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The Injured Alien

Certain rules relating to diplomatic protection that have evolved and been applied in practice display an approach which stresses the important position of (p. 69) the individual in this context. They can only be explained on the premise that the law is basically interested in protecting the rights and interests of aliens themselves. In such cases, the law has not paid much attention to the principle that the right infringed is that of the national State. In a sense the law is interested in protecting directly the basic human rights of aliens:

1. (i) There are certain exceptions to the rule that the alien must have the nationality of the claimant State at the time of the injury. It is possible that a State may espouse the claim of an alien who is not its national as a result of an agreement made before or after the injury with the defendant State. In the same way, aliens may be under the special protection of a State, generally with the agreement of the host State, although they are not nationals of the former State. ²⁴ In these cases, it cannot be said that the law merely protects the rights of a particular State. Some allowance is being made for the protection of the rights of aliens through representation.

2. (ii) The exception to the application of the local remedies rule that the alien must not be caused undue hardship in exhausting local remedies recognizes the interests of the alien. ²⁵

3. (iii) The injury suffered by the alien is used as a scale for the calculation of damages. Although the ultimate reparation may involve more than the actual loss to the alien, ²⁶ the damage suffered by the alien is the basis for the award of reparation. Such damages awarded may include both damages for material loss and for moral injury suffered by the alien. Although the economic assets of an individual may, by a fiction, be regarded as part of the wealth of his national State, international law does not really treat such assets as being actually the property of the national State. As regards damage through personal injury including moral suffering, it would be difficult to regard the national State as having suffered such damage even by a legal fiction. Thus, it is clear that the law is here paying heed to the interest of the alien rather than that of his national State.

Such rules, and some of the rules already discussed above, demonstrate that international law recognizes also the nature of the claim as a private claim belonging to the alien, in contradistinction to the recognition given to the public nature of the claim, which has been asserted to be the real basis of diplomatic protection.