The protection of nationals and their interests abroad
1. The current system of diplomatic relations has managed to adapt traditional core functions to contemporary requirements, supported by the modern international law. One of the most important functions of the diplomatic mission is the protection of state interests that it represents and of its nationals (residents in the receiving State).
2. The protection of nationals of a State, living abroad, was originally a function that corresponded almost exclusively to the consular office. However, according to the precepts of the Vienna Convention on Diplomatic Relations, it is also one of the basic obligations of the diplomatic mission which, in exercising its functions, must to so within the limits permitted by international law.
3. Throughout history, the embassy has dealt more broadly with the protection of state interests it represents. This responsibility is executed in parallel with the duties of monitoring and reporting on bilateral matters and relevant local political, economic and social issues.
4. It is noted that the protection function has traditionally been understood as the set of actions which a state exercises against another State, through its diplomatic or consular representatives, to protect their nationals who reside temporarily or permanently in the foreign territory.
5. Similarly, under international law, receiving States must assure foreigners staying in their territory “treatment no less than a minimum degree.” Such obligations can also be stated in bilateral agreements which stipulate precisely the rights and duties of foreign citizens.
6. It is the responsibility of the Foreign Service to provide adequate protection and assistance to citizens residing temporarily or permanently in other States, though this protection may be influenced by those States’ domestic laws and international regulations
7. On most occasions, such protection may not be desired or possible since tourists and business people rarely come into contact with the diplomatic missions and consular offices of their country abroad.
8. However, these diplomatic missions, as part of the State’s public services, more properly can assist nationals in various fields to assess the legal and political risks and threats of loss of property and to treat severe cases of arbitration that may arise.
9. The conditions that must be considered before the diplomatic or consular officer may validly grant the corresponding protection are:
a) The action that harms the national should be unlawful in relation to international law;
b) The person seeking protection must be a national of the State exercising protection from the moment that the person is affected by the wrongful act and during the period such protection is exercised;
c) A State cannot protect a national if, at the same time, the person has the nationality of the State guilty of wrongdoing; and
d) The request for protection against the unlawful act must be final, meaning that the national must first have exhausted all domestic remedies. In the case of a national arrested or charged for committing crimes, diplomatic agents and consular officers may visit him in prison, ensuring adequate defence, seeking clarification from local authorities, among other actions, within their powers. However, they must be careful not to interfere in internal affairs of the receiving State.
10. The consular offices operate in foreign territory under the authority of the Chief of the Diplomatic Mission. They carry out their duties under a commission of their government, with the approval of the receiving State.
11. From a very practical standpoint, the consular officers have the duty to inform their nationals residing in the host State of the right of protection offered by the diplomatic mission. This responsibility is related to the obligation to keep an updated Register of nationals.
12. The protection function is based on the “international responsibility of States” which allows complaining nationals to seek such protection of their persons or their properties or their interests if they believe they have been wronged.
13. This international responsibility supports a diplomatic claim in cases of denial of justice, when there is undue delay in its administration, or in cases of sentences perceived to be not according to the existing law.
14. International law contains three forms of reparation in these cases. These are (1) restitution, (2) compensation and (3) satisfaction. In this regard, it was the “excesses” in the claims in the area of protection that motivated the Calvo Doctrine. [The Calvo Doctrine is a foreign policy doctrine which holds that jurisdiction in international investment disputes lies with the country in which the investment is located. The Calvo Doctrine thus proposed to prohibit diplomatic protection or (armed) intervention before local resources were exhausted. An investor, under this doctrine, has no recourse but to use the local courts, rather than those of their home country. The principle, named after Carlos Calvo, an Argentine jurist, has been applied throughout Latin America and other areas of the world.]
15. International practice establishes the difference between diplomatic protection and consular action. Diplomatic protection is executed by diplomatic agents at the request of a national of the country they represent, after he has exhausted domestic remedies, especially in cases of a proven miscarriage of justice. Such protection is initiated by sending a diplomatic note to the host State’s Ministry of Foreign Affairs. But even before such action, the Chief of Mission in question must duly inform the Ministry of Foreign Affairs of his own country about the case, and, if deemed necessary, may request the corresponding approval before starting this procedure. This international responsibility supports diplomatic claims in cases of denial of justice, even when there is undue delay in its administration, or in cases of sentences perceived to be not according to the existing law.
16. In contrast, consular action corresponds to matters brought before local authorities in the area where the consular office is located. The matters relate to representation of defenceless nationals against faults or violations relating to the application of domestic law and also in instances where there is failure to exhaust domestic legal remedies.
17. Consular action coexists with the so-called consular assistance, which the head of the consular office performs for nationals of its State, without involving the foreign authority. This assistance is based on:
a) The recognition by the receiving State, according to treaty law, of the consular officer’s authority to perform such actions.
b) The proper responsibility of the sending State to address the welfare of its citizens, even outside the territorial limits.
