Summary of the Judgment of 27 June 2001

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

LAGRAND CASE (GERMANY v. UNITED STATESOF AMERICA) (MERITS)

Ju~dgmentof 27 June 2001

In its Judgment in the LaGrand Case (Germany v. found by fourteen votes to one that should nationalsof

United Statesof America), the Court: Gennany nonetheless be sentenced to severe penalties.
found by fourteen votes to one that, by not infornling without theirrights under Article 36, paragraph(b), of
Kin1and Walter LaGrand without delay following their the Conventionhavingbeenrespected,the UnitedStates,
arrest of their rights under Article 36, paragraph1(b), of by means of its own choosing, shall allow the review
the Vienna Convention on Consular Relations, and by and reconsideration of the convictionand sentence by
therebydeprivingGermanyof the possibility,in a timely taking accountof the violationof the rights set forth in
that Convention.
fashion, to render the assistance provided for by the
Convention to the individuals concerned, the United The Court was composed as follows: President
States breached its obligations to Germany and to the Guillaume; Vice-President Shi; Judges Oda. Bedjaoui.
La.Grandbrothers under Article36, paragraph 1, of the Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin,
Convention; Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-
found by fourteen votes to one that, by not permitting Khasawneh,Buergenthal;RegistrarCouvreur.

the review andreconsideration, in the light of the rights
set forth in the Convention, of the convictions and
seiltences of the LaGrarld brothers after thr: violations
referred to in paragraph (3) above had been established, President Guillaume appended a declaratioil to the
the United States breac:hedits obligation to Germany Judgment of the Court; Vice-President Shi appends a
and to the LaGrand brothers under Article 36, paragraph
2, of the Convention; - separate opinionto the Judgment of the Court; Judge Oda
appendeda dissentingopinionto the Judgment of the Court;
foimdby thirteen votes to two that, by failing to take alJudges Koroma and Parra-Aranguren appended separate
measures at its disposal to ensure that Walter LaGrand opinions to the Judgment of the Court; Judge Buergenthal
was not executed pending the final decision of the appendeda dissentingopiniontothe Judgmentof theCourt.
lntlernationalCourt of Justice in the case, the United
States breached the obligation incumbent upon it under *
the Order indicatingprovisional measures issued by the * *
Courton 3 March 1999;
The full text of theoperativeparagraph of theJudgment
took note unanimously ofthe commitrneiltundertaken reads as follows:
by the United States to ensure inlplementation of the
specific measures adojpted in performar~ce of its "128. For thesereasons,
obligations under Article 36, paragraph 1 (b), of the THE COURT,
Convention; and finds that this commitnle~itmust be (1) By fourteenvotes to one,
regarded as meeting Germany's request for a general
Fitzdsthat it hasjurisdiction, on the basis ofArTicle
assuranceof non-repetition; of the Optional Protocol coilcerning the Compulsory

Continued on next pageSettlement of Disputes to the Vienna Convention on Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Consular Relations of 24 April 1963, to entertain the Kooijmans,Rezek,Al-Khasawneh,Buergenthal;
Application filed by the Federal Republic of Germany
AGAINST:Judge Oda;
on 2 March 1999: (4) By fourteen votesto one,
IN FAVOUR: President Guillaume; Vice-President Finds that, by not peimitting the review and
Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, reconsideration, in the light of the rights set forth in the
Fleischhauer, Koroma, Vereshchetin, Higgins,
Kooijmans,Rezek,Al-Khasawneh,Buergenthal; Convention, of the convictions and sentences o' the
LaGrand brothers after the violatioils referred to in
AGAINST:Judge Parra-Aranguren; paragraph (3) above had been established, the United
(2) (a) By thirteen votesto two, Sta.tesof America breachedits obligation to the Federal
Fiizds that the first submission of the Federal Republicof Germany andto the LaGrandbrothers under
Republicof Germanyis admissible; Article 36,paragraph2, ofthe'convention;

IN FAVOUR: President G~iillaume;Vice-President IN FAVOUR: President Guillaume; Vice-President
Shi; Judges Bedjaoui, Railjeva, Herczegh, Fleischhauer, Sli; Judges Bedjaoui, Railjeva, Herczegh, Fleischhauer,
Koroma, Vereshchetin,Higgins, Kooijmans, Rezek, Al- Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Khasawneh,Buergenthal; Kooijmans,Rezek,Al-Khasawneh,Buergenthal;
AGAINST:Judge Oda;
AGAINST:Judges Oda,Parra-Aranguren;
(b) By fourteenvotesto one, (5) By thirteen votesto two,
Finds that the second submission of the Federal Firzds that, by failing to take all measures at its
Republicof Germanyis admissible; disposalto ensurethat Walter LaGrandwas not executed
pending the final decision of the InternatioilalCourt of
IN FAVOUR: President Guillaume; Vice-President Justice in the case, the United States of America
Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,
Koroma, Vereshchetin, Higgins, Parra-Aranguren, breached the obligation incumbent upon it under the
Kooijmans,Rezek,Al-Khasawneh,Buergenthal; Order indicating provisional measures issued by the
AGAINST: Judge Oda; Court on 3March 1.999;
IN FAVOUR: President'Guillaume; Vice-President
(c) Bytwelvevotes to three, Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,
Firzds that the third submission of the Federal Koroma, Vereshchetin, Higgins, Kooijrnans,Rezek, Al-
Republicof Germanyis admissible; Khasawneh,Buergenthal;
IN FAVOUR: President Guillaume; Vice-President -
AGAINST:JudgesOda,Parra-Aranguren;
Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer. (6) Unanimously,
Koroma, Vereshchetin,Higgins, Kooijmans, Rezek, Al-
Khasawneh; Tah-e,snote of the commitment undertaken by the
AGAINST: Judges Oda, Parra-Aranguren, United States of America to ensure implementation of
Buergenthal; the specific measures adopted in performance of its
obligations under Article 36, paragraph 1 (b), of the
(4 By fourteen votesto one, Convention; and finds that this commitnient must be
Finds that the fourth submission of the Federal regarded as'meetiAgthe Federal Republic of Germany's
Republicof Germanyis admissible; recluestfor a generalassuranceof non-repetition;
IN FAVOUR: President Guillaume; Vice-President
(7) By fourteenvotes to one,
Shi; Judges Bedjaoui, Ran-jeva,Herczegh, Fleischhauer, Finds that should nationals of the Federal Republic
Koroma, Vereshchetin, Higgins, Parra-Aranguren, of Geilnaily noiletheless be sentenced to severe
Kooijmans,Rezek,Al-Khasawneh,Buergenthal; penalties, without their rights under Article 36,
AGAINST:Judge Oda; paragraph 1 (b), of the Convention having been

(3) By fourteenvotes to one, respected,the United States of America. by means of its
Finds that, by not informing Karl and Walter own choosing, shall allow the review and
LaGrand without delay following their arrest of their reconsiderationof the convictionand sentenceby taking
rights under Article 36, paragraph 1 (b), of the account of the violation of the rights set forth in that
Convention, and by thereby depriving the Federal Convention;
IN FAVOUR: President Guillaume; Vice-President
Republic of Germany of the possibility, in a timely
fashion, to render the assistance provided for by the Shi; JudgesBedjaoui, Ranjeva, Herczegh, Fleischhauer,
Convention to the individuals concerned, the United Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Statesof Americabreached its obligationsto the Federal Kooijmans,Rezek,Al-Khasawneh,Buergenthal;
Republicof Germanyand to the LaGrand brothersunder AGAINST:Judge Oda."
Article 36, paragraph 1;

