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Full text of "Protecting Powers: International Law
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KS
LR
The King’s Student Law Review
Diplomatic Protection and Human Rights: Quo Vadis?
Author: Alexander Heeps
Source: The King’s Student Law Review, Vol. 8, No. 2 (2017) pp. 1-17
Published by: King’s College London on behalf of The King’s Student Law Review
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London School of Law. The Review seeks to publish high-quality legal scholarship written by undergraduate and graduate
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info @kslr.org.uk
© King’s Student Law Review 2017
Diplomatic Protection and Human Rights: Quo Vadis?
Alexander Heeps
Abstract
The protection of nationals abroad has been routinely discussed in the academic literature,
typically in the context of the law of state responsibility and diplomatic protection. For
centuries, when nationals are abroad, they have had recourse to their state of nationality to
exercise diplomatic protection on their behalf when they have been injured. However, following
the conclusion of the World War II, the attention paid to human rights has increased and there
has subsequently been a proliferation of international and regional human rights conventions,
accompanied with the necessary enforcement machinery to protect those human rights. As a
result of this development, it has been questioned whether there is still a need for diplomatic
protection, as nationals can resort to relying on human rights norms to seek protection when
they are abroad. The purpose of this article is to discuss whether the proliferation of human
rights replaces the need for diplomatic protection, or whether the calls to make diplomatic
protection redundant are perhaps exaggerated in light of the enforcement and remedial
weaknesses inherent in human rights. This paper maintains that while human rights and
diplomatic protection have their weaknesses, they can and should coexist to protect nationals
abroad.
1. Introduction
For centuries, individuals have moved from one state to another. The reasons for doing so are
diverse: it may be to seek work in another state, it may be driven by the need to escape
persecution in one state, or it may be to seek investment and/or business opportunities in
another state.’ Regardless of the reason for moving to another state, it follows that there is no
guarantee that individuals will receive immunity from a violation of human rights or from
sustaining an injury when they are abroad. However, when an individual is injured in a country
of which it is not a national: how does one seek a remedy for the violation that has taken place?
Typically, the protection of nationals abroad has been studied under the headings of state
responsibility and diplomatic protection.” When an individual has suffered or been injured by
an internationally wrongful act, that individual can ask his or her state of nationality to
intervene and exercise diplomatic protection on their behalf. However, more recently, there
' The International Labour Organization estimates that there are around 232 million international migrants, of
which 150 million are labour migrants. For further statistics, see: International Labour Organisation, ‘Labour
Migration’, (International Labour Organization, 15 December 2015) accessed 25 March 2013.
? Tt is not within the scope of this article to repeat the substance of the law of state responsibility as it applies to
‘aliens’, for further literature on this topic refer to, inter alia, C. Amerasinghe, State Responsibility for Injury to
Aliens (London: Clarendon Press 1967); R. Lillich, International Law of State Responsibility for Injuries to Aliens
(Charlottesville: UPV 1983).
if
may be more options available to seek a remedy for the same wrong, and it has been argued
that diplomatic protection’s monopoly on the protection of nationals abroad is about to be
broken in light developments in human rights law. The proliferation of human rights law since
the end of World War II now questions whether there is a need to rely on diplomatic protection
to protect the rights of nationals abroad. In other words, has human rights law replaced the need
for diplomatic protection to protect nationals abroad? This article seeks to contribute to this
contemporary polemic, and to determine whether human rights law replaces the institution of
diplomatic protection, or whether these claims are perhaps exaggerated, using contemporary
examples from different human rights regimes.
This article is therefore structured as follows: firstly, it will chart the historical development
and legal framework surrounding state responsibility and diplomatic protection to clearly
define what is meant by diplomatic protection (Section 2). Following this, the proliferation of
human rights since WWII will be analysed, and it will be shown how this relates to diplomatic
protection (Section 3). At this juncture, it will be examined whether human rights
developments have replaced the need for diplomatic protection considering the perceived
enforcement and remedial weaknesses, and discuss ways in which both human rights law and
diplomatic protection may coexist (Section 4). In doing so, this article will use examples from
international human rights law regimes and contemporary human rights problems to strengthen
the article’s argument, viz. that claims that diplomatic protection has been replaced are
exaggerated. Finally, some concluding observations will be made (Section 5).
2. Diplomatic Protection in International Law
2.1 State Responsibility: The Relationship with Diplomatic Protection
Any discussion relating to diplomatic protection is not complete without giving due regard to
the law of state responsibility. It is the case that states are subjected to various obligations
under international law, which naturally they must fulfil. However, international law recognises
that when states do not fulfil these obligations, then the state will be held responsible for this
failure.? This principle of international law is neatly encapsulated in the Spanish Zone of
Morocco case whereby it was held: “responsibility is the necessary corollary of a right. All
rights of an international character involve international responsibility. If the obligation in
question is not met, responsibility entails the duty to make reparation”.* In that regard,
international law recognises that where states do not uphold their obligations, there will be
ramifications for that act or omission.
Regarding the law of state responsibility, a further distinction must be made between primary
rules of state responsibility and secondary rules of state responsibility. The primary rules of
state responsibility determine when an international obligation has been violated.° Only once it
has been established that an internationally wrongful act has taken place, can diplomatic
3 J. Crawford, Brownlie’s Principles of Public International Law (Oxford: OUP 2012), 540; H. Strydom et al.,
International Law (Oxford: OUP 2016), 119.
4 Spanish Zones of Morocco Claims (1925) 2 RIAA 615, 641.
5 A detailed discussion of the primary rules of state responsibility lies outside the scope of this article. For further
reading, see A. Abass, International Law: Text, Cases and Materials (Oxford: OUP 2012), 240-283.
2
protection be used to extract restitution for the wrongful act. As such, only when there exists a
breach of international law can diplomatic protection be used. Therefore, the secondary rules of
state responsibility pertain to how to remedy the commission of an internationally wrongful act.
