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[p.248]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73, 74 and 75 of the Rules of Court,
Having regard to the Application filed in the Registry of the Court on 3
April 1998, whereby the Republic of Paraguay (hereinafter "Paraguay")
instituted proceedings against the United States of America (hereinafter
"the United States") for "violations of the Vienna Convention on Consular
Relations [of 24 April 1963]" (hereinafter the "Vienna Convention")
allegedly committed by the United States, [p 249]
Makes the following Order:
1. Whereas, in its aforementioned Application, Paraguay bases the
jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the
Court and on Article I of the Optional Protocol concerning the Compulsory
Settlement of Disputes, which accompanies the Vienna Convention on Consular
Relations ("the Optional Protocol");
2. Whereas, in the Application, it is stated that in 1992 the authorities of
the Commonwealth of Virginia arrested a Paraguayan national, Mr. Angel
Francisco Breard; whereas it is maintained that he was charged, tried,
convicted of culpable homicide and sentenced to death by a Virginia court
(the Circuit Court of Arlington County) in 1993, without having been
informed, as is required under Article 36, subparagraph 1 (b), of the Vienna
Convention, of his rights under that provision; whereas it is specified that
among these rights are the right to request that the relevant consular
office of the State of which he is national be advised of his arrest and
detention, and the right to communicate with that office; and whereas it is
also alleged that the authorities of the Commonwealth of Virginia also did
not advise the Paraguayan consular officers of Mr. Breard's detention, and
that those officers were only able to render assistance to him from 1996,
when the Paraguayan Government learnt by its own means that Mr. Breard was
imprisoned in the United States;
3. Whereas, in the Application, Paraguay states that Mr. Breard's subsequent
petitions before federal courts in order to seek a writ of habeas corpus
failed, the federal court of first instance having, on the basis of the
doctrine of "procedural default", denied him the right to invoke the Vienna
Convention for the first time before that court, and the intermediate
federal appellate court having confirmed that decision; whereas,
consequently, the Virginia court that sentenced Mr. Breard to the death
penalty set an execution date of 14 April 1998; whereas Mr. Breard, having
exhausted all means of legal recourse available to him as of right,
petitioned the United States Supreme Court for a writ of certiorari,
requesting it to exercise its discretionary power to review the decision
given by the lower federal courts and to grant a stay of his execution
pending that review, and whereas, while this request is still pending before
the Supreme Court, it is however rare for that Court to accede to such
requests; and whereas Paraguay stated, moreover, that it brought proceedings
itself before the federal courts of the United States as early as 1996, with
a view to obtaining the annulment of the proceedings initiated against Mr.
Breard, but both the federal court of first instance and the federal
appellate court held that they had no jurisdiction in the case because it
was barred by a doctrine conferring "sovereign immunity" on federated
states; whereas Paraguay also filed a petition for a writ of certiorari in
the Supreme Court, which is also still pending; and whereas Paraguay
furthermore engaged in diplomatic efforts with the Govern-[p 250]ment of the
United States and sought the good offices of the Department of State;
4. Whereas, in its Application, Paraguay maintains that by violating its
obligations under Article 36, subparagraph 1 (b), of the Vienna Convention,
the United States prevented Paraguay from exercising the consular functions
provided for in Articles 5 and 36 of the Convention and specifically for
ensuring the protection of its interests and of those of its nationals in
the United States; whereas Paraguay states that it was not able to contact
Mr. Breard nor to offer him the necessary assistance, and whereas
accordingly Mr. Breard "made a number of objectively unreasonable decisions
during the criminal proceedings against him, which were conducted without
translation"; and "did not comprehend the fundamental differences between
the criminal justice systems of the United States and Paraguay"; and whereas
Paraguay concludes from this that it is entitled to restitutio in integrum,
that is to say "the re-establishment of the situation that existed before
the United States failed to provide the notifications . . . required by the
Convention";
5. Whereas Paraguay requests the Court to adjudge and declare as follows:
"(1) that the United States, in arresting, detaining, trying, convicting,
and sentencing Angel Francisco Breard, as described in the preceding
statement of facts, violated its international legal obligations to
Paraguay, in its own right and in the exercise of its right of diplomatic
protection of its national, as provided by Articles 5 and 36 of the Vienna
Convention;
(2) that Paraguay is therefore entitled to restitutio in integrum;
