International Court of Justice
Written Observations of the
United States of America
on the Application for Interpretation of the
Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican
Nationals
(Mexico v. United States of America)
August 29, 2008 Table of Contents
I. The United States Has Consistently
Interpreted the Avena Judgment to Impose
an “Obligation of Result”..................................................... 1
A. The President’s Memorandum ............................... 1
B. The Medellín Decision.............................................. 3
C. Efforts After the Medellín Decision....................... 4
II. Mexico’s Application Must Be Dismissed
Because There Is No Dispute for the Court to
Adjudicate.................................................................................. 9
A. The Court Cannot Proceed in the Absence
of a Dispute.................................................................... 10
B. There Is No Dispute for the Court to Hear....... 14
i. International Law Dictates That
Executive Officials of the National
Government Speak for the State on
the International Plane................................... 16
ii. Under U.S. Domestic Law, the
President and His Representatives
Speak for the United States........................... 21
C. The Fact That the Actions of U.S. State
and Federal Authorities Engage the
International Responsibility of the United
States Does Not Mean Those Authorities
Speak for the United States ...................................... 25
III. The Merits ........................................................................ 28
IV. Submissions.. .................................................................. 29
V. List of Exhibits............................................................... 32I. The United States Has Consistently Interpreted
the Avena Judgment to Impose an “Obligation of
Result” 1
1. The United States has consistently interpreted the
Avena Judgment to impose an obligation to provide
review and reconsideration of the convictions and
sentences of the individuals included in the Avena
Judgment. Like Mexico, we understand this obligation to
be one of “result,” not merely “means.” In addition, the
United States has taken actions to implement the Avena
Judgment consistent with this interpretation, and those
actions reflect the seriousnes s with which we regard our
obligation to comply with the Court’s decision.
A. The President’s Memorandum
2. The United States’ efforts to implement the Avena
Judgment began shortly after the decision. During the
time immediately after the decision, the United States
undertook a comprehensive review of the options for
implementation, including how the federal Executive
Branch could best require courts in U.S. states to provide
review and reconsideration.
3. In 2005, the President issued a memorandum to
the U.S. Attorney General directing that state courts give
effect to Avena. The memorandum, dated February 28,
2005, stated:
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 have determined, pursuant to the authority vested in
me as President by the Constitution and the laws of
1To the extent they are rele vant to Mexico’s Request for
Interpretation and the United States’ Written Observations, all facts
and points of law previously set forth by the United States, both
orally and in writing, in Avena proceedings are incorporated by
reference herein.
1 the United States of Americ a, that the United States
will discharge its international obligations under the
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
2
addressed in that decision.
4. The purpose of the President’s determination was
to provide the Mexican nationals named in the Avena
Judgment with an avenue to seek review and
reconsideration of their claims under the Vienna
Convention on Consular Relations (“Vienna Convention”)
in state courts. State courts were to determine—without
regard to procedural default rules—whether the
violations of the Convention caused actual prejudice to
the defendant at trial or sentencing. The President’s
determination was an extraordinary attempt to
implement Avena, requiring states to set aside, if
necessary, their own generally applicable procedural rules
in order to provide additional legal process to dozens of
convicted murderers.
5. After the President issued the memorandum, the
U.S. Department of Justice filed an amicus brief in the
case of Mr. José Ernesto Medellín Rojas, which was then
pending before the U.S. Supreme Court. The brief stated
that under the President’s determination, the individuals
named in Avena could file habeas 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 the violations
identified by the ICJ caused actual prejudice to the
defense at trial or at sentencing.” 3
2
George W. Bush, Memorandum for the Attorney General,
Compliance with the Decision of th e International Court of Justice in
Avena (Feb. 28, 2005). Attached at Exhibit 1.
3 Brief for the United States asAmicus Curiae at 47 (emphasis
added), Medellín v. Dretke , 544 U.S. 660 (2005) (No. 04-5928),
2 6. The Supreme Court deferred decision on the
petition to allow Texas courts again to review Mr.
Medellín’s case. In Texas courts, the United States again
filed a brief concerning Mr. Medellín’s post-conviction
application. We argued that the President’s
determination entitled Mr. Medellín to review and
reconsideration of his conviction and sentence consistent
with the Avena Judgment. The Texas Court of Criminal
Appeals rejected Mr. Medellín’s claim, concluding that the
President had acted unconstitutionally in seeking to
preempt state law, even in order to comply with the
international obligation imposed by the Avena Judgment.
B. The Medellín Decision
7. Mr. Medellín again appealed to the U.S. Supreme
Court last year, and again, th e United States argued that
under the President’s determination, state courts must
give effect to the Avena Judgment. Unfortunately, as the
Court knows, in March 2008 the Supreme Court rejected
the United States’ arguments and refused to treat the
President’s determination as binding on state courts. The
court ultimately concluded that the President lacked both
the inherent authority under our Constitution and the
requisite authority from Congress to order states to
comply with the Avena Judgment. 5
8. The Supreme Court, however, also acknowledged
the international law obligation imposed by Avena,
stating that “[n]o 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 disputes—constitutes an
international law obligation on the part of the United
6
States.” The court’s holding instead entirely concerned
available at: http://www.usdoj.gov/osg/briefs/2004/3mer/1ami/2004-
5928.mer.ami.pdf.
4Brief for United States as Amicus Curiae at 13, Ex parte Medellín,
223 S.W. 3d 315 (Tex. Crim. App. 2006) (No. AP-75, 207) (available at
http://www.debevoise.com/publications/pdf/CCA%20US%20Amicus.P
DF).
5Medellín v. Texas, 552 U.S. __, 128 S.Ct. 1346, 1356 (2008) (attached
to Mexico’s Application at Annex B).
6
Id. at 8.
3U.S. domestic law—in particular whether the Avena
decision was automatically binding domestic law and
therefore enforceable in U.S. courts, and if not, whether
the President had the authority to direct state courts to
comply with the decision. The Supreme Court concluded
that this Court’s decisions are not automatically
enforceable in U.S. courts, but reiterated its position that
those decisions are entitled to “respectful consideration”
by our courts.
C. Efforts After the Medellín Decision
9. If the United States understood Avena to impose
only an “obligation of means,” we would have stopped
there. But we did not. Indeed, our actions since the
Medellín decision clearly belie Mexico’s claim that the
United States’ conduct “confirms its understanding that
7
paragraph 153(9) imposes only an obligation of means.”
10. Since the Medellín decision, the United States has
engaged in numerous high-level discussions regarding
alternative approaches to implement the Avena
Judgment. These have included discussions with our
Mexican counterparts about finding a practical solution to
implement the “obligation of result” imposed by Avena.
