Title | A Research on consular notification in the case of detention | ||
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Date | 2019.04.24 | ||
Files | A Research on consular notification in the case of detention.pdf | ||
A Research on consular notification in the case of detention
The Vienna Convention on Consular Relations is the most basic multilateral treaty regarding consular relations, which prescribes the privileges and immunities of consular posts. This is to ensure efficient performance of functions by consular posts representing their sending states. Most of the member states of the United Nations are the parties of the VCCR, and Korea has also joined the Convention.
Article 36 of the VCCR, which is one of the provisions on facilities, privileges and immunities for a consular post, provides for communication and contact with nationals of the sending state. According to Article 36(1)(b), when a national of a sending state is arrested, imprisoned, or detained in any other manner within its consular district, the competent authorities of the receiving state shall, without delay, notify the consular post of the sending state of its national’s detention if he or she requests so. As the consular post serves to protect the interests of the sending state and its nationals, the consular officer shall take the role of protecting the nationals when their physical freedom and rights are restricted in the receiving state. In order to facilitate the exercise of this consular function, the receiving state needs to cooperate with the consular post of the sending state by notifying it the detention of its nationals. The VCCR stipulates that the competent authorities of the receiving state should inform the detained foreigners of their right to request consular notification, while stipulating that the notification to the consular post should be made when requested by the detained foreigners. Although the consular notification by the VCCR is an important system for the protection of persons who are arrested in foreign countries, Korean courts have not paid much attention to it. The main part of this study is to examine the present codification of consular notification in major foreign countries, aiming to provide implications for the role of our courts in consular notification. In addition, I will also examine the lawsuit cases in which detained foreign nationals were not informed about their rights under the VCCR or not provided consular notification. The International Court of Justice’s judgments on the LaGrand case and the Avena case are the most famous examples. This is to find remedies for the noncompliance with the VCCR. As a result of examining the present legislations in the U.S.A., U.K., Japan, China, Germany and France, we see that the above countries have provided various forms of codification on consular notification, from law and regulations to manuals inside an agency. Most countries require that consular notification should be given in non-criminal detention. They also have rules about the judge’s role in consular notification. In the event when a breach of consular notification occurred, the ICJ considered it to be an infringement of the individual’s rights and judicial review and reconsideration should be taken on as a remedy. The U.S. Supreme Court deemed that relief for the breach of consular notification could be granted only under domestic law, and as a result, did not allow judicial review and reconsideration based on the judgment of the ICJ. The lower courts in the U.K. ruled that statements taken from the arrested foreigners who were not informed of their rights to consular notification should be excluded. Federal Constitutional Court of Germany considers that failure of consular notification is the reason for appeal. Compared with the above comparative studies, Korea has relatively few laws and regulations on consular notification, and there is not enough discussion on related issues. Therefore, the Korean court should give some thought to consular notification, and endeavor for full implementation. Such efforts may include exploring and institutionalizing role that courts should take in regard to consular notification, and researching judicial remedies in the failure of consular notification. Fulfilling the obligation of consular notification is not only a guarantee of the rights of foreigners detained in our country, but also an effective way of ensuring the rights of our nationals detained in foreign countries. I hope this study will be of some help in raising Korean court’s interest in consular notification. |