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

Abstract

The International Court of Justice, in a landmark ruling in the LaGrand case, 1 held that interim orders under Article 41 of its Statute impose binding legal obligations upon the parties to the dispute. Quite apart from this controversial conclusion, the judgment is remarkable in a number of other respects. In the circumstances of the case, Germany had asked the Court to declare that the United States' treatment of two German nationals, Karl and Walter LaGrand, was in violation of the 1963 Vienna Convention on Consular Relations (VCCR). The two brothers had been arrested in 1982 for various crimes, including murder, and were subsequently tried and sentenced to death by US courts. In the course of the proceedings, they had not been informed of their right, as guaranteed by Article 36 of the VCCR, to seek consular assistance. In its first claim (see paras 65-78), Germany contended that this omission not only violated its own rights as a state party to the Convention — a violation that the US conceded — but also the individual rights of the two brothers. The Court granted this claim, thereby recognizing that Article 36 of the Convention protects individual rights. Its decision affirms the view that under modern international law, individual rights need not necessarily derive from classical human rights treaties, but are a pervasive phenomenon — a view that was recently also held by the Inter-American Court of Human Rights (IACHR). 2 While the IACHR however went on to discuss the relation between individual rights to consular assistance and procedural human rights, the ICJ stopped short of recognizing that Article 36 of the VCCR was a human right, thereby prudently avoiding a politicization of the dispute. In its second claim (paras 79-91), Germany alleged that the United States had violated its duty to effectively implement the right to consular assistance. Under the