Protecting Nationals Abroad in Hostile Times

In the midst of a perilous global moment, the fate of many immigrants in the U.S. threatened with removal seems to hang by a thread. This is bound to give rise to hard-fought legal challenges before US courts, as well as resistance from civil society. So far, however, these seem to not have had significant results in a context where rule of law safeguards are being ignored. What role might international law play in this context? By and large, there are precious few international fora towards which migrants can turn for remedies. But what if the most potent help came not from the international community but from the states of nationality of those targeted? Could what was once known as the international law of the protection of nationals be experiencing a remarkable resurgence?

States of Nationality to the Rescue

Indeed, perhaps the most striking reaction to date has been that of third states, intervening on behalf of their nationals and insisting that their rights be respected. Mexico, Brazil and Colombia have to varying degrees mobilized in favor of their expatriates, assuring them that their respective consulates stand ready to assist them, making strong representations to the U.S., and protesting the treatment of their nationals. The shackling of deportees, in particular, seems to have struck a nerve and been understood as a humiliating breach of both personal and national dignity. This is, moreover, not only a U.S. phenomenon. For example, Algeria is locked in a diplomatic crisis with France, insisting that it will not accept Algerian returnees against the background of increasingly onerous visa conditions for its nationals.

This is in some ways a remarkable development: foreign states tell other sovereign states how they should deal with the former’s nationals on the latter’s territory. And yet, there is a degree of déjà vu. The international law of protection of nationals abroad was once a dominant theme in international law. The idea of states as a sort of “backer of last resort” of the rights of their nationals has a long history. Most notably, it was used by Western powers in the 19th and early 20th Century to vindicate the rights of their nationals especially, as it happens, in Latin America as well as China, against mob violence, unfair trial or property confiscation among other things. Then, it was very much associated with the history of imperialism and gunboat diplomacy as well as complex forms of transnational personal jurisdiction. Understandably, newly decolonized states, starting with the Latin American republics, wanted nothing of a system that imposed special obligations towards foreigners on their territory. Is there anything rescuable from that genealogy?

The Rise of International Human Rights Law and the Purported Demise of the International Law of Aliens

In that broader story, international human rights law was supposed to have largely replaced the idea of protecting the rights of one’s nationals abroad, promising that the rights of all would be guaranteed on a territorial basis, wherever one might find oneself and whatever one’s nationality. This is on the face of it a clear improvement: certainly, on a state’s territory, whether one is a national or not should not make a difference in terms of the host state’s obligations to respect one’s rights. Moreover, providing foreign states with fewer rather than more excuses to intervene in the affairs of other states must count as a benefit of contemporary international law.

That system of human rights, however, for all its dramatic reinvention is of little use where human rights treaties have not been ratified or states refuse to implement them domestically. At the time of the adoption of the Universal Declaration, Hannah Arendt had already voiced a note of disquiet about this universalist take, hinting that one should not lose sight of the extent to which rights had historically been vindicated through participation as citizens in actual states. Over the last couple of decades, against the background of a dramatic reversal in refugee flow, a number of states from the Global South have awakened to the importance as well as the vulnerability of their expatriate populations. They have become far more likely to intervene on their behalf, using the consular and diplomatic tools that are at their disposal as part of broader policies of reaching out to diasporas.

Where international institutions, notably those designed to ensure that the rights of all are protected on each state’s territory are absent or toothless, states at least bring considerable leverage in bilateral contexts. After widely publicized instances of bad treatment of its nationals, for example, the Philippines threatened to withdraw all Filipino domestic workers from Kuwait, thus exposing the considerable vulnerability of Gulf States to such a pullout. Some of the most spectacular efforts to fight the death penalty have been fought directly by states of nationality over the fate of expatriates, with both Mexico and Germany famously taking up the failure by the U.S. to notify their nationals of their right to consular assistance all the way to the International Court of Justice in the Hague. Of late, Mexico has funded its own highly successful program to assist Mexican nationals facing the death penalty in the U.S. Bangladesh has deployed safe houses in the Gulf for exploited female workers. Nor is this confined to states from the Global South. It includes a renewal of diplomatic activism by Western states on behalf of their citizens taken as “judicial hostages,” for example. The fate of nationals abroad, then, has become emblematic of a renewed investment in their protection, somewhere at the intersection of human rights and the protection of aliens.

The Return of the International Law of the Protection of Aliens?

Are we witnessing a return of the protection of nationals abroad, perhaps particularly in a context of crisis of the so-called rules based international order? There are certainly signs that older norms of protection of nationals and human rights principles are merging to provide dynamic opportunities for states to do more to protect their nationals transnationally. Many states’ foreign policy is increasingly dominated by the fate of their nationals abroad. In exercising some form of protection, states can claim that they exercise forms of passive and active personality jurisdiction towards their nationals. At the very least, they are less easily suspected of interference than when intervening on behalf of humanity. At the same time, when states of nationality are seen as not doing enough, there has been considerable local pressure to make sure that they take seriously the human rights fate of their nationals abroad and, in particular, not discriminate against them. Such interventions in favor of one’s nationals abroad, moreover, are increasingly framed as partaking in the discharge of international human rights obligations. The Committee on the Right of Migrant Workers has pressed states such as Ecuador or Benin for example on how they discharge their consular functions for the benefit of their expatriate workers.

Such moves may not always be successful as the recent example of Colombia shows, after President Petro backed down from his refusal to receive Colombian deportees from the U.S. (although he has since encouraged Colombians there to return to Colombia in an apparent effort to reclaim the initiative). But in the right circumstances such efforts have at least prompted host states to pay attention to the demands of nationality states. For example, Kuwait eventually agreed to sign a workers’ rights protection agreement with the Philippines. In showing themselves willing to fight for their nationals abroad, moreover, states extend the bonds of civic solidarity across borders to populations on whom they have become dependent for remittances and forms of political influence and which they may even have enfranchised. They thus engage in forms of novel transnational human rights protection that can significantly alter foreign relations. They also remind the world that “immigrants” are “emigrants” too, i.e.: that they remain nationals of other states that have their back and will insist that they be treated with dignity.

To be sure, the protection of nationals and international human rights protection may be an odd fit. The former seems to privilege one’s citizens at the expense of human rights’ more universalist bend. However, they also only do so in a particular transnational environment where no other state has as much of an interest in or justification to intervene on behalf of its nationals. They change nothing to the fact that, on their territory, states continue to owe the full gamut of human rights to nationals and foreigners alike. In a context where international human rights institutions remain weak, there is considerable symbolic value to such transnational interventions. They sustain a certain vision of emigrants’ dignity as citizens of other states and represent a non-negligible potential for resistance to rights violations in the host state.