The obligation to protect: the legal context for diplomatic protection of Canadians abroad.

AuthorForcese, Craig

INTRODUCTION

Repeated instances of detention, torture and, in one case, murder of Canadian citizens by foreign governments have rocked Canada's foreign policy establishment. In October 2003, Maher Arar arrived in Canada after being detained in Syrian military prison for more than a year on unsupported terrorism suspicions. In 2002, Arar--a dual Canadian-Syrian national--had been returning to Canada from a holiday in Tunisia via the United States. He was promptly arrested by U.S. authorities during his stopover in New York on suspicion of terrorist connections, and deported to Jordan. After administering a beating, Jordanian officials then removed Mr. Afar to Syria, the country of his birth. While in Syria, Syrian agents tortured Mr. Arar, (1) sparking an inquiry by the Government of Canada into its role in Mr. Arar's treatment. (2)

Mr. Arar's case, and the similar treatment of several other Arab-Canadians detained in Egypt and Syria in the years following 9/11 have sparked enormous controversy in Canada. (3) These events follow hard on the heels of the arrest and beating death of Zahra Kazemi, a 54-year old photojournalist with dual Canadian-Iranian nationality, by Iranian authorities in June 2003. They also follow in the wake of the detention and torture of Canadian-UK citizen William Sampson for two and one-half years in Saudi Arabia. (4)

Some critics have cited these events as new evidence of Canada's flagging influence in the community of nations, and of the failures of its "soft power" foreign policy. (5) Others have suggested more sinister motives, at least in relation to the treatment of Mr. Arar and other Arab-Canadians; namely, a Canadian policy of extraordinary rendition of terrorist suspects to torturing regimes. (6) Under these circumstances, these instances of maltreatment of Canadian citizens abroad raise more than political and foreign policy issues. They also raise important and complex questions about Canada's legal liability to those injured by foreign abuse. Most obviously, in what circumstance would Canada itself incur responsibility for mistreatment inflicted by a foreign state? Two logical possibilities present themselves: first, responsibility incurred because of complicity in the commission of the harm and second, responsibility flowing from omission; that is, a failure to intervene (or intervene properly) to forestall the abuse.

Acts of complicity in the maltreatment of a state's nationals by another state is arguably the most straight forward of the two prospective sources of responsibility. An active contribution to an injury is readily cognizable as a source of responsibility in international law and liability in domestic law. On the other hand, whether responsibility flows from a failure to intervene and prevent abuse is a more difficult question. Certainly, the notion that states may act to protect their nationals is one of the oldest doctrines of international law, known generally as diplomatic protection. More contentious is whether a state is obligated to extend this diplomatic protection to its nationals. A natural corollary question is whether a state that fails to extend diplomatic protection to its nationals might be liable for this omission.

The article that follows does not engage the legal questions raised by possible Canadian complicity in maltreatment. Instead, this paper takes up the broader legal questions raised by the diplomatic protection matter: is the government obligated to intercede and protect its citizens? It does so in three parts. Part I briefly sets the factual stage for this study. Without pronouncing on the merits of these claims, it examines controversies over Canadian diplomatic and consular practices in relation to Canadians detained abroad. Part II then focuses on the extent to which Canada is obliged to extend diplomatic protection to its nationals overseas; that is, whether diplomatic protection is a duty under either international or domestic public law. Finally, Part III considers whether a failure to meet such a putative public law obligation gives rise to liability in Canadian law.

The article concludes that decisions concerning diplomatic protection are amenable to scrutiny in Canadian public law, potentially as a constitutional matter and almost certainly as part of administrative law. In the right circumstances, a failure to extend diplomatic protection could be actionable in private law, although success in such a lawsuit would oblige a plaintiff to overcome important legal and evidentiary hurdles. All told, the legal context for diplomatic protection remains rudimentary. The article urges that this situation be corrected.

