Protection of American Citizens Abroad

Burton F. Beers

In December 1995 Peruvian police arrested and jailed twenty-one members of a terrorist group, the Tupac Amaru Revolutionary Movement (MRTA). Among those jailed was Lori Berenson, an American woman, then twenty-seven years old, accused of having conspired with leaders of the MRTA to seize and hold members of Peru's Congress as hostages who would be exchanged for imprisoned members of the MRTA. Beren son and the Peruvians arrested with her were promptly tried in secret sessions of a military court, one of several tribunals established outside the civil court system to expedite the trials of prisoners swept up in police raids. The judges—military officers untrained in law—excelled at conducting swift trials, and almost everyone coming before the courts went to jail. In January 1996 the court found Berenson guilty and sentenced her to life in prison.

In August 2000 the highest military tribunal threw out the 1996 verdict, finding that the prosecution had failed to establish that Berenson had been a leader of the terrorists as they shaped their plot. The evidence at best demonstrated only a close association between the American and leaders of the MRTA. The prosecution ordered a second trial, on the new charge of "collaboration with terrorists," a crime carrying a maximum twenty-year sentence. The case was transferred to a civil court where the sessions were open and transmitted to the public in live telecasts. In June 2001 Berenson was convicted for the second time and given the maximum penalty, reduced by the five years she had already served. Her release was scheduled for 2015. As of the summer of 2001, the defense has filed an appeal with Peru's Supreme Court, and if that fails, Berenson's parents say that they will seek a hearing before one or more international bodies.

At this point, even as unfinished business, the Berenson case is worth examining as an introduction to one of the most serious challenges that the United States faces in its efforts to protect American citizens abroad. In some respects the case is much like those of other Americans imprisoned abroad. Berenson, like other Americans on foreign soil, is subject to overlapping jurisdictions of two nations. The United States has defended her because she is one of its citizens, but she is also subject to the laws of Peru. Under international law, Peruvian authorities may arrest her, put her on trial, and imprison her for any violation of law. Thus far the circumstances of the case seem much like those of other Americans imprisoned abroad but, unlike others, Berenson has suffered the misfortune of becoming involved in international politics. This latter entanglement has made a solution elusive. The continuing disagreement has been deeply disturbing for the Berenson family, and it has imposed strains on American-Peruvian relations.

THE PROSECUTION'S CASE

The explanation for the impasse can be found partly in an ongoing disagreement between the United States and Peru over whether or not Berenson was accorded justice in either of her trials. The Department of State had criticized Peru's courts in each annual Country Human Rights Report in the 1990s. It noted in 1999, for example, that "Proceedings in the military courts—and those for terrorism in civilian courts—do not meet internationally accepted standards for openness, fairness, and due process." Indeed, reports of the initial trials, which Peru has not refuted, portray a panel of judges, hooded to conceal their identity; prosecutors who were allowed virtually unlimited opportunities to present their case; and a defense that had few opportunities to speak. After the trial, Berenson reported that she had been allowed to spend very little time with her attorney to prepare her defense.

Also, reports that are unconfirmed but not refuted indicate that the prosecution's cases in both trials were very similar. Berenson was portrayed as a key figure drawing plans to invade the Congress and kidnap its members. She was not, as she claimed, a freelance journalist writing about impoverished women. Rather, she was a professional revolutionary who had come to Peru after an agent of the MRTA had discussed with her how she might aid his organization and had paid in advance for her assistance. In Lima, the agent had helped her rent a large house in which a cadre of terrorists took over the top floor. Here she formulated plans while the terrorists built an arsenal of guns, ammunition, and explosives. She had also used her credentials as a journalist to take the wife of a terrorist leader, who posed as her photographer, to Congress, where the two gathered information on the layout of the building and identified the seats occupied by every member of Congress. To corroborate these latter activities, police displayed a chart filled with this information and produced evidence that presumably proved the handwriting was the defendant's. Finally, Berenson was said to have purchased a computer and other electronic equipment for the MRTA.

