INTERNATIONAL COURT OF JUSTICE
LAGRAND CASE
(Germany v. United States of America)
MEMORIAL
OF THE
FEDERAL REPUBLIC OF GERMANY
Volume I
(Text of the Memorial)
16 September 1999
TABLE OF CONTENTS
VOLUME I
PART ONE: INTRODUCTION 1
PART TWO: STATEMENT OF FACTS 9
PART THREE: JURISDICTION AND ADMISSIBILITY 19
I. The subject-matter of the present dispute 19
II. The legal bond establishing the jurisdiction of the Court in the present
Case 21
III. The scope of the Court's jurisdiction under Article I of the Optional
Protocol 23
IV. Preconditions of the jurisdiction of the International Court of Justice
under Article I of the Optional Protocol 27
1. The existence of a "dispute" 27
a) The meaning of the term "dispute" 27
b) The individual issues in dispute between the parties 30
(1) There exists a "dispute" about the
interpretation and application
of Article 36 (1) of the Vienna Convention 30 (2) There exists a "dispute" about the application
and interpretation
of Article 36 (2) of the Convention 34
(3) There exists a dispute about the legal effect
of the Court's Order on Provisional Measures of
3 March 1999 and the consequences arising
therefrom 35
(4) There exists a "dispute" with regard to the
remedies owed
for the violation on the part of the United States
of its
international legal obligations 39
2. The existence of a dispute "arising out of the interpretation or application
of the [Vienna] Convention" on Consular Relations 40
a) Introductory remarks 40
b) The dispute concerning Article 36 (1) and Article 36 (2) of the Convention
43
c) Remedies owed for the violation of the Vienna Convention falling
within the scope of Article I of the Optional Protocol 44
d) The dispute concerning the conduct of the United States vis-à-vis the Court's
Order
of 3 March 1999 46
3. Conclusion 51
V. The admissibility of the claims brought by Germany 51
1. The timing of the German application 52
2. The German application has not become moot due to subsequent developments 57
3. The nationality of Karl and Walter LaGrand 59
VI. Conclusion 61
PART FOUR: OBLIGATIONS BREACHED BY THE UNITED STATES
63
I. Breaches of Article 36 of the Vienna Convention on Consular Relations
641. Omission of advice to German nationals on their right to consular access in
violation
of Article 36 (1) (b) of the Convention 65
2. Resulting breaches of Articles 36 (1) (a) and (c) of the Convention 70
3. Breach of Article 36 (2) of the Vienna Convention through application
of the municipal law doctrine of procedural default 71
a) Interpretation of Article 36 (2) of the Vienna Convention 71
b) The insufficiency of United States law 75
(1) The rule of procedural default in U.S.
domestic law 76
(2) The application of the doctrine of procedural
default in the case of the LaGrand brothers and
similar cases regarding Article 36 (2)
of the Vienna Convention 83
(3) Impossibility of suits by foreign governments
88
(4) Conclusion 88
c) The existence of "prejudice" 90
(1) The burden of proof 91
(2) If properly informed of their rights, the
LaGrands would have sought
and received consular assistance 92
(3) The United States' violation of the Vienna
Convention prevented
essential mitigating evidence from being
presented during sentencing 95
(i) The role of mitigating evidence in U.S. death penalty litigation 95
(ii) The absence of critical mitigating evidence in the LaGrands' cases
98
(4) The United States' violation of the Vienna
Convention prevented
Germany from obtaining effective trial counsel
for its nationals. 103 (i) The importance of competent, experienced
counsel
in U.S. death penalty litigation 103
(ii) The LaGrands' ineffective trial counsel 106
d) The particular responsibility of the sentencing State in death penalty cases
111
e) Conclusion 112
II. Violations of the rights of aliens resulting from the breaches
of the Vienna Convention 113
1. The law of diplomatic protection 114
2. The right to consular advice as an individual right of foreign nationals 116
a) Interpretation of Article 36 (1) (b) of the Vienna Convention 117
b) Travaux préparatoires of the Vienna Convention on Consular Relations 120
(1) Discussions within the ILC (1960-1961) 121
(2) Discussions at the Vienna Conference on
Consular Relations 123
c) The UN Declaration on the human rights of aliens 127
d) Recognition of the individual right to consular advice by United States
domestic law 130
3. Conclusion 135
III. Non-observance by the United States of the Order on Provisional
Measures
of 3 March 1999 136
1. Introduction 136
2. Orders indicating Provisional Measures are binding on the parties 136
a) The principle of institutional effectiveness 137
b) Procedural prerequisites for the adoption of Provisional Measures 139
c) Binding force of Provisional Measures as a necessary corollary to the
binding force
of the final judgment 140 d) Article 94 (1) of the United Nations Charter establishes an obligation to
comply
with Provisional Measures 142
e) Article 41 (1) of the Statute of the Court establishes an obligation to the
same effect 143
(1) Ordinary meaning 144
(2) Context 146
(3) Object and purpose 149
(4) The other authentic languages 151
(5) The travaux préparatoires provide evidence
in support of the binding character 153
f) The practice of the Court supports the binding character of Provisional
Measures 155
3. The parties to a dispute before the Court have the duty to preserve its subject-matter
157
4. The international legal obligations violated by the United States' conduct
with regard to the Court's Order of 3 March 1999 158
a) The general attitude of the United States vis-à-vis Orders of the Court 158
b) The legal obligations arising from the Order of the Court of 3 March 1999
164
c) The reaction to the Order on the part of the United States 166
IV. Conclusion 172
PART FIVE: OTHER CONDITIONS OF THE ILLEGALITY
OF UNITED STATES CONDUCT 173
I. Attribution to the United States of the breaches of international legal
obligations 173
II. Irrelevance of the domestic law of the United States 178
III. No necessity of fault on the part of the organs of the United States 182
IV. Exhaustion of local remedies 184
V. Conclusion 186 PART SIX: CONSEQUENCES OF THE INTERNATIONALLY
WRONGFUL ACTS OF THE UNITED STATES 187
I. Preliminary issues 188
1. Applicability of the general rules of State responsibility 188
2. The ILC draft articles as expression of the applicable law 194
3. The international responsibility of the United States and Germany's original claims
196
II. Injury and its independence from domestic "prejudice" 203
1. Injury to Germany 205
a) Direct injury by violations of the treaty obligations of the United States
towards Germany under Article 36 of the Vienna Convention 206
b) Indirect injury to Germany by violation of the rights of its nationals 208
c) Direct injury by non-observance of an Order of the Court 209
2. The question of "prejudice" in domestic law 210
a) "Prejudice" is no requirement under the Vienna Convention or the law
of State responsibility 211
b) The existence of "prejudice" in the trial of the LaGrand brothers 213
3. Conclusion 214
III. Pronouncement of the wrongfulness of the conduct of the United
States
as a form of satisfaction 214
1. Pronouncement of wrongfulness as a form of satisfaction 215
2. Conditions of satisfaction 217
a) Moral damage suffered by Germany because of the internationally wrongful
acts
of the United States 218
b) Causation 221
c) Necessity of the pronouncement 222
3. Conclusion 222 IV. Assurances and guarantees of non-repetition 223
1. The demand of Germany 225
2. Circumstances requiring the pronouncement of assurances and guarantees
of non-repetition 229
a) Risk of repetition 230
b) Seriousness of the injury suffered by Germany 231
3. Conclusion 231
V. No circumstances precluding these remedies 231
1. No impairment of the dignity of the United States 232
2. No contribution of Germany or its nationals to the damage caused 233
3. The domestic law of the United States providing no justification for failure
to provide reparation 234
VI. Conclusion 238
PART SEVEN: CONCLUSIONS AND SUBMISSIONS 241
I. Conclusions 241
II. Submissions 245
VOLUME II
ANNEXES 1 - 37
ANNEX MG 1 Arrest Information Sheet - Karl LaGrand 247
ANNEX MG 2 Presentence Reports on Karl and Walter LaGrand
(22, 23 April 1982 and 2 April 1984) 251
ANNEX MG 3 Supreme Court of Arizona
State v. (Walter) LaGrand
(30 January 1987) 291
ANNEX MG 4 Supreme Court of Arizona
State v. (Karl) LaGrand (30 January 1987) 303
ANNEX MG 5 Superior Court of the State of Arizona, Pima County
The State of Arizona v. Walter and Karl
LaGrand
Transcript of the Aggravation-Mitigation
Hearing
(17 September 1984 - 12 December 1984) 309
ANNEX MG 6 Superior Court of the State of Arizona, Pima County
The State of Arizona v. Walter and Karl
LaGrand
Transcript of Entry of Judgment and Sentencing
(14 December 1984) 423
ANNEX MG 7 U.S. Supreme Court
Karl LaGrand v. Arizona
Walter LaGrand v. Arizona
(5 October 1987) 447
ANNEX MG 8 United States District Court for the District of Arizona
Karl and Walter LaGrand v. Lewis
(24 January 1995) 451
ANNEX MG 9 United States District Court for the District of Arizona
Karl and Walter LaGrand v. Lewis
(16 February 1995) 465
ANNEX MG 10 United States Court of Appeals (Ninth Circuit)
Karl and Walter LaGrand v. Stewart
(16 January 1998) 477
ANNEX MG 11 U.S. Supreme Court
Karl and Walter LaGrand v. Stewart (7 December 1998) 493
ANNEX MG 12 Notice of Consulate Assistance to Karl LaGrand
(21 December 1998) 497
ANNEX MG 13 Supreme Court of Arizona
State of Arizona v. Walter LaGrand
Warrant of Execution
(15 January 1999) 501
ANNEX MG 14 Letter of German President Herzog to
U.S. President Clinton
(5 February 1999) 507
ANNEX MG 15 Letter of German Chancellor Schröder to
U.S. President Clinton
(2 February 1999) 513
ANNEX MG 16 Letter of German Chancellor Schröder to
Arizona Governor Hull
(2 February 1999) 517
ANNEX MG 17 Letter of German Foreign Minister Fischer to
U.S. Secretary of State Albright
(27 January 1999) 521
ANNEX MG 18 Letter of German Foreign Minister Fischer to
U.S. Secretary of State Albright
(22 February 1999) 525
ANNEX MG 19 Letter of German Foreign Minister Fischer to
Arizona Governor Hull
(27 January 1999) 533ANNEX MG 20 Letter of German Minister of Justice Däubler-Gmelin to
U.S. Attorney General Reno
(27 January 1999) 537
ANNEX MG 21 United States Court of Appeals (Ninth Circuit)
Karl LaGrand v. Stewart
170 F.3d 1158
(24 February 1999/amended 26 February 1999) 543
ANNEX MG 22 United States Court of Appeals (Ninth Circuit)
Karl LaGrand v. Stewart
173 F.3d 1144
(24 February 1999) 547
ANNEX MG 23 U.S. Supreme Court
Stewart v. Karl LaGrand
(24 February 1999) 553
ANNEX MG 24 Arizona Superior Court, Pima County
State of Arizona v. Walter LaGrand
(23 February 1999) 557
ANNEX MG 25 Memorandum of Points and Authorities in Support of
Petitioner's Petition for Post-Conviction Relief
(16 February 1999) 563
ANNEX MG 26 Letter of German Foreign Minister Fischer to
U.S. Secretary of State Albright
(2 March 1999) 609
ANNEX MG 27 Complaint of Germany to the U.S. Supreme Court
and Memorandum in Support of Motion for Leave to File a
Bill of Complaint and Motion for Preliminary Injunction
615
ANNEX MG 28 Letter of the U.S. Solicitor General to the
U.S. Supreme Court
(3 March 1999) 655
ANNEX MG 29 U.S. Supreme Court
Plaintiffs' Reply to the United States
(3 March 1999) 659
ANNEX MG 30 U.S. Supreme Court
Petition for writ of certiorari to the Supreme Court of
Arizona
Walter LaGrand v. Arizona
(3 March 1999) 665
ANNEX MG 31 U.S. Supreme Court
Stewart v. Walter La Grand
(3 March 1999) 669
ANNEX MG 32 U.S. Supreme Court
Federal Republic of Germany v. United States
(3 March 1999) 677
ANNEX MG 33 Statement of Governor Jane Dee Hull on the Case
of Walter LaGrand
(2 March 1999) 683
ANNEX MG 34 U.S. Supreme Court
Paraguay v. Gilmore
Breard v. Greene Brief for the United States as Amicus Curiae
(April 1998) 687
ANNEX MG 35 Press Release of the German Ministry of Foreign Affairs
(4 March 1999) 743
ANNEX MG 36 Reply of the German Government to an interpellation
from the German Bundestag
(15 April 1999) 747
ANNEX MG 37 Letter of U.S. Secretary of State Albright to
the Governor of Virginia
(13 April 1998) 755
VOLUME III
ANNEXES 38 - 61
ANNEX MG 38 Press Conference of the U.S. State Department
(3 March 1999) 759
ANNEX MG 39 Keith Highet
The Emperor's New Clothes: Death Row Appeals
to the World Court? The Breard Case As a Miscarriage
of (International) Justice, in: Essays in memoriam
Judge José Maria Ruda (forthcoming) 763
ANNEX MG 40 Certificates of Birth of Karl and Walter LaGrand
Passport of Emma LaGrand, née Gebel 791
ANNEX MG 41 Certificates of German Citizenship of Karl and Walter LaGrand
(15 March 1993) 801
ANNEX MG 42 U.S. Department of Justice
Immigration and Naturalization Service Letters to Karl and Walter LaGrand
(15 October 1992) 805
ANNEX MG 43 U.S. Department of Justice
Immigration and Naturalization Service
Letter to the German Consulate General in Los Angeles
(10 December 1992) 815
ANNEX MG 44 Inter-American Court of Human Rights
Request for an Advisory Opinion submitted by the
Government of the United Mexican States
(17 November 1997) 819
ANNEX MG 45 United States District Court for the District of Arizona
Karl LaGrand v. Stewart
(Order of 23 February 1999) 833
ANNEX MG 46 Memorandum of Law in Support of the Petitioner's
Writ of Habeas Corpus by a Person in State Custody
LaGrand v. Lewis
(8 March 1993) 853
ANNEX MG 47 Circular Order (Runderlaß)
on assistance for Germans detained abroad
(15 October 1998) 1073
ANNEX MG 48 U.S. Supreme Court
Paraguay v. Gilmore
Brief of Amici Curiae Argentina, Brazil, Ecuador and
Mexico
(26 March 1998) 1093
ANNEX MG 49 Affidavit Scharlette Holdman 1101ANNEX MG 50 Affidavit Robert Hirsh 1111
ANNEX MG 51 Superior Court of the State of Arizona, Pima County
State of Arizona v. Walter LaGrand
Third Petition for Postconviction Relief
(2 March 1999) 1117
ANNEX MG 52 Affidavit Kelley Henry 1213
ANNEX MG 53 Affidavit Jeanette Laura Sheldon 1217
ANNEX MG 54 Affidavit Tirso Molina Lopez 1221
ANNEX MG 55 Affidavit Masie Lee LaGrand 1227
ANNEX MG 56 Affidavit Pansy Shields 1233
ANNEX MG 57 Affidavit Ada I. Berrios 1239
ANNEX MG 58 Michael K. Addo
Interim Measures of Protection for Rights under the
Vienna Convention on Consular Relations (to be
published
in 10 European Journal of International Law 1999,
number 4) 1243
ANNEX MG 59 Statement by Governor Jim Gilmore concerning
the execution of Angel Breard
(14 April 1998) 1277
ANNEX MG 60 U.S. Department of State
Foreign Affairs Manual 1984
(Extract) 1281
ANNEX MG 61 Letter of U.S. Secretary of State Albright to
the Chairman of the Texas Board of Pardons and Paroles
(27 November 1998) 1287 Part
Part One
Introduction
1.01 In lodging the present Application, the Federal Republic of Germany asks
the International Court of Justice to decide upon a dispute arising under the
1963 Vienna Convention on Consular Relations. It is Germany's claim that by
failing to inform Karl and Walter LaGrand, two German nationals, arrested in
1982 on suspicion of capital crimes in Arizona, of their right to consular
access, even though the competent authorities were aware of their German
nationality from the outset, the United States violated the obligations flowing
from Article 36 (1) of the Vienna Convention on Consular Relations. This
breach of international law had tragic consequences: Had the German
consulate been duly informed, its officials would have immediately provided
protection, support and assistance to their nationals, helping in the preparation
of their defence, in obtaining competent counsel and in collecting mitigating
evidence. Thus, the case of the LaGrands would have been thoroughly
investigated, and essential mitigating evidence, mainly located in Germany,
would have been presented at the decisive steps of the criminal proceedings. In
fact, however, Karl and Walter LaGrand were poorly represented, none of this
evidence was produced, and the brothers were sentenced to death. There are
compelling reasons to believe that the LaGrands would have escaped the death
penalty if the evidence mentioned had been introduced in time.
1.02 However, eight years later, in 1992, when German consular officers were
finally made aware of the nationality of the LaGrands and had the opportunity
to come to their help, all legal avenues available before the Arizona courts had
already been exhausted. According to the domestic law of the United States,
the LaGrands were now barred from raising the violation of their right to
consular access and from introducing the essential mitigating evidence
obtained in the meantime with the assistance of the German Government.
There was no effective mechanism available to them anymore to remedy this
situation. Thus, the United States also put itself in breach of Article 36 (2) of
the Vienna Convention.
1.03 After having learned that two German nationals, Karl and Walter
LaGrand, had been sentenced to death, the Federal Republic of Germany, in
addition to consular assistance, pursued a variety of activities in order to
minimise the consequences of the United States' breaches of the Vienna
Convention. In doing so, Germany chose at first the avenue of energetic moral
and political appeals because it did not want its steps to negatively affect the
legal efforts to save the LaGrands from execution. In particular, Germany was
determined to avoid any impression of interfering in pending judicial
proceedings. However, after an Arizona State attorney disclosed at the last
minute, on 23 February 1999, the shocking fact that the state authorities had
known all along, since 1982, that Karl and Walter LaGrand were German, and
after Karl LaGrand was executed just one day later, despite most urgent
appeals from its highest representatives, Germany decided to bring the case
before the International Court.1.04 Most regrettably, the United States showed itself unimpressed by the
Provisional Measures indicated unanimously by this Court and proceeded also
to execute Walter LaGrand, thus causing irreparable harm to the rights claimed
by Germany. As a consequence, Germany has to modify its original
Submissions.
1.05 In pursuing its Application, Germany has limited the remedies it seeks
from the Court to what it considers absolutely necessary to ensure that in the
future German nationals in the United States will be provided with adequate
and timely consular assistance, so that a case as utterly deplorable as that of
Karl and Walter LaGrand will not repeat itself.
1.06 Unfortunately, breaches of the right to consular access appear to be rather
common in the United States, as evidenced by the fact that the present
Application has been preceded by that of Paraguay in the Case of Angel
Francisco Breard only last year. The parallels between the two cases are
striking, but there also exist important differences: In the instance of the two
German nationals, the efforts of the United States Federal Government to have
the competent state Governor suspend the executions were even weaker - if
they deserve to be called "efforts" at all.
On the other hand, the parallelism mentioned makes it possible for
Germany to deal with several legal arguments developed by the United
States before this Court in the Hearings on Provisional Measures in the
Breard Case, particularly with regard to jurisdiction, already at this
stage. Germany hopes that, thereby, its own Case will be able to
proceed to the stage of the merits as speedily as possible.
1.07 The questions at issue in the present Case are of an importance which
transcends by far the particular litigation at stake. The United States is one of
the countries most strongly committed to the protection of the rights and
interests of its citizens abroad. In the words of the President of this Court in the
Breard Case:
"It is of obvious importance to the maintenance and
development of a rule of law among States that the obligations
imposed by treaties be complied with and that, where they are
not, reparation be required. The mutuality of interest of States in
the effective observance of the obligations of the Vienna
Convention on Consular Relations is the greater in the
intermixed global community of today and tomorrow (and the
citizens of no State have a higher interest in the observance of
those obligations than the peripatetic citizens of the United
States)."2
Germany has nothing to add to this. Hence, it is convinced that it is in
the interest of both parties to allow this Court to pronounce itself on the
substantive legal issues raised in the present Application as quickly and
comprehensively as possible.1.08 Germany wants to emphasise that its Application is not directed against
capital punishment, neither in general nor in regard to the way the death
penalty is applied in any particular country. This, however, must not be
mistaken to mean that Germany does not take a clear and strong stance on the
issue of capital punishment:
The death penalty was abolished in the Federal Republic of Germany in
1949 by Article 102 of the Basic Law. Since then, the Federal
Government has been especially committed to the world-wide
outlawing and abolition of capital punishment. This policy is a
reflection of the clear stance by the parliament and the German people,
the majority of whom has opposed the death penalty for many years.
With its decision of 17 June 1998, the German Bundestag unanimously
supported the Federal Government's endeavours to bring about the
3
universal abolition of the death penalty.
1.09 To state it once again: The Case brought before this Court does not
concern the entitlement of the federal states within the United States to resort
to the death penalty - however deplorable Germany may find the increasing
resort to this inhuman method of punishment in a country with which it
otherwise shares such a strong commitment to human rights, based on the
inherent dignity of the human person. Neither does Germany intend, or has
ever intended, to use the International Court of Justice as a court of criminal
appeal. In its Order of 3 March 1999 in the present Case, by which it indicated
Provisional Measures proprio motu, this Court emphasised that its function is
"to resolve international legal disputes between States inter alia
when they arise out of the interpretation or application of
international conventions." 4
This is precisely what Germany requests the Court to do.
1.10 Analogously, whenever the following Memorial refers to, explains and
analyses certain features of the domestic law of the United States, this is done
exclusively for the purpose of elucidating issues raised at the level of
international law. Thus, the description of the rule of "procedural default"
5
applied in the U.S. law of criminal procedure is necessary in order to
demonstrate the failure of the law of the United States to comply with its
obligation under Article 36 (2) of the Vienna Convention on Consular
Relations, according to which national law
"must enable full effect to be given to the purposes for which
the rights accorded under this article are intended."
1.11 The present Memorial is divided into seven Parts:
The Introduction (Part One) is followed by a Statement of Facts on the
treatment of Karl and Walter LaGrand by the United States criminal
justice system, leading to their execution in February/March 1999 (Part
Two). Part Three deals with the issues of the jurisdiction of the Court and the
admissibility of Germany's Case. It arrives at the conclusion that the
Optional Protocol to the Vienna Convention on Consular Relations
provides a basis of jurisdiction which covers the entirety of the claims
put forward by Germany, and further, that there exist no circumstances
which could make these claims inadmissible.
Part Four sets out in detail the violations of international law
committed by the United States which injured Germany in its own
rights as well as in those of the LaGrands as its nationals, i.e., the
breach of both Article 36, paragraph 1, and Article 36, paragraph 2, of
the Vienna Convention on Consular Relations, as well as the non-
observance of the Order on Provisional Measures pronounced by this
Court on 3 March 1999 by the execution of Walter LaGrand on the
same day.
Subsequently, Parts Five and Six of the Memorial establish that these
violations of international law entail the international responsibility of
the United States vis-à-vis Germany and give rise to the legal
consequences attached to such internationally wrongful acts. Part Six
then elaborates the remedies requested by Germany: Satisfaction by
way of a pronouncement of the wrongfulness of the actions and
omissions of the United States which had fatal consequences for the
brothers LaGrand, and assurances and guarantees of non-repetition to
prevent further violations of Germany's rights and those of its nationals.
Thus, Germany wants to repeat that it has limited its requests to those
remedies which it considers as the minimum requirements, but also as
absolutely necessary, to ensure that German nationals in the United
States will have access to adequate consular assistance in the future, as
prescribed by the Vienna Convention.
Part Seven contains the Conclusions and Submissions put forward by
Germany.
Two companion Volumes contain the materials annexed to the
Memorial.
Part Two
Statement of Facts
2.01 The following Statement of Facts is, to the best of the knowledge and
belief of the Government of the Federal Republic of Germany, accurate and
complete. It presents the facts which are considered to be of relevance for the
decision of the Court on the claims submitted by Germany in the present case.
In the afternoon of 7 January 1982, Karl and Walter LaGrand were
arrested by Arizona law enforcement authorities on suspicion of several
crimes committed in the morning of the same day at the Valley
National Bank in Marana, Arizona, among them the murder of the bank manager. At the time of the alleged crime, Karl was 18 and Walter 19
years of age.
According to the arrest6information sheet concerning Karl LaGrand, he
was born in Germany. So-called "presentence reports" demonstrate the
knowledge on the part of the Arizona authorities of the German
citizenship of both Walter and Karl LaGrand. Reports of 22 and 23
April 1982 dealing with an earlier incident, and reports of 2 April 1984
dealing with the crimes committed in Marana each cont7in the
information "Citizen of Germany - resident alien" . Nevertheless, the
Arizona authorities did not inform the brothers about their rights under
the Vienna Convention on Consular Relations, nor did they notify the
German Consulate of their arrest and detention. Neither were the
brothers themselves aware of these rights.
2.02 The brothers were detained and put to trial before a jury at the Superior
Court of Pima County, Arizona. On 17 February 1984, the brothers were
convicted of murder in the first degree, attempted murder in the first degree,
8
attempted armed robbery, and two counts of kidnapping. The brothers were
represented by counsel appointed by the Court because they could not afford
legal counsel of their own choice.
2.03 The brothers' attorneys failed to raise the violation of the Vienna
Convention or to contact the German consulate on their own initiative. Neither
did they raise or investigate mitigating circumstances linked to the upbringing
of the brothers in Germany under extremely difficult social conditions. On 14
December 1984, both brothers were sentenced to death for first degree murder
and to concurrent jail sentences for the other charges. 9
Thus, the German nationals were detained, tried and sentenced to death
without being advised of their right to consular assistance, as
guaranteed to them by Article 36 (1) (b), of the 1963 Vienna
Convention on Consular Relations. Neither the authorities of the State
of Arizona nor the brothers nor their attorneys informed the German
Consulate General in Los Angeles or any other German representative
about their arrest, detention, and sentencing. Nor did the State of
Arizona inform the brothers or their attorneys on the LaGrands' rights
under the Vienna Convention.
2.04 On 30 January 1987, the Supreme Court of Arizona rejected both Walter
and Karl LaGrand's appeals by 3 to 2 votes. 10 The lack of consular advice was
again not raised by the attorney of the LaGrands or anybody else. However, as
far as the quality of Karl LaGrand's representation was concerned, the Arizona
Supreme Court concluded that, although Karl's Attorney at that time, David
Gerson
"kept an exceedingly low profile, we cannot say that his
performance was so deficient as to compromise the adversarial
11
nature of the trial."2.05 On 5 October 1987, the United States Supreme Court denied certiorari,
that is, it denied to hear the case and confirmed the judgments. The late
Justices Marshall and Brennan dissented because they held that the death
penalty was a violation of the Eighth and Fourteenth Amendment of the United
States Constitu12on, which prohibit the infliction of "cruel and unusual
punishments". Once again, the omission of consular advice was neither raised
nor decided upon. Several other extraordinary remedies at the State level
remained unsuccessful. In none of these, the issue of consular notification was
raised.
2.06 It was only in June 1992, after all legal avenues at the state level had been
exhausted, that German consular officers were made aware of the case by the
LaGrand brothers. The detainees themselves had learnt of their rights through
two other German inmates, and not through the Arizona authorities.
Immediately, the German authorities investigated the nationality of the
brothers. These investigations by the competent German authorities13ed to the
result that the brothers did indeed possess German nationality. On 8
December 1992, an official of the Consulate General of Germany in Los
Angeles visited the brothers in prison to find out what further steps were to be
taken to assist them in their legal efforts. In the following, Germany helped the
brothers' attorneys to investigate the brothers' childhood in Germany, both by
financial and logistical support, and to raise this issue and the omission of
consular advice in Court proceedings.
2.07 On 24 January and 16 February 1995, the Federal U.S. District Court for
the District of Arizona rejected t14 so-called habeas corpus claims of the
brothers in four separate orders. In these proceedings, the attorneys raised for
the first time the lack of consular advice and the violation of Art. 36 of the
Vienna Convention on Consular Relations. The attorneys also raised the
inadequate performance of earlier counsel, especially in the case of Karl
LaGrand, and other shortcomings in the proceedings. The court rejected the
assertion of this and other claims on the basis of the doctrine of procedural
default. Applying this doctrine, the Court decided that, because Karl and
Walter LaGrand had not asserted their rights under the Vienna Convention in
the previous legal proceedings at the state level, they could not assert them
anymore in the federal habeas corpus proceedings.
The doctrine of procedural default was held to bar such relief even
though it became obvious in the proceedings that Karl and Walter
LaGrand were unaware of their rights under the Vienna Convention at
the time of the earlier proceedings. Further, it became also obvious that
the brothers were unaware of their rights precisely because the
authorities failed to comply with their obligations under the Convention
to inform them of those rights without delay.
2.08 Karl and Walter LaGrand's following appeals to the intermediate (federal)
appellate court and the U.S. Supreme Court were the last means of legal
recourse in the United States available to them as of right. On 16 January 1998,
the (federal) Court of Appeals of the 9th Circuit rejected the brothers' appeals
against the judgment of the District Court, confirming, inter alia, that the claimof violation of the Vienna Convention was "procedurally defaulted". On 215
November 1998, the U.S. Supreme Court d16ied certiorari against this
decision without stating any reasons. At that stage, the 17others LaGrand
were finally informed of their right to consular access.
2.09 On 12 January 1999, the Arizona Supreme Court decided that Karl
LaGrand was to be executed on 24 February 1999; on 15 January 1999, the
Court decided that the execution of Walter LaGrand was to take place on 3
March 1999. The German Consulate learned of these dates on 19 January
1999.
2.10 During the following days and weeks, Germany decided to pursue several
avenues in order to prevent the execution of the brothers. Firstly, the highest
German authorities raised the issue in direct diplomatic communications to the
United States and Arizona authorities. Secondly, Germany supported the
attorneys in their attempts to resort to any remaining domestic legal means.
German officials also participated in the clemency hearings before the Arizona
Board of Executive Clemency.
2.11 More specifically, as to the activities of the Government of the Federal
Republic of Germany, it used every diplomatic means at its disposal in order to
prevent the carrying out of the death sentences. Numerous interventions were
made. Both the President and the Chancellor of the Federal Republic of
Germany appealed to the20resident of the United Sta21s, the latter also to the
Governor of Arizona. Foreign Minister Fischer and Minister of Justice
Däubler-Gmelin raised the issue with their respective counterparts in the
United States Administration and with the Governor of the State of Arizona.
Démarches were undertaken by the German Ambassador to the United States.
A further démarche followed on behalf of the European Union. Both the
German Ambassador and the German Consul-General in Los Angeles
explained the German position to the Board of Executive Clemency of the
State of Arizona on the days prior to the execution of the brothers. In his
second letter to United States Secretary of State Albright dated 22 February
1999, the German Foreign Minister, Joschka Fischer, raised the issue of a
violation of the Vienna Convention - to no avail. 23A detailed Memorandum of
the German Government was enclosed in that letter.
2.12 It was only on 23 February 1999 that the authorities of the State of
Arizona did reveal that they had, since 1982, had knowledge of the German
nationality of Karl and Walter LaGrand. Until that day, Germany had assumed
that the Arizona authorities had not been aware of the German nationality of
the detainees. However, during the proceedings before the Arizona Board of
Executive Clemency on 23 February 1999, State Attorney Peasley admitted
that the authorities of the State of Arizona had been aware all along, since
1982, that Karl and Walter LaGrand were German: Reacting to an earlier
statement made by a German attorney who had hinted that the Arizona
authorities might possibly not have been aware of the German nationality of
the brothers at the time they were arrested, Mr. Peasley said: "We didn't know, you're told, until ten years after the offence
and eight years after, eight years after the conviction, nobody
knew that Karl LaGrand was a German citizen. You may recall
that being said to you this morning. On the presentence report in
this very case which this Board also has, up at the top of that
report it says `Citizen of Germany', `Resident Alien'. Any
suggestion that it was not clear, not clear then, is simply
24
untrue."
Further research undertaken in the course of the preparation of the
present Memorial confirmed the accuracy of this admission. It was thus
in full knowledge of the German nationality of the detainees that the
authorities of the State of Arizona, for more than ten years, held, tried
and convicted Karl and Walter LaGrand without informing them of
their rights under Article 36 of the Vienna Convention.
Such failure to effect the required notification precluded Germany from
protecting its nationals' rights and interests in the United States as
provided by Articles 5 and 36 of the Vienna Convention at both the
trial and the appeal level in the state courts.
2.13 On 24 February 1999 (amended 26 February 1999), the 9th Circuit Court
rejected a second habeas corpus claim of Karl LaGrand which was based,
among other arguments, on the omission of consular notification. The Court
held that the latter claim was procedurally defaulted. On the same day, the 9th
Circuit Court decided that ex26ution by lethal gas was unconstitutional, and
ordered a stay of execution. The U.S. Supreme Court, however, vacated the
stay of execution without giving reasons for its decision. 27
On 23 February 1999, the Arizona Board of Executive Clemency, by 3
votes to 1, rejected the appeals for clemency in the case of Karl
LaGrand despite interventions by the German Ambassador to the
United States, Mr. Jürgen Chrobog, and other high-ranking German
representatives.
Karl LaGrand was permitted to choose lethal injection instead of gas
and did so. In the evening of 24 February 1999, Karl LaGrand was
executed.
2.14 On 23 February 1999, the Arizona Superior Court in Pima County
rejected Walter LaGrand's second petition of post-conviction relief of 16
February 1999 as procedurally defaulted. 28 His attorney had inter alia raised
the lack of consular advice. On 1 March 1999, Walter LaGrand confirmed his
choice to die in the gas chamber instead of by lethal injection. On the evening
of 2 March 1999, after all domestic remedies had been exhausted, Germany
brought an Application before the International Court of Justice and requested
Provisional Measures against the execution of Walter LaGrand. On the same
day, Foreign Minister Fischer addressed a third letter to Secretary of State
Albright referring to Art. 36 of the Vienna Convention and the German
Application to the International Court of Justice and requesting her to urgeGovernor Hull to suspend Walter LaGrand's execution. On 3 March 1999,
the International Court of Justice granted the request proprio motu. The
dispositif of the Court's Order was worded as follows:
"(a) The United States of America should take all measures at
its disposal to ensure that Walter LaGrand is not executed
pending the final decision in these proceedings, and should
inform the Court of all the measures which it has taken in
implementation of this Order;
(b) The Government of the United States of America should
transmit this Order to the Governor of the State of Arizona." 31
2.15 On the same day, not only Walter LaGrand but a32o Germany applied to
the U.S. Supreme Court for a stay of execution. In a letter of 3 March 1999 to
the Supreme Court, Seth P. Waxman, the U.S. Solicitor General, argued for the
U.S. Federal Government that
"it is our position that the Vienna Convention does not furnish a
basis for this Court to grant a stay of execution." 33
Concerning the Order of the Court, he was of the opinion that
"an order of the International Court of Justice indicating
provisional measures is not binding and does not furnish a basis
34
for judicial relief ... ."
The U.S. Supreme Court denied the motion of Walter LaGrand
(Justices Stevens and Breyer dissenting). Furthermore, on appeal by
the State of Arizona, the Supreme Court reversed a stay of execution
ordered by the 9th Circuit Court, holding that Walter LaGrand had
waived any claim that execution by gas chamber violated the
Constitution (Justice Stevens dissenting). 36 Further, the Supreme Court
denied the motion brought by Germa37 and declined to exercise its
original jurisdiction in the case. Two Justices dissented, two other
Justices based their decision on the position of the U.S. Government.
2.16 Already on 2 March 1999, the Governor of Arizona, Ms. Jane Dee Hull,
had rejected a move for a stay of execution in spite of a respective
recommendation of the Arizona Board of Executive Clemency. Her statement
read, inter alia:
"[I]n the interest of justice and with the victims in mind, I have
decided to allow this execution to go forward as scheduled." 38
Apart from communicating the Order of the International Court of
Justice to the Governor of Arizona, the United States Federal
Government did not undertake any other measure to halt the execution
of Walter LaGrand and implement the Order of the Court. Walter LaGrand was executed on the evening of 3 March 1999 local
time in Phoenix, Arizona, by lethal gas.
Part Three
Jurisdiction and admissibility
I. The subject-matter of the present dispute
3.01 The proceedings instituted by Germany in the present case raise questions
of the interpretation and application of the Vienna Convention on Consular
Relations and of the legal consequences arising from the non-observance on
the part of the United States of certain of its provisions vis-à-vis Germany and
two of its nationals. It was strictly within the framework of these proceedings
and in order to preserve its rights under the Convention that Germany asked
the Court to indicate Provisional Measures. These measures were granted by
the Court in its Order of 3 March 1999. Since the Provisional Measures were
disregarded by the Respondent's competent authorities, Germany was forced to
include the consequences of the non-observance of the Order within the scope
of the present proceedings.
3.02 Germany will demonstrate that all these issues are covered by one and the
same jurisdictional basis, namely Art. I of the Optional Protocol to the Vienna
Convention on Consular Relations concerning the Compulsory Settlement of 40
Disputes of 24 April 1963 (henceforth referred to as the "Optional Protocol").
With regard to the non-observance of the Order of 3 March 1999, Germany
will, in an auxiliary and subsidiary manner, also invoke the inherent
jurisdiction of the Court for claims as closely interrelated with each other as
the ones before the Court in the present case.
3.03 Although in this initial phase of the proceedings Germany is under no
obligation whatsoever to anticipate any challenges to the jurisdiction of the
Court or the admissibility of the case which the Respondent may eventually
put forward, Germany will deal with the issues of jurisdiction and admissibility
already at this stage in order to provide a solid basis for proceeding to the
merits of the present Case as speedily as possible. Thus, if the Respondent
were able to concur with the legal views developed in the following, lengthy
proceedings on Preliminary Objections could be avoided.
3.04 The questions arising in the present Case are of an importance which
transcends the individual litigation at stake. The United States is one of the
countries most strongly committed to the protection of the rights and interests
of its citizens abroad. Hence, Germany is convinced that it is in the interest of
both parties to allow this Court to pronounce itself on the substantive legal
issues raised in the present application as quickly and comprehensively as
possible. Crucial questions, many of them not yet decided by international
judicial bodies, could be clarified, thus strengthening the rule of law in
international relations and thereby serving not least the many United States
citizens "scattered about the world - as missionaries, Peace Corps
volunteers, doctors, teachers and students, as travelers for
business and for pleasure. Their freedom and safety are
seriously endangered if state officials fail to honor the Vienna
Convention and other nations follow their example. Public
officials should bear in mind that `international law is founded
upon mutuality and reciprocity' ... The importance of the Vienna
Convention cannot be overstated. It should be honored by all
nations that have signed the treaty and all states of this
41
nation."
In her letter to the Governor of Virginia in the case of the Paraguayan
national Angel Breard requesting a temporary stay of the execution of
Mr. Breard, U.S. Secretary of State Albright took the same position,
stating that
"[A]s Secretary of State ... I have a responsibility to bear in
mind the safety of Americans overseas." 42
3.05 The paramount interest of the United States in the observance of the rules
of the Vienna Convention was also underlined by President Schwebel in his
Declaration appended to the Order of this Court of 9 April 1998 in the Case
Concerning the Vienna Convention on Consular Relations (Paraguay v. USA
[henceforth referred to as the Breard Case]): 43
"It is of obvious importance to the maintenance and
development of a rule of law among States that the obligations
imposed by treaties be complied with and that, where they are
not, reparation be required. The mutuality of interest of States in
the effective observance of the obligations of the Vienna
Convention on Consular Relations is the greater in the
intermixed global community of today and tomorrow (and the
citizens of no State have a higher interest in the observance of
those obligations than the peripatetic citizens of the United
States)."44
II. The legal bond establishing the jurisdiction of the Court in the present
Case
3.06 Germany and the United States are both members of the United Nations,
and thus ipso facto parties to the Statute of the International Court of Justice
(henceforth referred to as "the Statute") which forms an integral part of the
Charter of the United Nations (Art. 92, 93 [1]) of the Charter). In this capacity,
both States are entitled to make use of the machinery provided by the principal
judicial organ of the United Nations (Art. 92 of the Charter) without any
further prerequisites ratione personae (Art. 35 [1] of the Statute).
3.07 In the present Case, the jurisdiction of the Court is based upon Art. 36 (1)
of the Statute and Art. I of the Optional Protocol. Art. 36 (1) of the Statute
provides that the jurisdiction of the Court encompasses "all matters speciallyprovided for in the Charter of the United Nations or in treaties and conventions
in force." The Optional Protocol is a treaty within the meaning of this
provision. The use in Art. 36 (1) of the Statute of the expression "in force"
does not limit the scope of this provision to treaties concluded prior to the
entry into force of the Statute itself, but rather refers to the date of the
institution of the respective proceedings. This interpretation is supported by the
settled practice of the Court as well as by the unanimous opinion in doctrine
and has never been seriously challenged. 45
46
3.08 The Vienna Convention on Consular Relations of 24 April 1963 and the
accompanying Optional Protocol have been ratified by both the United States
of America and the Federal Republic of Germany. Neither country has
declared any reservations. In accordance with its Art. VIII (1), the Optional
Protocol entered into force on 19 March 1967. It became binding upon the
United States on 24 December 1969 and upon Germany on 7 October 1971,
respectively. It is thus on that latter day that the legal bond establishing the
jurisdiction of the Court between the two States was created. This legal
relationship has remained unchanged ever since.
3.09 In accordance with Art. 102 (1) of the United Nations Charter and Art. 4
(1) (c) of the regulations implementing this provision, the Vienna Convention
and the Optional Protocol were registered ex officio with the Secretariat of the
United Nations on 8 June 1967 (Registration No. 8640).
III. The scope of the Court's jurisdiction under Article I of the Optional
Protocol
3.10 Art. I of the Optional Protocol on which Germany bases the Court's
jurisdiction in the present Case is worded as follows:
"Disputes arising out of the interpretation or application of the
Convention shall lie within the compulsory jurisdiction of the
International Court of Justice and may accordingly be brought
before the Court by an application made by any party to the
dispute being a Party to the present Protocol."
Germany fully agrees with the view expressed in the United States'
Memorial in the Case Concerning United States Diplomatic and
Consular Staff in Tehran (henceforth referred to as the Hostages Case)
that the Court's jurisdiction under Art. I of the Optional Protocol is
"clear, simple, and unanswerable". 49It was in this very case that the
United States addressed and rebutted - in a thoroughly convincing
manner - several possible arguments against the Court's jurisdiction
under the Optional Protocol. This legal reasoning is as valid today as it
was almost 20 years ago, particularly as regards the question whether
or not the rules laid down in Art. II and III of the Optional Protocol 50
have any impact on the compromissory clause contained in Art. I and
the interpretation of the terms "dispute" and "interpretation or
application" used in this provision.3.11 In its Judgment of 24 May 1980 in the Hostages Case, the Court fully
accepted the arguments put forward by the United States, the then applicant.
Although Germany sees no need to reiterate this argumentation at length, it
takes the opportunity to recall the opinion shared by the United States and the
Court on the relevant issues:
In its Memorial of 12 January 1980, the United States took the view
that
"Articles II and III do not require a two-month waiting period
prior to resort to the Court under Article I" 51
and maintained
"that proceedings in this Court may be unilaterally instituted
under Article I of the Optional Protocol at any time after a
dispute of the appropriate character has arisen." 52
The United States arrived at this conclusion after a careful analysis of
the wording, the purpose, the historical context and the legislative
history of the Optional Protocol. Its view was finally confirmed by the
Court itself in the following words:
"The terms of Articles II and III ..., when read in conjunction
with those of Article I and with the Preamble to the Protocols,
make it crystal clear that they are not to be understood as laying
down a precondition of the applicability of the precise and
categorical provision contained in Article I establishing the
compulsory jurisdiction of the Court in respect of disputes
arising out of the interpretation or application of the Vienna
Convention in question." 53
Germany cannot but fully support this understanding of a provision,
which was quite aptly characteris54 by the United States as "truly a
model compromissory clause" .
3.12 In the light of such authoritative and unequivocal pronouncements on the
part not only of the International Court of Justice but also of the United States
Government, Germany is convinced that a somewhat ambiguous observation
on the point at issue made by the Agent of the United States in his oral
argument in the Breard Case was a mere policy statement rather than an
indication of a shift in the firm and sound legal position taken by our
Adversary on earlier occasions. Such a shift would find no support whatsoever
in jurisprudence or in doctrine.
While Germany is fully aware of the prima facie nature of findings on
jurisdiction and admissibility within a procedure on Provisional
Measures, it might still be permitted to point out that the Court itself
addressed the recent doubts raised on this point by the Agent of the
United States. The Court simply recalled - and thus confirmed - its previous Judgment in the Hostages Case. Germany thus considers
that both parties to the present dispute concur with each other in the
approval of the Court's authoritative statement to the effect that the two
months' period referred to in Art. II and III would only come into play
when
"recourse to arbitration or conciliation has been proposed by
one of the parties to the dispute and the other has expressed its
57
readiness to consider the proposal."
Obviously, these conditions are not met in the present Case.
Therefore, by bringing the present case before the International Court
of Justice on 2 March 1999, Germany has simply exercised its right
under the Optional Protocol to institute proceedings unilaterally
"at any time after a dispute of the appropriate character has
arisen"
- to once more follow the wording used by the United States in its
written argument in the Hostages Case. 58
IV. Preconditions of the jurisdiction of the International Court of Justice
under Article I of the Optional Protocol
3.13 The reference by the United States in its Pleadings in the Hostages Case
to "a dispute of the appropriate character" points at two preconditions of the
Court's jurisdiction under Art. I of the Optional Protocol, namely
a) the existence of a "dispute" and
b) the condition that this dispute must be "arising out of
the interpretation or application of the (Vienna)
Convention" on Consular Relations.
1. The existence of a "dispute"
a) The meaning of the term "dispute"
3.14 The concept of "dispute" is fundamental for the contentious jurisdiction of
the Court. It was already in 1924 in the Mavrommatis Case that the Permanent
Court coined the classical definition of the term "dispute" frequently used in
clauses establishing the jurisdiction of the Court:
"A dispute is a disagreement on a point of law or fact, a conflict
of legal views or of interests between two persons." 59
60
Subject only to minor adjustments, this definition has been constantly
applied by both the Permanent Court and its successor, the International
Court of Justice. It was recently confirmed in the Judgment of 11 June 1998 on Preliminary Objections in the case concerning the Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon v.
61
Nigeria), where the Court recalled that, in the sense accepted in its
jurisprudence and that of its predecessor, a dispute is a disagreement on
a point of law or fact, a conflict of legal views or interests between
parties, and that, in order to establish the existence of a dispute, it
must be shown that the claim of one party is positively opposed by the
63
other. The Court went on to say:
"Whether there exists an international dispute is a matter for
objective determination." 64
3.15 Thus, as the Court already clarified in its Advisory Opinion on the
Interpretation of Peace Treaties of 30 March 1950,
"[t]he mere denial of the existence of a dispute does not prove
its non-existence. ... [In] a situation in which the two sides hold
clearly opposite views concerning the question of the
performance or non-performance of certain treaty obligations ...
the Court must conclude that international disputes have
65
arisen."
As the United States correctly argued at that occasion, every other
position would lead to a result which
"could only operate to further the purposes of a State not
prepared to live according to the law and carry out its
responsibilities as a member of the community of nations." 66
3.16 Furthermore, the Court has made very clear that a party cannot prevent an
affirmative answer as to the existence of a dispute by simply not advancing any
arguments in favour of its position, whether that party does not participate in
the proceedings at all or, although doing so, does not openly admit the
existence of a legal or factual controversy with its adversary:
"where one party to a treaty protests against the behaviour or a
decision of another party, and claims that such behaviour or
decision constitutes a breach of the treaty, the mere fact that the
party accused does not advance any argument to justify its
conduct under international law does not prevent the opposing
attitudes of the parties from giving rise to a dispute concerning
the interpretation or application of the treaty." 67
3.17 The application of the thus-described set of criteria for the determination
of the existence of a dispute prevents the frustration of a commitment to
arbitrate or judicially settle in cases where one party is reluctant to admit the
existence of a dispute and, by doing so, challenges the jurisdiction of the Court
in general. It was precisely the application of these criteria which was
vigorously propounded by, and finally worked in favour of, the United Statesin the Hostages Case; a case in which the same jurisdictional basis on which
Germany is relying today was invoked by the then applicant.
3.18 Moreover, the position taken by the Court in this respect is so sound and,
with regard to the proceedings in absentia foreseen in Art. 53 of the Statute,
almost self-evident that, notwithstanding frequent discussions about its scope
in concrete cases, it has never been challenged in principle. However, due to
the position taken by the United States recently in the Hearing on the Request
for the Indication of Provisional Measures in the Breard Case, where, in a very
similar, if not virtually identical, legal context, Counsel for the United States
argued that
"there is no dispute here about either the interpretation or the
application of the Convention", 68
Germany considers it advisable to underline once again the validity of
the principles regarding the existence of a dispute.
3.19 Hence, on the basis of the criteria described, there can be no doubt that
there does exist "a disagreement on a point of law or fact, a conflict of legal
views or interests" and thus a "dispute" within the meaning of Art. I of the
Optional Protocol between Germany and the United States on all substantive
issues raised by the Applicant in the present proceedings.
b) The individual issues in dispute between the parties
3.20 Subject to a more 69mprehensive presentation during the discussion on
the merits of the case, the points in dispute between the two parties may be
enumerated and briefly described as follows:
(1) There exists a "dispute" about the interpretation and application of
Article 36 (1) of the Vienna Convention
3.21 Germany contends that in the case of Karl and Walter LaGrand the United
States failed to meet its legal obligation under Art. 36 (1) (b), last sentence, of
the Convention, to inform the two inmates "without delay" about their right to
contact the competent consular post, i.e., the German Consulate General in Los
Angeles. Indeed, Karl LaGrand was only given the respective advice on 21
December 1998, that is almost 17 years after his arrest in January 1982. 70
This obvious failure to comply with a key provision of the Convention
had far-reaching consequences:
a) Since Karl and Walter LaGrand were ignorant of the possibilities
open to them under the Convention, they were prevented from invoking
their rights enshrined in Art. 36 (1) (a) 2nd sentence and Art. 36 (1) (b)
1st and 2nd sentence, including, in particular, their right to
communicate with the German Consulate. b) Germany itself was deprived of its rights embodied in Art. 36 (1) (a),
1st sentence, and Art. 36 (1) (c) - provisions specifying and
concretising the consular functions laid down and recognised in Art. 5
(a), (e) and (i) of the Convention -, namely to establish contact and
communicate with their nationals in prison, and in particular its right to
arrange for adequate legal representation of the two inmates.
As will be demonstrated later, the ultimate execution of the LaGrand
brothers was causally linked to the above-described breaches of the
Vienna Convention by the United States.
3.22 Germany thus claims that the United States violated the rights of the
Applicant in a twofold way: First, the conduct of the United States impeded
Germany from exercising its protective functions spelled out in the said
provisions and thus directly violated a treaty-based right of Germany, and
second, Germany was injured in the person of its two nationals Karl and
Walter LaGrand, whose illegal treatment - with fatal results - it now raises by
way of diplomatic protection. With regard to this latter aspect, it is to be
pointed out that both Karl and Walter LaGrand had exhausted all local
remedies at their disposal before the present case was brought before the
International Court of Justice.
3.23 It is significant that until now the Respondent has not put forward any
legal arguments in order to justify its failure to comply with the Vienna
Convention on Consular Relations in the present case. Even if in the course of
the present proceedings the United States were to arrive at the conclusion that
the breach which it committed was so manifest that no justification whatsoever
were even arguable - a highly unlikely eventuality -, this admission could not
defeat the Court's jurisdiction on the ground of alleged non-existence of a
"dispute".
