Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document
CASE CONCERNING THE VIENNA CCBNVENTIONON CONSULAR RELATIONS
(PARAGUAY v. UNITED STATES OF AMERICA) (PROVISIONAL, MEASURES)
Order of 9 April 1998
In an order adoptedunanin~ouslyin the case concerning "Vienna Convention") allegedly con~mittedby tlie United
the Vienna Convention onC:oasularRelations (;?araguay v. States. Paraguay bases the jurisdiction of the Cloiirt on
United States of America), the Court called on the United Article 36, paragraph I?of the Statute of thc Court and on
States to "take all measuresat its disposal" to preventthe Article I of the Optional Protocol concernilip the
cxecut:ionof Mr. Angel Francisco Rreard, pentling a final Compulsory Settlementof Disputes, which accompaniestlie
decision of the Court in the proceedings instituted by Vienna Convention on Consular Relations ("the Optional
Paraguay. Mr. Breard was a Paraguayan national convicted Protocol").
of niurder in Virginia (United States) whose executionwas
In Paraguay's Application,it is statcd that in 1'992thc
schediiled for 14 April 1998. In its Order, the Court also authorities of Virginia arrested a Paraguayan national. Mr.
requested the United Statesto infornl it of all the nieasures Angel Francisco Brcard,who was charged. tried, convicted
taken -inimplementationof it. of culpable l~oinicideand sentenced to death by a Virginia
The Court was con~posed as follows: Vic:e-president court in 1993, without having been iiiibrnled of his rights
Weeramantry.Acting Prcsident; President Schwebel; Judges under Article 36, subparagraph 1 (bj, of the Vienna
Oda. Bedjaoui, Guillaum~:, Ranjeva, Herc:;r,egh, Shi, Convention; it is specified tliat among these rights arc the
Fleischhauer, Koron~a, Vereshchetin, Higgios, Parra- right to request thattlie relevant consularice of thc Srate
Aranguren, Kooijmans, Rezek; Registrar Valencia-Ospina. of which he is national be advised of his arrest and
detention,and the rightto communicate with that office;it is
hither alleged that theauthorities of the C~ommonwealth01'
Virginia also did not advise the Paraguayan consular
officers of Mr. Breard's detention, and that those ofilcers
'The conlplete text of the operative paragraph of the
Order reads as follows: were only able to render assistanceto him fioin 1996,'when
the Paraguayan Government lear~ltby its ow11means that
"41. For these reasons, Mr. Breard was imprisonedin the United States.
THE COURT Paraguay states that federalourts denied Mr. Breardthe
Unanin~ously, right to invoke the Vienna Convention; that the Virginia
Itlclicarthe following provisionalmeasu'res: court that sentenced Mr. Breard to thedcath penalty set an
1. The United States should take all measures at its execution date of 14 April 1998; that Mr. Breard,having
disposal to ensure that Angel Francisco Breard is not esllausted all means of legal rccoiirse availablc to him as of
executedpending the final decisioninthese p::oceedings, right, petitioned the United States Supreme Court for a writ
and should inform theCourt of all the measures which it of ccrtior.i.rrrequesting it to exercisc its discretionary
power to review the decision given by the lower federal
has taken in inlpleine~ltationof this Order; courts and to grant a stay of his execution pending that
11. Decides, that.u~itithe Court has given itsfinal
dccision, it shall remain seized of the matters which review; and that, while thisrequest is still pending bcfore
form the subject matter of this Order." the Supreme Court, it is however rarc for tliat Coiirt to
accede to such requests. Paraguay stated, moreover. that,
having brought proceedings itself before thefcderal courts
of the United States without success, it also filed such a
petition in the Supreme Court, which is also still pending;
President Schwebel and Judges Oda and Koroma and that Paraguay furtheril~oreengagcd in diplomatic efforts
appended declarations to the'Orderof the Court. with the Government of the United States and sought the
good offices of the Departmentof State.