(3) that the United States is under an international legal obligation not to
apply to the doctrine of 'procedural default', or any other doctrine of its
internal law, so as to preclude the exercise of the rights accorded under
Article 36 of the Vienna Convention; and
(4) that the United States is under an international legal obligation to
carry out in conformity with the foregoing international legal obligations
any future detention of or criminal proceedings against Angel Francisco
Breard or any other 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
internal character;
and that, pursuant to the foregoing international legal obligations,
(1) any criminal liability imposed on Angel Francisco Breard in violation of
international legal obligations is void, and should [p 251] be recognized as
void by the legal authorities of the United States;
(2) the United States should restore the status quo ante, that is,
re-establish the situation that existed before the detention of, proceedings
against, and conviction and sentencing of Paraguay's national in violation
of the United States' international legal obligations took place; and
(3) the United States should provide Paraguay a guarantee of the
non-repetition of the illegal acts";
6. Whereas, on 3 April 1998, after having filed its Application, Paraguay
also submitted an urgent request for the indication of provisional measures
in order to protect its rights, pursuant to Article 41 of the Statute of the
Court and to Articles 73, 74 and 75 of the Rules of Court;
7. Whereas, in its request for the indication of provisional measures,
Paraguay refers to the basis of jurisdiction of the Court invoked in its
Application, and to the facts set out and the submissions made therein; and
whereas it reaffirms in particular that the United States has violated its
obligations under the Vienna Convention and must restore the status quo
ante;
8. Whereas, in its request for the indication of provisional measures of
protection, Paraguay states that, on 25 February 1998, the Circuit Court of
Arlington County, Virginia, ordered that Mr. Breard be executed on 14 April
1998; whereas it emphasizes that "[t]he importance and sanctity of an
individual human life are well established in international law" and "[a]s
recognized by Article 6 of the International Covenant on Civil and Political
Rights, every human being has the inherent right to life and this right
shall be protected by law"; and whereas Paraguay states in the following
terms the grounds for its request and the possible consequences of its
dismissal:
"Under the grave and exceptional circumstances of this case, and given the
paramount interest of Paraguay in the life and liberty of its nationals,
provisional measures are urgently needed to protect the life of Paraguay's
national and the ability of this Court to order the relief to which Paraguay
is entitled: restitution in kind. Without the provisional measures
requested, the United States will execute Mr. Breard before this Court can
consider the merits of Paraguay's claims, and Paraguay will be forever
deprived of the opportunity to have the status quo ante restored in the
event of a judgment in its favour";
9. Whereas Paraguay asks that, pending final judgment in this case, the
Court indicate:
"(a) That the Government of the United States take the measures necessary to
ensure that Mr. Breard not be executed pending the disposition of this case;
(b) That the Government of the United States report to the Court [p 252] the
actions it has taken in pursuance of subparagraph (a) immediately above and
the results of those actions; and
(c) That the Government of the United States ensure that no action is taken
that might prejudice the rights of the Republic of Paraguay with respect to
any decision this Court may render on the merits of the case";
and whereas it asks the Court moreover to consider its request as a matter
of the greatest urgency "in view of the extreme gravity and immediacy of the
threat that the authorities . . . will execute a Paraguayan citizen";
10. Whereas, on 3 April 1998, the Ambassador of Paraguay to the Netherlands
addressed a letter to the President of the Court requesting the Court to fix
an early date for a hearing on his Government's request for provisional
measures, asking the Member of the Court who, in accordance with the
provisions of Article 13, paragraph 1, and Article 32, paragraph 1, of the
Rules of Court, would exercise the functions of President in the case to
"call upon the United States of America to ensure that Mr. Breard is not put
to death before the Court's ruling on Paraguay's request for provisional
measures"; and indicating that he had been appointed as Agent of Paraguay
for the purposes of the case;
11. Whereas, on 3 April 1998, the date on which the Application and the
request for provisional measures were filed in the Registry, the Registrar
advised the Government of the United States of the filing of those
documents, communicated the text of them to that Government by facsimile and
sent it a certified copy of the Application, in accordance with Article 40,
paragraph 2, of the Statute of the Court and Article 38, paragraph 4, of the
Rules of Court, together with a certified copy of the request for the
