Imagini ale paginilor

require the executive branch to provide, inter alia, information with respect to allegations by United States citizens of any incarceration in Mexico contrary to the Mexican laws or constitution, any denial of legal rights, and any inhumane treatment while in custody. The Resolution also requested the executive branch's plans “to carry out the obligations of the President with respect to citizens abroad under section 2001 of the Revised Statutes (22 U.S.C. 1732).”

Mr. Walentynowicz stated, on April 29, 1975, that many countries including Mexico, were enforcing their laws against and penalties for drug violations more vigorously than in the past and that, with large numbers of Americans using drugs, more had become involved in international drug trafficking and were being caught. He described the mission of U.S. consular officers in dealing with the situation as follows:

These officers are expected to make every effort to insure that they learn of each new arrest of an American citizen in their district. Such information may come from the American himself, but more often it comes from the police, news media, or friends and relatives of the accused.

As soon as practicable and in conjunction with his other duties, the consular officer after learning of an arrest seeks access to the accused to establish his identity and citizenship, to ensure he is aware of his rights, to advise him of the availability of legal counsel, to give him a list of local attorneys, to help him get in touch with his family and friends, to alert him to the legal and penal procedures of the host country and to observe if he has been or is in danger of being mistreated.

The accused is responsible for determining how best to defend himself, preferably with the aid of legal counsel. The consular officer is specifically forbidden to act as an attorney or to assume any legal responsibility for the accused American citizen. What the consular officer can do, however, with the citizen's consent, is to protest to host government authorities when issues of denial of human and legal rights occur.

These rights, of course, include the treatment the American citizen receives while confined both before and after the trial. Here again, however, the basic test is not American standards but the standards of the host country. A foreigner must be accorded treatment at least equal to that of the host country's own citizens ...

In his January 1976 testimony, Mr. Walentynowicz summarized a review of the cases of 535 Americans incarcerated in Mexican prisons as of July 1975, the investigations by U.S. personnel of their major complaints and allegations, the numerous formal protests by the U.S. Government to the Mexican authorities on alleged denials of access, physical abuse and coercion, confiscation of property, extortion, and prolonged trial detention, and the corrective actions taken in many such cases. He noted, however, that the Privacy Act of 1974 (88 Stat. 1896; 5 U.S.C. 552a note), "severely limits the release of information pertaining to any individual without the expressed written consent of the person involved" and that “this limitation has often notably delayed and hampered us in notifying next-of-kin of the incarceration of American citizens abroad." He stated further:

to make progress in protecting the rights of U.S. citizens in Mexico, we must repeatedly present Mexican authorities with the facts, demonstrate how they constitute a violation of Mexican and/or international law and norms, and insist that such violations be corrected and prevented in the future ....

We must address ourselves to ways and means of reconciling necessarily strong drug enforcement efforts with humane treatment, in light of the fact that legal systems, interpretations, and alternatives are basically national, not international in character, and that the United States cannot dictate court procedures, laws or sentences to sovereign foreign governments.

As regards the applicability of 22 U.S.C. 1732, Mr. Walentynowicz stated that it "refers to the act of arrest and its validity, rather than to conditions and treatment which take place during incarceration .... We call into question ... the applicability of Section 1732 as the primary medium by which our efforts should be applied, and request that this reservation be noted.”

Hearings, U.S. Citizens Imprisoned in Mexico, before the Subcommittee on International Political and Military Affairs, Committee on International Relations, House of Representatives, 94th Cong., 1st Sess., Part 1, Apr. 29 and 30, 1975, and Dept. of State File SCA/SCS. For guidance to applicable consular responsibilities, see 22 CFR Part 71; 7 Foreign Affairs Manual 350–354.2, 865, 870-873.5; sec. VI, Consular Duty Manual, Embassy Mexico City; U.S.-Mexico consular convention of Aug. 12, 1942 (57 Stat. 800, TS 985); Vienna Convention on Consular Relations of Apr. 24, 1963 (21 UST 77, TIAS 6820).

Monroe Leigh, Legal Adviser of the Dept. of State, in a memorandum of November 15, 1975, stated that the legislative history of 22 U.S.C. 1732, based on the Act of July 27, 1868, confirmed that the purpose of the legislation was to ensure that naturalized American citizens who return to their country of origin would be protected from unwarranted arrest to the same extent as native born Americans. He concluded that the statute relates to the act of confinement rather than to treatment after confinement. He pointed out that historically the President had relied on his constitutional authority when protecting American citizens abroad, but that 22 U.S.C. 1732 had been available as authority additional to the constitutional basis for executive action to protect American citizens.

Dept. of State File L/SCA.

