The Law of Consular Access

A Documentary Guide

John Quigley, William J. Aceves, Adele Shank

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781135238711
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Over the past decade, there has been an explosion of litigation at the international and domestic levels concerning consular access for foreign nationals charged with a criminal offence. The issue has complicated relations between countries, with the majority of litigation involving the United States, which has adopted a restrictive view of the consular access obligation.

This book brings together for the first time relevant documentary sources on the law of consular access. The book includes significant excerpts alongside commentary on the documents, allowing readers to draw their own conclusions. While presenting information on the Vienna Convention on Consular Relations, the book presents other sources, including bilateral consular agreements, multilateral treaties, and key court cases from various jurisdictions. Many of these sources are not readily accessible.

The Law of Consular Access will be of interest to scholars of international law, human rights, and international relations. It will also be of interest to private and government lawyers, as well as diplomats and consuls.

Part I
Introduction to consular access

If in a criminal investigation the suspect is a foreign national, a variety of complications may arise for the police, for the prosecuting authorities, for defense counsel, and for the judiciary. For the individual being investigated or prosecuted, their status as a foreign national may heighten the difficulties typically associated with defending a criminal charge. The criminal justice system of a foreign state is likely to be unfamiliar to the individual. Proceedings may be conducted in a language not understood, or only poorly understood. There is a risk of discrimination – overt or subtle – for the foreign national.

The mechanism that the international community has devised for protection of the individual in this situation is assistance by the foreigner’s state of nationality. States – in the sense of nation states – appoint representatives, called consuls, to protect their nationals and monitor local authorities. The task of consuls is to assist their nationals under arrest, not only by monitoring the local authorities but also by helping them mount a defense. Rules mutually agreed at the international level require the local authorities to allow for communication and contact between consuls and their nationals.

Not infrequently, however, the system breaks down in individual cases. Local authorities do not always observe the rules that require them to facilitate contact and communication between a foreign national and a consul. As a trial unfolds, a national may challenge the introduction into evidence of seized items, or the national’s own statements, arguing that they were obtained in violation of rules on contact and communication with consular officials. If the national is convicted and sentenced to a term of imprisonment, or perhaps sentenced to death, the question then arises whether the failure to comply with consular access requirements renders the conviction or sentence subject to challenge.

This volume provides documentation on consular access issues, in the hope that exposure to relevant documents may assist those involved in the criminal process. At the same time, the book provides analysis on the key issues that give rise to controversy as a criminal case proceeds. Since consular access is based on international law, these obligations are generally the same, regardless of whether the foreign national is arrested in India, Uruguay, Italy, or Zambia. How particular cases play out in one state is relevant to how such cases should play out elsewhere. Hence, the case law and statutory materials included in this volume are instructive regardless of the point of origin.

Consular access is examined by first providing, in Part I, background on the consular institution and consular law, and basic information about what consuls do in aid of a national under arrest. Part II covers the key obligations that fall on the local authorities when they make an arrest. Part III addresses the question of whether the foreigner has rights resulting from those obligations. Next, the consequences of a violation are explored. Part IV asks whether international obligations relating to consular access translate into the domestic legal sphere, so as to become law that courts should apply. Part V addresses remedies available in those courts. Part VI examines remedies available at the international level when domestic proceedings prove insufficient in a particular case. Finally, Part VII analyzes the litigation of recent years on consular access at the international level.

1 Overview of consular access

Protection of nationals when they are abroad is accepted as an important function of government. States recognize each other’s right to exercise protection over their own nationals. Protection is effected through a consular official assigned by the state of origin. The state that appoints a consul is called the “sending” state, while the state in which the consul works is called the “receiving” state. Sending-state consuls visit sending-state nationals in receiving-state jails. They may help find legal counsel, attend and observe court proceedings, or assist in locating exculpatory information.

1.1 Consuls and their work

Understanding what consuls do in criminal cases is best approached against the background of what consuls are and what functions they perform. The roots of consuls as an institution go back to the city-states of ancient Greece. In foreign areas, officials called “prostates” acted as intermediaries between Greek colonists and local governments.¹ As an effective political institution, the consular office emerged only with the dawning of the commercial age during the early Middle Ages. Initially, the major function of consuls related to commercial relations. According to one commentator:

In the commercial towns of Italy, Spain, and France the merchants used to elect one or more of their fellow merchants as arbitrators in commercial disputes, and these were called juges consuls [judge consuls] or consuls marchands [merchant consuls]. When, between and after the Crusades, Italian, Spanish, and French merchants established themselves in Near Eastern countries, they brought the institution of consuls with them, merchants from the same nation electing their own consul. The competence of these consuls became gradually enlarged through treaties, called “capitulations,” between the home states of the merchants and the mohammedan monarchs in whose territories they had settled. The competence of consuls came to comprise all civil and criminal jurisdiction over, and protection of, the privileges, life, and property of their countrymen.²

Such a broad role for consuls – allowing them to exempt their co-nationals from local jurisdiction – had waned by the early twentieth century. The functions of consuls became limited to assisting co-nationals in more defined ways. A set of rules came into being in the international community for the consular institution, as part of a body of law referred to as “customary” law. Customary law is made up of norms that are accepted by states as necessary for international intercourse.

In modern times, consular relations came to be regulated as well by treaties between states. By 1900, approximately 200 treaties contained provisions on consular relations, and by the 1930s the number reached 900.³ These were bilateral agreements, that is, treaties between pairs of states. These bilateral treaties addressed a variety of issues in the relations between the two states. One or two provisions addressed consular relations. Provisions relating to consuls in bilateral treaties were typically brief so that customary rules continued as the major body of relevant rules. As time passed, some pairs of states began to conclude entire treaties devoted to consular matters.

