7 FAM 020
AUTHORITIES
(CT:CON-862; 12-07-2018)
(Office of Origin: CA/OCS)
7 FAM 021 SUMMARY
(CT:CON-106; 06-06-2005)
Consular authority to provide protection and services for
U.S. citizens and nationals abroad is derived from various treaties, law,
regulations, Executive Orders and inter-agency agreements. Authority for
specific consular services addressed in other chapters of 7 FAM is detailed in
those chapters.
7 FAM 022 TREATY AUTHORITY FOR CONSULAR
PROTECTION
(CT:CON-445; 02-22-2013)
a. When you are newly assigned to a country as a
consular officer, you should learn whether the country is a y party to the
multilateral Vienna Convention on Consular Relations of 1963 (VCCR). Also
determine whether a bilateral consular convention is in force between the host
country and the United States. (See Treaties in Force available on the
Department of State Internet page). (See the Treaties feature on the CA/OCS
Intranet page and the CA Internet Bilateral Consular Conventions feature).
CA/OCS/L can assist posts in obtaining copies of treaties not yet available
on-line. Contact us at Ask-OCS-L@state.gov.
b. Signatory v. Party:
Signature is an expression of interest and general agreement with the text of a
treaty, but does not convey a States consent to be bound by it. A State which
has signed a treaty which is subject to ratification is not obliged to ratify.
(Art.12 (2) (b), Vienna Convention on the Law of Treaties): A party is a State
which has consented to be bound by the treaty and for which the treaty is in
force. (See the Treaties feature on the CA/OCS Intranet page.)
NOTE: Just because a
country is a signatory to a treaty does not necessarily mean that the treaty is
in force for that country.
c. Basic consular functions:
Article 5 of the VCCR enumerates the consular functions regarding protection of
nationals and other services, including:
(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 defense of their rights and interests.
d. Consular notification and access:
Because of its near universal applicability, Article 36(1)(b) of the VCCR
establishes the baseline for consular notification and access. This article
provides that if a national of the sending State is arrested or committed to
prison or to custody pending trial or is detained in any other manner, that
individual must be informed of the right to consular notification and access.
If the national requests consular notification and access, the host country
must inform consular officials of the home country without delay.
e. Without delay: The
Department has interpreted the term "without delay" in the VCCR as
meaning, generally, that there should be no deliberate delay, and notification
should occur as soon as reasonably possible under the circumstances. The
Department believes that notification within 24 hours would, prima facia, be
considered to be "without delay" and that notification within 72
hours would, in most circumstances, be considered to be "without
delay." The Department similarly considers notification within 24-72
hours to be timely under bilateral consular treaties unless the language of the
bilateral agreement specifies a different time frame. Under the VCCR, the form
of notification is not specified and may take any form reasonably calculated to
relay the relevant information to the consular officer so that the officer may
take necessary steps to provide consular protective services, including
requesting and gaining consular access. Thus, notification may be in writing
(by diplomatic note, letter, or any other writing) or orally (in person or, for
example, a message left on an answering machine). Faxing or emailing the
notification to the consular officer can greatly expedite receipt of
notification and should be encouraged. The Department believes that to be
useful, the notification should, at a minimum, provide the name and place of
detention of the foreign national, and instructions for obtaining additional
information should the consular officer wish to do so. Posts may also
encourage host governments to provide other details known to the host
government, such as date and place of birth, passport information, and any
other information which could be helpful to the consular officer such as the
charges or allegations against the detainee. Only a few of our bilateral
agreements address the nature of the information to be provided. Posts should
assess whether an impermissible delay in notification has occurred whenever
post becomes aware that an American citizen has been detained. If a delay has
occurred, post must report that delay to the Department and seek guidance
before protesting the matter.
f. Minors, deaths, disasters:
Article 37 of the VCCR, Information in Cases of Deaths, Guardianship or
Trusteeship, Wrecks and Air Accidents, provides that If the relevant
information is available to the competent authorities of the receiving State,
such authorities shall have the duty:
(a) in the case of the death of a national of the
sending State, to inform without delay the consular post in whose district the
death occurred
(b) to inform the competent consular post without
delay of any case where the appointment of a guardian or trustee appears to be
in the interests of a minor or other person lacking full capacity who is a
national of the sending State. The giving of this information shall, however,
be without prejudice to the operation of the laws and regulations of the
receiving State concerning such appointments
(c) if a vessel, having the nationality of the
sending State, is wrecked or runs aground in the territorial sea or internal
waters of the receiving State, or if an aircraft registered in the sending
State suffers an accident on the territory of the receiving State, to inform
without delay the consular post nearest to the scene of the occurrence
g. Bilateral consular conventions:
Numerous bilateral consular conventions and older friendship, commerce and
navigation agreements are also in force. (See Treaties in Force on the
Department of State Internet home page to confirm whether a bilateral consular
convention or other agreement exists). (See the CA/OCS Intranet page treaties
feature for copies of most bilateral consular conventions, or contact CA/OCS/L at
ASK-OCS-L@state.gov.)
7 FAM 023 U.S. Laws, Regulations and
Executive Orders
(CT:CON-833; 08-23-2018)
On April 14, 1792, the 2nd Congress enacted An Act
Concerning Consuls and Vice-Consuls, Sess. I, Ch. 24. Current U.S. laws
related to protection of citizens abroad include:
22 U.S.C. 1731 Protection to Naturalized Citizens Abroad
22 U.S.C. 2671(b)(2)(A) Evacuations, Citizen Liaison
Networks
22 CFR 71.1 Protection of Americans Abroad
22 CFR 71.6 Services for Distressed Americans
Executive Order 13074, signed February 9, 1998, 63 Federal
Register 7277, Coordination between Departments of State and Defense for
protection and evacuation of U.S. citizens in threatened areas overseas
Executive Order 12656, signed November 18, 1988, 53 Federal
Register 47491, Assignment of Emergency Preparedness Responsibilities, provides
that the Department of State is responsible for the protection of U.S.
citizens abroad, and for safeguarding their property. (See 7 FAM 1800 Crisis
Management and 7 FAM 600 Property.)
7 FAM 024 Delegations of Authority
(CT:CON-822; 07-16-2018)
Presidential delegations of authority and Secretary of
State delegations of authority are available on the U.S. Department of State
Directives Management Intranet page. Delegations of authority related to
American Citizens Services work include:
(1) DA-261 - Delegation by the Secretary of State to
the Assistant Secretary for Consular Affairs - The 1993 Hague Convention on
Protection of Children and Cooperation in Respect of Intercountry Adoption Act
of 2000 (From S to CA);
(2) DA-173 - Delegation to the Director of the Office
of Citizens Consular Services - Hague Convention on the Civil Aspects of
International Child Abduction and the International Child Abduction Remedies
Act. (From CA to CA/OCS);
(3) DA-172 - Delegation of Authority with Respect to
Performance of the Functions of Central Authority under the Hague Convention on
the Civil Aspects of International Child Abduction. (From S to CA); and
(4) Delegation of Authority With Regard to Declaration
of Foreign Countries to Be Reciprocating Countries Under Section 371 of Public
Law 104-193 and Conclusion of Related Executive Agreements (Child Support
Enforcement) (From S to L and CA in coordination with each other September 5,
1997).
7 FAM 025 NonBinding U.N. Resolutions
AND OTHER INSTRUMENTS
(CT:CON-106; 06-06-2005)
Posts should be familiar with various nonbinding United
Nations Resolutions and other instruments related to the treatment of persons,
including, but not limited to, prisoners, the mentally ill, mentally retarded,
minors, and victims of crime.
7 FAM 026 Inter-Agency Agreements
(CT:CON-822; 07-16-2018)
Several inter-agency agreements related to consular
protection functions are:
(1) Memorandum of Agreement between the Departments of
State and Defense on the Protection and Evacuation of U.S. Citizens and
Nationals and Designated Other Persons from Threatened Areas Overseas, signed
on July 2, 1998 by then Under Secretary of State Thomas R. Pickering and on
July 14, 1998 by then Under Secretary of Defense Walter B. Slocombe;
(2) Memorandum of Understanding between the Department
of State and the National Transportation Safety Board (NTSB) concerning
assistance to families following transportation disasters signed June 2, 1997;
and
(3) Memorandum of Understanding between the Department
of State, Bureau of Consular Affairs, and the U.S. Department of Justice,
Office for Victims of Crime and the Federal Bureau of Investigation concerning
responding to victims of international terrorism signed March 19, 2003.
7 FAM 027 CONSULAR FUNCTIONS AND LEGAL
AUTHORITIES
(CT:CON-862; 12-07-2018)
The following chart summarizes the legal authorities for
various consular functions and who may perform them.
|
Function
|
Authority
|
Who May Perform
|
|
Consular Protection
|
22 CFR 71.1
22 CFR 71.6
Article 5(a), (e), (h), and (i), VCCR
|
Foreign Service Officers
NOTE: Article 3, para 2 of the
Vienna Convention on Diplomatic Relations (VCDR) provides Nothing in the
present Convention shall be construed as preventing the performance of
consular functions by a diplomatic mission.
Consular Associates (see 7 FAH-1
H-343.4-3).
|
|
Issuance of Passports to U.S. Nationals
(8 FAM 101)
|
Article 5(d), VCCR
22 U.S.C. 211a et seq.
22 CFR 50.1(g)
22 CFR 51.1(h)
22 CFR 51.5
22 CFR 51.22(a)(4)
|
Diplomatic or Consular Officer;
U.S. citizen State Department employee designated by the
Assistant Secretary for Consular Affairs, including Professional Adjudication
Specialists.
