Questions of International Judicial Jurisdiction in the LaGrand Case

Leiden Journal of International Law

Volumn 15, Issue 1, 2002, Pages 105-130

  Orakhelashvili, Alexander ^a  

^a JESUS COLLEGE   (United Kingdom)

Author keywords

International Court of Justice; international judicial jurisdiction; LaGrand case; Vienna Convention on Consular Relations

Indexed keywords

EID: 85011477298     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000055     Document Type: Article

References (40)

1. Case concerning the Vienna Convention on Consular Relations (Germany v. United States of America), Decision of 27 June 2001 (hereinafter ‘Judgment'). Not yet published. References are made to the text available at the Court's website, http://www.icj-cij.org.
2. 1963 Vienna Convention on Consular Relations, 596 UNTS 261. The facts underlying this breach of the Vienna Convention have not been disputed during the proceedings before the Court. See Judgment, para. 15.
3. For the over-view of these proceedings see paras. 16-34 of the Judgment.
4. For instance, the Court ruled on the issues of judicial competence such as the abuse of proceedings, exhaustion of local remedies and the role of international tribunals in remedying national judicial and administrative decisions when they are thought to be in violation of international law. See Judgment, paras. 50-60.
5. H. Thirlway, The Law and Procedure of the International Court of Justice, 69 BYIL 1, at 21 (1998).
6. Id., at 6: When Jurisdiction is referred to, it must always be asked, ‘jurisdiction to do what?’ Jurisdiction or competence is not, in the sense in which those terms are used in relation to a dispute, a general property vested in the court or tribunal contemplated: it is the power, conferred by the consent of the parties, to make a determination on specified disputed issues which will be binding on the parties because that is what they have consented to.
7. H. Briggs, The Incidental Jurisdiction of the International Court of Justice as Compulsory Jurisdiction, in F.A.Frhr. v.d. Heydte, et al. (Eds.), Völkerrecht und Rechtliches Weltbild. Festschrift für Alfred Verdross 92-95 (1960). Reference is made here to the judicial powers such as compétence de la compétence, indication of provisional measures, admissibility of third-party intervention, interpretation of judgments, award of remedies etc.
8. As submitted by respondent: LaGrand Verbatim Record, CR 2000/28, Meron, at 39, available at http://www.icj-cij.org.
9. Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment of 12 December 1996, 1996 ICJ Rep. 803, at 810.
10. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment of 27 February 1998, 1998 ICJ Rep. 9, at 18.
11. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, 1984 ICJ Rep. 392, at 422 et seq.
12. Meron, Military and Paramilitary Activities in and against Nicaragua note 12, at 40-41; Verbatim Record, CR 2000/31, Meron, at 16.
13. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment of 11 July 1996, 1996 ICJ Rep. 595, at 616.
14. The question of the binding nature of provisional measures as such is dealt with in Section 3 below.
15. As illustrated by the approach of the European Court of Human Rights, Cruz Varas v. Sweden, Judgment of 20 March 1991, ECHR (Ser. A201) 4, at 37. Cf. Section 3, infra.
16. I. Brownlie, Remedies in the International Court of Justice, in V. Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice 557-558 (1996).
17. Case concerning the Factory at Chorzów, Judgment of 26 July 1927, 1927 PCIJ (Ser. A) No. 8, 4, at 23.
18. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at 142.
19. H. Lauterpacht, The Development of International Law by the International Court 246-248 (1958).
20. On this point, see Section 4 below.
21. G. Fitzmaurice, The Law and Procedure of the International Court of Justice 542 (1986).
22. H. Thirlway, Indication of Provisional Measures by the International Court of Justice, in R. Bernhardt (Ed.), Interim Measures Indicated by International Courts 28 (1994); Thirlway, The Law and Procedure of the International Court of Justice note 8, at 20-21; S. Oda, Provisional Measures, in Lowe & Fitzmaurice, The Law and Procedure of the International Court of Justice note 31, at 554-555 (1996).
23. Dissenting Opinion of Judge Oda, para. 30.
24. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 13 July 1954, 1954 ICJ Rep. 47, at 57.
25. The respondent submitted that the ‘should’ is meant “not to create binding obligations, but rather to state expectations or desires about the future behaviour,” Verbatim Record, CR 2000/29, Matheson, at 45. See the references to the Court's practice where more imperative language is used in Orders, id., at 46 et seq.
26. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order 13 September 1993, 1993 ICJ Rep. 325, at 350, para. 61.
27. J. Frowein & W. Peukert, EMRK-Kommentar 556 (1994).
28. Judgment, para. 119 et seq.
29. Section 2.3 above.
30. Section 2.3 above. note 59 and accompanying text.
31. The respondent has explicitly suggested that the actual dispute between the parties “has been resolved by the United States apology and appropriate assurances of non-repetition, making the case in that sense moot,” Verbatim Record, CR 2000/28, Thessin, at 10. The applicant did not consider these assurances sufficient, Simma, Section 2.3 above. note 59 and accompanying text. note 13, at 37.
32. Castillo Petruzzi et al. case, Judgment of 30 May 1999, para. 221 and operative para. 13, 7 International Human Rights Reports 690, at 744-746 (2000).
33. Loayza Tamayo v. Peru (Reparations), Judgment of 27 November 1998, para. 189 and operative para. 9, 116 ILR 388, at 439 and 442.
34. Suarez Rosero v. Ecuador (Reparations), Judgment of 20 January 1999, para. 76 and operative paras. 1 and 4, 118 ILR 92, at 113 and 119-120.
35. D. Harris, M. O'Boyle & C. Warbrick, The Law of the European Convention on Human Rights 684 (1995).
36. See, generally, Art. 15 of the European Convention.
37. J. Polakiewicz, Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte 147 (1993).
38. T. Meron, Human Rights and Humanitarian Norms as Customary Law 145 (1989).
39. Human Rights and Humanitarian Norms as Customary Law note 50 and accompanying text.
40. For instance, the power of the European Commission and European Court of Human Rights to sever incompatible reservations has been sometimes attributed to the fact that these organs operate within specific European context. However, the UN Human Rights Committee asserted a similar power in its General Comment No. 24, which has been opposed within the ILC. See, generally, Second Report on Reservations to Treaties by Pellet, A/CN.4/477/ Add.1, and the Report of the ILC in 1996 YILC, Vol. 50 II (Part Two). A detailed examination of this issue is outside the focus of the present article.