1. Introduction
Governments’ efforts to answer pleas from their nationals abroad, and from non-nationals seeking access to their territories, have for a long time shaped and been shaped by international law. States’ attempts to protect nationals extraterritorially have been central to developments in international law concerning the use of armed force.Footnote 1 States’ consular handling of foreign nationals’ claims for asylum and other visas has been the focus of much scholarly attention in international law and adjacent fields.Footnote 2 International legal controversy has surrounded incarcerated foreign nationals’ access to their home states’ consular support, including before the International Court of Justice (ICJ).Footnote 3 The ICJ has ruled, too, on international legal immunities that attach to consular premises and staff.Footnote 4 And states’ support for expatriate nationals, or lack thereof, has influenced developments in the international law on migrants’ rights, and the juridical implications of citizenship, including in the context of the recent pandemic.Footnote 5
Some portion of the work involved in states’ handling of these issues involves diplomacy and lawyering among high-level state officials: the typical preserve of public international law. Much of it, however, does not. A great deal involves the work of consular offices and officials, including some serving in honorary capacities on the fringes of officialdom.Footnote 6 This article investigates international and national legal understandings of that consular work, and imaginaries that emerge within it. Consular work, in this article’s conception, encompasses a wide range of routine and emergency work, addressed to nationals and non-nationals, pertaining to cross-border travel, migration, marriage, divorce, investment, trade, education, adoption, litigation and/or nationals’ extraterritorial injury, disappearance, death, arrest, or detention.Footnote 7
Consular officials are often cast as the most workaday of envoys on the international legal plane.Footnote 8 Paraphrasing the title of a 1971 history of the British Consular service, consular work tends to be framed as Cinderella service: a matter of cleaning up messes and keeping the home fires burning while diplomats travel in proverbial carriages to attend balls.Footnote 9 Whereas the Vienna Convention on Diplomatic Relations (VCDR) charges staff of a diplomatic mission with sovereign ‘representat[ion]’ and ‘negotiat[ion]’, the equivalent provision of the Vienna Convention on Consular Relations (VCCR) envisions consular officials beavering away in backrooms: protecting the interests of a sending state’s nationals, ‘both individuals and bodies corporate’, transmitting documents, inspecting vessels, and issuing passports and visas.Footnote 10
States’ treaty and customary law obligations to respect other states’ rights of consular access to their nationals have been the subject of ICJ proceedings, as highlighted above.Footnote 11 Beyond that setting, however, scholars of international law have been relatively little concerned with consular work. Rather, international legal scholarship has maintained a sense that consular operations are largely a matter of national politics and bureaucracy beyond the primary concern of international law.Footnote 12 In line with this view, social science studies have sometimes approached this domain via Michael Lipsky’s famous theorisation of ‘street-level bureaucracy’.Footnote 13 Moreover, few insights from such empirical studies of consular work have found their way back into international law scholarship. Against this inattention, this article foregrounds those distinctive modes of international legal relation conducted by and through consular offices and officials. As this article will show, consular internationalism propagates views of the international legal plane, its key sites and actors, and relations among them that are quite distinct from, and yet entangled with, those propagated by diplomacy and public international law as traditionally conceived. This article theorizes this distinctive logic as consular internationalism.
Consular internationalism is foregrounded here for two main reasons. First, as scholars working in diplomatic history and international relations have observed, consular work is of growing significance in international affairs.Footnote 14 Demand for consular services is mounting in the face of climate change-related and other kinds of global tumult, as well as increased human mobility and an expanding array of communication channels potentially connecting states to their nationals abroad. At the same time, in-country economic inequality is intensifying globally along multiple axes, meaning that capacities for self-help that some mobile or expatriate communities have been expected to rely on in the face of peril are demonstrably falling short.Footnote 15 Attention to inequality has also engendered greater awareness of the plight of those who have never enjoyed much self-help capacity at all.Footnote 16
Second, this article pursues a hunch that there may be unrealized possibilities for thinking about international law, and grappling afresh with its dilemmas, from a vantage point imagined to be ‘[s]ituated at the interface between the international [legal] system and global society’,Footnote 17 as consular work often is, even as the broad range of social, economic, and legal responsibilities encompassed by the consular role problematizes the idea that ‘the international [legal] system’ and ‘society’ are separate in the first place. Possibilities for fresh thinking may be unleashed, especially, by reading consular internationalism away from its abiding historic associations with mercantilism, and more recently with neoliberalism.Footnote 18 Here, consular internationalism is read as a register of encounter that cuts across some commonplaces of diplomatic internationalism in generative, unruly, often confounding ways. Later, the metaphor of the wormhole will be introduced to capture how consular work recomposes international law’s disciplinary architecture. This is the case notwithstanding that consular work is frequently subservient to state power and remains deeply implicated in global hierarchies.
The argument of this article is that consular internationalism is a richer resource for thought and practice in international law than commonly acknowledged, especially for analyzing historical and contemporary entanglements of imperial and commercial power; for grappling with the role of lay people and multifarious, unsanctioned communities in shaping international legal order; and potentially for supporting anti-domination struggles. The laws and practices of consular internationalism reveal a great variety of individuals and sub-national and transnational communities engaging in juris-generative encounters on the international plane (that is, encounters that produce or shape legal relations internationally). That is the case notwithstanding international law’s enduring commitment to reserving law-making authority to states, international organizations and adjacent elites. Consular practice also evidences highly uneven distribution of that juris-generative capacity. Those with the means to cross borders, and to leverage surrounding claim-making infrastructures – social media platforms as much as courts – are best positioned to work through the wormholes that consular internationalism punches through international legal order, while many have little prospect of doing so. This unevenness is not new, but it now bears upon international legal relations in arguably more influential ways. This suggests that international legal scholars would do well to attend more closely to the ambivalent attachments, compound inequalities, and hybrid forms of power that consular internationalism manifests.
This argument holds potential significance beyond the reach of international law scholarship ordinarily concerned with consular and diplomatic work. It re-enlivens the question of how international law relates to ‘ordinary’ people and the demotic – probing international law’s profound ambivalence on this front.Footnote 19 The question of how international law should relate to lay people or people en masse is a question with which a very wide array of international legal scholarship is concerned, including scholarship on self-determination,Footnote 20 transitional justice,Footnote 21 populism,Footnote 22 public engagement,Footnote 23 and revolutions.Footnote 24 This article poses this question afresh through a focus on prevailing international legal doctrines and practices: an approach informed by practice theory and recent theorization of legal technique.Footnote 25 Through this lens, it casts international legal order as far more dependent on iterative sign-on (that is, on its ability to attract recurrent affirmation, which is not assured), and its hierarchies more ubiquitously contested, than international legal scholarship typically allows. In other words, it suggests that international legal order does not just endure insofar as states say so. Its persistence is contingent on all sorts of people’s continual endorsement and deference.
