Consular Assistance and Rights and Remedies: Comments on the ICJ's Judgment in the LaGrand Case

Consular Assistance and Rights and Remedies: Comments on the ICJ's Judgment in the LaGrand Case

3. The Main Features of the Judgment

The Court's decision on the first, second and fourth German submissions are assessed below. Before dealing with the merits of the dispute, however, it is necessary to consider briefly questions of jurisdiction and admissibility.

A. Jurisdiction and Admissibility

Unlike many other contentious cases brought before the Court, the LaGrand case did not give rise to many problems at the jurisdictional stage. Germany had based its application on Article I of the Optional Protocol to the Consular Convention (hereinafter the `Optional Protocol'), pursuant to which:

Disputes arising out of the interpretation or application of the [Consular] Convention shall lie within the compulsory jurisdiction of the International Court of Justice.¹³

In its judgment, the Court adopted a broad interpretation of this provision, which is in line with its earlier decisions in the Hostages and Breard cases.¹⁴ Having found that the two parties disagreed over the extent of the violations of international law, and over the appropriate legal remedies,¹⁵ it addressed specific problems of jurisdiction. First, it found that, although inter-state claims based on the concept of diplomatic protection - such as Germany's first submission - were based on general international law,¹⁶ they came within the scope of Article I of the Optional Protocol as long as they concerned the application and interpretation of the Consular Convention.¹⁷ Secondly, it held that Article I of the Optional Protocol is broad enough to encompass claims for guarantees and assurances of non-repetition (such as in Germany's fourth submission), which the United States had argued were unknown to international law.¹⁸ These findings affirm the general view that where treaties - such as the Consular Convention - are silent on questions of remedies, or means of enforcement, rules of general international law will be applied.¹⁹ More specifically, they clarify that the Court's jurisdiction under dispute settlement clauses extends to all aspects of an inter-state dispute over treaty provisions, even if this requires the application of concepts derived from general international law.²⁰

With regard to admissibility, the Court rejected a number of other objections raised by the United States. The main problem was whether Germany's third claim - alleging the violation of the Court's interim order - should be declared inadmissible, since it was based on a delayed request for interim measures. As is clear from the summary of facts, Germany's application and request for provisional measures had been filed years after Germany had learnt of the relevant wrongful act, but only hours before the scheduled execution.²¹ Germany's timing of the application indeed prompted some criticism from the Court.²² However, the majority of judges (Judge Buergenthal²³ dissenting) found that, having entertained and granted Germany's request for an interim order in March 1999, it could not now bar Germany from pursuing a claim based on the violation of that order.²⁴ This may be seen as a confirmation of the Court's earlier jurisprudence on the question, which suggests that rules on delay operate under extremely narrow circumstances, and usually are applied only if the delay in bringing the claim had been prejudicial to the other party to the dispute.²⁵ Applied to the present case, this meant that Germany's diplomatic activity prior to the institution of proceedings was sufficient to maintain its right to pursue the case before the ICJ. Furthermore, the majority of the Court denied that Germany's late request for provisional measures had negatively affected the position of the United States with regard to the third claim raised at the merits stage.²⁶

Finally, the Court also did not accept the United States' contention that, by entertaining Germany's second, third and fourth claims, it would inappropriately assume the role of a criminal court of appeal.²⁷ Although the interpretation of Article 36 CC by US courts had played a role in the proceedings, all of Germany's claims ultimately required the Court to apply and interpret provisions of international law. In support of this conclusion, one might add that, where provisions of international law seek to protect rights of the individual in criminal proceedings, it is hardly possible to avoid the intermingling of international law and rules of domestic criminal law. Had the Court refrained from entertaining the German claims solely because of the `criminal law implications' of the case, it would have hardly fulfilled its role, prescribed by Article I of the Optional Protocol, to act as a guardian of the Consular Convention.

B. Article 36(1) of the Consular Convention and Individual Rights

The first German submission alleged that by failing to inform the LaGrand brothers of their right to consular assistance, the United States had violated Article 36(1) CC. In the relevant part, this provided:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State ... (b) if he so requests, the competent authorities of the receiving State 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 subparagraph...

Although the US Government, in its submissions, had conceded the breach of Article 36(1)(b) CC, the two parties disagreed over the extent of this violation. In particular,²⁸ the Court analyzed whose rights Article 36(1)(b) CC protected. In the view of Germany, the failure to provide consular notification had two distinct effects. It affected (1) Germany in its own right and (2) the two LaGrand brothers in their individual rights, which Germany, in turn, was entitled to espouse by way of diplomatic protection.²⁹ The United States, in contrast, maintained that Article 36(1)(b) safeguarded inter-state interests but did not contain individual rights guarantees.³⁰

During the proceedings, both parties had taken some pain to justify their respective positions.³¹ Germany had mainly relied on the wording of Article 36(1)(b) whose last phrase requires national authorities to:

inform the person concerned [i.e. the detainee] without delay of his rights under this subparagraph.³²

This view was also supported by the construction of Article 36(1)(b), pursuant to which it is for the detained person to decide whether consular officials should become involved in the proceedings.³³ The travaux préparatoires provided another argument for an `individualistic reading', since Article 36(1) had been included with the specific aim of strengthening the position of individuals facing charges in a foreign country.³⁴ Finally, Germany argued that the right to consular assistance should be seen as part of the international law standard of due process, and hence constituted a human right.³⁵

In contrast, the United States had stressed the overall aim of the Consular Convention, which aimed at maintaining and enhancing the consular relations between states.³⁶ This was further stressed in the chapeau to Article 36 which made it clear that the provision aimed at `facilitating the exercise of consular functions relating to nationals of the sending State'.³⁷

In its decision, the Court placed particular emphasis on the wording of the provision. Reciting Germany's reference to the words `his rights' in Article 36(1)(b), the Court found that:

[t]he clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand.³⁸

Consequently, the majority found that the United States had violated Karl and Walter LaGrand's individual right to consular assistance.

