Consular Notification under the Vienna Convention

On Thursday, November 18th, the Nassau Academy of Law (NAL), presented a Dean’s Hour entitled “Requirements of Foreign Consulate Notification Upon the Arrest/ Detention Of A Foreign National.” The Dean’s Hour addressed the unique challenges facing the Criminal Defense and Immigration Bars concerning Consular Notification1 mandates under U.S. and International law. If not handled properly, Consular Notification cases may raise profound constitutional questions given the U.S. Supreme Court decision in Sanchez-Llamas v. Oregon (548 U.S. 331), in which the high court held that state courts did not have to exclude evidence admitted into court in violation of Article 36 of the VIENNA CONVENTION ON CONSULAR RELATIONS (1963; U.S. 1960 at 21 UST 77; TIAS 6820; 596 UNTS 261). At issue are key concerns of evidentiary exclusion or prosecutorial preclusion, and violations and sanctions under International Law affecting relations of the U.S. with other countries, the fundamental compromising of a client’s constitutional right to a fair trial, or even potential civil, criminal or political post-deportation retributions in the client’s home country. For all its good intentions, the legal implications of Consular Notification may emerge as a double edged sword against client and attorney alike, with attorney errors compromising clients’ liberties or life, and potentially triggering ethical, misconduct, or even malpractice liability.

Legal practitioners do not have occasion for any but the most general encounters with International Law. Imperatives of International Law apply when a “foreign national”2 is a party in a legal matter in this country, yet is subject to multiple jurisdictions, i.e., that of the U.S. (“host country”) and a foreign country (“sending country”). When a foreign national becomes involved in a criminal, civil or immigration matter, federal and international laws may act as competing forces affecting the outcome, sometimes even trumping the basic liberties of the respondent detainee/arrestee. Moreover, elements of cross-border legal principles may countervail, complement or conflict each other. Hence, U.S. counsel should acquire some appreciation of the dynamics of this interaction.

This country has entered into myriad international agreements whose principles and protocols were mutually agreed upon with other sovereigns, and then ratified by the Senate. In legal practice, the landscape becomes more convoluted when another country, such as Ukraine (U.S.S.R. 1964) has laws devolving from predecessor sovereigns, while the legal principles of the successor sovereign have been radically changed. For example, when Ukraine finally declared its independence on August 24, 1991 (as did the other vassal states of the Soviet Empire in that general period), some of the Ukraine’s laws and international agreements to which earlier the Ukrainian Soviet Socialist Republic was a signatory, effectively, have remained in place to date. Since such legal devolution-by-default is not uncommon in Interna­tional Law, counsel should be particularly attuned to this variable when analyzing the legal implications of a criminal, immigration or business case in the operative context of a foreign country’s current juridical status as a sovereign. This applies even more so with respect to international treaties that tied the U.S. to the current sovereign’s predecessor state. Applicable derivative legal elements of the foreign states’ laws and regulations must be considered, given the potential for episodic modifications in the course of the sovereign’s successive iterations. Such iterations, whether in intent, spirit or letters, also may have some bearing on a case.

Since precepts of International Law are also encountered when U.S. Law interfaces with that of another national jurisdiction, counsel must be acutely attuned to such nuances. Otherwise, complications can emerge if a foreign statute confers some controlling effect. Hence, in cross-border business practice, the attorney needs to have sufficient familiarity not only with relevant U.S. laws and procedures, but also with foreign legal requirements entailing even basic conceptual definitions. For example, when entering into a contract-based transaction involving a counterpart foreign jurisdiction whose prevailing lingua franca entails a sui generis definition, construction or enforcement of what is an “agreement,” the foreign jurisdiction may well refer to the agreement as a “contract” even though it might not be enforceable by a U.S. court if it lacks a common law contract’s fundamental requisites. In such a case, the preferred choice of jurisdiction may also need to be established. Counsel should approach the transaction by distinguishing between legal systems, especially in light of such common conflicts as parameters of dispute resolution, enforcement of remedies, counsel’s ethical obligations and other responsibilities toward adverse parties. Even as foundational a precept in the U.S. as the proscription against ex parte communication is not universally acknowledged.

