Diplomatic Protection and State Responsibility

Meaning of Diplomatic Protection

Diplomatic protection is a mechanism under international law through which a State invokes the international responsibility of another State for an injury caused by an internationally wrongful act to one of its nationals.

When an individual or company suffers injury because another State violates international law, the individual’s State of nationality may, subject to the applicable rules, take up the claim against the responsible State.

The important point is that diplomatic protection is ultimately a right of the State, not an international judicial right automatically belonging to the individual.

Basic Structure

Internationally wrongful act by State A

↓

National of State B suffers injury

↓

State B exercises diplomatic protection

↓

State B invokes State A’s international responsibility

↓

State A may be required to provide reparation

Diplomatic Protection and State Responsibility

Diplomatic protection is closely connected with the general law of State responsibility.

Normally, State responsibility arises when:

Attribution + Breach

↓

Internationally wrongful act

But where the wrongful act causes injury to a foreign national, the national’s State may invoke the responsibility of the offending State through diplomatic protection.

Therefore:

Diplomatic protection = A mechanism for invoking another State’s international responsibility in respect of injury to nationals

Nature of Diplomatic Protection

Diplomatic protection should not be confused with ordinary diplomatic assistance.

It is a legal mechanism under international law.

A State exercising diplomatic protection is asserting its own international claim against another State, even though the claim arose from injury suffered by its national.

This principle was famously expressed by the Permanent Court of International Justice in Mavrommatis Palestine Concessions.

Mavrommatis Palestine Concessions

In Mavrommatis Palestine Concessions (Greece v United Kingdom), the Permanent Court of International Justice stated the classic principle that when a State takes up the case of one of its nationals and resorts to diplomatic action or international judicial proceedings, the State is asserting its own right to ensure respect for international law in the person of its national.

Exam Importance

Mavrommatis → Diplomatic protection is a right of the State

This is one of the most important principles in the topic.

Diplomatic Protection and Nationality

The most fundamental requirement is generally the existence of a nationality link between the injured individual and the State exercising diplomatic protection.

The State must ordinarily establish that the injured person is its national under international law.

Thus:

Injury to national

Nationality connection

↓

Potential diplomatic protection

Continuous Nationality

Under the modern law of diplomatic protection, nationality generally needs to exist both:

• when the injury occurred; and
• when the claim is formally presented,

subject to the applicable rules and exceptions.

This principle is often referred to as the continuity of nationality requirement.

The rationale is to prevent a person from acquiring nationality solely for the purpose of pursuing an international claim relating to an earlier injury.

Nottebohm Case

The Nottebohm (Liechtenstein v Guatemala) case is one of the most famous cases concerning nationality and diplomatic protection.

The ICJ considered whether Liechtenstein could exercise diplomatic protection on behalf of Friedrich Nottebohm against Guatemala.

The Court placed emphasis on the existence of a genuine connection between Nottebohm and Liechtenstein in the circumstances of that case.

Important Caution

The Nottebohm judgment should not be understood as establishing a universal rule that every nationality must always satisfy a general “genuine link” test for diplomatic protection.

Its reasoning was closely connected to the particular circumstances and the question of whether Liechtenstein’s nationality could be relied upon against Guatemala in that case.

Exam Point

Nottebohm → Nationality and genuine connection

Exhaustion of Local Remedies

Another major requirement of diplomatic protection is the exhaustion of local remedies.

Generally, the injured national must first attempt to obtain an appropriate remedy through the legal system of the State responsible for the injury.

Only after available local remedies have been exhausted may the State of nationality ordinarily exercise diplomatic protection at the international level.

This principle is reflected in Article 44 ARSIWA.

Rationale for Exhaustion of Local Remedies

The rule gives the allegedly responsible State an opportunity to:

• correct the wrong;
• provide a domestic remedy;
• investigate the complaint;
• resolve the dispute through its own legal system.

Therefore:

Local remedies first → International diplomatic protection later

Exceptions to Exhaustion

The requirement is not absolute.

The rule may not apply where:

• effective local remedies are unavailable;
• available remedies are ineffective;
• circumstances recognised under international law make exhaustion inappropriate;
• the applicable international rule provides otherwise.

The precise application depends upon the circumstances of the case.

Barcelona Traction Case

The Barcelona Traction, Light and Power Company case is particularly important for diplomatic protection of companies.

