International Norms

Consular Rights of Foreign Nationals: International Norms

prepared by: Mark Warren, Human Rights Research

Updated: October 2009

A primary function of the consuls of all nations is to render assistance to any of their nationals who are in distress within their consular jurisdiction. Consular access and assistance become particularly indispensable when foreign nationals face prosecution, sentencing and incarceration under the local legal system.

The Vienna Convention on Consular Relations (VCCR) enshrines the time-honored right of consuls to communicate with and assist their detained nationals. Article 36 of the Vienna Convention requires the local authorities to promptly inform detained foreigners of their right to consular communication. At the request of the detainee, the authorities must notify the consulate of the arrest without delay and permit consular access to the detained national. Local laws must give full effect to these rights.

Article 36 is a legally binding expression of an international recognition that foreign citizens face unique disadvantages when confronted with prosecution and imprisonment under the legal system of another nation. Its provisions ensure that all arrested foreigners have the means at their disposal to prepare an adequate defense and to receive the same treatment before the law as domestic citizens. Consular communication and visits also ensure that imprisoned foreigners are not subject to discriminatory or abusive treatment while in custody.

The rights of consular communication and assistance thus serve to protect the fundamental human rights of detained foreign nationals, including equal treatment before the law, a fair trial and the right not to be subjected to cruel, inhuman or degrading treatment. These consular rights of individual detainees have an impressive pedigree under international law, including United Nations human rights instruments, regional declarations and international court rulings.

United Nations Instruments Back to top

A. Multilateral Treaties

Vienna Convention on Consular Relations, 596 UNTS 261, Apr. 24 1963

Article 36: Communication and Contact With Nationals of the Sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c ) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990).

http://www1.umn.edu/humanrts/instree/n8icprmw.htm

7. When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner:

(a) The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor;

(b) The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right to receive communications sent by the said authorities without delay;

(c) The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.
http://www1.umn.edu/humanrts/instree/h2catoc.htm

Article 6

3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

International Convention for the Protection of All Persons from Enforced Disappearance

2006, GA Res. 61/177, 20 December 2006, A/RES/61/177

http://www1.umn.edu/humanrts/instree/disappearance.html

Article 17

1. No one shall be held in secret detention.

2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:

(a) Establish the conditions under which orders of deprivation of liberty may be given;

(b) Indicate those authorities authorized to order the deprivation of liberty;

(c) Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty;

(d) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law;

International Convention for the Suppression of Terrorist Bombings

G.A. Res. 164, U.N. GAOR, 52nd Sess., Supp. No. 49, at 389, U.N. Doc. A/52/49 (1998), entered into force May 23, 2001

http://www1.umn.edu/humanrts/instree/terroristbombing.html

Article 7

2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person's presence for the purpose of prosecution or extradition.

3. Any person regarding whom the measures referred to in paragraph 2 of the present article are being taken shall be entitled to:

a. Communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person's rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;
b. Be visited by a representative of that State;
c. Be informed of that person's rights under subparagraphs (a) and (b).

4. The rights referred to in paragraph 3 of the present article shall be exercised in conformity with the laws and regulations of the State in the territory of which the offender or alleged offender is present, subject to the provision that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents

1035 U.N.T.S. 167, 13 I.L.M. 41, entered into force Feb. 20, 1977

http://www1.umn.edu/humanrts/instree/inprotectedpersons.html

Article 6
2. Any person regarding whom the measures referred to in paragraph 1 of this article are being taken [prosecution or extradition] shall be entitled:

a. to communicate without delay with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights or, if he is a stateless person, which he requests and which is willing to protect his rights, and
b. to be visited by a representative of that State.

Protocol against the Smuggling of Migrants by Land, Sea and Air
supplementing the United Nations Convention against Transnational Organized Crime, G.A. res. 55/25. 55 U.N. GAOR Supp. (No. 49) at 65, U.N. Doc. A/45/49 (Vol. I) (2001)

http://www1.umn.edu/humanrts/instree/smuggling.html

Article 16

5. In the case of the detention of a person who has been the object of conduct set forth in article 6 of this Protocol, each State Party shall comply with its obligations under the Vienna Convention on Consular Relations, where applicable, including that of informing the person concerned without delay about the provisions concerning notification to and communication with consular officers.

