The concept of diplomatic protection dates back to the nineteenth century, when imperialist States were looking for a way to protect their citizens engaged in commercial activities in developing countries.¹ Because individuals were not regarded as subjects of public international law, the individual could not demand reparation on the international plane.² This was only possible in the national legal framework. In order to establish a legal title on the international level, the “right” to demand reparation was transferred to the citizen’s State. Over time, safeguards such as the genuine link and the local remedies rule were implemented in order to inhibit abuse.³ Today, diplomatic protection describes a procedure by which a State can demand reparation for an injury suffered by one of its nationals caused by an internationally wrongful act committed by another State.⁴

The central idea behind diplomatic protection is that the State can demand reparation instead of its citizen, because the individual was inhibited from doing so by the constraints of public international law. So one could think that diplomatic protection is just a procedure to secure the indemnification of an individual by enforcing his rights through the State. However, diplomatic protection has developed to be much more than that. Today, it is regarded as a right of the State. This idea was first formulated by the Swiss diplomat de Vattel in the eighteenth century.⁵ According to him, every injury of a citizen indirectly injures the State, which must provide for the citizen’s protection. This view was later shared by the Permanent Court of International Justice and the International Court of Justice (ICJ).⁶ The law of diplomatic protection was laid down in the Draft Articles on Diplomatic Protection of the International Law Commission (ILC),⁷ which are largely a codification of customary international law.⁸

The fiction that diplomatic protection guards the state’s rights and its exercise is therefore left to political discretion was often criticized.⁹ Some commentators call for a “humanization” of diplomatic protection.¹⁰ Indeed, this fiction can lead to bizarre constellations: a State could, i.e., start diplomatic proceedings against the will of the national. Also, if the protecting state receives compensation from the violating state, there is no duty under international law for it to be passed on to the individual since it is reparation for a violation of the states right.¹¹

There is no lack of human rights treaties. In fact, there is a myriad of treaties, some of general scope, others highly specialized on one topic. What the world lacks is a thorough system of implementation and enforcement. It’s true, some systems like the ECHR with the European Court of Human Rights (ECtHR) are a prime example of how human rights should be implemented. But the ECHR is of regional character, and it took decades and devastating wars for the European nations to realize the necessity of such a system. Furthermore, one should not forget that the actual impact of the court relies solely on the appellative character of its judgements since it has no enforcement instruments of its own.

On the international plane, we have no “Human Rights Court”. Some human rights treaties come with a treaty body that, if the State chooses so, monitors its compliance with the treaty. However, such a treaty body is not compulsory. In most cases, the law governing the treaty body comes in the form of an optional protocol. Again, the ECHR is an exception: the treaty, as amended by protocols 11 and 14, prescribes the compulsory jurisdiction of the ECtHR “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols” (Art. 19 ECHR).

This does not change the general enforcement deficit on the global scale, caused by the lack of self-enforcement of the norms themselves and high enforcement costs for the state.¹⁷ Since no easy solution to this fundamental problem is in sight, one should look for other ways to ensure the observance of those rights. Diplomatic protection could provide a way. But this also raises some questions.

As noted before, a state can exercise diplomatic protection only for its own nationals. It is clear that the instrument should not be used to force another state to care for its citizens (although that might be desirable). But there are people who lack a home state that might protect them on an international level, like stateless persons and refugees. Their status in public international law has dramatically improved over the last decades. The institute of diplomatic protection has adapted to the need of those people. In 1931, the US-Mexican Claims Commission still decided that diplomatic protection cannot be extended over nonnationals, although it recognized that those individuals might be helpless on the international plane because no state could exercise protection.²⁶ Today, the ILC Draft of 2006 has picked up on the recent development: States may also exercise diplomatic protection over stateless persons and recognized refugees who are lawful and habitual residents of the State, Art. 8 Draft Articles. This prerequisite provides for a connection to the exercising state. However, the State may not exercise diplomatic protection over a refugee against his country of origin. This was implemented to prevent abuse.

Even though diplomatic protection is by the very reason of its existence restricted in the scope, it still offers ways to address human rights violations: as soon as an individual’s human rights are harmed abroad, there is the possibility for his home state (or in the case of stateless people or refugees, another state) to address this violation. The problem remains that many states are not willing to go this step. This does not change the fact that it is possible.

The exercise of diplomatic protection remains at the discretion of the home state. However, there are two distinct developments concerning the discretion. First, there have been proposals to improve the situation of the individual on the international plane. The second development takes place in the municipal law: national courts in an increasing number of states deduct a right of the individual to diplomatic protection against the state from national basic rights.