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struggle4progress Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-24-09 02:46 AM
Original message
International Court of Justice Press Release No. 2009/4:
Edited on Sat Jan-24-09 02:49 AM by struggle4progress
No. 2009/4
19 January 2009

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning
Avena and Other Mexican Nationals (Mexico v. United States of America)
(Mexico v. United States of America)

The Court finds that the matters raised by Mexico cannot give rise to an interpretation
of the Judgment and that the United States of America has breached the
Order indicating provisional measures of 16 July 2008 in the case of
Mr. Jos Ernesto Medelln Rojas, executed on 5 August 2008

THE HAGUE, 19 January 2009. The International Court of Justice (ICJ), the principal judicial organ of the United Nations, today rendered its Judgment in the case concerning the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America).

In its Application of 5 June 2008, Mexico asked the Court to interpret paragraph 153 (9) of the Avena Judgment. That paragraph reads as follows:

“153. For these reasons,
The Court . . .
(9) By fourteen votes to one,
Finds 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 referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the <Vienna> Convention <on Consular Relations> and of paragraphs 138 to 141 of <the present> Judgment.”

In the Judgment rendered today, which is final, binding and without appeal, the Court,

“(1) By eleven votes to one,
Finds that the matters claimed by the United Mexican States to be in issue between the Parties, requiring an interpretation under Article 60 of the Statute, are not matters which have been decided by the Court in its Judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), including paragraph 153 (9), and thus cannot give rise to the interpretation requested by the United Mexican States;

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(2) <b>Unanimously,
Finds that the United States of America has breached the obligation incumbent upon it under the Order indicating provisional measures of 16 July 2008, in the case of Mr. Jos Ernesto Medelln Rojas</b>;
(3) By eleven votes to one,
Reaffirms the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment and takes note of the undertakings given by the United States of America in these proceedings;
(4) By eleven votes to one,
Declines, in these circumstances, the request of the United Mexican States for the Court to order the United States of America to provide guarantees of non-repetition;
(5) By eleven votes to one,
Rejects all further submissions of the United Mexican States.”

Reasoning of the Court

1. Request for interpretation of the Avena Judgment

⎯ Question of the existence of a dispute as to the meaning and scope of the Avena Judgment
The Court recalls that Mexico’s Request for interpretation of paragraph 153 (9) of the Avena Judgment was made by reference to Article 60 of the Statute. That Article provides that “<t>he judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” The Court therefore examines whether the conditions indicated in Article 60 are satisfied and whether such a dispute exists between the Parties in the present case, as is claimed by Mexico.

The Court notes first that there is no dispute between the Parties as to whether paragraph 153 (9) lays down an obligation of result.

The Court then seeks to establish whether a dispute between the Parties might exist as to those upon whom that obligation of result specifically falls. It observes that the question of whether such a dispute exists within the meaning of Article 60 of its Statute can be perceived in two ways.
On the one hand, it indicates that a variety of factors suggest that there is a difference of perception between the Parties as to those upon whom the obligation falls. It recalls that, according to Mexico, the interpretation given by the United States Supreme Court in the Medelln v. Texas case (Supreme Court Reporter, Vol. 128, 2008, p. 1346) — namely that the judgments of the International Court of Justice are not, as such, directly applicable within the domestic legal order of the United States — “is inconsistent with the interpretation of the Avena Judgment as imposing an obligation of result incumbent on all constituent organs of the United States, including the judiciary”.

On the other hand, the Court points to factors that suggest, on the contrary, that there is no dispute between the Parties as to those upon whom the Avena Judgment specifically falls. The Court emphasizes that, under Article 98 (2) of the Rules of Court, any request for interpretation submitted to it must indicate “the precise point or points in dispute”. It notes that Mexico

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“nonetheless remain<s> very non-specific as to what the claimed dispute precisely is” and consequently observes that, “<w>hether in terms of meeting the requirements of Article 98 (2) of the Rules, or more generally, it could be argued that in the end Mexico has not established the existence of any dispute between itself and the United States”, and that “Mexico did not specify that the obligation of the United States under the Avena Judgment was directly binding upon its organs, subdivisions or officials, although this might be inferred from the arguments it presented”.
⎯ Question of the direct effect of the obligation established in paragraph 153 (9) of the Avena Judgment

