Consular Rights of Foreign Nationals: International Norms

prepared by: Mark Warren, Human Rights Research

Updated: November 2014

United Nations Instruments

Regional Declarations

International Court Rulings

State’s Obligation to Provide Consular Protection

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;

 

(c) To 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.

 

 


 

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;

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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;

(c) be assisted by a lawyer of his or her choice;

(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.


 

Council of Europe  European Prison Rules

 

https://wcd.coe.int/ViewDoc.jsp?id=955747

Foreign nationals

37.1 Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their state.

 


 


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.

-----

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)

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

 

 

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.

 

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Inter-American Commission on Human Rights,

Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas (March, 2008)

 

http://www1.umn.edu/humanrts/instree/IACHR-best_practices2008.html

 

Principle V

Due process of law

 

Persons deprived of liberty in a Member State of the Organization of American States of which they are not nationals, shall be informed, without delay, and in any case before they make any statement to the competent authorities, of their right to consular or diplomatic assistance, and to request that consular or diplomatic authorities be notified of their deprivation of liberty immediately. Furthermore, they shall have the right to communicate with their diplomatic and consular authorities freely and in private.

 


 

The State’s Obligation to Provide Consular Protection      

 Back to top

 

            More than a century ago, the U.S. Supreme Court recognized that governmental assistance and protection while abroad is a right of citizenship, declaring “there can be no doubt” that it is the privilege of every U.S. citizen “to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.” Slaughter-House Cases, 83 U.S. 36, 79 (1872).  While this decision equated an individual right to protection with citizenship in a particular nation, there is now an emerging viewpoint that nations must offer consular and diplomatic protection to their nationals abroad whenever their fundamental human rights are violated or endangered.

 

International law has long recognized the right of sending States to protect their nationals abroad from “denials of justice”: whenever foreigners are denied access to the host country’s courts for the protection of basic rights or when those courts respond in a grossly unfair manner. The international responsibility of every nation also includes the obligation to be accountable for illegal or negligent acts by its custodial agents against foreign detainees. Grave violations of the human rights of foreigners are also recognized exceptions to the general rule of non-interference in another country’s sovereignty. However, with the advent of peremptory human rights norms, what was once a discretionary sovereign right to protect nationals abroad in certain circumstances may now be gradually evolving into a mandatory obligation.

 

Some universal rights are considered to be so basic to the protection of human dignity that they create an international responsibility to prevent their violation, even in countries that have not recognized human rights treaties.  For example, torture inflicted on a national abroad can never be exempted from the sending State’s scrutiny as an internal affair of the offending nation.  The universal prohibition of torture and the duty to prevent it imposes obligations on all members of the international community, so that any use of torture against its citizens abroad produces a legitimate right—and responsibility—of other countries to intervene. 

 

Like torture, the prohibition of prolonged arbitrary detention has become a jus cogens norm of international law: an overriding obligation that all nations are required to observe even if they are not bound by a human rights treaty and regardless of any conflicting domestic laws.  Because protecting the most fundamental human rights is a duty imposed on all UN member nations, denying a swift and effective remedy for arbitrary detentions or inflicting severe ill-treatment in the cases of foreigners abroad arguably creates an obligation on the sending States to respond.

 

Although there appears to be growing support for recognizing a human rights-based duty to protect nationals abroad, the concept is still controversial. For example, the initial proposal brought before the International Law Commission in 2000 for articles to codify the law of diplomatic protection enshrined just such an obligation to protect. Subsequent drafts deleted this provision, however, after it became clear that there was widespread opposition within the UN General Assembly to enshrining a new international legal duty requiring States to protect their citizens abroad.  

 

 

International Law Commission

First report on diplomatic protection

UN Doc. A/CN.4/506 (7 March 2000) 

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N00/330/76/PDF/N0033076.pdf?OpenElement

 

 

Proposed Article 4

 

(proposal subsequently withdrawn)

 

1. Unless the injured person is able to bring a claim for such injury before a

competent international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State.

 

2. The State of nationality is relieved of this obligation if:

(a) The exercise of diplomatic protection would seriously endanger the

overriding interests of the State and/or its people;

(b) Another State exercises diplomatic protection on behalf of the injured

person;

(c) The injured person does not have the effective and dominant nationality of

the State.

3. States are obliged to provide in their municipal law for the enforcement of this

right before a competent domestic court or other independent national authority.

 

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Joint study on global practices in relation to secret detention
UN Doc. A/HRC/13/42 (Advance Unedited Version)
26 January 2010

http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.doc

 

Recommendations

292. On the basis of these conclusions, the Experts put forward the following recommendations. In practice, concrete measures will need to be taken depending on the specific contexts.

 

j)     Governments have an obligation to protect their citizens abroad and provide consular protection to ensure that foreign States comply with their obligations under international law, including international human rights law.

 

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Ottawa Principles on Anti-terrorism and Human Rights

(8 February 2007)

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

 

Principle 6.5: Obligation to extend consular and diplomatic protection

 

6.5.1 States should extend consular and diplomatic protection to their nationals. When there is reason to believe that a national is being mistreated by a foreign state in violation of jus cogens norms, including the prohibition against torture, states have an even greater responsibility to extend consular or diplomatic protection at the request of the national being imprisoned or detained by the foreign state or at the request of his or her family members.

