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Full text of "Protecting Powers: International Law
"
See other formats
United Nations Audiovisual Library of International Law
ARTICLES ON DIPLOMATIC PROTECTION
By John Dugard
Professor of International Law
Department of Public Law, Faculty of Law, Leiden University
Historical Context
Codification is a difficult task when there is little jurisprudence on the
subject in question. This was not the case with diplomatic protection as when the
International Law Commission embarked on its codification of this subject there
was already a rich history of case law, backed by treaties, previous attempts at
codification and the writings of jurists. Indeed, on the basis of sources available
for the codification process, this was probably the subject most ripe for
codification ever addressed by the International Law Commission.
The origins of diplomatic protection reach far back into the history of
international law. In 1758 the Swiss jurist Emmerich Vattel expounded the
fundamental principle of diplomatic protection when he wrote that “Whoever ill-
treats a citizen indirectly injures the State, which must protect that citizen” (E.
Vattel, The Law of Nations, or the Principles of Natural Law, Classics of
International Law, Book II, Chapter VI at 136 (ed. C. Fenwich transl. 1916)). The
principle that a State was entitled to protect a national injured abroad became a
central feature of relations between Western European States and the United States
on the one hand and Latin American States on the other during the latter part of
the nineteenth century and the early part of the twentieth century. Nationals of the
Western Powers who flocked to Latin America to exploit its natural resources and
to participate in its industrial development frequently found themselves in disputes
with the unstable and volatile governments of the region over their personal rights
or property rights. They then turned to their national States for protection which
sometimes took the form of arbitration and sometimes the use of force. Inevitably,
the bullying approach adopted by the Western Powers to Latin American States in
protecting their nationals’ interests gave diplomatic protection a bad reputation
among developing nations. The arbitration tribunals, which sometimes comprised
mixed claims commissions, did, however, contribute substantially to the
development of this branch of the law by their jurisprudence. In the inter-war
years attempts were made to codify aspects of the law governing the treatment of
aliens and the principles governing diplomatic protection, particularly at a
codification conference in the Hague in 1930. During the same period a number of
important treatises were written, notably Edwin Borchard’s monumental The
Diplomatic Protection of Citizens Abroad (1919).
After World War II two developments had an impact on the law of
diplomatic protection. First, the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States, 1965, and a myriad of
bilateral investment treaties (BITs) facilitate the protection of foreign investment.
These treaties, which relax the rules governing the nationality of claims and the
exhaustion of local remedies, have substantially changed the legal environment of
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international investment and reduced appeals to diplomatic protection in respect of
property claims.
Secondly, the advent of the human rights treaty has seen the conferral of
rights on individuals which may be asserted not only against an individual’s own
State but also against other States, without the intervention of the individual’s
national State. Many have argued that this makes diplomatic protection redundant.
Diplomatic protection is therefore today not the only instrument of
international law that may be used by an individual whose personal or property
rights have been unlawfully violated abroad by a foreign government. BITs
provide protection for the investments of foreigners and human rights treaties offer
remedies for the violation of personal human rights. But diplomatic protection
remains a mechanism of international law that is still employed by States to secure
just treatment for their nationals abroad. Moreover it has largely lost its reputation
as a procedure used by rich, developed nations to interfere in the domestic affairs
of developing nations. This is evidenced by the manner in which developing
nations have not hesitated to invoke international law’s oldest mechanism for the
protection of aliens abroad.
As a branch of law with relatively settled rules and a rich jurisprudence to
support these rules, diplomatic protection was an obvious candidate for
codification by the International Law Commission (ILC). The subject is, however,
closely related to that of State responsibility and this resulted in diplomatic
protection suffering the same fate as State responsibility in respect of codification.
In 1956 F.V. Garcia Amador of Cuba was appointed Special Rapporteur to the
Commission on the subject of State responsibility. His focus on the primary rules
of State responsibility for injuries to aliens and their property, which included
some consideration of diplomatic protection, was highly controversial and failed to
achieve consensus. The project was rescued by the next Special Rapporteur,
Roberto Ago of Italy, who decided not to examine the primary rules which
describe the acts or omissions that give rise to responsibility and instead to limit
the study to the secondary rules of State responsibility, that is the rules comprising
the framework of State responsibility dealing with such matters as the attribution
of conduct to a State, the invocation of the responsibility of a State and the
consequences of a wrongful act of a State. Progress under Ago and his successors
was slow (and at times confused) and it was not until 1996 that a set of draft
articles was completed on first reading. In 2001, under the rapporteurship of James
Crawford of Australia, the ILC finally adopted a set of draft articles on second
reading. These draft articles contain only one provision dealing directly with
diplomatic protection. Article 44 provides that for a claim to be admissible it
should comply with the rules governing the nationality of claims and the
exhaustion of local remedies, but makes no attempt to consider the content of
these rules. Of course, rules considered in this set of draft articles, such as the
attribution of conduct to a State and the remedies available to redress a wrongful
act, apply to injury to aliens as well as to other internationally wrongful acts.
It was only when the ILC was about to embark on its second reading of the
draft articles on State responsibility that it was able to turn to the subject of
diplomatic protection itself. In 1996 the General Assembly invited the ILC to
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consider the topic of diplomatic protection and in 1997 the Commission appointed
Mohamed Bennouna of Morocco as Special Rapporteur on this subject. When he
resigned from the Commission, John Dugard of South Africa became Special
Rapporteur. He presented seven reports to the Commission. In 2006 a set of
nineteen draft articles on diplomatic protection was adopted. The question whether
to adopt a convention on the basis of these articles is still before the General
Assembly.
Significant Developments in Negotiating History
The line between codification and progressive development is very fine.
Rules that seem to enjoy the support of State practice often become uncertain
when subjected to the scrutiny of the codifier. Consequently there were extensive
debates within the ILC about a number of issues. These included the following
questions.
Use of Force
Although there is some support for the view that a State may use force in the
exercise of the right of self-defence to protect its nationals who are threatened with
serious bodily injury abroad, the ILC rejected a proposal that this be considered as
the ultimate exercise of diplomatic protection.
An Injury to a National is an Injury to the State
Traditionally diplomatic protection has been viewed as a right vested in the
State because an injury to a national is seen to be an injury to the State itself. This
fiction, which was proclaimed by Vattel in 1758 (cited above), was endorsed by
the Permanent Court of International Justice in 1924 in the Mavrommatis Palestine
Concessions case when it declared that “by taking up the case of one of its subjects
and by resorting to diplomatic protection or international judicial proceedings on
his behalf, a State is in reality asserting its own rights — its right to ensure, in the
person of its subjects, respect for the rules of international law” (Mavrommatis
Palestine Concessions (Greece v. U.K.), Judgments, P.C.I.J. Reports 1924, Series
A, No 2, p. 12). This explanation for diplomatic protection was premised on the
assumption that under early international law the individual had no rights under
international law. Subsequent developments in respect of human rights cast doubt
on the continued validity of this explanation for diplomatic protection. Today the
individual is the subject of many rules of international law which protect him or
her against his or her own government and abroad against foreign governments.
The ILC therefore was in doubt as to whether it was still necessary to justify
diplomatic protection on the fiction that an injury to a national is an injury to the
State. Consequently article 1 of the draft articles, which defines diplomatic
protection, leaves this matter open and simply defines diplomatic protection as the
invocation of responsibility by a State for an injury caused by an internationally
wrongful act to a national of that State.
Right or Obligation to Exercise Diplomatic Protection
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A State has the right to exercise diplomatic protection. But is this a
discretionary right, as asserted by the International Court of Justice in the
Barcelona Traction case (Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain), Judgment, I.C.J. Reports 1970, p. 3), or is there an obligation
on a State to exercise diplomatic protection on behalf of a national, particularly
one who has been subjected to treatment constituting the violation of a norm of jus
cogens? A proposal by the Special Rapporteur to acknowledge that there was
some obligation on States, however limited, in the latter case, was rejected by the
ILC at first reading. However, as a result of the suggestion by some States in their
comments on the draft articles accepted at first reading that provision be made for
such an obligation, a recommendation was made in the draft articles adopted at
second reading that States “[g]ive due consideration to the possibility of exercising
diplomatic protection, especially when a significant injury has occurred” (article
19).
Genuine Link
In the Nottebohm case, the International Court of Justice held that a State
wishing to exercise diplomatic protection was required to prove that there was “a
genuine connection of existence” between the national sought to be protected and
the State (Nottebohm case (second phase) (Liechtenstein v. Guatamala),
Judgment, I.C.J. Reports 1955, p. 4). The ILC took the position that this decision
was to be limited to the facts of the case in question and refused to provide that a
natural person was required to prove such a genuine link with the protecting State
in addition to his or her nationality.
