Consular Assistance Legal System Research

Consular assistance is an important consular function listed in theVienna Convention on Consular Relations.Although there have been greatdevelopments in relevant fields,there hasn’t been any systematicanalysis till now.This thesis is aimed at discussing the fundamentalissues about the legal system of consular assistance in order to enrichthe research of the diplomatic and consular law as well as promote therelevant practices.From the perspective of who to assist、whom to be assisted、how toassist、 in accordance what to assist and when to assist,consularassistance is the assistance from the embassies and consulates of thesending state to its own nationals in accordance with international law、domestic laws of the sending state and receiving state when the interestsof the nationals are damaged or the nationals need other help.Diplomaticprotection and consular assistance are two issues in terms of the fieldof international law and domestic law.Consular assistance can and has beenused as an exactitude conception in diplomatic and consularlaw.However,the connotation and denotation of consular protection isalways vague.Consular protection can be defined as a kind of consularassistance with implied consent.The fundamental principles of consular assistance include theprinciple of nationalities,the principle of adherence to the law,theprinciple of consent and the principle of limitedassistance.Firstly,consular assistance embodies the personaljurisdiction of the sending state to its nationals inside the receivingstate.Secondly,international law and domestic law regulate differentaspects of the legal relationships of consular assistance.Thirdly,the embassies and consulates of the sending state should fully respect theright of its nationals to make their own decisions.Fouthly,the sphere ofconsular assistance and whether consular assistance will succeed or notare restrained by the actual situation of the receiving state.The relevant legal relationships of consular assistance include boththe international legal relationship between the sending state and thereceiving state and the domestic legal relationship between the sendingstate and its nationals.In the international legal relationship betweenthe sending state and the receiving state,consular assistance is the rightof the sending state against the receiving state;In the domestic legalrelationship between the sending state and its nationals,consularassistance is the obligation of the sending state to its nationals if thereare relevant express articles.And inside the sending states withoutrelevant articles,if the governments promise to assist its nationals overa long period of time,the sending state might bear the obligation to assistits nationals by its demestic courts in accordance with the doctrine oflegitimate expectation.Two cases in Canada and UK already showed this.The VCCR only states that the consulates of the sending states mightperform the function of consular assistance inside the receivingstate,but it doesn’t mention how to perform it under differentcircumstances.The specific legal rules of consular assistance should becovered by the domestic laws of relevant sending states.This thesisdiscusses the following seven different circumstances:accidents orillness,violated by crimes,death,economic trouble,severe emergencies(such as natural disasters、 terrorism、 political turmoil or armedconflict),missing,detention.Because the special situations of thedetained nationals and the complexity of relevant legal issues,thisthesis places emphasis on this topic. The assistance from the sendingstate to its detained nationals can mainly have humanitarian、protective and legal functions.After systematically recalling the four cases relevant with VCCRtried by ICJ from1998to2009,this thesis mainly discusses the content、relationship and nature of consular information、consular notificationand consular access.Their relationship is a kind of triptych.Consularinformation is the national obligaition of the receiving state againstthe nationals of the sending state.Consular notification is the nationalobligation of the receiving state against the sending state.Consularaccess is the national right of the sending state agaist the receivingstate.As the defendant of the four cases,because of the conjunction offederalism and dualism,at one time,the US emphasized the individual rightof the detained nationals during the conclusion of VCCR,promoted theconclusion of the Optional Protocol on the Compulsory Settlement ofDisputes of the Vienna Convention on Consular Relations,became the firststate to assert the individual right of detained nationals against otherstate quoting VCCR,and took relevant measures to encourage the statesto honor the obligation of consular information.At the same time,the USfrequenly failed to honor the obligations of consular information andnotification and was sued to the ICJ several times subsuquenlty.As aresult,the US quited from the Optional Protocol on the CompulsorySettlement of Disputes of the Vienna Convention on Consular Relations andwas criticized as uniteralism and double standard.Because of themutuality of diplomatic and consular law,China should honor theobligation of consular information and consular notification as areceving state.At the same time,China should pay attention to whetherother states honore their obligations to its detained nationals andsafeguard their interests.Along with the deepening of globlisation,the international law isundergoing transformation, the legal system of consular assistance is also taking on some new looks such as humanization as the dominantideal,multiplication of actors to perform assistance and diversificationof the assisted.The longtime perspective of examing the VCCR amidstinternational relations has changed.The American Human Rights Court andICJ delared that there is individual right contained in Article36ofVCCR.The American Human Rights Court stepped forward to take that rightas a kind of human right from the perspective of due precess.The legalsystem of consular assistance crossed the boundry of diplomatic andconsular law and began to blend with internatiol human rights law to someextent.The international community began to examine the issue of consularassistance from the perspective of humanization.Some states even providedthat the state has the legal obligation of consular assistance.Next isthe multiplication of actors to perform assistance.Domestically, moregovernmental organizations besides the ministry of foreign affairs beganto take part in consular assistance.Internationally, along with theemergence of EU citizenship and the universal EU assistance,someinternational organizations began to assist the nationals of its memberstates,which is new to the traditional consular assistance performed bysingle state.The principle of nationalities and the nature of consularassistance are subsequently impacted.However,the so called EUcitizenship hasn’t developed to the level of nationality and the legalliaison point of EU to provide universal consular assistance to thenationals of its member states.The relevant member states continue to bearthe obligation of non-discrimination.The third new development is thediversification of the assisted.When people with dual nationalitiestravel in a third state,either of the states of nationality can provideconsular assistance. When people with dual nationalities travel in oneof the states of nationality,the receiving state usually does’trecognize the assistance from the other state of nationality.However,the other state of nationality often pays close attention.To those permanentresidents,the relevant states usually direct them to seek assistance fromtheir state of nationality.Since the foundation of the Reople’s Republic of China,the legalconstruction of consular assistance experienced three stages such as thestarting period、the period of making phased achievments and the periodof steady progress.The publication of the Regulation of Consular Work ofPRC(Draft) is the first legistlation about consular assistance,whichembodies the fundamental principles of the legal system of consularassistance and regulates specific rules under differentcircumstances.Nowadays,more and more Chinese are travellingoverseas,severe overseas security incidents keep happening.Hence,thelawmaking of consular assistance should be advanced actively、soundly andin an orderly way.In this process,the following issues should be handledappropriately:the relation between law and policy,the relation betweeninternational law and domestic law,the use of concepts,the content of theadjusting area,whether consular assistance can be brought to court or not.