International Court of Justice
Further 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)
October 6, 2008 Table of Contents
I. Introduction..................................................................1
II. Mexico Fails to Identify a Genuine Dispute
Regarding the Meaning or Scope of Avena................2
A. The United States Has Consistently Stated That
Avena Imposes What Mexico Calls an “Obligation of
Result”..............................................................................3
B. Speculative Inferences Regarding the United States’
Conduct Cannot Negate Its Unequivocally Stated
Interpretation of Avena ...................................................7
C. The United States’ Conduct Is In Fact Consistent
with Its Stated Position That Avena Imposes What
Mexico Calls an “Obligation of Result”.........................10
III. The Court Lacks Jurisdiction to Entertain
Mexico’s Request for a Declaration of Breach
of the Provisional Measures Order............................13
IV. The Court Has No Basis to Consider
Mexico’s Remaining Claims.........................................17
A. The Court Lacks Jurisdiction to Rule That the
United States Breached the Avena Judgment .............17
B. There Is No Basis for the Court to Order Guarantees
of Non-Repetition with Respect to the Avena Judgment
........................................................................................20
V. Submissions................................................................25I. Introduction
1. This case ostensibly concerns a dispute over the
interpretation of the Court’s 2004 Avena Judgment—in
particular, about whether the United States agrees that
Avena imposes what Mexico calls an “obligation of result”
or believes that it imposes only an “obligation of means.”
Mexico claims there is such a dispute, but in its written
observations, it does not cite a single instance in which
the United States has contested Mexico’s interpretation of
Avena. Nor could it: it has been the consistent position of
the U.S. government—stated in this Court and
elsewhere—that Avena obligates the United States to
provide review and reconsideration of the convictions and
sentences of the individuals included in Avena. In
addition, Mexico’s written observations essentially
concede that under international law, the views or
statements of U.S. state officials cannot give rise to an
interpretive dispute. 1 In short, there is not an
interpretive dispute between Mexico and the United
States, and there cannot be an interpretive dispute with
Texas or any other U.S. state. Mexico’s application must
therefore be dismissed.
2. Apart from the absence of an underlying
interpretive dispute, Mexico’s written observations seek
to extend this case well beyond the limited and special
jurisdiction provided in Article 60 of the Statute. That
provision, and the Court’s juri sprudence, make clear that
such jurisdiction extends only to disputes about
interpretation—“disputes as to the meaning or scope” of a
prior judgment—and not to disputes about compliance
with, or enforcement of, the prior judgment. But the
latter is exactly what Mexico’s written observations seek.
Unable to present evidence of a real interpretive dispute,
Mexico seeks to have the Court order the United States to
comply with the uncontested obligations imposed by
Avena and to issue guarantees that it will comply in the
1Request for Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals (Mexico v.
United States), Submission of Mexico inResponse to the Written
Observations of the United States of America, paras. 34, 35, 40
[hereinafter “Response to Written Observations”].
1future. Those requests fall outside the scope of Article 60
jurisdiction.
3. Mexico’s written observations in effect seek to draw
this Court further into the role of monitor and enforcer of
the Avena Judgment—to the serious detriment of the
principle that this Court’s judgments, once issued, are
final and binding on both parties. There is no dispute
over the interpretation of Avena; Mexico well knows that.
It has nevertheless used a non-existent interpretive
dispute to assert other claims concerning the United
States’ conduct—claims that it would have had no
jurisdictional basis to assert directly. The Court has
spoken clearly in Avena regarding the United States’
obligations. That decision is “final and without appeal”
under Article 60, and there is nothing further for the
Court to adjudicate.
II. Mexico Fails to Identify a Genuine Dispute
Regarding the Meaning or Scope of Avena
4. Before proceeding to the factual and legal reasons
why Mexico’s position must fail, it first must be noted
that Mexico’s written observations make several
significant concessions. First, Mexico “readily
acknowledges” that the issue of whether the actions of a
governmental organ involve the United States’
international responsibility is distinct from the question
of who has authority to speak for the United States. 2
Second, Mexico in effect stipulates that the federal
Executive “generally conducts international relations on
3
behalf of the United States.” At a minimum, these
concessions invite the Court to give dispositive weight to
the authoritative pronouncements of the federal
Executive in determining whether an interpretive dispute
exists.
5. Despite these concessions, and the United States’
categorically stated understanding of Avena, Mexico
argues that the Court should examine “the [Executive’s]
views and acts in other fora (including the U.S. Supreme
Court), as well as the views and acts of other competent
2Id. at para. 34.
3Id. at para. 36.
2organs of federal and state government.” 4 Itrhr
contends that the “words and deeds” of the United States
reveal a genuine dispute about the “meaning or scope” of
the Avena Judgment. 5
6. Mexico’s position is factually and legally
unsupportable. First, Mexico has not identified a single
statement by any organ of the U.S. government that
contradicts the U.S. position that Avena imposes what
Mexico calls an “obligation of result.” Second, this Court
has never looked to the conduct of a party to determine
whether there exists a dispute regarding interpretation,
and the speculative inferences Mexico would have the
Court draw from the United States’ conduct provide no
basis for rejecting the United States’ firm and
longstanding interpretation of Avena. Third, the United
States’ actions are consistent with its understanding that
Avena imposes an obligation on the United States to
provide review and reconsideration of the convictions and
sentences of the individuals included in Avena.
A. The United States Has Consistently Stated
That Avena Imposes What Mexico Calls an
“Obligation of Result”
7. At the outset, it is important to be clear that it is
not the position of the United States, contrary to Mexico’s
suggestion, that “only the assurances of its Agent” before
the Court bear on whether there is a dispute as to
6
meaning or scope of the Avena Judgment. Weaccept
that a State’s authoritative out-of-court pronouncements
can also be relevant. If the United States were to tell the
Court that Avena imposes an “obligation of result,” but
elsewhere were to claim that it imposes only an
“obligation of means,” the Court could take all the United
States’ statements into account in determining whether
an interpretative dispute exists.
8. But that is not the case here: the United States is
not saying one thing in this Court and another thing
4Id.
5Id. at para. 35.
6See id. at para. 2.
3elsewhere. Rather, through officials speaking
authoritatively on its behalf, the United States has
consistently stated that the Avena Judgment obligates the
United States under international law to ensure review
and reconsideration of the convictions and sentences of
the individuals included in Avena. After many rounds of
pleadings in various stages of this case, Mexico has yet to
identify a single statement by U.S. government officials
that is inconsistent with this position.
9. Mexico nevertheless suggests that the U.S.
government’s position before the U.S. Supreme Court in
Medellín v. Texas (Medellín II) somehow contradicts its
position that Avena imposes an obligation of result. 7 In
fact, in its brief to the Supreme Court, the United States
made absolutely clear what Avena requires: “[T]he United
States has an international law obligation to comply with
the ICJ’s decision in Avena. That decision requires the
United States courts to provide review and
reconsideration of the convictions and sentences of the 51
Mexican nationals addressed in that decision.” 8 I
addition, the arguments made by the United States in
Medellín II were clearly intended to secure domestic
implementation of the international law obligation
imposed by Avena. The Avena Judgment itself made clear
that the United States could implement this obligation in
its domestic system “by means of its own choosing.” 9 The
President accordingly determined to implement Avena by
having U.S. state courts give effect to the Avena
Judgment. 10 Indeed, in Medellín II , the Executive
vigorously argued to the Supreme Court that the
7See Response to Written Observations, at paras. 41-44; Medellín v.
Texas, 128 S. Ct. 1346 (2008), slip op. at 8 (available at
http://supremecourtus.gov/opinions/pdf/06-984.pdf Exhibit B of
Mexico’s Application). This case is referred to herein as “Medellín II.”
8
Brief of the United States as Amicus Curiae, Medellín v. Texas, No.
06-984 (March 2007), at 4 (ava ilable at http://www.usdoj.
gov/osg/briefs/2006/3mer/1ami/2006-0984.mer.ami.pdf).
9
Avena and Other Mexican Nationals (Mexico v. United States of
America), Judgment, I.C.J. Reports 2004, p. 72, para. 153(9)
[hereinafter “Avena Judgment”].
10George W. Bush, Memorandum for the Attorney General,
Compliance with the Decision of th e International Court of Justice in
Avena (Feb. 28, 2005).
4President’s determination was lawful and bound state
courts to comply. 11
10. Mexico quibbles with the United States’ choice of
legal arguments before the Supreme Court in Medellín II,
taking issue with the U.S. position that the Avena
Judgment was not automatically enforceable in U.S.
12
courts without the President’s determination. But that
issue—which, in U.S. legal parlance, concerns whether
the Avena Judgment is “self-executing”—is a matter of
U.S. domestic law. Mexico’s doubts about the United
States’ best assessment of its options within its own
domestic legal system and under its Constitution are not
relevant to the issues before the Court in this case.
Moreover, from the time the President made the decision
to implement Avena through his determination of
February 28, 2005, until proceed ings before this Court,
Mexico never expressed any claim that the President’s
determination and the U.S. efforts to implement it
evidenced a difference of interpretation with the United
States about whether Avena imposes an “obligation of
result.”
11. To be clear, the Supreme Court does not speak for
13
the United States on the international plane. et
Mexico also claims that the Supreme Court’s decision in
Medellín II is itself “wholly at odds” with Mexico’s
interpretation of the Avena Judgment, because the
Supreme Court concluded that the Avena Judgment is not
self-executing and therefore not automatically binding on
14
U.S. state courts. This is (again) a mischaracterization
of Medellín II. The Supreme Court clearly explained the
issue before it:
11Brief of the United States as Amicus Curiae, Medellín v. Texas, No.
06-984 (March 2007), at 4-7.
12See Response to Written Observations, at paras. 41-44.
13
The United States argued in its earlier written submission that
under principles of international law, the federal Executive—not U.S.
states and not other organs of the federal government—speaks
authoritatively for the United States on the international plane.
Written Observations of the United States of America, August 29,
2008, paras. 36-53.
14
Response to Written Observations, supra, at section III(B)(2).
5 No 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
States. But not all international law obligations
automatically constitute binding federal law
enforceable in United States courts. The question we
confront here is whether the Avena judgment has
automatic domestic legal effect such that the judgment
of its own force applies in state and federal courts. 15
In other words, the issue for the Supreme Court was not
whether Avena imposed an international law obligation
on the United States, but rather whether, under
principles of U.S. domestic law, the nature of certain
international obligations the United States had entered
into—here, the Optional Protocol to the Vienna
Convention on Consular Relations (the “Vienna
Convention”) and the UN Charter (of which the ICJ
Statute is an integral part)—rendered the Avena
judgment automatically enforceable in U.S. courts. The
Supreme Court concluded that it did not, because—as a
matter of U.S. domestic law—none of the treaties at issue
“creates binding [U.S.] federal law in the absence of
16
implementing legislation.”
12.Mexico finds much to disagree with in the
Supreme Court’s analysis of U.S. law, but it has not cited
a single statement by the Court that the United States
does not have an international law obligation to provide
appropriate review and reconsideration for the
individuals included in Avena. Instead, Mexico cites a
difference of views with the Supreme Court about Article
94 of the UN Charter and what it entails for the status of
Avena under U.S. domestic law. 17 But the meaning of
Article 94 was plainly not at issue in the Avena
Judgment, and insofar as Mexico seeks to introduce the
15Medellín II, supra, slip op. at 8.
