16 Jul That Pesky ICJ Just Won’t Give Up
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.