Non- Corrige
Uncorrected
International Court ~Ôurinternationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1998
Public sitting
held on Tuesday 7April1998, ut 3 p.m, ut the PeacePalace,
Vice-PresidentWeeramantry,Acting President, presiding
in the case concerningthe Applicationof the Vienna Conventionon ConsularRelations
(Paraguayv. UnitedStatesof America)
Requestfor the Indication of ProvisionalMeasures
ANNEE 1998
Audiencepublique
tenue le mardi 7 avril19à 15 heures, au Palais dela Paix,
sous la présidence M. Weeramantry,vice-présiden, isant fonction deprésident
en l'affairede l'Applicationde la conventionde Vienne sur les relations consulaires
(Paraguayc. Etats-Unis dmrique)
Demande en indicationde mesures conservatoires
COMPTE RENDUPresent: Vice-President WeeramantryA, ctingPresident
President Schwebel
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Registrar Valencia-OspinaPrésents: M. Weeramantry, vice-président,faisant fonctionde président enl'affaire
M. Schwebel, président
MM. Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Mme Higgins,
MM. Parra-Aranguren,
Kooijmans
Rezek,juges
M. Valencia-Ospina, greffierThe Governmentof the Republic of Paraguay isrepresentedby:
H. E. Mr. Manuel Maria Caceres, Ambassador of the Republic of Paraguay to theKingdom of
Belgium and the Kingdom of the Netherlands,Brussels,
as Agent;
Mr. Donald FrancisDonovan, Debevoise & Plimpton, New York,
Mr. Barton Legum, Debevoise & Plimpton, New York,
Mr. Don Malone, Debevoise & Plimpton, New York,
Mr. José Emilio Gorostiaga, Professorof Law at the University of Paraguay incion and
Legal Counsel to the Office of the President of Paraguay,
as Counsel and Advocates.
The Governmentof the UnitedStates of America isrepresentedby:
Mr. David R. Andrews, Legal Adviser, United States Department of State,
as Agent;
Mr. Michael J. Matheson,Deputy Legal Adviser, United States Department of State,
as Co-Agent;
Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs, United States
Department of State
Ms Catherine Brown, Assistant LegalAdviser for Consular Affairs, United StatesDepartment
of State
as Counsel and Advocates;
Mr. Sean D. Murphy, Legal Counsellor, United States Embassy, The Hague,
Mr. Robert J. Ericson, United States Departmentof Justice,
as Counsel. - 5 -
Le Gouvernementde la Républiquedu Paraguay est représentépar:
S. Exc. M. Manuel Maria Caceres, ambassadeurdu Paraguay au Royaume de Belgique et au
Royaume des Pays-Bas, à Bruxelles,
comme agent;
M. Donald Francis Donovan, membredu cabinet Debevoise et Plimpton, New York,
M. Barton Legum, membre du cabinetDebevoise et Plimpton, New York,
M. Don Malone, membre du cabinet Debevoiseet Plimpton, New York,
M. JoséEmilio Gorostiaga, professeur de droità l'universitédu Paraguayà Asuncion et
conseillerjuridique de la Présidencedu Paraguay,
comme conseils etavocats.
Le Gouvernement des Etats-Unis d'Amérique est représenpta ér:
M. David R. Andrews, conseiller juridique du départementd'Etatdes Etats-Unis,
comme agent;
M. Michael J. Matheson, conseiller juridique adjoint principaldu départementdtEtat des
Etats-Unis,
comme coagent;
M. John R. Crook, conseillerjuridique adjoint chargédes questions concernant les
Nations Unies au départementd'Etatdes Etats-Unis,
Mme Catherine Brown, conseiller juridique adjoint chargédes affaires consulaires au
départementd'Etatdes Etats-Unis,
comme conseils et avocats;
M. Sean D. Murphy, conseiller juridiqueà l'ambassadedes Etats-Unis, La Haye,
M. Robert J. Ericson, du départementde lajustice des Etats-Unis,
comme conseils. -6-
TheVICE-PRESIDENT: Pleasebeseated. TheCourtresumesitssessionstohear thesecond
round of oral submissions and 1 give the floor now to His ExcellencyMr. Caceres of Paraguay.
Mr. CACERES: Thank you Mr. President. 1 would like to ask the Court to cal1upon
Mr. Donovan to offer Paraguay'srebuttal. Thank you.
The VICE-PRESIDENT: Thankyou. Mr. Donovan,please.
Mr. DONOVAN: Mr. President,Mr. Vice-President, distinguishedMembers of the Court.
It would be usefil, 1 believe, to start this aftemoon'ssession by summarizing where the
Parties stand in light of this moming's submissions.
I
First, there is no dispute about the terms of the goveming texts, Articles 5 and 36 of the
Vienna Convention.
Second, there is no dispute on thebasis of the United States submissionsthis morning that
the duties owed under the Vienna Conventionto Paraguayand to its nationalwere not fulfilled by
the competent authorities of the UnitedStates,and hence,that there was a violation of theTreaty.
Third, there is no dispute about the generally applicableprincipleof restitution, that isthat
the author of an offending illegal act has the obligation to restore the prior situation.
