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) 3 The US Reaction On 13 April, US Secretary of State Madeleine Albright officially requested the Virginian Governor to halt the execution, arguing that she was worried about "potential harm to Americans abroad". At the same time, however, she expressed her reluctance in view of the seriousness of the crime. The potential harm to the authority of the ICJ obviously played a subordinate role.20 On the same day, the Department of Justice submitted a brief to the Supreme Court, signed by the legal advisor of the Department of State, in which that Court was asked not to intervene in the execution.21 It was obviously taken for granted that the ICJ decision had no binding force and was just one of a variety of factors to be taken into account.22 The US Supreme Court ruled in a 6-3 decision23 on April 14 to reject Breard´s request. It stated that even if a treaty violation could be demonstrated, there was no evidence that it had had any effect on the trial. As to the ICJ, the Supreme Court held: "If the Governor wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him."24 It did not even touch upon the issue of binding effect of provisional measures. This was not the point raised by the dissenting judges either. Rather, they argued that more time was needed for consideration of the case.25 Virginian Governor Gilmore refused to block the execution, and it took place as scheduled.26 The Department of State brought as justification the point that legally there had been no obligation to halt the execution, and politically that they had engaged in a good faith effort to implement the ICJ order by submitting a request to Governor Gilmore, who ultimately made a sovereign discretionary decision. 27 If the Court order had been binding and the US had been obliged under Article 94(1) to give effect to it, the argument that it was a decision of a federal unit would certainly be no excuse.28 However, the binding force of ICJ provisional measures is a highly controversial issue, even within the Court itself.29 The doctrine is divided,30 and a discussion of this problem would be beyond the scope of the present paper. However, I have serious doubts as to the alleged binding force. In my view, an examination of the wording, the travaux préparatoires and the Court´s jurisprudence seems to suggest that states are not strictly bound to comply with an order, but are merely under an obligation to take the Courts´ indications seriously into account.31 Moreover, one has to bear in mind that the Court hardly examines the legal situation, but presumes the existence of certain rights and indicates measures to protect them. The call for binding force would be more legitimate if it considered at least whether there was also in law a prima facie case. Of course, any obligation of conduct deriving from other rules of international law remains untouched. An order referring to such an obligation would be declaratory without creating an additional obligation, as in the Genocide Case, where the Court merely reiterated obligations which the parties already had under international law.32 Therefore, I believe that the US did not breach their obligations under the ICJ Statute by executing Mr Breard, since the federal administration engaged in a good faith effort to implement the decision and there are no indications that the decision was entirely ignored. Of course, the US would have been obliged not to execute Mr Breard if there had in fact been a duty under the Vienna Convention to retry him, as Paraguay contends. This is precisely the question that the Court must deal with in the merits and cannot conclusively be answered in this context. I will limit myself to a few remarks to sketch out the difficulties which Paraguay will have in sustaining its claim: The obligation in question has been violated on numerous occasions throughout the world. Nevertheless, Paraguay presented no state practice where it was claimed that a sentence should be void as a consequence. The relevant provision of the Vienna Convention does not indicate that such a grave consequence was intended. Why should there be a new trial if the rights to legal assistance, to defence and to access to family members were complied with, and if the functions to be fulfilled by the consular service were not necessary to enable the accused to make use of his procedural rights? In the concrete case, Paraguay hardly presented enough evidence to show that a different outcome of the criminal proceedings would have been achieved if the violation of the Vienna Convention had not occurred. 20 Department of State, Daily press briefing, 13 April 1998, http://secretary.state.gov/www/briefings/9804/980413db.html. 21 Department of State, supra note 6, at 2. 22 Cf. Department of State spokesman James Rubin: "Obviously, the United States is a country of laws that is going to give due respect to the ICJ. That doesn't mean we have to agree with it. It just means that we will give respect to it and we will act accordingly and make our decisions based on our laws and our constitution, and the extent to which we want to see the principles of international law respected." (13 April), supra note 20; on 15 April: "That Court's decision was not a binding decision, it was not written in a binding form.", supra note 6, at 2. 23 Supra note 4; for a critical comment on the decision, see Aceves, supra note 3, at 521 et seq . 24 The Department of State, on the other hand, had shifted the responsibility to the Supreme Court: cf. James Rubin, supra note 20: "...The question of whether this court´s request for a stay of execution should be granted is something the Supreme Court is considering...", at 4, 6. 25 Dissenting Opinions of Justice Stevens and Justice Breyer, ibid. 26 Amnesty International Report AMR 51/27/98, May 1998, "United States of America: The Execution of Ángel Breard: Apologies are not Enough", http://www.amnesty.org/ailib/aipub/1998/AMR/25102798.htm. 27 Department of State, supra note 6, at 1 et seq . 28 Article 27 Vienna Convention on the Law of Treaties, 1155 UNTS 331. 29 Cf. the discussions in the Separate Opinions of Judges Ajibola and Weeramantry, Application of the Convention on the Prevention and Punishment of Genocide, Provisional Measures, Order of 13 September 1993, ICJ Reports (1993) 325, at 374 et seq . and 397 et seq . 30 For an extensive discussion with further references, see J. B. Elkind, Interim Protection: A Functional Approach (1981), at 153 et seq , Sztucki, supra note 9, at 260 et seq . 31 Cf. Thirlway, "The Indication of Provisional Measures by the International Court of Justice", in R. Bernhardt, Interim Measures accorded by International Courts (1994) 1, at 28 et seq . 32 Thirlway, supra note 31, at 32 et seq .
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