Opinio Juris

Today Mexico filed a Request for interpretation of the Judgment delivered on 31 March 2004 by the International Court of Justice (ICJ) in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Mexico invokes Article 60 of the Statute of the Court, which provides that: “In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” A request for interpretation opens a new case. Mexico notes that in previous cases, the Court ruled that its jurisdiction to provide an interpretation of one of its own judgments “[was] a special jurisdiction deriving directly from Article 60 of the Statute”. In its Request Mexico recalls that, in the above-mentioned Avena Judgment, the Court inter alia found “that the United States had breached Article 36 of the Vienna Convention on Consular Relations in the cases of 51 Mexican nationals by failing to inform them . . . of their rights to consular access and assistance”; and that the Court determined, in paragraph 153 (9) of the Judgment, the remedial obligations incumbent upon the United States. Mexico contends that “a fundamental dispute” has arisen “between the parties as to the scope and meaning” of paragraph 153 (9) and that the Court needs “to provide guidance to the parties”....

Accordingly, Mexico asks the Court “to adjudge and declare that the obligation incumbent upon the United States under paragraph 153 (9) of the Avena Judgment constitutes an obligation of result as it is clearly stated in the Judgment by the indication that the United States must provide ‘review and reconsideration of the convictions and sentences’ but leaving it the ‘means of its own choosing’; and that, pursuant to the foregoing obligation of result,(1) the United States must take any and all steps necessary to provide the reparation of review and reconsideration mandated by the Avena Judgment; and (2) the United States must take any and all steps necessary to ensure that no Mexican national entitled to review and reconsideration under the Avena Judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation.” Today Mexico also filed in the Registry an urgent Request for the indication of provisional measures in accordance with Article 41 of the Statute. This article provides that “the Court shall have the power to indicate, if it considers that circumstances so require, any provision or measures which ought to be taken to preserve the respective rights of either Party”. Mexico explains that “provisional measures are clearly justified in order both to protect Mexico’s paramount interest in the life of its nationals and to ensure the Court’s ability to order the relief Mexico seeks”.

I support the member for McMillan's call for the government to conduct an independent broad-ranging scientific investigation into the genetic modification of food and biotechnology to assess not only the health of the crops and the food, but also the potential for contamination, the commercial implications for Australian primary industry, and the benefits and risks associated with genetically modified orgasms, orgasms," Mr Wood said.

With this Supreme Court guidance in mind, we deny a COA in regard to the asserted violations of the Vienna Convention. No reasonable jurist could conclude, in light of the explicit pronouncements in Medellin and Sanchez-Llamas, that Gomez's constitutional rights were violated when the Texas court refused to suppress his confession. Sanchez-Llamas establishes the general proposition that violations of the Vienna Convention do not require the suppression of evidence, and Medellin reinforces Sanchez-Llamas by holding that the general proposition applies even in the face of a contrary ICJ decision and presidential order.

These precedents apply with full force to Gomez. As in Sanchez-Llamas, he argues that his confession should have been suppressed, notwithstanding appropriately-given Miranda warnings, because he confessed without first being informed of his rights under Article 36 of the Vienna Convention. The law is straightforward: “[S]uppression is not an appropriate remedy for a violation of Article 36 ....” Sanchez-Llamas, 126 S.Ct. at 2674.

Moreover, as in Medellin, Gomez argues that the ICJ's decision in Avena, especially when coupled with the President's Memorandum, requires that the evidence be suppressed. The Court, however, has closed that door as well: “[T]he Avena judgment is not automatically binding domestic law,” Medellin, 128 S.Ct. at 1357, and the President's Memorandum exceeded his constitutional powers, id. at 1367-72. Though we “in no way disparage[ ] the importance of the Vienna Convention,” Sanchez-Llamas, 126 S.Ct. at 2687, there is no reasonable debate as to the critical legal infirmities of Gomez's application.

[1] Even the most ‘absolutist’ or tyrannical sovereigns have understood themselves to be both responsible and answerable to someone or something –Hitler to future Aryan historians, the Stuarts to God…. Some contemporary thinkers like John Rawls argue that the crucial and sufficient check on political power, both internally and externally, is juridical law: the rule of constitutional or public law domestically, the rule of international law internationally, is sufficient to ensure the just exercise of sovereign power. One of the many things about such positions that I find troubling … is that international law and international institutions are frequently expected to play an overarching political and moral role as political and moral ‘overseers’, one that far exceeds claims made in the name of Christendom by the most … absolutist of Popes.

[2] Augustine has things to say, of course, about the governance of emperors and princes, etc.... His interest lies always, however, with the ‘rightness’ of their rule and not with the mechanics of it. He offers no theory of how to rule because no human model of politics can be normative. The normative model is the City of God. All earthly cities are deficient in their administration of justice…. If we must use the word in the context of Augustine’s theology, the only thing to say is that there is no ‘rightness’ (iustitia) in earthly sovereignty. Robber kings may have disciplines of peace that enable their kingdoms to function cooperatively. The role of the Church is to teach what is and is not praiseworthy against the model of the City of God….

[3] Internal sovereignty does not give states the freedom to act toward their own citizens in whatever way they choose, nor does external sovereignty mean that states abusive toward their own citizens are immune from interference by outside agents. Both forms of independence are challenged by the notions of “sovereignty as responsibility’ and by its corollary, the “responsibility to protect.” These responsibilities also challenge the notion that states have duties only toward the well being of their own citizens. Responsibility reaches across borders.

[4] Responsibility must be taken within a country for the overall discharge of the proper tasks of government in that country …. [But] responsibility [also] must be taken for the overall discharge of the proper tasks of governance in the world at large, including governing relations between the entities that are taking responsibility for discharging the proper tasks of government in each particular country.

[5] Perhaps one of the reasons it is difficult to think of international institutions having attributes of sovereignty is that they rarely impose duties on individuals. It is difficult to render unto Caesar that which is Caesar’s if the emperor never asks for anything…. Even the granting of rights is not commonly among the delegated duties assigned to international institutions…. The idea of international institutions “governing over us” by conferring rights does not resonate with the general public…. So if international institutions do not impose duties or guarantee rights, what do they do that is “sovereign”? The answer, if there is one, is that they perform sovereign functions. The best way to think of international institutions is that they are entities that “we the people” through our governments delegate tasks that cannot be achieved without international coordination.

[6] Few would now question the responsibility of governments to their citizens in terms of the basic rights and opportunities…. A government that fails in these purposes lacks legitimacy, and its sovereign authority is clearly at risk from a people whose obedience it can no longer claim as a matter of right. With respect to internal sovereignty, we appear to have gradually returned from the unquestioned sovereignty of Hobbes to the kind of de facto sovereignty that Thomas Aquinas conferred on tyrannical princes. Obedience is due as long as the ruler is oriented to the common good. Where that orientation is lacking, obedience rests on a calculation of relative costs and benefits.

[7] Theories of absolute sovereignty and theories of international law limiting it to the positive agreements or practices of states have supported the unrestricted use of force. The primary scholarly response to such theories has been to argue, in line with Augustine and Aquinas, that all human action must be subject to higher principle. One of the fundamental reasons behind the evolution of legal systems in communities was the desire to subject force, both military and individual, to law. Law exists wherever human beings strive to live together in peace and this is true of the international community as of any national or local community. Certain limited use of force for the enforcement of the law is consistent with a well-functioning legal system; force to promote the ambitions of leaders free of legal restraint is not. Thus, the history of ideas about enforcement in international law is blended with this teaching of restraint on the use of force and the superiority of law to leadership.