Us Department of State Consular Notification and Access Manual

Department of State Consular Notification and Access Manual in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In September 2010, the Department of State issued the third edition of its manual entitled Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officers to Assist Them (“Consular Notification and Access Manual”). see this world legal encyclopedia in relation with the year 2010 at 13-22. In 2011, the Executive Branch continued to emphasize the importance of the Consular Notification and Access Manual in enhancing compliance with the Vienna Convention on Consular Relations (“Vienna Convention” or “VCCR”). Excerpts follow from remarks by State Department Legal Adviser Harold Hongju Koh at a Consular Notification and Access Open House held February 8, 2011. The full text of the remarks is available at (internet link) state.gov/s/l/c8183.htm.

Developments

I'm especially pleased today to be able to announce the release of the third edition of the Consular Notification and Access Manual, a publication that anchors…efforts…to expand awareness by U.S. law enforcement about what to do to comply with the Vienna Convention on Consular Relations—the VCCR—and other consular treaties.

Details

For centuries, a core responsibility of consular officers has been to protect the rights and security of their nationals living and traveling abroad, especially those in vulnerable situations, such as those who find themselves in the custody of a foreign government and face the prospect of navigating an unfamiliar legal system. The customary right to freedom of communication between consuls and their detained nationals was codified in Article 36 of the VCCR in three basic rules: authorities must ask the detainee “without delay” if he or she wants to have the consulate notified; notify the consulate if so; and allow consular access if the consulate requests it. These rules have since been widely applied, and in the U.S. view they constitute customary international law, binding even on the small number of countries that have not yet joined the VCCR.

More about the Issue

The text of the VCCR itself leaves many critical questions unanswered, such as what it means to notify “without delay.” The international legal obligations codified in Article 36 are exceptional in that it is not the national government, but each individual law enforcement officer in every state and county across the country—almost a million people—who are called upon to implement the rules in actual cases day after day, usually without the federal government ever knowing about the case or needing to get involved. And while compliance is no simple task for any country, law enforcement officers in the United States confront a rather unique set of circumstances. First, few other countries host the volume of foreign nationals that we do, spread across every corner of the country. Second, America is a melting pot and its citizenry is made up of people of all different backgrounds and cultures. Law enforcement cannot rely on things such as appearance, skin color, or even non-fluency in English as an indication that the person they've arrested is a foreign national. Even explicitly asking each and every arrested person whether they're a foreign national doesn't always solve the problem, because some do not wish to disclose their foreign nationality, and some may not even know they have the citizenship of another country.

Department of State Consular Notification and Access Manual in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Facing these and other challenges, we know that the U.S. record of compliance with the U.S. obligations has not been perfect. We are all aware of the high-profile cases of recent years in which the United States has been publicly called to account for these shortcomings. We are mindful of the U.S. obligations in these cases and are working to remedy those past harms. But the biggest takeaway from these cases is that we must do more moving forward to ensure compliance with the U.S. obligations not just in the majority of cases, but in every case. The Department of State is committed to overcoming the challenges and achieving 100 percent compliance with the VCCR and the U.S. other consular treaty obligations. We believe these efforts are bearing fruit: compliance has improved steadily over the years thanks in large measure to the outreach efforts of Consular Affairs, but we realize more needs to be done.

More about Department of State Consular Notification and Access Manual

The manual represents the centerpiece of the U.S. mission to spread the word about consular notification and access and explain how law enforcement should apply the obligation. Much of the advice in the manual is compiled from decades of experience…responding to real-life challenges faced by law enforcement officials in the course of their work. Among many other items, the manual contains instructions on the types of detentions that trigger the obligation to notify; how to determine if someone is a foreign national; how and when to advise the detainee of the option to have the consulate notified; what to do if you cannot communicate with the detainee; when and how the consulate should be contacted; how to accommodate a consulate's request for access; and the restrictions that can and cannot be placed on access. It also contains advice on consular notification for minors, incompetent adults, those involved in sea or air accidents, and deaths, and what to do when the detainee comes from a country with a bilateral treaty requiring notification regardless of the detainee's wishes.

Developments

Our commitment to consular notification and access is rooted first and foremost in the U.S. respect for the international rule of law. But it is also motivated by considerations of reciprocity. We accord these rights to consular officers in the confident expectation that if the situation is reversed, American consular officers overseas will be accorded equivalent rights to protect the U.S. nationals.…