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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 and 74 of the Rules of Court,
Having regard to the Application instituting proceedings filed in the
Registry of the Court on 5 June 2008 by the Government of the United Mexican
States (hereinafter “Mexico”), whereby, referring to Article 60 of the
Statute and Articles 98 and 100 of the Rules of Court, Mexico
requested the Court to interpret paragraph 153 (9) of the Judgment delivered
by the Court on 31 March 2004 in the case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America) (hereinafter “the Avena
Judgment”),
Makes the following Order:
1. Whereas in its Application Mexico states that in paragraph 153 (9) of the
Avena Judgment the Court found “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” mentioned in the Judgment, taking into
account both the violation of the rights set forth in Article 36 of the
Vienna Convention on Consular Relations (hereinafter “the Vienna
Convention”) and paragraphs 138 to 141 of the Judgment; whereas it is
alleged that “requests by the Mexican nationals for the review and
reconsideration mandated in their cases by the Avena Judgment have
repeatedly been denied”;
2. Whereas Mexico claims that, since the Court delivered its Judgment in the
Avena case, “[o]nly one state court has provided the required review and
consideration, in the case of Osvaldo Torres Aguilera”, adding that, in the
case of Rafael Camargo Ojeda, the State of Arkansas “agreed to reduce Mr.
Camargo’s death sentence to life imprisonment in exchange for his agreement
to waive his right to review and reconsideration under the Avena Judgment”;
and whereas, according to Mexico, “[a]ll other efforts to enforce the Avena
Judgment have failed”;
3. Whereas it is explained in the Application that, on 28 February 2005, the
President of the United States of America (hereinafter the “United States”),
George W. Bush, issued a Memorandum (also referred to by the Parties as a
“determination”); whereas it is stated in the Application that the
President’s Memorandum determined that state courts must provide the
required review and reconsideration to the 51 Mexican nationals named in the
Avena Judgment, including Mr. Medellín, notwithstanding any state procedural
rules that might otherwise bar review of their claims; whereas the
President’s Memorandum reads as follows:
“I have determined, pursuant to the authority vested in me as President by
the Constitution and laws of the United States, that the United States will
discharge its international obligations under the decision of the
International Court of Justice in [Avena], by having State courts give
effect to the decision in accordance with general principles of comity in
cases filed by the 51 Mexican nationals addressed in that decision”;
and whereas a copy of that Memorandum was attached as an exhibit to the
brief filed on behalf of the United States as amicus curiae in the case of
Mr. José Ernesto Medellín Rojas against the State of Texas, brought before
the Supreme Court of the United States;
4. Whereas, according to Mexico, on 25 March 2008, in Mr. Medellín’s case,
the Supreme Court of the United States, while acknowledging that the Avena
Judgment constitutes an obligation under international law on the part of
the United States, ruled that “the means chosen by the
President of the United States to comply were unavailable under the US
Constitution” and that “neither the Avena Judgment on its own, nor the
Judgment in conjunction with the President’s Memorandum, constituted
directly enforceable federal law” precluding Texas from “applying state
procedural rules that barred all review and reconsideration of Mr.
Medellín’s Vienna Convention claim”; and whereas Mexico adds that the
Supreme Court did confirm, however, that there are alternative means by
which the United States still can comply with its obligations under the
Avena Judgment, in particular, by the passage of legislation by Congress
making a “non-self-executing treaty domestically enforceable” or by
“voluntary compliance by the State of Texas”;
5. Whereas, in its Application, Mexico points out that, since the decision
of the Supreme Court, a Texas court has declined the stay of execution
requested by counsel for Mr. Medellín in order “to allow Congress to pass
legislation implementing the United States’s international legal obligations
to enforce this Court’s Avena Judgment”, and has scheduled Mr. Medellín’s
execution for 5 August 2008; whereas, according to Mexico, “Texas has made
clear that unless restrained, it will go forward with the execution without
providing Mr. Medellín the mandated review and reconsideration”; whereas
Mexico asserts that the actions of the Texas court will thereby irreparably
breach the United States obligations under the Avena Judgment;
6. Whereas it is contended that at least four more Mexican nationals are
also “in imminent danger of having execution dates set by the State of Texas
without any indication that the Mexican nationals facing execution will
receive review and reconsideration”; whereas Mexico states in its
Application that, on 29 November 2007, the Supreme Court of California
“affirmed the conviction and sentence of Martín Mendoza García and
simultaneously rejected his claim that he was entitled to review and
reconsideration consistent with Avena on the basis of the record on direct
appeal”; whereas Mexico also states that, on 31 March 2008, following its
decision in Mr. Medellín’s case, the Supreme Court of the United States
denied petitions for review and reconsideration under the Avena Judgment by
seven other Mexican nationals in whose cases this Court had found violations
of Article 36 of the Vienna Convention, namely Messrs. César Roberto Fierro
Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, Ignacio Gómez, Félix
Rocha Díaz, Virgilio Maldonado and Roberto Moreno Ramos; and whereas Mexico
adds that, on 27 May 2008, the United States Court of Appeals for the Fifth
Circuit declined to grant Ignacio Gómez leave to appeal the dismissal of a
federal petition for post-conviction relief that was premised in part on the
Vienna Convention violation in his case;
7. Whereas Mexico explains that it has sought repeatedly to establish its
rights and to secure appropriate relief for its nationals, both before and
after the decision of the Supreme Court of the United States, but that its
diplomatic démarches have been ineffective; whereas it contends that “all
competent authorities of the United States Government at both the state and
federal levels acknowledge that the United States is under an international
law obligation under Article 94 (1) of the United Nations Charter to comply
with the terms of the [Avena] Judgment”, but have failed to take appropriate
action or have taken affirmative steps in contravention of that obligation;
8. Whereas, in its Application, Mexico refers to Article 60 of the Statute
of the Court which provides that “[i]n the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the
request of any party” and contends, citing the Court’s case law, that the
Court’s jurisdiction to entertain a request for interpretation of its own
judgment is based directly on this provision;
9. Whereas Mexico asserts that it understands the language of paragraph 153
(9) of the Avena Judgment as establishing “an obligation of result” which is
complied with only when review and reconsideration of the convictions and
sentences in question has been completed; whereas, according to Mexico,
while the United States may use “means of its own choosing”, as stated in
paragraph 153 (9), “the obligation to provide review and reconsideration is
not contingent on the success of any one means” and therefore the United
States cannot “rest on a single means chosen”; and whereas Mexico considers
that it flows from this paragraph of the Avena Judgment that the United
States must “prevent the execution of any Mexican national named in the
Judgment unless and until that review and reconsideration is completed and
it is determined that no prejudice resulted from the violation”;
10. Whereas Mexico, in its Application, submits that “anything short of full
compliance with the review and reconsideration ordered by this Court in the
cases of the 48 Mexican nationals named in the Judgment who are still
eligible for review and reconsideration would violate the obligation of
result imposed by paragraph 153 (9)”;
11. Whereas Mexico points out that “[h]aving chosen to issue the President’s
2005 determination directing state courts to comply, the United States to
date has taken no further action . . . despite the confirmation by its own
Supreme Court that other means are available to ensure full compliance”; and
whereas, according to Mexico, it follows that the conduct of the United
States confirms the latter’s understanding that “paragraph 153 (9) imposes
only an obligation of means”;
12. Whereas Mexico thus contends that there is a dispute between the Parties
as to the meaning and scope of the remedial obligation established in
paragraph 153 (9) of the Avena Judgment;
13. Whereas, at the end of its Application, Mexico asks the Court to adjudge
and declare that
“the obligation incumbent upon the United States under paragraph 153 (9) of
the Avena Judgment constitutes an obligation of result as it is clearly
stated in the Judgment by the indication that the United States must provide
‘review and reconsideration of the convictions and sentences’ but leaving it
the ‘means of its own choosing’;
and that, pursuant to the foregoing obligation of result,
1. the United States must take any and all steps necessary to provide the
reparation of review and reconsideration mandated by the Avena Judgment; and
2. the United States must take any and all steps necessary to ensure that no
Mexican national entitled to review and reconsideration under the Avena
Judgment is executed unless and until that review and reconsideration is
completed and it is determined that no prejudice resulted from the
violation”;
14. Whereas, on 5 June 2008, after filing its Application, Mexico, referring
to Article 41 of the Statute of the Court and to Articles 73, 74 and 75 of
the Rules of Court, also submitted a request for the indication of
provisional measures in order “to preserve the rights of Mexico and its
nationals” pending the Court’s judgment in the proceedings on the
interpretation of the Avena Judgment;
15. Whereas, in its request for the indication of provisional measures,
Mexico refers to the basis of jurisdiction of the Court invoked in its
Application, and to the facts set out and the submissions made therein;
16. Whereas Mexico recalls that Mr. José Ernesto Medellín Rojas, a Mexican
national, will certainly face execution on 5 August 2008, and that another
Mexican national, Mr. César Roberto Fierro Reyna, shortly could receive an
execution date on 30 days’ notice, while three other Mexican nationals ⎯
Messrs. Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno
Ramos ⎯ shortly could receive execution dates on 90 days’ notice, in the
State of Texas;
17. Whereas Mexico contends that, under Article 41 of the Statute, the Court
has the undoubted authority to indicate binding provisional measures “to
ensure the status quo pending resolution of the dispute before it”;
18. Whereas, in its request for the indication of provisional measures,
Mexico notes that the Court indicated provisional measures to prevent
executions in three 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; and whereas, according to Mexico, given that the Court indicated
provisional measures in the Avena case concerning a dispute relating to the
interpretation and application of the Vienna Convention, the Court similarly
should act pursuant to Article 41 of the Statute where the dispute concerns
the meaning and the scope of the obligations imposed by its own Judgment in
this case;
19. Whereas Mexico indicates that “the paramount interest in human life is
at stake” and that “that interest would be irreparably harmed if any of the
Mexican nationals whose right to review and reconsideration was determined
in the Avena Judgment were executed without having received that review and
reconsideration”; and whereas Mexico states in the following terms the
grounds for its request and the possible consequences if it is denied:
