American journalists reporting in the United States are protected by constitutional rights—including the First Amendment rights to free speech and freedom of the press. However, when American journalists practice abroad, they may report from countries with varying levels of press freedom. Some countries legally guarantee rights to freedom of speech similar to those secured by the United States Constitution. Other countries severely curtail freedom of expression. To inform journalists who may work abroad, the U.S. State Department includes country-specific information on press and media freedoms in its Human Rights reports.

American reporter Evan Gershkovich covers Russia, Ukraine, and the former Soviet Union for The Wall Street Journal. On March 29, 2023, while reporting in Russia, he was detained on espionage charges. The State Department condemned the Kremlin’s “repression of independent voices in Russia” and called for “the Russian Federation to immediately release Mr. Gershkovich” from the wrongful detention.

The State Department has also accused Russia of violating international law and its obligations “under our consular convention.” The Confederated Independent States Treaty states that a consular officer shall have to right to visit an arrested or detained national of their state “within two to four days of the arrest or detention of such national depending upon his location.” Consular notification and access are “mutual obligations based in treaties between the U.S. government and foreign governments” that “help ensure that U.S. citizens have the same protections if arrested or detained abroad.” In the Confederated Independent States Treaty, the Russian government assured Americans of this protection.

However, during the April 10, 2023, State Department Press Briefing, Principal Deputy Spokesperson Vedant Patel noted that Russia had up to that point denied consular access for Gershkovich. Patel stated that the denial of consular access “is a violation of Russia’s obligations under our consular convention and a violation against international law. We have stressed the need for the Russian Government to provide this access as soon as possible.” When asked about the United States’s response to the international law violation, Patel responded, “We have a number of tools at our disposal . . . to hold the Russian Federation accountable broadly . . . this is a consular issue that we are working through appropriate channels.”

The Wall Street Journal has noted that a similar situation to Evan Gershkovich’s took place in 1986, during the Cold War, when Nicholas Daniloff, a correspondent for the U.S. News & World Report, was accused of espionage and detained by the Soviet Union. Daniloff was eventually freed in a prisoner swap.

 

Violations of international law are often enforced through diplomatic measures. The United States has condemned Russia’s violation under our consular convention and stressed the need for the Russian Government to provide Gershkovich consular access. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.