The Right to Information on Consular Assistance in the Framework of the Guarentees of the Due Process of Law, Advisory Opinion OC-16/99 of October 1, 1999 Requested by the United Mexican States, Inter-American Court of Human Rights.
CONCURRING OPINION OF JUDGE A.A. CANÇADO TRINDADE
CONCURRING OPINION OF JUDGE SERGIO GARCIA RAMIREZ
PARTIALLY DISSENTING OPINION OF JUDGE OLIVER JACKMAN
Present:
Antônio A. Cançado Trindade, President;
Máximo Pacheco-Gómez, Vice-President;
Hernán Salgado-Pesantes, Judge;
Oliver Jackman, Judge;
Alirio Abreu-Burelli, Judge;
Sergio García-Ramírez, Judge, and
Carlos Vicente de Roux-Rengifo, Judge.
Also present:
Manuel E. Ventura-Robles, Secretary, and
Renzo Pomi, Deputy Secretary.
THE COURT,
composed as above,
renders the following Advisory Opinion:
I
SUBMISSION OF THE REQUEST
1. By submission of December 9, 1997, the United Mexican States (hereinafter "Mexico" or "the requesting State") sought an advisory opinion of the Inter-American Court of Human Rights (hereinafter "the Inter-American Court," "the Court," or "the Tribunal") on "several treaties concerning the protection of human rights in the American States" (hereinafter "the request"). According to the requesting State, the application concerned 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.
2. Mexico added that the request, made pursuant to Article 64(1) of the American Convention on Human Rights (hereinafter "the American Convention" or "Pact of San José), came about as a result of the bilateral representations that the Government of Mexico had made on behalf of some of its nationals, whom the host State 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.
3. The requesting State asserted that the considerations giving rise to the request were the following: the sending State and the host State were both parties to the Vienna Convention on Consular Relations; both were members of the Organization of American States (hereinafter "the OAS") and had signed the American Declaration of the Rights and Duties of Man (hereinafter "the American Declaration"); and although the host State had not ratified the American Convention, it had ratified the International Covenant on Civil and Political Rights of the United Nations (hereinafter "the UN").
II
DEFINITIONS
5. For purposes of the present Advisory Opinion, the following expressions will have the meaning hereunder assigned to them:
| consular assistance" or "right to information"b) "the right to consular notification" or "right of notification" | The right of the national of the sending State to request that the competent authorities of the host State notify the consular post of the sending State, without delay, of his arrest, imprisonment, custody or detention. | |
|
The right of the consular authorities of the sending State to provide assistance to their nationals (articles 5 and 36(1)(c) of the Vienna Convention on Consular Relations) | |
|
The right of the consular authorities and nationals of the sending State to communicate with each other (articles 5, 36(1)(a) and 36(1)(c) of the Vienna Convention on Consular Relations) | |
| e) "sending State" | The State of which the person who is arrested or committed to prison or to custody pending trial or detained in any other manner is a national (Article 36(1)(b) of the Vienna Convention on Consular Relations) | |
| f) "host State" | The State in which the national of the sending State is arrested or committed to prison or to custody pending trial or is detained in any other manner (Article 36(1)(b) of the Vienna Convention on Consular Relations) | |
III
PROCEEDINGS WITH THE COURT
6. In accordance with Article 62(1) of the Court’s Rules of Procedure (hereinafter "the Rules of Procedure") and on instructions from the President of the Court (hereinafter "the President") to that effect, by note of December 11, 1997, the Secretariat of the Court (hereinafter "the Secretariat") forwarded the text of the request to the member States of the OAS, to the Inter-American Commission on Human Rights (hereinafter "the Inter-American Commission"), to the Permanent Council and, through the OAS Secretariat General, to all the organs named in Chapter VIII of the OAS Charter. On that same date, the Secretariat notified all of the above that the President would set the deadline for submitting written comments or documents relevant to this matter during the Court’s thirty-ninth regular session.
7. After conferring with the other judges on the Court, on February 4, 1998, the President directed that written comments and documents relevant to the request be submitted by no later than April 30, 1998.
8. By order of March 9, 1998, the President convened a public hearing on the request, to be held at the seat of the Court on June 12, 1998, at 10:00 a.m., and instructed the Secretariat to summon to those oral proceedings any and all parties that had submitted written comments to the Court.
9. The Republic of El Salvador (hereinafter "El Salvador") submitted its written comments to the Court on April 29, 1998.
10. The following States filed their written comments with the Court by April 30, 1998: the Dominican Republic, the Republic of Honduras (hereinafter "Honduras") and the Republic of Guatemala (hereinafter "Guatemala").
11. On May 1, 1998, Mexico filed a brief containing "additional considerations, new information and documents relevant to the request."
12. In keeping with the extension that the President granted to the Republic of Paraguay (hereinafter "Paraguay") and the Republic of Costa Rica (hereinafter "Costa Rica"), these two countries submitted their comments on May 4 and 8, 1998, respectively. The United States submitted its comments on June 1 of that year.
13. The Inter-American Commission submitted its comments on April 30, 1998.
14. The following jurists, nongovernmental organizations and individuals submitted briefs containing the points of view of amici curiae between April 27 and May 22, 1998:
15. On June 12, 1998, before the public hearing convened by the President commenced, the Secretariat provided those present for the public hearing with a set of the comments and relevant documents submitted to date in the advisory proceedings.
16. The following were present at the public hearing:
for the United Mexican States:
Sergio González Gálvez,
Enrique Berruga Filloy,
Rubén Beltrán Guerrero,
Jorge Cícero Fernández,
Juan Manuel Gómez Robledo,
for Costa Rica: Carlos Vargas Pizarro,
for El Salvador: Roberto Arturo Castrillo Hidalgo,
Gabriel Mauricio Gutiérrez Castro,
Ana Elizabeth Villalta Vizcarra,
Roberto Mejía Trabanino,
for Guatemala: Marta Altolaguirre,
Dennis Alonzo Mazariegos,
Alejandro Sánchez Garrido,
for Honduras: Mario Fortín Midence,
Carla Raquel,
for Paraguay: Carlos Víctor Montanaro,
Marcial Valiente,
Julio Duarte Van Humbeck,
for the Dominican Republic: Claudio Marmolejos
for the United States: Catherine Brown,
John Crook,
John Foarde,
Robert J. Erickson,
for the Inter-American Carlos Ayala Corao,
Human Rights, Delegate;
Alvaro Tirado Mejía,
Elizabeth Abi-Mershed,
for Amnesty International: Richard Wilson, and
Hugo Adrián Relva;
for CMDPDH, Human Mariclaire Acosta;
Rights Watch/Americas José Miguel Vivanco;
And CEJIL: Viviana Krsticevic;
Marcela Matamoros, and
Ariel Dulitzky;
for the International Douglas Cassel;
Human Rights Law
Institute of DePaul
University College of
Law:
for Death Penalty Mike Farrell and
Focus of California: Stephen Rohde;
for Minnesota Advocates for Sandra Babcock and
Human Rights Margaret Pfeiffer;
representing Mr. José Laurence E. Komp;
Trinidad Loza Luz Lopez-Ortiz, and
Gregory W. Meyers;
in an individual capacity: John Quigley;
Mark J. Kadish, and
Héctor Gros Espiell.
Also present as an observer was:
for Canada: Dan Goodleaf,
17. At the public hearing, El Salvador and the Inter-American Commission delivered to the Secretariat the written texts of their oral arguments before the Court. In keeping with the President’s instructions in this regard, the Secretariat made a record of receipt of the submissions and provided copies of the documents to all those appearing before the Court.
18. Also during the public hearing, the United States presented a copy of a handbook titled "Consular Notification and Access: Instruction for Federal, State and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them," published by the United States Department of State. The requesting State presented a brief titled "Explicación de las preguntas planteadas in la solicitud consultiva OC-16" ["Explanation of the questions raised in the request for Advisory Opinion OC-16"], three documents titled "Memorandum of Understanding on Consultation Mechanism of the Immigration and Naturalization Service Functions and Consular Protection," "The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides," and "Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent," and a copy of a letter dated June 10, 1998, signed by Mr. Richard C. Dieter and addressed to the Court on ‘Death Penalty Information Center’ letterhead paper. As instructed by the President, the Secretariat made a record of receipt of these documents and made them available to all members of the Court.
19. At the conclusion of the public hearing, the President told those who had appeared before the Court that they could submit briefs of final comments on the advisory process underway, and set three months from the time the Secretariat transmitted the verbatim record of the public hearing to all the participants as the deadline for submission of those final comments.
