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A Consular Code to Supplement the vccr

In: The Hague Journal of Diplomacy
Author:
William Crosbie Institute on Governance Ottawa, on K1N 1J4 Canada

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Summary

Consular relations have been recognized as an integral part of people-to-people contact ‘since ancient times’, as stated in the preamble to the Vienna Convention on Consular Relations, the 1967 codification of existing practice in consular relations. This article questions whether the legal and policy framework reflected in the Convention remains relevant in the twenty-first century as the demand for consular services has grown. It describes how international law and practice have evolved since 1967 with respect to consular relations, and argues that the time is now ripe to promote a more comprehensive international framework to support consular relations, which could be incorporated into a Model Consular Code (‘the Code’), which would build on existing successful initiatives to address problems confronting consular clients. The article focuses on the range of services provided by consular officers for their citizens abroad, whether routine or complex.

Introduction

Consular relations have been recognized as an integral element in people-to-people contact ‘since ancient times’. These words are found in the preamble to the Vienna Convention on Consular Relations (vccr, or the Convention), which came into force in 1967. The Convention was largely a codification of existing practice in consular relations, although it specifically notes that the vccr does not replace customary international law. Does the legal and policy framework reflected in the Convention remain relevant in the twenty-first century?

This article will describe how international law and practice have evolved since 1967 with respect to consular relations. It will argue that the time is now ripe to recognize these developments and to promote a more comprehensive international framework to support consular relations. Such a framework would supplement and not replace the vccr. The framework could be incorporated into a Model Consular Code (‘the Code’).

This proposal would not open up the Convention itself for amendment. It is remarkable that 179 United Nations (un) member states have signed the Convention, of which only four have failed to ratify it. From a practitioner’s perspective, I fear that opening up the Convention would break this consensus. The current political trend in many countries is running against international rule-making and towards stronger national sovereignty. Rather, my proposal would seek to build on what have been relatively successful initiatives to address the particular problems that confront consular clients.

Why address issues in consular relations now? Is there a problem that needs to be fixed?

Between 2008 and 2015 I saw how demand for consular services grew as more people chose to work, study, travel, marry, retire and volunteer in other countries. I noted how governments responded to these demands by negotiating agreements and conventions that address the specific problems encountered by their citizens when dealing across international borders. In discussions with other foreign ministries from every continent and countries of all sizes, I learned that the challenges for consular officials are widely shared.

This practitioner’s perspective will focus on the range of services provided by consular officers for their citizens abroad. It will not include services such as visas and immigration documents for foreign nationals. I use the terms consular services, consular affairs and consular relations interchangeably. The vccr refers to consular relations and describes them as ‘helping and assisting nationals, both individuals and bodies corporate, of the sending state’. Consular work can broadly be classed as routine or complex. Routine services tend to be about volume and the general public, such as providing travel and identity documents, general information for the travelling public and travel advice. Complex consular cases usually involve vulnerable persons, adults or children, and include clients subject to arrest or detention, severe medical conditions, cross-border child custody disputes, murder or suspicious deaths, mental incapacitation, forced marriage, natural disasters or conflicts requiring evacuation, terrorist attacks, and abandoned or abused children.

The vccr and Recent Developments in Consular Affairs

The vccr is almost a document with universal coverage, as noted above. In fact, only twelve un member states have neither signed nor ratified the Convention. The Convention consists of 79 articles. These articles deal with the role and functions, rights and obligations, privileges and immunities of consular staff. Article 5 describes ‘Consular Functions’ in general terms. These include ‘safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State’. Few articles spell out how these functions are to be performed or detail rights and obligations associated with specific situations. The exception is article 36, with respect to persons arrested and detained, which defines rights of access and communication. The vccr’s language reflects the historic nature of consular relations, which were preoccupied with the needs of commerce and commercial travellers, carried on ships. If we want to know how consular services are provided today, we have to look beyond the vccr.

What have been the developments of the past 50 years? One development has been the growth of specialized trade-promotion agencies to look after the needs of the commercial traveller — the original consular client. More germane to this article has been the increase in the size and complexity of the consular clientele. Our globalized world is manifest every day in patterns of travel and life that we now take for granted. Security concerns are global in their reach. More foreign ministries today are concerned with complex consular challenges: cross-border family matters; terrorist kidnappings and attacks; undocumented migrant workers; incapacitated adults; unjust arrests; medical tourism; and evacuations caused by crises. Foreign Ministries are often ill-equipped to find solutions, to prevent foreseeable threats, to mitigate risks and to insist on remedies for recurring problems.

However, some initiatives have helped consular officials in foreign ministries to do their job more effectively. Many governments have entered into bilateral consular agreements that specify rights and obligations in dealing with problems not addressed in the vccr, such as the growing practice of citizens with more than one nationality. Some provide for collaboration in a crisis involving citizens abroad. Some accept additional obligations when it comes to a foreign national who is arrested or detained.

