Diplomatic Protection of Individuals

Diplomatic Protection of Individuals is the process by which a State invokes the international responsibility of another State for an internationally wrongful act causing injury to one of its nationals. It is a mechanism through which an individual’s injury is transformed into an international claim of the State of nationality.

Meaning

Diplomatic protection arises when an individual suffers injury because of conduct attributable to another State.

The basic relationship is:

Individual → suffers internationally wrongful injury

↓

State of nationality → invokes responsibility

↓

Responsible State → may be required to provide reparation

Diplomatic protection is therefore fundamentally a State-to-State mechanism, even though the underlying injury is suffered by an individual.

Legal Nature

Diplomatic protection is traditionally regarded as a right of the State, not an individual right under general International Law.

The State of nationality decides whether to exercise diplomatic protection.

Therefore:

Individual suffers injury ≠ automatic right to compel diplomatic protection

The State generally retains discretion concerning whether and how it will pursue the claim.

International Legal Basis

The modern law of diplomatic protection is reflected principally in the International Law Commission’s Draft Articles on Diplomatic Protection, 2006.

The Draft Articles address:

• diplomatic protection;
• nationality of individuals;
• continuous nationality;
• nationality of corporations;
• dual nationality;
• refugees and stateless persons;
• exhaustion of local remedies.

Article 1 — Meaning

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

Article 2 — Right of the State

Article 2 provides that a State has the right to exercise diplomatic protection in accordance with the Draft Articles.

The State has discretion concerning whether to exercise that right.

Nationality of the Individual

Nationality is the fundamental connecting factor.

The individual must generally be a national of the State exercising diplomatic protection.

For example:

Person X → national of State A

State B → commits internationally wrongful act against X

↓

State A → may exercise diplomatic protection

Continuous Nationality

The principle of continuous nationality is an important requirement.

Generally, the person must have been a national of the protecting State at the relevant time when the injury occurred and when the claim is presented.

The rule prevents a State from simply granting nationality to an injured person after the wrongful act in order to create a diplomatic protection claim.

Change of Nationality

Change of nationality can complicate diplomatic protection.

For example:

Injury occurs while X is national of State A

↓

X later becomes national of State B

↓

State B seeks to exercise diplomatic protection

The applicable rules concerning continuous nationality become important.

Genuine or Effective Nationality

Where a person possesses more than one nationality, questions may arise concerning which nationality is genuine or predominant.

The Nottebohm case is traditionally associated with the concept of a genuine connection between an individual and the State of nationality.

However, the Nottebohm principle should not be treated as a universal requirement that every nationality must always satisfy a “genuine connection” test.

Dual Nationals

Diplomatic protection becomes more complicated where the injured individual possesses two nationalities.

For example:

X → national of State A + State B

↓

State A → seeks protection against State B

Special rules apply to this situation.

The ILC Draft Articles recognise the relevance of predominant nationality in certain cases involving dual nationals.

Mergé Claim

The Mergé Claim (1955) is an important authority concerning diplomatic protection and dual nationality.

It is traditionally associated with the principle that one State should generally not exercise diplomatic protection against another State of which the injured person is also a national.

Modern International Law has developed more detailed rules concerning predominant nationality.

Diplomatic Protection of Corporations

Diplomatic protection is not limited to natural persons.

A State may also exercise diplomatic protection concerning a legal person, particularly a corporation, where the applicable nationality requirements are satisfied.

Barcelona Traction Case

The leading case is:

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 1970

The company was incorporated in Canada, although many of its shareholders were Belgian nationals.

Belgium attempted to exercise diplomatic protection concerning alleged injury to the company.

The ICJ held that Canada, as the State of the company’s nationality, was the appropriate State to exercise diplomatic protection concerning injury to the company itself.

Shareholders and Diplomatic Protection

The Barcelona Traction case established an important distinction between:

injury to a company

and

direct injury to shareholders.

The State of nationality of shareholders does not ordinarily acquire a right to exercise diplomatic protection merely because its nationals own shares in a foreign corporation.

Exhaustion of Local Remedies

One of the most important requirements of diplomatic protection is the exhaustion of local remedies.

Generally, the injured individual must first use the available and effective legal remedies in the State responsible for the alleged wrongful act.

The process is:

Internationally wrongful act

↓

Domestic legal remedies

↓

Exhaustion of available and effective remedies

↓

Diplomatic protection

Purpose of the Local Remedies Rule

The rule provides the responsible State with an opportunity to:

• correct the wrongful act;
• provide compensation;
• provide restitution;
• otherwise resolve the dispute.

It also respects the domestic judicial system of the State concerned.

Exceptions to Exhaustion

The local remedies rule is not absolute.

Exceptions may arise where:

• no adequate remedy exists;
• available remedies are ineffective;
• remedies are unavailable;
• proceedings are unreasonably prolonged;
• circumstances make exhaustion impossible.

The precise exception depends upon applicable International Law.

Internationally Wrongful Act

Diplomatic protection requires an internationally wrongful act attributable to the responsible State.

The underlying conduct may involve:

• unlawful detention;
• denial of justice;
• unlawful expropriation;
• discrimination;
• physical mistreatment;
• violation of treaty obligations;
• other internationally wrongful conduct.

Injury to the National

There must generally be an injury to the national or legal person whose protection is being invoked.

The injury may involve:

• physical harm;
• economic loss;
• property damage;
• violation of legal rights;
• other recognised forms of injury.

Reparation

Where international responsibility is established, the responsible State may be required to provide full reparation for the injury caused.

Forms of reparation may include:

Restitution

Restoring the situation that existed before the wrongful act, where possible.

Compensation

Payment for financially assessable damage.

Satisfaction

Appropriate measures addressing non-material injury.

Diplomatic Protection and Consular Assistance

These concepts must be distinguished.

Consular Assistance

Consular officers provide practical assistance to nationals abroad, such as:

• visiting detained nationals;
• helping with travel documents;
• facilitating communication with family;
• providing information about local procedures.

Diplomatic Protection

The State invokes the international responsibility of another State for an internationally wrongful act.

Therefore:

Consular assistance → individual assistance

Diplomatic protection → international claim

Diplomatic Protection and Human Rights

Diplomatic protection differs from direct international human rights procedures.

Under diplomatic protection:

State → brings international claim concerning its national

Under an applicable human rights treaty:

Individual → may sometimes bring a direct international petition

Whether direct individual petitions are available depends upon the relevant treaty and jurisdiction.

Diplomatic Protection and International Crimes

Diplomatic protection may arise from certain internationally wrongful acts affecting individuals.

However, diplomatic protection is distinct from international criminal prosecution.

Diplomatic protection → State responsibility

International criminal law → individual criminal responsibility

Refugees

The traditional nationality requirement creates difficulties concerning diplomatic protection of refugees.

A refugee may retain the nationality of the State from which they fled, but political circumstances may make diplomatic protection by that State inappropriate or ineffective.

The ILC Draft Articles contain provisions concerning refugees and certain stateless persons.

Stateless Persons

A stateless person has no State of nationality.

This creates a fundamental difficulty because traditional diplomatic protection depends upon nationality.

The ILC Draft Articles therefore address specific circumstances concerning refugees and stateless persons.

Waiver of Diplomatic Protection

Diplomatic protection is generally a right of the State.

An individual cannot ordinarily transfer the State’s international claim to another person simply through a private agreement.

The State controls the exercise of diplomatic protection under general International Law.

Settlement of Claims

A State exercising diplomatic protection may pursue settlement through:

• diplomatic negotiations;
• diplomatic protests;
• arbitration;
• international courts;
• other peaceful means.

The objective may be to obtain appropriate reparation for the internationally wrongful injury.

Diplomatic Protection and Use of Force

Diplomatic protection does not create a general right to use force.

The State must pursue the claim through peaceful means consistent with International Law and the UN Charter.

Nationality vs Residence

Nationality, rather than mere residence, is generally the relevant connecting factor.

For example:

Person is resident in State A

but

national of State B

↓

State B is ordinarily the State relevant to diplomatic protection.

Residence alone does not normally create diplomatic protection.

