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LaGrand

Published online by Cambridge University Press:  27 February 2017

William J. Aceves
William J. Aceves*
Affiliation:
California Western School of Law
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Abstract

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Keywords

Vienna Convention on Consular Relationsduty to inform foreign nationals of right to consular assistanceduty to provide review of criminal proceedings where rights under the Vienna Convention are deniedlegal effect of ICJ provisional measures orders
Type
International Decisions
Information
American Journal of International Law , Volume 96 , Issue 1 , January 2002 , pp. 210 - 218
Copyright
Copyright © American Society of International Law 2002

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References

1 Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, 596 UNTS 261 [hereinafter Consular Relations Convention]. Article 36 (1) of the Consular Relations Convention provides “ [w] ith a view to facilitating the exercise of consular functions relating to nationals of the sending State:”

  • (a)

    (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 communication with and access to consular officers of the sending State;

  • (b)

    (b) 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 sub-paragraph;

  • (c)

    (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. 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 judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2 LaGrand (Ger. v. U.S.), Provisional Measures (Int’l Ct. Justice Mar. 3,1999) [hereinafter LaGrand provisional measures order]. The decisions, pleadings, press releases, and basic documents of the International Court of Justice (ICJ) are available online at <http://www.icj-cij.org>.

3 Federal Republic of Germany v. United States, 526 U.S. 111 (1999). See Aceves, William J., Case Report: Case Concerning the Vienna Convention on Consular Relations [LaGrand case]!, 93 AJIL 924 (1999)CrossRefGoogle Scholar.

4 LaGrand (Ger. v. U.S.) (Int’l Ct. Justice June 27, 2001) [hereinafter LaGrand judgment]. Six judges attached separate declarations or opinions to the decision. Judge Oda dissented on jurisdictional and other grounds. Judges Parra-Aranguren and Buergenthal dissented in part.

5 Application Instituting Proceedings Submitted by the Federal Republic of Germany (Mar. 2,1999), LaGrand judgment, supra note 4.

6 Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 UST 325, 596 UNTS 487.

7 Request for the Indication of Provisional Measures of Protection Submitted by the Government of the Federal Republic of Germany, LaGrand judgment, supra note 4.

8 LaGrand provisional measures order, supra note 2, para. 29.

9 Federal Republic of Germany v. United States, 526 U.S. I l l (1999).

10 At the request of the State Department, both the Justice Department and the Arizona attorney general participated in the oral proceedings. In addition, several international law scholars—including Michael Matheson, Theodor Meron, Shabtai Rosenne, and Stefan Trechsel—represented the United States.

11 Verbatim Record, LaGrand (Ger. v. U.S.), ICJ Doc. CR 2000/30, sec. VIII (Nov. 16,2000) .Under Article 60 (2) of the Rules of Court, a party must read its final submissions at the conclusion of its last statement made at the hearing.

12 LaGrand judgment, supra note 4, para. 74.

13 “Although the violation of paragraph 1 (b) 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” Id., para. 73.

14 Id., para. 74.

15 Id., para. 77.

16 Id., para. 78.

17 The procedural default rule precludes a defendant from raising a claim on appeal that was not raised in earlier proceedings.

18 LaGrand judgment, supra note 4, para. 90.

19 At, para. 91.

20 Consular Relations Convention, supra note 1, Art. 36(2).

21 The Court interpreted Article 41 in accordance with customary international law, as reflected in the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, reprinted in 8 ILM 679 (1969). Under Article

31 of that Convention, a treaty must be interpreted in accordance with the ordinary meaning given to its terms in their context and in the light of the treaty’s object and purpose.

22 The English text of Article 41 provides:

  • 1.

    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.

    2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

The French text of Article 41 provides:

  • 1.

    1. La Cour a lepouvoir d’indiquer, si elk estime que Us circonstances I’exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire.

  • 2.

    2. En attendant l’arrêt définitif, Vindication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité.

23 LaGrand judgment, supra note 4, para. 101. Under Article 33(4) of the Vienna Convention on the Law of Treaties, “when a comparison of the authentic 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.”

