Foreigners' Rights when Traveling Abroad

What do Florence Cassez, Shane Bauer, and Josh Fattal all have in common?

They were all arrested while traveling or living in a country outside their country of origin.  Their stories are well-known and were the subject of many articles and debates on and off-line.

This blog post is not about their guilt or innocence, nor is it a commentary on the legal systems that they have had the misfortune to become very familiar with.

I'd like to focus instead on something that all of us who travel or reside abroad ought to know:  our rights if we are arrested and detained (or jailed) in a country outside of our home countries.

Yes, it does happen - more often then you might think.  Around 1000 Australians are arrested abroad every year with around 200 actually going to jail.  Mexico and the UK seem to be real trouble spots for Americans.  Ouest France reports around 2000 Frenchmen and women in foreign prisons, many of them in Tanger.

So, with that in mind, here are a few things you should be aware of:

Local Law Wins Every Time:  The most important thing to understand is that the laws of your country of citizenship do not apply in a foreign country.  Strangely enough some people still don't get this.  Laws (except for international law) are territorial and cannot be packed in your suitcase to be brought along in case of an emergency or a situation that does not appeal to you.  You are both expected to know the laws of your destination country and to obey them even if you don't agree with or like them.   Just for fun, have a look at the France Diplomatie website which has an entire page devoted to helping French tourists to understand some of the legal differences between the U.S. and France with an eye toward avoiding unfortunate incidents.

International Agreements:  You have some rights under international agreements.  If you have some time to kill, check out the Vienna Convention on Consular Relations (1963) and scroll down to Article 36 which, in a nutshell, says that you have 1. the right to contact your consulate without interference, 2. the right to have your consulate informed if you are detained and 3.  the right to have consular officials help you with legal representation and visit you in your place of detention.  Is that all?  Yes, that's about it.  Here is how how one jurisdiction in the U.S. (Los Angeles, California) applies the Convention.  Be aware that not all countries have signed on to this protocol.  This is something worth checking before you purchase that plane ticket.

Home Country Intervention:  In addition to being to able to communicate with a consular officer and getting help finding a local lawyer that speaks your language, what else can they do?

Well, they can protest and try to pressure the government concerned if they and you think that you are being treated in an inhumane or unfair fashion.  Sarkozy, for example, tried to intervene with the Mexican government on Florence Cassez's behalf.  The U.S. government did the same with Shane Bauer and John Fattal.  Neither government initially succeeded in getting its citizens released and to date only one of these stories has had a happy ending.

A quick look at the government sites I looked at were very clear that their authority, and their ability to help you, is limited in a foreign country.  Read the U.S. State Department's article on Arrest or Detention of an American Citizen Abroad.  Read and admire the Australian government's website which is very explicit: no free legal advice, for example, or getting you a Get Out of Jail Card.  France has this procedure for its citizens abroad.

I've said it before and it's worth repeating, "know before you go" or you just might find yourself seeing a part of another country about which you really would have preferred to remain ignorant.