         INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

    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)

         JUDGMENT OF 19 JANUARY 2009

                2009
         COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

    DEMANDE EN INTERPRE     u TATION
      DE L’ARRE | T DU 31 MARS 2004
             EN L’AFFAIRE
AVENA ET AUTRES RESSORTISSANTS MEXICAINS
   (MEXIQUE c. ÉTATS-UNIS D’AMÉRIQUE)
      (MEXIQUE c. E
                  u TATS-UNIS D’AMÉRIQUE)

           ARRE
              | T DU 19 JANVIER 2009

                            Official citation :
    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), Judgment, I.C.J. Reports 2009, p. 3

                       Mode officiel de citation :
        Demande en interprétation de l’arrêt du 31 mars 2004
         en l’affaire Avena et autres ressortissants mexicains
                 (Mexique c. Etats-Unis d’Amérique)
  (Mexique c. Etats-Unis d’Amérique), arrêt, C.I.J. Recueil 2009, p. 3

                                              Sales number
ISSN 0074-4441
ISBN 978-92-1-071055-8
                                              No de vente :   946

                                19 JANUARY 2009

                                  JUDGMENT

      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)

       DEMANDE EN INTERPRE   u TATION
        DE L’ARRE| T DU 31 MARS 2004
               EN L’AFFAIRE
AVENA ET AUTRES RESSORTISSANTS MEXICAINS
   (MEXIQUE c. ÉTATS-UNIS D’AMÉRIQUE)
    (MEXIQUE c. ÉTATS-UNIS D’AMÉRIQUE)

                                 19 JANVIER 2009

                                     ARRE
                                        |T

               3

                              INTERNATIONAL COURT OF JUSTICE
   2009                                          YEAR 2009
19 January
General List
 No. 139                                       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)

                  Article 60 of the Statute of the Court — Independent basis of jurisdiction.
                  Conditions on the exercise of jurisdiction to entertain a request for interpreta-
               tion — Question of the existence of a dispute as to the meaning or scope of
               paragraph 153 (9) of the Judgment of 31 March 2004 — For the Court to
               determine whether a dispute exists — No dispute as to whether para-
               graph 153 (9) lays down an obligation of result.

                  Question of the existence of a dispute as to those upon whom the obligation of
               result specifically falls — Two possible approaches based on the Parties’ posi-
               tions — Possible existence of a dispute as to those upon whom the obligation
               specifically falls — Possible absence of a dispute on this point failing a suffi-
               ciently precise indication.
                  Question of the direct effect of the obligation established in para-
               graph 153 (9) — No decision in the Judgment of 31 March 2004 as to the direct
               effect of the obligation — Question of direct effect therefore cannot be the subject
               of a request for interpretation — Reiteration of the principle that consider-
               ations of domestic law cannot in any event relieve the Parties of obligations
               deriving from judgments of the Court.

                                                        *
                  Question of breach by the United States of its legal obligation to comply with
               the Order indicating provisional measures of 16 July 2008 — Court’s jurisdic-
               tion to rule on this question in proceedings on a request for interpretation

               4

4                  REQUEST FOR INTERPRETATION (JUDGMENT)

— Question of possible violation by the United States of the Judgment of
31 March 2004 — Lack of jurisdiction of the Court to consider this question in
proceedings for interpretation.

                                      *
  Mexico’s request for the Court to order the United States to provide guaran-
tees of non-repetition — Binding character of the Judgment of 31 March 2004
— Undertakings already given by the United States.

                                JUDGMENT

Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA,
          KOROMA, BUERGENTHAL, OWADA, TOMKA, ABRAHAM, KEITH,
          SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV ; Registrar COUVREUR.

  In the case concerning the Request for interpretation of the Judgment of
31 March 2004,
    between
the United Mexican States,
represented by
    H.E. Mr. Juan Manuel Gómez-Robledo, Ambassador, Under-Secretary for
      Multilateral Affairs and Human Rights, Ministry of Foreign Affairs of
      Mexico,
    H.E. Mr. Joel Antonio Hernández García, Ambassador, Legal Adviser,
      Ministry of Foreign Affairs of Mexico,
    H.E. Mr. Jorge Lomónaco Tonda, Ambassador of Mexico to the Kingdom
      of the Netherlands,
    as Agents,
    and
the United States of America,
represented by
    Mr. John B. Bellinger, III, Legal Adviser, United States Department of
     State,
    as Agent ;
    Mr. James H. Thessin, Deputy Legal Adviser, United States Department of
     State,
    as Co-Agent,

5

5                  REQUEST FOR INTERPRETATION (JUDGMENT)

    THE COURT,
    composed as above,
    after deliberation,
    delivers the following Judgment :
   1. On 5 June 2008, the United Mexican States (hereinafter “Mexico”) filed in
the Registry of the Court an Application instituting proceedings against the
United States of America (hereinafter “the United States”), whereby, referring
to Article 60 of the Statute and Articles 98 and 100 of the Rules of Court, it
requests the Court to interpret paragraph 153 (9) of the Judgment delivered by
the Court on 31 March 2004 in the case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America) (I.C.J. Reports 2004 (I),
p. 12) (hereinafter “the Avena Judgment”).
   2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately transmitted to the Government of the United States by the Regis-
trar ; and, pursuant to Article 40, paragraph 3, all States entitled to appear
before the Court were notified of the Application.
   3. On 5 June 2008, after filing its Application, Mexico, referring to Article 41
of the Statute and Articles 73, 74 and 75 of the Rules of Court, filed in the
Registry of the Court a request for the indication of provisional measures in
order “to preserve the rights of Mexico and its nationals” pending the Court’s
judgment in the proceedings on the interpretation of the Avena Judgment.
   By an Order of 16 July 2008 (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),
Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008), the Court,
having rejected the submission by the United States seeking the dismissal of the
Application filed by Mexico (p. 331, para. 80 (I)) and its removal from the
Court’s General List, indicated the following provisional measures (pp. 331-
332, para. 80 (II)) :
      “(a) The United States of America shall take all measures necessary to
           ensure that Messrs. José Ernesto Medellín Rojas, César Roberto
           Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García,
           and Roberto Moreno Ramos are not executed pending judgment on
           the Request for interpretation submitted by the United Mexican
           States, unless and until these five Mexican nationals receive review
           and reconsideration consistent with paragraphs 138 to 141 of the
           Court’s Judgment delivered on 31 March 2004 in the case concern-
           ing Avena and Other Mexican Nationals (Mexico v. United States
           of America) ;
       (b) The Government of the United States of America shall inform the
           Court of the measures taken in implementation of this Order.”

  It also decided that, “until the Court has rendered its judgment on the
Request for interpretation, it shall remain seised of the matters” which form the
subject of the Order (p. 332, para. 80 (III)).
  4. By letters dated 16 July 2008, the Registrar informed the Parties
that the Court, pursuant to Article 98, paragraph 3, of the Rules of Court,
had fixed 29 August 2008 as the time-limit for the filing of Written

6

6                 REQUEST FOR INTERPRETATION (JUDGMENT)

Observations by the United States on Mexico’s Request for interpretation.

  5. By a letter dated 1 August 2008 and received in the Registry the same day,
the Agent of the United States, referring to paragraph 80 (II) (b) of the Order
of 16 July 2008, informed the Court of the measures which the United States
“ha[d] taken and continue[d] to take” to implement that Order.
  6. By a letter dated 28 August 2008 and received in the Registry the same
day, the Agent of Mexico, informing the Court of the execution on
5 August 2008 of Mr. José Ernesto Medellín Rojas in the State of Texas,
United States of America, and referring to Article 98, paragraph 4 of the Rules
of Court, requested the Court to afford Mexico the opportunity of furnishing
further written explanations for the purpose, on the one hand, of elaborating
on the merits of the Request for interpretation in the light of the Written
Observations which the United States was due to file and, on the other, of
“amending its pleading to state a claim based on the violation of the Order of
16 July 2008”.
  7. On 29 August 2008, within the time-limit fixed, the United States filed its
Written Observations on Mexico’s Request for interpretation.

   8. By letters dated 2 September 2008, the Registrar informed the Parties that
the Court had decided to afford each of them the opportunity of furnishing
further written explanations, pursuant to Article 98, paragraph 4, of the Rules
of Court, and had fixed 17 September and 6 October 2008 as the time-limits for
the filing by Mexico and the United States respectively of such further explana-
tions. These were filed by each Party within the time-limits thus fixed.

                                        *
    9. In the Application, the following requests were made by Mexico :
         “The Government of Mexico asks the Court to adjudge and declare that
      the obligation incumbent upon the United States under paragraph 153 (9)
      of the Avena Judgment constitutes an obligation of result as it is clearly
      stated in the Judgment by the indication that the United States must pro-
      vide ‘review and reconsideration of the convictions and sentences’ but
      leaving it the ‘means of its own choosing’ ;
      and that, pursuant to the foregoing obligation of result,
      1. the United States must take any and all steps necessary to provide the
          reparation of review and reconsideration mandated by the Avena Judg-
          ment ; and
      2. the United States must take any and all steps necessary to ensure that
          no Mexican national entitled to review and reconsideration under the
          Avena Judgment is executed unless and until that review and reconsid-
          eration is completed and it is determined that no prejudice resulted
          from the violation.”
  10. In the course of the proceedings, the following submissions were presented
by the Parties :
On behalf of Mexico,
in the further written explanations submitted to the Court on 17 September
2008 :

7

7               REQUEST FOR INTERPRETATION (JUDGMENT)

      “Based on the foregoing, the Government of Mexico asks the Court to
    adjudge and declare as follows :
    (a) That the correct interpretation of the obligation incumbent upon the
        United States under paragraph 153 (9) of the Avena Judgment is that
        it is an obligation of result as it is clearly stated in the Judgment by
        the indication that the United States must provide ‘review and recon-
        sideration of the convictions and sentences’ ;
        and that, pursuant to the interpretation of the foregoing obligation of
        result,
         (1) the United States, acting through all of its competent organs and
             all its constituent subdivisions, including all branches of govern-
             ment and any official, state or federal, exercising government
             authority, must take all measures necessary to provide the repara-
             tion of review and reconsideration mandated by the Avena
             Judgment in paragraph 153 (9) ; and

         (2) the United States, acting through all its competent organs and all
             its constituent subdivisions, including all branches of govern-
             ment and any official, state or federal, exercising government
             authority, must take all measures necessary to ensure that no
             Mexican national entitled to review and reconsideration under
             the Avena Judgment is executed unless and until that review and
             reconsideration is completed and it is determined that no pre-
             judice resulted from the violation ;

    (b) That the United States breached the Court’s Order of 16 July 2008
        and the Avena Judgment by executing José Ernesto Medellín Rojas
        without having provided him review and reconsideration consistent
        with the terms of the Avena Judgment ; and
    (c) That the United States is required to guarantee that no other Mexi-
        can national entitled to review and reconsideration under the Avena
        Judgment is executed unless and until that review and reconsideration
        is completed and it is determined that no prejudice resulted from the
        violation.”
On behalf of the United States,
in its Written Observations submitted on 29 August 2008 :
       “On the basis of the facts and arguments set out above, the Government
    of the United States of America requests that the Court adjudge and
    declare that the application of the United Mexican States is dismissed, but
    if the Court shall decline to dismiss the application, that the Court adjudge
    and declare an interpretation of the Avena Judgment in accordance with
    paragraph 62 above.” (Para. 63.)
    Paragraph 60 of the Written Observations of the United States includes
    the following :
       “And the United States agrees with Mexico’s requested interpretation ;
    it agrees that the Avena Judgment imposes an ‘obligation of result’. There
    is thus nothing for the Court to adjudicate, and Mexico’s application must
    be dismissed.”

8

8               REQUEST FOR INTERPRETATION (JUDGMENT)

    Paragraph 62 of the Written Observations of the United States includes
    the following :
    “the United States requests that the Court interpret the Judgment as
    Mexico has requested — that is, as follows :
            “[T]he obligation incumbent upon the United States under para-
         graph 153 (9) of the Avena Judgment constitutes an obligation of
         result as it is clearly stated in the Judgment by the indication that the
         United States must provide ‘review and reconsideration of the convic-
         tions and sentences’ but leaving it the ‘means of its own choosing’” ;

in the further written explanations submitted to the Court on 6 October 2008 :
      “On the basis of the facts and arguments set out above and in the
    United States’ initial Written Observations on the Application for Inter-
    pretation, the Government of the United States of America requests that
    the Court adjudge and declare that the application of the United Mexican
    States for interpretation of the Avena Judgment is dismissed. In the alter-
    native and as subsidiary submissions in the event that the Court should
    decline to dismiss the application in its entirety, the United States requests
    that the Court adjudge and declare :
    (a) that the following supplemental requests by Mexico are dismissed :

         (1) that the Court declare that the United States breached the
             Court’s July 16 Order ;
         (2) that the Court declare that the United States breached the Avena
             Judgment ; and
         (3) that the Court order the United States to issue a guarantee of
             non-repetition ;
    (b) an interpretation of the Avena Judgment in accordance with para-
        graph 86 (a) of Mexico’s Response to the Written Observations of
        the United States.”

