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World Court Digest

Summaries of the Decisions

Vienna Convention on Consular Relations

(Paraguay v. United Sates of America)

Provisional Measures

Order of 9 April 1998

On 9 April 1998 the Court indicated provisional measures in the case concerning the Vienna Convention on Consular Relations (Paraguay versus the United States of America) which had been brought to the Court only on 3 April 1998. The underlying facts concerned the alleged violations of the Vienna Convention on Consular Relations of 24 April 1963 with respect to the case of Mr. Angel Breard, a Paraguayan national convicted of murder in Virginia (United States). The execution of Mr. Breard was scheduled for 14 April 1998. Under Article 36 , para. 1, (b), of the Vienna Convention on Consular Relations, Mr. Breard, in his quality as a foreigner in the United States, had the right that the competent authorities of the receiving State notify him without delay of his rights to have informed "the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial ...". The authorities of the State of Virginia had not so informed Mr. Breard when he was arrested in 1992 and convicted in 1993. The attempt by Mr. Breard himself, undertaken since 1996, to benefit from the rights flowing from the Convention failed because, according to US law, they were belated. With a view to the imminent execution, Paraguay asked the Court to adjudge and declare that it is entitled to restitutio in integrum, that is, the re-establishment of the situation that existed before the United States failed to provide the required notification according to the Convention. In view of the urgency of the case, Paraguay also requested the Court to indicate provisional measures to the effect that the United States should refrain from executing Mr. Breard before the Court had decided on Paraguay's claims; Paraguay made it clear that it did not seek the release of Mr. Breard.

In its Order of 9 April 1998 the Court unanimously called upon the United States to "take all measures at its disposal" to prevent the execution of Mr. Breard pending the final decision of the Court and to inform the Court on the measures taken to that effect.

The jurisdiction of the Court resulted from Art. 1 of the Optional Protocol to the Vienna Convention to which both Parties, Paraguay and the United States were Parties. The United States had, however, contended that there was no dispute in the meaning of this provision since the United States had recognized its failure to inform Mr. Breard and that it had expressed its regret to Paraguay in this context what was the usual reaction of Governments in such cases. Furthermore the United States argued that the assistance of consular officers would not have changed the outcome of the proceedings and that in any case there was no entitlement to restitutio in integrum under the terms of the Convention or in State practice. These questions concerned, however, according to the findings of the Court, the merits of the case, while in the present phase of the proceedings it was only concerned with the preservation of rights and the prevention of irreparable damage to those rights which were the subject of the dispute. With a view to the fact that the execution was ordered for 14 April 1998 and the execution would render it impossible for the Court to order the relief Paraguay sought, the Court found that the circumstances required it to indicate the provisional measures requested by Paraguay. The Court stated expressly that it was not concerned with the question of the death penalty as such nor with any activity as a court of appeal, but only with the resolution of an international dispute between two States.

Post-Order Developments

Notwithstanding the Order of the Court and notwithstanding a request of the Secretary of State addressed to the Governor of Virginia on 13 April 1998 asking him to stay the execution, Mr. Breard was executed as scheduled on 14 April 1998. The Governor of Virginia took the position that had been argued by the Department of Justice, namely that the "rulings of the International Court of Justice are not enforceable by the courts of the United States, that the International Court of Justice has no authority to intervene in the criminal justice system of the Commonwealth of Virginia...". He underlined his duty to ensure that "those who reside within our borders ... may conduct their lives free from fear of crime". Since Mr. Breard had "committed a heinous and depraved murder, his guilt being unquestioned, and the legal issues being resolved against him, and the U.S. Supreme Court having denied the petitions of Breard and Paraguay", the Governor found no reason to interfere with this sentence.

Although Mr. Breard had been executed, the proceedings remained pending because issues related to the case of Mr. Breard and concerning the Vienna Convention were still to be resolved. After an extension of the time-limits and after the filing of the Memorial by Paraguay, Paraguay, by a letter of 2 November 1998, informed the Court that it did not wish to go on with the proceedings and that the case be removed from the list. By an Order of 10 November, and after having received the United States' approval for the discontinuance of the proceedings, the Court removed the case from the List.