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) - Provisi

INTERNATIONAL COURT OF JUSTICE

Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Press Release
Unofficial

No. 2008/20
16 July 2008

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)

Provisional Measures

The Court indicates that the United States of America shall take “all measures necessary”
to ensure that five Mexican nationals are not executed pending its final judgment

THE HAGUE, 16July2008. The International Court of Justice (ICJ), principal judicial

organ of the United Nations, today gave its decision on the request for the indication of provisional
measures submitted by Mexico in the case concerning the 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).

In its Order, the Court

“I. By seven votes to five,

Finds that the submission by the United States of America seeking the dismissal of the
Application filed by the United Mexican States can not be upheld;

II. Indicates the following provisional measures:

(a) By seven votes to five,

The United States of America shall take all me asures necessary to ensure that Messrs.José

Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal
García, and Roberto Moreno Ramos are not exec uted pending judgment on the Request for
interpretation submitted by the United Mexican States, unless and until these five Mexican
nationals receive review and rec onsideration consistent with para graphs 138 to 141 of the Court’s
Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals

(Mexico v. United States of America);

(b) By eleven votes to one,

The Government of the United States of Am erica shall inform the Court of the measures
taken in implementation of this Order; - 2 -

III. By eleven votes to one,

Decides that, until the Court has rendered its judg ment on the Request for interpretation, it
shall remain seised of the matters which form the subject of this Order.”

History of the proceedings

On 5June2008 Mexico filed a Request for interpretation of the Judgment delivered by the
Court on 31March2004 in the case concerning Avena and Other Mexican Nationals (Mexico v.
United States of America). In its Request Mexico recalled that, in the Avena Judgment, the Court

inter alia found “that the United States had breached Article36 of the Vienna Convention on
Consular Relations in the cases of 51Mexican nationals [who had been arrested, tried and
sentenced to death in the United States] by failing to inform them... of their rights to consular
access and assistance”. Mexico added that the C ourt determined, in paragraph153(9) of the

Judgment, the remedial obligations incumbent upon the United States, namely “to provide, by
means of its own choosing, review and reconsideration of the convictions and sentences” of the
said Mexican nationals. In its request Mexico c ontended that “a fundamental dispute” had arisen
“between the parties as to the scope and meaning” of paragraph 153 (9) and that the Court needed

“to provide guidance to the parties”. As basis for the jurisdiction of the Court, Mexico invoked
Article60 of the Statute of the Court, which pr ovides that: “In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the request of any party.”

On the same day, Mexico filed a request for the indication of provisional measures, asserting
that, since the Court had rendered the Avena Judgment, “requests by the Mexican nationals for the
review and reconsideration mandated in their cases . . . ha[d] repeatedly been denied” and that the
State of Texas had set the execution date for one of the nationals named in the Avena Judgment,

Mr.Medellín, on 5August2008, while four other Mexican nationals coul d shortly receive an
execution date. Mexico therefore asked the Cour t to order a stay of those executions pending a
final decision of the Court on its Request for interpretation (see Press Release No.2008/15 of
5 June 2008).

Public hearings, in which both Parties participated, were held on 19 and 20 June 2008.

Reasoning of the Court

⎯ Article 60 of the Statute of the Court

The Court begins by noting that its jurisdiction on the basis of Article 60 of the Statute is not

preconditioned by the existence of any other basi s of jurisdiction as between the parties to the
original case and that accordingly, even if the basis of jurisdiction in the original case lapses, it may
nevertheless deal with a request for interpretation. It further states that, when a request for the
indication of provisional measures is made in the context of a request for interpretation of a Court’s

judgment under Article 60, it has first to consider whether the conditions to examine such a request
appear to be satisfied. To this effect, Article 60 of its Statute requires that there be a “dispute as to
the meaning or scope” of the said judgment.

The Court observes that the Parties disagr ee on whether there is a dispute amongst them
about the meaning or scope of paragraph 153 (9) of the Avena Judgment. Mexico understands the
Judgment as establishing an obligation of result on the United States, “including all its component
organs at all levels”, to provide the requisite review and reconsideration “irrespective of any

domestic law impediment” and states that, “by its actions thus far”, the United States understands
the Judgment “to constitute merely an obligation of means, not... of result”. On its part, the
United States explains that, while the implementation of the Avena Judgment has met with
considerable “domestic law constraints” due to the federal structure of the country, it has “clearly

accepted that the obligation to provi de review and reconsideration is an obligation of result” and - 3 -

that it has “sought to achieve that result”. Accord ingly, in the United States view, there exists no
dispute with respect to the meaning and scope of paragraph 153 (9) between itself and Mexico, and

the Court lacks jurisdiction ratione materiae to entertain Mexico’s App lication, which constitutes
“an abuse of process”, being directed to the implementation of the Avena Judgment. The United
States further argues that the Court lacks jurisdiction prima facie to indicate provisional measures.