This engages, also, long-running debates in international legal scholarship concerning when, where, and how experiences of indeterminacy are produced in international legal work, and how such experiences are quelled or circumvented.Footnote 26 Borders between states are among those sites at which international law is experienced by many at its most determinate and determinative. As Yaoundé and Tunis have observed, ‘visa applicants generally have little scope to negotiate, influence, or challenge the discretionary powers of consular staff’ or their interpretations of migration law at international legal borders.Footnote 27 Nonetheless, this article highlights the array of material, doctrinal, and discursive investments required to maintain the determinacy of borders and related distinctions among people, suggesting that international legal determinacy is not easy to sustain. The study of consular internationalism can help expand understanding of how some classifications on the international legal plane come to be experienced as indeterminate or negotiable, and how such experiences get ruled out.
The porousness of classifications routinely made in international law continually resurfaces in consular work. This article will later show how this porousness pervades relevant international legal doctrine, just as other scholars’ empirical studies have highlighted how consular classifications get challenged in practice.Footnote 28 And this permeability is not, for the most part, an effect of human rights law as some scholars suggest.Footnote 29 Rather, this article argues, it is an effect of the irreducible ambivalence to which consular internationalism gives expression. The wager of this article is that foregrounding this consular register in international law, and struggles ongoing in this register, may make this ambivalence more leverageable, in the context of growing migration inequality,Footnote 30 by those against whom worldly odds seem most stacked.
To advance this argument, Section 2 introduces the distinctiveness of consular internationalism, as expressed in the VCCR, in contrast to the diplomatic internationalism enshrined in the VCDR. The aim of this comparison is to specify the internationalist optic that consular work engenders in an ideal type.Footnote 31 Section 3 examines how this consular internationalist optic has been shaped and reshaped by national and international courts’ renderings of consular work, as well as community contestation of that state practice, illustrated by litigants’ efforts in various jurisdictions to subject consular decision-making to judicial review. Section 4 draws out the distinctive theorization of international law that emerges from consular internationalism, employing the motif of wormholes to suggest how consular work both spans and scrambles received classifications of authority in international law.Footnote 32 Section 5 concludes by reflecting on the possibilities and problems that may be associated with international lawyers approaching the international legal plane through the lens of consular internationalism.
2. A tale of two internationalisms: Diplomatic and consular
In international legal doctrine and scholarship, diplomatic and consular affairs have often been addressed in tandem, as indicated by the structural parallels between the VCDR and the VCCR, their paired provenance in the work of the International Law Commission, and frequent coupling in scholarly commentary.Footnote 33 There are, nonetheless, important distinctions in how these two Conventions respectively depict and approach the international legal plane, and there is much at stake in whether a diplomatic or consular optic is adopted in any particular matter. These distinctions are the focus of this section. Its aim is not to retell stories told by international relations and diplomatic history scholars elsewhere about the history of the consular institution, but rather to make international legal scholars aware of some of these stories’ main threads, connect them to features of international law doctrine, and consider their ramifications for international legal work.
2.1. Diplomatic internationalism
Diplomatic internationalism conforms, in many ways, to internationalism as public international lawyers have typically approached it. As James Crawford observed, ‘diplomacy comprises any means by which states establish or maintain mutual relations, communicate with each other, or carry out political or legal transactions, in each case through their authorized agents’, irrespective of whether the states concerned are embroiled in ‘material forms of economic or military conflict’.Footnote 34 What is most telling in Crawford’s characterization of diplomacy is the emphasis placed on mutuality of recognition between states concerned, and the channelling of their relations through authorized agents. Also noteworthy is the fact that diplomacy may continue notwithstanding intense, even violent conflict between the states concerned, implying that diplomatic discourse and violence proceed on entirely separate tracks (despite ample historical evidence to the contrary).Footnote 35
The international legal order evoked by diplomacy is, accordingly, one dominated by states envisioned in relations of formal inequality, with those relations conducted through designated representatives organized by rank. Such an international legal order must allow for the isolation of high-level state agents’ interactions from ‘economic or military conflict’ ongoing besides. In other words, diplomatic internationalism is a multi-channel, dissonant affair, with diplomacy reserved for that channel that is ‘at the most formal end of the spectrum of international communication’ for which international law provides.Footnote 36 Just as diplomacy is imagined to be separable from violence, so it is envisioned to be distinguishable from economic conflict. For this sense of multi-modal relation to be sustained, and for diplomacy to occupy a distinct, rarefied register within it, the international legal plane must be stratified, and its stratification continually defended.
The work of diplomacy has, of course, come to encompass all sorts of international relations beyond and between traditional channels of formal, interstate relation: public diplomacy, for instance.Footnote 37 And states’ international legal rights of diplomatic protection engage with the predicaments of individual natural and legal persons.Footnote 38 Nonetheless, stratification remains crucial to diplomacy. Diplomacy ‘proper’ is typically confined to affairs of state and reserved to a privileged class of persons (privileged in the sense of being historically dominated by aristocrats and property-holders as well as enjoying legal privileges and immunities specified by the VCDR).Footnote 39 Meanwhile, public diplomacy and other modes of diplomacy that revolve around engaging with the ‘common people’ are often seen as lower-status forms of diplomatic work, reserved for those in the nether ranks of diplomatic hierarchies or working at its semi-official peripheries.Footnote 40 Diplomatic internationalism is, accordingly, class-based internationalism in multiple senses of that term. Given this propensity for diplomacy to stratify, it is unsurprising that practices and pedagogies of diplomacy have lent heavily, historically, on the mores of the upper classes,Footnote 41 or that diplomatic institutions have been an explicit focus of class struggle.Footnote 42
This stratified, state-oriented internationalist optic is both expressed in and defended by the VCDR.Footnote 43 That Convention provides for diplomatic relations to be established between states ‘by mutual consent’.Footnote 44 It anticipates diplomatic missions performing a range of state-directed functions including ‘negotiating with the Government of the receiving state’.Footnote 45 The VCDR requires the head of a diplomatic mission to be accredited with each state receiving that mission, subject to that receiving state’s agreement, while the staff of the mission may be ‘freely appoint[ed]’ by the sending state.Footnote 46 It divides heads of mission into three classes, establishes an order of precedence among these heads in their respective classes, and anticipates other diplomatic staff being similarly ranked at the direction of their head of mission.Footnote 47 The VCDR links diplomatic privileges explicitly to state territory by focusing attention on diplomats’ ‘arriv[al] in the territory of the receiving state’ and departure from it, providing for diplomats’ accommodation on that state’s territory, and their freedom of movement within that territory, as well as extending diplomatic inviolability to those transiting through third state territory.Footnote 48
In all these ways, the diplomatic internationalism enshrined in the VCDR is characterized by relative closure, parallelism, and hierarchy. Diplomacy does not entail reconciling all differences; it does not expect or require that participants hold the same worldviews, for instance. Rather, diplomacy ‘folds’ international differences into formality and hierarchy, to both maintain the irreconcilable within the international sphere and contain its effects.Footnote 49 In the international law of diplomacy, international lawyers approach the world via carefully patrolled relations of rank, maintaining stubborn insistence on the separateness of economics from politics, and discourse from violence, as shown in this section. In other words, diplomacy revolves around conservation of the contradictions that international law embeds in state sovereignty: in the combination of states’ formal legal equality with inter-state hierarchy in fact and in law (for instance, in the UN Security Council); and the conjunction of international legal commitments to self-determination with the manifest anti-pluralism apparent in international law’s prioritization of the interests of existing territorial states (in the principle of uti possidetis, for example).Footnote 50 Whereas diplomatic internationalism cultivates studied inattention to these contradictions while sustaining them, consular internationalism works with and through them, sometimes wedging them open.
