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
Summary
Not an official document
Summary 2008/3
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)
Request for the indication of provisional measures
Summary of the Order
The Court begins by recalling that, on 5June2008, the United Mexican States (hereinafter
“Mexico”), filed an Application instituting proceedings whereby, referring to Article60 of the
Statute and Articles98 and 100 of the Rules of Court, it requested the Court to interpret
paragraph 153 (9) of the Judgment delivered by the Court on 31 March 2004 in the case concerning
Avena and Other Mexican Nationals (Mexico v. United States of America) (hereinafter “the Avena
Judgment”).
The Court notes that, in its Application, Mexico states that in paragraph 153 (9) of the Avena
Judgment the Court found “that the a ppropriate reparation in this case consists in the obligation of
the United States of America to provide, by means of its own choosing, review and reconsideration
of the convictions and sentences of the Mexican nationals” mentioned in the Judgment, taking into
account both the violation of the rights set forth in Article36 of the Vienna Convention on
Consular Relations (hereinafter “the Vienna Convention”) and paragraphs138 to 141 of the
Judgment. It observes that Mexico alleges that “requests by the Mexican nationals for the review
and reconsideration mandated in their cases by the Avena Judgment have repeatedly been denied”.
The Court indicates that in its Application, Mexi co refers to Article 60 of the Statute of the
Court which provides that “[i]n the event of dispute as to the meaning or scope of the judgment, the
Court shall construe it upon the request of any party” and that it contends, citing the Court’s case
law, that the Court’s jurisdiction to entertainrequest for interpretation of its own judgment is
based directly on this provision.
The Court observes that Mexico understands the language of paragraph 153 (9) of the Avena
Judgment as establishing “an obligation of result”, while, according to Mexico, it follows from the
conduct of the United States that the latter understands that “paragraph153(9) imposes only an
obligation of means”.
The Court recalls that, on 5 June 2008, Mexico also submitted a request for the indication of
provisional measures, asking that, pending judgment on its Request for interpretation, the Court
indicate: - 2 -
“(a) that the Government of the United States take all measures necessary to ensure
that José Ernesto Medellín, César R oberto Fierro Reyna , Rubén Ramírez
Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed
pending the conclusion of the proceedings instituted [on 5 June 2008];
(b) that the Government of the United States inform the Court of all measures taken in
implementation of subparagraph (a); and
(c) that the Government of the United States ensure that no action is taken that might
prejudice the rights of Mexico or its nationals with respect to any interpretation
this Court may render with respect to paragraph 153 (9) of its Avena Judgment.”
The Court notes that Mexico asks that its request for the indication of provisional measures
be treated as a matter of the greatest urgency “in view of the extreme gravity and immediacy of the
threat that authorities in the United States will execute a Mexican national [aTexas court has
scheduled Mr.Medellín’s execution for 5August20 08, and four more Mexi can nationals are “in
imminent danger of having execution dates set by th e State of Texas”] in violation of obligations
the United States owes to Mexico”.
The Court then summarizes the arguments put forward by the Parties during the public
hearings held on 19 and 20 June 2008.
It indicates that Mexico restated the position set out in its Application and in its request for
the indication of provisional measures, affirming that the requirements for the indication by the
Court of such measures had been met, while the United States claimed that there existed no dispute
between itself and Mexico as to “the meaning or scope of the Court’s decision in Avena ” because
the United States “entirely agree[d]” wi th Mexico’s position that the Avena Judgment imposed an
international legal obligation of “result” and not merely of “means”. In the United States view, the
Court was being “requested by Mexico to engage in what [was] in substance the enforcement of its
earlier judgments and the supervision of compliance with them” and, given the fact that the United
States had withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations
on 7 March 2005, a proceeding on interpretation w as “potentially the only jurisdictional basis” for
Mexico to seise the Court in matters involving the violation of that convention.
The Court notes that at the end of the hearings, Mexico made the following request:
“(a)that the United States, acting through all its competent organs and all its
constituent subdivisions, including all bran ches of government and any official,
state or federal, exercising government au thority, take all measures necessary to
ensure that José Ernesto Medellín, César Roberto Fierro Reyna, Rubén Ramírez
Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed
pending the conclusion of the proceedings instituted by Mexico on 5June2008,
unless and until the five Mexican nationals have received review and
reconsideration consistent with paragraphs 138 through 141 of this Court’s Avena
Judgment; and
(b) that the Government of the United States inform the Court of all measures taken in
implementation of subparagraph (a).” - 3 -
The United States, for its part, requested that the Court reject the req
uest of Mexico for the
indication of provisional measures of protection an d not indicate any such measures, and that the
Court dismiss Mexico’s Application for interpretation on grounds of manifest lack of jurisdiction.
