Due Process and the Right to Life in the Context of the Vienna Convention on Consular Relations: Arguing the LaGrand Case

Monica Feria Tinta^*

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1. Introduction

On 13 November 2000 the habitual calm of the Peace Palace was interrupted by proceedings that concerned a case that was special in many ways. Germany and the United States, `two close allies and partners' in the words of the Agent for Germany,¹ faced each other before the International Court of Justice to submit oral pleadings related to the LaGrand affair.² The dispute, which arose out of the interpretation and application of the 1963 Vienna Convention on Consular Relations (`The Vienna Convention') - treaty that at first sight seems to concern mere inter-state relations - originated within a context that compelled Germany and the International Court of Justice itself to act in an unprecedented manner. As indicated by the Legal Adviser of the German Federal Foreign Office in his introductory statement to the Court, there had been no other reason why Germany felt `forced to sue its close ally, the United States'³ and why the Court had for the first time issued an Order on provisional measures⁴ proprio motu and without having held a hearing,⁵`acting literally within hours after it had been seised by Germany on 2 March 1999',⁶ than the fact that the life of a man in imminent danger was at stake.

Indeed, although the case has at its core the interpretation and application of Article 36 of the Vienna Convention,⁷ it involves legal proceedings that led to the deprivation of life of two individuals of German nationality: Karl LaGrand and Walter LaGrand.⁸ As recalled by Germany in its submissions, the first died executed by way of lethal injection⁹ and the second in the gas chamber of the State of Arizona.¹⁰

Each execution had a significance of its own. While Karl LaGrand's was `the first execution of a German citizen in the United States since the founding of the Federal Republic of Germany, back in 1949',¹¹ Walter LaGrand's took place in a dramatic context: it was carried out on the face of Germany's claims and despite the Order of the Court calling upon the United States to take all measures at its disposal to ensure his execution be stayed pending the Court's final decision in the matter.¹² As a result, two countries of `highly developed legal culture' - to use the words of the Agent for Germany - met in a public hearing in relation to a dispute which, although it `[did] not concern the international legality vel non of the death penalty as such'¹³, was surrounded by facts that made it impossible to insulate the relevant provision of the Vienna Convention on Consular Relations from its possible bearing on individual rights: namely on the right to due process and, ultimately, on the right to life in the context of the death penalty.

Both the LaGrand (at the early stage of its proceedings) and its predecessor the Breard case¹⁴ attracted great scholarly attention on the question of provisional measures. It should be noted, though, as pointed out by the late Keith Highet, that this literature suffered from focusing primarily on internal US administrative and constitutional practices or on the view of the United States regarding whether provisional measures orders of the International Court are `binding', rather than on what the perspective of international law on those questions might be.¹⁵

The problems the LaGrand case raises, however, go beyond the issue of the legal effect of provisional measures and it is only in the wider examination of those problems that a proper analysis of the legal effect of interim measures can be achieved.

Two clearly opposite views of international law appeared from the arguments of the parties. On the one hand, there is the position taken by the United States, for whom international law consists of a myriad of watertight compartments: at the level of sources, treaty law and customary international law have separate existence and thus one excludes the application of the other; at the level of rights and obligations, inter-state relations can be isolated from their bearing on individual rights; in respect of the different areas of public international law, they may not converge, human rights law being like oil, never to mix with the water of consular relations or diplomatic protection. In contrast, Germany takes the view that a treaty-law provision is not self-sufficient but that it may interact with other norms and sources in its application; that inter-state rights and obligations can no longer be insulated from individual rights, and that the interlocking of human rights law with other areas of public international law corresponds to the reality of contemporary international law. Moreover, while the United States advocates the view that norms can be neutrally applied regardless of context and circumstances, Germany takes the position that context is important.

Thus, not only was the Court called on by the plaintiff to pronounce itself on the interpretation of what it considered `one of the key norms of the Vienna Convention'¹⁶ but indeed, on legal issues of great significance for contemporary international law.

The present article examines a number of closely inter-related legal problems, which lie at the basis of the two propositions before the Court. First, it discusses a fundamental underlying aspect of the case: the relation of sources of international law. To this author's mind, the LaGrand case illustrates the complexity of the interaction between customary international law and conventional norms under modern international law. It is submitted that such interaction goes beyond the traditional Continental Shelf¹⁷ principles and operates in a more sophisticated fashion. Germany's reliance on the entire legal framework of international law prevailing at the time of the interpretation of Article 36 of the Vienna Convention (which includes rights and obligations under customary law) sheds light on the ancillary role that customary law may play in the interpretation of treaty law. Second, the article considers a problem which has received great attention in the current discussions of the International Law Commission on state responsibility: that is, the complexity of subjective rights (corresponding both to States and individuals) and obligations to which multilateral treaties give rise today. Thus, the intertwining of state-based rights and duties under Article 36 of the Vienna Convention with the individual right to information on consular assistance is analysed. This is followed by an examination of the most crucial argument made by Germany in the oral pleadings, namely that the right to information on consular assistance constitutes an individual human right which must be counted among the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defence and receive a fair trial and whose observance becomes imperative in cases involving the death penalty. Finally, within that framework of analysis both the role of diplomatic protection as well as the question of non-compliance with provisional measures are examined together with the legal consequences flowing from the breach incurred by the United States.

