27 June 2001

General List No. 104

international Court of Justice

LaGrand

Germany

v. 

United States

Judgment

[p.466]

The Court,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 2 March 1999 the Federal Republic of Germany (hereinafter referred to as "Germany") filed in the Registry of the Court an Application instituting proceedings against the United States of America (hereinafter referred to as the "United States") for "violations of the Vienna Convention on Consular Relations [of 24 April 1963]" (hereinafter referred to as the "Vienna Convention").

In its Application, Germany based 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 (hereinafter referred to as the "Optional Protocol").

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was forthwith communicated to the Government of the United States; and, in accordance with paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.

3. On 2 March 1999, the day on which the Application was filed, the German Government also filed in the Registry of the Court a request for the indication of provisional measures based on Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of Court.

By a letter dated 2 March 1999, the Vice-President of the Court, acting President in the case, addressed the Government of the United States 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 [the] Government [of the United States] 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."

By an Order of 3 March 1999, the Court indicated certain provisional measures (see paragraph 32 below).

4. In accordance with Article 43 of the Rules of Court, the Registrar sent the notification referred to in Article 63, paragraph 1, of the Statute to all States parties to the Vienna Convention or to that Convention and the Optional Protocol.

5. By an Order of 5 March 1999, the Court, taking account of the views of the Parties, fixed 16 September 1999 and 27 March 2000, respectively, as the time-limits for the filing of a Memorial by Germany and of a Counter-Memorial by the United States.

The Memorial and Counter-Memorial were duly filed within the time-limits so prescribed.

6. By letter of 26 October 2000, the Agent of Germany expressed his Government's desire to produce five new documents in accordance with Article 56 of the Rules.

By letter of 6 November 2000, the Agent of the United States informed the Court that his Government consented to the production of the first and second documents, but not to that of the third, fourth and fifth documents. [p 471]

The Court decided, pursuant to Article 56, paragraph 2, of the Rules, to authorize the production of the latter group of documents by Germany, it being understood that the United States would have the opportunity, in accordance with paragraph 3 of that Article, to comment subsequently thereon and to submit documents in support of those comments. That decision was duly communicated to the Parties by letters from the Registrar dated 9 November 2000.

7. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made available to the public at the opening of the oral proceedings.

8. Public hearings were held from 13 to 17 November 2000, at which the Court heard the oral arguments and replies of:

For Germany :Mr. Gerhard Westdickenberg,
Mr. Bruno Simma,
Mr. Daniel Khan,
Mr. Hans-Peter Kaul,
Mr. Andreas Paulus,
Mr. Donald Francis Donovan,
Mr. Pierre-Marie Dupuy.


For the United States: Mr. James H. Thessin,
The Honourable Janet Napolitano,
Mr. Theodor Meron,
Ms Catherine W. Brown,
Mr. D. Stephen Mathias,
Mr. Stefan Trechsel,
Mr. Michael J. Matheson.


9. At the hearings, Members of the Court put questions to Germany, to which replies were given in writing, in accordance with Article 61, paragraph 4, of the Rules of Court.

In addition, the United States, acting within the time-limit accorded it for this purpose, commented on the new documents filed by Germany on 26 October 2000 (see paragraph 6 above) and produced documents in support of those comments.

*

10. In its Application, Germany formulated the decision requested in the following terms:


"Accordingly the Federal Republic of Germany asks the Court to adjudge and declare

(1) that the United States, in arresting, detaining, trying, convicting and sentencing Karl and Walter LaGrand, as described in the preceding statement of facts, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, as provided by Articles 5 and 36 of the Vienna Convention,

(2) that Germany is therefore entitled to reparation,

(3) that the United States is under an international legal obligation not to [p 472] apply the doctrine of 'procedural default' or any other doctrine of national 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 obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against any other German national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or 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) the criminal liability imposed on Karl and Walter LaGrand in violation of international legal obligations is void, and should be recognized as void by the legal authorities of the United States;

(2) the United States should provide reparation, in the form of compensation and satisfaction, for the execution of Karl LaGrand on 24 February 1999;

(3) the United States should restore the status quo ante in the case of Walter LaGrand, that is re-establish the situation that existed before the detention of, proceedings against, and conviction and sentencing of that German national in violation of the United States' international legal obligation took place; and

(4) the United States should provide Germany a guarantee of the non-repetition of the illegal acts."

11. In the course of the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Germany,

in the Memorial:

"Having regard to the facts and points of law set forth in the present Memorial, and without prejudice to such elements of fact and law and to such evidence as may be submitted at a later time, and likewise without prejudice to the right to supplement and amend the present Submissions, the Federal Republic of Germany respectfully requests the Court to adjudge and declare

(1) that the United States, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36 subparagraph 1 (b) of the Vienna Convention on Consular Relations, and by depriving Germany of the possibility of rendering consular assistance, which ultimately resulted in the execution of Karl and Walter LaGrand, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, under Articles 5 and 36 paragraph 1 of the said Convention;

(2) that the United States, by applying rules of its domestic law, in par-[p 473]ticular the doctrine of procedural default, which barred Karl and Walter LaGrand from raising their claims under the Vienna Convention on Consular Relations, and by ultimately executing them, violated its international legal obligation to Germany under Article 36 paragraph 2 of the Vienna Convention to give full effect to the purposes for which the rights accorded under Article 36 of the said Convention are intended;

(3) that the United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international legal obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending;

and, pursuant to the foregoing international legal obligations,

(4) that the United States shall provide Germany a guarantee that it will not repeat its illegal acts and ensure that, in any future cases of detention of or criminal proceedings against German nationals, United States domestic law and practice will not constitute a bar to the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations."


On behalf of the Government of the United States,

in the Counter-Memorial:

"Accordingly, on the basis of the facts and arguments set forth in this Counter-Memorial, and without prejudice to the right further to amend and supplement these submissions in the future, the United States asks the Court to adjudge and declare that:

(1) There was a breach of the United States obligation to Germany under Article 36 (1) (b) of the Vienna Convention on Consular Relations, in that the competent authorities of the United States did not promptly give to Karl and Walter LaGrand the notification required by that Article, and that the United States has apologized to Germany for this breach, and is taking substantial measures aimed at preventing any recurrence; and

(2) That all other claims and submissions of the Federal Republic of Germany are dismissed."

12. At the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of Germany,

"The Federal Republic of Germany respectfully requests the Court to adjudge and declare

(1) that the United States, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, subparagraph 1 (b), of the Vienna Convention on Consular Relations, and by depriving Germany of the possibility of rendering con-[p 474]sular assistance, which ultimately resulted in the execution of Karl and Walter LaGrand, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, under Articles 5 and 36, paragraph 1, of the said Convention;

(2) that the United States, by applying rules of its domestic law, in particular the doctrine of procedural default, which barred Karl and Walter LaGrand from raising their claims under the Vienna Convention on Consular Relations, and by ultimately executing them, violated its international legal obligation to Germany under Article 36, paragraph 2, of the Vienna Convention to give full effect to the purposes for which the rights accorded under Article 36 of the said Convention are intended;

(3) that the United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international legal obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject-matter of a dispute while judicial proceedings are pending;

and, pursuant to the foregoing international legal obligations,

(4) that the United States shall provide Germany an assurance that it will not repeat its unlawful acts and that, in any future cases of detention of or criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations. In particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by a violation of the rights under Article 36."

On behalf of the Government of the United States,

"The United States of America respectfully requests the Court to adjudge and declare that:

(1) There was a breach of the United States obligation to Germany under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, in that the competent authorities of the United States did not promptly give to Karl and Walter LaGrand the notification required by that Article, and that the United States has apologized to Germany for this breach, and is taking substantial measures aimed at preventing any recurrence; and

(2) All other claims and submissions of the Federal Republic of Germany are dismissed."

***

13. Walter LaGrand and Karl LaGrand were born in Germany in [p 475] 1962 and 1963 respectively, and were German nationals. In 1967, when they were still young children, they moved with their mother to take up permanent residence in the United States. They returned to Germany only once, for a period of about six months in 1974. Although they lived in the United States for most of their lives, and became the adoptive children of a United States national, they remained at all times German nationals, and never acquired the nationality of the United States. However, the United States has emphasized that both had the demeanour and speech of Americans rather than Germans, that neither was known to have spoken German, and that they appeared in all respects to be native citizens of the United States.

14. On 7 January 1982, Karl LaGrand and Walter LaGrand were arrested in the United States by law enforcement officers on suspicion of having been involved earlier the same day in an attempted armed bank robbery in Marana, Arizona, in the course of which the bank manager was murdered and another bank employee seriously injured. They were subsequently tried before the Superior Court of Pima County, Arizona, which, on 17 February 1984, convicted them both of murder in the first degree, attempted murder in the first degree, attempted armed robbery and two counts of kidnapping. On 14 December 1984, each was sentenced to death for first degree murder and to concurrent sentences of imprisonment for the other charges.

15. At all material times, Germany as well as the United States were parties to both the Vienna Convention on Consular Relations and the Optional Protocol to that Convention. Article 36, paragraph 1 (b), of the Vienna Convention provides that:

"if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph."

It is not disputed that at the time the LaGrands were convicted and sentenced, the competent United States authorities had failed to provide the LaGrands with the information required by this provision of the Vienna Convention, and had not informed the relevant German consular post of the LaGrands' arrest. The United States concedes that the competent authorities failed to do so, even after becoming aware that the LaGrands were German nationals and not United States nationals, and admits that [p 476] the United States has therefore violated its obligations under this provision of the Vienna Convention.

16. However, there is some dispute between the Parties as to the time at which the competent authorities in the United States became aware of the fact that the LaGrands were German nationals. Germany argues that the authorities of Arizona were aware of this from the very beginning, and in particular that probation officers knew by April 1982. The United States argues that at the time of their arrest, neither of the LaGrands identified himself to the arresting authorities as a German national, and that Walter LaGrand affirmatively stated that he was a United States citizen. The United States position is that its "competent authorities" for the purposes of Article 36, paragraph 1 (b), of the Vienna Convention were the arresting and detaining authorities, and that these became aware of the German nationality of the LaGrands by late 1984, and possibly by mid-1983 or earlier, but in any event not at the time of their arrest in 1982. Although other authorities, such as immigration authorities or probation officers, may have known this even earlier, the United States argues that these were not "competent authorities" for the purposes of this provision of the Vienna Convention. The United States has also suggested that at the time of their arrest, the LaGrands may themselves have been unaware that they were not nationals of the United States.

17. At their trial, the LaGrands were represented by counsel assigned by the court, as they were unable to afford legal counsel of their own choice. Their counsel at trial did not raise the issue of non-compliance with the Vienna Convention, and did not themselves contact the German consular authorities.

18. The convictions and sentences pronounced by the Superior Court of Pima County, Arizona, were subsequently challenged by the LaGrands in three principal sets of legal proceedings.

19. The first set of proceedings consisted of appeals against the convictions and sentences to the Supreme Court of Arizona, which were rejected by that court on 30 January 1987. The United States Supreme Court, in the exercise of its discretion, denied applications by the LaGrands for further review of these judgments on 5 October 1987.

20. The second set of proceedings involved petitions by the LaGrands for post-conviction relief, which were denied by an Arizona state court in 1989. Review of this decision was denied by the Supreme Court of Arizona in 1990, and by the United States Supreme Court in 1991.

21. At the time of these two sets of proceedings, the LaGrands had still not been informed by the competent United States authorities of their rights under Article 36, paragraph 1 (b), of the Vienna Convention, and the German consular post had [p 477] still not been informed of their arrest. The issue of the lack of consular notification, which had not been raised at trial, was also not raised in these two sets of proceedings.

22. The relevant German consular post was only made aware of the case in June 1992 by the LaGrands themselves, who had learnt of their rights from other sources, and not from the Arizona authorities. In December 1992, and on a number of subsequent occasions between then and February 1999, an official of the Consulate-General of Germany in Los Angeles visited the LaGrands in prison. Germany claims that it subsequently helped the LaGrands' attorneys to investigate the LaGrands' childhood in Germany, and to raise the issue of the omission of consular advice in further proceedings before the federal courts.

23. The LaGrands commenced a third set of legal proceedings by filing applications for writs of habeas corpus in the United States District Court for the District of Arizona, seeking to have their convictions - or at least their death sentences -- set aside. In these proceedings they raised a number of different claims, which were rejected by that court in orders dated 24 January 1995 and 16 February 1995. One of these claims was that the United States authorities had failed to notify the German consulate of their arrest, as required by the Vienna Convention. This claim was rejected on the basis of the "procedural default" rule. According to the United States, this rule:

"is a federal rule that, before a state criminal defendant can obtain relief in federal court, the claim must be presented to a state court. If a state defendant attempts to raise a new issue in a federal habeas corpus proceeding, the defendant can only do so by showing cause and prejudice. Cause is an external impediment that prevents a defendant from raising a claim and prejudice must be obvious on its face. One important purpose of this rule is to ensure that the state courts have an opportunity to address issues going to the validity of state convictions before the federal courts intervene."

The United States District Court held that the LaGrands had not shown an objective external factor that prevented them from raising the issue of the lack of consular notification earlier. On 16 January 1998, this judgment was affirmed on appeal by the United States Court of Appeals, [p 478] Ninth Circuit, which also held that the LaGrands' claim relating to the Vienna Convention was "procedurally defaulted", as it had not been raised in any of the earlier proceedings in state courts. On 2 November 1998, the United States Supreme Court denied further review of this judgment.

24. On 21 December 1998, the LaGrands were formally notified by the United States authorities of their right to consular access.

25. On 15 January 1999, the Supreme Court of Arizona decided that Karl LaGrand was to be executed on 24 February 1999, and that Walter LaGrand was to be executed on 3 March 1999. Germany claims that the German Consulate learned of these dates on 19 January 1999.

26. In January and early February 1999, various interventions were made by Germany seeking to prevent the execution of the LaGrands. In particular, the German Foreign Minister and German Minister of Justice wrote to their respective United States counterparts on 27 January 1999; the German Foreign Minister wrote to the Governor of Arizona on the same day; the German Chancellor wrote to the President of the United States and to the Governor of Arizona on 2 February 1999; and the President of the Federal Republic of Germany wrote to the President of the United States on 5 February 1999. These letters referred to German opposition to capital punishment generally, but did not raise the issue of the absence of consular notification in the case of the LaGrands. The latter issue was, however, raised in a further letter, dated 22 February 1999, two days before the scheduled date of execution of Karl LaGrand, from the German Foreign Minister to the United States Secretary of State.

27. On 23 February 1999, the Arizona Board of Executive Clemency rejected an appeal for clemency by Karl LaGrand. Under the law of Arizona, this meant that the Governor of Arizona was prevented from granting clemency.

28. On the same day, the Arizona Superior Court in Pima County rejected a further petition by Walter LaGrand, based inter alia on the absence of consular notification, on the ground that these claims were "procedurally precluded".

29. On 24 February 1999, certain last-minute federal court proceedings brought by Karl LaGrand ultimately proved to be unsuccessful. In the course of these proceedings the United States Court of Appeals, Ninth Circuit, again held the issue of failure of consular notification to be procedurally defaulted. Karl LaGrand was executed later that same day.

30. On 2 March 1999, the day before the scheduled date of execution of Walter LaGrand, at 7.30 p.m. (The Hague time), Germany filed in the Registry of this Court the Application instituting the present proceedings against the United States (see paragraph 1 above), accompanied by a request for the following provisional measures: [p 479]

"The United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of that Order."


By a letter of the same date, the German Foreign Minister requested the Secretary of State of the United States "to urge [the] Governor [of Arizona] for a suspension of Walter LaGrand's execution pending a ruling by the International Court of Justice".

31. On the same day, the Arizona Board of Executive Clemency met to consider the case of Walter LaGrand. It recommended against a commutation of his death sentence, but recommended that the Governor of Arizona grant a 60-day reprieve having regard to the Application filed by Germany in the International Court of Justice. Nevertheless, the Governor of Arizona decided, "in the interest of justice and with the victims in mind", to allow the execution of Walter LaGrand to go forward as scheduled.

32. In an Order of 3 March 1999, this Court found that the circumstances required it to indicate, as a matter of the greatest urgency and without any other proceedings, provisional measures in accordance with Article 41 of its Statute and with Article 75, paragraph 1, of its Rules (I.C.J. Reports 1999, p. 9, para. 26); it indicated provisional measures in the following terms:

"(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;

(b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona."

33. On the same day, proceedings were brought by Germany in the United States Supreme Court against the United States and the Governor of Arizona, seeking inter alia to enforce compliance with this Court's Order indicating provisional measures. In the course of these proceedings, the United States Solicitor-General as counsel of record took the position, inter alia, that "an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief". On the same date, the United States Supreme Court dismissed the motion by Germany, on the ground of the tardiness of Germany's application and of jurisdictional barriers under United States domestic law.

34. On that same day, proceedings were also instituted in the United [p 480] States Supreme Court by Walter LaGrand. These proceedings were decided against him. Later that day, Walter LaGrand was executed.

***

35. The Court must as a preliminary matter deal with certain issues, which were raised by the Parties in these proceedings, concerning the jurisdiction of the Court in relation to Germany's Application, and the admissibility of its submissions.

**
36. In relation to the jurisdiction of the Court, the United States, without having raised preliminary objections under Article 79 of the Rules of Court, nevertheless presented certain objections thereto.

Germany bases the jurisdiction of the Court on Article I of the Optional Protocol, which reads as follows:

"Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol."

Germany contends that the

"proceedings instituted by [it] in the present case raise questions of the interpretation and application of the Vienna Convention on Consular Relations and of the legal consequences arising from the non-observance on the part of the United States of certain of its provisions vis-à-vis Germany and two of its nationals".

