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International Instruments
The Vienna Convention on
Consular Relations
Overview
Under Article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR), local authorities must notify all detained foreigners "without delay" of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals' legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give "full effect" to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969; so fundamental is the right to consular notification and access that the US Department of State considers it to be required under customary international law in all cases, even if the detainee's home country has not signed the VCCR. As of 1 January 2000, at least 167 countries were parties to the VCCR.
Article 36
Communication and Contact with Nationals of the Sending State
- With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
- 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;
- 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;
- 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.
- 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.
Optional Protocol to the Vienna Convention on Consular Relations
The United States had ratified the VCCR Optional Protocol Concerning the Compulsory Settlement of Disputes. By ratifying the optional protocol, the United States had agreed to submit to the binding jurisdiction of the International Court of Justice for the settlement of claims based on the VCCR. However, on 7 March, 2005, Secretary of State Condoleezza Rice informed U.N. Secretary General Kofi Annan that the United States "hereby withdraws" from the Optional Protocol to the Vienna Convention on Consular Relations. The United States proposed the protocol in 1963 and ratified it -- along with the rest of the Vienna Convention -- in 1969. The USA was the first country to invoke the protocol before the ICJ, successfully suing Iran for the taking of 52 U.S. hostages in Tehran in 1979.
The ICJ's LaGrand Decision
On 27th June 2001, the International Court of Justice (ICJ) issued a binding judgment in the LaGrand case (Germany v USA) in which the Court ruled on the interpretation and application of rights conferred under Article 36 of the Vienna Convention on Consular Relations (VCCR)
The ICJs Avena Decision
On January 9, 2003, the Government of Mexico initiated proceedings against the United States in the International
Court of Justice (“ICJ”), alleging violations of the VCCR in the cases of Medellin and 53 other Mexican nationals facing the death penalty in the United States (Avena
and other Mexican Nationals (Mexico v. United States of America)). Mexico simultaneously filed an application with the Court for the issuance of provisional measures, which would require the United States to take no actions that might prejudice the rights of Mexico or its nationals pending the Court's decision on the merits.
On February 5, 2003 the International Court of Justice ordered the United States to temporarily stay the executions of three Mexican citizens on U.S. death row.
On March 31, 2004, the ICJ held, by a vote of fourteen to one, that the United States had breached Article 36(1) in the cases of 51 of the Mexican nationals. For the decision, click
here.
In particular, the ICJ held that in all 51 cases, the United States had breached its obligations under Article 36(1)(b) to inform detained Mexican nationals of their rights, and to notify the Mexican consular post of their detention. In 49 of these cases, the ICJ found that the United States had violated its obligations under Article 36(1)(a) to allow free communication and access between Mexican consular officers and Mexican detainees, as well as its obligation under Article 36(1)(c) concerning the right of consular officers to visit their detained nationals. In 34 cases, including Medellin’s, the ICJ held that the breaches of Article 36(1)(b) also violated the United States’ obligation under Article 36(1)(c) to enable Mexican consular officers to arrange for the legal representation of their nationals. On the question of remedies, the ICJ affirmed its earlier ruling in the LaGrand Case holding that where there has been a breach of Article 36 rights, the United States must allow the review and reconsideration of the conviction and sentence. The Court considered “that it is the judicial process that is suited to this task”. Contrary to the argument of the United States, the Court stated that consideration by way of executive clemency does not suffice in view of the fact that the clemency process, as currently practiced in the US does not appear to meet the requirements and it is therefore, not sufficient in itself to serve as an appropriate means of “review and reconsideration”.
Bilateral Mandatory Notification Treaties
The United States has signed bilateral mandatory notification treaties with over fifty countries. These treaties regulate the rights of governments to provide consular services to their citizens. Some of these agreements require that consular officials be notified of the arrest and/or detention of one of their nationals regardless of whether the national has made a request for assistance. Please click
here for more information.
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