## Facts

- Ángel Francisco Breard, a Paraguayan national, was arrested in Virginia in 1992, convicted of murder, and sentenced to death.
- Paraguay alleged that U.S. authorities failed to comply with Article 36(1)(b) of the Vienna Convention on Consular Relations (VCCR) by not informing Breard, at the time of detention, of his right to request consular notification and to communicate with Paraguayan consular officials.
- Paraguay also alleged that its consular officers were not timely informed of Breard’s detention and therefore could not provide assistance at an early stage.
- An execution date was set for 14 April 1998.
- On 3 April 1998, Paraguay filed an Application instituting proceedings against the United States before the International Court of Justice (ICJ), asserting a dispute concerning the interpretation and application of the VCCR.
- Paraguay invoked the ICJ’s jurisdiction under Article 36(1) of the ICJ Statute and Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the VCCR.
- On the same day, Paraguay requested provisional measures to prevent Breard’s execution pending the ICJ’s final decision, arguing that execution would cause irreparable harm to the rights it claimed under the VCCR and would defeat effective relief.
- The ICJ held oral proceedings on the request for provisional measures on 7 April 1998.
- On 9 April 1998, the ICJ issued its Order indicating provisional measures (reported at 1998 I.C.J. 248).
- Breard was executed on 14 April 1998 despite the ICJ’s Order.
- Paraguay later filed a Memorial (9 October 1998) but, by letter of 2 November 1998, notified the Court that it wished to discontinue the case with prejudice; the United States agreed (3 November 1998).
- On 10 November 1998, the ICJ recorded the discontinuance and removed the case from its list (1998 I.C.J. 426), without reaching the merits.

## Issues

1. Whether the ICJ had prima facie jurisdiction, for purposes of provisional measures, over Paraguay’s VCCR Article 36 dispute under Article I of the Optional Protocol.
2. Whether the scheduled execution created urgency and a risk of irreparable prejudice to Paraguay’s claimed treaty rights sufficient to justify provisional measures under Article 41 of the ICJ Statute.
3. Whether ordering the United States to prevent the execution was necessary to preserve the rights at issue and the Court’s ability to give effective judgment.

## Decision

- The ICJ found that, at this stage, there was a sufficient prima facie basis for jurisdiction under the Optional Protocol to the VCCR because Paraguay alleged violations of the Convention and both States were parties to the Protocol.
- The ICJ unanimously indicated provisional measures ordering that the United States take all measures at its disposal to ensure that Breard was not executed pending the Court’s final decision.
- The Order also required the United States to inform the Court of the measures taken to give effect to the provisional measures.
- The Court indicated the measures because the execution was imminent and would create irreversible harm to the rights claimed by Paraguay and to the possibility of effective relief.
- The case ended without a merits judgment after Paraguay discontinued the proceedings with prejudice and the ICJ removed the case from its list.

## Legal Principles

- At the provisional measures stage, the ICJ does not finally decide jurisdiction or the merits; it determines whether jurisdiction appears, on a prima facie basis, to exist.
- Under Article 41 of the ICJ Statute, provisional measures may be indicated to preserve the rights in dispute where there is urgency and a real risk of irreparable prejudice before final judgment.
- A scheduled execution can satisfy the urgency and irreparable harm requirements because, once carried out, it permanently defeats the possibility of full judicial relief and may render later judgment ineffective.
- Rights linked to consular notification and access under VCCR Article 36(1)(b) may be treated as treaty rights of the sending State in an inter-State dispute, capable of protection through interim measures.
- Provisional measures may serve both to protect the parties’ claimed rights and to prevent the Court’s eventual judgment from being deprived of practical effect.

## Conclusion

In its 9 April 1998 Order on provisional measures in *Vienna Convention on Consular Relations (Paraguay v. United States of America)*, the ICJ held that it had prima facie jurisdiction under the VCCR Optional Protocol and unanimously ordered the United States to take all measures at its disposal to ensure that Ángel Francisco Breard was not executed pending a final decision; the execution nevertheless occurred, and Paraguay later discontinued the case with prejudice, leading the Court to remove it from its list without deciding the merits.


Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, 1998 I.C.J. 248 (Apr. 9).