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Full text of "Protecting Powers: International Law
"
See other formats
Netherlands International Law Review (2018) 65:463-480
https://doi.org/10.1007/s40802-018-0119-4
ARTICLE
@® CrossMark
Nationality and Diplomatic Protection
Eileen Denza'
Published online: 30 November 2018
© The Author(s) 2018
Abstract
Nationality came during the nineteenth century to be regarded as conferring an enti-
tlement to diplomatic protection by the national government. Powerful States used
the rules against weaker ones to enforce rights of their nationals who had failed to
secure justice through local remedies. Changes in the international order had the
effect of diminishing the effectiveness of this practice. But the reduction in formal
diplomatic protection for individuals and for companies has been matched by growth
in compensatory mechanisms—wider human rights protection, government to gov-
ernment claims settlements and investment protection agreements.
Keywords Protection of nationals - Effect of grant of nationality - UN staff -
Corporate nationality - Two meanings of “diplomatic protection’ - Legal
entitlement - Dual nationals - International claims agreements - Investment
protection agreements - Human rights - EU citizens’ entitlement - ILC draft articles
1 Introduction
On Easter Day, 1847, in the course of anti-Semitic riots in Athens, the house of the
Jewish merchant Don Pacifico was burned down while the police stood passively
by. Don Pacifico was a British subject by virtue of his birth in Gibraltar, although
he was Spanish by descent and had served as a consul of Portugal in Morocco and
in Greece. His attempts to secure compensation from the Greek Government proved
fruitless until in 1850 the British Foreign Secretary, Lord Palmerston, in support
of his claim sent a naval squadron to blockade Greece. In consequence, a commis-
sion was set up and £4000 awarded to Britain by way of compensation. There were
protests from France and Russia who at the time were with Britain joint protect-
ing powers of Greece, and Lord Palmerston’s intervention was censured by the Brit-
ish House of Lords. During a later debate in the house of Commons lasting several
days, Palmerston defended his actions in a 5 hour speech, saying that the issue was
whether
Eileen Denza
' London, UK
va Springer Q ASSER PRESS
464 E. Denza
the principles on which the foreign policy of Her Majesty’s Government has
been conducted, and the sense of duty which has led us to think ourselves
bound to afford protection to our fellow subjects abroad, are proper and fit-
ting guides for those who are charged with the Government of England; and
whether, as the Roman, in days of old, held himself free from indignity, when
he could say Civis Romanus sum; so also a British subject, in whatever land he
may be, shall feel confident that the watchful eye and the strong arm of Eng-
land, will protect him against injustice and wrong.
Palmerston carried the day in the House of Commons and with the English public
(in spite of mockery and criticism from William Gladstone), and his words may be
regarded as entrenching in British consciousness the link between nationality and
moral (though never legal) entitlement to diplomatic protection.!
2 The Link Established in Customary International Law
Throughout the nineteenth and the first half of the twentieth century the link between
nationality and diplomatic protection remained central. In 1939 the Permanent Court
of International Justice restated the classical rule of diplomatic protection whereby
a State is in reality asserting its own right, the right to ensure in the person of
its nationals respect for the rules of international law. This right is necessarily
limited to intervention on behalf of its own nationals because, in the absence
of a special agreement, it is the bond of nationality between the State and the
individual which alone confers upon the State the right of diplomatic protec-
tion, and it is a part of the function of diplomatic protection that the right to
take up a claim and to ensure respect for the rules of international law must
be envisaged. Where the injury was done to the national of some other State,
no claim to which such injury may give rise falls within the scope of the dip-
lomatic protection which a State is entitled to afford, nor can it give rise to a
claim which that State is entitled to espouse.”
Next to the right of abode, entitlement to diplomatic protection was the most
important benefit of nationality, and a sovereign State could determine under its
domestic law which individuals and corporate enterprises held its nationality. In
1955, however, the International Court of Justice emphasized in the Nottebohm
case that the fact that international law left it to sovereign States to determine rules
for the grant of its nationality did not imply that the status so granted had effect as
regards other States ‘unless it has acted in conformity with the general aim of mak-
ing the legal bond of nationality accord with the individual’s genuine connection
with the State which assumes the defence of its citizens by means of protection as
' Don Pacifico Affairs, Britannica Online Encyclopaedia, Hansard HC Debates 25 June 1850, Jenkins
(1995) pp. 117-120.
> Panevezys—Saldutiskis Railway case, PCIJ (1939) Series A/B No. 76, para. 65; Jennings and Watts
(2008), pp. 511-515.
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Nationality and Diplomatic Protection 465
against other States...’? A State was entitled to exercise diplomatic protection only
if its grant of nationality amounted to a translation into juridical terms of the indi-
vidual’s connection with that State.
In the Reparation for Injuries Suffered in the Service of the United Nations case,
the International Court of Justice in 1949 established not only that the UN possessed
the capacity to bring an international claim against a State responsible for injury to
the UN or to its officers and agents, but that the bringing of such a claim by the UN
could be reconciled with the rights of the States of which the victims were nationals.
The UN was entitled to claim not by virtue of any bond of nationality but because
of direct injury to itself. The Court stressed that this did not involve extending the
concept of nationality, saying:
4
It is not possible, by a strained use of the concept of allegiance, to assimi-
late the legal bond which exists under Article 100 of the Charter, between the
Organisation on the one hand, and the Secretary-General and the staff on the
other, to the bond of nationality existing between a State and its nationals.
