VIENNA CONVENTION ON CONSULAR RELATIONS

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2 years ago

This article will provide guidance on Vienna Convention on Consular Relations. As an international treaty, the Vienna Convention on Consular Relations establishes norms for diplomatic ties between independent nations. It formalizes a number of previously unwritten consular norms based on state tradition and numerous bilateral agreements. The pact was ratified by 182 countries and came into effect in 1967 after being adopted in 1963.

Consuls have historically been hired by governments or their citizens to act as representatives at an overseas embassy or consulate. As well as outlining the rights and responsibilities of both the ‘receiving State’ (where the consul is stationed) and the ‘sending State,’ the Convention specifies and enumerates the roles, privileges, and immunities provided to consular officials and their offices (the state the consul represents).

BACKGROUND

The United Nations Conference on Consular Relations took place in Vienna, Austria. The English, French, Chinese, Russian, and Spanish texts are all equally official under the terms of the Convention. The Convention’s preamble specifies that customary international law will remain applicable to issues that are left unresolved. The thirteen duties of a consul are laid out in Article 5. They include ‘protecting in the receiving State the interests of the sending State and its nationals, both individuals and bodies corporate, within limits permitted by international law’ and ‘furthering the development of commercial, economic, cultural, and scientific relations between the sending State and the receiving State.’

The host country may declare a consular employee to be persona non grata at any moment for any cause. The consular employee’s home country must recall them within a reasonable time, or they risk losing their consular immunity. The Convention establishes the inviolability of consular facilities (the host nation may not enter the consular premises and must protect the premises from intrusion or damage).

FEATURES OF THE VIENNA CONVENTION ON CONSULAR RELATIONS

Consular baggage ‘must be neither opened nor detained,’ and a consular courier must never be imprisoned to ensure the consul’s right to communicate with their home nation freely. A foreign national who has been arrested or detained must be informed ‘without delay’ of their right to have their embassy or consulate notified of the arrest, and ‘consular officers shall have the right to visit a national of the sending State who is in prison, custody, or detention, to converse with him, correspond with him, and arrange for his legal representation.’

Article 37 of the Convention requires the host country to ‘without delay’ inform the sending state’s consular offices of any death or appointment of a guardian or trustee over a citizen of the sending state. If a ship flying the flag of the sending state is lost at sea or runs aground ‘in the territorial sea or internal waters of the receiving State,’ or if an aircraft bearing the sending state’s registration is involved in an accident. In contrast, over the territory of the receiving state, consular officers must be notified ‘without delay.’

The Convention guarantees consular immunity. However, not all of the Convention’s language on this topic is consistent with customary international law. While ambassadors are granted extensive ‘personal immunity,’ consular officials and staff only have ‘functional immunity,’ meaning they are immune from the jurisdiction of the receiving state ‘in respect of actions undertaken in the execution of the consular function.’

THE UNITED STATES AND THE VIENNA CONVENTION ON CONSULAR RELATIONS

The United States withdrew from the Optional Protocol to the Convention for the Compulsory Settlement of Disputes in March 2005 after the International Court of Justice decided in favor of the United States in the LaGrand case (2001) and the Avena case (2004).

The Supreme Court of the United States ruled in 2006 that foreign nationals who were not informed of their right to consular notification and access following an arrest could not use the treaty violation to suppress evidence gleaned from police interrogation or to bring legal challenges late in the process, after trial.

The U.S. Supreme Court ruled that the International Court of Justice’s (ICJ) directive that the United States grant ‘review and reconsideration’ to the cases of 51 Mexican death row inmates were not binding domestic law and could not be used to override state procedural default rules that barred further post-conviction challenges. The United States Diplomatic and Consular Staff in Tehran (United States v Iran) was a case brought before the International Court of Justice (ICJ) by the United States against Iran in 1980 in response to the seizure of United States diplomatic offices and personnel in Tehran by militant revolutionaries. The United States later withdrew from the Optional Protocol.

As a multilateral agreement, the Vienna Convention on Consular Relations codifies consular procedures previously controlled by the customary practice and bilateral agreements between States. The United States is among the many nations signed on as parties to the Convention. The United States also accepts the authority of the International Court of Justice (ICJ) to decide disputes between Convention parties over the agreement’s terms since it is a party to the Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes. Paraguay, Mexico, and Germany have all taken the United States to the International Court of Justice (ICJ) over its interpretation of Convention Article 36 in recent years. A foreign individual has the right to contact the consulate office of his or her home country ‘without delay’ after being arrested or imprisoned, as stated in Article 36.

The United States has taken steps to guarantee that federal law enforcement agencies comply with Article 36. Still, there is no federal statute that mandates that states and localities adhere to the Convention’s consular notification requirements.

THE UNITED STATES AND ARTICLE 36

Even so, U.S. federal and state courts rarely grant foreign nationals relief for Article 36 violations. This is typical because state and federal procedural default rules, including federal rules enacted pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), preclude consideration of such claims if they are not raised in a timely manner. Legislative action may be needed if the United States decides to follow the ICJ’s verdict. Since the ICJ ruled that the procedural default rule does not apply to Convention claims, AEDPA may need to be revised to provide for further examination of Article 36 claims. It is also possible that the federal government may pass laws to encourage more state and local governments to follow the Convention’s guidelines. As it stands, the Supreme Court has not ruled on whether or not Congress has the authority to compel state and local authorities to carry out U.S. treaty commitments, and Congress may choose less coercive tactics to ensure state compliance with the ICJ’s verdict.

