Participation and the Protection of Citizens Abroad 31102016

194 Pages·2016·1.6 MB·English

by  Suzanne Akila

Participation and the Protection of Citizens Abroad in
International Law

Suzanne Akila

November 2015

A thesis submitted for the degree of Doctor of Philosophy of
The Australian National University

Declaration

I hereby state that this thesis is entirely my own original work and has not been
submitted for any other degree at any other university or educational institution. All
sources of information have been indicated and due acknowledgement has been given to
the work of others.

Signed:

Suzanne Akila

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For Sufyan and Laila

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Acknowledgements
Completing this thesis has been one of the most enriching experiences of my life. It is a
privilege to spend three and a half years researching a topic I am passionate about. It
has brought me great intellectual stimulation, the pleasure of working in a fantastic
academic environment, and the chance to do interesting fieldwork all over the world.
Working with Hilary has been central to the positivity of my experience. Hilary is
generous and kind, always making time to give her students a unique journey. For
example, even though she was travelling to complete her duties as judge ad hoc at the
International Court of Justice, she made time to meet with me in The Hague when I
was conducting interviews. I went to the first day of hearings in the Whaling case and
at the break, Hilary popped out into the foyer to invite me to lunch in the judges’ dining
chamber. Well, I nearly died with excitement. Sharing that meal with Hilary is a
memory from my PhD I will treasure. She has given me so much of her time, and
always with a sense of humour and care. I will fondly remember our meetings,
including the one where I compiled a list of all of Hilary’s ‘no-no’ words (proactive,
utilise, key...). I am grateful to her for making me a better writer, academic, and lawyer.
I am also indebted to my panel, Natalie Klein and Kim Rubenstein for their time and
comments on my chapters.
I have been fortunate to be surrounded by wonderful colleagues at RegNet and at the
Law School. Being at RegNet has pushed me to be a better interdisciplinary scholar and
towards a more dynamic understanding of law and its role. I thank Veronica Taylor for
that especially. I thank my cohort, Shane, Jacky, Nara, Seung and Kamalesh. You have
provided me with so much support and the chance to laugh when things were tough. To
my other colleagues, Ben, Emma, Marie-Eve, Kylie, Michael, Christoph, Michelle,
Cynthia, Christian, Mel, Gemma, Ellie, Fleur, Angelia, Howard and Peter, I appreciate
all that you have done for me.
I am grateful to the Sir Roland Wilson Foundation for the opportunity to complete this
research through its PhD programme. I was selected in the inaugural year of the
programme, and it has been a privilege to complete a thesis that the Board and the
Australian Public Service deemed to be a matter of enduring national interest. I am
especially indebted to Joan Uhr, Lauren Bartsch and Michael Wesley. Bill Campbell,
my mentor in the programme, has been a constant source of inspiration and guidance.
Bill has generously made himself available to debate the finer points of non-State actor
involvement in international law, the Australian system of protection, and the role of
the government legal advisor. I’m grateful to my colleagues at the Office of
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International Law at the Attorney-General’s Department for their enthusiasm and
encouragement throughout my time away, especially Anne Sheehan and John Reid.
To my friends in The City of Dreams (Canberra), thank you for your patience with me.
To my family, Mum, Dad, Rami, Randa and Kareem, any capacity I have to achieve
anything in my life, it is because of you. Thank you for loving me unconditionally and
for calling me each week to remind me how much you care and support me. Mum and
Dad, your photo sat on my desk and whenever I was down or felt that I faced a wall, I
would remember what you endured and all you have sacrificed in order for us to have a
better life. Thank you for all you have done and for instilling in me a sense of resilience.
Finally, to Toby, the love of my life. At the start of 2011, you sent me the call for
applications for the SRWF scholarship. You believed in me right from the start. Despite
years of distance, from New York to Canberra, you gave a tremendous amount of
support and love. You read every word I wrote, stayed up nights with me to proofread
and debate ideas. And although you said I was ‘an opinionated, argumentative delight’,
I am grateful everyday that I am your opinionated, argumentative delight. You make
me better, and for that, I am eternally grateful.

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Abstract

While the concept of protecting citizens abroad is a familiar one in public debate and
international law, the practice of protection is little studied. Two ideas define the way in
which the protection of citizens abroad is understood. Since the early twentieth century,
international legal scholarship has contemplated the protection of citizens abroad
through the decisions of international courts and tribunals. Many legal and non-legal
measures may be taken to protect a citizen from a violation of international law abroad,
yet scholars focus their attention narrowly on international legal cases. The second idea
is that protection is a State enterprise. States may be praised for their interventions on
behalf of their citizens or lambasted for their inaction. Scholarly analyses focus almost
exclusively on State behaviour and preferences, without considering how other actors
may influence, drive or inhibit protection. These framing ideas, international litigation
as protection and a focus on States as protective actors, obscure other dimensions of
protecting citizens from violations of international law abroad.

This thesis investigates the nature of participation in the protection of citizens abroad
and its significance for international law. It explores the actors who drive and deliver
the protection of nationals, the behaviours that constitute the practice of protection, and
the motivating factors for protective behaviour. The purpose of the study is to better
understand the phenomenon of protection. The thesis examines examples of protection
by Germany, Mexico and Australia. I observe that the protection of citizens abroad is a
multi-actor phenomenon, where networks of actors form together to produce protective
outcomes. Where there is an alignment of values and the opportunity to harness
expertise, networks may form to devise strategies of intervention and perform tasks of
protection. I propose that, in order to better account for participation in the international
order, a more complex view of sovereignty is needed. I argue that the protection of
citizens abroad is best understood through the concept of distributive sovereignty,
whereby States distribute and delegate their protective functions across a network of
State and non-State actors.
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