https://doi.org/10.18593/ejjl.27700

INTERTWINING CONSULAR AND HUMAN RIGHTS LAW: A EUROPEAN CONTRIBUTION TO THE HUMANISATION OF INTERNATIONAL LAW1

A RELAÇÃO ENTRE DIREITO DE ASSISTÊNCIA CONSULAR E DIREITOS HUMANOS: UMA CONTRIBUIÇÃO EUROPEIA PARA A HUMANIZAÇÃO DO DIREITO INTERNACIONAL

Eulalia W. Petit de Gabriel2

Abstract: In the context of Article 36.1 (b) of the 1963 Vienna Convention on Consular Relations (VCCR’63) interpretation by the International Court of Justice and the Inter-American Court of Human Rights, this paper helps to clarify how European Law developments reinforce a renewed understanding of Article 36 VCCR ’63 as regards its interaction with Human Rights Law. How could a developing case law of the European Court of Human Rights linking individual consular rights with several different rights guaranteed by the European Convention on Human Rights—along with the European Union’s quasi-constitutional normative approach, including consular rights within citizenship rights and due process common guarantees—condition the strongly State-centred interpretation of Article 36 VCCR ’63 by the International Court of Justice? The need for a reflection on an interpretative framework for a possible evolutionary, practice-based and teleological approach is highlighted by the ICJ’s decision on the Jadhav case (India v. Pakistan).

Keywords: consular assistance rights; human rights law; Jadhav case; humanisation of international law; European Court of Human Rights.

Resumo: No contexto da interpretação do Artigo 36.1 (b) da Convenção de Viena sobre Relações Consulares (VCCR’63) de 1963 pela Corte Internacional de Justiça e pela Corte Interamericana de Direitos Humanos, este artigo ajuda a esclarecer como os desenvolvimentos do Direito Europeu reforçam a entendimento renovado do Artigo 36 VCCR ‘63 no que diz respeito à sua interação com o direito internacional dos direitos humanos. Como poderia uma jurisprudência em desenvolvimento do Tribunal Europeu dos Direitos do Humanos ligando os direitos consulares individuais a vários direitos diferentes garantidos pela Convenção Europeia dos Direitos Humanos - juntamente com a abordagem normativa quase constitucional da União Europeia, incluindo direitos consulares dentro dos direitos de cidadania e devido processo legal garantias comuns - condicionam a interpretação fortemente centrada no Estado do Artigo 36 VCCR ‘63 pela Corte Internacional de Justiça? O artigo objetiva enfatizar a necessidade de uma reflexão sobre um parâmetro para uma possível interpretação evolutiva, baseado numa abordagem prática e teleológica da decisão da Corte Internacional de Justiça no caso Jadhav (Índia v. Paquistão).

Palavras-chave: direitos de assistência consular; direitos humanos; caso Jadhav; humanização do direito internacional; Tribunal Europeu de Direitos Humanos.

Recebido em 20 de maio de 2021

Avaliado em 29 de maio de 2021(AVALIADOR A)

Avaliado em 3 de junho de 2021 (AVALIADOR B)

Aceito em 3 de junho de 2021

Nothing great is created suddenly, any more than a bunch of grapes or a fig.

If you tell me that you desire a fig, I answer you that there must be time.

Let it first blossom, then bear fruit, then ripen.
Epictetus (55–135 AD)

Introduction: a blooming interest in article 36 of the 1963 Vienna Convention on consular relations

Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR ’63) concerns the right of consular authorities to communicate and contact with nationals of the sending State when in the receiving State. As such, it governs the international rights and obligations of both the sending and the receiving States. At the same time, this Article spells out individual rights for nationals abroad and, more specifically in paragraph 1 (b), specific rights in case of arrest, prison or custody.3

Although the consular institution is one of the oldest that can be retraced in the intercourse among nations, public service to nationals abroad (including the norms governing assistance to detainees) has been mostly ruled by treaties, and particularly by bilateral agreements (Heyking, 1930, p. 816; Stuart, 1934, p. 498) rather than customary law, as was evinced in 1931 in the Affaire Chevreau (France v. United Kingdom).4 Efforts to codify this area have been first attempted by scholars5 and private societies,6 and later at public level7 and finally by the International Law Commission (ILC).8 Its draft convention was crucial to the adoption of the VCCR ’63.9

Nevertheless, Article 36 was not an easy rule to settle during the negotiating conference in 1963. Its adoption underlines the progressive development character of this convention in certain aspects (Ahmad, 1973, p. 60; Lee, 1966, p. 218, 1969, p. 41; Maresca, 1965, pp. 323-325, 1971, pp. 122-123, 1974, p. 49; Torres Bernárdez, 1963, p. 78; Venneman, 1965, p. 148; Vilariño Pintos, 2016, p. 122; Žourek, 1962, pp. 357, 368, 386-387). For some scholars, it represented the most difficult Article to agree on in the conference (Lee, 1966, p. 107; Torres Bernárdez, 1963, p. 99). Its basic dimension—the right of consular authorities to communicate with their nationals abroad—went undisputed during the 1963 intergovernmental conference, but the role of individual will in accepting or rejecting consular assistance and the nature of the information regarding this right under the convention both remained unclear.

The text we read today is the result of complex deliberations, and it was agreed on the last day of the conference after several proposals and different versions were rejected. Its final wording includes: a) the right of the sending State to communicate with its national while in detention abroad and b) the rights of the national to be informed of his consular rights, get consul authorities informed of his detention and communicate with the sending State consular authorities. It was the outcome of a transaction between the intent to return to the original ILC proposal, consisting in a compulsory and immediate communication of the detention to the sending State,10 the option of compulsory communication unless otherwise expressed by the detainee’s opposition11 and a third approach, subjecting that communication to the will of the detainee.12 The United Kingdom’s vote for the last option was made conditional to the introduction of an obligation to inform the individual of his consular rights;13 Article 36 was then approved (Petit de Gabriel, 2017b, pp. 10-12).

At present, the State’s right to communicate and assist is dependent on the individual’s previous right to be informed of consular rights and the individual’s acceptance of the communication of arrest to the consul and the assistance provided thereafter, unless, of course, a special rule applies (such as bilateral agreements that provide for compulsory notification of the arrest or detention, as is highlighted by the United States’ regulations on the matter).14 But neither the State’s right to communicate nor the detainee’s rights to receive assistance create per se an obligation for the State to assist. The emergence of such an obligation by the sending State has been scarcely studied.15

This provision has become relevant since 1999 by virtue of an advisory opinion of the Inter-American Court of Human Rights (IACtHR) (Aceves, 2000, p. 555), lately confirmed in its contentious case law, and a series of cases decided upon by the International Court of Justice (ICJ) since 1998 (Breard, 1998,16 LaGrand, 2001,17 Avena and Other Mexican Nationals, 2004, hereinafter Avena,18 and Jadhav, 201919) concerning the United States and Pakistan’s international responsibility for violation of the VCCR ’63. Up to Jadhav, these cases generated very interesting scholarly contributions to several points of law, such as the compulsory nature of provisional measures orders, the guarantees of non-repetition for similar and recurrent violations, the effects of ICJ decisions and their application by domestic courts, among others. But since “LaGrand”, the relationship between an individual’s right to information on consular rights and consular communication and assistance rights, as determined by Article 36.1 (b) VCCR ’63 and human rights law, respectively, constitutes a new field for research.20

The consideration of consular rights as more than ordinary rights, as rights connected to international human rights law, has already been raised on previous occasions: in 1985 the United Nations General Assembly (UNGA) adopted a Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, albeit without referring specifically to the cases of arrest or detention.21 In 1988, the UNGA adopted the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, where Principle 16 includes, along with the right to contact a relative, the right to be informed on consular rights (communication with and assistance from consular agents).22 Although those texts were to be considered soft law, soon after, in 1990, the UNGA adopted a hard law instrument, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW, in force since 1 July 2003),23 whose Article 16, para 7, reproduces the rights contained in Article 36.1 (b) VCCR ’63. This convention, however, is of limited effectiveness, as its current 53 Parties are all countries of migrant origin, not destination.