16Id. at 10. In reaching this conclusion, the Supreme Court also
observed that “neither Medellín nor his amici have identified a single
nation that treats ICJ judgments as binding in domestic courId.”
at 21.
17Response to Written Observations, supra, at paras. 52-56.
6issue now, it is clearly beyond the scope of a request for
interpretation. Indeed, the issue has nothing to do with
the case before the Court: Avena could at once impose an
“obligation of result” on the United States as a matter of
international law and still remain, absent domestic
legislation, unenforceable in U.S. courts under U.S. law.
13. In sum, Mexico’s arguments about Medellín II are
an elaborate misdirection. For one, as Mexico
acknowledges, it is the fede ral Executive that speaks
authoritatively for the United States on the international
plane. But even if the views of the Supreme Court are
considered, the fact of the matter is that the entire
dispute in Medellín II was premised on the
understanding—accepted by the State of Texas, the
United States, and the Supreme Court itself—that Avena
requires the United States to provide review and
reconsideration of the convictions and sentences of the
individuals included in Avena. 18 There is accordingly no
basis for Mexico’s contention that Medellín II is
inconsistent with the United States’ stated interpretation
of Avena.
B. Speculative Inferences Regarding the United
States’ Conduct Cannot Negate Its
Unequivocally Stated Interpretation of Avena
14.Having failed to cite a single inconsistent U.S.
statement, Mexico argues that the Court can somehow
infer a different interpretation from the United States’
conduct—specifically, its decision to pursue certain means
of implementing Avena over others. Mexico’s argument
has no merit.
15. For one thing, the Court has never in an
interpretation case looked to the conduct of a party to
determine whether a dispute exists. There is a good
reason for this: An interpretive dispute necessarily
involves opposing legal understandings regarding the
meaning or scope of a prior judgment—it “requires a
divergence of views between the parties on definite
18Medellin II, supra, slip op. at 8.
7 19
points.” Those views and understandings are revealed
by a party’s statements before the Court and elsewhere,
and cannot readily be discerned by the mute facts of a
party’s conduct. The fact that a party may be unable to
fulfill an international obligation simply does not mean
that it has a different interpretation of what that
obligation is.
16.The situation is different in a dispute about the
application of legal obligations to a party’s conduct. For
this reason, Mexico’s reliance on the Court’s decision in
the Headquarters Agreement Case is misplaced. 20 That
case arose after the UN Secretary General requested that
the United States enter into arbitration under the
Headquarters Agreement, claiming that the U.S. violated
the agreement by implementing a newly-enacted domestic
law barring the Palestine Liberation Organization (PLO)
from maintaining an observer mission at the United
Nations. At the time of the Court’s decision, the
President had signed the relevant provision into law; the
U.S. Attorney General had notified the PLO’s Permanent
Observer that maintaining the mission would be unlawful
when the law became effective; and, when the PLO failed
to comply with the law, the United States had brought
suit in U.S. federal court to compel compliance. 21
17.The question for the Court was whether these
actions gave rise to a dispute under the Headquarters
Agreement, triggering a provision of the agreement
requiring such disputes to be referred to arbitration. 22
The United Nations contended that there was indeed such
a dispute. The position of th e United States was that it
“had not yet concluded that a dispute existed . . . because
the legislation in question had not yet been
19Request for Interpretation of the Judgment of November 20th, 1950,
in the Asylum Case, Judgment of November 27th, 1950: I.C.J. Reports
1950, p. 403 [hereinafter “Asylum Case”].
20Applicability of the Ag reement to Arbitrate Under Section 21 of the
United Nations Headquarters Agreement of 26 June 1947, Advisory
Opinion, I.C.J. Reports 1988, p.12.
21Id. at pp. 15-16, paras. 9-10.
22
Id. at p. 13, para. 1.
8 23
implemented.” In its written statement to the Court,
the United States argued that it “did not believe
arbitration would be appropriate or timely,” because it
intended to refrain from taking action against the PLO
mission while litigation in U.S. courts was pending. 24 The
Court rejected the U.S. position, stating that the existence
of a dispute “in no way requires that any contested
decision must already have been carried into effect.” 25 In
other words, the Court determined that it was not
required to wait until actual closure of the PLO mission
before finding a dispute about compliance with the
Headquarters Agreement; the actions of the U.S. directed
at closing the mission were sufficient to give rise to a
dispute.
18. Critically, the Court then proceeded to state that
the dispute at issue concerned the application of the
Headquarters Agreement. The Court observed that, on
the main interpretive question, the United States did not
dispute the United Nations’ claim that U.S. actions were
contrary to the Headquarters Agreement. 26 Rather, the
Court said, there existed “a dispute between the United
Nations and the United States concerning the application
of the Headquarters Agreement.” 27
19.The Headquarters Agreement Case demonstrates an
important difference between cases strictly about
interpretation of legal obligations and cases that involve
application of those obligations. In cases involving
application, a party’s conduct is indicative of how it
applies or implements a treaty. In an interpretation case,
however, a party’s conduct is not by itself determinative of
how it understands its obligations: it is, after all, possible
that a State can be in violation of its international
obligations even when the State has no disagreement over
the scope of those obligations . Because the Headquarters
Agreement required the parties to arbitrate disputes
23Id. at p. 23, para. 39 (quoting the report of the Secretary General to
the General Assembly (A/42/915, para. 6)).
24
Id.
25Id. at p. 29, para. 42.
26Id. at p. 32, para. 49 (emphasis added).
27
Id.
9regarding application of the agreement, the United
States’ conduct was relevant in determining jurisdiction.
Article 60, on the other hand, provides jurisdiction only as
to disputes concerning interpretation of a prior judgment.
While consideration of the Un ited States’ conduct would
be relevant to whether the United States has complied
with its obligations under Avena, that conduct cannot, by
itself, reveal how the United States understands those
obligations.
