World Court Digest

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III.	The International Court of Justice
1.	FUNDAMENTAL PRINCIPLES
1.1.	General Questions

¤ Vienna Convention on Consular Relations
(Paraguay v. United States of America),
Order of 9 April 1998
I.C.J. Reports 1998, 248

[p. 257] 38. Whereas the issues before the Court in this case do not concern the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes; and whereas, further, the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal;

[p. 260 Decl. Oda] The Court cannot act as a court of criminal appeal and cannot be petitioned for writs of habeas corpus. The Court does not have jurisdiction to decide matters relating to capital punishment and its execution, and should not intervene in such matters.

[pp. 261-262 Decl. Oda] 5. I would like to turn to some general issues relating to provisional measures. First, as a general rule, provisional measures are granted in order to preserve rights exposed to imminent breach which is irreparable and these rights must be those to be considered at the merits stage of the case, and must constitute the subject-matter of the Application or be directly related to it. In this case, however, there is no question of such rights (of States parties), as provided for by the Vienna Convention, being exposed to an imminent irreparable breach.

6. Secondly, in order that provisional measures may be granted by the Court, the Court has to have, at the very least, prima facie jurisdiction to deal with the issues concerning the rights of the States parties. However I believe that, as regards the present request for provisional measures, the Court does not even have prima facie jurisdiction to handle this matter.

7. Thirdly, if the request in the present case had not been granted, the Application itself would have become meaningless. If that had been the case, then I would have had no hesitation in pointing out that the request for provisional measures should not be used to ensure that the main Application continue. In addition the request for provisional measures should not be used by applicants for the purpose of obtaining interim judgments that would affirm their own rights and predetermine the main case.

8. I have thus explained why I formed the view that, given the fundamental nature of provisional measures, those measures should not have been indicated upon Paraguay's request.

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