The national States of the injured agents might not feel justified or disposed to
bring international claims, and so to ensure the independent performance of UN
missions, the Organisation must be able to provide these agents with adequate pro-
tection. Competition between the right of the victim’s national State and the UN
was a problem which could easily be resolved in individual cases or through emerg-
ing practice, so that the defendant State would not have to pay reparation twice for
the same damage. International tribunals were already familiar with the problem of
claims in which two or more national States had an interest, and were well able to
resolve any difficulties.
3 Nationality of Corporate Bodies
As with individuals, the nationality of a State entitles companies to important
operating benefits such as the right to own land, to licences and concessions and
to preferential treatment regarding taxation. A foreign enterprise may sometimes be
permitted to carry on business only if it establishes and incorporates a subsidiary—
having local nationality but in many cases wholly owned by the foreign enterprise
or having most of its shareholders nationals of the home State. Expectation of diplo-
matic protection is among the factors influencing enterprises seeking to do business
abroad in their choice of method, as is the possibility of claiming benefits from any
investment treaty—though these will not usually be the principal concerns. Interna-
tional law permits a State to choose in the context of diplomatic protection which
corporate bodies it regards as its nationals, and there is considerable variation in the
criteria adopted by individual States.°
3 Nottebohm case, Liechtenstein v. Guatemala, ICJ Reports 1955, p. 4.
+ ICJ Reports 1949, p. 174, and see analysis in Amerasinghe (2008), pp. 47-53.
5 Okowa (2018), pp. 462-465.
® Springer © asser press
466 E. Denza
The classical rules—following the most frequently employed test of corporate
nationality—were confirmed by the International Court of Justice in the Barcelona
Traction case® in 1970 when it concluded that the nationality of a company must
be determined by the laws of the State where it was incorporated or maintained its
registered office. Barcelona Traction was incorporated in Canada, but at the time
of seeking compensation for injury by Spain most of its shareholders were Belgian
nationals. The Court held that the injury was to the company and not to its share-
holders, so that Canada and not Belgium was the State entitled to exercise diplo-
matic protection by bringing an international claim. Only if a company had ceased
to exist could the State exercise diplomatic protection on behalf of shareholders, or
if the alleged injury affected shareholders directly—for example a prohibition on
payment of dividends. Allowing a State to exercise diplomatic protection on behalf
of shareholding nationals could cause confusion as shares were so easily transferred.
The majority on the Court did not accept that the requirement of a ‘genuine link’
with the State of incorporation applied to companies. The principles set out in the
Barcelona Traction case were broadly confirmed by the International Court of Jus-
tice in the Diallo’ cases in 2007 and 2010.
4 The Meaning of ‘Diplomatic Protection’
In what is written above, the expression ‘diplomatic protection’ is used in its for-
mal sense, as defined by the International Law Commission in its draft articles as
meaning ‘the invocation by a State, through diplomatic action or other peaceful
means, of the responsibility of another State for an injury caused by an internation-
ally wrongful act to a natural or legal person that is a national of the former State
with a view to the implementation of such responsibility’. The expression ‘diplo-
matic protection’ however is also used informally to mean the informal assistance
given by diplomatic missions and consular posts to their nationals—and it is under-
standable that this causes confusion. The Vienna Conventions on Diplomatic and
on Consular Relations list among the basic functions of diplomatic missions and of
consular posts ‘protecting in the receiving State the interests of the sending State
and of its nationals’.? There are important distinctions between formal ‘diplomatic
protection’ —which is exercised by a State following exhaustion of local remedies by
one of its nationals—and informal ‘diplomatic protection’ which is exercised by dip-
lomatic agents or consular officers normally to assist their nationals to access and to
make use of local remedies. But in both cases the entitlement to protection depends
© Barcelona Traction, Light and Power Company Limited, Second Phase, 1CJ Reports 1955, p. 3, and see
Amerasinghe (2008), pp. 122-140.
7 Ahmadou Sadio Diallo (Republic of Guinea y. Democratic Republic of Congo), ICJ Reports 2007, p.
580, 2010, p. 636.
8 UN Doc. A/CN.4/L 684.
° Vienna Convention on Diplomatic Relations 1961, Art. 3; Vienna Convention on Consular Rela-
tions 1963, Art. 5. See Roberts (2017), 8.25 and chapter 9; Denza (2016), pp. 29-37; Lee and Quigley
(2008), chapter 8.
g) Springer Q ASSER PRESS
Nationality and Diplomatic Protection 467
on the nationality of the primary claimants. A State, or a diplomatic mission, which
tries to protect an individual or an enterprise which does not have its own nationality
must either find a legal basis going beyond the customary rules—a possibility which
will be explored in the sections below—or face the likelihood of challenge or rebuff
by the host State or the defendant State.
5 Absence of Legal Entitlement for Individuals and Enterprises
Whether the individual has any right to diplomatic protection from his State of
nationality depends almost entirely on national law. Under customary international
law the right belonged to the State and each State could choose not only the tim-
ing and extent of any action but whether it would take any action at all. Under the
domestic law of most States the individual or enterprise had no more than a legiti-
mate expectation that the State of nationality would take up a claim, and the timing
of any protest or formal presentation of a claim even when local remedies had been
exhausted would depend on domestic political pressure and on the state of relations
with the defendant State.'!° Even where national law on its face provides a right to
diplomatic or consular protection, the executive is given such discretion in the extent
or the method that the practical effect is no different from that available to nation-
als of States where it is expressly stated to be a matter of policy, discretion or at
most ‘legitimate expectation’. In the case of Abbasi v. Secretary of State for Foreign
and Commonwealth Affairs and Secretary of State for the Home Office,'! the Eng-
lish Court of Appeal confirmed that there was no enforceable right to protection
under UK law, but found that the discretion of the UK Government might be judi-
cially reviewed if it could be shown that it had been exercised irrationally or without
regard for legitimate expectation. The applicant in the case had been detained by US
authorities in Guantanamo Bay, and the Court expressed concern that he had found
himself in a legal black hole without access to objective review of the legality of his
detention. In Kaunda and others v. President of the Republic of South Africa and
others,'* the Constitutional Court of South Africa accepted that diplomatic protec-
tion was a constitutional entitlement, but that the method of implementing it was a
matter of executive discretion. According to the Court, ‘the citizen is entitled to have
his request considered and responded to appropriately’.!° So the theoretical consti-
tutional entitlement does not in practice place the injured individual in a stronger
position.
From the point of view of the individual or company seeking justice from a
State other than its own national State, diplomatic protection is a somewhat limited
'0 For a detailed account of practices in all 28 Member States of the European Union, including the
extent of any legal right to consular protection, see Consular and Diplomatic Protection: Legal Frame-
work in the EU Member States: Final Report of the CARE (Citizens Consular Assistance Regulation in
Europe) Project, 2010. For wider analysis of practice and principle, see Amerasinghe (2008), chapter 9.
' [2002] EWCA Civ 1598.
2 Case CCT 23/04, 2005 (4) SA 235 (CC).
‘3 Th para. 63.
® Springer © asser press
468 E. Denza
guarantee. Active pursuit of diplomatic protection by the State of nationality has
been described as subject to ‘the doctrine of the permanent unripeness of time’. Of
course the classical rules are still employed unobtrusively by States in a large num-
ber of cases which remain unrecorded because representations are successful. It is
regrettably the case that—as with much of diplomacy—only the high-profile cases
or those where routine protection fails to obtain justice attract public or academic
interest.
6 Dual Nationals
Overwhelmingly, the most important limitation on the right of a State to extend dip-
lomatic protection to its nationals—either informally or by presentation of a formal
claim—is that where a person has dual nationality, neither one of the two States may
extend protection against the other. The classic rule was codified in Article 4 of the
1930 Hague Convention on Certain Questions Relating to the Conflict of National-
ity Laws which stipulates that ‘A State may not afford diplomatic protection to one
of its nationals against another State whose nationality such person also possesses.’
Where the individual claimant also possesses the nationality of a third State, Article
5 of the Hague Convention allows for greater flexibility and regard is likely to be
paid to which of the two nationalities is the more effective. In the absence of an ele-
ment of abuse or ‘nationality shopping’, a defendant State is in practice unlikely to
reject protection efforts by either of the two States whose nationality the claimant
possesses. 4
Modern state practice shows very little softening of the rule that a dual national
is not entitled to any kind of diplomatic protection from either of his national States
while he is in the other. The UK Government warns all holders in the Notes printed
in the actual passport that
A British citizen who holds dual citizenship (also known as dual nationality)
cannot get diplomatic help from the British Government while they are in the
other country where they hold citizenship. A person who has dual national-
ity may be subject to the laws of the other country. It is your responsibility to
determine what responsibilities you may have with that other country.
The leaflet ‘Support for British Nationals Abroad: A Guide’—available online—
also makes clear that support cannot ordinarily be given to a dual national in the
other country whose nationality they hold.
The 1965 Convention for the Settlement of Investment Disputes which entitles
a national of a Contracting State directly to invoke the jurisdiction of the Centre
for the Settlement of Investment Disputes to determine a dispute with any other
‘4179 LNTS 89; International Law Association (2006), pp. 372-73; Jennings and Watts (2008), pp.
515-517. See also Amerasinghe (2008), pp. 106-113.
g) Springer Q ASSER PRESS
Nationality and Diplomatic Protection 469
Contracting State excludes claims where the claimant individual also holds the
nationality of the other Contracting State.'°
There have been a number of well-publicised victims of this rule in recent years—
particularly in Iran, where at least 30 dual nationals have been detained since 2015
without access to diplomatic or consular protection. Some of those so detained have
previously been strongly supportive of the authorities in Iran. In April 2018 Abbas
Edalat, a British—-Iranian Professor of computer science, was arrested and detained
without charge after travelling to Tehran to attend an academic workshop.'© Kayous
Seyed Emami, a dual Canadian—Iranian Professor of sociology in a Tehran Univer-
sity, was arrested in January 2018 and died a few days later (according to the Iranian
authorities as a result of suicide).!’ Dual UK-Iranian nationals also held without nor
mal access include a member of the staff of the British Council, Aras Amiri, a busi-
ness man running a research firm who had appeared on Iranian television, as well as
Nazanin Zaghari-Ratcliffe—detained at the end of a family visit and separated from
her baby daughter. She was sentenced to 5 years in jail in 2016 for ‘plotting to over-
throw the Iranian régime’, and new charges of ‘spreading propaganda’ were added
in 2018—although on that occasion she was permitted for the first time to telephone
the British Ambassador.'®
7 Changes in the Classic Rules
Since 1945 international law has in many respects shifted towards a much greater
emphasis on individual rights. The disadvantages of the rigidity of the rules on
nationality and diplomatic protection have been lessened by several developments
which have made reliance on these restrictive rules and indeed more generally on
diplomatic protection now of less importance—even though as explained above it
is still extensively practised. The three most important developments in this context
are, first, the increased practice of settling inter-governmental claims by means of
collective treaties leading to payment of a lump sum to the claimant government;
secondly, the increased reliance on investment protection agreements both bilateral
and multilateral; and thirdly, the growth in multilateral human rights treaties—in
particular those treaties which permit the individual or enterprise to access justice
directly from an international body. In all these three contexts the need for an injured
claimant to prove continuous nationality of a plaintiff State has been substantially
diminished. These three developments will be briefly described.
