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This chapter explores the duty or absence of a duty of States to protect their nationals abroad against a host State. The traditional view that a State has a right to protect nationals, but no duty to do so, is upheld. Hence, under international law a State has no duty to protect its nationals. This is so, even though, pursuant to the laws of some States, the State may have a duty — enforceable under national law — to protect its nationals. Those national provisions must be regarded as insufficient to establish a consistent practice with an opinio iuris giving rise to a customary rule of international law. The duty to protect, recognized in some national laws, is not a duty which States regard as obligatory even if the practice is sufficiently widespread — which it may not be.
Keywords: diplomatic protection, state, nationals, opinio iuris
As already pointed out, in 1758 Vattel rationalized diplomatic protection by stating that, ‘Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen’. 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 civilized society, which is protection’. 2
Vattel's thesis not only asserted the rights of the national State of the alien to protect its national, but implied that there was an obligation resting upon the alien's national State to protect him. Vattel conceived of the right of protection as inhering in the national State of the alien and did not envisage the injury done to the alien as creating any right vesting in the alien at international law to a remedy from the host State. A consequence was that the injury done to the alien was regarded as being a violation of an obligation owed by the host State to the alien's national State. Formally, this explanation was the result of the theory that the individual had no rights at international law. 3 On the other hand, it is not clear what Vattel meant by the duty to protect a national abroad which he stated rested upon the national State of the alien. Assuming he was correct in postulating a duty of protection—and this is not certain in the light of subsequent developments in diplomatic protection, the practice of reprisals prior to his time, and the practice of diplomatic protection even during his time—a question to be answered is to whom was the duty owed, particularly if the alien as an individual had no rights recognized by international law. Vattel did not venture to answer this question, nor was the issue seriously faced by the authorities who (p. 80) followed him. However, the right and duty of States to protect their nationals abroad against a host State was strongly asserted later, in discussing diplomatic protection, by legal commentators, among them Fauchille, 4 Oppenheim, 5 and Holland. 6
Be that as it may, later and now, the accepted doctrine of diplomatic protection gives a State the right to protect its national but does not place it under an obligation to do so. Consequently, the national of the State which has suffered injury abroad has no right to diplomatic protection under international law. Borchard made the position clear, stating in 1915 that:
Many writers consider diplomatic protection a duty of the State, as well as a right. If it is a duty internationally, it is only a moral and not a legal duty, for there is no means of enforcing its fulfillment. Inasmuch as the State may determine in its discretion whether the injury to the citizen is sufficiently serious to warrant or whether political expediency justifies the exercise of the protective forces of the collective in his behalf—for the interests of the majority cannot be sacrificed—it is clear that at international law there is no legal duty incumbent upon the State to extend diplomatic protection. Whether such a duty exists towards the citizen is a matter of municipal law of his own country, the general law being that even under municipal law the State is under no legal duty to extend diplomatic protection. 7
He further made it clear that the injured individual (national) had no rights, which meant that the State did not owe him a duty of protection in international law:
It is hardly correct … to speak of the citizen's power to invoke the diplomatic protection of the Government as a ‘right’ of protection …. At best, therefore, it is an imperfect right … Being devoid of any compulsion, it resolves itself merely into a privilege to ask for protection. Such duty of protection as the Government may be assumed to owe to the citizen in such cases is a political and not a legal one, responsibility for the proper execution of which is incurred to the people as a whole, and not to the citizen as an individual. 8
This position was approved most importantly by the ICJ in the Barcelona Traction Case in 1970, where it stated that:
within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it sees fit, for it is its own right that the State is asserting. Should the national or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to international law, if means are available, with a view to furthering their cause or obtaining redress …
(p. 81)