                                     * * *
  11. The Court recalls that in paragraph 153 (9) of the Avena Judgment
the Court had found that :
    “the appropriate reparation in this case consists in the obligation of
    the United States of America to provide, by means of its own choos-
    ing, 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 Rela-
    tions] and of paragraphs 138 to 141 of this Judgment”.
   12. Mexico asked for an interpretation as to whether paragraph 153 (9)
expresses an obligation of result and requested that the Court should so
state, as well as issue certain orders to the United States “pursuant to the
foregoing obligation of result” (see paragraph 9 above).

9

9               REQUEST FOR INTERPRETATION (JUDGMENT)

   13. Mexico’s Request for interpretation of paragraph 153 (9) of the
Court’s Judgment of 31 March 2004 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 [‘contestation’ in the French version]
as to the meaning or scope of the judgment, the Court shall construe
it upon the request of any party.”
   14. The United States informed the Court that it agreed that the obli-
gation in paragraph 153 (9) was an obligation of result and, there being
no dispute between the Parties as to the meaning or scope of the words of
which Mexico requested an interpretation, Article 60 of the Statute did
not confer jurisdiction on the Court to make the interpretation (Order,
p. 322, para. 41). In its Written Observations of 29 August 2008, the
United States also contended that the absence of a dispute about the
meaning or scope of paragraph 153 (9) rendered Mexico’s Application
inadmissible.

  15. The Court notes that its Order of 16 July 2008 on provisional
measures was not made on the basis of prima facie jurisdiction. Rather,
the Court stated that “the Court’s jurisdiction on the basis of Article 60
of the Statute is not preconditioned by the existence of any other basis of
jurisdiction as between the parties to the original case” (ibid., p. 323,
para. 44).
  The Court also affirmed that the withdrawal by the United States from
the Optional Protocol to the Vienna Convention on Consular Relations
Concerning the Compulsory Settlement of Disputes since the rendering
of the Avena Judgment had no bearing on the Court’s jurisdiction under
Article 60 of the Statute (ibid., p. 323, para. 44).
  16. In its Order of 16 July 2008, the Court had addressed whether the
conditions laid down in Article 60 “for the Court to entertain a request
for interpretation appeared to be satisfied” (ibid., p. 323, para. 45),
observing that “the Court may entertain a request for interpretation of
any judgment rendered by it provided that there is a ‘dispute as to the
meaning or scope of [the said] judgment’” (ibid., p. 323, para. 46).

   17. In the same Order, the Court pointed out that “the French and
English versions of Article 60 of the Statute are not in total harmony”
and that the existence of a dispute/“contestation” under Article 60 was
not subject to satisfaction of the same criteria as that of a dispute (“dif-
férend” in the French text) as referred to in Article 36, paragraph 2, of
the Statute (ibid., p. 325, para. 53). The Court nonetheless observed that
“it seems both Parties regard paragraph 153 (9) of the Avena Judgment
as an international obligation of result” (ibid., p. 326, para. 55).
   18. However, the Court also observed that

     “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 authori-

10

10              REQUEST FOR INTERPRETATION (JUDGMENT)

     ties and whether that obligation falls upon those authorities” (Order,
     p. 326, para. 55).

   19. The Court stated that the decision rendered on the request for the
indication of provisional measures “in no way prejudges any question
that the Court may have to deal with relating to the Request for inter-
pretation” (ibid., p. 331, para. 79).
   20. Accordingly, in the present procedure it is appropriate for the
Court to review again whether there does exist a dispute over whether the
obligation in paragraph 153 (9) of the Avena Judgment is an obligation
of result. The Court will also at this juncture need to consider whether
there is indeed a difference of opinion between the Parties as to whether
the obligation in paragraph 153 (9) of the Avena Judgment falls upon all
United States federal and state authorities.
   21. As is clear from the settled jurisprudence of the Court, a dispute
must exist for a request for interpretation to be admissible (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 ; Application
for Revision and Interpretation of the Judgment of 24 February 1982 in
the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jama-
hiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, pp. 216-217, para. 44 ; see also Request for Interpretation of the
Judgment of 11 June 1998 in the Case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelim-
inary Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports
1999 (I), p. 36, para. 12).
   22. As recalled above in paragraphs 4 and 8, by letters dated
16 July 2008 and 2 September 2008, the Registrar informed the Parties
that the Court had afforded the United States and Mexico the opportu-
nity of furnishing Written Observations and further written explanations
pursuant to Article 98, paragraphs 3 and 4, of the Rules of Court.
   23. The Court has duly considered the observations and further writ-
ten explanations of the Parties regarding the existence of any dispute
requiring interpretation as to whether the obligation to provide judicial
review and reconsideration of the convictions and sentences of the Mexi-
can nationals referred to in the Avena Judgment is an obligation of result.

  24. Mexico referred in particular to the actions of the United States
federal Executive, claiming that certain actions reflected the United States
disagreement with Mexico over the meaning or scope of the Avena Judg-
ment. According to Mexico, this difference of views manifested itself in
the position taken by the United States Government in the Supreme
Court : that the Avena Judgment was not directly enforceable under
domestic law and was not binding on domestic courts without action by
the President of the United States ; and further that the obligation under
Article 94 of the United Nations Charter to comply with judgments of

11

11              REQUEST FOR INTERPRETATION (JUDGMENT)

the Court fell solely upon the political branches of the States parties to
the Charter. In Mexico’s view,
     “the operative language [of the Avena Judgment] establishes an obli-
     gation of result reaching all organs of the United States, including
     the federal and state judiciaries, that must be discharged irrespective
     of domestic law impediments”.
Mexico maintains that the United States Government’s narrow reading
of the means for implementing the Judgment led to its failure to take all
the steps necessary to bring about compliance by all authorities con-
cerned with the obligation borne by the United States. In particular,
Mexico noted that the United States Government had not sought to
intervene in support of Mr. Medellín’s petition for a stay of execution
before the United States Supreme Court. This course of conduct is
alleged to reflect a fundamental disagreement between the Parties con-
cerning the obligation of the United States to bring about a specific result
by any necessary means. Mexico further argues that the existence of a
dispute is also shown by the fact that the competent executive, legislative
and judicial organs at the federal and Texas state levels have taken posi-
tions in conflict with Mexico’s as to the meaning or scope of para-
graph 153 (9) of the Avena Judgment.
   25. The United States has, in its Written Observations of 29
August 2008 and its further written explanations of 6 October 2008,
insisted that each of the matters brought to the attention of the Court by
Mexico concerns not a dispute regarding whether the Parties perceive the
obligations of paragraph 153 (9) as an obligation of result, but Mexico’s
dissatisfaction with the implementation to date of that obligation by the
United States. The United States claims that it has consistently agreed
with Mexico’s interpretation of paragraph 153 (9) of the Avena Judg-
ment. Specifically, it concurs that subparagraph 9 requires it to take all
necessary steps to ensure that no Mexican national named in the Judg-
ment is executed without having received the prescribed review and
reconsideration and without a determination having been made that he
has suffered no prejudice from the violation of the Convention. In par-
ticular, the United States contends that, in accordance with the discretion
left to the United States by the Court as to the choice of means of com-
pliance with the Judgment, the President elected to comply by, inter alia,
determining that the state courts were to give effect to the Judgment, as
set out in a Memorandum of 28 February 2005 to the Attorney General
of the United States. The executive branch thus argued in the case Medel-
lín v. Texas in the Supreme Court that the President’s determination was
lawful and binding on the state courts. According to the United States,
no finding as to the existence of a difference of views between the Parties
can be inferred from the controversy before the Supreme Court as to
whether or not the Court’s judgments are self-executing, because that is
strictly a matter of United States domestic law. The Supreme Court
found that the Avena Judgment created an international obligation incum-

12

12              REQUEST FOR INTERPRETATION (JUDGMENT)

bent upon the United States. Further, the United States argues that posi-
tions taken by other governmental officials in the United States cannot
provide any basis for a finding of a divergence of views between the
Parties in respect of the interpretation of the Avena Judgment ; it points
out that Mexico’s argument in this regard is founded on positions taken
by organs without the authority to express the State’s official position on
the international plane. The fact that Texas, or any other constituent part
of the United States, may hold a different interpretation of the Court’s
Judgment is therefore irrelevant to the question before the Court.
   26. The United States on several occasions reiterated that the relevant
obligation was one of result, and that while the Avena Judgment allowed
it a choice of means, it was certain that the obligation had to be complied
with.
   27. In its Order of 16 July 2008 the Court observed that “it seems both
Parties regard paragraph 153 (9) as an international obligation of result”
(Order, p. 326, para. 55). Its observations on the matter being provisional,
the Court has reviewed the contentions of the Parties in the Written Obser-
vations of 29 August 2008 and the further written explanations of 17 Sep-
tember and 6 October 2008 as to whether they both accept that the
obligation in paragraph 153 (9) is one of result — that is to say, an obli-
gation which requires a specific outcome. This means, in the particular
case, the obligation upon the United States to provide review and reconsider-
ation consistent with paragraphs 138 to 141 of the Avena Judgment
to those Mexican nationals named in the Avena Judgment who remain
on death row without having had the benefit of such review and reconsider-
ation. In addition, Messrs. José Ernesto Medellín Rojas, César Rob-
erto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García,
and Roberto Moreno Ramos were the subject of the Order on provi-
sional measures relating to that obligation issued by the Court on
16 July 2008. The Court observes that this obligation of result is one
which must be met within a reasonable period of time. Even serious
efforts of the United States, should they fall short of providing review
and reconsideration consistent with paragraphs 138 to 141 of the Avena
Judgment, would not be regarded as fulfilling this obligation of result.

   28. The United States has insisted that it fully accepts that para-
graph 153 (9) of the Avena Judgment constitutes an obligation of result.
It therefore continues to assert that there is no dispute over whether para-
graph 153 (9) expresses an obligation of result, and thus no dispute
within the meaning of the condition in Article 60 of the Statute. Mexico
contends, making reference to certain omissions of the federal govern-
ment to act and of certain actions and statements of organs of govern-
ment or other public authorities, that in reality the United States does
not accept that it is under an obligation of result ; and that therefore there
is indeed a dispute under Article 60.
   29. It is for the Court itself to decide whether a dispute within the
meaning of Article 60 of the Statute does indeed exist (see Interpretation

13

13              REQUEST FOR INTERPRETATION (JUDGMENT)

of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11,
1927, P.C.I.J., Series A, No. 13, p. 12).
   To this end, the Court has in particular examined the Written Obser-
vations and further written explanations of the Parties to ascertain their
views in the light of the comments of the Court in paragraph 55 of the
Order that they
     “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
     obligation falls upon those authorities”.

  30. The Court observes that whether, by reference to the elements
described above, there is a dispute under Article 60 of the Statute, the
resolution of which requires an interpretation of the provisions of para-
graph 153 (9) of the Avena Judgment, can be perceived in two ways.
  31. On the one hand, it could be said that a variety of factors suggest
that there is a difference of perception that would constitute a dispute
under Article 60 of the Statute.
  Mexico observes that, in Medellín v. Texas (Supreme Court Reporter,
Vol. 128, 2008, p. 1346), “the Federal Executive argued [in the United
States Supreme Court] that Article 94 (1) [of the United Nations Charter]
was directed only to the political branches of States Party . . . rather than
to the State Party as a whole”, and adds that “[t]here is no support for
that reading of Article 94 (1) in either its text, its object and purpose, or
principles of general international law”. Mexico maintains that it was on
the basis of this “erroneous interpretation” that

     “the [Supreme] Court found that the expression of the obligation to
     comply in Article 94 (1) . . . precluded the judicial branch — the
     authority best suited to implement the obligation imposed by
     Avena — from taking steps to comply”,

the Supreme Court being of the view that the Charter provision referred
to “a commitment on the part of U.N. Members to take future action
through their political branches to comply with an ICJ decision” (ibid.,
p. 1358). In Mexico’s contention, it thus follows that the highest judicial
authority in the United States has understood the Judgment in Avena
as not laying down an obligation of result binding on all constituent
organs of the United States, including the federal and state judicial
authorities. From this perspective, not only is the obligation in
paragraph 153 (9) not really regarded as an obligation of result, but,
argues Mexico, such an interpretation puts to one side the finding in
the Avena Judgment that :

14

14              REQUEST FOR INTERPRETATION (JUDGMENT)

     “in cases where the breach of the individual rights of Mexican
     nationals under Article 36, paragraph 1 (b), of the [Vienna Conven-
     tion on Consular Relations] has resulted, in the sequence of judicial
     proceedings that has followed, in the individuals concerned being
     subjected to prolonged detention or convicted and sentenced to
     severe penalties, the legal consequences of this breach have to be
     examined and taken into account in the course of review and recon-
     sideration. The Court considers that it is the judicial process that is
     suited to this task.” (Avena and Other Mexican Nationals (Mexico v.
     United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65-
     66, para. 140.)

   Further, Mexico contends that this understanding by the Supreme
Court 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.
   32. From this viewpoint, the wording in Mexico’s concluding submis-
sions — wording introduced in its further written explanations of 17
September 2008 — was directed to affirming that the obligation in para-
graph 153 (9) of the Avena Judgment is incumbent on all the constituent
organs to be seen as comprising the United States (see paragraph 10
above).
   Mexico moreover rejects the argument of the State of Texas that
Mr. Medellín had, prior to his execution, received the review and recon-
sideration required by paragraph 153 (9) of the Avena Judgment from
state and federal courts.
   33. According to Mexico, the United States, by word and deed, has
contradicted its avowed acceptance of review and reconsideration as an
obligation of result. Reference is made to the choice of the United States
Government not to appear at the Supreme Court hearings on Mr. Medel-
lín’s petition for a stay of execution. Mexico also points to the very tardy
attempts to engage Congress in ensuring that all constituent elements do
indeed act upon this obligation.