IN FAVOUR: President Guillaume; Vice-President
Shi: Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Histor?,of theproceedings aid sub?nissio~~o sf the (4) that the United States shall provide Gcrmany an

Parties assurance that it will not repeat its unlawfi~lacts and
(paras. 1-12) that, in any f~~turecases of detention of or criminal
proceedings againstGernian nationals, the Unitcd States
The Court recalls that on 2 March 1999Germany filed will ensure in law and practice the effective exercise of
in the Registry of the Court an Application instituting tlie riglitsunder Article 36 of the Vienna Coiivention11
proceedings against the United State.s of America for Coiisular Relations. hi particular in cases involviiig tlie
"violations of the ViennaConvention on Consular Relations
[of 2:4April 19631(hereinafter referred to as the "Vienna death penalty, this requires the United States to provide
Convention"); and tliat, in its Application,Gei.manybased effective 'review of and reniedies for criminal
the jurisdiction of theCourt on Article 36, paragraph 1, of convictions impaired by a violation of the rights under
Article36."
the Statute of the Court and on Article I of .theOptional Onbehalfof'tl~eGovennnentoftl~eUuitedStutes,
Protocol concerning the . Conipulsory Settlement of
Disp.utes, which accompanies tlie Vienna Conve~ition "The United States of America respectfully requests
(hereinafter refelred to as the "Optional Protocol"). It the Courtto adjudgeand declare that:
furtherrecalls that on the sanieday the GermanGovernment (1) There was a breach of the United States
also filed a request for the indication of provisional obligationto Gemiany under Article 36, paragraph 1(b),

measures, and that, by an ~lrderof 3 March 19?9,tlie Court of the Vienna Conventionon Coiisular Relations.in tliat
indicated certain provisional nieasures. After pleadingsand the competent authorities of the United Statesdid not
certain documentshad been duly filed, public hzaringswere proinptly give to Karl aiid Walter LaGrand the
held from 13to 17November 2000. notification requiredby tliat Article, and that the United
A.tthe oral proceedings, the following final subinissions Stateshas apologizedto Germanyfor this breach, and is
were presentedby the Parties: taking substantial nieasures aimed at preventing ally
recurrence; and
G'nbehalfof the Goverizirtentof Geunaizv,
"The Federal Republic of Germany respectfully (2) All other claims and sublnissions of the Federal
requests the Court to adjudgeand declare Republic of Gelmany are dismissed."

(1) that the United States,by notinformingKarl and
Walter LaGrand without delay followingtheir arrest of History oj'tlle dispute
their riglits under Article 36, subparagraph1 (b), of the (paras. 13-34)
Vienna Convention on Consular Relations, and by In its Judgiilent, the Court begins by outlinilig the
depriving Gennany of the possibility of rendering
consular assistance, wliich ultimately resulted in the history of the dispute. It recalls that the brothers Karl and
Walter LaGrand - German nationals who had been
execution of Karl and Walter LaGrand, violated its permanently residing in the United States since
international legal obligations to Germany,,in its own childhood-were arrested in 1982 in Arizona for their
right and in its right of diplomatic protection of its involvenlent in aa attempted bank robbery,in the course of
nationals, under Articles 5 and 36, paragraph 1, of the wliich the bank manager was murdered and another bank
said Convention; employee seriously injured. In 1984, an Arizona court

(2) that the United States, by applying rules of its convicted both of murder in the first degree and otlier
domestic law, in particular the doctrine of procedural crimes, and sentenced them to death. The LaGrands being
default, which barred Karl and Walter LaGrand from German nationals, the Vienna Conventiorl on Consular
raising their claims un,der the Vienna Co:nventionon Relations required the competent authorities of the United
Consular Relations, and by ultimately executing them. States to inform them without delay of their right to
violated its international legal obligation -.o Germany communicate with the consulate of Germany. The United
under Article 36, paragraph2, of the ViennaConvention States acknowledged that this did not occur. In fact, the

to,give full effect to the purposes for which the rights consulate was only niade aware of the case in 1992by tlie
accorded under Article 36 of the said Cor~ventionare LaGrands theniselves, who had learnt of their riglits froni
intended; otlier sources. By that stage, the LaGrands were precluded
(3) that the United States, by failing to take all because of the doctrine of "procedural default" in United
measures at its disposal to ensure that Wa1::erLaGrand States law from challengingtheir convictionsand sentences
was not executed pentling the final decision of the by claiming that their rights under the Vienna Convention
had been violated.
hternational Court of Justice on the matter, violated its
international legal obligationto comply with the Order Karl LaGrand was executedon 24 February 1999.On 2
on Provisional Measures issuedby the Coult on 3 March March 1999,theday before the scheduled dateof execution
1999, and to refrain from any action which miglit of Walter LaGrand, Germany brought the case to the
interfere with the subject niatter of a dispute while InternationalCourt of Justice. On 3 March 1999,the Court
judicial proceedings are:pending; made an Order indicating provisional measures (a kindof

arid, pursuant to the foregoing iliternational legal interim injunction), stating inter alia that theUiiited States
ot)ligations, should take all nieasuresat itsdisposal1.ensure that WalterLaGrand was not executed pending a final decision of the German authorities"prevented Gern~anyfrom exercising its
Court. Onthat sameday, WalterLaGrandwas executed. rights under Art. 36 (1) (a) and(c) of the Convention" and
violated"the variousrights conferredupon the sendingState

Jzrrisdictiow of the Court vis-A-14sits nationals in prison, custody or detention as
(paras. 36-48) provided for in Art. 36 (1) (b) of the Convention". Germany
further alleges that by breaching its obligations toinfornl,
The Court observes that the United States, without the United States also violated individual rights conferred
having raised preliminary objectionsunder Article 79 of the on the detainees by Article 36, paragraph 1 ((I),second
Rules of Court, nevertheless presented certain objections to sentence, and by Article 36, paragraph 1 (b). Gernlany
thejurisdiction of the Court. Germany basedthejurisdiction accord.inglyclaims that it "was injured in the person of its
of the Court on Article I of the Optional Protocol to the
Vienna Convention on Consular Relations concerning the two nationals", a claim which Germany raises "as a matter
of diplomatic protection on behalf of Walter and Karl
CompulsorySettlementof Disputesof 24 April 1963,which LaGrand". The United Statesacknowledgesthat violationof
reads as follows: Article 36, paragraph 1 (b), has given rise to a dispute
"Disputes arising out of the interpretation or between the two States and recognizes that the Court has
application of the Convention shall lie within the jurisdiction under the Optional Protocol to hear this dispute
compulsory jurisdiction of the International Court of
insofar as it concerns Gernlany's own rights. Concerning
Justice and may accordinglybe brought before the Court Germany's claiinsof violation of Article 36,paragraph 1(a)
by an applicationmade by anyparty to the dispute being and (c), the United States however calls these claims
a Party to the present Protocol." "particularlymisplaced" on the groundsthat the "underlying
conduct complained of is the same" as the claiin of the
Withregard to Germany bjirst szrbrnissioir violation of Article 36, paragraph 1 (b). It contends,
moreover, that "to the extent that this claim byGennany is
(paras. 37-42)
The Court first examines the question of its jurisdiction based on the general law of diplomatic protection, it is not
within the Court'sjurisdiction" underthe Optional Protocol
with respect to the first submission of Germany. Germany because it "does not conceim the interpretation or
relies on paragraph 1 of Article 36 of the Vienna applicationof the Vienna Convention".
Convention,whichprovides: The Court does not accept the United States objections.
"With a view to facilitating the exercise of consular
functionsrelating to nationalsof the sendingState: The dispute between the Parties as to whether Article 36,
paragraph 1 (a) and (c), of the Vienna Convention have
(a) consular officers shall be free to communicate been violated in this case in consequence of the breach of
with nationals of the sending State and to have access to paragraph 1 (b) does relate to the interpretation and
them. Nationals of the sending State shall have the same application of the Convention. This is also true of the
freedom with respect to communicationwith and access dispute as to whether paragraph 1 (b) creates individual
to consularofficersof the sendingState; rights and whether Germany has standing to assert those