C. The United States’ Conduct Is In Fact
Consistent With Its Stated Position That Avena
Imposes What Mexico Calls an “Obligation of
Result”
20. The United States has stated, unequivocally, that
Avena imposes an obligation of result, and there is no
reason to second-guess that position on the basis of
speculative inferences about the United States’ conduct.
Even so, the United States’ actions since the Avena
decision make clear that it regards the decision as
imposing an obligation to provide review and
reconsideration of the convictions and sentences of the
individuals included in Avena. Those actions are detailed
at length in the United States’ oral pleadings on
provisional measures, in its August 1, 2008 letter to the
28
Court, and in its August 29, 2008 filing.
21. Mexico, however, picks out what the United States
has not done, and argues on the basis of these “acts and
omissions” that the Court should ignore the United
States’ stated position that it is bound to implement
Avena. 29 In particular, Mexico argues that the United
States disagrees with Mexico’s interpretation because it
28Request for Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals (Mexico v.
United States), Public Sitting, June 19, 2008, at 3 paras. 6-27;
Letter to the President of the Court, H.E. Judge Rosalyn Higgins,
August 1, 2008; Written Observations of the United States of
America, August 29, 2008, paras. 2-15.
29
Response to Written Observations, paras. 40-49. Notably, almost
all the “acts or omissions” cited by Mexico occurred since Mexico filed
its application. This further calls into question the strength of
Mexico’s application and its argument that there is a dispute under
Article 60.
10(1) did not make filings in the latest round of litigation
concerning José Ernesto Medellín Rojas, and (2) “took no
steps to support legislation proposed in Congress that
30
would implement Avena.” In addition, Mexico contends
that Congress’s failure to enact legislation evinces an
interpretive dispute. 31 These contentions are meritless.
22. First, as we have previously informed the Court,
the United States has sought practical and effective ways
to implement the Avena Judgment. We have accordingly
engaged Texas officials with a view to securing review
and reconsideration for individuals included in the Avena
decision. While we did not ac hieve what we hoped in Mr.
Medellín’s case, our efforts have yielded results. As the
Court is aware, in a letter to Secretary of State
Condoleezza Rice, Texas Governor Rick Perry made an
important commitment 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. 32 Texas’s
filings in the Supreme Court in Medellín III confirmed
33
this commitment. We have recently been able to
confirm a similar oral commitment from Nevada, another
U.S. state with a Mexican national subject to Avena. The
United States’ actions in this regard are entirely
consistent with its stated understanding that Avena
imposes what Mexico calls an “obligation of result.”
23. The fact that the United States, in implementing
Avena, eschewed particular avenues that it judged
unlikely to succeed or arguments that it viewed as
inconsistent with existing rulings of the U.S. Supreme
Court as a matter of U.S. domestic law does not mean
30Id. at paras. 45-47.
31Id. at para. 57.
32
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 (July 18, 2008).
33Brief in Opposition, Medellín v. Texas , 554 U.S.___ (2008)
(“Medellín III ”) (Nos. 08-5573, 08A98), available at:
http://www.scotusblog.com/wp/wp-content/uploads/2008/08/texas-bio-
05-5573.pdf.
11that the United States has a different view of its
international legal obligation under Avena. With respect
to Mr. Medellín’s last round of litigation, the Supreme
Court’s decision in Medellín II had previously made clear
that Mr. Medellín could not obtain relief on the basis of
the Avena Judgment or the President’s directive to States
to provide review and reconsideration to Mexican
34
nationals covered by that Judgment. In addition, it was
apparent from Medellín II that this Court’s July 16, 2008
Order Indicating Provisional Measures (the “July 16
Order”) could provide no additional legal ground on which
Mr. Medellín could seek relief. We can appreciate
Mexico’s frustration with respect to the recent litigation
involving Mr. Medellín, but th e United States’ decisions
with respect to that litigation do not mean that it has a
different understanding of the Avena Judgment.
24. Second, despite Mexico’s insistent focus on the
issue, legislation is not an especially promising avenue for
implementing Avena at this time. It is true that a bill
was introduced by two members of one house of Congress,
but no committee, much less the full Congress, took any
35
action on the bill before Congress adjourned. Moreover,
as the United States made clear in its first written
submissions, the fact that Congress has not enacted
legislation is irrelevant to whether the United States
interprets Avena to impose an “obligation of result.” 36
Mexico also complains that the federal Executive has not
pushed the legislation. But it is up to U.S. officials to
decide how best—legally and politically—to ensure
compliance with Avena. The fact that the Executive did
not push for legislation in a short legislative session
occupied with many other pressing priorities obviously is
no basis for the Court to second-guess the United States’
stated interpretation of the Avena Judgment.
34
Medellin II, supra, slip op. at 2.
35H.R. 6481, 110th Cong. (2008).
36Written Observations of the United States of America, August 29,
2008, para. 53.
12III. The Court Lacks Jurisdiction to Entertain
Mexico’s Request for a Declaration of Breach of the
Provisional Measures Order
25. The Court lacks jurisdiction to rule on the merits
of Mexico’s supplemental request that the Court declare
the United States in breach of the Court’s July 16 Order.
26.The Court’s jurisdiction to determine whether a
party has breached a provisional measures order is
derived from its jurisdiction to adjudicate the underlying
dispute. 37 LaGrand is instructive. In that case, Germany
sought to add to its Vienna Convention claims a claim for
breach of the Court’s provis ional measures order. The
Court determined that it had jurisdiction over the
additional claim because it “concerns issues that arise
directly out of the dispute between the Parties before the
Court over which the Court has already held that it has
jurisdiction [and] are thus covered by Article I of the
38
Optional Protocol [to the Vienna Convention].” In other
words, the Court held that it could hear the provisional
measures claim because it rested on the same
jurisdictional basis—Article I of the Optional Protocol—as
Germany’s Vienna Convention claims.
