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) - The Cou

INTERNATIONAL COURT OF JUSTICE

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Website: www.icj-cij.org

Press Release
Unofficial

No. 2009/4
19 January 2009

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)

The Court finds that the matters raised by Mexico cannot give rise to an interpretation

of the Judgment and that the United States of America has breached the
Order indicating provisional measures of 16 July 2008 in the case of
Mr. José Ernesto Medellín Rojas, executed on 5 August 2008

THE HAGUE, 19January2009. The Interna tional Court of Justice (ICJ), the principal
judicial organ of the United Nations, today rende red its Judgment in the case concerning the
Request for Interpretation of the Judgme nt 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 Application of 5June2008, Mexico asked the Court to interpret paragraph153(9) of
the Avena Judgment. That paragraph reads as follows:

“153. For these reasons,

The Court . . .

(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
reconsideration of the convictions and sentences of the Mexican nationals referred to
in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of

the rights set forth in Article36 of the [Vienna] Convention [on Consular Relations]
and of paragraphs 138 to 141 of [the present] Judgment.”

In the Judgment rendered today, which is final, binding and without appeal, the Court,

“(1) By eleven votes to one,

Finds that the matters claimed by the United Mexican States to be in issue
between the Parties, requiring an interpretation under Article 60 of the Statute, are not
matters which have been decided by the Court in its Judgment of 31March2004 in

the case concerning Avena and Other Mexican Nationals (Mexico v. United States of
America), including paragraph 153(9), and thus cannot give rise to the interpretation
requested by the United Mexican States; - 2 -

U(na)nimously,

Finds that the United States of America has breached the obligation incumbent
upon it under the Order indicating provisional measures of 16 July 2008, in the case of
Mr. José Ernesto Medellín Rojas;

(3) By eleven votes to one,

Reaffirms the continuing binding character of the obligations of the United
States of America under paragraph153(9) of the Avena Judgment and takes note of

the undertakings given by the United States of America in these proceedings;

(4) By eleven votes to one,

Declines , in these circumstances, the request of the United Mexican States for

the Court to order the United States of America to provide guarantees of
non-repetition;

(5) By eleven votes to one,

Rejects all further submissions of the United Mexican States.”

Reasoning of the Court

1. Request for interpretation of the Avena Judgment

⎯ Question of the existence of a dispute as to the meaning and scope of the Avena Judgment

The Court recalls that Mexico’s Request for interpretation of paragraph 153 (9) of the Avena
Judgment was made by reference to Article60 of the Statute. That Article provides that “[t]he
judgment is final and without appeal. In the event of dispute as to the meaning or scope of the

judgment, the Court shall construe it upon the request of any party.” The Court therefore examines
whether the conditions indicated in Article60 ar e satisfied and whether such a dispute exists
between the Parties in the present case, as is claimed by Mexico.

The Court notes first that there is no dispute between the Parties as to whether
paragraph 153 (9) lays down an obligation of result.

The Court then seeks to establish whether a di spute between the Parties might exist as to

those upon whom that obligation of result specifically falls. It observes that the question of
whether such a dispute exists within the meaning of Article60 of its Statute can be perceived in
two ways.

On the one hand, it indicates that a variety of factors suggest that there is a difference of
perception between the Parties as to those upon whom the obligation falls. It recalls that, according
to Mexico, the interpretation given by the United States Supreme Court in the Medellín v. Texas
case (Supreme Court Reporter , Vol.128, 2008, p.1346)— namely that the judgments of the

International Court of Justice are not, as such, directly applicable within the domestic legal order of
the United States — “is inconsistent with the interpretation of the Avena Judgment as imposing an
obligation of result incumbent on all constituent organs of the United States, including the
judiciary”.

On the other hand, the Court points to factors that suggest, on the contrary, that there is no
dispute between the Parties as to those upon whom the Avena Judgment specifically falls. The
Court emphasizes that, under Article98(2) of the Ru les of Court, any request for interpretation

submitted to it must indicate “the precise point or points in dispute”. It notes that Mexico - 3 -

“nonetheless remain[s] very non-specific as to what the claimed dispute precisely is” and
consequently observes that, “[w]hether in terms of meeting the requirements of Article 98 (2) of the

Rules, or more generally, it could be argued th at in the end Mexico has not established the
existence of any dispute between itself and the Un ited States”, and that “Mexico did not specify
that the obligation of the United States under the Avena Judgment was directly binding upon its
organs, subdivisions or officials, although this might be inferred from the arguments it presented”.

⎯ Question of the direct effect of the obligation established in paragraph153(9) of the Avena
Judgment

In the view of the Court, the Parties’ di fferent stated perspectives reveal “different
contentions as to whether paragraph 153 (9) . . . envisages that a direct effect is to be given to the
obligation contained therein”. Be that as it may, the Court considers that “there would be a further
obstacle to granting the request of Mexico even if a dispute in the present case were ultimately

found to exist within the meaning of Article 60 of the Statute”. It notes that “the Avena Judgment
nowhere lays down or implies that the courts in the United States are required to give direct effect
to paragraph 153 (9)”; and it observes that, accordin g to its settled jurisprudence, a question which
was not decided in an initial Judgment “cannot be submitted to it for interpretation” in the present

Judgment. The Court concludes from this that it “cannot accede to Mexico’s Request for
interpretation” of the Avena Judgment.

The Court nonetheless adds that “considerations of domestic law which have so far hindered

the implementation of the obligation incumbent u pon the United States, cannot relieve it of its
obligation”. It points out that “[a] choice of means was allowed to the United States in the
implementation of its obligation and, failing success within a reasonable period of time through the

means chosen, it must rapidly turn to alternative and effective means of attaining that result”.

2. Additional claims made by Mexico

The Court then turns to the three additiona l claims presented by Mexico, which takes the

view that by executing Mr. José Ernesto Medellín Rojas on 5 August 2008 without having provided
him with the review and reconsideration required under the Avena Judgment, the United States has
(1)breached the Order indicating provisional measures of 16July2008; (2) breached the Avena
Judgment itself; and (3) must provide guarantees of non-repetition.

On the first point, the Court “finds that th e United States did not discharge its obligation
under the Court’s Order of 16July2008, in the case of Mr. José Ernesto Medellín Rojas”. The
Court dismisses Mexico’s second additional claim, noting that “the only basis of jurisdiction relied

upon for this claim in the present proceedings is Artic le 60 of the Statute, and . . . that Article does
not allow it to consider possible violations of the Judgment which it is called upon to interpret”.
Lastly, the Court reiterates that “its Avena Judgment remains binding and that the United States

continues to be under an obligation fully to impl ement it”; taking note of the undertakings given
by the United States of America in these proceedings, it dismisses the third of the additional claims.

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.

* - 4 -

JudgesKoroma and Abraham append declar ations to the Judgment of the Court;
Judge Sepúlveda-Amor appends a dissenting opinion to the Judgment of the Court.

___________

A summary of the Judgment appears in the document “Summary No.2009/1”, to which
summaries of the declarations and the dissenting opinion are annexed. In addition, this press
release, the summary and the full text of th e Judgment can be found on the Court’s website

(www.icj-cij.org) under “Cases”.

___________

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Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
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