2.2. Consular internationalism
Consular histories are ‘winding and often confusing’; unlike diplomacy, consular work has never been associated with ‘a specific way of “being-in-the-world” …instantly recognizable by other consuls’, although consular personnel do maintain ‘communities of practice’.Footnote 51 Nonetheless, consular institutions encountered today – typically part of unitary national foreign services, alongside diplomatic corps and ministries of foreign affairs – have a genealogy quite distinct from these services’ other arms.Footnote 52
The consular office has frequently been dated to the work of proxeni (residents of one city-state employed by another to receive dignitaries, collect information and facilitate trade) and prostatai (intermediaries between the polis and foreigners living within it) in Ancient Greece, and later to the Roman office of praetor peregrinus (charged with settling disputes between citizens and foreigners).Footnote 53 Whether from these beginnings or others, the consular office is traceable to the phenomenon of expatriate communities, especially traders, selecting or electing, from among their own, certain persons charged with mediation among distinct communities.Footnote 54 These persons’ partisan, communal mandates expanded over time so that consuls (or consul-equivalents) became not just magistrates or fixers for diasporic polities but their ‘fully-fledged leader[s]’ charged with wide-ranging responsibilities.Footnote 55 Throughout the Middle Ages, the consular role became more differentiated and specialized.Footnote 56 Then from the thirteenth century onwards, sovereigns started to assume greater responsibility for consular appointment.Footnote 57 Between the seventeenth and nineteenth centuries, the consular institution was largely absorbed into the architecture of nation states, whereupon it was generally subordinated to its diplomatic counterpart.Footnote 58 This subordination is indicated, for example, in the VCDR’s allowance for diplomatic missions to perform consular functions, treating consular work as a subset of diplomatic work.Footnote 59 Since their absorption into state-based international legal order, consular offices have been partially delinked from these histories of communal appointment and attachment, but not entirely so. Well into the nineteenth century, and even today, consular work remains city-based to a significant degree.Footnote 60
The statist takeover of consular work; the residue of consular officials’ partisan allegiances; and allowance for the partial privatization of consular work (with commercial outsourcing of consular functions having recently grown) are all apparent in the VCCR.Footnote 61 Concluded in 1963, the VCCR reflected an aspiration that forces of mercantile ambition, community connection, and private partisanship might be both tamed and tapped by international law, while being stripped of their fragmentary potential. Instead, consular work was cast diminutively in the VCCR as the servicing of peoples’ and firms’ daily needs, and by extension, those of global markets.
Article 38 of the VCCR makes this servile framing apparent, stipulating that consular offices may only address the ‘central authorities of the receiving state if and to the extent that this is [expressly] allowed’; otherwise, they ordinarily only ‘address… the competent local authorities of their consular district’.Footnote 62 This is combined, nevertheless, with the expectation, set out in Article 5(c), that consular officials should ascertain ‘conditions and developments in the commercial, economic, cultural and scientific life of the receiving state’ and report ‘thereon to the Government of the sending state and… persons interested’.Footnote 63 Together, these provisions give consular internationalism a sense of being closer to the proverbial street than diplomatic internationalism, and valued for the insights that such proximity yields.
Reflecting these street-level attachments, consular internationalism is presented in the VCCR as a relatively modest, mundane affair: less a matter of high-stakes inter-sovereign negotiation than one of people showing up bearing the right paperwork. This is reflected, for instance, in processes of consular appointment. Whereas the VCDR provides for a sending state to ‘accredit’ diplomats formally with a receiving state, as noted above, the VCCR anticipates the head of a consular post simply being given ‘a document, in the form of a commission or similar instrument’ certifying their capacity, which shall concurrently be ‘transmit[ted]’ through diplomatic or other appropriate channels.Footnote 64
Consular internationalism is also more piecemeal in its territorial arrangements than diplomatic internationalism. Cities, provinces, and regions have long been engaged in consular work, and do so to this day, especially but not only in federal states.Footnote 65 In recognition of this, the representative competence entrusted to a consular official in the VCCR is not isomorphic with the territory of a nation state. Rather, a consular post is attached to a designated ‘consular district’.Footnote 66 Moreover, the VCCR provides for a consular official to serve more than one sending state within that district.Footnote 67 And state or public service need not be the consular official’s sole pursuit. Consular officials may carry on ‘any private gainful occupation in the receiving state’, Article 57 allows, although ‘[c]areer consular officers shall not carry on for personal profit any professional or commercial activity in the receiving state’.Footnote 68
In all these ways, the VCCR arranges the international legal field in quite different configurations to those sketched by the VCDR. In contrast to the singular state devotion and whole-of-self-and-state coherence generally presupposed by the VCDR, Footnote 69 the VCCR holds open space for ambivalent relations and multiple allegiances: space cross-hatched by the patchwork of bilateral agreements and regional agreements on consular relations.Footnote 70 As Leira and Neumann have observed, the ‘consular jurisdiction has the particular character of being domestic and international at the same time’.Footnote 71 It also straddles the governance modes of imperium (rule characteristic of sovereigns) and dominium (rule characteristic of property-holders).Footnote 72 Koskenniemi notes that the exercise of consular jurisdiction has served as a relatively low-cost mode of extending imperial rule.Footnote 73 Nonetheless, consular work in the service of state sovereignty has always been ‘superimposed upon [the consular jurisdiction’s] commercial character’, evoking the power of dominium as well.Footnote 74 While, as argued above, diplomatic internationalism tends to paper over sovereignty’s contradictions, consular internationalism invites those contradictions’ periodic reopening. Maïa Pal’s study of the social backgrounds and work of seventeenth century Dutch, French, and English consuls in the Mediterranean vividly illustrates this polyvalence.Footnote 75 This multiplicity has troubled efforts to render the exercise of consular jurisdiction judicially reviewable, as Section 3 will show.
3. Legalising consular internationalism?
Persons that are the focus of consular attention, or solicit that attention, are often in dire straits. Some face death. Others seek permission to travel or work, or to have some legal status or instrument certified: matters in which they are often deeply invested. In view of this, it is unsurprising that those disappointed by consular decision-making have often sought recourse under national law, including from domestic courts. Also, clarification has been sought from international courts of the international legal consequences of states’ decisions whether to provide consular assistance.Footnote 76 Consular internationalism has been shaped, in part, by courts’ responses to such applications.