Crawford neatly encapsulates this distinction by stating “[d]iplomatic protection, classically, is
the mechanism by which a State might espouse a claim of one of its nationals in respect of an
injury arising from a breach of an international obligation by another State”.’ Diplomatic
protection therefore serves as a means of enforcing state responsibility.®
At this juncture, two key features of diplomatic protection should be highlighted. Firstly,
diplomatic protection is somewhat of an umbrella term as there is no one standard form that
diplomatic protection may take. When a state exercises diplomatic protection, it may engage in
mediation with another state, resort to international litigation, impose economic sanctions or
abrogate diplomatic ties with the violating state.’ Historically, it would have engaged in force
with the other state for breaching international law, which led to the phenomenon known as
‘gunboat diplomacy’ .!°
The second noticeable feature of diplomatic protection is that it is a subsidiary remedy, and can
only be used once the primary rules of state responsibility have established that an
internationally wrongful act has taken place. Furthermore, there are certain conditions (which
will be discussed infra) that must be fulfilled before a national can ask his or her state of
nationality to exercise diplomatic protection, and therefore the subsidiary nature of diplomatic
protection is explicated on the fact that those conditions must be fulfilled.
2.2 Diplomatic Protection: Development and Definition
2.2.1 Development
In comparison to other facets of international law, diplomatic protection is a comparatively
recent legal development.'! The theoretical foundations of diplomatic protection were laid
down by a Swiss Jurist - Emer de Vattel — who is credited with establishing the doctrinal
foundations of diplomatic protection. In his seminal treatise of 1586 — The Law of Nations, or
the Principles of Natural Law — Vattel theorised that the state lived vicariously through its
nationals; therefore, harming a national was tantamount to harming the state itself. In his own
words, Vattel opined:
°C. Amerasinghe, Diplomatic Protection (Oxford: OUP 2008), 37; H. Strydom et al., International Law, 119.
TJ, Crawford, ‘State Responsibility’, in R. Wolfrum (ed), Max Planck Encyclopedia of Public International Law
(Online edition, 2006), 59.
8 A. Abass, International Law: Text, Cases and Materials, 288 et seq.
, John Dugard, ‘First Report on Diplomatic Protection’,
http://legal.un.org/ilc/documentation/english/a_cn4_506.pdf, 217.
'0Tt should be noted that the use of force in international law is, generally, proscribed. See for example, Article
2(4) of the United Nations Charter which stipulates, “[a]ll members shall refrain in their international relations
from the threat or use of force against the territory or political independence of any state, or in any other manner
inconsistent with the Purposes of the Charter”. For a good historical overview of ‘gunboat diplomacy’, see B.
McBeth, Gunboats, Corruption and Claims: Foreign Intervention in Venezuela, 1899-1908 (Westport: Greenwood
Press 2001).
1 C, Amerasinghe, Diplomatic Protection, 8.
[w]hoever uses a citizen ill, indirectly offends the State, which is bound to
protect this citizen; and the sovereign of the latter should avenge his wrongs,
punish the aggressor, and, if possible oblige him to make full reparation; since
otherwise the citizen would not obtain the great end of the civil association,
which is safety. '?
It is important to remember the time-period in which Vattel was writing, and to note that there
are several critiques which can be derived from Vattel’s works.'? Notwithstanding these
critiques, however, the theoretical construct laid down by Vattel remains the same today. It is
the case that the state has the ultimate right to determine whether it wishes to exercise
diplomatic protection, and has rather broad discretion in choosing whether to do so.'* Therefore
speaking of an individual right to diplomatic protection is somewhat of a misnomer, and
something which has never been recognised in international law.'°
The use of diplomatic protection to protect citizens’ interests has not always been universally
accepted. During the 19" century, following the expansion of international trade, diplomatic
protection was frequently used to protect nationals when they were abroad. In Latin America,
in particular, there was a wealth of untapped natural resources which were very much in
demand in Europe and North America and as a such there was a surge in trade in this area
which meant that many Europeans travelled to Latin America to maximise their wealth and to
seek new business opportunities. However, many states in Latin America had recently gained
their independence and the political situation in many Latin American states was somewhat
tumultuous, meaning that injuries to ‘aliens’ took place on a regular basis. Latin American
countries recently gained their independence in the 19™ century, and possessed a wealth of
natural resources and commodities that were coveted by Western powers. Unable to exploit the
economic benefits of these resources, the Latin American countries were dependent on foreign
investment and migration to realise these resources. The economic and political conditions in
these countries were anything but stable, meaning that the alien workforce regularly appealed
to their state of nationality to intervene diplomatically on their behalf.!° These countries, fearful
of what they believed was a form of imperialism carried out by the perceived Western powers,
wished to curtail the use of diplomatic protection in order to vindicate their sovereignty and
E, Vattel, The Law of Nations, or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations
and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (Illinois:
Liberty Fund, 2008), §71.
‘3 Inter alia, F. Dunn, The Protection of Nationals: A Study in the Application of International Law (Baltimore:
John Hopkins Press 1932), 52. Dunn remarked: “... [Vattel’s] personification of the state as an organic unit made
up of the sovereign and his subjects (from which he derived his thesis that an injury to a citizen is an injury to the
state) undoubtedly served a useful purpose in the juristic evolution of the modern state, but it is not easy to apply
to the modern world of extensive international trade and intercourse, and easy and frequent changes of allegiance”.
See also A. Vermeer-Kiinzli, ‘As If: The Legal Fiction in Diplomatic Protection’, 18 EJIL (2007) 39-40.
4 Barcelona Traction, Light and Power Company Limited, Second Phase, Judgment, ICJ Reports 1970. “Within
the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fir, for it is its own right that the State is asserting (...) the State must be viewed as the
sole judge to decide whether its protection will be granted.”
'S Mavrommatis Palestine Concessions, Judgment No 2, 1924, PCIJ, Series A, No 2, “It is an elementary principle
of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law
committed by another State (...). By taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting its own right, its right to ensure, in
the person of its subjects, respect for the rules of international law.”
‘61D. Shea, The Calvo Clause (Minneapolis: University of Minnesota Press 1955), 12. Shea notes that the evidence
provided to the state of nationality was not often convincing, and that because of domestic political pressures, the
states often exercised diplomatic protection notwithstanding the fact that the evidence of an injury was dubious.
4
they developed a doctrinal framework to counter the perceived abuses of diplomatic
protection. !7
This use of diplomatic protection was seen as being used to exploit weaker countries, and
therefore the use of diplomatic protection was somewhat of a bone of contention for these Latin
American states who often resented the use of diplomatic protection.'’ One Argentinean
diplomat — Carlos Calvo - wrote extensively on his opposition to the use of diplomatic
protection, espousing that there should be equality between sovereign nations. According to
Calvo, foreigners should have no greater rights than nationals, and thereby the use of
diplomatic protection should be curtailed. In the event of any dispute, Calvo argued that the
local courts and tribunals should be competent to decide the outcome of the dispute, and not
through diplomatic protection.’