Additionally, governments have traditionally offered consular assistance to their citizens traveling abroad. Completed in 1963, the Vienna Convention on Consular Relations codified consular procedures that had previously been controlled by customary international law and bilateral agreements between States. The United States ‘has relied increasingly on it as the main foundation for the conduct of [its] consular operations and is one of the many nations that have signed on to the Vienna Convention.

If the host country violates the rights of the ‘sending state’ (the state with a consular office in the host country), the sending state may take action against the foreign consulates that the host country has set up in the sending country in accordance with the Vienna Convention.

According to Article 36 of the Vienna Convention, a foreign citizen who has been ‘arrested or committed to jail or custody awaiting trial or is detained in any other way’ has the right to have his own country’s local diplomatic office informed of his incarceration ‘without delay.’ In such a case, the consular official from the detained national’s home country may ‘converse and communicate with him and… arrange for his legal counsel,’ but only with their consent. These rights ‘shall be exercised in conformity with the laws and regulations of the receiving State, subject, however, to the proviso that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended,’ as Article 36(2) states.

Possible advantages for a detained foreign individual under Article 36’s consular notification procedures include expedited processing and access to legal counsel. If a sending state learns that one of its citizens has been arrested or detained in a receiving state, it may take diplomatic or other measures to guarantee that the detained citizen is treated properly. It’s possible that a consular officer will know more about the ins and outs of the receiving state’s legal system than the detained national himself and will be able to get stronger legal counsel for the arrested person than he would be able to find on his own. If a foreign citizen is arrested and facing criminal charges in the country that has jurisdiction over him, he may benefit from the help of a consular official. A consular officer may be able to help a detained citizen get evidence or witnesses from the sending State to enhance the citizen’s defense against the allegations against him or, in the event of a conviction, to help the citizen argue for mercy in punishment.

The benefits gained by a foreign national via consular access may vary from one state to the next due to the varying levels of protection afforded to non-citizens by those states. For instance, while the United States affords detained foreign nationals in criminal cases the same degree of constitutional protections as U.S. citizens, including the right to a court-appointed lawyer and various other due process protections, other parties to the Convention may not guarantee such protections to detained foreign nationals. As a result, a U.S. citizen jailed in a nation without such safeguards may be put in a more precarious position than a foreigner held in the U.S. because of the lack of access to information about their consular officials.

ARTICLE 36 OF THE VIENNA CONVENTION AND ITS APPLICATION IN U.S. LAW AND JUDICIAL DECISIONS

After first signing the Vienna Convention in 1968, the United States ratified it in 1969. The United States thought the Convention would have only a minor effect on domestic law and practice based on the legislative history surrounding the passage of the Convention. The State Department’s legal adviser testified before the Senate Committee on Foreign Relations on the Department’s understanding of the purpose and impact of the Vienna Convention prior to the Senate providing its advice and consent to ratification.

That the Convention ‘does not have the effect of overriding Federal or State legislation beyond the limits long permitted in existing consular treaties’ was the conclusion reached by the State Department. After deliberating, the Senate Committee recommended that the full Senate approved the Vienna Convention for ratification and forwarded it to the Senate floor with a Report detailing the considerations that led to the Committee’s conclusion. The Committee’s view that the Convention ‘does not modify or impact current U.S. laws or practice’ is the first consideration outlined in the Report. U.S. compliance with Article 36 of the Vienna Convention and court interpretation of Convention obligations in regard to claims for relief brought by foreign citizens who were not informed of their right to contact their country’s consular authorities after their detention are described below.

UNITED STATES COMPLIANCE WITH THE VIENNA CONVENTION.

The Department of Justice (DOJ) adopted regulations requiring consular notification of arrests of foreign nationals in 1967. These regulations state that ‘in every case a foreign national is arrested, the arresting [federal officer] shall inform the foreign national that his consul will be advised of his arrest unless he does not wish the such notification to be given.’ In addition, the federal agent ‘must notify the closest U.S. Attorney of the arrest and the apprehended person’s requests about consular notification.’ All detained foreigners must be informed of their right to contact their home embassy by immigration officers. These rules were implemented in accordance with many bilateral agreements two years before the United States ratified the Vienna Convention. Even though the Vienna Convention was not adopted until two years after these laws went into effect, some courts have held that it served as the foundation for them.

The Vienna Convention does not differentiate between the notification requirements due by federal, state, or municipal authorities within a receiving State. Therefore, U.S. obligations under Article 36 are not restricted to measures conducted by federal officials. No federal law or regulation has been adopted to compel state or local law enforcement officials to notify foreign nationals of their right under Convention Article 36, possibly due to federalism concerns, even though federal law enforcement officials are required by regulation to act in a manner compliant with the Vienna Convention. On the other hand, the State Department has periodically sent manuals, pocket cards, and training tools to state and local authorities outlining the consular notification responsibilities required under the Vienna Convention in an effort to assure state and local compliance with Article 36.

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Sources

1. From 4 March to 22 April 1963, the Convention was approved there on 24 April 1963

2. Article 36 deals with interactions between consular officials and citizens of the sending state via communication. ‘consular officials should be able to contact with nationals of the sending State and have access to them,’ as the Convention states.

3. The duties and authority of honorary consular officials are outlined in Articles 58-68.

4. In Article 40, it is stated that ‘the receiving State should treat consular personnel with due respect and shall take all required means to avoid any harm on their person, freedom, or dignity.’

4. The majority of UN members, as well as UN observer nations, including the Holy See and the State of Palestine, are among the 182 governments that have ratified the Convention.