As the then Counsel for the United States in the Hostages Case, Mr.
Schwebel rightly pointed out, such an argumentation would simply be
"specious", because
"[t]he sum and substance of every case brought to the Court
under the compromissory clause of a treaty is the claim that the
Respondent's conduct violates its obligations under that treaty.
It would be anomalous to hold that the Court has jurisdiction
where there is an arguable claim that a treaty has been violated,
but lacks jurisdiction where there is a manifestly well-founded
claim that the same treaty has been violated. Such a contention
has no support in the jurisprudence or traditions of this Court, or
in the terms of the Optional Protocols. Indeed, any such rule
would provide an incentive for States to flout their treaty
obligations and to avoid offering any justification for their
conduct in order to defeat the Court's jurisdiction." 72
73
This view - which was implicitly followed by the Court - has
Germany's full support in the present proceedings.3.24 Moreover, there do exist several open questions between the Parties, with
regard to both matters of law and of fact. These unresolved questions underline
the existence of a dispute and deserve clarification within the present
proceedings.
3.25 (1) It remains unclear whether or not the United States will argue that at
the time of the arrest of the LaGrand brothers, the United States authorities
were not aware of the German nationality of Karl and Walter LaGrand and that
its conduct was therefore not in breach of Art. 36 (1) (b) of the Convention.
Germany, on its part, is convinced - and will show - that the authorities in the
United States did know the German nationality of the LaGrand brothers. Thus,
on this point we may be faced with a "disagreement on a ... fact" within the
meaning of the Mavrommatis jurisprudence.
3.26 In the very unlikely case that Germany does not succeed in establishing to
the satisfaction of the Court positive knowledge ab initio on the part of the
responsible officials of the United States of the German nationality of Karl and
Walter LaGrand at the time of their arrest, Germany will - in a purely
subsidiary and auxiliary manner - argue that the United States nevertheless
breached Art. 36 of the Convention because its officials failed to meet the
standard of due diligence required under the circumstances: If the Arizona
authorities had applied that standard, they would have detected that the
brothers LaGrand were - or, at least, could possibly be - German nationals. It
would then be for the Court to decide whether or not, and to what extent, Art.
36 of the Convention puts a State under an obligation to apply due diligence in
order to establish the nationality of its prisoners, at least in cases in which there
exist clear indications that such persons might be foreign nationals. Germany is
convinced that, due to the special circumstances of the LaGrand Case, the
United States was indeed under an obligation to that effect - a legal view which
is obviously not shared by its adversary. Thus this question also gives rise to a
"dispute" within the established meaning of the term.
3.27 (2) Moreover, Germany holds that Art. 36 (1) of the Convention not only
confers rights on Germany itself but grants individual rights to its two
nationals Karl and Walter LaGrand as well: rights that are now to be taken up
by the State of origin at the international level in the exercise of diplomatic
protection. The United States, on the contrary, seems to be of the view that the
provision in question does not grant any individual rights at all. Hence, there
also exists a dispute on this point.
3.28 (3) Finally, it would be artificial and unsustainable to draw a fine
distinction between a dispute about the application and interpretation of Art. 36
(1) itself and a dispute on the question of what remedies are owed for an
eventual breach of the obligations embodied in this provision. This latter
question - regarding which views undoubtedly differ sharply between the
parties - can only be dealt with adequately after a breach of the Vienna
Convention on Consular Relations has been ascertained.
3.29 In sum, the present case gives rise to various questions related to Art. 36
(1) of the Convention. Hence, in accordance with the meaning attributed to thatterm by the established jurisprudence of this Court, other authorities and the
unanimous opinion of publicists, there does exist a "dispute" between the
Parties on these questions.
(2) There exists a "dispute" about the application and interpretation of
Article 36 (2) of the Convention
3.30 Germany holds that the doctrine of procedural default embodied in the
municipal law of the United States, as it was applied in the proceedings again74
Karl and Walter LaGrand, is in violation of Art. 36 (2) of the Convention,
which provides that
"the laws and regulations of the receiving State ... must enable
full effect to be given to the purposes for which the rights
accorded under this article are intended."
Not only did federal courts of the United States consistently and
mechanically apply this doctrine in the present Case - with fatal 75
consequences for the brothers LaGrand to be described later -, but
officials of the United States executive branch, too, expressed the view
that the application of this doctrine would not infringe upon Art. 36 (2)
of the Convention. 76There can be no doubt, therefore, that there exists
a dispute between the parties on the question of whether or not the
application of certain doctrines or principles of United States domestic
law was compatible with Art. 36 (2) of the Convention in the present
Case.
(3) There exists a dispute about the legal effect of the Court's Order on
Provisional Measures of 3 March 1999 and the consequences arising
therefrom
3.31 The German position with regard to the legal effects arising from Orders
on Provisional Measures in general and the Court's Order of 3 March 1999 in
particular found its expression in a Press Release issued by the German
Ministry of Foreign Affairs on 4 March 1999, the day after the execution of
Karl LaGrand:
"The International Court of Justice (ICJ) has rendered a
77
decision binding under international law."
More specifically, on the day before, Germany had argued before the
U.S. Supreme Court with regard to the Order of the International Court
of Justice of 3 March 1999:
"The actions required by the ICJ Ruling are binding upon the
United States ... pursuant to Article 94 (1) of the United Nations
Charter, a treaty of the United States".78 The German Government reiterated this view in very clear terms
several weeks later in its reply to a respective interpellation from the
German Parliament:
"The ICJ has not only made a pronouncement of a
recommendatory character but rendered a mandatory decision.
On 3 March 1999, that is, still before the execution of Walter
LaGrand on 4 March 1999, it granted the request of the
[German] Federal Government for the indication of Provisional
Measures in full, and called on the United States, in a decision
taken in accordance with Article 41 of the ICJ Statute in
connection with Article 75 of the Rules of Court, as follows:
`The United States of America should take all measures at its
disposal to ensure that Walter LaGrand is not executed pending
the final decision in these proceedings ...'.
As is well known, the United States did not comply with this
legally binding decision of the ICJ." 79
3.32 The opinion expressed in these statements reflects a legal position to
which Germany has adhered firmly and consistently. It has also done so on
earlier occasions before this Court. For instance, in his oral argument in the
Fisheries Jurisdiction Case, Agent for Germany pleaded that certain acts of the
Government of Iceland were "illegal", inter alia, because
"these acts intentionally disregard the Court's Order of 17
August 1972, confirmed by Order of 12 July 1973, according to
which the Republic of Iceland should refrain from taking any
measures against German fishing vessels engaged in fishing
activities in the waters around Iceland outside the 12-mile
fishery80imit during the pendency of the proceedings before the
Court."
From this, Germany drew the conclusion - as it will do in the present
Case - that, in principle, and subject to a careful analysis of each
specific Order, the breach of an Order of the Court brings into
operation the ordinary principles of State responsibility as expressed,
for example, by the Permanent Court of Justice in 1927 in the Chorzów
Factory Case 81and further elaborated since by this Court and other
institutions, in particular the International Law Commission.
3.33 Germany therefore maintains - subject to a more detailed presentation
below - that
a) an Order of the Court falls within the scope of Art. 94 of the Charter
and is thus binding on the addressees, and
b) consequently, a breach of an Order of this Court brings into
operation the principles of State responsibility.3.34 Unfortunately, in view of the conduct of the United States vis-à-vis the
Court's Order of 3 March 1999 as well as on previous occasions, the
Respondent appears to hold quite a different view regarding the Orders on
Provisional Measures of this Court in general, and the specific Order at issue in
particular.
3.35 At one occasion, the divergence of views on this point has become
manifest even in the present context: In the proceedings initiated by Germany
before the U.S. Supreme Court to enforce and give effect to the Court's Order
of 3 March 1999, the United States Solicitor General took the view that
"an Order of the International Court of Justice indicating
provisional measures is not binding and does not furnish a basis
82
for judicial relief."
In sharp contrast to this, Germany, in its complaint initiating the
proceedings before the Supreme Court, had argued that
"The ICJ Ruling will be violated if the United States does not
ensure that a national of Germany, Walter LaGrand ... is not
executed ...".83
3.36 To further illuminate the existence of a dispute on this point, it is to be
recalled that the Governor of Arizona, Jane D. Hull, chose to simply disregard
the Court's Order without even considering the possibility that any legal effects
might arise from this ruling of the principal judicial organ of the United
Nations. Possibly, in doing so, the Arizona Governor let herself be inspired by
the views expressed by the Department of State in its amicus curiae brief to the
Supreme Court in the Breard Case, in which it asserted:
"The better reasoned position is that such an order is not
binding." 84
In the same case, in her letter to the Governor of Virginia of 13 April
1998, Secretary of State Albright characterised the Order of the Court
of 9 April 1998 - containing a text virtually identical to that of 3 March
1999 - as "non-binding". 85
3.37 Neither did the United States Federal Government take any steps to
enforce the ruling of the International Court of Justice in the LaGrand Case.
This was openly admitted by Mr. Foley at a Press Conference of the US State
Department on 3 March 1999:
"Question: Does the State Department take a position, other
than simply transmitting the documents?
Mr. Foley: No, we have not. We simply transmitted the
86
documents."3.38 In sum, there does exist a fundamental dispute between the parties on the
question whether and to what extent binding effect can be attributed to the
Orders of the Court on Provisional Measures.
(4) There exists a "dispute" with regard to the remedies owed for the
violation on the part of the United States of its international legal obligations
3.39 There also exists a dispute between the parties with regard to the remedies
owed for the violation of both the aforementioned provisions of the Vienna
Convention on Consular Relations and the Court's Order of 3 March 1999.
3.40 Whereas Germany holds that the ordinary principles of State
responsibility must apply in the present case, the United States seems to be of
the opinion that the consequences arising from a violation of these
international legal obligations are very limited, if such consequences do exist
at all.7
3.41 If one takes the view - as the United States apparently does - that Orders
of the International Court of Justice indicating Provisional Measures do not
create legal obligations, it is only consistent to further hold that disregard for
these Orders cannot entail responsibility. 88This view, however, is not shared
by Germany.
3.42 With regard to the violations of the Convention itself, the United States
has not offered Germany any remedy for its wrongful conduct. In light of its
conduct in the Breard Case, it does not seem that the United States is willing to
accept that a breach of the legal obligations at stake in the present case obliges
it to any reaction. Germany, on its part, maintains that in principle the whole
range of remedies available under the international law of State responsibility 89
also applies to the particular violations which occurred in the LaGrand Case.
2. The existence of a dispute "arising out of the interpretation or
application of the [Vienna] Convention" on Consular Relations
a) Introductory remarks
3.43 By using the formula "arising out of the interpretation or application",
Art. I of the Optional Protocol employs a rather classical wording: Not only
had this formula already been used in many similar jurisdictional clauses, it
also follows verbatim the text of a model clause adopted by the Institut de
Droit International in 1956. 90 Commenting on the (envisaged) jurisdictional
clause, the initiator and rapporteur of the respective Commission of the Institut,
the late Professor Guggenheim, could thus rightly state:
"Cette formule - qui couvre toute la gamme des différends
juridiques possibles au sujet d'une Convention ou d'une
Résolution - étant devenue d'un usage généralisé dans les
clauses des actes prévoyant la juridiction de la Cour, il n'y a
91
aucune raison d'en faire abstraction dans la clause modèle." In attributing such a wide scope to the formula ("toute la gamme des
différends juridiques possibles"), Professor Guggenheim relied on the
authority of the Permanent Court of International Justice, which had
advocated a broad understanding of the term "application" in two
judgments delivered in 1925 and 1927 respectively. In the Chorzów
Factory Case, confirming the formula developed in the Mavrommatis
Case, and after expressly rejecting a strictly literal meaning of the
word "application" in a jurisdictional clause virtually identical with the
one embodied in the Optional Protocol, the Court stated in its Judgment
of 26 July 1927 that
"`[A]pplication' is a wider, more elastic and less rigid term than
`execution', but also that `execution ... is a form of
application'."94
Giving special emphasis to the intentions of the parties, and thus
confirming the basic rule that the ver95purpose of interpretation is to
ascertain such intention from a text - a rule which has now found its
expression in Article 31 (1) of the Vienna Convention on the Law of
Treaties - , the Court further argued:
"For the interpretation of [the jurisdictional clause], account
must be taken ... also and more especially of the function which,
in the intention of the contracting Parties, is to be attributed to
this provision." 96
3.44 In order to clarify such intention in the present case, Germany does not
have to rely on remote, ambivalent and contradictory sources. Rather, these
intentions find their unequivocal expression in the text of the Optional Protocol
itself, whose Preamble provides:
"The States Parties to the present Protocol and to the Vienna
Convention on Consular Relations ...
Expressing their wish to resort in all matters concerning them in
respect of any dispute arising out of the interpretation or
application of the Convention to the compulsory jurisdiction of
the International Court of Justice ..." (emphasis added).
The relevance of the preamble for the purpose of interpreting the legal
instrument of which it is an integral part - in particular with regard to
the ascertainment of the intentions of the parties that led to the
conclusion of the treaty - is generally accepted. 97 Thus, in order to
determine the legal purport of the operative provisions of a treaty, the
preamble plays an important role both as a tool of systematic ("context"
within the meaning of Article 31 [2] of the Vienna Convention on the
Law of Treaties) as well as of teleological interpretation (Article 31 [1]
of the Vienna Convention).3.45 The wording of the Preamble to the Optional Protocol illuminates the
comprehensive scope of disputes that the parties intended to bring within the
jurisdiction of the Court. In this respect the Preamble confirms the text of Art. I
of the Optional Protocol itself. A careful reading of the Memorial of the United
States in the Hostages Case has led Germany to conclude that this assessment
98
is shared by the Respondent in the present proceedings.
b) The dispute concerning Article 36 (1) and Article 36 (2) of the
Convention
3.46 (1) Germany claims, first, that the United States violated the Vienna
Convention by failing to provide its nationals, Karl and Walter LaGrand, with
the notice required by Art. 36 (1) (b), last sentence, of the Convention,
according to which
"[t]he said authorities [i.e., those of the receiving State] shall
inform the person concerned without delay of its rights under
this sub-paragraph".
3.47 By violating this provision in the case of the LaGrand brothers, the
authorities of the United States prevented Germany from exercising its rights
under Art.36 (1) (a) and (c) of the Convention, namely its freedom
"to communicate with nationals of the sending State and to have
access to them" (Art. 36 [1] [a] Vienna Convention)
and the various rights conferred upon the sending State vis-à-vis its
nationals in prison, custody or detention as provided for in Art. 36 (1)
(b) of the Convention, including the right
"to visit, ... to converse and correspond with him and to arrange
for his legal representation."
3.48 Additionally, by not providing the required notice to the two detainees,
the United States violated Art. 36 (1) (a), 2nd sentence, of the Convention,
where it is stated that
"[n]ationals of the sending State have the same freedom with
respect to communication with and access to consular officers
of the sending State."
Germany raises this point as a matter of diplomatic protection on behalf
of Walter and Karl LaGrand.
It is beyond reasonable doubt that all these issues are questions relating
to the interpretation and application of the Vienna Convention and thus
fall within the scope of Art. I of the Optional Protocol.
3.49 (2) Germany's second claim relates to the question of whether or not the
laws and regulations of the United States available to implement the provisionslaid down in Art. 36 (1) of the Convention are sufficient in view of Art. 36 (2)
of the Convention, according to which such laws and regulations
"must enable full effect to be given to the purposes for which
the rights accorded under this Article are intended".
Germany claims that, by applying the rule of procedural default in a
mechanical manner to the case of the LaGrands, the United States has
violated Art. 36 (2) of the Vienna Convention by preventing the
effective exercise of the right to consular assistance after the jury trial
and the sentencing phase have been concluded. This issue is clearly a
dispute on the interpretation and application of the Vienna Convention
and, as such, falls within the scope of Art. I of the Optional Protocol.
3.50 Germany therefore submits that, since both claims arise out of the
interpretation and application of the Convention, the Court has jurisdiction to
hear them.
c) Remedies owed for the violation of the Vienna Convention falling
within the scope of Article I of the Optional Protocol
3.51 In the Breard Case the United States argued that the question of the
remedies pursued by Paraguay did not lead to a dispute "about the
interpretation or application of the Vienna Convention because "the Vienna
Convention does not provide for such an extraordinary form of relief." 99
However, this allegation was rejected by the Court in its Order of 9
April 1998 which held that
"there exists a dispute as to whether the relief sought by
Paraguay is a remedy available under the Vienna Convention, in
particular in relation to Article 5 and 36 thereof; and ... this is a
dispute arising out of the application of the Convention within
the meaning of Article I of the Optional Protocol concerning the
Compulsory Settlement of Disputes of 24 April 1963." 100
By this statement the Court referred to its established jurisprudence
according to which
"[d]ifferences relating to reparations, which may be due by
reason of failure to apply a convention, are consequently
101
differences relating to its application."
3.52 Moreover, less than two months before the oral hearings in the Breard
Case, the Court had rejected a similar objection with regard to its jurisdiction
raised by the United Kingdom and the United States in the case concerning
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie. There, the parties differed, inter
alia, on the question of whether or not the incident at Lockerbie was governed
by the Montreal Convention, the only legal instrument providing ajurisdictional basis for the Court to decide on the merits of the case. The Court
held:
"A dispute thus exists between the Parties as to the legal régime
applicable to this event. Such a dispute, in the view of the
Court, concerns the interpretation and application of the
Montreal Convention, and, in accordance with Article 14,
paragraph 1, of the Convention, falls to be decided by the
102
Court."
3.53 Thus, the Court's unequivocal position may be summarised as follows:
(a) a dispute whether or not the violation of a provision of the Vienna
Convention gives rise to a certain remedy is a dispute concerning "the
application and interpretation" of the aforesaid Convention, and thus
falls within the scope of Art. I of the Optional Protocol and,
(b) in more general terms, a jurisdictional clause providing for the
jurisdiction of this Court in disputes concerning the "interpretation and
application" of a specific "legal régime" covers the question whether or
not this very legal régime is applicable or not in a given case. 103
3.54 If these criteria are applied to the present dispute over the remedies owed
for a breach of certain provisions of the Vienna Convention, there can be no
doubt that this question falls within the scope of Art. I of the Optional
Protocol. Even if the United States were to take the view that the Vienna
Convention constituted a sort of "self-contained régime" - an assertion which
Germany contests -, the answer would be the same because the subject-matter
of the question is a dispute regarding the interpretation and application of the
Vienna Convention within the meaning which the established jurisprudence of
this Court has attributed to this and other virtually identical jurisdictional
clauses.
d) The dispute concerning the conduct of the United States vis-à-vis the
Court's Order of 3 March 1999
3.55 Germany brought the present Case before the International Court in order
to have its rights under the Vienna Convention enforced. The Court issued its
Order of 3 March 1999 precisely in order to preserve those rights pending its
decision on the merits. The Court stated that it would
"not order interim measures in the absence of `irreparable
prejudice ... to rights which are the subject of dispute ...'"04
and that
"the execution of Walter LaGrand ... would cause irreparable
harm to the rights claimed by Germany in this particular
105
case". It is certainly true - as Paraguay put it in the Breard Case - that
"[t]he Order therefore constituted the Court's provisional
106
`interpretation and application' of the Convention."
3.56 With due regard to the wording of Article I of the Optional Protocol in
conjunction with the intentions of the parties as expressed in its Preamble,
there can be no reasonable doubt that the dispute between the parties on the
question of whether the United States were obliged to comply and did comply
with the Order, is therefore a dispute
"arising out of the interpretation or application of the
Convention" (emphasis added),
and thus a dispute falling within the jurisdiction of the Court as
established in Article I of the Optional Protocol. It is to be stressed
once again that
"[t]he primacy of the text, especially in international law, is the
107
cardinal rule for any interpretation."
Thus, with due regard to the ordinary meaning of the text of the
Optional Protocol, including its Preamble, and the aims and purposes
attributed to this legal instrument by the parties themselves, Germany
holds that the dispute relating to the non-compliance of the United
States with the Court's Order of 3 March 1999 is covered by the
jurisdictional clause in Article I of the Optional Protocol.
3.57 Questions relating to the non-compliance with a decision of the Court
under Article 41 para. 1 of the Statute, e.g. Provisional Measures, are an
integral component of the entire original dispute between the parties. This was
already confirmed by the Permanent Court of International Justice in its Order
of 5 December 1939 where the Court stated
"the parties to a case must abstain from any measure capable of
exercising a prejudicial effect in regard to the execution of the
decision to be given and, in general, not allow any step of any
kind to be taken which might aggravate or extend the
dispute."108
3.58 The same line of reasoning - although developed in a much more detailed
and explicit manner - was followed in the Judgments of the International Court
of Justice in the Fisheries Jurisdiction Cases (1972-1974) brought by the
United Kingdom and the Federal Republic of Germany against Iceland.
There, Germany expressly included in its submissions certain post-
application actions by Iceland - e.g. the forcible interference with
German-registered fishing vessels by Icelandic coastal patrol boats -
which had taken place after the Court had issued Orders on Provisional
Measures calling upon Iceland to refrain from actions to aggravate or extend the dispute over fishing rights in waters surrounding the
island.109
In its Judgment of 25 July 1974 on the merits of the case, the Court
held that it had jurisdiction to consider this claim since
"[t]he matter raised therein is part of the controversy between
the Parties, and constitutes a dispute relating to Iceland's
extension of its fisheries jurisdiction. The submission is one
based on facts subsequent to the filing of the Application, but
arising directly out of the question which is the subject-matter
of that Application. As such it falls within the scope of the
Court's jurisdiction defined in the compromissory clause of the
Exchange of Not110of 19 July 1961 [the instrument conferring
jurisdiction]."
Earlier in the same Judgment, and in a wider context, the Court had
already explained the reasons for the rather broad scope it was willing
111
to attribute to its jurisdiction in this case. It started by saying that
"[t]he present dispute was occasioned by Iceland's unilateral
extension of its fisheries jurisdiction. However, it would be too
narrow an interpretation of the compromissory clause to
conclude tha112he Court's jurisdiction is limited to [this
question]."
And the Court went on to explain that
"[f]urthermore, the dispute before the Court must be considered
in all its aspects. ... Consequently, the suggested restriction on
the Court's competence not only cannot be read into the terms
of the compromissory clause, but would unduly encroach upon
the power of the Court to take into consideration all relevant
113
elements in administering justice between the Parties."
These principles can and should be applied, mutatis mutandis, to the
present Case. Indeed, the similarities in the Fisheries Cases and in the
present Case with regard both to the legal as well as to the factual
setting are striking:
3.59 In the present Case the dispute was, in the Court's own words,
"occasioned" by the United States' failure to comply with certain provisions of
the Vienna Convention. However, in order to consider the dispute "in all its
aspects", it would "be too narrow an interpretation of the compro114sory
clause to conclude that the Court's jurisdiction is limited to" this question.
The submission relating to the non-compliance on the part of the United States
with the Court's Order of 3 March 1999 "is one based on facts subsequent to
the filing of the Application, but arising directly out of the question which is
the subject-matter of that Application." Restrictions on the Court's competence
with regard to this question "not only cannot be read into the terms of thecompromissory clause", that is, in the present Case, Article I of the Optional
Protocol, "but would unduly encroach upon the power of the Court to take into
consideration all relevant elements in administering justice between the
115
Parties." Indeed, the taking into account of the conduct of the United States
vis-à-vis the Court's Order of 3 March 1999 is certainly an essential element in
the settlement of the present dispute by judicial means, and thus in the
administration of justice within the meaning attributed to this expression in the
Fisheries Case.
3.60 Finally, Germany holds that the Court has jurisdiction over the dispute
with respect to the Order also by virtue of its inherent jurisdiction. As the
International Court of Justice has explained in the Nuclear Tests Cases
"[s]uch inherent jurisdiction ... derives from the mere existence
of the Court as a judicial organ established by the consent of
States, and is conferred upon it i116rder that its basic judicial
functions may be safeguarded."
The Court described the purpose and scope of its authority - emanating
directly from its status as a court of justice - as follows:
"[T]he Court possesses an inherent jurisdiction enabling it to
take such action as may be required, on the one hand to ensure
that the exercise of its jurisdiction over the merits, if and when
established, shall not be frustrated, and on the other, to provide
for the orderly settlement of all matters in dispute, to ensure the
observance of the `inherent limitations on the exercise of the
judicial function' of the Court, and to `maintain its judicial
character (Northern Cameroon, Judgment, I.C.J. Reports 1963,
at p. 29)'."17
The question of whether or not an Order of the Court on Provisional
Measures - issued in a specific case pending before the Court - has been
violated or not by one of the parties, undoubtedly falls within the scope
of the inherent jurisdiction of the Court thus described.
3. Conclusion
3.61 In sum, there exists a "dispute", within the meaning given to this term by
uniform jurisprudence and scholarly opinion, with regard to all issues raised in
the present proceedings. This dispute arises out of the interpretation and
application of the Vienna Convention on Consular Relations and thus falls
within the scope of Art. I of the Optional Protocol. It is therefore respectfully
submitted that the Court is competent to hear all claims brought by the Federal
Republic of Germany.
V. The admissibility of the claims brought by Germany
3.62 A comprehensive analysis of the applicable legal instruments, of the
relevant caselaw and the pertinent writings of publicists has indicated nothingthat could give rise to any doubts with regard to the admissibility of the present
application. Therefore, Germany holds that the application which it lodged on
2 March 1999 as well as each and every claim comprised therein is admissible.
No developments since then have rendered the application inadmissible in
whole or in part.
Although the burden to prove the contrary falls fully within the
responsibility of the Respondent in the present case, Germany - for the
reasons set out at the very beginning of this part of its Memorial -
avails itself of the opportunity to briefly address the issues of the timing
of its application as well as the argument of mootness. 118Furthermore,
in the context of admissibility, Germany will deal with the question of
the nationality of Karl and Walter LaGrand which might be regarded as
having a direct impact on the ius standi of Germany before this
Court. 119
1. The timing of the German application
3.63 Considering certain reproaches regarding Germany's timing of its
application,120 the Court's attention is drawn to the fact that the applicable
treaty provisions do not provide for any specific time-limit or moment in time
at which an application is to be brought before the Court.
3.64 Germany is fully aware that - even in the absence of any such provision -
"delay on the part of a claimant State may render an application
inadmissible",
as this Court has stated in its Judgment of 26 June 1992 in the case
concerning Certain Phosphate Lands in Nauru. 121At the same
occasion, the Court went on to specify:
"[I]nternational law does not lay down any specific time-limit in
that regard. It is therefore for the Court to determine in the light
of the circumstances of each case wheth122the passage of time
renders an application inadmissible."
The subject-matter of the Nauru Case was the question of the
rehabilitation of phosphate land worked out before 1 July 1967 by
Australia. The acts allegedly constituting a breach of an international
obligation had been completed before, and did not extend beyond, that
day. A claim as to rehabilitation was raised by the Nauruan
Government on 31 January 1968 and rebutted by the Australian
Government on 4 February 1969. As the Court pointed out, it was on
this latter day at the latest that
"Nauru was officially informed ... of the position of Australia
on the subject of rehabilitation of the phosphate land". 123 Thus, it was at this very moment that the opposing claims with regard
both to the facts and to the law governing the dispute were ultimately
formulated and made known to the parties. From this date, it took
Nauru more than 20 years to resolve to bring the dispute to the
International Court. But this circumstance did not prevent the Court
from holding that
"Nauru's Application was not rendered inadmissible by passage
of time".124
Considering such recent jurisprudence of the Court, it seems to be
beyond reasonable doubt that "passage of time" cannot constitute a bar
to the admissibility of the claims raised by Germany in the present case.
3.65 This is even more obvious if one takes into account the differences
between the legal and factual situations involved in the two cases:
First of all, it was only seven days before it brought the dispute to the
Court that Germany had become aware of all the relevant facts
underlying its claim.125 These seven days were not only needed for the
preparation of the Application but were equally used for intensive
diplomatic and political activities at all levels.
Second, Germany only became aware of the imprisonment and the
death sentence against its two nationals at the end of the year 1992, by
mere coincidenc126nd in particular without any active assistance by the
United States. Germany immediately engaged in a variety of
activities at the diplomatic and consular level in order to help to
minimise the consequences which had arisen from the United States'
breach of obligations under the Vienna Convention on Consular
Relations. In so doing, Germany, until 23 February 1999, the date on
which it became apparent that the Arizona authorities had been fully
aware of the German nationality of Karl and Walter LaGrand from the
beginning, chose to pursue the avenue of moral and political appeals
rather than a strictly legal approach. These appeals were carried out
assiduously, as described in Part Two of the present Memorial
(Statement of Facts).
Germany decided in favour of this alternative because it did not want
its steps to negatively affect the efforts to save the LaGrand brothers
from execution. Thus, several motions with the aim of reversing the
death sentences pronounced against the brothers were pending before
U.S. courts. Germany was determined to avoid any impression that it
was interfering in these proceedings.
Germany had full confidence that U.S. courts would ultimately rectify
the obvious violations of international law involved. Besides, Karl
LaGrand was the first German citizen sentenced to death and actually
executed in the United States since the creation of the Federal Republic
of Germany. The first and only experience Germany had hitherto had in 127
this regard was the case of Jens Soering in the 1980's, in which a
death sentence could finally be avoided. It was only after the shocking
revelation on 23 February 1999 by State Attorney Peasley that the
authorities of the State of Arizona had been aware since 1982 that Karl
and Walter LaGrand were German nationals, that Germany felt
compelled to change its course and decided to bring the case before the
International Court of Justice.
3.66 Under these circumstances, the timing of the German application cannot
raise any doubts as to admissibility. Neither did it lead to a trial by ambush. On
the contrary, respect towards both this Court and the Respondent commands
that a State take the step towards settlement by the principal judicial organ of
the United Nations only after having carefully weighed all alternatives and
having duly considered the legal and factual problems of the case as well as the
political implications to which such an Application may give rise.
Germany thus chose to bring this case to the Court only after having
a) become aware of all relevant facts,
b) thoroughly examined the pertinent law in order to
ensure a sound legal argumentation,
c) considered and exhausted the appropriate alternatives, and finally
d) carefully weighed the political implications of such a step.
3.67 Furthermore, an essential part of the German claim relates to the question
of the consequences arising from the breach of the Court's Order of 3 March
1999 indicating Provisional Measures, a question to which considerations as to
"passage of time" obviously cannot apply.
3.68 Third, Germany would like to draw the attention of the Court to a
statement in its Judgment of 11 June 1998 on Preliminary Objections in the
case concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria). There, a Nigerian submission to the effect that
Cameroon's application had not been brought before the Court in "due time"
and that this circumstance was to be seen as a violation of the principle of good
faith, was rebutted by the Court in the following words:
"The Court observes that the principle of good faith is a well-
established principle of international law. ...
The Court furthermore notes that although the principle of good
faith is `one of the basic principles governing the creation and
performance of legal obligations . . . it is not in itself a source of
obligation where none would otherwise exist' (Border and
Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988,
p. 105, para. 94). There is no specific obligation in international law for States to inform other States parties to the Statute that
they intend to subscribe or have subscribed to the Optional
Clause. Consequently, Cameroon was not bound to inform
Nigeria that it intended to subscribe or had subscribed to the
Optional Clause.
Moreover:
A State accepting the jurisdiction of the Court must expect that
an Application may be filed against it before the Court by a new
declarant State on the same day on which that State deposits
with the Secretary-General its Declaration of Acceptance.
(Right of Passage over Indian Territory, Preliminary
Objections, Judgment, I.C.J. Reports 1957, p. 146.)
Thus, Cameroon was not bound to inform Nigeria of its
intention to bring proceedings before the Court. In the absence
of any such obligations and of any infringement of Nigeria's
corresponding rights, Nigeria may not justifiably rely upon the
principle of good faith in support of its submissions." 128
The same holds true - mutatis mutandis - in the present Case: Since the
applicable jurisdictional basis, Art. I of the Optional Protocol, does not
provide for any temporal limitations or restrictions of any other kind,
the principle of good faith in itself can in no way limit Germany's
discretion in this respect.
3.69 Finally, it is to be repeated once again that Germany has been active at all
political and diplomatic levels imaginable before bringing the present dispute
before the International Court of Justice - a step taken after due and careful
deliberation. Germany drew attention to this circumstance in its argument
before the U. S. Supreme Court in the immediate aftermath of this Court's
Order of 3 March 1999 and just hours before Walter LaGrand was executed:
"As this Court will appreciate, it is not a small step for a
sovereign state and close ally of the United States to bring
129
proceedings against the United States ... in the ICJ ... ."
2. The German application has not become moot due to subsequent
developments
3.70 On several occasions in the past, the Court has found that certain events
subsequent to the filing of an application may
"`render an application without object' and `therefore the Court
is not called upon to give a decision thereon'". 130
In the present Case, the only line of reasoning fitting into this pattern
would be the assumption that the execution of Walter LaGrand could have deprived the present application of its object. From the viewpoint
of domestic criminal procedure it is certainly true that
"if the condemned man's sentence is executed, the matter is
terminated and becomes, in the Anglo-Saxon parlance, `moot'.
The international incorrectness of the situation, however, is not
mooted." 131
Holding otherwise would wholly misinterpret the object and purpose of
the present Application. The present Case - to emphasise this once
again - deals with a specific and ongoing dispute on the application and
interpretation of the Vienna Convention on Consular Relations, on the
remedies available to Germany for violations of certain of its
provisions, and on the legal consequences arising from the non-
observance of the Court's Order of 3 March 1999. It is obvious that
none of these issues have lost their relevance following the execution of
Walter LaGrand. 132
3.71 A comparison with the Nuclear Tests Case affirms this finding. In this
case, the Australian Government had requested the Court to adjudge and
declare that
"the carrying out of further atmospheric nuclear weapon tests in
the South Pacific Ocea133s not consistent with applicable rules
of international law."
When France later unilaterally entered into a binding commitment to
cease further atmospheric nuclear testing, it was indeed arguable that
the Australian claim thereby lost its object.
3.72 One of Germany's claims in the present Case is for the Court to adjudge
and declare that
"the United States should provide G134any a guarantee of the
non-repetition of the illegal acts."
Since such a guarantee - binding under international law - has not yet
been given, there still exists a difference between Germany's
submissions in its Application and in the present Memorial on the one
hand and the factual and legal reality on the other, even considering
developments subsequent to the filing of the application. The same is
true for all other claims which Germany has asked the Court to decide
upon. Germany is convinced that the question of "mootness" as a bar to
the admissibility of a case could - if at all - only come into play after
subsequent developments have led to a complete congruity between the
Applicant's claims and the reality, both in law and in fact. This,
however, is obviously not the case.
3. The nationality of Karl and Walter LaGrand3.73 Immediately after the German Consulate General in Los Angeles had
learned about the imprisonment of Walter and Karl LaGrand, that is, in June
1992, it engaged in a careful and comprehensive inquiry into the nationality
status of the two brothers. In collaboration with the competent administrative
bodies in the Federal Republic of Germany the following facts with regard to
their nationality were established:
Walter Bernhard and Karlheinz LaGrand were born on 26 January 1962
in Dillingen/Germany, and on 10 October 1963 in Augsburg/Germany
respectively, as sons out-of-wedlock of Emma Magdalena Gebel, a
German national. 135 At the time of birth of the two brothers the
pertinent provision of the German law on nationality - the Reichs- und
Staatsangehörigkeitsgesetz of 1913 - provided in its § 4 (1), first
sentence:
"Upon birth, the child of a German [father] born in wedlock
acquires the nationality of the father, a child of a German
[mother] born out of wedlock acquires the nationality of the
136
mother."
It was by virtue of this provision that Karl and Walter LaGrand became
German nationals by origin. This was certified on 15 March 1993
through the issuance of "certificates of citizenship" for both brothers by
the competent 137hority, in this case, the Landrat des Wetteraukreises
in Friedberg. Just for the sake of completeness it might be added that
acquisition of nationality by virtue of the ius sanguinis principle - as
expressed in § 4 (1) RuStAG 138- is a social fact which constitutes a
genuine connection/link between an individual and the country of
origin within the meaning tha139his term has been given in the
jurisprudence of this Court. As Judge Rezek rightly put it:
"Sur le plan des relations internationales, il est également
certain que l'attribution de nationalité jure sanguinis, ayant pour
base la national140 parentale, n'a pas fait l'objet de contestations
manifestes ... ."
Consequently, it has never been contested that a nationality based on
this principle provides the State which has granted it a title to the
exercise of diplomatic protection and to the institution of international
judicial proceedings.
3.74 The German nationality of the two brothers was not affected by any
subsequent events, i.e. in particular neither by their moving to the United
States nor by their adoption by Mr. Masie LaGrand. According to the
applicable rules of the German law on nationality, neither of these
circumstances lead to the loss of German nationality. Thus, Karl and Walter
LaGrand never lost their German nationality; they were German nationals from
their birth until their death.3.75 These facts appear to be undisputed between the parties. As Germany
discovered in the course of the preparation of the present Memorial, several
government agencies within the United States were aware of the German
nationality of Karl and Walter LaGra141right from the moment of the
imprisonment of the two brothers. Even before, upon their entry into the
United States they were both provided with Alien Registration Cards. 142
Further, the Immigration & Naturalization Service of the US-Department of
Justice treated them as (deportable) aliens, in concrete terms, as German
143
citizens. That Karl and Walter LaGrand never acquired the144tionality of the
United States is equally undisputed between the parties.
3.76 Hence, since Karl and Walter LaGrand were German nationals all their
life, and since they never acquired any other nationality, Germany is entitled to
bring this Case before the International Court of Justice, and the claims which
it raises here are admissible.
VI. Conclusion
3.77 For the reasons given in the present Chapter, Germany respectfully
requests the Court to declare that it has jurisdiction to hear this case and that
each and every claim Germany has raised is admissible.
3.78 Germany is aware that findings on questions of jurisdiction and
admissibility within the framework of a procedure on Provisional Measures are
of a merely prima facie nature and do not prejudge the question of the Court's
jurisdiction to rule on the merits. However, with all due respect, it might be
permitted to recall that both in its Order concerning the request for the
indication of Provisional Measures in the Breard Case as well as in the
respective Order in the LaGrand Case, the Court has not expressed the
slightest doubt about its jurisdiction and the admissibility of the various claims.
This is remarkable in so far as in the former case the United States had raised
certain objections to the Court's jurisdiction. These objections were, however,
categorically rejected by the Court in their entirety.145
Part Four
Obligations breached by the United States
4.01 Germany will now turn to an analysis of the obligations which were
breached by the United States. As Germany will elaborate in necessary detail,
by not informing the LaGrand brothers of their right to have the U.S.
authorities notify the German consulate of their arrest and detention, and by
thus not providing the consulate with access to them, and by ultimately
executing them, the United States has violated the following obligations
embodied in Art. 36 of the Vienna Convention on Consular Relations:
(1) First of all, the obligation to inform a national of the
sending state without delay of his or her right to inform
the consular post of his home State of his arrest or
detention (Art. 36 [1] [b]); but also, as a consequence (2) the obligation to grant the consulate of the sending
State the freedom of communication with its nationals
detained by the receiving State, including its right to
visit, and, vice versa, the obligation to grant the
nationals of the sending State the freedom to
communicate with and have access to the consulate of
the sending State (Art. 36 [1] [a] and [c]).
4.02 In addition, by upholding laws that prevent a defendant from raising the
said violations of Art. 36 (1) of the Vienna Convention before its domestic
courts and by not providing for any effective mechanism to remedy the
violation of the correlative rights, the United States has committed a breach of
its obligation
(3) to enable full effect to be given to the purposes for
which the rights embodied in Art. 36 (1) are accorded
(Art. 36 [2] of the Vienna Convention on Consular
Relations).
4.03 Further, by its failure to allow German nationals the exercise of the rights
accruing to them as aliens under Art. 36 of the Vienna Convention, the United
States has also breached
(4) the minimum rights of aliens in foreign States,
giving rise to the law of diplomatic protection.
4.04 Finally, by not observing the Order on Provisional Measures pronounced
by the Court on 3 March 1999 "to take all measures at its disposal to ensure
that Walter LaGrand is not executed pending the final decision" of the
International Court of Justice on the matter, 146the United States has not abided
by
(5) its obligation under Art. 94 of the Charter of the
United Nations and Art. 41 of the Statute of the
International Court of Justice "to comply with the
decision of the International Court of Justice in any case
to which it is a party" and its corresponding duty not to
render impossible the judicial task of the Court.
In the following, Germany will set out these violations in detail.
I. Breaches of Article 36 of the Vienna Convention on Consular Relations
4.05 As the United States itself has explained before this Court in the Hostages
case:
"The right of consular officers in peacetime to communicate
freely with co-nationals has been described as implicit in the
consular office, even in the absence of treaties ... . As Article 5
of the [Vienna] Convention makes plain, a principal function of the consular officer is to provide varying kinds of assistance to
nationals of the sending State, and for this reason the channel of
communication between consular officers and nationals must at
all times remain open. Indeed, such communication is so
essential to the exercise of consular functions that its preclusion
would render m147ingless the entire establishment of consular
relations ... ."
Germany fully shares this assessment of the importance of the rights
and obligations enshrined in Art. 36 of the Vienna Convention.
Unfortunately, in the present Case, the United States itself has not acted
according to this statement and has not ensured that Art. 36 of the
Vienna Convention was complied with properly. By not advising the
LaGrand brothers of their right under Art. 36 (1) (b) of the Convention
to inform the German consulate, by thereby preventing Germany from
exercising its rights to access to and communication with its nationals
guaranteed by Art. 36 (1) (a) and (c), and by upholding internal laws
which do not enable full effect to be given to the rights provided for by
Art. 36 (1), the United States has breached its obligations under Art. 36
of the Vienna Convention.
1. Omission of advice to German nationals on their right to consular
access in violation of Article 36 (1) (b) of the Convention
4.06 There cannot be any doubt whatsoever that the United States has violated
Art. 36 (1) (b) of the Vienna Convention by not informing the German
consulate of the arrest and detention of the LaGrand brothers "without delay"
in 1982. Thus, it was only in mid-1992 that the German Consulate General in
Los Angeles became aware of the fact that the two German nationals sentenced
to death were being held in prison.
4.07 According to Art. 36 (1) (b) of the Vienna Convention on Consular
Relations,
"[i]f he so requests, the competent authorities of the receiving
state shall, without delay, inform the consular post of the
sending state if, within its consular district, a national of that
state is arrested or committed to prison or to custody pending
trial or is detained in any other manner. Any communication
addressed to the consular post by the person arrested, in prison,
custody or detention shall also be forwarded by the said
authorities without delay. The said authorities shall inform the
person concerned without delay of his rights under this sub-
paragraph".
Accordingly, once a national of the sending State is arrested and
detained, a two-step-procedure must follow: First, the arrested and
detained person has to be advised of his or her right to inform the
sending State's consulate of the arrest. Second, if he or she then wishes
to address a communication concerning his or her arrest or detention to the consulate, the authorities of the receiving State must forward this
communication to the consulate of the sending State in the consular
district concerned.
4.08 The purpose of this provision is clear: the arrested or detained foreigner
shall have access to the consular facilities of his or her home State at any time.
As Professor Luke Lee has observed:
"Essential to the fulfilment of a consul's protective functions are
his right to be informed immediately of a detention of nationals
of the sending State, to visit them in prison, and to assist them
in legal and other matters." 148
In no way was this provision an innovation made by the Vienna
Convention. It only confirmed a long-standing practice established by
bilateral treaties on consular relations to the same effect.
4.09 The right to notification of 149's consulate has even been considered part
of customary international law. For instance, when Californian officials
denied the Mexican consulate the right to communication with a Mexican
national detained in the State of California, the United States Department of
State advised the local authorities that
"[e]ven in the absence of applicable treaty provisions this
Government has always insisted that its consuls be permitted to
visit American citizens imprisoned throughout the world ... ." 150
Subsequent to the intervention of the Federal authorities, California
allowed the Mexican consul to visit the detainee.
4.10 Following the adoption of the 1963 Vienna Convention, it was the United
States in particular which insisted - and rightly so - on strict compliance with
the provisions of the Convention, even by countries which had not yet ratified
it. For instance, in a case which arose before the ratification of the Vienna
Convention by Syria, Syria detained United States citizens without informing
the U.S. consulate. In an instruction to its consul to Syria, the U.S. Department
observed that
"[t]he right of governments, through their consular officials, to
be informed promptly of the detention of their nationals in
foreign states, and to be allowed prompt access to those
nationals, is well established in the practice of civilized nations.
The recognition of these rights is prompted in part by
considerations of reciprocity. ... The Government of the Syrian
Arab Republic can be confident that if its nationals were
detained in the United States the appropriate Syrian officials
would be promptly notified and allowed prompt access to those
nationals." 1514.11 There is one important difference between the rules usually to be found in
bilateral treaties on consular relations and the Vienna Convention. Whereas the
bilateral treaties either provide for automatic notification of the consulate or
make the information of the consulate dependent on the demand of the
detainee, and thereby also of his or her knowledge of his or her rights, the
Vienna Convention has devised an elaborate mechanism to ensure that, on the
one hand, the detainee is informed of his or her rights but, on the other hand,
that it is for him or her to decide whether he or she wants the consulate to be
contacted or not. Thus, notification of the consulate without or against the will
of the person concerned is excluded. We will turn later to the consequences of
this provision of the Vienna Convention for the question of whether Art. 36 (1)
(b) embodies an individual right.
4.12 In the present Case, the violation of Art. 36 (1) (b) is as obvious as it
could possibly be:
The LaGrands were arrested on 7 January 1982, on the very day the
robbery at the Valley National Bank in Marana (Arizona) had taken
place, at about 3 p.m local time. In spite of the fact that on the arrest
form of Karl LaGrand the place of birth of the detainee was indicated
as "Ausberg, Germany" (apparently referring to the German city of
Augsburg) nobody considered it necessary to inform the brothers of
their right to contact the German consulate. Neither did the authorities
inform the consulate on their part, although they were - as State
Attorney Peasley had to admit during the clemency hearing concerning
Karl LaGrand on 23 February 1999 - perfectly aware of the German
nationality of the arrested brothers. The ensuing "delay" of ten years
during which Germany did not know of the arrest and of the criminal
proceedings is totally unacceptable - especially in view of the
insufficient remedies provided in United States law for violations of the
Vienna Convention (on which later). On top of this, it was not the
United States but rather the LaGrand brothers themselves who
ultimately established contact with the German consulate in order to
receive consular assistance. The United States has to date not even
apologised for such blatant disregard of its obligations under Art. 36 (1)
(c) of the Vienna Convention.
4.13 Unfortunately, this case appears to be anything but singular. As an
American observer has noted on the practice of the United States in the matter:
"[N]otification is seldom provided at the state or local level."152 In the recent
past, again, several German nationals have been arrested and detained in the
United States without receiving information about their right to consular
assistance "without delay". For the period of 1998 and 1999 alone, at least
eight respective cases of violations of the Vienna Convention on Consular
Relations involving German nationals have been brought to the attention of the
German authorities. 153A number of other cases are presently under
investigation and there might be further instances in which Germany does not
yet know of failures to render the consular advice required by t154Vienna
Convention. As this Court was informed in 155 Breard Case, several other
countries share the German experience. Since that case, at least one foreignnational has been executed in spite of the breach of the notification
requirements of the Vienna Convention and despite vigorous protests of the
home country concerned. 156 In 1997, against the background of this factual
situation in the United States, the Inter-American Court of Human Rights was
requested to render an advisory opinion on the Application of the Death
Penalty in Violation of the Vienna Conventio157n Consular Relations and
International Human Rights Guarantees.
4.14 The wording of Art. 36 (1) (b) is crystal clear. The issue of whether Art.
36 provides not only a right appertaining to Germany but also an individual
right for its nationals will be taken up later. But already at this point it is
important to state that this issue is not decisive for the existence of a breach of
an international obligation committed by the United States as against the
Federal Republic of Germany. Art. 36 (1) (b) is a treaty obligation of the
United States towards Germany, and Germany has the right to see it respected
vis-à-vis its nationals, whether they happen to live in or just visit the United
States.
2. Resulting breaches of Articles 36 (1) (a) and (c) of the Convention
4.15 In addition to the breach of Art. 36 (1) (b) of the Vienna Convention, the
United States has also violated Art. 36 (1) (a) and (c) of the Vienna
Convention, because it failed to enable the LaGrand brothers to have access to
the German consulate. The two respective subparagraphs of Art. 36 (1) read:
"With a view to facilitating the exercise of consular functions
relating to nationals of the sending State:
(a) Consular officers shall be free to communicate with
nationals of the sending State and to have access to them.
Nationals of the sending State shall have the same freedom with
respect to communication with and access to consular officers
of the sending State;
(b) ...;
(c) Consular officers shall have the right to visit a national of
the sending State who is in prison, custody or detention, to
converse and correspond with him and to arrange for his legal
representation. They shall also have the right to visit any
national of the sending State who is in prison, custody or
detention in their district in pursuance of a judgment. ... ."
4.16 If the notification required by Art. 36 (1) (b) does not take place, and the
detainee is not informed of his or her right to consular access, a foreign
consulate might, possibly for a long time, remain unaware of the fact that a
national of the sending State is held in custody in the receiving State.
Consequently, consular access cannot be provided and the exercise of the
rights accorded by Art. 36 (1) (a) and (c) Vienna Convention will be frustrated.
Hence, in our specific Case, by not fulfilling its obligation to inform theGerman consulate according to Art. 36 (1) (b), the United States also violated
the right to consular access provided for in Art. 36 (1) (a) and (c). This
violation continued until Germany became aware of the German nationality of
the LaGrand brothers and was allowed to provide consular services, that is, in
1992.
3. Breach of Article 36 (2) of the Vienna Convention through application
of the municipal law doctrine of procedural default
4.17 Under Art. 36 (2) of the Vienna Convention, the United States is under an
obligation to ensure that its municipal
"laws and regulations ... enable full effect to be given to the
purposes for which the rights accorded under this article are
intended."
The United States is in breach of this obligation by upholding rules of
domestic law which make it impossible to successfully raise a violation
of the right to consular notification in proceedings subsequent to a
conviction of a defendant by a jury, and by applying these rules to the
case of the brothers LaGrand.
a) Interpretation of Article 36 (2) of the Vienna Convention
4.18 In view of the importance of the communication between a consulate and
the nationals of the sending State, the principal purpose of Art. 36 of the
Vienna Convention is to ensure that States Parties are able to render consular
assistance to nationals detained and charged with offences under the
jurisdiction of other States Parties. Thus, the requirement of notification set up
in Art. 36 (1) (b) constitutes the cornerstone of the system of protection of
foreign nationals designed by the 1963 Convention. In order to give "full
effect" to this provision, States Parties must not only inform persons detained
"without delay" of their right to inform their consulate of their arrest and
detention, but also must react to the non-observance of this obligation by their
authorities so as to ensure that "full effect" be given to the observance of the
Vienna Convention. If non-observance of the obligation to notify were not
followed by a reversal of judgments thus infected by a lack of consular advice,
the omission of notification would not only go unheeded, but would -
particularly in an adversarial system of criminal justice, like that of the United
States - even constitute a kind of "advantage" for the law-enforcement
authorities of the receiving State which would then not have to deal with the
foreign consulate and with a detainee well-informed of his or her rights.
4.19 This contextual interpretation is confirmed by the travaux préparatoires
of the Vienna Convention. According to Art. 32 of the Vienna Convention on
the Law of Treaties, 158 which expresses customary international law on the
159
matter, the drafting history constitutes a subsidiary but nonetheless
important means of interpretation. A review of the drafting history of Art. 36
(2) illuminates the breadth of the obligation which that provision imposes on
States Parties. It confirms that the purpose of this provision is to ensure thatmunicipal law meets certain minimum requirements for the effective domestic
implementation of the obligations enshrined in the Convention.