Belgium attempted to exercise diplomatic protection in relation to injuries allegedly suffered by Barcelona Traction, a company incorporated in Canada.

The ICJ held that the right to exercise diplomatic protection of a corporation generally belongs to the State of nationality of the corporation.

In the circumstances, Canada was the relevant State of nationality of the company.

Exam Importance

Barcelona Traction → Diplomatic protection of corporations

The case is also important for the distinction between:

• nationality of the company; and
• nationality of its shareholders.

Protection of Shareholders

A corporation and its shareholders are legally distinct.

Therefore, injury to a company does not automatically give the State of nationality of every shareholder the right to exercise diplomatic protection on behalf of the company.

The Barcelona Traction judgment is the leading authority for this principle.

Example

If a company incorporated in State A is injured by State B:

State A → ordinarily relevant State for diplomatic protection of the company

A shareholder who is a national of State C does not automatically acquire the right for State C to bring a claim on behalf of the company merely because the shareholder suffered an indirect economic loss.

Diplomatic Protection and Direct Injury

Diplomatic protection is primarily concerned with injury to a national caused by an internationally wrongful act of another State.

The nationality State is therefore asserting an international claim connected to the treatment of its national.

This differs from a situation where the State itself is directly injured.

Article 18 ARSIWA

The ILC’s Draft Articles on Diplomatic Protection (2006) provide a detailed framework for the subject.

Article 1 defines diplomatic protection as the invocation by a State, through diplomatic action or other peaceful means, of the responsibility of another State for injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State, with a view to implementing such responsibility.

This definition is important for examinations.

Article 2 – Right of the State

The Draft Articles recognise that a State has the right to exercise diplomatic protection.

However, international law generally does not impose an absolute obligation on a State to exercise diplomatic protection whenever one of its nationals is injured.

The State therefore has considerable discretion in deciding whether to take up the claim.

Individual Cannot Automatically Compel the State

Diplomatic protection must be distinguished from an individual’s direct international claim.

A national may request assistance from their State, but international law does not generally make diplomatic protection an automatic right that the individual can compel the State to exercise.

The State decides whether to espouse the claim, subject to its own domestic law and applicable international obligations.

Nationality of Natural Persons

For natural persons, the State exercising diplomatic protection must generally establish that the injured person is its national.

The nationality must be determined according to the relevant rules of international law and domestic nationality law, subject to international limitations.

Multiple Nationality

Special issues arise where an individual has more than one nationality.

State of Nationality vs Another State of Nationality

The Draft Articles contain specific rules concerning multiple nationality.

Where a person has the nationality of more than one State, the ability of one State to exercise diplomatic protection against another State of nationality is subject to particular restrictions.

A State generally cannot exercise diplomatic protection against another State of which the injured person is also a national where the nationality of the State seeking protection is not predominant in the circumstances specified by international law.

The subject therefore requires careful consideration of the predominant nationality principle in the relevant situations.

Diplomatic Protection of Refugees and Stateless Persons

The Draft Articles also address certain situations involving:

• stateless persons;
• refugees.

The rules are designed to deal with exceptional cases where a person lacks the normal nationality link but has a sufficiently established connection with a State under the applicable legal framework.

These provisions should not be confused with the general rules of asylum or non-refoulement.

Diplomatic Protection of Corporations

Corporations generally have a nationality determined by the relevant rules of international law.

The State of nationality of the corporation may, subject to the applicable requirements, exercise diplomatic protection in respect of injury to the corporation.

Barcelona Traction Principle

The nationality of the corporation is generally distinct from the nationality of its shareholders.

This prevents multiple States from simultaneously asserting the same corporate claim merely because their nationals hold shares in the company.

Diplomatic Protection vs Consular Protection

These concepts are different.

Consular Protection

Consular officials may assist nationals with matters such as:

• detention;
• access to legal assistance;
• emergency documentation;
• communication with family;
• other consular matters.

Diplomatic Protection

Diplomatic protection involves a State-level claim under international law against another State for an internationally wrongful act causing injury to the national.

Consular assistance ≠ Diplomatic protection

Diplomatic Protection vs Human Rights Claims

Diplomatic protection is traditionally a State-to-State mechanism.

Modern international human rights law, however, provides certain individuals with the ability to bring claims directly before international or regional bodies where the relevant treaty and procedural requirements permit.

