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35 - From a Human Right to Invoke Consular Assistance in the Host State to a Human Right to Claim Diplomatic Protection from One’s State of Nationality?

from The Right to Diplomatic and Consular Protection

Published online by Cambridge University Press:  04 January 2020

Andreas von Arnauld
Affiliation:
Christian-Albrechts Universität zu Kiel, Germany
Kerstin von der Decken
Affiliation:
Christian-Albrechts Universität zu Kiel, Germany
Mart Susi
Affiliation:
Tallinn University, Estonia
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Summary

The argument I am going to make in this short comment is inevitably broad brush. Rather than further discuss the particulars of David Stewart’s eye-opening views on the status of consular assistance in the host state, I want to examine what might be some of the indirect implications of such recognition, and whether it might be taken much further. In particular, I want to suggest that if consular assistance is indeed a human right, then it is a human right that can be invoked both by individuals against the host state (as David Stewart argues) and also vis-à-vis the state of nationality. In other words, it takes two things for the right to consular assistance to be realised: for the host state to notify foreigners of their right to be assisted; and for the state of nationality to actually provide such assistance. Examining the latter involves consideration of the broader but neglected question of a state’s duty to its nationals abroad.

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The Cambridge Handbook of New Human Rights
Recognition, Novelty, Rhetoric
, pp. 453 - 460
Publisher: Cambridge University Press
Print publication year: 2020

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