Memorial of the Republic of Paraguay

MEMORIAL OF PARAGUAY
MÉMOIRE DU PARAGUAY
1
CHAPTERl
INTRODUCTION
1.1 The Republic of Paraguay instituted proceedîngs in this
Court in order to prevent the execution of a national who, the United
States conceded, had been convicted and sentenced in violation of the
provisions of the Vienna Convention on Consular Relations
goveming consular notification and access. After hearing the parties'
submissions on Paraguay's Request for an Indication of Provisional
Measures, the Court ordered the United States to take ail measures at
its disposai to hait the execution.
1.2 The United States chose not to do so. The federai
Executive deferred to the Governor of Virginia and successfully
urged the United States Supreme Court to do the same. Relying on
the advice of the United States that the Ortler was not binding, the
Governor went forward with the execution. In a press release issued
on the night of the execution, the Govemor stated that he had not
granted a reprieve in order to eliminate the possibility that this Court's
eventual judgment might prevent that execution.
1.3 As a result, the case returns to this Court in a
fundamentally different posture than it had at the time Paraguay filed
its Application. The United States' violation of the Ortler has
rendered it impossible for the Court to grant Paraguay restitutio in
integrum in the form of a new trial for Mr. Breard or, in the
alternative, reconveyance of the plea offer. Paraguay must therefore
seek other, infinitely less adequate forms ofreparation.
1.4 In addition, the United States' violation of the Ortler gives
rise to a distinct daim for breach of its obligations under the Vienna
Convention. By that daim, Paraguay calls upon the Court to confirm
the binding character of the obligation undertaken by a State Party
that agrees to submit a dispute to this Court.
2
VIENNA CONVENTION ON CONSULAR RELATIONS
1.5 Thus, on the present submissions, Paraguay makes three
claims. First, Paraguay daims that the United States breached
Article 36(1) of the Vienna Convention by denying to both Paraguay
and its national their rights of consular notification and access during
the course of a crirninal proceeding by which Mr. Breard was
sentenced to death. Paraguay originally sought restitutio in integrum
- that is, the restoration of the situation that existed prior to the
breach. Given the impossibility of that remedy in light of the
execution, Paraguay seeks a declaration and alternative forms of
reparation.
1.6 The United States acknowledges the violation of Article
36(1 ), but contended at the provisional measures hearing that no
prejudice to Mr. Breard could be established as a result of the breach
of Paraguay's right to provide consular assistance. The United States'
position is without rnerit. Under international law, no prejudice need
be shown to engage the responsibility of a State that has breached a
treaty obligation. In any event, the record before the Court abounds
with evidence of grave prejudice to the rights of Paraguay and its
national.
1.7 Second, Paraguay claims that the United States breached
Article 36(2) of the Vienna Convention by applying the municipallaw
doctrine ofprocedural default to prevent Mr. Breard from seeking
relieffrom his conviction and sentence on the ground of the conceded
violation. Specifically, the United States courts held that, because
Mr. Breard had not raised bis Vienna Convention daim during the
course of his trial or post-conviction proceedings in state court, he
could not raise the daim in bis federal habeas corpus petition.
1.8 It is uncontested, however, that the reason that Mr. Breard
did not raise a Vienna Convention claim prior to the federal habeas
proceeding is that, because of the United States' breach, he had been
unaware of his rights under the Convention prior to that time. Given
that the very purpose of the consular notification provisions of Article
36( 1) is to ensure that a detained national in the position of Mr.
Breard is made aware of bis right to contact his consul, the
application of the procedural default doctrine to bar Mr. Breard from
raising his claim violated Article 36(2). That Article requires
municipal laws and regulations to be applied in a manner that allows
3
MEMORIAL
"full effect" to be given to "the purposes for which the rights
accorded under this Article are intended."
1.9 Finally, Paraguay daims that the United States breached
a binding Order of this Court when it failed to take the steps
necessary to stop the execution of Mr. Breard. The United States
contends that, by virtue of restraints imposed by United States law,
it could do nothing more to halt the execution than have the Secretary
of State request the Govemor of Virginia not to go forward. \\-'hile
that contention misstates the plenary power of the federal government
in matters of foreign relations and international obligations, it is also
wholly irrelevant as a matter of international law. The Govemor of
Virginia, a responsible official whose acts are attributable to the
United States, had full control over whether to carry out the
execution, and he determined that it should go forward despite the
Court's Order.
1.10 In opposing Paraguay's application to the United States
Supreme Court to enforce the Order, the United States advised that
court that an indication of provisional measures W1der Article 41 of
this Court's Statute is merely precatory. That position is wrong.
Particularly when read in the context of the Statute of the Court, the
terms employed, by their ordinary meaning, describe a binding order.
The "power to indicate" measures that "ought to be taken" in order to
"preserve the respective rights" of the parties can only be understood
to carry a corresponding obligation of the parties to comply.
Moreover, the abject and purpose of Article 41 is to preserve the
rights of the parties pending a binding final judgment, and that of the
Statute as a whole is to provide for the binding, judicial resolution of
disputes. These abjects and purposes would be utterly frustrated if
the parties retained a right to act prior to the final judgment in a
manner that the Court has indicated will prevent it from rendering an
effective judgment. Finally, the binding character of provisional
measures under Article 41 is confirmed by the general rule that
parties to a judicial proceeding must refrain from any step that might
prejudice the court's capacity to provide relief. Simply put, the
United States' undisputed obligation under i\rticle 94( 1) of the United
Nations Charter to abide by a judgment of this Court that a new trial
be granted Mr. Breard. or the plea offer be reconveyed, cannot be
squared with the United States' suggestion that, in the meantime, it
4
VIENNA CONVENTION ON CONSULAR RELATIONS
was free decisively to destroy the Court's capacity to provide that
relief.
1.11 This Memorial has five further Chapters. In Chapter 2,
Paraguay sets forth the facts underlying its three daims. In Chapter
3, it supplies the basis for this Court's jurisdiction over its daims
under the Optional Protocol Conceming the Compulsory Settlement
of Disputes to the Vienna Convention on Consular Relations, as well
as under principles of inherent jurisdiction. In Chapter 4, it sets out
its claims under Articles 36(1) and 36(2), respectively, of the Vienna
Convention. In Chapter 5, it sets out its claim for breach of the Order
of Provisional Measures. Finally, in Chapter 6, Paraguay prays for
remedies of. first, several specified declarations: second, an order of
non-repetition; and third, reparation in the forrn ofboth compensation
a.'ld moral damages.
5
CHAPTER2
FACTS
The Arrest and Failure of Notification
2.1 On 1 September 1992, officials of Arlington, Virginia,
arrested Angel Francisco Breard on suspicion of murder and
attempted rape. Arlington police officers searching Mr. Breard's
apartment around the time of arrest found Mr. Breard's Paraguayan
passport 1 and were aware that he was a Paraguayan national. 2
However, as the United States has advised this Court, the "'competent
authorities"' who arrested Mr. Breard and placed him in custody "did
not inform Breard that, as a national of Paraguay, he was entitled to
have Paraguay's consul notified of his arrest."3
2 .2 The competent authorities also did not inform the
Paraguayan consular post for the district embracing Arlington,
l. Affidavit of Armenia Guibi V da. de Breard (26 Sept. 1998), para. I 0,
Annex 1.
2. Stipulation, para. 2, Breard v. Angelane (E.D. Va. 1996) (No.
3 :96CV366), Annex 2; see also United States Department of State,
Consular Notification and Access ( 1998), pp. 1 & 4 (in the absence of other
information, "ail federal, state, or local officials who may, in the
performance oftheir official functions, have contact with a foreign national
in a situation triggering a requirement to notify the foreign national's
consular officiais" are to assume that a foreigner is a national of "the
country on whose passport or other travel document the foreign national
travels "), <http://www.state.gov/ global/legal affairs/ca_notification/
caprelim.html>, Annex 3; cf United States Department ofState, Foreign
Affairs Manual, 7 FAM § 413.l(a) (1984) (as to United States nationals,
"possession of a passport satisfactorily establishes both the identity and the
citizenship of the individual"), Annex 4.
3. Oral Argument, Vienna Convention on Consular Relations (Paraguay
v. United States), para. 1.4 (statement of David R. Andrews), Annex 5; see
also Stipulation, para. 2, Breard v. Ange/one (E.D. Va. 1996) (No.
3:96CV366), Annex 2.
6
VIENNA CONVENTION ON CONSULAR RELATIONS
Virginia, of Mr. Breard's arrest.4 Thus, they did not permit
Paraguayan consular officials to avail themselves of their right to
provide consular assistance to Mr. Breard upon his request.
The Plea Offer, Trial,
Conviction, and Sentence
2.3 Following indictrnent, Virginia officials offered Mr.
Breard a plea bargain in which the prosecution would seek only a life
sentence if Mr. Breard would plead guilty. 5
2.4 A "plea bargain" is an offer to a defendant by a prosecutor
of a lesser sentence in rerurn for the defendant's plea of guilty. Plea
bargaining spares the public treasury the burden of a trial and the
prosecutor the prospect of a failure to convict. The practice is
commonplace in the criminal justice system of the United States.6
Describing the practice as "an essential component of the
administration of justice," the United States Supreme Court has
encouraged its use.7
4. See Affidavit of Jorge G. Prieto (27 Aug. 1996), para. 7, Annex 6;
Affidavit of Ceferino Adrian Valdez Peralta (30 Sept. 1998), para. 4,
Annex 7; Sra. Breard Aff., para. 7, Annex 1.
5. See Petition for W rit of Habeas Corpus, Breard v. Netherland (E.D. V a.
1996) (No. 3:96CV366), para. 20 and p. 73 (verification by Angel
Francisco Breard of facts set forth in petition), Annex 8; Affidavit of
Robert L. Tomlinson II & Richard J. McCue (13 June 1995), para. 5,
Annex 9; Sra. Breard Aff., para. 4, Annex 1.
6. See United Nations, Report of the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions, Addendum: Mission to the United
States, document E/CN.4/1998/68/Add.3, para. 80.
7. Santobello v. New York, 404 U.S. 257,260 (1971).
7
MEMORIAL
2.5 Plea bargains are often offered in capital cases,8 which are
far more costly to prosecute to execution than cases seeking
punishment of a term of imprisonment.9 In the Commonwealth of
Virginia, plea bargains were commonly offered in capital cases
during the period that included Mr. Breard's arrest and trial, even
when the alleged crime involved aggravated circumstances. 10
2.6 By contrast, Paraguayan law does not permit plea
bargaining. 11 Any such agreement between the accused and a
prosecutor would be legally void and worthless in a Paraguayan
court.12 The principal means to obtain leniency in sentencing under
Paraguayan law would be to confess to and denounce the criminal
acts charged and appeal to the mercy of the court. 13
2. 7 Mr. Breard refused to authorize his appointed trial
lawyers to accept the plea offer and advised them that he intended to
confess the crime to the jury. Under Virginia law, a jury returning a
guilty verdict (as it would necessarily do if the defendant confessed)
could recommend one of only two sentences: life imprisonment or
8. See, e.g., Federal Death Penalty Resource Counsel Project, Federal
Death Penalty Prosecutions 1988-1998, p. l (September l, 1998) (listing
39 federal cases out of total of 116 brought to trial in which capital charges
were dropped in exchange for guilty plea).
9. See Spangenburg & Walsh, "Capital Punishment or Life lmprisonment?
Sorne Cast Considerations," Loyola L. Rev., Vol. 23 (1989), p. 45;
International Committee of Jurists, Administration of the Death Penalty in
the United States ( 1996 ), p. 120 n. 190 ( estimating cost of death penalty
trial and appeals at approximately US$3 million).
l O. Affidavit of William S. Geimer ( 18 Sept. 1998), para. 4, Annex 12.
11. Affidavit of José Ignacio Gonzalez Macchi (24 Sept. 1998), para. 3,
Annex 13.
12. Ibid.
13. Ibid., para. 4.
8
VIENNA CONVENTION ON CONSULAR RELATIONS
death. 14 Alarrned at this refusal, Mr. Breard's lawyers
contemporaneously drafted a memorandum describing the case
against him, his unwillingness to accept the plea offer, and their
request that he reconsider that decision, and they then had Mr. Breard
countersign the memorandum. 15
2.8 Mr. Breard pleaded not guilty and faced trial in a Virginia
state criminal court of first instance. The prosecution presented no
witnesses to the alleged crimes and relied instead on physical and
circumstantial evidence. At the close of the prosecution's evidence,
Mr. Breard waived his right not to incrirninate him.self by his ov.n
testimony, took the witness stand, and confessed to the facts of the
crimes charged, asserting that he was under a satanic curse placed
upon him by his father-in-law at the time he cornmined the crime and
that he was now acting as a witness to his new religious faith. 16 On
24 June 1993, the jury found Mr. Breard guilty. 17
2.9 On 25 June 1993, during the penalty phase of its
deliberations, the jury sent a note to the presiding judge asking how
long a term of imprisonment Mr. Breard would serve prior to
eligibility for early release if he were sentenced to life in prison. 18
14. Va. Stat. Ann. § 19.2-264.4, Annex 10.
15. Memorandum frorn Richard J. McCue and Robert Lee Tomlinson II to
Angel Breard ( 15 June 1993 ), Annex 11.
16. See Petition for Writ of Habeas Corpus, paras. 21-22, Breard v.
Netherland(E.D. Va. 1996) (No. 3:96CV366), Annex 8.
17. Ibid., para. 7.
18. Petition for Writ of Habeas Corpus Ad Subjiciendum, para. 18, Breard
v. Ange/one (Arl. Cty. Cir. Ct. 28 Apr. 1995) (No. CL 95-526), Annex 14.
In United States criminal law, an offender rnay under certain circumstances
be granted a conditional release from imprisonment, referred to as "parole,"
which allows the offender to serve the remainder of the term outside prison,
provided that he or she complies with the terms of the release.
9
MEMORIAL
The judge responded that he could not answer the jury's question.19
The jury then sent out a note ,vith a further question, asking whether
they could recomrnend life in prison without possibility of early
release. 20 After the judge declined to allow the jury to make that
recomrnendation, the jury deliberated a further six hours before
recomrnending a death sentence.21 Under Virginia law, the court may
not impose the death penalty unless the jury recommends it.22
2.10 On 22 August 1993, the trial court sentenced Mr. Breard
to death.23
2.11 Mr. Breard's refusal of the plea offer against the ad vice
of court-appointed counsel and his insistence on serving as a "-itness
to his religious faith resulted from his lack of understanding of the
significant cultural differences between the Paraguayan and United
States legal systems.24 He was, in particular, entirely unfamiliar with
the practice of plea bargaining.25 Mr. Breard neither understood nor
trusted his court-appointed trial counsel.26 Similarly, trial counsel
could not understand or appreciate Mr. Breard's belief that leniency
would result from his confession to the jury.
2.12 Had Mr. Breard known about his rights under the
Vienna Convention, he would have exercised those rights by seeking
19. Ibid.
20. Ibid., para. 21.
21. Ibid., paras. 21, 23.
22. Va. St. Ann. §19.2-264.4, Annex 10.
23. See Petition for Writ of Habeas Corpus, para. 8, Breardv. Netherland
(E.D. Va. 1996) (No. 3:96CV366), Annex 8.
24. See Sra. Breard Aff., para. 4, Annex 1.
25. Ibid.
26. Ibid., paras. 5-6; Affidavit of Alexander H. Slaughter (5 Oct. 1998),
para. 4, Annex 15; Statement of Ricardo Caballero Aquino ( l Oct. 1998),
para. 8, Annex 16.
10
VIENNA CONVENTION ON CONSULAR RELATIONS
the assistance of the Paraguayan consulate. 27 The Paraguayan
consulate, which makes a practice of intervening in every case in
which it is notified of the arrest of a Paraguayan national, would, if
notified, have assisted Mr. Breard by explaining the differences
between the legal systems of Paraguay and the United States. 28 In
light of those differences, they would have advised Mr. Breard to
accept the plea bargain that the Commonwealth's Attorney had
offered on behalf ofVirginia. 29 Had Mr. Breard been so advised by
Paraguay's consul, he would have accepted the plea offer, avoided
trial, and eliminated the prospect of receiving a capital sentence. 30
Appellate and Habeas Proceedings
in the Virginia Courts
2.13 Mr. Breard appealed his conviction and sentence to the
Virginia Suprerne Court, which affirrned, and the United States
Supreme Court denied his petition to issue a discretionary writ of
certiorari to review that judgment. 31
2.14 Mr. Breard then filed a petition for a writ of habeas
corpus in the Circuit Court of Arlington County. Among the daims
Mr. Breard raised in his habeas petition was that his appointed
counsel had not effectively assisted him in the criminal proceedings
in the Virginia court.32 To counter that claim, Virginia officiais
27. Caballero Strnt., paras. 9-10, Annex 16; Sra. Breard Aff., para. 9,
Annex 1.
28. Valdez Aff., paras. 5-6, Annex 7; Prieto Aff., para. 10, Annex 6.
29. Valdez Aff., para. 8, Annex 7.
30. Sra. Breard Aff., para. 9, Annex l; Caballero Stmt., para. 10, Annex
16.
31. Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 ( 1994 ); Breard
v. Virginia, 513 U.S. 971, 115 S. Ct. 442 (1994) (mem.).
32. Petition for Writ of Habeas Corpus Ad Subjiciendum, para. 192 et seq.,
( continued ... )
11
MEMORIAL
procured from Mr. Breard's trial counsel an affidavit swearing that,
among other things, they had secured for Mr. Breard a clear offer
from the prosecutor that he would receive a penalty of life in prison
in exchange for a confession to the crimes charged. 33 Virginia
officiais relied on this affidavit in successfully moving the Arlington
County Circuit Court ta dismiss Mr. Breard's petition.34 That
dismissal was affirmed by the Virginia appellate court. 35
2.15 Throughout these proceedings, Mr. Breard remained
uninformed of his right ta consult the Paraguayan consul, and no
Paraguayan official participated therein.
Mr. Breard's Habeas Proceeding
in the Federal Courts
2.16 In April 1996, Paraguayan officials learned for the first
time of Mr. Breard's imprisonment and impending execution in the
United States and immediately began rendering legal and other
assistance ta Mr. Breard.36 On 30 August 1996, with the assistance
of Paraguayan consular officiais and new, court-appointed legal
counsel, Mr. Breard took the final step available to him for
challenging his conviction and filed a petition for writ of habeas
corpus in the United States District Court for the Eastern District of
32. ( ... continued)
Breard v. Angelane (Ar!. Cty. Cir. Ct. 28 Apr. 1995) (No. CL 95-526),
Annex 14.
33. See Tomlinson/McCue Aff., para. 5, Annex 9.
34. Motion to Disrniss, p. 11, Breardv. Ange/one (Ar!. Cty. Cir. Ct. 14
June 1995) (No. CL 95-526), Annex 17.
35. Petition for Writ of Habeas Corpus, para. 11, Breard v. Netherland
(E.D. Va. 1996) (No. 3:96CV366), Annex 8.
36. Caballero Stmt., para. 3, Annex 16; Valdez Aff., para. 4, Annex 7.
12
VIENNA CONVENTION ON CONSULAR RELATIONS
Virginia, a federal court of first instance.37 Having finally been
apprised of his rights under the Vienna Convention, Mr. Breard
claimed for the first time that Virginia officials had violated those
rights and sought relief from his conviction and sentence on that
ground, among others. 38
2.17 Upon the involvement of Paraguayan consular officiais
in his federal habeas corpus proceedings, Mr. Breard began to
cooperate in his own defense.39 Paraguayan consular officiais
understood Mr. Breard's cultural perspective, explained his choices
in the Vnited States legai system in a way that he could understand,
and fostered trust that had previously been lacking between Mr.
Breard and his lav.·yers.40
Paraguay' s Action
in the Federal Courts
2.18 On 16 September 1996, the Republic of Paraguay filed
a civil action in the United States District Court for the Eastern
District of Virginia, aileging violations of its own rights under both
the Vienna Convention and a treaty of friendship, commerce, and
navigation between Paraguay and the United States.41 Paraguay
sought, among other relief, vacatur of Mr. Breard's conviction and
sentence and an order that any future proceedings against Mr. Breard
37. Petition for Writ of Habeas Corpus, Breardv. Netherland(E.D. Va.
1996) (No. 3:96CV366), Annex 8.
38. Ibid., paras. 23-60.
39. See Caballero Stmt., paras. 6-10, Annex 16; Slaughter Aff., para. 4,
Annex 14.
40. Ibid.
41. Paraguay v. Allen, 949 F. Supp. 1269, 1271-1272 (E.D. Va. 1996).
13
MEMORIAL
be conducted in accordance with the terms of the Vienna
Convention. 42
Judgments of the District Court
and the Court of Appeals in the
Habeas Proceeding and Paraguay's Action
2.19 On 27 November 1996, the federal district court rejected
Mr. Breard's daim under the Vienna Convention. Relying on a
municipal law doctrine of "procedural default," the court held that,
because Mr. Breard had not raised a claim under the Vienna
Convention in his state proceedings, he could not raise the daim in
the federal habeas proceeding. -+3 On 22 January 1998, the United
States Court of Appeals for the Fourth Circuit (the intermediate
federal appellate court) affirmed the judgment.44
2.20 On 27 November 1996, the federal district court also
dismissed Paraguay's complaint. The court held that because Virginia
officials were by then permitting Paraguayan consular officials access
to 􀄺. Breard, the injunction Paraguay sought against the execution
was the kind of retrospective relief that a federal court did not have
jurisdiction to order against state officials.45 On 22 January 1998, the
same day it rendered its judgment in Mr. Breard's habeas proceeding,
the Court of Appeals also affirmed in Paraguay's case.46
2.21 Taken together, the judgments of the Court of Appeals
meant that, while it was Virginia officiais who had violated the
Convention by failing to provide the required notice, at the time
Mr. Breard learned ofhis right and Paraguay learned ofhis detention
42. Ibid., p. 1272.
43. Breardv.Netherland,949F.Supp.1255, 1263(E.D.Va.1996),Annex
18.
44. Breardv. Pruett, 134 F.3d 615 (4th Cir. 1998), Annex 19.
45. Paraguay v. Allen, 949 F. Supp. 1269 (E.D. Va. 1996).
46. Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998).
14
VIENNA CONVENTION ON CONSULAR RELATIONS
it was already too late for either of the se intended beneficiaries of the
required notice to raise the daim in the United States courts.
Setting of the Execution Date
and Commencement of Proceedings
in the United States Supreme Court
2.22 On 24 February 1998, Paraguay filed a petition for writ
of certiorari in the United States Supreme Court to review the
judgment of the Court of Appeals.47
2.23 On 25 February 1998, the Virginia court that had
sentenced Mr. Breard set an execution date of 14 April 1998.48
2.24 On 11 March 1998, Mr. Breard also filed a certiorari
petition in the Supreme Court.49
2.25 On 23 March 1998, Mr. Breard applied to the Court of
Appeals for a stay of his execution, and on 30 March 1998, filed a
similar application to the Supreme Court. 50 On 24 March 1998,
Paraguay applied to the Court of Appeals for a stay of or injunction
against Mr. Breard's execution, and on 1 April 1998, filed a similar
application to the Supreme Court.51
47. Petition for Writ ofCertiorari, Paraguay v. Gilmore, _ U.S. _, 118
S. Ct. 1352 (24 Feb. 1998) (Nos. CR 92-1467, 1664-1668) (No. 97-1390).
48. Order, Commonwealth v. Breard (Ar!. Cty. Cir. Ct. 25 Feb. 1998)
(Nos. CR 92-1467, 1664-1668).
49. Petition for Writ ofCertiorari, Breardv. Greene,_ U.S. _, 118 S. Ct.
1352 (11 Mar. i998) (No. 97-8214).
