This article needs additional citations for verification .(November 2020) |
Legal status of persons |
---|
![]() |
Birthright |
Nationality |
Immigration |
In international law, diplomatic protection (or diplomatic espousal) is a means for a state to take diplomatic and other action against another state on behalf of its national whose rights and interests have been injured by that state. Diplomatic protection, which has been confirmed in different cases of the Permanent Court of International Justice and the International Court of Justice, is a discretionary right of a state and may take any form that is not prohibited by international law. It can include consular action, negotiations with the other state, political and economic pressure, judicial or arbitral proceedings or other forms of peaceful dispute settlement.
Diplomatic protection traces its roots to the eighteenth century. The idea that a state has a right to protect its subjects who are abroad has been expressed by Emmerich de Vattel in his Law of Nations :
Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen. [1]
Since this protection could take any form whatsoever, the doctrine has often been misused by Western powers as a pretext to intervene in the affairs of less powerful nations, sometimes resorting to the use of force (for example in China during the Boxer Rebellion and Venezuela in the early twentieth century). As a result, the doctrine of diplomatic protection has attracted much criticism, particularly in former colonies. Specifically, in Latin America, the Calvo Doctrine was devised to avoid the invocation of diplomatic protection by Western nationals. Nevertheless, diplomatic protection has been recognized as customary international law by international courts and tribunals as well as scholars. After the Second World War, with the use of force being outlawed as an instrument of international relations, diplomatic protection usually takes other forms, such as judicial proceedings or economic pressure.
In 2006, the International Law Commission adopted draft Articles on Diplomatic Protection, for regulating the entitlement and the exercise of diplomatic protection, largely codifying established practice. These draft Articles have not been submitted to a conference to formalize them into a treaty. [2] [3]
Traditionally, diplomatic protection has been seen as a right of the state, not of the individual that has been wronged under international law. An injury to an alien is considered to be an indirect injury to his home country and in taking up his case the state is seen as asserting its own rights. [4] In its famous Mavrommatis Judgment of 1924, the Permanent Court of International Justice summarized this concept as follows:
It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. 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 rights - its right to ensure, in the person of its subjects, respect for the rules of international law. [5]
Hence, under general international law, a state is in no way obliged to take up its national's case and resort to diplomatic protection if it considers this not to be in its own political or economic interests.
Customary international law recognises the existence of certain requirements that must be met before a state can validly espouse its national's interest. The two main requirements are exhaustion of local remedies and continuous nationality.
Diplomatic espousal of a national's claims will not be internationally acceptable unless the national in question has given the host state the chance to correct the wrong done to him through its own national remedies. Exhaustion of local remedies usually means that the individual must first pursue his claims against the host state through its national courts up to the highest level before he can ask the state of his nationality to take up those claims and that state can validly do so. [6]
The second important requirement is that the individual who has been wronged must maintain the nationality of the espousing state from the moment of injury until at least the presentation of the claim by way of diplomatic espousal. [7] If the nationality of the individual in question changes in the meantime, the state of his former nationality will not be able validly to espouse his claims. The claim by a state on behalf of its national may also be dismissed or declared inadmissible if there is no effective and genuine link between the national concerned and the state that seeks to protect him (see the International Court of Justice judgment in the Nottebohm case).
The International Court of Justice, or colloquially the World Court, is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations (UN), and is located in The Hague, Netherlands.
In United States constitutional law, the political questiondoctrine holds that a constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to the U.S. Congress, or the President of the United States, lies within the political, rather than the legal, realm to solve, and judges customarily refuse to address such matters. The idea of a political question is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has the authority to hear and decide a legal question, not a political one. Legal questions are deemed to be justiciable, while political questions are nonjusticiable. One scholar explained:
The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.
The Permanent Court of International Justice, often called the World Court, existed from 1922 to 1946. It was an international court attached to the League of Nations. Created in 1920, the Court was initially well-received from states and academics alike, with many cases submitted to it for its first decade of operation.
The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. Its aim is to facilitate "the development of friendly relations" among governments through a uniform set of practices and principles; most notably, it codifies the longstanding custom of diplomatic immunity, in which diplomatic missions are granted privileges that enable diplomats to perform their functions without fear of coercion or harassment by the host country. The Vienna Convention is a cornerstone of modern international relations and international law and is almost universally ratified and observed; it is considered one of the most successful legal instruments drafted under the United Nations.