Important Cases

Nottebohm (1955)

Liechtenstein v. Guatemala

Important for nationality and the genuine/effective connection principle in diplomatic protection.

Barcelona Traction (1970)

Belgium v. Spain

Important for corporate nationality and the distinction between corporate injury and shareholder injury.

Mergé Claim (1955)

Important for diplomatic protection involving dual nationals.

Ahmadou Sadio Diallo (2010)

Guinea v. Democratic Republic of the Congo

Important for diplomatic protection of individuals and the protection of individual rights.

Common Confusions

Is diplomatic protection an individual right?

Generally, no. It is primarily a right of the State.

Must the State exercise diplomatic protection?

Generally, no. The State normally has discretion.

Is nationality necessary?

Generally yes. Nationality is the principal connecting factor.

Must local remedies be exhausted?

Generally yes, unless an applicable exception exists.

Can a State protect a person who became its national after the injury?

Generally, the continuous nationality rule prevents this from automatically creating a claim.

Can dual nationals receive diplomatic protection?

Potentially, but special rules apply, particularly where protection is sought against the other State of nationality.

Can corporations receive diplomatic protection?

Yes, subject to the applicable rules concerning corporate nationality.

What is the leading corporate case?

Barcelona Traction (1970).

What is the leading nationality case?

Nottebohm (1955).

What is the leading dual-nationality authority?

Mergé Claim (1955).

Topic at a Glance

Point Position Meaning State invokes responsibility for injury to its national Nature State-to-State mechanism Main connecting factor Nationality State’s role Decides whether to exercise protection Continuous nationality Generally required Local remedies Generally must be exhausted Main exceptions Ineffective/unavailable remedies, etc. Natural persons Protected where requirements are met Corporations May receive protection through State of nationality Shareholders Generally cannot claim for corporate injury merely as shareholders Dual nationality Special rules apply Stateless persons Traditional nationality basis creates difficulties Remedies Restitution, compensation, satisfaction Main framework ILC Draft Articles, 2006 Key cases Nottebohm, Mergé, Barcelona Traction, Diallo

Quick Revision

• Diplomatic protection is the invocation by a State of another State’s international responsibility for injury to its national.
• It is fundamentally a State-to-State mechanism.
• The principal connecting factor is nationality.
• The State generally has discretion whether to exercise protection.
• Continuous nationality is an important requirement.
• The injured person generally must exhaust local remedies.
• Exceptions may apply where local remedies are unavailable or ineffective.
• Nottebohm (1955) → nationality and genuine connection.
• Mergé Claim (1955) → dual nationality.
• Barcelona Traction (1970) → corporate nationality and shareholder claims.
• Diallo (2010) → diplomatic protection of individuals.
• Diplomatic protection is different from consular assistance.
• Diplomatic protection concerns State responsibility, not individual criminal responsibility.
• It does not authorise the use of force.
• The ILC Draft Articles on Diplomatic Protection, 2006 provide an important modern framework.
• The essential principle is:

Diplomatic protection allows a State to invoke the international responsibility of another State for an internationally wrongful injury suffered by its national, subject to the rules of nationality and exhaustion of local remedies.

Conclusion

Diplomatic protection of individuals is an important mechanism through which an individual’s injury may become the subject of an international claim by the State of nationality. Although the underlying harm is suffered by an individual, diplomatic protection is traditionally a right of the State, and the State generally has discretion whether to exercise it. Nationality is the central connecting factor, with the continuous nationality principle preventing the artificial creation of claims through a change of nationality after an injury. Another fundamental requirement is the exhaustion of local remedies, subject to recognised exceptions. Special rules apply to dual nationals, refugees, stateless persons and corporations. The leading authorities include Nottebohm, concerning nationality; Mergé, concerning dual nationality; Barcelona Traction, concerning corporate nationality; and Ahmadou Sadio Diallo, concerning the protection of individuals. Diplomatic protection should also be distinguished from consular assistance and direct international human rights procedures. The ILC Draft Articles on Diplomatic Protection, 2006 provide an important framework for the modern law. Ultimately, diplomatic protection provides a peaceful legal mechanism through which a State can seek reparation for an internationally wrongful injury suffered by its national.