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International Courts and Dispute Resolution

The Reprieve Drone Strike Communication I — Jurisdiction

by Kevin Jon Heller

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan - whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):…

When Acquittal Is Small Consolation…

by Kevin Jon Heller

Although the ICTY’s recent high-profile acquittals have been getting all the attention, it’s worth noting that the ICTR Appeals Chamber has just acquitted two high-ranking defendants, Augustin Ndindiliyimana, the former chief of staff of the Rwandan paramilitary police, and François-Xavier Nzuwonemeye, the former commander of a military reconnaissance battalion, on the ground that the Trial Chamber erred in concluding that they had effective control over gendarmes suspected of participating in the 1994 genocide. The acquittals are obviously notable in themselves, but what’s particularly striking — and more than a little disturbing — is that Gen. Ndindiliyimana was originally sentenced to time served because he had spent 11 years in pre-trial detention:

Mr. Ndindiliyimana, who was arrested in Belgium in 2000, was convicted in 2011 of genocide, extermination as a crime against humanity and murder, and he was sentenced to 11 years. He was freed after time served.

Eleven years in pre-trial detention at an international tribunal is simply unacceptable. And Ndindiliyimana’s acquittal on all charges after 11 years in pre-trial detention simply adds insult to injury. All in all, a bad day for the ICTR’s reputation.

Someone (Prof. Stefan Talmon) Finally Makes An Argument In Favor of China in the Philippines UNCLOS Arbitration

by Julian Ku

One of the most frustrating things about China’s response to the Philippines arbitration has been the brevity of its legal discussion and analysis.  In particular, I’ve long thought that China had a pretty good argument that the Annex VII UNCLOS arbitral tribunal does not have jurisdiction over the dispute since, in many ways, territorial disputes are at the heart of the Philippines’ case.

But neither the government nor Chinese scholars have offered much flesh to this argument.  The closest statement I’ve seen was Judge Xue Hanqin’s impromptu remarks at the Asian Society of International Law conference last fall and a very brief Global Times essay.. But all that has now changed due to a book chapter  released by Professor Stefan Talmon of the University of Bonn.  From his abstract:

The chapter examines whether the Tribunal has jurisdiction to hear the case, whether the claims brought by the Philippines are admissible and whether there are any other objections which the tribunal will have to decide as a preliminary matter. It aims to offer a (not the) Chinese perspective on some of the issues to be decided by the Tribunal. The chapter is to serve as a kind of amicus curiae brief advancing possible legal arguments on behalf of the absent respondent. It shows that there are insurmountable preliminary objections to the Tribunal deciding the case on the merits and that the Tribunal would be well advised to refer the dispute back to the parties in order for them to reach a negotiated settlement.

I’ve only taken a quick look at Prof. Talmon’s pretty comprehensive discussion, and it really does read like an “amicus brief” for China on the question of jurisdiction.  I will have to consider more carefully Prof. Talmon’s claim that the 9-Dash Line claim can fit into the “historic waters” exception to jurisdiction, but overall it seems like a very careful and persuasive treatment.

Vasiliev on the Relationship Between Perisic and Sainovic

by Kevin Jon Heller

Sergey Vasiliev, an excellent young ICL scholar, has posted at the Center for International Criminal Justice a superb — and very long — analysis of the relationship between Perisic and Sainovic entitled “Consistency of Jurisprudence, Finality of Acquittals, and Ne Bis in Idem.” I agree with almost everything Sergey says, although I don’t think we should consider the Perisic AC’s adoption of the specific-direction requirement to be “clear error” (a basic requirement of any argument that the Appeals Chamber should reconsider the judgment) simply because the Sainovic AC says that it was. As Bill Schabas notes in his recent post, the legal issue can hardly be considered settled by Sainovic, given that the judgment was not unanimous, was decided by different appeals judges and the two dissenters (on the specific-direction point) in Perisic, and included a judge who was inexplicably in the majority in both Perisic and Sainovic. I also find it odd that Sergey doesn’t like my claim that the OTP’s motion for reconsideration belongs in the dustbin, given that he unequivocally rejects — on ne bis in idem and human-rights grounds — the idea that the OTP should be given what it wants: namely, Perisic’s acquittal overturned and a conviction entered.

