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Introduction. Diplomacy and the Duty of Care

In: The Hague Journal of Diplomacy
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Jan Melissen Netherlands Institute of International Relations ‘Clingendael’ 2597 vh The Hague The Netherlands University of Antwerp 2000 Antwerp Belgium jmelissen@clingendael.org

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Maaike Okano-Heijmans Netherlands Institute of International Relations ‘Clingendael’ 2597 vh The Hague The Netherlands mheijmans@clingendael.org

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This special issue of The Hague Journal of Diplomacy on ‘Diplomacy and the Duty of Care’ discusses the multifaceted issue of government assistance to distressed national citizens abroad. Duty of care for nationals overseas is usually the primary responsibility of the ministry of foreign affairs, although other government actors play important roles in times of international crisis. The growth business of consular assistance accompanies the global trend of people travelling abroad for all sorts of reasons, as tourists, students, employees, humanitarians, expatriates seeking residence or retirement in other countries, individuals working in the security sector, and those acting outside the law. This special issue’s five articles have in common that that they look at overseas consular assistance as, broadly defined, a governmental security concern. Throughout history, travelling people have become trapped in different situations that have affected their personal well-being, varying from natural disasters to terrorism, or individual criminal acts affecting their physical security. The increased priority given to the protection of citizens may seem evident considering today’s global turbulence, but students of diplomacy have so far insufficiently developed the related research agenda. The articles in this special issue are part of a wider project that explores how practice of the duty of care — understood as a concept in the security realm — affects the nature of diplomacy and the practices of diplomats.1

One common denominator of these research papers is that they highlight societal dimensions of diplomacy and hence pose questions about state-society relations. Constrained by a Westphalian perspective wherein states are the key actors, and very much in accord with mainstream international relations research, the study of diplomacy has traditionally paid insufficient attention to the societal dimension in either the global environment or the domestic sphere. We can today readily observe how aspects of the duty of care highlight the greater domestic orientation of work in foreign ministries, which accentuates the politics of consular work. The various predicaments in which nationals abroad find themselves have increased the official concern for people in need. Apart from the obvious governmental and foreign ministry agenda for action, academic research is interested in unearthing how governments pursue their own political interests in exercising the duty of care vis-à-vis society. At the international level, the link between service-oriented tasks and day-to-day relations between states also reveals how political issues cannot be separated from consular work. In the society of states as a whole, increasing global economic activity and geopolitical rivalry — both accelerated by technological progress — are typically accompanied by greater demands on the duty of care. As the twentieth century amply demonstrated, revolution, intra-state conflict, war, and states quarrelling with one another in varying degrees short of armed conflict, have complicated the well-being of many people trapped outside their national territory.

Growing cross-border economic activity accompanying various industrial revolutions from the mid-eighteenth to the twenty-first century has resulted in a steep upward trend of consular care, even though there is a much longer history. Consular activity preceded industrialization, as well as the rise of the state system, foreign ministries, embassies and hence the formation of a professional cadre of diplomats. The international system of nearly 200 states and global society thriving on the forces of transnationalism have become intertwined, to the extent that consular and diplomatic practices can no longer be juxtaposed. It therefore makes sense to speak of consular diplomacy. The academic task at hand, however, is not just to map and relabel evolving practices, but to think through and theorize ‘reconceptualized’ consular diplomacy, and to break new ground in terms of empirical research.

Academic writings on all things consular have largely followed the greater pressures experienced by governments because of accelerated globalization. The changing duty of care as a core foreign ministry task has helped modify academic understanding of diplomacy at large, initially in a pretty straightforward sense. Building on legal literature and attention for consular work in practitioners’ handbooks, early twenty-first-century books and articles made the initial effort to fill the gap between the existing literature on diplomacy and its evolving practices.2 Students of diplomacy now benefit from a more systematic exposition of the historical evolution of consular work. We have gained a better picture of the immediate effects of consular tasks on the work processes of foreign ministries. Significant policy learning is triggered by twenty-first-century international crises, varying from environmental disasters to terrorist attacks, and by the growing salience in domestic politics of citizens’ security overseas. Rather than discussing consular affairs and diplomacy in isolation, more evidence now articulates how transnational consular challenges may involve (and at times complicate) inter-state collaboration. On another level, we see how private actors are becoming more visible in the largely public duty of care. To varying degrees, governments appeal to the companies’ responsibility for their employees abroad. The duty of care thus underlines a broader trend towards greater public-private collaboration in diplomacy. The literature on the consular dimension — as part of the work of diplomats beyond representation — helps us to take a wider perspective on diplomacy, which places more emphasis on it as a constitutive practice.3