The State must be viewed as the sole judge to decide whether its protection will be granted, and to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. 9
The rapporteur of the ILC on diplomatic protection made an analysis which revealed a body of evidence which he interpreted as showing that the law was moving in a different direction. 10 Most writers now accept the traditional position 11 although there has been some opposition to it. C de Visscher, for example, stated that ‘the absolute discretion left to the State in the exercise of protection goes ill with the principle that the treatment due to aliens is a matter of international law’. 12
While diplomatic protection may be seen as a means for the furtherance of the international protection of human rights, it is not possible to describe diplomatic protection as an individual human right. Two human rights instruments concerned with the right of aliens support this view. The 1985 United Nations General Assembly Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They Live 13 and the 1991 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 14 both affirm the right of the alien to have recourse to his diplomatic or consular mission for protection but place no explicit duty on the State of nationality to protect him. 15
Recent discussions in the Sixth Committee of the GA illustrate the divergence of views on this issue. Most speakers 16 considered that the decision whether or not to exercise diplomatic protection was the sovereign prerogative of the State with (p. 82) a full discretion. One delegate stated that States might be influenced by over-riding foreign policy concerns in declining the exercise of that right. Moreover, as the individual's claim may be unfounded in international law, the exercise of diplomatic protection should remain within the discretion of the State in order to prevent the individual from putting the State in a ‘futile position’. 17 There was also a discussion in the Sixth Committee of the GA of whether diplomatic protection should be considered a human right which could then be construed as giving the individual a right to be protected by his national State and as imposing a corresponding duty on his national State to protect him. One delegate expressed doubts about such a possibility, maintaining that such a view was not supported by existing international law and could not be expected to become part of the legal order in the near future. 18 Another called for the examination of the legal basis (in the views and practice of States) of the right possessed by the individual and pointed to the necessity of considering whether it could be categorized as a human right. 19 The Spanish delegate appeared to support the view that the right to diplomatic protection was a human right, as he contended that the individual had a right to compensation for violations of his rights, as well as for the lack of diplomatic protection. 20 Discussion in the Sixth Committee thus revealed that some members of the international legal society do believe in one way or another that the individual should be entitled to diplomatic protection as a matter of right, while many do not.
Although limited, some constitutional provisions in a number of States, mainly those belonging to the former communist bloc, recognize the right of the individual to receive diplomatic protection for injuries suffered abroad. These include Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao People's Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the Republic of Macedonia, Turkey, Ukraine, Vietnam, and the Federal Republic of Yugoslavia. Usually the relevant article of the constitution contains formulations such as that the State shall protect the legitimate rights of its nationals abroad or that nationals of the State shall enjoy protection while residing abroad. The Italian, Spanish and Turkish constitutional provisions contain very vague and loose formulations providing for the protection of certain rights of workers abroad or, in the case of Spain, state that the State ‘shall try to safeguard the economic and social rights’ of its nationals working abroad. 21 The constitution of the Republic of Macedonia is even more limited, stating that the State ‘cares for’ the well-being of its nationals abroad. (p. 83) At the other end of the spectrum, the constitutions of the Republic of Korea and Guyana establish the ‘duty’ of those States to protect their nationals abroad. Ukraine ‘guarantees’ protection, the Polish constitution refers to the right of the individual national to protection abroad, and the Hungarian constitution states that ‘Hungarian citizens are entitled to enjoy the protection’ of Hungary while residing abroad. 22 It is uncertain whether and to what extent those rights are enforceable under the national law of those States, and whether they go beyond the right of access to consular officials abroad. 23 On the other hand, they suggest that certain States consider diplomatic protection for their nationals abroad to be desirable. Other State practice on this matter in the international field is not copious, although a few constitutions may refer in one way or another to a ‘duty’ to protect.
