Non-Corrigé
Uncorrected
CR 2008/16
International Court Cour internationale
of Justice de Justice
THHEAGUE LHAAYE
YEAR 2008
Public sitting
held on Friday 20 June 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning the Request for Interpretation of the Judgment of 31 March 2004 in
the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)
(Mexico v. United States of America)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le vendredi 20 juin 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à la Demande en interprétation de l’arrêt du 31 mars 2004 en l’affaire
Avena et autres ressortissants mexicains (Mexique c. Etats-Unis d’Amérique)
(Mexique c. Etats-Unis d’Amérique)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges Ranjeva
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the United Mexican States is represented by:
Mr. Juan Manuel Gómez-Robledo, Ambassador, Under-Secretary for Multilateral Affairs and
Human Rights, Ministry of Foreign Affairs of Mexico,
Mr. Joel Antonio Hernández García, Ambassador, Legal Adviser, Mi nistry of Foreign Affairs of
Mexico,
Mr. Jorge Lomónaco Tonda, Ambassador of Mexico to the Kingdom of the Netherlands,
as Agents;
Mr. Donald Francis Donovan, Debevoise & Plimpton LLP, New York,
MsSandraBabcock, Clinical Director, Center for International Human Rights, Northwestern
University Law School, Chicago, Illinois,
Mr. Víctor Manuel Uribe Aviña, Deputy Legal Adviser, Ministry of Foreign Affairs of Mexico,
Ms Catherine M. Amirfar, Debevoise & Plimpton LLP, New York,
Mr. Gregory J. Kuykendall, Director of the Mexican Capital Legal Assistance Program,
Mr.Agustín Rodríguez de la Gala, Director for Foreign Litigation, Office of the Legal Adviser,
Ministry of Foreign Affairs of Mexico,
Mr. Erasmo Lara Cabrera, Legal Counsel, Embassy of Mexico in the Kingdom of the Netherlands,
as Advocates-Counsellors;
Mr. Pablo Arrocha Olabuenaga, Office of the Le gal Adviser, Ministry of Foreign Affairs of
Mexico,
Ms Jill van Berg, Debevoise & Plimpton LLP, New York,
as Assistants.
The Government of the United States of America is represented by:
Mr. John B. Bellinger, III, Legal Adviser, United States Department of State,
as Agent;
Mr. James H. Thessin, Deputy Legal Adviser, United States Department of State,
as Co-Agent;
Mr. Stephen Mathias, Assistant Legal Adviser for the Office of Political Military Affairs, United
States Department of State, - 5 -
Le Gouvernement des Etats-Unis du Mexique est représenté par :
S. Exc. M. Juan Manuel Gómez-Robledo, ambassadeur, sous-secrétaire aux affaires multilatérales
et aux droits de l’homme, ministère des affaires étrangères du Mexique,
S. Exc. M.Joel Antonio Hernández García, am bassadeur, conseiller juridique du ministère des
affaires étrangères du Mexique,
S. Exc. M. Jorge Lomónaco Tonda, ambassadeur du Mexique auprès du Royaume des Pays-Bas,
comme agents ;
M. Donald Francis Donovan, cabinet Debevoise & Plimpton LLP, New York,
MmeSandraL.Babcock, directrice de la Human Rights Clinic, Center for International Human
Rights Northwestern University Law School, Chicago, Illinois,
M. Víctor Manuel Uribe Aviña, conseiller juridi que adjoint du ministère des affaires étrangères du
Mexique,
Mme Catherine Amirfar, cabinet Debevoise & Plimpton LLP, New York,
M. Gregory J. Kuykendall, directeur du programme d’assistance juridique du Mexique aux
personnes encourant la peine de mort,
M. Agustín Rodríguez de la Gala, directeur ch argé des contentieux à l’étranger au bureau du
conseiller juridique du ministère des affaires étrangères du Mexique,
M. Erasmo A. Lara Cabrera, conseiller juridique à l’ambassade du Mexique aux Pays-Bas,
comme conseils et avocats ;
M. Pablo Arrocha Olabuenaga, bureau du conseiller juridique, ministère des affaires étrangères du
Mexique,
Mme Jill Van Berg, cabinet Debevoise & Plimpton LLP, New York,
comme assistants.
