Georgia Bar Journal
GSB Vol. 13, NO. 4, Pg. 34.
Understanding the Effectsof Consular Relations on the Representation of Foreign Nationals
GSB JournalVol. 13, NO. 4December 2007Understanding the Effectsof Consular Relations on the Representation of Foreign NationalsCarine L. Rosalia-MarionRecent debate regarding immigration reform serves as a reminder that many foreign nationals are now in the United States, whether permanently or temporarily, legally or not. Regardless of their immigration status, however, most foreign nationals who find their way into a courtroom are affected by the Vienna Convention on Consular Relations ("Vienna Convention")(fn1) or a bilateral consular convention between their country of nationality and the United States. The rights granted under these conventions are of significant importance, but few attorneys and courts fully understand the implications of the Vienna Convention and other similar agreements for their foreign clients and for their representation.
The U.S. Department of State's website(fn2) provides comments to the provisions of the Vienna Convention and offers guidance on consular relations. A free copy of "Consular Immunity: Guidance for Law Enforcement and Judicial Authorities" is available from the State Department upon request.(fn3) The first part of this article presents an overview of the role of consular officials in the trial of a foreign national, and the second part offers recommendations for the attorney representing a foreign national.
Recognizing the Interest of Consular Officials in a Foreign National's Trial
Under the Vienna Convention, a consular officer is entitled to protect the interests of the nationals of his state. The Vienna Convention specifically provides that "consular functions consist in . . . representing or arranging representation for nationals of the sending State before the tribunals and other authority of the receiving State"(fn4) and sets out the right of a consular officer to communicate with and visit the nationals of the sending state. Hence, consular functions are not merely limited to legalizing documents and assisting the estate of a citizen who dies abroad. Representation of the detained foreign national or the foreign minor is an integral part of the consular functions expressly protected by the Vienna Convention. Accordingly, a consular officer's involvement in the trial of a foreign national should not be interpreted as interfering with the jurisdiction of an American court.
The Vienna Convention was the result of immense efforts to codify international common-law consular relationships.(fn5) It was largely intended to "contribute to the development of friendly relations among nations."(fn6) The Vienna Convention defines the obligations of signatory States with respect to the treatment of foreign nationals, and lays out the rights and functions of consular officials, as well as the privileges and immunities attached to their posts. The United States Senate approved the Vienna Convention in October 1969,(fn7) and it came into force on Dec. 24, 1969.(fn8) The Vienna Convention has been almost universally adopted: As of June 1997, 165 countries are party to the agreement.(fn9) In addition, bilateral consular conventions predating the Vienna Convention are still in effect between the United States and several countries that are not party to the Vienna Convention.(fn10) Zambia, for example, is not a party to the Vienna Convention, but consular relations between Zambia and the United States are governed by a consular convention signed by the two countries in Washington, D.C., in 1951.(fn11)
Provisions relating to the notification of consular officials(fn12) are designed to protect individuals in dire circumstances by providing them with consular assistance. The language barrier, the difference in culture and an unfamiliar judicial system may expose the foreign national to higher risks than his American counterpart and lead...