Accordingly, Germany states that all four of its submissions

"are covered by one and the same jurisdictional basis, namely Art. I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963".

*

37. The Court will first examine the question of its jurisdiction with respect to the first submission of Germany. Germany relies on paragraph 1 of Article 36 of the Vienna Convention, which provides:

"With a view to facilitating the exercise of consular functions relating to nationals of the sending State: [p 481]

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action."


38. Germany alleges that the failure of the United States to inform the LaGrand brothers of their right to contact the German authorities "prevented Germany from exercising its rights under Art. 36 (1) (a) and (c) of the Convention" and violated "the various rights conferred upon the sending State vis-a-vis its nationals in prison, custody or detention as provided for in Art. 36 (1) (b) of the Convention". Germany further alleges that by breaching its obligations to inform, the United States also violated individual rights conferred on the detainees by Article 36, paragraph 1 (a), second sentence, and by Article 36, paragraph 1 (b). Germany accordingly claims that it "was injured in the person of its two nationals", a claim which Germany raises "as a matter of diplomatic protection on behalf of Walter and Karl LaGrand".

39. The United States acknowledges that "there was a breach of the U.S. obligation . . . to inform the LaGrand brothers that they could ask that a German consular post be notified of their arrest and detention". It does not deny that this violation of Article 36, paragraph 1 (b), has given rise to a dispute between the two States and recognizes that the Court has [p 482] jurisdiction under the Optional Protocol to hear this dispute in so far as it concerns Germany's own rights.

40. Concerning Germany's claims of violation of Article 36, paragraph 1 (a) and (c), the United States however calls these claims "particularly misplaced" on the grounds that the "underlying conduct complained of is the same" as the claim of the violation of Article 36, paragraph 1 (b). It contends, moreover, that "to the extent that this claim by Germany is based on the general law of diplomatic protection, it is not within the Court's jurisdiction" under the Optional Protocol because it "does not concern the interpretation or application of the Vienna Convention". The United States points to the distinction between jurisdiction over treaties and jurisdiction over customary law and observes that "even if a treaty norm and a customary norm were to have exactly the same content," each would have its "separate applicability". It contests the German assertion that diplomatic protection "enters through the intermediary of the Vienna Convention" and submits:

"the Vienna Convention deals with consular assistance . . . it does not deal with diplomatic protection. Legally, a world of difference exists between the right of the consul to assist an incarcerated national of his country, and the wholly different question whether the State can espouse the claims of its national through diplomatic protection. The former is within the jurisdiction of the Court under the Optional Protocol; the latter is not . . . Germany based its right of diplomatic protection on customary law . . . This case comes before this Court not under Article 36, paragraph 2 of its Statute, but under Article 36, paragraph 1. Is it not obvious . . . that whatever rights Germany has under customary law, they do not fall within the jurisdiction of this Court under the Optional Protocol?"


41. Germany responds that the breach of paragraph 1 (a) and (c) of Article 36 must be distinguished from that of paragraph 1 (b), and that as a result, the Court should not only rule on the latter breach, but also on the violation of paragraph 1 (a) and (c). Germany further asserts "that 'application of the Convention' in the sense of the Optional Protocol very well encompasses the consequences of a violation of individual rights under the Convention, including the espousal of respective claims by the State of nationality".

42. The Court cannot accept the United States objections. The dispute between the Parties as to whether Article 36, paragraph 1 (a) and (c), of the Vienna Convention have been violated in this case in consequence of the breach of paragraph 1 (b) does relate to the interpretation and appli-[p 483] cation of the Convention. This is also true of the dispute as to whether paragraph 1 (b) creates individual rights and whether Germany has standing to assert those rights on behalf of its nationals. These are consequently disputes within the meaning of Article I of the Optional Protocol. Moreover, the Court cannot accept the contention of the United States that Germany's claim based on the individual rights of the LaGrand brothers is beyond the Court's jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany's first submission.

*

43. The United States does not challenge the Court's jurisdiction in regard to Germany's second submission. Nor does it as such address the issue of the jurisdiction of the Court over the third submission concerning the binding nature of the Order of the Court of 3 March 1999 indicating provisional measures. It argues, however, that this submission is inadmissible (see paragraphs 50 and 53-55 below), and that the Court can fully and adequately dispose of the merits of this case without having to rule on the submission.

44. Germany asserts that the Court's Order of 3 March 1999 was intended to "enforce" the rights enjoyed by Germany under the Vienna Convention and "preserve those rights pending its decision on the merits". Germany claims that a dispute as to "whether the United States were obliged to comply and did comply with the Order" necessarily arises out of the interpretation or application of the Convention and thus falls within the jurisdiction of the Court. Germany argues further that questions "relating to the non-compliance with a decision of the Court under Article 41 para. 1 of the Statute, e.g. Provisional Measures, are an integral component of the entire original dispute between the parties". Moreover, Germany contends that its third submission also implicates "in an auxiliary and subsidiary manner . . . the inherent jurisdiction of the Court for claims as closely interrelated with each other as the ones before the Court in the present case".

45. The third submission of Germany concerns issues that arise directly out of the dispute between the Parties before the Court over which the Court has already held that it has jurisdiction (see paragraph 42 above), and which are thus covered by Article I of the Optional Protocol. The Court reaffirms, in this connection, what it said in its Judgment in the [p 484] Fisheries Jurisdiction case, where it declared that in order to consider the dispute in all its aspects, it may also deal with a submission that "is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject-matter of that Application. As such it falls within the scope of the Court's jurisdiction . . ." (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). Where the Court has jurisdiction to decide a case, it also has jurisdiction to deal with submissions requesting it to determine that an order indicating measures which seeks to preserve the rights of the Parties to this dispute has not been complied with.

*

46. The United States objects to the jurisdiction of the Court over the fourth submission in so far as it concerns a request for assurances and guarantees of non-repetition. The United States submits that its "jurisdictional argument [does] not apply to jurisdiction to order cessation of a breach or to order reparation, but is limited to the question of assurances and guarantees . . . [which] are conceptually distinct from reparation". It contends that Germany's fourth submission

"goes beyond any remedy that the Court can or should grant, and should be rejected. The Court's power to decide cases . . . does not extend to the power to order a State to provide any 'guarantee' intended to confer additional legal rights on the Applicant State . . . The United States does not believe that it can be the role of the Court . . . to impose any obligations that are additional to or that differ in character from those to which the United States consented when it ratified the Vienna Convention".

47. Germany counters this argument by asserting that

"a dispute whether or not the violation of a provision of the Vienna Convention gives rise to a certain remedy is a dispute concerning 'the application and interpretation' of the aforesaid Convention, and thus falls within the scope of Art. I of the Optional Protocol".

Germany notes in this regard that the Court, in its Order of 9 April 1998 in the case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), held that

"there exists a dispute as to whether the relief sought by Paraguay is a remedy available under the Vienna Convention, in particular in relation to Articles 5 and 36 thereof; and . . . this is a dispute arising out of the application of the Convention within the meaning of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes of 24 April 1963" (I.C.J. Reports 1998, p. 256, para. 31). [p 485]

Germany asserts also that its fourth submission arises under principles of State responsibility, according to which Germany is entitled to a "whole range of remedies" as a consequence of the particular violations alleged in this case and that these questions of State responsibility "are clearly within the ambit of the Optional Protocol".

48. The Court considers that a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court's jurisdiction. Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation (Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22). Consequently, the Court has jurisdiction in the present case with respect to the fourth submission of Germany.

**

49. The United States has argued that the submissions of Germany are inadmissible on various grounds. The Court will consider these objections in the order presented by the United States.

*
50. The United States objects first to Germany's second, third and fourth submissions. According to the United States, these submissions are inadmissible because Germany seeks to have this Court "play the role of ultimate court of appeal in national criminal proceedings", a role which it is not empowered to perform. The United States maintains that many of Germany's arguments, in particular those regarding the rule of "procedural default", ask the Court "to address and correct . . . asserted violations of U.S. law and errors of judgment by U.S. judges" in criminal proceedings in national courts.

51. Germany denies that it requests the Court to act as an appella e criminal court, or that Germany's requests are in any way aimed at interfering with the administration of justice within the United States judicial system. It maintains that it is merely asking the Court to adjudge and declare that the conduct of the United States was inconsistent with its international legal obligations towards Germany under the Vienna Convention, and to draw from this failure certain legal consequences provided for in the international law of State responsibility.

52. The Court does not agree with these arguments of the United [p 486] States concerning the admissibility of the second, third and fourth German submissions. In the second submission, Germany asks the Court to interpret the scope of Article 36, paragraph 2, of the Vienna Convention; the third submission seeks a finding that the United States violated an Order issued by this Court pursuant to Article 41 of its Statute; and in Germany's fourth submission, the Court is asked to determine the applicable remedies for the alleged violations of the Convention. Although Germany deals extensively with the practice of American courts as it bears on the application of the Convention, all three submissions seek to require the Court to do no more than apply the relevant rules of international law to the issues in dispute between the Parties to this case. The exercise of this function, expressly mandated by Article 38 of its Statute, does not convert this Court into a court of appeal of national criminal proceedings.

*

53. The United States also argues that Germany's third submission is inadmissible because of the manner in which these proceedings were brought before the Court by Germany. It notes that German consular officials became aware of the LaGrands' cases in 1992, but that the German Government did not express concern or protest to the United States authorities for some six and a half years. It maintains that the issue of the absence of consular notification was not raised by Germany until 22 February 1999, two days before the date scheduled for Karl LaGrand's execution, in a letter from the German Foreign Minister to the Secretary of State of the United States (see paragraph 26 above). Germany then filed the Application instituting these proceedings, together with a request for provisional measures, after normal business hours in the Registry in the evening of 2 March 1999, some 27 hours before the execution of Walter LaGrand (see paragraph 30 above).

54. The United States rejects the contention that Germany found out only seven days before the filing of its Application that the authorities of Arizona knew as early as 1982 that the LaGrands were German nationals; according to the United States, their German nationality was referred to in pre-sentence reports prepared in 1984, which should have been familiar to German consular officers much earlier than 1999, given Germany's claims regarding the vigour and effectiveness of its consular assistance.

55. According to the United States, Germany's late filing compelled the Court to respond to its request for provisional measures by acting ex parte, without full information. The United States claims that the procedure followed was inconsistent with the principles of "equality of the [p 487] Parties" and of giving each Party a sufficient opportunity to be heard, and that this would justify the Court in not addressing Germany's third submission which is predicated wholly upon the Order of 3 March 1999.

56. Germany acknowledges that delay on the part of a claimant State may render an application inadmissible, but maintains that international law does not lay down any specific time-limit in that regard. It contends that it was only seven days before it filed its Application that it became aware of all the relevant facts underlying its claim, in particular, the fact that the authorities of Arizona knew of the German nationality of the LaGrands since 1982. According to Germany, it cannot be accused of negligence in failing to obtain the 1984 pre-sentence reports earlier. It also maintains that in the period between 1992, when it learned of the LaGrands' cases, and the filing of its Application, it engaged in a variety of activities at the diplomatic and consular level. It adds that it had been confident for much of this period that the United States would ultimately rectify the violations of international law involved.

57. The Court recognizes that Germany may be criticized for the manner in which these proceedings were filed and for their timing. The Court recalls, however, that notwithstanding its awareness of the consequences of Germany's filing at such a late date, it nevertheless considered it appropriate to enter the Order of 3 March 1999, given that an irreparable prejudice appeared to be imminent. In view of these considerations, the Court considers that Germany is now entitled to challenge the alleged failure of the United States to comply with the Order. Accordingly, the Court finds that Germany's third submission is admissible.

*

58. The United States argues further that Germany's first submission, as far as it concerns its right to exercise diplomatic protection with respect to its nationals, is inadmissible on the ground that the LaGrands did not exhaust local remedies. The United States maintains that the alleged breach concerned the duty to inform the LaGrands of their right to consular access, and that such a breach could have been remedied at the trial stage, provided it was raised in a timely fashion. The United States contends that when a person fails, for example, to sue in a national court before a statute of limitations has expired, the claim is both procedurally barred in national courts and inadmissible in international tribunals for failure to exhaust local remedies. It adds that the failure of counsel for the LaGrands to raise the breach of the Vienna Convention at the appropriate stage and time of the proceedings does not excuse the non-exhaustion of local remedies. According to the United States, this [p 488] failure of counsel is imputable to their clients because the law treats defendants and their lawyers as a single entity in terms of their legal positions. Moreover, the State is not accountable for the errors or mistaken strategy by lawyers.

59. Germany responds that international law requires the exhaustion of only those remedies which are legally and practically available. Germany claims that in this case there was no remedy which the LaGrands failed to invoke that would have been available in the specific context of their case. This is so because, prior to 1992, the LaGrands could not resort to the available remedies, since they were unaware of their rights due to failure of the United States authorities to comply with the requirements of the Vienna Convention; thereafter, the "procedural default" rule prevented them from seeking any remedy.

60. The Court notes that it is not disputed that the LaGrands sought to plead the Vienna Convention in United States courts after they learned in 1992 of their rights under the Convention; it is also not disputed that by that date the procedural default rule barred the LaGrands from obtaining any remedy in respect of the violation of those rights. Counsel assigned to the LaGrands failed to raise this point earlier in a timely fashion. However, the United States may not now rely before this Court on this fact in order to preclude the admissibility of Germany's first submission, as it was the United States itself which had failed to carry our its obligation under the Convention to inform the LaGrand brothers.

*

61. The United States also contends that Germany's submissions are inadmissible on the ground that Germany seeks to have a standard applied to the United States that is different from its own practice. According to the United States, Germany has not shown that its system of criminal justice requires the annulment of criminal convictions where there has been a breach of the duty of consular notification; and that the practice of Germany in similar cases has been to do no more than offer an apology. The United States maintains that it would be contrary to basic principles of administration of justice and equality of the Parties to apply against the United States alleged rules that Germany appears not to accept for itself.

62. Germany denies that it is asking the United States to adhere to standards which Germany itself does not abide by; it maintains that its law and practice is fully in compliance with the standards which it invokes. In this regard, it explains that the German Code of Criminal [p 489] Procedure provides a ground of appeal where a legal norm, including a norm of international law, is not applied or incorrectly applied and where there is a possibility that the decision was impaired by this fact.

63. The Court need not decide whether this argument of the United States, if true, would result in the inadmissibility of Germany's submissions. Here the evidence adduced by the United States does not justify the conclusion that Germany's own practice fails to conform to the standards it demands from the United States in this litigation. The United States relies on certain German cases to demonstrate that Germany has itself proffered only an apology for violating Article 36 of the Vienna Convention, and that State practice shows that this is the appropriate remedy for such a violation. But the cases concerned entailed relatively light criminal penalties and are not evidence as to German practice where an arrested person, who has not been informed without delay of his or her rights, is facing a severe penalty as in the present case. It is no doubt the case, as the United States points out, that Article 36 of the Vienna Convention imposes identical obligations on States, irrespective of the gravity of the offence a person may be charged with and of the penalties that may be imposed. However, it does not follow therefrom that the remedies for a violation of this Article must be identical in all situations. While an apology may be an appropriate remedy in some cases, it may in others be insufficient. The Court accordingly finds that this claim of inadmissibility must be rejected.

***

64. Having determined that the Court has jurisdiction, and that the submissions of Germany are admissible, the Court now turns to the merits of each of these four submissions.

**

65. Germany's first submission requests the Court to adjudge and declare:

"that the United States, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36 subparagraph 1 (b) of the Vienna Convention on Consular Relations, and by depriving Germany of the possibility of rendering consular assistance, which ultimately resulted in the execution of Karl and Walter LaGrand, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, under Articles 5 and 36 paragraph 1 of the said Convention". [p 490]

66. Germany claims that the United States violated its obligation under Article 36, paragraph 1 (b) to "inform a national of the sending state without delay of his or her right to inform the consular post of his home State of his arrest or detention". Specifically, Germany maintains that the United States violated its international legal obligation to Germany under Article 36, paragraph 1 (b), by failing to inform the German nationals Karl and Walter LaGrand "without delay" of their rights under that subparagraph.

67. The United States acknowledges, and does not contest Germany's basic claim, that there was a breach of its obligation under Article 36, paragraph 1 (b), of the Convention "promptly to inform the LaGrand brothers that they could ask that a German consular post be notified of their arrest and detention".

68. Germany also claims that the violation by the United States of Article 36, paragraph 1 (b), led to consequential violations of Article 36, paragraph 1 (a) and (c). It points out that, when the obligation to inform the arrested person without delay of his or her right to contact the consulate is disregarded, "the other rights contained in Article 36, paragraph 1, become in practice irrelevant, indeed meaningless." Germany maintains that, "by informing the LaGrand brothers of their right to inform the consulate more than 16 years after their arrest, the United States . . . clearly failed to meet the standard of Article 36 [1 (c)]". It concludes that, by not preventing the execution of Karl and Walter LaGrand, and by "making irreversible its earlier breaches of Art. 5 and 36 (1) and (2) and causing irreparable harm, the United States violated its obligations under international law".

69. The United States argues that the underlying conduct complained of by Germany is one and the same, namely, the failure to inform the LaGrand brothers as required by Article 36, paragraph 1 (b). Therefore, it disputes any other basis for Germany's claims that other provisions, such as subparagraphs (a) and (c) of Article 36, paragraph 1, of the Convention, were also violated. The United States asserts that Germany's claims regarding Article 36, paragraph 1 (a) and (c), are "particularly misplaced" in that the LaGrands were able to and did communicate freely with consular officials after 1992. There was, in the view of the United States, "no deprivation of Germany's right to provide consular assistance, under Article 5 or Article 36, to Karl or Walter LaGrand" and "Germany's attempt to transform a breach of one obligation into an additional breach of a wholly separate and distinct obligation should be rejected by the Court."