27. Here, relying on LaGrand, Mexico argues that the
Court has jurisdiction over its claim of breach of the
provisional measures order because the Court has
jurisdiction over its request for interpretation. 39 That
argument is unavailing, for two reasons.
37See LaGrand (Germany v. U.S.), Judgment, I.C.J. Reports 2001 , p.
466.
38Id. at p. 484, para. 45. (emphasis added).
39
See Response to Written Observations, at para. 62. As an initial
matter, Mexico claims that the Court’s September 2, 2008 letter to
the parties “granted” Mexico’s August 28, 2008 request to amend its
pleadings to state a claim based on the violation of the Court’s
provisional measures order. Id. at para. 62, n. 5. That is not what
the Registrar’s letter says. Rather, it says only that “the Court has
decided to afford the Parties the opportunity of furnishing short
further written explanations, as provided for in Article 98, paragraph
4, of the Rules of the Court.” In addition, if the Court’s letter was in
fact addressed to the jurisdictional question, the United States was
afforded insufficient opportunity to reply to Mexico’s request.
13 28. First, because the Court has no basis to adjudicate
Mexico’s request for interpretation, it also has no basis to
address an ancillary claim founded entirely on that
application. The principle here, closely related to the
Court’s reasoning in LaGrand, is that where the Court
does not have jurisdiction to decide a case, it lacks
jurisdiction to rule on ancillary submissions. Consistent
with this principle, the Cour t has carefully distinguished
its power to indicate provisional measures under the
“special provision” in Article 41 of the ICJ Statute from its
authority to entertain the merits of a case. 40 In Anglo-
Iranian Oil Co., the Court’s jurisdiction to hear the merits
was governed by “the general rules laid down in Article 36
of the Statute,” which the Court made clear “are wholly
different from the special provisions of Article 41 . . . [and]
are based on the principle that the jurisdiction of the
Court to deal with and decide a case on the merits
41
depends on the will of the Parties.” Article 41
authorizes the Court only to indicate provisional
measures to preserve the rights of the parties while the
case is pending; the Court requires a separate
jurisdictional basis to hear a case on the merits. Here,
the Court’s jurisdiction to entertain the merits is
governed by Article 60, not Article 36, but the same
principle holds: the limited power granted by Article 41 to
indicate provisional measures does not provide
jurisdiction to examine the question of breach of the
provisional measures order.
29. There are sound reasons for this approach.
Provisional measures are intended only to preserve the
status quo pending the Court’s resolution of the rights of
42
the parties as they existed at the time of the application.
But once the Court determines that it has no basis to
adjudicate that application, it serves no purpose to
40
See, e.g., Anglo-Iranian Oil Co. case (jurisdiction), Judgment of July
22nd, 1952: I.C.J. Reports 1952, p. 102-03.
41Id.
42See Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment,
I.C.J. Reports 2002 , pp. 295-96, para. 35 [hereinafteLand and
Maritime Boundary Case”]; Shabtai Rosenne, ROVISIONAL M EASURES
ININTERNATIONAL LAW 3 (2005).
14inquire whether the parties have maintained the status
quo with respect to a claim that is now only theoretical.
30. Where the Court lacks jurisdiction, a declaration of
non-compliance with provisional measures would
seriously undermine the consensual basis of the Court’s
jurisdiction.43 This concern is real enough when the
Court indicates provisional measures before finally
establishing its jurisdicti on. As Professor Rosenne
observes, “prima facie jurisdiction can make serious
inroads into the traditional consensual basis of the
Court’s jurisdiction.” 44 In such situations, it may be that
the risk of imposing obligations on a State without its
consent is warranted if the preliminary measures are
necessary for the Court to perform its adjudicatory
function. But once the Court has determined that it lacks
jurisdiction—in effect, a finding that one of the parties
has not consented to the Court’s intervention–there is no
justification for declaring that party’s legal obligations.
31. Second, even if the Court has jurisdiction over the
request for interpretation, Article 60 does not provide
jurisdiction for Mexico’s provisional measures claim. The
Court’s jurisdiction in the present proceedings is defined
by Article 60, which limits jurisdiction to disputes as to
the “meaning or scope” of the Avena judgment. Mexico’s
claim that the United States breached the Court’s
provisional measures order is not a dispute as to the
“meaning or scope” of the Avena Judgment and is thus
beyond the Court’s Article 60 jurisdiction.
32. LaGrand, of course, was different. There, the
Court had jurisdiction under the Optional Protocol over
all “disputes arising out of the interpretation or
application of the [Vienna Convention].” 45 Even if a case
had not been already pending before the Court, there
would have been jurisdiction under the Optional Protocol
43See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
1995, p. 101, para. 26 (“[O]ne of the fundamental principles of [the
ICJ] Statute is that it cannot decide a dispute between States without
consent of those States to its jurisdiction”).
44Rosenne, PROVISIONAL M EASURES IN NTERNATIONAL L AW, supra, at
123.
45
LaGrand, supra, at para. 36.
15for Germany to bring a separate claim that the execution
of the LaGrand brothers violated the United States’
Vienna Convention obligations. Germany’s claim that the
LaGrand executions violated the provisional measures
order was simply another aspect of its Vienna Convention
claims. For this reason, in concluding that it had
jurisdiction, the Court noted that the provisional
measures claim also concerned issues that were “covered
46
by Article I of the Optional Protocol.”
33. That is not true here. The question of whether the
United States has complied with Avena is distinct from
the question of how to interpret Avena. The merits of the
interpretive question would require the Court to parse the
Avena Judgment with a view to determining what it
means. The issue of breach would not only involve the
Court in questions well beyond whether Avena imposes
what Mexico calls an “obligation of result,” but would also
require the Court to pass on the lawfulness of actions
subsequent to the Avena Judgment, including whether
Mr. Medellín received adequate review and
reconsideration. 47 That would take the Court far afield
from the question of what the Avena Judgment meant.
