Bulacan State University

College of Law
City of Malolos, Bulacan

______________

PUBLIC INTERNATIONAL LAW CASES

______________

MEXICO v. US
KWAN v. US

______________

ATTY. MARIANO C. HUBAHIB

______________

Tuazon, Ronald Jr., P.

Juris Doctor 2-B

31 March 2004
 Avena and Other Mexican Nationals
(Mexico v. United States of America)
The Court finds that the United States of America has
breached its obligations
to Mr. Avena and 50 other Mexican nationals and to
Mexico
under the Vienna Convention on Consular Relations

THE HAGUE, 31 March 2004. Today the

International Court of Justice, the principal judicial organ
of the United Nations, delivered its Judgment in the case
concerning Avena and Other Mexican Nationals
(Mexico v. United States of America).

In its Judgment, which is final, without appeal and

binding on the Parties, the Court, with regard to the
merits of the dispute,
- finds by fourteen votes to one that, by not informing,
without delay upon their detention, the 51 Mexican
nationals referred to in paragraph 106 (1) above of their
rights under Article 36, paragraph 1 (b), of the Vienna
Convention on Consular Relations of 24 April 1963, the
United States of America breached the obligations
incumbent upon it under that subparagraph;

- finds by fourteen votes to one that, by not notifying the

appropriate Mexican consular post without delay of the
detention of the 49 Mexican nationals referred to in
paragraph 106 (2) above and thereby depriving the
United Mexican States of the right, in a timely fashion, to
render the assistance provided for by the Vienna
Convention to the individuals concerned, the United
States of America breached the obligations incumbent
upon it under Article 36, paragraph 1 (b);

- finds by fourteen votes to one that, in relation to the

49 Mexican nationals referred to in paragraph 106 (3)
above, the United States of America deprived the United
Mexican States of the right, in a timely fashion, to
communicate with and have access to those nationals and
1.
to visit them in detention, and thereby breached the
obligations incumbent upon it under Article 36,
paragraph 1 (a) and (c), of the Convention;

- finds by fourteen votes to one that, in relation to the

34 Mexican nationals referred to in paragraph 106 (4)
above, the United States of America deprived the United
Mexican States of the right, in a timely fashion, to arrange
for legal representation of those nationals, and thereby
breached the obligations incumbent upon it under
Article 36, paragraph 1 (c), of the Convention;

- finds by fourteen votes to one that, by not permitting

the review and reconsideration, in the light of the rights
set forth in the Convention, of the conviction and
sentences of Mr. Csar Roberto Fierro Reyna,
Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres
Aguilera, after the violations referred to in
subparagraph (4) above had been established in respect
of those individuals, the United States of America
breached the obligations incumbent upon it under
Article 36, paragraph 2, of the Convention;

- finds by fourteen votes to one that the appropriate

reparation in this case consists in the obligation of the
United States of America to provide, by means of its own
choosing, review and reconsideration of the convictions
and sentences of the Mexican nationals referred to in
subparagraphs (4), (5), (6) and (7) above, by taking
account both of the violation of the rights set forth in
Article 36 of the Convention and of paragraphs 138 to 141
of this Judgment;
- unanimously takes note of the commitment undertaken
by the United States of America to ensure implementation
of the specific measures adopted in performance of its
obligations under Article 36, paragraph 1 (b), of the
Vienna Convention; and finds that this commitment must
be regarded as meeting the request by the United
Mexican States for guarantees and assurances of non-
repetition;
2.
- unanimously finds that, should Mexican nationals
nonetheless be sentenced to severe penalties, without
their rights under Article 36, paragraph 1 (b), of the
Convention having been respected, the United States of
America shall provide, by means of its own choosing,
review andreconsideration of the conviction and sentence,
so as to allow full weight to be given to the violation of
the rights set forth in the Convention, taking account of
paragraphs 138 to 141 of this Judgment.
Reasoning of the Court
In its Judgment the Court begins by outlining the
history of the case. It recalls that on 9 January 2003
Mexico instituted proceedings against the United States of
America in a dispute concerning alleged breaches of
Articles 5 and 36 of the Vienna Convention on Consular
Relations of 24 April 1963 in relation to the treatment of a
number of Mexican nationals who had been tried,
convicted and sentenced to death in criminal proceedings
in the United States. The original claim related to 54 such
persons, but as a result of subsequent adjustments by
Mexico, only 52 individual cases are involved. On
9 January 2003 Mexico also asked the Court to indicate
provisional measures, and in particular to order the United
States to take all measures necessary to ensure that no
Mexican national was executed pending a final decision of
the Court. On 5 February 2003 the Court unanimously
adopted an Order indicating such measures, stating inter
alia that the United States of America shall take all
measures necessary to ensure that
Mr. Csar Roberto Fierro Reyna,
Mr. Roberto Moreno Ramos and
Mr. Osvaldo Torres Aguilera . . . are not executed pending
final judgment in these proceedings.
The Court then examines four objections of the
United States to the Court's jurisdiction and five to the
admissibility of the claims of Mexico. It rejects those
objections after first having rejected the objection of
Mexico to the admissibility of the United States
objections.

3.
 Ruling on the merits of the case, the Court first
addresses the question of whether the 52 individuals
concerned had Mexican nationality only, or whether some
of them were also United States nationals, as claimed by
that State. Concluding that the United States has not
proved that claim, the Court finds that the United States
did have obligations (to provide consular information)
under Article 36, paragraph 1 (b), of the Vienna
Convention towards the 52 Mexican nationals.
The Court then examines the meaning of the
expression without delay used in paragraph 1 (b) of
Article 36. It finds that the duty to provide consular
information exists once it is realized that the person is a
foreign national, or once there are grounds to think so,
but considers that, in the light inter alia of the
Convention's travaux prparatoires the term without
delay is not necessarily to be interpreted as meaning
immediately upon arrest. The Court then concludes
that, on the basis of this interpretation, the United States
has nonetheless violated its obligation to provide consular
notification in all of the cases save one.
The Court then takes note of the interrelated
nature of the three subparagraphs (a), (b) and (c) of
paragraph 1 of Article 36 of the Vienna Convention and
finds, in 49 of the cases, that the United States has also
violated its obligation under subparagraph (a) to enable
Mexican consular officers to communicate with, have
access to and visit their nationals; while, in 34 cases, it
finds that the United States has also, in addition, violated
its obligation under subparagraph (c) to enable Mexican
consular officers to arrange for legal representation of
their nationals.

The Court then turns to Mexico's submission in

relation to paragraph 2 of Article 36, whereby it claims
that the United States violated its obligations under that
paragraph by failing to provide meaningful and effective
review and reconsideration of convictions and sentences
impaired by a violation of Article 36 (1), inter alia as a
result of the operation of the procedural default
4.
rule. The Court begins by observing that the procedural
default rule has not been revised since it drew attention in
its Judgment in the LaGrand case to the problems which
its application could cause for defendants who sought to
rely on violations of the Vienna Convention in appeal
proceedings. The Court finds that in three cases
paragraph 2 of Article 36 has been violated by the United
States, but that the possibility of judicial re-examination is
still open in 49 of the cases.
Turning to the legal consequences of the
above-found breaches and to what legal remedies should
be considered, the Court notes that Mexico seeks
reparation in the form of restitutio in integrum, that is
to say partial or total annulment of conviction and
sentence, as the necessary and sole remedy. The
Court, citing the decision of its predecessor, the
Permanent Court of International Justice, in the Chorzw
Factory case, points out that what is required to make
good the breach of an obligation under international law is
reparation in an adequate form. Following its Judgment
in the LaGrand case the Court finds that in the present
case adequate reparation for violations of Article 36
should be provided by review and reconsideration of the
convictions and sentences of the Mexican nationals by
United States courts.

The Court considers that the choice of means for

review and reconsideration should be left to the United
States, but that it is to be carried out by taking account of
the violation of rights under the Vienna Convention.

The Court then addresses the function of

executive clemency. Having found that it is the judicial
process that is suited for the task of review
and reconsideration, the Court finds that the
clemency process, as currently practised within the United
States criminal justice system, is not sufficient in itself to
serve that purpose, although appropriate clemency
procedures can supplement judicial review and
reconsideration.
5.
 Finally, with regard to Mexico's request for the
cessation of wrongful acts by the United States, the Court
finds no evidence of a regular and continuing pattern of
breaches by the United States of Article 36 of the Vienna
Convention. And as to its request for guarantees and
assurances of non-repetition the Court recognizes the
United States efforts to encourage implementation of its
obligations under the Vienna Convention and considers
that that commitment by the United States meets
Mexico's request.

