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Legal writers, however, generally draw no distinction between peaceful action and the use of force but have often used the term ‘diplomatic protection’ to embrace consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, retorsion, severance of diplomatic relations, economic pressure (p. 28) and, even in the final resort, the use of force. 32 In 1932 it was stated in respect of the term diplomatic action that:
It embraces generally all cases of official representation by one Government on behalf of its citizens or their property interests within the jurisdiction of another, for the purpose, either of preventing some threatened injury in violation of international law, or of obtaining redress for such injuries after they have been sustained …
What ordinarily happens in the case of protection is that the Government of an injured alien calls the attention of the delinquent Government to the facts of the complaint and requests that the appropriate steps be taken to redress the grievance … the term ‘diplomatic protection’ is here used as a generic term covering the general subject of protection of citizens abroad, including those cases in which other than diplomatic means may be resorted to in the enforcement of obligations …
it should be noted that we are here concerned only with representations of demands that are made (expressly or impliedly) under a claim of right. Governments often take action in behalf of their citizens abroad which is not based on any assertion of international obligation and does not fall within the category of protection in a technical sense. 33
The description includes the use of force.
One rapporteur of the ILC, on diplomatic protection, on the other hand, while recognizing the wide range of actions open to a State in the exercise of the right of diplomatic protection, stated that:
The State retains, in principle, the choice of means of action to defend its nationals, while respecting its international commitments and preemptory norms of international law. In particular, it may not resort to the threat or use of force in the exercise of diplomatic protection.34
There is here an exclusion of the use of force.
The restrictions on the means of action open to the protecting State are governed by general rules of international law, particularly those relating to countermeasures as defined in the Draft Articles of the ILC on State Responsibility. 35 The use of force as the ultimate means of protecting nationals has in the past frequently been considered part of the topic of diplomatic protection. This requires some explanation.
History, including the recent past, 36 is replete with examples of cases in which the pretext of protecting nationals has been used as a justification for military intervention. The writings of the Argentine jurist, Calvo, who sought (p. 29) to restrict the right of diplomatic protection, were a response to military interventions in Latin America. 37 The Drago Doctrine of 1903, 38 which sought to outlaw military intervention for the recovery of contract debts owed to foreign nationals, was a response to the action taken by Italy, Germany, and Great Britain against Venezuela in 1902 following its failure to pay contractual debts owed to the nationals of those States. This resulted in the Porter Convention of 1907 Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (Convention II of the 1907 Hague Peace Conference), which in Article 1 required States ‘not to have recourse to armed force for the recovery of contract debts claimed from the Government of another country as being due to its nationals’. That this prohibition on the use of force was not absolute was made clear by the qualification to the Article that ‘this understanding is not, however, applicable when the debtor State refuses or neglects to reply to an offer of arbitration or, after accepting the offer, prevents any compromis from being agreed on, or, after the arbitration, fails to submit to the award.’ 39 This history, coupled with the prohibition on the use of force contained in Article 2(4) of the UN Charter, has led many more recent writers to assert that the use of force is prohibited as a means of diplomatic protection. 40
Article 2(4) of the UN Charter contains a prohibition on the use of force. The use of force to recover contract debts appears to be prohibited by Article 2(4) and Article 51 of the UN Charter. Beyond that there is extensive debate on the extent of the prohibition of the use of force, whether in self-defence or otherwise. The threat or use of force as a reprisal in protecting nationals is difficult to justify. The only possible justification is if it can be characterized as self-defence. There is no suggestion that defence of nationals may be categorized as humanitarian intervention. 41 The right of self-defence in international law was formulated well before 1945. It required action taken in self-defence to be an immediate and necessary response to a situation threatening a State's security and vital interests. Moreover, the response was to be kept within the bounds of proportionality. The scope of the right was wide and included both anticipatory self-defence and intervention to protect nationals. 42 On one interpretation of Articles 2(4) and 51 of the Charter, this right of self-defence still exists in its broadest extension. 43Some (p. 30) writers 44 argue that Article 51 contains a complete and exclusive formulation of the right of self- defence, which limits it to cases in which an armed attack has occurred against a State, while others maintain that the phrase ‘inherent right’ in Article 51 preserves the pre-Charter customary right. 45 In the Nicaragua Case the ICJ gave support to the latter view when it held that ‘Article 51 of the Charter is only meaningful on the basis that there is a “natural” or “inherent” right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter’. 46 The ICJ confirmed this approach in the Legality of the Threat or Use of Nuclear Weapons Opinion when it declared that some of the constraints on the resort to self-defence ‘are inherent in the very concept of self-defence’ while others are specified in Article 51. Moreover, it said, ‘The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law.’ 47
It would appear that the totality of the customary law right of self-defence has survived, be it under Article 2(4) or Article 51. It may, therefore, be difficult to argue that the Charter's prohibition of the use of force internationally extends to the protection of nationals abroad. 48 Such contention is made more difficult by the amount of State practice since 1945 in support of military intervention to protect nationals abroad in time of emergency 49 and the failure of courts 50 and political organs 51 of the United Nations to condemn such action. There is, however, a prevailing view that the right to use force in the protection of nationals has been greatly abused 52 in the past and that it is a right that lends itself to abuse. 53 The right may, therefore, have to be narrowly (p. 31) formulated to make it clear both that it may not be invoked merely to protect the property of a State's nationals abroad 54 and that it may only be invoked in emergencies to justify the rescue of foreign nationals. The 1976 forcible intervention by Israeli commandos, at Entebbe airport 55 in Uganda, may serve as a model for such a rescue operation. This approach seems to reflect State practice more accurately than an absolute prohibition on the use of force (which is impossible to reconcile with actual State practice) or a broad right to intervene (which is impossible to reconcile with the protests that have been made by the injured State and third States on the occasion of such interventions). From a policy perspective it is wiser to recognize the existence of such a right, but to prescribe severe limits, than to ignore its existence, which will permit States to invoke the traditional arguments in support of a broad right of intervention and lead to further abuse. 56
However, the use of force to protect nationals is generally for the elimination of future damage or injury and certainly does not focus on reparation for injury already caused. The use of force is not considered as a permissible form of reprisal for injuries to aliens. Diplomatic protection, on the other hand, is aimed at securing redress through remedial and peaceful action. Hence, while the use of force to protect nationals from injury may be permitted in certain circumstances by international law, it is not to be regarded strictly as the exercise of diplomatic protection.
These considerations on the use of force to protect nationals aside, it should be noted that the ILC in its draft has correctly confined the use of the term diplomatic protection to peaceful means of settlement in the exercise of protecting nationals. It is not only convenient but the proper use of language to follow this course. The use of force to protect nationals, when it is legal, need not and should not be described as ‘diplomatic’ protection.
(p. 32) Alternative Arrangements
The right violated, as was explained earlier, is that of the State, even though it is the individual who suffers the primary injury and in respect of whom the law is violated. This is the traditional and accepted view, even though individuals may make claims before international tribunals with, of course, the agreement of their national States. When a State of which the injured person is a national makes such arrangements, it does so in the exercise of diplomatic protection and thereby recognizes together with the respondent State the right to judicial settlement of its national, in place of its own remedial rights. International law does not preclude the express or implied agreement by a national State not to intervene or not to continue to intervene directly in a dispute by referring the settlement of disputes to other means in the implementation of its own right to protect diplomatically. 57
Now, recognizing this position, Article 16 of the final Draft Articles of the ILC provides that:
The rights of States, natural persons, legal persons or other entities to resort under international law to actions or procedures other than diplomatic protection to secure redress for injury suffered as a result of an internationally wrongful act, are not affected by the present draft articles. 58
The customary international law rules on diplomatic protection that have evolved, and the more recent principles governing the protection of human rights particularly, complement each other and, ultimately, may be regarded as serving a common goal—the protection of human rights. 59 States, including the State of nationality and States other than the State of nationality of an injured individual, have a right to protect the individual under, as the case may be, either customary international law or a multilateral or bilateral human rights treaty or other treaty. Natural persons or other entities, such as non-governmental organizations, also may resort under international law to actions or procedures other than diplomatic protection to secure redress for injury suffered as a result of an internationally wrongful act.