Le Gouvernement des Etats-Unis d’Amérique est représenté par :
M. John B. Bellinger, III, conseiller juridique du département d’Etat des Etats-Unis d’Amérique,
comme agent ;
MJ.amesHT. hessin, conseiller juridique ad joint du département d’Etat des Etats-Unis
d’Amérique,
comme coagent ;
M.D. StephenMathias, conseiller juridique adjo int du bureau des affaires politico-militaires du
département d’Etat des Etats-Unis d’Amérique, - 6 -
Professor Vaughan Lowe, Q.C., Chichele Professor of International Law, University of Oxford,
member of the English Bar, associate member of the Institut de droit international,
as Counsel and Advocates;
Mr. Todd F. Buchwald, Assistant Legal Adviser fo r the Office of United Nations Affairs, United
States Department of State,
Ms Rebecca M. S. Ingber, Attorney-Adviser, United States Department of State,
Mr. Daniel P. Kearney, Jr., Special Assistant to the Legal Adviser, United States Department of
State,
Ms Mary Catherine Malin, Assistant Legal Adviser for the Office of Consular Affairs, United
States Department of State,
Ms Denise G. Manning, Deputy Legal Counsellor, Embassy of the United States of America,
The Hague,
Ms Julie B. Martin, Attorney-Adviser, United States Department of State,
Mr. Michael J. Mattler, Attorney-Adviser, Offi ce of United Nations Affairs, United States
Department of State,
Ms Heather A. Schildge, Legal Counsellor, Embassy of the United States of America, The Hague,
Mr. Charles P. Trumbull, Attorney-Adviser, United States Department of State,
as Counsel. - 7 -
M.Vaughan Lowe, Q.C., professeur titulaire de la chaire Chichele de droit international à
l’Université d’Oxford, membre du barreau d’Angl eterre, membre associé de l’Institut de droit
international,
comme conseils et avocats ;
M.Todd F. Buchwald, conseiller juridique adjoint chargé des questions concernant les
Nations Unies au département d’Etat des Etats-Unis d’Amérique,
Mme Rebecca M. S. Ingber, avocat-conseiller au département d’Etat des Etats-Unis d’Amérique,
M. Daniel P. Kearney, Jr., assistant spécial du conseiller juridique du département d’Etat des Etats-
Unis d’Amérique,
Mme Mary Catherine Malin, conseiller juridique adjoint du bureau des affaires consulaires du
département d’Etat des Etats-Unis d’Amérique,
Mme Denise G. Manning, conseiller juridique adjoin t à l’ambassade des Etat s-Unis d’Amérique à
La Haye,
Mme Julie B. Martin, avocat-conseiller au département d’Etat des Etats-Unis d’Amérique,
M.Michael J. Mattler, avocat-conseiller chargé des questions concernant les NationsUnies au
département d’Etat des Etats-Unis d’Amérique,
MmeHeather A.Schildge, conseiller juridique à l’ambassade des Etat s-Unis d’Amérique à
La Haye,
M. Charles P. Trumbull, avocat-conseiller au département d’Etat des Etats-Unis d’Amérique,
commceonseils. - 8 -
The PRESIDENT: Please be seated. The sitting is now open. The Court meets to hear the
second round of the oral observations of Mexico on the request for provisional measures. And I
call upon Ambassador Hernández García.
Mr. HERNÁNDEZ: Madam President, honourable Members of the Court, good morning.
The dispute between Mexico and the United States
1. In its oral interventions yesterday, the Government of Mexico was careful to respect this
Court’s precise instructions to limit its comments to the content of its request for provisional
measures. After all, the Court did not convene this hearing to entertain arguments regarding the
merits of Mexico’s Request for interpretation. Mexico’s intent, therefore, was to present its
arguments on the merits at the appropriate phase of the proceedings. Nonetheless, because the
United States devoted the great majority of its ar guments to the merits, today Mexico is compelled
to respond. Needless to say, Mexico does not in this manner wish to prejudice its right to present
further arguments on the merits at the proper time.
2. Yesterday afternoon, the United States repeat edly affirmed its commitment to the full
implementation of the Avena Judgment 1. Mr.Bellinger indicated that the United States is still
2
attempting to “persuade” the state of Texas to provide review and reconsideration , and he
cautioned this Court that the issuance of provisional measures could compromise the ability of the
3
United States to achieve its goal of full compliance . He and other members of the United States
delegation claimed that the United States agrees with Mexico that the Avena Judgment imposes an
4
obligation of result, not an obligation of means . To be clear, Mexico welcomes any good faith
attempt to ensure that its nationals are provided wi th effective review and reconsideration that is
fully consistent with this Court’s mandate. But it is not apparent to Mexico that all of the
constituent parts of the United States share th e Administration’s stated view regarding the
interpretation and scope of the Avena Judgment.
1
CR2008/15, p.9, para. 6 (Bellinger); ibid., p.60, para. 4 (Bellingeribid., p.36, para.22 (Thessin)ibid.,,
para. 27 (Lowe).
