2001

ICJ

Case concerning the Vienna Convention on Consular Relations Germany v USA Merits

(1-2) Germany requested the Court to adjudge and declare 1) The US, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under article 36, 1(b) of the Vienna Convention on Consular Relations and by depriving Germany of the 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 2) The US, by applying rules of its domestic law …. ultimately executing them, violated its international legal obligations to Germany 3) The US, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executing pending the final decision of the ICJ on the matter, violated its international legal obligation to comply with the Order on Provisional Measures 4) The US shall provide Germany an assurance that it will not repeat its unlawful acts … in particular in cases involving the death penalty (46-48) The US 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. It contends that Germany’s fourth submission “goes beyond any remedy that the Court can or should grant, and should be rejected…. The US 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 US consented when it ratified the Vienna Conventions”… The Court considers … 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 Chorzów, PCIJ, Series A, No. 9, p. 22) (65-78) 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”…. The US contends…. That the 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… 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 the Court by the national State of the detained persons, these rights were violated in the present case… The Court determines that article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded to 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. (92-116) Germany contended that “[p]rovisional [m]easures 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”…. The US … alleges …. “ [t]he language used by the Court in the key portions of its Order is not the language used to create binding legal obligations”…

The Court observes that the dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41 [of the Court’s Statute] … It therefore proceeds to the interpretation of that Article. It does so in accordance with customary international law reflected in Article 31 of the Vienna Convention of 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 giving to its terms in their context and in the light of the treaty’s object and purpose…. The Court note that in this text … the words “doiven être prises” have an imperative character … having regard to the fact that in 1920 the French text was the original version… finding itself faced with two texts which are not in total harmony [English version seems to lack mandatory effect] … it is appropriate to refer to paragraph 4 of Article 33 [VCLT] “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 object and purpose of the Statute is to enable the Court to fulfil the functions provided therein, and in particular, the basic funtion of judicial settlement of international disputes by binding decisions in accordance with article 59 …. that the power to indicate provisional measures entails that such measures should be binding, in as much a 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 judgement of the Court …. a related reason … is the existence of a principle which has already been recognized by the PCIJ 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 5 December 1939, PCIJ, Series A/B, No. 79, p, 199) For these reasons THE COURT, finds … (3) 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 USA breached its obligations to the Federal Republic of Germany and to the LaGrand brothers … (4) 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 USA breached its obligation to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 2, of the Convention…. (5) by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the ICJ in the case the USA breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court… (7) that should nationals if 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 USA, 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…. Declaration of President Guillaume …. Subparagraph (7) [commented on the operative part of the judgment] … subparagraph (7) does not address the position of nationals of other countries [different of Germany] or that of individual 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 applying an a contrario interpretation to this paragraph