But those are minor points. The post is must-read for anyone interested in the specific-direction requirement or the sudden implosion of the ICTY’s Appeals Chamber.

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

AJIL Symposium: Response to comments on “A New International Human Rights Court for West Africa”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

Many thanks to Solomon Ebobrah, Kofi Kufuor, and Horace Adjolohoun for their challenging and insightful comments our AJIL article, A New International Human Rights Court for West Africa. We are pleased to have provoked a debate about the drivers of legal integration in Africa and to see this debate linked to a larger set of literatures.  We hope that this symposium will encourage others to investigate the forces that have shaped regional integration projects around the world and to use evidence from ECOWAS to inform regional integration theory in general.

Our article attempts to stay on firm empirical ground and to generate as complete and accurate an account of the ECOWAS Court’s transformation as one can have at this moment in time.  But here is the rub—what does it mean to say “at this moment of time?”

There were many questions that we could not answer in research conducted only a few years after the events in question. For example, we did not interview the member state officials who debated the expansion of the Court’s jurisdiction.  This was in part due to a lack of time and money, but also because doing so was unlikely to yield different or more complete information.  The decision to extend the Court’s jurisdiction is recent and still contested.  This makes it tricky to interview participants, whose answers may be colored by or speak to the sentiments of the day.

Someday, African scholars may write a version of the recent book The Classics of EU Law Revisited, which examines foundational ECJ rulings fifty years later. The passage of time allowed EU historians to access personal archives and analyze the views of key individuals, and thereby reconstruct what happened before, during, and after these rulings.  We look forward to the day that our account of the ECOWAS Court is similarly dissected.  For now, here are our tentative answers to some of the questions raised in this symposium.

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AJIL Symposium: Can the ECOWAS Court Revive Regionalism Through Human Rights?

by Horace Adjolohoun

[Dr. Horace S. Adjolohoun is a Senior Legal Expert at the African Commission on Human and Peoples’ Rights. He recently completed his LLD thesis on Giving Effect to the Human Rights Jurisprudence of the ECOWAS Court of Justice: Compliance and Influence at the University of Pretoria.]

I agree with Alter, Helfer and McAllister that progressive judicial lawmaking may be risky, particularly in an environment where domestic politics are not in favor of a supranational court that limits the sovereignty margin of state organs. In the context of the ECOWAS Court of Justice (ECCJ), an interesting question could therefore be whether, by a purposive adjudication, the Court could read community law through its human rights mandate. The Court has repeatedly given a negative answer, and many have warned of the related risks, particular bearing in mind the fall of the SADC Tribunal. An association of factors makes me suggest that the chance could be worth taking.

The ECCJ is the official judicial body in which ECOWAS has vested the mandate to oversee the interpretation and application of norms adopted under the aegis of the Community (‘original’ Community law). I suggest that the African Charter has acquired the status of Community law because of its ‘constructive’ incorporation in ECOWAS instruments, particularly the 1993 Revised Treaty and the 2001 Governance Protocol. On the basis of the 2005 Court Protocol, the ECCJ has confirmed that status through its successive human rights judgments, starting from the first one in 2005. Article 31(1) VCLTTreaty law commands that interpretation of conventions should follow the ordinary meaning and not expand beyond the initial intention of the parties. Particularly, in the framework of regional integration arrangements, the ‘agency’ doctrine suggests that the Agent (here the ECCJ) may not usurp legislative functions by either interpreting the silence of the law in a particular direction (which I argue the ECCJ did in the Ugokwe case) or – and thereby – generating new norms that were not expressly formulated by law-makers (here, state parties)  (see Stone Sweet, 10-15). Some of the authors of the lead article support that approach in a previous work.

