A right to consular assistance: Some general observations

April 1st, 2019
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In June 2018, the media was abuzz about 51 young South Africans who had been detained by the authorities in China after having found themselves embroiled in a visa scam. The group had seemingly been enticed by an agent to travel to China on study visas while planning to work as English teachers. As such an arrangement contravened the immigration laws of the People’s Republic of China, they were arrested and detained. The South African Embassy in Beijing intervened and provided them with consular assistance. Following subsequent ministerial intercession, they were all released and were able to return home safely a few days later. It is against this setting that I write this article, my main aim being to examine the legal basis, nature and extent of consular assistance, which our embassies, high commissions and consulates-general (missions) render on a daily basis to our nationals abroad.

The Constitution, the foundation of our law, provides in s 232 that ‘[c]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.’ Since the Vienna Convention on Consular Relations of 1963 (the Convention) is a multilateral treaty that codifies consular law, it is advisable to start here. The Convention has been incorporated into our domestic law by virtue of s 2(1) of the Diplomatic Immunities and Privileges Act 37 of 2001.

Consular functions

Article 5 of the Convention sets out what consular functions consist of and they include a variety of essential services that ensure the protection of the interests of South Africa (SA) and its nationals at the most fundamental level. The list of 12 functions is, however, not exclusive, since paragraph (m) of art 5 authorises consular officers (consuls) to perform any other functions entrusted to them by the sending state and which are not prohibited by the receiving state (see LT Lee and J Quigley Consular Law and Practice 3ed (Oxford University Press 2008) at 110). Consuls are mostly appointed by sending states in order ‘to protect the practical, legal, and commercial interests of its own nationals in … [the receiving state], and their contacts for this purpose with the host State are with regional, local, or police authorities rather than with the ministry of foreign affairs or other departments of central government’ (see I Roberts (ed) Satow’s Diplomatic Practice 7ed (Oxford University Press 2016, Kindle Edition) at 120). Consuls have thus ‘become closely assimilated to diplomats in the manner of their appointment and in many of the functions they perform, though not in the methods whereby they carry out these functions’ (Roberts (op cit)).

Although I am in essence dealing here with consuls and their activities, it is worth mentioning that diplomatic agents are in terms of art 3.2 of the Vienna Convention on Diplomatic Relations of 1961 permitted to perform consular functions. It follows that diplomatic agents, attached to our missions abroad, will be able to perform consular functions where SA does not also have consular posts elsewhere in that particular country. For more on the difference between the various categories of diplomats, see Riaan de Jager ‘Diplomatic immunity: Its nature, effects and implications’ 2018 (July) DR 26.

Protection of nationals

For purposes of this article, my main focus will be on South African (SA) nationals who are arrested or detained abroad and in need of assistance and protection. ‘[P]rotecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law’ in terms of art 5(a) of the Convention is the most important of all the functions of a consul. ‘Protection may involve assisting or repatriating the destitute and victims of robbery, … visiting nationals in hospital if they are injured or become ill on holiday, helping them with their arrangements, and tracing the relatives of victims of an air disaster, storm, or flood in the receiving State’ (Roberts (op cit) at 131-2). Consuls must, however, be cautious when rendering such assistance and protection, as they cannot transgress local law or interfere in the internal affairs of the receiving state (art 55.1).

Sending states may entrust a consular post established in a particular state with the exercise of consular functions in a third state, unless there is express objection by one of the states concerned (art 7). Moreover, it is common practice among states to provide consular services on behalf of another where one maintains a consular post while the other does not (art 8).

The protection of nationals, however, raises a number of legal questions, one of which, is a receiving state’s obligation to permit such protection. A receiving state must allow a consul to act on behalf of the sending state’s nationals and this obligation has long been established (Lee and Quigley (op cit) at 116 and 124). For a sending state’s national, who desires protection, consuls are widely regarded as being under an obligation to provide it and states have often characterised consular services as being owed to their nationals (Lee and Quigley (op cit) at 131). However, a consul will not be entitled to protect a national who rejects such protection for whatever reason (Lee and Quigley (op cit)).

Consular protection versus diplomatic protection

Granted that diplomatic protection falls outside the scope of this article, it is noteworthy that a clear distinction must be drawn between consular protection and diplomatic protection although the two may be exercised successively or even on occasion simultaneously in respect of the same events.

States have a right to exercise diplomatic protection on behalf of their nationals although they are not obliged to do so (Kaunda and Others v President of the RSA and Others (2) 2004 (10) BCLR 1009 (CC) at para 23 and 236; and  J Dugard, DL Bethlehem, M du Plessis and A Katz International Law: A South African Perspective (Cape Town: Juta 2005) at 290). Before a state may exercise its right of diplomatic protection of its national, it is essential that the national must have exhausted all available legal remedies before the judicial or administrative courts or bodies of the state alleged to be responsible (Roberts (op cit) at 145; and Dugard (op cit) at 292). The rules form part of the international law on state responsibility (E Denza Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations 4ed (Oxford University Press 2016, Kindle Edition) at 36).

