23 May The New Face of Diplomatic Protection
The NY Times fronts this interesting piece today on the rising number of Mexican consulates in the US — now up to 47, with recent additions including cities not traditionally hosting large consular communities, like Little Rock, Raleigh, and St Paul. But that’s where Mexican immigrants are going, and the Mexican government is following. The consulates provide a range of services, including (as the article highlights) the issuance of matricula consular identity cards. My understanding is that the consuls also can play the role of point person with local governments, which may be especially useful in those areas unused to immigrant populations (like Little Rock, Raleigh, and St Paul).
Where the domestic law comes into play (as when the Mexican government goes to bat for nationals caught up in the US criminal justice system — all those VCCR cases, and others) this activity is covered by the law of diplomatic protection. I assume the more informal interaction and service provision isn’t, although it does seem to suggest a new face to an old institution. The law of diplomatic protection was once the stuff of magisterial treatises. It’s more recently been the subject of draft articles from the International Law Commission and a resolution of the International Law Association. Seems like a subject ripe for further (re)exploration.
Isn’t consular protection (under the VCCR) to be seen as separate from diplomatic protection? There is, after all, no requirement of the exhaustion of local remedies, and the protection is not against international wrongs committed by the United States.
Tobias is perfectly right. Diplomatic protection is a different institution, which consists of a state espousing a claim of one of its nationals against another state at the international level. See, e.g., the Mavrommatis case before the PCIJ etc. Consular protection and other services are a whole different ballgame.
Indeed, even LaGrand and Avena were not cases of diplomatic protection, as the ICJ held that the claims of the state itself (i.e. Germany and Mexico) were inextricably linked with those of their nationals, and that the admissibility requirements of the law of diplomatic protection, such as the exhaustion of local remedies, do not apply.
Tobias, Good point. I think a rough equivalence holds at some level of generality, though perhaps not for doctrinal purposes. Both involve what the state can do on behalf of its nationals vis-a-vis other states. As the commentary to the draft ILC articles notes, “Although it is in theory possible to distinguish between diplomatic protection and consular assistance, in practice this task is difficult.”
I’d imagine the St. Paul government is very used to immigrants (albeit perhaps not Latino), due to the regions large Hmong population.
The difference between the services offered, and the international legal significance of, consuls as opposed to diplomats was much greater in the founding period. The consular role could range from mere ombudsman-like assistance to merchants in foreign ports to full-fledged autonomy over home-country nationals as witness the extraterritorial rights of French consuls under the early 1790s convention. Over time, as Peter indicates, the differences diminished. Recent developments, most notably significant trans-border movements of people and the VCCR cases, may signal the need for a renewed bifurcation, albeit without the rebarbative extraterritorial aspects of consuls in the age of imperialism.