By Tobias Thienel

The ICJ has today delivered its judgment on Mexico’s application for an interpretation of the 2004 judgment in Avena and Other Mexican Nationals. The Court declined to proceed to the interpretation sought by Mexico, but in so doing made some statements on what Avena did and did not decide, and also on some other issues of substantive and procedural law. Today’s judgment is this: 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).

The Court declined to say whether the contentions of the US and Mexico disclosed any actual dispute between them. The US, for its part, had argued that the Court was without jurisdiction under Article 60 of its Statute to interpret Avena because the parties were already agreed on what Avena meant. The Court took it upon itself to distill from the various submissions some conflicts of opinion that might conceivably qualify as a ‘dispute’ concerning the proper interpretation of Avena. It also suggested, however, that it might not be the Court’s job to do this, and that Mexico should really have substantiated the nature of the dispute with a good deal more precision. In the end, however, the Court held that, whatever the precise dispute might be about, it did not relate to any of the actual content of the Avena judgment. The dispute – if any – therefore fell outwith the reach of the Court’s interpretative competence.

The Court said that ‘[t]he Parties’ different stated perspectives on the existence of a dispute reveal also different contentions as to whether [Avena] envisages that a direct effect is to be given to the obligation contained therein.’ On this point, the Court held that the question of whether the Avena judgment had to or did have direct effect in the domestic legal order of the US was not a question addressed in Avena at all.

The Court said:

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 argument, as described in paragraph 31 above, concerns 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, not the "meaning or scope" of the Avena Judgment, as Article 60 of the Court’s Statute requires.

Avena had never said, therefore, either that the US had to recognise the obligations arising from Avena as directly effective in domestic law, or that it did not have to do so. Obviously, the Court here describes as ‘direct effect’ what the Supreme Court would recognise as ‘self-executing effect.’ The Supreme Court had held in Medellín v. Texas that the obligation to comply with Avena was not self-executing. Now, that holding may not be entirely beyond doubt; in particular, it may be that the Supreme Court was wrong in speaking of Article 94(1) of the Charter, the general obligation to comply with ICJ judgments, as self-executing or not, as opposed to the specific obligation arising from Avena. But however that may be, the ICJ has now declined to engage the Supreme Court on this – except to note, briefly, that it did not necessarily agree with everything the Justices in Washington had said.

I would suggest the ICJ was right to hold back on this point. What is has said of the effect of the Avena judgment is largely true of international law generally: States are bound to comply with international law, but they are free as to the means by which they do so. They may accept their international obligations as having direct effect in domestic law. In fact, this may be the most effective way of securing compliance with international law, seeing as conflicts between domestic and international law are thus (largely) avoided, through some interaction at the domestic level. This may be especially useful in the context of international human rights law, where domestic law, governing as it does the activities of private individuals, plays a larger role than it does in more intergovernmental areas of international law (cf. on all of this McCann and Others v. United Kingdom, para. 153; Smith and Grady v. United Kingdom, para. 135). However, if a result conforming to international law is reached by the application only of domestic law, international law is completely satisfied. Whether this result should or should not be secured by giving international law direct effect is entirely for domestic law to decide. [Note that EC law is a different matter altogether.]

Concluding this part of the judgment, the Court added this, on the obligation of the US to comply with Avena:

[C]onsiderations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation. 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.

In other words, the mere fact that domestic law may not have allowed for full compliance with Avena does not relieve the US of its continuing obligation to comply. That is, of course, a rather modest application of the general rule by which domestic law cannot affect a State’s responsibility under international law (see Article 3 of the ILC Articles on State Responsibility, and Commentary thereto, UN Doc. A/56/10, pp. 74 et seq.). In the last part of the cited passage, the Court also hinted that Medellín (the Supreme Court case) was not the end of the road. Securing compliance with Avena through the doctrine of self-executing treaties has not worked, but that does not mean that compliance should no longer be pursued.

Does the Court seem a little less than satisfied with Medellín? I guess so, but no more than it could reasonably be. The ICJ has not criticised the Supreme Court, but it has underlined that Avena is still binding. In fact, the Court has done exactly that: it has put a paragraph in the operative part of today’s judgment to record that Avena continues to bind the US, and to take note of the ‘undertakings’ of the US made in the oral proceedings, according to which the US Government will continue to work for the implementation of the judgment.

The Court also found that the US had violated the obligation arising from its Order instituting Provisional Measures of 16 July 2008, by which it had ordered the US, inter alia, not to execute José Ernesto Medellín while the proceedings were pending. When Texas nevertheless did proceed to execute Medellín on 5 August 2008, the US violated the Order. In so holding, the Court expressly affirmed that it has an incidental jurisdiction not only to indicate binding provisional measures, but also to find that a party has violated the terms of a provisional measure addressed to it.

The Court did not, however, accede to Mexico’s request to also hold that the US had violated the obligations incumbent upon it from the Avena judgment. Any such finding would have required a form of merits jurisdiction that the Court did not have. The Court’s jurisdiction was based only on Article 60 of its Statute, which allows the Court to interpret a prior judgment, that is to say, to explain what a prior judgment entailed for the parties. The jurisdiction under Article 60 is incidental in nature; it is intended to support the purpose of the earlier judgment by clarifying the original order to the parties. The Court’s task under Article 60 is therefore essentially backward-looking: in interpreting its earlier pronouncement, the Court will ideally improve on its earlier effort, but will not add to it. Article 60 puts the Court into the shoes of the earlier Bench, so the Court cannot take note of any later developments (except in the service of clarification) and so cannot pronounce on the legality of measures subsequent to the earlier judgment. Moreover, the Court is specifically limited to elucidating the res judicata of the first judgment, and certainly cannot create any new res judicata by examining a wholly different set of facts.

Today’s judgment, then, represents a dispassionate treatment of the binding force of Avena, and certainly does not fall prey to any desire to put one over on the Supreme Court of the United States for Medellín. To the extent that Mexico may have wanted to ‘appeal’ Medellín to the World Court (as it were), it failed, and rightly so. Whether that will help the eventual implementation of Avena in the US remains to be seen. My guess is that today’s judgment is politically fairly neutral. Here’s hoping the same won’t be true – as regards the fate of Avena – of tomorrow’s events in Washington…