US Citizens and International Law
Americans living abroad are of course subject to the legal systems of their respective countries of residence. They are sometimes also subject to American law even while abroad – for example, necessity to file US tax returns while living abroad, or US restrictions on travel to some countries.
The US has numerous bilateral or multilateral agreements with other countries that affect Americans living abroad, such as tax treaties or social security agreements. (More information on these two subjects can be found in relevant sections of this website and on the websites of the IRS or the Social Security Administration.) In fact, the mere listing of treaties and other international agreements to which the US is party makes a book of almost 500 pages: Treaties in Force.*
* Note: Under US law, the distinction is made between a "treaty", which must have Senate confirmation, and all other forms of "agreement." See: law.duke.edu/ilrt/treaties_3.htm
Examples of international agreements which can impact Americans abroad are:
American Citizens Abroad (ACA) believes the United States should honor its treaty obligations under the Vienna Convention, thereby encouraging other nations to comply in cases of Americans incarcerated abroad.
As an American abroad, were some quirk of fate to cause you to be arrested, you would probably want the US consular representative to know of your whereabouts. This right is spelled out in Article 36 the Vienna Convention on Consular Relations, ratified by 173 countries. The Vienna Convention was signed by the United States on 24 April 1963, and was subsequently ratified, unanimously, by the US Senate.
Although a signatory to the Vienna Convention, the United States has a poor record in the area of notifying foreign consular officials when nationals from their countries are imprisoned in the US (see, for example, the Avena decision of the International Court of Justice). This may impact on the quality of representation accused foreign nationals obtain, particularly in criminal cases involving capital punishment.
Yet in Medellín v. Texas, 552 U.S. 491 (2008) the United States Supreme Court held that even if an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing." Also, the Court held that decisions of the International Court of Justice are not binding domestic law and that, without authority from the United States Congress or the Constitution, the President of the United States lacks the power to enforce international treaties or decisions of the International Court of Justice. (en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas)
As Patrick Kennedy, Undersecretary for Management in the State Department has stated:
To protect Americans in foreign custody, the Vienna Convention on Consular Relations – a binding U.S. treaty – mandates three simple rules: ask, notify, and allow access. Arresting authorities must first ask detained foreign nationals if they want their country’s consulate notified; if requested, must notify the consulate; and, must allow access if the consulate seeks to provide assistance. Thus, our ability to secure safe worldwide travel for the millions of Americans who live, work, study, and vacation abroad depends vitally on all countries granting mutual respect to the protective rules in the Vienna Convention.
What can you do?
Encourage your senators to support the following bill – it could help you some day:
The "Consular Notification Compliance Act" (S. 1194), introduced in the 112th Congress by Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, would provide Congressional implementation of the Vienna Convention. The bill has advanced through hearing in the Committee, but may languish there unless there is impetus to advance it to vote within the Senate.
In introducing the legislation, Senator Leahy said:
There are currently more than 100 foreign nationals on death row in the United States, most of whom were never told of their right to contact their consulate and their consulate was never notified of their arrest, trial, conviction, or sentence. This failure to comply with our treaty obligations undercuts our ability to protect Americans abroad and deeply damages our image as a country that abides by its promises and the rule of law. It would also be unacceptable to us if our citizens were treated in this manner.
This international Convention has 88 signatory countries, including the United States. Its declared purpose is primarily:
… to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.
Parents or legal guardians whose child(ren) may be, are being, or have been, taken to or retained in a country other than their habitual country of residence (often by a non-custodial parent) have a rich source of helpful information from the State Department at: travel.state.gov/abduction/abduction_580.html. If based abroad such parents can rely on help from American consular services of the nearest US embassy. This help is available if the child is abducted from or to the United States.
The International Child Abduction convention is aimed at guaranteeing that children will be retained in their country of legal residence.
But what if …
For Americans living abroad whose health and well-being are endangered by abusive domestic relationships in their country of legal residence, there may be very little that American consular services can do to help. To fill this void, the nonprofit nongovernmental organization Americans Overseas Domestic Violence Crisis Center (AODVC) was founded by a survivor of domestic violence abroad. It provides free and confidential advice and has a worldwide outreach, with a broad network of local contacts for legal and other advice. This organization provides aid in cases where US consular officials cannot legally intervene. AODVC maintains excellent relations with US consular affairs officials, and has obtained grant money from US Department of Justice.
Hague Adoption Convention on the Protection of Children and Co-operation in Respect of Inter- Country Adoption
The Hague Adoption Convention is an international agreement to safeguard intercountry adoptions. Concluded on May 29, 1993 in The Hague, the Netherlands, the Convention establishes international standards of practices for intercountry adoptions. The United States signed the Convention in 1994, and it entered into force for the United States in April 2008. The Convention has 89 signatory countries.
It ensures that adoption service providers have been accredited on a Federal level; that these agencies itemize and disclose in writing the fees and estimated expenses ahead of time; provides every child adopted from a Convention country receives a Hague Adoption Certificate or a Hague Custody Declaration. The certificate is issued by a US consular officer after determining that the adoption (or grant of custody) has met the requirements of the Convention and the Intercountry Adoption Act.
For fuller details on international adoptions, as well as a comparison of differences between Convention and non-Convention adoption requirements, see the relevant State Department webpages.
Consular Notification in Case of Arrest
American citizens living overseas who are subject to arrest for any reason should expect that the authorities in the country of residence will immediately contact US consular officials in order to ensure decent, fair and equitable treatment under the laws of the foreign country. Failure on the part of US authorities to demonstrate observance of the "Vienna Convention on Consular Relations" subjects Americans living or traveling abroad to an unacceptable and unnecessary level of legal jeopardy.
ACA has written a support letter to Congresswoman Kay Granger (member of the Americans Abroad Caucus) and Congressman Robert Goodlatte (Chair of House Judiciary Committee) to request that the consular notification compliance provision (§ 7083) be included in the final “Foreign Ops” portion of the Omnibus Appropriations Bill. Read the letter here...
Updated September 2017