In the view of the Court, the Parties’ different stated perspectives reveal “different contentions as to whether paragraph 153 (9) . . . envisages that a direct effect is to be given to the obligation contained therein”. Be that as it may, the Court considers that “there would be a further obstacle to granting the request of Mexico even if a dispute in the present case were ultimately found to exist within the meaning of Article 60 of the Statute”. It notes that “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)”; and it observes that, according to its settled jurisprudence, a question which was not decided in an initial Judgment “cannot be submitted to it for interpretation” in the present Judgment. The Court concludes from this that it “cannot accede to Mexico’s Request for interpretation” of the Avena Judgment.

The Court nonetheless adds that “considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation”. It points out that “<a> choice of means was allowed to the United States in the implementation of its obligation and, failing success within a reasonable period of time through the means chosen, it must rapidly turn to alternative and effective means of attaining that result”.

2. Additional claims made by Mexico

The Court then turns to the three additional claims presented by Mexico, which takes the view that by executing Mr. Jos Ernesto Medelln Rojas on 5 August 2008 without having provided him with the review and reconsideration required under the Avena Judgment, the United States has (1) breached the Order indicating provisional measures of 16 July 2008; (2) breached the Avena Judgment itself; and (3) must provide guarantees of non-repetition.

On the first point, the Court “finds that the United States did not discharge its obligation under the Court’s Order of 16 July 2008, in the case of Mr. Jos Ernesto Medelln Rojas”. The Court dismisses Mexico’s second additional claim, noting that “the only basis of jurisdiction relied upon for this claim in the present proceedings is Article 60 of the Statute, and . . . that Article does not allow it to consider possible violations of the Judgment which it is called upon to interpret”. Lastly, the Court reiterates that “its Avena Judgment remains binding and that the United States continues to be under an obligation fully to implement it”; taking note of the undertakings given by the United States of America in these proceedings, it dismisses the third of the additional claims.

Composition of the Court

The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Seplveda-Amor, Bennouna, Skotnikov; Registrar Couvreur.
*

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Judges Koroma and Abraham append declarations to the Judgment of the Court; Judge Seplveda-Amor appends a dissenting opinion to the Judgment of the Court.
___________
A summary of the Judgment appears in the document “Summary No. 2009/1”, to which summaries of the declarations and the dissenting opinion are annexed. In addition, this press release, the summary and the full text of the Judgment can be found on the Court’s website (www.icj-cij.org ) under “Cases”.
___________
Information Department:
Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+31 (0)70 302 2394)
Mrs. Barbara Dalsbaek, Administrative Assistant (+31 (0)70 302 2396)

<pdf of above press release:> http://www.icj-cij.org/docket/files/139/14937.pdf?PHPSE...

<pdf of decision:> http://www.icj-cij.org/docket/files/139/14939.pdf?PHPSE...

<ICJ website:> http://www.icj-cij.org/homepage/index.php?lang=en
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justinaforjustice Donating Member (519 posts) Send PM | Profile | Ignore Sat Jan-24-09 10:08 AM
Response to Original message
1. Factual Context Needed Here.
Just from reading the quotations posted here, I have no idea what the significance of this story is nor what the factual basis for the case at the international court is. Could you provide additional information explaining the underlying facts?
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struggle4progress Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-24-09 12:16 PM
Response to Reply #1
2. US defied order in death row case, says ICJ
US defied order in death row case, says ICJ

New York (PTI): United Nations' principal judicial organ on Tuesday found that the United States had breached its orders when Texas last year executed a Mexican national who had not been informed of his right to contact his consular representatives.

Ruling in The Hague on a complaint from Mexico, the International Court of Justice found that the US was obliged to review and reconsider the convictions and sentences of other Mexican nationals whose rights under the 1963 Vienna Convention on consular representation may have been violated. Jos Ernesto Medelln Rojas was executed after being convicted of rape and murder last August.

