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Consular Assistance and Rights and Remedies: Comments on the ICJ's Judgment in the LaGrand Case
Christian J. Tams *
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1. Introduction
On 27 June 2001, the International Court of Justice rendered its judgment in the LaGrand case between Germany and the United States.1 Immediate reactions centred on two aspects of the decision: (1) the Court's holding that provisional measures under Article 41 of its Statute are legally binding and impose legal obligations on states; and (2) the alleged implications of the judgment on the legality (or otherwise) of capital punishment.2 This contribution will focus on neither of these two points. The first - i.e. the legal effects of provisional measures - is of such importance that it deserves to be discussed in a separate article. As to the second question, it is submitted that the Court's judgment, and the proceedings more generally, have had less impact on the law concerning the death penalty than is sometimes assumed, or that abolitionists may have hoped. On the contrary, it will be briefly demonstrated in passing that the Court consciously avoided making any pronouncement on this issue, thereby no doubt seeking to de-politicize the dispute.3
Instead, the following analysis will try to trace some of the less evident aspects of the Court's judgment. It will be shown that, in addition to the landmark ruling on provisional measures, there are other important facets of the LaGrand judgment which affect questions as diverse as the scope of individual rights guarantees under modern international law, the legal consequences of international wrongs, and the relation between international law standards and the discretion of states to implement provisions of international law. The Court's (and the dissenting judges') discussion of these issues will be evaluated in the main part of this contribution (Part 3 below). First, it is necessary briefly to recapitulate the factual background to the LaGrand case and to summarize the history of the proceedings.
*
Gonville and Caius College, Cambridge. The author would like to thank Professor
James Crawford and Ben Olbourne for comments on earlier versions of this
article.
1 LaGrand Case (Germany v. USA), Judgment, available
at http://www.icj-cij.org/icjwww/idecisions.htm.
The written and oral pleadings of both parties are available at
http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm.
2 The fundamental importance of the Court's ruling on
provisional measures was recognized in most comments. See `World Court Asserts
Its Jurisdiction in US Case: Execution of German for a Murder in 1982 is
Faulted by Tribunal', International Herald Tribune, 28 June 2001, at A1;
`Erfolg für Deutschland im Fall der hingerichteten Brüder LaGrand',
Süddeutsche Zeitung, 29 June 2001, 4. A number of German newspapers
commented on the judgment's (alleged) implications on the death penalty: see
e.g. the headline in Die Tageszeitung, of 28 June 2001, 1, pursuant to
which the Court had denounced the capital punishment (Todesstrafe
gerügt); cf. also `Schuld ohne Reue', Süddeutsche Zeitung,
28 June 2001, 4.
3 See section 3.B below under the heading `Article 36(1) of
the Consular Convention and Individual Rights', for a brief consideration of
the Court's cautious handling of the matter.
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