Convention on the Safety of United Nations and Associated Personnel
G.A. res. 49/59, 49 U.N. GAOR Supp. (No. 49) at 299, U.N. Doc. A/49/49 (1994).

http://www1.umn.edu/humanrts/resolutions/49/59GA1994.html

Article 17

Fair treatment

1. Any person regarding whom investigations or proceedings are being carried out in connection with any of the crimes set out in article 9 shall be guaranteed fair treatment, a fair trial and full protection of his or her rights at all stages of the investigations or proceedings.

2. Any alleged offender shall be entitled:

(a) To communicate without delay with the nearest appropriate representative of the State or States of which such person is a national or which is otherwise entitled to protect that person's rights or, if such person is a stateless person, of the State which, at that person's request, is willing to protect that person's rights; and

(b) To be visited by a representative of that State or those States.

International Convention on the Suppression of Acts of Nuclear Terrorism
UN General Assembly Resolution 59/290, 13 Apr. 2005 (entered into force, 7 July, 2007)

http://www.un.org/terrorism/instruments.shtml

Article 10

3. Any person regarding whom the measures referred to in paragraph 2 of the present article are being taken shall be entitled:

(a) To communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person’s rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;

(b) To be visited by a representative of that State;

and (b).

Other Similar Examples:

1979 International Convention against the taking of hostages, arts. 6(3) and 6(4);

1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, arts. 7(3) and 7(4);

1999 International Convention for the Suppression of the Financing of Terrorism, arts. 9(3) and 9(4);

Draft Comprehensive Convention on International Terrorism, arts. 10(3) and 10(4).

B. UN Rules, Declarations and other instruments

Standard Minimum Rules for the Treatment of Prisoners,

adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611.

http://www1.umn.edu/humanrts/instree/g1smr.htm

Contact with the outside world

38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong. (2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).

http://www1.umn.edu/humanrts/instree/g3bpppdi.htm

Principle 16

2. If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization.

Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live,
G.A. res. 40/144, annex, 40 U.N. GAOR Supp. (No. 53) at 252, U.N. Doc. A/40/53 (1985).

http://www1.umn.edu/humanrts/instree/w4dhri.htm

Article 10

Any alien shall be free at any time to communicate with the consulate or diplomatic mission of the State of which he or she is a national or, in the absence thereof, with the consulate or diplomatic mission of any other State entrusted with the protection of the interests of the State of which he or she is a national in the State where he or she resides.

Rules of Detention (Yugoslavia Tribunal)

http://www1.umn.edu/humanrts/icty/detention-rules.html

Rules covering the detention of persons awaiting trial or appeal before the Tribunal or otherwise detained on the authority of the Tribunal, U.N. Doc. IT/38/Rev.4 (1995).

12. As soon as practicable after admission, each detainee shall be provided with information concerning legal, diplomatic and consular representation available to him. The detainee shall be given the opportunity at this time to notify, within reason, his family, his counsel, the appropriate diplomatic or consular representative and, at the discretion of the Commanding Officer, any other person, of his whereabouts, at the expense of the Tribunal. The detainee shall be asked at this time to name a person or authority to be notified of special events affecting him.

65. Detainees shall be allowed to communicate with and receive visits from the diplomatic and consular representative accredited to the Host State of the State to which they belong or, in the case of detainees who are without diplomatic or consular representation in the Host State and refugees or stateless persons, with the diplomatic representative accredited to the Host State of the State which takes charge of their interests or of a national or international authority whose task it is to serve the interests of such persons.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty,
G.A. res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990).

http://www1.umn.edu/humanrts/instree/j1unrjdl.htm

I. Notification of illness, injury and death

56. The family or guardian of a juvenile and any other person designated by the juvenile have the right to be informed of the state of health of the juvenile on request and in the event of any important changes in the health of the juvenile. The director of the detention facility should notify immediately the family or guardian of the juvenile concerned, or other designated person, in case of death, illness requiring transfer of the juvenile to an outside medical facility, or a condition requiring clinical care within the detention facility for more than 48 hours. Notification should also be given to the consular authorities of the State of which a foreign juvenile is a citizen.