The Court found that the US had specifically breached its obligation under an ICJ order of July 16, 2008, calling on it to "take all measures necessary to ensure" that Medelln and four other Mexicans not be executed pending judgment on a suit by the Mexican Government.

http://www.hindu.com/thehindu/holnus/003200901201002.ht...

PRESS RELEASE
August, 06 2008

USA: Texas execution violates international law

"The execution of Jos Ernesto Medelln Rojas by the state of Texas is a violation of international law," said Amnesty International today. "It undermines the authority of the International Court of Justice (ICJ) which had ruled in favour of a stay of execution."

One of the US Supreme Court Justices, hearing the last-minute appeal for a stay of execution yesterday, said that to allow the execution to go forward would leave the USA “irremediably in violation of international law and break our treaty promises”. The appeal was lost by 5 votes to 4 and the execution took place shortly afterwards.

It followed worldwide appeals for Medelln's death sentence to be commuted, including from the United Nations Secretary-General, who had called on states to respect the decisions and orders of the International Court of Justice ...

http://www.amnestyusa.org/document.php?id=ENGPRE2008080...

Mexico asks World Court to force U.S. review of convictions
Thu Jun 5, 2008 4:49pm EDT

AMSTERDAM (Reuters) - Mexico asked the World Court on Thursday to press the United States to review the convictions of 51 Mexicans on death row and to prevent them from being executed pending the procedure.

The International Court of Justice (ICJ) in The Hague ruled in March 2004 that the United States had violated international law by failing to inform the arrested Mexicans of their right to consular assistance and said the cases should be reviewed.

"Requests by Mexican nationals for the review and reconsideration ... have repeatedly been denied," Mexico said in its application, filed to the court on Thursday ...

http://www.reuters.com/article/domesticNews/idUSL058861...

QUESTIONS AND ANSWERS ABOUT MEDELLIN V. DRETKE

... Most Mexicans on death row in the U.S. were denied their rights under the VCCR, and the government of Mexico brought a suit before the ICJ as provided in the Optional Protocol. That lawsuit, brought on behalf of Medellin and 53 other Mexican nationals who had been sentenced to death in the United States, is referred to as the Avena case.

In March of 2004, the ICJ determined in Avena that the U.S. government had failed to comply with the requirements of the VCCR, and it directed that U.S. courts give the death row inmates "effective judicial review and reconsideration" of their convictions and sentences in light of this failure, without applying procedural default rules (such as, that this claim should have been raised at the original trial) to prevent consideration of the defendants' claims.

Texas courts had previously denied Medellin’s Vienna Convention claim, and two federal courts refused to overturn the rulings of the Texas courts. The United States Court of Appeals for the Fifth Circuit acknowledged the ICJ’s judgment in Avena, but held that it was precluded from giving effect to the judgment by prior U.S. Supreme Court precedent. The court ruled that, because Medellin had not raised the Vienna Convention claim at the trial stage (during the time that he was represented by unlicensed counsel), his appeal was procedurally defaulted. The court further stated that the VCCR does not serve to confer rights upon individuals ...

... on March 7, 2005, in a letter from Secretary of State Condoleezza Rice to U.N. Secretary General Kofi Annan, the administration notified the U.N. that the United States is withdrawing from the Optional Protocol to the VCCR. The Executive Order to review the cases still stands, but the withdrawal from the Optional Protocol affects future disputes, and reverses the U.S.’s former decision to grant the ICJ decision-making authority over these disputes ...

http://www.deathpenaltyinfo.org/node/1388






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Baby Snooks Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jan-24-09 02:43 PM
Response to Reply #2
3. Read this very carefully...
"... on March 7, 2005, in a letter from Secretary of State Condoleezza Rice to U.N. Secretary General Kofi Annan, the administration notified the U.N. that the United States is withdrawing from the Optional Protocol to the VCCR. The Executive Order to review the cases still stands, but the withdrawal from the Optional Protocol affects future disputes, and reverses the U.S.s former decision to grant the ICJ decision-making authority over these disputes ..."

In other words, the United States informed the United Nations that while it expects the United Nations to enforce international law it does not believe that international law applies to the United States.

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