“Unless the Court indicates provisional measures pending this Court’s
disposition of Mexico’s Request for Interpretation, Mr. Medellín certainly
will be executed, and Messrs. Fierro, Leal García, Moreno Ramos, and Ramírez
Cárdenas will be at substantial risk of execution, before the Court has had
the opportunity to consider the dispute before it. In that event, Mexico
would forever be deprived of the opportunity to vindicate its rights and
those of the nationals concerned”;
20. Whereas Mexico claims that, as far as the United States is concerned,
any delay in an execution would not be prejudicial to the rights of the
United States as all of the above-mentioned Mexican nationals would remain
incarcerated and subject to execution once their right to review and
reconsideration has been vindicated;
21. Whereas Mexico adds in its request that “[t]here also can be no question
about the urgency of the need for provisional measures”;
22. Whereas it concludes that provisional measures are justified in order
“both to protect Mexico’s paramount interest in the life of its nationals
and to ensure the Court’s ability to order the relief Mexico seeks”;
23. Whereas Mexico asks that, pending judgment on its Request for
interpretation, the Court indicate:
“(a) that the Government of the United States take all measures necessary to
ensure that José Ernesto Medellín, César Roberto Fierro Reyna, Rubén Ramírez
Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed
pending the conclusion of the proceedings instituted [on 5 June 2008];
(b) that the Government of the United States inform the Court of all
measures taken in implementation of subparagraph (a); and
(c) that the Government of the United States ensure that no action is taken
that might prejudice the rights of Mexico or its nationals with respect to
any interpretation this Court may render with respect to paragraph 153 (9)
of its Avena Judgment”;
and whereas Mexico further asks the Court to treat its request for the
indication of provisional measures as a matter of the greatest urgency “in
view of the extreme gravity and immediacy of the threat that authorities in
the United States will execute a Mexican national in violation of
obligations the United States owes to Mexico”;
24. Whereas on 5 June 2008, 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 signed 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;
25. Whereas, on 5 June 2008, the Registrar also informed the Parties that
the Court, in accordance with Article 74, paragraph 3, of the Rules of
Court, had fixed 19 June 2008 as the date for the opening of the oral
proceedings on the request for the indication of provisional measures;
26. Whereas, by a letter of 12 June 2008, received in the Registry on the
same day, the United States Government informed the Court of the appointment
of an Agent and a Co-Agent for the case;
27. Whereas, at the public hearings held on 19 and 20 June 2008 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:
On behalf of Mexico: by H.E. Mr. Juan Manuel Gómez-Robledo,
H.E. Mr. Joel Antonio Hernández García,
Ms Sandra Babcock,
Ms Catherine Amirfar,
Mr. Donald Francis Donovan,
H.E. Mr. Jorge Lomónaco Tonda;
On behalf of the United States: by Mr. John B. Bellinger, III,
Mr. Stephen Mathias,
Mr. James H. Thessin,
Mr. Michael J. Mattler,
Mr. Vaughan Lowe;
and whereas at the hearings a question was put by a Member of the Court to
the United States, to which an oral reply was given;
***
28. 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 affirmed that the requirements for the indication
by the Court of the provisional measures requested had been met in the
present case;
29. Whereas Mexico stated that, while it recognized and welcomed the efforts
undertaken by the Government of the United States to enforce the Avena
Judgment in state courts, those efforts, in its view, had fallen short of
what was required by the Judgment; whereas Mexico reiterated that “the
Governments of Mexico and the United States [had] divergent views as to the
meaning and scope of paragraph 153 (9) of the Avena Judgment, and that a
clarification by [the] Court [was] necessary”; and whereas it added that its
request for the indication of provisional measures was limited to what was
strictly necessary to preserve Mexico’s rights pending the Court’s final
judgment on its Request for interpretation;
30. Whereas Mexico insisted that there was an overwhelming risk that
authorities of the United States imminently would act to execute Mexican
nationals in violation of obligations incumbent upon the United States under
the Avena Judgment; whereas it specifies in particular that, unless
provisional measures were indicated by the Court, one of its nationals, Mr.
José Ernesto Medellín Rojas, would be executed on 5 August 2008 and that
four other Mexican nationals, Messrs. César Roberto Fierro Reyna, Rubén
Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos could also
be at risk of execution before the Court ruled on the Request for
interpretation; and whereas Mexico accordingly stressed that the condition
of urgency required for the indication of provisional measures was
satisfied;
31. Whereas at the end of the first round of oral observations Mexico thus
requested the Court, “as a matter of utmost urgency”, to issue an order
indicating:
“(a) that the United States, acting through all its competent organs and all
its constituent subdivisions, including all branches of government and any
official, state or federal, exercizing government authority, take all
measures necessary to ensure that José Ernesto Medellín, César Roberto
Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto
Moreno Ramos are not executed pending the conclusion of the proceedings
instituted by Mexico on 5 June 2008; and
(b) that the Government of the United States inform the Court of all
measures taken in implementation of subparagraph (a)”;
32. Whereas, in its first round of oral observations, the United States
asserted that Mexico had failed to demonstrate that there existed between
the United States and Mexico any dispute as to “the meaning or scope of the
Court’s decision in Avena”, as required by Article 60 of the Statute,
because the United States “entirely agree[d]” with Mexico’s position that
the Avena Judgment imposed an international legal obligation of “result” and
not merely of “means”; whereas, according to the United States, the Court
was being “requested by Mexico to engage in what [was] in substance the
enforcement of its earlier judgments and the supervision of compliance with
them”; whereas the United States observed that, given the fact that it had
withdrawn from the Optional Protocol to the Vienna Convention on Consular
Relations on 7 March 2005, a proceeding on interpretation was “potentially
the only jurisdictional basis” for Mexico to seise the Court in matters
involving the violation of that Convention; whereas the United States argued
that, in the “absence of a dispute, the Court lack[ed] prima facie
jurisdiction to proceed” and thus provisional measures were “inappropriate
in this case”; and whereas the United States further urged that, under its
“inherent powers”, the Court should dismiss Mexico’s Application on the
basis that it constituted “an abuse of process”, being directed to the
implementation of the Avena Judgment, which lay beyond the Court’s judicial
function;
33. Whereas the United States explained that it has faced considerable
“domestic law constraints” in achieving the implementation of the Avena
Judgment, due to its “federal structure, in which the constituent states . .
. retain[ed] a substantial degree of autonomy, particularly in matters
relating to criminal justice”, combined with its “constitutional structure
of divided executive, legislative, and judicial functions of government at
the federal level”; whereas the United States contended that, despite these
constraints, since the Avena Judgment, it has undertaken a series of actions
to achieve the implementation of the Court’s Judgment;
34. Whereas the United States noted in particular that the President of the
United States issued a Memorandum in early 2005 to the Attorney General of
the United States (see paragraph 3 above) directing that the state courts
give effect to the Avena Judgment; whereas, according to the United States,
under the terms of the Memorandum, in order to provide the Mexican nationals
named in the Avena Judgment with review and reconsideration in state courts
of their claims under the Vienna Convention, “state law procedural default
rules were to be deemed inapplicable”; whereas the United States added that
“in order to publicize the President’s decision, the Attorney General of the
United States sent a letter to each of the relevant state Attorneys General
notifying them of the President’s actions”; whereas the United States
pointed out that the United States Federal Department of Justice filed an
amicus brief and appeared before the Texas Court of Criminal Appeals to
support Mr. Medellín’s argument that the President’s Memorandum entitled him
to the review and reconsideration required by the Avena Judgment; whereas
the United States stated that “despite these unprecedented efforts, the
Texas Court of Criminal Appeals still declined to treat the President’s
determination as binding, and it refused to provide Mr. Medellín the review
and reconsideration required by Avena”, concluding that the President “had
acted unconstitutionally in seeking to pre-empt Texas state law, even in
order to comply with an international law obligation”; whereas, in addition,
the United States referred to three filings it has made in support of the
Presidential Memorandum, requiring review and reconsideration for “the Avena
defendants” in the United States Supreme Court;
35. Whereas the United States indicated that the Supreme Court, in its
recent decision, had “rejected the United States arguments and refused to
treat the President’s determination as binding on state courts”, concluding
that “the President lacked the inherent authority under [the United States]
Constitution” and that “Congress had not given him the requisite additional
authority to order states to comply with the decision of [the International]
Court [of Justice]”; whereas the United States asserted that the Supreme
Court reaffirmed the obligation of the United States under international law
to comply with the Avena decision; whereas the United States noted however
that, in focussing on the status of that obligation in United States
domestic law, i.e. “whether the Avena decision was automatically enforceable
in United States courts, or whether the President had the authority to
direct state courts to comply with the decision”, the Supreme Court
concluded that the decisions of the International Court of Justice were not
automatically and directly enforceable in United States courts; whereas,
according to the United States, the Supreme Court “effectively ruled that
the President’s actions to give effect to Avena were unconstitutional under
United States domestic law” (emphasis in the original);
36. Whereas the United States claimed that, having “fallen short” in its
initial efforts to ensure implementation of the Court’s Judgment in the
Avena case, “the United States [was] now urgently considering its
alternatives”; whereas the United States submitted that, to that end, a few
days before the opening of the hearings,
“Secretary of State Rice and Attorney General Mukasey [had] jointly sent a
letter to the Governor of Texas . . . calling attention to the United States
continuing international law obligation and formally asking him to work with
the federal government to provide the named Avena defendants the review and
reconsideration required by the Avena decision”;
and whereas the United States maintained that, since the Avena Judgment, in
connection with efforts by the United States federal government to persuade
states to give effect to that Judgment, several Mexican nationals named
therein had already received review and reconsideration of their convictions
and sentences;
37. Whereas the United States argued that, contrary to Mexico’s suggestion,
the United States did not believe that it need make no further effort to
implement this Court’s Avena Judgment, and asserted that it would “continue
to work to give that Judgment full effect, including in the case of Mr.
Medellín”;
38. Whereas the United States requested that the Court reject the request of
Mexico for the indication of provisional measures of protection and not
indicate any such measures, and that the Court dismiss Mexico’s Application
for interpretation on grounds of manifest lack of jurisdiction;
39. Whereas in its second round of oral observations Mexico stated that, by
scheduling Mr. Medellín’s execution before being afforded the remedy
provided for in the Avena Judgment, the State of Texas, a constituent part
and a competent authority of the United States, “has unmistakably
communicated its disagreement with Mexico’s interpretation of the Judgment”
as establishing an international legal obligation of result and has thereby
confirmed “the existence of that dispute between Mexico and the competent
organs and authorities in the state of Texas” (emphasis in the original);
whereas Mexico added that nor “[was] there any basis for the Court to
conclude at this point that there [was] no difference in view at the federal
level” and referred in that connection to the absence of any indication that
“the federal legislature [understood] itself bound by Avena to ensure that
the nationals covered by the Judgment receive review and reconsideration”;
40. Whereas at the end of its second round of oral observations Mexico made
the following request:
“(a) that the United States, acting through all its competent organs and all
its constituent subdivisions, including all branches of government and any
official, state or federal, exercising government authority, take all
measures necessary to ensure that José Ernesto Medellín, César Roberto
Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto
Moreno Ramos are not executed pending the conclusion of the proceedings
instituted by Mexico on 5 June 2008, unless and until the five Mexican
nationals have received review and reconsideration consistent with
paragraphs 138 through 141 of this Court’s Avena Judgment; and
(b) that the Government of the United States inform the Court of all
measures taken in implementation of subparagraph (a)”;
41. Whereas, in its second round of oral observations, the United States
stressed the fact that the United States agreed with the interpretation of
paragraph 153 (9) requested by Mexico, “in particular that the Avena
Judgment impose[d] an ‘obligation of result’ on the United States” and that
accordingly, there was no dispute “as to the meaning or scope” of that
Judgment; whereas the United States again expressed its view that “Mexico’s
real purpose in these proceedings [was] enforcement, rather than
interpretation, of the Avena Judgment”; whereas the United States reiterated
that, “since no dispute exist[ed] on the issues on which Mexico [sought]
interpretation, there [were] no rights at issue that could be the subject of
a dispute”; whereas the United States asserted that, as Mexico had not
identified a dispute, Article 60 of the Statute did not provide a
jurisdictional basis for its Request for interpretation and that, “in the
absence of such a jurisdictional basis, the Court should not proceed to
consider the other factors identified by Mexico, and should instead dismiss
its request for provisional measures”; whereas, the United States reiterated
that, “even putting questions of prima facie jurisdiction aside, Mexico[’s
request] [did] not meet the other criteria for the indication of provisional
measures” as there were no rights in dispute;
42. Whereas the United States argued that its actions “[were] consistent
with its understanding that the Avena Judgment impose[d] an obligation of
result”; whereas it noted that under the United States Constitution, it was
the executive branch, under the leadership of the President and the
Secretary of State that spoke authoritatively for the United States
internationally; whereas the United States explained that, although the acts
of its political subdivisions could incur the international responsibility
of the United States, that did not mean that these actions were those of the
United States for purposes of determining whether there was a dispute with
another State; whereas, according to the United States, it cannot be argued
that “particular alleged acts or omissions”, such as an omission by the
United States Congress to undertake legislation to implement the Avena
Judgment or an omission by the State of Texas to implement such legislation,
“reflect[ed] a legal dispute as to the interpretation of the Avena Judgment”
(emphasis in the original); whereas the United States expressed its regret
that its full efforts thus far had not arrived at a full resolution of the
matter and stated that it would continue to work with Mexico to provide
review and reconsideration to the named Avena defendants;
43. Whereas at the close of its second round of oral observations, the
United States reiterated the request made in the first round (see paragraph
38 above);
***
44. Whereas the Court’s jurisdiction on the basis of Article 60 of the
Statute is not preconditioned by the existence of any other basis of
jurisdiction as between the parties to the original case; and whereas it
follows that, even if the basis of jurisdiction in the original case lapses,
the Court, nevertheless, by virtue of Article 60 of the Statute, may
entertain a request for interpretation;
45. Whereas in the case of a request for the indication of provisional
measures made in the context of a request for interpretation under Article
60 of the Statute, the Court has to consider whether the conditions laid
down by that Article for the Court to entertain a request for interpretation
appear to be satisfied; whereas Article 60 provides that: “The judgment is
final and without appeal. In the event of dispute as to the meaning or scope
of the judgment, the Court shall construe it upon the request of any party”;
and whereas this provision is supplemented by Article 98 of the Rules of
Court, paragraph 1 of which reads: “In the event of dispute as to the
meaning or scope of a judgment any party may make a request for its
interpretation . . .”;
46. Whereas, therefore, by virtue of the second sentence of Article 60, the
Court may entertain a request for interpretation of any judgment rendered by
it provided that there is a “dispute as to the meaning or scope of [the
said] judgment”;
47. Whereas Mexico requests the Court to interpret paragraph 153 (9) of the
operative part of the Judgment delivered by the Court on 31 March 2004 in
the case concerning Avena and Other Mexican Nationals (Mexico v. United
States of America); whereas a request for interpretation must relate to a
dispute between the parties relating to the meaning or scope of the
operative part of the judgment and cannot concern the reasons for the
judgment except in so far as these are inseparable from the operative part
(Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No.
11, 1927, P.C.I.J., Series A, No. 13, p. 11; Request for Interpretation of
the Judgment of 11 June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 35,
para. 10);
48. Whereas Mexico asks the Court to confirm its understanding that the
language in that provision of the Avena Judgment establishes an obligation
of result that obliges the United States, including all its component organs
at all levels, to provide the requisite review and reconsideration
irrespective of any domestic law impediment; whereas Mexico further submits
that the
“obligation imposed by the Avena Judgment requires the United States to
prevent the execution of any Mexican national named in the Judgment unless
and until that review and reconsideration has been completed and it has been
determined whether any prejudice resulted from the Vienna Convention
violations found by this Court” (see also paragraph 9 above);
whereas, in Mexico’s view, the fact that “[n]either the Texas executive, nor
the Texas legislature, nor the federal executive, nor the federal
legislature has taken any legal steps at this point that would stop th[e]
execution [of Mr. Medellín] from going forward . . . reflects a dispute over
the meaning and scope of [the] Avena” Judgment;
49. Whereas, according to Mexico, “by its actions thus far, the United
States understands the Judgment to constitute merely an obligation of means,
not an obligation of result” despite the formal statements by the United
States before the Court to the contrary; whereas Mexico contends that
notwithstanding the Memorandum issued by President of the United States in
2005, whereby he directed state courts to provide review and reconsideration
consistent with the Avena Judgment, “petitions by Mexican nationals for the
review and reconsideration mandated in their cases have repeatedly been
denied by domestic courts”; whereas Mexico claims that the decision by the
Supreme Court of the United States in Mr. Medellín’s case on 25 March 2008
has rendered the President’s Memorandum without force in state courts; and
whereas
“[a]part from having issued the President’s 2005 Memorandum, a means that
fell short of achieving its intended result, the United States to date has
not taken the steps necessary to prevent the executions of Mexican nationals
until the obligation of review and reconsideration is met” (emphasis in the
original);
50. Whereas the United States contends that Mexico’s understanding of
paragraph 153 (9) of the Avena Judgment as an “obligation of result”, i.e.
that the United States is subject to a binding obligation to provide review
and reconsideration of the convictions and sentences of the Mexican
nationals named in the Judgment, “is precisely the interpretation that the
United States holds concerning the paragraph in question” (emphasis in the
original); and whereas, while admitting that, because of the structure of
its Government and its domestic law, the United States faces substantial
obstacles in implementing its obligation under the Avena Judgment, the
United States confirmed that “it has clearly accepted that the obligation to
provide review and reconsideration is an obligation of result and it has
sought to achieve that result”;
51. Whereas, in the view of the United States, in the absence of a dispute
with respect to the meaning and scope of paragraph 153 (9) of the Avena
Judgment, Mexico’s “claim is not capable of falling within the provisions of
Article 60” and thus it would be “inappropriate for the Court to grant
relief, including provisional measures, in respect to that claim”; whereas
the United States contends that the Court lacks “jurisdiction ratione
materiae” to entertain Mexico’s Application and accordingly lacks “the prima
facie jurisdiction required for the indication of provisional measures”;
52. Whereas the United States submits that, in light of the circumstances,
the Court “should give serious consideration to dismissing Mexico’s Request
for interpretation in its entirety at this stage of the proceedings”;
53. Whereas the French and English versions of Article 60 of the Statute are
not in total harmony; whereas the French text uses the term “contestation”
while the English text refers to a “dispute”; whereas the term
“contestation” in the French text has a wider meaning than the term used in
the English text; whereas Article 60 of the Statute of the International
Court of Justice is identical to Article 60 of the Statute of the Permanent
Court of International Justice; whereas the drafters of the Statute of the
Permanent Court of International Justice chose to use in the French text of
Article 60 a term (“contestation”) which is different from the term
(“différend”) used notably in Article 36, paragraph 2, and in Article 38 of
the Statute; whereas, although in their ordinary meaning, both terms in a
general sense denote opposing views, the term “contestation” is wider in
scope than the term “différend” and does not require the same degree of
opposition; whereas, compared to the term “différend”, the concept
underlying the term “contestation” is more flexible in its application to a
particular situation; and whereas a dispute (“contestation” in the French
text) under Article 60 of the Statute, understood as a difference of opinion
between the parties as to the meaning and scope of a judgment rendered by
the Court, therefore does not need to satisfy the same criteria as would a
dispute (“différend” in the French text) as referred to in Article 36,
paragraph 2, of the Statute; whereas, in the present circumstances, a
meaning shall be given that best reconciles the French and English texts of
Article 60 of its Statute, bearing in mind its object; whereas this is so
notwithstanding that the English texts of Article 36, paragraph 2, and
Articles 38 and 60 of the Statute all employ the same word, “dispute”; and
whereas the term “dispute” in English also may have a more flexible meaning
than that generally accorded to it in Article 36, paragraph 2, of the
Statute;
54. Whereas the question of the meaning of the term “dispute”
(“contestation”) as employed in Article 60 of the Statute has been addressed
in the jurisprudence of the Court’s predecessor; whereas “the manifestation
of the existence of the dispute in a specific manner, as for instance by
diplomatic negotiations, is not required” for the purposes of Article 60,
nor is it required that “the dispute should have manifested itself in a
formal way”; whereas recourse could be had to the Permanent Court as soon as
the interested States had in fact shown themselves as holding opposing views
in regard to the meaning or scope of a judgment of the Court (Interpretation
of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927,
P.C.I.J., Series A, No. 13, pp. 10-11); and whereas this reading of Article
60 was confirmed by the present Court in the case concerning 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, I.C.J. Reports 1985, pp. 217-218,
para. 46);
55. Whereas the Court needs now to determine whether there appears to be a
dispute between the Parties within the meaning of Article 60 of the Statute;
whereas, according to the United States, its executive branch, which is the
only authority entitled to represent the United States internationally,
understands paragraph 153 (9) of the Avena Judgment as an obligation of
result; whereas, in Mexico’s view, the fact that other federal and state
authorities have not taken any steps to prevent the execution of Mexican
nationals before they have received review and reconsideration of their
convictions and sentences reflects a dispute over the meaning and scope of
