Foreign Consulate Operations in the United States
May 2008
The ubiquitous activities of Mexican consular officials throughout the United States urging state and local governments to recognize the Mexican consular ID card (matricula consular) for local purposes, and other advocacy on behalf of Mexicans illegally residing in the United States has raised public questions about the role of foreign consuls. It is clear that there are limits to what foreign government officials may do abroad despite their immunity from the applications of our laws in most cases.
VIENNA CONVENTION ON CONSULAR RELATIONS
Below are provisions from the Vienna Convention on Consular Relations, which was concluded in 1963 and which the United States ratified. The Convention governs the responsibilities, immunities and limitations on the operations of consular officers.
First, the responsibilities of consular officers are extensively outlined in Article 5 on “Consular functions.”
The key provisions are the following:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence [sic] of their rights and interests;
(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.
Second, the role of consular officials in communicating with U.S. authorities in carrying out those responsibilities is described in Article 38:
In the exercise of their functions, consular officers may address:
(a) the competent local authorities of their consular district;
(b) the competent central authorities of the receiving State if and to the extent that this is allowed by the laws, regulations and usages of the receiving State or by the relevant international agreements.
Finally, the above provisions do not represent a carte blanche to disregard local laws or practice. This is spelled out in Article 55 on “Respect for the laws and regulations of the receiving State.”
Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State.
ENFORCING THE LIMITATION ON INTERFERENCE IN INTERNAL AFFAIRS
The provisions of the Convention make it clear that foreign consuls are expected to be advocates for nationals of their country. They are tasked with assuring that their nationals are accorded all of the protections of law that are accorded to nationals of the host country. That responsibility is not restricted based upon whether or not their nationals are legal residents in the host country.
The convention also makes it clear that there are limits on those activities. If the activities of a consular official are unacceptable to the host government, that individual may be declared persona non gratis (PNG in State Department shorthand) and required to leave the country. That action would normally be undertaken by the U.S. Secretary of State (or delegated official) and communicated to the Ambassador of the foreign country and/or to the foreign government through the U.S. Embassy in the foreign country. That action is very rare in situations where the foreign government is regarded as a friendly country.
Short of declaring a foreign official who is interfering in internal affairs PNG, the more common recourse is to ask the foreign government to instruct a misbehaving official of that government to cease whatever inappropriate activity has caused the concern. A communication of that nature may be conveyed in various ways depending on the seriousness of the offense.
A first level of concern might be expressed at the working level in the State Department (the Mexican Desk in the case of Mexico) to a working level official in the Embassy (perhaps the Consul General or Deputy Chief of Mission. If the issue were more serious, it might escalate to the Secretary (or Deputy Secretary) of State calling in the Ambassador to register a complaint. In theory the issue could even escalate to the White House, but that too is unlikely in the case of a friendly state.
COMMUNICATING CONCERNS OVER CONSULAR ACTIVITIES TO WASHINGTON
The State Department is unlikely to be aware of inappropriate activities of consular officials unless they result in unfavorable publicity or generate complaints. The freedoms that we observe in our country may encourage foreign consular officials to believe that they have more liberties for advocating the interests of their nationals than would be accepted in another country such as Mexico.
If U.S. officials or citizens have reason to believe that a foreign consular official is acting in violation of Article 55 by interfering in domestic affairs, they should communicate those concerns to the State Department and/or the foreign embassy in Washington, D.C. At the State Department, the Protocol office and/or the appropriate geographical office (such as the Mexican Desk) would both have responsibility to respond to those charges. As with other issues, members of the public may also find their elected representatives in Congress interested in and prepared to take action on the concerns of their constituents.