I agree that the silence of the 2005 Protocol regarding the well established international customary law rule of exhaustion of domestic remedies is as plain as was the lack of direct access for private litigants in the Afolabi era. Despite this, the ECCJ’s judges espoused purposive – and, in my view, ‘progressive’ – judicial lawmaking regarding exhaustion. The ECOWAS human rights ‘regime’ borrows from the African Charter-based system, which poses seven admissibility requirements for complaints to be accepted by the African Court and Commission. In the practice of the Commission, the rule of exhaustion is by far the one that attracts more contention. The 2005 ECCJ Protocol provides for ‘non-anonymity’ and ‘non-pendency’ as the two admissibility conditions.

From the foregoing, it is surprising that, in the course of lawmaking, ECOWAS states provided expressly for two ‘minor’ conditions, and remained silent for a ‘major’ condition, which has always attracted dispute. (more…)

AJIL Symposium: Regional Courts, Regionalism, Critical Junctures and Economic Integration in Africa

by Kofi Kufuor

[Dr. Kofi Oteng Kufuor is a Professor at the University of East London, UK.]

In November 2013 the ECOWAS Community Court of Justice threw out a case brought before it by Nigerian traders seeking a judgment that Ghana’s investment legislation which discriminated against ECOWAS nationals was inconsistent with ECOWAS law. The decision by the Court was surprising not only on account of it being a setback to the ECOWAS goals of a single economic market but it was also a blow to the supranational regime that the members created with the adoption of the Revised ECOWAS Treaty. Moreover, this decision was even more astonishing as it went against ECOWAS law and related protocols on the free movement of persons, right of residence and establishment.

The decision was also surprising in the wake of the efforts by the Court, carefully outlined in the paper “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice” by Alter, Helfer and McAllister (AHM), to extend its power. The research by AHM states that in the early stages of the Court’s power grab, economic union was sacrificed for the protection of human rights. At the core of the paper by AHM is that a constellation of actors, driven by a variety of interests, came together at a critical juncture in ECOWAS politics – there was widespread concern about the respect for human rights and humanitarian law – and this meeting of persons and policy space created an opportunity for the Court to expand its reach into the realm of human rights.

However, if we accept the core arguments of public choice theory then the Court could have exploited the petition before it to seize more power for itself. Thus public choice theorists studying international organizations will be surprised to see that this supranational moment has slipped especially with regard to an organization that still has compliance and legitimacy problems.

AHM assert that the decision to allow private interests to bring human rights suits before the ECOWAS Court was done at the expense of the Court serving as an engine for realizing the economic integration objective. The inference from this is that while a critical juncture appeared and thus an opportunity seized in the name of human rights, a similar opportunity is yet to come into existence for economic interests. However, looking at the rejection of the traders’ suit from a non-economic “irrational” point of view, the ECOWAS Court has struck a blow for re-connecting markets to society by abating neoliberal economic openness that subordinate Ghana’s investment law to ECOWAS law. Was the Court able to do so because the kind of interests that birthed the Court’s rights moment did not exist at the regional level? Inferred from AHM’s work the answer seems to be yes.

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OTP Asks for Perisic Reconsideration — On the Basis of Nothing

by Kevin Jon Heller

Fresh from its victory in Sainovic, the ICTY Office of the Prosecutor (OTP) has now asked the Appeals Chamber to reconsider its final judgment in Perisic on the ground that it would be unjust to permit Perisic to remain acquitted. As the legal basis for such reconsideration 11 months after final judgment, the OTP cites…

Precisely nothing.

Which is not surprising, because nothing in the ICTY Statute actually permits such reconsideration. The only provision that deals with reconsideration of Appeals Chamber judgments is Art. 26, which is limited to the discovery of new facts:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Even more problematic for the OTP, the Appeals Chamber specifically rejected reconsideration of final appeals judgments in Zigic, noting that the victims and the accused “are both entitled to certainty and finality of legal judgments.”