4.20 The paragraph as originally proposed by the International Law
Commission provided as follows:
"The rights referred to in paragraph 1 of this article shall be
exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said
160
laws and regulations must not nullify these rights."
4.21 Obviously, a provision thus phrased would have been much weaker than
the current version. However, in the ensuing discussion, several members of
the Commission expressed the opinion that domestic law must be in
accordance with the individual rights enshrined in the future Convention:
In the opinion of Mr. Georges Scelle,
"Inasmuch as the status of aliens was governed by law, and was
not merely a de facto status, and as, in case of conflict,
international law prevailed over municipal law, any local law
that hampered the consul in his exercise of the essential
function of protecting his fellow citizen's human rights in the
receiving State would be superseded by the rules of
international law as embodied in the Commissions's code.
Indeed, he would go so far as to say that a consul could provoke
an international debate on the validity of the local law which
conflicted with a principle of international customary or treaty
law."161
4.22 It was only at the 1963 Conference that the present version was proposed.
The article now read:
"[T]he said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded under this
article are intended."162
This wording, which then found its way into the final text of the
Convention, changed the ILC proposal in two respects: First, the term
"full effect" is much stronger than the term "not nullify", making it
clear that the treaty provisions giving rise to the rights under
consideration here must not only be somehow kept in existence (not
nullified), but rather be implemented completely and effectively.
Second, the reference to the "purposes" of the Convention means that
the full effect to be given to the Convention not only relates to the
rights accorded but also extends to the actual purpose which these
rights are to serve. In other words, what is required is not merely that
particular provisions of national law must not violate the Convention.
Rather, the municipal law as a whole of the State party must give full effect to the Convention, thus allowing the actual exercise of the rights
provided for in the Convention.
4.23 In the plenary of the 1963 Conference, an attempt by the Union of the
Socialist Soviet Republics to restore the weaker version originally proposed by
the ILC was rejected. 163As the delegate of the United Kingdom said in defence
of the new text:
"[I]t was most important that the substance of the rights and
obligations specified in paragraph 1 should be preserved, which
they would not be if the Soviet Union amendment were
adopted." 164
Hence, what this demonstrates is that the Conference was fully aware
of the impact of the difference between the wording proposed by the
ILC and that ultimately adopted in Vienna. By deciding in favour of the
stronger version, the Conference rejected the attempt to water down the
obligations to be enshrined in the Convention.
Interestingly, in the hearing on Provisional Measures in the Breard
Case in 1998, it was the Soviet proposal defeated at the 1963
Conference, and not the wording of the Convention as finally adopted,
which the United States referred to in arguing that Art. 36 does not
165
require a minimum standard for domestic law.
4.24 To sum up this point, in the words of Shank and Quigley, the drafting
history of the Vienna Convention supports the argument "that Article 36
prevails over domestic procedure". 166Accordingly, if the domestic law of a
State party to the Convention does not provide for the enforcement of the
obligation of notification, it will not meet the requirement to give full effect to
the rights contained in Art. 36 of the Convention.
b) The insufficiency of United States law
4.25 United States law does not provide an effective remedy for the violation
of the requirement of notification and the resulting violation of Art. 36 (1) (a) -
(c) of the Convention in the case that the omission of consular notification is
discovered after a defendant has been convicted in a jury trial. In any case, a
violation of Art. 36 cannot be remedied in the same way as a violation of rights
of the accused stemming from federal constitutional law. It may be true in
principle that, as the Solicitor General emphasised before the U.S. Supreme
Court in the Breard case,
"the procedural requirements for orderly presentation of claims
and objections to a trial court of criminal jurisdiction are surely
valid `laws and regulations' of the United States with which any
claim of a failure of consular notification must comply." 167
However, there exists a particular rule in U.S. law which in the view of
Germany is in conflict with the requirement of Art. 36 (2) of the Vienna Convention according to which national law must give full
effect to the rights accorded in Art. 36 (1) of the Vienna Convention.
(1) The rule of procedural default in U.S. domestic law
4.26 In the present context it is not necessary to give a complete presentation
on the content and function of the rule of procedural default to be applied in
federal habeas corpus proceedings in U.S. law. 168To the extent that this rule
does not affect international legal matters, it is of no concern to the present
proceedings. However, in the LaGrand Case, the rule of procedural default has
been applied in a way which is of utmost relevance here because it deprived
the brothers of the possibility to raise the violations of their right to consular
notification in U.S. criminal proceedings. In order to demonstrate the failure by
the United States to comply with its commitments under the Vienna
Convention, it is necessary to briefly discuss the system of appellate
jurisdiction in the United States in its relationship with the treaty rights
involved.
4.27 In principle, U.S. federal courts possess the so-called habeas jurisdiction
when a prisoner alleges that his or her detention violates treaties concluded by
the United States. 28 U.S.C. § 2254 (a) provides:
"The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States."
In the present as well as in other criminal cases, however, U.S. courts
have denied all appeals based on violations of the Vienna Convention
by either denying actual prejudice - i.e., arguing that the lack of
consular notification had no effect on the criminal proceedings - or by
applying the doctrine of so-called procedural default.
4.28 The rule of procedural default is closely connected with the division of
labour between federal and state jurisdiction in the United States. The United
States is a federal State which knows a relatively strict separation between the
federal government and the state governments, including the respective judicial
branches. Criminal jurisdiction belongs to the States except in cases provided
for in the Constitution.169 As the U.S. Supreme Court has explained in Picard
v. Connor, the doctrine of procedural default consists in the requirement of
exhaustion of remedies at the State level before a habeas corpus motion can be
filed with federal Courts:
"It has been settled since Ex parte Royall, 117 U.S. 241 (1886),
that a state prisoner must normally exhaust available state
judicial remedies before a fed170l court will entertain his
petition for habeas corpus." And further:
"Only if the state courts have had the first opportunity to hear
the claim sought to be vindicated in a federal habeas proceeding
does it make sense to speak of the exhaustion of state remedies.
... We simply hold that the substance of a federal habeas corpus
claim must first be presented to the state courts." 171
4.29 There is only one exception to this exclusion of challenges not raised
before State courts: The showing of both cause for and prejudice resulting
from the default:
"In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice." 172
Cause requires the prisoner to show
"that some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule." 173
For prejudice, the habeas petitioner must show
"not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
174
constitutional dimensions."
4.30 The standard for this exception is very high, however. Its aim is limited to
preventing a "miscarriage of justice". 175 Accordingly, the claimant has not only
to prove that he or she could not have raised the matter before, but also that the
conviction is wrong precisely because of this failure. Neither is incompetence
of the defence lawyer recognised as a ground for admitting a challenge to a
conviction, if the ground was not already raised in State proceedings:
"[T]he existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule. ... [T]he
exhaustion doctrine ... generally requires that a claim of
ineffective assistance be presented to the state courts as an
independent claim before it may be used to establish cause for a
procedural default." 176
In most cases, fault of the attorney alone is not sufficient for
demonstrating cause and prejudice: "So long as a defendant is represented by counsel whose
performance is not constitutionally ineffective ... we discern no
inequity in requiring him to bear 177 risk of attorney error that
results in a procedural default."
However, the standard for "constitutional ineffectiveness", as
established in Strickland v. Washington, is quite high:
"[T]he court should recognize that counsel is strongly presumed
to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
178
judgment."
4.31 Concerning death penalty cases, the harshest criticism of this
jurisprudence comes from within the Supreme Court itself: In the words of the
late Justice Blackmun:
"In a sleight of logic that would be ironic if not for its tragic
consequences, the majority concludes that a state prisoner
pursuing state collateral relief must bear the risk of his
attorney's grave errors - even if the result of those errors is that
the prisoner will be executed without ha179g presented his
federal claims to a federal court ... ."
This reasoning equally applies to claims based on the Vienna
Convention as a treaty consti180ing "the supreme law of the land", a
rank equal to federal laws.
4.32 To the best of Germany's knowledge, no federal court has ever recognised
that the failure of counsel to raise the violation of Art. 36 of the Vienna
Convention in State proceedings would amount to ineffective counselling
pursuant to the Strickland criteria. In any case, the ineffectiveness of counsel
does not dispense with the requirement to show prejudice. A failure to invoke
the lack of consular notification in the original trial will not be sufficient to
claim cause and prejudice due to ineffective counselling. Therefore, the habeas
corpus claim will remain unsuccessful.
4.33 Only in the exceptional case where a violation of a constitutional right has
led to the conviction of an innocent person, the showing of cause for the
181
procedural default can be dispensed with. To meet this standard of
"miscarriage of justice" in death penalty cases, the petitioner must at least
show "innocence of the death sentence", that is, that the death penalty was
wrongly imposed. In this instance,
"to show `actual innocence', one must show by clear and
convincing evidence that, but for a constitutional error, no
reasonable juror would have found the petitioner eligible for the
death penalty under the applicable state law." 182 However, that showing may not include additional mitigating evidence
183
not considered during the trial phase. In principle, claims not based
on established federal constitutional law cannot be relied on in habeas
proceedings. Exceptions in the case of the enunciation of new
"watershed legal rules" are recognised only rarely. 184A violation of a
treaty will usually not be equated with the violation of constitutional
185
rights. Thus, to the best of Germany's knowledge, none of the Courts
involved did even raise the possibility of applying the "actual
innocence" jurisprudence to violations of the Vienna Convention,
neither in the case of the LaGrands nor in other cases concerning the
186
Vienna Convention.
4.34 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") 187
has made it even more difficult to challenge a state conviction. A habeas
petitioner alleging to be held in violation of t188ty law will not even be granted
an evidentiary hearing to establish prejudice. Thus, in the Breard case, the
Supreme Court only referred to the first phrase of Art. 36 (2) of the Vienna
Convention - apparently disregarding the second phrase - and applied the
domestic rules of procedural default and the AEDPA to justify its refusal to
deal substant189ly with Breard's claim of a violation of Art. 36 of the Vienna
Convention.
4.35 In addition, in order to obtain a certificate of appealability against a
(federal) District Court judgment,190 substantial showing of the denial of a
constitutional right" is required. Since U.S. courts have ruled that violations
of treaty rights cannot be equated to violations of constitutional rights, the
rejection of claims arising out of a violation of the requirement of notification
contained in Art. 36 of the Vienna Convention in a Federal District Court is not
appealable to higher federal courts.
"[R]ights under a treaty and rights under a federal statute are not
the equivalent of constitutional rights. ... Even if the Vienna
Convention on Consular Relations could be said to create
individual rights ..., it certainly does not create constitutional
rights."191
Therefore, even when a claim of violation of the Vienna Convention is
validly raised in state proceedings, it cannot reach the federal Court of
Appeal, but will be decided in the lowest federal Court, the District
Court. By this token, a violation of Art. 36 (2) of the Vienna
Convention is reviewed less thoroughly than a violation of a provision
of the domestic constitution.
(2) The application of the doctrine of procedural default in the case of the
LaGrand brothers and similar cases regarding Article 36 (2) of the Vienna
Convention
4.36 The jurisprudence just described made it impossible for the LaGrand
brothers to effectively raise the issue of the lack of consular notification after
they had at last learned of their rights and established contact with the Germanconsulate in Los Angeles in 1992. On 16 January 1998, the United States
Court of Appeals of the 9th Circuit decided that the claim of violation of the
Vienna Convention was procedurally defaulted, even though the violation
itself was not in dispute:
"It is undisputed that the State of Arizona did not notify the
LaGrands of their rights under the Treaty. It is also undisputed
that this claim was not raised in192y state proceeding. The claim
is thus procedurally defaulted."
4.37 The Circuit Court expressly rejected the argument that the LaGrands had
been blocked from obtaining evidence on their abusive childhood193 Germany,
by pointing to the jurisprudence of the U.S. Supreme Court according to
which this claim to
"actual innocence of the death penalty must focus on eligibility
194
for the death penalty, and not on additional mitigation".
Since this was not the case, the brothers' claim of violation of Art. 36 of
the Vienna Convention on Consular Relations was procedurally
defaulted, and their claim was dismissed. The substantive argument to
the effect that additional mitigation might have prevented the
pronouncement of the death penalty was not discussed. The United
States Supreme Court denied certiorari, that is, it denied to hear the
case.195
4.38 Shortly before his execution, on 24 February 1999 (amended 26 February
1999), the 9th Circuit Court rejected a second habeas corpus claim of Karl
LaGrand which was based, among other arguments, on the lack of consular
notification.196The Court held the latter claim to be procedurally defaulted.
The other decisions in the case were based on different grounds not related to
rights under the Vienna Convention.
4.39 The application of the procedural default rule in the LaGrand case in no
way constitutes an exception but rather confirms the rule of the non-
enforcement of the Vienna Convention by U.S. courts. Thus, in the case of
Faulder v. Johnson, the 5th Circuit Court denied that the violation of the
requirement of notification contained in the Vienna Convention led to actual
prejudice:
"While we in no way approve of Texas' failure to advise
Faulder, the evidence that would have been obtained by the
Canadian authorities is merely the same as or cumulative of
evidence defense counsel had or could have obtained." 197
4.40 In our specific context, the decision of the 4th Circuit Court of Appeals in
the case Murphy v. Netherland is especially revealing: On the one hand, the
judgment asserts that a violation of the Vienna Convention does not amount to
"a substantial showing of the denial of a constitutional right" which the 198
AEDPA requires in order to allow appeals against district court judgments.On the other hand, the 4th Circuit Court of Appeals held that the claim of
violation of the Vienna Convention was defaulted because Murphy had not
raised the issue in the state court and could not show cause for his default.
"The legal basis for the Vienna Convention claim could, as
noted above, have been discovered upon a reasonably diligent
investigation by his [the defendant's] attorney." 199
4.41 Thus, the discovery of the omission of consular notification constitutes an
important test for the quality of an attorney. At the same time, such lack of
notification is precisely one of the reasons why a foreign accused will not
receive an adequate defence. Without an adequate defence, however, the
accused will not be able to raise the omission of notification.
4.42 In the case of the LaGrand brothers, none of their several counsel engaged
in the various proceedings raised the lack of consular notification before 1992.
This circumstance alone provides evidence for the insufficient quality of their
defence. In the following, the mitigating circumstances relating to the
childhood of the LaGrand brothers in Germany could not be raised in the jury
phase or later until, at last, the brothers themselves became aware of their
rights and received consular assistance. At that stage, however, their claims
were procedurally defaulted. 200If they had had better defence counsel from the
outset and thus been able to raise the issue of their German nationality at an
earlier stage, the invocation of mitigating circumstances based on their d201icult
childhood in Germany could have saved them from the death penalty.
Mutatis mutandis, the situation is similar to that described by the California
Supreme Court relating to the right to counsel: "The defendant who does not
ask for counsel is the very defendant who most needs counsel." 202 A remark
made by Shank and Quigley about the case of Angelo Breard is equally
pertinent in the case of the LaGrand brothers: Just as Breard, the LaGrand
brothers were
"not aware of [their] right to be notified of the right of consular
access during [their] trial and appeal but became aware of it
only when attorneys representing [them] at the habeas corpus
stage discovered [Arizona]'s error and explained article 36 to
[them]. [They] thus [were] unaware that [their] right was
violated until the time had passed by which, according to the
Supreme Court, [the LaGrands were] required to make [their]
claim. And [their] lack of awareness was not through any fault
of [their] own, but precisely because [Arizona] authorities had
failed to inform [them]." 203
4.43 Hence, through the application of the rules of procedural default and the
requirement to show actual prejudice, an effective raising of the claim of lack
of notification is made impossible. No effective remedy for violations of the
right to consular notification exists.
4.44 As far as the showing of prejudice is concerned, the very fact that the
right to consular access was not invoked during the jury trial demonstrates thelack of adequate defence due to the omission of the necessary notification.
Therefore, U.S. law does not effectively protect the rights to consular access
enjoyed by a detained person. As Judge Butzner put it in his concurring
opinion in Breard v. Pruett: "Collateral revi204[e.g. Habeas corpus review] is
too limited to afford an adequate remedy."
4.45 Academic scholars have expressed similar views regarding the effect of
violations of the Vienna Convention in U.S. law in administrative cases:
"[F]ederal courts have determined that a violation of INS
[Immigration and Naturalization Service] Regulations with
respect to consular access [that is, administrative regulations
implementing the undertakings of the US under Art. 36] will
invalidate challenged proceedings only if the defendant can
show prejudice. The courts have made this determination
despite the fact that no such requirement is set forth in the
Vienna Convention." 205
As Shank and Quigley put it:
"That standard [demanding the showing of prejudice] would
seem too strict to comply with Article 36, which specifies that
the right of consular access is an absolute right. Nothing in the
text of Article 36 suggests that relief for a foreign detainee
should depend on whether he can show prejudice. Moreover,
requiring a showing of prejudice would often defeat the
right."206
And elsewhere:
"A domestic court may not, consistent with the obligations
assumed by a State under the Vienna Convention, erect a
requirement that some specific detriment be found." 207
4.46 In conclusion, Germany entirely shares the following assessment of U.S.
practice by Keith Highet:
"The purposes of consular access rights are quite obviously to
protect the criminal defendant nationals. To cut off the right of
appeal on the basis of failure to raise the question of lack of
consular access under the Convention in state court, when
notification of such consular access was the duty of the
arresting (receiving) State and was not in fact performed, is as
absurd as Catch-22 but not in the least amusing. It is in fact the
precise opposite of the performance of the duty to `enable full
effect to be given to the purposes for which the rights accorded
under this article are intended.'"208
(3) Impossibility of suits by foreign governments4.47 Foreign governments do not possess a right of action to enforce their
rights resulting from Art. 36 of the Vienna Convention on Consular Relations
before U.S. courts. U.S. courts, invoking a lack of standing or applying the
Eleventh Amendment of the Constitution, which bars
"any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State",
have consistently denied foreign States and/or their diplomatic or
consular representatives a remedy against violations of the Vienna
Convention. 209
(4) Conclusion
4.48 As a result, the domestic law of the U.S. does not
"enable full effect to be given to the purposes for which the
rights accorded under this article [Art. 36 VC] are intended." 210
In fact, in the context of criminal proceedings, U.S. law grants the
Vienna Convention no effect at all after the sentencing phase of the
original trial, even if the matter was not raised before state courts due to
the lack of knowledge of the foreign nationality of the defendant or of
the existence of the right to consular notification. As the present Case
demonstrates, the doctrine of procedural default was applied in a
persistent and rigorous manner throughout each trial. The judicial
authorities in question were fully aware that the brothers LaGrand did
not know about their rights at the earlier proceedings precisely because
U.S. authorities had failed to comply with their obligations under the
Vienna Convention to inform them of these rights "without delay".
4.49 Let us not be misunderstood: What is at issue here is not this or that
provision of the domestic law of the United States or certain decisions of U.S.
domestic courts. As Keith Highet puts it:
"What is not at stake is the actual correctness of the
determinations made by the U.S. courts - and in particular the
Supreme Court. What is at issue is the reaction of the other
organs of the State concerned - the executive power of the
United States - to those inadequate decisions. Moreover, what is
not at issue is whether the Supreme Court correctly interpreted
U.S. domestic federal appeals practice; it may well have done,
but that practice must also be measured against the less
subjective lens of international scrutiny, and for reasons of
internal illogic alone should be found wanting." 211
It is the view of Germany that United States domestic law fails this test.
Since the rationale of Art. 36 is that notification will enable the
consulate to provide a foreigner arrested or detained with adequate remedies to put him or her on an equal footing with defendants
possessing the nationality of the receiving State, the United States has
violated Art. 36 (2) of the Vienna Convention by preventing the
effective exercise of the right to consular assistance after the jury trial
and the sentencing phase have been concluded.
c) The existence of "prejudice"
4.50 Even if one followed the view that the requirement of "prejudice" under
domestic law - that is, an influence of the lack of consular notification on the
result of the case - is in line with Art. 36 (2) of the Vienna Convention, U.S.
law nevertheless fails to meet the standard of Art. 36 (2): Even if "prejudice" is
shown, U.S. law does not allow for the raising of the treaty violation in federal
courts if the violation was not raised before in state courts. Therefore, if a
foreign national did not know of his or her right until after the end of the state
proceedings, he or she cannot raise the matter later after he or she has
discovered the fault of the authorities. This is particularly unacceptable in
death penalty cases where execution of the final judgment is irreversible.
4.51 In any event, notwithstanding its view that "prejudice" must not be
required by domestic law pursuant to Art. 36 (2) of the Vienna Convention,
Germany will show in the following that "prejudice" indeed occurred - in the
case of the LaGrand brothers, in particular, Germany will demonstrate that the
lack of consular advice was decisive for the infliction and execution of the
death penalty. If the LaGrands had been properly informed of their rights, they
would have been advised and supported by the German consulate as required
by the Vienna Convention. Under these circumstances, the brothers would not
have been executed.
Walter and Karl LaGrand would have needed the
assistance of German consular officers to help
them in obtaining adequate legal representation
and to help their lawyers in putting on the best
possible defence from the time they were
arrested for capital murder. Instead, the
LaGrands were represented by court-appointed
lawyers who made several grave errors
exacerbated by the absence of German consular
assistance, including in particular, the inadequate
case for mitigation presented at sentencing.
(1) The burden of proof
4.52 The burden of proof for the impact of the violation of the Vienna
Convention on the trial of the LaGrand brothers is to be borne by the United
States. The United States executed the LaGrands before they had the chance to
testify on the decisive effect on their trial of the omission of notification.
Germany was thus deprived of vital testimonial evidence. In the case of Walter
LaGrand, the execution was in flagrant violation of a binding Order of
Provisional Measures from this Court. 212 For this disregard of the Order of the Court, the United States alone is
responsible. It is therefore the United States which has to bear all the
consequences of such a violation of international law. In the words of
Judge Shahabuddeen, citing E. Dumbauld,
"[w]hen a refusal to furnish information or to carry out
provisional measures is put on record, apparently a presumption
arises which takes the place of direct evidence in the sense that
it legitimates a conclusion derived from the fact in question by
213
reasonable inference."
Therefore, Germany requests that, to the extent
there are any disputed issues of material fact
relating to Germany's claims as to which the
LaGrands' testimony would have been relevant,
the Court draw all necessary inferences in favour
of Germany and consider such facts as proven.
(2) If properly informed of their rights, the LaGrands would have sought and
received consular assistance
4.53 It is clear that had the LaGrands been properly accorded their rights and
thus had been able to contact the German Consulate, German consular officials
would have immediately provided protection, support and assistance to their
nationals, helping in the preparation of their defence, retention of competent
counsel, and collection of import214 mitigating evidence from family, friends
and State agencies in Germany. Germany would have reacted in 1982 with
the same high level of commitment, diligence and care that it brought to bear
in 1992, upon finally learning, from Karl LaGrand's new counsel, that the
LaGrands were on Arizona's death row. 215
4.54 It is also clear that Germany would have provided precisely the consular
assistance the LaGrands needed most. Helping detained nationals to find legal
counsel and to collect mitigating and other evidence from the sending state - a
task for which consular assistance is truly invaluable - are fundamental
consular activities.216Under the German Federal Law on Consular Assistance
("Konsulargesetz"), every German citizen being detained for criminal
investigation or held prisoner needing legal and consular help in a foreign
country is entitled to immediate consular and legal assistance provided for by
the respective diplomatic or consular representation of Germany. In an
unofficial translation, Articles 1 and 7 of the Law read:
"Article 1. Consular officers (career consular officers or
honorary consular officers) shall be required ... to give Germans
and domestic juridical persons advice and assistance at their
limited discretion [nach pflichtgemäßem Ermessen]." ...
Article 7. Consular officers shall care for Germans remanded in
custody pending trial or serving a prison sentence within their consular district and especially provide them with legal
protection if so required by such persons." 217
Paragraph 5 of the Law also provides for financial assistance if
necessary.
In addition, a Cir218ar Order ("Runderlaß") issued by the German
Foreign Ministry requests all German consular officers and other
representatives to provide quick, appropriate and comprehensive
support for arrested Germans. If a German consulate learns of the arrest
of Germans, it is even required to contact them without a request on
219
their part. The German consular officers are also required to ask,
inter alia, whether the arrested or detained persons wish to be provided
with an attorney, and to provide them with information on their rights
in the host country. 220In case a detained person wishes to receive the
assistance of an attorney, the consular officers are required to arrange
for competent and reliable counsel. Other221e, they must take care that
such counsel is appointed by the court.
4.55 To turn to our specific Case, upon finally learning of the LaGrands'
situation in 1992, Germany came to their assistance in an effective manner, as
it has done in the cases of three other Germans on death row in Arizona and
Florida, respectively. Germany helped Walter LaGrand collect important
mitigating evidence in Germany in 1993. 222Unfortunately, as described earlier,
U.S. procedural rules barred consideration of this new evidence. In comparable
cases, too, Germany has supported the defence, for instance by paying for a
psychiatric expert opinion and an investigation into unknown facts from the
childhood of the accused (as in the case of Michael Apelt currently on death
row in Arizona) or by financially supporting attorneys' additional fact-finding
efforts not covered by State aid (as in the case of Dieter Riechmann currently
under arrest in Florida). Further, German consular officers regularly help
Germans to get in contact with capable attorneys or lawyers of their own
choice.
4.56 Had Germany been properly afforded its rights under the Vienna
Convention, it would have been able to intervene at a time when vigorous
assistance would have made a difference. Indeed, Germany's assistance in
obtaining competent, experienced trial counsel and presenting a complete,
persuasive mitigation case likely would have saved their lives, as these are two
fundamental elements in a successful capital defence, one that avoids the death
penalty. As four States argued as amici curiae to the Supreme Court of the
United States in the Breard Case:
"The United States is the only Western industrialized nation that
still imposes the death penalty. Because of the severity of the
potential punishment, a consul has a special interest in assisting
a national who faces a capital charge." 223
(3) The United States' violation of the Vienna Convention prevented
essential mitigating evidence from being presented during sentencing4.57 Germany's inability to render prompt consular assistance - a direct result
of the United States' breach of its Vienna Convention obligations - proved fatal
to the LaGrands because it impeded introduction of compelling evidence for
mitigation during the sentencing phase of the LaGrands' trial. Germany's co-
operation and assistance were necessary for this purpose as much of the
available mitigating evidence was located in Germany, including both
witnesses and documentary evidence about the profoundly miserable early
childhood of the LaGrand children and the prejudice they and their mother
probably faced because of Walter and Karl's biracial heritage. Had the United
States properly notified the LaGrands of their Vienna Convention rights,
Germany would have assisted their counsel in collecting this evidence before
the trial, which was essential to the "preparation and presentation of the all-
important sentencing-phase defense." 224
(i) The role of mitigating evidence in U.S. death penalty litigation
4.58 In the United States, capital trials proceed in two stages. First, a trial on
the merits is held to determine the defendant's guilt or innocence. If the
defendant is found guilty, a sentencing hearing is held to decide the sentence to
225
be applied. Two constitutional principles inform the sentencing phase. First,
under the Eighth Amendment, only individuals of sixteen years of age or older,
sane, and guilty of aggravated murder as defined by statute in each state, can
be executed. 226
Second, during the sentencing phase, defendants can present any
evidence which may convince the judge to impose a sentence lighter
than death. 227The state must prove aggravating evidence beyond a
reasonable doubt, whereas mitigating factors228st only be proved
beyond a preponderance of the evidence. States cannot limit the
consideration of the mitigating evidence, either judicially or by statute,
in such a way as to exclude it from the sentencing process. 229 The judge
must balance the evidence submitted, weighing the strength and quality
of the aggravating factors against the mitigating ones, in order to ensure
that the personal circumstances of each defendant are considered in
determining the penalty. 230
4.59 Consideration of mitig231ng evidence is a "constitutionally indispensable
part" of capital litigation. Individualised sentencing and background
circumstances are critical in determining whether personal culpability should
be mitigated in capital cases. The Eighth Amendment to the U.S. Constitution
allows neither mandatory capital sen232cing schemes nor completely
discretionary sentencing schemes. In order to avoid arbitrary or capricious
imposition of the death sentence therefore, courts are required to evaluate any
"compassionate or mitigating factors" which might reduce the individual's
personal culpability. 233
4.60 Given the gravity and irrevocability of the death penalty, the defence
counsel is under a higher duty than in routine criminal trials to undertake
extensive investigations into the defendant's background in order to identify
234
and introduce all possible information which may mitigate the sentence. Anyaspect of a defendant's character or history or any circumstances that might
235
entail a sentence less than death must be considered. These requirements
ensure that sentencing authorities have adequate information before they
impose the death penalty, while preserving the basic humanity and dignity of
the defendant. 236
Counsel must, therefore, prepare and introduce at sentencing a
complete social history presenting the defendant's childhood and family
life, from information collected from family, friends, medical and
237
school records, and other available sources. The failure to present
information about a traumatic childhood, mental history, school
performance and other evaluations can result in irreparable prejudice to
the defendant, as it did to the LaGrands. 238Defence counsel's efforts to
provide239is information can mean the difference between life and
death.
(ii) The absence of critical mitigating evidence in the LaGrands' cases
4.61 Without the assistance of the German Consulate, the LaGrands' attorneys
were unable to present their complete social and medical histories at
sentencing. Although both lawyers presented an outline of the troubled
childhood of Karl and Walter LaGrand, because Germany was not involved,
none of the available documentary and possible testimonial evidence of their
childhood circumstances was presented.
At sentencing, each lawyer had one expert witness testify about his
client's mental state and history; however, the doctors had met only
briefly with each defendant and based their entire opinions on
information provided by the defendants themselves in the absence of
the records in Germany corroborati240and detailing the LaGrands' early
childhood of abuse and neglect. Thus, these expert opinions were
incomplete, inadequate and not sufficiently compelling. 241
"An accurate social history [as presented to both the court and
the experts] must be supported by independently gathered
evidence from as many divergent sources as possible." 242
4.62 Materials available at that time from state agencies in Germany indicate
that the LaGrands suffered from serious physical and emotional neglect,
malnutrition, illnesses and hospitalisations from infancy. 243Criminal charges
were brought against Walter and Karl's aunt for some of these incidents. 244
Walter was abandoned by his mother into his grandmother's care at birth. His
grandmother was already caring for Walter's sister and his two cousins at this
time, and was incapable of caring adequately for the four young children. 245
Consequently, Walter was frequently shuttled between his grandmother and
state child care institutions at an early age, ultima246y spending over 2½ years
in state children's homes before his fifth birthday. Because of such a history
with his mother and siblings, Karl LaGrand was immediately placed into a
children's home at birth, separated from his siblings for the first three years ofhis life.47None of this information was discovered by the LaGrands' counsel
or presented to the sentencing judge.
4.63 Germany's assistance was crucial in obtaining the records detailing this
difficult childhood. When the Consulate was finally contacted, the German
Government provided the funds to hire an attorney in Germany to investigate
Walter LaGrand's background. This investigation resulted in the production to
Walter LaGrand's counsel of many records detailing the trauma, negl248 and
abuse Walter and his siblings suffered during their early years.
4.64 The documents located with the assistance of the German Government in
1993, while critical to establishing mitigating factors at sentencing, only
scratch the surface of the evidence Germany could have assisted in uncovering
for the LaGrands before trial. Witness testimony from family, friends, social
workers and caretakers could have been sought, and possibly located, to
supplement the documents detailing Walter and Karl's early years of
abandonment, malnutrition, hospitalisation and foster care. It is undeniable that
an effort to locate the potential witnesses would have been more promising in
1983, when the LaGrands were on trial for their lives. Had proper notification
been given under the Vienna Convention, competent trial counsel certainly
would have looked to Germany for assistance in developing this line of
mitigating evidence.
4.65 There are compelling reasons to believe that the LaGrands' sentences
would have been reduced had the evidence about their traumatic childhood,
hospitalisations and racial isolation in Germany been presented. Evidence of
dysfunctional family backgrounds and childhood neglect can be critical in the
individualised sentencing process. 249 Arizona courts have held that a difficult
family background that affects or impacts on a defendant, rendering his
behaviour beyond his control, is a relevant mitigating circumstance. 250 In State
v. Trostle, for example, the Supreme Court of Arizona reduced a death
sentence to life imprisonment after evaluating evidence of early childhood
abuse and neglect. 251The court found that the long term damage of childhood
abuse and the absence of a stabilising family were relevant mitigating factors
because they impaired the defendant's ability to conform his conduct to the
law. Indeed, any evidence of mental impairme252or behaviour disorders may be
relevant in mitigating capital punishment.
4.66 Had the information from Germany been available during the LaGrands'
trial, it would have been provided to the expert witnesses for evaluation of the
probable consequences of such profound physical and emotional childhood
suffering and its detrimental effect on the LaGrands behaviour as young
adults.253This psychological evidence would have been important, inter alia,
in supporting the argument made in post-conviction proceedings that Karl
LaGrand had impulsive personality disorder, an imp254ant mitigating argument
to prove that the murder was not premeditated. The evidence regarding
physical and emotional trauma as infants would also have led to additional
medical and psychological opinions not offered at sentencing because the
experts were unaware of the background. Of course, this evidence would also
have been submitted directly to the court to corroborate the opinions of theexperts and the descriptions the defendants and their sister offered of their
childhood. 255
4.67 Finally, because of the nature of the crime for which the LaGrands were
convicted - essentially a bungled bank robbery - theirs was a case where a
proper case for mitigation is likely to influence the judge and result in a
sentence less than death. Whereas a serial killer or a criminal convicted of an
especially heinous murder is not likely to receive leniency as a result of
mitigating evidence regarding the effects of a traumatic childhood, the
LaGrands' crime was of a different magnitude. Indeed, the police officer who
had taken the confession of Karl LaGrand told the Federal Public Defender's
office that the LaGrand case had
"always disturbed him because, in all of his years of experience
as a law enforcement officer, and in his experience investigating
many violent crimes, he has never cons1dered this particular
crime to warrant the death penalty."
In sum, the United States' violation of the Vienna Convention
prevented the LaGrands' attorneys from accessing information that
could have proved decisive in preventing their death sentences.
(4) The United States' violation of the Vienna Convention prevented
Germany from obtaining effective trial counsel for its nationals.
4.68 The failure of the LaGrands' trial attorneys to present mitigating evidence
from Germany at sentencing reveals another prejudice resulting from the
United States' violation of the Vienna Convention: inadequate counsel. Had
Germany been afforded its rights under the Vienna Convention, it would have
assisted its nationals in obtaining effective, experienced counsel, either by
providing funds or by persuading better counsel to take on these cases pro
bono. Instead, the LaGrands were subjected to the inadequate legal
representation of court-appointed lawyers neither of whom had ever
represented a client accused of capital murder.
(i) The importance of competent, experienced counsel in U.S. death
penalty litigation
4.69 Capital litigation in the United States is highly specialised and highly
complex. Only competent counsel can navigate it successfully and avoid the
death penalty for their clients.2
"Every step - whether it be one of the countless pressure points
before and during trial, such as plea bargaining, pretrial
investigation, motion practice, jury selection, development and
presentation of a guilt-phase defense, preparation and
presentation of the all-important sentencing-phase defense, jury
instructions, final argument, or any one of the umpteen
instances when preservation of one of the defendant's various
legal rights requires action; or whether it be one of the critical moments on appeal, when issues are identified, conceptualized,
and melded into a coherent whole - presents opportunities for
success (and conversely, for failure) that depend directly on th3
relative strength or weakness of the lawyer's performance."
Capital defence, therefore, requires an experienced advocate - one
aware of the many Constitutional issues, able to activate safeguards,
challenge inappropriate decision-making by judges, opposing counsel
and legislators, and preserve all rights and claims for the lengthy
appeals process that follows every death sentence. 4
4.70 In the United States, indigent defendants, like the LaGrands, are most
likely to have ineffective lawyers and thus are disproportionately likely to
receive death sentences. Indeed, poverty and inadequate counsel are, however
unjustly, the two "key variables" determining whether capital punishment is
sought, imposed and carried out. 6 Instead of receiving the protection and
assistance of their country to obtain competent counsel, the defence of the
LaGrands was in the hands of changing court-appointed attorneys in the
Arizona criminal justice system, whose performance left much to be desired. 7
The disparity in the quality of such random representation has been the subject
of heavy critique and loud calls for reform from scholars, practitioners and
8
jurists alike.
4.71 The need for effective counsel at the trial phase cannot be
overemphasised. As Supreme Court Justice Blackmun explained in dissent
from McFarland v. Scott:
"[The American] system of justice is adversarial and depends
for its legitimacy on the fair and adequate representation of all
parties at all levels of the judicial process. The trial is the main
event in this system, where the prosecution and the defense do
battle to reach a presumptively reliable result. When we execute
a capital defendant in this country, we rely on the belief that the
individual was guilty, and was convicted and sentenced after a
9
fair trial, to justify the imposition of state-sponsored killing."
4.72 For foreign nationals facing the death penalty, the Vienna Convention
right to consular notification and assistance "without delay" is fundamental,
because if the consulate cannot assist with obtaining adequate counsel at the
"main event", its assistance is often moot. The LaGrand Case amply
demonstrates the potentially lethal consequences of poor trial representation
for capital defendants.
"Evidence not presented at trial cannot later be discovered and
introduced; arguments and objections not advanced are forever
waived. Nor is a capital defendant likely to be able to
demonstrate that his legal counsel was ineffective, given the
low standard for acceptable attorney conduct and the high
showing of prejudice required" by constitutional law. In other words, Germany's intervention at any
stage later than the trial phase would be unlikely to remedy the extreme
prejudice created by the counsel appointed to represent the LaGrands,
for two reasons. First,
"[e]ven the best lawyers cannot rectify a meritorious
constitutional claim that has been proce11rally defaulted or
waived by prior inadequate counsel."
Second, the only remedies for constitutionally ineffective counsel in
U.S. law are at the post-conviction stage, where the standard for
constitutionally competent trial counsel is so absurdly low, that even
had the LaGrands' lawyers been drunk, unconscious or physically
absent from their trials (let alone ignorant of the law), they would not
have 12ceived relief and an opportunity for a new, properly conducted
trial. These two constitutional legal doctrines, of restricted
postconviction relief on the one hand, and of extreme standards for
ineffective assistance on the other, form the "pernicious vicegrip"
described by Supreme Court Justice Thurgood Marshall which traps
capital defendan13 subjected to profoundly inadequate legal
representation.
(ii) The LaGrands' ineffective trial counsel
4.73 The record is replete with evidence of the ineffective advocacy of the
LaGrands' attorneys. Their failure to seek or present mitigating evidence from
Germany was discussed above. In addition, there was ample, additional
mitigating evidence available here in the United States, which they also never
endeavoured to find or present. In particular, the lawyers never attempted to
contact Walter or Karl's mother, father, step-father. Nor did they do any
investigation into Walter and Karl's many stays at foster homes and state
children's agencies in the United States, although considerable, important
documentary and testimonial evidence was readily available.
4.74 In 1999, the Federal Public Defender located both Walter's biological
father, Tirso Molina Lopez, and his step-father, Masie LaGrand, and obtained
14
affidavits from them. Their testimony contained important information about
Walter and Karl's mother, Emma Gebel, and her attitude toward her children.
Mr. Molina described how Emma often seemed depressed, and drank during
her pregnancy. 15
Mr. LaGrand provided extensive information about Emma and the
boys. For instance, though Emma did tell Mr. LaGrand about Karl, she
never told him until after their marriage that she had two older children
as well.16 Mr. LaGrand also said that when Karl was very young
"he appeared shaky, abnormal and seemed to suffer from some
sort of involuntary shaking of his head." 17 Mr. LaGrand also stated that when the family returned from Germany,
Mr. LaGrand sent Karl to live with his mother (Karl's step-
grandmother) in Alabama for a year. Mr. LaGrand stated that he
wanted Karl under his mother's care because he was very young, too
young for school, and that he "noticed a positive change in Karl, an
improved and better attitude" during the time he spent with his step-
18
grandmother. Finally, Mr. LaGrand described in detail the continuing
emotional and physical neglect to which Emma Gebel subjected her
two sons. She was "often verbally abusive" to the boys and "seemed
completely unconcerned about the welfare of her two sons." By 19
contrast, she took 20latively good care of and clearly favoured her
daughter, Patricia. Mr. LaGrand stated that he
"always believed that the constant verbal abuse from Patricia,
Emma, and the glaring absence of love and co21ern from their
mother was terribly harmful to the boys."
Similarly, upon being contacted by the Federal Public Defender's
Office in March 1999, Walter's foster mother provided a declaration
describing how Walter had been deprived of the love of a mother and
father and how he had behaved like a normal teenager while living with
her family. Several social workers who had worked with Walter also
offered to write declarations. They all stated that they would have done
so in 1984, as well. Indeed, one of the s23ial workers "appeared upset
that he had not been contacted sooner." Other available evidence,
including records from the children's homes was collected in just
several days by the Federal Public Defender and presented in Walter's
24
third petition for state post-conviction relief.
4.75 In 1993, Karl's habeas counsel tracked down considerable evidence from
similar sources, including many psychological evaluations from the Youth
Opportunity Unlimited and VisionQuest boys homes where Karl spent several
years. This information, detailing the extent to which Karl's mental and
emotional state had been disturbed and affected by his abusive, disruptive and
unloving family, was submitted it with Karl's first habeas petition. 25 Habeas
counsel also interviewed Karl's foster parents and his mother, who provided
information about the physical abuse Karl and Walter's step father had inflicted
on them.
Significantly, Karl's habeas lawyer also provided this newly-obtained
informati26 to the expert who had testified for Karl at his sentencing
hearing. With the benefit of this newly-provided information, which
would have been readily available prior to Karl's trial and sentencing,
the expert came up with a dramatically different diagnosis, one that
provided further mitigating evidence. 27
4.76 The LaGrands' trial counsel never even looked for any of this critical,
easily locatable evidence, which together with the information collected from
Germany clearly showed not only the LaGrands' intolerable home life but,
importantly also indicated that when the boys were away from their motherand their miserable home life, they did better, did not act out and were well
liked. Of course, none of this evidence was presented to either expert
testifying about Walter and Karl's mental and emotional profile, thereby
seriously impeding, if not preventing entirely, these experts from providing
any useful testimony at sentencing. Because background evidence of a
traumatic childhood is considered mitigating to the extent it affects the
defendant's behaviour as an adult, investigation into these areas and proper
preparation of the expert witnesses was essential to establishing a credible,
compelling case at sentencing.
4.77 Trial counsel's legal representation was fatally inadequate in other ways
as well: Walter's lawyer failed to investigate adequately his innocence claims,
for instance, by failing to discredit the only witness contradicting Walter and
Karl's consistent accounts that Karl acted alone in committing the murder, and
neglecting to hire an independent crime scene investigator to review the
physical evidence. He also failed to investigate Karl's mental health
background which would have supported a claim that Karl acted alone and
impulsively, thereby rendering Walter completely ineligible for the death
29
penalty. Then upon appeal and post-conviction, Walter's lawyer failed to
have his client consult with an independent counsel to investigate an
ineffective assistance claim. 30
Karl's counsel was equally inadequate. The Arizona Supreme Court,
while not finding his performance to be constitutionally ineffective,
agreed that he was not a zealous advocate for his client, saying that he
had kept an "exceedingly low profile." Karl's lawyer failed to
interview any witnesses; he did not hire an independent investigator; he
only asked questions of 2 out of 18 witnesses who testified at trial.
And, as discussed above, he put on virtually no case for mitigation at
sentencing, having failed completely to investigate Karl's background
and properly prepare his expert witness. 32Indeed, Karl's trial lawyer
subsequently acknowledged his inadequacies and stated that he should
have done many things differently. 33
4.78 All of these instances of incompetent lawyering resulted in death
sentences for Karl and Walter LaGrand that could have been avoided if the
United States had merely abided by its obligations under the Vienna
Convention. For had Germany been promptly notified of the LaGrands'
situation, it would have arranged for competent counsel to represent the
brothers. Competent counsel would have investigated the cases thoroughly at
the trial stage, as subsequent counsel finally did. And, it would have made all
the difference.
Germany wants to emphasise that it has not presented all this evidence
in order to bring the United States justice system to trial in this forum.
Rather, since the United States itself claims that "prejudice" needs to be
shown, Germany wants to establish that "prejudice" indeed occurred as
a consequence of the omission of consular advice to the LaGrand
brothers.4.79 United States domestic law, as applied to the case of the LaGrand
brothers, has not met the requirements of Art. 36 (2) of the Vienna Convention:
Although the brothers were undeniably prejudiced by the lack of consular
assistance - and, ultimately, their death sentence was due to the breaches of
Art. 36 (1) of the Convention by authority of the Respondent -, U.S. domestic
law did not provide any remedy for these violations of the Convention. Thus,
U.S. domestic law did not, to repeat once again the respective wording of Art.
36 (2),
"enable full effect to be given to the purposes for which the
rights accorded under this article are intended."
d) The particular responsibility of the sentencing State in death penalty
cases
4.80 Given the gravity and irrevocability of the death penalty, the sentencing
State is under a particular, higher duty to most carefully weigh and examine
the negative impact and consequences of a violation of the rights granted by
the Vienna Convention on Consular Relations to foreign nationals. This higher
standard of responsibility must apply to the full and proper examination of all
relevant aspects of the proceedings affected by the violation in question with
regard to, in particular, the decisive phase of sentencing. Again, taking into
account the gravity and irrevocability of the death penalty, the necessary
careful scrutiny must address in particular the questions of:
- if and to what extent the violation of the Vienna Convention
prevented the defendant from seeking and obtaining consular
assistance,
- if and to what extent the violation prevented assistance by competent
and effective counsel, experienced in death penalty litigation, and
- if and to what extent the violation prevented essential mitigating
evidence from being presented during sentencing.
4.81 Germany submits that in our concrete case U.S. authorities, instead of
recognising and living up to this particular responsibility connected with the
death penalty, unfortunately chose another, wholly inappropriate course of
action: They chose to apply in a persistent and rigorous manner certain rules of
U.S. domestic law, in particular the rule of "procedural default", whose effect
was that no remedy was available to the LaGrand brothers. The authorities did
so in full knowledge that Karl and Walter LaGrand had been unaware of their
rights under the Vienna Convention at the time of the earlier proceedings, and
that they had been unaware of their rights precisely because the Arizona
authorities had failed to comply with their obligations under the Convention to
inform them of those rights without delay.
It was this deplorable attitude in disregard of the United States'
obligations under the Vienna Convention, despite the obviousness of
the violation committed and sustained over a long period, which eventually barred any relief and led to the execution of Karl and Walter
LaGrand.
e) Conclusion
4.82 For the reasons thus given, Germany submits that the United States has
violated the notification requirement contained in Art. 36 (1) of the Vienna
Convention on Consular Relations. If the United States had abided by this
obligation and promptly notified Germany of the situation of the LaGrand
brothers, Germany would have arranged for competent counsel to represent
them and helped in the preparation of their defence. Thus, their case would
have been thoroughly investigated at the trial stage of the criminal
proceedings, and essential mitigating evidence mainly located in Germany
would have been presented during the sentencing phase. There are compelling
reasons to believe that the LaGrands' sentences would have been reduced had
this evidence been introduced. Hence, the lack of consular advice was decisive
for the infliction of the death penalty.
4.83 Further, the United States has violated Art. 36 (2) of the Vienna
Convention because it has not provided any effective remedy against its
violation of the notification requirement. Rather, certain rules of U.S. domestic
law, in particular the rule of "procedural default", made it impossible for the
LaGrand brothers to successfully raise this violation subsequent to their
conviction in the Arizona courts - a circumstance which ultimately led to their
execution.
4.84 The requirement of "prejudice" under domestic law is not in line with Art.
36 (2). But even if it were held otherwise, the law of the United States still
does not meet the requirements of Art. 36 (2) because it does not provide
effective remedies even in the face of such prejudice as in the case of the
LaGrand brothers.
4.85 The United States did not prevent the execution of Karl and Walter
LaGrand irrespective of German demands. By thus making irreversible its
earlier breaches of Art. 5 and 36 (1) and (2) and causing irreparable harm, the
United States violated its obligations under international law.
II. Violations of the rights of aliens resulting from the breaches of the
Vienna Convention
4.86 By not informing Karl and Walter LaGrand without delay following their
arrest of their rights under Article 36 (1) (b) of the Vienna Convention on
Consular Relations, the United States has not only violated its treaty
obligations to Germany in the latter's own right, but also injured Germany
indirectly through its failure to accord to German nationals in the United States
the treatment to which they were entitled under international law.
1. The law of diplomatic protection4.87 According to the rules of international law on diplomatic protection,
Germany is also entitled to protect its nationals with respect to their right to be
informed upon their arrest, without delay, of their rights under Art. 36 (1) (b)
of the Vienna Convention, respectively to the consequences of the omission of
such advice. As Oppenheim's International Law explains:
"Although aliens fall under the territorial supremacy of the state
they enter, they nevertheless remain - as is recognised in Art.
3.1(b) of the Vienna Convention on Diplomatic Relations 1961
- under the protection of their home state. This right of a state to
protect its nationals abroad provides the means whereby it may
enforce the duty of other states to treat aliens on their territory
in accordance with certain legal rules and principles. The failure
of a state to treat aliens on its territory in accordance with its
international obl34ations will involve that state's international
responsibility."
4.88 This view is confirmed by United States practice and doctrine. Thus, the
influential Restatement of the Foreign Relations Law of the United States
provides in § 711:
"A state is responsible under international law for injury to a
national of another state caused by an official act or omission
that violates
(a) ...;
(b) a personal right that, under international law, a state is
obligated to respect of individuals of foreign nationality; ...
35
(c) ... ."
4.89 These opinions are based on a longstanding jurisprudence both of the
present Court and of its forerunner. In one of its earliest judgments, the
Permanent Court of International Justice declared:
"It is an elementary principle of international law that a State is
entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they
have been unable to obtain satisfaction through the ordinary
channels. By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own
rights - its right to ensure, in the person of its subjects, respect
for the rules of international law." 36
As the International Court of Justice explained in the Barcelona
Traction Case: "When a State admits into its territory foreign investments or
foreign nationals, whether natural or juristic persons, it is bound
to extend to them the protection of the law and assumes
37
obligations concerning the treatment to be afforded them."
According to this jurisprudence, the rules on diplomatic protection rest
on a double basis:
"The first is that the defendant State has broken an obligation
towards the national State in respect of its nationals. The second
is that only the party to whom an international obligation is due
can bring a claim in respect of its breach." 38
4.90 Thus, all these pronouncements agree on two conditions for the exercise
of diplomatic protection. First, the violation of an individual right provided by
international law. Second, the existence of a bond of nationality between the
State exercising its right to diplomatic protection and the individual whose
rights were violated. As the Permanent Court has explained,
"it is the bond of nationality between the State and the
individual which alone confers upon the State the right of
diplomatic protection". 39
In the present Case, Germany has already established the existence o40
the bond of nationality between itself and the LaGrand brothers, as
well as the breach of Art. 36 (1) (b) of the Vienna Convention on
Consular Relations by the United States. In the following, Germany
will demonstrate that Art. 36 (1) (b) provides an individual right to
German nationals. The breach of this right in the case of the LaGrand
brothers entails the right of Germany to the exercise of diplomatic
protection on behalf of its nationals.
