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In international law, diplomatic protection (or diplomatic espousal) is a means for a state to take diplomatic and other action against another state on behalf of its national whose rights and interests have been injured by that state. Diplomatic protection, which has been confirmed in different cases of the
Permanent Court of International Justice The Permanent Court of International Justice, often called the World Court, existed from 1922 to 1946. It was an international court attached to the League of Nations. Created in 1920 (although the idea of an international court was several cen ...
and the
International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
, is a discretionary right of a state and may take any form that is not prohibited by international law. It can include consular action, negotiations with the other state, political and economic pressure, judicial or arbitral proceedings or other forms of peaceful dispute settlement. In 2006, the
International Law Commission The International Law Commission (ILC) is a body of experts responsible for helping develop and codify international law. It is composed of 34 individuals recognized for their expertise and qualifications in international law, who are elected by t ...
adopted the Articles on Diplomatic Protection, regulating the entitlement and the exercise of diplomatic protection.


History

Diplomatic protection traces its roots to the eighteenth century. The idea that a state has a right to protect its subjects who are abroad has been expressed by
Emmerich de Vattel Emer (Emmerich) de Vattel ( 25 April 171428 December 1767) was an international lawyer. He was born in Couvet in the Principality of Neuchâtel (now a canton part of Switzerland but part of Prussia at the time) in 1714 and died in 1767. He was l ...
in his ''
Law of Nations International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
'':
Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen.
Since this protection could take any form whatsoever, the doctrine has often been misused by Western powers as a pretext to intervene in the affairs of less powerful nations, sometimes resorting to the use of force (for example in
China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
during the
Boxer Rebellion The Boxer Rebellion, also known as the Boxer Uprising, the Boxer Insurrection, or the Yihetuan Movement, was an anti-foreign, anti-colonial, and anti-Christian uprising in China between 1899 and 1901, towards the end of the Qing dynasty, by ...
and
Venezuela Venezuela (; ), officially the Bolivarian Republic of Venezuela ( es, link=no, República Bolivariana de Venezuela), is a country on the northern coast of South America, consisting of a continental landmass and many islands and islets in th ...
in the early twentieth century). As a result, the doctrine of diplomatic protection has attracted much criticism, particularly in former colonies. Specifically, in
Latin America Latin America or * french: Amérique Latine, link=no * ht, Amerik Latin, link=no * pt, América Latina, link=no, name=a, sometimes referred to as LatAm is a large cultural region in the Americas where Romance languages — languages derived f ...
, the Calvo Doctrine was devised to avoid the invocation of diplomatic protection by Western nationals. Nevertheless, diplomatic protection has been recognized as customary international law by international courts and tribunals as well as scholars. After the
Second World War World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, with the use of force being outlawed as an instrument of international relations, diplomatic protection usually takes other forms, such as judicial proceedings or economic pressure.


The nature of diplomatic protection

Traditionally, diplomatic protection has been seen as a right of the state, not of the individual that has been wronged under international law. An injury to an alien is considered to be an indirect injury to his home country and in taking up his case the state is seen as asserting its own rights. In its famous Mavrommatis Judgment of 1924, the
Permanent Court of International Justice The Permanent Court of International Justice, often called the World Court, existed from 1922 to 1946. It was an international court attached to the League of Nations. Created in 1920 (although the idea of an international court was several cen ...
summarized this concept as follows:
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, from whom they have been unable to obtain satisfaction through the ordinary channels. 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 rights - its right to ensure, in the person of its subjects, respect for the rules of international law.
Hence, under general international law, a state is in no way obliged to take up its national's case and resort to diplomatic protection if it considers this not to be in its own political or economic interests.


Legal requirements

Customary international law recognises the existence of certain requirements that must be met before a state can validly espouse its national's interest. The two main requirements are exhaustion of local remedies and continuous nationality.


Exhaustion of local remedies

Diplomatic espousal of a national's claims will not be internationally acceptable unless the national in question has given the host state the chance to correct the wrong done to him through its own national remedies. Exhaustion of local remedies usually means that the individual must first pursue his claims against the host state through its national courts up to the highest level before he can ask the state of his nationality to take up those claims and that state can validly do so.


Effective and continuous nationality

The second important requirement is that the individual who has been wronged must maintain the nationality of the espousing state from the moment of injury until at least the presentation of the claim by way of diplomatic espousal. If the nationality of the individual in question changes in the meantime, the state of his former nationality will not be able validly to espouse his claims. The claim by a state on behalf of its national may also be dismissed or declared inadmissible if there is no effective and genuine link between the national concerned and the state that seeks to protect him (see the
International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
judgment in the ''
Nottebohm Nottebohm is a German surname meaning "nut tree". Notable people with the surname include: *Andreas Nottebohm (born 1944), American-German artist *Gustav Nottebohm (1817–1882), German classical pianist, teacher and musical editor *Fernando Notteb ...
'' case).


See also

*
Barcelona Traction Barcelona Traction, Light and Power Company (BTLP) (locally known as in Spanish and in Catalan, "The Canadian") was a Canadian utility company that operated light and power utilities in Catalonia, Spain. It was incorporated on September 12, 19 ...
* Calvo Doctrine


Footnotes


External links


A Brief Primer on International Law
With cases and commentary. Nathaniel Burney, 2007.
Official UN website on International LawOfficial website of the International Court of Justice


by
John Dugard Christopher John Robert Dugard (born 23 August 1936 in Fort Beaufort), known as John Dugard, is a South African professor of international law. His main academic specializations are in Roman-Dutch law, public international law, jurisprudence, hum ...
on the Articles on Diplomatic Protection in th
Historic Archives of the United Nations Audiovisual Library of International Law
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diplomatic protection In international law, diplomatic protection (or diplomatic espousal) is a means for a state to take diplomatic and other action against another state on behalf of its national whose rights and interests have been injured by that state. Diplomatic ...
International relations Nationality