Basing himself on the object and purpose of the treaty and a different interpretation of the drafting history, Vice-President Shi reached the opposite conclusion. In his opinion, which was shared by Judge Oda,³⁹ `the better view would be that no creation of any individual rights independent of rights of States was envisaged'.⁴⁰

As far as methodology is concerned, the majority judgment indeed seems to have placed excessive emphasis on the wording of the provision. Of course, it cannot be denied that the reference to `his rights' provided Germany (and the majority) with a strong argument. But one wonders whether, as the majority says, this should have been the end of the interpretation. As the most recent edition of Oppenheim observes:

The finding whether [the wording of] a treaty is clear or not is not the starting point but the result of the process of interpretation. It is not clarity in the abstract which is to be achieved, but clarity in relation to particular circumstances and there are few treaty provisions for which circumstances cannot be envisaged in which their clarity could be put into question.⁴¹

Perhaps more importantly, the Court itself had held on an earlier occasion that, if an interpretation of the wording of a provision `results in a meaning incompatible with the spirit, purpose and context of the clause or the instrument in which the words are contained, no reliance can be placed on it'.⁴²

Unfortunately, the majority's rather apologetic reasoning seems to be informed by an attempt to hide behind the (admittedly relatively clear) wording, so to avoid having to apply the other methods of interpretation. At least methodologically, this is a questionable approach - the more so given its contrast with the far from literal approach the Court adopted to the interpretation of Article 41 of its Statute, on the issue of the binding effect of provisional measures.⁴³

This having been said, the result of the majority's interpretation is convincing. In support of an individualistic reading of Article 36(1)(b) CC, one might have referred to a number of other factors not mentioned in the judgment. For example, taking account of the dynamic evolution of international law, the majority might have pointed to the growing recognition, since the Convention's drafting, of individual rights under international law.⁴⁴ Moreover, the frequent statements by states that the right to consular assistance is of fundamental importance might have further supported the majority's interpretation, since recognizing its character as an individual rights guarantee would contribute to the effective implementation of Article 36(1) CC.⁴⁵ Finally, an analysis of the drafting history of Article 36(1)(b) CC might have provided the majority with further arguments in favour of an individualistic reading. While, admittedly, the travaux are not entirely clear, they nevertheless show that, during the discussions both within the International Law Commission (ILC) and at the Vienna Conference, participants were aware of the `individual rights implications' of the provision. For example, the United States delegate argued that the duty of consular notification should be dependent upon the request of the person detained, `to protect the rights of the national concerned'.⁴⁶ Conversely, the ILC's Special Rapporteur on the topic, J. Zourek, had initially warned against the inclusion of a provision on consular assistance, which, in his view, `would impinge upon such matters as human rights'.⁴⁷ These statements suggest that, although the majority may be criticized for not having undertaken a proper analysis of Article 36(1)(b) CC, the result of its interpretation is very acceptable.

Viewed in a broader context, the interpretation of Article 36(1)(b) CC has important implications. Three aspects would seem to deserve particular attention.

The first is that, by adopting an individualistic reading of Article 36(1)(b) CC, the Court has avoided being drawn into a battle of interpretations with another international judicial body, the Inter-American Court of Human Rights (IACHR). In an Advisory Opinion of 1 October 1999, the IACHR also had to consider who was the bearer of the right to consular assistance.⁴⁸ Advancing arguments similar to those raised in the ICJ proceedings, the IACHR held that Article 36(1)(b) CC recognized an individual right of the detainee.⁴⁹ The fact that both courts have now independently arrived at the same conclusion certainly reinforces the authority of the interpretation. The ICJ's decision also prevents an open disagreement between the ICJ and the IACHR, which might have aggravated fears that the proliferation of international courts, and the growing recourse to dispute settlement generally, endangers the unity of international law.⁵⁰

Secondly, the Court's interpretation is likely to affect the prospects of litigation within national jurisdictions. The question whether a rule of international law protects individual rights will often influence the rules on standing, or will be decisive in determining remedies.⁵¹ Hence Kirgis' comment that the ICJ's individualistic reading of Article 36(1)(b) CC `could tip the scale in favor of enforceable individual rights in a future domestic case'.⁵²

Thirdly, from the perspective of international law, the Court's findings on the one hand are evidence of a progressive understanding of international treaty rules. In particular, they confirm the view that, under modern international law, individual rights need not necessarily derive from classical human rights treaties. Rather, the LaGrand judgment shows that they are a pervasive phenomenon affecting nearly all areas of international law.⁵³ Although it recognizes, and confirms, this trend, the majority judgment, on the other hand, is not without ambiguity. In particular, it needs to be stressed that the Court did not agree with Germany's further contention that the right to consular assistance was a human right. Instead of deciding upon the issue, the Court - unlike the IACHR in its Advisory Opinion - deliberately left the question open and thereby seemed to distinguish the two categories of individual and human rights. The reason for leaving the question open is certainly understandable: whatever finding the Court would have reached would not have affected the outcome of the proceedings.⁵⁴ Nevertheless, in the present case, the Court's approach had important implications. By holding that the right to consular assistance under Article 36(1)(b) CC was a human right, the Court would have been able to explore the relationship between classical human rights guarantees protected in the international human rights treaties, and individual procedural rights such as Article 36 CC.⁵⁵ Inevitably, it would then have had to address Germany's assertion that the right to consular assistance formed part of the international guarantees of due process.⁵⁶ And, ultimately, a finding on the human rights character of Article 36(1) CC would have also been a starting point for discussing whether the execution of Karl and Walter LaGrand, upon conclusion of a procedurally irregular trial, amounted to a violation of the two brothers' right to life.⁵⁷

That the Court deliberately chose not to grasp this opportunity is telling. It shows its unwillingness to be drawn into a discussion of the human rights implications of the right to consular assistance in cases involving capital punishment. Quite probably, some commentators may find this the most disappointing aspect of an otherwise progressive judgment. It should not be forgotten, however, that Germany itself consciously sought to avoid the impression that it had embarked upon a crusade against capital punishment.⁵⁸ Had the Court taken the opportunity to pronounce on the question of capital punishment, it might have unnecessarily politicized the dispute, and thereby endangered the acceptability of its judgment. The Court's decision not to do so should therefore be seen as a form of healthy realism.

C. The Procedural Default Doctrine and Article 36(2) of the Consular Convention

Germany's second submission alleged that by applying the procedural default doctrine, US courts had violated Article 36(2) CC. The provision states:

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.

