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Consular Notification

Senate Hearing on Consular Notification Compliance Act in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In the United States, federal, state and local law enforcement officials have in most cases been upholding these obligations for decades…

Overseas, other countries likewise respect the U.S. citizens' consular rights. …When foreign governments fail to provide us with notification or refuse the U.S. requests to visit and assist an imprisoned American, we remind them of their obligations under the Vienna Convention, and in most cases, this is enough to secure access.

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We find these protections particularly critical for the men and women serving in the U.S. Armed Forces, and their overseas dependents. The Department of Defense considers consular access very important for U.S. service members and their families, and the Department expects its personnel who are detained abroad to be able to benefit from a range of assistance from the U.S. consulates. In addition, it is in the Defense Department's interests for foreign military personnel who may be arrested or otherwise detained in the U.S. to receive prompt access to their own consulates, in order to ensure that reciprocal protections are also afforded to U.S. personnel who may be detained abroad.

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Senators, each of you has faced the traumatic experience of having a constituent detained overseas. In such circumstances, Americans often have nowhere to turn but the consular system. When a U.S. citizen finds him or herself in a foreign government's custody, a consular officer is often the best, and sometimes only, resource that citizen has as he or she navigates a foreign legal system. These consular services are extensive and indispensable. Consular officers provide basic information about a country's legal system and give valuable information on how to find a lawyer. Consular officers conduct regular visits and report back to Washington any mistreatment or poor conditions of detention. They monitor the mental and physical health of detained Americans, communicating concerns about an individual's well-being not just to the detaining authority but also at a diplomatic level. Consular officers are also frequently called upon by the U.S. citizens to convey messages to the detained American's family members, legal counsel, or congressional representatives back home. They work to ensure that the U.S. citizens have access to food, medicine, or religious items as needed. When an American is put on trial in a foreign country, consular officers often attend the trial and seek to ensure that the proceedings are being conducted in a manner that is fair, transparent, and understandable to the defendant. And through close monitoring by the U.S. consular officers of local proceedings involving U.S. citizens arrested overseas, the U.S. government may determine that detention is unjust or illegal, and may call on the detaining government to release the U.S. citizen.

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We find these services especially critical in countries that do not respect due process of law and fundamental rights. In many countries a defendant has no protections equivalent to the U.S. own from government searches and seizures, no guarantees against cruel and unusual punishment, and no right to a lawyer. But in virtually every country in the world when Americans are imprisoned, the same treaties to which we are a party ensure that they have a right to see their consular officer.

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…Americans who have recently been detained in such countries as North Korea, Iran, Syria, Pakistan and Libya can tell you from their own experience how indispensable consular notification and access is for the protection of U.S. citizens detained overseas.…

Consular access can be particularly important in countries where we do not have diplomatic relations, as in North Korea where the Swedish Embassy represents the U.S. interests. In November 2010, U.S. citizen Eddie Jun was detained by North Korea. After North Korea finally identified Mr. Jun as a detainee, Swedish diplomats were able to visit Mr. Jun six times and inform the U.S. government that he was being well cared for. At U.S. request, Swedish diplomats continued to ask for regular consular access to Mr. Jun, until his release in May 2011.

In short, we strive to ensure domestic compliance with the U.S. consular obligations not from altruism, but from keen self-interest. If we fail to honor the U.S. consular obligations at home, we can expect your constituents to pay the price overseas.

Senate Hearing on Consular Notification Compliance Act in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Second, this legislation is not just vital for the protection of Americans abroad. Ensuring compliance with the U.S. legal obligations is essential to the U.S. foreign relations and close bilateral relationships. We demand consular notification and access from other countries and in return, we assure them that we will give it ourselves. In most cases, this system works remarkably well. But despite concerted efforts, the U.S. record has not been perfect. In certain cases, this system has broken down, and foreign nationals have proceeded through the U.S. legal system—at times facing serious charges—without being informed that they can receive the assistance of their consulate, in clear violation of the U.S. treaty obligations. The United States has been publicly called to account for these shortcomings in several high-profile cases, including the Avena case, in which the International Court of Justice (“ICJ”) found the United States to have violated its Vienna Convention obligations with respect to 51 Mexican nationals who were convicted and sentenced for capital crimes without being informed that they could receive the assistance of their consulate, and ordered that the U.S. judicially review their cases to determine whether the individuals were prejudiced by the violation.