Despite sweeping change, the legal framework provided by the 1963 Vienna Convention on Consular Relations (vccr) remains in place. The obstacles to legal change are formidable with the more demanding practice of consular services in the age of ubiquitous media and in an international environment that is more fragmented than in the 1960s. Foreign ministries are adapting, as they were not designed to meet the steep demands of today’s consular clients. Their experience on a day-to-day basis is of still catching up with the reality of the consular challenge, while part of the response to international crises lies within the mandate of other government departments. One international difficulty for reform that is often overlooked is that some countries are more reluctant than others to accept their obligations towards foreign citizens in trouble within their national territory, which is of course also enshrined within the vccr. Further complicating matters for those inclined towards reforming the legal international framework is that the distribution of duty-of-care responsibilities between government and the private sector is anything but clear. The workload of consular policy-makers is such that it is hard for many foreign ministries to develop meaningful long-term strategies. These various reasons explain governmental reluctance to bring multilateral agreements to address the consular agenda. Despite successful efforts at strengthening the legal international framework, such as in the Hague Conventions dealing with the rights of children and vulnerable persons, international collaboration on the duty of care remains largely hands-on and mostly takes place on the basis of pragmatic arrangements aimed at easing short-term pressures. These obstacles to legal reform influence this special issue’s practitioner author William Crosbie to suggest the development of a universal code of practice.

Avenues for Research

This special issue’s authors suggest various avenues for further research. By focusing on the foreign ministry and its embassies, for instance, Halvard Leira argues for learning from military studies, by making a case for in-depth analysis of so-called hardship posts and embassy security issues. Kristin Haugevik proposes wider empirical examination of whether more states are taking a decided ethical stance in the duty of care for their citizens, based on an enlightened understanding of their own identity and showing a preparedness to violate traditional diplomatic norms upholding the system of states. More citizen-centred diplomatic practice, whether consular assistance or public diplomacy, often runs into situations where upholding traditional diplomatic norms of state behaviour can be experienced as problematic. Nina Græger and Wrenn Lindgren suggest that embassy cooperation with receiving governments in international crisis situations deserves more attention, as is the case for the complex relationship between government and the private sector. Also in the domestic sphere, when the duty of care is inversed in terms of relations between governments and citizens, as Alexei Tsinovoi and Rebecca Adler-Nissen argue, new questions surface about the boundaries of political communities and the behaviour of citizens, whether or not extra-territorial. These are just some examples of conundrums for future academic work. There is more scope for original research, including the study of non-Western practices in the duty of care,4 examination of the nexus between the duty of care and diaspora diplomacy, assistance to nationals in the context of the war on terror, or the impact of the fourth technological revolution on issues of diplomacy and citizen security.

This special issue’s objectives are, then, to break new empirical ground, offer a conceptual lens for the study of consular assistance by introducing the concept of duty of care, develop theoretical tools that help us understand the political rationality underlying the duty of care and its practices, and to suggest alternatives for improving international collaboration on the duty of care within the existing legal framework. The remainder of this section elaborates on the broader trends that emerge from the various articles in this issue.

A common thread emerging from the analyses presented here is that the role of the state is growing and evolving in diverging directions. It extends to new societal domains, including terrorism and the ‘harnessing’ of globalization, and in doing so the state reaches beyond its own borders. Thus, while globalization has induced new limits on the power of central governments, it has simultaneously enlarged their assumed responsibilities, most visibly in the fields of conflict management and regarding their citizens’ well-being. This challenges the academic debates and neoliberal conceptualizations of the retreating state that emerged in the 1990s. Governments seek the help of partners in acting on their duty of care; foreign ministries reach out to growing numbers of actors to improve their capacity to give assistance. So far, however, debates on ‘government only’ consular assistance versus outsourcing and governments’ cooperation with other actors have insufficiently grasped the multifaceted practices and trends in this field. Several articles in this special issue help to fill this gap, with Leira taking on outsourcing to local actors; Græger and Lindgren looking at private companies; and Haugevik discussing the specific case of the role of private investigators in child abduction cases. In their theoretical contribution, Tsinovoi and Adler-Nissen point to the largely overlooked role of citizens as a resource for mobilization — a phenomenon that they refer to as the ‘inversion of the duty of care’. Here, states encourage citizens to take more responsibility by steering new citizen-based practices that help them to deliver care, for example by making data from difficult-to-reach crisis locations available through social media.

