Do Unto Others: The Importance of Better Compliance with Consular Notification Rights
21 Duke Journal Comparative and International Law 461 (2011)
41 Pages Posted: 2 Aug 2010 Last revised: 13 Jun 2012
Date Written: July 30, 2010
The right of a foreign national to contact his or her consulate upon arrest or detention in another country has been described as a fundamental and indispensible human right. It has also been part of U.S. law for decades. Yet U.S. authorities have repeatedly failed to provide foreign nationals and their consulates with notice as required by law. This failure is evidenced by the explosion in litigation of consular notification rights in recent years.
This article explores some of the most interesting legal questions that are being raised in the area of consular notification rights. Drawing on the experiences and perspectives of a member of the consular staff of Mexico, an immigration attorney and a law professor, the authors provide real life examples that illustrate why consular notification is so important and how consular officers can assist when a foreign national is arrested or detained in the United States. The article analyzes litigation strategies that have been pursued to remedy noncompliance and the success or failure of those strategies to date. It discusses some state actions that have been taken or are proposed to increase compliance with consular notification rights. And finally, the article suggests some additional actions that may be taken in the future to better secure these important human rights.
Keywords: consular notice, treaty implementation
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