'S 4 ILM 524 (1965), Art. 25.
'© The Times, 26 April 2018.
'7 The Times, 12 February 2018.
'8 The Times, 3 May 2018, Hampstead and Highgate Express, 1 March 2018 and 24 May 2018.
® Springer © asser press
470 E. Denza
7.1 International Claims Agreements
In the years following 1945 a significant number of countries embracing social-
ist principles nationalised foreign-owned property. Expropriations with limited or
no compensation included the property of refugees from Communist governments
many of whom had acquired the nationality of their new home State, as well as that
of enterprises whose capitalist activities were no longer welcome. There were also
large numbers of claims resulting from persecution before or during the Second
World War or for reparation for war damage. The practice grew up of negotiating
compensation by means of large-scale negotiations in which the—mainly Western
European and like-minded governments—sought compensation for all individual
and corporate claimants whose claims they had registered and also for their own
claims. Although these negotiations usually began with detailed scrutiny of indi-
vidual claims—where the traditional rules regarding nationality were deployed—
the sheer weight and numbers of the claims after a while led to a deal known as a
lump-sum settlement. The claimant government extracted the largest sum it could
from the defendant government—but then had almost complete discretion as to how
this would be distributed. From the 1950s until the 1990s there were hundreds of
these claims settlement agreements. The governments which received compensation
usually relaxed the rules when making distributions—they might waive their own
claims, and they might allow claimants to share who could not satisfy the require-
ment of continuous nationality because they possessed the nationality of the claim-
ant State by virtue of naturalisation having fled their country of origin after seizure
of their property. They might permit shareholders in a company driven out of busi-
ness or wound up under compulsion from the defendant government to receive com-
pensation for their economic losses. Many of the international agreements did stipu-
late that only nationals of the claimant State might share in the resulting distribution,
but there is no evidence that States having paid compensation investigated in detail
how that compensation was actually later distributed by the recipient governments,
far less demanded adjustment to failure to comply with the terms of settlement.!”
The Anglo-Soviet Agreement of 1986, for example, which settled financial claims
dating back to the Russian revolution of 1917, provided that each Government ‘shall
be solely responsible for the settlement of claims and for any distribution to physical
and juridical persons of their respective States’ of the relevant assets remaining in
their respective territories. Distribution of Russian assets to UK registered claim-
ants was made under the terms of an Order in Council by the Foreign Compensation
Commission and reported to the UK Parliament.”
'9 For detail, see Interim Report on Lump Sum Agreements and Diplomatic Protection by David Beder-
man, Report of the Seventieth Conference of the International Law Association (New Delhi, 2002) p.
230, esp. pp. 237—260. See also Weston et al. (1999); Bederman (1993), p. 119.
20 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of the Union of Soviet Socialist Republics, 13 July 1986, Cm 22, Art. 4; Foreign
Compensation (Union of Soviet Socialist Republics) (Distribution) Order 1987, S.I. 1987 No. 663, 43
Annual Report of the Foreign Compensation Commission for the Financial Year ended 31 March 1993.
Cm 2311.
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Nationality and Diplomatic Protection 471
Under the Algiers Accords of January 1981, claims and counter-claims between
the US and Iran were to be resolved by the newly established US-Iran Claims Tri-
bunal. The Tribunal stated in the Esphahanian case”! that dual US-Iran nationals
were entitled to claim before the Tribunal provided that their dominant and effective
nationality was not that of the defendant State. Dominant and effective nationality
was according to the jurisprudence of the Tribunal to be determined by a range of
factors including habitual residence, family ties, language spoken and participation
in public life.”
These claims settlement agreements have tended to be underplayed by academic
writers on the ground that they were lex specialis, but they have enabled just com-
pensation for takings and for injuries to be awarded to many individuals and enter-
prises whose claims would not have met the traditional nationality requirements (or
indeed other requirements) of the classical rules of diplomatic protection.
7.2 Investment Protection Agreements
In 1959 Germany concluded an investment protection treaty with Pakistan which
was designed to remedy for Germany the consequences of loss of its overseas pos-
sessions following the Second World War and to offset the limitations of reliance
on the traditional rules of diplomatic protection. Germany, Switzerland and then
other European States followed this with other bilateral agreements—known as
bilateral investment treaties (BITs) or investment promotion and protection agree-
ments (IPPAs). The agreements were all at first between a developed and a develop-
ing State, and they helped the flow of outward investment from the richer countries
by protecting their investors from the increasing tendency of newly independent
States to assert their sovereignty by expropriating without “prompt, adequate and
effective compensation’ investments mostly made during the colonial era, seeking to
give preferential treatment to their own fledgling enterprises by denying the foreign
investor equivalent, or ‘equitable’ treatment, or imposing stringent restrictions on
repatriation of profits. The newly independent countries used their numerical weight
in the United Nations to try to recast the international economic order—most sig-
nificantly with the 1974 Charter of Economic Rights and Duties.”? The major capital
exporting States meanwhile concluded the OECD Draft Convention on the Protec-
tion of Foreign Property which was based on more traditional standards of protec-
tion of foreign property, but this was never formally adopted as a treaty.”*
As the network of bilateral treaties exchanging protection for the promise of
increased investment grew during the 1970s and 1980s into the hundreds and then
into the thousands, they came for investors to replace the older reliance on diplo-
matic protection. They were initially concluded for the protection of nationals of the
21 Esphahanian and Bank Tejarat, 2 Iran-US CTR 157 (1983-1); noted in 77 AJIL (1983) 646.
22 See Bederman (1993), p. 119.
3 GA Res. 3281, adopted 12 December 1974, with the US and the majority of European Community
States voting against; see Chatterjee (1991).
24 OECD Publications No. 15637, December 1962.
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472 E. Denza
capital exporting States, but—circumventing the restrictions of Barcelona Traction
they normally included direct protection for shareholders. This was seen as econom-
ically essential because so many developing States required incorporation of a local
subsidiary (with the nationality of the host State) as a condition for doing business
or acquiring concessions to exploit natural resources. There have been a number of
efforts to extend the relatively similar rules set out in the bilateral investment agree-
ments into multilateral treaties—so escaping the general tendency for the bilateral
agreements to be concluded between a capital-exporting and a developing coun-
try and thus carrying more weight as a potential source of customary international
law—but to the limited extent that these initiatives have been successful, their main
impact has been in areas other than that of the rules on nationality—in particular on
the enormous growth in international arbitration.” The entry into force of the Treaty
of Lisbon in 2009 gave the European Union a new and exclusive competence over
foreign direct investment—and the implications of this radical shift of powers are
gradually being clarified both by cases decided by the Court of Justice of the EU and
by new agreements concluded by the European Union.”°
7.3 Human Rights Agreements
The third method in which the individual might in seeking redress avoid the rigid
nationality rules as well as the slow and uncertain procedures of diplomatic pro-
tection is through the growing range of direct entitlements under human rights or
humanitarian treaties. These treaties protect rights to property as well as personal
rights such as life and freedom from torture. The International Court of Justice
alluded to this possibility in the Barcelona Traction case—noting that
on the universal level, the instruments which embody human rights do not
confer on States the capacity to protect the victims of infringements of human
rights irrespective of their nationality. It is therefore still on the regional level
that a solution to this problem has had to be sought...”’
The European Convention on Human Rights (ECHR) did not assist Barcelona
Traction in that case since Spain was not yet a Member of the Council of Europe or
a Party to the Convention. But in the succeeding years virtually all Members of the
Council of Europe have become Parties to the ECHR as well as accepting the com-
pulsory jurisdiction of the European Court of Human Rights and the right of indi-
viduals to bring petitions directly before the Court. The European Union has made it
°5 See Bonnitcha et al. (2017), esp. chapter 1, and pp. 50-57 on the definition of ‘investors’ and ‘invest-
ments’ covered by the treaties. For early UK practice see Denza and Brooks (1987), p. 908; International
Law Association (2006), pp. 368-376, 382-385.
26 See Dimopoulos (2011).
27 ICJ Reports 1970, p. 3, at para. 91.
g) Springer Q ASSER PRESS
Nationality and Diplomatic Protection 473
a condition for new applicants for membership that they should first become Parties
to the ECHR and accept the right of individual petition.”
Most individuals bring claims for breach of the obligations under the Convention
against the State of which they are themselves nationals, but the ECHR in Article
1 requires the Contracting Parties to ‘secure to everyone within their jurisdiction
the rights and freedoms defined in [...] the Convention’. For example, individuals
denied refuge in an overseas diplomatic or consular mission of a Member State,”? or
detained in the context of a conflict abroad in which a Member State is engaged may
seek a remedy for denial of their rights without engaging the support of the State
of which they are themselves nationals. Thus in the case of Al-Jedda v. the United
Kingdom the European Court of Human Rights held that an Iraqi national who had
been held by the UK in detention without charge for over 3 years in Iraq while the
UK was an Occupying Power in Iraq as part of a multinational force was ‘within
the authority and control of the United Kingdom throughout...’ His internment was
therefore attributable to the UK rather than (as the UK had argued) to the United
Nations and fell within the jurisdiction of the UK for the purposes of Article | of the
ECHR.*°
8 The Entitlement of Citizens of the EU to Protection from Missions
of Any Member State
As explained above, a distinction must be drawn between formal ‘diplomatic pro-
tection’ by one State against another and ‘protection of nationals’ as practised by
diplomatic missions and consular posts under customary international law and now
as a function of diplomatic agents under Article 3 of the Vienna Convention on
Diplomatic Relations and as a function of consular officers under Article 5 of the
Vienna Convention on Consular Relations. It is this latter form of protection which
under the successive Treaties on European Union beginning with the 1992 Treaty of
Maastricht has been made a right of citizens of the EU. Citizenship of the EU is a
status derived from nationality of any one of the twenty-eight Member States of the
European Union. Each Member State defines without restriction who are by law its
nationals for the purposes of the Treaties, if appropriate informing the other Mem-
ber States, and citizenship of the Union follows automatically.
Article 46 of the EU Charter of Fundamental Rights—which now forms an inte-
gral part of and has the same value as the EU Treaties*'—provides that
?8 ‘The requirement was formalised in the Conclusions of the European Council at Copenhagen in June
1993 which elaborated on the need for candidate States to respect democracy, equality, the rule of law
and human rights.
9 See R (on the application of ‘B’ and Others) v. Secretary of State for the Foreign and Commonwealth
Office [2004] EWCA Civ 1344.
30 Al-Jedda v. the United Kingdom, Appl. no. 27021/08, at paras. 74-86, 53 EHRR 23. For an overview
of international, regional and sub-regional human rights bodies, including the extent to which they per-
mit individual access, see Clooney (2017), chapter 17.
3! Art. 6(1) of the TEU: see Blanke and Mangiameli (2013), pp. 287 and 300-305.
® Springer © Asser press
474 E. Denza
Every citizen of the Union shall, in the territory of a third country in which the
Member State of which he is a national is not represented, be entitled to pro-
tection by the diplomatic and consular authorities of any Member State, on the
same conditions as nationals of that State.”
Article 20 of the Treaty on the Functioning of the European Union (TFEU)—
which lists all the entitlements of citizens of the EU, provides that this right to pro-
tection ‘shall be exercised in accordance with the conditions and limits defined by
the Treaties and by the measures adopted thereunder’. Article 23 of the TFEU then
gives powers for further enabling legislation by the European Parliament and Coun-
cil—but detailed implementing rules and procedures were already in 1995 agreed
among the Member States in the form of a Decision of the representatives of the
Member States—in effect an international agreement.**
The key requirement on Member States under the 1995 Decision was to treat
nationals of other Member States (on proof of their status) as if they were their
own nationals. There is no uniformity among Member States either on the ques-
tion of whether a national has a legal right or merely a legitimate expectation of
receiving protection from his own embassy or consular post, and the EU rules do
not impose any such uniformity. Nor is there uniformity on the extent of protection
offered by individual missions or posts. Missions and consular posts each operate
under national constraints which are legal, practical and financial—performing a
wide range of protective functions. These functions range from the sensitive politi-
cal assistance which may be required by a person unjustly imprisoned or charged,
through administrative functions such as renewal of a passport or registration of a
birth or death to practical assistance with return home or subsistence following a
robbery. Article 5 of the Decision listed the forms of help available and provided
that assistance might be provided in other circumstances. Some functions—such
as the issue of a passport—may only be carried out on behalf of those having the
nationality of the protecting Member State. The specific cases listed in the 1995
Decision were:
(a) assistance in case of death;
(b) assistance in case of serious accident or serious illness;
(c) assistance in case of arrest or detention;
(d) assistance to victims of violent crime;
(e) the relief and repatriation of distressed citizens of the Union.
It was also understood, and confirmed by practice, that sensitive political assis-
tance involving for example challenge to local judicial procedures or laws would
not be within the scope of the protection envisaged. Missions and consular posts
32 For Commentary on this provision, see Denza (2014), pp. 1177-1195; House of Commons Select
Committee on European Scrutiny (2006).
3 Decision 95/553/1995, [1995] OF L 314/73 and Council Doc. 11107/95.
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Nationality and Diplomatic Protection 475
are likely to have guidance regarding rejection of frivolous requests*’ and for secu-
rity for recovery of costs when assisting with repatriation of an individual robbed
of cash and credit cards. The individual from another Member State cannot claim
to be entitled to the treatment which would be given by a post of his own State of
nationality, but only to what is on offer to nationals of the Member State mission
or post offering him protection as a citizen of the EU. Article 6 of the Decision
expressly provided that except in case of extreme urgency, no financial assistance
might be given or expenditure incurred without the permission of the authorities
of applicant’s State—and except in case of express waiver by those authorities, the
applicant must undertake to repay.
The practice of one State protecting the interests of another following breach of
diplomatic or consular relations is of course of long-standing and is now expressly
authorised under Articles 45 and 46 of the Vienna Convention on Diplomatic Rela-
tions and under Article 27 of the Vienna Convention on Consular Relations. Article
8 of the Consular Convention also provides that on appropriate notification to the
receiving State and in the absence of objection, a consular post may exercise consu-
lar functions on behalf of a third State. Protection of diplomatic or consular interests
in other circumstances—such as when a State does not maintain relations for finan-
cial reason—is a more recent practice also now covered in the Diplomatic and Con-
sular Conventions. In those cases the host State may reject the proposed protecting
State, and it has become practice for a special agreement to be concluded between
protecting and protected States listing functions to be performed and providing for
reimbursement of expenses. The host State then has no ground for objecting to pro-
tective functions being exercised by the protecting State on behalf of nationals of
the protected State. The European arrangements are much wider in scope, and it was
at the outset reasonable to suppose that objection might be raised by host States to
protection by a mission or consular post of persons who were not its nationals. Arti-
cle 23 of the TFEU authorises Member States to ‘start the international negotiations
necessary to secure this protection’—and the European Commission has suggested
that Member States should embark separately on negotiations with all non-Member
States (thus envisaging approximately 170 x28 negotiations). In practice the Mem-
ber States have not found further special negotiations ‘necessary’ in order for practi-
cal protection to be extended—the 1995 Decision described above was notified to
all non-member States without raising protest and there appeared to be no instance
of a non-member State raising objection either to the general scheme or in actual
cases. Where negotiations for a new consular convention are independently under
way, Member States have taken the opportunity to confirm the entitlement to protec-
tion of all EU citizens. Of course actual protection usually occurs in circumstances
of emergency, it does not cover sensitive political representations, and the absence
of objection confirms the practice that host States do not usually raise objection to
34 Cases documented by UK consulates include a lady requesting the British consul to arrange for her 40
dogs to be flown home, and a demand by a harassed husband in the context of a matrimonial row that the
consul should translate what his irate Portuguese wife was shouting at him: Dickie (1992), p. 48.
