ABSTRACT
On 3 April 1998, Paraguay instituted proceedings and requested the indication of provisional measures against the US before the International Court of Justice (hereinafter ‘the ICJ’ or ‘the Court’).1 The dispute related to alleged breaches of the Vienna Convention on Consular Relations of 19632
(hereinafter ‘the Vienna Convention’) and concerned a Paraguayan national, Mr Angel Francisco Breard, who was sentenced to the death without being informed of his rights under Article 36, paragraph 1 lit.b), of the Vienna Convention.3 Two more prominent cases involving very similar matters, LaGrand (Germany v. United States)4 and Avena (Mexico v. United States),5
were still to come before the Court. Those two cases proceeded to the merits and therefore ‘superseded’ the Breard precedent. Nevertheless, this latter case should not be forgotten for it opened the path for important legal findings in the LaGrand and Avena cases. When determining the influence of the short-lived Breard case, two factors
deserve particular attention: the debate surrounding the binding force of provisional measures ordered by the ICJ and the form of reparation requested by Paraguay, namely guarantees of non-repetition. These two issues were present in the ‘forgotten’ case of Mr Breard, but were only addressed by the Court in the cases LaGrand and Avena a few years later for the simple reason
that the Breard case did not proceed to the merits. The case was removed from the Court’s list just one month after the filing of Paraguay’s memorial, which occurred seven months after the execution of Mr Breard. Paraguay proceeded to file an application before the ICJ on 3 April 1998,
only days before the execution of Mr Breard, scheduled to take place on 14 April 1998. The Court held hearings on 7 April 1998 and, unanimously, adopted an order on 9 April 1998, requesting the US to take all measures to ensure that Mr Breard was not executed pending the final decision in the proceedings.6 In reference to the order, the Secretary of State, Ms Madeleine Albright, wrote a letter to the Governor of Virginia on 13 April 1998 requesting him to exercise his powers as governor and stay Mr Breard’s execution.7 On the morning of 14 April 1998, the day scheduled for his execution, the US Supreme Court denied the last application for stay of execution on the basis of the ‘procedural default’ rule. This rule essentially bars any claim brought at a late stage of criminal proceedings from being examined unless established that prejudice was caused to the defendant.8
