History
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]
The nature of diplomatic protection
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.
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.
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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.
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