Blog post written by Stefanie Grant (Independent Researcher) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
Article 5, Vienna Convention on Consular Relations [VCCR]. ‘Consular functions consist in… protecting in the receiving state the interests of the sending State and of its nationals….’
Article 23, International Convention on the Rights of Migrant Workers [ICMW].‘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…’.
What does the Objective address?
The New York Declaration and the UN Global Compact on Migration together re-state the role of consular protection in the context of contemporary international migration.
The New York Declaration gives priority to consular protection as a means of ‘safeguarding the rights of, protecting the interests of and assisting’ migrant communities, in accordance with relevant international law [Para. 42]. Objective 14 of the Compact commits states to ‘strengthen consular protection …in order to better safeguard the rights and interests of all migrants at all times’ [emphasis added], in accordance with international law.
Objective 14 takes as its starting point the traditional right of states to provide diplomatic and consular protection to their citizens when they are abroad. It goes on to recognise a wider duty to protect individual rights through consular co-operation between states, in accordance with international law. Read together with references to consular protection elsewhere in the Compact [Objectives 7, 8, 13 and 21], Objective 14 addresses the urgent question of how consular institutions can respond to challenges inherent in contemporary migration, including the fact that many of the most vulnerable migrants, and not only those who are legally stateless, lack a state of nationality which is able and willing to provide effective protection. The Compact goes some way towards addressing this significant protection gap through pledging collective action. States thus accept a double commitment: to protect their own nationals, and to step in where other states are unable to provide protection for their citizens, including in emergency or conflict situations. Thus, an EU citizen who is in a country outside the EU where his/her own national state has no representation is entitled to protection by the diplomatic or consular authorities of any other EU country. [Council Directive (EU) 2015/637 of 20 April 2015]
Protection by a migrant’s home state is an important and much older – but often overlooked – adjunct to individual protection under human rights law. Consular protection is rooted in the 1963 Vienna Convention on Consular Relations [‘VCCR’]. The Convention is not listed in the Preamble to the Compact, except by inference as part of international law; the omission is surprising since the Convention has been ratified by most UN member states and reflects international customary law. It recognises the right – although not the legal duty – of states to protect their citizens abroad through consular actions [Art. 36]. Unlike international human rights law, the right is that of the state, not the individual, and is discretionary.
In the years since the VCCR was adopted, international human rights treaty law has recognised individuals as rights-bearers, and now requires states to protect individuals within their jurisdiction regardless of nationality. The two regimes – consular protection under international law, and individual protection under international human rights law – are essentially complementary. In practice they have operated on separate and parallel tracks, and consular protection is often neglected in discussions of migrants’ human rights. The Global Compact goes some way to redressing this imbalance by asserting the contemporary relevance of consular protection, and the need to strengthen it.
Commitments and Actions
Through Objective 14, states have committed to: ‘strengthen consular protection of and assistance to our nationals abroad, as well as consular cooperation between States in order to better safeguard the rights and interests of all migrants at all times, and to build upon the functions of consular missions to enhance interactions between migrants and State authorities of countries of origin, transit and destination, in accordance with international law’ [Para 30].
Six actions are listed:
- Co-operation between states where individual states lack capacity.
- Information exchange to contribute to policy development.
- Bilateral or regional agreements where states have no consular presence.
- Strengthened consular capacities in order to identify, protect and assist ‘our nationals abroad’ who are in a situation of vulnerability, by providing rights training to consular officers.
- Consular registration to facilitate assistance to migrants in emergency situations, including through helplines and national digital data bases.
- Advice on local laws and customs, interaction with authorities, financial inclusion, and business establishment, and issuing travel documents, and consular identity documents.
In the main, these actions reflect accepted consular practice, although (4) describes a more active role in situations where nationals are victims – of human and labour rights violations or abuse, of crime, trafficking in persons, migrants who are subject to smuggling under aggravating circumstances, and migrant workers exploited in the process of recruitment. While the prescribed action is only to train consular officers in ‘human rights-based, gender-responsive and child-sensitive actions’, protective action must logically follow.
Consular protection is instrumental in other Objectives of the GCM.
- Objective 8: where migrants die or are missing on migratory journeys, actions include assistance to migrants to communicate with their families and families to search for missing relatives, especially in the case of unaccompanied children; and establishment by states of transnational coordination channels, including consular cooperation, for families looking for missing migrants.
