Publication: Rights of Foreign Nationals in the United States

Publications

"Rights of Foreign Nationals in the United States", 30 Alameda County Bar Association Bulletin, No. 1, p. 27 (1999)

Rights of Foreign Nationals in the United States
by Patrick Campbell, International law Committee

In interpreting the rights guaranteed in international treaties, the United States has adopted a schizophrenic approach: happy to bring foreign individuals before international tribunals to answer for war crimes and genocide in Germany, Japan, Bosnia and Rwanda, but recently voting against the Rome Treaty to establish an international criminal court. The xenophobia underlying this approach has evidenced itself in the application of rights guaranteed under international law to foreign nationals residing in the United States.

This year, Paraguay brought a petition before the International Court of Justice (ICJ) seeking to prevent the execution of one of its citizens, Angel Francis Breard, who had been convicted of murder and sentenced to death by a Virginia state court. Mr. Breard had not been informed of his right to contact consular officials from his country, nor were consular officials informed of his detention or granted access to him. Both of these rights are guaranteed in the Vienna Convention on Consular Relations of April 24, 1963 (21 U.S.T. 77) [hereinafter the "Convention"].

The ICJ granted provisional relief to Paraguay and ordered the United States to take "all measures at its disposal" to ensure that Mr. Breard was not executed before a decision on the merits. Case Concerning the Vienna Convention on Consular Relations (Parag. v. U.S.) 1998 I.C.J. __ (Apr. 9, 1998). The Fourth Circuit Court of Appeals earlier had rejected these arguments even though it recognized that the Convention had been violated. Republic of Paraguay v. Alien, 134 F. 3d 622 (4th Cir. 1998).

The Fourth Circuit held that it did not have jurisdiction over the matter because of the immunity granted state officials under the Eleventh Amendment to the Constitution. The court further held that the two exceptions to this immunity — where there is a continuing violation of a treaty and where the violation is prospective (Ex Pane Young, 209 U.S. 123 (1908)) - did not apply.

Mr. Breard was executed and Paraguay ultimately withdrew its petition before the ICJ. Nevertheless, with the large number of foreign nationals residing in California, it is important to understand the provisions of the Convention, which at least as far as the federal courts are concerned are self-executing. The Convention guarantees foreign nationals rights in both criminal and civil proceedings.

Article 36 of the Convention applies in criminal proceedings. Section 1(a) of this article guarantees foreign nationals and their consular officials free access to and communication with each other. Under section 1(b), if a foreign national is "arrested or committed to prison or to custody pending trial or is detained in any other manner," the state authorities must notify the consular post upon the request of the foreign national. In addition, authorities have an affirmative duty to inform the foreign national of these rights. Dozens of signatory countries to the Convention have made this notification requirement mandatory, i.e., not contingent upon the request of the foreign national.

Section 1(c) provides for access to and communication with foreign nationals in prison, custody or detention. It also allows the consular officials to arrange for legal representation. However, the consular officials may not take any action on behalf of the foreign national if the foreign national opposes it.

The applicability of the notification rights incident to arrest, prison commitment, custody pending trial or detention "in any other manner" would seem to indicate that these rights are broader than those provided under Miranda. While the Convention's guarantees are to be exercised in conformity with local laws and regulations, those laws must "enable full effect to be given to the purposes for which the rights accorded under this Article are intended." Article 36(2).

Article 37 concerns notification of consular officials in certain civil settings. Section (a) of this Article provides for notification of consular officials in the case of death of a foreign national. Section (b) requires notification of the appointment of a guardian or trustee over a foreign national. However, such notice is without prejudice to the operation of law concerning such proceeding. Finally, under section (c), if a foreign registered vessel wrecks or a foreign aircraft crashes on the state’s territory, the appropriate consular officials must be notified.

To obtain more detailed information on the Convention, go to the web page for the Bureau for Consular Affairs, United
States State Department, at http://travel.state.gov/. It has listings for consular notification and access which outline the guarantees provided to foreign nationals in the United States and suggests written warnings concerning these rights. It also includes a list of the signatory countries that require notice in spite of the foreign national's statement to the contrary. Contact with the appropriate consular officials is facilitated by a connection to a listing of all of the embassies and consulates in the United States.

The states and their officials have a duty to guarantee the rights outlined in the Convention. Lawyers who represent foreign nationals should be aware of these rights and assert them when appropriate. California's courts and its officials — state, county and local — should ensure that foreign nationals enjoy these international rights while residing here. As the old saying goes, charity begins at home. The recognition of international human rights is no different.