgment in the LaGrand case, it had put in place a vast programme to ensure compliance with the obligation of notification under Article 36, paragraph 1 (b), of the Vienna Convention and had also taken measures to ensure review and reconsideration in al1 death penalty cases where that obligation had been breached; and whereas the United States reiterated its view that Mexico's request for the indication of provisional measures was not consistent with the LaGrand Judgment and that it was seeking to preserve non-existent rights, so that there was neither any risk of irreparable prejudice nor any urgency; whereas the United States further pointed out that, according to the United States Supreme Court, "the clemency power . . . [was] an integral mechanism in the administration of Our criminal laws", and "clemency 'has provided a fail-safe in Our criminal justice system'";

text: Whereas at the hearings a Member of the Court put the following question to the Agent of the United States:

text: "Under what circumstances will the Legal Adviser of the State Department notify an appellate court rather than later notify a clemency body of the obligations of the United States consequent upon an admitted violation of Article 36 of the Vienna Convention? 1s the matter simply one of timing?";

text: whereas, in response to that question, the Agent stated inter aliu the following :

text: "We . . . have made a conscious choice to focus Our efforts on clemency proceedings for providing the review and reconsideration this Court called for in LaGrand. [That Judgment] expressly left the choice of means of providing the review and reconsideration to the United States[.] . . . [Cllemency proceedings provide a more flexible process that is best suited for achieving, without procedural obstacles, the review and reconsideration this Court called for";

text: and whereas the Agent added that his

text: "Government would . . . inform a court upon request, at any time, of the international legal obligations of the United States, and how in the particular posture of a given case they [might] or [might] not apply and whether and how they might be carried out under the applicable domestic law in that court", while explaining that "a court [might] determine . . . that domestic law principles still preclude[d] an express judicial remedy for a failure of consular notification" ;

text: Whereas, on a request for the indication of provisional measures, the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;

text: Whereas Article 1 of the Optional Protocol, which Mexico invokes as the basis of jurisdiction of the Court in the present case, is worded as follows : "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 a written application made by any party to the dispute being a Party to the present Protocol";

text: Whereas, according to the information communicated by the Secretary-General of the United Nations as depositary, Mexico and the United States have been parties to the Vienna Convention since 16 June 1965 and 24 November 1969 respectively, and to the Optional Protocol since 15 March 2002 and 24 November 1969 respectively, in each case without reservation;

text: Whereas Mexico has argued that the issues in dispute between itself and the United States concern Articles 5 and 36 of the Vienna Convention and fall within the compulsory jurisdiction of the Court under Article 1 of the Optional Protocol; and whereas it has accordingly concluded that the Court has the jurisdiction necessary to indicate the provisional measures requested; and whereas the United States has said that it "does not propose to make an issue now of whether the Court possesses prima facie jurisdiction, although this is without prejudice to its right to contest the Court's jurisdiction at the appropriate stage later in the case" ;

text: Whereas, in view of the foregoing, the Court accordingly considers that, prima facie, it has jurisdiction under Article 1 of the aforesaid Optional Protocol to hear the case;

text: Whereas in its Application Mexico, as stated previously (see paragraph 8 above), asks the Court to adjudge and declare that, the United States "violated its international legal obligations to Mexico, in its own right and in the exercise of its right of consular protection of its nationals, as provided by Articles 5 and 36, respectively of the Vienna Convention"; whereas Mexico seeks various measures aimed at remedying these breaches and avoiding any repetition thereof; whereas it contends, the Court should preserve the right to such remedies by calling upon the United States to take al1 necessary steps to ensure that no Mexican national is executed and that no execution date be set in respect of any such national:

