Sending State Research Articles

Implementation Of The Principle Of Immunity For Consular Posts Of The Sending State In The Receiving State

The consular representative building is an extraterritorial territory of the sending country, and the sending country has jurisdiction over that territory. The trespassing incident that occurred at the Indonesian Consular Post by unknown people in Melbourne during 2017 to 2020 period was a violation of existing immunity rights. Based on the concept of diplomatic immunity, the receiving state must protect foreign consular posts in its territory. The method used in this research is a normative juridical research method. The data used is secondary data. Data is presented qualitatively and analyzed descriptively. The results of this research are that trespassing and raising the Morning Star flag is a form of "disturbance of the peace of consular post." Because of this incident, Australia is still unable to protect the building of the Indonesian Consulate General in Melbourne as an implementation of special duty Article 31 paragraph (3) of the Vienna Convention 1963, during the second Morning Star flag-raising incident, gave rise to state responsibility obligations. The suggestion from this research is that there needs to be a joint commitment to implementing the provisions of the 1963 Vienna Convention through a written cooperation mechanism procedure.

When Do States Repatriate Refugees? Evidence from the Middle East

AbstractWhich conditions affect whether a state will choose to repatriate forcibly displaced populations residing within its borders? One of the most pressing issues related to the protracted Syrian refugee situation concerns the future of over 5 million Syrians who sought shelter in neighboring states. With host countries pursuing disparate strategies on Syrians’ return, the existing literature has yet to provide a framework that is able to account for variation on host states’ policies toward refugee repatriation. In this paper, we expand upon the concept of the refugee rentier state to theorize inductively upon the conditions shaping states’ policymaking on repatriation. We draw upon multi-sited fieldwork across the three major refugee host states in the Eastern Mediterranean (Jordan, Lebanon, and Turkey) to establish that a refugee rentier state's strategy is driven by domestic political economy costs related to the hosting of refugee populations as well as its geostrategic interests vis-à-vis these refugees’ country of origin. Using a comparative case study approach, we note how a state is more likely to pursue a blackmailing strategy based on threats if it faces high domestic political economy costs and adopts an interventionist policy vis-à-vis the sending state, as in the case of Turkey. Otherwise, it is more likely to pursue a backscratching strategy based on bargains, as in the case of Lebanon and Jordan. We conclude with a discussion on how this framework sheds light on refugee host states’ repatriation policies on a global scale.

The Philippines and seafaring labour export: State, non‐state and international actors in the assembly and employability of Filipino seafarers

AbstractBased on interviews, this article examines the Philippines as a sending state from the perspective of seafaring labour export. It analyses how the outsourcing of seafaring labour and global regulation of standards of seafarer education, training and certification have broadened and deepened the involvement of international actors in Filipino seafaring labour. It situates these developments in two phases of seafaring labour migration, thereby clarifying the role of these international actors and their relationship with state and non‐state actors. These international actors have influenced Philippine policy on seafaring labour and employment, are vitally involved in assembling Filipino seafaring labour through their investment in maritime education and training and are determining Filipino seafarers' employability through their inspection of Philippine compliance with the STCW convention. Compliance with this international instrument mobilised the state to reshape the functioning of its agencies to revitalise its capacity as a sending state.

Review of “The Border Within: Vietnamese Migrants Transforming Ethnic Nationalism in Berlin”

Phi Hong Su asks a question of enduring interest to migration scholars and students of nationalism: How do ordinary people, thousands of miles from their homeland, make sense of their membership in a distant nation? Su adds two absorbing, creative wrinkles to this question by using a research design that sets The Border Within apart from prior scholarship. First, she focuses on two migrant streams that left the same country at roughly the same time, but which migrated with diametrically different motivations and political views. South Vietnamese migrants, ferociously anti-Communist, understand their movement as seeking refuge due to persecution and their irreconcilable political opposition to the sending state. North Vietnamese migrants, contract laborers leaving a victorious regime, were celebrated by both sending and receiving states for their work and, through it, their contribution to Communist ideals. Second, Su places these dual Cold War migrations within a single receiving context, Berlin, a city also divided along regimes and ideologies. As Su underscores, now in the 21st century, after the end of the Cold War and in a reunified Germany, “the undoing of physical borders did not similarly undo social ones” (p. xiii). The book asks why the homeland fractures that divided Vietnamese before their migration persist in their new home, and how such different views of nation and membership continue long after the geopolitical events that created them have changed.