Fourth, there is no dispute betweenthe Parties that the object of provisionalmeasures is to
preserve the Parties'rights so that the Courtwill be in a position, upon rendering final judgment,
to render an effective final judgment, ajudgment thatmeans something. 1
Fifih and perhaps most importantly, there is no dispute that unless this Court orders
provisional measures, Mr. Breard, Paraguay'snational, will be executedon Tuesday 14April. In
Paraguay's, view these points of agreement standing alone not only support an indication of
provisional measures in accord with the Court's cases and goveming Statute but compel one.
Nevertheless,wewould liketo briefly addressseveral oftheotherpoints madebythe United States
this morning.
First, withrespecttojurisdiction. TheUnited Statesappearsto contesttheCourt'sjurisdiction
on two converse grounds. On the one hand,the United Statesargues,it is plain, indeedthe United -7 -
Statesconcedes,that there was a violation here. While onthe otherhand, the United States argues,
it isjust as plain that the Vienna Convention affords no effective remedy for that violation. We
of course agree that there was a violation, we of course disagreethat there is no effective remedy
but in any event, neither of these arguments can defeat the Court'sjurisdiction in this case.
May 1explain? There are at least two reasons why the United States concessionthat there
was a violation here of Article 36 cannot deprive this Court ofjurisdiction over the dispute. The
first was well stated by the United States in its oral arguments before this Court in the Tehran
hostages case. There the United States thought it prudentto address the argument, or the possible
argument, that given that there was no possible legal justification for the actions by Iran of which
the United States complained in that case, there might not be a dispute between the Parties coming
within the Optional Protocol. And if the Court will permit me, 1would remind the Court that one
of the treaties on which the United States founded its claims in that case was the Vienna
Convention on Consular Relations and one of the bases of jurisdiction was indeed the Optional
Protocol on which Paraguay founded this case.
The United States described that argument, or any such argument, as specious. It said "the
sum and substance of every case brought to the Court under the compromissoryclause of a treaty
is the claim that the Respondent's conduct violates its obligations under that treaty". It would be
anomalous to hold that the Court hasjurisdiction where there is an arguable claim that a treaty has
been violated but lacksjurisdiction where there is a manifestly well-founded claim that the sarne
treatyhas been violated. Such a contention hasno support inthejurisprudence or traditions of this
Court or in the terms of the Optional Protocols. 1 continue to quote "indeed any such role would
provide an incentivefor Statesto flouttheir treatyobligations andto avoidofferinganyjustification
for their conduct in order to defeat the Court'sjurisdiction".1would respectively suggest that the
same reasoning applies here. A State party should not be permitted to divest the Court of
jurisdiction by in effect confessing error, by in effect stating yes indeed Ourobligations were not
complied with, we agree with the relevant obligation and therefore there is no dispute for al1the
reasons well stated by the United States in its earlier submissions. - 8 -
The secondreasonthat the concession ofa violationcannotdeprivethis Courtofjurisdiction
isthat, as this very case amplydemonstrates,disputes about the "interpretationand application"of
the Convention may well arise from disagreementsabout the consequencesthat shouldflow from
a given violation. It may well be in this case that the Parties wouldbe able to reach a stipulation
with respect to the relevance ofevents and indeed perhapsreach a stipulationas to the underlying
act or omission that brings the Parties to this Court and then move to a remedies phase or phase
thatwould addressthe consequencesthat flowfrom thoseevents. Butthat doesnot changethe fact
that there is a dispute here as to the interpretation and application ofthe treaty. Indeed 1would
suggest that the United States own arguments this morning suggest that there is very much a
disagreement on the subject of what consequences should flow from the omission that is not in W
issue.
The UnitedStatesappearsto have made two additionalpointswithrespecttojurisdiction that
1would also like to address.
First, inat leastone formulationthis morning,the United States suggestedthat there was no
jurisdiction becauseParaguayhad no legallycognizableclaim. We disagreewith that statementof
course, with respectto Paraguay's claimbut1 note for the momentthat it would in any event not
afford a basis fordenyingjurisdiction; it is an argument properly addressedto the merits of the
claim.
Second,the United States referred to Articles II and III of the Optional Proto1osimply v
want to note that this Court of course may claim again in the Tehranhostages case, both in the
provisional measuresOrder and in its final Judgrnent,that thoseArticles do not in any way affect
the compulsoryjurisdiction of this Court under Article 1.
1would like nowto addressseveralof the circumstancesthat the United Statessuggestedare
relevant to Paraguay's Application.
First,theUnitedStatessuggestedthatsomehowParaguayshouldbepenalizedforhaving filed
itsApplication this past Friday, in light of the impending execution on 14 April.
This Court,1 believe, will appreciatethe magnitudeof a decisionby a Governmentlikethat
ofParaguay to instituteproceedings inthe International Courtof Justice againstthe United States. -9-
Needlessto Say,that is nota decisionthat istaken lightly. As we explainedthis morning,even last
weekthere were discussionsbetweenthe Partiesasto waysto avoidthe filingthat was finallymade
late in the day on Friday.