The Court examines the wording of Article60 of the Statute and notes that the French and
English versions are not in total harmony becau se the French uses the word “contestation” while
the English refers to a “dispute”. The Court notes that Article 60 of its Statute is identical to that of
its predecessor, the Permanent Court of Internatio nal Justice, and goes on to explain that the

drafters of the Statute of the Permanent Court c hose to use the term “contestation” (rather than
“différend”) in Article60. It observes that th e term “contestation” is wider in scope, does not
require the same degree of opposition and that its underlying concept is more flexible in its
application to a particular situation. The Cour t then looks at the way the Permanent Court and

itself addressed the question of the meaning of the term “dispute” (“contestation”) in their
jurisprudence. It states that “the manifestation of the existence of the dispute in a specific manner,
as for instance by diplomatic negotiations, is not required” for the purposes of Article 60, nor is it
required that “the dispute should ha ve manifested itself in a formal way”. It adds that recourse

could be had to the Permanent Court as soon as the interested States had in fact shown themselves
as holding opposing views in regard to the meaning or scope of a judgment of the Court, and that
this reading was confirmed by the ICJ in a 1985 Judgment in the case concerning Application for

Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya).

The Court then considers whether there appear s to be a dispute between the Parties within
the meaning of Article60 of the Statute. Havi ng reviewed their arguments, the Court finds that,

while it seems that both Parties regard paragraph153(9) of the Avena Judgment “as an
international obligation of result”, they nonethel ess “apparently hold different views as to the
meaning and scope of that obligation of result, na mely, whether that understanding is shared by all

United States federal and state authorities and whether that obligation falls upon all those
authorities”. The Court notes that there “appears to be a difference of opinion” between the Parties
as to the meaning and scope of the Court’s finding in paragraph 153 (9) of the Avena Judgment and
that recourse could thus be had to the Court unde r Article 60 of the Statute. Having found that it

may deal with Mexico’s Request for interpretation under Article 60 of the Statute, the Court states
that it follows that the submission of the United States, that the Application of Mexico be dismissed
in limine “on grounds of manifest lack of jurisdic tion”, cannot be upheld, and also that it may
address Mexico’s Request for indication of provisional measures.

⎯ Link between the alleged rights to be protected and the Request for interpretation

The Court recalls that, to indicate the request ed provisional measures, it must be convinced

that there exists a link between the alleged rights the protection of which is sought and the subject
of Mexico’s Request for interpretation. It points out that in its Request, Mexico seeks clarification
of the meaning and scope of paragraph153(9) of the Avena Judgment, whereby the Court found
that the United States is under an obligation to pr ovide, by means of its own choosing, review and

reconsideration of the convictions and sentences of the Mexican nationals, taking into account both
the violation of the rights set forth in Article 36 of the Vienna Conventi on and paragraphs138 to
141 of the Judgment. It observes that it is the interpretation of the meaning and scope of that
obligation, and hence of the rights which Mexi co and its nationals have on the basis of

paragraph153(9), that constitutes the subject of the proceedings before the Court on the Request
for interpretation, and that Mexico filed a requ est for the indication of provisional measures in
order to protect these rights pending the Court’s fina l decision. The Court thus concludes that the

rights which Mexico seeks to protect have a sufficient connection with the Request for
interpretation. - 4 -

⎯ Risk of irreparable harm and urgency

Finally, the Court must assess the existence of the required urgency, “in the sense that action
prejudicial to the rights of either party is likely to be taken before [it] has given its final decision”.
The Court observes that the execution of a national, the meaning and scope of whose rights are in
question, before the Court delivers its judgment on the Request for interpretation “would render it

impossible for the Court to order the relief that [h is national State] seeks and thus cause irreparable
harm to the rights it claims”. Having reviewed the information before it, the Court finds that “there
undoubtedly is urgency” and that the circumstances require that it indicate provisional measures to
preserve the rights of Mexico, as Article 41 of its Statute provides.

⎯ Miscellaneous

The Court goes on to say that it is fully aware that the federal Government of the United

States has been taking many diverse and insisten t measures in order to fulfil the international
obligations of the United States under the Avena Judgment. It notes that the United States has
recognized that, were any of the Mexican nationa ls named in the request for the indication of
provisional measures to be executed without the necessary review and reconsideration required

under the Avena Judgment, that would constitute a violation of the United States obligations under
international law.

The Court concludes by saying that it is “in the interest of both Parties that any difference of

opinion as to the interpretation of the meaning and scope of their rights and obligations under
paragraph 153 (9) of the Avena Judgment be resolved as early as possible”, and that it is therefore
appropriate that the Court ensure that a final judgment be reached “with all possible expedition”.

The Court recalls that the decision given on the request for the indication of provisional measures
“in no way prejudges any question that [it] may ha ve to deal with relating to the Request for
interpretation”.

Composition of the Court

The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh;
JudgesRanjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov; Registrar Couvreur.

JudgeBuergenthal appends a dissenting opinion to the Order; JudgesOwada, Tomka and
Keith append a joint dissenting opinion to the Order; JudgeSkotnikov appends a dissenting
opinion to the Order.

___________

A summary of the Order appears in the document “Summary No.2008/3”, to which
summaries of the opinions are annexed. In add ition, the present press release, the summary of the
Order and the full text of the Order can be found on the Court’s website (www.icj-cij.org).

___________

Information Department:

Mrs. Laurence Blairon, Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+31 (0)70 302 2394)