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The Defendant State

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Some of the rules applicable in the area of diplomatic protection are designed to protect the interests of the defendant State. The interests of the defendant State must naturally and legitimately be considered, as opposed to the interests of the claimant State. A few examples which demonstrate this position are given here:

1. (i) The rule, as it was, that the alien must not have the nationality of the defendant State both at the time of injury and continuously up to the time of the (p. 68) award, 22 is a concession to the defendant State. Even though the alien may be a national of the defendant State at the relevant time, there is technically a violation of the right of the other State whose nationality the alien enjoys.

2. (ii) The rule that local remedies must be exhausted before an international claim may be espoused recognizes the defendant State's interest, by affording such State the opportunity to redress the initial wrong committed. If the substantive rights of the alien's national State are violated, it is logically that State which must have the right to pursue immediately a claim against the defendant State, whether at the national, diplomatic, or international judicial level. The fact that the defendant State is given an opportunity to redress the wrong through its own judicial facilities which the alien must first exhaust reflects a concession to the interests of the defendant State.

3. (iii) In general, where a choice of interest is made between a defendant which is a national State and other national States in favour of the former, the policy behind that choice is the protection of the interests of the defendant State. 23

4. (iv) Where multiple claims may be instituted by national States which do not include the defendant State, it is an accepted proposition that there cannot be more than a single recovery of damages or compensation. This is a recognition of the defendant State's interests in not being penalized more than once, though technically and logically each national State has suffered an injury and merits being compensated.

5. (v) The practice of dispute settlement by resort to Claims Commissions and arbitral bodies, before which aliens have standing to bring claims themselves on the understanding that it is only the injury to them that will be compensated and not the total injury to the alien's national State, also to some extent puts the interests of the defendant State before those of the national State. The national State qua national State is not given complete recognition, or the best interests of the alien in having multiple sources of protection are overlooked in favour of other interests, although in certain cases the rules purport to give the alien the best protection possible through a single source.

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The Late Twentieth Century and Thereafter | Definition | Basic Content of the Concept | The Use of Force | Abstract and Keywords | A Critical Distinction—Diplomatic and Consular Action | Rights of International Organizations in Regard to their Staff | The Earliest Attempt | Consideration by the ILC | Abstract and Keywords |

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