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Abstract
This essay dwells upon the right to access consular assistance and protection and its relevance to the architecture of a safe, orderly, and regular migration. The work first examines the relationship between the state and its citizens abroad, concentrating particularly on the concept of nationality as the legal bond connecting state and individual. It then presents an overview of the main international legal documents prescribing the right to consular assistance and protection; special emphasis is placed on the 1963 Vienna Convention on Consular Relations. The third and final part of this essay is dedicated to analyse the scope of the right to access consular assistance and protection in connection with Objective 14 of the Global Compact for Safe, Orderly, and Regular Migration. The essay concludes that the relevance of consular assistance and protection to a safe, orderly, and regular migration cannot be underestimated, once consular officials play a pivotal role in the implementation and safeguarding of fundamental rights of all migrants at all times.
Acknowledgements
I would like to thank Christina Oelgemoller, Richard Black, and the other reviewers for their constructive comments and feedbacks. The usual caveat applies.
Notes
1 According to one commentator, consular protection would require the existence of an international wrongful act, and the claim could be brought against the authority that committed the wrongdoing before a national court (whilst in the case of diplomatic protection the claim is brought before an international forum, normally the ICJ). On the other hand, consular assistance would comprise all administrative functions incumbent upon consular officials (Piernas Citation1993, 46). However, there is no clear-cut distinction between both modalities, which may be used together or interchangeably.
2 The integral text of the report is at http://www.un.org/en/development/desa/population/migration/events/coordination/15/documents/Report%20of%20SRSG%20on%20Migration%20-%20A.71.728_ADVANCE.pdf.
3 On the other hand, the Global Compact on Refugees makes no mention whatsoever of consular assistance and protection, for an obvious reason: the very definition of international protection implies that asylum-seekers and refugees are unable or unwilling to receive protection from their own governments.
4 For the limited purposes of this essay, we will consider “citizenship” and “nationality” as interchangeable terms.
5 As the US Supreme Court asserted in Inglis v. Trustees of Sailor’s Snug Harbor (1830), “the doctrine of allegiance … rests on the ground of a mutual compact between the government and the citizen or subject, which it is said cannot be dissolved by either party without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protection which the government affords them”.
6 The two traditional principles guiding the acquisition of nationality are jus sanguinis (descendant from a national) and jus soli (birth within the territory of the state).
7 As the PCIJ expressed, questions of nationality are in principle within the domestic jurisdiction of the state: Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco (Citation1923, 24).
8 Article 1 of the 1930 Hague Convention on the Conflict of Laws states “it is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality.”
9 Article 20 of the American Convention on Human Rights goes further: “every person has the right to the nationality of the State in whose territory he [or she] was born if he [or she] does not have the right to any other nationality.”
10 In fact, international law has long recognized a right of individuals to access consular assistance (i.e. a right to communicate with consular and diplomatic officials). Be that as it may, the decision to provide or withold assistance to nationals abroad is still a prerogative of states. Nevertheless, such discretion may find some constraints at the municipal level, where national laws establish a duty to provide assistance to nationals abroad.
11 Article 5(m) establishes that consular functions may consist in “performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.”
12 According to Article 36(1)(a), “consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.”
13 Article 16(7)(a) establishes that “when a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner: the consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor.”
14 Article 23 provides that “migrant workers and members of their families shall have the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the present Convention are impaired. In particular, in case of expulsion, the person concerned shall be informed of this right without delay and the authorities of the expelling State shall facilitate the exercise of such right.”
15 Article 46 of the CFREU prescribes that “every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.”
16 The concept first appeared in Article 8(1) of the Treaty on European Union (the Maastricht Treaty), and was the first time in the history of contemporary international law that a supranational citizenship was created (Crawford Citation2012, 524).
17 Such as the New York Declaration; reports from the Global Consular Forum; Resolutions 54/166, 55/92, 56/70, 57/218, 58/190, 59/194, 60/169, 61/165, 62/156, 63/184, 64/166, 65/212, 66/172, 69/177, 70/147, and 72/179 from the UN General Assembly; Resolutions 1717(XXX-O/00), 1898 (XXXII-O/02), 1928 (XXXIII-O/03), 2130 (XXXV-O/05), 2224 XXXVI-O/06 and 2456 (XXXIX-O/09) from the General Assembly of the Organization of American States (OAS); the EU Commission Communication on Consular Protection; Principles and Guidelines of the Right to a Fair Trial and Legal Assistance in Africa; Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa; ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers; Durban Declaration and Programme of Action.
18 See UN General Assembly Resolutions 54/166, 55/92, 56/70, 57/218, 58/190, 59/194, 60/169, 61/165, 62/156, 63/184, 64/166, 65/212, 66/172, 69/177, 70/147, 72/179.
19 See Articles 1, 6A(ii) and 6B of the Statute of the UNHCR.