Abolitionists at home and abroad: A right to consular assistance and the death penalty

Mallory, Conall (2016) Abolitionists at home and abroad: A right to consular assistance and the death penalty. Melbourne Journal of International Law, 17 (1). pp. 51-82.

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Abstract

The provision of consular assistance is critical to nationals who face criminal proceedings abroad which may result in the death penalty. In recent years the importance of a detained foreign national accessing consular authorities from their home state has been recognised as both a human right and an individual right in international law. Despite this, the question of whether there is an obligation on the national’s home state to provide consular assistance has yet to be answered. This article makes a case for the emergence of such a right to consular assistance in capital cases for nationals of states which have abolished the death penalty. With reference to both the International Covenant on Civil and Political Rights and the European Convention on Human Rights, the article locates this emerging right within a state’s positive obligation to protect life. It is recognised that for any such emerging right to be meaningful it must be capable of being enforced. The article therefore addresses the particular challenges of extraterritorially applying a right to consular assistance and proposes the return to a previous, more flexible, understanding of extraterritorial human rights obligations on consular agents.

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