*
The Court begins its reasoning by observing that its jurisdiction on the basis of Article 60 of
the Statute is not preconditioned by the existence of any other basis of jurisdiction as between the
parties to the original case. It follows that, even if the basis of jurisdic tion in the original case
lapses, the Court, nevertheless, by virtue of Artic le60 of the Statute, may entertain a request for
interpretation.
The Court goes on to say that in the case of a request for the indication of provisional
measures made in the context of a request for interpretation under Article 60 of the Statute, it has to
consider whether the conditions laid down by that Article for the Court to entertain a request for
interpretation appear to be satisfied.
The Court states that according to Mexico, paragraph153(9) of the Avena Judgment
“establishes an obligation of r esult that obliges the United States, including all its component
organs at all levels, to provide the requisite review and reconsideration irrespective of any domestic
impediment”, and that the “ob ligation imposed by the Avena Judgment requires the United States
to prevent the execution of any Mexican nationa l named in the Judgment unless and until that
review and reconsideration has been completed a nd it has been determined whether any prejudice
resulted from the Vienna Convention violations found by this Court”. It adds that, in Mexico’s
view, the fact that “[n]either the Texas executiv e, nor the Texas legislature, nor the federal
executive, nor the federal legislature [of the United States] has taken any legal steps at this point
that would stop th[e] execution [of Mr. Medellín] from going forward . . . reflects a dispute over the
meaning and scope of [the] Avena ” Judgment. According to Mexico, “the United States
understands the Judgment to constitute merely an obligation of means, not an obligation of result”.
The Court recalls that the United States has argued that Mexico’s understanding of
paragraph153(9) of the Avena Judgment as an “obligation of result... is precisely the
interpretation that the United States holds concerni ng the paragraph in question” (emphasis in the
original) and that, while admitting that, because of the structure of its Government and its domestic
law, the United States faces substantial obstacl es in implementing its obligation under the Avena
Judgment, the United States confirmed that “it h as clearly accepted that the obligation to provide
review and reconsideration is an obligation of resu lt and it has sought to achieve that result”. The
Court indicates that, in the United States view, in the absence of a dispute with respect to the
meaning and scope of paragraph153(9) of the Avena Judgment, Mexico’s claim does not fall
within the provisions of Article60 and that the Court lacks “jurisdiction ratione materiae ” to
entertain Mexico’s Application and accordingly lack s “the prima facie jurisdiction required for the
indication of provisional measures”.
Examining the French and English versions of Article 60 of the Statute, the Court observes
that they are not in total harmony: the French text uses the term “contestation”, which has a wider
meaning than the term used in the English text (“dispute”), although in their ordinary meaning,
both terms in a general sense denote opposing views. The Court notes that Article 60 of its Statute
is identical to that of its predecessor, the Perman ent Court of International Justice, and goes on to
explain that the drafters of the Statute of the Permanent Court chose to use the term “contestation”
(rather than “différend”) in Article60. It observ es that the term “contestation” is wider in scope,
does not require the same degree of opposition and th at its underlying concept is more flexible in
its application to a particular situation. The C ourt then looks at the way the Permanent Court and - 4 -
itself addressed the question of the meaning of the term “dispute” (“contestation”) in their
jurisprudence. It indicates that “the manifesta tion of the existence of the dispute in a specific
manner, as for instance by diplomatic negotiations , is not required” for the purposes of Article 60,
nor is it required that “the dispute should have ma nifested itself in a formal way”. It adds that
recourse could be had to the Permanent Court as so on 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 1985Judgment in the case concerning
Application for Revision and Interpretation of the Judgment of 24February1982 in the Case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisiav. Libyan Arab
Jamahiriya).
The Court then explains that it needs to de termine whether there appears to be a dispute
between the Parties as to the meaning or scope of the Avena Judgment. Recalling the arguments of
the Parties, it finds that, while it seems both Parties regard paragraph153(9) of the Avena
Judgment as an international obligation of result, the Parties nonetheless apparently hold different
views as to the meaning and scope of that obliga tion of result, namely, whether that understanding
is shared by all United States federal and stat e authorities and whether that obligation falls upon
those authorities.
