|III.||The International Court of Justice|
(Germany v. United States of America)
Judgment of 27 June 2001
[pp. ] 107. ... [T]he lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders.
[p. D.O. Buergenthal] 21. Germany was aware of the position of the United States Government regarding the non-binding character of orders of this Court indicating provisional measures in general and with its interpretation of the Order in the Breard case in particular.
22. It is difficult to understand, therefore, what Germany sought to achieve with its 2 March 1999 request for provisional measures. It certainly could not have been surprised that the United States would adopt the same position with regard to the requested order as it did in relation to the Breard Order of 9 April 1998. There was nothing in the order Germany requested on 2 March 1999 that would have provided the authorities of the United States with a legal basis justifying the Solicitor General to reverse his official position adopted less than a year earlier. In the absence of such a justification, it would have been unprecedented for him not to adhere to his earlier view. Moreover, and that is even more important, the Court itself had not in the meantime clarified its position on the subject. Consequently, when Germany asked the Court to proceed proprio motu and without a hearing, and sought an order identical to that the Court issued in the Breard case, Germany breached an obligation of elementary fairness it owed the United States in the circumstances of this case. It is true, of course, that a party in proceedings before this Court, as before any other court, must bear the consequences of having assumed, erroneously in retrospect, that a given order is non-binding and being held responsible for the resulting violation. But this fact does not relieve Germany of responsibility for having engaged in a litigation strategy prejudicial to the United States.