ASIL Insights

---

            On June 27, 2001, the International Court of Justice (the World Court) issued its judgment on the merits of the LaGrand Case (Germany v. United States).  Walter LaGrand and his brother, German nationals living in the United States, were arrested in Arizona in 1982 on suspicion of armed robbery and murder.  They were not informed of their rights under the Vienna Convention on Consular Relations, a multilateral treaty to which both Germany and the United States are parties.  Article 36, paragraph (1)(b) of the Convention provides:

            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 also be forwarded by the said authorities without delay.  The said authorities shall inform the person concerned without delay of his rights under this subparagraph.

            The brothers were convicted in an Arizona court and sentenced to death.  Their court-appointed counsel at the trial did not raise the issue of non-compliance with the Vienna Convention.  Nor was it raised on appeal or in the ensuing post-conviction proceedings in state courts.  It was eventually raised in a federal habeas corpus petition, but the petition was denied on the ground that the issue had not been properly raised in state court.

            The German government raised the issue in February 1999, practically on the eve of the scheduled execution of the two brothers.  Before the German government filed the proceeding against the United States in the World Court, Walter LaGrand's brother was executed.  The German government then filed the World Court proceeding on the day before Walter LaGrand's scheduled execution, seeking a judgment on the merits against the United States and requesting the Court to issue provisional measures of protection (like a preliminary injunction) to ensure that Walter LaGrand not be executed pending the final decision in the proceedings.  The next day, the Court issued the provisional measures calling on the United States to take all measures at its disposal to ensure that Walter LaGrand not be executed during the proceedings, but he was executed later that day.

            In its judgment on the merits on June 27, the World Court first held that it had jurisdiction.  It based its jurisdiction on Article I of the Optional Protocol attached to the Vienna Convention, which gives the Court jurisdiction over disputes arising out of the interpretation or application of the Convention.

            On a non-jurisdictional point concerning admissibility of the proceedings, the Court rejected a U.S. argument that the proceedings improperly asked the Court to "play the role of ultimate court of appeal in national criminal proceedings."  The Court said that Germany's application simply asked it to apply the relevant rules of international law to the issues in dispute between the parties, and not to act as a court of appeal.

            One of Germany's submissions asserted that the United States had violated its international legal obligation to comply with the order of provisional measures the Court had issued.  The United States argued that this submission was inadmissible because Germany had waited until the very eve of Walter LaGrand's execution to seek the provisional measures and thus had not given the United States an adequate opportunity to contest them or to comply with them.  The Court recognized that Germany could be criticized for waiting so long, but given the irreparable prejudice that appeared to be imminent (the execution of LaGrand), Germany was entitled to challenge the US failure to comply with the order.  The United States judge on the Court, Thomas Buergenthal, and two other judges dissented on this point.

            On the merits, the Court first held that the United States had breached its obligations to Germany under article 36, paragraphs (1)(a) and (c) of the Convention.  Those paragraphs give consular officers the right to communicate with nationals of the sending state and to have access to them, and give consular officers the right to visit a national of the sending state who is in prison, custody or detention.  The Court also held that article 36, paragraph (1)(b), quoted above, confers individual rights that may be invoked in the World Court by the national state of the detained person-in this case, rights of the LaGrand brothers that could be invoked by Germany.  Several cases in US courts (not involving the LaGrands) had considered whether article 36, paragraph (1)(b) conferred rights on individuals that could be asserted in a domestic court.  None of those cases squarely decided the issue.  The World Court ruling on this point would not automatically confer rights on individuals that could be asserted in a US court.  Nevertheless, a US court might consider it a persuasive interpretation of paragraph (1)(b) that could tip the scales in favor of enforceable individual rights in a future domestic case.

            The Court also held that although the "procedural default" rule in US law that had precluded habeas corpus relief does not in itself violate article 36 of the Vienna Convention, under the circumstances of this case it did violate article 36, paragraph 1.  The reason was that it had deprived Germany of the possibility of giving timely assistance to the LaGrands.  Their court-appointed counsel had not raised in the state court proceedings the denial of their right to communicate with their consulate, and the consulate was only made aware of the case (by the LaGrands themselves) after the state court proceedings had ended.  The Court said that the combination of (a) the failure to notify the LaGrands of their right and (b) the procedural default rule effectively prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defense.

            The Court's next ruling dealt with the legal effect of an order of provisional measures under article 41 of its own Statute.  In several cases, the Court has issued provisional measures without ever determining whether or not they are binding on the parties to the proceedings.  In this case, the Court for the first time made that determination.  The Court compared the English and French texts of article 41.  That article authorizes the Court to "indicate . . . provisional measures which ought to be taken to preserve the respective rights of either party" ("indiquer . . . mesures conservatoires du droit de chacun doivent être prises à titre provisoire").  The Court found the two versions not to be in total harmony.  It then considered the object and purpose of the Statute in the context of article 41.  It found that the object and purpose are to enable the Court to settle international disputes by binding decisions.  The context of article 41 is to prevent the Court from being hampered in the exercise of its functions if the respective rights of the parties to the case are not preserved.  "It follows," the Court said, "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 prejudice to, the rights of the parties as determined by the final judgment of the Court."  Consequently, the order of provisional measures created a legal obligation for the United States.

            The Court acknowledged that the United States government had very little time in which to comply with the provisional measures before the scheduled execution of Walter LaGrand.  Nonetheless, its mere transmission of the text of the Court's order to the Governor of Arizona failed to comply with the obligation in the order to take all measures at its disposal to ensure that he was not executed during the World Court proceedings.  The Court noted that it would have been open to the Supreme Court to grant a preliminary stay of execution in order to give time to consider all the issues involved.

            Germany's only remaining submission requested the Court to obtain US assurance that the violation of Vienna Convention article 36, paragraph (1)(b) would not be repeated.  The United States had given a commitment to ensure implementation of measures to comply with its obligations under that provision.  The Court said that the US commitment satisfied Germany's request.  Significantly, though, the Court went on to hold that should German nationals nonetheless be sentenced to severe penalties without their rights under Vienna Convention article 36, paragraph (1)(b) having been respected, 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."  United States courts until now have consistently declined to fashion such a remedy for violation of article 36, paragraph (1)(b).  Strictly speaking, the Court's holding on this point applies only to future cases involving German nationals in US courts, but the principle it represents could apply to nationals of any foreign country, and might apply to less severe sentences than the death penalty.  The President of the Court, Judge Gilbert Guillaume, suggested as much in a declaration appended to the judgment.  It remains to be seen, however, whether courts in the United States will now order retrials, or even rehearings on sentencing, in such cases.

           The judgment in the LaGrand case is available on the World Court's web site, <www.icj-cij.org>.

About the Author: 
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law.  He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.

_________________________________________________________________________ 
ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.