Non-Corrigé
Uncorrected
CR 2008/15
International Court Cour internationale
of Justice de Justice
THHEAGUE LHAAYE
YEAR 2008
Public sitting
held on Thursday 19 June 2008, at 3 p.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 jeudi 19 juin 2008, à 15 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 s itting is now open. The Court meets this
afternoon to hear the first round of oral observations of the United States of America on the request
for the indication of provisional measures submitted by Mexico.
I now call upon Mr. John B. Bellinger, III, Agent of the United States.
Mr.BELLINGER: Thank you, Madam President, Members of the Court, learned counsel.
Let me start with an apology that I was not here this morning to hear directly the arguments of
Mexico. I have just flown in this morning and had wanted to be here, both to be with the Court and
to hear those arguments. But I have read them in written format already.
Introduction
1. It is of course a great honour for me to be here before the Court on behalf of the United
States. As many of you know, I have been in Th e Hague a number of times over the last three and
half years as Legal Adviser to the Secretary of State to discuss my Government’s commitment to
international law, but this is my first opportunity to appear before this distinguished Court.
Although it is unfortunate that we are here in a dispute with our neighbours and good friends
Mexico, nevertheless it is a great privilege for me to be here, to appear before the Court. I am
joined today by representatives of the United Stat es Department of State, several of whom will
assist me in our presentation in response to Mexi co’s request. In addition, Vaughan Lowe, Q.C.,
who is of course well known to the Court, will be addressing you today in connection with our
presentation.
2. The United States strongly opposes Mexico’s request for provisional measures in this
case. We recognize, of course, that an execution date has been set for Mr. José Ernesto Medellín,
and that this lends immediacy to this matter. But despite the gravity of Mr.Medellín’s sentence,
the Court, and the Parties before it, must be gui ded above all by respect for international law,
including appropriate limits on the jurisdiction of this Court. For several reasons, we do not
believe that the Court can entertain Mexico’s A pplication or its request for provisional measures
based on that Application. - 9 -
3. First, Mexico has failed to demonstrate that there is any dispute whatsoever between the
United States and Mexico regarding the mean ing or scope of the Court’s decision in Avena. The
unbroken jurisprudence of this Court and the plai n language of Article60 of this Court’s Statute
require a dispute for the Court to proceed. Here, Mexico asks the Court for an interpretation that
Avena imposes an international legal obligation of “r esult” not merely of “means” that requires the
United States to provide the “review and reconsideration mandated by the Avena Judgment”
(Request for Interpretation of the Judgmen t of 31March2004 in the Case concerning Avena and
Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of
America), para.59). The United States does not contest this interpretation; in fact, it entirely
agrees with that interpretation. There simply is no “dispute as to the meaning or scope” of Avena
for the Court to hear.
4. Second, provisional measures are wholly inappropriate in this case. Given the obvious
absence of a dispute, the Court lacks prima facie jurisdiction to proceed. In addition, the Court
should be especially wary of imposing provisiona l measures in an interpretation case where the
Parties clearly accept their existing obligation to comply with the Court’s Avena decision.
5. Third, Mexico’s meritless assertion of a “dispute” amounts to an abuse of process, and the
Court is fully empowered to dismiss this Applica tion. The clear purpose of Mexico’s Application
is simply to bring pressure to bear on the United States by again initiating this action before the
Court. There is no legal dispute underlying Mexico ’s Application. The inherent powers of the
Court allow the Court to dismiss applications that constitute an abuse of its process.
6. Now, contrary to Mexico’s assertion that th ere is a “dispute” for the Court to hear, we
have consistently interpreted Avena to impose an obligation on the United States to provide review
and reconsideration of the c onvictions and sentences of the individuals included in the Avena
decision. Moreover, the President has consiste ntly sought, and continues to seek, ways to
implement Avena. I have personally witnessed and been involved in these efforts both as Legal
Adviser to the Secretary of State and in my pr evious capacity as Legal Adviser to the National
Security Council. Since the Avena decision, the United States has undertaken a series of actions ⎯
actions that continue to this day, up until moment s before I appeared before the Court in which I
was talking to officials in the Government of Texas ⎯ to implement the Court’s decision. These - 10 -
actions have included: the issuance by the Presi dent of a memorandum directing state courts to
give effect to Avena; letters from the United States Attorney General to relevant state attorneys
general regarding the President’s determination; three filings by the United States in support of the
Presidential determination requiring re view and reconsideration for the Avena defendants in the
United States Supreme Court; and an extraordinary appearance by our Justice Department on
behalf of Mr.Medellín in Texas state courts. This is in addition to the numerous informal
consultations the federal government has held with officials from the various United States states
implicated by the Avena decision. It is important for the Court to understand what we have done,
not because the United States believes its ac tions thus far have fully implemented Avena, but
because these actions reflect the seriousness with wh ich we regard our obligation to comply with
the Court’s decision. We did not agree with that decision, of course ⎯ no losing litigant ever
does ⎯ but we take our international legal obligations extremely seriously and therefore we respect
the Court’s decision. We have gone to great le ngths to implement the Court’s Judgment, and we
will continue to do so.
7. First, to appreciate how far the United States has gone in attempting to implement Avena,
the Court needs to understand the domestic law constraints we faced. In the immediate aftermath
of the Avena decision, my Government engaged in high-l evel internal deliberations to determine
how to implement the Court’s Judgment. Two aspects of the United States political system limited
options that were available to the President. The first is our federal structure, in which the
constituent states of the United States retain a s ubstantial degree of autonomy, particularly in
matters relating to criminal justice. The Court is certainly aware of this feature of the United States
system of government, as this fundamentally is what was at issue in the initial Avena proceeding
itself. The second aspect is our constitutional st ructure of a divided executive, legislative, and
judicial functions of government at the federal level. This division constrains the President’s
ability to act without the concurrence or acquiescen ce of our legislative and judicial branches of
government. The President’s consistent efforts to implement the Avena decision in the face of
these constraints signal the importance that the United States attaches to its obligation under
international law to comply with this Court’s decision. - 11 -
8. So let me explain to you the approach that we took to implement Avena. In early 2005,
upon the recommendation of Secretary of State Condoleezza Rice, the President issued an
extraordinary Memorandum to the Attorney Genera l of the United States directing that the state
courts give effect to Avena. The Memorandum, which you have in your package at tab 1, is dated
28 February 2005, and I would like to read it because it is significant in what it says:
“The United States is a party to the Vienna Convention on Consular Relations
(the ‘Convention’) and the Convention’s Optional Protocol Concerning the
Compulsory Settlement of Disputes (Optional Protocol), which gives the International
Court of Justice (ICJ) jurisdiction to decide disputes concerning the ‘interpretation and
application’ of the Convention.
I [the President of the United States] have determined, pursuant to the authority
vested in me as President by the Constitu tion and the laws of the United States of
America, that the United States will discharge its inter-national obligations under t
he
decision of the International Court of Justice in the Case Concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) (Avena) , 2004 ICJ 128
(Mar.31), 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.”
9. The President’s determination was designe d to provide the Mexican nationals named in
the Avena Judgment with review and reconsideration of their Vienna Convention claims in state
courts. State courts were to determine whether the violations of the Convention identified by this
Court caused actual prejudice to the defendant at trial or sentencing. In addition, state law
procedural default rules were to be deemed in applicable. The President’s memorandum was an
extraordinary attempt to implement Avena, for several reasons . First , given the traditional
deference by the national government to state law in the matters of criminal justice, the President’s
effort to require our states to ignore their own cr iminal state procedural rules was highly unusual.
Second, the President is a former Governor of Texas, and that made it politically difficult for him to
order his former state to ignore their own laws, es pecially to give additional legal process to a
confessed murderer and rapist of two young girls. The President’s decision was highly unpopular
and widely condemned in Texas. Nevertheless, he made the decision to comply with this Court’s
Judgment, recognizing our international law obligation.
10. The President’s efforts went beyond issuing just this Memorandum though. In addition,
beginning in 2005, the Justice Department filed am icus briefs in litigati on involving one of the
named Avena defendants seeking to obtain review and reconsideration of hi s Vienna Convention - 12 -
claims in state courts. At the time of the President’s determination, Mr.Medellín’s case seeking
post-conviction review of his sen tence and conviction in federa l court was pending before the
United States Supreme Court. One of the i ssues before the Supreme Court was whether the Avena
Judgment entitled Mr.Medellín to review and r econsideration of his conviction and sentence
despite the state law procedural bar. The United States filed an amicus brief in the court stating
that under the President’s determination, the individuals named in Avena could file individual
petitions in state courts, and state courts were to recognize the Avena decision. In addition, the
brief stated that where the President’s determination was applicable, “a state court is required to
review and reconsider the conviction and sentence of the affected individual to determine whether
1
the violations identified by the ICJ caused actual prejudice to the defence at trial or at sentence” .
The state courts were required to provide this review and reconsideration.
11. In order to publicize the President’s deci sion, 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,
and enclosing the President’s Memorandum and a copy of the amicus brief filed in 2005 by the
United States in the Supreme Court case of Mr. Medellín. And that is in tab E of your materials.
12. As a result of these efforts, in 2005, the Supreme Court held off deciding Mr. Medellín’s
case, allowing it instead to proceed in our Texas state courts. Mr.Medellín had filed a second
application for post-conviction relief in Texas state courts. The application relied on the Avena
decision and on the President’s memorandum. In deciding not to rule on Mr.Medellín’s case the
first time, the Supreme Court concluded that the new Texas post-conviction proceeding “may
provide Medellín with the review and reconsideration of his Vienna Convention claim that the ICJ
required” 2.
13. Thereafter, in Texas courts, the United States went to extraordinary lengths to support
Mr.Medellín’s post-conviction application. Our Fe deral Department of Justice filed an amicus
brief and the Justice Department 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
1
Brief for the United States as Amicus Curiae in Medellín v. Dretke, 544 U.S. 660 (2005), at 47 (emphasis added)
(available atttp://www.usdoj.gov/osg/briefs/2004/3mer/1ami/2004-5928.mer.ami.pdf).
2Medellín v. Dretke , 544 U.S. 660, 664 (2005) (available at www.supremecourtus.gov/opinions/04pdf/04-
5928.pdf). - 13 -
3
reconsideration required by the Avena Judgment . Now the Court needs to understand just how
unusual this is in the United States. It almost never happens that the federal Government enters an
appearance in state court proceedings. Unfort unately, 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. Indeed,
the Texas court concluded that the President, their former-Governor, had acted unconstitutionally
in seeking to pre-empt Texas state law, even in order to comply with an international law
obligation.
14. So last year, Mr. Medellín again appealed to the United States Supreme Court. This time
he sought to reverse the decision of the Texas state courts not to give effect to Avena in his
post-conviction petition. And again, the United States weighed in on behalf of Mr. Medellín. First,
the Federal Department of Justice urged the Supreme Court to decide to hear the case, to accept the
case for review. Review was warranted, our Justice Department argued in its brief, because
“[t]he decision of the Texas Court of Crimin al Appeals to invalidate the President’s
action frustrates the Executive’s determinations in this sensitive area, and thwarts the
intent of the Optional Protocol [to the Vie nna Convention] and U.N. Charter to confer
upon the President adequate authority a nd responsibility to carry out the Nation’s
treaty obligations” .4
Second, once the Supreme Court agreed to hear the merits of Mr. Medellín’s case, the Department
of Justice again filed an amicus brief on be half of Mr.Medellín. I personally joined the brief on
behalf of Secretary of State Rice. And once again ⎯ just as it had in Texas state court and in
Mr.Medellín’s earlier case before the Supreme Court ⎯ the United States argued that the
President’s determination require d Texas courts to recognize the Avena Judgment consistent with
principles of comity and to provide the review and reconsideration required by Avena 5. Our
Solicitor General, the most senior litigator in our Government, personally argued the case before
the Supreme Court.
3Brief for United States as Amicus Curiaein Ex parte Medellín, 223 S.W. 3d 315 (Tex. Crim. App. 2006)
(available atttp://www.debevoise.com/publications/pdf/CCA%20US%20Amicus.PDF).
4Brief for United States as Amicus Curiae in Support of Pet. for Cert. in Medelv. Texas, 128 S. Ct. 1346
(2008), p. 8 (available at http://www.usdoj.gov/osg/briefs/2006/2pet/5ami/2006-0984.pet.a.i.pdf)
5Brief for United States as Amicus Curiae in Medellin v. Texas , 128 S. Ct. 1346 (2008) (available at
http://www.usdoj.gov/osg/briefs/2006/3mer/1ami/2006-0984.mer.ami.pdf). - 14 -
15. Now regrettably, as the Court knows, less than three months ago, the Supreme Court
issued a decision in Mr.Medellín’s case that rejected the United States arguments and refused to
treat the President’s determination as binding on st ate courts. And this is a major setback for the
President’s efforts to implement Avena. The court ultimately concluded that the President lacked
the inherent authority under our Constitution, and that our Congress had not given him the requisite
additional authority to order states to comply with the decision of this Cour t. The opinion stated
that “the responsibility for transformi ng an international obligation [such as Avena] into the
6
domestic law falls to Congress” .
16. Now, I want to draw this Court’s atten tion to several critical points about our Supreme
Court’s decision. I suspect many of you have read it, or have seen press coverage of it but I wanted
to walk you through a couple of the more salient aspects.
N1ow., first and perhaps most important, the Medellín decision did nothing to change the
United States basic obligation under in ternational law to comply with the Avena decision. To the
contrary, the Supreme Court reaffirmed that obligation ⎯ it was the starting-point of the court’s
analysis. The Supreme Court stated plainly:
“No one disputes that the Avena decision ⎯ a decision that flows from the
treaties through which the United States submitted to ICJ jurisdiction with respect to
Vienna Convention dispu7es ⎯ constitutes an international law obligation on the part
of the United States.”
So the Supreme Court reaffirmed this Court’s d ecision as an international law obligation of the
United States. Rather, the court’s holding entirely concerned the status of that obligation in United
States domestic law ⎯ that is, whether the Avena decision was automatically enforceable in United
States courts, or whether the President had the author ity to direct state courts to comply with the
decision. The Supreme Court concluded that th is Court’s decisions are not automatically and
directly enforceable in United States courts, but it reiterated that those decisions are entitled to
“respectful consideration” by our courts: and in this, the United States does not stand apart. It is in
fact not unusual for domestic legal systems not to provide for the direct enforcement of judgments
of this Court.