Some judicial practice is available. The German Federal Constitutional Court and other German courts have in their decisions confirmed the constitutional obligation on the part of the German authorities to provide diplomatic protection, if certain prerequisites are met. 24 Besides conditions imposed by international law, diplomatic protection must be granted only if it ‘does not run counter to truly overriding interests of the Federal Republic’. 25 This condition has been interpreted by the courts to give the political authorities a discretion to determine whether overriding interests of the State and the people as a whole preclude diplomatic protection. Although Israel lacks any formal legal provisions requiring the State to protect Israeli nationals abroad and the exercise of such protection is usually seen to fall within the discretion of the government, the Supreme Court held in 1952 that the State has a duty to protect a national in an enemy country ‘insofar as it is able to defend him through the good offices of a friendly Government’. 26 A similar decision was reached by the Haifa District Court in 1954.27
In Switzerland, court decisions take the view that the government does not have a duty to exercise diplomatic protection on behalf of its nationals, 28 though certain provisions of the constitution and the 1967 Consular Regulations recognize a limited duty on the part of Swiss consular missions to protect Swiss (p. 84) nationals, unless it would prejudice the interest of the Confederation. 29 The UK courts do not recognize the right of individuals to enforce the Crown's duty of diplomatic protection before domestic courts. 30 However, the view has been expressed that it is possible to argue now that British citizens have at least a ‘legitimate expectation’ that they will be afforded diplomatic protection, if the conditions stated in the rules of the UK applying to international claims (continuous nationality, exhaustion of local remedies, etc) are fulfilled. 31 In France, the right to exercise diplomatic protection is an acte de gouvernement —which is not subject to review by administrative bodies or courts. 32Although there is no general duty on the part of the executive to exercise diplomatic protection on behalf of nationals in the United States of America, it has been held by the judiciary that the so-called Hostage Act requires the president to intervene whenever a United States citizen has been ‘unjustly deprived of his liberty by or under the authority of any foreign government.’ In such a case the ‘president shall use such means not amounting to acts of war and not otherwise prohibited by law, as he may think necessary and proper to obtain or effectuate the release.’ 33 In a number of cases brought before other national courts Dutch, Spanish, Austrian, and Belgian claimants have attempted to assert a right, vis-à-vis their national States, to diplomatic protection. 34 The cases were not decided in their favour. All that can be said is that the submission of the claims indicates that the claimants, at any rate, believed that they had such a right vis-à-vis the State.
On the basis on balance of all the above evidence a conclusion has been reached that
there are signs in recent State practice, constitutions and legal opinion of support for the view that States have not only a right but a legal obligation to protect their nationals abroad. This approach is in conflict with the traditional view. It cannot, however, be dismissed out of hand as it accords with the principal goal of contemporary international law, - the advancement of the human rights of the individual.’ 35
(p. 85) As a sequel to this conclusion the rapporteur to the ILC, with the intention of ‘developing’ the law, proposed two articles as follows, which he concluded reflected rules different from what were the traditional rules:
Article 3
The State of nationality has the right to exercise diplomatic protection on behalf of a national unlawfully injured by another State. Subject to article 4, the State of nationality has a discretion in the exercise of this right. 36
Article 4
1. (1) Unless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State.
2. (2) The State of nationality is relieved of this obligation if:
1. (a) The exercise of diplomatic protection would seriously endanger the overriding interests of the State and/or its people;
2. (b) Another State exercises diplomatic protection on behalf of the injured person;
3. (c) The injured person does not have the effective and dominant nationality of the State.
3. (3) States are obliged to provide in their municipal law for the enforcement of this right before a competent domestic court or other independent national authority. 37
The question to whom the obligation to protect under Article 4 above was owed was not clearly answered, unless it is to be presumed that the obligation was one owed erga omnes.
The ILC, however, was careful in its draft together with a commentary, 38 submitted to the GA after a first reading, to take a view in accord with the traditional view rather than adopt the conclusion of the rapporteur that the law should be ‘developed’. Article 1 of the draft pointed out that a State in exercising diplomatic protection adopted ‘in its right the cause of its national’, 39 thus avoiding any reference to right of the national and emphasizing the rights of the State of nationality. Article 2 then provided:
A State has the right to exercise diplomatic protection in accordance with the present draft articles. 40
(p. 86) The Article did not refer to a duty of the State but rather incorporated the view that the State had a right, in the sense of a liberty, which could not be interfered with by others, to exercise diplomatic protection on behalf of an individual, provided the conditions set forth in the draft Articles were satisfied. The commentary to this Article makes the position clear that diplomatic protection neither imposed a duty on the State affording diplomatic protection nor gave the individual concerned a right recognized by international law to diplomatic protection with a corresponding obligation being imposed by international law on such State.
