Claiming Human Rights - Prof.

Georg Ress, Hans Kippenberg

LaGrand Case State Rights vs. Individual Rights
By: Kristi Gadeshi
The International Court of Justice is the main judicial organ of the United Nations. It is
formed of 15 judges who are elected and vote independently on a case. The main reason
for the creation of this court was to solve disputes between states, but also to give
advisory opinions. The International Court of Justice, throughout its history since its
creation in 1945, has seen and reviewed many cases involving countries from all over the
world. ICJs decisions have caused unrest, have achieved peace and have regulated many
conflicts that could have resulted in more severe consequences. But throughout this
history, none of the cases has been so controversial and revolutionary at the same time as
the famous LaGrand case (Germany vs. USA) in 1999. It would be the first time that
individual rights would be claimed in this court. Due to the unique circumstances of this
case, it was a very tricky decision and had a very universal meaning.
Walter and Karl LaGrand were two German nationals living in the United States, who
were arrested and sentenced to death by an US court for murder and robbery. Since they
were German nationals, because they were born in Germany, under the Vienna
Convention on Consular Relations, the United States was obliged to inform them about
their right to have a consular assistance, something which United States (i.e. the Arizona
authorities) failed to do. In these circumstances, the LaGrand brothers informed the
German representatives in the United States about their right to have a consular
assistance. German authorities were very sensitive about this case, and immediately
asked for the executions not to be done. However, Karl LaGrand was executed on

February 24, 1999. Due to this fact, Germany applied to the International Court of Justice
against USA regarding Walter LaGrand, requesting a provisional court order to prevent
USA from executing Walter LaGrand on the due date. United States failed to obey, and
Walter LaGrand was executed on March 3, 1999.
From this moment, Germany applied once again at the ICJ, against the USA for not
obeying the provisional order of the ICJ, and also for violating Article 36 of the Vienna
Convention. Article 36 of the Vienna Convention states that : Foreign nationals who are
arrested or detained be given notice "without delay" of their right to have their embassy
or consulate notified of that arrest. United States on the other way, pretended that the
provisional order given by the ICJ was not legally binding, and that the Vienna
Convention does not cover individual rights bur rather only states rights. In the end, ICJ,
with an historic decision by 14 votes to 1, ruled in favour of Germany for both
applications against the United States. In this way, ICJ interpreted that it had the authority
to give such a decision, and that for the first time, individual rights are saved from the
states rights. This was considered as one of the most revolutionary decisions. It also
created an example for future similar cases.
This is the main reason why this case was so controversial and caused debate all over the
world. With this decision, it made a clear interpretation that the Vienna Convention on
Consular Relation is not only designed for the states, but also for individuals whose rights
fall under this convention. Also, it interpreted that its provisional measures are legally
binding, although they do not have a specific time of how long they are binding for.
This decision clearly indicated that under international conventions or treaties, states
rights are not always above individual rights, even though these conventions are signed

by states in order to regulate the international relationships. It is not a surprise that this
interpretation could lead to a withdrawal of several states from the international
conventions, simply because their rights sometimes cannot surpass the rights of the
individuals. This clearly sets a question mark to these conventions, and also caused a lot
of debate around the world, where different analysts and judges gave their interpretation
to this matter. Nevertheless, looking at the ratio between the judges who voted pro and
against Germany i.e. 14:1, it is quite visible that the decision was almost unanimous.
During the Claiming Human Rights course, I was allocated to make a presentation
regarding this case and giving a critical approach to it. As I did my research on this case, I
had mixed emotions and opinions throughout. I could not decide who was right and who
was wrong. Or were they both right or both wrong? Because human rights and in this
case putting it in a parallel comparative plane with states rights is a very complex issue.
States rights is a term which is widely used, its old as the states themselves and has been
used frequently for all sorts of political or religious purposes. In the old times, states had
a supreme power over individuals, forcing them to do un-human actions, persecuting
them, abuse them. These rights and some of the conventions are widely signed and
accepted long before the term of individual right became popular in the public opinion
in an effort to balance power. So with this reasoning, I was tempted throughout my
research to value and respect the importance and the impact of the word State as an
unquestionable power in our so-called democratic world, a world which we are all trying
to make it better and better. But later on I realised that everything else in this world, there
should be a counter-part, something which balances the power and does not leave space
for abuses and misuses. Because sadly, the term States rights has been widely used by

