Past and current presidents of the American Society of International Law today urged leaders in Congress to take legislative action to comply with the ICJ decision in Avena and halt the executions of Jose Medellin and the other affected death row inmates until the review required by the ICJ has been carried out.  Full text of the letter is here. So, readers, is Peter Spiro right in predicting that Jose Medellin will live out his days in prison (but also wrong in predicting that it won’t be because of congressional action)?

One of the most interesting aspects of the ICJ’s recent order in Avena pertains to the Court’s finding of jurisdiction under Article 60 of the Statute.  Mexico filed the case as a request for interpretation about the meaning of the Avena judgment because the United States withdrew from the Optional Protocol.  Thus, the only way for the ICJ to have jurisdiction is to find a dispute between the parties as to interpretation.  There is just one little problem:  the United States indicated in its written briefs and oral presentations that it fully agrees with Mexico’s interpretation of the decision.

By a vote of seven to five, the ICJ ruled that there was a dispute as to interpretation and upheld its jurisdiction.  Here is the key language from the majority…

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.