BERENSON'S DEFENSE

In the second trial, the defense was afforded more opportunities to plan and present its rebuttal to these allegations. Berenson spoke frequently in fluent Spanish. American reporters noted her cool self-possession and were struck by her quick, articulate responses to questions. Peruvian prosecutors, however, described her as an unrepentant, calculating, and dangerous terrorist.

Berenson described her political views as "slightly to the left" and affirmed her deep sympathy for Peru's impoverished people. Peru, she said, must undergo a revolution before the status of the poor could be improved. She said repeatedly that the revolution she envisioned would not—indeed, could not—emerge from terrorism. It followed, therefore, that she was not a terrorist and had no sympathy for those employing terrorism. When asked how these views squared with her association with the MRTA, Berenson refused to condemn the organization. She knew its members only as people who were working peacefully to bring about the kind of revolution that she had in mind.

The defense denied any deal with the MRTA. Berenson had indeed met the man whom the prosecution claimed was an agent of the organization, but she knew nothing of his alleged links to terrorists and she had not taken any payments to become their leader. Moreover, she was completely unaware of any links between the MRTA and tenants in her house or her photographer. The men on the top floor of her house had used assumed names and concealed their store of arms and explosives. She had hired the photographer solely because she was skilled with a camera.

Berenson, the defense continued, was a journalist who had been drawn to Peru by the country's rich history as well as the plight of its poor. Prior to her arrest, she knew nothing of any plans to seize members of Congress, and she had not knowingly provided her acquaintances with any assistance that might serve this purpose. Finally, the defense charged the prosecution with using tainted evidence to make its case. A man convicted of terrorism had served as the government's witness, testifying that Berenson had been paid to come to Peru to assist the MRTA. Other potentially damaging evidence, such as the detailed drawing of the Congress building, had been forged. In summation, the defense dismissed the government's case as flimsy and irrelevant. The government had not brought charges against Berenson because it had uncovered incriminating evidence of terrorist activity. She was on trial as a symbol of the government's determination to wipe out terrorism.

AMERICAN PRESSURE: OFFICIAL AND UNOFFICIAL

Americans who are arrested in almost any foreign country should expect that their host government will promptly notify the United States and that officials—usually from the American consulate—will be present as observers at their trials. Such steps have become standard procedures, the particulars of which have usually been defined in bilateral treaties.

Peru evidently notified the United States when Berenson was arrested, but since her initial trial was secret, an American official may not have been present. In any event, the Department of State was not surprised by her conviction and sentencing on 11 January 1996. On that day the State Department issued a sharply worded note to the Peruvian government. The United States, the note said, deeply regretted that "Ms. Berenson was not tried in an open civilian court with full rights of legal defense, in accordance with international juridical norms." The note went on: "The United States remains concerned that Ms. Berenson receive due process…. We call upon the Peruvian Government to take the necessary steps in the appeals process to accord Ms. Berenson an open judicial proceeding in a civilian court."

When President Alberto Fujimori visited the White House in May 1996, demonstrators outside chanted, "Fujimori, free Lori." Inside, President Bill Clinton urged that Peru grant Berenson a fair trial in a civilian court. In August, Representative Bill Richardson, a Democrat from New Mexico and the Clinton administration's informal diplomatic troubleshooter, went to Peru. He and Fujimori discussed several possible solutions, including the exchange of Berenson for a Peruvian jailed in the United States.

Meanwhile, the congresswoman representing the Berenson family's district was collecting letters in both the House and the Senate calling for the young woman's release. Former President Jimmy Carter joined the cause. Human rights groups on a number of college campuses sent letters to the World Bank asking that body to block loans to Peru, and to American corporations urging them not to invest in that country. Operating out of their apartment in New York City, Berenson's parents set up a web site encouraging such protests and drawing media attention to their daughter's imprisonment. By the autumn of 1996, an unidentified Peruvian official described the case as "a stone under everybody's foot." The government wanted to rid itself of this source of tension with the United States, but officials also had to satisfy a public that believed Berenson was guilty.