the Avena Judgment; whereas, while it seems both Parties regard paragraph
153 (9) of the Avena Judgment as an international obligation of result, the
Parties nonetheless apparently hold different views as to the meaning and
scope of that obligation of result, namely, whether that understanding is
shared by all United States federal and state authorities and whether that
obligation falls upon those authorities;
56. Whereas, in light of the positions taken by the Parties, there appears
to be a difference of opinion between them as to the meaning and scope of
the Court’s finding in paragraph 153 (9) of the operative part of the
Judgment and thus recourse could be had to the Court under Article 60 of the
Statute;
57. Whereas, in view of the foregoing, it appears that the Court may, under
Article 60 of the Statute, deal with the Request for interpretation; whereas
it follows that the submission of the United States, that the Application of
Mexico be dismissed in limine “on grounds of manifest lack of jurisdiction”,
can not be upheld; and whereas it follows also that the Court may address
the present request for the indication of provisional measures;
**
58. 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 and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996,
I.C.J. Reports 1996 (I), p. 22, para. 35); whereas a link must therefore be
established between the alleged rights the protection of which is the
subject of the provisional measures being sought, and the subject of the
principal request submitted to the Court;
59. Whereas Mexico contends that its request for the indication of
provisional measures is intended to preserve the rights that Mexico asserts
in its Request for interpretation of paragraph 153 (9) of the Avena
Judgment; whereas, according to Mexico, the indication of provisional
measures would be required to preserve the said rights during the pendency
of the proceedings, as “in executing Mr. Medellín or others, the United
States will forever deprive these nationals of the correct interpretation of
the Judgment” (emphasis in the original); whereas, in Mexico’s view,
paragraph 153 (9) establishes an obligation of result incumbent upon the
United States, namely it “must not execute any Mexican national named in the
Judgment unless and until review and reconsideration is completed and either
no prejudice as a result of the treaty violation is found or any prejudice
is remedied”;
60. Whereas Mexico argues that, given the dispute between the Parties as to
the meaning and scope of paragraph 153 (9) of the Avena Judgment, “there can
be no doubt that the provisional relief requested arises from the rights
that Mexico seeks to protect and preserve until this Court clarifies the
obligation imposed by [that] paragraph”;
61. Whereas the United States submits that Mexico’s request for the
indication of provisional measures aims to prohibit the United States from
carrying out sentences with regard to Mexican nationals named therein prior
to the conclusion of the Court’s proceedings on Mexico’s Request for
interpretation; whereas the United States contends that, in its Application,
Mexico asks the Court to interpret the Avena Judgment to mean that the
United States must not carry out sentences “unless the individual affected
has received review and reconsideration and it is determined that no
prejudice resulted from the violation of the Vienna Convention”, rather than
an absolute prohibition on the United States carrying out sentences in
regard to each of the individuals mentioned in Avena; whereas the United
States claims that, by focusing in the request for the indication of
provisional measures on the carrying out of the sentence and not on its
review and reconsideration, Mexico seeks to protect rights that are not
asserted in its Application for interpretation;
62. Whereas the United States asserts that, as is clear from the Court’s
case law, “any provisional measures indicated must be designed to preserve
[the] rights” which are the subject of the principal request submitted to
the Court; and whereas it contends that the provisional measures requested
by Mexico do not satisfy the Court’s test because they go beyond the subject
of the proceedings before the Court on the Request for interpretation;
63. Whereas, in proceedings on interpretation, the Court is called upon to
clarify the meaning and the scope of what the Court decided with binding
force in a judgment (Request for Interpretation of the Judgment of 20
November 1950 in the Asylum Case (Colombia v. Peru),
Judgment, I.C.J. Reports 1950, p. 402; 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, I.C.J. Reports 1985, p. 223, para. 56); whereas
Mexico seeks clarification of the meaning and the scope of paragraph 153 (9)
of the operative part of the 2004 Judgment in the Avena case, whereby the
Court found that the United States is under an obligation to provide, by
means of its own choosing, review and reconsideration of the convictions and
sentences of the Mexican nationals, taking into account both the violation
of the rights set forth in Article 36 of the Vienna Convention and
paragraphs 138 to 141 of the Judgment; whereas it is the interpretation of
the meaning and scope of that obligation, and hence of the rights which
Mexico and its nationals have on the basis of paragraph 153 (9) that
constitutes the subject of the present proceedings before the Court on the
Request for interpretation; whereas Mexico filed a request for the
indication of provisional measures in order to protect these rights pending
the Court’s final decision;
64. Whereas, therefore, the rights which Mexico seeks to protect by its
request for the indication of provisional measures (see paragraph 40 above)
have a sufficient connection with the Request for interpretation;
**
65. Whereas the power of the Court to indicate provisional measures under
Article 41 of its Statute “presupposes that irreparable prejudice shall not
be caused to rights which are the subject of a dispute in judicial
proceedings” (LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 22);
66. Whereas the power of the Court to indicate provisional measures will be
exercised only if there is urgency in the sense that action prejudicial to
the rights of either party is likely to be taken before the Court has given
its final decision (see, for example, Passage through the Great Belt
(Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J.
Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in France
(Republic of the Congo v. France), Provisional Measure, Order of 17 June
2003, I.C.J. Reports 2003, p. 107, para. 22; Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007,
I.C.J. Reports 2007, p. 11, para. 32);
67. Whereas Mexico’s principal request is that the Court should order that
the United States
“take all measures necessary to ensure that José Ernesto Medellín, César
Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and
Roberto Moreno Ramos are not executed pending the conclusion of the
proceedings [concerning the Request for the interpretation of paragraph 153
(9) of the Avena Judgment,] unless and until [these] five Mexican nationals
have received review and reconsideration consistent with paragraphs 138 to
141 of [that] Judgment”;
68. Whereas Mexico asserts that it faces a real danger of irreparable
prejudice and that the circumstances are sufficiently urgent as to justify
the issuance of provisional measures; whereas Mexico, relying on the Court’s
previous case law, states that irreparable prejudice to the rights of Mexico
would be caused by the execution of any persons named in the Avena Judgment
pending this Court’s resolution of the present Request for interpretation;
whereas, according to Mexico,
“[t]he execution of a Mexican national subject to the Avena Judgment, and
hence entitled to review and reconsideration before the Court has had the
opportunity to resolve the present Request for interpretation, would forever
deprive Mexico of the opportunity to vindicate its rights and those of its
nationals”;
69. Whereas Mexico claims that there indisputably is urgency in the present
circumstances given that Mr. Medellín’s execution is scheduled for 5 August
2008, another Mexican national named in the Avena Judgment shortly could
receive an execution date on 30 days’ notice and three more shortly could
receive execution dates on 90 days’ notice; and whereas Mexico states that
it “asks the Court to indicate provisional measures only in respect of those
of its nationals who have exhausted all available remedies and face an
imminent threat of execution” and reserves its right to “return to this
Court for protection for additional individuals if changing circumstances
make that necessary”;
70. Whereas Mexico requests the Court to
“specify that the obligation to take all steps necessary to ensure that the
execution not go forward applies to all competent organs of the United
States and all its constituent subdivisions, including all branches of
government and any official, state or federal, exercizing government
authority” (emphasis in the original)
and to order that the United States inform the Court of the measures taken;
71. Whereas the United States argues that, as in the present case there are
no rights in dispute, “none of the requirements for provisional measures are
met” (emphasis in the original);
72. Whereas the execution of a national, the meaning and scope of whose
rights are in question, before the Court delivers its judgment on the
Request for interpretation “would render it impossible for the Court to
order the relief that [his national State] seeks and thus cause irreparable
harm to the rights it claims” (Vienna Convention on Consular Relations
(Paraguay v. United States of America), Provisional Measures, Order of 9
April 1998, I.C.J. Reports 1998, p. 257, para. 37);
73. Whereas it is apparent from the information before the Court in this
case that Mr. José Ernesto Medellín Rojas, a Mexican national, will face
execution on 5 August 2008 and other Mexican nationals, Messrs. César
Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and
Roberto Moreno Ramos, are at risk of execution in the coming months; whereas
their execution would cause irreparable prejudice to any rights, the
interpretation of the meaning and scope of which is in question; and whereas
it could be that the said Mexican nationals will be executed before this
Court has delivered its judgment on the Request for interpretation and
therefore there undoubtedly is urgency;
74. Whereas the Court accordingly concludes that the circumstances require
that it indicate provisional measures to preserve the rights of Mexico, as
Article 41 of its Statute provides;
**
75. Whereas the Court is fully aware that the federal Government of the
United States has been taking many diverse and insistent measures in order
to fulfil the international obligations of the United States under the Avena
Judgment;
76. Whereas the Court notes that the United States has recognized that, were
any of the Mexican nationals named in the request for the indication of
provisional measures to be executed without the necessary review and
reconsideration required under the Avena Judgment, that would constitute a
violation of United States obligations under international law; whereas, in
particular, the Agent of the United States declared before the Court that
“[t]o carry out Mr. Medellín’s sentence without affording him the necessary
review and reconsideration obviously would be inconsistent with the Avena
Judgment”;
77. Whereas the Court further notes that the United States has recognized
that “it is responsible under international law for the actions of its
political subdivisions”, including “federal, state, and local officials”,
and that its own international responsibility would be engaged if, as a
result of acts or omissions by any of those political subdivisions, the
United States was unable to respect its international obligations under the
Avena Judgment; whereas, in particular, the Agent of the United States
acknowledged before the Court that “the United States would be responsible,
clearly, under the principle of State responsibility for the internationally
wrongful actions of [state] officials”;
**
78. Whereas the Court regards it as in the interest of both Parties that any
difference of opinion as to the interpretation of the meaning and scope of
their rights and obligations under paragraph 153 (9) of the Avena Judgment
be resolved as early as possible; whereas it is therefore appropriate that
the Court ensure that a judgment on the Request for interpretation be
reached with all possible expedition;
79. Whereas the decision given in the present proceedings on the request for
the indication of provisional measures in no way prejudges any question that
the Court may have to deal with relating to the Request for interpretation;
***
80. For these reasons,
THE COURT,
I. By seven votes to five,
Finds that the submission by the United States of America seeking the
dismissal of the Application filed by the United Mexican States can not be
upheld;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Koroma, Abraham, Sepúlveda-Amor, Bennouna;
AGAINST: Judges Buergenthal, Owada, Tomka, Keith, Skotnikov;
II. Indicates the following provisional measures:
(a) By seven votes to five,
The United States of America shall take all measures necessary to ensure
that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén
Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not
executed pending judgment on the Request for interpretation submitted by the
United Mexican States, unless and until these five Mexican nationals receive
review and reconsideration consistent with paragraphs 138 to 141 of the
Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and
Other Mexican Nationals (Mexico v. United States of America);
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Koroma, Abraham, Sepúlveda-Amor, Bennouna;
AGAINST: Judges Buergenthal, Owada, Tomka, Keith, Skotnikov;
(b) By eleven votes to one,
The Government of the United States of America shall inform the Court of the
measures taken in implementation of this Order;
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Koroma, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov;
AGAINST: Judge Buergenthal;
III. By eleven votes to one,
Decides that, until the Court has rendered its judgment on the Request for
interpretation, it shall remain seised of the matters which form the subject
of this Order.
IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva,
Koroma, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov;
AGAINST: Judge Buergenthal.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this sixteenth day of July, two thousand and eight,
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.
(Signed) Rosalyn HIGGINS,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge BUERGENTHAL appends a dissenting opinion to the Order of the Court;
Judges OWADA, TOMKA and KEITH append a joint dissenting opinion to the Order
of the Court; Judge SKOTNIKOV appends a dissenting opinion to the Order of
the Court.
(Initialled) R. H.
(Initialled) Ph. C.
DISSENTING OPINION OF JUDGE BUERGENTHAL
1. I agreed with and voted in favour of the Court’s Judgment in the Avena
case (Avena and Other Mexican Nationals (Mexico v. United States of
America). In that case, the Court held that the United States had violated
the Vienna Convention on Consular Relations with regard to various Mexican
nationals incarcerated in the United States. I found that judgment sound as
a matter of law and policy, and I continue to support it without any
reservations. The same is not true of the present Order. Although I consider
that the United States has an obligation to ensure, in accordance with this
Court’s determination in Avena, that the Mexican nationals mentioned in that
case not be executed without being accorded the review and reconsideration
of their convictions and sentences, I believe that the Court lacks the
jurisdiction necessary to adopt the Order it issues today. At the same time,
of course, I would expect the United States to comply fully with its
obligations under the Avena Judgment.
2. In the Avena case, the Court ordered the United States
“to provide, by means of its own choosing, review and reconsideration of the
convictions and sentences of the Mexican nationals referred to in [the
Judgment], by taking account both of the violation of the rights set forth
in Article 36 of the Convention and paragraphs 138 to 141 of this Judgment”
(Avena and Other Mexican Nationals (Mexico v. United States of America),
I.C.J. Reports 2004, p. 72, para. 153(9)).
3. Today the Court orders that:
“The United States of America shall take all measures necessary to ensure
that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén
Ramíres Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not
executed pending judgment on the Request for interpretation submitted by the
United Mexican States, unless and until these five Mexican nationals receive
review and reconsideration consistent with paragraphs 138 to 141 of the
Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and
Other Mexican Nationals (Mexico v. United States of America)” (Order, para.
80 II (a)).
4. Of course, I agree that the above-mentioned individuals must not be
executed unless they are granted the review and reconsideration of their
convictions and sentences to which they are entitled under the Avena
Judgment. But that precisely is what the Avena Judgment ordered, in addition
to making it clear that the obligation set out in that Judgment extended not
only to the five individuals identified in today’s Order, but to all Mexican
nationals listed in the Avena Judgment.
5. The soundness or continuing binding character of the Avena Judgment is
not in issue in the present case. What is in issue here is the right of
Mexico to the Order granting provisional measures and the power of the Court
to issue that Order. I believe that the Court lacks that power and that, by
adopting it on the basis of Mexico’s unfounded jurisdictional allegations,
the Court establishes a dangerous precedent as far as concerns its
jurisdiction under Article 60.
6. In the Avena case, we held that the United States had violated the Vienna
Convention on Consular Relations with regard to the 51 Mexican individuals
on death row in various states of the United States. We also held that the
United States was under an obligation to provide these individuals with
“review and reconsideration” of their convictions and sentences in the
appropriate courts of the United States. It follows from the holding in the
Avena case, and that is not disputed by either Party to the present case,
that the United States would be in breach of its international obligations
as set forth in the Avena case, if any one of the named Mexicans, including
Mr. Medellín, were to be executed without having been provided with the
review and reconsideration mandated by this Court in Avena. That obligation
is unreservedly acknowledged by the United States, which has demonstrated
before the Court that it is fully committed to and actively engaged in
seeking to bring about the enforcement of the Avena Judgment.
7. The principal issue in the present case is whether Mexico, by invoking
Article 60 of the Statute of the Court, has provided the Court with the
requisite jurisdiction to issue the requested provisional measures. That
jurisdiction depends upon the admissibility of Mexico’s Request for the
interpretation of the Avena Judgment. This is so because the regrettable
withdrawal of the United States from the Protocol to the Vienna Convention
for Consular Relations has deprived the Court in the present case of the
jurisdiction it had when it decided the Avena case. But since Article 60
provides the Court with an independent or special jurisdictional basis for
the interpretation of its judgments, Mexico relies on that jurisdiction to
sustain its request for provisional measures. This approach can, however
succeed only if Mexico shows that its Request for the interpretation of the
Avena Judgment under Article 60 is not manifestly unfounded. But if the
Request is manifestly unfounded, it would have to be dismissed, leaving the
Court without jurisdiction to deal with Mexico’s request for provisional
measures.
8. Article 60 of the Statute of the Court reads as follows:
“The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the
request of any party.”
9. Given the language of Article 60, Mexico must show that there is a
dispute between it and the United States regarding “the meaning or scope” of
the Avena Judgment. To this end Mexico seeks an interpretation of paragraph
153 (9) of the Avena Judgment by claiming that such a dispute exists
regarding the meaning or scope of that paragraph (for the text, see para. 2,
above). Mexico considers that the paragraph establishes an obligation of
result, whereas it asserts that the United States views the obligation as
one of means only.
10. The United States denies that a dispute within the meaning of Article 60
exists in the present case. It agrees with Mexico that the Avena Judgment
imposes an obligations of result. It claims that it recognizes that the
United States has an obligation under Avena to ensure that the individuals
covered by the Avena Judgment are provided “review and reconsideration” of
their convictions and sentences. In support of this assertion, the United
States points to the President’s Proclamation, the position the United
States took before the United States Supreme Court in the Medellín case, the
decision of the Supreme Court itself, the letter written by the Secretary of
State and Attorney General to the Governor of Texas, the efforts of the
Executive Branch before the Texas courts, and the correspondence between the
United States and Mexico, which were all steps taken to bring about full
compliance with the Avena Judgment.
11. At this preliminary stage of the proceedings, it is sufficient for
Mexico to establish that its claim regarding the existence of the dispute
relating to the meaning or scope of paragraph 153 (9) of the Avena Judgment
is not manifestly unfounded. This means that Mexico must provide at least
some minimal evidence to support its contention That it has failed to do.
12. While Mexico does not deny that the steps listed in paragraph 10 above
were taken by the United States, it points to the pending execution order
issued by a Texas judge in the case of Mr. Medellín and to the earlier Texas
court decisions relating to Medellín, which refused to give effect to the
Avena Judgment. Mexico also makes reference to similar positions taken by
Texas courts in other cases involving the Mexicans named in the Avena
Judgment. According to Mexico, the position of the Texas courts is imputable
to the United States and indicates that these courts, by refusing to give
effect to the Avena Judgment, do not agree with Mexico that that Judgment
requires the United States to provide the requisite review and
reconsideration. Mexico also relies on the failure of the United States
Executive Branch to seek legislation from the United States Congress to give
effect to the Avena Judgment. Mexico argues further that the imminent
execution of Mr. Medellín demonstrates that not all United States
governmental authorities agree that Avena imposes obligations of result.
13. None of the arguments advanced by Mexico meets the minimal requirements
necessary to demonstrate the existence of a dispute that would make Mexico’s
request for interpretation under Article 60 admissible. First, Mexico has
not been able to provide any evidence that the United States claims that its
obligation under the Avena Judgment is one of means rather than result.
True, the Texas courts have failed to comply with the Avena Judgment because
they do not believe that they are required to do so. But Texas does not
speak for the United States on the international plane. The United States
would, of course, be liable under international law for the failure of Texas
or, for that matter, any other state of the United States to comply with the
Avena Judgment, but only the United States Government is authorized under
domestic law and international law to speak for the United States on the
international plane. It follows that the position of Texas regarding the
meaning, scope or nature of the obligations of the United States under the
Avena Judgment is not imputable to the United States. What Texas does or
thinks is, therefore, irrelevant to the determination of the existence of a
dispute under Article 60.
