On Friday, 16 May, France filed an application, which is written solely in French, before the International Court of Justice (ICJ or Court) against the Islamic Republic of Iran, alleging the violations of consular access 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 application, France requested the Court to declare that:
de dire que l’Iran a manqué, et continue de manquer, à ses obligations au titre de l’article 36 de la Convention de Vienne sur les relations consulaires du 24 avril 1963. (‘Iran has failed, and continues to fail, to fulfill its obligations under Article 36 of the Vienna Convention on Consular Relations of 24 April 1963.’) (para 39)
This marks the fifth case brought before the ICJ concerning alleged the violations of the right of consular access as enshrined in Article 36(1) of the Vienna Convention on Consular Relations 1963 (the Convention) (here, here, here, and here). In fact, Article 36(1)(b) had a fraught genesis (para 143), and the contentious debates during its negotiations have laid the groundwork for the disputes seen today. Although there was general agreement that the receiving state must ensure consular access for detained foreign nationals, intense disagreements emerged regarding the scope of this obligation, including when the receiving state must notify the sending state of the detention of its national (para 35 seq). The disagreements were so intense that they were about to jeopardize the entire Convention. It was only two days before the conclusion of negotiations that the delegates reached a fragile consensus on the text of the Article 36(1)(b) (para 146) .
Since its adoption, the ICJ has played a prominent role in interpreting and clarifying the ambiguities embedded within this provision. In this case, regarding its application, France has invoked three specific breaches of the right to consular access, offering the Court yet another opportunity to articulate the scope of the rights and procedures of the Convention. These three alleged breaches concern: the failure to notify without delay the arrest of a foreign national (para 31), the right to freely choose legal representation (para 10, para 16, and para 17), and the nature and frequency of consular contact with detained nationals (para 8). This post focuses on the first of these claims, aiming to elucidate some structural ambiguities within Iran’s criminal justice framework and to offer tentative projections about how the Court may respond to such claims.
The International Rule: The Ambiguity Concerning ‘Without Delay’ Notification
In its application, France claims that Iranian authorities informed the French government of detention ‘plus de deux mois’ (more than two months) after the authorities detained the French nationals (para 31). Accordingly, if France’s claim proves to be accurate, Iran will have violated its obligation, embodied in Article 36(1)(b) of Convention, to notify without delay the French authorities of arrest of its nationals. It is doubtful whether the phrase ‘without delay’, however interpreted, could justify a delay of as long as two months. The (repetitive) key question, however, is: when exactly does the obligation to notify arise?
The primary purpose of affording consular services to detained nationals is the protection of their ‘inalienable rights‘, among which the right of ‘due process’ and some other guarantees enshrined in Article 14 of the International Covenant on Civil and Political Rights stand at the apex (para 116). Therefore, the sending State must be informed of the detention ‘without delay’ and before the detainee’s rights are irreparably infringed (para 419). The phrase ‘without delay’ appears three times in Article 36(1)(b) of the Convention:
The competent authorities of the receiving State shall, without delay, inform the consular post of the sending State… Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
As the ICJ noted in the Avena case: ‘there is no suggestion in the travaux that the phrase ‘without delay’ might have different meanings in each of the three sets of circumstances… in Article 36, paragraph 1(b).’ Thus, the term ‘without delay’ carries a consistent meaning across all three instances in Article 36(1)(b).
To better understand the temporal dimension of the phrase ‘without delay’, it is helpful to consider how this phrase has been construed before different forums. The Inter-American Court of Human Rights (the IACHR), in its famous Advisory Opinion OC-16/99 of October 1, 1999, stated that notification must be made’at the time the accused is deprived of his freedom, or at least before he makes his first statement before the authorities.’ (para 106) However, during the drafting of Article 36(1)(b), there was considerable divergence among states. Proposals ranged from allowing notification up to one month after arrest (as suggested by Germany) to requiring immediate notification upon arrest (as advocated by the Soviet Union) (pp 47-48). Nevertheless, the broad interpretation reflected in the IACHR’s opinion is, at best, impractical in many legal systems. In practice, the obligation to notify without delay arises when the detaining authorities, in the ICJ’s opinion, ‘realized that the person is a foreign national, or once there are grounds’ to so conclude. (para 63) Consequently, the ICJ, in Avena, rejected the IACHR’s strict standard, stating that: ‘without delay’ is not necessarily to be interpreted as ‘immediately’ upon arrest (para 87). Rather, the obligation to notify materializes once the detaining authorities are aware—or have reason to believe—that the individual is a foreign national (para 88).
