c. Special Family Visits d. Providing Personal Amenities e. Prison Employment f. Correspondence Courses g. Personal Conversation * h. Contacts with Family and Other Interested Parties The consular officer should answer promptly and as responsively as possible all inquiries received from a prisoner's next-ofkin (NOK), Members of Congress, and the Department. In responding to inquiries Privacy Act requirements must be respected. At the request of the prisoner, the consular officer may write or send a telegram directly to NOK to advise them of a prisoner's need or to assure them of the prisoner's well-being. 445 Prisoners Who Do Not Wish to Be Visited Prisoners who do not wish to see a consular officer should generally have their wishes respected. However, before noting in the records of the case that a prisoner has expressed such a desire, the consular officer should get the information directly from the prisoner, if possible. After ascertaining to the officer's satisfaction that a prisoner really does not wish to be visited, the consular officer should report that fact to the Department. If subsequent events indicate that the prisoner has changed this decision, or that overriding considerations may make an interview necessary, the consular officer should not hestitate to ask to see the prisoner. When visiting a prison in which one or more American prisoners have requested that they not be visited, the consular officer should inquire about their well-being, annotate the files, and report to the Department accordingly. 446 through 449 (Unassigned) OCS Transmittal Letter No. OCS-3, July 18, 1980. Emergency Evacuation of Nationals In a note to the Embassy of Canada, dated September 15, 1980, the Department of State enclosed payment to reimburse the Government of Canada for evacuating American citizens flown from Tehran to Ankara, Turkey, in early 1979, as agreed by the respective Embassies in Tehran. The billing covered six Americans who had signed undertakings to reimburse the Canadian Government, and two others who had not. The remaining Americans evacuated had been employed by Canadian companies operating in Iran, from whom the Canadian Government had sought reimbursement. Dept. of State File No. P80 0124-1921, in response to ibid., No. P80 0124-1922. Consular Conventions United States-German Democratic Republic On April 28, 1980, President Carter transmitted to the Senate for its advice and consent to ratification the Consular Convention between the United States of America and the German Democratic Republic, signed at Berlin on September 4, 1979, together with a separate exchange of letters signed on the same date, that guarantee consular protection of persons who may be regarded as possessing the nationality of both the sending and the receiving States. Part IV of the Convention (Articles 24-44) sets out in general and in detail functions which a consular officer is authorized to perform. Of particular importance to the United States are the provisions of Article 39, that confirm a consular officer's right to communicate and meet with sending State nationals and place specific time requirements upon the receiving State for notification and consular access in cases of detention, arrest, or any other form of limitation upon the personal freedom of a sending State national. Article 39 reads: Communication With Nationals of the Sending State 1. A consular officer shall be entitled, in his or her consular district, to communicate and meet with any national of the sending State, to render him or her any kind of assistance, to assist him or her in dealings with authorities of the receiving State, and to arrange for the assistance of a lawyer and to arrange for an interpreter. 2. The receiving State shall in no way restrict the relations between the national of the sending State and the consular officer. 3. The authorities of the receiving State shall assist a consular officer to obtain information concerning the whereabouts of persons who possess the nationality of the sending State so that the consular officer can communicate or meet with these nationals. 4. In any case in which a national of the sending State is subject to detention, arrest or other form of limitation of his or her personal freedom, the competent authorities of the receiving State shall inform a consular officer of the sending State. This notification shall take place immediately, but, in any event, not later than after three calendar days from the date on which the national was detained, arrested or placed under any form of limitation of his or her personal freedom. Upon his or her request, a consular officer shall be informed of the reasons for which the national has been detained, arrested or otherwise limited in his or her personal freedom. 5. A consular officer shall be entitled to visit a national of the sending State who has been detained, arrested or subjected to any other form of limitation of his or her personal freedom, including such national who is in custody pending trial or who is serving a prison sentence in the receiving State, to converse and to correspond with him or her in the language of the sending or the receiving State or to arrange for his or her legal representation. These visits shall take place as soon as possible, but, in any case, not later than after four calendar days from the date on which such national has been detained, arrested or subjected to any other form of limitation of personal freedom. The visits may be made periodically, but at intervals of not more than one month. 6. The competent authorities of the receiving State shall immediately inform the national of the sending State who is subjected to any form of limitation of personal freedom of all rights accorded to him by this Article to communicate with a consular officer. 7. A consular officer shall be entitled to receive from and send to a national of the sending State who is under any form of limitation of personal freedom letters or other correspondence. 8. A consular officer is entitled to provide a national of the sending State who is under any form of limitation of personal freedom parcels containing items for personal use such as food, clothes, and reading and writing materials, in accordance with the regulations of the detention facility concerned. 9. In the case of a trial of a national of the sending State in the receiving State, the appropriate authorities shall, at the request of a consular officer, inform such officer of the charges against such national. A consular officer may be present during all judicial proceedings against such national, in accordance with the applicable judicial procedures of the receiving State. 10. The rights contained in this Article, shall be exercised in accordance with the law of the receiving State, so long as these laws do not nullify the purposes for which these rights are accorded. 11. The provisions of this Article relating to nationals of the sending State shall likewise apply to persons who are also considered by the receiving State to be nationals of the receiving State if the person has entered the receiving State for a temporary stay on the basis of a valid sending State passport or other lawful travel document of the sending State and has received from the receiving State a valid entry visa or other document authorizing entry into the receiving State. The provisions of this Article shall remain valid for such persons even though the temporary period for which they have been authorized to remain in the receiving State has expired due to judicial or administrative proceedings preventing timely departure from the receiving State. Such persons shall also be permitted to leave the receiving State if their travel document issued by the sending State is valid and if an exit visa from the receiving State has been obtained in a manner normally applicable in the case of nationals of the sending State present in the receiving State for a temporary stay. The exchange of letters implementing Article 39 provides that each Contracting Party agrees to consular access to the sending State's citizens in the receiving State, on the basis of generally accepted principles of international law, among which (they recognize) each state has the sovereign right to determine the conditions under which its citizenship is acquired, maintained, or lost. Under Article 26 a consular officer has the right, in accordance with the receiving State's law, to take appropriate measures to protect the rights and interests of the sending State's nationals or juridical persons before the receiving State's courts and other authorities, when because of absence or any other reason they cannot undertake timely defense of their rights and interests; but the consular officer is not authorized to act as an attorney-at-law. Article 34 requires receiving State authorities to notify a consular officer in writing of instances in which it is necessary: (1) to appoint a guardian or trustee for a sending State national, not of age or not in a position to perform legal acts; or (2) to appoint a trustee for a sending State national to administer such national's property in the receiving State, when for whatever reason the national cannot administer it. The consular officer may approach the appropriate receiving State authorities on such matters and may propose appropriate persons to be appointed guardian or trustee. Articles 35-38 cover rights of a consular officer and responsibilities of the receiving State in cases of death and decedents' estates. Article 35 requires receiving State authorities to notify a consular officer of the death of a sending State national. Article 36 requires them to inform a consular officer of the initiation of the administration of an estate as the result of the death in the receiving State of a sending State national, who neither has a representative there nor has left there anyone authorized to administer or conserve the estate. Receiving State authorities must also inform a sending State consular officer of the initiation of administration of an estate in the receiving State, regardless of the decedent's nationality, in which a sending State national, not a permanent resident of the receiving State and not having a representative there, may have an interest. Under Article 37 a consular officer is entitled, in relation to estate matters specified in Article 36, and to the extent permitted under the receiving State's law: to request its competent authorities to take measures to safeguard, preserve, and administer the estate; to be present during, or otherwise to participate in, the taking of such measures; and to arrange for representation of a sending State national with a legitimate interest in the estate, who is neither present nor represented in the receiving State. Article 38 covers the temporary custody and return of monies and personal items of deceased sending State nationals. Other consular functions specified in the Convention include: citizenship matters (Article 27); issuance of passports and visas (Article 28); registration of civil status (Article 29); notarial functions, including acceptance, legalization, or certification of declarations and testamentary dispositions of sending State nationals, and issuance of appropriate documents (Article 30 (a)); service of judicial and other documents on sending State nationals "in accordance with... international agreements . . . in force between the sending and receiving States or, in the absence . . . [thereof], to the extent permitted by the law of the receiving State" (Article 32); safekeeping of articles (Article 33); rendering assistance to vessels (Article 40); rendering assistance to master and crew (Article 41); protection of interests in case of investigations on board a vessel (Article 42); assistance in the case of damage to vessels (Article 43); and functions with regard to aircraft (Article 44). In regard to notarial functions, Article 31 provides that the acts and documents specified in Article 30, legalized, certified or authenticated by a sending State consular officer, shall have the same validity and effect in the receiving State as the acts and documents drawn up, executed, legalized or certified by the receiving State competent authorities, "provided they are not contrary to the law of the receiving State." Article 25, "Exercise of Consular Functions", provides in paragraph 3 that a consular officer may approach orally or in writing the competent authorities within his or her consular district, and the competent central authorities of the receiving State to the extent allowed by its law and custom. S. Ex. F, 96th Cong., 2d sess. (1980). See, also, S. Ex. Rept. 96-41, 96th Cong., 2d sess. (1980). On July 2, 1980, the Senate, by a vote of 90 yeas to 0 nays, with 10 Senators absent and not voting, agreed to the resolution of ratification of the Consular Convention with the German Democratic Republic. Cong. Rec., Vol. 126, Pt. 14, p. 18494. TIAS 10061; entered into force, Feb. 19, 1981. United States-China On September 17, 1980, in a White House ceremony, President Carter and Vice Premier Bo Yibo of the People's Republic of China signed four agreements: an agreement relating to civil air transport; an agreement relating to trade in cotton, wool, and man-made fiber textiles and textile products; an agreement on maritime transport; and a consular convention. In a formal report to the President on the Consular Convention, dated January 15, 1981, to accompany the President's letter transmitting the Convention to the Senate for advice and consent to ratification, Secretary of State Edmund S. Muskie summarized its provisions as follows: |