|III.||The International Court of Justice|
|3.||THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE|
|3.10.4.||Binding Effect / Compliance|
(Germany v. United States of America)
Judgment of 27 June 2001
"that the United States, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice on the matter, violated its international legal obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending".
[pp. ] 98. Neither the Permanent Court of International Justice, nor the present Court to date, has been called upon to determine the legal effects of orders made under Article 41 of the Statute. As Germany's third submission refers expressly to an international legal obligation "to comply with the Order on Provisional Measures issued by the Court on 3 March 1999", and as the United States disputes the existence of such an obligation, the Court is now called upon to rule expressly on this question.
99. The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty's object and purpose.
100. The French text of Article 41 reads as follows:
"1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires due droit de chacun doivent être prises à titre provisoire.
2. En attendant l'arrêt définitif, l'indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité." (Emphasis added.)
In this text, the terms "indiquer" and "l'indication" may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words "doivent être prises" have an imperative character.
For its part, the English version of Article 41 reads as follows:
"1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council." (Emphasis added.)
According to the United States, the use in the English version of "indicate" instead of "order", of "ought" instead of "must" or "shall", and of "suggested" instead of "ordered", is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as "indicate" and "ought" have a meaning equivalent to "order" and "must" or "shall".
101. Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute "forms an integral part of the present Charter". Under Article 111 of the Charter, the French and English texts of the latter are "equally authentic". The same is equally true of the Statute.
In cases of divergence between the equally
authentic versions of the Statute, neither it nor the
Charter indicates how to proceed. In the absence of
agreement between the parties in this respect, it is
appropriate to refer to paragraph 4 of Article 33 of
the Vienna Convention on the Law of Treaties, which
in the view of the Court again reflects customary international
law. This provision reads "when a comparison of the
authentic texts discloses a difference of meaning which
the application of Articles 31 and 32 does not remove
the meaning which best reconciles the texts, having
regard to the object and purpose of the treaty, shall
The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41.
102. The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.
103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of
"the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute" (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199).
Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented (see Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18, and p. 11, para. 32, point 1 A; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 23, para. 48, and p. 24, para. 52 B; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349, para. 57, and p. 350, para. 61 (3); Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), pp. 22-23, para. 41, and p. 24, para. 49 (1)).
104. Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of its object and purpose, it does not consider it necessary to resort to the preparatory work in order to determine the meaning of that Article. The Court would nevertheless point out that the preparatory work of the Statute does not preclude the conclusion that orders under Article 41 have binding force.
105. The initial preliminary draft of the
Statute of the Permanent Court of International Justice,
as prepared by the Committee of Jurists established
by the Council of the League of Nations, made no mention
of provisional measures. A provision to this effect
was inserted only at a later stage in the draft prepared
by the Committee, following a proposal from the Brazilian
jurist Raul Fernandes.
Basing himself on the Bryan Treaty of 13 October 1914 between the United States and Sweden, Raul Fernandes had submitted the following text:
"Dans le cas où la cause du différend consiste en actes déterminés déjà effectués ou sur le point de l'être, la Cour pourra ordonner, dans le plus bref délai, à titre provisoire, des mesures conservatoires adéquates, en attendant le jugement définitif." (Comité consultatif de juristes, Procès-verbaux des séances due comité, 16 juin-24 juillet 1920 (avec annexes), La Haye, 1920, p. 609.)
In its English translation this text read as follows:
"In case the cause of the dispute should consist of certain acts already committed or about to be committed, the Court may, provisionally and with the least possible delay, order adequate protective measures to be taken, pending the final judgment of the Court." (Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, p. 609.)
The Drafting Committee prepared a new version of this text, to which two main amendments were made: on the one hand, the words "la Cour pourra ordonner" ("the Court may ... order") were replaced by "la Cour a le pouvoir d'indiquer" ("the Court shall have the power to suggest"), while, on the other, a second paragraph was added providing for notice to be given to the parties and to the Council of the "measures suggested" by the Court. The draft Article 2bis as submitted by the Drafting Committee thus read as follows:
"Dans le cas où la cause due différend consiste en un acte effectué ou sur le point de l'être, la Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire.