UN General Assembly

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY
[on the report of the Third Committee (A/54/605/Add.2)]

http://www.un.org/Depts/dhl/resguide/r54all2.htm

A/RES/54/166 24 February 2000

54/166. Protection of migrants

The General Assembly,

Taking note of the decisions of the relevant international juridical bodies on questions relating to migrants, particularly advisory opinion OC-16/99, issued by the Inter-American Court of Human Rights on 1 October 1999, regarding the right to information about consular assistance within the framework of due process guarantees,

4. Reiterates the need for all States to protect fully the universally recognized human rights of migrants, especially women and children, regardless of their legal status, and to provide humane treatment, particularly with regard to assistance and protection, including those under the Vienna Convention on Consular Relations, regarding the right to receive consular assistance from the country of origin;

UN Commission on Human Rights

E/CN.4/RES/2000/65 27 April 2000

http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2000.65.En?Opendocument

The question of the death penalty

The Commission on Human Rights,

3. Urges all States that still maintain the death penalty:

(d) To observe the Safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under the Vienna Convention on Consular Relations;

-------------------

UN Commission on Human Rights

Res. 2002/62.
Human rights of migrants

The Commission on Human Rights,

Taking note of the judgment of the International Court of Justice of 27 June 2001 and of the advisory opinion OC 16/99 issued by the Inter American Court of Human Rights of 1 October 1999 on the right to information on consular assistance in the framework of the guarantees of due process of law, in the case of foreign nationals detained by the authorities of a receiving State,

6. Reaffirms emphatically the duty of States parties to ensure full respect for and observance of the Vienna Convention on Consular Relations, particularly with regard to the right of foreign nationals, regardless of their immigration status, to communicate with a consular official of their own State in the case of detention, and the obligation of the State in whose territory the detention occurs to inform the foreign national of that right;

The UN Special Rapporteur on extrajudicial, summary, or arbitrary executions has pointed out that "not informing the defendant of the right to contact his/her consulate for assistance may curtail the right to an adequate defence, as provided for by the International Covenant on Civil and Political Rights."

Report to the UN Commission on Human Rights, (document E/CN.4/1998/68/Add.3), Findings of the Special Rapporteur, 117-121.

IMO/ILO Guidelines on fair treatment of seafarers in the event of a maritime accident (2006)

http://www.itfglobal.org/files/seealsodocs/6547/IMO%20ILO%20Guidelines.pdf

(These Guidelines require that seafarers should be treated fairly by investigating authorities in the event that they are detained following an accident involving their ship.)

9 The port or coastal State should:

.9 ensure that the obligations of the Vienna Convention on Consular Relations, including those relating to access, are promptly fulfilled and that the State(s) of the nationality of all seafarers concerned are notified of the status of such seafarers as required, and also allow access to the seafarers by consular officers of the flag State;

.10 ensure that all seafarers detained are provided with the means to communicate privately with all of the following parties:

- the Embassy or Consulate of the flag State and of their country of residence

or nationality; and

- legal representatives;

10 The flag State should:

.10 take steps to ensure that its consular officers are permitted access to the involved seafarers, irrespective of their nationality;

.11 take all necessary measures to ensure the fair treatment of seafarers who were employed or engaged on a vessel flying its flag. This may ultimately include utilizing international dispute resolution mechanisms, which can secure the prompt release of vessels and crews...

11 The seafarer State should:

.5 take steps to ensure that its consular officers are permitted access to the involved seafarers;

.6 take steps to provide support and assistance, to facilitate the fair treatment of nationals of the seafarer State and the expeditious handling of the investigation;

Regional Treaties and Declarations Back to top

1999 OAU Convention on the Prevention and Combating of Terrorism

Article 7

2. Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its national law so as to ensure that person’s presence for the purpose of prosecution.

