INTERNATIONAL COURT OF JUSTICE
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Summary
Not an official document
Summary 2009/1
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)
Summary of the Judgment of 19 January 2009
History of the proceedings and submissions of the Parties (paras. 1-10)
The Court recalls that, on 5June 2008, theUnited Mexican States (hereinafter “Mexico”)
filed in the Registry of the Court an Application instituting proceedings against the United States of
America (hereinafter “the United States”), whereby, referring to Article60 of the Statute and
Articles 98 and 100 of the Rules of Court, it requests the Court to interpret paragraph 153 (9) of the
Judgment delivered by the Court on 31March 2004 in the case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) (I.C.J. Reports2004 , p.12) (hereinafter
“the Avena Judgment”), which reads as follows:
“153. For these reasons,
T HE C OURT , . . .
(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 thonvention and of paragr aphs138 to 141 of
this Judgment”.
On 5June 2008, after filing its Application,Mexico filed in the Registry of the Court a
request for the indication of provisional measures in order “to preserve the rights of Mexico and its
nationals” pending the Court’s judgment in the proceedings on the interpretation of the Avena
Judgment.
By an Order of 16 July 2008, the Court, having rejected the submission by the United States
seeking the dismissal of the Application filed by Mexico (paragraph80(I)) and its removal from
the Court’s General List, indicated the following provisional measures (paragraph 80 (II)): - 2 -
“(a) The United States of America shall take all measures necessary to ensure that
MessrsJ.osé Ernesto Medellín Rojas, César Roberto Fierro Reyna,
RubénRamírez Cárdenas, Humberto L eal 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 c onsistent 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);
(b) The Government of the United States of America shall inform the Court of the
measures taken in implementation of this Order.”
It also decided that, “until the Court has rendered its judgment on the Request for
interpretation, it shall remain seised of the matters” which form the subject of the Order
(paragraph 80 (III)).
By letters dated 16 July 2008, the Registrar in formed the Parties that the Court, pursuant to
Article98, paragraph3, of the Rules of Court, had fixed 29August2008 as the time-limit for the
filing of written observations by the United States on Mexico’s Request for interpretation. By a
letter dated 1 August 2008, the Agent of the United States, referring to paragraph 80 (II) (b) of the
Order of 16July2008, informed the Court of the measures which the United States “ha[d] taken
and continue[d] to take” to implement that Order. By a letter dated 28August2008,
the Agent of Mexico, informing the Court of the execution on 5 Augus2t008 of
Mr.JoséErnestoMedellínRojas in the State of Te xas, United States of America, and referring to
Article 98, paragraph 4 of the Rules of Court, requested the Court to afford Mexico the opportunity
of furnishing further written explanations for the purpose, on the one hand, of elaborating on the
merits of the Request for interpretation in the light of the written observations which the United
States was due to file and, on the other, of “amending its pleading to state a claim based on the
violation of the Order of 16 July 2008”.
On 29August2008, within the time-limit fixed, the United States filed its Written
Observations on Mexico’s Request for interpretation.
By letters dated 2September2008, the Regist rar informed the Parties that the Court had
decided to afford each of them the opportunity of furnishing further written explanations, pursuant
to Article 98, paragraph 4, of the Rules of C ourt, and had fixed 17 Sept ember and 6 October 2008
as the time-limits for the filing by Mexico and the United States respectively of such further
explanations. These were filed by each Party within the time-limits thus fixed.
In the Application, the following requests were made by Mexico:
“The Government of Mexico 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 as it is clearly stated in the Judgment by
the indication that the United States must provide ‘review and reconsideration of the
convictions and sentences’ but leaving it the ‘means of its own choosing’;
and that, pursuant to the foregoing obligation of result,
1. the United States must take any and all steps necessary to provide the reparation of
review and reconsideration mandated by the Avena Judgment; and - 3 -
2. the United States must take any and all steps necessary to ensure that no Mexican
national entitled to review and r econsideration under the Avena Judgment is
executed unless and until that review and reconsideration is completed and it is
determined that no prejudice resulted from the violation.”