14. Second, the fact that the Executive Branch of the United States has thus
far not asked the United States Congress to adopt legislation implementing
the Avena Judgment, does not prove that the Executive Branch considers that
it has no obligation to give effect to that Judgment or that the Congress
does not share the views of the Executive Branch that the United States has
that obligation. Instead of seeking legislation, the President of the United
States issued the Proclamation of 28 February 2005, ordering all the states
of the United States holding any of the Mexicans named in the Avena Judgment
to be provided with review and reconsideration. Until the Supreme Court
rendered the Medellín decision on 25 March 2008, ruling that the President
lacked the power to issue that order, the Executive Branch could reasonably
assume that the Supreme Court would uphold the President’s Proclamation;
that would have made congressional implementing legislation unnecessary. The
Proclamation route, moreover, had the advantage of speed over the
legislative route, which tends to be slow and cumbersome in the United
States. Once the Supreme Court declined to uphold the President’s
Proclamation and failed to give direct effect to the Avena Judgment, the
Executive Branch focused its efforts on dealing with the Texas courts by
trying, first, to get them to delay the execution order of Mr. Medellín and,
second, seeking to make it possible for him to obtain the review and
reconsideration to which he is entitled. These were and continue to be the
most urgent steps that need to be taken to avoid an imminent breach by the
United States of its obligations under the Avena Judgment.
15. Third, Mexico points to the President’s Proclamation in which he orders
the state courts to “give effect to the [Avena] decision in accordance with
general principles of comity”. It argues that the reference to “general
principles of comity” indicates that the United States does not believe that
it has any international law obligations to give effect to the Avena
Judgment. This argument overlooks the express wording of the Proclamation in
which the President makes the formal declaration that “I have determined . .
. that the United States will discharge its international obligations under
the decision of the International Court of Justice” in the Avena case. That
language amounts to a clear recognition by the United States that it has an
international legal obligation to comply with the Avena Judgment.
16. Fourth, Mexico also asserts that the judgment of the United States
Supreme Court in the Medellín case indicates that it does not consider that
the Avena Judgment imposes an obligation of result on the United States. In
support of that contention, Mexico points to the determination of the
Supreme Court that the Avena Judgment is not directly enforceable in the
United States without implementing legislation and that the President lacked
the constitutional authority to order the states to comply with the
judgment. Mexico’s argument fails to take account of the fact that the
Supreme Court expressly recognized in the Medellín decision that “the ICJ’s
Judgment in Avena creates an international law obligation on the part of the
United States” (Medellín v. Texas, 128 S. Ct. 1346 (2008), slip op., at 57).
It should not be forgotten, moreover, that the Avena Judgment allows the
United States to give effect to the judgment by “means of its own choosing”.
That language was chosen by this Court to indicate that the United States
was free to comply with its obligations under the Avena Judgment either by
giving it automatic or direct effect, or by means of implementing
legislation or whatever other measures that would produce the review and
reconsideration to which the Mexicans named in the Avena Judgment are
entitled. The finding of the Supreme Court that the Executive Branch, when
acting without Congressional support, lacks the power under the Constitution
of the United States to issue the order the President sought to promulgate
in his Proclamation thus in no way denied the international obligation of
the United States to give full effect to the Avena Judgment.
17. The various arguments advanced by Mexico thus do not permit the
conclusion, even on a preliminary basis, that there is a dispute between the
Parties, as that term is understood by Article 60, regarding the meaning or
scope of the Avena Judgment. Mexico has failed to present the minimal
evidence required to show that the United States has denied or acted in a
manner inconsistent with its obligation under the Avena Judgment to provide
the review and reconsideration to which the Mexicans named in that Judgment
are entitled. Accordingly, Mexico’s Request for the interpretation it seeks
under Article 60 of the Court’s Statute is manifestly unfounded and should
be dismissed as inadmissible. That being the case, the Court lacks
jurisdiction to deal with Mexico’s provisional measures request under
Article 41 of the Court’s Statute. But as I have already emphasized, the
dismissal of that request would not affect or weaken the obligation the
United States has to fully comply with the Avena Judgment, nor would
granting it strengthen that obligation.
18. To find the requisite jurisdiction for its Order in the present case,
the Court points out that the English text of Article 60 speaks of
“dispute”, whereas “contestation” is used in the French text of that
provision. The Court also notes that in two other provisions of the Statute
⎯ Article 36, paragraph 2, and Article 38 ⎯– the English “disputes” is
rendered as “différends” in French. This difference in the uses of the term
“dispute” prompted the Permanent Court of International Justice to conclude
that, given the wording of Article 60,
“[the Court] cannot require that the dispute should have manifested itself
in a formal way . . . it should be sufficient if the two Governments have in
fact shown themselves as holding opposite views in regard to the meaning or
scope of a judgment of the Court” (Interpretation of Judgments Nos. 7 and 8
(Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A. No. 13, p.
11).
19. I agree with the conclusion of the Permanent Court of International
Justice on which this Court relies, that the “disputes” referred to in
Articles 36 and 38 of the Statute call for a greater
degree of formality to establish the existence of a dispute than is required
under Article 60. This does not mean, however, that the unsubstantiated
claim by one party regarding the existence of a dispute, which is what we
have here, will satisfy the requirements of Article 60, whether or not we
rely on its French or English text. That very point was emphasized by this
Court as far back as 1950, when it declared:
“Obviously, one cannot treat as a dispute, in the sense of that provision
[Article 60], the mere fact that one Party finds the judgment obscure when
the other considers it to be perfectly clear. A dispute requires a
divergence of views between the parties on definite points . . .” (I.C.J.
Reports 1950, Asylum Case, Judgment, 27 November 1950, p. 403.)
20. I have already shown above that Mexico has presented no evidence to
support the conclusion, even on a preliminary basis, that one or more
federal authorities of the United States do not share the view of the
Executive Branch that paragraph 153 (9) imposes an obligation of result on
the United States. The finding by the Supreme Court that the Avena Judgment
is not directly applicable law without implementing legislation and that the
President lacks the authority without Congressional action to order the
States to comply with the Avena Judgment concerns principles of United
States constitutional law relating to the allocation of power between the
three branches of the United States. They have no bearing as such on the
compliance or non-compliance by the United States with its international
obligations. In the Avena Judgment, moreover, the Supreme Court expressly
declared that Judgment to be an obligation of the United States under
international law.
21. The fact that the United States Congress has not yet been asked by the
Executive Branch to adopt legislation for the reasons spelled out in
paragraph 16 above, does not prove even on a preliminary basis that this
body does not share the view of the Executive Branch that the Avena Judgment
requires the United States to comply with that Judgment.
22. In short, Mexico has presented not a scintilla of evidence showing that
the federal authorities of the United States do not share the view of the
Executive Branch regarding the obligation imposed on the United States by
the Avena Judgment.
23. It is true, of course, that Texas courts have thus far failed to give
effect to the Avena Judgment and that Texas authorities do not believe that
they are bound to do so. But while local authorities of unitary or federal
states that violate international law can by their conduct subject the
national authorities to breaches of international law, they do not speak for
their national authorities on the international plane, nor can their views,
if they conflict with those of the national authorities, have any bearing on
the existence or non-existence of a dispute between the Parties within the
meaning of Article 60.
24. Hence, when the Court declares that the Parties “apparently hold
different views as to the meaning and scope of that obligation of result,
namely, whether that understanding is shared by all United States federal
and state authorities and whether that obligation falls upon those
authorities” (Order, para. 55), the Court reaches two conclusions that have
no valid basis in law or fact. The first conclusion is based on the
erroneous assumption that one or more United States federal authorities do
not share the view of the Executive Branch regarding the nature of the
obligation Avena imposes. No evidence whatsoever is before the Court to
support that claim. The second conclusion flows from the Court’s decision
that the views of Texas, a state of the United States which does not and
cannot speak for the United States on the international plane, are relevant
in determining whether there exists a dispute between the United States and
Mexico within the meaning of Article 60. The latter conclusion has no basis
in international law and appears to establish a novel and dangerous
precedent regarding the legal consequences of positions espoused by local
governmental entities that conflict with the views of national authorities
concerning the nation’s international obligations and policies.
25. No showing has been made in the present case to support the conclusion,
even on a preliminary basis, that there exists a difference of opinion
between the Parties as to the meaning or scope of the Court’s finding in
paragraph 153 (9) of the Avena Judgment. What we have here instead is a
claim by only one of the Parties regarding the existence of a dispute that
is not supported by any relevant evidence before the Court. Mexico’s Request
for interpretation under Article 60 should therefore be dismissed, leaving
the Court without the prima facie jurisdiction it needs to adopt the present
Order. By nevertheless issuing this Order, the Court also opens itself up to
the future misuse for jurisdictional purposes of the Article 60
interpretation route which, it should be noted, imposes no time-limits for
the introduction of requests for interpretation.
26. To reiterate, my conclusion that the Court lacks the requisite
jurisdiction to issue this Order does not affect the continuing obligation
of the United States under the Avena Judgment to ensure that the Mexican
nationals identified in that case not be executed unless they have been
accorded the review and reconsideration mandated by that Judgment.
(Signed) Thomas BUERGENTHAL.
JOINT DISSENTING OPINION OF JUDGES OWADA, TOMKA AND KEITH
1. To our great regret we find ourselves unable to support the Order for
provisional measures adopted by the Court (Order, para. 80 II (a)).
Humanitarian considerations which clearly underlie the decision cannot
override the legal requirements of the Statute of the Court. In our view
Mexico has not demonstrated in its Application for interpretation that there
is “a difference of opinion between the Parties as to those points in
question in the judgment in question which have been decided with binding
force” (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów),
Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p.11).
2. The Order of the Court of today adds no additional protection, additional
to that already provided by the Court in its 2004 Avena Judgment to those
Mexican nationals whose rights under Article 36 (1) of the Vienna Convention
on Consular Relations were breached by the United States and who are thus
entitled to receive review and reconsideration of their convictions and
sentences.
3. There can be no doubt that if any of the 51 Mexican nationals, mentioned
in the Avena Judgment, is executed without receiving the review and
reconsideration of his conviction and sentence, the United States will be in
breach of its international obligation as determined by this Court in
paragraph 153 (9) of its Judgment.
*
4. The Court in its Judgment in Avena and Other Mexican Nationals (Mexico v.
United States of America), ruled
“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 [Vienna] Convention [on Consular Relations] and of paragraphs 138 to
141 of this Judgment” (I.C.J. Reports 2004, p. 72, para. 153 (9)).