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The Bush Administration went to significant lengths to try to secure compliance with the Avena judgment. the U.S. ongoing failure to comply has placed great strain on the U.S. relationship with Mexico; Secretary Clinton has stated that the U.S. relationship with Mexico is undoubtedly one of the most important bilateral relationships we have.…

Mexico has stressed on numerous occasions, however, that U.S. compliance with the U.S. consular treaty obligations is a priority issue on the bilateral agenda and a matter of significant concern to the Mexican public, and that the U.S. non-compliance could seriously jeopardize the ability of the Government of Mexico to continue working collaboratively in these areas. We need swift enactment of the bill before you to resolve the U.S. outstanding obligations under the Avena judgment, to reaffirm the U.S. commitment to the U.S. consular notification treaty obligations, and to remove this longstanding obstacle in the bilateral relationship.

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The foreign relations implications of this legislation, moreover, reach well beyond Mexico. Other essential U.S. partners, including the United Kingdom, the European Union, Brazil, Spain, and Switzerland, follow this issue closely and have repeatedly and forcefully called upon the United States to fulfill these obligations, often at high levels. As time has passed, calls for U.S. compliance have become more vociferous. As anyone who has worked in diplomacy understands, such objections can impair the U.S. ability to advance U.S. national interests in the U.S. bilateral and multilateral relationships in many concrete ways across a spectrum of law enforcement, security, economic, and other concerns. The benefits that will flow from enactment of this legislation, and the continuing harm that will result if it is not passed, will not be limited to the consular sphere but will be felt across a range of issues that are critical to the U.S. national interest.

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Third, enactment of this legislation is essential to the U.S. reputation as a nation that complies with the rule of law internationally. the U.S. treaties are critical to protecting U.S. sovereign interests. U.S. treaties protect the U.S. diplomats and government officials overseas, allow us to secure extraditions for the U.S. own law enforcement purposes, prevent other states from proliferating nuclear, chemical and biological weapons and from trafficking in certain weapons, secure international cooperation to combat drug trafficking, and facilitate the U.S. businesses' international economic relationships. We are constantly negotiating new agreements to advance fundamental U.S. interests and insisting that other states comply with treaty commitments to us that they have already made.

In this increasingly interdependent world, the United States simply cannot afford to have the U.S. partners at the negotiating table or those nations whom we ask to fulfill their own legal obligations question the U.S. own commitment to the rule of law. When we do not comply with the U.S. obligations, we lose credibility in the U.S. insistence that other countries respect theirs. Enactment of the Consular Notification Compliance Act will send a strong message to valued international partners that the United States takes seriously its obligations under the Vienna Convention.

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After the Avena decision was handed down, recognizing the important consequences of the decision for the safety of Americans overseas, President Bush took the extraordinary step of directing state courts to give the ICJ judgment domestic legal effect. Although the U.S. Supreme Court determined in Medellín v. Texas, 552 U.S. 491 (2008), that this effort was constitutionally insufficient, Chief Justice Roberts' opinion for the Court recognized that judgment as a binding international legal obligation, and agreed that the United States' interests in observance of the Vienna Convention, in protecting relations with foreign governments, and in demonstrating commitment to the international rule of law through compliance with that judgment were “plainly compelling.” Medellín, 552 U.S. at 524. He further explained that this compliance could be secured by means of legislation. Picking up where the last Administration left off, this Administration has worked diligently to find the legislative solution the Court recommended. The Consular Notification Compliance Act was developed in close cooperation with the State and Justice Departments, in order to secure narrow, carefully crafted legislation that facilitates the U.S. compliance with the U.S. current and future consular notification and access obligations, but also takes into account important interests in facilitating normal law enforcement operations and criminal proceedings….

