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This chapter presents some concluding observations. Topics discussed include the continued survival of diplomatic protection as an institution; the factors that intervened in progressive development of the international law of the rights of the alien; and the overlap between the law of State responsibility in general and the law of diplomatic protection. It argues that that diplomatic protection as a remedial process must continue to exist and be used. The proper way of dealing with the problem of the perceived absence of adequate protection for the individual, in this case the alien, is to replace diplomatic protection as a remedial means of asserting rights with an appropriate international forum or appropriate international fora to which aliens would have access.
Keywords: diplomatic protection, international law, state, aliens
The law relating to the diplomatic protection of nationals abroad may be said to have crystallized in the nineteenth century with the advent perhaps of the industrial revolution in Europe and the assertion of their independence by the European colonies in Latin America. However, it was not till well into the twentieth century that the development of the law could be said to have reached its maturity. This progressive development and application of the law in the latter part of the twentieth century was spurred on, promoted, and accelerated by the ease and speed of travel for individuals between States and the formal approval and imprimatur given to the need for foreign investments in order to facilitate the economic development of the former colonies whose independence had been recognized, particularly after the Second World War. It may be observed that just as the newly won independence of States and their active assertion of this independence in their international relations from the early nineteenth century gave initial impetus to the application and development of and special interest in the law of diplomatic protection of nationals (and their property) abroad, the securing of independence of the European colonies particularly in the post-Second World War era of the twentieth century was the catalyst for the maturing of that law and for interest in making the law clearer, its codification, and its application to a variety of new situations.
That having been said, it must be conceded that the roots of the law, beginning with the Vattelian concept of injury to the State in the person of its nationals, dies hard. This is so, although there had been an attempt on the part of the more developed States and some committed international lawyers to push to the forefront the realization that it is really and unqualifiedly the national abroad, whether in his person or his property, that requires protection and is being protected. Thus, diplomatic protection as an institution still survives, particularly because of the theory that it is the State that is the owner of rights in international law and not the individual. The theory has not been abandoned, even though there have been important developments in the last half century both in conventional and in the common international law (customary law and general principles of law) which have led to the recognition of substantive human rights law. As a result individuals have come to be recognized as the subjects of international law in whom rights have been vested. Thus, on the substantive side it may not be possible (p. 343) any more to deny that the alien has rights and that the international minimum standard for the treatment of aliens has been fused with the basic human rights of individuals.
What has intervened in the progressive development of the international law of the rights of the alien individual in relation both to his person and his property, then, is only an absence of a general instituted and established international procedure, outside of the functioning human rights systems, for him to assert these rights before international fora without the espousal of his cause by his national State or, at any rate, a State. Hence, the need to develop and systematize the prevailing institution of diplomatic protection. Efforts generally to afford individuals as such procedural and remedial rights before international fora have not completely borne fruit, though there is evidence, supplied especially by the human rights arrangements which exist, that the international community may be moving towards such a conclusion. In the twenty-first century, then, it is still necessary to work with the institution of diplomatic protection as a means of affording protection to a certain class of individuals and their property.
It must be emphasized, however, that the law of diplomatic protection, as it has been developed, is not based on a logical conceptual system flowing from the idea that it is a State that has been injured and that it is such State that must assert its rights to a remedy. There have been many areas in which the reality of injury to the individual shows up, as has been seen in the analysis in some of the earlier chapters and particularly from the discussion of the real underpinnings of the law in Chapter 7. Thus, an approach must always be taken which does not attempt to rationalize the law or to give it a logical structure but rather which makes it possible to resolve the conflict of interests underlying the law in the most suitable manner, given that emphasizing one or the other of those interests in a particular situation would lead to different results. It is with these considerations in mind that the exposé and the discussion in the preceding chapters have been undertaken.