6
Medellin v. Texas , 128 S. Ct. 1346 (2008), slip op. at 30 (available http://www.supremecourtus.gov/
opinions/07pdf/06-984.pdf).
7Id., 8. - 15 -
18. Second, the opinion in Medellín itself shows the lengths to which the President went to
implement Avena. In rejecting the President’s contention that Congress had acquiesced in his
authority to require state courts to recognize Avena, the court ⎯ our Supreme Court ⎯ observed:
“The President’s Memorandum is not supported by a ‘particularly longstanding practice’ of
congressional acquiescence, but rather is what the United States itself has described as
‘unprecedented action’.” 8 The court effectively ruled that the President’s actions to give effect to
Avena were unconstitutional under United States domestic law.
19. Third, as a result of the Supreme Court’s decision, a further decision by this Court
regarding the United States obligation to comply with Avena would not be directly enforceable in
United States courts, and could not provide the President any additional authority to implement
Avena. The Supreme Court’s decision was grounde d in its understanding of the United Nations
Charter and the ICJ Statute. According to the cour t, neither of these instruments contemplated that
ICJ judgments would be automatically enforceable in domestic courts. Nor did they provide the
President with authority to direct state courts to give effect to ICJ judgments. Any decision by this
Court on Mexico’s present Application will confront these same limits of United States domestic
law. So any new decision of this Court could not enlarge the power that the President has given
what the Supreme Court has said. As a domestic legal matter, a new decision therefore would add
nothing to the original Avena Judgment. And as a practical matter, it could significantly
complicate our United States domestic efforts to implement the Avena decision.
T2he. Medellín decision by our Supreme Court is still fresh; it is not even three months
old. For three years the United States pursued a c onsistent strategy for implementing this Court’s
decision in Avena. Having fallen short in that initial effo rt, the United States is now urgently
considering its alternatives. The Medellín decision was not the end of the process. We do not
believe our obligation is discharged by the efforts we have undertaken to this point. Indeed, since
the Medellín decision, there have been numerous hi gh-level discussions re garding alternative
approaches. Mexico is well aware of these discussion s; indeed, they have been part of them, for
we have tried to work together with our Mexican friends to find an acceptable solution.
8
Id., 36. - 16 -
21. Just this week, just two days ago, as a result of these continuing efforts, Secretary of
StateRice and Attorney General Mukasey jointly sent a letter to the Governor of Texas ⎯ which
you have in your materials at tab 3 ⎯ calling attention to the United States continuing international
law obligation and formally asking him to work w ith the federal government to provide the named
Avena defendants the review and reconsideration required by the Avena decision. The letter
requests “the assistance of the State of Texas in carrying out an international legal obligation of the
United States”. It notes the importance that the United States attaches to that obligation, and states:
“The United States has held intensiv e discussions with the Government of
Mexico after the Supreme Court’s decision. On June 5 Mexico nonetheless made a
new filing in the International Court of Justice regarding the Avena decision. 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 [and this is the Secretary of State of the United States and the Attorney
General of the United States speaking] we r espectfully 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 a ppreciate the opportunity to discuss possible
mechanisms for compliance with the Avena decision with you or your
representatives.”
And I can assure you that the discussions between the federal government and the state of Texas
have already begun.
22. These efforts on the part of the federa l government to reach out to Texas and other
involved states are not to be dismissed lightly. Persuasion may bring about what compulsion could
not. Since Avena, in connection with efforts by our federal government to persuade states to give
effect to the Avena Judgment, several Mexican nationals named in Avena have already received
review and reconsideration of their convictions and sentences.
23. One such case is that of OsvaldoTorres (No.53). In Avena, this Court indicated that
Mr.Torres’s clemency proceeding could be an appropriate forum for providing review and
reconsideration ( Avena and Other Mexican Nationals (Mexico v. United States of America),
Judgment, I.C.J. Reports 2004 , p.66, para.143). On 23April2004 ⎯ before the President’s
Memorandum ⎯ my predecessor, Legal Adviser of the Department of State,
William Howard Taft, IV, sent letters to the Okla homa Pardon and Parole Board and the Governor
of Oklahoma in connection with Mr. Torres’s 7 May 2004 clemency hearing ⎯ and you have those
letters at tabs4 and 5. The letters pr ovided a copy of this Court’s Judgment in Avena, noted the - 17 -
Court’s conclusion that the United States had breached its Vienna Convention obligations with
respect to Mr.Torres, and explained the Court’s holdings with respect to providing review and
reconsideration. Mr.Taft requested that the Bo ard and Governor give careful consideration to
Mr.Torres’s request for clemency, and he asked ea ch to consider whether the failure to provide
Mr.Torres with consular information and notification pursuant to Article36 of the Vienna
Convention should be regarded as having ultimately led to his conviction and sentence.
24. The Governor, acting on a favourable recommendation by the Board, ultimately
commuted Mr. Torres’s sentence to life without paro le. In his grant of clemency, the Governor ⎯
Governor of Oklahoma ⎯ specifically noted that he had taken into account the Vienna Convention
violations in Mr. Torres’s case and the requests of the Department of State.
25. Several individuals covered by the Avena decision have been provided review and
reconsideration of their conviction and sentence in state or federal courts. Many other cases are
still pending, some on direct appeal, and there will be further opportunities for courts to provide the
necessary review and reconsideration. In still other cases covered by the Avena decision, the death
sentences have been commuted on other grounds, a nd in one case the individual was deported to
Mexico.
26. So contrary to Mexico’s suggestion, we do not believe that we need make no further
effort to implement this Court’s Avena Judgment, and we continue to work to give that Judgment
full effect, including in the case of Mr.Medellín. Given the short legislative calendar for our
Congress this year, it would not be possible for both houses of our Congress to pass legislation to
give the President authority to implement the Avena decision. There is simply not enough time.
27. Our efforts have focused therefore on find ing the most practical and effective way to
implement the Avena decision, including the letter to the G overnor of the State of Texas from the
Secretary of State and the Attorney General. We continue to pursue these efforts in order to bring
about review and reconsideration of the convictions and sentences as required by the Avena
decision. Indeed, intervention by this Court at this stage could significantly complicate and even
undermine these efforts in our dialogue between our national and state governments. But whatever
the Court’s decision at this stage of the case, the United States will continue to work to that end, - 18 -
exploring every practically available way to give effect to the Avena Judgment. I think our actions
since Avena speak to the seriousness of that commitment.
28. Madam President, Members of the Court, let me introduce the counsel for the United
States and summarize briefly the remaining presentations in our first round today.
29. I will ask you first to call upon Mr. Stephen Mathias of the United States Department of
State, who will present the law regarding Article 60 and explain why this case presents no “dispute
as to the meaning or scope” of the Avena Judgment.
30. We will then ask the Court to hear from Mr.JamesThessin, also of the Department of
State. Mr.Thessin will demonstrate that the Court lacks prima facie jurisdiction to issue
provisional measures in this case. He will additionally explain why the Court should proceed with
especial caution before issuing provisional measures in a case such as this, involving interpretation.
31. Following Mr.Thessin, we will ask you to hear from Mr.MichaelMattler of the
Department of State, who will explain that Mexico’s request for provisional measures improperly
goes beyond the scope of its Request for interpretation.
32. We will then ask you to hear from Mr. Vaughan Lowe, Q.C., who will explain why the
Court should dismiss Mexico’s Application as an abuse of process.
33. Finally, I will make a closing presentation on behalf of the United States, in which I will
explain that the provisional measures requested by Mexico go beyond the scope of the rights
asserted by Mexico in its Request for interpretation.
34. I would now ask that the Court call upon Mr. Mathias. Thank you, Madam President and
Members of the Court.
The PRESIDENT: Thank you, Mr. Bellinger. I now call upon Mr. Mathias.
MMAr. HIAS:
There is no dispute regarding the interpretation Mexico seeks
1. Thank you, Madam President. Madam President, Members of the Court, it is an honour to
appear again before the Court on behalf of the United States. - 19 -
2. My task this afternoon is to examine the Request for interpretation filed by the
Government of Mexico and to consider whether, as a threshold matter, it identifies a dispute within
the meaning of Article 60 of the Statute and of th e Court’s jurisprudence appropriate for resolution
by the Court.
3. The existence of a dispute is a fundamental requirement. The Court made this point most
clearly in the Nuclear Tests cases, where it said that “the existence of a dispute is the primary
condition for the Court to exercise its judicial function” ( Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974 , p.270, para.55; Nuclear Tests (New Zealand v. France),
9
Judgment, I.C.J. Reports 1974 , p.476, para.58) . Where, as in those cases, the dispute
disappeared, or, as in this case, there is no dis pute from the outset, “all the necessary consequences
10
must be drawn from this finding” (id.) .
4. This must be so. Article 38 of the Statute states that the function of the Court “is to decide
in accordance with international law such disputes as are submitted to it”. Article60, invoked as
the basis of jurisdiction by Mexico in this case, pr ovides that “[i]n the event of a dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the request of any party”. If
there is no dispute, or no dispute of the type identified in Article 60, there is no basis for the Court
to exercise its judicial function in this matter. If there is no dispute, there exists no basis for prima
facie jurisdiction, and no basis for the indication of provisional measures. And indeed, the case
should be removed from the List, as without object, and because of a manifest lack of jurisdiction.
5. Let us then consider what is a dispute, since that question is dispositive in this case.
A. The nature of a “dispute” in the Court’s jurisprudence
6. As this Court is well aware, the Perman ent Court provided what has become the accepted
definition of “dispute” in the Mavrommatis case, defining that term to mean “a disagreement on a
point of law or fact, a conflict of legal views or of interests between two persons” (Mavrommatis
11
Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11) . That definition,
9
French text: “L’existence d’un différend est donc la condition première de l’exercice de sa fonction judiciaire.”
10French text: “il faut en tirer les conséquences qui s’imposent”.
11French text: “Un différend est un disaccord sur un point de droit ou de fait, une contradiction, une opposition
de thesès juridiques ou d’intérêts entre deux personnes.” - 20 -
with little variation, has been repeatedly reaffirmed in a long line of cases. In its 2005 Judgment in
the Certain Property case involving Liechtenstein and Germany, the Court referred to those many
cases as constituting “the consistent jurisp rudence of the Court” on this matter (Certain Property
(Liechtenstein v. Germany), Preliminary Objections , Judgment, I.C.J. Reports 2005, p.18,
para.24). Only eight months ago, in its J udgment in the boundary case involving Nicaragua and
Honduras, the Court again quoted this “w ell-established definition” from the Mavrommatis case
with approval (Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 130).
7. In applying this simple definition as it has so many times, the Court has had occasion to
articulate several related principles that are of critical importance to this case. First, the Court has
made it very clear that a party’s own characterizati on of whether a dispute exists is not dispositive.
In its 1962 Judgment in the South West Africa cases, the Court stated this principle in the following
terms:
“[I]t is not sufficient for one party to a contentious case to assert that a dispute
exists with the other party. A mere asserti on 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. Nor is it adequate to show that the interests of the two parties to such a
case are in conflict. It must be shown that the claim of one party is positively opposed
by the other.” (South West Africa Cases (Ethiopia v. South Africa; Liberia v.
12
South Africa), Preliminary Objections, Judgment I.C.J. Reports 1962, p. 328.)
As with other fundamental principles, this one t oo has been repeatedly reaffirmed by the Court,
most recently in its Judgment six months ago in the preliminary objections phase of the boundary
case involving Nicaragua and Colombia (Territorial and Maritim e Dispute (Nicaragua v.
Colombia), Preliminary Objections, Judgment of 13 December 2007, para. 138).
8. Closely associated with this principle is another. The Court has often reiterated that
whether a “dispute” exists is “a matter for objectiv e determination”, as the Court put it in its 1950
Peace Treaties Judgment (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
12French text:
“il ne suffit pas que l’une des parties à une afcontentieuse affirme l’existence d’un différend avec
l’autre partie. La simple affirmation ne suffit pas pour prouver l’existence d’un différend, tout comme le
simple fait que l’existence d’un différend est contene prouve pas que ce différend n’existe pas. Il
n’est pas suffisant non plus de dém ontrer que les intérêts des deux part ies à une telle affaire sont en
conflit. Il faut démontrer que la réclamation de l’ une des parties se heurte à l’opposition manifeste de
l’autre.” - 21 -
First Phase, Advisory Opinion, I.C.J. Reports 1950, p.74). In short, it is not for one party to
determine the existence of a dispute, but rather “it falls to the Court to determine whether ‘the
claim of one party is positively opposed by the other’” (Certain Property (Liechtenstein v.
Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005 , p.18, para.24; French text:
“la Cour doit rechercher si ‘la réclamation de l’une des parties se heurte à l’opposition manifeste de
l’autre.’”)13.
B. “Dispute as to the meaning or scope of the judgment”
9. In an interpretation case, the character of the “dispute” required to establish the Court’s
jurisdiction is even narrower. Only a dispute “as to the meaning or scope of the judgment” can
satisfy the conditions of Article 60 of the Statute.
10. In the Continental Shelf case between Libya and Tunisia, the parties had requested the
Court to indicate “the principles and rules of international law applicable to the delimitation” of the
area of the continental shelf (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. 47; French text:
“les principes et règles du droit international appli cables à la delimitation”). A dispute then arose
between the parties as to what, in the Continental Shelf Judgment, the Court had intended to accord
binding force (id., p. 217, para. 45). In particular, Tunisia disputed whether the Court had intended
to bind the parties to the particular boundary line and co-ordinates that the Court had specified in
the Judgment (id., pp.217-227, paras. 45-63). In the Continental Shelf (interpretation) case, the
Court cited the Chorzów Factory case for the proposition that the Court would entertain a dispute
entailing
“‘a difference of opinion between the Parties as to those points in the judgment in
question which have been decided with bi nding force’, including ‘A difference of
opinion as to whether a particular point has or has not been decided with binding
force.’” (Continental Shelf, supra , p.218, para. 46 (quoting Factory at Chorzów,
supra, pp. 11-12); French text: “‘divergence entre les Parties sur ce qui, dans l’arrêt
en question, a été tranch é avec force obligatoire’, y compris une ‘divergence de vues,
si tel ou tel point a été decide avec force obligatoire’”).