In the multilateral arena, The Hague Conference provides a forum in which nations have negotiated new conventions to deal with the practical problems arising from our globalized world. For example, Canada played a critical role in negotiations on the first convention dealing with the growing problem of cross-border child abduction: the 1980 Hague Child Abduction Convention. The 1996 Hague Child Protection Convention gives consular officials additional means to assist children in need of protection. The Apostille Convention simplifies the recognition of foreign legal documents, a practical way to help businesses and private citizens in conducting relations across borders.

Beyond these legal agreements, in terms of practice, the ways in which foreign ministries operate abroad reflect the use of technology and the imperative to reduce costs. There is more reliance on locally engaged nationals to provide services, as opposed to foreign diplomats. In more countries, foreign ministries rely on one another to provide services to citizens from other nationalities. Technology provides the means to provide more services from regional centres or from your own territory. At the same time, social media and communications technology apply pressure on foreign ministries to respond more promptly (some would say instantaneously) to crises or complex consular cases. Social media gives consular clients and their loved ones the means to attract attention when they need help abroad, sometimes diverting resources to the loudest voice rather than the most in need.

The Duty of Care

These developments are changing public expectations of consular services. Arguably, they are also creating a duty of care towards consular clients that was previously inchoate, or are changing the standard of duty of care that foreign ministries were already acknowledged to owe to their citizens. In Canada, for example, consular services are the prerogative of the Crown. The Crown has no legal obligation to assist its citizens in distress abroad. While this has been upheld by the courts as a legal matter, Canadian governments will rarely limit support to Canadians requiring assistance abroad. Canada’s foreign ministry — Global Affairs Canada — has joined others in publishing a Consular Charter, which describes what services will and will not be provided. Advocates have recently argued for legislation that would give Canadians a legal right to consular support. Such legislation exists in other countries where consular support is mandated, sometimes even by the constitution.

In response to criticism of the handling of consular cases during Canada’s 2006–2015 Conservative government, the House of Commons Committee of Foreign Affairs announced that it would lead an inquiry into Canada’s consular services. The focus of criticism has been on the Canadian government’s support, or perceived lack of support, for Canadians imprisoned abroad in high-profile and politically charged circumstances. This could be an opportunity to examine the full range of consular services and to bring attention to the systemic challenges that bedevil attempts to assist consular clients.

Another impetus driving questions of duty of care has been the growing litigation in many countries with respect to how consular support has been provided. This litigation reflects frustration as much as rising expectations, and the resulting decisions may create new duty-of-care obligations.

In an era when terrorist attacks have taken the lives of tourists, volunteers, international aid workers and other civilians on all continents, in places previously regarded as safe, more questions are asked about how foreign ministries are exercising their duty of care, not only to their own staff but also to their nationals residing or travelling in countries where attacks take place. Foreign ministries have access to intelligence or privileged sources of information that may give them warning of impending or possible attacks. The us State Department is subject to the ‘no double standard’ law, which requires that any security warning that is given to American officials abroad is also made known to the American public. One can expect pressure on all foreign ministries to demonstrate that they are following the same principle when it comes to their nationals.

Foreign ministries may have the primary responsibility for consular services, as recognized in the vccr, but they also work closely with the private sector. The marketplace is responding to the needs of consular clients. Financial service companies promote their ability to assist subscribers to their credit cards. The travel and hospitality industry depends on providing safe services. The travel and medical insurance industry offers more products that are geared towards consular clients. There is a direct link to the role of foreign ministries in this regard, as the official travel advice and warnings published by foreign ministries can trigger the right to make an insurance claim. Telecom companies provide public service information on how to contact consular officials when abroad. In natural disasters, telecom providers and social media companies actively solicit information from their customers who may be affected. Retirement communities in foreign destinations may advertise services to attract residents. Medical tourism is increasing, which should lead to pressure on service providers and governments to develop better regulation specifically for foreign patients.

Outside the for-profit marketplace, volunteer and non-profit groups offer services such as legal aid, prisoner support, women’s shelters, child protection and mediation in cross-border custody disputes. In some countries, these services are subsidized by foreign ministries. This fits the growing trend of consular services focusing on the most vulnerable clients — those with neither the means nor capacity to look after their own interests. Foreign ministries rely on service providers with the necessary expertise and experience.

With the exception of the subsidized services noted in the paragraph above, it is notable that in many countries the role of foreign ministries in fostering the development of services for consular clients has been modest. Foreign ministries have in rare circumstances worked with domestic, private service providers to coordinate in improving services for consular clients. Rather, private-sector suppliers and government agencies have tended to collaborate in particular situations and crises. Why the lack of leadership? I think there are several reasons.