Regarding consular protection, its primary purpose is to assist nationals in the pursuit of local remedies, whether with the local authorities or with prison or judicial bodies or to assist with personal matters.

Nationals charged with criminal offences

A major protective function of a consul is to communicate with nationals who are in pre-trial detention on a criminal charge or who have been sentenced to prison after being convicted. This function has assumed growing importance as a result of the increase in travel for employment, business and pleasure. Drug offences account for many arrests of nationals.

Article 36.1 of the Convention is of particular importance here. The International Court of Justice (ICJ) in LaGrand (Germany v United States of America) (ICJ Reports 2001, p 466)p 492 ruled (at para 74) that art 36.1 ‘establishes an interrelated regime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection: The right of communication and access [art 36.1(a)]. This clause is followed by the provision which spells out the modalities of consular notification [art 36.1(b)]. Finally [art 36.1(c)], sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving state’. This interpretation of art 36.1 was confirmed by the ICJ in a subsequent judgment in the Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America) (ICJ Reports 2004, p. 12) p 43 at para 61. Sending states will, for all practical purposes, be prevented from exercising their rights under art 36.1 if they are unaware of the detention of their nationals due to the failure by receiving states to provide the requisite consular notification without delay (the Avena case (op cit)).

In the Avena case, the ICJ also held that receiving states are under an obligation to provide consular information pursuant to art 36.1(b) of the Convention in respect of foreign nationals detained by the former. Moreover, the court ruled that the phrase ‘without delay’ in art 36.1(b) should be interpreted to mean that there is an obligation on a receiving state to provide consular information as soon as it realises that the arrested person is a foreign national or that there are grounds for thinking that he is probably a foreign national (at paras 87 and 88).

Dual nationality

Consular protection is based on the status of the individual requiring protection as a national of the sending state. If there is uncertainty regarding the individual’s nationality status or if the individual is a national of more than one state, difficulties could arise. The Convention does not, however, address this issue and the matter is thus left to general international law (Lee and Quigley (op cit) at 125) and the practice of individual states.

Some sending states endeavour to protect individuals in this situation and seek to provide protection, although the receiving state may reject a consul’s efforts, in particular if the individual is resident in the receiving state (Lee and Quigley (op cit)). International practice, however, varies in this respect.

A pertinent example worth mentioning is when the Egyptian authorities arrested and detained Sheikh Abdul Salaam Bassiouni, a dual South African-Egyptian national, in December 2014 on unspecified terrorism charges. The sheikh travelled to Egypt to attend his daughter’s engagement celebrations. In an attempt to gain access to Dr Bassiouni to provide him with consular assistance, the South African Embassy in Cairo addressed various diplomatic notes to the Egyptian Foreign Ministry. These requests for access were, however, denied by Egypt based on the fact that Dr Bassiouni’s SA nationality was in terms of Egyptian law not deemed relevant.

Permanent residents

Consular protection is also sometimes extended to permanent residents. Although the legal basis for it is uncertain, protection activity for a permanent resident is typically confined to inquiries and expressions of concern, especially if the country of which they are nationals declines to afford them assistance and protection (Lee and Quigley (op cit) at 203). Receiving states may under such circumstances allow such provision of protection in the absence of objection by the state of nationality (Lee and Quigley (op cit)  at 204).

Conclusion

It is trite that nationals have a right to consular assistance and protection from missions although it must be rendered and exercised within the confines of the domestic law and practice of the receiving state and subject to available resources. Moreover, consuls should tread carefully in order not to interfere in the internal affairs of the receiving state. It is in all travellers’ best interest to have the contact details of the mission in the country of destination, as well as the names and contact details of their next of kin with them at all times. They are also encouraged to register with the Department of International Relations and Cooperation (DIRCO) before travelling or after arrival at their destination to ensure that all their personal details and those of their next of kin are available to DIRCO in the event of an emergency.

Travellers are also advised to demand that the nearest SA mission should be informed in the event of their arrest or detention in order to acquire consular assistance as soon as possible. DIRCO, through its Chief Directorate: Consular Services, furthermore, provides advice and instructions to nationals on its website (www.dirco.gov.za) on what our missions can and cannot do in the event that they require assistance.

Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (UJ) is the legal adviser at the Union for Local Employees in Missions Accredited to South Africa (ULEMASA) and a former Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (International Law) at the Department of International Relations and Cooperation in Pretoria.

 This article was first published in De Rebus in 2019 (April) DR 14.

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