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7. U.S. Department of State telegram to all U.S. diplomatic and consular posts abroad concerning consular assistance for American nationals abroad, January 1, 2001.


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UNCLASSIFIED

R 182329Z JAN 01

FM SECSTATE WASHDC

TO ALL DIPLOMATIC AND CONSULAR POSTS ROUTINE

SPECIAL EMBASSY PROGRAM

PRISTINA POUCH

FREETOWN POUCH ZEN/DUSHAMBE POUCH ZEN/BELGRADE

UNCLAS STATE 10160

E.O. 12356: N/A

TAGS: CASC, CMGT, KCRM, KJUS, ASEC

SUBJECT: CONSULAR ACCESS AND NOTIFICATION

REF: (A) 97 STATE 155249, (B) 7 FAM 410-415.4-1

1. This is an action request. See para 6.

2. Summary: consular notification of and access to a detained or arrested U.S. citizen has long been crucial to providing basic protective services abroad. Recognizing the linkage of our performance within the U.S. in this area to the situation overseas, the Department is working to improve our record domestically. The Department attempts to monitor other countries' compliance with notification and access requirements and to ensure consistency between our domestic guidance in coordinating with U.S. law enforcement regarding foreign nationals and overseas practice. Recently we have noticed numerous examples where the delays in notification seem to be unreasonably long or where an explanation for the delay has not been provided. This cable provides updated guidance to posts on how to handle such delays. End summary.

 

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WHAT IS CONSULAR NOTIFICATION?

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3. Rooted in customary international law and practice, consular notification was codified over the last half century in the Vienna Convention on Consular Relations of 1963 (VCCR) and various bilateral consular agreements. Because of its near universal applicability, article 36(1)(b) of the VCCR established the baseline for consular notification. This article provides that in arrests and detentions, detained foreign nationals must be informed "without delay" of their right to have their consular officials notified of their arrest or detention, and that, if the foreign national so requests, consular officials of the home country must be notified of the arrest or detention "without delay."

4. The Department has interpreted the term "without delay" in the VCCR as meaning, generally, that there should be no deliberate delay, and notification should occur as soon as reasonably possible under the circumstances. The Department believes that notification within 24 hours would, prima facia, be considered to be "without delay" and that notification within 72 hours would, in most circumstances, be considered to be "without delay." The Department similarly considers notification within 24-72 hours to be timely under bilateral consular treaties unless the language of the bilateral agreement specifies a different time frame.

5. Under the VCCR, the form of notification is not specified and may take any form reasonably calculated to relay the relevant information to the consular officer so that the officer may take necessary steps to provide consular protective services, including requesting and gaining consular access. thus, notification may be in writing (by diplomatic note, letter, or any other writing) or orally (in person or, for example, a message left on an answering machine). Faxing or e-mailing the notification to the consular officer can greatly expedite receipt of notification and should be encouraged. The Department believes that to be useful, the notification should, at a minimum, provide the name and place of detention of the foreign national, and instructions for obtaining additional information should the consular officer wish to do so. Posts may also encourage host governments to provide other details known to the host government, such as dpob, passport information, and any other information which could be helpful to the consular officer such as the charges or allegations against the detainee. (only a few of our bilateral agreements address the nature of the information to be provided.)

 

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AND IF DELAY IN NOTIFICATION IS UNREASONABLE?

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6. Action requested: Drawing on the guidance in paras 3-5 above and 7 FAM 411, 412, and 415, posts should assess whether an impermissible delay in notification has occurred whenever post becomes aware that an American citizen has been detained. If a delay has occurred, post must report that delay in paragraph 16 (notification) and paragraph 23 (remarks) of the standard arrest cable (7 FAM Exhibit 416.1). In addition to the date and manner of notification, post must also include a succinct statement as to the reason for the delay, if known, any information as to whether the detainee requested notification or was informed of the right to do so, and any action or protest post plans to take in response to a delay that appears unreasonable or unjustified. In countries that are parties to the VCCR, posts should presume that there is a question of compliance with VCCR article 36 if the host government has failed to notify the post of the arrest or detention of a U.S. citizen within 72 hours and the host country is a signatory to the VCCR. See 7 FAM 415.4-1.