In LaGrand, the United States sought to create temporal flexibility by distinguishing between arresting authorities and those ‘competent authorities’ responsible for notification under Article 36(1)(b) (para 16). Yet the ICJ did not conclusively determine whether such a differentiation is permissible under the Convention for the purposes of triggering the notification obligation. However, in the Jadhav case, the Court rejected arguments that the obligation to notify could be suspended merely because the detainee was accused of espionage—precisely the justification invoked by Iran in the case of Kohler and Paris.
When we recall that the Court in the Avena case deemed a five-day delay in notification to the consular post (para 106 and para 112) and, in the Jadhav case, an approximately three-week delay in notification |(para 77) were unjustifiable, it becomes clear that delays exceeding these durations are hardly justifiable. Thus, if France’s assertion proves accurate, it would be exceedingly difficult for Iran to argue that the competent authorities were unaware of the detainees’ foreign nationality.
The Domestic Rule: A Familiar Pattern of Procedural Default
Note 2 to Article 236 of Iran’s Code of Criminal Procedure ostensibly lays out the process for notifying a foreign government of arresting its nationals—albeit in vague terms. The provision states:
In the event that a foreign national is prosecuted and requests so, the investigating judge shall immediately inform the General Prosecutor of the individual’s identity and the nature of the charge, in order for the necessary measures to be taken, and for the relevant authorities to be informed in accordance with applicable regulations.
While Article 36(1)(b) of the Convention clearly predicates the notification obligation on arrest, commitment to custody, or imprisonment of a foreign national, Iranian law triggers the process upon the mere initiation of prosecution. However, unlike the Convention—which mandates direct communication with the foreign consular post—the Iranian rule envisions a multi-tiered approach: the first notification is to the General Prosecutor, followed by communication with ‘relevant authorities,’ whose identity remains ambiguous. Crucially, whereas Article 36(1)(b) of the Vienna Convention explicitly requires that the ‘person concerned’ be informed of their consular rights, the corresponding Iranian provision is silent on this point. As the ICJ emphasized in Avena, the failure to inform a foreign national 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 Responsibility of State requires wrongful state ‘to cease’ the wrongful act and ‘to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.’ This raises the question: if Iran is indeed found to have breached Article 36(1)(b), could the guarantee of non-repetition or cease the wrongful act entail a requirement to amend Note 2 of Article 236 of its Code of Criminal Procedure? Acconciamessa has argued that requiring the wrongful state to repeal domestic legislation that is inconsistent with its international obligations falls within the powers of international courts and constitutes one of the legal consequences of a breach of an international obligation. However, the European Court of Human Rights has recently rejected this view, emphasizing the declaratory nature of its decisions (para 122). This position appears to align with the findings of the ICJ, which will be examined in the following paragraph.
In fact, a similar concern arose in the LaGrand case, where Germany argued that the procedural default rule in the U.S. legal system—which barred raising certain claims at the federal level if they had not been presented at the state level—effectively prevented foreign nationals from benefiting from the Convention’s protections. Germany requested that the Court order the U.S. to offer guarantees of non-repetition (para 81). The Court responded that the procedural default rule ‘as such’ was not ‘inherently inconsistent’ with the US’ international obligation, but rather
‘the circumstances in which the procedural default rule was applied’ were at fault (para 125). Nonetheless, the Court leaves the choice of the appropriate method for reviewing the convictions to the US itself (ibid).
Unlike the U.S. procedural default rule, it appears that Note 2 of Article 236 of Iran’s Code of Criminal Procedure, as such, is not compatible with Iran’s international obligations under Article 36(1)(b). Nevertheless, given the Court’s inherent judicial conservation, it is unlikely that the ICJ will extend its reasoning significantly beyond the principles articulated in LaGrand and Avena. In other words, should this provision be raised in the pleadings, the Court may well conclude that Note 2 does not conform to Iran’s obligations—but it will likely leave it to Iran to determine the specific measures necessary to bring its domestic framework into conformity with the Convention.
Siamak Karimi is a former researcher at the Hague Academy of International Law and a visiting professor at the University of Tehran. His research interests include the unilateral acts of states, the peaceful settlement of international disputes, and international investment law.