On June 27, , the ICJ, rejecting all of the United States’ arguments, ruled in favor of Germany. The ICJ held that the Vienna. 1 LaGrand (Germany v United States of America) (hereafter ‘LaGrand Case’) may Not only did the ICJ state, for the first time in the history of its existence, the. The German’s (P) case involved LaGrand and his brother who were executed before the matter came to the I.C.J. the Court found that the U.S. (D) had breached.
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Not only did the ICJ state, for the first time in the history of its existence, the binding nature of provisional measures issued under Art.
Oxford Public International Law: LaGrand Case (Germany v United States of America)
The LaGrand brothers challenged their conviction and sentence before the Supreme Court of Arizona and the US Supreme Court; the latter denied their ifj in exercise of its discretion. A second procedure under the law of US criminal procedure, the post-conviction relief proceedings, was equally unsuccessful and rejected by the US Supreme Court in As the US explained: The execution of Walter LaGrand was scheduled for 3 March Germany tried to justify filing the case at such a late date by stating that it lafrand only become fully aware of the facts of the case before 24 February The measures included, in particular, a stay of the execution of Walter LaGrand.
The motion of Germany was dismissed and Walter LaGrand was executed on the same day. Germany in particular alleged that the failure of the US to inform the LaGrand brothers of their right to contact the German authorities prevented Germany from exercising its casr under Art.
Melbourne Journal of International Law
Germany further alleged that failure to inform the LaGrand brothers of their right also violated individual rights conferred on the detainees by the second sentence of Art. Germany raised this claim as a matter of diplomatic protection on behalf of its two nationals. All these claims were easily rejected by the Court. The respondent did not deny that the rights of Germany under Art.
The applicant argued that the conduct of the US authorities also entailed a violation of individual rights under Art. The Court based this finding solely on the text of the provisions set out in Art. Having made this determination, the Court did not deem it necessary to examine whether those rights were, as argued by Germany, also part of the international standard of due process and therefore to be treated as human rights.
In this failure, Germany saw a violation of the order of the Court indicating provisional measures, while the US, relying on State practice and the drafting history of Art. This submission inevitably raised the question of determination of the binding or indicative nature of provisional measures under Art. Also in view of the conduct of other US organs, the Court concluded that the US had not complied with the order of 3 March Germany wished to obtain assurances that for criminal convictions impaired by a violation of the rights under Art.
In this instance, the Court considered that apologies were insufficient and that in the case of severe penalties, it would be incumbent upon the US, by means of its own choice, to allow the review and reconsideration of the conviction and sentence of German nationals, by taking into account the violation of the rights set forth in the VCCR. The formulation of this last finding of the Court was probably intentionally flexible, but left several questions open for interpretation.
lagrnd Ultimately it might have encouraged the Mexican government one and a half years later to seek review and reconsideration for its nationals on death row, who had allegedly been sentenced in violation algrand the VCCR. Judge Oda who voted against all but two subparagraphs of the operative part, criticized several points in the judgment, notably the findings of the Court on the existence of a dispute, on the recognition of rights of individuals flowing from Art.
Judge Oda also indicated that, in retrospect, he would vote against the indication of provisional measures. According to the Vice President, the interpretation of the Court of Art.
He emphasized that the claim made by Germany in its third submission did not arise out of the interpretation of the VCCR but of Art. Before the LaGrand judgment put an end to the apparent ambiguity of the wording of Art. It has been speculated that this issue was settled by the ICJ because of the specific context of the case and it has also been assumed that the ICJ wanted, at this point in time, to equate its practice to that of the International Tribunal for the Law of the Sea ITLOS who had not had the binding nature of its orders questioned see Frowein at According to recent decisions of the Court, it is now—if it ever was—beyond doubt that the orders of the Court are binding since the entry into force of its Statute, not just since the findings in the LaGrand Case.
In that sense, the binding character has only been confirmed by the judgment and does not have any retroactive effect, even though the Court has recalled the binding nature of its orders for orders issued before see also: The majority of the Court found the wording of Art.
It offers the individuals and their sending State a new, procedural way to challenge domestic decisions violating the VCCR, by exercising the classical legal concept of diplomatic protection.
This impact is reflected in the decision of the ILC to wait for the judgment to be rendered before completing the second reading of its Draft Articles on State Responsibility. The admission of guarantees of non-repetition, general and specific, as a means of remedy for an international wrongful act can be regarded as confirmation of the often neglected function of State responsibility as a means of controlling and ensuring legality in the international legal order.
In State practice the assurances of non-repetition have been expressed by verbal assurances not to repeat the wrongful act. The ILC, in the articles adopted on first and second reading, classified guarantees and assurances of non-repetition together with cessation, as measures of strengthened primary obligations Art. In its commentary on forms of satisfactions, however, the ILC also cautiously included the possibility of including guarantees of non-repetition, which was the approach taken by Special Rapporteurs Riphagen and Arangio Ruiz.
The Court itself had not given much guidance on the issue of classification.
It might not have been simply coincidence that Germany submitted a request for assurances of non-repetition in that case. Be that as it may, the ICJ decided to grant that request without seeking to justify that form of remedy with its earlier jurisprudence or State practice.
One could have imagined that the consular notification should have been included in the so-called Miranda-warning, in order to generally inform each suspect detainee of that right.
One could also have imagined that the rule of procedural default could have been systematically put aside when a violation of the VCCR had been alleged at a late stage of a proceeding. Cause and prejudice being difficult to establish in those cases, one could have imagined that US jurisdictions could accept the failure to raise the issue of the VCCR violation as proof of ineffective assistance of counsel, offering sufficient grounds for opening the habeas corpus procedure.
During the written and oral proceedings there was already serious concern about the enforceability of the findings of the Court with respect not only to the obligations of States resulting from Art. On the other hand, the findings of the Court combined with the Declaration of Lagranf Guillaume appended to the judgment was potentially affecting many cases of detainees in the US. In the judgment on the merits, dated 30 Marchthe Court confirmed several of its findings as to the interpretation of the VCCR and its violation by the US in many of the cases under consideration.
Les ordonnances en indication de mesures conservatoires rendues par la Cour internationale de Justice dans les affaires Breard Paraguay c. Zum Urteil des IGH vom Urteil des Internationalen Gerichtshofes vom Rights, Remedies and Responsibility: Print Save Cite Email Share.
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