Paraguay maintains that by violating its obligations
under Article 36, subparagraph I (h). of the Vicnna
Convention, the United States prevented Paraguayfrom
Histoiy of111ccase and slrhrnissiorz.s
exercising the consular fiiilctionsprovided for in Articles 5
(paras. 1-32) and 36 of the Convention and specifically for ciisuring the
Thr: Court begins by recalling that on 3 April 1998 protection of its interests andof those of its nationals in
United States; thatit was not able to contact Mr. Breard nor
Paraguay institutedproceedings against the United Statesof to offer him the nccessaiy assistance, and that accordingly
America for "violations of' the Vienna Conventionon Mr. Breard '"madea number of 01)jectivelyunreasonable
Consular Relations [of 34 April 19631" (hereinafter the
decisions (luring the criminal proceedings against him,which were conducted without translation" and thathe "did which Paraguay is entitled: restitution in kind. Without
not comprehend the fundamental differences between the the provisional measures requested, the United States
criminaljustice systemsof the United Statesand Paraguay"; will execute Mr. Breard before this Court can consider
Paraguay concludes from this that it is entitled to restitutio the merits of Paraguay's claims,and Paraguay will be
in iiltegn~m,that is to say "the re-establishment of the forever deprived of the opportunity to have the stntz~s
situation that existed before the United States failed to qzro ante restored in the event of a judgment in its
provide the notifications..requiredby the Convention"; favour."
Paraguay requests the Court to adjudge and declare as Paraguay requests that, pending final judgment in this
follows: case,the Court indicate:
"(1) that the United States, in arresting, detaining, "(a) That the Government of the United States take
trying, convicting, and sentencing Angel Francisco the measures necessary to ensure that Mr. Breard not be
Breard, as described in the preceding statement of facts, executedpending the dispositionof this case;
violated its international legal obligations to Paraguay, (b) That the Government of the United States report
in its own right and in the exercise of its right of
diplomatic protection of its national, as provided by to the Court the actions it has taken in pursuance of
subparagraph (a) immediately above and the results of
Articles 5 and 36of the Vienna Convention; those actions;and
(2) that Paraguay is therefore entitled to restitutio iit (c) That the Government of the United States ensure
integmiti; that no action is taken that might prejudice the rights of
(3) that the United States is under an international the Republic of Paraguay with respect to any decision
legal obligation not to apply the doctrine of 'procedural this Courtmay render on the merits of the case."
default',or any otherdoctrineof its internal law, so as to It asks the Court moreover to consider its request a'sa
preclude the exercise of the rights accorded under matter of the greatest urgency "in view of the extreme
Article 36of the Vienna Convention;and gravity and immediacy of the threat that the authorities ...
(4) that the United States is under an international will execute a Paraguayancitizen".
legal obligation to carry out in confonnity with the
By identical letters dated 3 April 1998, the Vice-
foregoing international legal obligations any hture President of the Court addressed both Parties in the
detention of or criminal proceedings against Angel followingterms:
Francisco Breard or any other Paraguayannational in its "Exercising the functions of the presidency in tells of
territory, whetherby a constituent,legislative,executive, Aiticles 13 and 32 of the Rules of Court, and acting in
judicial or other power, whether that power holds a confornlity with Article 74, paragraph 4, of the said
superior or a subordinateposition in the organizatioilof
the United States, and whether that power's functions Rilles, I hereby draw the attention of both Parties to the
need to act in such a way as to enable any Order the
are of an internationalor internalcharacter; Court will make on the request for provisional measures
and that, pursuant to the foregoing international legal to have its appropriateeffects."
obligations, At public hearingsheld on 7 April 1998,oral statements
(I) any criminal liability imposed on Angel on the request for the indication of provisional measures
Francisco Breard in violation of international legal
were presentedby both Parties.
obligations is void, and shouldbe recognized as void by
the legalauthoritiesof the UnitedStates; The Co1a.t k reasoning
(2) the United States should restore the stutzrsquo (paras. 23-41)
ante,that is, re-establish thesituationthat existedbefore
the detentionof, proceedingsagainst,and convictionand The Court begins by pointing out that on a request for
sentencing of Paraguay's national in violation of the the indication of provisional measures it need not, before
deciding whether or not to indicate them, finally satisfl
United States' internationallegal obligationstook place; itself that it has jurisdiction on the merits of the case, but
and
(3) the United States should provide Paraguay a that it may not indicate them unless the provisions invoked
guaranteeof the non-repetitionof the illegalacts." by the Applicant appear, prima facie, to afford a basis on
which thejurisdiction of the Court mightbe founded.