13
In Certain Property, the Court cited as evidence of a dispute its finding “that in the present proceedings
complaints of fact and law formulated by Liechtenstein against Germany are denied by the latter” (id., p. 19, para. 25). - 22 -
11. In rendering its Judgment in the Continental Shelf (interpretation) case, the Court
clarified which points in the original Judgment it had intended to be binding on the parties, and
which were intended to be “general indication[s]” (id., p.230, para. 69). In doing so, the Court
resolved a real dispute between those parties as to the nature of the Judgment in question, and it
paved the way for fruitful negotiations between Libya and Tunisia, which eventually resulted in the
establishment of the Libyan-Tunisian Joint Oil Company 14.
12. Let us consider whether there is a dis pute in this case, having freshly in mind the
Continental Shelf case as an example of a very real dispute.
C. There is no dispute between Mexico and the United States in this case
13. Under the Rules of Court, Article 98, para graph2, it is for Mexico to indicate “the
15
precise point or points in dispute as to the meaning or scope of the judgment” . Mexico addresses
this requirement in paragraph 52 of its Request for interpretation.
14. Mexico’s Request states: “The present dispute between Mexico and the United States
concerns the scope and meaning of the remedial obligation established in paragraph 153 (9) of the
Avena Judgment.” (Request for Interpretation of the Judgment of 31March2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v.
United States of America), 5 June 2008, para. 52.) Paragraph 153 (9) of the 2004 Avena Judgment
reads as follows:
“(9) By fourteen votes to one,
Finds 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 reconsid eration of the convictions and
sentences of the Mexican nationals refe rred to in subparagraphs (4), (5),
(6) and (7) above, by taking account both of the violation of the rights set
forth in Article 36 of the Convention and of paragraphs 138 to 141 of this
Judgment.” (Avena and Other Mexican Nationals (Mexico v. United
States of America), Judgment, I.C.J. Reports 2004 , p. 72, para.153(9).
French text: “(9) Par quatorze voix contre une: Dit que, pour fournir la
réparation appropriée en l’espèce, les Etats-Unis d’Amérique sont tenus
d’assurer, par les moyens de leur choix, le réexamen et la revision des
verdicts de culpabilité rendus et des peines prononceés contre les
14
Shabtai Rosenne, Interpretation, Revision and Other Recourse from Inter national Judgments and Awards, 108
(2007).
15
French text: “elle indique avec précision le point ou les points contestés quant au sens ou à la portée de l’arrêt.” - 23 -
ressortissants mexicains visés aux points (4 ), (5), (6) et (7) ci-dessus, en
tenant compte à la fois de la violation des droits prévus par l’article 36 de
la convention et des paragraphes 138 à 141 du présent arrêt.”)
15. Now the question becomes “what is the na ture of the dispute between Mexico and the
United States about the meaning of the paragraph that I just read?” Mexico in paragraph 52 of its
Request for interpretation sets forth its view: “Mexico unders tands the language in question to
establish an obligation of result, that is, to attain the precise result of review and reconsideration of
the convictions and sentences in accord ‘with paragraphs138 to 141 of [the Avena] Judgment’.”
(Request for Interpretation, supra, para. 52.) I will discuss this concept regarding an “obligation of
result” in a few moments, but the basic point of that sentence is that Mexico is of the view that the
United States is subject to a binding obligation to secure the “precise result” of review and
reconsideration consistent with paragraphs 138 to 141 of the Avena Judgment.
16. Paragraph59 of Mexico’s Request for interpretation , headed “The Interpretation
Requested”, is consistent with this understanding (id., para.59). This paragraph is in two parts.
The first part seeks a declaration by the Court th at the obligation under paragraph153(9) of the
Avena Judgment is an “obligation of result” and th at the United States must provide review and
reconsideration (id.). This repeats the point it made in paragraph52. The following part simply
states that the United States is under an obligation, first, to provide review and reconsideration and
second, to ensure that no covered Mexican national is executed unless and until review and
reconsideration is completed (id.).
17. If, as we understand from the foregoing, Mexi co’s interpretation is that the United States
is subject to a binding obligation to provide review and reconsideration, what is the position of the
United States?
18. The United States fully agrees. What the Agent of the United States has just informed
the Court on this subject is definitive. It is fully consistent with pr evious pronouncements and
conduct of the United States relating to the Avena Judgment.
19. In fact, Mexico has acknowledged that the United States agrees with its position and it
stated as follows in its Request for Interpretation:
“All competent authorities of the United States government at both the state and
federal levels acknowledge that the Unite d States is under an international law - 24 -
obligation under Article 94(1) of the U.N. Charter to comply with the terms of the
Judgment.” (Id., para. 13.)
20. The President of the United States, the Supreme Court of the United States, have both
affirmed that understanding: they have c onsistently referred to compliance with the Avena
Judgment as an “international obligation” 16. And there can be no confusion about the scope and
meaning of that obligation. In its June2007 brief to the United States Supreme Court in
Medellin v. Texas, the United States affirmed ⎯ clearly, simply, straightforwardly ⎯ that “the ICJ
decision in Avena has ‘binding force’, and the United States has an international law obligation to
‘comply with the decision’ by providing judici al review and reconsideration to 51Mexican
17
nationals” .
21. Let us return now to Mexico’s contenti on that there is a dispute between the United
States and Mexico over whether the relevant paragraph of the Avena Judgment creates an
“obligation of result” or merely one of “means”.
22. We look to Mexico’s Request for Interpretation for precisely what it means by “result”
and “means” in this context. Mexico defin es the United States “obligation of result” as a
requirement that the United States provide “revie w and reconsideration of the convictions and
sentences” through a “means of its own choosing” (par a.59). It elaborates on this “obligation of
result” as follows:
“While the United States may use ‘means of its own choosing’, the obligation to
provide review and reconsideration is not contingent on the success of any one means.
Mexico understands that in the absence of full compliance with the obligation to
provide review and reconsideration, the Un ited States must be considered to be in
breach.” (Id., para. 5.)
By use of the phrase “obligation of means”, Mexico appears to suggest that the United States
believes that it is obliged only to attempt to comply with the Judgment, rather than to actually
provide the required review and reconsideration.
16The State of Texas has also affirmed this obligation in its briefing before the Supreme Court, stating: “To be
sure, Texas recognizes the existence of aninternational obligation to comply ith the United States’s [sic] treaty
commitments” and more specifically, “[n] obody disputes that the Unit ed States has an international law obligation to
satisfy Avena”. Brief for Resp. in Medellin v. Texas , 128 S. Ct. 1346 (2008), pp.12, 46 (available at
http://www.debevoise.com/publications/pdf/TexasrespondentsbriefMedellin…).
17Brief for United States aAmicus Curiae in Medellin v. Texas, 128 S. Ct. 1346 (2008), p.8 (available at
http://www.usdoj.gov/osg/briefs/2006/3mer/1ami/2006-0984.mer.ami.pdf). - 25 -
23. Let us be quite clear. What Me xico calls an “obligation of result” ⎯ that the United
States is subject to a binding obligation to provide review and reconsidera tion of the convictions
and sentences of the relevant persons ⎯ is precisely the interpretation that the United States holds
concerning the paragraph in question. Madam Pres ident, Members of the Court, when the Court
examines whether the Parties’ interpretations of paragraph153 (9) are “positively opposed”, we
submit that the answer must be “no”.
24. Mexico suggests, however, that “[t]he conduct of the United States... confirms the
understanding that paragraph 153 (9) imposes only an obligation of means”, and it makes the point
that “[h]aving chosen to issue the President’s 20 05 determination directing state courts to comply,
the United States to date has taken no further action” (id., para. 57).
25. With due respect to Mexico, as the Agen t of the United States has just set forth in
considerable detail, Mexico’s characterization of the United States actions since the President’s
2005Memorandum is profoundly in error. The United States continues in its efforts to comply
with the Avena Judgment. Moreover, I must note that it is the nature of an interpretation case that
the dispute be over that, interpretation, and not the conduct of one of the parties. It is the position
of the Parties concerning interpretation of the Judgment that the Court must find to be in dispute.
And the United States has made its position on the obligations under the Avena Judgment clear at
every turn. How can it be said that the Unite d States does not accept the obligation to provide
review and reconsideration wh en numerous and consistent au thoritative statements of the
UnitedStates position, including positions taken outside these proceedings, as well as explicit
statements made before this Court today, clearly establish the contrary?
26. While it is true that the United States ⎯ because of the structure of its Government and
its domestic law ⎯ faces substantial obstacles in im plementing its obligation under the Avena
Judgment, it has clearly accepted that the obligatio n to provide review and reconsideration is an
obligation of result and it has sought to achieve that result.
D. Mexico itself has recognized that issue is enforcement, not interpretation
27. In fact, as the Agent of the United States just described, the United States is continuing
its efforts to implement the Court’s Judgment. The United States has sought to keep Mexico - 26 -
informed as to the efforts it has been making in this regard. The United States has informed
Mexican officials of its view that further litigati on in this Court would hinder, rather than help,
those efforts. Now that is part of the political background of the case, but it is right that the Court
should be aware of it because it is an important el ement of the approach of the United States to the
implementation of its obligations under the Avena Judgment.
28. In the correspondence between the United States and Mexico relating to the Avena
Judgment, there is no suggestion of any dispute over the interpretation of the Judgment. The
entirety of communications from Mexico relating to the Avena Judgment, communications which
include a diplomatic Note, letters, and court f ilings, confirms that the issue between the two
countries has been ⎯ not one of a difference over interpretation ⎯ but rather the question of
enforcement of the Judgment. These communicati ons demonstrate a disappointment on the part of
Mexico with the difficulties that the Un ited States has faced in implementing the Avena Judgment,
but there is no indication of a disagreement betwee n the Parties as to the interpretation of that
Judgment. In its diplomatic Note of 28 March 2008, for example ⎯ and this appears at tab 6 in the
judges’ folder ⎯ the Government of Mexico expressed concern that the Supreme Court’s holding
18
in Medellin would render this Court’s mandate in Avena “ineffective” . The Mexican Ambassador
to the United States wrote a 7 May 2008 article ⎯ and this appears at tab 8 in the judges’ folder ⎯
stating that “Mexico acknowledges President Bush’s efforts to ensure that the United States ‘will
discharge its internationa l obligations’” under the Avena Judgment, but that Mexico was
disappointed with the Medellin decision and that “the ruling has produced the destabilizing paradox
of a decision that is binding under internati onal law but that... is unenforceable without
congressional action” 19. As AmbassadorHernández García, Legal Adviser to the Mexican
Ministry of Foreign Affairs and Agent in these proceedings, stated in a 24 April 2008 declaration to
the United States District Court in Texas ⎯ this appears at tab 9 of your folder:
“enforcement of the Avena Judgment has been and continues to be a top priority of the
Mexican government in its bilateral relations with the United States. Both the
executive and legislative branches in Mexico have confirmed Mexico’s commitment
18
Diplomatic Note from the Embassy of Mexico to the United States Department of State, 28 March 2008.
1Arturo Sarukhan, “Why enforcing the Vienna Convention makes sense”, Dallas Morning News, 7 May 2008. - 27 -
to achieving full compliance with the Interna tional Court of Justice’s decision by any
and all means necessary.” 20
Ambassador Hernández García atta ched to this declaration resolutions from the Senate and the
Chamber of Deputies in Mexico, both calling on the Mexican Government to undertake all
measures to ensure enforcement of Avena . The Senate resolution, dated 26 March 2008, “requests
the Ministry of Foreign Affairs to urgently carry out all diplomatic actions and to exhaust all legal
remedies before US authorities and internationa l bodies, in order to enforce the ruling of the
21
International Court of Justice . . .” .
29. As recently as 3 June2008, two days before Mexico filed this Request,
AmbassadorHernándezGarcía sent a letter to the United States Department of State Legal
Adviser–– this is at tab10 of the judges’ folder–– noting that “the Government of Mexico
appreciates the good-faith and constructive efforts undertaken by the Administration to meet our
concerns” and — more importantly for the purpo ses of our proceeding — noting the United States
“recognition of the ICJ’s decision as an indisputable legal obligation” 22. The letter from
Ambassador Hernández García highlighted, howev er, the “additional ways and means” that the
Government of Mexico believed the United Stat es should undertake in order “to achieve full
compliance with the Avena Judgment”, setting forth a particul ar course of conduct that Mexico
23
wanted the United States to follow . The letter further stated that a commitment by the United
States to undertake the actions as described “would forestall Mexico’s return to the ICJ at this
juncture” 24.
20Declaration of Ambassador Joel Antonio Hernández García , Legal Adviser of the Mexican Ministry of Foreign
Affairs, 24April2008, filed with Motion to Reopen and Extend Stay in Medellín v. Quarterman , Civil Action
No. H-06-3688, United States District Court for the Southern District of Texas.
21Resolution from the Mexican Senate, 26 March 2008, attached to declaration of Ambassador Hernández García.
22Letter of Ambassador Joel Antonio Hernández García, Legal Adviser to the Mexican Ministry of Foreign
Affairs, to John Bellinger, III, Legal Adviser to the United States Department of State, 3June2008. See also Press
Release, Mexican Ministry of Foreign Affairs , “United States Supreme Court Issu es Ruling in the Case of Mexican
National Jose Ernesto Medellin Rojas, Sentenced to Death in the State of Texas,” 25March2008 (stating that “Mexico
will continue to pursue all available means to ensure that the rights of the 51 Mexican nationals included inAvena
judgment are fully respected.”); Press Release , Mexican Ministry of Foreign Affairs , “Mexico Seeks Implementation of
the International Court of Justice’s Avena Judgment Before a Texas Court”, 5 May 2008.
23
Id. In particular, the Government of Mexico requested that letters be sent to both the Governor of Texas and the
Texas Board of Pardons and Paroles, specif ically requesting “a reprieve of at least 300 days of Mr. Medellin’s execution
date in order to explore the full feasib ility of advancing im plementing legislation in the United States Congress and/or
State Legislature”, id.
24Id. - 28 -
30. None of these communications address questions involving interpretation of the Avena
Judgment. Rather they centre on what Mexico has called a “top priority”, what might be regarded
as the “real purpose” of Mexico’s Request here today, namely enforcement of the Avena Judgment.
The communications between the United States and Mexico are about implementation, not
interpretation. They lend no support to the propositi on that there is a dispute between Mexico and
the United States concerning the interpretation of the Judgment. Quite the contrary.
E. Mexico cannot request relief outside the scope of Avena
31. Thus, Mexico has failed to identify a dispute between itself and the United States over
the interpretation of paragraph 153 (9).