11.In June, Secretary of State Rice and Attorney
General Mukasey jointly sent a letter to Texas Governor
Perry calling attention to the United States’ continuing
international law obligation and formally asking him for
“the assistance of the State of Texas in carrying out an
international legal obligation of the United States.” 8 In
addition, it requested “that Texas take the steps
necessary to give effect to the Avena decision with respect
to the convictions and sentences addressed therein.”
12.The letter was intended to start a series of
discussions between U.S. and Texas officials about how to
7Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexico Nationals (Mexico v. United
States), (Mexico v. United States), Application Instituting
Proceedings, para. 57.
8Letter from Condoleezza Rice, U.S. Secretary of State, and Michael
Mukasey, U.S. Attorney General, to Rick Perry, Governor of the State
of Texas (June 17, 2008). Attached at Exhibit 2.
4implement the Avena Judgment in the wake of the
Supreme Court’s Medellín decision. Those discussions
began shortly after the hearing before the Court on
Mexico’s request for provisio nal measures, and they have
continued until the present time. During that period,
Department of State officials have held several
discussions with representatives of the state of Texas on
how to ensure review and reconsideration of the
convictions and sentences of those Texas defendants
included in the Avena Judgment, including Mr. Medellín.
13. On July 18, Governor Perry responded to the letter
from the Secretary of State an d Attorney General. This
letter includes an important commitment on the part of
9
the Governor. The letter states that if an Avena
defendant in Texas custody has not previously received a
judicial determination of prejudice resulting from a
Vienna Convention violation and seeks such review in a
federal habeas proceeding, the state will ask the
reviewing court to address the claim of prejudice on the
merits. This commitment may enable certain Avena
defendants incarcerated in Texas to obtain review and
reconsideration of their convictions and sentences in light
of the Vienna Convention violation.
14. In a parallel effort, the Department of State has
pursued discussions with the Texas Board of Pardons and
Paroles (the “Board”)—a key organ of the Texas
government in capital cases. Only upon the positive
recommendation of the Board can the Governor grant a
commutation of sentence or a reprieve of more than 30
days. These discussions included an exploration of the
practice and procedure of the Board as well as the
requirements of the Avena Judgment. In the Avena case,
this Court recognized that “appropriate clemency
procedures can supplement judicial review and
reconsideration, in particular where the judicial system
has failed to take due account of the violation of the rights
set forth in the Vienna Convention, as has occurred in the
case of the three Mexican nationals referred to in
9
LeomRiky,eroheeofaot
Condoleezza Rice, U.S. Secretary of State, and Michael Mukasey,
U.S. Attorney General (July 18, 2008). Attached at Exhibit 3.
5 10
paragraph 114 above.” Among the Mexican nationals
mentioned in paragraph 114 are César Roberto Fierro
Reyna and Roberto Moreno Ramos, both of whom are
incarcerated in Texas and covered by the Court’s July 16
Order. This approach to the Board was also in keeping
with the Governor’s July 18 letter, which stated that
“consideration of facts showing actual prejudice as
discussed in Avena also may be urged by an offender
before the Texas Board of Pardons and Paroles in its
consideration of any clemency request that comes before
11
it.”
15.In addition, in late July, after Mr. Medellín
petitioned the Board, State Department Legal Adviser
John B. Bellinger, III wrote to the Board’s presiding
officer about Mr. Medellín’s case. The letter asked that
the Board carefully consider whether violations of the
Vienna Convention resulted in actual prejudice to Mr.
Medellín’s conviction and sentence and that, in view of
the importance of the case, the Board provide “a specific
written finding regarding whether the failure to provide
Mr. Medellín with consular information and notification
pursuant to Article 36 of the Vienna Convention resulted
12
in actual prejudice to his conviction and sentence.”
16.We understand from our discussions with Texas
officials that when considering a petition, the Board does
in fact carefully evaluate all information before it,
including claims of the sort presented by Mr. Medellín.
The Board’s consistent practice, however, is not to issue
written determinations regarding petitioners’ claims, and
the Board was unfortunately not willing to depart from
that practice in this instance. On August 4, 2008, the
Board announced that it had decided not to recommend
commutation of the death sentence or the 240-day
10Avena and Other Mexican Nationals (Mexico v. United States of
America), Judgment, I.C.J. Reports 2004, p. 66, para. 143.
11
Letter from Rick Perry, Governor of the State of Texas, to
Condoleezza Rice, U.S. Secretary of State, and Michael Mukasey,
U.S. Attorney General at 2.
12
Letter from John B. Bellinger, III, Legal Adviser to the Secretary of
State, to Rissie Owens, Presiding Officer of the Texas Board of
Pardons and Paroles (July 30, 2008). Attached at Exhibit 4.
6reprieve requested by Mr. Medellín. 13 Governor Perry
was thus without authority either to commute the death
sentence to a lesser sentence or to provide the requested
reprieve.
17. While his petition was pending before the Board,
Mr. Medellín concurrently pursued actions in Texas
courts. He again sought post-conviction relief and a stay
of execution from the Texas Court of Criminal Appeals,
arguing that the court should allow time for Congress to
take up the “ Avena Case Implementation Act of 2008,” a
bill introduced by two Members of the U.S. House of
Representatives on July 14, 2008. 14 Mr. Medellín’s
application to the court, presented by two attorneys who
also are advocates for Mexico in this case, acknowledged
universal agreement that Avena imposes an obligation of
result:
Every Member of the United States Supreme Court,
the President of the United States, the Secretary of
State, the Attorney General, Members of Congress,
and, indeed, the State of Texas have confirmed that
Applicant José Ernesto Medellín has a right arising
under treaty commitments voluntarily made by the
United States not to be executed unless and until he
receives the review and reconsideration specified by
the International Court of Justice in its judgment in
15
the Avena case.
18. On July 31, the Texas Court of Criminal Appeals
rejected Mr. Medellín’s application on state-law
procedural grounds. 16 In a concurring opinion, two judges
13 Letter from Maria Ramirez, Legal Support Director for the Texas
Board of Pardons and Paroles, to Sandra Babcock, Counsel for José
Ernesto Medellín Rojas (Aug. 4, 2008). Attached at Exhibit 5.
14Application for Stay of Execution at 4, In re José Ernesto Medellín
Rojas (Tx. Crim. App.) (No. WR-50, 191-03) [hereinafter “Stay
Application”], Excerpt attached at Exhibit 6; Second Subsequent
Application for Post-Conviction Writ of Habeas Corpus at 26, In re
José Ernesto Medellín Rojas (Tx. Crim. App.) (No. WR-50, 191-03);
Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong.
