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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Legally, a world of difference exists between the right of the consul to lxgrand an incarcerated national of his country, and the wholly different question whether the State can espouse the claims of its national through diplomatic protection. 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: Based on the text of these provisions, the Court concludes that Article 36, ijc 1, creates individual rights, which, by virtue of Article I of the Optional Icn, may be invoked in this Court by the national State of the detained person.
Clearly, the effect of this clause is to limit the scope of Article 36 to facilitation of cae exercise of consular functions relating to nationals of the sending State. From Wikipedia, the free encyclopedia. They have been granted by the ICJ in 11 cases: This Order was not a mere exhortation.
The Drafting Committee prepared a new version of this text, to which two main amendments were made: Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
Melbourne Journal of International Law
As regards the question whether the Largand States has complied with the obligation incumbent upon it as a result of the Order cade 3 Marchthe Court observes that the Order indicated two provisional measures, the first of which states that “the United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending lgarand final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order”.
It does not deny that this violation of Article 36, paragraph 1 bhas given rise to a dispute between the two States and recognizes that the Court has [p ] jurisdiction under the Optional Protocol to hear this dispute in so far as it concerns Germany’s own rights. The United States argues further that Germany’s first submission, as far as it concerns its right to exercise diplomatic protection lagand respect to its nationals, is inadmissible on the ground that the LaGrands did not exhaust local remedies.
In this case, Germany had the right at the request of the LaGrands “to arrange for [their] legal representation” and was eventually able to provide some assistance to that effect.
In the end, on the motion of Venezuela, Ecuador, Spain, Chile and Italy, the Second Committee of the Conference decided to reverse the original order of Article 36, paragraph 1 a ici, of the International Law Commission draft, so that the subparagraph lsgrand first to the right of consular officers to communicate with and to have access to nationals of the sending State, and secondly to the right of nationals of the lagarnd State to have the same freedom with respect to communication with and access to consular officers of the sending State ibid.
Judge Oda; 4 By fourteen votes to one, Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph 3 above had been established, the United States of America breached its obligation to the Federal Republic of Ger-[p ]many and to the LaGrand brothers under Article 36, paragraph 2, of the Convention; IN FAVOUR: On 16 Caethis judgment was affirmed on appeal by the United States Court of Appeals, [p ] Ninth Circuit, which also held that lagtand LaGrands’ claim relating to the Vienna Convention was “procedurally defaulted”, as it had not been raised in any of the earlier proceedings in state courts.
On 3 March a German national, Walter Burnhart LaGrand, was executed by cyanide gas in a correctional facility in Arizona in the United States for a criminal offence he ick in the mid s.
In the course of these proceedings — and in full knowledge of the Order of the International Court — the Office of the Solicitor General, a section of the U.
Signed Philippe Couvreur, Registrar.
The Court accordingly finds that this claim of inadmissibility must be rejected. It contests the German assertion that diplomatic protection “enters through the intermediary of the Vienna Convention” and submits: The United States acknowledges, and does icjj contest Germany’s basic claim, that there was a breach of its obligation cse Article 36, paragraph 1 bof the Convention “promptly to inform the LaGrand brothers that they could ask that a German consular post be notified of their arrest and detention”.
Oxford Public International Law: LaGrand Case (Germany v United States of America)
The Court cannot accept the United States objections. The United States maintains that many of Germany’s arguments, in particular those regarding the rule of “procedural default”, ask the Court “to address and correct. Article 36, paragraph 1, and specifically subparagraph bhas to be read in the context of these consular functions provided for in Article 5. States entitled to appear before the Court.
Walter LaGrand was executed March 3,by lethal gasand currently remains the last person executed by that method in the United States. The ICJ has adopted an interpretation that emphasises the purposes and ends served by article 36, rather than simply the basic procedural rights the article mandates. However, during the negotiating sessions, this draft provision mainly aroused two different reactions.
In the view of the United States: Issues of a different order were raised by the provisional measures submission — the ICJ was essentially concerned there with procedural issues.
Public hearings were held from 13 to 17 Novemberat which the Court heard the oral arguments and replies of: In that amicus brief, the lagrahd Solicitor General had declared less than a year earlier that “there is larand disagreement among jurists as to whether an ICJ order indicating provisional measures is binding.
The Lavrand will therefore now consider the object and purpose of the Statute together with the context of Article Germany further contends that “the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers”.
Nowhere in the Preamble of the Convention cae reference made to the creation of rights of individuals under the Convention. Thus, subparagraph 7 does not address the position of nationals of other countries or that of individuals sentenced to penalties that are not of a severe nature.
This reversal of order in Article 36, paragraph 1 vaseconfirms the interpretation of that subparagraph in the context and in the light of the object and purpose of the Convention. The United States argues that at the time of their arrest, neither of the LaGrands identified himself to the arresting authorities as a German national, and that Walter LaGrand affirmatively stated that he was a United States citizen. The Court will now consider Germany’s second submission, in which it asks the Court to adjudge and declare: Latrand the same day, the Arizona Superior Court in Pima County rejected a further petition by Walter LaGrand, based inter alia on the absence of consular notification, on the ground that these claims were “procedurally precluded”.
The United States maintains that it layrand be contrary to basic principles of administration of justice and equality of the Parties to apply against the United States alleged rules that Germany appears not to accept for itself.