Recent Developments in International Law

 The focus of developments in international judicial fora this month relate to State responsibility before the International Court of Justice as well as individual culpability before the International Criminal Court.

The focus of developments in international judicial fora this month relate to State responsibility before the International Court of Justice as well as individual culpability before the International Criminal Court.

The International Court of Justice, on 19-1-2009, issued its judgment in the Request for interpretation of the judgment of 31-3-2004 in the case concerning Avena and other Mexican nationals (Mexico v. United States of America). In brief, the judgment of 31-3-2004 was a result of Mexico's claim that the United States of America had violated its legal obligations under the Vienna Convention on Consular Relations of 1963 due to its trial, and sentencing to death of Mexican nationals in the US. The Vienna Convention on Consular Relations of 1963 places obligations on signatories to permit consular access to nationals of other States accused of crimes. Mexico argued that para 153(9) of the 31-3-2004 judgment placed an obligation on US courts to directly apply the decision of ICJ. In this respect, the 19-1-2009 judgment denied Mexico's application to interpret para 1539) in such a manner. The majority stated that the method of implementation was left to the State in question, in keeping with its domestic legal framework. However, this did not preclude direct application of international obligations, if this was in keeping with domestic law (paras 43-44, 19-1-2009 judgment). ICJ further opined, in para 47, that considerations of domestic law which have hindered the implementation of obligations, cannot relieve a State of these obligations.

The 19-1-2009 judgment upheld Mexico’s claim that the US violated the ICJ order of 16-7-2008. This order placed the onus on the US to “take all necessary measures” to prevent the execution of five Mexican nationals, pending the final ICJ judgment as well as in keeping with its 31-3-2004 judgment. However, one of those sentenced to death, Jose Ernesto Medellin Rojas, was executed on 5-8-2008. ICJ held that this was in contravention to its obligations under international law and the 31-3-2004 judgment.

The other judicial landmark is the commencement of the first trial before the International Criminal Court, that of Prosecutor v. Thomas Lubanga Dyilo on 26-1-2009 relating to war crimes in the Ituri region of the Democratic Republic of Congo. Dyilo has been charged with the war crimes of conscription of children into armed groups, enlistment of children into armed groups and using children to participate actively in the hostilities, all of which are crimes in accordance with Article 8(2)(e)(vii) of the statute of ICC. Trial proceedings were scheduled to commence in August 2008, but this was delayed due to the prosecution’s failure to share potentially exculpatory evidence with the defence. Subsequently, upon the sharing of this information, trial proceedings were re-scheduled. This decision has not been without criticism though. In the first hearings on 26-1-2009, the defendant pleaded “not guilty” to all charges brought by the prosecution. This case will be closely followed not only for the reason that it is the first to come to trial at ICC, but also for the subject-matter of the charges, which relate for the first time to conscription of children and their forcible participation in armed conflicts.