In the course of the proceedings, the following submissions were presented by the Parties:
On behalf of Mexico,
in the further written explanations submitted to the Court on 17 September 2008:
“Based on the foregoing, the Government of Mexico asks the Court to adjudge
and declare as follows:
(a) That the correct interpretation of the obligation incumbent upon the United States
under paragraph 153 (9) of the Avena Judgment is that it is an obligation of result
as it is clearly stated in the Judgment by the indication that the United States must
provide ‘review and reconsideration of the convictions and sentences’;
and that, pursuant to the interpretation of the foregoing obligation of result,
(1) the United States, acting through a ll of its competent organs and all its
constituent subdivisions, including a ll branches of government and any
official, state or federal, exercising government authority, must take all
measures necessary to provide the reparation of review and reconsideration
mandated by the Avena Judgment in paragraph 153 (9); and
(2)the United States, acting through all its competent organs and all its
constituent subdivisions, including all branches of government and any
official, state or federal, exercising government authority, must take all
measures necessary to ensure that no Mexican national entitled to review and
reconsideration under the Avena Judgment is executed unless and until that
review and reconsideration is comp leted and it is determined that no
prejudice resulted from the violation;
(b) That the United States breached the Court’s Order of 16 July 2008 and the Avena
Judgment by executing José Ernesto Medellín Rojas without having provided him
review and reconsideration consistent with the terms of the Avena Judgment; and
(c) That the United States is required to guarantee that no other Mexican national
entitled to review and reconsideration under the Avena Judgment is executed
unless and until that review and reconsideration is completed and it is determined
that no prejudice resulted from the violation.”
On behalf of the United States,
in its Written Observations submitted on 29 August 2008:
“On the basis of the facts and arguments set out above, the Government of the
United States of America requests that th e Court adjudge and declare that the
application of the United Mexican States is di smissed, but if the Court shall decline to
dismiss the application, that the Court adjudge and declare an interpretation of the
Avena Judgment in accordance with paragraph 62 above.” (Para. 63.) - 4 -
Paragraph 60 of the Written Observations of the United States includes the following:
“And the United States agrees with Mexico’s requested interpretation; it agrees
that the Avena Judgment imposes an ‘obligation of result’. There is thus nothing for
the Court to adjudicate, and Mexico’s application must be dismissed.”
Paragraph 62 of the Written Observations of the United States includes the following:
“the United States requests that the Court interpret the Judgment as Mexico has
requested — that is, as follows:
[T]he obligation incumbent upon the United States under
paragraph153(9) of the Avena Judgment constitutes an obligation of
result as it is clearly stated in the Judgment by the indication that the
United States must provide ‘review and reconsideration of the
convictions and sentences’ but leaving it the ‘means of its own
choosing’”;
in the further written explanations submitted to the Court on 6 October 2008:
“On the basis of the facts and arguments set out above and in the United States’
initial Written Observations on the Application for Interpretation, the Government of
the United States of America requests that the Court adjudge and declare that the
application of the United Mexican States for interpretation of the Avena Judgment is
dismissed. In the alternative and as subsidia ry submissions in the event that the Court
should decline to dismiss the application in its entirety, the United States requests that
the Court adjudge and declare:
(a) that the following supplemental requests by Mexico are dismissed:
(1) that the Court declare that the Un ited States breached the Court’s 16July
Order;
(2) that the Court declare that the United States breached the Avena Judgment;
and
(3) that the Court order the United States to issue a guarantee of non-repetition;
(b) an interpretation of the Avena Judgment in accordance with paragraph 86 (a) of
Mexico’s Response to the Written Observations of the United States.”
Request for interpretation of the Avena Judgment
Jurisdiction of the Court in respect of interpretation (paras. 11-20)
The Court recalls that Mexico’s Request fo r interpretation of paragraph153(9) of the
Court’s Judgment of 31March2004 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
[‘contestation’ in the French version] as to the meaning or scope of the judgment, the Court shall
construe it upon the request of any party.”
