INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

LAGRAND CASE
(GERMANY v. UNITED STATES OF AMERICA)

JUDGMENT OF 27 JUNE 2001

2001

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE LAGRAND
(ALLEMAGNE c. ETATS-UNIS D’AMERIQUE)

ARRET DU 27 JUIN 2001
Official citation:

LaGrand (Germany v. United States of America),

Judgment, 1 C.J. Reports 2001, p. 466

Mode officiel de citation:

LaGrand (Allemagne c. Etats-Unis d'Amérique),

arrêt, C.LJ. Recueil 2001, p. 466

Sales number
ISSN 0074-4441 N° de vente:

ISBN 92-1-070921-7

822

27 JUNE 2001

JUDGMENT

LAGRAND
(GERMANY ». UNITED STATES OF AMERICA)

LAGRAND
(ALLEMAGNE c. ÉTATS-UNIS D'AMÉRIQUE)

27 JUIN 2001

ARRÊT
2001
27 June
General List
No. 104

466

INTERNATIONAL COURT OF JUSTICE

YEAR 2001

27 June 2001

LAGRAND CASE

(GERMANY v. UNITED STATES OF AMERICA)

Facts of the case.

* OF

Jurisdiction of the Court — Article 1 of Optional Protocol concerning Com-
pulsory Settlement of Disputes to Vienna Convention on Consular Relations of
24 April 1963.

Jurisdiction of Court in respect of Germany's first submission — Recognition
by United States of existence of dispute arising out of breach of subpara-
graph (b) of Article 36, paragraph 1, of Vienna Convention on Consular Rela-
tions — Recognition by United States of Court's jurisdiction to hear this dispute
in so far as concerns Germany's own rights — Objection by United States to
Court’s jurisdiction over Germany's claim founded on diplomatic protection —
Objection by United States to Court's jurisdiction over alleged breach of sub-
paragraphs (a) and (c) of Article 36, paragraph 1, of Convention.

Jurisdiction of Court in respect of Germany's third submission concerning
implementation of Order of 3 March 1999 indicating provisional measures.

Jurisdiction of Court in respect of Germany’s fourth submission — Objection
by United States — United States argument that submission seeking guarantees
of non-repetition falls outside terms of Optional Protocol.

* *

Admissibility of Germany's submissions.

United States objection to admissibility of Germany's second, third and
fourth submissions — United States argument that Court cannot be turned into
ultimate court of appeal in criminal proceedings before its own domestic courts.

United States objection to admissibility of Germany's third submission —
467 LAGRAND (JUDGMENT)

United States challenging manner of Germany's institution of present proceed-
ings before the Court.

United States objection to admissibility of Germany's first submission —
Allegation of failure to exhaust local remedies.

United States objection to Germany’s submissions — Allegation that Ger-
many seeking to apply standard to United States different from own practice.

ae *

Germany's first submission — Question of disregard by United States of its
legal obligations to Germany under Articles 5 and 36, paragraph 1, of Conven-
tion.

Submission advanced by Germany in own right — Recognition by United
States of breach of Article 36, paragraph 1 (b), of Convention — Article 36,
paragraph 1, establishing interrelated régime designed to facilitate implementa-
tion of system of consular protection.

Submission by Germany based on diplomatic protection — Article 36, para-
graph 1 (b), of Convention and obligations of receiving State to detained person
and to sending State.

* *

Germany's second submission — Question of disregard by United States of its
legal obligation under Article 36, paragraph 2, of Convention.

Argument of United States that Article 36, paragraph 2, applicable only to
rights of sending State.

“Procedural default” rule — Distinction to be drawn between rule as such and
application in present case.

* *

Germany’s third submission — Question of disregard by United States of
its legal obligation to comply with Order indicating provisional measures of
3 March 1999.