(b) if he so requests, the competentauthorities of the rights on behalf of its nationals. These are consequently
receiving State shall, without delay,iifonil the consular disputes within the meaning of Article I of the Optional
post of the sending State if, within itsconsulardistrict, aProtocol. Moreover, the Court cannot accept the contention
national of that State is arrested or committed to prison of the: United States that Germany's claim based on the
or to custody pending trial or is detained in any other individual rights of the LaGrand brothers is beyond the
manner. Any communication addressed to the consular court"^ jurisdiction because diplonlatic protection is a
post by the person arrested, in prison, custody or concept of customaly international law. This fact does not

detention shall be forwarded by the said authorities prevent a State party to a treaty, which creates individual
without delay. The said authorities shall inform the rights, from taking up the case of one of its nationals and
person concerned without delay of his rights under this instituting international judicial proceedings on behalf of
subparagraph; that national, on the basis of a generaljurisdictional clause
(c) consular officers shall have the right to visit a in such a treaty. Therefore the Court concludes that it has
jurisdiction with respect to the whole of Germany's first
national of the sending Statewho is in prison, custodyor
detention, to converse and correspond with him and to submission.
arrange for his legal representation.They shall also have
the right to visit anynational of the sending Statewho is Withregard to Germany b second and third sz~binissioi~s
in prison, custody or detention in their district in (paras. 43-45)
pursuance of a judgement. Nevertheless, consular
Although the United States does not challenge the
officers shall refrain from taking action on behalf of a Court's jurisdictionin regardto Germany's secondand third
national who is in prison, custody or detention if he submissions,the Court observesthat the third submissionof
expresslyopposes such action." Germany concerns issues that arise directly out of the
Germany alleges that the failure of the United States to
inform the LaGrand brothers of their right to contact the dispute between theParties before the Court over which the
Court has alreadyheld that it hasjurisdiction. and which arethus covered by Article I of the Optional Protocol. The The Courtdoes not agree with this argument.It observes
Court reaffirms, in this connection, what il said in its that, in the second submission, Geimany asks the Court to
Judgment in the Fisheries Jzrrisdictiorl case, where it interpretthe scope of Article 36, paragraph 2. of the Vienna
declared that in order to consider the dispute in all its Convention; the third submission seeks a finding that the

aspects, it inay also deal with a submission that "is one United States violated an Order issued by this Court
based on facts subsequent to the filing of the Application, pursuant to Article 41 of its Statute; and in Germany's
but arising directly out of the question which :isthe subject fourth submission, the Court is asked to determine the
matter of that Application.As such it fallswithin the scope applicable remedies for the alleged violations of the
of the Court's jurisdiction ..." (Fisheries Jurisdiction Convention. Although Gernlany deals extensively with the
(Federal Republic of Germrrtilv v. Iceland), Merits, practice of American courts as it bears on the applicationof
Judgrr~ertIt,.C.J. Reports 1974,p. 203, para. 72:).Where the the Convention, all three submissions seek to require the

Court has jurisdiction to decide a case, it also has Court to do no more than apply the relevant rules of
jurisdiction to deal with. submissions requesting it to internationallaw to the issuesin dispute between theParties
determine that an order indicating measures which seeks to to this case. The exercise of this function, expressly
pres1:rvethe rights of the Parties to this dispute has not beenmandated by Article 38 of its Statute, does not convert the
compliedwith. Court into a court of appeal of national criminal
proceedings.

ifitb!regard to Gerrizai~~lfourth subrtiissior? The United States also argues that Germany's third
(uaras. 46-48) submission is inadmissiblebecause of the manner in which
these proceedings were brought before the Court by
The United Statesobjects to thejurisdiction of the Court Germany. It notes that German consular officials became
over the fourth subinissior~insofar as it concerns a request aware of the LaGrands' casein 1992,but that the issue of
for assurances and guarantees of non-repetition.It contends the absence of consular notification was not raised by
that Germany's fourth submission "goes beyond any Germany until 22 February 1999,two days before the date
remedy that the Court car1or should grant, and should be
rejected. The Court's power to decide cases ...does not scheduled for Karl LaGrand's execution. Germany then
extetid to the power to order a State to provide any filed the Application instituting these proceedings, together
'guarantee' intended toconfer additional legal rights on the with a request for provisional measures, after normal
business hours in the Registry in the evening of 2 March
Applicant State ..The United Statesdoes not believe that it 1999, some 27 hours before the execution of Walter
can'betherole of the Court ...to imposeany otlligationsthat LaGrand.Germanyacknowledgesthat delay on the part of a
are additional to or that differ in character from those to claimant State may render an application inadmissible, but
which the United States consented when if ratified the maintains that international law does not lay down any
Vienna Convention". The Court considers that a dispute
regarding the appropriate remedies for the violation of the specifictime limit in thatregard. It contendsthat it was only
Convention alleged by Germany is a dispute that arises out seven days before it filed its Application that it became
aware of all the relevant facts underlying its claim, in
of the interpretation or application of the Convention and particular, the fact that the authorities of Arizona knew of
thus is within the Court's jurisdiction. Wher,: jurisdiction the Germannationalityof the LaGrandssince 1982.
exists over a disputeon aparticular matter,no separatebasis
for jurisdiction is required by the Court to consider the The Court recognizes that Germany may be criticized
remedies a party has requested for the bl-each of the for the manner in which these proceedings were filed and
obligation (Factory at Cll0n6~; P.C.I.J., Series A, No. 9, for their timing. The Court recalls, however, that
p. 22). Consequently, the: Court has jurisdiction in the notwithstanding its awareness of the consequences of
present case with respect to the fourth silbmission of Gemany's filing at such a late date, it nevertheless
considered it appropriate to enter the Order of 3 March
Genmany. 1999, given that an irreparable prejudice appeared to be
imminent. In view of these considerations, the Court
Adtizissibilihof Gerrrianj~bsubrriissions
(paras. 49-63) considers that Germany is now entitled to challenge the
alleged failure of the United States to comply with the
'Ule United States objects to the adnlissibility of Order. Accordingly, the Court finds that Germany's third
Germany's subn~issions on various grounds. First, the submissionis admissible.
United States argues that Germany's secon.d, third and The United States argues further that Germany's first
fourth submissionsare inadmissiblebecause Germany seeks submission, as far as it concerns its right to exercise

to have the Court "'playthe role of ultimate court of appeal diplomatic protection with respect to its nationals, is
in national criminal proceedings", a role which it is not inadmissible on the ground that the LaGrands did not
empowered to perform. The United States maintains that exhaustlocal remedies.The United Statesmaintainsthat the
many of Germany'sargum~eiitsi,n particularthose regarding alleged breach concerned the duty to infomi the LaGrands
the rule of "procedural default",ask the Coui-t"to address of their right to consular access, and that such a breach
and correct ...asserted violations of U.S. law and errors of could have been remedied at the trial stage, provided it was
judgment by U.S. judges" in criminal proceedings in raised in a timely fashion.