  34. Further, Mexico contends that the Supreme Court found that the
obligation within paragraph 153 (9) could not be directly enforced by the
judiciary on the basis of a Presidential memorandum nor otherwise with-
out intervention of the legislature. In Mexico’s view, this necessarily
means that the obligation is not really regarded as one of result — a view-
point not shared by the United States.

  35. The Court observes that these elements could suggest a dispute
between the Parties within the sense of Article 60 of the Statute.

  36. On the other hand, there are factors that suggest, on the contrary,

15

15              REQUEST FOR INTERPRETATION (JUDGMENT)

that there is no dispute between the Parties. The Court notes — without
necessarily agreeing with certain points made by the Supreme Court in its
reasoning regarding international law — that the Supreme Court has
stated that the Avena Judgment creates an obligation that is binding on
the United States. This is so notwithstanding that it has said that the
obligation has no direct effect in domestic law, and that it cannot be
given effect by a Presidential Memorandum.
   37. Referring to the Court’s statement in its Order of 16 July 2008 that
there seemed to be a dispute as to the scope of the obligation in
paragraph 153 (9), and upon whom precisely it fell, the United States
reiterated in its Written Observations of 29 August 2008 that the
federal government both “spoke for” and had responsibility for all organs
and constituent elements of governmental authority. While that
statement seems to be directed at matters different from what the
Court perceived as the possible dispute in paragraph 55 of its Order
of 16 July 2008, it could be said that Mexico addressed this question
only somewhat indirectly in its further written explanations of
17 September 2008.

   38. The Court notes that Article 98 (2) of the Rules of Court stipulates
that when a party makes a request for interpretation of a judgment, “the
precise point or points in dispute as to the meaning or scope of the judg-
ment shall be indicated”.
   Mexico has had the opportunity to indicate the precise points in dis-
pute as to the meaning or scope of the Avena Judgment, first in its Appli-
cation of 5 June 2008 and then in the submissions made at the conclusion
of its further written explanations of 17 September 2008.
   The Application made reference to a dispute about whether the obliga-
tion in paragraph 153 (9) of the Avena Judgment was one of result ; the
United States rapidly signalled its agreement that the obligation incum-
bent upon it was an obligation of result. The matters emphasized by
Mexico seemed particularly directed to the question of implementation
by the United States of the obligations incumbent upon it as a conse-
quence of the Avena Judgment. The various passages in the further writ-
ten explanations of Mexico of 17 September 2008, while referring to
certain actions and statements of the constituent organs of the United
States and perceived failures to act in certain regards by the federal
government, nonetheless remain very non-specific as to what the claimed
dispute precisely is. Further, it is difficult to discern, save by inference,
Mexico’s position regarding the existence of a dispute as to whether the
obligation of result falls upon all state and federal authorities and as to
whether they share an understanding that it does so fall.

  39. The Court observes that, in its Application of 5 June 2008, Mexico
simply asked that the Court affirm that the obligation incumbent upon

16

16             REQUEST FOR INTERPRETATION (JUDGMENT)

the United States paragraph 153 (9) constitutes an obligation of
result.
  When Mexico formulated its submissions in the oral hearings on the
request for the indication of provisional measures, it submitted :

     “(a) that the United States, acting through all its competent organs
          and all its constituent subdivisions, including all branches of
          government and any official, state or federal, exercising gov-
          ernment authority, take all measures necessary to ensure that
          José Ernesto Medellín, César Roberto Fierro Reyna, Rubén
          Ramírez Cárdenas, Humberto Leal García, and Roberto
          Moreno Ramos are not executed pending the conclusion of
          the proceedings instituted by Mexico on 5 June 2008, unless
          and until the five Mexican nationals have received review and
          reconsideration consistent with paragraphs 138 through 141 of
          this Court’s Avena Judgment ;”

  40. Mexico had a further opportunity to indicate the precise points it
regarded as in dispute when it reformulated its concluding submissions in
paragraphs 86 (a) (1) and (2) of its further written explanations of
17 September 2008 (see paragraph 32 above).

   41. The Court observes it could be argued that the claim in para-
graph 86 (a) (1) that the United States “acting through all its competent
organs . . . must take all measures necessary to provide the reparation of
review and reconsideration” does not say that there is an obligation of
result falling upon the various competent organs, constituent subdivi-
sions and public authorities, but only that the United States will act
through these in itself fulfilling the obligations incumbent on it under
paragraph 153 (9).

   The same wording of “the United States, acting through all its compe-
tent organs and all its constituent subdivisions” appears in para-
graph 86 (a) (2) of Mexico’s concluding submissions. Whether in terms
of meeting the requirements of Article 98 (2) of the Rules, or more gener-
ally, it could be argued that in the end Mexico has not established the
existence of any dispute between itself and the United States. Moreover,
the United States has made clear that it can agree with the first conclud-
ing submission (point (a)) of Mexico, requesting in its own concluding
submissions, as a subsidiary submission, that the Court adjudge and
declare “(b) an interpretation of the Avena Judgment in accordance with
paragraph 86 (a) of Mexico’s Response to the Written Observations of
the United States”.
   Mexico did not specify that the obligation of the United States under
the Avena Judgment was directly binding upon its organs, subdivisions or

17

17              REQUEST FOR INTERPRETATION (JUDGMENT)

officials, although this might be inferred from the arguments it presented,
in particular in its further written explanations.

                                    *   *
   42. The Court notes that, having regard to all these elements, two
views may be discerned as to whether or not there is a dispute within the
meaning of Article 60 of the Statute.

                                    *   *
   43. 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. The Parties’ different stated perspectives on the existence of a
dispute reveal also different contentions as to whether paragraph 153 (9)
of the Avena Judgment envisages that a direct effect is to be given to the
obligation contained therein.
   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 imple-
mentation, not excluding the introduction within a reasonable time of
appropriate legislation, if deemed necessary under domestic constitu-
tional 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 origi-
nal 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 judg-
ment was delivered, not the “meaning or scope” of the Avena Judgment,
as Article 60 of the Court’s Statute requires. By virtue of its general
nature, the question underlying Mexico’s Request for interpretation is
outside the jurisdiction specifically conferred upon the Court by Arti-
cle 60. Whether or not there is a dispute, it does not bear on the inter-
pretation of the Avena Judgment, in particular of paragraph 153 (9).

  46. For these reasons, the Court cannot accede to Mexico’s Request
for interpretation.

                                    *   *
18

18              REQUEST FOR INTERPRETATION (JUDGMENT)

  47. Before proceeding to the additional requests of Mexico, the Court
observes 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. 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.

                                   * * *
   48. In the context of the proceedings instituted by the Application
requesting interpretation, Mexico has presented three additional claims
to the Court. First, Mexico asks the Court to adjudge and declare that
the United States breached the Order indicating provisional measures of
16 July 2008 by executing Mr. Medellín on 5 August 2008 without having
provided him with the review and reconsideration required under the
Avena Judgment. Second, Mexico also regards that execution as having
constituted a breach of the Avena Judgment itself. Third, Mexico requests
the Court to order the United States to provide guarantees of non-
repetition.
   49. The United States argues that the Court lacks jurisdiction to enter-
tain the supplemental requests made by Mexico. As regards Mexico’s
claim concerning the alleged breach of the Order of 16 July 2008, the
United States is of the opinion, first, that the lack of a basis of jurisdic-
tion for the Court to adjudicate Mexico’s Request for interpretation
extends to this ancillary claim. Second, and in the alternative, the United
States suggests that such a claim, in any event, goes beyond the jurisdic-
tion of the Court under Article 60 of the Statute. Similarly, the United
States submits that there is no basis of jurisdiction for the Court to enter-
tain Mexico’s claim relating to an alleged violation of the Avena Judg-
ment. Finally, the United States disputes the Court’s jurisdiction to order
guarantees of non-repetition.

                                    *   *
  50. Concerning Mexico’s claim that the United States breached the
Court’s Order indicating provisional measures of 16 July 2008 by execut-
ing Mr. Medellín, the Court observes that in that Order it found that “it
appears that the Court may, under Article 60 of the Statute, deal with the
Request for interpretation” (Order, p. 326, para. 57). The Court then
indicated in its Order that :

       “The United States of America shall take all measures necessary
     to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto
     Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García,
     and Roberto Moreno Ramos are not executed pending judgment on

19

19              REQUEST FOR INTERPRETATION (JUDGMENT)

     the Request for interpretation submitted by the United Mexican
     States, unless and until these five Mexican nationals receive review
     and reconsideration consistent with paragraphs 138 to 141 of the
     Court’s Judgment delivered on 31 March 2004 in the case concern-
     ing Avena and Other Mexican Nationals (Mexico v. United States
     of America).” (Order, p. 331, para. 80 (II) (a).)

   51. There is no reason for the Court to seek any further basis of juris-
diction than Article 60 of the Statute to deal with this alleged breach of
its Order indicating provisional measures issued in the same proceed-
ings. The Court’s competence under Article 60 necessarily entails its
incidental jurisdiction to make findings about alleged breaches of the
Order indicating provisional measures. That is still so even when the
Court decides, upon examination of the Request for interpretation, as
it has done in the present case, not to exercise its jurisdiction to proceed
under Article 60.

   52. Mr. Medellín was executed in the State of Texas on 5 August 2008
after having unsuccessfully filed an application for a writ of habeas corpus
and applications for stay of execution and after having been refused a
stay of execution through the clemency process. Mr. Medellín was
executed without being afforded the review and reconsideration provided
for by paragraphs 138 to 141 of the Avena Judgment, contrary to what
was directed by the Court in its Order indicating provisional measures of
16 July 2008.
   53. The Court thus finds that the United States did not discharge its
obligation under the Court’s Order of 16 July 2008, in the case of Mr. José
Ernesto Medellín Rojas.

   54. The Court further notes that the Order of 16 July 2008 stipulated
that five named persons were to be protected from execution until they
received review and reconsideration or until the Court had rendered its
Judgment upon Mexico’s Request for interpretation. The Court recalls
that the obligation upon the United States not to execute Messrs. César
Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García,
and Roberto Moreno Ramos pending review and reconsideration being
afforded to them is fully intact by virtue of subparagraphs (4), (5), (6), (7)
and (9) of paragraph 153 of the Avena Judgment itself. The Court further
notes that the other persons named in the Avena Judgment are also to be
afforded review and reconsideration in the terms there specified.

  55. The Court finally recalls that, as the United States has itself
acknowledged, until all of the Mexican nationals referred to in subpara-
graphs (4), (5), (6) and (7) of paragraph 153 of the Avena Judgment have

20

20                REQUEST FOR INTERPRETATION (JUDGMENT)

had their convictions and sentences reviewed and reconsidered, by taking
account of Article 36 of the Vienna Convention on Consular Relations
and paragraphs 138 to 141 of the Avena Judgment, the United States has
not complied with the obligation incumbent upon it.

                                    *   *
  56. As regards the additional claim by Mexico asking the Court to
declare that the United States breached the Avena Judgment by executing
José Ernesto Medellín Rojas without having provided him review and
reconsideration consistent with the terms of that Judgment, the Court
notes that the only basis of jurisdiction relied upon for this claim in the
present proceedings is Article 60 of the Statute, and that that Article does
not allow it to consider possible violations of the Judgment which it is
called upon to interpret.
  57. In view of the above, the Court finds that the additional claim by
Mexico concerning alleged violations of the Avena Judgment must be dis-
missed.
                                   * *
  58. Lastly, Mexico requests the Court to order the United States to
provide guarantees of non-repetition (point (2) (c) of Mexico’s sub-
missions) so that none of the Mexican nationals mentioned in the
Avena Judgment is executed without having benefited from the review
and reconsideration provided for by the operative part of that Judg-
ment.
  59. The United States disputes the jurisdiction of the Court to order it
to furnish guarantees of non-repetition, principally inasmuch as the
Court lacks jurisdiction under Article 60 of the Statute to entertain Mexico’s
Request for interpretation or, in the alternative, since the Court cannot,
in any event, order the provision of such guarantees within the context
of interpretation proceedings.

  60. The Court finds it sufficient to reiterate that its Avena Judgment
remains binding and that the United States continues to be under an obli-
gation fully to implement it.

                                   * * *
     61. For these reasons,
     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

21

21               REQUEST FOR INTERPRETATION (JUDGMENT)

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 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna,
    Skotnikov ;
  AGAINST : Judge Sepúlveda-Amor ;

  (2) 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. José Ernesto Medellín Rojas ;
  (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 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Koroma, Buergenthal, Owada, Tomka, Keith, Sepúlveda-Amor,
    Bennouna, Skotnikov ;
  AGAINST : Judge Abraham ;

  (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 ;
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna,
    Skotnikov ;
  AGAINST : Judge Sepúlveda-Amor ;

  (5) By eleven votes to one,
  Rejects all further submissions of the United Mexican States.
  IN FAVOUR : President Higgins ; Vice-President Al-Khasawneh ; Judges Ran-
    jeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna,
    Skotnikov ;
  AGAINST : Judge Sepúlveda-Amor.

  Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this nineteenth day of January, two thousand and
nine, in three copies, one of which will be placed in the archives of the Court

22

22             REQUEST FOR INTERPRETATION (JUDGMENT)

and the others transmitted to the Government of the United Mexican States
and the Government of the United States of America, respectively.

                                         (Signed) Rosalyn HIGGINS,
                                                     President.
                                        (Signed) Philippe COUVREUR,
                                                      Registrar.

  Judges KOROMA and ABRAHAM append declarations to the Judgment of
the Court ; Judge SEPÚLVEDA-AMOR appends a dissenting opinion to the
Judgment of the Court.

                                                    (Initialled) R.H.
                                                    (Initialled) Ph.C.

23

23

               DECLARATION OF JUDGE KOROMA

  Article 60 of the Statute — Existence of a dispute concerning whether review
and reconsideration must be effective — Existence of a dispute as to whether
obligation imposed by Avena paragraph 153 (9) is subject to domestic imple-
mentation — Court’s Judgment should be interpreted to mean that the subject-
matter of these disputes is not addressed in Avena paragraph 153 (9) — Avena
Judgment remains binding under Article 94 of the Charter.

   1. While I have voted in favour of the operative part of the Judgment,
in my view the basis on which the Court has reached its conclusion needs
to be clarified. It is for this reason that I have decided to append this
declaration, in order to elucidate my understanding as to the application
of Article 60 of the Statute regarding this matter.
   2. Article 60 provides : “The 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.”
   3. According to its jurisprudence, the Court will apply Article 60 of
the Statute when two parties hold opposite views with regard to the scope
and meaning of a judgment. The Court has further elaborated on this by
stating that the existence of a dispute under Article 60 is

     “limited to whether the difference of views between the Parties which
     has manifested itself before the Court is ‘a difference of opinion
     between the Parties as to those points in the judgment in question
     which have been decided with binding force’, including ‘A difference
     of opinion as to whether a particular point has or has not been
     decided with binding force’ (Interpretation of Judgments Nos. 7
     and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J.,
     Series A, No. 13, pp. 11-12)” (Application for Revision and Inter-
     pretation of the Judgment of 24 February 1982 in the Case concern-
     ing the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tuni-
     sia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985,
     p. 218).
   4. On the basis of these criteria, there are at least two differences
between the Mexican and United States positions that could be consid-
ered a “dispute” under the terms of Article 60. First, Mexico appears to
take the position that the United States has only met its obligations
under Avena if its efforts to assure review and reconsideration are effec-
tive ; whereas the United States believes that those efforts are to be pri-

24

24            REQUEST FOR INTERPRETATION (DECL. KOROMA)

oritized among the “many other pressing priorities” of government. Second,
Mexico argues that the obligation of result imposed by Avena
paragraph 153 (9) automatically and directly “reach[es] all organs, includ-
ing the federal and state judiciaries” ; whereas the United States believes
that that obligation is subject to domestic implementation according to
domestic law. This is, indeed, very similar to the dispute identified by the
Permanent Court of International Justice in the Interpretation of Judg-
ments Nos. 7 and 8 (Factory at Chorzów) (Judgment No. 11, 1927,
P.C.I.J., Series A, No. 13, pp. 9-15 (finding that a dispute as to interpre-
tation did exist by virtue of the States’ differing views regarding the role
of Polish law in implementing Judgments Nos. 7 and 8 of the Permanent
Court)).

  5. The Court in this Judgment states in paragraph 43 that :
       “The Parties’ different stated perspectives on the existence of a
     dispute reveal also different contentions as to whether paragraph
     153 (9) of the Avena Judgment envisages that a direct effect is
     to be given to the obligation contained therein.”

   In my view, this paragraph is not entirely clear. It should have been
clearly stated that the Request for interpretation is not admissible because
the issues in dispute are not within the scope of paragraph 153 (9) of that
Judgment, which requires the United States “to provide, by means of its
own choosing, review and reconsideration of the convictions and sen-
tences of the Mexican nationals” mentioned therein. In this regard, the
Court should have concluded that paragraph 153 (9) does not address
whether review and reconsideration should lead to a specific result ; and
that paragraph 153 (9) also does not directly address whether the obliga-
tion of result it imposes directly reaches all organs, including federal and
state judiciaries, or whether it is subject to domestic implementation
according to domestic law. It is because neither of these points is clearly
within the scope of paragraph 153 (9) that I have voted in favour of the
operative paragraph.

   6. On the other hand, applying the criteria stated above and for con-
sistency of jurisprudence, the Court could have found the request for
interpretation admissible on the basis of either of the two disputes iden-
tified above. With respect to the first, concerning whether efforts to
assure review and reconsideration must be effective, the Court’s jurispru-
dence provides that the subject of dispute may also relate to the Court’s
reasoning to the extent that that reasoning is “inseparable from the
operative part” (Request for Interpretation of the Judgment of
11 June 1998 in the Case concerning the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary

25

25            REQUEST FOR INTERPRETATION (DECL. KOROMA)

Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I),
p. 35, para. 10). Taking this principle into account, the Court could very
well have found the request for interpretation admissible as to this dis-
pute (see Avena, p. 65, para. 138 (emphasizing that review and reconsid-
eration must be “effective”)).

   7. Likewise, with regard to the second dispute concerning the question
of domestic implementation, the Court could have found this issue to lie
within the scope of paragraph 153 (9), because the phrase “by means of
its own choosing” could be considered to address the issue of domestic
implementation. The Court therefore could have found Mexico’s Request
for interpretation admissible and proceeded to interpret that paragraph,
examining the relatively narrow question of whether paragraph 153 (9) of
Avena creates a direct obligation on state and local officials in the United
States to provide review and reconsideration, or whether it creates an
international obligation which is subject to domestic implementation in
the United States according to United States law.

   8. Furthermore, in interpreting the first dispute, the Court could have
agreed that the efforts to carry out review and reconsideration must be
effective in order to be in compliance with Avena. Indeed, even without
reaching the interpretation, the Court does recall in its Judgment that,
contrary to what has at times been implied by the United States,

     “the United States itself acknowledged, until all of the Mexican
     nationals referred to in subparagraphs (4), (5), (6) and (7) of para-
     graph 153 of the Avena Judgment have had their convictions and
     sentences reviewed and reconsidered, by taking account of Article 36
     of the Vienna Convention on Consular Relations and paragraphs 138
     to 141 of the Avena Judgment, the United States has not complied
     with the obligation incumbent upon it” (para. 55).

The Court has found that the obligation will only be met when the
United States, by means of its own choosing, has in fact carried out
review and reconsideration of the convictions at issue in Avena, and that
the United States has not yet met its obligations under the Judgment.

   9. With regard to the second dispute, the Court could have reached
the conclusion that the obligation of result imposed by paragraph 153 (9)
is subject to domestic implementation, as the Court had indicated that
the United States should carry out review and reconsideration “by means
of its own choosing”. This necessarily implies that the United States has
a choice of means as to how to implement its obligation under the Judg-
ment.
   10. In the light of the above considerations, in this case where the
question of whether a dispute exists regarding the scope and meaning of

26

26            REQUEST FOR INTERPRETATION (DECL. KOROMA)

paragraph 153 (9) of Avena, and based on the Court’s jurisprudence, the
Court could have found a dispute to exist between the Parties. However,
the Court has found that the Application itself is not predicated on a
matter which it had previously decided. Be that as it may, the Judgment,
by reiterating the obligation of the Respondent in respect of the indivi-
duals named in Avena, has upheld the object and purpose of Article 60 of
the Statute. First, as stated clearly at the conclusion of the Judgment, the
“Avena Judgment remains binding and . . . the United States continues to
be under an obligation fully to implement it” (para. 60). Second, as
stated at paragraph 55 of the Judgment and mentioned above, the United
States will not have complied with the obligation incumbent upon it
under Avena until all the Mexican nationals mentioned therein “have had
their convictions and sentences reviewed and reconsidered, by taking
account of Article 36 of the Vienna Convention on Consular Relations
and paragraphs 138 to 141 of the Avena Judgment”.

   11. Thus, while the Court may not be in a position to interpret its
Avena Judgment, the binding force of that Judgment remains, and cer-
tain obligations in that Judgment have not yet been met. Under Arti-
cle 94 of the Charter — and in this case also fundamental principles of
human rights — international law demands nothing less than the full and
timely compliance with the Avena Judgment for all the Mexican nation-
als mentioned therein.

                                          (Signed) Abdul G. KOROMA.

27

27

           DÉCLARATION DE M. LE JUGE ABRAHAM

   J’ai voté en faveur de tous les points du dispositif du présent arrêt, sauf
un.
   Il s’agit du point 3), à propos duquel j’ai dû, à mon grand regret, me
singulariser, en ne rejoignant pas l’ensemble de mes collègues.
   Je crois devoir expliquer pourquoi, en quelques lignes.
   Dans le point 3) du dispositif, la Cour
     « [r]éaffirme que les obligations énoncées au point 9) du paragra-
     phe 153 de l’arrêt Avena continuent de s’imposer aux Etats-Unis
     d’Amérique et prend acte des engagements pris par les Etats-Unis
     d’Amérique en la présente instance ».
   Naturellement, je ne conteste ni le bien-fondé de la première de ces
deux propositions ni l’intérêt de la seconde.
   Que les obligations découlant du point 9) du dispositif de l’arrêt Avena,
à savoir l’obligation d’assurer le réexamen et la revision des condamna-
tions prononcées à l’égard de chacun des cinquante et un ressortissants
mexicains visés par l’arrêt, continuent de s’imposer aux Etats-Unis, voilà
qui est évident et qui n’a d’ailleurs pas fait l’objet de la moindre contesta-
tion entre les Parties. Si l’on met à part le cas de José Ernesto Medellín
Rojas, dont l’exécution capitale rend à présent sans objet cette obligation
en ce qui le concerne, il est clair que pour les autres condamnés les Etats-
Unis restent tenus de se conformer à l’arrêt de la Cour, pour autant qu’ils
ne s’y seraient pas déjà conformés dans le cas de certains d’entre eux,
question que la Cour n’était pas appelée à trancher et n’a pas entendu
trancher. Par ailleurs, il est exact que les Etats-Unis, par la voix de leurs
représentants qualifiés devant la Cour, ont réaffirmé leur engagement à
tout mettre en œuvre pour que ceux des condamnés qui n’ont pas encore
reçu la « réparation appropriée » définie au point 9) du dispositif de
l’arrêt Avena en bénéficient dans les meilleurs délais, et il n’y a pas de
doute que la Cour ne peut qu’en prendre note avec intérêt.
   Ce n’est donc pas parce que je serais en désaccord avec le contenu des
propositions qui figurent au point 3) que j’ai voté contre. C’est parce que
ces énoncés outrepassent manifestement les limites de la compétence que
la Cour tient de l’article 60 du Statut, et qu’elle exerce, ou est supposée
exercer, en la présente espèce. Cette compétence a pour seul objet l’inter-
prétation de l’arrêt précédemment rendu, et ne saurait englober quelque
question que ce soit se rapportant à l’exécution dudit arrêt, soit pour le
passé, soit pour l’avenir.
   C’est d’ailleurs bien ce que dit la Cour lorsqu’elle rejette la demande du
Mexique tendant à ce qu’elle constate que les Etats-Unis ont violé l’arrêt

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28            DEMANDE EN INTERPRÉTATION (DÉCL. ABRAHAM)

Avena en exécutant Medellín. Au paragraphe 56, l’arrêt rappelle les
limites de la compétence que l’article 60 confère à la Cour et en déduit
que celle-ci ne saurait accueillir ce chef de conclusions. Pourtant, que les
Etats-Unis aient violé l’arrêt Avena par le comportement en cause peut se
déduire logiquement du point 2) du dispositif, qui constate que l’exécu-
tion de Medellín a violé l’ordonnance de la Cour du 16 juillet 2008 por-
tant mesures conservatoires. La Cour a accepté de faire droit à la demande
du Mexique tendant à ce qu’elle constate la violation de son ordonnance,
car, celle-ci ayant été rendue « dans le cadre de la même instance » (en
interprétation), le titre de compétence que met en œuvre la Cour en
l’espèce englobe, incidemment, la question du respect des mesures conser-
vatoires ordonnées par elle (par. 51). En revanche, la Cour refuse, à bon
droit, d’accueillir la demande tendant à ce qu’elle constate que le même
comportement (l’exécution de Medellín) constitue également une viola-
tion de l’arrêt Avena — alors même que logiquement les deux proposi-
tions ne peuvent être que simultanément vraies — parce que cette demande
ne saurait se rattacher, ni directement ni incidemment, à la compétence
qu’elle tient de l’article 60.
   Le même raisonnement aurait dû conduire la Cour à s’abstenir d’intro-
duire dans le dispositif de l’arrêt des constatations — aussi indiscutables
soient-elles — telles que celles qui figurent au point 3).
   Une chose est de faire figurer dans les motifs d’un arrêt des remarques,
constatations ou propositions juridiquement superfétatoires et pouvant
apparaître comme dépassant les strictes limites de la compétence qu’exerce
la Cour. Ce n’est jamais de très bonne méthode, mais il se peut que la
Cour trouve parfois des raisons d’ordre pédagogique de procéder ainsi.
Cela peut être acceptable, à condition que ce soit fait avec modération et
discernement (comme ici, par exemple, aux paragraphes 54 et 55).
   Autre chose, en tout cas, est de faire figurer dans le dispositif d’un arrêt
des constatations outrepassant les limites de la compétence que la Cour
met en œuvre. Car, alors que ceux des motifs qui présentent un caractère
surabondant sont dépourvus de l’autorité de la chose jugée, tout ce qui
figure dans le dispositif d’un arrêt est en principe res judicata. Il peut y
avoir des motifs surabondants, il ne devrait pas y avoir de mention sura-
bondante dans un dispositif. Par suite, tout ce qui figure au dispositif doit
se tenir strictement dans les limites de la compétence de la Cour.
   Tel n’est pas le cas du point 3). La Cour n’y répond aucunement à une
demande d’interprétation de l’arrêt Avena, aucune des Parties n’ayant
jamais évoqué la moindre contestation relative aux effets dans le temps
dudit arrêt, qui pût appeler une interprétation.
   En réalité, le point 3) apparaît plutôt comme une sorte de préambule
au point 4), par lequel la Cour rejette la demande mexicaine tendant à ce
que soient exigées des Etats-Unis des garanties de non-répétition (de la
violation de l’arrêt Avena). C’est à la lumière des constatations du
point 3) (« dans ces conditions ») que la Cour rejette cette demande au
point suivant.
   Mais, à mon avis, ce qui justifie le rejet du chef de conclusions que la