indication of provisional measures, in accordance with Article 73, paragraph
2, of the Rules of Court; and whereas the Registrar also sent the Government
of the United States a copy of the letter addressed that day to the
President of the Court by the Agent of Paraguay;
12. Whereas, by identical letters dated 3 April 1998, the Vice-President of
the Court addressed both Parties in the following terms:
"Exercising the functions of the presidency in terms of Articles 13 and 32
of the Rules of Court, and acting in conformity with Article 74, paragraph
4, of the said Rules, I hereby draw the attention of both Parties to the
need to act in such a way as to enable any Order the Court will make on the
request for provisional measures to have its appropriate effects";
and whereas, at a meeting held the same day with the representatives of both
Parties, he advised them that the Court would hold public hearings on 7
April 1998 at 10 a.m., in order to afford the Parties the opportunity of
presenting their observations on the request for provisional measures; [p
253]
13. Whereas, by a letter dated 5 April 1998, received in the Registry on 6
April 1998, the Ambassador of the United States to the Netherlands informed
the Court of the appointment of an Agent and a Co-Agent of his Government
for the case;
14. Whereas, pending the notification under Article 40, paragraph 3, of the
Statute of the Court and Article 42 of the Rules of Court, by transmission
of the printed text, in two languages, of the Application to the Members of
the United Nations and to other States entitled to appear before the Court,
the Registrar, on 6 April 1998, informed those States of the filing of the
Application and of its subject-matter, and of the request for the indication
of provisional measures;
15. Whereas, on 6 April 1998, the Registrar, in accordance with Article 43
of the Rules of Court, addressed the notification provided for in Article
63, paragraph 1, of the Statute to the States, other than the Parties to the
dispute, which on the basis of information supplied by the Secretary-General
of the United Nations as depositary appeared to be parties to the Vienna
Convention and to the Optional Protocol;
16. Whereas, at the public hearings held on 7 April 1998, in accordance with
Article 74, paragraph 3, of the Rules of Court, oral statements on the
request for the indication of provisional measures were presented by the
Parties:
On behalf of Paraguay: H. E. Mr. Manuel María Cáceres,
Mr. Donald Francis Donovan,
Mr. Barton Legum,
Dr. Jose Emilio Gorostiaga;
On behalf of the United States: by Mr. David R. Andrews,
Ms Catherine Brown,
Mr. John R. Crook,
Mr. Michael J. Matheson;
and whereas at the hearings a question was put by a Member of the Court, to
which a reply was given orally and in writing;
***
17. Whereas, at the hearings, Paraguay reiterated the line of argument set
forth in its Application and its request for the indication of provisional
measures;
18. Whereas at the hearing, the United States argued that Mr. Breard's guilt
was well established, and pointed out that the accused had admitted his
guilt, which Paraguay did not dispute; whereas it recognized that Mr. Breard
had not been informed, at the time of his arrest and trial, of his rights
under Article 36, subparagraph 1 (b), of the Vienna Convention, and
indicated to the Court that this omission was not deliberate; whereas it
nonetheless maintained that the person concerned had had all neces-[p
254]sary legal assistance, that he understood English well and that the
assistance of consular officers would not have changed the outcome of the
proceedings brought against him in any way; whereas, referring to State
practice in these matters, it stated that the notification provided for by
Article 36, subparagraph 1 (b), of the Vienna Convention is unevenly made,
and that when a claim is made for failure to notify, the only consequence is
that apologies are presented by the government responsible; and whereas it
submitted that the automatic invalidation of the proceedings initiated and
the return to the status quo ante as penalties for the failure to notify not
only find no support in State practice, but would be unworkable;
19. Whereas the United States also indicated that the State Department had
done everything in its power to help the Government of Paraguay as soon as
it was informed of the situation in 1996; and whereas it stated that when,
on 30 March 1998, Paraguay advised the Government of the United States of
its intention to bring proceedings before the Court if the United States
Government did not take steps to initiate consultation and to obtain a stay
of execution for Mr. Breard, the Government of the United States had
emphasized inter alia that a stay of execution depended exclusively on the
United States Supreme Court and the Governor of Virginia;
20. Whereas the United States furthermore maintained that Paraguay's
contention that the invalidation of the sentence of a person who had not
been notified pursuant to Article 36, subparagraph 1 (b), of the Vienna
Convention could be required under that instrument, has no foundation in the
relevant provisions, their travaux preparatoires or the practice of States,
and that, in the event, Mr. Breard has not been prejudiced by the absence of
notification; and whereas it pointed out that provisional measures should
not be indicated where it appears that the Applicant's argument will not
enable it to be successful on the merits;
21. Whereas the United States also stated that, when the Court indicates
provisional measures under Article 41 of its Statute, it must take the
rights of each of the Parties into consideration and ensure that it
maintains a fair balance in protecting those rights; whereas that would not
be the case if it acceded to Paraguay's request in these proceedings; and
whereas the measures requested by Paraguay would prejudice the merits of the
case;
22. Whereas the United States finally alleged that the indication of the
provisional measures requested by Paraguay would be contrary to the
interests of the States parties to the Vienna Convention and to those of the
international community as a whole as well as to those of the Court, and
would in particular be such as seriously to disrupt the criminal justice
systems of the States parties to the Convention, given the risk of
proliferation of cases; and whereas it stated in that connection that States
have an overriding interest in avoiding external judicial intervention [p
255] which would interfere with the execution of a sentence passed at the
end of an orderly process meeting the relevant human rights standards;
***
23. Whereas on a request for the indication of provisional measures the
Court need not, before deciding whether or not to indicate them, finally
satisfy itself that it has jurisdiction on the merits of the case, but
whereas it may not indicate them unless the provisions invoked by the
Applicant appear, prima facie, to afford a basis on which the jurisdiction
of the Court might be founded;
24. Whereas Article I of the Optional Protocol, which Paraguay invokes as
the basis of jurisdiction of the Court in this case, is worded as follows:
"Disputes arising out of the interpretation or application of the Convention
shall lie within the compulsory jurisdiction of the International Court of
Justice and may accordingly be brought before the Court by an application
made by any party to the dispute being a Party to the present Protocol";
25. Whereas, according to the information communicated by the
Secretary-General of the United Nations as depositary, Paraguay and the
United States are parties to the Vienna Convention and to the Optional
Protocol, in each case without reservation;
26. Whereas Articles II and III of the aforementioned Protocol provide that
within a period of two months after one party has notified the other of the
existence of a dispute, the parties may agree to resort not to the
International Court of Justice but to an arbitration tribunal or
alternatively first to conciliation; but whereas these Articles
"when read in conjunction with those of Article I and with the Preamble to
the Protocols, make it crystal clear that they are not to be understood as
laying down a precondition of the applicability of the precise and
categorical provision contained in Article I establishing the compulsory
jurisdiction of the Court in respect of disputes arising out of the
interpretation or application of the Vienna Convention . . ." (United States
Diplomatic and Consular Staff in Tehran, (United States of America v. Iran),
Judgment, 24 May 1980, I.C.J. Reports 1980, pp. 25-26);
27. Whereas, in its Application and at the hearings, Paraguay stated that
the issues in dispute between itself and the United States concern Articles
5 and 36 of the Vienna Convention and fall within the compulsory
jurisdiction of the Court under Article I of the Optional Protocol; and
whereas it concluded from this that the Court has the jurisdiction necessary
to indicate the provisional measures requested; [p 256]
28. Whereas at the hearing, the United States contended, for its part, that
Paraguay had not established that the Court had jurisdiction in these
proceedings, even prima facie; whereas it argued that there is no dispute
between the Parties as to the interpretation of Article 36, subparagraph 1
(b), of the Vienna Convention and nor is there a dispute as to its
application, since the United States recognizes that the notification
provided for was not carried out; whereas the United States maintained that
the objections raised by Paraguay to the proceedings brought against its
national do not constitute a dispute concerning the interpretation or
application of the Vienna Convention; and whereas it added that there was no
entitlement to restitutio in integrum under the terms of that Convention;
29. Whereas the United States moreover indicated to the Court that it had
expressed its regret to Paraguay for the failure to notify Mr. Breard of his
right to consular access, engaged in consultations with Paraguay on the
matter and taken steps to ensure future compliance with its obligations
under the Vienna Convention at both the federal and state level;
30. Whereas Paraguay asserts that it is nevertheless entitled to restitutio
in integrum, that any criminal liability currently imposed on Mr. Breard
should accordingly be recognized as void by the legal authorities of the
United States and that the status quo ante should be restored in that Mr.
