That Pesky ICJ Just Won’t Give Up

by Julian Ku

In a both metaphorical and literal last gasp effort, Mexico has won an "indication of provisional measures" from the International Court of Justice ordering that the United States (and Texas in particular) take all necessary measures to stop the pending executions of Mexican nationals.

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 …

The basic idea here is that: 1) the ICJ judgment requires the U.S. to provide "review and reconsideration" and the U.S. basically has admitted that it has not done so. 2) the ICJ therefore is demanding that the U.S. stop the executions until it has given review and reconsideration, or more precisely, until the ICJ can examine more closely whether or not review and reconsideration needs to be provided. 

I can see more U.S. litigation, perhaps in the U.S. Supreme Court’s rarely used original jurisdiction, demanding enforcement of the provisional measures indication, which might have a different legal status than a standard ICJ judgment.  (For a prior example of this approach, see Lagrand v. United States).  I

Here’s a not very difficult prediction to make: the U.S. Supreme Court will reject any efforts to enforce this ICJ order.  Texas will also ignore it and go ahead and execute the said Mexican nationals.  In this way, the U.S. will act in admitted violation of its international law obligations under Article 92 and the ICJ Statute, thus further exposing the ICJ’s orders as having no domestic legal significance and of relatively little moral significance either. Congress has other things on its mind, and there won’t even be a bill introduced to try to give effect to the ICJ order.  The presidential candidates won’t even be asked about their views on this order.   But I suppose Mexico’s lawyers have to try everything they can, and I can’t fault them for pulling out all the stops, no matter how hopeless. 

http://opiniojuris.org/2008/07/16/that-pesky-icj-just-wont-give-up/

6 Responses

  1. Julian,

    Just a clarification — the ICJ is not going to be examining whether or not review or reconsideration needs to be provided in any particular case. The merits of the case currently pending before the Court is the interpretation of its earlier judgment. Indeed, the provisional measures actually add nothing to the Avena judgment. As the United States has itself admitted, it will be in violation of its international obligations if it executes any Mexican national without providing him with the required reconsideration. (Indeed, I must say that I find the various dissenting opinions far more persuasive than the Court’s, as there is in fact no dispute on the interpretation of Avena between the US and Mexico).

    I do agree with you that US courts are not going to be enforcing the ICJ’s provisional measures. What I simply cannot fathom, Julian, is how you can say that the ICJ’s order is of relatively little MORAL significance. It is certainly of international LEGAL significance. I don’t see what morality has got to do with it. Even if it does, why would the fact that the Order will have no direct effect in domestic law affect the ‘moral’ significance of the Court’s decision?

  2. I am a bit baffled by Julian Ku’s comment.

    Under international law, the position is clear. The US has an obligation to respect decisions of an international tribunal in cases in which it has consented to that court’s jurisdiction (such as this case). Further, Texas is obligated as well because under intl law, subdivisions of federal states also are bound by the state’s international obligations.

    Under US law, the position should also be clear. The US has an obligation to respect the decisions, which is a federal legal obligation. Although a criminal law matter, it is not strictly within Texas’ jurisdiction because international obligations are a federal matter and Texas must respect federal law.

    Have I missed something.

    Of course, even on those rare occasions when Bush get something right, he gets it wrong. He ordered Texas courts to obey the ICJ decision (right position), but presumed that his status as the Decider cuts across federalism and the separation of powers (wrong position). Thank goodness he will soon be gone. AMEN!

  3. Did some of the ICJ judges recuse themselves, it seems like the full court did not vote? Does anybody know why?

  4. Julian,

    Just a quick note to mention that your prediction with regard to Congress has already been proven wrong. The Avena Case Implementation Act has been introduced:

    http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h6481ih.txt.pdf

    Let us hope your other predictions have the same fate, although I would not hold my breath for them …

  5. Mark,

    The missing link in your comment is that, according to the US Supreme Court in Medellin, ICJ judgments, though they indisputably bind the US internationally, do not automatically form a part of US federal law. Basically, this is a classical ‘dualist’ position, and there’s nothing outrageously wrong about asking Congress to pass implementing legislation before domestic courts can enforce the ICJ’s judgment. Indeed, on Monday, one Congressman introduced an act for the implementation of Avena (see at http://ilreports.blogspot.com/2008/07/avena-case-implementation-act-of-2008.html). We’ll see how that goes.

    NSD,

    Three judges did indeed recuse themselves – Simma, Parra-Aranguren and Shi. Judge Simma had previously recused himself from Avena as well, as he was counsel for Germany in LaGrand. I don’t know why the other two judges recused themselves, as they did sit on Avena, as far as I recall. It could be medical or other private reasons.

  6. That is about the shortest proposed Act of Congress I’ve seen. So what is the objection to this Act? ‘Don’t mess with Texas’? That’s an objection to the treaty itself, not the Act.
    The U.S. should either fulfill its obligation to implement the treaty, or it should withdraw from the treaty entirely.
    Even most of us pro-sovereigntists will agree that if we’re ever stuck in a foreign prison, we’d want the American embassy notified. Implementing this may be one small step toward restoring U.S. credibility on the international stage. We dare not adopt the old Soviet method of publicly promising rights we never mean to deliver.

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