29

29           DEMANDE EN INTERPRÉTATION (DÉCL. ABRAHAM)

Cour écarte, à juste titre, au point 4) du dispositif, ce n’est pas que les
Etats-Unis aient pris l’engagement de se conformer pleinement, désor-
mais, à l’arrêt Avena, c’est que ce chef de conclusions est lui-même étran-
ger à la compétence découlant de l’article 60 du Statut, la seule invoquée
en l’espèce par le Mexique.
  Ayant voté contre le point 3), pour les raisons que je viens d’exposer, je
n’ai cependant pas cru devoir voter aussi contre le point 4), bien qu’il
comporte à mes yeux un renvoi fâcheux au point précédent ; l’essentiel
étant, pour moi, qu’il rejette la demande que la Cour ne pouvait accueillir.

   J’ajouterai, pour conclure, que les observations qui précèdent ne met-
tent nullement en cause mon adhésion à l’essentiel de l’arrêt que la Cour
vient de rendre et qui se trouve, selon moi, aux paragraphes 29 à 46 des
motifs, et au point 1) du dispositif.

                                             (Signé) Ronny ABRAHAM.

30

30

     DISSENTING OPINION OF JUDGE SEPU
                                    u LVEDA-AMOR

  Agreement with most of the reasoning and most of the decisions — Regret
that Court did not settle issues incontrovertibly characterized by a degree of
opacity — Implicit recognition by the Court that a dispute exists — Interpre-
tation of obligation of result as one which requires specific outcome and within
reasonable period of time — Failing success, need for alternative and effective
means, such as legislative action — Medellín was executed without the required
review and reconsideration — The Court finds that the United States has
breached its obligations — But there is no determination of the legal conse-
quences flowing from this breach — The Avena Judgment remains binding.

   Article 36 confers individual rights — Mexico and the United States hold dif-
ferent views — The procedural default rule has not been revised — Non-applica-
tion of procedural default rule is required to allow review and reconsideration to
become operative — Binding force of the Judgment — United States Supreme
Court’s ruling is at odds with the one provided by Mexico and by the United
States — The Court should have settled the issue raised by the conflicting inter-
pretations — Review and reconsideration received by only one Mexican national
out of 51 listed in the Avena Judgment — The obligation falls upon all state and
federal authorities — Importance of role played by the judicial system, espe-
cially the United States Supreme Court — Mexico has established the existence
of a dispute — State responsibility — It engages the action of the competent
organs and authorities acting in that State — LaGrand found that a United
States Governor is under the obligation to act in conformity with United States
undertakings — In the present case, all competent organs and all constituent
subdivisions must comply with mandated review and reconsideration, as Mexico
claims — Interpretation of the dispute by the Court would have rendered an
invaluable construction to the clarification of rules and its enforcement.

   1. I am in agreement with most of the reasoning of the Court in the
present Judgment, as well as with most of the decisions expressed in the
operative clause of the Judgment. It is with regret that I am unable to
join the Court in some of its conclusions. My regret stems not only from
my disagreement with some of these views, but also from my belief that
the Court has missed a splendid opportunity to settle issues calling for
interpretation and to construe the meaning or scope of the Avena Judg-
ment in certain respects incontrovertibly characterized by a degree of
opacity.
   2. Before I embark on the process of setting out and explaining my
points of disagreement with the Judgment, I believe it useful to revisit
some of the important considerations that the Court has found worthy
of stating ; to a large extent, these follow from an interpretation of the

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31      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

Avena Judgment. In the present Judgment, the Court has clearly estab-
lished what is meant by an obligation of result : it is “an obligation
which requires a specific outcome” (Judgment, paragraph 27). It is clear
that an obligation falls upon the United States to provide the Mexican
nationals named in the Avena Judgment who remain on death row with
review and reconsideration consistent with paragraphs 138 to 141 of the
Avena Judgment. But then the Court construes the scope of the obliga-
tion :
       “The Court observes that this obligation of result is one which
     must be met within a reasonable period of time. Even serious efforts
     of the United States, should they fall short of providing review and
     reconsideration consistent with paragraphs 138 to 141 of the Avena
     Judgment, would not be regarded as fulfilling this obligation of
     result.” (Para. 27 ; emphasis added.)
  3. If the obligation of result is one which “must be met within a rea-
sonable period of time”, then there has been a failure by the United
States to comply with it. According to Mexico, since March 2004, when
the Avena Judgment was issued,
     “at least 33 of the 51 Mexican nationals named in the Court’s Judg-
     ment have sought review and reconsideration in United States state
     and federal courts.

       To date, only one of these nationals — Osbaldo Torres Aguil-
     era — has received review and reconsideration consistent with this
     Court’s mandate. We should also mention, however, that the State
     of Arkansas agreed to reduce Mr. Rafael Camargo Ojeda’s death
     sentence to life imprisonment in exchange for his agreement to waive
     his right to review and reconsideration under the Avena Judgment.
     All other efforts to enforce the Avena Judgment have failed.”
     (CR 2008/14, p. 20, paras. 2 and 3 (Babcock).)

Almost five years have elapsed since the Avena Judgment was handed
down. Since, as the Court considers, time is of the essence and the actual
compliance performance has been poor, to say the least, the specific out-
come associated with the obligation of result cannot be regarded as
having been brought about by the United States.

  4. A careful reading of the Court’s Judgment in the present case sug-
gests an implicit recognition by the Court that Mexico and the United
States have in fact shown themselves as holding opposing views in regard
to the meaning and scope of the Avena Judgment. It was stated in the
Order indicating provisional measures, in paragraph 55, that
     “while it seems both Parties regard paragraph 153 (9) of the Avena
     Judgment as an international obligation of result, the Parties none-
     theless apparently hold different views as to the meaning and scope

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32      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

     of that obligation of result, namely, whether that understanding is
     shared by all United States federal and state authorities and whether
     that obligation falls upon those authorities” (Order, p. 326, para. 55).

   5. Although the Court reaches the conclusion that the matters claimed
by Mexico as requiring an interpretation are not matters decided by the
Court in its Avena Judgment and thus cannot give rise to the interpreta-
tion requested by Mexico (Judgment, operative clause, paragraph 59 (1)),
the Court accepts that “[o]n the one hand, it could be said that a variety
of factors suggest that there is a difference of perception that would con-
stitute a dispute under Article 60 of the Statute” (ibid., paragraph 31).
And then, after reviewing some of Mexico’s contentions, the Court
“observes that these elements could suggest a dispute between the Parties
within the sense of Article 60 of the Statute” (ibid., paragraph 35). Addi-
tionally, the Court indicates — in a paragraph to be examined later, for
it gives rise to divergent interpretations — 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, in particular in its further written explana-
     tions.” (Ibid., paragraph 41 ; emphasis added.)
   6. The fact is that the Judgment comes close to recognizing that there
is a “dispute”, “contestation”, or “desacuerdo”, as the term is translated
in the Spanish version of Article 60 of the Statute. Whether or not
Mexico complied with Article 98, paragraph 2, of the Rules of Court,
which states that “the precise point or points in dispute as to the meaning
or scope of the judgment shall be indicated”, is a question requiring
further consideration, which it will receive later in this dissenting opinion.

  7. In the present Judgment, the Court further construes the meaning
and scope of the Avena Judgment when it states that
     “considerations of domestic law which have so far hindered the imple-
     mentation of the obligation incumbent upon the United States, can-
     not 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.” (Ibid., paragraph 47 ; emphasis added.)

As the United States Supreme Court has ruled, the alternative and effec-
tive means rapidly to implement the obligation of result incumbent on
the United States is through legislative action : “The responsibility for
transforming an international obligation arising from a non-self-executing

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33        REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

treaty into domestic law falls to Congress” (Medellín v. Texas, 128 S. Ct.
1346, 1368 (2008), attached as Annex B, p. 60, of Mexico’s Request
for Interpretation of the Judgment of 31 March 2004 in the Case concern-
ing Avena and Other Mexican Nationals (Mexico v. United States of
America) (Mexico v. United States of America)).
   8. The means available to the United States is essentially legislative
action, preferably at the federal level, quickly to attain effective compli-
ance with the obligation. As the Permanent Court of International Jus-
tice found
       “a State which has contracted valid international obligations is
       bound to make in its legislation such modifications as may be nec-
       essary to ensure the fulfillment of the obligations undertaken”
       (Exchange of Greek and Turkish Populations, Advisory Opinion,
       1925, P.C.I.J., Series B, No. 10, p. 20).
The Court has repeatedly affirmed in its jurisprudence that a State can-
not invoke its domestic law to justify its failure to perform an interna-
tional legal obligation. In taking the action required of it under the Avena
Judgment, the United States “cannot adduce as against another State its
own Constitution with a view to evading obligations incumbent upon it
under international law or treaties in force” (Treatment of Polish Nation-
als and Other Persons of Polish Origin or Speech in the Danzig Territory,
Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24).

     9. The Court has clearly established that José Ernesto Medellín Rojas
       “was executed without being afforded the review and reconsidera-
       tion provided for by paragraphs 138 to 141 of the Avena Judgment,
       contrary to what was directed by the Court in its Order indicating
       provisional measures of 16 July 2008” (Judgment, paragraph 52).
In the operative clause of the Judgment, the Court has found unani-
mously that the United States “has breached the obligation incumbent
upon it” under the Court’s Order (ibid., paragraph 61 (2)). The Court
leaves no doubt in its decision that the obligation upon the United States
not to execute the other four Mexican nationals named in the Order of
16 July 2008 “pending review and reconsideration being afforded to them
is fully intact by virtue” of the Avena Judgment itself (ibid., para-
graph 54). In the operative clause of the Judgment, the Court reaffirms
“the continuing binding character of the obligations of the United States
of America under paragraph 153 (9) of the Avena Judgment” (ibid., para-
graph 61 (3)).
   10. The Court has found that the United States is in breach of its obli-
gations for having executed Mr. Medellín in violation of the Order of
16 July 2008. What is missing from the present Judgment is a determina-
tion of the legal consequences which flow from the serious failure by the
United States to comply with the Order and the Avena Judgment.

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34      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

  11. The Court, in its Order of 16 July 2008, placed clear emphasis on
certain commitments undertaken by the United States. The Court took
note of the following understandings and pledges voiced by the Agent of
the United States :
     “the United States has recognized that, were any of the Mexican
     nationals named in the request for the indication of provisional
     measures to be executed without the necessary review and reconsid-
     eration required under the Avena Judgment, that would constitute a
     violation of United States obligations under international law . . . in
     particular, the Agent of the United States declared before the Court
     that ‘[t]o carry out Mr. Medellín’s sentence without affording him
     the necessary review and reconsideration obviously would be incon-
     sistent with the Avena Judgment’ ;
     the United States has recognized that ‘it is responsible under inter-
     national law, for the actions of its political sub-divisions’, including
     ‘federal, state, and local officials’, and that its own international
     responsibility would be engaged if, as a result of acts or omissions by
     any of those political subdivisions, the United States was unable to
     respect its international obligations under the Avena Judgment . . . in
     particular, the Agent of the United States acknowledged before the
     Court that ‘the United States would be responsible, clearly, under
     the principle of State responsibility for the internationally wrongful
     actions of [state] officials’” (Order of 16 July 2008, pp. 330-331,
     paras. 76-77).

   12. On 5 August 2008, Mr. Medellín was executed in the State of
Texas without having been afforded the required review and reconsidera-
tion, and after having unsuccessfully filed an application for a writ of
habeas corpus and applications for stay of execution and having been
refused a stay of execution through the clemency process, as the Judg-
ment indicates in paragraph 52. Yet the Court has not found it necessary
even to mention in the present Judgment the commitments assumed by
the Agent of the United States through his recognition : that Mr. Medel-
lín’s execution would constitute a violation of an international obliga-
tion ; that it would be inconsistent with the Avena Judgment ; that the
United States was responsible under international law for the actions of
its political subdivisions ; and that the responsibility of the United States
would be engaged, under the principles of State responsibility, for the
internationally wrongful acts of federal, state and local officials.
   13. It is to be deeply regretted that the Court has decided not to pass
judgment on a failure by the United States to discharge an international
obligation. It is difficult to understand and accept this forbearance, espe-
cially when the United States Agent himself has recognized that a breach
of its international obligations entails the responsibility of the State he
represents. By refraining from attributing any legal significance to a vio-
lation of the Avena Judgment and of the Order of 16 July 2008, the Court

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35      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

has let pass an opportunity to further the development of the law of State
responsibility and has ignored the need to adjudge the consequences of
the internationally wrongful acts of a State and to determine the remedial
action required in such circumstances.

   14. In spite of this unexplained legal omission, the Court feels the need
to “reiterate that its Avena Judgment remains binding and that the
United States continues to be under an obligation fully to implement it”
(Judgment, paragraph 60). It is to be hoped that the United States Con-
gress will enact legislation so as to comply with the decision of the Court.
In the absence of federal legislation, the obligations stipulated in the
Avena Judgment will become a mere abstraction, devoid of any legal sub-
stance. In the words of the United States Supreme Court,
       “The Avena judgment creates an international law obligation on
     the part of the United States, but it is not automatically binding
     domestic law because none of the relevant treaty sources — the
     Optional Protocol, the U.N. Charter, or the ICJ Statute — creates
     binding federal law in the absence of implementing legislation and
     no such legislation has been enacted.” (Medellín v. Texas,
     128 S. Ct. 1346 (2008), Syllabus ; attached as Annex B to the Appli-
     cation, p. 44.)

                 I. DISPUTE/CONTESTATION/DESACUERDO

   15. In order properly to ascertain whether there is a “dispute”/“con-
testation”/“desacuerdo” for purposes of Article 60 of the Statute, it is
necessary to consider the wider perspective of the litigation between the
United States and Mexico. The legal proceedings have involved federal
and state authorities, particularly the Executive branches of government
at the federal and state levels, as well as federal and state courts.
   16. The Avena Judgment clearly applies broadly to all Mexican nation-
als facing severe penalties or prolonged incarceration. Thus the Judgment
includes not only the 51 Mexican nationals mentioned therein but also
Mexican nationals sentenced to “severe penalties” in the future. The
Court found, unanimously, that

     “should Mexican nationals nonetheless be sentenced to severe pen-
     alties, without their rights under Article 36, paragraph 1 (b), of the
     Convention having been respected, the United States of America
     shall provide, by means of its own choosing, review and reconsidera-
     tion of the conviction and sentence, so as to allow full weight to be
     given to the violation of the rights set forth in the Convention”
     (Avena and Other Mexican Nationals (Mexico v. United States of
     America), Judgment, I.C.J. Reports 2004 (I), p. 73, para. 153 (11)).

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36      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

  17. On the basis of this finding of the Court, which is part of the
operative clause of the Judgment, it is perfectly legitimate to examine the
opposing views propounded to the United States Supreme Court in the
Sanchez-Llamas v. Oregon case, involving a Mexican national sentenced
to more than 20 years of imprisonment ; though not named in the Avena
Judgment, he is entitled to the benefit of the judicial remedy mandated
therein. It is also instructive to read the views expressed by the United
States Supreme Court in the Sanchez-Llamas case, views which diverge
substantially from Mexico’s contentions and from what this Court decided
in the LaGrand and the Avena cases, as will be shown in the following
paragraphs.

               II. ARTICLE 36 CONFERS INDIVIDUAL RIGHTS

   18. In the Amicus Curiae Brief in support of Sanchez-Llamas as pet-
itioner for the writ of certiorari before the United States Supreme Court,
Mexico emphatically stated :

     “the Avena Judgment reaffirmed in the clearest possible terms that
     Article 36 of the Vienna Convention confers individual rights on all
     Mexican nationals who are detained or arrested in the United States”
     (Brief Amicus Curiae of the Government of the United Mexican
     States in support of Petitioner 3, 4, Sanchez-Llamas v. Oregon,
     126 S. Ct 2669 (2006) ; emphasis added).

To support its contention, Mexico resorts to paragraph 40 of the Avena
Judgment : the individual rights of Mexican nationals “are rights which
are to be asserted, at any rate in the first place, within the domestic legal
system of the United States” (Avena and Other Mexican Nationals
(Mexico v. United States of America), Judgment, I.C.J. Reports 2004
(I), p. 35, para. 40).
   19. To strengthen its argument in the Sanchez-Llamas case, Mexico
cited what the United States had pleaded before the Court in the Tehran
case. There, the United States argued that Article 36 “establishes rights . . .
for the nationals of the sending State who are assured access to consular
officers and through them to others” (I.C.J. Pleadings, United States
Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), 1979, p. 174 ; emphasis added).

   20. It is clear that the United States holds a different view in the
Sanchez-Llamas case on the question of individual rights conferred by
Article 36 of the Convention. In its Brief to the United States Supreme
Court, the United States asserted that the principle that the United States
Supreme Court “should give ‘respectful consideration’ to an interna-
tional court’s interpretation of a treaty does not lead to the conclusion

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37      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

that Article 36 affords an individual a right to challenge his conviction
and sentence” (Brief for the United States as Amicus Curiae Supporting
Respondents, Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006), p. 28 ;
emphasis added).

   21. But the Amicus Curiae Brief for the United States not only con-
tradicts the Mexican view ; it also strongly challenges the interpretations
handed down by the International Court of Justice in the LaGrand and
Avena cases. In the words of the Brief,

        “The United States has no obligation to accept the reasoning under-
     lying the ICJ’s Judgments . . . As we have demonstrated, the
     ICJ’s reasoning is inconsistent with principles of treaty construc-
     tion . . . Moreover, the weight to be given an ICJ Judgment is at its
     nadir where, as here, the Executive Branch, whose views on treaty
     interpretation are entitled to at least ‘great weight’, has considered
     the ICJ’s decisions and determined that its own long standing inter-
     pretation of the treaty is the correct one. Notably, the withdrawal of
     the United States from the Optional Protocol will ensure that the
     United States incurs no further international legal obligations to
     review and reconsider convictions and sentences in light of violations
     of Article 36 based on the ICJ’s interpretation of the Convention.
     Under these circumstances and in light of the considerations dis-
     cussed above, this Court should conclude that Article 36 does not
     give a criminal defendant a private right to challenge his conviction
     and sentence on the ground that Article 36 (consular access) was
     breached.” (Ibid., p. 30 ; emphasis added.)

  22. It is to be noted that the Agent of the United States in the present
case, who vehemently argued that “in the field of international relations,
the United States speaks with one voice through the executive branch”
(CR 2008/17, p. 11, para. 15 (Bellinger)), was also responsible, in his
capacity as Legal Adviser to the Department of State and together with
the United States Solicitor General, for the Brief for the United States to
the United States Supreme Court in the Sanchez-Llamas case.
  23. One of the questions answered by the United States Supreme
Court in the Sanchez-Llamas case was “whether Article 36 of the Vienna
Convention grants rights that may be invoked by individuals in a judicial
proceeding”. The Court noted :

       “Respondents and the United States as amicus curiae, strongly
     dispute this contention. They argue that ‘there is a presumption that
     a treaty will be enforced through political and diplomatic channels,
     rather than through the courts . . .’. Because we conclude that

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38      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

     Sanchez-Llamas and Bustillo are not in any event entitled to relief on
     their claims, we find it unnecessary to resolve the question whether
     the Vienna Convention grants individuals enforceable rights.”
     (126 S. Ct. 2669, 2677-2678 (2006) ; emphasis added.)

The United States Supreme Court nevertheless decided to affirm the
judgment of the Supreme Court of Oregon, to the effect that Article 36
“does not create rights to consular access or notification that are enforce-
able by detained individuals in a judicial proceeding” (ibid., p. 2676).

  24. When the Medellín case was argued before the Texas Court of
Criminal Appeals, Mexico contended :
        “The very purpose of Article 36 is to permit the nations that
     signed the Vienna Convention — including Mexico, the United
     States and 164 other countries — to protect the interests of their citi-
     zens when they are arrested or otherwise detained while living, work-
     ing, or traveling abroad. That interest is most acute when a citizen is
     facing trial in another country for a cause that may lead to his execu-
     tion.” (Brief Amicus Curiae of the United Mexican States in Support
     of José Ernesto Medellín, Ex Parte Medellín, 223 S.W. 3d 315
     (Tex. Crim. App. 2006) at (ix) ; emphasis added.)

  25. The United States took an opposing view :
        “Medellín contends that, standing alone, the Avena decision con-
     stitutes a binding rule of federal law that he may privately enforce in
     this Court. While the United States has an international obligation
     to comply with the decision of the International Court of Justice in
     this case under Article 94 of the United Nations Charter, the text
     and background of Article 94 make clear that an I.C.J. decision is
     not, of its own force, a source of privately enforceable rights in
     court.” (Ibid., 223 S.W. 3d 315 (Tex. Crim. App. 2006) ; emphasis
     added.)

  26. The Texas Court of Criminal Appeals wrote :
     “while we recognize the competing arguments before us concerning
     whether Article 36 confers privately enforceable rights, a resolution
     to that issue is not required for our determination of whether Avena
     is enforceable in this Court. Our decision is controlled by the Supreme
     Court’s recent opinion in Sanchez-Llamas v. Oregon, and accord-
     ingly, we hold that Avena is not binding federal law.” (Ibid., 223 S.W.
     3d 315, 330 (Tex. Crim. App. 2006) ; emphasis added.)

  27. In the Medellín case argued before the United States Supreme
Court, counsel for the United States asserted :

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39      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

       “Petitioner contends that the Avena decision is privately enforce-
     able because the Optional Protocol and the United Nations Charter
     obligate the United States to comply with the decision . . . Allowing
     private enforcement, without the President’s authorization, would
     undermine the President’s ability to make those determinations.”
Those determinations are related to a decision by the President to comply
with an International Court of Justice judgment and the measures that
should be taken (Brief for the United States as Amicus Curiae, Medellín
v. Texas, 128 S. Ct. 1346 (2008), p. 19). Without addressing the issue of
individual rights recognized under LaGrand and Avena, the United States
Supreme Court decided in 2008 that the Avena Judgment was not directly
enforceable as domestic law in state court.
   28. This Court, in its LaGrand and Avena Judgments, has ruled that
Article 36, paragraph 1, creates individual rights for those in detention.
That pronouncement runs counter to the legal arguments advanced by
United States federal authorities and sustained by state and federal
courts. In LaGrand, the Court stated that it

     “cannot accept the argument of the United States which proceeds, in
     part, on the assumption that paragraph 2 of Article 36 applies only
     to the rights of the sending State and not also to those of the
     detained individual. The Court has already determined that Arti-
     cle 36, paragraph 1, creates individual rights for the detained person
     in addition to the rights accorded the sending State, and that conse-
     quently the reference to ‘rights’ in paragraph 2 must be read as
     applying not only to the rights of the sending State, but also to the
     rights of the detained individual.” (LaGrand (Germany v. United
     States of America), Judgment, I.C.J. Reports 2001, p. 497, para. 89 ;
     emphasis added.)
In the present case, the Court could have better fulfilled its judicial func-
tion by dispelling all doubts raised by federal and state authorities in the
executive and judicial branches of government in the United States. That
should have been done by reaffirming the binding force of the LaGrand
and Avena Judgments and the existence of individual rights under Arti-
cle 36, even if that had meant acting on its own initiative, in order prop-
erly to construe the meaning or scope of the Avena Judgment.

                  III. THE PROCEDURAL DEFAULT RULE

  29. In the Avena case, Mexico contended that the United States, by
applying provisions of its municipal law, had failed to provide meaning-
ful and effective review and reconsideration of convictions and sentences.
Specifically, Mexico argued that
       “The United States uses several municipal legal doctrines to prevent

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40      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

     finding any legal effect from the violations of Article 36. First,
     despite this Court’s clear analysis in LaGrand, US courts, at both the
     state and federal level, continue to invoke default doctrines to bar
     any review of Article 36 violations — even when the national had
     been unaware of his rights to consular notification and communica-
     tion and thus his ability to raise their violation as an issue at trial,
     due to the competent authorities’ failure to comply with Article 36.”
     (Avena and Other Mexican Nationals (Mexico v. United States of
     America), Judgment, I.C.J. Reports 2004 (I), p. 55, para. 109.)

