On 19 January 2009, the International Court of Justice formally declined to interpret its judgment in the Case of Avena and Certain Other Mexican Nationals (Avena), which dealt, as did its “predecessor”, the LaGrand case, with the US non-implementation of the Vienna Convention on Consular Relations. Both LaGrand and Avena ended with the clear finding of the Court that the individuals whose rights under the VCCR had not been respected were entitled to review and reconsideration of their judgments and sentences. Specifically in paragraph 153 (9) (of Avena), which formed part of the dispositif, the Court found
… that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the: convictions and sentences of the Mexican nationals …by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment.
Failure of the United States to provide such review and reconsideration, would be a breach of its international obligations. In the case of the LaGrands this had been irrevocably the case as they had both been executed in the United States by the time the judgment was delivered. Contrary to the situation in the LaGrand case, all of the individuals whose rights were at issue in the underlying Case of Avena and Certain Other Mexican Nationals were still alive by the time the Court had delivered its judgment on 31 March 2004. In fact, Mr. Medellin was the first for whom an execution date had been set since, which was to be carried out on August 5, 2008. It is in this context that one should put Mexico’s June 5, 2008 filing of a request for interpretation of the Avena judgment, and the request for an order of provisional measures accompanying it, which most importantly sought to halt Mr. Medellin’s execution. With only two months left before Mr. Medellin’s scheduled execution date, the ICJ managed to hold oral arguments and produce an order of provisional measures within the very short timeframe of 41 days.
Judging from Mexico’s initial request, many familiar with Article 60 of the Court’s Statute had early on counted Mexico out. After all, Mexico had the difficult task to convince the Court that it was not simply trying to have another round of proceedings on the United States’ failure to implement Avena. Rather it had to demonstrate that, in the words of Article 60, there was a “dispute as to the meaning or scope of the judgment” allowing the Court to “construe it upon the request of any party”.
Mexico’s initial request seemed ill-equipped to achieve that goal, asking the Court to 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
(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.
Taking the request at face value, it seemed that, unless the United States would be gullible enough to maneuver itself into the position of arguing that the review and reconsideration mentioned in paragraph 153(9) of the Avena Judgment did not refer to an obligation of result (but one of conduct), there would be no way for Mexico to demonstrate the existence of a dispute. Read the rest of this entry…