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In the twentieth century, especially after the Second World War, the institution of diplomatic protection was finally accepted as part of the international (p. 17) legal system. The quarrelling and disputation has been not about the existence of the institution of diplomatic protection which involves remedial action and the application of secondary as opposed to primary rules, but about difficulties with the aspects of the institution, such as the local remedies rule, and the substantive content of the rules relating to the treatment of aliens the breach of which may give rise to diplomatic protection.
There were several Claims Commissions which decided disputes involving claims by aliens established after the First World War. 19 Moreover, the PCIJ also was faced with disputes involving diplomatic protection. 20 The trend in the decisions of international tribunals showed that the institution of diplomatic protection was firmly established, whatever the disputes about the rules governing it and about the rules relating to the substantive law of State responsibility for injuries to aliens. 21
After the Second World War, the spate of nationalizations of foreign property, particularly in Eastern Europe, generated much diplomatic action by western States in protection of their nationals. 22 There were several lump-sum settlements reached in connection with these cases. The disagreements among legal commentators on the universal applicability of and the content of the substantive law governing the treatment of aliens by States 23 did nothing to quell the assertion by States of their right to exercise diplomatic protection of their nationals abroad. This was so, even though the disagreements generally pitted less-developed countries, among them those that had just secured independence from colonial domination, against more developed countries. While problems relating to that substantive law may still remain and require solution, the right to diplomatic protection as such and the fact that there is a law governing the institution does not appear to have been questioned. Indeed, the ICJ has in four leading cases for all intents and purposes accepted the fact that diplomatic protection is a viable institution. These are the Nottebohm Case (Preliminary Objections), 24 the Barcelona (p. 18) Traction Co Case (Preliminary Objections), 25 the ELSI Case, 26 and the Diallo Case (Prelimary Objections). 27 Furthermore, there have been cases where States in the exercise of diplomatic protection have established arbitral tribunals along the lines of the earlier claims commissions to decide disputes involving aliens. Such is the Iran-United States Claims Tribunal. 28
Nevertheless, dissatisfaction with some of the rules governing diplomatic protection, such as the local remedies rule, have, it must be noted, given rise to several developments where either the right to diplomatic protection is renounced by States in favour of other means of settling disputes which are considered more effective or aliens do not seek diplomatic protection, at least provisionally, by agreeing to another means of settlement with the host or respondent State. Under the ICSID Convention, which was agreed upon by States in 1965 and came into effect soon after, national States agree not to exercise diplomatic protection in investment disputes while the aliens and the host States enter into arbitration under the auspices of ICSID as a means of settling such disputes. 29 This is provisional, insofar as the same article also permits diplomatic protection to be exercised on certain conditions and certain eventualities taking place. The arbitrations under the ICSID Convention are international arbitrations, where States have agreed in advance by becoming parties to the Convention to accept arbitration between them and aliens, provided the latter are nationals of a contracting party to the Convention and the two parties to the dispute have specifically agreed to arbitration in order to settle the dispute. States may also agree under BITs to a similar kind of arbitration in matters of alien treatment which is meant to replace the exercise of diplomatic protection. 30
The second phenomenon is that resort to local remedies is initially avoided by the alien entering into an arbitration agreement with the host State for the settlement of disputes without any intervention by the national States. Such an arbitration proceeding in reality takes the place of local remedies and is generally governed by private international law subject to any applicable rules of public international law. 31 It is a substitute for resort to local remedies which induces the alien not to seek the diplomatic protection of his national State and is regarded as inuring to the benefit of the alien.
(p. 19) These developments in the sphere of settlement of disputes between aliens and host States, while signalling a certain dissatisfaction with the efficacy of the process of diplomatic protection on the part of aliens and of their national States in their dealings with other States, has not diluted the availability of the institution, as, among other things, the attempts at codification discussed in Chapter6 will show. The institution is now well established on a firm foundation in international law—so much so that States of which aliens are nationals and which played an important part in the development of the institution (a development resisted to some extent by Latin American States at one time and by developing nations in the latter part of the twentieth century, and later by aliens themselves for whom the institution was in effect founded) have now to find means of circumventing it. The institution, it has been recognized by the international community of States, is a useful one—even if it is to become an institution of last resort or just a possible alternative. That even developing countries resort to it as host States in their relations with aliens and other States is illustrated by the Diallo Case, filed before the ICJ in 1998 by the Republic of Guinea against the Democratic Republic of Congo. 32 Moreover, now with nationals of developing States themselves investing in other States (see Malaysia, India and Singapore) and the ease of travel and of cross-border movement of persons, developing States may very well find themselves in a position not only to avail their nationals of diplomatic protection against other countries but to find that it is a needed institution.
The short point is that there have been changes in the condition of international society. In the nineteenth and early twentieth centuries diplomatic protection was seen as a weapon wielded by wealthy nations against the poorer or less developed nations, particularly those in the western hemisphere. As colonized nations gained independence in the early part of the second half of the twentieth century, diplomatic protection came to be associated more generally with a tussle between developed and less developed States connected particularly with foreign investment by nationals of developed States. In fact, later, especially with the liberalization of travel, the movement of investment relatively freely between States, and the possibility of doing business abroad for nationals of all States, the emphasis on diplomatic protection as a means only to protect the nationals of the richer developed States must, indeed, have waned and States seem in general to regard the institution, appropriately constructed as a legal institution, as one which could benefit them—regardless of whether they are poor or rich. Even if this observation is questioned, the inescapable fact remains that in the modern era, when nationals of developed States are not the only ones to cross frontiers by travel and invest or do business in foreign countries, diplomatic protection has become an institution whose force and usefulness have not been spent and which can be resorted to both by the wealthy and the not so wealthy in the appropriate (p. 20) circumstances. It is an institution which, rather than being abandoned, needs to be rationalized and developed. 33
The ICJ has recognized diplomatic protection in several cases, as will be seen, and most recently in the Diallo Case (Preliminary Objections), in agreement with the description of diplomatic protection by the ILC in its 2006 Draft Articles which state:
diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an 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 the implementation of such responsibility. (Article 1 of the draft Articles on Diplomatic Protection adopted by the ILC at its Fifty-eighth Session (2006), ILC Report, doc. A/61/10, p.24). 34
Notes:
(1) Emmerich Vattel, The Law of Nations, or the Principles of Natural Law (1758), Book II, Chapter VI: see 3 Classics of International Law (1916) 136.
(2) See C F Amerasinghe, ‘The Historical Development of International Law—Universal Aspects’, 38 Archiv des Völkerrechts (2001) 367 ff passim.
(3) Dunn, The Protection of Nationals (1932) 46.
(4) Grotius, De jure belli et pacis libri tres (1625).
(5) De legibus, ac Deo legislatore (1612) and other works in Selections from Three Works of Fransisco Suárez, SJ (1944), Volumes 1 & 2.
(6) Pufendorf, Elementorum jurisprudentae universalis libri II (1672) and other works. For references to the works of Pufendorf see O'Connell, 2 International Law (1970) 1303–4 (Table of General Treatises on International Law).
(7) See Pound, ‘Philosophical Theory and International Law,’ 1 Bibliotheca Visseriana (1923) 76.
(8) Op cit (note 1 above) 136.
(9) See ibid 139–50.
(10) Ibid 144.
(11) Ibid.
(12) Ibid 146.
(13) Ibid 145.
(14) Ibid 146. See further ibid 148 on immovable property particularly.
(15) Dunn, op cit (note 3, above) 52.
(16) The decisions of these commissions are to be found in Moore, 1–4 International Adjudications (1929–33). There are on record several legal opinions given in the nineteenth century by the UK government's legal advisers on the matter of the treatment of British subjects by foreign States: seeMcNair (ed), 2 International Law Opinions (1956) 32 ff, 101 ff, 197 ff.
(17) Dunn, op cit (note 3, above) 55–6.
(18) The following nineteenth century and early twentieth century works may be cited as examples:Heilborn, Das System des Völkerrechts entwickelt aus der völkerrechtlichen Begriffin (1896); Triepel, Völkerrecht und Landesrecht (1899); Tcharnoff, Le droit de protection exercé par un étât à l'égard de ses nationaux résidant à l'étranger (1898); Anzilotti, Teoria generale della responsabilita dello Stato nel diritto internazionale (1902); Moore, International Law Digest (1906); Borchard, Diplomatic Protection of Citizens Abroad (1915); Eagleton, The Responsibility of States in International Law (1928); Decencière-Ferrandière, La responsabilité internationale des Etats à raison des dommages subis par des étrangers (1925); Dunn, The Protection of Nationals (1932); Dunn, The Diplomatic Protection of Americans in Mexico (1933).
(19) See the digest of cases in Coussirat-Coustère and Eisemann, 2 Repertory of International Arbitral Jurisprudence (1989) 375–647.
(20) Eg, the Mavrommatis Palestine Concessions Case (1924), PCIJ Series A No 2; German Interests in Polish Upper Silesia Case (Preliminary Objection) (1925), PCIJ series A No 6.
(21) For a discussion in general of this area of the law during the post-First World War period, apart from Eagleton's and Dunn's works mentioned earlier, see Lillich (ed), State Responsibility for Injuries to Aliens (1983) passim.
(22) On these nationalizations and the problems created by them see, inter alios, C F Amerasinghe, State Responsibility for Injuries to Aliens (1967) 121 ff, and authorities there cited; and C F Amerasinghe, ‘The Quantum of Compensation for Nationalized Property’ in Lillich (ed), 3 The Valuation of Nationalized Property in International Law (1975) 91 ff. See also the discussion of the law of expropriation prior to 1970 and the authorities cited in O'Connell, 2 International Law (1970) 776 ff.
(23) See the debate singularly brought to the fore in Guha Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law’, 55 AJIL (1961) 863.
(24) 1953 ICJ Reports 11.
(25) 1964 ICJ Reports 5.
(26) 1989 ICJ Reports 15.
(27) 2007 ICJ Reports 17 ff. See also the Arrest Warrant of 11 April 2000 Case, 2002 ICJ Reports 17 ff <http://www.icj-cij.org>.
(28) For the documents establishing this tribunal see 1 Iran-US CTR (1983) 3 ff.
(29) Article 27.
(30) On this subject see C F Amerasinghe, Local Remedies in International Law (2nd edn, 2004) 267 ff.
(31) See, for example, the LIAMCO (Liamco v Libya) Arbitration (1977), 62 ILR 140; the TEXACO(Texaco v Libya) Arbitration (1977), 53 ILR 389; and the Sapphire-NIOC Arbitration (1963), 35 ILR 136.
(32) <http://www.icj-cij.org>, 2007 ICJ Reports.
(33) The point was made by me for the first time in my treatise, State Responsibility for Injuries to Aliens (1967) 4–5. See subsequently Lillich, ‘The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law under Attack,’ 69 AJIL (1975) 359; Przetacznik, ‘The Protection of Individual Persons in Traditional International Law (Diplomatic and Consular Protection)’, 21 öZöR (1971) 113. The Diallo Case, now before the ICJ, is an example of a dispute involving diplomatic protection between two (African) developing nations.
(34) 2007 ICJ Reports para 39 (<http://www.icj-cij.org>).
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