2. The right to consular advice as an individual right of foreign nationals
4.91 Under international law, a State has a broad measure of discretion in its
treatment of aliens. However, this discretion is not unlimited. It is, inter alia
and above all, subject to the treaty obligations of the State concerned, such as
the obligations under the Vienna Convention on Consular Relations. 41As
Germany will prove, the right to be informed upon arrest of the rights under
Art. 36 (1) (b) of the Vienna Convention does not only reflect a right of the
sending State (and home State of the individuals involved) towards the
receiving State but also is an individual right of every national of a foreign
State party to the Vienna Convention entering the territory of another State
party. As will be set out, this interpretation does not only follow from the
wording, the drafting history and subsequent general State practice concerning
the Vienna Convention, but also corresponds to the bulk of U.S. practice and
jurisprudence.
a) Interpretation of Article 36 (1) (b) of the Vienna Convention4.92 According to the jurisprudence of the International Court of Justice, the
most important means of interpretation of a treaty is the text of the treaty itself:
"[I]n accordance with customary international law, reflected in
Article 31 of the 1969 Vienna Convention on the Law of
Treaties, a treaty must be interpreted in good faith in accordance
with the ordinary meaning to be given to its terms in their
context and in the light of its object and purpose. Interpretation
must be based above all upon the text of the treaty. As a
supplementary measure recourse may be had to means of
interpretation such as the preparatory work of the treaty and the
circumstances of its conclusion." 42
4.93 The wording of Art. 36 (1) (b) firmly supports the view that Art. 36
creates an individual right for nationals of the sending State. The last sentence
of Art. 36 (1) (b) does not speak of obligations of the receiving State only, but
also of "rights" of the person arrested or detained. By stating that it is for the
arrested person to decide whether consular notification is to be provided - and
not for the authorities of the receiving State or the consular post of the sending
State - the Convention puts the foreign individual in the "driver's seat", as it
were. This reading is confirmed by Art. 36 (1)(c) of the Convention, according
to which the national arrested or detained in the receiving State may refuse any
action on his or her behalf which may be taken by his or her consulate against
his or her will. Finally, para. 2 of Art. 36 refers to the "rights referred to in
paragraph 1", presupposing that it is individual rights Art. 36 (1) is dealing
with.
4.94 When analysing the object and purpose of a treaty, recourse to the
preamble of the instrument can help to identify the contracting parties'
intentions in drafting the treaty. In the Supreme Court proceedings in
Breard, 44 the United States advanced the view that Preambular Paragraph 6 of
the Vienna Convention stands in the way of a direct application of Art. 36 of
the Convention in domestic proceedings. The Preambular Paragraph referred to
states that, in the view of the States parties,
"the purpose of such [i.e., consular] privileges and immunities is
not to benefit individuals but to ensure the efficient performance
of functions by consular posts on behalf of their respective
States".
However, the U.S. argument is based on a misunderstanding of the
relationship between Art. 36 of the Vienna Convention and the cited
passage of the Preamble. The Vienna Convention outlines, among other
things, the functions, privileges, and immunities of consuls. Paragraph
5 of the Preamble clarifies that these privileges and immunities do not
grant individual rights to the individual consul, but rights to the sending
state which the latter may waive at any time. Paragraph 5 speaks of
"privileges" and "immunities" and of consular "functions". This
language refers to specific articles of the Convention granting
privileges and immunities to consular personnel (e.g., Art. 29, 32, 33, 35, 40, 41, 49, 50, 52 concerning privileges, and Art. 43 concerning
immunity) or spelling out consular functions. Whereas these Articles
use terms such as "privilege" or "immunity", which are usually referred
45
to as "the consular privileges and immunities", Art. 36 of the Vienna
Convention is neither concerned with a "privilege" nor with an
"immunity". Therefore, Preambular Paragraph 6 does not refer to Art.
36 but rather to those provisions of the Convention that confer
privileges and immunities on the consul, his or her family or staff, and
on the premises of the consulate itself.
4.95 Furthermore, it is hard to imagine how an individual detained in a foreign
State covered by Art. 36 could "abuse" his or her rights under that convention.
Thus, Paragraph 6 of the Preamble of the 1963 Vienna Convention simply
makes no sense if interpreted to apply to the rights of individuals. It makes
perfect sense, however, if understood to relate to privileges and immunities ex
officio. Therefore, the passage in the Preamble discussed here does not in any
way limit the right granted to the individual foreign national.
4.96 A comparison with other treaties on diplomatic or consular relations
reveals that the terms "privileges" and "immunities" usually refer to the rights
that consuls/ diplomats possess because of their function as the sending States'
representatives. The Preamble of the Vienna Convention on Diplomatic
Relations of 18 April 1961, 47in a sense the forerunner of the Vienna
48
Convention on Consular Relations, contains a similar phrase. A resolution
adopted by the Diplomatic Conference of 1961 on that matter accordingly
focuses on the possibility of a waiver of immunities for civil claims. 49
Recalling paragraph 4 of the Preamble to the 1961 Vienna Convention on
Diplomatic Relations (which is identical to the wording of Preambular
Paragraph 6 of the 1963 Vienna Convention on Consular Relations), the
resolution confirms that diplomatic immunity should not be used to shield
consuls from the consequences of their wrongdoings or to frustrate civil claims
brought against them in the courts of the receiving State. This supports the
view that by excluding the exercise of individual rights in the Preambles of the
1961 and 1963 Vienna Conventions, States were aiming at preventing consular
or diplomatic agents from taking personal profit from their status. However,
this rationale does not apply to the object and purpose of Art. 36 (1)(b) of the
1963 Vienna Convention, because this Article does not deal with privileges
granted ex officio at all but with rights of "ordinary" foreign nationals not
exercising any official function. Paragraph 6 of the Preamble to the 1963
Vienna Convention therefore does not determine the object and purpose of Art.
36 of the Convention.
b) Travaux préparatoires of the Vienna Convention on Consular
Relations
4.97 As already pointed out, 50the travaux préparatoires may clarify the
purpose of Art. 36 (1) (b) even further. We will first turn to the discussion of
the issue of consular advice and notification in the International Law
Commission, and, following that, to the proceedings of the 1963 Vienna
Conference.(1) Discussions within the ILC (1960-1961)
4.98 From the very beginning of the ILC's debate on what was to become the
future Art. 36, Commission members were aware of the fact that by including
such an article, they would codify an individual right. The ILC draft articles
still foresaw an obligation of the receiving State to automatically notify the
sending State's consular officer of the detention of its nationals. During the
Vienna Conference, after some discussions, this obligation was amended to
become an obligation of notification upon request of the detainee.
Nevertheless, the debates within the ILC show that the Commission proceeded
from the assumption that foreign nationals do possess an individual right to
contact their consul.
Art. 30A, as proposed by Special Rapporteur Sir Gerald Fitzmaurice,
read:
"In order to facilitate the exercise of the consul's function of
protecting the nationals of the sending State resident or present
within his district.
(a) A consul shall have complete freedom of communication
with and access to such nationals, and correspondingly they
shall have complete freedom of communication with the consul,
and also (unless subject to lawful detention) of access to him.
(b) The local authorities shall inform the consul of the sending
State without delay when any national of that State is detained
in custody within its district ... ."
As Mr. Milan Bartos observed in the deliberations of the International
Law Commission, Art. 30 A "was intended to safeguard human rights
..." . And further:
,,A code such as the Commission was preparing was an
integrated whole and in its definition of the consular functions
the human rights of a foreigner could not be ignored, for it was
precisely one of the consul's functions to protect those rights of
his nationals."53
Mr. George Scelle
"agreed with Mr. Bartos that the protection of individual and
54
human rights was one of the consular functions."
And Mr. Douglas Edmonds (from the United States) observed:
"[T]he protection of human rights by consuls in respect of their
nationals shoul55be the primary consideration for the
Commission." Speaking at the 13th session in 1961, Mr. Edmonds called the right of a
foreigner to communicate with the consulate of his or her home state "a
very fundamental human right". 56
4.99 Members of the ILC critical of a right of communication were opposed to
such a right precisely because it involved a human right, which, in their view,
had no place in a convention on consular relations. For Mr. Jaroslav Zourek,
the right to communication went
"beyond what seemed to him the proper province of consular
law and had impinged upon such matters as human rights...". 57
4.100 Taken together, these statements strongly indicate that the members of
the ILC were well aware of the specific character of the proposed right of
communication of nationals with the consulates of their home States as a full-
fledged human right, as opposed to the privileges and immunities dealt with in
the other parts of the Commission's draft. It was precisely this specific nature
of what later was to become Art. 36 which guided their work.
(2) Discussions at the Vienna Conference on Consular Relations
4.101 At the Vienna Conference of 4 March to 22 April 1963, consensus on
the future Art. 36 was reached only at the last minute. The reason for the
division of opinions lay in the question of whether or not the provision ought
to embody a duty of automatic notification (as proposed by the ILC) or of
notification upon request. The view that the article contained a right pertaining
to the individuals concerned remained unchallenged, however.
For instance, the Spanish delegate to the Conference, Mr. Perez
Hernandez, remarked that
"[t]he right of the nationals of a sending State to communicate
with and have access to the consulate and consular officials of
their own country, established by the International Law
Commission's draft, was one of the most sacred rights of
foreign residents in a country." 58
The delegate of India, Mr. Das Gupta, emphasised that
"the right given to consulates implied a corresponding right for
nationals."59
This right was also asserted by the delegate of the Republic of Korea,
Mr. Chin. According to him,
"the receiving State's obligation under [Art. 36] paragraph 1 (b)
was extremely important, because it related to one of the
60
fundamental and indispensable rights of the individual." The Tunisian delegate, Mr. Bouziri, argued in favour of the final
version of Art. 36 by pointing to the adequate safeguard of both
individual freedom and the exercise of consular functions. 61
4.102 Various States submitted amendments to the ILC draft criticising the
proposed automatic notification of the receiving State upon detention of a
foreign national. Instead, most of these States favoured such an obligation only
upon request of the detained individual. This, of course, strengthened the
"human rights element" in Art. 36 since the will of the person concerned was
rendered more important. The obligation to inform the detainee of his options
also gained additional weight.
4.103 What is relevant in our context is that during the 1963 Vienna
Conference, the Respondent in the present case was one of the leading
sponsors of a modification of the ILC draft away from automatic notification.
Thus, the United States proposed an amendment to Art. 36 making the
notification of an arrest to the consulate dependent upon the request of the
foreign national concerned. As the U.S. delegate, Mr. Blankinship, explained
in the Second Committee,
"[t]he object of the amendment was to protect the rights of the
national concerned." 63
In the plenary, he added:
"In its present form [without the amendment] the draft of Art.
36 ... did not recognize the freedom of action of the detained
persons ... ."4
According to the French delegate, Mr. de Menthon,
"the amendment affirmed one of the fundamental rights of man
65
- the right to express his will freely."
Some States were opposed to this amendment. In their view, making
notification dependent upon request would weaken the protection of the
individual in Art. 36 who often would not know of his or her right to
have the consulate notified of his or her arrest or detention. Thus, these
delegations were also concerned with the rights of the individual
derived from that provision. These concerns were justified to a large
extent because, at the time, the article did not yet contain a clause
requiring the local authorities to inform the detainee of his or her rights
as finally provided in Art. 36.
4.104 A concern that the national might be ignorant of his or her right was
expressed by several delegates. For instance, Mr. Dadzie from Ghana was of
the opinion "that the (mentioned) amendment involved a risk: a national of
the sending State ... might not know that his consulate should be
66
notified, and might therefore fail to request notification."
The Soviet delegate, Mr. Konzhukov, asked:
"What guarantee was there t67t the person concerned had been
informed of his right...?"
4.105 Finally, a few days before the end of the 1963 Conference, several
countries submitted a proposal to amend the ILC version of Art. 36, containing
no obligation of automatic notification but rather 68oviding for notification of
the consulate only upon request of the detainee. The United Kingdom
submitted, again, an amendment to that proposal, requiring the local authorities
to inform the detainee of his rights. To justify this amendment, the delegate
of the United Kingdom, Mr. Evans, stated that:
"The language of the [first-mentioned proposal] was
unacceptable as it stood, because it could give rise to abuses and
misunderstanding. It could well make the provisions of article
36 ineffective because the person arrested might not be aware of
his rights. ... For those reasons, ... it was essential to introduce a
provision to the effect that the authorities of the receiving State
should inform the person concerned without delay of his rights
... ."0
The amendment of the United Kingdom was accepted by 65 votes to 2
(13 abstaining).
4.106 States opposing the version of Art. 36 thus adopted did so because they
were of the opinion that a provision conveying a human right had no place in
the Convention. Thus, the representative of Kuwait, Mr. Sayed Mohammed
Hosni, remarked that, in his opinion,
"the International Law Commission's text introduced a novelty
to the convention by defining the rights of the nationals of the
sending States and not, as stated in paragraph 1 of the
commentary, the rights of consular officials. ... As
representative of a country with many aliens on its territory, he
fully believed in the rights of nationals of sending States and
was against restricting them; but they were irrelevant to the
convention under discussion." 71
The Venezuelan delegate, Mr. Perez-Chiriboga, argued in favour of the
deletion of the reference to individual rights, explaining that
"the draft convention was not the appropriate instrument" [to
codify rights and duties of nationals]. 72 Due to strong opposition, Venezuela finally dropped its proposal to
delete the paragraph. 73
4.107 The statements thus reproduced demonstrate a remarkable consensus
among the representatives of a great number of States from different regions of
the world. Even States opposing the codification of rights of individual
nationals in the Convention agreed that the proposed Article did precisely this -
stipulate individual rights. But the overwhelming majority was of the opinion
that international law had reached a stage where a codification of consular law
could not proceed without a norm providing for individual rights of foreign
nationals. In the words of the delegate of Greece, Mr. Spyridakis, by providing
an individual right, the Conference
"was also following the present-day trend of promoting and
protecting human rights, for which future generations would be
grateful."74
c) The UN Declaration on the human rights of aliens
4.108 Other international instruments support this view. Art. 10 of the United
Nations Declaration on the human rights of individuals who are not nationals
of the country in which they live, which was adopted by UN General
Assembly Resolution 40/144 on 13 December 1985, 75 also guarantees the
freedom of communication for a foreign national with the consulate of his or
her home State:
"Any alien shall be free at any time to communicate with the
consulate or diplomatic mission of the State of which he or she
is a national or, in the absence thereof, with the consulate or
diplomatic mission of any other State entrusted with the
protection of the interests of the State of which he or she is a
national in the State where he or she resides."
Thus, according to this Declaration, the right of access to the consulate
of the home State, as well as the information on this right, is the right
of any alien, that is of "any individual who is not a national of the State
in which he or she is present" (Art. 1 of the Declaration). The
Declaration stresses the close link between the rights of aliens to
consular assistance and human rights.
4.109 This link also becomes apparent from the drafting history of the
Declaration. During the travaux préparatoires in the ECOSOC and within a
Working Group charged with the elaboration of what was to become GA Res.
40/144, various Governments referred to the close relationship between Art. 10
of the resolution and Art. 36 of the Vienna Convention on Consular Relations.
For instance, the Japanese Government favoured the inclusion of the words "in
accordance with the provisions of Art. 36 of the Vienna Convention on
Consular Relations" in the text of Art. 10. 76 Similarly, the Norwegian
Government pointed to the fact that (the final) Art. 10 of t77 Declaration and
Art. 36 of the Vienna Convention contain the same right.4.110 General Assembly Resolution 40/144 is not legally binding upon States.
But an analysis lege artis must not stop there. As this Court has noted in its
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,
"General Assembly resolutions, even if they are not binding,
may sometimes have normative value. They can, in certain
circumstances, provide evidence important for establishing the
existence of a rule or the emergence of an opinio juris. To
establish whether this is true of a given General Assembly
resolution, it is necessary to look at its content and the
conditions of its adoption; it is also necessary to see whether an
opinio juris exists as to its normative character."78
Whereas the specific resolutions referred to in the Advisory Opinion
had been adopted with a considerable number of negative votes and
abstentions, our Declaration was adopted by consensus, without a
single vote against or any abstention. Nevertheless, even in the case of
the General Assembly resolutions concerning nuclear weapons, the
Court did accord these resolutions considerable weight in interpreting
the relevant law on the matter. As the International Criminal Tribunal
for the Former Yugoslavia explained with regard79o the United Nations
Declaration on Torture of 9 December 1975,
"[i]t should be noted that this Declaration was adopted by the
General Assembly by consensus. This fact shows that no
member State of the United Nations had any objection to such
definition. In other words, all the members of the Unit80
Nations concurred in and supported that definition."
The use of the label "Declaration" is additional proof to the fact that the
General Assembly considered the contents of Resolution 40/144 as
particularly significant.
4.111 Second, irrespective of whether the Declaration as such is legally
binding or not, it certainly constitutes "subsequent practice in the application of
the treaty which establishes the agreement of the parties regarding its
interpretation" in the terms of Art. 31 (3) (b) of the 1969 Vienna Convention
on the Law of Treaties, which i81generally considered to be an expression of
customary law on the matter. Therefore, the declaration is important evidence
of opinio juris and international practice on the character of Art. 36 (1) (b) of
the 1963 Vienna Convention on Consular Relations as embodying an
individual right of aliens on foreign territory.
d) Recognition of the individual right to consular advice by United States
domestic law
4.112 The foregoing analysis is supported by United States jurisprudence and
practice. In the process of obtaining the consent of the U.S. Senate to the
ratification of the 1963 Vienna Convention, the Administration declared that
the Convention was self-executing, that is, directly applicable in internal lawwithout the need for any implementing legislation. In the words of the Deputy
Legal Adviser of the U.S. Department of State, Mr. J. Edward Lyerly, the
treaty was
"entirely self-executive [sic] and does not require any
implementing or complementing legislation." 82
4.113 Obviously, the international legal obligations of the United States do not
depend on the question whether a treaty is self-executing pursuant to United
States internal law or not. In the United States Government brief to the
Supreme Court in the Breard Case, the U.S. Solicitor General asserted that the
Convention was self-executing but did not provide for an individual right:
"The United States agrees that the Vienna Convention is self-
executing, in the sense that it can be implemented by
government officials without implementing legislation. That
issue is distinct from the question whether the Convention
creates enforceable rights that may be raised and adjudicated in
a particular judicial setting."84
But the self-executing character of the Convention as a whole, and that
of the right provided in Art. 36 (1) (b), is strong evidence that U.S. law
itself regards the right to consular advice as an individual right and not
as a mere reflex of a duty incumbent on the United States Government.
4.114 In its brief to the Supreme Court, the U.S. Government cited one of the
leading U.S. experts in the field, Professor Carlos Manuel Vázquez, to the
effect that Art. 36 (1) (b) was not enforceable by individuals. 85Indeed,
Professor Vázquez was right in pointing out that the question of the self-
executing character of a treaty and that of a right of action pursuant to a treaty
86
provision are "analytically distinct". However, the reference to Professor
Vázquez' article by the U.S. Government is misleading, because in a footnote,
Professor Vázquez then explains that
"[t]he 87anding issue is closely related to the right-of-action
issue."
In an earlier article on the subject, Professor Vázquez had gone into
further detail:
"In treaty cases, therefore, an important factor in determining
whether a private right of action should be `implied' under a
treaty that does not expressly confer one is whether failure of
the courts to afford the remedy would produce (or exacerbate)
the international responsibility of the United States to the state
of the individual's nationality. If it would, a private right of
action to obtain that remedy under domestic law should be
considered to be implicit in the treaty." 88 As Germany will argue in detail later, 89 the violation of the right to
information on consular access under Art. 36 (1)(b) of the Vienna
Convention does indeed entail the international responsibility of the
State concerned.
4.115 Professor Vázquez further argues that a right of action is not necessary if
a self-executing provision is used as a defence, e.g. in a criminal case, or if
national law provides for a right of action on its part, which is also the case in
criminal proceedings:
"Defendants relying on a treaty as a defense to a criminal
prosecution (or claiming that the treaty governs the conditions
of their confinement) do not need a `private right of action,' as
they are not seeking to maintain an action." 90
Thus, the arguments of Professor Vázquez support rather than
contradict Germany's interpretation of Art. 36 (1) (b) of the 1963
Vienna Convention as establishing an individual right.
4.116 The U.S. Supreme Court itself has also clearly expressed the connection
between the self-executing character of a provision and enforcement by courts:
"The Extradition Treaty has the force of law, and if, as
respondent asserts, it is self-executing, it would appear that a
court must enforce it on behalf of an individual regardless of the
91fensiveness of the practice of one nation to the other nation."
4.117 Notwithstanding the opinion of the Federal Government during the
ratification process that the Vienna Convention was self-executing, the United
States incorporated the obligation of consular notification at the request of the
detained person in the Code of Federal Regulations, which is to be applied by
federal offices and agencies but not by state and local authorities. § 50.5 (a) (1)
of Title 28 of the Code reads:
"In every case in which a foreign national is arrested the
arresting officer shall inform the foreign national that his consul
will be advised of his arrest unless he does not wish such
notification to be given. If the foreign national does not wish to
have his consul notified, the arresting officer shall also inform
him that in the event there is a treaty in force between the
United States and his country which requires such notification,
his consul must be notified regardless of his wishes and, if such
is the case, he will be advised of such notification by the U.S.
Attorney." 92
Similar provisions can be found in the Immigration Regulations. Thus,
Section 236.1 (e) of the Code of Federal Regulations provides that "[e]very detained alien shall be notified that he or she may
communicate with the consular or diplomatic officers of the
country of his or her nationality in the United States." 93
Thus, U.S. federal law provides for the very right to consular
information whose existence as an individual right the U.S. government
is denying in the present case. However, as explained above, the
provisions in U.S. federal law cannot be of help to those detainees who
are detained in State criminal proceedings which are not regulated by
federal law.
4.118 Several U.S. courts have recognised that Art. 36 (1) (b) of the Vienna
Convention provides for an individual right. This jurisprudence was
established in cases dealing with federal agencies not subject to the law of the
individual states. For instance, according to the U.S. 9th Circuit Court, the
immigration regulations mentioned above were intended to implement U.S.
obligations stemming from the Vienna Convention and therefore served the
benefit of the individual alien. As the Court explained,
"the regulation itself must serve a purpose of benefit to the
alien. ... [T]he particular regulation involved here, 8 C.F.R. §
242.2(e) (1979), serves such a purpose. It was intended to insure
compliance with this country's treaty obligations to promote
assistance from their country of origin for alien94facing
deportation proceedings in the United States."
Only recently, in the case of United States v. Lombera-Camorlinga, the
9th Circuit Court unequivocally confirmed this jurisprudence. Because
of the clarity and the quality of its reasoning, the decision deserves to
be cited at length:
"The government, however, reasons that the right violated by
the customs officers belonged not to the appellant, as an
individually affected foreign national, but rather to the Mexican
Consulate. Based on this reasoning, the government contends
that the appellant lacks standing to complain of the violation.
We disagree.
While one of the purposes of Article 36 is to `facilitat[e] the
exercise of consular functions relating to nationals of the
sending State,' Convention, art. 36(1), foreign nationals are
more than incidental beneficiaries of Article 36(1)(b). The
treaty language itself clearly states that the rights enumerated in
sub-paragraph 36(1)(b) belong to the foreign national: `The said
authorities shall inform the person concerned without delay of
his rights under this sub- paragraph.' Convention, Article
36(1)(b) (emphasis added). It strains the English language to
interpret `his rights' in this context to refer to the Consulate's
rights. We held in United States v. Rangel-Gonzales, 617 F.2d
529, 532 (9th Cir.1980), that `[t]he right established by the regulation [intended to ensure compliance with the Convention]
and in this case by treaty is a personal one.'
Moreover, the language of the provision is not precatory, but
rather mandatory and unequivocal. See INS v. Cardoza-
Fonseca, 480 U.S. 421, 441, 107 S.Ct. 1207, 94 L.Ed.2d 434
(1986) (contrasting mandatory obligations and `precatory'
provisions under the United Nations Protocol Relating to the
Status of Refugees). Accordingly, individual foreign nationals
have rights under Article 36(1)(b) of the Vienna Convention.
The government further contends that, even if the Vienna
Convention establishes individual rights, individuals do not
have standing to enforce those rights. This contention lacks
merit.
It has long been recognized that, where treaty provisions
establish individual rights, these rights must be enforced by the
courts of the United States at the behest of the individual. See
United States v. Rauscher, 119 U.S. 407, 418- 19, 7 S.Ct. 234,
30 L.Ed. 425 (1886) (citing Head Money Cases, 112 U.S. 580,
5 S.Ct. 247, 28 L.Ed. 798 (1884)); see also United States v.
Alvarez- Machain, 504 U.S. 644, 659-60 (1992) (recognizing
the continuing authority of Rauscher ). Because Article 36(1)(b)
establishes individual rights, these rights must be enforced by
our courts."95
4.119 Thus, an analysis of United States law and jurisprudence convincingly
shows that Art. 36 (1) (b) constitutes an individual right both under the
domestic law of the United States and according to the interpretation of the
Vienna Convention by U.S. courts. Regrettably the U.S. courts have not
applied these holdings to the (in)applicability of the doctrine of procedural
default and related doctrines limiting access to federal courts, in order to
enforce these individual rights.
3. Conclusion
4.120 Both under international and U.S. domestic law, Art. 36 (1) (b) of the
Vienna Convention provides for an individual right of foreigners - a right
which the United States has violated in the case of the LaGrand brothers.
According to the law of diplomatic protection, this conduct is in breach of the
right of the State of which the LaGrands were nationals. Therefore, Germany
"is entitled to protect its subjects, when injured by acts contrary
to international law committed by another State, from whom
they have been unable to obtain satisfaction through the
96
ordinary channels."
III. Non-observance by the United States of the Order on Provisional
Measures of 3 March 19991. Introduction
4.121 In executing Walter LaGrand, the United States acted contrary to a
binding order of this Court and breached its obligations under Art. 94 (1) of the
United Nations Charter and Art. 41 (1) of the Statute of the International Court
of Justice.
The conduct of the United States was not only impermissible under
international law but also showed a lack of respect for the authority of
the International Court of Justice. Even though the Respondent has
never gone as far as to deny the authoritative character of orders on
provisional measures before this Court itself, it has refrained from
taking the required steps to implement the specific Order in question.
2. Orders indicating Provisional Measures are binding on the parties
4.122 Provisional Measures indicated by the International Court of Justice are
binding by virtue of the law of the United Nations Charter and the Statute of
the Court. A reasonable interpretation of the applicable norms inevitably leads
to this result, which is the only one permitting the Court to efficiently carry out
the tasks entrusted to it, and permitting the Provisional Measures to fulfil their
function by preserving the rights of both parties. Indeed, as Judge
Weeramantry put it:
"An interpretation which imposes anything short of a binding
legal obligation upon the Respondent is out of tune with the
letter and spirit of the Charter and the Statute."7
4.123 Like the preceding Breard Case, the present Case is a telling example of
why an indication of Provisional Measures must be regarded as binding.
Walter LaGrand has lost his life as a result of the deliberate conduct of the
authorities of the United States. Therefore, the Court is deprived of the
possibility of rendering a Judgment on the basis of Germany's original
Application.
4.124 The question of the existence of a machinery for the enforcement of
Orders indicating Provisional Measures has not to be dealt with in the present
context. Therefore, no conclusions can be drawn from the fact that the Charter
contains an express provision on enforcement only with regard to Judgments of
the International Court of Justice. As Judge Weeramantry has pointed out in
the Genocide Case:
"Whether such an order is complied with or not, whether it can
be enforced or not, what other sanctions lie behind it - all these
are external questions, not affecting the internal question of
inherent validity."98
a) The principle of institutional effectiveness4.125 First of all, any discussion of the legal character of Provisional Measures
must take into account that the Court is a judicial body whose task it is to reach
a decision in a case brought before it on the basis of the equality of parties.
This presupposes that the object of the dispute must remain free from unilateral
interference during the entire course of the proceedings. Therefore it must be
part of the authority of an international tribunal to take the necessary steps to
ensure that the subject of the litigation is preserved until the final judgment is
rendered. As to its source, the power to indicate interim measures can be
deduced from a general principle of law reflecting the procedural laws of a
99
great number of national legal systems. In light of this, could there be any
basis for maintaining that the International Court of Justice in particular, the
principal judicial organ of the United Nations, were the exception and did not
possess such competence inherent in the judicial function?
4.126 It would be contradictory, on the one hand, to grant the Court
jurisdiction to decide a case, and, on the other, not to provide it with the
necessary means to fulfil this task. To quote Judge Ajibola:
"Logic and common sense would consider it ridiculous and
absurd for the Court to be unable to preserve the rights of the
100
parties pending the final judgment."
And in the words of Judge Weeramantry:
"The view that provisional orders are part of the inherent
authority of a judicial tribunal is ... one which is sustainable on
general principle, on practical necessity, and on the basis of a
not inconsiderable body of authority. Principles that may be
invoked in support of such a view include the principle of
equality of parties, the principle of effectiveness, the principle
of non-anticipation by unilateral action of the decision of the
Court, and also the wide and universal recognition of the
enjoining powers of courts as an inherent part of their
jurisdiction. "101
If procedural orders were not binding, the Court could not work
efficiently but would always remain dependent on the good will of the
parties. Such a construction can hardly be reconciled with the position
of this Court as the principal judicial organ of the international
community. As Edvard Hambro has stated:
"It would not be in conformity with the august character of the
Court as an `organ of international law' and as the `principal
judicial organ of the United Nations'... to make any decision
that the parties were free to respect or ignore according to their
own pleasure." 102
4.127 This Court has an invaluable function in the peaceful settlement of
disputes and the development of international law. In order to effectively fulfilits tasks, it must possess the necessary instruments. To once more quote Judge
Weeramantry:
"To view the Order made by the Court as anything less than
binding so long as it stands would weaken the régime of
international law in the very circumstances in which its
restraining influence is most needed." 103
b) Procedural prerequisites for the adoption of Provisional Measures
4.128 Another factor speaking in favour of the binding force of Provisional
Measures is the procedural framework within which such measures are
adopted. The Court has developed a detailed jurisprudence as to the
prerequisites for a Provisional Measure. 104It balances the interests of the
parties with utmost scrutiny, and refrains from issuing the requested measure if
it holds that prima facie the rights to be protected or its jurisdiction do not exist
or that there is no danger of an irreparable damage. Why should the Court be
so cautious if it was acting at an exhortatory, recommendatory level only? In
the words of Sir Hersch Lauterpacht:
"It cannot be lightly assumed ... that the Court weighs minutely
the circumstances which permit it to issue what is no more than
an appeal to the moral sense of the parties." 105
And, as Judge Ajibola put it:
"[W]hat is the point of giving a request for an indication of
provisional measure [sic] urgent attention, a quick and
immediate hearing and priority ..., if in spite of all the effort put
into it, the resulting order is to be considered not legally binding
106
and ineffective?"
c) Binding force of Provisional Measures as a necessary corollary to the
binding force of the final judgment
4.129 As a logical result of the binding force of the final judgment, Provisional
Measures have to be considered as binding as well. Once a jurisdictional link is
established, an applicant is entitled to a binding Judgment. The respondent has
no possibility to withdraw its consent to pending proceedings. The applicant's
right to a final, binding decision on the merits must receive adequate protection
by equally binding Provisional Measures. If withdrawal of consent is not
permissible, it cannot be reasonably assumed that a State could be allowed to
obtain the same result by action frustrating the opponent's claim.
As the representative of the United Kingdom, Sir Gladwynn Jebb,
pointed out in the Security Council in connection with the non-
compliance with a Provisional Measure indicated by the Court in the
Anglo-Iranian Oil Case: "[C]learly, there would be no point in making the final
[judgment] binding if one of the parties could frustrate that
decision in advance by actions which would render the final
judgment nugatory. It is, therefore, a necessary consequence ...
of the bindingness of the final decision that the interim
measures intended to preserve its efficacy should equally be
binding." 107
4.130 In fact, Art. 59 and 60 of the Statute of the Court would be substantially
weakened if it were open to the parties to negate the final decision by action
taken in advance. In the words of a commentator:
"A provision that the final judgment is binding becomes
pointless if that decision can be negatived [sic] 108actions of
one of the parties in advance of the judgment."
It would seem to follow, therefore, from the binding force of final
Judgments that interim measures, intended to ensure the effectiveness
of those final decisions, are of equally binding character.
4.131 As a general rule applying to judicial settlement of disputes at the
national as well as the international level, if the final decision is binding, an
interim measure must be regarded as binding, too. 109 Such symmetry is to be
presumed, and wherever the situation is to be different, clear indications must
exist in this regard, e.g., the use of a formula such as "the Court may bring to
the attention of the parties desirable measures". But otherwise, what will apply
is a general rule to the effect that whenever a final Judgment is binding, the
Provisional Measures will be binding as well.
d) Article 94 (1) of the United Nations Charter establishes an obligation to
comply with Provisional Measures
4.132 Apart from general considerations, the legal character of Provisional
Measures results from express legal provisions.
Under Art. 94 (1) of the United Nations Charter, all parties to a dispute
before this Court undertake to comply with its decisions. Admittedly,
the second paragraph of that provision deals with Judgments only. But
it is hardly conceivable that in one provision reference would be made
to the same notion by using two different words. In legal texts, recourse
to two different words generally implies two differing underlying
concepts. It is thus widely accepted that the term "decision" includes
both Judgments and Provisional Measures: it refers to all decisions of
110
the Court regardless of their form. The Court itself has treated
Provisional Measures as decisions, as is demonstrated by Articles 74
(2), 76 (1) and 76 (3) of the Statute.111
This argument has been emphasised by the United States itself in the
Hostages Case: "Iran had formally undertaken, pursuant to Article 94,
paragraph 1, of the Charter of the United Nations, to comply
with the decision of the Court in this case to which Iran might
be is a party. Accordingly it was the hope and expectation of the
United States that the Government of Iran, in compliance with
its formal commitments and obligations, would obey any and all
Orders and Judgments which might be entered by this Court in
the course of the present litigation."112
4.133 In the view of J. Sztucki, Art. 94 (1) does not confer binding force on
Provisional Measures113ather, the terms "decision" and "judgment" are to be
seen as synonyms. In his view, the two paragraphs of Art. 94 simply use the
same language as Art. 59 of the Statute ("binding decision") and nobody ever
claimed that this provision was applicable to Provisional Measures. However,
logic as well as an analysis of the object and purpose of Art. 94 must lead to
the opposite result.
e) Article 41 (1) of the Statute of the Court establishes an obligation to the
same effect
4.134 An additional basis for the obligation to comply with Provisional
Measures is to be found in Article 41 (1) of the Statute. Pursuant to this
provision,
"[t]he Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought
to be taken to preserve the respective rights of either party."
Some commentators have taken the view that the language used in this
provision is merely precatory. However, this argument is not valid:
4.135 An interpretation of the provision according to the law of treaties clearly
demonstrates that Provisional Measures do have binding force. Pursuant to Art.
31 (1) of the Vienna Convention on the Law of Treaties, a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of the treaty's object
and purpose.
4.136 First of all, any interpretation must bear in mind that the Statute is a
treaty, that is, a legal instrument creating rights and obligations for the parties.
The provisions of treaties are normally of a legal character, and binding as a
matter of law. If a treaty prescribes duties, the rule is that these duties will be
legal instead of purely moral. Of course, the parties are free to include non-
binding provisions in a treaty as well, but this is the exception rather than the
rule. Thus, normally, if a treaty prescribes that the parties must behave in a
particular manner, it establishes a mandatory obligation. To quote Sir Hersch
Lauterpacht once again: "It cannot be lightly assumed that the Statute of the Court - a
legal instrument - contains provisions relating to any merely
moral obligations of States" 11.
(1) Ordinary meaning
4.137 As for the ordinary meaning of the terms used, the terminology used in
Art. 41 (1) implies a binding character.
Thus, the use of the word "power", which in normal parlance denotes
the capability to demand compliance, provides a strong argument for
the obligatory character of the provision. If the Court were only
supposed to deliver exhortatory advice, it would not need "power" to
do so. Since it cannot be presumed that the Statute contains useless and
unnecessary provisions, Art. 41 (1) must go beyond the sphere of non-
bindingness. In the words of Judge Weeramantry:
"One cannot see the Statute as solemnly investing the Court
with special power under Article 41 if the sole object of that
power was to proffer non-binding advice, which the parties
were perfectly free to disregard. A word with such heavy
connotations as `power' must clearly have been meant to give
the Court an authority it did not otherwise have - an authority to
impose on parties an obligation wh115, without such a word,
would not be binding on them."
Hence, by virtue of Article 41, which vests the Court with a special
power, the indicated Measures possess binding force.
4.138 The word "ought to" connotes an obligation and can have no other
meaning when used in the context of the activities of a court. Moreover, it has
to be seen in context with its reference to "rights" - which implies a
corresponding duty - and the "power" of the Court mentioned before. 116
4.139 Finally, "indicate" is an expression of the judicial function of the Court,
that is, "to point out what the parties must do in order to remain in harmony
with what the Court holds to be the law." 117Moreover, the term "indicate"
must not be regarded in isolation, but in connection with "if the circumstances
118
so require", which is indicative of a compulsory character as well.
The reluctance to use a stronger formula can be explained as follows:
"The term indicate, borrowed from treaties concluded by the
United States with China and France on September 25, 1914,
and with Sweden on October 13, 1914, possesses a diplomatic
flavor, being designed to avoid offense to the susceptibilities of
states. It may have been due to a certain timidity of the
draftsmen. Yet it is not less definite than the word order would
have been, and it would seem to have that effect ... An
indication by the Court under Article 41 is equivalent to a declaration of an obligation contained in a judgment, and it
ought to be regarded as carrying the same force and effect." 119
Thus, the language used was not intended to deprive Provisional
Measures of binding force but to stress the caution and wariness
expected from the Court in the exercise of its powers. 120
4.140 Another explanation for the language will be that in many cases it might
be appropriate for the Court, under Art. 41 of its Statute, to limit itself to
indicating broad directions and leaving the selection of the most appropriate
means of implementation to the concerned State itself. Thus, the language is
illustrative of the co-operation between the Court and the States in this field. 121
(2) Context
4.141 The context within which Art. 41 (1) operates undoubtedly indicates the
binding force of Provisional Measures. First of all, Art. 92 ff. of the UN
Charter and the Statute of the Court as a whole have to be taken into account.
What is at stake is not the functioning of any dispute settlement body, but the
position of the principal judicial organ of the United Nations, the World Court,
whose task is to decide legal disputes in judicial proceedings. The Statute is the
statute of a Court, not of an advisory body. The Court has always been very
cautious to maintain its judicial character. It held that it may only act where a
judgment
"can affect existing legal rights or obligations of the parties,
thus removing uncertainty from their legal relations" 12.
On the other hand, it has refused to give a judgment
"which would be dependent for its validity on the subsequent
approval of the parties". 123
If we apply this jurisprudence to Provisional Measures, if they were
construed as non-binding, they would be dependent on the parties'
approval and not affect existing rights and obligations.
Moreover, Art. 41 (1) has to be seen in connection with the obligation
to comply with Provisional Measures arising under Art. 94 (1) of the
Charter, which has been mentioned above.
4.142 A further argument in favour of the binding force of Provisional
Measures can be supplied by reference to Art. 78 of the Rules of Court, which
empowers it to
"request information from the parties on any matter connected
with the implementation of any provisional measures it had
indicated". As Judge Ajibola observed, this is a strong argument in favour of the
binding force of interim measures:
"This is a clear ind124tion that the Court is not expected to give
any order in vain."
4.143 Finally, Art. 41 (1) of the Statute is part of its Chapter III on procedure.
Procedural orders as such are legal in character and incorporate obligations; the
parties are not free to comply with them or not. The Court may draw
consequences in case of non-compliance, leading to disadvantages for the non-
complying party in the course of the respective proceedings. As concerns
orders under Art. 48 of the Statute, they can be enforced under Art. 53 of the
Statute. If other procedural orders mentioned in the same Chapter are legally
binding, why should there be a difference for Provisional Measures? Why
should orders on relatively minor issues, like the form and the time for the
delivery of arguments, possess binding force, whereas orders on Provisional
Measures that are so crucial for the preservation of a party's rights and for the
fulfilment of the judicial function do not? Such a result would contradict all
common sense. A minori ad maius, the more solemn and serious ord125 under
Art. 41 of the Statute have to be regarded as binding as well.
4.144 To avoid misunderstandings, some clarifications should be made with
regard to a statement of the Permanent Court of International Justice in the
Case concerning Free Zones of Upper Savoy and the District of Gex, according
to which interlocutory
"orders ... have no `binding' force ... or `final' effect ... in
deciding the dispute brought by the Parties before the Court". 126
What the Court intended to say here was not that the Parties are free to
respect or not respect Provisional Measures. Rather, it referred to the
lack of binding force with regard to the final Judgment. 127As Judge
Weeramantry explained:
"The Court was there merely giving expression to the principle
that `an order has no binding force on the Court in its ultimate
decision on the merits'." 128
4.145 Provisional Measures do not achieve the status of res judicata, as
opposed to an interim Judgment, which would constitute a final and, in
principle, irreversible decision in the case, at least partially. But even if
Provisional Measures are not binding on the Court, they must be obligatory for
the parties in order for their purpose to be achieved. This is the normal feature
of Provisional Measures in municipal law as well: they are provisional, that is,
without conclusive effect on the final decision, but at the same time binding on
the parties.
4.146 No argument against binding force can be deduced from the formula
"measures suggested" used in Art. 41 (2) of the Statute. The word "suggested"
appears in the English text only whereas the other authentic languages all useterms equivalent to "indicated". There is no indication that by this paragraph,
which regulates notification of the measures, the first paragraph was to be
modified. Thus, the formula cannot change the result of our interpretation of
Art. 41 (1) of the Statute of the Court.
(3) Object and purpose
4.147 Any interpretation of a treaty provision must pay particular attention to
its object and purpose. As Art. 41 (1) of the Statute spells out, its objective is
to preserve the respective rights of either party pending a final decision on the
merits. Moreover, the provision aims at securing the Court's ability to resolve,
within the ambit of its jurisdiction, disputes under international law.
If the parties were not obliged to comply with Provisional Measures,
these objectives could not be attained. If a party could render
impossible the relief requested during proceedings, the rights affected
would be left without effective protection. Thus, the Court would not
be able to fulfil the task conferred on it by Art. 41 (1) of the Statute.
Similarly, the Statute's purpose to enable States to have their disputes
resolved judicially and to give them an entitlement to this effect under
the condition of a jurisdictional link, could not be achieved.
As Judge Koroma stated in his Declaration in the Case concerning
Legality of Use of Force:
"Under Article 41 of the Statute of the Court, a request for
provisional measures should have as its purpose the
preservation of the respective rights of either party pending the
Court's decision. ... Where the risk of irreparable harm is said to
exist or further action might aggravate or extend a dispute, the
granting of the relief becomes necessary. It is thus one of the
129
most important functions of the Court."
The Court itself has frequently emphasised that its authority under Art.
41 of the Statute presupposes that its Judgment
"should not be anticipated by reason130 any initiative regarding
the measures which are in issue."
As emphasised above, a State cannot withdraw its consent after
proceedings have begun; the jurisdictional link, once established,
remains valid for the respective case; it is not possible for the
respondent to prevent the Court from rendering a Judgment once it has
jurisdiction. This being so, States must be prohibited from interfering
with the subject-matter of the case.
4.148 In sum, Provisional Measures can achieve their purpose only if they are
131
construed as legally binding. In the words of Sir Gerald Fitzmaurice: "The whole logic of jurisdiction to indicate interim measures
entails that, when indicated, they are binding - for this
jurisdiction is based on the absolute necessity, when the
circumstances call for it, of being able to preserve, and to avoid
prejudice to, the rights of the parties, as determined by the final
judgment of the Court. To indicate special measures for that
purpose, if the measures, when indicated, are not even binding
(let alone enforceable), lacks all point".132
(4) The other authentic languages
4.149 Finally, a look at Art. 41 (1) in the other authentic languages confirms
Germany's submission that Provisional Measures are binding.
Even if one admitted that the English formulation was somewhat
imprecise, the same cannot be said about the texts in the other authentic
languages. The Court's Statute is equally authentic in English, French,
Spanish, Russian, and Chinese. 133The French text reads:
"La Cour a le pouvoir d'indiquer, si elle estime que les
circonstances l'exigent, quelles mesures conservatoires du droit
de chacun doivent être prises à titre provisoire";
the Spanish text:
"La Corte tendrá facultad para indicar, si considera que las
circunstancias así lo exigen, las medidas que deban tomarse
para resguardar los derechos de cada una de las partes."
the Chinese text:
All versions clearly reveal the obligatory character of the measures
concerned. Both the French "devoir" and the Spanish "deber" refer to
binding obligations and are to be translated with "must". 134Similarly,
"indiquer" and "indicar" carry a connotat135 of an obligation which is
even stronger than in the English text.
The word "zhishi" ( ) in the Chinese version of Article 41 appears
both in paragraphs 1 and 2, and can be used equally as a verb and as a noun. This word clearly speaks in favour of the legally binding
character of the Provisional Measures. For purposes of translation, the
word is used not only to reproduce the English term "to indicate" but
also the term "to instruct". Thus in the Chinese language, if a mere
hortatory meaning were to be attributed to the powers of the Court
described in Article 41, a completely different word would have to be
used.
The Russian version of Article 41 (1) employs the verb "ukasat"
which means inter alia "to direct, to order, to prescribe". The
verb is also a direct translation of the English verb "to indicate". The
noun "ukasanije" means "direction" or "instruction".
4.150 Thus, with regard to all authentic languages there are extremely strong
indications that Provisional Measures are meant to possess binding force. Even
if one assumed, arguendo, that the English and Russian texts were open to a
"softer" meaning also and would therefore allow both an imperative and a
permissive reading, the Chinese, French and Spanish versions unambiguously
demand a reading in the sense of binding character of an Order. For such
instances, Art. 33 (4) of the Vienna Convention on the Law of Treaties
provides that in cases of a difference in meaning which the application of the
other means of interpretation does not remove, the meaning which best
reconciles t136texts, having regard to the object and purpose of the treaty, shall
be adopted. Hence, if one language uses a term which embraces both the
term used by the other language and a broader notion, the narrower meaning
will prevail. In principle, however, in case of Art. 41 (1) of the Statute recourse
to Art. 33 (4) of the Vienna Convention on the Law of Treaties is not necessary
because an interpretation according to Art. 31 of the same Convention already
allows the reading of the English text to the effect that Provisional Measures
are binding. But assuming, arguendo, that this was not really clear, any
remaining doubts as to whether the wording might imply the binding character
of Provisional Measures disappear in view of the other authentic texts. The
correct reading is thus the imperative one.
(5) The travaux préparatoires provide evidence in support of the binding
character
4.151 The preparatory work and the circumstances of the adoption of Art. 41
(1) of the Statute may be considered as supplementary means of interpretation,
but only insofar as they
- confirm the meaning resulting from the application of Art. 31 Vienna
Convention on the Law of the Treaties, that is, under the general rule of
interpretation (which has been applied above);
- determine the meaning where an interpretation according to Art. 31
leaves it ambiguous or obscure, or leads to a manifestly absurd or
unreasonable result (Art. 32 Vienna Convention on the Law of
Treaties).4.152 Consequently, recourse to supplementary means cannot overturn a clear
result obtained under the general rule, unless this result is manifestly absurd or
unreasonable. Therefore, recourse to Art. 32 Vienna Convention on the Law of
Treaties is unnecessary as regards the interpretation of Art. 41 (1) of the
Statute because the interpretation pursuant to the general rule has already led to
the unambiguous result that Provisional Measures are legally binding, which is
the only interpretation compatible with the functions and the authority of the
Court. If the supplementary means were nevertheless to be taken into account,
they would also confirm the obligatory character of interim measures. The
French text, as the original version of the provision, clearly establishes an
obligation on States. The English text is merely a translation of the French
137
text. The French version "pouvoir d'indiquer" was originally translated by
"power to suggest". However, later it was assumed that a stronger te138was
necessary and the word "suggest" was substituted by "indicate".
4.153 Moreover, as already explained above, the drafters of the Statute of the
Permanent Court of International Justice followed a diplomatic precedent, that
is, they were inspired by the Bryan Treaties of 1914 and used language "with a
certain diplomatic flavor" without thereby intending to deprive the Court of the
means necessary to fulfil its tasks.
As Judge Weeramantry has observed:
"The drafting history shows that the Court's power goes beyond
mere suggestion or advice, but carries some connotation of
139
obligation."
f) The practice of the Court supports the binding character of Provisional
Measures
4.154 As Judge Weeramantry has pointed out in the Genocide Case "there is
much that is suggestive of the Court's implicit acceptance of the binding nature
of Provisional Measures." 140While the earlier practice of the Court was still
somewhat reluctant in this regard, its more recent practice provides clearer
indications in favour of binding force.
4.155 As to the earlier practice, the Nuclear Tests Cases may serve as an
example. There, the Court recited without comment Australia's arguments that
"in the opinion of the Government of Australia the conduct of the French
Government constitu141 a clear and deliberate breach of the Order of the Court
of 22 June 1973." Even though the position referred to was obviously that of
Australia, the Court's recital of that quotation without any comment can be
considered as evidence of a tacit and indirect endorsement. 142
In the Nicaragua Case, the Court pointed out:
"When the Court finds that the situation requires that measures
of this kind should be taken, it is incumbent on each party to
143
take the Court's indications seriously into account". In the second Order on Provisional Measures issued in the Genocide
Case, the Court first quoted this very statement but then added:
"whereas this is particularly so in such a situation as now exists
in Bosnia-Herzegovina where no reparation could efface the
results of conduct which the Court may rule to have been
contrary to international law." 144
The matter became even clearer in the Lockerbie Cases, where the
Court refrained from indicating Provisional Measures because
"an indication of the measures requested by Libya would be
likely to impair the rights which appear prima facie to be
enjoyed by the United Kingdom by virtue of Security Council
Resolution 748 (1992)". 145
The Court's line of argument can only be explained by attributing
binding force to Provisional Measures. How could Provisional
Measures interfere with rights if they were deemed to lack legal
effect?146
4.156 President Schwebel, in his Declaration to the Court's order in the Breard
Case, pointed to
"the serious difficulties which this Order imposes on the
147
authorities of the United States and Virginia."
This wording, too, is indicative of an obligatory character of
Provisional Measures.
3. The parties to a dispute before the Court have the duty to preserve its
subject-matter
4.157 Apart from having violated its duties under Art. 94 (1) of the United
Nations Charter and Art. 41 (1) of the Statute, the United States has also
violated the obligation to refrain from any action which might interfere with
the subject-matter of a dispute while judicial proceedings are pending. This is a
general obligation of litigant states under customary law which is merely
concretised in the provisions of the Charter and the Statute just mentioned. 148
All States parties to an international dispute sub judice are under an absolute
obligation to abstain from all acts that would nullify the result of the final
judgment or aggravate or extend the dispute. In the words of H. Niemeyer of
more than sixty years ago,
"[f]rom the moment that, and as long as, a dispute is submitted
to judicial decision and one is awaited, the parties to the dispute
are under an obligation to refrain from any act or omission the
specific factual characteristics of which would render the
149
normative decision superfluous or impossible".4.158 This rule exists independently of its incorporation in the Charter and the
Statute. It further confirms our result that both Art. 94 (1) of the United
Nations Charter and Art. 41 (1) of the ICJ Statute can only be interpreted to the
effect that Provisional Measures are binding. The existence of this rule
independently of treaty law was already emphasised by influential
commentators on the Statute of the Permanent Court of International Justice. 150
The Permanent Court of International Justice has pointed out that Art. 41
reflects
"the principle universally accepted by international tribunals...
to the effect that the parties to a case must abstain from any
measure capable of exercising a prejudicial effect in regard to
the execution of the decision to be given and, in general, not
allow any step of any151nd to be taken which might aggravate or
extend the dispute".