Breard should have the benefit of the provisions of the Vienna Convention in
any renewed proceedings brought against him, no objection to his continued
detention meanwhile being made by Paraguay; whereas however the United
States believes that these measures are not required by the Vienna
Convention, would contravene the understanding underlying the adoption of
Article 36 as well as the uniform practice of States, and would put this
Court in a position of acting as a universal supreme court of criminal
appeals;
31. Whereas 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; and whereas this is a dispute arising
out of the application of the Convention within the meaning of Article I of
the Optional Protocol concerning the Compulsory Settlement of Disputes of 24
April 1963;
32. Whereas the United States claimed nevertheless that prima facie there is
no jurisdiction for the Court in this case as Paraguay has no legally
cognizable claim to the relief it seeks nor any prospect ultimately of
prevailing on the merits, because no prejudice to Mr. Breard has occurred;
33. Whereas the existence of the relief sought by Paraguay under the
Convention can only be determined at the stage of the merits; and [p 257]
whereas the issue of whether any such remedy is dependent upon evidence of
prejudice to the accused in his trial and sentence can equally only be
decided upon at the merits;
34. Whereas the Court finds that, prima facie, it has jurisdiction under
Article I of the aforesaid Optional Protocol to decide the dispute between
Paraguay and the United States;
**
35. Whereas the power of the Court to indicate provisional measures under
Article 41 of its Statute is intended to preserve the respective rights of
the parties pending its decision, and presupposes that irreparable prejudice
shall not be caused to rights which are the subject of a dispute in judicial
proceedings; whereas it follows that the Court must be concerned to preserve
by such measures the rights which may subsequently be adjudged by the Court
to belong either to the Applicant, or to the Respondent; and whereas such
measures are only justified if there is urgency;
36. Whereas the Court will not order interim measures in the absence of
"irreparable prejudice . . . to rights which are the subject of dispute . .
." (Nuclear Tests (Australia v. France), Interim Protection, Order of 22
June 1973, I.C.J. Reports 1973, p. 103; United States Diplomatic and
Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979,
I.C.J. Reports 1979, p. 19, para. 36; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8
April 1993, I.C.J. Reports 1993, p. 19, para. 34);
37. Whereas the execution of Mr. Breard is ordered for 14 April 1998; and
whereas such an execution would render it impossible for the Court to order
the relief that Paraguay seeks and thus cause irreparable harm to the rights
it claims;
38. Whereas the issues before the Court in this case do not concern the
entitlement of the federal states within the United States to resort to the
death penalty for the most heinous crimes; and whereas, further, the
function of this Court is to resolve international legal disputes between
States, inter alia when they arise out of the interpretation or application
of international conventions, and not to act as a court of criminal appeal;
***
39. Whereas, in the light of the aforementioned considerations, the Court
finds that the circumstances require it to indicate, as a matter of urgency,
provisional measures in accordance with Article 41 of its Statute;
40. Whereas measures indicated by the Court for a stay of execution would
necessarily be provisional in nature and would not in any way pre-[p
258]judge findings the Court might make on the merits; and whereas the
measures indicated would preserve the respective rights of Paraguay and of
the United States; and whereas it is appropriate that the Court, with the
co-operation of the Parties, ensure that any decision on the merits be
reached with all possible expedition;
***
41. For these reasons,
THE COURT
Unanimously,
I. Indicates the following provisional measures:
The United States should take all measures at its disposal to ensure that
Angel Francisco Breard is not executed pending the final decision in these
proceedings, and should inform the Court of all the measures which it has
taken in implementation of this Order;
II. Decides, that, until the Court has given its final decision, it shall
remain seised of the matters which form the subject-matter of this Order.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this ninth day of April, one thousand nine hundred
and ninety-eight, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Republic of Paraguay and the Government of the United States of America,
respectively.
(Signed) Christopher G. WEERAMANTRY,
Vice-President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
President SCHWEBEL and Judges ODA and KOROMA append declarations to the
Order of the Court.
(Initialled) C.G.W.
(Initialled) E. V.O.
[p 259]
DECLARATION OF PRESIDENT SCHWEBEL
I have voted for the Order, but with disquiet. The sensitive issues it poses
have been hastily, if ably, argued. The evidence introduced is bare. The
Court's consideration of the issues of law and fact, in the circumstances
imposed upon it, has been summary. The United States maintains that no State
has ever before claimed as Paraguay now does that, because of lack of
consular access under the Vienna Convention on Consular Relations, the
results of a trial, conviction, and appeal should be voided. Not only has
the United States apologized to Paraguay for the unintentional failure of
notification to Paraguay's consul of the arrest and trial of the accused,
but it has taken substantial steps to strengthen what appears to be a
practice in the United States of variable compliance with the obligations
imposed upon it by the Vienna Convention.