A State may protect a non-national against the State of nationality of an injured individual or a third State in inter-State proceedings under the International (p. 33) Covenant on Civil and Political Rights, 60 the International Convention on the Elimination of All Forms of Racial Discrimination, 61the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 62the European Convention on Human Rights, 63 the American Convention on Human Rights, 64 and the African Charter on Human and People's Rights. 65 The same conventions allow a State to protect its own nationals in inter-State proceedings. Moreover, customary international law allows States to protect the rights of non-nationals by protest, negotiation and, if a jurisdictional instrument so permits, legal proceedings. Thus, the decision of the ICJ in the 1966 South West Africa Cases (Second Phase) 66 holding that a State may not bring legal proceedings at all to protect the rights of non-nationals is today seen as such as bad law and has been expressly repudiated by the ILC in its Articles on State Responsibility. 67 Further, Article 48 of these Articles permits a State other than the injured State to invoke the responsibility of another State if the obligation breached is owed to the international community as a whole (erga omnes). 68 Thus, the individual may be endowed with rights and remedies to protect himself against the injuring State, whether the individual's State of nationality or another State, in terms of international human rights conventions. This is most frequently achieved by the right to petition an international human rights monitoring body. 69
Individual rights under international law may also arise outside the framework of human rights protection. In the La Grand Case (Merits) the ICJ held that Article 36 of the Vienna Convention on Consular Relations ‘creates individual rights, which by virtue of Article 1 of the Optional Protocol, may be invoked in this Court by the national State of the detained person’; 70 and in the Avena Case the Court further observed ‘that violations of the rights of the individual under Article 3 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual’. 71 A saving clause was inserted in Article 33 of the ILC's Articles on State Responsibility to take account of this development in (p. 34) international law. 72 It is apparent, though, that the protection afforded under such provisions is not diplomatic protection in the technical sense, although it may involve diplomats.
The actions or procedures referred to in Article 16 of the final ILC Draft Articles on Diplomatic Protection include those available under both universal and regional human rights treaties as well as any other relevant treaty—for example, some treaties on the protection of investment. Article 16 does not deal with domestic remedies. This Draft Article is primarily concerned with the protection of human rights by means other than diplomatic protection. It does, however, also embrace the rights of States, natural persons, and other entities conferred by treaties and customary rules on other subjects, such as the protection of foreign investment. The Draft Articles are without prejudice to such rights that exist under procedures other than diplomatic protection.
Article 16 makes it clear that the rights that States, individuals, or other entities may have to secure redress for injury suffered as a result of an internationally wrongful act by procedures other than diplomatic protection are not prejudiced. Where, however, a State resorts to such procedures, it does not per se, because of that fact, abandon its right to exercise diplomatic protection in respect of an individual, if that individual should be a national. 73
Article 17 of the ILC Draft Articles provides that the Articles on diplomatic protection do not apply:
to the extent that they are inconsistent with special rules of international law, such as treaty provisions for the protection of investments. 74
Foreign investment is largely regulated and protected by bilateral investment treaties (BITs). 75 The number of BITs has grown considerably in recent years and today there are a considerable number of such agreements in existence. An important feature of the BIT is its procedure for the settlement of investment disputes. Some BITs provide for the direct settlement of the investment dispute between the investor and the host State before either an ad hoc tribunal or a tribunal established by the International Centre for Settlement of Investment Disputes (ICSID) under the Convention on the Settlement of Investment (p. 35) Disputes between States and Nationals of Other States. 76 Other BITs provide for the settlement of investment disputes by means of arbitration between the State of nationality of the investor (corporation or shareholder) and the host State over the interpretation or application of the relevant provision of the BIT. The dispute settlement procedures provided for in BITs and by the ICSID offer greater advantages to the foreign investor than the customary international law system of diplomatic protection, as they give the investor direct access to international arbitration, they avoid the political uncertainty inherent in the discretionary nature of diplomatic protection, and may result in the investor securing a judgment which is enforceable directly in a domestic court. Where the dispute resolution procedures provided for in a BIT or by the ICSID are invoked, diplomatic protection is in most cases excluded. 77