At the end of its reasoning, the Court emphasizes

that, in the present case, it has been addressing issues of
principle from the viewpoint of the general application of
the Vienna Convention. It observes that, while the
present case concerns only Mexicans, its Judgment cannot
be taken to imply that the Court's conclusions do not
apply to other foreign nationals finding themselves in
similar situations in the United States.

The Court finally points out that its Order of

5 February 2003 indicating provisional measures
mentioned above, according to its terms and to Article 41
of the Statute, was effective pending final judgment, and
that the obligations of the United States in that respect
are, with effect from the date of the Judgment, replaced
by those declared in this Judgment. The Court observes
that it has found in relation to the three persons
concerned in the Order (among others), that the United
States has committed breaches of its obligations under
Article 36, paragraph 1, of the Vienna Convention; and
that moreover, in respect of those three persons alone,
the United States has also committed breaches of
Article 36, paragraph 2. The review and reconsideration
of conviction and sentence required by Article 36,
paragraph 2, which is the appropriate remedy for
breaches of Article 36, paragraph 1, has not been carried
out. The Court considers that in these three cases it is for
the United States to find an appropriate remedy having
6.
the nature of review and reconsideration according to the
criteria indicated in the Judgment.

Composition of the Court

The Court was composed as follows: President Shi; Vice-

President Ranjeva; Judges Guillaume, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal, Elaraby, Owada,
Tomka; Judge ad hoc Seplveda; Registrar Couvreur.

President Shi and Vice-President Ranjeva append

declarations to the Judgment of the
Court; Judges Vereshchetin, Parra-Aranguren and Tomka
and Judge ad hoc Seplveda append separate opinions to
the Judgment of the Court.

United States Court of Appeals,Federal Circuit.

Kang Joo KWAN and Se Jeik Park, Plaintiffs-
Appellants, v. UNITED STATES, Defendant-
Appellee.
No.01-1104.
Decided: November 27, 2001

Before MAYER, Chief Judge, NEWMAN and RADER, Circuit

Judges.Stewart J. Eisenberg,Weinstein, Goss, Schleifer,
Eisenberg, Winkler & Rothweiler, P.C, of Philadelphia, PA, for
plaintiffs-appellants. Michael S. Raab, Attorney, Appellate Staff,
Civil Division, Department of Justice of Washington, DC, for
defendant-appellee. With him on the brief was Mark B. Stern,
Attorney, Appellate Staff.

Kang Joo Kwan, for himself and as representative of Korean

veterans of the Vietnam conflict, and Se Jeik Park, for 270
members of the Korean National Assembly, seek payment by
the United States of moneys asserted to have been promised to
Korean veterans of the Vietnam conflict but not paid. The
United States District Court for the Eastern District of
Pennsylvania held that Messrs. Kwan and Park lack standing to
enforce a government-to-government obligation, and that their
7.
claims are nonjusticiable political questions. 1 We affirm that
decision. The district court also dismissed the Republic of
Korea as a party; no objection has been raised to that
dismissal.

DISCUSSION
This action arises from the participation in the Vietnam conflict
of military forces from the Republic of Korea. Various inter-
governmental documents relate to this participation. Of direct
relevance is a letter from United States Ambassador to Korea
Winthrop G. Brown to the Korean Minister of Foreign Affairs
dated March 4, 1966, wherein the United States agreed to
provide military and economic assistance and also to pay the
Republic of Korea death and disability gratuities resulting from
casualties in Vietnam at double the rates recently agreed to by
the Joint United States Republic of Korea Military Committee.
This letter is herein called the Brown Commitment. It was
discussed and reported in United States Security Agreements
and Commitments Abroad, Republic of Korea: Hearings Before
the Subcomm. on United States Security Agreements and
Commitments Abroad of the Senate Comm. on Foreign
Relations, 91st Cong., 2d Sess. Part 6 (1970). The district court
reports, citing these Hearings, that pursuant to the Brown
Commitment the United States paid death and disability
payments to the Republic of Korea, through the Minister of
National Defense, of $10.5 million. The appellants state that
the United States has refused to pay,2 and seek payment
directly from the United States to eligible recipients. Suit was
filed in the district court under the Little Tucker Act, 28 U.S.C.
1346(a)(2).