All this said, I have voted for the Order indicating provisional measures
suggested pursuant to Article 41 of the Statute of the Court. Those measures
ought to be taken to preserve the rights of Paraguay in a situation of
incontestable urgency.
I have so voted essentially for these reasons. 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. An apology
and Federal provision for avoidance of future such lapses does not assist
the accused, who Paraguay alleges was or may have been prejudiced by lack of
consular access, a question which is for the merits. It is of obvious
importance to the maintenance and development of a rule of law among States
that the obligations imposed by treaties be complied with and that, where
they are not, reparation be required. The mutuality of interest of States in
the effective observance of the obligations of the Vienna Convention on
Consular Relations is the greater in the intermixed global community of
today and tomorrow (and the citizens of no State have a higher interest in
the observance of those obligations than the peripatetic citizens of the
United States). In my view, these considerations outweigh the serious
difficulties which this Order imposes on the authorities of the United
States and Virginia.
(Signed) Stephen M. SCHWEBEL.
[p 260]
DECLARATION OF JUDGE ODA
1. I voted in favour of the Court's Order with great hesitation as I
believed and I still believe that the request for the indication of
provisional measures of protection submitted by Paraguay to the Court should
have been dismissed. However, in the limited time — one or two days — given
to the Court to deal with this matter, I have found it impossible to develop
my points sufficiently to persuade my colleagues to alter their position.
2. First of all, I would like to express some of my thoughts in connection
with this request.
I can, on humanitarian grounds, understand the plight of Mr. Breard and
recognize that owing to the fact that Paraguay filed this request on 3 April
1998, his fate now, albeit unreasonably, lies in the hands of the Court.
I would like to add, however, that, if Mr. Breard's rights as they relate to
humanitarian issues are to be respected then, in parallel, the matter of the
rights of victims of violent crime (a point which has often been overlooked)
should be taken into consideration. It should also be noted that since his
arrest, Mr. Breard has been treated fairly in all legal proceedings within
the American judicial system governed by the rule of law.
The Court cannot act as a court of criminal appeal and cannot be petitioned
for writs of habeas corpus. The Court does not have jurisdiction to decide
matters relating to capital punishment and its execution, and should not
intervene in such matters.
**
3. As stated earlier, Paraguay's request was presented to the Court on 3
April 1998 in connection with and at the same time as its Application
instituting proceedings against the United States for violations of the 1963
Vienna Convention on Consular Relations. Paraguay's Application was
unilaterally submitted to the Court on the basis of the Optional Protocol. I
very much doubt that, on the date of filing of the Application and the
request, there was any "dispute[s] arising out of the interpretation or
application of the [Vienna] Convention" (Optional Protocol, Article I).
If there was any dispute between Paraguay and the United States concerning
the interpretation or application of the Vienna Convention, it could have
been that the United States was presumed to have violated the [p
261]Convention at the time of the arrest of Mr. Breard in 1992, as the
United States did not inform the Paraguayan consul of that event.
This issue was raised by Paraguay when it became aware of Mr. Breard's
situation. In 1996, negotiations took place between Paraguay and the United
States concerning the consular function provided for under the Convention.
In July 1997, the United States proceeded to remedy the violation by sending
a letter to the Government of Paraguay apologizing for its failure to inform
the consul of the events concerning Mr. Breard and giving an assurance that
this failure would not be repeated in future. In my view, the United States
was thus released from its responsibility for violation of the Vienna
Convention.
From that time, the question of violation of the Vienna Convention, which
may have led to a dispute concerning its application and interpretation, no
longer existed. However, this question was raised once more on 3 April 1998,
the date on which Paraguay's Application was filed.
4. What did Paraguay ask the Court to decide in its Application of 3 April
1998? Paraguay asked mainly for a decision relating to Mr. Breard's personal
situation, namely, his pending execution by the competent authorities of the
State of Virginia.
Paraguay requested restitutio in integrum. However, if consular contact had
occurred at the time of Mr. Breard's arrest or detention, the judicial
procedure in the United States domestic courts relating to his case would
have been no different. This point was clarified in the course of the oral
pleadings.
**
5. I would like to turn to some general issues relating to provisional
measures. First, as a general rule, provisional measures are granted in
order to preserve rights exposed to imminent breach which is irreparable and
these rights must be those to be considered at the merits stage of the case,
and must constitute the subject-matter of the Application or be directly
related to it. In this case, however, there is no question of such rights
(of States parties), as provided for by the Vienna Convention, being exposed
to an imminent irreparable breach.
6. Secondly, in order that provisional measures may be granted by the Court,
the Court has to have, at the very least, prima facie jurisdiction to deal
with the issues concerning the rights of the States parties. However I
believe that, as regards the present request for provisional measures, the
Court does not even have prima facie jurisdiction to handle this matter.
7. Thirdly, if the request in the present case had not been granted, the
Application itself would have become meaningless. If that had been the case,
then I would have had no hesitation in pointing out that the request for
provisional measures should not be used to ensure that the main [p 262]
Application continue. In addition the request for provisional measures
should not be used by applicants for the purpose of obtaining interim
judgments that would affirm their own rights and predetermine the main case.
8. I have thus explained why I formed the view that, given the fundamental
nature of provisional measures, those measures should not have been
indicated upon Paraguay's request.
I reiterate, however, that I voted in favour of the Order, for humanitarian
reasons, and in view of the fact that, if the execution were to be carried
out on 14 April 1998, whatever findings the Court might have reached might
be without object.
(Signed) Shigeru ODA.
[p 263]
DECLARATION OF JUDGE KOROMA
My decision to vote in favour of the Order granting the interim measures of
protection in this matter was reached only after careful consideration and
in the light of the urgency and exceptional circumstances of this case. Torn
as I was between the need to observe the requirements for granting
provisional measures of protection under Article 41 of the Statute of the
Court, thereby ensuring that whatever decision the Court might reach should
not be devoid of object, and the need for the Court to comply with its
jurisdiction to settle disputes between States which, in my view, includes
respect for the sovereignty of a State in relation to its criminal justice
system.
It was, therefore, both propitious and appropriate for the Court to bear in
mind its mission which is to decide disputes between States, and not to act
as a universal supreme court of criminal appeal. On the other hand, it is
equally true that the Court's function is to decide disputes between States
which are submitted to it in accordance with international law, applying
international conventions, etc. The Order, in my judgement, complies with
these requirements.
Paraguay's Application, filed on 3 April 1998 instituting proceedings
against the United States for purported violations of the 1963 Vienna
Convention on Consular Relations, inter alia, requested the Court to grant
provisional measures of protection under Article 41 of the Statute so as to
protect its rights and the right of one of its nationals who had been
convicted of a capital offence committed in the United States and sentenced
to death.
The purpose of a request for provisional measures is to preserve as well as
to safeguard the rights of the parties that are in dispute, especially when
such rights or subject-matter of the dispute could be irretrievably or
irreparably destroyed thereby rendering the Court's decision ineffective or
without object. It is in the light of such circumstances that the Court has
found it necessary to indicate interim measures of protection with the aim
of preserving the respective rights of either party to the dispute. But
prior to this, the applicant State has the burden of indicating that prima
facie, the Court has jurisdiction.
When the facts presented were considered by the Court in the light of the
Vienna Convention on Consular Relations, in particular in relation to its
Articles 5 and 36, and Article I of the Optional Protocol concerning the
Compulsory Settlement of Disputes of 24 April 1963, the Court reached the
correct conclusion that a dispute existed and that its jurisdiction had been
established prima facie.[p 264]
In my view, in granting this Order, the Court met the requirements set out
in Article 41 of the Statute, whilst at the same time the Order preserves
the respective rights of either Party — Paraguay and the United States. The
Order called for the suspension of the sentence of execution of Mr. Breard
on 14 April 1998, thereby preserving his right to life pending the final
decision of the Court on this matter, and also recognized the United States'
criminal sovereignty in matters such as charging, trying, convicting and
sentencing suspects as appropriate, within the United States or its
jurisdiction. I concur with this finding.
In reaching this decision, the Court has also acted with the necessary
judicial prudence in considering a request for interim measures of
protection, in that it should not deal with issues which are not immediately
relevant for the protection of the respective rights of either party or
which are for the merits. It also thus, once again confirmed its consistent
jurisprudence that a provisional measure of protection should only be
granted where it is indispensable and necessary for the preservation of the
respective rights of either party and only with circumspection. It was in
the light of the foregoing consideration, that I joined the Court in
granting the request under Article 41 of the Statute.
(Signed) Abdul G. KOROMA. |
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