Diplomatic protection
Encyclopedia
In international law, diplomatic protection (or diplomatic espousal) is a means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by the other State. Diplomatic protection, which has been confirmed in different cases of the Permanent Court of International Justice
and the International Court of Justice
, is a discretionary right of a State and may take any form that is not prohibited by international law. It can include consular action, negotiations with the other State, political and economic pressure, judicial or arbitral proceedings or other forms of peaceful dispute settlement.
In 2006, the International Law Commission
has adopted the Articles on Diplomatic Protection, regulating the entitlement and the exercise of diplomatic protection.
and Venezuela in the early twentieth century). As a result, the doctrine of diplomatic protection has attracted much criticism, particularly in former colonies. Specifically in Latin America the Calvo Doctrine
was devised to avoid the invocation of diplomatic protection by Western nationals. Nevertheless, diplomatic protection has been recognised as customary international law by international courts and tribunals as well as scholars. After the Second World War, with the use of force being outlawed as an instrument of international relations, diplomatic protection usually takes other forms, such as judicial proceedings or economic pressure.
judgment in the Nottebohm
case).
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, was an international court attached to the League of Nations. Created in 1922 , the Court was initially met with a good reaction from states and academics alike, with many cases submitted to it for its first decade of...
and the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
, is a discretionary right of a State and may take any form that is not prohibited by international law. It can include consular action, negotiations with the other State, political and economic pressure, judicial or arbitral proceedings or other forms of peaceful dispute settlement.
In 2006, the International Law Commission
International Law Commission
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."It holds an annual session at the United Nations Office at Geneva....
has adopted the Articles on Diplomatic Protection, regulating the entitlement and the exercise of diplomatic protection.
History
Diplomatic protection traces its roots to the eighteenth century. The idea that a state has a right to protect its subjects who are abroad has been expressed by Emmerich de Vattel in his opus "The Law of Nations": "Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen." Since this protection could take any form whatsoever, the doctrine has often been misused by Western powers as a pretext to intervene in the affairs of less powerful nations, sometimes resorting to the use of force (for example in China during the Boxer RebellionBoxer Rebellion
The Boxer Rebellion, also called the Boxer Uprising by some historians or the Righteous Harmony Society Movement in northern China, was a proto-nationalist movement by the "Righteous Harmony Society" , or "Righteous Fists of Harmony" or "Society of Righteous and Harmonious Fists" , in China between...
and Venezuela in the early twentieth century). As a result, the doctrine of diplomatic protection has attracted much criticism, particularly in former colonies. Specifically in Latin America the Calvo Doctrine
Calvo Doctrine
The Calvo Doctrine is a foreign policy doctrine which holds that jurisdiction in international investment disputes lies with the country in which the investment is located. The Calvo Doctrine thus proposed to prohibit diplomatic protection or intervention before local resources were exhausted...
was devised to avoid the invocation of diplomatic protection by Western nationals. Nevertheless, diplomatic protection has been recognised as customary international law by international courts and tribunals as well as scholars. After the Second World War, with the use of force being outlawed as an instrument of international relations, diplomatic protection usually takes other forms, such as judicial proceedings or economic pressure.
The nature of diplomatic protection
Traditionally, diplomatic protection has been seen as a right of the state, not of the individual that has been wronged under international law. An injury to an alien is considered to be an indirect injury to his home country and in taking up his case the State is seen as asserting its own rights. This means that a State is in no way obliged to take up its national's case and resort to diplomatic protection if it considers this not to be in its own political or economic interests.Legal requirements
Customary international law recognises the existence of certain requirements that must be met before a state can validly espouse its national's interest. The two main requirements are exhaustion of local remedies and continuous nationality.Exhaustion of local remedies
Diplomatic espousal of a national's claims will not be internationally acceptable unless the national in question has given the host state the chance to correct the wrong done to him through its own national remedies. Exhaustion of local remedies usually means that the individual must first pursue his claims against the host state through its national courts up to the highest level before he can ask the state of his nationality to take up those claims and that state can validly do so.Effective and continuous nationality
The second important requirement is that the individual who has been wronged must maintain the nationality of the espousing state from the moment of injury until at least the presentation of the claim by way of diplomatic espousal. If the nationality of the individual in question changes in the meantime, the state of his former nationality will not be able validly to espouse his claims. The claim by a state on behalf of its national may also be dismissed or declared inadmissible if there is no effective and genuine link between the national concerned and the state that seeks to protect him (see the International Court of JusticeInternational Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
judgment in the Nottebohm
Nottebohm
Nottebohm is surname of:* Andreas Nottebohm , American/German artist* Gustav Nottebohm , pianist, teacher, musical editor* Fernando Nottebohm, neuroscientist...
case).
External links
- A Brief Primer on International Law With cases and commentary. Nathaniel Burney, 2007.
- Official United Nations website
- Official UN website on International Law
- Official website of the International Court of Justice