The commentary 41 pointed out that Article 2 stressed that the right of diplomatic protection belonged to or vested in the State, giving recognition to the Vattelian notion that an injury to a national was an indirect injury to the State, a view which had been formulated more carefully by the PCIJ in the Mavrommatis Palestine Concessions Case. There it was said that, ‘By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right—its right to ensure, in the person of its subjects, respect for the rules of international law.’ 42 Furthermore, although that view had been frequently criticized as a fiction difficult to reconcile with the realities of diplomatic protection which require continuous nationality for the assertion of a diplomatic claim, the exhaustion of local remedies by the injured national, and the assessment of damages suffered to accord with the loss suffered by the individual, in the view of the ILC, the ‘Mavrommatis principle’ or the ‘Vattelian fiction’ (as the notion that an injury to a national is an injury to the State had come to be known) remained the cornerstone of diplomatic protection.
On the next question whether there was a duty imposed on the national State to protect its national, the commentary unequivocally stated that a State had the right to exercise diplomatic protection on behalf of a national, but was not under a duty or obligation to do so, and that, even though the internal law of a State might obligate a State to extend diplomatic protection to a national, international law imposed no such obligation. The statement of the ICJ in the Barcelona Traction Co Case was cited:
… within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to municipal law, if means are available, with a view to furthering their cause or obtaining redress … The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. 43
(p. 87) The commentary also recorded the fact that a proposal that a limited duty of protection be imposed on the State of nationality had been rejected by the ILC as going beyond the permissible limits of progressive development of the law. 44
The final Draft Articles of 2006 did not change this position. 45 However, the ILC did refer, in the commentary to Article 2, to a later Article 19 which is discussed below.
Thus, for the present and for the foreseeable future, the traditional view that a State has a right, in the sense of a liberty which cannot be interfered with, to protect nationals but no duty to do so has been upheld. Hence, at international law a State has no duty, owed erga omnes or otherwise, to protect its nationals. This is so, even though, pursuant to the laws of some States, the State may have a duty, enforceable under national law, to protect its nationals. Those national provisions must be regarded as insufficient to establish a consistent practice with an opinio iuris giving rise to a customary rule of international law. It would appear that the duty to protect, recognized in some national laws, is not a duty which States regard as obligatory (observed under an opinio iuris) under international law, even if the practice is sufficiently widespread—which it may not be.
It may be noted, nevertheless, that the ILC in its final Draft Articles on Diplomatic Protection submitted to the ILC in 2006 recommended as desirable practices in Article 19 that:
1. (a) a national State should give due consideration to the possibility of exercising diplomatic, protection, especially when a significant injury had occurred, and
2. (b) take into account, wherever feasible, the views of injured persons with regard to diplomatic protection and the reparation to be sought. 46
There is in the wording of this Article a clear understanding, as the commentary indicates, 47 that the practices advocated are not required by international law but are only recommended as desirable. However, the commentary is confusing in that it does imply later that what are said to be recommended practices may already reflect the current law. Thus, the commentary on Article 19 states:
(1) There are certain practices on the part of States in the field of diplomatic protection which have not yet acquired the status of customary rules and which are not susceptible to transformation into rules of law in the exercise of progressive development of the law….
