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III. The International Court of Justice
3.10. Provisional Measures
3.10.5. Provisional Measures and Merits

¤ Case Concerning Avena and other Mexican Nationals
(Mexico v. United States of America)
Request for the Indication of Provisional Measures
Order of 5 February 2003

[pp. ] Whereas, according to Mexico, the position of the United States amounts to maintaining that “the Vienna Convention entitles Mexico only to review and reconsideration, and that review and reconsideration equals only the ability to request clemency”; whereas “the standardless, secretive and unreviewable process that is called clemency cannot and does not satisfy this Court’s mandate [in the LaGrand case]”;

46. Whereas there is thus a dispute between the Parties concerning the rights of Mexico and of its nationals regarding the remedies that must be provided in the event of a failure by the United States to comply with its obligations under Article 36, paragraph 1, of the Vienna Convention; whereas that dispute belongs to the merits and cannot be settled at this stage of the proceedings; whereas the Court must accordingly address the issue of whether it should indicate provisional measures to preserve any rights that may subsequently be adjudged on the merits to be those of the Applicant;

47. Whereas the United States argues, however, that it is incumbent upon the Court, pursuant to Article 41 of its Statute, to indicate provisional measures “not to preserve only rights claimed by the Applicant, but ‘to preserve the respective rights of either party’”; that, “[a]fter balancing the rights of both Parties, the scales tip decidedly against Mexico’s request in this case”; that the measures sought by Mexico to be implemented immediately amount to “a sweeping prohibition on capital punishment for Mexican nationals in the United States, regardless of United States law”, which “would drastically interfere with United States sovereign rights and implicate important federalism interests”; that this would, moreover, transform the Court into a “general criminal court of appeal”, which the Court has already indicated in the past is not its function; and that the measures requested by Mexico should accordingly be refused;

48. Whereas the Court, when considering a request for the indication of provisional measures, “must be concerned to preserve . . . the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35), without being obliged at this stage of the proceedings to rule on those rights; whereas the issues brought before the Court in this case “do not concern the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes”; whereas “the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal”; (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25); whereas the Court may indicate provisional measures without infringing these principles; and whereas the argument put forward on these specific points by the United States accordingly cannot be accepted;