It is clearly envisaged in the ARSIWA that a State whose nationals have suffered damage from the wrongful act of another State may invoke the international responsibility of that State and claim full
130 Available at: https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm. 131 Velasques Rodrigues v Honduras, Compensatory Damages Series C No. 7 para 25; The Mayagna (Sumo) Awas Tingni Community, Series C No. 79 para 163; Las Palmeras Case (Reparation), Series C No. 96 para 37; Schwager, op. cit. (note 59), 428.
30 reparation for that damage.133 This is the very basis of the law of diplomatic protection. As noted above, the law of diplomatic protection (being part of the subject of “treatment of aliens”) has historically been closely related to that of State responsibility, and the ARSIWA evince many similarities with the Draft Articles on Diplomatic Protection (2006) (‘DADP’)134, also formulated by the International Law Commission. Some principles in the former apply also to the latter area of law and thus are not repeated in the latter instrument, particularly the “secondary” rules relating to the consequences of a wrongful act: namely, that a State responsible for injuring a foreign national is legally obliged to cease the wrongful act and to make full reparation for the damage caused.135 The Commentary to the DADP notes the traditional view of diplomatic protection as an exclusive right of the State, based on the idea that an injury to one of its nationals is an injury to the State itself. This idea saw expression in a dictum of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case (1924):
...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, the right to ensure, in the person of its subjects, respect for the rules of international law.136 However, this construct was only a fiction137 to allow protection of the rights of the injured foreign national in a legal environment which recognised only inter-State interactions. As the Commentary to the DADP notes, it was recognised even in Mavrommatis that a State invoking diplomatic protection does not “in reality” assert only its own right, but also that of its injured nationals. In modern times “the situation has changed dramatically”.138 The individual is the subject of many primary rules of international law in treaty and in custom which protect him/her both at home and abroad, and the status of individuals as right-holders has been recognised by the International Court
133 ARSIWA, op. cit. (note 5), Article 42.
134 International Law Commission, Draft Articles on Diplomatic Protection (2006) with Commentary, available at: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf.
135 Id., 22.
136 Mavrommatis Palestine Concessions case (Greece v UK), PCIJ Reports (Series A) No. 2 (PCIJ, 1924), 12. 137 Brierly calls it an “exaggeration”; J. Brierly, The Law of Nations: An Introduction to the International Law of Peace 6th ed. (Sir H. Waldock (ed.) (Clarendon Press, Oxford, 1963), 276-277.
31 of Justice.139 That said, these primary rules of international law protecting individuals’ rights are not evenly spread across all areas of international intercourse, and many (perhaps most) exist in the commercial, human rights or consular relations arenas.
For violations of IHL and of IHRL during wartime, diplomatic protection has been the most important mechanism for securing a remedy at the inter-State level throughout most of history. Article 1 of the DADP is phrased in a way that leaves open whether the claimant State is exercising its own right or that of its injured nationals, although it emphasises that diplomatic protection is a State-centric procedure. As the Commentary puts it, “[a]s a claim brought within the context of State responsibility it is an inter-State claim, although it may result in the assertion of rights enjoyed by the injured national under international law”.140
While this remark suggests the injured national enjoys “rights... under international law”, the law of diplomatic protection has historically been silent as to whether the State is required to distribute the compensation it receives to that injured national or whether it may keep it as part of its own revenue to dispose of otherwise. Due to the Mavrommatis Palestine Concessions case among others, the view persists that the State has an absolute discretion as to how to dispose of the reparation, and this has been reflected in a number of decisions.141 Regarding State practice, on the one hand there are instances where States have accepted lump sums for multiple claims which have resulted in individuals receiving much less than they claimed, but on the other some States have enacted national legislation which has required the distribution of diplomatic awards to relevant individuals.142 In Europe, the ECtHR has asserted that where an international agreement provides for compensation there may even be an enforceable right on the part of injured nationals to that compensation143, however this view may be specific to the European human rights regime. Article 19 of the DADP,
139 For example, the La Grand case (Germany v United States of America), ICJ Reports (2001), paras 76-77 (466), and Case concerning Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports (2004), para 40 (12), both dealing with Article 36 of the Vienna Convention on Consular Relations 1963. If the facts of Mavrommatis arose today, the complainant would not need to rely on diplomatic protection as modern international arbitration mechanisms offer a range of options to establish standing for claims. 140 Draft Articles on Diplomatic Protection (2006) with Commentary, 26.
141 Lonrho Exports Ltd v Export Credits Guarantee Department [1996] 4 All ER 673, 687; and the dictum of Umpire Parker of the US-German Mixed Claim Commission in Administrative Decision V, VII UNRIAA 119, 152.
142 See again the comments of Umpire Parker in Administrative Decision V, ibid.
32 entitled “recommended practice”, states at (c) that States should transfer compensation obtained for injury to its nationals to those nationals (minus any necessary deductions), but clearly this does not have binding force. Overall it is unclear whether this has reached the status of a customary rule.144 For individuals, a further drawback of having to rely on the mechanism of diplomatic protection to secure their rights is that it is the sole prerogative of the State as to whether to exercise that protection, that is, the State is under no duty to do so in international law. This was confirmed by the International Court of Justice in the Barcelona Traction case (1970)145:
Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to municipal law, if means are available, with a view to furthering their cause or obtaining redress...The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It remains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case.146
Of course, there may be a remedy in the domestic law of the responsible State itself, and diplomatic protection can only be invoked after the injured nationals have exhausted all such options: this is spelt out in Article 14 (subject to the exceptions in Article 15) and is a settled principle of customary international law.147 [If however the injury can be characterised as a “direct” injury to the State itself then this will not apply.]148
It is notable that Article 16 of the DADP confirms that the availability of diplomatic protection does not affect other actions or procedures under international law that may be available to secure redress for injury as a result of a wrongful act, such as human rights treaty and/or customary law. The customary law on diplomatic protection is complementary to laws for the protection of human rights,
144 Draft Articles on Diplomatic Protection (2006) with Commentary, 94-95, 98-99.
145 Case concerning the Barcelona Traction Light and Power Company Limited (Belgium v Spain), Second Phase, Judgment, [1970] ICJ Reports 4.
146 Id., para 78-79.
147 Draft Articles on Diplomatic Protection (2006) with Commentary, 71.
148 In practice, it is sometimes difficult to decide whether a “mixed” claim is “direct” (injury to the State itself) or “indirect” (injury to the State in the person of its nationals) - see Draft Articles on Diplomatic Protection (2006) with Commentary, 74-76.
33 although the sphere of action afforded to States under the latter is broader (for example in allowing protection of non-nationals (see Chapter 3). The ARSIWA also allow claims in relation to obligations owed erga omnes.149
It is clear that the rules on diplomatic protection apply equally during times of peace and times of armed conflict. If the latter however, diplomatic protection will be highly dependent on the State’s political and strategic alliances and views on the conflict in which its national suffers loss. There is some support for there being an obligation on the State of nationality to extend diplomatic protection in the case of nationals suffering serious injuries150 (such as serious abuses of IHRL or of IHL). Article 19(a) only recommends that States consider doing so, thus reflecting the fact that such a requirement derives from national, not international, law. Further, diplomatic protection is obviously not available for nationals injured by their own State.