20. On October 14, 1998, the requesting State submitted to the Court a copy of two documents, titled "Comisión General de Reclamaciones México—Estados Unidos. Caso Faulkner, Opinión y Decisión de fecha 2 de noviembre de 1926" [Mexican-United States General Claims Commission. Faulkner Claim, Opinion and Decision of 2 November 1926] and "Información adicional sobre los servicios de protección consular a nacionales mexicanos en el extrajero" [Additional information on consular protection services for Mexican nationals abroad].
21. By notes dated February 11, 1999, the Secretariat forwarded the verbatim record of the public hearing to all participants.
22. The following institutions and individuals who had appeared as amici curiae submitted briefs of final points of view: CMPDDH, Human Rights Watch/Americas and CEJIL, August 20, 1998; International Human Rights Law Institute of DePaul University College of Law, October 21, 1998; Mr. José Trinidad Loza, May 10, 1999, and Amnesty International, May 11, 1999.
23. The Inter-American Commission submitted its brief of final comments on May 17, 1999.
24. The United States presented its brief of final comments on May 18, 1999.
25. As directed by the President, on July 6, 1999, the Secretariat forwarded the briefs of additional comments submitted to this Tribunal, to all those who had participated in the proceedings and there informed them that the Court would scheduled its deliberations on the request for its ninety-fifth session, September 16 to October 2, 1999.
*
* *
26. The following is the Court’s summary of the substance of the original briefs of comments submitted by the States participating in these advisory proceedings and those of the Inter-American Commission:
The American States recognize that in the specific case the death penalty, the fundamental rights of a person must be scrupulously observed and respected, because that punishment causes irreparable loss of that "most fundamental of human rights that is the right to life";
The jurisprudence of this Court, the doctrine of the Inter-American Commission and a number of UN resolutions have recognized that application of the death penalty must be conditional upon and subject to the restrictions imposed by strict observance of the judicial guarantees that the universal and regional human rights instruments uphold with regard to the due process in general and cases in which the death penalty is applicable;
When the detained persons are foreign nationals, it is evident that the minimum guarantees of criminal justice must be applied and interpreted in accordance with the Vienna Convention on Consular Relations, since otherwise they would be deprived of a "suitable means" to exercise those rights;
Prompt consular assistance may be decisive in the outcome of a criminal proceeding, because it guarantees, inter alia, that the foreign detainee is advised of his constitutional and legal rights in his own language and in a manner accessible to him, receives proper legal counsel, and understands the legal consequences of the crime of which he is accused, and
Consular agents may assist in the preparation, coordination and supervision of the defense, play a decisive role in obtaining, in the State of which the accused is a national, evidence that attests to mitigating circumstances and help make the circumstances of the accused and his relatives "more humane," thereby helping to compensate for the real disadvantage at which they find themselves.
El Salvador In its brief of April 29, 1998, the Salvadoran State wrote the following:
Failure to comply with Article 36 of the Vienna Convention on Consular Relations can "in practice lead to wrongful executions […] that violate a person’s most fundamental right […], the right to life", and
Application of the rules and principles embodied in international human rights instruments must be assured, strengthened and promoted, and observance of the minimum guarantees necessary for the due process must be assured.
Guatemala In its brief of April 30, 1998, the Guatemalan State wrote the following:
Given the rights and guarantees protected under Article 36 of the Vienna Convention on Consular Relations, that article can be said to contain provisions concerning the protection of human rights;
The language of Article 36(1)(b) of the Vienna Convention on Consular Relations establishes the fact that the enforceability of the rights it confers is not conditional upon protests filed by the State of nationality of the detained foreign national;
The expression "without delay" in Article 36(1)(b) of the Vienna Convention on Consular Relations implies that a foreign national detainee must be advised of his rights "as soon as possible upon being arrested, detained or taken into preventive custody" and that his communications are to be forwarded without delay to his country’s consular office;
In a case in which the death penalty has been imposed, the juridical consequences of the failure to give the notification required under Article 36(1)(b) of the Vienna Convention on Consular Relations should be decided by the domestic court that tried that particular case;
The provision contained in Article 14 of the International Covenant on Civil and Political Rights is the basis for application of the Safeguards guaranteeing protection of the rights of those facing the death penalty;
Failure to comply with the obligation contained in Article 36(1)(b) of the Vienna Convention on Consular Relations "could be a violation" of Article 14(3)(b) of the International Covenant on Civil and Political Rights;
The "minimum guarantees" referred to in Article 14(3) of the International Covenant on Civil and Political Rights encompasses the provisions of Article 35(1)(b) of the Vienna Convention on Consular Relations, and
The guarantee of nondiscrimination, upheld in Article 3(1) of the OAS Charter and Article II of the American Declaration, includes the matter of nationality.
