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This chapter explores the relevance of the human rights factor to diplomatic protection. Developments in human rights, particularly the human rights treaties, have led some to argue that diplomatic protection is obsolete: the equality-of-treatment-with-nationals-standard and the international minimum standard of treatment of aliens is said to have been replaced by an international human rights standard, which accords to national and alien the same standard of treatment under the Universal Declaration of Human Rights. It is argued that the practice in the human rights area is not to deny the existence of a remedy through diplomatic protection, even though an alternative remedy through human rights procedures is available.
Keywords: international human rights standard, international law, equal rights
In the post-Second World War period there have been significant changes not only in international life and society but in international law's approach to the individual. The human rights of the individual not only in the civil and political areas but also in the social and economic fields have come to be regarded as important. While more than 150 of some 190-odd States are today parties to human rights conventions of one kind or another, in some cases the individual, whether alien or national, may bring complaints about the violation of his human rights to the attention of international bodies such as the United Nations Human Rights Committee, the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Commission on Human and Peoples' Rights.
The relevance of the modern recognition of the human rights of the individual is twofold. First, the emergence of this recognition both under the UN Charter provisions and through conventions has caused questions to be raised about the need for the institution of diplomatic protection in respect of aliens. The argument is that aliens, like any other individual, can resort to the protection given to them under the Charter and human rights conventions and do not need the institution of diplomatic protection. Second, the question may be asked whether the substantive law on State responsibility for injuries to aliens has come under the influence of the development of human rights standards so that the content of the international minimum standard for the treatment of aliens, which relates to primary rights and duties, has been upgraded.
The second question, which may very well have to be answered in the affirmative, strictly does not concern the institution of diplomatic protection, which consists of a remedial procedure. Modern developments, both under conventional and customary law, in human rights do point towards an upgrading of the rights of aliens. However, these concern primary rights and not remedial procedures.
The first issue does concern diplomatic protection as a remedial procedure and is dealt with here. The developments, particularly the human rights treaties, have led some to argue that diplomatic protection is obsolete: the equality-of-treatment-with-nationals-standard and the international minimum standard of (p. 74) treatment of aliens, it is said, have been replaced by an international human rights standard, which accords to national and alien the same standard of treatment—a standard incorporating the core provisions of the Universal Declaration of Human Rights; the individual is now a subject of international law with standing to enforce his or her human rights at the international level; the right of a State to claim on behalf of its national should be restricted to cases where there is no other method of settlement agreed on by the alien and the injuring State; in such a case the claimant State acts as agent for the individual and not in its own right; and the right of a State to assert its own right when it acts on behalf of its national is an outdated fiction which should be discarded—except, perhaps, in cases in which the real national interest of the State is affected. 1
In passing, it may be observed that in any case, to rely on the argument that an institution which is based on a fiction should be dismissed simply because it is based on a fiction, is a mistake. An institution like diplomatic protection which serves a purpose is not to be dismissed simply on the ground that it is premised on a fiction and cannot stand up to logical scrutiny. Most legal systems have fictions. Moreover, diplomatic protection, it will be seen, rather recognizes a mixture of interests and is not based on fictions as such. 2
The suggestion that developments in the field of international human rights law of a procedural nature have rendered diplomatic protection obsolete, on the other hand, is more serious. The first Special Rapporteur of the International Law Commission on the subject of State responsibility, stated that the traditional view of diplomatic protection that allowed the State to claim on behalf of its injured national belongs to an age in which the rights of the individual and the rights of the State were inseparable and that now the position is completely different. He argued that aliens, like nationals, enjoy rights simply as human beings and not by virtue of their nationality, and concluded that the alien had been internationally recognized as a legal person, independently of his State, and was a true subject of international rights. 3 A necessary implication of this reasoning is that the individual, now a subject of international law, with rights and duties under international law, should, other than in exceptional cases, look after himself when he ventures abroad.
