An Illinois Supreme Court rule proposal on issues referred to as “diplomatic Miranda rights” is being supported by the Illinois State Bar Association.

The new Rule 404, Consular Notification for Foreign Nationals, would require state court judges in felony proceedings to notify foreign nationals, at initial appearances, of their rights to have consulates informed that they have been arrested or detained.

The ISBA Board of Governors voted July 20 in favor of a recommendation from the Committee on Supreme Court Rules to support the proposal.

Board member Mark E. Wojcik, a professor at The John Marshall Law School, said the rule would address a problem related to implementing treaty obligations under Article 36 of the Vienna Convention on Consular Relations.

“If jurisdictions in the United States do not act on this, other countries could deny similar rights to our citizens abroad who are arrested or detained,” he said.

The U.S. has been sued three times in the International Court of Justice for violations of the rights of foreign nationals to have consulates contacted when they are charged in criminal matters.

Drafted by Southern Illinois University Law Prof. Cindy Buys, the proposal is supported by the ISBA International and Immigration Law Section Council but opposed by the Criminal Justice Section Council.

The text of the Rule 404 proposal follows.

“At the initial appearance, the circuit court must advise a criminal defendant in open court that any foreign national who is arrested or detained has the right to have notice of that fact given to the consular representatives of the country of his or her nationality and the right to communicate with his or her consular representatives. The court must make a written record that such notice was given.”

The Supreme Court Rules Committee comment points out that, as a party to the Vienna Convention, this country is bound by the Supremacy Clause in Article VI of the Constitution to consider it part of the supreme law of the U.S.