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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On 3 March a German national, Walter Burnhart LaGrand, was executed by cyanide gas in a correctional vase in Arizona in the United States for a criminal offence he committed in the mid s.
On 27 June the ICJ handed down its judgment on the merits. It was also an unprecedented opportunity for the ICJ to consider whether it was a toothless tiger so far as its interlocutory orders were concerned.
Oxford Public International Law: LaGrand Case (Germany v United States of America)
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.
It explores in more detail two aspects of the decision: In relation to the latter, it is suggested that the reasoning of the ICJ adheres to a teleological interpretation of article 36 rights. To this extent article 36 rights can give practical effect to fundamental human rights concerning fair criminal trial processes.
The LaGrand brothers were born in Germany and as children moved with their mother to the US where they remained permanently. Germany attached great significance to this failure, pointing to a causal connection between what it viewed as inadequate representation of the LaGrand brothers and their ultimate death sentences: Germany was only made aware of the detention of the LaGrands by the brothers themselves in A subsequent petition to the US Supreme Court for certiorari was denied.
After high level diplomatic efforts by Germany to prevent the execution of Karl LaGrand failed, Germany filed its application in the Registry of the ICJ instituting the proceedings and seeking provisional measures in relation to his brother, Walter.
On 3 Marchby 13 votes to one, the ICJ indicated two provisional measures,  the first occasion on which the ICJ has done so in the absence of an oral hearing of the parties. It should be noted that although the LaGrand Case also excited interest because European protestations as to the inhumanity of capital punishment appeared to have finally acquired an international legal vehicle, the case did not involve an examination of the merits or demerits of this form of punishment.
The most important of these may be dealt with briefly. Although the US had not raised preliminary objections to jurisdiction, as it was entitled to do under article 79 of the Rules of Court,  it nonetheless contested the jurisdiction of the ICJ at the hearing of the merits in relation to the consular assistance submission and the assurance and guarantee submission.
The ICJ considered that it had jurisdiction over the remedies requested by Germany in its assurance and guarantee submission as it was clear that a dispute over the appropriate relief arose out of the interpretation or application of the VCCR.
The US accepted that it had breached its obligation under article 36 1 b to inform the LaGrand brothers of their entitlement to request the notification of a German consular post of their arrest and detention.
The ICJ rejected these objections. It found that the dispute between the parties as to whether paragraph 1 b created individual rights, and as to whether Germany was entitled to espouse the claims of its nationals with respect to them, did relate to the interpretation and application of the VCCR.
The diametrically opposed views of Germany and the US on this issue reflect a divergence of views at a more fundamental level. In addition to challenging jurisdiction, the US also challenged the admissibility of all four submissions on a number of bases. The ICJ refused to uphold this objection, noting that although Germany made extensive reference to the administration of justice in the US, such reference was only in relation to submissions as to the application of relevant rules of international law by the ICJ to the issues in dispute.
In no way could it be said that the ICJ was converted into an appellate court in relation to domestic criminal proceedings. Germany made four submissions, as outlined above. Each of those submissions is considered below in turn. Issues of a different order were raised by the provisional measures submission — the ICJ was essentially concerned there with procedural issues.
Nonetheless, in cases such as the LaGrand Case and Breard Casewhere the rights of a state and its nationals are intertwined, these essentially procedural orders may, in the future, be a more effective mechanism for protecting substantive rights now that the ICJ has found that compliance with such interim orders is obligatory.
The US conceded that it had breached article 36 1 bhowever, no such concession was made with respect to subparagraphs a and c. It was said that when a sending state is unaware of the detention of its nationals due to the failure of the host state to provide the requisite notification, it follows that the sending state will be prevented from exercising its specific rights of communication and access contained in subparagraphs a and c.
More controversially, Germany submitted that the breach of article 36 1 entailed not only a violation of the VCCR vis-a-vis Germany but also the violation of individual rights conferred on the LaGrand brothers themselves.