Moreover, in 2008, the Special Rapporteur on the human rights of migrants, Jorge Bustamante, whose mandate extends to all countries whether they are a party to the 1990 Convention or not, devoted part of his annual report to the “key challenges with regard to the criminalization of irregular migration”. Analysing “detention and expulsion” situations in his report, he stated that “in certain cases irregular migrants have been denied the right to communication”, which qualifies for “ill treatment” along with physical or sexual assault, contrary to the International Covenant on Civil and Political Rights (ICCPR), the CMW and the VCCR ’63. Among his final recommendations, he proposed that States should “fully and without prejudice investigate cases on an individual basis, provid[ing] due process guarantees and consular assistance.”24

Over the last few years, the Human Rights Council (HRC) has revisited two previous general comments and has included a reference to individual consular rights in relation to specific ICCPR Articles. In particular, in 2014, General Comment 35 (GC 35) on the right to liberty and security of persons (Article 9 ICCPR) was adopted, replacing GC 8 (1982) and including a reference to the right to communicate with consular authorities as a common safeguard to this right and for the prohibition of torture.25 The 2018 GC 36 on Article 6 ICCPR, the right to life (replacing GC 6 and 14), describes the failure to “promptly inform detained foreign nationals charged with a capital crime of their right to consular notification” as a serious procedural flaw, although not explicitly covered by Article 14 ICCPR, citing also the common safeguards described in GC 35 concerning the right to liberty and security.26

The 1999 IACHR advisory opinion made reference to the soft law UNGA instruments (although not to the CMW) and elaborated on the idea of individual consular rights as a fundamental guarantee in the context of death penalty cases (IACtHR, 1999). The ICJ has taken a different approach, yet in practice its position was not that far away from the topic. Alongside the universal level, the European context has produced several moves that strengthen the connection between consular and human rights law. A developing case law of the European Court of Human Rights (ECtHR) has established a link between individual consular rights and several different rights guaranteed by the European Convention on Human Rights (ECHR). Also, the European Union has undertaken a quasi-constitutional normative approach by including consular rights within citizenship rights and due process common guarantees, two initiatives that seek to develop the Lisbon Treaty and the Charter of Fundamental Rights of the European Union (CFREU).

Whether all this has conditioned the strongly State-centred ICJ’s interpretation of Article 36 VCCR ’63 when deciding upon Jadhav is uncertain. However, this topic highlights more transversal issues, such as the potential risk of fragmentation of international law and the confrontation between different understandings of the same rules; namely, universal (as expressed in ICJ case law) versus regional (as shown in IACHR and ECtHR case law) and general (consular law) versus specialised (human rights law, European law). Another aspect worth mentioning is that this topic underscores the interaction between the so-called classical international law governing the intercourse among nations and a more contemporary approach to a “humanised” international law establishing legal limits for State sovereignty over individuals—and their rights and freedoms—under its jurisdiction. The European contribution should help to bridge these seemingly opposed perceptions, offering fertile ground for systemic integration of international law. This could be compatible with the ICJ’s decision on Jadhav if we are to retain the original object and purpose of consular law in relation to the alleged violation of Article 14 ICCPR and due process rights in the case.

1 The end of fallow: old rules applied to a new context

As traditional as consular law may seem, the dawn of the twenty-first century has provided new opportunities for its progressive development. First, a relation between individual consular rights and fair process guarantees has been highlighted as regards death penalty cases. Along with it, a new approach to the right to liberty and security, and the guarantees for lawful detention, has been tested. And second, a broader spectrum of cases has been opened, no longer related to the death penalty, which highlight the connection with other rights such as the prohibition of torture or the right to family life. These factors may lead to a reinterpretation of the interdependence of conventional and fundamental rights.

1.1 Sowing the seeds: the Inter-American court of human rights and the international court of juzstice momentum

The IACtHR’s Advisory Opinion OC-16/99 was the first opportunity for an international tribunal—and a human rights tribunal as well—to address the issue of minimum judicial guarantees and the requirement of the due process “when a court sentences to death foreign nationals whom the host State has not informed of their right to communicate with and seek assistance from the consular authorities of the State of which they are nationals.”27 On 9 December 1997, “after the bilateral representations that the Government of Mexico had made on behalf of some of its nationals, whom the host State [the United States] had allegedly not informed of their right to communicate with Mexican consular authorities and who had been sentenced to death in ten states in the United States”, Mexico sought an advisory opinion from the IACtHR on Article 36 VCCR ’63 in relation to due process guarantees. This same context would later lead Mexico to submit an application to the ICJ, claiming the international responsibility of the United States for violating the VCCR ’63 (Avena case). Mexico was seeking the IACtHR to assert that Article 36 of the VCCR ’63 contained provisions concerning the protection of human rights, “applied and interpreted in the light of the expression ‘all possible safeguards to ensure a fair trial’”, as determined in Article 14 of the ICCPR. It further enquired about “the juridical consequences of the imposition and application of the death penalty in the light of failure to give the notification referred to in Article 36(1)(b) of the Vienna Convention”28 with respect to the VCCR ’63, the ICCPR, the Organization of American States Charter and the American Declaration.

For the IACtHR, Article 36 VCCR’63 unanimously confers rights upon detained foreign nationals, among them the right to information on consular assistance, with said rights carrying with them “correlative obligations for the host State”; it “concerns the protection of the rights of a national of the sending State and is part of the body of international human rights law.” The Court further stated that “the individual’s right to information established in Article 36(1)(b) allows the right to the due process of law recognised in Article 14 of the ICCPR to have practical effects in concrete cases”, arguing that Article 14 provides 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. This has, in turn, been subsequently confirmed by later contentious case law.29

The IACtHR established the final purpose of due process guarantees, according to which they “recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination.”30 The Court further affirmed that the impact of the VCCR ’63 violation over due process rights depends on the circumstances of the case. Concerning death penalty cases, the IACtHR stated that:

those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive (IACtHR, OC-16/99, at para 135).31

The Court concluded that

nonobservance of a detained foreign national’s right to information, recognized in Article 36(1)(b) of the Vienna Convention on Consular Relations, is prejudicial to the guarantees of the due process of law; in such circumstances, imposition of the death penalty is a violation of the right not to be “arbitrarily” deprived of one’s life, in the terms of the relevant provisions of the human rights treaties (eg the American Convention on Human Rights, Article 4; the ICCPR, Article 6) with the juridical consequences inherent in a violation of this nature, i.e., those pertaining to the international responsibility of the State and the duty to make reparations (IACtHR, OC-16/99, at para 137).

The IACHR’s conclusions were assumed by unanimity, except on the matter of consequences, which the presiding judge Jackman rejected.

The impact of this opinion must not be underestimated. In 2000, the UN General Assembly “[t]aking note of the decisions of the relevant international juridical bodies . . . particularly advisory opinion OC-16/99, issued by the Inter-American Court of Human Rights . . . , regarding the right to information about consular assistance within the framework of due process guarantees”, adopted a resolution requesting “all Member States, in conformity with their respective constitutional systems, effectively to promote and protect the human rights of all migrants” by means of all available human rights instruments.32 Its impact on the most recent HRC general comments has already been advanced, and it has also been cited by the ECtHR in the case Öcalan v. Turkey.33

The ICJ, on the other hand, has analysed the domestic implementation of consular rights of foreign nationals since 1998 (eg. Breard case, Paraguay v. United States of America) (International Court of Justice [ICJ], 1998). The Court has defined its rationale in its June 2001 judgment on the LaGrand case (Germany v. United States of America) (ICJ, 1999) and, in a more detailed manner, in 2004 in the Avena case (Mexico v. United States of America). This approach has been reconfirmed and expanded in the 2019 Jadhav case decision (India v. Pakistan).

The ICJ has addressed the consular rights issue from a different perspective, recognising, however, the individual character of the rights concerned.34 The Court described Article 36 as “an interrelated regime” of individual and State rights,35 affirming that it needed not to enter into a discussion of the “character of the right under Article 36 as a human right”,36 as individual rights were to be preserved through diplomatic protection.

While the ICJ’s perspective has not dwelled on the nature of rights as human rights when elaborating on the VCCR ’63 violation, it has gone further than the IACtHR as regards the practical consequences of the violation. The applicants in the different cases (Paraguay, Germany, Mexico and India) asked for the restitutio in integrum. Under this concept, they claimed that the domestic procedures connected to the violation of the VCCR should be nullified and, consequently, also should the death sentences that had been imposed without respect for individual consular rights. The ICJ has not endorsed that petition (nullity). Yet, dissatisfied with a mere statement of due reparation for the breach of Article 36.2 VCCR ’63, which expressly demands domestic law to enable full effect of the rights accorded, it ruled that the responsible State should grant a “review and reconsideration of the sentences” by any means of its choosing.37 Nevertheless, the ICJ considered that the clemency process, as currently practised, did not meet the appropriate requirements, stressing in Jadhav the need for effectiveness in the review and the reconsideration means.38

Viewed from a human rights perspective, the reparation granted identifies itself as a procedural guarantee, i.e. by means of a judicial review, for the rights of both the individual and the sending State. However, the ICJ insisted that it was not considering a question of due process guarantees but rather one of violation of the VCCR.39 The Court also analysed the “gravity of the consequences” in LaGrand and Avena cases, stating that the need for a “review and reconsideration” process was required specifically when “foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties.”40 In this sense, the ICJ contributed to the idea that the weight to be accorded to the violation of consular rights and the measures of redress depended on its gravity, either in terms of the length of the detention or the penalty itself. Later, in Jadhav, the ICJ went a step further, expressly connecting the consequences of the violation of Article 36 VCCR ’63 with fair trial, although using the concept of “principles” rather than “right” concerning fair trial:

The Court points out that respect for the principles of a fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstance of the present case, it is essential for the review and reconsideration of the conviction and sentence of Mr. Jadhav to be effective. The Court considers that the violation of the rights set forth in Article 36, Paragraph 1, of the Vienna Convention, and its implications for the principles of fair trial, should be fully examined and properly addressed during the review and reconsideration process. In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration (ICJ, Jadhav, at para 145).