It would also run counter to the basic rule that in
46Id. at para. 45.
47As noted in the United States’ initial written observations, 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 cour t concluded that Mr. Medellín
“fail[ed] to show that he was harmed by any lack of 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. Medellín “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).
16interpretation cases, the Court “cannot take into account
facts not discussed in the original proceedings nor any
development that took place after the original
judgment.” 48 In short, Mexico’s claim for breach of
provisional measures clearly does not “arise[] directly out”
49
of its interpretation request under Article 60.
34.The Court has repeatedly stated that it will not
address new claims that would transform a case “into
another dispute which is different in character.” 50
Mexico’s provisional measures claim would undoubtedly
transform the nature of th e present proceedings and
remove them from Article 60 special jurisdiction. The
Court has no basis to entertain it.
IV. The Court Has No Basis to Consider Mexico’s
Remaining Claims
A. The Court Lacks Jurisdiction To Rule That
The United States Breached The Avena
Judgment
35.In addition to its provisional measures claim,
Mexico requests that the Court declare the United States
in breach of the Avena Judgment. 51
36. As has been the United States’ position throughout
these proceedings, there is no dispute between the United
States and Mexico as to the meaning or scope of the
Avena Judgment and thus no basis to address Mexico’s
request for interpretation. There accordingly is no
48Andreas Zimmerman and Tobias Thienel, Article 60, in The Statute
of the International Court of Justice: A Commentar, 1276-77, 1283
(Andreas Zimmerman et. al., eds., 2006).
49LaGrand, supra, at para. 45.
50Société Commerciale de Belgique, P.C.I.J., Series A/B, No. 7, p.
173 (1939); see also Military and Parami litary Activities in and
against Nicaragua (Nicaragua v. U.S.), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 392, para. 80 (stating
that it will not permit a new claim that would “transform the dispute
brought before the Court by the application into another dispute
which is different in character”).
51Response to Written Observations, supra, at para. 79.
17jurisdiction to address any additional requests Mexico
52
attempts to attach thereto.
37.Even if the Court had jurisdiction over Mexico’s
request for interpretation, the claim that the United
States breached the Avena Judgment must fail, for the
special jurisdiction provided by Article 60 is limited to
questions about the “meaning or scope of the judgment.” 53
Far from adhering to the principle that the real purpose of
a request for interpretation “must be solely to obtain
clarification of the meaning or scope of what the Court
has decided with binding force,” Mexico’s request seeks to
transform an interpretation case into a case about the
United States’ compliance with the Court’s judgment. 54
The Court must dismiss that request. 55
38. There is a clear distinction between proceedings in
interpretation of judgments and questions of compliance
with judgments. In this regard, Professor Rosenne notes:
By Article 60 of the Statute the Court has compulsory
jurisdiction to construe its judgment upon the request
of any party in the event of a dispute as to its meaning
or scope. . . . Furthermore, a dispute concerning the
execution of the judgment, not being a dispute as to its
52Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 476, para. 58 (“the existence of a dispute is the primary condition
for the Court to exercise its judicial function”).
53 Interpretation of Judgment No. 3 (Treaty of Neuilly, Art. 179,
Annex, para. 4) (Bulgaria/Greece), 1925, P.C.I.J., Series A, No. 4 , pp.
3, 7 [hereinafter “ Interpretation of Judgment No. 3” ]; Asylum Case,
supra, at 402. See also Shabtai Rosenne, ITERPRETATION , EVISION
AND O THER R ECOURSE FROM INTERNATIONAL JUDGMENTS AND AWARDS
93 (2007) (“[T]he important and long-term normative ruling of [the
Interpretation of Judgment No. 3] is that an interpretation made
under Article 60 of the Statute cannot go beyond the limits of the
judgment being interpreted.”).
54Asylum Case, supra, at 402 (emphasis added).
55
Andreas Zimmerman and Tobias Thienel, Article 60, in The Statute
of the International Court of Justice: A Commentary, 1276-77, 1283
(Andreas Zimmerman et. al. , eds., 2006) (“[I]t is evident that
interpretation cannot extend beyo nd what has been already decided
in the original judgment. . . . Since the Court is therefore bound by
the limits of its previous judgment , it cannot take into account facts
not discussed in the original proceedings nor any development that
took place after the original judgment.”).
18 meaning or scope , may be justiciable in accordance
with the normal practice of the Court. 56
This “normal practice” refers to the Court’s authority to
hear disputes under Article 36 of the Statute. The
adjudication of such disp utes requires a new and
independent basis of jurisdiction because, unlike Article
60 jurisdiction, jurisdiction over questions of compliance
“is not automatically given by the jurisdiction in the
57
original proceedings.”
39. The Asylum Case demonstrates this distinction in
58
practice. There, the Court determined that Colombia’s
grant of asylum to a Peruvian national, Víctor Raúl Haya
de la Torre, was not in conformity with the Havana
Convention. 59 Colombia then initiated interpretation
proceedings to ascertain whether the Court’s Judgment
required Colombia to surrender Mr. de la Torre to Peru.
Finding that the Judgment did not address the question
of surrender, the Court dismissed Colombia’s request
because it was a new question “which cannot be decided
by means of interpretation.” 60 Colombia subsequently
brought a new case, Haya de la Torre, under Article 36 of
the Statute requesting that the Court rule whether
surrender was required under Article 2 of the Havana
Convention. 61
56Shabtai Rosenne, I THE LAW AND PRACTICE OF THE NTERNATIONAL
COURT 1920-2005 § I.44, at 211 (4th ed. 2006) (emphasis added);
Constanze Schulte, C OMPLIANCE WITH D ECISIONS OF THE
INTERNATIONAL C OURT OF J USTICE 38 (2004) (citing W.M. Reisman,
The Enforcement of International Judgments , 63 M. J. NTL L. 1, 27
(1969) (“As concerns the violation of the obligation to comply with a
judgment, the creditor might take th is issue to the Court again by
way of new proceedings, provided that there is a valid jurisdictional
link.”) (emphasis added).