As E. Hambro observed:
"The Court in exercising its authority under Art. 41 does only in
effect give life and blood to a rule that already exists in
principle".152
4. The international legal obligations violated by the United States'
conduct with regard to the Court's Order of 3 March 1999
a) The general attitude of the United States vis-à-vis Orders of the Court
4.159 The general attitude of the United States vis-à-vis Orders of the Court
can best be described as selective. On the one hand, the Respondent appears to
admit in general that this Court's Orders as such are capable of imposing
obligations on the parties. On the other hand, however, the United States'
views on how such Orders are to be implemented have differed depending on
the procedural situation in which it found itself in various cases.
4.160 The United States explicitly acknowledged the necessity to comply with
Provisional Measures indicated by the International Court of Justice during the
Hostages Case. Thus, in a situation where the United States itself was
dependent on such measures for an adequate protection of its rights, it did rely
on their binding force.
Since the Court's Order on Provisional Measures of 15 December 1979
in the Hostages Case 153 remained without response by the Iranian
Government, the subsequent action of the United States in the Security
Council was, inter alia, based on the argum154 that Iran had breached
its obligation to comply with that Order. In its draft proposal for a
Security Council Resolution under Chapter VII, the United States
mentioned the Court's Order and proposed the enactment of sanctions
according to Article 39 and 41 of the Charter if the Resolution was to
be adopted (which did not happen be155se of the exercise of the veto
power by a permanent member). Before the Council, Secretary of State Cyrus Vance referred to the Order of the World Court and pointed
out:
"It is not only 50 American men and women who are held
hostage in Iran; it is the international community. ... The time
has come for the world community to act, firmly and
collectively, to uphold international law and to preserve
international peace." 156
And further:
"My Government therefore seeks a resolution which would
condemn Iran's failure to comply with earlier actions of the
Security Council and of the International Court calling for the
immediate release of all the hostages. ... [The resolution] would
decide that if the hostages have not been released when the
Council meets again at the specified early date, the Council will
at that time adopt specific sanctions under Article 41 of the
157
Charter."
As Shank and Quigley put it:
"The use of the terms `remedies' and `compliance' and the
seeking of Security Council action all suggested that t158United
States viewed the interim order as binding on Iran."
4.161 In the Nicaragua Case, the United States submitted that the indication of
Provisional Measures would be inappropriate, arguing that
"[i]n the present situation in Central America, the indication of
such measures could irreparably prejudice the interests of a
number of states and seriously interfere with the negotiations
being conducted pursuant to the Contadora process"
and that
"the other States of Central America have stated their view that
Nicaragua's request for the indication of provisional measures
directly implicates their rights and interests, and that an
indication of such measures would interfere with the Contadora
negotiations." 159
These statements would make no sense if they were not read in the
sense of an implicit recognition of legal effects of Provisional
Measures: only an order which can be the source of rights and
obligations can be deemed to interfere with rights of other states.
4.162 The argument the United States advanced in the Lockerbie Case was
similar: it objected to the indication of Provisional Measures, sustaining that "any indication of provisional measures would run a serious risk
of conflicting with the work of the Security Council". 160
Thus, once again, we find an implicit recognition of the legal
significance of Provisional Measures indicated by the Court.
4.163 The flagrant disrespect for the Court's Order in the Breard Case 161has
162
met harsh criticism world-wide. What is worth noting, however, is how
careful the United States Federal Governme163was not to suggest that
Provisional Measures were not binding. Therefore, we do not think that even
in that case the United States wanted to assert that Provisional Measures lack
legal significance.
In Breard, in the course of the oral proceedings before this Court, the
United States did not challenge the Court's power under Art. 41 of the
Statute. Instead, it argued that under the given circumstances the
adoption of Provisional Measures would be inappropriate. Thus, the
agent for the United States emphasised that "the indication of
provisional measures is a matter of serious164nsequence" and was of
"potentially far-reaching consequences."
What happened subsequently in the course of the "implementation" of
the Order was a combination of insufficient and contravening action on
the part of various actors. As Professor L. Henkin described it,
"[i]f the Order of the Court was mandatory and created treaty
obligations for the United States, it was law for all the parties in
the Breard drama who, in fact or in effect, represented the
United States. Secretary Albright heard the voice of the
International Court and acted upon it. But the Solicitor General
seemed to be under the impression that the Order of the Court
was not addressed to him (or that he was not bound by it). The
Supreme Court was also perhaps under the impression that the
ICJ Order was not addressed to it, that it was not bound by it, or
that it had no responsibility (and no means) to honor it. The
Department of Justice did not take other measures to obtain
compliance by the state of Virginia with the treaty obligation of
the United States to stay the execution. Governor Gilmore
seemed to be under the impression that the International Court
of Justice was not addressing him; perhaps he did not think he
was required to honor Secretary Albright's request." 165
As in the present case, the Governor in charge made no effort to
implement the Order of the Court. On the contrary, he intentionally
refrained from doing so, arguing:
"Should the International Court of Justice resolve this matter in
Paraguay's favor, it would be difficult, having delayed the
execution so that the International Court could consider the case, to then carry out the jury's sentence despite the rulings [of]
the International Court." 166
Thus, the Governor not only refrained from
"tak[ing] all measures ... to ensure that Breard [was] not
executed",
167
as requested by the Court , but acted in such a way as to make the
relief sought by Paraguay impossible. It is a matter of common sense
that such conduct is unacceptable. Besides being illegal, it contradicts
every sense of justice and fairness. The Governor's action is attributable
to the United States, since under international law a federal State is
responsible for actions of its political sub-divisions. 168
Moreover, it was not only the Governor himself who failed to pay due
regard to the Order of this Court. The Federal Government as well
refrained from taking the necessary measures; it acted only half-
heartedly, by simultaneously appealing to the Governor of Virginia to
halt the execution and, on the other hand, in an amicus curiae brief
169
advising the U.S. Supreme Court not to intervene.
4.164 In this amicus curiae brief, both the Department of Justice and the State
Department expressed a preference for the non-binding character of
Provisional Measures referring to the scholarly discussion on this issue. In the
amicus curiae brief as well as in the letter of Secretary of State Albright to the
Governor of Virginia, Gilmore, the focus was on the special features of the
specific Order at stake, concluding that "measures at its disposal" left a broad
discretion to the United States on the action to be taken, to the effect that the
attempt by the Federal Government to persuade the Governor of Virginia
would be sufficient in this regard - a conclusion as untenable in the Breard
Case as in the case at hand. The very fact that the Department of State did take
certain - though entirely inadequate - steps provides evidence that the United
States acknowledged the legal significance of this Court's Order. On the other
hand, the Federal Government misinterpreted both the scope of the obligation
and its addressees. Thus, in her letter to the Governor of Virginia, Secretary of
State Albright wrote, inter alia:
"The International Court, however, was not prepared to decide
the issues we raised in its urgent proceedings last week. Using
non-binding language, the Court said that the United States
should `take all measures at its disposal to ensure that Angel
Francisco Breard is not executed pending the final decision in
these proceedings.'" 170
4.165 In the present Case, less than a year later, the Solicitor General of the
United States took the unequivocal view that the Court's Orders on Provisional
Measures are not binding, irrespective of the wording of a specific Order. 171b) The legal obligations arising from the Order of the Court of 3 March
1999
4.166 The Order on Provisional Measures issued on 3 March 1999 imposed an
unconditional obligation on the United States not to execute Walter LaGrand
pending the final decision of this Court. Even though the precise scope of the
obligations stemming from an Order of the Court may vary from case to case,
and may grant the addressees a more or less broad margin of appreciation, in
our specific case, the Order was worded in clear and unequivocal terms:
"The Court... indicates the following Provisional Measures: (a)
The United States of America should take all measures at its
disposal to ensure that Walter LaGrand is not executed pending
the final decision in these proceedings, and should inform the
Court of all the measures which it has taken in implementation
of this Order, ..."2
Thus, the operative part of the Order contains no ambiguity or
discretion whatsoever: its objective could not be clearer, that is, the
execution of Walter LaGrand was not to take place pending a final
decision. Neither was the scope of the obligation, i.e. that all United
States authorities in charge were to take the necessary steps within their
respective competence to ensure that this objective was achieved. The
discretion left to the United States concerned exclusively the selection
of the instruments of municipal law necessary to reach the result. The
formula "take all measures at its disposal" - far from weakening the
obligation imposed by the Order - embodies a comprehensive duty
directed at all State organs to make sure that Walter LaGrand was not
executed.
4.167 In an earlier paragraph of the same Order, the Court had already
emphasised:
"Whereas the international responsibility of a State is engaged
by the action of the competent organs and authorities acting in
that State, whatever they may be;
whereas the United States should take all measures at its
disposal to ensure that Walter LaGrand is not executed pending
the final decision in these proceedings;
whereas, according to the information available to the Court,
implementation of the measures indicated in the present Order
falls within the jurisdiction of the Governor of Arizona;
whereas the Government of the United States is consequently
under the obligation to transmit the present Order to the said
Governor;
whereas the Governor of Arizona is under the obligation to act
in confo173ty with the international undertakings of the United
States;" Thus, what the Order did was not simply to ask the United States to
take into consideration whether it might be feasible to stay Walter
LaGrand's execution, or that it might be fairer towards Germany to
refrain from measures affecting the subject-matter of the proceedings.
Rather, without leaving any room for doubts or opposing
interpretations, it ordered the United States to take all measures to
ensure that Walter LaGrand was not executed pending a final decision.
Moreover, the Court made it clear that this obligation was not only
incumbent on the Federal Government, but on all organs exercising
public authority relevant in our context. The Order thus cut off any kind
of "federal State excuse" right from the beginning. It emphasised not
only that unlawful acts of all organs of a State, regardless of their status
within national law, can entail the international responsibility of that
State, a point self-evident for every international lawyer, but over and
above that, it determined clearly how and by whom the Order was to be
implemented, that is, by the Governor of Arizona, and stressed that the
latter was obliged to act in conformity with the international
undertakings of the United States. Consequently, it was not only the
Federal Government which was obliged to take all measures to halt the
execution. The Order was directed at the United States as a whole, at all
its organs and authorities, and in particular at the Governor of Arizona.
c) The reaction to the Order on the part of the United States
4.168 In its Order of 3 March 1999, the International Court of Justice indicated
the following provisional measures:
"(a) The United States of America should take all measures at
its disposal to ensure that Walter LaGrand is not executed
pending the final decision in these proceedings, and should
inform the Court of all the measures which it has taken in
implementation of this Order;
(b) The Government of the United States of America should
transmit this Order to the Governor of the State of Arizona." 174
In a letter to the U.S. Supre175Court concerning the Case brought by
Germany on 3 March 1999, the Solicitor General was, this time,
unequivocal in his rejection of the binding character of Orders issued
by the International Court of Justice. Before the Supreme Court, he
argued that
"an order of the International Court of Justice indicating
provisional measures is not binding and does not furnish a basis
for judicial relief ... ."
4.169 In a letter to the International Court of Justice dated 8 March 1999, the
Legal Counselor of the Embassy of the United States at The Hague, Mr. Allen
S. Weiner, informed the Court of the measures taken in implementation of thisOrder. According to this letter, the only step that the U.S. Government had
undertaken was that
"[o]n March 3, 1999, the Department of State transmitted to the
Governor of Arizona a copy of the Court's Order of the same
day."
What is immediately apparent is that this action only refers to the
second of the measures indicated by the Court, e.g. the obligation to
transmit the Order to the Governor of Arizona. At first sight it seems
that the United States did comply with this part of the Order. However,
what the State Department actually did was strictly limited to the purely
technical process of transmitting the text of the Order to the Governor
of Arizona. It undertook nothing at all to support the implementation of
the Order - for instance, by adding a letter requesting the Governor to
give effect to the Order of the Court or other similar steps. Rather, the
State Department refrained from taking any position with regard to the
substance of the matter. Hence, the speaker of the State Department,
Mr. Foley, when asked at a press conference on 3 March 1999 whether
or not the State Department had taken a position other than simply
transmitting the documents, was undoubtedly correct in stating:
"No, we have not. We simply transmitted the documents." 177
4.170 Within the United States legal system, the opinion of the State
Department on questions of international law is of great importance. Thus, in
the view of the U.S. Supreme Court
"[a]lthough not conclusive, the meaning attributed to treaty
provisions by the Government agencies charged with their
negotiation and enforcement is entitled to great weight." 178
Seen in conjunction with the State Department's position in the Breard
Case in 1998, where it qualified a virtually identical Order as "non-
binding" and affirmed a right of the Commonwealth of Virginia to
proceed with the execution notwithstanding an Order of the
179
International Court of Justice, the uncommented transmittal of the
Order in the present Case could be regarded almost as an
encouragement to the Governor of Arizona to go forward and execute
Walter LaGrand. Thus, it is highly disputable whether the "neutral"
attitude assumed by the State Department vis-à-vis the Order of the
Court of 3 March 1999 deserves to be qualified as a measure of
implementation at all, even with regard to the obligation laid down in
lit. (b) of the Provisional Measures.
4.171 On the other hand, it is undisputed that the United States adopted no
measures at all to implement lit. (a) of the Provisional Measures indicated by
the Court. Thus, it engaged in no activities whatsoever to meet its obligation to
take "all measures at its disposal to ensure that Walter LaGrand is
not executed pending the final decision in these proceedings."
On the contrary, it advised the Supreme Court not to intervene in the
case.
If one takes a closer look at the events in the immediate aftermath of
the issuance of the Provisional Measures, one arrives at an even more
negative result: Leaving aside the whole range of political and legal
means at the disposal of the Government of the United States to halt the
execution - not used in the present Case and described elsewhere in the
present Memorial 180-, what the letter of the United States to the
International Court of 8 March 1999 avoided to mention was a number
of active steps, attributable to the United States, which paved the way
for the execution of Walter LaGrand. Thus, instead of implementing
the Order, organs of the United States, quite on the contrary, took
active steps in order to deprive the Order of its object. The assessment
by Professor L. Henkin on the Breard Case,
"[i]ndeed, contrary to the Order of the International Court, `the
United States' took some measur181that helped assure that the
execution would take place",
is even more valid in the case of Walter LaGrand, since here the United
States did not even consider it necessary to formally request the
Governor that she exercise her power to stay the execution, as had been
done a year before by the Secretary of State in the Breard Case.
4.172 Thus, the U.S. Government actively assisted in bringing about the
execution of Walter LaGrand in blatant disregard of the Order of the Court in a
threefold way:
(1) Immediately after the International Court of Justice had rendered its
Order on Provisional Measures, Germany appealed to the U.S.
Supreme Court in order to reach a stay of the execution of Walter
LaGrand, in accordance with the International Court's Order to the
same effect. In the course of these proceedings - and in full knowledge
of the Order of the International Court - the Office of the Solicitor
General, a section of the U.S. Department of Justice - in a letter to the
Supreme Court argued once again 182 that:
"an order of the International Court of Justice indicating
provisional measures183 not binding and does not furnish a basis
for judicial relief."
This statement of a high-ranking official of the Federal Government not
only blatantly disregarded the Order of the Court in itself but also had a
direct influence on the decision of the Supreme Court. A further conclusion to be drawn from the mere existence of the letter
of the Solicitor General of 3 March 1999 is that the allegation in the
U.S. letter to the International Court of Justice of 8 March 1999 to the
effect that
"[i]n view of the extremely late hour of the receipt of the
Court's Order, no further steps were feasible"
is unconvincing, to put it mildly. If the U.S. Department of Justice
found the time to express in writing its views on the legal consequences
arising from the Provisional Measures of the Court, why was it not
feasible for the Department of State to do the same? If one considers
that the Department of State was the first U.S. Government agency
learning of the Order of the Court - and thus in a position to act under
less time pressure than any other U.S. governmental body - it is quite
obvious that the reason for the omission of any positive steps on the
part of the State Department was not that the Department was not able
to act but rather that it was simply not willing to do so.
4.173 (2) In the following, the U.S. Supreme Court - an agency of the United
States - refused by a majority vote to order that the execution be stayed. 184 In
doing so, it rejected the German arguments based essentially on the Order of
the International Court of Justice on Provisional Measures. What deserves
special attention is that, leaving aside the two dissenting Justices, two Justices
of the Supreme Court expressly based their approval of the decision on the
position taken by the Solicitor General in his letter of the same day. These
Justices placed on record that
"In exercising my discretion, I have taken into consideration the
position185 the Solicitor General on behalf of the United
States."
Thus, the decisive influence of the official position of the U.S.
executive branch on the outcome of the Supreme Court proceedings
becomes visible.
Further, in not making use of its discretionary power to stay the
execution of Walter LaGrand, the U.S. Supreme Court, too, disregarded
the Order of the International Court and thus contributed to the breach
of a respective international legal obligation.
4.174 (3) Finally, the Governor of Arizona did not order a stay of the execution
of Walter LaGrand although she was vested with the right to do so by the laws
of the State of Arizona. Moreover, in the present case, the Arizona Executive
Board of Clemency - for the first time in the history of this institution - had
issued a recommendation for a temporary stay, not least in light of the
international legal issues involved in the case. Thus, legally speaking, the
Governor was not subjected to any kind of legal pressure to go forward with
the execution - rather to the contrary. Therefore, it is obvious that the Governor
did not take all measures at her disposal - to use the wording of the Court'sOrder - to meet her legal obligations vis-à-vis the Provisional Measures
indicated by the Court. On the contrary, in full awareness of the Court's Order,
the Governor decided to disregard the Provisional Measures indicated by the
International Court of Justice.
4.175 In summary, the activities of the United States relating to the Court's
Order of 3 March 1999 were manifestly contrary to what the Court had
requested in its legally binding decision. Far from taking all measures at their
disposal to ensure that Walter LaGrand was not executed, U.S. State organs
took several steps that led to exactly the opposite result, i.e. the execution of
Walter LaGrand. Thus, the United States acted in clear violation of the Order
of the Court.
IV. Conclusion
4.176 The United States has breached its obligation to inform German
nationals arrested and detained of the rights under Art. 36 (1) (b) of the Vienna
Convention, in particular their right to notification of the German Consulate.
By not fulfilling the obligation to inform the German Consulate according to
Art. 36 (1) (b), the United States further violated the right of consular access
provided for in Art. 36 (1) (a) and (c) of the Vienna Convention.
Furthermore, the United States has violated Article 36 (2) of the Vienna
Convention by not providing effective remedies against the violation of
the requirements of Art. 36 (1) (b) of the Vienna Convention and by
ultimately executing the LaGrand brothers.
In addition, the United States has violated the individual right granted
to the LaGrand brothers by Art. 36 (1) (b) of the Vienna Convention.
According to the rules of international law on diplomatic protection,
this conduct is in breach of the rights of Germany as the State of which
the LaGrands were nationals.
Finally, by executing Walter LaGrand, the United States violated the
binding Order of this Court of 3 March 1999.
Part Five
Other conditions of the illegality of United States conduct
I. Attribution to the United States of the breaches of international legal
obligations
5.01 It is a fundamental and well-established principle of international law that
every internationally wrongful act of a State entails the international
responsibility of that State. Commenting on Article 1 of its draft on State
responsibility which embodies this very principle, the International Law
Commission (ILC) rightly pointed out that we are here in the presence of "one of the principles most strongly upheld by State practice
and judicial decisions and most deeply rooted in the doctrine of
186
international law."
The first precondition for the rules of State responsibility to come into
operation in a given case is thus the existence of certain "acts of the
State".
5.02 In the present Case, the acts giving rise to the German claims, described
and assessed at length in Part Four of this Memorial, stem from a variety of
governmental bodies within the United States, including in particular the
authorities of the State of Arizona which first failed to advise the LaGrand
brothers about their rights under the Vienna Convention and later declined to
give effect to the Court's Order of 3 March 1999. Furthermore, various United
States courts - both at the state as well as at the federal level - refused to
comply with the obligations laid down in the Vienna Convention and the
Court's Order on provisional measures. Finally, actions and omissions on the
part of the legislative and executive branches of the U.S. Federal Government,
among them certain conduct of the Solicitor General, contributed to the
internationally wrongful acts which are at stake in the present case. All this has
been amply demonstrated above. 187
5.03 As this Court has recently reconfirmed in its Advisory Opinion of 29
April 1999 on the Difference Relating To Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights, it is a well-
established rule of customary international law tha188he conduct of any organ of
a State must be regarded as an act of that State. In so holding, the Court was
able to rely not only on its own established jurisprudence and that of its
predecessor, but also on a great number of other international awards, the more
or less unanimous position in legal doctrine and finally, codification drafts of
189
both private and official nature. With regard to this latter source, the Court
makes an express reference to Article 6 of the draft on State responsibility
adopted by the International Law Commission on first reading in 1996, 190
which provides:
"The conduct of an organ of the State shall be considered as an
act of that State under international law, whether that organ
belongs to the constituent, legislative, executive, judicial or
other power, whether its functions are of an international or
internal character, and whether it holds a superior or a 191
subordinated position in the organization of the State."
Article 7 (1) of the same draft further specifies this very categorical and
comprehensive rule with regard to the responsibility of a federal State
for the conduct of organs of its component units:
"1. The conduct of an organ of a territorial governmental entity
within a State shall also be considered as an act of that State
under international law, provided th192organ was acting in that
capacity in the case in question." The changes made on the 1996 text of these articles in the course of the
second reading of the draft articles which is currently underway 193 are
merely designed to make them
"more user-friendly, more streamlined as well as more precise,
and have freed them from considerable dead weight." 194
No substantive changes whatsoever are intended.
5.04 The commentaries of the International Law Commission with their
extensive analysis of State practice, international jurisprudence and doctrine
leave no doubt that the substance of the draft articles j195 referred to reflects
well-established rules of customary international law.
5.05 This is particularly true for the status of courts, which are to be regarded
as organs of a State just like organs of the legislative or executive branch. With
particular attention to legislative and judicial organs, the careful analysis
undertaken by the International Law Commission in its commentary on [1996]
draft article 6 arrives at the conclusion that in this regard there is no need to
appeal to ideas of progressive development of international law because
"[t]oday the opinion that the respective positions of the different
branches of government are important only in constitutional law
and of no consequence whatsoever in international law, which
regards the State as a single entity, is firmly rooted in
international judicial decisions,196e practice of States and the
literature of international law."
Concerning this point, reference is to be made to the established
jurisprudence of this Court and its predecessor, the Permanent Court of
International Justice, which stated in its Judgment in the Case
concerning Certain German Interests in Polish Upper Silesia:
"From the standpoint of International Law and of the Court
which is its organ, municipal laws ... express the will and
constitute the activities of States, in the same manner as do legal
decisions or administrative measures." 197
This jurisprudence has since been confirmed by both judicial bodies in
198
a whole series of judgments and advisory opinions.
5.06 Likewise, there exists practical unanimity with regard to the principle that
a federal State is internationally responsible for the conduct of the organs of its
component states. More specifically, a consistent series of judicial decisions -
beginning with the Monteijo Award rendered on 26 July 1875 by a U.S.-
Colombian arbitral tribunal - has affirmed that this principle also applies in
situations in which its internal law (allegedly) does not provide the federal
State with the means of compelling the organs of the component units to
conform to the deferral State's international obligations. In the words of the
Umpire in the Monteijo case, Robert Bunch, "it will probably be said that by the constitution of Colombia
the federal power is prohibited from interfering in the domestic
disturbances of the States, and that it can not in justice be made
accountable for acts which it has not the power, under the
fundamental charter of the republic, to prevent or to punish. To
this the undersigned will remark that in such a case a treaty is
superior to the constitution, which latter must give way. The
legislation of the republic must be adapted to a treaty, not the
treaty to the laws ... It may seem at first sight unfair to make the
federal power .... responsible ... for events over which they have
no control ... but the injustice disappears when this
inconvenience is found to be inseparable from the federal
system. If a nation deliberately adopts that form of
administering its public affairs, it does so with the full
knowledge of the consequences it entails. It calculates the
advantages and the drawbacks, and can not comp199n if the
latter now and then make themselves felt."
The principle thus forcefully stated in the Monteijo Award has been
reaffirmed in many decisions since 200and the essence of the
argumentation put forward by the Umpire in this early case still holds
true after almost 125 years.
5.07 Summing up, there exists hardly any other rule of international law which
is so undisputed as the rule that the position of an organ of the State in the
organisation of that State does not enter into consideration for the purpose of
attributing the organ's conduct to the State - that is to sa201of regarding such
conduct as an "act of the State" under international law. Therefore, whatever
organ has acted or failed to act in the present case in breach of the international
legal obligations of the United States, such acts and omissions are all
attributable to the United States and thus give rise to the international
responsibility of the United States.
II. Irrelevance of the domestic law of the United States
5.08 The legal rule governing the relationship between the international legal
obligations of a State and its municipal law in the context of the law of State
responsibility is clear and simple: Whenever a State is in breach of its
international legal obligations, it can under no circumstances invoke its internal
law in order to justify such non-compliance.
Despite the difference of positions taken in the theoretical controversy
about the relationship between municipal law and international law in
general, there exists virtually an identity of views on this particular
aspect. Such unanimous opinion has been expressed by Professor I.
Brownlie in exemplary terms:
"The law in this respect is well settled. A state cannot plead
provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations
under international law." 202
The fundamental character of this principle and the comprehensive
scope of its field of application was already emphasised more than 40
years ago by Sir Gerald Fitzmaurice:
"The principle that a State cannot plead the provisions (or
deficiencies) of .... its constitution as a ground for the non-
observance of its international obligations ... [This] is indeed
one of the great principles of international law, informing the
203
whole system and applying to every branch of it."
This issue was commented upon in Oppenheim's International Law as
follows:
"[I]f a state's internal law is such as to prevent it from fulfilling
its international obligations, that failure is a matter for which it
will be held responsible in international law. It is firmly
established that a state when charged with a breach of its
international obligations cannot in international law validly
plead as a defence that it was unable to fulfil them because its
internal law was defective or contained rules in conflict with
international law; this applies equally to a state's assertion of its
inability to secure the necessary changes in its law by virtue of
some legal or constitutional requirement which in the
circumstances cannot be met or severe or political difficulties
which would be caused. The obligation is the obligation of the
state, and the failure of an organ of the state, such as a
Parliament or a court, to give effect to the international
obligations of the state cannot be invoked by it as a204stification
for failure to meet its international obligations."
Finally, the Restatement of the Foreign Relations Law of the United
States confirms that
"[a] state cannot adduce its constitution or its laws as a defense
for failure to carry out its international obligation". 205
5.09 The legal rules thus described are de206y rooted in international practice.
Starting with the Alabama arbitration, international judicial bodies, among
them the International Court of Justice and its predecessor, the Permanent
Court of International Justice, have established a consistent jurisprudence on
this point.207For example, in the Free Zones case the Permanent Court of
International Justice observed:
"[I]t is certain that France cannot rely on her own legislation to
limit the scope of her international legal obligations ... ." 208 The Permanent Court left no doubt that the same principle applies when
constitutional provisions are at stake. Thus, in its 1932 Advisory
Opinion in the case concerning Polish Nationals in Danzig the Court
held:
"It should ... be observed that ... a State cannot adduce as
against another State its own Constitution with a view to
evading obligations i209mbent upon it under international law
or treaties in force."
Up to the present day, this jurisprudence has undergone no
modifications whatsoever; rather on t210contrary, it has been
consistently reaffirmed ever since.
5.10 As an emanation of the elementary and universally agreed maxim of
pacta sunt servanda - rightly described by the International Law Commission
as
"the fundamental principle of the law of treaties", 211
our principle has also been included in the Vienna Convention on the
Law of Treaties. Article 27 (1) of this Convention reads as follows:
"A State party to a treaty may not invoke the provisions of its
internal law as justification for its failure to perform the treaty."
This provision does not embody an innovative concept but restates a
rule deeply rooted in general principles of international law, universally
recognised at the time of the drafting of the Convention. 212 Thus, the
fact that the United States has not yet ratified the Vienna Convention
on the Law of Treaties cannot release the Respondent from the duty to
observe the substance of this provision. In this respect the Restatement
of the Foreign Relations Law of the United States rightly points out that
"[w]hen international law is not given effect in the United States
because of constitutional limitations or supervening domestic
law, the international obligations of the United States remain
and the United States may be in default." 213
5.11 In view of such overwhelming evidence of the existence of a respective
rule in customary international law, it is not surprising that the International
Law Commission included the principle in Article 4 of its draft on State
responsibility, which provides:
"An act of a State may only be characterized as internationally
wrongful by international law. Such characterization cannot be
affected by the characterization of the same act as lawful by
internal law." 214 After having provided a comprehensive analysis of the entire range of
practice, jurisprudence and doctrine, the Commentary of the
Commission on this article could only conclude:
"Judicial decisions, State practice and the works of writers on
international law leave not the slightest doubt on that
subject." 215
Thus, the domestic law of the United States and its application in the
present case by certain organs both at the federal and state level, in
particular the doctrine of procedural default, or certain restraints which
the U.S. federal system allegedly imposes on the capacity of the United
States to act in conformity with its international legal obligations, do
not constitute circumstances precluding the wrongfulness under
international law of the conduct of the United States described in detail
in Part Four of the present Memorial.
III. No necessity of fault on the part of the organs of the United States
5.12 A further question to be considered at this point is whether the
responsibility of the United States for the breaches of international law set out
earlier is conditional upon the presence of a subjective element, i.e., fault on
the part of the State organs involved. This subjective element would range
from malicious intent (dolus) to culpable negligence. While certain authors still
defend this theory, particularly for the case of violations of international law
taking the form of omissions, it is definitely on the retreat. The dominant view
today adopts a theory of objective responsibility, under which any action or
omission which produces a result that is a breach of a legal obligation gives
rise to responsibility irrespective of any considerations about the mental or
psychological side of things. 216
5.13 As is well known, the International Law Commission in its project on
State responsibility bases itself on such an objective approach. The only
elements of an internationally wrongful act which the Commission recognises
in its draft article 317are (1) that a certain conduct of a State consisting of an
action or omission is attributable to that State under international law, and (2)
that such conduct constitutes a(n objective) breach of an international
obligation of the State. In choosing this approach, the ILC does not exclude
that in certain specific instances an additional subjective element might be
required in order to "complete" the preconditions of international
responsibility. However, for the Commission, the question of when
responsibility presupposes fault, such as inadvertence or negligence, on the
part of organs of the State is to be answered through the interpretation of, the
primary rules breached. According to what nowadays is probably the leading
view, performance of the primary rules in question will be subjected to a
standard of due diligence, which "objectivises", as it were, the subjective
element of fault. 218
5.14 In the context of the present case, the issue of objective versus subjective
responsibility is obviously relevant but does not pose any problems for the caseof Germany. If the Court followed the approach chosen by the International
Law Commission, it would determine the presence of the two objective
elements of an internationally wrongful acts - breach and attribution - in the
conduct of the United States, and that would be the end of the matter. If,
additionally, the Court decided to inquire whether the breach of Art. 36 (1) of
the Consular Convention by way of omission was due to negligence, or a lack
of due diligence, on the part of the organs of the State of Arizona, the result
would undoubtedly be affirmative.
Particularly in the light of the admission during the proceedings before
the Executive Board of Clemency of the State of Arizona on 23
February 1999 by State Attorney Peasley that the authorities of the
State of Arizona had been aware since 1982, that is, from the outset,
that Karl and Walter LaGrand were German nationals, there can be no
question that such conduct did not meet any imaginable standard of due
diligence in the application of Art. 36 (1) of the Vienna Convention. It
appears that the Arizona authorities simply did not care about their
respective international obligations. Thus, we are in presence of gross
negligence, to put it mildly.
As already emphasised earlier, it was the emergence of these shocking
facts that made Germany decide to change its course from pursuing the
avenue of moral and political appeals for mercy to bringing this case
before the world's highest Jurisdiction.
5.15 As to the later conduct of U.S. executive authorities and courts, both at
the Federal and State level, leading to the breach of Art. 36 (2) of the Vienna
Convention and the non-abidance with the International Court's Order on
Provisional Measures, there can be no doubt that all U.S. State organs engaged
in the case were fully aware that what they did or did not do involved issues of
international law, indeed international legal obligations upon the United States.
If they happened to commit errors regarding the law, this provides no
justification or excuse.219If they committed the breaches in cognisance of the
illegality of their acts, the situation is even more serious.
IV. Exhaustion of local remedies
5.16 The application of the rule according to which the exercise of diplomatic
protection by a State presupposes that the national concerned has exhausted all
legal remedies available to him or her in the State which is alleged to be the
author of the injury, has no place in instances of direct injury to a State.220
Therefore, this rule does not apply to the breaches of international law by the
United States committed directly vis-à-vis Germany, as described in Part Two
Chapters I and III of the present Memorial.
5.17 The local remedies rule, a "well-known principle", as J. Crawford calls it
in his second report on State responsibility, 221is generally accepted 222and has
also been embodied in the draft of the International Law Commission. 223 The individual rights of Karl and Walter LaGrand violated by the
United States and vindicated before this Court by Germany by way of
diplomatic protection, have been exposed at length in Chapter II of Part
Four of the present Memorial. It is obvious that both Karl and Walter
LaGrand exhausted all remedies at their disposal within the judicial
system of the United States, even including proceedings before the
Executive Board of Cleme224 of the State of Arizona just shortly
before their execution. Hence, there is no need in the present case to
further examine the exact scope of the local remedies rule and the
various conditions applying to it.
In sum, in the present case, the local remedies rule does not constitute a
bar to the invocation of the responsibility of United States in the
present case.
V. Conclusion
5.18 All (further) prerequisites of the international responsibility of the United
States exist in the present case:
The acts which led to the breach of the international obligations at stake
are all attributable to the United States.
Precepts and doctrines of the domestic law of the United States as
applied by its competent authorities in the case of the LaGrands may
not be invoked as circumstances precluding the wrongfulness of the
breaches committed.
Further, whether one follows an objective or a subjective theory of
State responsibility (with regard to the element of intent or negligence),
the responsibility of the United States in the present case is
unquestionable.
Finally, to the extent necessary within the present context, the local
remedies available to the LaGrand brothers were all exhausted.
Part Six
Consequences of the internationally wrongful acts of the United States
6.01 Germany's Memorial now turns to the question of the remedies which it
requests from the United States. Since the LaGrand brothers have both been
executed, their fate cannot be corrected. The Respondent being a close friend
and ally of Germany, the only objective which Germany pursues in referring
this case to the International Court of Justice is to secure that in the future
German nationals will not be arrested and detained without being informed of
their right to receive consular assistance. For this reason, Germany will not
pursue further any remedies which would go beyond this objective. For the
same reason, what Germany does request of the Court is that it pronounce the
failure of the United States to abide by its respective commitments underinternational law, and the duty of the United States to provide Germany with
guarantees that it will not repeat such illegal conduct in the future.
6.02 In the following, Germany will set out its claims in detail. First, it will
address preliminary issues such as the applicability of the general rules of State
responsibility. In addition, it will specify the two remedies it is seeking,
namely:
(1) the pronouncement of the wrongfulness of the United States
conduct in the present case;
(2) a guarantee that the United States will not repeat its illegal acts and
ensure the respect of its obligations towards Germany in the future.
Second, Germany will show that it has been injured by the conduct of
the United States and that therefore it has the right to invoke the
international responsibility of the Respondent. Third, Germany will
demonstrate that the prerequisites for the remedies it seeks are present.
Finally, Germany will argue that no circumstances exist which would
prevent or alleviate the duty of the United States to provide satisfaction
and guarantee the non-repetition of its illegal conduct.
I. Preliminary issues
6.03 Under this heading, Germany will argue for the applicability of the rules
of general international law on State responsibility, as embodied in the
International Law Commission's draft articles, to the present case. Further, it
will explain the modifications of its original claims against the United States.
1. Applicability of the general rules of State responsibility
6.04 First, Germany will argue that the general régime of State responsibility
applies to the present Case. It is led to do so because in the Breard Case, 225
Counsel for the Respondent raised doubts regarding whether violations of the
law on diplomatic and consular relations entail the same legal consequences as
violations of other rules of international law, namely the duty to repair the
damage. Counsel argued that the Vienna Convention of 1963 somehow
excluded the application of the general remedies of State responsibility.
6.05 Such a view is based on a profound misunderstanding of the jurisprudence
of the International Court of Justice. The question of remedies for violations of
Art. 36 of the Vienna Convention is governed by the customary international
law on State responsibility because, first, these rules are applicable even if this
is not expressly foreseen in the treaty whose violation gave rise to the case,
and, second, the Vienna Convention does not constitute a self-contained
régime, that is, it does not embody a special régime of consequences and
enforcement mechanisms in case of its violation, to the exclusion of the
general rules.6.06 With regard to the first point, Germany submits that the general rules of
State responsibility are applicable to all kinds of internationally wrongful acts
unless expressly stipulated otherwise. This derives from the very nature of the
rules on State responsibility as "secondary rules" which are to be applied
whenever "primary" obligations have not been observed. Therefore, the
circumstance that Art. 36 of the Vienna Convention does not explicitly
mention a remedy in case of its violation is not a valid argument against the
applicability of the general régime of State responsibility. To state otherwise
would mean that it would be necessary for each and every treaty or convention
to reiterate the rules on State responsibility. In the Hostages Case, the Unites
States was quite correct in arguing that
"[t]he Court's jurisprudence establishes that `the breach of an
engagement involves an obligation to make reparation in an
adequate form. Reparation therefore is the indispensable
complement of a failure to apply a convention and there is no
necessity for this to be stated in the convention itself.' (Factory
at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series
A, No. 9, p. 21; see also Reparation for Injuries Suffered in the
Service of the United Nations, Advisory Opinion, I.C.J. Reports
1949, p. 174, at p. 184.) Indeed, in the Corfu Channel case
(Merits, Judgment, I.C.J. Reports 1949, p. 4 at pp. 23-24), this
Court stated that it follows from the establishment of the
responsibility of a State for the breach o226n international
obligation `that compensation is due.'"
The ILC Draft on State responsibility (on whose authoritative character
see infra227) maintains the same fundamental principle in its very first
article:
"Every internationally wrongful act of a State entails the
international responsibility of that State. "228
Art. 17 of the same Draft further specifies:
"An act of a State which constitutes a breach of an international
obligation is an internationally wrongful act regardless of the
origin, whether customary, conventional or other, of that
229
obligation."
6.07 This position is also in line with the dominant view in U.S. doctrine.
Thus, according to the Restatement of the Foreign Relations Law of the United
States,
"[a] state whose national has suffered injury ... has, as against
the state responsible for the injury, the remedies generally
available between states for violation of customary law ... as
well as any special remedies provided by any international
230
agreement applicable between the two states."6.08 The applicability of the general rules of State responsibility to the Vienna
Convention on Consular Relations was also implied in the process of drafting
the 1963 Vienna Convention by the International Law Commission. The
Commission apparently considered this to be so clearly established that it did
not have to be mentioned in the text of the Convention. According to the
Summary Records of the Commission, Grigory Tunkin remarked:
"If the law of the receiving State concerning the matter under
discussion conflicted with international law, that State's
international responsibility might well be engaged, he thought,
however, that that problem exceeded the scope of the
Commission's draft." 231
Therefore, the rules of State responsibility apply to the present case just
as they would to any other violation of any other rule of international
law.
6.09 Second, one might possibly argue that the general régime of State
responsibility is not applicable to treaties or conventions which are truly and
fully self-contained - provided that such treaties or conventions exist at all (the
European Union Treaty possibly being a case in point). However that may be,
the Vienna Convention on Consular Relations, and particularly its Art. 36,
does certainly not constitute such a self-contained régime.
6.10 Germany's argument is fully in line with the Judgment of the Court in the
Hostages Case. In that Case, the Court described the remedies available under
diplomatic law to deal with abuses of the diplomatic function, n232ly the
expulsion of diplomats by declaring them persona non grata or the
breaking-off of diplomatic relations altogether 233. The Court went on to say:
"The rules of diplomatic law, in short, constitute a self-
contained régime which, on the one hand, lays down the
receiving State's obligations regarding the facilities, privileges
and immunities to be accorded to diplomatic missions and, on
the other, foresees their possible abuse by members of the
mission and specifies the means at the disposal of the receiving
234
State to counter any such abuse."
In the following, the Court stated that Iran had not had recourse to such
remedies provided by the Convention itself but had instead resorted to
illegal coercive action against the United States Embassy.
6.11 The first observation to be made about this dictum is that it refers to the
abuse of diplomatic and consular rights and immunities, and not to the
legitimate use of rights accorded by Art. 36 (1) of the Vienna Convention on
Consular Relations to foreign nationals. Regarding illicit activities by members
of diplomatic or consular missions, the Court explained, "diplomatic law itself provides the necessary means of defence
against, and sanction for, illicit activities by members of
diplomatic or consular missions." 235
However, what is at issue in the present Case are not "illicit activities
by members of diplomatic or consular missions" but rather the
safeguarding of the rights accorded by Art. 36 of the Vienna
Convention to individual foreigners and the sending State. In the event
of violations of these rights, the Convention does not provide any
specific remedies of its own but remains coupled with, and relies on,
the rules of general international law on State responsibility.
6.12 Even with regard to the rights accorded to diplomats, the Court qualifies
its earlier statement as follows:
"Naturally, the observance of this principle does not mean - and
this the Applicant Government expressly acknowledges - that a
diplomatic agent caught in the act of committing an assault or
other offence may not, on occasion, be briefly arrested by the
police of the receiving State in order to prevent the commission
236
of the particular crime."
Thus, the Court recognised that the "self-contained" nature of the 1961
and 1963 Vienna Conventions is limited even as far as remedies against
violations by diplomats or consuls are concerned. For the reasons stated
here, this must be even more so concerning rights provided by the
Convention unrelated to the privileges and obligations of foreign
diplomats and consuls, such as Art. 36 of the 1963 Convention.
6.13 What the Court intended in the Hostages Case was the strengthening of
international law, not its weakening by facilitating the disregard of treaty
provisions through the absence of sanctions. Nowhere in the Judgment does
the Court exclude a demand for reparation of violations of diplomatic law.
Exactly the opposite: The Court decided that the Republic of Iran was
"under an obligation to make reparation to the Government of
237
the United States America for the injury caused to the latter".
In the reasoning of the Court, the direct link between violations of
consular and diplomatic law and international responsibility becomes
even clearer:
"[T]he Court finds that Iran, by committing successive and
continuing breaches of the obligations laid upon it by the
Vienna Conventions of 1961 and 1963 on Diplomatic and
Consular Relations ... has incurred responsibility towards the
United States. As to the consequences of this finding, it clearly
entails an obligation on the part of the Iranian State to make 238
reparation for the injury thereby caused to the United States." Germany in no way wishes to compare the Iranian behaviour in the
hostage crisis with that of the United States towards the LaGrand
brothers. However, the legal rationale of the passage of the Judgment
just quoted is eminently applicable to our present case. The Hostages
Case dealt with a flagrant breach of fundamental rules of diplomatic
and consular law disguised as countermeasures, a disguise which the
Court could not, and did not, accept. The present Case concerns a
legitimate demand for correct and comprehensive fulfilment by the
United States of its obligations under Art. 36 of the Vienna Convention
on Consular Relations. It cannot have been the intention of the framers
of the Convention to deprive this treaty of the protection accorded by
the general rules of State responsibility. Thus, the Hostages Case, and
the remedies granted to the United States by the respective Judgment of
this Court, confirm rather than contradict Germany's demand for
reparation for the violation of the Vienna Convention.
6.14 In the context of both the Breard litigation and the present Case, instead
of applying these universally recognised principles, the United States seems to
maintain that if a treaty does not expressly provide for it, no reparation is due
in case of its breach.239Such a view turns the concept of "self-contained
régimes" - denoting treaty instruments comprising their own, custom-made set
of rules on responsibility - on its head, allowing the violation of international
law free of cost. It would deprive most international obligations of any remedy
and would leave the largest part of international law helpless in cases of
breach. As President Schwebel has recently stated in his Declaration appended
to the unanimous Order of the Court demanding a stay of execution of a
national of Paraguay:
"It is of obvious importance to the maintenance and
development of a rule of law among States that the obligations
imposed by treaties be complie240ith and that, where they are
not, reparation be required."
2. The ILC draft articles as expression of the applicable law
6.15 As to the applicable law, Germany considers the International Law
Commission's draft articles on State responsibility as the most authoritative
statement of customary international law on the matter. 241This is in line with
the recent jurisprudence of the Court. In its Judgment in the Case concerning
the Gabcíkovo-Nagymaros Project, the Court applied242e draft article on state
of necessity as an expression of customary law and later also referred to the
draft provisions on countermeasures. 243 In its Advisory Opinion on the
Difference Relating to Immunity from Legal Processes of a Special Rapporteur
of the Commission on Human Rights of 29 April 1999, the Court applied draft
article 6 244itled "Irrelevance of the posit245 of the organ in the organization of
the State" as reflecting customary law.
As President Schwebel recently explained in an address to the
International Law Commission: "There were indeed instances in which the Commission had
produced draft conventions later adopted by a diplomatic
conference - or even draft conventions not yet so adopted - on
which the Court had thereafter repeatedly relied in its
Judgments. The most notable example was the draft convention
on State responsibility. ... On more than one occasion the Court
had recognized those draft articles as an authoritative statement
246
of the law, sometimes even citing the commentaries thereto."
6.16 Specifically regarding remedies, the International Tribunal for the Law of
the Sea, in its Judgment in The M/V "Saiga" (No. 2) Case, referred to the draft
articles and stated that
"[r]eparation may be in the form of `restitution in kind,
compensation, satisfaction and assurances and guarantees of
non-repetition either singly or in combination' (article 42,
paragraph 1, of the Draft Articles of the 247ernational Law
Commission on State Responsibility)."
Although the draft articles on State responsibility may not reflect
existing law in each and every detail, they constitute the most complete
body of rules of the matter, elaborated with the broadest participation
of the international community to date. In its comments of October
1997, the United States has been rather critical of the 1996 draft as a
whole. 248 With regard to the provisions on reparation, however, the
United States took the view t249 they were not too strict but, on the
contrary, not strict enough. However this may be with regard to
detail, in the opinion of Germany the ILC draft articles on reparation do
appear to furnish a basis for legal argumentation that should be
acceptable to both parties in the present Case. As a matter of course, in
relying on these provisions, Germany will provide supplementary 250
evidence of customary international law on the issues involved.
3. The international responsibility of the United States and Germany's
original claims
6.17 The internationally wrongful acts of the United States of America entail
its international responsibility towards Germany. As the Permanent Court of
International Justice has explained:
"This act being attributable to the State and described as
contrary to the treaty right of another State, international
responsibility would be established immediately as between the
two States." 251
252
The same view was taken in the ILC's first draft article already cited.
6.18 As a consequence of the breaches by the United States of its obligations
under the Vienna Convention on Consular Relations and from a binding Order
of the Court, it is incumbent on the United States to provide full reparation.That reparation constitutes the consequence of any internationally wrongful act
was affirmed by the Permanent Court of International Justice in its
pronouncement in the Factory at Chorzów Case:
"It is a principle of international law that the breach of an
engagement involves an obligation to make reparation in an
adequate form. Reparation therefore is the indispensable
complement of a failure to apply a convention and there is no
necessity for this to be stated in the convention itself." 253
In a later stage of the same case, the Permanent Court used the
following classic formula in order to clarify that the appropriate
juridical remedy for a breach of international law is the wiping out of
all of its consequences:
"The essential principle contained in the actual notion of an
illegal act - a principle which seems to be established by
international practice and in particular by the decisions of
arbitral tribunals - is that reparation must, as far as possible,
wipe out all the consequences of the illegal act and reestablish
the situation which would, in all probability, have existed if that
act had not been committed. Restitution in kind, or, if this is not
possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of damages
for loss sustained which would not be covered by restitution in
kind or payment in place of it - such are the principles which
should serve to determine the amount of 254pensation due for
an act contrary to international law."
This phrase is still regarded as an expression of customary international
law on the matter, as evidenced, in the first place, by the jurisprudence
255
of the present Court.
6.19 According to these principles, Germany would be entitled to restitutio in
integrum, that is, to the re-establishment of the situation that existed before the
detention of, proceedings against, and conviction and sentencing of Walter
LaGrand, just as Germany requested in Paragraph 15 of its Application of 2
March 1999. In the following brief remarks, Germany will explain why it
originally asked for such restitution even though it will not further pursue its
respective claim.
6.20 The remedy of revocation of a national judgment in breach of
international law is not at all alien to State responsibility. First, domestic court
decisions constitute acts of the State just as acts emanating from the executive
or legislative branches of government. As explained above, under the law of
State responsibility, a State is responsible for all acts which are attributable to
its organs. Second, judicial acts of States are subjected to the same régime of
State responsibility as all other acts of States. In its Commentary to the draft
articles on State responsibility the ILC states that "[h]ypotheses of juridical restitution include the revocation,
annulment or amendment of a constitutional or legislative
provision enacted in violation of a rule of international law, the
rescinding of an administrative or judicial measure unlawfully
adopted in respect of the person or the property of a foreigner
or the nullification of a treaty."
6.21 This is in line with the general position of the draft articles to treat all acts
of States alike, whatever their nature and irrespective of the branch of
government from which they emanate. Third, a claim for annulment of a
judgment of a domestic court would also be supported by international
practice. For instance, in the Martini Case, an arbitral tribunal decided that the
Venezuelan Government was under an obligation to annul the judgment of a
2
domestic court in violation of treaty obligations owed to Italy. Further
examples are to be seen in Articles 302 (3) and 305 of the Peace Treaty of
Versailles of 28 June 1919, which provided for restitutio in integrum in the
case of judgments of German courts retrospectively considered illegal. In 3
various other instances, States have concluded treaties establishing
international tribunals in which they explicitly excluded reparation in the form
of annulment of judicial decisions if such annulment was to cause
complications within the national legal order. In the words of the International
Law Commission:
"The fact that States deem it necessary to agree expressly in
order to prevent restitution measures from gravely affecting
fundamental principles of municipal law seems to indicate that
they believe that at the level of general international law a
correct discharge of the author State's obligation must prevail
4
over legal obstacles."
6.22 But even if one considered international practice accepting restitutio in
integrum in case of decisions of domestic courts as being somewhat
inconclusive, the existence of a rule to the opposite, i.e., of a rule
unequivocally excluding this remedy in case of national judicial decisions,
could not be maintained either. If this is so, however, there is no escaping the
application of the general rule which demands the wiping out of all the
consequences of an internationally wrongful act. The teachings of publicists
confirm this view. For instance, Professor Brownlie states that
"[t]o achieve the object of reparation, tribunals may give `legal
restitution' in the form of a declaration that an offending treaty,
or the relevant act of the executive, legislative or judicial
organs of the respondent State is a nullity in international
5
law."
And the Restatement of the Foreign Relations Law of the United States
asserts that
"[t]he obligation of a state to terminate a violation of
international law may include discontinuance, revocation or cancellation of the act (whether legislative, administrative or
judicial) that caused the violation."6
Even authors reluctant to state that international law demands a
declaration of nullity of domestic judgments in violation of
international law maintain that the author State must endeavour to
remove the material consequences arising out of the wrongful act by all
means at its disposal and must prevent further damage, for instance by
7
granting clemency.
6.23 Whatever the state of the law may be in this regard, by the non-
observance of the binding Order of the Court of 3 March 1999 the United
States has made the return to the status quo ante impossible. The execution of
a death sentence being irreversible, Walter LaGrand cannot stand for a new
trial or a new sentencing hearing uninfected by the lack of consular advice.