national courts. The Court notes that it is not disputed that the LaGrands meanil~gless".The United States argues that the underlying
sought to plead the Vienna Convention in United States conduct conlplained of by Gernlany is one and the same,
courts after they learned in 1992 of their rights under the namely, the failure to infonn the LaGrand brothers as
Convention; it is also not disputed that by that date the required by Article 36, paragraph I (b). Therefore, it
procedural default rule barred the LaGrands from obtaining disputes any other basis for Germany's claims that other

any remedy in respect of the violation of those rights. provisions, such as subparagraphs (a) and (c) of Article 36,
Counsel assigned to the LaGrands failed to raise this point paragraph I, of the Convention, were also violated. The
earlier in a timely fashion. However,the Court finds that the United States asserts that Germany's claims regarding
United States may not now rely on this fact in order to Article: 36, paragraph 1 (a) and (c), are "particularly
preclude the admissibilityof Gennany's first submission, as misplaced" in that the LaGrands were able to and did
it was the United States itself which had failed to cany out co~nmilnicatefreely with consular officials after 1992. In
its obligation under the Convention to inform the LaGrand response, Germany asserts that it is "commonplace that one

brothers. and the same conduct may result in several violations of
The United States also contends that Gernlany's distinct obligations". Germany further contends that there is
sub~nissionsare inadmissible on the ground that Gennany a causal relationship between the'breach of Article 36 and
seeks to have a standard applied to the United States that is the ultimateexecutionof the LaGrand brothers.It is claimed
differentfrom its own practice. that, had Germany been properly afforded its rights under
the Vienna Convention,it would have been ableto intervene
The Court considers that it does not need to decide in time and present a "persuasive mitigation case" which
whetlier this argument of the United States, if true, would
result in the inadmissibility of Germany's submissions. It "likely would havesaved" the livesof the brothers.
finds that the evidence adduced by the United States does Moreover, Germany argues that, due to the doctrine of
notjustify the conclusion that Gennany's own practice fails procedural default and the high post-conviction threshold
for proving ineffective counsel under United States law,
to conform to the standards it demands from the United Germany's intervention at a stage later than the trial phase
States in this litigation. The cases referred to entailed
relatively lightriminal penalties and are not evidence as to could not "remedy the extreme prejudice created by the
Gennan practice where an arrested person, who has not counsel appointed to represent the LaGrands". According to
been informed without delay of his or her rights, is facing a the United States, these Ger~nan arguments "rest on
severe penalty as in the present case. The Court considers speculiition"and do not withstandanalysis.
that theremedies for a violation of Article 36 of the Vienna The Court observes that the violation of paragraph 1 (b)

Convention are not necessarily identical in all situations. of Article 36will not necessarilyalwaysresult in the breach
While an apology may be an appropriate remedy in some of the other provisions of this Article, but that the
cases, it may in others be insufficient. The Court circunlstances of this case compel the opposite conclusion,
accordingly finds that thisclaiin of inadmissibility must be for the reasons indicated below. Article 36, paragraph 1,the
rejected. Court notes, establishes an interrelated regime designed to
facilitate the implementation of the system of consular
protection. It begins with the basic principle governing
Merits of Gel.rnuilybsubiitissioizs
(paras. 64-127) consular protection: the right of comnlunication and access
(Art. 36, para. 1 (a)). This clause is followed by the
Having determined that it has jurisdiction, and that the provision which spells out the modalities of consular
subn~issions of Germany are admissible, the Court then notification (Art. 36, para. 1 (b)). Finally Article 36,
tuimsto the merits of each of these four submissions. paragraph I (c), sets out the measuresconsularofficers may
take in rendering consularassistanceto their nationals in the
Gernlmzy b,fijstsz/bn~ission custody of the receiving State. It follows that when the

(paras. 65-78) sending State is unawareof the detentionof its nationalsdue
The Court begins by qooting Germany's first submission to the failure of the receiving State to provide the requisite
and observes that the United States acknowledges, and does consular notification without delay, which was true in the
present case during the period between 1982 and 1992,the
not contest Germany's basic claim, that there was a breach sending State has been prevented for all practical purposes
of its obligation under Article 36, paragraph 1 (h), of the from exercisingits rights under Article 36, paragraph 1.
Convention "promptly to inform the LaGrand brothers that
they could ask that a Gennan co~lsularpost be notified of Germany further contends that "the breach of Article 36
their arrest and detention". by the United Statesdid not only infringe upon the rights of
Germany as a State party to the [Vienna] Convention but
Germany also claims that the violation by the United also entailed a violation of the individual rights of the
States of Article 36, paragraph 1 (b), led to consequential LaGrartd brothers". Invoking its right of diplomatic
violations of Article 36, paragraph 1 (a) and (c). It points
out that, when the obligation to inform the arrested person protection, Gernlany also seeks relief against the United
without delay of his or her right to contact the consulate is States on this ground.The United States questions what this
disregarded, "the other rights contained in Article 36, additional claim of diplomatic protection contributes to the
case and argues that there are no parallels between the
paragraph 1, become in practice ii~elevant, indeed present case and cases of diplomatic protection involving paragraph 1,createsindividualrights forthe detained person
thet:spousalby a State of economic claims of its nationals. in addition to tlie riglits accordedto the sending State, and
The United States contends, furlhermore, that rights of consequently tlie reference to "rights" in paragrapli 2inust
consular notification and access under the Vienna
be read as applying not only to the rights of the sending
Conventionare rights of States,and notof individuals,even State, but also to the rights of the detained individual. The
though these rights may benefit individuals by permitting Court emphasizes that. in itself, the "procedural default"
Statesto offerthem consularassistance.It maintainsthat the rule does not violate Article 36 of the Vienna Convention.
treatment due to indivicluals under the C~nvention is The problem arises when the procedural default rule does
inextricably linked to and derived from tlie right of the not allow the detainedindividual to challenge a conviction
State, acting through its consular officer, to communicate and sentence by claiming, in reliance on Article 36,
with its nationals, and does not constitute a fundamental paragraph 1,of the Convention,that the competent national