Court called upon to rule expressly on question of legal effects of orders
under Article 41 of Statute — Interpretation of that provision — Comparison of
French and English texts — French and English versions of Statute “equally
authentic” by virtue of Article 111 of United Nations Charter — Article 33,
paragraph 4, of Vienna Convention on Law of Treaties — Object and purpose
of Statute — Context — Principle that party to legal proceedings must abstain
from any measure which might aggravate or extend the dispute — Preparatory
work of Article 41 — Article 94 of United Nations Charter.

Question of binding nature of Order of 3 March 1999 — Measures taken by
United States to give effect to Order — No request for reparation in Germany's
third submission — Time pressure due to circumstances in which proceedings
were instituted.

+ x

Germany's fourth submission — Question of obligation to provide certain
assurances of non-repetition.

5
468 LAGRAND (JUDGMENT)

General request for assurance of non-repetition — Measures taken by United
States to prevent recurrence of violation of Article 36, paragraph I (b) —
Commitment undertaken by United States to ensure implementation of specific
measures adopted in performance of obligations under that provision.

Consideration of other assurances requested by Germany — Germany's char-
acterization of individual right provided for in Article 36, paragraph I, as
human right — Court's power to determine existence of violation of interna-
tional obligation and, if necessary, to hold that domestic law has caused viola-
tion — United States having apologized to Germany for breach of Article 36,
paragraph 1, of Convention — Germany not having requested material repara-
tion for injury to itself and to LaGrand brothers — Question of review and
reconsideration of certain sentences.

JUDGMENT

Present: President GuiLLAUME; Vice-President Sui; Judges Ona, BEDJAOUI,
RANJEVA, HERCZEGH, FLEISCHHAUFR, KOROMA,  VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOoUMANS, REZEK, AL-KHASAWNEH,
BUERGENTHAL; Registrar COUVREUR.

In the LaGrand case,
between

the Federal Republic of Germany,
represented by

Mr. Gerhard Westdickenberg, Director General for Legal Affairs and Legal
Adviser, Federal Foreign Office of the Federal Republic of Germany,

H.E. Mr. Eberhard U. B. von Puttkamer, Ambassador of the Federal Repub-
lic of Germany to the Kingdom of the Netherlands,

as Agents;

Mr. Bruno Simma, Professor of Public International Law at the University
of Munich,

as Co-Agent and Counsel;

Mr. Pierre-Marie Dupuy, Professor of Public International Law at the Uni-
versity of Paris (Panthéon-Assas) and at the European University Institute
in Florence,

Mr. Donald Francis Donovan, Debevoise & Plimpton, New York,

Mr. Hans-Peter Kaul, Head of the Public International Law Division,
Federal Foreign Office of the Federal Republic of Germany,

Mr. Daniel Khan, University of Munich,
Mr. Andreas Paulus, University of Munich,

as Counsel;
469 LAGRAND (JUDGMENT)

Mr. Eberhard Desch, Federal Ministry of Justice of the Federal Republic of
Germany,

Mr. S. Johannes Trommer, Embassy of the Federal Republic of Germany in
the Netherlands,

Mr. Andreas Gôtze, Federal Foreign Office of the Federal Republic of Ger-
many,

as Advisers;

Ms Fiona Sneddon,

as Assistant,
and

the United States of America,
represented by

Mr. James H. Thessin, Acting Legal Adviser, United States Department of
State,

as Agent;

Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs,
United States Department of State,

Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs,
United States Department of State,

as Deputy Agents;

The Honourable Janet Napolitano, Attorney General, State of Arizona,

Mr. Michael J. Matheson, Professor of International Law, School of
Advanced International Studies. Johns Hopkins University; former Act-
ing Legal Adviser, United States Department of State,

Mr. Theodor Meron, Counsellor on International Law, United States Depart-
ment of State; Charles L. Denison Professor of International Law, New
York University; Associate Member of the Institute of International Law,

Mr. Stefan Trechsel, Professor of Criminal Law and Procedure, University
of Zurich Facuity of Law,

as Counsel and Advocates;

Mr. Shabtai Rosenne, Member of the Israel Bar; Honorary Member of the
American Society of International Law: Member of the Institute of Inter-
national Law,

Ms Norma B. Martens, Assistant Attorney General. State of Arizona,

Mr. Paul J. McMurdie, Assistant Attorney General, State of Arizona,
Mr. Robert J. Erickson, Principal Deputy Chief. Appellate Section, Criminal
Division, United States Department of Justice,

Mr. Allen S. Weiner, Counsellor for Legal Affairs, Embassy of the United
States of America in the Netherlands,

Ms Jessica R. Holmes, Attaché, Office of the Counsellor for Legal Affairs,
Embassy of the United States of America in the Netherlands,

as Counsel,
470 LAGRAND (JUDGMENT)

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 Rela-
tions fof 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 Presi-
dent in the case, addressed the Government of the United States in the follow-
ing 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, 1 hereby draw the attention of [the] Gov-
ernment [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 |, of the Statute to all States
parties to the Vienna Convention or to that Convention and the Optional Pro-
tocol.

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 Gov-
ernment’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.

8
471 LAGRAND (JUDGMENT)

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 accord-
ance with paragraph 3 of that Article, to comment subsequently thereon and to
submit documents in support of those comments. That decision was duly com-
municated 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 ascer-
taining the views of the Parties, decided that copies of the pleadings and docu-
ments 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 Octo-
ber 2000 (see paragraph 6 above) and produced documents in support of those
comments.

*

10. In its Application, Germany formulated the decision requested in the fol-
lowing 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 Ger-
many, 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
472

(4)

LAGRAND (JUDGMENT)

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

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. execu-
tive, 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)

(2)

(3)

(4)

the criminal liability imposed on Karl and Walter LaGrand in viola-
tion of international legal obligations is void, and should be recog-
nized as void by the legal authorities of the United States:

the United States should provide reparation, in the form of compensa-
tion and satisfaction, for the execution of Karl LaGrand on 24 Feb-
ruary 1999;

the United States should restore the sfatus 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’ interna-
tional legal obligation took place; and

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:

10

“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

(D)

(2)

that the United States, by not informing Karl and Walter LaGrand
without delay following their arrest of their rights under Article 36
subparagraph 1 (}) 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 Ger-
many, in its own right and in its right of diplomatic protection of its
nationals. under Articles 5 and 36 paragraph | of the said Conven-
tion:

that the United States, by applying rules of its domestic law, in par-
473

LAGRAND (JUDGMENT)

ticular the doctrine of procedural default, which barred Karl and Wal-
ter 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 para-
graph 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 deci-
sion 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 deten-
tion of or criminal proceedings against German nationals, United
States domestic law and practice will not constitute a bar to the effec-
tive 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) (5) 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 Ger-

many 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 Rela-
tions, and by depriving Germany of the possibility of rendering con-
474

LAGRAND (JUDGMENT)

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;

that the United States, by applying rules of its domestic law, in par-
ticular the doctrine of procedural default, which barred Karl and Wal-
ter 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, para-
graph 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:

that the United States, by failing to take all measures at its disposal to
ensure that Walter LaGrand was not executed pending the final deci-
sion 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 convic-
tions 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:

(D

(2)

There was a breach of the United States obligation to Germany under
Article 36. paragraph 1 (4), 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

All other claims and submissions of the Federal Republic of Germany
are dismissed.”

%
* *

13. Walter LaGrand and Karl LaGrand were born in Germany in
475 LAGRAND (JUDGMENT)

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. How-
ever, 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 sen-
tenced 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 for-
warded 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 sen-
tenced, 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

13
476 LAGRAND (JUDGMENT)

the United States has therefore violated its obligations under this provi-
sion 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 | (6), 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 pro-
bation 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 con-
victions 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 Ari-
zona in 1990, and by the United States Supreme Court in 1991,

21. At the time of these two sets of proceedings, the LaGrands had

14
477 LAGRAND (JUDGMENT)

still not been informed by the competent United States authorities of
their rights under Article 36, paragraph | (5), of the Vienna Convention,
and the German consular post had 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 sub-
sequently 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 con-
sulate 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 judg-
ment was affirmed on appeal by the United States Court of Appeals,

15
478 LAGRAND (JUDGMENT)

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 Novem-
ber 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 proceed-
ings 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:

16
479 LAGRAND (JUDGMENT)

“The United States should take all measures at its disposal to
ensure that Walter LaGrand is not executed pending the final deci-
sion 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 Ari-
zona] 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 com-
mutation 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 Gover-
nor 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 circum-
stances 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
(C.F. Reports 1999 (1), p. 15, para. 26); it indicated provisional meas-
ures 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 pend-
ing the final decision in these proceedings, and should inform
the Court of all the measures which it has taken in implemen-
tation 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 Gover-
nor of Arizona, seeking inter alia to enforce compliance with this Court’s
Order indicating provisional measures. In the course of these proceed-
ings, 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

17
480 LAGRAND (JUDGMENT)

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, with-
out 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 Inter-
national 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 pro-
visions vis-a-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”.

a

37. The Court will first examine the question of its jurisdiction with
respect to the first submission of Germany. Germany relies on para-
graph | 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:

18
481 LAGRAND (JUDGMENT)

(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 com-
munication 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 send-
ing 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 con-
cerned 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 con-
verse and correspond with him and to arrange for his legal rep-
resentation. 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, consu-
lar 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 “pre-
vented 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) (4) 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, para-
graph | (a), second sentence, and by Article 36, paragraph | (5). Ger-
many accordingly claims that it “was injured in the person of its two
nationals”, a claim which Germany raises “as a matter of diplomatic pro-
tection 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 | (4), has given
rise to a dispute between the two States and recognizes that the Court has

19
482 LAGRAND (JUDGMENT)

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, para-
graph | (a) and (c), the United States however calls these claims “par-
ticularly misplaced” on the grounds that the “underlying conduct com-
plained of is the same” as the claim of the violation of Article 36,
paragraph 1 (5). 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 “[e]ven if a treaty norm and a customary norm were to have exactly
the same content”, each would have its “separate applicability”. It con-
tests 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 . . . [T]his 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 what-
ever 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 (6), and that
as a result, the Court should not only rule on the latter breach, but also
on the violation of paragraph | fa) and {c). Germany further asserts
“that ‘application of the Convention’ in the sense of the Optional Proto-
col 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 (5) does relate to the interpretation and appli-

20
483 LAGRAND (JUDGMENT)

cation of the Convention. This is also true of the dispute as to whether
paragraph | (4) creates individual rights and whether Germany has
standing to assert those rights on behalf of its nationals. These are con-
sequently disputes within the meaning of Article I of the Optional Pro-
tocol. 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 proceed-
ings on behalf of that national, on the basis of a general jurisdictional
clause in such a treaty. Therefore the Court concludes that it has juris-
diction 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 concern-
ing the binding nature of the Order of the Court of 3 March 1999 indi-
cating 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 ques-
tions “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 inte-
gral component of the entire original dispute between the parties”. More-
over, 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

21
484 LAGRAND (JUDGMENT)

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 Applica-
tion. As such it falls within the scope of the Court’s jurisdiction . . .”
(Fisheries Jurisdiction (Federal Republic of Germany v. Iceland}, Merits,
Judgment, 1 C.J. Reports 1974, p. 203, para. 72). Where the Court has
jurisdiction to decide a case, it also has jurisdiction to deal with submis-
sions 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.

x

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 “juris-
dictional 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” (LCJ. Reports 1998,
p. 256, para. 31).

22
485 LAGRAND (JUDGMENT)

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 rem-
edies 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 Chorzéw, P.C.LJ., Series À,
No. 9, p. 22). Consequently, the Court has jurisdiction in the present case
with respect to the fourth submission of Germany.

x OK

49. The United States has argued that the submissions of Germany are
inadmissible on various grounds. The Court will consider these objec-
tions 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 US law and errors of judgment by US judges” in criminal
proceedings in national courts.

51. Germany denies that it requests the Court to act as an appellate
criminal court, or that Germany’s requests are in any way aimed at inter-
fering 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 Con-
vention, and to draw from this failure certain legal consequences pro-
vided for in the international law of State responsibility.

52. The Court does not agree with these arguments of the United

23
486 LAGRAND (JUDGMENT)

States concerning the admissibility of the second, third and fourth Ger-
man 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 appli-
cable 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, ali three submissions seek to
require the Court to do no more than apply the relevant rules of inter-
national 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 Ger-
man 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 Feb-
ruary 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 authori-
ties 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 pro-
cedure followed was inconsistent with the principles of “equality of the

24
487 LAGRAND (JUDGMENT)

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 man-
ner 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 appro-
priate 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 pro-
cedurally barred in national courts and inadmissible in international tri-
bunals 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

25
488 LAGRAND (JUDGMENT)

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 posi-
tions. 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. Ger-
many 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 require-
ments 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 fash-
ion. However, the United States may not now rely before this Court on
this fact in order to preclude the admissibility of Germany’s first submis-
sion, 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

26
489 LAGRAND (JUDGMENT)

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 submis-
sions. 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 Ger-
many has itself proffered only an apology for violating Article 36 of the
Vienna Convention, and that State practice shows that this is the appro-
priate remedy for such a violation. But the cases concerned entailed rela-
tively 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.

x * x

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.

Pa

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 Rela-
tions, and by depriving Germany of the possibility of rendering con-
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 | of the said
Convention”.

27
490 LAGRAND (JUDGMENT)

66. Germany claims that the United States violated its obligation
under Article 36, paragraph | (5), 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 Ger-
many under Article 36, paragraph | (5), 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 | (5), 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 | (5), 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, para-
graph 1, become in practice irrelevant, indeed meaningless”. Germany
maintains that, “[b]y 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 | (5). 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

28
49] LAGRAND (JUDGMENT)

and the same conduct may result in several violations of distinct obliga-
tions”. Hence, when a detainee’s right to notification without delay is vio-
lated, he or she cannot establish contact with the consulate, receive visits
from consular officers, nor be supported by adequate counsel. “There-
fore, violation of this right is bound to imply violation of the other
rights . . . [and] later observance of the rights of Article 36, para-
graph | (a) and fc}, 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 Con-
vention 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, “[hlad 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, Ger-
many 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 proceed-
ings. According to the United States, these arguments “rest on specula-
tion” and do not withstand analysis. Finally, the United States finds it
extremely doubtful that the early childhood “mitigating evidence” men-
tioned 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 (4) in relation to Ger-

29
492 LAGRAND (JUDGMENT)

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 LaGrand
brothers. The Court concludes therefrom that on the facts of this case,
the breach of the United States had the consequence of depriving Ger-
many of the exercise of the rights accorded it under Article 36, para-
graph | (a) and paragraph | fe), and thus violated these provisions of
the Convention. Although the violation of paragraph | (5) 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 find-
ing, 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 régime 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. | (a)}. This clause is followed
by the provision which spells out the modalities of consular notification
(Art. 36, para. | (5)). 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 prac-
tical 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 pre-
vented by the breach of the United States from exercising them, had they
so chosen.

