Avena is Back at the ICJ: What’s the Point?

by Julian Ku

What exactly does Mexico hope to accomplish in its proceeding for a “Request for an Interpretation” of the 2004 ICJ Avena Judgment? The ICJ held hearings today (transcript here) and the International Herald Tribune has a nice account here. I understand that there is an international legal argument to be made here, but it is hard to see how any new judgment from the ICJ will have any more of a domestic legal effect than its earlier ones. And since the U.S. government has already acknowledged the requirements of the original ICJ judgment in Avena, all that will happen here is more international posturing by the ICJ, more hand-wringing by the U.S. government, and more posturing by Texas.

Mexico needs to shut down its legal team (as good as they are), and starting using its diplomats. Congress is the obvious place to start, but given the urgency, Texas (and its commutation board) is the other place to go. The ICJ may provide yet another judgment (and its willingness to act quickly in scheduling its public hearing two weeks after Mexico’s application) which will be again ignored by Texas.


2 Responses

  1. Julian,

    Mexico has already tried using diplomats, and it is my understanding that it will continue to do so. The thing that it REALLY wants from the ICJ, in my view, are the provisional measures prohibiting the execution of its nationals – Medellin’s execution date in particular has already been set. The hearings now before the Court are not on the merits of Mexico’s request for interpretation, but precisely on the provisional measures.

  2. The real question is what was the point of the President’s Memorandum directing states to implement the Avena decision. If the Bush administration thereby intended to comply with the United States’ international obligations, the Medellin decision made very clear what needs to be done. According to the IHL, Secretary of State Rice and Attorney General Mukasey are claiming that all they can do is remonstrate with Texas Governor Rick Perry. Even if the Texas governor were inclined to heed the federal government’s “respectful request,” that solution would only benefit Medellin and not the other Mexican nationals with an interest in the Avena decision.

    As Julian correctly points out, Congress is the place to start. But it is the Bush Administration (not Mexico) that needs to work with Congress to introduce legislation that would require implementation of the Avena decision in state courts. While they are at it, Congress might as well require review and reconsideration of all convictions and sentences of foreign nationals who were denied their consular consultation rights. That’s what the administration would be doing if it were really interested in bringing the United States into compliance with its international obligations.

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