MEMORANDUM TO: Members of the ULC Study Committee re Art. 36 of the Vienna Convention on Consular Relations Ann Walsh Bradley, Commissioner Joseph Colquitt, Commissioner Jack Davies, Commissioner (Division Chair) Michael Houghton, Commissioner, Chair of ULC Executive Committee Justin Houterman, Commissioner Linda K. Neuman, Commissioner John A. Sebert, ULC Executive Director Elisa White, Commissioner Steve Wilborn, Commissioner Committee Advisors and Observers Dan Hall, National Center for State Courts Kathleen Hooke, U.S. State Dept. Nisha Prabhu, U.S. State Dept. David P. Stewart, ABA Criminal Justice Thomas P. Sullivan, Esq. FROM: Grant Callow, Chair DATE: April 20, 2010 SUBJECT: Charge to committee; text of Article 36 of the VCCR; preliminary identification and outline of issues to be addressed I am pleased and honored to chair this committee and thank you for your willingness to serve and help fulfill the charge to the committee. The purpose of this memo is to give the committee and its advisors/observers some basic information to help the committee begin its work. The information includes: 1) the official charge to the committee; Page 1 of 10
2) the text of Article 36 of the Vienna Convention on Consular Relations (VCCR); 3) guidelines and other information published by United States Dept of State regarding the duties imposed upon law enforcement personnel in the United States by the VCCR and other international agreements to which the United States is a party (provided in a separate accompanying document); 4) a preliminary outline of issues for the committee to consider as it begins its work. I ask that the members of the committee and its advisors/observers please review this material in preparation for a teleconference that I would like to have sometime during the latter half of May. (The guidelines document of U.S. Dept of State seems long but is a relatively quick read.) I envision the conference call lasting about 90 minutes and occurring sometime between noon and 4 pm CDT one day during the week of May 24th. We will schedule it when the most members of the committee and its advisors and observers can participate. You will be getting an email asking you about your availability and time preference for a conference that week and I ask that you please reply to that as soon as possible. It is my hope that at the end of that teleconference the committee will have a developed a general plan and timeline to accomplish its tasks. In preparation for that teleconference I invite each of you to submit via email any ideas you may have that will help the committee identify and refine the issues it should address to best accomplish its goals. Please send your suggestions both to me [grant.callow@gmail.com] and to Executive Director John Sebert [john.sebert@nccusl.org]. Formal Charge to the Study Committee In case you have not yet seen it, what follows is an excerpt of an email from ULC Executive Director John Sebert that provides the resolution of the ULC Executive Committee creating this study committee, stating the charge to the committee, and describing the committee: Page 2 of 10
JEB/International Law - Proposal on state legislation to implement the consular consultation requirements of Article 36 of Vienna Consular Convention. The Executive Committee adopted the following resolution: RESOLVED, that a study committee be formed to examine the feasibility of drafting state legislation to implement the Consular Consultation Requirements of Article 36 of the Vienna Consular Convention. Description of the Study Committee: Study Committee on an Act to Implement the Consular Notification Requirements of Article 36 of the Vienna Convention on Consular Relations Article 36 of the Vienna Convention on Consular Relations (1963), which the United States ratified in 1969, provides that when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and any trial. A number of states and law enforcement agencies implement these requirements through rules, regulations or policies, but only a small number of states have legislation on this matter. This Committee will consider and make recommendations concerning the need for and feasibility of drafting a uniform act that implements the consular notification requirements of Article 36 of the Vienna Convention. Text of Article 36 of the VCCRF 1 Article 36: Communication and Contact With Nationals of the Sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: 1 The text of the entire VCCR can be found at: HUhttp://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdfU Page 3 of 10
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. Preliminary Outline of Issues I. Is there a need for a uniform state law? A. Is there a significant problem with non-compliance? 1. Statistics re detention/arrest of foreign nationals in U.S.? Page 4 of 10
F ) 2. Statistics re compliance/non-compliance with Art 36 by state and local law enforcement agencies? B. If there is a problem with non-compliance, then 1. Why is increasing compliance by state and local law enforcement agencies important? (Note possible consequences under Article 60(2)(b) and countermeasures 2 allowed by customary international law.f 2. What are the main reasons for the non-compliance with Art 36 by state and local law enforcement? (Reasons for non-compliance will guide analysis of need for and selection of appropriate methods for solving problems of non-compliance by means of a remedial uniform state law act.) a. Ignorance of Art 36 requirements? (Would suggest need for law to promote education re existence of Art 36 and its requirements, the importance of timely compliance and how to comply.) b. Lack of information re who and how to contact, and the content of the notices required to be given? (Suggests law to promote education re who and how to contact, and the content of notices that must be given.) c. Negligent non-compliance? (Suggests increased need for supervision; instruction of importance of compliance; possible sanctions for non-compliance) 2 USeeU Comment, International Law and Constitutional Law: International Court of Justice and Executive Power--Interpreting and Implementing International Treaty Obligations Medellín v. Texas, 128 S. CT. 1346 (2008), 85 UN.D. L. Rev.U 435, 465-66 (2009) Page 5 of 10
