The Influence of Human Rights on Diplomatic Protection: Reviving an Old Instrument of Public International Law

© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_5

5. The Influence of Human Rights on Diplomatic Protection: Reviving an Old Instrument of Public International Law

Sebastian tho Pesch 

Bucerius Law School, Hamburg, Germany



Sebastian tho Pesch

This article is based on a presentation held at the Trinational Georgian-German-French Research Workshop “The Influence of Human Rights on International Law,” 5–7 September 2012. The general style of an oral presentation has been kept.

5.1 Introduction

Public international law has changed under the influence of human rights. This has also affected the law of diplomatic protection, an instrument that is similar to the notion of human rights. This chapter will examine how the rise of individual rights has affected the law of diplomatic protection and how this development has partly continued in municipal law. A special emphasis is put on the discretion of the state when exercising diplomatic protection over its citizens. Furthermore, by comparing the similarities of the two regimes, it is suggested to use diplomatic protection as a means of enforcing human rights.

The concept of protecting individuals against governmental authority is no invention of the post-WWII societies. Something similar existed long before the current human rights system: the law of diplomatic protection. Nowadays, human rights seem to have taken the place of diplomatic protection when it comes to guaranteeing rights of an individual. But is this really true? I will explore the influence of human rights on this old instrument of public international law. And since the current human rights system lacks efficient implementation mechanisms and diplomatic protection has a limited scope of application, I also want to propose ways to make both instruments more efficient.

5.2 Diplomatic Protection and Human Rights: Their Current Status in Public International Law

5.2.1 Diplomatic Protection

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 Internationally Wrongful Act

Diplomatic protection is a great way of enforcing rights through a set procedure. However, the instrument itself does not guarantee any substantial rights. For it to work, there must be some international rights in the first place. Once a violation has occurred, diplomatic protection comes in and takes over. An internationally wrongful act requires proof that the state has violated a primary rule of international law relating to the treatment of aliens, the so-called minimum standard.12 Injured Person Must Have the Nationality of the Protecting State

Generally, the injured person must have the nationality of the protecting State. This is a necessary connection because of the fiction that the injury to the individual is an injury to the State. In the famous Nottebohm case, the ICJ decided that more than just the formal status of being a national is necessary for a State to exercise diplomatic protection: the court asked for a “genuine connection” between the State and the individual for the State to claim that the injury is his own.13 This genuine connection was not codified in the Draft Articles of 2006 since according to the ILC “the Court did not intend to expound a general rule applicable to all States.”14 Exhaustion of Local Remedies

This requirement is well known from other human rights mechanisms, such as the European Convention on Human Rights (Art. 35 para. 1 ECHR) and the International Covenant on Civil and Political Rights (Art. 2 of the Optional Protocol to the International Covenant on Civil and Political Rights15). Exercise of Diplomatic Protection

Today, the exercise of diplomatic protection for the benefit of a national remains at the discretion of the state.16 This discretion can cause problems for the individual if the home state is unwilling or unable to provide for his protection. However, Art. 19 of the Draft Articles urges states to grant protection despite the discretionary nature.

5.2.2 Human Rights

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.

5.3 Diplomatic Protection and Human Rights: Exclusive or Complementary?

Before examining how human rights and diplomatic protection could benefit from each other, one needs to take a closer look at the relationship between those two instruments. At first sight they seem very similar: both require the violation of an individual’s rights, therefore making the purpose of both instruments the protection of the individual. This understanding would omit that for the purpose of diplomatic protection the violation is seen as a violation of the state’s right; diplomatic protection has consequently led to a pro forma protection of the state’s rights. Long before human rights entered the stage of public international law, this fiction was necessary to provide some protection for the individual. Nowadays, it is undisputed that human rights give the individual rights on the international plane, which makes him a subject of international law. One can therefore legitimately ask: do we still need diplomatic protection?

Considering the emergence of human rights, Garcia Amador proposed to end the fiction of diplomatic protection whenever the individual is granted comparable rights on the international plane as early as 1958.18 Even though a strong influence of human rights on general international law cannot be ignored,19 this notion ignores that the law of diplomatic protection and the law of human rights remain two distinctive parts of public international law. Their biggest difference is one of personal scope: diplomatic protection only applies to the rights of nationals abroad, whereas human rights apply to every individual.20

As to their procedural embedding, diplomatic protection has a huge advantage: because of the fiction that the state suffers an injury, the violation of an individual right turns into a dispute between two states. Consequently, the ICJ has jurisdiction in such a case,21 something that would not be possible with the direct participation on an individual.22 The jurisdiction of the ICJ is widely recognized, which makes it an effective way of pursuing justice.

Some human rights instruments, like the 1991 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families23 in Art. 23 and the 1985 United Nations General Assembly Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live24 in Art. 10, confirm the understanding that the existence of individual rights does not oust the possibility to turn to the home state for diplomatic protection.25

5.4 The Influence of Human Rights on Diplomatic Protection

The biggest problems of diplomatic protection today are its limited personal scope, the discretionary exercise, and the uncertainty surrounding the substance of protected rights. How the influence of human rights has spurred the evolution of these features will now be addressed in detail.

5.4.1 Limited Scope of Diplomatic Protection

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.

5.4.2 The Discretion of the Home State

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. International Duty to Exercise Diplomatic Protection

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