* LLM. with Merit (London); Diploma of the Hague Academy in International Law; Ph.D Candidate and Teaching Assistant in International Law, London School of Economics and Political Science.

1 LaGrand Case (Germany v. United States of America) Public sitting held on Monday 13 November 2000, at 10 a.m., at the Peace Palace. Verbatim Record, uncorrected. CR 2000/26, p. 11 para. 2.

2 The facts of the case which remain undisputed by the United States were summarized by Germany in the following way: `In January 1982 two German nationals Karl and Walter LaGrand attempted an armed bank robbery in Marana/Arizona, in the course of which the bank manager was murdered and another bank employee seriously injured. Upon the arrest of the brothers, the Arizona authorities did not inform them about their rights under Article 36 of the Vienna Convention on Consular Relations. Neither did the authorities notify the arrest and detention of the LaGrands to the German Consulate. The LaGrands themselves were not aware of their rights to consular advice.... Ten years later, in June 1992, German consular officers were made aware of the case by the LaGrand brothers themselves. They had learnt of their rights from two other German prison inmates, and not from the Arizona authorities[Despite the fact of the evidence that Arizona authorities had known of the German citizenship of the brothers since April 1992 at the latest]. At that time Karl and Walter LaGrand had already been tried and sentenced to death.' After exhausting all legal means to get the failure of communication and its allegedly negative impact on the trial addressed, and any representations possible at the diplomatic and political level on behalf of the LaGrands, Germany filed a case against the United States before the International Court of Justice. Ibid, at 18, para. 2.

3 Ibid, at 12, para. 3.

4 See Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), Order of 3 March 1999, ICJ Reports (1999), available on the ICJ website <www.icj.org>.

5 In so doing the Court exercised powers under Article 75, para. 1 of its Rules, which provide that `The Court may at any time decide to examine proprio motu whether the circumstances of the case requires the indication of provisional measures which ought to be taken and complied with by any or all of the parties'. Although this provision has `substantially featured in the Rules of the Court since 1936', it had never before been resorted to by the Court. It was stressed that the use of such powers may be exercised `irrespective of whether or not [the Court] has been seised by the parties of a request for the indication of provisional measures' and that in such a case `it may, in the event of extreme urgency, proceed without holding hearings'. Ibid, para. 21.

6 CR 2000/26, supra note 1, at 12, para. 2. The execution of Walter LaGrand had been scheduled for 3 March 1999.

7 Article 36 of the Vienna Convention on Consular Relations reads:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving States shall, without delay, inform the consular post of the sending State if within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.

Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the rights to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. 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.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

Done on 24 April 1963, 596 UNTS 262.

8 In lodging its Application Germany claimed that

[b]y failing to inform Karl and Walter LaGrand, two German nationals, arrested in 1982 on suspicion of capital crimes in Arizona, of their right to consular access, even though the competent authorities were aware of their German nationality from the outset, the United States violated the obligations flowing from Article 36(1) of the Vienna Convention on Consular Relations. This breach of international law had tragic consequences: Had the German consulate been duly informed, its officials would have immediately provided protection, support and assistance to their nationals, helping in the preparation of their defence, in obtaining competent counsel and in collecting mitigating evidence. Thus, the case of the LaGrands would have been thoroughly investigated, and essential mitigating evidence, mainly located in Germany, would have been presented at the decisive steps of the criminal proceedings. In fact, however, Karl and Walter LaGrand were poorly represented, none of this evidence was produced, and the brothers were sentenced to death. These are compelling reasons to believe that the LaGrands would have escaped the death penalty if the evidence mentioned had been introduced in time.' See Memorial of the Federal Republic of Germany (hereinafter `German Memorial') Vol. I, 16 September 1999, at 1, para. 1.01.

9 Executed in the evening of 24 February 1999, before Germany filed a case before the International Court of Justice. See Ibid, at 16, para. 2.13.

10 CR 2000/26, supra note 1, at 11, para. 2.

11 Ibid, at 15, para. 10.

12 See Order of the 3 March 1999, supra note 4, at para. 29.

13 LaGrand Case (Germany v. United States of America) Public sitting held on Monday 13 November 2000, at 3 p.m., at the Peace Palace. Verbatim Record, uncorrected. CR 2000/27, at 10, para. 20.

14 See Case Concerning the Vienna Convention on Consular Relations (Paraguay v. USA) Request for the Indication of Provisional Measures (9 April 1998) available at www.icj.org. Following the execution of Francisco Breard Paraguay discontinued its claim.

15 See K. Highet `The Emperor's New Clothes', 765-782, Annex MG 39 of the Memorial of the Federal Republic of Germany Volume III, 16 September 1999, p.773-774. Referring in particular to publications on the subject made in the Agora of the 92 AJIL (1998). It should be noted however that an attempt to address the international aspects of the problem of compliance with provisional measures indicated by the Court has been recently made by Addo in `Interim Measures of Protection for Rights under the Vienna Convention on Consular Relations', 10 EJIL (1999) 713.

16 CR 2000/26 supra note 1, at 13, para. 5.

17 North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), ICJ Reports (1969), at 3.

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