(2) Subparagraph (a), recommends to States that they should give consideration to the possibility of exercising diplomatic protection of behalf of a national who suffers significant injury. The protection of human beings by means of international law is today one of the principal goals of the international legal order, as was reaffirmed by the 2005 World (p. 88) Summit Outcome resolution adopted by the General Assembly on 24 October 2005. 48 This protection may be achieved by many means, including consular protection, resort to international human rights treaties mechanisms, criminal prosecution or action by the Security Council or other international bodies—and diplomatic protection … When the protection of foreign nationals is in issue, diplomatic protection is an obvious remedy to which States should give serious consideration. After all it is the remedy with the longest history and has a proven record of effectiveness …
(3) A State is not under international law obliged to exercise diplomatic protection on behalf of a national who has been injured as a result of an internationally wrongful act attributable to another State. The discretionary nature of State's right to exercise diplomatic protection is affirmed by draft articles and has been asserted by the International Court of Justice 49 and national courts, 50 … Despite this there is growing support for the view that there is some obligation, however imperfect, on States, either under international law or national law, to protect their nationals abroad when they are subjected to significant human rights violations. The Constitutions of many States recognize the right of the individual to receive diplomatic protection for injuries suffered abroad, 51 which must carry with it the corresponding duty of the State to exercise protection. Moreover, a number of national court decisions indicate that although a State has a discretion whether to exercise diplomatic protection or not, there is an obligation on that State, subject to judicial review, to do something to assist its nationals, which may include an obligation to give due consideration to the possibility of exercising diplomatic protection. 52 In Kaunda and Others v. President of the Republic of South Africa the South African Constitutional Court stated that:
There may be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable and a court would order the government to take appropriate action. 53
In these circumstances it is possible to seriously suggest that international law already recognizes the existence of some obligation on the part of a State to consider the possibility of exercising diplomatic protection on behalf of a national who has suffered a siginificant injury abroad. If customary international law has not yet reached this stage of development then draft article 19, subparagraph (a), must be seen as an exercise in progressive development.
(4) Subparagraph (b) provides that a State ‘should’, in the exercise of diplomatic protection, ‘take into account, wherever feasible, the views of injured persons with regard (p. 89) to resort to diplomatic protection and the reparation to be sought’. In practice States exercising diplomatic protection do have regard to the moral and material consequences of an injury to an alien in assessing the damages to be claimed. 54 In order to do this it is obviously necessary to consult with the injured person. So, too, with the decision whether to demand satisfaction, restitution or compensation by way of reparation. This has led some scholars to contend that the admonition contained in draft article 19, subparagraph (b), is already a rule of customary international law. 55 If it is not, draft article 19, subparagraph (b), must also be seen as an exercise in progressive development. 56
It involves a contradiction to maintain that a practice is law pursuant to a codification, albeit as reflecting a progressive development, when at the same time in that codification it is only a recommended practice. It is presumed, consequently, that Article 19 paragraphs (a) and (b) do no more than make a recommendation and do not lay down rules of international law pursuant to progressive development of the law. Clearly, however, the practices recommended, if adopted generally and accompanied by an opinion iuris, could lead to the formation of rules of customary international law in the future. Such rules of law which could emerge are to be recommended as progressive development of international law. 57
While what is included in Article 19(a) and (b) is to be supported as acceptable progressive development, whether or not subjection of a decision by the national State not to protect its national to judicial review by the court of the national State is required, the imposition of duties upon the national State in regard to the protection of its nationals creates problems. The question arises to whom are the duties owed and who can enforce them at international law. Even if the national (p. 90) may have a right to contest the decision not to protect him in the courts of his national State, this may not be the sole source of effectiveness especially in a case where the courts hold against him in a manifestly unjust decision. If there is no recourse to the national courts available, even then how can the decision to deny protection be contested not only at the national but also at the international level?
The answer to this question seems to lie in postulating that the duties incumbent upon the national State in connection with the protection of the alien are owed at large to the international community of States, ie erga omnes. This means that any other State may take up the individual's cause vis-à-vis his national State (but not against the respondent State in a dispute). Without this solution, the obligations upon national States in connection with the protection of their nationals would be toothless and illusory, because there would be no means of contesting the issues at an international level. The international community of States, it could be said, have an interest in intervening in the situation.
