32 ÉCOLES MINORITAIRES ALLEMANDES EN HAUTE-SILÉSIE
ANNEXE 2

DOCUMENTS DÉPOSÉS PAR LES PARTIES LORS DES AUDIENCES.

Documents déposés par l'agent du Gouvernement polonais :
- Formulaires :

x

Transfert à l'école polonaise (procès-verbal).
Inscription à l’école minoritaire (déclaration).

Transfert à l’école minoritaire (déclaration).

Statistiques des écoles minoritaires en Haute-Silésie polonaise. (Causes
d'annulation des demandes d’accés pour l’année scolaire 1928-1929.)

dem (année scolaire 1929-1930).
‘Listes d’enfants fréquentant les écoles minoritaires, etc.

Avis public concernant le transfert des enfants d’une éccle allemande

de minorité à une école polonaise de la majorité, ou inversement (affiché
le II mai 1927).

Lettre du président de la Commission mixte au voïévode de Silésie (27 juin
1927).

‘Télégramme du voiévode de Haute-Silésie à l'agent du Gouvernement
polonais (21 avril 1931). .

Lettre du président de la Commission mixte au directeur de l'Office
de minorités de Silésie (21 avril 1931).

Dispositions légales au sujet de l'obligation scolaire (extrait).

Ordonnance du ministre des Cultes et de l’Instruction publique du
6 décembre 1923 (extrait).

Bekannimachung concernant les inscriptions scolaires (affichée le 14 mai 1928).
Idem (affichée le 15 mai 1929).
Idem ( » » 12 » 1930).

Documents déposés par Vagent du Gouvernement allemand :
Formulaires :
Demande de transfert à l’école minoritaire allemande.

Demande d'inscription à l’école minoritaire. allemande.

Inscription d’un enfant commençant à exécuter son obligation
scolaire.

Inscription de transfert de l’école polonäise à l’école minoritaire alle-
mande.

Inscription à l'école publique primaire minoritaire -(protocole).
Transfert à l’école publique minoritaire (protocole).

Appartenance à la minorité allemande et inscription à l'école
publique primaire de cette minorité (protocole).

DOCUMENTS TRANSMIS PAR LE SECRÉTAIRE GÉNÉRAL DE LA SOCIÉTÉ DES NATIONS
SUR LA DEMANDE DE LA COUR.

Avis du président de‘la Commission mixte pour la Haute-Silésie (20 décem-
bre 1925).

Idem (10 octobre 1926).

Idem (16 décembre 1926).

Idem (31 mars 1927 — complétant l'avis du 16 décembre 1926).

32


     DISSENTING OPINION OF JUDGE SEPU
                                    u LVEDA-AMOR

  Agreement with most of the reasoning and most of the decisions — Regret
 hat Court did not settle issues incontrovertibly characterized by a degree of
opacity — Implicit recognition by the Court that a dispute exists — Interpre-
 ation of obligation of result as one which requires specific outcome and within
 easonable period of time — Failing success, need for alternative and effective
means, such as legislative action — Medellín was executed without the required
 eview 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-
 erent views — The procedural default rule has not been revised — Non-applica-
 ion 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
 ederal 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
 ubdivisions must comply with mandated review and reconsideration, as Mexico
claims — Interpretation of the dispute by the Court would have rendered an
 nvaluable 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
 oin 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
 he Court has missed a splendid opportunity to settle issues calling for
 nterpretation 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

31

Avena Judgment. In the present Judgment, the Court has clearly estab-
 ished what is meant by an obligation of result : it is “an obligation
which requires a specific outcome” (Judgment, paragraph 27). It is clear
 hat 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-
 ion :
       “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
 he 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
 o 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

32

     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-
 ion requested by Mexico (Judgment, operative clause, paragraph 59 (1)),
 he 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-
 ionally, the Court indicates — in a paragraph to be examined later, for
 t 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
s a “dispute”, “contestation”, or “desacuerdo”, as the term is translated
n 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
 urther 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-
ive means rapidly to implement the obligation of result incumbent on
he United States is through legislative action : “The responsibility for
ransforming an international obligation arising from a non-self-executing

33

 reaty 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
 or Interpretation of the Judgment of 31 March 2004 in the Case concern-
 ng 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-
 ice 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-
 ional 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
 eaves 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
 s 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-
 ion of the legal consequences which flow from the serious failure by the
United States to comply with the Order and the Avena Judgment.

34

  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
 he 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-
 ion, 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
 he Agent of the United States through his recognition : that Mr. Medel-
 ín’s execution would constitute a violation of an international obliga-
 ion ; that it would be inconsistent with the Avena Judgment ; that the
United States was responsible under international law for the actions of
 ts political subdivisions ; and that the responsibility of the United States
would be engaged, under the principles of State responsibility, for the
 nternationally wrongful acts of federal, state and local officials.
   13. It is to be deeply regretted that the Court has decided not to pass
 udgment 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-
 ation of the Avena Judgment and of the Order of 16 July 2008, the Court

35

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
 he 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
 o “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-
 estation”/“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
 ncludes 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)).

36

  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
 o more than 20 years of imprisonment ; though not named in the Avena
Judgment, he is entitled to the benefit of the judicial remedy mandated
 herein. 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
 n 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-
tioner 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 . . .
 or 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-
 ional court’s interpretation of a treaty does not lead to the conclusion

37

 hat 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-
 radicts 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,
 he 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
 he United States Solicitor General, for the Brief for the United States to
 he 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

38

       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
 udgment 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 :

39

       “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
 ndividual 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-
 ion 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-
 ul and effective review and reconsideration of convictions and sentences.
Specifically, Mexico argued that
       “The United States uses several municipal legal doctrines to prevent

40

     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-
led only to “respectful consideration”, the United States Supreme Court
n 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

41

     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
 he 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

42

 his link, part of the reasoning in the Avena Judgment must also be the
subject-matter of interpretation by the Court. I believe that construing
 he 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
 orce 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
 oundations 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
 he 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

43

     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
 he 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

44

Mexico and by the United States. The Supreme Court’s understanding of
he 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
he 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
 reaty into a self-executing one is not among the means available to
 he 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,
 he 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.

45

                    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
 nterests 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
 heir 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-
 ioned. 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
 mprisonment. 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
 hat 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-
 ence to those under age at the time they committed the crime. Daniel
Angel Plata Estrada in Texas had his death sentence commuted after the

46

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).

47

  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-
 ive. What Mexico has argued is that the definitive determination to deny
 he 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
 aw unless Congress has enacted statutes implementing it” ; “the Avena
Judgment . . . is not automatically domestic law” ; “Avena does not by
 tself 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
 rue 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]’ ”.

48

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
 mportant 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
 n the implementation of the Avena Judgment.

   55. The crux of the dispute turns on the decision of the highest federal
udicial authority of the United States. The interpretation by the United
States Supreme Court is conclusive as a matter of domestic law and bind-
ng 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-
 ions are relevant for purposes of the objective determination of a dis-
pute” (Submission of Mexico in Response to the Written Observations of
 he United States of America, 17 September 2008, p. 14, para. 51).

   56. In the present Judgment, the Court states, in paragraph 38, that “it
 s 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

49

     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
 he United States. The question is what is the legal consequence of a deci-
sion by the United States Supreme Court interpreting a United States
 nternational obligation as not constituting binding federal law without
 mplementing 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
 t
     “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

50

     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,
t 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-
 ty 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,

51

     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
 ts 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
 he 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,
 he 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.

52

  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
 nterpretation, 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
 hat 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
 n 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,
 he 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
 n 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.

53