50. Application for Stay of Execution, Breard v. Greene, 134 F .3d 615
(4th Cir. 23 Mar. 1998) (No. 96-25); Application for Stay ofExecution,
Breard v. Greene,_ U.S. _, 118 S. Ct. 1352 (30 Mar. 1998) (No. 97-
8214).
51. Application for Stay of or Injunctîon Against Execution Pending
( continued ... )
15
MEMORIAL
Diplomatie Negotiations
2.26 In addition to pursuing its claim in the courts of the
United States, Paraguay also engaged in diplomatie discussions in an
attempt to gain the assistance of the United States in remedying the
breach of the Vienna Convention and the treaty of friendship,
navigation, and commerce.
2.27 By letter dated 10 December 1996, the Ambassador of
Paraguay sought the good offices of the United States Department of
State "in order that a new trial may be granted Paraguayan citizen
Angel Breard within the framework of constitutional guarantees for
proper defense against a criminal accusation as well as the strict
fulfillment of the stipulations of international treaties covering acts of
such nature. " 52
2.28 Having received no response, Paraguay repeated its
request in a letter dated 3 June 1997, the day before oral argument in
the Court of Appeals. 53
2.29 In a response bearing the same date, the United States
Department of State expressed disagreement \VÎth Paraguay's legal
position and offered no assistance to Paraguay in exercising its rights
51. ( ... continued)
Disposition of Petition for Writ of Certiorari, Paraguay v. Gi/more, 134
F.3d 622 ( 4th Cir. 24 Mar. 1998) (No. 96-2770); Application for Stay of or
Injunction Against Execution Pen ding Disposition of Petition for Writ of
Certiorari, Paraguay v. Gilmore, _ U.S. _, 118 S. Ct. 1352 (1 Apr. 1998)
(Nos. 97-1390, A-738).
52. Letter from His Excellency Jorge J. Prieto, Am bassador of Paraguay,
to His Excellency Jeffrey Davidow, Assistant Secretary of State for InterAmerican
Affairs, United States Department of State ( 10 Dec. 1996).
53. Letter from His Excellency Jorge J. Prieto, Ambassador of Paraguay,
to His Excellency Jeffrey Davidow, Assistant Secretary of State for InterAmerican
Affairs, United States Department of State (3 June 1997).
16
VIENNA CONVENTION ON CONSULAR RELATIONS
under the treaties.54 The United States confirmed this position in a
letter dated 7 July 1997.55
2.30 During the week prior to instituting proceedings in this
Court, the Government of Paraguay engaged in further diplomatie
discussions with the Government of the United States and forbore
from instituting proceedings in consideration of those discussions.
The diplomatie negotiations failed when the United States declined
to provide Paraguay assurances that it would stop Mr. Breard's
execution. 56
Paraguay's Application to the Court
and Request for
Provisional Measures of Protection
2.31 On 3 April 1998, Paraguay filed in this Court its
Application Instituting Proceedings and a Request for Provisional
Measures of Protection. On 7 April 1998, the Court held a hearing on
Paraguay's Request.
2.32 On 9 April 1998, two days after the hearing, the Court
issued a unanimous Order. 57 The Court stated that although it "will
not order interim measures in the absence of 'irreparable prejudice
54. Letter from James H. Thessin, Deputy Legal Adviser, United States
Department of State, to His Excellency Jorge J. Prieto, Ambassador of
Paraguay (3 June 1997).
55. Letter from James H. Thessin, Deputy Legal Adviser, United States
Department of State, to His Excellency Jorge J. Prieto, Ambassador of
Paraguay (7 July 1997).
56. See Oral Argument, Case Conceming Vienna Convention on Consular
Relations (Paraguay v. Uniled States), Provisional Measures, para. 2.26
(statement of Catherine Brown); ibid., para. 4.19, (statement of Michael J.
Matheson), Annex 5.
57. Vienna Convention on Consular Relations, (Paraguay v. United
States), Provisional Measures, Order of9 April 1998.
17
MEMORIAL
... to rights which are the subject under dispute,"' 58 the execution of
Mr. Breard as scheduled "would render it impossible for the Court to
order the relief that Paraguay seeks and thus cause irreparable hann
to the rights it claims."59 Accordingly, the Court issued an order that
the United States "take all measures at its disposal to ensure that
Angel Francisco Breard is not executed pending the final tlecision in
these proceetlings .... "60
2.33 In the Ortler on the Request, the Court also stated that it
would take steps to "to ensure that any decision on the merits be
reached with all possible expedition." Consistent with that objective,
the Court issued a separate Ortler on the same tlay setting an
expedited schedule for wTitten submissions.61
Response of the United States
to the Provisional Measures Order
2.34 By letter dated Sunday, 5 April 1998, and submitted the
next day, Paraguay advised the United States Supreme Court of its
filing in this Court and of the hearing scheduled for 7 April.62 On
8 April, the Supreme Court issued an order requesting the United
States to submit its views on the petitions for certiorari filed by Mr.
Breard and Paraguay by 17.00 hours, 13 April, the day before the
58. Ibid., para. 36 (citations omitted) (ellipsis in original).
59. Ibid., para. 37.
60. Ibid., para. 41(I).
61. Vienna Convention on Consular Relations. (Paraguay v. United
States), Time Limits. Order of 9 April 1998.
62. Letter from Donald Francis Donovan, Counsel for the Republic of
Paraguay, to William K. Suter, Clerk, Supreme Court of the United States
( 5 Apr. 1998).
18
VIENNA CONVENTION ON CONSULAR RELATIONS
execution was scheduled to be carried out. 63 On 9 April, the day of
the Order, the United States submitted a copy to the Supreme Court. 64
2.35 On 10 April 1998, Mr. Breard filed an original petition
to the Supreme Court for a writ of habeas corpus and a supplemental
application for a stay of execution, both based on this Court's Order
from the previous day.65
2.36 On the same day, Paraguay also submitted a
supplemental application for a stay of or injunction against the
execution on the additional groWld of this Court's Ortler, urging the
Court to give effect to the Order as a matter of treaty obligation and
comity.66
2.37 On Monday, 13 April 1998, Paraguay moved the
Supreme Court for leave to file an original action requesting the
Court to enjoin the execution on the ground of this Court's Order,
reiterating that it should enforce the Order as a matter of treaty
obligation and comity.67
2.3 8 Also on that day, Paraguay wrote to the Solicitor
General of the United States (who represents the United States before
63. Order, In re Angel Francisco Breard, _ U.S. _, 118 S. Ct. 1352
(8 Apr. 1998) (Nos. 97-8214, A-732).
64. Letter from Seth P. Waxman, Solicitor General, Department of Justice,
to Willîam K. Suter, Clerk, Supreme Court of the United States (9 Apr.
1998).
65. In re Angel Francisco Breard, _ U.S. _, 118 S. Ct. 1352 (10 Apr.
1998) (Nos. 97-8660, A-767); Supplemental Brief in Support of
Application for a Stay of Execution, Breard v. Greene,_ U.S. _, 118
S. Ct. 1352 (10 Apr. 1998) (No. 97-8214).
66. Supplemental Application for Stay of or lnjunction Against Execution,
Paraguay v. Gilmore, _ U .S. _, 118 S. Ct. 1352 (10 Apr. 1998) (Nos. 97-
1390, A-738).
67. Paraguay v. Gilmore, _ U.S. _, 118 S. Ct. 1352 (1998) (Nos. 125
Orig., A-771).
19
MEMORIAL
the Supreme Court) and the Legal Advisor to the Department of State
(who, as Agent, represents the United States before this Court) to call
on the United States to fulfill its obligations pursuant to the
Provisional Measures Order.68
2.39 Later that day, at or about 17.00 hours, the United States
took two separate but coordinated actions in response to the
Provisional Measures Order.69
2.40 In response to the Supreme Court's invitation to the
United States to express its views, the Solicitor General of the United
States, joined by the Legal Advisor, submitted a brief to the Supreme
Court arguing that this Court's Ortler was "precatory rather than
mandatory" and urging the court to deny each of Mr. Breard's and
Paraguay's pending requests for relief from the execution.70 The
United States advised the court that, while "[t]his case ... does not
raise any questions concerning the ability of the United States to sue
in order to enforce compliance with the Vienna Convention," 71 the
means available to stop the execution "include[d] only persuasion [of
68. Letter from Donald Francis Donovan, Counsel to the Republic of
Paraguay, to Seth P. Wax.man, Solicitor General, United States Department
of Justice, and David R. Andrews, Legal Advisor, United States
Department of State (13 Apr. 1998), Annex 20.
69. See State Department Regular Briefing, 15 Apr. 1998, available in
LEXIS, Executive Branch Library, Federal News Service File (James
Rubin, briefer) ("For those ofyou who seemed to have misunderstood this,
the United States acted as one. The Department of Justice briefbefore the
Supreme Court was signed by the legal advisor of the State Department .
. . . There is no disagreement bet\.veen the State Department and the Justice
Department. ").
70. See Brief for the United States as Amicus Curiae, p. 51, Breard v.
Greene,_ U.S. _, 118 S. Ct. 1352 (1998), Annex 21.
71. Ibid., p. 15 n. 3 ( citing United States v. Arlington County, 669 F .2d 925
(4th Cir.), cert. denied, 459 U.S. 801 (1982)).
20
VIENNA CONVENTION ON CONSULAR RELATIONS
the Governor of Virginia] and not le gal compulsion through the
judicial system. "72
2.41 At the same time, Secretary of State Madeleine K.
Albright wrote a letter to the Governor of the Commonwealth of
Virginia, James S. Gilmore III. The letter advised the Governor that
this Court's Order was "non-binding," but requested that the Governor
grant a reprieve of Mr. Breard's execution.
73
The Secretary's letter
was appended to the brief of the United States to the Supreme
Court.74
2.42 On 14 April 1998, at approximately 03.00 hours,
Paraguay submitted a reply to the Solicitor General's brief, again
urging the Supreme Court to give effect to the Provisional Measures
Order.
75
2.43 At approximately 20.00 hours, the Supreme Court issued
a per curiam decision denying all the pending requests for relief. 76
72. Ibid., p. 51. See also State Department Regular Briefing, 15 Apr.
1998, available in LEXIS, Executive Branch Library, Federal News
Service File (James Rubin, briefer) ("Weil, we believe we did take the
[International Court of Justice's] request seriously, and we believe we
found the right balance between making the case before the Supreme Court
that there was no requirement to stay the execution and [Secretary of State
Albright's] writing this letter to the governor requesting such a stay of
execution. ").
73. Letter from Madeleine K. Albright, Secretary ofState of the United
States, to James S. Gilmore III, Governor, Commonwealth of Virginia
( 13 Apr. 1998), Annex 22.
74. See Brieffor the United States as Amicus Curiae, op. cit.
75. Reply to the Brief for the United States as Amicus Curiae, Paraguay
v. Gilmore,_ U.S. _, 118 S. Ct. 1352 (14 Apr. 1998) (Nos. 97-1390, A-
738).
76. Breardv. Greene,_ U.S._,118 S. Ct. 1352 (1998), Annex 23.
21
MEMORIAL
2.44 Immediately upon learning of the decision, Mr. Breard
and Paraguay each filed a new complaint in the United States District
Court for the Eastern District of Virginia asking that the court give
effect to the Provisional Measures Order; each also sought emergency
relief to stay or enjoin the then•imminent execution.77 At about 21.00
hours, a:ft:er a brief contested hearing, the district court denied relief.
2.45 Both Paraguay and Breard took emergency appeals to
the United States Court of Appeals for the Fourth Circuit, which
affirmed the district court's denials of relief.
2.46 Shortly after 22.00 heurs, the Governor announced that
he would not grant a reprieve_-::s He first explained that "[t]he U.S.
Department of Justice, together with the Virginia Anorney General,
[made] a compelling case that the International Court of Justice [had]
no authority to interfere" with Virginia's criminal justice system. As
a further reason for refusing a reprieve, the Governor stated that,
"[s]hould the International Court 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 ruling [of] the International Court."79
2.47 Mr. Breard's execution by lethal injection was
commenced at approximately 22.30 and completed at approximately
22.39 hours.80
77. Corn plaint, Breard v. Reno (E.D. Va. 14 Apr. 1998) (No. 3 :98CV226);
Complaint, Paraguay v. Gilmore (E.D. Va. 14 Apr. 1998) (No.
3 :98CV227), voluntarily dism'd without prejudice (27 Apr. 1998).
78. Statement by Governor Jim Gilmore Concerning the Execution of
Angel Breard ( 14 Apr. 1998), Annex 24.
79. Ibid.
80. Affidavit of Nancy Huerta (5 Oct. 1998), paras. 11-12, Annex 25.
22
VIENNA CONVENTION ON CONSULAR RELATIONS
Post-Execution Letters
2.48 The Provisional Measures Order required the United
States to "inform the Court of all Measures which it has taken in
implementation ofthis Order.11
81
2.49 On 15 April 1998, the day after the execution, the
United States transmitted a letter to this Court advising the Court of
that fact. The United States further advised that it had taken the
Order "seriously into account" and had taken "all measures la\\11.llly
at its disposa!" to comply with the Court's Order.82
2.50 By letter dated 28 April 1998, Paraguay took issue \\ith
that assertion. 83
81. Case Concerning the Vienna Convention on Consular Relation,
(Paraguay v. United States}, Provisional Measures, Order o/9 April 1998,
para. 41 (II).
82. Letter from David R. Andrews, Agent of the United States of America,
to His Excellency Eduardo V alencia-Ospina, Registrar, International Court
of Justice ( 15 Apr. 1998) ( citation and internai quotation marks omitted),
Annex 26.
83. Letter from His Excellency Manuel Marîa C:iceres, Agent of Paraguay,
to His Excellency Eduardo Valencia-Ospina, Registrar, International Court
of Justice (28 Apr. 1998), Annex 2 7.
23
CHAPTER3
THE COURT HAS JURISDICTION
OVER P ARAGUA Y'S CLAIMS
3.1 At the hearing on Paraguay's request for provisional
measures, the United States challenged the Court'sjurisdiction to hear
Paraguay's daims. Article 36(6) of the Statute provides that "[i]n the
event of a dispute as to whether the Court has jurisdiction, the matter
shall be settled by the decision of the Court." The Court has also held
that, even apart from Article 36(6), "[t]he judicial character of the
Court and rule[s] of general international law ... are sufficient to
establish that the Court is competent to adjudicate on its own
jurisdiction .... "84
3.2 The Court is plainly competent, therefore, to deterrnine
its jurisdiction to hear Paraguay's daims. It is also plainly competent
to hear each of Paraguay's claims.
I.
The Optional Protocol Gives this Court
Jurisdiction over Any Dispute Arising out of the
Application or Interpretation of the Convention
3.3 Paraguay and the United States are both members of the
United Nations and, therefore, parties to the Statute of this Court. 85
The Statute gives this Court "jurisdiction . .. [in] all matters
specifically provided for ... in treaties and conventions in force."86
84. Nottebohm, Preliminary Objection, Judgment, lC.J. Reports 1953,
p. 120.
85. U.N. Charter, art. 93.
86. I.C.J. Statute, art. 36( 1 ).
24
VIENNA CONVENTION ON CONSULAR RELATIONS
3 .4 Paraguay and the United States are also parties to the
Optional Protocol Concerning the Compulsory Settlement of
Disputes to the Vienna Convention on Consular Relations (the
"Optional Protocol"). 87 In the preamble to the Optional Protocol,
emphasis supplied, the States Parties
[ e ]xpress[ ed] their wish to resort in ail 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, unless some other form of settlement
has been agreed upon by the parties within a
reasonable period ....
Accordingly, by Article I, emphasis supplied, they agreed that
[ d]isputes 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 ....
3.5 The Court need look no further than the ordinary meaning
of the text of the Optional Protocol, including its preamble, to
determine the scope of its jurisdiction. As the United States has
previously advised the Court, Article I of the Optional Protocol is a
"model compromissory clause, providing ... in the clearest manner
for the compulsory jurisdiction of the Court over any dispute arising
out of the interpretation or application of the Vienna Convention[]
••••
1188 "The clarity and precision of Article l" Ieave no doubt of the
broad scope of disputes that the parties intended to bring within the
87. Optional Protocol Conceming the Compulsory Settlement of Disputes,
accompanying the Vienna Convention on Consular Relations, 24 April
1963, 596 U.N.T.S. 261, 21 U.S.T. 77,
88. Memorial of the United States, United States Diplomatie and Consular
Staff in Tehran, IC.J Pleadings 1980, p. 142 (interna! quotations omitted)
(emphasis added); see ibid., pp. 142-44.
25
MEMORIAL
jurisdiction of this Court: "any dispute" arising frorn the
Convention. 89
II.
The Court Has Jurisdiction Over the Dispute
Arising From the United States' Breach of Article 36(1)
3 .6 Paraguay's first claim is that the United States violated the
Vienna Convention by failing to provide its national Angel Francisco
Breard the notification required by Article 36( 1 ). lt would be hard to
state a daim that more squarely "aris(es] out of the interpretation or
application of the Convention."
3. 7 Nevertheless, at the hearing on provisional measures, the
United States contended that, because it had conceded that it had
breached its obligation to Paraguay under Article 36(1) in the case of
Mr. Breard, Paraguay's Application raised no "dispute" within the
meaning of the Optional Protocol.
3.8 In the Tehran Hostages Case, the United States
addressed, and peremptorily dismissed, a virtually identical argument.
There, the United States anticipated the argument that because Iran's
conduct so manifestly lacked legal justification, there was no dispute
for the Court to resolve. 90
3.9 The United States characterized such an argument as
"specious." The United States explained that
the sum and substance of every case brought to the
Court under the comprornissory 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
89. Ibid., p. 142 n. 2.
90. Oral Argument, United States Diplomatie and Consular Staff in
Tehran, lC.J Pleadings 1980, p. 279 (statement of Stephen M. Schwebel).
26
VIENNA CONVENTION ON CONSULAR RELATIONS
an arguable claim that a treaty has been violated but
lacks jurisdiction where there is a manifestly wellfounded
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.91
Equally here, the United States' candid concession that Paraguay's
rights under Article 36(1) have been violated cannot defeat the
jurisdiction to which the United States has consented.
3.10 Moreover, the United States' concession plainly cannot
defeat the Court's jurisdiction where, as here, there remains a
fundamental dispute over the remedy owed. A dispute is "a
disagreement on a point of law or fact, a conflict of legal views or
interests between parties. "92 As the hearing on provisional measures
demonstrated, the parties here disagree about, among other things, (a)
whether the Vienna Convention affords a remedy in the nature of
vacatur of a criminal conviction; (b) whether prejudice is a
prerequisite to any such remedy; (c) whether the remedies available
for a violation of the Convention must be found within the four
corners of the Convention itself, as the United States has asserted, or
can instead be identified by resort to general principles of state
responsibility and remedies; and ( d) whether Paraguay is entitled to
any remedy beyond the bare expression of regret relied upon by the
United States.
91. Ibid
92. East Timor, Judgment, J.C.J. Reports 1995. p. 99; see also Northern
Cameroons, Judgment, J.C.J Reports 1963. p. 27: J\1avrommatis Palestine
Concessions, Judgment No. 2, 1924. P.CJ.J. Series A, No. 2, p. 11; see
also I.C.J. Statute, art. 36(2) (listing among acceptable disputes for the
Court th ose concern ing "the nature or extent of the reparation to be made
for the breach of an international obligation").
27
MEMORIAL
3.11 At a minimum, "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 Articles 5 and 36 thereof 1193
This Court has jurisdiction over that dispute.
III.
The Court Has Jurisdiction Over the Dispute
Arising From the United States' Breach of Article 36(2)
3 .12 Paraguay's second claim is that the United States
violated Article 36(2) of the Convention by applying a municipal-law
doctrine of procedural default to bar wlr. Breard from raising a claim
un.der the Vienna Convention after he learned that he had been
deprived of his rights to consular notification and access under the
Convention. According to Paraguay, application of the doctrine in
these circumstances violates the command of Article 36(2) 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
[Article 36] are intended."
3 .13 The federal courts of the United States applied the
doctrine of procedural default to bar wlr. Breard's claim.94 The
United States advised the Supreme Court that the doctrine applied. 95
Thus, there is a dispute between the parties over the application of
that doctrine in light of Article 36(2).
3.14 Because this claim, too, arises out of the interpretation
and application of the Convention, the Court has jurisdiction to hear
it.
93. Vienna Convention on Consular Relations (Paraguay v. United States
of America), Provisional Measures, Order of 9 April 1998, para. 31.
94. Breard v. Greene, _ U.S. _, 118 S. Ct. 1352, 1354-55 (1998) (per
curiam).
95. Brief of the United States as Amicus Curiae, pp. 37-38, 41-45. Breard
v. Greene,_ U.S. _, 118 S. Ct. 1352 (1998).
28
VIENNA CONVENTION ON CONSULAR RELATIONS
IV.
The Court Has Jurisdiction Over the Dispute
Arising From the United States' Breach
of the Provisional Measures Order
3.15 Paraguay's third claim is that the United States has
violated the Ortler of Provisional Measures.
3 .16 In its brief of 13 April 1998 to the United States
Supreme Court, the United States contended that the Ortler was
merely precatory. In its letter of 15 April 1998 to this Court, t.he
United States contended that because, in its view, it had taken the
Ortler seriously into account, and because the Secretary of State had
requested the Govemor to stay the execution, it had complied with
the Ortler.
3 .17 Paraguay takes issue with these statements. I t contends
that (a) because responsible officiais whose conduct is attributable to
the United States could have halted the execution, but did not, the
United States violated the Ortler and (b) the Order was binding.
3.18 There is thus a dispute over the United States'
compliance with the Ortler of Provisional Measures entered in this
proceeding. The Court has jurisdiction over that dispute both under
the Optional Protocol and as a matter of its inherent jurisdiction.
3 .19 First, the Court has jurisdiction under the Optional
Protocol. Paraguay came to this Court to enforce its rights under the
Vienna Convention. The Court issued the Ortler of Provisional
Measures in order to preserve those rights pending its resolution of
the merits. The Order therefore constituted the Court's provisional
"interpretation and application" of the Convention. The parties'
dispute whether the United States complied with the Order is
therefore a dispute "arising out of the interpretation or application" of
the Convention.
3.20 In the Fisheries Jurisdiction Case, the Court had issued
orders indicating provisional measures that, among other things,
29
MEMORIAL
called upon Iceland to take no action to aggravate or extend the
dispute over fishing rights in waters surrounding the island. 96
Germany claimed that, after the orders had issued but prier to its
submission of its memorial on the merits, Icelandic coastal patrol
boats had forcibly interfered with German registered fishing
vessels. 97 In its memorial, Germany requested a declaration that
Iceland's post-application actions were unlawful under principles of
international law. 98
claim:
3 .21 The Court held that it had jurisdiction to consider the
The matter raised . . . is part of the controversy
between the Parties, and constitutes a dispute relating
to Iceland's extension of 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 th[e]
Application. As such it falls within the scope of the
Court' s jurisdiction defined in the compromissory
clause [ of the j urisdiction-conferring instrument]. 99
So too here, Paraguay's daim arising from the United States' failure
to take all measures at its disposai to prevent the execution of Mr.
Breard "is part of the controversy between the Parties, and constitutes
a dispute relating" to the United States' adherence to the Vienna
Convention.
96. Fisheries Jurisdiction (Federal Republic of Germany v. Jceland),
Interim Protection, Order of 17 August 1972, l.C.J. Reports 1972, p. 30;
Fisheries Jurisdiction (Federal Republic of Germany v. Jce!and), Interim
Protection, Order of 12 July 1973, LC.J. Reports 1973, p. 313.
97. Fisheries Jurisdiction (Federal Republic of Germany v. Jceland),
Merits, Judgment, 1.C.J. Reports 1974, p. 179.
98. Ibid.
99. Ibid., p.203.
30
VIENNA CONVENTION ON CONSULAR RELATIONS
3.22 Reference to the preai"D.ble of the Optional Protocol
removes any conceivable doubt about the Court's jurisdiction over
this claim. 100 The preamble states the parties' "wish to resort in ail
matters conceming them in respect of any dispute arising out of the
interpretation or application of the Convention." Even if the dispute
over the Order did not constitute a dispute arising out of the
interpretation or application of the Convention, it would surely
qualify as a "matter concerning" Paraguay and the United States "in
respect of' their original dispute over the Convention, which the
Order was intended to freeze.
3 .23 Second, the Court has jurisdiction over the parties'
dispute with respect to the Order as a matter of its inherent
jurisdiction.
3.24 The Court has l􀃑ng recognized that there are attributes
of its authority that inhere in its status as a court of justice or court of
law. In the Nuclear Tests Cases, the Court found that it
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
ofthejudicial function" of the Court, and to "maintain
its judicial character." Such inherent jurisdiction ...
derives from the mere existence of the Court as a
judicial organ established by the consent of States,
100. See Vienna Convention on the Interpretation of Treaties, 23 May
1969, 1155 U.N.T.S. 331, 8 I.L.M. 679, art. 31 (2): see also United States
Diplomatie and Consular Staff in Tehran, Judgment, I.C.J Reports 1980,
pp. 25-26 (relying on preamble in construing Articles II and III of Optional
Protocol).
31
MEMORIAL
and is conferred upon it in order that its basic judicial
functions may be safeguarded.101
The Court's inherent jurisdiction to safeguard "its basic judicial
functions" must encompass the authority to determine when a party
has complied with an order of the Court and what consequences
should flow from noncompliance. I02 Indeed, if the Court has
jurisdiction to determine compliance with more mundane orders, such
as procedural rulings, surely it has jurisdiction to detennine
101. Nuclear Tests (Australia v. France), Judgment, lC.J Reports 1974,
pp. 259-260 (quoting llforthem Cameroons, Judgment, lC.J Reports 1963,
pp. 15, 29-30); see also Northem Cameroons, Judgment, I.C.J Reports
1963, p. 103 (separate opinion of Judge Fitzmaurice) ("[a]lthough much
( though not ail) of this incidental jurisdiction is specifically provided for
in the Court's Statute, or in Rules of Court which the Statute empowers the
Court to make, it is really an inherent jurisdiction, the power to exercise
which is a necessary condition of the Court - or of any court of law -
being able to function at ail"); Elihu Lauterpacht, "'Partial' Judgments and
the Inherent Jurisdiction of the International Court of Justice," in Fifty
Years of the International Court Justice: Essays in Honor of Sir Robert
Jennings (Vaughan Lowe & Malgosia Fitzmaurice, eds., 1996), p. 4 77 ("it
would no doubt be the case that, even in the absence of statutory provision,
the Court would be entitled to deal with [ among other things, interim
protection, preliminary objections, counter-claîms, intervention] ... in the
exercise of its 'inherent' jurisdiction ... ").
l 02. Bin Cheng, Generaf Princip/es of International Law: As Applied by
International Courts and Tribuna/s (1953), p. 266 ("[w]here a tribunal has
jurisdiction in a particular matter, it is also competent with regard to all
relevant incidental questions, subject to express provision to the contrary");
cf Shabtai Rosenne. The Law and Practice of the International Court of
Justice, 1920-1996, Vol. II (1997), p. 600 ("[w]here the inherent
jurisdiction relates to matters not specifically regulated in the Statute or in
the Rules of the Court, it may be inferred to have been assumed by the
Court, in its designated capacity of judicial organ. applying to a concrete
problem general principles of international procedural law not specifically
mentioned in the Statute or the Rules").
32
VIENNA CONVENTION ON CONSULAR RELATIONS
compliance with a rnatter of the import of an indication of provisional
measures. 103
103. Shabtai Rosenne, op. cit., Vol. II, p. 602 ("In addition to 'mainline' or
'merits' jurisdiction and the related incidental jurisdiction, the Court
possesses inherent jurisdiction to contrai ail aspects of the proceedings
themselves."); Elihu Lauterpacht, op. cit., p. 475 ("the Courtis the master
of îts own procedure .... it is for the Court to decide ... in what manner
a case should be dealt with").
33
CHAPTER4
THE UNITED STATES VIOLATED THE VIENNA
CONVENTION ON CONSULAR RELATIONS
4.1 The record in this case establishes that the United States
violated Paraguay's rights under the Vienna Convention in two
respects. First, the United States undisputedly failed to provide Mr.
Breard the notice that the Convention obliged it to provide. The
United States thereby deprived Paraguay of the right to provide
consular assistance to its national guaranteed by Articles 5 and 36 of
the Convention. Second, by relying on the municipal-law doctrine of
procedural default to deny Mr. Breard any opportunity to receive
consular assistance before and during the trial on the charges against
him, the United States violated its obligations under Article 36(2) of
the Convention and well-established customary international law.
4.2 As the preamble to the Vienna Convention suggests, the
rights at issue in this case have been a feature of international law
from its inception, for "[c]onsular relations have been established
between peoples since ancient times." An early form of consular
assistance was recorded in the ancient Greek city States, where
foreign merchants and seamen sought the protection of influential
local nationals designated to protect their interests and act on their
behalfbefore local tribunals and assemblies. 104 This practice evolved
into the selection of magistrates from ·within the expatriate
104. Luke Lee, Consular Law and Practice (1991), p. 4; Charles
Rousseau, Droit international public, Tome IV ( 1980), p. 212
("L'institution consulaire remonte à !'Antiquité."); Mohammed Ali Ahmad,
L'institution consulaire et le droit international (1973 ), p. 10; Santiago
Torres Bernardez, "La Conférence des Nations Unies sur les Relations
Consulaires," Annuaire français de droit international (l 963 ), p. 83
("L'institution des consulats, beaucoup plus vielle que celle des missions
diplomatiques permanentes, est née des besoins du commerce international
et des rapports économiques entre les peuples et des nations .... [Elle]
trouve des précurseurs dans l'antiquité ... ").
34
VIENNA CONVENTION ON CONSULAR RELATIONS
community to preside over the adjudication of its disputes, applying
its own laws.
105
4.3 The direct antecedent to modem consular practice
developed in the late Middle Ages, when States began sending
envoys known as "consuls" to other States.
106
These consuls
performed certain diplomatie functions in addition to exercising civil
and criminaljurisdiction over the nationals of the sending State in the
receiving State. 107
4.4 Beginning in the 17th century, consular functions evolved
to the modem model. 108 They remained closely focused, however,
on the protection of the interests, commercial and othemise, of their
nationals. 109
By this century, the consul's right to protect nationals
of the sending State and assist them before the competent authorities
105. Lee, op. cit., p. 5; Ahmad, op. cit., pp. 9-12; Rousseau, op. cit., p.
212.
106. Lee, op. cil., p. 6; Sir Robert Jennings and Sir Arthur Watts, eds.,
Oppenheim's International Law (9th ed. 1991 ), p. 1132; Rousseau, op. cit.,
p. 212; Ahmad, op. cit., p. 13.
107. Lee, op. cil., p. 6; Ahmad, op. cil., pp. 12-13.
108. This evolution resulted from a combination of historical
developments. First, as the newly centralized nation-states in Western
Europe consolidated their powers, the consul's plenary jurisdiction over
foreign nationals ceded to that of the receiving States, with certain
exceptions. Oppenheim, op. cit., pp. 1132-1133; Ahmad, op. cit., p. 13;
Rousseau, op. cit., p. 213. Second, the establishment of permanent
diplomatie missions limited the political duties of consuls. Lee, op. cit., p.
6; Oppenheim, op cit., p. 1133.
109. Rousseau, op. cil., p. 213; Oppenheim, op. cit., p. 1133. Cf United
Nations, Official Records of the Conference on Consular Relations, Vol. I,
Seventh Meeting of the First Committee, para. 43, document
A/CONF.25/16 (statement by Yugoslav delegate) (consular fonctions at the
end of 18th century, in absence of bilateral treaties stating otherwise,
centered on protecting rights and interests of nationals and giving them
assistance).
35
MEMORIAL
of the receiving State was established as a principle of customary
international law.
110
4.5 Given the importance of the subject and centuries of
relatively uniform practice among States, the law of consular
relations was a ready target for the United Nations' mission of
"encouraging the progressive development of international law and
its codification."
111
In 1949, the International Law Commission
provisionally designated consular relations as one of the fourteen
subjects it considered proper for codification.
112
In 1955 the ILC
began work on the subject, and in 1957 the Special Rapporteur
submitted his report.
113
In 1961, the Commission, having obtained
comments from governments, adopted the final text of the draft
Articles.
114
The General Assembly convened the Conference on
11 O. United Nations, Official Records of the Conference on Consular
Relations, Vol. I, Eighth Meeting of the First Committee, paras. 35, 44,
document A/CONF.25/16 (statement of Janoslav Zourek, Special
Rapporteur on Consular Relations); ibid., Eleventh Plenary Meeting,
agenda item 10, para. 14 (statement of Soviet delegate) (noting "very old
rule of international law: the right of every state to protect its nationals. ");
Rousseau, op. cit., p. 234 ("Fonction de protection - C'est elle qui est à la
base de l'institution consulaire .... A ce titre les consuls doivent faire
respecter les droits de leurs ressortissants et les aider dans leurs enterprises
en intervenant éventuellement auprès des autorités compétentes.
Etroitement liée à l'institution, cette fonction n'a pas besoin d'être stipulée
dans une convention et ne peut être contestée par l'Etat territoriale.");
Torres Bernardez, op. cit., p. 85.
111. U.N. Charter, art. 13(1 ); see Ian Brownlie, Princip/es of Public
International Law (1990), p. 362.
112. United Nations, Official Records of the General Assembly, Report of
the International Law Commission, 4th Session, Supp/ement No. JO, paras.
16, 20, document A/925; see also Torres Bernardez, op. cit., pp. 78-79.
113. United Nations, International Law Commission, Draft Provisional
Articles on Consular Intercourse and Immunities: Report of Jaroslav
Zourek, Special Rapporteur, document A/CN.4/108.
114. United Nations, Official Records of the General Assembly, 16th
( continued ... )
36
VIENNA CONVENTION ON CONSULAR RELATIONS
Consular Relations, which was held in Vienna from 4 March to 22
April 1963 with the participation of 92 States. 115
4.6 The Convention as adopted included detailed provisions,
Articles 5 and 36, that codified the sending State's right to provide
consular assistance to its nationals in the receiving State,. both
generally and in the context of criminal proceedings against the
national. As both delegates at the Conference and jurists have noted,
the rights of consular protection and assistance codified in these
articles "could well be regarded as the underlying objective for all
other functions performed by consuls in the interest of the sending
state." 116
114. ( ... continued)
Session, Supplement No. 9, document A/4843.
115. General Assembly Resolution 1685 (XVI), United Nations, Official
Records of the General Assembly, 16th Session, Supplement No. 1 ï, p. 61,
document A/5100.
116. Victor M. Uribe, "Consuls at Work: Universal Instruments of Human
Rights and Consular Protection in the Context ofCriminal Justice," Hous.
J. Int'l L., Vol. 19 (1997), pp. 375,379. The Vienna Conference delegate
from Mali, referring to Article 36 as a whole, stated:
[TJhe protection of nationals of the sending State was the
principal function of consulates .... The natural protector
of a person abroad was undoubtedly his country's consul.
In the case of arrest, for example, the consul should be
notified immediately so that he could take whatever action
was needed under article 5.
United Nations, Official Records of the Coriference on Consular Relations,
Vol. L, Sixteenth Meeting of the Second Committee, para. 12, document
AICONF.25/16; see also ibid., Seventeenth Meeting of the Second
Committee, paras. 17 and 19 (statements of Tunisian and United Kingdom
de!egates); Brief of Amici Curiae Republic of Argentin􀄼 Republic of
Brazil, Republic of Ecuador and Republic of Mexico In Support of Petition
for a Writ ofCertiorari, Paraguizy v. Gilmore, _ U.S. _, 118 S. Ct. 1352,
p. l, Annex 28 ("The protection and support of persons who have been
charged with crimes, convicted, or imprisoned by a foreign national has
(continued ... )
37
MEMORIAL
4.7 It is those rights which the United States violated in the
case of Angel Breard and for which Paraguay seeks reparation here.
1.
The United States Deprived Paraguay oflts Right
to Provide Consular Assistance by Failing to Provide
the Required Notification to Mr. Breard
A. ARTICLE 36(1)(b) REQUIRED NOTIFICATION TO MR. BREARD
IN ÜRDER TO PER.\1IT PARA GUA Y TO EXERCISE
lTS RIGHT OF CONSULAR ASSISTANCE
4.8 It is uncontested in this proceeding that Article 36(1)(b)
required responsible officiais of the United States to provide Mr.
Brearci with notice ofhis right to contact the Paraguayan consul. The
ordinary meaning of that provision, taken in its context and in the
light of its object and purpose, confirms that obligation. 117
4.9 The principal purpose of the Vienna Convention is to
guarantee a State Party the right to perform consular functions within
the territory of those States Parties vvith which it has established
I 16. ( ... continued)
always been a critical function of consular officiais."); Marie! Revillard,
"Consul (Attributions)," Encyclopédie juridique (Dalloz), Répertoire de
droit international, para. 28 (forthcoming, 1998) ("La protection des
nationaux qui se trouvent dans l'Etat de résidence répond au but même de
l'institution consulaire."); J. Irizarry y Puenta, Traité sur les fonctions
internationales des consuls (traduit par C. Schlegel) (l 937), p. 274 ("Le
droit de protection est, sans aucun doute, le premier, le plus important et le
plus actif devoir dans le domaine toujours plus vaste de l'action
consulaire."); Ellery C. Stowell, Le consul: jonctions, immunités,
organisation ( 1909), p. 62 ("On peut dire que cette fonction du consul est
la plus important de toutes."); Pradier-Fodéré, Droit international public
(1885), p. 555 ("C'est par les consuls ... que l'Etat étend ses bras
protecteurs sur toute la surface du globe.").
117. See Vienna Convention on the Law ofTreaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 31.
38
VIENNA CONVENTION ON CONSULAR RELATIONS
consular relations. 118 Article 5 of the Convention defines consular
functions to include
(a) protecting in the rece1vmg state the
interests of the sending state and of its nationals, bath
individuals and bodies corporate, within the limits
permitted by international law; [ and]
( e) helping and assisting nationals, both
individuals and bodies corporate, of the sending state;
4.10 Article 36 of the Convention sets forth a mechanism to
ensure that consular officiais may perform those functions in a
specific setting: that of a national who has been detained by
authorities of the receiving State. "With a view to facilitating the
exercise of consular functions relating to nationals of the sending
state," Article 36(1)(a) guarantees the right of consular officers "to
cornmunicate with nationals of the sending state and to have access
to them ... ," as well as the corollary right of nationals to
comrnunicate vVith and have access to their consular officers. Article
36( 1 )(b) also requires the competent authorities of a State Party to
ad.vise, "without delay," any detained national of another State Party
that he has the right to contact bis consulate. Th.en, "ifhe so requests,
the competent authorities of the receiving state shall, without delay,
inforrn 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." 119
118. See Vienna Convention on Consular Relations, 24 April 1963, 596
U.N.T.S. 261, 21 U.S.T. 77, preamble (purpose of privileges and
immunities granted by Convention is "to ensure the efficient performance
offunctions by consular posts on behalf oftheir respective States"); ibid.,
art. 3 ("Consular functions are exercised by consular posts. They are also
exercised by diplomatie missions in accordance with the provisions of the
present Convention.").
119. The terrns ofthis provision make clear that it creates rights not only
in the State Party but also for the detained national. Ibid., art. 36(l)(b)
("The said authorities shall inform the person concerned without delay of
(continued ... )
39
MEMORIAL
4.11 Obviously, a sending State cannot "exercise ... consular
functions" with respect to a detained national if the receiving State
does not advise it of the detention. As Argentina, Brazil, Ecuador,
and Mexico said in their brief am ici curiae to the United States
Supreme Court:
[c]onsuls can discharge [their] responsibility only if
they know of the detention of their nationals by law
enforcement authorities. Article 36 of the Convention
is designed specifically to ensure that consuls do
know of the detention of their nationals, and
compliance with it is therefore indispensable to the
effective performance of consular functions. 120
Failing to provide the requisite notice to a detained foreigner of his
rights under Article 36 necessarily entails a violation of the sending
State's rights to render consular protection and assistance to its
national, as guaranteed by Articles 5 and 36.
4.12 The travaux préparatoires of the Vienna Convention
confirm the integral relationship between the sending State's right of
consular assistance and the receiving State's obligation to provide
prompt notification to the detained national. The United Kingdom
delegate urged that "it was essential to introduce a provision to the
effect that the authorities of the receiving State should inform the
person concemed without delay ofhis rights," if the Conference were
to forgo the automatic notification of the consulate provided in the
International Law Commission draft in favor of a proposa! to notify
119. ( ... continued)
his rights under this sub-paragraph.") (emphasis supplied); see Memorial
of the United States, United States Diplomatie and Consular Staff in
Tehran, I.C.J. Pleadings 1980, p. 174 ("Article 36 establishes rights not
only for the consular officer but, perhaps even more importantly, for the
nationals of the sending State who are assured access to consular officers
and through them to others. ").
120, 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, _ U.S. _, 118 S. Ct. 1352, p. 1
(No. 97-1390) (emphasis in original), Annex 28.
40
VIENNA CONVENTION ON CONSULAR RELATIONS
the consul only "if [the national] so requests." 121 A provision for
notice upon the national's request, without more, would be
unworkable, the delegate asserted, "because it could give rise to
abuses and misunderstandings. Jt could well make the provisions of
article 36 ineffective because the persan arrested might not be aware
of his rights. " 122
B. THE UNITED STATES DID NOT PROVIDE
THE REQUISITE NOTICE
4.13 As the United States has acknowledged, its competent
officiais did not notify Mr. Breard at any time after his arrest, and a
fortiori not "without delay," of his right to contact the Paraguayan
consulate. "There is an admitted failure by the Commonwealth of
Virginia to have afforded Paraguay timely consular access, that is to
say, there is an admitted breach of treaty." 123
121. United Nations, Official Records of the Coriference on Consular
Relations, Vol. I, Twentieth Plenary Meeting, agenda item 10, para. 73,
document NCONF.25/16.
122. Ibid. (emphasis supplied). See also ibid., Eleventh Plenary Meeting,
agenda item 10, paras. 13-14 (before the amendment offered by the United
Kingdom was added to Article 36( l Xb ), the Soviet de le gate also expressed
concern that "[t]he proposa] that the consul should be informed of the arrest
of a national of the sending State only at the request of the person
concerned could not withstand criticism. What guarantee was there that the
person concemed had been informed ofhis right ...? " For this reason, the
Soviet delegate considered that anything short of automatic notification
"conflicted with a very old rule of international law: the right of every
State to protect its nationals. "); see a!so ibid., para. 8 (statement of delegate
from Ghana).
123. Vienna Convention on Consular Relations (Paraguay v. United
States), Provisional A1easures, Order of 9 Apr. 1998, Declaration of
President Schwebel. See also ibid.. Oral Argument, para. 1.4 (statement of
David R. Andrews); Brief for United States as Amicus Curiae, p. 12,
Breard v. Greene,_ U.S. _, 118 S. Ct. 1352 (1998) ("the Executive
Branch has conceded that the Vienna Convention was violated"), Annex
21.
41
MEMORIAL
4.14 Because the United States breached its obligation to
provide the requisite notice, Paraguay was unaware that Mr. Breard
was detained by the United States until April 1996. 124 Mr. Breard
also was unaware of his right to consular assistance until consular
officers met with him in late April 1996 - about three years after he
had been arrested, tried, convicted, and sentenced to death.125
Paraguay had no opportunity to provide consular assistance to its
national between his arrest in September 1992 and April 1996, when
it learned of Mr. Breard's detention without any assistance from the
United States.
4.15 Thus, by its admitted failure to provide the notification
mandated by Article 36, the United States deprived Paraguay of its
right to render consular assistance to its national at the time when
such assistance was most urgently needed: between Mr. Breard's
arrest and the conclusion of the trial of the charges against him.
C. THE UNITED STATES' VIOLATION R.ENDERS lT
INTER.NA TIONALL Y R.ESPONSIBLE FOR lTS WRONGFUL ACTS
4.16 The conceded violation of the United States' obligations
under Article 36 of the Vienna Convention constitutes a clear breach
of international law. Under the principle of pacta sunt servanda, the
United States was required to abide by its obligations under the
Vienna Convention. lnstead, the United States committed an
internationally \\;Tongful act for which it is responsible under
international law. 126 "It is of obvious importance to the maintenance
124. Valdez Stmt., para. 4, Annex 7; Caballero Stmt., para. 3, Annex 16;
Sra. Breard Aff., para. 7, Annex l.
125. Sra. Breard Aff., para. 8, Annex l.
126. Draft Articles on State Responsibility, Report of the International
Law Commission, United Nations, Official Records of the General
Assembly, 51 st Session, Supplement No. 10, arts. 1, 3, document AJS 1/10
("Every internationally wrongful act of a State entails the international
responsibility of that State."); Corju Channel, Merits, Judgment, I.C.J
Reports 1949, p. 23; Peter Malanczuk, Akehurst's Modern Introduction to
( continued ... )
42
VIENNA CONVENTION ON CONSULAR RELATIONS
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." 127
1. No Prejudice Need Be Shownfor
State Responsibility to Attach
4.17 Contrary to the United States' contention during the
hearing on provisional measures, international law does not require
a showing of prejudice before the offending State's international
responsibility is engaged. Rather,
[l]a responsabilité est le corollaire nécessaire du droit.
Touts 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. 128
126. ( ... continued)
International Law (7th ed. 1997), p. 254 ("If a state violates a rule of
customary international law or ignores an obligation of a treaty it has
concluded, it commits a breach of international law and thereby a so-called
'internationally wrongful act."').
127. Vienna Convention on Consular Relations (Paraguay v. United
States), Provisional Measures, Order of 9 Apr. 1998, Declaration of
President Schwebel.
128. Affaires des biens britanniques au Maroc espagnol (Sp. - Gr. Brit.},
1 May 1925, 2 R.I.A.A. 641; Factory at Chorz6w, Jurisdiction, Judgment
No. 8, 1927, P.C.IJ., Series A, No. 9, p. 21 ("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."); Factory at
Chorzow, Jndemnity. Judgment No. 13, 1928, P.C.JJ., Series A, No. 17,
p. 29 (same); Corfu Channel, Merirs, Judgment, lC.J Reports 1949, p. 23;
Restatement (Third) of the Foreign Relations Law of the United States§
( continued ... )
43
MEMORIAL
4.18 Thus, under established principles of international law,
the Ynited States' admitted violation of the Vienna Convention
should begin and end the inquiry of whether its international
responsibility has been engaged. The only question outstanding is
that of the reparation owed, which is addressed in Chapter 6.
2. Prejudice 1s Amply Established
on this Record in Any Event
4.19 Although prejudice is not required to establish the
United States' responsibility for its violations of the Vienna
Convention, the record in this case is replete with evidence of
prejudice both to Paraguay and to its national.
a. Injury to Paraguay
4.20 The United States' violation of the Vienna Convention
deprived Paraguay of its right to protect and assist its national in the
gravest of circumstances: where the receiving State, in its municipal
proceedings, threatens not only the liberty, but the very life of the
national. The breach at issue here was of rights directly and
specifically granted to Paraguay under Article 36(1) as the sending
State of which Mr. Breard was the national. As a direct result of the
violation, Paraguay was unable to render any consular assistance
during a three-year period that included the most crucial moments of
the proceedings against its national. In short, the United States
deprived Paraguay of the right to exercise an important govemrnental
function at the only time when that function could have fulfilled its
purpose: providing meaningful protection and assistance to a
Paraguayan national on trial for his life.