18. Consular assistance does not imply a claim arising from a breach of the rights of national or a deficiency in the judicial process. Protection is not meant to support a national’s claim for preferential treatment in comparison with nationals of the receiving State, except in the case of fundamental rights stipulated by international law, including those related to slavery and prostitution.
19. A State cannot claim to protect its nationals against the application of the law of another, if this application is made under equal conditions for all inhabitants of that country. The “excesses” in the claims in the area of protection motivated the Calvo Doctrine, which expresses “that an alien who resides in another country benefits from migration, and should not pretend, therefore, to be entitled to a different regime and more favourable than for nationals.”
20. With regard to diplomatic protection, the Inter-American system set its position in the Pact of Bogota of 1948 (Article VII), which states: “The High Contracting Parties bind themselves not to make diplomatic representations in order to protect their nationals, or to refer a controversy to a court of international jurisdiction for that purpose, when the said nationals have had available the means to place their case before competent domestic courts of the respective State.”
21. The following factors are essential if it is necessary for a State to provide protection:
a) The national concerned is seeking State protection.
b) The issue of protection is raised in a timely manner.
22. The protection or defence, both diplomatic and consular, is presented from the legal perspective as a claim to “international responsibility of States”, through which the complaining country’s citizens in their persons, their property or their interests have been wronged. The international responsibility arises from the realisation of an international illegal act resulting in the breach of these rights by a State against another State’s nationals or their property or their interests.
23. There are two types of international violations – those involving the commission of a crime, and others designated as crimes. These crimes, such as the practice of slavery, genocide, or egregious harm to the environment, constitute a serious violation to the maintenance of international peace and security.
24. Importantly, the behaviour of any of the branches of government (executive, legislative, judicial or other body within the framework of governmental organisation) is considered as attributable to the State. The law empowers the State to exercise sovereign authority over conduct arising from an entity that is not part of the structure of the State or of a territorial governmental entity.
25. International practice has established conclusively the international responsibility of the unauthorised acts of State organs even if they are performed outside the limits of its jurisdiction and are contrary to law.
26. On the other hand, the State is not liable for the acts or omissions incurred by staff of the branches of government when acting in a private capacity. Similarly, the State assumes no responsibility for the conduct of members of an insurrectionary movement, unless they become members of the new government.
27. The conduct of an organ or multiple organs placed at the State’s disposal by another State or an international organisation, provided that such bodies act on the basis of governmental authority of the host State, is the responsibility of the said host State.
28. Circumstances that are considered exclusive to the international responsibility of the State include consent, force majeure, distress, necessity, countermeasures and self-defence:
a) Consent is understood as an agreement between States to waive certain specific requirements. This agreement must be reached prior to the commission or omission of a fact.
b) Force majeure refers to an irresistible force of nature or unforeseen event that makes it impossible for action in accordance with the State’s international obligations, and that it has not wilfully or negligently contributed to the emergence of such an event.
c) Distress applies when the life of the individual or of a group of persons in the care of the receiving State is in danger, providing that the action of said State has not led to the situation.
d) The state of necessity may be invoked when the execution of an act is the only means of safeguarding an essential interest of the State against an imminent danger. No one can argue a case of imminent danger when the obligation arises under a rule of jus cogens [compelling law].
e) Regarding counter-measures such as sanctions, international law can be exercised by a State affected by the breach of an international obligation which is the exclusive responsibility of the State if these measures are proportionate to the violation.
f) Self-defence constitutes a lawful measure implemented within the principles of the Charter of the United Nations [Article 51].
29. There are certain acts not sanctioned by international law and, despite their lawful nature, may be highly dangerous. It may be argued that these acts should be regulated in order to sustain the international responsibility of their perpetrators. These acts include the “peaceful uses” of nuclear energy and damage by caused by satellites on Earth’s surface, among others. In this sense, various concepts like “dangerous activities”, “exceptional risk” and “harm” are now defining the responsibility of entities with international legal responsibility.
30. International law recognises three forms of reparation in these cases, which are: restitution, compensation and satisfaction. Restitution seeks to restore the situation to the previous state of affairs that existed before the damage was caused. Awarding compensation money to victims of the offence and is the most common form of reparation. And finally, it seeks satisfaction, mainly an apology from the responsible officials or the imposition of a penalty or rigorous application of domestic legislation to punish the perpetrator.
31. Protection is also applied to multiple and varied aspects, such as the protection by the consul of his State’s marine and aviation services, and also the protection of the historical and cultural heritage of the nation, national institutions, the image and prestige of his country and any other areas which do not receive the objection of the receiving State.
32. At present the importance accorded to the functions of protection is not limited to Foreign Service responsibilities. To give proper “support” to the work of protection, certain foreign ministries now have special departments with full responsibility for this function and they work in coordination with the State’s consular offices.
33. It must be emphasised that the complexity and importance of this diplomatic and consular exercise, particularly for the protection function, requires a foreign service with the ability, experience and dedication to serve the needs and aspirations of the country.
© Odeen Ishmael, 2012