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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 the other State. Diplomatic protection, which has been confirmed in different cases of the Permanent Court of International Justice and the International Court of Justice, is a discretionary right of a State and may take any form that is not prohibited by international law. The Permanent Court of International Justice, sometimes called the World Court, was the international court of the League of Nations, established in 1922 See also International Commission of Jurists The International Court of Justice (known colloquially as the World Court or ICJ; Cour 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 has adopted the Draft Articles on Diplomatic Protection, regulating the entitlement and the exercise of Diplomatic Protection. The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and


Contents

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 in his opus "The Law of Nations": "Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen. Emer (Emerich or Emmerich de Vattel ( April 25, 1714 - December 28, 1767) was a Swiss Philosopher, Diplomat, and legal " 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 during the Boxer Rebellion and Venezuela in the early twentieth century). The Boxer Rebellion, or Boxer Movement, was an uprising by members of the Chinese Society of Right and Harmonious Fists against foreign influence As a result, the doctrine of Diplomatic Protection has attracted much criticism, particularly in former colonies. Specifically in Latin America the Calvo Doctrine was devised to avoid the invocation of diplomatic protection by Western nationals. The Calvo Doctrine is a Foreign policy doctrine which holds that Jurisdiction in international Investment disputes lies with the country in which the investment Nevertheless, Diplomatic Protection has been recognised as customary international law by international courts and tribunals as well as scholars. After the Second World War, 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. World War II, or the Second World War, (often abbreviated WWII) was a global military conflict which involved a majority of the world's nations, including

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 a direct injury to his home country and in taking up his case the State is seen as asserting its own rights. This means that 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 judgment in the Nottebohm case). See also International Commission of Jurists The International Court of Justice (known colloquially as the World Court or ICJ; Cour Liechtenstein v Guatemala is the proper name for the 1955 contentious case adjudicated by the International Court of Justice (ICJ


See also

External links

Draft Articles on Diplomatic Protection

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