Switzerland provides its nationals abroad with diplomatic and consular protection, according to which it will either act on its own behalf or on behalf of its nationals. In practice, Switzerland provides mostly consular protection as the conditions for extending diplomatic protection are stricter.
Diplomatic and consular protection
Diplomatic protection is where the home state intervenes on behalf of its nationals who suffer a violation of international law by the host state. In this case the home state acts on its own account as it is considered to be the injured party. The foundations of diplomatic protection were explained in 1924 by the Permanent Court of International Justice in the Mavrommatis case.
Three criteria must be in place for a state to extend its diplomatic protection:
- the proper nationality of the injured party
- a breach of international law by the host state
- exhaustion of local remedies
A state is entirely free to extend or to refuse diplomatic protection. International law places no obligation on a state to extend diplomatic protection to its nationals. There is no norm of Swiss law which gives its nationals a personal and subjective right to diplomatic protection. It is the Federal Council that has the authority to grant diplomatic protection. The sole restriction on its discretionary powers is the prohibition on the arbitrary use of power. The Federal Supreme Court jurisprudence recognises the possibility of contesting a refusal to grant diplomatic protection Federal Supreme Court decision 130 I 312, p. 317 s).
Consular protection is where the home state helps its nationals to defend their rights in accordance with the legal system of the host state. In this case the home state acts in the name and on behalf of its nationals. Swiss representations abroad provide consular protection for example by intervening with the relevant authorities of the host state.
In order to receive the support and assistance of consular protection, the person or company concerned must have a genuine connection with Switzerland.
Consular protection in special cases:
- Switzerland can also extend consular protection to persons with dual nationality in their other state of nationality, particularly if their life or health is in danger (for example, as a result of torture or detention in inhuman conditions).
- A state can also extend consular protection to refugees whom it has recognised as such and who are temporarily abroad. This does not require the consent of the country being visited. The principal justification for this provision is that, since the refugee is no longer effectively protected by his/her state of nationality, it is up to the country of refuge to do so.