right or a humanright. authoritiesfailed to complywith their obligatioiito provide
On the basis of tlie text of the provisions of Article 36, the requisite consular information "without delay", thus
paragraph 1.the Court cor~cludesthat Article 56. paragraph preventing tlie person froiii seeking and obtaining colisular
1,creates individual rights, which, by virtue of Article I of assistance from Lliesending State. Tlie Court finds that
the Optional Protocol, may be invoked in the Court by the under the circulnstances of the present case the procedural
national State of the detained person. These:riglits were default rule had the effect of preventing "full effect [from
being] given to tliepurposes for which the rights accorded
violated in the presentcase.
under this article are intended", and thus violated
Gernzarzyksecorld s~rbtnissiotz paragraph2 of Article 36.
(paras. 79-9I)
Ger~nany :rtlzirc!srrh~~rission
The Court then quotes the second of Germany's (paras. 92-116)
submissions.
Gerinany argues that, under Article 36, paragraph 2, of The Court then quotes the third of Germany's
subniissions, and observes that, in its Memorial, Gerniany
the Vienna Convention "the United States is under an contended that "[p]rovisional [mleasures indicated by the
obligation to ensure that its municipal 'laws and InternationalCourt of Justice [were]bindingby virtueof the
regulations ...enable full effcct to be givcn to the purposes
forwhich the rights accordedunder this ai-ticleare intended' law of the United Nations Charter and the Statute of the
[and.that it] is in breach of this obligation Isy upholding Court". Itobserves that in support of its position, Gemiany
rules of domestic law which make it i~iipossible to developeda number of argumentsin which it referred to the
succ.essfully raise a violation of the right to consular "principle of effectiveness", to the "procedural
noti:ticationin proceeding:;subsequent to a conviction of a prerequisites" for the adoption of provisional measures, to
the binding nature of provisional measures as a "necessary
defendant by ajury". Gerrnanyemphasizesthat it is not the consequence of the bindingness of the final decision", to
"procedural default" rule as such that is at issue in the "Article 94 (I), of the United Nations Charter", to
present proceedings,but the manlier in whichit was applied
in that it "deprived the brothersof the possibilityto raise the "Article 41 (I), of the Statute of the Court" and to the
violations of their right to consular notification in U.S. "practice of the Court". The UiiitedStatesarguesthat it "did
criminal proceedings". In the view of tlie LJnitedStates: what wascalledforby the Court's 3March Order,giventhe
"[tlhe Vienna Convention docs not require States Party to extraordinary and unprecedented circumstances in which it
create a national lawreinetlypermitting iiidivitlualsto assert was forced to act". It further states that "[tlwo central
factors constrainedthe United States ability to act. The first
claims ilivolving the Convention in criminal proceedings"; was the extraordinarily short time between issuance of the
and "[ilf there is no obligation under the C!onventionto Court's Orderand the time set for the execution of Walter
crea.tesuch individualremedies in criminalproceedings,the
rule of procedural default - requiring that claims seeking LaGrand ... The second constraining factor was the
sucliremedies be asserted at an appropriatelyearly stage - character of the United States of America as a federal
cannotviolate the Convention". republic of divided powers." The United States also alleges
that the "terms of the Court's 3March Order did not create
Tlie Court quotes Article 36, paragrapli2, of the Vienna legal obligations binding on [it]". It argues in this respect
Convention which reads as follows: "The rights referred to that "[tlhe languageused by the Court in the key portions of
in paragraph 1 of this article shall be exercised in its Order is not the language used to create binding legal
con-Formitywith the laws and regulations of the receiving
State,subject to theproviso,however, that thesaid laws and obligations" and that "the Court does not need here to
regulations must enable full effect to be given to the decide tlie difficult and controversial legal question of
purposes for which therights accorded to under this article whether its orders indicatingprovisionalmeasureswould be
capable of creating internatioiiallegal obligations if worded
are intended." It finds that:it cannot accept the argumentof in mandatory ...terms". It neverthelessmaintains that those
the United Stateswhichproceeds, in part, on the assumption 01-deiscallnothave such effects and, in supportof that view,
that paragraph 2 of Article 36 applies only to the rights of developsargumentsconcerning"the languageand history of
the sending State and not also to those of the detained Article 41 (1) of the Court's Statuteand Article 94 of the
individual. The Court determines that Article 36,Charter of the United Nations", the "Court's and State the French and English texts of the latter are "equally
practice under these provisions", and the "weight of authentic". The sameis equallytrue of the Statute.
publicists' commentary". Lastly, the United States states In cases of divergence between the equally authentic
that in any case, "[blecause of the press of time stemming versions of the Statute, neither it nor the Charter indicates
from Germany's last-minute filing of the case, basic
priilciples fiindainental to the judicial process were not how to proceed. In the absence of agreement between the
parties in this respect, it is appropriate to refer to paragraph
observed in connection with the Court's 3 March Order" 4 of Article 33 of the Vienna Convention on the Law of
and that "[tlhus, whatever one might conclude regarding a Treaties, which in the view of the Court again reflects
general iule for provisional measures, it would be customary internatioilal law.This provision reads "when a
anomalous - to say the least- for the Court to construe comparison of the authentic texts discloses a difference of
this Order as a sourceof binding legal obligations". meaning which the application of Articles 31 and 32 does

The Court observes that the dispute which exists not remove the meaning which best reconciles the texts,
between the Parties with regard to this point essentially having regard to the object and purpose of the treaty, shall
concernsthe interpretationof Article 41,which has been the be adopted". The Court therefore goes on to consider the
subjectof extensivecontroversyin the literature.It therefore object and purpose of the Statute together with the context
proceeds to the interpretation of that Article. It does so in ofArticle 41.
accordance with customary international law, reflected in
Article 31 of the 1969 Vienna Convention on the Law of The object and purpose of the Statute is to enable the
Court to fulfil the functions provided for therein. and in
Treaties. According to paragraph 1 of Article 31, a treaty particular, the basic function of judicial settlement of
must be interpreted in good faith in accordance with the international disputes by binding decisions in accordance
ordinary meaning to be given to its terms in their context with Article 59 of the Statute. It follows from that object
and inthe lightof the treaty's objectandpurpose. and purpose, as well as from the terms of Article 41 when
Thc French text of Article41 reads as follows: read in their context, that the power to indicate provisional

"1. La Cour a le pouvoir d'itzdiqzrer,si elle estime measures entails that such measures should be binding,
que les circonstances I'exigent, quelles mesures inasmuchas the powerin questionis based on the necessity,
conservatoires du droit de chacun doivent &treprises A when the circumstances call for it, to safeguard, and to
titreprovisoire. avoidprejudice to, the rights of the parties asterminedby
2. En attendant lYarr&d tkfinitif, l'indication de ces the final judgment of the Court. The contention that
provisional measures indicated under Article 41 might not
mesures est immtdiatement notifite aux parties et au be binding would be contrary to the object and purpose of
Conseilde skcuritt." (Emphasisadded.)
The Court notes that in this text, the tenns "indiquer" that Article. A related reason which points to the binding
and "l'indication" maybe deemed to be neutral as to the character of ordersmade under Article 41 and to which the
mandatory character of the measure concerned; by contrast Court attaches importance, is the existence of a principle
which has already been recognized by the Permanent Court
the words "doivent &tre prises" have an imperative of International Justice when it spoke of "the principle
character. universally accepted by internatioilaltribunals and likewise
For its part, the English version of Article 41 reads as laid down in many conventions ...to the effect that the
follows:
parties to a case must abstainfrom any measure capable of
"1. The Court shall have the power to indicate, if it exercising a prejudicial effect in regard to the execution of
coilsidersthat circumstancesso require, any provisional the decision to be given, and, in general, not allow any step
measures which ought to be taken to preserve the of any kind to be taken which 1nigb.taggravateor extendthe
respectiverights of eitherparty. dispute" (Electricity Cotnpm~y qfSofiaundBulgaria, Order
3. Pendingthe final decision,notice of the measures of 5 December 1939, P.C.I.J., Series A/B,No. 79, p. 199).
suggested shall forthwith be given to the parties and to The C!ourtdoes not consider it necessary to resort to the

the SecurityCouncil." (Emphasisadded.) preparatory work of the Statute which, as it nevertheless
According to the United States, the use in the English points out, does not preclude the conclusion that orders
version of "indicate" insteadof "order". of "ought" instead under Article41 havebinding force.
of "must" or "shall", and of "suggested" instead of The Court finally considers whether Article 94 of the
"ordered'',is to be understood as implying that decisions United Nations Charter precludes attributing binding effect

underArticle 41 lack mandatoryeffect. It might howeverbe to orders indicatingprovisionalmeasures.That Article reads
argued, having regardto the fact that in 1920the French text as follows:
was the original version, that such terms as "indicate" and "1.Each Member of the United Nations undertakes
"ought" have a meaningequivalentto "order" and "must" or to complywith the decision of the Intel-nationalCourt of
"shall". Justice in any case to which it is a party.