THE BERENSON CASE IN PERUVIAN POLITICS

There was considerable substance to Berenson's allegation, made during her second trial in 2001, that the Peruvian government had profited politically from her conviction and imprisonment. In the months following her first trial, the Fujimori administration spoke repeatedly of its success in thwarting the MRTA plot against the Congress, and it seldom missed an opportunity to boast of its courage in jailing the terrorists' "American leader." The case touched deep-seated public sensitivities. Almost everyone had felt the deep-seated economic problems of the 1980s and the compounding of them by the emergence of left-wing guerrilla groups, especially the Sendero Luminoso (Shining Path) and MRTA, both of which employed terror. In ten years, guerrilla attacks and government counterattacks took some thirty thousand lives.

Fujimori, a controversial figure at the outset of his presidency in 1990, gained popularity when his administration began to bring inflation under control and the government launched a determined effort to wipe out terrorism. His initial triumph against terrorism came in 1992, when police seized the leaders of the Shining Path and military courts sentenced them to life in prison. Late in 1996, the MRTA handed Fujimori a means for countering the increasing American pressures to grant Berenson a new trial. In December, armed members of the MRTA stormed the Japanese ambassador's residence in Lima during a party and took hundreds of hostages. In return for their release the MRTA demanded release of imprisoned members of their group. By April 1997 only seventy-two hostages remained. Government troops then attacked, killing all of the guerrillas and freeing all but one of the hostages.

If Berenson had any Peruvian sympathizers, they were gone by the time the hostage episode was over. As Berenson's second trial approached in 2001, American reporters heard Peruvians repeatedly condemn her as a "gringa terrorist," deserving harsh punishment. The MRTA's operation against the Japanese embassy echoed the plan that Berenson had allegedly helped to draft against the Peruvian Congress. Moreover, the guerilla leading the charge on the embassy was Nestor Cerpa Cartolini, the man the Peruvian prosecutors claimed had asked Berenson to establish a safe house in Lima.

Despite Department of State pressure after April 1997 for a new trial for Berenson in a civil court, Peru would not back away from the life sentence handed down by its military court and Berenson's incarceration in a bleak, unheated prison high in the Andes.

THE ROAD TO A NEW TRIAL

The United States may not have had any advance notice of Peru's decision in August 2000 to concede to demands for a new trial in a civil court, yet the State Department was certainly aware that the Fujimori government had become vulnerable to American pressure. Fujimori's political fortunes had plunged at home, and he had come under sharp criticism in the U.S. Congress. In the Senate, bipartisan support had emerged for linking foreign aid payments to Peru to "substantial progress" toward holding fair elections and respecting human rights, free speech, and the rule of law, as had a threat to cut by half the $125 million allocated to Peru in foreign aid.

Fujimori could not offer much resistance. He had come under fire at home for forcing revision of the constitution so that he could seek an unprecedented third term as president. Then his opposition found two serious charges to bring against him: widespread fraud in the balloting for president and a key aide's corruption. Given these circumstances, Peru's judicial system did what it could to placate the United States. The country's supreme military tribunal, presumably the same body that had earlier described Berenson as a "dangerous leader" of the MRTA, cleared the way for a new trial by announcing that she had not been proven guilty of treason.

However, Fujimori quickly found that these and other steps were not enough to save him. He fled to his parents' home country, Japan, from which he sent word of his resignation to Lima. An interim president took office, and a new presidential election in the spring of 2001 brought Alejandro Toledo, the most prominent of Fujimori's opponents, to office in midsummer. Shortly thereafter Berenson's parents appealed for a pardon for their daughter from president-elect Toledo, but he turned down the request. He explained to reporters that presidential intervention would be a poor way of initiating his administration's efforts to build an independent judiciary. The trial had been open, and he intended to respect the independence of the courts. Toledo added that he had visited with Berenson's family in New York City during the latter part of June but refused to reveal the substance of their conversation.