70. In response, Germany asserts that it is "commonplace that one [p 491] and the same conduct may result in several violations of distinct obligations". Hence, when a detainee's right to notification without delay is violated, he or she cannot establish contact with the consulate, receive visits from consular officers, nor be supported by adequate counsel. "Therefore, violation of this right is bound to imply violation of the other rights . . . [and] later observance of the rights of Article 36, paragraph 1 (a) and (c), could not remedy the previous violation of those provisions."

71. Germany further contends that there is a causal relationship between the breach of Article 36 and the ultimate execution of the LaGrand brothers. Germany's inability to render prompt assistance was, in its view, a "direct result of the United States' breach of its Vienna Convention obligations". It is claimed that, had Germany been properly afforded its rights under the Vienna Convention, it would have been able to intervene in time and present a "persuasive mitigation case" which "likely would have saved" the lives of the brothers. Germany believes that, "had proper notification been given under the Vienna Convention, competent trial counsel certainly would have looked to Germany for assistance in developing this line of mitigating evidence". Moreover, Germany argues that, due to the doctrine of procedural default and the high post-conviction threshold for proving ineffective counsel under United States law, Germany's intervention at a stage later than the trial phase could not "remedy the extreme prejudice created by the counsel appointed to represent the LaGrands".

72. The United States terms these arguments as "suppositions about what might have occurred had the LaGrand brothers been properly informed of the possibility of consular notification". It calls into question Germany's assumption that German consular officials from Los Angeles would rapidly have given extensive assistance to the LaGrands' defence counsel before the 1984 sentencing, and contests that such consular assistance would have affected the outcome of the sentencing proceedings. According to the United States, these arguments "rest on speculation" and do not withstand analysis. Finally, the United States finds it extremely doubtful that the early childhood "mitigating evidence" mentioned by Germany, if introduced at the trial, would have persuaded the sentencing judge to be lenient, as the brothers' subsequent 17 years of experiences in the United States would have been given at least equal weight. The United States points out, moreover, that such evidence was in fact presented at trial.

73. The Court will first examine the submission Germany advances in its own right. The Court observes, in this connection, that the United States does not deny that it violated paragraph 1 (b) in relation to Ger-[p492]many. The Court also notes that as a result of this breach, Germany did not learn until 1992 of the detention, trial and sentencing of the La Grand brothers. The Court concludes therefrom that on the facts of this case, the breach of the United States had the consequence of depriving Germany of the exercise of the rights accorded it under Article 36, paragraph 1 (a) and paragraph 1 (c), and thus violated these provisions of the Convention. Although the violation of paragraph 1 (b) of Article 36 will not necessarily always result in the breach of the other provisions of this Article, the Court finds that the circumstances of this case compel the opposite conclusion, for the reasons indicated below. In view of this finding, it is not necessary for the Court to deal with Germany's further claim under Article 5 of the Convention.

74. Article 36, paragraph 1, establishes an interrelated regime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection: the right of communication and access (Art. 36, para. 1 (a)). This clause is followed by the provision which spells out the modalities of consular notification (Art. 36, para. 1 (b)). Finally Article 36, paragraph 1 (c), sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State. It follows that when the sending State is unaware of the detention of its nationals due to the failure of the receiving State to provide the requisite consular notification without delay, which was true in the present case during the period between 1982 and 1992, the sending State has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1. It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen.

*

75. Germany further contends that "the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers". Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground.

Germany maintains that the right to be informed of the rights under Article 36, paragraph 1 (b), of the Vienna Convention, is an individual right of every national of a State party to the Convention who enters the [p 493] territory of another State party. It submits that this view is supported by the ordinary meaning of the terms of Article 36, paragraph 1 (b), of the Vienna Convention, since the last sentence of that provision speaks of the "rights" under this subparagraph of "the person concerned", i.e., of the foreign national arrested or detained. Germany adds that the provision in Article 36, paragraph 1 (b), according to which it is for the arrested person to decide whether consular notification is to be provided, has the effect of conferring an individual right upon the foreign national concerned. In its view, the context of Article 36 supports this conclusion since it relates to both the concerns of the sending and receiving States and to those of individuals. According to Germany, the travaux preparatoires of the Vienna Convention lend further support to this interpretation. In addition, Germany submits that the "United Nations Declaration on the human rights of individuals who are not nationals of the country in which they live," adopted by General Assembly resolution 40/144 on 13 December 1985, confirms the view that the right of access to the consulate of the home State, as well as the information on this right, constitute individual rights of foreign nationals and are to be regarded as human rights of aliens.

76. The United States questions what this additional claim of diplomatic protection contributes to the case and argues that there are no parallels between the present case and cases of diplomatic protection involving the espousal by a State of economic claims of its nationals. The United States maintains that the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the claims of its nationals through diplomatic protection, are legally different concepts.

The United States contends, furthermore, that rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance. It maintains that the treatment due to individuals under the Convention is inextricably linked to and derived from the right of the State, acting through its consular officer, to communicate with its nationals, and does not constitute a fundamental right or a human right. The United States argues that the fact that Article 36 by its terms recognizes the rights of individuals does not determine the nature of those rights or the remedies required under the Vienna Convention for breaches of that Article. It points out that Article 36 begins with the words "with a view to facilitating the exercise of consular functions relating to nationals of the sending State," and that this wording gives no support to the notion that the rights and obligations enumerated in paragraph 1 of that Article are intended to ensure that nationals of the sending State have any particular rights or [p 494] treatment in the context of a criminal prosecution. The travaux preparatoires of the Vienna Convention according to the United States, do not reflect a consensus that Article 36 was addressing immutable individual rights, as opposed to individual rights derivative of the rights of States.

77. The Court notes that Article 36, paragraph 1 (b), spells out the obligations the receiving State has towards the detained person and the sending State. It provides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the individual's detention "without delay". It provides further that any communication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State "without delay". Significantly, this subparagraph ends with the following language: "The said authorities shall inform the person concerned without delay of his rights under this subparagraph" (emphasis added). Moreover, under Article 36, paragraph 1 (c), the sending State's right to provide consular assistance to the detained person may not be exercised "if he expressly opposes such action". The clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand (see Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8; Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69-70, para. 48; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51). Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case.

78. At the hearings, Germany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right, but has today assumed the character of a human right. In consequence, Germany added, "the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative". The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.

**[p 495]

79. The Court will now consider Germany's second submission, in which it asks the Court to adjudge and declare:

"that the United States, by applying rules of its domestic law, in particular the doctrine of procedural default, which barred Karl and Walter LaGrand from raising their claims under the Vienna Convention on Consular Relations, and by ultimately executing them, violated its international legal obligation to Germany under Article 36, paragraph 2, of the Vienna Convention to give full effect to the purposes for which the rights accorded under Article 36 of the said Convention are intended".

80. Germany argues that, under Article 36, paragraph 2, of the Vienna Convention

"the United States is under an obligation to ensure that its municipal 'laws and regulations . . . enable full effect to be given to the purposes for which the rights accorded under this article are intended' [and that it] is in breach of this obligation by upholding rules of domestic law which make it impossible to successfully raise a violation of the right to consular notification in proceedings subsequent to a conviction of a defendant by a jury".

81. Germany points out that the "procedural default" rule is among the rules of United States domestic law whose application make it impossible to invoke a breach of the notification requirement. According to Germany, this rule "is closely connected with the division of labour between federal and state jurisdiction in the United States . . . [where] criminal jurisdiction belongs to the States except in cases provided for in the Constitution". This rule, Germany explains, requires "exhaustion of remedies at the State level before a habeas corpus motion can be filed with federal Courts".

Germany emphasizes that it is not the "procedural default" rule as such that is at issue in the present proceedings, but the manner in which it was applied in that it "deprived the brothers of the possibility to raise the violations of their right to consular notification in U.S. criminal proceedings".

82. Furthermore, having examined the relevant United States jurisprudence, Germany contends that the procedural default rule had "made it impossible for the LaGrand brothers to effectively raise the issue of the lack of consular notification after they had at last learned of their rights and established contact with the German consulate in Los Angeles in 1992". [p 496]

83. Finally, Germany states that it seeks

"nothing . . . more than compliance, or, at least, a system in place which does not automatically reproduce violation after violation of the Vienna Convention, only interrupted by the apologies of the United States Government."

84. The United States objects to Germany's second submission, since it considers that "Germany's position goes far beyond the wording of the Convention, the intentions of the parties when it was negotiated, and the practice of States, including Germany's practice".

85. In the view of the United States:

"the Vienna Convention does not require States Party to create a national law remedy permitting individuals to assert claims involving the Convention in criminal proceedings. If there is no such requirement, it cannot violate the Convention to require that efforts to assert such claims be presented to the first court capable of adjudicating them".

According to the United States,

"if there is no obligation under the Convention to create such individual remedies in criminal proceedings, the rule of procedural default - requiring that claims seeking such remedies be asserted at an appropriately early stage - cannot violate the Convention".

86. The United States believes that Article 36, paragraph 2, "has a very clear meaning" and

"means, as it says, that the rights referred to in paragraph 1 shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso that said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under the Article are intended".

In the view of the United States,

"in the context of a foreign national in detention, the relevant laws and regulations contemplated by Article 36 (2) are those that may affect the exercise of specific rights under Article 36 (1), such as those addressing the timing of communications, visiting hours, and security in a detention facility. There is no suggestion in the text of Article 36 (2) that the rules of criminal law and procedure under which a defendant would be tried or have his conviction and sentence reviewed by appellate courts are also within the scope of this provision." [p 497]

87. The United States concludes that Germany's second submission must be rejected "because it is premised on a misinterpretation of Article 36, paragraph 2, which reads the context of the provision -- the exercise of a right under paragraph 1 - out of existence".

88. Article 36, paragraph 2, of the Vienna Convention reads 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 enable full effect to be given to the purposes for which the rights accorded under this article are intended."

89. The Court cannot accept the argument of the United States which proceeds, in part, on the assumption that paragraph 2 of Article 36 applies only to the rights of the sending State and not also to those of the detained individual. The Court has already determined that Article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded the sending State, and that consequently the reference to "rights" in paragraph 2 must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual (see paragraph 77 above).

90. Turning now to the "procedural default" rule, the application of which in the present case Germany alleges violated Article 36, paragraph 2, the Court emphasizes that a distinction must be drawn between that rule as such and its specific application in the present case. In itself, the rule does not violate Article 36 of the Vienna Convention. The problem arises when the procedural default rule does not allow the detained individual to challenge a conviction and sentence by claiming, in reliance on Article 36, paragraph 1, of the Convention, that the competent national authorities failed to comply with their obligation to provide the requisite consular information "without delay", thus preventing the person from seeking and obtaining consular assistance from the sending State.

91. In this case, Germany had the right at the request of the LaGrands "to arrange for [their] legal representation" and was eventually able to provide some assistance to that effect. By that time, however, because of the failure of the American authorities to comply with their obligation under Article 36, paragraph 1 (b), the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitutional grounds. As a result, although United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards, the procedural default rule prevented them from attaching any legal significance to the fact, inter alia, that the violation of the rights set forth in Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for [p 498] them and otherwise assisting in their defence as provided for by the Convention. Under these circumstances, the procedural default rule had the effect of preventing "full effect [from being] given to the purposes for which the rights accorded under this article are intended", and thus violated paragraph 2 of Article 36.

**

92. The Court will now consider Germany's third submission, in which it asks the Court to adjudge and declare:

"that the United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international legal obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending".

93. In its Memorial, Germany contended that "provisional measures indicated by the International Court of Justice [were] binding by virtue of the law of the United Nations Charter and the Statute of the Court". In support of its position, Germany developed a number of arguments in which it referred to the "principle of effectiveness", to the "procedural prerequisites" for the adoption of provisional measures, to the binding nature of provisional measures as a "necessary consequence of the bindingness of the final decision", to "Article 94 (1), of the United Nations Charter", to "Article 41 (1), of the Statute of the Court" and to the "practice of the Court".

Referring to the duty of the "parties to a dispute before the Court . . . to preserve its subject-matter", Germany added that:

"[a]part from having violated its duties under Art. 94 (1) of the United Nations Charter and Art. 41 (1) of the Statute, the United States has also violated the obligation to refrain from any action which might interfere with the subject-matter of a dispute while judicial proceedings are pending".

At the hearings, Germany further stated the following:

"A judgment by the Court on jurisdiction or merits cannot be treated on exactly the same footing as a provisional measure . . . Article 59 and Article 60 [of the Statute] do not apply to provisional measures or, to be more exact, apply to them only by implication; that is to say, to the extent that such measures, being both incidental [p 499] and provisional, contribute to the exercise of a judicial function whose end-result is, by definition, the delivery of a judicial decision. There is here an inherent logic in the judicial procedure, and to disregard it would be tantamount, as far as the Parties are concerned, to deviating from the principle of good faith and from what the German pleadings call 'the principle of institutional effectiveness' . . . Provisional measures . . . are indeed legal decisions, but they are decisions of procedure . . . Since their decisional nature is, however, implied by the logic of urgency and by the need to safeguard the effectiveness of the proceedings, they accordingly create genuine legal obligations on the part of those to whom they are addressed."

94. Germany claims that the United States committed a threefold violation of the Court's Order of 3 March 1999:

"(1) Immediately after the International Court of Justice had rendered its Order on Provisional Measures, Germany appealed to the U.S. Supreme Court in order to reach a stay of the execution of Walter LaGrand, in accordance with the International Court's Order to the same effect. In the course of these proceedings -- and in full knowledge of the Order of the International Court -- the Office of the Solicitor General, a section of the U.S. Department of Justice -- in a letter to the Supreme Court argued once again that: 'an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief'.

This statement of a high-ranking official of the Federal Government . . . had a direct influence on the decision of the Supreme Court.
………………………………………………………………………………………………
(2) In the following, the U.S. Supreme Court - an agency of the United States - refused by a majority vote to order that the execution be stayed. In doing so, it rejected the German arguments based essentially on the Order of the International Court of Justice on Provisional Measures . . .

(3) Finally, the Governor of Arizona did not order a stay of the execution of Walter LaGrand although she was vested with the right to do so by the laws of the State of Arizona. Moreover, in the present case, the Arizona Executive Board of Clemency - for the first time in the history of this institution - had issued a recommendation for a temporary stay, not least in light of the international legal issues involved in the case . . ."

95. The United States argues that it "did what was called for by the Court's 3 March Order, given the extraordinary and unprecedented [p 500] circumstances in which it was forced to act". It points out in this connection that the United States Government "immediately transmitted the Order to the Governor of Arizona", that "the United States placed the Order in the hands of the one official who, at that stage, might have had legal authority to stop the execution" and that by a letter from the Legal Counsellor of the United States Embassy in The Hague dated 8 March 1999, it informed the International Court of Justice of all the measures which had been taken in implementation of the Order.

The United States further states that:

"two central factors constrained the United States ability to act. The first was the extraordinarily short time between issuance of the Court's Order and the time set for the execution of Walter LaGrand . . .
………………………………………………………………………………………………
The second constraining factor was the character of the United States of America as a federal republic of divided powers."

96. The United States also alleges that the "terms of the Court's 3 March Order did not create legal obligations binding on [it]". It argues in this respect that "the language used by the Court in the key portions of its Order is not the language used to create binding legal obligations" and that

"the Court does not need here to decide the difficult and controversial legal question of whether its orders indicating provisional measures would be capable of creating international legal obligations if worded in mandatory . . . terms".

It nevertheless maintains that those orders cannot have such effects and, in support of that view, develops arguments concerning "the language and history of Article 41 (1) of the Court's Statute
and Article 94 of the Charter of the United Nations", the "Court's and State practice under these provisions", and the "weight of publicists' commentary".

Concerning Germany's argument based on the "principle of effectiveness", the United States contends that

"in an arena where the concerns and sensitivities of States, and not abstract logic, have informed the drafting of the Court's constitutive documents, it is perfectly understandable that the Court might have the power to issue binding final judgments, but a more circumscribed authority with respect to provisional measures".

Referring to Germany's argument that the United States "violated the obligation to refrain from any action which might interfere with the sub-[p 501]ject matter of a dispute while judicial proceedings are pending", the United States further asserts that:

"The implications of the rule as presented by Germany are potentially quite dramatic, however. Germany appears to contend that by merely filing a case with the Court, an Applicant can force a Respondent to refrain from continuing any action that the Applicant deems to affect the subject of the dispute. If the law were as Germany contends, the entirety of the Court's rules and practices relating to provisional measures would be surplussage. This is not the law, and this is not how States or this Court have acted in practice."

97. Lastly, the United States states that in any case, "because of the press of time stemming from Germany's last-minute filing of the case, basic principles fundamental to the judicial process were not observed in connection with the Court's 3 March Order" and that


"thus, whatever one might conclude regarding a general rule for provisional measures, it would be anomalous - to say the least - for the Court to construe this Order as a source of binding legal obligations".

98. Neither the Permanent Court of International Justice, nor the present Court to date, has been called upon to determine the legal effects of orders made under Article 41 of the Statute. As Germany's third submission refers expressly to an international legal obligation "to comply with the Order on Provisional Measures issued by the Court on 3 March 1999", and as the United States disputes the existence of such an obligation, the Court is now called upon to rule expressly on this question.

99. The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty's object and purpose.

100. The French text of Article 41 reads as follows:

"1. La Cour a le pouvoir d'indiquer, si elle estime que les circons-[p 502]tances l'exigent, quelles mesures conservatoires due droit de chacun doivent etre prises a titre provisoire.

2. En attendant l'arret definitif, l'indication de ces mesures est immediatement notifiee aux parties et au Conseil de securite." (Emphasis added.)

In this text, the terms "indiquer" and "l'indication" may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words "doivent etre prises" have an imperative character.

For its part, the English version of Article 41 reads as follows:

"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.

