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Abstract and Keywords

This chapter focuses on the basic interests underlying diplomatic protection. It discusses cases in support of the principle that the right infringed in cases where an alien suffers illegal injury at the hands of a State, is the right of the alien's national State and not the right of the alien himself. Examples are presented where the interests of the national State have been responsible for certain important and well-established rules in the law of diplomatic protection, and where interests of the defendant State must naturally and legitimately be considered, as opposed to the interests of the claimant State. The choices among competing interests and the international community's residual interest in having disputes involving States and aliens settled without escalation are considered.

Keywords: state, rights, alien, national state, competing interests, international community

While the protection of aliens by their national States in one form or another may predate the eighteenth century, it was not until the time of Vattel that a clear attempt was made to explain diplomatic protection. In 1758 Vattel rationalized the position by stating that ‘ Quiconque maltraite un citoyen offense indirectement l'État, qui droit protéger ce citoyen ’. ¹ He further explained that ‘the sovereign of the injured citizen must avenge the deed and, if possible, force the aggressor to full satisfaction or punish him, since otherwise the citizen will not obtain the chief end of civil society, which is protection’. ²

Although, as will be seen in Chapter 9, the duty of the national State to protect a national against the wrongdoing State has never been accepted as such, the principle that the right infringed in cases where an alien suffers illegal injury at the hands of a State is the right of the alien's national State and not the right of the alien himself, apparently deriving as it does from the theory that States alone are subjects of international law, has been recognized in several international judicial decisions. Starting with the Mavrommatis Palestine Concessions Case, the PCIJ stated that:

It is an elementary principle of international law that a State is entitled to protect its nations, 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 resorting to a diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law. ³

The point at issue in the case was whether the dispute, which originated in an injury to a national of the claimant State, was a dispute involving the Mandatory, (p. 64) the defendant State, and another State member of the League of Nations for the purposes of Article 26 of the British Mandate over Palestine. It was held that the dispute in issue was such a dispute for the reasons stated, even though it arose from an injury to a private individual.

Later, in the Panavezys-Saldutiskis Railway Case, which concerned the expropriation of a concession given to an Estonian company by the Lithuanian Government, the PCIJ, in dealing with the preliminary objection based on the nationality of claims rule, confirmed this view stating that ‘In the opinion of the Court, the rule of international law on which the first preliminary objection is based is that in taking up the case of one of its nationals, by resorting to diplomatic action in international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its national respect for the rules of international law’. ⁴ In the Serbian Loans Case, ⁵ where the dispute arose from the failure to service certain loans taken by the Serbian government from French bondholders, and in the Chorzów Factory Case, ⁶ which concerned the expropriation of alien property, the same principle was held to be applicable. In the former case the application of the principle resulted in the finding that the dispute before the court was one between States. In the latter case the court applied the principle concluding that the damage caused the claimant State was not identical with that which its national had suffered, a consideration which was relevant to the calculation of damages.

The ICJ has also affirmed the principle in several cases. In the Reparation Case, it said of the rule inhering in the institution of diplomatic protection that such protection must be exercised by the national State of the alien:

In the third place, the rule rests on two bases. The first is that the defendant State has broken an obligation towards the national State in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. ⁷

The principle was mentioned only incidentally in this case in the process of establishing another rule of international law, that international organizations too had rights of protection in respect of their officials in connection with the performance of their duties, such rights belonging to the organization and not to the official. ⁸ The principle was reaffirmed by the ICJ in the Nottebohm Case, ⁹ where limitations were placed upon the link of nationality between the individual and (p. 65) his national State, and implicitly in the Barcelona Traction Co Case, ¹⁰ where again the application of the nationality of claims rule was in issue.

There are several decisions of other international tribunals in which the principle has been recognized. Thus, in Administrative Decision No. V of the US-German Claims Commission it was stated that ‘the nation is injured through injury to its national and it alone may demand reparation’. ¹¹

These cases cover injuries arising from the alleged violation of customary international law as well as of treaties involving obligations undertaken vis-à-vis aliens. There is no reason to distinguish between customary international law and treaties with regard to the basic principle, that it is the right of the alien's national State that is infringed when an injury is done to an alien per se as a result of which diplomatic protection is exercised. It would be incorrect, therefore, to say that, where the substantive obligation is contained in a treaty the corresponding right is that of the national State, whereas in the case of an obligation under customary international law, the right is enjoyed not by the national State but by the alien himself.

The principle is also supported by opinions expressed by State legal advisers and in official correspondence. Thus in 1912 the Solicitor for the Department of State of the US said, ‘It should, in the first place, be observed that by espousing a claim of its national for injuries inflicted by a foreign government the espousing government makes the claim its own’. ¹² In the Finnish Ships Arbitration the UK government espoused the same view of diplomatic protection. ¹³ Many rapporteurs and draft codifications have unhesitatingly conceded that this principle underlies the doctrine of diplomatic protection. ¹⁴

There has been a growing dissatisfaction with this avowed basis of the law of diplomatic protection. Not only has it been attacked because of the purely logical inconsistencies the present law on the subject reveals, but it has been severely criticized by legal commentators on the ground that it is incompatible with the modern conception of fundamental human rights and freedoms. ¹⁵

(p. 66) While the basic principle must be recognized, and it is evident that many consequences which have been reflected in the current law of diplomatic protection flow from it, the law, as it has developed, has taken into account a variety of interests, thus confirming my view that the law is the result of compromises or of choices made from among the competing interests on the basis of different policies. It cannot be denied that the interests of the alien's national State (which owns the right involved as a complainant) and those of the host State (which is under the obligation as a defendant, in respect of the alien, as a result of the right-duty relationship between those two entities) are not the only interests which have shaped the current law. Although the formal incidence of rights and obligations may be established for the current law, the law has been shaped also by the influence of other conflicting interests involved. This factor is of importance in discussing particularly the role of nationality in diplomatic protection. For this reason, a brief overview of how the different interests have affected some of the rules relating to the law of diplomatic protection is given here.