text: Whereas the United States acknowledges that, in certain cases, Mexican nationals have been prosecuted and sentenced without being informed of their rights pursuant to Article 36, paragraph 1 ( b ) , of the Vienna Convention; whereas it argues, however, that in such cases, in accordance with the Court's Judgment in the LaGrand case, the United States has the obligation "by means of its own choosing, [to] allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention"; whereas it submits that in the specific cases identified by Mexico the evidence indicates the commitment of the United States to providing such review and reconsideration; whereas the United States contends that such review and reconsideration can occur through the process of executive clemency - an institution "deeply rooted in the Anglo-American system of justice" - which may be initiated by the individuals concerned after the judicial process has been completed; whereas it claims that such review and reconsideration has already occurred in several cases during the last two years; that none of the Mexicans "currently under sentence of death will be executed unless there has been a review and reconsideration of the conviction and sentence that takes into account any failure to carry out the obligations of Article 36 of the Vienna Convention"; that, under the terms of the Court's decision in the LaGrand case, this is a sufficient remedy for its breaches, and that there is accordingly no need to indicate provisional measures intended to preserve the rights to such remedies;

text: Whereas, according to Mexico. the position of the United States amounts to maintaining that "the Vienna Convention entitles Mexico only to review and reconsideration, and that review and reconsideration equals only the ability to request clemency"; whereas "the standardless, secretive and unreviewable process that is called clemency cannot and does not satisfy this Court's mandate [in the LaGrand case]";

text: Whereas there is thus a dispute between the Parties concerning the rights of Mexico and of its nationals regarding the remedies that must be provided in the event of a failure by the United States to comply with its obligations under Article 36, paragraph 1, of the Vienna Convention; whereas that dispute belongs to the merits and cannot be settled at this stage of the proceedings; whereas the Court must accordingly address the issue of whether it should indicate provisional measures to preserve any rights that may subsequently be adjudged on the merits to be those of the Applicant ;

text: Whereas the United States argues, however, that it is incumbent upon the Court, pursuant to Article 41 of its Statute, to indicate provisional measures "not to preserve only rights claimed by the Applicant, but 'to preserve the respective rights of either party'"; that, "[alfter balancing the rights of both Parties, the scales tip decidedly against Mexico's request in this case"; that the measures sought by Mexico to be implemented immediately amount to "a sweeping prohibition on capital punishment for Mexican nationals in the United States, regardless of United States law", which "would drastically interfere with United States sovereign rights and implicate important federalism interests"; that this would, moreover, transform the Court into a "general criminal court of appeal", which the Court has already indicated in the past is not its function; and that the measures requested by Mexico should accordingly be refused :

text: Whereas the Court, when considering a request for the indication of provisional measures, "must be concerned to preserve . . . the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent" (Land und Muritinle Boundary betiz,een Cameroon and Nigeria (Cumeroon v. Nigeria), Provisional Measures, Order oj 15 Murch 1996, I.C.J. Reports 1996 ( I ) , p. 22, para. 3 5 ) , without being obliged at this stage of the proceedings to rule on those rights; whereas the issues brought before the Court in this case "do not concern the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes"; whereas "the function of this Court is to resolve international legal disputes between States, inter ulia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal"; (LaCrand f Cermuny v. United States o f Anzerica), Provisional Measures, Order o f 3 Murch 1999, I. C. J. Reports 1999 ( I ) , p. 15, para. 25); whereas the Court may indicate provisional measures without infringing these principles; and whereas the argument put forward on these specific points by the United States accordingly cannot be accepted;

text: Whereas

text: "the power of the Court to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings" (ihid. pp. 14-15, para. 22);

text: Whereas, moreover, "provisional measures under Article 41 of the Statute are indicated 'pending the final decision' of the Court on the merits of the case, and are therefore only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given" (Passage through the Great Belt (Finland v. Dennîark), Provisional Meusures, Order of 29 July 1991, I. C. J. Reports 1991, p. 17, para. 23);

text: 5 1. Whereas Mexico's principal request is that the Court should order the United States "to take measures sufficient to ensure that no Mexican national be executed and that no date for the execution of a Mexican national be set"; whereas the jurisdiction of the Court is limited in the present case to the dispute between the Parties concerning the interpretation and application of the Vienna Convention with regard to the individuals which Mexico identified as being victims of a violation of the Convention; whereas, accordingly, the Court cannot rule on the rights of Mexican nationals who are not alleged to have been victims of a violation of that Convention;