This section selectively surveys some national legal developments on this front, and to a lesser extent some corresponding international and regional developments. Its aim is to show how much struggle is involved in upholding divides long axiomatic to the international legal order, such as that between law and politics – struggle manifest recurrently in the consular domain. Courts in the jurisdictions examined here have mostly managed to reserve consular decision-making to sovereign prerogative. Yet this prerogative has nonetheless faced challenge under international and regional human rights law, and under the administrative law, constitutional law, and citizenship law of various states. Australia, China, Mexico, South Africa, the United Kingdom, and the United States are the focus here, chosen to convey a sense of the diversity of legal, political, and economic systems in which provocations of this kind have been apparent. Notably, EU member states are mostly absent from this part, even as developments in EU law and policy have significantly affected the provision of consular assistance, because of the sizeable volume of scholarship already surveying those developments.Footnote 77
As public resources in many parts of the world have been straitened (in connection with austerity policies, tax base erosion, debt burdens, emigration, and rising disaster relief, health, and social security costs), states have become increasingly dependent on their nationals for the advance of states’ economic and security interests globally.Footnote 78 For these and other reasons, recent decades have seen states forge a greater array of legal and policy links to diasporic communities.Footnote 79 Even so, states have remained selective in their willingness to extend the ‘watchful eye and… strong arm’ of consular protection to their nationals, and similarly selective in which non-nationals they are willing to admit to their territories.Footnote 80 This selectiveness has prompted a range of communities and individuals to argue, before national courts, for the expansion of states’ consular responsibilities – including plaintiffs that might otherwise have been circumspect about expanding state power. Those who do take to court (or the court of public opinion) to argue for an expanded aegis of consular authority are often unruly state surrogates, frequently arguing for state support of historically marginalized citizens such as those tagged as terrorists, migrants, and asylum seekers. This lends consular internationalism a significant degree of fractiousness.
Appeals for consular assistance potentially engage two forms of legal right on the part of a state.Footnote 81 One of these is a state’s right, under public international law, to exercise diplomatic protection, vis-à-vis another state, protesting the latter’s treatment of a natural or legal person that is a national of the plaintiff state, as if the harm done to that national were an offense against the state of nationality. In exercise of this right, a state may present an international claim in such forums, and/or take such remedial actions against the alleged offender state, as public international law allows. The second is a right of a state, under national law, to discharge its national administrative functions on foreign territory by providing its nationals on that territory with consular assistance, or processing visa applications from foreign nationals, within the limits of extraterritorial jurisdiction recognized by public international law.
Diplomatic protection is a right opposable to other states on the international legal plane, whereas consular protection is principally an extension of states’ executive power under national law.Footnote 82 Nevertheless, in practice they are frequently entangled. Requests for consular assistance may entail requests for diplomatic protection, and exercise of the latter will often involve consular offices. Such requests may also proceed alongside pleas for a state to bear international legal responsibility for unlawful, extraterritorial state action – arguments that may follow from the fact of states having provided consular support.Footnote 83 Similarly, states’ responses to pleas for diplomatic or consular protection from nationals abroad may sometimes be bound up with the extraterritorial exercise of jurisdiction at the state’s own behest on grounds of nationality or passive personality.Footnote 84
The laws of ‘most countries’ do not afford nationals substantive legal entitlements to receive consular assistance or diplomatic protection, nor allow states’ consular decision-making in these matters to be judicially reviewed, instead deferring to sovereign or executive prerogative.Footnote 85 Germany’s Law on consular officers is sometimes singled out as ‘exceptional’ in this regard because it stipulates that consular officers shall provide German nationals with assistance when they need help, and that need cannot be addressed otherwise.Footnote 86 This requirement is, however, explicitly subject to consular officers’ discretionary assessment of necessity.Footnote 87 As this section will convey, the laws of Australia, China, Mexico, South Africa, the United Kingdom, and the United States generally uphold sovereign prerogative in this area. Nonetheless, as we shall also see, there are important variations among them, and there have been some shifts away from that deference in the face of community challenge. Controversy has surrounded states’ consular handling of foreigners’ claims (in visa processing for instance) and states’ consular protection of their own nationals abroad; both kinds of dispute are canvassed in this section.
Australian federal courts’ constitutionally protected role in reviewing the legality of governments’ administrative action extends, in principle, to action in the consular sphere.Footnote 88 Such review may be limited, however, by the common law act of state doctrine precluding Australian courts from judging the legality of acts of a foreign government done within that foreign state’s own territory.Footnote 89 Judicial review of consular decision-making potentially falls foul of this doctrine insofar as it demands judgement on the kind of peril faced by Australian nationals abroad. Australian courts’ review of consular decision-making is also circumscribed by the potentially more far-reaching common law doctrine of non-justiciability.Footnote 90 That doctrine rules out of bounds certain issues deemed inherently unsuitable for judicial determination, including the propriety of executive action in the sphere of foreign affairs, except to the extent necessary to resolve a justiciable issue.Footnote 91
In line with the tenor of these doctrines, Australian governments facing citizens’ pleas to intercede with foreign states on their behalf, or arrange their repatriation, have strenuously denied any legal duty to make a decision on such matters, a position endorsed by the courts.Footnote 92 This is made clear in the Australian Federal Government’s Consular Services Charter.Footnote 93 In cases involving Australian citizens detained on counter-terrorism grounds abroad, judges have nonetheless shown some willingness to entertain the question whether governmental refusal to consider pleas of this kind is consistent with Australian administrative law.Footnote 94 This is a direction encouraged by the International Law Commission’s 2006 Draft Articles on Diplomatic Protection that set out a ‘recommended practice’ that a state should ‘give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred’ and ‘take into account, wherever feasible, the views of injured persons’.Footnote 95 At the time of writing, a committee of the Australian Parliament was conducting an inquiry into Australia’s approach to the wrongful detention of citizens overseas.Footnote 96 Meanwhile, in Australian migration law, judicial oversight of consular work of visa issuance has been legislatively curtailed to a significant degree, prompting countervailing judicial rulings aimed at protecting those subject to Australian government jurisdiction from arbitrary decision-making.Footnote 97
