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) Constanze Schulte * Download the Complete Survey (RTF Format) (Order of 9 April 1998, for the text see the ICJ Website: http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm.) Procedural history The Court´s Order: Content and Reasoning The US Reaction Conclusion 1 Procedural history On 3 April 1998, Paraguay introduced proceedings against the United States before the International Court of Justice1 and, at the same time, submitted a request for provisional measures.2 The proceedings relate to the trial against Paraguayan national Angel Francisco Breard in the United States. Mr Breard had been arrested on 1 September 1992, and was convicted for murder and attempt of rape by a Court of the Commonwealth of Virginia on 24 June 1993. On 22 August 1993, the death penalty was imposed. The appeal of Mr Breard failed. During these proceedings, the accused had never been informed of his right to consular assistance under Article 36, subparagraph 1(b), of the Vienna Convention on Consular Relations. Neither had the Paraguayan consulate been notified. Paraguay submits that it did not come to know of the case before 1996. Assisted by Paraguayan consular officers, Mr Breard filed a petition to the Federal Court of First Instance for a writ of habeas corpus on 30 August 1996 on the basis of a violation of the Vienna Convention. His claim was rejected because of a municipal law doctrine of procedural default. According to this doctrine, Mr Breard could not raise the argument of a violation of the Vienna Convention because he had not asserted his rights under that Convention in the prior proceedings. His appeal to the intermediate federal court failed for the same reason. A separate lawsuit by Paraguay also proved unsuccessful.3 Mr Breard finally filed a petition for a writ of certiorari to the US Supreme Court.4 The United States never denied that they had in fact violated their obligations under the Vienna Convention. An official apology was made, shortcomings in current practice were acknowledged and measures were announced to ensure better future compliance, namely by means of the dissemination of pocket-size reference cards to law enforcement officers.5 Moreover, the Department of State declared that copies of a booklet "Consular Notification and Access" had been sent to all 50 states.6 However, the parties disagree about the consequences arising from that violation. Paraguay requests the Court to adjudge and declare that it is entitled to resitutio in integrum, that the proceedings against Mr Breard are void, that a re-trial of the accused, as well as any kind of future proceedings, must be carried out in accordance with the obligations under the Vienna Convention and that the United States must provide a guarantee of non-repetition. Furthermore, since the execution of Mr Breard was scheduled by the Circuit Court of Arlington County, Virginia, for 14 April 1998, Paraguay asked the Court for provisional measures to ensure that Mr Breard not be executed pending the proceedings. * Ludwig-Maximilians-Universität, München. 1 Application of the Republic of Paraguay, Case concerning the Vienna Convention on Consular Relations , http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm. 2 Request for the indication of provisional measures of protection submitted by the government of the Republic of Paraguay, http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm. 3 Cf. Aceves, "Application of the Vienna Convention on Consular Relations/Breard v. Greene", 92 AJIL (1998), at 517 et seq . 4 For a summary of all procedural steps relating to Mr Breard´s trial, cf. the application of the Republic of Paraguay to the ICJ, supra note 1; the Court´s order, Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) , Request for the indication of provisional measures, Order, 9 April 1998, http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm and the Supreme Court decision of 13 April, Breard v. Greene , 118 S. Ct. 1352 (per curiam). 5Cf. the US agent in the pleadings before the Court on 7 April, http://www.icj-cij.org/icjwww/idocket/ipaus/ipausframe.htm at 2.19 et seq . 6 Daily press briefing Department of State, 15 April 1998, http://secretary.state.gov/www/briefings/9804/980415db.html, at 1 et seq .
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