- Objective 13: actions include ensuring ‘that all migrants in detention are informed about the reasons for their detention, in a language they understand, and facilitate the exercise of their rights, including to communicate with the respective consular or diplomatic missions without delay, …in accordance with international law and due process guarantees’. [O.13(e)] There is an implicit, if unstated, role for the consul in relation to access to justice, independent legal advice, food, healthcare and information [O.13(d) & (f)].
Consular assistance is here presented as a right of the individual. This reflects the advisory position of the Inter American Court of Human Rights which has interpreted the VCCR [Art. 36] as conferring a right to consular assistance on detained foreign nationals; ‘the right to information allows the right to the due process of law [Art 14, International Covenant on Civil and Political Rights] to have practical effect’. Failure to observe the right to information is prejudicial to the due process of law. [O.C.- 16/99 of 1 October 1999]. Similarly, the ICMW [Article 16(7)] contains a right to communicate with consular authorities.
- Objective 21(d): consular officers to assist in the return process with documentation and ‘other services’ in order to ‘ensure’ – inter alia – ‘safety and dignity in return’.
While the text of Objective 21 does not specify an active role for consuls in ensuring specific rights in the return process – e.g. in relation to determining the best interests of the child – this is a logical inference, made stronger by the fact that in almost all situations both the migrant’s country of nationality and the country of destination will be parties to the CRC, and so equally bound to consider the child’s best interests.
Consular protection is also instrumental in other Objectives, notably,
- Objective 3: providing legal guidance on rights, national laws, and access to justice.
- Objective 4: ensuring that ‘all’ migrants have proof of legal identity and adequate documentation.
- Objective 6: actions to ensuring decent work logically engage consular officers where, for example, travel and identity documents are confiscated, or where migrants seek to obtain redress after exploitation, abuse or rights violations, or to participate in legal proceedings. This expands a consul’s role [O.14(d)] in identifying and protecting victims of abuse and migrant workers exploited in the process of recruitment.
Changes to Objective 14 during the negotiations were minor, with one exception. Action (d) refers to situations where nationals are victims of a range of rights violations. The zero draft was amended in ways which both limited and expanded its scope. On the one hand, the final draft narrowed protection to ’our nationals abroad’, replacing the broader term ‘migrants’ which could have implied a wider duty. On the other hand, the final draft adds the word ‘protection’, and significantly expands the list of situations of vulnerability by including ‘victims of human and labour rights violations’, and exploitation in the process of recruitment. This suggests contradictory pressures on the negotiators: national sovereignty vs universality of rights and the imperatives of international protection.
The Compact positively restates the institution of consular protection as a means of collectively protecting the human rights of all migrants at all times. It presents protection as both a duty of states, and a right of individuals. By omitting reference to the VCCR, the Compact makes it harder for states to refuse protection on the ground that it is within their discretion.
In policy terms, the Compact reflects the Sutherland Report’s recommendation that migrants ‘regardless of their nationality, should have access to quality consular protection and assistance in transit’. [Sutherland Report, UN Doc. A/71/728, para 53]. It attempts to address the inverse relationship which often exists between the number of a country’s migrants, and the presence of consulates in the countries where the most vulnerable are to be found. To this end, states have committed to co-operate so that consular services can be provided collectively, where individual states lack consulates in in a particular country.
Set against this, one gap and one challenge should be mentioned.
Consular protection is of no use to stateless persons who have no states of nationality or consuls to whom they can turn. A comparable protection and assistance regime is needed for this most vulnerable population. This is a major protection gap, which the Compact does not address.
Second, the scope of consular protection should now be redefined to reflect international human rights law in situations where sending and receiving states have concurrent obligations under treaties which protect the most vulnerable migrants, including the Convention on the Rights of the Child or the Convention on the Elimination of all Discrimination Against Women. There must surely be a presumption that the actions of consuls should seek to protect the rights contained in a treaty to which both states are parties: thus, where a child is in need of protection, a consul should work with the national authorities of the receiving state to ensure that the child’s best interests are a primary consideration in any decision [CRC. Article 3]. This question did not arise when the consular protection regime was codified in the VCCR. But the subsequent development of international human rights law has created a need – long overdue – to clarify the relationship between these two bodies of international law. This is an important and interesting challenge if the promise of the Compact is to be realised.
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