INTERNATIONAL COURT OF JUSTICE
LAGRAND CASE
(GERMANY V. UNITED STATES OF AMERICA)
---------------------------
COUNTER-MEMORIAL
SUBMITTED BY
THE UNITED STATES OF AMERICA
27 MARCH 2000
__________
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TABLE OF CONTENTS
PART I INTRODUCTION AND OVERVIEW .................. 1
PART II THE FACTS .................................. 9
CHAPTER I FACTS REGARDING THE LAGRAND BROTHERS ....... 10
CHAPTER II THE MULTIPLE APPELLATE PROCEEDINGS ......... 15
CHAPTER III EFFORTS BY THE UNITED STATES TO IMPROVE COMPLIANCE
................................. 17
CHAPTER IV GERMANY'S SPECULATIVE AND UNJUSTIFIED CLAIMS ABOUT
THE IMPACT OF CONSULAR ASSISTANCE ................................. 21
Section I. Introduction ........................... 21
Section II. The Brothers Had No Ties with Germany .................................... 22
Section III. The Memorial's Unjustified Claims About Consular Assistance ..................
25
Section IV. The Memorial's Exaggerated Claims About the Potential Impact of
Mitigation
Evidence ................................... 32PART III ADMISSIBILITY .............................. 40
CHAPTER I INTRODUCTION ............................... 40
CHAPTER II GERMANY'S OTHER CLAIMS ARE INADMISSIBLE .... 42
Section I. The Court Need Only Address Germany's First Submission in Order to Do
Justice Between the Parties .......... 42
Section II. Germany's Remaining Claims Are Inadmissible Because Germany Asks the
Court to Assume an Inappropriate and
Unauthorized Role as the Overseer of U.S. National Courts ....................... 43
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Section III. The Circumstances and Timing Chosen By Germany for Filing its Case
Render Germany's Third
Submission Inadmissible .................... 46
PART IV THE CLAIMED VIOLATIONS OF THE VIENNA CONVENTION
.......................... 55
CHAPTER I INTRODUCTION ............................... 55
CHAPTER II GERMANY'S CLAIMS OF OTHER VIOLATIONS OF ARTICLE 36
.............................. 56
CHAPTER III GERMANY'S CLAIM OF INTERFERENCE WITH RIGHTS OF
DIPLOMATIC PROTECTION IS OUTSIDE THE COURT'S JURISDICTION AND
DEFECTIVE ON THE MERITS .................... 59
PART V THE ISSUE OF PROCEDURAL DEFAULT ............ 61
CHAPTER I THE PROVISO OF ARTICLE 36(2) DOES NOT REQUIRE REMEDIES
IN THE CRIMINAL JUSTICE PROCESS ................... 64
CHAPTER II ARTICLE 36 AS A WHOLE ALSO DOES NOT SUPPORT
GERMANY'S CLAIM .................... 69
Section I. The Text of Article 36(1) Does Not Require a Remedy in the Criminal Justice
Process ................... 69
Section II. The Negotiating History of Article 36(1) Contradicts Germany's Claim
...................................... 72
CHAPTER III STATE PRACTICE, INCLUDING GERMANY'S OWN PRACTICE,
CONFLICTS WITH GERMANY'S CLAIM ...................................... 76CHAPTER IV EVEN IF ARTICLE 36 IN SOME SENSE ESTABLISHES
INDIVIDUAL RIGHTS, THERE IS NO REQUIREMENT THAT THOSE RIGHTS BE
JUSTICIABLE IN NATIONAL CRIMINAL JUSTICE SYSTEMS ............................ 80
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PART VI THE COURT'S ORDER OF 3 MARCH 1999 .......... 88
CHAPTER I THE CIRCUMSTANCES OF THE COURT'S ORDER AND ACTIONS
TAKEN IN RESPONSE .............. 90
Section I. Germany's Filing and the Court's Order ...................................... 90
Section II. Germany's Case in the U.S. Supreme Court .............................. 95
CHAPTER II THE UNITED STATES ACTED AS CALLED FOR BY THE COURT'S
ORDER ....................... 98
CHAPTER III THE COURT'S ORDER BY ITS TERMS DID NOT CREATE
BINDING LEGAL OBLIGATIONS ........... 106
CHAPTER IV PROVISIONAL MEASURES OF THE COURT DO NOT CREATE
BINDING LEGAL OBLIGATIONS BY OPERATION OF ARTICLE 41 OF THE
STATUTE OF THE COURT OR OF ARTICLE 94(1)
OF THE UNITED NATIONS CHARTER, OR BY OPERATION OF GENERAL
PRINCIPLES OF INTERNATIONAL LAW .......................... 113
Section I. Introduction ........................... 113
Section II. The Constitutive Instruments of the Court Do Not Confer Authority to Issue
Binding Provisional Measures ............... 115
Section III. The Court's Practice Confirms the Non-Binding Character of Indications of
Provisional Measures ....................... 128
Section IV. Germany's Functional Argument for a Binding Obligation to Comply With
Provisional Measures Also Lacks Merit ...... 131
Section V. Whatever the General Rule May Be, This Order Should Not Be Construed to
Have Binding Legal Character ............... 132
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Section VI. The United States Conduct Following Initiation of This Proceeding Also Has
Not Violated Any Customary International Law Obligations ................................ 134
PART VII THE COURT CANNOT CREATE OR COMPEL A GUARANTEE
REGARDING FUTURE CONDUCT ....... 136PART VIII CONCLUSION AND SUBMISSIONS ................. 139
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PART I
INTRODUCTION AND OVERVIEW
1. Pursuant to the Court's Order of 5 March 1999, the United States of America submits its
Counter-Memorial in this case.
2. The case results from the failure of competent authorities of the United States to inform
Walter and Karl LaGrand without delay of their right to have a German consular post notified
of their arrest and detention following their 1982 arrest for murder. The competent authorities
of a State Party are required to so inform arrested nationals of another State Party by the last
sentence of Article 36(1)(b) of the1Vienna Convention on Consular Relations ("the Vienna
Convention" or "the Convention"). The United States of America and the Federal Republic
of Germany are, and at all relevant times have been, States Party to the Vienna Convention.
Accordingly, the failure promptly to inform the LaGrands of the right of consular notification
as required by Article 36(1)(b) of the Vienna Convention was in breach of the United States
legal obligations to Germany.
3. As will be discussed in Part II, the murder was committed in Arizona, and Walter and Karl
LaGrand were arrested, detained, tried, and sentenced under the jurisdiction and laws of
Arizona. Arizona officials were the "competent authorities" for purposes of the consular
notification obligations of Article 36(1)(b) of the Vienna Convention with respect to them.
The United States of America recognizes that under international law, it is internationally
responsible for the actions of the State of Arizona.
4. The Federal Republic of Germany began to provide consular assistance to Walter and Karl
LaGrand in 1992. Insofar as we have been able to determine, the German Government did not
raise the issue of consular notification with the U.S. Department of State or any other U.S.
Federal authority until 22 February 1999, two days before Karl LaGrand's scheduled
execution and only eight days before the filing of this case on 2 March 1999. 2
5. In U.S. practice (and in the general practice of States Party to the Vienna Convention
insofar as we can determine), when a sending State raises with the receiving State the
possibility that consular notification obligations under Article 36 of the Convention have not
been observed, the receiving State ordinarily investigates the allegation. If a violation is
confirmed, it is appropriate to apologize for the violation and to take action as required to
avoid any recurrence. Accordingly, upon learning of the German Government's concerns that
led to the filing of this case, the Department of State initiated a careful inquiry into the
consular notification issues related to Walter and Karl L3Grand. The process and results of
that inquiry are described in the report at U.S. Exhibit 1.That report has been provided to the
German Government.
6. Through this inquiry, the United States confirmed that the competent authorities of the
State of Arizona did not inform Walter and Karl LaGrand "without delay" that they could
request that a German consular post be notified of their arrest and detention, as required by
Article 31(1)(b) of the Convention. The United States of America bears responsibility forsuch non-performance of U.S. obligations under the Convention by Arizona. Accordingly, the
United States acknowledges that, as a result of the failure to inform Walter and Karl LaGrand
of their right to consular notification, there was a breach of a legal duty owed by the United
States to the Federal Republic of Germany under the Vienna Convention.
7. On 18 February 2000, the U.S. Department of State presented to the Embassy of the
Federal Republic of Germany the diplomatic note at U.S. Exhibit 2. In this note, the
Department conveyed the apologies and regrets of the United States for the failure to comply
with the international legal obligation to inform the LaGrand brothers without delay that they
could have a German consular post notified of their arrest and detention. The note also
described the extensive efforts that the United States of America is making to improve
understanding of and compliance with consular notification obligations throughout the United
States, including in Arizona. With this note, the Department also provided a copy of the report
of its investigation mentioned above.
8. The nation-wide program of actions aimed at preventing future cases of this kind involving
nationals of Germany and of other States Party to the Vienna Convention is further described
in Part II of this Counter-Memorial. The Department of State is engaged in an active program
of outreach and education with federal, state and local law enforcement, judicial, and other
authorities throughout the United States to ensure that those authorities know of and properly
implement U.S. consular notification obligations under the Vienna Convention. The goal is to
avoid, or in any case to reduce to the minimum, future failures to follow required consular
notification procedures by authorities in any U.S. jurisdiction.
9. The United States has also invited the Government of Germany to raise with the
Department of State any other cases in which it has concerns about compliance with consular
notification obligations. The United States remains prepared to work with Germany to ensure
that its nationals are properly informed that they may request consular assistance from
Germany's consular posts in the United States.
10. Thus, the United States acknowledges and regrets that the competent authorities in the
United States failed to comply with the consular notification obligations contained in Article
36(1)(b) of the Vienna Convention with respect to Walter and Karl LaGrand. The United
States has officially apologized for this failure to the Government of Germany, and is taking
extensive steps aimed at preventing a recurrence, both in Arizona and elsewhere in the United
States. This goes to the heart of what Germany seeks through its first submission. 4
11. Germany's Memorial and its other submissions set out several other matters on which
Germany seeks the judgment of the Court. For the reasons explained in Part III, the Court
should find these additional claims to be inadmissible. The remaining parts of this Counter-
Memorial address the legal bases of Germany's additional claims, should the Court conclude
that they are admissible. Part IV refutes Germany's claims of further violations of the Vienna
Convention and of general international law. Part V answers Germany's claims regarding
"procedural default" and shows that Article 36 does not require States Party to the Vienna
Convention to create an individual remedy enforceable by individuals in national criminal
proceedings. Part VI answers Germany's claims that the United States failed to comply with
legal obligations arising from the Court's 3 March 1999 Order indicating provisional
measures. Part VII addresses Germany's demand that the Court require the United States to
provide a guarantee against future repetition. Part VIII summarizes the case and contains the
U.S. submissions to the Court.12. As Germany's Memorial makes clear, this case does not concern the position of capital
punishment in international law:
Germany wants to emphasize that its Application is not directed against capital punishment,
neither in general nor in regard to the way the death penalty is applied in any particular
country.5
As the Court has made clear here, as with Paraguay's previous case related to consular
notification under Vienna Convention:
The issues 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.
PART II
THE FACTS
13. The facts of this case are less complex and less contested than those in other cases now
before the Court, but there are important omissions from Germany's narrative. There are also
some material disagreements on factual inferences to be drawn as to certain matters. This Part
seeks not to repeat information contained in the Memorial, but it will address some matters
not discussed there that help to explain (if not excuse) the acknowledged failure to comply
with Article 36(1)(b). This Part also addresses Germany's attempt to justify its last-minute
filing of this case.
CHAPTER I
FACTS REGARDING THE LAGRAND BROTHERS
14. There is no substantial dispute regarding the fact that Walter and Karl LaGrand together
attempted an armed bank robbery in Marana, Arizona, on 7 January 1982. During the
attempted robbery, Ken Hartsock, the bank manager, was murdered and Dawn Lopez, a bank
employee, was repeatedly stabbed and almost killed. Letters from senior German officials to
their United States counterparts acknowledge both the brothers' guilt and that they were fairly
tried. President Herzog wrote to President Clinton on 5 February 1999 that:
In no way do I doubt the legitimacy of the conviction no7 the fairness of the procedure before
the courts of the State of Arizona and the federal courts.
German Minister of Justice Däubler-Gmelin wrote to U.S. Attorney General Reno on 27
January 1999 that:
It is beyond dispute that the LaGrand brothers committed a dreadful crime, marked by the fact
that it was carried out with particular brutality. From my point of view as well, there are no
doubts about the gravity of the guilt these sentenced offenders bear for the crime they
committed, nor are there any doubts about the fact that the proceedings were conducted under
the Rule of Law - ultimately leading to imposition of the death penalties with final and8
binding effect - before the courts of the State of Arizona and before the Federal Courts.15. There also does not appear to be dispute regarding the circumstances of the LaGrand
brothers' births and their move to the United States, although there are some differences in
characterization. The brothers were born out of wedlock in Germany to a mother of German
nationality and fathers of U.S. nationality. Walter was born on 26 January 1962 and Karl on
10 October 1963. A third U.S. citizen serviceman stationed in Germany with the U.S. Army,
Masie LaGrand, subsequently married their mother and adopted Walter, Karl, and their half-
sister. Masie LaGrand brought his German wife and three adopted children to the United
States in February 1967. At that time, Walter was five years old and Karl almost three-and-a-
half. The brothers never returned to Germany except to live in a U.S. military housing
complex associated with the U.S. Army base in Mannheim, Germany, for about five months
in 1974. Thus, although the Memorial speaks broadly of "the upbringing of the boys in
Germany" in fact they were largely brought up in the United States after living in Germany
for five and three years in their early lives.
16. By the time of the January 1982 murder, the brothers appeared in all respects to be native
citizens of the United States. Their language was English, not German. Their appearance,
mannerisms, and characteristics were those of citizens of the United States, not of Germany.
Indeed, it appears that their adoptive father thought that they had in fact become U.S. citizens,
10
and that the brothers at times identified themselves as U.S. citizens.
17. There is also no dispute that, although they were fully American in outlook and
characteristics and spoke little or no German, Walter and Karl LaGrand were in fact German
citizens and not citizens of the United States. The fact that the brothers' natural fathers were
both U.S. servicemen stationed in Germany was not sufficient to make the 11others United
States citizens under the relevant citizenship laws of the United States. In addition, the fact
that the LaGrand children were adopted by a U.S. citizen father did not automatically confer
U.S. citizenship upon them. Their adoptive father, Masie LaGrand, could have arranged for
Walter and Karl LaGrand to be naturalized as U.S. citizens by completing the necessary
12
application and process. Masie LaGrand never did this however, apparently because he
mistakenly thought that his adopted children had automatically become U.S. citizens. Had
Walter and Karl LaGrand acquired U.S. citizenship, they would have lost their German
citizenship under the U.S.-German Treaty Establishing Friendly Relations of 25 August
1921. 13The United States accepts, however, that Walter and Karl LaGrand acquired German
nationality through birth in Germany to a German mother and remained German nationals
until their deaths in 1999.
18. There also is no substantial dispute that Walter and Karl LaGrand had difficult and deeply
troubled lives. As children, they repeatedly experienced rejection by their mother and their
adoptive father. During their early years in Germany, their care was at times turned over to
institutions. After they moved to the United States at ages five and three, this pattern
continued. Their mother took little or no interest in the brothers and welcomed their
placement in foster care. Their adoptive father apparently became abusive and in any event
eventually abandoned the brothers and their mother and sister. Arizona State records contain
numerous details of how the brothers felt rejected by their mother, angry, and frustrated by
their situation. Eventually the brothers drifted into anti-social and ultimately violent criminal
behavior, culminating in the murder of 7 January 1982.
CHAPTER II
THE MULTIPLE APPELLATE PROCEEDINGS19. Germany's Memorial lists the extensive series of appellate and other legal proceedings
brought by the LaGrand brothers to challenge their convictions and sentences. Because the
brothers faced capital punishment, these appeals were particularly rigorous. The convictions
and sentences of the Arizona trial court were first reviewed and affirmed by the Arizona
Supreme Court. The United States Supreme Court then declined to exercise its discretion to
grant further review. As was their right, the LaGrands then sought review of their
convictions and sentences by a federal district court under the habeas corpus provision of the
United States Constitution. (Habeas corpus proceedings provide a vehicle for persons in
detention to challenge the lawfulness of their detention in a court of law.) The federal district
court upheld the convictions and sentences. Its decisions were then reviewed and affirmed by
an intermediate federal court of appeals, and the United States Supreme Court then declined
16
for a second time to exercise its discretionary jurisdiction. Through these appeals,
appropriate judicial authorities determined that the LaGrands' defense lawyers had provided a
constitutionally sufficient level of representation and that the sentencing judge had
appropriately considered the mitigation and other evidence relevant to sentencing.
CHAPTER III
EFFORTS BY THE UNITED STATES TO IMPROVE COMPLIANCE
20. The United States accepts that effective compliance with the consular notification
requirements of Article 36 of the Vienna Convention requires constant effort and attention. As
described in the attached Declaration of M. Elizabeth Swope, the Department of State's Senior
Coordinator for Consular Notification, the Department of State is working intensively to
improve understanding of and compliance with consular notification and access requirements
18
throughout the United States, so as to guard against future violations of these requirements.
This effort has included the January 1998 publication of a booklet entitled Consular
Notification and Access: Instructions for Federal, State, and Local Law Enforcement and
Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular
Officials To Assist Them, 19 and development of a small reference card designed to be carried
20
by individual arresting officers. As of March 2000, the Department had distributed
approximately 44,000 booklets and over 300,000 cards to arresting officers, prosecutors, and
judicial authorities in every state and in other jurisdictions such as the District of Columbia.
The Department also has made the booklet available through libraries and the Internet,
through which it has been accessed thousands of times. 21The booklet is now widely available
to, and used by, criminal defense lawyers, detainees, and members of the public as well as by
federal, state, and local officials.
21. Consular notification and access obligations have also been reviewed at numerous training
seminars and meetings throughout the United States. Many of these events have been held in
states with significant populations of foreign nationals. Department of State officials have
traveled for this purpose to Arizona, California, Florida, Illinois, Massachusetts, New Jersey,
New Mexico, New York, North Carolina, Texas, Virginia, and Washington State. Department
officials have also spoken about consular notification and access issues at a number of
regional or national events, such as special conferences of the states that border Mexico,
seminars on international prisoner transfer, international and regional police chiefs and
sheriffs meetings, and meetings of federal and state prosecutors.22. Similar educational efforts in other states of the United States are continuing. In coming
months, the Department of State will be conducting programs on consular notification in
California, Hawaii, Nevada, Pennsylvania, Texas, and Utah. 22
23. As part of its ongoing efforts in many states, the Department of State has worked closely
with the State of Arizona, which has taken a number of specific steps to ensure that consular
notification is provided when required. The Attorney General of Arizona sent all Arizona
county attorneys a memorandum advising them of the requirements of the Vienna Convention
and providing excerpts from and information about the Department of State's booklet, and has
also written to the Chief Justice of the Arizona Supreme Court suggesting a change in the
rules of the courts of Arizona that would help ensure compliance. The Arizona Department of
Corrections has compiled and distributed within the Department of Corrections a list of
consular offices in the United States in or nearest to Arizona, and has adopted new consular
notification procedures. These and other specific instructions issued by Arizona authorities
have been supplemented by wide distribution within Arizona of the Department of State's
booklet, and by numerous training sessions. The Arizona Attorney General's Office is
continuing to work on these and other initiatives to improve understanding of and compliance
with consular notification and access obligations throughout the state.
CHAPTER IV
GERMANY'S SPECULATIVE AND UNJUSTIFIED CLAIMS ABOUT THE IMPACT
OF CONSULAR ASSISTANCE
Section I. Introduction
24. Although the parties seem to be in broad agreement about many of the facts, there are
some significant differences. The most important relate to Germany's suppositions about what
might have occurred had the LaGrand brothers been properly informed of the possibility of
consular notification. First, the Memorial presumes that, had the brothers been told in
January 1982 that a German consular post could be notified of their arrest, they would have
requested such notification. (The notification would have been given to the German Consulate
General in Los Angeles, approximately 700 kilometers/415 miles away from Marana,
Arizona.) Second, the Memorial argues that German consular officers from Los Angeles
would have given rapid and extensive assistance to the LaGrands' defense counsel before the
LaGrands' December 1984 sentencing, including obtaining from Germany evidence about the
LaGrands' early childhoods before they moved to the United States in February 1967. Finally,
the Memorial insists that such consular assistance would have fundamentally changed the
outcome of the sentencing proceedings, because consular officers would have provided
important evidence not otherwise available to the judge that would have persuaded him not to
sentence the brothers as he did. All three lines of argument rest on speculation about what
might have happened had the LaGrand brothers been told in 1982 that they could have the
German Consulate General in Los Angeles notified of their arrest and detention. None
withstands analysis.
Section II. The Brothers Had No Ties with Germany
25. First, the evidence undermines rather than supports Germany's belief that the LaGrand
brothers would have requested in 1982 that the German Consulate General in Los Angeles benotified. As the Memorial recognizes, the Vienna Convention leaves it entirely to the arrested
person to request consular notification.
[I]t is for him or her alone to decide whether he or she wants the consulate to be contacted or
not.25
However, foreign nationals -- particularly those who do not have strong connections with the
sending State -- do not uniformly request that the26 consular officials be notified after they are
informed that such notification is a possibility.
26. As described in the report of the Department's investigation, the LaGrand brothers were
thoroughly American in identity and outlook when arrested in 1982. The German Government
played no role in their lives after they moved to the United States in 1967 at ages five and
three. Neither brother had ever been individually documented as a German national, even
when they returned to Germany for a few months in 1974, when they appear to have traveled
on U.S. military travel orders. There is no indication that either brother viewed himself as
German in 1982, or would have looked to the German Government as a potential protector or
source of assistance. Even after German consular officials established contact with the
LaGrands in 1992, Walter LaGrand at least twice refused consular visits. 28
27. At the time of their arrests, the brothers did not identify themselves to the arresting
officers as Germans. The evidence indicates that Walter identified himself to detaining
authorities as a U.S. citizen; Karl either made a similar identification, refused to state his
citizenship, or did not know his citizenship. 29 The family and friends that Walter and Karl
identified as points of contact when arrested were all in Arizona. The brothers' cultural
identity was American throughout. It is thus implausible that two young men who showed
little sense of being German and who were totally disconnected from Germany would have
asked the Arizona officials responsible for their arrest or detention to notify the German
Consulate General in Los Angeles that they had been arrested.
Section III. The Memorial's Unjustified Claims About Consular Assistance
28. Nor does the Memorial credibly support its contention that a German consul would have
immediately assisted the LaGrand brothers or significantly aided their legal defense, had the
30
German Consulate General in Los Angeles been notified earlier. Reference to present-day
policies does not prove how German consuls performed their duties eighteen years ago. Part
V considers the limited and discretionary nature of a consul's role when a national is detained,
and shows how that role is often quite different from the idealized portrait presented in the
Memorial. Most importantly, consular officers cannot act as lawyers. The assistance they
provide to a defendant in a criminal proceeding is limited to assisting in obtaining legal
counsel and then assisting legal counsel -- if requested -- within the limits of the consular
officer's authorities and resources.
29. Germany has provided little support for its assertions that German consular officers would
have retained different defense lawyers, that they would have aided the LaGrands' defense
counsel in 1982-84 by seeking additional information about the brothers' early childhoods in
Germany, or even that German consular officials would have responded at all. To show what
a German consul might have done, the Memorial cites a 1993 memorandum of law filed by a
31
U.S. defense lawyer in a U.S. criminal proceeding. That memorandum contains several
careful references to what German consuls "could have" or "may have" done, not what they"would do" or "had done". These hedged speculations in a legal brief are not evidence. The
Memorial also cites the German Federal law on Consular Assistance and a current Circular
Order of the German Foreign Ministry describing the responsibilities of German consuls. 32
There is a suggestion that these current regulations continue past practices, but there is no
claim that they correspond to the regulations in force in 1982 or to the practices of the
German Consulate General in Los Angeles at that time. Nowhere is there any statement by
any informed German official familiar with German consular practice in Los Angeles in 1982.
30. The actions of the German Consulate33eneral in Los Angeles when it ultimately learned
of the LaGrand brothers in June 1992 may offer a more realistic indication of consular
practice. The Consulate General's response suggests that German authorities had doubts about
whether the brothers were German nationals at all, or whether urgent consular assistance to
them -- or perhaps any assistance -- was appropriate. Clearly, the Consulate General did not
rush to assist the brothers. Apparently, two other Germans in prison with the LaGrands were
receiving consular visits and prompted a contact between the brothers and the Consulate
General in June 1992. The Memorial states that the German Consulate General thereafter
"[i]mmediately ... engaged in a careful and comprehensive inquiry into the nationality status
of the two brothers." That inquiry was indeed "careful and comprehensive" -- indeed, it
appears to have been slow, deliberate, and even skeptical. Not until November 1992 did a
German consular officer write to the U.S. Immigration and Naturalization Service for
information about the LaGrands' immigration status in the United States. Only on 8 December
1992 did a German consular officer visit the LaGrands. 35The LaGrands' German nationality
was not officially documented by Germany until 15 March 1993. 36
31. The German Consulate General's slow and cautious response conflicts with Germany's
assertions that its consuls would have sprung immediately into action in 1982, had they
learned that two native English-speakers long resident in the United States, but who claimed
to be German, faced charges for a murder in a small Arizona town. It seems particularly
doubtful that consular officials would have responded quickly because the brothers had no
documentation at hand to prove that they were German nationals. They had no German
passport or identification card, having been included in their mother's long-since-expired
German passport when they first came to the United States as small boys in 1967.
32. It is also important to remember that the LaGrands' defense was at all times the
responsibility of their defense attorneys. Just as Germany's compilation of information from
Germany about the LaGrands after 1992 was at the behest of the lawyers then assisting them,
the LaGrands' defense lawyers in 1982-1984 would have decided what requests for assistance
to make to a consular officer. There is no indication that Walter or Karl LaGrand's defense
lawyers in 1982-1984 would have asked German consular officials to obtain additional
evidence about the brothers' lives in Germany. Both defense lawyers knew that the LaGrands
had been born in Germany, but apparently elected not to seek evidence about their early
childhoods there.
33. The German Memorial castigates the brothers' defense counsel, inter alia, because they
did not "raise or investigate mitigating circumstances linked to the upbringing of the brothers
in Germany under extremely difficult social conditions." 37 If the LaGrands' defense counsel
warrant the criticisms directed against them, then it is hardly likely that they would have
sought help from a German consular officer to obtain such evidence. However, it may well be
that the LaGrands' defense counsel simply did not think such evidence would add much
strength to the brothers' defense.34. It was not unreasonable for the LaGrands' trial counsel not to seek additional information
from Germany. Information about the brothers' early years was available from Walter and
Karl LaGrand themselves and from their sister, and was reflected in pre-sentence materials
prepared for the sentencing judge. Moreover, by 1984, when the brothers were sentenced,
their early years in Germany were remote and relatively less significant than the seventeen
years since they left Germany. Those seventeen troubled years were well documented. Thus,
ample mitigation evidence about the LaGrands' dysfunctional childhoods, including their
early years in Germany, was provided to the Court. Defense counsel did not need to reach for
additional documentation from Germany relating to the time years before when the brothers
were five and three years old.
35. German consular officials' actions after they finally began to assist the LaGrand brothers
also conflict with Germany's claims. Germany explains its last-minute filing by arguing that
German officials only learned at a clemency hearing on 23 February 1999 that Arizona
authorities knew of the LaGrands' German nationality long before. We believe this stems
from a reference made by an attorney for Arizona at the clemency hearing to the brothers'
1984 pre-sentence reports, official court documents crucial to understanding the sentences
imposed. The 1984 reports were available to German officials and are the second exhibit to
Germany's Memorial. If they were not reviewed by German consular officials after they
learned of the case in 1992, then those officials clearly did not see their role to include
evaluating the evidence considered at sentencing. This directly conflicts with Germany's
claims that a German consular officer in 1982-1984 would have worked to evaluate and
supplement the evidence presented to the judge regarding the LaGrands' troubled early
childhoods.
36. If German consuls never requested or read the 1984 pre-sentence reports, claims of their
diligence and effective assistance are unpersuasive. But if German consuls did review them,
Germany knew long before the last-minute filing of this case that some Arizona officials had
learned of the LaGrands' German nationality during the 1980s.
Section IV. The Memorial's Exaggerated Claims About the Potential Impact of
Mitigation Evidence
37. The Court should also reject the Memorial's supposition that Germany would have located
mitigation evidence that surely would have persuaded the sentencing judge to be lenient. The
Memorial makes such claims many times,with varying degrees of assurance, 40 often echoing
arguments made to and rejected by United States courts. Yet, as Germany's Memorial
acknowledges, the brothers' lawyers did ask the sentencing judge to consider in mitigation
41
Walter and Karl's grim and dysfunctional family background. Their deprived and unsettled
childhood was described in the pre-sentence reports and in testimony by the two defense
expert witnesses and of the brothers' sister at the pre-sentence hearing. The pre-sentence
reports included a great deal of information, and concluded that, in mitigation, the judge could
consider the fact that the LaGrands' actions "may have partially resulted from a poor home
42
environment, lack of family stability, broken home, poverty, and/or a lack of education."
38. The reports offered significant information about the LaGrands' troubled childhoods,
including the periods of their early childhood spent in Germany. For example, the pre-
sentence report for Walter LaGrand attaches a more detailed earlier report dated 4 December
1980, which contains, inter alia, the following information:The defendant [Walter LaGrand] was second of three illegitimate children born of different
fathers while his mother lived in Augsburg, Germany. He reports that his father was Puerto
Rican and had left without marrying his mother before the defendant was born. He reports
that his mother placed the children in a convent when they were very young, as she was
unable to take care of them because she was required to work to support the family. She
eventually married a Black American soldier, who adopted her three children, at which time
the defendant's mother retrieved the children from the convent to live with her and her
husband."
(This attachment is contained in the Arizona court's file; we do not know if it was included
with the report as obtained by German consular officials. It is reproduced at U.S. Exhibit 6.)
One of the psychiatrists who testified in the sentencing phase also noted that the boys' early
lives in Germany had been especially difficult. 43
39. Thus, the sentencing judge had information about the LaGrands' first five and three-and-a-
half years of life in Germany, and additional evidence about those few years in Germany
would have been cumulative. Defense counsel and the judge also had available extensive
information of similar character about the brothers' troubled family lives during the much
longer period after they moved to the United States. No evidence about the LaGrands' early
years in Germany was as significant as this chronicle of their subsequent experiences over the
seventeen years between leaving Germany and being sentenced in 1984.
40. There is no doubt that the Judge Hannah considered the mitigating circumstances
presented to him. He stated that:
I've also considered in mitigation their unhappy and disruptive childhoods and family lives,
lack of a male role-model, their expressed remorse ... and I have considered the psychological
and psychiatric evidence offered on their behalf and the other evidence that was presented at
the mitigation hearing, both documentary and oral. 44
Whatever mitigating evidence Germany might have added at the sentencing stage would not
have portrayed a fundamentally different picture.
41. The Memorial correctly points out that, under Arizona law, a difficult childhood or family
history can be mitigating, but it also acknowledges that Arizona law also requires a causal
connection between the upbringing and the murder. 45The Memorial offers only speculation
that the LaGrands' early experiences in Germany had some special causal connection to the
murder, or were more relevant to the murder than the subsequent fifteen years after they left
Germany. Arizona has identified numerous cases in which such mitigation evidence was
offered but was not shown to have been linked to the criminal behavior. 46
42. More importantly, Arizona law requires that mitigation evidence be balanced by the court
against evidence that the crime was "aggravated" and that the brothers would continue to be a
danger to society. Such evidence included the graphic and deeply disturbing testimony of
Dawn Lopez, who witnessed the murder of the bank manager and was herself stabbed
repeatedly. If it chooses to review the videotapes provided to the Court by Germany, the
Court will see that even seventeen years later, at the hearings of the Arizona Board of
Executive Clemency, Dawn Lopez' horror at the memory of her experience was
undiminished. The evidence in support of capital punishment also included evidence of prior
violent behavior by both brothers. The sentencing judge also found other aggravatingcircumstances, including that the murder was committed "in the expectation of the receipt of
something of monetary value," and that it was committed
in an especially heinous, cruel or depraved manner, stabbing a helpless, defenseless man 26
times, inflicting gratuitous violence on that victim after threatening his life several times
while he was a helpless captive and kept uncertain as to his fate.47
The judge48oncluded that "the murder was senseless and the manner of causing death was
savage."
43. It is extremely doubtful that any further evidence about the boys' early childhood that
might have been added in 1984 would have changed the judge's finding that there were "no
mitigating circumstances sufficient to call for leniency or to outweigh the aggravating
factors." Given the information already available to the judge, and the significant
aggravating circumstances he identified, the claim that some additional evidence about the
brothers' early childhoods would have changed the balance is simply not persuasive.
44. Arizona officials have indicated that imposition of capital punishment was consistent with
the outcome in other cases in which similar aggravating and mitigating circumstances were
present, and have identified other similar murder cases in which the defendant was also
sentenced to capital punishment. In the same vein, Detective Weaver Barkman, who
investigated the murder and received Karl LaGrand's confession, has recently confirmed that
imposition of capital punishment in this case seemed appropriate to him at the time.
Germany's Memorial emphasizes Mr. Barkman's supposed doubts about the LaGrand
brothers' sentences, based on the affidavit of a U.S. Federal Public Defender. 50Mr. Barkman,
however, denies the accuracy of the comments attributed to him in that affidavit. Instead, in a
recent Declaration, he has stated that at the time he was not opposed to or disturbed by the
sentences imposed. 51
45. Thus, the Court should not accept the Memorial's central suppositions that the LaGrands
would have requested consular assistance from a country with which they had little
connection; that, if contacted, German consuls in 1982-84 would have significantly assisted
their defense attorneys; and that any assistance that German consuls might have provided
would have persuaded the judge not to pass sentence as he did. Germany, which has the
burden of establishing the facts underlying its arguments, offers little but supposition to
support these claims. Matters such as the LaGrand brothers' lack of connection with Germany,
the cautious conduct of German consuls in 1992, and the extensive evidence about the
brothers' past lives already available to the Arizona court when the LaGrands were sentenced,
shows that Germany's suppositions are not persuasive.
PART III
ADMISSIBILITY
CHAPTER I - INTRODUCTION
46. Germany's final submissions 52 call for four forms of relief against the United States.
Briefly stated, Germany asks the Court to declare or order that:
(1) the United States violated Article 36(1)(b) of the Convention and related legal obligations;(2) certain rules of U.S. domestic law, particularly the doctrine of procedural default, violate
Article 36(2) of the Convention;
(3) the United States violated international legal obligations related to the Court's Order of 3
March 1999; and
(4) the United States must provide Germany a guarantee against recurrence.