It may be that the individual has in certain circumstances become a subject of international law with rights recognized by the law as a consequence of being endowed with these rights by States under customary or conventional law. But it is also true that, while the individual may have rights as a subject under (p. 75) international law, his remedies are limited and this is of significant importance. While the European Convention on Human Rights may offer real remedies to many Europeans and those in European states, it is difficult to accept the argument that the American Convention on Human Rights or the African Charter on Human and Peoples' Rights have achieved the same degree of success. Moreover, the majority of the world's population, situated in Asia, is not covered by a regional human rights convention. To observe that universal human rights conventions, particularly the International Covenant and Political Rights, provide individuals with effective remedies for the protection of their human rights is inaccurate. Only a few individuals in the limited number of States which accept the right of individual petition to the monitoring bodies of these conventions have obtained or will obtain satisfactory remedies from these conventions. Universal and regional human rights conventions do extend protection to all individuals—national and alien alike—within the territory of States parties. But there is no multilateral convention that seeks to provide the alien with remedies for the protection of his rights, though in the field of foreign investment alone the multilateral ICSID Convention may to some extent do so.
It is observed that the GA of the UN adopted in 1985 the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live. 4 This instrument expressly sought to extend the rights contained in the Universal Declaration of Human rights to aliens. That was a substantive matter. But the Declaration provided no machinery for its enforcement. On the other hand, it reiterated the right of the alien to get in touch with his consulate or diplomatic mission for the purpose of protection. Thus, it was recognized that the institution of diplomatic protection not only survived but was largely a remedial process relating to secondary rights and obligations. The current position is that aliens as individuals have practically no remedies under international law, in the absence of a human rights treaty, except through the intervention of their national States.
A development conceivably concerned with the relevance and survival of diplomatic protection as an institution in the modern era of human rights protection was the formulation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 5which was adopted in 1991 by the GA of the UN. The convention sought to establish a Charter of rights for migrant workers. There was a provision for a monitoring body similar to the UN Human Rights Committee and for an optional right of individual petition. That this institution of protection did not replace the rights of diplomatic protection was emphasized by Article 23, which provided that ‘Migrant workers and members of their families shall have the right to have (p. 76) recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the Present Convention are impaired …’. This Convention has not yet been brought into force by the required number of ratifications, which, moreover, suggests that States are not ready to extend special and individual remedial rights to migrant workers. Further, a point of importance is that the right of workers to seek diplomatic protection from their national States was expressly left untouched.
It is important to recognize that at any given point in time, even though the formal mould of diplomatic protection was and is a relationship between States, the true essence of the law of diplomatic protection was and is substantively regard for the interests of individuals. This is so, although the category of individuals is restricted essentially to those with an alien nationality, excluding in principle the nationals of the defendant State. State practice, international case law, and legal commentators have not articulated this truth as such, but may have explained, when given a chance, the foundations of the rule in a more limited manner. Moreover, while in the past the substantive rights of the individual which were respected may have been limited in comparison to what modern human rights conventional (and, perhaps, customary) law now protects, the law of diplomatic protection was based on the notion that in effect the interests (and, in reality, the rights) of the individual deserved and required protection. In a sense, there was in diplomatic protection an incipient law of human rights protection. The basic concerns in the two areas are really very similar, 6 although legal articulation of those concerns in the law of diplomatic protection may have been different and in a manner indirect and rudimentary.
This recognition of human rights as deserving protection which was not articulated in this way, however, is not related in any direct way to the growth of modern human rights law which is conceivably broader both substantively and procedurally. On the substantive side, modern human rights law, which grew in the latter half of the twentieth century, may influence the content of the substantive rights (or interests) of aliens determined by an international minimum standard which is the basis for such rights in the law relating to the treatment of aliens. Yet, clearly, the awareness of the need to respect the (human) rights or interests of individuals (in the persons of aliens only) long pre-dated the modern law of human rights. Nor was it connected particularly with the interaction between developed and developing States which can be traced fully to the post-Second World War era, even though Latin American States were involved in the application of the law in the nineteenth century.
(p. 77) It would, therefore, be wrong to deny or gloss over the essential similarity, unarticulated though it was, of the fundamental purpose and basis of the law of diplomatic protection and modern human rights law. At the same time, it is necessary to recognize that the practical approach to both the substantive and the remedial aspects of human rights protection, which has derived in one way or another from conventional instruments, may be different from that taken to such aspects in the law of diplomatic protection as such, regardless of some similarity of purpose and basis.