Calvo’s ideas, however, have never been fully embraced by the international community.”° One
of the main reasons behind this was because its logic ran contrary to established international
law at the time, in that it meant that states were not permitted to establish claims on behalf of
their nationals. And according to the view of Smith, Calvo’s reasoning was illogical since it
could lead to a situation whereby if one state deprived all of its citizens of their rights, then it
would be able to do this for non-nationals as well, which would clearly be unacceptable.”!
Instead, what was favoured by the international community was the advancement of an
‘international minimum standard’ according to which there is a minimum standard of treatment
which states have to afford to all non-nationals, which applies irrespective of the treatment
rendered to nationals.”
2.2.2 Definition and Conditions
In defining what is meant by diplomatic protection, this article will adopt the definition
contained in the Draft Articles of Diplomatic Protection,”? which eruditely extrapolates the
features of diplomatic protection according to the view of the international community. Article
1 of the Draft Articles of Diplomatic Protection stipulates:
Diplomatic protection consists of the invocation by a State, through diplomatic
action or other means of peaceful settlement, of the responsibility of another
State for an injury caused by an internationally wrongful act of that State to a
'” For a fuller and historical, understanding of the use of diplomatic protection in Latin America, see ibid., 9-11, 14
“Not surprisingly, the Latin American republics saw in these ‘imperialistic encroachments’ an enemy to be greatly
feared’. C. Amerasinghe, Diplomatic Protection, 21 — ‘Inevitably diplomatic protection of this kind came to be
seen by developing nations, particularly in Latin America, as a discriminatory exercise of power rather than as a
method of protecting the lawful rights of aliens’.
'8 Shea notes that the Latin American countries were particularly opposed to the use of diplomatic protection
because they viewed the use of diplomatic protection as a form of ‘economic imperialism’. See further ibid., 13.
9 C. Calvo, Le Droit International: Théorique et Practique Volume I (Paris: Tome Premier 1896), 350.
2° For a good discussion of the effect of the Calvo Clause, please consult: W. Shan, ‘Is Calvo Dead?’, 55 AJCL
(2007), 123-165.
21 R. Smith, Textbook on International Human Rights (Oxford: OUP 2003), 9.
>? ibid., 9-10.
3 Draft Articles on Diplomatic Protection (2006), Official Records of the General Assembly, Sixty-First Session,
Supplement No 10) (A/61/10).
5
natural or legal person that is a national of the former State with a view to the
implementation of such responsibility.”
This definition of diplomatic protection affirms its subsidiary nature, since from the reading of
this definition it follows that the use of diplomatic protection is contingent on the finding of an
internationally wrongful act (a reference to the primary rules of state responsibility). This
definition is also comprehensive in that it also leaves open the means that diplomatic protection
may take; while the definition lists “diplomatic action or other means of peaceful settlement” as
a means of diplomatic protection, it is silent on what form this may take; therefore, this
definition is open enough to cover all other forms of diplomatic protection which may include
mediation,” arbitration,”° international litigation, 7” economic sanctions etc. As a result, this
definition neatly encapsulates the raison d’étre of diplomatic protection and therefore will be
the definition of diplomatic protection adopted in this article.
In addition, the subsidiary nature of diplomatic protection is also inherent from the fact that
certain conditions must be fulfilled before a state can have recourse to diplomatic protection.
These particular conditions have been formed as a result of previous diplomatic protection
claims, particularly from the case law of the International Court of Justice (and its predecessor,
the Permanent Court of International Justice). These conditions have been codified in the
Draft Articles on Diplomatic Protection, which have been developed and created by the work
of the International Law Commission, and which reflect the views of the international
community on how diplomatic protection should be exercised.”
4 Note, that although diplomatic protection covers the protection of legal persons, this contribution eschews an
analysis of the diplomatic protection of legal persons, and instead focuses on the diplomatic protection of natural
persons.
5 Mediation in this sense refers to a dispute that is resolved by bringing the parties together before a third party,
and trying to ensure that a mutually agreeable solution can be found. It should be furthermore noted that mediation
in international dispute settlement does not refer to one particular procedure, but the mediation may take place in
different formats. By way of contrast to inter-state negotiation, mediators carry out their work proactively, and will
present proposals and information to states on how best to solve their dispute. There is no obligation to accept the
mediator’s proposals, but may assist states that are unable to negotiate a dispute on their own. Mediating disputes
is present, for example, within the International Committee of the Red Cross and regularly carried out through
various branches of the United Nations. For a more holistic and in-depth analysis of international mediation,
please consult: J. Merrills, International Dispute Settlement (Cambridge: CUP 2011), 26-40.
26 By way of contrast to negotiation and mediation — which can be regarded as diplomatic means of resolving
disputes — arbitration, is a legally binding way of resolving disputes whereby a particular conflict is brought before
an independent third party whom then renders a binding resolution either in favour or against a state party.
Arbitration is characterised by the fact that is usually involves the creation of an ad hoc tribunal which is designed
specifically to deal with a particular dispute; it is thereby the case that arbitration is created inter partes between
states, and disputes are not submitted to a permanent body such as the International Court of Justice. Examples of
such arbitration committees/commissions include, inter alia, the American-Mexican Claims Commission and the
system of arbitration set up under the auspices of Article V of the Jay Treaty (1795). See further, C. Brower II,
‘Arbitration’, in R. Wolfrum (ed.). the Max Planck Encyclopedia of Public International Law (Online Edition,
2006).
27 Here, international litigation refers to the process of referring a dispute to a permanent international court or
tribunal. The primary example of this (in the context of diplomatic protection) is the International Court of Justice.
°8 K, Parlett, ‘Diplomatic Protection and the International Court of Justice’, in C. Tams, J. Sloan, The Development
of International Law by the International Court of Justice (Oxford: OUP 2013).