It must also be observed that particularly in the areas of remedies for the violation of the rules relating to the treatment of aliens via the route of diplomatic protection and the objective attribution of acts to the respondent State, there is an overlap between the law of State responsibility in general and the law of diplomatic protection. Thus, as far as the work of the ILC goes, these areas in particular which were examined by it in connection with the general law of State responsibility relate also to the law of diplomatic protection which has been separately and particularly studied by it. Indeed, it would not be wrong to maintain that at a minimum the totality of the law of State responsibility, as it has now been stated by the ILC, is relevant and applicable to the protection of nationals abroad via diplomatic protection.
The discussion in this book and the work of the ILC on the two subjects show that in the area of the peaceful and diplomatic protection of nationals abroad much of the lex lata still remains justified and there is little room for (p. 344) development or change of the law. A word of caution may, however, be spoken. The temptation to over-emphasize the interests of the individual and to ignore those of the respondent State, on the basis that it is the alien (or the national abroad) that requires as much protection as he can get or protection at any cost, is to be avoided.
The proper manner in which fundamental changes may be made is by providing, obviously by global agreement, an international forum or international fora for nationals abroad to pursue in person their remedies against States violating the law of alien treatment, just as now there are some multilateral human rights conventions which afford anyone, nationals and non-nationals alike, international fora for asserting their human rights. But until such time as this status is achieved in the international system, nationals abroad may have to rely on diplomatic protection by their national States in order to assert their remedial rights. Furthermore, sometimes that a State takes up the cause of an alien individual against another State gives that individual complainant a better chance of success than were he to contest the case by himself.
The conclusion, then, is that diplomatic protection as a remedial process must continue to exist and be used. This, however, is not a reason for eliminating from consideration in the formulation of the law of diplomatic protection the interests of the respondent wrongdoing State—which have been respected in the development hitherto of the law—in order to give the national abroad more protection. Nor is it a reason for emphasizing or giving absolute priority to the interests of the national abroad (alien) as against the interests of the respondent State. To do either would be to disregard entirely the fundamentals of the law as it has developed and to change its very nature. Too much tinkering with the institution of diplomatic protection, in order to protect the interests of the individual, would change its nature. As said earlier, the proper way of dealing with the problem of the perceived absence of adequate protection for the individual, in this case the alien, is to replace diplomatic protection as a remedial means of asserting rights with an appropriate international forum or appropriate international fora to which aliens would have access. To make changes in the law of diplomatic protection with the result that its character is erased would be to get rid of the institution. This may be desirable but should be done in the appropriate manner. There may be a justification, in this era of developed human rights law, to do just that but that is the way to make the change.
It is with these considerations in mind that it has been suggested, for example, that the better view of the law supported by authority now is that an alien's national State may not normally espouse a claim against a State of which the alien is also a national, regardless of whether he is more closely connected with the State exercising diplomatic protection. In short, a claim in respect of an injured person cannot be filed against a national State of that person by another State of which that person is also a national unless there are exceptional circumstances. The more possession of the nationality of the latter state is not adequate by itself (p. 345) to found such an action. This is giving the respondent State's interest primacy but the development of the law has more or less clearly made this assumption. It does not seem to be an answer that the individual would, perhaps, then have no recourse to a remedy. It is his keeping a particular nationality that has led to this result and he must take the consequences. Why penalize the respondent national State in these circumstances?
On the other hand, such suggestions which have been made to have the national State of the injured individual give proper consideration to the possibility of exercising diplomatic protection and consult his interests before rejecting a claim to protection, and pay him appropriate compensation where the national State secures a monetary award against the wrongdoing State, may be welcome and accepted. Here the interests affected are both on the side of entities involved in making the claim. The lifting of the veil, so to speak, in order to give the individual the protection which he may be regarded as deserving is acceptable. It is not a case of a true conflict of interests. Such suggestions are to be entertained, even though there is a problem connected with the question to whom the obligations involved are owed at an international level, so that they can be enforced if necessary.