Consequently, and although the ICJ had rejected to go into the specifics of Article 14 ICCPR violations,41 it took notice of the Covenant for the interpretation of what the possible remedy should be.42 This statement clearly highlights the role of individual rights violations, beyond the inter-State content of the relationship and the reparation to be granted. The human rights connection was underlined both by Judges Cançado Trindade and Robinson in their individual declarations.

Furthermore, when it came to the analysis of other consequences under the responsibility scheme in Avena case, particularly in terms of guarantees of non-repetition, the Court considered that

[t]he provision of such information [rights under Article 36.1 (b) of the Vienna Convention on Consular Relations] could parallel the reading of those rights of which any person taken into custody in connection with a criminal offence must be informed prior to interrogation by virtue of what in the United States is known as the Miranda rule.43

By doing so, albeit eluding a “fundamental rights” designation, the Court placed the right granted by Article 36 VCCR ’63 on the same level as the guarantees against arbitrary detention or procedural rights at the detention moment.

In sum, the addition of the IACtHR’s consultative opinion and the ICJ’s decisions places Article 36 VCCR ’63 at a crossroads between the right to liberty and security (on the same level as Miranda rights) and the right to a fair trial (when invoking or rejecting Article 14 ICCPR). The IACtHR also acknowledged the intertwining nature of human rights violations in those cases when the death penalty imposed in violation of the right to a fair trial (including VCCR ’63 rights as a due process guarantee) becomes an arbitrary deprivation of life in accordance with human rights conventions. This radiant character is also seen, in a way, in ECtHR case law, which we will describe below.

1.2 Sprouting and branching rights together: the European Court of Human Rights era

In the last decade, the ECtHR has initiated—sometimes unsolicited—an interesting approach to Article 36 VCCR ’63 violations. Before the VCCR’63 Convention was directly invoked, the consular assistance rights were considered a death penalty guarantee in Ökalan v. Turkey, by way of reference to the IAcHR OC-16/99, both in Chamber and Grand Chamber judgments on the case.44

One of the first cases where this Article was invoked is M and Others v. Italy and Bulgaria. The applicants claimed for Bulgaria’s concurrent responsibility—the bulk of the allegations, however, were addressed to establish Italy’s responsibility, for this was the State where the violations occurred—given that no consular authority was present during the interrogation in police detention facilities.45 In 2012, the Court (in a Grand Chamber decision) rejected the allegations and considered that the case was exclusively conducted against Italy. In fact, a misunderstanding on the part of the ECtHR can be observed, as it concluded that “the Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant’s complaints under international law or otherwise to intervene with the authorities of another State on his or her behalf”, citing its previous case law on the matter.46 The claimant’s allegations did not concern diplomatic protection as an expression of a request for international responsibility nor the eventual existence of an obligation to assist but rather the consular communication rights of the foreign national under Article 36.1 (b) VCCR ’63.

Also in 2012, in El-Masri v. the former Yugoslav Republic of Macedonia,47 the Court was faced with the problem of extraordinary renditions in the aftermath of the 11 September attacks and the so-called fight against terrorism. Some European States participated in the CIA program to transfer persons suspected of terrorism to the jurisdiction of the United States of America, either tolerating or contributing to irregular detentions or permitting the unrestricted use of European States’ airspace. The affair, first allocated to the Fifth Section (2010) and then to the First Section (2011), was later referred to the Great Chamber (2012), with the decision cited and confirmed in 2016 in Nasr and Ghali v. Italy.48 In this case, a German national

had been subjected to a secret rendition operation, namely that agents of the respondent State [the former Yugoslav Republic of Macedonia] had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to agents of the United States Central Intelligence Agency (CIA) who had transferred him, on a special CIA-operated flight, to a CIA-run secret detention facility in Afghanistan, where he had been ill-treated for over four months. The alleged ordeal lasted between 31 December 2003 and 29 May 2004, when the applicant returned to Germany (ECtHR, El-Masri, at para 3).

In its decision, the Court stated that the detention had been irregular for a number of circumstances: “There was no court order for the applicant’s detention”; “His confinement in the hotel was not authorised by a court. Furthermore, the applicant’s detention in the respondent State has not been substantiated by any custody records”; “During his detention in the respondent State, the applicant did not have access to a lawyer, nor was he allowed to contact his family or a representative of the German embassy in the respondent State, as required by Article 36 § 1 (b) of the Vienna Convention on Consular Relations”; and “he was deprived of any possibility of being brought before a court to test the lawfulness of his detention.”

His unacknowledged and incommunicado detention means that he was left completely at the mercy of those holding him. . . . Lastly, the Court finds it wholly unacceptable that in a State subject to the rule of law a person could be deprived of his or her liberty in an extraordinary place of detention outside any judicial framework, as was the hotel in the present case. It considers that his detention in such a highly unusual location adds to the arbitrariness of the deprivation of liberty (ECtHR, El-Masri, at para 236).

Substantially in the El-Masri case, the VCCR ’63 rights were merely one out of several guarantees integrated in a violation of Article 5 of the ECHR (right to liberty and security). That said, the VCCR violation—by itself and on its own—may have not trespassed the gravity threshold to be considered as an Article 5 violation, but concurrently with other failing guarantees, it allowed the Court to assert that violation. Further on, the Article 5 violation in El-Masri case compromised the right of the applicant to private and family life. For the Court, “an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities”; therefore, “[h]aving regard to its conclusions concerning the respondent State’s responsibility under Articles 3 and 5 of the Convention, the Court considers that the State’s actions and omissions likewise engaged its responsibility under Article 8 of the Convention.”49

In 2017, in Lebois v. Bulgaria,50 the ECtHR dealt with Article 36 VCCR ’63 unsolicitedly. A French national submitted an application alleging Article 3 (prohibition of torture) and Article 8 (right to private and family life) violations while in detention in Sofia, Bulgaria, in 2014. These alleged violations concerned his detention in three different periods and facilities (police detention, pretrial detention and post-conviction prison). In its 2017 decision, the ECtHR rejected the Article 3 ECHR allegations. Although the Court acknowledged a violation of Article 8 for the final part of the pretrial detention and post-conviction period, it was barred from deciding on the previous police detention and initial days of the pretrial period due to an out-of-time submission of the claim. Nevertheless, the Court considered that, during those early days, the facts of the case raised more than a “potentially serious issue under Article 8 of the Convention”, taking into account that:

[a]s evidenced by that provision, as well as the other relevant provisions of Bulgarian law, European Union law and international law…that obligation [access to his family] takes on an added importance when the detainee is an alien whose family may be in a different country’ and ‘can also amount to an important safeguard to prevent arbitrary detention (ECtHR, Lebois, at para 53).

Domestic law concerning the right to contact family and make telephone calls was enough to weigh up—as it did—a potential Article 8 violation. The applicant never claimed violation of his right to be informed of consular rights or his right to contact national consular authorities. But, in this case, individual consular rights (right to be informed on the consular rights themselves, right to inform the consular post and right to communicate with consular authorities) governed the right to contact his family, as the Court had already verified in El-Masri case: the applicant was not able to inform anyone of his deprivation of liberty for twelve days, until, with the help of a co-detainee, he contacted the consulate of France in Sofia on 5 February 2014, which in turn informed his parents of his arrest and detention.

That may be the reason why the Court included the international norms ruling consular contact rights in its analysis of the “Relevant domestic law and practice”. Particularly when stating the law, the Court pointed out Bulgaria’s accession to the VCCR ’63 in 1989, which was published in the State Gazette on 25 May 1999 and is, by virtue of Article 5.4 of the 1991 Constitution, part of Bulgarian domestic law. Along with other domestic pieces of legislation, it also resorted to Directive 2013/48 of the European Union (EU) of 22 October 2013, which governs the right to

(a) have a third person informed of the deprivation of liberty, (b) communicate, while deprived of liberty, with third persons, and (c) have the consular authorities of one’s State of nationality informed of the deprivation of liberty without undue delay and to communicate with those authorities.

Bulgaria had not yet, at the date of judgment, approved the 2016 transposition-amendment of the 2005 Code of Criminal Procedure. Therefore, the invocation of the EU Directive in the judgment should have been regarded as legally irrelevant: it had not been transposed and, as a result, was not applicable to the case. It served, however, to stress the connection between consular rights and the right to family contact, since they are both ruled by this same directive.

The novelty is that Lebois case was a low profile case on its own: a minor crime (breaking into cars with a view to stealing items from them), a “short” period of twelve days without consular and/or family contact, a minor prison sentence (three months’ imprisonment) due to a guilty pledge and an agreement with the prosecutor, as well as a short detention—having served most of the sentenced time in pretrial detention, the applicant spent only six days in prison.

There are other cases where the ECtHR has referred to individual consular rights in connection to ECHR violations but without a specific reference to Article 36.1 (b) VCCR ’63. In 2014, in Kim v. Russia, the Court qualified the inexistence of consular assistance in the case of a stateless person as creating a “particularly vulnerable situation”. Taking into account the circumstances surrounding the applicant’s detention—with a view to expulsion—said vulnerability was considered to be contrary to Article 5.1 ECHR.51 On 26 October 2017, the ECtHR decided upon a case of torture involving police mistreatment of detainees during the G8 summit held in Genoa in 2001. In that judgment, the Court reinforced the qualification of Article 3 ECHR violations, since other rights were also violated, including the right to consular assistance for foreign nationals. More specifically, the Court stated that 

Outres les épisodes de violence susmentionnés, la Cour ne saurait ignorer les autres atteintes aux droits des requérants s’étant produites à la caserne de Bolzaneto. Aucun requérant n’a pu prendre contact avec un proche, un avocat de son choix ou, le cas échéant, un représentant consulaire.52

In 2020, the ECHR has found a sound justification for a forced transfer of a consular agent who, due to consecutive pregnancies, made difficult for the State to assure proper consular assistance to nationals abroad. This case Napotnik v. Romania, although not directly related to our subject matter, showcases the relevance accorded to consular assistance as a public interest and a mean for the protection of the rights of others, balanced against the right to non-discrimination on situations such as gestation periods,53 which should not go unnoticed.

In summary, Article 36 VCCR ’63 has already been connected to at least the following human rights in the aforementioned case law:

1. the right not to be arbitrarily deprived of one’s life54 as a result of a violation of fair trial guarantees, in IACtHR OC-16/99 and by reference to this, in Öcalan v. Turkey, by the ECtHR;
2. the prohibition of torture,55 in Azzolina and Others v, Italy, 2017;
3. the right to liberty and security,56 in El-Masri, 2012, and Kim v. Russia, 2014, by the ECtHR;
4. the right to a fair trial,57 in IACtHR OC-16/99, 1999; Breard, 1998; LaGrand, 2001; and Avena, 2004, as alleged by the applicants, although unacknowledged by the ICJ. Currently alleged by India in Jadhav;
5. the right to respect for private and family life,58 in El-Masri, by the ECtHR, and in Lebois, by way of construction on the ECtHR statement of the law in the case.

This trend is being taken forward at the universal level, since Article 36 VCCR ’63 rights have been incorporated into the Human Rights Committee (HRC) General Comment 35 on Liberty and Security of Persons59 details the common safeguards for the prevention of torture and the protection against arbitrary detention, qualifying the denial of consular assistance as a contributing factor for its violation. It has also been included in GC 36 on the Right to Life.60 Concerning the draft of this GC, only the United States had opposed the correlation between death penalty guarantees and Article 36 VCCR ’63 rights.61 A softer critique was presented by Japan, who finally proposed a draft conceding a margin of appreciation on the impact of the violation of consular rights in the due guarantees in capital cases.62 Beyond this cumulative case law, normative developments in the European Union have elevated consular assistance rights to fundamental rights status, as it is now addressed.

2 Ripening days: towards a European, quasi-constitutional approach

The European Union has addressed consular assistance, impacting the life of individuals under EU Member States (EUMS) jurisdiction both inland and abroad, with a twofold approach, either as citizenship rights or as common procedural guarantees that develop the Area of Freedom, Security and Justice (AFSJ). By incorporating the CFREU, the Lisbon Treaty has consolidated both normative trends and, as a result, the link between individual consular rights and fundamental rights.

2.1 Unexpected fruits of deepening integration: citizenship rights or the ‘extended’ protection of nationals abroad

The transformation of the European Communities into a European Union in 1992 was partly conceived in terms of democratising the initial project created in the 1950s (Pausch, 2014). As a piece of this process, the Treaty of Maastricht created the status of European Union citizenship,63 including a form of “extended” consular assistance64 whereby European citizens can be assisted by consul officials from any member State in case no consular agency of their own country of origin exists in the country of destination. Today, this is ruled by virtue of Article 20.2 (c) of the Treaty on the Functioning of the European Union (TFEU), representing one of those citizenship rights. The current Article 35 of the Treaty on European Union recalls the duty of “diplomatic and consular missions of the Member States . . . in third countries” to “contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c)” TFEU.

The idea of granting “extended” consular assistance—i.e. consular assistance given by a third State—is not a new one, and it is foreseen in Article 8 VCCR ’63. Precedents can be traced to as early as 1911, with the Treaty of Caracas, signed between Colombia, Ecuador, Peru and Venezuela;65 modern European practice, however, is much more comprehensive in scope.66 Just like the rights encompassed in Article 36 VCCR ’63, the EU’s ‘extended’ consular assistance right was originally just a ‘conventional’ right, an individual right granted by an international treaty (TEU/TFEU) to a European Union Member State national. Nevertheless, since the adoption of the CFREU in 2001 and, more specifically, its granting of “the same legal value” as the “constituent” treaties by virtue of Article 6.1 TEU as of 2007 (in force 2009), it has reached a fundamental right status of its own, in accordance with Article 46 CFREU. Still, the real impact of this measure is difficult to assess, for the difficulties of its implementation have not been satisfactorily overcome yet.

The original 1992 provision was first developed on 19 December 1995 in Decision 95/553/EC,67 in force since 2002. It detailed the content of “extended” consular assistance, expressly including in Article 5.1 (c) the assistance “in cases of arrest or detention”. This decision called for a follow-up plan within five years. The Council of the European Union created a working group on consular cooperation (known as COCON, or Working Party on Consular Affairs). In 2006, this group laid down the Guidelines on Consular Protection of EU Citizens in Third Countries.68 Simultaneously, the European Commission prepared a Green Paper on ‘Diplomatic and consular protection of Union citizens in third countries’69 where attention was drawn to the need of consent from third countries for this consular assistance to be granted, although according to Article 8 VCCR ’63, tacit consent would suffice. After the Green Paper, an Action Plan 2007–2010 was proposed. This plan suggested easing the access to this right through the creation of an e-portal on consular assistance and protection, which is already in operation. The European Commission recommended obtaining the express consent of the receiving State70 by negotiating bilateral agreements with third countries; the Commission itself should negotiate a clause for mixed agreements. It also proposed the need to analyse whether such a protection could be provided by the Commission’s delegations (currently the European External Action Service) in case the assistance required were specifically part of the European Union competences.

According to the CARE Project Report (CARE Report), there is no regular practice concerning the renegotiation of bilateral agreements for such a clause by EUMS, and notification is generally given on a case-by-case basis.71 On the other hand, the option of introducing a clause in mixed agreements has already been implemented at least twice, i.e. in the cases of the Republic of Kazakhstan and Afghanistan.72

The Lisbon Treaty signified a change in the wording of citizenship rights, evincing that consular protection was a direct-effect disposition that concerned an individual right whose denial could generate State responsibility for damages and be judged by the European Court of Justice, as the European Commission clearly informed the Council, the European Parliament, the Economic and Social Council and the Committee of the Regions.73 Such a conclusion did not exist before the signing of the Lisbon Treaty.74 Besides, after the ratification of the Lisbon Treaty, new legal acts—and the possibility of control by the Court of Justice—became available, so the Commission recommended the adoption of new cooperation rules by means of a directive and in accordance with a special legislative procedure. A proposal was submitted in 2011 and passed with amendments in the European Parliament before the end of 2012. The Council took its time and passed it on 20 April 2015 as Directive (EU) 2015/637.75 Transposition period ended on 1 May 2018.76

The specific rules on consular assistance to detainees in the Directive (in case of detention or prison, according to Article 9 (a) Directive (EU) 2015/637) are rare, just as in the previous 1995 decision. Nevertheless, direct effect would be easily deduced by courts in the event of late or non-transposition by any Member State. The most significant provision in this Directive is the possibility for Member States to conclude intra-EU bilateral agreements for this type of assistance, which would preclude the individual right of choosing the assistance of any other Member State once the agreements are made public (Article 7 Directive (EU) 2015/637).

In other words, by being included as part of citizenship rights in EU treaties and the CFREU, consular assistance in case of detention abroad is granted a double status, both as a citizenship right and as a fundamental right. It is currently considered a direct-effect Article in the treaties; further, the directive specifically ruling on the matter must also be seen as including direct-effect rules, even if transposition is inadequately made or not made at all. As a CFREU rule, a pleading before the Court of Justice of the European Union (CJEU) should be linked with the implementation of European law. However, Article 20.2 (c) TFEU can be claimed in that context, given that EU treaties are a primary source for EU law.77 No case law on this Article—or any related secondary legislation—is yet available. However, the problems that may arise are significant, considering that ‘extended’ consular rights are based on the non-discrimination and application of the national standard of the State granting assistance to a non-national European citizen. National legislations have different conceptions regarding consular assistance to detainees, from a right guaranteed by means of a judicial review due to the refusal to provide assistance, to a mere matter of policy of discretionary character.78 This recalls the need for a debate on the obligation of the State to grant consular assistance in case of arrest or detention and the consequences of failing to provide it.

A more wilful approach has been adopted to ensure consular assistance within the territorial jurisdiction of EUMS. Part of the normative program to achieve an Area of Freedom, Security and Justice (AFSJ) included individual consular rights in the framework of common procedural guarantees in case of detention and conviction. ICJ case law (particularly Germany’s involvement in LaGrand case) has not been exempt from this new approach.

2.2 Voluntary cross-fertilisation in the area of freedom, security and justice: common procedural guarantees for all

The EU has underscored the procedural safeguards and the fairness of proceedings as a keystone of the process to build an AFSJ, which is based on creating mutual confidence among the judiciaries of each Member State. From the very first document on the creation of an AFSJ in 2003, the European Commission identified the common procedural guarantees topic as the human rights aspect of criminal proceedings. That same year, a Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union was published, clearly stating that no new rights were to be created.79 To identify the rights concerned, the concept of “fair trial rights” should be given priority, thereby comprising the rights to legal assistance and representation; competent, qualified (or certified) interpreter and/or translator; proper protection for especially vulnerable categories and consular assistance. The Green Paper took into account different expressions of the right to a fair trial, as ruled by Article 6 of the ECHR, Article 14 ICCPR, Article 52 of the Rome Statute, Article 18 of the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute, Article 20 of the International Criminal Tribunal for Rwanda (ICTR) Statute and Article 47 of the CFREU.

As regards the right to consular assistance (when the arrestee is not a national of the prosecuting State), the 2003 Green Paper included an express mention to Article 36 VCCR ’63 and the eventual causes of action in the International Court of Justice in case of non-compliance. It stated, however, that:

[t]his does not represent a remedy for the actual individual who has been the victim of the breach. Even if his home State is prepared to bring an action against the offending State, it will not provide an effective and practical remedy for the individual concerned. It is therefore worth considering what remedies should or could be available to an individual in this situation (COM/2003/75, pp. 36-37).

It is undeniable that the LaGrand case, where Germany was the applicant, had an impact on the paper. The Commission proposed to rule on those “basic rights”—including consular rights—by developing a European common Letter of Rights which should be provided to individuals upon detention, in line with what the ICJ advanced in 2001 in LaGrand case for the possible inclusion of consular rights in the American “Miranda rights”, later affirmed in Avena case (2004).

After a public audience in June 2003, the Commission proposed a Framework Decision on certain procedural rights for criminal proceedings, based on Article 31 TEU (then referring to criminal judicial cooperation).80 In June 2007, following several unproductive years of discussions in the Council of the EU, the door was opened to an enhanced cooperation on the matter. Eventually, a new approach was taken81 whereby the different rights and guarantees would be addressed in separate norms.82 With the entry into force of the Treaty of Lisbon in 2009, new competences and an access to general legal acts—such as directives and regulations—were promptly available for the development of the AFSJ. This led the Council to adopt a Plan for Action in which consular rights were again included.83 The Plan for Action was followed by a set of directives for the different common procedural guarantees, with two of these Directives addressing individual consular rights.84 Although the EU is neither a State nor a party to the Vienna Convention on Consular Relations, which certainly does not consider participation of international organisations, these directives must be seen as equivalent to “the laws and regulations of the receiving State”, as they rule the exercise of a detainee’s individual rights in the European Union Member States, although domestic norms of compliance are requested (the so-called national transposition).85

First, Directive 2012/13 includes—among other rights described in Articles 3 and 4—the right to be informed of the right to communicate with the consul by means of a written “Letter of Rights”, which should be “promptly” provided to those arrested or detained in a language that they understand. According to Point 19 of the Preamble, “promptly” must be interpreted as “in the course of the proceedings and at the latest before the first official interview of the suspect or accused person by the police or by another competent authority.” A model Letter of Rights is annexed to the Directive, which includes the following statement: “If you are a foreigner, tell the police if you want your consular authority or embassy to be informed of your detention. Please also tell the police if you want to contact an official of your consular authority or embassy.”86

Second, Directive 2013/48 governs the legal assistance and access to a third person (a relative, employer or other, as mentioned by the ECtHR in Lebois case). It includes the rights to inform consular officials and to communicate with them. Paragraph 37 of the Preamble expressly mentions Article 36 VCCR ’63. Article 7 of the Directive reflects the content of VCCR ’63 rules, making consular assistance dependent on a detainee’s will. This Article is excluded from the possibility of any temporary derogation, contrary to the right to legal assistance and the right to have a third person informed, which can be temporarily suspended under certain circumstances.87

Both Directives are conceived as the normative development of Article 47 CFREU, which concerns the “Right to an effective remedy and to a fair trial”.88 Moreover, Member States are required to “ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive” (Directive 2012/13, Article 8.2). Paragraph 1 further mandates Member States to record “when information is provided to suspects or accused persons in accordance with Articles 3 to 6”; therefore, a national procedure must be established. Directive 2013/48 adds the need to have “an effective remedy under national law in the event of a breach of the rights under this Directive”. Remedies are, nevertheless, the realm of Member States provided they are effective. In relation to consular rights, this would go in line with the “review and reconsideration” ruling by the ICJ on the failure of the United States to comply with the VCCR ’63 or the need for procedural consequences stated by the OC-16/99 in death penalty cases. A vast majority of EUMS transposition rules (24 out of 28) include, among an array of remedies, the possibility of an annulment of the Court’s judgement and retrial.89 There is no CJEU case law on Directives 2012/13 and 2013/48 as regards consular rights yet.90

To summarise the European Union’s contribution to the consular and human rights relationship, we could state that these two EU normative developments help to anchor the fundamental nature of consular assistance as one of the guarantees of contemporary human rights law. Both aspects (“extended” consular assistance as part of citizenship rights and consular rights as part of common procedural guarantees) are comprised in Articles 46 and 47 CFREU. Nevertheless, their respective purpose and scope differs: the former is to be implemented outside EUMS territory, and might be subject to CJEU control, which calls for the very interesting topic of extraterritorial application of human rights (Gondek, 2005; King, 2009; Meron, 1995), whereas the latter relates to the territorial obligations of EUMS and, as a result, is subject to control by the CJEU and, on specific cases, by the ECtHR.91

Further, these EU developments do not cover fully and completely the scope of consular rights included in Article 36 VCCR ’63. The two Directives on common procedural guarantees have a more restrained scope than the VCCR ’63. They apply “to any situation where, in the course of criminal proceedings, suspects or accused persons are deprived of liberty within the meaning of Article 5(1)(c) ECHR, as interpreted by the case-law of the European Court of Human Rights.”92 In fact, the ECHR procedural guarantees apply both to civil and criminal proceedings, although the ECtHR has already recognised obiter dictum the applicability of consular assistance rights in cases of detention with a view to expulsion of foreign nationals in irregular migrant situations, which in most States is an administrative, rather than a criminal, proceeding. The Directives also have a reduced scope compared to Article 47 CFREU on the right to a fair trial. This right simultaneously covers a broader range of situations than the ECHR,93 applying to any type of proceeding, and not only civil or criminal ones.94 Article 47 CFREU, then, encompasses Article 36 VCCR ’63, which applies to other forms of detention unrelated to criminal proceedings, such as detention of migrants prior to expulsion, psychiatric internment, or admission of elderly people in geriatric centres against their will or without their consent.95 Citizenship “extended” consular assistance rights (when abroad in a third country), however, are not expressly restricted to criminal proceedings but rather to “arrest” and “detention”, fulfilling in a more comprehensive way the cases in which the VCCR applies. This broad understanding also represents the way in which “deprivation of liberty” is described by the Human Rights Committee when referring to examples of deprivation of liberty such as “police custody, arraigo, remand detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization, institutional custody of children and confinement restricted to an area of an airport, as well as being involuntarily transported.”96

Equally important, citizenship “extended” consular rights (for instance, Article 46 CFREU when abroad in a third country) only benefit European Member States nationals (thus enjoying European citizenship), whereas Directives 2012/13 and 2013/48 apply “to suspects and accused persons regardless of their legal status, citizenship or nationality.”97 Although it does not concern consular assistance rights themselves, applying only to the extended enforcement by a third European country, this subject-matter restriction of citizenship rights collides with the basic idea of fundamental rights as rights pertaining to every human being; yet, according to domestic constitutional practices, it discriminates between rights for nationals and foreign nationals. Hopefully, that is not the case for Article 47 CFREU on fair trial and its development through both directives concerning consular rights, given that these directives determine that “everyone” is entitled to such a right.

3 What harvest is to be reaped?

The relationship between the rules detailed in Article 36 VCCR ’63 and human rights law has already come a long way since its establishment by the UNGA in soft law documents in 1985 and 1988. From that moment on, this connection has appeared in multiple references, increasing the number of correlated human rights specifically linked, thanks among other reasons to ECtHR jurisprudence. The European Union’s contribution to this evolution is significant and has been firmly established in later years through both primary and secondary legislation.

This leads to a final reflection: on the one hand, and from a formal perspective, there is a process of confluence among legal regimes and adjudication bodies which should be analysed based on the ILC report on Fragmentation of International Law and the formal tools to integrate it, such as the varied techniques of interpretation. On the other hand, and from a teleological perspective, a reconsideration of the rationale behind the established relationship between consular and human rights law will lead to a concluding thought on the progressive “humanisation” of international law, asserting the original and true raison d’être of consular law.

3.1 From fragmentation to complexity

The described scenario involves at least three different normative orders and an array of adjudicatory or interpretative bodies, a fertile ground for the fragmentation debate. Nevertheless, in terms of liability for consular rights violations, confluence rather than fragmentation has been the chosen path. The European Union has readily followed the direction taken by the ICJ, starting with the consequences of Article 36 VCCR ’63 violations. The ICJ initially opted for a two-tier system regarding guarantees of non-repetition for Article 36 VCCR ’63 violations: first, the Court suggested the inclusion of individual consular rights in the Miranda Declaration of rights. This has been adopted by EU Directive 2012/13 when spelling consular rights information in the Letter of Rights. Second, the ICJ put forth a police training program on consular rights, which is also included—and extended to judges, prosecutors and judicial staff in general—in Article 9 of EU Directive 2012/13. Finally, and as a means of redress, an effective system of review and reconsideration was requested by the ICJ as an obligation of result, taking into account the impact on the principles of fair trial and the right of defence of the accused.98 Article 8 of EU Directive 2012/13 and Article 12 of EU Directive 2013/48 adopt the same approach and affirm the fundamental right to an effective remedy when the rights of a detainee, whatever their nature, are violated.99

On its part, the European Convention on Human Rights has tended to limit the ECtHR’s ability to prescribe the means of redress. The Court has historically established the responsibility of the State—leaving ample room for its choice of reparation—under the control of the Council of Ministers of the Council of Europe. This approach has been updated through the “pilot judgment” technique, developed to face the increasing number of applications on repeated human rights violation patterns in certain countries. By following this technique, the ECtHR determines the specific measures to be taken by the State in the form of reparation—including measures for prevention and guarantees of non-repetition—which should apply to similar cases in the future. This has been considered a quasi-legislative tool and a dual-nature review between legal cassation and constitutional redress.100 It has not been used by the ECtHR in relation to VCCR violations, whereas the LaGrand/Avena scheme could be seen as a prospective ICJ essay of pilot judgment designed to face the United States pattern of repeated violations of Article 36 VCCR ’63.

From this perspective, general international law and human rights adjudication bodies have come to address the matter in similar terms, too, as far as remedies for a violation are concerned. In the most recent case, Jadhav, the ICJ asserted for the very first time the interpretative role of Article 14 ICCPR when defining remedies for the violation, but not as part of the violation itself.101 The remedial approach cannot but confirm the understanding of consular assistance rights as something more than mere conventional rights, yet it falls short of legal reasoning on the nature of the violated rights themselves.

Turning our attention to the interaction among the substantive rules involved, we may argue that there is a non-reciprocal, non-homogeneous relationship among these three systems of law: general non-specialised International Law rules and concepts move more easily into European Law and Human Rights Law—which are paradoxically called “self-contained regimes” in ILC terminology102—than the other way round. EU rules regularly introduce both references to the VCCR ’63 and human rights law in the preambles and preparatory documents of the specific rules on citizenship or common procedural guarantees. ECtHR case law considers international law rules as part of the ratio decidendi, in opposition to ICJ jurisprudence, which rejects human rights rules considerations for the aforementioned cases as a base for substantive analysis, leaving the human rights consequential approach merely to the decision on remedies. The ICJ, in its 2019 decision on Jadhav, does not seem to have used the opportunity to take into account the substantive and evolutionary cross-references between the different international law regimes concerned.103

A “smart integration” of human rights law with general international law and European law is nevertheless undergoing consideration. The term “smart human rights integration”104 has been previously used in the context of the proliferation of human rights standards, instruments, institutions and remedies. In the same vein, different interpretative pathways could be explored to achieve normative integration between the fields of law analysed in our study. Nevertheless, EU law and ECtHR case law must be addressed differently, as the former can be treated in terms of both regional international law and State practice, whereas the latter concerns a third adjudicatory activity. The legal mechanisms through which they could exert an influence on the interpretation of the VCCR in future cases are, therefore, at variance. The ICJ has not taken into account these developments for the statement of a VCCR ’63 violation until today.

For ECtHR case law, the most direct interpretative means is at hand. It constitutes a set of “judicial decisions”, and the ICJ can always resort to it “as subsidiary means for the determination of rules of law”, according to Article 38.1 (d) of its own Statute. ECtHR case law should not to be excluded as a term of reference for this. Unfortunately, the ICJ has done so in its Jadhav case decision. Furthermore, the ICJ has already stated that, when it is called to apply a regional instrument for the protection of human rights or the ICCPR, it has to “ascribe great weight to the interpretation adopted by the independent body that was established specifically to supervise the application of that treaty”, although the Court “is in no way obliged . . . to model its own interpretation” on it.105 It may arrive the day for such a case.

As for the European Union primary and secondary legislation, several options can be advanced to define a contemporary human rights-related interpretation of Article 36.1 VCCR ’63 for future cases. The ILC—in the context of the fragmentation report—referred in 2006 to a “systemic integration”, based on Article 31.3 (c) of the Vienna Convention on the Law of Treaties (VCLT), as a way to establish “meaningful relationships” to determine whether general and specialised rules “could be applied in a mutually supportive way or whether one rule or principle should have definite priority over the other.” It comprises both conventional and customary law, exclusively limited to the law applicable between the parties.106 In this sense, the Court has expressly founded its ‘effective review and reconsideration’ approach on the effects of Article 36 VCCR ’63 on Article 14 ICCPR rights,107 although not all authors concur in the establishment of this conexion (Villegas Delgado, 2020, p. 42-43). In the same vein, another form of contextual interpretation—foreseen in Article 31.3 (b) VCLT and currently under study by the ILC—takes into account “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”

The ILC also refers to the “conduct by one or more parties in the application of the treaty, after its conclusion”, as a supplementary means under Article 32 VCLT. Outside the scope of VCLT interpretative avenues, ICJ jurisprudence has referred to two other integrative frameworks in order to reconcile the rules of international law. First, the ICJ stated in the Namibia case that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation’, which is considered to be a ‘principle of harmonization.”108 Additionally, the ICJ already has turned to the evolutionary interpretation of international law in the past, without a reference to other extraneous rules of international law, in order to explore the very evolution of the terms and circumstances in which a treaty is applied (Helmersen, 2013).109

With respect to the systemic interpretation method (Article 31.3 (c) VCLT), the acceptance of EUMS extended consular assistance by the receiving State, based on EU mixed agreements or renegotiated EUMS consular agreements with that State that include extended consular assistance, will allow for the consideration of those bilateral treaties as ‘international law applicable between the parties’ in the sense given by VCLT interpretation rules. Nevertheless, according to the ILC’s current approach in its Conclusion 4, which calls for the practice of (all) State parties to the specific convention, i.e. the VCCR, these treaties should better be invoked as “subsequent practice” in the application of the treaty under Article 32 VCLT’s supplementary means of interpretation110 in order “to confirm the meaning resulting from the application of Article 31.”