Substantively, international human rights law does not consist of human rights conventions only. In fact there is a whole body of conventions and customs, including the remedial institution of diplomatic protection, that together comprise international human rights law. The International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples' Rights and other universal and regional human rights instruments are important, particularly as they extend protection to both alien and national in the territory of States parties. 7 But the remedies in most of these instruments are weak. Diplomatic protection, only available to protect individuals against a foreign State on the other hand, is based on customary rules of international law which apply universally and, potentially, offer a very effective remedy. It is possible that States in general may treat a claim of diplomatic protection from another State more seriously than an individual's complaint against its conduct to a human rights monitoring body. 8
Contemporary international human rights law accords to nationals and aliens the same protection which may, on the one hand, now exceed the international minimum standard of treatment for aliens set by western powers in an earlier era. But it does not follow that these developments have rendered obsolete the traditional procedures recognized by customary law in connection with the treatment of aliens. 9 Although individuals today enjoy more international remedies for the protection of their rights than before, diplomatic protection remains an important remedial procedure for what is in reality now the protection of human rights. As long as the State remains the dominant actor in international relations, the espousal of claims by States for the violation of the rights of their nationals (p. 78) remains a most effective remedy for the protection of human rights, 10 though the area affected may be limited. The crux of the matter is that, as the substantive and procedural law now stands in the international legal system and considering the present state of international society, it would be foolhardy to abandon the institution of diplomatic protection. As has been said,
It cannot be denied, …, that diplomatic protection has always been abused, and that the stronger States are in a better position in the performance of diplomatic protection. Thus, the fault lies primarily in too harsh practices and not in the institution itself …
As far as human rights are developed and strengthened, diplomatic protection may lose some of its significance. However, human rights will probably not be able to supersede diplomatic protection in its entirety.
As long as diplomatic protection cannot be replaced by any better remedies, it is necessary to keep it, because it is badly needed, and its advantages outweigh its disadvantages in any case. 11
The acid test for the recognition of diplomatic protection as a useful and viable institution may be whether, where a human rights remedial procedure is also available, an injured alien would rather appeal to his national State for diplomatic protection. There is no clear answer in the abstract to this question. That the availability of alternative or cumulative remedies gives the alien greater protection, however, must be and is generally conceded. The practice in the human rights area is not to deny the existence of a remedy through diplomatic protection, even though an alternative remedy through human rights procedures is available.
Notes:
(1) García Amador, ‘State Responsibility. Some New Problems’ (1958 II) 94 Hague Receuil 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.
(2) Furthermore, the life of the law is not logic, perhaps, but experience. For this idea see Holmes, ‘The Path of the Law’, 10 Harvard Law Review (1897) 476 ff.
(3) García Amador (note 1 above), Hague Receuil 421.
(4) General Assembly Resolution 40/144, annex.
(5) See General Assembly Resolution 45/158, 30 ILM (1991) 1517. On this Convention see Cholewinski, Migrant Workers in International Human Rights Law (1997).
(6) This point was made systematically for the first time in history by me in 1967 in my State Responsibility for Injuries to Aliens (1967) 11 ff. García Amador had touched on the matter of human rights protection in (note 1 above), Hague Receuil, and 2 YBILC (note 1 above) but only to use it as a means to dismissing diplomatic protection as superfluous. There was a difference in his observations on the relevance of human rights.
(7) For example, Article 2(1) of the International Covenant on Civil and Political Rights requires parties ‘to respect and to ensure to all individuals within its territory’ the rights recognized in the Covenant. See, also Article 1 of the European Convention on Human Rights; Article 2 of the African Charter on Human and Peoples Rights.
(8) A complaint from an individual under the European Convention on Human Rights backed by a foreign government is likewise likely to carry more weight: see Soering v UK, ECHR Series A, No 161 (1989) (West Germany intervening); Selmouni v France, Application No 25803/94, Judgement of 28 July 1999 (Netherlands intervening); Denmark v Turkey, Application No 34382/97, Judgement of 8 June 1999.
(9) In the Barcelona Traction Co Case, 1970 ICJ Reports 165, Judge Jessup said: ‘The institution of the right of diplomatic protection is surely not obsolete although new procedures are emerging. ’
(10) For the ideas in the above two paragraphs with which I agree see Dugard, ‘First Report on Diplomatic Protection’ (ILC), UN Doc A/CN.4/506, 5 ff.
(11) See Przetacznik, ‘Protection of Individual Persons in Traditional International Law (Diplomatic and Consular Protection)’, 21 ÖZÖR (1971) 113.
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