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Home EJIL Analysis One step forward, two steps backward: The ICJ interprets Mexico’s Request for Interpretation of Avena and other Mexican Nationals

One step forward, two steps backward: The ICJ interprets Mexico’s Request for Interpretation of Avena and other Mexican Nationals

Published on February 3, 2009        Author: 

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
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.

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.
Moreover, the two ancillary requests appeared rather redundant if compared to the Court’s findings in Avena, which I quoted above.
In fact, all the United States seemed to need to do was to find a way to gracefully admit that it would indeed be in breach if the state of Texas executed Mr. Medellin, while at the same time accepting that the obligation upon them was of course an obligation of result – case closed.

That is essentially the position the United States took during oral arguments. Of course, it also offered arguments seeking to avoid the order of provisional measures, and sought to showcase the efforts of the US government to implement Avena.
Mexico on the other hand elaborated its initial request, arguing that the conduct of the United States (for example the Federal Government’s lack of further initiatives to implement Avena and the state of Texas’ scheduling of Medellin’s execution) confirmed that the United States truly held the interpretation that paragraph 153(9) imposes only an obligation of means. Hence, in addition to its earlier request, Mexico asked in its submissions at the end of the oral proceedings, that the Court “specify that the obligation to take all steps necessary to ensure that the execution not go forward applies to all competent organs of the United States and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority”.

None of this to my mind seemed to overcome the general difficulty Mexico faced – there was simply no dispute. But to those who may have agreed with me, the Court’s Order of provisional measures provided a surprise. After a lengthy explanation of the meaning of “dispute” as used in different provisions of the Court’s statute, which demonstrated that a “contestation” in French can be broader than a “différend” (the latter being the French term used for example in Article 38(1) of the Statute), the Court sided with Mexico and ordered provisional measures, reasoning that

…whereas, while it seems both Parties regard paragraph 153 (9) of the Avena Judgment as an international obligation of result, the Parties nonetheless apparently hold different views as to the meaning and 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;
56. Whereas, in light of the positions taken by the Parties, there appears to be a difference of opinion between them as to the meaning and scope of the Court’s finding in paragraph 153 (9) of the operative part of the Judgment and thus recourse could be had to the Court under Article 60 of the Statute;

This finding can be criticized in several regards: on the one hand, the Court demonstrably found that the parties were in agreement on the point of interpretation Mexico had originally submitted, namely whether the review and reconsideration requirement constituted an obligation of result. Second, the two apparent differences of views seemed to concern an irrelevant question of fact (do we really need to know whether for example the governor of Texas shares the view of the US executive on the implementation of Avena? And even if he does not, what consequences could that have in international law?); and another question that may strike one as rather self-evident: of course, as Mexico stated in its own application and the United States accepted in oral arguments, all organs and subunits of the state are bound by its international obligations (though not all of them may speak for the state). Moreover this alleged dispute comes somewhat out of left field, as it did not form part of Mexico’s request for interpretation. Rather the federal and state authorities were only mentioned in the request for provisional measures (see the Joint Dissenting Opinion of Judges Owada, Tomka, and Keith).

To be fair, one has to mention that the Order only found the smallest majority possible, a 7:5 of the twelve sitting Judges, and that all five dissenters wrote or joined dissenting opinions – attacking the majority’s reasoning in no uncertain terms.

One point mentioned in the joint dissenting opinion of Judges Owada, Tomka, and Keith deserves in my view special attention. First, as the dissenters point out, it is problematic to allow a dispute in the sense of Article 60 between states to be based on the views of any territorial subunit or authority of one state. However, it is a second, in my view equally dangerous step not stressed in the dissent, to allow the inference from action or inaction of a state institution, to the conclusion that such state must interpret the obligation at issue as one of conduct, rather than result. Simply put, the argument goes like this: if Texas schedules the execution of Medellin, Texas/the United States must believe themselves not to be under an obligation to comply with the ICJ judgment which imposes an obligation of result. This logic would allow a state party to a case already adjudicated by the ICJ, in which an obligation of result was found to be upon another party, to bring a claim to the ICJ for interpretation of the judgment under Article 60, whenever the other state threatens to violate or has already violated the respective obligation of result. Even if some would hope differently, there is at present no basis for bringing such a claim against a state before the ICJ for failure to implement, as it were, a judgment of the Court.

Adding to the problems, all dissenters criticized that the order of provisional measures did not add anything beyond obligations the United States was already under by the terms of the Avena judgment, namely to provide review and reconsideration to all individuals identified in it. This of course precludes the possibility of executing an individual that has not yet been afforded such review and reconsideration.

All in all, the Order of Provisional Measures stirred up a lot of controversy, but sadly failed to achieve its main objective. Despite the ICJ’s Order of Provisional Measures, Mr. Medellin was executed by the state of Texas on August 5, 2008.