We consider compliance with these obligations so vital, and the harm from noncompliance so irreparable, that the United States requested that the Supreme Court delay the execution of Humberto Leal García, a Mexican national who was subject to the Avena judgment and whose execution without affording him the hearing provided by this legislation would violate the U.S. legal obligations. In denying the request, the Supreme Court made clear that Congress is the appropriate body to take action to bring us back into compliance with the U.S. obligations. By so saying, the Court left no doubt that Congress can solve this lingering problem, once and for all, by passing this legislation now, before another execution of an individual covered by Avena takes place, and causes further damage to the U.S. reputation in this area.

Senate Hearing on Consular Notification Compliance Act in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On July 27, 2011, several Executive Branch officials testified at a hearing before the Judiciary Committee of the U.S. Senate on the CNCA. The testimony of Under Secretary of State Patrick Kennedy is excerpted below (with footnotes omitted) and includes a statement by Secretary Clinton. The full text of Under Secretary Kennedy's statement is available at (internet link) state.gov/m/rls/remarks/2011/169182.htm. All witness statements from the hearing can be found at (internet link) judiciary.senate.gov/hearings/ hearing.cfm?id=3d9031b47812de2592c3baeba62c686d. The testimony of Deputy Assistant Attorney General Bruce Swartz at the hearing is also available at (internet link) judiciary.senate.gov/pdf/11-7-27%20Swartz%20Testimony.pdf and the testimony of former Legal Adviser John Bellinger is available at (internet link) cfr.org/international-law/fulfilling-treaty-obligations-protecting-americans-abroad/p25562.

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… I appreciate the opportunity to testify today on the proposed Consular Notification Compliance Act. We need swift enactment of this bill to ensure the U.S. ability to protect the U.S. own American citizens who are detained in a foreign country, to preserve vital international relationships, and to honor the U.S. binding treaty obligations.

Secretary Clinton has asked me to underscore that she vigorously supports this bill. She has submitted a statement, which you have before you, that is appended to my written testimony.

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The protection of U.S. citizens abroad ranks among the Secretary's and the Department's absolute highest priorities. Senators, all of you have constituents who travel and live overseas. Your constituents are among the 4.5 million Americans who live abroad, the estimated 60 million who traveled abroad last year and the 103 million who hold passports—all of whom depend on consular protections, as much as they depend on passports and visas, to ensure their safe passage through foreign countries. To protect Americans in foreign custody, the Vienna Convention on Consular Relations—a binding U.S. treaty—mandates three simple rules: “ask, notify, and allow access.” Arresting authorities must first ask detained foreign nationals if they want their country's consulate notified; if requested, must notify the consulate; and, must allow access if the consulate seeks to provide assistance. Thus, the U.S. ability to secure safe worldwide travel for the millions of Americans who live, work, study, and vacation abroad depends vitally on all countries granting mutual respect to the protective rules in the Vienna Convention.

Mr. Chairman, some have asked “why pass this bill, and why pass it now?” For three reasons: to preserve reciprocal treatment for U.S. citizens detained overseas, to protect the U.S. vital foreign policy interests, and to maintain the U.S. reputation as a country that values and respects the rule of law.

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First, the Consular Notification Compliance Act is essential to ensuring that we will be able to protect American citizens. …In 2010 alone, consular officers conducted more than 9,500 prison visits, and assisted more than 3,500 Americans who were arrested abroad. But the United States cannot ensure that it will be allowed consular access to the U.S. citizens abroad—to provide information on foreign legal systems, to facilitate communication with families, and to provide needed medical assistance—unless it ensures that foreign governments have the same access to their citizens detained here. We strive to ensure U.S. compliance with consular notification because of the U.S. strong interest in ensuring that other countries comply with their obligations with respect to the U.S. citizens.

Department of State Consular Notification and Access Manual

In relation to the international law practice and Department of State Consular Notification and Access Manual in this world legal Encyclopedia, please see the following section:

Privileges, Immunities

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Foreign Sovereign Immunities Act

. Note: there is detailed information and resources, in relation with these topics during the year 2011, covered by the entry, in this law Encyclopedia, about Definition of “foreign state” in the FSIA