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The evolution of the rules relating to diplomatic protection shows that logic has taken a second place and the competing interests involved have been taken into account and one or the other of them has been given recognition, so much that, while a place has been given to the basic principle that it is the right of the alien's national State that lies at the heart of the institution of diplomatic protection as it has developed, other interests have also been considered in the formulation, based on distinct policies, of some of the applicable rules. In particular, the interests of the injured alien have not been ignored, although it has often been stated that formally it is not the alien's rights that have been violated but those of his national State. The fact that the alien is per se involved in the situation has resulted in the formation of certain rules. Moreover, the interests of the host State (the defendant) have sometimes been given preference as opposed to the formal rights of the national State or the interests of the alien. Competition among these interests has been resolved in practice in relation to specific rules by choices in favour of one or the other, without any apparent order or scheme referable to a hierarchy of social policy values. Pragmatism, apparently, has governed. Thus, it is not possible to assert with any conclusiveness that one or the other of these interests is necessarily superior to any of the others. According to the traditional view, the interests of the national State of the alien generally or primarily provide the framework on which the law of diplomatic protection is built, and this is the formal mould in which the law is cast, although it may not be proper to describe it as the sole basis of the law of diplomatic protection.
The interests of the alien and of the host State are strong elements in determining the precise content of certain rules, so that they too merit consideration as a material basis of the law of diplomatic protection. In the event of competition among the various interests in an area where the rules are not clear, as noted above, it is difficult categorically to state which might or should be given preference, although it may be possible to assert that the formal structure of the law of diplomatic protection, resting as it does on the interests of the injured national State, may be given a prominent position in determining the result. However, the criticism may be cogent that the interests of the injured alien should be given particular recognition, especially in the context of modern developments in the law of human rights which are the result of increased concern for the protection of the individual. In the final analysis, as a matter of substance, the institution of diplomatic protection relates basically to a conflict situation involving host State and aliens, although formally the mould in which the law is cast may be limited to a relationship between two sovereign States. The fact that particularly the interests of the alien have shared in shaping the law demonstrates that the formal basis of the law has not always determined the direction of the law. However, the interests of the host or defendant State have called for recognition in addition to (p. 71) those of the injured alien. It may also be noted at this point that development of the law of diplomatic protection, whether for the purpose of codification or otherwise, especially by the ILC, tends rightly to take the form of raising the level of recognition given to the interests of the injured alien in securing international protection. 27 The comment may be made, however, that it is a mistake to ignore, to the extent of erasing, the relevance of the interests of the respondent State. To do so undermines one of the underpinnings of the institution of diplomatic protection. A much more balanced approach is required.
The argument has been made that on account of the development of the law relating to human rights protection, the focus of the law of diplomatic protection as a remedial process has changed and gives a distinct priority to the interests of the injured alien. There are available to him remedial procedures which will enable him to secure the protection of his substantive rights in respect of treatment as an alien which are now tantamount to human rights recognized as flowing from customary rules of international law or general principles of law. 28 A consequence of this view is that the interests of the alien in securing protection for the violation of substantive rights, even though these constructively belong to his national State, merit recognition in every situation to the exclusion of the interest of the respondent or host State. While there is no evidence that the current international law has adopted this stance, it is possible, as pointed out earlier, that the interests of the alien, because of the substantive human rights factor, have been given an important place—though not in total priority—in the development of the law of diplomatic protection which relates to remedial procedures. On the other hand, there has not been a complete disregard of the interests of the respondent State. It may be suggested that for the future the important place given now to the interests of the alien as an individual, and not merely as an alien, should not be disregarded in the development of the law of diplomatic protection. Indeed, as will be seen later, a measure of development of the law may be recommended by recognizing that the alien's rights as well as the national State's rights are infringed, where injuries are inflicted on him in violation of international law, so that he personally has the right to a remedy.
It is also doubtful whether it is appropriate that the interests of the host or respondent State should be eclipsed. Rather is it desirable that a suitable balance be found between the two sets of interests when in given circumstances there is a conflict between the two. Even in the systems of human rights protection, the development and application of the rule of local remedies, for example, has (p. 72) been based on appreciable recognition being given to the interests of the host or respondent State. 29It is thus not a good argument to say as an outright policy goal that at all costs the alien's resort to an international forum, with or without the intervention of his national State, must be facilitated and encouraged, whether what is in issue is the application of, for example, the rule of local remedies, the nationality rules, or the clean hands doctrine. To hold otherwise would change the whole character of the institution of diplomatic protection. It is a different matter to view as obsolete and ready to be replaced by a different remedial procedure the institution of diplomatic protection as currently structured. On the other hand, the fact is that in the present state of the international legal system the institution of diplomatic protection as it is being developed does afford valuable protection for aliens in the absence of universal procedures for the enforcement of human rights as such.
The International Community
Finally, it would be unwise and improper to overlook the fact that the international community has a residual interest in having disputes involving States and aliens settled without escalation. This interest is not a dominant one, though. It could, however, for instance, have had an influence on the current development of the local remedies rule with the exceptions that have been recognized in its application. In a sense this interest may be largely nebulous but its relevance may need to be kept in mind, if only residually. At the same time it must be emphasized that it is not as important as the other interests involved in situations where diplomatic protection may be exercised.
Notes:
(1) Le droit des gens (1758), Book II, Section 71.
(2) The Law of Nations or the Principles of Natural Law (1758) in Fenwick (trans), Classics of International Law (1916) 136. Earlier, Grotius had written what appears to have foreshadowed Vattel's bold and outright formulation; De Jure Belli ac Pacis (1625), Book II, Chapter 17, para 20, and Chapter 21, para 2. However, it was not until Vattel that the particular formulation referred to here was articulated.
(3) (Jurisdiction), PCIJ Series A No 2, 12 (1924).
(4) PCIJ Series A/B No 76, 16 (1938).
(5) PCIJ Series A No 20 (1929).
(6) Merits, PCIJ Series A No 17 (1928).
(7) 1949 ICJ Reports 181.
(8) See also Judge Badawi in a Dissenting Opinion: 1949 ICJ Reports 206. Judge Badawi expressly stated that the national State of the alien does not assert a claim as a ‘ répresantant legal de la victime ’ and thus defends not the right of the alien on his behalf but its own right.
(9) 1955 ICJ Reports 24.
(10) 1970 ICJ Reports 4. See also the Interhandel Case, 1959 ICJ Reports 27, where it was said that the applicant State adopted the cause of its national.
(11) US v Germany, 7 UNRIAA 140 (1924), per Umpire Parker. See also Administrative Decision No. II (US v Germany), 7 UNRIAA 26 (1923); the Finnish Ships Arbitration (Finland v Great Britain), 3 UNRIAA 1485 (1934); the Spanish Zone of Morocco Case (Great Britain v Spain), 2 UNRIAA 640 (1923); and the Dickson Car Wheel Co Claim (US v Mexico), 4 UNRIAA 678 (1931).
(12) Hackworth, 5 Digest, 488. See also the letter of Secretary of State Frelinghuysen of 11 February 1884, Moore, 6 International Law 616.
(13) Finnish Ships Arbitration (Finland v Great Britain), 3 UNRIAA 1485 (1934).
(14) García Amador, ‘First Report on State Responsibility’, 2 YBILC (1956) 192; the Guerrero Report adopted by the Sub-Committee of the League of Nations Committee of Experts, 2 YBILC (1956), Annex 1, 222; the Harvard Draft Convention of 1961, 2 YBILC (1956), Annex 9, 229; now Dugard, ‘First Report on Diplomatic Protection’ (ILC), UN Doc A/CN.4/506 5 ff, and Article 1 of the Draft Articles of the ILC on Diplomatic Protection and commentary on that Article, para 3.
(15) O'Connell, 2 International Law (1970) 1115; and García Amador (note 14 above) 199 ff.
(16) See the Panavezys-Saldutiskis Railway Case, PCIJ Series A/B No 76 (1938); the Reparation Case, 1949 ICJ Reports 181; the Nottebohm Case, 1955 ICJ Reports 23; Hyde, 2 International Law (1945), 893; O'Connell, (note 15 above) 1116 and the authorities there cited at note 17.
(17) Crawford, ibid 67–8 and 70.
(17) 1955 ICJ Reports 4.
(18) The North American Dredging Co Case (US v Mexico), 4 UNRIAA 29 (1926); Shea, The Calvo Clause (1955) 217; Hyde (note 16 above) 994; O'Connell, (note 15 above) 1151.
(19) The Chorzów Factory Case (Merits), PCIJ Series A No 17, 28 (1928).
(20) Frelinghuysen v US ex rel. Key, 110 US 63 (1884); US ex rel. Boynton v Blaine, 139 US 306 (1891); Heirs of Oswald v Swiss Government, 3 AD (1925–6) 244; US v La Abra Silver Mining Co Case, 175 US 423 (1899); Great Western Insurance Co v US, 19 Ct.Cl. 206 (1884); Hackworth, (note 12 above) 763 ff; and Feller, The Mexican Claims Commissions (1935) 84 and the authorities there cited at note 6. In Administrative Decision No V (US v Germany), 7 UNRIAA 152 (1924), the Umpire recognized this rule, while stating that in reality States distribute the proceeds of awards on the basis that the interests of individuals are involved.
(21) Moore, (note 12 above) 1012 ff; Borchard, The Diplomatic Protection of Citizens Abroad (1915) 366 ff; Whiteman, 1 Damages in International Law (1937), 282.
(22) Jessup, A Modern Law of Nations (1956) 100; and Van Panhuys, The Role of Nationality in International Law (1959) 73 ff. The exact rule has been the subject of discussion, although what is reflected above seems to be the better view. See also Award No. 31-157-2, 2 Iran-US CTR 160 ff (1983), where the rule was rejected. For a discussion of this rule, see below. Dugard, ‘First Report on Diplomatic Protection’ (ILC), UN Doc A/CN.4/506, 44 ff, proposes a change in this rule for codification and development on the basis of effective and dominant nationality. It is possible to disagree with his reasoning.
(23) See the discussion below in Chapter 10 of the nationality rules.
(24) The Reparation Case, 1949 ICJ Reports 181.
(25) See C F Amerasinghe, Local Remedies in International Law (2004) 200 ff, particularly 203. The rule of local remedies itself recognized the host State's interests. Some Articles on the rule, formulated for the ILC, are discussed in Dugard, ‘Second Report on Diplomatic Protection’, UN Doc A/CN.4/506 (2001) and Dugard, ‘Third Report on Diplomatic Protection’, A/CN.4/523 (2002). On the rule in general see C F Amerasinghe.
(26) See the Chorzów Factory Case (Merits), PCIJ Series A No 17 28 (1928).
(27) Some of the rulings of the Iran-US Claims tribunal show a tendency to take further account of the relationship between the alien and the host State and consequently to value more the interests of the alien; see Award No. 31-157-2, 2 Iran-US CTR 160 ff (1983). In these decisions, the role played by the interests of the national State of the alien seems to be under-emphasized, although formally the dispute settlement machinery was set in motion by an agreement between the host State and the national State of the aliens and was in essence in the exercise of diplomatic protection.
(28) Dugard in his reports to the ILC stresses this human rights aspect of diplomatic protection. There are others who do the same.
(29) See C F Amerasinghe (note 25 above) 203 ff.
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