In those paragraphs the Court, among other things, emphasizes that the
review and reconsideration should be effective and, accordingly, should take
account of the violation of the rights set forth in the Convention and of
the possible prejudice caused by the violation; further, full weight must be
given to the violation of the treaty rights, whatever may be the outcome of
the review and reconsideration.
5. The United States acknowledges without reservation the international
obligation arising from the Judgment. The President of the United States
made that clear in his memorandum of 28 February 2005. He “determined . . .
that the United States will discharge its international obligations under
[the Avena judgment] by having state courts give effect to the decision”.
Before the Court, the Agent of the United States emphasized the obligation
the United States has to comply with the Judgment.
6. As the Agent also recognized, however, the efforts of the United States
Government to ensure compliance have so far not been successful, except, as
Mexico informed the Court, in the case of one of the 51 Mexican nationals a
state court concluded that the petitioner had been
prejudiced in the sentencing phase, but not at trial, by the lack of
consular notification, and the death penalty was commuted, and in the case
of a second, this time without court process, the state Governor commuted
the death sentence in exchange for the offender’s agreement to waive his
right to review and reconsideration under the Avena judgment. The attempt to
achieve compliance in respect of all the other Mexican nationals by way of
the President’s determination was however found to be unsuccessful by a
decision of the Supreme Court of the United States given on 25 March 2008:
it held that neither this Court’s judgment nor the President’s Memorandum
constitutes directly enforceable federal law overriding limitations imposed
by state law (Medellín v. Texas, 128 S. Ct. 1346 (2008)).
7. In the three months following the failure of that proposed means of
achieving compliance with the judgment, the United States executive has
adopted a more specific approach, particularly to the Governor and Attorney
General of Texas, in respect both of Mr. Medellín, whose execution has been
set by a District Court in Texas for 5 August this year, and more generally
of other Mexican nationals. Two days before the hearing in the current
proceeding began, the Attorney General and the Secretary of State of the
United States sent a joint letter to the Governor of Texas in which they say
that “the United States seeks the help of the State of Texas” to give effect
to the Avena Judgment. The letter concludes as follows:
“We continue to seek a practical and timely way to carry out our nation’s
international legal obligation, a goal that the United States needs the
assistance of Texas to achieve. In this connection, we respectfully request
that Texas take the steps necessary to give effect to the Avena decision
with respect to the convictions and sentences addressed therein. We would
appreciate the opportunity to discuss possible mechanisms for compliance
with the Avena decision with you or your representatives.”
The Agent of the United States assured the Court, at the hearing on 19 June
2008, that the discussions referred to in the last sentence had already
begun.
8. It is clear that if those and other efforts to achieve an effective means
of review and reconsideration fail and one of the Mexican nationals is
executed before that review and reconsideration is undertaken and completed,
the United States would be in breach of its international obligation under
the Avena judgment. The Agent clearly acknowledged that at the hearing.
9. We too earnestly trust that effective ways of implementing the Avena
Judgment will be found by the federal and relevant state authorities of the
United States with the result that the Mexican nationals receive the
effective review and reconsideration of their convictions and sentences as
required by the Judgment. In that we are completely at one with all the
other Members of the Court.
*
10. This request for the indication of provisional measures was filed by
Mexico along with its Application requesting interpretation of paragraph 153
(9) (set out in paragraph 4 above) of the Judgment in the Avena case. The
provisional measures sought by Mexico and ordered by the Court have exactly
the object we have just stated -- that none of the five Mexican nationals is
to be put to his death unless his conviction and sentence have been
effectively reviewed and reconsidered as required by the 2004 Avena
Judgment. The provisional measure indicated in the Court’s Order reads as
follows:
“The United States of America shall take all measures necessary to ensure
that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén
Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not
executed pending judgment on the Request for interpretation submitted by the
United Mexican States, unless and until these five Mexican nationals receive
review and reconsideration consistent with paragraphs 138 to 141 of the
Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and
Other Mexican Nationals (Mexico v. United States of America).”
11. That Order is subject to a time-limit which is inherent in its
provisional character: the measures have effect only until the Court has
given its judgment on the Application for interpretation. The Order is also
limited to the five named Mexican nationals. The international obligation
arising from the Avena Judgment and set out in paragraph 1 above, by
contrast, is not subject to either limit. It continues until the convictions
and sentences of all 51 Mexican nationals have been effectively reviewed and
reconsidered.
12. In our opinion, provisional measures are not available in this case
because we consider, for reasons we give later, that Mexico has not
demonstrated on any standard that its Application requesting interpretation
is capable of falling within Article 60 of the Statute of the Court. It has
not demonstrated even on a provisional basis that there may be a dispute
about the meaning or scope of paragraph 153 (9) of the Judgment, the subject
of the Application for interpretation. Accordingly, the Application
requesting interpretation should be dismissed at this stage as inadmissible.
There would then be no pending proceeding and no rights under that
proceeding to be preserved as required by Article 41 of the Statute, and the
request for provisional measures made under that provision would as a
consequence have to be dismissed.
13. Article 60 provides as follows:
“The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the
request of any party.”
In its Application requesting interpretation, Mexico contends that a
“dispute” has arisen between it and the United States about whether the
obligation stated in paragraph 153 (9) of the Avena Judgment is an
obligation of result ⎯ as it, Mexico, contends ⎯ or an obligation of means,
which is how, in Mexico’s view, the United States understands the obligation
(Application, paras. 5, 52, 57 and 59). It is for the Applicant, in its
Application requesting interpretation, to indicate, in terms of Article 98
(2) and (3) of the Rules of Court, “the precise point or points in dispute
as to the meaning or scope of the judgment” and its supporting contentions.
In its Application for interpretation, under the heading The Interpretation
Requested,
“59. The Government of Mexico asks the Court to adjudge and declare that the
obligation incumbent upon the United States under paragraph 153 (9) of the
Avena Judgment constitutes an obligation of result as it is clearly stated
in the Judgment by the indication that the United States must provide
‘review and reconsideration of the convictions and sentences’ but leaving it
the ‘means of its own choosing’;
and that, pursuant to the foregoing obligation of result,
1. the United States must take any and all steps necessary to provide the
reparation of review and reconsideration mandated by the Avena Judgment; and
2. the United States must take any and all steps necessary to ensure that no
Mexican national entitled to review and reconsideration under the Avena
Judgment is executed unless and until that review and reconsideration is
completed and it is determined that no prejudice resulted from the
violation.”
That proposed interpretation, we observe, does not differ in any essential
element from what the Judgment expressly states as the obligation of the
United States in paragraph 153 (9) (para. 4 above).
14. The obligation of result imposed by the Judgment, according to Mexico,
means that the United States must take any and all steps necessary to
provide the review and reconsideration mandated by the Judgment. The Agent
and counsel of the United States made it clear before the Court that the
United States understands its obligation in exactly those terms, and as an
obligation of result. The correspondence before the Court, both preceding
and following the Application requesting interpretation, shows the United
States as continuing to be engaged, as it was earlier when it promulgated
the President’s determination and participated in the related court
proceedings based on it in Texas and the United States Supreme Court, in
attempting to establish effective review and reconsideration. The United
States has not contested and does not contest in any way its obligation to
achieve that result of effective review and reconsideration. It is plain
that, the Presidential determination having failed to achieve the intended
result, the United States is obliged to continue to pursue other
possibilities. Mexico has proposed some possible methods but the decision of
the United States not to pursue those possibilities indicates no more than
differences about methods of implementation. It is striking that the
correspondence between the Parties is all about various ways of implementing
or giving effect to the obligation. We cannot see any showing at all in that
correspondence or elsewhere that the Parties are in dispute over the meaning
or scope of the obligation stated in paragraph 153 (9).
15. In its Application, Mexico also calls attention to the failure of the
Texas courts to provide the required effective review and reconsideration.
That failure has culminated so far in the scheduling by a Texas court of the
date and time for the putting to death of Mr. Medellín. According to Mexico,
“Texas, a constituent state of the United States, does not recognize that
the obligation to comply subjects its own law to that of binding
international law.”
In its oral submissions, Mexico, contending, by reference to Article 4 of
the International Law Commission’s Draft Articles on State Responsibility
for Internationally Wrongful Acts that in international law the conduct of
the Texas authorities was to be treated as an act of the United States,
stated as follows:
“Texas is the United States. And by scheduling Mr. Medellín’s execution
before he has received the remedy mandated by this Court in Avena, Texas has
unmistakably communicated its disagreement with Mexico’s interpretation of
the Judgment. Texas clearly does not believe that it has an obligation of
result . . .”
That amounts to a dispute, Mexico says, between it and the competent organs
and authorities in the State of Texas.
16. The proposition of law on which Mexico relies is not relevant in this
context. It helps to determine the existence or not of the international
responsibility of a State for a breach of international law when the breach
is committed by an organ exercising public functions, whatever position that
organ holds in the organization of the State. Undoubtedly, as the United
States accepts, if the Texas authorities go ahead and put Mr. Medellín to
death before the required review and reconsideration is carried out, the
United States will be in breach of its international obligations. But it
does not follow that Mexico and the United States are in dispute about the
meaning or scope of the Avena judgment simply because the Texas authorities
have so far not given effect to the obligation of the United States under
the 2004 Judgment.
17. For the purposes of Article 60 of the Statute of the Court, as generally
in international law and practice, it is the Executive of the State that
represents the State and speaks for it at the international level. Other
organs, whether part of the central government or of a territorial unit,
unless otherwise authorized, do not. Since Mexico must found its Application
on a dispute with the United States Executive about the scope or meaning of
the Judgment at the international level, it cannot depend in that respect on
any position taken by the authorities of Texas. It must point to a dispute
with the United States Executive and it has failed to do that.
18. The Court in its Order states that, while it seems that both Parties
regard paragraph 153 (9) of the Avena judgment as an international
obligation of result, they nevertheless apparently hold differing views as
to the meaning and scope of that obligation of result, namely, whether that
understanding is shared by all United States federal and state authorities
and whether that obligation falls upon those authorities (Order, para. 55).