2
CR 2008/15, p. 36, para. 22 (Bellinger).
3Id., p. 38, para. 27.
4Id., p. 31, para. 3; p. 23, para. 15, p. 25, para. 23 (Mathias); p. 41, para. 36 (Thessin). - 9 -
3. It is a basic principle of international law, as my colleague Catherine Amirfar stated
5
yesterday , that the actions of Texas engage the international responsibility of the United States.
As this Court is well aware, Article 4.1 of the Articles on State Responsibility establishes that:
“[T]he conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercise s legislative, executive, judicial, or any
other functions, whatever position it holds in the organization of the State, and
whatever its character as an organ of the cen tral government or of a territorial unit of
the State.”6
Indeed, this Court recognized in its Judgment in the case concerning the Application of the
Convention on the Prevention and Puni shment of the Crime of Genocide that Article 4.1 serves to
codify customary international law (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment of 26 February 2007, para. 385).
4. Texas is the United States. And by sche duling 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 ⎯ and nothing that the United States told you yesterday disproves the
existence of that dispute between Mexico and the competen t organs and authorities in the state of
Texas. And while the United States Supreme Court, the executive branch of the United States, and
the state of Texas may proclaim that the United States has an international legal obligation to
comply with the Avena Judgment, this does not signify that each of those actors considers the
international obligation to be one of result, rather than one of means. It goes without saying that if
the constituent parts of the United States do not understand the Avena Judgment as an obligation of
result, they do not share Mexico’s view regarding the meaning and scope of the Judgment. This is
precisely why Mexico’s submissions ask this Court to issue provisional measures indicating that all
competent organs and all of the constituent subdivisions of the United States, including all
branches of government and any official, state or federal, exercising government authority, take all
5
CR 2008/14, p. 30, para. 12 (Amirfar).
6Draft Articles on Responsibility of States for Internati onally Wrongful Acts, adopted by the International Law
Commission at its Fifty-third session (2001), Official Records of the General Assembly, Fifty-sixth Session, Supplement
No. 10 (A/56/10), Art. 4. - 10 -
measures necessary to ensure that its nationals are not executed pending the conclusion of these
proceedings.
5. Madam President, Members of the Court, the United States has provided you with a series
of diplomatic correspondence and ot her documents that, in Mr. Mathias’s words, illustrate that the
dispute between Mexico and the United Stat es is over enforcement, not interpretation 7. Because
the United States relied so heavily on these documen ts, and because I was the author of some of
them, I would like to take a few moments of your ti me to explain the context of those diplomatic
exchanges.
6. Mexico freely admits that it has made ev ery effort to promote full compliance with the
Avena Judgment. But these efforts should not be confused with the dispute that brings us to this
Court. Mexico is committed to ensuring that th e rights of its nationals are vindicated, and it will
continue to seek compliance with the Avena Judgment at every turn. For example, since the United
States Supreme Court issued its decision in Medellin v. Texas 8, Mexico has repeatedly asked the
United States Government to support legislation in the United States Congress that would fully
implement the right to review and reconsideration under Avena. But in the three months since the
Supreme Court issued its decision, the executiv e branch has neither proposed legislation, nor
engaged in a dialogue with Members of Congress to explore legislative options.
7. Several weeks ago, as a courtesy to th e United States, Mexico informed the executive
branch that it was considering the presentation of a request for interpretation to this Court. This
news provoked a series of diplomatic corresponde nce, conversations, and meetings. The United
States urged Mexico not to file its Request. It claimed that it was engaging Texas officials in a
dialogue about means of implementing the Avena Judgment. Specifically, it referred to a
suggestion already made by the state of Texas that the Texas executive branch might be willing to
create a panel of retired judges to review the cases of the Mexican nationals named in the
Judgment. The United States explains that this panel could make recommendations to the Texas
clemency board as to whether or not each national was prejudiced by the violation of Article 36 in
his case.
7
CR 2008/15, p. 26, para. 28 (Mathias).
8Medellin v. Texas, 128 S. Ct. 1346 (2008). - 11 -
8. Mexico responded that this would not achieve the result required by the Avena Judgment:
namely, judicial review and reconsideration ( Avena and Other Mexican Nationals (Mexico v.
United States of America), Judgment, I.C.J. Reports 2004, pp. 65-66, para. 140). An administrative
panel, regardless of the biographies of its members, is not a court. It cannot provide a judicially
binding decision, it is not subject to appeal, and ultimately, its recommendations would not be
binding on the Texas clemency board. In the end, the United States proposal would have led to the
result rejected by this Court in Avena: that is, entrusting the Texas clemency board with the
ultimate power to accept or reject evidence rega rding the violation of each national’s Article36
rights, with no judicial oversight (id., p. 66, para. 143).