The vccr and the Limited Mandate of Foreign Ministries

Consular relations, and the rights and obligations associated with them as set out in the vccr, do not in themselves impose new obligations except in a few limited circumstances (such as arrest and detention). The vccr reflects the origins of consular relations — catering to the needs of persons in commerce, trade and business — and not the needs of over one billion people who regularly travel and live in a globalized world. The vccr states explicitly in numerous articles that national (or local) law applies equally to foreigners and nationals. Moreover, domestic law is not the domain of foreign ministries.

Generally, there is little recognition of the consular agenda. The vccr is not widely known within governments and there is no standing international forum for the discussion of consular matters.

Consular clients do not form an organized constituency. In rare circumstances they may come together and apply pressure on a government through sheer numbers during a crisis, through clever media, or through political attention usually driven by the media. A heart-rendering personal tragedy, a politically charged trial, or a child abducted to a foreign country — these cases can galvanize national forces, but the attention is sporadic and short-lived. Few stop to ask whether there are underlying causes of a given case — whether there are initiatives that will reduce the likelihood of repeated cases.

Historically, consular services in many foreign ministries have lacked resources and profile. Consular relations have not engaged the best minds of the diplomatic world; they are seen as far removed from ‘high politics’ and great affairs of state, except in rare circumstances. They are operational. Little effort has been spent on the international legal and policy framework that underpins consular work.

Foreign ministries do not usually have the mandate to address what may be the cause of a consular case or what may provide the solution to systemic problems. For example, cases of arrest and detention involve state actors that are often not involved in international relations. Security agencies, police forces and intelligence services pursue their own mandates and are often not responsive to consular officials — whether in their own national government or those representing the foreign accused. The Hague Conventions are in most instances the responsibility of justice officials. They are invariably a minor component of national justice mandates and the relevant officials lack resources and political support to tackle problems that affect only a small proportion of the electorate.

Foreign Ministries as Catalysts

A critical step to improving consular services worldwide is to raise the profile of the vccr and of the broad consular agenda that implicates millions of citizens engaged in cross-border activities. Foreign ministries can play a catalyst role in energizing all of the actors — governmental and non-governmental, private companies and international organizations — in support of solutions to recurring consular problems. For example, making relevant Hague Conventions truly universal in scope and effective in operation requires a level of commitment that is lacking today. The number of cross-border child custody disputes is increasing and, given the notable absence of countries with Sharia legal systems as signatories to the Hague Conventions, more parents and children will be without recourse to a viable process for resolution. There has never been a greater need to advance the mission of the Hague Conference ‘to work for the progressive unification of the rules of private international law’, and consular clients would be major beneficiaries.

It has been 50 years since governments collectively focused on the consular agenda. Many more foreign ministries are grappling with the consular challenge. As noted above, there have been numerous positive developments in law and practice that deserve greater recognition and replication. For example, through innovative policies, there have been some remarkable advances in the ways in which migrant workers can access the formal economy and contribute securely to the remittance streams that are so vital to many economies. On the other hand, as terrorist threats have proliferated and innocent civilians travelling and living abroad become victims, greater collaboration among foreign ministries and other departments and government agencies is required to provide relevant advice on safe and secure travel.

In the interest of developing norms and values on human rights of wide application, consular relations can play a role. The vccr states that with one exception (access to and communication with arrested or detained citizens), the right to provide consular services by the sending state is always subject to local laws and regulations. That said, the Convention does recognize the general right of the sending state to assist and the obligation of the receiving state to permit that assistance. Since 1967, we have seen the adoption of normative conventions and agreements by many states and regional organizations in areas relevant to consular relations: protection of children and the vulnerable; humane treatment in prisons and detention centres; access to due process; and the elimination of discrimination against women, etc. Combined with the rights and obligations of the vccr, consular officials can bring attention to the treatment of those incarcerated abroad, to due process or the lack thereof, and to the standard of care in the local jurisdiction. The consular official can invoke the normative treaties and conventions to which the local government is a party. At the same time, however, international attention can cause the spotlight to shine on the quality of justice to which local nationals are subject.

Towards a Model Consular Code

The proposal for a Model Consular Code is that interested governments would identify in an agreement a range of commitments to supplement the vccr. Some could deal with operational and policy issues that arise in the context of modern delivery mechanisms for consular services and that were not anticipated or covered by the vccr. Some have been addressed in bilateral consular agreements, including issues such as the right of locally-engaged embassy staff to provide consular services to a foreign prisoner and the treatment of a person with more than one nationality.

The Code could enshrine commitments to sign onto relevant Hague Conventions, such as those dealing with children and vulnerable persons. It might clarify terms in the vccr that are vague or open to wide interpretation (such as what does ‘without delay’ mean for access and communication in today’s world). It could reference normative agreements and conventions that are relevant to the provision of consular services. It might elaborate about commitments to work together in a crisis involving foreign nationals abroad. The Code might provide for a regular forum to discuss consular issues or complex consular cases involving multiple government departments.

The Code would be voluntary. Governments could sign onto all or a selection of chapters depending on their consular clientele. For example, countries with large flows of migrant workers would have an interest in a chapter dealing with issues specific to migrant workers. The Code, in whole or part, could be incorporated in bilateral legal agreements or a group of governments might agree to it.

Why propose a code if bilateral agreements are working? Bilateral agreements are inherently less effective than ones with wider membership. They rely exclusively on bilateral relationships for their success. The interest of the international community cannot be invoked when one party fails to live up to its commitments. Bilateral agreements are less influential in shaping the international agenda, in setting examples, or developing standards that are relevant to the wider world.

Why propose a voluntary code and not something binding? The consular community represented by foreign ministries has only recently started to build awareness of shared interests, common challenges, best practices and opportunities for collaboration. Much work needs to be done even to achieve a voluntary code.

In terms of process, there is a recently created informal group called the Global Consular Forum (gcf). Through a steering committee with representatives of Australia, Canada, Korea, Mexico, the Netherlands, Turkey, United Arab Emirates and the United Kingdom, senior consular officials from some 30 foreign ministries have met three times (in 2013 in the United Kingdom, in 2015 in Mexico and in 2016 in the Republic of Korea) to discuss shared interests, best practices and collaboration. As a broadly representative group of countries of all sizes and from all continents and levels of development, it is a useful forum for bringing together a larger group to review these issues. The idea of a code could be discussed in that forum, with provision for any interested foreign ministry to participate.

In addition to the work of consular officials, there is also, I believe, an opportunity for other actors to play a seminal role in advancing a modern consular agenda.

The private sector, through standards-setting associations, industry leaders and regulators, could bring attention to best practices in creating a secure and safe environment for consular clients, whether tourists, migrant workers, retirees, or students, etc. Better collaboration with foreign ministries that provide official travel advice can improve the exchange of information on which travellers rely.

Academia and research institutes can provide a deeper understanding of the nature and extent of the consular challenge. Possible research topics include analysis of trends in consular caseloads, of systemic issues, of cultural and political impediments to making the Hague Conventions universal in scope, of the impact of social media, and of the complications of security-focused measures on consular clients.

In terms of international organizations, the un World Tourism Organization (unwto) might play an important convening role in bringing together all those who are part of the ‘consular relations’ community. The mandate of the unwto is to promote ‘responsible, sustainable and universally accessible tourism’. It brings together 157 countries and hundreds of private-sector partners. All foreign ministries’ consular services are logical collaborators with the unwto and its network. As international travel has grown exponentially, what was conceived as a specific sector (tourism) is now part of a more complex web of laws, policies, security concerns and economic opportunities.

My last point is about reciprocity. This has always been a fundamental principle in international relations. The fluid movement of persons for legitimate reasons, which promotes international comity, will be at risk if a robust and relevant consular framework is not maintained. Through a vehicle such as a Model Consular Code, governments can set expectations for treatment that inspire respect and reciprocal treatment. Ultimately these cannot be enforced through legislation. As always, they will depend on goodwill, transparent processes and accurate information.

Conclusion

Finding solutions depends, first, on recognition that there is a problem. For foreign ministries, creating that recognition among themselves — through initiatives such as the Global Consular Forum — begins the process of identifying common challenges. What we have learned through the Forum is that individually, or sometimes in smaller coalitions, foreign ministries have come up with solutions. However, in so far as the solutions (such as the Hague Conventions) are not of wider application, the consular clients will continue to be without recourse. Collectively, all foreign ministries depend on their counterparts being able to persuade other organs of government to play their part in honouring the vccr and other consular agreements. Being a champion within government for consular clients and a catalyst for action with the private sector, the foreign ministry can demonstrate its vital role in the people-to-people relationships that gird our globe. Rallying around the concept of a Model Consular Code, foreign ministries could be a champion for consular clients on the international stage.

William Crosbie is a former Canadian ambassador who retired from the Foreign Ministry in 2015. He was Assistant Deputy Minister for Consular, Security and Legal, Global Affairs Canada, from 2011–2015; Canadian Ambassador to Afghanistan from 2009–2011; Director General, North America, from 2004–2008; Minister Counsellor for Trade and Economic Policy, Embassy of Canada in Washington, dc, from 2000–2004; and a trade negotiator for Canada (at nafta, the wto, oecd, wipo, apec and ftaa). In 2017 he was responsible for organizing Canada’s hosting of the un Peacekeeping Defence Ministerial conference, a pledging conference that brought together 80 un member states.

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