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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Judgments | LaGrand (Germany v. United States of America) | International Court of Justice
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.
In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. 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 Court considers that a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court’s jurisdiction.
Legally, a world of difference exists between the right of the consul to assist an incarcerated national of his country, and the wholly different question whether the State can espouse the claims of its national through diplomatic protection.
Germany maintains that the right to be informed of the rights under Article 36, paragraph 1 bof the Vienna Convention, is an individual right of every national of a State party to the Convention who enters the [p ] territory of another State party. The United States contends that when a person fails, for example, to sue in a national court before a statute of limitations has expired, the claim is both procedurally barred in national courts and inadmissible in international tribunals for failure to exhaust local remedies.
While the ICJ explicitly refused to consider whether article 36 rights are human rights, it nonetheless adopted a similar human rights approach to that utilised by the IACHR, without making clear how the approach informed its reasoning.
This provision reads “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”.
According to the United States, the use in the English version of “indicate” instead of “order”, of “ought” instead of “must” or “shall”, and of “suggested” instead of “ordered”, is to be understood as implying that decisions under Article 41 lack mandatory effect.
Presentations on the work of the Court. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The information required on the measures taken in implementation of this Order was given to the Court by a letter of 8 March from the Legal Counsellor of the United States Embassy at The Hague.
However, there is an important point of distinction. It contends that it was only seven days before it filed its Application that it became aware of all the relevant facts underlying its claim, in particular, the fact that the authorities of Arizona knew of the German nationality of the LaGrands since 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 of the VCCR.
The Court observes, nevertheless, that the mere transmission of its Order to the Governor of Arizona without any comment, particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of the United States that orders of the International Court of Justice on provisional measures are non-binding, was certainly less than could have been done even in the short time available.
Melbourne Journal of International Law
Germany appears to contend that by merely filing a case with the Court, an Applicant can force a Respondent to refrain from continuing any action that the Applicant deems to affect the subject of the dispute. 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”.
The majority of the Court found the wording of Art.
The same is true of the United States Solicitor General’s categorical statement in his brief letter to the Vase States Supreme Court that “an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief” see paragraph 33 above. 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.
The context in which Article 41 casr to be seen within the Statute is to prevent the Ijc from [p ] being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. The Court observes finally that in the third submission Germany requests the Court to adjudge and declare only that the United States violated its international legal obligation to comply with the Order of 3 March ; it contains no other request regarding that violation.
Rather, attention will be focused on the unprecedented conclusion that provisional measures are binding on States Parties.
Germany wished to obtain assurances that for criminal convictions impaired ijc a violation of the rights under Art. The Court does not agree with these arguments of the United [p ] States concerning the admissibility of the second, third and fourth German submissions. International focus on Arizona case”, The Arizona Republicp.
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. It is claimed that, had Germany been properly afforded its rights under the Vienna Convention, it would have been able to intervene in time and present a “persuasive mitigation case” which “likely would have saved” the lives of the brothers.
It follows that when the sending State is unaware of the detention of its nationals due to the failure of the receiving State to provide the requisite consular notification without delay, which was true in the present case during the period between andthe sending State has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1.
Oxford Public International Law: LaGrand Case (Germany v United States of America)
Turning first to the general demand for an assurance of non-repetition, the Court observes that it has been informed by the United States of the “substantial measures [which it is taking] aimed at preventing any recurrence” of the breach of Article 36, paragraph 1 b. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission. 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.
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. Public hearings were held from 13 to 17 Novemberat which the Court heard the oral arguments and replies of: