Consular and diplomatic protection

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CONSULAR PROTECTION AND DIPLOMATIC PROTECTION:
THE FUNDAMENTAL RIGHT AND OBLIGATION OF STATES
TO PROTECT MIGRANT WORKERS
Seminar/Workshop on Capacity Building of Consular Authorities for the Protection of the
Labour Rights of Migrant Workers
Managua, Nicaragua, May 3 & 4, 2012
Alexandra Bonnie
Presentation
Objective: To describe the obligations and powers of States in terms of
consular and diplomatic protection and links with the obligation of
protecting the labour rights of their citizens.
I.
Protecting the rights of migrant workers abroad: An Obligation of States
II.
Diplomatic protection: Definition and mechanisms for protecting the rights of
migrant workers
I
III.
Consular protection: Definition and mechanisms for protecting the rights of
migrant workers
IV. Mechanisms and instruments for protecting the rights of migrant workers
from a broader concept of consular assistance
2
I.
Protecting the labour rights of national
citizens abroad: An obligation of States
 Migration: A component in international relations.
 The Constitution establishes an obligation of the State, irrespective of
the place of residence.
 The right to provide assistance to citizens abroad is recognized in
international law.
 “Migrant workers and their families shall have the right to protection
and assistance by consular or diplomatic authorities from their State
of origin or from the State representing the interests of the State of
origin, in all cases when the rights recognized in this Convention are
infringed”. International Convention on the Protection of the Rights of All Migrant
Workers and their Families, 1990
3
II. Diplomatic Protection
“Diplomatic protection consists of the invocation by a State,
through diplomatic actions or through other diplomatic means,
of the responsibility of another State for harm caused due to
an internationally wrongful act of that State to an individual or
legal entity that is a national of the first State, with the aim of
giving effect to this responsibility.”
(International Law Commission, Project of Articles on Diplomatic
Protection, Article1)
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II. Diplomatic Protection
Diplomatic Protection
Consular Assistance
Vienna Convention on Consular Relations (1961)
Vienna Convention on Consular Relations (1963)
Infringing International Law
Infringing International Law NOT NECESSARY
Inter-State / International Sphere
Interest of the State
Acting within the Framework of the Legal System of
the Country of Destination
Interest of the Individual
Of a Compensatory Nature
Protection against an Illegal Act
Political Officers
Non-political Officers
Of a Solemn Nature
A Practical Means of Protection
5
III. Consular Protection
 Vienna Convention on Consular Relations, Article 5
a
b
f
g
• Protecting the interests of the State of origin and its nationals
• Providing aid and assistance to nationals of the State of origin
• Acting as a notary, an officer of the civil registry, and in similar roles and performing
other functions of an administrative nature
• Protecting the interests of nationals in cases of succession due to death
h
• Protecting the interests of boys, girls, and adolescents and other persons that are
disabled
i
• Representing nationals or taking appropriate actions to represent them before courts
and other authorities of the receiving State with the aim of achieving that provisional
actions are implemented to preserve the rights of these nationals
m
• Exercising other functions assigned by the sending State to the consular office
6
III. Consular Protection
Obligations and rights of the migrant, the country of origin,
and the country of destination within the context of arrest,
detention, and criminal procedures:
The right to
information about
consular assistance
The right to
consular
communication
The right to
consular notification
The right to
consular assistance
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III. Consular Protection
Additional Considerations:
 Advisory Opinion of CIDH OC-16/99 on “The right to
information about consular assistance within the framework of
the guarantees of the legal process”;
 Recognizing the centrality of human rights;
 Obligations and rights mentioned in the 1990 Convention,
Article 16.7;
 “The migration status of a person shall not be, in any way,
justification to deprive this person of the enjoyment of his/her
human rights, including labour rights” Item 134, Advisory Opinion OC18/03 “Legal status and rights of undocumented migrants”, CIDH.
8
IV. Mechanisms to Protect the Rights
of Migrant Workers
Two different types of actions:
 Relating to the organization of consular missions
 Joint actions between these missions and civil society
Beyond the traditional inter-State concept: Protecting and
promoting the human rights of migrant workers
“States Parties shall facilitate, as appropriate, adequate consular services
and other services required to meet the social, cultural, and other needs
of migrant workers and their families.”
(Article 65.2, 1990 Convention)
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IV. Mechanisms to Protect the Rights
of Migrant Workers
 Negotiating in favour or against certain administrative
actions or legislation proposals;
 Representing migrant workers in negotiations with their
main employers;
 Marketing efforts and identification of employment
opportunities;
 Promoting good relations in labour matters with the host
country;
 Providing assistance to recover income or other benefits;
 Ensuring that persons with health issues receive medical
care or assistance to return to their country of origin.
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IV. Mechanisms to Protect the Rights
of Migrant Workers
Training consular officers on the labour rights of
migrant workers
Data collection: An observatory recording and
documenting cases of violations of rights
A network of attorneys with free legal aid
Cooperation links with local NGOs and diasporas
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Conclusions
 States are under the obligation to protect the rights of migrant workers
abroad. This obligation and right is established in international law (Vienna
Convention, 1990 Convention) and, above all, in the Constitution of States.
 Due to the difference between diplomatic protection (of a more political
and solemn nature) and consular protection, consular protection
mechanisms for migrant workers have been emphasised.
 Traditional functions or obligations exist; however, they tend to be
disregarded (Article 5, Article 36 of the Vienna Convention). In addition,
new mechanisms exist seeking alliances with other sectors (diasporas,
attorneys, etc.).
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THANK YOU
FOR YOUR ATTENTION
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