Jurisdiction as to all four claims is asserted to exist under Article I of the Optional Protocol to
the Vienna Convention, 53 to which both Germany and the United States are parties.
47. The United States acknowledges that there was a breach of the U.S. obligation under
Article 36(1)(b) of the Convention promptly to inform the LaGrand brothers that they could
ask that a German consular post be notified of their arrest and detention. The United States
has apologized to Germany for this breach, and is taking extensive measures seeking to avoid
any recurrence. In relation to Germany's first submission, the United States does not contest
the Court's jurisdiction under the Optional Protocol to enter a judgment regarding this
acknowledged breach of Article 36(1)(b).
48. Without prejudice to its position in any further proceedings in this case, or in any future
cases where jurisdiction is claimed to exist under the Optional Protocol, the United States will
not here address the Court's jurisdiction to entertain Germany's remaining claims. Instead, for
the reasons set out in this Part, the United States urges that the Court hold those remaining
claims to be inadmissible.
CHAPTER II
GERMANY'S OTHER CLAIMS ARE INADMISSIBLE
49. Admissibility requires the Court to weigh whether characteristics of the case before it, or
special circumstances related to particular claims, may render either the entire case or
particular claims inappropriate for further consideration and decision by the Court. Assessing
admissibility involves careful analysis of the particular characteristics of cases and claims, the
positions of the parties, the role and responsibilities of the Court in the international system,
and the application of the Statute and Rules of Court. In the circumstances here, significant
factors weigh against admitting the claims that underlie Germany's second, third, and fourth
submissions.
Section I. The Court Need Only Address Germany's First Submission
in Order to Do Justice Between the Parties
50. The United States does not contest Germany's basic claim of a breach of the notification
obligation under Article 36(1)(b) of the Vienna Convention, and has expressed its regret that
there was such a breach in the cases of Karl and Walter LaGrand. Extensive remedial actions
are being taken in order to reduce the chances of recurrence. In these circumstances, the Court
can render a judgment recording the breach of Article 36(1)(b), the apology of the United
States, and noting that appropriate remedial measures are being taken. Such a judgment would
resolve and do justice as to the central dispute between the Parties and affirm the importance
of the Vienna Convention in international relations. The Court need not conduct the additional
proceedings required to hear and decide Germany's remaining claims in order to discharge itsrole appropriately. (In any case, as the following Parts show, Germany's remaining claims are
deeply flawed on their merits.)
Section II. Germany's Remaining Claims Are Inadmissible Because Germany Asks the
Court to Assume an Inappropriate and Unauthorized Role as the Overseer of U.S.
National Courts
51. The claims underlying Germany's second, third, and fourth submissions are inadmissible
because Germany seeks through those claims to have the Court play the role of ultimate court
of appeal in national criminal proceedings. Many of the Memorial's arguments, particularly
regarding the rule of procedural default, but as to other issues as well, ask this Court to
substitute its judgment for considered decisions of national courts in criminal cases. This
would improperly transform and expand the Court's role, making it the overseer of national
judicial systems in criminal cases.
52. Both in its Order of 9 April 1998 in Paraguay v. United States, and again in its Order of 3
March 1999 in this case, the Court properly observed that:
[T]he 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
54
not to act as a court of criminal appeal.
Germany's Memorial, however, asks the Court to address and correct not only claims under
international law but asserted violations of U.S. law and errors of judgment by U.S. judges.
The Memorial's lengthy discussions of U.S. domestic law are replete with invitations for the
Court to take corrective action because U.S. courts have not applied U.S. law "correctly." A
sample passage argues that:
[A]n analysis of United States law and jurisprudence convincingly shows that Art. 36(1)
constitutes an individual right both under the domestic law of the United States and according
to the interpretations of the Vienna C55vention by U.S. courts. Regrettably the U.S. courts
have not applied these holdings ... .
In the same vein, the Memorial asks the Court in effect to overrule the judgments of U.S.
56
courts regarding the adequacy of the LaGrand brothers' legal representation.
53. Germany aims particularly harsh criticism at the decisions of United States courts to
decline appellate or habeas corpus review of claims not initially made at trial (the doctrine of
procedural default). 57In a heated passage, the Memorial contends that U.S. courts (including
the Supreme Court of the United States) acted in a "wholly inappropriate" manner when they:
chose to apply in a persistent and rigorous manner certain rules of U.S. domestic law, in
particular the rule of "procedural default", whose effect was that no remedy was available to
the LaGrand brothers ... . It was this deplorable attitude in disregard of the United States'
obligations under the Vienna Convention, despite the obviousness of the violations committed
and sustained over a long period, which eventually barred any relief and led to the execution
of Walter and Karl LaGrand. 58
59
54. Although the Memorial denies the intention to do so, the texture of its arguments, as
well as passages like those quoted above, show that the Court is being asked to sit as aninternational court of criminal appeal, and to set aside both criminal court judgments and the
operation of rules of criminal procedure. This is a role this Court is not empowered or
constituted to perform. The Court should decline to adopt it by deciding Germany's remaining
claims.
Section III. The Circumstances and Timing Chosen by Germany for Filing its Case
Render Germany's Third Submission Inadmissible
55. The two previous objections to admissibility relate to the second, third, and fourth
submissions in Germany's Memorial. There are further compelling reasons why the Court
should find inadmissible Germany's third submission, concerning the Court's Order of 3
March 1999. These follow from the extraordinary manner in which Germany chose to bring
this case. By acting as it did, Germany created a situation that was highly unreasonable and
prejudicial, both to the United States and to the proper administration of justice. These
circumstances render further proceedings to address Germany's claims regarding the Order of
3 March inappropriate.
56. Germany's choice of timing precluded both proper proceedings in the Court and a
considered response by the United States to any order the Court might issue. The case did not
have to proceed this way. The Memorial shows that German officials learned of Walter and
60
Karl LaGrand in June 1992. During the ensuing six-and-a-half years, Germany did not
express concern about the brothers' cases or protest their treatment to the Department of State
or other U.S. Federal authorities. The cases were first raised with the Department of State on
27 January 1999, but then in the form of an appeal to the Secretary of State against the
application of capital punishment. 61The cases' consular notification aspect was not raised
with the De62rtment of State until 22 February 1999, two days before Karl LaGrand's
execution.
57. Germany then chose to file its skillfully prepared Application and Request for the
Indication of Provisional Measures in The Hague after normal business hours at 7:30 PM on 2
March 1999, a little over 27 hours before the scheduled execution. Germany's decision to
file at this extraordinarily late stage made it impossible for the Court to respond as Germany
requested, except by acting ex parte and without allowing the Respondent State to be heard.
Germany's choices thus precipitated a profound and unsettling change from the previously
uniform practice of the Court. Even in cases involving the gravest allegations of ongoing
genocide, armed attacks, or other matters threatening immediate and widespread loss of life,
the Court has never been placed in a situation where it felt constrained to act in less than 24
hours and without hearing the Respondent.
58. Germany is correct that there is no uniform "statute of limitations" in international law,
nor are there clear requirements dictating when a case must be filed with this Court. Some
international controversies do linger for years before they are brought to the Court.
Nevertheless, the Court should not, through continued proceedings on Germany's third
submission, sanction the mode of proceedings brought about by the Applicant's choices.
Those choices resulted in the Court having to act without full information, without a hearing
and full deliberation, and without regard to the normal requirements to treat parties with
equality and to accord each the opportunity to be heard. Finding Germany's claims involving
the Court's 3 March Order admissible can only establish such last-minute filings as an
acceptable pattern for proceedings in this Court.59. Perhaps recognizing the inappropriate position in which it placed the Court, the Memorial
adopts a somewhat defensive tone regarding the timing of the 2 March filing. It argues that
neither international law nor good faith required Germany to consult with the United States
64
concerning its plan to bring this case. It also contends that the late filing was justified by
Germany's discovery at the 23 February clemency hearing that Arizona had supposedly acted
in bad faith. Germany contends that Arizona authorities long knew that the LaGrand
brothers were German nationals, but had wrongly concealed their knowledge until it was
accidentally revealed by a prosecutor at the clemency hearing. 66
60. As discussed in Part II, it is odd that German officials had not long before read the pre-
sentence reports referred to at the 23 February hearing. They were the key documents
considered at the 1984 sentencing proceedings. They were available to the LaGrands' lawyers
and to German officials, and are among the exhibits to Germany's Memorial. It is hard to
understand how these reports were not already familiar to German consular officers,
particularly in light of Germany's sweeping claims regarding the vigor and effectiveness of its
consular assistance.
61. Germany's plea that it was ignorant of the facts until 23 February 1999 should not be
accepted as justification for its last-minute filing for another reason as well. Although it had
years to do so, Germany never raised the consular notification issue with the U.S. Department
of State so that the facts could be investigated. The practice of investigating complaints of
possible failures of consular notification is well established under the Vienna Convention, and
is routinely followed by both Germany and the United States, as shown in Part V below. As
early as 1992, German officials could have asked the Department of State to investigate the
possible violation of Article 36 of the Vienna Convention, including when the LaGrands'
German nationality was known to the competent authorities. Indeed, as noted above, the
Department of State in 1998 expressly invited all Embassies in Washington to bring possible
failures of consular notification to its attention, so that it could investigate and take any
appropriate action.
62. Had Germany raised its concerns in a reasonable and timely way, there would have been
time for U.S. authorities to carry out a thorough investigation of the facts. Through the
investigation conducted in 1999-2000, after Germany finally raised the matter, the
Department of State determined that Arizona officials who were "competent authorities" for
purposes of the Convention had information about the LaGrands' German nationality
sometime between mid-1983 and the end of 1984. The Department regrets the evident
misunderstanding between Arizona and German officials about when this information about
the LaGrands' nationality was available, and to whom. Whatever the reasons for that
misunderstanding, it would have been avoided had German officials brought the LaGrand
case to the attention of appropriate U.S. federal officials promptly.
63. Germany's decision to file as it did resulted in the Court setting aside some fundamental
aspects of judicial procedure. Previously, the Court articulated and operated on the twin
68
principles of "equality of the Parties" and of giving each party sufficient opportunity to be
heard. In the circumstances following Germany's last-minute filing, neither principle could be
observed.
64. In its advisory opinion concerning the Application for Review of Judgement No. 158 of the
69
United Nations Administrative Tribunal, the Court identified both of these principles as
necessary to avoid a "failure of justice." The Court stressedthe fundamental right of a staff member to present his case, either orally or in writing, and to
have it considered by the Tribunal before it determines his rights. An error in procedure is
fundamental and constitutes "a failure of justice" when it is of such a kind as to violate the
70
official's right to a fair hearing as above defined and in that sense to deprive him of justice.
The Court continued:
[C]ertain elements of the right to a fair hearing are well recognized and provide criteria
helpful in identifying fundamental errors in procedure which have occasioned a failure of
justice: for instance, ... the right to a reasonable opportunity to present the case to the tribunal
and to comment upon the opponent's case; [and] the right to equality in the proceedings ... .1
65. The Court affirmed these principles in its 7282 Advisory Opinion on Judgement No. 273
of the United Nations Administrative Tribunal. The Court again emphasized the central
importance both of treating the parties with equality and of ensuring to both the opportunity to
present their views, recalling:
the principle which, in its 1973 Advisory Opinion, it regarded as a requirement of the judicial
process: the principle of equality of the parties. In that Opinion the Court emphasized various
applications of the principle; it referred to it first with regard to the decision by the Committee
"after an examination of the opposing views of the interested parties." (footnote omitted)3
66. Yet, because of Germany's decision to file its case at the last minute, these basic principles
of the judicial process could not be observed in relation to the Court's 3 March Order.
Germany would now compound this departure from precedent and sound practice by asking
the Court to address a claim against the United States wholly predicated upon that Order. It is
not appropriate for the Court to continue proceedings based on such a claim. The Court
should find it inadmissible.
PART IV
THE CLAIMED VIOLATIONS OF THE VIENNA CONVENTION
CHAPTER I - INTRODUCTION
67. As we have emphasized, the United States acknowledges and regrets that there was a
violation of the U.S. obligation under Article 36(1)(b) promptly to inform Walter and Karl
LaGrand that German consular officials could be notified of their arrest and detention.
Accordingly, the United States does not contest Germany's claim that there was a breach of
that provision. The United States has already extended an apology for this breach, and has
taken and continues to take extensive steps to prevent any recurrence. However, the United
States contests the legal validity of Germany's other claims related to the failure of consular
notification.
CHAPTER II
GERMANY'S CLAIMS OF OTHER VIOLATIONS OF ARTICLE 36
68. Germany claims that the failure to inform the LaGrand brothers of their right to have
Germany's Consulate General notified of their arrest and detention -- a failure thatunquestionably contravened Article 36(1)(b) -- also violated several other provisions of the
Vienna Convention. 74The Memorial claims that the United States violated, inter alia:
-- Germany's right to communicate with its nationals under Article 36 (1)(a);
-- The second sentence of Article 36(1)(a), with regard to the rights of detained persons to
communicate with consular officers; and
-- Germany's right to visit and assist detained nationals under Article 36 (1)(c).
69. In each case, however, it is clear that the underlying conduct complained of is the same --
the failure to inform the LaGrand brothers as required by Article 36(1)(b). There is no other
basis for contending that German consular officers could not have communicated freely with
the LaGrands, that the LaGrands could not have communicated freely with those officers, or
that German consular officers were not free to visit and assist the LaGrands at all times after
their arrest. Germany's complaint is simply that the LaGrands were not given information that
might have prompted them to take steps to initiate such communications and visits.
70. Germany's claims under Articles 36(1)(a) and (c) seem particularly misplaced, given that
German consular officials and the LaGrands communicated freely after German consular
officials learned of the LaGrands' case in 1992. At that time, they already were providing
consular assistance to two other German nationals in the Arizona prison. Thus, it is clear that
Germany's access to German nationals in Arizona's prisons, as such, was not impeded. Nor
does Germany allege or offer any evidence that Arizona interfered in any way with the
LaGrands' access to consular officials when they initially sought to communicate in 1992. Nor
does the Memorial claim that Arizona thereafter impeded German consuls' access to the
brothers after their German nationality was clarified and German consular officers began to
visit them.
71. Indeed, German consular officers visited the LaGrands a number of times beginning in
December 1992. Karl was visited at least eight times, and Walter somewhat less, having
refused consular visits on at least two occasions. There is no evidence that the frequency of
German consular visits was in any way limited by Arizona. Nor is there any evidence that
Arizona refused to forward correspondence between German consular officers and the
LaGrand brothers. In fact, the LaGrands at all times were free to communicate with German
consular officials.
72. In addition, each of these additional claims again rests upon unverifiable factual
assumptions about what might have happened. Each assumes that, had the LaGrand brothers
been told in 1982 that the Los Angeles German Consulate General could be notified of their
arrest, they would have requested such notification and that vigorous and effective consular
assistance inevitably would have followed. As discussed in Part II, this is speculation, not
proof. It is an insufficient foundation for Germany's string of additional claims.
CHAPTER III
GERMANY'S CLAIM OF INTERFERENCE WITH RIGHTS OF DIPLOMATIC
PROTECTION IS OUTSIDE THE COURT'S JURISDICTION AND DEFECTIVE ON
THE MERITS73. Germany also claims that, because the LaGrand brothers were not informed of the
possibility of consular notification, Germany suffered additional legal injury by being denied
its right to provide diplomatic protection in respect of individual legal injuries suffered by the
76
brothers. This claim is linked with an extensive legal argument to the effect that consular
notification under Article 36 is an individual right that must be enforceable in the criminal
justice system.77
74. Like Germany's "add-on" claims of consequential violations of additional parts of Article
36 stemming from the failure to inform the LaGrands as required under Article 36(1)(b), it is
not apparent what this additional claim contributes to the case. The United States
acknowledges and regrets that there was a failure to inform the LaGrand brothers that they
could request consular notification. Germany's objective seems to be to wrap that failing in as
many overlapping characterizations of consequential illegality as possible. This does not add
either to the dignity or the clarity of these proceedings, and does not assist either the Parties or
the Court.
75. In any case, to the extent that this claim by Germany is based on the general law of
diplomatic protection, it is not within the Court's jurisdiction. The claim does not concern the
interpretation or application of the Vienna Convention, and accordingly is not within the
jurisdiction of the Court based on the Optional Protocol to the Vienna Convention.
PART V
THE ISSUE OF PROCEDURAL DEFAULT
76. Germany makes the additional argument that the United States violated the Vienna
Convention by applying a rule of "procedural default" to the LaGrands' claims in U.S.
criminal proceedings based on the violation of Article 31(1)(b). Procedural default rules as
applied in the United States generally mean that U.S. domestic courts will not consider claims
that have not been raised before the first court capable of adjudicating them. Germany argues
that such rules cannot be applied to claims of violations of Article 36 of the Vienna
Convention, principally on the ground that the proviso of Article 36(2) requires that violations
of the consular notification requirements of Article 36(1) be remedied through the criminal
78
justice systems of States party. Germany also contends that Article 36 itself establishes an
individual right, and that the existence and violation of this individual right requires a remedy
in the criminal justice process. The first of these arguments is plainly wrong. To the extent
that the second differs from the first (which for us is a matter of some ambiguity), Germany's
arguments do not in any way compel the conclusion that Article 36 requires the establishment
of remedies for individual criminal defendants in the criminal justice process. In particular,
they do not require the invalidation of convictions or sentences.