Fa

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 indi-
vidual 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 | (4), of the Vienna Convention, is an individual
right of every national of a State party to the Convention who enters the

30
493 LAGRAND (JUDGMENT)

territory of another State party. It submits that this view is supported by
the ordinary meaning of the terms of Article 36, paragraph | (5), 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 | (6), according to which it is for the arrested per-
son to decide whether consular notification is to be provided, has the
effect of conferring an individual right upon the foreign national con-
cerned. 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 prépara-
toires of the Vienna Convention lend further support to this interpre-
tation. In addition, Germany submits that the “United Nations Dec-
laration on the human rights of individuals who are not nationals
of the country in which they live”, adopted by General Assembly resolu-
tion 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 diplo-
matic 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 con-
sular 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 noti-
fication 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 fun-
damental 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 “[w]ith a view to facilitating the exer-
cise 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 | of that Article are intended
to ensure that nationals of the sending State have any particular rights or

31
494 LAGRAND (JUDGMENT)

treatment in the context of a criminal prosecution. The travaux prépara-
toires of the Vienna Convention according to the United States do not
reflect a consensus that Article 36 was addressing immutable indivi-
dual rights, as opposed to individual rights derivative of the rights of
States.

77. The Court notes that Article 36, paragraph | (6), 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 com-
munication 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 with-
out delay of Ais 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.LJ.,
Series B, No. 7, p. 20; Competence of the General Assembly for the
Admission of a State to the United Nations, Advisory Opinion, 1 CJ.
Reports 1950, p. 8; Arbitral Award of 31 July 1989, Judgment,
LCJ. Reports 1991, pp. 69-70, para. 48; Territorial Dispute (Libyan
Arab JamahiriyalChad), Judgment, 1 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 Ger-
many in this regard.

32
495 LAGRAND (JUDGMENT)

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 pur-
poses 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 viola-
tion 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 impos-
sible 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]
[cjriminal 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 US criminal
proceedings”.

82. Furthermore, having examined the relevant United States jurispru-
dence, 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”.

33
496

LAGRAND (JUDGMENT)

83. Finally, Germany states that it seeks

“[nJothing . .. 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:

“[t]he Vienna Convention does not require States Party to create a
national law remedy permitting individuals to assert claims involv-
ing 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 indi-
vidual 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 | shall be
exercised in conformity with the laws and regulations of the receiv-
ing 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,

34

“liJn 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 sen-
tence reviewed by appellate courts are also within the scope of this
provision.”
497 LAGRAND (JUDGMENT)

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 | — out of existence”.

88. Article 36, paragraph 2, of the Vienna Convention reads as fol-
lows:

“The rights referred to in paragraph 1 of this article shall be exer-
cised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and regu-
lations 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 ref-
erence 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 indi-
vidual (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, para-
graph 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 prob-
lem 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 | (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 pre-
vented them from attaching any legal significance to the fact, inter alia,
that the violation of the rights set forth in Article 36, paragraph 1, pre-
vented Germany, in a timely fashion, from retaining private counsel for

35
498 LAGRAND (JUDGMENT)

them and otherwise assisting in their defence as provided for by the Con-
vention. 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 vio-
lated 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 pro-
visional 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 “[p]rovisional [mJeas-
ures indicated by the International Court of Justice [were] binding by vir-
tue of the law of the United Nations Charter and the Statute of the
Court”. In support of its position, Germany developed a number of argu-
ments in which it referred to the “principle of effectiveness”, to the “pro-
cedural 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:

“Tajpart 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 judi-
cial 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

36
499

LAGRAND (JUDGMENT)

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 dis-
regard it would be tantamount, as far as the Parties are concerned,
to deviating from the principle of good faith and from what the Ger-
man pleadings call ‘the principle of institutional effectiveness’. . .
[Pirovisional 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 vio-
lation of the Court’s Order of 3 March 1999:

“(1) Immediately after the International Court of Justice had ren-
dered its Order on Provisional Measures, Germany appealed to the
US Supreme Court in order to reach a stay of the execution of Wal-
ter 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 US 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 US Supreme Court — an agency of the
United States — refused by a majority vote to order that the execu-
tion be stayed. In doing so, it rejected the German arguments based
essentially on the Order of the International Court of Justice on Pro-
visional 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 recommen-
dation 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 cir-

37
500 LAGRAND (JUDGMENT)

cumstances in which it was forced to act”. It points out in this connection
that the United States Government “immediately transmitt[ed] 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:

“[tJwo 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 “[t]he 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 contro-
versial legal question of whether its orders indicating provisional
measures would be capable of creating international legal obliga-
tions 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 effective-
ness”, 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 circum-
scribed 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-

38
501 LAGRAND (JUDGMENT)

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 poten-
tially quite dramatic, however. Germany appears to contend that by
merely filing a case with the Court, an Applicant can force a Respond-
ent to refrain from continuing any action that the Applicant deems
to affect the subject of the dispute. If the law were as Germany con-
tends, the entirety of the Court’s rules and practices relating to pro-
visional 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, “[blecause 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

“[t]hus, 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 sub-
mission 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 contro-
versy in the literature. The Court will therefore now proceed to the inter-
pretation 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 |
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 (| q

39
502 LAGRAND (JUDGMENT)

tances exigent, quelles mesures conservatoires du droit de chacun
doivent être prises à titre provisoire.

2. En attendant l'arrêt définitif, l'indication de ces mesures est
immédiatement notifiée aux parties et au Conseil de sécurité.”
(Emphasis added.)

In this text, the terms “indiquer” and “indication” may be deemed to be
neutral as to the mandatory character of the measure concerned; by con-
trast the words “doivent être 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 “indi-
cate” 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 mean-
ing equivalent to “order” and “must” or “shall”.

101. Finding itself faced with two texts which are not in total har-
mony, 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 authen-
tic 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 func-
tion 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

40
503 LAGRAND (JUDGMENT)

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 preju-
dice 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 Perma-
nent 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 exer-
cising 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.CLJ, Series AIB, No. 79, p. 199).

Furthermore measures designed to avoid aggravating or extending dis-
putes 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, L C.J. Reports 1973,
p. 106; Nuclear Tests (New Zealand v. France), Interim Protection,
Order of 22 June 1973, LC.J. Reports 1973, p. 142; Frontier Dispute,
Provisional Measures, Order of 10 January 1986, LC.J. Reports 1986,
p. 9, para. 18, and p. 11, para. 32, point | A; Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Provi-
sional Measures, Order of 8 April 1993, LC.J. Reports 1993, p. 23,
para. 48, and p. 24, para. 52 B; Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide, Provisional Measures,
Order of 13 September 1993, 1 C.J. Reports 1993, p. 349, para. 57, and
p. 350, para. 61 (3); Land und Maritime Boundary between Cameroon
and Nigeria, Provisional Measures, Order of 15 March 1996, LCI.
Reports 1996 (1), pp. 22-23, para. 41, and p. 24, para. 49 (1)).

104. Given the conclusions reached by the Court above in interpret-
ing 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

4l
504 LAGRAND (JUDGMENT)

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 où la cause du différend consiste en actes déterminés
déjà effectués ou sur le point de l'être, la Cour pourra ordonner,
dans le plus bref délai, à titre provisoire, des mesures conserva-
toires adéquates, en attendant le jugement définitif.” (Comité consul-
tatif de juristes, Procès-verbaux des séances du comité, 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, pro-
visionally and with the least possible delay, order adequate protec-
tive measures to be taken, pending the final judgment of the Court.”
(Advisory Committee of Jurists, Procés-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 Com-
mittee thus read as follows:

“Dans le cas ou la cause du différend consiste en un acte effectué
ou sur le point de l'être, la Cour a le pouvoir d'indiquer, si elle
estime que les circonstances l’exigent, quelles mesures conservatoires
du droit de chacun doivent être prises à titre provisoire.