The Brown Commitment concerns an arrangement between

the government of the United States and the government of the
Republic of Korea. As an instrument of foreign affairs, it is
called an executive agreement. Although not a treaty, treaty
principles have been applied to interpreting executive
agreements. In United States v. Belmont, 301 U.S. 324, 330-
331, 57 S.Ct. 758, 81 L.Ed. 1134 (1937) the Court explained
that an international compact is not always a treaty which
requires the participation of the Senate, analyzing an executive
agreement on treaty principles. In Weinberger v. Rossi, 456
U.S. 25, 30 n. 6, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982) the
Court reiterated that although the term treaty has a
restrictive definition in the Constitution, executive agreements
8.
lacking the formalities of the Treaty Clause may in appropriate
circumstances have an effect similar to treaties. See also,
e.g., Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th
Cir.1995) (Executive agreements are interpreted in the same
manner as treaties and reviewed by the same standard.); Air
Canada v. United States Dep't of Trans., 843 F.2d 1483, 1486
(D.C.Cir.1988) (interpreting an international executive
agreement according to the principles applicable to treaties).

When the foundation document is an agreement between

governments, non-governmental entities can not ordinarily
challenge either their interpretation or their implementation, in
the absence of express authorization for such private action.
The Court in the Head Money Cases (Edye v. Robertson), 112
U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884), explained that the
judicial courts do not have the power to enforce a treaty that
does not confer a private right of action:
A treaty is primarily a compact between independent nations.
It depends for the enforcement of its provisions on the interest
and the honor of the governments which are parties to it. If
these fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party
chooses to seek redress, which may in the end be enforced by
actual war. It is obvious that with all this the judicial courts
have nothing to do and can give no redress.

Id. at 598, 5 S.Ct. 247. See also, e.g., United States v. Li, 206
F.3d 56, 60 (1st Cir.2000) (en banc) (recognizing divergent
conclusions as to whether the Vienna Convention creates
privately enforceable rights in the federal courts); United States
ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.1975) (even
when a treaty provides certain private benefits, such as fishing
rights, under international law any rights are those of nations,
and any individual rights are derivative through the nation).

The district court correctly held that the Brown Commitment,

even if viewed as a treaty, permits no private right of
enforcement by or on behalf of Korean veterans who may be its
beneficiaries. Since the obligations in the Brown Commitment
were not legislatively executed, they can not be judicially
enforced. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed.
415 (1829) ([W]hen either of the parties engages to perform a
particular act, the treaty addresses itself to the political, not the

9.
judicial department; and the legislature must execute the
contract before it can become a rule for the Court.)

The appellants argue that this case is similar to others in which

courts have determined that a particular treaty did, in fact,
provide a private right of action. The authorities to which the
appellants refer concern, variously, a criminal defendant's right
to raise the defense that his prosecution would violate
extradition treaties or human rights treaties, and the rights of a
foreign citizen provided by treaties concerning property and
inheritance. For example, appellants cite United States v.
Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), in
which the Court found that a defendant extradited for a
particular crime pursuant to an extradition treaty with Great
Britain could not be tried for an additional crime. Rauscher and
its principles are inapposite, for extradition treaties relate to the
jurisdiction of the courts over a foreign defendant; they do not
provide a private right of action to enforce a political promise.

Nor do the various property and inheritance treaties provide

rights beyond their terms, whereby persons may rely on treaty
commitments to protect or enforce their rights. These treaty
principles have been applied in varied circumstances, none
comparable to the situation here. See, e.g., Kolovrat v.
Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961)
(treaty protects alien's right to inherit property, preventing state
from taking property for itself); Cook v. United States, 288 U.S.
102, 53 S.Ct. 305, 77 L.Ed. 641 (1933) (violation of a treaty with
Great Britain preventing seizure of British vessel was a defense
against action for civil penalty against ship attempting to
smuggle liquor into the United States); Ware v. Hylton, 3 U.S. (3
Dall.) 199, 1 L.Ed. 568 (1796) (treaty allowed plaintiffs, who
were British creditors, to recover debts from citizens of Virginia
despite a state law canceling those debts). These treaties do
not provide a private right of action to enforce an obligation
between the United States and a foreign government, whether
or not the plaintiff would be a beneficiary thereof.

