Rights of consular access: are they being eroded?

Friday 30 January 2026

International law promises a simple, humane proposition: when a state detains a foreign national, it must at least permit that person to speak to her country’s consular officers. The guarantee is not sentimental. It exists because detention is the moment at which a citizen abroad becomes most vulnerable to misunderstanding, coercion, language barriers and procedural shortcuts. The contemporary anxiety is that this floor of protection is lowering, not because the rules have been rewritten but because powerful states increasingly treat them as optional when the political incentives point the other way.

The immediate catalyst for this concern is Iran’s detention of a vessel and the ensuing dispute about consular contact for Indian seafarers. India’s public statements and maritime reporting describe repeated requests for access in the weeks after detention, with access only later being granted to some of the crew after sustained diplomatic pressure. Even in this comparatively narrow consular controversy, the pattern is familiar: a denial or delay, a period of informational darkness for families and lawyers, then a partial accommodation once the political temperature changes. That arc, repeated across multiple theatres, has fostered a perception that consular rights are no longer treated as legal obligations that bite immediately, but as bargaining chips that may be released later.

The legal baseline remains clear. Article 36 of the Vienna Convention on Consular Relations (VCCR) requires the detaining state to inform the foreign national of her right to consular assistance and, if she so requests, to notify the consulate and facilitate communication and visits. The International Court of Justice has repeatedly treated these duties as genuine treaty obligations, not diplomatic courtesies. The Court’s judgment in Jadhav (India v Pakistan) reaffirmed that denial of consular access breaches the Convention and that the remedy must be effective in practical terms, not merely theoretical. 

Yet the modern problem is not doctrinal confusion. It is compliance in the face of incentives that reward non-compliance. In many contemporary detentions, the detaining state wants one of three things.

First, leverage. “Hostage diplomacy” has become a term of art because it captures a state practice that is difficult to describe more politely: detentions that appear to be designed to extract concessions rather than to vindicate ordinary criminal law. Iran and Russia are frequent focuses of this accusation, particularly in European political discourse. France has publicly framed the long-running detention of French citizens in Iran as a breach of consular obligations and has prepared or pursued international litigation to enforce VCCR rights. If detention is leverage, consular access is a liability, because it reduces isolation, curbs narrative control and may help the detainee organise legal representation. Denial of access therefore becomes part of the pressure.

Second, opacity in national security cases. States increasingly label detentions as espionage, terrorism or threats to state security. Once that label is affixed, the detaining authorities often behave as if ordinary procedural guarantees are suspended. The VCCR does not contain a general “national security” escape clause that allows a state to refuse access altogether, but practice shows that some states behave as if it does, at least temporarily. The very existence of a treaty obligation does not stop a security service from delaying visits, restricting communication, or funnelling contact through controlled channels.

Third, claims about dual nationality or domestic status. Russia, for instance, has been accused by the United States of blocking consular access to detained dual US-Russian citizens, a position reflected in US government travel advisories and in reporting about individual cases. The logic, from the detaining state’s perspective, is that dual citizens are “really” its own citizens and therefore not entitled to foreign consular involvement. Whatever the moral appeal of that argument to a sovereign state, it sits uneasily with the protective purpose of consular law, particularly where the detaining power’s domestic legal system is itself the source of risk.

If these are the incentives, are we witnessing an erosion of protection? In one sense, no. The law has not collapsed. The VCCR remains widely ratified, and the ICJ’s jurisprudence supplies a coherent account of what compliance requires. Moreover consular protection is sometimes honoured even in politically fraught cases, or honoured after delay. The Indian seafarers detained in Iran reportedly did obtain consular contact after sustained pressure and litigation-related attention. This matters because it suggests that the norm still constrains behaviour, even if it does so imperfectly.

In another sense however, the protections are being eroded in practice, by three interacting trends.

One trend is the normalisation of delay. The VCCR model is immediate notification and timely access. In modern cases, delay is becoming routine. Even where access is ultimately granted, the early phase of detention is often the most coercive and the most consequential: the first interrogations, the first signatures on statements, the first charging decisions and, sometimes, the first public “confessions”. If consular contact arrives weeks later, the protective function has already been partly defeated. That is not simply a procedural peccadillo. It changes outcomes.

A second trend is the strategic use of reciprocity. When states violate consular norms, they often justify it as retaliation. In the Gershkovich case, for example, Russia’s denial of a US consular visit was reported as being framed as retaliation for US visa decisions affecting Russian journalists. This is international relations logic rather than treaty logic. It treats consular access as a favour that may be withdrawn to punish unrelated conduct. Once states speak that language, the VCCR’s promise of a depoliticised minimum standard begins to sound like an aspiration rather than an operational rule.

A third trend is the collapse or constriction of ordinary consular infrastructure. Where diplomatic relations are severed, embassies reduced, or consulates closed, consular protection can fail even without an explicit refusal. Venezuela’s diplomatic ruptures and internal repression illustrate how quickly access to consular services can become structurally difficult, both for nationals inside a state and for foreigners who need their governments to intervene. The VCCR assumes a functioning consular channel. Modern geopolitics increasingly sabotages that assumption.

The result is that international law’s formal protections are not disappearing, but they are becoming more unevenly distributed. For citizens of powerful states, consular denial may trigger publicity, sanctions, prisoner exchanges or litigation. For citizens of weaker states, the same denial may pass with little consequence. This unevenness is itself corrosive: it teaches detaining states that treaty obligations are, in practice, enforced selectively.

So what is to be done, if we accept that practice is drifting? There are legal and political responses, but none is a silver bullet.

Litigation has symbolic and sometimes practical value. France’s turn to the ICJ over Iran signals that consular denial can be reframed as a justiciable breach rather than an unfortunate diplomatic incident. The Jadhav judgment shows that, at least in principle, ICJ proceedings can vindicate consular rights and specify remedies. But courts move slowly, and the detainee lives in the present tense. The greater value may be long-term: building a body of precedent that makes denials more reputationally expensive.

Domestic parliamentary and public scrutiny can also matter, especially in democracies where consular policy is answerable to legislators. The United Kingdom’s parliamentary discussions explicitly recognise the vulnerability of nationals abroad and the importance of consular services, even if the state’s power to compel access is limited. Yet scrutiny can cut both ways: publicity can harden the detaining state’s stance if it decides the detainee is more useful as a symbol of defiance.

Finally states can attempt to harden the norm through collective action. When a detaining state learns that denial of access to one country’s citizen will trigger coordinated consequences from a group of states, the incentives shift. The risk is escalation. The promise is that consular access returns to being a baseline rather than a concession.

Where does that leave the larger question: are protections being eroded? The honest answer is that the legal rule is stable, but its operational force is weakening in certain categories of case that are becoming more frequent: national security detentions, detentions in states that embrace coercive bargaining, and detentions entangled with dual nationality. The VCCR remains on the books, but the lived experience of detained citizens increasingly depends on power politics, not merely on legal entitlement.

International law has always relied upon a mixture of consent, reciprocity and reputation. What has changed is the contemporary willingness of some states to treat reputational damage as a price worth paying, and the growing taste for transactional diplomacy in which human beings become tokens. Against that tide consular law still matters, perhaps more than ever, but it is no longer self-executing. It must be defended, asserted quickly, and enforced collectively, or it will persist as a formal promise with a shrinking practical reach.