All in all, with the suggestion made above as to the rights of States at large corresponding to the duties of the national State, the idea of developing the international law by imposing upon the national State obligations connected with the protection of its national is to be welcomed. This development conflicts with the seminal view that it is solely the right of the national State that is being asserted in diplomatic protection. But the recognition of the interests of the individuals in this development is a truly progressive development. In particular it does not substantially affect the position of the respondent State in a dispute, though it may increase the likelihood of the national State of the alien initiating peaceful action against it on behalf of the alien. It is also to be noted that the development, as conceived, does not create an absolute obligation for national States to protect their nationals. It merely controls the exercise of the national State's discretion to protect its national.
These developments will also help to shift focus from the national State to the alien as concerns the persons or entity in whom the rights violated are vested, although the national State's rights, both primary and remedial, exist. This in turn would be in line with the modern developments, recognizing the individual as the owner of human rights in international law—indeed, as flowing from a ius cogens. 58
Notes:
(1) The Law of Nations or the Principles of Natural Law (1758), Book II, Section 71, in Fenwick (trans), Classics of International Law (1916) 136.
(2) Ibid 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) This theory was supported by GF Martens, for instance, in the early nineteenth century in 1 Précis du droit des gens moderne de l'Europe (1831) 224 ff. In the latter half of the nineteenth century and in the early twentieth century, writers such as Pradière-Fodéré, Calvo, Tcharnoff, Triepel, Moore, Anzilotti, Hallek, Phillimore, Wheaton, Arias, and Oppenheim threw in their support for this view. Later, Fauchille, Holland, Borchard, Décencière-Ferrandière, Eagleton, Dunn, Freeman, Ralston, Brierly, and García Amador, for example, made the same assumption in dealing with diplomatic protection.
(4) Traité de droit international public (1922), Part I, 884 and 922 ff.
(5) International Law (1905) 375 ff.
(6) Lectures on International Law (1933) 165 ff.
(7) Borchard, The Diplomatic Protection of Citizens Abroad (11915) 29. The writers cited by Borchard include Grotius and Vattel.
(8) Ibid. 356.
(9) 1970 ICJ Reports 44. The UK Court of Appeal, citing the Barcelona Traction Co Case, has acknowledged that international law did not impose a duty upon a State to exercise diplomatic protection in respect of ‘a citizen who is suffering or threatened with an injury in a foreign State’: the Abbasi Case [2002], 42 ILM (2003) 375.
(10) Dugard's report provides very useful material on the subject of this chapter. I have relied on it extensively here for the source material.Dugard, ‘First Report on Diplomatic Protection’, UN Doc A/CN.4/506, 28 ff. Dugard's report provides very useful material on the subject of this chapter. I have relied on it extensively here for the source material.
(11) Greig, International Law (1976) 523; Geck, ‘Diplomatic Protection’, 1 EPIL (1992) 1059–60;Jennings and Watts (eds), 1 Oppenheim's International Law (1992) 427; and references therein.
(12) Theory and Reality in Public International Law (1957) 275. See also Orrego Vicuna, ‘The Changing Law of Nationality of Claims’ in ILA, Report of the Sixth-ninth Conference (2000) 646.
(13) Article 10, GA Rs 40/144, Annex.
(14) Article 23, 30 ILM (1991) 1517.
(15) ‘Introduction’ in Lauterpacht and Collier (eds), Individual Rights and the State in Foreign Affairs (1977) 10; Warbrick, ‘Protection of Nationals Abroad: Current Legal Problems’, 37 ICLQ (1988) 1004.
(16) Sepulveda (Mexico) A/C.6/53/SR 16; de Aguiar Patriota (Brazil), ibid; Benitez Saenz (Uruguay),ibid; Reza (Indonesia), A/C.6/53/SR 15; O'Hara (Malaysia), ibid; Gray (Australia), A/C.6/52/SR 23; Longva (Norway), A/C.6/53/SR 14; Berman (United Kingdom), ibid; Orrego-Vicuña (Chile), ibid; Fomba (Mali), arguing, however, that the development of human rights should be taken into account A/C.6/53/SR 13; Caflisch (Observer for Switzerland), ibid; Tomka (Slovakia), A/C.6/53/SR 22; Shodeinde (Nigeria), A/C.6/53/SR 17; al-Baharna (Bahrain), A/C.6/53/SR 21.