racist and fascist elements to dictate their power and influence. Individual rights, human
rights, is the response of normal people, who give life to these states, against the
ironically misused States rights against them. But in my opinion, the most effective
question to ask is not States rights vs. Individual rights. The real question should be, how
can we improve them in order to make our world a better place to live in. Because frankly
speaking, these two together can really create a balance in our lives and can lead the
human civilization to a bright future.
Considering the case mentioned above, the LaGrand case, as imagined I was tempted to
believe at the beginning that the United States should have been the clear favourites of
winning this case, despite the Germanys approach. After all, the LaGrand brothers had
caused a damage to that state, and according to their law they should get the deserved
punishment. But later I realised that this way of thinking was very short-minded and that
it was not entirely legally and morally based. Facts are facts, and the fact that Article 36
of the Vienna Convention states that : The consulate must be informed if a national is
arrested is clearly understandable and cannot create misinterpretations. Even though the
Vienna Convention was created from the states, for the states, deliberately or not it also
gives protection to some human rights. And the nearly unanimous voting from the judges
verifies this fact.
But most of all, in my opinion, the verdict of the ICJ gave a very strong message to the
world. I would consider this judgement in itself as a symbol of the on going fight for
individual rights and individual freedom. Maybe it did not save the life of the LaGrand
brothers, but certainly saved and will save many more lives of people who suffer, directly
or not from the unquestionable power of the states. And by realising all this, I had a

good feeling in myself. I understood that after all, its not only about this case in itself,
its about a much bigger case, its about the democratic freedom that people who live on
our planet should have.
I would also like to give an opinion about the second ruling of the court, which stated that
provisional measures ordered by the ICJ were legally binding. And I have to say I totally
agree with this. The ICJ was formed by the UN, and for this reason every decision that
this court takes should and can be binding in every country which is part of the UN.
Especially in this specific case, where the death penalty was involved, a penalty which is
fatal and irreversible, United States should have certainly done more to prevent the
execution of Walter LaGrand. Furthermore, there is no legal base to verify USA claims
that the provisional measures are not binding. I had this opinion since the beginning of
my research, and I must say I never had a doubt throughout. I have not put so much focus
on this decision, as I believe it is very clear and does not make space for many
discussions, as much as the other one.
This case has been and will always be a very revolutionary case in the history of world
juridical system. Not just because of the outcome of the specific matter and the
obligations of the United States against Germany, but because of the symbol that
transmitted throughout our bizarre world. I think each and everyone of us wants to be part
of a world where everyone is treated equally, respected, and thanked for what it does. But
can we build this world, if there is a power out there which dictates us? I dont believe
so.
As mentioned, I want to generalize the case I had in front, because I believe this question
Human rights vs State rights deserves more attention and deserves to be treated more

globally. Because in the end, had the ruling of the ICJ been issued before the execution of
LaGrand brothers, would they escape from the death penalty? There is no definite
answer, but I would guess no. So instead of just focusing narrowly on this case alone, its
better sometimes to reflect on the meaning of all this.
In the end, I would like to conclude this with a famous quote of the ex-president of the
United States Jimmy Carter, who served as a president from January 1977 to January
1981. He is well known for his involvement in many human rights movements all over
the world, and is also known for the Nobel Peace Prize he won in 2002. His quote states:
America did not invent human rights. In a very real sense human rights invented
America. But I would rather change it slightly: The world did not invent human rights.
In a very real sense human rights invented the world. And I truly believe in this.

References:
Wikipedia article on LaGrand Case
Wikipedia article on Jimmy Carter
http://www.nationofchange.org/are-states-rights-more-important-human-rights1335533471
http://utopianstates.org/?p=674