It points out that, in the light of the positions taken by the Parties, there appears to be a
difference of opinion between them as to the meaning and scope of the Court’s finding in
paragraph 153 (9) of the operative part of the Judgment and thus recourse could be had to the Court
under Article60 of the Statute. The Court finds that it may, under Article60 of the Statute, deal
with the Request for interpretation, that the submission of the United States, that the Application of
Mexico be dismissed in limine “on grounds of manifest lack of jurisdiction”, cannot be upheld, and
that it may address the request for the indication of provisional measures.
Turning to Mexico’s request for the indication of provisional measures, the Court states that,
when considering such a request, it “must be concerned to preserve... the rights which may
subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent”.
The Court adds that a link must be established between the alleged rights the protection of which is
the subject of the provisional measures being sought, and the subject of the principal request
submitted to the Court.
After recalling the arguments of the Parties thereon, the Court notes that Mexico seeks
clarification of the meaning and scope of pa ragraph153(9) of the operative part of the
2004Judgment in the Avena case, whereby the Court found that the United States is under an
obligation to provide, by means of its own choosing, review and reconsideration of the convictions
and sentences of the Mexican nationals, taking into account both the violation of the rights set forth
in Article36 of the Vienna Conve ntion and paragraphs138 to 141 of the Judgment. The Court
observes that it is the interpretation of the meani ng and scope of that obligation, and hence of the
rights which Mexico and its nationa ls 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 request for the indication of provisional measu res in order to protect these rights pending the
Court’s final decision. The Court thus finds that the rights which Mexico seeks to protect by its
request have a sufficient connection with the Request for interpretation.
The Court goes on to say that its power to indicate provisional measures under Article 41 of
its Statute “presupposes that irreparable prejudice shall not be caused to rights which are the
subject of a dispute in judicial proceedings” and th at it will be exercised only if there is urgency in
the sense that action prejudicial to the rights of eith er party is likely to be taken before the Court
has given its final decision. - 5 -
The Court notes that Mexico claims that th ere indisputably is urgency, while the United
States argues that, as there are no rights in dispute, “none of the requirements for provisional
measures are met” (emphasis in the original).
The Court points out 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 [his national State] seeks and thus cause
irreparable harm to the rights it claims”. It finds that it is apparent from the information before it
that Mr.JoséErnesto Medellín Rojas, a Mexican national, will face execution on 5August2008
and four other Mexican nationals, Messrs. César Roberto Fierro Reyna, Rubén Ramírez Cárdenas,
Humberto Leal García, and Roberto Moreno Ramos, are at risk of execution in the coming months;
that their execution would cause irreparable prejudice to any rights, the interpretation of the
meaning and scope of which is in question, and that it could be that the said Mexican nationals will
be executed before the Court has delivered its judgment on the Request for interpretation and
therefore there undoubtedly is urgency. The C ourt accordingly concludes that the circumstances
require that it indicate provisional measures to pr eserve the rights of Mexico, as Article41 of its
Statute provides.
The Court indicates that it is fully aware that the federal Government of the United States
has been taking many diverse and insistent measures in order to fulfil the international obligations
of the United States under the Avena Judgment. It notes that the United States has recognized that,
were any of the Mexican nationals named in the request for the indication of provisional measures
to be executed without the necessary review and reconsideration required under the Avena
Judgment, that fact would constitute a violation of United States obligations under international
law. It recalls, in particular, that the Agent of the United States declared before the Court that “[t]o
carry out Mr. Medellín’s sentence without affording him the necessary review and reconsideration
obviously would be inconsistent with the Avena Judgment”.
The Court further notes that the United States has recognized that “it is responsible under
international law for the actions of its political subdivisions”, including “federal, state, and local
officials”, and that its own international responsibility would be engaged if, as a result of acts or
omissions by any of those political subdivisions , the United States was unable to respect its
international obligations under the Avena Judgment. It observes that, in particular, the Agent of the
United States acknowledged before the Court that “the United States would be responsible, clearly,
under the principle of State responsibility for the internationally wrongful actions of [state]
officials”.
The Court finally underscores that it regards it as in the interest of both Parties that any
difference of opinion as to the interpretation of the meaning and scope of their rights and
obligations under paragraph153(9) of the Avena Judgment be resolved as early as possible, and
that it is therefore appropriate that it ensure th at a judgment on the Request for interpretation be
reached with all possible expedition.