 

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Excerpts from court decisions

 

Prosecutor v Furundzija [1998] ICTY 3 (10 December 1998), para. 151. 

 

The International Criminal Tribunal for the Former Yugoslavia recognized that the “prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community,” the violation of which “gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.”

 

Kaunda and others v. President of the Republic of South Africa, [2004] ZACC 5 (S. Afr. Const. Ct.), CCT 23/04, para. 69.

 

While recognizing that the government’s discretionary decisions in the field of foreign relations are entitled to great judicial respect, the Constitutional Court of South Africa found that there may well be “a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms.”  A request to the government for assistance “in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse.”

           

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European Union law

 

Every citizen shall be “entitled to protection by the diplomatic or consular authorities of any Member State…”.  Charter of Fundamental Rights of the European Union, art. 46, Nice, 7 December 2000, Doc. 2000/C 364/01. 

 

This provision “enshrined the right to consular and diplomatic protection as a fundamental right of the European citizen.”  European Commission, Green Paper: Diplomatic and consular protection of Union citizens in third countries, 28 November 2006, para. 1.2, EU Doc. COM/2006/0712.

 

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 National Constitutions

 

           The constitutions of at least 28 nations recognize a right to consular and diplomatic protection.  See, e.g.,

 

--Constitution of the Republic of Bulgaria, Article 25(5) (“Any Bulgarian citizen abroad shall be accorded the protection of the Republic of Bulgaria”)

 

--Constitution of the Republic of Estonia, Article 13 (“Everyone has the right to the protection of the state and of the law. The Estonian state shall also protect its citizens abroad”)

 

--Constitution of the Republic of Hungary, Article 69 (3) (“All Hungarian citizens are entitled to enjoy the protection of the Republic of Hungary while legally residing or staying abroad”)

 

--Constitution of the Republic of Latvia, Article 98 (“Everyone having a Latvian passport shall be protected by the State when abroad and has the right to freely return to Latvia”)

 

--Constitution of the Republic of Lithuania, Article 13 (“The State of Lithuania shall protect its citizens abroad”)

 

--Constitution of the Republic of Poland, Article 36 (“A Polish citizen shall, during a stay abroad, have the right to protection by the Polish State”)

 

--Constitution of the Portuguese Republic. Article 14 (“Portuguese citizens who find themselves or who reside abroad shall enjoy the state’s protection in the exercise of such rights...as are not incompatible with their absence from the country”)

 

--Constitution of the Republic of Romania, Article 17 (“Romanian citizens while abroad shall enjoy the protection of the Romanian State”)

 

--Constitution of China, Article 50 (People’s Republic “shall protect the legitimate rights and interests of Chinese nationals residing abroad”)

 

--Constitution of the Republic of Korea, Article 2(2) (“It shall be the duty of the State to protect citizens residing abroad as prescribed by Act”)

 

--Constitution of Guyana, Article 31 (“It is the duty of the State to protect the just rights and interests of citizens abroad”).

 

According to Prof. John R. Dugard, nations enshrining this protection in varying forms in their constitutions include: Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People's Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, Macedonia, Turkey, Ukraine and Vietnam.

 

(First Report on Diplomatic Protection, International Law Commission, Fifty-second Session, A/CN.4/506 (2000) at 30, para. 80). (Montenegro and Serbia also recognize a constitutional duty to protect their citizens abroad).

 

National laws

 

           Some countries have adopted national legislation that enshrines a citizen’s right to consular assistance and protection while abroad. Examples include:

 

-Denmark: Section 1(3) of Act No. 150 of 13 April 1983 on the Danish Foreign Service Act: "The Foreign Service provides assistance to Danish citizens as well as assistance to Danish businesses in their commercial relations with foreign countries.'

 

-Finland: Section 2(1) of the Consular Services Act of 1999: “Unless a consular service is subject to other provisions, consular services referred to in Chapters 3 to 10 of this Act may be provided for a Finnish
legal person or a Finnish citizen or for a foreign citizen residing permanently in Finland, who is in possession of or has been granted a permit to reside or work in Finland either permanently or in a comparable manner.'”

 

-Slovenia: Art. 24(1) of the Slovenian Foreign Affairs Act: "A consulate shall perform the following functions: 1) protect the interests of the Republic of Slovenia and its citizens and legal entities, and conduct consular-legal affairs [...]."

 

(For a discussion of the right to consular protection within EU member States, see Citizens Consular Assistance Regulation in Europe (CARE), Consular and Diplomatic Protection Legal framework in the EU Member States, December 2010, p. 608, available at: http://www.ittig.cnr.it/Ricerca/ConsularAndDiplomaticProtection.pdf )

 

 

National court decisions

 

           In some other countries, courts have found a constitutional obligation to protect citizens abroad:

 

United States

 

“Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States.”

 

Slaughter-House Cases, 83 U.S. 36, 79 (1873) (discussing privileges and immunities of citizens under the Fourteenth Amendment)

 

 

Germany

 

Fall Rudolf Hess, BVerfG, Beschl. v. 16.12.1980, 90 ILR 387-400, at 396 (decision by German Constitutional Court recognizing a constitutional duty to provide protection for German nationals and their interests in relation to foreign States).

 

 

 

 

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