State Department officials in Washington told reporters soon after the second trial that the embassy in Lima had reviewed with Berenson options she might pursue. The department thought that a request for clemency or a pardon offered the best chance, especially if she first requested—as she was entitled to do under a United States–Peruvian treaty—transfer to a prison in the United States. Berenson had rejected each of these possibilities. Her position appears to have been that since she was innocent of the charges against her, she refused to request a pardon for something she had not done. Moreover, she refused to ask for any special consideration. To do so would separate her from people who had been unjustly arrested and convicted with her.

THE BERENSON CASE AND BROADER AMERICAN CONCERNS

The Berenson family's web site regularly posted material that called attention to the disparity between the Department of State's annual reports on Peru's violations of human rights and its reliance on quiet diplomacy in dealing with their daughter's plight. Supporters were asked to write letters to the president or secretary of state that cited 22 U.S. Code 1732, which directs the president to take all necessary steps—short of going to war—to secure the release of an incarcerated American citizen, "if it [the incarceration] appears to be wrongful."

About half of the members of the House of Representatives signed a letter, addressed to President Clinton, in April 2000 (three months before Peru agreed to a second trial in civil court) citing this statute. The letter advised, "A failure to intervene on Ms. Berenson's behalf would send the message that the United States will not act when its citizens are wrongfully imprisoned in foreign countries." Those signing the letter did not specify what they meant by "intervene."

LIMITS OF POWER

It had been difficult to find solid grounds for requesting that Berenson be given special treatment because she has steadfastly denied wanting any favors and is determined to stand with the Peruvians who had been arrested with her. In addition, the United States has been peculiarly handicapped in requesting special treatment for a citizen found guilty of crimes growing out of her association with the MRTA. The United States had welcomed Peru's efforts to wipe out terrorism, and the Clinton administration had joined Peru in designating the MRTA as a terrorist organization.

LEGAL FOUNDATIONS

The overlapping jurisdiction of the United States and Peru in the Berenson case is a fundamental characteristic of modern international relations. In part it is the product of a legal principle related to the concept of a nation's sovereignty. As nations took shape, individuals and property (today that means—among other things—companies or corporations, ships, and aircraft) came to be identified for legal purposes with some sovereign, and this identification followed them wherever they went. This principle was then joined with an affirmation that the honor of a nation was injured when one of its citizens abroad or his or her property was subjected to an injustice. These two principles were interpreted to mean that each state would decide for itself when its citizens abroad had suffered mistreatment, how seriously the offenses had damaged the national honor, and what had to be done in order to make amends.

But these asserted rights had to be accommodated to the claim that nations exercised jurisdiction over everyone and everything within their boundaries. In effect, the individual or property abroad was placed in a legal relationship with two governments: one that claimed the individual as a citizen and one that insisted on the individual's compliance with its laws.

The awkwardness (or potential for trouble) of these overlapping claims was scarcely noted in the formative years of nation-states. Even in the relatively limited confines of the place of their birth (western Europe), nations tended to be isolated. Few people crossed their sovereign's borders. That being so, the father of international law, Hugo Grotius, the seventeenth-century statesman and jurist, made no explicit reference to how governments should ensure the protection of nationals traveling or residing abroad. Before the end of the eighteenth century, however, the Western world's commercial and industrial revolutions were opening a new era in international intercourse. By 1758, the year in which Emerich von Vattel's classic The Law of Nations was published, the treatment—or mistreatment—of foreign nationals had become a problem. From that point on, governmental agencies and law aimed at their protection developed rapidly.

