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Abstract and Keywords

This chapter discusses the history of diplomatic protection. Topics covered include the early beginnings of international law that sought to give protection to aliens; the development of a body of law governing the treatment of aliens during the 19th and early 20th centuries; and the acceptance of the institution of diplomatic protection as part of the international legal system in the 20th century.

Keywords: international law, Vattel, international legal system, international relations

Diplomatic protection, as contrasted with such areas of international law as the law of the sea or acquisition of territory, is a comparatively young creature in international law. As far as the sources reveal, there are no recorded examples of its possible exercise prior to the late eighteenth and early nineteenth century, although the institution is believed to have been referred to by Vattel in a work published in 1758. ¹ Grotius, writing in the previous century after the Peace of Westphalia when the nation State came to be established, does not deal with it particularly in his writings.

There is no recorded evidence, for example in classical Greek or Roman history, the history of South Asia (India), the history of China, or the early history of any other area, of a sovereign or ruler taking up against another sovereign ruler, on the basis of a law governing his relations with the latter, the cause of a subject or the equivalent where the claim was that such subject had been ill-treated by the latter. There were city-states, kingdoms, principalities, fiefdoms and the like in which subjects owed allegiance to and had obligations to rulers, princes, kings, or lords but no evidence that as between such entities the latter protected those who lived in territories under their control against each other in this way. This is so, even though there may be evidence of some kind of law, however embryonic, recognized as governing the relations between sovereigns, lords or rulers, in early times in many parts of the world. ² Even in medieval Europe there is no recorded evidence of such an event. It is not till much later and, indeed, after a considerable lapse of time after the rise of the nation State subsequent to the Peace of Westphalia, when a more developed relationship between subject and sovereign or ruler had taken root, that even legal commentators and scholars referred to what was the beginning of the institution of ‘diplomatic protection’.

In any case the law developed when it did after the period of colonization had begun and had established itself as a way of life for the European nations. It was (p. 9) applicable only among the States of Europe and America, omitting in its application entities outside that narrow world. The observation had been made with regard to the law of diplomatic protection that prior to the mid-eighteenth or early nineteenth century the practical conditions that were responsible for its development did not appear in full force and,

By that time the conceptual framework of international law had been fairly well crystallized. The fundamental doctrines of the juristic system had been worked out against the background of a more or less static world of localized and isolated communities ruled over by personal sovereigns. In the nineteenth century, that background changed radically, and along with it the practical needs to be served by a legal system. However, the basic conceptual structure of the system remained almost unchanged. Hence we find that the early history of the legal institution of diplomatic protection is very largely represented by its attempts to deal with a new set of practical needs and conflicts of interests in terms of old doctrines and standards developed to fit the requirements of a different type of civilization. ³

Grotius, writing on international law in 1625 soon after the Renaissance and the age of discovery, entailing more complex relationships between nation States, had begun, addressed those relations between States but paid no attention to the position of the individual, particularly as an alien. ⁴ This was probably because States were not concerned with the position of the individual, frequent interaction between States and individuals as aliens having only just begun. Nor do other authors, such as Suarez ⁵ and Pufendorf, ⁶ have anything to say on the subject.

Grotius and his immediate successors had little, if anything, to say with regard to the legal obligations of a State toward foreigners and foreign property interests within its borders, at least in time of peace. New States that arose out of the disintegration of the Holy Roman Empire were very largely self-supporting economic units. At that time the preoccupations were with different problems from those with which the world was faced later and particularly in the nineteenth century and thereafter. Problems which arose later were unknown to the early writers and could not be foreseen by them.

Grotius wrote of the legal relations of personal sovereigns in their dealings with each other, not of the relations between abstract States. For him sovereigns were human beings subject to a moral order in their mutual relations in virtually the same manner in which private individuals were then subject to an authoritative moral order. ⁷ The system of political order and authority represented in the Holy (p. 10) Roman Empire was disintegrating, together with the dissolution of the Empire, and threatened to be supplanted by anarchy and general disorder. The concept of absolute sovereignty of the monarch over his subjects, as propounded by political theorists such as Bodin, was regarded as the best means of preventing strife and chaos in the internal life of the new nation States.

Because absolute freedom of the monarch in his external relations with other States would lead to chaos and constant war, a system of restraints was developed upon the external actions of absolute monarchs in the interest of peace for the community at large. Grotius was content to believe that these monarchs were subject both to a higher law based on natural reason and to a customary law voluntarily accepted. This conception, also reflected in the philosophical beliefs of the time, supplanted gradually the system of universal authority embodied in the Holy Roman Empire. Naturally, Grotius did not reflect on the subject of the protection of the citizen abroad, primarily because the citizen for the most part stayed at home, and Grotius had little or nothing to say about it.