In China, too, consular protection holds growing political significance for the Chinese Communist Party as it expands its international investments and increasingly treats the security of its citizens abroad as core to its national security.Footnote 98 China maintains a vast network of consular offices worldwide fielding an immense number of requests for consular assistance.Footnote 99 Responsibility for consular protection is operationally decentralized in China, albeit under central governmental and party rule. All provincial governments have their own foreign affairs departments. Regulations issued by China’s Ministries of Foreign Affairs, Commerce, and Labour and Social Security, jointly and respectively, require companies sending workers abroad to assume primary responsibility for ensuring their safety, with local authorities where such companies and/or relevant households are registered charged with sharing that responsibility. This lends consular work a multi-scalar, hybrid quality. The Chinese military has been actively engaged too in evacuating Chinese citizens abroad. And quasi-governmental organizations such as Chinese chambers of commerce routinely provide security services abroad for their members.Footnote 100 Consequentially, judicial review of the consular protection that Chinese citizens enjoy is oriented towards enforcement of the obligations of employers and labour brokers towards Chinese workers whom they send abroad.Footnote 101 Chinese courts do not enjoy the independence from political organs that would allow for the state’s decision-making in this high-stakes domain to be subject to judicial scrutiny at citizens’ motion. Occasional media reports of discontent among Chinese citizens with consular assistance afforded them have been firmly discredited by the state.Footnote 102 As far as consular handling of foreign migrants, the decisions of Chinese state authorities on visa issues are not subject to judicial review under Chinese law.Footnote 103
The expansive network of support that China affords its citizens abroad is not unique. Since the late 1980s, Mexico has been something of a trailblazer in the delivery of socio-legal support to its citizens abroad via its network of consulates and consular protection officers, especially in the United States.Footnote 104 This has been, in significant part, an effect of the ‘assertive and strategic actions of migrants’ leveraging ties to their country of origin to counter obstacles to claim-making in their respective countries of residence.Footnote 105 In the wake of global economic restructuring, emigrants from Mexico came to be ‘not only valued as remittances senders, but also as bearers of human and social capital useful to the development of origin countries’, affording emigrant communities ‘some leverage in negotiating with their countries of origin’.Footnote 106 Accordingly, the Mexican Foreign Service Act provides that consular agents must ‘afford the widest possible protection of the rights of Mexican nationals abroad’ and that heads of consular posts must ‘protect, within their corresponding consular districts, the interests of Mexico and the rights of Mexican nationals under international law’.Footnote 107 Ensuing regimes of consular protection span soft and hard law, including, for example, a memorandum of understanding between Chicago’s Mexican Consulate and the Illinois Department of Child and Family Services requiring consular notice of cases involving Mexican minors.Footnote 108
Alongside this expansion in Mexico’s consular infrastructure, Mexican law has seen proliferating use of writs of amparo seeking judicial review of consular decision-making for compliance with human rights guarantees in the Mexican Constitution. This has been especially so since an Inter-American Court of Human Rights Advisory Opinion was issued in 1999, at Mexico’s request, to clarify the rights and obligations established by the VCCR, and the implications for consular decision-making of due process guarantees in the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Charter of the Organisation of American States.Footnote 109 In that context, the Court opined that the VCCR protects individual rights to consular information and contact as well as establishing rights and duties of states, and that non-observance of those individual rights would be prejudicial to the enjoyment of due process guarantees enshrined in international and regional human rights treaties.Footnote 110 During the decades since, this has been a recurrent point of reference for Mexican courts. Relevant case law has, however, generally revolved around the rights of foreign or dual nationals criminally detained in Mexico, rather than claims by Mexican nationals abroad contesting the adequacy of consular support provided to them.Footnote 111 At the same time, Mexican law affords those refused a visa by Mexican state officials rights of administrative and judicial review.Footnote 112
Faced with limited resources and an increasingly mobile population, South Africa has relied on partnership and outsourcing to deliver consular services abroad.Footnote 113 Some of the partnerships concerned (with Britain, for instance) make use of politico-legal architecture established when the consular jurisdiction was an important instrument of colonial expansion.Footnote 114 Meanwhile, in South African law, courts have maintained the deference commonly afforded the executive in deciding how to handle citizens’ requests for consular assistance or diplomatic protection. A 2004 decision of the South African Constitutional Court (concerning South African nationals accused of plotting to overthrow the government of Equatorial Guinea) suggested a small break in this trend. A majority in that case confirmed that South Africa’s Constitution affords citizens a right to request consular protection against foreign state acts contrary to international law and that the government is obliged to consider such requests appropriately.Footnote 115 Yet the Court also affirmed that ‘[a] court cannot tell the government how to make diplomatic interventions for the protection of its nationals’ and suggested that only ‘in extreme cases’ would refusal of such requests be justiciable.Footnote 116 A later case confirmed that the state’s response to a request for diplomatic protection could quite legitimately entail deciding ‘to do nothing’.Footnote 117 South African constitutional, administrative, immigration and refugee law also provide for judicial review of visa denials by consular officials, although it remains challenging for migrants and asylum seekers to access rights guaranteed to them by law.Footnote 118
The Australian and South African positions, and their tentative stirring in the face of countervailing claims, are broadly in line with developments in the United Kingdom. In a 2002 case concerning a British citizen detained on counter-terrorism grounds in Guantánamo Bay who sought judicial review of the government’s failure to make representations to procure his release, the Court of Appeal confirmed that neither UK, European, nor international law imposes an enforceable duty to protect a citizen abroad or make representations on their behalf.Footnote 119 Even so, the Court created an opening towards judicial review of executive decision-making in this arena on administrative law grounds. It did so by opining that some categories of prerogative decision may be judicially reviewable, and that ‘the Foreign and Commonwealth Office have promulgated a policy which… is capable of giving rise to a legitimate expectation’ given the British government’s ‘clear acceptance… of a role in relation to protecting the rights of British citizens abroad, where there is evidence of miscarriage or denial of justice’.Footnote 120 The Court specified the limited scope of this expectation as follows: ‘[legitimate] expectations are limited and the discretion [of the executive] is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation…[provided] the court [does not] enter the forbidden areas, including decisions affecting foreign policy’.Footnote 121 In the wake of calls from non-governmental organizations and members of parliament for the British government to provide more assistance to citizens abroad who are incarcerated or victims of crime, in 2022 the British Labour Party committed to introducing legislation establishing ‘a new right to consular assistance’.Footnote 122 As far as consular decision-making around visa issuance is concerned, UK law provides rights of administrative and judicial review, although these have waxed and waned politically.Footnote 123 Once again, accessing these rights in practice is often challenging.Footnote 124
In the US, debates about the vulnerability of consular decision-making to judicial review have revolved mainly around the so-called doctrine of consular non-reviewability in the immigration context.Footnote 125 This prevents courts from reviewing consular decisions to grant or deny visas, or set visa requirements, on the basis of Congress’s plenary power to exclude aliens and regulate their entry and its conferral on the executive of exclusive enforcement power in this domain. In the absence of Congress conferring powers of review on them, courts lack subject matter jurisdiction over such matters. This doctrine was established by the US Supreme Court in 1950 in United States ex rel. Knauff v. Shaughnessy but is traceable to the infamous Chinese Exclusion Case of 1889 in which a treaty-based challenge to racist legislation barring immigrants from China was rejected.Footnote 126 The doctrine has been affirmed countless times since.Footnote 127