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476 E. Denza
protection by one State of nationals of another except where the second nationality
is their own.
The extended protection opened up by the arrangements for EU citizens has been
most visible and effective in the context of crises whether caused by political events
such as the terrorist attacks in Mumbai in 2008 or by natural disasters such as the
Asian tsunami. In such circumstances diplomatic and consular posts have often
exceeded the requirements in the EU legislation—for example by including non-EU
family members in evacuation arrangements. Increase in numbers of EU business
and holiday travellers has not been matched by increased overseas representation for
which resources have become tightened, so that the increased possibilities of seek-
ing protection available under the EU scheme are greatly to be welcomed. Passports
of most EU Member States (but not those of France or the UK) now give informa-
tion on the entitlement, and details of what services may be secured are also avail-
able online.
On 20 April 2015 the Council of the EU adopted a Directive on the coordination
and cooperation measures to facilitate consular protection for unrepresented citizens
of the Union in third countries and repealing Decision 95/553/EC.*° The Directive
entered into force following national implementation on 1 May 2018. Recital (4) to
the Directive expressly confirms that it “does not affect Member States’ competence
to determine the scope of the protection to be provided to their own nationals’. The
Directive also makes clear that it does not affect rights and obligations under the
Vienna Consular Convention. Article 6 specifies that a Member State is not repre-
sented in a third country if it has no embassy or consulate established there on a per-
manent basis, or if it has no embassy, consulate or honorary consul there ‘effectively
in a position to provide consular protection in a given case’. There is a very modest
enlargement of the specified forms of protection—the ‘crime’ need not be ‘violent’
and the citizen seeking relief or repatriation need not be ‘distressed’. There is a new
entitlement to emergency travel documents.°°
The arrangements for cooperation in the new Directive emphasize strongly the
primary responsibility of the Member State of nationality to provide protection.
Article 10.2 provides
When a Member State receives a request for consular protection from a per-
son who claims to be an unrepresented citizen, or is informed of an individ-
ual emergency situation of an unrepresented citizen, it shall consult without
delay the Ministry of Foreign Affairs of the Member State of which the per-
son claims to be a national or, where appropriate, the competent embassy or
consulate of that Member State, and provide it with all the relevant informa-
tion at its disposal, including regarding the identity of the person concerned,
possible costs of consular protection, and regarding other family members to
whom consular protection may also need to be provided. Except in cases of
35 Council Directive (EU) 2015/637, [2015] OJ L 106/1. For an account of the issues which were contro-
versial during the negotiation of the Directive, see Wouters et al. (2016), p. 563.
36 As provided for in Decision 96/409/CFSP, [1996] OJ L168/4.
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Nationality and Diplomatic Protection 477
extreme urgency, this consultation shall take place before assistance is pro-
vided. The assisting Member State shall also facilitate the exchange of infor-
mation between the citizen concerned and the authorities of the citizen’s Mem-
ber State of nationality.
The Member State of nationality if requested must then provide relevant informa-
tion to the assisting Member State, and is responsible for any necessary contact with
family members or other relevant persons or authorities. Article 3 of the Directive
entitles the Member State of nationality to request the Member State from whom
the unrepresented citizen seeks consular protection to redirect the application to the
State of nationality to enable it to provide protection in accordance with its national
law or practice. This procedure is designed to avoid ‘shopping’ among posts of dif-
ferent Member States in search of the most favourable terms of protection. Even if
the Member State of nationality has no representation in the relevant non-member
State, it may well be able to provide adequate protection by providing legal advice
or funds through telephone or electronic communication. The Directive is designed
to make clear that this is the preferable option. As the European Commission’s Press
release points out: ‘The Directive thus preserves the crucial role of the home coun-
try in taking care of its own citizens in distress abroad’.*’ The Commission main-
tains a website which gives general information about the scheme, helps travellers
find out whether their national State has an embassy or consulate in any third coun-
try and if not provides contact details of missions of other Member States who could
be contacted for assistance.*®
Article 7 also permits permanent arrangements among Member States for provid-
ing protection (as authorised under the Vienna Convention on Consular Relations)
and for practical collaborative arrangements among Member States. This enables
redirection of a request, but is accompanied by the proviso that consular protection
should not be compromised—in particular if the matter requires urgent action by
the Member State first requested. Article 11 sets out the role of Union delegations
in assisting this coordination, facilitating exchange of information among embassies
and consulates and making information about entitlements generally available to the
unrepresented citizen.
