Diplomatic Protection

by

Stephan Wittich

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0020

Introduction

Diplomatic protection is one of the traditional concepts of classical international law that has developed over the centuries. It denotes the process by which a state asserts a claim against another state because one of its nationals has been treated by the latter in violation of international law. Initially, it was mainly exercised by capital-exporting countries (i.e., western European countries and the United States) against capital-importing countries (i.e., mainly countries in Latin America), and, because it was frequently applied in an abusive manner by the former, subject to criticism. The essentials of the institution—its rationale, function, and conditions—are today largely uncontested, and general reference works disclose a marked consistency in their approach to the concept. However, the law on diplomatic protection and its development also reflect the structural change of international law itself, and how it has moved from a legal order strictly based on state-to-state relations, in which the holder of the right at issue is the state, towards a legal order that lays more emphasis on the protection of the individual. This is most striking in the fields of human rights protection and international investment protection. In both areas of international law, specific regimes of protection have supplemented diplomatic protection, at times even derogating to a significant extent from the traditional concept. Nevertheless, diplomatic protection still plays a key role in protecting the rights of nationals abroad. Particularly in view of the lack of universally applicable complaint mechanisms for either human rights violations or investment disputes, diplomatic protection as a well-established concept of customary law is the only means for enforcing the rights of individuals in case of their breach.

General Overviews

General works on diplomatic protection that cover the concept in its entirety are relatively rare. Traditional mainstream works focus on problems that occur in its application practice, such as the conditions for the exercise of diplomatic protection or related concepts. Borchard 1915 is the classic work on the topic and, while largely outdated, is still interesting to read. Lillich 1983 assembles various authors addressing different topics. García-Amador 1984 offers a critical view on diplomatic protection. It is written from the perspective of Third World countries and against the background of decolonization. Ress and Stein 1996 and Flauss 2003 are multiauthor books dealing with individual aspects of diplomatic protection and analyzing the concept from different perspectives. Amerasinghe 2008 is the most recent monograph on diplomatic protection. Its traditional view, while putting diplomatic protection into contemporary perspective, defends the need and usefulness of the concept and clearly expresses a state-centric perception of the problem. On the other hand, younger scholars present a more inclusive approach to diplomatic protection (see Vermeer-Künzli 2007 and Touzé 2007). They present the current state of the law on diplomatic protection comprehensively and put it into the perspective of a more anthropocentric approach to the protection of the rights of individuals. These monographic books are supplemented by the articles of the former Special Rapporteur on the topic, who gives a concise introduction and overview in Dugard 2003 and Dugard 2010.

• Amerasinghe, Chittharanjan F. Diplomatic Protection. Oxford: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780199212385.001.0001

  Contains discussions of related issues pertaining to other fields of international law (such as attribution or remedies). Briefly touches upon more recent developments, especially human rights and international investment protection. Asserts the conceptual premise that diplomatic protection is a right of the state rather than of the individual concerned.

• Borchard, Edward M. The Diplomatic Protection of Citizens Abroad, or, the Law of International Claims. New York: Banks Law, 1915.

  The first comprehensive doctrinal study on diplomatic protection, and a classic reading on the topic. Has influenced later developments and writings.

• Dugard, John. “Diplomatic Protection.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Amsterdam: North-Holland, 2003.

  The former Special Rapporteur on Diplomatic Protection provides an accessible and very helpful overview of the topic in the online edition of the most authoritative encyclopedia of international law. Largely along the lines of the ILC Articles, Dugard also discusses issues of diplomatic protection in the context of international organizations. Available online by subscription.

• Dugard, John. “Diplomatic Protection.” In The Law of International Responsibility. Edited by James Crawford, Alain Pellet, and Simon Olleson, 1051–1072. Oxford: Oxford University Press, 2010.

  Concise presentation of the topic by the previous Special Rapporteur on the topic. Very useful due to its completeness and brevity.

• Flauss, Jean-François. La protection diplomatique: Mutations contemporaines et pratiques nationales: Actes de la journée d’études du 30 mars 2001 organisée à la mémoire de Georges Perrin. Brussels: Bruylant, 2003.

  Multiauthor book covering a great variety of issues concerning diplomatic protection. Apart from presenting the general concept, it also addresses the question of the change in diplomatic protection in more recent times, especially under the parallel regimes of human rights protection and other special mechanisms of protection. Generally advocates the importance of diplomatic protection given the still inadequate efficacy of human rights protection.

• García-Amador, Francisco V. The Changing Law of International Claims. 2 vols. New York and London: Oceana Publications, 1984.

  Comprehensive review of the entire substantive and procedural rules of diplomatic protection, written by the first Special Rapporteur on State Responsibility. Treats individual aspects in great detail and provides a well-reasoned criticism of the traditional concept against the background of the New International Economic Order. Suggests a revision of the traditional standard (e.g., concerning the Calvo clause or in relation to issues of expropriation and compensation).

• Lillich, Richard B., ed. International Law of State Responsibility for Injuries to Aliens. Charlottesville: University Press of Virginia, 1983.

  A collection of essays covering various aspects of diplomatic protection. Result of the work of the “American Society of International Law Panel on the Law of State Responsibility.”

• Ress, Georg, and Torsten Stein. Der diplomatische Schutz im Völker- und Europarecht: Aktuelle Probleme und Entwicklungstendenzen. Baden-Baden: Nomos, 1996.

  A sort of festschrift dedicated to K. Doehring with contributions by various authors on the topic. Covers the various aspects of diplomatic protection, including the relationship to human rights protection or diplomatic protection under EU law. Useful illustration of the traditional approach to diplomatic protection.

• Touzé, Sébastien. La protection des droits nationaux à l’étranger: Recherches sur la protection diplomatique. Paris: Pedone, 2007.

  Contrasts the traditional state-centric view with a more progressive idea that there is considerable room for recognizing an individual right to protection. Also presents a critical study covering human rights protection and investment protection. Extends the analysis to different legal orders. Advocates a “mixed” approach, according to which the ultimate goal of diplomatic protection is the protection of the rights of the individual, and argues the concept has to evolve accordingly.

• Vermeer-Künzli, Annemarieke. The Protection of Individuals by Means of Diplomatic Protection: Diplomatic Protection as a Human Rights Instrument. PhD diss., Leiden University, 2007.

  Provides an in-depth analysis of the nature of diplomatic protection, the modalities of its exercise, its relation to the general law of state responsibility, and its application in practice in current international law. Argues that diplomatic protection is an appropriate mechanism for the protection of individual (human) rights. Resort to this mechanism by states should be encouraged in order to increase protection against violations of individual rights.