Reparation for violation of right to receive consular protection via Relative Restitution

Document Type : Original Article

Authors

1 Assistant Professor, Department of International Law, Faculty of Law and Political Science, University of Mazandaran , Babolsar, Iran.

2 Associate Professor, Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran.

Abstract

The right to receive consular protection and its guarantee by the host state is an element of making the right to a fair trial effective. Its development in the practice of human rights treaty bodies as a human right has put consular protection in interaction with human rights, especially the right to fair trial and the right to life. Violation of this right and depriving individuals in national courts and, conviction and sentence based on consular deprivation may lead to the ineffectiveness of criminal proceedings and the violation of some substantive rights, such as the right to life and Freedom from torture. The present essay, with an analytical-descriptive method, seeks to answer the question of how the Humanistic approach affects restitution as an appropriate remedy for the violation of the right to receive consular protection. It seems that Relative restitution in the form of review and reconsideration of sentences and punishments, provided to effectiveness, is considered an effective and appropriate remedy and guarantees the human rights of foreign nationals and the legitimate interests of the host state. On the other hand, the approach of full restitution in the form of annulment of the issued sentences and punishments is not considered an appropriate remedy due to providing an opportunity to escape from criminal justice and denying the jurisdiction of the host state. International precedent, alongside Cessation and non-repetition, has chosen partial restitution, provided to its effectiveness.

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Amiri, Atefe (2009), forms of reparation in the Draft articles on Responsibility of States for Internationally Wrongful Acts (2001) with emphasis on compensation in the light of international judicial precedent, LLM thesis in international law, university of Tehran, faculty of law and political sciences (in Persian)
Arora, Muskan (2020), A Commentary on the Kulbhushan Jadhav Case – Explaining the Rules of the Vienna Convention on Consular Relations, NUJS law review, Vol. 13, issue. 1
Buyse, Antoine (2008), Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law, Heidelberg Journal of International Law (HJIL), Vol. 68
Carter, Linda (2005), Lessons from Avena: The Inadequacy of Clemency and Judicial Proceedings for Violations of the Vienna Convention on Consular Proceedings for Violations of the Vienna Convention on Consular Relations, duke journal of comparative & international law, Vol. 15, No. 2
Cangado Trindade, A.A., (2013), International Law for Humankind: Towards a New Jus Gentium-General, Course on Public International Law, Hague academy of international law
Clooney, Amal and web, Philippa, (2020), The Right to a Fair Trial in International Law, Oxford University Press
Committee on the Elimination of Discrimination against Women, General recommendation No. 38, 2020
Committee on Migrant Workers, General comment No.1, 2011
Committee on Migrant Workers - Committee on the Rights of the Child, Joint General Comment No. 4, 2017
Committee on Migrant Workers, General comment No.5, 2021
Crawford, James (2013), State Responsibility: General Part, Cambridge university press
EU Charter of Fundamental Rights, 2000
General Assembly resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
General Assembly resolution 71/187
General Assembly resolution 73/175
General Assembly resolution 74/318
General Assembly resolution 75/183
General Assembly resolution 75/309
Ghari seyed Fatemi, seyed mohammad (2010), human rights in the contemporary world, Vol. II: analytical essays on rights and liberties, Tehran, the SD institute of law research and study (in Persian)
Human Rights Committee, General comment No. 31, 2004
Human Rights Committee, General comment No. 32, 2007
Human Rights Committee, General comment No. 35, 2014
Human Rights Committee, General comment No. 36, 2019
Human rights council, The question of the death penalty, 2017, A/HRC/RES/36/17
Human rights council, The question of the death penalty, 2019, A/HRC/RES/42/24
IACHR, Advisory Opinion No. 18, OC- 16/99, 1999
IACHR, Advisory Opinion No.18, OC-18/03, 2003
ICJ cases, Ahmadou Sadio, Judgment of 30 November 2010
ICJ cases, Ahmadou Sadio, Judgment of 30 November 2010, Separate opinion of Judge Cançado Trindade
ICJ cases, Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004
ICJ cases, Avena and Other Mexican Nationals (Mexico v. United States of America), Memorial of Mexico, 2003
ICJ cases, Avena and Other Mexican Nationals (Mexico v. United States of America), order on provisional measures, 2003, Declaration of Judge Oda
ICJ cases, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002
ICJ cases, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), Judgment of 5 February 1970
ICJ cases, Jadhav, Memorial of the Republic of India, 13 September 2017
ICJ cases, Jadhav, Judgment of 17 July 2019
ICJ cases, Jadhav, Judgment of 17 July 2019, Declaration of Judge Robinson
ICJ cases, Jadhav, Judgment of 17 July 2019, Separate opinion of Judge Cançado Trindade
ICJ cases, Jadhav, order on provisional measures, 2017, Concurring opinion of Judge Cançado Trindade
ICJ cases, Lagrand (Germany v. United States of America), Judgment of 27 June 2001
ICJ cases, Lagrand (Germany v. United States of America), Memorial of Germany, 1999
ICJ cases, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971
ICJ cases, Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals Judgment, 2009
ILC Draft Conclusions on identification and legal consequences of peremptory norms of general international law (Jus Cogens), with commentaries, 2022
ILC Draft Articles on Consular Relations, 1961
ILC Draft articles on state responsibility with commentaries (ARSIWA), 2001
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990
International Covenant on civil and political rights, 1966
International Organization for Migration, world migration report 2020
International Organization for Migration, world migration report, 2022
Lau, Beatrice (2022), "Hostage Diplomacy" - A Contemporary State Practice Outside the Reach of International Law, Georgetown Journal of International Law, Vol. 53, N. 3
Migrant Workers Convention, 1990
Mostaghimi, Bahram, taromsari, masoud (1999), international responsibility of the state: the case of Iraqi invasion of Iran, faculty of law and political science, Tehran university (in Persian)
PCIJ, Exchange of Greek and Turkish Populations, 1925
PCIJ, Factory of chorzov, 1928
PCIJ, Jurisdiction of the Courts of Danzig, 1928
Ragazzi, Maurizio (2005),"International Responsibility Today Essays in Memory of Oscar Schachter, Leiden, Martinus Nijhoff Publishers
Rene, Provost (2016), State responsibility in international law, Routledge
Shelton, Dinah (2015), remedies in international human rights law, Oxford University Press
Stewart, David (2020), The Emergent Human Right to Consular Notification, Access and Assistance, Cambridge Handbook of New Human Rights
travaux preparatoires of VCCR, United Nations, doc A/CONF.25/16/Add.1, Vol. I
travaux preparatoires of VCCR, United Nations, doc A/CONF.25/16/Add.1, Vol. II
United nations charter, 1945
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules, 2015
Veneziano, Sabina (2018), The Right to Consular Notification: The Cultural Bridge to a Foreign National’s Due Process Rights, Georgetown Journal of International Law, Volume 49, N.1
Vienna Convention on Consular Relations, 1963
Vienna Convention on Consular Relations, Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963
Vienna Convention on the Law of Treaties, 1969
Villiger Mark E. (2009), Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Martinus Nijhoff Publishers
World Tourism Organization, World Tourism Barometer, 2022