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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This subparagraph represents a response to certain submissions by Germany and hence rules only on the obligations of the United States in cases of severe penalties imposed upon German nationals. This clause is followed by the provision which spells out the modalities of consular notification Art. It should be noted that although the LaGrand Case also excited interest because European protestations as to the inhumanity of capital punishment appeared to have finally acquired an international legal vehicle, the case did not involve an examination of the merits or demerits of this form of punishment.
This reversal of order in Article 36, paragraph 1 aconfirms the interpretation of that subparagraph in the context and in the light of the object and purpose of the Convention. Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute “forms an integral part of the present Charter”.
Should the ICJ determine in the merits phase that it does not have jurisdiction, a respondent state against which a provisional order has been made would seem to be without recourse or remedy.
Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. United States of America – Caae of the public hearings on the merits of the dispute – Court ready to consider its Judgment Available in: By reaching the conclusion that provisional measures ordered by it are binding the ICJ has significantly enhanced its standing as the principal judicial organ of the UN.
After high level diplomatic efforts by Germany to prevent the execution of Karl LaGrand failed, Germany dase its application in the Registry of the ICJ ,agrand the proceedings and seeking provisional measures in relation to his brother, Walter.
Melbourne Journal of International Law
The invitation was refused. Germany claims that the United States violated cwse obligation under Article 36, paragraph 1 b to “inform a national of the sending state without delay of his or her right to inform the consular post of his home State of his arrest or detention”.
The United States has argued that the submissions of Germany are inadmissible on various grounds. The United States also alleges that the “terms of the Court’s 3 March Order did not create legal obligations binding on [it]”.
The issue of the lack of consular notification, which had not been raised at trial, was also not raised in these two sets of proceedings. However, during the negotiating sessions, this draft provision mainly aroused two different reactions. Hence, when a detainee’s right to lagranx without delay is violated, he or she cannot establish contact with the consulate, receive visits from consular officers, nor be supported by adequate counsel.
Germany points out that the “procedural default” rule is among the caase of United States domestic law whose application make it impossible to invoke a breach of the notification requirement. Where a person has been deprived of their rights under article 36, protection of his or her life is a necessary corollary of protecting the purpose for which those rights were conferred; namely as an important procedural safeguard.
It maintains that ocj issue of the absence of consular notification was not raised by Germany until 22 Februarytwo days before the date scheduled for Karl LaGrand’s execution, in a letter from the German Foreign Minister to the Secretary of State lgrand the United States see paragraph 26 above.
La Grand Case (F.R.G. v. U.S.), I.C.J. (June 27)
This is so because, prior tothe LaGrands could not resort to the available remedies, since they were unaware of their rights due to failure of the United States authorities to comply with the requirements of the Vienna Convention; thereafter, the “procedural default” rule prevented them from seeking any remedy.
At least with respect to certain subject matter that is susceptible to irreversible prejudice, a compelling moral argument may be made that provisional measures to preserve such subject-matter should be enforceable and enforced. Do binding provisional measures ordered by the ICJ offer greater promise as a mechanism for protecting human rights?
The Court has already determined that Article 36, paragraph jcj, creates individual rights for the detained person in addition to the rights accorded the sending State, and that consequently the reference to “rights” in paragraph 2 must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual see paragraph 77 above.
However, as Hugh Thirlway has noted, it is one thing to suggest that parties should not frustrate the judicial process, and quite another to suggest that parties are bound to follow a decision of the ICJ not to casr so.
Quite a number of States, though in agreement with the formulation of the principle in the draft, were much concerned about lwgrand heavy burden that the mandatory consular notification would impose on the receiving State, particularly on those States on whose territories there are a sizeable number of resident aliens [p ] lagrxnd foreign caxe or other short-term visitors.
In the Passage through the Great Belt Case Denmark sought indemnification against loss from complying with provisional measures sought by Finland. The third submission of Germany concerns issues idj arise directly out of the dispute between the Parties before the Court over which the Court has already held that it has jurisdiction see paragraph 42 abovecasee which are thus covered by Article I of the Optional Protocol.
There is here an inherent logic in the judicial procedure, and to disregard it would be tantamount, as far as the Parties are concerned, to deviating from the principle of good faith and from what the German pleadings call ‘the principle of institutional effectiveness’. Neither the Permanent Lagranc of International Justice, nor the present Court to date, has been called upon to determine the legal effects of orders made under Article 41 of the Statute. Lagrnd its part, the English version of Article 41 reads as follows: Any communications addressed to the consulate by the person in prison, custody or detention shall also be forwarded by the said authorities without undue delay” Yearbook of the International Law Commission,Vol.
In the view of the United States: Germany claims that it subsequently helped the LaGrands’ attorneys to investigate the LaGrands’ childhood in Germany, and to raise the issue of the omission of consular advice in further proceedings before the lagrahd courts.
By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law.
Judgments | LaGrand (Germany v. United States of America) | International Court of Justice
Germany further alleges that by breaching its obligations to inform, the United States also violated individual rights conferred on the detainees by Article 36, paragraph 1 asecond sentence, and by Article 36, paragraph 1 b. Concerning Germany’s claims of violation of Article 36, paragraph 1 a and cthe United States however calls these claims “particularly misplaced” on the grounds that the “underlying conduct complained of is the same” as the claim of the violation of Article 36, paragraph 1 b.
Finally, Germany points out that its fourth submission has been so worded “as to. This clause lagdand as the chapeau governing all the paragraphs of the Article, including paragraph 1 bwhere “rights” of the concerned nationals of the sending State are provided. The United States position is that its “competent authorities” for the purposes of Article 36, paragraph 1 bof the Vienna Convention were the arresting and detaining authorities, and that these became aware of the German nationality of the LaGrands by lateand possibly by mid largand earlier, but in any event not at the time of their arrest in The ICJ refused to uphold this objection, noting that although Germany made extensive reference to the administration of justice in the US, such reference was only in relation to submissions as to lagarnd application of relevant rules of international law by the ICJ to the issues in dispute.
Moreover, the State is not accountable for the errors or mistaken strategy by lawyers.