24 LaGrandjudgment, supra note 4, para. 102.

25 Id., para. 103 (quoting Electric Co. of Sofia and Bulgaria, Order, 1939 PCIJ (Ser. A/B) No. 79, at 199 (Dec. 5)).

26 Id., para. 110.

27 Id., para. 112.

28 The Court noted, id., that the advice of the solicitor general in the earlier Breard case, Breard v. Greene, 523 U.S. 371 (1998), was more nuanced on this issue and had indicated, in fact, that the matter was unresolved. See Agora: Breard, 92 AJIL 666 (1998).

29 LaGrand judgment, supra note 4, para. 115.

30 Id., para. 124.

31 Id.

32 Id., para. 125. While the Court’s opinion did not address the position of nationals of other countries or that of individuals sentenced to penalties that are not of a severe nature, President Guillaume indicated in his separate declaration that “there can be no question of applying an a contrario interpretation to this paragraph.” Id., Decl. Guillaume, P. Judge Koroma echoed these concerns, indicating that “everyone, irrespective of nationality, is entided to the benefit of fundamental judicial guarantees.” Id., Sep. Op. Koroma.J., para. 8.

33 LaGrand judgment, supra note 4, para. 63.

34 Verbatim Record, LaGrand (Ger. v. U.S.), ICJ Doc. CR 2000/26, Simma statement, para. 7 (Nov. 13, 2000).

35 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion No. OC-16/99, paras. 122, 124, 136 (Inter-Am. Ct. Hum. Rts. 1999) [hereinafter IACHR advisory opinion]; see Aceves, William J., Case Report: The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law!, 94 AJIL 555 (2000)CrossRefGoogle Scholar.

36 LaGrand judgment, supra note 4, para. 125.

37 See generally Gross, Oren & Ní Aoláin, Fionnuala, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 23 Hum. Rts. Q. 625 (2001)CrossRefGoogle Scholar; Benvenisti, Eyal, Margin of Appreciation, Consensus, and Universal Standards, 31 N .Y.U.J. Int’l L. & Pol. 843 (1999)Google Scholar.

38 IACHR advisory opinion, supra note 35, para. 137.

39 See generally Szabo, Eelco, Provisional Measures in the World Court: Binding or Bound to Be Ineffective? 10 Leiden J. Int’l L. 475 (1997)CrossRefGoogle Scholar; Oxman, Bernard H., Jurisdiction and the Power to Indicate Provisional Measures, in The International Court of Justice at a Crossroads 323 (Damrosch, Lori F. ed., 1987)Google Scholar.

40 While the Court expressed concern over the manner in which Germany brought the application and request for the indication of provisional measures, only Judges Oda and Parra-Aranguren voted against this portion of the judgment. Although Judge Buergenthal voted against the admissibility of Germany’s submission regarding the provisional measures order for this reason, he nevertheless voted to recognize the U.S. breach.

41 See Addo, Michael K., Vienna Convention on Consular Relations, 48 Int’l & Comp. L.Q. 673, 680 (1999)Google Scholar.

42 On Oct. 31, 2001, President Guillaume indicated in remarks to the UN General Assembly that, as a result of the Court’s ruling on the binding nature of provisional measures, “these measures will as a result be better executed than when the matter was subject to doubt.” See Press Release 2001/31 (Int’l Ct. Justice Oct. 31, 2001).

43 Breard v. Greene, 523 U.S. 371, 375 (1998).

44 See, e.g., United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en banc); United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000) (en banc).

45 See supra note 28 and accompanying text.

46 See supra note 3 and accompanying text.

47 See, e.g., United States v. Minjares-Alvarez, 264 F.3d 980 (10th Cir. 2001); State v. Issa, 93 Ohio St. 3d 49 (2001); State v. Lopez, 633 N.W.2d 774 (2001).

48 In September 2001, the Oklahoma Court of Criminal Appeals stayed the execution of a Mexican national, in part because of the purported Consular Relations Convention violation and the broader implications of the ICJ’s ruling. In a brief statement, the court announced the stay of execution, indicating that “[t]his court has before it a unique and serious matter involving novel legal issues and international law.” See Okla. Court Postpones Execution of Mexican; International Law Cited in Ruling, Wash. Post, Sept. 11, 2001, at A16.