THE PRINCIPLES OF PROTECTION

Early law and practices for protecting nationals abroad reflect the fact that the first nation-states were few in number and shared in some degree heritages derived from civilizations rooted in Judeo-Christian and Greco-Roman traditions—and thus some commonalties in law. This encouraged European nations—and the United States after independence—to agree that their nationals should submit to the full operation of local law whenever their nationals traveled in one another's domains. Generally speaking, these nations acted on the presumption that their nationals would be accorded justice. However, if their nationals suffered wrongs and found no relief in local remedies, these nations reserved rights to intervene on their nationals' behalf.

However, the system was scarcely trouble-free. The United States, for example, quarreled with European states when the latter imprisoned immigrants who had returned from America to visit family. The returned immigrants were often charged with having failed to meet their military obligations. At issue in such cases was whether the immigrants, while in the United States, had established indisputable claims to American citizenship and whether the United States could legitimately spring to their defense.

Sometimes disagreements generated serious tensions. In 1891, for example, American sailors on shore leave in one of the seamier sections of Valparaiso, Chile, were set upon by a mob that killed two of the sailors and injured others. Chile dismissed the incident as an unfortunate drunken brawl, but the United States charged the Chilean government with complicity in the clash. The assault had been a premeditated way of expressing Chilean resentment of the United States. The exchange of recriminatory charges escalated and led the United States to threaten war. At that point Chile met American demands for "prompt and full reparations" by issuing a formal apology and paying $75,000 in damages.

RESPONSIBILITIES OF THE EXECUTIVE BRANCH

The president, the secretary of state, and the American ambassador in Lima worked on the Berenson case, but the involvement of such high officials occurs in only a small percentage of problems relating to protection. However, Berenson's second trial in 2001 proved to be only one of a number of cases drawing the attention of the president and secretary of state. China arrested half a dozen Americans of Chinese descent and convicted them of spying for Taiwan. Russia jailed two Americans. One was charged with espionage, and the other was convicted on minor drug charges, following more serious allegations that he was an American spy-in-training. In each instance, these convictions occurred at times when the Chinese and Russian leaderships looked toward serious discussions with the United States on a number of vital concerns. The Chinese defused the problem by releasing the prisoners and expelling them from the country. Russian President Vladimir Putin pardoned the man convicted of espionage after discussions with President George W. Bush. The second American was paroled after six months in prison and allowed to return to the United States.

SANCTIONS AND MILITARY FORCE

When the United States has resorted to measures extending beyond negotiation—such as the rupture of diplomatic relations or use of military force for the protection of citizens—the president and secretary of state have inevitably been involved. In Brazil (1826) and Mexico (1858), for example, American diplomats demanded their passports and prepared to return to Washington when those governments refused to indemnify Americans for the seizure of property and mistreatment. Both governments promptly capitulated by making the required payments.

In the nineteenth and early twentieth centuries, the United States used, or sometimes just displayed, military force when American lives and property were threatened. For example, the secretary of state warned Turkey's minister in Washington in 1895 that the United States had dispatched a warship to stand guard off his nation's coast as long as disorder in that country threatened American lives and property.

Not infrequently the United States has moved beyond showing its flag. In 1927, for example, warring factions in China trapped Americans and British nationals in Nanking. Both Western nations had warships anchored in the Yangtze River, positioned so that they could aid their beleaguered countrymen. The ships laid down protective curtains of shellfire that proved crucial in saving foreign lives. And in 1962, during a congressional debate on the potential use of force in Cuba, Secretary of State Dean Rusk had the State Department compile a list of about 150 instances, dated 1798 to 1945, in which American forces had acted without congressional approval. On most of these occasions, the military had been employed to protect American lives and property abroad.

POLITICS OF PROTECTING PROPERTY ABROAD

Among the duties of the U.S. Consular Service, the facilitation of American trade and investment abroad has figured prominently. Since the 1920s and 1930s, however, the United States has increasingly found it difficult to safeguard American property abroad against the rise of intense nationalist feelings in Latin America, Africa, the Middle East, and Asia. Attempts to use military power in their defense, especially if the use of force assumes the character of "gunboat diplomacy," has often proven counterproductive. In these circumstances, the United States has increasingly come to depend on diplomacy.