?° Draft Articles on Diplomatic Protection with Commentaries (2006), Official Records of the General Assembly,
Sixty-first Session, Supplement No. 10 (A/61/10). The Draft Articles on Diplomatic Protection were adopted in
May 2006 and reflect the international law in the area of diplomatic protection. For a fuller history the rationale
behind these articles and the adoption process, refer to, A. Pellet, ‘The Second Death of Euripide Mavrommatis?
6
There are three cumulative conditions which must be fulfilled before a state will consider
exercising diplomatic protection. Firstly, there must be an injury to an individual; secondly, the
individual must possess the nationality of the state who is exercising diplomatic protection*”
and thirdly, the individual must have exhausted all local remedies before seeking diplomatic
protection.?!
While it is the case that these conditions must be fulfilled, it should also be remembered that
exercising diplomatic protection is inherently discretional, and therefore a state may still decide
not to exercise diplomatic protection even if these conditions are fulfilled. This is defensible on
the basis that in choosing to exercise diplomatic protection a state will naturally engage some
political considerations: ** for example, exercising diplomatic protection may cause a
diplomatic rift between two countries and therefore many countries will eschew using
diplomatic protection to ensure diplomatic comity between nations. As correctly explained by
Borchard:
in the first place, reparation is demanded only for such injuries as the state in its
discretion deems a justification for diplomatic protection. Factors which enter
into consideration in determining the state’s interposition are the seriousness of
the offence, the indignity to the nation, and the political expediency of
regarding the private injury as a public wrong to be repaired by national action
— in short, the interests of the people as a whole against those of the citizen
receive first consideration before state action is initiated.*?
3. The Protection of Nationals Abroad Through Human Rights?
The previous sections have shown how diplomatic protection has developed, and how it is
exercised. It is clear, however, that much of the development of diplomatic protection took
place in the 19" Century, at a time when ideas and theories of human rights were not as
advanced as they are now. At that time, the individual had very little rights under international
Notes on the International Law Commission’s Draft Articles on Diplomatic Protection’, LPICT (2008), 33-58; M.
Zieck, ‘Codification on the Law of Diplomatic Protection: The First Eight Draft Articles’, LJIL (2001), 209-232.
3° Panevezys-Saldutiskis Railway (Estonia v Lithuania) [1939] PCIJ (Ser A/B), No 76, 16 “In taking up the case of
one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a State is
in realty asserting its own rights, 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 protection”. See also the famous ‘Nottebohm’ case: Nottebohm Case
(Liechtenstein v Guatemala), Second Phase Judgment, ICJ Reports 1955. In terms of the Draft Articles on
Diplomatic Protection, the nationality rules pertaining to the exercise of diplomatic protection are contained in
Articles 4-8 of the Draft Articles on Diplomatic Protection.
3! This condition does not need to be fulfilled where it would be futile to exhaust local remedies for example due
to systemic corruption in the judiciary or where there is no justice to exhaust. See further, Malcolm Shaw,
International Law (Cambridge: CUP 2008), 820; Greece v United Kingdom (Ambatielos) (1956) 12 RIAA 83,
119, “[t]he ineffectiveness of local remedies may result clearly from the municipal law itself. That is the case, for
example, when a Court of Appeal is not competent to reconsider the judgment given by a Court of first instance of
matters of fact, and when, failing such reconsideration, no redress can be obtained. In such as case there is no
doubt that local remedies are ineffective”. This has been codified in Article 14 of the Draft Articles on Diplomatic
Protection, exceptions to the ‘local remedies rule’ are contained in Article 15 of the Draft Articles on Diplomatic
Protection.
3? E. Borchard, Diplomatic Protection of Nationals Abroad (New York: The Banks Law Publishing Company
1915), 351 et seq.
33 ibid.
law, if any, and therefore diplomatic protection was perhaps the only means of extracting any
redress for any internationally wrongful acts and subsequent injury that occurred when
nationals were abroad.*4
A lot has changed since the 19" century, and since the end of World War II, the existence and
recognition of human rights has the potential to alter the paradigm of diplomatic protection and
consequently the protection of nationals abroad. It has often been argued that since individuals
can now rely on human rights to espouse their claims, there is no need for the state of
nationality to intervene. Almost all states are party to some international or regional human
rights convention, whether this is the International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social and Cultural Rights (CESCR), the
European Convention on Human Rights (ECHR), the Inter-American Convention on Human
Rights ([ACHR) or the African Charter on Human and Peoples’ Rights. Considering the
increased attention paid to human rights, the argument goes that diplomatic protection is now
somewhat otiose as a means of protecting nationals when they are abroad. What reasons
therefore, are put forth supporting the claim that human rights have replaced the need for
diplomatic protection? And are these claims correct?
Firstly, the requirement of nationality is not seen as a prerequisite for enforcing human rights,
which in turn gives it an added advantage over resorting to diplomatic protection. According to
human rights theories, the possession and enforcement of human rights is not contingent on
possessing one particular nationality, or in some cases any nationality (i.e., for the protection of
stateless persons), but rather are possessed and enforced simply by being a human being.*
Human rights are often said to be ‘universal’, and frequently reinforce the idea of ‘equality’.
What is meant by this is that human rights apply to every person, regardless of race, gender,
religion or nationality.
Taking the ECHR as an example, based on the case law of the European Court of Human
Rights (ECtHR), it has been affirmed that the ECHR is not so concerned with the issue of
nationality when it comes to the protection afforded by the ECHR. In the case of Ireland v. The
United Kingdom” it was held that:
[uJnlike international treaties of the classic kind, the convention comprises
more than mere reciprocal arrangements between contracting states. It creates,
over and above a network of mutual, bilateral undertakings, objective
obligations, which in the words of the Preamble, benefit from a “collective
enforcement”.>”
34 J. Dugard, First Report on Diplomatic Protection by the Special Rapporteur, 52nd session of the ILC (2000),
212.
35. R. Smith, Textbook of International Human Rights, 5-8.
3° The Republic of Ireland v The United Kingdom (1978) EHRR 25.
37 ibid., para. 239. Similar observations can be made in respect of the International Court of Justice’s reservations
to the Genocide Convention, whereby it pronounced the idea that a Convention, such as the Genocide Convention,
goes beyond states and encompasses the protection of all individuals, regardless of their nationality: ‘The
[Genocide] convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed
difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one
hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most
elementary principles of morality’. For the full opinion, see ICJ Advisory Opinion: Reservations to the Genocide
Convention, 1951 ICJ 15.
8
The lack of importance attached to nationality in the human rights framework, it would seem as
if utilising human rights instead of invoking diplomatic protection would be more attractive.
Based on this reasoning, every person is entitled to human rights, and the universal character of
human rights secure that they are applicable regardless of time and place. Therefore, the
requirement of nationality which is required before a state can exercise diplomatic protection
does not feature in the human rights discourse and therefore enforcing one’s human rights may
be seen as a more attractive means of ascertaining protection when abroad, rather than relying
on an inherently discretional and nationality-centric procedure like diplomatic protection.**®
This development, coupled with the fact that there has been a proliferation in international
human rights courts and tribunals, may suggest that diplomatic protection has now been made
redundant.*?
Another argument which supports the view that human rights law has replaced the need for
diplomatic protection is that the individual now has ‘standing’ in international law.
International law, particularly public international law, it is argued, is applicable only to states
and therefore individuals do not have any rights under public international law.*° Some scholars
argue, however, that this is no longer the case in light of developments in international human
rights law, since individuals can have recourse to international human rights law to enforce
their rights when they are abroad, and therefore not have to rely on diplomatic protection to
protect their rights and ascertain remedies.*! However, this argument has been criticised by
John Dugard, the UN’s Special Rapporteur for diplomatic protection, who argues that the
individual is merely a ‘participant’ in international law, and that even if individuals can rely on
international human rights law to pursue their claims, difficulties often arise at the remedial
stage which make this particular option unattractive.”
However, this particular narrative should be carefully analysed, and it should be asked whether
this is truly the case. The following sections will highlight the shortcomings in human rights
systems and argue that there is still a need for diplomatic protection, and therefore the claims
that diplomatic protection is now obsolete will be rejected. The reasons for this will be set out
38 However, it should be noted that the Draft Articles on Diplomatic Protection make explicit reference to the
diplomatic protection of non-nationals, that is for refugees and stateless persons. See to this effect, Article 8 of the
Draft Articles on Diplomatic Protection. This provision reflects international law’s attitude to the treatment of
stateless persons, in accordance with the Convention on the Reduction of Statelessness 1961, United Nations
Treaty Series, vol. 989, p. 678.
»° Vasileios Pergantis, ‘Towards a “Humanization” of Diplomatic Protection’, 66 ZadérV (2006), 352 — “[t]he
robust development of human rights law, which confers directly rights to the individual, the subsequent
proliferation of dispute settkement mechanisms granting an eminent role to the injured individual and the
multiplication of international judicial fora directly accessible by him/her, have called into question the usefulness
and adequacy of diplomatic protection in the framework of the (human rights) protection of nationals abroad,
precisely because of its State-centred character”.
40 See, for example, G. Schwarzenberger, International Law as Applied by International Courts and Tribunals
(London: Stevens & Sons 1957), 139-146. This traditional view may now be regarded as somewhat of an
anachronism. Dugard suggests that this conceptualisation is somewhat misleading. In his First Report on
Diplomatic Protection, Dugard argues that debates surrounding whether the individual is a subject or an object of
international law are rather otiose. Dugard insists that it may be better to conceptualise the individual as a
participant in the international legal order. This contemporary polemic is also well-documented by Rosalyn
Higgins. See, R. Higgins, Problems and Process: International Law and How We Use It (Oxford: OUP 1994), 45.
411. Condorelli, ‘La protection diplomatique et l’évolution de son omaine d’application’, RDI (2003), 5-26.
# J. Dugard, First Report on Diplomatic Protection, 213.
9
in the following sections, and will focus on human rights’ weaknesses in enforcement and
remedies respectively.
4. Human Rights Law and Diplomatic Protection: Enforcement and Remedial
Perspectives
4.1 Weaknesses in the enforcement of human rights law
One of the main reasons why claims that diplomatic protection is obsolete are exaggerated is
because human rights are often portrayed as being the ‘silver bullet’ for reducing and
eliminating violations of human rights. While it cannot be denied that that human rights pursue
noble goals, and that every society should endeavour to uphold the principles that human rights
espouse (right to life, freedom from torture, free speech etc.), it is the case that in many
international and regional human rights regimes, the human rights form mere aspirational and
interpretative principles which states should follow; however, these human rights instruments
are not necessarily accompanied with the necessary enforcement machinery, which therefore
hinders their enforcement in practice. For nationals abroad, this presents a very real problem.
One of the very real problems in this area is the lack of any binding judicial mechanisms to
enforce the human rights that individuals receive from international human rights treaties, at
least outside of Europe. Even in the sophisticated human rights frameworks which do have
binding rulings — such as the ECHR and the corresponding enforcement by the European Court
of Human Rights (ECtHR) — it is the case that, however favourable a ruling an applicant may
obtain, it must be recognised and acknowledged by the respondent state, which may ultimately
decide not to act.*? Simply put, even the finding of a human rights violations by a specialised
court or tribunal does not necessarily mean that change will take place as a result.
In any case, many human rights systems rely on self-regulation and the use of ‘naming and
shaming’ reports, and hope that by attributing a violation of human rights to a state, it will
coerce states into changing their behaviour, but such measures are not endowed with any
binding force. For example, under the African Charter of Human Rights, the African
Commission on Human Rights is tasked with reporting and issuing non-binding resolutions on
human rights violations, in addition to the African Commission on Human Rights, an African
Court of Human Rights was established in order to deal with the interpretation and alleged
violations of the African Charter.“ However, in a report by the European Parliament it was
noted that there were several structural difficulties in the reporting mechanism, in that certain
states who are party to the Convention were not submitting the necessary documents to the
Commission.*° This may explain why diplomatic protection has been favoured in recent years
4.R. Smith, Textbook on International Human Rights, 146-147; 163.
44 Article 45 of the African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M 58
(1982).
4 For the full report, see European Parliament, ‘Human Rights Protection Mechanisms in Africa: Strong Potential,
Weak Capacity’ (Directorate General for External Policies, February 2013)
accessed 12 April 2017, 5-6.
10
in Africa, *° as recent cases before the International Court of Justice demonstrate, instead of
reliance on the human rights infrastructure. While the use of ‘naming and shaming’ reports can
be defensible on the basis that it constitutes a less interfering process, ultimately the lack of any
binding measures means that reliance on human rights instead of diplomatic protection is a
somewhat unattractive process which may not be effective for the protection of nationals
abroad.