The apparent intractability of the doctrine of consular non-reviewability notwithstanding, advocates have persistently sought to establish and widen exceptions to it by invoking, for instance, that exclusion’s effect on the constitutionally protected rights of US citizens.Footnote 128 Recently, however, the US Supreme Court underscored the narrowness of such exceptions and affirmed the breadth of the discretion enjoyed by the state in immigration matters.Footnote 129
In contrast, courts and legal scholars in the United States have spent comparatively little time debating the judicial reviewability of consular decision-making concerning the plight of US nationals abroad.Footnote 130 US legislation requires the Secretary of State to inform next-of-kin if an incident abroad affects US citizens’ health and safety, and authorizes expenditure for evacuation.Footnote 131 It also requires the executive to review all cases of US nationals being detained abroad, and if they have been ‘unjustly deprived of [their] liberty by or under the authority of any foreign government’, to demand their release.Footnote 132 The Department of State is also required to develop and implement policies providing for the evacuation of US citizens endangered abroad.Footnote 133 Generally, however, US courts have declined to review executive decision-making surrounding consular support of US nationals, where no breach of US constitutional rights is alleged, on the rationale that executive decision-making in foreign affairs falls in the category of nonjusticiable political questions.Footnote 134 As for foreign nationals detained in the United States, US courts have held that a violation of VCCR consular notification requirements does not in itself implicate fundamental rights protected by the US constitution, placing the burden on detained foreigners to identify constitutionally protected rights prejudiced by VCCR non-compliance.Footnote 135
What is indicated by this brief, selective survey of national (and some regional) law and practice is that consular work is a legal and political battleground growing in significance in view of many states’ recourse to ‘remote border control’ (that is, control at the point of embarkation rather than entry).Footnote 136 It evidences the strenuous effort that states make to try to keep consular work out of the fray of broader public, community contention, and the persistence of migrant communities, other detainees and their supporters in contesting consular governance notwithstanding. States’ prerogative to administer consular affairs has faced recurring challenge, even as states have generally prevailed in the face of these. In effect, consular encounters iteratively restage that classical Hegelian conundrum that has captivated so much modern political and legal thought, namely: what is a state for, and how should we grapple with the manifest shortcomings of the state form?Footnote 137 This underscores the merits of studying consular internationalism as a distinct register of international law – the focus of the next section.
4. Consular internationalism as legal theory: Demotic interface, doubling, and wormholes
There is, of course, no singular theorisation of (international) law characteristic of consular work across the board; it engages law in multiple registers, and at various scales. Beyond the meagre scaffolding of the VCCR, some regional agreements, and an expansive network of bilateral agreements on consular relations, consular work has not been highly standardized internationally, as Section 3 made plain.Footnote 138 Even so, the argument of this section is that consular work tends to configure international legal relations, especially law’s relation to political economy, in somewhat heterodox ways vis-à-vis the diplomatic logic outlined in Section 2.1.
In consular internationalism, actors largely without official status (beyond having an arguable claim to being a citizen, visa holder, or asylum-seeker) seek consular services or protection from a state, often in circumstances of legal or existential precarity. In effect, they make the state answer to their demands for an articulation of the limits of its political discretion and ethico-legal concern, potentially provoking a repositioning of those limits over time. Section 3 documented some shifts in national law that may be understood in these terms, most notably in Mexico, as well as states’ struggle to counteract them. Similarly, Stephan Scheel’s empirical research reveals visa applicants collectively inferring the criteria guiding consular officials’ decision-making, through sharing stories and tailoring applications accordingly, potentially eliciting changes in official policy or practice over time.Footnote 139 Because these strategic manoeuvres on the part of visa applicants may influence governance, this may be understood as re-surfacing the law-generative capacity of unruly collectives and unauthorized individuals in, around, and despite the ubiquity of the state form in international law.
As a register of demotic interface (that is people-state interface), consular work elicits a range of different versions of the state-citizen relation mediated by law, as Section 2 made apparent. These are ‘traditionally more intimate in nature’ than people-state relations engendered by diplomacy because they often concern intimate, familial, or highly personal predicaments.Footnote 140 Consular work requires state officials to interpret authoritatively, and before an audience of at least one other (even a terrorism suspect, as in the Australian, South African, and UK cases mentioned above), some or all of the state’s protective, relation-promoting, information-gathering, mobility-supporting, provisioning, assistive, administrative, safeguarding, representative, transmissive, supervisory, dispute-settling, and other powers and purposes, paraphrasing VCCR Article 5’s statement of consular functions, discussed in Section 2.Footnote 141 In the process, consular internationalism sees the state acting in modes identifiable at once with private international law (that is, mediating individuals’ and firms’ multi-jurisdictional disputes and attachments) and public international law (that is, mediating state-to-state relations). All the while, states generally remain adamant that they are acting politically, in exercise of sovereign prerogative. In this way, consular internationalism scrambles those public/private distinctions that typically do so much work in international legal thought and practice.Footnote 142
In consular encounters, law/politics, public/private, and discretionary/non-discretionary distinctions are rendered unstable. The handling of consular requests requires state officials to activate their discretionary capacity or articulate the relationship between their political agency and their legal office. Ethnographic studies of consular work confirm the considerable ‘room for manoeuvre’ consular officials enjoy, and the extent to which local know-how shapes their work.Footnote 143 This is in the context of states’ general insistence that consular decision-making is a matter of sovereign prerogative, as Section 3 made clear.Footnote 144 Yet this very insistence on sovereign rule of consular discretion discloses states’ awareness of the collective stakes in it, and states’ concern about its expectation-creating potential, offering further indicia of its juridical significance. States generally treat consular policy and protocol as sensitive government information, not for public disclosure;Footnote 145 China’s aversion to media scrutiny of its consular decision-making (highlighted in Section 3) is not exceptional. This combination of positions that states routinely take suggests that consular work is at once political and law-making; unfettered and regulated; core business of government and highly individualized.
Consular officials are called upon by the terms of their employment and surroundings to discipline those unruly encounters characterized here as law-generative (with physical barriers, signage, and surveillance infrastructure being ubiquitous in consular premises).Footnote 146 Empirical studies attest to the distance between consular officials and those seeking services materialized through the architecture of consular offices, outsourcing of consular work, and requirements for queueing, screening, and waiting. They also attest to applicants’ indefatigable efforts to contest these separations. Spontaneous acts of protest occur quite regularly at consular premises.Footnote 147 And, as noted above, visa applicants routinely share lay intelligence to try to surmount these barriers.Footnote 148 The diminutive playing down of consular work as ‘mere’ service work of relatively low prestige in the international legal field (an implicit ‘nothing to see here’) forms part of the ritualized distancing key to states’ efforts to keep these encounters under control.Footnote 149 This has helped the international legal significance of consular work to go largely underappreciated.