Therefore, Germany's submission aiming at the restoration of the status quo
ante in the case of Walter La Grand is moot. On the other hand, it is the duty of
the United States, and of the United States alone, to bear the consequences of
such impossibility of restitutio. If and to the extent that Germany cannot
provide pieces of evidence on the impact of the violation of Art. 36 of the
Vienna Convention on the trial of the LaGrands, which could have been
submitted if the brothers were still alive and able to testify on this matter, it is
the United States which is required to bear the burden of proof. 8
6.24 Turning from restitutio in integrum to reparation in the form of
compensation,
"[i]t is a well-established rule of international law that an
injured State is entitled to obtain compensation from the State
which has committed an internationally wrongful act for the
damage caused by it" . 9
Nevertheless, Germany does not wish to pursue its right to financial
compensation, because its intention in lodging the present proceedings
is to ensure that German nationals will be provided with adequate
consular assistance in the future, and not to receive material reparation.
Nothing stands in the way of such a decision on the part of the injured
State. To refer to a recent precedent, in the Case concerning the
Rainbow Warrior Affair between New Zealand and France the Arbitral
Tribunal held as follows:
"The Tribunal ... considers that an order for the payment of
monetary compensation can be made in respect of the breach of
international obligations ... .
New Zealand has not however requested the award of monetary
compensation ... . The Tribunal can understand that position in
terms of an assessment made by a State of its dignity and its
10
sovereign rights."6.25 All Germany requests is that the Respondent in the future respects the
direct treaty rights of Germany as well as the rights of its nationals to consular
advice. Thus, Germany now limits its claims - and correspondingly its
submissions - to requests for the pronouncement of the illegality and for
assurances of non-repetition of such conduct in the future, and does not wish to
pursue further its claims to financial compensation and an apology.
6.26 More specifically, Germany now requests the Court to pronounce (1) that
the United States violated its international legal obligations to Germany, in its
own right and in its right of diplomatic protection of its nationals; and (2) that
the United States shall provide Germany a guarantee that it will not repeat its
illegal acts.
In the following, Germany will specify these claims in necessary detail
and will demonstrate that they are borne out both by the facts of the
case and the applicable international law.
II. Injury and its independence from domestic "prejudice"
6.27 Germany is entitled to invoke the responsibility of the United States
because it is an injured State.
6.28 Contrary to the contention of the United States during the oral
proceedings on Provisional Measures in the Breard Case , international law
does not require a showing of damage before the offending State's international
responsibility is engaged. Since any breach of international law entails either
material or non-material damage to another State, damage does not constitute
an independent element of an internationally wrongful act. As the International
Court of Justice explained in the South West Africa Cases:
"[I]t may be said that a legal right or interest need not
necessarily relate to anything material or `tangible', and can be
infringed even though no prejudice of a material kind has been
suffered. ... The Court simply holds that such rights or interests,
in order to exist, must be clearly vested in those who claim
them, by some text or instrument, or rule of law; ... ." 13
The same principle is expressed in ILC draft article 3, which
enumerates only the following two requirements of an internationally
wrongful act:
"There is an internationally wrongful act of a State when:
(a) conduct consisting of an action or omission is attributable to
the State under international law; and
(b) that conduct constitutes a breach of an international
obligation of the State." 14
As the Commentary to this article explains: "[I]f we maintain at all costs that `damage' is an element in any
internationally wrongful act, we are forced to the conclusion
that any breach of an international obligation towards another
State involves some kind of `injury' to that other State. But this
is tantamount to saying that the `damage' which is inherent in
any internationally wrongful act is the damage which is at the
same time inherent in any breach of an international
obligation." 15
In the Case of the Affaires des Biens britanniques au Maroc espagnol,
the Arbitral Tribunal coined the following classic formula:
"La responsabilité est le corollaire nécessaire du droit. Tous
droits d'ordre international ont pour conséquence une
responsabilité internationale. La responsabilité entraîne comme
conséquence l'obligation d'accorder une réparation au cas où
l'obligation n'aurait pas été remplie." 16
17 18
An analysis of international jurisprudence and doctrine confirms
this view. Thus, as opposed to the situation in domestic law, the
question of damage and/or "prejudice", strictly speaking, only concerns
the prerequisites of certain remedies and not international responsibility
as such.
6.29 Nevertheless, Germany has demonstrated, and will do so once more, that
even if, arguendo, one did not follow the overwhelming precedents in the
sense that it is unnecessary to show "prejudice" in order to invoke State
responsibility, such "prejudice" has undoubtedly been caused to the LaGrand
brothers by the failure of the U.S. authorities to advise them about their rights
under the Vienna Convention on Consular Relations.
1. Injury to Germany
6.30 In the words of the Commentary of the ILC to its draft article 40,
"it is necessary to determine which State or States are legally
considered `injured' State or States, because only that State is,
or those States are, entitled to invoke the new legal relationship
19
... entailed by the internationally wrongful act."
In its parts relevant for the present Case, draft article 40 reads as
follows:
"1. For the purposes of the present articles, `injured State'
means any State a right of which is infringed by the act of
another State, if that act constitutes, in accordance with Part
One, an internationally wrongful act of that State.
2. In particular, `injured State' means:
(a) ... (b) ...
(c) if the right infringed by the act of a State arises from a
binding decision of an international organ other than an
international court or tribunal, the State or States which, in
accordance with the constituent instrument of the international
organization concerned, are entitled to the benefit of that right;
(d) ...
(e) if the right infringed by the act of a State arises from a
multilateral treaty ..., any other State party to the multilateral
treaty ... , if it is established that:
(i) the right has been created or is established in its favour;
(ii) ...20
(f) ... ."
Accordingly, the main requirement for the presence of "injury" is that a
right of the affected State has to be infringed. In the present Case, the
injury to Germany has to be analysed separately with regard to each of
the three layers of obligations breached by the United States (as set out
in Part Four of the present Memorial).
a) Direct injury by violations of the treaty obligations of the United States
towards Germany under Article 36 of the Vienna Convention
6.31 Through its non-observance of Art. 36 of the Vienna Convention in the
case of the brothers LaGrand, the United States has violated a right created in
favour of Germany, and thereby infringed a right of Germany in terms of draft
art. 40 (1) and 2 (e) (i).
The violation of the Vienna Convention by the United States deprived
Germany of its right to protect and assist its nationals in the gravest of
circumstances: where in domestic criminal proceedings in the receiving
State the very life of its nationals is being threatened. The breach at
issue here infringed upon the rights granted under Article 36 (1) to
Germany, as the sending State of which the LaGrands were nationals.
As a direct result of the violation, Germany was unable to render any
consular assistance during the ten-year period comprising the most
crucial stages of the proceedings against its nationals. In short, the
United States deprived Germany of the right to exercise an important
governmental function at the only time when that function could have
fulfilled its purpose: providing meaningful protection and assistance to
German nationals on trial for their lives.
6.32 The rights at issue here are undeniably substantial. The Respondent itself
has acknowledged that
"Article 36 of the Vienna Convention contains obligations of
21
the highest order and should not be dealt with lightly."
Indeed, the United States told this Court in the Hostages Case that the
right of consular "communication is so essential to the exercise of consular
functions that its preclusion would render meaningless the
entire establishment of consular relations." 22
6.33 The ten-year delay between the arrest of the LaGrands and Germany's
first opportunity to provide them with consular assistance aggravated both
violation and injury, because the timing of the consular notification and
assistance is an express and integral aspect of the rights granted by Article 36
(1) of the 1963 Vienna Convention. The words "without delay" are repeated in
each of the three sentences that constitute subpara. (1) (b) of Art. 36. This
focus on the rapidity of notification and communication reflects the
recognition that, in many cases, unless consular assistance can be provided at
the outset of criminal proceedings, it will turn out not to be effective at all. In
the pertinent words of the U.S. Foreign Affairs Manual:
"In order for the consular officer to perform the protective
function in an efficient and timely manner, it is essential that the
consul obtain prompt notification whenever a U.S. citizen is
arrested. Prompt notification is necessary to assure early access
to the arrestee. Early access in turn is essential, among other
things, to receive any allegations of abuse [and] to provide a list
of lawyers and a legal system fact sheet to prisoners. ...
Without such prompt notification of arrest, it is impossible to
achieve the essential timely access to a detained U.S. citizen. ...
[P]rompt personal access . . . provides an opportunity for the
consular officer to explain the legal and judicial procedures of
the host government and the detainee's rights under that 24
government at a time when such information is most useful."
6.34 The important role of the consular officer has been well described by
Leonard F. Walentynowicz, former Administrator of the Bureau of Security
and Consular Affairs in the U.S. Department of State:
"[T]he consular officer after learning of an arrest seeks access to
the accused to establish his identity and citizenship, to ensure he
is aware of his rights, to advise him of the availability of legal
counsel, to give him a list of local attorneys, to help him get in
touch with his family and friends, to alert him to the legal and
penal procedures of the host country and to observe if he had
been or is in danger of being mistreated." 25
Similarly, the practices and procedures followed by the German
Foreign Ministry call for its consular officers to render immediate
assistance to German nationals detained abroad, particularly to those
nationals facing a possible death sentence. 26The United States'
violation of Article 36 precluded Germany from rendering such
assistance to the LaGrand brothers. Thus, Germany was injured in its
rights by the breach on the part of the United States of the latter's obligations towards Germany under the Vienna Convention over an
extended period of time.
b) Indirect injury to Germany by violation of the rights of its nationals
6.35 By violating the rights of German nationals under Art. 36 (1) (b) of the
Vienna Convention as set out in Part Four, Chapter II, of the present Memorial,
the United States has also caused indirect injury to Germany. Under
established principles of intern27ional law, the injury suffered by nationals is
attributed to their home State. As the Permanent Court of International
Justice explained in the Mavrommatis Case:
"It is an elementary principle of international law that a State is
entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they
have been unable to obtain satisfaction through the ordinary
channels. By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own
rights - its right to ensure, in the person of its subjects, respect
for the rules of international law.
The question, therefore, whether the present dispute originates
in an injury to a private interest, which in point of fact is the
case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of
its subjects before an international tribunal, in the eyes of the
latter the State is sole claimant."8
Therefore, the United States has also caused indirect injury to
Germany.
c) Direct injury by non-observance of an Order of the Court
6.36 By the non-observance of a binding Order of the Court, the United States
has infringed a further right of Germany. The Commentary of the ILC draft
articles on State responsibility explains:
"The operative part of a judgment or other binding dispute-
settlement decision of an international court or tribunal may
impose an obligation on a State. ... [I]f any party to the dispute
fails to perform the obligations incumbent upon it under the
judgment, the other party to the dispute is the `injured State'." 29
The same is valid for the indication of interim measures of a binding
character.30 Since the Order on Interim Measures violated by the United
States was binding, 31Germany was injured by its non-observance.
2. The question of "prejudice" in domestic law6.37 As set out above, the injury suffered by Germany is independent of any
additional "prejudice" that might be required by domestic law as a precondition
for raising a violation of individual rights before domestic courts at a certain
32
stage of proceedings.
6.38 Nevertheless, the United States has argued both in the Breard Case and in
the present Case
"that few, if any, states would have agreed to Article 36 if they
had understood that a failure to comply with consular
notification would require undoing the results of their criminal
justice systems." 33
As Germany has argued earlier, this opinion is based on a
misunderstanding of the requirements of the law of State
responsibility. It amounts to saying that what States participating in
the Vienna Convention have in mind is not the loyal performance of
their obligations under the Convention but rather the consequences of a
breach of these obligations. The opposite is much more plausible:
States consenting to the Convention do so with the intention of
fulfilling their treaty obligations, and assume as a matter of course that
the general rules of State responsibility will apply in the case of breach.
6.39 Nevertheless, in the domestic jurisprudence of the United States, the
necessity of "prejudice" caused by violation of the Vienna Convention plays an
important role . Following this doctrine, there might at some stage in the case
of the LaGrands well have been a violation of Art. 36 by the Arizona
authorities but, the argument would continue, this violation had no effect.
Germany contests this view as contrary to the generally accepted -
international! - law of State responsibility, which demands nowhere that
"prejudice" be shown before an injured State may invoke responsibility for a
breach of international law. However, as proven above, 36even under the
assumption that the United States argument were relevant at the level of
international law, Germany and the LaGrand brothers did suffer "prejudice" by
the violation of Art. 36 of the Vienna Convention.
a) "Prejudice" is no requirement under the Vienna Convention or the law
of State responsibility
6.40 In international law, "prejudice", that, is an effect of the lack of consular
advice on a criminal conviction, does not need to be made plausible, let alone
proved, before reparation can be demanded. The U.S. view to the contrary does
not find any support whatsoever in the text of the Vienna Convention or in the
applicable law of State responsibility. Rather, all that a State invoking the
international responsibility of another State has to show is that it has suffered
injury by violations of its rights under international law, as Germany has
already done. 37
6.41 Thus, responsibility for the violation of the Vienna Convention does not
depend on the existence of "prejudice". As Shank and Quigley put it: "Besides infeasibility, the United States' argument about
prejudice is inconsistent with the concept of consular protection.
The Vienna Convention presumes the need for consular
assistance for every foreign detainee. Otherwise, the right of 38
consular access would not be guaranteed in the first place."
And the U.S. Solicitor General himself argued before the Supreme
Court that
"there is no workable way to determine whether consular
notification would have made a difference at a defendant's trial,
given the inviolability of consular archives and the privileges
and immunities of consular officers." 39
6.42 Aliens facing a foreign criminal justice system are necessarily
disadvantaged through differences of culture and custom, and distance from
their country. The normal procedural safeguards are not adequate to overcome
this disadvantage and to protect the due process rights of a foreign defendant.
Art. 36 of the Vienna Convention on Consular Relations guarantees consular
notification and assistance precisely because the States Parties to it recognised
this inherent prejudice, and likewise recognised the critical role of consular
assistance in alleviating it. Hence, the Vienna Convention requires advice to
foreign nationals on the right to contact their consulate in order to enable them
to have access to the resources and protection of their home country.
6.43 The States Parties to the Vienna Convention further recognised that if
consular assistance is to effectively compensate for the inherent prejudice to
detained foreign nationals, it must be available from the beginning and
throughout the entire criminal legal process. Hence, Art. 36 requires
notification to be given to the detained national, and if he or she so requests, to
the sending State, "without delay". If promptly notified, consuls can arrange
for adequate legal representation, explain the differences between the home
State's legal procedures and those of the foreign country, and begin to help
41
collecting evidence essential to the national's case. Without prompt
notification and access, effective consular assistance will be provided only
rarely, if at all, and thus the prejudice to the national may become irreparable.
6.44 To put it in simple terms: Because the Vienna Convention assumes
prejudice will occur due to the delay or lack of consular assistance, it logically
does not require a showing of prejudice in order to make available a remedy
for its violation. Such
"[a]fter-the-fact assessments of whether the presumed prejudice
actually r42ulted were not within the intent of [the States
Parties]."
Indeed, the United States itself acknowledged the impossibility of such
an approach before this Court during the oral proceedings on
Provisional Measures in the Breard Case, stating that it would be: "problematic to have a rule that a failure of consular notification
required a return to the status quo ante only if notification
would have led to a different outcome. It would be unworkable
for a court to attempt to determine reliably what a consular
officer would have done and whether it would have made a
difference. ... Surely governments did not intend that43uch
questions become a matter of inquiry in the courts."
Thus, Germany does not need to show any "prejudice" additional to the
injury already demonstrated.
b) The existence of "prejudice" in the trial of the LaGrand brothers
6.45 In any case, the argument of the necessity of "prejudice" would not
operate in favour of the United States in the present context, because the
violation of the right to be informed of the rights under Art. 36 of the Vienna
Convention did have a decisive effect on the trial and conviction of the
LaGrand brothers. As set out in Part Four, Chapter I. 3. c), the failure of the
United States to advise the LaGrand brothers of their right to contact their
consulate has caused them considerable damage or "prejudice", namely the
death penalty, and has ultimately cost them their lives.
Thus, even if one accepted the doubtful proposition that the violation of
the right to consular advice must have had an effect on the conviction
of the LaGrand brothers in order to "injure" Germany, that condition
would also be fulfilled because the lack of advice regarding their right
to consular assistance prevented the LaGrand brothers from raising
their troubled childhood and youth before United States courts and
therefore contributed decisively to their being subjected to the death
penalty.
3. Conclusion
6.46 By violating Art. 36 of the Vienna Convention and not observing the
Order of the Court of 3 March 1999, the United States has injured Germany,
both in its own rights and in the rights of its nationals. Germany is therefore
entitled to invoke the international responsibility of the United States,
independently of any question of domestic "prejudice".
III. Pronouncement of the wrongfulness of the conduct of the United
States as a form of satisfaction
6.47 Germany now turns to the substance of its entitlement to reparation. As
already stated, reparation is the normal consequence of a violation of
international law. According to ILC draft article 42 (1) - which is in full
accordance with the Chorzów Factory Judgment of the Permanent Court - 44
"[t]he injured State is entitled to obtain from the State which has
committed an internationally wrongful act full reparation in the
form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition, either singly or in
combination." 45
As the Commentary to the draft article explains:
"In the Chorzów Factory case, material damage had been
sustained and the Court therefore singled out only two methods
of reparation, ... . There are however other methods of
reparation which are appropriate to injuries of a non-material
nature, namely satisfaction and assurances or guarantees of non-
repetition."46
Therefore, both of the remedies requested by Germany - a
pronouncement of the illegality of the conduct of the United States and
the provision of guarantees of non-repetition - constitute recognised
forms of reparation. These remedies are not mutually exclusive. In the
following, Germany will first explain why a pronouncement of the
wrongfulness of the United States conduct is an appropriate remedy.
Following this, Germany will prove that all the conditions for
satisfaction in the form of a pronouncement of illegality are fulfilled in
the present case.
1. Pronouncement of wrongfulness as a form of satisfaction
6.48 According to ILC draft article 45,
"[t]he injured State is entitled to obtain from the State which has
committed an internationally wrongful act satisfaction for the
damage, in particular moral damage, caused by that act, if and
to the extent necessary to provide full reparation."
In its commentary to this article, the ILC affirms that
"satisfaction ... has a place both in literature and in international
jurisprudence, namely recognition by an international tribunal
of the unlawfulness of the offending State's conduct." 47
6.49 The most important pronouncement in this respect stems from the
Judgment of the International Court of Justice in the Corfu Channel Case.
There the Court stated that
"the United Kingdom violated the sovereignty of the People's
Republic of Albania, and that this declaration 48 the Court
constitutes in itself appropriate satisfaction."
The Permanent Court of International Justice described one of the
purposes of such a declaration of wrongfulness in the following terms:
"The Court's Judgment ... is in the nature of a declaratory
judgment, the intention of which is to ensure recognition of a situation at law, once and for all and with binding force as
between the Parties; so that the legal position thus established
cannot again be called in question in so far as the legal effects
49
ensuing therefrom are concerned."
Recently, on 30 April 1990, in the Case concerning the Rainbow
Warrior Affair between New Zealand and France, the Arbitral Tribunal
explained that
"[t]here is a long established practice of States and international
Courts and Tribunals of using satisfaction as a remedy or form
of reparation (in the wide sense) for the breach of an
international obligation. This practice relates particularly to the
case of moral or legal damage done directly to the State,
especially as opposed to the case of damage to persons
involving international responsibilities." 50
Accordingly, the Arbitral Tribunal came to the conclusion
"that the condemnation of the French Republic for its breaches
of its treaty obligations to New Zealand, made public by the
decision of the Tribunal, constitutes in the circumstances
appropriate satisfaction for the legal and moral damage caused
51
to New Zealand."
Only recently, on 1 July 1999, the International Tribunal for the Law of
the Sea confirmed that
"[r]eparation in the form of satisfaction may be provided by a 52
judicial declaration that there has been a violation of a right."
6.50 Pursuant to these pronouncements, the declaration of the wrongfulness of
certain conduct by the Court has a twofold function: (1) It interprets a disputed
point of law in a definitive way binding upon the parties, and (2) it provides
satisfaction to the injured party. Germany requests the declaration of
wrongfulness of the conduct of the United States in the present case for both of
these purposes.
As an author observed on arbitral jurisprudence concerning satisfaction,
"where the satisfaction is non-pecuniary there is no problem.
Thus ... a declaratory judgment was held to constitute adequate
53
satisfaction for violation of state sovereignty, ... ."
Thus, both the jurisprudence of the International Court and that of other
international judicial bodies confirm that satisfaction in the form of a
pronouncement of wrongfulness is an appropriate remedy in
international law.
2. Conditions of satisfaction6.51 Germany's claim to satisfaction also fulfils the conditions under general
international law as restated in article 45 of the ILC draft: First, Germany must
have suffered moral damage by the conduct of the United States. Second, this
damage must have been caused by the conduct of the United States. Third,
satisfaction must be necessary in order to provide full reparation. Fourth, the
demand for the pronouncement of wrongfulness must not impair the dignity of
the United States. In the following, Germany will set out these conditions in
detail.
a) Moral damage suffered by Germany because of the internationally
wrongful acts of the United States
6.52 The first condition mentioned in ILC draft article 45 is "damage, in
particular moral damage" done to Germany. The damage referred to in draft
article 45 is not material damage, but "moral" or "political" damage ensuing
from a violation of an international legal right of the injured State; "injury" in
this context understood as injury to the dignity, honour, prestige and/or legal
sphere of the State affected by an internationally wrongful act. The ILC
Commentary further specifies that
"[t]he all-embracing phrase `damage, in particular moral
damage' is intended to convey the notion that the kind of injury
for which satisfaction operates ... consists in any non-material
damage suffered by a State as a result of an internationally
wrongful act." 55
6.53 Germany has suffered damage of this kind in the present case in several
respects. First of all, Germany has suffered moral and political damage by the
fact alone that its rights and the rights of its nationals were violated by the
United States as set out in Part Four of the present Memorial. That a violation
of the rights of a State gives rise to moral and political damage regardless and
independent of any material injury is generally recognised. In the words of
Dionisio Anzilotti:
"The essential element in inter-State relations is not the
economic element, although the latter is, in the final analysis,
the substratum; rather, it is an ideal element, honour, dignity,
the ethical value of subjects. The result is that, when a State
sees that one of its rights is ignored by another State, that mere
fact involves injury that it is not required to tolerate, even if
material consequences do not ensue; ... ." 56
6.54 However, the violation of Germany's rights does not exhaust the
immaterial damage caused by the wrongful conduct of the United States. The
United States has caused additional moral and political damage to Germany by
its disregard for Germany's interventions on behalf of its nationals: Germany
intervened in favour of the LaGrand brothers several times to the U.S.
authorities, the President, the Department of State, the Justice Department, and
the authorities of the State of Arizona, by way of written and oral submissions
from its own highest authorities - the Bundespräsident (President, i.e., the Headof State of Germany), the Bundeskanzler (Federal Chancellor, that is, the Head
of Government), the Foreign Minister, the Minister of Justice, the Ambassador
to the United States and the Consul General in Los Angeles - requesting
respect for the rights of Germany and the LaGrands under Art. 36 of the
Vienna Convention, as well as for the Order of the Court of 3 March 1999, and
invoking several compelling reasons for granting clemency that would have
spared the brothers from the death penalty, but to no avail. Germany has even
taken the extraordinary step of lodging an application against th58United States
and the Governor of Arizona before the U.S. Supreme Court. The Governor
of Arizona ignored not only these interventions, but in the case of Walter
LaGrand also the Order of the International Court of Justice as well as the
recommendation of the Arizona Board of Executive Clemency to po59pone the
execution in order to gain time to duly consider the matter. As to the U.S.
Federal Government, not only did it completely ignore the requests of the
German Government, its Solicitor General even argued before the Supreme
Court in favour of simply ignoring the Order of this Court of 3 March 1999
and agains60any federal interference in the course leading to the death of Walter
LaGrand. In contrast, in comparable cases concerning nationals of other
countries, the U.S. Federal Government has at least asked the local authorities
to halt the execution. In the present Case, the United States did not even
conform to what it itself expressly considers to be required if a breach of Art.
36 of the Vienna Convention occurs: In his brief to the U.S. Supreme Court in
the Breard Case, the U.S. Solicitor General declared:
"The State Department has accorded Paraguay the traditional
remedy among nations for failures of consular notification: it
has investigated the facts, determined that there was a breach,
formally apologized on behalf of the United States, and
undertaken to improve future compliance." 62
In the Case of the LaGrand brothers, the United States has done nothing
of that sort, let alone fulfilled its obligation to grant restitutio in
integrum under the applicable law of State responsibility.
6.55 Thus, the United States authorities almost completely disregarded the
concerns and interventions by Germany directed against the violations of its
rights and the rights of its nationals. Therefore, the United States caused
considerable political and moral damage to Germany. This damage to
Germany was so considerable as to justify a demand for satisfaction in the
form of a pronouncement of the wrongfulness of the conduct of the United
States.
b) Causation
6.56 Germany will now address the issue of causality. ILC draft article 45 (1)
stipulates:
"The injured State is entitled to obtain from the State which has
committed an internationally wrongful act satisfaction for the 63
damage, in particular moral damage, caused by that act, ... ." In the words of the ILC commentary, causation in this connection
means
"the presence of a clear and unbroken causal link between the
unlawful act and the injury for which damages are being
claimed. For injury to be indemnifiable, it is necessary for it to
be linked to an unlawful act by a relationship of cause and
effect and an injury is so linked to an unlawful act whenever the
normal and natural course of events would indicate that the
injury is a logical consequence of the act or whenever the author
64
of the unlawful act could have foreseen the damage it caused."
This statement is meant to apply to all cases where causation is
considered a condition for a remedy and thus also comprises the case
of satisfaction.
6.57 In the present instance, the damage described above was caused by the
United States. As far as the moral damage resulted from the treaty violations
committed by the United States per se, causation is self-evident. The causal
link between the unlawful acts and the further political and moral damage
Germany has incurred is also obvious: If the United States had respected Art.
36 of the Vienna Convention and/or the Order of the Court, Germany would
not have incurred moral or political damage.
c) Necessity of the pronouncement
6.58 According to ILC draft article 45 (1), the necessity of the required
measure of satisfaction for full reparation constitutes a further condition for the
right to satisfaction. In the present case, in which the Respondent apparently
denies any violation of international law, the content and impact of those
violations is obviously subject to dispute. Therefore, a pronouncement on the
wrongfulness of the conduct of the United States is absolutely necessary in
order to restore and secure Germany's rights under the Vienna Convention.
Such a pronouncement will counter the public impression that the United
States can violate the rights of Germany and its nationals without any
consequences. Therefore, the integrity of Germany's rights will only be
restored if the Court pronounces with binding force the wrongfulness of the
conduct of the United States.
3. Conclusion
6.59 For all of these reasons, Germany requests that the Court pronounce the
wrongfulness of the conduct of the United States, as set out in Part Four of the
present Memorial, as a form of satisfaction.
IV. Assurances and guarantees of non-repetition
6.60 Germany also demands guarantees of non-repetition in order to prevent
further violations of its rights and those of its nationals in the future. The
United States itself has always insisted - and rightly so - that compensation forviolations of its rights under international law is not sufficient, and that the
wrongdoing State must also ensure the respect of its international obligations
in the future. As President Lyndon B. Johnson affirmed on the occasion of
attacks against the United States embassy in Moscow in 1964 and 1965:
"The U.S. Government must insist that its diplomatic
establishment and personnel be given the protection which is
required by international law and custom and which is
necessary for the conduct of diplomatic relations between states.
Expressions of regret and compensation are no substitute for
adequate protection." 66
The same is valid, mutatis mutandis, for the rights of Germany and its
nationals on the territory of the United States based on Art. 36 of the
Vienna Convention on Consular Relations. In this context, assurances
and guarantees of non-repetition are of particular importance because
the execution of the LaGrand brothers rendered retroactive relief such
as restitutio in integrum impossible.
6.61 Unlike satisfaction and reparation in general, assurances and guarantees
of non-repetition do not look to the past but to the future. They are recognised
as a separate remedy in customary international law, as expressed in the ILC's
draft article 46 which stipulates as follows:
"Assurances and guarantees of non-repetition
The injured State is entitled, where appropriate, to obtain from
the State which has committed an internationally wrongful act
assur67ces or guarantees of non-repetition of the wrongful
act."
6.62 This provision is in full accordance with international practice and
doctrine. As Professor Przetacznik remarks:
"En général, dans tous les cas de préjudices de caractère moral
et politique, l'État lésé, entre autres formes de satisfaction
demande des assurances de sécurité pour l'avenir, ce qui signifie
que l'État intéressé s'acquittera avec plus de diligence ou plus
68
d'efficacité de son devoir de protection."
Only recently, on 1 July 1999, the International Tribunal for the Law of
the Sea, referring to draft article 42 (1), explained that
"[r]eparation may be in the form of `restitution in kind,
compensation, satisfaction and assurances and guarantees of
non-repetition either singly or in combination'". 69
The ILC Commentary to draft article 46 explains that "[t]he text adopted by the Commission provides that the injured
State is entitled, where appropriate, to obtain from the
wrongdoing State assurances or guarantees of non-repetition. It
therefore recognizes that the wrongdoing State is under an
obligation to provide such guarantees subject to a demand from
the injured State and when circumstances so warrant.
Circumstances to be taken in consideration include the
existence of a real risk of repetition and the seriousness of the
injury suffered by the claimant State as a result of the wrongful
act."70
6.63 Thus, assurances and guarantees of non-repetition are subject to two
conditions: (1) A respective demand from the injured State; and (2)
circumstances warranting those guarantees, in particular the existence of a risk
of repetition and the seriousness of the injury.
To those conditions Germany will now turn.
1. The demand of Germany
6.64 In its submissions contained in the final Part of the present Memorial,
Germany, as the injured State, puts forward its demand for assurances and
guarantees of non-repetition in the following terms:
"The Federal Republic of Germany respectfully requests the
Court to adjudge and declare ...
that the United States shall provide Germany a guarantee that it
will not repeat its illegal acts and ensure that, in any future cases
of detention of or criminal proceedings against German
nationals, United States domestic law and practice will not
constitute a bar to the effective exercise of the rights under
Article 36 of the Vienna Convention on Consular Relations."
6.65 State practice knows two kinds of demands for guarantees: (1) demands
for safeguards against the repetition of the wrongful act without any
specification, and (2) demands for specific measures to secure that the future
conduct of the wrongdoing State will be in compliance with international
law.71
6.66 Thus, in the sense of the first alternative and to begin with an instance of
U.S. practice, in four cases involving the visitation and search of American
merchant vessels by Spanish armed cruisers in 1880, the U.S. Secretary of
State Evarts declared:
"[T]his government will look to Spain for a prompt and ready
apology for their occurrence [of the unlawful acts], a distinct
assurance against their repetition, and such an indemnity to the
owners of those several vessels as will satisfy them for the past
and guarantee our commerce against renewed interruption by engaging the interest of Spain in restraint of rash or ignorant
infractions, by subordinate agents of its power, of our rights
72
upon the seas."
To mention the practice of other States: In the case of an attack against
the Chinese Consulate General at Jakarta in March 1966, the Chinese
Deputy Minister for Foreign Affairs, Mr Hang Nien-Lung, requested in
a note to the Indonesian Ambassador in China, Mr Djawoto, inter alia,
"une garantie contre tout renouvellement de pareils incidents à
l'avenir."3
After an attack on an Israeli civil aircraft carried out in Zurich on 18
February 1969,
"the Swiss Government delivered formal notes of protest to
Jordan, Syria, and Lebanon in which the attack at Zurich was
condemned and in which each of the three governments was
urged to take steps `to prevent any new violations of Swiss
territory'."4
In these instances, the choice of the appropriate measures remained
with the wrongdoing State.
6.67 According to the second of the above-mentioned alternatives, the injured
State may demand the adoption of specific measures by the wrongdoing State.
The ILC Commentary lists three non-exhaustive categories of such specific
measures, namely demands for
(1) formal assurances,
(3) specific instructions to agents of the wrongdoing State, and
(4) certain conduct by the wrongdoing State, in particular the adoption
or abrogation of specific legislative provisions. 75
6.68 The most prominent example pertaining to the third group, which is of
particular significance in the present instance, is the Trail Smelter Case, in
which an Arbitral Tribunal was empowered to create a detailed régime of
environmental protection in order to "effectively prevent future significant
76
fumigations in the United States". In the case of A. K. Cutting, it was the
United States which demanded the change of a Mexican law granting universal
jurisdiction to Mexican criminal courts for alleged crimes committed by
foreigners abroad. Pursuant to this law, the United States citizen Mr. Cutting
was imprisoned in Mexico for an alleged offence committed in the United
States. Following Cutting's arrest, the United States not only demanded his
immediate release but also a change of Mexican law. As U.S. President
Cleveland told Congress on 8 December 1886, "I trust that in the interests of good neighborhood the statute
referred to will be so modified as to eliminate the present
possibilities of danger to the peace of the two countries." 77
U.S. Secretary of State Bayard instructed the United States ambassador
in Mexico as follows:
"You are therefore instructed to say to the Mexican
Government, not only that an indemnity should be paid to Mr.
Cutting for his arrest and detention in Mexico on the charge of
publishing a libel in the United States against a Mexican, but
also, in the interests of good neighborhood and future amity,
that the statute proposing to confer such extraterritorial
jurisdiction should, as containing a claim invasive of the
independent sovereignty of a neighboring and friendly state, be
repealed." 78
As the Secretary of State explained, such a demand was not
exceptional. The United States itself had amended its laws to meet
international standards:
"Nor is a change of municipal law to meet the exigencies of
international intercourse without precedent in the United States.
In the case of McLeod, in 1842, when, in reply to the demand of
the British Government for the release of the prisoner ... this
Government was compelled to return a reply not dissimilar to
that made by Mr. Mariscal ... . Congress amended the law
regulating the issuance of writs of habeas corpus so as to
facilitate the performance by the Government of the United
States of its international obligations. So that nothing is
suggested to the Government of Mexico in this relation which
has not been put in practice by the Government of the United
States."79
6.69 Recent examples of demands for the change of domestic legislation stem
from international institutions for the protection of human rights, such as the
Human Rights Committee overseeing the implementation of the International
Covenant for Civil and Political Rights. 80 For instance, in its decision of 23
July 1980 in the Torres Ram81ez Case under Article 5 (4) of the Optional
Protocol to the Covenant, the Human Rights Committee adopted the
following view:
"The Committee, accordingly, is of the view that the State party
is under an obligation to provide the victim with effective
remedies, including compensation, for the violations which he
has suffered and to take steps to ensure that similar violations
do not occur in the future." 82 Following these precedents, Germany would even be entitled to
demand an express change of United States domestic law as a
guarantee of non-repetition.
6.70 The German request for "formal" assurances is appropriate in the present
Case if only because it will be decided by the International Court of Justice
after a formal procedure. In addition, since all informal requests of Germany,
and even the formal Order of the Court on Provisional Measures were ignored
by the United States, Germany cannot be content any longer with mere
informal assurances on the part of the United States.
6.71 In precise terms, Germany demands formal assurances that the United
States will bring its practice in conformity with the requirements of
international law, without laying out in detail whether these modifications are
to be brought about by formal changes in its domestic law or simply by
changing the practical application of its respective legislation. Nevertheless,
Germany wishes to emphasise that the result of the endeavour must be
complete conformity of United States conduct with Art. 36 of the Vienna
Convention on Consular Relations. By so couching its demand, Germany on
the one hand seeks to ensure that the United States will respect Germany's
rights and the rights of its nationals in the future. On the other hand, Germany
has no intention to unnecessarily interfere with the domestic legal system of
the United States. Thus, the choice of means is left to the United States.
2. Circumstances requiring the pronouncement of assurances and
guarantees of non-repetition
6.72 According to ILC draft article 46, guarantees of non-repetition are to be
accorded only "where appropriate". The Commentary explains that
"[c]ircumstances to be taken in consideration include the
existence of a real risk of repetition and the seriousness of the
injury suffered by the claimant State as a result of the wrongful
act."83
As Germany will show, both circumstances mentioned in the ILC
Commentary are present in our case.
a) Risk of repetition
6.73 In the present context, the primary evidence pointing to a risk of repetition
is to be seen in the fact that the present Case is the second instance within less
than one year in which the International Court of Justice had to deal84ith the
omission of consular advice and notification by the United States.
6.74 Secondly, as already pointed out in Part Four of the present Memorial,
Germany knows of at least eight more cases in the very recent past in which
advice by its consulates could not b85provided due to a lack of information
from the United States authorities. In addition, it is in the nature of such lack
of information that Germany will not be, and probably never will become,aware of all or even most of the cases concerned due to what amounts to
almost a pattern of failure by the U.S. authorities to properly inform German
nationals arrested and detained of their rights.
6.75 Thirdly, as the Arizona authorities have themselves admitted, they
knowingly refrained from informing the LaGrand brothers about their rights.
As was set out in Part Four in necessary detail, due to the denial of remedies
against such failure of information in United States procedural law, even such
intentional disregard of the rights of German citizens under international law
cannot be remedied once a jury trial has taken place. As long as United States
domestic law encourages the omission of information on consular access on
the part of the authorities rather than prevents it, to the disadvantage of the
defence, such violations of the rights under Art. 36 of the Vienna Convention
will certainly occur time and again as long as these laws and practices are not
changed.
b) Seriousness of the injury suffered by Germany
86
6.76 As set out in detail above, the intentional disregard of Germany's rights
and the rights of its nationals, and the consistent refusal of United States
authorities, whether federal, state or local, whether executive or judicial, to
respect Germany's rights and the rights of its nationals under Art. 36 of the
Vienna Convention in spite of Germany's interventions, have created serious
political and moral injury to Germany. The present Case involves not "only"
the lives of two German nationals, executed in breach of international law and
of an Order of the highest Jurisdiction of the world. Its significance goes far
beyond that. Ultimately, this Case deals with the question of whether German
nationals present on the territory of the United States can effectively assert
their rights. Therefore, Germany's injury is serious.
3. Conclusion
6.77 Germany's demand for assurances and guarantees of non-repetition meets
all the requirements of ILC draft article 46 and the customary international law
of State responsibility. It is in the interest neither of the United States nor of
Germany - nor of the Court, for that matter - that Germany appears again and
again in this forum to ascertain its rights and the rights of its nationals. The
appropriate remedy under these circumstances is the provision of guarantees
and assurances of non-repetition.
V. No circumstances precluding these remedies
6.78 The ILC draft contains several factors which preclude satisfaction even if
the normal prerequisites for such a remedy were present. In the following,
Germany will prove that none of these circumstances affect the
appropriateness of the remedies sought in the present Case.
1. No impairment of the dignity of the United States
6.79 According to ILC draft article 45 (3), "[t]he right of the injured State to obtain satisfaction does not
justify demands which would impair the dignity of the State
which has committed the internationally wrongful act." 87
Even though it is not expressly mentioned in draft article 46, the ILC
considers this condition applicable to assurances and guarantees of non-
repetition as well.88
Whether this requirement follows from 89ready existing international
law on the matter may be doubtful. In any case, no such impairment
of the dignity of the United States is involved in the present Case.
Germany has taken utmost care to respect the dignity of the Respondent
by not requesting any remedy that could offend the United States. What
Germany maintains are two requests which both fully respect the
dignity of the United States:
6.80 (1) The pronouncement of the wrongfulness of the conduct of the United
States is indispensable for ensuring respect of Germany's rights and the rights
of its nationals in the future. The entire task of the International Court of
Justice consists in upholding the rule of law in international relations. A
pronouncement of the Court on the legality or illegality of this or that conduct
can never impair the dignity of the members of the international community
but only restore the integrity of the international legal system. The dignity of
the members of this community can only be maintained when international law
is fully respected.
6.81 (2) This argument is also valid for guarantees of non-repetition which are
to ensure that Germany's rights and the rights of its nationals will be respected
in the future.
2. No contribution of Germany or its nationals to the damage caused
6.82 ILC draft article 42 (2) mentions another circumstance to be taken into
account:
"In the determination of reparation, account shall be taken of
the negligence or the wilful act or omission of:
(a) the injured State; or
(b) a national of that State on whose behalf the claim is brought;
which contributed to the damage." 90
91
6.83 The customary law character of this condition may be doubtful. But it is
obvious that neither Germany as the injured State, nor the LaGrand brothers
contributed in any way to the damage caused to Germany and the brothers
themselves by the non-fulfilment of the international legal duties of the United
States. After becoming aware of the German nationality and the detention of
the LaGrand brothers, Germany assisted the brothers and their attorneys in
raising the omission of information on the right to consular access by theArizona authorities. As Germany has described above, after the brothers had
become aware of their German nationality, they raised the violation of Art. 36
of the Vienna Convention in both state and federal Courts. However, in every
instance from the Arizona Superior Court to the U.S. Supreme Court, their
claim to a new trial or a new sentencing hearing was rejected as "procedurally
defaulted". 92
Thus, Germany and the LaGrand brothers did everything at their
disposal to prevent the damage from arising. Therefore, the United
States alone is responsible for the damage caused to Germany.
3. The domestic law of the United States providing no justification for
failure to provide reparation
6.84 Germany's entitlement to a pronouncement of the wrongfulness of United
States conduct in the present Case and to guarantees of non-repetition do not
depend on the current state of United States domestic law. As Germany has
already explained above, it is a universally recognised principle of
international law that, in the words of Art. 27 of the 1969 Vienna Convention
on the Law of Treaties,
"[a] party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty."
This is no different in the case of international legal remedies requiring
a change of domestic law. As Germany has explained above, the
guarantees which it requests leave the choice of means, especially the
answer to the question whether future compliance with the relevant
obligations of the United States requires changes of domestic law, to
the United States itself. However, if the result is that the United States
will only be able to meet the requirements of the Vienna Convention if
it effects changes to its law, it will have to do so. As ILC draft article
42 (4) puts it:
"The State which has committed the internationally wrongful
act may not invoke the provisions of its internal law as
justification for the failure to provide full reparation."4
Analysing certain arbitral awards in which compensation instead of
restitutio was awarded, the Commission concludes:
"The Commission would however tend to view those decisions
as based on excessive onerousness or lack of proportion
between the injury caused and the burden represented by a
specific form of reparation rather than on obstacles deriving
from municipal law." 95
6.85 An argument to the effect that the provision of guarantees by the United
States to implement the international obligations relevant here in the future
would place an excessive burden on the United States essentially amounts toan admission that the United States is incapable of keeping its obligations
under the Vienna Convention. Such an admission cannot excuse breaches of
international law, however. In the words of the International Law Commission:
"Any State which is well aware of its international obligations -
secondary as well as primary - is bound to see to it that its legal
system, not being opposable to the application of international
legal rules, is adapted or adaptable to any exigencies deriving
from such rules. ... The juridical obstacles of municipal law are,
strictly speaking, factual obstacles from the point of view of
international law. Hence they should not be treated as strictly
legal obstacles in the same96ense as obstacles deriving from
international legal rules."
Thus, even if the choice of means of how to fulfil its international legal
obligations is within the discretion of the United States - that is, as far
as no specific method of implementation is required by a rule of
international law -, a State cannot invoke its internal law as justification
to disregard its obligations under international law.
6.86 An analysis strictly limited to the international legal aspects of the
question might stop at this point. After all, the domestic law of the United
States is not a matter for this Court to review - except if expressly provided
otherwise, like in Art. 36 (2) of the 1963 Vienna Convention. Nevertheless,
Germany emphasises that nothing requested in the present Memorial will force
the United States to act contrary to its Constitution, or would otherwise do
violence to any principle of United States law. However, especially in view of
Art. 36 (2) of the Vienna Convention, certain changes of U.S. domestic law
regarding rights of foreigners in the United States might well be necessary.
In this regard, the following points merit particular emphasis:
6.87 (1) Concerns of federalism are not relevant to the performance of
international legal obligations. According to a well-known statement of the
U.S. Supreme Court,
"in respect of our foreign relations generally, state lines
disappear. As to such purposes, the state of New York [or, one
might add, the state of Arizona] does not exist." 97
(2) The Federal Government has several measures at its disposal of
how to ensure compliance by states with the obligations of the United
States derived from Art. 36 (1) of the Vienna Convention. These
measures include, inter alia,
(a) The President of the United States could use his or her power, "to
take Care that the Laws be faithfully executed", which the United
States Constitution obliges him or her to do in Art. 2 Sect. 3, to
intervene in the case of non-compliance with international law on the
part of the states. Several authorities in U.S. constitutional and foreign relations law have emphasised that such action would be possible,
either by Executive Order or by suing the state concerned before a
federal court.98
(b) The United States Congress could change the Antiterrorism and
Effective Death Penalty Act of 1996, in order to allow suits against
the disregard of the right to consular information in federal courts.
(c) The United States Congress could issue legislation authorising suits
for damages for failure of federal or state authorities to comply with the
Vienna Convention.
(d) The U.S. Congress could use its power of "conditional preemption"
to permit states the arrest of foreign nationals only if t100states provide
notice upon arrest of the right of consular notification.
(e) The U.S. courts could interpret the Antiterrorism and Effective
Death Penalty Act and the procedural default rule in accordance with
the requirements of international law pursuant to the so-called
Charming Betsy rule. This rule derives its name from an early Supreme
Court decision in which the Court stated that "an act of congress ought
never to be construed to violate the law of nations, if any other possible
construction remains". 101
(f) The U.S. courts should, if not as a matter of law at least as a matter
of comity, respect binding Orders of this Court in line with the "global
allocation of judicial responsibility", as Professor Anne-Marie
Slaughter has put it.102
6.88 All of these measures would be fully consistent with the constitutional
structure and governing legal principles of the United States. It is unnecessary
for the International Court of Justice to endorse any particular means of
ensuring more effective compliance. What is important is that the United
States Federal Government is perfectly capable of enforcing compliance with
the Vienna Convention through its own agencies as well as through states and
thus to give the assurances requested by Germany.
6.89 As Germany itself is a federal State, it has a great deal of respect for the
federal system of the United States, which has provided the framers of its own
constitution, the Grundgesetz, with invaluable inspirations. The
pronouncement Germany seeks from the world's highest Jurisdiction does not
encroach upon the internal legal system of the United States and its freedom to
choose the means of implementing its international obligations. However, it is
a universally accepted proposition that a State must not and cannot invoke its
federal system as an excuse for the non-performance of its international
obligations. Therefore, the United States cannot invoke federalism as a
justification for disregarding the rights of Germany and its nationals. The same
is valid regarding the implementation of the remedies decided upon by the
International Court of Justice. The United States is obliged to comply with
Judgments of the Court pursuant to Art. 94 (1) of the United Nations Charterand Art. 41 (1) of the Statute of the Court. According to Art. VI sect. 2 of the
United States Constitution, treaties constitute "the supreme Law of the Land".
Thus, a pronouncement of this Court could help to ensure the implementation
of Art. 36 of the Vienna Convention by the U.S. federal, state and local
authorities and the legislative, judicial and executives branches.
VI. Conclusion
6.90 For the reasons thus given, Germany's claims to remedies for the breaches
of international law committed by the United States are fully supported by the
law of State responsibility. The United States may not invoke its dignity, its
internal law, or any other consideration in order to evade the consequences of
these remedies.
6.91 In specific terms, pursuant to international law, Germany has a right to
demand the following remedies from the United States:
(1) A pronouncement of the wrongfulness of the conduct
of the United States towards Germany and its citizens
described in Part Four of the present Memorial;
(2) the provision of assurances and guarantees of non-
repetition of such wrongful conduct towards Germany
and its citizens.
Part Seven
Conclusions and Submissions
I. Conclusions
7.01 On the basis of the foregoing, the Federal Republic of Germany arrives at
the following conclusions:
(1) Since the present dispute arises out of the
interpretation and application of the Vienna Convention
on Consular Relations, it falls within the scope of
Article I of the Optional Protocol to the Convention.
Accordingly, the International Court of Justice has
jurisdiction to hear all claims brought by the Federal
Republic of Germany in its Application of 2 March
1999, as modified in the following Submissions.
(2) Neither the timing of the German Application nor the
fact of the execution of Walter LaGrand subsequent to
its filing stand in the way of the admissibility of the
Application.
(3) By not informing Karl and Walter LaGrand of their right to have the
authorities of the United States notify the German consulate of their
arrest and detention, and by thus not providing the consulate withaccess to them, the United States has violated the following obligations
embodied in Art. 36 (1) of the Vienna Convention on Consular
Relations:
(a) The obligation to advise the LaGrands without delay
about their right to inform the German consulate of their
arrest in accordance with Art. 36 (1) (b) of the Vienna
Convention;
(b) The obligation to grant the German consulate the
freedom of communication with its nationals, including
its right to visit, and, vice versa, the obligation to grant
the brothers LaGrand the freedom to communicate with
and have access to the German consulate, according to
Art. 36 (1) (a) and (c) of the Convention.
Had these violations not occurred, German
consular officials would have immediately
provided protection, support and assistance to
their nationals, helping in the preparation of their
defence, in obtaining competent counsel and in
collecting mitigating evidence. Thus, the case of
the LaGrands would have been thoroughly
investigated and essential mitigating evidence,
mainly located in Germany, would have been
presented at the decisive steps of the criminal
proceedings. There are compelling reasons to
believe that the LaGrands would have escaped
the death penalty if this evidence had been
introduced in time. Hence, the lack of consular
advice was decisive for the infliction of the death
penalty.
(4) By applying rules of its domestic law which
prevented the LaGrands from raising the said violations
of Art. 36 (1) of the Vienna Convention subsequent to
their conviction in the courts of Arizona, in particular
the rule of procedural default, and by not providing for
any effective mechanism to remedy this situation in the
post-conviction phase of the proceedings, the United
States has committed a breach of its obligation to enable
full effect to be given to the purposes for which the
rights embodied in Art. 36 (1) are accorded (Art. 36 [2]
of the Vienna Convention). A prerequisite of "prejudice"
under domestic law is not in line with Art. 36 (2) of the
Vienna Convention. But even if it were held otherwise,
the law of the United States still does not meet the
requirements of Art. 36 (2) of the Convention because it
does not provide effective remedies even in the face of
such prejudice, as in the case of the LaGrand brothers. (5) By its failure to allow the LaGrands the exercise of
the individual rights accruing to them as foreign
nationals under Art. 36 (1) (b) of the Vienna
Convention, the United States has also breached the
minimum rights of aliens in foreign States under
customary international law, entitling Germany to
exercise its right of diplomatic protection.
(6) By not observing the Order on Provisional Measures pronounced by
this Court on 3 March 1999, committing it "to take all measures at its
disposal to ensure that Walter LaGrand is not executed pending the
final decision_ of the International Court of Justice on the matter, the
United States has not abided by its obligation under Art. 94 of the
Charter of the United Nations and Art. 41 of the Statute of the
International Court of Justice to comply with the decision of the
International Court of Justice in any case to which it is a party and its
corresponding duty not to frustrate the judicial task of the Court.
(7) The United States did not prevent the execution of Karl and Walter
LaGrand irrespective of German demands. By thus making irreversible
its earlier breaches of Art. 5 and 36 (1) and (2) and causing irreparable
harm, the United States violated its obligations under international law.
(8) The actions and omissions of the United States described in the
preceding Conclusions (3) to (7) entail the international responsibility
of the Respondent, according to the rules of general international law
on the subject. The Vienna Convention on Consular Relations does not
constitute a "self-contained régime" (to the exclusion of the generally
applicable law of State responsibility). All the actions or omissions of
the United States, including in particular those of United States courts,
are attributable to the Respondent. Precepts and doctrines of the
domestic law of the United States as applied by its authorities in the
case of the LaGrands may not be invoked as justification for its failure
to perform the obligations under the Vienna Convention. Further,
independently of the view taken with regard to the subjective element
in State responsibility, in the present case, negligence, at least, on the
part of the United States authorities is undeniable. Also, to the extent
necessary within the present context, the local remedies available to the
LaGrand brothers were all exhausted.
(9) By violating Art. 36 of the Vienna Convention on Consular
Relations and by not observing the Provisional Measures indicated by
this Court, the United States has injured Germany both in its own rights
and in the rights of the LaGrands as its nationals. Germany is therefore
entitled to invoke the international responsibility of the United States.