77. The heart of Germany's position is the belief that the Vienna Convention requires the
United States and presumably all other Parties to the Convention to amend their internal law
80
to ensure the "reversal of judgments ... infected by a lack of consular advice." This sweeping
argument rests on a fundamentally incorrect view of what the Vienna Convention requires.
Germany's position goes far beyond the wording of the Convention, the intentions of the
parties when it was negotiated, and the practice of States, including Germany's practice. The
Vienna Convention does not require States Party to create a national law remedy permitting
individuals to assert claims involving the Convention in criminal proceedings. If there is nosuch requirement, it cannot violate the Convention to require that efforts to assert such claims
be presented to the first court capable of adjudicating them.
CHAPTER I
THE PROVISO OF ARTICLE 36(2) DOES NOT REQUIRE REMEDIES IN THE
CRIMINAL JUSTICE PROCESS
78. Germany's argument rests principally on a novel reading of Article 36(2), which contains
a proviso that the laws and regulations of States Party must "enable full effect to be given to
the purposes for which the rights accorded under this article are intended." Germany would
read this proviso as a broad prohibition on any domestic law rule that prevents raising at any
stage in a criminal appeal a claimed violation of the obligation to inform a foreign national
defendant that his consular officials may, if he wishes, be notified of his arrest. The proviso
of Article 36(2) cannot be given such an artificial scope.
79. The proviso must first be read in context, in light of the immediately preceding language
and of the overall structure and focus of Article 36. Article 36(2) provides as follows:
2. The rights referred to in paragraph 1 of this Article [of consular officers and their nationals
to communicate, the rights of nationals to have consular officials notified of an arrest or
detention, and the rights of consular officers to visit detainees and provide consular
assistance] shall be exercised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and regulations must enable full
effect to be given to the purposes for which the rights accorded under this Article are
intended.
In the context of a foreign national in detention, the relevant laws and regulations
contemplated by Article 36(2) are those that may affect the exercise of specific rights under
Article 36(1), such as those addressing the timing of communications, visiting hours, and
security in a detention facility. There is no suggestion in the text of Article 36(2) that the rules
of criminal law and procedure under which a defendant would be tried or have his conviction
and sentence reviewed by appellate courts are also within the scope of this provision.
80. The travaux also make the narrow focus of Article 36(2) clear. The International Law
Commission's ("ILC") original proposal for Article 36 included a similar provision, which the
ILC explained in terms that focused on the mechanics of prison visits:
Thus, visits to persons in custody or imprisoned are permissible in conformity with provisions
of the code of criminal procedure and prison regulations. As a general rule, ... codes of
criminal procedure require the permission of the examining magistrate, who will decide in
light of the requirements of the investigation. In such a case, the consular official must apply
to the examining magistrate for permission. In the case of a person imprisoned in pursuance
of a judgement, the prison regulations governing visits to inmates apply also to any visits
which the consular official may wish to make to a prisoner who is a national of the sending
State.82
This emphasis on prison visitation rules continued in the meetings of the Second Committee83
of the United Nations Conference on Consular Relations as it considered Article 36(2). For
example, the delegate from the United Kingdom, in arguing that the ILC's proviso gave toomuch scope to national regulations, focused specifically on regulations pertaining to prison
visits and the delivery of items to prisoners. The concern of this and other delegates who
pushed, ultimately successfully, for modification of the ILC's proviso was that restrictions on
consular visits not be so severe that such visits could not be effective. There is no suggestion
whatever that any State Party thought that the proviso in Article 36(2) in any way required
remedies in the criminal justice process for failures to inform detained foreign nationals that
they could request consular assistance, or that the proviso would prevent States Party from
applying equally to foreign nationals and to their own nationals rules requiring the orderly and
timely assertion of defenses in criminal cases.
81. During the plenary session, statements by other delegates directly raised the question of
the relationship between State criminal laws and the proviso. The delegates from the Union of
Soviet Socialist Republics and Belarus strongly preferred the ILC version of the proviso over
the alternative ultimately adopted. In describing their concerns about how the proviso
balanced the laws of the receiving State with the rights of consular officials, the delegate from
the Union of Soviet Socialist Republics stressed that
the matters dealt with in Article 36 were connected with the criminal law and procedure of the
receiving State, which were outside the scope for the codification of consular law. 85
The delegate from Belarus spoke in similar terms:
the Conference was drafting a consular convention, not an international penal code, and it had
no right to attempt to dictate the penal codes of sovereign States.86
While these statements were made in support of the ILC proposal which was not adopted,
they nevertheless reflect a publicly stated understanding of the negotiators with respect to the
implications of the requirements they were addressing. They are perhaps the most direct
references made during the negotiating session to the criminal justice systems of receiving
States. Thus, it is significant that neither these statements nor any others elicited any
responsive statement expressing the expectation that criminal proceedings would be held in
abeyance for consular notification to be completed, or that the results of a criminal justice
process would be subject to challenge if notification inadvertently was not given. Thus, the
negotiating history does not support Germany's broad reading of the proviso to Article 36(2).
CHAPTER II
ARTICLE 36 AS A WHOLE ALSO DOES NOT SUPPORT GERMANY'S CLAIM
82. The text and negotiating history of Article 36(1) also do not support Germany's claim that
failure of consular notification requires individual remedies in the criminal justice system.
Indeed, all indications in the text and negotiating history suggest that States Party would
regard such a reading as a significant alteration of what they agreed to in the Vienna
Convention.
Section I. The Text of Article 36(1) Does Not Require a Remedy in the Criminal Justice
Process
83. Article 36(1) has three subparts that were painstakingly negotiated by the United Nations
Conference on Consular Relations in a series of difficult sessions of the Second Committeeand the Plenary Session. The initial vote to adopt Article 36 in the Plenary Session failed,
and the article was reconsidered and adopted only after the last-minute addition of the final
88
sentence of Article 36(1)(b), which was proposed as a compromise by the United Kingdom.
As a result of this compromise, Article 36(1)(b) reflects two separate notification obligations:
the obligation to notify consular officials if the detainee so requests, and the further
obligation, stated in the final compromise sentence, to inform the detained foreign national of
the option to have consular officials notified. As previously shown in Part IV, this case
properly relates only to the obligation to inf89m the foreign national of the option to have
consular officials notified of the detention.
84. Significantly, nothing in Article 36 relates these notification obligations to the criminal
justice process. Article 36 provides that both notification obligations must be carried out
"without delay," but does 90t define this term or relate it to any particular event in the
criminal justice process. Nor does Article 36 specify the manner in which consular officials
must be notified, leaving it open to States party to use a variety of methods, including ones
that result in notification occurring after critical events in a criminal investigation have
91
occurred.
85. Article 36 also does not establish a role for the consular officer in the foreign national's
defense in criminal proceedings. Thus, while Article 36(1)(c) establishes that consular
officials must be permitted to visit detained nationals, to converse and correspond with them,
and to arrange for their legal representation, detained persons need not accept such assistance.
A consular officer must refrain from taking any action on behalf of a detainee that the
detainee opposes. 92
86. Moreover, neither Article 36, nor any other provision in the Vienna Convention, obligates
consular officials to provide any measure of substantive consular assistance in any criminal
case, whatever the charges or the potential penalty. Article 36 provides for the notification of
consular authorities at the request of a detained person, but does not confer on the detained
individual a substantive right to compel consular assistance.
87. Thus, the language and structure of Article 36(1) do not support any claim that the
receiving State must hold its criminal justice process in abeyance pending the provision of
consular services. Because Article 36(1) does not link the justice process to consular
notification, it cannot be read to require that receiving States provide remedies in the criminal
justice process if Article 36(1) is not fully observed.
Section II. The Negotiating History of Article 36(1) Contradicts Germany's Claim
88. The negotiating history also conflicts with Germany's claim that Article 36 requires the
creation of remedies as part of the criminal justice process. As noted earlier, the Vienna
Convention was negotiated on the basis of draft articles prepared by the International Law
Commission. The relevant ILC proposals did not require authorities to inform arrested
persons that their consul could be notified. This obligation was added at the Conference,
where Article 36 was negotiated with great difficulty; final agreement came only two days
before the Conference ended. Some delegations supported the ILC's initial draft of Article 36,
which would have required that receiving States automatically notify sending States' consuls
whenever a national was arrested. Many other States strongly opposed this. They argued,
among other things, that this requirement would impose an excessive practical burden on thereceiving State, particularly a receiving state with large numbers of immigrants, and that the
national might not want his government authorities to know about his arrest. 93
89. The debate on the ILC draft, on the numerous amendments offered to it, and on the final
amendments that ultimately became Article 36(1) gives no indication that the negotiating
States expected or intended failures of consular notification to invalidate subsequent legal
proceedings. Moreover, there was express discussion of the possibility that such failures
would occur, particularly if notification was required in every case. For example, in offering
an amendment to change the ILC's original proposal to state that the obligation to inform the
sending State only arises if the national so requests, the delegate of Egypt explained his
amendment as follows:
The purpose of the amendment is to lessen the burden on the authorities of receiving States,
especially those which had large numbers of resident aliens or which received many tourists
and visitors. The language proposed in the joint amendment would ensure that the authorities
of the receiving State would not be blamed if, owing to the pressure of work or other 94
circumstances, there was a failure to report the arrest of a national of the sending State.
90. These and other statements in support of requiring notification only when requested by the
detainee, as was ultimately agreed, show that the Conference recognized that Article 36
presented practical problems of comp95ance that would be addressed through the normal
processes of diplomatic adjustment. Had the parties thought failures of consular notification
would require or result in the invalidation of subsequent criminal proceedings, the many
States that expressed fears about the burden of the notification requirement would surely have
rejected the text now before the Court. Thus, the negotiating history of Article 36 does not
support Germany's broad view of the consequences of non-compliance with Article 36.
CHAPTER III
STATE PRACTICE, INCLUDING GERMANY'S OWN PRACTICE,
CONFLICTS WITH GERMANY'S CLAIM
91. State practice, which is particularly instructive for such a widely accepted Convention,
also conflicts with Germany's claim. The U.S. Department of State has conducted an
extensive survey of State practice under the Vienna Convention in response to past
expressions of concern regarding U.S. consular notification practices, and has continued to
monitor State practice under the Convention carefully. These efforts are described in the
Declaration of a senior State Department consular official, Edward Betancourt, on State
practice regarding consular notification and access at U.S. Exhibit 8. As indicated in that
declaration, States Party to the Vienna Convention throughout the world operate on the
understanding that a criminal proceeding against a foreign national can proceed regardless of
whether consular notification or assistance is provided.96
92. Indeed, Germany's Memorial does not claim that German courts would invalidate a
conviction or sentence when there has been a failure of consular notification. We question
whether Germany (or very many other Parties to the Convention) could make such a
representation. Germany's claim in this case that the Vienna Convention requires individual
remedies in the criminal justice system, including the invalidation of convictions,
fundamentally conflicts with the manner in which States, including Germany, actually
implement the Convention.93. As Mr. Betancourt describes, violations of Article 36 are common and States
characteristically deal with violations of consular notification obligations through diplomatic
means, not through judicial setting aside of convictions. When a consular officer learns of a
failure of notification, a diplomatic communication often is sent to protest the failure. Most
States accept responsibility to investigate alleged violations and, if necessary, to remind the
appropriate "competent authorities" of their responsibilities. If notification procedures are not
followed, it is also common for the host government to apologize and to undertake to ensure
improved future compliance.
94. This has been precisely the practice followed by Germany. For example, less than a month
after Germany commenced this suit, the German Foreign Ministry sent the United States
Embassy a note responding to the Embassy's complaint about a failure of consular notification
in the case of a U.S.97itizen arrested in Germany on August 26, 1997, and convicted on
December 16, 1997. The Ministry's note is accompanied by a letter from the Senator for
Justice and Constitutional Matters of Bremen, acknowledging the requirements of Article 36
and reporting the results of the official investigation into the failure to notify U.S. consular
officers. The letter acknowledges that the U.S. citizen may not have been informed of his
right to request notification, that the citizen apparently requested notification nonetheless, but
that the competent authorities -- in this case, prison officials -- forgot to notify U.S. consular
officials as requested. The letter apologizes for the error and advises of the steps taken to
avoid repetition. Neither the German note nor letter suggests that the conviction would in any
way be affected by the breach of Article 36. German officials similarly investigate98and
apologized in another case involving a protracted failure of notification in 1998.
CHAPTER IV
EVEN IF ARTICLE 36 IN SOME SENSE ESTABLISHES INDIVIDUAL RIGHTS,
THERE IS NO REQUIREMENT THAT THOSE RIGHTS BE JUSTICIABLE IN
NATIONAL CRIMINAL JUSTICE SYSTEMS
99
95. Germany also argues at length that Article 36 establishes an individual right. This
argument serves as the predicate for Germany's claim that the failure to inform the LaGrands,
as required by Article 36(1)(b), violated Germany's customary law right to exercise
diplomatic protection of its nationals.100Germany also appears to suggest, however, that a
violation of Article 36 must be remedied in national criminal justice systems because
individual rights are at issue.
96. As shown above, however, the Vienna Convention does not require States Party to remedy
violations of Article 36 through their criminal justice systems. This conclusion does not turn
101
on whether Article 36 in some sense incorporates or confers individual rights.
97. The rights of consular notification and access under the Vienna Convention in any event
are rights of States, not individuals. Clearly they can benefit individuals by permitting -- not
requiring -- States to offer them consular assistance, but the Convention's role is not to
articulate or confer individual rights. Rather, the Convention establishes a set of legal rules
regulating consular relations between States, including such matters as the establishment of
consular relations, the appointment of consular staff, and various exemptions from host State
regulation. The Preamble emphasizes the inter-State character of this system. 10298. In the limited areas where the Convention addresses relationships between States and
individuals, it does so to facilitate the performance of consular functions by States. Article 36
thus is entitled "Communication and contact with nationals of the sending State," and
emphasizes the ability of consular officers to communicate with their nationals. Indeed,
Article 36 is located in a section of the Convention pertaining expressly to the "Facilities,
Privileges And Immunities Relating To A Consular Post".
99. In two phrases, indisputably, Article 36 does express ideas in the vocabulary of "rights".
This vocabulary implements the compromise described above between those countries that
advocated notification to consular officials of all detentions and those who sought notification
only when specifically requested by the detainee. Had mandatory notification been adopted,
Article 36 would not have referred to the situation of the individual at all, and notification to
consular officials would have occurred regardless of the individual's wishes. 103
100. There was considerable discussion among the drafters of the Vienna Convention about
the appropriateness of referring at all to individual rights, focusing particularly on how Article
36(1)(a) should address the ability of the foreign national to communicate with a consular
official. As Germany has reviewed in its Memorial, 104 a number of delegates expressed the
view that the Convention should recognize the individual right of a foreign national to
communicate with his or her consular officials, but this was a matter of great controversy and
no clear consensus emerged. At a point during the negotiating sessions, when Article 36(1)(a)
referred to the right of the national to communicate with a consul and to the right of a consul
to communicate with a national, a delegate from Venezuela objected to any reference to an
individual right. He noted that the Conference was charged with negotiating a convention on
consular relations, and that it was inappropriate for the convention to speak of individual
rights.105The subsequent discussion elicited numerous perspectives, including the observation
that consular communications inherently involve the State, on the one hand, and the
individual, on the other. 106It also resulted in a reversal of the order of Article 36(1)(a), so that
it came to refer first to the right of the consul to communicate wit107he individual, and second
to the right of the individual to communication with the consul. That reversal underscores
the fundamental point, that the position of the individual under the Convention derives from
the right of the State party to the Convention, acting through its consular officer, to
communicate with its nationals. The treatment due to individuals is inextricably linked to and
derived from the right of the State. Indeed, during the negotiations, the United Kingdom
argued that the burden of a provision requiring notification in all cases could be managed by
States waiving their rights under the convention. 108This proposal surely would not have been
made if the delegates had thought they were creating rights of individuals independent of the
rights of States.
101. While the exact nature of the position of individuals under the Convention does not lend
itself to easy characterization, the relevant question here is only whether the Vienna
Convention requires States party to accord individual foreign nationals judicially enforceable
remedies in their criminal justice systems. The text of Article 36, its negotiating history, and
the practice of other States Party to the Convention all indicate that it does not.
102. In contrast, Germany's sweeping view, if accepted, could have broad repercussions not
only for this case, but also for each of the 163 parties to the Convention. To our knowledge,
adoption of this expansive view is being advocated primarily, if not solely, in the United
109
States, where two appellate courts have recently rejected it. So far as we are aware, in no
other country, including Germany, is serious consideration being given to providing the kindof expansive remedy under the Vienna Convention advocated by Germany. 110 The Court
should not read into a clear and nearly universal multilateral instrument such a substantial and
potentially disruptive additional obligation unsupported by the text and far beyond the
understandings and practice of the States party. There are few situations in which States
actually have agreed by treaty that the failure to observe specific standards can be the basis
for appeal to an international tribunal for possible reversal of a conviction or sentence. Where
States have elected to create such mechanisms, they have done so expressly and with great
precision.111They have not created such additional remedies indirectly or implicitly, as
Germany wrongly suggests was done through Article 36.
103. Accordingly, the proviso to Article 36(2) does not require that States authorize
individuals to attack their criminal convictions and sentences through individual criminal
proceedings. Neither does the text of Article 36 overall require such remedies, regardless of
whether it in some sense recognizes rights of individuals. If there is no obligation under the
Convention to create such individual remedies in criminal proceedings, the rule of procedural
default -- requiring that claims seeking such remedies be asserted at an appropriately early
stage -- cannot violate the Convention.
