Condensed: State authorities must (1) informdetained foreigners without delay of their right to have the consulate notified of their detention and their right to communicate with their consulate. (2) Upon request of the detainee, the authorities must (a) notify the consulate of which the detainee is a national without delay and (b) permit consular access to the detained national. Comprehensive: The right of access to consular officials by a foreign national who has been deprived of liberty to be visited by consular officials of his state of nationality is set out in article 36(1) of the Vienna Convention on Consular Relations (VCCR) and other international and regional human rights instruments.[1] Article 36(1) VCCR obliges state authorities to notify all detained foreign nationals without delay of their right to be visited by and communicate with consular officials.[2] The International Court of Justice has held that notification shall take place ‘once it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.’[3] According to the IACtHR the ‘notification must be made at the time the accused is deprived of his freedom, or at least before he makes his first statement before the authorities.’[4] Upon request of the detainee, the authorities must notify the consular post of the arrest without delay and permit consular access to the detained national.[5] Detainees who are foreign nationals ’shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the state to which they belong’, or, with regard to nationals without consular representation, refugees and stateless persons, ‘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’.[6] The International Court of Justice (ICJ) has found the United States to be in violation of article 36(1)(b) VCCR when it failed to inform arrested foreign nationals of their right to consular access when these nationals were later tried without proper legal counsel, convicted and sentenced to death.[7] [1] CMW art 16(7); Standard Minimum Rules for the Treatment of Prisoners art 38; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment art 16(2); Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live (1985) art 10; Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008) art V. [2] In respect of foreign juveniles, notification should be given to the consular authorities of the state of which a he is a citizen upon their illness, injury and death. See UN Rules for the Protection of Juveniles Deprived of their Liberty rule 56. [3]Mexico v USA ICJ (2004) (Avena) para 63. [4]Advisory Opinion of the Inter-American Court of Human Rights: Due Process of Law is a Fundamental Right (OC-16/99) (IACtHR 1999) para 106. [5] VCCR art 36(1)(b). [6] SMR 38(1) and (2). [7]Germany v USA (ICJ 2001) (LaGrand); Paraguay v USA (ICJ 1998); Mexico v USA ICJ (2004) (Avena). See also Advisory Opinion of the Inter-American Court of Human Rights: Due Process of Law is a Fundamental Right (OC-16/99).
State authorities must (1) inform detained foreigners without delay of their right to have the consulate notified of their detention and their right to communicate with their consulate. (2) Upon request of the detainee, the authorities must (a) notify the consulate of which the detainee is a national without delay and (b) permit consular access to the detained national.
Comprehensive:
The right of access to consular officials by a foreign national who has been deprived of liberty to be visited by consular officials of his state of nationality is set out in article 36(1) of the Vienna Convention on Consular Relations (VCCR) and other international and regional human rights instruments.[1]
Article 36(1) VCCR obliges state authorities to notify all detained foreign nationals without delay of their right to be visited by and communicate with consular officials.[2] The International Court of Justice has held that notification shall take place ‘once it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.’[3] According to the IACtHR the ‘notification must be made at the time the accused is deprived of his freedom, or at least before he makes his first statement before the authorities.’[4]
Upon request of the detainee, the authorities must notify the consular post of the arrest without delay and permit consular access to the detained national. [5] Detainees who are foreign nationals ’shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the state to which they belong’, or, with regard to nationals without consular representation, refugees and stateless persons, ‘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’.[6]
The International Court of Justice (ICJ) has found the United States to be in violation of article 36(1)(b) VCCR when it failed to inform arrested foreign nationals of their right to consular access when these nationals were later tried without proper legal counsel, convicted and sentenced to death. [7]
[1] CMW art 16(7); Standard Minimum Rules for the Treatment of Prisoners art 38; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment art 16(2); Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in which They Live (1985) art 10; Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008) art V.
[2] In respect of foreign juveniles, notification should be given to the consular authorities of the state of which a he is a citizen upon their illness, injury and death. See UN Rules for the Protection of Juveniles Deprived of their Liberty rule 56.
[3] Mexico v USA ICJ (2004) (Avena) para 63.
[4] Advisory Opinion of the Inter-American Court of Human Rights: Due Process of Law is a Fundamental Right (OC-16/99) (IACtHR 1999) para 106.
[5] VCCR art 36(1)(b).
[6] SMR 38(1) and (2).
[7] Germany v USA (ICJ 2001) (LaGrand); Paraguay v USA (ICJ 1998); Mexico v USA ICJ (2004) (Avena). See also Advisory Opinion of the Inter-American Court of Human Rights: Due Process of Law is a Fundamental Right (OC-16/99).