The Court concludes by pointing out that the decision given on the request for the indication
of provisional measures in no way prejudges any question that it may have to deal with relating to
the Request for interpretation.
* - 6 -
The full text of the operative paragraph (para. 80) reads as follows:
“For these reasons,
T HE COURT ,
I. By seven votes to five,
Finds that the submission by the United States of America seeking the dismissal of the
Application filed by the United Mexican States can not be upheld;
IN FAVOUR : PresidentHiggins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Abraham, Sepúlveda-Amor, Bennouna;
AGAINST : Judges Buergenthal, Owada, Tomka, Keith, Skotnikov;
II. Indicates the following provisional measures:
(a) By seven votes to five,
The United States of America shall take all measures necessary to ensure that
Messrs.JoséErnesto Medellín Rojas, César R oberto Fierro Reyna, Rubén Ramírez Cárdenas,
Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the
Request for interpretation submitted by the United Mexican States, unless and until these five
Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the
Court’s Judgment delivered on 31March2004 in the case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America);
IN FAVOUR : PresidentHiggins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Abraham, Sepúlveda-Amor, Bennouna;
AGAINST : Judges Buergenthal, Owada, Tomka, Keith, Skotnikov;
(b) By eleven votes to one,
The Government of the United States of America shall inform the Court of the measures
taken in implementation of this Order;
IN FAVOUR : PresidentHiggins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov;
AGAINST : Judge Buergenthal;
III. By eleven votes to one,
Decides that, until the Court has rendered its judg ment on the Request for interpretation, it
shall remain seised of the matters which form the subject of this Order.
IN FAVOUR : PresidentHiggins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov;
AGAINST : Judge Buergenthal.”
* - 7 -
JudgeBuergenthal appends a dissenting opinion to the Order of the Court; JudgesOwada,
Tomka and Keith append a joint dissenting opinion to the Order of the Court; JudgeSkotnikov
appends a dissenting opinion to the Order of the Court.
___________ Annex to Summary 2008/3
Dissenting opinion of Judge Buergenthal
1. In his dissenting opinion, JudgeBuergentha l notes that he voted in favour of the Avena
Judgment, where the Court determined that the United States had violated the Vienna Convention
on Consular Rights with regard to a group of Me xican national incarcerated in the United States
and ordered the United States to provide review and reconsideration of the convictions and
sentences of those individuals. According to Judge Buergenthal, the continuing binding character
of the Avena Judgment is not in issue in this case; what is in issue is the Court’s jurisdiction to
adopt the present Order. In his view, the Court lacks that jurisdiction and should have dismissed
the request for interpretation.
2. In the Avena case, the Court’s jurisdiction was based on the Protocol to the Vienna
Convention from which the United States regrettabl y withdrew. The Protocol can therefore no
longer provide the requisite jurisdiction for th e present Order. That is why Mexico invokes
Article 60 of the Statute of the Court, which provides in part that “[i]n the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the request of any party”. But
for Article 60 to apply to this case and, hence, for the Court to have jurisdiction to issue the Order,
Mexico must show, albeit only on a preliminary b asis, that there exists a dispute between the
parties regarding the meaning or scope of the Avena Judgment. That, according to
Judge Buergenthal, Mexico has not been able to show.
3. Mexico argues that there is a dispute b ecause the Parties disagree regarding the meaning
or scope of paragraph 153 (9) of the Avena Judgment. That paragraph reads as follows:
“[The Court] [f]inds 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 convicti ons and sentences of the Mexican nationals
referred to in [the Judgment], by taking account both of the violation of the rights set
forth in Article36 of the Convention and paragraphs138 to 141 of this Judgment”
(Avena and Other Mexi can Nationals (Mexico v. United States of America), I.C.J.
Reports 2004, p. 72, para. 153 (9)).
4. According to Mexico, paragraph153(9) of the Judgment established an obligation of
result, whereas it asserts that the United States belie ves that it only has an obligation as to means.
The United States denies Mexico’s contention a nd agrees with Mexico that the paragraph in
question imposes an obligation of result. In Judge Buergenthal’s view, Mexico has presented no
evidence whatsoever to support its contention that the Parties are in a disagreement regarding the
meaning or scope of that paragraph of the Avena Judgment. Here there is a claim by one of the
Parties only regarding the existence of a dispute that is not supported by any relevant evidence
before the Court. Judge Buergenthal concludes, therefore, that the Court’s determination that there
“appears” to be a dispute within the meaning of Article 60 is not borne out by the evidence. The
Court consequently lacks jurisdiction to issue this Order. That Order, moreover, adds nothing to
the obligations the United States continues to have under paragraph153(9) of the Avena
Judgment, namely, not to execute any of the Mexican nationals unless they have been provided the
review and reconsideration pursuant to that Judgment.