  30. The Court found in the Avena Judgment that “the procedural
default rule has not been revised, nor has any provision been made to
prevent its application” (ibid., p. 57, para. 113). Then the Court added :

        “The crucial point in this situation is that, by the operation of the
     procedural default rule as it is applied at present, the defendant is
     effectively barred from raising the issue of the violation of his rights
     under Article 36 of the Vienna Convention . . .” (ibid., p. 63,
     para. 134).
   31. After recalling that the LaGrand and Avena Judgments were enti-
tled only to “respectful consideration”, the United States Supreme Court
in the Sanchez-Llamas case went on to say :
     “the International Court of Justice concluded that where a defend-
     ant was not notified of his rights under Article 36, application of the
     procedural default rule failed to give ‘full effect’ to the purposes of
     Article 36 because it prevented courts from attaching ‘legal signifi-
     cance’ to the Article 36 violation. This reasoning overlooks the
     importance of procedural default rules in an adversary system, which
     relies chiefly on the parties to raise significant issues and present
     them to the courts in the appropriate manner at the appropriate time
     for adjudication . . . The consequence of failing to raise a claim for
     adjudication at the proper time is generally forfeiture of that claim.
     As a result, rules such as procedural default routinely deny ‘legal sig-
     nificance’ — in the Avena and LaGrand sense — to otherwise viable
     legal claims.” (Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2685-
     2686 (2006) ; emphasis added.)

  32. The Texas Court of Criminal Appeals, when reviewing Medellín’s
application for a writ of habeas corpus, provided a procedural history of
Medellín’s case :
        “Medellín filed an initial application for a writ of habeas corpus,
     claiming for the first time, among other things, that his rights under

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41      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

     Article 36 of the Vienna Convention had been violated because he
     had not been advised of his right to contact the Mexican consular
     official after he was arrested. The district court found that Medellín
     failed to object to the violation of his Vienna Convention rights at
     trial and, as a result, concluded that his claim was procedurally
     barred from review.

        Medellín appealed to the U.S. Court of Appeals for the Fifth Cir-
     cuit, which also denied his application. The Fifth Circuit noted the
     I.C.J. decision in Avena, but determined that it was bound by the
     Supreme Court’s decision in Breard v. Greene, which held that
     claims based on a violation of the Vienna Convention are subject to
     procedural default rules.

       [W]e are bound by the Supreme Court’s determination that I.C.J.
     decisions are not binding on United States courts. As a result,
     Medellín . . . cannot show that Avena requires us to set aside Section
     5 and review and reconsider his Vienna Convention claim.” (Ex Parte
     Medellín, 223 S.W. 3d 315, 321, 332 (2006) ; emphasis added.)

  33. When submitting the Brief for the United States as amicus curiae
before the United States Supreme Court in the Sanchez-Llamas case, in
his capacity as Legal Adviser to the Department of State, the Agent of
the United States in the present case pleaded that
       “The I.C.J. decisions in LaGrand and Avena are clearly not bind-
     ing on this Court in this case . . . [T]he United States undertaking
     under Article 94 of the United Nations Charter to comply with a
     decision of the I.C.J. in a dispute to which it is a party, is to comply
     with the I.C.J.’s ultimate resolution of the dispute, not to accept all
     the reasoning that leads to that resolution. In this case, the I.C.J.’s
     reasoning is not persuasive . . . By that reasoning, any procedural
     rule that prevented a court from deciding the substance of a Vienna
     Convention claim — such as a State’s statute of limitations for seek-
     ing collateral review — would have to be set aside as inconsistent
     with Article 36 (2).” (Brief for the United States as Amicus Curiae
     Supporting Respondents, Sanchez-Llamas v. Oregon, 126 S. Ct. 2669
     (2006) ; emphasis added.)

   34. In principle, only the operative clause of an International Court of
Justice judgment has binding force. However, under certain circum-
stances and in certain cases, the reasoning underlying the conclusions
reached in the operative clause is inseparable from them and, because of

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42      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

this link, part of the reasoning in the Avena Judgment must also be the
subject-matter of interpretation by the Court. I believe that construing
the meaning or scope of most of the subparagraphs of paragraph 153, the
operative clause of the Judgment, requires resort to the reasoning of the
Court, for it is there that an explanation is found as to how the proce-
dural default rule represents a judicial obstacle which renders inoperative
and dysfunctional the rights embedded in Article 36 of the Vienna Con-
vention. It is not sufficient to claim that the operative clause has binding
force if its provisions become legally ineffective in the face of enforce-
ment by United States federal and state courts of the procedural default
rule. Such a domestic doctrine precludes compliance with international
obligations, vitiates treaty rights of substance and renders a judgment
nugatory.
  35. The Court has already had occasion to consider the relationship
between the reasoning in a judgment and the operative clause when
entertaining requests for interpretation of a judgment. The Court recently
explained that
     “any request for interpretation must relate to the operative part of
     the judgment and cannot concern the reasons for the judgment
     except in so far as these are inseparable from the operative part”
     (Request for Interpretation of the Judgment of 11 June 1998 in the
     Case concerning the Land and Maritime Boundary between Cam-
     eroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections
     (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 35,
     para. 10 ; emphasis added).
  36. In the present case, the Court could have reached beyond the
operative clause in the Avena case and examined one of the essential
foundations for the proper functioning of that judgment : the non-
application of the procedural default rule so as to enable the required
review and reconsideration of convictions and sentences.

                 IV. BINDING FORCE OF THE JUDGMENT

   37. Mexico has claimed in its Application that the Avena Judgment is
final and binding as between Mexico and the United States, invoking
Article 59 of the Statute of the Court in support of its contention. Mexico
asserts that, in spite of the obligation under Article 94, paragraph 1, of
the United Nations Charter to comply with decisions of the Court,
     “requests by the Mexican nationals for the review and reconsidera-
     tion mandated in their cases by the Avena Judgment have repeatedly
     been denied. On 25 March 2008, the Supreme Court of the United
     States determined in the case of José Ernesto Medellín Rojas, one of
     the Mexican nationals subject to the Avena Judgment, that the Judg-
     ment itself did not directly require US courts to provide review and
     reconsideration under domestic law . . . The Supreme Court, while

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43        REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

       expressly recognizing the United States’s obligation to comply with
       the Judgment under international law, further held that the means
       chosen by the President of the United States to comply were un-
       available under the US Constitution and indicated alternate means
       involving legislation by the US Congress or voluntary compliance by
       the State of Texas.” (Application, p. 10, para. 4 ; emphasis added.).

     According to Mexico,
       “the obligation to provide review and reconsideration is not contin-
       gent on the success of any one means. Mexico understands that in
       the absence of full compliance with the obligation to provide review
       and reconsideration, the United States must be considered to be in
       breach.” (Ibid., p. 10, para. 5.)

   38. It is apparent that Mexico and the United States take opposing
views on the issue of the automatic application of the Avena Judgment in
the domestic realm of the United States. Quoting the United States Brief
as amicus curiae in the last Medellín case before the United States
Supreme Court, Mexico notes that the United States, while having
acknowledged an “international law obligation to comply with the I.C.J.’s
decision in Avena”, contended that the Judgment was not independently
enforceable in domestic courts absent intervention by the President. The
United States is quoted as follows :

          “[W]hile petitioner is entitled to review and reconsideration by vir-
       tue of the President’s determination, such review and reconsideration
       would not be available to petitioner in the absence of the President’s
       determination.” (See Submission of Mexico in Response to the Writ-
       ten Observations of the United States of America, 17 September 2008,
       p. 2, para. 6 ; emphasis in the original.)
     39. Mexico points out that
       “the Supreme Court expressly adopted the United States’ argument
       as to the lack of enforceability of the Judgment in domestic courts.
       Hence, the Court held that neither the Avena Judgment on its own,
       nor the Judgment in conjunction with the President’s determination
       to comply, constituted directly enforceable federal law that pre-
       cluded Texas from applying state procedural rules that barred all
       review and reconsideration of Mr. Medellín’s Vienna Convention
       claim.” (Ibid., p. 2, para. 7.)

  40. The United States Supreme Court in its ruling in the Medellín case
provided an interpretation which is at odds with those proffered by

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44      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

Mexico and by the United States. The Supreme Court’s understanding of
the legal significance of Article 94 of the United Nations Charter and of
Article 59 of the Court’s Statute is expressed in the following terms :
        “The Executive Branch contends that the phrase ‘undertakes to
     comply’ is not ‘an acknowledgement that an I.C.J. decision will have
     immediate legal effect in the courts of UN members’, but rather
     ‘a commitment on the part of UN Members to take future action
     through their political branches to comply with an I.C.J. decision’.
     We agree with this construction of Article 94. The Article is not a
     directive to domestic courts. It does not provide that the United
     States ‘shall’ or ‘must’ comply with an I.C.J. decision, nor indicate
     that the Senate that ratified the United Nations Charter intended to
     vest I.C.J. decisions with immediate legal effect in domestic courts.”
     (128 S. Ct. 1346, 1358 (2008) ; emphasis added.)

  41. The conclusion by the United States Supreme Court that the
Avena Judgment does not by itself constitute binding federal law confutes
the contention of the United States Executive Branch that,
     “while the Avena Judgment does not of its own force require domes-
     tic courts to set aside ordinary rules of procedural default, that judg-
     ment became the law of the land with precisely that effect pursuant
     to the President’s Memorandum and his power ‘to establish binding
     rules of decision that preempt contrary state law’” (ibid., p. 1367).

   42. After making clear that unilaterally converting a non-self-executing
treaty into a self-executing one is not among the means available to
the United States President to enforce an international obligation, the
Supreme Court stated :
        “When the President asserts the power to ‘enforce’ a non-self-
     executing treaty by unilaterally creating domestic law, he acts in con-
     flict with the implicit understanding of the ratifying Senate.” (Ibid.,
     p. 1369.)
   43. Three different interpretations are advanced as to the domestic
effects of an international obligation. Three different interpretations are
advanced as to domestic implementation of the United Nations Charter,
the Court’s Statute and the Avena Judgment. The Court could have made
an important contribution to the development of international law by
settling the issues raised by these conflicting interpretations.

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45      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

                    V. REVIEW AND RECONSIDERATION

   44. It is justifiable to conclude that a dispute arises in the present case
out of the fundamentally different views taken by Mexico and the United
States on the interpretation to be given to the obligation imposed by the
Avena Judgment. But there is not only a conflict of legal views and of
interests between the two countries. There is a disagreement on several
points of law and, also, on the facts.
   45. In its oral pleadings, Mexico recalled that the review and reconsid-
eration mandated by the Avena Judgment must take place as part of the
“judicial process”. Mexico pointed out that
     “since March 2004, at least 33 of the 51 Mexican nationals named in
     the Court’s Judgment have sought review and reconsideration in
     United States state and federal courts.

       To date, only one of these nationals — Osbaldo Torres Aguil-
     era — has received review and reconsideration consistent with the
     Court’s mandate. We should also mention, however, that the State
     of Arkansas agreed to reduce Mr. Rafael Camargo Ojeda’s death
     sentence to life imprisonment in exchange for his agreement to waive
     his right to review and reconsideration under the Avena Judgment.
     All other efforts to enforce the Avena Judgment have failed.”
     (CR 2008/14, p. 20, paras. 2 and 3 (Babcock) ; emphasis added.)

   46. In contrast, the United States claims that “several Mexican nation-
als named in Avena have already received review and reconsideration of
their convictions and sentences” (CR 2008/15, p. 56, para. 22 (Bellinger) ;
emphasis added). But only Osbaldo Torres is mentioned as a beneficiary
of the remedy.
   47. Fifty-one Mexican nationals fell within the scope of the review and
reconsideration mandated in the Avena Judgment. At present only 50 are
on the list, after the execution of José Medellín Rojas by the State of
Texas on 5 August 2008 without review and reconsideration of his con-
viction and sentence. The case of Torres Aguilera has already been men-
tioned. Seven other cases have been disposed of without recourse to
review and reconsideration. Rafael Camargo Ojeda, in Arkansas, under a
plea agreement facilitated by Avena, waived his right to review and
reconsideration in exchange for the reduction of his death sentence to life
imprisonment. Juan Caballero Hernández, Mario Flores Urbán and
Gabriel Solache Romero had their sentences commuted by the Governor
of Illinois in 2003, a measure which benefited all persons on death row in
that state at that time. Martin Raul Soto Fong and Osvaldo Regalado
Soriano in Arizona had their sentences commuted after the United States
Supreme Court declared unconstitutional the application of a death sen-
tence to those under age at the time they committed the crime. Daniel
Angel Plata Estrada in Texas had his death sentence commuted after the

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46      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

United States Supreme Court ruled unconstitutional the execution of a
mentally retarded person (source : http://www.internationaljusticeproject.
org/nationals-Stats.com and http://www.deathpenaltyinfo.org/foreign-
nationals-and-death-penalty-us). It is now almost five years since the
Avena Judgment was handed down and 42 Mexican nationals have yet to
receive the relief required by it.

            VI. THE OBLIGATION FALLS UPON ALL STATE AND
                       FEDERAL AUTHORITIES

  48. Mexico contends that the obligation of result falls upon all state
and federal authorities and, particularly, upon the United States Supreme
Court, taking into account the “judicial process” remedy mandated by
Avena. The conclusion reached by Mexico on this matter cannot be
regarded as anything else but proof of a clash of views — reflecting a
disagreement with the United States on a point of law — and therefore a
dispute. According to Mexico,
     “the [United States Supreme] Court found that the expression of the
     obligation to comply in Article 94 (1) somehow precluded the judi-
     cial branch — the authority best suited to implement the obligation
     imposed by Avena — from taking steps to comply. There is nothing
     in the text or object and purpose of Article 94 (1) that suggests such
     an incongruous result. It is moreover fundamentally inconsistent
     with the interpretation of the Avena Judgment as imposing an obli-
     gation of result incumbent on all constituent organs, including the
     judiciary. Needless to say, Mexico does not agree with the Supreme
     Court’s interpretation.” (Submission of Mexico in Response to the
     Written Observations of the United States of America, 17 Septem-
     ber 2008, p. 15, para. 53 ; emphasis added.)