32. Now it may be that Mexico has a preferen ce as to the particular means that the United
States might employ in complying with Avena. It may be, as just noted, that Mexico is
disappointed with the fact that the United States has, until this time, been unable to achieve full
enforcement of the Judgment. It may be that Mexico is disappointed that a judgment of this Court
is not ⎯ under United States domestic law ⎯ directly enforceable in United States courts. But that
does not mean that there is a dispute between Mexico and the United States as to the international
legal obligation under Avena. The manner in which the international law obligation created by the
Avena Judgment is implemented by the United States in its domestic law does not ⎯ and cannot ⎯
create a dispute as to the nature of our internati onal law obligation, an obligation that the United
States has accepted.
33. This Court has made clear that the “real purpose” of a request for interpretation under
Article60 of the Statute “must be solely to obtai n clarification of the meaning and the scope of
what the Court has decided with binding force, a nd not to obtain an answer to questions not so
decided” (Request for Interpretation of the Judgment of 20November1950 in the Asylum Case
25
(Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402) . From this it follows that the request
must be bounded by that Judgment itself. In the Asylum (interpretation) case, the Court plainly
recognized that “[i]nterpretation can in no wa y go beyond the limits of the Judgment” and it
2French text: “ce qui signifie qu’elle doit viser uniquement à faire éclaircir le sens et la portée de ce qui a été
décidé avec force obligatoire par l’arrêt, et non à obtenir la solution de points qui n’ont pas été ainsi décidés”.
See also
Interpretation of Judgments Nos.7 and8 (Factory at Chorzów), Judgment No.11, 1927, P.C.I.J., SeriesA, No.13,
pp. 10-11. - 29 -
rejected Colombia’s request for interpretation in that case because “[i]n reality, the object of the
questions submitted by the Colombian Government [was] to obtain, by the indirect means of
interpretation, a decision on questions which th e Court was not called upon by the Parties to
26
answer” ( Asylum case, supra, p.403) . In its 1985 Judgment in the Continental Shelf
(interpretation) case, the Court confirmed that an Article60 request must be limited to a
clarification of the underlying Judgment’s meani ng and scope, and stated that “[s]o far as the
Tunisian request for interpretation may go further, and seek ‘to obtain an answer to questions not
so decided’, or to achieve a revision of the Judgment, no effect can be given to it” ( Application for
Revision and Interpretation of the Judgment of 24February1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
27
Judgment, I.C.J. Reports 1985, p. 223, para. 56) .
34. As Professors Zimmerman and Thienel have written in their commentary concerning
Article 60, “[s]ince the Court is . . . bound by the limits of its previous judgment, it cannot take into
account facts not discussed in the original proceedings nor any development that took place after
the original judgment” 28.
35. Finally, as the Court noted in the Haya de la Torre case, the Court is not in a position to
determine how the parties before it must implement its judgments, as
“these courses are conditioned by facts and by possibilities which, to a very large
extent, the Parties are alone in a position to appreciate. A choice amongst them could
not be based on legal considerations, but onl y on considerations of practicability or of
political expediency; it is not part of th e Court’s judicial function to make such a
29
choice.” (Haya de la Torre (Colombia/Peru), Judgment, I.C.J. Reports 1951, p. 79.)
26
French text: “L’interprétation ne saurait en aucun cas dépasser les limites de l’arrêt”... “En réalité, les
questions posées par le Gouvernem ent de la Colombie tendent à obtenir, par la voie indirecte d’un arrêt interprétatif, la
solution de questions dont la Cour n’a pas été saisie par les Parties en cause.”
27
French text: “Dans la mesure où la demande en interpréta tion tunisienne irait plus loin et chercherait ‘à obtenir
la solution de points qui n’ont pas été ainsi décidés’ ou à aboutir à une revision de l’arrêt, aucune suite ne pourrait lui être
donnée.”
28
Andreas Zimmerman and Tobias Thienel, Article60, in The Statute of the International Court of Justice:A
Commentary, 1283 (Andreas Zimmerman et. al., eds., 2006); see also Manley O. Hudson, The Permanent Court of
International Justice 1920-1942: A Treatise, at 591, §537 (“In giving an interpretation, the Court considers no facts other
than those considered in the judgment under interpretation.”).
29French text:
“ces voies sont conditionnées par des éléments de fa it et par des possibilités que, dans une très large
mesure, les Parties sont seules en situation d’apprécier. Un choix entre elles ne pourrait être fondé sur des
considérations juridiques, mais se ulement sur des considérations denature pratique ou d’opportunité
politique ; il ne rentre pas dans la fonction judiciaire de la Cour d’effectuer ce choix.” - 30 -
F. Conclusion
36. Madam President, Members of the Court, I conclude with a brief summary.
37. The United States has affirmed its obligation to comply with paragraph153(9) of the
Court’s Avena Judgment by providing review and reconsid eration of the convictions and sentences
of the relevant individuals.
38. Thus, there is no dispute between the Parties as to the nature of the obligation set forth in
that paragraph of the Avena Judgment.
39. To the extent that Mexico is seeking enforcement of the Avena Judgment, this is outside
the meaning or scope of the Avena Judgment and is not an appropriate request for interpretation
before the Court in these proceedings.
40. The question now before the Court is what are the consequences for this proceeding of
the fact that Mexico has failed to identify a dispute within the meaning of the Court’s jurisprudence
and the requirements of Article 60?
41. Mr.Thessin will address that question an d, Madam President, I ask that you call upon
him at this time. I thank the Court for its attention.
The PRESIDENT: Thank you, Mr. Mathias, and I now call upon Mr. Thessin.
TMHE.SSIN:
The Court should not indicate provisional measures
1. Madam President, Members of this Court, good afternoon. I am honoured to appear again
before this Court on behalf of the United States.
2. As Mr.Mathias has just explained, there is no dispute between the United States and
Mexico on the issues raised by Mexico’s Request for an interpretation of the Court’s Judgment in
Avena. The absence of a dispute has legal consequences for Mexico’s Request for provisional
measures at this stage of the proceedings, which I will address in my presentation. I will show that,
because Mexico has not shown that there exists a dispute requiring interpretation, this Court has no
basis to indicate provisional measures in support of that claim. This conclusion builds directly
upon the Court’s jurisprudence with respect to th e indication of provisional measures, as well as
upon broader doctrines in the Court’s cases related to the concept of mootness. - 31 -
3. The purpose of this Court ⎯ indeed, the purpose of any court ⎯ is to decide disputes. In
the absence of a dispute, there is nothing for th e Court to adjudicate and no consequence to its
decisions. This Court’s cases, both in respect of provisional measures and in addressing claims at
the merits stage of proceedings, have emphasized the importance of this principle. The Court has
consistently declined to entertain claims where there was no real issue in dispute or where it
otherwise believed that acting on such claims would be without object or purpose.
4. I will use my presentation to discuss the app lication of these principles in the Court’s case
law and to demonstrate that they compel the conclusion that the Court should deny Mexico’s
Request for provisional measures. In setting out this argument, my presentation will address three
main points. First, as the Court’s cases on provis ional measures show, in the absence of a dispute
about Mexico’s claim on the merits, no prima faci e jurisdiction exists for Mexico’s Request for
provisional measures. Accordingly the Court should not indicate provisional measures in
connection with the claim. Second, under principles applicable more broadly under the Court’s
jurisprudence, the absence of a dispute renders Mexico’s claim on the merits moot and without
object. Third, the absence of a dispute about Mexico’s claim on the merits distinguishes this case
from the Court’s previous cases involving the Vi enna Convention on Cons ular Relations. The
factors that persuaded the Court to indicate provisional measures in those cases are not present
here.
5. We submit that these points should compel the conclusion that Mexico’s Request for
provisional measures should be denied.
6. Before proceeding to these three points, I have one initial observation. This Court has
characterized its authority to indicate provisional measures as an “exceptional power” (Aegean Sea
Continental Shelf, Interim Protection, Order of 11 September 1976 , I.C.J. Reports 1976 , p.11,
para.32). Parties before the Court are not entitled as a matter of right to the indication of
provisional measures. Rather, the Court indicates such measures only as a matter of discretion and
only when it is persuaded that they are necessary and appropriate in suppor t of its ability to carry
out its judicial function. As I will demonstrate, Mexico’s Request does not present such a case.
7. Instead, Mexico has made an unprecedented request for provisional measures. This Court
has never before indicated provisional measures in connection with proceedings requesting the - 32 -
interpretation of a prior judgment. Unlike the s ituation in cases involving other types of claims on
the merits, the parties before the Court in a case for interpretation are already bound by a final
judgment of the Court from a prior proceeding. In addressing the admissibility of requests for
interpretation, the Court has stres sed the need for it to proceed cautiously “to avoid impairing the
finality, and delaying the implementation” of the Court’s judgments ( 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, p. 36, para. 12). Accordingly, when the Court considers whether to
grant provisional measures in connection with the current Request for interpretation , the Court
enters new territory and must ensure that Mexico has shown a clear jurisdictional basis for its
Request.
A. Because there is no dispute in Mexico’s claim on the merits, there is no jurisdiction, prima
facie, for the indication of provisional measures
8. I will now address the first of my points, and consider Mexico’s Request through the
prism of the Court’s jurisdiction on the indication of provisional measures. I will show that, in the
absence of a genuine dispute on the issues raised by Mexico’s claim on the merits, this Court lacks
prima facie jurisdiction to indicate provisional measures in support of that claim.
9. It is well established in the Court’s case law that it may indicate provisional measures only
where jurisdiction exists, prima facie, over the ap plicant’s claim on the merits. As the Court has
stated on a number of occasions:
“[I]n dealing with a request for provisional measures, the Court need not finally
satisfy itself that it has jurisdiction on the merits of the case, but [it] will not indicate
such measures unless the provisions invoked by the applicant appear, prima facie, to
afford a basis on which the jurisdiction of the Court might be established.” ( Pulp
Mills on the River Uruguay (Argentina v. Uruguay), Request f30 Provisional
Measures, Order of 13 July 2006, I.C.J. Reports, p. 158, para. 57.)
30
French text:
“lorsqu’elle est saisie d’une demande en indication de mesures conservatoires, la Cour n’est pas tenue de
s’assurer de manière définitive qu’el le a competence quant au fonl’affaire, mais qu’elle ne peut
indiquer ces mesures que si les dispositions invoquées par le demandeur semblent prima facie constituer
une base sur laquelle [s]a compétence . . . pourrait être fondée”. - 33 -
10. This doctrine serves to ensure that the Court does not exercise its “extraordinary powers”
to indicate provisional measures in cases that are ultimately likely to be dismissed on other
grounds.
11. To establish prima facie jurisdiction when the case on the merits arises under Article 60,
Mexico must do more than identify a prior judgm ent of the Court and make a questionable claim
that some disagreement exists over it. Were mere allegations of dispute sufficient in an
interpretation case to establish jurisdiction to sup port an indication of provisional measures, the
prima facie jurisdiction test would be a hollow fo rm that any party could satisfy merely through
artful pleading 31.
12. Instead, the Court has required that a party seeking provisional measures must also
demonstrate that its claim on the merits is capable of falling within the provisions of the instrument
that it invokes as the basis for the Court’s jurisdiction over that claim. In this regard, the Court has
declined to indicate provisional measures where the parties have failed to establish a nexus between
the instrument they invoke to engage the Court’s ju risdiction and the rights that are subject to their
claims on the merits. In this case seeking an in terpretation under Article 60, Mexico must make an
affirmative showing that there is a nexus with Ar ticle60, that a genuine dispute exists about the
meaning or scope of the Avena Judgment.
13. This requirement is illustrated by th e Court’s disposition of provisional measures
requests in the case concerning the Legality of Use of Force between Yugoslavia and Belgium and
in the case concerning Armed Activities on the Territory of the Congo between the Congo and
Rwanda.
14. In the case concerning Legality of Use of Force, the Court dismissed Yugoslavia’s
request for provisional measures against Belgium. It did so even though it found that Yugoslavia’s
See also Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures,
Order of 8 December 2000, I.C.J. Reports 2000, p. 250, para. 67; Land and Maritime Boundary between Cameroon and
Nigeria, Provisional Meas ures, Order of 15 March 1996, I.C.J. Reports 1996 (I) , p. 21, para. 30United States
Diplomatic and Consular Staff in Tehran (United Statesv. Iran) Provisional Measur es, Order of 15 December 1979 ,
I.C.J. Reports 1979, p. 13, para. 15; Fisheries Jurisdiction (Fed eral Republic of Germany v. Iceland), Interim
Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 33, para. 15.
31A proceeding on interpretation under Article 60 is potentially the only jurisdictional basis for Mexico to come
before this Court on a matter involving the Vienna Conve ntion on Consular Relations. The United States, on
7 March 2005, withdrew from the optional protocol to the Vienna Convention on Consular Relations. - 34 -
claim on the merits under the Genocide Convention appeared to provide at least a potential basis of
jurisdiction for Yugoslavia’s claim on the merits.
15. The Court began its analysis by obser ving that both Yugoslavia and Belgium were
parties to the Genocide Convention without reservation, and thus concluded that the Genocide
Convention
“appear[ed] to constitute a basis on which the jurisdiction of the Court might be
founded to the extent that the subject-matter of the dispute relates to ‘the
interpretation, application or fu lfilment’ of the Convention” ( Legality of Use of Force
(Yugoslavia v. Belgium), Provi32onal Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 137, para. 37) .
16. But the conclusion that the Genocide Convention might provide a basis for this Court to
consider the merits of Yugoslavia’s claim did not end this Court’s analysis as to whether prima
facie jurisdiction existed to support the indication of provisional measures. Instead, the Court
looked further. It considered
“whether the breaches of the Convention alleged by Yugoslavia are capable of falling
within the provisions of that instrument a nd whether, as a consequence, the dispute is
one which the Court has jurisdiction ratione materiae to entertain . . .” (id. p.137,
33
para. 38) .
The Court observed in this regard that “in orde r to determine, even prima facie, whether a
dispute... exists, the Court cannot limit itself to noting that one of the Parties maintains that the
34
Convention applies while the other denies it” (id.) .
17. The Court then reviewed Yugoslavia’s specific claims with respect to Belgium’s conduct
against the relevant provisions of the Genocide Convention. On the basis of this review, the Court
concluded that it was “not in a position to find, at this stage of the proceedings, that the acts
imputed to [Belgium] are capable of coming with in the provisions of the Genocide Convention”
and that the Convention “cannot accordingly consti tute a basis on which the jurisdiction of the
32French Text: “semble ainsi constituer une base sur laquelle la compétence de la Cour pourrait être fondée, pour
autant que l'objet du différend ait trait à “l'interprétation, l'application ou l'exécution” de la convention”.
33French Text: “si les violations de la convention alléguées par la Yougoslavie sont susceptibles d'entrer dans les
prévisions de cet instrument et sipar suite, le différend est de ceux dot la Cour pourrait avoir competence pour
connaître ratione materiae par application . . .”.
34French Text: “Considérant que, a l'effet d'établir, même prima facie, si un différend . . . existe, la Cour ne peut
se borner à constater que l'une des parties soutient que la convention s'applique alors que l'autre le nie”. - 35 -
Court could prima facie be founded” ( id., para. 41) . Accordingly, the Court declined to indicate
provisional measures.
18. The Court followed a similar approach in the case concerning Armed Activities on the
Territory of the Congo. In that case, the Congo asserted claims against Rwanda under a number of
multilateral conventions and asked the Court to issue provisional measures in support of its claims.
19. In addressing the Congo’s request for provisional measures, the Court considered each of
its claims against the various instruments invoke d by the Congo and in each case assessed whether
the instrument provided a basis on which the Court could indicate provisional measures. In some
cases the Court concluded that the instruments i nvoked by the Congo could not provide a basis for
the Court’s jurisdiction, even at the merits stag e, because Rwanda was not a party to the relevant
instrument, or that preconditions to the Court’s seisin had not been satisfied ( Armed Activities on
the Territory of the Congo (New Applicati on: 2002) (Democratic Republic of the Congo v.
Rwanda), Provisiona1 Measures, Order of 10 July 2002, I.C.J. Reports 2002 , pp.241-248,
paras. 57-82) .
20. However, in a case of another instrument , the Unesco Constitution, the Court concluded
that jurisdiction appeared to exist to address a ppropriate disputes between the parties arising under
that instrument. But, as in the Yugoslavia v. Belgium case, the Court did not view this conclusion
by itself as a sufficient basis to indicate provisiona l measures. Instead, the Court looked further
and proceeded to consider whether the Congo’s claim under the Unesco Constitution bore
sufficient relationship to rights provided in that Constitution so as to serve as a basis on which to
indicate provisional measures.
21. On this point, the Court observed that the Unesco Constitution provided jurisdiction only
for the Court to address disputes “in respect to the interpretation of that Constitution” and that such
a dispute “[did] not appear to be the object of Congo’s Application” (id., para. 85). Accordingly,
the Court concluded that it could not indicate pr ovisional measures in connection with the Congo’s
claim under that instrument (id.).
3French Text: “n’est dès lors pas en mesure de conclure, à ce stade de la procédure, que les actes que la
[Belgium] seraient susceptibles d'entrer da ns les prévisions de la c onvention sur le génocide . . . ne constitue partant pas
une base sur laquelle la competence de la Cour pourrait prima facie être fondée dans le cas d'espèce”. - 36 -
22. As in the Legality of Use of Force (Yugoslavia v. Belgium) case and the Congo v.
Rwanda case, Mexico’s Request must fail because its claim on the merits falls, in essence, outside
the subject-matter afforded by the instrument on which it is based. Mexico’s claim is founded on
Article 60 of the ICJ Statute, which requires the existence of a dispute before the Court can render
an interpretation. As Mr.Mathias explained in detail, the United States does not dispute the
interpretation of the Avena Judgment that Mexico asks this Court to render. The United States
fully accepts that the Avena Judgment imposes a binding obligation of result on the United States to
provide review and reconsideration of the convictions and sentences of the individuals addressed in
that Judgment.
23. In the absence of a dispute with respect to issues raised by Mexico’s Request for
interpretation, that claim is not capable of falling within the provisions of Article 60. Accordingly,
as the Court put it in the Legality of Use of Force (Yugoslavia v. Belgium) case, the Court lacks
jurisdiction ratione materiae to entertain Mexico’s Request for interpretation; Mexico’s Request
does not state a claim on which the Court will be able to grant relief at the merits stage. Under
these circumstances, the Court lacks the prima f acie jurisdiction required for the indication of
provisional measures, and the Court should therefore dismiss Mexico’s Request.
B. Because there is no dispute in Mexico’s claim on the merits, the claim is moot and any
relief granted would be without object
24. To this point, I have addressed Mexico’s claim in the context of the Court’s cases
relating to the indication of provisional measures. Let me now turn to my second main point and
discuss the Court’s more general jurisprudence that also has relevance to the appropriate treatment
of Mexico’s Request. In this connection, a gene ral principle runs throughout the Court’s cases that
the Court should abstain from addressing matters in the absence of a judicial purpose for its
actions. As Shabtai Rosenne has observed in hi s treatise on the practice of law, the Court has
abstained from rendering decisions where its actions would have no practical significance or where
36
the case has been made abstract or purely academic . This general principle is illustrated in cases,
such as the Nuclear Tests cases and in the Northern Cameroons case, where the disputes became
36
Shabtai Rosenne, The Law and Practice of the International Court 1920-2005, 534 n.73 (2006). - 37 -
essentially moot or where the Court’s decision would have had no practical effect. These cases
provide further support for the proposition that, in the absence of a dispute to be resolved by the
Court with respect to Mexico’s claim on the merits, it would be inappropriate for the Court to grant
relief, including provisional measures, in respect to that claim.
tO2n5. Nuclear Tests cases, Australia and New Zealand asserted that the continued
conduct by France of atmospheric nuclear tests would violate international law. The Court
observed that, subsequent to the filing of these applications, France made a public declaration that
it would cease further atmospheric nuclear testi ng, and concluded that, in doing so, France
undertook a binding international legal obligation to comply with its pledge. The Court stated that,
“having found that the Respondent has assumed an obligation as to conduct . . . no further judicial
action is required” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p.252,
37
para. 56) . The Court thus declined to adjudicate the merits, stating, “the present case is one in
which ‘circumstances that have... arisen rende r any adjudication devoid of purpose’... The
Court therefore sees no reason to allow the continuance of proceedings which it knows are bound
38
to be fruitless.” (Id., para. 58.).
26. The principle that the Court should not issue orders that would be without object is
firmly rooted in the Court’s unders tanding of its role as a judicial institution, as demonstrated by
the Northern Cameroons case. In that case, Cameroon asked th e Court for a declaration that the
United Kingdom had violated the Trusteeship Agr eement for the Territory of the Cameroons in
connection with its administration of that territo ry as trustee. The Court noted, however, that
subsequent to the filing of the Cameroons case, the Trusteeship Agreement had been validly
terminated by the United Nations General Assemb ly and that the United Kingdom had no further
role under authority under that agreement. B ecause Cameroon’s request sought only declaratory
relief, the Court concluded that a proceeding to consider Cameroon’s claim would serve no
purpose.
37French text: “ayant conclu que le défendeur a assuune obligation de comportement . aucune autre action
judiciaire n’est nécessaire”.
38French text: “La présente affaire est l’une de celles dans lesquelles ‘les circonstances qui se sont produites . . .
rendent toute decision judiciaire sans objet. La Cour ne voit donc pas dede laisser se poursuivre une procédure
qu’elle sait condamnée à rester stérile.” - 38 -
27. The Court grounded its decision in its basi c role and purpose as a judicial institution.
The Court wrote that:
“The function of the Court is to state the law, but it may pronounce judgment
only in connection with concrete cases where there exists at the time of the
adjudication an actual controversy involving a conflict of legal interests between the
parties. The Court’s judgment must have some practical consequence in the sense that
it can affect existing legal rights or obligations of the parties, thus removing
uncertainty from their legal relations. No judgment on the merits in this case could
satisfy these essentials of the judicial function.” (Northern Cameroons (Cameroon v.
United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963 ,
pp. 33-34.) 39
28. Later in the decision, the Court summed up its holding in the following terms:
“The Court must discharge the duty to which it has already called attention ⎯
the duty to safeguard the judicial function. Whether or not at the moment the
Application was filed there was jurisdiction in the Court to adjudicate upon the dispute
submitted to it, circumstances that have since arisen render any adjudication devoid of
purpose. Under these conditions, for the Court to proceed further in the case would
not, in its opinion, be a proper discharge of its duties.” (Id., p. 38.) 40
29. In addition, in the interpretation context, this Court has declined to entertain requests for
interpretation of its prior judgments where it believed that it had already ruled on the precise issues
raised by the request. In the case concerning the Land and Maritime Boundary between Cameroon
and Nigeria, the Court dismissed Nigeria’s request for in terpretation of the preliminary objections
Judgment (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. 49, para. 19). The Court
first emphasized the need to avoid impairing the finality of the Judgment as well as the primacy of
the principle of res judicata (id., para. 12). The Court then explained that, in its prior Judgment on
preliminary objections, it had clearly disposed of the questions on which Nigeria was seeking
39French text:
“La fonction de la Cour est de dire le droit, mais elle ne peut rendre des arrêts qu'à l'occasion de
cas concrets dans lesquels il existe, au moment du jugement, un litige réel impliquant un conflit d'intérêts
juridiques entre les parties. L'arrêt de la Cour doit avoir des conséquences pratiques en ce sens qu'il doit
pouvoir affecter les droits ou obligations juridiques existants des parties, dissipant ainsi toute incertitude
dans leurs relations juridiquesEn l'espèce, aucun arrêt rendu au fond ne pourrait répondre à ces
conditions essentielles de la fonction judiciaire.”
40French text:
“La Cour doit s'acquitter du devoir sur lequel elle a déjà appelé l'attention et qui consiste à
sauvegarder sa fonction judiciaire . Qu'au moment où la requête a été déposée la Cour ait eu ou non
compétence pour trancher le différend qui lui étasoumis, il reste que les ci rconstances qui se sont
produites depuis lors rendent toute décision judiciaire sans objet. La Cour estime dans ces conditions
que, si elle examinait l'affaire plus avant, elle ne s'acquitterait pas des devoirs qui sont les siens.” - 39 -
interpretation (id., para. 16). As there was nothing for the Court to clarify beyond what it had
previously stated on these issues, the Court found that it was unable to entertain Nigeria’s request.
30. Similar to the claims in the Nuclear Tests and the Northern Cameroons cases on which
this Court declined to grant relief, Mexico’s Re quest for an interpretation asks the Court for relief
that serves no purpose. As Mr.Bellinger and Mr .Mathias have made clear, the United States
agrees with Mexico that the Judgment in Avena imposes an obligation of result. And the United
States has acknowledged its obligation to provide review and reconsideration. Relief in connection
with this Request, including the indication of provisional measures, would serve only to reaffirm an
obligation already accepted, something which the Court explicitly declined to do in the Nuclear
Tests case. While the Nuclear Tests and Northern Cameroons cases were rendered moot by
developments subsequent to the filing of the claimant’s application, the principles of mootness
articulated in those cases apply equally in this case where Mexico’s claim is moot from its
inception.
31. And similar to the Cameroon v. Nigeria case, this Court has already answered the
questions Mexico seeks to have the Court address. There is nothing further for the Court to say in
these proceedings about the meaning and scope of the Avena Judgment that it did not already say in
the text of that Judgment. A further order of the Court that reiterated the Avena Judgment would
not provide any greater clarity to the Parties about their rights and obligations. Nor would it have
any additional legal effect, since the Unite d States already has a binding obligation under
international law to comply with the Avena Judgment; an additional provisional measures order on
the same points as the Avena Judgment would not strengthen or expand the force of that obligation.
32. As the Court stated in the Armed Activities on the Territory of the Congo case, it “should
not... indicate measures for the protection of any disputed rights other than those which might
ultimately form the basis of a j udgment in the exercise of” the Cour t’s jurisdiction over the claim
on the merits ( Armed Activities on the Territory of the Congo (New Application:2002)
(Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10July2002,
41
I.C.J. Reports 2002, p. 241, para. 58) . Given that a judgment on the merits of Mexico’s Request
4French text: “ne saurait toutefois i ndiquer des mesures tendant à protéger des-droits contestés autres que ceux
qui pourraient en définitive constituer la base d’un arrêt rendu dans l’exercice de . . .”. - 40 -
for interpretation would be moot and without obj ect, there are no rights under that request that can
form the basis for a judgment at th e merits stage, and thus no rights that may properly be protected
through the indication of provisional measures.
C. Mexico’s request for provisional measures differs sharply from requests in previous cases
under the Vienna Convention
33. I have now shown that, under both the C ourt’s provisional measures cases and in more
general case law, Mexico’s request for provisional measures must fail. In the absence of a genuine
dispute on the issues raised by Mexico’s Request for an interpretation, there is no prima facie
jurisdiction over that Request to provide a basi s for an indication of provisional measures. To
similar effect, the absence of a dispute renders Mexico’s claim on the merits moot and without
object, and thereby fails to place in issue rights that require protection through the indication of
provisional measures.
34. Having discussed these reasons for dismissing Mexico’s request for provisional
measures, I would like briefly to turn to my third point and address Mexico’s suggestions that
support for its Request may be found in this Cour t’s indication of provisional measures in previous
cases involving the Vienna Convention on Consular Relations. In this regard, the absence of a
genuine dispute over the issues raised by Mexico’s claims on the merits renders its request for
provisional measures before the Court today substantially different from the Breard, LaGrand and
Avena provisional measures cases.
35. In each of the three earlier consular notification cases, there was in fact a genuine dispute
between the parties about the obligations of the respondent. In particular, in each of these cases,
the parties disagreed about the re medy requested for the underlying claim for the violation of the
Vienna Convention on Consular Relations ( Vienna Convention on Consular Relations
(Paraguay v. United States of America), Provisional Measures, Order of 9April1998, I.C.J.
Reports 1998, p. 256, para. 31; LaGrand (Germany v. United States of America), Judgment, I.C.J.
Reports 2001, p.482, para.42; Avena and Other Mexican Nationals (Mexico v. United States of
America), Provisional Measures, Order of 5 February 2003, I. C.J. Reports 2003, p. 88, para. 46).
In Breard (Vienna Convention on Consular Relations (Paraguay v. United States of America),
Provisional Measures, Order of 9April1998, I.C.J. Reports 1998 , p.256, para.31), the parties - 41 -
disagreed about whether the Vienna Convention provided remedies for breaches. In LaGrand
(LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999,
I.C.J. Reports 1999(I) , p.14, para.17), the parties disagreed about whether the Court could
provide remedies in a party’s domestic processes for violations of the Vienna Convention. In the
earlier Avena provisional measures case ( Avena and Other Mexican Nationals (Mexico v. United
States of America), Provisional Measures, Order of 5February2003, I.C.J. Reports 2003 , p.88,
para.46), the parties disagreed about whether th e United States was required to retry individuals
who had not received consular notification.
