57. Diplomatic assistance and protection

4 Apr

Diplomatic assistance and protection

1. In contemporary international relations, actions that most often challenge diplomatic and consular representatives are undoubtedly those that relate to the protection function. These are particularly with respect the responsibility to care and protect their nationals residing temporarily or permanently in the receiving State, as established by international legal instruments and domestic legislation.

2. The protection function of diplomatic representatives includes the responsibility to safeguard, promote and protect the interests and rights of the State they represent.

3. Significantly, the interests of a State must not to be confused with those of its nationals. Part of the obligations of the ambassador is to ensure respect for the dignity of the country he represents and this takes precedence over those of its nationals, whether individuals or businesses. Thus, no State may be obliged to defend the interests of an individual or a community to the detriment of the interests of the country as a whole.

4. Protection is recorded as a vital role in the diplomatic mission in the Vienna Convention on Diplomatic Relations. Such protection is exercised both in the defence of the sending State and of its nationals, and also of the ships and aircraft flying the flag of the sending State.

5. A diplomatic mission may also protect the interests of those States and their nationals, ships and aircraft, for which the sending State has assumed international representation in the receiving State, as specified in the aforementioned Vienna Convention.

6. Historically, non-nationals were extended protection by certain diplomatic missions when in the receiving State there was no diplomatic representation of their State or of their nationality.

7. As a diplomatic function, the exercise of protection by the respective State means that is usually done by a permanent diplomatic mission, but also by special missions or through direct diplomacy with the appropriate authorities. The protection would be excluded as a diplomatic role when performed by other means with various possible international authorities, either from its inception, as well as a continuation of a first performance started by a diplomatic mission.

8. Consular protection, as reflected in the Vienna Convention on Consular Relations, is not limited only to extreme cases. It covers a variety of services offered to compatriots, such as the tasks of guidance, providing information and making representations to local authorities.

9. For the implementation of international action to protection nationals the action in the receiving State that harms the fellow countrymen should be unlawful in relation to international law, such as denial of justice, undue delay in its administration, or sentence against the law.

10. In addition, there should be established “the standard of effective nationality,” that is, there must be a genuine relationship between the individual and the State concerned. A State cannot protect one of its nationals if the person also has the nationality of the State in which he/she is guilty of wrongdoing.

11. A State through it diplomatic mission may also make statements or representations on behalf of companies registered in the said State of if the owners are its nationals.  Any exercise of protection will be acceptable if prior to the particular claim the companies have not exhausted all remedies offered by the law of the State against which a particular claim is filed.

12. A diplomatic representative can visit imprisoned nationals and may ensure their proper legal defence or request clarification from the local authorities, within the limits permitted by international law.

13. Legal protection is part of the international responsibility of States. International law establishes three forms of reparation for the national upon being cleared of all instituted charges. These are: restitution, compensation and satisfaction.

14. Obviously, a State cannot protect its nationals against the application of the law of another State if this application is made under equal conditions for all inhabitants of that country.

15. It is important to note that because of the complexity and importance, improvisations and mistakes that may occur during the protection exercise, unpredictable damage and other consequences may result to the detriment of relations between the concerned States.

Editor’s Note: Credits to Amb. Manuel Morales Lama

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