2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council." (Emphasis added.)

According to the United States, the use in the English version of "indicate" instead of "order", of "ought" instead of "must" or "shall", and of "suggested" instead of "ordered", is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as "indicate" and "ought" have a meaning equivalent to "order" and "must" or "shall".

101. Finding itself faced with two texts which are not in total harmony, the Court will first of all
note that according to Article 92 of the Charter, the Statute "forms an integral part of the present Charter". Under Article 111 of the Charter, the French and English texts of the latter are "equally authentic". The same is equally true of the Statute.

In cases of divergence between the equally authentic versions of the Statute, neither it nor the Charter indicates how to proceed. In the absence of agreement between the parties in this respect, it is appropriate to refer to paragraph 4 of Article 33 of the Vienna Convention on the Law of Treaties, which in the view of the Court again reflects customary international law. This provision reads "when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted".

The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41.

102. The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from [p 503] being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.

103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of

"the principle universally accepted by international tribunals and likewise laid down in many conventions . . . 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 might aggravate or extend the dispute" (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199).

Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented (see Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18, and p. 11, para. 32, point 1 A; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 23, para. 48, and p. 24, para. 52 B; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349, para. 57, and p. 350, para. 61 (3); Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), pp. 22-23, para. 41, and p. 24, para. 49 (1)).

104. Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of its object and purpose, it does not consider it necessary to resort to the preparatory work in order to determine the meaning of that Article. The Court would nevertheless point out that the preparatory work of the Statute [p 504] does not preclude the conclusion that orders under Article 41 have binding force.

105. The initial preliminary draft of the Statute of the Permanent Court of International Justice, as prepared by the Committee of Jurists established by the Council of the League of Nations, made no mention of provisional measures. A provision to this effect was inserted only at a later stage in the draft prepared by the Committee, following a proposal from the Brazilian jurist Raul Fernandes.

Basing himself on the Bryan Treaty of 13 October 1914 between the United States and Sweden, Raul Fernandes had submitted the following text:

"Dans le cas ou la cause due differend consiste en actes determines deja effectues ou sur le point de l'etre, la Cour pourra ordonner, dans le plus bref delai, a titre provisoire, des mesures conservatoires adequates, en attendant le jugement definitif." (Comite consultatif de juristes, Proces-verbaux des seances due comite, 16 juin-24 juillet 1920 (avec annexes), La Haye, 1920, p. 609.)

In its English translation this text read as follows:

"In case the cause of the dispute should consist of certain acts already committed or about to be committed, the Court may, provisionally and with the least possible delay, order adequate protective measures to be taken, pending the final judgment of the Court." (Advisory Committee of Jurists, Proces-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, p. 609.)

The Drafting Committee prepared a new version of this text, to which two main amendments were made: on the one hand, the words "la Cour pourra ordonner" ("the Court may . . . order") were replaced by "la Cour a le pouvoir d'indiquer" ("the Court shall have the power to suggest"), while, on the other, a second paragraph was added providing for notice to be given to the parties and to the Council of the "measures suggested" by the Court. The draft Article 2bis as submitted by the Drafting Committee thus read as follows:


"Dans le cas ou la cause due differend consiste en un acte effectue ou sur le point de l'etre, la Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires due droit de chacun doivent etre prises a titre provisoire.

"En attendant son arret, cette suggestion de la Cour est immediatement transmise aux parties et au Conseil." (Comitee consultatif de juristes, Proces-verbaux des seances due comite, 16 juin-24 juillet 1920 (avec annexes), La Haye, 1920, p. 567-568.)

The English version read:

"If the dispute arises out of an act which has already taken place or which is imminent, the Court shall have the power to suggest, if it [p 505] considers that circumstances so require, the provisional measures that should be taken to preserve the respective rights of either party.

Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Council." (Advisory Committee of Jurists, Proces-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, pp. 567-568.)

The Committee of Jurists eventually adopted a draft Article 39, which amended the former Article 2bis only in its French version: in the second paragraph, the words "cette suggestion" were replaced in French by the words "l'indication".

106. When the draft Article 39 was examined by the Sub-Committee of the Third Committee of the first Assembly of the League of Nations, a number of amendments were considered. Raul Fernandes suggested again to use the word "ordonner" in the French version. The Sub-Committee decided to stay with the word "indiquer", the Chairman of the Sub-Committee observing that the Court lacked the means to execute its decisions. The language of the first paragraph of the English version was then made to conform to the French text: thus the word "suggest" was replaced by "indicate", and "should" by "ought to". However, in the second paragraph of the English version, the phrase "measures suggested" remained unchanged.

The provision thus amended in French and in English by the Sub-Committee was adopted as Article 41 of the Statute of the Permanent Court of International Justice. It passed as such into the Statute of the present Court without any discussion in 1945.

107. The preparatory work of Article 41 shows that the preference given in the French text to "indiquer" over "ordonner" was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders.

108. The Court finally needs to consider whether Article 94 of the United Nations Charter precludes attributing binding effect to orders indicating provisional measures. That Article reads as follows:

"1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it [p 506] deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."

The question arises as to the meaning to be attributed to the words "the decision of the International Court of Justice" in paragraph 1 of this Article. This wording could be understood as referring not merely to the Court's judgments but to any decision rendered by it, thus including orders indicating provisional measures. It could also be interpreted to mean only judgments rendered by the Court as provided in paragraph 2 of Article 94. In this regard, the fact that in Articles 56 to 60 of the Court's Statute, both the word "decision" and the word "judgment" are used does little to clarify the matter.

Under the first interpretation of paragraph 1 of Article 94, the text of the paragraph would confirm the binding nature of provisional measures; whereas the second interpretation would in no way preclude their being accorded binding force under Article 41 of the Statute. The Court accordingly concludes that Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character.

109. In short, it is clear that none of the sources of interpretation referred to in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect.

*

110. The Court will now consider the Order of 3 March 1999. This Order was not a mere exhortation. It had been adopted pursuant to Article 41 of the Statute. This Order was consequently binding in character and created a legal obligation for the United States.

*

111. As regards the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999, the Court observes that the Order indicated two provisional measures, the first of which states that


"the United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order".

The second measure required the Government of the United States to [p 507] "transmit this Order to the Governor of the State of Arizona". The information required on the measures taken in implementation of this Order was given to the Court by a letter of 8 March 1999 from the Legal Counsellor of the United States Embassy at The Hague. According to this letter, on 3 March 1999 the State Department had transmitted to the Governor of Arizona a copy of the Court's Order. "In view of the extremely late hour of the receipt of the Court's Order", the letter of 8 March went on to say, "no further steps were feasible".

The United States authorities have thus limited themselves to the mere transmission of the text of the Order to the Governor of Arizona. This certainly met the requirement of the second of the two measures indicated. As to the first measure, the Court notes that it did not create an obligation of result, but that the United States was asked to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings". The Court agrees that due to the extremely late presentation of the request for provisional measures, there was certainly very little time for the United States authorities to act.

112. The Court observes, nevertheless, that the mere transmission of its Order to the Governor of Arizona without any comment, particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of the United States that orders of the International Court of Justice on provisional measures are non-binding, was certainly less than could have been done even in the short time available. The same is true of the United States Solicitor General's categorical statement in his brief letter to the United States Supreme Court that "an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief" (see paragraph 33 above). This statement went substantially further than the amicus brief referred to in a mere footnote in his letter, which was filed on behalf of the United States in earlier proceedings before the United States Supreme Court in the case of Angel Francisco Breard (see Breard v. Greene, United States Supreme Court, 14 April 1998, International Legal Materials, Vol. 37 (1988), p. 824; Memorial of Germany, Ann. 34). In that amicus brief, the same Solicitor General had declared less than a year earlier that "there is substantial disagreement among jurists as to whether an ICJ order indicating provisional measures is binding . . . The better reasoned position is that such an order is not binding."

113. It is also noteworthy that the Governor of Arizona, to whom the [p 508] Court's Order had been transmitted, decided not to give effect to it, even though the Arizona Clemency Board had recommended a stay of execution for Walter LaGrand.

114. Finally, the United States Supreme Court rejected a separate application by Germany for a stay of execution, "given the tardiness of the pleas and the jurisdictional barriers they implicate". Yet it would have been open to the Supreme Court, as one of its members urged, to grant a preliminary stay, which would have given it "time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved . . ." (Federal Republic of Germany et al. v. United States et al., United States Supreme Court, 3 March 1999).

115. The review of the above steps taken by the authorities of the United States with regard to the Order of the International Court of Justice of 3 March 1999 indicates that the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court's Order. The Order did not require the United States to exercise powers it did not have; but it did impose the obligation to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings . . .". The Court finds that the United States did not discharge this obligation.

Under these circumstances the Court concludes that the United States has not complied with the Order of 3 March 1999.

116. The Court observes finally that in the third submission Germany requests the Court to adjudge and declare only that the United States violated its international legal obligation to comply with the Order of 3 March 1999; it contains no other request regarding that violation. Moreover, the Court points out that the United States was under great time pressure in this case, due to the circumstances in which Germany had instituted the proceedings. The Court notes moreover that at the time when the United States authorities took their decision the question of the binding character of orders indicating provisional measures had been extensively discussed in the literature, but had not been settled by its jurisprudence. The Court would have taken these factors into consideration had Germany's submission included a claim for indemnification.

**

117. Finally, the Court will consider Germany's fourth submission, in which it asks the Court to adjudge and declare

"that the United States shall provide Germany an assurance that it will not repeat its unlawful acts and that, in any future cases of detention of or criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of [p 509] the rights under Article 36 of the Vienna Convention on Consular Relations. In particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by a violation of the rights under Article 36."

118. Germany states that:

"concerning the requested assurances and guarantees of non-repetition of the United States, they are appropriate because of the existence of a real risk of repetition and the seriousness of the injury suffered by Germany. Further, the choice of means by which full conformity of the future conduct of the United States with Article 36 of the Vienna Convention is to be ensured, may be left to the United States."

Germany explains that:

"the effective exercise of the right to consular notification embodied in [Article 36,] paragraph 2, requires that, where it cannot be excluded that the judgment was impaired by the violation of the right to consular notification, appellate proceedings allow for a reversal of the judgment and for either a retrial or a re-sentencing".

Finally, Germany points out that its fourth submission has been so worded "as to . . . leave the choice of means by which to implement the remedy [it seeks] to the United States".

119. In reply, the United States argues as follows:

"Germany's fourth submission is clearly of a wholly different nature than its first three submissions. Each of the first three submissions seeks a judgment and declaration by the
Court that a violation of a stated international legal obligation has occurred. Such judgments are at the core of the Court's function, as an aspect of reparation.
………………………………………………………………………………………………
In contrast, however, to the character of the relief sought in the first three submissions, the requirement of assurances of non-repetition sought in the fourth submission has no precedent in the jurisprudence of this Court and would exceed the Court's jurisdiction and authority in this case. It is exceptional even as a non-legal undertaking in State practice, and it would be entirely inappropriate for the Court to require such assurances with respect to the duty to inform undertaken in the Consular Convention in the circumstances of this case." [p 510]

It points out that "U.S. authorities are working energetically to strengthen the regime of consular notification at the state and local level throughout the United States, in order to reduce the chances of cases such as this recurring" and adds that:

"the German request for an assurance as to the duty to inform foreign nationals without delay of their right to consular notification . . . seeks to have the Court require the United States to assure that it will never again fail to inform a German foreign national of his or her right to consular notification",

and that "the Court is aware that the United States is not in a position to provide such an assurance". The United States further contends that it "has already provided appropriate assurances to Germany on this point".

Finally, the United States recalls that:

"with respect to the alleged breach of Article 36, paragraph 2, . . . Germany seeks an assurance that, 'in any future cases of detention of or criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36'".


According to the United States,

"[such an assurance] is again absolute in character . . . [and] seeks to create obligations on the United States that exceed those that are contained in the Vienna Convention. For example, the requirement of consular notification under Article 36, paragraph 1 (b), of the Convention applies when a foreign national is arrested, committed to prison or to custody pending trial or detained in any other manner. It does not apply, as the submission would have it, to any future criminal proceedings. That is a new obligation, and it does not arise out of the Vienna Convention."

The United States further observes that:

"even if this Court were to agree that, as a result of the application of procedural default with respect to the claims of the LaGrands, the United States committed a second internationally wrongful act, it should limit that judgment to the application of that law in the particular case of the LaGrands. It should resist the invitation to require an absolute assurance as to the application of US domestic law in all such future cases. The imposition of such an additional obligation on the United States would . . . be unprecedented in international jurisprudence and would exceed the Court's authority and jurisdiction."

120. The Court observes that in its fourth submission Germany seeks [p 511] several assurances. First it seeks a straightforward assurance that the United States will not repeat its unlawful acts. This request does not specify the means by which non-repetition is to be assured.

Additionally, Germany seeks from the United States that

"in any future cases of detention of or criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations".

This request goes further, for, by referring to the law of the United States, it appears to require specific measures as a means of preventing recurrence.

Germany finally requests that

"in particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by a violation of the rights under Article 36".

This request goes even further, since it is directed entirely towards securing specific measures in cases involving the death penalty.

121. Turning first to the general demand for an assurance of non-repetition, the Court observes that it has been informed by the United States of the "substantial measures [which it is taking] aimed at preventing any recurrence" of the breach of Article 36, paragraph 1 (b). Throughout these proceedings, oral as well as written, the United States has insisted that it "keenly appreciates the importance of the Vienna Convention's consular notification obligation for foreign citizens in the United States as well as for United States citizens travelling and living abroad"; that "effective compliance with the consular notification requirements of Article 36 of the Vienna Convention requires constant effort and attention"; and that

"the Department of State is working intensively to improve understanding of and compliance with consular notification and access requirements throughout the United States, so as to guard against future violations of these requirements".

The United States points out that

"this effort has included the January 1998 publication of a booklet entitled 'Consular Notification and Access: Instructions for Federal, State and Local Law Enforcement and Other Officials Regarding [p 512] Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them', and development of a small reference card designed to be carried by individual arresting officers."

According to the United States, it is estimated that until now over 60,000 copies of the brochure as well as over 400,000 copies of the pocket card have been distributed to federal, state and local law enforcement and judicial officials throughout the United States. The United States is also conducting training programmes reaching out to all levels of government. In the Department of State a permanent office to focus on United States and foreign compliance with consular notification and access requirements has been created.

122. Germany has stated that it "does not consider the so-called 'assurances' offered by the Respondent as adequate". It says

"violations of Article 36 followed by death sentences and executions cannot be remedied by apologies or the distribution of leaflets. An effective remedy requires certain changes in US law and practice".

In order to illustrate its point, Germany has presented to the Court a "list of German nationals detained after January 1, 1998, who claim not to have been informed of their consular rights". The United States has criticized this list as misleading and inaccurate.

123. The Court notes that the United States has acknowledged that, in the case of the LaGrand brothers, it did not comply with its obligations to give consular notification. The United States has presented an apology to Germany for this breach. The Court considers however that an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties.

In this respect, the Court has taken note of the fact that the United States repeated in all phases of these proceedings that it is carrying out a vast and detailed programme in order to ensure compliance by its competent authorities at the federal as well as at the state and local levels with its obligation under Article 36 of the Vienna Convention.

124. The United States has provided the Court with information, which it considers important, on its programme. If a State, in proceedings before this Court, repeatedly refers to substantial activities which it [p 513] is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard. The programme in question certainly cannot provide an assurance that there will never again be a failure by the United States to observe the obligation of notification under Article 36 of the Vienna Convention. But no State could give such a guarantee and Germany does not seek it. The Court considers that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany's request for a general assurance of non-repetition.

125. The Court will now examine the other assurances sought by Germany in its fourth submission. The Court observes in this regard that it can determine the existence of a violation of an international obligation. If necessary, it can also hold that a domestic law has been the cause of this violation. In the present case the Court has made its findings of violations of the obligations under Article 36 of the Vienna Convention when it dealt with the first and the second submission of Germany. But it has not found that a United States law, whether substantive or procedural in character, is inherently inconsistent with the obligations undertaken by the United States in the Vienna Convention. In the present case the violation of Article 36, paragraph 2, was caused by the circumstances in which the procedural default rule was applied, and not by the rule as such.

In the present proceedings the United States has apologized to Germany for the breach of Article 36, paragraph 1, and Germany has not requested material reparation for this injury to itself and to the LaGrand brothers. It does, however, seek assurances:

"that, in any future cases of detention or of criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations",

and that

"in particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by the violation of the rights under Article 36".

The Court considers in this respect that if the United States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and [p 514] sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.

126. Given the foregoing ruling by the Court regarding the obligation of the United States under certain circumstances to review and reconsider convictions and sentences, the Court need not examine Germany's further argument which seeks to found a like obligation on the contention that the right of a detained person to be informed without delay pursuant to Article 36, paragraph 1, of the Vienna Convention is not only an individual right but has today assumed the character of a human right.

127. In reply to the fourth submission of Germany, the Court will therefore limit itself to taking note of the commitment undertaken by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention, as well as the aforementioned duty of the United States to address violations of that Convention should they still occur in spite of its efforts to achieve compliance.


***

128. For these reasons,

THE COURT,

(1) By fourteen votes to one,

Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Federal Republic of Germany on 2 March 1999;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Parra-Aranguren;

(2) (a) By thirteen votes to two,

Finds that the first submission of the Federal Republic of Germany is admissible;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judges Oda, Parra-Aranguren; [p 515]

(b) By fourteen votes to one,

Finds that the second submission of the Federal Republic of Germany is admissible;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;

(c) By twelve votes to three,

Finds that the third submission of the Federal Republic of Germany is admissible;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh;

AGAINST: Judges Oda, Parra-Aranguren, Buergenthal;

(d) By fourteen votes to one,

Finds that the fourth submission of the Federal Republic of Germany is admissible;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;

(3) By fourteen votes to one,

Finds that, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America
breached its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;

(4) By fourteen votes to one,

Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph (3) above had been established, the United States of America breached its obligation to the Federal Republic of Ger-[p 516]many and to the LaGrand brothers under Article 36, paragraph 2, of the Convention;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;

(5) By thirteen votes to two,

Finds that, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice in the case, the United States of America breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judges Oda, Parra-Aranguren;

(6) Unanimously,

Takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Convention; and finds that this commitment must be regarded as meeting the Federal Republic of Germany's request for a general assurance of non-repetition;

(7) By fourteen votes to one,

Finds that should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.


IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda.


Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-seventh day of June, two thousand and one, in three copies, one of which will be placed in the archives [p 517] of the Court and the others transmitted to the Government of the Federal Republic of Germany and the Government of the United States of America, respectively.

(Signed) Gilbert Guillaume,
President.

(Signed) Philippe Couvreur,
Registrar.


President Guillaume makes the following declaration:

Declaration of President Guillaume

Subparagraph (7) of the operative part of the Court's Judgment envisages a situation where, despite the commitment by the United States noted by the Court in subparagraph (6), a severe penalty is imposed upon a German national without his or her rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations having been respected. The Court states that, in such a case, "the United States, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention".

This subparagraph represents a response to certain submissions by Germany and hence rules only on the obligations of the United States in cases of severe penalties imposed upon German nationals.

Thus, subparagraph (7) does not address the position of nationals of other countries or that of individuals sentenced to penalties that are not of a severe nature. However, in order to avoid any ambiguity, it should be made clear that there can be no question of applying an a contrario interpretation to this paragraph.

(Signed) Gilbert Guillaume.


Vice-President Shi appends a separate opinion to the Judgment of the Court; Judge Oda appends a dissenting opinion to the Judgment of the Court; Judges Koroma and Parra-Aranguren append separate opinions to the Judgment of the Court; Judge Buergenthal appends a dissenting opinion to the Judgment of the Court.

(Initialled) G.G.
(Initialled) Ph.C. [p 518]


Separate opinion of Vice-President Shi

Operative paragraph 128 (3) of the Judgment - Whether Article 36, paragraph 1 (b), of the Vienna Convention creates individual rights - The Court's interpretation of the subparagraph - Clarity of text and "rules of interpretation" - Text of Article 36, paragraph 1 (b), in the context and in light of the object and purpose of the Convention - Travaux préparatoires of Article 36, paragraph 1 (b) - The Court's interpretation of Article 36, paragraph 2 - Explanation of my vote on operative paragraph 128 (7) of the Judgment.

1. It was with a certain reluctance that I voted in favour of operative paragraph 128 (3) and (4) of the Court's Judgment. The main reason for this is my belief that the Court's findings in these two paragraphs were based on a debatable interpretation of Article 36 of the Vienna Convention on Consular Relations (hereinafter called "the Convention").

2. In operative paragraph 128 (3), the Court finds that

"by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America violated its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1".

I fully agree with the Court that the United States violated its obligations to Germany under Article 36, paragraph 1, of the Convention. However, I have doubts as to the Court's finding that the United States also violated its obligations to the LaGrand brothers. The Court's decision is a consequence of its interpretation of Article 36, paragraph 1, in particular subparagraph (b), of the Convention, regarding the differences between the Applicant and the Respondent as to whether that subparagraph creates individual rights in addition to the rights appertaining to the States parties.

Germany claimed that:

"the right to be informed upon arrest of the rights under Art. 36 (1) (b) of the Vienna Convention does not only reflect a right of the sending State (and home State of the individuals involved) towards the receiving State but also is an individual right of every national of a foreign State party to the Vienna Convention [p 519] entering the territory of another State party" (Memorial of Germany, Vol. I, p. 116, para. 4.91).

Whereas the United States contended that

"rights of consular notification and access under the Vienna Convention in any event are rights of States, not individuals. Clearly they can benefit individuals by permitting - not requiring - States to offer them consular assistance, but the Convention's role is not to articulate or confer individual rights" (Counter-Memorial of the United States, p. 81, para. 97).

3. In paragraph 77 of the Judgment, the Court, basing its interpretation of the subparagraph on the clarity of meaning of the text of the provision read in context, upheld that claim by Germany. I can readily accept this finding of the Court only if its interpretation of Article 36, paragraph 1 (b), is appropriate in the present case. Undoubtedly, the Court's interpretation is consistent with the well-known jurisprudence of this Court and of its predecessor that, if the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter and there is no need to resort to other methods of interpretation (Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8). However, in my view, indiscriminate reliance on such a dictum in any circumstances may not always be dependable or helpful in determining the true intention of the parties to a treaty. It can happen that for one reason or another - e.g., hasty or careless drafting, last-minute compromise in negotiations - the meaning clearly apparent from the text does not necessarily reflect that which the parties intended it to bear. Recourse to customary rules of interpretation as reflected in Article 31 of the Vienna Convention on the Law of Treaties may seem superfluous when the normal meaning of the text appears to be clear, but it does serve as a double check to prevent any possibility of misinterpretation. In fact, in the case concerning the Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal) the Court, while affirming its dictum in its Advisory Opinion referred to above, stated that the rule of interpretation according to the natural and ordinary meaning of the words employed is not an absolute one and referred to a pronouncement in the case concerning South West Africa as follows:

"Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it." (Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 336). [p 520]

It may also be relevant to quote the following passage from Oppenheim's International Law, (9th edition, 1992, Vol. I, p. 1267):

"The purpose of interpreting a treaty is to establish the meaning of the text which the parties must be taken to have intended it to bear in relation to the circumstances with reference to which the question of interpretation has arisen. It is frequently stated that if the meaning of a treaty is sufficiently clear from its text, there is no occasion to resort to 'rules of interpretation' in order to elucidate the meaning. Such a proposition is, however, of limited usefulness. The finding whether a treaty is clear or not is not the starting point but the result of the process of interpretation. It is not clarity in the abstract which is to be ascertained, but clarity in relation to particular circumstances and there are few treaty provisions for which circumstances cannot be envisaged in which their clarity could be put in question."

4. In the present case, both the Applicant and the Respondent had no divergence of views as to the normal meaning of the words of Article 36, paragraph 1 (b). However, the Parties reached differing conclusions on the interpretation of the subparagraph. In these circumstances I wonder whether it is proper for the Court, in approaching the issue, to place so much emphasis on the purported clarity of language of the provision, putting aside altogether the customary rules of interpretation. In my view it is not unreasonable for the United States to contend that the rights of nationals of the sending State under detention or arrest to consular notification and access under paragraph 1 (b) are not independent of, but rather are derived from, the right of the State party to protect and assist its nationals under the Convention, if the subparagraph is read, as the United States reads it, in context and in the light of the object and purpose of the Convention.

5. In the first place, the very title of the Convention is none other than the "Vienna Convention on Consular Relations". And the object and purpose of the conclusion of an international convention on consular relations as indicated in the preamble is to "contribute to the development of friendly relations among nations". Nowhere in the Preamble of the Convention is reference made to the creation of rights of individuals under the Convention.

6. Secondly, Article 36, which bears the title "Communications and contact with nationals of the sending State", begins with the words: "With a view to facilitating the exercise of consular functions relating to nationals of the sending State". This clause serves as the chapeau governing all the paragraphs of the Article, including paragraph 1 (b), where "rights" of the concerned nationals of the sending State are provided. Clearly, the effect of this clause is to limit the scope of Article 36 to facilitation of the exercise of consular functions relating to nationals of the sending State. It is unfortunate that paragraph 77 of the Judgment made [p 521] no mention of the chapeau of the Article, as if it were irrelevant to the context of paragraph 1 (b).

7. Thirdly, according to Article 5 of the Convention, consular functions consist inter alia in "protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law" (Art. 5 (a)) and "helping and assisting nationals, both individuals and bodies corporate, of the sending State" (Art. 5 (e)). Article 36, paragraph 1, and specifically subparagraph (b), has to be read in the context of these consular functions provided for in Article 5. It is obvious that there cannot be rights to consular notification and access if consular relations do not exist between the States concerned, or if rights of the sending State to protect and assist its nationals do not exist.

8. Finally, it is clear, as the United States has contended, that the travaux préparatoires of the 1963 Vienna Conference on Consular Relations do not confirm that Article 36, paragraph 1 (b), is intended to create individual rights (Counter-Memorial of the United States, pp. 82-84, paras. 99-100). Indeed, during the negotiating sessions of Article 36, the delegation of Venezuela objected to the opening statement of paragraph 1 (a) of the International Law Commission draft, concerning the right of nationals of the sending State to communicate with and to have access to the competent consulate, contending that it was inappropriate in a convention on consular relations, and that "foreign nationals in the receiving State should be under the jurisdiction of that State and should not come within the scope of a convention on consular relations" (United Nations Conference on Consular Relations, 1963, Vol. I, p. 331, para. 32). In the end, on the motion of Venezuela, Ecuador, Spain, Chile and Italy, the Second Committee of the Conference decided to reverse the original order of Article 36, paragraph 1 (a), of the International Law Commission draft, so that the subparagraph refers first to the right of consular officers to communicate with and to have access to nationals of the sending State, and secondly to the right of nationals of the sending State to have the same freedom with respect to communication with and access to consular officers of the sending State (ibid., p. 334, para. 2, and p. 336, para. 22).

9. This reversal of order in Article 36, paragraph 1 (a), confirms the interpretation of that subparagraph in the context and in the light of the object and purpose of the Convention. Thus, there are good grounds for the contention by the United States in its Counter-Memorial that

"That reversal underscores the fundamental point, that the position of the individual under the Convention derives from the right of the State party to the Convention, acting through its consular officer, to communicate with its nationals. The treatment due to individuals [p 522] is inextricably linked to and derived from the right of the State." (Counter-Memorial of the United States, p. 84, para. 100.)

10. Furthermore, the original International Law Commission draft Article 36, paragraph 1 (b), makes mandatory the obligation of the receiving State to inform the competent consulate of the sending State in case of detention of a national of that State. It reads:

"(b) The competent authorities shall, without undue delay, inform the competent consulate of the sending State, if within its district, a national of that State is committed to prison or to custody pending trial or is detained in any other manner. Any communications addressed to the consulate by the person in prison, custody or detention shall also be forwarded by the said authorities without undue delay" (Yearbook of the International Law Commission, 1961, Vol. II, p. 112).

11. During the negotiating sessions of the Vienna Conference, a number of delegations stressed the importance of the draft subparagraph. Thus, the delegation of Tunisia stated that it

"regarded paragraph 1 (b) as one of the most important in the draft. It was related to article 5 (Consular functions), . . . Detention (and he agreed with the French representative that arrest should also be included) was a serious infringement of the freedom and dignity of the individual. It was therefore unthinkable that the consul of the sending State should not be notified, and the obligation of the receiving State to notify him should be firmly established, for it was possible that in certain circumstances the foreign national might be unable to inform the consul and ask him for help and protection" (United Nations Conference on Consular Relations, 1963, Vol. I, p 339).

The delegation of the United Kingdom also stated that

"The rights of communication and contact with the nationals of sending States defined in article 36 were especially important for the persons under detention referred to in sub-paragraph (b). Such persons were obviously in very special need of consular help and the notification stipulated in sub-paragraph (b) was in many cases a necessary condition for providing it." (Ibid.)

12. However, during the negotiating sessions, this draft provision mainly aroused two different reactions. Quite a number of States, though in agreement with the formulation of the principle in the draft, were much concerned about the heavy burden that the mandatory consular notification would impose on the receiving State, particularly on those States on whose territories there are a sizeable number of resident aliens [p 523] and foreign tourists or other short-term visitors. There were also some delegations, at least partly motivated by the then Cold War mentality, who would have liked the subparagraph to reflect the free will of the detained or arrested person to state whether or not he or she wished to be approached by consular officials of his or her country.

13. In these circumstances, a seventeen-States amendment to paragraph 1 (b) was put forward before the Conference. The delegation of Tunisia, representing the sponsors of the amendment, stated that

"As far as sub-paragraph (b) was concerned, the sponsors had introduced the initial proviso 'unless he expressly opposes it', thereby relieving the receiving State of the automatic duty to inform the consul of the arrest of the person concerned. The reason for that proviso was the need to take into consideration the prisoner's own freedom of choice. It had been argued that in some cases a prisoner might not wish the consul to know that he had been in prison. The sponsors had hesitated at first; they had, however, ultimately agreed to take that point into account, but with appropriate safeguards. It was for that reason that the proviso was so drafted that the duty to notify would exist unless the person concerned explicitly stated that he did not wish the consul to be advised." (United Nations Conference on Consular Relations, 1963, Vol. I, p. 82, para. 56.)

14. In response to this proposed amendment, the delegation of the United Arab Republic introduced a twenty-States joint amendment which would replace in paragraph 1 (b) the words "unless he expressly opposes it" by the words "if he so requests". Explaining the amendment, the delegation of the United Arab Republic stated that

"The purpose of the amendment was to lessen the burden on the authorities of receiving Sates, especially those which had large numbers of resident aliens or which received many tourists and visitors. The language proposed in the joint amendment would ensure that the authorities of the receiving State would not be blamed if, owning to pressure of work or to other circumstances, there was a failure to report the arrest of a national of the sending State." (United Nations Conference on Consular Relations, 1963, Vol. 1, p. 82, para. 62.)

15. The result of the debate was the adoption of the twenty States' amendment with the insertion of the words "if he so requests" at the beginning of the subparagraph. The last sentence of Article 36, paragraph 1 (b), i.e., the provision that the competent authorities of the receiving State "shall inform the person concerned without delay of his rights" (United Nations Conference on Consular Relations, 1963, Vol. 1, pp. 336-343) was inserted belatedly as a compromise between the aforesaid two opposing views. [p 524] Thus, it is not possible to conclude from the negotiating history that Article 36, paragraph 1 (b), was intended by the negotiators to create individual rights. Moreover, if one keeps in mind that the general tone and thrust of the debate of the entire Conference concentrated on the consular functions and their practicability, the better view would be that no creation of any individual rights independent of rights of States was envisaged by the Conference.

16. With respect to operative paragraph 128 (4) of the Judgment, the Court's finding is a consequence of its interpretation of Article 36, paragraph 2, of the Convention.

Article 36, paragraph 2, of the Convention provides:

"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 enable full effect to be given to the purposes for which the rights accorded under this article are intended."

In the Court's view, since Article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded the sending State, the reference in paragraph 2 of the Article to rights referred to in paragraph 1 of this Article "must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual" (paragraph 89 of the Judgment).

As I have shown above, the view that Article 36, paragraph 1, specifically subparagraph (b), creates individual rights is at the very least a questionable one. It follows that the Court's finding in regard to the reference to "rights" in paragraph 2 is also questionable.

17. Finally, I should like to make it clear that it was not for reasons relating to the legal consequences of the breach of Article 36, paragraph 1 (b), that I voted in favour of operative paragraph 128 (7) of the Judgment. This operative paragraph is of particular significance in a case where a sentence of death is imposed, which is not only a punishment of a severe nature, but also one of an irreversible nature. Every possible measure should therefore be taken to prevent injustice or an error in conviction or sentencing. Out of this consideration, I voted in favour.

(Signed) Shi Jiuyong. [p 525]


DISSENTING OPINION OF JUDGE ODA

I. The Accumulation of Errors in the Present Case

1. I would like to begin this dissenting opinion by stating my view of the case as a whole. This case is unique and most difficult to understand. I see it as one that has come before the Court as a result of an accumulation of errors: the first made by Germany, as the Applicant; the second made by the United States, as Respondent; and the third made by the Court itself.[p 526]

1. The Error Made by Germany in Unilaterally Bringing before this Court Claims for Alleged Violations by the United States of the Convention on Consular Relations rather than the "Dispute" within the Meaning of the Optional Protocol

2. On 2 March 1999 Germany, "pursuant to Article I of the Vienna Convention's Optional Protocol concerning the Compulsory Settlement of Disputes", filed in the Registry of the Court an "Application instituting proceedings . . . against the United States of America for violations of the Vienna Convention on Consular Relations" (Application of the Federal Republic of Germany; emphasis added).

It is important to note that Germany never stated in the Application that it was instituting proceedings in respect of a dispute arising out of the interpretation or application of the Vienna Convention, although the Application did refer to Article I of the Optional Protocol, which reads:

"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." (Emphasis added.)

This case stands in clear contrast to the case concerning Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), a case which Germany brought against Iceland nearly 30 years ago and in which Germany filed an "Application instituting proceedings . . . in respect of a dispute" (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 176; emphasis added). This point is most important and should not have been overlooked in connection with the issues concerning the jurisdiction of the Court in the present case.

3. I submit, first of all, that before this case was instituted on 2 March 1999, neither the United States, the Respondent, nor even Germany, the Applicant, considered there to be a dispute between them which had "aris[en] out of the interpretation or application of the [Vienna] Convention". There had been no negotiation, or even discussion, over any such dispute.

4. The background to this case, involving Walter LaGrand, whose name is used by the Court as the title of the case, and his brother Karl LaGrand, is set out in detail in paragraphs 13 to 29 of the Judgment. The facts are: the LaGrand brothers committed crimes on 7 January 1982 and were arrested on the same day; they were convicted by the Superior Court of Pima County, Arizona, on 17 February 1984, and were sentenced to the death penalty on 14 December 1984. These facts have not been disputed. Appeals against the convictions and sentences to the Supreme Court of Arizona were rejected on 30 January 1987. Applica-[p 527]tions to the United States Supreme Court for further review of those judgments were denied on 5 October 1987.

Petitions for post-conviction relief were denied by an Arizona state court in 1989. Review of that decision was denied by the Supreme Court of Arizona in 1990 and by the United States Supreme Court in 1991. The subsequent judicial proceedings, including a request to the Supreme Court of Arizona for review of sentencing and a request for clemency, were all dismissed. The Supreme Court of Arizona decided on 15 January 1999 that Karl LaGrand and Walter LaGrand were to be executed on 24 February 1999 and on 3 March 1999 respectively. On 19 January 1999, the German Consulate learned of the Arizona Supreme Court decisions setting the dates for the executions of the LaGrand brothers.

5. At the time of their arrest, neither of the LaGrand brothers was aware that he had German nationality; nor were the competent United States authorities aware that the LaGrands were not United States nationals. The present Judgment states that the "competent authorities" of the United States became aware of the brothers' German nationality at some point between mid-1983 and late 1984. While the United States authorities failed to inform either brother of his true nationality until 1991, the LaGrands had in fact been made aware of their nationality status before that date. The case was brought to the attention of the German Consulate in June 1992 "by the LaGrands themselves, who had learnt of their rights [under Article 36, paragraph (1) (b), of the Vienna Convention] from other sources, and not from the Arizona authorities" (Judgment, para. 22). The German Consulate had repeated contact with the LaGrand brothers between December 1992 and February 1999. The Court states that "[o]n 21 December 1998, the LaGrands were formally notified by the United States authorities of their right to consular access" (Judgment, para. 24; emphasis added). I fail to see the significance of this "formal" notification, given that "actual" notification had already occurred and that "on a number of . . . occasions ... an official of the Consulate-General of Germany in Los Angeles [had] visited the LaGrands in prison" (Judgment, para. 22).

6. At no point in the sequence of events related above did Germany ever raise the question of the LaGrand brothers with the United States. Only in January/February 1999 did Germany approach the United States at the highest national levels requesting clemency for the LaGrand brothers (Judgment, para. 26). On 22 February 1999 — just two days before Karl LaGrand's execution — the German Foreign Minister drew the attention of the United States Secretary of State to the lack of consular notification.

It must be noted again that Germany did not institute proceedings in respect of a dispute with the United States regarding application of the Vienna Convention on Consular Relations. Even if Germany thought that the United States had violated the Vienna Convention on Consular Relations, it raised no such claims with the United States and the United [p 528] States was, of course, not privy to any unexpressed thoughts which Germany might have had about possible violations of the Convention by the United States. Neither State was aware before 2 March 1999 of any difference of views between them concerning the Vienna Convention. There were no negotiations between the two States on this point.

7.Suddenly, on 2 March 1999, Germany filed an "Application instituting proceedings . . . for violations of the Vienna Convention on Consular Relations" (Application, introductory paragraph) in the Registry of the Court pursuant to the Statute of the Court, Article 40, paragraph 1,and the Rules of Court, Article 38, paragraph 1.

It was at that point that the United States could have first discovered that it was involved in a "dispute" arising out of the interpretation or application of the Convention. It must have been very odd indeed for the United States to learn, only after proceedings had been brought against it, of the alleged existence of a "dispute".

The United States was informed by the Application filed by Germany on 2 March 1999 that Germany was claiming violations by the United States of the Vienna Convention on Consular Relations. I am surprised that Germany unilaterally brought this case under such circumstances. More than 17 years had already passed since the LaGrand brothers committed the crimes in January 1982 and were arrested on the same day. Nearly 15 years had passed since the Arizona state court sentenced them to death. During this period, Germany had done nothing to indicate that it had claims against the United States for violation of the Vienna Convention and that there was an issue giving rise to a "dispute" between the two countries.

8.Germany filed its Application instituting proceedings against the United States for an alleged violation of the Convention, but — again I wish to emphasize this point — not instituting proceedings in respect of" disputes arising out of the interpretation or application of the [Vienna]Convention on Consular Relations", which could have fallen within the compulsory jurisdiction of the Court pursuant to the Optional Protocol. A dispute arising out of the interpretation or application of the Convention either did not in fact exist between Germany and the United States or, if it did exist, had not been the subject of any diplomatic negotiations between them. All that existed at that time was Germany's potential claim, unbeknownst to the United States, of alleged violations of the Convention by the United States.

I believe that Germany erred: it presented its Application of 2 March 1999 instituting proceedings for violations of the Vienna Convention as if it were submitting a "dispute" under the Optional Clause. I maintain that this is a case of a unilateral application made in reliance upon subsequent consent to the Court's jurisdiction to be given by the respondent State. A dispute would then have come into existence once the Court was seised of the case after the United States consented to the Court's jurisdiction. [p 529]

9. I would hazard a guess that the German Government was prompted to bring this case before the International Court of Justice by the outcry raised by some in Germany, by the emotional reaction on the part of some people there — where the death penalty has been abolished — to a case involving the existence and application of the death penalty in the United States, a reaction made even stronger by the realization that the nationality of a fellow German (Karl LaGrand) had been ignored and that he had been executed after being afforded the same treatment a United States citizen would have received and that another German national (Walter LaGrand) whose execution was imminent had been treated in the same way.

It appears to me that the main aim was to save the life of Walter LaGrand, which aim was further supported by the Request for the indication of provisional measures filed together with the Application. It is unlikely that any human rights group in Germany ever thought that this case involved the Vienna Convention on Consular Relations. This may be mere supposition, but is there any other convincing reason to explain why the German Government referred an alleged violation of the Vienna Convention on Consular Relations to the Court without ascertaining through consultation or negotiation with the United States Government whether there existed any difference of views concerning the Vienna Convention between the two countries?

I am and have always been fully aware of the humanitarian concerns raised by the fate of the LaGrand brothers. However, I also drew attention to the rights of the victims of the LaGrand brothers' crimes and stated in my declaration appended to the Order of 3 March 1999 that:

"if Mr. Walter LaGrand'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" (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 18, declaration of Judge Oda).

10. I very much fear that the Court's acceptance of this Application presented unilaterally pursuant to the "optional clause" will in future lead States that have accepted the compulsory jurisdiction of the Court, either under Article 36, paragraph 2, of the Statute or under the Optional Protocol concerning the Compulsory Settlement of Disputes attached to multilateral treaties, to withdraw their acceptance of the Court's jurisdiction.

2. The Error Made by the United States in Not Responding in an Appropriate Manner to Germany's Application

11. The United States, which learned of Germany's views concerning the dispute allegedly "arising out of the interpretation or application of [p 530] the [Vienna] Convention" only upon the filing of Germany's Application, should, in my view, have raised preliminary objections to the case. The United States could have done this immediately after the Application was filed on 2 March 1999 or shortly afterwards. In fact, the United States did not do so. Instead, on 5 March 1999, the Court ordered that, since this was a case begun by means of a unilateral application to the Court, the applicant State (Germany) and the respondent State (the United States) — both of which are parties to the Optional Protocol — should submit their written pleadings within the respective time-limits set by the Court, namely, 16 September 1999 and 27 March 2000.

The United States could still have presented an objection to the case prior to 27 March 2000, the time-limit set for the presentation of the Counter-Memorial. I found it surprising that the United States, as Respondent, raised no objection during that one-year period. One might suppose that the United States felt itself to be in a weak position in its defence against this Application. From the earliest stages, the United States knew that it had failed to give prompt notice to the German Consulate of the facts involving the two German nationals. The United States would also have been aware that by that omission it had at that time violated the Vienna Convention on Consular Relations to a certain limited extent. If Germany had raised only the matter of the failure to give timely consular notification, the United States would have been without any strong counter-argument.

12. Upon receiving Germany's Memorial on 16 September 1999, the United States must have realized that Germany was essentially attempting to change the character of the Application as it then stood. Having incorporated the issues relating to compliance or non-compliance by the United States with the Court's Order of 3 March 1999 indicating provisional measures, the submissions presented by Germany in its Memorial of 16 September 1999 appeared to me to be far different in nature and broader in scope than those in its Application of 2 March 1999.

Once again, the United States could, pursuant to Article 79 of the Rules of Court, have raised objections before 27 March 2000 (namely, the time-limit set by the Court for the submission of its Counter-Memorial), and it should have done so, especially in the light of this significant change in the issues. The United States did not do so and instead presented its Counter-Memorial on that date. It was only in its Counter-Memorial of 27 March 2000 that the United States stated that "all other claims and submissions of. . . Germany [i.e., those other than the alleged breach of Article 36 (1) (b) of the Vienna Convention on Consular Relations] [should be] dismissed" (Counter-Memorial, p. 140, para. 175 (2)). It was there that the United States challenged the inclusion in the Application of 2 March 1999 of some of Germany's submissions contained in its Memorial of 16 September 1999.

13.The United States may have chosen not to raise an objection at the outset simply because it did not think that Germany would, in its subse-[p 531]quent Memorial, redefine the dispute referred to in its earlier Application, but the United States must have realized upon receipt of the Memorial in September 1999 that Germany had broadened and modified the definition of the "dispute". The case has been greatly complicated by the approach thus adopted by the United States.

14. In my view the improper filing of Germany's Application, as explained above, and the very indifferent reaction of the United States to Germany's Application form the essence of this case.

3. The Error Made by the International Court of Justice in Indicating Provisional Measures in its Order of 3 March 1999

15. In response to Germany's request submitted on 2 March 1999together with its Application of the same date, the Court on 3 March 1999issued an Order granting provisional measures. In my view, the issuing of that Order was not entirely proper. In order to maintain the solidarity of the Court and out of humanitarian concerns, I voted — albeit very reluctantly — in favour of the Order of 3 March 1999, and it was therefore adopted unanimously.

I now regret that I voted in favour of that Order, since I did so against my judicial conscience. It should, however, be clear from my declaration appended to the Court's Order of 3 March 1999 that I was, in substance, opposed to the issuance of that Order.

At that time, I held the view (which I still hold now) that:

"as a general rule, provisional measures are granted in order to preserve rights of States exposed to an imminent breach which is irreparable and these rights of States must be those to be considered at the merits stage of the case, and must constitute the subject-matter of the application instituting proceedings or be directly related to it" (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 19, declaration of Judge Oda)

and that

"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" (ibid.).

16. Let us reflect on the circumstances surrounding the Order of3 March 1999. Karl LaGrand had already been executed, and the request for provisional measures was submitted to the Court together with the Application instituting proceedings at 7.30 p.m. on 2 March1999, when Walter LaGrand's execution was imminent. Only on the morning of 3 March 1999 was the request dated 2 March 1999 provided to Members of the Court. Another case had been scheduled for that day, [p 532] and all Members of the Court therefore happened to be present at The Hague.

The Court made its Order at 7.15 p.m. on 3 March 1999, that is, on the very same day on which the consideration of Germany's request had begun — the sole reason for such haste being that Walter LaGrand's execution was imminent — without having given the United States a chance to express its views in writing and without having held a court sitting for oral hearings. (The times of day are those reported in Judge Buergenthal's dissenting opinion.) This Court was clearly faced with an extraordinary situation for which there was no precedent; it was only because of the exceptional circumstances of the case that the Court was able to make such an extraordinary Order in the limited time available to it.

17. This was not, however, a situation entailing rights of States exposed to an imminent, irreparable breach. The rights of States in question must be those to be considered at the merits stage of the case and must constitute the subject-matter of the application instituting proceedings or be directly related to it.

I submit that the provisional measures ordered by the Court on 3 March 1999, aimed at staying the execution — and therefore preserving the life, at least temporarily — of Walter LaGrand, were not directly related to the rights of States under the Vienna Convention and that the Court made a significant error in issuing an Order indicating provisional measures in this case, since the issue for which interim relief was sought did not figure among those for which provisional measures may be properly ordered by this Court. I am confident in my view that the Court did indeed err in issuing that Order.

This error was, however, quite understandable, as a human life hung in the balance and the Court was given very little time to decide upon the request for an order. As I stated earlier, I believe that Germany is responsible for the ensuing difficulties in this case, since it chose to file its Appli-cation at the last minute before Walter LaGrand's execution, and for placing the Court in a very difficult and delicate position. Now, with the benefit of a full hearing of both Parties and exposition of all the facts, it should be clear to the Court (as it was already clear to me on 3 March 1999) that it should not have issued the Order.

II. Errors in the Court's Present Judgment

A. Introduction

18. As explained in Part I above, I believe that the Court is confronted with a situation which resulted from an accumulation of three separate errors: the first error was made by Germany in improperly bringing the case before the Court; the second by the United States in not raising objections to Germany's Application at the proper time; and the third by the Court in handing down an order improperly granting provisional measures. The Court appears to be making an ultimate error on top of those cumulative errors. I am unable to support the Court's decision as a whole in the present Judgment.

19. Before explaining how I voted on each of the paragraphs of the operative part, I would like, in particular, to mention five principal issues involved in the present case.

First, the United States admitted its failure to give prompt consular notification and the ensuing violation of the Vienna Convention on Consular Relations in that respect. There was no dispute on this point between Germany and the United States.

Second, I see no relation between the delay in consular notification on the part of the United States authorities, on the one hand, and the handing down of the death sentence by the Arizona state court and the execution of the LaGrand brothers, on the other.

Third, the question of compliance with the Order for the indication of provisional measures of 3 March 1999 bears no relation to the present case, which was submitted by Germany in respect of alleged violations by the United States of the Vienna Convention on Consular Relations.

Fourth, the Court seems to cherish the illusion that a national of the sending State should, under the Convention, be accorded greater protection and enjoy more rights than nationals of the receiving State.

Fifth, it seems to me that the Court has confused the right, if any, of the arrested foreign national accorded under the Vienna Convention with the rights of foreign nationals to protection under general international law or other treaties or conventions, and, possibly, even with human rights.

B. Specific Critiques of the Operative Part 1. Subparagraph (I) of the operative part (Judgment, para. ¡28)

20. In subparagraph (1) of the operative part of the Judgment the Court states that "it has jurisdiction ... to entertain the Application filed by [Germany] on 2 March 1999". As stated in Part I, section 1,above, there is no basis for believing that there existed a dispute between Germany and the United States arising out of the interpretation or application of the Vienna Convention on Consular Relations in respect of which an Application could have been filed. I voted in favour of the Court's determination that the Court has jurisdiction to entertain Germany's Application of 2 March 1999 solely for the reason that the [p 534] United States, the Respondent, raised no preliminary objection to that Application.

However, I must stress that the Court's jurisdiction is over the Application of 2 March 1999, as originally filed, not as subsequently qualified by Germany's submissions extensively altering and supplementing the Application so as to change the very essence of it. It is to be noted in this regard that the United States, in its Counter-Memorial and in the oral arguments heard on 17 November 2000, submitted that Germany's claims and submissions, other than those concerning the breach by the United States of Article 36, paragraph 1 (b), of the Vienna Convention, should be dismissed.
21. In this respect I must refer also to Germany's third submission, regarding the Court's Order of 3 March 1999 indicating provisional measures, which, according to the present Judgment, "concerns issues that arise directly out of the dispute between the Parties before the Court over which the Court has already held that it has jurisdiction . . . and which are thus covered by Article I of the Optional Protocol" (Judgment, para. 45). The Court goes on to state:

"The Court reaffirms, in this connection, what it said in its Judgment in the Fisheries Jurisdiction case, where it declared that in order to consider the dispute in all its aspects, it may also deal with a submission that 'is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject-matter of that Application. As such it falls within the scope of the Court's jurisdiction ...' (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72)." (Ibid.)

From these statements the Court concludes:

"Where the Court has jurisdiction to decide a case, it also has jurisdiction to deal with submissions requesting it to determine that an order indicating measures which seeks to preserve the rights of the Parties to this dispute has not been complied with." (Ibid.)

I would like to point out that in the Fisheries Jurisdiction case, Germany referred a difference which had already ripened into a dispute with Iceland to the Court on the basis of, inter alia, an optional clause in the Exchange of Notes dated 19 July 1961. This differentiates it from the present case, which, as I stated in paragraphs 6 to 8 above, cannot be considered to have been brought under the Optional Protocol. In addition, in the Fisheries Jurisdiction case provisional measures were indicated to protect the rights of a State, Germany, from possible infringements which might arise from Iceland's exercise of its competence pursuant to its previously enacted national legislation. There is no basis [p 535] for likening the present case to the Fisheries Jurisdiction case as regards orders indicating provisional measures.


2. Subparagraph (2) of the operative part (Judgment, para. 128)

22. In connection with subparagraph (2) of the operative part, I believe that the Court should have decided on the admissibility of Germany's Application of 2 March 1999, not of Germany's submissions set out subsequently in the Memorial and repeated in its oral pleadings on 16 November 2000. For this reason, I voted against the whole of subparagraph (2),notwithstanding the fact that I note that the United States raised no preliminary objection in connection with the admissibility of the present case.

3. Subparagraph (3) of the operative part (Judgment, para. 128)

23. Subparagraph (3) appears to me to proceed from the premise that the Vienna Convention on Consular Relations placed a legal obligation on the United States not only to Germany but also to the LaGrand brothers. Let me follow the reasoning set out in the present Judgment. The Court begins by stating:
"The Court cannot accept the argument of the United States which proceeds, in part, on the assumption that paragraph 2 of Article 36 applies only to the rights of the sending State and not also to those of the detained individual. The Court has already determined that Article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded the sending State, and that consequently the reference to 'rights' in paragraph 2 must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual (see paragraph 77 above)." (Judgment, para. 89; emphasis added.)

What "[t]he Court has already determined" is as follows:

"The Court notes that Article 36, paragraph 1 (b), spells out the obligations the receiving State has towards the detained person and the sending State. It provides that . . . the receiving State must inform the consular post of the sending State ... It provides further that any communication by the detained person . . . must be forwarded to [the consular post of the sending State] by authorities of the receiving State . . . Significantly, this subparagraph ends with the following language: 'The said authorities shall inform the person concerned ... of his rights . . .'. Moreover, under Article 36, paragraph 1 (c), the sending State's right to provide consular assistance to the detained person may not be exercised 'if he expressly opposes such action'. The clarity of these provisions [Article 36, para-[p 536]graph 1 (b), (c)], viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand . . . Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case." (Judgment, para. 77; original emphasis by the Court deleted; emphasis is added.)

I see no convincing argument to support the determination of the Court that

"Article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded the sending State, and . . . consequently the reference to 'rights' in paragraph 2 must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual" (Judgment, para. 89).

24. I shall take the liberty of expressing my puzzlement at the reason for and relevance of the Court's reference in the Judgment to Article 36, paragraph 1 (c), of the Convention in connection with the rights of a detained person. I believe that this provision was included in the Convention simply to provide for the situation in which an arrested foreign national waives consular notification in order to prevent his criminal conduct or even his presence in a foreign country from becoming known in his home country; that provision may not have any further significance.

25. Article 36, paragraphs 1 and 2, of the Vienna Convention on Consular Relations is perceptively interpreted by Vice-President Shi in his separate opinion and I fully share his views.

4. Subparagraph (4) of the operative part (Judgment, para. 128)

26. In connection with this subparagraph (4), the Court admits that "[i]n itself, the [procedural default] rule does not violate Article 36 of the Convention" but concludes that in the present case:

"the procedural default rule does not allow the detained individual [in this case the LaGrand brothers] to challenge a conviction and sentence by claiming, in reliance on Article 36, paragraph 1, of the Convention, that the competent national authorities failed to comply with their obligation to provide the requisite consular information 'without delay', thus preventing the person from seeking and obtaining consular assistance from the sending State" (Judgment, para. 90).

This conclusion may be connected with the refusal on 23 February 1999 by the Arizona Superior Court in Pima County to entertain a further petition, as noted in the Judgment (para. 28). I fail to understand the factual situation underlying the Court's assertion that "the procedural default rule had the effect of preventing 'full effect [from being] given to the purposes for which the rights accorded under [Article 36 of the Convention] are intended', and thus violated paragraph 2 of Article 36" (Judgment, para. 91).

26. I am not convinced of the correctness of the Court's holding that the Vienna Convention on Consular Relations grants to foreign individuals any rights beyond those which might necessarily be implied by the obligations imposed on States under that Convention. In addition, I can-not but think that the Court holds the view that the Vienna Convention on Consular Relations grants more extensive protection and greater or broader individual rights to foreign nationals (in this case, German nationals in the United States) than would be enjoyed by nationals in their home countries (in this case, Americans in the United States).

If the Vienna Convention on Consular Relations is to be interpreted as granting rights to individuals, those rights are strictly limited to those corresponding to the obligations borne by the States under the Convention and do not include substantive rights of the individual, such as the rights to life, property, etc. I find the Judgment devoid of any convincing explanation of this point.

5. Subparagraph (5) of the operative part (Judgment, para. 128)

28. As stated in paragraph 21 above, compliance or non-compliance with the Order indicating provisional measures of 3 March 1999 does not fall within the scope of the present case, brought before the Court by Germany's Application of 2 March 1999 in respect of violations of the Convention on Consular Relations. Apart from this point, it appears to me that the Court has not properly understood the meaning of the indication of provisional measures. As stated above in paragraphs 15 to 17, the Court was mistaken in March 1999 in granting provisional measures.

29. The Court appears to be mostly concerned with the question of whether or not provisional measures indicated by it are binding. In the present Judgment, the Court dedicates as many as 25 paragraphs (paras. 92-116) to this issue. After summarizing the views of Germany and the United States (paras. 92-97), the Court attempts to explain at length in 19 paragraphs (paras. 98-116) why an order indicating provisional measures has binding effect or binding force.


30. Commencing with a general discussion of the meaning of Article 41, concerning provisional measures, of the Court's Statute, the Court states that [p 538]

"in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties ... a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty's object and purpose" (Judgment, para. 99).

Noting the difference between the authentic French text and the authentic English text, the Court then "consider[s] the object and purpose of the Statute together with the context of Article 41" (Judgment, para. 101). The Court goes on to state that:

"The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and, in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved." (Judgment, para. 102.)

The Court further states that:

"It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court." (Ibid.)

The Court immediately concludes that "[t]he contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article" (ibid.; emphasis added). I fail to find any affirmative reason in the above argument to support the binding force of an order for the indication of provisional measures.

31. As "[a] related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance" (Judgment, para. 103), the Judgment refers to the jurisprudence of the Permanent Court of International Justice in the 1939 case concerning Electricity Company of Sofia and Bulgaria (Electricity Company of Sofia and Bulgaria, Interim Measures of Protection, Order of 5 December 1939, P.C.I.J., Series A/B, No. 79, p. 194) and to many other orders of the present Court in which that case was cited (Judgment, para. 103). In my view, however, the "principle universally accepted by international tribunals and likewise laid down in many conventions" mentioned in that Order was nothing more than a general statement concerning provisional measures "to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execu-[p 539]tion of the decision to be given" (P.C.I.J., Series A/B, No. 79, p. 199) and cannot be interpreted as supporting the contention that an order on provisional measures has binding force.

32.The Court, though "not consider[ing] it necessary to resort to the preparatory work", "nevertheless point[s] out that the preparatory work of the Statute does not preclude the conclusion that orders under Article 41 have binding force" (Judgment, para. 104; emphasis added).

After stating that "the lack of means of execution and the lack of binding force are two different matters" (Judgment, para. 107) and quoting Article 94 of the United Nations Charter, which states that "[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party" (Judgment, para. 108), the Court concludes that "Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character" (ibid.; emphasis added). The present Judgment further states that

"none of the sources of interpretation . . . including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context [that is, the binding character of orders] and in the light of the object and purpose of the Statute" (Judgment, para. 109; emphasis added).

33. After this extensive discussion, which seems to me a rather vain and unproductive undertaking, the Court states that "[t]hus, [it] has reached the conclusion that orders on provisional measures under Article 41 have binding effect" (ibid.). I fail to understand either this roundabout method of analysis to which the Court dedicates as many as 25 paragraphs or the process by which that analysis led the Court to that conclusion.

34. In my view, addressing the general question as to whether or not an order indicating provisional measures "is binding" or "has binding force" is an empty, unnecessary exercise. I wonder what the Court really wants to say in holding that an order indicating provisional measures is binding. Is the Court trying to raise the question of responsibility of the State which allegedly has not complied with the order? This question has not arisen in the past jurisprudence of this Court. It suffices that provisional measures "ought to be taken" or, in the French, "doivent etre prises" (Statute, Art. 41). Whether an order indicating provisional measures has been complied with or not is decided by the Court in its judgment on the merits.

35. In paragraph 111 of the Judgment, the Court then considers the "the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999". After a [p 540] circuitous analysis the Court concludes that "under these circum-stances . . . the United States has not complied with the Order of 3 March 1999" (Judgment, para. 115), simply because Walter LaGrand was executed.


Even if I were to accept that the issuance of the Order indicating provisional measures of 3 March 1999 was a valid exercise of the Court's jurisdiction, I believe that that Order was complied with by the United States, which took all measures at its disposal in an attempt to respect the terms. At any rate, the stay of an execution, in this case of Walter LaGrand, could not be — and, in fact, was not — mandated by the Court in its Order indicating provisional measures. 1 reiterate: it is extraordinary that the Court, in its Order of 3 March 1999, determined not the rights and duties of a State but the rights of an individual. In any case, the question as to whether or not the Order of 3 March 1999 indicating provisional measures was complied with should never have been raised.

6. Subparagraph (6) of the operative part (Judgment, para. 128)

36.Given my opinion that there was no other violation of the Vienna Convention on Consular Relations on the part of the United States than its failure to notify the German consular officials without delay of the incident involving the LaGrand brothers and the fact that the United States did indeed take various measures to prevent the reoccurrence of that violation, 1 do not believe there is any more to be said on this subject in the Judgment. However, I voted in favour of this subparagraph for thesole reason that the statement in this subparagraph cannot cause any harm.

7. Subparagraph (7) of the operative part (Judgment, para. 128)

37. I am utterly at a loss as to what the Court intends to say in this subparagraph. My failure to understand may stem from the fact that I hold a diametrically different view on "the rights set forth in [the Vienna]Convention". However, I believe that the sole subject-matter of the Court's consideration should have been the violations of the Vienna Convention by a party to it, as explained in paragraphs 23 to 25 above.

(Signed) Shigeru Oda. [p 540]


Separate opinion of Judge Koroma

Issue of procedural default in relation to breach - Court's findings - Misgivings - Orders for provisional measures under the Court's Statute binding - Need for caution not to cast doubt on previous orders issued.

1. Although I support the Court's findings in this case, there are one or two conclusions about which I have some misgivings, in particular to the extent that they are also embodied in the operative paragraph of the Judgment.

2. Germany has asked the Court to adjudge and declare

"that the United States, by applying rules of its domestic law, in particular the doctrine of procedural default, which barred Karl and Walter LaGrand from raising their claims under the Vienna Convention on Consular Relations, and by ultimately executing them, violated its international legal obligation to Germany under Article 36, paragraph 2, of the Vienna Convention to give full effect to the purposes for which the rights accorded under Article 36 of the said Convention are intended".

3. In paragraph 125 of the Judgment, the Court states that it

"can determine the existence of a violation of an international obligation. If necessary, it can also hold that a domestic law has been the cause of this violation. In the present case the Court has made its findings of violations of the obligations under Article 36 of the Vienna Convention when it dealt with the first and second submission of Germany. But it has not found that a United States law, whether substantive or procedural in character, is inherently inconsistent with the obligations undertaken by the United States in the Vienna Convention." (Emphasis added.)

But then, the Court goes on to say that:

"In the present case the violation of Article 36, paragraph 2, was caused by the circumstances in which the procedural default rule was applied, and not by the rule as such." (Emphasis added.)

Earlier in the Judgment, the Court had stated as follows:

"Under these circumstances, the procedural default rule had the [p 542] effect of preventing 'full effect [from being] given to the purposes for which the rights accorded under this article are intended'" (para. 91; emphasis added).

4. Article 36, paragraph 2, of the Vienna Convention provides that:

"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 enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

The paragraph thus sets out how the rights referred to in paragraph 1 are to be exercised and the conditions for their application.

5. Among the rights set out in Article 36, paragraph 1, are the following: the right to request the competent authorities of the receiving State to inform the relevant consular post without delay of an arrest or detention; the right to have any communication addressed by a detained or arrested person forwarded to the relevant consular post by the receiving State authorities without delay; and the right of the sending State that its nationals be informed without delay of their right to consular notification. In my opinion, these rights are the rights referred to in Article 36, paragraph 2, of the Convention and they are obligations for the receiving State. For them to be violated therefore, the competent authorities of the receiving State must have failed to comply with them. Clearly, the breach of the obligation that occurred in the present case was caused neither by the procedural default rule nor by its application. It was not because of the procedural default rule that the LaGrand brothers were not informed in a timely manner of their rights to consular protection or assistance. In my view, neither the rule nor its application can be held in this regard to have violated Article 36, paragraph 2, of the Convention, as it was not the rule which prevented full effect being given to the rights under Article 36, paragraph 1. Indeed, as the Court itself has held, the doctrine of procedural default is not inherently inconsistent with the obligations assumed by the United States under the Convention. On the other hand, it is both inconsistent and unsustainable to hold that the violation of Article 36, paragraph 2, in the present case was caused by its application, and not by the rule as such. Having thus formulated its conclusion, the Court would appear to be saying that the rule is simultaneously both consistent and inconsistent with the United States obligations under the Convention. If, as the Court would appear to hold, the rule is a proper part of the United States criminal justice system, the Court cannot at the same time hold that its application on this occasion is the cause of the violation of the United States obligations. The point which the Court should have determined, in my view, was not whether aspects of the criminal process were the cause of the breach of the obligations, which they were not, but rather whether the obligations assumed under the Convention were breached as a result of the non-observance of the rele-[p 543]vant provisions. In other words, the breach of the relevant obligations would still have occurred to the extent that the relevant provision of the Convention had not been complied with irrespective of the criminal process.

6. But lest there be a misunderstanding of my position, I strongly subscribe to the position that everyone is entitled to benefit from judicial guarantees, including the right to appeal a conviction and sentence, and this position is universally shared by States. For me, the main issue which the Court is required to determine is whether the United States conduct, in not informing Germany and the LaGrand brothers promptly of their rights under the Convention, was inconsistent with the United States obligation to Germany under the Convention, as well as the appropriate remedies for that breach.

7. I also cannot concur entirely with the reasoning of the Court regarding its finding on Article 41 of the Statute. The real issue is whether the Order for Provisional Measures issued by the Court on 3 March 1999 was binding on the United States, and not the interpretation of Article 41 of the Statute which the Court decided to undertake. I do not think its jurisprudence on this matter was in doubt. Nor do I subscribe to the theory of the linguistic ambiguity of the said provision. In my view the meaning of the provision is clear and objective and there can be no fundamental misunderstanding as to its purpose and meaning. It is also part of the Statute of the Court. The object and purpose of an order for provisional measures is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision of the Court. It is for the Court to grant or reject a request for an order. It follows that, when an order is granted in accordance with the Statute, it is binding. Otherwise, there would be no purpose in making an order, or the purpose would be defeated. This is how I have understood the provision and this Judgment should be seen in that light and not as casting doubt, albeit unwittingly, on previous orders for provisional measures issued by this Court.

8. Finally, with regard to operative paragraph 128 (7) of the Judgment and as I have stated above, it is my understanding that everyone, irrespective of nationality, is entitled to the benefit of fundamental judicial guarantees, including the right of appeal or review against conviction and sentence, irrespective of nationality. In other words the judicial process must be fair and regular.

(Signed) Abdul G. Koroma. [p 544]


Separate opinion of Judge Parra-Aranguren

Article I of the Optional Protocol - Existence of a dispute as an essentially preliminary question - Definition of a dispute - There is no dispute between the Parties as to the breach by the United States of Article 36, paragraph 1 (b), of the Vienna Convention - No jurisdiction of the Court on this point - The claim made by Germany in its third submission does not arise out of the interpretation of the Vienna Convention but of Article 41 of the Court's Statute - No jurisdiction of the Court to decide this matter under Article I of the Optional Protocol.

1. I have voted against operative paragraph 128 (1), (2) (a), (2) (c) and (5) of the Judgment for the following reasons:

I

2. The Court bases its jurisdiction on Article I of the Optional Protocol concerning Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963 (hereinafter referred to as the "Optional Protoco1").

3. Article I of the Optional Protocol prescribes that

"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 a written application made by any party to the dispute being a Party to the present Protocol."

II

4. The existence of a dispute is a condition sine qua non established by Article I of the Optional Protocol for the compulsory jurisdiction of the Court. It is also required by the Statute of the Court. Article 38, paragraph 1, of the Statute states that the function of the Court in contentious cases "is to decide in accordance with international law such disputes as are submitted to it". Article 36, paragraph 2, and paragraph 1 of Article 40 also refer to the dispute between the Parties. Accordingly, the Court has stated that the existence of a dispute is an "essentially preliminary" question and that it is "the primary condition for the Court to [p 545] exercise its judicial function" (Nuclear Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974, p. 260, para. 24; pp. 270-271, para. 55).

5. The first submission of the Federal Republic of Germany (hereinafter referred to as "Germany") requests the Court to adjudge and declare inter alia

"(1) that the United States, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36 subparagraph 1 (b) of the Vienna Convention on Consular Relations . . ., violated its international legal obligations to Germany, in its own right . . ., under Articles 5 and 36 paragraph 1 of the said Convention."

6. The first sentence of the first submission of the United States of America (hereinafter referred to as the "United States") requests the Court to adjudge and declare that

"(1) There was a breach of the United States obligation to Germany under Article 36 (1) (b) of the Vienna Convention on Consular Relations, in that the competent authorities of the United States did not promptly give to Karl and Walter LaGrand the notification required by that Article . . ."

7. As recognized in many paragraphs of the Judgment, e.g., the first sentence of paragraph 39, the Parties agree that the United States did not inform the LaGrand brothers without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Vienna Convention, thus violating that provision. Paragraph 39 of the Judgment adds that the United States did not deny that such violation "has given rise to a dispute between the two States".

8. However, the Court explained in its Judgment of 11 June 1998 that

"'in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties . . .' (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99-100, para. 22); and that '[i]n order to establish the existence of a dispute, "It must be shown that the claim of one party is positively opposed by the other" (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and further, "Whether there exists an international dispute is a matter for objective determination" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)' (I.C.J. Reports 1995, p. 100)." (Land and Maritime Boundary between Cameroon [p 546] and Nigeria (Cameroon v. Nigeria). Preliminary Objections, I.C.J. Reports 1998, pp. 314-315, para. 87).

9. The Court has also stated that

"it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict." (South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p. 328.)

10. On the basis of these criteria, even assuming that the United States had not denied the existence of a dispute, it has not been shown objectively to the Court that the Parties maintain positively opposed positions on this point. On the contrary, as it appears from the submissions quoted above, they agree on the breach by the United States of its violation of Article 36, paragraph 1 (b), of the Vienna Convention. Therefore, in my opinion, the Court does not have jurisdiction under Article I of the Optional Protocol to decide whether the United States breached Article 36, paragraph 1 (b), when arresting the LaGrand brothers. Nor can the Court exercise its functions under Article 38, paragraph 1, of its Statute. For this reason I voted against operative paragraph 128 (1) and (2) (a) of the Judgment.

11. A different problem is the consequences of the violation by the United States of Article 36, paragraph 1 (b), of the Vienna Convention. The Parties disagree upon them. Therefore the Court has jurisdiction to decide that dispute under Article I of the Optional Protocol.

