The International Court of Justice issued an order for provisional measures against the United States (US) on 16 July. The Court ordered the US to take all necessary measures to ensure that Jose Medellin and other named Mexican nationals currently on death row in Texas were not executed pending the settlement of the dispute between Mexico and the US over the interpretation of the judgment in the Avena Case – see previous post. The execution of Medellin had been scheduled for 5 August. The order of the Court puts further pressure on the US authorities to suspend the execution. The US had opposed the application for provisional measures on the grounds that there was no dispute between the two countries. The US argued that it agreed with Mexico that the judgment in the Avena Case imposed an obligation of result and it was urgently considering how to comply with the judgment, admitting that its previous attempts at compliance had failed. Nevertheless, the majority of the Court accepted that there was a dispute for the purposes of Article 60 of the ICJ Statute which gives it the power to interpret its previous judgments. Therefore the Court had jurisdiction to indicate provisional measures under Article 41 of the ICJ Statute. The majority of the Court also accepted that the other conditions for the indication of provisional measures were satisfied. The order of the Court was adopted by a majority of seven to five, with Judges Buergenthal, Owada, Tomka, Keith and Skotnikov dissenting.
I just wanted to add a few comments on the order on provisional measures issued in this case. The crux of the case was whether or not there was a dispute between the parties over the interpretation of the judgment in the Avena Case. The Court accepted that there was a dispute despite the fact that this was strongly denied by the US. The crucial finding in the order is that “while it seems that 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 obligations falls upon those authorities.” (Paragraph 55) This finding did not receive approval of all of the judges hearing the case. As noted by Judges Owada, Tomka and Keith in their joint dissenting opinion, “whether the understanding is shared by all federal and state authorities is a matter of fact and does not give rise to any matter of interpretation” and “the issue of whether the obligation ‘falls upon those authorities’ is not one of interpretation which was raised by Mexico.” (Paragraph 1 Indeed, there are problems with the way in which the Court determined that a dispute existed. The Court seems to accept that a dispute can arise between Mexico and the Texan authorities. However, as the dissenting judges point out, whilst the actions of Texas may be attributable to the US for the purposes of state responsibility, Texas cannot represent the US on the international plane. In the opinion of Judge Buergenthal, the order of the Court therefore creates “a novel and dangerous precedent regarding the legal consequences of positions espoused by local government entities that conflict with the views of national authorities concerning the nation’s international obligations and policies.” (Paragraph 24) The arguments of the dissenting judges on this point seem to have some force. Yet, is it possible to completely distinguish between attribution of actions for the purposes of state responsibility and attribution of comments for the purposes of determining whether a dispute exists?
There are more general questions about the practical effect of the order. It is difficult to see what purpose the order serves given that the US was already under an obligation to provide review and reconsideration under the Avena judgment. As Judges Owada, Tomka and Keith note, the order adds no additional protection to that already provided by the Court in its 2004 judgment. (Paragraph 2) It is true that the order probably creates additional pressure for the US to comply as soon as possible with its international obligations. However, the Court could have reiterated the obligations of the US without the imposition of provisions measures. As noted by Judge Skotnikov in his dissenting opinion, it was open to the Court to reject the application for provisional measures whilst reminding the US that it was under an obligation to ensure that no Mexican national entitled under the Avena Judgment to receive review and reconsideration is executed until such review and reconsideration takes place. (Paragraph 9). The one advantage of the approach taken by the Court is that the US is under an obligation to report to the Court of the measures taken to implement the order. The increased external scrutiny of the actions taken by the US to comply may be welcomed by Mexico. However, it does not necessarily help the US solve the problems of implementation which have largely arisen as a result of its own internal constitutional laws.
There was clearly an important human aspect to this case and Mexico can hardly be blamed for invoking any possible measures to protect its nationals. Yet, as Judges Owada, Tomka and Keith held, “humanitarian considerations cannot override the legal requirements of the Statute of the Court.” (Paragraph 1)
The case will now go to the merits. The Court has emphasised that a judgment should be reached with all possible expedition. The proceedings at the merits stage may be interesting as the Court will have to solve the “dispute” on the interpretation of the Avena Judgment which at least five of the judges and one of the parties have denied exists.