As the United States itself advised the Court, those discussionsfoundered when it became
clearthat the United Stateswas not preparedto take stepsto haltthe impendingexecution pending
further discussionsbetween the Parties, or pending some alternative means of dispute resolution.
1add parentheticallythat that is another reason ofcourse why any recourse to Articles II and III
was not available at this point, but of course an indication of provisional measures, and the
continuanceof thisproceeding,will innoway make impossiblefurtherdiscussionson thosetopics.
But for present purposes,if the Court were to now penalize Paraguayfor its efforts to amicably
resolvethe disputeand to take al1stepsto avoidhavingto cometo this Court, it wouldcreatewhat,
we would respecthlly suggest, wouldbe an unwise different sentenceto parties who wish to take
everystepto avoida filinghere, andforthatreasonwe wouldrespecthlly suggestthat that element
should play no role in the Court's deliberations.
We would hrther suggest that it would be particularly inappropriate to allow any such
circumstance to affect the Court's deliberationsin this case.
As has been mentioned, Paraguay here went the extra mile to avoid coming to this Court.
It took what we believe is a perfectlyjustifiable, but nonetheless unusualstep, of filing a lawsuit
first inthe United Statescourts,assertingits ownrights underthe Vienna Convention,and seeking
relief inthe formof aninjunctionagainstfurtherenforcementof the convictionand sentence of its
national. It took the same position in that proceedingthat it takes here, that is, it did not contest
theauthoriîyof the Virginiaofficials to enforceits criminal law,and itdid not contestthe authoriîy
ofthe Virginia oflïcials to re-try Mr. Breard ifParaguayreceivedthe relief it requested, if Virginia
officials were so advised, which Paraguayfully expects they would be.
Because there has been some discussion ofthose proceedings, 1would like to address two
aspects of those proceedingsin order to clari& the record beforethe Court.
First, there was a suggestionthis morningthat Paraguay atsome point in those proceedings
suggestedthat this case shouldnot come beforethis Court, that the United States courts were the -10-
appropriate forum. 1 understand the United States is going to provide the Court with a June 3
diplomatic letter. Weare goingto provide the Court as well with a letterthatmay shed somelight
on that exchange, which was a letter sent by Paraguay's counsel tocounselfor the United States
in the domestic litigation,which is of coursethe Department of Justice,in responseto the position
taken by the United States in the domestic litigation.
If the Courtwill permit me a moment.
Inthe initialproceedinginthe district court,that isthe federaltrialcourt inthe United States,
the court held that Paraguay had standingto sue for breach of a treaty in the United Statescourts.
It dismissed the suit, however, on an alternative jurisdictional ground that has to do with the
constitutionalstructureof the UnitedStates,and the authorityof a federalcourtto imposeremedies 4
against State officiais. Paraguay appealed that decision.
In the court of appeals the United States filed a brief, amicus curiae, in which it urged the
court of appeals notto rely onthe ground relied uponby the district court,but insteadto affirmon
the alternative jurisdictional ground that a sovereign should not be permitted, that a suit by a
sovereign in a court in the United States raises a non-justiciable controversy.
In the courseofthat brief, the UnitedStatestookthe position thatinfactthe properformwas
diplomaticnegotiationsor this Court. At the sarnetime, the United States suggestedan argument
that perhapspresagedthe argument it makes here,that there would be nojurisdiction giventhatthe
Parties agreed on the obligations imposed by the Vienna Convention. In response tothat position
1
by the United States,Paraguay'scounsel wrotealetterwhichwe will happilyprovideto the Court,
which stated what 1have said this moming, that Paraguay had determinedthat it was appropriate
to seekrelief in thefirst instancefromthe municipalcourtsofthe UnitedStates,had Paraguaybeen
ableto obtain effectiverelief, thePartiesmay never havecomebeforethisCourt. Paraguaydidnot
obtain that relief, but Paraguay has never suggestedthat the courts of the United States somehow
by filing suit in the courts of the United States, it would somehowbe foreclosed from its rights
under the OptionalProtocol, andthe suggestionthat the United Statescourtsare in someway the
appropriateforum isa bit difficultto understand in light ofthe position thatthe United Statestook - 11 -
in the domestic litigation that a sovereign, such as Paraguay, should notbe permitted to sue for
breach of treaty in those courts.
There is a second aspectof the United States litigation that 1believe requires clarification
after this morning's submissions.
The United Statesreferredto somelitigationinthe United States,relativelyrecent litigation,
arising from claims under the Vienna Conventionin death penalty cases. No court in the United
Stateshas yet reachedthe meritsof any suchclaim. 1would like to brieflydescribethe two kinds
of claims that have arisen, and perhaps give the Court some appreciation of the dilemma of a
Government like Paraguaythat seeks to vindicate its rights.
In the first instancethere have beentwo cases by sovereigns. The first is that by Paraguay,
andthe second isa suit modelled on Paraguay's actionthat was filed by the United Mexican States
inan attempt to haltthe executionof oneof its nationals. In both casesthe district court dismissed
on the constitutional immunityground that 1 havejust described, and in both cases the court of
appeals affirmed on that ground. In other words,in neither case did the court reach the merits of
the Vienna Convention claim. Indeed in the Paraguay lawsuit, in the lawsuit brought by the
Governmenthere, theCourtemphasizedthe importance ofthe ViennaConvention,but simplyheld
that it was disabled by the XIth Amendmentto the United States Constitution fiom ordering the
relief sought against State officials.
In the second categoryof cases are federalhabeasclaims by prisoners themselves seeking
to attack their convictions on the basis of the Vienna Convention and a failure to provide the
requirednotification. In al1ofthose cases of which1am aware, and there are now probablythree
or four, the claim has not been raised until the prisoner has reached a federal court, on aabeas
petition, that is, the claim was not raised in the proceedings in the state court, as in Mr. Breard's
case, andwas notraised inthestate habeasproceedings. Inthat situation,the holdingsareuniform,
thus far, that the stringentlimitationsthat boththe United States SupremeCourt has laid downand
Congress has recentlycodifiedwith respectto habeaspetitionsgenerally, anddeath penaltyhabeas
petitionsin particular,barthehabeaspetitionerfi-omraisingthe claim. In otherwords,those courts
too have not reachedthe merits,although 1should notethat in Mr. Breard'sown case, again, one - 12-
of thejudges on the panel - althoughhe concurredinthejudgment sayingthatthe court couldnot
provide relief - emphasized the importance of the rights at issue.
If you put the two cases involved with respect to Mr. Breard- that is Paraguay'scase
asserting its rights and Mr. Breard's case assertinghis rights - together,the Court can appreciate
the difficulty. The claimhere arises from a failure to notify. Notwithstandingthe discussion,the
United States this morning with respect to what the Vienna Convention and what the various
discussions were, it seems to me that there can be no dispute that an obligation in Article 36,
paragraph 1 (a)r,equiring the detaining State to advise the national of his right to consult consul,
has a very obvious purpose,that is to ensurethat that detainee is knowledgeable, becomes advised
of his or her rights. Andyet the combinationof the holdingsin Mr. Breard'scase andin Paraguay's '*ir
own suggestthat, even in a case where the claim arises from failureto notify andthe petitione-
the habeaspetitioner, in one case - learns of the rights under the Vienna Conventiononly after
he has gone through the proceeding in which he hasbeen deprived of them, he is too late to raise
them. Indeed, without going into the nuances of United States law, effectively the holding in
Paraguay'sown case, because of the peculiar limitations on federal courts'authority to provide
relief, was to the sarne effect -that Paraguay because it was attackingor, in the understanding
of the Court, attacking the judgment - was in effect too late because it would be undoing prior
State action.
1do not mean to suggest that those cases are relevant to this Application. To my mind the
w
only relevance hereisthat clearlyParaguay should notbe penalized forsome suggestionthat it has
delayed. Clearly there have been substantial efforts to resolve the dispute prior to reaching the
Court.
There is, however, one more line of cases in the United Stateswhich may be relevant and
that is, at least two courts have addressedthe suggestion where the impact of a failure to notify
under the Vienna Convention and the possible impact that might have on the enforcement of a
conviction. We would be happy to provide the Court with a copy of the case that 1am about to
refer to, butt is a case fromthe United StatesCourtof AppealsfortheNinth Circuit - this is one
of the federal courts of appeals and that case consideredfederal regulationsthat require federal - 13 -
officials, immigration officials, to advise an alien detainee of his or her rights under the Vienna
Convention. The regulations are explicitly intended to implement the Vienna Convention, the
obligations. The federal court to which 1refer did set aside a conviction for illegal entry after
deportation as a result of the immigration authority'sfailureto comply with this regulation. The
court reversed the conviction on the ground that the underlying order of deportation was invalid
because the arresting authorities had failedto notifythe defendant at thetime of his initial detention
of his right to contact a consular official. The court went further to determine that prejudice was
present and it therefore afforded the relief. It built on, by the way, an earlier case from therne
court of appeals. In short, there is authority in the United Statesthat, in fact, a failure to comply
with the Vienna Convention obligations can have an effect on the validity of a conviction obtained
in the tainted proceedingsand 1shall return to that point in a few moments when talkingabout the
United States submissions on the merits.
1would like to address now the United States suggestion that there is no legally cognizable
claim in so far as it might be relevant not to jurisdiction but to the circumstances forming the
Court'sdecision whether to grant provisional measures.
1should start by noting that whatever the weight of this factor in another case, it is hard to
see how it could weigh against provisional measures here where there appears to be agreement on
the failure to comply with the underlying obligations and the dispute is very much about the
consequencesthat should flow. It would seemto me that the Court should exercise serious caution
in deciding in the face of a conceded violation - that the applicant State does not bring a
sufficientlyweighty case to warrant provisional measures. 1would think that that caution would
apply particularlywhere the suggestionof the United Statesthat there is no remedy, and hence no
legally cognizable claim, appears to contradict so squarely the fundamental principle as to the
remedy of restitution, the applicability of that remedy in the event of an intemationally wrongful
act and the substance of that remedy, that is, to restore the situation that existed prior to the
wrongful act. Given that the United States position is so squarely inconsistent with that basic
understanding, 1 would think the Court would want to exercise extreme caution before reaching a
decision that somehow the Vienna Convention was intended as an exception to that principle. - 14-
In any event, however, we believe thatthe United States submissiondoes not hold up even
on its own terms.
First, the United Statesargumentis essentiallythat the Court shouldoncludethat Paraguay
is not entitled to the remedy it seeks becauseone looks in vain, in Article 36 or elsewhere in the
ViennaConvention,or eveninthe legislative history,forconfirmationthatthatremedy is available.
With al1due respect, we would suggest thatthe United States is engagedon a misguided search.
One need not findthe remedy in the text of the Convention. If the United States argument were
accepted,it wouldbenecessary to reproducetheArticleson StateResponsibilityin everytreatyand
surely that is not the expectation oftreaty drafters. Instead,the fundamentalunderstandingwith
respectto remedies ispart ofa legalcontextinwhich anytreaty must operateand thereforethe fact 1.
that one does not findan explicitconfirmationof the remedyParaguay seeksin eitherthe Optional
Protocol or the Vienna Convention itself, shouldcertainly not lead to the conclusion that that
remedy is not available. Indeed,this Court would haveto reverse or repudiate a long line of
authoritiesbecause it has never imposeda requirement in considering whether particular remedy
was availablethat that remedy appearinthe giveninternationalinstrumentonwhich the claim was
founded. Again, ifone would recallthe eminentlyjustifiable range of remediesthis Courtprovided
in theTehranhostagescase one would havea hard time finding explicit confirmation for each of
those remedies in the underlying instrument. Ineffect, the United Statesargument here, their
reading of the Vienna Convention,will effectively limit this Court to grants of declaratory relief w
without the power to order a remedy. That role is plainly inconsistentwith the understanding of
parties who both adhereto an internationaltreaty and subscribe to a dispute resolution protocol.
It is intrinsicto the notion of a violation,as Chorzowitself suggests,that consequencesflow from
that violation.
Again, however, even on the United States own terms, even if one were looking to the
Vienna Convention itself, there would notbe the support that the United States finds.
First, with respectto ProfessorLee'streatise. The caseto which the United Statesreferred,
although it is only a brief account in the treatise, by noeans suggests that a remedy is not
available. Indeed,the Court actually went to the issue,or it appears fromthe brief account in Lee, - 15 -
and decided that the applicant could not showprejudice. From the brief account in Lee itappears
that that case actually supports Paraguay'sargumentthat a remedy is available, even if itmay affect
the validity of the underlying conviction. Lee then follows the discussion of the Italian case, with
a discussion of the two cases from the United States that 1have just described which indeed do
draw consequences as to the validity of an underlying conviction from a failure to notiS, under
Article 36. To the extentthat it is relevantnow - and 1will addressthat issue ina moment - the
weight of Lee's treatisesuggests that Paraguay is entitled to its remedies.
Likewise with respect to the negotiating history, the United Statespoints to certain sections
of that drafting historyto supporta contentionthat the parties did not intendthe Conventionto alter
the operation of domestic criminal proceedings. Yet the history on which the United States bases
its argument support an opposite conclusion. In particular, the United States referred, but not by
narne, to statements by Mr. Kostov, a delegate of the SovietUnion and Mr. Avakov, a delegate of
Belorussia, andpresentedthose statementsassupportingtheviewthatthe Convention didnot intend
to alterthe effect or haveany effect on domestic criminal proceedings. In fact, Mr. Kostov argued
furtherthat paragraph 2 of Article 36 as then drafted, and asultimately adopted by the Convention,
was an attempt to interfere with the interna1affairs of States by hampering the administration of
justice in regard to aliens, and that that version would make it difficultfor States to exercisetheir
sovereign right to prosecute aliens who broke the law. Mr. Kostov and Mr. Avakov spoke in
support of restoring the ILC's draft of paragraph 1of Article 36 (b). Mr. Evans, a delegate of the
United Kingdom, characterizes the Soviet proposa1as follows: according to Mr. Evans, it would
have meant that the laws and regulations of the receiving State would govem the rights specified
in paragraph 1providedthat they did not render those rights completelyinoperative. In the event,
however, the Conference chose to eject the proposed Soviet amendment. Thus, so far as we
understand the statements,the legislative history on which the United Statesrelies, was in support
of an altemative to the provision in the Vienna Convention which would have deluded the effect
of that Convention specifically withrespect to its possible effect onriminalproceedings. Thus the
legislative history supports the notion that the Convention in appropriate instances might even
subordinate municipal criminal procedures to the provisions of Article 36, paragraph 1. - 16-
The United Stateshasalso suggestedthat it wouldbe unwise forthis Court tograntParaguay
the remedies it seeks becausethat would somehow openthe floodgatesto claims likethat brought
by Paraguay.
