PART 2.3
to consular access and support is especially
important for trafficked persons who have
been arrested, detained or charged with an
offence. Under the Vienna Convention on
Consular Relations, States parties are required
to assist non-citizens who have been detained
to contact consular officials from their country of
citizenship. Specifically:
[if the individual concerned] so requests, the
competent authorities of the receiving State
shall, without delay, inform the consular post
of the sending State if, within its consular
district, a national of that State is arrested or
committed to prison or to custody pending
trial, or is detained in any other manner. Any
communication addressed to the consular post
by the person arrested, in prison, custody
or detention shall be forwarded by the said
authorities without delay. The said authorities
shall inform the person concerned without
delay of his rights under this sub-paragraph
(art. 36 (1)(b)).
The International Court of Justice has, on three
recent occasions, examined the implications of
this paragraph from the perspective of individual
rights.298 In the LaGrand case, the court held that
the Vienna Convention “creates an individual
right to certain forms of consular assistance and
does not merely regulate the rights and duties
of States parties”.299 Under the provisions of this
Case Concerning the Vienna Convention on Consular
Relations (Paraguay v. United States of America), Request
for the Indication of Provisional Measures (1998) ICJ
Reports 248; LaGrand case (Germany v. United States
of America), Merits (2001) ICJ Reports 466; Avena
and Other Mexican Nations (Mexico v. United States of
America), Merits (2004) ICJ Reports 12. See also The Right
to Information on Consular Assistance in the Framework
of the Guarantees of the Due Process of Law (Advisory
Opinion) (Solicitud de Opinión Consultiva presentada
por el Gobierno de los Estados Unidos Mexicanos) InterAmerican Court of Human Rights OC-16/99 (1997).
298
LaGrand case (Germany v. United States of America),
Merits (2001) ICJ Reports 466, as summarized in
299
140
instrument and on the basis of this judgment,
trafficked persons who have been arrested and/
or detained by the country of destination for
any reason have the right to be informed of, as
well as to seek and receive, consular assistance
from their country of citizenship. The Migrant
Workers Convention also specifies that, where
a migrant worker is detained, the consular or
diplomatic staff of his or her State of origin shall
be informed without delay of the arrest and the
reasons for it.300
Guideline 6.3 implicitly recognizes that
effective consular support requires informed
and committed consular staff. It is especially
important for consular officials to understand
the trafficking phenomenon and how it affects
their nationals. Consular officials should also
be aware of the rights of victims of trafficking,
including their right to not be detained arbitrarily.
A failure to provide the consular assistance to
which an individual is entitled is a breach of
international law, invoking the international legal
responsibility of the offending State.301
SEE FURTHER:
• Right to a remedy: part 2.4, sections 17.117.6
• Detention of child victims of trafficking: part
2.3, section 10.4
• Freedom of movement: part 2.1, section 3.3
Commission on Human Rights, Sub-Commission on the
Promotion and Protection of Human Rights, Progress report
of the Special Rapporteur, Mr David Weissbrodt, on the
rights of non-citizens – United Nations activities (E/CN.4/
Sub.2/2002/25/Add.1, para. 71).
300
Migrant Workers Convention, art. 16 (7)(a).
See Case Concerning the Vienna Convention on
Consular Relations (Paraguay v. United States of America);
LaGrand case (Germany v. United States of America);
Avena and Other Mexican Nations (Mexico v. United
States of America). See also John Quigley, “The law of
State responsibility and the right to consular access”,
Willamette Journal of International Law and Dispute
Resolution, vol. 11 (2003), p. 39.
301
RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents