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Basic Content of the Concept

Diplomatic protection as a concept may be explained as follows:

(i) Under international law, a State is responsible for injury to an alien caused by its wrongful act or omission. Diplomatic protection is the procedure (p. 26) employed by the State of nationality of the injured person to secure protection of that person and to obtain reparation for the internationally wrongful act inflicted. The concept covers only the rules governing the circumstances in which diplomatic protection may be exercised and the conditions that must be met before it may be exercised. The internationally wrongful acts that give rise to the responsibility of the State for injury to an alien are not included in the concept. The concept aims at maintaining the distinction between primary and secondary rules and strictly covers only the latter. ²³

(ii) The definition makes it clear that the right of diplomatic protection belongs to the State, the injured individual as such not having any right. In exercising diplomatic protection the State adopts in its own right the cause of its national arising from the internationally wrongful act of another State. This formulation follows the language of the ICJ in the Interhandel Case where it was stated that the applicant State had ‘adopted the cause of its national’ ²⁴ whose rights had been violated. The legal interest of the State in the exercising of diplomatic protection derives from the injury to a national resulting from the wrongful act of another State, which is conceived as wrongful vis-à-vis the former State. It will be suggested later in this work that this view of diplomatic protection may be adjusted so as to accommodate the additional right of the injured alien.

(iii) In most circumstances it is upon the link of nationality between the State and the injured person that the exercise of diplomatic protection is based. The term ‘national’ in the definition covers both natural and juridical or legal persons. Where appropriate, the law as relating to natural persons needs to be treated separately from that relating to juridical or legal persons.

(iv) The definition makes clear the point that what is covered is the exercise of diplomatic protection by a State and not with the protection afforded by an international organization to its agents, which was recognized by the ICJ in the Reparation Case ²⁵ as a right of the organization.

(v) The definition covers the protection of nationals not engaged in official international business on behalf of the State. These officials are protected by other rules of international law and instruments such as the Vienna Convention on Diplomatic Relations of 1961 ²⁶ and the Vienna Convention on Consular Relations of 1963. ²⁷ The protection of such officials is the consequence of a direct injury to the State and is not considered merely diplomatic protection of nationals.

(vi) The definition, while implying the rules relating to nationality of claims by referring to the protection of nationals, does not specifically incorporate the requirement of exhaustion of local remedies. Such a reference, it may be argued, is not necessary in an explanation which seeks to define. However it must be recognized that the element of exhaustion of local remedies is a basic premise of diplomatic protection, as will be seen in Chapter 11.

(vii) Most importantly diplomatic protection must be exercised by lawful and peaceful means. Several judicial decisions draw a distinction between ‘diplomatic action’ and ‘judicial proceedings’ when describing the action that may be taken by a State when it resorts to diplomatic protection. ²⁸ The definition goes further than incorporating this distinction by subsuming judicial proceedings under ‘other means of peaceful settlement’. ‘Diplomatic action’ covers all the lawful procedures employed by a State to inform another State of its views and concerns, including protest, request for an inquiry, or for negotiations aimed at the settlement of disputes. ‘Other means of peaceful settlement’ embraces all forms of lawful dispute settlement, from negotiation, mediation, and conciliation, to arbitral and judicial dispute settlement. What is included goes beyond simple ‘diplomacy’. The use of force, prohibited by Article 2(4) of the UN Charter, however, is not a permissible method for the exercise of the right of diplomatic protection. The action taken must be peaceful, and clearly includes judicial proceedings. It is in the Panavezys-Saldutiskis Railway Case that the PCIJ explicitly distinguished between ‘diplomatic action’ and ‘judicial proceedings’, ²⁹ making a distinction repeated by the ICJ in the Nottebohm Case ³⁰ and by the Iran-United States Claims Tribunal in Case No. A/18. ³¹ But this distinction is unnecessary and not a useful one, and has been abandoned by the ILC.