 

7. In VCCR cases where notification has not been timely (not made within 72 hours), and post has not been able to confirm that the detainee did not ask for notification after being informed of the right to it, posts should promptly protest the notification violation in accordance with 7 fam 415.4-1. (in countries where consular notification is at the option of the detainee, the post should first ascertain whether or not the prisoner requested consular notification of the arrest/detention after being informed that he or she could do so. If not, this would preclude a conclusion that the delay in notification was unreasonable.) Note that, while the VCCR provides that consular notification is at the option of the detainee, 56 countries are governed by bilateral consular conventions under which consular notification is mandatory whether or not the detainee/arrestee wishes the consular officer to be informed. Posts should be familiar with the treaty provisions applicable to the host country.

In the event of long notification delays, particularly in cases of serious crimes or where the U.S. citizen could face severe penalties, the protest should include a request for an investigation of the notification violation and a report from the investigating authority promptly. The form of protest is left to the post's discretion. It should be noted, however, that in any case where excessive delay in notification appears to be part of a pattern of activity by the host government, or where there is an indication of mental or physical mistreatment of the prisoner during the period of the delay in consular notification, post's diplomatic note of protest should be cleared and coordinated with the department. See 7 FAM 415, exhibit 415.2 for an example of a protest note. The protest should immediately be reported to the department, either in the initial arrest cable or by septel.

8. There will be instances where, in post's judgment, a notification beyond the 72-hour time period is reasonable under the circumstances and therefore does not constitute a deliberate or unacceptable delay. In such cases, a post should report the circumstances that justify the longer notification time period. For example, because an arrest occurs in a particularly remote area of the host country, or specific communications problems are present, notification is delayed beyond that normally experienced in the host country. When notification is received in such cases, post should report to the department why, in post's judgment, a delay beyond 72 hours is not unreasonable under the circumstances.

 

9. Per 7 FAM 415.4-1, protesting unreasonable delays in consular notification is not discretionary but has long been an integral element of u.s. policy to provide protective consular services to detained Americans overseas. A recent review of incoming arrest cables has demonstrated that at present there is significant inconsistency in the field in complying with the reporting and protesting requirements. Numerous arrest cables reveal significant gaps between the arrest and the date of consular notification but do not address the reason for the delay nor do they address the issue of protests. The Department reminds posts that arrest reporting must indicate timely notification or the reason for delay and the intention to protest or an explanation of why a protest is not justified in the particular case.

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DUAL NATIONALS

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10. Arrest in the Country of the Other Nationality:

Generally speaking, consular notification is not/not required by treaty if the U.S. citizen detainee is also a citizen of the country where the arrest occurred. This is true even if the detainee's other country of citizenship is a mandatory notification country. It is a generally recognized rule of international law that when a person who is a dual national is residing or traveling in either of the countries of nationality, the person owes paramount allegiance to that country. The country of residence generally has the right to assert its claim without interference from the other country of nationality. Thus, in the absence of agreements to the contrary between the United States and other nations, if a dual national encounters difficulties in the country of the second nationality, the U.S. government's representations on that person's behalf may or may not be accepted. Nevertheless, it is the Department's policy to intervene on behalf of all Americans, and make representations on their behalf, regardless of dual national status. In these situations, posts should notify the department of the particular circumstances of the case and seek guidance.

11. Naturalized U.S. Citizens and Dual Nationals Descended From Naturalized U.S. Citizens:

This situation can be particularly sensitive with regard to the arrest of U.S. citizens who were not aware they were also nationals of another country, or who are unable to relinquish their other nationality. This includes naturalized U.S. citizens who were unable to divest themselves of the nationality of their country of birth due to either the lack of procedures to permit relinquishment of the other nationality, or the fact that such procedures are extremely difficult to satisfy, are protracted and/or expensive. Such an individual may consider and conduct himself/herself exclusively as a U.S. citizen, but find that the country of origin still regards him/her as a national of that country. In addition, some countries regard allegiance to the subject's ancestral country of origin to extend to the next generation. In countries with this extended family interpretation of citizenship, or where naturalized u.s. citizen dual nationals traditionally experience problems, this fact should be reflected in the consular information sheet and in the post arrest information sheet (7 FAM 413.4), which should be available on the post's home page on the internet. The Department would normally not agree that the host country could rely on the person's technical dual nationality to prevent the United States from extending consular protection to such a person. These cases raise tricky legal issues and should be coordinated with the Department.

 

12. Special Consular Agreements Regarding Consular Notification and Access to Dual Nationals:

The United States has consular agreements or arrangements with China, Poland, Vietnam, and North Korea that address questions of dual nationals and similar assistance. These agreements provide that "all nationals of the sending state entering the receiving state on the basis of travel documents of the sending state containing properly executed entry and exit visas of the receiving state will, during the period for which their status has been accorded, and in accordance with the visa's period of validity, be considered nationals of the sending state by the appropriate authorities of the receiving state for the purpose of ensuring consular access and protection by the sending state." This does not necessarily imply that the two governments recognize dual nationality. Note that the U.S. requires its citizens to enter/leave the U.S. on U.S. passports, a requirement that effectively bars question of these problems in the United States.

13. Rights and Responsibilities of the U.S. Regarding Dual National Arrests:

When dealing with dual nationals, it is helpful to distinguish between (1) the right of the U.S.G., through a U.S. consul, to provide consular services to the dual national and (2) the right of the dual national, as a u.s. citizen, to receive consular services from the U.S.G. without regard to his or her other nationality. It is important, per 7 FAM 413e, that a dual national traveling in a third country on a U.S. passport must clearly be regarded by the host country as a u.s. citizen to ensure that he/she is permitted to receive the full range of consular services provided to any American. On the other hand, a dual national traveling abroad on a passport of that person's other country of nationality may find that the host country treats him/her only as a national of the country whose passport he/she carries, and does not recognize the united states as a country entitled to provide consular services. This does not, however, change the fact that the U.S.G. must treat the U.S. citizen like any other U.S. citizen, and should seek to do so to the fullest extent permitted by the host country. In such a situation, the U.S. consul should pursue all appropriate consular responsibilities. If the second country of nationality is providing protective services to a dual national, U.S. consular officers should consult with the prisoner and their foreign consular colleagues to ensure appropriate protection is provided to the arrestee. The post should continue to follow significant developments in the case and report them to the Department, particularly with regard to any mistreatment or severe penalty. Balancing which country of nationality will provide consular assistance may depend both on the extent of the individual's ties to each country and the immediate consular resources of each country. Again, posts should consult with the Department as necessary.

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CONSULAR ACCESS

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14. Article 36(1)(c) of the VCCR sets forth the requirement that the host government allow consular officers access to detained nationals to converse with them, arrange for their legal representation and to take other actions to provide for their welfare, consistent with local law. Article 36(1)(a) provides that consular officers and their nationals shall be free to communicate and have access to each other. Similar to the requirement of timely notification, these provisions and similar language in bilateral treaties require host governments to provide consular officers timely access to detained U.S. citizens. It is U.S. policy that prompt personal access is necessary. This demonstrates to both the detained citizen and the host government the serious interest of the U.S. government in the case and in the welfare of our citizens, and allows first-hand confirmation of the citizen's wishes and needs. Even in the case where a U.S. citizen informs the host government he/she does not want consular assistance, the consular officer should visit the U.S. citizen personally to verify his/her U.S. citizenship, to reassure the citizen of our interest in providing him/her assistance, and to verify directly that no assistance is desired. Only in this manner can a consular officer be satisfied that the citizen's rights within the host country are being protected. See 7 FAM 415.

15. Per 7 FAM 412.1, except under extraordinary circumstances, a consular officer must personally visit a detained American citizen as soon as possible, normally within 48 hours of receipt of notification, or an explanation must be provided to the department of why a personal visit could not take place in that time frame. If a personal visit is not possible within 48 hours, initial telephone contact or a visit by a consular agent or volunteer should take place, but this does not relieve the consular officer of the obligation for a personal visit as soon as possible (see 7 FAM 412). This initial contact should be included in the arrest reporting cable if possible.

16. Any delays in granting access by host governments must be reported to the Department in the arrest cable and protested to the host government per 7 FAM 415. A review of recent arrest cables indicate significant inconsistency among posts in this practice. It should be noted, however, that in any case where excessive delay in access appears to be part of a pattern of activity by the host government, or where there is an indication of mental or physical mistreatment of the prisoner during the period of the delay in consular access, post's diplomatic note of protest should be cleared and coordinated with the department. Similarly, post concerns regarding delays in frequency of access after initial visit for prisoners who may be at risk due to medical or mental health should be brought to the attention of the Department which will coordinate with post on any protest language. Patterns regarding delays in consular access should be reflected in the consular information sheet and the post arrest information sheet required by 7 FAM 413.4. In preparing the arrest information sheet consular sections should coordinate with other post sections engaged in reporting on prison conditions. The human rights report section on "respect for human rights, torture, and other cruel, inhuman or degrading treatment or punishment" frequently includes a discussion of local prison conditions, including problems with access to prisoners.