Finding itself faced with two texts which are not intotal 2. If any party to a case fails to perform the
harmony, the Court first of all notes that according to obligations incumbent upon it under a judgment
Article 92 of the Charter, the Statuteforms an integralpart renderedby the Court,the otherparty may haverecourse
of the present Charter". Under Article 111 of the Charter, to the Security Council, which may, if it deems necessary, inake recommendations or clecide upon fourth submission has been so worded "as to ...leave the
measurestobe taken togive effect to thejudgment." choice of ineans by which to implement the remedy [it
seeks]to the United States".
The Court notes that the question arises as to the
inear~iilgto be attributed to the words "the decision of the In reply, the United States argues as follows:
InternatioilalCourtof Justice" in paragraph 1of this Article; "Gennany's fourth subtnission is clearly of a wholly
it observes that this warding could be understood as different nature than its first three submissions.Each ofthe
referring not merely to the Court'sjudgment!; butto any first three submissions seeksajudgment and declaration by
decision rendered by it, thus including orders indicating the Court that a violation of a stated international legal
provisional measures. It could also be intcrpreted to mean obligation has occurred. Such judgments are at the core of

oilly judgilients rendered by the Court as provided in the Court's function, asan aspect of reparation.In contrast,
paragraph 2 of Article 94. In this regard, the fact that in however, to the character of the relief sought in the first
Artides 56 to 60 of the Court's Statute, both the word three submissions, the requirement of assurances ofnon-
"decision" andthe word "judgment" are used does little to repetition sought in the fourth subn~issionhas no precedent
clarifj the matter. Under the first interpretationof paragraph in the jurisprudence of this Court and would exceed the
1of Article 94, the text of theparagraph woull confirm the Court's jurisdiction and authority in this case. It is

binding nature of provisional measures; whereas the second exceptional even as a non-legal undertaking in State
interpretation would in no way preclude their being practice, and it would be entirely inappropriatefor the Court
accorded binding forceunclerArticle 41 of the Statute. The to require such assuranceswith respect to the duty toillforin
Court accordingly concludes that Article 94ofthe Charter undertaken inthe Consular Conventionin the circumstances
does not prevent orders made under Article 41 from having of this case." It poiiltsout that "U.S. authorities are working
a binding character. In short, it is clear that none of the energetically to strengthen the regime of consular
sources of interpretation referredto in the releirantArticles notificationatthe stateand local leveltl~roughoutthe United

of the Vienna Convention on the Law of Treaties, including States, in orderlo reduce the chances of cases suchas this
the preparatorywork, contradict the conclusionsdrawnfrom recurring". The United States further observes that: "[elven
the terins of Article 41 read in their context and in the light if this Court wereto agree that, asa result of the application
of the object and purpose of the Statute. Thu.s,the Court of procedural default with respect to the claims of the
reaches the coilclusion that orders on provisional measures LaGrands, the United States coinmitted a second
under Article41 have binding effect. internationallywrongful act,it shouldlimit thatjudgment to
the application of that law in the particular case of the
T'he Court then considers the question whether the
United States has complied with the obligation incumbent LaGrands. It should resist the invitation to require an
upon it as a result of the Order of3 March 1999. absolute assurance asto the application of US domestic law
After reviewing the steps takenby the authorities of the in all suchfuturccases. The impositionof such an additional
Unites States (the State Department, the United States obligation on the United States would ..be unprecedented
in internationaljurisprudence andwould exceed the Court's
So1ic:itorGeneral, the Gow:rnor of Arizona, and the United authorityandjurisdiction."
States Supreme Court) with regardto the 0rde:r of 3 March
1999,the Court concludes that the various competentUnited The Court observes that in its fourth submission
States authorities failedto lake all the stepsthey could have Germany seeks several assurances. First it seeks a
taker1to give effect to theOlrder. straightforward assurance that the United States will not
repeat its unlawful acts. This request does not specify the
T'heCourt obseives finally that in the third submission means by which non-repetition is to be assured.
Germanyrequests the Court toadjudgeanddecl.areonlythat Additionally, Germany seeks from theUnited Statesthat "in
the United States violated its inter~~ationallegal obligation
to coinply with the Order 'of3 March 1999; it contains no any future cases of detention of or criminal proceedings
other request regarding that violation.Moreover, the Court against German nationals, the United States will ensure in
poin1:sout that the United States was under great time law and practice the effective exercise of the rights under
pressure in this case, due to the circumstatlces in which Article 36 of the Vienna Convention on Consular
Gei~nanyhad instituted the proceedings. The Court notes Relations". The Court notes that this request goes further,
for, by referring to the law of the United States,it appearslo
1nore:overthat at the time when the United States authorities require specific measures as a means of preventing
took their dccision the question of the binding character of
orders indicatingprovisional measures hadbeen extensively recurrence. Germany finally requeststhat "[iln particular in
discussed in the literature, but had not been s,ettledby its cases involving the death penalty, this requires the United
jurisprudence. The Court would have taken 1:hesefactors States to provide effective review of and remedies for
into consideration had Germany's subtnissior~included a criminal convictions impaired by a violation of the rights
under Article 36".The Court observesthat this request goes
claim for indemnification. even further, since it is directed entirely towards securing
specificineasuresin cases involvingthe deathpenalty.
Gel-rtrcrrzy,ourtlrslibrilission
(paras. 117-127) In relation to the general demand for an assurance of
non-repetition, the Court observes thatit has been infonned
Finally, the Court considers the fourth 0:' Gennany's by the United States of the "substantial measures [which it
subnlissions and observes that Germany point:;out that itsis taking] aimed at preventingany recurrence" of the breach by taking account of the violation of the rights set forth in
ofArticle 36,paragraph 1(b). the Convention. This obligation can be canied out in
'The Court notes that the United States has various ways. The choice of means must be left to the
acknowledged that, in the case of the LaGrand brothers, it United States.

did not cotnply with its obligations to give consular
notification. The United States has presented an apology to
Gennany for this breach. The Court considers however that In a short declaration, the President recalls that
an apologyis not sufticient inthis case, asit would not be in subparagraph (7) of the operative part of the Judgment
other cases where foreign nationals have not been advised
without delay of their rights under Article 36, paragraph 1, responds to certain submissions by Germany and hence
of the Vienna Convention and have been subjected to rules only on the obligationsof the United States in cases of
severe penalties imposed upon German nationals. Thus,
prolonged detention or sentenced to severe penalties. In this subparagraph (7) does not address the position of nationals
respect, the Court has taken note of the fact that the United of other countries or that of individuals sentenced to
States repeated in all phases of these proceedings that it is penalties that are not of a severe nature. However, in order
canying out a vast and detailed programme in order to
ensure conlpliance by its competentauthoritiesat the federal to avoid any ambiguity, it should be made clear that there
as well as at the state and local levels with its obligation can be no question of applying an a coiztr(triointerpretation
under Article 36 of the Vienna Convention. The United to thisparagraph.