By the 1920s, for example, Presidents Calvin Coolidge and Herbert Hoover, recognizing that military intervention was arousing the ire of Latin American nations, began a shift toward cooperation. This new line, which President Franklin D. Roosevelt publicized as the policy of the "Good Neighbor," was welcomed in the Western Hemisphere, but private interests in the United States were notably less enthusiastic.

Confirmation of the private interests' apprehensions came in the late 1930s, when Mexico ordered the nationalization of American, British, and Dutch oil companies. The American firms valued their expropriated property at $100 million and demanded that their government force Mexico to make restitution. The Roosevelt administration instead embarked on extended and difficult negotiations that ultimately produced a comprehensive settlement. It provided Mexico with economic assistance, an advantageous trade agreement, and a mechanism for settling a variety of claims. The Roosevelt administration regarded such a sweeping settlement as a major success, especially since it promised the United States increased security along its southwestern frontier at a time when the world was going to war. Administration officials also thought that American negotiators had won a substantial victory in gaining $24 million for American interests in Mexican oil. Mexico's initial intent had been to expropriate those interests, making no payment. American oilmen saw much less to praise, but they had no alternative to taking the sum offered.

After World War II, U.S. corporations faced wholesale nationalization of their overseas property in eastern Europe, Asia, the Middle East, and Latin America. The United States attempted to counter what amounted in most cases to uncompensated seizures with two steps: the negotiation of commercial treaties with guidelines for compensation for nationalized property, and passage of the Economic Cooperation Act of 1948, a measure that provided government-financed insurance for a limited range of investments. Neither the treaties nor the legislation helped much because they covered relatively few of the businesses that were taken over. In consequence, the United States sought, wherever it could, lump sum settlements on property that had been seized. These settlements were reached in the early years of the Cold War, a time when bitter U.S.–Soviet rivalries prompted competitive bidding for the friendship of "Third World" nations. Again, American investors claimed that the negotiated sums were much less than what they had lost. Moreover, the payments came in so slowly that investors suffered additional losses.

THE CONSULAR SERVICE

Nothing has been said yet about the work of the Bureau of Consular Affairs, an agency that operates within the Department of State, in the Berenson case. Throughout the years of Berenson's imprisonment, American consular officials have visited her regularly, checking on the conditions of her jail, her needs, and her well-being. Soon after her initial conviction, Berenson was shipped to a prison that had been constructed to house terrorists. It was in a remote location, some twelve thousand feet high in the Andes. No heat warmed the frigid mountain air. Rats were everywhere, and medical services were not provided.

What the consuls saw touched off sustained American efforts to have Berenson moved to another prison. American consuls argued that, given the prison environment, her health would suffer. Peruvian authorities initially refused, but they eventually conceded when Berenson's physical condition did begin to deteriorate. Beyond these efforts, the consular office facilitated her family's shipments of warm clothing, blankets, medicine, and food. Except for the disagreement over where Berenson was to be imprisoned, Peru did not interfere with the services of the consular office. The United States, Peru, and almost all other nations signed the Vienna Convention on Consular Relations of 1963. In addition, the United States had concluded with Peru, as it has with most other nations, bilateral agreements that refined the Vienna Convention's understandings so that they more precisely fit the circumstances of the two countries' relationships. This means that what the consular officers may do on behalf of American citizens varies from country to country, but, generally speaking, they provide an impressive array of services for citizens almost everywhere in the world.

America's Founders, as former British subjects, knew how much Great Britain valued its consular officers as facilitators of that nation's trade. It is scarcely surprising, therefore, that the Constitution links presidential appointment of consuls with other officials representing the United States abroad. However, the consular service of the infant Republic did not resemble the one operating today. American consuls were initially assigned to posts—often foreign ports—where American merchants traded.

Not infrequently, these early consuls were themselves merchants willing to perform official duties on the side. When an American ship sailed into port, the consul received and held the ship's papers until the captain had met his obligations to the crew and local authorities. He certified invoices on merchandise bound for the United States. He might also send to the State Department information that helped American merchants identify local marketing trends. In lieu of salaries, consuls retained a portion of the fees that they collected for handling documents related to trade. In only a very few places could substantial incomes be realized from these fees. Nineteenth-century consuls in Amoy, China, reputedly collected upward of $40,000 annually, and those at Liverpool, England, earned about $60,000 a year.

American seamen were the most likely recipients of any protective services offered by these early consuls. Sometimes consuls found themselves mediating controversies between officers and crews of American vessels, investigating charges of mutiny, or representing American seamen in trouble with local authorities. A stranded and destitute seaman could sometimes look to the consul for a loan that funded his return to the United States. If an American died abroad, the nearest consul might ship his body home and help with settling his estate.

By the latter half of the nineteenth century, the number of Americans traveling or residing abroad escalated rapidly. The U.S. government, however, apparently gave little thought to the impact of these developments on the Consular Service. The impact, however, immediately became apparent when some fifty thousand Americans were trapped in Europe at the outbreak of World War I. Most of those in Europe had gone abroad without passports. Only as war closed in did they discover an urgent need to establish their national identity. The disruption of banking facilities left thousands without funds, and pressures on shipping stranded thousands of those anxious to return home. American consuls throughout Europe attempted to locate and report to families in the United States on Americans scattered over the continent. Their offices issued emergency passports, arranged loans, and pressured steamship lines into providing immediate passage for thousands of Americans. This emergency proved to be one of the experiences that prompted efforts to modernize and expand the Consular Service. The Rogers Act of 1924, for example, authorized important steps toward staffing the Consular Service with trained professionals and integrating consuls into the nation's corps of career foreign service officers.

The modern Bureau of Consular Affairs' efforts to protect Americans abroad have become much broader than those of the agency in its earlier years. Americans preparing to leave the United States to travel or live may consult the bureau's voluminous, and continually updated, files on the Internet. Those who do, will find much more than detailed descriptions of how consular officers may assist those who are arrested and jailed or those caught in emergencies.

THE RANGE OF CONTEMPORARY CONSULAR SERVICES

Much on the bureau's web site addresses the potential concerns of travelers, some routine and some dealing with emergencies:

Passports and visas; travel publications; country background notes; key officers at U.S. Foreign Service posts and how to contact them.

Travelers' health concerns; U.S. customs information; cruise ship sanitation inspection scores; foreign airline safety data and related performance information.

Emergency services available through consular offices and aid available in international parental child abduction.

Detailed travel warning for each of the world's countries, covering all manner of things that might catch Americans by surprise (everything from slight differences in U.S. and Canadian traffic laws to rigidly enforced dress codes in Muslim countries).

Those going abroad to work for an American corporation may attend seminars (the Bureau of Consular Affairs does not release agendas for these gatherings) that in all likelihood deal with business law in one or more targeted countries, policies of host governments relating to foreign corporations, labor relations, and—in countries where terrorism has been a threat—security for executives and their families. Both those in business and others planning to live abroad are offered information for most countries on a number of domestic issues: marriage and divorce, dual citizenship and births overseas, and schools for American children.

BIBLIOGRAPHY

Borchard, Edwin M. The Diplomatic Protection of Citizens Abroad. New York, 1928. Remains basic, despite its age.

Crane, Katherine. Mr. Carr of State. New York, 1960. Biography of the man who helped transform the Department of State into a twentieth-century institution.

Dunn, Frederick S. The Protection of Nationals. Baltimore, 1932. An older but still indispensable study.

