Some Merit Speculation in France v. Iran Case – Cambridge International Law Journal

On Friday, 16 Could, France filed an software, which is written solely in French, earlier than the Worldwide Court docket of Justice (ICJ or Court docket) in opposition to the Islamic Republic of Iran, alleging the violations of consular entry rights in relation to the detention of two of its nationals, Cécile Kohler and Jacques Paris, arrested and accused of ‘espionage’ in 2022. In its software, France requested the Court docket to declare that:

de dire que l’Iran a manqué, et proceed de manquer, à ses obligations au titre de l’article 36 de la Conference de Vienne sur les relations consulaires du 24 avril 1963. (‘Iran has failed, and continues to fail, to satisfy its obligations below Article 36 of the Vienna Conference on Consular Relations of 24 April 1963.’) (para 39)

This marks the fifth case introduced earlier than the ICJ regarding alleged the violations of the correct of consular entry as enshrined in Article 36(1) of the Vienna Conference on Consular Relations 1963 (the Conference) (right here, right here, right here, and right here). In actual fact, Article 36(1)(b) had a fraught genesis (para 143), and the contentious debates throughout its negotiations have laid the groundwork for the disputes seen at present. Though there was basic settlement that the receiving state should guarantee consular entry for detained overseas nationals, intense disagreements emerged relating to the scope of this obligation, together with when the receiving state should notify the sending state of the detention of its nationwide (para 35 seq). The disagreements had been so intense that they had been about to jeopardize your complete Conference. It was solely two days earlier than the conclusion of negotiations that the delegates reached a fragile consensus on the textual content of the Article 36(1)(b) (para 146) .

Since its adoption, the ICJ has performed a distinguished function in decoding and clarifying the ambiguities embedded inside this provision. On this case, relating to its software, France has invoked three particular breaches of the correct to consular entry, providing the Court docket one more alternative to articulate the scope of the rights and procedures of the Conference. These three alleged breaches concern: the failure to inform at once the arrest of a overseas nationwide (para 31), the correct to freely select authorized illustration (para 10, para 16, and para 17), and the character and frequency of consular contact with detained nationals (para 8). This put up focuses on the primary of those claims, aiming to elucidate some structural ambiguities inside Iran’s prison justice framework and to supply tentative projections about how the Court docket could reply to such claims.

The Worldwide Rule: The Ambiguity Regarding ‘With out Delay’ Notification

In its software, France claims that Iranian authorities knowledgeable the French authorities of detention ‘plus de deux mois’ (greater than two months) after the authorities detained the French nationals (para 31). Accordingly, if France’s declare proves to be correct, Iran can have violated its obligation, embodied in Article 36(1)(b) of Conference, to inform at once the French authorities of arrest of its nationals. It’s uncertain whether or not the phrase ‘at once’, nonetheless interpreted, may justify a delay of so long as two months. The (repetitive) key query, nonetheless, is: when precisely does the duty to inform come up?

The first goal of affording consular providers to detained nationals is the safety of their ‘inalienable rights‘,  amongst which the correct of ‘due course of’ and another ensures enshrined in Article 14 of the Worldwide Covenant on Civil and Political Rights stand on the apex (para 116). Due to this fact, the sending State have to be knowledgeable of the detention ‘at once’ and earlier than the detainee’s rights are irreparably infringed (para 419). The phrase ‘at once’ seems 3 times in Article 36(1)(b) of the Conference:

The competent authorities of the receiving State shall, at once, inform the consular put up of the sending State… Any communication addressed to the consular put up by the particular person arrested, in jail, custody or detention shall be forwarded by the mentioned authorities at once. The mentioned authorities shall inform the particular person involved at once of his rights below this subparagraph.

Because the ICJ famous within the Avena case: ‘there isn’t any suggestion within the travaux that the phrase ‘at once’ might need totally different meanings in every of the three units of circumstances… in Article 36, paragraph 1(b).’ Thus, the time period ‘at once’ carries a constant that means throughout all three situations in Article 36(1)(b).

To higher perceive the temporal dimension of the phrase ‘at once’, it’s useful to contemplate how this phrase has been construed earlier than totally different boards. The Inter-American Court docket of Human Rights (the IACHR), in its well-known Advisory Opinion OC-16/99 of October 1, 1999, acknowledged that notification have to be made’on the time the accused is disadvantaged of his freedom, or no less than earlier than he makes his first assertion earlier than the authorities.’ (para 106) Nonetheless, in the course of the drafting of Article 36(1)(b), there was appreciable divergence amongst states. Proposals ranged from permitting notification as much as one month after arrest (as instructed by Germany) to requiring fast notification upon arrest (as advocated by the Soviet Union) (pp 47-48). However, the broad interpretation mirrored within the IACHR’s opinion is, at greatest, impractical in lots of authorized methods. In observe, the duty to inform at once arises when the detaining authorities, within the ICJ’s opinion, ‘realized that the particular person is a overseas nationwide, or as soon as there are grounds’ to so conclude. (para 63) Consequently, the ICJ, in Avena, rejected the IACHR’s strict normal, stating that: ‘at once’ isn’t essentially to be interpreted as ‘instantly’ upon arrest (para 87). Relatively, the duty to inform materializes as soon as the detaining authorities are conscious—or have purpose to consider—that the person is a overseas nationwide (para 88).