Under this rule of international law one state may take up the claim of its nationals in relation to international wrongs committed by another state. In so doing the state exercising diplomatic protection is in reality asserting its own right to have its nationals treated consistently with international law. The submission was disputed by the US on the grounds that, while individuals may be the beneficiaries of obligations owed lagraand article 36, they could lavrand be endowed with any individual rights the infringement of which would permit Germany to assert diplomatic protection.
The ICJ did not, therefore, examine the extent to which customary international human rights law affected the interpretation or operation of article The ICJ considered it unnecessary laggrand deal with the detailed submissions by Germany on this issue in light of its conclusion that article 36, in terms, conferred individual rights the breach of which Germany could vindicate by exercising its rights of diplomatic protection.
This was an important opportunity missed. States Parties to the VCCR are only required lagrane extend the benefits of article 36 to nationals of other parties.
However, despite this apparent limitation in the scope of article 36, there are compelling reasons for regarding article 36 as conferring rights that have the character of human rights. However, while the IACHR advisory opinion makes such a purposive link explicit using the language of human rights, the ICJ found it unnecessary to venture into a discussion of human rights jurisprudence. Should provisions conferring human rights be interpreted and applied differently from other individual rights?
Should a treaty as a whole, if it is partly concerned with human rights, be interpreted and applied differently? While the ICJ explicitly refused to consider whether article 36 rights are human rights, it nonetheless adopted a similar human rights approach to that utilised by the IACHR, without making clear how the approach informed its reasoning.
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. In this claim Germany focused upon the domestic laws of the US, arguing that those laws manifestly failed to give effect to the requirements of article 36 1 as expressly required by article 36 2which provides that:.
In particular, it was argued that the types of laws to which article 36 2 are directed are those relating to rights under article 36 1such as communication and access, and not rules of criminal law permitting convicted persons to raise breaches of the VCCR in appellate proceedings.
However, it was rejected by the ICJ, which noted that the contention rested on the faulty assumption that article 36 2 is applicable only to the rights of the sending state as opposed to individual nationals themselves.
Conspicuously, the ICJ failed to outline these purposes. However, it can clearly be inferred that the ICJ considered those purposes to include allowing states every opportunity to assist in the representation of accused nationals before municipal criminal courts.
This interpretation of article 36, which suggests that the provision is designed to protect substantive human rights, rather than simply afford basic procedural rights of information and access, is not without controversy. It follows from the LaGrand decision that a core purpose of article 36 of the VCCR is to ensure fair criminal trial and sentencing, and not simply procedural rights of information and access.
Such a purposive provision takes on much of the character of a human right, although, as has been seen, the ICJ did not make this characterisation explicit. Rather, attention will be focused on the unprecedented conclusion that provisional measures are binding on States Parties. The issue of whether provisional measures are binding was one of the most controversial aspects of the LaGrand Case. Ultimately, however, it appears to have raised little dissent on the bench.
Clearly these were invitations to the ICJ to avoid the thorny question as to whether provisional measures could ever bind a state the subject of an order. The invitation was refused. Clearly there were a number of bases on which such a stay could have been granted by the Supreme Court. The ICJ noted that neither it nor the PCIJ had ever needed to resolve the question of bindingness, but that it was required to do so in this case.
That article provides, in the English version:. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. The terms of article 41 do not, on their face, appear to have a mandatory character. 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?
However, as Hugh Thirlway has noted, it is one thing to suggest that parties should not frustrate the judicial process, and quite another to suggest that parties are bound to follow a decision of the ICJ not to do so. For abundance of caution the ICJ did so nonetheless, and found nothing in the material that militated against the construction it had reached. This requirement seems highly relevant to the question of the status of provisional measures and their amenability to enforcement by the Security Council.
Before ordering provisional measures the ICJ need only satisfy itself that it has prima facie jurisdiction. However, this preliminary finding may cause serious consequences for a respondent state.