(17) Baker (Israel), A/C.6/53/SR 15. On the first part of the argument, see also Abraham (France), A/C.6/SR 14.
(18) Cede (Austria), A/C.6/53/SR 15.
(19) Gray (Australia), A/C.6/52/SR 23.
(20) Giralda (Spain), A/C.6/53/SR 18.
(21) 1992 Constitution of Spain, Article 42.
(22) 1949 Hungarian Constitution with amendments up to 1997, Article 69.
(23) See the views of Lee Consular Law and Practice (1991) 124 ff.
(24) Hess-Entscheidung, 7 July 1975, 90 ILR (1992) 387 (Germany); Ostverträge, 16 December 1980, 78 ILR (1988) 177 (Germany). See Klein, ‘Anspruch auf diplomatischen Schutz?’ in Ress and Stein (eds), Der diplomatische Schutz im Völker-und Europarecht: Aktuelle Probleme und Entwicklungtendenzen (1996) 125 and related discussion.
(25) Geck (note 11 above) 1052.
(26) Blum, ‘Israel’, in Lauterpacht and Collier (eds) (note 15 above) 314, citing Hakim v Minister of Interior (1952), 6 Piskei Din 642.
(27) Ibid, referring to Attorney General v Steiner (1954), 9 Psakim Mehoziim 489.
(28) This has been established in Heirs of Oswald v Swiss Government (1926), Arrêts de Tribunal fédéral 52 II 235 and Gschwind v Swiss Government (1932), Arrêts de Tribunal fédéral 58 II 463, Schoenemann v Swiss Government (1955), Arrêts de Tribunal fédéral 81 I 159, cited by Caflisch, ‘Switzerland’, in Lauterpacht and Collier (eds) (note 15 above) 504 ff.
(29) Caflisch, ibid 506 ff.
(30) Mutasa v Attorney-General [1976], 3 All ER 257, 261–2; 78 ILR (1988) 490; R v Secretary of State for Foreign and Commonwealth Affairs: ex p Butt, unreported judgment of the Court of Appeal of 9 July 1999. See also the response of the UK to the ILC, July 1999, para 3. These last two sources are cited by Dugard (note 10 above) 31 note 150.
(31) See Warbrick (note 15 above) 1009.
(32) Dinh, Droit International Public (1999) 777. See also cases cited in Weil, ‘France’, in Lauterpacht and Collier (eds) (note 15 above) 278–9.
(33) 22 USC 1732 (Supp II 1990). See also Young, ‘Torture and Inhumane Punishment of United States Citizens in Saudi Arabia and the United States Government's Failure to Act’, 16 Hastings International and Comparative Law Quarterly (1993) 663; Hughes, ‘Hostages’ Rights: The Unhappy Legal Predicament of an American Held in Foreign Captivity’ 26 Columbia Journal of Law and Social Problems (1993) 555. In Redpath v Kissinger the Court held that the discretion of the president to enter into diplomatic negotiations to secure the release of an American national was not subject to judicial control: 415 F Supp 566 (WDTex 1976), aff'd, 545 F.2nd 167 (5th Cir).
(34) The Van Damme Case, NRC Handelsblad, 5 January 2000; HMHK v the Netherlands, 94 ILR (1994) 342; Commercial FSA v Council of Ministers, 88 ILR (1992) 691; cases cited in Seidl-Hohenveldern, ‘Austria’, in Lauterpacht and Collier (eds) (note 15 above) 31; Mandelier (1966), 81 Journal des tribunaux 721 (1969) Pasicrisie belge II 246, cited in M. Waelbroeck, ‘Belgium’, in Lauterpacht and Collier (eds) (note 15 above) 59.
(35) Dugard, (note 10 above) 32. In fact the evidence does not clearly point in the direction noted by Dugard. There is insufficient evidence to postulate a change in the customary law imposing no duty on a national State to protect.
(36) Dugard, ibid 22.
(37) Dugard, ibid 27.