Settlement of Estates

On September 22, 1975, Horace F. Shamwell, Jr., Deputy Assistant Legal Adviser for Management, responded to an inquiry from a law firm concerning application of the United States-Romania Consular Convention of 1972 (TIAS 7643; 24 UST 1317; entered into force July 6, 1973) to an estate pending settlement in Montana. Mr. Shamwell's letter stated, in part:

The U.S.-Romania Consular Convention of 1972 entered into force on July 6, 1973. As a treaty, it is the law of the land and is binding on Federal, State and local authorities, taking precedence over any previously existing laws and regulations which may conflict with its provisions.

Article 12 of the Convention sets forth the rights of consuls of the sending state with respect to the protection of the rights and interests of their nationals, whether these persons are the deceased individuals or persons who may have an interest in the estate of a deceased person, regardless of the latter's nationality. The wording of this Article is quite clear and requires no additional interpretation. This Article is self-executing and requires compliance with no conditions other than those specified. In this regard, there is no requirement to establish reciprocity between the sending state and any particular governmental unit of the receiving state, and the imposition of such a condition might very well constitute a violation of the receiving state's obligations under the treaty.

Dept. of State File No. P75 0157–1437.

[ocr errors]

Ministerial Functions

K. Scott Gudgeon, Acting Assistant Legal Adviser for European Affairs, in a letter dated April 4, 1975, to the Assistant Attorney General of Wisconsin, noted that the United States Government continued not to recognize the forcible incorporation of Lithuania into the Soviet Union and that the performance by U.S. consular officers in the Soviet Union of certain notarial functions with regard to legal documents originating in Lithuania did not constitute recognition of such forcible incorporation. Mr. Gudgeon's letter states in part:

The United States Government continues not to recognize the forcible incorporation of Lithuania into the U.S.S.R., and the Department of State does not regard Soviet consular officers or attorneys retained by them, by reason, respectively, of their office or such retention, as having any right to act on behalf of Lithuanian nationals. United States consular officers in the U.S.S.R. are authorized to perform notarial functions with regard to documents completed in Lithuania and attested to, certified or authenticated by Soviet authorities. This function by United States consular officers is considered to be a ministerial function and in the interest of justice as it makes possible the submission of formally complete documents executed abroad which may be relevant to actions pending before courts in the United States. The performance of such notarial functions does not constitute an act of recognition of the incorporation of Lithuania into the Soviet Union and would import no view, authoritative or otherwise, as to the probative value to be accorded to the documents concerned

Dept. of State File No. P75 0092-1235.

Consular Conventions


On May 29, 1975, a consular convention between the United States and Bulgaria (TIAS 8067; 26 UST 687) signed April 15, 1974, entered into force. It assures performance, on a reciprocal basis, of the customary wide variety of consular services, including issuance of passports and visas, notarial services, representation of nationals in estate matters and the provision of legal and related assistance to nationals in need. A significant aspect relates to the obligation of the receiving state to notify consulates of the sending state in the case of deprivation or limitation of personal freedom of a national of the sending state. Notification must be made within a maximum period of three days. The authorities of the receiving state are obligated to permit consular officers to visit a detained national within four days of the date of detention.

An accompanying agreed memorandum defines the terms "law" and zakonodatelstvo to include all national laws, orders, codes, regulations and other normative acts which have legal force; the American term also includes all relevant State and local laws, ordinances and regulations plus decisions and determinations of courts and other judicial or administrative agencies.

An exchange of letters, relating to consular protection for persons who might be regarded as possessing dual nationality, guarantees that the receiving state will grant consular officers the protective rights enumerated to persons who enter that country with a valid passport of the other nation and a valid visa or other document authorizing entry into the receiving state. The guarantee is extended regardless of whether the individual in question is also regarded as a national of the receiving state.

Consular Premises On July 31, 1975, Louis G. Fields, Jr., Assistant Legal Adviser for Special Functional Problems, sent a letter to the Philippine Ambassador in Washington responding to an inquiry concerning the degree of protection which the United States may take in dealing with demonstrations close to diplomatic or consular establishments. The inquiry involved a legal interpretation of the "Act for the Protection of Foreign Officials and Official Guests of the United States (P.L. 92–539; 86 Stat. 1072; approved October 24, 1972), as it related to a demonstration which had taken place near the Philippine consulate in San Francisco. Mr. Fields attached a letter of July 18, 1975, from Carl W. Belcher, Chief of the General Crimes Section, Criminal Division, Department of Justice, stating, in part:

Although there is no prohibition against a peaceful orderly demonstration within 100 feet of a consulate, intentional blocking of access thereto is a violation of 18 U.S.C. 112 in our view. Thus police authorities on the scene should not tolerate any such interference. If the demonstrators do not heed cautionary instructions as to free access or do otherwise evidence an intent to violate the cited statute, we would expect the police to require the demonstrators to shift their activity 100 feet away from the premises and, particularly if requested by Federal authorities, to

« ÎnapoiContinuați »