3. Any person against whom the measures referred to in paragraph 2 are being taken shall be entitled to:

(a) communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled, to protect that person’s rights or, if that person is a stateless person, the State in whose territory that person habitually resides;

(b) be visited by a representative of that State;

(d) be informed of his or her rights under sub-paragraphs (a), (b) and
(c).

4. The rights referred to in paragraph 3 shall be exercised in conformity with the national law of the State in whose territory the offender or alleged offender is present; subject to the provision that the said laws must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

Council of Europe Convention on the Prevention of Terrorism
CETS No.: 196

Article 15 – Duty to investigate

2 Upon being satisfied that the circumstances so warrant, the Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that person’s presence for the purpose of prosecution or extradition.

3 Any person in respect of whom the measures referred to in paragraph 2 are being taken shall be entitled to:

a) communicate without delay with the nearest appropriate representative of the State of which that person is a national or which is otherwise entitled to protect that person’s rights or, if that person is a stateless person, the State in the territory of which that person habitually resides;
b) be visited by a representative of that State;
c) be informed of that person’s rights under subparagraphs a. and b.

4 The rights referred to in paragraph 3 shall be exercised in conformity with the laws and regulations of the Party in the territory of which the offender or alleged offender is present, subject to the provision that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under paragraph 3 are intended.

5 The provisions of paragraphs 3 and 4 shall be without prejudice to the right of any Party having a claim of jurisdiction in accordance with Article 14, paragraphs 1.c and 2.d to invite the International Committee of the Red Cross to communicate with and visit the alleged offender.

Guidelines to EU Policy Towards Third Countries on the Death Penalty,
General Affairs Council of the European Union, Brussels, 3 June 1998, Part III (v).

http://www.eurunion.org/legislat/DeathPenalty/Guidelines.htm

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met:

(v) Capital punishment must only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with, a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, and where appropriate, the right to contact a consular representative.

Organization of American States General Assembly

OEA/Ser.P AG/RES. 1717 (XXX-O/00) 5 June 2000

THE HUMAN RIGHTS OF ALL MIGRANT WORKERS AND THEIR FAMILIES
(Resolution adopted at the first plenary session, held on June 5, 2000)

http://www.oas.org/juridico/english/agres_1717_xxxo00.htm

THE GENERAL ASSEMBLY,
CONSIDERING:

Advisory Opinion OC-16, issued by the Inter-American Court of Human Rights, on the right to information on consular assistance, in the context of due judicial process, in cases of foreign nationals detained by authorities of a receiving state;

RESOLVES:

4. To reaffirm, emphatically, the duty of states to ensure full respect and observance of the 1963 Vienna Convention on Consular Relations, particularly with regard to the right of foreign nationals, regardless of their immigration status, to communicate with a consular official of their own state in case of detention and the obligation of the state in whose territory the detention occurs to inform the foreign national of that right.

-----

http://www.oas.org/consejo/GENERAL%20ASSEMBLY/Resoluciones-Declaraciones.asp

AG/RES. 2502 (XXXIX-O/09)

THE HUMAN RIGHTS OF ALL MIGRANT WORKERS AND OF THEIR FAMILIES

(Adopted at the fourth plenary session, held on June 4, 2009)

THE GENERAL ASSEMBLY,

REAFFIRMING that the principles and standards enshrined in the American Declaration of the Rights and Duties of Man and in the American Convention on Human Rights take on special relevance with regard to the protection of the human rights of migrant workers and their families;

TAKING INTO ACCOUNT:

Advisory Opinions OC-16/99, “The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law,” and OC-18/03, “Juridical Condition and Rights of the Undocumented Migrants,” issued by the Inter-American Court of Human Rights on October 1, 1999, and September 17, 2003, respectively;

The judgment of the International Court of Justice of March 31, 2004, in the Case concerning Avena and Other Mexican Nationals; as well as its decision of January 19, 2009, reaffirming the obligations contained in the Avena judgment; and

RESOLVES:

10. To reaffirm emphatically the duty of the states parties to the 1963 Vienna Convention on Consular Relations to fulfill their obligations under the Convention, including the obligation of the States Parties to inform foreign nationals detained within their territory of their right to communicate with their consular officers; and in that regard, to call to the attention of the states Advisory Opinion OC-16/99, issued by the Inter-American Court of Human Rights, and the ruling of the International Court of Justice of March 31, 2004, in the Case concerning Avena and Other Mexican Nationals, regarding the obligation of the states to comply with Article 36 of the Vienna Convention.