Given the reference to `laws and regulations of the receiving State', this may have seemed a rather far-reaching claim. However, Germany throughout the proceedings placed great emphasis on the proviso that national laws `must enable full effect to be given to the purpose for which the rights accorded under this article [i.e. Article 36(1)] are intended'.⁵⁹

The procedural default doctrine, which formed the subject of the second claim, is based on the `well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts'.⁶⁰ Under the doctrine, defendants who fail to raise claims based on federal or constitutional law before state courts cannot introduce such claims in subsequent proceedings before a federal court. The claim is deemed to be defaulted, and the federal court may not hear it.⁶¹

Although the doctrine is not without exceptions, such exceptions are construed extremely narrowly and have been further restricted by the adoption, in 1996, of the Antiterrorism and Effective Death Penalty Act.⁶² Under the relevant rules, foreign defendants are required to show that the failure to raise the violation of Article 36(1) CC before state courts was caused by an external factor (`cause'), and that consular assistance would have altered the outcome of the proceedings (`prejudice').⁶³ In nearly all cases involving foreign nationals' rights under Article 36(1) CC, federal courts have dismissed claims for lack of `cause', without even considering the question of `prejudice'.⁶⁴ In particular, the argument that an (inexperienced) defence counsel had failed to raise the violation of Article 36(1) CC before state courts (the most common excuse pleaded by the defendants) was not an external factor and thus insufficient to overcome procedural default.⁶⁵ Hence the fact that Karl and Walter LaGrand had been represented by non-specialized counsel keeping a `low profile' - rather than expert counsel provided and paid by the consulate - was insufficient `cause' to warrant an exception to the procedural default rule.⁶⁶ In short, under the specific rules of US procedural law, defendants had to bear the consequences of not knowing their rights, about which they were meant to be informed by the arresting authorities pursuant to Article 36(1) CC.

In the view of Germany, this rigid application of the procedural default doctrine had the effect of undermining the right to consular assistance rather than giving it full effect.⁶⁷ In contrast, the United States asserted that Article 36(2) CC only referred to rules which govern the way in which consulate and detainee could communicate, i.e. questions such as visiting hours or the timing of communications. It did not, however, extend to subsequent review procedures before criminal courts, in particular since, in their view, the Consular Convention did not require states to provide for such review procedures. Consequently, where states allowed individuals to raise violations of their right to consular assistance, they could not be criticized for introducing procedural restrictions.⁶⁸

In its decision, the Court drew a distinction between the procedural default doctrine as a general concept of United States domestic law, and its application in the cases of the two LaGrand brothers. While it did not pronounce on the legality of the doctrine as such, it found that the United States would have been obliged, under Article 36(2) CC, to provide the LaGrand brothers with an opportunity to raise violations of the right to consular assistance. Where national courts were prevented from attaching any legal significance to the previous violation of Article 36(1) CC, the requirement of effective implementation under Article 36(2) CC was not met.⁶⁹

It is submitted that, on the whole, this interpretation of Article 36(2) CC strikes an appropriate balance between the discretion of states to implement Article 36(1) CC, and the need to effectively safeguard the right to consular assistance.

First, the distinction between the procedural default doctrine as such, and its application in specific cases, is a helpful one.⁷⁰ It would have been surprising and unnecessary had the Court taken the liberty to evaluate a general procedural concept, which delimits the jurisdiction of state courts and federal courts and serves the interests of judicial economy. Secondly, when assessing whether in the circumstances of the present case the application of the procedural default doctrine conformed to Article 36(2) CC, the Court's reasoning is equally convincing. This is particularly so because its application to cases involving foreign detainees de facto reversed the intended effects of Article 36(1)(b) CC: although that provision squarely placed the obligation to provide information on the arresting authorities, a rigid application of the procedural doctrine allowed these authorities to escape responsibility for their failure, while at the same time `punishing' foreigners for not knowing their rights. The Court's finding that this did not `enable full effect' to be given to the right to consular assistance is certainly correct. Moreover, it is also in line with the position, taken in respect of Germany's first claim, that the right to consular assistance is an individual right.⁷¹ Generalizing the Court's findings, it would seem safe to say that, in order to conform with Article 36(2), national laws must (1) allow defendants to raise violations of their right to consular assistance and (2) oblige courts to take cognizance of such breaches and consider their legal effects.⁷²

While this constitutes an important clarification, it is, however, just as important to note what the Court has not said. It would be wrong to assume that, since, in the case of the LaGrand brothers, the application of the procedural default doctrine resulted in a violation of Article 36(2) CC, the judgments rendered by US courts were themselves contrary to international law in terms of their outcome. All that the ICJ affirmed was that national courts must consider violations of the right to consular assistance. It does not follow that defendants whose right to consular assistance had been infringed, have a right to have their judgments reversed. In spite of the ICJ's decision in the present case, states remain free to regulate the legal parameters within which national courts perform their duty to consider the violation of Article 36 CC. National courts therefore could well decide that, on balance, failure to notify the defendant of his right to seek consular assistance is not as such a sufficient reason for reversing judgments of lower-instance courts, e.g. because the trial was otherwise fair or there had been adequate legal counsel. Put differently, Article 36(2) thus requires that a certain action is performed, but does not oblige states to guarantee a specific result.⁷³

Although this interpretation will not meet with unanimous approval,⁷⁴ it represents a wise compromise. In fact, it would have gone too far had the Court found that all judgments impaired by the failure to notify the defendant of his right to seek consular assistance per se had to be reversed, irrespective of whether the absence of consular assistance had actually had a negative impact on the defence of the foreigner. Of course, it is true that, with regard to some fundamental procedural guarantees, most legal systems provide for some form of exclusionary clause, i.e. stipulate that evidence adduced in violation of these rules is inadmissible.⁷⁵ However, these cases are exceptional, and there is a huge degree of diversity between the various approaches under national procedural law.⁷⁶ Both factors suggest that the international law requirements as to remedies for violations of procedural rights are rudimentary.⁷⁷ With regard more specifically to the right to consular assistance, it may further be noted that the Italian Court of Cassation, in the Yater case, expressly rejected the claim that proceedings were void because of a preceding violation of the defendant's right to consular assistance.⁷⁸ Viewed against this background, it is highly unlikely that violations of the right to contact consular officials - which, despite the importance of the right, are only meant to give assistance in the proceedings - should in all cases lead to the reversal or annulment of proceedings. In contrast, the interpretation put forward by the Court, pursuant to which the violation must be considered carefully, seems convincing. Under this approach, the question of remedies will depend on the circumstances of the concrete case, in particular establishing that the violation had negatively influenced the position of the applicant. The Court's interpretation of Article 36(2) CC enables national courts, which are in a far better position to assess evidence, to make this determination. At the same time, it requires them to focus on the effects of the violation on the position of the defendant.