We would respectfullysubmitthat, in the first instance,thatthe fact that others mighthave
the sarne right that Paraguaymight have should not deter the Court from recognizingthat right in
Paraguay; that would be fundarnentallyinconsistent with the judicial role.But in any event we
do not believe that there is any basis for the scare the United States raises. Contrary to the
characterizationof the United States,Paraguay's Applicationis not an appeal to this Courtand the
questionbeforethis Courtisnot whether,inevery criminalproceeding involvinga foreignnational,
a violation of the Vienna Convention requires a new trial. Paraguay's actionis not an appeal, it v"
does not askthe Court to review or reverseanyjudgment of a municipalcourt, it does not askthe
Courtto review the proceedingsin thatcourt orto reviewthejudgrnentsof that court. Further, the
question is not what remedy would be required in every criminal proceeding everywhere in the
world, the question is whatcan Paraguayshow with respect to this proceedingand on the basis of
that showing, what relief would it be entitled to. The facts relevant to that enquiry are quite
discreet and to the extent that, as the United States suggested this morning, it would require a
consul to bring on evidencewith respectof practices of the like, if a court foundthat relevant, the
foreignsovereigncould certainlymakeadecisionwhen itsoughtthereliefwhetherornot itwished
to do so.
Finally, as this case demonstrates,cases of this kind would prompta sovereignto come to
this Court only with the greatest reluctance and even on the terms of the United States own
argument, we do not think there is any basis for the concem.
Finally, the United States suggeststhat Paraguay'sApplication wouldrequirethis Court to
anticipate a judgment and would in fact anticipate a judgment in favour of Paraguay. That
suggestion is belied bythevery disciplinedand narrowlytailored reliefthat we request. Butbefore
addressing the relief Paraguayrequests,1would like toexamine the United States' submissionsin
the light of the concern that the United States itselfses, that is that an indicationof provisional
measures here might anticipate a judgment. The United States comesto this Court and asks the - 17-
Courtto reject Paraguay'sApplicationon the basis of the facts that it says it will be ableto prove,
onthe basis of a survey of State practice, of whichwe were advisedthis morning,and onthe basis
of a showing on the legal rights at issue that 1havejust addressed. Clearly the Parties disagree
about certain aspects of the consequencesof this behaviour. If the Court would arrest a denial of
the request for provisional measureson an assumptionthat the United States will be able to prove
its facts and Paraguaywill not,that indeedwould anticipate ajudgment. Equally,the extentof the
informai survey of State practice might be relevant to the eventual determination of this Court,
surely the Court should not make a decision on the basis of the adviceprovided overthis lectern
as to an informa1survey conducted by the United States Department of State. That too would
surelyanticipatethe proof, and hencethejudgment, that would be elicitedat themerits phase. And
finally the United States asked this Court to reject Paraguay'sclaim on the basis that it has no
legallycognizableclaim. Again,whilewe disagreewith that suggestionand while webelievethe
suggestion is not supported even by the authorities that the United States cites, nothing would so
surely anticipate ajudgrnent by this Court than a conclusion that notwithstanding theviolation in
this case, the remedy Paraguay seeks is not available.
Conversely, Paraguay asks for provisional measures that are extremely narrow. The only
thing in effect that Paraguay asks this Court to do at this time is to order that the United States
ensurethat Mr. Breard is not executedwhilethis case is before the Court. We wouldwelcomethe
views ofother Statespartiesthatmight intervene,we arecertainthat theywould enlightenthe Court
and we would fully expect the Court to take into account any other State that were motivated
enoughtojoin these proceedings. But surelybeforereceivingthoseviews,the Court shouldensure
that the case stays before this Court, that the case remains in its full dimension. As 1stated this
morning, Mr. Breard,even if this Court grantsthe interimrelief, will remain in Virginia'scustody.
If the United States prevails on the merits on this case Virginia will be able to schedule a new
executiondate and put him to death. Surely the United States doesnot mean to suggestthat the
delay in executing the sentence of death overrides Paraguay's interestin the life of its nationalto
the extentthat the Court would wishto balance in any way the effect ofthese interimmeasureson
the two Parties, or in any way to protect against a decision here, either granting or denying the - 18 -
provisionalmeasures Paraguayseeksina mannerthat anticipatesitsjudgment. Itplainly,Paraguay
respectfully submits,must grant the narrowlytailored measures Paraguay seeks.
1very much appreciate the Court's courtesy this afternoon.
The VICE-PRESIDENT: Thank you very much Mr. Donovan. Before you conclude the
President would liketo address a question toyou.
ThePRESIDENT: Mr. Donovan,youreferredtotwoUnited Statescaseswhichdidoverturn
earlier decisions on the grounds of failure to comply with the Vienna Convention on Consular
Relations,i1 understoodyoucorrectly. Didthosedecisionsovertumingthe earlierjudgmentslead
to retrials on the original charges or simply in dismissal of the original charges.
Mr. DONOVAN: 1do not know the subsequenthistoryof those cases. 1do not believethat
there is anything inhose cases which would suggest that a retrial would not be possible and
certainly, as 1 have said, it is not Paraguay'sposition here that a retrial would be b1rred. But
cannot definitively answerthe Court'squestion,but 1would be happy to do so when we provide
those cases subsequently.
The PRESIDENT: Thank youvery much.
The VICE-PRESIDENT: May 1ask what is the earliesttime you could furnish an answer
w
to that question.
Mr. DONOVAN: Thisafternoon,thatisin so far as it isdisclosedbythe published accounts
of those opinions.
TheVICE-PRESIDENT: ThankyouMr. Donovan. Thatconcludesthe secondround oforal
pleading of Paraguayand wewill have a shortadjournmenttoenablethe United Statesto make its
submissions.
TheCourt adjournedfrom 3.50 to4.20 p.m. - 19-
The VICE-PRESIDENT: Please be seated. We meet now to hear the secondround of oral
submissions ofthe United States,and 1 give thefloorto Mr. Andrews, Legal Adviserto the United
StatesDepartment of State.
Mr. ANDREWS: Mr. President, 1would like to cal1to the podium Mr. John Crook to
respond onbehalf of the United States.
The VICE-PRESIDENT: Mr. Crook, please.
Mr. CROOK: Thank you Mr. President. Membersof the Court.
InOurfinalpresentation thisafternoonwewill make, 1believe, sixpoints,attemptingtobring
together and respondto a number of the considerationsthat distinguished counsel for Paraguay
introduced in his rebuttal. shall try not to be too long.
My first point is this, that it seems to me that throughout this case, and certainly in the
rebuttal we have just heard from Paraguay, there has been a signal of voidance ofthe burden of
proof that the Applicant here must bear. They have in fact proved very little, if anything. Now
Mr. Donovaninhis presentationthis afternoontriedto makeup someofthe deficienciesby seeking
to buildupon the evidenceandargumentationthat we gave youthis morning. Asto his arguments,
1wouldsimply invitethe Courtto consider the sourcesand determine in its ownmind whetherOur
readingof them, or Mr Donovan'sreading of them, is the better. But itdoes seemto me that it is
an anomalous position; a peculiar situation where the burden of the Applicant'sproof is that the
Respondentdid notdisprovetheApplicant'sassertionsto the satisfactionof the Applicant. 1would
certainly disagree with that characterisation, but it does seem to me unsound in relation to the
burdensthat the Applicant here must bear.
There is one key issuehere that 1think we should take note of and it is an issue to which
counselfor Paraguay did not refer, and that is the key issue of whetherin fact consular access in
this case would have made any difference. Counsel for Paraguay ignored that point in his
summation,and it seems to me that it is an important point and is one that cannot be ignored,
because al1of Paraguay'scase here rests on the factual premise, the assumption,the belief, thatthings would have been different hada Paraguayan consulbeen involved. For al1the reasonsthat
we suggested, the reasons that Ms Brown suggested,that seemsto us to be not the case,that the
burden here is on the Applicant, the burden has not been met.
My secondbasic point Mr.President, isthat the Applicanthere seemsto me haveresponded
to largeparts of the United Statessubmissionby ignoring themortrivializingthem. Theyignored
Ms Brown'slong, and 1 think very informative description, of the realities of consular practice.
Paraguayhadnothingto Sayaboutthat this afiemoon. In largemeasurethey ignoredtheindications
that we brought to you regardingthe realities of how States interpret and implytheir obligations
under the Vienna Convention on Consular Relations. They ignoredaltogetherthe circumstances
ofMr. Breard'strial, defencesforwhich hewas charged,the adequacyofhiscounsel,theextensive 1
nature of the appellate remedies that he pursued. They ignored large parts of the United States
submission.
My third major point, Mr. President, is that it seems to me that the presentation here by
distinguishedcounsel for Paraguayshowed an unduepreoccupation with thedomestic litigationin
the United States in which matters similar to these are being addressed. Counsel for Paraguay
indicatedthat in his view,hose cases were not relevant. We would agree, and we thereforewill
not seek hereto re-argue them.1do wish here thoughto respondparticularlyto the casesthatwere
raisedat the last minute, andthat were the occasion ofthe questionfromPresident Schwebel. The
Applicantwill presumably makethose availableto the Court, and the Court can inspectthem and w
come to its ownjudgment regardingtheir implications. Our recollectionis that the casesthat the
Court has requested were immigrationcases involving deportationorders, and not criminalcases.
Thatis Ourrecollection, and wesuffer fromnot havingthe text withus, but it is Ourbeliefthatthey
turnednot onthe Vienna Conventionon ConsularRelationsobligationsas such,but onthefactthat
the immigration service had failedto follow its own regulations,calling for consular notification.
Underfederal law, federal agenciesare required tofollow their regulations,and that wasthe basis
forthe courts'ecision on thosecases. That is Ourrecollection,ifwe have mischaracterizedthem,
the Court will soon have the opinionsand will be ableto see, butthat is our understandingat
was involved in those cases. -21 -
My fourth point isthat it seemsto me that theApplicants in this case have ignored- have
dealt with significant parts of the United Statespresentation this morningby ignoring it or in
any case by trivializing the implications. We spent a good deal of time here going through the
implications of the course of action that is advocated by Paraguay, for example, for other
governments, the other parties to the Vienna Convention onConsular Relations.
