Expanding the Vienna Convention on Consular Relations: Protecting Children by Protecting Their Parents
McCroskey, Sarah Grey, Vanderbilt Journal of Transnational Law
Article 37 of the Vienna Convention on Consular Relations (VCCR) aims to protect the interests of foreign national children by requiring consular notification whenever these children come into the custody of the state. Consular assistance can be invaluable for foreign national parents and children who may not understand the language or the culture and who may be subject to discrimination based on their nationality. However, the VCCR is currently inadequate in two major ways. First, the protections of Article 37 are only triggered when the child in custody is a foreign national, leaving vulnerable to unfair treatment families in which the child is a citizen but the parents are foreign nationals. Second, enforcement of the VCCR is inconsistent, and the remedy for violations is unclear. This Note proposes amendments to the VCCR that would provide broader and more consistent protection to foreign national families.
TABLE OF CONTENTS I. INTRODUCTION II. THE IMPORTANCE OF CONSULAR NOTIFICATION IN CHILD WELFARE PROCEEDINGS INVOLVING FOREIGN NATIONALS A. What's at Stake: Child Welfare Proceedings Generally B. Additional Challenges for Foreign Nationals C. Types of Consular Assistance III. CONSULAR NOTIFICATION REQUIREMENTS IN INTERNATIONAL LAW A. The VCCR B. Additional Consular Notification Requirements IV. INADEQUACIES OF THE VCCR A. Coverage Gap: Protecting Children but Not Parents B. Inconsistent Enforcement V. PROPOSED AMENDMENTS TO THE VCCR VI. CONCLUSION
In the United Nations Convention on the Rights of the Child (CRC), 193 nations announced their conviction that "the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community." (1) This proclamation reflects the nearly universal respect that the family unit is afforded. (2) Given this respect, governments must be cautious when interfering with the family realm.
Child welfare laws generally reflect an attempt by the government to strike a balance between respecting the rights of parents to raise their children and protecting children when their parents are unable or unwilling to adequately care for them. (3) Although the central consideration is the best interests of the child, most child welfare systems presume that children are typically better off with their parents, (4) State intervention into familial life can traumatize all members of a family, (5) and this result is even more likely to occur when the family is living in a foreign country. (6)
In child welfare proceedings, parents have a fundamental right at stake: the right to the care and custody of their child. (7) If they are unable to adequately work with the government officials involved and fail to comply with judicial orders, they risk permanently losing their child, (8) When the parents are foreign nationals, they are on an unequal playing field. (9) Although the specifics of child welfare proceedings differ from country to country, a foreign national in any country would face similar challenges.
Consular assistance can effectively remedy these concerns because it provides someone to advocate for the rights of both parent and child. (10) More importantly, this advocate would come from the same cultural background as the family and would speak its native language. These characteristics allow the advocate to assist the family in ways that an attorney from the country in which the proceeding is taking place likely cannot. (11)
Recognizing these benefits, the United States and other countries entered into a number of international agreements providing for consular notifications when foreign nationals become involved in child welfare proceedings. …