En attendant son arrêt, cette suggestion de la Cour est immédiate-
ment transmise aux parties et au Conseil.” (Comité consultatif de
juristes, Procès-verbaux des séances du comité, 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

42
505 LAGRAND (JUDGMENT)

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 Com-
mittee of Jurists, Procés-verbaux of the Proceedings of the Commit-
tee, 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 “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-Com-
mittee 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 para-
graph 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. Hf any party to a case fails to perform the obligations incum-
bent upon it under a judgment rendered by the Court, the other
party may have recourse to the Security Council, which may, if it

43
506 LAGRAND (JUDGMENT)

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 meas-
ures; 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 provi-
sional measures, the first of which states that

“(t]he United States of America should take all measures at its dis-
posal 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

44
507 LAGRAND (JUDGMENT)

“transmit this Order to the Governor of the State of Arizona”. The infor-
mation 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 Coun-
sellor 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 indi-
cated. 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 authori-
ties 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 Gen-
eral’s categorical statement in his brief letter to the United States Supreme
Court that “an order of the International Court of Justice indicating pro-
visional 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, /nterna-
tional Legal Materials, Vol. 37 (1998), 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

45
508 LAGRAND (JUDGMENT)

Court’s Order had been transmitted, decided not to give effect to it, even
though the Arizona Clemency Board had recommended a stay of execu-
tion for Walter LaGrand.

114. Finally, the United States Supreme Court rejected a separate
application by Germany for a stay of execution, “[g]iven 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 interna-
tional 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 Jus-
tice 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 considera-
tion had Germany’s submission included a claim for indemnification.

eo

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

46
509

LAGRAND (JUDGMENT)

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:

“[cJoncerning the requested assurances and guarantees of non-repeti-
tion of the United States, they are appropriate because of the exist-
ence 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 con-
sular 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:

47

“Germany’s fourth submission is clearly of a wholly different
nature than its first three submissions. Each of the first three sub-
missions seeks a judgment and declaration by the Court that a viola-
tion 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-repeti-
tion sought in the fourth submission has no precedent in the juris-
prudence 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.”
510

LAGRAND (JUDGMENT)

It points out that “US 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:

and

“the German request for an assurance as to the duty to inform
foreign nationals without delay of their right to consular noti-
fication . . . 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”,

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:

“[wlith 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,

The

“[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 | (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.”

United States further observes that:

“[elven 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 inter-
national jurisprudence and would exceed the Court’s authority and
jurisdiction.”

120. The Court observes that in its fourth submission Germany seeks

48
511 LAGRAND (JUDGMENT)

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 recur-
rence.

Germany finally requests that

“lijn particular in cases involving the death penalty, this requires the
United States to provide effective review of and remedies for crimi-
nal convictions impaired by a violation of the rights under
Article 36”.

This request goes even further, since it is directed entirely towards secur-
ing 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 (5).
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 under-
standing 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

“[tJhis 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

49
512 LAGRAND (JUDGMENT)

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 require-
ments has been created.

122. Germany has stated that it “does not consider the so-called
‘assurances’ offered by the Respondent as adequate”. It says

“[vliolations of Article 36 followed by death sentences and execu-
tions 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
“fljist 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 apo-
logy 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 carry-
ing 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 proceed-
ings before this Court, repeatedly refers to substantial activities which it

50
513 LAGRAND (JUDGMENT)

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 | (6), 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 Ger-
many 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 vio-
lations 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 pro-
cedural 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 Ger-
many 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 crimi-
nal convictions impaired by the violation of the rights under
Article 36”.

The Court considers in this respect that if the United States, notwith-
standing 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

51
514 LAGRAND (JUDGMENT)

sentenced to severe penalties. In the case of such a conviction and sen-
tence, 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 indi-
vidual 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 | (6), 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;

52
515 LAGRAND (JUDGMENT)

(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 Ger-
many of the possibility, in a timely fashion, to render the assistance pro-
vided 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-

53
516 LAGRAND (JUDGMENT)

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 Inter-
national 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 (4), 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 | (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, Herezegh, 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 thou-
sand and one, in three copies, one of which will be placed in the archives

54
517 LAGRAND (JUDGMENT)

of the Court and the others transmitted to the Government of the Fed-
eral 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:

Subparagraph (7) of the operative part of the Court’s Judgment envis-
ages 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, para-
graph | (5), 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.

55