On 3 April 1998 Paraguay also submitted an urgent It notes that Article I of the Optional Protocol, which
request for the indicationof provisionalmeasures in order to Paraguay invokes as the basis ofjurisdiction of the Court in
protect its rights. It states in the followingterms the grounds this case, is wordedas follows:
for its request and the possible consequences of its
dismissal: "Disputes arising out of the interpretationor application
"Under the grave and exceptioilalcircumstances of this of the Convention shall lie within the compulsory
jurisdiction of the InternationalCourt of Justice and may
case, and given the paramount interest of Paraguay in accordingly be brought before the Court by an
the life and liberty of its nationals, provisionalmeasures application made by any party to the dispute being a
are urgently needed to protect the life of Paraguay's Partyto the present Protocol";
national and the abilityof this Courtto order the relief toand that both Paraguay andthe United States arepat-tiesto
the Vienna Conventionand to the Optional Protocol,in each
case without reservation. I have voted for the Order, but with disquiet. The
sensitive issues it poses have been hastily, if ably, argucd.
The Court observes that Paraguay,in its Applicationand The evidence introducedis bare. The Cowl's consideratio11
at the hearings, stated tliat the issues in dispu.tebetween of the issues of law and fact, in the circun~stancesimposed
itself imdthe United States concern Articles 5 and 36 of the upon it, has been sutiiniary. The United States ~nailitains
Vienna Convention and fall within tlie ~:ompulsory
jurisdj.ction of the Court under Article I of the Optional that no Statehas ever beforc claimed as Paraguayno\v does
that, because of lack of consular access under the Vienna
Protocol. Convention on Consular Relations, the results of a trial,
At the hearing the United States conb:iided that conviction. and appeal shouldbe voided. Not only has tlie
Paraguayhad not establishedthat the Court had jurisdiction United States apologized to Paraguay for thc u~~intentional
in therieproceedings,evenprima facie; it argued thatthere is failure of notification to Paraguay's consul ofthe arrest and
no dispute between the Parties as to the interpretation of
trial of the accused, but it has taken substantial stepsto
Article 36, subparagraph 1 (b), of the Vienna Convention strengthenwhat appears to be a practicein the United Statcs
nor is there a dispute as to its application, since the United of variableco~iipliancewith tlie obligatioiisi~iiposedupon it
States recognizes that the notification provided for was not by the ViennaConvention. , II
carried out; the United State:;maintainedthat the objections
raised by Paraguay to the proceedings brought against its All this said, 1 have voted for tlie Order indicating
provisio~ialmeasures suggestedpursuant to Article 31of the
national do not constitut~: a dispute concerning the Statute of tlie Court. Those nieasures ought to be taken to
interpretation or applicationof the Vienna Convention;and preserve the rights of Paraguay in a situation of
it added that there was no entitlenient to rcstitzltioitz incontestable urgency.
integrrdmunder the terms oftliatConvention.
The Court finds that there exists a disputeas to whether I have so voted essentially for thesereasons. Tlicrcis an
admitted failureby tlie Comtnonwealth of Virginia to havc
the relief sought by Paraguay is a remedy available under afforded Paraguay timely consular access, that is to say,
the Vienna Convention,in particular in relation to Articles 5 there is an admitted breach of treaty. An apology and
and 36 thereof, which is a dispute arising out of the Federal provision for avoidance of futuresuch lapses does
application of the Conver~tion within tlie nieaning of not assist the accused. who Paraguay alleges was OT may
Article I of the Optional Protocol; and thatpriina facie it has
jurisdiction under Article I of tlie aforesaid Optional have been prejudiced by lack ofconsular access, a question
which is for the merits. It is of obvious importance to the
Protocol to determine the dispute between Paraguay and the maintenanceand development of al-uleof law ainoligStates
United States. that the obligations imposed by treaties be complied with
The Court then indicates .thatthe purpose oftliepower to and that, where they are not, reparation be required. The
indicate provisional measures is to preserve the respective mutuality of interestof States in the effective observanceof
rights of the parties, pending a decision of the Court, and the obligations of tlie Vienna Conve~itio~ion Consular
presupposes tliat irreparable]prejudiceshall not be caused to Relations is tlie greater in the intermixed global comtiiunity
rights which are the subject of a dispute in judicial of today and tolnorrow (and the citizens of no State have a
proceedings; that it follo~vs that the Court must be higher interest in the observance of those obligatioiis than
concerned to preserve by such measures the rights which the peripatetic citizens of the United States).In my view,
may s~~bsequently be adjudgedby the Court to belong either
to the Applicant, or to the Respondent; and that such these coilsiderationsoutweigh tlie serious difficulties which
this Order i~nposcson the authorities of the United States
measures are onlyjustifiedif there is urgency. and Virginia.