36. In the present Avena case, on the other hand, there is no dispute between the Parties on
the issues raised by Mexico’s claim on the merits. Both Parties agree that paragraph 153 (9) of the
Avena Judgment, the Article that Mexico has put in issue, imposes an international law obligation
of result upon the United States. In the current Avena case, unlike in the prior Vienna Convention
cases, there are no disputed rights at issue in Mexico’s claim on the merits that could be prejudiced
by actions of the United States during the pendency of this litigation, and thus no rights that can
appropriately form the basis of a provisional measures order.
D. The Court should consider dismissing Mexico’s claims on the merits for manifest lack of
jurisdiction
37. Madam President, I am nearing the conclu sion of my presentation. Before summing up,
I would like to make one additional observation. As I have shown, the absence of any genuine
dispute about the issues on which Mexico seeks an interpretation of the Avena Judgment compels
the conclusion that this Court should not grant th e provisional measures that Mexico seeks. These
considerations also have implications for the appropriate disposition on the merits of Mexico’s
Request for interpretation.
38. With no issues in dispute in connection w ith that Request, the Request for interpretation
is fatally flawed and manifestly without jurisdiction. Any order on the merits of the Request would
be without object; it would only confirm points on which both Parties already agree. In the
Legality of Use of Force (Yugoslavia v. United States of America) case, the Court dismissed
Yugoslavia’s claim in its entirety with respect to the United States at the provisional measures
stage. The Court concluded that “the Court manifestly lacks jurisdiction to entertain Yugoslavia’s - 42 -
Application” and that “to maintain on the General List a case upon which it appears certain that the
Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound
administration of justice” (Legality, of Use of Force (Yugoslavia v. United States of America),
42
Provisional Measures, Order of 2June1999, I.C.J. Reports 1999(II) , p.925, para.29) . These
same considerations clearly apply in this case and, accordingly, the Court should give serious
consideration to dismissing Mexico’s Request for in terpretation in its entirety at this stage of the
proceedings.
E. Conclusion
39. Let me summarize the main points. No dispute exists in relationship to Mexico’s claim
on the merits. Therefore, no prima facie jurisd iction exists to grant Mexico’s Request for
interpretation of the Avena Judgment under Article 60 of the Court’s Statute. Indeed, the absence
of a dispute within the meaning of Article60 re nders Mexico’s Request moot and would involve
the Court in a process outside its judicial function. Accordingly, the Court should deny Mexico’s
request for provisional measures. And, because Mexico’s Request for interpretation raises no
issues that could properly be resolved by this Court, the Court should simply dismiss that
Application as well.
40. Mexico has asked this Court to embark on a road that leads nowhere, a judicial dead end
that leads the Court directly to a conclusion that it lacks jurisdiction and competence. Now is the
time for the Court to see clearly that this case lacks legal substance.
41. Thank you, Madam President, Members of the Court. I ask that you next call on
Mr. Mattler.
The PRESIDENT: Thank you, Mr.Thessin. The Court will at this juncture take a short
pause. The Court briefly rises.
The Court adjourned from 4.30 to 4.50 p.m.
The PRESIDENT: Please be seated. Mr. Mattler it is your turn to address the Court.
4French text: “la Cour n’a manifestement pas compétencpour connaître de la requête de la Yougoslavie...
maintenir au rôle général une affasur laquelle il apparaît certain quCour ne pourra se prononcer au fond ne
participerait assurément pas d’une bonne administration de la justice”. - 43 -
MMAr. TLER:
Mexico’s request for provisional measures goes beyond the relief sought
in its request for interpretation
1. Thank you, Madam President, Members of the Court. It is an honour for me again to
appear before this Court and to represent the United States of America.
2. I will briefly address the form of the provisional measures requested by Mexico.
3. In considering Mexico’s request, the Cour t should have due regard for the appropriate
character and scope of any provisional measures it might consider indicating. Under Article 41 of
the Court’s Statute, the Court may indicate provisional measures “to preserve the respective rights
of either party”. As the Court has recognized, this means that any provisional measures indicated
must be designed to preserve rights at issue in the merits phase of the dispute. In the case
concerning the Arbitral Award of 31 July 1989 , the Court refused to indicate provisional measures
on the ground that “the alleged rights sought to be made the subject of provisional measures are not
the subject of the proceedings before the Court on the merits of the case”, and therefore “any such
measures could not be subsumed by the Court’s judgment on the merits” (Arbitral Award of
31July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2March1990, I.C.J.
43
Reports 1990, p. 70, para. 26) .
4. The provisional measures requested by Mexico do not satisfy the Court’s test. They go
beyond “the subject of the proceedings before the Court on the merits of the case”. In
paragraph 15 (a) of its request for provisional measures, Mexico asks the Court to order:
“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 this day . . .”
5. Mexico’s proposed order purports to prohibit the United States from carrying out
sentences for these individuals prior to the conclu sion of this Court’s proceedings on Mexico’s
interpretation request.
43French text: “les droits allégués dont il est demandé qu'ils fassent l'objet de mesures conservatoires ne sont pas
l'objet de l'instance pendante deCour sur le fond de l'affaire; et qu'auc une mesure de ce genre ne saurait être
incorporée dans l'arrêt de la Cour sur le fond”. - 44 -
6. These requested measures go beyond what is needed to protect the rights Mexico asserts
in its interpretation request. Mexico’s Application does not request an interpretation of Avena that
would absolutely prohibit the United States from carrying out sentences in any of the individual
cases at issue in Avena . Rather, Mexico asks the Court to interpret Avena to mean precisely what
Avena says: that the United States is obligated not to carry out sentences in any of these cases
unless the individual affected has received review a nd reconsideration and it is determined that no
prejudice resulted from the violation of the Vienna Convention.
7. The specific interpretation Mexico seeks has three components. First, the chapeau of the
proposed order asks the Court to “adjudge and declare that the obligation incumbent upon the
United States under paragraph153(9) of the Avena Judgment constitutes an obligation of
result” ⎯ that is, requires the “result” that the United States provide review and reconsideration in
the affected cases.
8. Second, subparagraph (1) of the proposed order asks the Court to declare that pursuant to
this obligation of result, the United States must take any and all steps necessary to provide the
reparation of review and reconsideration mandated by the Avena judgment.
9. Third, subparagraph (2) of the proposed order asks the Court to declare that this obligation
of result also means that the United States must ta ke any and all steps necessary to ensure that no
Mexican national included in the Avena judgment is executed unless and until the review and
reconsideration required by Avena is completed and it is determined that no prejudice resulted from
the Vienna Convention violation.
10. No part of the interpretation sought by Mexico at the merits stage of these proceedings
would prohibit the United States from carrying out a sentence after providing the review and
reconsideration and appropria te determination regarding prejudice required by the Avena
Judgment. Yet, Mexico’s request for provisiona l measures focuses not on the provision of review
and reconsideration, but on the carrying out of the sentence itself, without regard to whether review
and reconsideration has been provided. In other words, Mexico seeks to protect rights that are not
protected even by its own interpretation of the Avena Judgment. Any provisional measures order
this Court might consider issuing in this case woul d need to be appropriately limited to addressing
the specific rights Mexico seeks at the merits stage. - 45 -
11. Thank you, Madam President, Members of the Court. I would ask that the Court now
call upon Mr. Vaughan Lowe.
The PRESIDENT: Thank you, Mr. Mattler. Mr. Lowe.
LMOW. E:
Abuse of process
1. Madame le président, Membres de la C our, c’est un privilège de me trouver à nouveau
devant cette Cour, et de m’être vu confié la défense de cette partie des plaidoiries faite au nom des
Etats-Unis.
2. Il est courant, pour les affaires plaidées devant cette Cour, que les parties en cause soient
représentées par une combinaison d’avocats anglophones et francophones. Malheureusement, dans
le peu de temps qui nous a été imparti, il n’a pas été possible de rassembler une équipe qui puisse
refléter avec satisfaction les deux langues officielles de travail de cette Cour.
3. Je vais donc continuer l’argumentation de ma plaidoirie en anglais, la langue dans laquelle
j’espère pouvoir développer le plus clairement possible les points importants que je me dois de
vous présenter.
4. My colleagues have demonstrated that as a matter of law there is no dispute between
Mexico and the United States in relation to the interpretation of thAvena Judgment. They have
submitted that the consequence as a matter of law is that the case is moot, and that the Court lacks
jurisdiction over it. Put in other words, there is no prima facie jurisdiction over the Mexican
Application for an interpretation of the Judgment. In fact the position is even clearer than that. It
is evident that the Court does not have jurisdiction. And in these circumstances, there is no basis
upon which the incidental request for provisional me asures can stand, and it must be dismissed.
My submissions take a slightly different approach. In his separate opinion in the Northern
Cameroons case, Sir Gerald Fitzmaurice made a trench ant observation in relation to preliminary
objections. He said that there are
“objections, not in the nature of objections to the competence of the Court, which can
and strictly should be taken in advance of any question of competence. Thus a plea
that the Application did not disclose the existence, properly speaking, of any legal
dispute between the parties, must precede competence, for if there is no dispute, there - 46 -
is nothing in relation to which the Court can consider whether it is competent or not.
It is for this reason that such a plea would be rather one of admissibility or
receivability than of competence.” ( Northern Cameroons (Cameroon v. United
44
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 105) .
And Sir Gerald went on to make a point which goes to the heart of the issue in this hearing. He
referred to the position which arises
“where the objection touches not so much th e substance of the claim, as the character
of what the Court is requested to do about it, having regard to the surrounding
circumstances ⎯ as for instance if the Court is asked to do something which does not
appear to lie within, or engage , its judicial function as a court of law. In cases of this
kind, the question of competence or jurisdiction becomes irrelevant, for it would be
inappropriate, and even misleading, for the Court to avoid the issues by simply finding
itself to lack jurisdiction, even if it did lack it; or alternatively, to find itself to be
competent when it was manifest that it could not in any event exercise that
competence for a priori reasons touching the whole nature of its function as an
international tribunal and judicial institution.” (Id.) 45
5. Well this, in our submission, is precisely the situation here. The absence of any real
dispute certainly goes to the question of the Cour t’s jurisdiction, and as my colleagues have shown
the Application can be dismissed on that ground. But there is another way to approach these
proceedings. And it is to say that the leading object ion is that Mexico has manufactured an alleged
dispute over the interpretation of the Avena Judgment, and has compounded the artifice because
what it has requested the Court to do in relation to that fictitious dispute is in fact something quite
different from the issue of a clarification ⎯ a wholly unnecessary clarification ⎯ of its earlier
Judgment.
6. No one is in any doubt as to the seriousness of the question of the death penalty. But there
is also a serious question concerning the proprie ty of attempting in this way to involve the
44
French text:
“d’autres exceptions n’ayant pas le caractère d’excepti ons à la compétence de la Cour qui peuvent et, à
strictement parler, doivent être examinéepréalablement à toute question de comp étence. Ainsi, une
exception d’après laquelle la requête n’a pas révélqu’il existait véritablement un différend entre les
parties doit être discutée avant la compétence, car, s’il n’y a pas de différend, il n’y a rien à propos de
quoi la Cour puisse envisager sa compétence ou son incompétence. C’est pour cette raison qu’une telle
exception concernerait plutôt la recevabilité que la compétence.”
45
French text:
“lorsque l’exception porte moins sur le fond de la de mande que sur le caractère de ce que la Cour est
priée de faire à ce sujet eu égard aux circonstances ⎯ cela se produit par exemple si la Cour est invitée à
faire quelque chose qui n’implique pas ou ne met pas en jeu la fonction judiciaire qui est la sienne comme
tribunal. Dans des cas de ce genr e, la question de compétence ou de juridiction devient sans pertinence,
car il serait inapproprié et même fallacieux que laour élimine la question simplement en constatant
qu’elle n’a pas compétence, même si c’est bien le cas; ou que la Cour s’estime compétente alors qu’il est
manifeste qu’elle ne peut en toute hypothèse exercer cette compétence pour des raisons générales a priori
touchant à la nature de sa fonction comme tribunal international et institution judiciaire.” - 47 -
International Court in the matter. The Application for interpretation is in reality no more than a
vehicle for a request that the Court issues orders which will not interpret the Judgment ⎯ as to
whose meaning there is no dispute or doubt whatsoever ⎯ but will be directed solely to increasing
pressure on the United States to comply with the Avena Judgment. The Court is requested by
Mexico to engage in what is in substance the enforcement of its earlier judgments and the
supervision of compliance with them. And that, in our submission, is an abuse of process, and
Mexico’s Application should be dismissed for that reason.
7. In developing this submission, Madam Pr esident, I have six propositions to put before
you. They are these:
1. That the Court has an inherent power to regulate its own proceedings in the interests of justice
and in order to safeguard the integrity of the Court.
2. That that power includes the power to dismiss applications where they amount to an abuse of
process.
3. That the Court is not bound by the party’s characterization of its application.
4. That where a party asserts that it is making an Application to the Court for a judgment or order
for a specific purpose and the Court considers th at the party is in reality pursuing some
different purpose which takes the application outside the scope of the provision on which it is
purportedly based, then the Court is entitled to dismiss that application.
5. And specifically, that where it appears to the C ourt that a party is making an application for a
judgment or order solely for the purpose of bringing pressure upon the other party to comply
with an earlier Judgment or Order of the Court, the Court is entitled to reject the application on
the ground that it amounts to an abuse of process.
6. And finally, that the Court may dismiss an application in the circumstances that I have
described at any stage in the pr oceedings, because the dismissal is an exercise of the Court’s
inherent power to regulate its own proceedings in the interest s of justice and in order to
safeguard the integrity of the Court.
8. In our submission, those are all sound pr opositions of international law, and their
application in this case should lead to the dismissal of Mexico’s Application for interpretation and
of this request for provisional measures. - 48 -
9. I shall deal with the six propositions one by one.
Proposition 1: The Court has an inherent po wer to regulate its own proceedings in the
interests of justice and in order to safeguard the integrity of the Court
10. There is no specific provision in the Court’s Statute which would entitle it to dismiss
Mexico’s Application on the grounds that I have briefly outlined. And we rely upon the existence
of an inherent power in the Court to regulate its own proceedings.