PART VI
THE COURT'S ORDER OF 3 MARCH 1999
104. Part III of the Counter-Memorial showed why the claims involved in Germany's second,
third, and fourth submissions are inadmissible. However, should the Court find Germany's
claims to be admissible, this Part shows that the United States has not violated any
international legal obligations related to the Court's 3 March 1999 Order indicating
provisional measures. Chapter I reviews the circumstances of the Court's Order. Chapter II
shows that the United States acted in conformity with the Order. Chapter III examines the
language of the Order, and shows that, by its terms, it did not create binding legal obligations.
Accordingly, the Court can resolve this claim by Germany on the bases set out in these three
sections, and need not confront the difficult and controversial general question of the status of
its indications of provisional measures under international law. Should the Court feel it
necessary to address the question, however, the fourth Chapter analyzes the effect of the
Court's Order under relevant provisions of the Court's Statute and the Charter of the United
Nations. It shows that the Order did not give rise to international legal obligations that were
violated by the United States.
CHAPTER I
THE CIRCUMSTANCES OF THE COURT'S ORDER AND ACTIONS
TAKEN IN RESPONSE
Section I. Germany's Filing and the Court's Order
105. Germany chose to file its Application and Request for the Indication of Provisional
Measures after the close of business at 19:30112in The Hague on the evening of 2 March,
approximately 27½ hours before the time set for the execution of Walter LaGrand. The
Registrar presumably informed the Members of the Court of the filing, and steps were taken
by the President of the Bench to ascertain judges' views on procedure and substance.106. Also that evening, the Registrar transmitted a copy of Germany's Application and
Request for the Indication of Provisional Measures to the United States Embassy in The
Hague by facsimile machine. The copy received at the Embassy is time-stamped "2 Mar. 1999
21:48 INTERNATIONAL COURT OF JUSTICE". The text was relayed to the Department of
State in Washington and was received there late in the afternoon of 2 March, sometime after
22:00 The Hague time/ 16:00 Washington time. The Application and Request for Provisional
Measures were then promptly transmitted by facsimile to the legal staff of the Governor of
Arizona.
107. In an unprecedented move, the Court then acted without giving the United States an
opportunity before the Order was issued to present its views regarding the merits of
Germany's request for provisional measures. In this regard, a representative from the United
States Embassy in The Hague was invited by the Vice-President to a meeting also attended by
Germany's Agent on the morning of 3 March. That meeting did not provide an opportunity for
substantive discussion. The views expressed by the U.S. representative were summarized in
the Court's Order of 3 March:
Whereas, on 3 March 1999, at 9:00 (The Hague time), the Vice-President of the Court
received the representatives of the Parties ... ; whereas ... , referring to the provisions of
Article 75 of the Rules of Court, [the representative of the German Government] asked the
Court to indicate forthwith, and without holding any hearing, provisional measures proprio
motu; and whereas the representative of the United States pointed out that the case had been
the subject of lengthy proceedings in the United States, that the request for provisional
measures submitted by Germany was made at a very late date and that the United States
would have strong objections to any procedure such as that proposed only that very morning
by the representative of Germany which would result in 113 Court making an Order proprio
motu without having first duly heard the two Parties.
Under the circumstances, a hurried meeting like that described in the Court's Order simply is
not an appropriate or sufficient opportunity for the United States or any other respondent in a
case in this Court to present its defense.
108. In explanation of the decision to act without a hearing, paragraph 21 of the Court's Order
indicates that the Court was acting -- for the first time -- pursuant to Article 75(1) of the Rules
of Court. Article 75(1) provides that:
The Court may at any time decide to examine proprio motu whether the circumstances of the
case require the indication of provisional measures which ought to be taken or complied with
by any or all of the parties.
However, it seems clear that the Court was not acting on its own initiative such that the
authority of Article 75(1) provided an appropriate basis for action. The terms of the Court's
Order quote Germany's Application, the Request for the Indication of Provisional Measures,
and even Germany's oral representations at length. The terms of the Order make clear that
Germany's requests, and not the Court's own initiative, were the predicate for the 3 March
Order.
109. Under Article 74 of the Rules of Court, any request for the indication of provisional
measures triggers the requirement that the Court arrange "a hearing which will afford the
parties an opportunity of being represented at it." In an earlier case under what would seem tobe more compelling circumstances, the Court declined to exercise its authority under Article
75 following a request for provisional measures. The Court recalled this decision in its Second
Order in the Bosnia Genocide case:
Whereas by a letter of 11 August 1993 in response to the letter of 4 August 1993 from the
Agent of Bosnia-Herzegovina ..., the Registrar ... reiterated the view of the Court ... that the
Court did not consider that the question arose of the exercise of its powers under Article 75,
paragraph 1, of the Rules of Court
"where, as in the present case specific requests for the indication of provisional measures ...
have been made by each of the Parties",
and that, in its view,
"those powers do not in any event extend to indicating measures without affording both
Parties the opportunity of being heard." 114
110. The Court's Order granting Germany's request for provisional measures was read at a
sitting the following evening, 3 March, beginning at 19:15 The Hague Time/13:15
Washington time. This was less than 24 hours after Germany filed its case and just under four
115
hours before the time set for the execution of Walter LaGrand. Following the reading, a
United States Embassy official in The Hague immediately telephoned the Office of the Legal
Adviser at the Department of State in Washington, D.C. and reported the substance of the
Order. The text was also transmitted to Washington by telefax, where it was received at about
14:30 Washington time.
111. Thus, the Court's Order arrived in Washington about two-and-a-half hours before the
time set for Walter LaGrand's execution. As indicated by the Order, the Acting Legal Adviser
of the Department of State promptly transmitted the Order to the Governor of the State of
Arizona by facsimile. The Legal Adviser (who was traveling in Thailand with the Secretary of
State) was awakened and informed of the Order's contents by telephone.
Section II. Germany's Case in the U.S. Supreme Court
112. At about the time this Court's Order was received in Washington on the afternoon of 3
March, Germany filed a separate case in the Supreme Court of the United States. Germany's
filing included a motion for leave to file a bill of complaint and a motion for a preliminary
injunction to prevent the execution of Walter LaGrand. 116 This filing, along with two other
simultaneous actions involving Walter LaGrand which reached the Supreme Court that day, 117
brought the matter to the sole Federal organ that constitution118y might have had power to halt
the execution of Mr. LaGrand. At approximately 4:25 PM, the Clerk of the Supreme Court
wrote the Solicitor General of the United States and urgently requested the Solicitor General's
views regarding Germany's action in the Supreme Court. (The Solicitor General is the fourth-
ranking official of the Department of Justice and represents the United States before the
Supreme Court.)
113. The Solicitor General then had a very short time in which to answer. He responded that,
based on a limited understanding of Germany's claim and the related circumstances, the
United States did not believe that either the Vienna Convention or the Co119's Order provided
a sufficient basis for the United States Supreme Court to grant a stay.114. This statement of views was not intended to be disrespectful of the International Court of
Justice. Rather, the Solicitor General sought to convey to the Supreme Court the United States
understanding of the legal situation, which in turn reflected the reality -- previously
120
acknowledged by Germany's President and Justice Minister -- that under the United States
constitutional system, the conviction and execution of Walter LaGrand was a matter within
the authority of the State of Arizona.
115. The Supreme Court of the United States denied Germany's motion for leave to file the
bill of complaint as well as its motion for a preliminary injunction to stay the execution of
Walter LaGrand. In a short opinion, the Supreme Court cited the large number of likely
jurisdictional obstacles to hearing the case, as well as the "tardiness of the pleas" put forward
by Germany. 121
CHAPTER II
THE UNITED STATES ACTED AS CALLED FOR BY THE COURT'S ORDER
116. This Chapter shows that the United States did what was called for by the Court's 3 March
Order, given the extraordinary and unprecedented circumstances in which it was forced to act.
The heart of the Court's indication of provisional measures consisted of two provisions. The
authoritative English text states:
(a) The United States of America should take all measures at its disposal to ensure that Walter
LaGrand is not executed pending the final decision in these proceedings, and should inform
the Court of all the measures which it has taken in implementation of this Order;
(b) The Government of the United St122s of America should transmit this Order to the
Governor of the State of Arizona.
117. First, as noted above, the United States promptly took the action called for in second
paragraph of the Court's operative statement that: "The Government of the United States of
America should transmit this Order to the Governor of the State of Arizona."
118. The United States also complied with the Court's further request that "The United States
of America should take all measures at its disposal to ensure that Walter LaGrand is not
executed pending a final decision in these proceedings." 123By immediately transmitting the
Order to the Governor of Arizona, 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. Otherwise, the
measures at the United States Government's disposal were exceedingly limited.
119. Two central factors constrained the United States ability to act. The first was the
extraordinarily short time between issuance of the Court's Order and the time set for the
execution of Walter LaGrand. There was enough time to transmit the Order to Arizona, but
not to identify and take any further measures, which would have required review of complex
and disputed factual and legal issues, as well as involvement of numerous high officials
within the federal Executive branch and judiciary. While the adjudication of important matters
in this Court often quite properly takes years of careful proceedings, the Court's Order in this
case allowed about two hours for response. Assessing the bases for further action -- not to
mention undertaking required consultation with senior officials and effective coordination
among them -- in such a short period of time simply was not possible.120. In the Breard case, where the Court's Order indicating provisional measures provided
somewhat more time for analysis and action, the Secretary of State wrote to the Governor of
Virginia asking the Governor to stay the execution of Angel Francisco Breard. 124Germany's
125
Memorial suggests a similar step might have been an option in this case. As explained
above, however, the Court's 3 March Order did not allow time for consideration -- much less
implementation -- of such an action in this case.
121. The second constraining factor was the character of the United States of America as a
federal republic of divided powers. Under the constitutional order developed at a conference
of state delegates in Philadelphia in 1787 and in force since 1789, the separate states of the
United States retain their independence and authority except in the areas where the Federal
Government has been allocated power by the Constitution of the United States. The separate
states are not subsidiary bodies subordinate to the power of the Federal Government and
subject to its direction. Rather, they remain sovereign and the masters of their a126irs within
the areas of responsibility reserved to them by the United States Constitution.
122. One of the most important functions reserved to the states is criminal law enforcement,
including the right to impose and administer capital punishment in serious cases prescribed by
state law, provided it is done consistently with rights guaranteed by the Federal Constitution.
Although Federal law establishes some Federal crimes, criminal law enforcement for crimes
such as murder in the United States largely lies within the authority and responsibility of the
states. Federal statutes give the Federal courts specified powers to review state criminal
proceedings to ensure that those proceedings have complied with rights guaranteed by the
United States Constitution. There is no general Federal power of review of state court
criminal proceedings.
123. Prior to the filing of this case, senior German officials regularly recognized these
characteristics of the United States Federal system. In writing to President Clinton on 5
February, President Herzog acknowledged that:
[Y]ou have no means at law to influence the decision ... of Ms. Jane Dee Hull, the Governor
of Arizona. 127
Similarly, in writing to the U.S. Attorney General, Germany's Federal Minister of Justice
stated that:
I am well aware that you do not have any legal avenues for influencing the decision on
whether to grant clemency, since this decision has to be taken by the Governor of Arizona,
128
Ms. Jane Dee Hull.
124. The United States does not refer to the central role of the states in matters of criminal
justice in order to avoid its international legal obligations. The United States recognizes the
fundamental principle that domestic law does not relieve a member of the international
community of its obligations under international law. The United States also recognizes that
there was a breach of an important international legal obligation when Arizona state officials
failed to give consular notification as required by the Vienna Convention on Consular
Relations. We explain our federal system so that the Court will understand that Federal
Government officials do not have legal power to stop peremptorily the enforcement of a
criminal sentence by the state of Arizona.125. Some writers contend that United States domestic law might have offered further
exceptional avenues for Federal authorities to block Arizona from acting in the hours
following the Court's order. Various untried mechanisms for such urgent action have been
suggested, including the suggestion of an o129r by the President of the United States directing
a state governor to prevent the execution. In a government that operates under the rule of
law, the chief executive is not asked to sign orders of any kind without careful preparation and
research to ensure that the order is legally authorized and sound. An Executive order to a state
governor to stay an execution would have been unprecedented and fraught with legal
uncertainty. Responsible Federal officials did not judge that such steps against the State of
Arizona were an available legal course under the circumstances of this case, particularly in the
brief time allowed by the Court's Order.
126. Accordingly, in drawing the Court's Order to the attention of the Governor of Arizona,
U.S. officials took the only relevant measure at their disposal, given the few hours available.
It is wholly unreasonable to suppose that any more definitive actions could have been taken
under the circu130ances, even if they had been theoretically feasible under the United States
legal structure.
127. The third element of the Court's Order indicated that the United States "should inform
the Court of all the measures which it has taken in implementation of this Order." This was
done via a letter from the Legal Counselor of the United States Embassy in The Hague to the
Court dated 8 March 1999. The letter described the communications between the Federal
Government and the state of Arizona, as well as the proceedings in the United States Supreme
Court referred to above.
CHAPTER III
THE COURT'S ORDER BY ITS TERMS DID NOT CREATE BINDING LEGAL
OBLIGATIONS
128. The previous section shows how the United States responded as fully as possible to the
Court's Order, given the circumstances and the extraordinarily short time for response
available in the circumstances. This section considers the legal ramifications of this particular
Order in light of the terms used by the Court in framing it.
129. The terms of the Court's 3 March Order did not create legal obligations binding on the
United States. When considering how to determine whether a resolution of the Security
Council is or is not mandatory, the Court made the following observation:
The language of a resolution of the Security Council should be carefully analysed before a
conclusion can be made as to its binding effect. In view of the nature of the powers under
Article 25 [of the United Nations Charter], the question whether they have been in fact
exercised is to 131determined in each case, having regard to the terms of the resolution to be
interpreted, ... .
The same principles can be applied in assessing the character of the Court's Order here.
130. The language used by the Court in the key portions of its Order is not the language used
to create binding legal obligations. Instead, the key passages state that the United States
"should" take specified actions.132 This is the distinctive phrasing regularly used ininternational legal affairs when parties choose to signal an expectation -- even a high
expectation -- that something will be done, but not an intention to create mandatory legal
obligations.
131. Both this Court and the Permanent Court of International Justice have consistently used
the term "should" when indicating provisional measures. 133By contrast, this Court uses very
different language when issuing final judgments intended to express or create legally binding
obligations. Thus, for example, the Court in the Fisheries (U.K. v. Iceland) case stated that
"the Government of Iceland and the Government of the United Kingdom are under mutual
obligations to undertake negotiations ... ." 134In the Nicaragua case, the Court found the
Unite135tates to be in "violation" or "breach" of numerous obligations under international
law. Perhaps most emphatically, in its Judgment in the Diplomatic Staff case, the Court
decided, inter alia, that Iran "must immediately take all steps to redress the situation resulting
from the events of 4 November 1979 ... ." 136
132. The Court has also explicitly declined to recognize as binding French terminology
translated as "should." In the Aegean Sea case, 137the Court rejected an argument by Greece
that, based on the use of the word "décidé" and the words "doivent être résolus" in the original
text (which the Court understood in English to refer to a "decision" regarding matters that
138
"should be resolved" ) a joint communiqué issued by Greece and Turkey constituted a
"definitive agreement" to submit the dispute to the Court.
133. In light of the many years of such consistent practice by the Court, the international
community has come to recognize that explicit wording must be used by international
tribunals where their intention is to create binding obligations. For example, the International
Tribunal of the Law of the Sea, which, as discussed more fully below, 139is empowered to
"prescribe" rather than "indicate" provisional measures, uses the word "shall" in its orders
140
prescribing such measures.
134. The type of language used by international tribunals when they clearly intend to create
binding obligations is further illustrated by the orders of the International Criminal Tribunals
for the Former Yugoslavia ("ICTY") and Rwanda ("ICTR"). For example, in its warrant for
arrest and order of surrender of Slobodan Milošovic (24 May 1999), the ICTY "di141ted" UN
Member States to "arrest, detain, and surrender" Miloševic to the tribunal.
135. The use of "should" in non-binding contexts and of quite different terminology (such as
"shall" or "must") where a binding legal obligation is intended is also common practice in the
drafting of treaties and other international instruments. Thus, a statement adopted at the 1993
United Nations Conference on Environment and Development entitled "Non-legally binding
authoritative statement of principles for a global consensus on the management of
conservation and sustainable development of all types of fores142 uses "should" (along with
other qualified language) consistently throughout the text. Academic commentators also
recognize the role played by the term "should" to indicate non-binding undertakings. For
example, a recent article on the draft Multilateral Agreement on Investment ("MAI")
proposed revisions of the text reflecting this very terminology:
To bring the national treatment language in line with the MAI's non-binding treatment of
investor obligations and environmental safeguards, "shall" should be replaced with "should"
or with "shall endeavor to" in the MAI's section on national treatment. 143136. United States domestic courts regularly construe the term "should" in this same sense. A
Florida state court has opined that
[t]he section [of the Florida Administrative Code] dealing with resignations states that an
employee "should" present reasons for his resignation in writing to the agency. Use of the
word "should" indicates to us that the procedure for resignations is discretionary rather than
mandatory in nature. 144
In a different context and another corner of the country, an Idaho court held that
the MUTCD [Manual of Uniform Traffic Control Devices] provides that the term "should" is
"an advisory condition" and that, where it is used, the action it refers to is "recommended but
not mandatory." Therefore145he traffic indications described ... are merely recommendations,
not mandatory in nature.