The Court then refers to the fact that the execution of
Mr. BI-eardis ordered for 14April 1998; andfinclsthat such
an exf:cution would render it impossible for the Court to
1. I voted in favour of tlie Court's Order with great
order the relief that Paraguay seeks and thus cause hesitationas 1believedand I still believetliat tlierequest for
irreparable harmto the rights it claims.
In doing so the Court observes that the issut:sbefore it the indication of provisional nieasures of protection
do not concern the entitlement of the federal states within submitted by Paraguay to 'thc Court should have been
the Urdted States to resort to the death penalty for the most dismissed. However, in the litiiited time- one or two
days - given to the Court to deal with this matter, I havc
heinouscrimes, andthat, further, the functionof the Court is found it impossible to develop tny points sufficie~itlyto
to resolve internationallegal disputes between States, inter persuademy colleaguesto alter theirposition.
alia wlnenthey arise out of the interpretation or application
of inte:rnationalconventions, and not to act as a court of 2. First of all, 1 wol~ldlike to express some of my
criminal appeal. thoughtsin connectionwiththisrequest.
1can, on humanitarian grounds, understandtlieplight of
In the light of the above considerations, the Court finds
that the circunistaiicesrequire it to indicate, asiimatter of Mr. Breard and recognize that owing to the fact tliat
urgency, provisional measuresas provided by Article 41 of Paraguay filed this request on 3 April 1998, his fate now,
its Statute. albeit unreasonably,liesin tliehands of the Court. I would like to add, however,that, if Mr. Breard's rights
as they relate to humanitarian issues are to be respected
5. I would like to turn to some generalissuesrelatingto
then, inparallel, the matter of the rights of victimsof violent provisional measures. First, as a general rule, provisional
crime (a point which has often been overlooked) should be measures are granted in order to preserve rigl~tsexposed to
taken into consideration. It should also be noted that since
his arrest, Mr. Breard has been treated fairly in all legal imminent breach which is irreparable and these rights must
proceedings within the Americanjudicial system governed be those to be consideredat the merits stage of tlie case, and
by the rule of law. must constitute the subject matter of the Applicatioil or be
directly related to it. In this case, however, there is no
The Court cannot act as a court of criminal appeal and question of such rigllts(of Statesparties), as provided forby
cannot be petitioned for writs of habeas corpus. The Court the Vienna Convention, being exposed to an imminent
does not have jurisdiction to decide matters relating to irreparablebreach.
capital punishment and its execution, and should not
intervenein such matters. 6. Secondly, in order that provisional measures may be
grantedby the Court, the Court hasto have, at the vely least,
prima facie jurisdiction to deal with the issues concerning
the rights of the States parties. However I believe that, as
3. As stated earlier, Paraguay's request was presented regartis the present request for provisional measures. the
to the Court on 3 April 1998 in connection with and at the Court does not even have prima faciejurisdiction to handle
same time as its Application institutingproceedings against
the United States for violations of the 1963 Vienna this matter.
Convention on Consular Relations. Paraguay's Application 7. Thirdly, if the request in the present case had not
been granted, the Application itself would have become
was unilaterally submitted to the Court on the basis of the meaningless. If that had been the case, then I would have
Optional Protocol. I very much doubt that, on the date of had no hesitation in pointing out that the request for
filing of the Application and the request, there was any provi:jionalmeasures should not be used to ensure that the
"dispute[s] arising out of the interpretationor application of
the [Vienna]Convention"(OptionalProtocol,Article I). niain Application continue. In addition tlie request for
If there was any dispute between Paraguay and the provisional measures should not be used by applicants for
the purpose of obtaining interim judg~iients that would
United States concerningthe interpretationor applicationof affirmtheir own rights andpredeterminethe main case.
the Vienna Convention, it could have been that the United 8. I have thus explained why I formed the view that,
States was presumedto have violated the Convention at the given the fundamentalnature of provisionalmeasures, those
time of the arrestof Mr. Breard in 1992,as the United States
did not informthe Paraguayanconsul of that event. measures should not have been indicated upon Paraguay's
request.
