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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One important purpose of this rule is to ensure that the state courts have an opportunity to address issues going lagrnad the validity of state convictions before the federal courts intervene.
For abundance of caution the ICJ did so nonetheless, and found nothing in the material that militated against the cawe it had reached. Thus, the delegation of Tunisia stated that it “regarded paragraph 1 b as one of the most important in the draft.
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 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.
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. 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.
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 cand thus violated these provisions of the Convention.
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.
Finally Article 36, paragraph 1 csets out the measures consular officers may take in rendering consular assistance to their nationals in the lagfand of the receiving State. Is it not obvious. Articles lacking in-text citations from February All articles lacking in-text citations All articles with unsourced statements Articles with unsourced statements from November All articles with dead external links Articles with dead external links from December Articles with permanently dead external links United States Supreme Court case articles without infoboxes.
In no way could it be said that the ICJ was converted into an appellate court in relation to domestic criminal proceedings. 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 aboveand which are thus covered by Article I of the Optional Protocol. And lzgrand 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”.
At the hearings, Germany further stated the following: Germany further contends that there is a causal relationship between the breach of Article 36 and the ultimate execution of icjj LaGrand brothers.
The Court need not decide whether this argument of the United States, if true, would result in the inadmissibility of Germany’s submissions. The applicant argued that the conduct of the US authorities also entailed a violation of individual rights under Art. In support of its position, Germany developed a number of arguments in which it referred to the “principle of effectiveness”, to lagrrand “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 1of the United Nations Charter”, to ivj 41 1of the Statute of the Court” and to the “practice of the Court”.
La Grand Case (F.R.G. v. U.S.), I.C.J. (June 27)
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.
The formulation of this last finding of the Court was probably intentionally flexible, but left several questions open for interpretation. In opposition to the German submissions, the United States argued that the Vienna Convention did not grant rights to individuals, only to states; that the convention was meant to be exercised subject to the laws of each state party, which in the case of the United States meant subject to the doctrine of procedural default; and that Germany was seeking to turn the ICJ into an international court of criminal appeal.
The Hague timeGermany filed in the Registry of this Court the Application instituting the present proceedings against the United States see paragraph 1 aboveaccompanied by a request for the following provisional measures: 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. 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.
Significantly, this subparagraph ends with the following language: Germany’s inability to render prompt assistance was, in its view, a “direct result of the United States’ breach of its Vienna Convention obligations”. 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 The former is within the jurisdiction of the Court under the Optional Protocol; the latter is not.
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”. This is not the law, and this is not how States or this Court have acted in practice.
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 bof the Convention “promptly to inform the LaGrand brothers that they could ask that a German consular post be notified of their arrest and detention”.
The Arizona clemency board recommended a stay to the governor, on the basis of the pending ICJ case; but the governor of Arizona ignored the recommendation and Walter LaGrand was executed on March 3, 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.
With a view to facilitating the exercise of consular functions relating to nationals of the sending State:. The treatment due to individuals [p ] is inextricably linked to and derived from the right of the State.
Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground. 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. It explores in more detail two aspects of the decision: A provision to this effect was inserted only at a later stage in the draft prepared lagrrand the Committee, following a proposal from the Brazilian jurist Raul Fernandes.
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. It has been speculated that this issue was settled by the ICJ because of the specific context of the case and it has lagrnd been assumed that the ICJ wanted, at this point in time, to equate its practice to that of the International Tribunal for the Law of the Sea ITLOS who had not had the binding nature of its orders questioned see Frowein at 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 ] and provisional, contribute to the exercise of a judicial function whose end-result is, by definition, the delivery of a judicial decision.
Their counsel at trial did not raise the issue of non-compliance with the Vienna Convention, jcj did not themselves contact the German consular authorities.
Melbourne Journal of International Law
The United States has criticized this list as misleading and inaccurate. The admission of cqse of non-repetition, general and specific, as a means of remedy for pagrand international wrongful act can be regarded as confirmation of the often neglected function of State responsibility as a means of controlling and ensuring legality in the international legal order.
Order of 5 March Fixing of time-limits: 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.
Public hearings were held from 13 to 17 Novemberat which the Court heard the oral arguments and replies of: 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”. 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”.
It is only where the rights of states and those of individuals substantially coincide that provisional measures may be available to offer some protection for the rights of individuals, whether they be human rights or otherwise. But no State could give such a guarantee and Germany does not seek it. 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.
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”. It concludes that, by not preventing the execution of Karl and Walter LaGrand, and by “making irreversible its earlier breaches of Art.