D. Guarantees and Assurances of Non-Repetition

Whereas its first three claims had been directed at seeking a declaratory judgment, Germany, in its final claim, asked for guarantees and assurances that the violation of Article 36 CC would not be repeated. In some ways, this claim constituted the most peculiar aspect of the case, since, to date, guarantees and assurances of non-repetition had at best played a marginal role in the international law of state responsibility.⁷⁹ Since Germany had abandoned all claims for restitution, compensation and satisfaction,⁸⁰ guarantees and assurances for the first time assumed a central role in proceedings before the ICJ. The case therefore provided the Court with an opportunity to influence, if not direct, the development of the law of responsibility.⁸¹

Germany's main contention supporting the claim was that, in view of what had been termed a pattern of `variable compliance' with Article 36 CC,⁸² further violations were almost inevitable, in particular as problems of compliance - given the rigid application of the procedural default doctrine - could be said to be `systemic'. Of course, Germany's argument was greatly helped by the Court's holding that the application of the procedural default doctrine was in violation of Article 36(2) CC.⁸³ In addition, it had maintained that its interest in protecting its citizens would not be sufficiently safeguarded by any form of reparation. The US Government, in its counter-arguments, denied that guarantees and assurances were an accepted remedy under international law.⁸⁴ In any event, it had already taken steps to prevent future violations.⁸⁵ All that Germany could therefore claim was an apology.

In its judgment, the Court confirmed that in cases involving frequent violations and the risk of repetition, a state can be placed under a duty to provide guarantees and assurances of non-repetition. In particular, it expressly stated that, contrary to the views advanced by the United States:

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 [Consular] Convention and have been subjected to prolonged detention or sentenced to severe penalties.⁸⁶

Turning to the content of the duty to provide guarantees and assurances, the Court then drew a distinction between declarations evidencing a state's general commitment to respect international law in future and specific measures aimed at preventing such breaches. As to the first, it found that the various attempts of the US Government to prevent further violations of Article 36 CC were evidence of a commitment to respect the provision in future. As such, they were sufficient to satisfy Germany's demands for general assurances of non-repetition.⁸⁷ However, in the view of the Court, in cases involving prolonged detention or other severe penalties, general assurances were not enough. Conceding that no state could guarantee a perfect record of compliance, it held that, in these cases, the United States was under a duty to:

allow review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.⁸⁸

These findings are of considerable importance and go well beyond the existing law on the subject. At the same time, they are not free from ambiguity.⁸⁹ A first question relates to the actual content of the duty prescribed by the Court. In other words, it must be asked what the judgment means when requiring that, in cases involving `prolonged detention or ... severe penalties', the United States is under a duty to `allow the review and reconsideration of the conviction and sentence'.⁹⁰ The question is indeed of relevance because, on the face of it, the same duty would already seem to arise from the Court's finding on the procedural default doctrine. If, as the Court had found, rigid application of the doctrine was in violation of Article 36(2) CC, then the United States was obliged to cease the unlawful conduct, i.e. to prevent repetitions of this violation.⁹¹ As part of their duty of cessation, United States courts would therefore be obliged to consider the violation of Article 36(1) CC in proceedings against foreign defendants. The Court's decision on guarantees and assurances could thus be seen as a mere confirmation of its earlier findings.⁹²

However, if it were merely reiterating what it had said before, why then should the Court have restricted its decision on guarantees and assurances to situations involving `prolonged detention or ... severe penalties'? The better view indeed seems to be that with respect to these cases, the Court intended to go beyond its earlier findings and impose a stricter duty upon the United States. Accordingly, the judgment should be interpreted as drawing a distinction between `ordinary' breaches of Article 36 CC, and those ultimately leading to prolonged detention or severe penalties. With respect to all of these situations, the United States, as part of its duty of cessation, is obliged not to prevent defendants from bringing the violation of their right to consular assistance before US federal courts. It is only with regard to the latter, narrower category of cases involving prolonged detention and severe penalties that the ICJ expressly obliges the United States to adopt positive measures to change the present legal situation. Furthermore, the decision implies that, where heavy penalties are at stake, national courts must consider more carefully whether the lack of consular assistance had been prejudicial to the defendant. While again - just as with regard to the decision on Article 36(2) CC - this does not mean that defendants have an absolute right to have judgments reversed, it is clear that national courts enjoy less discretion and are obliged to provide for effective review of criminal convictions.⁹³

If read in this way, the LaGrand judgment considerably strengthens the role of guarantees and assurances of non-repetition as a distinct consequence of international wrongs.⁹⁴ This in turn could have implications of a more general nature for the law of state responsibility. Recognition of a future-looking remedy such as guarantees and assurances of non-repetition could modify the traditional idea that the rules of state responsibility are mainly concerned with the reparation of wrongs between injured and responsible state, and the restoration of the status quo ante.⁹⁵ Of course, the LaGrand judgment as such will not change this general conception. Nevertheless, it could mark a step towards a broader understanding of responsibility in international law. Two features in particular seem worth stressing. First, unlike reparations, guarantees and assurances of non-repetition are not concerned with remedying past wrongs, but aim at preventing future breaches of the law.⁹⁶ By recognizing and strengthening this remedy, the judgment thus seems to move away from a purely reparational, backward-looking approach.⁹⁷ It is submitted that this is a welcome readjustment, which takes account of the fact that, in specific situations, the parties' main interest is to restore `confidence in a continuing legal relationship'.⁹⁸

Secondly, at least in situations involving breaches of obligations under general international law or multilateral treaties (such as the Consular Convention), a duty to prevent future breaches can hardly be limited to bilateral legal relations between injured and responsible state. Unlike reparations, which are owed in relation to a specific other party, judgments awarding guarantees and assurances of non-repetition therefore seem more likely to have a general impact on a legal situation.⁹⁹

Of course, it remains to be seen whether the decision in the LaGrand case is confirmed by subsequent judgments, and definite statements should not be made prematurely. Nevertheless, it is important to note that the Court's findings on guarantees and assurances of non-repetition are far-reaching and could extend well beyond the LaGrand judgment.