11. There is no doubt that tribunals have inherent powers and I think that our Mexican
friends accept this. The existence of those power s is a necessary and obvious corollary of the
responsibility of the tribunal for the proper and orderly discharge of its responsibilities. As was
observed in the separate opinion of a Member, now President, of this Court in the case of the
Legality of the Use of Force , “[t]he Court’s inherent jurisdictio n derives from its judicial character
and the need for powers to regulate matters connected with the administration of justice, not every
aspect of which may have been foreseen in the Rules” (Legality of Use of Force (Serbia and
Montenegro v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2004 , p. 1359,
para. 10.)46
12. That separate opinion refers to occasi ons on which this Court has recognized and
exercised that inherent power. And so too, does the separate opinion of JudgeKoojimans in the
same case, where he spoke of the use of the power “as an instrument of judicial policy to safeguard
the integrity of the Court’s procedure” (id., para. 22) 47. Both of those opinions refer to the power
of the Court to reject applications in limine litis, and to the appropriateness of doing so in cases
where it is necessary to do so for “the sound ad ministration of justice” (to borrow the language
used by the Court in 1999 when it ordered the removal from the List of the case brought by
Yugoslavia against Spain) ( Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999, p. 761, para. 35).
13. I will not detain the Court by adding to the list of authorities bearing on the question of
the existence of inherent powers of tribunals, though I would respectfully commend to the Court
46
French text: “Les pouvoirs inhérents de la Cour découl ent de son caractère judiciaire et du fait qu’elle doit
disposer de moyens pour réglementer des questions liées à l’administration de la justice, dont tous les aspects peuvent ne
pas être prévus par le Règlement.”
4French text: “comme un instrument de politique judiciaire afin de préserver l’intégrité de sa procédure”. - 49 -
the analyses of the question by Professor PaolaGaeta, published in the Festschrift for
JudgeAntonio Cassese, and by Dr.Chester Brown, published in the 2005 British Year Book of
International Law, copies of which we can make available to the Court and have passed or will
pass to our friends on the other side.
14. I will turn instead to the second proposition, that the Court has an inherent power to
dismiss applications where they amount to an abuse of process.
Proposition 2: That power includes the power to dismiss applications where they amount to
an abuse of process
15. It is almost tautological to say that a tribunal has the power to dismiss an application
which is an abuse of its process. Sometimes that power is spelled out explicitly. For example,
Article 294, paragraph 1, of the 1982 United Nations Law of the Sea Convention stipulates that any
of the courts or tribunals to which an application is made in respect of certain disputes under that
Convention
“shall determine at the request of a party, or may determine proprio motu, whether the
claim constitutes an abuse of legal process or whether prima facie it is well founded.
If the court or tribunal determines that the claim constitutes an abuse of legal process
or is prima facie unfounded, it shall take no further action in the case.”
16. Similarly, Article35 of the European Convention on Human Rights stipulates that the
European Court of Human Rights “shall declare in admissible any individual application . . . which
it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly
ill-founded, or an abuse of the right of application”, and that it may do so “at any stage of the
proceedings”.
17. Now the power to dismiss applications for abuse of process, even if it is not expressly
conferred by the tribunal’s constituent instrument, we believe exists as an inherent power.
Professor Zimmerman’s Commentary on the Statute of this Court says:
“Abuse of procedure is a special application of the prohibition of abuse of
rights, which is a general principle of intern ational law as well as in municipal law. It
consists of the use of procedural instruments or rights by one or more parties for
purposes that are alien to those for which the procedural rights were established.” 48
4Andreas Zimmermann and Tobi as Thienel, Article 60 , in The Statute of the Internati onal Court of Justice: A
Commentary, 831 (Andreas Zimmermann et al. dds., 2006). - 50 -
18. The principle of abuse of rights is itself well established in international law, and may be
regarded as one of the general principles of law r ecognized by civilized nations, which the Court is
directed to apply by Article 38 of its Statute. Again, time constraints preclude what is probably an
unnecessary recitation of the practice and case law which establishes the status of abuse of rights as
a general principle of law. Again, we can make available to the Court and will pass to our friends
on the other side the relevant pages of the classic studies by Professor BinCheng 49,
50 51
Professor Elisabeth Zoller , and a recent study by Professor Byers , in which references to a good
deal of this practice are assembled.
19. The power to dismiss on the ground of abuse of legal process has, in our submission, two
distinct bases. One is that the power is a corollary of the responsibility of the Court which it has to
safeguard the integrity of its procedure. To put the point plainly, Madam President, and with all
due respect, if the Court does not preserve the international judicial process against abuse, who else
will? There is no system of appeal. One can scarcely address issues of this kind by amending the
Statute of the Court. And if the Court does not defend itself, and also the States parties to its
Statute, from attempts to abuse its processes and distort its role, who else can do so? The Court
must have the power to dismiss applications which amount to abuses of its process.
20. The second basis for the power to dismiss is that it is an aspect of the general duty of
loyalty between the parties. And that latter point is well described in ProfessorZimmerman’s
Commentary on the Court’s Statute, where it is said that
“The most fundamental principle of substantive law applicable to judicial
proceedings in general is the proposition that, by engaging in proceedings before an
international tribunal, the parties enter into a legal relationship characterized by
mutual trust and confidence. Thus, the parties are bound by a general commitment of
loyalty among themselves and towards the Court. This duty flows from the principle
of good faith recognized in gene ral international law and sti pulated also in Article2,
paragraph2, of the United Nations Charte r as a general duty of the Member States.
The principle of good faith has a series of ‘concretizations’ in the field of procedural
law . . . First [says Professor Zimmerman], it requires the parties not to undertake any
action which could frustrate or substantially adversely affect the proper functioning of
the procedure chosen, the point being to protect the object and purpose of the
52
proceedings.”
49
Bin Cheng, General Principles of Law as applied by International Courts and Tribunals, 121-136 (1953).
50
Elizabeth Zoller, La Bonne Foi en Droit International Public, 24-42, 140-156 (1977).
51Michael Byers, Abuse of Rights: An Old Principle, a New Age, 47 McGill L.J. 389-431 (2002).
52Zimmerman, supra, 830. - 51 -
21. To put the point bluntly, litigation is not a game. Parties are not free to turn the words of
the Court’s Statute or Rules to serve purposes that they were never intended to serve. There is no
compulsory jurisdiction in international law. If States are to become bound to settle their disputes
before international tribunals, they must choose to do so; and their choice must be declared; and
the tribunal’s jurisdiction is circumscribed by the terms of that declaration.
22. There is no room for the suggestion that having “signed up” to the jurisdiction of a
tribunal over a particular dispute— whet her this Court or any other tribunal ⎯ a State must be
taken to have agreed to give the tribunal the right to play any role, and make any order whatsoever
in relation to that dispute.
23. Madam President, there are two aspects to the acceptance of international jurisdiction by
a State. There is the acceptance that a particular dispute or disputes in a particular category can go
to a specific tribunal. But, equally important, th ere is also the acceptance that the powers of that
tribunal are no more and no less than those that ar e created by the instruments which define its
powers and those that are inherent in its role as a judicial tribunal. No tribunal has unfettered
powers. States do not — and I make this submissi on with proper respect, knowing that it touches
the core of the Court’s discretion and responsibilities but confident that the Court will hear it as a
respectful reminder of the limits of a court’ s power— States do not give tribunals whose
jurisdiction they accept a carte blanche to make a ny and every contribution to the handling of the
dispute that the tribunal might be urged to make. There comes a point where any international
tribunal must say “we cannot do what we are requested to do. It lies outside our powers. We are
neither obliged, nor entitled, to allow the tribunal to be used in this way.”
24. Well, the question of what amounts to an abuse of process is a large one, which cannot
possibly be comprehensively addressed in these proceedings, and we confine ourselves to the
submission that within the indisputable core of that concept is the principle that tribunals, and
procedural devices within judicial processes, may not be used for purposes that are alien to those
for which they were established. I shall return to this point shortly; but for now it is enough to say
that this is a particular application of the broader application of détournement de pouvoir, or misuse
of powers. Such abuses damage not only the integrity and reputation of the tribunal which is the - 52 -
target of the attempt to enlist it in inappropriate activities, but also the rights of the other party,
which suffers as a result of the abuse of right.
25. We submit that the Court has now reached the point where it must say, “we cannot allow
the tribunal to be used in this way”.
Proposition 3: The Court is not bound by a party’s characterization of its application
26. I turn now and briefly to proposition3, that the Court is not bound by a party’s
characterization of its application. My coll eagues Mr.Matthias and Mr.Thessin have already
addressed this point. And they explained, first, th at there is no dispute, and second, that it is well
established in the Court’s jurisprudence in Peace Treaties, South West Africa and other cases that
the assertion of one by the parties that there is a dispute cannot bind the Court. The existence of
the dispute is an objective question, to be determined by the Court.
27. It may be helpful to draw the Court’s attention to the kind of question that might be put
to Mexico in order to elicit some sort of an an swer to this point. Article59 of the Rules of
Procedure of the Inter-American Court on Human Rights sets out the rules governing applications
for the interpretation of judgments of that court, and it stipulates that:
“The request for interpretation, referred to in Article 67 of the Convention [that
is the 1969 American Convention on Human Rights], may be made in connection with
judgments on the merits or reparations and shall be filed with the Secretariat. It shall
state with precision the issues relating to the meaning or scope of the judgment of
which the interpretation is requested .” ( http://www.corteidh.or.cr/reglamento.cfm)
(Emphasis added.)
It is that kind of provision that is helpful in determining whether there really is a dispute, and
if so, what it is. It is, of course, very similar tothe terms of Article 98 of the Rules of this Court.
Mexico refers to “differences” between obligations of result and obligations of means. But the
United States accepts that it is under an obligation of result. Mexico’s counsel themselves drew
your attention to this. Ms Babcock told you that every member of the United States Supreme Court
acknowledged that the United States was under an international law obligation to comply with the
Avena Judgment (Mexican pleadings, p.16). Ms Amirfar referred to the recognition by the
Supreme Court of “the existence of the undisputed, unequivocal obligation to comply with Avena”
(Mexican pleadings, p. 25) ⎯ perhaps a slip, but a telling one. She said that Mexico was here to - 53 -
“seek confirmation” of the Avena Judgment. Exactly so. You have said it once and Mexico now
wishes you to say it again.
One might ask Mexico, what precisely are the i ssues relating to the meaning or scope of the
Judgment of which the interpretation is requested? What precisely is the dispute between Mexico
and the United States?
28. And unless Mexico gives clear answers to such questions, its Application cannot even
get off the ground. But even if it does offer answers to those questions, it is for the Court to decide
whether or not there is a real dispute between the Parties. The fact that Mexico’s Application is
based on the premise that there is a dispute does no t make that premise correct. And that is the
point that my colleagues have made.
29. I shall now turn swiftly to my next point.
Proposition 4: Where a party asserts that it is making an application to the Court for an
order for a specific purpose and the Court considers that the party is in reality pursuing
some different purpose which takes the applicat ion outside the scope of the provision on
which it is purportedly based, the Court is entitled to dismiss the application
30. My fourth proposition is that where a part y asserts that it is making an application to the
Court for a judgment or order for a specific purpose and the Court considers that the party is in
truth pursuing some different purpose which tak es the application outside the scope of the
provision on which it is purportedly based, the Cour t is entitled to reject the application on that
ground.
31. More than half a century ago this Cour t clearly defined its role in interpretation
proceedings. As Mr. Mathias recalled, in the Judgment concerning the interpretation of the Asylum
case it said:
“The real purpose of the request must be to obtain an interpretation of the
judgment. This signifies that its object must be solely to obtain clarification of the
meaning and the scope of what the Court has decided with binding force, and not to
obtain an answer to questions not so decided. Any other construction of Article 60 of - 54 -
the Statute would nullify the provision of the article that the judgment is final and
without appeal.” (Request for Interpretation of the Judgment of 20 November 1950 in
53
the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402.)
The Court has consistently based itself on that principle. The passage that I have just read out was,
for example, quoted by this Court in the Nigeria v. Cameroon interpretation case in 1999 (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), pp. 36-37, para. 12).
32. The principle is important. Here Mexico is, no doubt, seeking to use the Request for
interpretation in order to advance the aim of the full implementation of the earlier Judgment. But
the sword that Mexico is wielding has two edg es, and it could equally well be used to delay
implementation. As the Court itself said, again in Nigeria v. Cameroon:
“The question of the admissibility of requests for interpretation of the Court’s
judgments needs particular attention because of the need to avoid impairing the
finality, and delaying the implementation, of these judgments. It is not without reason
that Article 60 of the Statute lays down, in the first place, that judgments are ‘final and
without appeal’.” (Id.) 54
33. The central issue here is how the Cour t will regard its power to interpret its own
judgments and in considering that question the Court will have to consider again the question of the
implications of acceding to requests for interpretati ons which has led it in the past to base itself
upon a carefully balanced understanding of the ro le of interpretative judgments within the
international judicial process.
34. The Court recently acted upon precisely this b asis, in its Judgment of 3 February 2006 in
the case of Armed Activities on the Territory of the Congo. And as the Court will recall, in
paragraph 107 of that Judgment, the Court said this:
53French text:
“Il faut que la demande ait réellement pour objet une interpréta tion de l’arrêt, ce qui signifie
qu’elle doit viser uniquement à faireéclaircir le sens et la portée de ce qui a été décidé avec force
obligatoire par l’arrêt, et non à obtenir la solution de points qui n’ont pas été ainsi décidés. Toute autre
façon d’interpréter l’article 60 du Statut aurapour conséquence d’annulera disposition de ce même
article selon laquelle l’arrêt est définitif et sans recours.”
54French text:
“La question de la recevabilité des demandes en interprétation des arrêts de la Cour appelle une
attention particulière en raison de la nécessité de ne pas porter atteinte au caractère définitif de ces arrêts
et de ne pas en retarder l’exécution. Ce n’est pas sans raison que l’article 60 du Statut énonce en premier
lieu que les arrêts sont ‘définitive[s] et sans recours’.” - 55 -
“Article XIV, paragraph 2, of the Unesc o Constitution provides for the referral, under
the conditions established therein, of questions or disputes concerning the
Constitution, but only in respect of its interpretation. The Court considers that such is
not the object of the DRC’s [of the Congo’s] Application. It finds that the DRC has in
this case invoked the Unesco Constitution and Ar ticle I thereof for the sole purpose of
maintaining that ‘[o]wing to the war’, it ‘t oday is unable to fulfil its missions within
Unesco’. The Court is of the opinion that th is is not a question or dispute concerning
the interpretation of the Unesco Constitution. Thus the DRC’s Application does not
fall within the scope of Article XIV of the Constitution.” 55
Accordingly, the Court rejected the applicati on which the DRC had made on the basis of the
Unesco Constitution.