Multiple Nationality
While the ILC agreed that any State of which a dual or multiple national is a
national might exercise diplomatic protection on behalf of such a national where
the national was not a national of the defendant State, there was disagreement as to
whether this principle applied where the national was also a national of the
defendant State. This was an issue that had troubled the Iran-United States Claims
Tribunal in a number of cases (see, for example, Case No. A/18, Iran-U.S. C.T.R.,
vol. 5 (1984), p. 251). In order to resolve this matter, the ILC decided that a State
might only exercise diplomatic protection in the latter case where it was
established that the nationality of the claimant State was predominant, both at the
date of injury and at the date of presentation of the claim.
Stateless Persons and Refugees
In a clear exercise in progressive development of the law, the ILC adopted a
provision allowing States to exercise diplomatic protection in respect of stateless
persons and refugees who were “habitually resident” in the claimant State (article
8).
State of Nationality of a Corporation
In the famous Barcelona Traction case, the International Court of Justice
held that the right to exercise diplomatic protection on behalf of a corporation
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belonged to the State in which the corporation was incorporated and had its
registered office (Barcelona Traction, p. 42). Although the Court refused to apply
the genuine link test expounded in Nottebohm to corporations, it did suggest that
there was a need for some “permanent and close connection” between the State
exercising diplomatic protection and the corporation. The ILC therefore adopted
the incorporation test but at the same time acknowledged that in certain
circumstances factors demonstrating a “permanent and close connection” with a
company might prevail over incorporation.
Shareholders
In principle a corporation is to be protected by the State of nationality of the
corporation and not by the State(s) of nationality of the shareholders of a
corporation. This principle was reaffirmed by the International Court of Justice in
Barcelona Traction (pp. 34-35), as the Court feared that if the States of
shareholders were permitted to exercise diplomatic protection, this would lead to a
multiplicity of claims (pp. 48-49). There are, however, exceptions to this rule, as
acknowledged by the Court in Barcelona Traction (pp. 40-41, 48). First, where the
corporation has ceased to exist in its place of incorporation and, secondly, where
the State of incorporation was itself responsible for inflicting injury on the
company and the shareholders’ sole means of protection was through their State(s)
of nationality. The latter exception had some support in arbitral awards and in the
separate opinions of judges in Barcelona Traction (pp. 72-75 (Judge Fitzmaurice),
134 (Judge Tanaka) and 191-193 (Judge Jessup)), but was initially contested by a
substantial minority of the ILC before it was adopted.
Exhaustion of Local Remedies
Unlike the rules governing the nationality of claims, the rules relating to the
exhaustion of local remedies presented few difficulties. There was general
agreement that local remedies were to be exhausted except when there was no
reasonably available local remedy. There was, however, some debate over the
question whether local remedies were to be exhausted when there was no relevant
connection between the injured person and the State responsible for the injury.
There was agreement that local remedies need not be exhausted when injury had
been caused by transboundary environmental harm — as when radioactive fallout
from the Chernobyl nuclear plant was felt in Scandinavia - or from the shooting
down of an aircraft that had accidentally strayed into a States’ airspace (as
occurred when Bulgaria shot down an EI-Al flight that had accidentally entered its
airspace).
J. Calvo Clause
In the late 1800s Carlos Calvo, an Argentinian lawyer, proposed that Latin
American States should avoid claims for diplomatic protection by compelling
aliens to waive recourse to international remedies in respect of disputes arising out
of a contract entered into with the host State. The validity of such a waiver clause,
known as the “Calvo Clause”, was disputed by Western Powers on the ground that
an individual has no right to waive a right that belongs to the State — in terms of
the rule in Mavrommatis. The “Calvo Clause” was, however, treated by Latin
ul
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American States as a regional custom and incorporated into the constitutions of
some States. An attempt by the Special Rapporteur to find a compromise that
would accord some recognition to the “Calvo Clause”, particularly in light of the
objections to Mavrommatis discussed above, was, however, vigorously opposed
by some members of the Commission and was not pursued.
Summary of Key Provisions
The articles on diplomatic protection are concerned with the secondary rules
of diplomatic protection. They make no attempt to describe the conduct of States
that causes injury to the persons or property of foreign nationals and gives rise to
the responsibility of such States. Instead they focus on two issues: the nationality
of claims, which focuses on the requirements of nationality that must be satisfied
by natural persons and corporations before they may be protected by their State of
nationality (articles 3 — 13); and the scope of the rule requiring local remedies to
be exhausted before a claim for diplomatic protection may be brought by a State,
and the exceptions to this rule (articles 14-15).
Article 1 defines diplomatic protection as 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 national of the former State. Article 2 affirms that a State has
the right to exercise diplomatic protection in accordance with the articles; and
article 3 proclaims that it is the State of nationality that is entitled to exercise
diplomatic protection.
Articles 4 to 8 cover the subject of the nationality of natural persons. A
person may acquire nationality by birth, descent, nationalization, the succession of
States or any other manner not inconsistent with international law (article 4).
Nationality must continue from the date of injury to the date of the official
presentation of the claim (article 5). Dual or multiple nationals may be protected
by any State of nationality against a State of which such person is not a national
(article 6), but diplomatic protection may only be exercised against a State of
which such person is also a national if the nationality of the claimant State is
“predominant” (article 7). Article 8 provides for the diplomatic protection of
stateless persons and refugees who are “lawfully and habitually resident” in the
claimant State.
Articles 9 to 13 deal with the diplomatic protection of legal persons. Article
9 provides that the State of nationality of a corporation is the State under whose
law the corporation was incorporated. However, when the corporation is
controlled by nationals of another State, has no substantial business activities in
the State of incorporation, and has its seat of financial management and control in
another State, that State is to be regarded as the State of nationality. A State is
entitled to exercise diplomatic protection in respect of a corporation that was its
national continuously from the date of injury to the official presentation of the
claim (article 10). The State of nationality of shareholders in a corporation may
not exercise diplomatic protection in respect of such shareholders in the case of
injury to the corporation unless the corporation has ceased to exist according to the
law of the State of incorporation or the State of incorporation of the company is
responsible for causing the injury and the incorporation in that State was required
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as a precondition for doing business there (article 11). Where an internationally
wrongful act causes direct injury to the shareholders, as distinct from the
corporation itself, the State of nationality of such shareholders may exercise
diplomatic protection in respect of its nationals (article 12).
Only two provisions deal with the exhaustion of local remedies. Article 14
affirms that a State may not present a claim for diplomatic protection before local
remedies have been exhausted and defines local remedies as legal remedies before
judicial or administrative courts or bodies. This article also makes it clear that the
exhaustion of local remedies rule applies only to cases in which the State has been
injured “indirectly”, that is, through its national. It does not apply where the
claimant State is directly injured by the wrongful act of another State. In the case
of “mixed claims” containing elements of both injury to the State itself and injury
to the nationals of that State, a “preponderance“ test is applied to ascertain which
claim is to prevail. Article 15 provides for the exceptions to the local remedies
rule, that is, cases in which local remedies need not be exhausted. These are cases
in which local remedies are obviously futile in the sense that there are no
reasonably available local remedies; the respondent State has been guilty of undue
delay in the remedial process; there is no relevant connection between the injured
person and the respondent State; and the respondent State has waived the need to
exhaust local remedies.
There are a number of miscellaneous provisions which make it clear that the
articles are not to prevail over other procedures for the protection of an injured
aliens’ rights contained in human rights conventions (article 16), bilateral
investment treaties (article 17) and the rule of customary international law
allowing the State of nationality of a ship to seek redress on behalf of crew
members injured in connection with an injury to the vessel resulting from an
internationally wrongful act (article 18).
Article 19 is unusual as it contains a number of recommendations to States
in respect of the exercise of diplomatic protection. States should in terms of this
provision give due consideration to the possibility of exercising diplomatic
protection to nationals, especially when a significant injury had occurred; take into
account the views of injured persons with regard to claims for reparation under
diplomatic protection; and transfer to the injured person any compensation
recovered for injury by another State.
The Influence of the Articles on Subsequent Developments
Although the articles on diplomatic protection have not been translated into
treaty form, there is no doubt that they are today seen as the definitive statement of
the rules of customary international law on this subject. This is shown by the
manner in which they were cited by the International Court of Justice in the Diallo
case (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 582, paras. 39,
91-94) and the impact they have had on legal writing (see, for example, C.F.