9. The United States next proposed sending a letter to Texas Governor Perry that would seek
Texas’s support in implementing the Avena Judgment. Mexico informed the United States that in
its view, the proposed letter did not go far enough. First, the Texas executive branch has no power
to create a court that will be able to provide judi cial review and reconsideration of the convictions
and sentences of the Mexican nationals affected by the Judgment. Only the Texas legislature can
create such a court, and the Texas legislature is in recess until January 2009.
10. Second, Mexico advised the United States that according to the Supreme Court’s opinion
in Medellín, Congress would need to pass legislation to implement the Avena Judgment
nationwide. For this reason, Mexico asked the United States to seek a reprieve for Mr.Medellín
that would give Congress the necessary time to en act such legislation. And because Mexico
believed that the Texas Governor and clemency board might heed such a request to stay
Mr.Medellín’s execution, Mexico stated that it would defer filing its Request for interpretation if
the United States agreed to make the request . This proposal was made in diplomatic
correspondence, the purpose of which was not to express Mexico’s legal position regarding its
Request for interpretation. This letter was sent to Mr. Bellinger on 3 June 2008.
11. Before this Court, the United States argues that Mexico’s diplomatic overtures evince an
exclusive concern with compliance, rather than a dispute over the meaning or scope of the Avena
Judgment. But the two are not mutually exclusive. Mexico is concerned about compliance with
the Judgment, it is firmly committed to obtaining meaningful review and reconsideration for its - 12 -
nationals, and it is also convinced that the United States and its constituent parts do not share
Mexico’s views regarding the scope or meaning of the Judgment.
12. Indeed, the correspondence the United States submitted to the Court yesterday provides a
potent illustration of the divergent views of Mexico and the United States. The United States
informed you that it had made extraordinary effo rts, and had taken highly unusual measures, in
9
order to ensure compliance with the Avena Judgment . And the United States went on to say that it
considers the Avena Judgment to impose an obligation of result 10. In this regard, I would ask that
you examine the letter sent by Secretary Rice and Attorney General Mukasey to Governor Perry on
Tuesday. Nowhere do these offici als request that Texas refrain from executing Mr. Medellín until
he is provided with review and reconsideration. Nowhere does it ask the Governor to grant a
reprieve. Nowhere does it suggest that Tex as should pass legislation to implement the Avena
Judgment. I draw your attention to these omissions because if the United States truly agreed with
Mexico that the Avena Judgment imposed an obligation of result, it would certainly take the not so
extraordinary step of simply asking Texas offici als to defer the execution of Mr.Medellín. The
United States Government similarly declined Mexi co’s request that it ask Texas prosecutors to
refrain from seeking an execution date for Mr. Medellín in the first instance.
13. Madam President, distinguished Members of the Court, Professor Lowe yesterday told
11
the Court that “litigation is not a game” . Mexico could not agree more. One of its nationals is
currently sitting in a prison cell in Livingston, Te xas, where he has been placed in a form of
administrative segregation that the prison authorities call “death watch”. It is literally a countdown
to his execution. But notwithstanding these facts, the United States has the temerity to suggest that
Mexico’s Request for interpretation is an abuse of process that would damage “the integrity and
12
reputation of the tribunal which is the target of the attempt to enlist it in inappropriate activities” .
It is deeply offensive to suggest that my Gove rnment is toying with this Court, that it has
13
“manufactured” a dispute to bring pressure on the United States . Mexico did not “manufacture”
9CR 2008/15, p. 11, para. 9 (Bellinger).
10
Id., p. 9, para. 3.
11
CR 2008/15, p. 51, para. 21 (Lowe).
12Id., p. 51, para. 24.
13Id., pp. 46-47, paras. 5-6. - 13 -
the execution order in your folders. Mexico did not invent the dispute over the scope and meaning
of the Avena Judgment. And Mexico has no need to defend its decision to invoke the jurisdiction
of this Court.
14. Madam President, I would ask that you call upon my colleague, Mr.Donald Donovan,
who will address the requirements for provisional measures. I thank you for your attention.
The PRESIDENT: Thank you, Your Excellency. I now call Mr. Donovan.
DMOr. OVAN:
Requirements for provisional measures
1. Madam President, Members of the Court, it is always useful at this point in the
proceedings to identify exactly what is at issue and what is not. Here, that exercise is especially
useful.
2. First, the United States does not contest that at this stage of the proceedings, the Court
need satisfy itself only that the Applicant has made out a prima facie case of jurisdiction.