III

12. Germany's third submission requests the Court to adjudge and declare

"(3) that the United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international legal obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending". [p 547]

13. Germany, advancing the arguments summarized in the Judgment (para. 93), maintains that the measures indicated by the Court pursuant to Article 41 of its Statute are obligatory. This contention is disputed by the United States (para. 91 of the Judgment).

14. The majority of the Court states:

"The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). These difficulties have been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute." (Para. 99 of the Judgment.)

15. As the Judgment acknowledges, the dispute between Germany and the United States on this point arises out of the interpretation of Article 41 of the Court's Statute. Therefore, it is not a dispute arising out of the interpretation of the Vienna Convention as required by the Optional Protocol, which is the basis for the jurisdiction of the Court in the present case. Consequently, in my opinion, the Court does not have jurisdiction to decide Germany's third submission. For this reason I have voted against operative paragraph 128 (1), (2) (c) and (5) of the Judgment.

(Signed) Gonzalo Parra-Aranguren. [p 548]


Dissenting opinion of Judge Buergenthal

1. Since I find myself in disagreement with the Court's ruling that Germany's third submission is admissible, I regret that I must dissent from that part of the Court's Judgment.

2. In the submission, which I consider to be inadmissible, Germany requests the Court to adjudge and declare:

"that the United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending".

3. Germany filed its Application in this case, together with its request for provisional measures, at 7.30 p.m. The Hague time on 2 March 1999, some 27 hours before the scheduled execution of Walter LaGrand. On 3 March 1999, at 9.00 a.m. The Hague time, the Vice-President of the CourtFN1 met with the representatives of Germany and the United States to discuss the subsequent course of the proceedings. At this meeting Germany's representative asked the Court to indicate the requested provisional measures proprio motu pursuant to Article 75 of the Rules of Court and without holding any hearing on the subject. Responding to this request, the representative of the United States explained, inter alia:

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FN1 The President of the Court, Judge S. Schwebel of the United States, relinquished the presidency in this case pursuant to Article 32, of the Rules of Court.
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"that the United States would have strong objections to any procedure such as that proposed only that very morning by the repre-[p 549]sentative of Germany which would result in the Court making an Order proprio motu without having first duly heard the two Parties"2.

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FN2 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 13, para. 12.
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4. Article 74, paragraph 1, of the Rules of Court specifies that "[a] request for the indication of provisional measures shall have priority over all other cases", and paragraph 3 of that Article provides in part that "[t]he Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it".

Under Article 75, paragraph 1, of the Rules:

"The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties."

5. On 3 March 1999, at 7.15 p.m. The Hague time, the Court issued the Order for provisional measures requested by Germany. It did so without the prior hearing provided for in Article 74, paragraph 3, of the Rules, without an exchange of pleadings, and having before it only Germany's Application and request for provisional measures, which set out Germany's allegations in justification of its request.

6. In issuing the requested Order, the Court explained its decision to proceed in this ex parte fashion in the following terms:

"Whereas, the sound administration of justice requires that a request for the indication of provisional measures founded on Article 73FN3 of the Rules of Court be submitted in good time;

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FN3 Article 73 of the Rules of Court, which Germany had also invoked, reads as follows:

"1. A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made.

2. The request shall specify the reasons therefor, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party."
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"Whereas, Germany emphasizes that it did not become fully aware of the facts of the case until 24 February 1999 and that since then it has pursued its action at diplomatic level;

"Whereas, under Article 75, paragraph 1, of the Rules of Court, the latter 'may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties'; whereas a provision of this kind has substantially[p 550] featured in the Rules of Court since 1936, and whereas, if the Court has not, to date, made use of the power conferred upon it by this provision, the latter appears nonetheless to be clearly established; whereas the Court may make use of this power, irrespective of whether or not it has been seised by the parties of a request for the indication of provisional measures; whereas in such a case it may, in the event of extreme urgency, proceed without holding oral hearings; and whereas it is for the Court to decide in each case if, in the light of the particular circumstances of the case, it should make use of the said power."FN4

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FN4 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 14, paras. 19-21.
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7. The Court issued its Order only four hours before the scheduled execution of Walter LaGrand, which was to take place in the State of Arizona. The United States authorities were thus left with very little time to assess and act upon the Order with the deliberateness its gravity required under American law and constitutional practice applicable to federal-state relations as well as under international law. It is to be observed, however, that the Court was presented by Germany with claims regarding a set of facts that called for immediate action to save the life of a human being who had allegedly been deprived of his rights under international law. In light of these circumstances, it is difficult to fault the Court for issuing the Order in the manner it did. But there is no excuse for Germany's conduct in waiting until the last minute to seek the Order. This is so particularly since it is now clear that the grounds Germany alleged in justification of its late filing do not withstand scrutiny. The late filing, as will be shown below, had serious negative consequences for the position of the United States in defending its rights before this Court. In my opinion, these circumstances now require the Court to hold the third submission inadmissible.

8. Germany sought to excuse its last minute request for provisional measures on the ground that it did not know until 23 or 24 February 1999 that the authorities of the State of Arizona had been aware at least as far back as 1982 or 1984 that the LaGrand brothers were German nationals. In issuing its Order, the Court attached considerable importance to this claim. This is readily apparent from the specific reference the Court makes to Germany's claim in setting out the reasons motivating its decision and from the context within which the reference appears in its Order (see para. 6, above).

9. Even assuming that Germany's late filing could be justified on the ground advanced by it - something that is open to some doubt - the record now before the Court indicates that the information Germany [p 551] claimed it did not have was in fact available to Germany at least since 1993.

10. Germany learned in 1992 that the LaGrands had been arrested in 1982 and that they had been tried and convicted in Arizona in 1984. According to Germany, its involvement in this case begins with a prison visit to the brothers on 8 December 1992. It explained this involvement to the Court in the following words:

"In the following [after December 1992], Germany helped the brothers' attorneys to investigate the brothers' childhood in Germany, both by financial and logistical support, and to raise this issue and the omission of consular advice in Court proceedings."FN5 (Emphasis added.)

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FN5 Memorial of Germany, Vol. I, p. 11, para. 2.06.
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Among the court proceedings instituted by the LaGrands' lawyers in co-ordination with German consular officials was an appeal to the United States District Court for the District of Arizona, filed on 8 March 1993. "In these proceedings", according to Germany, "the attorneys raised for the first time the lack of consular advice and the violation of Art. 36 of the Vienna Convention on Consular Relations."FN6 In support of their claim, the attorneys provided the United States District Court on the same date with the presentence reports prepared in 1984 by the probation officials of Pima County, Arizona, in connection with the sentencing of the LaGrand brothersFN7. Each of these presentence reports stated very clearly that the LaGrands were German citizensFN8. The reports had been provided to the defence attorneys of the LaGrands a decade before and they formally acknowledged receipt of these reports in open court on 12 December 1984FN9.

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FN6 Ibid., p. 12, para. 2.07.
FN7 See Memorial of Germany, Vol. III, Ann. 46, p. 853, at 1009.
FN8 See Presentence Reports on Karl and Walter LaGrand, dated 2 April 1984, Memorial of Germany, Vol. II, Ann. 2, pp. 261 and 276.
FN9 See Memorial of Germany, Vol. II, Ann. 8, pp. 461-462.
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11. In other words, the information contained in the presentence reports, including the fact that the Arizona authorities knew as far back as the early 1980s that the LaGrands were German nationals, was known to the attorneys of the LaGrands by 1984, if not earlier. These attorneys filed the presentence reports with the United States District Court for Arizona in March 1993 in connection with their habeas corpus motion on behalf of the LaGrands. As of that date, these reports were available to Germany which, as we have seen, emphasized to this Court that it "helped the brothers' attorneys . . . to raise . . . the omission of consular advice" and "the violation of Art. 36 of the Vienna Convention on Con-[p 552]sular Relations" in the proceedings they instituted in 1993 (see para. 10 above).

12. The foregoing facts raise serious doubts about the legitimacy of Germany's contention in this Court that the late filing (on 2 March 1999) of its request for provisional measures was attributable to the fact that it discovered only on 23 February 1999 that the Arizona authorities knew as far back as 1984 that the LaGrands were German nationals. Even assuming that Germany did not actually know these facts, it certainly had no excuse for not knowing them, given its insistent claim in this Court of its close involvement in the LaGrand case after 1992 and its collaboration with the LaGrands' attorneys after that date, particularly in assisting them in raising issues relating to the Vienna Convention.

13. In its oral argument, Germany responded in the following terms to the contention of the United States that the 1984 presentence reports provided the answer to the question concerning the date when the Arizona authorities learned that the LaGrands were German citizens:

"the only question that makes sense at all in this context is whether German officials did or did not have easy access to the Presentence Reports in 1992 or thereafter. Although we do not attribute any conclusive weight to this issue, we can provide you with a clear answer. We have filed with the Court a Memorandum regarding the Presentence Reports issue in the LaGrand matter, drafted by the Federal Public Defender for the District of Arizona at the request of the German Consulate General in Los Angeles. Let me summarize what this Memorandum says: According to a local rule of the Pima County Superior Court, the Presentence Reports concerning Karl and Walter LaGrand were filed under seal and kept confidential even after sentencing. When the Federal Public Defender tried to locate this report in June of this year [2000], they could not be found. In the words of the Public Defender:

'The exhibits clerk at the superior court advised that the clerk did not have pre-sentence reports information on either LaGrand, and they had no idea where the pre-sentence reports were filed. It appears that the pre-sentence reports are not even in the superior court file.'

Mr. President, if not even the competent US authority managed to retrieve the reports, does it make sense to say, as the Counter-Memorial [of the United States] does, that it is 'hard to understand how these reports were not already familiar to German consular officers'? Can one really accuse a foreign consulate of negligence [p 553]when it failed to get hold of documents which could not even be traced by the competent local authorities?"FN10

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FN10 CR 2000/26, p. 38.
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14. The answer to the question counsel for Germany asked in the last sentence of the preceding paragraph is a resounding "yes". As we have seen, the presentence reports were in the possession of the LaGrands' attorneys and transmitted by them to the United States District Court in 1993. Moreover, even assuming that these reports were confidential or under seal after the conviction in 1984 of the LaGrands, they became a matter of public record when provided to the United States District Court. Since the reports were thus available to Germany by 1993, it is quite irrelevant that the Public Defender, quoted above by Germany, was unable allegedly to find them in the year 2000.

15. It is noteworthy, too, that between 1992, when Germany learned of the detention, trial and sentencing of the LaGrands, and the beginning of 1999, when Germany claimed that it found out for the first time that the Arizona authorities had known since the early 1980s that the LaGrands were German citizens, Germany never asked the United States Department of State to investigate the case of the LaGrands. Moreover, in 1998 the Department of State expressly invited all embassies in Washington "to bring possible failures of consular notification to its attention, so that it could investigate and take any appropriate action"FN11. Such an investigation, had it been requested by Germany consistent with the practice routinely followed in these types of cases, would have determined the date as of which the LaGrands' German nationality was known to the Arizona authorities. This information was in fact contained in the report prepared by the State Department following its own investigation of the case in 1999-2000FN12.

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FN11 Counter-Memorial of the United States, p. 51, para. 61.
FN12"Karl and Walter LaGrand. Report of Investigation into Consular Notification Issues." United States Department of State, 17 February 2000, Counter-Memorial of the United States, Exhibit 1, pp. 7-8.
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16. Germany's lack of diligence in ascertaining the facts it advanced to justify its late filing deprived the United States of an opportunity to be heard on Germany's request for provisional measures. What is more, it left the Court little choice but to accept on face value Germany's claim of its lack of knowledge, since the absence of a hearing prevented the United States from rebutting Germany's contention in this regard. Germany's conduct raises issues analogous to those the Court addressed in the case concerning Legality of Use of Force (Yugoslavia v. Belgium), [p 554] where Yugoslavia attempted to invoke a new basis of jurisdiction at a very late stage of the proceedings. In that case, the Court ruled as follows:

"Whereas the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court's practice; whereas such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and whereas in consequence the Court cannot, for purpose of deciding whether it may or may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999."FN13

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FN13 Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, para. 44.
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17. Germany's justification for its late filing, which the information now before the Court has shown to have been based on spurious claims, had the effect of obtaining a ruling from the Court that "seriously jeopardize[d] the principle of procedural fairness and the sound administration of justice". This result, as we have seen, was brought about because of Germany's lack of diligence. It alone justifies holding the submission inadmissible on the grounds invoked by the Court in Yugoslavia v. Belgium, above.

18. In addressing the issue of the admissibility of Germany's third submission, the Court makes the following finding (para. 57):

"The Court recognizes that Germany may be criticized for the manner in which these proceedings were filed and for their timing. The Court recalls, however, that notwithstanding its awareness of the consequences of Germany's filing at such a late date, it nevertheless considered it appropriate to enter the Order of 3 March 1999, given that an irreparable prejudice appeared to be imminent. In view of these considerations, the Court considers that Germany is now entitled to challenge the alleged failure of the United States to comply with the Order. Accordingly, the Court finds that Germany's third submission is admissible."

19. I have no disagreement with the Court's view that given the imminence of "an irreparable harm" in the instant case it was "appropriate" to enter the Order of 3 March 1999 on the facts then known to the Court. But it does not follow therefrom, contrary to what the Court says, that "in view of these considerations, the Court considers that Germany is [p 555] now entitled to challenge the alleged failure of the United States to comply with the Order". The fact that it was appropriate for the Court to issue the Order does not compel the admissibility of Germany's third submission once it is apparent that Germany's justification for its late filing is shown not to withstand scrutiny. It is to be regretted that the Court fails to address this issue since it bears directly on the admissibility of Germany's third submission.

20. Germany's negligence had other detrimental consequences for the United States, as far as concerns the Order of 3 March 1999. In its request for provisional measures, Germany asked the Court for an Order that tracked verbatim the language of the Court's Order of 9 April 1998 in the Breard caseFN14. When the Breard Order was before the United States Supreme Court, the Solicitor General of the United States explained why the Government believed that the Order was not binding. He made three points in this regard. He submitted, first, that "there is substantial disagreement among jurists as to whether an ICJ order indicating provisional measures is binding. See Restatement (Third) of Foreign Relations Law of the United States, Sec. 903, Reporter's Note 6, at 369-370 (1986). The better reasoned position is that such an order is not binding" FN15. The Solicitor General then attempted to show, by analysing Article 41 of the Statute of the Court, why that was the better reasoned view. The Solicitor General's second argument in support of the non-binding character of the Court's Article 41 orders was that:

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FN14 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 258, para. 41 (I).
FN15 Brief for the United States as Amicus Curiae, Republic of Paraguay v. Gilmore, Memorial of Germany, Vol. II, Ann. 34, p. 737.
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"the ICJ itself has never concluded that provisional measures are binding on the parties to a dispute. That court has indicated provisional measures in seven other cases of which we are aware; in most of those cases, the order indicating provisional measures was not regarded as binding by the respondent."FN16

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FN16 Ibid., p. 738.
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Finally, the Solicitor General argued that, even assuming that "parties to a case before the ICJ are required to heed an order of that court indicating provisional measures", the Order in the Breard case was not worded in mandatory termsFN17. Consistent with the view of the Solicitor General, the Supreme Court of the United States denied the stay of execution in [p 556] the Breard case called for by the Order of the International Court of Justice in that caseFN18.

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FN17 Ibid., p. 739.
FN18Breard v. Greene, Republic of Paraguay v. Gilmore, 118 S.Ct. 1352 (1998), 37 International Legal Materials (1998), p. 829.
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21. Germany was aware of the position of the United States Government regarding the non-binding character of orders of this Court indicating provisional measures in general and with its interpretation of the Order in the Breard case in particular

. It is difficult to understand, therefore, what Germany sought to achieve with its 2 March 1999 request for provisional measures. It certainly could not have been surprised that the United States would adopt the same position with regard to the requested order as it did in relation to the Breard Order of 9 April 1998. There was nothing in the order Germany requested on 2 March 1999 that would have provided the authorities of the United States with a legal basis justifying the Solicitor General to reverse his official position adopted less than a year earlier. In the absence of such a justification, it would have been unprecedented for him not to adhere to his earlier view. Moreover, and that is even more important, the Court itself had not in the meantime clarified its position on the subject. Consequently, when Germany asked the Court to proceed proprio motu and without a hearing, and sought an order identical to that the Court issued in the Breard case, Germany breached an obligation of elementary fairness it owed the United States in the circumstances of this case. It is true, of course, that a party in proceedings before this Court, as before any other court, must bear the consequences of having assumed, erroneously in retrospect, that a given order is non-binding and being held responsible for the resulting violation. But this fact does not relieve Germany of responsibility for having engaged in a litigation strategy prejudicial to the United States.

23. To summarize, the claim advanced by Germany to justify its late filing has been shown to be without merit. In fact, it is now clear that Germany had no good reason for not bringing its request for provisional measures to the Court at least a year or two earlier, if not much earlier. Its late filing did nevertheless have the consequence of preventing the [p 557] United States from being heard in a timely fashion on the German request for provisional measures. The absence of a hearing also deprived the United States of the opportunity to address the question of the binding character of the Court's orders and their effect on the laws of the United States. What is more, Germany sought an Order from this Court that it had every reason to anticipate the United States would consider to be non-binding and hence not requiring enforcement - a litigation strategy that is very difficult to understand unless that was its very purpose.

24. Accordingly, I consider that the manner in which Germany proceeded in obtaining the Court's Order of 3 March 1999 amounted to procedural misconduct prejudicial to the interests of the United States as a party to the instant proceedings. Such misconduct provides the requisite justification - it compels it, in my opinion - for declaring Germany's third submission inadmissible.

(Signed) Thomas Buergenthal.