Temporal limitations must also be taken into account. It is often the case that international
human rights tribunals are inundated with applications for alleged human rights violations. This
is perhaps most salient in relation to the ECtHR, which is (perhaps infamously) known for its
backlog of cases.‘ It is often stated that ‘justice delayed is justice denied’ and this adage is
particularly appropriate as the ECtHR struggles to clear its ever-increasing case load, with ill-
effects for individuals currently petitioning the court,** which in turn means that well-founded
allegation of human rights abuses may be going undiscovered. Again, this further strengthens
the argument that human rights law has not replaced the institution of diplomatic protection,
but rather acts as a complementary means of ensuring the protection of nationals abroad.
5. Remedial Perspectives: Co-Existence between Human _ Rights and Diplomatic
Protection?
Even if an individual successfully convinces a human rights court that their human rights have
been violated, this may be regarded as somewhat of a Pyrrhic victory considering the
weaknesses in remedies that are redolent of human rights litigation. In many legal systems, it is
generally accepted that where there is a right, there is a remedy — ubi jus ibi remedium. And
that the purpose of any remedy, where possible, is to try and restore that individual to the
position they were in before the violation took place — restitution in integrum.” As Bekker
points out however, violations of ‘private’ wrongs and ‘public’ wrongs differ, because the state
is the entity which is constitutionally tasked with upholding human rights, and therefore a
4
© See to this effect: Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democractic Republic of
Congo), Case 103, Judgment, 30 November 2010. And commentary: S. Ghandi, ‘Human Rights and the
International Court of Justice: The Ahmadou Sadio Diallo Case’, 11 HRLR (2011), 527-555.
47 Tn 2011, the ECtHR had a backlog of 160,000 cases (September 2011).
48M. Dembour, ‘Migrants avoidance of the European Court of Human Rights concerns us all’ (Strasbourg
Observers, 10 February 2016) accessed 28 March 2017.
4 The idea of restitution in integrum has been discussed before various international tribunals. The duty to ensure
reparation was famously discussed in Chorzéw Factory (Jurisdiction), P.C.I.J ser. A, No. 9 (1927). Here, the PCIJ
stated at para. 29, ‘it is a principle of international law that the breach of an engagement involves an obligation to
make reparation in an adequate form’ (emphasis added). The PCIJ further continued this, in Chorzéw Factory
(Indemnity)(Merits), P.C.I.J ser. A, No. 17 (1928), para. 124, by stating, ‘reparation must, as far as possible, wipe-
out all the consequences of the illegal act and re-establish the situation which would, in all possibility, have existed
if that act had not been committed’ (emphasis added). For a more detailed discussion on the issue of reparation in
international law, with further references, please consult: R. Wallace, O. Martin-Ortega, International Law
(London: Sweet & Maxwell 2013), 208-210.
11
violation of a human right norm not only affects the individual, but the community as a
whole.*°
In terms of remedies, human rights courts can be said to offer two types of remedies when there
is a finding of a human rights violation: monetary and non-monetary remedies. The monetary
remedies are rather straightforward in that they entail the granting of compensation or
reparation to an individual or group of individuals. The non-monetary remedies may be
remedies such as declaratory relief, rehabilitation, guarantee of non-repetition etc.°! At this
point, the use of non-monetary remedies may be having little effect, but this is not always the
case. It is not always easy to put an economic tag on the suffering of the individual and
therefore non-monetary remedies may be used to ensure that such abuses of human rights do
not take place again, and therefore can be regarded as ‘victim-centred’ as they allow
individuals needs to be catered for.°” Using the example of the Inter-American Convention on
Human Rights, which frequently resorts to the use of non-monetary remedies, Antokowiak
identifies that the use of such remedies is beneficial as it allows for experimentation and gives
states time to determine how they will avoid future abuses taking place.°* He further identifies
that victims have a preferences for these kinds of remedies, and therefore receiving an apology
and a promise that such a violation will never take place again fulfils a cathartic role which
should not be underestimated.**
Returning to the link with diplomatic protection, it is the case that human rights may have the
upper hand concerning the remedies that are available for individuals who successfully prove
that their human rights have been violated. Regarding diplomatic protection, however, it is
difficult to see what remedies have been afforded to individuals who have been offered
diplomatic protection, since there is no accurate record of what kind of relief individuals have
been granted, as diplomatic protection claims and remedies are not recorded in the same way as
the judgment of a human rights court or tribunal. It is the case, however, that the remedial
options that are available in diplomatic protection may influence the way in which states
exercise diplomatic protection and as a result states may seek non-monetary remedies to redress
the nationals that have been injured as a result of an internationally wrongful act.* Therefore,
instead of responding to claims that human rights have replaced the need for diplomatic
protection, it may be more appropriate to comment on the way in which human rights law and
practice can influence diplomatic protection, and vice -versa.
In addition to this, there is also a debate surrounding who benefits from diplomatic protection
when it is exercised: is it the individual or is it the state?>° In this regard, it can be questioned
°° G. Bekker, ‘The African Commission on Human and Peoples’ Rights and Remedies for Human Rights
Violations’, 13 HRLR (2013), 502.
5! For more detailed analysis on the remedies available for human rights violations, refer to: D. Shelton, Remedies
in International Human Rights Law (Oxford: OUP 2005), 269-289.
>? T, Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights
and Beyond’, 46 CJTL (2008), 387.
3 ibid.
4 ibid., 388.
55 C, Amerasinghe, Diplomatic Protection, 330-332.
5° The existence of human rights can be seen in this debate. As mentioned, it is unclear whether, when exercising
diplomatic protection, a state is acting in its own right or for the interest of the individual. However, in Dugard’s
2006 report on diplomatic protection, he notes the distinction between primary and secondary rules of international
12
whether the state is acting in the interest of the victims when it is exercising diplomatic
protection, or whether it is acting in its own, that is national, interest. This is corroborated by
the fact, as has been mentioned before, that the state is always competent to decide when it
should exercise diplomatic protection, and no individual right to diplomatic protection can be
inferred from international law. Some states have included provisions in their constitutions to
the effect that they will protect nationals when they are abroad.>’ This in turn has raised
questions regarding the justiciability of diplomatic protection before national courts. So far,
certain jurisdictions have dealt with claims from individuals who have averred that the state
should be obliged to exercise diplomatic protection, and examples from these jurisdictions
show that these claims have been framed in human rights language.** And furthermore, none of
these claims have been successful, from which it can be inferred that when exercising
diplomatic protection, the state may be acting in its own interest, and not in the interests of its
nationals.