Viewed against this background, it is particularly interesting that the judgment provides very little guidance on the conditions under which a duty to provide guarantees and assurances arises. Prior to the present judgment, the overall picture had been one of considerable flexibility: all that could safely be assumed was that two factors had to be taken into account, namely, the risk of repetition and the gravity of the consequence.¹⁰⁰ If anything, the LaGrand judgment has introduced a further element of uncertainty by interpreting the requirement of `gravity' in a very broad way. While, for example, the ILC's Draft Articles after first reading had spoken of the `gravity of the wrongful act',¹⁰¹ the Court, in the present case, does not refer to the wrongful act itself (i.e. the breach of Article 36 CC) but to subsequent effects, such as judgments of national courts imposing `prolonged detention or ... severe penalties'.¹⁰² This is highly relevant since, as has been stated, the Court had not found the judgments rendered by US national courts themselves to be in violation of international law.¹⁰³ In other words, the LaGrand judgment seems to suggest that, when considering whether a state owes guarantees and assurances, factors may be taken into account which have not themselves been found to violate international law, nor to have been caused by a previous violation. In the present case, this may indeed seem a plausible approach, since by rejecting the LaGrand brothers' petitions, US federal courts could be said to have upheld the initial violation of Article 36(1) CC. However, it would certainly be difficult to argue that, as a general matter, decisions on guarantees and assurances should depend on a free evaluation of all circumstances, irrespective of their causal relation with the relevant wrongful act. If indeed guarantees and assurances of non-repetition should become a more regular feature of international adjudication, it is submitted that subsequent judgments will have to establish clearer criteria and thereby introduce a measure of consistency.

13 596 UNTS 488. As the Court noted, both the United States and Germany were at all relevant times parties to the Optional Protocol; see Judgment, supra note 1, at para. 15.

14 Cf. ICJ Reports (1980) 3; ICJ Reports (1998) 248. Notably, the Court had already made clear that (1) the right to institute proceedings under Article I of the Optional Protocol could be exercised even before attempts at conciliation were exhausted (see ICJ Reports (1980) at 23-26, paras 45-49), and (2) disagreement over the appropriateness of certain remedies also constituted a `dispute' in the sense of Article I of the Optional Protocol, even where the defendant had conceded, and apologized for, the violation (see ICJ Reports (1998) 248, at paras 28-31).

15 Although neither of the parties had questioned the existence of a dispute, Judges Oda and Parra-Aranguren took a different position. In Judge Oda's view, Germany had brought the case for `an alleged violation of the [Consular] Convention, but ... not instituting proceedings in respect of disputes arising out of the interpretation or application of the ... Convention'; see Dissenting Opinion of Judge Oda, paras 2-9, at para. 8. Judge Parra-Aranguren held that, since the United States had conceded the violation of Article 36(1)(b) CC, the question was no longer disputed, and hence the Court lacked jurisdiction to pronounce on it. He was, however, prepared to accept that the Court had jurisdiction to pronounce on the question of remedies (see Dissenting Opinion of Judge Parra-Aranguren, at paras 4-11).

16 As to the legal foundations of the principle of diplomatic protection, see Mavrommatis Case, 1924 PCIJ Series A, No. 2, 12; Geck, `Diplomatic Protection', in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. I (1992) 1045, at 1048-1049.

17 See paras 40-42 and paras 58-60 on the relevance of the local remedies rule in cases involving diplomatic protection for breaches of treaty rules. Cf. also the United States' Counter-Memorial, supra note 1, at paras 73-75.

18 See paras 46-48; and cf. section 3.D below under the heading `Guarantees and Assurances of Non-Repetition', for a discussion of the substantive aspects of the issue.

19 Put differently, it may be said that, while treaties as special rules have precedence over residual rules of general international law, this does not mean that the general regime could not supplement the special rules. On this question, and the possibility of creating self-contained regimes, see the commentary to draft Article 55 of the International Law Commission's Draft Articles on State Responsibility, reproduced in `Report of the International Law Commission on the Work of its Fifty-Third Session', UN Doc. A/56/10 (2001) at 356-359; see also Germany's statements during the written and oral pleadings, German Memorial, supra note 1, at paras 3.51-3.54; and the oral hearings, supra note 1, CR 2000/26, at para. III.4 (Mr Kahn).

20 See also Oellers-Frahm, `Die Entscheidung des IGH im Fall LaGrand - Eine Stärkung der internationalen Gerichtsbarkeit und der Rolle des Individuums im Völkerrecht', 28 Europäische Grundrechte-Zeitschrift (2001) 265, at 267.

21 For a discussion of these problems, including the Court's unprecedented decision to order provisional measures on its own initiative (proprio motu), see Mennecke and Tams, `The Right to Consular Assistance Under International Law: The LaGrand Case Before the International Court of Justice', 42 German Yearbook of International Law (1999) 192, at 199-203 and 211-214.

22 Judgment, supra note 1, at para. 57, where the Court states that: `Germany may be criticized for the manner in which these proceedings were filed and for their timing.'

23 In Buergenthal's view, the Court had accepted Germany's request on the basis of a specific factual assumption, namely, that Germany had learnt of the full extent of the international wrongful act only weeks before the filing of the case. In his view, the subsequent proceedings, however, had shown that, in fact, Germany had been aware of all relevant facts since 1993. Hence, Germany's excuse for the late filing of the application could no longer be accepted. See the Dissenting Opinion of Judge Buergenthal, at paras 8-12 and 16-19. On the question of delay, see also the Dissenting Opinion of Judge Oda, at para. 7, stating that, although nearly 15 years had passed since the LaGrand brothers had been sentenced to death, `Germany had done nothing to indicate that it had claims against the United States for violation of the [Consular] Convention'. However, since Judge Oda had already denied the existence of a dispute between the parties (see supra note 15), he did not expressly take a view on the question of delay. As to his views on the question of delay, cf. his dissent in the Nauru case, ICJ Reports (1992) 240, at 328, para. 28.

24 Judgment, supra note 1, at para. 57.

25 The Nauru case in particular suggests that, while `delay on behalf of the applicant may render a claim inadmissible', the requirements under which this will be the case are extremely exacting; see ICJ Reports (1992) 240, at 253-254, para. 32. For a discussion of these issues, see the commentary to Draft Article 45 of the International Law Commission's Draft Articles on State Responsibility, supra note 19, at paras 6-11, reproduced in `Report of the International Law Commission on the Work of its Fifty-Third Session', UN Doc. A/56/10 (2001) at 309-311.