We disagree with this finding, which appears to be essential to the
reasoning supporting the Order, for two reasons. First, whether the
understanding is shared by all federal and state authorities is a matter of
fact and does not give rise to any matter of interpretation. Second, the
issue whether the obligation “falls upon those authorities” is not one of
interpretation which was raised by Mexico in exchanges with the United
States or in its Application; it accordingly has not become the subject of
dispute with the United States. We would also note that the obligation
stated in paragraph 153 (9) is stated as “an obligation of the United States
of America”, completely in accordance with principle and consistent
practice, reflected for instance in subparagraphs (4), (5), (6), (7) and (8)
as well as (9) of paragraph 153.
19. We turn to differences in the wording of provisions of the Statute which
in the English text uses the word “dispute”. The French text of Articles 36
(6) and 60 of the Statute uses the word “contestation” while, by contrast,
Article 36 (2) about the jurisdiction of the Court and Article 38 about its
function use “différend”, with the English text using “dispute” in all four
provisions. We note that “contestation” is also used in Article 36 (6)
concerning “disputes” (the word used in English) about jurisdiction. The
Spanish text uses three expressions, “las controversias”, in both Articles
36 (2) and 38, “disputa” in Article 36 (6) and “desacuerdo” in Article 60.
The Chinese text uses the one word, “zhēngduān”, meaning dispute in all four
provisions. And the Russian text uses the one word, “spor” meaning dispute,
in all four. Given those differences between the equally authentic texts of
the Statute we do not see the differences between the particular English and
French words as significant.
20. We are however prepared to accept the argument that in the context of
Article 60 the requirement of “dispute [or “contestation”] as to the meaning
or scope of the judgment” as compared with “all legal disputes” or “such
disputes” in Articles 36 (2) and 38 has a wider connotation. As the
Permanent Court of International Justice indicated in 1927, less may be
required by Article 60 in terms of any formal manifestation of the dispute.
But the Parties still in fact have to show themselves as holding opposite
views in regard to the meaning or scope of the Judgment of the Court.
Further, as the Permanent Court, reading Article 60 in the context of
Article 59, went on to say
“The natural inference to be drawn is that the second sentence of Article 60
was inserted in order, if necessary, to enable the Court to make quite clear
the points which had been settled with binding force in a judgment, and, on
the other hand, that a request which has not that object does not come
within the terms of this provision. In order that a difference of opinion
should become the subject of a request for an interpretation under Article
60 of the Statute, there must therefore exist a difference of opinion
between the Parties as to those points in the judgment in question which
have not been decided with binding force.” (Interpretation of Judgments Nos.
7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No.
13, p.11, applied by the Court in Application for Revision and
Interpretation of the Judgment of 24 February 1982 in the Case concerning
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 217-218, para. 46.)
As this Court said in 1950, a dispute, in the sense of Article 60, “requires
a divergence of views between the parties on definite points” (Request for
Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, I.C.J. Reports 1950, p. 403). As those cases make clear and
principle dictates, it is for the Court, and not for one of the Parties, to
decide whether dispute or contestation exists; see also e.g. Applicability
of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports
1988, p. 27. The Parties, in the circumstances of this case, cannot on any
basis be seen as “holding opposite views in regard to the meaning or scope”
of paragraph 153 (9) of the 2004 Judgment.
21. We conclude that Mexico has not satisfied that requirement of Article 60
of the Statute that it demonstrate the existence of a dispute about the
meaning or scope of the Judgment.
22. It follows that in our opinion the Application requesting interpretation
should be dismissed. As a consequence, the request for provisional measures
which is designed to protect rights asserted in that Application would no
longer have a purpose and should also be dismissed. We accordingly voted
against subparagraphs I and II (a) of the operative clause of the Order
(para. 80).
23. We have voted in favour of subparagraphs II (b) and III, on the basis
that the Court has made the two primary decisions and the other two are
consequential on them.
*
24. We conclude with two comments. First, on the decision of Mexico to
initiate these proceedings, we cannot fail to record our full understanding
of the great concern of the Government of Mexico and the people it
represents, a concern manifested in its good faith attempts, including its
bringing of the proceedings, to protect its nationals.
25. Second, we repeat our earnest trust that effective ways of implementing
the Avena Judgment will be found by the federal and relevant state
authorities of the United States with the result that the Mexican nationals
receive the effective review and reconsideration of their convictions and
sentences as required by the Judgment.
(Signed) Hisashi OWADA.
(Signed) Peter TOMKA.
(Signed) Kenneth KEITH.
DISSENTING OPINION OF JUDGE SKOTNIKOV
1. I fully share Mexico’s concerns regarding the scheduled execution of a
Mexican national. I understand Mexico’s frustration with the United States
being hitherto unable to take measures which would ensure its compliance
with the Avena Judgment. However, I voted against the Court’s Order
indicating provisional measures for the reasons which are explained below. I
believe that the Court should have proceeded differently in order to support
Mexico’s ultimate goal of enforcement of the Avena Judgment.
2. The United States has stated before the Court that it unequivocally
agreed with the interpretation of the Avena Judgment requested by Mexico,
and in particular that that Judgment imposes an “obligation of result” on
the United States. There is no disagreement between Mexico and the United
States that no executions should be carried out unless and until the Mexican
nationals in question have received review and reconsideration consistent
with the Avena Judgment. The United States has also recognized that its
failure to achieve this result would engage its responsibility under the
principle of State responsibility.
3. For its part, Mexico in its concluding remarks no longer claimed that the
United States itself understood paragraph 153 (9) of the Avena Judgment as
imposing only an obligation of means. Rather, it stated that:
“it is clear that constituent organs of the United States do not share
Mexico’s view that the Avena Judgment imposes an obligation of result. It is
thus clearly established that there is a dispute between the United States
and Mexico as to the meaning and scope of paragraph 153 (9) of said Judgment
. . .” (CR 2008/16, p. 21; emphasis added.)
4. In response, the United States has pointed out that under international
law it is responsible for the actions of its competent organs and political
subdivisions, and that this would indeed be the case should the United
States fail in its obligations under the Avena Judgment. Furthermore, the
United States has stated that the provisional measures Order requested by
Mexico in its final submissions “would do no more than restate the
obligation to provide review and reconsideration in the cases at issue” (CR
2008/17, p. 14, para. 27). It follows that the United States has agreed with
the statement contained therein that the United States must act “through all
its competent organs and all its constituent subdivisions, including all
branches of government and any official, state or federal, exercising
government authority” (CR 2008/16, p. 22) to achieve the result sought in
the Avena Judgment. Finally, the United States has held that its competent
organs and subdivisions do not speak on behalf of the United States, either
under international law or under the United States Constitution, and that
their positions are not attributable to the United States for the purposes
of determining whether there is a dispute between the United States and
Mexico as to the meaning or scope of the Avena Judgment.
5. It is clear, in my opinion, that even if a constituent organ of the
United States does not share Mexico’s view that the Avena Judgment imposes
an obligation of result, it cannot be concluded that there is a dispute
between Mexico and the United States, the latter accepting without
reservations Mexico’s interpretation of the Avena Judgment. The two
Governments have not shown themselves as holding opposite views in regard to
the meaning and scope of the Avena Judgment (see Interpretation of Judgments
Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11,
1927, P.C.I.J., Series A, No. 13, p. 10; 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, I.C.J. Reports 1985, p. 218, para. 46)).
6. However, the Court, after considering the views of the two Parties, has
come to the conclusion that:
“while it seems both Parties regard paragraph 153 (9) of the Avena Judgment
as an international obligation of result, the Parties nonetheless apparently
hold different views as to the meaning and scope of that obligation of
result, namely, whether that understanding is shared by all United States
federal and state authorities and whether that obligation falls upon those
authorities” (Order, para. 55).
7. I disagree with the Court’s finding that there is still an apparent
dispute between Mexico and the United States for the following reasons.
8. According to the Rules of Court, it is for Mexico, not for the Court, to
indicate “the precise point or points in dispute as to the meaning or scope
of the judgment” (Art. 98, para. 2). In addition, in an interpretation case,
“it is the duty of the Court not only to reply to the questions as stated in
the final submissions of the parties, but also to abstain from deciding
points not included in those submissions” (Request for Interpretation of the
Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J. Reports
1950, p. 402; 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, I.C.J. Reports 1985, p. 217, para. 44)).
The Court cannot take the initiative in interpreting provisions of its
judgments which are, under Article 60 of the Statute of the Court, “final
and without appeal” and must speak for themselves. An interpretation is in
order only if lack of clarity as to the meaning or scope of the binding
provisions of a judgment impedes its execution. There is no such lack of
clarity: Mexico insists and the United States accepts that no death
penalties should be carried out unless and until the time the Mexican
nationals in question receive review and reconsideration in accordance with
the Avena Judgment. This is the result which the United States must achieve,
“by means of its own choosing” (para. 153 (9) of the Avena Judgment), to
comply with its obligations under the Avena Judgment. There is no ambiguity.
There is no disagreement. There is nothing for the Court to interpret.
9. In my view, the Court should have taken judicial notice of the United
States position that it agrees with the interpretation of the Avena Judgment
requested by Mexico. The Court should have concluded that Mexico’s request
for interpretation does not fall within the scope of Article 60 of the
Statute of the Court, which is applicable only where a dispute exists with
respect to the meaning or scope of a judgment of the Court. Furthermore, the
Court should have used its inherent powers to request the United States to
take all measures necessary, acting through its competent organs and
authorities, state or federal, to ensure that no Mexican national entitled
under the Avena Judgment to receive review and reconsideration consistent
with that Judgment is executed unless and until such review and
reconsideration has taken place.
10. Instead of thus reminding the United States of its duty to comply with
the Avena Judgment, the Court has chosen to decide that the Avena Judgment
might require clarification and has ordered provisional measures. These
measures add nothing to the obligations of the United States under the
Judgment and therefore serve no purpose. Moreover, these measures are to
have effect only until the Court has given its decision on the
interpretation of the Avena Judgment. Consequently, the Court’s Order is not
only redundant, it also contains a temporal limit which is inherent in the
interim character of measures of protection but absent from the Judgment
itself. This result is a clear indication that the Court has taken a wrong
route.
11. The real issue is compliance with the Judgment rather than its
interpretation. The United States admits that, because of internal
difficulties, it has so far been unable to put in place a legal framework
necessary to ensure compliance with the Avena Judgment. That is deeply
regrettable. The United States must act to comply with the Avena Judgment.
(Signed) Leonid SKOTNIKOV.
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