Dominican Republic The Dominican Republic divided its written comments of April 30, 1998
The purpose of Article 36 of the Vienna Convention on Consular Relations is to protect the human rights of the accused and their enforceability is not subject to protests from the State of nationality, because "the Convention is national law inasmuch as it was approved by the National Congress";
The detainee must be informed of his rights under Article 36 of the Vienna Convention on Consular Relations at the time of his arrest and before he makes any statement or confession;
Article 14 of the International Covenant on Civil and Political Rights must be interpreted in the light of the phrase "all possible safeguards to ensure a fair trial", the language of paragraph 5 of the Safeguards guaranteeing protection of the rights of those facing the death penalty; therefore, observance of Article 36(1)(b) of the Vienna Convention on Consular Relations is essential if the accused is to be afforded those guarantees, and
Failure to inform a detained foreign national of his rights under the Vienna Convention on Consular Relations is a violation of the OAS Charter and the American Declaration.
In the second half of its brief of April 30, 1998, titled "Report […] on the Advisory Opinion," the Dominican Republic repeated some of the comments expressed previously and added that:
Consular assistance derives from the right to nationality recognized in the Universal Declaration of Human Rights (hereinafter "the Universal Declaration"); the provisions of the Vienna Convention on Consular Relations must be observed if that consular assistance is to be effective;
The purpose of the provisions relating to observance of the due process is to assert a number of individual rights, such as equality before the courts and the right to be heard, without distinction; consular intervention sees to it that the correlative obligations that attend those rights are performed, and
Observance "without delay" of the provisions of Article 36 of the Vienna Convention on Consular Relations ensures the due process of law and protects the individual’s fundamental rights, "especially the most basic right of all, the right to life."
Honduras In its brief of April 30, 1998, the Honduran State wrote the following with respect to the jurisdiction of the Court:
The source of "consular notification" is Article 36 of the Vienna Convention on Consular Relations, which is the domestic law of the American States and, as such, enhances "the measures provided by the Hemisphere’s system for the protection of human rights," and
Under Article 29(b) of the American Convention, no provision of that Convention can be interpreted as restricting the Court’s advisory jurisdiction to interpret the request concerning "consular notification," even when the right to consular notification derives from a universal instrument.
Paraguay In its brief of May 4, 1998, the Paraguayan State wrote the following in
States have an obligation to respect the minimum judicial guarantees upheld by international law in the case of a person "accused of a capital offense in a State of which he is not a national. The host State incurs international responsibility if it fails to honor that obligation";
International norms for the protection of fundamental rights must be interpreted and applied in a manner consistent with the international juridical system of protection;
Failure to comply with Article 36 of the Vienna Convention on Consular Relations concerning "communication with nationals of the sending State," is a violation of the human rights of the accused foreign national because it affects the due process and, in cases involving the death penalty, can violate the human right par excellence: the right to life";
Paraguay has a case against the United States before the International Court of Justice, concerning a failure to observe Article 36 of the Vienna Convention on Consular Relations (infra 28), and
Because the States’ systems differ, the consular function is essential to providing the affected national with immediate and timely assistance in the criminal proceedings and can affect the outcome of the case.
Costa Rica In its brief of May 8, 1998, the Costa Rican State wrote the following
The considerations that gave rise to the request do not interfere with the proper functioning of the inter-American system and do not adversely affect the interests of any victim, and
In the present matter, the purpose of the Court’s advisory function is to further compliance with Article 36 of the Vienna Convention on Consular Relations, which concerns observance of the individual’s fundamental rights;
and on the merits of the request:
Domestic laws cannot stand in the way of proper performance of international human rights obligations;
The obligations that attend protection of the minimum guarantees and the requirements of the due process in respect of human rights are binding, and
all the entities of a federal State are bound by the international treaties that State signs.