(38) See Report of the ILC to the GA, 2004 17 ff.
(39) The commentary cites here the Interhandel Case, 1959 ICJ Reports 27, to support this.
(40) Report of the ILC to the GA, 2004 18.
(41) Ibid. 18 ff.
(42) (1924), PCIJ Series A No. 2, 12.
(43) 1970 ICJ Reports 44.
(44) Report of the ILC, 2004 28.
(45) Report of the ILC, 2006 29 ff.
(46) Ibid 94.
(47) Ibid 94–7.
(48) A/Res/60/I, paras 119–20, 138–40.
(49) Barcelona Traction Co. Case, 44.
(50) R. (Abassi and Juma) v Secretary of State for the Foreign and Commonwealth Office (2002), 123 ILR 599 (UK); Kaunda and Others v President of the Republic of South Africa (2004), 44 ILM 193 (South Africa).
(51) Dugard, ‘First Report on Diplomatic Protection’, note 10 at 30.
(52) The Rudolf Hess Case (1980), 90 ILR 392–296 (FRG); R. (Abassi and Juma) v Secretary of State for Foreign and Commonwealth Office (2002), 123 ILR, 599 (UK, England). See, generally, Vermeer-Künzli, ‘Restricting Discretion: Judicial Review of Diplomatic Protection’ 75 Nordic Journal of International Law (2006) 93.
(53) (2004), 44 ILM 186 para 69 (South Africa).
(54) Chorzow Factory Case (Merits), PCIJ Series A, No. 17, 28; separate opinion of Judge Morelli in Barcelona Traction Case, 1970 ICJ Reports 223.
(55) Bollecker-Stern, Le Préjudice dans la Théorie de la Responsabilité Internatiionale (1973) 98;Dubois, ‘La distinction entre le droit de l'Etat réclamant et le droit au ressortissant dans la protection diplomatique’ Revue Critique de Droit International Privé (1978) 615, 624.
(56) Report of the ILC, 2006 94–7. The original footnote numbers have been changed but in content the footnotes (present 48–55) have been retained as in the ILC report, with references organized, conformed and corrected.
(57) Orrego Vicuña suggested that the discretion exercised by a government in refusing to espouse a claim on behalf of the individual should be subject to judicial review in the context of the due process: ‘The Changing Law of Nationality of Claims’ in ILA, Report of the Sixty-ninth Conference (2000) 646. The ILA Resolution 5/2006 explains this and states:The discretion exercised by a government in refusing to expouse a claim on behalf of the individual should be subject to judicial review in the context of due process and the prevention of arbitrariness, subject to constitutional requirements of the state of nationality.2.1 The obligation of the government in undertaking such a review is not necessarily to enforce the taking of diplomatic representations but to ensure that the government of nationality considers the position of the particular individual and the extent to which such action might be taken.2.2 Judicial review may consider the question of eventual compensation of the individual by the state refusing to espouse the claim in the light of constitutional or administrative rights. (See <www.ila-hq.com>Both these sources stop short of ascribing a duty to protect a national to the national State. What is referred to is a duty to consider seriously and in good faith the protection of the individual. The resolution includes the exercise of judicial review over a decision not to protect.
(58) Orrego Vicuña suggested, as better reflecting contemporary realities and trends, thatThe right of the individual affected by a wrong should be asserted and enforced by means of diplomatic protection as the prevalent interest. A parallel right of the claimant State can also be asserted and enforced in this context but it should not be substituted for the individual's own right. (note 55) 646. Emphasis added.The ILA in its Resolution No. 5/2006 adopted this position (para 1 of the section on Nationality of Claims (<www.ila-ila.com>:The ILA resolution and Orrego Vicuña thus recognize that, when international law is violated in respect of an alien, the rights infringed are both the alien's and his national State's. This is a new development which is recommended. However, it is also recognized that in customary international law the alien must seek to enforce his right remedially through his national State. It must also be acknowledged, then, that the alien may have direct access to an international tribunal to enforce his rights under a convention or treaty which his national State is a party.
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