5. Judge Buergenthal believes, furthermore, that by issuing the present Order on the facts of
this case, the Court opens itself up to the future misuse for jurisdictional purposes of the Article 60 - 2 -
interpretation route which, it should be noted, imposes no time-limits for the introduction of
requests for interpretation.
Joint dissenting opinion of Judges Owada, Tomka and Keith
In their dissenting opinion, JudgesOwada, Tomka and Keith express their great regret that
they are unable to support the Court’s Order indicating provisional measures. Humanitarian
considerations which may underlie the decision cannot override the legal requirements of the
Statute of the Court.
The judges conclude that Mexico has not est ablished, as required by Article60 of the
Statute, that there is a dispute between it and the United States about the meaning or scope of the
2004 Avena Judgment. Accordingly the Application fo r interpretation, the principal proceeding
before the Court, should be dismissed. The request for provisional measures should also be
dismissed since there would be no pending proceeding to which it would be related.
The judges also observe that the Order ma de by the Court today adds no additional
protection, additional to that already provided by the Court in its 2004Avena Judgment, to the
Mexican nationals whose rights under the Vienna Convention on Consular Relations had been
breached by the United States and who are entitled to review and reconsideration of their
convictions and sentences in accordance with the 2004 Judgment of the Court.
There is no doubt, the judges say, that if any of the 51 Mexican nationals mentioned in that
Judgment is executed without receiving the review and reconsideration of his conviction and
sentence, required by the 2004Judgment, the United States will be in breach of its international
obligation as determined by the Court.
JudgesOwada, Tomka and Keith conclude by expressing their earnest trust that effective
review and reconsideration of the convictions and sentences of the Mexican nationals, as required
by the 2004 Judgment, will be provided.
Dissenting opinion of Judge Skotnikov
JudgeSkotnikov fully shares Mexico’s concer ns regarding the scheduled execution of a
Mexican national and its frustration with the Unite d States being so far unable to take measures
which would ensure its compliance with the Avena Judgment. However, he is critical of the
Court’s Order indicating provisional measures. He believes that the Court should have proceeded
differently in order to support Mexico’s ultimate goal of enforcement of the Avena Judgment.
In his view, the Court should have taken judicial notice of the United States position that it
agrees without reservations with the interpretation of the Avena Judgment requested by Mexico.
There is no lack of clarity as to the meaning or scope of the binding provisions of the Avena
Judgment. Mexico insists and the United States accepts that no death penalties should be carried
out unless and until the time the Mexican nationals in question receive
revi ew and reconsideration
in accordance with the Avena Judgment. This is the result wh ich the United States must achieve,
“by means of its own choosing” (para.153(9) of the Avena Judgment), to comply with its
obligations under the Avena Judgment. There is no ambiguity. There is no disagreement. There is
nothing for the Court to interpret. Consequently, the Court should have concluded that Mexico’s
Request for interpretation does not fall within the scope of Article60 of the Statute of the Court,
which is applicable only where a dispute exists with respect to the meaning or scope of a judgment
of the Court. - 3 -
Furthermore, the Court should have used its inherent powers to request the United States to
take all measures necessary, acting through its competent organs and authorities, state or federal, to
ensure its compliance with the Avena Judgment.
Instead of thus reminding the United States of its obligations, the Court has chosen to decide
that the Avena Judgment might require clarification and has ordered provisional measures.
Judge Skotnikov notes that these measures add nothing to the obligations of the United
States under the Judgment and therefore serve no pur pose. Moreover, these measures are to have
effect only until the Court has given its decision on the interpretation of the Avena Judgment.
Consequently, the Court’s Order is not only redunda nt, it also contains a temporal limit which is
absent from the Judgment itself. This result is a clear indication that the Court has taken a wrong
route.
Judge Skotnikov believes that the real issue is compliance with the Judgment rather than its
interpretation. The United States admits that, beca use of internal difficulties, it has so far been
unable to put in place a legal framework necessary to ensure compliance with the Avena Judgment.
That is deeply regrettable. The United States must act to comply with the Avena Judgment.
___________
Summary of the Order of 16 July 2008