BRIEF OF AMICI CURIAE THE EUROPEAN UNION AND MEMBERS OF THE INTERNATIONAL COMMUNITY
IN SUPPORT OF PETITIONER, Medellín v. Texas (June 26, 2007)

STATEMENT OF INTEREST

THE COUNCIL OF EUROPE

The Council of Europe, an international organization composed of 47 European states committed to the rule of law and respect for human rights, associates itself with the amicus curiae brief submitted by the European Union in support of Mr. Jose Medellin’s appeal before the United States Supreme Court.

It is of the opinion that the right of detained foreign nationals to be informed, without delay, of the right to consular access, as set out in Article 36 of the Vienna Convention on Consular Relations, is an individual right and one which is also protected under customary international law. If a foreign national is convicted without being informed of this right, that individual must be allowed to apply to a court to challenge the conviction and the sentence, in reliance on Article 36, paragraph 1. Courts must conduct such a review even if their procedural rules would otherwise preclude review.

Furthermore, it is of the opinion that respect for judgments of the International Court of Justice by states that are party to litigation is a basic requirement of the rule of law at the international level, as expressed in Article 94 of the United Nations Charter.

The Lexington Principles on the Rights of Detainees (Draft Principles, Sept. 25, 2008).

http://law.wlu.edu/lexingtonprinciples/page.asp?pageid=769

34. Principle 34 – Right to Communicate with Diplomatic or Consular Representatives

All persons deprived of their liberty by the government of a foreign State should be allowed reasonable opportunities to communicate with the diplomatic or consular representatives of their home State as soon as practicable after the deprivation and periodically throughout the period of detention as needed to ensure they are afforded the full benefits of the protections guaranteed to foreign nationals under international law.

All persons who are refugees, stateless persons, or nationals of States without diplomatic or consular representation in the detaining State should be allowed reasonable opportunities to communicate with the diplomatic and consular representatives of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.

-------

Ottawa Principles on Anti-terrorism and Human Rights, 8 February 2007

http://www.unhcr.org/refworld/docid/470e0e642.html

Principle 6.1: Consular protection

6.1.1 A foreign state must:

(a) advise foreign persons, upon being imprisoned, placed in custody or detained, of their right to be in contact with the consular authorities of the state of nationality. Should the person request such contact then the foreign state shall notify, without delay, the consular post of the state of nationality;

(b) make arrangements for initial and ongoing contact between the person imprisoned, placed in custody or detained and the consular officials of the state of nationality;

(c) ensure that all communications between the consular authorities of the state of nationality and the person imprisoned, in custody or detained are confidential and conducted in private. Officials of the foreign state will not attend meetings between the consular authorities of the state of nationality and the person imprisoned, in custody or detained unless invited to do so by the consular authorities of the state of nationality;

International Court Rulings Back to top

INTER-AMERICAN COURT OF HUMAN RIGHTS

ADVISORY OPINION OC-16/99 OF OCTOBER 1, 1999
REQUESTED BY THE UNITED MEXICAN STATES

http://www1.umn.edu/humanrts/iachr/A/OC-16ingles-sinfirmas.html

The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, October 1, 1999, Inter-Am. Ct. H.R. (Ser A) No. 16 (1999)

141. For the above reasons,

THE COURT DECIDES
unanimously

That it is competent to render the present Advisory Opinion.

IT IS OF THE OPINION

Unanimously

1. That Article 36 of the Vienna Convention on Consular Relations confers rights upon detained foreign nationals, among them the right to information on consular assistance, and that said rights carry with them correlative obligations for the host State.

Unanimously,

2. That Article 36 of the Vienna Convention on Consular Relations concerns the protection of the rights of a national of the sending State and is part of the body of international human rights law.