Counsel for Paraguay respondedto that essentiallyby trivializing the point, saying wehave
one case and one case only here, and that'sl1the Court need concern itself about. With respect,
Mr. President,that seemsto me notto be goodenough. With respectto the concernsof the United
States,again, counsel for Paraguayminimized ortrivialized the consequences of the remedy that
they seek here, but again 1think in al1fairness, that is not good enough. The United States has
significant interest in the orderly and authoritativeadministration ofits criminal law, certainly in
a case where the murdertook place in 1992, thetrial took place in 1993,and there appearsto be
no guilt,no dispute between the parties as to the guilt of the accused.
1 think the same observation holds true as well concerning Our points regarding the
implications of the remedy sought by Paraguay for the Court. The concern is a real one, the
implicationsfor other countriesand other situationsare real, they cannot be ignored. That brings
me closer to my final points, Mr. President.
The fift pohint isthe rather basic question. 1sthere a remedy? And the associated question,
is therejurisdiction here? For the reasons that1 indicated, it seems to me that the Court must
considerthe likelihood ofparaguay being able to show thatthe remedy that underlies their whole
case existsand is availableto them within the fourcorners of the Vienna Convention on Consular
Relations. It is not appropriateforme hereto re-arguethe points 1made this morning but1simply
invitethe Court to considerthem. Thepoint thatthere is no supportinthe text, the point that there
is no support in the history,the point that there is no support in practice. 1think it is a fair gloss
on that, that Paraguay is quite unlikely to be able to show that the remedy it seeks either is
available,or inany case, is to be found within thesphere of the Vienna Convention on Consular
Relationswhich of course is the requirement for thereto bejurisdiction. We are at somethingof
a disadvantage becauseParaguay,astheApplicant,hasneverreally madethe case. Wehave sought -22 -
to respond, Paraguay hasthen tried to make its case by dealing with Ourresponse andwe are left
in this very unsatisfactory situation, Mr. President,that the basic burden of the Applicant hasnot
been met. 1 think 1 would agree here with distinguished counsel for Paraguay who, in his
presentationthis aftemoon, used words to the effect- and1freely admit that this is a paraphrase
and nota quote; 1hope this is a fair paraphrase- that to find the remedy, you must go beyond
the text of the treaty, that is the problem, Mr. President, there is no jurisdiction. The Applicants
seem unlikely to prevail on the merits.
Let me turn to my sixth and final point, Mr. President, and that is the reference to the
Hostagescase. Now, there was 1think perhapsa misunderstandingof Ourposition and1want to
deal with it,because 1think it is important. It is not our contention herethat the Court is divested 1
ofjurisdiction by reasonof the factthat we haveconfessederror and admittedthat Mr. Breard was
not givenconsular notification,that is not Ourpoint at al]. Our point is the muchbroader one,that
1havejust discussed,thatthe remedythat is soughthere isaremedythat goesfarbeyondthe scope
of the Vienna Conventionand far beyond the scope of the jurisdiction.of the Court.
Let me respondto other points regardingthe Hostagescase. It does seemto me that it is -
unseemlyis perhaps too strong a word - but it is not quiteright to draw upon the Hostagescase
astheprecedentforactionby this Courthere. TheHostagescase involvedamuchmoreaggravated
situation,the continued detention of a large number of hostages in conditions ofapparent danger,
in violation offundamental rules for the protection of diplomatsand consuls. It was a profound, v
potentiallyvery dangerous, disruptionof internationalrelationsand it seemsto me that it perhaps
trivializes that case to analogize it to a situationwhere the Applicantseekingnot to deal with
matters ofgreat consequenceat stake in the Hostages case, but rather to disruptthe operations of
the criminal courts of a party to the Statute of this Court. It seems to me the analogy is not
appropriate andit is not one thathould illuminatethe deliberationsof this Court. Mr. President,
1apologizethat these remarks have been somewhat disjointed,the circumstancesare a bit difficult,
but 1 hope they have been of some use in clarifj~ingOurposition. As always my delegation
appreciatesthe courtesy of the Court in listeningtourpresentation. You haveheard alreadythe
submissionof the United States Agent and it is only for me to thank the Court. - 23 -
The VICE-PRESIDENT: Thank you Mr. Crook. This brings us to the end of these oral
hearings. 1would liketo expresson behalfof the Courtitswarm thanksto the Agents, counseland
advocatesof the Parties for the quality of their arguments andthe courtesy and CO-operation they
have shown. Inaccordancewith the usualpractice,may 1ask the Agentsto remain at the disposa1
of the Court for any further information whichit might need and, subject to that, 1now declare
closed the oral hearings on the request for the indication of provisional measuresin the case
concerning the Application of the ViennaConvention onConsularRelations (Paraguayv. the
UnitedStates). The Court will now withdrawto deliberate. TheOrder containing the decisionof
the Court will be read at a public sitting to be held on Thursday 9 April. There being no other
matters before it today,the Court will now rise.
TheCourt roseat 4.35p.m.
Audience publique tenue le mardi 7 avril 1998, à 15 heures, au Palais de la Paix, sous la présidence de M. Weeramantry, vice-président, faisant fonction de président