Case Concerning Avena and Other Mexican Nationals
(United Mexican States v. United States of America)
REQUEST FOR THE INDICATION OF
PROVISIONAL MEASURES OF PROTECTION
SUBMITTED BY THE GOVERNMENT OF
THE UNITED MEXICAN STATES
The Hague, 5 June 2008
1. I have the honor to refer to the Request for Interpretation submitted to the
Court this day in the name of the United Mexican States. Mexico has invoked
the Court’s jurisdiction under Article 60 of the Statute of the Court to seek
clarification of the nature of the remedial obligations incumbent upon the
United States under paragraph 153(9) of the Judgment on the merits in the
Case Concerning Avena and Other Mexican Nationals (United Mexican States
v. United States of America) (“Avena”).
2. In accordance with Article 41 of the Statute of the Court and Articles 73, 74,
and 75 of the Rules of Court, I hereby respectfully submit an urgent request
that the Court indicate provisional measures to preserve the rights of Mexico
pending the outcome of these proceedings.
S TATEMENT OF F ACTS
3. As more fully set forth in the accompanying Request for Interpretation, which
is incorporated in its entirety herein, Mexico today invoked this Court’s
jurisdiction to interpret the operative language of theAvena Judgment to
provide guidance as to the scope and meaning of the remedial obligations
incumbent upon the United States. Specifically, Mexico asks that this Court
clarify that the obligation set forth at paragraph 153(9) of the Avena Judgment
is an obligation of result and that no Mexican national may be executed
without having received review and reconsideration consistent with the terms
of the Judgment.
4. In order to preserve the rights of Mexico and its nationals pending the
outcome of these proceedings, Mexico hereby requests the indication of
provisional measures prohibiting the execution of five Mexican nationals in
danger of imminent execution.
5. On 5 August 2008, one Mexican national, José Ernesto Medellín Rojas, will
face execution by lethal injection unless the Court indicates provisional
measures. Another national, César Roberto Fierro Reyna, could receive, under
applicable provisions of domestic law, an execution date on as little as thirty
days notice. Three additional Mexican nationals—Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos—could receive execution
dates on ninety days notice. All of these men are incarcerated under sentence
of death in the State of Texas, which has executed more persons than any
other state of the United States.
THE A UTHORITY OF THE C OURT
6. This Court has the undoubted authority to issue provisional measures to ensure
the status quo pending resolution of the dispute before it. Article 41(1) of the
Statute of the Court vests the Court with “power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken to
preserve the respective rights of either party.” Orders of provisional measures
pursuant to Article 41 establish binding obligations. LaGrand (Germany v.
United States of America), Merits, Judgment of 27 June 2001, I.C.J. Reports
2001, p. 506, para. 109.
7. Three times before, including in this case, the Court has indicated provisional
measures to prevent executions in cases involving claims by States whose
nationals were subject to execution in the United States as a result of domestic
criminal proceedings conducted in violation of the Vienna Convention on
Consular Relations. In the Case Concerning the Vienna Convention on
Consular Relations (Paraguay v. United States of America), the Court
indicated provisional measures to prevent the execution of Paraguayan
national Angel Francisco Breard pending the final judgment on the merits, and
in LaGrand, the Court afforded the same relief to prevent the execution of the
German national Walter LaGrand. In both instances, this Court directed the
United States to take “all measures at its disposal” to prevent the executions.
Case Concerning the Vienna Convention, Provisional Measures, Order of 9
April 1998, I.C.J. Reports 1998, p. 258, para. 41; LaGrand, Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 16, para. 29.
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Consistent with the Court’s Order on Mexico’s prior Request for the Indication of
Provisional Measures in this case, Mexico is only seeking the indication of
provisional measures respecting those of its nationals who have exhausted all
opportunities for appellate review and are in immediate danger of being
scheduled for execution. Avena, Provisional Measures, Order of 5 February
2003, I.C.J. Reports 2003, p. 91, para. 56. Also consistent with that Order,
Mexico reserves its right to seek the indication of provisional measures in respect
of other of its nationals in the event that they are placed in imminent danger of
execution. Id.
28. In earlier proceedings in this case, the Court went further to direct that the
United States take “all measures necessary” to prevent the execution of the
Mexican nationals concerned, including two of the individuals named in this
Request. Avena, Provisional Measures, Order of 5 February 2003, p. 91-92,
para. 59. At the time, Messrs. Fierro and Moreno Ramos were already at risk
of having execution dates set for thirty and ninety days, respectively, and the
Court determined that “their execution would cause irreparable prejudice to
any rights that may subsequently be adjudged by the Court to belong to
Mexico.” Avena, Provisional Measures, Order of 5 February 2003, p. 91,
para. 55; see also Case Concerning the Vienna Convention, Provisional
Measures, Order of 9 April 1998, p. 257, para. 37; LaGrand, Provisional
Measures, Order of 3 March 1999, p. 15, para. 24; Merits, Judgment of 27
June 2001, p. 487, para. 57.
9. Just as this Court acted pursuant to Article 41 to preserve the rights of Mexico
in light of the dispute in Avena over the interpretation and application of the
Vienna Convention, it should act here in light of the dispute over the
obligations imposed by its own Judgment. “The context in which Article 41
has to be seen within the Statute is to prevent the Court from being hampered
in the exercise of its functions because the respective rights of the parties to a
dispute before the Court are not preserved.” LaGrand, Me3its, Judgment of 27
June 2001, I.C.J. Reports 2001, p. 502-03, para. 102.
