Andrew Farran writes:
A comment on the item Australia's Consular Conundrum in Dubai, in particular the concluding observation: 'There is no doubt that the Australian Government, and its diplomats, will do their best to assist Mr Joyce and his family. But there is a doubt that their efforts will be successful, and that is a message that must be made clear to Australian citizens overseas.'
It is by no means the case that representations, government to government, should be the end of the matter where there has been a flagrant abuse of process in the target state. Dubai, like Australia, is bound by international law, a rule-based system on which Australia, and presumably Dubai, relies for its security and wellbeing in many respects, more so now that Qantas is so closely tied up with Dubai in their airline operations.
While in general governments should defer to the legal processes of the country where a citizen is detained, this principle is not absolute, especially where there are indications of a failure of natural justice or other factors that would taint a legal process.
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Exceptions are well known and date back at least to early last century, and upheld by international courts and tribunals since, as stated in the 5th Edition of Oppenheim's International Law:
'It is a well established principle that a State cannot invoke its municipal legislation as a reason for avoiding its international obligations. For essentially the same reason a State, when charged with a breach of its international obligations with regard to the treatment of aliens, cannot validly plead that according to its Municipal Law and practice the act complained of does not involve discrimination against aliens as compared to nationals. This applies in particular to the question of the treatment of the person of aliens. It has been repeatedly laid down that there exists in this matter a minimum standard of civilisation, and that a State which fails to measure up to that standard incurs international liability.'
As noted, international law in this respect has not retreated since that statement, though too commonly it is honoured more in the breach than in its observance. Given the increasing level of trade and investment between Australia and the UAE, most evidently recently in the field of aviation, it is vital that there be confidence in our respective legal processes.
We believe that the Australian community should be assured that its citizens, when faced with situations of this nature, will be assisted with the full diplomatic resources of their government, and if that fails the defaulting state should be made aware of its responsibilities and incur full international liability for its failures, a consequence that should have repercussions for its international standing more widely.