57Schulte, supra, at 38.
58Asylum Case, supra, at 395.
59
Colombian-Peruvian asylum case, Judgment of November 20th,
1950: I.C.J. Reports 1950, p. 288.
60
Asylum Case, supra, at 403.
61
Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J. Reports
1951, p. 71.
19 40.Mexico’s request for a declaration of breach
presents a new question outside the scope of
interpretation proceedings. Although an amendment to
broaden Article 60 to encompass disputes concerning
compliance with judgments has been proposed in the legal
literature, these two types of proceedings remain
distinct.62 Mexico cannot introduce its claim of breach in
these proceedings.
41.In addition, there is no valid jurisdictional basis
upon which Mexico could make a request for a declaration
of breach in a new proceeding before the Court. While the
original Avena case was brought under the Optional
Protocol to the Vienna Convention, the United States has
since withdrawn its consent to compulsory jurisdiction
over claims arising under the Convention. As a result,
the Optional Protocol cannot serve as the basis for a new
case in this Court.
42. Mexico’s request for a declaration of breach must
be dismissed. It does no t state a dispute as to the
meaning or scope of the Avena Judgment, nor is its
purpose to obtain a clarification of that judgment. There
is also no alternate basis of jurisdiction upon which
Mexico could properly bring its request for a declaration
of breach before the Court. Mexico’s claim that it is
entitled to a declaration of breach of the Avena Judgment
must be dismissed.
B. There is No Basis for the Court to Order
Guarantees of Non-Repetition with Respect to
the Avena Judgment
43.Mexico’s written observations claim that it is
entitled to “guarantees” of non-repetition, and ask the
Court to require the United States 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
62
Schulte, supra, at n. 95 (citing Reisman, M. J.NT L L. at 27).
Reisman recommended the addition of Article 60a to the Statute with
the following text: “In the event of any dispute as to the fact or
manner of compliance, either party may apply to the Court.”
20 63
from the violation.” The Court has no basis to entertain
Mexico’s request.
44. First, as explained, the Court has no basis to hear
Mexico’s request for interpretation, and therefore no basis
to consider any of Mexico’s ancillary remedial requests.
Just as issuing a declaration of breach of a judgment is
outside the Court’s jurisdiction in an interpretation
proceeding, so too is requiring guarantees of non-
repetition. In this regard, LaGrand again does not help
Mexico. There, the Court determined that a dispute as to
remedies for a violation of an international agreement
required no jurisdictional basis independent from that of
the main proceedings. But LaGrand was brought under
64
Article 36(1) of the Statute. Unlike Article 36
jurisdiction, and in recognition of the fundamental
principle of the finality of judgments, the Court’s inherent
jurisdiction over interpretation cases arising under Article
60 is considerably more limited.
45. Second, even if the Court has a basis to consider
the merits of the request for interpretation, Mexico’s
request for guarantees of non-repetition is plainly
inadmissible, for it goes well beyond the issue of the
65
“meaning or scope” of the Avena Judgment. I
particular, Mexico’s request asks the Court to rule on
whether facts subsequent to the Avena Judgment warrant
an order requiring the United States to guarantee that it
will comply with the Judgment. That has nothing to do
with interpreting the Avena Judgment—an exercise that
“cannot extend beyond what has been already decided in
the original judgment” and in which the Court “cannot
take into account facts not discussed in the original
proceedings nor any development that took place after the
original judgment.” 66 To require the United States to
63Response to Written Observations, supra, at para. 86(b).
64
LaGrand, supra, at p. 485, para. 48. This same is true of the other
previous cases in which guarantees of non-repetition have been
sought. See Avena Judgment, supra, at p. 17, para. 1; Land and
Maritime Boundary Case, supra, at p. 312, para. 1.
65See Interpretation of Judgment No. 3, supra , at pp. 3,Asylum
Case, supra, at p. 402.
66Zimmerman and Thienel, supra, at pp. 1276-77, 1283. Application
for Revision and Interpretation of the Judgment of 24 February 1982
21issue a guarantee of non-repetition in this case would
amount to an amendment of the Avena Judgment to, in
effect, impose a greater obligation on the United States
than the Avena Judgment itself. Such an action is clearly
outside the scope of the Court’s powers in an
interpretation proceeding. 67
46. Mexico’s request for guarantees of non-repetition is
especially inappropriate here, given that Avena itself
already declined to grant Mexico’s request for guarantees
of non-repetition. In Avena, the Court determined that
the United States’ considerable efforts, detailed in
LaGrand, to comply with the Vienna Convention’s
consular notification requirements satisfied Mexico’s
request for a guarantee of non-repetition. 68 Torevisit
that ruling in the context of Mexico’s request for
interpretation would completely undermine the principle
of res judicata. Mexico’s renewed request for guarantees
of non-repetition amounts to nothing more than an appeal
from a Judgment that, by the strictures of Article 60, is
“final and without appeal.” 69
47. Finally, an order requiring guarantees of non-
repetition is, at best, an extraordinary remedy under
international law. Indeed, this Court has never ordered
guarantees of non-repetition. LaGrand did not ultimately
in the Case concerning theContinental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jama hiriya), Judgment, I.C.J.
Reports 1985, p. 228, paras. 65-66.
67Asylum Case, supra, at p. 403 (“Interpretation can in no way go
beyond the limits of the Judgment, fixed in advance by the Parties
themselves in their submissions.”).
68Avena Judgment, supra, at pp. 69, 73, paras. 150, 153(10).