To give one example from the United Kingdom, the case of Abbasi>’ provides a good and
interesting example of the fact that states may be acting in their own interests, which in turn
means that diplomatic protection may not be as effective at protecting nationals when they are
abroad. The facts of the case concerned Mr. Abbasi, a British citizen, who was captured by US
forces in Afghanistan and transferred to Guantanamo Bay in Cuba, where he was held
indefinitely without charge and without access to legal counsel or a court or tribunal. The
violation of Mr Abbasi’s human rights thus stemmed from his uncertain legal situation, as there
was no evidence of Mr. Abbasi being mistreated, conditions in the camp being generally
regarded as humane.” The proceedings in the case were brought by Mr. Abbasi’s mother, who
claimed that this treatment was contrary to the right to not be arbitrarily detained as Mr.
Abbasi’s legal situation was uncertain, and he was not given the opportunity to challenge the
grounds for his detention. Considering this, it was argued before the English Court of Appeal
law. In this regard, the primary rules are those such as the right not to be tortured or the right to have one’s
property respected, it is only when these primary rules are violated that a state is able to execute diplomatic
protection. In respect of the primary rules, Dugard observes that these are certainly the rights of individuals and
not of states, and since the diplomatic protection claim is contingent on some form of injury occurring to the
individual, it follows therefore that when exercising diplomatic protection, states are in fact acting in the interests
of the individual and not in their own state interest — thereby leading to a complementary relationship between
human rights and diplomatic protection. See further, J. Dugard, ‘Seventh Report on Diplomatic Protection’,
http://legal.un.org/ilc/documentation/english/a_cn4_567.pdf.
57 See, inter alia, Article 14 of the Constitution of Portugal (Constituigdo da Republica Portugesa), Article 42 of
the Constitution of Spain (Constitucién Espanola); Article 35 of the Constitution of Italy (Costituziona della
Repubblica Italiana); Article 5 of the Constitution of Slovenia (Ustava Republike Slovenije); Article 36 of the
Constitution of Poland (Konstytucja Trzeciego Maja); Article | of the Constitution of Mexico (Constitucién
Politica de los Estados Unidos Mexicanos); Article 20A of the Constitution of Malta (Kostituzzjoni Ta’ Malta);
Article 7a of the Constitution of Slovakia (Ustava Slovenskej republicy); Article 13 of the Constitution of
Lithuania (Lietuvos Respublikos Konstitucija); Article 98 of the Constitution of Latvia (Satversme); Article 10 of
the Constitution of Croatia (Ustav Republike Hrvatske); Article 7 of the Constitution of Roumania (Constitutia
Romdaniei) and Article 25 of the Constitution of Bulgaria (Koncmumyyua na Penyosuxa Boneapua).
58 Exigencies of space mean that a full discussion of case law from other jurisdiction cannot be undertaken. See for
example, in South Africa, Samuel Kaunda and Others v The President of the Republic of South Africa and Others,
[2004] ZACC 5; Josias van Zyl and Others v The Government of the Republic of South Africa and Others [2007]
ZASCA 109. For Australia, see Hicks v Ruddock, [2007] F.C.A. 299.
» R(Abbasi) v Secretary of State for Foreign Affairs, [2002] EWCA Civ. 1598.
% ibid., para. 5.
13
that the British Government was obliged to intervene in this situation to protect one if its
nationals who was being subject to an internationally wrongful act.*!
The Court of Appeal, however, despite being sympathetic to Mr. Abbasi’s situation, and the
fact that the treatment he was receiving was blatantly contrary to established human rights
law,” ultimately held that this issue was not justiciable and therefore the English courts were
not able to offer any remedy in this respect. The Court of Appeal ultimately held that
. [i]t is clear that there can be no direct remedy in this court. The United
States Government is not before the court, and no order of this court would
be binding upon it. Conversely, the United Kingdom Government, which,
through the Secretaries of State is the respondent to these proceedings, has no
direct responsibility for the detention. Nor is it suggested that it has any
enforceable right, or even standing, before any domestic or international
tribunal to represent the rights of the applicant, or compel access to a court. %
What the Abbasi case shows is, notwithstanding the lack of individual relief to Mr. Abbasi, the
positive influence that human rights can have on diplomatic protection. As mentioned above,
similar developments can be seen in other jurisdictions, whereby national courts have analysed
whether human rights law can provide for a right to diplomatic protection, which has hitherto
not been recognised by the international community. While none of these claims have yet, been
successful, it is not inconceivable that such a claim will be upheld in the future. It is a case that
national courts have begun to recognise and attach importance to human rights norms, thereby
identifying the role that they can play in this ambit. What human rights has done, therefore, is
to alter the traditional paradigm of diplomatic protection which may in the future limit the
state’s scope of discretion when choosing whether to exercise diplomatic protection.® Whereas
courts would have previously declined jurisdiction with regards to these types of cases, what
we are able to witness in more recent times is that courts are now willing to entertain these
claims and to review them on their merits. It is therefore becoming clear that human rights are
altering the paradigm of diplomatic protection, and one should therefore keep a close eye on
future developments in this regard.
As this article has pointed out, the development of diplomatic protection is rooted in the fact
that the state has the exclusive right to determine when it will exercise diplomatic protection,
and therefore has full discretion to determine when it will intervene to protect its nationals. As
it rightly pointed out by Vermeer-Kiinzli,
[i]t is submitted that the Abbasi decision clearly indicated that the right to
diplomatic protection is not solely and exclusively conferred on the state and
that the exercise of diplomatic protection is not at the absolute discretion of
government officials but that it is subject to human rights standards and rules of
legal certainty.©
6! The breach of international law in the Abbasi case was the right not to be arbitrarily detained, which is a so-
called jus cogens norm and this argument was put forward by the lawyers in the Abbasi case. See, Ibid., para. 28.
© Tbid., para. 64 “(...) we do not find it possible to approach this claim for judicial review other than on the basis
that in apparent contravention of fundamental principles recognised by both jurisdictions and international law,
Mr Abbasi is at present arbitrarily detained in a legal “black hole’”.