128. ( ... continued)
901 ( 1987) ("Under international law, every state that has violated a le gal
obligation to another state is required to terminate the violation and,
ordinarily, to make reparation .... "); Rousseau, op. cit., p. 210 ("La
réparation est une conséquence nécessaire de l'acte illicite.").
44
VlENNA CONVENTION ON CONSULAR RELATIONS
4.21 There can be no doubt that the rights at issue are
substantial rights in international law. The United States itself has
acknowledged that "Article 36 of the Vienna Convention contains
obligations of the highest order and should not be dealt with
lightly." 129 Indeed, the United States advised this Court in the Case
Concerning United States Diplomatie and Consular Staff in Tehran
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." 130
4.22 The three-year delay between Mr. Breard's arrest and
Paraguay's first opportunity to provide him consular assistance
exacerbated both the violation and the injury. Indeed, the timing of
the consular notification and assistance is an express and integral
aspect of the rights granted by Article 36(1).
4.23 The words "without delay" appear in each of the three
sentences that constitute Article 36(1 )(b ). The focus on rapid
notification and communication reflects a recognition that, in many
cases, unless consular assistance can be provided at the outset of the
proceedings, no effective assistance will be provided at all. For
example, the United States' manual on consular affairs provides:
§411 : 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 oflawyers
and a legal system fact sheet to prisoners.
129. Arthur W. Rovine, U.S. Dep't of State, Digest of United States
Practice in International Law (1973 ), p. 161. See also authorities cited
supra note 1 l 6.
130. Memorial of the United States, United States Diplomatie and
Consular Staff in Tehran, I C.J Pleadings 1980, p. 17 4 ( citations omitted).
45
MEMORIAL
§411.3: ... Without such prompt notifie arion
of arrest, it is impossible to achieve the essential
timely access to a detained U.S. citizen.
§412: [P]rompt persona! 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 govemment at a
lime when such information is most useful. 131
4.24 By breaching its obligations to Paraguay under the
Vienna Convention over an extended period of time, the United
States caused specific and substantial prejudice to the rights and
interests of Paraguay as a sovereign State.
b. lnjury to Paraguay's National
4.25 The record also contains ample evidence of prejudice to
Paraguay's national, which is an injury to Paraguay under established
principles of international law.132 From the moment ofhis arrest for
a capital crime, Angel Breard was in great need of the assistance of
a consular officer who could explain the United States crirninal
justice system to him in terms that he could understand. Instead, Mr.
Breard had only the assistance of court-appointed counsel unfamiliar
with his cultural background and unable to explain why his
assumptions concerning the defense of a criminal case were
unreasonable in the context of criminal justice in Virginia.
131. U.S. Dep't of State, Foreign A.flairs Manual (1984), Annex 4
( emphasis added).
132. See Mavrommatis Palestine Concessions,Jurisdiction, 1924, P.C.IJ.,
Ser. A., No. 2, p. 12 ("whether the present dispute originates in an inj ury to
a private interest ... 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. ").
46
VIENNA CONVENTION ON CONSULAR RELATIONS
4.26 As the United States instructs its own consular officers:
[t]raditionally one of the basic functions of a consular
officer has been to provide a "cultural bridge"
between the host cornmunity and the officer's own
compatriots traveling or residing abroad. No one
needs that cultural bridge more than the individual
U.S. citizen who has been arrested in a foreign
country or imprisoned in a foreign jail. 133
4.27 During the course of the proceedings against him, Mr.
Breard made a number of objectively unreasonable decisions. Most
important, Mr. Breard. despite the advice of his attorneys, rejected a
plea offer by the Virginia prosecutor that would have guaranteed him
a sentence of imprisonment for life rather than a death sentence. He
rejected the plea offer not in the hope ofbeing acquitted, but rather in
order to testify as a witness, again contrary to the advice of his
lawyers, and confess the crime to the jury. In rejecting the plea offer,
Mr. Breard discarded a guaranteed sentence of life imprisonment in
favor of a trial where, given his determination to confess his guilt, the
only possible outcomes were a sentence of death or a sentence of life
imprisonment. This decision was plainly irrational, as it put his life
at risk without any prospect of a better result than that offered by the
prosecution.
4.28 Unquestionably, the best evidence of why Mr. Breard
decided to reject the plea offer would be Mr. Breard's own testimony
on the subject. Mr. Breard, however, is no longer available to testify
in these proceedings. By executing Mr. Breard in the face of this
Court's Order to the contrary, the United States has deprived
Paraguay, and the Court, of the ability to obtain that best evidence.
4.29 Thus, in the Request accompanying this Memorial,
Paraguay requests that, if and to the extent that there are any disputed
issues of fact that are material to Paraguay's claims as to which Mr.
Breard's testimony would have been relevant, the Court, in the
exercise of its authority pursuant to Articles 48 and 49 of the Statu.te,
133. U.S. Dep'tofState,ForeignA.ffairsManual, 7 FAM § 401 (1984),
Annex 4.
47
MEMORIAL
deem those facts established in Paraguay's favor in order to remedy
the evidentiary prejudice suffered by Paraguay by virtue of the United
States' execution of Mr. Breard.
4.30 Even without evidence frorn Mr. Breard, however, the
record contains compelling evidence that his decision to reject the
plea offer resulted from a misunderstanding of the United States
criminal justice system - a misunderstanding that could have, and
would have, been rectified through the assistance of Paraguayan
consular officers. Whereas plea bargaining is cornmonplace in
United States criminal proceedings, it is unknown in Paraguay, where
any such arrangement between prosecutor and defendant would be
void. 134 On the other hand, the Paraguayan penal code expressly
provides for a reduction in sentence where the defendant's confession
is, as was the case in the proceedings against Mr. Breard, the only
direct evidence of the crime. 135
Certain other aspects of Paraguayan
crirninal procedure also favor the confession as a strategic choice for
defendants seeking leniency. 136
4.31 Thus, the notion of making a deal with the prosecution
would not make sense to a Paraguayan unfamiliar with the United
States legal system, such as Mr. Breard. Mr. Breard's decision to
reject the plea offer and confess his crime in open court would have
been a rational one in the Paraguayan crim.inal justice system. In the
United States, however, it was deadly folly.
4.32 The record before the Court establishes that, had the
United States fulfilled its obligation to notify him of his right to
consular assistance, Mr. Breard would have contacted his
consulate. 137
Had Mr. Breard requested consular assistance,
Paraguayan officiais would have intervened at the beginning of Mr.
134. Macchi Aff., para. 3, Annex 13.
135. Ibid., para. 4.
136. See ibid
137. Sra. Breard Aff., para. 9, Annex 1; Caballero Stmt., para. 10, Annex
16.
48
VIENNA CONVENTION ON CONSULAR RELATIONS
Breard's legal proceedings with the same energy and expertise that
they brought to their later efforts to obtain a new trial for him in the
municipal courts of the United States. Paraguayan consular officers
would have explained to Mr. Breard the fundamental differences
between United States and Paraguayan criminal justice in terms that
Mr. Breard could understand, just as they ultimately did. 138
Specifically, Paraguayan consular officers would have reviewed with
Mr. Breard why rejecting the plea offer in favor of confessing at trial
would be unreasonable, and they would have recommended that Mr.
Breard accept the plea offer. 139 If Mr. Breard had had the benefit of
this assistance from the beginning ofhis legal proceedings, he would
have accepted the plea, and would not have been sentenced to death
and executed. 140
4.33 Simply put, in the circumstances of Mr. Breard's case,
consular assistance was a matter of life and death. The United States'
violation of its international obligations prevented Paraguay from
acting in a manner that would have saved its national's life.
Il.
The United States Violated the Vienna Convention
by Its Application of the
Municipal-Law Doctrine of Procedural Default
4.34 The United States also violated Paraguay's rights by
applying its municipal law so as to thwart Mr. Breard's efforts to
receive consular assistance from Paraguay before and during a trial
of the charges against him. Specifically, when Mr. Breard sought
post-conviction relief on the ground that he had been tried, convicted,
and sentenced to death without the assistance of Paraguay's consul,
the United States applied the doctrine of procedural default to defeat
138. Valdez Stmt., paras. 5-6, Annex 7; Prieto Aff., para. 10, Annex 6.
139. Valdez Stmt., para. 8, Annex 7.
140. Caballero Stmt., para. l 0, Annex 16; Sra. Breard Aff., para. 7,
Annex 1.
49
MEMORIAL
his efforts to receive Paraguay's consular assistance at a new trial.
The United States' application of this doctrine in Mr. Breard's case
cannot be reconciled with its obligations under Article 36(2) of the
Vienna Convention.
A. THE UNITED ST A TES W AS ÜBLIGA TED TO APPL Y MUNICIPAL
LAW S0 AS TO ÜUARANTEE THE EXERCISE OF THE RIGHTS
ACCORDED BY ARTICLE 36 OF THE VIENNA CONVENTION
4.35 Under Article 36(2) of the Vienna Convention, the
United States was required to ensure that its municipal law and
regulations "enable[d] full effect to be given to the purposes for
which the rights accorded under this Article are intended."
4.36 As discussed above, a principal purpose of Article 36 is
to ensure that States Parties are able to render consular assistance to
nationals detained and charged with crimes by other States Parties.
As the terms of Article 36(l)(b) make clear, the rights accorded under
that Article were intended to be made known, and exercised, "without
delay" after the initial detention of the national. Thus, under Article
36(2), the United States was obligated to ensure that its municipal law
"enable[ d] full effect to be given" to Paraguay's right to provide, and
Mr. Breard's right to receive, consular assistance in a timely fashion
relative to the arrest and trial of the charges against him.
4.37 A review of the drafting history of Article 36(2)
confirms the breadth of the obligation it imposes. 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 laws and regulations
must not nullifj; these rights.141
141. United Nations, Official Records of the Conference on Consular
Relations, Vol. Il, Annexes - Draft articles on consular relations, p. 24,
( continued ... )
50
VIENNA CONVENTION ON CONSULAR RELATIONS
The Second Committee expanded the International Law
Commission's proviso to the form that the States Parties ultimately
adopted: "the said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded under this Article
are intended." 142
This formulation is substantially broader than the
International Law Commission proposai in two respects. First, it
requires the municipal law of States Parties to give "full effect" to the
Convention, rather than merely refraining from nullifying the rights
accorded by the Convention. Second, the obligation to give full effect
extends not to the rights accorded by Article 36, but instead to "the
purposes for which the rights ... are intended." As Luke Lee
observes:
[The] reference to the purposes underlying the rights
instead of merely the rights themselves must be
understood as an expansion of the operation of the
proviso in paragraph 2 intended to discourage any
technical argument as to whether a particular
provision of municipal law was consistent with the
Convention, where the overall effect of such a
provision was to diminish the full exercise of the
rights accorded by the Convention. 143
4.38 At a plenary meeting of the Conference, the delegate
from the Soviet Union proposed restoring the International Law
Commission's weaker version. 144 The delegate :from the United
Kingdom disagreed with the proposed Soviet amendment, stating that
141. ( ... continued)
document NCONF.25/16 (emphasis supplied).
142. United Nations, Official Records of the Conference on Consular
Relations, Vol. 1, Eighteenth Meeting of the Second Committee, para. 4 7,
document NCONF.25/16; ibid., Nineteenth Meeting of the Second
Committee, para. l O ( emphasis supplied).
I 43. Affidavit of Luke T. Lee (1 Oct. 1998), para. 5, Annex 29.
144. United Nations, Official Records of the Conference on Consular
Relations, Vol. 1, Twelfth Plenary Meeting, paras. 3-4, document
NCONF.25/16.
51
MEMORIAL
"it was most important that the substance of the rights and obligations
specified in paragraph 1 be preserved, which they would not be if the
Soviet Union amendment were adopted." 145 The Conference rejected
the Soviet amendment.
B. THE UNITED STATES BREACHED !TS INTERNATIONAL
ÜBLIGA TI ONS BY APPL YING THE DOCTRINE OF PROCEDURAL
DEFAUL TIN MR. BREARD'S CASE
4.39 Having committed an intemationally wrongful act by
violating Article 36(1) of the Vienna Convention, the United States
was required under established principles of State responsibility to
eliminate the effects of its illegal acts 146 and abide by its "continued
duty ... to perform the obligation it ha(d] breached" 147 by respecting
Paraguay's right to render consular protection and assistance before
and during the trial of the charges against Mr. Breard. Like that of
many States, the United States' municipal law included procedures by
which Mr. Breard could have sought a new trial - at which he could
have received the consular assistance guaranteed by the Vienna
Convention - on the ground that the competent authorities failed to
comply with the requirements of international law in his initial trial.
145. Ibid., para. 7 (emphasis supplied).
146. Oscar Schachter, International Law in Theory and Practice: General
Course in Public International Law (1985), p. 190 ("When a State is
intemationally responsible for a wrongful act, it is under an obligation to
discontinue the act and to prevent the continuing consequences of the
effects of the act. "). Cf Draft Articles on State Responsibility, op. cit., art.
41 ("A State whose conduct constitutes an intemationally wrongful act
having a continuing character is under the obligation to cease that conduct,
without prejudice to the responsibility it has already incurred."); Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), Advisory Opinion, IC.J. Reports 1971, p. 54; Haya de la
Torre, J.C.J Reports 1951, p. 82.
147. Draft Articles on State Responsibility, op. cit., art. 36(2).
52
VIENNA CONVENTION ON CONSULAR RELATIONS
4.40 The courts of the United States, however, held that those
procedures were not available to Mr. Breard. They did so on the
basis of a municipal-law doctrine known as "procedural default,"
which was codified in 1996 in a statute called the Anti-T errorism and
Effective Death Penalty Act. 148 Under the doctrine, a criminal
defendant may not obtain post-conviction relief in federal court upon
a ground that was not first raised in post-conviction relief proceedings
in state court. 149
4.41 Applying the doctrine, the courts of the United States
barred Mr. Breard from raising a Vienna Convention claim in his
federal habeas proceeding even though (a) he had not known during
the prior proceedings ofhis right under the Convention to contact the
Paraguayan consulate, and (b) the very purpose of the notification
requirement that the United States breached is to ensure that a
detained national in Mr.B reard's position is apprised of that right. 150
4.42 The Supreme Court recognized that application of the
procedural-default doctrine to bar Mr. Breard's attempt to obtain a
new trial at which he would exercise his Vienna Convention rights
was, on its face, inconsistent with the "Vienna Convention - which
arguably confers on an individual the right to consular assistance
following arrest ...." 151 The Court reasoned, however, that the
United States' enactment of the Anti-Terrorism and Effective Death
Penalty Act in 1996 limited the application of the Vienna
Convention: "Breard's ability to obtain relief based on violations of
the Vienna Convention is subject to this subsequently-enacted rule
11152
148. Breardv. Greene,_ U.S _, 118 S. Ct. 1352, 1355 (1998).
149. Breard v. Netherland, 949 F. Supp. 1255 (E.D. Va. 1996).
150. Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998); Breard v. Greene,_
U.S. _, 118 S. Ct. 1352 (l 998).
151. Breard v. Greene, 118 S. Ct. at 1355.
152. Ibid.
53
MEMORIAL
4.43 The United States' application of its municipal laws and
regulations in Mr. Breard's case plainly did not "enable full effect to
be given to the purposes for which the rights accorded under ...
Article [36] are intended." 153 Although the United States was
internationally obligated to remedy its admitted violation of the
Vienna Convention in Mr. Breard's case, it applied its municipal law
in such a manner as to render meaningless the right to consular
assistance provided by the Convention- a right of which Mr. Breard
was unaware precisely because of the United States' breach of its
international obligation. 154
4.44 Thus, although the United States is internationally
obligated to abide by the obligations it assurned in becoming a State
Party to the Vienna Convention, 155 its courts, including its Supreme
Court, interpreted municipal law to limit the application of the
Vienna Convention in Mr. Breard's case. 156 The United States'
153. Vienna Convention, art. 36(2). See Lee Aff., paras. 4-9, Annex 29.
154. The Govemment of Mexico has requested an advisory opinion from
the Inter-American Court of Human Rights on the question of, inter alia,
the juridical consequences for foreign nationals who were not informed of
their right to consular assistance in proceedings against them in the United
States. Request for an Advisory Opinion Submitted by the Government of
the United Mexîcan States, lnter-American Court of Human Rights, 17
November 1997. An advisory opinion is anticipated in late 1998 or in
1999.
155. Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 27; Draft Articles on State Responsibility,
op. cit .. arts. 4-6; Ian Brownlie, State Responsibility {Part 1) (1983),
pp. 141-43; Ian Brownlie, Princip/es of International Law (1990), p. 35.
156. "lt is a well-settled principle of international law that every
intemationally wrongful act of the judiciaiy of a state is attributable to that
state." lslamic Republic of Iran v. United States of America, Award No.
586-A27-FT, Iran-US. Claims Tribunal, 5 June 1998, para. 71. See Draft
Articles on State Responsibility, op. cit., art. 6; Ian Brownlie, Princip/es of
Public International Law (1990), pp. 449-50; Ian Brownlie, State
Responsibility (Part f) (1983), p. 144; Eduardo Jiménez de Aréchaga,
"International Responsibility," in Manual of Public International Law
( continued ... )
54
VIENNA CONVENTION ON CONSULAR RELATIONS
application of municipal law thereby violated not only Article 36(2),
but also the rule of customary law that a State may not plead the
requirements of its domestic legal system to excuse its failure to abide
by or implement international law. 157
4.45 In rejecting the weaker language proposed by the ILC in
favor of the broad, current formulation of the proviso to Article 36(2),
the States Parties stated their intent that "the substance of the rights
and obligations specified in paragraph 1 [ of the Article] be preserved
• . . • "158 Paraguay respectfully submits that the United States'
application of municipal law in Mr. Breard's case did nothing to
preserve t.he substance of the rights accorded 1u1der Articles 5 and 36
of the Convention. The United States' actions breached its obligation
wider Article 36(2) to accord "full effect" to the rights accorded.
156. ( ... continued)
(Max S0rensen ed., 1968), pp. 550-557.
157. Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 27; Ian Brownlie, Princip/es of
International Law (1990), p. 35; Draft Articles on State Responsibility, op.
cit., arts. 4-6. See also Jiménez de Aréchaga, op. cit., p. 557 ("It is a
generally accepted principle of international law that a ferlerai state is
responsible for the conduct of its political subdivisions and cannot evade
that responsibility by alleging that its constitutional powers of control over
them are insufficient for it to enforce compliance with international
obligations."); Free Zone of Upper Savoy and the District of Gex,
Judgment, 1932, P.C.l.J., Series AIB, No. 46, p. 167 (France not permitted
to rely on own legislation to limit scope of international duty); GrecoBulgarian
"Communities," Advisory Opinion, 1930, P.C.LJ, Series B,
No. 17, p. 32 (between treaty parties provisions of municipal law cannot
prevail over treaty obligations); Treatment of Polish Nationals in Danzig,
1931, P.C.l.J., Series AIB, llfo. 44, p. 24 (State cannot use own constitution
to excuse international law violations).
158. United Nations, Official Records of the Conference on Consular
Relations, Vol. 1, Twelfth Plenary Meeting, agenda item 10, para. 7,
document A/CONF.25/16 (statement of U.K. delegate) (emphasis
supplied).
55
CHAPTERS
BY EXECUTING MR. BREARD,
THE UNITED STATES VIOLATED
A BINDING OROER OF THIS COURT
5.1 By its Order of Provisional Measures of 9 April 1998, this
Court indicated that "[t]he United States should take all measures at
its disposai to ensure that Angel Francisco Breard is not executed
pending the final decision in these proceedings." With full
knowledge of that Order, the Govemor of Virginia directed that the
execution proceed, and the United States Government took no legally
effective steps to stop it.
5 .2 There can be no question that the United States thereby
breached the Order of this Court. Equally, there can be no question
that the Ortler was binding.
5.3 The United States does not dispute that, pursuant to
Article 94(1) of the United Nations Charter, it has "undertake[n] to
comply with the decision" in this proceeding. As Article 41 expressly
states, the Court's authority to indicate provisional measures is
intended to preserve the rights of the parties pending a decision on the
merits, so that one party's unilateral conduct does not deprive the
Court of the capacity to render a meaningful judgment after both
parties have been full y heard. The authority of the Court to indicate
provisional measures is thus fundamental to the Court's role as a
''judicial organ" - an organ that resolves disputes by the considered
application of law, not the unfettered exercise of power. Simply put,
it is impossible to reconcile, on the one hand, a party's obligation to
comply with a decision of the Court with, on the other, the liberty to
deprive the Court of the capacity to render an effective decision in
favor of the adverse party.
5.4 This case illustrates perfectly - indeed, graphically -
why an indication of provisional measures must be binding.
Paraguay's national is now dead at the hands of the Commonwealth
of Virginia. Because of the deliberate conduct of competent officiais
of the United States. this Court is no longer in a position to issue a
judgment granting Paraguay restitutio in integrum in the form of a
56
VIENNA CONVENTION ON CONSULAR RELATIONS
new trial for its national or the reconveyance of the plea offer.
Equally, the United States is no longer in a position to comply with
any suchjudgment. By going forward with the execution in disregard
of the Court's Order, the United States \VTested from this Court, and
arrogated to itself, the authority to determine whether Paraguay
would be granted the relief it sought.
5 .5 Indeed, in announcing that the execution would proceed,
the Govemor of Virginia candidly acknowledged the incentive to
lawlessness created by the United States' position that he was not
bound to cornply with the Ortler. By his own account, the Govemor
refused to grant a temporary reprieve from the execution because he
was
concemed that to delay Mr. Breard's execution so that
the International Court of Justice rnay review this
matter would have the practical effect oftransferring
responsibility from the courts of the Commonwealth
and the United States to the International Court.
Should the International Court resolve this matter in
Paraguay'sfavor, 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. 159
In other words, far from "tak[ing] all measures ... to ensure that ...
Breard [ was] not executed," 160 the Govemor acted to ensure that this
Court's eventual decision on the merits could not prevent the
execution.
5.6 Because this Court is a court, and because its job is to
apply law, the United States cannot have had the right to act as it did.
Paraguay's daim for relief for the United States' violation of the
159. Statement ofGovernor Jim Gilmore (14 Apr. 1998), p. 2 (emphasis
added), Annex 24.
160. Case Concerning the Vienna Convention on Consular Relations
(Paraguay v. United States of America), Provisional Measures, Order of
9 April 1998, para. 41.
57
MEMORIAL
Order of Provisional Measures requires the Court to consider the very
nature of the authority it exercises.
I.
The United States Violated
the Order of Provisional Measures
5.7 At the time of the Order, Mr. Breard was in a correctional
facility of the Commonwealth of Virginia. From that time until his
execution, Virginia officiais had full control over his person.
Virginia officials executed Mr. Breard by lethal injection on 14 April
1998, as scheduled.
5.8 The Governor of Virginia is the chief executive official
of the Commonwealth. Under Virginia law, the Govemor has
plenary power to grant reprieves of capital sentences. 161 Relying on
the advice of the United States that the Order was not binding, he
permitted the execution to go forward. 162 The Governor explained
that he did not grant tv1r. Breard a reprieve because he did not want
to risk the possibility that this Court might render the judgment that
Paraguay had requested. 163
5.9 Plainly, the occurrence or nonoccurrence of the execution
was within the control of the Governor of Virginia. Plainly, he did
not "take all measures at [his] disposai" to halt the execution. The
161. See Va. Stat. Ann. § 53.1-229 ("[T]he power to commute capital
punishrnent and to grant pardons or reprieves is vested in the Governor. "),
Annex 1 O; ibid. § 53. l-232(D) ("Should the condemned prisoner be granted
a reprieve by the Governor ... the Director [of Corrections] shall yield
obedience to [such reprieve]"). At the end of the term ofreprieve by the
Governor, an execution may proceed without resentencing. See ibid.
