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Seminar/Workshop: Capacity Building of Consular Authorities on Protection of the Labour Rights of Migrant Workers The Experience of Advisory Opinion OC-18/03. Protection of Nationals Abroad before International Justice Institutions.

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Seminar/Workshop: Capacity Building of Consular Authorities on Protection of the Labour Rights of Migrant Workers

The Experience of Advisory Opinion OC-18/03


Protection of nationals abroad before international justice institutions
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

For centuries, the right of States to ensure the interest and wellbeing of their citizens when they are outside State territory has been recognized.

  • Vienna Convention on Consular Relations (1963)

  • 170 countries are part of the Vienna Convention

  • Consular functions: Article 5

  • Protection and Assistance to Nationals Abroad


Protection of nationals abroad before international justice institutions1
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

  • Consular functions shall consist of:

    a) Protecting, in the receiving State, the interests of the sending State and its nationals – whether they are individuals or legal entities – within the limits established by international law. (…)

    e) Providing assistance to nationals from the sending State, whether they are individuals or legal entities.

… Protection and Assistance


Protection of nationals abroad before international justice institutions2
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

Legal Strategy

  • Merits

  • Opportunity

  • Achieving the end

  • Legal repercussions

    Political Considerations

  • Opportunity

  • Potential alliances

2. Considerations to present a recourse at an international organization


Protection of nationals abroad before international justice institutions3
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

  • International Court of Justice (ICJ)

    (Optional Protocol, VCCR).

    Breard (Paraguay vs. USA, 1998)

    - Precautionary measures (suspension)

3. International lawsuits to address violations to Article 36 of the Vienna Convention on Consular Relations (VCCR)


Protection of nationals abroad before international justice institutions4
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

LaGrand (Germany vs. USA, 1999)

  • The United States violated the right to consular notification of the LaGrand brothers, as well as the right of the German government to provide consular assistance (Article 5, VCCR).

  • VCCR establishes individual rights of the detained person.

  • Domestic rules of procedural preclusion should not apply to violations to VCCR.

  • Precautionary measures established by ICJ create an obligation for the parties.

… Lawsuits before ICJ


Protection of nationals abroad before international justice institutions5
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

Joint work

Written observations (30Apr98): Dominican Republic, Republic of Honduras, and Republic of Guatemala.

Public hearing (12&13Jun98): Participants directly link the right to information about consular assistance to human rights, particularly to judicial guarantees (arguments by Mexico, Costa Rica, El Salvador, Guatemala, Honduras, Paraguay) and even to the right to life (arguments by Mexico, Paraguay, the Dominican Republic). A discrepant delegation (inter-State).

4. Advisory Opinion CIDH 16/99


Protection of nationals abroad before international justice institutions6
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

Very important contributions:

Amnesty International, the Mexican Commission for the Protection and Promotion of Human Rights, Human Rights Watch/Americas, and the Centre for Justice and International Law, universities, and individuals.

… OC 16/99


Protection of nationals abroad before international justice institutions7
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

Topics: 2002 (Article 64.1 of CADH).

  • The obligation to respect and guarantee human rights and the fundamental nature of the principle of equality and non-discrimination.

  • Applying the principle of equality and non-discrimination to migrants.

  • Rights of undocumented migrant workers.

  • The obligation of States to formulate migration policies in accordance with international human rights protection instruments.

5. Advisory Opinion CIDH 18/03


Protection of nationals abroad before international justice institutions8
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

  • States are under the general obligation to respect and guarantee fundamental rights.

  • Incompliance by States –through any type of discriminatory treatment – with the general obligation to respect and guarantee human rights generates international liability.

  • The general obligation to respect and guarantee human rights is binding for States, irrespective of circumstances and considerations, including the migration status of a person.

…OC 18/03


Protection of nationals abroad before international justice institutions9
Protection of Nationals Abroad before on Protection of the Labour Rights of Migrant WorkersInternational Justice Institutions

  • The migration status of a person may not be used as a justification to deprive this person from enjoying and exercising his/her human rights, including labour rights. The rights are a consequence of a labour relationship.

  • The State is under the obligation to respect and guarantee the labour human rights of all workers.

…OC 18/03


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