Article 17 makes it clear that the Draft Articles do not apply to the alternative, special regime for the protection of foreign investors provided for in bilateral and multilateral investment treaties. However, it acknowledges that some treaties do not exclude recourse to diplomatic protection altogether. Hence the provision is formulated so that the Draft Articles do not apply ‘to the extent that’ they are inconsistent with the provisions of a BIT (or MIT). To the extent that the Draft Articles remain consistent with the BIT (or MIT) in question, they continue to apply. Covered also by the Article are provisions of treaties such as those relating to investments in treaties of friendship, commerce and navigation. In the Diallo Case (Preliminary Objections) before the ICJ the plaintiff State argued in favour of a change in the customary international law relating to the protection of shareholders of corporations by ‘substitution’, relying on treaties, such as the ICSID Convention, and the compromis governing certain arbitrations. The Court pointed out quite clearly that it could not agree that such a change had taken place, stating:
The fact invoked by Guinea that various international agreements, such as agreements for the promotion and protection of foreign investments and the Washington Convention, have established special legal régimes governing investment protection, or that provisions in this regard are commonly included in contracts entered into directly between States and foreign investors, is not sufficient to show that there has been a change in the customary rules of diplomatic protection; it could equally show the contrary. The arbitrations relied on by Guinea are also special cases, whether based on specific international agreements between two or more States, including the one responsible for the allegedly unlawful acts regarding the companies concerned (see, for example, the special agreement concluded between the American, British and Portuguese Governments in the Delagoa case or the one concluded between El Salvador and the United States of America in the Salvador Commercial Company case) or based on agreements concluded directly between (p. 36) a company and the State allegedly responsible for the prejudice to it (see, for example, the Biloune v Ghana Investment Centre case). 78
Clearly, the Court did not consider the treaties and compromis as being based on consistent practice backed by the required opinio iuris which could result in a change in the law. Rather to the contrary, it regarded such developments as special cases to be dealt with separately and on their merits.
There may also be special arrangements as a lex specialis for the protection of persons in the context of the EU. 79
Notes:
(1) The Roberts Claim (US v Mexico, 1926), 4 UNRIAA 77; the Neer Claim (US v Mexico, 1926), 4 UNRIAA 60.
(2) For a brief account of and history of the institution of diplomatic protection see Dugard, ‘First Report on Diplomatic Protection,’ (ILC), UN Doc. A/CN4/506 5 ff. This work is a useful reference point.
(3) Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (1955).
(4) See 78 AJIL (1984) 200.
(5) See 84 AJIL (1990) 545.
(6) See the separate opinion of Judge Padilla Nervo in the Barcelona Traction Co Case, 1970 ICJ Reports at 246.
(7) Dunn, The Protection of Nationals (1932) at 58. The use of force to protect nationals who are allegedly wronged—this is slightly different from the protection of nationals in the face of danger from civil war, for instance—raises other problems. It has not been mentioned in the ILC's final Draft Articles on Diplomatic Protection, although the rapporteur in his ‘First Report to the ILC’ did propose an Article on the subject: UN Doc. A/CN4/506 16 ff. The use of force is strictly not a matter of diplomatic protection which by its very name involves the use of peaceful remedies. However, some legal commentators use the term ‘diplomatic protection’ to embrace ‘consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, retorsion, severance of diplomatic relations, economic pressure, and, the final resort, the use of force’. See ibid 15, citing, among others, early writers such as Dunn and Borchard. The 2006 Draft Articles of the ILC, on the other hand, make it quite clear in Article 1 that the term covers only peaceful means of settlement.
(8) García Amador, ‘State Responsibility. Some New Problems’, 94 Hague Recueil (1958) 437–9, 472;García Amador, ‘Second Report to the ILC’, 2 YBILC (1957) 112–16. Bennouna, ‘Preliminary Report on Diplomatic Protection’, UN Doc. A/CN.4/484, paras 34–7, also advances an argument based on the existence of human rights mechanisms.
