Consular Assistance: Rights, Remedies, and Responsibility Comments on the ICJ's Judgment in the LaGrand Case
22 Pages Posted: 10 Jun 2009
On 27 June 2001, the International Court of Justice rendered its judgment in the LaGrand case between Germany and the United States. Immediate reactions centred on two aspects of the decision: (i) the Court's holding that provisional measures under article 41 of its Statute are legally binding and impose legal obligations on States, and (ii) the alleged implications of the judgment on the legality (or otherwise) of capital punishment. This contribution will focus on neither of these two points. The first - i.e. the legal effects of provisional measures - is of such importance that it deserves to be discussed in a separate article. As to the second question, it is submitted that the Court's judgment, and the proceedings more generally, have had less impact on the law concerning the death penalty than is sometimes assumed, or that abolitionists may have hoped. On the contrary, it will be briefly demonstrated in passing that the Court consciously avoided making any pronouncement on this issue, thereby no doubt seeking to de-politicise the dispute. Instead, the following analysis will try to trace some of the less evident aspects of the Court's judgment. It will be shown that in addition to the landmark ruling on provisional measures, there are other important facets of the LaGrand judgment which affect questions as diverse as the scope of individual rights guarantees under modern international law; the legal consequences of international wrongs, and the relation between international law standards and the discretion of States to implement provisions of international law. The Court's (and dissenting judges') discussion of these issues will be evaluated in the main part of this contribution (III.). First it is necessary briefly to recapitulate the factual background to the LaGrand case and to summarise the history of proceedings (II.).
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