This issuewas raised by Paraguay whenit becameaware I reiterate, however, that I voted in favour of tlie Order,
of Mr. Breard's situation.In 1996, negotiations took place for humanitarianreasons, and in viewof the fact that, if the
between Paraguay and the United States concerning the executionwere to be carried out on 14April 1998,whatever
consular function provided for under the Convention. In findings the Court might have reached might be without
July 1997, the United States proceeded to remedy the
violation by sending a letterto the Governmentof Paraguay object.
apologizing for its failure to inform the consul of the events
concerning Mr. Breard and giving an assurance that this
failure would not be repeated in future. In my view, the My decision to vote in favour of the Order granting the
United States was thus released from its responsibility for interim measures of protection in this matter was reached
violation of the Vienna Convention. only after careful consideration and in the light of the
From that time, the question of violation of the Vienna urgency and exceptionalcircumstancesof this case. Tom as
Convention,which mayhave led to a dispute concerningits I was between the need to observe the requirements for
application and interpretation, no longer existed. However,
grantingprovisional measuresof protectionunder Article41
this questionwas raised once more on 3 April 1998,the date of the Statute of the Court, thereby ensuring that whatever
on whichParaguay's Applicationwas filed. decision the Court might reach should not be devoid of
4. What did Paraguay ask the Court to decide in its object, and the need for the Court to comply with its
Application of 3 April 1998? Paraguay asked mainly for a jurisdiction to settle disputes between States which, in niy
decision relating to Mr. Breard's personal situation,namely, view, includes respect for the sovereignty of a State in
his pending execution by the competent authorities of the relationto its criminaljustice system.
State of Virginia. It was, therefore, both propitious and appropriate for the
Paraguay requested restitutio in integnrm.However, if Courtto bear in mindits missionwhich is to decidedisputes
consular contact had occurred at the time of Mr. Breard's between States, and not to act as a universal supreme court
arrest or detention, the judicial procedure in the United of criminal appeal. On the other hand, it is equally tlue that
States domestic courts relating to his case would have been the C:ourt'sfunction is to decide disputes between States
which are submitted to it in accordance with international
no different. This point was clarified in the course of the
oral pleadings.law, ;applyinginternational conventions, etc. The Order, in Court reached the correct conclusion that a dispute existed
myjudgement, coinplieswith theserequirements. andthat itsjurisdiction had been establishedprima facie.
Paraguay's Application,filed on 3 April 1998instituting In my view, in granting this Order, the Court met the
proceedings against the United States for purported requirements set out in Article 41 of the Statute, whilst at
violalions of the 1963 Vienna Convention on Consular the same time the Order preserves the respective rights of
Relations,inter alia, requestedthe Courtto gramprovisional either Party- Paraguay andthe United States. The Order
measures of protection under Article 41 of the Statiiteso as called for thesuspensionof the sentenceof executionof Mr.
to protect its rights and the right of one of its niitionals who Breard on 14April 1998,therebypreservinghis right to life
had been convicted of a c;spitaloffence comniitted in the pending the finaldecision of the Court on this matter, and
United Statesand sentencedto death. also recognized the United States' criminal sovereigntyin
The puipose of a request for provisional m1:asuresis to matters such as charging, trying, convicting and sentencing
prescrve as well as to safeguardthe rights of tht:parties that suspects as appropriate, within the United States or its
are in disputc, especiallywhen suchrights or subjectmatter jurisdiction. I concurwith this finding.
of the disputecould be irretrievablyor irreparablydestroyed In reaching this decision, the Court has also acted with
therebyrenderingthe Court'sdecisionineffectiveor without the necessaryjudicial prudence in considering a request for
object. lt is in the light of si~chcircumstancesthat the Court interim measures of protection, in that it should not deal
has found it necessary to indicate interim measures of with issues which are not immediately relevant for the
protection with the aim of preservingthe respec1:iverights of protection of the respective rights of eitherparty or which
either party to the dispute. But prior to this, the applicant are for the merits. It also thus, once again confirmed its
Statehas the burden of indicatingthat pritna facie,the Court consistent jurisprudence that a provisional measure of
hasjurisdiction. protection should only be granted where it is indispensable
When the facts presented were considered by the Court and necessaryfor the preservationof the respectiverights of
in the light of the Vienna Convention on Consular eitherparty and only with circumspection.It was in the light
Relations, in particular in relation to itsrtic11:s5 and 36, of the foregoing consideration. that I joined the Court in
and Article I of the Optional Protocol cor~cerningthe grantingthe requestunderArticle41 of the Statute.
Coml?ulsorySettlement of Disputes of 24 April 1963, the
Summary of the Order of 9 April 1998