35. The passage that I have quoted makes cl ear two points, beyond any need for further
interpretation or explanation.
36. The first is that the Court can and will ex ercise a power to determine, on the basis of the
application and the evidence before the Court, wh at the purpose of the application is and whether
that purpose falls within the ambit of the provision upon which the Applicant relies to establish the
jurisdiction of the Court or outside the ambit of that provision. In the Congo case it was evident
from the Application that the DRC’s real point was that it was unable to fulfil its “missions within
56
Unesco” ⎯ the complaint was, in essen ce, that the implementation of the provisions of the
Unesco Constitution was being impeded. The DRC asked the Court to exercise its jurisdiction on
the basis of a provision in the Unesco Convention which gave the Court the power to interpret the
57
Unesco Constitution . The DRC presented its Application as a matter falling within the power to
interpret the Unesco Constitution: but the Court took a different view.
37. The second point is that once the Court had decided that the DRC was not in reality
seeking an interpretation of the Unesco Convention, it decided that the Court could not proceed on
55
French text:
“paragraphe 2 de l’article XIV de l’acte constitutif de l’Unesco n’envisage la soumission de questions ou
différends relatifs à cet instrment, aux conditions prévues par cette disposition, qu’en matière
d’interprétation dudit instrument. La Cour considère que tel n’est pas l’objet de la requête de la RDC. En
effet, elle constate qu’en l’espèce la RDC n’a invoqué l’acte constitutif de l’Unesco et son article premier
qu’aux seules fins de soutenir que, du ‘fait de la guerre’, elle ‘est aujourd’hui incapable de remplir ses
missions au sein de l’Unesco’. De l’avis de la Cour, il ne s’agit pas là d’une question ou d’un différend
relatif à l’interprétation de l’acte constitutif de l’Unesco. La requête de la RDC n’entre ainsi pas dans les
prévisions de l’article XIV de cet instrument.”
56
“Par le fait de la guerre, la Répulique Démocratique du Congo est aujourd’hui incapable de remplir ses
missions au sein de l’Unesco notamment le droit à la liberté de pensée, de conscience et de religion, le droit de chercher,
de recevoir et de répandre, sa ns considération de frontière, les informations et les idées par quelque moyen que ce soit.”
(Application, p. 25.)
57Art.XIV.2: “Any question or dispute concerning the interpretation of this Constitution shall be referred for
determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine
under its Rules of Procedure.” - 56 -
the basis of a provision which gave the Court ju risdiction only over questions of interpretation.
There was no suggestion that the Court might try to delve into the case and discover some dispute
over interpretation upon which it might say something to the parties. The Application was simply
misconceived; and it was dismissed.
38. Madam President, Members of the Court, the closeness of the para llels with the present
case is inescapable. Mexico’s real point is that the Avena Judgment is not being implemented. It is
asking the Court to deal with its Application on the basis of the Court’s competence to interpret the
Avena Judgment. But there is no real dispute over th e interpretation of that Judgment. The United
States submits that, just as the Court dismissed the DRC Application, it should dismiss the Mexican
Application in this case.
Proposition 5: Specifically, where it appears to the Court that a party is making an
application for a judgment or an order sole ly for the purpose of bringing pressure upon
the other party to comply with an earlier j udgment or order of the Court, the Court is
entitled to reject the application on the ground that it amounts to an abuse of process
39. I turn to my fifth proposition, which is that where it appears to the Court that a party is
making an application for a judgment or order solely for the purpose of bringing pressure upon the
other party to comply with an earlier judgment or order of the Court, the Court is entitled to reject
the application on the grounds that it amounts to an abuse of process.
40. Mexico has attempted to manufacture a dispute in order to provide a basis for a
provisional measures application whose sole aim — as is explicit in the Application itself — is to
induce the Court to reiterate the obligation on th e United States to comply with the clear and
unequivocal terms of the Avena Judgment. That is misconceived, as was the Democratic Republic
of the Congo claim to which I have just referred. But there is a further aspect to the Mexican
Application which should not be ignored.
41. Common sense — which is always a good frien d of the lawyer — makes it clear that the
purpose of Mexico’s Application is to bring pr essure on the United States to comply with its
obligations under the Avena Judgment. I should perhaps say, to comply with what the
United States has explicitly and repeatedly admitted are its obligations under the Avena Judgment.
The Application is not concerned with interpretation, but with enforcement. It is trying to draw the
Court into the role of monitor and enforcer of its own judgments: and that, in our submission, is - 57 -
itself a clear abuse of process, because, to u se again the words of the Zimmerman Commentary on
the Court’s Statute, it is a “use of procedural in struments or rights by one or more parties for
purposes that are alien to those for which the procedural rights were established”.
42. The enforcement of this Court’s judgment is provided for, not in the Court Statute but in
Article 94 of the United Nations Charter. Article 94, paragraph 2, provides that:
“If any party to a dispute fails to perform the obligations incumbent upon it
under a judgment rendered by the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary, make recommendations or decide
upon measures to be taken to give effect to the judgment.” 58
In the constitutional order of the United Nations, of which this Court is the principal judicial organ,
it is the Security Council, and not the Court, which has responsibility for the enforcement of the
Court’s judgments. As the late ProfessorMosler put it in Judge Simma’s Commentary on the
United Nations Charter, “[t]he enforcement of decisions is not a matter for the ICJ” 59. Itisas
simple as that.
43. The rationale for this position is explaine d by Ambassador Rosenne in his study of the
Court. He wrote that:
“in international law the separation of the adjudication from the post-adjudication
phase is a fundamental postulate of the whol e theory of the judicial settlement of
disputes, and . . . this leads to the consequence that if the post-adjudication phase gives
rise to new political tensions, that situation or dispute will not be identical with the
case terminated by the judgment in question. Therefore the relevant provisions are
found in the Charter (as in the League Covenant before it), and not in the Statute of the
Court. Those stipulations relate exclusively to the powers of the Security Council
(and indirectly to those of other organs of the United Nations, and in particular the
Secretary-General as head of the Secretariat) but not to the functioning of the
Court.” 60
44. We respectfully submit that the Court sh ould continue to observe that fundamental
separation between the adjudication and the post- adjudication enforcement phase, and should not
permit itself to be drawn into the monitoring and en forcement of its own decisions. Certainly, to
attempt to pull the Court into these post-adjudication functions on the back of the Court’s
58French text: “Si une partie à un litige ne satisfait pas aux obligations qui lui incombent en vertu d'un arrêt rendu
par la Cour, l'autre partie peut recourau Conseil de sécurité et celui-ci, s'il le juge nécessaire, peut faire des
recommandations ou décider des mesures à prendre pour faire exécuter l'arrêt.”
59
The Charter of the United Nations, 1175(Bruno Simma ed., 2002).
60Shabtai Rosenne, The Law and Practice of the International Court of Justice 1920-2005, pp. 239-240 (2006). - 58 -
jurisdiction to interpret its judgment is as plain an example of an abuse of process as one could
wish to find.
Proposition 6: The Court may dismiss an app lication in the circumstances I have described
at any stage in the proceedings, because the dismissal is an exercise of the Court’s inherent
power to regulate its own proceedings in the in terests of justice and in order to safeguard
the integrity of the Court
45. I turn to my final proposition, that the Court may dismiss an application in the
circumstances I have described at any stage in the proceedings, because the dismissal is an exercise
of the Court’s inherent power to regulate its own proceedings in the interests of justice and in order
to safeguard the integrity of the Court.
46. This hearing is on a request for provisional measures, and it might be said that all of the
points that I have made so far are points that can be discussed at leisure in a hearing on the
substance of the Application for interpretation. But that would, we submit, be a wholly
misconceived conclusion and one wh ich could only be reached if a ll of our submissions— mine
and those of my colleagues — are rejected by the Court.
47. The Court can only receive an application under Article60 of its Statute if there is a
dispute. That is what Article60 says. If, as we submit, there is no dispute, the Court cannot be
seised of a valid request for interpretation, and th ere is no case before the Court to which this
provisional measures Application can be incidental.
48. If the alleged dispute has been manufactured by Mexico, as we submit, and there is no
real dispute, the Court should dismiss the Application as an abuse of process.
49. And I should perhaps say here that even to speak of a claim “manufactured” by Mexico
is to overstate the case. Mexico could, perhaps, have tried to find, throug h diplomatic exchanges,
some point of interpretation, no matter how minor, on which the Parties disagreed. But it did not.
This is a dispute with only one party ⎯ Mexico ⎯ which is trying to persuade the Court that the
United States really is embroiled in an argument. But it is not. There is no dispute.
50. If there is no dispute, and Mexico is simply trying to use the Court to put pressure on the
United States to comply with the Avena Judgment, that is an abuse of process, and the Court should
dismiss the Application. - 59 -
51. If Mexico is trying to draw the Court into the role of monitor and enforcer of its own
judgments, that too is an abuse of process.
52. My point is that all of these propositions have in common one thing, the fact that they are
as true today as they would be in six, 12, 18 months’ time when any hearing on the substance of
Mexico’s claim might be held. There is no ra tional reason for the Court to delay a decision on
these submissions. An abuse of process is an abuse of process, from its inception until the moment
when the tribunal asserts its authority and imposes order: and if this Application is, as we submit,
misconceived, it should be dismissed forthwith, to gether with the request for the indication of
provisional measures which is the immediate focus of our attention.
53. Madam President, Members of the Court, I thank you for your attention and I would ask
you now to call upon the Agent of the United States to make our closing submissions in this round.
The PRESIDENT: Thank you, Mr. Lowe, and I now call upon the Agent of the
United States.
Mr. BELLINGER:
Conclusion
1. Thank you again, Madam President, Members of the Court. I have only a few very short
comments at this point to conclude the presentation of the United States today.
2. First, as my colleagues have explained, it simply would not be appropriate for the Court to
indicate provisional measures in this case. Th ere is no dispute between Mexico and the United
States “as to the meaning or scope” of the Avena Judgment. Article 60 requires such a dispute, and
without one, there is no basis for the Court to proceed with Mexico’s Application. Under these
circumstances, the Court lacks the prima facie jurisdiction required for the indication of provisional
measures, and the Court should therefore dismiss Mexico’s request.
3. Second, the United States understands the gravity of the issue here ⎯ we are not blind to
it. A man is scheduled to be executed. The i ssue of capital punishment arouses deep feelings. But
this case is not about the death penalty. Although a pending execution date lends to the case an
obvious immediacy, it is not at the heart of the legal issue before you. Rather, what is at the heart - 60 -
of this case is the need to preserve the prope r role of this Court to hear and decide real legal
disputes. Mexico’s Application simply does not present such a dispute.
4. Third, I want to again impress on the Court that the United States takes its international
law obligation to comply with the Avena Judgment seriously. And not just to comply, not just to
try to comply but to achieve the result of complia nce. We have consiste ntly sought practical and
effective ways to implement that obligation. A th ree-year effort in this regard has only recently
been frustrated by the Supreme Court’s decision in the Medellín case. Accordingly, we have now
initiated a new effort with the request by Secretary of State Rice and Attorney General Mukasey to
the Governor of Texas. We are asking the state of Texas to take the steps necessary to give full
effect to the Avena Judgment and have already initiated discussions with Texas officials about how
to accomplish that objective.
5. Finally, I would urge the Court to consider the practical consequences of Mexico’s
Application. Mexico has come to the Court not with a genuine legal dispute, but seeking to force a
particular result. In my opening, I tried to explain how seriously the United States takes its
obligation to comply with Avena, and how substantial our efforts to find a practical and effective
way to fulfil that obligation have been. We agree with Mexico that our international law objection
is one of result, not just efforts. But to achieve this result, we are making numerous efforts. And
these efforts require no further encouragement from the Court, Indeed, I worry that fresh
intervention by the Court could pose significant co mplications. Under United States domestic law,
a decision by this Court reaffirming the obligation established in Avena, or ordering provisional
measures pending resolution of Mexico’s Application, will not be automatically enforceable in
United States courts, and ⎯ more importantly ⎯ will not give the President any greater authority
to direct United States courts to comply with Avena. In other words, as a legal matter, a new
decision will leave us exactly where we are now, trying to find a practical and effective solution to
a difficult legal problem. A new decision could, how ever, inject fresh controversy into an issue
that has already had more than its fair share of it. In a case where there is no real legal dispute, and
where the Court’s intervention would not legally change anything, that would be unfortunate
indeed. I strongly urge the Court ⎯ above all because the law demands it ⎯ not to indicate - 61 -
provisional measures in this case and ultimately to deem Mexico’s request for interpretation
inadmissible.
6. The submission of the United States is as fo llows: 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.
7. Thank you for your attention and consideration, Madam President, Members of the Court.
The United States concludes its presentation for today.
The PRESIDENT: Thank you, Mr.Bellinger. Judge Bennouna has a question for the
United States. Judge Bennouna.
M. le juge BENNOUNA : Je vous remercie Madame le président.
Comme vous venez de le dire Madame le pr ésident, cette question s’adresse aux Etats-Unis
d’Amérique. Elle est comme suit: les Etats-Unis ont déclaré qu’ils interprétaient, comme le
Mexique, l’arrêt de la Cour dans l’affaire Avena (paragraphe153, point9) comme leur imposant
une obligation de résultat et que par conséquent il n’existait pas de différend sur le sens et la portée
de cet arrêt, ainsi que cela est requis par l’article 60 du Statut de la Cour. Ma question commence
là: cette interprétation concerne-t-elle l’admini stration des Etats-Unis ou bien est-elle également
partagée par le Congrès de ce pays ? Je vous remercie Madame le président.
The PRESIDENT: Thank you, Judge Bennouna. The text of this question will be passed to
the Parties as soon as possible. Should it be convenient for the United States to do so, the Court
would appreciate a reply being given during the reply tomorrow of the United States.
That ends the first round of oral observations of the United States of America. The Court
will meet again at 10o’clock tomorrow morning to hear the second round of oral observations of
Mexico. The Court now rises.
The Court rose at 5.45 p.m.
___________
Public sitting held on Thursday 19 June 2008, at 3 p.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)