A respondent may be seriously prejudiced if it complies with the Order, yet be in breach of international law if it does not. Moreover, while in common law systems the price for an interlocutory injunction is usually an undertaking as to damages, which must be made good on threat of contempt, no such price is paid by a successful applicant for interim measures of protection on the international plane.
Should the ICJ determine in the merits phase that it does not have jurisdiction, a respondent state against which a provisional order has been made would seem to be without recourse or remedy.
Melbourne Journal of International Law
In the Passage through the Great Belt Case Denmark sought indemnification against loss from complying with provisional measures sought by Finland. The issue as dase whether or not such orders are binding is part of a much broader issue as to the precise juridical nature of interim orders. As provisional measures are designed to preserve rights of parties caee have not been definitively shown to exist, their bindingness cannot rest ijc the fact of the order alone. Hence they may be distinguished from final judgments which may declare the ifj of certain obligations under international law.
Are provisional measures only binding as a matter of treaty law? Are they binding by operation of a general principle of law of civilised nations? Unless such orders are given express binding force by the special agreement of the parties in submitting a case, or by the treaty establishing the court or tribunal, it is not at all clear that such orders derive binding force from general international law.
For the same reason that the procedural default rule prevented full effect being given to the purposes of the article 36 rights, so too does the deprivation of life when it follows a breach of article 36 and the refusal to permit review or reconsideration of lagranv and sentencing. Where a person has been deprived of their rights under article 36, protection of his or her life is a necessary corollary of protecting the purpose for which those rights were conferred; namely as an important procedural safeguard.
However, there is iicj important point of distinction. Do binding provisional measures ordered by the ICJ offer greater promise as a mechanism for protecting human rights?
The conclusion of the ICJ in the LaGrand Case that interim measures are binding does not alter the fact that the ICJ is an inherently unsuited forum for vindicating human rights. The jurisdiction of the ICJ over contentious cases may ixj exercised only with the consent of the parties, and individuals have no standing before the ICJ as claimants or respondents.
Accordingly, cases in which human rights arise as a subject of proceedings are rare, and those issues arise only indirectly.
As the LaGrand Case aptly illustrates, ich 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 to be used to lagrandd such individual rights. It was only because the rights of the LaGrand brothers and Germany coincided that Germany was able to assert its customary international law right to espouse the claims of its nationals.
Furthermore, a distinction needs to be drawn between the bindingness of orders and their enforcement. The ICJ did not express the view that provisional measures are amenable to enforcement by the Security Council in the same way as judgments of the ICJ. Where a human life is in the balance, enforcement assumes a particular importance. Restitutio in integrum, the normal remedy in international law, is obviously impossible in relation to breach of an obligation, imposed under an order of interim measures, to delay the execution of a foreign national.
At least with respect to certain subject matter that is susceptible to irreversible prejudice, a compelling moral argument may be made that provisional measures to preserve such subject-matter should be enforceable and enforced. It remains a point of contention whether laggrand Security Council could act to enforce orders latrand such circumstances, unless it is in a position to determine the existence of a threat to international peace and security and act pursuant to Chapter VII of the UN Charter.
Germany did not seek reparation for the illegal acts of the US in respect of the LaGrand brothers. In one of the most important passages of its judgment the ICJ stated. The ICJ has effectively concluded that where a national of a sending state has been subject to prolonged detention or has been sentenced to severe penalties it is only by belated attention to the purposes for which article 36 rights were conferred that there can be an effective remedy for the prior breach of those rights.
By reaching the conclusion that provisional measures ordered by it are binding the ICJ has significantly enhanced its standing as the principal judicial organ of the UN. It has now found itself to possess an essential incident of an effective judicial body: In order to ensure that the system remains workable, the ICJ will need to consider proposals such as that by its former Registrar, Thirlway, for imposing conditions on the grant of such measures so as to protect the rights of respondent states.