®3 Tbid., para. 67.
4 Annemarieke Vermeer-Kiinzli, ‘Restricting Discretion: Judicial Review of Diplomatic Protection’ (2006) 75
NJIL, 280-281, 285.
% ibid., 295-296.
14
In addition to this, Amerasinghe also notes that the use of ‘extraordinary’ remedies that have
been seen in human rights litigation is something which could inform the law of diplomatic
protection, and therefore he posits that there are lessons that diplomatic protection can learn
from human rights law practice and litigation.©
This all points towards the conclusion that it is not proper to speak of human rights replacing
diplomatic protection, but rather that we should focus on ways in which human rights and
diplomatic protection can co-exist to the benefit of the protection of nationals abroad more
holistically. This is arguably visible in the debates surrounding whether international
organisations should be able to exercise diplomatic protection for flagrant human rights abuses
— it is in this context that a combination of human rights and diplomatic protection can be seen.
The treatment of the Rohingya in Myanmar provides a good example of this debate. It is the
case that the Rohingya constitute an ethnic Muslim population, primarily located in Myanmar,
but have never been recognised as nationals of Myanmar due to the enactment of the Burmese
nationality legislation, leaving them vulnerable to widespread mistreatment and
discrimination.®’ As they are not nationals, they cannot ask their state of nationality to exercise
diplomatic protection on their behalf for the mistreatment they have suffered, and it cannot be
denied that the Rohingya have been subject to egregious violations of their human rights. Some
scholars have therefore argued that international organisations, like the UN, should be able to
step in and provide diplomatic protection for the Rohingya.® This is certainly something which
challenges the traditional paradigm of diplomatic protection, but it is easy to see how this
kind of solution incorporates both human rights and diplomatic protection dimensions, and
could be something that becomes a recurring practice in the future.
6. Concluding Observations
It cannot be denied that the proliferation of human rights, which has its genesis in the post-
WWII political climate, has affected the way in which diplomatic protection operates. This
article set out to determine whether human rights has replaced the need for diplomatic
protection, or whether these claims are somewhat exaggerated. To do this, this article looked at
the perceived enforcement and remedial weaknesses within selected human rights regime, and
at this point it is necessary to determine whether this is the case.
Diplomatic protection has existed in international law for centuries and is deeply entrenched in
the law of state responsibility. It is characterised by the fact that it is a remedy which can only
6 C, Amerasinghe, Diplomatic Protection, 332.
67 The reports recording the treatment of the Rohingya are voluminous, see inter alia, United Nations Human
Rights Office of the High Commissioner, ‘Flash Report: Interviews with Rohingyas fleeing from Myanmar since 9
October 2016’ (OHCHR, 3 February 2017)
accessed 26 April 2017.
6 F, Ahmed, ‘Diplomatic Protection for the stateless Rohingya’ (Asia & The Pacific Policy Society, 22 March
2017) accessed 26 April 2017.
© The draft articles on diplomatic protection are at present only applicable to States. However, Article 8(1)
concerns the diplomatic protection of stateless persons and therefore an amendment to this clause, as advocated by
Ahmed, could assimilate the UN to a state thereby giving it the opportunity to exercise diplomatic protection.
However, such as move is likely to be politically unpopular and unrealistic.
15
be exercised by the state and that individuals do not have a right to diplomatic protection. It is
also regarded as a subsidiary remedy for the protection of nationals abroad — as individuals
must fulfil the three cumulative criteria before they can ask their state of nationality to offer
them protection. Individuals will therefore always be able to request diplomatic protection from
their state of nationality, however, only those which have fulfilled the three aforementioned
criteria are likely to have their claim taken up by their state of nationality.” However, doubt
has been cast over the need for diplomatic protection in recent years, precisely because human
rights law offers protection to individuals abroad, and is more effective at doing so.
However, these claims are somewhat exaggerated, and it cannot be denied that both human
rights and diplomatic protection have their weaknesses. While the proliferation of human rights
law must be seen as a positive development, there are certain weaknesses in human rights
enforcement and remedies which mean that they do not fully eclipse the need for diplomatic
protection. For example, as this article has shown, structural deficiencies in human rights
regimes, and burgeoning case-loads mean that justice can be denied to those who have suffered
human rights violations, which means only a small percentage of those who have suffered
human rights violations actually receive any remedies for the violations. In addition, at the
remedial stage, the use of non-monetary remedies may be seen somewhat as a Pyrrhic victory,
although it can also be argued that there is some merit in the use of non-monetary remedies.
This is not to say that diplomatic protection is flawless. It too has its faults, namely rooted in
the fact that it is an inherently discretionary remedy, and the state may not exercise diplomatic
protection for political reasons — which again means that human rights violations go unnoticed
or without any attention, which is clearly a regrettable situation.
Instead, therefore, of focusing on whether human rights have replaced the need for diplomatic
protection, we should rather focus on the way in which these two institutions can work together
for the benefit of nationals abroad. Perhaps what is required at this juncture is a reminder of the
very reasons why states were keen to enact international human rights law. Following the
atrocities that were witnessed during the Second World War, it was felt that an international
framework was needed to ensure that no state could exculpate itself from liability when the
most basic human freedoms have been violated.’' It stands to reason therefore that any
international human rights regime should seek to ensure that states are held accountable when
an individual’s human rights are violated. However, considering the enforcement and remedial
weaknesses that this article has uncovered, it follows that international human rights regimes
and their concomitant enforcement machinery cannot ensure that every violation of human
rights is made salient. Therefore, it suffices to say that diplomatic protection has not been
rendered otiose through the enactment of international human rights regimes. A combination of
human rights and diplomatic protection can therefore work together to ensure an effective
system that can protect nationals abroad, which in turn is suited for the 21*' century, and the
example of the Rohingya in Myanmar serves a good example of how diplomatic protection and
79 See, Section 2.2.2. supra.
™ For a brief overview of the reasons why international rules were enacted, see P. Sands, Lawless World (London:
Penguin Publishers 2006), Chapter 1 — ‘International Law: A Short and Recent history’.
16
human rights can co-exist.’”* There is no reason to suggest why human rights and diplomatic
protection cannot co-exist and protect the rights of nationals abroad.
® See Section 4 supra.
1g