NOTE: Passport applications may be
executed before a Consular Agent or Notarial Officer, but Consular Agents and
Notarial Officers may not adjudicate passport applications or issue
passports.
Consular Associates may accept and pre-screen applications
for passports, but may not adjudicate entitlement to passport/citizenship.
(See 7
FAH-1 H-343.4-3 b.)
|
|
Consular Report of Birth Abroad of a Citizen of the United
States
(8 FAM 702)
|
22 U.S.C. 2705
22 CFR 50.1(g)
22 CFR 50.2
22 CFR 50.5
22 CFR 50.6
22 CFR 50.7
|
Consular officer;
U.S. citizen State Department employees designated by the
Deputy Assistant Secretary for Overseas Citizens Services, including
Professional Adjudication Specialists, may provisionally approve a CRBA,
but final approval and issuance may only be performed by a consular officer
(see 22 CFR 50.2).
Passport agents in time of war or national emergency for
children born in military facilities.
NOTE: Consular Associates may
accept and pre-screen applications for Consular Report of Birth Abroad of a
Citizen of the United States but may not adjudicate entitlement to
passport/citizenship. (See 7 FAH-1
H-343.4-3 b.)
|
|
Loss of Citizenship
(7 FAM 1200)
|
8 U.S.C. 1481 (INA 349)
22 CFR 50.40
22 CFR 50.50
22 CFR 50.51
|
Only a diplomatic or consular officer may accept an oath
of renunciation of citizenship; relinquishment of citizenship or prepare a
Certificate of Loss of Nationality (INA 358). However, a diplomatic or
consular officer abroad may not approve a finding of loss of nationality;
Only a Division Chief or formally designated Acting Chief
in CA/OCS/ACS may approve a Certificate of Loss of Nationality (see 7 FAM 1213 b);
Only an attorney in CA/OCS/L may conduct an administrative
review of a previous finding of loss of nationality, except for grounds for
loss of nationality which have been found to be unconstitutional by the U.S.
Supreme Court (see 7 FAM 1233).
|
|
Issuance of Visas
|
Article 5(d) VCCR
8 U.S.C. 1101 et seq.
22 CFR part 40 (Visas Generally)
22 CFR part 41 (Nonimmigrant Visas)
22 CFR parts 42 through 45 (Immigrant Visas)
|
(See 9 FAM).
|
|
Visas and International Child Abduction
(9 FAM 40.103)
|
INA 212(a)(10)(C)(ii)
|
In international child abduction cases, authority to
determine that an alien intentionally assisted a child abductor and to
designate alien family members and agents of child abductors, thereby, making
such aliens ineligible for visas/inadmissible.
|
|
Notarials; Depositions; Letters Rogatory
(7 FAM 800, 7 FAM 900)
|
Article 5(f) and (j), VCCR
|
Consular Officer;
Secretary of Embassy or Legation;
U.S. Citizen State Department Employees designated by the
OCS DAS as Notarizing Officer (functions not to include performing
authentications, notarizing patent applications, or taking testimony in
criminal cases)
|
|
Extradition Documents
(7 FAM 1633)
|
18 U.S.C. 3190
22 CFR 92.40
|
U.S. Ambassador;
Charg dAffaires;
Consul General (Principal Consular Officer)
|
|
Reports of Death
(7 FAM 200)
|
22 U.S.C. 2715b
22 U.S.C. 2715(b)
22 CFR 72.1 and 22
CFR 72.5
|
Consular Officer;
Designated U.S. Citizen State Department employees,
including Professional Adjudication Specialists and Consular Associates
|
|
Notification of Death
(7 FAM 200)
|
22 U.S.C. 2715b
22 U.S.C. 2715(b)
22 U.S.C. 2715a
22 U.S.C. 4196
22 CFR 72.1 and 22
CFR 72.4
|
Consular or Diplomatic Officer;
Designated U.S. Citizen State Department employees
|
|
Estates
(7 FAM 290)
|
Article 5(g), VCCR
22 U.S.C. 2715c
22 U.S.C. 2715(b)
22 U.S.C. 4196
22 U.S.C. 4197
22 CFR part 72 and 72.8 et seq.
|
Consular or Diplomatic Officer
Designated U.S. Citizen State Department employees
NOTE: Article 17 of the VCCR
provides for the performance of diplomatic acts by consular officers under
certain circumstances and similarly diplomatic missions may perform consular
functions. VCCR Article 3 provides that Consular functions are exercised by
consular posts. They are also exercised by diplomatic missions in accordance
with the provisions of the present convention. Article 3, para 2 of the
VCDR provides Nothing in the present Convention shall be construed as
preventing the performance of consular functions by a diplomatic mission.
|
7 FAM 028 and 029 unassigned