On The Consular Notification Right In Consular Protection

With the deepness of international communication, there are higher needs forsovereign state which consular protection should be more diversified, thus thelegislations and practical operation of consular protection put forward higherrequirements. The research on consular notification right in China has just started.The consular notification right originate from article36in Vienna Convention onConsular Relations (VCCR). Through analyzing three typical decisions ofInternational Court of Justice (ICJ) in“Breard”Case “,Lagrand”Case and“Avena”Case,ICJ has changed the point on consular notification right. In “Breard”Case,ICJhad not admitted the right include personal right, but in “Lagrand”Case ICJ held thatthe United States has violated the consular notification right of Article36in VCCRwhich ruled that police officers must inform arrested foreign nationals of their right tocontact their embassy or consulate for legal assistance, and arrested foreigners canthen request that police contact their embassy or consulate. And in “Avena”Case, ICJpointed out there should be substantial remedy for the party who suffered in the case,which reflects the impression of personnel theory to traditional international law.After near fifty years, the meaning of consular notification right that shouldconclude two parts, which means appropriate authorities within the receiving Statemust inform him “without delay” of his right to have his native country’s localconsular office notified of his detention and inform the consular office of sendingstate “without delay”.But in practice, to protective of national interests un-neutrally, many countriesadmit violating VCCR on one side, but reject to carry out the advisory opinion of theICJ. The untied States committed the violation of VCCR, but also denied the decisionof ICJ with reason that the “procedures default rule” in domestic law, and directlyapplication of convention is not allowed in the Untied States. As the development ofinternational theory and complicated reason result from political and diplomaticreason, there is more research on consular notification right paying more attention onnotification of consular right. But in practice, there is still more cases about violationof Article36of VCCR. Otherwise, expect the United States, some countries likeGermany, United Kingdom, Switzerland have committed the decision of VCCR inlegislation and practice on some degree.Consular protection system built last70’s can not accommodate theincreasingly complex and ever-changing international environment. Individual abroad criminal rate in China annually increase. There is not exact provision about consularnotification in legislation. And in practice the influence of the foreign affairs divisionof the Ministry of foreign affairs in the foreign criminal cases in the role is still in theinitial stage, with the significant help of the local Chinese organizations to mobilizenon-governmental forces in problem solving.To integrate the situation of our country, there is great need to establish consularnotification in the relevant judicial interpretation of criminal procedure, affirming theexact notification time and dual nature of its national rights and individual rights.Secondly, to construct relief mechanism of violating consular notification right in thestate compensation system is quite helpful perfecting consular protection mechanism.Thirdly, there should supervise and account the consular personnel aboard, perfectingour country’s legislation, more important, it will have great meaning to enrich theconsular protection work in theory and practice in China.As a country with a long history of diplomatic history, it is quite necessary tostrengthen consular protection both in theory and practice for the national image andprotect the legitimate rights and interests of overseas citizens. We should believe thatthe consular relation law which will be issued and a series of judicial interpretationcan construct and improve the system to make the consular protection work in Chinato meet the growing demand for consular protection.