Navigating Disparate Justice Systems: How Governments Manage Detention of Nationals in Foreign Countries
- WULR Team
- 1 day ago
- 3 min read
What the detention of nationals in foreign countries means for international law
Written in March, 2025
Written by Emma Hoffman
Last month, Craig and Lindsay Foreman, a couple from Britain, were detained in Iran during a global motorcycle tour for alleged “security crimes” against the state. BBC reports that Asghar Jahangir, a judiciary spokesman, said the couple was “arrested as part of a coordinated intelligence operation” as “individuals [who] were co-operating with front organisations linked to the intelligence services of hostile and Western countries under the pretence of research and investigative activities.”
It’s unclear, however, whether the couple actually engaged in espionage. The Foreign, Commonwealth and Development Office of the U.K. advises against all travel to Iran and warns that “having a British passport or connections to the U.K. can be reason enough for the Iranian authorities to detain [an individual].” Depending on the actual culpability of the Foremans, their detention raises the possibility of legal battles between two diametrically opposed governments — one that claims their national security was put at risk by foreigners and one that would likely vie to protect its nationals against such claims. The question of how states navigate the incarceration — right or wrong — of their citizens in foreign countries is broached by this taut situation.
In the specific case of the U.K., the government’s ability to intervene is typically limited. According to the U.K. government, in the instance of an individual being detained in a foreign country, the government can provide information about local lawyers and judicial procedures, make contact with welfare charities and aid in the transfer of money from family members, but they cannot offer legal advice, initiate legal proceedings or investigate mistreatment allegations. While the U.K. delegates cases of hostage-taking or kidnapping in foreign countries to a specialized law enforcement task force on organized crime — the National Crime Agency — the U.K. makes no distinct effort for an arbitrary national arrest by a governing body from those detained due to actual transgression of local law. The U.K.’s approach to the detention of its nationals is to cooperate with the arresting government, attempting to ensure basic humane treatment of the prisoner to the extent it is able, considering its limited ability to intervene with the judicial procedures in foreign states.
While the capabilities of one state to defend its citizens in the custody of another are limited, international conventions exist to promote relative cohesion. One of the primary sources for such international standards is the U.N.’s 1963 Vienna Convention on Consular Relations, which articulates expectations of “sending” and “receiving” states of nationals crossing between borders. Article 36 of the Convention requires the “receiving” state — in this case, the state arresting a foreign individual — to notify a consular of the “sending state” of an individual’s detention, as well as to permit national representatives to visit the individual for the purpose of arranging legal counsel.
Despite conventions aimed at codifying just, humane treatment of prisoners, transgressions and loopholes allow for the integrity of such agreements to be undermined. The futility of the Convention might be exemplified in the 2003 Mexico v. United States case brought to the International Court of Justice, in which the Mexican government claimed the U.S. violated the Vienna Convention. In the case of 52 Mexican nationals detained and sentenced to death in the U.S., the ICJ found the American government had repeatedly failed to fulfill legal obligations. The U.S. had not properly communicated all pertinent information to Mexican consular officers or permitted adequate interaction between officers and detained individuals, therefore violating Article 36 of the Vienna Convention.
According to the ICJ, numerous cases have been brought to the court with similar grievances, specifically related to the Vienna Convention. The lack of enforcement of such agreements seems to promote an “ask for forgiveness, not permission” mindset among states. While some transgressions may be honest oversights, it’s easy to imagine a situation where a violation is underpinned by hostile motives, but a state feigns honest intent — a covert geopolitical snub. In the case of state-sanctioned detention of international persons, a “receiving state” may arrest and condemn indiscriminately for political purposes, so long as their actions don’t cross into “hostage-taking” or “kidnapping” territory, enabling the “sending state” to act more aggressively. The implications of a case like the Foreman’s raise the question of diplomatic procedure in the detainment of foreign nationals, especially when claims of “good faith” or “national security” are contentious.
While international conventions exist to set norms on the treatment of consular agents and individuals in foreign territory, their vitality is shaky at best when defecting states can manipulate the system on “technicalities” or simply accept the penalty for their actions. Stronger, more direct laws may need to be outlined to prevent such disregard for international conventions.
