Friday, June 20, 2008

ICJ: Request for Interpretation of the Avena Judgment (Provisional Measures - Conclusion of Public Hearings)

Earlier today, the International Court of Justice concluded the public hearings, which began yesterday, on the request for the indication of provisional measures submitted by Mexico in the case concerning Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Press release here. The verbatim record of the proceedings can be found here.

At the conclusion of the oral proceedings, the parties presented the following conclusions:

For Mexico:

The Government of the United Mexican States, acting on its own behalf and in the exercise of its right to afford diplomatic protection to its nationals, requests that this honourable Court issue an order indicating:

(a) that the United States, acting through all its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, take all measures necessary to ensure that José Ernesto Medellín, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending the conclusion of the proceedings instituted by Mexico on 5 June 2008, unless and until the five Mexican nationals have received review and reconsideration consistent with paragraphs 138 to 141 of this Court’s Avena Judgment; and

(b) that the Government of the United States inform the Court of all measures taken in implementation of subparagraph (a).

For the United States:
That the Court reject the request of Mexico for the indication of provisional measures of protection and not indicate any such measures, and that the Court dismiss Mexico’s application for interpretation on grounds of manifest lack of jurisdiction.

The Court will deliver its decision within the next few weeks.

A note regarding the composition of the Court for this case: At the opening of the public hearings yesterday, President Rosalyn Higgins indicated that three of the Court's judges would not sit in this case: Judges Shi, Parra-Aranguren, and Simma. Regarding the latter two, President Higgins referred to Article 24, paragraph 1, of the Court's Statute, which states: "If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President." The basis of Judge Simma's recusal is apparent, as he was Germany's co-agent and counsel in the LaGrand Case. He similarly recused himself in the Avena case. The cause for Judge Parra-Aranguren's recusal is less apparent. He was on the Court when Avena was decided and participated in that case. I am aware of no statement (or other cause) since that might disqualify him. Judge Shi's recusal is even more mysterious. President Higgins did not refer to Article 24, paragraph 1, to explain Judge Shi's non-participation. Instead, she said only that he would not sit "for reasons explained to the Court." What reasons might prevent his sitting other than those provided for under the expansive rubric of Article 24, paragraph 1? It is unclear.