Frey, Linda S., and Marsha L. Frey. The History of Diplomatic Immunity. Columbus, Ohio, 1999. A splendid study of the origins of modern immunity bestowed on diplomatic personnel and the roots of extraterritoriality.

Gordon, Wendell C. The Expropriation of Foreign-Owned Property in Mexico. Washington, D.C., 1941.

Hack worth, Green H. Digest of International Law. 8 vols. Washington, D.C., 1940–1944. Updates and supplements John B. Moore's older multiple-volume work (1906).

Law, Castor H. P. The Local Remedies Rule in International Law. Geneva, 1961. Deals with the complex interplay between municipal and international laws.

Lee, Luke T. Consular Law and Practice. New York, 1961.

——. The Vienna Convention on Consular Relations. Leiden, 1966. Complements Lee's 1961 study.

Lillich, Richard B. The Protection of Foreign Investment: Six Procedural Studies. Syracuse, N.Y., 1965.

——. "The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law Under Attack." American Journal of International Law 69 (1975). Criticizes the tendency of nations to subordinate the protection of nationals to political considerations.

McDougal, Myres S., Harold Laswell, and Lungchu Chen. "The Protection of Aliens from Discrimination: Responsibility of States Conjoined with Human Rights." American Journal of International Law 70 (1976). Another criticism of the subordination of human rights to politics.

Plischke, Elmer. Conduct of American Diplomacy. 3d ed. Princeton, N.J., 1967. Offers insights into the impacts of Cold War politics on the protection offered by the United States to its citizens.

Stuart, Graham H. The Department of State: A History of Its Organization, Procedure, and Personnel. New York, 1949. A classic.

——. American Diplomatic and Consular Practice. 3d ed. New York, 1976. Especially useful for the early work of the consular service.

Von Glahn, Gerhard. Law Among Nations: An Introduction to Public International Law. 3d ed. New York, 1976. Contains four chapters summarizing the nature of law pertaining to the protection of foreign nationals abroad.

White, Gillian. Nationalization of Foreign Property. New York, 1962.

See also Department of State; Extraterritoriality; Human Rights; International Law; Terrorism and Counterterrorism .

EXTRATERRITORIALITY

Chinese authorities in 1821 charged a seaman, Francis Terranova, a crewman aboard an American merchant vessel trading in Canton, with having killed a woman. Her death was accidental. An earthen pot had been knocked overboard, striking the victim, who was in a boat below. Neither the ship's captain nor crew believed Terranova was guilty, but the woman's family was offered a cash settlement. Chinese authorities, however, stepped in to insist on a trial that was held on the deck of the American vessel. The proceedings were brief. The magistrate heard the charges and promptly sentenced Terranova to death by strangulation. No testimony on behalf of the defendant was allowed. The outraged Americans initially refused to surrender Terranova, but they relented when authorities embargoed any further trade. After Terranova died, trade resumed.

Incidents such as this prompted the United States to go along with European nations in negotiating treaties that granted extraterritorial rights to Americans in China. Reduced to essentials, extraterritorial rights exempted Americans from the operation of Chinese law and courts. If an American in China committed either a criminal or a civil offense, he could theoretically be charged and tried in an American court. As a practical matter, this proved virtually impossible.

China was not alone in granting extraterritorial rights. Other countries in the Middle East and Asia signed similar treaties. None of them, of course, did so willingly. They capitulated in the face of the superior power of British or French forces. Americans shared these rights, largely because their government proved adept at negotiating treaties that embodied the advantages Europe had won.

Extraterritoriality was not destined to survive very long (except as a special privilege known today as diplomatic immunity). The system was doomed by the resurgent power of the "Third World" states. It was gone everywhere by the end of World War II. An American in Saudi Arabia, for example, may not seek refuge in his own nation's laws if he violates his host's dress codes or prohibitions against consumption of alcohol. He will be subject to the full weight of the host nation's system of justice.