The International Court of Justice (ICJ) today gave its decision on the request for indication of provisional measures submitted by Mexico in the case concerning the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. USA).

By seven votes to five, the Court rejected the submission by the United States seeking the dismissal of the Application by Mexico. The Court indicated, also by seven votes to five, that “the United States shall take all measures necessary to ensure that [the five Mexican indictees] are not executed pending judgment on the request for interpretation submitted by Mexico”.

In 2003, Mexico instituted proceedings against the United States in relation to the treatment of a number of Mexican nationals who had been tried, convicted and sentenced to death in criminal proceedings in the United States. In 2004, the ICJ determined that 51 named Mexican nationals were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States. The United States Supreme Court subsequently found that the ICJ decision did not constitute directly enforceable federal law that preempts state law, meaning that individual states could refuse review and consideration of individual cases. Currently, one of the Mexican nationals has been scheduled for execution in Texas and four more are in imminent danger of having execution dates set.

Jurisdiction of the Court

The United States explained that it has “clearly accepted the obligation to provide review and reconsideration” and that it has “sought to achieve that result” in conformity with paragraph 153(9) of the Judgement of 31 March 2004. Accordingly, in the United States' view, there is no dispute with respect to the meaning and scope of paragraph 153(9) and  therefore the Court lacks jurisdiction to entertain Mexico’s Application.

The Court however noted that the Parties held different views, “namely, whether that understanding [of paragraph 153(9)] is shared by all United States federal and state authorities and whether that obligation falls upon all those authorities”. The Court noted that there “appears to be a difference of opinion” between the Parties and that recourse to the Court  is thus possible under Article 60 of the Statute.

Provisional measures

After noting that the rights which Mexico seeks to protect have a sufficient connection with the Request for interpretation, the Court concluded that “there undoubtedly is urgency” and that the circumstances require that it indicate provisional measures.

Press release