The plaintiffs, apparently recognizing that precedent and

custom weigh against their cause, ask that the Brown
Commitment be viewed as a contract of which they are the
intended third party beneficiary. However, the appellants cite no
authority, and we know of none, whereby an individual has
been found entitled to judicial enforcement of a government-to-
10.
government agreement on the legal theory that they are third
party beneficiaries of the agreement. The district court ruled
that [t]he commitment by Ambassador Brown was made on
behalf of the United States to the government of the Republic of
Korea and not to the individual Korean veterans, and because
in the past payments under the Brown Commitment were made
directly to the Republic of Korea and not to the individual
veterans, it is clear that issues between the two nations as to
the amount of the payments was intended to be resolved by
government to government negotiations. 84 F.Supp.2d at 623-
24. Such negotiations are consigned to the executive branch
in its conduct of foreign relations. See Harisiades v.
Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512, 96 L.Ed. 586
(1952) (the conduct of foreign relations is confined to the
political arms of government); Chicago & Southern Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92
L.Ed. 568 (1948) (foreign policy decisions are of a kind for
which the Judiciary has neither aptitude, facilities nor
responsibility and have long been held to belong in the domain
of political power not subject to judicial intrusion or inquiry);
Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309,
62 L.Ed. 726 (1918).

The political question doctrine often requires a delicate

exercise in constitutional interpretation, Baker v. Carr, 369 U.S.
186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), based on the
principle of separation of powers and the constitutional
assignment of the conduct of foreign affairs to the executive
branch. The doctrine requires careful case-by-case analysis.
Id. See, e.g., Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82
L.Ed.2d 171 (1984) (the issue of freedom to travel); Dames &
Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918
(1981) (the issue of freezing foreign assets and suspending
claims); Committee of United States Citizens Living in
Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C.Cir.1988) (political
acts raised justiciable constitutional claims). Applying these
principles, we conclude that the Brown Commitment does not
raise issues of fundamental liberty interests and personal rights,
but manifests its character as a government-to-government
agreement within the sole authority of the Executive, and
confers no private right of action. Compliance remains in the
arena of foreign policy and foreign relations.
The district court determined that the standing of the plaintiffs
turns on whether the Republic of Korea has formally protested
11.
a violation of the rights of the individual plaintiffs under the
Brown Commitment. Kwan, 84 F.Supp.2d at 619. To meet
this criterion the appellants point to a letter from the Embassy
of the Republic of Korea to the State Department, which raised
the question of additional compensation based on exposure to
Agent Orange. The letter stated that the Korean government
was not able to claim compensation in this regard during or
shortly after the Vietnam conflict because the medical problems
resulting from exposure to Agent Orange can only be detected
after the lapse of quite a long period of time, and requests
discussion of the question. The district court held that this
letter was not an official protest. However, whatever the
diplomatic character of the letter and the intergovernmental
relationship from which it arose, the presence or absence of an
official protest has not been shown to control whether there is a
private right of action for judicial enforcement of an executive
agreement.

Appellants also refer to the national treatment provisions of

the Treaty of Friendship, Commerce and Navigation between the
United States and the Republic of Korea, 8 U.S.T. 2217 (entered
into force Nov. 7, 1957). This treaty establishes, inter alia, that
nationals of one country have the same access to the courts of
the other as do the nationals of the other country. However,
this treaty does not redefine justiciable subject matter.
Although not every case or controversy which touches foreign
relations lies beyond judicial cognizance, New Jersey v. United
States, 91 F.3d 463, 469 (3d Cir.1996) (quoting Baker v. Carr,
369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)), the
issues raised as to the Brown Commitment are matters of
foreign affairs and policy, and do not meet the criteria of judicial
resolution. The district court's ruling to this effect is affirmed.
No costs.
AFFIRMED.

12.
13.