2 The third Mexican national protected by the Court’s previous order of provision
measures, Osvaldo Torres Aguilera, is no longer in danger of execution because
the Governor of the State of Oklahoma commuted his sentence to life
imprisonment without the possibility of parole. Torres v. Oklahoma, 120 P.3d
1184 (Okla. Crim. App. 2005).
3 In addition to the specific grant of authority in Article 41, this Court has inherent
jurisdiction to issue provisional measures. See, e.g., Northern Cameroons
(Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2
December 1963, (separate opinion of Judge Fitzmaurice), I.C.J. Reports 1963, p.
103 (“But also, there is the Court’s preliminary or incidental jurisdiction (e.g. to
decree interim measures of protection…) which it can exercise even in advance
of any determination of its basic jurisdiction as to its ultimate merits….Although
much (though not all) of this incidental jurisdiction is specifically provided for in
the Court’s Statute, or in Rules of Court which the statute empowers the Court to
make, it is really an inherent jurisdiction, the power to exercise which is a
necessary condition of the Court—or of any court of law—being able to function
at all.”); see also Legality of Use of Force, Provisional Measures, Judgment of 2
June 1999 (dissenting opinion of Judge Weeramantry), p. 197-98 (“When Article
41 of the Statute gave the Court power to indicate provisional measures it did not
do so to the exclusion of universal principles relating to powers which are
inherent in judicial proceedings.”).
310. There can be no doubt, and by its provisional measures orders in this case,
LaGrand, and the Case Concerning the Vienna Convention the Court has
confirmed, that the paramount interest in human life is at stake here and that
that interest would be irreparably harmed if any of the Mexican nationals
whose right to review and reconsideration was determined in the Avena
Judgment were executed without having received that review and
reconsideration. Unless the Court indicates provisional measures pending this
Court’s disposition of Mexico’s Request for Interpretation, Mr. Medellín
certainly will be executed, and Messrs. Fierro, Leal García, Moreno Ramos,
and Ramírez Cárdenas will be at substantial risk of execution, before the Court
has had the opportunity to consider the dispute before it. In that event, Mexico
would forever be deprived of the opportunity to vindicate its rights and those
of the nationals concerned.
11. Compared with the irremediable loss of a human life, any prejudice that the
United States might suffer by a delay in an execution would be
inconsequential. At most, the United States would need to forbear from
executing Mexican nationals during the pendency of these proceedings. All of
the nationals would remain incarcerated and subject to execution once their
right to review and reconsideration has been vindicated. Indeed, Mr. Medellín
has already been on death row for over fourteen years. A further delay equal
to the length of the proceedings before this Court could hardly constitute a
hardship to the United States.
12. There also can be no question about the urgency of the need for provisional
measures. In all previous instances in which this Court has indicated
provisional measures, the nationals in question were subject to imminent
execution, some on dates already established. In those cases, the Court acted
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with the utmost dispatch to prevent that result. Cognizant of this Court’s
direction in the LaGrand and Avena cases that “the sound administration of
justice requires that a request for the indication of provisional measures
founded on Article 73 of the Rules of Court be submitted in good time,”
LaGrand, Provisional Measures, Order of 3 March 1999, p. 16, para. 19;
Avena, Provisional Measures, Order of 5 February 2003, p. 90-91, para. 54,
Mexico has sought to submit this Request at such time as would allow the
Court to give it full and unhurried consideration.
13. In short, provisional measures are clearly justified in order both to protect
Mexico’s paramount interest in the life of its nationals and to ensure the
Court’s ability to order the relief Mexico seeks.
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On Paraguay’s request in the Case Concerning the Vienna Convention, the Court
indicated provisional measures within six days. On Germany’s request in the
LaGrand case, the Court indicated provisional measures within twenty-four hours
and in Avena, in twenty-six days.
414. Because in each of the cases that are the subject of this Request, the death
penalty has been imposed as a result of criminal proceedings conducted by one
of the constituent states of the United States, compliance by the United States
with any order by this Court will require action by state authorities, federal
authorities, or both. As a result, Mexico considers it critical that the Court
indicate provisional measures at a time that will give the United States ample
opportunity to implement the Court’s order before Mr. Medellín’s scheduled
execution on 5 August 2008.
THE O RDER REQUESTED
15. On behalf of the Government of Mexico, acting on its own behalf and in the
exercise of the diplomatic protection of its nationals, I therefore respectfully
request that, pending resolution of Mexico’s Request for Interpretation, the
Court indicate:
a. That the Government of the United States take all measures necessary
to ensure that José Ernesto Medellín, César Roberto Fierro Reyna, Rubén
Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are
not executed pending the conclusion of the proceedings instituted this day;
b. That the Government of the United States inform the Court of all
measures taken in implementation of subparagraph (a); and
c. That the Government of the United States ensure that no action is taken
that might prejudice the rights of Mexico or its nationals with respect to any
interpretation this Court may render with respect to paragraph 153(9) of its
Avena Judgment.
16. In view of the extreme gravity and immediacy of the threat that authorities in
the United States will execute a Mexican national in violation of obligations
the United States owes to Mexico, Mexico respectfully asks the Court to treat
this Request as a matter of the greatest urgency and set a hearing on this
Request before the end of June 2008.
17. The Government of Mexico has authorized the undersigned to appear before
the Court in any proceedings or hearings relating to this request that the Court
or its President may convene in accordance with the terms of Article 74,
paragraph 3, of the Rules of Court.
5une008
______________________________________________
Ambassador Jorge LOMÓNACO TONDA
Ambassador of Mexico to the Kingdom of the Netherlands
TheagueN,etherlands
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Request for the Indication of Provisional Measures