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Abstract and Keywords

The international wrong committed by the responsible or host State generates an international responsibility which causes the legal relationship between it and the national State of the alien to change, so that the latter could require the responsible or host State to take certain remedial measures. These remedial measures stem from State responsibility and are reflected in the general law of State responsibility. This chapter discusses general principles applicable to State responsibility that are relevant to diplomatic protection that result from the violation of international rules relating to the treatment of aliens.

Keywords: international law, diplomatic protection, international wrong, State responsibility, reparation, compensation

As a consequence of a State's violation of international law in respect of an alien, the alien's national State may take a course of action in response. This course of action may involve asserting rights by way of remedy which do not directly impose the obligation to act on the part of the responsible State. Thus, for example, if the violation of international law is a material breach of treaty which specifies obligations of the host State in respect of the alien, the national State of the alien may as a legal consequence terminate or suspend the treaty in whole or in part. ¹ As another example of action by the national State may be mentioned the exercise of the right of reprisal or retaliation short of the use of force. Acts of reprisal or retaliation (countermeasures) could be in other circumstances a violation of the host State's rights but, when they result upon a wrong done by the host State, it is a remedial action permitted by the law. The law governing such countermeasures is based on the same principles as govern countermeasures in the general law of State responsibility. Reference is made to the law relating to such countermeasures later in this chapter.

Such courses of action aside, the international wrong committed by the responsible or host State generates an international responsibility which causes the legal relationship between it and the national State of the alien to change, so that the latter could require the responsible or host State to take certain remedial measures. These remedial measures stem from State responsibility and are reflected in the general law of State responsibility. It is to be noted in this context that the ILC does not deal with remedial measures as such in its Articles on Diplomatic Protection but has left these as to be found in its Draft Articles on State Responsibility, even though much of the material considered relevant to remedies in the law of State responsibility in general is to be found in cases of diplomatic protection. However, there are some special matters of interest to diplomatic protection of aliens which will be discussed later in this Chapter. Suffice it here to deal generally with the remedies available to the national State of the alien vis-à-vis the host or responsible State. Certain general principles applicable to State responsibility in general are relevant to diplomatic protection as a result of the violation of international rules relating to the treatment of aliens.