137. The word "should" is thus a term used both by the Court and in many other settings to
indicate a call or an exhortation for action, but not a binding legal obligation. As such, any
perceived deviation by the United States from the terms of the Court's 3 March Order would
not in any sense constitute a violation of obligations under international law.
CHAPTER IV
PROVISIONAL MEASURES OF THE COURT DO NOT CREATE BINDING LEGAL
OBLIGATIONS BY OPERATION OF ARTICLE 41 OF THE STATUTE OF THE
COURT OR OF ARTICLE 94 (1) OF THE UNITED NATIONS CHARTER, OR BY
OPERATION OF GENERAL PRINCIPLES OF INTERNATIONAL LAW
Section I. Introduction
138. As the previous discussions show, the United States did all that could plausibly be
expected of it in the roughly two hours available to respond to the Court's Order, and to the
other actions brought concurrently in United States courts by Germany. Further, the language
employed in the Order of 3 March makes clear that this particular Order did not in any case
impose binding legal obligations. Thus, the Court does not need here to decide the difficult
and controversial legal question of whether its orders indicating provisional measures would
be capable of creating international legal obligations if worded in mandatory, not precatory,
terms. This Chapter is therefore included solely to assist the Court should it nevertheless
determine that it must decide this issue.
139. It must be acknowledged, as Professor Rosenne observes, that
[t]he question of whether ... an indication of provisional measures is binding on the parties to
146
the provisional measures proceedings is controversial.
However, as one contemporary commentator has concluded:
There can be little doubt ... that the preponderant view is that an indication of interim
147
measures [by the International Court of Justice] is not binding.
The United States shares this view.140. The following discussion examines how the language and history of Article 41(1) of the
Court's Statute and Article 94 of the Charter of the United Nations, the Court's and State
practice under these provisions, and the weight of publicists' commentary, all show that
indications of provisional measures do not have mandatory effect under international law.
This section also addresses Germany's more theoretical arguments in favor of such mandatory
effect and underscores that, whatever the general rule may be, the rushed ex parte proceedings
leading to the Order in this case counsel that it should not be deemed to give rise to
obligations that implicate State responsibility.
Section II. The Constitutive Instruments of the Court Do Not Confer Authority to Issue
Binding Provisional Measures
141. The Court's authority to indicate provisional measures derives from Article 41 of its
Statute, the text of which makes clear that indications of provisional measures do not give rise
to binding legal obligations. The text of Article 41 is the foundation of the Court's authority in
this area, and must be carefully examined:
1. The Court shall have the power to indicate, if it considers that circumstances so require,
any provisional measures which ought to be taken to preserve the respective rights of either
party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the
parties and to the Security Council. (Emphasis added.)
This text is in substance identical to Article 41 of the Statute of the Permanent Court of
International Justice, substituting reference to the United Nations Security Council for
reference to the Council of the League of Nations.
142. The language of Article 41 is not the language that lawyers employ to create legal
obligations. Three aspects stand out. First, provisional measures are to be "indicated" by the
Court, not "prescribed". The verb "indicate" has been defined as follows:
To point out or point to or toward with more or less exactness: show or make known with a
fair degree of certainty.148
Thus, the key verb does not convey the notion of prescription or obligation. Rather, "to
indicate" involves the idea of pointing out or identifying a course of action, and of doing so in
a way that is not necessarily certain or precise in every respect.
143. The international community has recognized that "indicate" does not mean "prescribe,"
and has taken care to make clear when the goal is to grant compulsory power. Thus, in the
1928 General Act for the Pacific Settlement of International Disputes, Article 33(1) states:
In all cases where a dispute forms the object of arbitration or judicial proceedings ... the
Permanent Court of International Justice, acting in accordance with Article 41 of its Statute ...
shall lay down within the shortest possible time the provisional measures to be adopted. The
149
parties to the dispute shall be bound to accept such measures.It is very unlikely that the sentence highlighted above would have been added if the drafters
of the General Act had believed that provisional measures issued under Article 41 of the
Permanent Court's Statute were per se binding.
144. In the same vein, Article 290 of the Law of the Sea Convention empowers the
International Tribunal for the Law of the Sea ("ITLOS") to "prescribe" rather than to
150
"indicate" provisional measures. The significance of this difference in terminology was
explained in 1991 by the Registrar of this Court in a statement made at a meeting of the
ITLOS Preparatory Commission:
On the issue of provisional measures, ... [t]he use of the term `prescribe' rather than `indicate',
which was the expression employed in the Court's Statute, seemed to suggest that the [Law of
the Sea] Convention's measures would be binding ... . In the case of the International Court, it
could only `indicate' what measures were to be provided. 151
145. When the language of Article 41 was originally considered in 1920 by the Advisory
Committee of Jurists, a conscious decision was made to substitute the word "indiquer" for
"ordonner", the word used in the initial proposal. 152 A corresponding change was made in the
English from "order" to "suggest". 153(When the text was later considered by the League of
Nations Assembly, "indicate" was substituted for "suggest" in the English text in order to
better conform it to the French; however, an explicit effort to restore the term "ordonner" was
rejected on the basis that the "Court lacked the means of execution." 154)
146. Germany's Memorial cites Hudson's attempt to explain the use of the term 155diquer" as
simply "being designed to avoid offense to the susceptibilities of states." However, other
prominent observers at the time took precisely the opposite view. For example, Åke
Hammarskjöld, Registrar and later judge on the Permanent Court, wrote a seminal article in
156
1935 making and elaborating the point that to "indicate" is not to "order".
147. The second key aspect of the wording of Article 41 is that the indicated measures are
those which "ought to be taken". This is also not the language of legal obligation but of
encouragement or exhortation. The same dictionary defines "ought" as "used to express moral
157
obligation, duty". This is not directive, mandatory language.
148. Once again, the drafting history supports this understanding: The original proposal
considered by the Advisory Committee of Jurists used the term "must"; in later versions, it
158
was changed to "should"159 Ultimately, the Assembly of the League of Nations substituted
the phrase "ought to". While the League Assembly clearly intended to strengthen the
degree of moral force behind the measures contemplated by this provision, the language used
is still the language of exhortation, not of obligation. The League Assembly stopped far short
of reinstating the term "must".
149. Third, Article 41(2) describes the measures as being "suggested". They are not
"ordered", "required", or any of many other forms of words that normally indicate legal
obligation. Provisional measures are "suggestions", albeit of a special character and entitled to
special weight and consideration. Again, the drafting history bears out this interpretation. The
initial English version used the phrase "notice of these measures," and this was changed by
the Advisory Committee of Jurists to read "measures suggested". 160Despite its close scrutiny
of and other changes to this provision, the League Assembly opted to leave this phrase intact.150. The legal effect of Article 41 was again addressed at length in connection with certain
amendments proposed in 1931. At that time, the Court considered a proposed revision by
Judge Fromageot that would have directed the Court to take note of, and report to the
League's Security Council, a failure by a party to abide by a provisional "order" of the
Court. 161According to a record of the meetings to discuss the 1931 revisions, "M. Fromageot
said he had used the word `order' advisedly; the word `indicate' employed in the Statute and
Rules appeared to him somewhat vague." 162
151. Other judges objected to the use of the word "order", and a substantial discussion of the
character or weight of the Court's indications of provisional measures ensued. While views
were expressed on both sides of the issue, in the end, Judge Fromageot's proposal was
163
rejected by eight votes to two. This discussion highlights that, under the predecessor to the
Court's present Statute, indications of provisional measures did not implicate State
responsibility. We know of nothing in the history of the Court's present Statute suggesting a
different conclusion regarding its effect.
152. The German Memorial attaches significance to the other official languages of Article 41
of the Court's Statute and argues that at least three of those languages, the French, the
Spanish, and the Chinese convey a greater degree of obligation. 164 However, these arguments
are far from conclusive. For example, as Germany recognizes, the key word used in the
Russian translation ("???????" or "ukazat") at least arguably conveys a degree of ambiguity
165
on this point similar to the English term "indi166e". In any case, the authoritative text of the
Court's 3 March 1999 Order was in English. It should therefore be construed in accordance
with the English text of Article 41, and in a way that does not disregard its clear language.
153. Both the language and the history of Article 41 thus confirm that it is not a source of
binding legal obligations. In this connection, the United States takes note of Germany's
suggestion in its Memorial that, pursuant to Article 32 of the Vienna Convention on the Law
of Treaties, the travaux préparatoires need not -- indeed should not -- be considered by the
Court, presumably because of Germany's belief that its interpretation of Article 41 of the
167
Court's statute leaves no room for reasonable debate. As is clear from the arguments in this
case, however, Article 41 is at the very least susceptible to different readings. Moreover, as
one commentator on the Vienna Convention on the Law of Treaties has said:
[N]o rigid temporal prohibition on resort to the travaux préparatoires of a treaty was intended
by the use of the phrase `supplementary means of interpretation' in what is now Article 32 of
the Vienna Convention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of interpretation divorced from
168
the general rule.
154. Article 94 of the Charter also shows the non-binding character of indications of
provisional measures. Article 94 establishes the basic obligation of States to comply with
judgments of the Court. This fundamental Charter obligation of compliance relates to the
definitive expressions of the Court - its judgments. It does not extend to other types of actions
by the Court. Article 94 provides:
1. Each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party.2. If any party to a case fails to perform the obligations incumbent upon it under a judgment
rendered by the Court, the other party may have recourse to the Security Council, which may,
if it deems necessary, make recommendations or decide upon measures to be taken to give
effect to the judgment.
155. Although paragraphs 1 and 2 use different language - paragraph 1 speaks of "the
decision" of the Court, while paragraph 2 speaks of "a judgment" - their scope is the same. As
Judge Mosler explains,
[t]he term `decision' (`décision') ... is tantamount to the term `judgment' (`arrêt'). This
interpretation follows from the usage of both terms in Arts. 57-60 of the Statute and in Art. 94
of the Charter. These provisions refer, in their context, to the judgment or judgments on the
merits, including judgment on the form and amount of reparation. 169
The reference to the Court's "decision" in paragraph 1 is singular. It is the Court's final act -
its ultimate decision - to which Article 94(1) applies. Moreover, "decision" is modified by the
definite article "the." This shows that the paragraph relates to the single final or definitive
action of the Court - its judgment. 170 In the words of a former deputy registrar of the Court:
La juxtaposition des termes, l'emploi de l'article défini et du singulier, tout concourt à montrer
que "la décision" dont il s'agit est celle qui règle définitivement un litige, donc l'arrêt final ou
l'ensemble des arrêts finals. 171
156. In light of such factors, as Judge Singh concluded (reluctantly, but we believe correctly),
Article 94 does not give rise to a duty of compliance corresponding to that due the final
judgments of the Court:
The limitations of [Article 94(2) of the Charter] ... as a means of securing compliance with a
judgment (and the fact of its virtual non-use for that purpose) are well known: it is doubtful
that the `obligations incumbent ... under a judgment' extend, for example, to respect for an
order indicating provisional measures. [footnote omitted] 172
157. Germany's Memorial asserts that during the December 1979 oral proceedings on the
United States request for provisional measures against Iran in the Diplomatic Staff case, Mr.
Owen, the Agent for the United States, suggested that the obligation under Article 94(1) of the
Charter might extend to the Court's orders indicating provisional measures. Germany refers to
the following statement by Mr. Owen:
Iran has formally undertaken pursuant to Article 94 paragraph 1 of the Charter ... to comply
with the decision of this Court in any case to which Iran might be a party. Accordingly, it was
the hope and expectation of [the United States Government] that the Government of Iran, in
compliance with its formal commitments and obligations, would obey any and all Orders and
Judgments which might be entered by this Court in the course of the present litigation. 173
However, when considered in its totality, this statement does not necessarily convey the legal
interpretation Germany finds in it. The first sentence is essentially a paraphrase of Article
94(1). It must be read in connection with the second sentence, which expresses the
expectations of the United States in light of the broad fabric of Iran's international obligations
at the time. The "formal commitments and obligations" referred to embrace the whole range
of treaty and other obligations breached by Iran when it allowed the takeover of the UnitedStates Embassy compound. The argument is broad and political in character, as shown by the
use of the somewhat tentative terms "hope and expectation," rather than a more categorical
expression of direct legal obligation to comply with the provisional measures ordered by the
Court.
158. Accordingly, the principal texts governing the regime of provisional measures - Article
41 of the Statute and Article 94 of the Charter - both show that such measures do not impose
legal obligations that bring into operation the regime of State responsibility.
Section III. The Court's Practice Confirms the Non-Binding
Character of Indications of Provisional Measures
159. The Court's judgments have reflected the same understanding of these governing texts.
The Court simply has not treated indications of provisional measures as giving rise to
international legal obligations for States.
160. The Court considered the implications of an order indicating provisional measures most
clearly with reference to those indicated in the Nicaragua case. The Court there described the
consequences stemming from such an order in language indicating that such measures have a
particular weight and authority, but at the same time making clear that they are not sources of
binding legal obligations:
When the Court finds that the situation requires that measures of this kind should be taken, it
is incumbent on each party to take the Court's indications seriously into account, and not to
direct its conduct solely by reference to what it believes to be its rights.174
As Judge Shahabuddeen explained in connection with the Bosnia Genocide case:
That [Court's] statement [in the Nicaragua case] ... stopped short, in its careful formulation, of
saying that provisional measures are binding. Indeed, it could bear the interpretation that the
measures themselves are not binding, a party merely having a duty to take account of the
175
Court's indication of them.
161. The practice of States also shows that the Court's indications of provisional measures
have not been understood to impose binding legal obligations. Indeed, for the most part,
Parties have not carried the actions recommended by the Court into full effect, leading one
commentator to observe, albeit reluctantly, that:
It is at least open to argument that States themselves have built up a body of practice, treating
interim measures as nonbinding. In other words, it could be argued that there has been a de
facto clarification of Article 41.176
162. The Court's judgments have rarely found such lack of compliance worthy even of
mention. Thus, in the Anglo-Iranian Oil Company case, the Court stated that its order on
provisional measures had ceased "to be operative," but did not comment on Iran's failure to
comply with the provisional measures it had indicated. 177 In the Fisheries Jurisdiction cases,
the judgments noted the fact that Iceland did not act consistentl178ith the Court's indication of
provisional measures, but did not ascribe legal weight to this.163. In Nuclear Tests, the Court noted the Government of Australia's argument that the
French had committed a "deliberate breach of the Order" indicating provisional measures. 179
However, the Court did not express any view on the point or identify any consequences in its
judgment. In the Diplomatic Staff case, the Court confined its comments regarding Iran's
failure to comply with provisional measures to the following: "it is a matter of deep regret that
the situation ... has not been rectified ... ."Regret, perhaps, but not the breach of a legal
obligation.
164. An extensive and consistent body of practice thus indicates that neither States nor the
Court have understood indications of provisional measures to impose legal requirements.
Section IV. Germany's Functional Argument For A Binding Obligation To Comply
With Provisional Measures Also Lacks Merit
165. Germany advances a further, more theoretical argument that provisional measures must
have binding effect based not on legal texts or other positive indications of international law
but on what it terms "the principle of institutional effectiveness."181In essence, Germany
contends that for the Court to be able to issue final judgments that are binding under
international law, it must have inherent authority to issue interim orders with the same effect.
However, as Professor Sztucki demonstrates, whatever the symmetrical appeal and logic this
argument may have, it is flawed, because "there is in international law no such peremptory
correlation between the legal effects of final and interlocutory decisions." 182In 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
the power to issue binding final judgments, but a more circumscribed authority with respect to
provisional measures.
Section V. Whatever the General Rule May Be, This Order Should Not Be Construed to
Have Binding Legal Character
166. Whatever the general rule may be, in the unique circumstances here, the Court should
not construe its order as creating legal obligations that trigger the rules of State responsibility.
Germany's Memorial acknowledges that the legal weight of any indication of provisional
measures can be affected by the surrounding circumstances:
In principle, and subject to a careful analysis of each specific order, the breach of an order of
the Court brings into operation the ordinary principles of state responsibility. 183(Emphasis
added.)
We do not agree with the asserted general proposition, even "in principle". However, there are
compelling reasons for the 3 March Order not to be interpreted to be legally binding, given
the extraordinary and rushed process leading to it.
167. As we have shown, Germany's decision to file this case when and as it did was
unreasonable, unnecessary and placed the Court in an extremely difficult position. The Court
could respond to Germany's action only through the exceptional step of an ex parte order,
based solely on the legal claims and factual representations of one party. Then, the Party to
whom the Order was directed was given only about two hours in which to respond.168. Because of the press of time stemming from Germany's last-minute filing of the case,
basic principles fundamental to the judicial process were not observed in connection with the
Court's 3 March Order. Thus, whatever one might conclude regarding a general rule for
provisional measures, it would be anomalous -- to say the least -- for the Court to construe
this Order as a source of binding legal obligations.
Section VI. The United States Conduct Following Initiation of This Proceeding Also Has
Not Violated Any Customary International Law Obligations
169. Toward the end of its discussion of the Court's 3 March Order, the Memorial adds a
cursory point to the effect that:
The United States has violated the obligation to refrain from any action which might interfere
with the subject matter of a dispute while judicial proceedings are pending.184
Such a claim involves issues of general law, not the Vienna Convention. Hence, the Court
does not have jurisdiction to consider it under the Optional Protocol. The implications of the
rule as presented by Germany are potentially quite dramatic, however. Germany appears to
contend that by merely filing a case with the Court, an Applicant can force a Respondent to
refrain from continuing any action that the Applicant deems to affect the subject of the
dispute. If the law were as Germany contends, the entirety of the Court's rules and practices
relating to provisional measures would be surplussage. This is not the law, and this is not how
States or this Court have acted in practice.
PART VII
THE COURT CANNOT CREATE OR COMPEL A GUARANTEE REGARDING
FUTURE CONDUCT
170. Germany's final submission calls for the Court to adjudge and declare:
[T]hat the United States shall provide Germany a guarantee that it will not repeat its illegal
acts and ensure that, in any future cases of detention of or criminal proceedings against
German nationals, United States domestic law and practice will not constitute a bar to the
effective exercise of the rights under Article 36 of the Vienna Convention on Consular
Relations.185
171. Germany thus seems to request that the Court somehow require the United States to
confer upon Germany new or additional rights exceeding those already existing by reason of
the Convention. Such a request goes beyond any remedy that the Court can or should grant,
and should be rejected. The Court's power to decide cases in its role as the principal judicial
organ of the United Nations does not extend to the power to order a State to provide any
"guarantee" intended to confer additional legal rights on the Applicant State.
172. As Professor Rosenne observes:
The International Court is not a legislative body established to formulate new rules of law. In
a sense this is stating the obvious. Nevertheless, confusion persists. The Court, like all courts,
applies the existing law. It does not "create" new rules of law either for the parties to a given
dispute or for the international community at large.186173. The United States does not seek license to commit future breaches of its obligations
under the Vienna Convention. The United States keenly appreciates the importance of the
Vienna Convention's consular notification obligation for foreign citizens in the United States
as well as for U.S. citizens traveling and living abroad. As explained in Part II, U.S.
authorities are working energetically to strengthen the regime of consular notification at the
state and local level throughout the United States, in order to reduce the chances of cases such
as this recurring. The United States would welcome the suggestions and assistance of the
Government of Germany in those endeavors. Nevertheless, the relevant legal obligations are
those contained in the Vienna Convention. The United States does not believe that it can be
the role of the Court, in the performance of its judicial function, to impose any obligations
that are additional to or that differ in character from those to which the United States
consented when it ratified the Vienna Convention.
PART VIII
CONCLUSION AND SUBMISSIONS
174. The United States acknowledges that there was a breach of the Vienna Convention
obligation of consular notification in the cases of Karl and Walter LaGrand. The United States
has apologized to Germany for that breach, and is working to prevent any recurrence. The
United States disputes the admissibility of Germany's further claims. In any case, for the
reasons shown in this Counter-Memorial, Germany's claims other than those directly related
to the acknowledged breach of the consular notification obligation should be rejected on their
merits.
175. Accordingly, on the basis of the facts and arguments set forth in this Counter-Memorial,
and without prejudice to the right further to amend and supplement these submissions in the
future, the United States asks the Court to adjudge and declare that:
(1) There was a breach of the United States obligation to Germany under Article 36 (1)(b) of
the Vienna Convention on Consular Relations, in that the competent authorities of the United
States did not promptly give to Karl and Walter LaGrand the notification required by that
Article, and that the United States has apologized to Germany for this breach, and is taking
substantial measures aimed at preventing any recurrence; and
(2) That all other claims and submissions of the Federal Republic of Germany are dismissed.
27 March 2000
_____________________
Michael J. Matheson
Co-Agent of the United States of America
__________
Footnotes1 Done at Vienna 24 April 1963. 21 UST 77; TIAS 6820; 596 UNTS 261. Article 36, paragraph (1) of the
Vienna Convention states:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them.
Nationals of the sending State shall have the same freedom with respect to communication with and access to
consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular
post of the sending State if, within its consular district, anational of that State is arrested or committed to prison
or to custody pending trial or is detained in any other manner. Any communication addressed to the consular
post by the person arrested ... shall also be forwarded by the said authorities without delay. The said authorities
shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or
detention, to converse and correspond with him and to arrange for his legal representation ... .
2 The consular issue appears to have been raised for the first time in the letter from Foreign Minister Fischer to
Secretary of State Albright dated 22 February 1999. Memorial of the Federal Republic of Germany dated 16
September 1999 (hereinafter "Memorial" or "German Memorial"), Annex MG 18, p. 528.
3 A small number of documentary exhibits referred to in this Counter-Memorial are reproduced in an
accompanying volume of U.S. exhibits. Volumes II and III of Germany's Memorial contain much relevant
documentation. Instead of reproducing that material, thisCounter-Memorial refers as appropriate to documents
contained in Volumes II and III of Germany's Memorial.
4 German Memorial, para.7.02(1).
5 German Memorial, para. 1.08.
6 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J.
Reports 1999, p. 15, para. 25 (Hereinafter "Order of 3 March 1999"); Vienna Convention on Consular Relations
(Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p.
257, para. 38.
7 Memorial, Annex MG 14, p. 511.
8 Memorial, Annex MG 20, p. 541.
9 Memorial, para. 2.03.
10 See Walter and Karl LaGrand: Report of Investigation into Consular Notification Issues, U.S. Exhibit 1, pp.
2-3.
11 A child born out of wedlock outside the United States to a non-U.S. citizen mother and a U.S. citizen father in
the years 1962 and 1963 would have acquired U.S. citizenship only if, prior to the child's birth, the U.S. citizen
father had been physically present in the United States orits outlying possessions for ten years prior to the birth,
at least five of which were after the age of 14, and the child's paternity had been established by legitimation
before the child's 21 birthday.
12 Masie LaGrand could have applied for naturalization of his adopted children pursuant to former Section 323
of the Immigration and Nationality Act of 1952, 8 U.S.C. 1434, until its repeal in 1978; after 1978, he could
have applied pursuant to what is now Section 320, 8 U.S.C. 1433, provided the child to be naturalized was under
the age of 18. (Section 323 was repealed in 1978 by Section 7 of Public Law 95-417.)
13 Signed Aug. 25, 1921; entered into force Nov. 11, 1921. 42 Stat. 1939; 8 Bevans 145; 12 LNTS 192.14 Memorial, para. 2.04 et seq.
15 Arizona v. Walter Burnhart LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987) (Memorial, Annex MG 3, p. 293),
cert. denied, 484 U.S. 872 (1987); Arizona v. Karl Hinze LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987)
(Memorial, Annex MG 4, p. 305), cert. denied, 484 U.S. 872 (1987).
th
16 Karl and Walter LaGrand v. Lewis, 883 F.Supp 451, 469 (1995), aff'd, 133 F.2d 1253 (9 Cir. 1998), cert.
denied, 119 S.Ct. 422 (1998) (Memorial, Annexes MG 8-11, pp. 453et seq.)
17 Declaration of M. Elizabeth Swope of 14 March 2000, U.S. Exhibit 3.
18 Ibid.
19 Excerpts are reproduced at U.S. Exhibit 4. A copy of this publication is being provided to the Library of the
Court. Courtesy copies were provided in 1998 to allEmbassies in Washington, D.C., and later to all foreign
consulates in the United States.
20 U.S. Exhibit 5.
21 The booklet is available at: http://www.state.gov/www/global/legal_affairs/ca_notification/ca_prelim…
22 So that the full scope of consular notification obligations will be understood and observed, the Department is
also working to educate coroners and other officials responsible for reporting deaths (Vienna Convention Article
37(a)) and judges involved in the appointment of guardianships (Article 37(b)). It has also taken steps to ensure
the provision of consular notification in cases of ship wrecks and air crashes (Article 37(c)).
23 Pursuant to these new procedures, Karl and Walter LaGrand were given formal notification of their right to
contact their consular officials on December 21, 1998. Memorial, Annex MG 12, p. 499. Clearly this notice
came too late to constitute compliance with Article 36 in this case, but it is concrete evidence that the procedures
now in place in Arizona are being followed.
24 Memorial, paras. 4.53 et seq.
25 Memorial, para. 4.11. Germany seems to criticize Arizona authorities for not directly informing the German
Consulate General of the LaGrand's arrest, Memorial para. 4.12. However, as the Memorial acknowledges, such
"notification of the consulate without or against the will of the person concerned is excluded." Memorial, para.
4.11.
26 Declaration of Edward Betancourt, U.S. Exhibit 8, p. 5.
27 U.S. Exhibit 1, p. 3.
28 U.S. Exhibit 1, p. 9.
29 Indeed, Germany's Memorial implies that the brothers may have come to realize their German nationality
only after their arrest. Memorial, para. 6.83. ("[A]fter the brothers had become aware of their German
nationality, they raised the violation of Article 36 of the Vienna Convention ... .")
30 Perhaps recognizing the speculative character of manyof its factual arguments, Germany contends that "the
burden of proof for the impact of the violation is to be borne by the United States." Memorial, para. 4.52.
Germany cannot so easily evade the basic principle that "[u]ltimately, ... it is the litigant seeking to establish a
fact who bears the burden of proving it." Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 437, para. 101.
The ambiguities and unproven assumptions throughout Germany's case involve matters that are or can be known
to Germany. The Court "cannot ... apply a presumption that evidence which is unavailable would, if produced,
have supported a particular party's case; still less a presumption of the existence of evidence which has not yetbeen produced." Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening),
Judgement of 11 September 1992, I.C.J. Reports 1992, p. 399, para. 63.
31 Memorial, para. 4.53 n. 214, citing a brief of a LaGrand lawyer at Annex MG 46, p. 942.
32 Memorial, para. 4.54.
33 Memorial, paras. 2.06 and 3.73.
34 Memorial, para. 3.73.
35 Memorial, para. 2.06.
36 Memorial, para. 3.73 and Annex MG 41, p. 801.
37 Memorial, para. 2.03. See Memorial, paras 4.68-4.79.
38 Memorial, Annex MG 2, pp. 253-289. Walter and Karl LaGrand are identified on the first pages of their 1984
pre-sentence reports as citizens of Germany. Ibid., pp. 253 and 268.
39 The Memorial does not clearly describe Germany's understanding of events at the 23 February 1999
clemency hearing, although it suggests that the hearing somehow revealed that Arizona officials knew of the
LaGrands' German nationality as early as 1982. Memorial,para. 1.03. Our understanding is that Counsel for the
State of Arizona referred to the 1984 pre-sentence report at the 23 February hearing, in order to show that
evidence about the brothers' childhoods was available at sentencing. German representatives apparently viewed
this as an indication of bad faith by Arizona.
40 At para. 4.51, the Memorial is categorical: had consuls been involved, "the brothers would not have been
executed." Para. 1.01 is somewhat less confident. ("There are compelling reasons to believe that the LaGrands
would have escaped the death penalty ... .") Para. 4.56 seems more careful. (Assistance "likely would have saved
their lives.") None of these statements is credible in light of the circumstances described here.
41 Memorial para. 4.61.
42 Memorial, Annex MG 2, p. 259.
43 Transcript of the Aggravation-Mitigation Hearing, Memorial, Annex MG 5, pp. 355 and 363.
44 Transcript of Entry of Judgment and Sentencing, 14 December 1984, Memorial, Annex MG 6, p. 440.
45 Memorial, para. 4.65.
46 See, e.g., State v. Clabourne, 298 Ariz. Adv. Rep. 12 (1999);State v. Djerf, 191 Ariz. 583, 959 P.2d 1274
(1998); State v. Lee (1), 189 Ariz. 590, 944 P.2d 1204 (1997);State v. Hedlund, 185 Ariz. 567, 917 P.2d 200
(1996); State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995);State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993);
State v. White, 168 Ariz. 500, 815 P.2d 869 (1991).
47 Transcript of Entry of Judgement and Sentencing, 14 December 1984, Memorial, Annex MG 6, p. 439.
48 Ibid., p. 440.
49 Ibid., pp. 440-441.
50 Memorial, para. 4.67. The Federal Public Defender's affidavit is Germany's Annex MG 53, pp. 1219-1220.
51 Weaver Barkman's Declaration of 11 February 2000 is U.S. Exhibit 7.52 Memorial, para. 7.02.
53 Optional Protocol to the Convention on Consular Relations Concerning the Compulsory Settlement of
Disputes, done at Vienna 24 April 1963, 21 UST 325, 596 UNTS 487.
54 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures,
Order of 9 April 1998, I.C.J. Reports 1998, p. 257, para. 38; Order of 3 March 1999, para. 25.
55 Memorial, para. 4.119.
56 See, e.g., Memorial paras. 4.42, 4.44, 4.68, 4.70 and 4.73 et seq.
57 Memorial, paras. 4.26 et seq.
58 Memorial, para. 4.81.
59 Memorial, para. 1.09. ("Neither does Germany intend, or has ever intended, to use the International Court of
Justice as a court of criminal appeals.")
60 Memorial, para. 2.06.
61 Letter of Foreign Minister Fischer to Secretary of State Albright, 27 January 1999, Memorial, Annex MG 17,
p. 524.
62 Letter of Foreign Minster Fischer to Secretary of State Albright, 22 February 1999, Memorial, Annex MG 18,
pp. 528-531.
63 Order of 3 March 1999, p.9.
64 Memorial, para. 3.63 et seq.
65 Memorial, para. 3.65. ("It was only seven days before it brought the dispute to the Court that Germany had
become aware of the relevant facts underlying its claims.")
66 The German Memorial describes as "shocking" the supposed revelation by counsel for Arizona at the
clemency hearing. Memorial, para. 3.65. Arizona's counsel was in fact simply arguing that the failure of consular
notification was not prejudicial, since mitigation evidence of the kind Germany said it might have provided was
in fact available at the time, as shown by the 1984 pre-sentence reports. Since those reports were available to all
parties and are understood to be central to any sentencing procedure in the United States, counsel for Arizona
had no reason to think that referring to them would be "shocking" to anyone, and certainly not to diligent
German consular officials.
67 Memorial, Annex MG 2, p. 251.
68 Application of the Convention on the Prevention andPunishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 337, para. 21.
69 Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1973, p. 166.
70 Ibid., p. 209, para. 92.
71 Ibid.
72 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1982, p. 325.73 Ibid., p. 338, para. 29.
74 Memorial, paras. 4.15, 4.16, and 7.02.
75 U.S. Exhibit 1, p. 9.
76 Memorial, paras. 4.86 et seq.
77 This issue is addressed in Part V.
78 Memorial, paras. 4.17 et seq.
79 Memorial, paras. 4.86 et seq. Germany also relies upon its argument that Article 36 creates individual rights
to support its "diplomatic protection" argument. Germany appears to be saying that, to the extent that Article 36
creates individual rights as opposed to governmental rights, the LaGrand brothers satisfied the general
requirement of international law that they exhaust their domestic remedies (i.e., the remedies available to them in
the United States) and that it therefore is appropriate under international law for Germany now to espouse those
claims. As we explain in Part IV, however, any claim brought under a general theory of diplomatic protection is
outside the Court's jurisdiction.
80 Memorial, para. 4.18.
81 Memorial, paras. 4.17 et seq.
82 United Nations Conference on Consular Relations, Vol. II, A/CONF.25/16/Add.1, Annexes, Doc.
A/CONF.25/6, Draft articles on consular relations adopted by the International Law Commission at its thirteenth
session, p. 24. Article 36(2) as proposed by the ILC provided that the rights set forth in Article 36(1) "shall be
exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that
the said laws and regulations must not nullify these rights."Ibid.
83 Article 36(2) was discussed specifically at the 18 and 19 meetings of the Second Committee on March 18,
1963. United Nations Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of
the First and Second Committees, A/CONF.25/16, pp. 346-48.
84 The representative of the United Kingdom indicated that, "It was realized that consulates must comply with
laws and regulations on such matters as prison visitingand what might be given to the prisoner. It was of the
greatest importance, however, that the substance of the rights and obligations in paragraph 1 must be observed."
United Nations Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of the First
and Second Committees, A/CONF.25/16, pp. 346-47.
85 Ibid., p. 40, para. 3.
86 Ibid., p. 40, para. 8.
87 The Second Committee considered Article 36, focusingprimarily on Article 36(1), on March 14, 15, and 18,
1963. United Nations Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of
the First and Second Committees, A/CONF.25/16, pp. 331-348. The Plenary Session then took up Article 36 on
April 17, 1963, when a vote to adopt it failed, and again on April 20, 1963.Ibid, pp. 35-46 and 81-87,
respectively. For a review of the negotiating history,see L. Lee, Consular Law and Practice (1991), pp. 133-
151.
88 Document A/CONF.25/L/50, United Nations Conference on Consular Relations, Vol. II,
A/CONF.25/16/Add.1, p. 171.
89 Also as shown in Part IV, while Germany seeks to implicate other aspects of Article 36, it has not identified
any failure by Arizona to honor a request from either Walter or Karl LaGrand to notify the relevant consular
post, or to allow consular contact or access once requested.90 When States have wished to define a precise time by which the consular notification procedure must be
completed, they have done so by concluding agreements separate from the Vienna Convention. For example, the
United States and a number of other States have negotiated bilateral consular agreements that provide enhanced
consular protections beyond those contained in the Convention. In some of these agreements, the parties have
allowed each other up to four days to provide consular notification following a detention or arrest. Even these
agreements, however, do not tie consular notification to any particular stage of an investigation or prosecution.
See U.S. Department of State, Consular Notification and Access (January 1998), pp. 47-49 (summarizing
bilateral agreements between the United States and other countries).
91 The Declaration of Edward Betancourt, U.S. Exhibit 8, describes a number of the ways in which consular
notification is provided.
92 A detainee may in fact reject consular assistance for a variety of reasons, including to protect his privacy,
because of a general distrust of his own government, or because he considers it unnecessary (e.g., in the case of a
long-term, assimilated resident). See ibid.