3. Second, the United States does not contest that in order to qualify for provisional
measures, the Applicant need satisfy only three well-established requirements: it must show that
the measures are intended to preserve the respective rights of the Parties; it must show irreparable
injury, which necessarily incorporates a requirement of urgency; and it must show that the
provisional measures sought would not anticipate the merits.
4. Third, the United States does not contest th at the execution of Mr. Medellín or any of the
other four Mexican nationals covered by the re quest for provisional measures, without having
received the review and reconsider ation ordered by this Court in Avena, would constitute
irreparable injury of the most profound kind ⎯ both to Mexico and to the nationals for whom it
seeks to exercise its right of diplomatic protection.
5. Fourth, the United States does not contest that Mr.Medellín is now scheduled to be
executed on 5August, and that the Texas trial cour t that scheduled his execution flatly rejected
Mr. Medellín’s request, as well as that of Mexico, that no date be set in order to allow appropriate - 14 -
action to be taken at either the state or the federal level to bring about review and reconsideration in
his case.
6. Fifth, the United States does not contest th at in the circumstances Mexico has established,
its Application qualifies as urgent within the meaning of this Court’s cases.
7. Sixth, the United States does not contest that by issuing the provisional measures Mexico
has sought, the Court would in no way anticipate the merits of the Request for interpretation.
Indeed, the United States does not contest the proposition that the only way the Court would
anticipate the merits is by allowing the execution to go forward, because that would disable the
Court from granting effective relief if Mexico prevails on its Request.
8. Finally, the United States does not contest that as a legal matter, the Court may indicate
provisional measures in the context of a request for interpretation. For the reasons outlined
yesterday by Ms Amirfar, that result follows plainly from Article 41 and its object and purpose.
9. I have not yet addressed the United States position on the existence here of prima facie
jurisdiction, or on the requirement in the circumstances here, that provisional measures seek to
protect rights that are at issue in the underlying pr oceeding. On the first, prima facie jurisdiction,
the United States argues that “[i]n the absence of a dispute with respect to issues raised by
Mexico’s Request for interpretation, [its] claim is not capable of falling within the provisions of
14
Article 60” , which is the basis on which it has invoked the Court’s jurisdiction. And according to
the United States, this Court should find now that there is no dispute 15.
10. On the second, the relation between th e provisional measures sought and the underlying
claim, the United States appears to argue that Mexico has failed to establish the required nexus 16.
Again, its rationale is that Mexico has failed to make an affirmative showing that a dispute exists
about the meaning or scope of the Avena Judgment.
11. In either form, and those set forth in sev eral sets of submissions, these arguments reduce
to the single contention that, even at this stage of the proceedings , the Court can reject Mexico’s
Request for interpretation on the merits on the ground that there is no genuine dispute between the
14
CR 2008/14, p. 36, para. 23 (Thessin).
15
See, e.g., CR 2008/15, p. 9, para. 3 (Bellinger).
16CR 2008/15, p. 33, para. 12; p. 36, para. 23 (Thessin). - 15 -
Parties as to the interpretation of the Avena Judgment. As the United States acknowledged in the
course of its oral submissions yesterday, it draws myriad consequences from that single point. That
means, of course, that if the United States is wr ong on that point, none of the consequences follow.
So I turn to that point.
12. Before I do so, though, I should pause for a moment. As I just pointed out, the common
element in the United States arguments on, first, prima facie jurisdiction and, second, the relation
between the relief sought by way of provisional measures and the relief sought in the underlying
Application, is that both are premised on the notion that Mexico is wrong on the merits. With the
greatest respect, the United States has simply i gnored the most basic aspect of this Court’s
provisional measures jurisprudence, which is th at the disposition of a request for provisional
measures should not prejudge the merits. That rule is so fundamental that you, Madam President,
drew the Parties’ attention to it at the very outset of the hearing yesterday. It is flatly inconsistent
with the standards governing the issuance of provi sional measures by this Court for a respondent
State to ask that the measures be withheld because it expects to prevail on the merits.
13. That is especially so when the respondent State uses the argument in an attempt to defeat
jurisdiction. The foundation of the Court’s Article 60 jurisdiction in a dispute over the meaning or
scope of a judgment cannot change the prima facie character of the jurisdictional showing required
at the provisional measures phase. As the United States effectively acknowledged yesterday, it
would have to show that there was manifestly no basis for concluding that the Parties dispute the
meaning or scope of the Avena Judgment before denying provisional measures on the basis of a
lack of jurisdiction. Yet in both of the cases the United States cited yesterday, the case concerning
the Legality of the Use of Force and the case concerning Armed Activities on the Territory of the
Congo, the instruments on which the applicant sought to found jurisdiction were incapable on their
face of supporting the types of claims raised by the applicants.