Therefore:

Diplomatic protection → State invokes responsibility

Individual petition mechanism → Individual may directly invoke treaty rights where permitted

These mechanisms can coexist but should not be confused.

Diplomatic Protection and State Responsibility

The relationship can be understood through the following structure:

State B’s national suffers injury

↓

State A committed internationally wrongful act

↓

Conduct attributable to State A

↓

Breach of international obligation

↓

State B establishes nationality link

↓

Local remedies ordinarily exhausted

↓

State B exercises diplomatic protection

↓

State A’s international responsibility is invoked

↓

Cessation / Reparation / Other consequences

Reparation Through Diplomatic Protection

Once diplomatic protection is successfully exercised and responsibility established, the responsible State may have to provide reparation.

The ordinary principles of State responsibility apply.

Reparation may include:

• restitution;
• compensation;
• satisfaction.

Thus:

Diplomatic protection → mechanism for invoking responsibility

Reparation → consequence of established responsibility

Important Cases

Mavrommatis Palestine Concessions

Principle: Diplomatic protection involves the State asserting its own international right in relation to injury to its national.

Exam use: Nature of diplomatic protection.

Nottebohm (Liechtenstein v Guatemala)

Principle: Nationality and the connection between an individual and the State exercising diplomatic protection.

Exam use: Nationality and genuine connection.

Barcelona Traction (Belgium v Spain)

Principle: Diplomatic protection of corporations generally belongs to the State of nationality of the corporation rather than automatically to States of nationality of shareholders.

Exam use: Corporate nationality and shareholder claims.

Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo)

The ICJ considered diplomatic protection in relation to an individual and addressed questions concerning the treatment of a foreign national and the rights capable of being invoked by the State of nationality.

Exam use: Modern application of diplomatic protection concerning individuals.

Diplomatic Protection and Local Remedies

The complete framework can be remembered as:

Internationally wrongful act

↓

Injury to national

↓

Nationality of claimant

↓

Exhaustion of local remedies

↓

State decides to exercise diplomatic protection

↓

International claim

↓

Responsibility of offending State

↓

Reparation

Quick Revision

Point	Rule
Meaning	State invokes responsibility of another State for injury to its national
Nature	State-level mechanism
ILC Draft Articles	2006 Draft Articles on Diplomatic Protection
Definition	Article 1
State’s right	Article 2
Nationality	Central requirement
Local remedies	Generally must be exhausted
ARSIWA provision	Article 44 relevant to admissibility of claims
Leading case	Mavrommatis
Nationality case	Nottebohm
Corporate protection	Barcelona Traction
Modern individual case	Ahmadou Sadio Diallo
Reparation	Restitution, compensation, satisfaction
Individual’s position	Cannot generally compel State to exercise diplomatic protection
Consular assistance	Different from diplomatic protection

Key Exam Points

• Diplomatic protection is a State-to-State mechanism.
• It enables a State to invoke the international responsibility of another State for injury caused to its national.
• Mavrommatis established the classic principle that the State asserting diplomatic protection is asserting its own right.
• Nationality is a fundamental requirement.
• The exhaustion of local remedies is an important admissibility requirement.
• Article 44 ARSIWA recognises the relevance of nationality and local remedies to the invocation of responsibility.
• The 2006 ILC Draft Articles on Diplomatic Protection provide a detailed framework.
• Nottebohm is important for nationality and genuine connection.
• Barcelona Traction is the leading case concerning diplomatic protection of corporations and the distinction between corporate and shareholder nationality.
• Diplomatic protection should be distinguished from consular assistance and direct individual human-rights petitions.
• Once responsibility is established, the ordinary principles of reparation apply.
• Diplomatic protection is generally a right of the State, not an automatic individual right to compel the State to act.

Conclusion

Diplomatic protection provides a legal mechanism through which a State may invoke the international responsibility of another State for an internationally wrongful act causing injury to one of its nationals. Its foundations lie in the principles of nationality, State responsibility and exhaustion of local remedies.

The doctrine developed from a traditional State-centred approach in which the injury to a national is transformed into an international claim of the national’s State. Mavrommatis remains fundamental to this principle, while Nottebohm and Barcelona Traction are essential for understanding nationality and corporate protection.

For examinations, remember:

Diplomatic protection → State invokes responsibility

Mavrommatis → State’s own right

Nottebohm → Nationality

Barcelona Traction → Corporate nationality

Local remedies → Generally must be exhausted

Successful claim → Reparation