Taken as a whole, the new Directive responds well to the approach taken by
almost all of the individuals and organisations who gave evidence on the subject of
consular services to the UK’s Review of the Balance of Competences (undertaken
during the approach to the 2016 Referendum on EU membership).*” Many of the
respondents lived abroad and had experience of using consular services, and they
expected the arrangements for closer sharing of responsibilities to be beneficial in
terms of improving services while hoping that they would not be used as an excuse
to undermine what was already on offer from national consulates and missions.
37 Press release of 20 April 2015.
38 See https://ec.europa.eu/consularprotection/index.action.
39 Review of the Balance of Competences: Consular Services: Evidence from Stakeholders, available
online.
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478 E. Denza
9 The International Law Commission’s Draft Articles
Against this background of long-standing state practice, national and international
cases and analysis by writers, the UN General Assembly in 1996 invited the Inter-
national Law Commission (ILC) to consider the topic of diplomatic protection, and
10 years later, after extensive work under the guidance of two successive Rappor-
teurs, Mohamed Bennouna of Morocco and John Dugard of South Africa, the Com-
mission adopted and submitted draft Articles.*” These Articles have been influential
in subsequent practice and cases, but so far it has not been agreed that they should
be submitted to a Conference with a view to formalizing them in a treaty.
In regard to the importance of nationality as the main basis for the exercise of
diplomatic protection, the Articles for the most part codify established practice. But
there are two areas where the Commission sought to introduce an element of pro-
gressive development. The first related to the question of whether a State is under
any international obligation to exercise diplomatic protection. A proposal that there
should be such an obligation when the wrong complained of constituted violation
of a ius cogens rule was not accepted by the ILC as a whole, but found some sup-
port in the comments of States. Article 19, on Recommended practice, provides that
a State should ‘give due consideration to the possibility of exercising diplomatic
protection, especially where a significant injury has occurred’. This does not really
go beyond the flexible requirements already contained in national legal provisions,
cases or practice, but strengthens the growing trend towards giving greater weight to
the position and expectations of the individual claimant.
The second area where the ILC sought to improve the position of the individual
claimants was that of dual nationality, where the second nationality is that of the
defendant State. The final version of Article 7 provides that
A State of nationality may not exercise diplomatic protection in respect of a
person against a State of which that person is also a national unless the nation-
ality of the former State is predominant, both at the date of injury and at the
date of the official presentation of the claim.
This formulation is more favourable towards the claimant than the traditional or
indeed the current practice. Like a number of other provisions in the draft Articles
it is expressly designed to limit ‘nationality shopping’. It draws some support from
recent practice of arbitral tribunals—though it must be recalled that the terms of
reference of such tribunals, in particular the Iran—United States Claims Tribunal, are
often more generous to the individual than general international practice.
40 Printed, with commentaries, in Report of the ILC on its 58th Session, UN Doc. A/61/10. See Intro-
ductory Note by John Dugard, later Professor of International Law at Leiden University, in UN Audio-
visual Library of International Law.
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Nationality and Diplomatic Protection 479
10 Conclusion
The political and public perception that nationality carries an entitlement to dip-
lomatic protection is stronger than is legally justified. Neither international nor
national laws guarantee timely or specific protective action and all States in prac-
tice exercise their discretion with careful regard to wider aspects of their interna-
tional relations. Although diplomatic protection in the formal sense is no longer
only the prerogative of the stronger States claiming to uphold international rules, the
options open to States in order to enforce the rights of their nationals are substan-
tially reduced since Palmerston’s vigorous action in 1850. Justifying intervention
on the ground of protecting a State’s nationals has since the action of the UK and
France in Suez in 1956 not only become less acceptable in terms of the UN Charter
and customary international law but is also less practised. While forcible measures
to rescue individuals held hostage pass without protest, wider interventions involv-
ing the threat or use of force are now justified by the intervening States mainly on
other grounds.*! While a State’s discretion in regard to conferring nationality under
domestic law is restricted only by international agreements on nationality, it is now
accepted that to have international effect, the nationality link must be a genuine one.
As traditional protective measures by States have become less common, the alter-
native remedies open to injured individuals and economically damaged companies
have by way of compensation been enlarged. Individuals denied justice increasingly
pursue actions under human rights conventions, governments use economic incen-
tives such as enabling credit or enlarging trading links as well as political pressures
to compel defaulting governments to meet their international obligations through
lump sum financial settlements,’” and business enterprises increasingly rely on
investment protection agreements to secure arbitration and compensation for claims
which would be barred under the traditional rules on nationality.
Informal diplomatic and consular protection of nationals abroad continues to be
of great practical benefit and is limited only by the financial constraints faced by
almost all States on overseas expenditure. But increased sharing of protective func-
tions through protection of interests agreements under the mechanisms available
under the Vienna Diplomatic and Consular Conventions and more recently under
the European scheme giving entitlement to citizens of the European Union com-
pensate for these constraints. All these options however continue to emphasize the
primary responsibility of the State of nationality to protect—particularly when the
ground for complaint is politically sensitive and involves criticism of the defendant
government or its institutions.
Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 Interna-
tional License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution,
and reproduction in any medium, provided you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license, and indicate if changes were made.
41 See Gray (2018), pp. 88-92 and 156-160.
#2 Access to the London-based international financial market was an important factor in persuading the
Soviet Government in 1986 to accept a deal to settle the UK claims arising from the 1917 default on Rus-
sian bonds and later nationalisations: see The Times, 16 July 1986.
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480 E. Denza
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