As well as muddying distinctions between discretionary and non-discretionary, public and private decision-making, consular internationalism scrambles orthodox configurations of law and political economy internationally. Consular relations entail both inward- and outward-facing forms of lawful address, and frequently both simultaneously.Footnote 150 Accordingly, consular internationalism may have a doubling, distorting effect on received patterns of entitlement and disentitlement, even as it affirms the axiomatic status (and distributive significance) of the bond of nationality in international law. When set outside a state’s territorial jurisdiction, consular articulations of the state-national relationship, and the relative importance of different nationals to the state, do not necessarily correspond to those routinized within that state. Consular encounters often accord with the dynamics of global inequality, as the literature on global migration inequality attests.Footnote 151 Yet they also potentially confound domestic and international hierarchies, potentially opening them to question.
A state’s concern for a relatively underprivileged national abroad may not conform with the position it would take were that state-national relationship staged ‘at home’, for instance. A Mexican national facing criminal charges or civil suit in Mexico may need to establish eligibility for legal aid by proving that they are a welfare recipient, on a low income, or a member of a protected group (migrants, children, displaced persons, refugees). And even then, their access to legal aid may be contingent on whether they live in an urban or rural area.Footnote 152 Were the same Mexican national to face criminal charges in the United States, Mexican consular officials may well assist that national to secure legal representation without any such preconditions having necessarily been met.Footnote 153 US case law on exceptions to consular non-reviewability, noted in Section 3, highlights that outward-facing foreign policy decisions often have inward-facing impacts (on US citizens): a potential basis for forging community-level political alliances across borders.Footnote 154
Conversely, those who enjoy greatest privilege within a state often cannot ensure that privilege’s continued efficacy throughout consular encounters. Scheel recalls one official working in the visa section of a Schengen member state embassy in a North African country telling him: ‘[i]n the context of a large informal economy, even very rich businesspeople find it difficult to provide [the required] documents confirming their wealth’.Footnote 155 That said, wealth does tend to smooth the way through consular encounters, in part because of the range of visas available globally that are conditional upon meeting certain economic or investment criteria.Footnote 156
In these ways and others, consular internationalism raises the question, again and again, of what is ‘properly’ to be expected of a state, for whom state officials are working, and to whom they ought to be answerable. Why should Mexican nationals’ entitlement to legal aid funded by the Mexican state potentially be more generous when they seek that support outside Mexico than if they do so from within Mexican territory (if indeed that is the case; the studies cited above do not make this clear)? Why not expand Mexican legal aid entitlements domestically, in view of their expansion abroad via Mexico’s consular network? In the context of consular officials’ scrutiny of qualifications, assets, and community attachments, what is the justification for states valuing some forms of social and economic capital over others, and how do these values get reproduced in law and practice? These are among the questions of international law and political economy that consular internationalism raises afresh.
The destabilizing effect that consular internationalism may have on established patterns of entitlement and disentitlement internationally is part of what this article has metaphorized in its references to wormholes. In science and fiction (especially science fiction), a wormhole connects one place in space and time to another in ways occasioned by, yet not determined by, the prevalence of massive objects nearby: objects that in international law might translate to states and international organizations.Footnote 157 In vermiculture (cultivation of worms for environmental management or agricultural purposes), wormholes are conceived of quite differently and their morphology and transience vary by species.Footnote 158 They are biogenic: products of worms’ activities of digging and digesting – their wavelike burrowing and secretion of casts (comprised of nutrient-rich soil passed through a worm’s stomach). They are also biogenerative: the continuous construction and destruction of wormholes aid dispersal of air, water, and nutrients throughout soil and organic matter, with important ecological implications.
The foregoing metaphor captures something of how consular internationalism perforates international law’s signature configurations of international legal order. Consular internationalism is juris-genic and juris-generative as Sections 2 and 3 showed, respectively. And these dynamics often do not conform to international law’s classical topographies: its typical approach to territoriality; preoccupation with apex officialdom (views and actions of heads of state, foreign ministers, and captains of industry); or distributive presumptions (that is, how international law anticipates resources being ‘properly’ meted out worldwide, namely on the basis of official policies adopted and enforced within the bounds of national jurisdiction, or otherwise by states’ agreement). Consular internationalism fragments territory and anticipates multijurisdictional attachment; foregrounds the work of mid-level officials and those with semi-official status (such as honorary consuls); and effects international resource-distribution through combinations of governmental and commercial, formal and informal, public and private action.
Even as consular internationalism takes shape through claim and struggle, and the ensuing opening and closing of legal wormholes, it often reinforces structural inequalities globally, as already noted. To enter the domain of consular internationalism at all, people need to cross a border, or make plans to do so, and borders are powerful techniques of sorting and selective control.Footnote 159 Interactions with consular officials are often contingent on visa requirements and related entitlements the distribution of which correlates closely with other forms of inequality; ‘[t]he richer the country of origin, the more visa-free travel options its citizens enjoy’.Footnote 160 Disparities of wealth, class, and residency status often intertwine with those of gender, sexuality, and race in consular interactions.Footnote 161 Consular internationalism may open inequality to question: by drawing attention to the difference between relative entitlements ‘at home’ and abroad, for instance. Yet it also expresses new or compounded manifestations of inequality.
What the disjunction between consular internationalism and diplomatic internationalism may occasion, nevertheless, is the prospect of one dimension of structural bias being set against another. This may open a way for ‘transformative action’ against bias, as Koskenniemi has suggested, although international law does not assure this prospect.Footnote 162 In this respect, consular internationalism is a counterpart to the ‘actually existing cosmopolitanism’ that Karen Knop discerned in common law private international law renderings of citizenship.Footnote 163 It is to these kinds of contrapuntal possibilities, and the problems that consular internationalism presents for international law, to which the next section turns.
5. Consular internationalism in international law: Possibilities, problems, conclusion
5.1. Possibilities
In creating wormholes of relation through hierarchies of diplomatic internationalism, consular internationalism holds latent anti-domination potential. This is manifest in the legal proceedings discussed in Section 3, through which otherwise marginalized figures – racialized immigrants and persons detained on counter-terrorism grounds, for instance – have sometimes gained the ‘ear’ of the state for a time: an intimacy long the preserve of the well-connected and well-resourced. People gaining the state’s ‘ear’ via consular officials also occurs routinely outside courtrooms.Footnote 164 Of course, even when turned at one’s request, the ear of the state may not be receptive or benevolent. The ambivalent impacts of power extended in an assistive mode (that is, in the mode of heeding, provisioning, and aiding) are not to be under-estimated. And, as the discussion of South African law in Section 3 made plain, states are often legally entitled to do nothing at all in response to a consular assistance request. Nevertheless, that consular internationalism opens routes for those of no rank to orient concern and potentially mobilize action on the part of government officials means that it retains some power-devolving, hierarchy-inverting potential.