F of d. Willful non-compliance? (Suggests increased need for supervision and effective deterrents.) e. Any financial/fiscal reasons for non-compliance? 3. Efforts undertaken or contemplated by U.S. Dept. of State and other govt organizations to improve/maximize compliance? a. USeeU Dept of State published guidelines at HUhttp://travel.state.gov/law/consular/consular_753.htmlU b. USeeU 28 CFR 50.5 c. USeeU 8 CFR 236.1(e) 4. Any UactiveU remedial actions taken or contemplated by Congress to increase/maximize compliance with Art 36 by state and local law enforcement? If not, why not? 5. Might Congress take UpassiveU remedial action - Ui.eU., socalled cooperative federalism methods? (USeeU Sept. 27, 3 2007 memof Commissioner Kathleen Patchel, p. 10) a. Conditional spending b. Conditional preemption. 3 See HUhttp://www.law.upenn.edu/bll/archives/ulc/jeb/patchel_memo.pdfU Page 6 of 10
F and 6. What have the individual states of the U.S. done and are there any proposals that have been made to promote increased and maximum compliance with Art 36 by state and local law enforcement agencies? (USeeU Ue.gU., Cal. Penal Code 834c). a. What are they? b. Have any state actions taken had a significant effect in increasing such compliance? c. If not, why not? C. What reasons exist to believe that a uniform state law could significantly increase compliance with Art 36 by state and local law enforcement officers? D. Other issues re need for uniform state law (Ue.gU., demonstrate to international community the U.S. commitment to fulfilling 4 treaty obligations; avoid possible retaliationf thereby protect U.S. citizens in foreign countries.) II. Feasibility of drafting a uniform state law that is likely to result in significantly greater compliance with Art 36; will not be likely to diminish compliance with any other law (UseeU III A, below); and has reasonable prospects for widespread adoption A. Are state legislatures likely to be reasonably receptive to enacting an act that purports to enforce the rights of foreign nationals who have been detained by state law enforcement 4 USeeU text accompanying footnote 2, above. Page 7 of 10
agencies and that imposes additional responsibilities and duties upon state and local law enforcement agencies? B. Means by which state laws could significantly increase compliance with Art 36 requirements 1. Increased education of state and local law enforcement officers a. What would be likely nature and scope of effective increased law enforcement education? b. What would be the costs of such education and the effects of associated fiscal notes on enactability? 2. Sanctions for non-compliance a. Limitations by other law? (Ue.gU., possible limitations on consequences imposed by collective bargaining agreements with law enforcement?) b. Negligent failure to comply Are there any permissible consequences that could be imposed under state law for negligent failure to comply with Art 36 of the VCCR that would likely be: i. Effective? ii. Acceptable to state and local law enforcement? Page 8 of 10
iii. Acceptable to all or most state legislatures? b. Intentional failure to comply. Are there any permissible consequences that could be imposed under state law for intentional failure to comply with Art 36 of the VCCR that would likely be: i. Effective? ii. Acceptable to state and local law enforcement? iii. Acceptable to all or most state legislatures? C. What would be a reasonable estimate of the time needed for drafting? III. Other considerations re advisability of drafting project A. Need to avoid confusion with other laws re consular notification One issue raised by the charge to the committee is that Article 36 on its face requires law enforcement agencies to notify appropriate consular officials of a country when a citizen of that country is arrested or detained in the United States, and to permit consular staff access to the detainee, but only if the detainee requests such notification and access. However, as shown in the accompanying guidelines provided by the U.S. Dept of State, the United States has other agreements with at least 50 countries that require law enforcement agencies in the U.S. to Page 9 of 10
notify the appropriate diplomatic officials of a foreign country promptly whenever one of that country s citizens is arrested or detained even if the detainee has made no such request. Any uniform state law that would specify what is necessary to comply only with Art 36 might easily lead to confusion that might result in instances of non-compliance with the other international agreements that require consular notification if every case regardless whether the detainee has requested such notification. B. Any reasonable possibility of any significant negative consequences that might flow from the drafting of such an act or efforts to have the act enacted by the states? (Ue.gU., if only a few state enactments, international community has more grounds to believe that U.S. is unwilling to comply and has a double standard; increased danger of retaliation and corresponding danger to U.S. citizens who may be detained in other countries.) C. Potential sources of opposition to any such uniform state law other than based on any issues other than those identified above? Page 10 of 10