(10) As a consequence of the breaches described in Conclusions (3) to
(7), it is incumbent on the United States to provide full reparation.
However, through its non-observance of the binding Order of this
Court, the United States has rendered the restoration of the status quo ante in the case of Walter LaGrand impossible. Germany concentrates
its requests on - and limits the remedies it seeks from this Court to -
what it considers absolutely necessary to ensure that German nationals
in the United States will be provided with adequate consular assistance
in the future. Thus, Germany limits its claims to reparation of the injury
incurred by the treatment of the LaGrand brothers to
(a) satisfaction in the form of a
pronouncement of the
wrongfulness of the actions and
omissions of the United States
described above, and
(b) assurances and guarantees of
non-repetition to prevent further
violations of its rights and those
of its nationals.
Neither of these remedies impairs the dignity of
the United States. Neither Germany nor the
LaGrands have contributed to the damage caused
by the acts of the United States. The state of U.S.
domestic law may not be invoked as a
justification for the failure to provide the
requested forms of reparation.
(11) As to the requested pronouncement of illegality of
the conduct of the United States, Germany's claim fulfils
all conditions under the law of State responsibility: The
conduct of the United States has inflicted moral damage
upon Germany. A pronouncement of the wrongfulness
of this conduct is necessary in order to restore and
secure Germany's rights under the Consular Convention.
(12) Concerning the requested assurances and
guarantees of non-repetition of the United States, they
are appropriate because of the existence of a real risk of
repetition and the seriousness of the injury suffered by
Germany. Further, the choice of means by which full
conformity of the future conduct of the United States
with Art. 36 of the Vienna Convention is to be ensured,
may be left to the United States.
II. Submissions
7.02 Having regard to the facts and points of law set forth in the present
Memorial, and without prejudice to such elements of fact and law and to such
evidence as may be submitted at a later time, and likewise without prejudice to
the right to supplement and amend the present Submissions, the Federal
Republic of Germany respectfully requests the Court to adjudge and declare (1) that the United States, by not informing Karl and
Walter LaGrand without delay following their arrest of
their rights under Article 36 subparagraph 1 (b) of the
Vienna Convention on Consular Relations, and by
depriving Germany of the possibility of rendering
consular assistance, which ultimately resulted in the
execution of Karl and Walter LaGrand, violated its
international legal obligations to Germany, in its own
right and in its right of diplomatic protection of its
nationals, under Articles 5 and 36 paragraph 1 of the
said Convention;
(2) that the United States, by applying rules of its
domestic law, in particular the doctrine of procedural
default, which barred Karl and Walter LaGrand from
raising their claims under the Vienna Convention on
Consular Relations, and by ultimately executing them,
violated its international legal obligation to Germany
under Article 36 paragraph 2 of the Vienna Convention
to give full effect to the purposes for which the rights
accorded under Article 36 of the said Convention are
intended;
(3) that the United States, by failing to take all measures
at its disposal to ensure that Walter LaGrand was not
executed pending the final decision of the International
Court of Justice on the matter, violated its international
legal obligation to comply with the Order on Provisional
Measures issued by the Court on 3 March 1999, and to
refrain from any action which might interfere with the
subject matter of a dispute while judicial proceedings
are pending;
and, pursuant to the foregoing international legal obligations,
(4) that the United States shall provide Germany a guarantee that it will
not repeat its illegal acts and ensure that, in any future cases of
detention of or criminal proceedings against German nationals, United
States domestic law and practice will not constitute a bar to the
effective exercise of the rights under Article 36 of the Vienna
Convention on Consular Relations.
16 September 1999
Bruno Simma Gerhard Westdickenberg
Co-Agent and Counsel Agent of the Government
of the Federal Republic of Germany
__________ FOOTNOTES
1 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J.
Reports 1999, para. 24.
2 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures,
Order of 9 April 1998, Declaration of President Schwebel, I.C.J. Reports 1998, p. 259.
3 The following is a short description of the endeavours of Germany to outlaw the death penalty at the
international level:
Within the Council of Europe, Germany supported from the outset the endeavours to
encourage member States to abolish the death penalty. Germany played a key role in
the elaboration of Protocol No. 6 of 28 April 1983 to the European Convention on
Human Rights concerning the abolition of the death penalty.
The Federal Republic of Germany is particularly closely linked with the Second
Optional Protocol of 15 December 1989 to the International Covenant on Civil and
Political Rights, aiming at the abolition of the death penalty. On 19 November 1980,
the Federal Government, along with a few other States, presented the "Draft of a
Convention on the Abolition of the Death Penalty in the form of a Second Optional
Protocol to the International Covenant on Civil and Political Rights" to the Third
Committee of the United Nations General Assembly, which is responsible for human
rights issues. Lengthy negotiations involving the substantial commitment of the
Federal Government and its diplomatic missions abroad eventually led to the adoption
of the Second Optional Protocol.
The Federal Government has also worked assiduously within the United Nations
Commission on Human Rights towards the world-wide abolition of the death penalty.
It played an active part in negotiating on the resolutions on the abolition of the death
penalty at the 53rd and 54th sessions of the Commission on Human Rights (1997 and
1998). At the 55th session of the Commission (1999), a resolution to this effect was
sponsored by the European Union as a whole.
During its Presidency of the European Union in the first half of 1999, Germany made
substantial improvements to the substanceof the resolution of the UN Commission on
Human Rights and so was able also to improve the result of the vote as compared to
previous years. Its special success lay in obtaining such marked improvement in the
result of the vote despite tightening the substance of the text, i.e. the rejection of the
death penalty. For the first time, the resolution calls upon parties not to extradite
people to States in which they risk being sentenced to death, to await the outcome of
both national and international legal procedures before executing a person, and to take
account of the consular rights of foreign citizens. These last two points are directly
linked to the present case of the LaGrand brothers.
Thirty of the 53 members of the Commission on Human Rights voted in favour of the
resolution (1998: 26). Thus, for the first time an absolute majority was achieved. 11
members voted against (1998: 13) and 12 abstained (1998: 12). The number of co-
sponsors increased to 72 (1998: 45). On the fringe of the 55th session of the
Commission, Germany, in collaboration with the European Commission, the Council
of Europe and the British Government, organised a podium discussion on the death
penalty's deterrent effect, which most experts on criminology reject. On the basis of
this success in the Commission on Human Rights, the European Union intends to
table a resolution on the death penalty in the UN General Assembly as well.
In parallel to endeavours at the multilateral level, the Federal Government, together
with its partners from the European Union, also calls for the abolition of the death
penalty or for the introduction of moratoria in direct contacts with third States. The Federal Government played an essential part in drawing up the guidelines for
representations the European Union will make on capital punishment towards third
countries, which the General Affairs Council adopted on 29 June 1998. These have
since led to a considerable intensification of joint activities opposing the death penalty
and especially to a pronounced increase in the number of joint démarches in
individual cases of the imposition or execution of the death sentence.
4 LaGrand, supra note 1, para. 25.
5 See infra Part Four, Ch. I. 3. b).
6 ANNEX 1.
7 ANNEX 2.
8 See the statement of facts in the Judgments of the Supreme Court of Arizona State v. (Walter) LaGrand, 734
P.2d 563 (Ariz. 1987), ANNEX 3, at pp. 565 ff.;State v. (Karl) La Grand, 733 P.2d 1066 (Ariz. 1987), ANNEX
4, at pp. 1067 ff.
9 For the transcript of the Aggravation-Mitigation (Sentencing) Hearing, see ANNEX 5. For the Judgment of 14
December 1984, see ANNEX 6.
10 State v. (Walter) LaGrand, 734 P.2d 563 (Ariz. 1987), ANNEX 3;State v. (Karl) LaGrand, 733 P.2d 1066
(Ariz. 1987), ANNEX 4.
11 State v. Karl LaGrand, 733 P.2d 1066 (Ariz. 1987), ANNEX 4, at p. 1069.
12 Karl LaGrand v. Arizona, 484 U.S. 872, 108 S.Ct. 206 (Mem.); Walter LaGrand v. Arizona, 484 U.S. 872,
108 S.Ct. 207 (Mem.), ANNEX 7.
13 See infra, Part III, Ch. V. 3. and the documents annexed thereto.
14 Order of 24 January 1995, ANNEX 8; Order of 16 February 1995,LaGrand v. Lewis, 883 F.Supp. 451
(D.Ariz. 1995), ANNEX 9.
15 LaGrand v. Stewart, 133 F.3d 1253, ANNEX 10, at pp. 1261 f. (9th Cir.).
16 LaGrand v. Stewart, 119 S.Ct. 422 (1998); Rehearing denied on 7 December 1998, 119 S.Ct. 610, ANNEX
11.
17 For the respective "Notice of Consulate Assistance" to Karl LaGrand of 21 December 1998, see ANNEX 12.
18 See for the Warrant of Execution concerning Walter LaGrand, ANNEX 13.
19 Letter of German President Herzog to President Clinton of 5 February 1999, ANNEX 4.
20 See letter of Chancellor Schröder to President Clinton of 2 February 1999, ANNEX 15; letter of Chancellor
Schröder to Arizona Governor Hull of 2 February 1999, ANNEX 16.
21 Letters of Foreign Minister Fischer to U.S. Secretary of State Albright of 27 January 1999, ANNEX 17, and
22 February 1999, ANNEX 18; to Arizona Governor Hull of 27 January 1999, ANNEX 19.
22 Letter of Minister of Justice Däubler-Gmelin to Attorney General Reno of 27 January 1999, ANNEX 20.
23 ANNEX 18.24 Transcript of a video recording of the proceedings before the Clemency Board on 23 February 1999 (lodged
with the Court).
25 LaGrand v. Stewart, 170 F.3d 1158 (9th Cir. 1999), ANNEX 21.
26 LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999), ANNEX 22.
27 Stewart v. LaGrand, 119 S.Ct. 1107 (Stevens and Ginsburg, JJ., dissenting); ANNEX 23.
28 ANNEX 24.
29 See ANNEX 25.
30 ANNEX 26.
31 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J.
Reports 1999, p. 16 (para. 29).
32 Germany v. United States and Jane Dee Hull, Complaint of 3 March 1999 and supporting materials, ANNEX
27.
33 ANNEX 28.
34 Ibid. For the reply of Germany of the same day, see ANNEX 29.
35 LaGrand v. Arizona, 119 S.Ct. 1137 (Breyer and Stevens, JJ., dissenting), ANNEX 30.
36 Stewart v. LaGrand, 119 S.Ct. 1018, ANNEX 31.
37 Germany v. United States, 119 S.Ct. 1016 (Stevens and Breyer, JJ., dissenting), ANNEX 32.
38 ANNEX 33.
39 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J.
Reports 1999, p. 9.
40 596 UNTS, p. 487.
41 Thus the words of Judge Butzner in his concurring opinion in Breard v. Pruett, 134 F.3d 622 (4th Cir. 1998).
42 The letter is reprinted in Annex 22 of the Memorial of the Republic of Paraguay of 9 October 1998 in the
Breard Case. The text of the letter is also to be found in J. Charney/W. Reisman, Agora: Breard. The Facts, 92
American Journal of International Law (1998), pp. 671 f.
43 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures,
Order of 9 April 1998, I.C.J. Reports 1998, pp. 248 ff.
44 Ibid., p. 259.
45 See S. Rosenne, The Law and Practice of the International Court (1997), vol. II, pp. 659 f., with further
references.
46 596 UNTS, p. 261.47 See Bundesgesetzblatt (German Federal Gazette) 1971 II, p. 1285; international source: Multilateral Treaties
deposited with the Secretary-General. Status as at 31 December 1997, UN Doc. ST/LEG/SER.E/16, p. 78. At the
time of ratification, Germany was not yet a member of the United Nations. Therefore, in a communication
deposited on 24 January 1972 with the Registrar of theInternational Court of Justice, who transmitted it to the
Secretary-General pursuant to operative paragraph 3 of Security Council resolution 9 (1946) of 15 October 1946,
the Government of the Federal Republic of Germany stated as follows:
"In respect of any dispute between the Federal Republic of Germany and any
Party to the Vienna Convention on Consular Relations of 24 April 1963 and
to the Optional Protocol thereto concerning the Compulsory Settlement of
Disputes that may arise within the scope of that Protocol, the Federal
Republic of Germany accepts the jurisdiction of the International Court of
Justice. This declaration also applies to such disputes as may arise, within
the scope of article IV of the Optional Protocol concerning the Compulsory
Settlement of Disputes, in connexion with the Optional Protocol concerning
Acquisition of Nationality.
It is in accordance with the Charter of the United Nations and with the terms
and subject to the conditions of the Statute and Rules of the International
Court of Justice that the jurisdiction of the Court is hereby recognized.
The Federal Republic of Germany undertakes to comply in good faith with
the decisions of the Court and to accept all the obligations of a Member of
the United Nations under Article 94 of the Charter."
48 Consolidated text (including the modification of 18 December 1978) in 859 UNTS, p. XII.
49 United States Diplomatic and Consular Staff in Tehran, I.C.J. Pleadings 1980, p. 144.
50 These provisions read as follows:
"Article II:
The parties may agree, within a period of two months after one party has
notified its opinion to the other that a dispute exists, to resort not to the
International Court of Justice, but to an arbitral tribunal.
Article III:
1. Within the same period of two months, the parties may agree to adopt a
conciliation procedure before resorting tothe International Court of Justice.
2. The conciliation commission shall make its recommendations within five
months after its appointment. If its recommendations are not accepted by the
parties to the dispute within two months after they have been delivered,
either party may bring the dispute before the Court by an application.
51 I.C.J. Pleadings 1980, supra note 49, p. 145.
52 I.C.J. Pleadings 1980, ibid., at p. 149 (emphasis added).
53 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 25 (para. 48).
54 I.C.J. Pleadings 1980, supra note 49, at p. 142.
55 "We likewise regret the fact that Paraguay has chosen to disregard the two-month period provided in the
Optional Protocol to the Vienna Convention for the possible resolution of such disputes through conciliation orarbitration." Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request
for the Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR
98/7, para. 1.2. (Mr. Andrews).
56 I.C.J. Reports 1998, supra note 43, at p. 255 (para. 26).
57 I.C.J. Reports 1980, supra note 53, at p. 26 (para. 48).
58 I.C.J. Pleadings 1980, supra note 49, at p. 149.
59 Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A No. 2, p. 11. The authoritative French text reads
as follows: "Un différend est un désaccord sur un point de droit ou de fait, une contradiction, une opposition de
thèses juridiques ou d'intérêts entre deux personnes."
60 Worth to be mentioned is the replacement of the expression "persons" by the more accurate formulation
"parties", East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995,p. 99 (para. 22).
61 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998, pp. 314 f. (para. 87). See also Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 122 (para.
21) and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 17 (para. 22).
62 The Court referred to its judgement in East Timor, I.C.J. Reports 1995, pp. 99 f. (para. 22) where reference is
made to the following earlier decisions: Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A, No. 2, p.
11; Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 27; and Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J.
Reports 1988, p. 27 (para. 35).
63 South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.
64 Referring to Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
Opinion, I.C.J. Reports 1950,p. 74 and East Timor, I.C.J. Reports 1995, pp. 99f. (para. 22).
65 Interpretation of Peace Treaties with Bulgaria, Hungaryand Romania, First Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 74.
66 I.C.J. Pleadings, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,pp. 238 f.
67 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement
of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988,p. 28 (para. 38).
68 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
para 3.10 (Mr. Crook).
69 See infra Part Four.
70 ANNEX 12.
71 See infra Part Four, Ch. I. 3. c).
72 I.C.J. Pleadings 1980, supra note 49, at p. 279.73 Cf. the treatment of this question by the International Court in its Judgment in theHostages Case, supra note
53, at pp. 24 ff. (paras. 46 ff.).
74 See in detail infra Part Four, Ch. I. 3. b) and c).
75 See ibid.
76 See, e.g., Brief for the United States as Amicus Curiae in the Cases of Paraguay v. Gilmore and Breard v.
Greene before the U.S. Supreme Court, 1997 U.S. Briefs 1390, at pp. 40 ff., ANNEX34.
77 Original German text: "Der Internationale Gerichtshof (IGH) hat eine völkerrechtlich verbindliche
Entscheidung getroffen" (see ANNEX 35).
78 See Memorandum in support of Motion for leave to file a Bill of Complaint and Motion for Preliminary
Injunction, ANNEX 27, p. 2.
79 Original German text: "[D]er IGH [hat] nicht nur eine Verhaltensempfehlung ausgesprochen, sondern eine
verbindliche Entscheidung getroffen. Er hat am 3. März 1999, also noch vor der Hinrichtung von Walter
LaGrand am 4. März 1999, dem Antrag der Bundesregierung auf Erlaß vorsorglicher Maßnahmen in vollem
Umfange stattgegeben und den USA durch Beschluß gemäß Artikel 41 IGH-Statut in Verbindung mit Artikel 75
der Verfahrensordnung des IGH folgendes aufgegeben:
`Die USA haben alle ihr zur Verfügung stehenden Maßnahmen zu ergreifen, um
sicherzustellen, daß die Hinrichtung von Walter LaGrand bis zu einer Entscheidung in
der Hauptsache nicht vollstreckt wird.'
Bekanntlich sind die USA der verbindlichen Entscheidung des IGH nicht gefolgt."
Bundestags-Drucksache Nr. 14/784, see ANNEX 36.
80 I.C.J. Pleadings 1972, Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), p. 347.
81 Factory at Chorzów, Merits, 1928, P.C.I.J., Series A, No. 17, p. 47.
82 ANNEX 28.
83 German Complaint, ANNEX 27, p. 2.
84 ANNEX 34, at p. 49.
85 ANNEX 37.
86 ANNEX 38.
87 See infra note 481 and accompanying text.
88 See infra, Part IV, Ch. III. 4. a).
89 See in detail infra Part Six.
90 46 Annuaire de l'Institut de Droit international (1956), p. 360: "Tout différend relatif à l'interprétation ou à
l'application de la présente convention relèvera de la compétence obligatoire de la Cour internationale de Justice
qui, à ce titre, pourra être saisie par requête de toute Partie au différend." The direct impact of this
recommendation on the drafting of the Optional Protocol is described in detail by H. Briggs, The Optional
Protocols of Geneva (1958) and Vienna (1961, 1963) concerning the Compulsory Settlement of Disputes, in:
Recueil d'études de droit international en hommage à Paul Guggenheim(1968), pp. 628 ff.91 44 Annuaire de l'Institut de Droit international (1952), p. 461.
92 Mavrommatis Jerusalem Concessions, 1925, P.C.I.J., Series A No. 5 and Factory at Chorzów, Jurisdiction,
1927, P.C.I.J., Series A, No. 9.
93 Mavrommatis, supra note 92, at p. 48.
94 Chorzów Factory, supra note 92, at p. 24.
95 See, e.g., P. Reuter, Introduction to the Law of Treaties(2nd ed. 1995), p. 96.
96 Chorzów Factory, supra note 92, at p. 24.
97 See, e.g., the very comprehensive presentation by P. You, Le préambule des traités internationaux(1941);
exactly on the point in question here see also P. You, L'interprétation des traités et le rôle du préambule des
traités dans cette interprétation, 20 Revue de Droit International(1942), pp. 25 ff. Cf. also J. Corriente Cordoba,
Valoración jurídica de los preámbulos de los tratados internacionales (1973); G. Fitzmaurice, The Law and
Procedure of the International Court of Justice 1951-54: Treaty Interpretation and other Treaty Points, 33British
Yearbook of International Law (1957), pp. 227 ff.; I. Sinclair,The Vienna Convention on the Law of Treaties (2d
ed. 1984), pp. 127 ff.; H. Köck, Vertragsinterpretation und Vertragsrechtskonvention, p. 30 Fn. 63 (with
references to international jurisprudence). See also in detail already J. Basdevant, La conclusion et la rédaction
des traités et des instruments diplomatiques autres que les traités, 15 Recueil des Cours (1926-V), pp. 563 ff.
98 See in particular I.C.J. Pleadings 1980, supra note 49, at pp. 142 ff.
99 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
para. 311 (Mr. Crook).
100 I.C.J. Reports 1998, supra note 43, p. 256 (para. 31).
101 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 142 (para. 283) recalling the finding of the Permanent Court of
International Justice in Chorzów Factory, supra note 92, p. 21.
102 ICJ Reports 1998, supra note 61, at p. 18 (para. 259) and at p. 123 (para. 24).
103 See already the Permanent Court of International Justice in its Judgment of 25 August 1925 inCertain
German Interests in Polish Upper Silesia, Jurisdiction, 1925, P.C.I.J., Series A, No. 6, p. 16: "It follows that the
differences of opinion contemplated by Article 23 [jurisdictional clause which provided for the competence of
the Court in cases "résultant de l'interprétation et del'application" of a certain treaty] ... may also include
differences of opinion as to the extent of the sphere of application ..." (recalled in Factory at Chorzów,
Jurisdiction, 1927, P.C.I.J., Series A, No. 9, pp. 20 f.).
104 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J.
Reports 1999, para. 23, referring to earlier decisions.
105 Ibid., para. 24.
106 Vienna Convention on Consular Relations (Paraguay v. United States of America), Memorial of the
Republic of Paraguay (9 October 1998), p. 28 (para. 3.19).
107 P. Reuter, Introduction to the Law of Treaties (2d ed. 1995), p. 96.
108 Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J., Series A/B, No. 79, p. 199
(emphasis added).109 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August
1972, I.C.J. Reports 1972, p. 30; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim
Protection, Order of 12 July 1973, I.C.J. Reports 1973, p. 313.
110 Fisheries Jurisdiction (Federal Republic of Germanyv. Iceland), Merits, Judgment, I.C.J. Reports 1974, p.
203 (para. 72)
111 The following presentation confines itself to the quotation of the relevant passages from the Judgment in
Germany v. Iceland. However, the statements of this Court cited in the following are also to be found - in
identical terms - in the Judgment on the respective dispute between the United Kingdom and Iceland (ibid., 21
f.).
112 Ibid., p. 190 (para. 39).
113 Ibid., para. 40.
114 Ibid.
115 Ibid.
116 Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 259 f. (para. 23).
117 Ibid. See also Rosenne, supra note 45, p. 602: "In addition to that `mainline' or `merits' jurisdiction and the
related incidental jurisdiction, the Court possesses inherent jurisdiction to control all aspects of the proceedings
themselves."
118 See infra 1. and 2.
119 See infra 3. Since nationality is also a constituent element of Art. 36 of the Vienna Convention itself, the
existence of this legal bond also constitutes a basic condition of the assumption of a breach of a treaty obligation
on the part of the United States vis-à-vis Germany.
120 Cf. the letter of the Solicitor General to the U.S. Supreme Court, ANNEX 28.
121 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, p. 253 (para. 32).
122 Ibid., at pp. 253 f. (para. 32).
123 Ibid., at p. 254 (para. 36).
124 Ibid., at pp. 254 f. (para. 36).
125 See supra Part Two (Statement of Facts).
126 See supra Part Two, para. 2.06.
127 See for the factual and legal background of this case, inter alia, R. Lillich, The Soering Case, 85 American
Journal of International Law (1991), pp. 128 ff. and J. Quigley/S. Shank, Death Row as a Violation of Human
Rights: Is it Illegal to Extradite to Virginia?, 30 Virginia Journal of International Law(1990), pp. 24 ff. On
subsequent developments - in particular the assurance on the part of the United States that Soering would not
face the death penalty if extradited - see R. Steinhardt, Recent Developments in the Soering Litigation, 11
Human Rights Law Journal (1990), pp. 453 ff.
128 I.C.J. Reports 1998, supra note 61, pp. 296 f. (paras. 38 f.).129 Memorandum, ANNEX 27, pp. 3 f.
130 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), ICJ Reports 1998, p. 26 (para. 46) referring
to Border and Transborder Armed Actions (Nicaragua v.Honduras), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1988, p. 95 (para. 66); Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272
(para. 62) and Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38.
131 K. Highet, The Emperor's New Clothes: Death Row Appeals to the World Court? The Breard Case As a
Miscarriage of (International) Justice, in: In Memoriam Judge José Maria Ruda, manuscript, pp. 14 f. (emphasis
added, footnotes omitted), ANNEX 39.
132 One consequence was, of course, that Germany had to adapt and alter one of its submissions which was
indeed affected by the execution, due to the very nature of the death penalty.
133 I.C.J. Reports 1974, supra note 116, p. 256 (para. 11) (emphasis added).
134 Application, Paragraph 15.
135 See copies of the certificates of birth of the brothers as well as of the passport of their mother, Ms. Emma M.
Gebel, in ANNEX 40.
136 "Durch Geburt erwirbt das eheliche Kind eines Deutschen die Staatsangehörigkeit des Vaters, das
uneheliche Kind einer Deutschen die Staatsangehörigkeit der Mutter"; cf. A. Makarov, Deutsches
Staatsangehörigkeitsrecht. Kommentar (1966), p. 43.
137 ANNEX 41.
138 See, e.g., Makarov, supra note 136, p. 43: "Der § 4 des Reichs- und Staatsangehörigkeitsgesetzes bildet eine
der Grundlagen des deutschen Staatsangehörigkeitsrechts, indem er das reine jus sanguinis-Prinzip proklamiert."
[§ 4 of the RuStAG, being based on the pure jus sanguinis principle, is one of the pillars of the German law of
nationality].
139 See in particular Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, pp. 20 ff.
140 J. Rezek, Le droit international de la nationalité, 198Recueil des Cours (1986-III), p. 360.
141 See supra Part Two, note 6 and 7 and accompanying text.
142 Alien Registration Cards Nos. A-14 865 867 and A-14 865 868.
143 ANNEX 42.
144 See, e.g., the letter of the U.S. Immigration and Naturalization Service to the German Consulate in Los
Angeles of 10 December 1992, ANNEX 43.
145 Vienna Convention on Consular Relations (Paraguay v. United States of America), supra note 43, at pp. 256
ff. (paras. 31 ff.).
146 LaGrand (Germany v. United States of America), Provisional measures, Order of 3 March 1999, I.C.J.
Reports 1999, p. 16 (para. 29).
147 I.C.J. Pleadings, United States Diplomatic and Consular Staff in Tehran, p. 174.
148 L. Lee, Consular Law and Practice (2d ed. 1991), p. 134.149 Ibid., at p. 136; J. Steinkrüger, in: G. Hecker/G. Müller-Chorus (eds.), Handbuch der konsularischen Praxis
(2d ed. 1999), § 9, margin note 4.
150 See G. Hackworth, Digest of International Law, vol. IV (1942), pp. 836 f.
151 Cabled instruction to the U.S. Consul in Syria, reprinted in: E. McDowell (ed.), Digest of United States
Practice in International Law 1975, pp. 249 f.
152 W. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31
Vanderbilt Journal of Transnational Law(1998), p. 275.
153 These cases include the arrest and detention of German nationals in California (Ms. Katharina Grant),
Connecticut (Ms. Susann Hanisch), Florida (Mr. Sven Olaf Diemer, Mr. Thomas Eichner, Mr. Ronny Wirth),
Oregon (Ms. Marieluise Veronika Kashefi), and Virginia (Mr. Otto Bresselau von Bressendorf, Ms. Barbara
Lichtenberg).
154 Vienna Convention on Consular Relations (Paraguay v. United States), Provisional Measures, Order of 9
April 1998, I.C.J. Reports 1998, p. 248.
155 See also the cases reported by Aceves, supra note 152, at pp. 267 ff.; R. Doherty, Foreign Affairs v.
Federalism: How State Control of Criminal Law Implicates Federal Responsibility Under International Law, 82
Virginia Law Review (1996), pp. 1318 ff.; S. Shank/J. Quigley, Foreigners on Texas's Death Row and the Right
of Access to a Consul, 26 St. Mary's Law Journal (1995), pp. 722 ff.
156 See the case of the Canadian Stanley Faulder executed in Texas on 17 June 1999; Faulder v. Johnson, 178
F.3d 741 (5th Cir.), cert. denied, 119 S.Ct. 2363; Faulder v. Johnson, 81 F.3d 515 (5th Cir.), cert. denied under
the name Faulder v. Texas, 119 S.Ct. 909 (1999).
157 Request for an Advisory Opinion No. OC-16 to the Inter-American Court of Human Rights, submitted by
the Government of the United Mexican States of 17 November 1997, ANNEX 44. Oral hearings in this case
have been held on 12 and 13 June 1998.
158 Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS, p. 331.
159 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,pp. 21 f. (para. 41),
quoted also in Maritime Delimitation and Territorial Questions between Qatar and Bahrein, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995,p. 18 (para. 33): "Il peut être fait appel à titre complémentaire à des
moyens d'interprétation tels les travaux préparatoires et les circonstances dans lesquelles le traité a été conclu."
See also I. Sinclair, The Vienna Convention on the Law of Treaties (2d ed. 1984), p. 19 (with further references):
"[T]here is now strong judicial support for the view that the rules of treaty interpretation incorporated in the
Convention are declaratory of customary law."
160 Draft articles on consular relations adopted by the International Law Commission at its thirteenth session,
UN Doc. A/CONF.25/6, in: United Nations Conference on Consular Relations, Official Records, vol. II, UN
Doc. A/CONF.25/16/Add. 1, p. 24 (emphasis added).
161 Yearbook of the International Law Commission1960, vol. I, p. 51 (para. 25).
162 The text is based on a proposal by the United Kingdom, UN Doc. A/CONF.25/C.2/L.107, in: United Nations
Conference on Consular Relations, Official Records, vol. II, UN Doc. A/CONF.25/16/Add.1, p. 85 (emphasis
added). See also the discussion of the UK amendment to the International Law Commission's Draft in the 18th
meeting of the Second Committee of the 1963 Conference, in:United Nations Conference on Consular
Relations, Official Records,vol. I, UN Doc. A/CONF.25/16, p. 346 (para. 47). The amendment was adopted by
42 votes to 14, with 11 abstentions; ibid., 19th Meeting of the Second Committee, pp. 347 f.
163 By 33 to 32, with 16 abstentions, see 12th plen. mtg., Agenda Item 1, United Nations Conference on
Consular Relations, Official Records, vol. I, UN Doc. A/CONF.25/16, p. 40 (paras. 2-9).164 Ibid., para. 7.
165 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
para. 3.27 (Mr. Crook).
166 See S. Shank/J. Quigley, Obligations to Foreign Nationals Accused of Crime in the United States: A Failure
of Enforcement, 9 Criminal Law Forum (1999), p. 108.
167 1997 U.S. Briefs 1390, ANNEX 34, at p. 39.
168 Cf. L. Tribe, American Constitutional Law (2d ed. 1988), pp. 171 ff.; J. Liebman/R. Hertz, Federal Habeas
Corpus Practice and Procedure (3d ed. 1998). For a historical overview of the jurisprudence of the Supreme
Court on the question, see Coleman v. Thompson, 501 U.S. 722, 744 ff. (1991) (O'Connor, J.);Murray v.
Carrier, 477 U.S. 478 (1986), at 485 (O'Connor, J);Wainwright v. Sykes, 433 U.S. 72, 77 ff. (1977) (Rehnquist,
J., now C.J.).
169 See Article III of the U.S. Constitution. Cf. also theTenth Amendment of 1791 which reads as follows: "The
powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people." For details concerning the borderline between federal and state
jurisdiction drawn by the Supreme Court see L. Tribe, American Constitutional Law(2d ed. 1988), pp. 162 ff.
170 404 U.S. 270, 275 (1971).
171 Ibid., at pp. 276, 278.
172 Coleman v. Thompson, 501 U.S. 722, 750 (1991) (O'Connor, J.); see alsoMurray v. Carrier, 477 U.S. 478,
494 (1986) (O'Connor, J.);Engle v. Isaac, 456 U.S. 107 (1982), at p. 134, n. 43 (O'Connor, J.); Francis v.
Henderson, 425 U.S. 536, 542 (1976) (Stewart, J.);Wainwright v. Sykes, 433 U.S. 72, 87, 90 (1977) (Rehnquist,
J., now CJ.).
173 Murray v. Carrier, 477 U.S. 478, 488 (1986) (O'Connor, J.).
174 United States v. Frady, 456 U.S. 152, 170 (1982) (O'Connor, J.).
175 Sykes, at p. 91.
176 Murray v. Carrier, 477 U.S. 478, 488 f. (1986) (O'Connor, J.); see alsoEngle v. Isaac, 456 U.S. 107, 133 f.
(1982) (O'Connor, J).
177 Carrier, at p. 488 (O'Connor, J.), footnote added, also cited in Coleman, at p. 752 (O'Connor, J.).
178 Strickland v. Washington, 466 U.S. 668, 690 (O'Connor, J.).
179 Coleman, at p. 771.
180 Art. VI cl. 2 U.S. Constitution. See also Breard v. Greene, 118 S.Ct. 1352 (1998), 37 International Legal
Materials (1998), p. 828; Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion).
181 Carrier, at p. 496 (O'Connor, J.): "[I]n an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default." See also Teague v. Lane, 489 U.S. 288, 313
(O'Connor, J.); Sawyer v. Whitley, 505 U.S. 333, 335 ff. (1992) (Rehnquist, C.J.).
182 Sawyer, at p. 336. For an application of this doctrine in the LaGrand case, see Karl LaGrand v. Stewart, U.S.
District Court (D. Arizona), 23 February 1999, ANNEX 45, at p. 14.183 Sawyer, at pp. 345 ff. (Rehnquist, C.J.).
184 Teague v. Lane, 489 U.S. 288, 311 ff. (1989). Cf. ibid., at p. 313: "[W]e believe it unlikely that many such
components of basic due process have yet to emerge."
185 See infra note 198 for a judgment concerning a similar provision in a legislative act.
186 See, e.g., Karl LaGrand v. Stewart, U.S. District Court (D. Arizona), 23 February 1999, ANNEX 45, pp. 6 f.
187 Pub.L. No. 104-132, 110 Stat. 1214 (1996).
188 28 U.S.C. § 2254(a), (e) (2) (ii) (Supp. 1998):
"If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that -
(A) the claim relies on -
(i) ... .
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense."
189 Breard, 37 International Legal Materials826, 828 (1998): "[A]lthough treaties are recognized by our
Constitution as the supreme law of the land, that status isno less true of provisions of the Constitution itself, to
which rules of procedural default apply." The AEDPA "prevents Breard from establishing that the violation of
his Vienna Convention rights prejudiced him."
190 28 U.S.C. 2253 (c) reads:
"(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from -
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; ...
(B) ... .
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right."
191 Ohio v. Loza, 1997 WL 634348 (Ohio App. 12 Dist.), p. 2. This judgment denied a motion concerning the
violation of Art. 36 at state postconviction proceedings which are reserved for the violations of constitutional
rights. See also Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993); Murphy v. Netherland, 116 F.3d 97, 100
(1997).
192 LaGrand v. Stewart, 133 F.3d 1253, 1261 (9th Cir. 1998), ANNEX 10.
193 Sawyer, at pp. 345 (1992).194 LaGrand v. Stewart, 133 F.3d 1253, 1262 (9th Cir. 1998), ANNEX 10.
195 119 S.Ct. 422 (1998).
196 LaGrand v. Stewart, 170 F.3d 1158, 1161 (9th Cir. 1999), ANNEX 21:
"Federal habeas review is not available on this claim unless LaGrand can
show cause for his default and actual prejudice. ... Having been `presented in
a prior application' for federal habeas relief under § 2254, LaGrand's
arguments cannot be presented in an [extraordinary] SOS petition. See 28
U.S.C. § 2244 (b) (1)."
Previously, the Arizona state court had dismissed the claim because it found it
procedurally barred under an Arizona Rule of Criminal Procedure, 32.2 (a) (3), which
provides: "A defendant shall be precluded from ... relief ... based upon any ground ...
that has been waived at trial, appeal, or in any previous collateral proceeding."
197 Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996); cert. denied, 519 U.S. 995, 117 S.Ct. 487. To the
same effect, see Murphy v. Netherland, 116 F.3d 97, 100 f. (4th Cir. 1997),cert. denied, 118 S.Ct. 26; Breard v.
Pruett, 134 F.3d 615, 619 f. (4th Cir. 1998).
198 Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997) referring to 28 U.S.C. § 2253 (c) (2).
199 Ibid. See also Breard v. Pruett, 134 F.3d 615, 619 f. (4th Cir. 1998); Breard v. Netherland, 949 F. Supp.
1255, 1263 (E.D. Va. 1996).
200 See LaGrand v. Stewart, 170 F.3d 1158, 1161 (9th Cir.), ANNEX 21;La Grand v. Stewart, 133 F.3d 1253,
1262 (9th Cir.), ANNEX 10, cert. denied, 119 S.Ct 422 (1998), ANNEX 11.
201 For a detailed presentation of this claim, see infra, Part Four, Ch. I 3 c). For evidence on the effect of
procedural default on challenges of violations of Art. 36 Vienna Convention in other cases, see Shank/Quigley,
supra note 155, at pp. 722 ff.. See, in particular, Santana v. State, 714 S. W. 2d 1 (Tex. Crim. App. 1986)
(mitigating circumstances not raised; cf. Shank/Quigley, ibid.); Faulder v. State, 745 S. W.2d 327 (Tex. Crim.
App. 1987) (lack of contact with the Consulate prevented Faulder from presenting evidence on his quality as a
responsible parent and on his organic brain damage, see Shank/Quigley, ibid., at p. 724).
202 People v. Dorado, 62 Cal. 2d 338, at p. 351, 398 P.2d 361, at pp. 369 f. (Tobriner J.), cited by the U.S.
Supreme Court in Miranda v. Arizona, 384 U.S. 436, 470 (1966) (Warren, C.J.).
203 Shank/Quigley, Obligations to Foreign Nationals,supra note 166, at p. 127.
204 Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998).
205 Aceves, 31 Vanderbilt Journal of Transnational Law(1998), pp. 277 f. (footnote omitted), citingU.S. v.
Calderon-Medina, 521 F.2d 529, 531 (9th Cir. 1979);U.S. v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir.
1980) (finding that prejudice had been shown);Waldron v. Immigration and Naturalization Service, 17 F.3d 511,
514 ff. (2d Cir. 1993).
206 Shank/Quigley, supra note 155, at p. 751 (footnote omitted).
207 Shank/Quigley, supra note 166, at p. 110.
208 K. Highet, The Emperor's New Clothes: Death Row Appeals to the World Court? The Breard Case As a
Miscarriage of (International) Justice, in: In Memoriam Judge José Maria Ruda, manuscript, p. 6, ANNEX 39.
209 See Republic of Paraguay v. Allen, 949 F.Supp. 1269, 1272 (E.D. Va. 1996),aff'd, 134 F.3d 622 (4th Cir.
1998), cert. denied, 118 S.Ct. 1352, 1356 (1998), reprinted in 37International Legal Materials(1998), p. 826;Germany v. U.S., 119 S.Ct. 1016, 1017 (per curiam);United Mexican States v. Woods, 126 F.3d 1220, 1223 (9th
Cir. 1997), but see Germany v. U.S., 119 S.Ct. 1016, p. 1017 (Souter, J. concurring; Ginsburg, J. joining): "I do
not rest my decision to deny leave to file the bill of complaint on any Eleventh Amendment principle"; Aceves,
supra note 152, at p. 296 (asserting that the Supremacy Clause in Art. VI cl. 2 of the U.S. Constitution, which
determines that treaties are "the supreme law of the land", "provides one possible basis for challenging state
immunity from suit under the Eleventh Amendment").
210 See also Shank/Quigley, supra note 155, at p. 748, speaking of "the need for a system to ensure that the
United States complies with the Vienna Convention."Id., supra note 166, at p. 122: The use of procedural
default rule "violates, in particular, paragraph 2 of article 36, which says that while article 36 issues operate in
the context of domestic procedures, those procedures must allow full effect to the purposes of consular access."
211 Manuscript, supra note 208, at p. 7.
212 On the legally binding character of an Order on Provisional Measures, see infra Ch. III.
213 Application of the Convention on the Prevention an Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993,Sep. Op. Shahabuddeen, I.C.J. Reports 1993, p. 368, citing E.
Dumbauld, Interim Measures of Protection in International Controversies (1932), p. 161.
214 Memorandum of Law in Support of the Petitioner's Writ of Habeas Corpus by a Person in State Custody,
LaGrand v. Lewis, 8 March 1993, ANNEX 46, p. 68 (describing how the German consulate would have assisted
immediately had they been contacted when the LaGrands were arrested in 1982).
215 Ibid., at pp. 67 f. (describing how immediately upon being informed of the LaGrands' situation, German
consular officials travelled to Arizona to visit themand thereafter remained in "constant communication" and
offered the support of the Federal Republic of Germany in opposing their capital sentences).
216 See Vienna Convention, Art. 5 (i): "Consular functions consist in: ... representing or arranging appropriate
representation for nationals of the sending State before the tribunals and other authorities of the receiving State";
see also M. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to
Consul, 18 Michigan Journal of International Law(1997), p. 565; Shank/Quigley,supra note 155.
217 Gesetz über die Konsularbeamten, ihre Aufgaben und Befugnisse (Konsulargesetz) of 11 September 1974,
Bundesgesetzblatt (Federal Gazette) 1974, vol. I, p. 2317. In the German original, the respective paragraphs
read:
"§ 1. Die Konsularbeamten (Berufskonsularbeamte oder
Honorarkonsularbeamte) sind berufen, ... Deutschen sowie inländischen
juristischen Personen nach pflichtgemäßem Ermessen Rat und Beistand zu
gewähren. ...
§ 7. Die Konsularbeamten sollen in ihrem Konsularbezirk deutsche
Untersuchungs- und Strafgefangene auf deren Verlangen betreuen und ihnen
insbesondere Rechtsschutz vermitteln."
218 Runderlaß as of 15 October 1998, Ch. I guideline 1, with an English translation of the relevant parts,
ANNEX 47. This Runderlaß consolidates earlier versions dating back to 1975.
219 Ibid., Ch. II guideline 1.
220 Ibid., Ch. II guideline 4 b) and c).
221 Ibid., Ch. II guideline 5.
222 For details see infra note 248 and accompanying text.223 Brief of Amici Curiae Republic of Argentina, Republic of Brazil, Republic of Ecuador and Republic of
Mexico in Support of Petition for a Writ of Certiorari, Paraguay v. Gilmore, ANNEX 48, at p. 1.
224 L. Bilionis/R. Rosen, Lawyers, Arbitrariness, and the Eighth Amendment, 75 Texas Law Review (1997), p.
1315.
225 In Arizona, the trial judge presides over the penaltyphase and alone decides the sentence. In other states the
jury from the merits phase also decides sentencing, or the court empanels a new jury for the sentencing phase.
226 Godfrey v. Georgia, 446 U.S. 420, 427-428 (states must specifically define crimes or aggravating
circumstances for which death is a possible punishment); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (the
execution of a person under 16 years of age is prohibited by the Eighth and Fourteenth Amendments); Ford v.
Wainwright, 477 U.S. 399, 409-410 (1986) (the Eight Amendment prohibits a state from carrying out a sentence
of death upon a prisoner who is insane).
227 Lockett v. Ohio, 438 U.S. 586, 604 (1978). Arizona's death penalty statute includes a non-exhaustive list of
aggravating and mitigating factors which may be introduced at the sentencing phase. A.R.S. § 13-703.01(A).
228 State v. Rogovich, 932 P.2d 794, 800-801 (1997).
229 Lockett v. Ohio, 438 U.S. 586, 604-605 (1978).
230 State v. Barreras, 181 Ariz. 516, 892 P.2d 852, 857-858 (1995).
231 Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality);see also Penry v. Lynaugh, 492 U.S. 302,
328, (1989) ("in order to ensure reliability in the determination that death is the appropriate punishment in a
particular case, the jury must be able to consider and give effect to any mitigating evidence relevant to a
defendant's background, character, or the circumstances of the crime."); McCleskey v. Kemp, 481 U.S. 279, 304
(1987); Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) (plurality).
232 McCleskey v. Kemp, 481 U.S. 279, 304 (1987); Lockett v. Ohio, 438 U.S. 586, 603-605 (1978);Woodson v.
North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991 (1976).
233 Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell and Stevens, JJ.)
(holding that constitutional imposition of the death penaltydepends on "consideration of the character and record
of the individual offender and the circumstances of the particular offense"); see also California v. Brown, 479
U.S. 538, 545 (1987) (concurring opinion of O'Connor, J.);Lockett v. Ohio, 438 U.S. 586, 603-605 (1978).
234 Hendricks v. Calderon, 864 F. Supp. 929, 944-945 (N.D. Cal. 1994),aff'd by 64 F.3d 1340 (9th Cir. 1995),
cert. denied, 517 U.S. 1111 (1996); Affidavit of Scharlette Holdman, Ph.D, ANNEX 49, paras. 7, 18; J. Tomes,
Damned if you do, Damned if You Don't: The Use of Mitigation Experts in Death Penalty Litigation, 24
American Journal of Criminal Law (1997), p. 361; L. Bilionis/R. Rosen,supra note 224, at p. 1317: defence
lawyers must "unearth, develop, present, and insist on the consideration of those `compassionate or mitigating
factors stemming from the diverse frailties of humankind.'" (Citations omitted).
235 Lockett v. Ohio, 438 U.S. 586, 604-605 (1978).
236 Affidavit of Scharlette Holdman, Ph.D. (Mitigation Specialist with the Center for Capital Assistance, a non-
profit organisation providing legal assistance to court-appointed counsel in capital cases involving indigent
defendants), ANNEX 49, paras. 7, 10-12; J. Tomes, supra note 234, at p. 361 (1997).
237 Affidavit of Scharlette Holdman, ANNEX 49, paras. 7-12; Affidavit of Robert Hirsh, Esq., ANNEX 50,
paras. 10-13.
238 State v. Perez, 148 Ill. 2d 168, 193; 592 N.E. 2d 984, 996 (1992); see also S. Bright, Neither Equal nor Just:
The Rationing and Denial of Legal Services to the Poor when Life and Liberty are at Stake, Annual Survey of
American Law 1997, p. 792 (describing a case where after one defendant was sentenced to death without anymitigating evidence of his mental retardation having been put before the jury, one juror read newspaper accounts
saying that the defendant was mentally retarded and stated that she would not have voted for the death penalty if
she had known).
239 S. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer,
103 Yale Law Journal (1994), p. 1837, n. 10-14 and accompanying text (discussing cases where failure to
present mitigating evidence contributed to death sentencesfor severely retarded and mentally ill defendants).
240 Transcript of Aggravation-Mitigation (sentencing) Hearing,State of Arizona v. LaGrand and LaGrand (17
Sept. 1984), ANNEX 5.
241 Walter LaGrand's attorney also called their half-sister to testify, but she was not asked, and probably did not
recall sufficiently to testify, about the early years in Germany.
242 Affidavit of Scharlette Holdman, ANNEX 49, paras. 10-12; Affidavit of Robert Hirsh, ANNEX 50,
paras. 10-13 (commenting on inadequacy of mitigation case due in part to lack of collateral evidence);State v.
Medrano, 185 Ariz. 192, 194, 914 P.2d 225, 226 (1996) (finding expert opinion based solely on defendant's own
necessarily self-serving description insufficient to mitigate);Hendricks v. Calderon, 864 F. Supp. 929, 944 ff.
(N.D. Cal. 1994), aff'd by 64 F.3d 1340 (9th Cir. 1995),cert. denied, 517 U.S. 1111, 134 L.Ed. 2d 485, 116 S.Ct.
1335 (1996) (granting writ of habeas corpus vacating death sentence because ineffective assistance of counsel in
presenting inadequate mitigation case where,inter alia, no independent corroborating was presented of
defendant's traumatic childhood).
243 State of Arizona v. Walter LaGrand, Third Petition for Post-Conviction Relief, 2 March 1999, pp. 1-9, and
exhibits 1-20, ANNEX 51.
244 Ibid.
245 Ibid.
246 Ibid.
247 Ibid.
248 Not only was this information vitally important in andof itself, but it was because of vital statistics located
in these records that subsequent counsel for Walter LaGrand was able to locate his father and step-father and
obtain affidavits from them containing additional mitigating evidence. Affidavit of Kelley Henry, ANNEX 52,
para. 4.
249 Affidavit of Scharlette Holdman, ANNEX 49, para. 8.
250 State v. Wallace, 773 P.2d 983, 986 (1989),cert. denied, 494 U.S. 1047 (1990).
251 951 P.2d 869, 884-86 (1997).
252 State v. Richmond, 886 P.2d 1329, 1338 (1994) (death sentence reduced to life imprisonment because of
mitigating evidence of defendant's mental disorder and changed character while in prison); see also State v.
Mauro, 766 P.2d 59, 69 (1988) (defendant's mental disorder was a "sufficiently substantial" mitigating
circumstance to reduce death sentence).
253 Affidavit of Robert Hirsh, Esq., ANNEX 50, paras. 10-13; Affidavit of Scharlette Holdman, ANNEX 49,
paras. 11-12.
254 Memorandum of Law in Support of the Petitioner's Writ of Habeas Corpus (8 March 1993), ANNEX 46, at
pp. 23 ff., 106 ff., 130 and Appendix Exhibit I, Affidavit of Dr. Timothy J. Derning.
255 For importance of corroborating mitigation evidence see sources citedsupra note 242.0 Affidavit of Kelley Henry, ANNEX 52, para. 6.
1 Affidavit of Jeannette Laura Sheldon (3 March 1999), ANNEX 53, para. 6.
2 See McFarland v. Scott, 512 U.S. 1256, 1256 (1994) (dissenting opinion of Blackmun, J.) (describing capital
cases as "more costly and difficult to litigate than ordinary criminal trials"); S. Bright, supra note 239, at pp.
1839 f., 1859, 1863.
3 Bilionis/Rosen, supra note 234, at pp. 1315 (emphasis added).
4 See Bilionis/Rosen, ibid., at pp. 1316 ff.; Bright, supra note 239.
5 Leroy D. Clark, All Defendants, Rich and Poor, Should Get Appointed Counsel in Criminal Cases: The Route
to True Equal Justice, 81 Marquette Law Review (1997), pp. 48 f.; Bright, supra note 234, at p. 1835.
6 Clark, supra note 261, at p. 50; Bright, supra note 234.
7 Even U.S. courts held that view; see, e.g., State v. LaGrand, 733 P.2d, ANNEX 4, at p. 1069.
8 Bilionis/Rosen, supra note 234, at pp. 1304 ff., n. 13 ff. (listing articles by scholars, students, capital defenders,
jurists and journalists re ineffective counsel for capital defendants); Bright,supra note 234, at p. 1835, n. 10-14
and accompanying text; Panel Discussion: The Death of Fairness? Counsel Competency and Due Process in
Death Penalty Cases, 31 Houston Law Review (1994), p. 1105.
9 512 U.S. 1256 (1994) (dissenting opinion of Blackmun, J.); Bright,supra note 234, at p. 1837 (calling
"competent representation by counsel" the "most fundamental component of the adversary system").
10 McFarland v. Scott, ibid., at p. 1259; Bright, supra note 234, at pp. 1837, 1862.
11 McFarland v. Scott, ibid., at p. 1263.
12 Ibid., at pp. 1259-61; Bright, supra note 238, at pp. 789 ff., 829 ff. (describing cases of drunk, dishonest and
unconscious capital defence lawyers); Bright,supra note 239, at p. 1835 f. (describing case where woman
sentenced to death for killing her abusive husband was represented by an attorney who appeared in court so
intoxicated that he was sent to jail in contempt of court; the next morning both attorney and client were produced
from the jail, and the trial recommenced).
13 Justice T. Marshall, Remarks on the Death Penalty Made at the Judicial Conference of the Second Circuit, 86
Columbia Law Review (1986), pp. 3 f.