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SPECIAL NOTIFICATION CASES - DEATHS, MINORS, PERSONS LACKING FULL CAPACITY, AVIATION/VESSEL ACCIDENT

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17. Posts should also be aware that Article 37 of the VCCR requires notification by host country officials in instances of the death of a foreign national; appointment of guardian or trustee of a minor or other person lacking full capacity who is a foreign national; and if a vessel or aircraft registered in a foreign country suffers an accident. With respect to notification of the death of a U.S. citizen arrested or detained abroad or the appointment of a guardian or trustee for a U.S. citizen arrestee found to lack full capacity, posts should follow similar procedures to monitor compliance with these provisions, protest failure to comply, and notify the Department. (Of course, this obligation under Article 37 of the VCCR to notify posts applies to any U.S. citizen under these circumstances not simply U.S. citizens incarcerated abroad. if in any case excessive delay in notification appears to be part of a pattern of activity by the host government, or where there is an indication of serious implications for the health or well-being of a U.S. citizen as a result of such a delay, post's diplomatic note of protest should be cleared and coordinated with the Department. (The topics of consular assistance for medically or mentally incapacitated u.s. citizens abroad, protection of minors (child abuse, abandonment, neglect and exploitation), and transportation accidents will be the subject of separate aldac telegrams now being prepared by the Department (CA/OCS/PRI)).

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OUR PRIMARY MISSION - THE PROTECTION OF AMERICANS

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18. If we are to be effective in protecting the rights of U.S. citizens detained or otherwise in distress abroad, we must first know their situation and we must be vigilant in personally assisting them. By consistently protesting violations, of notification and access obligations, we reinforce with the host government the seriousness with which we take our consular responsibilities and underscore our efforts to protect our citizens against any abuse, mistreatment or discrimination.

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AND FOR THE RECORD

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19. As posts are aware, cases involving U.S. citizens overseas are frequently of interest to congress and the media. Reporting any protests of delays in notification and access to the department and making them a matter of record in the acs file of the detained American is essential in the event questions about our vigilance or the equality of treatment of all U.S. citizens should be raised. Such reporting and record keeping allows the Department to be more responsive to Congressional and media requests.

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OUTREACH PROGRAM

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20. In 1997, in response primarily to death penalty cases involving foreign nationals who had not been informed that they could request consular assistance, the Legal Adviser's office started a domestic effort to improve compliance with the consular notification and access provisions of the Vienna Convention on Consular Relations and some bilateral consular agreements and to address concerns of foreign governments about cases of apparent non-compliance by the U.S. In late 1998, the Secretary named a senior coordinator for consular notification to lead the Department's ongoing efforts to improve compliance by local, state and federal officials throughout the United States. The senior coordinator works closely with the regional bureaus, CA, DS, OFM, PA, Protocol and others to implement the Department's domestic outreach strategy through such efforts as seminars for law enforcement personnel, and distribution of the Department's "consular notification and access" brochure and pocket cards. (The brochure is available on the Department's website under the letter "c" in the index). The brochure contains (see Part V. Legal Material) text of relevant portions of the VCCR and bilateral treaties. The coordinator also works with others to investigate foreign embassies' alleged violations of consular notification and access by U.S. authorities, apologize if the allegation is confirmed, to undertake efforts to prevent future recurrences and frequently deals with foreign embassies in Washington to address concerns arising from these issues. To ensure consistency between our work domestically and abroad, it is essential that possible violations of the consular notification and access provisions of the VCCR and bilateral conventions in instances of Americans detained/arrested abroad be reported to the department promptly and if appropriate that the delays be protested.

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QUESTIONS

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21. Any questions posts may have regarding this guidance should be referred to the appropriate geographic office of CA/OCS/ACS or the CA/OCS/PRI e-mailbox askpri@state.gov. Posts assistance is appreciated.

Albright

__________________________________________________

Additional Addressees:

SPECIAL EMBASSY PROGRAM

PRISTINA POUCH

FREETOWN POUCH ZEN/DUSHAMBE POUCH ZEN/BELGRADE POUCH



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