Seminar-Workshop on Human Rights of Migrant Populations Government Protection for Nationals Abroad before Internat

1. Seminar-Workshop on Human Rights of Migrant Populations Government Protection for Nationals Abroad before International Judicial Institutions

2. Government Protection for Nationals Abroad before International Judicial Institutions For centuries, the right of States has been recognized to ensure the interests and well-being of their nationals abroad. • Vienna Convention on Consular Relations (VCCR) (1963) • 170 countries are part of the Vienna Convention • Consular Functions: Art.5. • Protection and Assistance for Nationals Abroad

3. Government Protection for Nationals Abroad before International Judicial Institutions • Consular functions include: a) To protect the interests of the sending State and its nationals – individuals or legal entities – in the receiving State, within the boundaries of international law. (…) e) To provide aid and assistance to nationals from the sending State – individuals or legal entities. … Protection and Assistance

4. Government Protection for Nationals Abroad before International Judicial Institutions Art. 36 VCCR • Establishes the obligation of informing detained foreign nationals without delay about the right to have their Consulate notified of the detention. When a detained foreign national chooses to have his/her Consulate notified, the relevant officer or authority should notify the Consulate without delay. … Protection and Assistance

5. Government Protection for Nationals Abroad before International Judicial Institutions Legal Strategy • Merits • Opportunity • Achieving the Purpose • Legal Repercussions Political Considerations • Opportunity • Potential Alliances 2. Considerations for Lodging an Appeal before an International Judicial Institution

6. Government Protection for Nationals Abroad before International Judicial Institutions • International Court of Justice (ICJ) (Optional Protocol of VCCR) Breard (Paraguay vs. US, 1998) - Preventive Measures (Suspension) 3. International Lawsuits relating to Violations of Article 36 of the VCCR

7. Government Protection for Nationals Abroad before International Judicial Institutions LaGrand (Germany vs. US, 1999) • United States violated the right to consular notification of the LaGrand brothers, as well as the right of the German Government to provide consular assistance (Art. 5, VCCR). • VCCR does establish individual rights for detained persons. • Domestic procedural preclusion rules should not apply for incidents of violation of VCCR. • Preventive measures stipulated by ICJ create obligation for the parties. … Lawsuits before ICJ

8. Government Protection for Nationals Abroad before International Judicial Institutions Joint Efforts Written Observations (April 30, 1998): Dominican Republic, Republic of Honduras, and Republic of Guatemala. Public Hearing (June12-13, 1998): Participants directly link the right to information about consular assistance to human rights, particularly to judicial guarantees (legal arguments in Mexico, Costa Rica, El Salvador, Guatemala, Honduras, Paraguay) and even to the right to life (legal arguments in Mexico, Paraguay, Dominican Republic). A discrepant delegation (Inter-State). 4. Consultative Opinion, IACHR 16/99

9. Government Protection for Nationals Abroad before International Judicial Institutions Highly Relevant Contributions: Amnesty International, the Mexican Human Rights Commission, Human Rights Watch/Americas, the Centre for Justice and International Law, universities, and individuals. … OC 16/99

10. Government Protection for Nationals Abroad before International Judicial Institutions • Without delay, that is, the moment when the individual is deprived of his/her freedom and, in any case, before the detained person makes his/her first statement before authorities. • Violation of the right to consular notification in case of capital punishment can have serious consequences for due process in criminal procedures of the accused, including the right to a fair trial and defence. … OC 16/99

11. Government Protection for Nationals Abroad before International Judicial Institutions Legal arguments made by Mexico subsequently in Avena: • Continuous violation of VCCR by local authorities in the United States. • Efforts to repair violations of the right to consular notification. • Inadequacy of the United States in complying with the obligation of consular notification • Javier Suárez Medina (Texas, August 2002) … OC 16/99

12. Government Protection for Nationals Abroad before International Judicial Institutions • ICJ reaffirmed that Article 36 of VCCR establishes individual rights that need to be respected. • Review and reconsideration… taking into account the weight of the lack of consular notification in final decisions made by state courts. • Clemency or mercy mechanisms are not the ideal means to repair violations. • Procedural preclusion rules do not apply (LaGrand) 5. The Avena Case and other Mexican Nationals vs. the United States (2003).

13. Government Protection for Nationals Abroad before International Judicial Institutions • Based on the Avena case and its ruling (March 31, 2004), in addition to achieving that no execution date was established at all, two Mexican nationals immediately benefited from the ruling – their death sentence was commuted to life imprisonment:Osvaldo Torres Aguilera (Oklahoma) and Rafael Camargo Ojeda (Arkansas). .... Avena Case, ICJ

14. Government Protection for Nationals Abroad before International Judicial Institutions Topics: 2002 (Article 64.1 of the American Convention on Human Rights) • The obligation of respect for and protection of human rights and the fundamental nature of the principle of equality and non-discrimination. • Applying the principle of equality and non-discrimination to migrants. • The rights of undocumented migrant workers. • State obligations to develop migration policy in light of international human rights instruments. 6. Consultative Opinion, IACHR 18/03

15. Government Protection for Nationals Abroad before International Judicial Institutions • States are under the general obligation to respect and protect basic rights. • Incompliance by States – through any discriminatory treatment – of the general obligation to respect and protect human rights generates international liability. • The general obligation to respect and protect human rights is binding for States, regardless of circumstances or considerations, including the migration status of individuals. …OC 18/03

16. Government Protection for Nationals Abroad before International Judicial Institutions • The migration status of an individual may not be a justification for depriving this person of the enjoyment and exercise of his/her human rights, including labour rights. Rights are a consequence of the labour relationship. • The State is under the obligation to respect and protect the labour-related human rights of all workers. …OC 18/03