(2008).
15Stay Application at 1.
16Ex parte Medellín, No. WR-50, 191-03 (Tex. Crim. App. July 31,
2008), available at: http://www.cca.courts.state.tx.us/opinions/
7specifically addressed Mr. Medellín’s claim of prejudice.
The judges examined the evidence Mr. Medellín claimed
he would have presented had he been informed of his
right to seek consular assistance, and concluded that none
of it would have resulted in a different sentence. The
judges determined that “there is no likelihood at all that
the unknowing and inadvertent violation of the Vienna
17
Convention actually prejudiced Medellín.”
19.Mr. Medellín again sought review in the U.S.
Supreme Court, principally arguing, as he did in Texas
courts, that his execution should be stayed until
legislation could be considered. In connection with this
claim, he contended that the Mexican consulate would
have secured more qualified counsel for him if it had been
notified of his detention, and accordingly that he was
prejudiced in his sentence by the Vienna Convention
violations. Texas argued in response that the mere fact
that legislation had been introduced was insufficient to
warrant a stay of execution and that Mr. Medellín had in
any event already received review and reconsideration of
his conviction and sentence in earlier proceedings in
which state and federal courts determined that there was
no prejudice. In addition, Texas’s filings noted “the
international sensitivities presented by the Avena ruling,”
and reiterated its commitment that, if any individual who
has not received review and reconsideration of his Vienna
Convention claims “should seek such review in a future
federal habeas proceeding, the State of Texas will not only
refrain from objecting, but will join the defense in asking
the reviewing court to address the claim of prejudice on
the merits.” 18 The Executive Branch was not asked by the
Supreme Court for its views, and did not file a brief in the
case.
pdfopinioninfo2.asp?opinionid=17173&filename=wr-50,191-
03%20majority.pdf.
17Id. at 12 (Cochran and Holcomb, JJ., concurring), available at:
http://www.cca.courts.state.tx.us/opinions/pdfopinioninfo2.asp?opinio
nid=17174&filename=wr-50,191-03%20concurring%20cochran.pdf.
18
Brief in Opposition, Medellín v. Texas, 554 U.S.___ (2008) (Nos. 08-
5573, 08A98), availabl e at: http://www.scotusblog.com/wp/wp-
content/uploads/2008/08/texas-bio-05-5573.pdf.
8 20. On August 5, the U.S. Supreme Court denied Mr.
Medellín’s various requests for relief. The court
concluded that Mr. Medellín’s arguments seeking to
establish that the Vienna Convention violation required
invalidation of the state court judgment—including the
argument that counsel was inadequate due to the
violation—were “insubstantial.” 19 After the Supreme
Court’s decision, Texas carried out Mr. Medellín’s
sentence.
21. In all, 41 Mexican nationals included in the Avena
Judgment remain on death row in the United States; nine
have already obtained relief from the death penalty. No
other individuals included in Avena are presently
scheduled to be executed by Texas or any other state, and
we understand that Texas is unlikely to carry out
sentences of such individuals in the next year. During
this time, the United States will continue to work to
implement the Avena Judgment by seeking to ensure
review and reconsideration of the convictions and
sentences for all individuals covered by Avena.
II. Mexico’s Application Must Be Dismissed Because
There Is No Dispute for the Court to Adjudicate
19
Medellín v. Texas, 554 U.S.___, 77 U.S.L.W. 3073 (2008), slip op. at
2. Mr. Medellín’s claims of prejudice have been reviewed on
numerous occasions by federal and state courts. In Mr. Medellín’s
first state habeas proceeding, the Texas court concluded that Mr.
Meíle]ohwthtewasamedyayakof
notification to the Mexican consulate concerning his arrest for capital
murder.” Ex Parte Medellín, No. 675431-A (Jan. 22, 2001). A federal
court subsequently reviewed Mr. Medellín’s Vienna Convention
claim, and concluded that Mr. Mede llín “failed to show prejudice for
the Vienna Convention violation.” Medellín v. Cockrell, CA No. H-01-
4078, 2003 U.S. Dist. LEXIS 27339, at *40 (S.D. Tex. June 25, 2003).
In March 2008, the U.S. Supreme Court, while noting that it need not
decide the issue of prejudice in view of its holding, observed that Mr.
Medellín “confessed within three hours of his arrest—before there
could be a violation of his Vienna Convention right to consulate
notification.” Medellín v. Texas , 552 U.S. at ____, 128 S.Ct. at 1355
n.1. As indicated above, a concur ring opinion of the Texas Court of
Criminal Appeals also addressed Medellín’s claim that a better
lawyer procured by the Mexican Consulate would have introduced
sufficient mitigating evidence at sentencing to avoid a death
sentence. Ex parte Medellín, No. WR-50, 191-03 at 12 (Tex. Crim.
App. July 31, 2008) (Cochran and Holcomb, JJ., concurring).
9 22.Mexico’s application does not present a dispute
regarding the “meaning or scope” of the Avena Judgment;
there is nothing for the Court to adjudicate. This defect is
fatal to Mexico’s application, and whether it is regarded
as an issue of the Court’s jurisdiction under Article 60 of
the Court’s Statute, or of the application’s admissibility,
the result is the same: Mexico’s request for interpretation
must be dismissed.
A. The Court Cannot Proceed in the Absence of a
Dispute
23.Jurisdiction and admissibility are fundamental
requirements, and it is appropriate for those issues to be
determined by the Court before it proceeds to the
merits. 20 In addition, the Court has made clear that “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.” 21 This is necessary
to vindicate Article 60’s principle of res judicata , “that
22
judgments are ‘final and without appeal.’”
24.The Court’s July 16, 2008 Order regarding
provisional measures (the “July 16 Order”) did not finally
decide these threshold issues. That ruling was limited
only to the issue whether there was a sufficient basis for
the Court to indicate provisional measures. The Court
declined to dismiss Mexico’s application on grounds of a
“manifest lack of jurisdiction.” 23 In addition, the Court
20 See II Shabtai Rosenne, T HE LAW AND PRACTICE OF THE
INTERNATIONAL C OURT 1920-2005 § II.214, at 806-808 (4th ed. 2006)
(noting the existence of “antecedent issues requiring disposal by the
Court before it can deal with the merits”) (emphasis added).
21Request 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.
22Id.
23Request 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),
Order, Request for the Indication of Provisional Measures , para. 57
[hereinafter “July 16 Order”]; see also Dissenting Op. of Buergenthal,
J., para. 7 (issue is whether Mexico’s request is “manifestly
10clearly stated that its decision on provisional measures
“in no way prejudges any question that the Court may
have to deal with relating to the Request for
24
interpretation.” The Court therefore did not decide
whether Mexico’s application satisfied the jurisdictional
requirements of Article 60 of the Court’s Statute or was
otherwise inadmissible.
25. In not deciding these threshold issues, the July 16
Order is consistent with the established rule that the
Court does not finally determine jurisdiction or
admissibility at the provisional measures stage. As
explained in the Case Concerning Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo
v. Rwanda) (Jurisdiction of the Court and Admissibility of
the Application), the Court “does not normally at that
stage take a definitive decision on its jurisdiction,” but
rather “does so only if it is apparent from the outset that
there is no basis on which jurisdiction could lie, and that
it therefore cannot entertain the case.” 25 The Court thus
made clear in that case that its provisional measures
order “cannot ... amount to an acknowledgement that [the
Court] has jurisdiction.” 26 So too here: the Court’s Order
on Mexico’s request for the indication of provisional
measures did not finally resolv e issues of jurisdiction or
admissibility. It remains for the Court to decide those
threshold issues at this stage of the proceedings.
26.In this case, the issues of jurisdiction and
admissibility turn on the same basic question: whether
Mexico’s application presents a “dispute” between Mexico
and the United States regarding the “meaning or scope” of
the Avena Judgment. The requirement of a dispute
derives from two sources. First, as the United States
unfounded”); Dissenting Op. of Owada, Tomka, and Keith, JJ., para.
12 (Mexico “has not demonstrated even on a provisional basis that
there may be a dispute about the meaning or scope of paragraph 153
(9).”) (emphasis added).
24July 16 Order, para. 79 (emphasis added).
25Armed Activities on the Territoryof the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda), Judgment,
Jurisdiction of the Court and Admissibi lity of the Application, I.C.J.
Reports 2006, p. 20, para. 25.
26
Id.
11explained in oral proceedings at the provisional measures
stage, “the existence of a dispute is the primary condition
for the Court to exercise its judicial function.” 27 n
particular, Article 38 of the Court’s Statute states that
the function of the Court is “to decide in accordance with
international law such disputes as are submitted to it.”
Second, Article 60 of the Statute specifically requires that
a request for interpretation involve a dispute as to the
“meaning or scope” of the relevant judgment.
27. This Court has consistently stated that a “dispute”
requires “a disagreement on a point of law or fact, a
conflict of legal views or of interests between two
persons.” 28 Still, it is not enough to show that as a
general matter, “the interests of the two parties to such a
29
case are in conflict.” Rather, “[i]t must be shown that
the claim of one party is positively opposed by the
other.” 30 In addition, the Court has made clear that a
party’s own characterization of whether a dispute exists is
not dispositive, and that the issue is “a matter for
objective determination.” 31
28. Even if “dispute” as used in Article 60 is given a
somewhat broader meaning than elsewhere in the
Statute, an interpretation case under Article 60 must still
satisfy the basic requirement of a “dispute.” The Court’s
27Request for Interpretation of the Judgment of 31 March 2004,
Avena and Other Mexican Nationals (Mexico v. United States of
America), (Mexico v. United States of America), Public Sitting, June
19, 2008, at 3 p.m., para. 3 (June 19, 2008) (citing Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974 , p. 270-71, para.
55, Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports
1974, p. 476, para. 58.).
28See e.g. Mavrommatis Palestine Concessions, Judgment No. 2, 1924
P.C.I.J. , Series A, No. 2,p. 11; Certain Property (Liechtenstein v.
Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005 , p.
18-19, para. 24; Territorial and Maritime Dispute between Nicaragua
and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment of 8 October 2007, para. 130.
29South West Africa Cases (Ethiopia v. South Africa; Liberia v. South
Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J.
Reports 1962, p. 328.
30Id. (emphasis added).
31Interpretation of Peace Treaties, Advisory Opinion: I.C.J. Reports
1950, p. 74.
12July 16 Order concluded that a “dispute” (“contestation”
in the French text) under Article 60 “does not need to
satisfy the same criteria as would a dispute (“différend” in
the French text) as referred to in Article 36, paragraph 2,
of the Statute.” 32 The Court nevertheless applied the
established rule that, even under Article 60, interested
States must have “in fact shown themselves as holding
opposing views in regard to the meaning or scope of a
judgment of the Court.” 33 The broader latitude afforded
by the French term contestation may have allowed the
Court to discern “opposing views” sufficient for the
provisional measures stage. 34 It cannot, however, provide
a basis for the Court to proceed once it becomes evident,
upon full consideration of the questions of jurisdiction and
admissibility, that there is no dispute whatsoever
regarding the meaning or scope of the Avena Judgment.
29.In addition to the requirement of a “dispute”, a
request for interpretation under Article 60 of the Statute
must satisfy a second condition. As the Court explained
in the Asylum Case, the “real purpose of the request must
be to obtain an interpre tation of the judgment.” 35 To
allow a request to proceed on any other basis “would
nullify the provision of the article that the judgment is
final and without appeal.” 36 Insofar as there is no
dispute, Mexico’s application must be understood not as a
request for clarification, but rather as an effort to enlist
the Court in the role of monitoring and enforcing its
judgments. As the Court is aware, the UN Charter does
not assign that responsibility to the Court, and to the
extent the Charter speaks to the issue at all, it allows a
party to a judgment to “hav e recourse to the Security
Council” in certain circumstances. 37
32July 16 Order, para 53.
33Id., para. 54; see also Interpretation of Judgments Nos. 7 and 8
(Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No.
13, pp. 10-11.
34July 16 Order, para 55.
35Request for Interpretation of the Judgment of 20 November1950 in
the Asylum Case, Judgment, I.C.J. Reports 1950, p. 402.
36
Id.
37U.N. CHARTER art. 94(2).
13 30. The import of these principles is clear. If Mexico’s
application does present a genuine dispute, the Court
must define the competing interpretations and decide the
merits. If, as we contend, it does not, the Court must
dismiss Mexico’s application.
B. There Is No Dispute for the Court to Hear
31. As the United States made clear at the provisional
measures stage, there is simply no dispute regarding
Mexico’s requested interpretation. Mexico’s application
asks the Court to adjudge and declare:
that the obligation incumbent upon the United
States under paragraph 153(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
(2) the United States must take any and all steps
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 completed and it is
determined that no prejudice resulted from the
violation.38
32.As we have said, the United States agrees with
this interpretation of the Avena Judgment. We agree that
the Judgment imposes an “obligation of result,” and not
merely an “obligation of means.” In its July 16 Order, the
Court appeared to accept that “both Parties regard
38Request 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),
Application Instituting Proceedings, para. 59.