"En attendant son arrêt, cette suggestion de la Cour est immédiatement transmise aux parties et au Conseil." (Comité consultatif de juristes, Procès-verbaux des séances due comité, 16 juin-24 juillet 1920 (avec annexes), La Haye, 1920, p. 567-568.)
The English version read:
"If the dispute arises out of an act which has already taken place or which is imminent, the Court shall have the power to suggest, if it considers that circumstances so require, the provisional measures that should be taken to preserve the respective rights of either party.
Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Council." (Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, pp. 567-568.)
The Committee of Jurists eventually adopted a draft Article 39, which amended the former Article 2bis only in its French version: in the second paragraph, the words "cette suggestion" were replaced in French by the words "l'indication".
106. When the draft Article 39 was examined by the Sub-Committee of the Third Committee of the first Assembly of the League of Nations, a number of amendments were considered. Raul Fernandes suggested again to use the word "ordonner" in the French version. The Sub-Committee decided to stay with the word "indiquer", the Chairman of the Sub-Committee observing that the Court lacked the means to execute its decisions. The language of the first paragraph of the English version was then made to conform to the French text: thus the word "suggest" was replaced by "indicate", and "should" by "ought to". However, in the second paragraph of the English version, the phrase "measures suggested" remained unchanged.
The provision thus amended in French and in English by the Sub-Committee was adopted as Article 41 of the Statute of the Permanent Court of International Justice. It passed as such into the Statute of the present Court without any discussion in 1945.
107. The preparatory work of Article 41 shows that the preference given in the French text to "indiquer" over "ordonner" was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the 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.
108. The Court finally needs to consider whether Article 94 of the United Nations Charter precludes attributing binding effect to orders indicating provisional measures. That Article reads as follows:
"1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."
The question arises as to the meaning to
be attributed to the words "the decision of the International
Court of Justice" in paragraph 1 of this Article. This
wording could be understood as referring not merely
to the Court's judgments but to any decision rendered
by it, thus including orders indicating provisional
measures. It could also be interpreted to mean only
judgments rendered by the Court as provided in paragraph
2 of Article 94. In this regard, the fact that in Articles
56 to 60 of the Court's Statute, both the word "decision"
and the word "judgment" are used does little to clarify
Under the first interpretation of paragraph 1 of Article 94, the text of the paragraph would confirm the binding nature of provisional measures; whereas the second interpretation would in no way preclude their being accorded binding force under Article 41 of the Statute. The Court accordingly concludes that Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character.
109. In short, it is clear that none of the sources of interpretation referred to in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect.
110. The Court will now consider the Order of 3 March 1999. This Order was not a mere exhortation. It had been adopted pursuant to Article 41 of the Statute. This Order was consequently binding in character and created a legal obligation for the United States.
111. As regards the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999, the Court observes that the Order indicated two provisional measures, the first of which states that
"[t]he United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order".
The second measure required the Government of the United States to "transmit this Order to the Governor of the State of Arizona". The information required on the measures taken in implementation of this Order was given to the Court by a letter of 8 March 1999 from the Legal Counsellor of the United States Embassy at The Hague. According to this letter, on 3 March 1999 the State Department had transmitted to the Governor of Arizona a copy of the Court's Order. "In view of the extremely late hour of the receipt of the Court's Order", the letter of 8 March went on to say, "no further steps were feasible".
The United States authorities have thus limited themselves to the mere transmission of the text of the Order to the Governor of Arizona. This certainly met the requirement of the second of the two measures indicated. As to the first measure, the Court notes that it did not create an obligation of result, but that the United States was asked to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings". The Court agrees that due to the extremely late presentation of the request for provisional measures, there was certainly very little time for the United States authorities to act.
112. The Court observes, nevertheless, that the mere transmission of its Order to the Governor of Arizona without any comment, particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of the United States that orders of the International Court of Justice on provisional measures are non-binding, was certainly less than could have been done even in the short time available. The same is true of the United States Solicitor General's categorical statement in his brief letter to the United States Supreme Court that "an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief" (see paragraph 33 above). This statement went substantially further than the amicus brief referred to in a mere footnote in his letter, which was filed on behalf of the United States in earlier proceedings before the United States Supreme Court in the case of Angel Francisco Breard (see Breard v. Greene, United States Supreme Court, 14 April 1998, International Legal Materials, Vol. 37 (1988), p. 824; Memorial of Germany, Ann. 34). In that amicus brief, the same Solicitor General had declared less than a year earlier that "there is substantial disagreement among jurists as to whether an ICJ order indicating provisional measures is binding ... The better reasoned position is that such an order is not binding."
113. It is also noteworthy that the Governor of Arizona, to whom the Court's Order had been transmitted, decided not to give effect to it, even though the Arizona Clemency Board had recommended a stay of execution for Walter LaGrand.
114. Finally, the United States Supreme Court rejected a separate application by Germany for a stay of execution, "[g]iven the tardiness of the pleas and the jurisdictional barriers they implicate". Yet it would have been open to the Supreme Court, as one of its members urged, to grant a preliminary stay, which would have given it "time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved ..." (Federal Republic of Germany et al. v. United States et al., United States Supreme Court, 3 March 1999).
115. The review of the above steps taken by the authorities of the United States with regard to the Order of the International Court of Justice of 3 March 1999 indicates that the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court's Order. The Order did not require the United States to exercise powers it did not have; but it did impose the obligation to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings ...". The Court finds that the United States did not discharge this obligation.
Under these circumstances the Court concludes that the United States has not complied with the Order of 3 March 1999.
[p. D.O. Oda] 34. In my view, addressing the general question as to whether or not an order indicating provisional measures "is binding" or "has binding force" is an empty, unnecessary exercise. I wonder what the Court really wants to say in holding that an order indicating provisional measures is binding. Is the Court trying to raise the question of responsibility of the State which allegedly has not complied with the order? This question has not arisen in the past jurisprudence of this Court. It suffices that provisional measures "ought to be taken" or, in the French, "doivent être prises" (Statute, Art. 41). Whether an order indicating provisional measures has been complied with or not is decided by the Court in its judgment on the merits.
35. In paragraph 111 of the Judgment, the Court then considers the "the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999". After a circuitous analysis the Court concludes that "under these circumstances ... the United States has not complied with the Order of 3 March 1999" (Judgment, para. 115), simply because Walter LaGrand was executed.
Even if I were to accept that the issuance of the Order indicating provisional measures of 3 March 1999 was a valid exercise of the Court's jurisdiction, I believe that that Order was complied with by the United States, which took all measures at its disposal in an attempt to respect the terms. At any rate, the stay of an execution, in this case of Walter LaGrand, could not be - and, in fact, was not - mandated by the Court in its Order indicating provisional measures. I reiterate: it is extraordinary that the Court, in its Order of 3 March 1999, determined not the rights and duties of a State but the rights of an individual. In any case, the question as to whether or not the Order of 3 March 1999 indicating provisional measures was complied with should never have been raised.
[p. S.O. Koroma] 7. I also cannot concur entirely with the reasoning of the Court regarding its finding on Article 41 of the Statute. The real issue is whether the Order for Provisional Measures issued by the Court on 3 March 1999 was binding on the United States, and not the interpretation of Article 41 of the Statute which the Court decided to undertake. I do not think its jurisprudence on this matter was in doubt. Nor do I subscribe to the theory of the linguistic ambiguity of the said provision. In my view the meaning of the provision is clear and objective and there can be no fundamental misunderstanding as to its purpose and meaning. It is also part of the Statute of the Court. The object and purpose of an order for provisional measures is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision of the Court. It is for the Court to grant or reject a request for an order. It follows that, when an order is granted in accordance with the Statute, it is binding. Otherwise, there would be no purpose in making an order, or the purpose would be defeated. This is how I have understood the provision and this Judgment should be seen in that light and not as casting doubt, albeit unwittingly, on previous orders for provisional measures issued by this Court.