Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice

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TABLE OF CONTENTS

I. INTRODUCTION

II. THE PROTECTION OF NATIONALS BY CONSULS UNDER

CONSULAR AGREEMENTS AND PRACTICES

A. Consular Protection Before the Vienna Convention

B. The Vienna Convention on Consular Relations

C. Consular Protection and Access to a Consul

III. HUMAN RIGHTS AT STAKE

A. Human Rights and the United Nations Charter

B. The Universal Declaration of Human Rights

C. The Universal Declaration and the Administration of

Criminal Justice

D. The International Covenant on Civil and Political Rights

IV. CONSULAR PROTECTION AND HUMAN RIGHTS IN UNITED STATES LAW

V. THE APPLICATION OF THE VIENNA CONVENTION IN UNITED

STATES DOMESTIC COURTS

A. The Faulder Case

B. The Montoya Case

C. The Murphy Case

D. The Breard/Paraguay Cases

VI. RECOMMENDATIONS

VII. CONCLUSION

I. INTRODUCTION

Improvements in transportation have increased the number of foreign travelers going abroad for business, labor, and tourism.(1) In rare instances, such travelers may find themselves detained in a foreign country for alleged criminal conduct. Foreigners arrested or imprisoned abroad are certainly disadvantaged--especially for persons whose economic, social, and cultural condition make them particularly vulnerable to abuses.(2)

Criminal prosecution in a foreign country could significantly reduce the possibility of a fair trial. This danger multiplies for defendants not fluent in the local language or whose understanding of the foreign legal system is tacking.(3) The picture becomes more threatening in countries where the prosecution may still impose the death penalty.(4)

Undoubtedly, depriving a foreigner of their liberty in a strange country involves numerous aspects of basic human rights law. International law guarantees the protection of fundamental norms such as the right to be free from arbitrary deprivation of physical liberty during the administration of criminal justice--an area where violations often occur.(5) In such cases, the opportunity to speak with a consul could significantly affect the legal situation of aliens arrested and imprisoned in foreign countries. This right of consular access has been specifically guaranteed in international conventions and bilateral treaties.(6) Moreover, the right to contact a consul is well settled in international practice.(7)

Unfortunately, the protection offered by a consular officer of the alien's country of origin is often disregarded.(8) Unfamiliarity with international law and, more particularly, ignorance of both immigrants and police agents regarding consular tasks and responsibilities are usually to blame for the deprivation of the right to a consul.

Both United States law and international law protect the right to have access to a consul.(9) Moreover, when a foreign national faces judicial proceedings in a strange country, several basic human rights are implicated: including the right to due process, adequate counsel, and an interpreter. Many of these rights are also guaranteed by the United States Constitution and enforced by United States courts.(10)

From a humanitarian point of view, the right to a consul also has important implications. The scope of consular protection covers not only the legal aspects of a national's detention or trial, but also more personal issues. As the U.S. Department of State noted in an official communication, "[t]he Consul's presence may also help assuage the distress of detained nationals."(11) The consul thus represents familiarity. The presence of a fellow national who speaks the same language gives great psychological relief to distressed nationals detained in strange environments.

This article examines relevant aspects of consular protection derived from international treaties, customary international law, human rights agreements, and the United States legal system. …