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

Uribe, Victor M., Houston Journal of International Law

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. Because consular practice is based in international law, it will become apparent that several existing human rights instruments of universal coverage appear to protect the right to a consul. Additionally, adequate basis exists to support the argument that this protection should be enforced through the United States' legal system and the domestic courts--particularly in the capital punishment sphere.

The article begins with an examination of consular protection in customary international law and early bilateral agreements, culminating in a discussion of the Vienna Convention on Consular Relations--the foremost international instrument in the field. Next, Part III analyzes the provisions of several human rights agreements relating to consular protection. The foundations for consular protection of foreign nationals under United States' law is briefly discussed in Part IV. Part V introduces a novel legal argument currently developing in several pending death penalty cases. In these examples, inmates on death row are asking for various forms of state and federal relief due to alleged violations of their right to consul guaranteed by the Vienna Convention on Consular Relations. The final section offers some practical solutions concerning how the right of access to a consul could be enforced in the context of the United States' legal system.

II. THE PROTECTION OF NATIONALS BY CONSULS UNDER CONSULAR AGREEMENTS AND PRACTICES

The consular institution is one of the oldest in international relations.(12) The protection of nationals, whether natural or legal persons, in foreign countries is arguably one of the foremost purposes of consular representatives.(13) In fact, this objective could well be regarded as the underlying objective for all other functions performed by consuls in the interest of the sending State.(14)

In this respect, two main theoretical approaches exist on the issue of whether a person has the right to demand protection of his consul.(15) Some states believe their consular representatives have the duty to provide the necessary protection to co-nationals, while others maintain that consular protection is a matter of strict discretion on the part of the state of nationality.

France, Mexico, the United Kingdom, and the United States have adopted the former view to varying degrees.(16) French consuls are required "to aid their nationals in the attainment of judicial equality and fairness and, in case of expulsion ... to demand explanation from the local authorities."(17) Consular protection by Mexican consuls includes assistance and advice to Mexicans in their dealings with local authorities, visiting Mexicans in detention, prison, hospitals, or assistance in any other difficult situation, and representing Mexicans who are incapable of handling their own affairs.(18) Even before the adoption of the Vienna Convention, British Foreign Service officers had the duty to "watch over and take all proper steps to safeguard the interests of British subjects and British protected persons within his district."(19) Likewise, once United States citizenship is unquestionably established, United States consuls have a duty to protect nationals.(20)

Brazil and Hungary have similar views. According to Brazilian laws, not only do Brazilian consular representatives have the duty and right to assist and protect Brazilians and to see that their rights are respected, but citizens have the right to demand such protection when abroad.(21) The right of Hungarian citizens to enjoy the protection of the Republic of Hungary during their legal stay abroad is guaranteed in the 1989 Hungarian Constitution.(22)

Illustrative of the second position is the Canadian practice. According to the Canadian Consular Manual, the protection of nationals is a "high priority" function of the Canadian government and its consuls have "a mandate to protect and assist Canadians who live and travel abroad and to respond promptly when they find themselves in distress."(23) However, "[m]ost Consular services are provided as a matter of discretion by virtue of the royal prerogative [and] except as provided by statute, no one is entitled to claim such services as a matter of legal right."(24) Thus, the Canadian Secretary of State for External Affairs can, in his discretion, withhold protection and assistance to nationals.

Similarly, the Netherlands maintains that neither international law nor Dutch law allow nationals to demand consular protection of their interests abroad.(25) Thus, in the case of a clash between the protection of a national and the interest of the state, the question of whether such protection should be withheld "must as a rule indeed be a matter for the authorities to decide from case to case."(26)

Nevertheless, it has been suggested that the two general positions are not irreconcilable.(27) Although most countries accept the duty of their consular representatives to protect and assist nationals in accordance with international law and the laws of the receiving State, this duty is general in character and no specific action is enforceable at the request of an individual.(28) Consequently, the duty to protect is a non-justiciable duty.(29) Nonetheless, as will be discussed later, the right to communicate with a consul, and thus to obtain the protection of the sending State, could be enforced from a human rights perspective.(30)

A. Consular Protection Before the Vienna Convention

Long before the adoption of the Vienna Convention on Consular Relations,(31) the law governing protection of nationals was developed through bilateral agreements between nation-states.(32) Pre-Vienna Convention consular agreements regulate, with more or less detail, matters related to the establishment of consular posts, the appointment of consular staff, privileges and immunities of consular officers, and the scope of consular functions--giving consular law its distinctive conventional-based character which persists today.(33) Consuls are also authorized to contact local authorities for information regarding the situation of nationals and to lodge protests when their national's rights have been violated by the receiving State.(34)

Shortly before the adoption of the Vienna Convention, treaty provisions concerning consular protection and the protective role of consuls could be found in practically every consular agreement.(35) By the end of the 1950s, the protection of nationals by consuls had been included in many consular treaties concluded between the Soviet Union and numerous bordering countries in Eastern Europe and Asia.(36)

As a logical complement of the protection tasks performed by consular representatives, they also have the duty to render aid and assistance to their nationals in the receiving State according to the circumstances.(37) Consular assistance may take different forms.(38) A consul may help his co-nationals by giving them information and advice on local proceedings, representing them before local authorities, or providing the assistance of a lawyer or an interpreter when facing judicial procedures.(39) Consuls also have the right to visit and interview nationals of the sending State detained or imprisoned in the receiving country and to verify the conditions of their stay in local police stations or jails.(40) They may also protest and seek redress when a wrong is committed against a citizen by local authorities.(41) Furthermore, consuls have a special role in the safeguarding of persons with special needs or limited legal capacity, such as minors, handicapped, and elderly nationals.(42)

