north-korea
Does the US have a duty to negotiate the release of detained US citizens in the DPRK?
<p>Given that a troubled soldier has trespassed into he DPRK: <a href="https://abcnews.go.com/Politics/worry-price-soldier-travis-king-back-north-korea/story?id=101581768" rel="noreferrer">https://abcnews.go.com/Politics/worry-price-soldier-travis-king-back-north-korea/story?id=101581768</a></p>
<ol>
<li>Does the US or its military have a duty to negotiate a release for the detained soldier?</li>
<li>Does the US have the same duty to US citizens trespassing &amp; detained by the DPRK?</li>
</ol>

<p>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).</p>
<p>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.</p>
<p>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.</p>

<p>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.</p>

<p>The <strong>Vienna Convention Consular Relations (1963-04-24)</strong> Article 5 (e) give a country the right to <em>help and assist</em> their nationals, either directly through their consulate (or through another consulate that represents their interests<sup>1</sup>).</p>
<p>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).</p>
<hr />
<p><sup>1</sup> Article 27 (1)(c) <em>the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State</em>.</p>
<ul>
<li><a href="https://en.wikipedia.org/wiki/Embassy_of_Sweden,_Pyongyang" rel="nofollow noreferrer">Embassy of Sweden, Pyongyang - Wikipedia</a>:</li>
</ul>
<blockquote>
<p>The Swedish embassy serves as the protecting power for the United States and as consular representation for Australia, Canada, Italy, Finland, and Iceland.</p>
</blockquote>
<ul>
<li><a href="https://travel.state.gov/content/travel/en/resourcesold/csi/us-embassies/north-korea.html" rel="nofollow noreferrer">U.S. Department of State - Swedish Embassy (U.S. Protecting Power)</a></li>
</ul>

<p>There is a statutory duty imposed on the president by <a href="https://www.law.cornell.edu/uscode/text/22/1732" rel="nofollow noreferrer">22 USC 1732</a>:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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 &quot;demand the release&quot; of the detainee and to &quot;use such means ... as he may think necessary and proper,&quot; it doesn't necessarily require negotiation.</p>
<p>There is a similar statutory duty imposed on the secretary of state by <a href="https://www.law.cornell.edu/uscode/text/22/chapter-23/subchapter-II" rel="nofollow noreferrer">22 USC chapter 23, subchapter II (sections 1741 and following)</a>:</p>
<blockquote>
<p>(a) Review</p>
<p>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—</p>
<p>...</p>
<p>(b) Referrals to Special Envoy; notification to Congress</p>
<p>(1) In general</p>
<p>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 ...</p>
</blockquote>
<p>This subchapter is a bit more vague, though, with requirements such as</p>
<blockquote>
<p>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; ...</p>
</blockquote>
<p>It is not clear from a brief reading whether any of this imposes a duty to negotiate anyone's release under any circumstances.</p>

<p>No. It doesn't. While the US does generally try, it has no obligation to do so.</p>
<p>Here's a State Department web page discussing...</p>
<p><a href="https://travel.state.gov/content/travel/en/international-travel/emergencies/arrest-detention.html" rel="nofollow noreferrer">https://travel.state.gov/content/travel/en/international-travel/emergencies/arrest-detention.html</a></p>
