By Tobias Thienel
The State of Texas last night committed between four and six violations of international law in one go. That must be a record even for the Lone( Sta)r State. Here’s hoping that it is, and will remain so for some time.
Texas has, of course, done this by executing José Ernesto Medellín. In doing so, it has violated, most obviously, the ICJ judgment in the Case concerning Avena and Other Mexican Nationals (para. 153(11)) and the ICJ Order instituting provisional measures in Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (para. 80(b)). None of this is even remotely controversial; indeed, the United States repeatedly acknowledged, in the ICJ no less, that Mr. Medellín’s execution, in the circumstances prevailing yesterday, would violate the terms of the ICJ judgment (see pp. 13, 14 and 17 of the transcript of oral argument in the latest ICJ hearing).
But the list goes on…
Beyond that, Texas also violated Article 36(2) of the Vienna Convention on Consular Relations, from which the ICJ has persuasively derived the requirement that anyone whose rights under Article 36(1) had been violated would be entitled to ‘review and reconsideration’ of their cases (see the Avena judgment, at paras. 128 et seq., and LaGrand, paras. 125 et seq.). Article 36(2), of course, provides that the ‘laws and regulations [of the receiving State] must enable full effect to be given to the purposes for which the rights accorded under this article are intended.’
The fourth violation is more even more straightforward. Article 6 of the International Covenant on Civil and Political Rights enshrines the right to life and bans all arbitrary deprivations of life. ‘Arbitrary’, of course, simply means ‘unlawful’ (cf. Martinez v. City of Los Angeles, 141 F.3d 1373, 1384 (9th Cir. 1998)), and the killing of Mr. Medellín was patently unlawful for all the above reasons (see also, for the proposition that a prior violation of the convicted person’s VCCR rights renders any execution arbitrary, the Advisory Opinion of the Inter-American Court of Human Rights in The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, para. 137).
For much the same reasons, the United States, through its organs in the State of Texas, has violated Article 6(2) of the ICCPR, under which ‘sentence of death may be imposed ‘only in accordance with the law [of the State party].’ This, of course, means that ‘the strictest and most rigorous enforcement of judicial guarantees is required’ (the IACtHR Opinion, at para. 136; see also paras. 131-132).
The sixth violation may be less clear-cut. In the Opinion I have just cited, the Inter-American Courthas held also that the VCCR right violated in Mr. Medellín’s case, the right to be informed of the option of consular assistance, formed a part of the right to a fair trial (para. 122). The European Court of Human Rights has further held that it would be a violation of the provision against inhuman and degrading treatment to impose sentence of death following an unfair trial (Öcalan v. Turkey, para. 169). This is readily understandable, given that any unfairness will increase a person’s fear of being executed, and possibly their feeling that this sentence has been wrongly imposed on them. Whether that is so in any one case is, of course, a sensitive question of fact. Not every violation of the right to a fair trial causes any anguish. Whether any might have done in Mr. Medellín’s case I am in no position to say.
So, what now?
For the purposes of domestic law, I fear that this first execution immediately opposed to the Avena judgment may decrease such already slim chances as there are of Congressional action to secure compliance with Avena. If Congress acted now, it would lay itself open to the charge of having done too late what it would then imply would have been necessary even before yesterday. As cruel as this may seem, Congress may think it right to save either everyone or no-one. The first option is now off the table.
In international law, an interesting question arises as to the competence of the ICJ to now speak on what the US has done.
Until now, Mexico has only put in a request to the Court to give an authoritative interpretation of its earlier judgment, under Article 60 of its Statute. The Court has jurisdiction to do this already under its Statute, without any need for any further expression of consent. But under this procedure of interpretation, the Court can only clarify what its earlier judgment has meant to say all along; it therefore cannot rule on whether the US has failed to comply with the judgment in anything it has done. The interpretation procedure is ancillary to the Court’s earlier work; it does not address State responsibility under Article 94(1) of the UN Charter (the duty to comply with the judgment).
Things may be different, in a way, after the Court has ordered its provisional measures in the new Avena case, and after the US has directly violated its obligation to comply with those measures. They are, of course, binding, as the Court has by now repeatedly held (LaGrand, paras. 98 et seq.; Armed Activities on the Territory of the Congo, para. 263). As a consequence of that, the Court now also claims an inherent jurisdiction to rule on whether a party to a case has violated its obligations under provisional measures instituted by the Court. It has already done so in LaGrand, where it found that the US had ‘breached the obligation incumbent upon it under the Order indicating provional measures’ (para. 128(5); see also para. 115 in fine). The LaGrand case, of course, was itself jurisdictionally limited, in that the basis of the Court’s jurisdiction did not allow it to address all and any wrongful acts by either of the parties; it was, on the main part of the case, limited to the VCCR. That did not prevent it from finding the US also in violation of the provisional measures Order, so the competence involved there was of necessity inherent in the Court under the Statute. The Court can protect the integrity of its own procedure by ordering provisional measures, and by ruling on their implementation, whatever the main proceedings may be about. If, therefore, interim measures have been thought necessary in an Article 60 procedure, then the Court’s inherent jurisdiction to follow up on such measures is also present.
This being so, it is now open to Mexico to ask the Court to find that, in executing José Ernesto Medellín, the United States has failed to comply with the Court’s Order instituting provisional measures.
But I suppose we all know how much good that’s going to do…