It’s an international legal document that touches on the daily lives of millions of people around the globe, as they travel the world, cross borders and interact with new cultures.
Touching on issues from international adoptions, to travel emergencies, to dual citizens, to the rules governing the exchange of officials between countries, the 1963 Vienna Convention on Consular Relations (VCCR) is a key piece of international law. So, what is its relevance 50 years after its signing? In a world of globalized culture and commerce, are there changes that need to be made to the agreement?
Law professors, diplomats, students and others reflected on this very question at a conference held January 17, 2013 at The Fletcher School of Law and Diplomacy to commemorate the half-century anniversary of the VCCR. Ambassador Michele T. Bond, U.S. principal deputy assistant secretary of state for Consular Affairs, underscored the reality that “consular affairs” is in no small part the basis for U.S. diplomacy around the world.
“The VCCR is the formal recognition of the importance of consular work and of a country’s overall diplomacy,” Ambassador Bond said. Although the work done in response to crises “tends to get the most public attention,” the conference focused on the broader context of consular affairs. “[The VCCR] establishes a framework for doing consular work and sets expectations that we share of how each country will protect its citizens in foreign countries.”
The interaction of a foreign national with a consular officer could be the only interaction that the person has with an American citizen, Ambassador Bond observed. “This can be a memorable exchange and can have a huge impact on international impressions of the U.S.”
“The image of the U.S. is reestablished millions of times every year,” she said.
For many international travelers, the VCCR serves as the basis for legal protection in the event, for example, of arrest by police. Under Article 36 of the Vienna Convention, consular officers have the right to communicate with their nationals and to have access to them if they are held in custody. Persons thus detained have the right to consular assistance. The local competent authorities of the receiving state must, “without delay,” inform the appropriate consular post of a detainee’s request for help.
Although consuls, within the ample framework of the VCCR, have made great strides in protecting citizens traveling outside of their countries, there are challenges that persist.
With regard to arrest, Stacey Saufert, a lawyer with the Department of Justice Canada in Ottawa, highlighted the point that dual citizenship adds a layer of complication.
“A dual national detained in a country of one of their nationalities can have difficulty obtaining consular services from the nation of their other citizenship,” Saufert said. “This increases the complexity of consular responsibilities.”
Consul General Daniel Hernández Joseph, head of the Mexican Consulate in Boston, pointed out the close familial and cultural ties many people living in the United States have with Mexico. “One in four Mexicans in Mexico has a close relative living in the United States.” Many families residing here have a parent with one nationality and a child with another, complicating consular protection efforts, he said.
The issue of international adoptions is another area closely linked to the VCCR. Panelists called the December decision by the Russian government to halt adoptions of Russian children by American families a prime example of the type of human difficulty — and troubleshooting work — that consular officers are frequently drawn into.
The issue of enforcing the provisions and protections of the VCCR within the United States is a very complex and disputed subject. Michael Glennon, a professor of law at The Fletcher School, emphasized the lack of enforcement provision for consular notification in the VCCR. The question ultimately led to a sweeping U.S. Supreme Court decision in 2008 in Medellin v. Texas, which examined whether the legal provisions of an international treaty automatically apply in U.S. domestic law, or if there needs to be corresponding implementing legislation. The Supreme Court ruled in a divided decision against the view, including that of the Executive Branch under President George W. Bush, that the State of Texas could be required to review the convictions and sentences of foreign nationals (in this case, Mexican citizens) who had not been advised of their Vienna Convention rights.
“Though there is a policy solution to the non-enforcement of the VCCR, it would prove politically infeasible,” Glennon argued. In theory, Congress could pass a law to empower the courts to direct local authorities to honor the VCCR. However, “it’s not going to happen,” politically, Glennon states. Local authorities, if informed and responsible, are going to have to do it “on their own.”
The current vast increases in foreign travel, international migration and worldwide economic integration, as well as cross-border crime and terrorism, are making the consular function — no longer the “Cinderella service” — no less important than the diplomatic function, concerned with high politics.
The Fletcher School of Law and Diplomacy is a pioneer in the field of consular studies. At the VCCR @ 50 conference, tribute was paid to the work of Fletcher graduate Luke T. Lee, author of the widely used Consular Law and Practice, first published in 1961 and now in its third edition. From 1970 to 1977, Dr. Lee was professor of international law at The Fletcher School where he taught a course on consular law and was director of the Law and Population program.
The VCCR @ 50 conference at The Fletcher School was attended by many members of the Consular Corps in Boston and of other local associations. Its panels included speakers who came from Canada, Belgium and China as well as from Washington, D.C. The conference was organized by Professor Alan Henrikson, director of Diplomatic Studies, and Professor Hurst Hannum, director of the LL.M. program, working in cooperation with U.S. State Department Fellow Jennifer Bachus and with the help of a group of interested Fletcher students, a number of whom, along with students in International Relations at Boston University, presented their work in a student panel during the conference.
Samantha Lakin (MALD 2014); Tameisha Henry (MALD 2014)
For more details on the conference, visit the VCCR @ 50 website.