Lacking any legal basis for its request, the OTP does what it always does — invite the Appeals Chamber to engage in what Darryl Robinson has called “victim-centered reasoning” and reconsider Perisic anyway. In the OTP’s words, because Perisic was wrongly decided (according to one iteration of the Appeals Chamber), “the interests of justice for the tens of thousands of victims, substantially outweighs Perisic’s interest in finality of proceedings. Justice must be restored to the victims. Reconsideration is the only way to this end.” Put more simply: forget that inconvenient principle of legality. The demands of justice trump the text of the ICTY Statute.

It’s also worth noting a profound irony at the heart of the OTP’s request. It acknowledges Zigic is against it — so it argues that the Appeals Chamber should disregard Zigic in favour of its earlier decision in Celebici, which held, in another classic example of ignoring the text of the ICTY Statute in favor of its supposed “object and purpose” of combating impunity, that the Appeals Chamber’s “inherent jurisdiction” (of course) empowers it to reconsider any decision, no matter when decided, that “has led to an injustice.” In other words, the OTP is asking the Appeals Chamber to ignore a new decision (Zigic) that rejected an old decision (Celebici) in order to apply a new decision (Sainovic) that rejected an old decision (Perisic). Remarkable.

I would like to predict that the Appeals Chamber will consign this motion to the dustbin where it belongs. But who knows? As Marko Milanovic has pointed out, precedent no longer has much meaning for the Appeals Chamber. The outcome of an appeal now largely turns on which judges are randomly assigned to the panel.

I will be speaking soon on Perisic and Sainovic at a conference on the legacy of the ICTY. With each motion like this one, that legacy becomes a bit more tarnished.

UPDATE: Dov Jacobs adds some important points at Spreading the Jam.

AJIL Symposium: Comment on “A new International Human Rights Court for West Africa”

by Solomon Ebobrah

[Dr. Solomon T. Ebobrah is a Senior Lecturer at Niger Delta University.]

To date, ‘A new International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ authored by Karen Alter, Larry Helfer and Jacqueline McAllister is arguably the most eloquent scholarly exposition on the human rights jurisdiction of the ECOWAS Court of Justice (ECCJ) by observers from outside the African continent. This brilliant piece of work is to my knowledge, also the only one yet in existence to have taken a multi-disciplinary approach to the study of the ECCJ. Based on their very thorough and painstaking empirical investigation, the authors have successfully (in my view) supplied answers to some of the nagging questions that political scientists and lawyers would have regarding the budding human rights mandate of the ECCJ. As they point out in their opening remarks, intrigued (as the rest of us are) by the sharp but successful redeployment of the ECCJ from its original objectives of providing support economic integration to a seemingly more popular but secondary role as an international human rights court, the authors apply this article for the purpose trying understand and explain the rationale and manner of this transformation.

The authors have made very compelling arguments in support of their theoretical claim that international institutions, including international courts adapt to changing norms and societal pressures such that rational functionalist goals do not exclusively determine how a given international institution ultimately turns after its creation. While I find myself in agreement with much of the article, it is in relation to this claim and the evidence supplied by the authors in proof thereof that I find my first challenge. (more…)

AJIL Symposium: Introduction to “A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice”

by Karen Alter, Larry Helfer and Jacqueline McAllister

[Karen J. Alter is Professor of Political Science and Law at Northwestern University, Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University, and Jacqueline McAllister is Assistant Professor of Political Science at Kenyon College (as of July 2014).]

The ECOWAS Community Court of Justice is an increasingly active and surprisingly bold adjudicator of human rights cases.  Since acquiring a human rights jurisdiction in 2005, the ECOWAS Court has issued more than 50 decisions relating to alleged rights violations by 15 West African states. The Court’s path-breaking cases include judgments against Niger for condoning modern forms of slavery, against Nigeria for impeding the right to free basic education for children, and against the Gambia for the torture of dissident journalists.

