On June 27, , the ICJ, rejecting all of the United States’ arguments, ruled in favor of Germany. The ICJ held that the Vienna. 1 LaGrand (Germany v United States of America) (hereafter ‘LaGrand Case’) may Not only did the ICJ state, for the first time in the history of its existence, the. The German’s (P) case involved LaGrand and his brother who were executed before the matter came to the I.C.J. the Court found that the U.S. (D) had breached.
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The Court will now consider the Order of 3 March Quite largand 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 ] and foreign tourists or other short-term visitors.
The diametrically opposed views of Germany and the Laagrand on this issue reflect a divergence of views at a more fundamental level. 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 ] the rights under Article 36 of the Vienna Convention on Consular Relations.
The ICJ also found that its own provisional measures were legally binding. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. Be that as it may, the ICJ decided to grant that request without seeking to justify that form of remedy with its earlier jurisprudence or State practice.
In the case, the ICJ found that its own temporary court orders were legally binding and that the rights contained in the convention could not be denied by the application of domestic legal procedures.
Furthermore, a distinction needs to be drawn between the bindingness of orders and their enforcement. The respondent did not deny that the rights of Germany under Art.
The draft Article 2bis as submitted by the Drafting Committee thus read as follows: Having made this determination, the Court casf not deem it necessary to examine whether those rights were, as argued by Germany, also part of the international standard of due process and therefore to be treated as human rights. Yet it would have been open to the Supreme Court, as one of its members urged, to grant a preliminary stay, casw would have given it “time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved.
All Judges ad hoc. Whether provisional measures are binding was an issue upon which the ICJ had not previously been required to adjudicate, and which has been a source of considerable controversy among commentators.
On behalf of the Government of Germany, in the Memorial: In this regard, the fact that in Articles ifj to 60 of the Court’s Statute, both the word “decision” and the word “judgment” are used does little to clarify the matter.
That is a new obligation, and it does not arise out of the Vienna Convention. Daniel Khan, University of Munich; Mr.
What then is the object and purpose of the Statute of the ICJand are there any other bases for concluding that provisional measures are binding? The Court cannot accept the United States objections. 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.
That Article reads as follows: This request does not specify the means by which non-repetition is to be assured. By a letter dated 2 Marchthe Vice-President of the Court, acting President in the case, addressed the Government of the United States in the following terms: It also maintains that in the period betweenwhen 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.
Germany further alleged that failure to inform the LaGrand brothers of their right also violated individual rights conferred on the detainees by the second sentence of Art.
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 caes the Vienna Convention. Any errors remain those of the author. There is no suggestion in the text of Article 36 2 that the rules of criminal law and procedure under which a icu would be tried or have his conviction and sentence reviewed by appellate courts are also within the scope of this provision.
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’.
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”.
Melbourne Journal of International Law
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,Vol. The submission was disputed by the US on the grounds that, while individuals may be the beneficiaries of obligations owed under article 36, they could not be endowed with any individual rights the infringement of which would permit Germany to assert diplomatic protection.
At the oral proceedings, the following submissions were presented by the Parties: Ultimately it might have encouraged the Mexican government one and a half years later to seek review and reconsideration for its nationals on death row, who had allegedly been sentenced in violation of the VCCR. Clearly there were a number of bases on which such a stay could have been granted by the Supreme Court. The ICJ has adopted an interpretation that emphasises the purposes and ends served by article 36, rather than simply the basic procedural rights the article mandates.
The Court need not decide whether this argument of the United States, if true, would result in the inadmissibility of Germany’s submissions.
La Grand Case (F.R.G. v. U.S.), I.C.J. (June 27)
If necessary, it can also hold that a domestic law has been the cause of this violation. As the LaGrand Case aptly illustrates, it is only where individual rights are coterminous with, or closely related to, the rights of states that there exists any opportunity, however imperfect, for interim measures ordered by the ICJ casr be used to protect such individual rights.
Moreover, Germany contends that its third submission also implicates “in an auxiliary and subsidiary manner. Finally Article 36, paragraph 1 csets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State.
First it seeks a straightforward assurance that the United States will not repeat its unlawful acts. Les ordonnances en indication de mesures conservatoires rendues par la Cour internationale de Justice dans les affaires Breard Paraguay c. The US conceded that it had breached article 36 1 bhowever, no such concession was made with respect to subparagraphs a and c. 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 January and early Februaryvarious interventions were made by Germany seeking to prevent the execution of the LaGrands. Original Language Translation bilingual version Translation. It had been adopted pursuant to Article 41 of the Statute.