A cautionary advice is yet to be provided. In Jadhav, the ICJ has been extremely restrictive when interpreting the 2008 bilateral agreement between India and Pakistan on consular access. It did not consider the bilateral convention a subsequent agreement or practice between the two States or, as Pakistan suggested, an agreement to modify a multilateral treaty between certain of the parties only (Article 41 VCLT ’69). Moreover, the ICJ avoided, on the basis of Article 73 VCCR ’63, to restrain the scope of consular assistance in cases of arrest or detention on political or security grounds, as the bilateral agreement was not “supplementing or extending or amplifying” the rights granted by the VCCR ’63.111 It is clear that EU law on consular rights is not restrictive; rather, it confirms VCCR ’63 rights, underlines their human right dimension and establishes the obligation to grant judicial means of redress for failure to comply with those rights. In that sense, the ICJ should not find obstacles to expand its present interpretation of Article 36 VCCR ’63 from a normative perspective for future cases.

EU rules on consular assistance as procedural guarantees will be of a more restricted interpretative scope. They will not qualify as “international law applicable in the relations between the parties” when the sending and the receiving State are non-EUMS. They will only qualify when both States are indeed EUMS. However, they could also be applicable when the receiving State is a European Union member, as Article 36.2 VCCR foresees that “The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State.” The law of the receiving State would comprise EU law, since it must be considered “domestic law” in EUMS.

This very idea—EU law as domestic law of the receiving State—is to be extended to all primary EU law on consular rights, as established in the CFREU, comprising both extended consular assistance and consular assistance as a guarantee of a fair trial: treaty rules having a direct effect and being incorporated to the domestic legal order. Consequently, all EU norms should qualify for “practice”, as defined by the ILC’s fifth conclusion on “subsequent practice in relation to the interpretation of treaties.”112

Finally, and away from the realm of VCLT interpretation methods, we could also turn towards the principle of evolutionary interpretation. Although the parties to the convention did not apparently mean to open the concept of consular assistance rights to future developments, there is indeed a certain evolution in EU’s approach: the intertwining of consular rights with a new version of procedural rights rekindles the purpose, rather than the concept, of consular assistance rights.

As regards the principle of harmonisation, Judge Robinson highlighted this method in Jadhav to take advantage of “the grand development of international law following the Second World War” and to connect Article 36 VCCR ’63 with Article 14 ICCPR, although the Court did not elaborate on it.113 In this regard, EU legislation comes to reinforce other relevant universal documents, such as the 1990 Migrant Workers’ Rights Convention or, with a more precautionary approach, the statements relevant to our subject matter that are included in HRC GC 35 and GC 36. Yet the legal nature of these last two documents has been questioned by scholars. As Buergenthal (2006) writes:

While one can debate the question of the nature of this law and whether or not is law at all, the fact remains that the normative findings of the treaty bodies have legal significance, as evidenced by references to them in international and domestic judicial decisions (pp. 783-789).

On its part, and although GC 35 and GC 36 were passed almost without critique, the United States expressed opposition to draft GC 36—which renewed Article 6 ICCPR interpretation—rejecting this “contextual and systemic interpretation”. The United States also stated that the HRC’s “importing requirements from other human rights treaties” was “inconsistent with a proper interpretative analysis under VCLT Articles 31 and 32, ignores the express terms of the ICCPR, and fails to consider that not all ICCPR States Parties have ratified those other treaties or otherwise consented to such obligations.”114 The ILC Draft Conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” devotes Conclusion 13 to the “Pronouncements of expert treaty bodies”, confining their role to the one granted by the rules of the treaty and stating that silence by a party “should not be presumed to constitute subsequent practice under Article 31, paragraph 3 (b), accepting an interpretation of a treaty as expressed in a pronouncement of an expert treaty body.”115 The fact remains that the ICJ, in its 2012 decision on the Ahmadou Sadio Diallo case, has granted a core interpretative role to these documents when the concerned rights are at stake. When human rights treaties are to be applied, the ICJ should carry out a carefully reasoned analysis if it chooses to depart from the interpretation given by the human right treaty body.

Furthermore, these normative efforts could be seen as expressing an opinio juris, albeit in statu nascendi, which triggers a new universal customary rule regarding individual consular rights from a human rights law perspective. The fact that EU law and ECtHR case law take the same direction might be seen as a catalyst, which could eventually be considered as regional customary “international law applicable in the relations between the parties” (Article 31.1.3 VCLT) with regard to the concept and the very purpose of consular assistance rights. Some scholars have underlined, however, that such a trend is not a methodologically ordered approach but rather a more complex view on judicial interpretation, which runs the risk of encroaching on “judicial creativity” (French, 2006; Helmersen, 2013).

Allegations of violation of Article 14 ICCPR in Jadhav could have prompted this contextual, systemic and harmonising interpretation, although it could also have stirred up the debate on consensual jurisdiction limits and applicable law. As a matter of fact, systemic interpretation has already provoked an indirect debate among ICJ judges regarding the problems arising from the application of international law for which a jurisdiction has not been expressly accepted, as stated by Judge Buergenthal in his separate opinion of 6 November 2003, Judgment on the Oil Platforms case (Islamic Republic of Iran v. United States of America) (ICJ, 1992). A similar position was held by Judge Higgins, whereas opposite views were held by Judges Koroma and Simma.116 The ICJ stated it clearly in Jadhav since the very beginning: it was not a case of violation of the ICCPR, although when it came to remedies, the ICCPR was the key element to define “effectiveness”.

That said, our last key issue is built around ICJ case law, including the most recent decision on Jadhav, to analyse how an alternative interpretation to the contextual, evolutionary or harmonizing reading could be achieved, also taking into account European developments. To explore and arrive at an answer, we must now turn to the rationale for the construction of the connection between individual consular rights and human rights and examine to what extent it affects the proper understanding of the general international law regime of consular law and the consequential problems which then arise.

3.2 From state-centred to human-centred interpretation of law

The final and most difficult question to answer is defining why general international law —and the ICJ as its interpreter—should take into account self-contained regimes such as human rights law and/or European law when interpreting Article 36.1 VCCR ’63. To resolve this question, the logic for the intertwining of individual consular and human rights should be explored first, and, consequently, that logic should be exported into the VCCR’s own rationale. We are therefore turning to the most classical teleological interpretation means, as set in Article 31.1 VCLT.

In seeking the logic of the human rights approach, ICJ and ECtHR cases and the terms of IACHR consultative opinion established a presumption whereby the impact of individual consular rights violations was dependent on the gravity of the cases: irreparable prejudice (death penalty cases)117 or gross violations (like the ECtHR judgment in El-Masri) suggest the idea that respect for any guarantee and for any of the detainee’s rights was of utmost importance and that this could have changed the course of the proceedings in those cases. Yet, after considering Lebois v. Bulgaria, gravity does not seem to be the ECtHR’s main reason for establishing a link between consular rights and protected human rights: neither the detention period nor the penalty risk was long or extremely severe. In this particular case, the special situation of being a foreign national, not having translation services available nor specific indication on how the communication system inside the detention facility worked, coupled with the difficulty to get a phone card due to lack of money, constituted special circumstances for the Court and made the situation a risky one. A “potential violation” of the right to family life (in the case of a detention, the right to contact the family) was declared obiter dictum dependent on consular rights, despite procedural barriers preventing the Court to enter into the merits.

Besides, European Union legislation on consular assistance derives from the CFREU as a human rights normative expression and always involves a system of judicial review for violations, irrespective of the gravity of the case, when a potential violation of consular assistance rights takes place. At the same time, the progressive recollection of ECtHR cases has drawn a landscape where individual consular rights apparently guarantee an array of plural human rights: the right not to be arbitrarily deprived of one’s life, the prohibition of torture, the right to liberty and security, the right to a fair trial, and the right to respect for private and family life. Ultimately, when a foreigner is concerned, the burden on the State to guarantee certain rights is increased. This has already been highlighted by the IACHR in 1999:

The presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests. Absent those countervailing measures, widely recognized in various stages of the proceeding, one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages (IACtHR, OC-16/99, at para 119).118

With respect to “due process” or other rights, consular rights guarantee that foreign nationals will not be subjected to unacknowledged detention, that they will understand the process and the rest of their rights, that they will have access to contact and be able to alert their family, that they will at least have access to the knowledge of the system of redress available in case of violation of their rights (either fundamental or not) and so on. The guarantee for respect and preservation of those rights lies in having the opportunity to be assisted by consular authorities from the very moment of detention or arrest. Consular information and communication rights must be respected for the sake of preservation of a broad range of human rights, a condition for equal treatment in a material sense. Hence, individual consular rights appear as a guarantee and a consequence of the non-discrimination provision present in all human rights instruments.119

We should now turn to the realm of general international law and the VCCR’s rationale to fit the preceding understanding. It is argued that consular assistance rights are individual rights granted by international norms, which confer a right to the foreign national’s State to demand international responsibility for their violation in the receiving State. Both dimensions of consular rights—State or individual rights; rights linked to general international law or human rights law—are rooted in the basic idea that Law is a tool for regulating human relations. This primary idea is also present at an international level.