Consular internationalism also allows for multiplicity and hybridity in peoples’ relationships internationally. This contradicts zero-sum renderings of statehood. In a consular world, one state can ‘perform consular services on behalf of another state’, assuming responsibility for another’s nationals.Footnote 165 For instance, the Swedish Embassy in Pyongyang provides consular services to US citizens in North Korea.Footnote 166 Consular cross-cultivation of legal relationships on the international plane does not, moreover, demand any weakening of national or sub-national allegiances. This is in marked contrast to a neoliberal approach to internationalism, aimed at weakening such allegiances, as encapsulated by Friedrich Hayek’s suspicion of ‘solidarity of interests’.Footnote 167
Consular internationalism’s allowance for concurrent solidarities that might otherwise be considered mutually exclusive holds potential for circumventing or unlocking logjams in international conflicts, even violent conflicts. For instance, ‘it is possible – although unusual – for a state to launch or maintain consular relations without also having agreed upon the establishment of diplomatic relations’.Footnote 168 After the Falklands War/Guerra de Malvinas, for example, Argentina and the UK resumed consular relations long before any restoration of diplomatic relations was considered possible.Footnote 169
Considering all the polysemic possibilities for international relationship that consular internationalism enlivens takes one back to the question of whether consular work is well understood, as it has been, as ‘[s]ituated… between the international [legal] system and global society’.Footnote 170 The foregoing discussion has shown otherwise, indicating that consular work does not just ‘respond[ ] to external pressures or events’ of societal origin. Rather it is ‘continually invented and reinvented internally’, generating and casting off different configurations of society in the process.Footnote 171 Consular internationalism underscores that international legal determinacy, including supposedly determinative law-society dynamics, are not easy to sustain.
5.2. Problems
Perils of consular internationalism have already been canvassed, among them, its propensity to compound inequality. Some worry, also, about the distorting effect, on states’ foreign policy decision-making, of ‘[h]ighly mediatized consular assistance’.Footnote 172 Given that relatively few who seek consular assistance can marshal the resources or contacts necessary to make something ‘[h]ighly mediatized’, this is a legitimate worry pertinent to the rise of what Achille Mbembe has called ‘private indirect government’.Footnote 173
Also problematic is the consular prioritisation of a tortious logic on the international legal plane. One influential view of tort regards it as concerned primarily with private administration aimed at civil recourse (that is, enabling an injured party to recover from whomever has legally wronged them).Footnote 174 Understanding the international legal field in such terms casts international law as compensatory for the excesses and shortcomings of national law and politics, rather than as a distinct sphere of juridical relation with its own collectivizing, imaginative possibilities. Insofar as consular internationalism encourages governments to be moved by the needs and claims of nationals seeking individualized recovery, rather than pursuing collectively thrashed-out understandings of common good, it risks propagating an impoverished, derivative understanding of the international legal field. This could have deleterious implications for the reach and potential of international legal work.
A related challenge is that consular internationalism’s rise, together with the insulation of consular decision-making from judicial and public scrutiny (described in Section 3), may signal a ‘quiet[ ] undoing [of] basic elements of democracy’ and, where commercial outsourcing of consular work is concerned, the ‘ever-growing intimacy of corporate and finance capital with the state’, as documented by Wendy Brown.Footnote 175 One stated aim of this article was to delink consular work from the logic of neoliberalism. Nonetheless, as noted above, consular internationalism threatens to diminish the pool of collective resources available for the conduct of internationalism in non-transactional modes. I worry, as Okano-Heijmans does, that ‘the share of collective goods assigned…to individuals for their personal use [in response to appeals for consular assistance] is beginning to impinge on the share at the disposal of government and public authorities for the collective benefit of society’.Footnote 176 There is a risk that climactically imperilled states could spend so much of their resources addressing the immediate consular needs of their nationals that they have insufficient resources to dedicate to sustaining collective life into the future, both human and nonhuman.
5.3. Conclusion
Scholars of political and social theory have analyzed at length the violent stratification that maintenance of international legal order demands, and the persistence, nonetheless, of pluralities that do not depend on any absolute convergence of identity, value, or class.Footnote 177 People on the move everywhere, especially racialized and oppressed peoples, have hard-won expertise on the difficulties of propagating such hybridized communities, as well as their life-sustaining potential. This article has shown consular internationalism to be far more open to ambivalent, plural attachments than international law in its predominant, diplomatic register, which openness is potentially something that may be further leveraged. Whether in courts or tribunals, and/or through broader social organizing (of which Section 3 offered examples), the popular confrontations with hierarchy that consular internationalism occasions have sometimes moved the law in novel directions. The argument of this article is that consular internationalism offers people a legal vocabulary and ‘store of technicalities’ that could aid such endeavours.Footnote 178
This article began with the disjunction between two internationalisms, styled schematically as diplomatic and consular. Its starting premise was that the latter has been subordinated to the former, but that consular internationalism is of growing significance in international affairs. Section 2 canvassed how these two versions of internationalism differ, with attention especially to their expression in the VCDR and VCCR. Section 3 examined some controversies provoked by consular work by looking at plaintiffs’ efforts in several national jurisdictions to contest consular decision-making and subject it to judicial review. This precipitated delving further into what might make consular internationalism such live terrain of struggle; Section 4 explored some theorizations of international law, and law’s relationship to political economy, that emerge in and from consular work. Section 4 employed a metaphor to convey this potentiality of consular internationalism: namely, its propensity to make and remake legal wormholes allowing for community organizing within international law and possible challenging of its unequal effects. Finally, this section has reflected on the possibilities and problems that may be associated with foregrounding a consular optic in international legal work.
It may seem paradoxical to identify such possibilities with consular internationalism given its frequent association with behind-the-scenes power and antidemocratic politics. In 2022, for example, the International Consortium of Investigative Journalists, together with ProPublica and others, reported on five hundred instances worldwide of current and former honorary consuls being accused of crimes, corruption, or supporting authoritarian regimes, noting little public transparency surrounding their appointment or work.Footnote 179 More recent revelations of the anti-immigrant Law and Justice party in Poland running a visa-for-bribes rort underscore the sense, in many jurisdictions, that consular work is synonymous with elite impunity.Footnote 180 Migration researchers have also shown consular officials to be profoundly implicated in the racial politics of migration control.Footnote 181 There are, of course, countless stories of consular officials doing solidaristic work for the least advantaged, but the labour in question is often characterized by states as market-responsive customer service.Footnote 182 Consular relations do not comprise an obvious resource for advancing radical or progressive counter-imaginings of international legal order.
Yet, it may be precisely the fact of consular work being so entwined with global forces with which international lawyers have struggled to grapple effectively that makes it counterintuitively generative for international lawyers to think and work with.Footnote 183 The international legal repertoire addressed to inequality ought not to be restricted to criminalization, public shaming, or human-rights-informed programmes of equity, diversity, and inclusion. It ought not to be dominated by vocabularies of incremental tinkering among the usual suspects. International legal practice is far more plural than such tactics would suggest. One could take the rise of consular internationalism as a harbinger of the unstoppable march of ‘private indirect government’.Footnote 184 Or one could understand consular internationalism as making room for further expansion – through litigation, community organizing, and more – of egalitarian possibilities immanent in the international legal field. This article is aimed in the latter direction.
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