Amerasinghe, Diplomatic Protection (2008)).
Some of the issues considered by the ILC have received the attention of
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courts. In Yukos Universal Limited (Isle of Man) v. The Russian Federation) (PCA
Case No. AA 227, pp.199-200, paras 551-552) an arbitration tribunal held that it
was not necessary for a party to prove nationality until the making of the award:
for the requirement of continuous nationality to be satisfied it was sufficient to
prove nationality from the date of the injury to the date of the official presentation
of the claim. This finding followed the ILC articles 5 and 10 and rejected the
ruling in The Loewen Group, Inc. and Raymond L. Loewen v. United States of
America, ICSID Case No. ARB (AF)/98/3 (2003), 42 International Legal
Materials 811, pp. 847-849) holding that nationality should continue until the
making of the award. In Diallo, the International Court of Justice considered
article 11(b) of the ILC draft articles which allows the State of nationality of
shareholders to protect shareholders when the State of nationality of the
corporation was itself responsible for causing injury to the corporation, and
incorporation in that State was required as a condition for doing business there.
Whether this is a customary rule of international law was left open by the Court
(Ahmadou Sadio Diallo, paras. 91-93).
Diplomatic protection remains an important part of the forensic arsenal
available to aliens who have been injured abroad. It is true, as the International
Court of Justice observed in Diallo (para. 88), that the role of diplomatic
protection has “somewhat faded” in respect of investment disputes, and that
human rights conventions provide international mechanisms for bringing
complaints against governments responsible for violating the rights of aliens. On
the other hand, as shown by the Diallo case, in which the Republic of Guinea
brought proceedings against the Democratic Republic of the Congo premised on
diplomatic protection in respect of both injury to Mr Diallo’s person and injury to
his rights in a corporation, diplomatic protection serves as a residual remedy.
Moreover, the ineffectiveness of the remedies offered by human rights
conventions means that injured individuals are better advised to seek the
protection of their national State than to invoke the relief offered by individual
complaints to human rights monitoring bodies. That this is so is demonstrated by
the fact that injured aliens generally appeal to their national State for assistance
and if this is refused petition the courts of their national State to intervene on their
behalf (there have been several attemts to persuade courts to order the government
to exercise diplomatic protection in South Africa. See J. Dugard, International
Law: A South African Perspective). The ILC missed an opportunity to advance the
relevance of diplomatic protection when it failed to fashion a right to diplomatic
protection in respect of nationals subjected to the violation of peremptory norms
abroad. Possibly, if the articles are translated into treaty form, States will be
encouraged by article 19 of the articles and the “responsibility to protect” doctrine
proclaimed by the General Assembly in its 2005 World Summit Outcome
Document (resolution 60/1 of 16 September 2005) in respect of serious
international crimes, to endorse a right to diplomatic protection.
Related Materials
A. Legal Instruments
Convention on the Settlement of Investment Disputes between States and
Nationals of Other States, Washington, 18 March 1965
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B. Jurisprudence
Mavrommatis Palestine Concessions (Greece v. U.K.), Judgments, P.C.I.J.
Reports 1924, Series A, No 2
Nottebohm case (second phase) (Liechtenstein v. Guatamala), Judgment, I.C.J.
Reports 1955, p. 4
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),
Judgment, I.C.J. Reports 1970, p. 3
Iran-United States Claims Tribunal, Case No. A/18, Iran-U.S. C.T.R., Vol. 5
(1984)
The Loewen Group, Inc. and Raymond L. Loewen v. United States of America,
ICSID Case No. ARB(AF)/98/3 (2003), 42 International Legal Materials.811, pp.
847-849
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 582
Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No.
AA 227, 30 November 2009
C. Documents
General Assembly resolution 60/1 of 16 September 2005 (World Summit
Outcome)
D. Doctrine
C.F. Amerasinghe, Diplomatic Protection (USA, Oxford University Press, 2008)
E. Vattel, The Law of Nations, or the Principles of Natural Law, Classics of
International Law, Book II, Chapter VI at 136 (ed. C. Fenwich transl. 1916)
Edwin Borchard, The Diplomatic Protection of Citizens Abroad (New York,
Banks Law Publishing Co., 1919)
J. Dugard, International Law: A South African Perspective, 4th ed. (Juta
Academic, 2013)
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