LaGrand (Germany v. United States of America) (2001)

Three holdings, each independently examinable.

1. Article 36(1) of the Consular Relations Convention creates individual rights, and an interrelated regime whose breach can be invoked by the sending State in its own right.
2. Provisional measures indicated under Article 41 of the Statute are binding. This settled a controversy that had run since 1922.
3. Where an apology is not enough, the remedy is review and reconsideration of the conviction and sentence.

Walter and Karl LaGrand were born in Germany in 1962 and 1963. They were arrested in the United States on 7 January 1982, convicted of first degree murder, attempted armed robbery and kidnapping, and on 14 December 1984 each was sentenced to death.

At no material time were they informed of their rights under Article 36(1)(b). The German consular post was not informed of their arrest. They learned of their rights from other sources and contacted the German consulate in June 1992; the United States authorities formally notified them of the right to consular access only in 1998. Both States were parties to the Convention and the Optional Protocol.

The Supreme Court of Arizona set executions for 24 February and 3 March 1999. Germany applied to the Court, which on 3 March 1999 indicated provisional measures. The United States State Department transmitted a copy of the Order to the Governor of Arizona without comment. The Solicitor General wrote to the United States Supreme Court that an order indicating provisional measures is not binding and furnishes no basis for judicial relief. Both brothers were executed.

1. Did the failure to inform violate obligations owed to Germany, and did Article 36(1) create rights of the individuals?
2. Are orders indicating provisional measures binding?
3. What reparation is due?

1. Yes. The United States conceded the breach of Article 36(1)(b) and the Court found consequent violations of Article 36(1)(a) and (c) as against Germany, and a violation of Article 36(2) through the circumstances in which the procedural default rule was applied.
2. Yes. Orders under Article 41 have binding effect, and the United States breached the Order of 3 March 1999.
3. The United States commitment to a compliance programme met Germany's request for assurances of non-repetition; for future cases involving prolonged detention or severe penalties, an apology would not suffice and review and reconsideration is required.

Article 36(1)(b) requires the competent authorities of the receiving State, if the detained person so requests, to inform the consular post of the sending State without delay, to forward communications without delay, and to inform the person concerned without delay of his rights.

The Court described the structure: "Article 36, paragraph 1, establishes an interrelated régime designed to facilitate the implementation of the system of consular protection." Subparagraph (a) states the basic principle of communication and access; (b) spells out the modalities of notification; (c) sets out what consular officers may do for their nationals in custody. It follows that where the sending State is unaware of the detention because of the receiving State's failure to notify, it "has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1."

Then the point that defeats every causation argument: "It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen."

Method. The Court proceeded to interpret Article 41 "in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties", that is, in good faith in accordance with the ordinary meaning of the terms in their context and in the light of object and purpose. This is itself an examinable illustration of Article 31 in action.

Object and purpose. The object and purpose of the Statute is to enable the Court to fulfil its functions, in particular judicial settlement by binding decisions under Article 59. The context of Article 41 is to prevent the Court from being hampered because the respective rights of the parties are not preserved. "It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding". A contrary contention "would be contrary to the object and purpose of that Article."

The general principle. The Court invoked the principle recognised by the Permanent Court, "universally accepted by international tribunals and likewise laid down in many conventions", that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and must not allow any step which might aggravate or extend the dispute.

Article 94 of the Charter. The words the decision of the International Court of Justice in Article 94(1) could mean any decision, including orders on provisional measures, or only judgments as in Article 94(2). The Court held that on the first reading the paragraph confirms the binding nature of provisional measures, and on the second it in no way precludes their binding force under Article 41. Either way, "Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character."

Conclusion and application. "the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect." The Order of 3 March 1999 "was not a mere exhortation"; it was binding and created a legal obligation.

The first measure asked the United States to take all measures at its disposal to ensure Walter LaGrand was not executed pending the final decision. The Court accepted that this did not create an obligation of result, and that the late presentation of the request left little time. But mere transmission of the Order to the Governor of Arizona without 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."

The United States apologised. "The Court considers however that an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties."

On assurances of non-repetition, the Court took the compliance programme seriously: a booklet on consular notification and access published in January 1998, a pocket reference card, over sixty thousand copies of the brochure and over four hundred thousand cards distributed, training programmes, and a permanent office in the Department of State. It reasoned that where a State repeatedly refers in proceedings to substantial activities aimed at compliance, that expresses a commitment to follow through; no State could guarantee that no failure will ever recur, and Germany did not seek such a guarantee.

The Court also made a point that matters for the law of remedies: it had not found that any United States law, substantive or procedural, was inherently inconsistent with the Convention. The violation of Article 36(2) was caused by the circumstances in which the procedural default rule was applied, not by the rule as such. So the remedy for the future is review and reconsideration of the conviction and sentence taking account of the violation, and "The choice of means must be left to the United States."

• For a treaty-interpretation question, use this case as the worked example of Article 31: ordinary meaning, context, object and purpose, applied to a single word in a Statute.
• For a remedies question, note the ladder: cessation, assurances of non-repetition, and, where an apology is inadequate, review and reconsideration. Map it onto Articles 30, 31, 34 and 37 of the Articles on State Responsibility.
• For a provisional-measures question, give both strands, the object-and-purpose argument and the Article 94 argument, and finish with the observation that the Order was not a mere exhortation.
• Read with Jadhav, where the same Article 36 was applied to an Indian national, and where the Court again ordered effective review and reconsideration.