Constraining Tamil Transnational Political Action: Security Governance Practices beyond the Sending State

AbstractThis paper examines the security governance of the Tamil diaspora through a practice lens. It takes as its starting point the observation that the Tamil diaspora community has historically been subjected to complex and multi-scalar security governance. How this continues after the end of the Sri Lankan civil war period remains empirically and theoretically underexamined, with studies focusing instead on Tamil diaspora organizing. This paper addresses this gap by mapping and theorizing contemporary constraints to Tamil transnational political action (TPA), building on the growing literature on the transnational repression of diaspora. Further, it proposes to move beyond the state-centrism and liberal bias inherent in this literature, by centering security governance practices. Based on a review of existing literature and historical and ethnographic data collected through mixed-method fieldwork among the Tamil diaspora community between 2015 and 2018, this paper concludes that key security governance practices that constrain Tamil TPA, such as proscription, counterterrorism policing, and formal diplomatic practices, have continued since the end of the civil war, each revealing complex global security entanglements beyond the diaspora sending state.

Migration and the Demand for Transnational Justice

Domestic courts sometimes prosecute foreign nationals for severe crimes—like crimes against humanity, genocide, torture, and war crimes—committed on foreign territory against foreign nationals. We argue that migrants can serve as agents of transnational justice. When migrants move across borders, as both economic migrants and refugees, they often pressure local governments to conduct criminal investigations and trials for crimes that occurred in their sending state. We also examine the effect of explanatory variables that have been identified by prior scholars, including the magnitude of atrocities in the sending state, the responsiveness of the receiving state to political pressure, and the various economic and political costs of prosecutions. We test our argument using the first multivariate statistical analysis of universal jurisdiction cases, focusing on multiple stages of prosecutions. We conclude that transnational justice is a justice remittance in which migrants provide accountability and remedies for crimes in their sending states.

Emigration and the Transnationalization of Sending States’ Welfare Regimes

How does emigration affect sending states’ welfare policies? Existing migration literature has identified numerous political, economic, and institutional variables that influence sending states’ approaches towards emigrants’ welfare. However, this literature has neglected broader processes of social transformation in sending states. Using the concept of welfare regime transnationalization, we show more precisely how emigration transforms welfare regimes in their functional, distributive, normative, and politico‐institutional dimensions. This process is nonetheless strongly constrained by domestic politics. To illustrate our analytical framework, we discuss the transnationalization of health policies in Turkey and Mexico.

Beyond Tehran and Nairobi: Can Attacks against Embassies Serve as a Basis for the Invocation of Self-defence?

Abstract Forty years have elapsed since the Iran hostage crisis, yet the question whether a state can lawfully resort to force in reaction to an attack against its diplomatic or consular mission remains unanswered. This issue is subject to contradictory scholarly interpretations, whereas self-defence as a justification regularly reappears in state practice. A recent example is provided by the US position regarding the killing of Qasem Soleimani in January 2020. This article revisits this controversial issue from an empirical perspective, focusing on extensive analysis of state practice based on 730 incidents. Both the empirical and the theoretical inquiry led the authors to call into question the possibility that states may lawfully rely on self-defence in such circumstances. Only one state has ever invoked self-defence regarding attacks against its embassies, and it only did so on five occasions, which were all contested by the international community. In all other 725 instances, the sending state and the international community reacted in ways other than the use of force. This research also analyses these various responses triggered by attacks against embassies. Moreover, it is virtually impossible to prove the fulfilment of the necessity and proportionality criteria of the action taken in self-defence in light of state practice over the last 70 years. Finally, this article also calls for a close re-reading of the Tehran Hostages judgment to challenge the judgment’s widely accepted interpretation as recognizing self-defence in such situations.

Migrating beyond networks: the mechanisms of sending state intervention

ABSTRACT This article analyzes the mechanisms through which sending state policies intervene in labor migration flows. Relying primarily on data from the Philippine state’s system of overseas contract migration, this article compares the main modalities of sending state intervention with those identified by the dominant theories of migration causation – social capital/migrant networks theory, which posits that the linkages between sending and receiving countries facilitate migration flows. Sending state policiesmimic or complement the two main mechanisms of migration facilitation: risk/cost mitigation and the initiation of contacts. They offer more formalized variations of the information distribution and material support that occurs through migrant networks, and serve as a useful, and sometimes necessary, counterpart to receiving states that are seeking to solve labor market challenges or to exert more control over existing migration flows. Finally, sending state can go beyond existing linkages through the explicit targeting of particular markets and the development of domestic human capital.

Pertanggungjawaban Hukum Terhadap Tindakan Agen Diplomatik Dari Negara Pengirim Yang Melakukan Spionase Di Negara Penerima

Abuse of authority by diplomatic officials from member countries of the 1961 Vienna Convention for personal gain or certain groups is still common. This situation is undoubtedly contrary to their duties and functions as representatives of their country. The formulation of the problem raised is how to form a legal settlement based on the 1961 Vienna Convention and the Optional Protocol concerning the Requirement to Settle Disputes. The research method used is a normative juridical type with a Legislative, Conceptual, and Case approach. The primary legal materials used are the Vienna Convention On Diplomatic Relations April 18, 1961, and the Optional Protocol Concerning the Compulsory Settlement Of Disputes Of Vienna Convention On Diplomatic Relations; Meanwhile, the secondary legal materials used are books, research journals, research reports, various scientific works, articles and various other sources that can support primary legal materials; Tertiary legal materials consist of dictionaries, internet, and so on that can support primary and secondary legal materials. The results of this study indicate that apart from Persona non-Grata, there are other ways to impose sanctions on diplomatic agents who abuse their authority, in this case, espionage activities.
 Keywords: Diplomatic Agent; Espionage; Sending State

Transnationalism and the Politics of Sending States: The Cases of Italy, Mexico, Turkey, and Ecuador

Transnationalism and the Politics of Sending States: The Cases of Italy, Mexico, Turkey, and Ecuador

Non-refoulement principle’s validity during the COVID-19

In the article, the author try to answer the question: «Under what conditions a repatriation of an asylum-seeker, suffering from coronavirus, to the country of origin is legal?». The author came to the conclusion that the refoulement’s decision towards an asylumseeker suffering from coronavirus should be adapted case by case. However, the sending state is bound to carry out a preliminary investigation, assess the present situation, and prove the lack of the serious, rapid, and irreversible decline in his state of health regarding expulsion. With respect to the investigation, the following criteria should be considered primary infection or reinfection, a course of the disease, a pathogens level, a specific coronavirus strain, and others specified by the author because they directly affect the risk.

Environmental responsibility and Rohingya refugees: potential grounds for justice

ABSTRACT In response to extreme violence by Myanmar, over one million Rohingya refugees have flooded into Bangladesh, resulting in massive scale deforestation, land erosion, farmland degradation, and destruction of animal habitat, along with the Rohingya being denied basic environmental protections. Because neither Bangladesh nor the Rohingya are responsible for this environmental calamity, a variety of environmental legal claims can be raised against Myanmar, serving as grounds for proper redress to both the receiving state and the refugees therein. This paper highlights the emergence of environmental law as a basis for finding a sending state liable for the environmental impact and damage that it has caused to the receiving state and refugees due to the creation of a refugee crisis.

Shifts in the global migration order and migration transitions in Europe: the cases of Turkey and Russia

This paper takes as a premise that world economics, world politics and global labour are changing and that whilst migration is a driver as well as a consequence of change it is changing, too. For long, conventional research focussed on north-north and south-north migrations, like across the Atlantic or from agricultural and industrialising to industrial countries. This was in part inspired by the economic and political dominance of the ‘global north’, but also driven by a western and Eurocentric bias. Meanwhile, a long period of economic and political transformations and turbulences gave rise to new economic powers, diversified the sending-receiving country matrix and thus fundamentally changed the determinants for international migration. I elaborate the concepts migration order and migration transition to argue that these are useful for analysing the changes in the configuration of sending, receiving and transit states. To illustrate the argument, this article takes Russia and Turkey and developments from the early 2000s as case studies and analyses the shifts in the regional and global migration flows.

Operation ‘Bring Them Home’: learning from the large-scale repatriation of overseas Filipino workers in times of crisis

ABSTRACT In crisis events such as wars, natural disasters and epidemics, migrant workers are among the hardest hit and most vulnerable to displacement, unemployment and the loss of income. The coronavirus pandemic has drawn attention to the role of sending states in protecting labour migrants during disruptions, particularly by returning them to countries of origin. This article highlights the understudied aspect of repatriation, which needs to be unpacked as a process involving actors, policies and practices that shape a sending state's capacity for migrant protection. Through data and document analysis, the article examines the Philippines' experience of repatriating Filipino migrant workers from host countries during crises, focusing on three points. First, institutional and legislative policies configure repatriation in the Philippines' migration system as a process of facilitated return and assistance. Second, past crisis events show how the government's large-scale repatriation efforts adapted to specific situations, but also faced challenges with operational and resource capacities. Third, repatriation in the COVID-19 crisis suggests that a critical post-arrival phase of assistance remains underdeveloped. The discussion reveals the uneven approach of the sending state, which has built a comprehensive system of labour export, but a less coordinated repatriation system and an less fortified reintegration policy.

(Self-)Confidence, Migration, and the State: A Study of Emigration from Latvia

How do Latvian emigrants’ emotional apprehensions of social and cultural change in post-Soviet Latvia, and the contrasting experience they gain abroad, affect their relationship with the Latvian state and their ongoing emigration status? By contrasting the personal narratives of 59 emigrants with the Latvian state’s public transformation discourse, we argue that the culture the sending state presents to its public—both in its official discourse and day-to-day interactions with civilians—and the emotions this triggers in people based on their everyday life experiences, deepens our understanding of the post-Soviet emigration regime. Specifically, how state discourse and interactions affect feelings of recognition and the related emotions of confidence (particularly, self-confidence), pride, and shame are important for understanding post-Soviet emigration. Exaggerated neoliberal notions of the “West” dominated both the post-Soviet civil discourse and the policies and practices implemented to guide the transition, fashioning an environment where people felt shamed, and their self-confidence was injured. However, emigration and growing confidence in receiving states helped many regain a sense of comfort, self-confidence, and empowerment.

