Consular Notification and Access
By Carmen Hills, M.P.S.
Every day, law enforcement officers in the United States execute thousands of arrests. Most of them appear routine. The arresting officer informs individuals they are under arrest, makes them aware of the charges they face, and advises them of their right to speak with an attorney. But, what about the arrest of a U.S. citizen abroad? How would that differ?
The 1963 Vienna Convention on Consular Relations (VCCR) authorizes protection of the rights of people arrested or detained in a foreign country.1 The VCCR creates a legal obligation—when individuals are arrested or held, suffer serious injury, or die within a country other than that of their citizenship—for the host country to provide consular notification and access.
For consular notification, officials define “detention” as any situation in which a foreign national’s ability to communicate with or visit consular officers becomes impeded as a result of actions by government officials limiting that person’s freedom. The treaty also includes special provisions for minors and incapacitated adults.
Article 36 of the VCCR governs consular notification and access in the United States and numerous countries.2 The U.S. Constitution, Article 6, indicates that “…all treaties…shall be the supreme law of the land.”3 The VCCR remains a treaty and, as such, stands as a reciprocal agreement. Therefore, consular notification and access obligations fall under both U.S. and international law.
The United States must fulfill its responsibilities if it expects other countries to do likewise. The best guarantee for American citizens abroad to obtain consular notification and access remains for officers in the U.S. to practice personal diplomacy by adhering to those requirements.
Often, consuls provide the only means for someone detained to communicate with family, access medications, fulfill dietary needs, or attain an understanding of their legal rights in a language they understand. Failure to follow consular notification and access procedures could result in damaging penalties.
Ms. Hills serves as public affairs officer in the U.S. Department of State, Bureau of Consular Affairs, in Washington, D.C.
Consequences and Assistance
Legal challenges may occur in lack-of-notification cases. Courts must determine the best way to address them. Providing proper consular notice can help eliminate problems.
The U.S. Department of State, Bureau of Consular Affairs, provides a variety of resources and services (e.g., aiding with development of standard operating procedures and answering questions regarding official policies) to assist federal, state, and local law enforcement. The staff also develops and distributes materials on consular notification and access throughout the country via training and outreach programs.
The VCCR obligates American authorities to follow certain procedures. When making an arrest, law enforcement officers should identify the citizenship of detainees by asking and checking for identifying documents, such as passports or green cards.
The provisions of the VCCR apply to anyone arrested or detained in a foreign country, which means consular notification must be provided to all foreign nationals residing—legally or illegally—in the United States. The VCCR states that notification should occur “without delay.”4 Whether requested or mandatory, officers should notify the embassy or consulate within 72 hours of detention. The U.S. Department of State’s Consular Notification and Access webpage provides contact information for all foreign embassies and consulates in the United States.5
When police identify arrestees as foreign nationals, officers first should ask them whether or not they want their embassy or consulate notified of the arrest. However, if police officers detain citizens from any of the 57 countries with bilateral agreements to provide mandatory notification, officers must contact the consul and inform any detainees of the notification.
It seems simple to notify the consulate for all foreign persons arrested; however, law enforcement officers must ask citizens from nonmandatory reporting countries prior to making contact. The safety of individuals and their families at home must be considered when foreign nationals seek refuge. Authorities should not divulge a person’s status as an asylum seeker, even if the individual comes from a mandatory notification country.
Law enforcement personnel may request assistance from the U.S. Department of State if language barriers occur when asking arrestees if they want their consuls notified. Officers should document foreign nationals’ responses and maintain the information for official files. Record keeping proves essential for providing evidence in foreign government inquiries.
Officials recommend sending a fax to the embassy or consulate because of the 24-hour availability and the receipt indicating that notice was received. Notification also may be made via telephone or e-mail if necessary. When making phone contact, authorities should record the date, time, and name of the person spoken to at the embassy or consulate.
The VCCR also obligates law enforcement personnel to provide consular access. Consuls must be able to contact and freely communicate with detained citizens. Honorary consuls are dual nationals or permanent legal residents who perform some consular duties under authorization from a foreign government. A consul’s status can be verified by the embassy or consulate.
Consular officers are commissioned by foreign governments to serve as diplomats abroad. These individuals carry identification issued by the U.S. Department of State. Both consuls and consular officers should be allowed to access their citizens who are in custody.
Consuls may call, write, or visit their people, depending on the detaining country’s customs and available resources. When visiting detainees, consuls remain subject to the rules of the facility. They must abide by safety procedures, including security checks and searches.
The U.S. Department of State asks that foreign consuls receive the same courtesy and treatment expected by an American consul abroad. If possible, consuls should communicate with their citizens in private; although, in certain circumstances, especially when there are safety concerns, law enforcement may monitor meetings between consuls and detainees.
If a foreign national does not want to meet with a consul, an embassy or consular visit still should occur so the consul can confirm this choice personally. Consular access must be provided if the foreign national decides at a later time to meet with the consul.
Consuls often prove useful to law enforcement. Although not authorized to act as attorneys, consuls may assist foreign nationals with seeking legal representation and provide guidance regarding the legal process. They can observe trials and liaise with both the defense and prosecution to assist detainees with understanding information.
Additionally, consuls can monitor the foreign national’s case and provide information or contact family or friends. They also may supply detainees with food, medicine, reading materials, or other necessities as allowed by the law enforcement facility.
U.S. consular officers and consuls play a vital role in assisting American citizens overseas. They provide myriad services, such as assisting U.S. nationals arrested in foreign countries. Additionally, these emissaries monitor the health and well-being of Americans incarcerated abroad and help them retain legal counsel.
For example, an American couple decided to take a vacation to Zimbabwe. The wife became excited by seeing lions in person and asked her spouse to take a photograph. Immediately after taking the photo, armed guards approached the husband, confiscated the camera, and handcuffed the individual.
The wife pled with the guards to explain the problem; however, she did not understand their response or know the language. As guards took the husband away, the spouse realized they traveled to an overseas country where they are subject to unfamiliar laws and a foreign criminal justice system.
What could they have done? Customs vary from country to country, but a U.S. citizen under arrest abroad has the right to receive assistance from American consular officers and consuls. Although, to obtain help, individuals must know the need and entitlement exist.
Consular notification and access plays an important role in strengthening bilateral relationships between the United States and other countries. It involves collaborative partnerships among law enforcement communities, foreign governments, and the U.S. government. The U.S. Department of State desires to foster a better understanding of consular notification and access rights and serves as a bridge between foreign consuls and law enforcement professionals throughout the United States.
For additional information Ms. Hills may be contacted at HillsCC@state.gov.