Actors’ New Roles and Systemic Adaptation

As well as governments, established and new players thus act on the duty of care. Some of these actors have a responsibility of their own: private companies have a duty of care to their employees travelling abroad; and travelling individuals have a responsibility to take care of themselves, including by purchasing insurance. When crises occur and these two primary lines of protection — self-help and, if applicable, assistance from the employer and insurance companies — fail, governments need to step in. Thanks to technological progress and because of globalization, the boundaries between the various roles (object for protection and caretaker) and responsibilities (caring and being a resource for mobilization) are becoming fluid. As Tsinovoi and Adler-Nissen argue, citizens are no longer simply passive recipients of protection, but also contribute to a government’s ability to provide such care. In a similar fashion, and as mentioned in most articles, private businesses may require government assistance to assist their employees in distress in extreme situations, and at the same time can assist the government in delivering on the duty of care. Separately, as Leira indicates, governments themselves also take up different — and sometimes conflicting — roles in the duty of care, by acting on the duty they owe to citizens as well as to their own personnel, who may also need protection. Touching on another duality, namely in governments’ roles, Haugevik discusses how states alternate between being a ‘caretaker’ and a ‘rescuer’ when providing duty of care. Specifically, in cases of parental child abduction, the state’s concern for a citizen child is pitted against its obligation to honour diplomatic conventions.

A third trend to be distilled from the articles in this special issue is the intensifying call for — and initial steps towards — updating the 1963 vccr ‘system’ and, in doing so, addressing the multilateral and individual levels of practice. The case for a systemic update is indeed the very essence of the argument proposed by William Crosbie, who calls for a more comprehensive framework to support consular relations. Although many practitioners and scholars recognize the substantial developments in international law and practice with respect to consular relations, few have been willing or able to embark on the daunting challenge of addressing the consequences of such change. Crosbie proposes a Model Consular Code that would supplement the vccr, in order to address operational policy issues that are not anticipated or covered by the vccr. Haugevik’s analysis suggests that parental child abduction across borders is one issue where an update of the multilateral framework would be meaningful, although she points to the more general Westphalian rule that ‘one state’s sovereign rights curb another’s ability to help citizens in trouble abroad’. Therefore, and as Crosbie proposes, updating the legal framework should build on relatively successful multilateral initiatives, such as the informal Global Consular Forum, where foreign ministries’ consular departments compare best practices and identify future challenges.

Widening Horizons

As well as recommending updating the legal framework, the analyses presented here propose that there is much to gain from more and deeper international cooperation among governments, especially before and during crises that involve citizens in foreign lands. The In Amenas and Fukushima crises, discussed by Græger and Lindgren, suggest that there is no single template for such cooperation, but that cooperation has to be tailored to the type of crisis. These crises required vastly different responses from the governments in the crisis countries, and they involved a different set and number of foreign individuals — and thus foreign ministries. This case study indicates one limitation of the analysis of duty of care in this special issue: the approaches and issues studied here are largely concerned with Western, or even European, governments, leaving unaddressed the question of how much these arguments extend to states other than those discussed explicitly or implicitly. Common challenges notwithstanding, clear differences exist between the approaches adopted in various countries and regions, such as Norway in Europe, and China and Japan in East Asia. One example is the extent to which the duty of care at the nexus of public and private-sector responsibility is being ‘privatized’ and ‘securitized’, with China and Japan displaying a greater degree of doing both compared to European governments. China and Japan invest more in broader and deeper links with the private sector, and are more inclined to link duty-of-care policies generally to anti-terrorism efforts. Consequently, growing duty-of-care challenges in hostile environments are spurring substantial changes in their broader foreign policies and long-held attitudes towards the principle of non-intervention and cooperation with foreign governments. Taking another example, strategies of ‘responsibilization’ find limited resonance in the Danish concept of corporate security, whereas the American, Chinese and Japanese corporate communities seem rather open towards government attempts to increase their responsibility in the duty of care.5 This all speaks to a broader point: sooner rather than later, and as much in its historical, contemporary or future orientation, the study of diplomacy will increasingly look at practices in the non-Western world, and the arguments for doing so present themselves.

Any reflection about consular diplomacy could start or conclude with the observation that interference in domestic and international politics has the potential to make consular acts a diplomatic concern.6 Domestic politics are even readily prioritized above effectiveness — both in terms of finance and cooperation. Several of the articles explore the domestic element in the duty of care, with Tsinovoi and Adler-Nissen discussing the willingness of citizens to assist governments, and Græger and Lindgren — as well as Haugevik — touching on public and media scrutiny. When a case becomes both a domestic and a bilateral diplomatic high-profile issue, (possible) criticism at home for neglecting duty of care is weighed against (possible) criticism by another state for being a rule-breaker. Haugevik suggests that a state’s eventual chosen course is likely to depend on which of these two norm violations is seen to pose the severest threat to its self-identity.