14 Affidavit of Kelley Henry, ANNEX 52, para. 4.
15 Affidavit of Tirso Molina Lopez, ANNEX 54, paras. 18, 20-23.
16 Affidavit of Masie LaGrand, ANNEX 55, paras. 6, 9.
17 Ibid., para. 7.
18 Ibid., para. 13.
19 Ibid., para. 11.
20 Ibid., paras. 11 ff.
21 Ibid., para. 13.22 Declaration of Pansy Shields, 2 March 1999, ANNEX 56.
23 Declaration of Ada I. Berrios, 2 March 1999, ANNEX 57, para. 6.
24 Ibid. (listing the background records she was able to obtain on Walter LaGrand, including 16 pages of
assessment and evaluation reports from social workers at VisionQuest Youth Placement Facility; 75 pages of
assessment and evaluation reports from Arizona Boys Ranch; 9 pages of high school records and transcripts).
25 Memorandum of Law in Support of the Petitioner's Writ of Habeas Corpus, 8 March 1993, ANNEX 46,
Appendix Exhibit N (lodged with the Court).
26 Ibid., Appendix Exhibit I, Affidavit of Dr. Timothy J. Derning, p. 4 (listing interview with Emma LaGrand as
one of the documents he reviewed); Third Petition for Post-Conviction Relief, 2 March 1999, ANNEX 51,
Exhibit 2 (Barstow interview).
27 Memorandum of Law in Support of the Petitioner's Writ of Habeas Corpus, 8 March 1993, ANNEX 46, at pp.
23 ff., 106 ff., 130 and Appendix Exhibit I, Affidavit of Dr. Timothy J. Derning.
28 Ibid., Appendix Exhibit N (YOU and VisionQuest record),lodged with the Court; Third Petition for Post
Conviction Relief, 2 March 1999, ANNEX 51, Exhibit 2(Barstow interview); Shields Affidavit, ANNEX 56,
paras. 3 ff., 9 f.; LaGrand Affidavit, ANNEX 55; paras. 13 f.
29 In the trial of the LaGrand brothers, the jury received instructions on felony murder, which requires that
defendant either be the killer or be an active participant in the killing to receive death, and first degree murder,
which requires premeditation. The jury returned a general verdict, not indicating under which crime it had
convicted. If the crime was committed impulsively by Karl alone, then under either charge Walter was not
eligible for the death penalty.
30 Memorandum of Law in Support of the Petitioner's Writ of Habeas Corpus,8 March 1993, ANNEX 46; Third
Petition for Post-Conviction Relief, 2 March 1999, ANNEX 51, at pp. 9 f.
31 State v. LaGrand, 733 P.2d 1066, 1068 (1987).
32 Memorandum of Law in Support of the Petitioner's Writ of Habeas Corpus,8 March 1993, ANNEX 46.
33 Ibid., Appendix Exhibit B (Affidavit of David Gerson).
34 R. Jennings/A. Watts (eds.), Oppenheim's International Law, vol. I (9th ed. 1992), p. 934.
35 Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), vol. 2, p. 184.
36 Mavrommatis Palestine Concessions, Judgment, P.C.I.J., 1924, Serie A, No. 2,p. 12.
37 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970,p. 32 (para. 33).
38 Reparation for Injuries Suffered in the Service of theUnited Nations, Advisory Opinion, I.C.J. Reports 1949,
pp. 181f.; confirmed in Barcelona Traction, supra note 293, at p. 32 (para. 35).
39 Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16; confirmed in Barcelona
Traction, supra note 293, at 33 (para. 36).
40 See supra Part Three, Ch. V. 3.
41 Oppenheim's International Law, supra note 290, p. 905.42 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21 f. (para. 41),
quoted also in Maritime Delimitation and Territorial Questions between Qatar and Bahrein, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995,p. 18 (para. 33)
43 Apart from the passages quoted in note 298, cf. Rights of Nationals of the United States of America in
Morocco, Judgment of August 27th, 1952, I.C.J.Reports 1952, p. 196 .
44 1997 U.S. Briefs 1390, ANNEX 34, at p. 37.
45 Oppenheim's International Law, supra note 297, at pp. 1143 ff.
46 Cf. Art. IV, Sect. 14 of the UN Convention on the Privileges and Immunities of the United Nations, 1 UNTS,
p. 15; 90 UNTS, p. 327 (corr.):
"Privileges and immunities are accorded to the representatives of Members
not for the personal benefit of the individuals themselves, but in order to
safeguard the independent exercise of their functions in connection with the
United Nations."
47 18 Apr. 1961, 500 UNTS, p. 96 (1964).
48 "Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the
efficient performance of the functions of diplomatic missions as representing States, ...".
49 Resolution II, Consideration of Civil Claims, adopted by the United Nations Conference on Diplomatic
Intercourse and Immunities on Apr. 14, 1961,500 UNTS, pp. 218 ff. (1964); also in:United Nations Conference
on Diplomatic Intercourse and Immunities, Official Records, vol. II, UN Doc. A/CONF.20/14/Add. 1, at p. 90.
The resolution reads:
"The United Nations Conference on Diplomatic Intercourse and Immunities,
Taking note that the Vienna Convention on Diplomatic Relations adopted by
the Conference provides for immunity from the jurisdiction of the receiving
State of members of the diplomatic mission of the sending State,
Recalling that such immunity may be waived by the sending State,
Recalling further the statement made in the preamble to the convention that
the purpose of such immunities is not to benefit individuals but to ensure the
efficient performance of the functions of diplomatic missions,
Mindful of the deep concern expressed during the deliberations of the
Conference that claims of diplomatic immunity might, in certain cases,
deprive persons in the receiving State of remedies to which they are entitled
by law,
Recommends that the sending State should waive the immunity of members
of its diplomatic mission in respect of civil claims of persons in the receiving
State when this can be done without impeding the performance of the
functions of the mission, and that, when immunity is not waived, the sending
State should use its best endeavours to bring about a just settlement of the
claims."
50 See supra note 159.
51 Yearbook of the International Law Commission 1960, vol. I, p. 42 (para. 1).
52 Ibid., p. 46 (para. 28).
53 Ibid., p. 50 (para. 23).54 Ibid., p. 51 (para. 25).
55 Ibid., p. 47 (para. 41).
56 Yearbook of the International Law Commission 1961, vol. I, p. 33 (para. 16).
57 Yearbook of the International Law Commission 1960, vol. I, p. 50 (para. 20).
58 United Nations Conference on Consular Relations, Official Records, vol. I, UN Doc. A/Conf.25/16, p. 332
(para. 36).
59 Ibid., p. 333 (para. 50).
60 Ibid., p. 338 (para. 11).
61 Ibid., p. 82 (para. 58).
62 UN Document A/CONF.25/C.2/L.3, in: United Nations Conference on Consular Relations, Official Records,
vol. II, UN Doc. A/Conf.25/16/Add. 1, p.73.
63 United Nations Conference on Consular Relations, Official Records, vol. I, UN Doc. A/Conf.25/16, p. 337
(para. 39).
64 Ibid., p. 38 (para. 21).
65 Ibid., p. 38 (para. 24).
66 Ibid., p. 36 (para. 8).
67 Ibid., p. 37 (para. 13).
68 UN Doc. A/CONF.25/L.49, in: United Nations Conference on Consular Relations, Official Records, vol. II,
UN Doc. A/Conf.25/16/Add.1, p. 171.
69 UN Doc. A/CONF.25/L.50, ibid.
70 United Nations Conference on Consular Relations, Official Records, vol. I, UN Doc. A/Conf.25/16, pp. 83 f.
(para. 73).
71 Ibid., p. 332 (para. 37).
72 Ibid., p. 333 (para. 51).
73 Ibid., p. 334 (para. 2).
74 Ibid., p. 339 (para. 13).
75 General Assembly, Official Records, Supplement No. 53, Resolutions and Decisions, UN Doc. A/40/53, p.
253.
76 Reply to the Secretary-General concerning the question of the international legal protection of the human
rights of individuals who are not citizens of the country in which they live, UN Doc. A/40/638/Add.2, at p. 3.
See also UN Doc. A/C.3/40/12, p. 27, para. 124 for a similar Japanese proposal.
77 UN Doc. E/CN.4/1354, p. 19.78 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996,pp. 254 f. (para.
70).
79 Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted by United Nations General Assembly resolution 3452 (XXX) of 9
Dec. 1975.
80 Prosecutor v. Furundzija, Judgment of 10 December 1998, Case No. IT-95-17/1-T (1998), reprinted in: 38
International Legal Materials(1999), p. 317, at p. 351 (para. 160).
81 See supra note 298 and accompanying text. On the use of subsequent practice for the interpretation of treaties
by the Court, see Corfu Channel Case, Judgment of April 9th, 1949, I.C.J. Reports 1949,p. 25: "The subsequent
attitude of the Parties shows that it was not their intention, by entering into the Special Agreement, to preclude
the Court from fixing the amount of the compensation." See also Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, I.C.J. Reports 1971,p. 22 (para. 22); I. Sinclair, supra note 159, pp. 137 f., with
further references.
82 Remarks in Hearings before the Senate Committee on Foreign Relations, S. Exec. Rep. No. 91-9, 91st Cong.
1st Sess. 2 & 5 (appendix) (1969), cited according to W. Aceves, supra note 152, p. 268.
83 For the relationship between U.S. domestic law and international law generally, see, e.g., Restatement of the
Law (Third), The Foreign Relations Law of the United States(1987), § 115 (1) (b): "That a rule of international
law or a provision of an international agreement is superseded as domestic law does not relieve the United States
of its international obligation or of the consequences of a violation of that obligation."
84 1997 U.S. Briefs 1390, ANNEX 34, at p. 17 n. 4.
85 Ibid.
86 C. Vázquez, The Four Doctrines of Self-Executing Treaties, 89 American Journal of International Law
(1995), p. 721.
87 Ibid., at p. 722 n. 135.
88 C. Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 Columbia Law Review (1992), p. 1157.
89 See Part Six of the present Memorial.
90 C. Vázquez, The Four Doctrines of Self-Executing Treaties, supra note 342, at pp. 719 ff. (citation at p. 721,
footnotes omitted).
91 U.S. v. Alvarez-Machain, 504 U.S. 655, 667 (1992).
92 28 C.F.R. Section 50.5, 32 Fed. Reg. 5619 (1967) (concerning arrest and detention by federal officers).
93 8 C.F.R. Section 236.1 (e), 32 Fed. Reg. 1040 (1967); amended 62 Fed. Reg. 10312, 10360 (1997)
94 U.S. v. Rangel-Gonzales, 617 F.2d 529, 530 (1980); referring to U.S. v. Calderon-Medina, 591 F.2d 529
(1979), at 531, para. 3 and note 6. But seeWaldron v. INS, 17 F.3d 511, 518 (1993) (denying that Art. 36 (1) (b)
constitutes "any underlying fundamental constitutional or statutory right.")
95 U.S. v. Lombera-Camorlinga, 170 F.3d 1241, 1242 f. (9th Cir. 1999).
96 Mavrommatis, supra note 292.97 Application of the Convention on the Prevention andPunishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, Sep. Op. Weeramantry, I.C.J. Reports 1993, p. 389.
98 Sep. Op. Weeramantry, supra note 353, p. 374.
99 A. Tanzi, Problems of Enforcement of Decisions of the International Court of Justice and the Law of the
United Nations, 9 European Journal of International Law (1995), p. 569. See also B. Cheng, General Principles
of Law as Applied by International Courts and Tribunals(1953), pp. 267 ff.
100 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, Sep. Op. Ajibola, I.C.J. Reports 1993, p. 399.
101 Sep. Op. Weeramantry, supra note 353, p. 379.
102 E. Hambro, The Binding Character of the Provisional Measures of Protection Indicated by the International
Court of Justice, in: W. Schätzel/ H.-J. Schlochauer (eds.), Rechtsfragen der Internationalen Organisation.
Festschrift für Hans Wehberg (1956), pp. 165 ff., whom Judge Weeramantry cites with approval, Sep. Op.,
supra note 353, at p. 378.
103 Sep. Op. Weeramantry, ibid., at p. 389.
104 J. Merrills, Interim measures of protection in the recent jurisprudence of the International Court of Justice,
44 International and Comparative Law Quarterly(1995), pp. 90 ff.
105 H. Lauterpacht, The Development of International Law by the International Court(1958), p. 254.
106 Sep. Op. Ajibola, supra note 356.
107 United Nations, Official Records of the Security Council, Sixth Session, 559th Meeting, p. 20, Document
S/PV 559 (1951).
108 E. Nantwi, The Enforcement of International Judicial Decisions and Arbitral Awards in Public International
Law (1966), p. 153
109 Many authors have based their argument as to the binding force of Provisional Measures on the binding
force of the final judgment; see, for example, A. El Ouali, Effets juridiques de la sentence internationale (1984),
pp. 99 f.; A. W. Ford, The Anglo-Iranian Oil Dispute of 1951 - 1952 (1954), p. 93; J. Stone, Legal Controls of
International Conflicts (1954), p. 132; Tanzi,supra note 355, at pp. 568 f.
110 S. Rosenne, The Law and Practice of the International Court of Justice(3d ed. 1997), vol. 1, p. 216; Sep.
Op. Weeramantry, supra note 353, at pp. 383 ff.
111 Sep. Op. Weeramantry, ibid., at p. 383.
112 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), I.C.J. Pleadings 1980, p. 266
(statement of Robert Owens).
113 J. Sztucki, Interim Measures in the Hague Court (1983), p. 289.
114 Lauterpacht, supra note 361, at p. 254.
115 Sep. Op. Weeramantry, supra note 353, at p. 382.
116 Sep. Op. Weeramantry, ibid., at p. 380 f.117 E. Dumbauld, Interim Measures of Protection in International Controversies (1932), p. 169 (emphasis in
original, footnotes omitted).
118 V. Mani, Interim Measures of Protection: Article 41 of the I.C.J. Statute and Article 94 of the UN Charter,
10 Indian Journal of International Law (1970), p. 365: "Most naturally `circumstances' can never require if the
final judgment is not going to be of any effect and if it has to face a fait accompli by the time it is pronounced."
Nantwi, supra note 364; Stone, supra note 365, p. 132; Tanzi, supra note 365, p. 569.
119 M. Hudson, The Permanent Court of International Justice, 1920 - 1942 (1943), pp. 425 f. (emphasis in
original, footnotes and internal quotation marks omitted). See also V. S. Mani,supra note 374, pp. 359, 365; C.
Crockett, The Effects of Interim Measures of Protection in the International Court of Justice, 7 California
Western International Law Journal(1977), pp. 348, 354.
120 Report of the Advisory Committee of Jurists, in: P.C.I.J., Procès-Verbaux of the Proceedings of the
Committee, June 16- July 24th, 1920, p. 735; Mani,supra note 374, p. 365.
121 M. Addo, Interim Measures of Protection for Rights under the Vienna Convention on Consular Relations, to
be published in 10 European Journal of International Law (1999), Number 4, ANNEX 58, p.17.
122 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, I.C.J. Reports 1963, p. 34.
123 Ibid., p. 29 quoting Free Zones of Upper Savoy and the District of Gex, Judgment, P.C.I.J., 1932, Series
A/B, Nr. 46, p. 161.
124 B. Ajibola, Compliance with Judgments of the International Court of Justice, in: M. Bulterman/M. Kuijer
(eds.), Compliance with Judgments of International Courts(1996), p. 16.
125 Sep. Op. Weeramantry, supra note 353, at pp. 382 f.; E. Hambro, supra note 358, at p. 170; L. I. Sánchez
Rodríguez, Sobre la obligariedad y efectividad de las medidas provisionales adoptadas por la Corte Internacional
de Justicia: A proposito de la demanda de la República de Paraguay contra los Estados Unidos en el asunto
Breard, Paper delivered at the 20th Congress of the Instituto Hispano-Luso-Americano de Derecho Internacional
in Manila 1998, p. 11 (also published in Anuario Hispano-Luso-Americano de Derecho Internacional, vol. XIV
(1999), p. 158), regards the systematic context as a strong argument for the binding force of Provisional
Measures.
126 Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p.
13.
127 Sep. Op. Weeramantry, supra note 353, at p. 385.
128 Sep. Op. Weeramantry, ibid., at p. 383, quoting Crockett, supra note 375, at p. 377 (emphasis added).
129 Legality of Use of Force (Yugoslavia v. Belgium), (Yugoslavia v. Canada), (Yugoslavia v. France),
(Yugoslavia v. Germany), (Yugoslavia v. Italy), (Yugoslavia v. Netherlands), (Yugoslavia v, Portugal),
(Yugoslavia v. Spain), (Yugoslavia v. United Kingdom), (Yugoslavia v. United States of America), Orders of 2
June 1999, Declaration of Judge Koroma.
130 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August
1972, I.C.J. Reports 1972, p. 34; Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of
11 September 1976, I.C.J. Reports 1976, p. 9.
131 Addo, supra note 377, at p. 19.
132 G. Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. II (1986), p. 548
(footnotes omitted).133 Art. 92, 111 UN Charter; Art. 33 (1) Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS,
p. 331.
134 Council of the EC, EC Glossary French-English (8th ed. 1990): il doit - it shall (legal instruments); E. Le
Docte, Dictionnaire de termes juridiques en quatre langues (1987), p. 228, devoir = deber = duty; C. Smith,
Collins Spanish-English, English-Spanish Dictionary (3d ed. 1998), p. 144; G. Cabanellas de las Cuevas/ E. C.
Hoague, Diccionario jurídico- Law Dictionary (1990), p. 179: deber = to owe, to be in debt, to have to; María
Molinar, Diccionario de uso del español (2nd ed. 1998), vol. A-H, p. 864: tener obligación de hacer lo que el
verbo expresa = being obliged to do what the verb expresses.
135 Sep. Op. Weeramantry, supra note 353, at p. 380: "Indeed, the French word `indiquer' probably goes even
further in this direction [of creating a connotation of an obligation] than the English word `indicate', for one of
the meanings of `indiquer' is `to draw up (a procedure, etc.); to dictate, to prescribe, lay down a line of action,
etc."; quoting Harrap's Standard French and English Dictionary, vol. 1, p. I:18. As for the Spanish text, see
Cabenellas de las Cuevas/Hoague, supra note 390, at p. 308 (indicar = to indicate, to express, to instruct); Smith,
supra note 390, at p. 277.
136 Vienna Convention on the Law of Treaties, supra note 389.
137 In the Assembly of the League of Nations it was agreed to take the French version as basis, see Procès-
Verbaux of the Third Committee of First Assembly, Fifth Meeting, 29 Nov. 1920, reprinted in League of
Nations, Permanent Court of International Justice, Documents Concerning the Action Taken by the Council of
the League of Nations, vol. 3 (1920), at p. 134. See also Sztucki, supra note 369, at pp. 263 ff., and Sep. Op.
Weeramantry, supra note 353, at p. 380.
138 Ibid.
139 Ibid., at p. 380.
140 Ibid., at p. 384.
141 Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 259 (para.19).
142 Sztucki, supra note 369, at pp. 272 f.; Sep. Op. Weeramantry, supra note 353, at pp. 384 f.
143 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 144, para. 289.
144 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349.
145 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April
1992, I.C.J. Reports 1992, p. 15 (para. 41) (p. 127 [para. 44] in the parallel Case instituted against the United
States).
146 M. Aznar-Gómez, A propos de l'affaire relative à la Convention de Vienne sur les relations consulaires
(Paraguay c. Etats-Unis d'Amérique), 102 Révue Générale de Droit international public (1998), pp. 933 f.:
"[T]oute la discussion doctrinale, par exemple, après l'ordonnance du 14
avril 1992 en l'affaire Lockerbie perdrait une partie de sa signification si l'on
n'admettait pas la nature obligatoire des mesures conservatoires. ... Comment
les mesures indiquées par la Cour pourraient-elles `porter atteinte' aux droits
conférés par ladite résolution si elles ne sont pas sensées avoir de force
obligatoire?"147 Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 9 April 1998,
I.C.J. Reports 1998, Declaration of President Schwebel, p. 259; emphasis added.
148 K. Oellers-Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit(1975), pp. 110 f.,
115; Hambro, supra note 358, at p. 167; Mani, supra note 375, at pp. 362 f. As explained by P. Goldsworthy,
Interim Measures of Protection in the International Court of Justice, 68American Journal of International Law
(1974), p. 260: "The practice of states reveals acceptance of a general obligation to maintain the status quo
pending a final decision in a dispute". See Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in accordance with the Charter of the United Nations of 24 October
1970, General Assembly Resolution 2625 (XXV), reprinted in 9International Legal Materials (1970), p. 1292;
J. Elkind, Interim Protection: A Functional Approach(1981), p. 162 stresses the universal recognition of the
binding nature of interlocutory injunctions and similar measures and concludes that this rule may even be
considered to be a "general principle of law recognized by civilized nations" under Art. 38 (1) (c) of the Court's
Statute.
149 H. Niemeyer, Einstweilige Verfügungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen(1932), pp. 15 f.
(as quoted and translated in the Separate Opinion of Judge Weeramantry, supra note 353, at p. 378); R. St. J.
MacDonald, Interim Measures in International Law, with Special Reference to the European System for the
Protection of Human Rights, 52 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht(1992), p. 730,
summarizes the general rule as follows: "[P]arties who submit to the jurisdiction of a court have the implied
obligation not to act in such a way as to render the judgment of the court meaningless."
150 Dumbauld, supra note 373, at pp. 173 ff.; Niemeyer, supra note 405, at pp. 15 f.
151 Electric Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J., Series A/B, No.79, p.199.
152 Hambro, supra note 358, at p. 167. In his Separate Opinion in the Genocide Case, Judge Weeramantry cites
this statement with approval, supra note 353, at p. 377.
153 United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Provisional Measures, Order
of 15 December 1979, I.C.J. Reports 1979, p. 7.
154 See S. Shank/J. Quigley, Obligations to ForeignersAccused of Crime in the United States: A Failure of
Enforcement, 9 Criminal Law Forum (1999), p. 117.
155 The U.S. proposal read as follows:
"The Security Council ...
Having taken into account the Order of the International Court of Justice of
15 December 1979 calling on the Government of the Islamic Republic of
Iran to ensure the immediate release, without any exception, of all persons of
United States nationality who are being held as hostages in Iran and also
calling on the Government of the United States of America and the
Government of the Islamic Republic of Iran to ensure that no action will be
taken by them which will aggravate the tension between the two countries, ...
Bearing in mind that the continued detention of the hostages constitutes a
continuing threat to international peace and security,
Acting in accordance with Articles 39 and 41 of the Charter of the United
Nations,
1. Urgently calls once again on the Government of the Islamic Republic of
Iran to release immediately all persons of United States nationality ...".
Security Council, Official Records, Thirty-fifth Sess., Suppl. (Jan. - March 1980),
U.N. Doc. S/13735 (1980), p. 10, footnote omitted.156 Statement of the U.S. Secretary of State, Cyrus Vance, Security Council, Official Records, Thirty-fourth
Sess., 2182nd mtg., U.N. Doc. S/PV.2182 (1979), p. 6.
157 Ibid.
158 Shank/Quigley, supra note 410, at p. 120.
159 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 183 (para. 33) and p. 184 (para.35).
160 Lockerbie, supra note 401, at p. 126 (para. 40).
161 For a summary of the facts, see J. Charney/W. Reisman, Agora: Breard- The Facts, 92 American Journal of
International Law (1998), pp. 666 ff.
162 Addo, supra note 377; M. Aznar-Gómez, supra note 402; R. Carnerero Castilla, Algunas cuestiones de
derecho internacional suscitadas por el ,,caso Breard" XIV Anuario Hispano-Luso-Americano de Derecho
Internacional, (1999), p. 239; E. Rieter, Interim Measures by the World Court to Suspend the Execution of an
Individual: The Breard Case, 16 Netherlands Quarterly of Human Rights(1998), p. 475; L. Sánchez Rodríguez,
supra note 381. See also the contributions of various authors to the Agora: Breard in 92 American Journal of
International Law (1998), pp. 666 ff.
163 Addo, supra note 377, at p. 22.
164 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
paras. 3.2 (Mr. Crook) and 4.13 (Mr. Matheson).
165 L. Henkin, Provisional Measures, U.S. Treaty Obligations and the States, 92 American Journal of
International Law (1998), p. 680 (footnotes omitted).
166 Statement of Jim Gilmore, Governor of Virginia, 14 April 1998, ANNEX 59, p. 2.
167 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures,
Order of 9 April 1998, I.C.J. Reports 1998, p. 258 (para.41).
168 See on this question in detail supra Part Five, Ch. I.
169 Brief for the United States as Amicus Curiae, 1997 U.S. Briefs 1390, ANNEX 34, at p. 51.
170 Letter of Secretary of State Albright to the Governor of Virginia, 13 April 1998, ANNEX 37 (emphasis
added). Obviously, this reference to "non-binding language" cannot convince, given the clear prescriptions
expressed in the Order, see L. Henkin, supra note 421, at p. 680.
171 See infra note 439 and accompanying text.
172 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J.
Reports 1999, p. 16 (para. 29), emphasis added.
173 Ibid., p. 16 (para. 28).
174 Ibid., p. 16 (para. 29).
175 See the Statement of Facts, supra Part II, note 33 and accompanying text; Germany v. United States, 119
S.Ct. 1016, ANNEX 33.176 ANNEX 28, p. 2.
177 ANNEX 38.
178 Sumitomo Shoji Arica, Inc. v. Avagliano, 457 U.S. 176, 184, 185 (1982);United States v. Stewart, 489 U.S.
353, 369 (1989).
179 See the letter of the Secretary of State of 13 April 1998, ANNEX 37.
180 See infra, Part Six, Ch. IV.
181 Henkin, supra note 421, at p. 681.
182 As it had already done in 1998 in the similar Brief in the Breard Case, 1997 U.S. Briefs 1390, ANNEX 34,
at pp. 49 ff.
183 Letter of Solicitor General Seth P.Waxman of 3 March 1999, ANNEX 28.
184 Germany v. United States, 119 S.Ct. 1016 (1999), ANNEX 32.
185 Ibid.
186 Yearbook of the International Law Commission1973, vol. II, p. 173, with numerous further references.
187 See Part Four of the present Memorial.
188 I.C.J. Reports 1999, not yet published, para. 62.
189 Ibid.
190 See Report of the International Law Commission on the work of its forty-eighth session, General Assembly,
Official Records, Fifty-first Session, Suppl. No. 10, UN Doc. A/51/10, p. 124.
191 Ibid., at p. 126.
192 Ibid., at p. 127.
193 Thus, the content of the "old" Articles 5, 6 and 7 para. 1 is now to be found in Article 5 of the draft articles
provisionally adopted by the ILC's Drafting Committee in 1998, which reads as follows:
"1. For the purposes of the present articles, the conduct of any State organ
acting in that capacity shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial
or any other functions, whatever position it holds in the organization of the
State, and whatever its character as an organ of the central government or of
a territorial unit of the State.
2. For the purposes of paragraph 1, an organ includes any person or body
which has that status in accordance with the internal law of the State."
(Text in: B. Simma, The Work of the International Law Commission at Its Fiftieth
Session [1998], 67 Nordic Journal of International Law[1998], p. 479).
194 B. Simma, ibid., at p. 449.195 See Yearbook of the International Law Commission 1973, vol. II, pp. 193 ff., andYearbook of the
International Law Commission 1974, vol. II part 1, pp. 277 ff. See also the Commentary on the draft article 5,
Yearbook of the International Law Commission 1973, vol. II, pp. 191 ff.
196 Yearbook of the International Law Commission1973, vol. II, p. 196.
197 P.C.I.J., Series A, No. 7, 1926, p. 19; emphasis added.
198 S.S."Lotus", 1927, P.C.I.J., Series A, No. 10, p. 24; Jurisdiction of the Courts of Danzig, Advisory Opinion,
1928, P.C.I.J., Series B, No. 15, p. P. 24; Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74,
p. 28; Ambatielos, Merits, Judgment, I.C.J. Reports 1953, pp. 21 ff. See also most recently the Advisory Opinion
concerning the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission
on Human Rights, General List No. 100, unpublished, for the text see Internet-Website of the International Court
of Justice, http://www.icj-cij.org, para. 63: "The Malaysian courts did not rulein limine litis on the immunity of
the Special Rapporteur. ... Consequently, Malaysia did not act in accordance with its obligations under
international law."
199 "Monteijo" Case, J. Moore, History and Digest of the International Arbitrations to which the United States
has been a Party (1898), vol. II, pp. 1440 f.
200 See for further references Yearbook of the International Law Commission 1974, vol. II part 1, pp. 279 ff.
201 See also Yearbook of the International Law Commission 1973, vol. II, pp. 193 f.
202 I. Brownlie, Principles of Public International Law (5th ed. 1998), p. 34 (footnote omitted).
203 G. Fitzmaurice, The general principles of internationallaw considered from the standpoint of the rule of law,
92 Recueil des Cours (1957-II), p. 85.
204 R. Jennings/A. Watts (eds.), Oppenheim's International Law, vol. I (9th ed. 1992), pp. 84 f. (footnotes
omitted).
205 Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), vol. 1, p. 64, § 115,
Comment b.
206 See J. Moore, History and Digest of the International Arbitrations to which the United States has been a
Party (1898), vol. I, p. 656: "And whereas the governmentof Her Britannic Majesty cannot justify itself for a
failure in due diligence on the plea of insufficiencyof the legal means of action which it possessed ...".
207 See the extensive references in Oppenheim's International Law, supra note 460, pp. 34 f., note 15 ff.
208 Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167.
209 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory,
Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24.
210 See from the jurisprudence of the International Court of Justice, inter alia, the Judgments in the Fisheries
Case (I.C.J. Reports 1951, p. 132) and in the Nottebohm Case (I.C.J. Reports 1955, pp. 20f.).
211 Yearbook of the International Law Commission1966, vol. II, p. 211.
212 The article was not included in the draft prepared by the International Law Commission because it was
thought that the principle belonged to the field of Stateresponsibility rather than to the law of treaties. See I.
Sinclair, The Vienna Convention on the Law of Treaties(2nd ed. 1984), p. 84, with further references.213 Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), vol. 1, Introduction
to Chapter Two, p. 40.
214 Report of the International Law Commission on the work of its forty-eighth session,supra note 446, at p.
126. In the version provisionally adopted by the Drafting Committee in 1998, Art. 4 reads as follows: "The
characterization of an act of a State as internationally wrongful is governed by international law. Such
characterization is not affected by the characterization of the same act as lawful by internal law." See Simma,
supra note 449, at p. 479.
215 Yearbook of the International Law Commission 1973, vol. II, at p. 185.
216 Cf. Brownlie, supra note 458, pp. 439 ff.
217 See Report of the International Law Commission on the work of its forty-eighth session, supra note 446, at
p. 126. On second reading, the substance of the Article remained unchanged, see Simma, supra note 449, at p.
479.
218 For a good (critical) exposition of the ILC view see A.Gattini, La notion de faute à la lumière du project de
convention de la Commission du Droit International sur la responsabilité internationale, 3European Journal of
International Law (1992), pp. 253 ff.; id., Smoking/No Smoking: Some Remarks on the Current Place of Fault in
the ILC Draft Articles on State Responsibility, 10 European Journal of International Law(1999), pp. 397 ff. For
the most recent Commission debate on this point see the Report of the International Law Commission on the
work of its fifty-first session, 3 May to 23 July 1999. General Assembly Official Records, Fifty-fourth Session,
Supplement No. 10 (A/54/10), paras. 416 ff.
219 Cf. J. Crawford, Second report on State responsibility, International Law Commission, Fifty-first session
(1999), UN Doc. A/CN.4/498/Add. 2, p. 20, para. 260.
220 See with extensive references Brownlie, supra note 458, pp. 496 ff.
221 Cf. J. Crawford, Second report on State responsibility, International Law Commission, Fifty-first session
(1999), UN Doc. A/CN.4/498, p. 56, para. 137.
222 The International Court of Justice for example has characterized it as "an important rule of international
law": Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 15 (para. 50).
223 See for the text of article 22 of the draft as adopted on first reading, Report of the International Law
Commission on the work of its forty-eighth session, supra note 446., at p. 132, and for a new proposal by Special
Rapporteur J. Crawford (article 26bis), Second report, supra note 477, at p. 67.
224 See for the exact account of the legal remedies resorted to in both casessupra Part Two of the Present
Memorial (Statement of Facts).
225 See Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for
the Indication of Provisional Measures, Oral Argument of 7 April 1998,Uncorrected Verbatim Record, CR
98/7, para. 3.20 (Mr. Crook).
226 United States Diplomatic and Consular Staff in Tehran, Memorial of the United States, I.C.J. Pleadings
1980, p. 188.
227 Ch. I 2.
228 Report of the International Law Commission on the work of its forty-eighth session (1996), General
Assembly, Official Records, 51st Session, Suppl. No. 10, UN Doc. A/51/10, p. 125. In the version provisionally
adopted by the Drafting Committee of the International Law Commission in the course of the second reading in
1998, reprinted in: B. Simma, The Work of the International Law Commission at Its Fiftieth Session (1998), 67
Nordic Journal of International Law (1998), p. 479, the provision has remained unchanged.229 Report of the International Law Commission on the work of its forty-eighth session,supra note 484, at p.
130. In the course of the second reading of the 1996 draft, the ILC Drafting Committee embodied the content of
Art. 17 of 1996 in a newly-formulated draft article 16 which now reads:
"There is a breach of an international obligation by a State when an act of
that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character."
UN Doc. A/CN.4/L.574 and Corr. 1.
230 Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), vol. 2, p. 216 (§ 713
(1)), emphasis added. See also Comment h, ibid., at p. 220.
231 Yearbook of the International Law Commission1960, vol. I, p. 51 (para. 27).
232 See Art. 9 of the Vienna Convention on Diplomatic Relations; Art. 23 (1) and (4) of the Vienna Convention
on Consular Relations.
233 United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 3, at p. 39 (para. 85).
234 Ibid., at p. 40 (para. 86).
235 Ibid., at p. 38 (para. 83).
236 Ibid., at p. 40 (para. 86).
237 Ibid., at p. 45 (para. 5 of the dispositif).
238 Ibid., at p. 42, paras. 90 f.
239 See the statement to this effect in the public hearing in theBreard Case, supra note 481.
240 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures,
Order of 9 April 1998, I.C.J. Reports 1998, p. 259.
241 Cf. Report of the International Law Commission on the work of its fiftieth session,General Assembly
Official Records, Fifty-third Session, Suppl. No. 10, UN Doc. A/53/10, paras. 202-214.
242 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, pp. 39 ff. (paras. 49 ff.)
243 Ibid., at p. 55 (para. 83).
244 For its relevance in the present context, see supra, Part Five, Ch. I.
245 General List No. 100, unpublished, for the text see Internet-Website of the International Court of Justice,
http://www.icj-cij.org, para. 62.
246 International Law Commission, Fifty-first session, Provisional Summary Record of the 2585th meeting, 10
June 1999, UN Doc. A/CN.4/SR.2585 of 17 June 1999.
247 M/V "Saiga" (No. 2) (Saint Vincent and the Grenadines v. Guinea), International Tribunal of the Law of the
Sea, Judgment of 1 July 1999, unpublished, available under http://www.un.org/Depts/los/Judg_E.htm(last
visited 17 August 1999), para. 171.248 See United States Comments on the Draft articles on State responsibility (October 22, 1997), 37
International Legal Materials(1998), p. 468: "In particular, the sections on countermeasures, crimes, dispute
settlement, and state injury contain provisions that are not supported by customary international law."
249 Ibid.: "Reparation: While many of the points in the section onreparation reflect customary international law,
other provisions contain qualification that undermine the well-established principle of `full reparation.'"
(emphasis in the original). In detail see ibid., at pp. 478 ff.
250 Germany will also refer to the second reading ofthe draft articles which is currently under way in the
Commission. On the progress made so far by the ILC in this regard, see Report of the International Law
Commission on the work of its fifty-first session, 3 May to 23 July 1999,General Assembly Official Records,
Fifty-fourth Session, Suppl. No. 10, UN Doc. A/54/10, paras. 49 ff.
251 Phosphates in Morocco, Preliminary Objections, Judgment of 14 June 1938, Series A/B 74, p. 28.
252 See supra note 484 and accompanying text.
253 Factory at Chorzów (Claim for Indemnity), Jurisdiction, Judgment of 26 July 1927, Series A No. 9, p. 21.
254 Factory at Chorzów (Claim for Indemnity), Merits, Judgment of 13 September 1928, Series A No. 17, p. 47.
255 See, recently, Gabcíkovo-Nagymaros (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at 77 (para.
149). See also M/V "Saiga" (No. 2), International Tribunal for the Law of the Sea, supra note 503, para. 170.
0 Supra, Part V, Ch. I.
1 Commentary to Art. 43 of the Draft articles on State responsibility, para. (6), Yearbook of the International
Law Commission 1993, vol. II part 2, p. 64 (footnotes omitted, emphasis added).
2 Affaire Martini (Italie c. Venezuela), Decision of 3 May 1930, 2 UNRIAA, p. 1002:
"[E]n raison de l'attitude ainsi prise par la Cour Fédérale et de Cassation vis-
à-vis de la Maison Martini & C dans ledit procès, le Gouvernement
Vénézuélien est tenu, de reconnaître, à titre de réparation, l'annulation des
obligations de paiement imposées à la Maison Martini & C " ie
(emphasis added).
3 Parry, Consolidated Treaty Series, vol. 225, at pp. 337 f.
4 See Commentary to draft article 43, supra note 513, at p. 61 (para 12).
5 I. Brownlie, System of the Law of Nations: State Responsibility (Part I)(1983), p. 210 (emphasis added).
6 Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), vol. 2, p. 341, § 901,
comment c). See also M. Aznar-Gómez, A propos de l'affaire rélative à la Convention de Vienne sur les relations
consulaires (paraguay c. États-Unis d'Amérique, 98 Revue générale de Droit international public(1998), pp. 941
ff.; B. Graefrath, Responsibility and Damages Caused: Relationship between Responsibility and Damages, 185
Recueil des Cours (1984 II), p. 78: Restitution ,,can be directed towards enactment, repeal or modification of ...
court decisions". Similarly, K. Zemanek, in: H. Neuhold, W. Hummer, and C. Schreuer eds., Österreichisches
Handbuch des Völkerrechts (3d ed. 1998), vol. 1, p. 458 (§ 2487); A. Verdross/B. Simma,Universelles
Völkerrecht (3d ed. 1984), p. 875 (§ 1295). For further references, see Commentary to Art. 43, supra note 513, at
p. 60 (para. 12, n. 162 s.).
7 K. Zemanek, supra note 518, § 2488; H. Urbanek, Die Unrechtsfolgen bei einem völkerrechtsverletzenden
nationalen Urteil; seine Behandlung durch internationale Gerichte, 11Österreichische Zeitschrift für öffentliches
Recht (1961), pp. 81f.8 For further details, see supra Part Four, Ch. I 3 c).
9 Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at p. 81 (para.
152).
10 Decision of 30 April 1990, 20 Reports of International Arbitral Awards, p. 272 (paras. 118 f.).
11 Cf. C. Gray, Judicial Remedies in International Law (1987), p. 105: "One of the main advantages of the
declaratory judgment is that its use avoids the decree for reparation which could injure the dignity of the
respondent state."
12 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
paras. 3.30 f. (Mr. Crook).
13 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 32 (para. 44).
14 Draft articles on State responsibility, supra note 485, at p. 126. In the version adopted by the ILC's Drafting
Committee in the course of the current second reading, the substance of the provision remained unchanged, see
Simma, supra note 506, at p. 479.
15 Commentary to the Draft articles on State responsibility,Yearbook of the International Law Commission
(1973), vol. II, p. 183 (para. 12). Similarly, C. Rousseau,Droit international public, vol. V (1983), p. 14;
Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), § 901 and Comment a;
A. Verdross/B. Simma, Universelles Völkerrecht (3d ed. 1984), p. 849 (para. 1264).
16 Affaires des biens britanniques au Maroc espagnol (Espagne c. Royaume-Uni), 1 May 1925, 2 Reports of
International Arbitral Awards, p. 641.
17 See, e.g., Factory at Chorzów, Jurisdiction, P.C.I.J. 1927, Series A, No. 9, p. 21; Corfu Channel, Merits,
Judgment, I.C.J. Reports 1949,p. 23.
18 See, e.g., Restatement of the Law (Third), The Foreign Relations Law of the United States (1987), vol. 2, p.
340, § 901: "Under international law, every state that violates an obligation to another state is required to
terminate the violation and, ordinarily, to make reparation. . . ."; Ch. Rousseau, Droit International Public, vol.
V (1983), p. 210: "La réparation est une conséquence necessaire de l'acte illicite."
19 Yearbook of the International Law Commission 1985, vol. II part 2, at p. 25 (para. 3).
20 Draft articles on State responsibility, supra note 485, at p. 140.
21 Cf. Arthur W. Rovine (ed.), Digest of United States Practice in International Law (1973), p. 161.
22 United States Diplomatic and Consular Staff in Tehran, Memorial of the United States, I.C.J. Pleadings
1980, p. 174 (citations omitted).
23 In the United States, timely notification is particularly vital because of the death penalty and the doctrine of
procedural default, discussed in Part Four, Ch. I 3. This doctrine prevented U.S. courts from hearing essential
evidence in both the Breard and LaGrand Cases once Paraguay and Germany, respectively, had discovered the
situation of their nationals. The home country's consulates being prevented from immediately involving
themselves in the judicial proceedings in the United States, prejudice to Germany's rights to render consular
protection and assistance turned out to be undeniable and indelible. For details see supra, Part Four, Ch. I.
24 U.S. Department of State, Foreign Affairs Manual (1984), ANNEX 60, 7 FAM 411 (emphasis added).
25 Testimony of Mr. Walentinowicz before the House Committee on International Relations on 29 April 1975,
in: E. McDowell (ed.), Digest of United States Practice in International Law 1975, p. 252.26 See supra Part Four, Ch. I 3 c) (2), note 217 and accompanying text.
27 See Mavrommatis Palestine Concessions, Jurisdiction, Judgment, 1924, P.C.I.J., Series A, No. 2, p. 12. See
also Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16; Reparation for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 184.
28 Ibid.
29 Commentary to draft article 40, supra note 531, at p. 26 (paras 11 f.).
30 Ibid. (para. 14).
31 See supra Part Four, Ch. III.
32 For "prejudice" in United States law, see supra Part Four, Ch. I. 3.
33 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
para. 2.14 (Ms. Brown), from where the citation above in the text is taken. For the present Case, see also the
letter of the Solicitor General to the U.S. Supreme Court in the Case of Walter LaGrand, ANNEX 28, as well as
the brief of the Solicitor General to the U.S. Supreme Court in theBreard Case, 1997 U.S. Briefs 1390, ANNEX
34, at pp. 12 f.
34 See supra, Ch. II 1.
35 See supra, Part Four, Ch. I 3 b and the cases cited there.
36 Ibid.
37 See supra, Part VI, Ch. I 3.
38 S. Shank/J. Quigley, Obligations to Foreign Nationals Accused of Crime in the United States: A Failure of
Enforcement, 9 Criminal Law Forum (1999), p. 110.
39 Brief to the Supreme Court in Breard v. Greene, 1997 U.S. Briefs 1390, ANNEX 34, at p. 23. Similarly Ms.
Brown, Counsel for the United States, supra note 545, para. 2.18.
40 See S. Shank/J.Quigley, Foreigners on Texas' Death Row and the Right of Access to a Consul, 26 St. Mary's
Law Journal (1995), p. 720.
41 See generally M. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right
to Consul, 18 Michigan Journal of International Law (1997), p. 565; Shank/Quigley,supra note 552, at p. 719.
42 Kadish, supra note 553, at p. 565, Fn. 244, quoting Reply Brief Amicus Curiae of the United Mexican States,
No. 96-14, Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997).
43 Application of the Vienna Convention on Consular Relations (Paraguay v. United States), Request for the
Indication of Provisional Measures, Oral Argument of 7 April 1998, Uncorrected Verbatim Record, CR 98/7,
para. 2.18 (Ms. Brown).
44 See supra note 510. Cf. also U.S. Comments, supra note 504, at pp. 479 f. with further references.
45 See supra note 484, at p. 141.
46 ILC Commentary, supra note 513, at p. 59 (para. 3).47 Ibid., at p. 79 (para. 10), footnotes omitted. For further references, see ibid., at p. 79 notes 305 f. See also I.
Brownlie, Principles of Public International Law(5th ed. 1998), p. 462, who distinguishes between a judicial
pronouncement as a form of satisfaction and purely declaratory judgments.
48 Corfu Channel Case (Merits), I.C.J. Rep. 1949, p. 4.
49 Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory), P.C.I.J., 1927, Series A, No. 13,p. 20.
50 20 Reports of International Arbitral Awards, pp. 272 f. (para. 122).
51 Ibid., at 275.
52 M/V "Saiga" (No. 2), supra note 503, para. 171.
53 C. Gray, Judicial Remedies in International Law (1987), p. 42.
54 Commentary to draft article 45, in: Yearbook of the International Law Commission 1993, vol. II part 2, p. 77
(para. 4).
55 Ibid., para. 5.
56 D. Anzilotti, Corso di diritto internazionale, vol. 1 (4th ed. 1955), p. 404. The passage is cited according to
the English translation in the ILC Commentary to Art. 45,supra note 566, at p. 77 (para. 4), emphasis of the
Commission removed. The Italian original reads: "Il momento essenziale dei rapporti tra gli Stati non è il
momento economico, anche se questo ne costituisce, in ultima analisi, il sustrato; è piuttosto un momento ideale;
l'onore, la dignità, il valore etico dei subietti. Ne segue che il solo fatto che uno Stato veda disconosciuto da un
altro Stato un suo diritto, implica un danno che esso non può essere tenuto a sopportare, quand'anche non sieno
per derivarne conseguenze materiali: ... ." For further references see ILC Commentary, ibid.
57 See the Statement of Facts, Part Two of the present Memorial.
58 See supra note 32 and accompanying text as well as ANNEX 27.
59 See Statement of Governor Hull, ANNEX 33.
60 See the letter of the Solicitor General to the U.S. Supreme Court, ANNEX 28.
61 Cf. letters of Secretary of State Albright to the Governorof the Commonwealth of Virginia in the case of the
Paraguayan Angelo Breard (ANNEX 37) and to the Chairman of the Texas Board of Pardons and Paroles in the
case of the Canadian national Stanley Faulder, ANNEX 61.
62 1997 U.S. Briefs 1390, ANNEX 34, at p. 13.
63 Supra note 484, at p. 143; emphasis added.
64 Commentary to draft article 44, Yearbook of the International Law Commission1993, vol. II part 2, at p. 69
(para. 7), footnote omitted.
65 See also the reference in the ILC Commentary to draft article 42,Yearbook of the International Law
Commission 1993, vol. II part 2, at p. 59 (para. 6).
66 4 International Legal Materials(1965), p. 698, reproduced in: Commentary to draft article 43, Yearbook of
the International Law Commission (1993), vol. II part 2, p. 82 (para. 2).
67 Draft articles on State responsibility, in: ILC Report 1996,supra note 484, at p.143.68 F. Przetacznik, La responsabilité internationale de l'État à raison des préjudices de caractère moral et politique
causés à un autre Ètat, 78 Revue Générale de Droit international public(1974), pp. 966 f., and the examples
cited therein. See also, inter alia, R. Jennings, A. Watts (eds.), Oppenheim's International Law, vol. 1 (9th ed.
1992), p. 532, and the judgment cited there in note 14; Brownlie,Principles, supra note 559, at p. 463 (counting
guarantees among measures of satisfaction). See also the judgments cited in the Commentary to draft article
article 46, Yearbook of the International Law Commission (1993), vol. II part 2, pp. 81 ff. and infra.
69 M/V "Saiga" (No. 2), supra note 503, para. 171.
70 See ILC Commentary, supra note 580, at p. 83 (para. 5).
71 Ibid., at p. 82 (paras. 3 and 4), with further references; Przetacznik, supra note 580, at pp. 967 f.
72 Letter of Secretary of State Evarts to the Minister to Spain, Mr. Fairchild, of 11 Aug. 1880, in: J. Moore (ed.),
A Digest of International Law (1906), vol. 2, pp. 907 f., emphasis added.
73 Note of 11 March 1966, 70Revue Générale de Droit international public(1966), p. 1013.
74 R. Falk, The Beirut Raid and the International Law of Retaliation, 63American Journal of International Law
(1969), p. 419.
75 Commentary to draft article 46, supra note 580, at pp. 82 f. (para. 4).
76 Trail Smelter Case (Canada v. United States), Award of 16 April 1938, 3 Reports of International Arbitral
Awards, p. 1934.
77 Annual Message, 6 December 1886, in: J. Moore, A Digest of International Law (1906), vol. 2, p. 232.
78 Correspondence with Mr. Connery, Chargé to Mexico, Nov. 1, 1887,ibid., at p. 238.
79 Ibid., at p. 239.
80 International Covenant on Civil and Political Rights of 19 December 1966, 999 UNTS, p. 171.
81 Optional Protocol to the International Covenant on Civil and Political Rights of 19 December 1966, 999
UNTS, p. 302.
82 General Assembly Official Records, Thirty-fifth Session, Suppl. No. 40, UN Doc. A/35/40, p. 126 (para. 19).
For further examples, see the Lanza case, Decision of 3 April 1980, ibid., p. 119 (para. 17) and the Dermit
Barbato case, Decision of 12 October 1982,General Assembly Official Records, Thirty-eighth Session, Suppl.
No. 40, UN Doc. A/38/40, p. 133 (para. 11).
83 Commentary to draft article 46, supra note 580, at p. 83 (para. 5).
84 See Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional
Measures, Order of 9 April 1998, I.C.J. Reports 1998, pp. 248 ff.
85 See Part Four, n. 153 and accompanying text.
86 See supra, Part Six, Ch. III 2 a).
87 Supra note 484, at p. 143.
88 See ILC Commentary, supra note 580, at p. 83 (para. 5).89 Cf. United States Comments on the Draft articles on State responsibility, 37International Legal Materials
(1998), pp. 482 f.
90 Draft articles on State responsibility, supra note 484, at p. 141.
91 Cf. the United States comments, supra note 504, at pp. 478 f.
92 For details see supra, Part Four, Ch. I 3 b (2).
93 For details see supra, Part Five, Ch. II.
94 Draft articles on State responsibility, supra note 484, at p. 142.
95 ILC Commentary, supra note 580, at p. 61 (para. 14).
96 ILC, supra note 513, at p. 61 (para. 15).
97 U.S. v. Belmont, 301 U.S. 324, 331 (1937) (Sutherland, J.). For an extensive treatment of the relationship
between international law and U.S. federalism see L. Henkin, Foreign Affairs and the United States Constitution
(2d ed. 1996), pp. 149 ff.
98 To this effect, see L. Henkin, Provisional Measures, U.S. Treaty Obligations, and the States, 92 American
Journal of International Law(1998), p. 681; C. Vázquez, Breard and the Federal Power to Require Compliance
with ICJ Orders of Provisional Measures, ibid., at pp. 683 ff.
99 For details concerning this act, see supra Part Four, Ch. I.
100 For details see F. Kirgis, Zschnering v. Miller and the Breard Matter, 92 American Journal of International
Law (1998), pp. 704 ff.; C. Vázquez, Breard, Printz, and the Treaty Power, 70Colorado Law Review (1999), pp.
1324 ff.
101 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); J. Paust, Breard and Treaty-based Rights
Under the Consular Convention, 92 American Journal of International Law(1998), p. 692. On this canon of
interpretation see also Restatement of the Law (Third), The Foreign Relations Law of the United States (1987),
vol. 1, p. 62 (§ 114).
102 A.-M. Slaughter, Court to Court, 92 American Journal of International Law (1998), p. 708.
Memorial of the Federal Republic of Germany