Unanimously,

3. That the expression "without delay" in Article 36(1)(b) of the Vienna Convention on Consular Relations means that the State must comply with its duty to inform the detainee of the rights that article confers upon him, at the time of his arrest or at least before he makes his first statement before the authorities.

Unanimously,

4. That the enforceability of the rights that Article 36 of the Vienna Convention on Consular Relations confers upon the individual is not subject to the protests of the sending State.

Unanimously,

5. That articles 2, 6, 14 and 50 of the International Covenant on Civil and Political Rights concernthe protection of human rights in the American States.

Unanimously,

6. That the individual's right to information established in Article 36(1)(b) of the Vienna Convention on Consular Relations allows the right to due process of law recognized in Article 14 of the International Covenant on Civil and Political Rights to have practical effects in concrete cases; Article 14 establishes minimum guarantees that can be amplified in the light of other international instruments such as the Vienna Convention on Consular Relations, which expand the scope of the protection afforded to the accused.

By six votes to one,

7. That failure to observe a detained foreign national's right to information, recognized in Article 36(1)(b) of the Vienna Convention on Consular Relations, is prejudicial to due process of law and, in such circumstances, imposition of the death penalty is a violation of the right not to be deprived of life "arbitrarily", as stipulated in the relevant provisions of the human rights treaties (v.g.American Convention on Human Rights, Article 4; International Covenant on Civil and Political Rights, Article 6), with the juridical consequences that a violation of this nature carries, in other words, those pertaining to the State's international responsibility and the duty to make reparation.

Judge Jackman dissenting.

Unanimously,

8. That the international provisions that concern the protection of human rights in the American States, including the right recognized in Article 36(1)(b) of the Vienna Convention on Consular Relations, must be respected by the American States Party to the respective conventions, regardless of whether theirs is a federal or unitary structure.

INTERNATIONAL COURT OF JUSTICE

http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm

LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104 (Judgment of 27 June 2001

128. For these reasons,

THE COURT,

(3) By fourteen votes to one,

Finds that, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America breached its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1;

(4) By fourteen votes to one,

Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph (3) above had been established, the United States of America breached its obligation to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 2, of the Convention;

(5) By thirteen votes to two,

Finds that, 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 in the case, the United States of America breached the obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999;

(6) Unanimously,

Takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Convention; and finds that this commitment must be regarded as meeting the Federal Republic of Germany's request for a general assurance of non-repetition;

(7) By fourteen votes to one,

Finds that should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties, without their rights underArticle 36, paragraph 1 (b), of the Convention having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.

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Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Judgment of 31 March 2004)

153. For these reasons,

THE COURT,

(4) By fourteen votes to one,

Finds that, by not informing, without delay upon their detention, the 51 Mexican nationals referred to in paragraph 106 (1) above of their rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations of 24 April 1963, the United States of America breached the obligations incumbent upon it under that subparagraph;

(5) By fourteen votes to one,

Finds that, by not notifying the appropriate Mexican consular post without delay of the detention of the 49 Mexican nationals referred to in paragraph 106 (2) above and thereby depriving the United Mexican States of the right, in a timely fashion, to render the assistance provided for by the Vienna Convention to the individuals concerned, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 1 (b);

(6) By fourteen votes to one,

Finds that, in relation to the 49 Mexican nationals referred to in paragraph 106 (3) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to communicate with and have access to those nationals and to visit them in detention, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Convention;

(7) By fourteen votes to one,

Finds that, in relation to the 34 Mexican nationals referred to in paragraph 106 (4) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to arrange for legal representation of those nationals, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (c), of the Convention;

(8) By fourteen votes to one,

Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the conviction and sentences of Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera, after the violations referred to in subparagraph (4) above had been established in respect of those individuals, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 2, of the

Convention;

(9) By fourteen votes to one,

Finds that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment;

(10) Unanimously,

Takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention; and finds that this commitment must be regarded as meeting the request by the United Mexican States for guarantees and assurances of non-repetition;

(11) Unanimously,

Finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention, taking account of paragraphs 138 to 141 of this Judgment.

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