26 In contrast, Judge Buergenthal seemed to argue that Germany's late filing of the request had forced the Court to act proprio motu and had thereby prevented the United States from properly defending itself at the provisional measures stage. In his view, this in turn meant that the Court had to declare the request admissible and grant the interim order. However, even if one accepts that this chain of events amounts to a prejudice on behalf of the United States, it is hard to agree that it is causally related to Germany's late filing of the claim. Instead, even assuming, arguendo, that with the benefit of hindsight, the Court ought not to have admitted the request for interim protection, its order of 3 March would nevertheless have been binding on the United States. Hence the late filing as such would not have been prejudicial to the United States.

27 Judgment, supra note 1, at paras 50-52.

28 In addition, there was disagreement over another - but less important - issue, namely, whether the United States' failure to provide for consular notification was also in violation of subparas (1)(a) and (1)(c) of Article 36 CC. In this respect, the Court followed the German view and held that `Article 36, paragraph 1, establishes an interrelated régime designed to facilitate the implementation of the system of consular protection'. It followed that the - conceded - breach of Article 36(1)(b) implied violations of subparas (1)(a) and (1)(c) of that provision; see Judgment, supra note 1, at paras 73-74.

29 As to the legal foundations of the principle of diplomatic protection see the references in supra note 16.

30 Counter-Memorial, at paras 95-102. Cf. the position taken by the US Government in proceedings before the US Supreme Court (see Paraguay v. Gilmore, Breard v. Greene, 119 SCt 1137, brief for the United States as amicus curiae) and the Inter-American Court for Human Rights (see Advisory Opinion OC-16/99, `Right to Information About Consular Assistance Within the Due Process Framework', 21 Human Rights Law Journal (2000) 24 at para. 73). It should, however, also be noted that in the Tehran Hostages case, the United States had argued that Article 36(1)(b) guaranteed individual rights: see ICJ Pleadings (1980), United States Memorial, at 179.

31 See the German Memorial, supra note 1, at paras 4.86-4.120; and the US Counter-Memorial, supra note 1, at paras 95-102.

32 Emphasis added.

33 See the first sentence of Article 36(1)(b) CC: `if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State ...' (emphasis added).

34 See the references in the German Memorial, supra note 1, at paras 4.97-4.107.

35 See the German Memorial, supra note 1, at paras 4.108-4.111. Germany had inter alia based itself on Article 10 the UN General Assembly's `Declaration on the human rights of individuals who are not nationals of the country in which they live', annexed to UN General Assembly Resolution 40/144 of 13 December 1985, which had stressed the links between the right to consular assistance and due process guarantees.

36 Counter-Memorial, supra note 1, at para. 97.

37 Ibid, at para. 98.

38 Judgment, supra note 1, at para. 77, relying on a number of earlier pronouncements including Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, ICJ Reports (1950) 8; Arbitral Award of 31 July 1989, Judgment, ICJ Reports (1991) at 69-70, para. 48; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports (1994) at 25, para. 51.

39 See Dissenting Opinion of Judge Oda, at paras 23-25.

40 Dissenting Opinion of Judge Shi, at para. 15.

41 Jennings and Watts (eds), Oppenheim's International Law, vol. I/2-4 (9th ed., 1992) at 1267.

42 South West Africa Case, Preliminary Objections, ICJ Reports (1962) at 336.

43 See Judgment, supra note 1, especially paras 101-103.

44 See e.g. Judge Cancado Trindade, who has described this process as the `humanization of international law': see Inter-American Court of Human Rights, Advisory Opinion OC-16/99, supra note 30, Concurring Opinion of Judge Cancado Trindade, at para. 35. The Advisory Opinion is discussed at infra, notes 48 and 49 and the accompanying text. Cf. also Feria Tinta, `Due Process and the Right to Life in the Context of the Vienna Convention on Consular Relations: Arguing the LaGrand Case', http://www.ejil.org/journal/Vol12/No2/sr2.html, at point 3; and Oellers-Frahm, supra note 20, at 267-268.

45 See, among others, the very clear position taken by the US Department of State: `In the Department's view, Article 36 of the [Consular] Convention contains obligations of the highest order and should not be dealt lightly'; cited in Arthur W. Rovine (ed.), Digest of United States Practice in International Law (1973) 161. In the Hostages case, the United States took the view that the right of consular communication `is so essential to the exercise of consular functions that its preclusion would render meaningless the entire establishment of consular relations': see ICJ Pleadings (1980), United States Memorial, at 174 (citations omitted).

46 See United Nations Conference on Consular Relations, Official Records, UN Doc. A/Conf.25/6, vol. 1 (1963) at 337.

47 Yearbook of the International Law Commission (1960), Part I, p. 50, para. 20. The opposite view was inter alia taken by ILC members Bartos, Scelle, Ago and Edmonds: see ibid, at 50, para. 23; ibid, at 51, para. 25; and ibid, at 47, paras 37 and 41.

48 Advisory Opinion OC-16/99, supra note 30.

49 Cf. ibid, at paras 78-84.

50 The scope of the present contribution does not permit an exploration of these issues. Mention can, however, be made of the ICTY's decision in the Tadic case, which openly criticized the conditions for attributing acts of de facto organs set out in the ICJ's Nicaragua judgment, and thereby raised questions as to the relation between the two bodies; see Prosecutor v. Dusko Tadic, Appeals Chamber, Judgment of 15 July 1999, www.un.org/icty/judgment.htm, at para. 115 (but cf. the critical comments in Judge Shahabuddeen's Separate Opinion, ibid, at paras 17-21). For an analysis of the problem of proliferation, see Charney, `Is International Law Threatened by Multiple International Tribunals?', 271 Recueil des Cours (1998) 101; and Guillaume, `The Future of International Judicial Institutions', 44 International and Comparative Law Quarterly (1995) 848.

51 This is more broadly discussed in relation to the procedural default doctrine, see section 3.C below, under the heading `The Procedural Default Doctrine and Article 36(2) of the Consular Convention'.

52 Kirgis, `World Court Rules Against the United States in the LaGrand Case Arising from a Violation of the Vienna Convention on Consular Relations',: http://www.asil.org/insights/insigh75.htm (visited on 30 September 2001).

