Intertwining Consular and Human Rights Law: A European Contribution to the Humanisation of International Law

11 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 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 1 This research was supported by the Spanish Ministry of Economy and Competitiveness, as part of the project “Desafíos del Proceso de Construcción de un Espacio Europeo de Derechos Fundamentales”, (2018-2021, DER2017-83779-P), R+D Projects, Plan Estatal 2013-2016 de Excelencia, directed by Prof.ª Dra. Ana Carmona Contreras. 2 Doctora em Derecho pela Universidad de Sevilla; Profesora Titular del Departamento de Derecho Internacional Público y Relaciones Internacionales de Universidad de Sevilla; Calle San Fernando, 4, 41004 Sevilla, España; http://orcid.org/0000- 0002-6448-6594; [email protected] 12 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 3 Article 36 Vienna Convention on Consular Relations 1963, 596 UNTS 261. 4 France pleaded the foreign national’s right to consular assistance in the following terms: ‘[D’]aprés le droit international commun, il y a une obligation de donner à la personne poursuivie, si elle le demande, l’occasion de communiquer avec son Consul, et qu’il y a aussi une obligation internationale de donner des informations aux autorités nationales de la personne poursuivie, si elles les demandent’. The arbitrator—the Norwegian FVN Beichmann—concluded that there was no such a thing as a rule of law: ‘[L’]Arbitre n’estime pas qu’elle presente le caractère d’une règle de droit’, ‘Affaire Chevreau (France contre Royaume-Uni)’ (9 June 1931) 2 Recueil des Sentences Arbitrales 1123–1124. 5 There are several compilations by well-known nineteenth-century scholars. See, for instance, Bluntschli (1881) in which he dedicates Articles 244–275 to consular rules; Field (1876) at 58–77, where Articles 159–185 are devoted to consular norms; Fiore (1890), specifically Articles 475–529. 6 The Institut de Droit International in the sessions in Lausanne (1888), Hamburg (1891), Geneva (1892) and Venice (1896) with Engelhardt as special rapporteur: (1888–1889) 10 Annuaire de l’Institut de Droit International 272; (1891–1892) 11 Annuaire de l’Institut de Droit International 348; (1892–1894) 12 Annuaire de l’Institut de Droit International 275; (1896) 15 Annuaire de l’Institut de Droit International 272. In 1926, the topic was again addressed and it was concluded that no relevant transformations had occurred, see (1927) 33 Annuaire de l’Institut de Droit International 417. The American Institute of International Law addressed the topic in 1925, adopting a draft of eleven Articles (Project No. 23) sent to the American States through the Pan American Union. See ‘American Institute of International Law: Texts of Projects. Project No. 23 “Consuls”’, in ‘Collaboration of the American Institute of International Law with the Pan American Union’, supplement, (October 1926) 20 American Journal of International Law 300 pp. 356–357, https://doi.org/10.2307/2212868. The International Law Association analysed it in 1926 and 1928, with reports from Strupp and Wehr: Report of the Thirty- Fourth Conference (Vienna 1926) (1927) p. 433; Report of the Thirty-Fifth Conference, Warsaw (Warsaw 1928) (1929) pp. 356-375. Finally, the Harvard Law School also studied the Consular Relations regime: Wright prepared a 34-Articles draft project, ‘The Legal Position and Functions of Consuls’ (1932). 7 See ‘Convention relative aux agents consulaires’ in CLV (1934–35) Société de Nations, Recueil des Traités 289. At a universal level, it was in 1926 when the topic was included in the Committee of Experts for the Progressive Codification of International agenda as one of the seven topics ripe for codification, although no convention would be prepared in the end. 13 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 8 See Yearbook of the International Law Commission 1957, v. I (1957) p. 81 (Doc. A/CN 4/108); Yearbook of the International Law Commission 1960, v. II (1960) p. 2 (Doc A/CN 4/131); Yearbook of the International Law Commission 1961, v. II (1961) pp. 57, 134 (Doc A/CN 4/137). The General Assembly—Res 1685 (XVI)—convened an international conference in Vienna, beginning in March 1963 and ending on 22 April 1963. On 24 April, the VCCR ’63 was adopted by unanimity. 9 See also Vienna Convention on Consular Relations, Doc Of A/Conf 25/16, Add 1, vol II, pp. 179-192. 10 This was proposed by Czechoslovakia and the Ukrainian Soviet Socialist Republic, Doc A/CONF 25/L 40, Official Records of the United Nations Conference on Consular Relations, v. II. 11 This was the position of Algeria, Ceylon, Congo (Brazzaville), Congo (Leopoldville), Guinea, India, Indonesia, Iran, Lebanon, Liberia, Mali, Nigeria, Pakistan, Republic de Korea, Sierra Leone, Tunisia and Upper Volta, Doc A/CONF 25/L 41 y Add 1, Official Records of the United Nations Conference on Consular Relations, v. II. 12 This was supported by Canada, Ceylon, Congo (Brazzaville), Congo (Leopoldville), Ecuador, Malaysia, Guinea, India, Indonesia, Japan, Liberia, Mali, Pakistan, Philippines, Republic de Korea, Sierra Leone, Syria, Thailand, United Arab Republic and Venezuela, Doc A/CONF 25/L 49, Official Records of the United Nations Conference on Consular Relations, v. II. 13 Doc A/CONF 25/L 50, Official Records of the United Nations Conference on Consular Relations, v. II. Discussions during the final day, prior to vote, in Doc A/CONF 25/SR 20, twentieth meeting of the Plenary, Official Records of the United Nations Conference on Consular Relations, v. I, pp. 81-87. 14 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 14 See Code of Federal Regulations, Title 28, Chapter I, Part 50, Section 50.5, Notification of Consular Officers upon the arrest of foreign nationals, available from: https://www.law.cornell.edu/cfr/text/28/50.5.https://www.law.cornell.edu/ cfr/text/28/50.5 15 The IACHR advanced the issue in OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law, IACtHR Series A 16 (1999) at paras 126–127, but it eventually did not address the question in substance. For an analysis of such an obligation in the context of abolitionism, see Mallory (2016, p. 51). 16 Vienna Convention on Consular Relations (Paraguay v. United States of America) ICJ Reports 1998. Proceedings were instituted on 3 April 1998. Paraguay discontinued the proceedings on 2 November 1998, after Mr Breard’s execution. The United States concurred, and the Court removed this case from its list on 10 November 1998. 17 LaGrand (Germany v. United States of America) ICJ Reports 2001. Germany instituted proceedings on 2 March 1999, and the Court ruled on 27 June 2001. 18 Avena and Other Mexican Nationals (Mexico v. United States of America) ICJ Reports 2004. Mexico instituted proceedings on 9 January 2003, and the Court ruled on 31 March 2004. In 2015, Mexico filed an application for interpretation concerning implementation of the 2004 ICJ decision and a new request for provisional measures on behalf of certain nationals with death penalty dates already fixed. A new order demanding a stay of execution was delivered by the ICC. See Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional measures, ICC, Order of 16 July 2008 (ICJ, 2003). 19 Jadhav (India v. Pakistan), ICJ Reports 2019. India instituted proceedings on 8 May 2017; the Court ordered provisional measures on 18 May 2017 (Order, ICJ Reports 2017) and delivered its judgment on 17 July 2019 (ICJ, 2017). The very first comments on the application and the demand on provisional measures are already published (Dubey, 2017; Pratap, 2017; Wasilewski & Żenkiewicz, 2017). 20 In Jadhav pleadings, India’s memorial, submitted on 13 September 2017, mentions the term ‘human rights’ in at least 92 occasions. Pakistan’s counter-memorial, submitted on 17 December 2017, includes the expression ‘human rights’ in 12 occasions. India’s reply, dated 17 April 2018, includes 11 mentions of this very term; and Pakistan’s rejoinder, submitted on 17 July 2018, none. Public hearings on the merits were held from 18 to 21 February 2019. 15 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 21 Res 40/144, 13 December 1985, A/RES/40/144, Article 10, passed without a vote. 22 Res 43/173, 9 December 1988, A/RES/43/173. 23 Res 45/158, 18 December 1990, A/45/158, passed without a vote. 24 Special Rapporteur on the Human Rights of Migrants, Report on Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including Right to Development, 25 February 2008, A/HRC/7/12, para 44, n 34, and para 71. 25 Human Rights Committee, General Comment No 35: Article 9 (Liberty and security of person), 16 December 2014, CCPR/C/GC/35, at para 58. Reference is made to the 1988 UNGA Body of Principles but not to the VCCR ’63. 26 Human Rights Committee, General Comment No 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, 30 October 2018, CCPR/C/GC/36, at para 42 referring explicitly to Article 36 VCCR ’63 and citing IACtHR OC-16/99 at n 197; and ibid. at para 57, n 238 referring to GC 35, para 58. 16 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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. 17 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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, 27 IACtHR, OC-16/99, at para 1. 28 Ibid. at paras 4.4, 4.10, 4.12. 29 Ibid. opinion points 1, 2, 3, 5 & 6, adopted by unanimity; Acosta Calderón, IACtHR Series C 129 (2005) at para 125; Bueno Alves, IACtHR Series C 164 (2007), at para 116; Chaparro Álvarez and Lapo Íñiguez, IACtHR Series C 170 (2007) at para 164; Vélez Loor, IACtHR Series C 218 (2010) at para 157. 18 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 30 IACtHR, OC-16/99, at para 119 and later in Vélez Loor, IACtHR Series C 218 (2010) at para 152; and Nadege Dorzema and Others, IACtHR Series C 251 (2012) at para 165. 31 In later case law, the Court affirmed the same principles even outside capital cases, see Tibi, IACtHR Series C 114 (2004) at paras 195–196; Acosta Calderón, IACtHR Series C 129 (2005) at para 125. 32 Res 54/166, 24 February 2000, A/RES/54/166. Reference to the IACtHR OC-16/99 is again included in resolution Res 55/92, 26 February 2001, A/RES/55/92. 33 Application No 46221/99, Merits and Just Satisfaction, 12 May 2005 (Grand Chamber), at paras 60, 166 (European Court of Human Rights, 2005). 19 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 34 LaGrand, at para 77, confirmed again in Jadhav, at para 116. Scholars who had previously written on this matter did not reach the same conclusions on the individual rights character of Article 36.1 (b) VCCR ’63. See Maresca (1974, pp. 227-228). 35 Ibid. 492 at para 74; Avena, 43 at para 61. 36 LaGrand, at para 78. 37 Ibid. 513 at para 125, and 571, at para 128 (7); Jadhav, 37 at para 139. 38 Avena, 60 at para 122; Jadhav, 38 at para 143, although a different perspective is provided by Judge Cançado Trindade in his Separate Opinion, paras 85–93, who would have preferred to ‘bar the execution of the death penalty against Mr. K. S. Jadhav, and call for redress for the violation of Article 36(1) of the VCCR’ (at para 93). 39 Ibid. at para 139; Jadhav, at para 137. 40 LaGrand, at para 123; Avena, at para 140. 26 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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, 63 Treaty on European Union [1992] OJ C 191/1, Article 8C; currently, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C 202/1, Article 9. 64 Otherwise called ‘protection by affinity’, see Crespo Navarro (2017, p. 119). 65 The Legal Position and Functions of Consuls, at 381–3, http://doi.org/10.2307/2213739. 66 See CARE Project Report, Consular and Diplomatic Protection Legal Framework in the EU Member States, December 2010, although it is non-exhaustive and has not been updated since then. 27 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 67 Decision 95/553/EC of the Representatives of the Governments of the Member States meeting within the Council regarding the protection for citizens of the European Union by diplomatic and consular representations [1995] OJ L314. 68 Council of the European Union, 2 June 2006, Doc 10109/06. 69 European Commission, Green Paper on Diplomatic and consular protection of Union citizens in third countries, 28 November 2006, COM (2006) 712. 70 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Effective consular protection in third countries: the contribution of the European Union. Action Plan 2007–09, 5 December 2007, COM/2007/767. 71 CARE Project Report, at 22. The report describes those cases (Italy and Portugal) in which bilateral treaties include a clause on ‘extended’ consular assistance for EU citizens, noting the current scarce practice of prior notification at a national level. 72 Council Decision 2016/123/EU on behalf of the European Union, on the signing and provisional application of the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States and the Republic of Kazakhstan, [2016] OJ L29/1, Article 239. Council Decision 2017/434/EU on behalf of the Union, on the signing and provisional application of the Cooperation Agreement on Partnership and Development between the European Union and its Member States and the Islamic Republic of Afghanistan, [2017] OJ L67/1, Article 29. 28 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 73 Communication from the Commission to the European Parliament and the Council on Consular protection for EU citizens in third countries: State of play and way forward, 23 March 2011, COM/2011/149. In this vein, a similar provision is included in the draft agreement with Malaysia, still under consideration: Joint Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, and provisional application of the Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and the Government of Malaysia, of the other part, JOIN/2018/20 final, 3 July 2018. 74 CARE Project Report, at 29–30 and the literature cited therein on the direct-effect disposition. 75 Council Directive 2015/637/EU on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC, [2015] OJ L106/1. 76 Spain, Greece and Austria adopted domestic transposition rules later than established: in June 2018, October 2018, and May 2019, respectively. 77 The CJEU has already been confronted with this question in relation to Article 14 (3) TEU and Article 39.2 CFREU concerning the right of Union citizens to vote in elections to the European Parliament. See C-650/13 Delvigne 6 October 2015 (Grand Chamber) at para 648 (Court of Justice of the European Union [CJEU], 2015). 29 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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). 78 CARE Project Report, at 668–672. 79 European Commission, 19 February 2003, COM/2003/75 (Commission of the European Communities, 2003). 30 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 80 European Commission, 28 April 2004, COM/2004/328. 81 Several options were discussed, as can be seen in ‘Commission staff working document. Accompanying the Proposal for a Council Framework Decision on the right to interpretation and to translation in criminal proceedings. Summary of the impact assessment’, 8 July 2009, SEC/2009/0916 (Commission of the European Communities, 2004). 82 A first Proposal for a Council Framework Decision on the right to interpretation and to translation in criminal proceedings, 8 July 2009, COM/2009/0338, was soon abandoned because of the entry into force of the Treaty of Lisbon. See Communication from the Commission to the European Parliament and the Council. Consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures, 2 December 2009, COM/2009/0665. 83 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1. 84 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, [2012] OJ L142/1; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, [2013] OJ L294/1. The rest of the set of directives is composed of Directive 2010/64/EU, on the right to interpretation and translation in criminal proceedings [2016] OJ L 280/1; Directive (EU) 2016/343, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L 65/1; Directive (EU) 2016/800, on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L 132/1; Directive (EU) 2016/1919, on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L 297/1. 85 See Article 36 of the 1963 Vienna Convention on Consular Relations at para 2. 31 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 86 Directive 2012/13, transposition period ended on 2 June 2014. All Member States except Belgium needed and adopted specific measures. The United Kingdom and Ireland notified their wish to take part in the adoption and application of this Directive. Denmark opted out and is not bound by it. 87 Directive 2013/48, transposition period ended on 27 November 2016. All Member States affected have already adopted timely transposition measures. The United Kingdom, Ireland and Denmark have opted out and are not bound by it, according to Protocols nos 21 and 22. 88 Directive 2012/13, Preamble, at para 14 and Directive 2013/48, at para 12. 32 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 89 Remedies under Art. 12 should be domestically sought for the violation of any of the rights ruled by Directive 2013/48, where emphasis is put on the ‘effectiveness’ idea. Although analysing specifically the violation of the right to counsel, see Soo (2016, 2017a, 2017b, 2018). 90 Date of revision, 23 May 2021. 91 Legal questions may arise on the competent jurisdiction for protection of these rights, since they may concern both EU law application and ECHR application, as seen before. Specifically, concerning the European Union’s perspective, see Article 51, on the ‘Field of application’, Article 53, on the ‘Level of Protection’ of the CFREU, and C-399/11 Stefano Melloni v. Ministerio Fiscal 26 February 2013 (Grand Chamber) at para 107, as opposed to Bosphorus Hava Yollari Turizm v. Ireland Application No 45036/98, Merits and Just Satisfaction, 30 June 2005 (Grand Chamber). For the Strasbourg perspective, see Kuhnert (2006); Lock (2010); De Hert and Korenica (2012). 92 Directive 2012/13, Preamble, at para 21 and, in similar terms, Directive 2013/48, Preamble, at para 12. 93 Kim v. Russia, at para 54 (European Court of Human Rights, 2014). 94 See Explanation on Article 47—Right to an effective remedy and to a fair trial [2007] OJ C303/29; Faggiani (2017, p. 88). 33 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 95 When commenting on the draft Article in 1961, the International Law Commission established that “this provision [Article 36.1] applies also to other forms of detention (quarantine, detention in a mental institution).” See Yearbook (1961), pp. 112-113. 96 GC 35, at para 5. 97 Directive 2012/13, Preamble, at para 16 and Directive 2013/48, at Article 2 on the matter of scope. 34 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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. 98 Jadhav, at paras 145–146. 99 Article 13 ECHR, Article 47 CFREU, Article 25 ACHR and Article 9 ICCPR. 100 There is a growing scholarly body of work on this type of judgments. See, among others, Abrisketa Uriarte (2013); Buyse (2009); Garlick (2007); Glas (2016); Haider (2013); Leach, Hardman, and Stephenson (2010); Leach et al. (2010). 35 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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. 101 Jadhav, paras 36 & 37, in relation to para 145. 102 For the three different ways in which the term ‘self-contained regimes’ can be employed, see ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 13 April 2006, A/CN 4/L 682, at paras 123–137. 