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Published online by Cambridge University Press: 06 March 2019
In its judgement from June 27, 2001, in the LaGrand Case (Germany v. United States of America), the International Court of Justice made a number of watershed rulings: (a) The Court established that Article 36(1) of the Vienna Convention on Consular Relations creates individual rights for foreign nationals abroad, and not just rights protecting the interests of states that are a party to the Convention; (b) The Court ruled that, beyond the undisputed failure on the part of the U.S. to take the measures required by the Convention, the application of an American provision of criminal procedure in the LaGrand brothers' cases (a provision that prevented the domestic courts from reviewing the implications of the Convention violation admitted by the Americans) itself constituted a violation of Article 36(2) of the Convention; (c) The Court, as a remedy in the case of future violations of the Convention, ordered the United States to provide a procedure for the review and reconsideration of convictions secured in circumstances in which the obligations of the Convention had not been observed; and (d) as a separate matter the Court ruled that its provisional orders, issued pursuant to Article 41 of the Statute of the International Court of Justice, have binding effect.
(1) LaGrand Case (Germany v. United States of America) www.icj-cij.org 11 (Judgement of June 27, 2001).Google Scholar
(2) Id.Google Scholar
(3) The United States challenged the Court's jurisdiction over and the admissibility of Germany's submissions. See, LaGrand Case (Germany v. United States of America) www.icj-cij.org s 37–63 (Judgement of June 27, 2001). These procedural matters receive considerable attention, particularly the question of the Court's jurisdiction, in the concurring and dissenting opinions to the Court's majority decision. See, e.g., Id. (Dissenting Opinion, Oda, Judge); Id. (Concurring Opinion, Parra-Aranguren, Judge); Id. (Dissenting Opinion, Buergenthal, Judge).Google Scholar
(4) LaGrand Case (Germany v. United States of America) www.icj-cij.org 75 (Judgement of June 27, 2001).Google Scholar
(5) LaGrand Case (Germany v. United States of America) www.icj-cij.org 77 (Judgement of June 27, 2001). The Court emphasized the plain language (a rule repeatedly asserted in its jurisprudence on the interpretation of Treaties) of Article 36(1)(b) in concluding that the Convention created individual rights for the nationals of a sending State as well as rights for the sending State itself: “Significantly, this subparagraph ends with the following language: ‘The said authorities shall inform the person concerned without delay of his rights under this subparagraph’ (emphasis added).” Id. The Court found further support for this conclusion in language used at other points in Article 36. “The Clarity of these provisions,” the Court found, “admits of no doubt.” Id.Google Scholar
(6) LaGrand Case (Germany v. United States of America) www.icj-cij.org 74 (Judgement of June 27, 2001).Google Scholar
(7) LaGrand Case (Germany v. United States of America) www.icj-cij.org 91 (Judgement of June 27, 2001).Google Scholar
(8) The customary international law governing the interpretation of treaties is codified in Article 31 of the 1969 Vienna Convetion on the Law of Treaties: “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 light of the treaty's object and purpose.”Google Scholar
(9) The Court issued an order directing the United States to prevent the execution of Walter LaGrand pending the resolution of Germany's application. LaGrand Case (Germany v. United States of America) www.icj-cij.org 32 (Judgement of June 27, 2001).Google Scholar
(10) Statue of the International Court of Justice, Article 41.Google Scholar
(11) Another of the classical rules of treaty interpretation, established in customary international law and codified in Article 33(4) of the 1969 Vienna Convention on the Law of Treaties, holds that “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.”Google Scholar
(12) LaGrand Case (Germany v. United States of America) www.icj-cij.org 102 (Judgement of June 27, 2001).Google Scholar
(13) The United States represented that it had undertaken a comprehensive program to inform law enforcement authorities at every level of the obligations created by Article 36 of the Vienna Convention. As part of this program the Federal Government has distributed hundreds of thousands of copies of informational brochures and pocket cards as well as conducted training programs. LaGrand Case (Germany v. United States of America) www.icj-cij.org 121 (Judgement of June 27, 2001).Google Scholar
(14) LaGrand Case (Germany v. United States of America) www.icj-cij.org 125 (Judgement of June 27, 2001).Google Scholar
(15) LaGrand Case (Germany v. United States of America) www.icj-cij.org 9 (Dissenting Opinion, Oda, Judge, June 27, 2001).Google Scholar
(16) LaGrand Case (Germany v. United States of America) www.icj-cij.org 125 (Judgement of June 27, 2001).Google Scholar
(17) European leaders and activists have generally limited their efforts to last eleventh-hour clemency campaigns and to condemnatory conferences. Important and inspiring as they are, these meausre usually amount to little more than grandstanding and have had little impact in the way of saving lives. An important exception to this trend is, of course, the jurisprudence of the European Court of Human Rights, which has established a prohibition on the extradition from Europe to the United States of any suspect likely to face the death penalty. This jurisprudence has been picked-up by other nations including Mexico, Canada and most recently South Africa.Google Scholar
(18) Collins, Callins v., cert. Denied 510 U.S. 1141, 1143 (Dissenting, Blackmun, J.) (1994).Google Scholar
(19) James Liebman and Jeffrey Fagan, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 http://justice.policy.net/jpreport.Google Scholar
(20) Cassel, Douglass, Judicial Remedies for Treaty Violation in Criminal Cases: Consular Rights of Foreign Nationals in United States Death Penalty Cases, 12 LEIDEN JOURNAL OF INTERNATIONAL LAW 851, 860 (1999).Google Scholar
(21) What would have seemed impossible only 5 years ago, Congress is considering legislation to promote fairness in the application of the death penalty and to provide procedures for reviewing claims of innocence in death penalty cases. One of the central provisions of the bill would create standards for the appointment of counsel in capital cases.Google Scholar
(22) LaGrand Case (Germany v. United States of America) www.icj-cij.org 71 (Judgement of June 27, 2001).Google Scholar
(23) LaGrand Case (Germany v. United States of America) www.icj-cij.org 81 (Judgement of June 27, 2001).Google Scholar
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