The Court points out that its Order of 16 July 2008 on provisional measures “was not made
on the basis of prima facie jurisdiction” and notes that it has already stated, in that Order, that “the
Court’s jurisdiction on the basis of Article 60 of the Statute is not preconditioned by the existence - 5 -
of any other basis of jurisdiction as between the pa rties to the original case” (Order, para.44). It
also recalls that it has already indicated that “the withdrawal by the United States from the Optional
Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement
of Disputes since the rendering of the Avena Judgment had no bearing on the Court’s jurisdiction
under Article 60 of the Statute” (ibid., para. 44).
The Court notes that, in its Order of 16July 2008, it had observed in particular that “the
Court may entertain a request for interpretation of any judgment rendered by it provided that there
is a ‘dispute as to the meaning or scope of [the said] judgment’” (ibid. , para. 46). The Court then
indicates that “in the present procedure it is appropriate for the Court to review again whether there
does exist a dispute over whether the obligation in paragraph 153 (9) of the Avena Judgment is an
obligation of result”. It states that it “will also at this juncture need to consider whether there is
indeed a difference of opinion between the Parties as to whether the obligation in paragraph 153 (9)
of the Avena Judgment falls upon all United States federal and state authorities”.
Question of the existence of a dispute between the Parties (paras. 21-47)
⎯ No dispute on the nature of the obligation laid down in paragraph 153 (9) (paras. 21-28)
Having examined the written pleadings of the Pa rties, the Court finds that there is no dispute
between them as to whether paragraph153(9) lays down an obligation of result. It observes that
“this obligation of result is one which must be met within a reasonable period of time. Even
serious efforts of the United States, should they fall short of providing revi ew and reconsideration
consistent with paragraphs 138 to 141 of the Avena Judgment, would not be regarded as fulfilling
this obligation of result.”
⎯ Question of the existence of a dispute as to those upon whom the obligation of result
specifically falls (paras. 29-42)
After emphasizing that “[i]t is for the Court itself to decide whether a dispute within the
meaning of Article60 of the Statute does indeed exist (see Interpretation of Judgments Nos.7
and8 (Factory at Chorzów), Judgment No.11, 1927, P.C.I.J., SeriesA, No.13 , p.12)”, the Court
considers the possibility that the Parties hold differe nt views “as to the meaning and scope of that
obligation of result”. The Court observes that wh ether there is a dispute under Article60 of the
Statute, the resolution of which requires an interp retation of the provisions of paragraph 153 (9) of
the Avena Judgment, can be perceived in two ways.
On the one hand, it examines a variety of ar guments put forward by Mexico which “suggest
that there is a difference of perception that w ould constitute a dispute” as to those upon whom the
obligation of result specifically falls. The Court notes in particular that, according to Mexico, the
interpretation given by the United St ates 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 in 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 sets out “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 notes firstly “⎯ without necessarily agreeing with certain points made by the Supreme Court
in its reasoning regarding international law ⎯ that the Supreme Court has stated that the Avena
Judgment creates an obligation that is binding on the United States. This is so notwithstanding that
it has said that the obligation has no direct effect in domestic law, and that it cannot be given effect
by a Presidential Memorandum.” The Court adds that the United States reiterated in its Written
Observations of 29August2008 that “the federal government both ‘spoke for’ and had
responsibility for all organs and constituent elem ents of governmental authority”. The Court - 6 -
further notes that “Article 98 (2) of the Rules of Court stipulates that when a party makes a request
for interpretation of a judgment, ‘the precise point or points in dispute as to the meaning or scope
of the judgment shall be indicated’”. It observes that Mexico has had the opportunity to indicate
the precise points in dispute on several occasions, but “nonetheless remain[s] very non-specific as
to what the claimed dispute precisely is”. The Co urt observes finally that “[w]hether in terms of
meeting the requirements of Article 98 (2) of the Ru les, or more generally, it could be argued that
in the end Mexico has not estab lished the existence of any dis pute between itself and the United
States”, and that “Mexico did not specify that the obligation of the United States under the Avena
Judgment was directly binding upon its organs, su bdivisions 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 (paras. 43-47)
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 “[t]he Avena Judgment
nowhere lays down or implies that the courts in the United States are required to give direct effect
to paragraph153(9)”; and the Court observes that, according to its settled jurisprudence, a
question which was not decided in an initial Judgment “cannot be submitted to it for interpretation”
in this Judgment under Article 60 of the Statute.