93 United Nations Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of the
First and Second Committees, A/CONF.25/16, pp. 331-348 (Second Committee sessions of March 14, 15, and
18, 1963), pp. 35-46 (Plenary Session of April 17, 1963), pp. 81-87 (Plenary Session of April 20, 1963).See Lee,
supra note 87, pp. 138-139.
94 United Nations Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of the
First and Second Committees, A/CONF.25/16, p. 82 (Plenary Session of April 20, 1963). (Emphasis added.)
95 At an earlier stage of the debate, for example, the United Kingdom suggested that concerns about compliance
could be addressed through bilateral agreements to waive rights where mutually convenient. United Nations
Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of the First and Second
Committees, A/CONF.25/16, p. 340, para. 21 (Second Committee session of March 15, 1963). Other delegations
implied that technical violations in cases of brief arrests might be overlooked. E.g., ibid., p. 338, para. 10
(delegate from Yugoslavia), p. 341, para. 37 (delegate from France).
96 Germany suggests that a different rule is emthging in the United States. (Memorial, paras. 4.116-4.119.) In
fact, the current trend is the opposite. The 9 Circuit Court of Appeals decision described in paragraph 4.118 of
the Memorial has been withdrawn, and both the 9 and the 1 Circuit Courts have adopted a rule that failures of
consular notification are not appropriately remedied by suppressing evidence or other similar measures in the
criminal process. United States v. Nai Fook Li, 2000 WL 217891 (1 Cir., February 29, 2000); United States v.
th
Lombera-Camorlinga, 2000 WL 245374 (9 Cir., March 6, 2000). These decisions are provided to the Court as
U.S. Exhibit 9.
97 U.S. Exhibit 10.
98 U.S. Exhibit 11.
99 Memorial, para. 4.86 et seq.
100 As noted in Part IV, this claim is outside the Court's jurisdiction under the Optional Protocol in that it is
predicated upon customary law, and not the Vienna Convention.
101 The two U.S. appeals courts that have recently considered this issue (see supra note 96, and U.S. Exhibit 9)
concluded that it is not necessary to address whether Article 36 in some sense creates individual rights, because
Article 36 in any event does not require the suppression of evidence or other remedies in the criminal justice
system.
102 The Preamble affirms that the Convention would "contribute to the development of friendly relations among
nations, irrespective of their differing constitutional and social systems." In the same vein, the Preamble declares
that the purpose of privileges and immunities under the Convention "is not to benefit individuals but to ensure
the efficient performance of functions by consular posts on behalf of their respective States ... ."103 The original ILC proposal read as follows: "The competent authorities shall, without undue delay, inform
the competent consulate of the sending State if, within its district, a national of that State is committed to prison
or to custody pending trial or is detained in any other manner." This proposal did not reference the rights of
individuals, and the commentary to it made clear that itwas the ability of consular officials to perform their
functions that was at issue. Document A/CONF.25/6, United Nations Conference on Consular Relations, Vol. II,
A/CONF.25/16/Add.1, p. 24.
104 Memorial, paras. 4.97-4.107.
105 United Nations Conference on Consular Relations, Vol. I, Summary records of plenary meetings and of the
First and Second Committees, A/CONF.25/16, p. 331, para. 32 (Second Committee session of March 14, 1963).
106 Ibid., p. 333, para. 50 (observations of India).
107 Ibid., p. 334, para. 2 (amendment offered by Venezuela and others).
108 Ibid., p. 340, para. 21 (Second Committee session of March 15, 1963).
109 See supra notes 96 and 101 and U.S. Exhibit 9.
110 Insofar as the United States knows, this remains truewith respect to those States Party to the American
Convention on Human Rights ("Pact of San Jose"), 1114 UNTS 123, opened for signature November 22, 1969;
entered into force July 18, 1978. (The United States is nota Party.) This is of particular interest because, in an
advisory opinion released October 1, 1999, following a request by Mexico and supported by several parties to
the Convention (Advisory Opinion OC-16/99), the Inter-American Court reached conclusions that could well
have prompted those States to change their practices, if they agreed that consular notification is an integral part
of the criminal justice process.
The Inter-American Court of Human Rights is established by the American Convention, which in Article 64
permits the Court to provide non-binding advisory opinions "regarding the interpretation of [the American
Convention] or of other treaties concerning the protection of human rights in the American states." Mexico asked
the Court to render an advisory opinion with respect to the nature of the obligations of Article 36 of the Vienna
Convention on Consular Relations and the remedies that should be provided in the case of violations. Among the
Inter-American Court's non-binding conclusions are that foreign nationals must be informed that they may
request consular assistance before any statement is taken from them, and that capital punishment may not be
carried out in any case where consular notification was not provided. The United States has reservations
regarding these and some of the Court's other advisory conclusions, for reasons suggested by this Counter-
Memorial. However, to our knowledge neither Mexico nor any other State Party to the American Convention has
sought to apply the Court's advice to its procedures for interrogating defendants or has vacated or altered
sentences in criminal proceedings because of failures of consular notification.
111 Examples include regional instruments and institutionssuch as the European Convention on Human Rights,
which provides for the Strasbourg Court, and the American Convention on Human Rights, which provides for
the Inter-American Court of Human Rights. European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 UNTS 221, signed November 4, 1950; entered into force September 3, 1953;
American Convention on Human Rights, supra note 110.
112 At all relevant times, the local time in The Hague was six hours ahead of the time in Washington, D.C., and
eight hours ahead of the time in Arizona.
113 Order of 3 March 1999, p. 13, para.12.
114 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, I.C.J. Reports 1993,p. 334, para. 13.
115 International Court of Justice Press Communiqué 99/8. ("This evening, at 7 p.m., the International Court of
Justice (ICJ) will give its decision on the request for the indication of provisional measures made by Germany ...
.")116 Memorial, Annex MG 27, p. 615.
117 See Memorial, para. 2.15; Memorial, Annex MG 30, p. 665; Memorial, Annex MG 31, p. 669.
118 Letter of U.S. Solicitor General to the U.S. Supreme Court (3 March 1999), Memorial, Annex MG 28, p.
655.
119 Ibid.
120 Memorial, Annex MG 14, p. 507 and Annex MG 20, p. 537.
121 For example, the Supreme Court expressed concern that the United States had not waived its sovereign
immunity and noted that it was "doubtful" that Article III of the U.S. Constitution would provide "an anchor for
an action to prevent execution of a German citizen who is not an ambassador or consul." With respect to the
action against the State of Arizona, the Court stated that"a foreign government's ability here to assert a claim
against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh
Amendment principles." Germany v. United States, 119 S.Ct. 1016 (1999); Memorial, Annex MG 32, p. 677.
The Eleventh Amendment of the U.S. Constitution states: "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by
citizens of another State, or by Citizens or Subjects of any Foreign State."
122 Order of 3 March 1999, p. 16 , para. 29.
123 Emphasis added.
124 Memorial, Annex MG 37, p. 755.
125 Memorial, para. 4.169
126 See the Tenth Amendment of the United States Constitution, which states: "The powers not delegated to the
United States by the Constitution, nor prohibited by it to theStates, are reserved to the States respectively, or to
the people." For a general discussion of the limitson Federal power under the United States Constitution,see L.
Tribe, American Constitutional Law (1988), pp. 209-399.
127 Memorial, Annex MG 14, p. 511.
128 Memorial, Annex MG 20, p. 541.
129 See K. Highet, "The Emperor's New Clothes; Death Row Appeals to the World Court? The Breard Case As
a Miscarriage of (International) Justice," in Essays in Memoriam Judge José Maria Ruda, Memorial, Annex MG
39, p. 763; C. Vázquez, "Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional
Measures", 92 Am. J. Int'l L. (1998), p. 683.
130 Germany's Memorial goes so far as to suggest that the United States took "a number of active steps ... which
paved the way for the execution of Walter LaGrand." (Memorial, para. 4.171) To the contrary, any ability the
United States might have had to take actions -- affirmative or negative -- vis-à-vis the LaGrand case, beyond
simply reacting to the multiple proceedings initiated byGermany, was effectively precluded by the last-minute
timing chosen by Germany for its filings, both with thisCourt and the United States Supreme Court. When the
Supreme Court requested the views of the Solicitor General, for example, he was duty-bound to reply as
accurately as possible in the time allowed.
131 Legal Consequences for Status of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 53, para. 114.
132 Since English is the authoritative text of the 3 March Order, there is no need for consideration of other
languages in this context.133 As to the Court's practice, see, e.g., Vienna Convention on Consular Relations (Paraguay v. United States of
America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 248; Application of the
Convention on the Prevention of the Crime of Genocide, Orders of 13 September 1993 and 16 April 1993, I.C.J.
Reports 1993, pp. 325 and 3 (respectively); Frontier Dispute, Provisional Measures, Order of 10 Jaunary 1986,
I.C.J. Reports 1986, p. 3; Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United
States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 169; United States
Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J. Reports
1979, p. 7,; Nuclear Tests (Australia v. France and New Zealand V. France), Interim Protection, Orders of 22
June 1973, I.C.J. Reports 1973, pp. 99 and 135 (respectively); Fisheries Jurisdiction (United Kingdom v. Iceland
and Federal Republic of Germany v. Iceland), Interim Protection, Orders of 17 August 1972, I.C.J. Reports
1972, pp. 12 and 30 (respectively);Anglo-Iranian Oil Co., Interim Protection, Order of 5 July 1951, I.C.J.
Reports 1951, p. 89.
134 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 34, para.
79(3) (emphasis added).
135 See Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, pp. 123, 128, 140, 146, paras. 238, 252, 280, 292.
136 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J. Reports
1980, p. 44, para. 95(3)(emphasis added).
137 Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, pp. 38-44, paras. 94-108.
138 Ibid. at p.43, para. 105
139 See para. 144 below.
140 See M/V "Saiga" (No. 2) (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, Order of 11
March 1998, 37 I.L.M (1998) p. 1202; Southern Bluefin Tuna Cases (New Zealand v. Japan and Australia v.
Japan), Provisional Measures, Order of 27 August 1999, 38 I.L.M. (1999) p. 1624 (English texts authoritative).
141 The Prosecutor v. Slobodan Miloševic, Warrant of Arrest and Order for Surrender, Case No. IT-99-37-1,
Decision of 24 May 1999, The International Criminal Tribunal for the Former Yugolslavia, U.S. Exhibit 12.
142 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management of
Conservation and Sustainable Development of All Types of Forests, June 13, 1992, U.N. Doc
A/CONF.151/6/Rev.1, 31I.L.M. 881.
143 M. Vallianatos, "De-Fanging the MAI," 31 Cornell Int'l L.J. (1998)
p. 713, at p. 718 (footnotes omitted).
144 University of South Florida v. Tucker, 374 So.2d 16 (1979).
145 Lawton v. City of Pocatello, 886 P.2d 330; 126 Idaho 454 (1994).
146 S. Rosenne, The Law and Practice of the International Court, 1920-1996(3 Ed. 1997), Vol. III, p. 1434.
The history of the controversy has been thoroughly and thoughtfully analyzed and documented by Professor
Jerzy Sztucki in his 1983 bookInterim Measures in the Hague Court, pp. 260-302.
147 L. Collins, "Provisional and Protective Measures in International Litigation," inRecueil des Cours/Collected
Courses of the Hague Academy of International Law 1992, III, vol. 234 (1993) p. 219.
148 Webster's Third New International Dictionary(1981), p. 1150. TheOxford English Dictionary defines
"indicate" similarly to mean: "To point out, point to, make known, show (more or less distinctly)." Oxford
English Dictionary (1989), Vol. VII, p. 860.149 Pacific Settlement of Disputes (General Act), done at Geneva, September 26, 1928, 93 LNTS 343 (1928), p.
357 (emphasis added).
150 United Nations Convention on the Law of the Sea, opened for signature December 10, 1982, U.N. Doc.
A/CONF.62/122 (1982), 21 I.L.M. 1261 (1982). See J. Noyes, "The International Tribunal for the Law of the
Sea," 32 Cornell Int'l L.J. (1998), p. 109, in which the author states, "It is beyond cavil that [ITLOS] provisional
measures are binding." Ibid. at 135.
151 United Nations Press Release, SEA/1284, 29 August 1991, reproduced in R. Platzöder,The Law of the Sea:
Documents 1983-1991(1992), Vol. XIII, p. 510.
152 Sztucki, supra note 146, at p. 264. For the text of the original proposal,see Permanent Court of
International Justice, Advisory Committee of Jurists,Procès Verbaux of the Proceedings of the Committee
(1920) (hereinafter "ACJ I"), p. 609.
153 ACJ I, supra note 152, at p. 666.
154 League of Nations. Permanent Court of International Justice. Documents concerning the Action taken by the
Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the
Statute of the Permanent Court (1920) (hereinafter "ACJ II"), p. 134.
155 Memorial, para. 4.139, citing M. Hudson, The Permanent Court of International Justice, 1920-1942 (1943),
p. 425.
156 Å. Hammarskjöld, "Quelques aspects de la question des mésures conservatoires en droit international
positif" (1935), reproduced in Å. Hammarskjöld,La juridiction internationale (1938), p. 299. See also Sztucki,
supra note 146, at p. 281, and J. Elkind, Interim Protection: A Functional Approach (1981), p. 155.
157 Webster's Third New International Dictionary(1981), p. 1599. The relevant definition for "ought" in the
Oxford English Dictionary states:
The general verb to express duty or obligation of any kind; strictly used of moral obligation, but also with
various weaker shades of meaning, expressing what is befitting, proper, correct, advisable, or naturally expected.
Oxford English Dictionary (1989), Vol. X, p. 991.
158 ACJ I, supra note 152, at pp. 666, 681, and 736, respectively.
159 ACJ II, supra note 154, at p. 134. See also Sztucki, supra note 146, at p. 264.
160 ACJ I, supra note 152, at pp. 609, 681, 736.
161 Permanent Court of International Justice. Acts and Documents Concerning the Organization of the Court,
Ser. D, No. 2, Add. 2 (1931), p. 289.
162 Ibid. at p. 182.
163 Ibid. at pp. 181-99. See also Sztucki, supra note 146, at pp. 267-8.
164 Memorial, paras. 4.149, 4.150.
165 Memorial, para. 4.150. The United States would defer to those on the Court whose mother tongues are
implicated by such arguments. However, a consultation of Russian dictionaries by Department of State language
experts indicates that the phrase "direct, order or prescribe" was not included as one of the meanings of the verb
"ukazat" in one of the most authoritative such dictionaries (?.?. ??????, ??????? ???????? ????? (1990)).166 Order of 3 March 1999, at p. 16.
167 Memorial, at paras. 4.151-152.
168 I.M. Sinclair, The Vienna Convention on the Law of Treaties(1984), p. 116. It also bears noting that,
elsewhere in its Memorial - and presumably where the history seems more in line with Germany's argument,
Germany does not hesitate to discuss the relevant travaux préparatoires at some length. See, e.g., Memorial,
para. 4.97 et seq.
169 Mosler, "Article 94" in The Charter of the United Nations. A Commentary (1994), pp. 1003-4 (B. Simma,
ed.). (Judge Mosler agrees with Germany's position here: that indications of provisional measures are legally
binding. However, this stems from his analysis of Article 41, and does not rest on Article 94. Id.)
170 H. Kelsen, The Law of the United Nations (1951), p. 720. As Germany points out in its memorial (para.
4.132), other commentators have taken a different view of Article 94(1). However, the United States does not
share the view offered by Germany that "logic as well as an analysis of the object and purpose of Article 94 must
lead to" Germany's conclusions regarding Article 94. Professor Sztucki offers a thoughtful and well-reasoned
discussion of this issue in his book on provisional measures and the Court. Sztucki, supra note 146, at 285-6,
289.
171 A. Pillepich, "Article 94," in La Charte des Nations Unies (1991), p. 1281 (J. Cot and A. Pellet, eds.).
172 Judge N. Singh, The Role and Record of the International Court of Justice(1989), p. 42.
173 Memorial, para. 4.132, citing United States Diplomatic and Consular Staff in Tehran (United States v. Iran),
Pleadings, I.C.J. Reports 1980, p. 266 (Statement of Roberts Owen).
174 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 144, para. 289.
175 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, I.C.J. Reports 1993,p. 365. See also, H.W.A. Thirlway, "The Indication
of Provisional Measures by the International Court of Justice," inInterim Measures Indicated by International
Courts (1994), pp. 32-3 (R. Bernhardt, ed.).
176 Elkind, supra note 156, at p. 164.
177 Anglo-Iranian Oil Company (United Kingdom v. Iran), Preliminary Objection, I.C.J. Reports 1952, p. 114.
178 Fisheries Jurisdiction (United Kingdom v. Iceland; Germany v. Iceland) I.C.J. Reports 1974, pp. 16-17,
para. 33, and p. 188, para. 32 (respectively). ("Iceland ... notwithstanding the measures indicated by the Court,
began to enforce the new Regulations ...").
179 Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 259, para. 19.
180 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, I.C.J. Reports
1980, p. 42, para. 92.
181 Memorial, paras. 4.125-7. See also Memorial, paras. 4.141, 4.147-8.
182 Sztucki, supra note 146, at p. 291. Professor Sztucki cites a number of examples to support this conclusion
at p. 263, and elaborates further his argument at pp. 291-94.
183 Memorial, para. 3.32.
184 Memorial, para. 4.147.185 Memorial, para. 7.02.
186 S. Rosenne, The World Court. What It Is and How It Works (1995, Fifth Revised Ed.), p. 38 (emphasis in
original).
Counter-Memorial of the United States of America