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Given that a troubled soldier has trespassed into he DPRK: https://abcnews.go.com/Politics/worry-price-soldier-travis-king-back-north-korea/story?id=101581768

  1. Does the US or its military have a duty to negotiate a release for the detained soldier?
  2. Does the US have the same duty to US citizens trespassing & detained by the DPRK?
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    I wonder if the desires of the person in question matters. If it is against his will to be returned to face US military discipline, that would be more like an extradition than a 'release', would it not? Jul 24, 2023 at 7:47
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    @SpehroPefhany it also depends whether the DPRK wants to keep them. IIRC citizens have a right to flee and apply for asylum, and the admitting country might detain them while processing them (but not forever and not if they want to go back)?
    – user253751
    Jul 24, 2023 at 10:16
  • At a practical level, such a law would be very silly, as it would give the DPRK a very strong negotiating position: "I know your law forces you to get Joe released, and I will only release Joe if you do whatever I ask you."
    – SJuan76
    Jul 24, 2023 at 16:18
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    Not the DPRK, but there is the American Service-Members' Protection Act en.wikipedia.org/wiki/… . Colloquially called the "Invade the Hague Act" it authorizes the president to use any means necessary to secure the release of American Soldiers if the ICC attempts to prosecute them. But even then I believe the act only authorizes such actions, but it doesn't seem to require them. The Bush admin, who pushed for such a law, would probably have argued to have a duty to do so, but then you are getting into semantics.
    – eps
    Jul 24, 2023 at 21:48
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    @eps I've always heard "The Hague Invasion Act," which fits the usual naming style a bit better. Regardless, the facts of this case do not come remotely close to falling under that law.
    – phoog
    Jul 25, 2023 at 7:02

5 Answers 5

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Any duty that exists is not legally enforceable in the courts in the U.S. (there are one or two cases in Canada imposing a similar duty in extraordinary rendition cases).

Also, the arguably legal duty to provide diplomatic assistance to one's citizens doesn't apply in countries like North Korea where the U.S. has no diplomats.

In practice, the U.S. government will do everything reasonably within its power to secure the release of a U.S. citizen held by a hostile foreign power (even a U.S. citizen who has behaved badly), because that's in the DNA of how the U.S. State Department always acts. But, at this point, short of an extreme Special Operations mission to abduct a prisoner that voluntarily defected from the U.S. while stationed in South Korea, there really isn't anything that the U.S. could do even if ordered to do so.

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    "doesn't apply in countries like North Korea where the U.S. has no diplomats": The statutory duty imposed by 22 USC 1732 and 22 USC 1741 et seq. does not depend on the existence of diplomatic relations (see my answer). Any efforts in connection with these (or indeed any official communication between the US and the DPRK) would normally occur through Sweden, the "protecting power" of US interests in North Korea. (Whether Sweden will retain that role after joining NATO remains to be seen.)
    – phoog
    Jul 25, 2023 at 8:30
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There is no duty rescue, except if a party negligently places another in harm (this is a general principle of law, probably not imposed on a government). A duty to negotiate is even less likely. POTUS can decide to negotiate, but Congress has not mandated any duty to negotiate so the courts will not order POTUS to negotiate if he decides not to. POTUS has the exclusive power to negotiate treaties, and the Senate has the exclusive power to approve them, so there is no constitutional basis for a law forcing a president to negotiate especially with a nation that we have no diplomatic relations with.

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The Vienna Convention Consular Relations (1963-04-24) Article 5 (e) give a country the right to help and assist their nationals, either directly through their consulate (or through another consulate that represents their interests1).

This is more of a moral obligation to assist their citizens even if a crime has been committed by them (by assisting them the country does not admit/claim that the action of their citizen was right).


1 Article 27 (1)(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.

The Swedish embassy serves as the protecting power for the United States and as consular representation for Australia, Canada, Italy, Finland, and Iceland.

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  • The Vienna Convention doesn't apply in a rare case like this one where the U.S. and North Korea don't have diplomatic relations with each other.
    – ohwilleke
    Jul 23, 2023 at 22:13
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    @ohwilleke Not true at all. Sweden represents US interests in the DPRK (North Korea). The problem presently is that the position is vacant due to Covid restrictions. Jul 23, 2023 at 22:17
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    Sweden may voluntarily represent U.S. interests in the DPRK but that isn't equivalent to obligations present when there is a genuine U.S. diplomatic presence in the DPRK. It is just a back channel.
    – ohwilleke
    Jul 23, 2023 at 22:20
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    @ohwilleke Even if it is 'just a back channel', it is still a part of the Vienna Convention. Article 27 (1)(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State. So your claim that it doesn't apply is false. Jul 23, 2023 at 22:29
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    @ohwilleke And yet it seems to be clear to others. Embassy of Sweden, Pyongyang - Wikipedia: The Swedish embassy serves as the protecting power for the United States and as consular representation for Australia, Canada, Italy, Finland, and Iceland. and U.S. Department of State - Swedish Embassy (U.S. Protecting Power) Jul 23, 2023 at 22:42
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There is a statutory duty imposed on the president by 22 USC 1732:

Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war and not otherwise prohibited by law, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.

This obviously does not apply to people who are detained for good reason, so it arguably does not apply to someone detained for entering a country contrary to law until the detention becomes excessive. Furthermore, because the duty is to "demand the release" of the detainee and to "use such means ... as he may think necessary and proper," it doesn't necessarily require negotiation.

There is a similar statutory duty imposed on the secretary of state by 22 USC chapter 23, subchapter II (sections 1741 and following):

(a) Review

The Secretary of State shall review, as expeditiously as possible, the cases of United States nationals detained abroad to determine if there is credible information that they are being detained unlawfully or wrongfully, based on criteria which may include whether—

...

(b) Referrals to Special Envoy; notification to Congress

(1) In general

Upon a determination by the Secretary of State, based on the totality of the circumstances, that there is credible information that the detention of a United States national abroad is unlawful or wrongful, and regardless of whether the detention is by a foreign government or a nongovernmental actor, the Secretary shall— (A)expeditiously transfer responsibility for such case from the Bureau of Consular Affairs of the Department of State to the Special Presidential Envoy for Hostage Affairs; and ...

This subchapter is a bit more vague, though, with requirements such as

The Hostage Recovery Fusion Cell shall (1) coordinate efforts by participating agencies to ensure that all relevant information, expertise, and resources are brought to bear to secure the safe recovery of United States nationals held hostage abroad; ...

It is not clear from a brief reading whether any of this imposes a duty to negotiate anyone's release under any circumstances.

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No. It doesn't. While the US does generally try, it has no obligation to do so.

Here's a State Department web page discussing...

https://travel.state.gov/content/travel/en/international-travel/emergencies/arrest-detention.html

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    Can you add a bit more detail to avoid users following links, please. And also see this from the Help Centre Always quote the most relevant part of an important link, in case the external resource is unreachable or goes permanently offline.
    – user35069
    Jul 25, 2023 at 8:28
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    Thanks for the tips
    – STS1SS
    Jul 25, 2023 at 11:48

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