United States In its brief of June 1, 1998, the United States stated the following with
The International Court of Justice had, at the time, a contentious case on its docket that involved the same issue that the requesting State had raised in these proceedings; hence, "prudence, if not considerations of comity, should lead th[e] Court to defer its consideration of the pending request until the International Court had rendered its decision interpreting the obligations of States party to the Vienna Convention on Consular Relations";
The Vienna Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, ratified by 53 States Party to that Convention, provides for conciliation or arbitration by agreement or referral of disputes to the International Court of Justice;
The request is patently an attempt to subject the United States to the contentious jurisdiction of this Court, even though the United States is not a party to the American Convention and has not accepted the Court’s contentious jurisdiction;
Mexico has presented a contentious case in the guise of a request for an advisory opinion. It cannot be settled without reference to specific facts that cannot be decided in an advisory proceeding;
The judicial records of the cases described in the request are not before the Court and the United States has not had the opportunity to refute the generalized allegations that the requesting State has made in connection with these cases;
Any decision by the Court, even of an advisory nature, would gravely affect the cases still pending before the respective judicial systems and seriously compromise the rights of the individuals and governments involved, including the victims of the crimes committed, who have not had the opportunity to participate in these proceedings, and
Were the Court to follow Mexico’s suggestion, it would call into question the basic fairness and sufficiency of any criminal proceeding conducted in the criminal justice systems of the States Parties to the Vienna Convention on Consular Relations that might result in a severe penalty and in which consular notification did not occur. "There is no basis in international law, logic, or morality for such a judgment and for the resulting disruption and dishonor to the many States parties to the Vienna Convention on Consular Relations";
Concerning the Vienna Convention on Consular Relations and consular assistance:
The Vienna Convention on Consular Relations is neither a human rights treaty nor a treaty "concerning" the protection of human rights. Instead, it is a multilateral treaty "of the traditional type concluded to accomplish reciprocal exchange of rights for the mutual benefit of the contracting States," in the sense interpreted by the Court in its second Advisory Opinion. In support of its argument, the United States asserts that the intent of the Vienna Convention on Consular Relations is to establish legal rules governing relations between States, not to create rules that operate between States and individuals; its Preamble states that the purpose of such privileges and immunities "is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States";
Not every obligation of States regarding individuals is perforce a human rights obligation. Nor does the fact that one provision in the Vienna Convention on Consular Relations may authorize beneficial assistance to certain individuals in certain circumstances transform the Vienna Convention into a human rights instrument or a source of the human rights of individuals;
Article 36 of the Vienna Convention on Consular Relations is in the section titled "Facilities, privileges and immunities relating to a consular post", and
Neither the Vienna Convention on Consular Relations nor any international human rights instrument creates the right to consular assistance. The former merely stipulates that a host State must inform a detainee that, if he requests, sending State consular authorities may be notified of his detention. "[W]hether, when and to what extent consular assistance is ultimately provided to the detainee is in the discretion of the sending State’s consular authorities." The United States describes the activities that its consular officers abroad perform when notified of the arrest of a United States citizen and from there concluded that no State provides the type of services that Mexico described in its request;
Concerning the nature of consular notification and its effects on the proceedings:
There is no evidence to support the premise that there exists a human right to consular notification or that it is a universal prerequisite to the observance of human rights.
If a defendant is treated fairly and with equality before the court, if he receives competent legal representation, and by such representation adequate time and facilities for the preparation of a defense, the failure to provide consular notification does not affect the integrity of the defendant’s human rights. By contrast, when the facts of a case demonstrate that a defendant did not receive the benefit of a fair trial and the due process protections, an inquiry properly results and remedies may be appropriate, regardless of consular notification.
Furthermore, consular notification is not a prerequisite for the observance of human rights and nonobservance does not invalidate criminal proceedings that otherwise "satisfy relevant human rights norms as reflected in national law";
The guarantees of the due process are to be given effect regardless of the nationality of the defendant and regardless "of whether consular relations exist between the host country and a foreign national defendant’s country." The United States reasons that if consular notification is to be considered a fundamental right, then the inference is that individuals who are nationals of States that have consular relations "have greater human rights than others" who are nationals of States that do not have relations of that type or States that are not party to the Vienna Convention on Consular Relations;
Neither the Vienna Convention on Consular Relations nor international human rights instruments require that proceedings in criminal cases be held in abeyance pending notification, and
Nothing in the texts of the respective human rights instruments and their negotiating histories makes reference, either implicitly or explicitly, to the right to consular notification.
Concerning the relationship of consular notification to the principle of equality before the law:
There is no basis for assuming that a foreign national will not effectively enjoy his rights without special measures being taken, because the needs and circumstances of each foreign national vary dramatically, from one who is completely unfamiliar with the host State’s language and customs (as in the case of an individual making a brief visit to a country) to complete language
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