Having been unable to save the life of Mr. Medellin, the ICJ delivered its Judgment on the request for interpretation about five months later, on January 19, 2009. Contrary to the decision on provisional measures, the Judgment only surprised in one respect: it all but reversed the reasoning contained in the earlier Order of Provisional Measures. In the Judgment, the Court goes to some length to construe two “possible views” of whether there was actually a conflict between the parties. One view, highlighted in paragraphs 33 and 34 is that the words and deeds of different US authorities could form the basis of a conflict of views between Mexico and the United States as to whether Article 153(9) Avena is binding on the US and all its subunits:

33. According to Mexico, the United States, by word and deed, has contradicted its avowed acceptance of review and reconsideration as an obligation of result.  Reference is made to the choice of the United States Government not to appear at the Supreme Court hearings on Mr. Medellín’s petition for a stay of execution.  Mexico also points to the very tardy attempts to engage Congress in ensuring that all constituent elements do indeed act upon this obligation.
34. Further, Mexico contends that the Supreme Court found that the obligation within paragraph 153 (9) could not be directly enforced by the judiciary on the basis of a Presidential memorandum nor otherwise without intervention of the legislature.  In Mexico’s view, this necessarily means that the obligation is not really regarded as one of result – a viewpoint not shared by the United States.

The other view, presented in para. 38 of the judgment, is that Mexico did not meet its burden to demonstrate such a dispute. The Court in effect points out that Mexico’s emphasis on different federal and state authorities came, as I had mentioned earlier, a bit out of left field and that the Court would have to puzzle Mexico’s argument together for them:

…The Application made reference to a dispute about whether the obligation in paragraph 153 (9) of the Avena Judgment was one of result; the United States rapidly signaled its agreement that the obligation incumbent upon it was an obligation of result.  The matters emphasized by Mexico seemed particularly directed to the question of implementation by the United States of the obligations incumbent upon it as a consequence of the Avena Judgment.  The various passages in the further written explanations of Mexico of 17 September 2008, while referring to certain actions and statements of the constituent organs of the United States and perceived failures to act in certain regards by the federal government, nonetheless remain very non-specific as to what the claimed dispute precisely is.  Further, it is difficult to discern, save by inference, Mexico’s position regarding the existence of a dispute as to whether the obligation of result falls upon all state and federal authorities and as to whether they share an understanding that it does so fall.

The Court then proceeds to dismiss Mexico’s request, stating that “[t]he Parties’ different stated perspectives on the existence of a dispute reveal also different contentions as to whether paragraph 153 (9) of the Avena Judgment envisages that a direct effect is to be given to the obligation contained therein.” Here the Court thus seems to be saying that the only possible dispute to be derived from Mexico’s submissions would presuppose that the Court answer not only the trivial question whether the obligations arising out of Avena are binding on all authorities of the United States, but rather the more pertinent question whether such obligations are to be directly enforceable domestically.

This in turn nicely sets up the Courts’ finish. It goes on to interpret the “question underlying Mexicos’s Request for interpretation”  to concern “the general question of the effects of a judgment of the Court in the domestic legal order of the States parties to the case in which the judgment was delivered”. This question, however, was expressly left open in the Avena judgment, which allowed the United States as the Court now observed “to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law.”
In turn, Mexico’s request for interpretation did in the view of the Court not concern the meaning or scope of the Avena Judgment. Hence the Court found that it lacked jurisdiction under Article 60.

It deserves mentioning that the Court of course underscored the continuing unconditionally binding nature of the Avena judgment, and found the United States in violation of its Order of Provisional measures as Mr. Medellin was executed contrary to it.

By now emphasizing the importance of the relation of any dispute to the interpretation of the respective judgment, the ICJ thus managed to avoid a potentially dangerous expansion of Article 60. As regards the somewhat meandering course the Court steered to finally arrive at this conclusion, it may be fair to speculate that faced with the looming certainty of Mr. Medellin’s death by execution, the uncertain possibility to somehow still find merit in Mexico’s request may have swayed some to grant the Order of Provisional Measures. In the end, however, it was legal certainty that prevailed over speculative interpretation.

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2 Responses

  1. Dapo Akande

    Carsten,

    Thank you for this very analysis of the Court’s judgment. I’ve got a few questions for you.
    i) Is the difference between the provisional measures decision and the merits decision adequately explained by the different standard for jurisdiction (prima facie jurisdiction) that the court applies in provisional measures requests?
    ii) when the Court says that the judgment does not set out what effect it is to have in domestic law, is it not interpreting the judgment though it says it is not?
    iii) why do you say in the final paragraph that the court has avoided a potentially “dangerous” of Art. 60. What would be so dangerous in allowing the court to say that a State has failed to carry out its obligations (even if the respondent already agrees with it). It is perhaps superfluous and adds nothing but is it so dangerous? After all, the Court said in Avena that the US had violated the provisional measures order.

  2. Carsten Hoppe

    Dapo,

    You raise very interesting questions for discussion. I’ll react to them below, and maybe others would like to comment too.

    i) Is the difference between the provisional measures decision and the merits decision adequately explained by the different standard for jurisdiction (prima facie jurisdiction) that the court applies in provisional measures requests?

    Frankly, I do not believe that the rationale offered in para. 55 of the Order of Provisional Measures passes the standard expounded in Icelandic Fisheries, which the Court employs ever since. In my view, the two questions raised by the majority do not ‘prima facie, […] afford a possible basis on which the jurisdiction of the Court might be founded’.
    Here is the relevant part of para. 55 of the Order again:

    “…whereas, while it seems both Parties regard paragraph 153 (9) of the Avena Judgment as an international obligation of result, the Parties nonetheless apparently hold different views as to the meaning and 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;”

    In my view, neither of the two questions raised can form the basis of a dispute relating to the interpretation of Article 153(9).
    The first is a question of fact, with no relevance to the interpretation of the Avena Judgment – even if disagreement on it could be established.
    As also pointed out in the dissent of Judges Owada, Tomka, and Keith, the second question, whether the obligation falls on all federal and state authorities, was not even in Mexico’s original request for interpretation. Moreover, it is either trivial, or we have to infer that it actually asks about direct effect of the judgment in the domestic judicial system. In the first case, it does not raise a dispute, as the United States agreed all along that, for example the execution of Mr. Medellin by the state of Texas without prior review and reconsideration of his judgment and sentence, would be in violation of US international obligations.
    But even if we infer for Mexico that direct effect was the real issue, the Court should have proceeded to dismiss Mexico’s requests. To my mind it had been equally clear at the time of the Order of Provisional Measures that the Avena judgment specifically leaves it to the United States to implement Avena by the means of its own choosing.

    This leads me right into your second question:

    ii) when the Court says that the judgment does not set out what effect it is to have in domestic law, is it not interpreting the judgment though it says it is not?

    On this I agree with you that there may be other ways to reject a request for interpretation that would have required less reference to the underlying Judgment. For example, the Court could have limited itself to stating that Mexico did not demonstrate the existence of a relevant dispute.
    In the specific case, however, it does not seem to me that the Court overreached and significantly interpreted its Judgment in Avena, simply because I find it difficult to read a conclusion on direct effect into the Avena Judgment.

    The Court may have felt compelled to bridge the reasoning of its Order of Provisional Measures with the Judgment of January 19, by pointing out that there may be two views on the existence of a dispute. Having accepted that there could be a dispute, it was possible and necessary to separate, if somewhat artificially, whether that dispute also related to the meaning or scope of the judgment.

    In the end, the need for interpretation in rejecting the claim under Article 60 stems from the Court’s application of the test expounded in the Asylum case (Request for Interpretation, p. 402), which the Court references:

    “The real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.”

    Applying this test, wouldn’t the Court always “interpret” the Judgment to some degree even in rejecting the request, namely by stating that an issue has not been decided with binding force?

    All in all, my take is rather that the Court, rejecting to interpret the Judgment after having already granted provisional measures, went overboard in the interpretation of _Mexico’s request_ (hence the title of my post). But I do not think the same goes for its observations on the direct effect, or lack thereof, of Article 153(9) of Avena in the US domestic judicial system.

    The Asylum (Request for Interpretation) test also makes for a nice transition to your last question:

    iii) why do you say in the final paragraph that the court has avoided a potentially “dangerous” [expansion] of Art. 60. What would be so dangerous in allowing the court to say that a State has failed to carry out its obligations (even if the respondent already agrees with it). It is perhaps superfluous and adds nothing but is it so dangerous? After all, the Court said in Avena that the US had violated the provisional measures order.

    You are right to point out that “dangerous” may be a big word. However, I believe that the Court in Asylum (Interpretation) spelled out exactly my concern, where it stated that “[a]ny other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.” In my view, the Court would have done itself a great disservice if it had ultimately allowed an expansive view of Article 60 (as the Order of Provisional Measures seemed to allow) to become in effect a way to appeal its decisions. Wouldn’t the Court lose a lot of credibility if it began to grant requests for interpretation that can ultimately only lead to restatements of earlier Judgments in the face of a continuing failure by parties to implement them?
    Granted, in the context of an Order of Provisional measures seeking to halt a person’s execution, this “danger” may look small in the eyes of many, especially given that the Court had the opportunity to ultimately construe Article 60 much more narrowly again.