On June 27, , the ICJ, rejecting all of the United States’ arguments, ruled in favor of Germany. The ICJ held that the Vienna. 1 LaGrand (Germany v United States of America) (hereafter ‘LaGrand Case’) may Not only did the ICJ state, for the first time in the history of its existence, the. The German’s (P) case involved LaGrand and his brother who were executed before the matter came to the I.C.J. the Court found that the U.S. (D) had breached.
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On 21 Decemberthe LaGrands were formally notified by the United States authorities of their right to consular access. A subsequent petition to the US Supreme Court for certiorari was denied. Nevertheless, the Governor of Arizona decided, “in the interest of justice and with the victims in mind”, to allow the execution of Walter LaGrand to go forward as scheduled. Although Germany deals extensively with the practice of American courts as it bears on the application of the Convention, all three submissions seek to require the Court to do no more than apply the relevant rules of international law to the issues in dispute between the Parties to this case.
This request goes even further, since it is directed entirely towards securing specific measures in cases involving the death penalty.
According to the United States, this [p ] failure of counsel is imputable to their clients because the law treats defendants and their lawyers as a single entity in terms of their legal positions. The United States has provided the Court with information, which it considers important, on its programme. The Court based this finding solely on the text of the provisions set out in Art.
Throughout these proceedings, oral as well as written, the United States has insisted that it “keenly appreciates the importance of the Vienna Convention’s consular notification obligation for foreign citizens in the United States as well as for United States citizens travelling and living abroad”; that “effective compliance with the consular notification requirements of Article 36 of the Vienna Convention requires constant effort and attention”; and that “the Department of State is working intensively to improve understanding of and compliance with consular notification and access requirements throughout the United States, so as to guard against future violations of these requirements”.
It was with a certain reluctance that I voted in favour of operative paragraph 3 and 4 of the Court’s Judgment. The respondent did not deny that the rights of Germany under Art.
The Court notes moreover that at the time when lagfand United States authorities took their decision the question of the binding character of orders indicating provisional measures had been extensively discussed in the literature, but had not been settled by its jurisprudence. Later that day, Walter LaGrand was executed.
According to the United States, Germany’s late filing compelled the Court to respond to its request for provisional measures by acting ex parte, without full information. Ccase counters this argument by asserting that “a dispute whether or not the violation of a provision of the Vienna Convention gives rise to a certain remedy is a dispute concerning ‘the application and interpretation’ of the aforesaid Convention, and thus falls within the scope of Art.
However, the Parties reached differing conclusions on the interpretation of the subparagraph. In this respect the LaGrand Case is notable for the absence of any discussion of human rights, in the language of human rights. It has been speculated that this issue was settled by the ICJ because of the specific context of the case and it has also been assumed that the ICJ wanted, at this point in time, to equate its practice to that of the International Tribunal for the Law of the Sea ITLOS who had not had the binding nature of its orders questioned see Frowein at In consequence, Germany added, “the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative”.
According to Germany, it cannot be accused of negligence in failing to obtain the pre-sentence reports earlier. Czse could also be interpreted to mean only judgments rendered by the Court as provided in paragraph 2 of Article Restitutio in integrum, the normal remedy in idj law, is obviously impossible in relation to breach of an obligation, imposed under an order of interim measures, to delay the execution of a foreign national.
Germany claims that the United States violated its obligation under Article 36, paragraph 1 b to “inform a national of the sending state without delay of his or her right to inform the ic post of his home State of his arrest or detention”. This request does not specify the means by which non-repetition is to be assured.
Judge Oda; 4 By fourteen votes to one, Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph 3 above had been established, the United States of America breached its obligation to the Federal Republic of Ger-[p ]many and to the LaGrand brothers under Article 36, paragraph 2, of the Convention; IN FAVOUR: It points out in this connection that the United States Government “immediately transmitted the Order to the Governor of Arizona”, that “the United States placed the Order in the hands of the one official who, at that stage, might have had legal authority to stop the execution” and that by a letter from the Legal Counsellor of the United States Embassy in The Hague dated 8 Marchit informed the International Court of Justice of all the measures which had been taken in implementation of the Order.
There were also some delegations, at least partly motivated by the then Cold War mentality, who would have liked the subparagraph to reflect the free will of the detained or arrested person to state whether or not he or she wished to be approached by consular officials of his or her country. Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-seventh day of June, two thousand and one, in three copies, one of which will be placed in the archives [p ] of the Court and the others transmitted to the Government of the Federal Republic of Germany and the Government of the United States of America, respectively.
The Court recognizes that Germany may be criticized for the manner in which these proceedings were filed and for their timing. In so doing the state exercising diplomatic protection is in reality asserting its own right to have its nationals treated consistently with international law.
In these circumstances I wonder whether it is proper for the Court, in approaching the issue, to place so much emphasis on the purported clarity of language of the provision, putting aside altogether the customary rules of interpretation.
La Grand Case (F.R.G. v. U.S.), I.C.J. (June 27)
The Court observes that in its fourth submission Germany seeks [p ] several assurances. The Court stated that, in itself, the procedural default rule did not violate Article It can happen that for one reason or another – e. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. The Hague timeGermany filed in the Registry of this Court the Application instituting the present proceedings against the United States see paragraph 1 aboveaccompanied by a request for the following provisional measures: Germany further contends that “the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers”.
It should resist the invitation to require an absolute assurance as to the application of US domestic law in all such future cases. The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.
Is it not obvious. Concerning Germany’s argument based on the “principle of effectiveness”, the United States contends that “in an arena where the concerns and sensitivities of States, and not abstract logic, have informed the drafting of the Court’s constitutive documents, it is perfectly understandable that the Court might have casse power to issue binding final judgments, but a more circumscribed authority with respect to provisional measures”.
It points out that Article 36 begins with the words “with a view to facilitating the exercise of consular functions relating to nationals of the sending State,” and that this wording gives no support to the notion that the rights and obligations enumerated in paragraph 1 of that Article are intended to ensure that nationals of the sending State have any particular rights or [p ] treatment in the context of icu criminal prosecution.
It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United Cij from exercising them, had they so chosen. The ICJ did not, therefore, examine the extent to which customary international human rights law affected the interpretation or operation of article In that sense, the binding character has only been confirmed by the judgment and does not have any retroactive effect, even though the Court has recalled the binding nature of its orders for orders issued before see also: Nationals of caase sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.
Cause and prejudice being difficult to establish in those cases, one could have imagined that US jurisdictions could accept the failure to raise the issue of the VCCR violation as proof of ineffective assistance of counsel, offering sufficient grounds for opening the habeas corpus procedure.
Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders.
In support of its position, Germany developed a number of arguments in which it referred to the “principle of effectiveness”, to the “procedural prerequisites” for the adoption of provisional measures, to the binding nature of provisional measures as a “necessary consequence of the bindingness of the final decision”, to “Article 94 1of the United Nations Charter”, to “Article 41 1of the Statute of the Court” and to the “practice of the Court”.
The United States concedes that the competent authorities failed to do so, even after becoming aware that the LaGrands were German nationals and not United States nationals, and admits that [p ] the United States has therefore violated its obligations under this provision of the Vienna Convention.