States has provided the Court with information, which it Separate opiilion of Vice-President Shi
considers important, on its programme. If a State, in
proceedings before this Court, repeatedly refers as did the Vice-PresidentShi states that he voted with reluctancein
United States to substantial activities which it is carrying favour of paragraphs (3) and (4) of the operativepart of the
out in order to achieve compliance with certain obligations Judgment (dealing with the merits of Germany's first and
under a treaty, then this expresses a commitinent to follow
through with the efforts in this regard. The programme in second submissions respectively), as he believes that the
court:'^findings in these two paragraphs were based on a
question cei-tainlycannot provide an assurance that there debatable interpretation of Article 36 of the Vienna
will never again be a failure by the United Statesto observe Convention. While he agrees with the Court that the United
the obligationof notification under Article 36 of the Vienna States violated its obligationsto Germany under Article 36,
Convention. But no State could give such a guarantee and paragraph 1, of the Convention, he has doubts as to the
Germany does not seek it. The Court considers that the Court's finding in these paragraphs that the United States
commitment expressed by the United States to ensure
impleinentation of the specific measures adopted in alsoviolatedits obligationsto the LaGrand brothers.
The Court's conclusionthat Article 36, paragraph 1 (b),
performance of its obligations under Article 36, paragraph of the Vienna Conventioncreates individualrights relies on
1(b), must be regarded as meeting Germany's request for a the rule that if the relevant words in their natural and
general assuranceof non-repetition. ordinary meaning make sense intheir context, that is the end
The Court then examinesthe other assurancessought by
Germany in its fourth submission. The Court observes in of the:matter and there is no need to resort to other methods
of interpretation. However, the Court has previously stated
this regard that it can determine the existence of a violation that this rule is not an absolute one, and that where such a
of an international obligation. If necessary, it can also hold method of interpretation results in a meaning incompatible
that a domestic law has been the cause of this violation. In with the spirit, purpose and context of the clause or
the present case the Court has made its findings of instrument in which the words are contained, no reliance
violations of the obligations under Article 36 of the Vienna can be validly placed on it. One author has also stated that
Convention when it dealt with the first and the second
submission of Gennany. But it has not found that a United ' "It is not clarity in the abstract which is to be ascertained,
but clarity in relation to particular circumstances and there
Stateslaw, whether substantiveorprocedural in character, is are few treaty provisions for which circumstancescannot be
inherently inconsistent with the obligations undertaken by envisagedin which their claritycouldbe put in question".
the United States in the Vienna Convention. In the present The Vice-Presidentquestions whether it is proper for the
case the violation of Article 36, paragraph2, was caused by Court to place so much emphasison the purported clarity of
the circumstances in which the procedural default rule was
applied, and not by the rule as such. However, the Court language of Article 36, paragraph 1 (b). He considers the
considers in this respect that if the United States, effect of wording in the title to the Vienna Convention,and
in thr: Preamble, the cl~apeauto Article 36, and Article 5.
notwithstanding its commitment referred to above, should He then refers in some detail to the travalu:pr~purutoires
fail in its obligation of consularnotification to the detriment relating to Article 36 of the Convention, and finds that it is
of German nationals, an apology would not suffice in cases not possible to conclude from the negotiating history that
where the individuals concerned have been subjected to
prolonged detention or convicted and sentenced to severe Article 36, paragraph 1(b), was intended by the negotiators
penalties. In the case of such a conviction and sentence, it to create individualrights. He considers that if one keeps in
mind that the general tone and thrust of the debate of the
would be incumbent upon the United States to allow the entire Conference concentrated on the consular hnctions
review and reconsideration of the conviction and sentenceand their practicability, the better view woulcl be that no March 1999 together with the Application instituting
creation of any individual rights independent of rights of proceedings. Notwithstanding the delicate position the
Stateswas envisagedby the Conference. Court was in (as Walter LaGrand's execution in the United

The Vice-President a,dds that the final operative States was imminent), the Court should have adheredto the
paragraph of the Judgmentis of particular significancein a principle that provisional measures are orderedto preserve
case where a sentence of death is imposed, which is a rights of States,and not in~li~~idzrn.p,osedto an iinmiilent
punishment of a severe an.dirreversible nature. He states breach whichis irreparable. The Court thuserrcdin granting
that every possible measure should therefore be taken to the Order indicatingprovisioilalmeasures.

prevent injustice or an error in conviction or sentencing,and Having identified the accumulated errors and their
that out of this consideration, he voted in favour of this impact on the present case, Judge Oda then meiltions five
paragraph. issues thatillform his view of the case and notes the errors
in the Court's Judgment. Fi~:rt,he observes that the United
Disserlting opinion ofJudge Oda States has already admitted its violatioil of the Vienna
Convention's requirement of prompt consular notification.
Judge Oda voted against all but two of the Second, he sees no link between this admitted violatioil of
subparagraphs of the operativepart of the Courl'sJudgment
in this case, as he objects to the caseas a whole. He thinks the Convention and the imposition of the death penaltyin
the case of the LaGrands. Third,he coilsidersthat the non-
that the Court is making an ultimate error on top of an compliance.if any, with the Order of 3March 1999bears no
accurnulation of earlier errors: first by Germany, as relation to the alleged violation of the Convention.For~rtl~,
Applicant; secondby the United States, as Respondent; and he notes that individuals of the sendingand receiving States
third by the Court itself. should be accorded equal rightsand equal treatment under
Judge Oda states that Germany, in its Application
the Convention. Firzall~~,e believes that the Court has
instituting proceedings, based its claims on alleged confused the right,if any,accordedunder the Conventioilto
violations by the United States of theViennaConventionon arrested foreignnatioilalswith the rights offoreignnationals
Consular Relations.In his opinion, thatapproacl is different to protectioil under general international law or other
from the one later adopted by Germany, basedon claims of treaties or conventions, and, possibly, even with huinail
a dispute between it and thr:United States arising out ofthe rights.
interpretation or application of the said Convention, over
which claims the Court would have jurisdiction under the Judge Oda notes his objection to five of the seven
subparagraphs of the operative part of the Judgincnt.First,
Optional Protocol accompa~nying the Convention. He thinks Judge Oda states that he voted in favour of the Court's
that this is, in fact, a case of unilateralica1:ionmade in determinatioilthat it hasjurisdictioil to entertainGermany's
reliance upon subsequent consent to the Court's jurisdiction Application, only because the United States did not raise
by the respondent State. preliminary objections to the Application. He emphasizes,
Judge Oda submits that at no time in the almost two
however, that the Court's jurisdiction doesnot extend to
decades between the arrest and conviction of the LaGrand Germany's submissions subsequent to the filing of its
brothers and the submissioriof an ApplicationI:Othis Court Application.
did (jemiany or the United States consider there to be a With regard to the seco~ldsubparagraph, Judge Oda
dispu.te in existence between them concerning the reiterates his view that, while the Court might entertain
interpretation or application of the Vienna Convention. Germany's Application, the question of admissibility of
Judgc Oda finds it surprising that, after such a lengthy
period of time, Germany would file its Application each subnlission presented subsequentlyto the Application
should not havc been raised, even though the United States
unilaterally, as it did. Aeiconsequence, it was oilly after did not raise preliminary objections in connection with
Gennany instituted the proceedings that the United States admissibility.
learned that a dispute existed between the two countries. Third,Judge Oda disagreeswith the Court's findingthat
Judge Oda expresses the fearthat the Court's acceptance of
the Application in this case will in future leati States that certain sections of Article 36 of the Vienna Convention
have accepted the compullsoryjurisdiction o:Fthe Court, confer rights on individualsas well as States.I11this context,
either under the Court's Statute or the optiorial protocols he points the reader to the separate opinion of Vice-
President Shi,with whose viewshe fuillyagrees.
attached to multilateral treaties, to withdraw their Fourth, Judge Oda asserts that the Vienna Conveiltion
acceptance. does not afford greater protection or broader rights to
Judge Oda fu~rtherstates that the United States erredby
failing to respond appropriately to Germany's Application. nationals of thesending State than to those of the receiving
In his view the United States prior to the submission of its State and, accordingly, he disagrees with the Coui-t's
holding that the exercise of the procedural default ruleby
Counter-Memorial should have lodged objections to the American courts was implicated in any violation of the
Court's jurisdiction in the present case on gro-undsakin to Vienna Convention.
those!expressed above.
Judge Oda also notes that the Court erredir.accedingto Fijih. Judge Oda expresses the view that the Court
Gerniany'srequest for provisional measures, submittedon 2 should not need to voice an opinion as to whether orders
indicating provisional measures are binding, as the issueisfar removed from the violation of the Vienna Convention, 5. Thispositionnotwithstanding, he emphasized thathe
the main issue of the present case. He further disagrees with strongly subscribesto the notion that everyone is entitled to
the Court's finding that such orders do have binding effect benefit from judicial guarantees, including tlie right to
and also that the United States did not comply with the appeal a conviction and sentence.
Court's Orderof 3 March 1999. 6. On the issue of the binding nature of provisional

Sixth, while Judge Oda believes tlie Court should say measures, Judge Koroma reasoned that the finding of the
nothing in its Judgrnent pertaining to assurances and Court on this should have been mainly limitedto the Order
guarantees of non-repetition of violations of the Vienna made on 3 March 1999as that was the issue in dispute. For
Convention, he explains that he voted in favour of this him, the binding nature of such Orders in general cannot be
subparagraphas it "cannot cause any harm". in doubt, give11their purpose and object to protect and
preserve the rights and interests of the parties in a dispute
Fincrlly,Judge Oda notes his total disagreementwith the befort:the Court,pendingthe Court's final decision. In other
final subparagraph of the operative part of the Judgment,
which goes far beyond the question of the alleged violation words, an order does not prejudge the issue raised in the
of the Vienna Conventionby the United States. request. Nor, in his view, should the Court's jurisprudence
on this issue be considered in doubt. As far as he is
concerned, there should not be any linguistic ambiguity in
Separ-ateopiniort of Judge Koroina the provision, nor any hndamental misunderstanding as to
1. In his separate opinion, Judge Koroma stated that its purpose and meaning. Doubts should therefore not be
although he supported the findings of the Judgment, he has
cast on the legalvalue of previousorders,albeitunwittingly.
riiisgivings with regard to certain issues, particularly since 7. Finally, Judge Koroma pointed out that with respect
tliey also form part of thei.yositiJ: to opt:rative paragraph 128 (7) of the Judgment, everyone,
2. With respect to the procedural default rule, which, irrespective of nationality, is entitled to the benefit of
according to Germany, by its Application violated the hndamental judicial guaranteesincluding the riglitto appeal
international legal obligation to Germany borne by the against or obtainreview of a convictionand sentence.

United States, Judge Koroma finds it inconsistent and
untenable for the Court to hold that "it:has not found that a Separate opinion of Judge Parra-Araagursrz
United States law, whether substantive or procedural in
character, is inherently inconsistent with the obligations Judge Parra-Arangurenvoted againstparagraph 128(1).
undertaken by the United States in the Vienna Convention", (2) (a) of the Judgment because there is no dispute between
but that "[Iln the present case the violation of Article 36, the Parties as to the breach by the United States of Article
paragraph 2, was caused by the circumstances in which tlie 36, pa.ragraph1 (b), of the Vienna Convention on Consular
Relations. Since the existence of a dispute is an "essentially
procedural default rule was applied, and not by the rule as
such". prelindnary" question, in his opinion the Court does not
3. In Judge Koroma's view, the rights referred to in have jurisdiction on this point under Article I of the
Article 36, paragraph 1,of the Convention are the duties of Optional Protocol of the said Vienna Convention.
the receiving State toinfonii pro~nptlythe relevant consular FurthermoreJudge Parra-Arangurenconsiders that the claim
post of a detention or arrest, the duty to forward made by Germany in its third submissiondoes not arise out
of the interpretationof the Vienna Conventionbut of Article
communicationby a detainedforeignnationalpromptly, and 41 of the Statute of the Court. For this reason he concludes
the duty ofprompt consularassistancefor a detained person.
In his view, none of these rights were violated by the that the Court does not have jurisdiction to decide this
procedural default rule or by its application. It therefore matter on the basis of the Optional Protocol. Consequently
seems odd to hold that a violation of Article 36, paragraph Judge Parra-Aranguren voted against paragraph 128 (I), (2)
2, was caused by the application of the rule and not by the (a), (2)(c)and (5) of the Judgment.

rule as such.
4. In his view, the real issue which tlie Court should Dissenting oyiizion of J~rdgeBuergeittltal
have determinedwas not whetherthe proceduraldefaultrule Judge Buergenthal dissents with regard to the
was the cause of the breach of the obligations, but rather admissibility of Germany's third submission relating to the
whether the obligationsowed to Geniiany were breached as
Order of 3 March 1999. He considers that the Court should
a result of the non-performance of the relevant obligations have ruled thatsubmissioninadmissible.
under the Convention, irrespective of a law, which, in any In JudgeBuergenthal's view,Gemany's justification for
case, the Court had found not to be inconsistent with the its last-minute request seeking provisional measures, which
obligations. prompted the Court to issue the 3 March Order withoutgiving the United States a11opportunity to be heard, was litigation strategy amounting to procedural misconduct
based on factual allegations by Gernlany that do not highly prejudicial to the rights of the United States as a

withstand scnitiny in light of the informationnow beforethe party tothis case. Germany's strategy deprivedthe United
Court. States of procedural fairness and is incompatible with the
Although the Court had no way of knowing this to be so sound administration of justice. See case concerning
at tht: time it issued the Order, this infonnation justifies Legalit?, of Use of Force (Yugoslovin v. Belgium)
holding the third submission to be inadmissible. Such a Provisional MeasuresO , rderof 2 June1999,I.C.J.Reports
decision would ensure that Germany not benefit from a 1999,para.44.