Consular relations were also impacted by so-called “most favored nation” provisions, found in a bilateral treaty. Most favored nation treatment involves an obligation to treat a foreign state no less favorably than what is afforded to the state with the widest scope, in regard to a defined set of activities. The most common use of this device is in regard to tariffs, whereby states admit each other’s goods at the lowest tariff imposed on goods from any other state. Some bilateral treaties used this device for consular obligations, requiring that the two states afford to consuls of the other the same scope of rights that they afforded to consuls of any third state. For example, the 1859 Treaty of Friendship between the United States and Paraguay provided: “the Diplomatic Agents and Consuls of the Republic of Paraguay in the United States of America shall enjoy whatever privileges, exemptions and immunities are, or may be, there granted to Agents of any other Nation whatever.”⁴

Immunities are an important aspect of the consular institution. In order to prevent the receiving state from interfering with their work, consuls enjoy certain privileges. The confidentiality of their files and documents must be respected by the authorities of the receiving state. Consuls may not be compelled to testify in a receiving-state court about matters relating to their official functions. Consuls may not be sued, or prosecuted criminally, for acts relating to their official functions. Consuls are exempt from paying taxes in the receiving state.

Consuls are accredited to the receiving state by a process that involves submitting the individual’s name and the acceptance of that individual by the receiving state. There are two types of consuls who function on behalf of sending states. A “career consul” is an official of the sending state, typically a member of its foreign service. This type of consul is dispatched by the sending state to a consulate in a particular foreign state. Consuls may serve in a particular receiving state for a period of years and then may be re-assigned elsewhere.

A career consul works out of an office referred to in treaties as a “consular post,” or more popularly a “consulate.” In capital cities, consulates are usually housed in the building complex of the sending state’s embassy. They are referred to as the consular section of the embassy. In cities other than the capital city, consulates are self-standing. A building may be purchased or leased by a sending state as its consulate, or space may be rented in an office building. In larger consulates, one finds not a single consul but an entire staff of consuls, distinguished by various ranks. The head of a consulate may be called the “consul general.”

Maintaining a consulate is an expensive proposition for a sending state. A device that sending states use to economize is the sharing of consular services. By pre-arrangement, the consul of one state will assist nationals of another in localities in which the former has no consular representation. Some pairs of states have bilateral agreements specifying the localities in which each will assist nationals of the other. Sharing may be done on a multilateral basis. The European Union has an arrangement whereby consuls of member states assist nationals of any of the others, if the state of nationality has no consul in the particular locality.

One other device is widely used to economize. Many states engage a local resident, particularly in outlying areas of a receiving state, to perform consular work on a part-time basis. Such a person, called an “honorary consul,” may even be a national of the receiving state. An honorary consul may have some connection in her or his background to the sending state. Honorary consuls typically practice a profession of their own and work out of the office they use in that profession. Some sending states never engage honorary consuls, but those that do find it a convenient way to provide at least a minimal level of assistance to their nationals in localities in which it does not make financial sense to establish a consulate staffed by career consuls.

Consuls, whether career or honorary, are responsible for a given territory. These territories are called “consular districts” and would be sectors of the territory of the receiving state determined by the sending state. Nowadays, sending states typically post on a website the contact information for both their career and honorary consuls. Receiving states may also post contact information for sending-state career and honorary consuls accredited in their territory.

Despite the various types of arrangements, it can happen that a sending state has no one available in a particular receiving state to assist its nationals. To determine whether consular services are available, it may be necessary to contact the sending state directly.

1.2 Protection activity of consuls

For both career and honorary consuls, assistance to sending-state nationals is a major activity. The scope of functions is typically greater for career consuls than for honorary consuls. In general, however, certain functions are typical. A consul may provide advice and information to sending-state nationals who seek to do business in the receiving state. Consuls attest to the validity of documents issued in the receiving state that a national may need to use in the sending state.

Consuls perform a variety of functions for sending-state nationals who encounter difficulties in the receiving state. If a sending-state national dies while in the receiving state, a consul may facilitate arrangements for repatriation for burial. If a national dies abroad with property in the receiving state, the consul may assist in settling the estate. Consuls inquire about sending-state nationals who go missing, or are victims of crime, particularly if the sending state is concerned that the receiving state is not doing all that it should in the case. If persons suspected of crime are to be extradited – either from the sending state to the receiving state or vice versa – the consul may facilitate that process.

The assistance that consuls provide to nationals who find themselves in situations of difficulty is referred to as “protection” activity. A member of a consulate responsible for assisting nationals may be called the consulate’s “protection officer.”

The nexus of nationality is key to the protection activity of consuls. The term “nationality” is used in international practice for the connection between an individual and a state. An individual who holds a state’s nationality may be represented and protected by that state over and against other states. The state of nationality is considered to have a right to represent the interests of a national. The term “nationality” is often used synonymously with “citizenship.” At the international level, “nationality” is the accepted term to indicate an individual’s connection to a state. In documents on consular law, it is the term used to refer to a foreigner under arrest. In domestic law, the term “citizenship” is used for the circle of persons who enjoy rights of political participation. Individuals who reside in territories over which the state holds sovereignty but who do not enjoy the right to participate in government are “nationals,” but not “citizens.” For international purposes, ...