The Right to Consular Assistance: Development, Relation with Due Process, and Application

The article analyses the nature of the right to consular assistance from a historical perspective and the practice of international tribunals. It argues that the right to consular assistance is not a human right since it prescribes no autonomous standard of treatment. Consular assistance is not necessary to compensate for the vulnerability of the detained foreigner since the situation may be restored by the measures under the national legislation of the receiving State. The article explains that there is no obligation under international law to provide consular assistance by the sending State. The receiving State has the duty to perform its obligations under Article 36 of the VCCR once there are grounds to believe that the detainee is a foreign national and the stage of investigation provides for the possibility of notification. The VCCR does not establish an exhaustive list of the requirements for the waiver of the right to consular assistance by the detainee. Its validity is to be assessed in accordance with the standards of the invoked human right.