ICJ rejects Mexico's request to interpret Avena but finds United States violated provisional measures order.

• Author: Crook, John R.

In January 2009, the International Court of Justice (ICJ) decided Mexico's June 2008 suit against the United States under Article 60 of the ICJ Statute seeking an interpretation of paragraph 153(9) of the Court's March 2004 judgment in Avena. (1) The ICJ rejected Mexico's request for interpretation. (2) The Court also found, however, that the United States violated its July 2008 provisional measures order directing that Jose Ernesto Medellin not be executed while the case was under consideration, unless he first received review and reconsideration of his conviction pursuant to paragraph 153(9). (Medellin was executed by Texas in August 2008, following extensive litigation in U.S. courts.) (3)

Mexico contended that there was a dispute between the parties regarding the meaning or scope of the ICJ's directive in Avena's paragraph 153(9), requiring the United States to "provide, by means of its own choosing, review and reconsideration of the convictions andsentences of the Mexican nationals." As evidence, Mexico cited the disagreement between the U.S. federal government and the State of Texas regarding the obligation to comply with the Avena judgment, as well as the U.S. Supreme Court's decision that the judgment did not operate directly in U.S. law.

In accordance with its usual practice in cases under Article 60, the Court decided the case without a hearing. (4) By a vote of 11-1, (5) It rejected Mexico's request for an interpretation.

44. The Avena Judgment nowhere lays down or implies that the courts in the United States are required to give direct effect to paragraph 153(9). The obligation laid down in that paragraph is indeed an obligation of result which clearly must be performed unconditionally; non-performance of it constitutes internationally wrongful conduct. However, the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law. Nor moreover does the Avena Judgment prevent direct enforceability of the obligation in question, if such an effect is permitted by domestic law. In short, the question is not decided in the Court's original Judgment and thus cannot be submitted to it for interpretation under Article 60 of the Statute (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402).

45. Mexico's...