53 See e.g. the German statement made during the oral proceedings, supra note 1, CR 2000/30, at para. 7; see also the analysis by the International Law Commission's Special Rapporteur on Diplomatic Protection, John Dugard, First Report on Diplomatic Protection, UN Doc. A/CN.4/506 (2000), at para. 31. For a broader discussion of these issues, cf. Feria Tinta, supra note 44, at point 3.

54 See Judgment, supra note 1, at para. 78.

55 For an extensive discussion of these issues, see Feria Tinta, supra note 44, at point 4.

56 See supra note 35.

57 German argument during the oral hearings, supra note 1, CR 2000/27, at para. 20 (Professor Simma); and cf. also the Human Rights Committee's reports in the cases of Lynden Champagnie et al. v. Jamaica, Communication No. 445/1991, 2 International Human Rights Reports (1995) at 106, para. 7.4; Reid v. Jamaica, Communication No. 250/1987, 11 Human Rights Law Journal (1990) at 321, para. 11.5; Wright v. Jamaica, Communication No. 349/89, 13 Human Rights Law Journal (1992) at 351, para. 8.5. Finally, in its Advisory Opinion, the IACHR had found that `nonobservance of a detained foreign national's right to information, recognized in Article 36, is prejudicial to the guarantees of the due process of law; in such circumstances, imposition of the death penalty is a violation of the right not to be "arbitrarily" deprived of one's life, in the terms of the relevant provisions of the human rights treaties'. See Advisory Opinion OC-16/99, supra note 30, at para. 131.

58 See e.g. the German Memorial, supra note 1, at para. 1.08.

59 See e.g. ibid, at paras 4.17 et seq.

60 Wainright v. Sykes, 433 US 72, at 81 (1977); see also Coleman v. Thompson, 501 US 722 (1991). For a comprehensive discussion of the doctrine, cf. James S. Liebman and Randy Hertz, Federal Habeas Corpus Practice and Procedure (3rd ed., 1998); for a concise overview, cf. e.g. Henry, `Overcoming Federalism in Internationalized Death Penalty Cases', 35 Texas International Law Journal (2000) 459, at 472-474.

61 Cf. Henry, supra note 60, at 473.

62 Pub. L. No. 104-132, 110 Stat. 1214-1226 (1996), codified in various sections of 28 USC, see in particular 28 USC 2254(d) and 2254(e)(2) (Supp. 1998). On the scope of the exceptions, cf. the overview by Henry, supra note 60, at 473-474; on the effects of the Antiterrorism and Effective Death Penalty Act, see e.g. Schiffman, `Breard and Beyond: The Status of the Consular Notification and Access Under the Vienna Convention', 8 Cardozo Journal of International and Comparative Law (2000) 27, at 47-48.

63 Henry, supra note 60, at 473-474.

64 Where courts have nevertheless addressed questions of prejudice, they have usually been reluctant to accept the defendant's claim that lack of consular assistance had been prejudicial; see United States v. Esparza Ponce, 7 F Supp 2d, 1084 (SD Cal. 1998); United States v. Ademaj, 170 F 3d 58 (1st Cir. 1999); Kasi v. Commonwealth, 508 SE 2d 57 (Va 1998); and Waldron v. INS, 17 F 3d 511, at 518 (2nd Cir. 1993), cert denied 513 US 1014 (1994). For a discussion of the required standard of prejudice, cf. Schiffman, supra note 62, at 42-44; Kadish, `Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul', 18 Michigan Journal of International Law (1997) 565, at 602-609.

65 See Faulder v. Johnson, 81 F 3d 515, at 520 (5th Cir. 1996); Murphy v. Netherlands, 116 F 3d 97, at 100-101 (4th Cir. 1997); Breard v. Netherlands, 949 F Supp at 1263; Breard v. Pruett, 134 F 3d at 617 (4th Cir. 1998); Villafuerte v. Stewart, 142 F 3d at 1125 (9th Cir. 1998); and, for the present case, LaGrand v. Stewart, 133 F 3d at 1261 (9th Cir. 1998). The position taken by many US courts is best summarized in the following statement by the Fourth Circuit in Murphy v. Netherlands, 116 F 3d 97, at 100: `[T]he Vienna Convention ... has been in effect since 1969, and a reasonably diligent search by Murphy's counsel ... would have revealed the existence and applicability (if any) of the Vienna Convention. Treaties are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national.'

66 LaGrand v. Stewart, 133 F 3d 1253, at 1261 (9th Cir. 1998). For remarks on the `low profile' of Karl LaGrand's counsel before state courts, see Arizona Supreme Court, State v. LaGrand, 733 P 2d 1066, at 1069.

67 German Memorial, supra note 1, at paras 4.17-4.85.

68 United States' Counter-Memorial, supra note 1, at paras 76-87.

69 Judgment, supra note 1, at paras 88-91.

70 For a slightly different view, see Judge Koroma's Separate Opinion, at para. 5.

71 See section 3.B above under the heading `Article 36(1) of the Consular Convention and Individual Rights'.

72 Cf. Judgment, supra note 1, at paras 91 and 125.

73 Applying this to the `cause and prejudice test' of US domestic law (see supra note 64), it may perhaps be said that the ICJ judgment requires US courts to adopt a different interpretation of the `cause' requirement, but does not affect the `prejudice' requirement.

74 The question of suitable remedies for violations of Article 36 CC under US domestic law had been extensively discussed even before the start of the ICJ proceedings; see the different views expressed by Kadish, supra note 64; Shank and Quigley, `Obligations to Foreign Nationals Accused of Crime in the United States', 9 Criminal Law Forum (1999) 99; Luna and Sylvester, `Beyond Breard', 17 Berkeley Journal of International Law (1999) 147; and Deeken, `A New Miranda for Foreign Nationals', 31 Vanderbilt Journal of Transnational Law (1998) 997.

75 See Hurst Hannum, Materials on International Human Rights Law and US Criminal Law and Procedure (1989) 25; Luna and Sylvester, supra note 74, at 177.

76 Interestingly, the approach adopted under US domestic law seems far stricter than under most other European legal systems. In the words of Luna and Sylvester, supra note 74, at 177-178, `foreign nations have largely rejected the predominant American remedy for constitutional violations. Legal rules suppressing relevant probative evidence are far and few between outside of the United States.' For a concise overview of the problem, see Weigend, `Criminal Procedure: Comparative Aspects', in Kadish (ed.), Encyclopedia of Crime and Justice, vol. 2 (1983) 537-539. With particular regard to the position under German law, see further Bradley, `The Exclusionary Rule in Germany', 96 Harvard Law Review (1983) 1034.