14. Specifically, in the case concerning the Legality of the Use of Force , the Court held that
Yugoslavia could not properly raise claims against Belgium under the Genocide Convention
because the threat or use of for ce against a State — which was the conduct at issue — could not in
itself constitute an act of genocide within the meaning of the Convention ( Legality of Use of Force
(Yugoslavia v. Belgium), Provisional Measures, Order of 2June1999, I.C.J. Reports 1999(I) , - 16 -
p.138, paras.40-41). Thus, the Court reasoned, even if it were to find that the acts imputed by
Yugoslavia to Belgium had in fact been comm itted, the complained-of conduct was simply not
capable of coming within the purview of the instrument conferring jurisdiction. Likewise, in the
Armed Activities on the Territory of the Congo case, the Court held that one of the jurisdictional
basis cited by the Congo, the Unesco Constitution, was on its face incapable of supporting the type
of claim raised (Armed Activities on the Territory of the Congo (New Application:2002)
(Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10July2002,
I.C.J. Reports 2002, pp. 235-236, para. 42, and p. 248, para. 83).
15. Neither of those cases supports the United States argument here. Article60 supplies a
clear jurisdictional basis upon which to sustain cl aims concerning a dispute as to the scope or
meaning of a judgment of this Court should those cl aims be substantiated in the merits phase. For
purposes of establishing prima facie jurisdiction, that should end the enquiry.
16. In any event, the Court need not linger on these points, because even if the Court were
determining the merits, the undisputed facts before the Court plainly reveal the requisite dispute.
17. As an initial matter, Ambassador Herná ndez emphasized just a few moments ago, and
each of Ambassadors Gómez-Robledo, Hernández, and Lomónaco emphasized yesterday, that
Mexico welcomes the assurances of Mr.Bellinger and his colleagues that the United States is
committed to comply with the Avena Judgment and that the federal executive endorses Mexico’s
interpretation of that Judgment as imposing an obligation of result. The United States pointedly did
not come before this Court and advise that it intends to breach.
18. But those assurances cannot change th e facts on the ground. The United States
emphasized in its submissions yesterday, that an applicant cannot create a dispute by simply
alleging one. Fair enough. But, equally, a res pondent cannot defeat a request for interpretation by
walking into this Court and pretending that the dispute does not exist. The Court has already put
that point as well as it can be put: in its 1962 Judgment in the South West Africa Cases, the Court
explained that a “mere assertion is not sufficient to prove the existence of a dispute any more than a
mere denial of the existence of the dispute proves its non-existence” ( South West Africa
(Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J.
Reports 1962, p.328). And as the United States observed yesterday and the Court held in its - 17 -
Judgment in the Peace Treaties case, whether a dispute exists is “a matter for objective
determination” ( Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950 , p.74). Here, the objective circumstances plainly
reveal the existence of a dispute.
19. As Ambassador Hernández has just pointed out, the most glaring evidence of that dispute
is at tab 1 of your folder: it is the order of the District Court of Harris County, Texas, scheduling
the execution of Mr. Medellín for 5 August. Texas is a competent authority of the United States. It
is, in Mexico’s view, fully bound by the Avena Judgment. Yet, as Ms Babcock explained yesterday
and the United States does not contest, the District Court expressly rejected requests by
Mr.Medellín and Mexico that it exercise its discr etion to defer setting an execution date until
legislative efforts in Texas or the United Stat es Congress might provide a vehicle for review and
reconsideration. Indeed, as Ms Babcock advised, the court did not even do Ambassador Hernández
the courtesy of allowing him to speak. That is not a court bound by limitations of domestic law;
that is a court bound to violate international law in the form of the Avena Judgment. Its actions
reflect a different view of the requirements of Avena than that enunciated by the federal executive,
and its actions establish the existence of a dispute.
20. That difference of view is not limited, by the way, to the local authorities in Texas.
There is no indication that the Governor of Texas believes that the State is bound. He has, so far as
can be determined, taken no steps of any kind, wh ether of compulsion or persuasion, to stop the
execution, reflecting a position that Texas is not bound.
21. Nor, as Ambassador Hernández has also poi nted out, is there any basis for the Court to
conclude at this point that there is no difference in view at the federal level. For example, the
United States has not identified any action taken to date in Congress that would indicate that the
federal legislature understands itself bound by Avena to ensure that the nationals covered by the
Judgment receive review and reconsideration.
22. Finally, Ambassador Hernández has canvassed the discussions between the respective
foreign ministries of Mexico and the United States, which for the reasons he has explained also
confirm the existence of a dispute. Among other things, the United States has not identified any - 18 -
action the executive has taken to urge legisla tion in the Congress, and it has not given any
indication that it will intervene in the Texas proceedings to seek to avoid Mr. Medellín’s execution.
23. Assessing those objective circumstances, it simply cannot be said that there is no dispute
between Mexico and the United States over the meaning and scope of the Avena Judgment, let
alone that the absence of such a dispute is so ma nifest as to prompt the Court to ignore its own
jurisprudence by making a final determination on the matter at the provisional measures stage.
24. Finally, with the Court’s permission, I would like to address the United States argument
that by filing a Request for interpretation of the Avena Judgment, and seeking in connection with
that Request that the Court indicate provisional measures, Mexico is asking the Court to transgress
the proper bounds of the judicial function. That argument takes a hard form and a soft form. The
hard form is that Mexico’s Request for interp retation should be dismissed now, without further
proceedings, as an abuse of process. The soft form is the theme running throughout the United
States submissions that Mexico is asking the Court to do something outside its function of
determining legal rights, in this case in the form of an interpretation of Avena.
25. The hard form first. Here’s the propos ition. Mr. Medellín is sitting on death row in
Texas, and a Texas trial court has just set an execu tion date in flagrant violation of Mexico’s view
of the requirements of Avena . Neither the Texas executive, nor the Texas legislature, nor the
federal executive, nor the federa l legislature has taken any legal steps at this point that would stop
that execution from going forward. In Mexico’s view, that failure to act reflects a dispute over the
meaning and scope of Avena. So it files a Request for interpretation before this Court and an
accompanying request for the indication of provisional measures requiring the United States to take
all measures necessary to ensure that the execution does not go forward pending disposition of the
Request.
26. The United States considers the initiation of proceedings in those circumstances an abuse
of process. Here is the course it urges the Court to take. According to the United States, the Court,
without determining whether there is jurisdiction (in other words, even though the Court may have
jurisdiction and hence Mexico the right to proceed ), and without determining whether Mexico is
actually entitled on the merits to the relief it requests under Article 60 (in other words, even though
Mexico might be entitled to that relief), should simply dismiss the Application, now, on the ground - 19 -
that it is improperly motivated. What is the impr oper motivation? According to the United States,
the only reason Mexico could have brought the case was to “bring pressure” on the United States to
comply with Avena — a formula the United States repeated at least five times 17. How are we to
know that that allegedly improper motivation was the true reason for the filing? No need for
evidence. We can rely on common sense, the lawyer’s best friend.
27. In short, the United States suggests that, on the basis of the doctrine of abuse of process,
this Court might dismiss a jurisdictionally well -founded and meritorious application for relief
solely on the basis of speculation that the applican t’s true motive is to gain an unfair advantage in
pursuit of compliance with a legally binding judgment of this Court. At the same time, the United
States insists that the Court would be applying the doctrine in pursuit of the objectives of
preserving the integrity of the judicial process and preventing abuse of the judicial function. To be
blunt, if those are the objectives, it would be hard to design a procedure or result more surely
calculated to make a mockery of them.
28. It is no wonder that the United States does not provide a single international decision
dismissing a claim on the basis of abuse of proces s. In the three cases in which the doctrine was
invoked before this Court, including its Judgment in Armed Activities on the Territory of the Congo
cited by the United States yesterday, the Court summarily rejected it (Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Order of 10July2002 ,
I.C.J. Reports 2002, p.219, paras.45, 49, 94; Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, Judgment , I.C.J. Reports 1992, p.240, paras.37-38; Arbitral
Award of 31July 1989 (Guinea-Bissau v. Senegal), Judgment , I.C.J. Reports 1991, p.53,
paras. 26-27). The United States cannot even identif y an accepted definition of the doctrine or the
standard by which it would apply.
29. But before I leave abuse of process, there are two additional points to be made about the
United States reliance on the Armed Activities Judgment. First, while Mexico did not understand
the United States to suggest otherwise, we should be clear that the portions of the Judgment quoted
by the United States did not rely on the doctrine of abuse of process. Second, in that case, the
1CR2008/15, p.9, para.5 (Bellinger);ibid., pp.46-47, para.6; p.56, para.3p. 56, para. 41, p. 58, para. 50
(Lowe). - 20 -
Court was in no way suggesting that it had the authority to look past the objective terms of an
applicant’s request in order to recharacterize its subjective motivation and, on that basis, dismiss
the claim. As is crystal clear not only from the Judgment read as a whole, but from the very
passage quoted by the United States, when the Court assessed “the object of the Congo’s
Application”, it did so on the basis of th e claim as set forth in Congo’s pleadings (Armed Activities
on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Order of
10 July 2002, I.C.J. Reports 2002, p.248, para.85). That Judgment provides no support
whatsoever for the United States extravagant claim here.