§ 53. l-232(C).
162. Statement of Governor Jim Gilmore ( 14 Apr. 1998), p. 2, Annex 24.
163. Ibid.
58
VIENNA CONVENTION ON CONSULAR RELATIONS
Govemor is an official for whose acts the United States 1s
responsible. 164 The United States therefore violated the Order.
5 .10 In its letter to this Court dated 15 April 1998, the United
States advised that (a) Virginia had gone forward \-vith the execution;
(b) executive officials had done nothing to stop it except write a letter
to the Governor "requesting" that he issue a stay; and ( c) the United
States Supreme Court, after having been advised by the executive that
"it would be inconsistent" with United States domestic law to grant
a stay pending this Court's judgment, had declined to give effect to
the Order. Nevertheless, the United States advised the Court in the
15 April letter that " [ t ]hrough its actions, culminating in the Secretary
of State's 13 April request to the Governor of Virginia to stay Mr.
Breard's execution ... , the United States took all measures lawfully
at its disposai to do what the Court requested." 165
5.11 The United States is wrong as a matter of both
international law, which matters here, and United States domestic
law, which does not.
5 .12 Whether the federal government of the United States
was constitutionally or otherwise legally restrained from ensuring
164. See, e.g., Eduardo Jiménez de Aréchaga, "International
Responsibility," in Manual of Public International Law (Max S0rensen ed.,
1968), pp. 531, 557; Draft Articles on State Responsibility, Report of the
International Law Commission, United Nations, Official Records of the
General Assembly, 51st Sess., Supp. No. 10, art. 7(1), document A/51/10
( 1996); Case C-58/89, Commission des Communautés Européenes v.
République Fédérale d'Allemagne, 1991 E.C.R. 1-5019, I-5026-27
(imputing acts ofUinder to Germany); Francisco Quintanilla, U.S.-Mex.
General Claims Comm'n (16 Nov. 1926), 4 R.LA.A. l O l, 103 (imputing
actions of federated state of United States to United States of America);
Francisco Mallén, U.S.-Mex. General Claims Comm'n (27 Apr. 1927), 4
R.I.A.A. 173, 177 (sarne).
165. Letter frorn David R. Andrews, Agent of the United States of
America, to His Excellency Eduardo Valencia-Ospina, Registrar,
International Court of Justice (] S Apr. 1998) (citation and internai
quotation marks omitted), Annex 26.
59
MEMORIAL
compliance with the Order by Virginia officiais is irrelevant to the
question of the United States' compliance with that Order.
It is a generally accepted principle of international law
that a federal state is responsible for the conduct of its
political sub-divisions and cannot evade that
responsibility by alleging that its constitutional
powers of control over them are insufficient for it to
enforce compliance with international obligations. 166
This principle reflects the broader but equally fundamental rule that
a State may not plead strictures arising from its municipal law as an
excuse for its failure to comply with an international obligation. 167
From the standpoint of international law, it matters only that officiais
whose acts are attributable to the United States had custody of Mr.
Breard and could have stopped the execution, but did not.
5.13 In any event, as a matter of United States law, federal
officiais could easily have stopped Virginia from carrying out the
execution had they determined to do so. In the United States, the law
of foreign relations is quintessentially federal, and the authority of the
federal government in the area is plenary. 168 As a result, the federal
166. Jiménez de Aréchaga, op. cit., p. 557.
167. Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 27; Draft Articles on State Responsibility,
op. cit., arts. 4-6; Ian Brown lie, Princip/es of International Law ( 1990), p.
3 5. See also Free Zone of Upper Savoy & the District of Gex, Judgment,
1932, P.C.IJ, Series AIB. No. 46, p. 35 (France not pennitted to rely on
own legislation to limit scope of international duty); Greco-Bulgarian
"Communities, "Advisory Opinion, 1930, P.C.IJ, Series B, No. 17, p. 32
(between treaty parties provisions of municipal law cannot prevail over
treaty obligations); Treatment of Polish Nationals in Danzig, 1932, P.C.IJ.
Series AIE. No. 44, p. 24 (State cannot use own constitution to excuse
international law violations).
168. See U.S. Const., art. VI, cl. 2; United States v. Pink, 315 U.S. 203,
231 ( 1942) ("the power of a State to refuse enforcement of rights [based on
State policy considerations] ... must give way before the superior Federal
( continued ... )
60
VIENNA CONVENTION ON CONSULAR RELATIONS
authorities of the United States had ample means by which to ensu.re
compliance by state officials with the international obligation
imposed by this Court's Order. First, federal executive officials can
bring suit in the courts of the United States to enforce federal law, of
which the international obligations of the United States form a
part. 169 Second, the President has broad discretion to facilitate the
resolution of international disputes even acting on his own
authority. 170 Finally, the federal courts, including the Supreme
Court, have undoubted authority to enjoin state authorities from
168. ( ... continued)
policy evidenced by a treaty or international compact or agreement");
United States v. Belmont, 301 U.S. 324,331 (1937) ("complete power over
international affairs is in the national government and is not and cannot be
subject to any curtailment or interference on the part of the several states ");
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-22 (1936)
(because states never had sovereignty for foreign relations purposes,
ferlerai foreign relations authority is plenary); Missouri v. Ho/land, 252
U.S. 416 (1920) (upholding ferlerai statute regulating hunting ofmigratory
birds as irnplementation of treaty even on assumption that statute would be
invalid in absence oftreaty). See also Restatement (Third) of the Foreign
Relations Law of the United States§ 1, reporters' note 5 (1987).
169. See Brief for the United States as Amicus Curiae, p. 15 n. 3, Breard
v. Greene, _ U.S. _, 118 S. Ct. 1352 (1998), (citing United States v.
Arlington County to establîsh "the ability of the United States to sue in
order to enforce compliance with the Vienna Convention"), Annex 21;
Sanitary District v. United States, 266 U.S. 405, 425-26 (1925) (United
States has standing to bring suit agaînst State oflllinois to "carry out treaty
obligations to a foreign power"); United States v. Arlington County, 669
F.2d 925 (4th Cir.), cert. denied, 459 U.S. 801 (1982) (suit by United States
to enforce bilateral international agreement and enjoin municipality frorn
taxing property owned by foreign govemment); United States v. City of
Glen Cove, 322 F. Supp. 149 (E.D.N.Y.), aff'd on opinion below, 450 F.2d
884 (2d Cir. 1971) (suit by United States to enforce bilateral consular
convention and enjoin municipality from assessing taxes on property
owned by foreign govemment).
170. See, e.g., Dames & Moore v. Regan, 453 U.S. 654 ( 1981) ( upholding
executive authority to enter into Algiers Accords settling Iranian hostage
crisis and transferring claims from United States courts to Iran-United
States Clairns Tribunal).
61
MEMORIAL
enforcing a criminal conviction obtained in violation of federal
law. 171 Thus, the failure of the federal executive and the federal
judiciary to take any legally effective steps to halt the execution also
constituted a violation of the Ortler.
5.14 Angel Francisco Breard was not executed by accident.
The Govemor of Virginia decided to go forward, and the United
States Government decided to do nothing to stop him. By virtue of
both Virginia's act and the federal government's refusai to act, the
United States violated the Ortler.
171. See, e.g., Ky/es v. Whitley, 514 U.S. 419 (1995) (granting defendant
sentenced to death in state court proceeding new trial on petition for habeas
corpus under 28 U.S.C. § 2254 on grounds that state prosecutors withheld
evidence ); Felker v. Turpin, 518 U .S. 651 (1996) (holding that recent
amendment to the habeas corpus statute (Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 1 lO Stat. 1217) does not preclude
Supreme Court from entertaining an application for relief under statute);
AH Writs Act, 28 U.S.C. § 1651 (providing that the "Supreme Court and ail
courts established by Act of Congress may issue ail writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles oflaw"); Habeas Corpus Statute, 28 U.S.C. § 2254
(providing that 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 persan 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 law
or treaties of the United States"); see also Missow-i v. Jenkins, 495 U.S. 33,
57 ( l 990) (federal court may enjoin municipality to levy taxes to comply
with desegregation order, even when levy would contravene state law);
Asakura v. Seattle, 265 U .S. 332 (] 924) ( enjoining en forcement of
municipal ordinance in violation of treaty); French v. Hay, 89 U .S. (22
Wall.) 250 (1874) (federal court may enjoin enforcement of state judgment
entered in violation of federal law); cf Va. Stat. Ann. § 53.l-232(O)
(Virginia Director of Corrections must respect a stay of execution issued
by any court of competent jurisdiction), Annex l O.
62
VIENNA CONVENTION ON CONSULAR RELATIONS
II.
The Order of Provisional Measures
Was Binding on the United States
5 .15 In opposing Paraguay' s requests to the United States
Supreme Court that it give effect to the Order by stopping the
execution, the United States advised the court that an indication of
provisional measures pursuant to Article 41 was not binding as a
matter of international law.
172 "A treaty shall be interpreted in good
faith in accordance v.ith the ordinary meaning to be given to the
terms of the treaty in their context and in light of its object and
purpose."
173
As a matter of the ordinary meaning of Article 41 in its
context, no less than its evident object and purpose, the United States
is wrong.
172. Brief for the United States as Amicus Curiae, op. cit., pp. 49-51. The
Court has never squarely addressed the question whether orders indicating
provisional measures create binding obligations. See Application of the
Convention on the Prevention and Punishment of Genocide, Provisional
Measures, Order of 13 September 1993, LC.J. Reports 1993, p. 384
(separate opinion of Judge Weeramantry); ibid., p. 399 (separate opinion
of Judge Ajibola); Shigeru Oda, "Provisional Measures: the Practice of the
International Court of Justice," in Fifty Years of the International Court of
Justice: Essays in Honor of Sir Robert Jennings (Vaughan Lowe &
Malgosia Fitzmaurice eds., 1996), pp. 541, 555 ("[t]he Court has never
taken an overt position [ on the binding nature of provisional measures] but,
as a matter of principle, the Court's Order ought to be properly observed").
173. Vienna Convention on the Law of Treaties, 23 May 1969, 115 5
U.N.T.S. 331, 8 I.L.M. 679, art. 31. Articles 31 and 32 of the Vienna
Convention on the Law of Treaties reflect customary international law.
See, e.g., Olivier Corten, L'utilisation du "raisonnable" par le juge
international ( 1997), p. 34 ( collecting cases and doctrine).
63
MEMORIAL
A. ARTICLE 94( 1) OF THE CHARTER
REQUIRES THE PARTIES TO COMPL Y WITH
AN INDICATION OF PROVISIONAL MEASURES
5.16 Article 94(1) of the United Nations Charter obligates the
signatories "to comply with the decision of the International Court of
Justice in any case to which it is a party." 174 Given the judicial
means by which the Court resolves a request for an order of
provisional measures, it qualifies easily, as a matter of the ordinary
meaning of the term, as a "decision" of the Court subject to Article
94(1).175
5.17 The United States expressly recognized the breadth of
the obligation set forth in Article 94(1) after Iran failed to comply
with the Court's indication of provisional measures in United States
Diplomatie and Consular Staff in Tehran. At that time, the United
States stated:
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 any case to
which Iran might be a party. Accordingly it was the
174. U .N. Charter, art. 94(1) ( emphasis supplied).
175. See, e.g., Edvard Hambro, "The Binding Character of the Provisional
Measures of Protection Indicated by the International Court of Justice," in
Rechtsfragen der Internationalen Organisation (Walter Schatzel & HansJürgen
Sch!ochauer, eds., 1956), pp. 152, 168-69; Application of the
Convention on the Prevention of the Crime of Genocide, Order of 13
September 1993, I.C.J Reports 1993, pp. 383-84 (separate opinion of
Judge Weeramantry). See also ICJ Rules, art. 74(2) ("The Court, ifit is not
sitting when the request [for provisional measures] is made, shall be
convened forthwith for the purpose of proceeding to a decision on the
request as a matter of urgency.") (emphasis added); art. 76 (1) (Court has
authority to "revoke or modify any decision concerning provisional
measures") (emphasis added); art. 76(3) (requiring Court to provide parties
an opportunity to be heard "[b)efore taking any decision under paragraph
1 ") (emphasis added); art. 77 (requiring transmission of"any decision taken
by the Court under Article 76, paragraph 1 ... to the Secretary-General
... ") (emphasis added).
64
VIENNA CONVENTION ON CONSULAR RELATIONS
hope and expectation of the Government 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 the Court in the course of the present
litigation. 176
As the United States recognized, the obligation to comply imposed
by Article 94(1) covers "all Orders and Judgments" of this Court,
including an indication of provisional measures. 177
B. THE ÜRDINARY MEANING OF ARTICLE 41 IN ITS CONTEXT
EST ABLISHES THA T AN !NDICA TION
OF PROVISIONAL MEASURES 1s BINDING
5.18 Even without reference to Article 94(1) of the Charter,
the ordinary meaning of Article 41 ( 1) in its context makes it clear that
an indication of provisional measures is binding.
5.19 The Court's Statute is authentic, and equally authoritative,
in English, French, Spanish, Russian, and Chinese. 178
5.20 The English text of Article 41 provides:
1. The Court shall have the power to indicate,
if it considers that circumstances so require, any
provisional measures which ought to be taken to
preserve the respective rights of either party.
176. Oral Argument, United States Diplomatie and Consular Staff in
Tehran, I.C.J. Pleadings 1980, p. 266 (statement of Roberts Owen).
177. See also Jean Combacau & Serge Sur, Droit international public
(1997), p. 599.
178: See U.N. Charter, arts. 92, 111; Vienna Convention on the Law of
Treaties, 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679, art. 33(] ).
65
MEMORIAL
2. Pending the final decision, notice of the
measures suggested shall forthwith be given to the
parties and to the Security Council.
The French text of Article 41 provides:
1. 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.
2. En attendant l'arrêt définitif. l'indication de
ces mesures est immédiatement notifiée aux parties et
au Conseil de sécurité.
5.21 The context of Article 41 is (a) the Charter insofar as it
deals with the Court and (b) the Statute of the Court read as a
whole. 179 By virtue of the Charter, the Courtis "the principaljudicial
organ of the United Nations." 180 The Statute provides that the
"function" of the Courtis "to decide in accordance with international
law such disputes as are submitted to it."181 The procedures the
Court employs - whether on the merits, on an application for an
order of provisional measures, or on any other application by a party
before it - are judicial in character: the Court receives pleadings; it
hears the parties through oral and written submissions; and it
deliberates, votes, and renders an order or judgment.
5 .22 Hence, to state the obvious, the context in which Article
41 must be read is a treaty that constitutes the statute of a court. The
terms that appear there must therefore be read in light of the judicial
function with which the Court is charged.
179. Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 31(2).
180. U.N. Charter, art. 92 (emphasis supplied); see l.C.J. Statute art. 1.
181. I.C.J. Statute, art. 38(1 ).
66
VIENNA CONVENTION ON CONSULAR RELATIONS
1. The English Text of Article 41 (])
5.23 Sorne commentators have opined that the French and
English texts of Article 41 (1) diverge in respects material to the
question whether an indication of provisional measures is binding. 182
It appears to be generally agreed that ifthere is a discrepancy (which
is by no roeans generally agreed), the English text less clearly
supports the binding character of provisional roeasures. 183
5.24 Properly viewed, however, "in the[] context" of the
Statute as a whole - that is, as a provision defining the authority of
a judicial body - the English text of Article 41 adroits only of an
interpretation that provisional roeasures are binding. If even the
English text adroits only of that interpretation, there can be little
question that the Article must be so read.
a. "The Court shall have the power ... 11
5 .25 The ordinary meaning of the term "power" connotes the
capability to dernand compliance. 184 When it is considered that it is
182. See Henri-A. Rolin, "Force obligatoire des ordonnances de la Cour
permanente de Justice internationale en matière de mesures
conservatrices," in Mélanges offerts à Ernest Mahaim ( 193 5), pp. 280, 281
("La discordance est flagrante."); Jerzy Sztucki, lnterim Measures in the
Hague Court: An Attempt at Scrutiny (1983), p. 263 ("There is a clear
discrepancy between the French and the English text of Article 41. ").
183 . See, e.g., Jerzy Sztucki, op. cit., p. 263.
184. E.g., Cassell's New English Dictionary (2d ed. 1920), p. 833 (defining
"power" as the "[a]bility to do or act so as to effect something; ... strength,
force, energy, esp. as actually exerted; influence, dominion, authority
(over); right or ability to control; legal authority or authorization"); Oxford
English Dictionary: A New English Dictionary on Historical Princip/es,
Vol. VII (1908), p. 1213 (defining "power" as the "l. Ability to do or effect
something or anything, or to act upon a person or thing .... 2. Ability to
act or affect something strongly; physical or mental strength; might;
vigour, energy; force of character; telling force, effect .... 4. Possession
of control or command over others; dominion, rule; govemment,
( continued ... )
67
MEMORIAL
the "power" of a court that is under consideration, the connotation of
an obligation to comply becomes compelling.
5 .26 If an indication of provisional measures does not
constitute a binding order of the Court, it must have some other
fonction, as the Statute should not be read to include meaningless
provisions. 185 If an indication of provisional measures is not binding,
it must constitute only an appeal to the "moral" sense of the parties.
But any such moral exhortation would be inconsistent with the
fonction of the Court:
It cannot be lightly assumed that the Statute of the
Court - a legal instrument - contains provisions
relating to any merely moral obligations of States and
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. 186
184. ( ... continued)
domination, sway, command; control, influence, authority .... b. Authoricy
given or committed; hence, sometimes, liberty or permission to act. ... c.
The limits within which administrative power is exercised .... 5. Legal
abilicy, capacicy, or authorîty to act; esp. delegated authority; authorizatîon,
commission, faculty; spec. Iegal authority vested in a persan or persans in
a particular capacity.").
185. See Jacque Dehaussy & Mahmoud Salem, "Sources du droit
international: Les traités. Interprétation," l Juris classeur de droit
international, Fascicule 12-6 (1995), p. 18 (describing effet utile as "un
principe fondamental" of public international law); Jean Combacau &
Serge Sur, op. cit., p. 175 ("Concrètement, entre deux interprétations, on
retiendra celle qui donne un sens à chacun des termes, c'est-à-dire leur effet
utile, ce qui est le sens exact de la maxime ut res magis valeat quam
pereat. "). See also Olivier Corten, op. cil., pp. 42-43 ( 1997) ("Le
«raisonnable» se retrouve plus explicitement dans un moyen d'interprétation
consistant à donner toute sa portée à l'objet et au but d'une disposition, celui
dit de !'«effet utile».").
186. Sir Hersch Lauterpacht, The Development of International Law by the
International Court (1958), p. 254.
68
VIENNA CONVENTION ON CONSlJLAR RELATIONS
Put another way,
[ o ]n peut ajouter que si le statut prend soin d'accorder
expressément en cette matière un pouvoir à la Cour,
c'est là l'affirmation d'une compétence normale qui
doit sauf indication contraire s'exercer par la voie de
décisions obligatoires pour les Parties. 187
5.27 Indeed, the Court has previously cautioned that in
exercising its judicial authority, it must act to ensure the observance
of the inherent limitations on the exercise of the judicial function, and
to "maintain [the Court's] judicial character." 188 Hence, among other
things, the Court could not "give a judgment which would be
dependent for its validity on the subsequent approval of the
parties."189 Instead, the Court may act only where itsjudgment will
"have some practical consequence in the sense that it can affect
existing legal rights or obligations of the parties, thus removing
uncertainty from their legal relations." 190
5 .28 A nonbinding indication of provisional measures would
"dependO for its validity on the subsequent approval" of one of the
parties; it would not "affect existing legal rights and obligations." It
therefore would not partake of the Court's "judicial character." The
status of the Court as a court requires that the "power" accorded by
Article 41(1) be read to invoke a legal obligation to comply.
187. Henri-A. Rotin, op. cit., pp. 280,281 (emphasis in original).
188. Northern Cameroons, Judgment, J.C.J Reports 1963, p. 29; see also
Nuclear Tests (Australia v. France), Application for Permission to Intervene,
Order of 20 December 1974, I.C.J Reports 1974, p. 259.
189. Northem Cameroons, Judgment, I.C.J Reports 1963, p. 29 (internai
quotations omitted).
190. Ibid., pp. 33-34 (emphasis supplied).
69
MEMORIAL
b. '1
• • • to indicate . . . 11
5.29 The power "to indicate" provisional measures reinforces
the Court's judicial function. "[T]he word 'indicate' expresses exactly
the Court's function, which is to point out what the parties must do in
order to remain in hannony with what the Court holds to be the
law."191 Thus, the use of the term "indicate" as a matter of
diplomatie politesse cannot detract from the authority attaching to the
indication:
The term indicate, borrowed from treaties concluded
by the United States with China and France on
September 15, 1914, and with Sweden on October 13,
1914, possesses a diplomatie flavor, being designed to
avoid offense to the susceptibilities of states. It may
have been due to a certain timidity of the draftsmen.
Y et it is not less definite than the term order would
have been, and it would seem to have as much effect.
The use of the term does not attenuate the obligation
of a party within whose power the matter lies to carry
out the measures which ought to be taken. An
indication by the Court under Article 41 is equivalent
to a declaration of obligation contained in ajudgment,
and it ought to be regarded as carrying the same force
and effect. 192
191. Edward Dumbauld, lnterim Measures of Protection in International
Controversies (1932), p. 169 (emphasis in original). See also Roger Pinto,
"Cour internationale de Justice; Procédure," 4 Juris-classeur de droit
international, Fascicule 217 (1980), p. 14 (stating, with specific regard to
provisional measures, "les ordonnances de la Cour n'ont pas le caractère de
simples recommendations. Ce sont des décisions judiciaires. A ce titre
elles sont obligatoires pour les parties.").
192. Manley O. Hudson, The Permanent Court of International Justice,
1920-1942 (1943), pp. 425-26 (emphasis in original) (footnotes omitted)
(internai quotation marks omitted). See V.S. Mani, "Interim Measures of
Protection: Article 41 of the I.C.J. Statute and Article 94 of the UN
Charter," Indian J lnt'l L., Vol. 10 (1970), pp. 359, 365 ("The term
'indicate' was employed by the Advisory Committee of Jurists of 1920, not
( continued ... )
70
VIENNA CONVENTION ON CONSULAR RELATIONS
In context, the term "indicate," too, connotes a legal obligation te
comply.
c. ". . . if it considers that the circumstances so require . . . "
5.30 The Court responds to an application for an order of
provisional measures by "considering" whether the legal and factual
circumstances "require" the order. Again, the Court performs a
judicial function. If, after performing this function, the Court
determines that an indication of provisional measures is "required,"
it is hard to see how the adverse party, having been given the
opportunity to be heard, would not be "required" to comply with the
indication.
d. " ... any provisional measures which
ought to be taken to preserve
the respective rights of either party. "
5.31 "The word 'ought' carries the connotation of an
obligation . . .'d93 When used in the context of a court, it can
plausibly carry no other connotation.
192. ( ... continued)
because the Committee did not want to clothe the Court with a power of
issuing an order which would be binding upon the parties to a case, but
because of diplomatie precedent.") (footnotes omitted); see also C.H.
Crockett, "The Effects of Interim Measures of Protection in the
International Court of Justice," Cal. W. /nt'! L.J, Vol. 7 (1977), pp. 348,
3 54 ("In diplomacy, if a choice is presented, the phrase or term carrying the
least onerous connotation is usually chosen so long as that choice
accommodates the parties' intentions.").
193. Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Provisional Afeasures, Order of 13 September
1993, LC.J Reports 1993, p. 380 (separate opinion of Judge Weeramantry).
71
MEMORIAL
5.32 The reference to the parties' "rights" compels the same
conclusion. The concept of a legal right necessarily implies a
corresponding legal duty. 194
5.33 The object and purpose of provisional measures, "to
preserve the respective rights of either party," is addressed below.
Examînîng here only the context in which the terms "ought" and
"rights" appear, it suffices to observe that courts are simply not in the
business of making moral pronouncements or of provîding gentle
reminders of a State's legal obligations; they are charged to decide
cases in a manner that vindicates legal rights.
5.34 In sum, read in the context of Article 92 of the Charter
and of the Statute as a whole, the English text of Article 41 ( 1) cannot
bear an interpretation that strips an indication of provisional measures
of legal force.
2. The Other Authentic Texts of Article 41 (])
5.35 The French, Spanish, Russian, and Chinese texts of
Article 41 ( 1) strengthen the conclusion that an indication of
provisional measures is binding. In at least two respects, the
arnbiguity perceived by some in the English text does not appear in
the French counterpart, and the Spanish, Russian, and Chinese accord
with the French. For convenience, we refer to the French. 195
194. See, e.g., Jerome B. Elkind, Interim Protection: A Functional
Approach (1981), p. 153.
195. The Spanish, Russian, and Chinese texts of Article 41(1) read as
follows:
1. La Corte tendra facultad para indicar, si considera que
las circunstancias asî lo exigen, las medidas provisionales
que deban tomarse para resguardar los derechos de cada
una de las partes.
1. Cy)J, HMeeT rrpaBO YI<a3aTh, ec.JIB, IIO ero MHeHHIO, 3TO
Tpe6yeTCH o6CTOHTetihCTBaMtt, mo6bre BpeMeHHhie Mepb!,
{continued ... )
72
VIENNA CONVENTION ON CONSULAR RELATIONS
5.36 First, the phrase "power to indicate" is derived from
''pouvoir d'indiquer." While "indicate," particularly in a judicial
context, carries the force of obligation, "indiquer" is even less
susceptible of a merely precatory dimension. 196
5.37 Second, the French "doivent" adroits of a more limited
range of meaning than the English "ought." The French "doivent" is
generally translated as "must" and used to denote mandatory
obligations. 197 For example, in Article 40(1) of the Statute, the
phrase "doivent être indiqués" is rendered in English as "shall be
indicated," and in Article 43( 4), "doit être communiquée" as "shall be
communicated." 198 Thus, "doivent" accords with the principal
195. (. .. continued)
KOTOpbie ,ll;Oillioebl ÔbITh rrpttIDIThI 􀄸 o6ecrre-qemur rrpaB
Ka)K,,I(Oli H3 CTOpOH.
196. See Application of the Convention on the Prevention and Punishment
of the Crime o/Genocide, Provisional Measures, Order of 13 September
1993, LC.J. Reports 1993, p. 380 (separate opinion by Judge Weeramantry)
("the French word 'indiquer' probably goes even further in this direction [of
creating a connotation of obligation] than the English word 'indicate"'). See
also Petit Larousse illustré (1919), p. 502 (defining "indiquer" to mean
"montrer, désigner une personne ou une chose. Enseigner à quelqu'un ce
qu'il cherche.").
197. See Petit Robert dictionnaire alpha be tique et analogique de la langue
française, Tome I (1990), p. 531 (defining "devoir", when followed by an
infinitive, to mean "[ê]tre dans l'obligation de (faire qqch.) ... cf. Être tenu,
obligé de; il faut."); Gérard Cornu, Linguistique juridique (1990), p. 267
("Certains verbes, en petit nombre, expriment la contrainte .... Le noyau
[ de ces verbes] comprend les termes: devoir .... "). See also Jerzy
Sztucki, op. cit., pp. 263-64.
I 98. See also U.N. Charter, art. 2 ("doivent agir conformément" rendered
as "shall act in accordance with"); ibid, art. 2(2) ("doivent remplir"
rendered as "shall fulfill"); ibid., art. 12(1) ("ne doit faire aucune" rendered
as "shall not make any").
73
MEMORIAL
definition of "ought" in English, indicating obligation and duty, but
it does not admit of advisability and prudence.199
5.38 In the face ofthis divergence, if divergence there be, the
Court must adopt the reading that corresponds to the band of meaning
that is common to both texts, rather than choose a meaning that can
be reconciled only with one of the two. As the Permanent Court
explained,
where two versions possessing equal authority exist
one of which appears to have a wider bearing than the
other, [the Court] is bound to adopt the more limited
interpretation which can be made to hannonize with
both versions and which, as far as it goes, is doubtless
in accordance with the common intention of the
Parties. 200
In other words, hypothesizing a divergence for purposes of argument,
if the French text allows only an irnperative reading, and the English
permits both an imperative and a permissive one, then the imperative
reading is "the meaning which best reconciles the texts. 11201 Applying
that principle here, Article 41(1) must be read to empower the Court
to issue binding orders.
3. Article 41 (2)
5.39 In its brief to the United States Supreme Court, the
United States made much of the formulation "measures suggested" in
199. See Jerzy Sztucki, op. cit., p. 263 ("The French phrase 'doivent être
prises' which points to devoir (duty) is stronger than the corresponding
English phrase 'ought to be taken'.").
200. Mavrommatis Palestine Concessions Case, Judgment No. 2, 1924,
P.CJJ. Series A, p. 19.
201. Vienna Conventions on the Law ofTreaties, May 23, 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 33(4).
74
VIENNA CONVENTION ON CONSULAR RELATIONS
the second paragraph of the English text of Article 41.202 However,
none of the other authentic texts uses a term equivalent to "suggested"
in Article 41(2); each uses a term equivalent to "indicated."
Emphasis supplied, the non-English texts read, respectively:
2. En attendant l'arrêt définitif, l'indication de ces
mesures est immédiatement notifiée aux parties et au
Conseil de sécurité.
2. Mientras se pronuncia el fallo, se notificaran
inmediatamente a las partes y al Consejo de Seguridad
las medidas indicadas.
2. Brrpe 1, o oKolfCiamra pememra coo6 em1e o
npe;praraeMMX Mepax HeMe JieHHo OBO HTC5I o
cBe emrn cTopoH H CoBeTa EeJorracHocTH.
= . tt􀀆􀀇,u􀀈îrJ , ff!Jfey-Jttm1&ffeMitîI􀀖P3ffim"19"
#$18!.J&3ê􀀗:fl$􀀘o
Hence, as the comrnentators agree, the use of "suggested" in the
English text of Article 41 (2) cannot be read to change the meaning of
Article 41 (1 ). 203
202. Brieffor the United States asAmicus Curiae, op. cit., p. 49.
203. See Manley O. Hudson, op. cit., p. 425 n. 18 (''Little significance is
ta be attached ta the phrase 'measures suggested' in paragraph 2 of Article
41, no equivalent of which appears in the French version."); Eckhard
Hellbeck, "Provisional Measures of the International Court of Justice -
Are They Binding?," A.S.L.LS. Jnt'l L. J, Vol. 9 (1985), pp. 169, 171
(similar); see also Taslim O. Elias, The International Court of Justice and
Sorne Contemporary Problems (1983), p. 79 (similar).
75
MEMORIAL
C. THE ÜBJECT AND PURPOSE OF
BOTH ARTICLE 41 STANDING ALONE AND
THE ST ATUTE OF THE COURT TAKEN AS A WH OLE
REQUIRE THA T PROVISIONAL MEASURES BE BINDING
5.40 The terms of Article 41 must be interpreted not only "in
their context," but "in light of îts abject and purpose." In addition, if
the meaning of an international instrument differs between two
official texts - if, for example, the French and English texts of
Article 41 ( 1) are read to diverge - resort to abject and purpose may
be had in order to reconcile the texts. 204
5.41 The object and purpose of Article 41(1) is "to preserve
the respective rights of either party" pending resolution of the merits
of the dispute. The object and purpose of the Statute as a whole is to
allow the peaceful resolution of disputes in accordance with
international law. As this case illustrates, these objects and purposes
can only be achieved if an indication of provisional measures binds
the parties to the case befo re the Court.
1. A Nonbinding Indication of Provisional Measures
Cannot Preserve the Rights of the Requesting Party
5.42 Under Article 94(1) of the Charter, each Member of the
United Nations "undertakes to comply" with any decision of the
Court to which it is a party.205 In its Order of Provisional Measures
in this case, the Court explained that its power "to indicate
provisional measures ... is intended to preserve the respective rights
of the parties pending its decision .... " Hence, the Court further
explained, it "will not order interim measures in the absence of
'irreparable prejudice ... to rights which are the subject of dispute
"'
204. Vienna Conventions on the Law ofTreaties. May 23, 1969, 1155
U.N.T.S. 331, 8 LL.M. 679, art. 33(4); see also Restatement (Third) of
Foreign Relations Law of the United States § 325, cmt. f ( 1987).
205. See also I.C.J. Statute, art. 59.
76
VIENNA CONVENTION ON CONSULAR RELATIONS
l
5.43 Here, the Court determined that the execution of Mr.
Breard on the scheduled date "would render it impossible for the
Court to order the relief that Paraguay seeks and thus cause
irreparable harm to the rights it daims." Given that determination,
the Court concluded that "the circumstances require[ d] it to indicate
... provisional measures."
5.44 ln disregard of the Ortler, the execution of Mr. Breard
went forward. As the Court predicted, the execution has "render[ ed]
it impossible for the Court to order the relief Paraguay seeks."
5.45 Either the execution was unlawful as a breach of a
binding international obligation, or an indication of provisional
measures cannot possibly achieve the abject Article 41 purports to
seek:
[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 interirn rneasures intended to
preserve its efficacy should be equally binding.206
206. United Nations, Official Records of the Security Council, Sixth
Session, 559th Meeting, p. 20, document S/PV, 559 (1951) (statement of
Sir Gladwyn Jebb, Representative of the United Kingdom). See, e.g.,
Abdelhamid El Ouali, Effets juridiques de la sentence internationale
(1984), pp. 99-100 (provisional measures "doivent trouver le fondement de
leur force juridique essentiellement dans leur raison d'être"; "En
reconnaissant au juge international le pouvoir d'indiquer ces mesures, on
doit lui reconnaître par là-même implicitement le droit de les imposer aux
Etats."); E.K. Nantwi, The Enforcement of International Judicial Decisions
and Arbitral Awards in Public International Law ( 1966), p. 153 ("provision
that the final judgment is binding becomes pointless if the decision can be
negatived by actions of one of the parties in advance of the judgment");
Alan W. Ford, The Anglo-Iranian Oil Dispute of 1951-1952 (1954), p. 93
("a provision that the final decision Uudgment) is binding becomes
pointless if that decision can be negated by the actions of one party in
advance of judgment"); Julius Stone, Legat Contrais of International
(continued ... )
77
Indeed,
MEMORIAL
[t]he whole logic of the 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
judgement of the Court.207
The only way to vindicate the Court' s authority to preserve the rights
of the parties pending its final judgment is to recognize the binding
character of any provisional measures the Court indicates.
2. A Nonbinding Indication of Provisional Measures
Cannot Preserve the Court's Ability to
Resolve Disputes in Accordance with Law
5.46 This Court was "established by the Charter of the United
Nations as the principaljudicial organ of the United Nations. 11
208 In
other words, this Court contributes to the United Nations' mission of
206. ( ... continued)
Co,ifl.icts ( 1954), p. 132 (Court's indications of provisional measures must
be binding because "any other arrangement might leave an unscrupulous
defendant legally free to produce a fait accompli during time gained by a
dilatory plea to the jurisdiction ").
207. Sir Gerald Fitzmaurice, The Law and Procedure of the International
Court of Justice (1986), p. 548 (footnote omitted). See Application of the
Convention on the Prevention and Punishment of Genocide, Provisional
Measures, Order of 13 September 1993, LC.J. Reports 1993, p. 399
(separate opinion of Judge Ajibola) ("Logic and common sense would
consider it ridiculous and absurd for the Court to be unable to preserve the
rights of the parties pending final judgment."). Cf Sir Gerald Fitzmaurice,
op. cit., p. 548 n. 3 (if provisional measures orders were not binding, they
would "in practice, have a lesser status than that of other interlocutory
orders of far smaller importance .... ") ( emphasis in original).
208. I.C.J. Statute, art. l; see U.N. Charter, art. 92.
78
VIENNA CONVENTION ON CONSULAR RELATIONS
promoting the peaceful resolution of disputes and ensuring
compliance with international law by providing a judicial forum in
which international law may be impartially applied to such disputes
as States have consented to submit.209
5 .4 7 By arguing against the binding character of provisional
measures, the United States effectively contends that a party that has
consented to the judicial resolution of a given dispute retains the right
to determine whether or not to comply with an order of the tribunal
even when that order is intended to preserve the tribunal's capacity to
render an effective judgment in the dispute. That contention cannot
be squared with the object and purpose of judicial resolution of
disputes in accordance with international law.
210
5 .48 The Governor's conduct in this case demonstrates the
stark incompatibility between the Statute's purpose to facilitate the
judicial resolution of disputes and the notion that an indication of
provisional measures is not binding. Advised that he was under no
obligation to abide by the Order, but knowing that he would have an
obligation to abide by a final judgment, Govemor Gilmore
determined to go forward with the execution now so that he would
not be foreclosed from doing so later. While Govemor Gilmore's
action may, by his own lights, have been a rational response to the
United States' position, any legal regime that would induce such a
response to an order granting conservatory measures would be
thoroughly irrational.
5.49 When parties agree to submit a dispute to a court, they
consent to the resolution of the dispute by an impartial body in
accordance with established legal standards. By making that
submission, they necessarily waive their right to resolve the dispute
by unilateral action. As a result, the Court has repeatedly pointed out
that its authority under Article 41 "presupposes" that "the Court's
209. See U.N. Charter, art. 1(1).
21 O. See Manley O. Hudson, op. cit., p. 426 ("The judicial process which
is entrusted to the Court includes as one of its features, indeed as one of its
essential features, th[e} power to indicate provisional measures which
ought to be taken.").
79
MEMORIAL
judgment should not be anticipated by reason of any initiative
regarding the measures which are in issue."211 Any other rule would
effectively allow a party to oust the Court of its jurisdiction over the
subject matter of a dispute after the dispute has arisen, thereby
rendering meaningless the obligation undertaken by the
compromissory agreement.
5 .50 Hence, a court, to function in conforrnity with its
judicial character, must have the authority to control the resolution of
the dispute by excluding unsanctioned nonjudicial action:
The function of a judicial tribunal, once an issue has
been brought to it, is to take the necessary steps
according to law towards reaching a decision in
accordance with the principle of the equality of
parties. This presupposes that the issue brought to it,
once committed to the court, must as far as possible
be preserved in that forrn, free of interference by
unilateral action of a party, until the determination
made by the court. It means also that the principle of
equality cannot be disturbed by the superior force
available to one party, wherewith to impair or
interfere with the subject-matter until determination.
lt is thus inherent in the authority of that tribunal that,
ancillary to the power of judgment, it must have the
power to issue incidental orders to ensure that the
subject-matter of the suit is preserved intact until
judgment. 212
211. Fisheries Jurisdiction, (Federal Republic of Germany v. Iceland),
Interim Protection, Order of 17 August 1972, lC.J. Reports 1972, p. 34.
See also Aegean Sea Continental Shelj, Interim Protection, Order of 11
September 1976, 1.C.J. Reports 1976, p. 9 (Article 41 power presupposes
that "the Court's judgment(s] should not be anticipated by reason of any
initiative regarding matters in issue before the Court").
212. Application of the Convention on the Prevention and Punishment of
Genocide, Provisional Measures. Order of 13 September 1993, 1.C.J
Reports 1993, p. 376 (separate opinion of Judge Weeramantry); see also
Moncef Khdir, Dictionnaire juridique de la Cour internationale de Justice
( continued ... )
80
VIENNA CONVENTION ON CONSULAR RELATIONS
In short, once having agreed to submit a dispute to this Court, a party
does not have the right to act unilaterally on the dispute in the manner
of the United States here.213
D. THE INTERPRETATION OF ARTICLE 41
MUST ALso T AKE INT0 ACC0UNT THE RULE
ÎHAT THE PARTIES TO A JUDICIAL PROCEEDING HA VE
AN OBLIGATION TO PRESERVE THE SUBJECT MATTER
5.51 The interpretation of Article 41 must also take into
account any "relevant rules of international law applicable in the
212. ( ... continued)
(1997), p. 139 (defining "ordonnance" as "Terme employé pour désigner
une décision prise par la cour ou par son Président, et dont l'objet est de
régler un point de procédure, sans se prononcer sur le fond de l'affaire,
notamment en matière de mesures conservatoires . . . . Les ordonnances
ont un caractère obligatoire"); ibid., p. 124 ("[les mesures conservatoires]
ont force obligatoire au même titre que les arrêts de la cour.").
213. See Edvard Hambro, op. cil., pp. 164-65 ("It is in the very essence of
the Court that its decisions must be binding. It is against the function of the
Court and against the dignity of the Court (not the dignity in the sense of
protocol or prestige, but dignity of the Court as the embodiment of the
majesty of law) to render decisions which the Parties are free to accept or
to ignore at their will."); Jerome B. Elkind, op. cit., p. 30 (power to indicate
provisional measures is "part and parce! of the idea oflaw in the sense that
Iaw is a substitute for violence. A party who cannot rely on the courts for
ajust solution of his dispute may well recur to the more primitive remedy
of self-help. Nowhere is this problem more glaring than in a situation
where the other party has anticipated the judgment of the court and has
performed an action which would make that judgment valueless."); Edward
Dumbauld, op. cit., p. I 67 ("[T]he Court may forbid acts of self-help and
hostilities to the extent that such conduct interferes with the Court's
functioning or jeopardizes the functioning of its judgment."); Lawrence
Collins, "Provisional and Protective Measures in International Litigation,"
in Recueil des Cours, Tome 234, 1992-III (l 993 ), p. 23 ("[T]here are
historical grounds for seeing [the] origin [of provisional and protective
measures] in the desire ofthose administering the law to prevent violent
self-help . ... ").
81
MEMORIAL
relations between the parties."214 The rule applicable here is that,
quite apart from any conventional obligation, a party that has agreed
to submit a dispute for judicial resolution may not act on the subject
matter of the dispute in a manner that interferes with the capacity of
the tribunal to render an effective judgment.
5.52 The Permanent Court has confirmed that the authority
to indicate provisional measures pursuant to Article 41 simply 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 any kind to be taken which rnight aggravate or
extend the dispute.215
Thus, in exercising its authority under Article 41, the Court "give[s]
life and blood to a rule that already exists in principle."216
214. Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 31(3)(c).
215. Electric Company of Sofia and Bulgaria, Judgment, 1939, P.C.IJ,
Series AIE, No. 77, p. 199.
216. Edvard Hambro, op. cit .. p. 167. See, e.g., Comité des juristes de
l'étude du statut de la Cour Permanente de Justice Internationale (First
Session, 11 March 1929) (statement of Elihu Root) ("parties to a case,
when they submitted their controversy to the Court, might be regarded as
having corne under an obligation not to destroy the subject matter oftheir
controversy or in any way to anticipate the judgment of the Court by action
of their own;" "[ s ]uch an obligation was implied in their acceptance of the
jurisdiction of the Court") (unofficial translation); Henri-A. Rolin, op. cit.,
p. 295 ("Une première proposition qui ne nous paraît pas susceptible de
contradiction ... est que toute soumission de justiciables à une juridiction
... implique l'obligation de s'abstenir en cours d'instance de tout acte
susceptible soit de contrarier le fonctionnement du Tribunal, soit de
paralyser éventuellement l'efficacité de sa décision.").
82
VIENNA CONVENTION ON CONSULAR RELATIONS
5 .5 3 This principle of restraint is a rule of customary
international law.217 It is fundarnental that "from the moment that,
and as long as, a dispute is submitted to a 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 normative decision superfluous or impossible."218
Thus, even absent Article 41, "it is perfectly certain that all States
parties to an international dispute sub judice have an absolute
obligation to abstain from any act that would nullify the result of the
judgment to be rendered by the international court in question." 219
5 .54 This principle of restraint should inform the
interpretation of Article 41. Specifically, Article 41 should be read
to harmonize a party's preexisting obligation not to irrevocably alter
the subject matter of the dispute with the Court's express authority to
217. Peter J. Goldsworthy, "Interim Measures of Protection in the
International Court of Justice," Am. J Int'l L., Vol. 68 (1974), pp. 258, 260
("The practice of states reveals acceptance of a general obligation to
maintain the status quo pending a final decision in a dispute."). See, e.g.,
General Assembly Resolution 2625, United Nations Declaration of
Princip/es of International Law Concerning Friendly Relations and
Cooperation Among Nations in Accordance with the Charter of the United
Nations, reprinted in 9 I.L.M. 1292 ( 1970).
218. Niemeyer, Einstweilige Verjügungen des Weltgerichtshofs, ihr Wesen
und ihre Grenzen (1932), pp. 15-16 ( quoted and translated in Application
of the Convention on the Prevention ofGenocide, Provisional Measures,
Order of 13 September 1993, LC.J Reports 1993, p. 378 (separate opinion
of Judge Weeramantry)). See, e.g., Manley O. Hudson, op. cit., p. 426 ("If
a State has accepted the general office of the Court ... it has admitted the
powers which are included in the judicial process entrusted to the Court.
It would seem to follow that such a State is under an obligation to respect
the Court's indication ofprovisional measures .... "); Jerome B. Elkind, op.
cit., pp. 162-63 ("[t)he duty of the parties not to prejudice the outcome of
a judicial dispute pending the final decision of the Court can be[) seen as
a duty arising from the fact that judicial proceedings have been instituted").
219. Edvard Hambro, op cit., p. 167. See Application of the Convention
on the Prevention ofGenocide. Order of 13 September 1993, LC.J. Reports
1993, p. 377 (separate opinion of Judge Weeramantry) (citing Hambro with
approval on this point).
83
MEMORIAL
define the scope of that obligation in the circwnstances of a particular
dispute. Read in that light, an order pursuant to Article 41 must be
binding.
E. THE CIRCUMST ANCES OF THE ADOPTION OF
ARTICLE 41 CONFIR.\1 THAT AN INDICATION
OF PROVISIONAL MEASURES ls BINDING
5.55 "[T]he preparatory work of the treaty and the circumstances
of its conclusion" may provide a "supplementary means of
interpretation."220 Such means may be used (a) to confirm an
interpretation reached by the general rule that a treaty shall be
construed to accord with the ordinary meaning of the text in its
context and in the light of its purpose; (b) to resolve a meaning that
is "ambiguous or obscure;" or (c) to reconsider a reading that appears
"manifestly absurd or unreasonable."221 It follows that the
supplementary means cannot be used to overturn an interpretation
dictated by the general rule.
5 .56 In the case of Article 41, there is no reason to have
recourse to the supplementary means, as the ordinary meaning,
context, and abject and purpose of the provision establish a clear,
unambiguous, and eminently reasonable reading. But if recourse
were to be had, the supplementary means would only confirm the
binding character of an indication of provisional measures.
5.57 What is now Article 41 of this Court's Statute first
appeared as the like-numbered article of the Statute of the Permanent
Court of International Justice. The original draft of that Statute was
prepared by an Advisory Committee of Jurists that was appointed by
the League of Nations and met in 1920. The League's Secretariat
220. Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, 8 I.L.M. 679, art. 32.
221. Ibid.
84
VIENNA CONVENTION ON CONSULAR RELATIONS
prepared a preparatory memorandum,222 but the Advisory Committee
based the provision on language employed in the Bryan Treaties
between the United States and Sweden, France, and China,
respectively.223 The Statute was adopted by the Assembly of the
League ofNations on 13 December 1920.
