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.
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Thank you. I really appreciate your visiting and your comment.
I just noticed, however, that the great link I had to the France Diplomatie website that talked about the differences between French and American law is broken. Nuts! If anyone can find it (or something like it) let me know and I'll fix it.
Interesting post. The "legal differences" link took me to a bad page.
Do you know what the rules are if a dual citizen is arrested in the other country of his dual citizenship? I think the answer is that the non-arresting country doesn't have to do anything.
We had this problem with the recent Lebanese war. Suddenly 50,000 Canadians living in Lebanon, the majority having dual citizenship, required evacuation. My feeling was that they were not Canada's problem, but our Prime Minster was more compassionate and rescued the duals in any case.
There was a case of extraordinary rendition, in which a Syrian Canadian was sent from the United States back to Syria (not Canada which is closer). The Syrians promptly put the man in prison and tortured him (which appears to be what the authorities were hoping for, both Canadian and US).
Thus, one benefit of not being a dual, is if I return to the states, the US authorities MUST treat me as a Canadian and no longer as an American. I see this as much better, because if they arrest me, the Canadian government can intervene in my behalf.
I think that is covered under the principle of "dominant nationality." When you are in a country of citizenship it has the right to treat you exclusively as one of its citizens and the other state, in principle, should not interfere.
Interestingly enough the new Charter of the Rights and Responsibilities of a French citizens mentions this. "En devenant Français, vous ne pourrez plus vous réclamer d'une autre nationalité sur le territoire
français." You can read a bit more about it here http://thefranco-americanflophouse.blogspot.com/2011/11/new-rules-for-acquiring-french.html
I think it would be very useful to post this at Isaac Brock. I am working through some issues regarding citizenship. I think if the concept of dominant nationality prevails, then FBAR cannot apply to dual citizens who are resident in the second country of nationality (not USA). The FBAR law states explicitly, not citizens, but those subject to the jurisdiction of the United States. If a dual national is resident in Canada, for example, then he or she is not "subject to the jurisdiction" of the United States but to Canada under the concept of dominant nationality. Thanks, Peter
Re the broken link, I think this is the new URL:
If you're looking for something specific that's missing from the new one, here's the Wayback Machine's snapshot of the old link on 18 March 2011:
Indeed it is. Thank you so much, Peter, for sending the new link. I've updated the post.
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