30. So to the soft form of the argument. The United States suggests that, in the guise of
asking the Court for an interpretation pursuant to Ar ticle 60 of the Statute, Mexico is attempting to
lure this Court across the boundary between adjudication and enforcement. The United States has
squarely asked the Court as well to consider the domestic political effect within the United States
of its ruling on Mexico’s Application. And by suggesting that the requested interpretation would
have no “practical consequences”, the United States has effectively suggested that the Court should
18
take account of the prospect of compliance with its ruling in determining whether to render it .
31. On earlier occasions when this Court has ha d to deal with the same subject-matter, the
Court has heard similar arguments that it was bei ng asked to sail in forbidden waters. As long ago
as 1998, during oral proceedings on Paraguay’s request for provisional measures, and subsequently
in the LaGrand merits phase, the United States warned the Court that by granting the requested
relief it would improperly act as a do mestic court of criminal appeal 19, and on that basis urged the
denial of the relief.
32. In those cases, as well as in Avena, the Court was not deterred. Instead, the Court
carefully explained that its function was to apply in ternational law to the facts before it, including
facts arising from a State’s judicial processes, and then prescribed relief moored tightly to the legal
rights it had determined. The Court thereby conf irmed that the surest way to avoid either
18CR 2008/15, p. 60, para. 5 (Bellinger).
19Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Oral
Proceedings, 7 April 1998, 10a.m., para. 4.7; LaGrand (Germany v. United States of Am erica), Merits, Oral
Proceedings, 14 Nov. 2000, 10 a.m., para. 2.27. - 21 -
overstepping its authority or failing to fulfil its dut y was to hew faithfully to the applicable legal
instruments and the guidance provided by its own jurisprudence.
33. So too here. The instruments here are Articles 41 and 60 of the Court’s Statute, and the
guidance is that provided by the Court’s we ll-settled jurisprudence on the requirements for
provisional measures. Mexico respectfully submits that those authorities plainly entitle it to the
relief it has sought, and it requests the Court to exercise its undoubted authority to grant that relief.
34. Madam President, may I now ask the Court to call upon Ambassador Lomónaco Tonda.
The PRESIDENT: Thank you, Mr. Donovan. The Court does now call upon
Ambassador Lomónaco Tonda.
Mr. LOMÓNACO: Madam President, distinguished Members of the Court, good morning.
Concluding remarks and submissions
1. It is now my privilege to make brief concluding remarks and to formulate the final
submissions of Mexico on its request for the indi cation of provisional measures. I shall be brief
and would emphasize a few points.
2. First, as we have repeatedly stated, Mexico welcomes any good faith attempt to ensure
that its nationals are provided with effective review and reconsideration that is fully consistent with
this Court’s mandate in the Avena Judgment. Nonetheless, 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, as described in our Application and
throughout these oral pleadings.
3. Second, it has been amply demonstrated that this Court has jurisdiction, and surely prima
facie jurisdiction, to entertain Mexico’s Request for interpretation.
4. Third, Mexico has demonstrated ample basis for the indication of provisional measures.
In light of the imminent risk posed by the sche duling of executions of Mexican nationals in the
state of Texas, there can be no dispute that Me xico’s present request falls squarely within the
purview of Article 41 of the Statute of the Court. - 22 -
5. Madam President, distinguished Members of the Court, taking into account the United
States suggestion that Mexico’s submissions require greater precision, Mexico makes the following
revised submissions:
(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,
CésarRoberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and
Roberto Moreno Ramos are not executed pending th e conclusion of the proceedings instituted
by Mexico on 5June2008, unless and until the five Mexican nationals have received review
and reconsideration consiste nt with paragraphs138 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).
6. This concludes Mexico’s oral arguments. Madam President, Members of the Court, I
thank you for your kind attention.
The PRESIDENT: Thank you, Your Excellency. This does indeed bring an end to the
second round of oral argument of Mexico. The Court meets again at 4.30 this afternoon to hear the
second round of oral argument of the United States of America. The Court now rises.
The Court rose at 10.45 a.m.
___________
Audience publique tenue le vendredi 20 juin 2008, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président, en l'affaire relative à la Demande en interprétation de l'arrêt du 31 mars 2004 en l'affaire Avena et autres ressortissants mexicains (Mexique c. Etats-Unis d'Amérique) (Mexique c. Etats-Unis d'Amérique)