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Definition

The institution of diplomatic protection, as legally conceived, covers largely certain procedural aspects relating to secondary remedial obligations and rights of the protection of aliens. The law refers in this respect to the enforcement of State responsibility by peaceful means and consists of secondary rules, the substantive or primary rules being left to be determined by the law relating to the treatment of aliens. As generally conceived in practice and theory, but often not clearly articulated, diplomatic protection incorporates principally certain specific customary secondary rules relating to the capacity to espouse or institute claims and to the exhaustion of local remedies, though in order to trigger the remedial rules, the law of alien treatment enshrines rules which give the complainant State a substantive right, the violation of which is of importance for the law relating to the secondary or remedial rights.

Before the advent of the human rights conventions after the Second World War there were technically no procedures as such available to the individual under international law to contest his treatment by his own State. But, if certain rights of an individual—relating to treatment according to an international minimum standard and comparable to current human rights–had been violated abroad by a foreign State, the individual's national State could intervene to protect him against the wrongs which he had suffered. Though theoretically the institution of diplomatic protection was universal, in practice it was mainly the powerful western States that exercised this privilege. It was those States which most often had nationals abroad and most readily intervened to protect their nationals who were not treated in accordance with the ordinary standards of civilization set by those States themselves. ¹ Inevitably diplomatic protection of this kind came to be seen by developing nations, particularly in Latin America, as a discriminatory exercise of power rather than as a method of protecting the lawful rights of aliens.

As will be seen, diplomatic protection or intervention was based on the theory that an injury to a national abroad constituted an injury to his national State (p. 22) itself. This substantive aspect had important consequences. ² For instance, at one level, it provided a justification for military intervention or ‘gunboat’ diplomacy while, at another level, it allowed the US and European powers to reject Latin American attempts to compel foreigners doing business in Latin America to waive or renounce the procedure of diplomatic protection, on the ground that the national could not waive a right that belonged to the State. ³ The latter aspect of the law still survives.

The substantive aspect also influenced, for example, the legal position which prevails that the State claimant cannot be controlled internationally with regard to the disposal of the damages or compensation received, whether it be after negotiations or after litigation. This is so, even though the injury suffered by the individual national is the basis for the calculation of damages or compensation to be paid to the claimant State, in those cases where the damages or compensation is not paid directly to the alien pursuant to the judgment of an international tribunal.

The right to protect aliens as such, which should begin with negotiations with the host State, was often exercised by the use of force. To mention some examples, the Anglo-Boer war from 1899 to 1902 was justified by Great Britain as an intervention to protect its nationals who owned the gold mines of Witwatersrand; US military intervention in Latin America, on the ground of defending its nationals, has continued until recent times, as shown by the interventions in Grenada in 1983 ⁴ and Panama in 1989.⁵ Non-military action, mainly in the form of demands for compensation for injuries inflicted on the persons or property of aliens, was almost exclusively pursued by powerful States; ⁶ so much so it was often only the settlement of claims by arbitration that saved Latin American States (as weaker States receiving foreigners) from military intervention to enforce such claims. ⁷

(p. 23) Developments, particularly the human rights treaties which will be further discussed in Chapters 8 and 16, have led some to argue that for a variety of reasons diplomatic protection is obsolete and that the right of a State to assert its own right when it acts on behalf of its national is an outdated fiction which should be discarded—except, perhaps, in cases in which the real national interest of the State is affected. ⁸ In passing, it may be observed that in any case to rely on the argument that an institution which is based on a fiction should be dismissed simply because it is based on a fiction, is a mistake. An institution like diplomatic protection which serves a purpose is not to be dismissed simply on the ground that it is premised on a fiction and cannot stand up to logical scrutiny. Most legal systems have fictions. Moreover, diplomatic protection, it will be seen, rather recognizes a mixture of interests and is not based on fictions as such. ⁹

There has been some debate over a variety of aspects of the institution—for example, as to whose rights are asserted when a State exercises diplomatic protection in respect of a national—but it is a generally accepted rule of customary international law that States have the right to protect their nationals abroad. For this purpose, although the State in which the wrong was perpetrated has territorial jurisdiction over the alien, the State of nationality retains its personal jurisdiction over its national, even while he or she is residing in another State. ¹⁰ The classical formulation of this position concerning the consequences of the personal jurisdiction of the State of nationality was made by the PCIJ in the Mavrommatis Palestine Concessions Case:

It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right—its right to ensure, in the person of its subjects, respect for the rules of international law. ¹¹

The State of nationality, according to the traditional view, acts on its own behalf because an injury to the individual as a national is an injury to the State itself. The right of the State of nationality to exercise protection in this way has been (p. 24) confirmed both by judicial decisions ¹² and by legal commentators. ¹³ Part of the right has been codified in Article 3 of the 1961 Vienna Convention on Diplomatic Relations and in Article 5 of the 1963 Vienna Convention on Consular Relations, although these provisions cover a wider range. The former refers to the function of diplomatic and consular missions in:

protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law. ¹⁴

To the extent that the provision covers protection by diplomatic or consular missions after an injury to a national in the receiving State has been committed, the provision codifies diplomatic protection.

The general agreement on the right of the State to exercise diplomatic protection has led to definitions of diplomatic protection in terms which reflect the traditional State-centered position. In 1915 a legal commentator explained that, ‘Diplomatic protection is in its nature an international proceeding, constituting “an appeal by nation to nation for the performance of obligations of the one to the other, growing out of their mutual rights and duties”.’ ¹⁵ Another writer has stated that ‘diplomatic protection can be defined as a procedure for giving effect to State responsibility involving breaches of international law arising out of legal injuries to the person or property of the citizen of the State’. ¹⁶ C de Visscher defined diplomatic protection as ‘a procedure by which States assert the right of their citizens to a treatment in accordance with international law’. ¹⁷ One rapporteur of the ILC described diplomatic protection as ‘a mechanism or a procedure for invoking the international responsibility of the host State’. ¹⁸ The same rapporteur, in explanation, continued, ‘diplomatic protection has been regarded from the outset as the corollary of the personal jurisdiction of the State over its population when elements of that population, while in foreign territory, have suffered injury in violation of international law’. ¹⁹ The most recent rapporteur of the (p. 25) ILC on the subject of diplomatic protection in his report to the ILC explained the concept as ‘action taken by a State against another State in respect of an injury to the person or property of a national caused by an internationally wrongful act or omission attributable to the latter State’. ²⁰

The ILC itself in Article 1 of its final Draft Articles submitted to the GA in 2006 stated unequivocally that:

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. ²¹

This definition, which is satisfactory, purports to describe the main elements of diplomatic protection, while indicating the scope of the mechanism for the protection of nationals injured abroad. It takes into account several considerations and has specific objectives, ²² which are discussed below.