Bilateral Mandatory Notification Treaties (as of 2004)
An essential function of government is to provide services to their citizens/nationals abroad. There are several specific consular tasks but an essential consular function is the provision of assistance to citizens who are detained by a foreign government. Protecting such citizens may include attempting to ensure that they receive a fair and speedy trial with benefit of competent counsel; visiting them in prison to ensure that they are receiving humane treatment; and facilitating communications with their families.
The operation of consular functions was initially a subject of customary international law but not consistently addressed in any treaty. Ultimately, efforts were made to codify the rights of governments to provide consular assistance to their citizens in international treaties. The United States first began to codify its consular relations in international agreements with a treaty of Friendship, Commerce, and Navigation (FCN). In 1963, however, the Vienna
Convention on Consular Relations (VCCR) was completed and countries throughout the world began to ratify this multilateral treaty. Today, most countries, including the United States, are parties to the VCCR. The VCCR to a large extent codified customary international law and thus represents the most basic principles pertaining to the performance of consular functions.
The United States has also concluded many bilateral consular treaties with specific countries in order to regulate the rights of governments to provide consular services to their citizens. Some of these agreements, generally referred to as “mandatory notification agreements”, require that consular officials be notified of the arrest and/or detention of one of their nationals regardless of whether the national has made a request for assistance. According to the State Department the mandatory notification requirement pertains to over 50
countries, and can vary in detail. Some agreements stipulate that notification should occur “without delay”, while other agreements are more specific and require that notification occur within two, three or four days (respectively) of the arrest or detention of the person. It should be noted that the United States is also party to several other bilateral agreements which do not contain a “mandatory notification” provision, yet do contain other important provisions in regard to consular assistance (the handling of deaths and estates of foreign nationals, for example).
Although bilateral consular treaties continue to be negotiated by the United States from time to time, it has primarily relied on the VCCR since its completion. The VCCR entered into force for the United States on December 24, 1969, and is referred to by some legal scholars as “the single most important event in the entire history of the consular institution.” (Luke T. Lee, Consular Law and Practice 26 (2d ed. 1991)). Under Article 36 of the VCCR, local authorities must notify all detained foreigners “without delay” of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate consular communication and grant consular access to the detainee. According to the State Department the VCCR establishes a “baseline” for most obligations with respect to the treatment of detained foreign nationals in the United States as well as US citizens detained abroad. So fundamental is the right to consular notification and access that the State Department considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR. Nevetheless, the United States still looks to customary international law as a basis for insisting upon adherence to the right of consular notification, even in the case of countries not party to the VCCR or any relevant bilateral agreement. Consular notification is in the view of the United States “ a universally accepted, basic obligation that should be extended even to foreign nationals who do not benefit from the VCCR or from any other applicable bilateral agreement. Thus, in all cases, the minimum requirements are to notify a foreign national who is arrested or detained that the national's consular officials may be notified upon request; to so notify consular officials if requested; and to permit consular officials to provide consular assistance if they wish to do so”. (Quoted from the State Department website at http://travel.state.gov/notification5.html )
The International Court of Justice has addressed the issue of consular notification three times: Breard, LaGrande, and Avena
and Other Mexican Nationals. It is the aim of the Interntional Justice Project that arresting nationals promptly notify consulates. Please use the State Department links below to find lists of countries that have mandatory notification treaties with the United States, and other information regarding consular notification.
Links
US State
Department: Consular Notification and Access Page which Includes Instructions for Federal, State, and other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them; Legal materials involving consular notification; a list of those nations that have mandatory notification treaties with the United States and links to these.
The Vienna Convention on Consular Relations
Equal Protection : Consular Assistance & Criminal Justice Procedures in the USA (International Justice Project & Human
Rights Research)
Proteccion sin Distincion: La Ayuda Consular y los Procesos de Justicia Penal en los Estados Unidos de America
A Universal Safeguard: Providing Consular
Assistance to Nationals in Custody (International Justice Project & Human
Rights Research)
US State Department: Instructions for Federal, State, and other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them.
US State Department: Legal Materials involving consular notification. This page includes a list of those nations that have mandatory notification treaties with the United States.
US State Department: The site is a list of those countries who have bilateral mandatory notification treaties with the United States as well as links to the actual treaties.
International Instruments on Foreign Nationals: Please visit the IJP’s section on other international instruments pertaining for foreign nationals.
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