ASIL Insights

On April 9, 1998, the International Court of Justice (ICJ) issued an Order ruling, unanimously, that, pending final judgment in the case brought by Paraguay against the United States on April 3, 1998, the United States should take all measures at its disposal to prevent the execution on April 14, 1998 of Angel Francisco Breard, a Paraguayan citizen. Breard's execution was ordered by the Circuit Court of Arlington County, Virginia on February 25, 1998. The principal judicial organ of the United Nations acted under Article 41 of the ICJ Statute, which gives the 15-judge Court the power to indicate provisional measures of protection (a form of injunctive relief) in order to preserve the respective rights of the parties pending its final decision. This is the first death penalty case to reach the World Court. 

On April 3, 1998, Paraguay filed an Application with the ICJ Registry stating a dispute over alleged violations by the United States of the Vienna Convention on Consular Relations of April 24, 1963 (Vienna Convention). These violations arose out of the failure by the Commonwealth of Virginia-the state in which Breard was arrested, charged, tried, convicted of homicide and sentenced to death in 1993-to advise him of his right to communication with, and assistance from, the consular officers of Paraguay, as required by Article 36(1)(b) of the Vienna Convention. Consequently, Paraguay asked the Court to adjudge and declare that it is entitled to the re-establishment of the situation that existed before the United States, as the country responsible for the acts or omissions of its federal states, failed to provide the notification required by the Vienna Convention (i.e., the conviction and death penalty now imposed upon Breard should be revoked). Paraguay does not contend that Breard is not subject to re-trial or future prosecution for the acts with which he was charged, but rather that he should have the benefit of the provisions of the Vienna Convention in any renewed proceedings brought against him. 

Paraguay asserts that it did not learn of Breard's detention until 1996. Paraguay then brought proceedings against Virginia before the U.S. federal courts seeking the annulment of the proceedings initiated against its citizen. Both the federal court of first instance and the appellate court held that they had no jurisdiction because of the doctrine conferring sovereign immunity on federated states. Breard's own habeas corpus petitions also failed, because the federal doctrine of procedural default prevented him from raising Vienna Convention arguments for the first time in federal court. Petitions for a writ of certiorari requesting a stay of the execution filed by Paraguay and Breard with the U.S. Supreme Court are still pending. Less than five percent of all such petitions are granted. 

At the public hearings held in The Hague on April 7, 1998, the United States argued that, even though admittedly Breard had not been informed of his rights under the Vienna Convention, this omission was not deliberate and the assistance of Paraguayan consular officers would not have altered the outcome of the proceedings brought against him, so that in consequence he had not been prejudiced by the absence of notification. The alleged absence of injury to the accused in his trial and sentence also would affect the remedy for any failure of notification, which the United States claimed consists merely of diplomatic apologies presented by the responsible government-as it did in July 1997. 

Denying the existence of a "dispute" under the Vienna Convention, the U.S. pointed out that, in consultation with Paraguay, it has now taken steps to ensure future compliance with the Vienna Convention at both the federal and state level (including providing pocket-sized reference cards to law enforcement officers). It maintained that the invalidation of Breard's sentence and the return to the status quo ante sought by Paraguay has no foundation in the Vienna Convention or in state practice. It alleged that the indication of provisional measures would seriously disrupt the criminal justice systems of the states parties to the Vienna Convention and the workload of the ICJ, given the risk of proliferation of cases (according to some reports, there are over 30 foreign nationals currently on death row in U.S. prisons without having been notified of their right to consular access under the Vienna Convention). Finally, the United States pointed out that it is not able to stay Breard's execution, as this is in the hands of the U.S. Supreme Court and the Governor of Virginia. 

Paraguay invoked Article I of the Vienna Convention's Optional Protocol concerning the Compulsory Settlement of Disputes, to which both Paraguay and the United States are parties, as the basis of the Court's jurisdiction. According to Article I, disputes arising out of the application or interpretation of the Vienna Convention lie within the compulsory jurisdiction of the ICJ. 

When the Court is asked to indicate provisional measures, it makes a determination as to whether it has prima facie jurisdiction over the proceedings. In this case, the Court found that it does have prima facie jurisdiction given the existence of a dispute between Paraguay and the United States as to whether the specific relief sought by Paraguay is a remedy available under the Vienna Convention: this would constitute a dispute arising out of the application of the Vienna Convention within the meaning of Article I of the Optional Protocol. 

The important thing to understand about the incidental relief known as "provisional" or "interim" measures of protection in the ICJ is that, in order to issue an Order for such relief, the Court needs only to satisfy itself that prima facie jurisdiction exists in the case, and that unless such an Order were issued, there would be a risk of irremediable harm to the subject-matter of the case. Such an Order can never be taken itself as establishing jurisdiction in the case and, therefore, does not preclude a subsequent finding that the Court lacks jurisdiction or that the Application is inadmissible. 

Given that the existence of the relief sought by Paraguay under the Vienna Convention can be determined only at the merits stage, the Court found that the execution of Breard on April 14, 1998 would render it impossible for the Court to order, in a subsequent stage, the relief that Paraguay seeks, and thus would cause irreparable harm to the rights it claims. These circumstances justified the ordering of provisional measures as a matter of urgency. 

At the same time, the Court made it clear that the case does not concern the right of U.S. federal states to resort to the death penalty and that the Court's function is to resolve international legal disputes between sovereign states and not to act as a universal supreme court of criminal appeal. 

The Court's April 9 ruling leaves unaffected any future findings that the Court might make on its jurisdiction, the admissibility of Paraguay's Application or the merits, with regard to which the United States may advance any defenses in the subsequent stages of the proceedings. 

Also on April 9, 1998, the Court's Vice-President issued an Order fixing the following time limits: June 9, 1998 for the submission of the Memorial of Paraguay and September 9, 1998 for the filing of the Counter-Memorial of the United States. 

Pursuant to Article 94(1) of the UN Charter, each member state of the UN has undertaken to comply with the decision of the ICJ in any case to which it is a party. After the U.S. Supreme Court denied Breard's petition and the Governor of Virginia refused to stay the execution, Breard was executed on April 14. The consequent non-compliance of the United States with the Court's Order raises questions under Article 94 of the UN Charter. It is not clear whether an Order of the Court, as opposed to a Judgment, constitutes a "decision" that must be complied with at a stage where the Court's jurisdiction is still open to challenge by the state named as defendant. According to Article 94(2) of the Charter, if any party to a case fails to comply with a "judgment" rendered by the Court, the other party may petition the UN Security Council to take action to give effect to the judgment. 

Under the international law of State responsibility, compliance with the internal laws of the Commonwealth of Virginia and of the federal laws of the United States cannot relieve the U.S. from international responsibility for an admitted violation of the Vienna Convention and a potential violation of the UN Charter. The question of what specific remedy is available for a violation of the Vienna Convention is as yet unclear and is to be determined by the ICJ if it finds that it has jurisdiction in the current case. 

The full text of the decision may be found on the Internet at: http://www.icj-cij.org 

Peter H.F. Bekker and Keith Highet McDermott, Will & Emery New York, NY and Washington, DC