  1. CONTROVERSIES IN DIPLOMATIC PROTECTION

    1. Defining Diplomatic Protection

      In international law, "diplomatic protection" is a concept with several guises. In its classic form, it includes "an international proceeding, constituting 'an appeal by nation to nation for the performance of the obligations of the one to the other, growing out of their mutual rights and duties'." (7) In keeping with this broad definition, the United Nations International Law Commission's Special Rapporteur on Diplomatic Protection (ILC Rapporteur) recently defined the concept as an "action taken by a State against another State in respect of an injury to the person or property of a national caused by an internationally wrongful act or omission attributable to the latter State." (8) While the ILC Rapporteur included many examples of state conduct in his definition of "action", a key component includes the pursuit of judicial or arbitral proceedings. Known as "espousal of claims", diplomatic protection of this sort involves a state prosecuting a complaint against another country, one that has committed an internationally wrongful act against the first state's national. Put simply, espousal of claims is a species of international lawsuit where a state steps into the shoes of its injured national.

      "Diplomatic protection" is supplemented by "consular protection", a function with a strong treaty base in modern international law. (9) Consular protection is the key preoccupation of this article. Article 3 of the Vienna Convention on Diplomatic Relations (VCCR) lists, as one of the functions of a diplomatic mission, "protecting in the receiving state the interests of the sending state and its nationals, within the limits permitted by international law." (10) The VCCR asserts a similar role for consular officials, (11) and some authorities describe the protection of nationals as a consul's central task. (12)

      The VCCR also sets out specific responsibilities of "receiving" states in facilitating consular assistance of detained, "sending" state nationals. Thus, Article 36 provides that consular officials are "free to communicate with nationals of the sending State and to have access to them". Nationals of the sending state have a reciprocal freedom to communicate with, and have access to, consular officers of the sending State. Moreover, upon request of that national, the receiving state must inform consular officials that a national is detained. In a provision at issue in two recent International Court of Justice (ICJ) cases, (13) the receiving state must inform "without delay" the detained alien of his or her right to contact consular officials. In Avena, the International Court of Justice concluded that this obligation arises immediately upon receiving state officials learning (or suspecting) that the detained individual is a foreign national. (14) Once notified of the detention, consular officials then have a right to visit and converse with their national and arrange for his or her legal representation, unless refused by the national. (15)

    2. Canadian Practice

      Like other states, Canada does extend diplomatic protection to its nationals abroad, most frequently expressed in the form of consular assistance. Konrad Sigurdson, Director General, Consular Affairs Bureau, Department of Foreign Affairs and International Trade (DFAIT), told a parliamentary committee in 2003 that "Canada has one of the best consular assistance programs in the world." In 2002, his office "handled close to 170,000 formal cases, involving but not limited to arrest and detention cases, death abroad, medical assistance, repatriation, well-being and whereabouts investigations, assistance with loss or theft of property and passports, and the processing of citizenship applications." One percent of these cases concerned arrests or detentions, three quarters of which occurred in the United States, usually on drug-related charges. (16)

      Most of these consular cases are apparently resolved without controversy. However, several high profile detentions of Canadian citizens by foreign states have prompted criticism that Canada does not do enough to extend diplomatic protection to its nationals. (17) The accusations leveled against Canadian officials vary. In cases such as that of Mr. Arar, Abdullah Almalki, Ahmad Abou-El Maati and Muayyed Nureddin all detained and tortured in Syria--suspicions have been raised that consular officials were (at best) willfully blind to torture in Syria and inept in their handling of these men's cases.

      In its closing submissions to the Arar Commission, for instance, Amnesty International flagged a number of important questions about the action of Canadian officials, raised by the evidence before the inquiry. For example, "[t]he allegations of torture in Syria that were conveyed by Mr. El Maati during a consular visit in Egypt in July 2002 do not appear to have been circulated to all appropriate officials and do not appear to have influenced how subsequent cases such as Mr. Almalki, Mr. Arar and Mr. Nureddin were approached." (18) Subsequently, disagreements and poor communications between government agencies "obstructed the formulation of a unified Canadian government statement to Syrian officials regarding Mr. Arar's case, and may have delayed...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT