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This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple nationality, the effective link theory, and stateless persons and refugees. It shows that the ILC has drafted a provision extending the principles of diplomatic protection adopted for corporations to other legal persons to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10, respectively, apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations.

This chapter argues that, at the basis of the traditional conception of the norms on treatment of aliens and of the norms on diplomatic protection, there are, in substance, two very clear ideas: a) the individual is not a holder of individual rights in international law; and b) the legal regime of human rights is separate and does not affect the two interconnected legal regimes of treatment of aliens and diplomatic protection. However, it is shown that in contemporary international law these two ideas have changed or, at least, are rapidly changing. The chapter examines these two processes of change and the way they have affected or are possibly going to affect the legal regime of diplomatic protection. It looks at the new role of the individual and of individual rights in international law, and then the impact of human rights law.

This chapter reviews the use of diplomatic protection as a means of vindicating the rights of foreign investors. It is an appropriate time to reconsider the issue as the International Court of Justice (ICJ) will have to determine the current scope of general international legal protection for foreign investors in the continuing Diallo case. In the overwhelming majority of cases, a method other than diplomatic protection will be used to settle investment disputes. Nonetheless, given that cases such as that concerning Diallo can arise from time to time, the ICJ may need to provide some means by which such disputes can be effectively resolved. However, given the sensitive sovereignty issues in such cases, it would be no surprise if the ICJ avoids getting into the details of international investment law and gives a narrow fact-based decision in Diallo without engaging in judicial creativity, preferring to leave the further development of investor protection rights to treaty-based regimes.

This chapter explores the duty or absence of a duty of States to protect their nationals abroad against a host State. The traditional view that a State has a right to protect nationals, but no duty to do so, is upheld. Hence, under international law a State has no duty to protect its nationals. This is so, even though, pursuant to the laws of some States, the State may have a duty — enforceable under national law — to protect its nationals. Those national provisions must be regarded as insufficient to establish a consistent practice with an opinio iuris giving rise to a customary rule of international law. The duty to protect, recognized in some national laws, is not a duty which States regard as obligatory even if the practice is sufficiently widespread — which it may not be.

This chapter begins with a brief history and definition of diplomatic protection. The law relating to diplomatic protection emerged as part of international law long after the Peace of Westphalia (1648), which gave birth to the nation State and modern international law. It was only during the early part of the 19th century that the institution of diplomatic protection asserted itself in the field of international law and jurisprudence. An overview of the subsequent chapters is presented. The chapter also describes important sources and references used in this book.

This chapter focuses on the rule of exhaustion of local remedies. The rule states that where there has been a violation of international law in the treatment of an alien by a State, local remedies must be exhausted by the alien before his claim may be espoused by his national State. In the modern law of diplomatic protection, the raison d'être of the rule is the recognition given by members of the international community to the interest of the host State, flowing from its sovereignty, in settling international disputes of a certain kind by its own means before international mechanisms are invoked. The scope of the rule, exceptions and limitations, waiver of the rule, and inapplicability of the rule are discussed.

This chapter examines the influence of human rights law on the law of diplomatic protection. The remedial law of human rights protection may influence the law of diplomatic protection in the area of the exhaustion of local remedies. There have been developments in the application of the rule of domestic remedies to human rights protection, albeit under conventional law, which could affect the application of the rule in the diplomatic protection of aliens.

Chapter 2 examines the emancipatory potential and limits of the right to have rights conceived in terms of the right to a nationality. Four different conceptions of the right are examined and critiqued—the formal, human rights, democratic governance, and substantive belonging approaches, with the author favouring the latter. Whichever conception is adopted, however, it is argued that nationality risks usurping humanity such that the subject of rights becomes the national alone.

This chapter presents some concluding observations. Topics discussed include the continued survival of diplomatic protection as an institution; the factors that intervened in progressive development of the international law of the rights of the alien; and the overlap between the law of State responsibility in general and the law of diplomatic protection. It argues that that diplomatic protection as a remedial process must continue to exist and be used. The proper way of dealing with the problem of the perceived absence of adequate protection for the individual, in this case the alien, is to replace diplomatic protection as a remedial means of asserting rights with an appropriate international forum or appropriate international fora to which aliens would have access.

This chapter begins with a brief explanation of the approach used by the Committee on International Human Rights Law and Practice in preparing their report on the relationship between general international law and international human rights law. It then discusses the structure of international obligations, the formation of customary international law, treaty law, international law and domestic law, immunity, diplomatic protection, the right to consular notification, and state responsibility.

This chapter begins by tracing the origins of the doctrine of diplomatic protection and it then provides a brief analysis of the jurisprudence of the ICJ's predecessor, the Permanent Court of International Justice. It then discusses the development of the law of diplomatic protection by the ICJ by reference to four general topics: the scope of the doctrine (and in particular the Vattelian fiction which gives rise to the rule that the state has a right, but not an obligation, to pursue diplomatic protection claims); the rule on nationality of claims; claims to vindicate injuries suffered by shareholders; and the broader question of interaction between the law of investment claims and the law on diplomatic protection.

The international wrong committed by the responsible or host State generates an international responsibility which causes the legal relationship between it and the national State of the alien to change, so that the latter could require the responsible or host State to take certain remedial measures. These remedial measures stem from State responsibility and are reflected in the general law of State responsibility. This chapter discusses general principles applicable to State responsibility that are relevant to diplomatic protection that result from the violation of international rules relating to the treatment of aliens.

This chapter explores the effect of investment treaties and international investment law on the law of diplomatic protection. Specifically, it discusses the articles of International Centre for Settlement of Investment Disputes (ICSID) and the bilateral investment treaty (BIT). ICSID procedures for the settlement of disputes are frequently used in investment disputes and provide an alternative to diplomatic protection favoured by national States and their nationals. BITs incorporate different forms of arbitration for the settlement of investor-State disputes. Several treaties refer to different kinds of arbitration to which parties may agree. They also provide that in the absence of agreement between the parties on this matter the dispute shall be settled by arbitration according to a particular one of the mentioned forms.

This chapter discusses violation of international law and the exercise of diplomatic protection. Diplomatic protection is exercised by the national State, in the case of a violation of international law in respect of the person or property of an alien. International law governs the question whether such a violation of international law has taken place, though it may refer to national law for determining whether a violation of international law has occurred. The injury to person or property when caused by the State is to be characterized as a violation of international law in any case by the application of the international minimum standard applicable to the treatment of aliens. Where the initial wrong is not a violation of international law by the host State, resort or an attempted resort to local remedies must take place, or local remedies must be activated before an international wrong, which is a violation of the host State's international obligations, can occur.

This chapter compares and contrasts the three principal international regimes for the protection of property rights: diplomatic protection, investment law, and human rights law. It examines their sources of law, the beneficiaries and parties, access to dispute settlement, and enforceability. The differences between the regimes are sometimes profound. In diplomatic protection and human rights law, for instance, international courts and tribunals have adopted the basic contours of the rights pertaining to the ownership of shares as it exists in domestic law, such that a shareholder cannot bring a claim for the diminution of the value of its shares save in exceptional circumstances. This approach has not been followed in investment treaty arbitration, where such claims are routinely accepted as admissible. Nationality plays an important role for the jurisdiction of the tribunal or the admissibility of claims in the context of investment law and diplomatic protection but not in human rights law. These differences illustrate how much care must attend the transplantation of solutions found in diplomatic protection and human rights law into investment law.

Questions surrounding the rights of States and individuals under the Vienna Convention on Consular Relations (VCCR) have received significant attention from the International Court of Justice (ICJ) over the past two decades. In three cases before the Court, Paraguay, Germany, and Mexico have submitted claims in which they have sought to protect the individual rights of their citizens by applying the international legal principles of diplomatic protection and consular assistance enshrined in the VCCR. Within each of these cases, the Court has adjudged the respect for the rights of States and their nationals when finding that a breach of due process of law has occurred. Through the LaGrand case and the Avena case, respectively, Germany and Mexico have each played critical roles in preserving individual rights guaranteed by the VCCR.

In a situation in which the international responsibility of a State for an injury to an alien is invoked and in which diplomatic protection may be exercised, several conditions must be fulfilled in respect of the respondent State's position. Apart from other requirements, there must be an act or omission of a person or a group of persons and this must be attributable (or imputable) to the respondent State. This attribution is a matter for international law, though the internal or national law of the State may be recognized as applicable by international law. This chapter deals with the attribution (or imputation) to the host or respondent State of violations of substantive primary rules, which relates to its objective capacity to be a respondent.

Under the heading of Part I of the book, Chapter 1 lays the groundwork for the legal and policy discussions following in later chapters. The notion of ‘treaty shopping’—or corporate (re)structuring—not having a legally binding definition, the chapter explains where the notion comes from, elaborates a working definition for the purposes of the research, presents the different categories of treaty shopping examined in the research, and sets treaty shopping apart from forum shopping. It also explores the reasons for the occurrence of, and increase in, treaty shopping in international investment law, namely the proliferation of international investment agreements, the paradigm change from the protection of foreign investors through diplomatic protection to their direct right to sue host States, and the ease with which legal entities may nowadays be incorporated in many domestic jurisdictions, making corporate structuring or restructuring attractive.