Trial of Foreign Nationals: Distinction between Consular and Diplomatic Assistance toward Capital Punishment, ‘A Case Study of Australian Nationals Facing Capital Punishment in Indonesia’

The movement of foreign nationals has recently entered a new level of relationship between government. A great number of foreign national's travel or live abroad than before is the main issues. The protection of nationals when they are abroad is accepted as an important function of government. States recognize each other's right to exercise protection over their own nationals. Protection is affected through a consular official assigned assign by the state origin. The state that appoints a consul is called the sending state while the state in which the consul works is called the “receiving” state. Sending state consul visit sending-state nationals in receiving-state jails. However, the question remains on how the government and the foreign nationals fulfilling the right and obligation to one another. One of the common situations is when foreign nationals being detained abroad. Furthermore, how consular and diplomatic functioned toward capital punishment that Herein lays the paradox, I would like to argue on how one country should fulfill its obligations under the international law (Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations). Hence, the case illustrates how receiving and sending state fulfilling their responsibilities.

Peacekeeping Deployments and Mutinies in African Sending States

AbstractResearch on host-country effects of peacekeeping deployments has highlighted destabilizing consequences for contributing states, suggesting that deployments can increase the willingness and ability of soldiers to mutiny or attempt coups. Yet others expect that peacekeeping contributions may bring a variety of benefits, including improved civilian control of the armed forces. We reconcile these conflicting assessments in two ways. First, we identify important differences across peacekeeping organizations. Missions undertaken by the United Nations (UN) are generally better funded and equipped, invoke selection criteria that should produce fewer grievances than missions operated by regional organizations, and may be more risk averse. The benefits or hazards of peacekeeping can thus vary substantially, leading to different consequences for organizations. Second, the pros and cons of peacekeeping can incentivize mutinies and coups differently. When grievances are present, financial incentives of peacekeeping may prompt soldiers to prefer mutiny over coups to avoid being disqualified from future participation. We assess these expectations for African states’ participation in UN and non-UN peacekeeping operations from 1990 to 2011. We find no evidence that UN peacekeeping deployments increase mutiny risk, while non-UN deployments have a positive effect on the occurrence of mutiny. These findings remain robust across a large number of model specifications.

The Conflict of Jurisdiction Between the Sending State of Foreign Military Presence and the International Criminal Court: Taking the Situation in Afghanistan as an Example

In March 2020, the Appeal Chamber of the International Criminal Court formally authorized the Office of Prosecutor to investigate the situation in Afghanistan, and the most concern of the situation was the international crimes committed by the US military in Afghanistan. The International Criminal Court has been subject to disputes over the exercise of jurisdiction over non-parties in the United States, and in accordance with customary international law, military personnel enjoy Immunity <i>Ratione Materiae</i> in foreign courts, and in the case of Afghanistan, there is exclusive criminal jurisdiction granted to the United States by the US-Afghanistan bilateral Status of Forces Agreement, So that the jurisdiction of the United States and the International Criminal Court may conflict. Although military personnel’s criminal immunity may be able to adjust to the jurisdiction of the International Criminal Court, when exclusive criminal jurisdiction based on bilateral treaties conflicts with the jurisdiction of an international court based on a multilateral convention, the Rome Statute, the International Criminal Court need to rely on treaty interpretation and treaty conflicts to solve the issue of jurisdiction.

Easy Read: Immunity of International Organisations, Diplomats and Consular Agents from Local Suits under Nigerian Law

Immunity of International Organisations, Diplomats And Consular Agents From Local Suits under Nigerian Law is a long established principle of International Law which basically states that a representative of a sending state cannot be dragged to court of the receiving state. The basis of which is, amongst others, to accord the officials of the sending states the same privileges enjoyed by officers of the receiving state in the sending state. International law is replete with alternative theories attempting to justify the practice of diplomatic immunity, the most popular of which are personal representation, the theory of extraterritoriality and the theory of functional necessity. The aim of this paper is to attempt a comparative examination of the extent of immunity and privileges enjoyed by Diplomats, Consular Agents and International Organisations under the applicable law with particular reference to Nigerian jurisprudence. The paper is divided into four parts. Part one introduces the paper and discusses briefly, the theories of immunity; Part two discusses the two major approaches to immunities—Absolute Approach and Restrictive Approach. Part three discusses the Vienna Convention on Diplomatic and Consular Immunites. Part four criticizes the local law—Diplomatic Immunities and Privileges Act, 1962 through applicable cases.