14paragraph 153(9) of the Avena Judgment as an
international obligation of result.” 39
33. In its concluding remarks on provisional measures,
Mexico shifted course, acknowledging the United States’
agreement with its requested interpretation and claiming
instead that it was not clear that “all of the constituent
parts of the United States share the U.S. Administration’s
stated view regarding the interpretation and scope of the
Avena Judgment.” 40 According to Mexico, by scheduling
Mr. Medellín’s execution, the state of Texas
“unmistakably communicated its disagreement with
Mexico’s interpretation of the Judgment.” 41 Itshs
asserted disagreement that now appears to form the basis
of Mexico’s claim of a dispute.
34I.n this regard, the Court’s July 16 Order
concluded that the Parties “apparently hold different
views as to the meaning or scope of that obligation of
result, namely, whether that understanding is shared by
all United States federal and state authorities and
whether that obligation falls upon those authorities.” 42
39
July 16 Order, para. 55. Mr. Medellín’s lawyers, who participated
in preparing Mexico’s case, have agreed there is no dispute. As his
case proceeded through Texas and U.S. federal courts, his lawyers
stated on more than one occasion that there is general agreement
among U.S. state and federal authorities that the United States is
obligated under the Avena decision to ensure review and
reconsideration for the Avena defendants. See, e.g. , Second
Subsequent Application for Post-Conviction Writ of Habeas Corpus at
24, In re José Ernesto Medellín Rojas (Tx. Crim. App.) (No. WR-50,
191-03) (“every federal and state actor agrees that there is a binding
international legal obligation to provide [Mr. Medellín review and
reconsideration]”); Stay Application at 1 (“Every Member of the
United States Supreme Court, the President of the United States, the
Secretary of State, the Attorney General, Members of Congress, and,
indeed, the State of Texas have confirmed that Applicant José
Ernesto Medellín has a right . . . not to be executed unless and until
he receives the review and reconsideration specified by the
International Court of Justice in its judgment in the Avena case.”).
40
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),
Public Sitting, June 20, 2008, at 10 a.m., para. 2.
41
Id. at para. 4.
42July 16 Order, para. 55.
15According to the Order, the existence of these “different
views” permitted the Court to “deal with the Request for
interpretation” and to address the r43uest for the
indication of provisional measures.
35M. exico’s concluding remarks and the Court’s
Order thus identified two possible grounds for
disagreement. The first concerns whether, despite the
assurances of the United States in these proceedings,
other U.S. governmental authorities at the federal or state
level agree with Mexico’s requested interpretation. The
second concerns whether the obligation imposed by the
Avena Judgment falls upon those other authorities.
While these issues may have presented the Court with
prima facie jurisdiction sufficient to proceed with
provisional measures, upon careful examination it is
evident that they do not satisfy the legal requirement of a
dispute.
i. International Law Dictates That Executive
Officials of the National Government Speak
for the State on the International Plane
36. Mexico appears to claim that a dispute within the
meaning of Article 60 may arise if it is determined that a
constituent state of the United States does not share the
interpretation requested by Mexico. That is simply
incorrect. It is established under international law that
certain officials of the national government have
authority to speak for the State on the international
plane. This principle is recognized in international treaty
law and diplomatic practice, in the Statute of the Court,
and in the Court’s jurisprudence.
37. The entire conduct of diplomatic relations among
States rests on international law and practice recognizing
the authority of certain representatives of the national
government to speak on behalf of a State in its
international affairs. “[I]t is a well-established rule of
international law that the Head of State, the Head of
Government and the Minister for Foreign Affairs are
deemed to represent the State merely by virtue of
exercising their functions, including for the performance,
43Id. at para. 57.
16on behalf of the said State, of unilateral acts having the
force of international commitments.” 44 aI
established that “[a]mbassadors and other diplomatic
agents carry out their duties under [the] authority” of the
foreign minister or head of government and their acts are
capable of binding the State in appropriate
circumstances. 45
38. The power of heads of State and other appropriate
individuals “to act on behalf of the State in its
international relations is universally recognized , and
reflected in, for example, Article 7, paragraph 2(a), of the
Vienna Convention on the Law of Treaties.” 46 Article 7 of
the Vienna Convention on the Law of Treaties (VCLT)
regarding full powers sets out who may appropriately
represent a State for the purp ose of concluding treaties. 47
It expressly identifies those executive officials of the
national government that are deemed to speak on behalf
of the State “for the purpose of performing all acts
relating to the conclusion of a treaty”—namely, “Heads of
State, Heads of Government and Ministers for Foreign
Affairs.” 48 These officials are deemed to represent the
State “[i]n virtue of their functions.” In addition, “certain
heads of diplomatic missions and accredited
44 Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda) , Judgment,
Jurisdiction of the Court and Admissibility of the Application , I.C.J.
Reports 2006, p. 27, para. 46.
45Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), Judgment, I.C.J. Reports 2002, p. 21, para. 53.
46 Application of the Convention on the Prevention of the Crime of
Genocide, Provisional Measu res, I.C.J. Reports 1993, p. 11, para. 13
(emphasis added).
47Although the United States is not a party to the Vienna Convention
on the Law of Treaties, it considers Article 7 of the Convention
regarding “full powers” to be reflective of customary international
law. Article 2.1(c) of that Convention defines “full powers” to mean “a
document emanating from the competent authority of a State
designating a person or persons to represent the State for
negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty .” (Emphasis
added.)
48Vienna Convention on the Law of Treaties, adopted May 23, 1969,
art. 7(2)(a), 1155 U.N.T.S. 331.
17representatives” are “[i]n virtue of their functions”
considered as representing their State “for the purpose of
49
adopting the text of a treaty.”
39. In addition to the VCLT, other international law
authorities recognize the power of heads of State,
ministers of foreign affairs, and other officials acting
within their area of comp etence to authoritatively
represent their governments in international matters.
For example, the Vienna Convention on Diplomatic
Relations defines the functions of the diplomatic mission
to include “representing the sending State in the receiving
State” and “negotiating with the Government of the
receiving State.” 50 United Nations practice reflects the
same principle. The Rules of Procedure for the General
Assembly require that credentials for the State
representatives specified in Article 9 of the Charter be
“issued either by the Head of the State or Government or
by the Minister of Foreign Affairs.” 51 Indeed, State
practice shows that “declarations creating legal
obligations for States are quite often made by heads of
State or Government or ministers for foreign affairs
without their capacity to commit the State being called
into question.” 52
40.These black-letter principles are reflected in the
statute and practice of the Court. Under Article 34 of the
Statute, “[o]nly states may be parties in cases before the
53
Court.” There is no provision for according a
governmental sub-entity of the State the status of a party.
49 Vienna Convention on the Law of Treaties, art. 7(2)(b).
50Vienna Convention on Diplomatic Relations, April 18, 1961, art.
3(1)(a), (c), 23 U.S.T. 3227, 500 U.N.T.S. 95.
51Rules of Procedure of the General Assembly, R. 29, U.N. Doc.
A/520/Rev. 17 (2008).
52
Report of the International Law Commission to the General
Assembly, 61 U.N. GAOR Supp. (No. 10) at 373, commentary,
principle 4, para. 2, U.N. Doc. A/ 61/10 (2006) (emphasis added).
Guiding Principle Four specifies that a unilateral declaration can
bind the State internationally “only if it is made by an authority
vested with power to do so” and that “heads of State, heads of
Government and ministers for foreign affairs” are competent to bind
the State “by virtue of their functions.” Id. at 372.
53I.C.J. Statute, Art. 34(1) (emphasis added).
18In addition, Article 42(1) of the Court’s Statue requires
parties to appoint an agent to represent them before the
Court. Although the choice of an agent is generally a
matter for the State, “[t]he Court will regard as
competent authority for this purpose one of the high
officers of State mentioned in Article 7 of the Vienna
Convention on the Law of Treaties of 1969, normally the
minister for foreign affairs.”54
41. The Court’s cases have likewise recognized that
certain persons or entities should not be regarded as
speaking for the State in the international sphere. In the
Gulf of Maine case, for example, the Court rejected
Canada’s claim that a letter from a mid-level official in
the United States Bureau of Land Management regarding
a maritime border represented the views of the United
States government. 55 Under the circumstances, the Court
stated, it was not appropriate for Canada “to rely on the
contents of a letter . . . as though it were an official
declaration of the United States Government on that
country’s international maritime boundaries.” 56 e
underlying reason, of course, is that the letter did not
necessarily have the imprimatur of those who are deemed
to speak with authority on behalf of the State. The same
principle applies to Mexico’s application: the words or
actions of officials of other fe deral government entities or
of a U.S. state cannot be deemed to reflect the official
views of the United States government.
42.Two further brief observations are warranted.
First, in a federal State like the United States, it is
generally the national government that determines the
State’s relations with foreign States. Oppenheim ex-
plains:
When, as happens frequently, a federal state assumes
in every way the external representation of its member
states, so far as international relations are concerned,
the member states make no appearance at all. This is
54III Shabtai Rosenne, T HE LAW AND PRACTICE OF THE
INTERNATIONAL C OURT 1920-2005 § III.277, at 1120 (4th ed. 2006).
55Delimitation of the Maritime Boundary in the Gulf of Maine Area ,
Judgment, I.C.J. Reports 1984, p. 307, para. 139.
56
Id.
19 true of the United States of America and all those
other American federal states whose constitution is
modeled on that of the United States. Here the
member states are sovereign too, but only with regard
to internal affairs. All their external sovereignty being
absorbed by the federal state, they are not
international persons at all. 57
43. Second, as a matter of international law and
practice, it is federal executive officials that represent the
State on the international plane. “For the purposes of
Article 60 of the Statute of the Court, as generally in
international law and practice, it is the Executive of the
State that represents the State and speaks for it at the
international level. Other organs, whether part of the
central government or of a territorial unit, unless
otherwise authorized, do not.” 58 The VCLT, of course,
deems officials who exercise executive functions—“Heads
of State, Heads of Government and Ministers for Foreign
Affairs”—to represent the State “in virtue of their
59
functions.”
44.In short, under established international law,
whether Texas, or any other U.S. state, has a different
interpretation of the Court’s judgment is irrelevant to the
issue before the Court. Similarly irrelevant are any
interpretations by officials of other entities of the federal
government that are not deemed by international law to
speak on behalf of the United States. The United
States—through its authorized representatives in this
Court—has agreed with Mexico’s requested
interpretation; the Avena Judgment, we agree, imposes on
the United States an “obligation of result,” and not merely
an “obligation of means.” Officials of Texas, or any other
U.S. state, do not speak for the United States on the
international plane, and nothing they have said or done
can constitute a difference of views as to the meaning or
57O PPENHEIM ’S INTERNATIONAL LAW 252 (Sir Robert Jennings &
Arthur Watts eds., 9th ed. 1992).
58
July 16 Order , Dissenting Op. of Owada, Tomka, and Keith, JJ.,
para. 17.
59
Vienna Convention on the Law of Treaties, art. 7(2)(a).
20scope of the Avena Judgment as between the only parties
before the Court—Mexico and the United States.
45.Mexico’s contrary position—that the actions of
officials of any of the 50 U.S. states can call into question
the definitive position of the U.S. government regarding
the Avena Judgment—invites absurd consequences. For
one, States would have no basis to rely on the statements
of representatives of other States’ national governments.
No matter that the foreign minister has given her word,
purporting to bind the State—it can be undone, or at least
undermined, by disagreement expressed by a subordinate
local official. Mexico’s principle, if applied, would render
States’ relations with each other inherently unstable.
Could the governor of a state in a federal system call into
question the national government’s commitment to an
international treaty, possibly creating by his words alone
an actionable dispute? Could the views of a city mayor
supplant the President’s interpretation of the U.N.
Charter? Could a floor statement by a member of a
parliament create new international law obligations
binding on the nation? Of course not. Likewise, no U.S.
state, and no federal entity other than the Executive, can
be treated as competent to speak for the United States.
ii. Under U.S. Domestic Law, the President
and His Representatives Speak for the United
States
46.Under international law, representatives of the
President and the Secretary of State are deemed to speak
on behalf of the United States, and the Court need not
look to U.S. domestic law to resolve that issue. Even so,
U.S. domestic law clearly vests the President with the
authority to conduct the United States’ relations with
foreign States.
47. The U.S. Constitution expressly assigns authority
to conduct the foreign relations of the United States
exclusively to the national government, in particular to
the President. The U.S. Constitution grants the
President the powers to serve as “Commander in Chief of
the Army and Navy,” “make Treaties” and “appoint
Ambassadors [and] other public Ministers and Consuls”
with the advice and consent of the Senate, and “receive
21Ambassadors.” 60 These authorities clearly comprise the
power to speak authoritativel y on behalf of the United
States in international fora. 61
48. Moreover, the U.S. Constitution specifically denies
certain foreign affairs powers to the states. Article I,
Section 10 of the Constitution states that “[n]o state shall
enter into any treaty,” and provides further that states
may not enter into agreements with other states or with
foreign nations without the consent of the federal
62
government. The Constitution also includes restrictions
on the states’ “laying any Imposts or Duties on Imports or
Exports,” and “engaging in War.” 63
49. The decisions of the U.S. Supreme Court confirm
the national government’s authority over foreign affairs,
to the exclusion of the states. As the court has explained,
“in international relations and with respect to foreign
intercourse and trade the people of the United States act
through a single government with unified and adequate
national power .” 64 In our system, “[t]he Federal
Government ... is entrusted with full and exclusive
responsibility for the conduc t of affairs with foreign
sovereignties.” 65 It necessarily follows that “power over
external affairs is not shared by the States.” 66
5In. addition, the U.S. Supreme Court has
repeatedly recognized the President’s authority to conduct
U.S. diplomatic relations. The court has declared that
“the President alone has the powe r to speak or listen as a
60U.S. Const. Art. II, §§ 2, 3.
61
In addition, certain related po wers are assigned to Congress,
including the authority to “provide for the common Defence,”
“regulate Commerce with foreign Nations,” “define and punish
Piracies and Felonies committed on the high Seas, and Offenses
against the Law of Nations,” and “declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land
and Water.” U.S. Const. Art. I, § 8, Cls. 1, 3, 10, 11.
62U.S. Const., Art. I, §10.
63Id.
64Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979).
65
Hines v. Davidowitz, 312 U.S. 52, 63 (1941).
66United States v. Pink, 315 U.S. 203, 233 (1942).
22representative of the nation,” and that he is “the sole
organ of the federal government in the field of
international relations.” 67 The President is “the
constitutional representative of the United States in its
68
dealings with foreign nations.” In short, the court has
“recognized ‘the generally accepted view that foreign
policy was the province and responsibility of the
69
Executive.’”
51.In this respect, the United States is not unique.
Many States assign the power to speak on behalf of the
State in international affairs to the federal executive.
See, e.g. , Coordinated Constitution of the Kingdom of
Belgium, Article 167(1) (the King directs international
relations); Constitution of the Federative Republic of
Brazil, Article 84 VII (the President has exclusive
authority to maintain relations with foreign States);
Constitution of the French Republic, Article 20 (the
executive “determines and conducts the policy of the
Nation”) (“Le Gouvernement détermine et conduit la
politique de la Nation.”); Basic Law of the Federal
Republic of Germany, Article 32 (Relations with foreign
states shall be conducted by the Federation not the
Lander or constituent states), Article 59(1) (the President
shall represent the Federation in matters of international
law); Constitution of the Russian Federation, Article 80(4)
(“The President of the Russian Federation, as the Head of
State, shall represent the Russian Federation . . . in its
international relations”), Article 86 (The President of the
Russian Federation shall direct foreign policy);
Constitution of the Slovak Republic, Articles 101(1),
102(1)(a) (the President repr esents the Republic in
matters of foreign affairs).
52.In light of the well-established authority of the
U.S. federal executive to spea k on behalf of the United
States, there is no reason to inquire into Congress’s or the
Supreme Court’s understanding of the Avena Judgment.
67United States v. Curtiss-Wr ight Export Corp., et al. , 299 U.S. 304,
319-20 (1936).
68United States v. Louisiana, 363 U.S. 1, 35 (1960).
69Department of Navy v. Egan , 484 U.S. 518, 529 (1988) (quoting
Haig v. Agee, 453 U.S. 280, 293-94 (1981)).
23Neither entity has the power to speak authoritatively for
the United States on the international plane. Indeed, it is
hard to imagine, as a practical matter, how they could.
Congress consists of 535 individual members representing
various states and local districts throughout the country.
If Congress can ever be said to act with one voice, it is
generally through legislation—and even then, Congress’s
actions usually have no legal consequence unless the
70
President approves. Accordingly, even if it were
relevant, discerning the understanding of Congress
regarding the “meaning or scope” of the Avena Judgment
would be a virtually impossible task. The nature of the
Supreme Court involves different limitations that make it
equally unsuited to speak fo r the United States on the
international plane. Most important, the court has
authority only to decide particular cases that come before
it; it has no power to seek out and pronounce on questions
of international law in the abstract.
53.inally, to the extent the Supreme Court’s
understanding can be discerned, it would have to be
regarded as sharing Mexico’s requested interpretation.
The Supreme Court stated in the Medellín decision that
“[n]o one disputes that the Avena decision . . . constitutes
an international law obligation on the part of the United
States,” and the decision appeared to take it for granted
that the Avena decision imposed an obligation of result. 71
As for Congress, nothing can be gleaned from the fact that
it has not enacted legislation. There are countless
reasons why Congress, or any legislative body, might not
act on a particular issue, including the fact that other
pressing issues may take priority. In any event, two
legislators have offered a bill entitled the “Avena Case
Implementation Act of 2008” which would provide a
judicial remedy for persons “whose rights are infringed by
70The U.S. Constitution provides that legislation may be enacted over
the President’s objection if two-thirds of each house of Congress
approve. U.S. Const. Art. I, § 7.
71
Medellín v. Texas, 552 U.S. __, 128 S.Ct. 1346, 1355 (Stating that,
having found that the United States violated Article 36(1)(b) of the
Vienna Convention, “[i]n the ICJ's [ Avena] determination, the United
States was obligated ‘to provide, by means of its own choosing, review
and reconsideration of the convictions and sentences of the [affected]
Mexican nationals.’”) (emphasis added).
24a violation by any nonforeign governmental authority of
article 36 of the Vienna Convention on Consular
Relations.” 72
C. The Fact That the Actions of U.S. State and
Federal Authorities Engage the International
Responsibility of the United States Does Not
Mean Those Authorities Speak for the United
States
54. Despite a mountain of legal authority establishing
that the President, the Secretary of State, and their
representatives speak authoritatively on behalf of the
United States on the international plane, Mexico claims
that Texas’s understanding of the Avena Judgment
nevertheless gives rise to a real dispute because the
“actions of Texas engage the international responsibility
of the United States.” 73 That argument confuses the
principle of state responsibility with the question of who
speaks for the state. Under international law, the
question of whose actions implicate a State’s international
responsibility is clearly distin ct from the question of who
speaks authoritatively for the State on the international
plane.
55. The law of state responsibility dictates that actions
of governmental organs may be attributed to the State
under international law. As the Commentary to the Draft
Articles of State Responsibilit y states, “the first principle
of attribution for the purposes of State responsibility in
international law [is] that the conduct of an organ of the
State is attributable to that State,” and “[t]he principle of
the unity of the State entails that the acts or omissions of
all its organs should be regarded as acts or omissions of
the State for the purposes of international
responsibility.”74 According to this principle, the United
72H.R. 6481, 110th Cong. (2008).