77 In contrast, Klabbers has asserted that `[t]o say that the practical result would have been the same is to overlook the role of procedures in law': Klabbers, `Executing Mr Breard', 67 Nordic Journal of International Law (1998) 357, at 362. It is submitted that this statement does not do justice to the different functions of procedural guarantees.

78 Re Yater, 77 ILR (1973) 541.

79 Earlier instances, in which assurances and guarantees were at issue, include e.g. the Trail Smelter case, in which the arbitral tribunal specifically mentioned a series of measures apt to `prevent future significant fumigations in the United States' (cf. 3 RIAA 1934 et seq); see also the naval incidents involving the Allianca, Herzog and Bundesrath, in which the affected governments (the United States and Germany respectively) protested against interference with their shipping and demanded that positive orders be given to prevent a repetition of the acts (cf. Moore, Digest of International Law, vol. 2, at 908-909; Martens, Nouveau Recueil, 2nd Series, vol. 29, at 456, 486 respectively). In addition, states have at times asked for safeguards against repetition of unlawful acts. For example, following repeated demonstrations against the United States embassy in Moscow in 1964 and 1965, the US Government insisted `that its diplomatic establishments and personnel be given the protection which is required by international law and custom and which is necessary for the conduct of diplomatic relations between states. Expressions of regret and compensation are no substitute for adequate protection.' See the statement reproduced in 4 ILM (1965) at 698.

80 In contrast, in its initial application, Germany had asked for an annulment of the judgments against Walter LaGrand (as a form of restitution), and for compensation and satisfaction for the execution of Karl LaGrand; cf. Judgment, supra note 1, at para. 10.

81 This is e.g. shown by the fact that the International Law Commission suspended the adoption of Article 30 (dealing with guarantees and assurances) until after the Court's judgment; see Crawford, Peel and Olleson, `The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading', http://www.ejil.org/journal/new/new0109.html , at point (d).

82 Cf. Breard case, Provisional Measures, ICJ Reports (1998) at 248, Declaration by President Schwebel, first paragraph.

83 See section 3.C above, under the heading `The Procedural Default Doctrine and Article 36(2) of the Consular Convention'.

84 United States' Counter-Memorial, supra note 1, at paras 170-173.

85 This refers to the various attempts, by the US State Department to inform state and federal enforcement authorities about the obligations arising under Article 36 CC, which the United States described in the oral proceedings before the Court, supra note 1, CR 2000/28, at paras 4.5-4.12 (Ms Brown). Whether these measures actually had any effect is a matter of debate. In the words of two commentators: `Put simply, there is little incentive under the current remedial scheme for State and local authorities to comply with provisions of the Vienna Convention ... [V]iolations of the Vienna Convention are currently underdeterred and will continue to be so until a remedy with teeth is adopted and enforced.' See Luna and Sylvester, supra note 74, at 188.

86 Judgment, supra note 1, at para. 123.

87 Ibid, at para. 124.

88 Ibid, at para. 125.

89 Judge Oda is particularly critical of the decision, stating that he was `utterly at a loss as to what the Court intends to say in this subparagraph [i.e. the relevant part of the dispositif]'. See Dissenting Opinion of Judge Oda, at para. 37.

90 Judgment, supra note 1, at para. 125.

91 On this future-oriented aspect of the duty of cessation, cf. Article 30 of the ILC's Draft Articles on State Responsibility, supra note 19 and commentary thereto, supra note 25, at 216-219; Zemanek, `Responsibility of States: General Principles', in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. IV (2000) 219, at 225.

92 This is also supported by the Court's use of language. In respect of both German claims, the Court speaks of a duty, incumbent on the United States, to allow for a `review' and `consideration' of the violation of the defendants' rights to consular assistance; see Judgment, supra note 1, at paras 91 and 125 and points [4] and [7] of the dispositif.

93 Judgment, supra note 1, at para. 125; cf. Germany's statement during the oral hearings, supra note 1, CR 2000/27, at para. 34 (Professor Simma).

94 This is echoed in the Draft Article 30 of the International Law Commission's Draft Articles on State Responsibility, supra note 19, adopted shortly after the judgment, which contains extensive references to the LaGrand case; cf. ILC Draft Articles on State Responsibility, supra note 19, commentary to Article 30, at 219-222.

95 Cf. ILC Draft Articles on State Responsibility, supra note 19, commentary to Article 1, at 66-67, para. 4. According to the classic formula coined in the Chorzow Factory case, 1928 PCIJ Series A, No. 17, at 47, `reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed'.

96 Cf. ILC Draft Articles on State Responsibility, supra note 19 commentary to Article 30, at 216 and 218, paras 1, 5 and 7.

97 On the different functions of responsibility, see Dupuy, `Responsabilité et légalité', in La responsabilité dans le système international. Colloque du Mans (1991) 263, at 272 et seq.

98 ILC Draft Articles on State Responsibility, supra note 19, commentary to Article 30, at para. 9.

99 Of course, it must be conceded that, formally, the Court's judgment is only binding inter partes, i.e. between the United States and Germany (see Article 59 of the ICJ Statute). However, it is hard to imagine that US courts would distinguish between cases involving Germans and those involving other foreign nationals. In the above-quoted statement, the ICJ itself seems to admit as much, when holding that `an apology is not sufficient in this case [i.e. the LaGrand case], as it would not be in other cases where foreign nationals have not been advised ... of their rights under Article 36, paragraph 1, of the Vienna Convention' (para. 123). The same seems to be implicit in President Guillaume's declaration to the judgment, in which he maintained that, although the dispositif of the judgment could only refer to German nationals, there was `no question of applying an a contrario interpretation'.

100 Cf. the commentary to Article 45 (10bis) of the ILC's Draft Articles on State Responsibility, supra note 19, adopted after first reading, reproduced in `Report of the International Law Commission on the Work of its Forty-Fifth Session', UN Doc. 48/10 (1993) at 83, para. 5; see also the German Memorial, at paras 6.72-6.76.

101 See the commentary to Article 45 (10bis), supra note 100, at 82, para. 1.

102 Judgment, supra note 1, at para. 123.

103 See section 3.C above, under the heading `The Procedural Default Doctrine and Article 36(2) of the Consular Convention'.

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