Jurisprudence of the International Court of Justice - Current Survey: Order Issued in the Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) 2 The Court´s Order: Content and Reasoning On 9 April 1998, the ICJ unanimously issued an order asking the United States to take "all measures at its disposal" to prevent the execution of Mr Breard. 7 Two judges, though, expressed their disquiet with the decision.8 Judge Schwebel stressed that he voted in favour of the order because it was necessary to protect the rights claimed by Paraguay in an urgent situation, but also recalled that the US had apologized and taken steps to improve its practice under the Vienna Convention. He argued that there had never before been an assertion that a sentence should be void because of a violation of the said provision of the Vienna Convention. Judge Oda held that he would rather have dismissed the claim. In his view, no prima facie jurisdiction and no Paraguayan "rights" to be preserved existed, but he voted in favour of the order "for humanitarian reasons". This form of argument is quite dangerous because it implies that the Court acted ultra vires , which could be used as justification for non-compliance. In my view, a court is either empowered to make a decision or is not; if the legal prerequisites are found to be lacking (which seems to be only Judge Oda´s opinion), it must not issue an order on a moral basis. The basis for an order for interim protection in the ICJ Statute is Article 41(1), which reads: "The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party." In practice, the Court, after having established that it has prima facie jurisdiction, regards urgency and danger of irreparable harm as main prerequisites for the granting of provisional measures. Other factors have only occasionally been taken into account. 9 In the case at hand, the decision was based on the main conditions without reference to additional factors. Since the relief sought by Paraguay was dependent on Mr Breard´s execution being halted, the Court was satisfied that there was a danger of irreparable harm to the alleged rights and that there was urgency given the execution immediately pending.10 Prima facie jurisdiction is required because of two considerations: on the one hand, the function of interim protection is to provide an expeditious remedy; therefore it cannot be that disputes over jurisdiction have to be definitively decided. On the other hand, the fundamental principle of consent to ICJ proceedings must be respected. The Court therefore, before adopting provisional measures, examines whether there is a possibility of substantive jurisdiction, without any binding effect for the further proceedings.11 The jurisdiction was prima facie based on Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the compulsory settlement of disputes,12 to which both the United States and Paraguay are parties.13 Article I provides that disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the Court. The United States contests that Article I is applicable. It denies the existence of such a dispute, since it has recognized a violation of the Vienna Convention. It argues that the dispute concerns a general principle of reparation which lies beyond the Convention, since the latter does not expressly grant the relief which Paraguay seeks. Admittedly, the interpretation of the Convention itself is not controversial, and the relevant provision does not pronounce on the legal consequences of a breach of the obligations contained therein. Therefore, it is an issue of the general law of state responsibility, and one might indeed question whether this is still comprised by Article I. However, the Court ruled that there exists a dispute on whether restitutio in integrum is a remedy available under the Convention, and that this was sufficient to establish prima facie jurisdiction.14 The United States is of the opinion that Paraguay does not possess a valid legal claim. Its argument is twofold: on the one hand, it objects to the contention that a violation of Article 36 might ever lead to the nullity of a sentence and require a re-trial of an accused. On the other hand, it argues that no prejudice has been caused to Mr Breard, because notification and information would not have altered the outcome of the trial. Mr Breard had been living in the US since 1986 and spoke English well. He was defended by two experienced local attorneys and had contact with his family. Paraguay´s point is that consular advice might have pursuaded him to plead guilty instead of taking the witness stand which, according to Paraguay, would have resulted in life imprisonment instead of the death penalty. Alternatively, he might have been persuaded to make use of the right not to incriminate himself. In the witness stand, he confessed to having committed the crime, arguing that a satanic curse placed on him by his former father-in-law had forced him to act as he did. In Paraguay´s view, the accused confessed because of misconceptions about the American legal system. It argues that Mr Breard believed his behaviour would lead to mercy by the jury, which would have been the case in Paraguay, whereas it effectively resulted in the death penalty in the US. As to the alleged plea offer, the US holds that there has never been such an offer to the accused, and that consular assistance would not have caused the accused to change his tactics, because he decided not to plead guilty against the advice of his attorneys and his mother without being led by misconceptions about the American legal system. To the second point, it argues that the given clearly established evidence would have sufficed for the condemnation even without the confession of Mr Breard. Obviously, these points deal with the merits. Yet the Court entirely reserved the discussion on the existence of the sought relief for the merits stage. One may ask whether provisional measures should be indicated where a claim is manifestly unfounded, as the US argues.15 The Court has always been extremely reluctant to regard the prospects for success in the merits as a relevant circumstance. 16 However, since the function of interim measures is protection of rights, it must at least be possible that such rights exist. In Judge Shahabudeen´s separate opinion in the Passage through the Great Belt case, he pointed out that at least some possibility of success on the merits was necessary, and interpreted the practice of the Court as implicit recognition of such a test.17 In the same case, for example, the Court had stated that a right of passage in favour of Finland undisputedly existed, but that its nature and extent were controversial.18 But given that provisional measures must not prejudge the merits, the conditions to be met are not very strict. Applied to the present case, it was sufficient to assert that in fact Paraguay possessed rights under the Vienna Convention, on whose extent, or more precisely on the consequences of their violation, there was a dispute. As to the relief Paraguay ultimately seeks, the Court emphasized: "... the existence of the relief sought by Paraguay ... can only be determined at the stage of the merits ..." (para.33). Finally, the US warned the Court that it should not adopt the role of a universal court of criminal appeal. In its order, the Court emphasized that in fact its function was not to act as a court of criminal appeal, but to resolve international legal disputes between states.19 Yet, it is not clear what consequences flow from that premise in disputes where states claim that there is an internationally wrongful act consisting in a maltreatment of one of its nationals. Cases dealing with the treatment of aliens have been decided by the Court in cases of diplomatic protection. Where the Court wants to draw the borderline, asserting that it is not a court of criminal appeal, is uncertain. It is not sure whether it will clarify this point in the merits. As a matter of principle, I do not see any reason why it should be excluded that state A brings a case against state B on the basis of a violation of an obligation concerning the treatment of A´s nationals in B. A mere danger of an increasing workload for the ICJ should be no basis for rejection. 7 For a first comment on the order, see Bekker and Highet, "International Court of Justice Orders United States to Stay Execution of Paraguayan National in Virginia", ASIL Insight (April 1998) http://www.asil.org/insigh17.htm. 8 Judge Koroma appended a declaration as well, but merely explained once more the Court´s reasoning. 9Merrills, "Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice", 44 International and Comparative Law Quarterly (1995) 90, at 106; Sztucki, "Interim Measures in the Hague Court", Deventer (1983), at 102-132. 10 ICJ, supra note 4, at para.37. 11 Cf. para. 22 in the present order, supra note 4; Nuclear Tests Case (Australia v. France), Interim Protection Order of 22 June 1973, ICJ Reports (1973) 99, at 102, para 17; Nicaragua Case (Nicaragua v. USA) , ICJ Reports (1984), at 179, para. 24; for further references to the Court´s jurisprudence and discussion, see Merrills, supra note 9, at 91 et seq ., Sztucki, supra note 9, at 221-260. 12 596 UNTS 487. 13 ST/LEG/SER.E/15, at 78. 14 ICJ, supra note 4, paras 24 et seq . 15 Cf. the submissions in the pleadings, supra note 5, at 3.6 et seq . 16 Merrills, supra note 9, at 114 et seq ; Sztucki, supra note 9, at 123 et seq . 17 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports (1991) 12, at 30-35. 18 Ibid, at 22. 19 ICJ, supra note 4, para.38.
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Tuesday, October 14, 2003 01:02PM