The rule requiring the exhaustion of local remedies before a claim may be espoused by an alien's national State has also been interpreted and developed in particular by reducing the element of hardship to the individual while at the same time recognizing that the purpose of the rule is to give the respondent State a fair opportunity to redress grievances. The establishment of areas or situations in which the rule is inapplicable demonstrates that the law does take into account the interests of the alien, though the core rule itself is based on recognizing the interests of the respondent State.
The aggregate of rules built around the institution of diplomatic protection as such which have been considered in this work makes sense and justifies the continued reliance on the institution of diplomatic protection as a means of protecting nationals abroad. At the same time there are more rules connected with State responsibility in general which apply equally in the area of the protection of aliens. Such matters as lawful excuses have not been included in the present survey because they, among others, are to be found in the general law of State responsibility. Among other things the rules pertaining to those matters have been considered by the ILC in its 2001 Articles on State Responsibility and in these areas much is undisputed lex lata, as those Articles show.
Special note must be taken of the impact or possible impact of human rights conventional law and investment treaties and law, which has been discussed in Chapters 16 and 17 respectively. Undoubtedly, human rights law can have a beneficial and exemplary effect on the development and application of the local remedies rule, especially in connection with limitations on its application that is pace the latest approach of the ILC in its 2006 Draft Articles. The example of human rights law should work in favour of avoiding undue hardship being placed on the alien.
(p. 346) As for investment treaties and law, while there is no rigid and unqualified disclaimer or rejection of the local remedies rule, there are signs that choices have been made available with regard to the exhaustion of local remedies. Arbitration, which becomes international because it is provided for in a treaty between States, may replace as an alternative the resort to and exhaustion of local remedies. This is so whether the arbitration is pursuant to the ICSID Convention or directly under a bilateral investment treaty. It remains to be seen whether in the future the model with regard to arbitration provided by investment treaties will be adopted in treaties of friendship and the like in the context of protecting nationals abroad.
It is hoped that what has been presented in this book as the law relating to diplomatic protection in the areas examined constitutes a vibrant set of rules which to a large extent protect nationals abroad, while not prejudicing respondent States. The landscape presented of the law, as it has been, and may be, developed, is an adequate reflection of the delicate balancing of interests which has taken place in the past and yet takes place in the modern era. The discussion in the preceding chapters has been geared not only to elucidating and stating the law but also to improving it.
Finally, an important point must be made. It is clear, as the recent judgment of the ICJ dealing with the preliminary objections in the Diallo Case 1 shows, that the institution of diplomatic protection, as it has developed, is alive and well. The ICJ held that some objections to the admissibility of the case could not be upheld resulting in its having jurisdiction to decide the merits in regard to some of the claims made by the applicant State. Other objections based on the requirement of nationality for incorporated bodies were upheld, thus preventing claims brought by substitution of a shareholder for the incorporated bodies from being examined on the merits. What is important, inter alia, is that the court proceeded on the understanding that diplomatic protection was a given, while the mechanics of its application as relevant to the case had necessarily to be determined and put in place. The court does not, on the one hand, in the cases like the Diallo Case which relate to diplomatic protection, question the usefulness or viability of the institution. On the other, it does try to refine and fine tune the rules relating to diplomatic protection which it applies.
As a parting shot, it is asserted that as long as the alien as an individual, whether a natural or judicial person, does not, as a given and automatically, widely have standing before an international tribunal to make claims against a wrongdoing State, on the basis that he, as a subject of international law, has been injured (as a result of a violation of international law in regard to him), diplomatic protection as an institution must remain the only recourse available. However, that it may, as a result of its history, have limitations and an imperfect structure as not providing the most desirable protection to aliens, may at the same time have to be acknowledged. Also some development in the right direction may now be provided by the 2006 draft Articles of the ILC on Diplomatic Protection.
Notes:
(1) Judgement of May 24, 2007: 2007 ICJ Reports, See <www.icj-cij.org>. The judgement on the preliminary objections dealt almost entirely with objections related to diplomatic protection.
[1] Out of fraud no action arises
[2] Law does not arise from injustice
[3] No man can take advantage of his own wrong
[4] No one can improve his connition by his own misdeed.
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