In the final analysis, individual preparedness is, of course, vital for diplomats operating in the realm of the duty of care. This requires governments to invest in their diplomats developing a particular set of skills. Traditional, representational diplomacy may be less than adequate for keeping pace with new global patterns of citizen movements. More important than representation and governing skills, an outstanding consular diplomat is one who can work with and through other actors in an increasingly citizen-centric transnational environment. For academics, broader reflection is in order on how that environment’s evolution impacts upon government action, the expansion of domestic politics beyond state borders, underlying political rationalities driving government action, as well as international relationships in a less state-based and less Western world. In this expanding space, the duty of care is a central concern and a core function for foreign ministries. The duty of care has become progressively intertwined with politics and diplomacy and, as this special issue of The Hague Journal of Diplomacy shows, it is illuminating to examine this field of activity as a security matter.

1

This work was supported by the Research Council of Norway under grant number 238066/H20. For other output in this ongoing project, see Nina Græger and Halvard Leira, The State’s Duty of Care in International Relations, paper for the isa Annual Convention in Atlanta, ga, 2016; Jan Melissen and Matthew-Caesar-Gordon, ‘Digital Diplomacy and the Securing of Nationals in a Citizen-Centric World’, Global Affairs, vol. 3, no. 2 (2016), 10 pp.; Maaike Okano-Heijmans and Matthew Caesar-Gordon, ‘Protecting the Worker-Citizen Abroad: Duty of Care Beyond the State?’, Global Affairs, vol. 3, no. 3 (2016), 11 pp.

2

See, for instance, the essays in Jan Melissen and Ana Mar Fernández (eds), Consular Affairs and Diplomacy (Leiden: Martinus Nijhoff, 2011); Maaike Okano-Heijmans, ‘Consular Affairs and Diplomacy’, in Andrew F. Cooper, Jorge Heine and Ramesh Thakur (eds), The Oxford Handbook of Modern Diplomacy (Oxford: Oxford University Press, 2013); Karen Tindall, ‘Governments’ Ability to Assist Nationals in Disasters Abroad: What Do We Know about Consular Emergency Management?’, Journal of Contingencies and Crisis Management, vol. 20, no. 2 (2012), pp. 102–114; and a practitioner’s essay by Daniel Hernandez Joseph, ‘Mexico’s Concentration on Consular Services in the United States’, The Hague Journal of Diplomacy, vol. 7, no. 2 (2012), pp. 227–236.

3

For a definition, see Ole Jacob Sending, Vincent Pouliot and Iver B. Neumann, Diplomacy and the Making of World Politics (Cambridge: Cambridge University Press, 2015), pp. 5–6.

4

Xia Liping, ‘An Analysis of China’s Consular Protection Practice in Africa’, African-East Asian Affairs, no. 3 (September 2013); Jonas Parello-Plesner and Mathieu Duchâtel, China’s Strong Arm: Protecting Citizens and Assets Abroad, Adelphi Paper no. 451 (2015); Daniel Houpt, ‘Assessing China’s Response Options to Kidnappings Abroad’, China Brief, vol. 12, no. 10 (2012); United Nations, Sendai Framework for Disaster Risk Reduction 2015–2030 (Geneva: United Nations Office for Disaster Risk Reduction, 2015), available online at http://www.unisdr.org/files/43291_sendaiframeworkfordrren; Gary Li, ‘The Security Conundrum for Chinese Overseas Investment’ (3 December 2015), available online at http://www.apcoworldwide.com/blog/detail/apcoforum/2015/12/04/the-security-conundrum-for-chinese-overseas-investment; Lauren McKee, ‘Is the ISIS Hostage Crisis Japan’s 9/11?’, Global Asia Forum (27 February 2015), available online at https://www.globalasia.org/is-the-isis-hostage-crisis-japans-911/; and Hideshi Futori, Japan’s Disaster Relief Diplomacy: Fostering Military Cooperation in Asia (Washington, dc: East-West Center, May 2013), available online at http://www.eastwestcenter.org/publications/japan%E2%80%99s-disaster-relief-diplomacy-fostering-military-cooperation-in-asia. Also useful in this context is Celeste González, Andrea Martínez and Julia Purcell, Global Consular Forum 2015, report of the conference held at Cuernavaca, Mexico, from 26–28 May 2015, WP1381, available online at https://www.wiltonpark.org.uk/wp-content/uploads/WP1381-Report.pdf.

5

Karen Lund Petersen, Corporate Risk and National Security Redefined (Abingdon: Routledge, 2011), pp. 118–119.

6

For this argument, see Okano-Heijmans, ‘Consular Affairs and Diplomacy’.

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