Essential to the fulfillment of these protective functions is the consul's right to learn immediately of the detention of any of his compatriots.(43) Upon notification, a consular officer may take a variety of actions to provide protection for a fellow national.(44)

B. The Vienna Convention on Consular Relations

Although there were several efforts at the academic and inter-state level to codify consular law,(45) the 1963 Vienna Convention is the most important instrument on consular relations to date.(46) Negotiated under the auspices of the United Nations' International Law Commission, the Convention was unanimously adopted by the participating States on April 24, 1963, in the Austrian capital.(47) When the Convention entered into force on March 19, 1967, more than 100 states became bound by its terms.(48)

The success of the Conference is self-explanatory. "As the first conference of this kind participated in by states with diverse national, regional, and ideological interests, the fact that a convention was concluded at all was in itself a remarkable feat."(49) The merit of the Convention is even more significant considering it had no great precedent to follow.(50) Apart from several customary rules of international law, bilateral treaties (frequently with conflicting provisions), and a few regional treaties, the task of the Conference had no settled basis with which to begin.(51)

The codifying nature of the Vienna Convention, both with respect to existing and newly propagated rules, has a double character.(52) On the one hand, it codifies existing customary consular law--the product of state practice and historical development.(53) On the other hand, it completes and develops customary law, incorporating new rules originating from conventional sources.(54) This dual nature of the Convention has a significant impact on the legal nature of the norms it codifies. As to customary rules, the Vienna Convention is binding on all states, including those which are not signatories to the instrument.(55) As to the rules of conventional origin, the Convention is binding only on states which are parties to it.(56)

Notwithstanding the non-binding nature of the provisions originating at the Convention, the success of the Convention and its near universal acceptance(57) certainly influences state practice and patterns of legal expectation.(58) In a communication to the Syrian government concerning the detention of two Americans by local authorities without granting them the right to contact the American consul in Damascus, the U.S. Department of State referred to the Convention as "widely accepted as the standard of international practice of civilized nations, whether or not they are parties to the Convention."(59)

In any event, the Preamble to the Convention leaves the regulation of matters not expressly covered by the Convention subject to customary rules of international law.(60) Regarding consensual rules, the Convention does not affect the consular agreements effective between state parties before its adoption. Article 73 expressly recognizes the validity of all agreements, whether bilateral or regional, existing at the time the Convention came into force.(61) Moreover, Article 73 authorizes other international agreements between states "confirming or supplementing or extending or amplifying the provisions" of the Convention.(62) In this sense, the Convention represents a general framework of minimum standards which states are encouraged to further develop.

The Convention faced one of its major challenges in defining standards for consular functions. The duties of a consul vary substantially among countries and particularly according to the circumstances of each case.(63) It was difficult for the participants at the Conference to set fixed standards defining the exact scope of consular action. Nevertheless, the Convention attempted to enumerate many of the essential functions of a consul.(64)

According to Article 5 of the Convention, consular functions include inter alia: the protection and assistance of co-nationals in the sending State; the protection of the interests of the sending State and of its nationals, both individuals and bodies corporate, in accordance with the laws of the receiving State; the protection of the interests of minors and other persons lacking full capacity who are nationals of the sending State, within the limits imposed by the laws of the receiving State; the representation or arrangement of appropriate representation for co-nationals before local tribunals and other authorities insofar as the laws of the receiving State permit; and the assistance of vessels, aircraft, and their crews having the nationality of the sending State in accordance with the laws of the sending State.(65) Moreover, consuls have judicial-type duties such as acting as notaries and civil registrars, the transmission of judicial documents, and certain administrative functions such as the issuance of passports, visas, and travel documents.(66)

However, as the text of the Convention recognizes, the list is not intended to be exhaustive and consuls can perform functions "which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State . . . ."(67) In the cases of protection of nationals, the flexibility granted by this provision proves to be fundamental.

C. Consular Protection and Access to a Consul

Consular functions aim to protect the interests of the sending State and its nationals. In particular, the right to communicate and to have access to the nationals of the sending State is of vital importance because the fulfillment of all other consular protective duties depends on their exercise.

Before the adoption of the Vienna Convention, it was customary for consuls to have the right of communication with and access to nationals.(68) Additionally, before the Vienna Convention, the United States signed twenty-eight bilateral treaties with provisions regarding the right of American consuls to be notified of the arrest of nationals.(69) Thus, the right of consular access to nationals in prison was accepted as a matter of customary international law, or at least of international practice, regardless of the existence of a treaty.(70)

In the years preceding the Vienna Convention, the U.S. Department of State had consistently argued for these rights in their communications with other nations. For example, one case involved the denial of a U.S. consular officer's right to visit a U.S. citizen detained in Germany.(71) The State Department instructed the United States Embassy to transmit to the German government its belief that the consul should be granted access to their nationals according to what the U.S. Government considered to be "the accepted international practice, ... in order that the Consular Officers may render them the assistance to which they may be entitled."(72)

Addressing a complaint from Mexican authorities regarding access to a Mexican national in California, …

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Publication information: Article title: Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice. Contributors: Uribe, Victor M. - Author. Journal title: Houston Journal of International Law. Volume: 19. Issue: 2 Publication date: Winter 1997. Page number: 375+. © 2009 Houston Journal of International Law. COPYRIGHT 1997 Gale Group.

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