The Court adds that “Mexico’s argument, as described in paragraph31 [of the present
Judgment], concerns the general question of the e ffects of a judgment of the Court in the domestic
legal order of the States parties to the case in which the judgment was delivered, not the ‘meaning
or scope’ of the Avena Judgment, as Article60 of the Court’s Statute requires”. It considers that
“the question underlying Mexico’s Request for inte rpretation is outside the jurisdiction specifically
conferred upon the Court by Article 60. Whether or not there is a dispute, it does not bear on the
interpretation of the Avena Judgment, in particular of paragraph 153 (9).”
The Court concludes from the above that it “cannot accede to Mexico’s Request for
interpretation”.
However, the Court observes that “considera tions of domestic law which have so far
hindered the implementation of the obligation incu mbent upon the United States, cannot relieve it
of its obligation”. It points out that “[a] choi ce 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”.
Additional claims made by Mexico in the context of the proceedings (paras. 48-60)
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 16July 2008; (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 16 July 2008, in the case of Mr. José Ernesto Medellín Rojas”.
The Court dismisses Mexico’s second 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”. - 7 -
Lastly, the Court reiterates that “its AvenJudgment remains binding and that the United
States continues to be under an obligation fully to implement it”; taking note of the undertakings
given by the United States of America in these proceedings, it dismisses the third of the additional
claims.
Operative clause (para. 61)
“For these reasons,
T HE C OURT
(1) By eleven votes to one,
Finds that the matters claimed by the United Me xican 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 31Ma rch2004 in the case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) , including paragraph153(9), and thus
cannot give rise to the interpretation requested by the United Mexican States;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov;
AGAINST : Judge Sepúlveda-Amor;
U(na)nimously,
Finds that the United States of America has breached the obligation incumbent upon
it under the Order indicating provisional measures ofJul2008, 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 paragraph 153 (9) of the Avena Judgment and takes note of the undertakings given
by the United States of America in these proceedings;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Buergenthal, Owada, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov;
AGAINST : JudgeAbraham;
(4) By eleven votes to one,
Declines , in these circumstances, the request of th e United Mexican States for the Court to
order the United States of America to provide guarantees of non-repetition;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov;
AGAINST : JudgeSepúlveda-Amor; - 8 -
(5) By eleven votes to one,
Rejects all further submissions of the United Mexican States.
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma,
Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov;
AGAINST : JudgeSepúlveda-Amor.”
*
Judges Koroma and Abraham append declarations to the Judgment of the Court;
Judge Sepúlveda-Amor appends a dissenting opinion to the Judgment of the Court.
___________ Annex to Summary 2009/1
Declaration of Judge Koroma
In a declaration to the Judgment clarifying his understanding as to the application of
Article 60 of the Statute in this case, Judge Koro ma expresses the view that there are at least two
differences between the Mexican and United States positions that could be considered a “dispute”
under the terms of Article 60: the Parties take a different perspective both as to whether the Avena
Judgment required that the review and reconsideration it ordered be effec tive, as well as whether
the obligations it created are subject to domestic jurisdiction in their implementation.
Referring to the Court’s conclusion that “[t]he Parties’ different stated perspectives on the
existence of a dispute reveal also different c ontentions as to whether paragraph153(9) of the
Avena Judgment envisages that a direct effect is to be given to the obligation contained therein”, he
notes that this wording is not entirely clear and interprets it to mean that the request for
interpretation is not admissible because the issu es in dispute are not within the scope of
paragraph 153 (9) of that Judgment.
Judge Koroma then offers an approach by which the Court could have found the Request for
interpretation admissible in a manner consistent with its jurisprudence. He observes that, if it were
to have done so, the Court in interpreting its Judgm ent could have concluded that the United States
has a choice of means as to how to implement its obligation under the Judgment, but that the efforts
to carry out review and reconsideration must be effective in order to be in compliance with the
Avena Judgment.
He concludes that, by reiterating the obligation of the Respondent in respect of the
individuals named in Avena , the Court has upheld the object and purpose of Article60 of the
Statute. He emphasizes that while the Court may not be in a position to interpret its Avena
Judgment, the binding force of that Judgment remain s, and certain obligations in that Judgment
have not yet been met. Under Article94 of the Charter ⎯ and in this case also fundamental
principles of human rights ⎯ international law demands nothing less than the full and timely
compliance with the Avena Judgment for all the Mexican nationals mentioned therein.
Declaration of Judge Abraham
In a declaration appended to the Judgment, Judge Abraham explains that he voted against
subparagraph (3) of the operative clause for the reason that the statements therein exceed the scope
of the Court’s jurisdiction under Article 60 of its Statute, as they do not relate to interpretation of
the Avena Judgment but to compliance with it.
Dissenting opinion of Judge Sepúlveda-Amor
In his dissenting opinion, Judge Sepúlveda-Amor states that although he is in agreement with
most of the reasoning of the Court, he cannot join in some of the Court’s conclusions. He believes
that the Court has missed an opportunity to settle issues calling for interpretation and to construe
the meaning or scope of the Avena Judgment. He sets out the following points of disagreement
with the Court’s Judgment:
1. By refraining from passing judgment on the Unite d States failure to discharge its international
obligation to comply with the Avena Judgment, the Court has ignored the need to adjudge the
consequences of internationally wrongful acts of a State. - 2 -
2. It is to be regretted that the Court did not find it necessary to determine the legal consequences
which flow from the failure of the United States to comply with the Court’s Order indicating
provisional measures and with the Avena Judgment. The international responsibility of a State
is engaged by the action of the competent organs and authorities acting in that State. Mexico
has shown that the United Stat es has an obligation of result and that, pursuant to such
obligation, the United States, acting through any a nd all organs of the State, must take all
necessary measures to provide the Avena remedy. The Court decided not to adjudge on the
effects of the United States breach of its international obligations.
3. The Court should have reaffirmed the binding force of its LaGrand and Avena Judgments and
the existence of individual rights under Article 36 of the Vienna Convention in order to dispel
all doubts that have been raised by federal and state authorities in the executive and judicial
branches of government in the United States.
4. It is insufficient to claim that the operative clause of the Avena Judgment has binding force if
its provisions become legally ineffective in the face of enforcement of the procedural default
rule in United States courts. In construing the meaning and scope of paragraph153 of the
Avena Judgment, the Court should have consider ed the underlying reasoning of the Judgment
that the procedural default rule represents a judicial obstacle that renders inoperative and
dysfunctional the rights embedded in Article 36 of the Vienna Convention.
5. An ongoing dispute exists between Mexico and the United States, not only in the sense of their
Article60 dispute over the interpretation of the obligation imposed by Avena , but also in the
sense of an Article 38 (1) dispute over several points of law and on the facts.
6. Mexico and the United States have opposing vi ews on the domestic effects of international
obligations. The Court could have advanced th e development of international law by settling
the issues raised by these conflicting interpretations.
7. The Court relies on a misreading of Mexico’s position in deciding that a dispute between the
Parties does not exist. Mexico does not conte nd that the failure to comply with the Avena
obligation is attributable only to the United St ates federal Executive; Mexico has argued that
the definitive determination to deny the judicial review and reconsideration mandated by Avena
is attributable to the United States Supreme Cour t. The Parties have a dispute as to the legal
consequence of a decision by the United States S upreme Court that an international obligation
does not constitute binding federal law without implementing legislation.
___________
Summary of the Judgment of 19 January 2009