(9) Furthermore, the life of the law is not logic, perhaps, but experience. See Holmes, ‘The Path of the Law’, 10 Harvard Law Review (1897) 476 ff.
(10) Leigh, ‘Nationality and Diplomatic Protection’, 20 ICLQ (1971) 453.
(11) (1924), PCIJ Series A, No. 2, 12. The origin of this theory is traced to Vattel writing in 1758: ‘Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen.’ (The Law of Nations, 136.)
(12) Panevezys-Saldutiskis Railway Case, (1939) PCIJ Series A/B, No. 76 16, 17; the Nottebohm Case, 1955 ICJ Reports, 24.
(13) Joseph, Nationality and Diplomatic Protection—The Commonwealth of Nations (1969) 1; Leigh (note 10 above) 453; Geck, ‘Diplomatic Protection’, 1 EPIL (1992) 1046.
(14) Article 3(1)(b) of the 1961 Vienna Convention on Diplomatic Relations of States. The 1963 Vienna Convention on Consular Relations contains a very similar but somewhat more specific provision. Article 51 states:Consular functions consist in:(a) Protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law; …(e) Helping and assisting nationals, both individuals and bodies corporate, of the sending State.The 1967 European Convention on Consular Functions endorses this principle in Article 2(1): ETS No. 61.
(15) Borchard, The Diplomatic Protection of Citizens Abroad (1915) 354, quoting US Secretary of State Blaine, and 357.
(16) Joseph (note 13 above) 1. Refer also Leigh (note 10 above) 453.
(17) ‘Cours Général de Principes de Droit International Public’, 86 Hague Receuil (1954) 507.
(18) Bennouna (note 8 above) 4.
(19) Ibid.
(20) Article 1(1) of his draft: Dugard, ‘First Report on Diplomatic Protection’ (2000), UN Doc. A/CN.4/506, 11.
(21) Report of the ILC, 2006 16. The definition was approved and adopted by the ICJ in the Diallo Case (Preliminary Objections): 2007 ICJ Reports para 39 <http://icj-cij.org>. The ILC's treatment of State responsibility for injuries to aliens and its corollary, diplomatic protection, was at the beginning of its work rather confused, inter alia, with State responsibility in general. The first rapporteur on State responsibility, García Amador, included a number of draft articles on this subject in his reports presented from 1956 to 1961. The subsequent codification of State responsibility in 2001 paid little attention to diplomatic protection and the final Draft Articles on this subject expressly state that the two topics central to diplomatic protection—nationality of claims and the exhaustion of local remedies—would be dealt with more extensively by the Commission in a separate undertaking (Official Records of the GA, Fifty-sixth Session, Supplement No. 10) (UN Doc. A/56/10), commentary on Article 44, footnotes 722 and 726). Nevertheless, there was a connection between the Draft Articles on State responsibility and the final Draft Articles on diplomatic protection. While many of the principles contained in the Draft Articles on State responsibility were considered by the ILC as relevant to diplomatic protection, they were not repeated in the final Draft Articles on diplomatic protection. This applied in particular to the provisions dealing with the legal consequences of an internationally wrongful act. A State responsible for injuring a foreign national is obliged to cease the wrongful conduct and to make full reparation for the injury caused by the internationally wrongful act. This reparation may take the form of restitution, compensation or satisfaction, either singly or in combination. All these matters were dealt with in the Draft Articles on State responsibility (Report of the ILC to the GA, 2004 24–5). Articles on Diplomatic Protection were confined rules governing the admissibility of claims, ie to the elaboration of rules on the nationality of claims and the exhaustion of local remedies (Report of the ILC, 2006 23).
(22) See commentary on Article 1 of the final Draft Articles on diplomatic protection submitted by the ILC to the GA: ibid 24–8.
(23) The Draft Articles of the ILC on State Responsibility (for Internationally Wrongful Acts) maintains the same distinction: see Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (UN Doc. A/56/10) para 77.
(24) 1959 ICJ Reports 37. See also the Mavrommatis Palestine Concessions Case (1924), PCIJ Series A No. 2.
(25) 1949 ICJ Reports 174.
(26) 500 UNTS 95.
(27) 596 UNTS 261.
(28) The Mavrommatis Palestine Concessions Case (1924), PCIJ Series A No. 2; the Panevezys-Saldutiskis Railway Case (1939), PCIJ Series A/B, No. 76, 16; the Nottebohm Case, 1955 ICJ Reports 24.
(29) (1939), PCIJ Series A/B No. 76, 16.
(30) 1955 ICJ Reports 24.
(31) (1984), 5 Iran-US CTR 261.
(32) Borchard (note 15 above) 439 ff; Geck (note 13 above) 1061–3; Weiss, ‘Diplomatic Protection of Nationals and International Protection of Human Rights’, 4 HRJ (1971) 645.
(1) Oxford English Dictionary; Black's Law Dictionary (2004) 813. The term ‘institution’ had several meanings, even in a legal context, as the latter reference shows. The use of the term to refer to diplomatic protection is different from its use to describe international organizations, for instance.
(33) Dunn (note 7 above) 18 ff (my emphasis).
(34) Bennouna (note 8 above) 4. For Dugard's treatment of the subject in his reports to the ILC see his ‘First Report to the ILC’ (note 7 above) 15 ff.
(35) Articles 47–50 (note 23 above).
(36) See the intervention in 1983 by the US in Grenada, 78 AJIL (1984) 200, and the intervention in 1989 in Panama by the US, 84 AJIL (1990) 494, 545.
(37) For the Calvo Clause see Shea (note 3 above) and Chapter 12 herein.
(38) Papers Relating to the Foreign Relations of the United States, 1903 1–5.
(39) The Hague Conventions and Declarations of 1899 and 1907 (1915) 89.
(40) See García Amador, ‘First Report on State Responsibility’, 2 YBILC (1956) 221; Bennouna (note 8above) 4.
(41) Some writers draw no clear distinction between protection of the nationals of the injuring State (humanitarian intervention) and intervention by a State to protect its own nationals: see Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity (1985); Verway, ‘Humanitarian Intervention’, in Cassesse (ed), The Current Regulation of the Use of Force (1986) 57.
(42) Bowett, Self-Defence in International Law (1958) 96 ff.
(43) C F Amerasinghe, ‘Dispute Settlement by International Organizations,’ 43 IJIL (2003) 416 ff.
(44) Brownlie, International Law and the Use of Force by States (1963) 272 ff; Verdross and Simma, Universelles Völkerrecht: Theorie und Praxis (1984) 905.
(45) Bowett (note 42 above) 87 ff; Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’, 81 Hague Receuil (1952) 496 ff.
(46) 1986 ICJ Reports at 94.
(47) 1996 ICJ Reports 245.
(48) Bowett (note 42 above) 87 ff; Dinstein, War, Aggression and Self-Defence (1994) 222; Dahm, Völkerrecht (1961) 209. Pace Brownlie (note 44 above) 289 ff; Ronzitti (note 41 above).
(49) Jennings and Watts (eds), 1 Oppenheim's International Law, 440–2.
(50) In the United States Diplomatic and Consular Staff in Tehran Case, 1980 ICJ Reports 18, the ICJ, in a judgment on the merits, declined to pronounce on the legality of the unsuccessful US attempt to rescue hostages in the exercise of its inherent right of self-defence. Two individual judges, Morozov, at 57, and Tarazi, at 64, concluded that the rescue operation was not lawful. See on this case, D'Angelo, ‘Resort to Force by States to Protect Nationals: The US Rescue Mission to Iran and its Legality under International Law’, 21 VJIL (1981) 485.
(51) In the instances in which force has been used to rescue or protect nationals the SC has not reached a decision in favour of or against the interventions. Consequent upon the Entebbe raid in 1976 a resolution condemning Israel was not put to the vote: UN Doc. S/12139 (1976), 15 ILM 1227.
(52) The criticisms of the military interventions of the US in Grenada and Panama: 84 AJIL (1990) 545;Nanda, ‘US Forces in Panama: Defenders, Aggressors or Human Rights Activists? The Validity of United States Intervention in Panama under International Law’, 84 ibid (1990) 494.
(53) Borchard (note 15 above) 331, 447; García Amador (note 40 above) 216; Guha Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?’ 55 AJIL 863;Lillich, The Human Rights of Aliens in Contemporary International Law (1984) 14–15.
(54) Shaw, International Law (1997) 793; Jennings and Watts (eds) (note 49 above) 441.
(55) See 1976 UNYB 315–20; Margo, ‘The Legality of the Entebbe Raid in International Law’, 94 SALJ (1977) 306; Boyle, ‘The Entebbe Hostage Crisis’, NILR (1982) 32. The attempted rescue of hostages by the US in Tehran in 1979 may also be mentioned.
(56) In practice the right to use force in the protection of nationals has been asserted also to protect non-nationals, where they are threatened together with nationals of the protecting State: see Jennings and Watts (eds) (note 49 above) 442. In an emergency situation it will be both difficult and unwise to distinguish sharply between nationals and non-nationals. There should be no objection to the protecting State rescuing non-nationals exposed to the same immediate danger as its nationals, provided the preponderance of the threatened persons are nationals of that State. Where the preponderance of threatened persons are non-nationals the use of force might conceivably be justified as a humanitarian action but not as self-defence in the protection of nationals. Humanitarian intervention as such is not a subject included in this study. On the use of force to protect nationals and their property and by way of humanitarian intervention see C F Amerasinghe, ‘The Conundrum of Recourse to Force to Protect Persons’, 3 IOLR (2006) 7.
(57) The arrangements made pursuant to the ICSID Convention of 1965 (575 UNTS (1996) 159; 4 ILM (1965) 352) are pertinent. Under this Convention aliens are given rights to appear in arbitration proceedings with States as the other parties, while their national States have agreed to forego much of the initial right to exercise diplomatic protection, at least until a later stage in the settlement of the dispute (Article 27 of the Convention).
(58) Report of the ILC, 2006 21. For the commentary on which what follows is based, see ibid 86–9. The reference is evidently to peaceful means of protection.
(59) See Dugard (note 20 above), paras 22–32, and Chapter 8 herein.
(60) Article 41, 999 UNTS 171.
(61) Article 11.
(62) Article 21, 1465 UNTS 85.
(63) Article 24.
(64) Article 45.
(65) Articles 47–54, 1520 UNTS 217 ff.
(66) 1966 ICJ Reports 6.
(67) Official Records of the GA, Fifty-sixth Session, Supplement No. 10 (UN Doc. A/56/10), commentary to Article 48, footnote 766.
(68) Ibid.
(69) The Optional Protocol to the ICCPR, 999 UNTS 171; Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 22 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment.
(70) 2001 ICJ Reports 494.
(71) (2004) 26, para 40, <http://www.icj-cij.org>.
(72) The Article reads, ‘This part is without prejudice to any right, arising from the international responsibility of a State which may accrue directly to any person or entity other than the State’ (note67 above), para 76.
(73) In the Selmouni Case, Application No. 25803/94, Judgment of 28 July 1999, ECHR, 1999-V, 149, the Netherlands intervened in support of a national's individual complaint against France before the European Court of Human Rights. This did not preclude the Netherlands from making a claim in the exercise of diplomatic protection on behalf of the injured individual—had it chosen to do so.
(74) (note 58 above) 21. For what follows see the commentary to the Article, ibid 89–90.
(75) See the Barcelona Traction Co Case, 1970 ICJ Reports at 47 for an acknowledgement of this. The NAFTA may also be mentioned in connection with arrangements to protect aliens as investors or traders.
(76) 575 UNTS 159.
(77) See Article 27(1) of the ICSID Convention.
(78) 2007 ICJ Reports, para 90 (<http://www.icj-cij.org>).
(79) Stein, ‘Diplomatic Protection under the European Union Treaty’, in ILA, Report of the Seventieth Conference (2002) 277.
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