5.58 The Statute ofthis Court was drafted by a Committee of
Jurists convened in Washington in 1945. The Cornrnittee adopted
Article 41 from the Statute of the Permanent Court without recorded
discussion and with only two minor changes.224 This Court's Statute
was unanimously approved, without discussion of Article 41, at the
San Francisco Conference later in 1945.225 Thus, if any preparatory
work or adoption history might shed light, it must be that preceding
the adoption of the Statute of the Permanent Court.
5.59 The circumstances surrounding the adoption of that
Statute by the Assembly of the League of Nations provide strong
support for the conclusion that an indication of provisional measures
222. See "Memorandum Presented by the Legal Section of the Permanent
Secretariat of the League of Nations," reprinted in Documents Presented
to the Committee Relating to Existing Plans for the Establishment of a
Permanent Court of International Justice ( 1920).
223. See Manley O. Hudson, op. cit., p. 425. See generally Hans-Jürgen
Schlochauer, "Bryan Treaties (1913/1914)," in Encyclopedia of Public
International Law. Vol. I (1992), pp. 509-11.
224. United Nations Committee of Jurists, Documents of the United
Nations Conference on International Organization San Francisco, Seventh
Meeting, 13 Apr. 1945, Vol. 14 (1945), p. 172. Only two changes were
included in the text of Article 41. The first, following a proposai from the
United States, was the addition of the word "Security" before "Council" in
the second paragraph, ta distinguish the organ to be notified of provisional
measures from the Council of the League ofNations. Second, the word
"reserve," in the second paragraph, was changed to "preserve" in
accordance with the original version approved in 1920 but inadvertently
altered in a typographical error.
225. Commission IV /1, Documents of the United Nations Conference on
International Organization San Francisco, Sixth Meeting, 12 May 1945,
Vol. 13 (1945), p. 170.
85
MEMORIAL
is binding. Before a final vote on the Statute, the Advisory
Committee's draft was referred to the Third Comrnittee of the
Assembly. The Committee made two changes to the English text.
First, the translation of "pouvoir d'indiquer" was revised from
"power to suggest" to "power to indicate."226 Second, the English
"should" was changed to "ought" to comport with "doivent."227 Had
the Assembly intended the Court' s authority to indicate provisional
measures to be merely advisory, there would have been no reason to
make these changes. 228
226. 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), p. 134 (noting that "M.
Huber said that the existing divergence between the two treaties must be
eliminated and he insisted that the stronger term 'indiquer' should be
considered authentic").
227. See ibid.
228. Sorne commentators have nevertheless been confused by a single
exchange in the Advisory Committee, by which the Committee declined to
adopt a proposai to replace "indicate" in Article 41 with "order." See
Procès-Verbaux of the Proceedings of the Committee, 28th Meeting, 20
July 1920, reprinted in League of Nations: Legal, Vol. 2 (1920), p. 588.
See, e.g., Jerzy Sztucki, op. cit., p. 24; Edward Dumbauld, op. cit., p. 168
& n. 9. This exchange simply cannot carry the weight that some have
asked it to bear. First, as a matter of law, the preparatory work cannot
override the ordinary meaning of the Article in its context and in light of
the statute's object and purpose. Second, there is no reason to believe that
the drafters believed that the term "indicate" would carry any less force
than "order. 11 See authorities cited at note 192 supra. Third, any inference
from an amendment that was not adopted in the Advisory Committee could
not overcome the contrary inference from the revision that was made by the
Third Committee, as the action taken by the delegates to the Assembly that
actually adopted Article 41 is better evidence of the Assembly's
understanding. Finally, the exchange, as well as a similar discussion in the
Committee Report, reflects not a conviction that the measures were not
binding but rather a concern that the Court would have no means to enforce
them. Procès-Verbaux of the Third Committee of First Assernbly, Fifth
Meeting, 29 Nov. 1920, reprinted in League of Nations: Permanent Court
of International Justice Documents Concerning the Action Taken by the
( continued ... )
86
VIENNA CONVENTION ON CONSULAR RELATIONS
F. THE COURT MUST CONSIDER
THE ÛRDINARY MEANING, CONTEXT, ÛBJECT AND PURPOSE,
RELEVANT RULES, AND ADOPTION H!STORY
AS THEY lNFORM lNTERPRET A TION TODA Y
5.60 In applying the available means oftreaty interpretation,
the Court cannot ignore the contemporary fabric of international law.
The treaty at issue, the Statute of the Court, is a constitutive treaty
that must speak for decades or longer. lt legitimates the work of an
institution that stands at the apex of the international legal order.
Given that position, the Court cannot ignore the contemporary legal
universe in which Article 41 operates.
5.61 This universe is far removed from that in which the
predecessor to Article 41 originated. In particular, the capacity of an
international tribunal to deal authoritatively with States no longer
stirs the controversy or concem that it once may have. 229 If this
Courtis to vindicate the role of the rule of law in the quest for peace,
it must assert its authority to perform effectively the task the Charter
has assigned it.
228. ( ... continued)
Council of the League of Nations, Vol. 3 (1920), p. 134 (statement of
Chairman Hagerup); Henri-A. Rolin, op. cit., p. 285 (examining ProcèsVerbaux,
Commissions, I, p. 368, and concluding that binding nature of
provisional rneasures was not at issue). See also Advisory Cornmittee of
Jurists, Report on the Draft Schemefor the Establishment of the Permanent
Court of International Justice ( 1920), p. 45.
229. See, e.g., Texas Overseas Petroleum Co./Ca!ifornia Asiatic Oil Co.
and Libyan Arab Republic (Dupuy, arb., 19 Jan. 1977) (Merits ), reprinted
in 17 I.L.M. 3 (1977) and 53 I.L.R. 389 ( 1979).
87
CHAPTER6
PARAGUAY IS ENTITLED TO
APPROPRIATE AND MEANINGFUL REMEDIES
6.1 Paraguay is entitled to adequate reparation for the United
States' violations of its international legal obligations, and it need not
ground its request for relief in any express authorization of a
particular remedy in the text of the Vienna Convention.
It is a principle of international law that the breach of
an engagement involves an obligation to mak:e
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. 230
To the contrary, "[p]rinciples of international law concerning
remedies are not rigid or formalistic and give an international tribunal
wide latitude to develop and shape remedies."231
6.2 There are four remedies to which Paraguay is entitled as
a result of the United States' several violations of the Vienna
Convention and customary law, including its violation ofthis Court's
Provisional Measures Order: (i) a declaration that the United States
violated the Vienna Convention in the manner set forth in this
Memorial; (ii) an order of non-repetition; (iii) restitutio in integrum,
that is, a restoration of the status quo - now an impossibility given
the execution of Mr. Breard; and (iv) compensation and satisfaction
in lieu of restitutio.
230. Memorial of the United States, United States Diplomatie and
Consular Staff in Tehran, l.C.J Pleadings 1980, p. 188, quoting Factory
at Chorz6w, Jurisdiction, Judgment No. 8, 1927, P.C.l.J. Series A, No. 9;
see also Factory at Chorz6w, Merits, Judgment No. 13, 1928, P.C.l.J.
Series A, No. 17, p. 29; Affaires des biens britanniques au l'vfaroc espagnol
(Sp. - Gr. Brit.), 1 May 1925, 2 R.LA.A. 615,641.
23 l. Restatement fThird) of the Foreign Relations Law of the United States
§ 901, cmt. d (1987).
88
VIENNA CONVENTION ON CONSULAR RELATIONS
I.
Paraguay Is Entitled to a Declaration that the United States
Violated Paraguay's Rights Under the Vienna Convention
6.3 This Court has jurisdiction to render declaratory
judgments in contentious cases. The purpose of such declaratory
relief 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 ensuing therefrom are concerned. 11232
6.4 It is with a view to just such a final interpretation of the
Vienna Convention that Paraguay requests a declaratory judgment
from the Court. The parties' dispute in this case concerns the
application of the Vienna Convention, an important treaty that
remains in force between the parties. Definitive interpretations by
this Court on the requirements of Article 36 of the Convention and
the consequences of violating its provisions will ensure that the
parties apply the Convention properly in the future and should
obviate the need for the parties to return to this Court with a similar
dispute.
6.5 Related concerns support a declaratory judgment with
respect to the United States' violation of the Provisional Measures
Ortler entered by the Court in this case. The United States' breach of
the Ortler also raises hotly disputed legal and factual issues with
continuing ramifications that this Court should definitively resolve.
II.
Paraguay 1s Entitled to an Order of Non-Repetition
6.6 Paraguay is entitled to an order that the United States not
repeat its violations of international law. As stated in the
232. Factory at Chorz6w, Interpretation of Judgments ,Vos. 7 and 8,
Judgment No. 11, 1927, P. C.IJ, Series A, No. 13, p. 20.
89
MEMORIAL
International Law Commission's Draft Articles on State
Responsibility, an "injured state is entitled, where appropriate, to
obtain from the State which has committed an internationally
wrongful act assurances or guarantees of non-repetition of the
wrongful act. "233
6. 7 There is particular need for an order of non-repetition in
this case, because the United States has already evinced a pattern of
violating the Vienna Convention,234 and Paraguay is entitled to
assurances that its rights will not be similarly violated in the future
should a Paraguayan national be arrested in the United States.
233. Drqft Articles on State Responsibility, op. cit., art. 46.
234. See, e.g., Republic of Paraguay v. Allen, 134 F.3d 622,629 & n.7 (4th
Cir. 1998) (expressing the court's "disenchantment" with Virginia's
repeated violations of the Vienna Convention); United Mexican States v.
Woods, 126 F.3d 1220, 1222-1223 (9th Cir. 1997); Murphy v. Netherland,
116 F.3d 97, 100 (4th Cir. 1997); Fau/der v. Johnson, 81 F.3d 515,550
(5th Cir. 1996). On 22 April 1998, one week after the execution of Mr.
Breard, the State of Arizona executed José Roberto Villafuerte, despite
pleas from President Carlos Flores Facusse of Honduras and an
acknowledgment by the United States Department of State that Article 36
was violated. See "US executes Honduran national by lethal injection,"
Agence France Presse, 22 Apr. 1998, available in LEXIS, News Iibrary,
Curnws file; Philippe Sands, "Execution of Paraguayan a Serious Error,"
Newsday, 23 Apr. 1998, p. A49. According to Amnesty International, there
are more than 60 foreign nationals on death row in the United States who
were denied their consular notification rights under the Vienna Convention.
Amnesty International, The Execution of Angel Breard: Apologies Are Not
Enough, May 1998, pp. 1-2; see also Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Execution, Mr. Bacre Waly Ndiaye,
Submitted Pursuant to Commission Resolution 1997/61, Official Records
ofthe Economie and Social Council, Commission on Human Rights, 54th
Session, provisional agenda item l 0, para. 118, document
E/CN.4/1998/68/Add.3; Marcia Coyle, "Are 65 Illegally on Death Row in
U.S.?", National Law Journal, 27 Apr. 1998, p. Al 6.
90
VIENNA CONVENTION ON CONSULAR RELATIONS
III.
Paraguay Was Entitled to Restitutio in Integrum
6.8 In the classic formulation from the Chorz6w Factory
Case: "The essential principle of international law is 'that reparation
must, as far as possible, wipe out all the consequences of the illegal
act and reestablish the situation which would, in ail probability, have
existed if that act had not been committed.'"235 Thus, "restitutio in
integrum is the natural redress of any violation of' international treaty
obligations. 236
6.9 Restitution is the sole remedy that could have provided
meaningful relief to Paraguay and its national - undoing the effects
of the United States' illegal acts (Mr. Breard's conviction and/or death
sentence) and perrnitting the exercise by Paraguay of its rights under
the Vienna Convention.237
235. Factory at Chorz6w, Merits, Judgment No. 13, 1928, P. C.LJ, Series
A, No. 17, p. 47. See also Draft Articles on State Responsibility, op. cit.;
Restatement (Third) of Foreign Relations Law of the United States§ 901,
cmt. d ( 1987) ("Ordinarily, emphasis is on the forms ofredress that will
undo the effect of the violation, such as restoration of the status quo ante,
restitution, or specific performance of an undertaking ...." ); Jiménez de
Aréchaga. op. cit., pp. 565-67.
236. Factory at Chorz6w, Jurisdiction, Judgment No. 8, 1927, P.C.I.J,
Sertes A, No. 9, p. 28. See also Oscar Schachter, International Law in
Theory and Practice: General Course in Public International Law ( 1985),
p. 190 ("When a state is intemationally responsible for a wrongful act ...
[it is] nonnally under a duty to restore the situation as it existed before the
breach."); Texas Overseas Petroleum Co./Califomia Asialie Oil Co. and
Government of the Libyan Arab Republic, (Dupuy, arb., 19 Jan. 1977)
(Merits), reprinted in 17 I.L.M. 3 (1977) and 53 I.L.R. 389 ( 1979) (citing
Lauterpacht, Reitzer, Schwarzenberger, Jiménez de Aréchaga, de Visscher,
Tenékidès and Guggenheim in support ofrestitutio in integrum as the basis
of reparation).
23 7. Schachter, op. cit., p. 190 ("When a State is intemationally
responsible for a wrongful act, it is under an obligation to discontinue the
act and to prevent the continuing of the effects ofthis act."); Restatement
(continued ... )
91
MEMORIAL
6.10 In this case, as adequate reparation for its illegal acts, the
United States would have had to void Mr. Breard's conviction and
sentence, permit Paraguay fully to exercise its right of consular
assistance at any new trial, and reconvey the plea offer that
Mr. Breard rejected as a result of his lack of consular protection; a
judgment requiring such relief would have restored the status quo
ante. Absent such an order, Paraguay and its national would continue
to suffer the consequences of the breach - as they did here.
6.11 It is of no consequence that restitution would have
required the United States to reverse the judgment of a domestic
criminal proceeding. "The 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. 11238
6.12 While it falls to the Court to determine the parties'
international legal obligations, it falls to the parties to comply with
those legal obligations. The Court will not give practical advice to
237. ( ... continued)
(Third) of Foreign Relations Law of the United States§ 901, cmt. d (1987)
("Ordinarily, emphasis is on the forms of redress that will undo the effect
of the violation ... "}. Cf Legal Consequencesfor States of the Continued
Presence ofSouthAfrica in Namibia (South West Africa) notwithstanding
Security Cowzcil Resolution 276 (1970), Advisory Opinion, LC.J Reports
1971, p. 54; Haya de la Torre. Judgment, LC.J Reports 1951, p. 82 ("(t]his
decision entails a legal consequence, namely that of putting an end to an
illegal situation: the Govemrnent of Colombia which had granted the
asylum irregularly is bound to terminate it. As the asylum is still being
maintained, the Govemment of Peru is legally entitled to claim that it
should cease."); Restatement (Third) of Foreign Relations Law of the
United States § 901 ( 1987) ("Under international law, a state that has
violated a legal obligation to another state is required to terminate the
violation ... ").
238. Restatement (Third) of the Foreign Relations Law of the United States
§ 901, cmt. c ( 1987). See United States v. Rangel-Gonzales, 617 F.2d 529
(9th Cir. 1980) ( overturning conviction for illegal entry after deportation
because defendant prejudiced by immigration officiais' failure in
deportation proceedings to inform ofright to contact consulate).
92
VIENNA CONVENTION ON CONSULAR RELATIONS
the parties as to how to implement their obligations. Instead, the
Court "assume[s] that the Parties, [once] their mutual legal relations
have been made clear, will be able to find a practical and satisfactory
solution. "239
6.13 Finally, the Vienna Convention specifically contemplates
the possibility that compliance with its obligations might
require changes to domestic law. As discussed above, Article 36(2)
requires that municipal "laws and regulations must enable full effect
to be given to the purposes for which the rights accorded under this
article are intended."
6.14 The travaux préparatoires to the Vienna Convention
demonstrate that the States Parties anticipated the potential conflict
between Article 36's obligations and domestic criminal law, and that
they understood that the international obligation undertaken must take
priority over countervailing rules of municipal law.240 At the Vienna
Conference on Consular Relations in 1963, the Soviet delegate
proposed restoring the International Law Commission draft of Article
36(2), which only required that municipal laws not "nullify" the rights
under Article 36. The Soviet delegate objected to the positive
formulation of Article 36(2) requiring states' municipal laws to give
"full effect to the purposes" for those rights, because "it might force
states to alter their criminal laws and regulations and allow consuls
to interfere with normal legal procedure in order to protect alien
offenders."241 The Romanian delegate supported the Soviet amendment,
stating that "[t]he provisions of the article could not possibly
239. Haya de la Torre, Judgment, lC.J Reports 1951, p. 82.
Significantly, the Court's judgrnent in the Haya de la Torre case ordered
the tennination ofwhat it had determined to be an illegal grant of asylum.
States typically view their powers over immigration as fondamental to
sovereignty, perhaps more so than even the criminai law. Nonetheless, this
Court determined this sovereign act to have been illegal and ordered that
it be reversed.
240. Lee Aff., paras 4-8.
241. United Nations, Official Records of the Conference on Consular
Relations, Vol. 1, Tweljth Plenary Meeting, para. 4, document
A/CONF.25/6.
93
MEMORIAL
attempt to modify the criminal laws or regulations or the criminal
procedure of the receiving State."242 Further, the Romanian delegate
opposed the idea that international law was superior to domestic law.
Thus, the delegates debated these issues, and rejected the position that
Article 36 should not be permitted to require a State to revise or alter
its criminal procedures or laws. The Conference, instead, passed the
current language, "which conformed to the principle that international
law prevailed over municipal law. "243
IV.
Given the United States' Violation of the Ortler,
Making Restitutio in lntegrum Impossible,
Paraguay Is Entitled to Alternative Reparation
6.15 The United States' action in executing Mr. Breard had
the effect, and was designed for the very purpose,244 ofpreventing the
possibility of restitutio in integrum.
6.16 This Court must not pennit the United States to limit its
international responsibility to Paraguay through deliberate disregard
of the rule oflaw. As the United States has previously argued, "[t]his
Court can best uphold the rule oflaw in the international community
by emphasizing that serious breaches of international law are not
without consequence. 11245
6.17 Under international law, Paraguay was entitled to
restitution of the status quo ante as the best and only adequate
remedy for the United States' violations of the Vienna Convention.
242. Ibid., Eleventh Plenary Meeting, para. 26.
243. Ibid., Nineteenth Meeting of the First Committee, para. 5 (statement
of the Spanish delegate).
244. Statement ofGovernor Jim Gilmore (14 Apr. 1998), Annex 24.
245. Memorial of the United States, United States Diplomatie and
Consular Staff in Tehran, L C.J P/eadings 1980, p. 189.
94
VIENNA CONVENTION ON CONSULAR RELATIONS
The actions of the United States that now prevent the Court from
providing this remedy do not affect Paraguay's original entitlement
to restitutio or the United States' responsibility now to make
alternative reparation that approximates as closely as possible
restoration of the status quo ante. As stated by the Court in Facto,y
at Chorzow, adequate reparation requires "[r]estitution in kind, or, if
this is not possible, payment of a sum corresponding to the value
which a restitution in kind would bear .... 11246
6.18 Similarly, by the very nature of the United States'
violation ofthis Court's Order of Provisional Measures, restitutio in
integrum is not available as a remedy for that breach. Therefore,
alternative reparation must also be available for this breach of
international law.
6.19 Reparation in any form 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."247 Needless to say, where, as here, the illegal act
resulted in the death of a human being, no form of reparation can
wipe out the consequences of that act. Inadequate though it may be,
however, Paraguay is entitled now to seek an alternative to the form
of relief originally sought. Thus, Paraguay should receive (1)
compensation for the taking of Mr. Breard's life in violation ofboth
the Vienna Convention and this Court' s Order of Provisional
Measures; and (2) satisfaction, in the form of moral damages, for the
moral injury it suffered as a result of these violations.
6.20 Paraguay respectfully requests that the Court "receive
evidence and . . . determine, in a subsequent phase of [these]
proceedings, the amount of damage to be assessed" in lieu of
restitutio in integrum.248
246. F actory at Chorzôw, Merits, Judgment No. 13, 1928, P. C.LJ, Sertes
A, No. 17, p. 47.
247. Ibid.
248. Fisheries Jurisdiction (Federal Republic of Germany v. lceland),
( continued ... )
95
SUBMISSIONS
6.21 FOR THESE REASONS, the submissions of the
Government of the Republic of Paraguay are as follows:
MA Y IT PLEASE THE COURT
(a) to adjudge and declare that the United States violated its
international legal obligations to Paraguay, in its own right
and in the exercise of its right of diplomatie protection of its
national, under articles 5 and 36 of the Vienna Convention, by
arresting, detaining, trying, convicting, sentencing, and
executing Angel Francisco Breard without providing
Paraguayan consular officials the opportunity to provide
effective assistance;
(b) to adjudge and declare that the United States violated its
international legal obligation under Article 36(2) of the
Vienna Convention by applying the municipal-law doctrine
of procedural default to bar Angel Francisco Breard from
raising his claim under the Vienna Convention and thereby
failing to give full effect in United States municipal law to the
provisions of Article 36;
(c) to adjudge and declare that the United States violated its
international legal obligation to comply with the Provisional
Measures Order issued by this Court on 9 April 1998 by
failing to take all meastrres at its disposa! to enstrre that Angel
Francisco Breard was not executed; and
(d) to adjudge and declare that the United States violated its
international legal obligation not to undertake any action that
might prejudice any eventual decision in the case or aggravate
the dispute by failing to halt the execution of Angel Francisco
Breard;
and, in light of the foregoing violations,
248. ( ... continued)
Merits, Judgment, LC.J. Reports 1974, p. 205.
96
VIENNA CONVENTION ON CONSULAR RELATIONS
(e) to adjudge and declare that the United States is under an
international legal obligation to provide Paraguay a guarantee
that the United States will not repeat its illegal acts, but will
carry out in confonnity with the foregoing international legal
obligations, any future detention of or criminal proceedings
against any Paraguayan national in its territory, whether by a
constituent, legislative, executive, judicial, or other power,
whether that power holds a superior or a subordinate position
in the organization of the United States, and whether that
power's functions are of an international or internai character;
(f) to adjudge and declare that Paraguay was entitled to restitutio
in integrum and would have been entitled to the restoration of
the status quo ante had the United States not executed Mr.
Breard;
(g) to adjudge and declare that in light of the United States'
actions rendering it impossible for the Court to provide the
remedy of restitutio in integrum, Paraguay, in its own right
and in the exercise of diplomatie protection of its national, is
entitled to payment by the United States, in an amount to be
determined by the Court in a subsequent proceeding, of (1)
compensation and (2) moral damages as satisfaction;
(h) to adjudge and declare that, as a remedy for the United States'
breach of the Provisional Measures Order and of its
international legal obligation not to undertake any action that
might prejudice any eventual decision in the case or aggravate
the dispute, the Republic of Paraguay is entitled to payment
by the United States, in an amount to be determined by the
97
MEMORIAL
Court in a subsequent proceeding, of ( 1) compensation and
(2) moral damages as satisfaction.
