Consular Notification and Access. (CT Feature)

By Cooke, Rachel L. | Corrections Today, February 2002 | Go to article overview

Consular Notification and Access. (CT Feature)


Cooke, Rachel L., Corrections Today


Susan was excited about her plans to visit her friend Isabel in Costa Rica. Isabel had been a high school exchange student five years earlier and had lived with Susan's family. Susan's college graduation gift from her parents was a trip to visit Isabel. Susan picked up her rental car at the airport when she landed in San Jose, Costa Rica's capital, and settled in for the two-hour drive to Isabel's hometown. Along the road, something went very wrong. A pedestrian came out of nowhere -- Susan did not see him until she had hit him. Panic-stricken, she stopped the car. After a short time, help arrived -- as did the police, who took Susan to a local police station. Susan was terrified: Her rudimentary Spanish was of no help to her, Isabel's family did not have a telephone, and she had no idea what to do. The police officer was trying to say something to her, ask her something: Did she want the U.S. consulate to know she had been detained? Yes!

Luckily, the U.S. consulate was notified of Susan's arrest, and a consular officer was able to visit and help her contact her parents and hire a lawyer. Without the consular officer's help, Susan would have felt completely lost. Her rights -- and those of anyone arrested in a foreign country -- to consular notification and access are codified in the Vienna Convention on Consular Relations (VCCR). VCCR, and some bilateral treaties to which the United States is party, gives detained or arrested foreign nationals (anyone who is not a citizen, including foreign visitors, legal permanent aliens and illegal aliens) the right to have their consulate notified of their detention or arrest. These treaties also give consular officers the right to have access to their citizens in these situations.

This article focuses on the notification and access rights inherent in these treaties, explains why they are important, and describes how correctional officers can easily comply with the obligations created by these rights.

THE BASICS

Foreigners in any country are likely to be less aware of the laws and legal system than that country's citizens. They also are more likely to be cut off from the support of friends and family than a native. For this reason, when a foreigner is arrested for any reason, it is important that consular officers be able to offer assistance and guide the detainee through the legal system. This right was codified in VCCR in Articles 36 and 37. More than 165 countries have agreed to abide by the terms of VCCR. The United States has been a party to VCCR since 1969.

VCCR Article 36 states that arresting authorities must inform foreign detainees that they have the right to have their respective consulate notified of their detention. It also affords consular officers the right to have access to detainees. Therefore, when a foreign national is arrested or detained, authorities must ask if the detainee would like his or her consulate notified. If the detainee answers yes, authorities must make that notification. After that, if the consulate wishes to have access to the detainee -- via personal visit, telephone or letter -- the detaining authorities must provide that access.

VCCR Article 37 provides that appropriate authorities must notify the consulate when a foreign national dies. While it may be rare that a foreign national dies while in the custody of a correctional facility in the United States, such deaths occur periodically and it is important that correctional authorities are aware of their responsibilities under VCCR.

CONSULAR OFFICERS

Consular officers (consuls) are commissioned to perform certain duties on behalf of their governments. They either are members of a country's foreign service or are local residents (known in the United States as "honorary consuls") appointed by the foreign government to perform consular duties. Their responsibilities include developing economic, commercial, scientific and cultural relations between the countries they represent and the areas in which they serve, and safeguarding interests of their governments and their citizens traveling or residing in their consular districts. …

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