  49. Clearly, this is an issue on which Mexico has indicated “the precise
point or points in dispute as to the meaning or scope of the judgment”.
Mexico’s contention is that the United States Supreme Court

     “does not share Mexico’s view of the Avena Judgment — that is,
     that the operative language establishes an obligation of result reach-
     ing all organs, including the federal and state judiciaries, that must
     be discharged irrespective of domestic law impediments” (ibid., p. 16,
     para. 56 ; emphasis added).

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  50. In the light of all these considerations, it is obvious that there is a
misreading and a misinterpretation in the present Judgment of Mexico’s
position. The Court’s mistaken assumptions are reflected in paragraph 24
of this Judgment :
       “Mexico referred in particular to the actions of the United States
     federal Executive, claiming that certain actions reflected the United
     States disagreement with Mexico over the meaning or scope of the
     Avena Judgment. According to Mexico, this difference of views
     manifested itself in the position taken by the United States Govern-
     ment in the Supreme Court . . . Mexico maintains that the United
     States Government’s narrow reading of the means for implementing
     the Judgment led to its failure to take all the steps necessary to bring
     about compliance by all authorities concerned with the obligation
     borne by the United States.” (Emphasis added.)
   51. It is not Mexico’s position that the failure to comply with the
Avena obligation is attributable only to the United States federal Execu-
tive. What Mexico has argued is that the definitive determination to deny
the judicial review and reconsideration mandated by Avena is attribut-
able to the United States Supreme Court for having decided that : “while
a treaty may constitute an international commitment, it is not domestic
law unless Congress has enacted statutes implementing it” ; “the Avena
Judgment . . . is not automatically domestic law” ; “Avena does not by
itself constitute binding federal law” ;

     “the President’s Memorandum does not independently require the
     States to provide review and reconsideration of the claims of the 51
     Mexican nationals named in Avena without regard to state proce-
     dural default rules”.

   52. Given these judicial determinations, there can be no doubt that the
United States Supreme Court does not share the understanding that the
mandate of the Avena Judgment is an obligation of result. The same is
true of other authorities, and especially federal and state courts, as is evi-
dent from decisions adopted by such jurisdictions, including the Supreme
Court of Oregon, the Texas Court of Criminal Appeals, the United
States Supreme Court, state trial courts, federal district courts and the
United States Court of Appeals for the Fifth Circuit.

   53. In paragraph 48 of the Order of 16 July 2008, indicating provi-
sional measures, the Court stated :
     “in Mexico’s view, the fact that ‘[n]either the Texas executive, nor
     the Texas legislature, nor the federal executive, nor the federal leg-
     islature has taken any legal steps at this point that would stop th[e]
     execution [of Mr. Medellín] from going forward . . . reflects a dispute
     over the meaning and scope of [the] Avena [Judgment]’ ”.

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48      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

Mexico reiterated this position in its further written explanations.
 54. The United States however submitted in its oral pleadings that

     “the United States agrees that it is responsible under international
     law for the actions of its political subdivisions. That is not the same,
     however, as saying that the views of a state court are attributed to
     the United States for purposes of determining whether there is a dis-
     pute between the United States and Mexico as to the meaning and
     scope of the Avena Judgment.” (CR 2008/17, p. 11, para. 13 (Bell-
     inger).)

The question of attribution of responsibility for the conduct of State
organs will be dealt with at a later stage in this opinion. But what is
important at present is to observe that there is undeniably a dispute
between Mexico and the United States on this point. Of course, the issue
relates not only to the views of a state court, as the United States would
have us believe, although those views may also have legal consequences
in the implementation of the Avena Judgment.

   55. The crux of the dispute turns on the decision of the highest federal
judicial authority of the United States. The interpretation by the United
States Supreme Court is conclusive as a matter of domestic law and bind-
ing on all state and federal courts and officials — including the federal
Executive. Mexico rightly points out that “the views of the Supreme
Court as to the scope and meaning of the United States’ treaty obliga-
tions are relevant for purposes of the objective determination of a dis-
pute” (Submission of Mexico in Response to the Written Observations of
the United States of America, 17 September 2008, p. 14, para. 51).

   56. In the present Judgment, the Court states, in paragraph 38, that “it
is difficult to discern, save by inference, Mexico’s position regarding the
existence of a dispute as to whether the obligation of result falls on all
state and federal authorities”. But it is not only by inference that the
Mexican position can be discerned. As shown in the preceding para-
graphs, there is a dispute : Mexico clearly argues that “each of the Fed-
eral Executive, Judiciary, and Legislature have failed to treat the Avena
Judgment as imposing an obligation of result” (ibid., p. 11, para. 40).

  57. The United States disputes this contention :

     “under established international law, whether Texas, or any other
     U.S. state, has a different interpretation of the Court’s judgment is
     irrelevant to the issue before the Court. Similarly irrelevant are any
     interpretations by officials of other entities of the federal govern-
     ment that are not deemed by international law to speak on behalf of

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49      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

     the United States.” (Written Observations of the United States of
     America, 29 August 2008, p. 20, para. 44.)

In this statement, it is worth noting that great care has been taken to
avoid any mention of state and federal courts and, in particular, the role
of the United States Supreme Court. The question is not who speaks for
the United States. The question is what is the legal consequence of a deci-
sion by the United States Supreme Court interpreting a United States
international obligation as not constituting binding federal law without
implementing legislation.

  58. In its final submissions to the Court on 17 September 2008, Mexico
asked the Court to adjudge and declare
     “(a) That the correct interpretation of the obligation incumbent
          upon the United States under paragraph 153 (9) of the Avena
          Judgment is that it is an obligation of result . . .
          and that, pursuant to the interpretation of the foregoing obliga-
          tion of result,
           (1) the United States, acting through all of its competent
               organs and all its constituent subdivisions, including all
               branches of government and any official, state or federal,
               exercising government authority, must take all measures
               necessary to provide the reparation of review and recon-
               sideration mandated by the Avena Judgment in para-
               graph 153 (9)” (Submission of Mexico in Response to the
               Written Observations of the United States of America,
               17 September 2008, p. 24, para. 86 ; emphasis added ;
               Judgment, paragraph 10).
   59. After a careful reading of this submission, I find it incomprehen-
sible that the Court could conclude 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, in particular in its further written explana-
     tions.” (Ibid., paragraph 41).
All the required specificity is there ; there is no need to resort to infer-
ences.
   60. In its concluding remarks and submissions, Mexico indicated that
it
     “welcomes any good faith attempt to ensure its nationals are pro-
     vided with effective review and reconsideration that is fully consist-
     ent with this Court’s mandate in the Avena Judgment. Nonetheless,
     it is clear that constituent organs of the United States do not share
     Mexico’s view that the Avena Judgment imposes an obligation of

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50      REQUEST FOR INTERPRETATION (DISS. OP. SEPÚLVEDA-AMOR)

     result. It is thus clearly established that there is a dispute between the
     United States and Mexico as to the meaning and scope of para-
     graph 153 (9) of said Judgment.” (CR 2008/16, p. 21, para. 2 (Lomó-
     naco) ; emphasis added.)

Contrary to what is stated in paragraph 41 of this Judgment, I do not
believe that it can be argued that “Mexico has not established the
existence of any dispute between itself and the United States”. It is not
sufficient to find that the United States claims there is no dispute. The
positions and actions taken by various United States federal and state
authorities, particularly the federal judiciary, prove otherwise.

                        VII. STATE RESPONSIBILITY
   61. In 1999 the Court decided that the international responsibility of a
State was engaged by the actions of the competent organs and authorities
of that State, whatever they may be. Thus in the LaGrand case, when the
Court ordered the provisional measures to be taken by the United States,
it concluded that
        “Whereas the international responsibility of a State is engaged by
     the action of the competent organs and authorities acting in that
     State, whatever they may be ; whereas the United States should take
     all measures at its disposal to ensure that Walter LaGrand is not
     executed pending the final decision in these proceedings ; whereas,
     according to the information available to the Court, implementation
     of the measures indicated in the present Order falls within the juris-
     diction of the Governor of Arizona ; whereas the Government of the
     United States is consequently under the obligation to transmit the
     present Order to the said Governor ; whereas the Governor of Arizona
     is under the obligation to act in conformity with the international under-
     takings of the United States” (LaGrand (Germany v. United
     States of America), Provisional Measures, Order of 3 March 1999,
     I.C.J. Reports 1999 (I), p. 16, para. 28 ; emphasis added).

   62. It is crystal clear in its final submissions (see paragraph 10 of the
Judgment) that Mexico has taken into account the language used by the
Court in the LaGrand Order, even employing the same terminology.
Mexico asserts that there is an obligation of result incumbent upon the
United States under the Avena Judgment. The international responsibil-
ity of the United States is “engaged by the actions of its competent organs
and authorities”. Thus,
     “the United States, acting through all of its competent organs and all
     its constituent subdivisions, including all branches of government
     and any official, state or federal, exercising government authority,

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     must take all measures necessary to provide the reparation of review
     and reconsideration mandated by the Avena Judgment in para-
     graph 153 (9)” (emphasis added).

  63. Article 4 of the International Law Commission’s Articles on State
Responsibility provides :
        “1. The conduct of any State organ shall be considered an act of
     that State under international law, whether the organ exercises legis-
     lative, executive, judicial or any other functions, whatever position
     it holds in the organization, and whatever its character as an organ
     of the central government or of the territorial unit of the State.”
     (Report of the International Law Commission, Fifty-third Session,
     General Assembly Official Records, Supplement No. 10 (A/56/10).)

   64. In its Commentary to Article 4, the International Law Commis-
sion holds that the “reference to a ‘State organ’ covers all the individual
and collective entities which make up the organization of the State and
act on its behalf”. It adds that “the State is responsible for the conduct of
its own organs, acting in that capacity”, something that has long been
recognized in international judicial decisions. The Commission also points
out that
     “the reference to a State organ in Article 4 is intended in the most
     general sense. It is not limited to the organs of the central govern-
     ment, to officials at a high level or to persons with responsibility for
     the external relations of the State. It extends to organs of govern-
     ment of whatever kind or classification, exercising whatever func-
     tions, and at whatever level in the hierarchy, including those at pro-
     vincial or even local level.” (International Law Commission, Draft
     Articles on Responsibility of States for Internationally Wrongful
     Acts, with commentaries Ch. II, Art. 4, Yearbook of the International
     Law Commission, 2001, Vol. II, Part Two ; emphasis added.)

   65. It is obvious that Mexico’s final submission, in keeping with the
LaGrand Order and with what is indicated in the Articles on State
Responsibility, asserts that there is an obligation of result falling upon
the United States and its competent organs and constituent subdivisions.
These must be understood to include inter alia the State of Texas, the
Supreme Court of the State of Oregon, the United States federal courts,
the United States Government, and the United States Supreme Court.
Clearly, the wrongful conduct must be attributed to the United States, as
a political entity under international law, a political entity that must nec-
essarily act through its competent organs, its constituent subdivisions and
all officials exercising government authority.

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  66. When these considerations are kept in mind, it is extremely diffi-
cult to understand the scope of paragraph 41 of this Judgment. The
Court contends that it could be argued that Mexico’s final submission
     “does not say that there is an obligation of result falling upon the
     various competent organs, constituent subdivisions and public
     authorities, but only that the United States will act through these in
     itself fulfilling the obligations incumbent on it under para-
     graph 153 (9)”.
Contrary to what the Court states, a reading of Mexico’s final submis-
sions shows that it asserts that there is an obligation of result, in Mexico’s
interpretation, and that pursuant to such obligation the United States,
acting through any and all organs of the State, must take all necessary
measures to provide the Avena remedy.

                             VIII. CONCLUSION

   67. I have done my utmost to demonstrate in this dissenting opinion
that there is a dispute between Mexico and the United States, a dispute
which is ongoing. In my view, a dispute exists as to the meaning or scope
of the Avena Judgment, in the sense of Article 60 of the Statute of the
Court, since it is clear that Mexico and the United States have funda-
mentally different views on the interpretation of the obligation imposed
by the Avena Judgment. But it is my understanding that it is not only a
dispute/contestation/desacuerdo under Article 60. There is also a dispute
in the sense of Article 38, paragraph 1, since there is a disagreement on
several points of law and on the facts. I am convinced that there is a con-
flict of legal views and of interests between Mexico and the United States
on the substance of the obligations incumbent upon the United States
under the Avena Judgment.
   68. Had it interpreted the scope and meaning of the Avena Judgment,
the Court could have made an invaluable contribution to the settlement
of a dispute which runs the risk of self-perpetuation. The Court had at its
disposal all the necessary elements to identify the precise point or points
in dispute as to the meaning or scope of the Avena Judgment. It decided
otherwise and the consequence is that the international legal order has
been deprived of an enlightened construction of its fundamental rules
and principles and, equally important, guidance in enforcing them.

                                  (Signed) Bernardo SEPÚLVEDA-AMOR.

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