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I. Lagrand Case (Germany v United States of America)

Published online by Cambridge University Press:  17 January 2008

Malcolm D. Evans ,
Martin Mennecke  and
Christian J. Tams
Martin Mennecke
Affiliation:
Danish Centre for Holocaust and Genocide Studies, Copenhagen.
Christian J. Tams
Affiliation:
Gonville & Caius College, Cambridge. We are grateful to Matthew Conaglen for comments on the manuscript.
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Extract

In the LaGrand case, the United States found themselves for the second time within three years before the International Court of Justice dealing with the death penalty imposed on foreign nationals in the United States.1 In contrast to the earlier case filed by Paraguay, the German-sponsored LaGrand case survived the provisional measures phase and went on to the merits stage. In its judgment of 27 June 2001, the Court largely affirmed all four German submissions and ruled that the United States had violated international law.

Type
Decisions of International Tribunals: the International Court of Justice
Information
International & Comparative Law Quarterly , Volume 51 , Issue 2 , April 2002 , pp. 449 - 455
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 LaGrand case (Germany v United States of America), Judgment of 27 June 2001, available at <http://www.icj-cij.org/icjwww/idecisions.htm>; Case Concerning the Vienna Convention on Consular Relations (Paraguay v United States of America), ICJ Reports 1998, 248, and on this Addo, Michael K, ‘Vienna Convention on Consular Relations (Paraguay v United States of America) (‘Breard’) and LaGrand (Germany v United States of America), Applications for Provisional Measures’, ICLQ 48 (1999), 673.CrossRefGoogle Scholar

2 For a summary of the facts see Judgment, paras 13–34.

3 Vienna Convention on Consular Relations of 24 Apr 1963, 596 UNTS 261 (‘Consular Convention’).

4 LaGrand case (Germany v United States of America), Order on Provisional Measures, ICJ Reports 1999, 9, at para 29. See on this order Martin Mennecke and Tams, Christian J, ‘The Right to Consular Assistance Under International Law: The LaGrand Case before the International Court of Justice’, German Yearbook of International Law 42 (1999), 192.Google Scholar

5 Judgment, para 40. This concern was partly taken up by Judge Oda, diss op, paras 2–10 and 20–1, and Judge Parra-Arranguren, sep op, paras 2–15.

6 Judgment, paras 42, 45, 48.

7 In fact the United States had brought forward two additional arguments why the Court should adjudge Germany's submissions inadmissible—both of them were rejected. See on the local remedies rule paras 58–60 of the Judgment and for a discussion of an argument relating to the equality of parties before the Court paras 61–3 of the Judgment.

8 Judgment, para 50.

9 Judgment, para 52.

10 Judgment, paras 53–7.

11 Cf the dissenting opinions by Judges Buergenthal and Oda.

12 Judgment, para 53.

13 Judgment, para 56.

14 On different accounts of the relevant facts of the case, in particular of the mentioned remarks during the clemency hearings, see Memorial of the Federal Republic of Germany (available at <http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm>), para 2.12, and the Counter-Memorial of the United States of America (Ibid), paras 59–60.

15 Judgment, para 57.

16 Judgment, paras 65–78.

17 Judgment, para 76.

18 Judgment, para 77. The Court later affirmed this ‘individual right’ interpretation when addressing Germany's second submission, see para 89 of the Judgment.

19 Judge Shi, sep op, particularly para 4, and Judge Oda, diss op, paras 23–5.

20 See for the application of the procedural default doctrine in the LaGrand case before an US court LaGrand v Stewart, 133 F.3d 1253, 1261 (9th Cir 1998).

21 Judgment, para 84.

22 This had also been emphasised by Germany, see para 81 of the Judgment.

23 Judgment, para 90–1.

24 Judge Oda was the only judge to dissent on this point, see his diss op, para 26–7. In his separate opinion (paras 5–6), Judge Koroma questioned the reasoning of the Court on this matter.

25 Cf, eg, Mennecke/Tams (above n 4), at 203–9.

26 In addition, the United States also stated that it had taken all steps that were constitutionally open to it in order to carry out the order.

27 See Judgment, paras 93–7.

28 In its crucial part, Art 41 provides that: ‘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’ (emphasis added).

29 Judgment, paras 99–101.

30 Judgment, paras 102–3.

31 See Judgment, paras 111–16.

32 But cf. the submissions contained in Germany's initial application (Judgment, para 10).

33 Judgment, para 118.

34 This refers to the various attempts, to disseminate information about the obligations arising under Art 36 Consular Convention, see oral proceedings (available at <http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm>), CR 2000/28, paras 4.5–12 (Ms Brown).

35 Judgment, para 119.

36 Judgment, para 123.

37 Judgment, para 124.

38 Judgment, para 125.

39 Judges Oda and Parra-Aranguren dissenting.

40 See oral hearings (above n 34), CR 2000/26, at para IX.51 (Professor Dupuy).

41 See Inter-American Court, Advisory Opinion OC-16/99, 21 Human Rights Law Journal (2000), 24.Google Scholar

42 Cf ILC draft articles on State responsibility (second reading), commentary to Art 30, para 9, reproduced in UN Doc GA Res 56/10, at 219.

43 See eg the German memorial (above n 14), at para 1.08.