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice, recently published in AJIL, explains how a sub-regional tribunal first established to help build a common market was later redeployed as a human rights court.  We investigate why West African governments—which set up the Court in a way that has allowed persistent flouting of ECOWAS economic rules—later delegated to ECOWAS judges a remarkably expansive human rights jurisdiction over suits filed by individuals and NGOs. Our theoretical contribution explains how international institutions, including courts, evolve over time in response to political contestation and societal pressures.  We show how humanitarian interventions in West Africa in the 1990s created a demand to expand ECOWAS’s security and human rights mandates.  These events, in turn, triggered a cascade of smaller reforms in the Community that, in the mid-2000s, created an opening for an alliance of civil society groups and supranational actors to mobilize in favor of court reform.

The creation of a human rights court in West Africa may surprise many readers of this blog. Readers mostly familiar with global bodies like the ICJ, the WTO and the ICC, or regional bodies in Europe and the Americas, may be unaware that Africa also has active international courts that litigate important cases.  Given that ECOWAS’ primary mandate is to promote economic integration, we wanted to understand why its court exercises such far-reaching human rights jurisdiction.  Given that several ECOWAS member states have yet to accept the jurisdiction of the African Court of Human and Peoples’ Rights, the ECOWAS Court’s ability to entertain private litigant complaints—without first requiring the exhaustion of domestic remedies—is especially surprising.  We also expected that even if ECOWAS member states decided to create such a tribunal, they would have included robust political checks to control the judges and their rulings.

What we found—based on a review of ECOWAS Court decisions and more than two dozen interviews with judges, Community officers, government officials, attorneys, and NGOs—was quite different.  The member states not only gave Court a capacious human rights jurisdiction, they also rejected opportunities to narrow the Court’s authority.

Our AJIL article emphasizes several interesting dimensions of the ECOWAS Court’s repurposing and subsequent survival as an international human rights tribunal.

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The United States breaches the Vienna Convention on Consular Relations . . . Again

by Duncan Hollis

News out of Texas today that it executed Edgar Tamayo, a Mexican national, for killing a police officer, Guy Gaddis.  Tamayo was one of the nationals Mexico named in the Avena case.  Thus, he fell within the scope of the ICJ’s order that the United States provide ‘review and reconsideration’ of the conviction and sentence of named Mexican nationals in light of the U.S. failure to provide a right to consular access within a reasonable time of their arrest pursuant to the Vienna Convention on Consular Relations (VCCR).  Thus, whatever Texas’ interests in ensuring justice was served on someone who killed a police officer, the execution is a clear violation of U.S. obligations under the ICJ Statute (Art. 59), the UN Charter (Art. 94), and, of course, the VCCR itself (Art. 36), given US adherence at the time to the VCCR’s Optional Protocol.

This marks (I believe) the third Mexican national Texas has executed since the ICJ issued its decision in Avena, and since the U.S. Supreme Court declared in Medellin that the US treaty obligations in question are non-self executing, meaning that as a matter of U.S. constitutional law, the Executive is powerless to stop Texas absent further implementation of the VCCR (or other treaties) by federal legislation.  The prospects of Congressional action to implement Avena, however, seem pretty dim at this point.

So, what happens now? Will Mexico continue to treat each new execution with the same weight as it has previously?  There are still dozens of Mexican nationals to whom the Avena decision had purported to offer relief. I also wonder if the State Department will maintain the same level of lobbying against these executions or if its statements will become more a matter of lip service?  I’d note, for example, the extent of federal lobbying seems to be lessening over time — compare Kerry’s comments on Tamayo’s case with the 2008 efforts by the White House, State, and Justice Department to delay Mr. Medellin’s execution).  In other words, will the regularity with which these executions (and the arguments surrounding them) seem destined to occur diminish their visibility for either the States themselves or their nationals?  Is Mexico’s claim against the United States strengthened or weakened by the United States’ continued inability (or some might say unwillingness) to comply with its international obligations?  As a formal matter, one would have to insist that Mexico has more to complain about with each execution.  But, on a more practical level, I’d argue Mexico’s chances for relief are likely to diminish the more the international community comes to expect continued U.S. non-compliance with the Avena judgment.  That may not be the right result, but I’m thinking it’s the most likely one. What do readers think?  Am I missing something?