The terms moot, mootness and moot point are used in both English and American law, although with different meanings.
United States v. Morrison, 529 U.S. 598 (2000), is a U.S. Supreme Court decision that held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded the powers granted to the US Congress under the Commerce Clause and the Fourteenth Amendment's Equal Protection Clause. Along with United States v. Lopez (1995), it was part of a series of Rehnquist Court cases that limited Congress's powers under the Commerce Clause.
Res judicata or res iudicata, also known as claim preclusion, is the Latin term for judged matter, and refers to either of two concepts in common law civil procedure: a case in which there has been a final judgment and that is no longer subject to appeal; and the legal doctrine meant to bar relitigation of a claim between the same parties.
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights (ECHR) in Strasbourg.
R v Secretary of State for Transport was a judicial review case taken against the United Kingdom government by a company of Spanish fishermen who claimed that the United Kingdom had breached European Union law by requiring ships to have a majority of British owners if they were to be registered in the UK. The case produced a number of significant judgements on British constitutional law, and was the first time that courts held that they had power to restrain the application of an Act of Parliament pending trial and ultimately to disapply that Act when it was found to be contrary to EU law.
The Vienna Convention on Consular Relations is an international treaty that defines a framework for consular relations between sovereign states. It codifies many consular practices that originated from state custom and various bilateral agreements between states.
Clausula rebus sic stantibus is the legal doctrine allowing for a contract or a treaty to become inapplicable because of a fundamental change of circumstances. In public international law the doctrine essentially serves an "escape clause" to the general rule of pacta sunt servanda. Because the doctrine is a risk to the security of treaties, as its scope is relatively unconfined, the conditions in which it may be invoked must be carefully noted.
The Master Nationality Rule is a consequence of Article 4 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws of 1930, a treaty ratified by twenty-three parties. This provides that "a State may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses".
Barcelona Traction, Light and Power Company (BTLP) was a Canadian utility company that operated light and power utilities in Catalonia, Spain. It was incorporated on September 12, 1911 in Toronto, Ontario, Canada by Frederick Stark Pearson. The company was developed by Belgian-American engineer Dannie Heineman.
The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Pakistan, and Uganda. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted. Bangladesh is perhaps the only legal system in the world which recognizes this doctrine with an expressed, written and rigid constitutional manner through article 7B of its Constitution.
Judicial review is a part of UK constitutional law that enables people to challenge the exercise of power, usually by a public body. A person who contends that an exercise of power is unlawful may apply to the Administrative Court for a decision. If the court finds the decision unlawful it may have it set aside (quashed) and possibly award damages. A court may impose an injunction upon the public body.
In most legal systems of the Spanish-speaking world, the writ of amparo is a remedy for the protection of constitutional rights, found in certain jurisdictions. The amparo remedy or action is an effective and inexpensive instrument for the protection of individual rights.
Nottebohm case [1955] ICJ 1 is the proper name for the 1955 case adjudicated by the International Court of Justice (ICJ). Liechtenstein sought a ruling to force Guatemala to recognize Friedrich Nottebohm as a Liechtenstein national. The case has been cited in many definitions of nationality.
The Lexington Principles on the Rights of Detainees is a body of international due process principles that reflect the prevailing transnational norms in the area of detainee treatment. The Lexington Principles were completed and published on April 1, 2009. The instrument consists of 45 principles and countless annotations prepared by the project's law student editorial board. A primary purpose of the drafters of the Lexington Principles was to assist the jurisprudential evolution of American constitutional due process standards after the U.S. Supreme Court's decision in Boumediene v. Bush. While each Principle is based on international law, all provisions have been drafted to facilitate vertical norm internalization into the domestic legal system of the United States and other common law countries.
Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ 1 is a public international law case, concerning the abuse of rights.
The Convention on Certain Questions Relating to the Conflict of Nationality Laws was a League of Nations convention adopted during the League of Nations Codification Conference, 1930 in The Hague. It was signed by many states, but ratified by only twenty-three.