Consular and Diplomatic Protection in an Age of Terrorism: Filling the Gaps

• Author: Gar Pardy
• Pages: 233-260

233

Consular and Diplomatic Protection

in an Age of Terrorism: Filling the Gaps

Gar Pardy

A. INTRODUCTION AND BACKGROUND

The treatment of foreigners by governments has not received effective

or conclusive attention by the international community. This lack of at-

tention has been magnif‌ied enormously in recent years by the worldwide

efforts to contain acts of international terrorism. Even existing relevant

international legal instruments have been reinterpreted, ignored, and

broken in the drive for illusory security. The Geneva Conventions,1 the

great bulwark providing the rules for war, did not adequately envisage

1 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick

in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention (II)

for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of

Armed Forces at Sea, 2 August 1949, 75 U.N.T.S. 85; Geneva Convention (III) relative

to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135; Geneva Conven-

tion (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949,

75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and

relating to the Protection of Victims of International Armed Conf‌licts (Protocol I), 8

June 1977, 1125 U.N.T.S. 3 (entered into force 7 December 1950); Protocol Additional

to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims

of Non-International Armed Conf‌licts (Protocol II), 8 June 1977, 1125 U.N.T.S. 609

(entered into force 7 December 1978); Protocol Additional to the Geneva Conventions

of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem

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the asymmetrical warfare of terrorism and the Geneva Conventions have

been wilfully circumscribed. The provisions of the more recent Conven-

tion against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment2 and its Optional Protocol,3 while a rock of some standing,

has been ignored by many governments in the belief that security con-

cerns override its peremptory norms. And the anaemic Vienna Conven-

tion on Consular Relations4 has demonstrated that this example of the

lowest common denominator in treaty-making needs fundamental re-

vision and/or replacement. In this climate, even the hortative prescrip-

tions of the Universal Declaration of Human Rights5 and the International

Covenant on Civil and Political Rights and its Optional Protocol6 have

been of little direct value to persons snared in security webs. This paper

makes proposals for a new multilateral treaty to provide additional pro-

tection for persons encountering diff‌iculties in countries of second or

non-citizenship.

An additional factor of considerable imp ortance has emerged com-

plicating the treatment of foreigners. This is the increasing incidence of

dual citizenship or, as it is frequently misnamed in today’s terminology,

dual nationality. Improvements in transportation, especially the arrival of

the jet engine, the spread of easy, inexpensive international communica-

(Protocol III), 8 December 2005 (entered into force 14 January 2007), online: www.

icrc.org/ihl.nsf/FULL/615.

2 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-

ishment, 10 December 1984, 1465 U.N.T.S. 85 [CAT]; Signatories can be found online:

www.ohchr.org/english/countries/ratif‌ication/9.htm.

3 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, GA Res. 57/199, UN GAOR, 57th Sess., UN

Doc. A/RES/57/199 (2002) [OPCAT]. As of 19 April 2006, there were only eighteen

parties (f‌ifty signatories), two short of the required twenty for entry into force.

Participants can be found online: www.ohchr.org/english/countries/ratif‌ica-

tion/9_b.htm.

4 Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S. 261, Can. T.S.

1974 No. 25, accession by Canada 17 August 1974) [VCCR].

5 Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess., Supp.

No. 13, UN Doc. A/810 (1948).

6 International Convenant on Civil and Political Rights, 19 December 1966, 999

U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 [ICCPR]; Optional Protocol to the

International Covenant on Civil and Political Rights, 23 March 1976, 999 U.N.T.S.

302.