Germany vs.

USA 1999

FACTS:
In 1982, the authorities of the State of Arizona arrested and detained two
German nationals, Karl and Walter LaGrand who were tried and sentenced to death.
Germany instituted proceedings before the ICJ against the US for violations of the Vienna
Convention on Consular Relations allegedly committed by the US. (Germany bases the
jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on
Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes, which
accompanies the Vienna Convention on Consular Relations.)

Germany claims that Karl and Walter LaGrand were tried and sentenced to death
without having been informed, as is required under Article 36 (1) (b) of the Vienna
Convention on Consular Relations of their rights under that provisions. Under Article
36 (1) (b), the US should have informed without delay the consular post of Germany that a
German national is arrested or committed to prison or to custody pending trial or is
detained in any other manner. And they should have informed the LaGrand brothers
without delay of their right to contact German authorities.
Germany further alleged that the failure to provide the required notification
precluded Germany from protecting its nationals' interests in the US as provided for by
Articles 5 and 36 of the Vienna Convention at both the trial and the appeal level in the US
courts.

After having filed its Application, Germany also submitted an urgent request
for the indication of provisional measures. In its request for the indication of
provisional measures of protection, Germany recalls that Karl LaGrand was executed on 24
February 1999, despite all appeals for clemency and numerous diplomatic interventions by
the German Government at the highest level so the request for the urgent indication of
provisional measures is submitted for the interest of Walter LaGrand whose execution was
scheduled March 3, 1999, only a day after Germany filed its request on March 2.

Whereas, Germany asks that, pending final judgment in this case, the Court indicate
that : "The United States should take all measures at its disposal to ensure that Walter
LaGrand is not executed pending the final decision in these proceeding.

ISSUE:
1. Whether or not the ICJ has jurisdiction.
2. Whether ICJ may indicate provisional measures.

RULING:
1
The basis of jurisdiction of the Court is Article 1 of the of the Optional Protocol
concerning the Compulsory Settlement of Disputes, which accompanies the Vienna
Convention on Consular Relations by which both Germany and the US were parties.
 Article 1 of Optional Protocol states that Disputes arising out of the interpretation or
application of the Convention shall lie within the compulsory jurisdiction of the ICJ and may
accordingly be brought before the Court by an application made by any party to the dispute
being a Party to the present Protocol.

In this case, in its Application, Germany stated that the issues in dispute between
itself and the US concern Articles 5 and 36 of the Vienna Convention. In that regard, the
Court held that in the light of the requests submitted by Germany in its Application and of
the submissions made therein, there exists prima facie a dispute with regard to the
application of the Convention within the meaning of Article 1 of the Optional Protocol.
Therefore, the Court has satisfied itself that, prima facie, it has jurisdiction under Article 1
of the aforesaid Optional Protocol to decide the dispute between Germany and the United
States.

2
The basis of ICJ’s authority to indicate provisional measures was Article 75 (1) of the
Rules of Court and Article 41 of the ICJ statute.

Article 75 of the Rules of Court of ICJ provides that the Court "may at any time
decide to examine proprio motu whether the circumstances of the case require the
indication of provisional measures which ought to be taken or complied with by any or al1
of the parties" As a rule, the Court may make use of this power, irrespective of whether or
not it has been seised by the parties of a request for the indication of provisional measures.
In such a case it may, in the event of extreme urgency, proceed without holding oral
hearings and it is for the Court to decide in each case if, in the light of the particular
circumstances of the case, it should make use of the said power.

Moreover, Article 41 of its Statute is intended to preserve the respective rights of

the parties pending its decision, and presupposes that irreparable prejudice shall not be
caused to rights which are the subject of a dispute in judicial proceedings. It follows that
the Court must be concerned to preserve by such measures the rights which may
subsequently be adjudged by the Court to belong either to the Applicant, or to the
Respondent; and whereas such measures are only justified if there is urgency.

In this case, the Court held that the execution of Walter LaGrand is ordered for 3
March 1999; and whereas such an execution would cause irreparable harm to the
rights claimed by Germany in this particular case. The Court also finds that the
circumstances require it to indicate, as a matter of the greatest urgency and without any
other proceedings, provisional measures in accordance with Article 41 of its Statute and
with Article 75, paragraph 1, of its Rules.