The Hague, 9 October 1998
Dr. José Emilio Gorostiaga
Asunci6n, Paraguay
Advocate-Counselor
Donald Francis Donovan
Barton Legurn
Michael M. Ostrove
Alexander A. Y anos
(Signed) Manuel Maria CACERES
Agent of the Republic of Paraguay
Katherine Birmingham Wilrnore
John M. Driscoll
Haider Ala Hamoudi
Daniel C. Malone
Debevoise & Plimpton
New York, New York, USA
Advocates-Counselors and Counselors
Text reflects corrections submitted
w the Court on 9 November
and 23 December 1998
98
LIST OF ANNEXES ITO THE MEMORIAL
OF PARAGUAY
Annex 1. AFFIDAVIT OF SRA. ARMENIA GUIBI VDA. DE BREARD, MOTHER OF
ANGEL FRANCISCO BREARD (TRANSLATION)
Annex 2. STIPULATION REGARDING FAILURE OF VIRGINIA OFFICIALS TO
NOTIFY MR. BREARD OF Hrs V IENNA CONVENTION RIGHTS
Annex 3. UNITED STATES DEPARTMENT OF STATE, CONSULAR NOTIFICATION
AND ÂCCESS, PP. 1 AND 4
Annex 4. PORTIONS OF THE UNITED STATES FOREIGN ÀFFAIRS MANUAL
DEALING WITH CONSULAR NOTIFICATION AND ACCESS
Annex 5. PORTIONS OF ICJ PLEADINGS, VIENNA CONVENTION ON CONSULAR
RELATIONS (PARAGUAY V. UNITED STATES OF AMERICA), VERBATIM
RECORD (UNCORRECTED), CR 98/7
Annex 6. AFFIDAVIT OF SR. JORGE G. PRIETO, FORMER PARAGUAYAN
AMBASSADOR TO THE UNITED STATES
Annex 7. STATEMENT OF His EXCELLENCY CEFERINO ADRIAN VALDEZ PERALTA,
PARAGUAYAN AMBASSADOR TO TAIWAN
Annex 8. PORTIONS OF MR. BREARD'S PETITION FOR A WRIT OF HABEAS
CORPUS IN FEDERAL COURT
Annex 9. PORTIONS OF AFFIDAVIT OF MR. BREARD's TRIAL COUNSEL,
MESSRS. RICHARD J. MCCUE AND ROBERT L. TOMLINSON, Il
Annex JO. PORTIONS OF THE VIRGINIA STATUTES GOVERNING CAPITAL CASES
Annex 11. MEMORANDUM FROM MR. BREARD'S TRIAL COUNSEL, MESSRS.
RICHARD J. MCCUE AND ROBERT LEE TOMLINSON, Il, TO MR. BREARD
Annex 12. AFFIDAVIT OF PROFESSOR WILLIAM S. GEIMER, DIRECTOR OF THE
VIRGINIA CAPITAL CASE CLEARINGHOUSE
Annex 13. AFFIDAVIT OF DR. JOSÉ IGNACIO GONZALEZ MACCHl,
PARAGUAYAN CRIMINAL COURT JUDGE (TRANSLATION)
Annex 14. PORTIONS OF MR. BREARD'S PETITION FOR A WRIT OF HABEAS
CORPUS IN VIRGINIA STATE COURT
Annex 15. AFFIDAVIT OF MR. ALEXANDER S. SLAUGHTER, FEDERAL HABEAS
COUNSEL TO MR. BREARD
Annex 16. STATEMENT OF SR. RICARDO CABALLERO AQUINO, COUNSELOR IN
THE PARAGUAYAN EMBASSY TO THE UNITED STATES
Annex 17. PORTIONS OF VIRGINIA'S MOTION TO DISMISS MR. BREARD'S
STATE HABEAS PETITION
Annex 18. PORTIONS OF BREARD V. NETHERLAND, 949 F. SUPP. 1255 (E.D.
VA. 1996)
Annex 19. PORTIONS OF BREARD V. PRUETT, 134 F. 3D 615 (4TH CIR. 1998)
Annex 20. LETTER DATED 13 APRIL 1988 FROM DONALD FRANCIS DONOVAN,
COUNSEL TO THE REPUBLIC OF PARAGUAY, TO SETH P. WAXMAN, SOUCITOR
GENERAL, AND DAVID R. ANDREWS, LEGAL ADVISOR, UNITED
STATES DEPARTMENT OF STATE
Annex 21. PORTIONS OF THE BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE ON PETITION FOR A WRIT OF CERTIORARI
1 Not reproduccd.
99
LIST OF ANNEXES TO THE MEMORIAL OF PARAGUAY
Ânnex 22. LETTER DATED 13 APRIL 1998 FROM HER EXCELLENCY
MADELINE K. ALBRIGHT, SECRETARY OF STATE OF THE UNITED STATES,
TO THE HONORABLE JAMES S. GILMORE, III, GOYERNOR OF THE COMMONWEALTH
OF VIRGINIA
Annex 23. OPINION OF THE SUPREME COURT DENYING CERTIORARf IN
BREARD V. GREENE, 118 S. CT. 1352 (1998)
Annex 24. STATEMENT OF 14 APRIL 1998 BY THE HONORABLE JAMES S.
G!LMORE, III, GOVERNOR OF THE STATE OF VIRGINIA
Annex 25. AFFIDAVIT OF Ms NANCY HUERTA, FEDERAL HABEAS COUNSEL
TO MR. BREARD AND WITNESS TO THE EXECUTION
Annex 26. LETTER DATED 15 APRIL 1998 FROM MR. DAVID R. ANDREWS,
AGENT OF THE UNITED STATES TO MR. EDUARDO VALENCIA-ÜSPINA,
REGrSTRAR OF THE INTERNATIONAL COURT OF JUSTICE
Annex 27. LETTER DATED 28 APRIL 1998 FROM HIS EXCELLENCY MANUEL
MARÎA CACERES, AGENT OF THE REPUBLIC OF PARAGUAY, T0 MR.
EDUARDO VALENCIA-ÜSPINA, REGISTRAR OF THE INTERNATIONAL COURT
OF JUSTICE
Annex 28. PORTIONS OF BRIEF OF BRAZIL, ARGENT!NA, ECUADOR, AND
MEXICO AS AMICI CURIAE IN SUPPORT OF PARAGUAY'S PETITION FOR A
WRIT OF CERTIORARI FROM THE UNITED STATES SUPREME COURT
Annex 29. AFFIDAVIT OF PROFESSOR LUKE T. LEE
100
CORRESPONDENCE
CORRESPONDANCE
101
1. THE AGENT OF PARAGUAY TO THE REGISTRAR OF THE
INTERNATIONAL COURT OF JUSTICE
7 April 1998.
In its oral submissions this morning, the United States stated that there was
no support in the domestic caselaw of the United States for the proposition
that a failure to accord the consular notification rights protected by the Vienna
Convention might affect the validity of a criminal conviction.
In rebuttal, Paraguay referred to United States v. Rangel-Gonzalez, a decision
of the United States Court of Appeals for the Ninth Circuit, and to an
earlier case from the same court on which Rangel-Gonzalez built. See United
States v. Rangel-Gonzalez, 617 F. 2d 529 (9th Cir. 1980) ; United States v.
Calderon-Medina, 591 F. 2d 529 (9th Cir. 1979). We have provided copies of
these decisions to the Court.
At the conclusion of Paraguay's rebuttal, the Court asked whether the defendants
in those cases had been retried. Paraguay partially responded and stated
that it would complete its response later today. Paraguay herewith attaches that
further response.
( Signed) Manuel Maria CACERES.
Response of Paraguay to Question Posed
at Conclusion of Paraguay's Rebuttal Submission
In United States v. Calderon-Medina, 591 F. 2d 529 (9th Cir. 1979), which
involved two consolidated cases, a federal trial court had dismissed indictments
for illegal re-entry following deportation. Such re-entry is a federal crime pursuant
to 8 USC § 1326. The courts had dismissed the indictments on the
ground that in the underlying deportations, immigration officiais had not complied
with a federal regulation that (1) provided that "[e]very detained alien
shall be notified that he may communicate with the consular or diplomatie officers
of the country of his nationality", and (2) was intended to "ensure compliance"
in immigration proceedings with the United States' obligations under
the Vienna Convention (591 F. 2d at 530 (quoting 8 CFR § 242.2 ( e) (1978));
ibid., at 530, n. 6). The Court of Appeals held that a deportation could be
denied effect as a predicate for the crime of illegal entry following deportation
"only if the violation prejudiced interests of the alien which were protected by
the regulation" (ibid., at 531). Applying that standard, the Court held that the
consular notification regulation protected interests of the aliens, but remanded
for a determination of prejudice.
There is no published subsequent decision in the case of Mr. CalderonMedina.
In United States v. Rangel-Gonzalez, 617 F. 2d 529 (9th Cir. 1980), the
companion case returned to the Court of Appeals after defendant had been
convicted of the offence charged, illegal re-entry after deportation. The Court
first held that the trial court had clearly erred by finding that the failure to
notify the Mexican consul had not affected the outcome of the deportation
proceeding. It then reversed the conviction, holding that "the indictment
should have been dismissed" (617 F. 2d at 529).
102
VIENNA CONVENTION ON CONSULAR RELATIONS
In the posture of Rangel-Gonzalez, unlike here, the consular notification violation
in the underlying deportation proceedings would have tainted any subsequent
indictment for illegal re-entry after deportation in the same manner as it
tainted the original indictment. Accordingly, Paraguay presumes that there
were no further proceedings on those charges. There is, in any event, no subsequent
published decision in Rangel-Gonzalez, so Paraguay also cannot determine
whether the United States initiated new deportation proceedings, which
would be the proceedings analogous to the state trial in this case.
2. THE AGENT OF THE UNITED STATES OF AMERICA TO THE REGISTRAR
9 April 1998.
I have the honor to refer to the Court's Ortler today in relation to Paraguay's
request for an indication of provisional measures in the case concerning the
Vienna Convention on Consular Relations ( Paraguay v. United States of America).
In its Ortler, the Court indicated that the United States should "inform the
Court of all the measures which it has taken in implementation" of the Ortler.
Accordingly, I wish to inform you of several recent actions related in that
Ortler.
1. On April 2, the day before this case was filed. I communicated to the
Counsel of the Governor of Virginia, on behalf of the Secretary of State of
the United States, a request that the Commonwealth of Virginia stay the execution
of Angel Breard. After consultation with the Governor, Counsel for the
Governor replied that Virginia was not at that time prepared to grant our
request in light of the pendency of the case before the US Supreme Court.
2. I have today transmitted to the Governor of Virginia a copy of the
Court's Ortler and requested that he give consideration to it.
3. I have asked the Solicitor General of the United States (the Justice
Department official who represents the United States before the US Supreme
Court) to ensure that a copy of the Court's Ortler is promptly transmitted to
the Supreme Court, and this is being done. We are also discussing the Court's
Ortler with officiais of the Department of Justice as a matter of urgency.
(Signed) David R. ANDREWS.
3. THE AGENT OF THE UNITED STATES OF AMERICA TO THE REGISTRAR
( by telefax)
15 April 1998.
I have the honor to refer further to the Court's Ortler of April 9 in the case
concerning the Vienna Convention on Consular Relations ( Paraguay v. United
States of America). ln that Ortler, the Court indicated that the United States
should "inform the Court of ail the measures which it has taken in implementation"
of the Order. I have previously written to you conceming the measures
taken on April 9. This letter describes subsequent events.
103
CORRESPONDENCE
l. On Montlay, April 13, the Secretary of State of the United States wrote to
Governor Gilmore of the Commonwealth of Virginia, formally requesting that
he exercise his powers as Governor to stay the execution of Mr. Angel Breard
in light of the Court's indication of provisional measures. A copy of Secretary
Albright's letter to Governor Gilmore is attached 1
•
2. Also on April 13, the Solicitor General filed a brief in the US Supreme
Court on behalf of the United States responding to an April 9 order from the
Supreme Court. This brief was prepared with close consultation between the
US Departments of State and of Justice. It stated that:
"[t]he Executive Branch, on behalf of the United States, takes the order
recently entered by the ICJ very seriously, even though the United States
argued against that court's jurisdiction and against the indication of provisional
measures. Accordingly, in response to the ICJ's order, the Secretary
of State is today requesting that the Governor of Virginia stay
Breard's execution".
At the same time, the US brief concluded that it would be inconsistent with the
governing rules of US domestic law for the Supreme Court to order a stay of
Mr. Breard's execution by the Commonwealth of Virginia, for many of the
reasons indicated by the US Supreme Court in its April 14 opinion (infraj.
Severa! other briefs were filed in the Supreme Court on April 13 and 14,
including a further brief by Paraguay filed on April 14.
3. During the evening of April 11, the Supreme Court of the United States
issued a per curiam opinion denying the various motions and petitions before it
relating to Mr. Breard's case. A copy is attached 2
•
4. Following the Supreme Court's action, later in the evening of April 14,
the Governor of Virginia decided not to stay the execution, and Mr. Breard
was executed.
This Court's April 9 Order indicated that the United States "should take al!
measures at its disposai to ensure that Angel Francisco Breard is not executed
pending the final decision in these proceedings". The United States has taken
"the Court's indications seriously into account", case concerning Military and
Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of
America), Merits, Judgment of 27 June 1986, para. 289. Through its actions,
culminatîng in the Secretary of State's April 13 request to the Governor of Virginia
to stay Mr. Breard's execution on account of this Court's indication of
provisional measures, the United States took ail measures lawfully at its disposa!
to do what the Court requested.
4. THE AGENT OF PARAGUAY TO THE REGISTRAR
28 April 1998.
I have the honour to respond to the letter of David R. Andrews, Agent of
the United States to this Court, dated 15 April 1998, reporting on the actions
of the United States pursuant to the Court's Order of 9 April 1998 indicating
1 Not reproduced.
2 Not reproduced.
104
VIENNA CONVENTION ON CONSULAR RELATIONS
provisional measures in the case concerning the Vienna Convention on Consular
Relations ( Paraguay v. United States of America).
As the United States advises, officiais of the Commonwealth of Virginia executed
Angel Francisco Breard as scheduled on Tuesday, 14 April 1998. The
Governor of the Commonwealth of Virginia took no steps to hait the execution,
and no federal authority took any action to compel Virginia officiais not
to go forward. In these circumstances, Paraguay regretfully takes issue with the
United States' assertion that it complied with its obligation to "take all measures
at its disposai to ensure that Angel Francisco Breard is not executed
pending the final decision in these proceedings".
At the time this Court issued its 9 April Order, Paraguay had pendîng before
the United States Supreme Court a petition for a writ of certiorari and accompanying
application for a stay of or injunction against the execution. On
Friday, 10 April, Paraguay submitted a supplemental application for a stay or
injunction, citing the Ortler as a separate and independent ground on which to
grant the application. Also on Friday, 10 April, Mr. Breard, who already has
pending a petition for a writ of certiorari, filed an original petition for a writ
of habeas corpus in the Supreme Court on the basis of the Order indicating
provisional measures. On Montlay, 13 April, also invoking the Supreme Court's
original jurisdiction, Paraguay filed a motion for leave to file an original cornplaint
that, like the supplemental application for a stay or injunction, requested
relief from the execution on the basis of this Court's Order.
Also on Montlay, 13 April, Paraguay's counsel wrote to Mr. Waxman, Solicitor
General of the United States, and Mr. Andrews, Legal Adviser to the
Department of State and Agent to this Court in this proceeding, to call upon
the United States to fulfil its obligations pursuant to the 9 April Order.
Paraguay requested that the United States (i) support Paraguay's applications
to the United States Supreme Court for a stay of Mr. Breard's execution pending
a final decision by this Court on the merits of Paraguay's suit; (ii) file an
action in the United States' own name in the United States District Court
requiring Virginia officiais to comply with the 9 April Ortler ; (iii) support
Mr. Breard's applications for relief from the impending execution ; and
(iv) take any other steps that might be necessary to ensure compliance with the
9 April Ortler by Virginia officiais and, hence, the United States. That letter, a
copy of which is attached, confirmed discussions between counsel to Paraguay,
on the one hand, and Mr. Andrews, Mr. Waxman, and their deputies, on the
other, during the period immediately following issuance of the Ortler.
The United States did not take any of the steps identified in the 13 April
letter. Instead, on 9 April, the United States submitted a copy of the Order to
the United States Supreme Court, and on 13 April, the Secretary of State
wrote a letter to the Governor of the Commonwealth of Virginia requesting
that he grant a reprieve of Mr. Breard's execution, a request the Governor
declined to honour. At the same time, in a brief filed 13 April 1998 and signed
by the Solicitor General and Mr. Andrews, in his capacity as Legal Adviser of
the State Department, the United States argued to the Supreme Court that
(i) the Order indicating provisional measures was "precatory rather than
mandatory"; (ii) the Secretary's letter represented the only "measure0 at [the
United States' ] disposai under [the United States] Constitution" to ensure compliance
with the 9 April Ortler ; and (iii) the Supreme Court should not grant
either Paraguay's or Mr. Breard's requests for a stay of the execution.
Barly on 14 April, Paraguay submitted a reply to the brief of the United
States to the Supreme Court, again urging that court to give effect to this
Court's Order.
105
CORRESPONDENCE
At approximately 8 .30 p.m. on 14 April, the United States Supreme Court
issued a decision denying (i) Paraguay's petition for a writ of certiorari and
motion for leave to file an original complaint; (ii) Mr. Breard's petitions for a
writ of certiorari and for an original writ of habeas corpus ; and (iii) the corresponding
requests for provisional relief halting the execution. Breard v. Greene,
66 USLW 3684 (US Apr. 14, 1998) (Nos. 97-8214, 97-1390, 97-8660, and 125
Orig.). The decision barely acknowledged this Court's Order and did not
expressly consider its effect.
Immediately upon learning of the Supreme Court's decision, Paraguay fîled
a new complaint in the United States District Court for the Eastern District of
Virginia requesting that court to give effect to the Order indicating provisional
measures by ordering Virginia officiais not to carry out the execution. When
that court denied emergency relief, Paraguay took an immediate appeal to the
United States Court of Appeals for the Fourth Circuit, which also denied
relief. Around the same time, the Governor announced that he would not
accede to the Secretary's request to halt the execution. Shortly thereafter, at
approximately 10.30 p.m., Virignia officials executed Mr. Breard.
Paraguay respectfully submits that the filing of this Court's Order with the
Supreme Court and the issuance of the Secretary's letter to the Governor did
not amount to "all measures at [the] disposa!" of the United States to ensure
that Mr. Breard's execution be stayed.
First, the Governor of Virginia, an official of the United States as a matter
of international law, has plenary power to grant reprieves of capital sentences,
See Va. Stat. Ann., § 53.1-229 ("[T]he power to commute capital punishment
and to grant pardons or reprieves is vested in the Governor"); see also ibid.,
§ 53. l-232 (D) ("Should the condemned prisoner be granted a reprieve by the
Governor . . . the Director [of Corrections] shall yield obedience to [such
reprieve]"). At the end of the term of reprieve by the Governor, an execution
may proceed without resentencing. See ibid., § 53.1-232 (C). The Governor,
however, failed to grant Mr. Breard a reprieve.
Second, the breadth of federal authority in the area of international relations
belies the United States' suggestion that federal executive authorities were constitutionally
incapable of enforcing compliance by state officiais with federal
law in the form of the United States' international obligations. See Sanitary
District v. United States, 266 US 405, 425-426 (1925) (United States has standing
to bring suit against State of Illinois to "carry out treaty obligations to a
foreign power"); United States v. Arlington County, 669 F. 2d 925 (4th Cir.),
cert. denied, 459 US 801 (1982) (suit by United States to enforce bilateral international
agreement and enjoin municipality from taxing property owned by
foreign government); United States v. City of Glen Cove, 322 F. Supp. 149
(EDNY), aff'd on opinion below, 450 F. 2d 884 (2d Cir. 1971) (suit by United
States to enforce bilateral consular convention and enjoin municipality from
assessing taxes on property owned by foreign government); see also Dames &
Moore v. Regan, 453 US 654 (1981) (affording Executive Branch great latitude
in effecting resolution of international dispute); Asakura v. Seattle, 265 US
332 (1924) (enjoining enforcement of municipal ordinance that violated treaty).
Indeed, in his brief to the Supreme Court, the United States Solicitor General
expressly recognized that the ferlerai executive has the authority to bring a judicial
action to enforce compliance with international obligations by constituent
entities of the United States. Brief of the United States as Amicus Curiae
(13 April 1998) at 15, n. 3 (citing United States v. Arlington County to establish
"the ability of the United States to sue in order to enforce compliance with the
Vienna Convention").
106
VIENNA CONVENTION ON CONSULAR RELATIONS
Third, the judiciary engages the United States' international responsibility as
fully as does the executive. Ian Brownlie, State Responsibility, Part 1, 144
( 1983) ("The judiciary and the courts are organs of the state and they generate
responsibility in the same way as other categories of officiais") ; Report of the
lnt'l Law Comm'n, UN, GAOR, 51st Sess., Supp. No. 10, Art. 6, at 126, UN
doc. A/51/10 (1996) (draft articles on State Responsibility) ("draft articles").
The United States Supreme Court has the authority to enforce compliance by
state officiais with federal law, of which international law forms a part, and
which prevails over inconsistent state law. US Const., Art. VI, cl. 2 ; Cooper v.
Aaron, 358 US 1, 18-19 (1958); see also Missouri v. Jenkins, 495 US 33, 57
(1990) (federal court may order municipality to levy taxes to comply with
desegregation order, even when levy would contravene state law) ; French v.
Hay, 89 US (22 Wall.) 250 (1874) (federal court may enjoin enforcement of
state judgment entered in violation of federal law); cf Va. Stat. Ann. § 53.1-
232 (D) (Virginia Director of Corrections must respect a stay of execution
issued by any court of competent jurisdiction). The Supreme Court, the final
arbiter of ferlerai law, Marbury v. Madison, I Cranch 137 (1803), clearly had
the authority to stop the execution by means of a stay or injunction, but did
not.
Finally, the United States' failure to comply with this Court's Order would
not be excused even if, as a matter of United States law, the measures identified
above were not available to the state executive, the federal executive, and
the federal judiciary, respectively. There can be no dispute that the execution
was within the contrai of competent authorities of the United States. Given
that contrai over the occurrence or non-occurrence of the disputed event, there
can also be no dispute over the United States' responsibility. "It is a generally
accepted principle of international law that a federal state is responsible for the
conduct of its political sub-divisions and cannot evade that responsibility by
alleging that its constitutional powers of control over them are insufficient for
it to enforce compliance with international obligations." (Jiménez de Aréchaga,
"International Responsibility", in Manual of Public International Law, 531, 557
(Max S0rensen, ed., 1968).) This principle reflects an even more fondamental
dictate - that a State may not rely on municipal law impediments to excuse a
failure to comply with an international obligation. See Vienna Convention on
Law of Treaties, Art. 27; see also draft articles, Arts.5 -8, 10, at 126-128.
In surn, Paraguay submits that the United States failed to "take ail rneasures
at its disposai to ensure that Angel Francisco Breard ... not [be] executed
pending the final decision in these proceedings".
{ Annex to letter not reproduced. J
5. THE AGENT OF PARAGUAY TO THE REGISTRAR
2 November 1998.
I have the honour to refer to the case concerning the application of the
Vienna Convention on Consular Relations ( Paraguay v. United States of America).
In accordance with Article 89 of the Rules of Court, the Government of
Paraguay hereby informs the Court that it wishes to discontinue the proceedings,
with prejudice. Paraguay accordingly requests that the case be removed
from the List.
107
CORRESPONDENCE
6. THE AGENT OF THE UNITED STATES OF AMERICA TO THE REGISTRAR
3 November 1998.
I have the honor to refer to your letter of November 2, 1998, whereby you
have conveyed to my Government a letter of the same date from the Government
of Paraguay regarding the case concerning the application of the Vienna
Convention on Consular Relations ( Paraguay v. United States of America).
In its November 2 Ietter, the Government of Paraguay has informed the
Court that, in accordance with Article 89 of the Rules of Court, the Government
of Paraguay wishes to discontinue the proceedings with prejudice and has
requested that the case be removed from the List.
Please be advised that the Government of the United States concurs in discontinuance
of the proceedings with prejudice and in the Govemment of
Paraguay's request.
108