103 Clearly pointed out by Judge Cançado Trindade, Jadhav: Separate Opinion of Judge Cançado Trindade, paras 97 & 98, and underlined by the number of references to human rights case law in the parties written memorial and oral pleadings. See note 18. 104 This fortunate expression has been coined by Eva Brems (2014). Nevertheless, the author has more recently nuanced this integration will through a careful examination of the pros of fragmentation in human rights law, such as the benefits of specialisation, contextualisation, experimentation and strategic choice opportunities; see Brems (2018). 42 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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 120 For an analysis of the literature of that period, see Petit de Gabriel (2003, pp. 103-110). 121 Jadhav, Declaration of Judge Robinson, para 2. 122 In the same vein, these assistance functions are described in Heyking (1930, pp. 811, 873, 889-909); Žourek (1962, pp. 392- 393). 123 Special Rapporteur, Report on Consular intercourse and immunities by Mr J Zourek, 15 April 1957, Doc A/CN 4/108, (1957) 2 Yearbook of the International Law Commission at 71–82. 43 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 124 ‘Report of the Commission to the General Assembly. Document A/4843: Report of the International Law Commission covering the work of its thirteenth session, 1 May–7 July 1961. Draft Article on Consular Relations, with commentaries 1961’, (1961) 2 Yearbook of the International Law Commission, Article 5 and Commentaries at 95–99. 44 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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). 125 Art. 12 Directive 2013/48 n 96 and analysis upon this rule, prospective models, the EU Member States transposition and a balanced critique referred to in n 101. 126 Mainly a scholarly topic, and probably not rooted into the intergovernmental arena, the first occasion this issue was considered was in Trechsel (2004). Sometime later, and in the occasion of the sixtieth anniversary of the Universal Declaration of Human Rights, a report was commissioned to Professor Martin Scheinin (European University Institute), entitled ‘Towards a World Court of Human Rights Research report within the framework of the Swiss Initiative to commemorate the 60th Anniversary of the Universal Declaration of Human Rights’ and published online on the EUI website. Other pertinent publications have been released and some roundtables have taken place, like the one held at the National Taiwan University in 2012. See also Nowak (2012) and the draft Statute prepared by Nowak, Kozma and Scheinin in 2010 and published online, ‘A World Court of Human Rights: Consolidated Draft Statute and Commentaries’, at https://www.eui.eu/Documents/DepartmentsCentres/Law/Professors/Scheinin/ConsolidatedWorldCourtStatute.pdf. A project webpage has been set up at http://www.worldcourtofhumanrights.net/. A so-called Treaty of Lucknow is the proposed Statute of the World Court of Human Rights. For arguments strongly opposing the idea, see Alston (2014). 127 See, for instance, McGuinness, (2008a). On the difficult domestic question of the presidential powers to implement the ICJ decision and the opposition of the Supreme Court, see McGuinness, (2008b). In relation to judgment compliance in the case, see Rea Falcón (2017, pp. 549-556) and Romano (2017). 128 ‘Ex parte Humberto Leal, 2011 WL 2581917 (Tex. Crim. App. June 27) (Price, J., concurring) (internal footnote omitted)’, as cited in Charnovitz (2012, pp. 572-575). The United States Supreme Court called for an Avena Act to be passed, but time went by and no such law ever came into existence, see Duffy (2010). A proposal for modification of the VCCR by way of bilateral conventions between the United States and third countries limiting individual consular rights has been advanced, but it has not been implemented yet, see Howell (2013). 45 Joaçaba, v. 22, n. 1, p. 11-54, jan./jun. 2021 Intertwining consular and human... 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 129 Blackstone, Commentaries on the Laws of England (1765–1770) vol. III at 23, cited in Marbury v. Madison, 5 U.S. 137, 163 (1803). 130 For an even broader perspective expressing, in our opinion, a very narrow and ‘old-fashioned’ view on ECtHR implementation of judgments, see Komanovics (2017). The situation regarding the Inter-American Court of Human Rights seems quite similar: see Bailliet (2013). 131 Article 5 bis of the Ley Orgánica del Poder Judicial (LOPJ) (LO 6/1985, 1 July, BOE no 157, 2 July 1985), as modified by Article 3 of LO 7/2015, 21 July (BOE no 174, 22 July 2015). For more information, see Sáenz de Santamaría (2014); Queralt Jiménez (2018); Ruiz Miguel (2018). 46 Disponível em: https://portalperiodicos.unoesc.edu.br/espacojuridico Eulalia W. Petit de Gabriel 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. 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