For some time, the State has been seen as the exclusive, privileged international law subject, whereas in fact it is a mediator agent between individuals across borders, and not only for fundamental rights concerns. This has been clearly stated in international law by different scholarly traditions, from those writing about individual rights under the common guarantee of “civilized States” (Fiore, 1890, pp. 15-16, 164-177) in the last decades of the nineteenth century, to those at the dawn of the twentieth century already reflecting on a Common Law for humankind (Pillet, 1894, 1889120), long before Wilfred Jenks (1958) published his well-known The Common Law of Mankind. James Brown Scott (1930) wrote that:

[t]he thesis which the present paper maintains, and will endeavour to establish, is that the individual inevitably is the primary unit of an international community; that the state is only a secondary and intermediate unit’ and that ‘the individual is the unit of law, and that the law of international community is but the generalized law of the individual (p. 15).

Along with Jenks (1958), Georges Scelle (1932), Nicolas Politis (1925) and Phillip C Jessup (1956) are but notable representatives of this approach, each of them with a different perspective but a common sensibility towards the role of the individual in international law. More recently, Emmanuel Roukounas e Hague Academy of International Law (2003), Theodor Meron (2006), Richard Falk (1993), Umberto Leanza (1997) and Antonio Augusto Cançado Trindade (2005, 2011), among others, have also proposed their views on the matter amid a rising movement for a new global law or constitutionalism approach to international law (Cebada Romero, 2013; Cottier & Hertig Randall, 2003; Domingo, 2011; Peters, 2006; Simma, 1994; Teubner, 1997; Von Bogdandy, 2006; Walter, 2007; Ziccardi Capaldo, 2008). This scholarly approach is today confirmed mainly, but not exclusively, by the humanisation process through normativity and international State control for the protection of human rights, as stated by Judge Robinson in his Declaration in Jadhav.121

Nevertheless, even when retaining a more traditionalist approach to international law as inter-state law, the rights discussed in this paper were apparently already part of the consular functions in 1846 with a view to protect the individual: “[L]orsque les tribunaux du pays poursuivent un compatriote du consul, il peut se présenter en justice, non comme protecteur, mais comme conseil de l’inculpé, surtout si celui-ci était exposé à perdre la vie, la liberté ou ses propriétés” (De Mensch, 1846, p. 58).122 Further, the historical origin of consular functions and law, according to the Report of the ILC Special Rapporteur in 1957, was private trade, and the role of consuls was to settle disputes among merchants and protect nationals and their interests abroad.123 The ILC’s commentaries regarding draft Article 5 on consular functions, where it stated a general clause and a list of functions by way of example, stressed that consular functions are granted for “safeguarding the interests of the sending State and of its nationals”, both at the same level and with the same degree of priority. The commentary also underscored the relevance of temporary protective functions, “where the person concerned is prevented from looking after his interests by serious illness or where he is detained or imprisoned”, and the extension of this protection in time for “safeguarding the interests of minors and persons lacking full capacity.”124

Even before 1957, prior to the confirmation of the present reading of Article 36 VCCR ’63, it was clearly established that consular law was a function not only for the intercourse among States but more specifically for a human-centred service, to protect and guarantee individuals in distress situations in which inequalities or vulnerabilities were at stake. It should not be hard to undertake an approach to the VCCR’s interpretation and to rights defined in Article 36.1 (b) by resorting to the very object and purpose for which these rules were granted, as mandated by Article 31 VCLT ’69. Currently, and taking into account that detention, custody and other related situations abroad are governed by international applicable standards for the protection of human rights, the ICJ should not be impeded to retain the connection between individual consular rights and human rights in a context of detention and judicial proceedings based on a multiple choice of interpretative pathways, starting with the most common “object and purpose” means, as consular law is—and has always been—a human-oriented set of rules, specifically created to serve individuals abroad. This should not be considered a “droit de l’hommisme” when addressing the case of individual consular rights, mainly because of the consular law object and purpose described above, but also because we are just proposing to reinforce the commitment to respect human rights through non-dedicated channels; namely, by resorting to traditional State diplomatic protection for individual rights violations when human rights mechanisms are non-existent, inapplicable or insufficient, without prejudice to the nature of the alleged rights nature—be them human rights or merely conventional rights—or the purpose and functions of the tribunal or institution concerned, as long as there is an interpretative means to force the pace in this intertwining process.

Conclusions

As a final reflection, the door is still open for the ultimate problem: the State’s willingness to comply with its international obligations when they affect individuals—either in terms of plain conventional rights or related to fundamental/human rights. The ICJ has stressed it again in Jadhav: nullity of domestic judicial decisions is not the international sanction for violation of the VCCR ’63. It is up to the State concerned to provide means of redress under the form of “effective review and reconsideration”. Fortunately, the ICJ has finally included in Jadhav 2019 Article 14 ICCPR standards in the threshold to comply with this review and reconsideration path, initiated in Lagrand and Avena. Nullity would neither be the consequence in most international human rights enforcement regimes or in the EU regime for procedural guarantees. Effectiveness and national margin of appreciation to define remedies for such a violation is the option, too, in the EU construction of consular rights as procedural guarantees.125 Nullity and re-trial are essentially dependent on domestic law compliance, including compliance with international judicial decisions themselves, as international law mechanisms are always subsidiary and sometimes indirect ways (like diplomatic protection) to guarantee individual legal rights.

When propositions for a world court of human rights have been put forth,126 probably causing a further fragmentation among a growing number of judicial institutions, attention should be given both to a) the role and challenges of international adjudication bodies when applying these human-oriented rules and b) the role and challenges of domestic law for granting full respect for international awards, either in the field of human rights or in the field of general international law.

As it has been proved in the case of Medellín, one of the fifty persons concerned in the Avena ICJ judgment, the United States had no easy way out of its infringement of the primary rules on consular assistance rights and its compliance with the ICJ’s decision.127 In another case deriving from Avena, Judge Tom Price wrote that “[l]amentably, the applicant [Mr Leal] finds himself in possession of an apparent right under international law without an actual remedy under domestic law.” According to Steve Charnovitz (2012),

such a disconnection in the topology of rights and remedies should not exist in any country’s law, but especially not in a country like the United States, whose Constitution and Supremacy Clause make clear that ‘all treaties made . . . shall be the supreme Law of the Land’.128 (pp. 572-575).

Unfortunately, time has shown that “where there is a legal right, there is also a legal remedy” (ubi jus ibi remedium) is not an ever-lasting truth.129

A similar problem arises in European countries regarding compliance with ECtHR decisions. After a long period when judgments were considered exclusively declaratory and execution was only under the supervision of the Council of Ministers, the Court has now shown interest and has grown more concerned about this matter (Larsen, 2013; Sicilianos, 2014).130 It is especially difficult for States to comply in those cases where the Convention violation stems from judicial proceedings whose decisions were final. In some cases—for instance, the Spanish Judiciary Act reformation in 2015—a cause of action (“procedimiento de revision”, or review procedure) has been introduced based on ECtHR judgments where a final domestic judicial decision was adopted in violation of the rights guaranteed by the ECHR.131 Although an important step, unfortunately it has not resolved other potential cases. It would not be possible to ask for such a review in Spain when a VCCR ’63 individual rights violation is declared by an ICJ judgment in the same vein as in the LaGrand, Avena or Jadhav cases. Paradoxically, annulment of the judgment and re-trial could be claimed before domestic Spanish courts for a violation of consular rights as minimum procedural guarantee arising out of Directive 2012/13 and/or Directive 2013/49. Nevertheless, the effectiveness of international adjudication decisions in domestic legal orders is another topic that is worth reflecting on.

Law, be it international or domestic, is an instrument for peaceful human relations. And, as such, it is composed of a set of techniques—primary and secondary rules—to serve, preserve, guarantee, and realise individual and collective rights, whether fundamental or not. In international law, States act as fundamental subjects, rulers, keepers, and settlers of rights, of human beings, the pillars of Law. Classical and contemporary scholars have already acknowledged this. But international tribunals must follow current trends to reaffirm the undisputed evolution of International Law towards placing the individual at the heart of Law, as it already is the case with Consular, European and Human Rights Law.

Acknowledgment

I would like to acknowledge and thank Professor Conall Mallory (Newcastle University) for reading and commenting on a previous version of this paper; I am greatly indebted for his valuable insights. I am particularly grateful for the assistance given by Luigi Celentano when writing this article; his contribution has been of the utmost importance. Recoginition is also due to Prof. Correa Da Silva, who suggested a submission to this outstanding journal, along with the reviewers contribution, and, finally, but not least, the editing work carried out with the assistance of the Journal editorial board.

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