IL Facts: Diplomatic Protection

What is Diplomatic Protection?

Diplomatic protection is not to be confused with diplomatic immunity which is that thing where if you enjoy diplomatic status you aren’t subject to civil or criminal court proceedings or charges, like that plot twist in that drama you watched. 
Diplomatic protection is the protection of civilian individuals by diplomatic means. It is the body of international law which allows one state to legally pursue another (read: sue) for a violation of the rights of one of its nationals (someone who holds its passport) or the rights of anyone where it is party to a treaty universally protecting those rights i.e. the right of victims to redress for crimes of genocide. The current law is now codified in the International Law Commission’s Draft Articles on Diplomatic Protection (2006). These Articles are often referred to as embodying the “Du Garde Approach” after one of the main Commission drafters of the articles. This approach, controversially and progressively, deliberately maximised the position of individuals in cases of diplomatic protection, over and above the position of states. This is unusual as International Law is based wholly on the consent of states to be bound. 

Why does my state care if another state violates my rights?

Well, because in International Law there is a strong history of states using the protection of their nationals as justification for actions, meaning that this is a pretty well accepted argument. This comes from the idea that states exist in order to represent and for the good of those who are defined as their nationals. Isn’t that why you get annoyed when you think your government isn’t doing what you want? So, because your state has an inherent right (and the Canadians and R2P think duty) to protect you under international law, any injury to you is an injury to the state; and when states’ rights are injured, they sue. The doctrine of injury to a national equating to injury to the state is held up by Greece vs. UK 1924 in the (ironically named) Permanent Court of International Justice. This case, also known as the Mavrommatis Palestine Concessions Case, was the basis for Article 1 of the ILC Draft Articles on Diplomatic Protection. 

For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State … of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.

The commission used its commentary on the articles to state that Art. 1 is deliberately ambiguous.

How can my state pursue a claim on diplomatic protection grounds?

a.k.a what’s the cause of action?

Well, there has to be international law supporting the right you had violated. That can mean a whole range of things from the rights given by the genocide convention, to the rights given by the International Covenant on Civil and Political Rights. However, if the violated right comes from a multilateral treaty or customary international law then any state which is a party may sue for its enforcement. This is called a right erga omnes partes and was primarily solidified by Belgium vs. Senegal 2012 and General Comment Number 31 of the Human Rights Committee. 
There is debate over the specific cause of action for diplomatic protection and it is split predominantly into two camps: 
Denial of Justice
This school of thought proposes that the cause of action is the denial of justice or due course which has caused the case to rise to an international claim, rather than be settled in national jurisdiction. Under this school, the exhaustion of local remedies requirement (which will be discussed below) is an element of the standing. 
Original Injury
This school of thought proposes that it is the original injury, i.e. the violation of the original right, which is the cause for standing. Here, the exhaustion of local remedies is a prerequisite for jurisdiction, not a cause in itself. 

Surely it can’t be that easy. What’s the catch?

Well, there are a couple of extra things to consider:

Dual Nationality
First of all, pray your two nationalities aren’t both signatories to the Hague Convention on Nationalities 1930. If they are, they cannot take a diplomatic protection claim against each other. 
Dual Nationality is addressed in Arts. 6 and 7 of the ILC’s work. If you have dual nationality, your dominant nationality can claim against your alternate nationality, but not vice versa. Your dominant nationality is determined by a common sense analysis of which state you have a stronger link with. 
However, dual nationals who are the subjects of claims against a third state of which they are not a national do not have to be under the claim of their dominant nationality. There does need to be an effective or genuine link between the individual and the claiming state though (Iran-USA Claim, Iran US Tribunal). 
The last tricky rule for nationality comes from the Nottebohm Case. This case is exremely controversial and is widely accepted to have been wrongly decided. Thus, the rule is now in its most restrictive form: Where a respondent state has an extremely strong link with the individual, and the claiming state of nationality’s link is non-existent, the claim will not stand.

Exhaustion of Local Remedies
Article 14 of the Draft articles articulates the requirement to exhaust local remedies. Exceptions to this rule are listed under Art. 15, and are mostly common sense. This rule was customary law prior to 2006 and confirmed in Congo vs. Uganda 2005. 
Executive Actions

This rule comes from R (Abbasi) vs S.S Foreign & Commonwealth Affairs (2002) and is widely recognised, but here strictly only applies to UK law. The rule is essentially that the executive actions of foreign states, or executive actions of the UK government which are related to international law, are non-justiciable. UK courts do not have the competence to rule these actions illegal or internationally wrongful.

Calvo Clauses
Calvo Clauses come from the Calvo Doctrine, which is an obsolete position in international law which propose that the absolute nature of state sovereignty prevents diplomatic protection from being valid. A Calvo clause is a clause inserted into a contract, usually between a state and foreign business or individual, which obliges the subject to waive any and all rights to diplomatic protection or to allow any issue to proceed to the level of an international claim. Calvo clauses are legally problematic as under international law the right to pursue diplomatic protection claims belongs to the standing claimant state, not the contract party in question. Can individuals waive a right which does not legally belong to them? Hmmm…
Calvo clauses can however trump waivers of the exhaustion of local remedy requirement if one exists. 
Lastly, the North American Dredging Claim (USA vs. Mexico 1926) included the judgement that a Calvo clause cannot cover a breach of international law, only a breach of contract. 

So, that’s it?

Yeah, that’s pretty much all the basics. Hope it’s been informative or helpful. If you’re looking for a great resource, check out A. F. Amerasinghe’s book Diplomatic Protection which is available online via Oxford University Press and your institution login. 


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