69Furthermore, there is no ground for distinguishing between
guarantees of non-repetition with respect to the Vienna Convention
and guarantees of non-repetition with respect to the Avena
Judgment. They are effectively the same thing. The Avena
Judgment declares what the Vienna Convention requires, and the
substantive obligations announced in Avena are obligations under the
Vienna Convention itself. See Shabtai Rosenne, HE W ORLD COURT :
W HAT IT S AND H OW IT W ORKS 38 (5ted. 1995) (“The International
Court is not a legislative body esta blished to formulate new rules of
law…. The Court, like all courts, applies the existing law. It does not
‘create’ new rules of law either for the parties to a given dispute or for
the international community at large.”).
22involve a request for “guarantees” of non-repetition, but
rather for a “general assurance of non-repetition.” 70
Moreover, the Court in LaGrand did not grant Germany’s
request; it merely noted that Germany’s request was met
by the United States’ commit ment to implement specific
measures in relation to its obligations under Article 36 of
the Vienna Convention. The Court concluded: “If a State,
in proceedings before this Court, repeatedly refers to
substantial activities which it is carrying out in order to
achieve compliance with certain obligations under a
treaty, then this expresses a commitment to follow
through with the efforts in this regard.” 71
48. Even if Mexico could properly request guarantees
of non-repetition in this case, it has offered little evidence
that such an order is necessa ry in light of the United
States’ repeated statements that it is attempting to
implement Avena and its continuing actions to do so.
Guarantees of non-repetition are measures of “rather
exceptional character” which, even when requested by a
party, should be afforded only when evidence establishes
that the circumstances require anticipatory measures to
72
prevent likely reoccurrences of the violation.
49. Mexico asserts that following the execution of Mr.
Medellín, “the United States has offered no assurance
that it will take the requisite action” in the future to
prevent breach of the Avena Judgment. That is simply
incorrect. The United States, in its August 29, 2008 filing
before this Court, committed that it “will continue to work
to implement the Avena Judgment by seeking to ensure
review and reconsideration of the convictions and
70
LaGrand, supra, at p. 516, para. 128(6). In fact, Germany amended
its claim during oral proceedings from a claim for “guarantees” to a
claims for a “general assurance.” LaGrand, (Germany v. U.S.), Public
Sitting, Nov. 16, 2000, at 10 a.m., p. 56.
71
LaGrand, supra, at p. 512, para. 124.
72Commentary to Draft Articles on Re sponsibility for Internationally
Wrongful Acts, [2001] Y.B. Int’l L. Comm’n 91, commentary, art. 30,
U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2). Given this “rather
exceptional character” the text of Article 30 and the Commentary
denote the limited role foreseen for guarantees of non-repetition.
Dina Shelton, Symposium: The ILC’s State Responsibility Articles:
Righting Wrongs: Reparations in the Articles on State Responsibility ,
96 AM . J.NT’LL. 833, 847 (2002).
23 73
sentences for all individuals covered by Avena.” The
United States’ recent submission to the Court also
informed the Court that no individuals “included in Avena
are presently scheduled to be executed by Texas or any
other state, and . . . Texas is unlikely to carry out
sentences of such individuals in the next year.” 74 In
addition, Texas Governor Perry has committed to support
federal habeas petitions for judicial determinations of
prejudice resulting from Vienna Convention violations—a
commitment confirmed in Texas’s filings in Medellín III.
Officials from the State of Nevada have made a similar
commitment.
50.In addition, in light of its statement “that there
remains a possibility that implementing legislation will
be enacted before any other Mexican national subject to
the Avena Judgment is scheduled for execution,” Mexico
has not established a likelihood of future acts that
warrant an order of guaran tees of non-repetition. 75
Accordingly, not only is such an order unavailable in this
interpretation proceeding, it is also unnecessary. 76
51. The United States remains committed to achieving
the result of review and reconsideration of the convictions
and sentences of all individuals included in the Avena
Judgment. The United States continues to work to fully
implement the Judgment consistent with its terms.
52.In sum, Mexico’s request that the Court order
guarantees of non-repetition, with its requests for
findings of breach of the provisional measures order and
breach of the Avena Judgment, improperly seek to expand
these proceedings beyond the circumscribed jurisdictional
grant contained in Article 60 of the Statute. For that
reason and for the other reasons set forth above, the
Court should reject those requests.
73Public Sitting, June 19, 2008, at 3 p.m., at para. 21.
74Id.
75
Response to Written Observations, at para. 57.
76Commentary to Draft Articles on Re sponsibility for Internationally
Wrongful Acts, [2001] Y.B. Int’l L. Comm’n 89-91; James Crawford,
Jacqueline Peel & Simon Olleson, The ILC’s Articles on Responsibility
of States for Internationally Wrongful Acts: Completion of the Second
Reading, 12 EUR. J.NTL . L. 963, 987 (2001).
24V. Submissions
53. 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 St ates 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
subsidiary 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 United States
breached the Court’s July 16 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. 77
77Mexico’s written observations modify its original request for
interpretation in two ways. First, the new request no longer refers to
the Avena Judgment “leaving the United States the ‘means of its own
choosing.’” Compare Request for Interpretation of the Judgment of 31
March 2004 in the Case Concern ing Avena and Other Mexican
Nationals (Mexico v. United States), Application Instituting
Proceedings, para. 59 with Response to Written Observations, at
para. 86. Second, the new request adds a requirement that the
United States must “act[] through all its competent organs and all its
constituent subdivisions, etc.” in implementing the Avena Judgment.
Neither change has any bearing on whether Avena imposes what
Mexicocallsan“obligationofresult.” Inaddition,totheextent
Mexico’s revised request may seek to have the Court revisit matters
already decided by the Avena Judgment (e.g., that portion of the
Judgment providing that the United States is to implement its
obligations “by means of its own choosing”) or to address matters not
within the scope of the Judgment, it is inadmissible.
2526
Further Written Explanations of the United States of America