Likewise, in cases entailing rights or liberties of a client subject to cross-border legal authorities, counsel must discern various portal determinants:
1. Interface of U.S. vs. foreign laws, and which of the these infer dominance in this dichotomy;
2. Resulting touchstone variable that would affect a case’s outcome;
3. Tactical decisions to avoid traps between these layers not only of conflicting laws, but perhaps some concomitant international political pressures that could affect U.S. enforcement;
4. Where certain national laws would prevail over others, their residuary strategic ramifications as provoked by discrete legal variables that could arise as immutable factors in the case. In the practice of Criminal Law or Immigration Law, the confluence of prevailing law enforcement practices vis-à-vis the adjudicatory process (whether in courts or in administrative law proceedings, such as U.S. Immigration Court), a criminal case with a predicate track involving Immigration Law is especially fraught with peril. Because a foreign national is also subject to the laws of his sending country, counsel must consider which laws would drive the case’s strategy. In other words, what could be the desired ripple effect of “stacking” applications from divergent cross-jurisdictional codices toward the most effective outcome?

Another case variant tugging at the delicate articulation between U.S. and sending countries’ laws derives from overarching international agreements (treaties, compacts, conventions, etc.) when defending a U.S.-credentialed foreign diplomat (“consular officer”)3 enjoying diplomatic immunity. The operative complication is that, in contrast to a foreign national who is not a bona fide diplomat, a foreign diplomat possessing the requisite statutory diplomatic accreditation by the U.S. Department of State still is not considered subject per se of U.S. jurisdiction, but only of the sending country. Yet the physical premises and compounds (i.e., aggregated premises or areas), together with their curtilages, regardless of whether owned or leased, and used to conduct a foreign sovereign’s official business, must be assured protection from harm by the U.S. insofar as this territory is deemed the discrete “soil” of the foreign country. Foreign diplomats are not entirely exempt from U.S. criminal and other statutes, especially when a matter entails public safety and welfare. So when defending a foreign diplomat in any proceeding, counsel must learn to work within the limitations imposed by U.S. and international protocols. Even with their diplomatic immunity, foreign diplomats entering into a contractual agreement in the U.S. are subject to local civil and criminal penalties for certain violations or breaches, with two main exceptions (standing and enforcement of remedies)

The defense and transactional law bars need to recognize these overlapping legal boundaries, since counsel must factor in the contradictions flowing from the status of a foreign national, whether diplomat, temporary or term-specified visitor, legal invitee, or documented or undocumented resident alien. When representing a foreign national detailed or arrested in the U.S., a particularly volatile yet lesser known issue involves “Consular Notification” provisions under the Vienna Convention. Further complication may entail varying U.S. enforcement practices concerning such Notification, depending on where the violation has occurred (charging jurisdiction) vs. the background of the sending country’s statutory engagement. Depending on the foreign country, its notification requirement upon the U.S. may be mandatory, optional or silent (nullity). The Dean’s Hour will address many of these important questions.

Andrij V.R. Szul, Ph.D., J.D., has practiced and lectured in the area of International and Business Law for more than 30 years, representing and consulting international and diplomatic entities and sovereigns. He has also served as a NYS Administrative Law Judge, Senior Attorney, Child Abuse Prosecutor, and Commercial Court Law Arbitrator. While a Law Professor at St. John’s University College of Business, he published two e-books (on Contracts and Business Organizations), and has served on the undergraduate and graduate faculties of Penn State University, State University of New York, and universities in Ukraine and Germany.

1. CONSULAR NOTIFICATION AND ACCESS (3rd Ed., Sept. 2010), U.S. Department of State, Office of the Legal Advisor and Bureau of Consular Affairs;
2. The term foreign national does not imply that the person necessarily is a citizen of the sending or any other country.
3. See various consular officers’ rankings at CONSULAR NOTIFICATION AND ACCESS, ibid., Part 3.