73Request 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),
Public Sitting, June 20, 2008, at 10 a.m., para. 3.
74Commentary to Draft Articles on Re sponsibility for Internationally
Wrongful Acts, [2001] Y.B. Int’l L. Comm’n 40-41, commentary, art. 4,
paras. (1), (5), U.N. Doc. A/CN.4 /SER.A/2001/Add.1 (Part 2). As the
commentary explains in paragraphs 5 and 6 to Article 4, “The
25States’ international responsibility is implicated by a U.S.
state carrying out the sentence of an Avena defendant
without that person having received the review and
reconsideration mandated by the Avena Judgment.
56. This does not mean, however, that that same U.S.
state represents the United States internationally or
speaks for the United States on the international plane.
The Commentary to Chapter II of the Draft Articles
(Articles 4-11) makes this distinction equally clear: “The
question of attribution of conduct to the State for the
purposes of responsibility is to be distinguished from
other international law processes by which particular
organs are authorized to enter into commitments on
75
behalf of the State.” “Such rules have nothing to do with
attribution for the purposes of State responsibility.” 76
57.he judges of this Court who would have
dismissed this case for lack of jurisdiction at the
provisional measures stage noted this critical distinction.
See Op. of Buergenthal, J. para. 13 (“The United States
would, of course, be liable under international law for the
failure of Texas or, for that matter, any other state of the
United States to comply with the Avena Judgment, but
only the United States Government is authorized under
domestic law and international law to speak for the
United States on the international plane.”); Op. of Owada,
Tomka, and Keith, JJ., paras. 16, 17 (“The proposition of
law on which Mexico relies is no t relevant in this context.
. . . The issue of attribution is distinct from the question of
principle of the unity of the State en tails that the acts or omissions of
all its organs should be regarded as acts or omissions of the State for
the purposes of international responsibility. . . . [T]he reference to a
State organ in article 4 is intended in the most general sense. It is not
limited to the organs of the central government, to officials at a high
level or to persons with responsibility for the external relations of the
State. It extends to organs of government . . . at whatever level in the
hierarchy, including those at provincial or even local level. . . .” As
relevant to this case, the United States also recognizes that, as
provided in Article 3 of the Draft Articles, “[t]he characterization of
an act of a State as internatio nally wrongful is governed by
international law . . . [and] is not af fected by the characterization of
the same act as lawful by internal law.”
75Id. at 39, commentary, Ch. II, para. (5).
76
Id. (emphasis added).
26who is authorized to speak for the State.”); see also Op. of
Skotnikov, J., para. 5.
58. Of course, throughout this proceeding, the United
States has explicitly recognized that it is internationally
responsible for the actions of its political subdivisions.
There is no real issue, then, regarding whether the
obligation to comply with Avena “falls upon all United
77
States federal and state authorities.” The international
obligation falls on the United States as a whole. And the
actions of all U.S. state and federal authorities with
respect to that obligation engage the international
responsibility of the United States.
59.Mexico’s argument—that Texas speaks for the
United States because it s actions engage U.S.
international responsibility—would turn international
law on its head. On Mexico’s view, a U.S. state or local
official whose actions would engage U.S. international
responsibility would thereby be deemed to speak for the
United States. The local police authorities who failed to
comply with the Vienna Convention in cases addressed by
Avena would be deemed competent to state the official
U.S. interpretation of the Convention. Or, in reviewing
an asserted violation of a boundary agreement, the Court
might look not to the position presented to the Court by
the agent of the national government, but rather to the
views of the state officials whose actions gave rise to the
dispute in the first instance. These are the implications
of Mexico’s position. It simply cannot be the law.
60. The law, rather, is this: The actions of U.S. states
and other government entities engage the international
responsibility of the United States, but those entities do
not speak for it. The Presiden t, Secretary of State, and
their representatives are competent to speak
authoritatively on behalf of the United States on the
international plane, including in this Court. 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.
77July 16 Order, para. 55.
27III. The Merits
61. As explained above, there is no basis for the Court
to reach the merits in this case. In addition, the U.S.
Supreme Court’s decisions in the Medellín cases and
78
others make clear that any decision reiterating the
United States’ obligation to comply with Avena will not
change the domestic U.S. legal situation. A decision on
the merits will not be binding U.S. domestic law and
therefore will not be directly enforceable in U.S. courts,
and it will not provide the President any additional
authority to implement Avena. As a practical matter, a
fresh decision by this Court will again add nothing to the
original Avena Judgment.
62.Nevertheless, should the Court decide to engage
the dispute on the merits, 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 paragraph 153(9) of the Avena Judgment
constitutes an obligation of result as it is clearly stated
in the Judgment by the in dication that the United
States must provide “review and reconsideration of the
convictions and sentences” but leaving it the “means of
its own choosing.” 79
Consistent with this interpretation, it is the United
States’ understanding that the Avena Judgment requires
it to take measures to provide the review and
reconsideration mandated by the Judgment, and to
ensure that, with respect to any individual included in the
Judgment, no sentence is carried out unless and until
that individual has received such review and
reconsideration.
78Sanchez-Llamas v. Oregon, 548 U.S. 331, 346-47 (2006); Breard v.
Greene, 523 U.S. 371, 375-76 (1998).
79
Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexico Nationals (Mexico v. United
States), (Mexico v. United States), Application Instituting
Proceedings, para. 59.
28IV. Submissions
63. On the basis of the facts and arguments set out
above, the Government of the United States of America
requests that the Court adjudge and declare that the
application of the United Mexican States is dismissed, 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.
293031 List of Exhibits
1. Memorandum from the President of the United States
to the United States Attorney General (February 28,
2005).
2. Letter from Condoleezza Rice, United States Secretary
of State, and Michael Mukasey, United States
Attorney General, to Rick Perry, Governor of the state
of Texas (June 17, 2008).
3. Letter from Rick Perry, Governor of the state of Texas,
to Condoleezza Rice, United States Secretary of State,
and Michael Mukasey, United States Attorney
General (July 18, 2008).
4. Letter from John B. Bellinger III, Legal Adviser to the
Secretary of State, to Rissie Owens, Presiding Officer
of the Texas Board of Pardons and Paroles (July 30,
2008).
5. Letter from Maria Ramirez, Legal Support Director for
the Texas Board of Pardons and Paroles, to Sandra
Babcock, Counsel for José Ernesto Medellín Rojas
(Aug. 4, 2008).
6. Application for a Stay of Execution, In re José Ernesto
Medellín Rojas, Texas Court of Criminal Appeals (July
28, 2008), Excerpted Pages 1-6 (document deposited in
full to the Registry).
32
Written Observations by the United States of America