text: Whereas, however, Mexico argues that 54 of its nationals have been sentenced to death following proceedings that allegedly violated the obligations incumbent on the United States under Article 36, paragraph 1 ( b ) , of the Vienna Convention; whereas Mexico provides a list of those nationals and some information relating to their respective cases; whereas it adds that three of them have had their sentences commuted; whereas at the oral proceedings its Agent requested that the United States be ordered "to refrain from fixing any date for execution and from carrying out any execution in the case of the 51 Mexican nationals covered by the Application, until the Court has been able to decide on the merits of the case":

text: Whereas the United States'argues that no execution date has been scheduled with respect to any of the Mexican nationals concerned (see paragraph 31 above); whereas it points out that this is so both for the three individuals specifically named in its request for the indication of provisional measures and in regard to the others; whereas it observes that, in the case of these latter, "any execution date is even more remote"; and whereas it accordingly concludes that the request for the indication of provisional measures is thus premature;

text: Whereas "the sound administration ofjustice requires that a request for the indication of provisional measures founded on Article 73 of the Rules of Court be submitted in good time" LuGrand (Germuny v. United States of America), Provisional Measures, Order of 3 Murch 1999, I. C. J. Reports 1999 ( I ) , p. 14, para. 19); whereas, moreover, the Supreme Court of the United States observed, when considering a petition seeking the enforcement of an Order of this Court, that: "It is unfortunate that this matter came before us while proceedings are pending before the ICJ that might have been brought to that court earlier" (Breard v. Greene, 523 US 371, 378 (1998)); whereas, in view of the rules and time-limits governing the granting of clemency and the fixing of execution dates in a number of the States of the United States, the fact that no such dates have been fixed in any of the cases before the Court is not per se a circumstance that should preclude the Court from indicating provisional measures;

text: Whereas it is apparent from the information before the Court in this case that three Mexican nationals, Messrs. César Roberto Fierro Reyna, Roberto Moreno Ramos and Osvaldo Torres Aguilera, are at risk of execution in the coming months, or possibly even weeks; whereas their execution would cause irreparable prejudice to any rights that may subsequently be adjudged by the Court to belong to Mexico; and whereas the Court accordingly concludes that the circumstances require that it indicate provisional measures to preserve those rights, as Article 41 of its Statute provides;

text: Whereas the other individuals listed in Mexico's Application, although currently on death row, are not in the same position as the three persons identified in the preceding paragraph of this Order; whereas the Court may, if appropriate, indicate provisional measures under Article 41 of the Statute in respect of those individuals before it renders final judgment in this case:

text: Whereas it is clearly in the interest of both Parties that their respective rights and obligations be determined definitively as early as possible; whereas it is therefore appropriate that the Court, with the cooperation of the Parties. ensure that a final judgment be reached with al1 possible expedition;

text: Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves; and whereas it leaves unaffected the right of the Governments of Mexico and the United States to submit arguments in respect of those questions;

text: For these reasons,

text: Unanimously. 1. Indicutes the following provisional measures: ( a ) The United States of America shall take al1 measures necessary to ensure that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgment in these proceedings; ( h ) The Government of the United States of America shall inform the Court of al1 measures taken in implementation of this Order.

text: I I . Decides that, until the Court has rendered its final judgment, it shall remain seised of the matters which form the subject of this Order.

text: Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this fifth day of February, two thousand and three, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the United Mexican States and the Government of the United States of America, respectively.

text: (Signed) Gilbert GUILLAUME: President. (Signed) Philippe COUVREUR, Registrar.

text: Judge ODA appends a declaration to the Order of the Court.

text: (Initialled) G.G. (Initialled) Ph.C.

title: Avena and Other Mexican Nationals (Mexico v. United States of America)

type: avgorande