In LaGrand, the USA sought to create temporal flexibility by distinguishing between arresting authorities and people ‘competent authorities’ accountable for notification below Article 36(1)(b) (para 16). But the ICJ didn’t conclusively decide whether or not such a differentiation is permissible below the Conference for the needs of triggering the notification obligation. Nonetheless, within the Jadhav case, the Court docket rejected arguments that the duty to inform may very well be suspended merely as a result of the detainee was accused of espionage—exactly the justification invoked by Iran within the case of Kohler and Paris.

After we recall that the Court docket within the Avena case deemed a five-day delay in notification to the consular put up (para 106 and para 112) and, within the Jadhav case, an roughly three-week delay in notification |(para 77) had been unjustifiable, it turns into clear that delays exceeding these durations are hardly justifiable. Thus, if France’s assertion proves correct, it will be exceedingly tough for Iran to argue that the competent authorities had been unaware of the detainees’ overseas nationality.

The Home Rule: A Acquainted Sample of Procedural Default

Notice 2 to Article 236 of Iran’s Code of Felony Process ostensibly lays out the method for notifying a overseas authorities of arresting its nationals—albeit in obscure phrases. The availability states:

Within the occasion {that a} overseas nationwide is prosecuted and requests so, the investigating decide shall instantly inform the Basic Prosecutor of the person’s id and the character of the cost, to ensure that the required measures to be taken, and for the related authorities to be told in accordance with relevant laws.

Whereas Article 36(1)(b) of the Conference clearly predicates the notification obligation on arrest, dedication to custody, or imprisonment of a overseas nationwide, Iranian regulation triggers the method upon the mere initiation of prosecution. Nonetheless, in contrast to the Conference—which mandates direct communication with the overseas consular put up—the Iranian rule envisions a multi-tiered method: the primary notification is to the Basic Prosecutor, adopted by communication with ‘related authorities,’ whose id stays ambiguous. Crucially, whereas Article 36(1)(b) of the Vienna Conference explicitly requires that the ‘particular person involved’ be told of their consular rights, the corresponding Iranian provision is silent on this level. Because the ICJ emphasised in Avena, the failure to tell a overseas nationwide of his consular rights is, in itself, a violation of the sending state’s rights (para 78).

The Article 30 of ILC’s Draft on Duty of State requires wrongful state ‘to stop’ the wrongful act and ‘to supply applicable assurances and ensures of non-repetition, if circumstances so require.’ This raises the query: if Iran is certainly discovered to have breached Article 36(1)(b), may the assure of non-repetition or stop the wrongful act entail a requirement to amend Notice 2 of Article 236 of its Code of Felony Process? Acconciamessa has argued that requiring the wrongful state to repeal home laws that’s inconsistent with its worldwide obligations falls inside the powers of worldwide courts and constitutes one of many authorized penalties of a breach of a world obligation. Nonetheless, the European Court docket of Human Rights has not too long ago rejected this view, emphasizing the declaratory nature of its choices (para 122). This place seems to align with the findings of the ICJ, which shall be examined within the following paragraph.

In actual fact, an analogous concern arose within the LaGrand case, the place Germany argued that the procedural default rule within the U.S. authorized system—which barred elevating sure claims on the federal stage if that they had not been introduced on the state stage—successfully prevented overseas nationals from benefiting from the Conference’s protections. Germany requested that the Court docket order the U.S. to supply ensures of non-repetition (para 81). The Court docket responded that the procedural default rule ‘as such’ was not ‘inherently inconsistent’ with the US’ worldwide obligation, however quite‘the circumstances by which the procedural default rule was utilized’ had been at fault (para 125). Nonetheless, the Court docket leaves the selection of the suitable technique for reviewing the convictions to the US itself (ibid).

Not like the U.S. procedural default rule, it seems that Notice 2 of Article 236 of Iran’s Code of Felony Process, as such, isn’t appropriate with Iran’s worldwide obligations below Article 36(1)(b). However, given the Court docket’s inherent judicial conservation, it’s unlikely that the ICJ will prolong its reasoning considerably past the ideas articulated in LaGrand and Avena. In different phrases, ought to this provision be raised within the pleadings, the Court docket could effectively conclude that Notice 2 doesn’t conform to Iran’s obligations—however it should possible depart it to Iran to find out the particular measures essential to carry its home framework into conformity with the Conference.

Siamak Karimi is a former researcher on the Hague Academy of Worldwide Legislation and a visiting professor on the College of Tehran. His analysis pursuits embody the unilateral acts of states, the peaceable settlement of worldwide disputes, and worldwide funding regulation.